Jai Prakash vs. The State Of Uttarakhand

2025 INSC 861
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 331 - 332 OF 2022

JAI PRAKASH … APPELLANT(S)

Versus

STATE OF UTTARAKHAND …RESPONDENT(S)



J U D G M E N T



SANJAY KAROL, J.

1. A simple afternoon of play and frolic with family members
Signature Not Verified
Digitally signed by
NAVEEN D
Date: 2025.07.16
18:11:55 IST
Reason:
yielded catastrophic results for a 10-year-old female child. The
most innocent desire of either a candy or a toy was exploited in the
Criminal Appeal Nos.331-332/2022 Page 1 of 17

worst manner possible by the appellant. He lured innocent children
to his dwelling, took his pick from among them and let the others
go. He allegedly assaulted and exploited her, killed her and then, if
the prosecution is to be believed, lied to the parents of the victim
saying that he was not aware of her whereabouts. The Courts below
have concurrently found the appellant to be guilty of offences
against the victim and also of taking her life. This Court is now
called upon to examine the correctness of these conclusions.
2. The present Appeals arise from the final judgment and order
th
dated 7 January 2020, passed by the High Court of Uttarakhand at
Nainital in Criminal Jail Appeal No.64 of 2019 & Criminal
Reference No.02 of 2019, whereby the Judgment and sentencing
th th
Order dated 26 /28 August 2019 passed by Fast Track Court,
Special Judge (POCSO)/Additional District and Sessions Judge,
Dehradun, in Special Sessions Trial Number 119/2018, convicting
the appellant under Sections 376, 377, 302 of the Indian Penal Code,
1
1860 and Section 5/6 of the Protection of Children from Sexual
2
Offences Act, 2012 came to be affirmed. The punishment handed
down to the appellant by the Courts below was of death penalty, for
3
the murder of the victim, whose name stands redacted in view of
4
the judgment of this Court in Nipun Saxena v. Union of India .

1
hereinafter referred to as ‘IPC’
2
hereinafter referred to as ‘POCSO’
3
hereinafter referred to as ‘X’
4
(2019) 2 SCC 703
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Prosecution Case

3. The case set out by the prosecution against the appellant, as
emerging from the record and also as set out by the Courts below, is
as under :
th
3.1 On 28 July 2018, at around 12:30 p.m., while playing
outside her house, with cousins and friends, X the child of
PW1 went missing. Concerned, PW1 - Sant Pratap ( father of
the victim ) started looking for his daughter. On enquiry, from
other children present, he got to know that the appellant took
all the children to his hut and gave them Rs.10/- each to go to
the shop. Somwati - PW13, his sister-in-law also corroborated
the version of the children. When he asked the appellant
regarding the whereabouts of her daughter, he was apparently
told that she had taken the gift of 10 rupees note and left the
place. Eventually, after a few hours of exasperated searching,
which included Kulbhushan - PW2 sending one Mohd. Alam
- PW3, to search the hut of the appellant, the victim was found
dead underneath empty cement bags. PW1, therefore, lodged
an FIR at P.S. Sahaspur, District – Dehradun. It was stated
therein that he resided with his family in a hut, in the under-
construction premises of Shivalik Engineering College,
narrating the facts as above, asking for action to be taken
against the appellant.
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3.2 After registration of the abovementioned FIR, the
Investigating Officer commenced the investigation. The
inquest report was prepared, and the body of X was sent for
post-mortem to Dr. Chirag Bahugana - PW4. The cause of
death came to be determined as ‘ manual throttling by hand
causes asphyxia .’ After completion of the investigation,
charges were framed against the appellant under Sections
302, 201, 376 and 377 IPC and Section 6 of the POCSO Act.


Reasoning of the Courts below

4. The Trial Court, after careful consideration of the evidence-
th th
on-record, vide judgment and order dated 26 /28 August 2019,
convicted the appellant under Sections 376(AB), 377, 302 of the
IPC and Section 5/6 of POCSO. The Court arrived at the
following findings :

4.1 Master Rakesh - PW11, Rani @ Radha Rani - PW12, and
PW13 - Somwati have proven that X was last seen with
the appellant;
4.2 PW1, PW2, PW3, SI Lakshmi Joshi - PW5, Rani W/o Sant
Partap - PW8 and PW12 have proven the recovery of the
body of X from the hut of the appellant. Their testimonies
have withstood cross-examination;
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4.3 The DNA evidence obtained from X, matches with the
samples of the appellant. Dr. Manoj Kumar Aggarwal,
Scientific Officer, Forensic Science Laboratory,
Dehradun - PW17, has proven the report, Ex.Ka-43, to
that effect;
4.4 In view of the above circumstances, the prosecution has
proven its case beyond reasonable doubt;
4.5 The cruelty of the crime is displayed by strangulation by
hand of a defenseless child. The case at hand is ‘ rarest of
rare ’ and, therefore, the punishment of death penalty is
just and proper;
4.6 The order of sentencing highlighted the grave nature of the
crime. It was observed that the rarest of the rare test comes
into play when a person, by way of his crime which is
heinous or brutal, challenges the harmonious and peaceful
co-existence of the society, with reference to Sunderajan
5
v. State . It was held that the accused was in his 30s and
himself is the father of two children with one of these
children being similar in age to X. Since, as per his age,
he was mature enough to understand the implications of
his acts, no benefit could be given on this count. In the
sum total of facts and circumstances of this case, the

5
(2013) 3 SCC 215
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extreme penalty of death by hanging was found to be
justified.
5. The appellant preferred an Appeal before the High Court of
Uttarakhand at Nainital, which came to be numbered as Criminal
Jail Appeal No.64 of 2019. A reference for confirmation of the
death sentence was also submitted to the High Court, which came to
be numbered as Criminal Reference No.02 of 2019, in consonance
with Section 366 of the Code of Criminal Procedure, 1973. Vide the
impugned Judgment, the High Court confirmed the conviction and
death sentence awarded to the appellant, inter alia , r ecording that
the appellant himself admitted to being in his room on the date of
the offence and since the body of X was also found in his room, later
point to his having committed the crime. That apart, the DNA of
the appellant matched with the DNA which was found on the
undergarments of X, thereby directly pointing to his involvement
and guilt. The argument that PW-11 and PW12, who are child
witnesses, have been tutored, was rejected on account of the fact that
there is other evidence corroborating their statements against the
appellant. Regarding DNA, evidence reference has been made to
the report prepared by PW17, the relevant extract whereof is as
under:
“Conclusion:-

The DNA test performed on the exhibits provided as
sufficient to conclude that,
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1. The DNA obtained from Exhibits-4 and 5 (hair
recovered from deceased and underwear of accused) are
from a single male human source and matching with the
DNA obtained from the Exhibit-24 (blood sample of
accused).
2. The DNA obtained from the Exhibit-9 (underwear of
deceased) is matching with the DNA obtained from the
Exhibits – 23 and 24 (blood sample of deceased and
blood sample of accused).
3. The DNA obtained from the Exhibits –
13,14,15,16,17,18,19,20 and 22 (throat swab, throat
slide, internal vaginal swab, internal vaginal slide,
internal vaginal swab, internal vaginal slide and nails
clipping of victim) are from a single female human
source and matching with the DNA obtained from
Exhibit-23 (blood sample of deceased).”

On the aspect of sentencing, the concurring judgment makes
reference to a judgment of this Court Ram Naresh v. State of
6
Chattisgarh which has attempted to list out aggravating and
mitigating circumstances. In the end, it was observed that there
was no doubt as to the culpability of the appellant and in
actuality, the conclusion reached by the Court was from a point
of absolute certainty that this case qualified as the rarest of rare.

Issue for consideration

6. The question that arises for consideration before this Court is
whether the conviction and sentence imposed by the Trial Court, as
affirmed by the High Court, are sustainable in law or not.

6
(2012) 4 SCC 257
Criminal Appeal Nos.331-332/2022 Page 7 of 17

Our View

7. We have heard the learned Senior counsel for the appellant
and counsel for the Respondent-State. The case of the prosecution,
relies on the following circumstances against the appellant:
(a) Recovery of the body of X from the appellant’s hut.

(b) Last seen theory.
(c) DNA evidence, linking the appellant to X.

8. 17 witnesses came to be examined by the prosecution. A
tabular chart capturing their role in the investigation and their
relationship with X is as below:

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9. There is no dispute about the identity or the cause of death of
X. Dr. Chirag Bahugana - PW4, conducted the post-mortem of X.
In his deposition, he stated that the injuries on the body indicate
sexual assault. All injuries were caused prior to the death. The
causation of death was ascertained as strangulation by hand, after
the commission of forceful rape. The age of X also cannot be
doubted, on the basis of the evidence of PW9, the Headmaster of the
School, in which X was enrolled for studies. He verified that the
th
date of birth of X was 20 October 2008, which makes her 10 years
old on the date of the incident.
10. Coming to the recovery of the body, Mohd. Naiyar - PW-3,
had, at the first instance, searched the hut of the appellant. In his
deposition, he stated that the Contractor of the site (PW-2), told him
to go and search the hut of the appellant for X. Upon his search, he
discovered the dead body of X concealed under empty cement bags
in the corner of the hut. He identified his signatures on the
panchnama and the appellant in Court. His testimony stood the test
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of cross-examination and nothing was brought about to impeach his
credit or doubt his testimony. PWs 1 and 2, who support his
testimony, do state that PW3 informed them about the discovery of
X’s body, after which, the police report came to be lodged. They
identified their signatures on the recovery memos. SI Raj Vikram
Singh, PW10, deposed on similar lines, stating that the dead body
of X was lying in the hut of the appellant. Given the testimonies of
these witnesses, this circumstance has been rightly held by the
Courts below, as against the appellant.
11. The next circumstance against the appellant is that of last seen
theory. Somwati - PW13, deposed that she saw X and her children
being taken by the appellant, however only her children ( two in
number ) had left the hut. She also identified the appellant in Court.
This witness also stood the test of cross-examination. The children
who had accompanied X, also lend support to the last-seen theory.
Master Rakesh - PW10, deposed that the appellant handed them
Rs.10/- each, but stopped X in his hut, while he left with Rani. Rani
- PW11, supports this chain of events. Despite being minors, there
is nothing on record to disbelieve their testimonies, for we find the
witnesses to be inspiring in confidence and the children’s deposition
to be in a natural form. It cannot be doubted, therefore, in fact,
proven beyond doubt that the appellant was last seen with X inside
his hut on the date of the incident, and this was immediately prior to
Criminal Appeal Nos.331-332/2022 Page 10 of 17

the occurrence of the incident. In fact, they clearly established the
presence of the appellant inside the hut where no one else other than
him was present. It is nobody’s case that the other two roommates
residing with the appellant in the very same hut were also present
there. None has deposed about their presence either inside or
outside the hut or anywhere near the scene of occurrence of the
incident.
12. Coming to the DNA evidence of the case at hand, we must
advert to the testimony of, Dr. Manoj Kumar Aggarwal - PW17,
who conducted the FSL examination. Upon such examination, Ext.4
( hair found on the dead body of X ) matched with Ext.5 ( underwear
of the appellant ), both of which matched with the DNA sample of
the appellant. Furthermore, the DNA obtained from Ext.9
( underwear of the appellant ) matches with samples of both X and
the appellant. There is no infirmity which has been brought about in
the chain of the seizure of these articles and their consequent
examination by the appellant. Taking a cumulative view of all the
above circumstances, in our view, the prosecution has proven its
case against the appellant, beyond reasonable doubt.
13. In view of the above, we are not inclined to interfere with the
findings of conviction concurrent in nature against the appellant.
The Courts below have correctly placed reliance on the last-seen
theory and DNA evidence against the appellant. In our view, no
Criminal Appeal Nos.331-332/2022 Page 11 of 17

ground for interference, pointing out any infirmity in the findings of
the Courts below has been made out by the appellant, warranting
interference as far as conviction is concerned.
14. We now proceed to examine the sentence that has been
handed down to the appellant, i.e., death penalty. The case at hand
is one, based on admittedly circumstantial evidence. This Court in
7
Mohd. Farooq Abdul Gafur v. State of Maharashtra , expounded:

“164. Capital sentencing is not a normal penalty
discharging the social function of punishment. In this
particular punishment, there is a heavy burden on the
Court to meet the procedural justice requirements, both
emerging from the black letter law as also conventions.
In terms of rule of prudence and from the point of view
of principle, a Court may choose to give primacy to life
imprisonment over death penalty in cases which are
solely based on circumstantial evidence or where the
High Court has given a life imprisonment or acquittal.

165. At this juncture, it will be pertinent to assess the
nature of the rarest of rare expression. In the light of
serious objections to disparity in sentencing by this
Court flowing out of varied interpretations to the rarest
of rare expression, it is clear that the test has to be more
than what a particular Judge locates as rarest of rare in
his personal consideration. There has to be an objective
value to the term “rarest of rare”, otherwise it will fall
foul of Article 14. In such a scenario, a robust approach
to arrive at the rarest of rare situations will give primacy
to what can be called the consensus approach to the test.
In our tiered court system, an attempt towards
deciphering a common view as to what can be called to
be the rarest of rare, vertically across the trial court, the
High Court and Apex Court and horizontally across a

7
(2010) 14 SCC 641
Criminal Appeal Nos.331-332/2022 Page 12 of 17

conscious of the brutality of the crime in question. A helpless child
was at first, mercilessly raped after being lured into the appellant’s
hut on the pretext of buying sweets with the offered money.
Thereafter, to hide the evidence of his crime, the child was
strangulated by hand, in a defenseless condition. That being said,
8
this Court in Gudda v. State of M.P. , while commuting the sentence
of the appellant therein from death penalty to life imprisonment,
where the victims of the crime were a pregnant lady and a five-year
old child, had reiterated that the brutality of a crime cannot be the
only criterion for determining whether a case falls under the “ rarest
of the rare ” category. The Courts below have only commented on
the brutality of the crime in question, to hand down the death penalty
to the appellant. No other circumstance came to be discussed by the
Courts in reaching the conclusion that the case forms part of the
“ rarest of the rare ” category. Such an approach in our view cannot
be sustained.

8
(2013) 16 SCC 596
Criminal Appeal Nos.331-332/2022 Page 13 of 17

16. In Gudda (supra), it was further observed:

9
17. More recently, in Manoj v. State of M.P . , this Court had
recognized the disparity in the application of the “ rarest of rare ” test
for imposition of the death penalty and re-emphasized the two-step
process to determine whether a case belongs to the rarest of rare
category:

“224. This aspect was dealt with extensively in Santosh
Bariyar [Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2
SCC (Cri) 1150] where the Court articulated the test to
be a two-step process to determine whether a case
deserves the death sentence — firstly, that the case
belongs to the “rarest of rare” category, and secondly,
that the option of life imprisonment would simply not

9
(2023) 2 SCC 353
Criminal Appeal Nos.331-332/2022 Page 14 of 17

suffice. For the first step, the aggravating and mitigating
circumstances would have to be identified and
considered equally. For the second test, the court had to
consider whether the alternative of life imprisonment
was unquestionably foreclosed as the sentencing aim of
reformation was unachievable, for which the State must
provide material.”
(Emphasis supplied)


18. The Courts below have failed to make any detailed reference
to the aggravating and mitigating circumstances surrounding the
appellant. Moreover, the High Court, which was the Reference
Court for confirmation of death sentence, though expounded on the
requirement of law to consider aggravating and mitigating
circumstances, failed to consider any of these circumstances – only
dealing with the brutality of the incident.
19. In similar circumstances in Sundar @ Sundarrajan v. State
10
by Inspector of Police , this Court commuted the death sentence
awarded to the appellant therein, for murder of a seven-year-old
child while observing:

“81. No such inquiry has been conducted for enabling a
consideration of the factors mentioned above in case of
the petitioner. Neither the trial court, nor the appellate
courts have looked into any factors to conclusively state
that the petitioner cannot be reformed or rehabilitated. In
the present case, the Courts have reiterated the gruesome
nature of crime to award the death penalty.
….

10
2023 SCC Online SC 310
Criminal Appeal Nos.331-332/2022 Page 15 of 17

20. Coming to the mitigating circumstances relating to the
nd
appellant, this Court vide 2 March 2022, had called for the reports
of the probation officer, jail administration and psychological
evaluation of the appellant. It is borne from the report of the District
th
Probation Officer, Ayodhya, dated 12 April 2022, that the
condition of the family of the appellant is “ very pathetic ” and they
earned their livelihood by doing labor work.
21. The psychological report of the appellant was prepared on
th
19 April 2022. It is stated therein that the appellant could not
attend school due to the socio-economic condition of the family and
had started working at the age of twelve. He has good relations with
other inmates. He does not suffer from any psychiatric disturbance.
22. In light of the above discussion, taking into account the
above mitigating circumstances and the threshold of “ rarest of rare ”
category, we deem it appropriate to award life imprisonment without
remission extending to the natural life of the appellant instead of the
punishment of the death penalty.
Criminal Appeal Nos.331-332/2022 Page 16 of 17

23. Therefore, the present Appeals are partly allowed. The
th
impugned order dated 7 January 2020 passed by the High Court of
Uttarakhand at Nainital in Criminal Jail Appeal No.64 of 2019 &
Criminal Reference No.02 of 2019, is modified to the above extent.
Pending application(s), if any, shall stand disposed of.


………..….…………J.
(VIKRAM NATH)


…….…..….…………J.
(SANJAY KAROL)




……..……..…………J.
(SANDEEP MEHTA)
New Delhi
July 16, 2025
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