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Court No. - 46

Case :- CAPITAL CASES No. - 170 of 2013

Appellant :- Ashok

Respondent :- State Of U.P.

Counsel for Appellant :- Apul Misra

Counsel for Respondent :- Govt. Advocate, P.K. Shukla

Connected with

Reference No. 02 of 2013

Hon'ble Amar Saran,J.

Hon'ble Bachchoo Lal,J.

(Delivered by Hon'ble Amar Saran J

This Capital Appeal has been filed against a judgement

and order dated 24.12.2012 passed by the Additional Sessions

Judge (SC and ST Act), Bareilly convicting and sentencing the

appellant to life imprisonment under section 376 IPC, seven

years R.I. under section 201 IPC and a fine of Rs. 25,000/-, life

imprisonment under section 3(2)5 of SC and ST Act and a fine

of Rs. 25,000/-. In case of default in payment of fine, the

appellant was to undergo further imprisonment of one year

under section 376 IPC, six months under section 201 IPC and

six months under section 3(2)5 of SC and ST Act. The

appellant was also awarded death sentence under section 302

IPC.

A Criminal Reference under section 366(1) of the Code of

Criminal Procedure has been sent by the learned Sessions

Judge for confirmation of the death sentence.

Neutral Citation No. - 2013:AHC:163402-DB

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In short, the prosecution case was that on 27.5.2009, at

9.00 AM, the deceased Km. Meera Devi, aged 10 years had

gone to the pasture for grazing her goats. Her cousin Vivesh,

aged 6 years had also gone along with her. As Km. Meera Devi

became thirsty, they had gone to the tube well of Munish Pal at

about 10.00 AM, which was operated by the appellant Ashok,

for drinking water. With an evil intent Ashok forcibly caught

hold of Meera and took her into the Kothri (room) adjoining the

tube well and committed rape on her and thereafter he

murdered her. There were injuries on her private parts. Ashok

thereafter hid the dead body in a haystack in that room. When

Vivesh returned home at about 11.00 a.m., without Meera,

then the informant Heera Lal, the father of the deceased

enquired from Vivesh about the whereabouts of Meera Devi.

Vivesh told him that Meera had gone to the tube well to drink

water and after that he did not know where she had gone.

After this, the informant proceeded to the tube well and

enquired from Ashok about Meera, who gave evasive replies.

Then he searched in the room at the tube well and found her

dead body under the haystack. Finding an opportunity, Ashok

gave the informant and witnesses a slip and ran away from the

spot. The informant thereafter proceeded to the police station

Bhuta, which was 21 Kms away, where he lodged the report

on 27.5.09 at 2 pm.

PW 6, Clerk-Constable Tejpal Singh prepared the check

FIR and registered a case at case crime No. 259 of 2009,

under sections 376, 302,201 IPC and 3(2) 5 of SC and ST Act

against the appellant and made the necessary GD entries at 2

p.m. on the same day (i.e. 27.5.09).

PW 7, SI Harikesh Tiwari, reached the spot and took out

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the body from the Kothri of the tube well and conducted the

inquest on it. He also removed the Tahmat, which was tied on

the neck of Meera Devi and prepared a recovery memo (Ext.

Ka 15). He also collected Meera's frock, which was

bloodstained and prepared its recovery memo (Ext. Ka 14).

PW 8, Shri Daya Ram Chaudhary, C.O. Faridpur started

the investigation of this case on 27.5.2009. He made

necessary entries of the report and all other papers, such as

inquest, photo lash, challan lash, report of R.I. etc. and also

recorded the statements of the witnesses of inquest and

recovery memos etc.

The post-mortem was conducted by a panel consisting of

Dr. Anil Kumar Agrawal, Dr. M.K. Shukla and Dr. Sarika Singh

on the directions of the District Magistrate, Bareilly on

27.5.2009 at 11.45 PM.

The deceased was about 10 years in age. The time of

death was about half a day. The body was average built. Eyes

were closed, mouth was partially opened. Rigor mortis was

present in upper and lower limbs and there was no sign of

decomposition. Wheat grains and dust were present on all the

side of the body and perineum and inside the vagina. Some

digested food material was coming out from the nose and

mouth.

The following ante-mortem injuries were seen:

1.Multiple abrasion at right side of chest in an area of 6 x

4 cm.

2.Multiple abrasion in front and both sides of upper parts of

neck, just above the glottis and 5 cm below the chin in an

area of 11 cm in transverse direction and 5 cm in the

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vertical direction.

3.Multiple abrasion at the back of left elbow in area of 4 cm

x 2 cm.

4.Multiple abrasion in area of 3 cm x 2 cm at natal cleft.

5.Multiple abrasion on both labia majora with rupture of

hymen and interior vaginal wall. Blood clots seen in

vaginal and inner aspect of labia majora.

6.Abrasion present on right side of anal opening with tear

of posterior lateral wall on right side of anal canal.

On internal examination, the doctors found that the

brain, larynx, both lungs were congested with fracture of both

the cartilages of the larynx. Right side of the heart was full and

left was empty. There was 100 gms of semi digested food in

the stomach. Small intestine was filled with gas and fluid

whereas the large intestine contained gas and faecal matter.

The gall bladder was congested. The Spleen which weighed 70

gms was congested. Kidneys weighed 180 gms and both were

congested.

Two vaginal slides and swabs were taken, sealed and

handed over to the constable.

PW 9 Dr. Anil Agarwal who conducted post mortem on

the deceased did not express any opinion whether the

deceased had been raped, but he only noted that the cause of

death was asphyxia as a result of throttling. PW 5 Dr. Sarika

Singh, and PW 3 Dr. Manoj Kumar Shukla who also expressed

second and third opinions in this case regarding the ante-

mortem injuries have however seen signs of rape on the

deceased.

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On 28.5.2009 at 2.20 PM, the appellant was arrested. He

was interrogated and thereafter he got the underwear and

slipper of the deceased Meera Devi recovered from an almirah,

which was kept in the room of the tube well when he was

taken to the tube well by the investigating officer and the

accompanying police personnel. The clothes of the appellant

(white pant, one ready made nylon vest, and beige coloured

underwear, which had spots of blood on front were also taken

into possession and recovery memo of the same (Ext. Ka 17)

was prepared by SI Harikesh Tiwari on the dictation of the

investigating officer. On the pointing out of the informant

Heera Lal, site plan of the occurrence was prepared by the

investigating officer (Ext. Ka 18). After recording the

statements of other witnesses and after completing the

necessary formalities, the charge sheet was submitted (vide

Ext. Ka 19).

The frock, slippers and underwear of the deceased, and

the pant, underwear and vest of the appellant were sent to the

Forensic Science Laboratory, Lucknow, which submitted a

report (Ext. Ka 20) dated 31.10.09 indicating that blood was

found on all the aforesaid items, except the vest of the

appellant. On the frock and underwear of the deceased and on

the pant of the appellant there was human blood. On the

underwear of the appellant and the deceased spermatozoa and

human semen were seen. But no semen or spermatozoa were

found on the other four items.

PW 1, Heera Lal deposed that he was a crafts man

(Shilpkar). His daughter Meera Devi, aged 10 years had gone

with his nephew Vivesh, aged 6-7 years for grazing goats on

27.5.2009 at about 9.00 a.m. to the Jungle. When she became

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thirsty at about 10.00 a.m., she had gone to the tube well of

one Munish Pal, which was operated by the appellant Ashok.

Ashok caught hold of her, dragged her into a room of the tube

well, committed rape on her and then killed her by throttling

her. There were injuries on her private parts. The appellant

had hidden her corpse in a haystack. At about 11.00 a.m.

when Vivesh returned home without Meera Devi, then this

witness enquired from Vivesh, who disclosed that Meera had

gone to the tube well for drinking water. After that he did not

know about her whereabouts.

Then the witness proceeded to the tube well and

enquired from Ashok, who disclosed that Meera had come to

the tube well, had drunk water and gone away and he had no

other information. He was accompanied by PW 4, Ram Singh,

PW 10 Naresh and one Rana Singh Chauhan. Maiku also

reached the spot. On search, they found the corpse of Meera

Devi under the haystack in the inner room of the tube well. At

that time Ashok made good his escape. A large number of

villagers had gathered. Leaving his daughter's corpse on the

spot, he had gone to the police station where he met Mohd

Irfan, resident of village Bhagwatpur, to whom he dictated the

report.

PW 2, Vivesh, aged 10 years (on the date of examination,

i.e. 18.11.2011), was tested by the trial judge regarding his

mental capacity to understand questions and to give evidence.

On being satisfied about his competence to depose, his

evidence was recorded by the Trial Judge. This witness

disclosed that the incident had taken place two years and two

months earlier. Meera was the daughter of his elder uncle.

They had gone to graze goats in the Jungle. It was pre-noon,

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when they became thirsty. They had then gone to the tube

well of Munish Pal where both drank water. After that when

they tried to leave, then Ashok caught hold of Meera, took off

Meera's panty who cried out, Vivesh ran out of fear and came

home. He disclosed these facts to his uncle. Ashok had

strangulated Meera. He identified Ashok in Court as the person

who had committed the crime.

PW 4 Ram Singh deposed that Meera, daughter of Heera

Lal had gone to graze her goats in the Jungle near the tube

well of Munish Pal. Heera's nephew by relation Vivesh, aged 8

years accompanied her. Ashok was operating the tube well

where Meera and Vivesh had gone to drink water. Then Ashok

had caught hold of Meera in an indecent manner, forcibly taken

her in a room at the tube well and committed rape on her and

caused injuries to her. When Vivesh informed Meera's father

Heera Lal about these facts at about 11.00 a.m., then Heera

Lal narrated these facts to this witness and Naresh, Chunni Lal,

Maiku and Ram Singh Chauhan and they all proceeded

together to the tube well. There they met Ashok. Heera

enquired from Ashok about Meera. He stated that Meera had

come to drink water, but he did not know where she has gone

thereafter. Then they started searching for Meera at the tube

well and they found her corpse in a haystack in the Kothri. In

the meantime Ashok ran away from the spot.

PW 10, Naresh has also substantially reiterated the

version of PW 4 Ram Singh. He also accompanied the

informant Heera Lal to the tube well and narrated as to what

had transpired in the the encounter of Ashok with Heera Lal

and the other witnesses.

We have heard Shri P.N. Mishra, learned Senior counsel

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for the appellant and Shri Akhilesh Singh, learned Government

Advocate and have perused the written arguments submitted

by the parties.

Shri P.N. Mishra, learned counsel for the appellant did not

dispute the fact of commission of rape on the deceased or that

the cause of her death was homicidal.

Shri Mishra however contended that PW 2 Vivesh was a

child witness and his evidence as an eyewitness was largely

based on imagination and was not reliable. In the FIR the

informant, PW 1, Heera Lal has stated that after Vivesh

returned at 11.00 a.m., Heera Lal enquired about the

whereabouts of Meera from him and Vivesh informed him that

Meera had gone with him to drink water at the tube well.

Thereafter he did not know what happened to her. There was

no direct evidence of rape, murder of the deceased and

concealment of the dead body by the appellant. The disclosure

of Vivesh, PW 2 during trial that he had seen the appellant

catching hold of Meera, undressing her and taking her inside

and also strangulating her were based more on the

imagination of Vivesh, than what he saw by himself and was

contrary to his earlier disclosure that Meera had gone to the

tube well to drink water and he did not know what happened to

her after that. If this witness had seen these developments, he

would have rushed to his house immediately to inform his

parents and Meera's parents and he would not have come

home after an hour at 11.00 a.m. This renders it probable that

someone else could have committed the rape and murder in

the meantime. The presence of Ashok, the appellant at the

tube well when the witnesses went there to make enquiries

from him regarding the whereabouts of Meera was improbable

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as he had ample time to run away. Also once the witnesses

had found the corpse in the haystack in the Kothri, when the

appellant was present there, they would not have allowed the

appellant to escape and would have apprehended him at that

spot itself. His non-apprehension at the spot suggests that the

appellant was not present at the time the witnesses arrived at

the tube well.

It is further contended that not much weight could be

placed on the recovery of the underwear and slipper of the

deceased on the pointing out of the appellant because no

identification of these articles by the witnesses was conducted.

Also there was no proof that the Tahmat which was tied around

the the neck of Meera belonged to the appellant. The

incriminating circumstances were not specifically put to the

appellant under section 313 Cr.P.C. The incriminating

circumstances could, therefore, not be used against the

appellant in view of the law laid down by the Apex Court in the

cases of Ashraf Ali Vs. State of Assam, 2008 Cri.L.J. 4338 and

S. Harnam Singh Vs. State, AIR 1976 SC 2140.

Alternatively it is argued that in any case the sentence of

death awarded to the appellant was excessive and this case

could not be considered as the rarest of rare case. Also the

Trial Judge has given no finding as to the possibility or

otherwise of rehabilitation and reformation of the accused

especially when the appellant has no previous criminal

antecedents.

On the other hand, the learned Government Advocate

contended that the circumstances of this case clearly establish

the complicity of the appellant in the offence. There was no

reason for the child witness Vivesh, PW 2 to have falsely

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nominated the appellant for having committed the crime, even

if part of the testimony of Vivesh wherein he has deposed in

his evidence that he had seen the appellant catching hold of

Meera, taking down her underwear, her raising a cry and then

Ashok strangulating her, could be the result of this child

witness imagination as suggested by the learned counsel for

the appellant. But so far as the other part of the statement

that he had left Meera at the tube well where they had gone to

drink water where Ashok was present is concerned, there was

no reason to disbelieve that part of his evidence. The FIR when

read as a whole suggests that Vivesh had disclosed about the

presence of Ashok at the tube well. Therefore the informant

Heeral Lal had immediately proceeded to the tube well to make

inquiries from him. The admission of the appellant before the

witnesses that Meera had come to drink water at his tube well,

but his suggestion that the deceased had gone away

thereafter, was a strong circumstance against the appellant, as

the appellant had given a false statement, and the corpse of

the deceased was found hidden in the haystack in the room

where he was present, on the search by the witnesses at that

time.

It is further contended that more significantly, the

allegation of rape against the appellant is corroborated by the

fact that the appellant was arrested the subsequent day after

the crime on 28.5.2009. He was made to take off his clothes,

which included his pant, black nylon vest and mustard coloured

underwear which had blood spots on its front. Also the slippers

and underwear of the deceased which the appellant had got

recovered had blood stains. As per the Forensic laboratory

report, the appellant's and the deceased's underwear

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contained human blood and semen.

It is also argued that even though the circumstances and

evidence were put to the appellant in a composite manner and

the circumstances were not separately put to the appellant,

but it could not be said that the appellant was unaware of the

circumstances against him. There was no miscarriage of justice

so as to entitle the appellant for acquittal on this ground alone.

There was no reason for the false implication of the appellant

by the witnesses Heera Lal, Vivesh and Ram Singh, whose

testimonies are unshaken and intact. Looking to the gravity of

the crime where a 10 years old girl had been brutally raped

and thereafter murdered, the death sentence was the only

proper sentence in this case.

Why the appellant did not run away from the tube- well

after the incident is a matter for speculation as it is entirely

possible that the appellant may have thought that his running

away might have given rise to suspicion against him, or he

may have thought that no search would immediately be made

in the tube well or in the room where the dead body was

concealed under the haystack or that he could have

browbeaten the informant, the father of the deceased, (who

was an impoverished crafts man belonging to the Scheduled

castes), not to search the premises at that time, or that he

might have been waiting for an opportune time to remove the

dead body. Also there was nothing unnatural in the appellant

running away at the time when the witnesses were busy

hunting for the body inside the kothri at the tube well.

Analysis of evidence and contentions:

An analysis of the evidence and arguments shows that

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there is no dispute about the fact that the deceased had been

raped and thereafter done to death and that the cause of her

death was homicidal.

The question is whether the identity of the appellant is

fixed as the author of the crime.

So far as the contention of the appellant's counsel that

the evidence of the child witness Vivesh could not be implicitly

replied on and he had at least partly relied on his imagination,

as some of the details regarding the manner of incident were

absent from the FIR. It may be mentioned that the law

describing how the evidence of a child witness needs to be

appreciated has been clearly enunciated in a catena of

decisions of the Apex Court. Thus in Suryanarayana v. State of

Karnataka, (2001) 9 SCC 129, at page 132 it has been held in

paragraph 5:

Admittedly, Bhavya (PW 2), who at the time of occurrence

was about four years of age, is the only solitary eyewitness

who was rightly not given the oath. The time and place of the

occurrence and the attending circumstances of the case

suggest no possibility of there being any other person as an

eyewitness. The evidence of the child witness cannot be

rejected per se, but the court, as a rule of prudence, is

required to consider such evidence with close scrutiny and only

on being convinced about the quality of the statements and its

reliability, base conviction by accepting the statement of the

child witness. The evidence of PW 2 cannot be discarded only

on the ground of her being of tender age. The fact of PW 2

being a child witness would require the court to scrutinise her

evidence with care and caution. If she is shown to have stood

the test of cross-examination and there is no infirmity in her

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evidence, the prosecution can rightly claim a conviction based

upon her testimony alone. Corroboration of the testimony of a

child witness is not a rule but a measure of caution and

prudence. Some discrepancies in the statement of a child

witness cannot be made the basis for discarding the testimony.

Discrepancies in the deposition, if not in material particulars,

would lend credence to the testimony of a child witness who,

under the normal circumstances, would like to mix-up what

the witness saw with what he or she is likely to imagine to

have seen. While appreciating the evidence of the child

witness, the courts are required to rule out the possibility of

the child being tutored. In the absence of any allegation

regarding tutoring or using the child witness for ulterior

purposes of the prosecution, the courts have no option but to

rely upon the confidence inspiring testimony of such witness

for the purposes of holding the accused guilty or not.

(Underlining added).

Likewise in Panchhi v. State of U.P. (1998) 7 SCC 177,

Prakash v. State of M.P., (1992) 4 SCC 225, Baby

Kandayanathil v. State of Kerala, (1993) Supp (3) SCC 667,

Raja Ram Yadav v. State of Bihar, (1996) 9 SCC 287, and

Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC

341, and more recently in Shivashranappa v. State of

Karnataka, (2013) 5 SCC 705, where the aforesaid case law

has been approved, it has been held that there is no law that

the evidence of a child witness cannot be acted upon without

corroboration. However greater circumspection is required for

evaluating the evidence of a child witness, because a child is

susceptible to being tutored and swayed by others. However

the law that the evidence of a child witness requires adequate

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corroboration before it can be relied upon is more a matter of

practical wisdom than of law.

We find that in the present case, even if it could be said

that some part of the testimony could be the product of the

child's imagination, as the child may not have seen the entire

incident, but it could not be said that the child witness PW 2,

Vivesh had been tutored to nominate the appellant

immediately after the crime for any ulterior reason. Also as we

shall presently show that there are a number of circumstances

which are sufficient for linking the appellant with this crime in a

convincing manner.

Here it may be noted that the FIR was lodged at 2.00 PM

on 27.5.2009 at PS Bhuta, which was 21 Kms from the place of

incident. Vivesh, PW 2, the child witness had returned home at

about 11.00 a.m. and informed that Meera had gone to drink

water at Munish's tube-well which was operated by the

appellant. Thereafter the complainant PW 1 Heera Lal along

with PW 4 Ram Singh and PW 10 Ram Naresh had gone to the

tube well, and made enquiries from the appellant Ashok, who

gave evasive replies. On search in the tube well kothri the

dead body of Meera was found hidden under a haystack and

Ashok finding an opportunity had fled from the spot. The entire

version was thereafter mentioned in the FIR, which was lodged

within 3 hours of Vivesh communicating the fact of the

deceased having gone to drink water at the tube-well which

the appellant was operating, and after a number of subsequent

steps had been taken by Heera Lal, PW 1, the father of the

deceased. The FIR was therefore extremely prompt and does

not appear to be the product of any tutoring or external

suggestion.

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In our view the appellant's counsel has torn a few lines

from the FIR where it is mentioned that when the informant's

nephew reached home at about 11 a.m, but Meera did not

return, then he questioned Vivesh who disclosed that Meera

had gone to the engine tube well to drink water, after that he

did not know about her whereabouts. But in the context of the

entire FIR, where it is mentioned that immediately thereafter

this witness went to the tube well and enquired from Ashok,

who used to operate the tube well about his daughter, Ashok

did not give a proper answer. Then they found Meera's body

covered under a heap of hay in the tube well kothri, and at

that time Ashok fled away from the tube well. From these

averments it is clear that Vivesh had informed the informant

regarding the presence of the appellant Ashok at the tube well,

hence Heera Lal immediately proceeded there for making

inquires from the appellant. It is because a condensed

language is used in an FIR, which is not required to be an

encyclopaedia, that the details of the disclosure made by

Vivesh to Heera Lal were not mentioned therein. We find that

no suggestion was given, nor was any explanation sought from

the informant Heera Lal, PW 1, as to why he had not

specifically mentioned in that part of the FIR where he referred

to the disclosure of Vivesh on his inquiries regarding Meera, as

to whether Vivesh had only told him that Meera had gone to

the tube well and thereafter Vivesh did not know about her

whereabouts, and that Vivesh had no knowledge of the

presence of the appellant at the tube well at that time. The

reason for not seeking this clarification from the informant was

because on a complete reading of the FIR, the inference is

unavoidable that Vivesh had disclosed about the presence of

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the appellant Ashok at the tube well to the informant, when

Meera went to drink water there. This is also what Vivesh had

stated in Court in his evidence.

Significantly specific questions have been put to Vivesh

PW 2 as to whether he returned to his goats after drinking

water at the tube well? To which Vivesh replied in the

affirmative. Vivesh was also questioned as to whether Meera

had returned with Vivesh? To which Vivesh had replied in the

negative. When Vivesh stated that Ashok had taken Meera into

the room, a question was put to Vivesh, as to whether he had

run away at that time. To this Vivesh answered “yes.” From

this cross-examination it is apparent that the appellant admits

his presence at the tube well and the joint arrival of Meera and

Vivesh there.

There was also no good reason why the appellant would

have been falsely nominated for this crime if he had no

concern with the incident.

The appellant has not even disputed that he was running

the tube well. On a query by the witnesses PW 1, Heera Lal,

PW 4, Ram Singh the appellant had admitted that Meera had

come to drink water in the morning, but she had gone away

thereafter. The appellant had also falsely stated to the

witnesses PW 1 Heera Lal, PW 4 Ram Singh and PW 10 Naresh

that the deceased had gone away after drinking water, which

statement was contradicted when the corpse of the deceased

was found lying under the haystack in the Kothari of the tube

well by the witnesses. There is no reason to disbelieve this part

of the testimony of the witnesses, nor was there no reason

why PW 1 Heera Lal, PW 4 Ram Singh and PW 10 Naresh

would have invented such an admission by the appellant that

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the deceased had come to the tube well or that she had

subsequently gone away. No specific suggestion was given to

these two witnesses that the appellant had not made any

admission before them that Meera had come to drink water,

but had gone away. This false version of the appellant that the

deceased had gone away after drinking water (when her body

was found under the haystack) was a very important additional

circumstance to link the appellant with this crime.

The recovery of the underwear and slippers of the

deceased (Ext. Ka 16) from the almirah of the Kothari at the

instance of the appellant when he was arrested on 28.5.2009

(one day after the incident), which contained blood, (the

underwear of the deceased even contained human blood,

human semen and spermatozoa) as per the report of the

Forensic Laboratory Lucknow dated 31.10.2009 (Ext. Ka 20),

of which he has offered no explanation save by making a

general denial and offering a suggestion that the recovery was

false and fabricated, is another circumstance to link the

appellant with this crime.

However, the most significant circumstances which

strongly connects the appellant with this crime was the

presence of human blood on the appellant's underwear on his

arrest by the police on 28.5.09 as noted in the recovery memo

(Ext. Ka 17). According to the report of the Forensic Science

Laboratory (Ext. Ka 20) dated 31.10.09 the frock, underwear

of the appellant and deceased, and the appellant's pant

contained blood. More specifically, according to the forensic

report, both the underwear of the appellant and the deceased

contained human blood. There was no explanation as to how

the appellant's underwear contained human semen and more

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particularly human blood.

We may next examine the merit of the contention of the

learned counsel for the appellant that the individual

circumstances had not been put to the appellant under section

313 Cr.P.C. and that the evidence has been compositely put to

the accused-appellant, hence the same needs to be eschewed.

So far as the two Apex Court decisions, Ashraf Ali Vs.

State of Assam, 2008 Cri.L.J. 4338 and S. Harnam Singh Vs.

State, AIR 1976 SC 2140 cited by the appellant's counsel are

concerned, these decisions admit that even if the specific

circumstances are not put to the accused is a curable

irregularity, unless it is shown that as a consequence the

accused was prejudiced in not being made aware of the

circumstances against him. Merely by not putting the

circumstances to the accused separately in his statement

under section 313 Cr.P.C ( s. 342, in the Old 1898 Code) it

cannot be presumed that there has been a miscarriage of

justice. However in their peculiar facts and circumstances, in

the two cited cases the Supreme Court had held that the

accused had been prejudiced by not putting the separate

circumstances to him.

In the instant case we find that a reference has been

made to the memo of the clothes worn by the accused (Ext. Ka

17) regarding which (question No. 2 ) in the 313 Cr.P.C. was

framed and also the report of the Forensic Science Laboratory

(Ext. Ka 20). The I.O., PW 8, C.O. Faridpur, Sri Dayaram

Chaudary, has also specifically stated in his evidence that

when the accused was arrested on 28.5.2009, one day after

the incident, then his clothes were taken into possession by the

police, whose recovery memo was prepared (Ext. Ka 17) on

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the dictation of this witness. The recovery memo clearly noted

the presence of blood on the front side of the mustard

underwear of the appellant. The clothes which the accused was

wearing had been taken into possession and were sent to the

Forensic Science Laboratory. The Laboratory report (Ext. Ka

20) indicated the presence of blood and semen on the

underwear of the deceased and appellant. The reply of the

appellant to these queries was simply that the said reports had

been prepared in a fabricated and wrongful manner.

In this context in Shivaji Sahabrao Bobade and another

Vs. State of Maharashtra, (1993)2 SCC 793, Hon'ble Krishna

Iyer, J speaking for the Bench, observed that even where an

omission has been committed by the trial Judge in not

specifically putting any question regarding the point of

presence of blood on the pant of the appellant - which was an

important requirement of a criminal trial, however not putting

of the circumstance does not ipso facto vitiate the trial, unless

the prejudice caused to the accused is shown. Also according

to this ruling (and some other law reports that have followed

this three judge decision) it is even possible to ask the

appellant's counsel to state as to what possible explanation the

accused could offer for such incriminating circumstances: The

relevant lines in Shivaji Sahabrao Bobade read:

“Where such an omission has occurred it does not ipso

facto vitiate the proceedings and prejudice occasioned by such

defect must be established by the accused. In the event of

evidentiary material not being put to the accused,the Court

must ordinarily eschew such material from consideration. It is

also open to the appellate Court to call upon the counsel for

the accused to show what explanation the accused has

20

as regards the circumstances established against him

but not put to him and if the accused is unable to offer the

appellant Court any plausible or reasonable explanation of

such circumstances, the Court may assume that no acceptable

answer exists and that even if the accused had been

questioned at the proper time in the trial Court he would not

have been able to furnish any good ground to get out of the

circumstances on which the trial Court had relied for its

conviction. In such a case, the Court proceeds on the footing

that though a grave irregularity has occurred as regards

compliance with Section 342 Cr.P.C. the omission has not been

shown to have caused prejudice to the accused.” (Underlining

and emphasis added by us).

Likewise in paragraph 13 in State (Delhi Administration)

Vs. Dharampal (2001)10 SCC 372 it has been held:

“Thus it is to be seen that where an omission, to bring

the attention of the accused to an inculpatory material has

occurred, that does not ipso facto vitiate the proceedings. The

accused must show that failure of justice was occasioned by

such omission. Further, in the event of an inculpatory material

not having been put to the accused, the appellate court can

always make good that lapse by calling upon the counsel for

the accused to show what explanation the accused has as

regards the circumstances established against the accused but

not put to him.” (Underlining added by us)

Again in Paramjeet Singh alias Pamma Vs. State of

Uttrakhand )2010)10 SCC 439, it has been held that although

section 313 Cr.P.C. makes it obligatory for the Court to put a

question on the circumstance against him so as to offer him an

opportunity to explain the same, but it was not enough for an

21

accused to show that he has not been questioned or examined

on a particular circumstance, instead he has to show that non-

examination has actually and materially prejudiced him and

resulted in failure of justice.

In the light of the observations in the aforesaid law

reports we had specifically questioned Shri P.N. Mishra,

learned Senior counsel for the appellant as to what

explanation the accused could possibly offer for the presence

of human blood and semen (as confirmed by the Forensic

laboratory (Ext. Ka 20) on the underwear that the appellant

was wearing which was taken into possession by the police the

next day after the incident on his arrest (vide Ext. Ka 17). On

this point the learned counsel for the appellant failed to give

any explanation on behalf of the appellant. In his written

arguments which were sought by us on conclusion of

arguments we also find no explanation. In our view it may be

possible to conceive that the presence of semen on the

underwear of the appellant, may be due to a spontaneous

emission, but the presence of human blood on the underwear

of the 29 year old married appellant, which was taken into

possession the next day after the crime, cannot be assumed to

spontaneously come into existence, particularly if the

underwear of the deceased who was last seen with the

appellant also contained blood and semen. It was for the

accused to offer an explanation of this strong incriminating

circumstance against him, but no explanation has been

furnished either by the appellant or his counsel.

It is also significant that although a suggestion was

given to the I.O., PW 8 Sri Dayaram Chaudary in his cross-

examination that the appellant had not got the slippers and

22

underwear of the deceased recovered, which suggestion was

however refuted by the witness, but no suggestion was even

given that his clothes (including the semen and bloodstained

underwear), which the appellant is said to have been wearing

at that time, had not been taken into possession by this

witness when he arrested the appellant.

In the light of the aforesaid circumstances we find that

ample opportunity existed for the accused or his counsel to

offer a possible explanation for the presence of semen and

especially blood on his under wear. We find no explanation,

but only a blanket reply that the said material had been foisted

on the appellant in a false and fabricated manner. We are thus

left with no option but to conclude that there is no acceptable

explanation for this circumstance, and the accused has not

been able to show what prejudice has been caused to him by

questioning him generally and compositely and not individually

about this feature, viz. the presence of blood on the underwear

(as found in the recovery memo – Ext. Ka 17 as confirmed by

the forensic report (ext. Ka 20), and evidence of PW 8, the I.O.

on this point. The non explanation or blanket denial is thus a

significant incriminating circumstance for linking the appellant

with the crime.

The incriminating circumstances against the appellant

may be summarized as follows:

1.The 10 year old deceased Meera had gone along with her 6

year old cousin brother PW 2 Vivesh to graze her goats in the

pasture land near the tube well of Munish Pal.

2.The deceased and Vivesh had gone at about 10 a.m. to drink

water at the tube well of Munish Pal which was being operated

by the appellant Ashok.

23

3.Vivesh had returned home at about 11 a.m. and given

information regarding the deceased going to the tube well of

Munish Pal which the appellant was operating and her

disappearing thereafter. Thus there was evidence of the

appellant and the deceased being recently seen together

4.The improvements in the testimony of the child witness

Vivesh about how the appellant had disrobed the deceased or

taken her inside and throttled her which facts were not

mentioned in the FIR may have been improvements based on

the child's imagination. But the substratum of the child's story

that it was the appellant who had last met the deceased rings

true and there was no reason for the child being tutored to

falsely name the appellant for this crime in the prompt FIR of

this case.

5.The informant, PW 1 Heera Lal accompanied by PW 4 Ram

Singh and PW 10 Naresh and other villagers thereafter visited

the tube well run by the appellant Ashok. On their questioning

the appellant admitted that the deceased child Meera Devi had

come to the tube well, but that he claimed that she had gone

away thereafter. This explanation was patently false as the

witnesses Heera Lal, Ram Singh, Naresh and others had found

the corpse of Meera Devi hidden under the hay stack in the

same room. Meanwhile the appellant absconded from the

spot. Not only did the appellant fail to give any explanation as

to what happened to the deceased after she was last seen

together with the appellant by PW 2 Vivesh, the child witness,

but he has given a false explanation regarding her

whereabouts, that she had gone away whereas the dead body

was found concealed under the hay stack in the same room.

6.The deceased had abrasions and injuries on different parts of

24

her body and the cause of her death was asphyxia due to

throttling. The Doctors also found signs of the deceased having

been raped.

7.The appellant was arrested on 28.5.09. He got the blood

stained slippers and underwear of the deceased recovered

from an almirah in the room adjoining the tube well. His

clothes, (which included his pant, underwear, and vest) were

also taken into possession by the police.

8.The police had found blood stains on the front of his

underwear, and the FSL had found blood on the pant,

underwear and vest of the appellant, and on the slippers and

underwear of the deceased. The FSL had also found seminal

stains on the appellant and the deceased's underwear.

9.Most significantly neither the appellant, nor even his counsel

in the High Court on our questioning had been able to give any

explanation for the presence of seminal stains and more

importantly human blood stains on the appellant's underwear

at the time of his arrest, which was admittedly collected by the

police.

The chain of circumstances for showing the involvement of the

appellant in this crime is thus complete, and the circumstances

unmistakably connect the appellant with the crime, and give

rise to only an inference of the involvement of the appellant in

this crime, and cumulatively the circumstances are inconsistent

with any hypothesis of the innocence of the appellant.

One last question remains as to whether it would be

appropriate to confirm the sentence of death awarded to the

appellant or whether it would be more appropriate for this

Court to replace the sentence of death with a sentence of

imprisonment for life.

25

The trial Judge has awarded a sentence of death in this

case, holding that this case involved the murder of a hapless

little child, who must have been the star (i.e. the darling) in

the eyes of her parents. He referred to the Delhi gang rape

case which had shocked the conscience of the country, the

general public and the Parliament, and that the maximum

penalty of death is required for crushing such crimes of sexual

violence against women.

Whereas it is true that deterrent punishments are required

to be awarded for such crimes of sexual violence and homicide

of innocent victims, especially if the victim happens to be a

little child, as in this case. But the latest trend in penology, as

reflected in the movement from retributive and deterrent to

reformative justice, the worldwide trend to abolish the death

penalty, and the clear injunction in the pronouncements of the

Apex Court and this Court to award the death penalty only in

the rarest of rare exceptional case, where the other option of

awarding the normal life sentence is unquestionably foreclosed,

after looking at the prisoners antecedents and after a careful

balancing of the aggravating and mitigating circumstances,

giving maximum weightage to the latter, cannot be lost sight

of. In the Constitutional bench decision, Bachan Singh vs.

State of Punjab, (1980) 2 SCC 684 which was even cited by

the trial judge, the Apex Court has enjoined giving importance

to the antecedents of the prisoner, apart from the gravity of

the crime, for reaching the conclusion whether only a death

sentence was appropriate. One important mitigating

circumstance to be taken into account was whether the

accused had a previous criminal history, or whether there was

any material to suggest that his reform was wholly improbable

26

and that he was likely to commit such crimes in future. The

appellant's lawyer before the trial Court appears to have raised

these points, regarding the absence of criminal antecedents of

the accused, and his having a three year old child at the time

of judgement, but although noticed, these points have not

been considered by the trial Judge, except by referring to the

dastardly nature of the crime. Another factor which has not

been taken into account is that the crime committed by the

appellant does not appear to have been a cold, and calculated

crime, where he had enticed the victim, but more probably one

that appears to have been committed when the victim

suddenly arrived at his tube well, when losing all power of self

control, the appellant appears to have committed rape on the

girl, and thereafter to have throttled the girl and then clumsily

tried to conceal her dead body under the hay stack, to prevent

his being exposed for the crime, when the witnesses arrived

and questioned him about the whereabouts of the girl. In

somewhat similar circumstances, in Amit v State of U.P.,

(2012) 4 SCC 107, where a 3 year old girl had been murdered

by a 28 year old man, the Court converted a sentence of death

to a sentence of life imprisonment, to run for the whole life of

the prisoner, as he had no criminal antecedents, and it was not

likely that the accused would repeat the offence. Thus it was

mentioned in the decision in para 22:

“In the present case also, we find that when the

appellant committed the offence he was a young person

aged about 28 years only. There is no evidence to show that

he had committed the offences of kidnapping, rape or

murder on any earlier occasion. There is nothing on

evidence to suggest that he is likely to repeat similar crimes

27

in future. On the other hand, given a chance he may reform

over a period of years. Hence, following the judgment of the

three-Judge Bench in Rameshbhai Chandubhai Rathod (2)

v. State of Gujarat, (2011) 2 SCC 764 we convert the death

sentence awarded to the appellant to imprisonment for life

and direct that the life sentence of the appellant will extend

to his full life subject to any remission or commutation at

the instance of the Government for good and sufficient

reasons.”

In Raju v State of Haryana, (2001) 9 SCC 50, the appellant

had committed the rape and murder of the 11 year old

deceased after enticing her with toffees. On his arrest, his shirt

and and pant had bloodstains and his underwear had blood

and seminal stains. The accused gave no explanation of the

blood stains. The Supreme Court held that the as the

appellant appeared to have acted without premeditation in

giving two brick blows to the deceased after she threatened to

expose him, and had no criminal antecedents, and it could not

be concluded that he would be a danger to society, the

sentence of death awarded by the Courts below was commuted

to a sentence of imprisonment for life.

In Amrit Singh v. State of Punjab, (2006) 12 SCC 79,

where a 6 or 7 year old child was raped and murdered by the

31 year old accused, the Apex Court had converted the

sentence of death to life imprisonment holding that this was

not the rarest of rare case and the crime may have been

committed because of a momentary lapse, on part of the the

accused on the seeing the girl at a secluded place, and the

deceased may have been gagged inadvertently, without any

intention to kill her. Paragraphs 21 and 22 of the law report

28

read:

“21. The opinion of the learned trial Judge as also the

High Court that the appellant being aged about 31 years

and not suffering from any disease, was in a dominating

position and might have got her mouth gagged cannot be

held to be irrelevant. Some marks of violence not only on

the neck but also on her mouth were found. Submission of

Mr. Agarwal, however, that the appellant might not have an

intention to kill the deceased, thus, may have some force.

The death occurred not as a result of strangulation but

because of excessive bleeding. The deceased had bleed half

a litre of blood. Dr Reshamchand Singh, PW 1 did not state

that injury on the neck could have contributed to her death.

The death occurred, therefore, as a consequence of and not

because of any specific overt act on the part of the

appellant.

22. Imposition of death penalty in a case of this nature, in

our opinion, was, thus, improper. Even otherwise, it cannot

be said to be a rarest of rare cases. The manner in which

the deceased was raped may be brutal but it could have

been a momentary lapse on the part of the appellant,

seeing a lonely girl at a secluded place. He had no

premeditation for commission of the offence. The offence

may look heinous, but under no circumstances, can it be

said to be a rarest of rare cases.”

In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat,

(2011) 2 SCC 764 there was a difference of opinion of the two

Judges who had heard the case on the sentence to be

awarded. Accordingly the matter was referred to a larger

29

Bench which observed that as the accused was about 27 years

of age who had raped and killed a child studying in a school in

Class IV, but as there was no finding regarding the possible

reformation and rehabilitation of the appellant and the

possibility of his becoming a useful becoming a useful member

of society on being given the opportunity, hence the proper

course in the case would be to substitute the sentence of death

with a sentence of imprisonment for life subject to remissions

and commutation at the instance of the Government for good

and sufficient reasons. Paragraphs 9 and 10 of the law report

at SCC page 767, read as follows:

“9. Both the Hon’ble Judges have relied extensively on

Dhananjoy Chatterjee case,(1994) 2 SCC 220 . In this case the

death sentence had been awarded by the trial court on similar

facts and confirmed by the Calcutta High Court and the appeal

too dismissed by this Court leading to the execution of the

accused. Ganguly, J. has, however, drawn a distinction on the

facts of that case and the present one and held that as the

appellant was a young man, only 27 years of age, it was

obligatory on the trial court to have given a finding as to a

possible rehabilitation and reformation and the possibility that

he could still become a useful member of society in case he

was given a chance to do so.

10. We are, therefore, of the opinion that in the light of the

findings recorded by Ganguly, J. it would not be proper to

maintain the death sentence on the appellant.” Both the

Hon’ble Judges have relied extensively on Dhananjoy

Chatterjee case,(1994) 2 SCC 220 . In this case the death

30

sentence had been awarded by the trial court on similar facts

and confirmed by the Calcutta High Court and the appeal too

dismissed by this Court leading to the execution of the

accused. Ganguly, J. has, however, drawn a distinction on the

facts of that case and the present one and held that as the

appellant was a young man, only 27 years of age, it was

obligatory on the trial court to have given a finding as to a

possible rehabilitation and reformation and the possibility that

he could still become a useful member of society in case he

was given a chance to do so.”

In Akhtar v. State of U.P., (1999) 6 SCC 60, for the rape

and murder by gagging of a young girl, who the appellant

came across at a lonely place, the sentence of death awarded

to the accused was converted to one of life imprisonment and

it was observed in paragraph 3 at SCC pp. 62-63:

“3. … But in the case in hand on examining the evidence

of the three witnesses it appears to us that the appellant-

accused has committed the murder of the deceased girl not

intentionally and with any premeditation. On the other hand

the appellant-accused 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.”

In Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28,

where the 30 year old accused had raped and killed a one-and-

31

a-half year old child, even after describing the crime as

heinous, and that the appellant had no control over his carnal

desires, the Apex Court had converted the death penalty to

one of imprisonment for life holding that a humanist approach

needed to be followed and it could not be held that the

appellant was such a dangerous person who would endanger

the community. It was held at page 40 of SCC para 25:

“25. Coming to the case in hand, the crime committed is

undoubtedly serious and heinous and the conduct of the

appellant is reprehensible. It reveals a dirty and perverted

mind of a human being who has no control over his carnal

desires. Then the question is: whether the case can be

classified as of a ‘rarest of rare’ category justifying the

severest punishment of death. Treating the case on the

touchstone of the guidelines laid down in Bachan Singh,

(1980) 2 SCC 684, Machhi Singh, (1983) 3 SCC 470 and

other decisions and balancing the aggravating and

mitigating circumstances emerging from the evidence on

record, we are not persuaded to accept that the case can be

appropriately called one of the ‘rarest of rare cases’

deserving death penalty. We find it difficult to hold that the

appellant is such a dangerous person that to spare his life

will endanger the community. We are also not satisfied that

the circumstances of the crime are such that there is no

alternative but to impose death sentence even after

according maximum weightage to the mitigating

circumstances in favour of the offender. It is our considered

view that the case is one in which a humanist approach

should be taken in the matter of awarding punishment.”

32

In Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3

SCC127 which was a case where an impecunious 36 year old

U.P. migrant labourer had raped a young girl after being

rebuffed by her mother for demanding sexual favours, in which

the death penalty awarded to the accused was converted to life

imprisonment as there was no material for showing that the

appellant was involved in any other case or that he would be a

menace to society. In para 13 it was held (SCC p. 131):

“13. The next question that arises for consideration is

whether this is a ‘rarest of rare case’; we do not think that

this is a ‘rarest of rare case’ in which death penalty should

be imposed on the appellant. The appellant was aged 36

years at the time of the occurrence and there is no evidence

that the appellant had been involved in any other criminal

case previously and the appellant was a migrant labourer

from U.P. and was living in impecunious circumstances and

it cannot be said that he would be a menace to society in

future and no materials are placed before us to draw such a

conclusion. We do not think that the death penalty was

warranted in this case.”

Learned G.A. on the other hand in his written arguments

placed reliance on Mohd. Mannan v State of Bihar, (2011) 5

SCC 317, Rajendra Prahladrao Vasnik v. State of Maharashtra,

(2012) 4 SCC 37, and Shivaji v State of Maharashtra, (2009) 3

SCC (Cri) 146, where the Apex Court has held that on

balancing the aggravating with the mitigating circumstances,

the only punishment that would suffice in those cases looking

to the brutality of the crimes, was a sentence of death.

In Mohd. Mannan, a 7 year old girl had been done to

death by a 43 year old mason who was working in the house.

33

He had sent the victim child to buy betel to a shop after

winning her trust. He thereafter followed her to the shop, and

took her away on a bicycle to a lonely spot, where he

murdered her after causing various injuries to her for satisfying

his lust. None suspected his evil designs, as the victim was a

thin unattractive girl barely four feet in height. The Apex Court

noticed the brutality of the crime and considered the appellant

a menace incapable of reform.

In Rajendra Prahladrao Vasnik a 3 year old girl had been

lured away on the pretext of buying her biscuits away by a 31

year old man with a false identity who had and won the trust

of a poor family. Thereafter the girl had been brutally raped,

and there were bleeding injures on her nose and mouth, and

on her private parts. There were even bite marks on her chest.

The deceased was then left in a naked condition in an open

field.

Shivaji was a case where the 9 year old daughter of a

poor maid who had been deserted by her husband, was lured

by the appellant, a married teacher with 3 children, who had

won her trust with the promise of giving her fuel wood and

who was thereafter raped and then murdered by being

assaulted on the abdomen with a sharp edged weapon and

then strangulated with a rope.

It is apparent that the facts and circumstances of each of

these cases is quite different. In these cases after winning the

trust of the victim or her family a minor girl has been lured,

raped and then done to death by a wily assailant after some

cold blooded planning. In the present case it appears that the

appellant came upon the victim girl all of a sudden, and

probably after losing control over his senses, he may have

34

committed the dastardly crime. After which he tried to

hurriedly conceal the offence by hiding the victim under some

straw in the room, which crime was readily exposed by the

informant and other persons who arrived soon thereafter.

In the recent decision of the Apex Court, Shankar

Kisanrao Khade v State of Maharashtra, (2013) 5 SCC 546, its

earlier decision in Sangeet v. State of Haryana, (2013) 2 SCC

452, was reiterated and it was observed that the

appropriateness of the “balancing test” of balancing the

aggravating and mitigating circumstances, the aggravating

circumstances being the circumstances of the crime, and the

mitigating circumstances being the circumstances of the

criminal needed to be reconsidered, as these distinct and

unrelated factors could not be put on the same scale. Hon'ble

K.S.P. Radhakrishnan J in his opinion in Shankar Kisanrao

Khade noted that even where the aggravating circumstances

were extremely grave, only if the mitigating circumstances

relating to the accused were zero percent, i.e. there was

complete absence of any circumstance favourable to the

accused with regard to his personal antecedents, could the

case be considered one where the death penalty might be

justified. Even then it needed to be considered whether it was

the rarest of rare case where only a death penalty was

appropriate. In Shankar Kisanrao, the 52 year old appellant

had enticed a 12 year old moderately intellectually challenged

girl living with her grandmother, and then repeatedly

sodomized and raped her before strangulating her. However as

the appellant had only been earlier implicated for the murder

of his wife and also in a case under section 380/ 457 IPC, but

was not convicted in those cases, hence the Apex Court

35

considered the High Court allegation against the appellant of

having criminal antecedents not to have been established, and

the case in hand was therefore not considered the rarest of

rare cases for award of the death penalty. Justice

Radhakrishnan in paragraphs 37,38 and 39 of the law report

specifically faulted the judgements in Mohd. Mannan, Rajendra

Prahladrao Vasnik and Shivaji for applying the “balancing test.”

In his separate opinion Justice Madan B. Lokur has

observed in paragraph 123 of the law report, that the

possibility of reform or rehabilitation of the appellant was not

ruled out by any expert evidence in Mohd. Mannan, and in

Shivaji, unlike some other cases the conviction being based

only on circumstantial evidence was not held to be a mitigating

factor.

In the aforesaid background we are of the opinion that

this is not the rarest of rare cases, where the special reasons

exist for only awarding the death penalty and where the other

option of awarding a sentence of imprisonment for life is

unquestionably foreclosed.

In Shankar Kisanrao Khade the Apex Court had directed

that the life sentence (after commutation of the death penalty)

for murder and the life sentence for rape and the sentences

under other provisions run consecutively and not concurrently.

However, we see some difficulties in making the sentences run

consecutively and not concurrently, as under section

386(b)(iii) Cr.P.C. it is clarified that whereas in an appeal from

conviction, the nature and extent of the sentence may be

altered, “but not so as to enhance the same.”

In another similar case of rape and murder of an eighteen

year old girl, by a young painter working in the house, who

36

was suddenly overwhelmed by a sense of lust, and who after

committing the murder tried to conceal the corpse in a trunk in

the house, this Court in Sanjay Kumar v State of U.P., (2012)

77 ACC 65 after relying on the decisions in Ramraj v State of

Chattisgarh, (2010) 1 SCC 573, Mulla v State of U.P, (2010) 3

SCC 508, and Rameshbhai Chandubhai Rathod (2) v State of

Gujarat (2011) 2 SCC 764, had commuted the sentence of

death, to a sentence of imprisonment for life for the remainder

of the appellant's life subject to the clemency powers of the

President or Governor under Articles 72 or 161 or the State's

powers of remission under the relevant statute. In an appeal

preferred against the said judgment in State of U.P. v Sanjay

Kumar, reported in (2012) 8 ACC 537, the Apex Court after

reviewing the case law on the point, had regarded this

approach of the High Court as finding an appropriate via

media, for situations where the Court may be loath to impose a

sentence of death for any extenuating circumstances, and yet

may feel that the routine sentence for life which in practice

works out to a sentence of 14 years or 20 years in view of

guidelines framed by the State was grossly inadequate or

disproportionately small. For such offences, the sentencing or

the Appellate Court for proportionate sentencing whilst doing

away with the death sentence in a particular case, could

impose a sentence even extending for the prisoner's entire

remaining natural life, or for a fixed term over and above the

mandatory 14 years actual jail term under section 433 A

Cr.P.C, subject to the State retaining its powers of exercise of

clemency or for granting remission, in a bona fide and non-

arbitrary and objective manner.

On these considerations we are of the view that the

37

judgement of the trial judge convicting the appellant as above

be upheld. However the death sentence awarded to the

appellant under section 302 IPC is commuted to a sentence of

imprisonment for life, which is to run for the remainder of the

appellant's natural life, subject to a bona fide exercise of the

clemency powers of the President or Governor or the powers of

remission of the State under the appropriate statutory

provisions. The remaining sentences awarded by the trial Court

are upheld. The Reference for confirming the death sentence is

rejected.

Appeal partly allowed.

Date: 28. 11.2013

Ishrat/as