Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2486-2487 OF 2014
[Arising out of S.L.P. (Crl.) No. 330-331 of 2013]
Vasanta Sampat Dupare ... Appellant
Versus
State of Maharashtra ... Respondent
J U D G M E N T
Dipak Misra, J.
In these two appeals, we are required to deal with a sordid and
despicable act of a married man who, at the time of incident was in
wedlock for more than two scores having a criminal background, has
yielded not only to the inferior endowments of nature but also has
exhibited the gratification of pervert lust and brutish carnality. The
prey of such degradation and depravity was a minor girl aged about
Signature Not Verified
Digitally signed by
Gulshan Kumar Arora
Date: 2014.11.26
17:05:59 IST
Reason:
four years, daughter of Pinki, PW-1, and Krushna, PW-4. The
appellant, as per the prosecution version, after satisfying his
2
uncontrolled, insatiable and rapacious savage desire, battered the girl
to death. This led to his facing trial for the offences punishable
under Sections 302, 376(2)(f), 363, 367 and 201 of the Indian Penal
Code (for short, “IPC”) in Sessions Trial No. 252/2008 before the
Learned Additional Sessions Judge, Nagpur, who considering the
evidence on record and keeping in view the nature of the crime vide
judgment dated 23.02.2012 after recording the conviction in respect
of aforesaid offences, imposed the death sentence, apart from other
punishment in respect of other offences and sent, as required under
Section 366(1) of the Code of Criminal Procedure (for short, “CrPC”),
for confirmation by the High Court. The judgment of conviction and
the order of sentence was challenged by the appellant in Criminal
Appeal No. 112/2012 and it was heard along with the Criminal
Confirmation Case No.1 of 2012 wherein the Division Bench of the
High Court confirmed the sentence of death awarded by the trial
Court and as a logical corollary dismissed the criminal appeal
preferred by him. The said judgment is the subject of assailment in
the present appeal.
2. According to the prosecution case on 3.4.2008 about 9-10 p.m.,
informant, Krushna Dudhraj Sharma, father of the deceased, lodged a
report at the police station Wadi stating that he was staying in a
3
tenanted house with his wife and two daughters, the kidnapped girl
aged about 4 years and her sister aged about six months. One
Subhash Sonawane was residing along with his wife and son in the
neighbourhood of the informant as a tenant of the common landlord,
Kushal Bansod. The appellant, Vasanta Dupare, a friend of Subhash
Sonawane, was a frequent visitor to the house of Subhash. On the
fateful day when the informant, carpenter by profession, returned
home about 7.00 p.m., he found his wife weeping and on a query
being made, she disclosed that Vasanta Dupare had taken the elder
daughter on his bicycle while she was playing in the courtyard of the
house and she had not yet returned home. He, being perturbed,
searched for his daughter in the vicinity, but it was an exercise in
futility. Thus, the initial allegation was that the appellant had
kidnapped his minor daughter. On the basis of the aforesaid report, a
crime was registered against the accused for an offence punishable
under Section 363 of the IPC.
3. As the prosecution version further undrapes, on the same day,
Santosh Ghatekar, PW-13, Assistant Police Inspector, while returning
to the police station, received the information that the appellant was
moving around Gati Godown located on Khadgaon Road, and he
passed on the said information to Police Inspector D.J. Chauhan,
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PW-16, and eventually the appellant was apprehended and brought to
the police station. While in police custody, on 4.4.2008, he took the
investigating agency to the spot where he had after ravishing the
minor girl child had murdered her. A memorandum of panchnama to
that effect was prepared in the morning of 4.4.2008 and thereafter he
led the police to the place of incident wherefrom the dead body of the
minor girl was recovered. At his instance, the bicycle used was
recovered from the godown located in between Khadgaon to
Kamleshwar road belonging to one Ashwin Prakash Agrawal.
Thereafter, the initial offence registered under Section 363 IPC was
converted to offences under Section 376(2)(f), 367, 302 and 201 of the
IPC. The Investigating Agency examined number of witnesses under
Section 161 CrPC and completed all the formalities and laid the
chargesheet before the competent court which in turn committed the
matter to the Court of Session.
4. The accused-appellant pleaded his innocence and
non-involvement and took the plea that he had been falsely
implicated due to animosity.
5. The prosecution, to substantiate the charges levelled against the
appellant, examined 17 witnesses. After closure of the evidence of the
prosecution, the accused was examined under Section 313 of the
5
CrPC and he pleaded complete denial and false implication. The
defence chose not to adduce any evidence.
6. The learned trial Judge, on the basis of the evidence brought on
record came to hold that the mother of the minor girl, Pinki, PW-1,
knew the appellant because of his frequent visits to her neighbour
Subhash; that she had seen the accused in the courtyard where the
minor girl was playing along with other children; that she had also
seen him going on a bicycle from the behind; that Vandana Ramkar,
PW-5, had deposed categorically that while she was present outside
Chandrawanshi Hospital after finishing her work, she saw the
appellant going on the bicycle with the deceased and she had revealed
when Pinki had made an enquiry about her daughter; that Baby
Sharma, PW-6, and Minal @ Twinkle, PW-3, the child witness, have
also unequivocally deposed that they had seen the accused taking the
minor girl with him at the relevant time from the locality in question;
that Baby Sharma had further deposed that the minor girl had fallen
down from the bicycle near her shop and the cyclist had purchased
‘Minto Fresh’ for the girl who was wearing black top and blue skirt;
that she had identified the cyclist and also the photograph of the girl
who had accompanied the appellant at the relevant time; that
Subhash Sonawane, PW-11, had stated that the accused had been to
6
his house for repairing his tape recorder on that day; that version of
Subhash had received corroboration from his wife, Kavita, who has
deposed that her daughter Akanksha and the victim were playing in
the courtyard and at that juncture the appellant was standing in the
courtyard; that the appellant had told Akanksha and the daughter of
PW-1 that he would buy chocolates for them and, therefore, they
should accompany him; that it had come in the testimony of Kavita,
PW-12, that Akanksha, who was not having appropriate clothes on
her person came back home and by that time accused took the victim
girl on his bicycle; that Manisha, PW-2, who knew the appellant, had
deposed that he had come to her house on the bicycle along with the
girl and on being asked he had told her name and she was wearing
black top and blue midi and the accused had mentioned to her that
she was the daughter of his friend; that Baby Sharma, PW-6, had
identified the clothes of the deceased which were on her person on the
day of the incident and had also identified him that he was the person
who had taken the girl; that the panch witnesses Ramprasad, PW-7
and Anand Borkar, PW-8, had stood embedded in their testimony
about the recovery wherefrom the girl was taken and the place where
the dead body was found, and they had also remained firm in their
testimony proving the panchnama to indicate the seized incriminating
7
materials, that is, two stones smeared with blood, blood mixed sample
earth, branches of trees having blood stains, minto fresh and empty
chocolate wrappers and nikar and other clothes of the accused from
the spot; that the other two panch witnesses, namely, Purushottam
Gore, PW-9, and Sanotsh Keche, PW-10, had stated about the
parcels containing clothes of the deceased and various samples taken
from the body of the deceased, received from the hospital and the
recovery of the bicycle from the godown; and that nothing had been
elicited which would create any kind of concavity in the testimony of
these witnesses; and that the investigating officers had not given any
room for doubt; that the examining doctor, Dr. Prashant Barve, who
had conducted autopsy on the deceased had remained inflexible in
the testimony as regards the reports; and that the ocular and the
documentary evidence brought on record established beyond
reasonable doubt that the accused by alluring a minor girl of four
years for giving chocolates, had kidnapped her, raped her and caused
injuries; and also had intentionally made disappear the evidence of
the crime committed by him. On the aforesaid reasoning, the learned
trial Judge found the appellant guilty of the offences and treated the
same as a crime of extreme brutality, for he had committed rape on a
minor girl aged about four years without thinking about the effect on
8
the victim. It was also opined by the learned trial Judge that the
accused was in mid 40s and had caused injuries by crushing stones
weighing 8.5 kg. and 7.5 kg with force upon her when she was in
unbearable pains because of the ferocious act of rape and injuries
sustained by her; and that the accused was having criminal
antecedents as he was prosecuted for various offences in four cases.
Taking into consideration the totality of circumstances, that is, the
aggravating and the mitigating circumstances, the learned trial Judge
regarded the case as rarest of the rare cases and sentenced the
appellant to suffer death penalty under Section 302 IPC, life
imprisonment and fine of Rs.2,000/- with the default clause for the
offence punishable under Section 376(2)(f) of the IPC; rigorous
imprisonment for seven years and fine of Rs.1000/- with default
clause for the offence punishable under Section 363 of the IPC;
rigorous imprisonment for seven years and fine of Rs.1000/- with
default clause for the offence punishable under Section 367 of the
IPC; and rigorous imprisonment for three years and fine of Rs.1000/-
with default clause for the offence punishable under Section 201 of
the IPC with the stipulation that all the sentences relating to
imprisonment shall be concurrent and submitted the proceedings to
the High Court under Section 366(1) of the Code of Criminal
9
Procedure, 1973 for confirmation of death sentence by the High
Court.
7. As has been stated earlier, the appellant preferred a Criminal
Appeal assailing the conviction and the sentence and the High Court
appreciated the evidence afresh and found that the evidence of the
witnesses was impeccable and totally beyond reproach and the
prosecution had been able to prove the offences to the hilt. While
dealing with the confirmation of the sentence, the High Court referred
to various decisions and opined as follows:
“The accused raped a four years old girl and thereafter
battered and smashed her head by two heavy stones
and killed her. The aggravating circumstance as
pointed out by us must be such as would have
shocked the conscience of the community in general.
The accused had acted in diabolical manner and had
designedly lured the unsuspecting Muskan to
accompany him on the bicycle. Battering of the head
of the girl of tender years was done by the accused
with extreme cruelty. The crime has been committed
by the accused in an extremely cruel manner
exhibiting brutality and utter perversity. The history
sheet of the accused which is placed on record
exhibits several prosecutions against him. The
accused has not displayed any remorse or repentance
for the act done by him and we do not find any
material to indicate that there is a possibility of the
accused reforming himself. The accused would
continue to be a menace to the society and, therefore,
according to us, this is a rarest of rare case calling for
the extreme.
The mitigating circumstances which are brought on
record against the accused are that the accused is
10
middle aged man of 45 years with no previous
conviction so far. The accused is a married person
having a family. However, the aggravating
circumstances far out way the mitigating
circumstances and according to us, the extreme
penalty of death imposed by the trial court deserves to
be confirmed.”
8. We have heard Mr. Sanjiv Das, learned counsel for the appellant
and Mr. Shankar Chillarge, learned counsel for the respondent-State.
9. It is submitted by the learned counsel for the appellant that the
learned trial Judge as well as the High Court has committed gross
illegality in placing reliance on the testimony of the parents of the
deceased and other witnesses to establish the last seen theory, which
has really not been established. It is urged by him that the leading to
recovery of the dead body of the deceased and the clothes are not in
consonance with Section 27 of the Evidence Act. Learned counsel
would submit that the panch witnesses who have alleged to have
supported the prosecution story have really paved the path of
deviancy which has been lost sight of by the learned trial Judge as
well as by the High Court. It is his further submission that there are
material inconsistencies, contradictions and omissions, which had
seriously affected the prosecution’s case and the chain of
circumstances for implicating the accused in the crime has really not
been established. It is propounded by him that the witnesses who
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have been cited by the prosecution to establish the chain of
circumstances, fundamentally the last seen theory, cannot be given
credence to regard being had to the unacceptable contradictions and
infirmities. Finally, it is canvassed by the learned counsel for the
appellant that the present case could not fall under the category of
rarest of the rare cases warranting capital punishment and the
criminal background that has been taken into consideration by the
learned trial Judge as well as by the High Court is of not such nature
by which the appellant can be treated or regarded as a menace to the
society and, therefore, if this Court affirms the conviction, it should
substitute the punishment to that of life imprisonment.
10. Mr. Shankar Chillarge, learned counsel for the respondent-State
in support of the view expressed by the High Court, contends that the
prosecution has succeeded in proving the guilt of the appellant
beyond reasonable doubt and the scanning of the evidence by the
learned trial Judge, which has been re-appreciated by the High Court,
does not remotely indicate any contradiction or discrepancy. It is
proponed by him that all the witnesses have remained absolutely
unshaken in their version and nothing substantial has been elicited
from them during the cross-examination which could create a dent in
their testimony. Learned counsel would further contend that if the
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ocular and documentary evidence is appreciated in proper
perspective, there remains no scintilla of doubt that the appellant had
committed the brutal and heinous crime and in such a circumstance
when the society cries for justice, the Court should not show any
leniency for conversion of the sentence.
11. To appreciate the rival submissions raised at the Bar, we think it
appropriate to refer to the postmortem report of the deceased. The
said report by the doctor, namely, Dr. Prashant Barve, PW-15, which
has been brought on record as Exhibit 55, describes that at the time
of postmortem, the face was flattened, eyes closed, mouth partially
opened, tongue was clinched and lacerated between teeth, blood was
oozing through mouth, nostrils and ears. It was also noticed that dry
grass leaves adhered over body at back side and dry blood-stains
were present over face, neck, perineum and lower limb. He has found
the following injuries on the dead body of the deceased:
“1) Multiple scratch abrasions present over front of
chest and front of neck size varying from 1 cm x 1/4
th
cm, to 3 cm. x 1/4 cm., reddish brown.
2) Contused abrasion involving fore-head, eyes, nose,
both cheeks and lips red and dark red coloured,
underlying bone fractured, underlying, muscle
lacerated.
3) Multiple scratch abrasion present over left lower leg
th
and left foot size varying from ½ cm. x 1/4 cm., to 1
th
cm. x 1/4 cm., reddish brown.
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4) Multiple scratch abrasion present over back of trunk
rd th
upper 2/3 of size varying from 1 cm. x 1/4 cm. to 5
th
cm. x 1/4 cm., reddish brown.
5) Abrasion of size 1 cm. x ½ cm. present over left
knee, reddish brown.”
12. According to the doctor, he had found during internal
examination that under scalp haemotoma was present over left
frontal and right frontal region of size 4 cm. x 4 cm, dark red, the
frontal bone was fractured and depressed, fracture line extended up
to occipital bone through right temporal and parietal bone fracture on
interior and middle eranial side. The subarachined hemorrhage was
present all over the brain surface and meninges was congested. In
his opinion, the cause of death was head injury, associated with the
injury on the genital region. He has testified that the two stones that
were sent to him in sealed cover along with the requisition, Exhibit
62, for opinion, could have been used to cause the injuries on the
victim. He has weighed the stones which is 8.5 kg and 7.5 kg. and
has opined that there had been forceful sexual intercourse.
13. From the aforesaid medical evidence, it is clear as crystal that
there was forcible sexual intercourse with the girl and the death was
homicidal in nature.
14. Having analysed the said aspect, it is to be seen whether the
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prosecution has really established the complicity of the appellant in
the crime in question. We have enumerated the reasons ascribed by
the learned trial Judge and the concurrence given by the High Court,
but to satisfy our conscience, we have thought it seemly to peruse the
evidence with all insight and concern by ourselves.
15. As is manifest, the father of the victim, Krishna, PW-4, had
lodged the FIR immediately i.e. at 9:10 p.m. The FIR clearly stated
that the accused had taken away the victim. The role of the accused
and the suspicion was thus immediately reported. PW-1, mother of
the deceased, has deposed that her daughter, the deceased girl, was
playing in the courtyard along with other children while she was
doing the household work and when she came back to courtyard, she
found that the child was missing and she saw the appellant going on
the bicycle. Be it clarified, she had not actually seen the accused
taking away the victim but, as the evidence brought on record do
reveal, five prosecution witnesses are the eye witnesses to the factum
of accused taking away the minor girl. On a studied scrutiny of the
evidence it becomes graphically clear that when the mother had gone
in search of her, Vandana Ramkar, PW-5, had told her that the child
had gone on bicycle with the appellant. PW-5, in her testimony, has
unambiguously stated about the said fact. It has come in the
15
testimony of PW-1 that her daughter was wearing a blue midi and
black top on her person, and she has identified the said clothes which
have been brought on record as Articles 6, 9 and 10. From the
cross-examination it is manifest that they knew the appellant earlier,
and it is also demonstrable from the evidence of Vandana Ramkar,
PW-5, that the appellant had taken the girl on the bicycle. It has
come in the evidence of Baby Sharma, PW-6, that about 7.30 pm on
3.4.2008 the appellant while going on the bicycle fell down near
grocery shop and, thereafter, the cyclist and the girl came to purchase
“Minto Fresh”. As deposed by her the girl was wearing a black top
and blue skirt on her person. The said witness has identified the
appellant and also identified the photograph of the girl, Article 12.
She has also identified the clothes of the girl. PW-12, Kavita, has
deposed that her husband, Subhash, PW-11 and Krushna, PW-4,
father of the girl, were working at the same place and on the fateful
day the appellant had come to her house and told her husband
Subhash, PW-11, who was busy in repairing a tape-recorder that he
could repair the same and after checking it, he found some parts were
damaged and needed to be replaced and for the said purpose he took
Rs.20 from PW-11 and after 15 minutes came with the part and tried
to repair it but could not succeed. He left the house of PW-11 at 4.00
16
pm. It is in her testimony that about 6.00 pm the appellant came to
her house again and as she was feeling giddy and had reclined on the
cot, he sprinkled some water on her face. It is deposed by her that
her daughter, Akansha, and the deceased were playing in the
courtyard and at that time the appellant who was standing in the
courtyard had told Akansha and the minor girl that he would buy
them chocolates and, therefore, they should accompany him. As the
daughter of PW-12 was not wearing proper clothes she came back to
her and the appellant took the deceased with him. According to her
testimony the girl sat on the rod of the bicycle. It is testified by her
that as the appellant did not bring back the child, they went in search
of her. She has clearly deposed about the acquaintance of the
appellant with her family. It is apt to state here that nothing has been
elicited in the cross-examination to raise any doubt about the veracity
of her version.
16. Manisha, PW-2, has deposed that her father-in-law runs a tea
stall and she had the occasion to know the appellant. She has
supported the version of the prosecution by stating that the appellant
had come to her house about 7.30 p.m. and a girl aged about four
years was with him. She has stated that the girl was dressed in black
top and blue apparel and on a query being made, the appellant had
17
introduced the child as the daughter of his friend and he was going
to ‘Tekdi-Wadi’ along with the girl. In the cross-examination it has
only been elicited that she was not aware of the character of the
appellant. In this context, the evidence of Ku. Minal @ Twinkle,
PW-3, aged about 11 years is extremely significant. She has clearly
deposed that PW-1 is a resident of the locality and she knew the
deceased girl as she used to come to their house for playing with her
younger sister. She has emphatically stated that the deceased was
going on a bicycle sitting on the front rod with one person and on
being asked she said she was going to eat chocolates. She has
identified the accused. From the aforesaid evidence, it is quite vivid
that the appellant was last seen with the deceased and there is no
justification to discredit the testimony of the witnesses. Nothing has
been brought on record that they had any axe to grind against the
appellant. The fact that the appellant was taking the minor child on
his bicycle, and stopped at shop of Baby Sharma, PW-6, to purchase
chocolate and was also seen at other places as testified by other
witnesses has been proven to the hilt. There are really no
contradictions and discrepancies that would compel the court to
discard their evidence.
17. Be it noted, in appeal the High Court has observed that even if
18
the testimony of Minal, PW-3, is left out from consideration there is
ample evidence to show that accused had taken the deceased under
the guise of offering her chocolates. In our considered view, there is
no justification not to rely upon the testimony of the said witness.
She has identified the appellant in court and has stood firm in her
version. Her identification of the accused-appellant in the open court
is piece of substantive evidence as has been held in Dana Yadav V.
1
State of Bihar and such identification by her has not been shaken
or contradicted. Be it noted, the High Court has not rejected the said
evidence, but has only opined that even if the testimony is not
accepted, then also the identification has been proved. We think the
testimony of PW-3 further strengthens the case of the prosecution.
Considering the evidence brought on record in totality, the irresistible
conclusion is that the deceased was last seen with the appellant. In
this context, a fruitful reference may be made to the observations
2
made in Dharam Deo Yadav V. State of Uttar Pradesh , wherein it
has been held thus:
“... if the prosecution, on the basis of reliable evidence,
establishes that the missing person was seen in the
company of the accused and was never seen thereafter, it
is obligatory on the part of the accused to explain he
circumstances in which the missing person and the
accused parted company.”
1 (2002) 7 SCC 295
2 (2014) 5 SCC 509
19
In the instant case, the appellant has not offered any
explanation.
18. The next circumstance which has been taken note of by the
learned trial Judge as well as by the High Court pertains to leading to
discovery by the appellant. As is evincible, the panch witness, Anand
Borkar, PW-8, has proved Exhibit 29, the statement of the accused
relating to discovery of the spot wherefrom the dead body was found.
He has also supported the seizure panchnama, Exhibit 31, wherefrom
the blood stained earth, two stones, nikar, Minto Fresh chocolate and
one empty rapper were seized. According to the said witness the said
articles were seized vide Exhibit 31. PW-10, Santosh Keche, has
proved the seizure of the bicycle from the godown at the instance of
the appellant. The spot which was shown by the appellant and the
godown from which bicycle was seized, as has come in the evidence,
is in the vicinity where the dead body was found. Vide Exhibit 34,
the clothes, handkerchief and foot wear of the accused were seized.
The stones smeared with blood had been seized at the instance of the
accused.
19. Learned counsel for the appellant has submitted that the seizure
witnesses cannot be believed as the proper procedure has not been
followed. As we find from the evidence on record the appellant was in
20
custody and he had led to recovery. The search and seizure has also
been supported in minute detail by the Investigating Officer. It is also
evident that the search witnesses are independent witnesses and
their evidence inspire confidence. While accepting or rejecting the
factors of discovery, certain principles are to be kept in mind. The
3
Privy Council in Pulukuri Kotayya V. King Emperor has held thus:
“It is fallacious to treat the ‘fact discovered’ within the
section as equivalent to the object produced; the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this
fact. Information as to past user, or the past history, of
the object produced is not related to its discovery in
the setting in which it is discovered. Information
supplied by a person in custody that ‘I will produce a
knife concealed in the roof of my house’ does not lead
to the discovery of a knife; knives were discovered
many years ago. It leads to the discovery of the fact
that a knife is concealed in the house of the informant
to his knowledge, and if the knife is proved to have
been used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the
words be added ‘with which I stabbed A ’, these words
are inadmissible since they do not relate to the
discovery of the knife in the house of the informant.”
4
20. In Mohmed Inayatullah V. The State of Maharashtra ,
while dealing with the ambit and scope of Section 27 of the Evidence
Act, the Court held that:-
“Although the interpretation and scope of Section 27
3 AIR 1947 PC 67
4 (1976) 1 SCC 828
21
has been
the subject of several authoritative
pronouncements, its application to concrete cases is
not always free from difficulty. It will therefore be
worthwhile at the outset, to have a short and swift
glance at the section and be reminded of its
requirements. The section says:
“Provided that, when any fact is deposed to as
discovered in consequence of information received from
a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
the fact thereby discovered may be proved.”
The expression “provided that” together with the phrase
“whether it amounts to a confession or not” show that
the section is in the nature of an exception to the
preceding provisions particularly Sections 25 and 26. It
is not necessary in this case to consider if this section
qualifies, to any extent, Section 24, also. It will be seen
that the first condition necessary for bringing this
section into operation is the discovery of a fact , albeit a
relevant fact, in consequence of the information
received from a person accused of an offence. The
second is that the discovery of such fact must be
deposed to. The third is that at the time of the receipt of
the information the accused must be in police custody.
The last but the most important condition is that only
“so much of the information” as relates distinctly to the
fact thereby discovered is admissible. The rest of the
information has to be excluded. The word “distinctly”
means “directly”, “indubitably”, “strictly”,
“unmistakably”. The word has been advisedly used to
limit and define the scope of the provable information.
The phrase “distinctly relates to the fact thereby
discovered” is the linchpin of the provision. This phrase
refers to that part of the information supplied by the
accused which is the direct and immediate cause of the
discovery. The reason behind this partial lifting of the
ban against confessions and statements made to the
police, is that if a fact is actually discovered in
consequence of information given by the accused, it
22
affords some guarantee of truth of that part, and that
part only, of the information which was the clear,
immediate and proximate cause of the discovery. No
such guarantee or assurance attaches to the rest of the
statement which may be indirectly or remotely related
to the fact discovered.
At one time it was held that the expression “fact
discovered” in the section is restricted to a physical or
material fact which can be perceived by the senses, and
that it does not include a mental fact (see Sukhan v.
5 6
Crown ; Rex v. Ganee ). Now it is fairly settled that the
expression “fact discovered” includes not only the
physical object produced, but also the place from which
it is produced and the knowledge of the accused as to
this (see Palukuri Kotayya v. Emperor ; Udai Bhan v.
7
State of Uttar Pradesh ).”
8
21. In Aftab Ahmad Anasari V. State of Uttaranchal after
referring to the decision in Palukuri Kotayya (supra), the Court
adverted to seizure of clothes of the deceased which were concealed
by the accused. In that context, the Court opined that:-
“The part of the disclosure statement, namely, that
the appellant was ready to show the place where he
had concealed the clothes of the deceased is clearly
admissible under Section 27 of the Evidence Act
because the same relates distinctly to the discovery
of the clothes of the deceased from that very place.
The contention that even if it is assumed for the
sake of argument that the clothes of the deceased
were recovered from the house of the sister of the
appellant pursuant to the voluntary disclosure
statement made by the appellant, the prosecution
has failed to prove that the clothes so recovered
5 AIR 1929 Lah. 344
6 AIR 1932 Bom 286
7 1962 Supp 2 SCR 830
8 (2010) 2 SCC 583
23
belonged to the deceased and therefore, the recovery
of the clothes should not be treated as an
incriminating circumstance, is devoid of merits”.
9
22. In State of Maharashtra v. Damu it has been held as
follows:
“ … It is now well settled that recovery of an object is
not discovery of a fact as envisaged in [Section 27 of
the Evidence Act, 1872]. The decision of the Privy
Council in Pulukuri Kotayya v. King Emperor is the
most quoted authority for supporting the
interpretation that the ‘fact discovered’ envisaged in
the section embraces the place from which the object
was produced, the knowledge of the accused as to it,
but the information given must relate distinctly to
that effect.”
23. The similar principle has been laid down in State of
10 11
Maharashtra v. Suresh , State of Punjab v. Gurnam Kaur ,
Aftab Ahmad Anasari v. State of Uttaranchal , Bhagwan Dass v.
12 13
State (NCT of Delhi) , Manu Sharma v. State (NCT of Delhi) and
14
Rumi Bora Dutta v. State of Assam .
24. In the case at hand, as is perceptible, the recovery had
taken place when the appellant was accused of an offence, he was in
custody of a police officer, the recovery had taken place in
consequence of information furnished by him and the panch
9 (2000) 6 SCC 269
10 (2000) 1 SCC 471
11 (2009) 11 SCC 225
12 (2011) 6 SCC 396
13 (2010) 6 SCC 1
14 (2013) 7 SCC 417
24
witnesses have supported the seizure and nothing has been brought
on record to discredit their testimony.
25. Additionally, another aspect can also be taken note of. The
fact that the appellant had led the police officer to find out the spot
where the crime was committed, and the tap where he washed the
clothes eloquently speak of his conduct as the same is admissible in
evidence to establish his conduct. In this context we may refer with
15
profit to the authority in Prakash Chand v State (Delhi Admn.)
wherein the Court after referring to the decision in H.P. Admn. V. Om
16
Prakash held thus:
“… There is a clear distinction between the conduct of a
person against whom an offence is alleged, which is
admissible under Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or relevant
fact and the statement made to a Police Officer in the
course of an investigation which is hit by Section 162 of
the Criminal Procedure Code. What is excluded by
Section 162, Criminal Procedure Code is the statement
made to a Police Officer in the course of investigation
and not
the evidence relating to the conduct of an
accused person (not amounting to a statement) when
confronted or questioned by a Police Officer during the
course of an investigation. For example, the evidence of
the circumstance, simpliciter, that an accused person
led a Police Officer and pointed out the place where
stolen articles or weapons which might have been used
in the commission of the offence were found hidden,
would be admissible as conduct, under Section 8 of the
Evidence Act, irrespective of whether any statement by
15 (1979) 3 SCC 90
16 (1972) 1 SCC 249
25
the accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27 of
the Evidence Act.”
17
26. In A.N. Vekatesh and another v. State of Karnataka it
has been ruled that:-
“By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct influences
or is influenced by any fact in issue or relevant fact. The
evidence of the circumstance, simpliciter, that the accused
pointed out to the police officer, the place where the dead
body of the kidnapped boy was found and on their pointing
out the body was exhumed, would be admissible as
conduct under Section 8 irrespective of the fact whether
the statement made by the accused contemporaneously
with or antecedent to such conduct falls within the
purview of Section 27 or not as held by this Court in
Prakash Chand v. State (Delhi Admn.) . Even if we hold that
the disclosure statement made by the accused-appellants
(Exts. P-15 and P-16) is not admissible under Section 27 of
the Evidence Act, still it is relevant under Section 8. The
evidence of the investigating officer and PWs 1, 2, 7 and
PW 4 the spot mahazar witness that the accused had
taken them to the spot and pointed out the place where
the dead body was buried, is an admissible piece of
evidence under Section 8 as the conduct of the accused.
Presence of A-1 and A-2 at a place where ransom demand
was to be fulfilled and their action of fleeing on spotting
the police party is a relevant circumstance and are
admissible under Section 8 of the Evidence Act.”
27. We have referred to the aforesaid authorities only to
highlight that in the present case the provision under Section 27 of
Evidence Act is clearly attracted and we see no illegality in the seizure
17 (2005) 7 SCC 714
26
and the Panch witness have remained embedded in their version.
Nothing has been suggested to disregard their evidence. Therefore,
we have no hesitation in holding that there is ample proof of seizure
of the articles. That apart, we have also additionally considered the
conduct of the appellant that speaks eloquently, for it is worthy of
being considered within the admissible parameters.
28. The next circumstance which has been accepted by the
learned trail Judge and the High Court is the identification of the
clothes and matching of blood stains of the appellant’s clothes. On
the clothes that has been seized, the stains of human blood of ‘A’
Group are detected. The chemical analysis report, Exhibit 77, has
indicated that stains of human blood of ‘A’ group which is detected on
seized clothes, and the blood group that has been found on the
clothes of the accused including his underwear and handkerchief is
the same. The matching of the blood group gains signification in
such a circumstance. The incriminating articles, namely, stones
smeared with blood, the clothes and the blood group matching is an
important circumstance showing complicity of the appellant in the
crime in question.
29. Another facet which has immense significance is the injury
report. It graphically depicts the injuries on the private parts of the
27
minor girl which has been caused by sexual intercourse. Stains of
human blood of ‘A’ group have also been noticed on the front portion
of the nikar of the accused as per Exhibit 77 which matches the blood
group found on the stones.
30. The other relevant circumstance that weighs against the
appellant is that the dead body of the deceased was recovered at the
instance of the appellant. It was within his special knowledge. The
tap where he had washed his clothes was quite nearby. In this
context, it is worthy to note that the accused had disclosed the facts
and on the basis of his disclosure statement he had led to the place
where the dead body of the victim was found. In Deepak
18
Chandrakant Patil V. State of Maharashtra , it was observed by
this Court:
“... The fact that he knew about the dead body of the
deceased lying in the garden behind the house of
A-1 is almost clinching in nature and leaves nothing
to doubt...”
31. Regard being had to the aforesaid circumstances, it is to be seen
whether on the basis of the said circumstances, it can be held
whether such circumstances lead towards the guilt of the accused
regard being had to the principle that they lead to a singular
conclusion that the appellant is guilty of the offence and it does not
18 (2006) 10 SCC 151
28
allow any other probability which is likely to allow the presumption of
innocence of the accused. In this context, we may refer with profit to
the decision rendered more than six decades back in Hanumant
19
Govind Nargundkar V. State of M.P. , wherein it has been held as
follows:
“ … It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as
to show that within all human probability the act
must have been done by the accused.”
20
32. In Sharad Birdhichand Sarda v. State of Maharashtra , the
five golden principles which have been stated to constitute the
“panchsheel” of the proof of the case based on circumstantial
evidence are that the circumstances from which the conclusion of
guilt is to be drawn must or should be and not merely “may be” fully
established; that the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to say, they
19 AIR 1952 SC 343
20 (1984) 4 SCC 116
29
should not be explainable on any other hypothesis except that the
accused is guilty; that the circumstances should be of a conclusive
nature and tendency; that they should exclude every possible
hypothesis except the one to be proved; and that there must be a
chain of evidence so complete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have been done
by the accused.
21
33. In C. Chenga Reddy v. State of A.P it has been held that in a
case based on circumstantial evidence, the circumstances from which
the conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature, moreover, all the
circumstances should be complete and there should be no gap left in
the chain of evidence. That apart, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.
34. We may also take note of the fact that the appellant in his
statement under Section 313 CrPC, except making a bald denial, has
not stated anything. In this context, we may refer with profit to a
decision in Suresh (supra) wherein it has been held that there can be
three possibilities when an accused points to the place where the
21 (1996) 10 SCC 193
30
incriminating material is concealed without stating that it was
concealed by himself. Elucidating on the three possibilities, the Court
observed thus:
“ … One is that he himself would have concealed it.
Second is that he would have seen somebody else
concealing it. And the third is
that he would have
been told by another person that it was concealed
there. But if the accused declines to tell the criminal
court that his knowledge about the concealment was
on account of one of the last two possibilities the
criminal court can presume that it was concealed by
the accused himself. This is because the accused is
the only person who can offer the explanation as to
how else he came to know of such concealment and if
he chooses to refrain from telling the court as to how
else he came to know of it, the presumption is a
well-justified course to be adopted by the criminal
court that the concealment was made by himself.”
35. On a critical analysis of the evidence on record, we are convinced
that the circumstances that have been clearly established are that the
appellant was seen in the courtyard where the minor girl and other
children were playing; that the appellant was seen taking the
deceased on his bicycle; that he had gone to the grocery shop owned
by PW-6 to buy Mint chocolate along with her; that the accused had
told PW-2 that the child was the daughter of his friend and he was
going to ‘Tekdi-Wadi’ along with the girl; that the appellant had led to
discovery of the dead body of the deceased, the place where he had
washed his clothes and at his instance the stones smeared with blood
31
were recovered; that the medical report clearly indicates about the
injuries sustained by the deceased on her body; that the injuries
sustained on the private parts have been stated by the doctor to have
been caused by forcible sexual intercourse; that the stones that were
seized were smeared with blood and the medical evidence
corroborates the fact that injuries could have been caused by
battering with stones; that the chemical analysis report shows that
the blood group on the stones matches with the blood group found on
the clothes of the appellant; that the appellant has not offered any
explanation with regard to the recovery made at his instance; and
that nothing has been stated in his examination under Section 313
CrPC that there was any justifiable reason to implicate him in the
crime in question. Thus, we find that each of the incriminating
circumstances has been clearly established and the chain of
circumstances are conclusive in nature to exclude any kind of
hypothesis, but the one proposed to be proved, and lead to a definite
conclusion that the crime was committed by the accused. Therefore,
we have no hesitation in affirming the judgment of conviction
rendered by the learned trial Judge and affirmed by the High Court.
36. Now we shall proceed to deal with the facet of sentence. In
22
Bachan Singh v. State of Punjab , the Court held thus:-
22 (1980) 2 SCC 684
32
“( a ) The normal rule is that the offence of murder shall
be punished with the sentence of life imprisonment.
The court can depart from that rule and impose the
sentence of death only if there are special reasons for
doing so. Such reasons must be recorded in writing
before imposing the death sentence.
( b ) While considering the question of sentence to be
imposed for the offence of murder under Section 302 of
the Penal Code, the court must have regard to every
relevant circumstance relating to the crime as well as
the criminal. If the court finds, but not otherwise, that
the offence is of an exceptionally depraved and heinous
character and constitutes, on account of its design and
the manner of its execution, a source of grave danger
to the society at large, the court may impose the death
sentence.”
37. In the said case, the Court referred to the decision in Furman v.
23
Georgia and noted the suggestion given by the learned counsel
about the aggravating and the mitigating circumstances. While
discussing about the aggravating circumstances, the Court noted the
aggravating circumstances suggested by the counsel which read as
follows:-
“ Aggravating circumstances : A court may, however, in
the following cases impose the penalty of death in its
discretion:
( a ) if the murder has been committed after previous
planning and involves extreme brutality; or
( b ) if the murder involves exceptional depravity; or
23 33 L Ed 2d 346 : 408 US 238 (1972)
33
( c ) if the murder is of a member of any of the armed
forces of the Union or of a member of any police force
or of any public servant and was committed—
( i ) while such member or public servant was on duty;
or
( ii ) in consequence of anything done or attempted to be
done by such member or public servant in the lawful
discharge of his duty as such member or public
servant whether at the time of murder he was such
member or public servant, as the case may be, or had
ceased to be such member or public servant; or
( d ) if the murder is of a person who had acted in the
lawful discharge of his duty under Section 43 of the
Code of Criminal Procedure, 1973, or who had
rendered assistance to a Magistrate or a police officer
demanding his aid or requiring his assistance under
Section 37 and Section 129 of the said Code.”
After reproducing the same, the Court opined:-
“Stated broadly, there can be no objection to the
acceptance of these indicators but as we have indicated
already, we would prefer not to fetter judicial discretion
by attempting to make an exhaustive enumeration one
way or the other.”
38. Thereafter, the Court referred to the suggestions pertaining to
mitigating circumstances:-
“ Mitigating circumstances .—In the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
34
(2) The age of the accused. If the accused is young or old,
he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.”
After reproducing the above, the Court observed:-
“We will do no more than to say that these are
undoubtedly relevant circumstances and must be
given great weight in the determination of sentence.”
39. In the said case, the Court has also held thus:-
“It is, therefore, imperative to voice the concern that
courts, aided by the broad illustrative guide-lines
indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in Section
354(3) viz. that for persons convicted of murder, life
imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of
human life postulates resistance to taking a life through
35
law’s instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative option is
unquestionably foreclosed.”
24
40. In Machhi Singh and Others v. State of Punjab a
three-Judge Bench has explained the concept of rarest of the rare
cases by stating that:-
“The reasons why the community as a whole does not
endorse the humanistic approach reflected in ‘death
sentence-in-no-case’ doctrine are not far to seek. In the
first place, the very humanistic edifice is constructed on
the foundation of ‘reverence for life’ principle. When a
member of the community violates this very principle
by killing another
member, the society may not feel
itself bound by the shackles of this doctrine. Secondly,
it has to be realised that every member of the
community is able to live with safety without his or her
own life being endangered because of the protective arm
of the community and on account of the rule of law
enforced by it. The very existence of the rule of law and
the fear of being brought to book operates as a
deterrent for those who have no scruples in killing
others if it suits their ends. Every member of the
community owes a debt to the community for this
protection.”
41. Thereafter, after adverting to the aspects of the feeling of the
community and its desire for self-preservation, the Court opined that
the community may well withdraw the protection by sanctioning the
death penalty. The Court in that regard ruled thus:-
“But the community will not do so in every case. It
may do so ‘in the rarest of rare cases’ when its
24 (1983) 3 SCC 470
36
collective conscience is so shocked that it will expect
the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death
penalty.”
42. It is apt to state here that in the said case, emphasis was laid on
certain aspects, namely, manner of commission of murder, motive for
commission of murder, anti-social or socially abhorrent nature of the
crime, magnitude of crime and personality of the victim of murder.
43. After so enumerating the propositions that emerged out from
Bachan Singh (supra) were culled out which are as follows:-
“The following propositions emerge from Bachan
Singh case :
“( i ) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
( ii ) Before opting for the death penalty the
circumstances of the ‘offender’ also require to be
taken into consideration along with the
circumstances of the ‘crime’.
( iii ) Life imprisonment is the rule and death sentence
is an exception. In other words death sentence must
be imposed only when life imprisonment appears to
be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
and provided, and only provided, the option to
impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant
circumstances.
37
( iv ) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck
between the aggravating and the mitigating
circumstances before the option is exercised.”
44. Thereafter, the three-Judge Bench opined that to apply said
guidelines, the following questions are required to be answered:-
“( a ) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
( b ) Are the circumstances of the crime such that
there is no alternative but to impose death sentence
even after according maximum weightage to the
mitigating circumstances which speak in favour of
the offender?”
In the said case, the Court upheld the extreme penalty of
death in respect of three accused persons.
25
45. In Haresh Mohandas Rajput v. State of Maharashtra while
dealing with the situation where the death sentence is warranted the
two-Judge Bench referred to the guidelines laid down in Bachan
Singh (supra) and the principles culled out in Machhi Singh (supra)
and opined as follows:-
“In Machhi Singh v. State of Punjab this Court expanded
the “rarest of rare” formulation beyond the aggravating
factors listed in Bachan Singh to cases where the
25 (2011) 12 SCC 56
38
“collective conscience” of the community is so shocked
that it will expect the holders of the judicial power centre
to inflict the death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining
the death penalty, such a penalty can be inflicted. But
the Bench in this case underlined that full weightage
must be accorded to the mitigating circumstances in a
case and a just balance had to be struck between the
aggravating and the mitigating circumstances.”
After so stating, the Court ruled thus:-
“The rarest of the rare case” comes when a convict would
be a menace and threat to the harmonious and peaceful
coexistence of the society. The crime may be heinous or
brutal but may not be in the category of “the rarest of the
rare case”. There must be no reason to believe that the
accused cannot be reformed or rehabilitated and that he
is likely to continue criminal acts of violence as would
constitute a continuing threat to the society. The accused
may be a menace to the society and would continue to be
so, threatening its peaceful and harmonious coexistence.
The manner in which the crime is committed must be
such that it may result in intense and extreme
indignation of the community and shock the collective
conscience of the society. Where an accused does not act
on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and
meticulously
executes it, the death sentence may be the most
appropriate punishment for such a ghastly crime. The
death sentence may be warranted where the victims are
innocent children and helpless women. Thus, in case the
crime is committed in a most cruel and inhuman manner
which is an extremely brutal, grotesque, diabolical,
revolting and dastardly manner, where his act affects the
entire moral fibre of the society e.g. crime committed for
power or political ambition or indulging in organised
criminal activities, death sentence should be awarded.
26
(See C. Muniappan v. State of T.N . , Dara Singh v.
26 (2010) 9 SCC 567
39
27 28
Republic of India , Surendra Koli v. State of U.P. , Mohd.
29 30
Mannan and Sudam v. State of Maharashtra .)
Thus, it is evident that for awarding the death sentence,
there must be existence of aggravating circumstances
and the consequential absence of mitigating
circumstances. As to whether the death sentence should
be awarded, would depend upon the factual scenario of
the case in hand.”
31
46. In Dhanjoy Chatterjee alias Dhana v. State of W.B. , this
Court was dealing with the murder of a young girl of about 18 years.
The Court took note of the fact that the accused was a married man
of 27 years of age, the principles stated in Bachan Singh’s case and
further took note of the fact that rise of violent crimes against women
in recent years, and thereafter on consideration of aggravating factors
and mitigating circumstances and opined that:-
“In our opinion, the measure of punishment in a
given case must depend upon the atrocity of the
crime; the conduct of the criminal and the
defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner
in which the courts respond to the society’s cry for
justice against the criminals. Justice demands that
courts should impose punishment befitting the crime
so that the courts reflect public abhorrence of the
crime. The courts must not only keep in view the
rights of the criminal but also the rights of the victim
of crime and the society at large while considering
imposition of appropriate punishment.”
27 (2011) 2 SCC 490
28 (2011) 4 SCC 80
29 (2011) 5 SCC 317
30 (2011) 7 SCC 125s
31 (1994) 2 SCC 220
40
47. After so stating, the Court took note of the fact that the deceased
was a school going girl and it was the sacred duty of the appellant,
being a security guard, to ensure the safety of the inhabitants of the
flats in the apartment but to gratify his lust he had raped and
murdered the girl in retaliation which made the crime more heinous.
Appreciating the manner in which the barbaric crime was committed
on a helpless and defenceless school-going girl of 18 years the Court
came to hold that the case fell in the category of rarest of the rare
cases and accordingly affirmed the capital punishment imposed by
the High Court.
32
48. In Laxman Naik v. State of Orissa the Court has commenced
the judgment with the following passage:-
“The present case before us reveals a sordid story
which took place sometime in the afternoon of
February 17, 1990, in which the alleged sexual
assault followed by brutal and merciless murder by
the dastardly and monstrous act of abhorrent nature
is said to have been committed by the appellant
herein who is none else but an agnate and paternal
uncle of the deceased victim Nitma, a girl of the
tender age of 7 years who fell a prey to his lust which
sends shocking waves not only to the judicial
conscience but to everyone having slightest sense of
human values and particularly to the blood relations
and the society at large”.
49. Be it stated, in the said case the High Court had dismissed the
32 (1994) 3 SCC 381
41
appellant’s appeal and confirmed the death sentence awarded to him.
While discussing as regards the justifiability of sentence the Court
referred to the decision in Bachan Singh’s case and opined that
there were absolutely no mitigating circumstances and, on the
contrary, the facts of the case disclosed only aggravating
circumstances against the appellant. Elaborating further the Court
held thus:-
“ The hard facts of the present case are that the
appellant Laxman is the uncle of the deceased and
almost occupied the status and position that of a
guardian. Consequently the victim who was aged
about 7 years must have reposed complete
confidence in the appellant and while reposing such
faith and confidence in the appellant must have
believed in his bona fides and it was on account of
such a faith and belief that she acted upon the
command of the appellant in accompanying him
under the impression that she was being taken to her
village unmindful of the preplanned unholy designs
of the appellant. The victim was a totally helpless
child there being no one to protect her in the desert
where she was taken by the appellant misusing her
confidence to fulfil his lust. It appears that the
appellant had preplanned to commit the crime by
resorting to diabolical methods and it was with that
object that he took the girl to a lonely place to
execute his dastardly act.”
After so stating the Court while affirming the death
sentence opined that:-
“ …….The victim of the age of Nitma could not have
even ever resisted the act with which she was
42
subjected to. The appellant seems to have acted in a
beastly manner as after satisfying his lust he thought
that the victim might expose him for the commission
of the offence of forcible rape on her to the family
members and others, the appellant with a view to
screen
the evidence of his crime also put an end to
the life of innocent girl who had seen only seven
summers. The evidence on record is indicative of the
fact as to how diabolically the appellant had
conceived of his plan and brutally executed it and
such a calculated, cold-blooded and brutal murder of
a girl of a very tender age after committing rape on
her would undoubtedly fall in the category of rarest
of the rare cases attracting no punishment other
than the capital punishment and consequently we
confirm the sentence of death imposed upon the
appellant for the offence under Section 302 of the
Penal Code.”
33
50. In Kamta Tiwari and State of M.P. the appellant was
convicted for the offences punishable under Sections 363, 376,302
and 201 of IPC and sentenced to death by learned trial Judge and the
same was affirmed by the High Court. In appeal the two-Judge Bench
referred to the propositions culled out in Machhi Singh and
expressed thus:-
“Taking an overall view of all the facts and circumstances
of the instant case in the light of the above propositions
we are of the firm opinion that the sentence of death
should be maintained. In vain we have searched for
mitigating circumstances — but found aggravating
circumstances aplenty. The evidence on record clearly
establishes that the appellant was close to the family of
Parmeshwar and the deceased and her siblings used to
call him ‘Tiwari Uncle’. Obviously her closeness with the
33 (1996) 6 SCC 250
43
appellant encouraged her to go to his shop, which was
near the saloon where she had gone for a haircut with
her father and brother, and ask for some biscuits. The
appellant readily responded to the request by taking her
to the nearby grocery shop of Budhsen and handing over
a packet of biscuits apparently as a prelude to his
sinister design which unfolded in her kidnapping, brutal
rape and gruesome murder — as the numerous injuries
on her person testify; and the finale was the dumping of
her dead body in a well. When an innocent hapless girl of
7 years was subjected to such barbaric treatment by a
person who was in a position of her trust his culpability
assumes the proportion of extreme depravity and arouses
a sense of revulsion in the mind of the common man. In
fine, the motivation of the perpetrator, the vulnerability
of the victim, the enormity of the crime, the execution
thereof persuade us to hold that this is a “rarest of rare”
cases where the sentence of death is eminently desirable
not only to deter others from committing such atrocious
crimes but also to give emphatic expression to society’s
abhorrence of such crimes.”
34
51. In Bantu v. State of Uttar Pradesh a five year minor girl was
raped and murdered and the appellant was awarded death sentence
by the trial Court which was affirmed by the High Court. This Court
found the appellant guilty of the crime and thereafter referred to the
principles stated in Bachan Singh, Machhi Singh (supra) and
35
Devender Pal Singh v. State of A.P. and eventually came to hold
that the said case fell in the rarest of the rare category and the capital
punishment was warranted. Being of this view, the Court declined to
interfere with the sentence.
34 (2008) 11 SCC 113
35 (2002) 5 SCC 234
44
36
52. In Rajendra Pralhadrao Wasnik v. State of Maharashtra ,
the appellant was awarded sentence of death by the learned trial
Judge which was confirmed by the High Court, for he was found
guilty of the offences punishable under Sections 376(2)(f), 377 and
302 IPC. In the said case, the prosecution had proven that the
appellant had lured a three year old minor girl child on the pretext of
buying her biscuits and then raped her and eventually being
apprehensive of being identified, killed her. In that context, while
dismissing the appeal, the Court ruled thus:
“When the Court draws a balance sheet of the
aggravating and mitigating circumstances, for the
purposes of determining whether the extreme
sentence of death should be imposed upon the
accused or not, the scale of justice only tilts against
the accused as there is nothing but aggravating
circumstances evident from the record of the Court.
In fact, one has to really struggle to find out if there
were any mitigating circumstances favouring the
accused.
Another aspect of the matter is that the minor child
was helpless in the cruel hands of the accused. The
accused was holding the child in a relationship of
“trust-belief” and “confidence”, in which capacity he
took the child from the house of PW 2. In other
words, the accused, by his conduct, has belied the
human relationship of trust and worthiness. The
accused left the deceased in a badly injured condition
in the open fields without even clothes. This reflects
the most unfortunate and abusive facet of human
conduct, for which the accused has to blame no one
else than his own self.”
36 (2012) 4 SCC 37
45
53. At this juncture, we may refer to some authorities where in
cases of rape and murder, the death penalty was not awarded. In
37
State of T.N. V. Suresh and Another , the Court unsettled the
judgment of acquittal recorded by the High Court and found that
the accused was guilty of rape of a pregnant woman and also
murder. While awarding the sentence of life imprisonment, the
Court expressed the view:-
“The above discussion takes us to the final
conclusion that the High Court has seriously erred in
upsetting the conviction entered by the Sessions
Court as against A-2 and A-3. The erroneous
approach has resulted in miscarriage of justice by
allowing the two perpetrators of a dastardly crime
committed against a helpless young pregnant
housewife who was sleeping in her own apartment
with her little baby sleeping by her side and during
the absence of her husband. We strongly feel that the
error committed by the High Court must be undone
by restoring the conviction passed against A-2 and
A-3, though we are not inclined, at this distance of
time, to restore the sentence of death passed by the
trial court on those two accused”.
From the aforesaid authority, it is seen that the Court did not
think it appropriate to restore the death sentence passed by the
trial court regard being had to the passage of time.
38
54. In Akhtar V. State of U.P. , the appellant was found guilty
of murder of a young girl after committing rape on her and was
37 (1998) 2 SCC 372
38 (1999) 6 SCC 60
46
sentenced to death by the learned Sessions Judge and the said
sentence was confirmed by the High Court. The two-Judge Bench
referred to the decisions in Laxman Naik (supra), Kamta Tiwari
(supra) and addressed itself whether the case in hand was one of
the rarest of the rare case for which punishment of death could be
awarded. The Court distinguished the two decisions which have
been referred to hereinabove and ruled:-
“In the case in hand on examining the evidence of the
three witnesses it appears to us that the
accused-appellant has committed the murder of the
deceased girl not intentionally and with any
premeditation. On the other hand the
accused-appellant found a young girl alone in a
lonely place, picked her up for committing rape; while
committing rape and in the process by way of gagging
the girl has died. The medical
evidence also indicates
that the death is on account of asphyxia. In the
circumstances we are of the considered opinion that
the case in hand cannot be held to be one of the
rarest of rare cases justifying the punishment of
death”.
39
55. In State of Maharashtra V. Barat Fakira Dhiwar , a
three-year old girl was raped and murdered by the accused. The
learned trial Judge convicted the accused and awarded the death
sentence. The High Court had set aside the order of conviction
and acquitted him for the offences. This Court, on scrutiny of the
evidence found the accused was guilty of rape and murder.
39 (2002) 1 SCC 622
47
Thereafter, the Court proceeded to deal with the sentence and in
that context observed:-
“Regarding sentence we would have concurred with
the Sessions Court’s view that the extreme penalty of
death can be chosen for such a crime. However, as
the accused was once acquitted by the High Court we
refrain from imposing that extreme penalty in spite of
the fact that this case is perilously near the region of
“rarest of the rare cases”, as envisaged by the
Constitution Bench in Bachan Singh v. State of
Punjab . However, the lesser option is not
unquestionably foreclosed and so we alter the
sentence, in regard to the offence under Section 302
IPC, to imprisonment for life”.
56. Keeping in view the aforesaid authorities, we shall proceed to
adumbrate what is the duty of the Court when the collective
conscience is shocked because of the crime committed. When the
crime is diabolical in nature and invites abhorrence of the
collective, it shocks the judicial conscience and impels it to react
keeping in view the collective conscience, cry of the community for
justice and the intense indignation the manner in which the brutal
crime is committed. We are absolutely conscious that Judges
while imposing sentence, should never be swayed away with any
kind of individual philosophy and predilections. It should never
have the flavour of Judge-centric attitude or perception. It has to
satisfy the test laid down in various precedents relating to rarest of
the rare case. We are also required to pose two questions that has
48
been stated in Machhi Singh’s case.
57. Presently, we shall proceed to dwell upon the manner in
which the crime was committed. Materials on record clearly reveal
that the appellant was well acquainted with the inhabitants of the
locality and as is demonstrable he had access to the house of the
father of the deceased and the children used to call him “uncle”.
He had lured the deceased to go with him to have chocolates. It is
an act of taking advantage of absolute innocence. He had taken
the deceased from place to place by his bicycle and eventually
raped her in a brutal manner, as if he had the insatiable and
ravenous appetite. The injuries caused on the minor girl are likely
to send a chill in the spine of the society and shiver in the
marrows of human conscience. He had battered her to death by
assaulting her with two heavy stones. The injured minor girl could
not have shown any kind of resistance. It is not a case where the
accused had a momentary lapse. It is also not a case where the
minor child had died because of profuse bleeding due to rape but
because of the deliberate cruel assault by the appellant. After the
savage act was over, the coolness of the appellant is evident, for he
washed the clothes on the tap and took proper care to hide things.
As is manifest, he even did not think for a moment the trauma and
49
torture that was caused to the deceased. The gullibility and
vulnerability of the four year girl, who could not have nurtured any
idea about the maladroitly designed biological desires of this
nature, went with the uncle who extinguished her life spark. The
barbaric act of the appellant does not remotely show any concern
for the precious life of a young minor child who had really not seen
life. The criminality of the conduct of the appellant is not only
depraved and debased, but can have a menacing effect on the
society. It is calamitous. In this context, we may fruitfully refer to
40
a passage from Shyam Narain V. State (NCT of Delhi) , wherein
it has been observed as follows:
“The wanton lust, vicious appetite, depravity of
senses, mortgage of mind to the inferior endowments
of nature, the servility to the loathsome beast of
passion and absolutely unchained carnal desire have
driven the appellant to commit a crime which can
bring in a “tsunami” of shock in the mind of the
collective, send a chill down the spine of the society,
destroy the civilised stems of the milieu and
comatose the marrows of sensitive polity”.
In the said case, while describing the rape on an eight year
old girl, the Court observed:
“Almost for the last three decades, this Court has
been expressing its agony and distress pertaining to
the increased rate of crimes against women. The eight
year old girl, who was supposed to spend time in
40 (2013) 7 SCC 77
50
cheerfulness, was dealt with animal passion and her
dignity and purity of physical frame was shattered.
The plight of the child and the shock suffered by her
can be well visualised. The torment on the child has
the potentiality to corrode the poise and equanimity of
any civilised society. The age-old wise saying that
“child is a gift of the providence” enters into the realm
of absurdity. The young girl, with efflux of time, would
grow with a traumatic experience, an unforgettable
shame. She shall always be haunted by the memory
replete with heavy crush of disaster constantly
echoing the chill air of the past forcing her to a state
of nightmarish melancholia. She may not be able to
assert the honour of a woman for no fault of hers.”
58. In the case at hand, as we find, not only the rape was committed
in a brutal manner but murder was also committed in a barbaric
manner. The rape of a minor girl child is nothing but a monstrous
burial of her dignity in the darkness. It is a crime against the holy
body of a girl child and the soul of the society and such a crime is
aggravated by the manner in which it has been committed. The
nature of the crime and the manner in which it has been committed
speaks about its uncommonness. The crime speaks of depravity,
degradation and uncommonality. It is diabolical and barbaric. The
crime was committed in an inhuman manner. Indubitably, these go a
long way to establish the aggravating circumstances.
59. We are absolutely conscious that mitigating circumstances are
to be taken into consideration. Learned counsel for the appellant
pointing out the mitigating circumstances would submit that the
51
appellant is in his mid fifties and there is possibility of his
reformation. Be it noted, the appellant was aged about forty-seven
years at the time of commission of the crime. As is noticeable, there
has been no remorse on the part of the appellant. There are cases
when this Court has commuted the death sentence to life finding that
the accused has expressed remorse or the crime was not
pre-meditated. But the obtaining factual matrix when unfolded stage
by stage would show the premeditation, the proclivity and the
rapacious desire. Learned counsel would submit that the appellant
had no criminal antecedents but we find that he was a history-sheeter
and had number of cases are pending against him. That alone may
not be sufficient. The appalling cruelty shown by him to the minor
girl child is extremely shocking and it gets accentuated, when his age
is taken into consideration. It was not committed under any mental
stress or emotional disturbance and it is difficult to comprehend that
he would not commit such acts and would be reformed or
rehabilitated. As the circumstances would graphically depict, he
would remain a menace to the society, for a defenceless child has
become his prey. In our considered opinion, there are no mitigating
circumstances.
60. As we perceive, this case deserves to fall in the category of rarest
52
of the rare cases. It is inconceivable from the perspective of the
society that a married man aged about two scores and seven make a
four year minor innocent girl child the prey of his lust and
deliberately cause her death. A helpless and defenceless child gets
raped and murdered because of the acquaintance of the appellant
with the people of the society. This is not only betrayal of an
individual trust but destruction and devastation of social trust. It is
perversity in its enormity. It irrefragably invites the extreme
abhorrence and indignation of the collective. It is an anathema to the
social balance. In our view, it meets the test of rarest of the rare case
and we unhesitatingly so hold.
61. Consequently, we dismiss the criminal appeals preferred by the
appellant and affirm the death sentence.
........................................J.
[DIPAK MISRA]
.........................................J.
[ROHINTON FALI NARIMAN]
........................................J.
[UDAY UMESH LALIT]
NEW DELHI
NOVEMBER 26, 2014.
53
ITEM NO.1A COURT NO.5 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s).2486-2487/2014
(Arising out of SLP (Crl) No.330-331 of 2013)
VASANT SAMPAT DUPARE Appellant(s)
VERSUS
STATE OF MAHARASHTRA Respondent(s)
Date : 26/11/2014 These appeals were called on for judgment today.
For Appellant(s) Mr. Sanjiv Das, Adv.
Mr. S.S. Nehra, Adv.
Mr. Parmanand Gaur, Adv.
For Respondent(s) Mr. Shankar Chillarge, Adv.
Mr. Aniruddha P. Mayee,Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the judgment of the
Bench comprising of His Lordship, Hon'ble Mr. justice Rohinton
Fali Nariman and Hon'ble Mr. Justice Uday Umesh Lalit.
The appeals are dismissed in terms of the signed reportable
judgment.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)