Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.15581559 OF 2018
(Arising out of SLP (Criminal) Nos. 54165417/2015)
Viran Gyanlal Rajput ...Appellant
Versus
The State of Maharashtra ...Respondent
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted in SLP (Crl.) Nos. 541617/2015.
2. The instant appeals have been filed against the final common
judgment and order dated 16.02.2015 of the High Court of
Bombay in Confirmation Case No. 3 of 2014 with Criminal
Signature Not Verified
Appeal No. 760 of 2014 whereby the learned High Court
Digitally signed by
VISHAL ANAND
Date: 2018.12.05
16:50:36 IST
Reason:
confirmed the death sentence awarded to the appellant herein.
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By the impugned judgment, the High Court dismissed the
aforementioned confirmation case and criminal appeal arising
out of the judgment and order of conviction and sentence dated
25.06.2014 of the Additional Sessions Judge, Mangaon, Raigad,
in Sessions Case No. 8 of 2013. The Sessions Court had
convicted the appellant Viran Gyanlal Rajput for the offences
punishable under Sections 302 and 201 of the Indian Penal
Code, and under Sections 10 and 4 of the Protection of Children
from Sexual Offences Act, 2012 (“POCSO Act”) for the
kidnapping, rape and murder of a 13yearold girl, and causing
disappearance of evidence. The appellant was sentenced to death
for the offence under S. 302, IPC; R.I. for 10 years and a fine of
Rs. 200 (1 year’s R.I. in default) under S. 366, IPC; R.I. for 7
years and a fine of Rs. 200 (1 year’s R.I. in default) under S. 10,
POCSO Act; imprisonment for life and a fine of Rs. 500 (2 years’
R.I. in default) under S. 4, POCSO Act; and R.I. for 7 years and a
fine of Rs. 200 (1 year’s R.I. in default) under S. 201, IPC. Except
for overturning the appellant’s conviction under Section 10,
POCSO Act, lacking a specific charge for the same, the judgment
and order of conviction and sentence rendered by the Sessions
Court was maintained by the High Court.
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3. The case for the prosecution in brief is that on 17.10.2012,
when the victim did not return home from school at the usual
time in the evening, a search was undertaken. The next day,
some of her belongings were found in the jungle area adjoining
the village. A complaint (Exh. 14) regarding missing of the girl
was lodged around 8.30 a.m. by PW3, Samir Parab, the victim’s
cousin. In the meantime, PW4, Vijay Parab, the victim’s uncle,
who had seen the victim being followed the last evening on the
way back from school by an unknown person wearing a red T
shirt, and PW5 Abhijit Chavan (a resident of the neighbouring
Toranpada village), who had later seen the same person running
towards Toranpada village, went to the adjoining settlement of
Paradhis (a nomadic community) along with some other villagers,
suspecting him to be there. The person, none other than the
appellant herein, was apprehended by the villagers and was
being brought to Avandhe village (a neighbouring area). At that
time, they were accosted by the police who were proceeding to
undertake investigation with respect to the missing person’s
complaint. The police thereupon took custody of the appellant.
Around this time, the first information pertaining to the offence of
murder was given to the police by PW3. The dead body of the
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victim was recovered in a naked condition, at the instance of the
appellant, from a field near Kamthekarwadi village (the village
where the victim resided) and subsequently her clothes were
recovered at his instance as well.
As per the post mortem report (Exh. 35) and the evidence of
the doctor who conducted it (PW13), the probable cause of death
was opined as asphyxia with cardiorespiratory arrest due to
strangulation. It was also found that the deceased had been
forcibly subjected to sexual intercourse.
4. The Trial Court as well as the High Court found the
following incriminating circumstances against the appellant,
namely, the deceased was last seen with him while she was
walking home from school; the appellant was seen running alone
towards Toranpada later in the evening; the recovery of the dead
body and incriminating articles (importantly, the clothes of the
victim) at the instance of the appellant; mud stains on the pants
of the appellant which matched with the mud seized from the
spot of recovery of the victim’s body; failure of the appellant to
explain injuries found on him; medical evidence showing that the
victim had been forcibly raped and killed; motive to gratify lust,
and to kill the victim and hide her body to suppress evidence of
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his crime; and the failure of the appellant to offer a plausible
explanation for the incriminating circumstances against him.
Importantly, both the Courts relied on the testimony of PW Nos. 4
and 5 as last seen witnesses.
5. Heard the counsel on either side.
6. Shri V. Giri, learned Senior Counsel appearing for the
appellant, duly assisted by Shri Amartiya Kanjilal, Advocate,
submitted that the chain of circumstantial evidence had not been
established satisfactorily by the prosecution. He argued that the
recoveries made at the instance of the appellant were
inadmissible. According to him, the ‘last seen’ principle was
incorrectly applied, as none out of PWs 35 had actually seen the
deceased in the company of the appellant—rather, PW4 had only
seen him following the deceased at a distance, and PW5 had seen
him in the morning in the vicinity and shown him the way to
Pedali (a nearby village, where the victim went to school) and
later seen him running towards Toranpada, alone. Furthermore,
the identification of the appellant was based on the precarious
grounds of wearing a red Tshirt and having mud stains on his
pants, instead of through a Test Identification Parade. It was also
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submitted that the injuries in the form of scratch marks found on
the appellant could not be interpreted as having been inflicted by
the deceased in her defence: firstly , because as per the evidence
of the doctor who examined the appellant (PW12), the injuries
had taken place within 24 hours preceding the examination, well
after the alleged time of the incident (i.e. the evening/night of
17.10.2012), which fact also suggested that they probably took
place during the manhandling of the appellant by the villagers
upon apprehending him (as also evident from PW12’s admission
that the injuries were possible in a scuffle if the injured fell on a
rough object), and secondly , because as per the FSL Report being
Exh. 38, there was no blood detected on the fingernail clippings
of the deceased, which would not have been the case if she had
indeed inflicted the scratches. Learned counsel for the appellant
also submitted that the nonnaming of the appellant and non
mentioning of the Crime Number in the inquest report (Exh. 40)
and the nonexplanation of the discovery and ownership of a
second watch recovered from near the spot of the body was
suspicious. At the same time, as the vaginal swabs of the victim
did not indicate the presence of semen even after 3 samples were
taken (as per the FSL Report being Exh. 38, read with the
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evidence of the doctor PW13 ), nothing remained to tie the
appellant to the commission of the crime.
On the issue of sentencing, learned counsel argued that the
appellant was only 22 years old at the time of the offence, had
dependents in the form of his wife and two young children,
lacked criminal antecedents, and had shown good behaviour post
his incarceration, and therefore the death penalty was not
warranted.
7. , Shri Nishant Ramakantrao Katneshwarkar, learned
Per contra
counsel for the respondentState of Maharashtra, stressed that
the chain of circumstance had been established beyond
reasonable doubt. The body of the victim as well as her articles
had been recovered only at the behest of the accused, and he had
been seen following the girl by PW4 and later running towards
Toranpada by PW5. He submitted that the identification of the
appellant could not be assailed, since the village merely consisted
of 25 houses, and thus the witnesses had immediately identified
that the person was an outsider, and went to search among the
nomadic community as their settlement was located only
Paradhi
3 km outside the village, since they felt that it was probable that
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the unidentified person belonged thereto. Furthermore, the mud
stains on the pants of the appellant were highly incriminating,
because as per the FSL Report being Exh. 62, they matched in
composition and characteristics with the mud seized from the
spot of recovery of the deceased’s body. Lastly, he submitted that
the nonexplanation regarding the second watch could not be
considered fatal to the case of the prosecution at all.
On the issue of sentencing, learned counsel for the State
submitted that the Court keep in mind the plight and
helplessness of the victim and her parents.
8. We have perused the evidence on record carefully, as well as
the judgments of the Trial Court and the High Court.
To begin with, we find that the Trial Court and the High
Court were correct in relying upon the testimony of PWs 4 and 5,
which is natural and reliable. PW4 Vijay Parab was the victim’s
uncle, and PW5 Abhijit Chavan was a resident of the
neighbouring Toranpada village. PW4 testified that he saw the
victim being followed by a person in a red Tshirt, being the
appellant, while she was on the way home from school on the
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evening of the incident. He also stated that he had asked the
victim if she was going home alone, to which she had answered
in the affirmative. PW5 testified that a person in a red Tshirt,
being the accused before the trial Court, had asked him the way
to Pedali village on the morning of the incident, at Toranpada
village, and he had seen the same person running alone, with his
pants muddied, towards Toranpada in the evening around 66.30
p.m., at a spot which was later found to be around 300m from
the spot of recovery of the victim’s body.
The presence of these witnesses at the relevant points of
time is also natural. PW4 was proceeding on a tractor from
Kamthekarwadi to Pedali when he met the victim on her way
back from school proceeding in the opposite direction. PW5, on
the other hand, had been asked the way to Pedali by the
appellant on the morning of the incident, while he was at his
house in Toranpada, and had seen the same person again in the
evening, running towards Toranpada, while he was grazing his
cattle near Awandhe.
PWs 4 and 5 also testified to being part of the party of
villagers that undertook to search the Paradhi settlement for the
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person in the red Tshirt when it was discovered that the victim
had gone missing, and apprehended the appellant therefrom,
handing him over to the police, who they met on the way to
Avandhe village. We are of the opinion that the conduct of these
witnesses appears natural, as it would have been reasonable for
them to search the nearest settlement, when it was realised that
the victim was last seen being followed by an outsider. As rightly
contended by counsel for the prosecution, in a village of merely
25 houses, where everyone is wellacquainted with one another,
an outsider would stand out starkly, and attract attention. In
such a situation, his identification through clothes, if supported
by the testimony of multiple witnesses whose testimony has been
found to inspire confidence, cannot be found fault with only
because a Test Identification Parade was not conducted
subsequently.
The testimony of the witnesses as referred to above is
corroborated by PW3, Samir Parab, who is a cousin of the victim
and also the informant in this case. He testified that when the
search for the victim was undertaken, PW 4 told him about
seeing a person in a red Tshirt with the victim. The adjacent
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jungle area was searched, and around 3 am in the morning her
sandal was recovered around 200m to the east of Kamthekarwadi
village, and in the morning her schoolbag as well as a wristwatch
given to her by PW3 himself, were discovered, after which he
proceeded to lodge a missing person’s report. Subsequently, on
his way to Avandhe with the police, he met PWs 4 and 5 in a
group of villagers with the appellant, who was handed over to the
police.
Furthermore, the testimony of PWs 3, 4 and 5 is also
consistent on the point that after the appellant was handed over
to the custody of the police, he gave a statement to them and led
them to the spot where the body of the victim was hidden, i.e. a
field owned by one Raghunath Deshmukh, around 300m away
from Kamthekarwadi village. This field was overgrown with grass,
and the appellant revealed the body by keeping aside grass and
mud. The body was buried about 2 feet under the ground. The
body was in a naked condition with a red odhani ( dupatta ) tied
around the neck. This is also corroborated by the evidence of
PW8, one of the panchas, and PW14, the I.O., who also testified
that articles such as the earrings of the deceased, her schoolbag
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containing her ID card, books and notebooks, as well as two
wristwatches were also found on the spot.
In this situation, we also find that the minor discrepancies
in the recorded timings and sequence of events pertaining to the
recovery of the body, and articles including the victim’s
schoolbag, as evident through the First Information Statement
(Exh. 63), the testimony of the I.O., PW14, and the spot
panchanama (Ex. 23), are not fatal to the prosecution version
and may be explained due to all the events happening in quick
succession, viz. the apprehending of the appellant, the recovery
of the dead body, the lodging of the FIR pertaining to murder and
the preparation of the spot panchanama. Moreover, the argument
that the recovery of the dead body at the instance of the
appellant is highly suspicious cannot be sustained either, since it
is clear from the testimony of the witnesses that the body was
recovered from a spot which could only have been within the
knowledge of the person who hid the body to begin with. This is
also fortified by the lack of any explanation by the appellant
regarding the recovery of the body and the circumstance of the
victim being last seen around him. To add to this, even the
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clothes of the deceased were recovered at the instance of the
appellant, from a spot around 200m from Kamthekarwadi, from a
pit which had been covered with a stone. This again is a location
of which only the perpetrator of the offence could have had
knowledge. Although it is true that the recovery of articles is to be
made based on the statement of the accused immediately after
the arrest of the accused and recording his statement, the
recovery should be based on the voluntary action relating to
showing of the place by the accused. Therefore, unless the
accused volunteers to show the place of hiding certain
things/facts, the recovery cannot be made by the investigating
officers. In this view of the matter, if the accused volunteered to
show the place where he had hidden the deceased’s clothes at a
particular place only after 5 days, the investigating officer cannot
be blamed for the same. In a given case, the accused may
confess ten or fifteen days after his arrest and as such the
recovery cannot be suspected on this ground alone. Together,
these circumstances establish that the appellant had hidden the
body of the deceased, as well as her clothes, in a bid to suppress
the evidence of his crime.
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The matching of the mud recovered from the spot of
recovery of the victim’s body with the mud stains on the pants of
the appellant is also highly incriminating, as rightly held by the
Trial Court and the High Court.
As regards the scratch marks found on the face and neck of
the accused, we have considered the argument of the appellant
that it was possible for the injuries to have been inflicted during
the scuffle that would have ensued at the time that the party of
villagers apprehended the appellant, even though the medical
evidence given by PW13 also shows that they could have been
inflicted by a woman resisting sexual assault. It is the defence of
the appellant that 10 to 15 villagers who went to the Paradhi
settlement in search of the accused wearing a red Tshirt must
have caught hold of the accused and assaulted him mercilessly,
consequent to which the accused sustained scratch marks on his
body. Such explanation on behalf of the accused cannot be
accepted, inasmuch as a total of 8 injuries have been sustained
by the accused, out of which 7 are scratch marks and only 1 is a
contusion. If really the accused was assaulted mercilessly by 10
to 15 villagers, at least 10 to 15 contusions or abrasions etc.
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should have been found on the body of the accused. On the
other hand, the scratch marks suffered by the appellant are of
such a nature as would generally occur while a victim resists any
illegal action by such person such as rape etc. Such scratch
marks are generally inflicted by nails. Since the victim was
unarmed, she must have resisted the assault on her by the
accused, leading to scratches on the accused. Thus, the scratch
marks found on his face and neck clearly show the resistance of
the victim.
The medical evidence also clearly establishes the occurrence
of rape. As per the evidence of PW13 and the post mortem report
(Exh. 35), there was swelling in the victim’s labia majora along
with multiple tears in the hymen. Additionally, there were several
scratch marks all over her body. As regards the murder of the
victim, the evidence of PW13 indicates that she was killed by
strangulation by the red odhani which was found tied tightly
around the victim’s neck when her body was recovered.
The motive for the crime, i.e. lust, is also apparent, which is
an important consideration in cases based on circumstantial
evidence, as pointed out by the High Court. No doubt, the semen
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of the appellant has not been detected in the vaginal swabs of the
deceased (as per the FSL Report being Exh. 38), having been
found only on the knickers of the appellant himself (as per the
FSL Report being Exh. 61). However, this, too, cannot be a
ground to exonerate the appellant, given the totality of
circumstances of the case, and also considering that the swabs
were mixed with mud, as stated by the doctor PW13.
Additionally, in light of the incriminating circumstances
enumerated above, we find ourselves unable to agree with the
contention of the learned Senior counsel for the appellant that
the noninvestigation into the ownership of the second
wristwatch recovered vitiates the case against the accused.
Moreover, as noted by the High Court, the nonseizure of the
sandal of the victim and the stone used to hide the victim’s
clothes, also does not strike at the root of the matter.
9. Thus, we are of the opinion that each link in the chain of
circumstantial evidence has been adequately established by the
prosecution, and the conviction of the appellant is affirmed.
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10. We now turn our attention to the issue of quantum of
sentence, particularly the sentence of death awarded to the
appellant. Before proceeding further, it would be pertinent to
recall that life imprisonment is the rule and the death penalty is
the exception, and the death penalty is to be imposed only when
the alternative of life imprisonment is totally inadequate, and
therefore unquestionably foreclosed, i.e. if it is the only inevitable
conclusion, as per the wellsettled legal proposition first
enunciated in , (1980) 2 SCC
Bachan Singh v. State of Punjab
684. While determining the sentence, it is equally important for
the Court to consider the aggravating circumstances of the crime
and the mitigating circumstances of the criminal. Moreover, since
the decision in Machhi Singh v. State of Punjab , (1983) 3 SCC
470, a balancing approach of such aggravating and mitigating
circumstances has been adopted, to see if the crime is among the
rarest of rare cases.
The Trial Court and the High Court, on an evaluation of the
aggravating and mitigating circumstances of the case, have
arrived at the conclusion that the death sentence is warranted in
this case. Undoubtedly, the Courts were correct in giving weight
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to the dastardly nature and manner of the crime, i.e. kidnapping
a girl of the tender age of 13 years, taking her to a secluded area
and committing the act of rape and subsequently murdering her
by strangulation and burying her body in a field, having disrobed
her completely, and also in giving weight to the youth and
helplessness of the victim, and to the fact that the appellant
proceeded to target her to satisfy his lust.
Though we agree that the crime committed is of an
abominable nature, it cannot be said to be of such a brutal,
depraved, heinous or diabolical nature so as to fall into the
category of the rarest of rare cases and invite punishment with
death. We also find ourselves unable to agree with the view of the
Courts that the appellant is such a menace to society that he
cannot be allowed to stay alive.
On the other hand, we are of the view that the prosecution
did not establish that the appellant was beyond reform, especially
given his young age. We are also mindful of the appellant’s lack
of criminal antecedents prior to the commission of this crime,
and of his post incarceration conduct, which in no way suggests
the impossibility of his reform. It would be pertinent to observe at
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this point that although the Trial Court noted his lack of remorse
during the hearing, and the High Court noted his lack of remorse
after committing the crime, as he was found calmly wandering
around the locality, this does not in any way indicate that there
is no scope of reform for the appellant.
11. Thus, neither the circumstances of the crime nor the
circumstances of the criminal, i.e. the appellant, would go to
show that the instant matter falls into the category of the rarest
of rare cases, or that the sentence of life imprisonment is
unquestionably foreclosed and grossly disproportionate.
Therefore, in the totality of the facts and circumstances of this
case, we find it fit to commute the death sentence of the
appellant to life imprisonment.
At the same time, we are of the opinion that a sentence of
life imprisonment simpliciter would not be proportionate to the
gravity of the offence committed, and would not meet the need to
respond to crimes against women and children in the most
stringent manner possible. Moreover, though we have noticed
above that the possibility of reform of the accused is not
completely precluded, we nevertheless share the concerns of the
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Trial Court and the High Court regarding the lack of remorse on
behalf of the appellant and the possibility of reoffending. In such
a situation, we deem it fit to restrict the right of the appellant to
claim remission in his sentence of life imprisonment for a period
of 20 years.
12. At this juncture, we would like to acknowledge and
appreciate the diligence and painstaking attention to detail in
preparing for this matter on the part of Shri Amartiya Kanjilal,
learned counsel for the appellant, as also commended by Shri V.
Giri, learned Senior counsel appearing on behalf of the appellant.
13. Thus, the Criminal Appeals arising from Special Leave
Petition (Criminal) Nos. 541617 of 2015 are disposed of by
commuting the sentence of death awarded to the appellant to life
imprisonment, out of which the appellant shall mandatorily serve
out a minimum of 20 years without claiming remission.
..............................................J.
[N.V. RAMANA]
...............................................J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI; .................................................J.
DECEMBER 05, 2018. [HEMANT GUPTA]
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