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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1110-1111 OF 2015

Dattatraya @ Datta Ambo Rokade …Appellant

VERSUS

The State of Maharashtra …Respondent

J U D G M E N T

INDIRA BANERJEE, J.

1. These appeals are against the final judgment and order dated

21/24/25-3-2014 of the High Court of Judicature at Bombay in

Criminal Appeal No. 1202 of 2013/Criminal Confirmation Case No.6

of 2013 whereby the High Court has confirmed the conviction of the

appellant under Sections 302, 376(2)(f), 377, 363, 364, 367 and

201 of the Indian Penal Code, as also under Sections 3, 4, 5(i) (l)

and (m) of the Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as ‘POCSO’) and, inter alia, affirmed

the sentence of death imposed on the appellant.

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2. The facts giving rise to these appeals are abhorrent. The

Complainant and his wife being the second Prosecution Witness

(PW) resided at Room No.3 in the ground floor of Om Sai building,

near the Shivsena Office in Koparigaon, with their son aged 10

years and two daughters aged 7 years and 5 years respectively.

3. It is the case of the complainant that he and his wife (PW 2),

used to go to work, leaving the three children at home. On

22.1.2013, PW 2 had to go to her paternal home to visit her father.

When PW 2 returned home around 2.00 p.m. she found that her

youngest daughter, being the victim, was not at home. Assuming

that the victim might be playing somewhere nearby, PW 2 left for

work at around 2.15 p.m. At around 4.30 to 5.00 p.m. PW 2

received a call on her mobile phone from one Avaghade Mama,

informing her that the victim was not at home. PW 2 thereafter

returned home, and started searching for the victim. She contacted

the complainant as also her own parents on mobile.

4. Thereafter the complainant, PW 2, her mother and brother all

started looking for the victim in Koparigaon, Vashi and Sanpada

areas. As the victim could not be found, a missing report was

lodged with the APMC Police Station.

5. When the complainant and his wife (PW 2) reached home at

around 2.30 a.m. after frantic efforts to trace the victim, they found

the victim lying nude and still in front of the door of their tenement,

with no movement.

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6. The complainant contacted the police from his mobile and

told the police that his daughter (the victim) had been found lying

still, without any movement. The complainant and PW 2 took the

victim to the Navi Mumbai Municipal Corporation Hospital, where

the Medical Officer examined the victim and declared her ‘brought

dead’.

7. In the hospital the complainant noticed injuries on the body of

victim. There was redness on both shoulders and both thighs of

the victim, and laceration in the vagina and anus of the victim.

Accompanied by the Inspector of APMC Police Station, who had

come to the hospital for investigation, the complainant went to the

APMC Police Station and lodged a First Information Report, on the

basis of which Crime No.120/2013 was registered by the APMC

Police Station.

8. An inquest of the body of the victim was conducted and

photographs of the body were taken. There were injuries. The

vagina and the anus of the deceased victim was lacerated and

blood was oozing out. On 23.1.2013, Dr. Bhushan Jain, assisted by

Dr. Prerna Thakur, conducted post mortem examination of the

deceased victim. Dr. Bhushan Jain also noticed injuries on the

private part, anus, below the eye lid and above the upper lip. He

collected the blood of the deceased victim for DNA mapping and

grouping and also collected her vaginal and anal swab for detection

of sperms. The samples were kept for chemical analysis.

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9. Dr. Bhushan Jain who prepared the post mortem report

(Exhibit 48) opined that the cause of death of the victim was

asphyxia due to smothering, associated with head injuries and

sexual assault. Dr. Bhusan Jain deposed that all the five injuries

were possible by repeated sexual acts and forceful penetration. He

opined that all these injuries were sufficient to cause instant death

in the ordinary course.

10.In the meanwhile, on 23.1.2013 investigation commenced.

PW 26 was the Investigating Officer. on 23.1.2013 at about 7.15

p.m., Panchnama (Ex.30) of the place where the deceased victim

was found, was recorded in the presence of one Parashuram

Mahadu Thakur, who deposed as the tenth prosecution witness (PW

10). A plastic bag of Surf Excel with plastic and two pieces of CDs

were found on the spot. These were separately seized and packed

and sealed under Panchnama (Ex.30).

11.The accused-appellant along with his wife Asha (PW 18) two

sons Rupesh and Mahendra (PW 19), two daughters, Manisha and

Nisha (PW 20) and a grandson Omkar used to reside in Room No. 8

of the same building, adjacent to the tenement of the complainant.

12.The accused-appellant had been unemployed for four years,

and sat idle at home.Omkar the grandson of the accused-

appellant used to be at school from 12.00 noon to 6.00 p.m. All

other family members of the accused-appellant used to leave for

work during the day. The accused-appellant used to stay at home

alone.

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13.It is the case of the prosecution that on 22.01.2013, in the

afternoon, the accused-appellant took the victim to his house,

raped her, had unnatural sexual intercourse with her causing her

head injury and smothering her, as a result of which she died. On

the same night at around 2.00 a.m., the accused-appellant had

gone outside the house and on 23.01.2013, the accused-appellant

went to the house of his brother at Kamothe without informing his

wife, Asha (PW 18). On 24.01.2013 at about 07.30 p.m., PW 18 i.e.,

wife of the accused-appellant found the accused-appellant was in

tension and asked him to go to their family doctor.

14.On 24.01.2013 at about 7.30/8.00 p.m., PW 7 being the

Family Doctor, examined the accused-appellant and found that the

accused-appellant was tensed and his blood pressure was high. The

Head Constable, Gejage, (PW 15) who had been making inquiries

from the residents of Om Sai Building, had left his mobile number

with the residents of the building including Mahendra (PW 19), the

son of the accused-appellant so that they could contact him if they

got any information with regard to the incident.

15.It was the case of the prosecution that the accused-appellant

used to force himself on his wife and have sexual intercourse with

her without her consent two to four times a week. Furthermore, in

2004, when the accused-appellant and his family members were

residing at Village Dudhanoli, the accused-appellant had outraged

the modesty of a lady, Suvarna (PW 6) while she was attending to

the call of nature. It is alleged that the accused-appellant was

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assaulted by villagers because of the aforesaid incident. The

accused-appellant and his entire family, therefore, had to leave

Village Dudhanoli forever.

16.The prosecution has alleged that considering the antecedents

of the accused-appellant and his conduct after the incident, PW 19

suspected that the accused-appellant might be the culprit who had

committed the ghastly crime.

17.On 24.01.2013, PW 19 contacted the Head Constable, Gejage

(PW 15) and told him that he suspected the accused-appellant of

being guilty. Thereafter, on the night of 24.01.2013, the said Head

Constable, Gejage, (PW 15) and Senior Police Inspector, Kambale

took the accused-appellant to the office of Crime Branch for inquiry.

On 25.01.2013, the accused-appellant was arrested and the clothes

on his person, i.e, blue coloured full pants, Bermuda pants and a

yellow shirt were seized under panchnama, which is marked Ex.

(Exhibit) 28. On 25.01.2013, the Investigating Officer, Police

Inspector, Bhong, being the 26

th

Prosecution Witness (PW 26), went

to the house of the accused-appellant along with a team from

Forensic Science Laboratory and searched the house in the

presence of panchas, the Forensic Laboratory team and daughter

of the accused-appellant, Nisha (PW 20).

18.Three cushion covers from the Sofa, a cloth for cleaning the

floor and a sari used as a bed-sheet, all stained with blood, were

seized. On 25.01.2013 itself, the accused-appellant was examined

by Dr. Tambe (PW 8), who found that the accused-appellant was in

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sound physical and mental condition. On 26.01.2013, the accused-

appellant made a statement in the presence of Panchas on the

basis of which which blood stained white coloured plastic gunny

bag, blood stained orange coloured shirt and black pants of the

deceased were recovered from the debris near Om Sai Building.

19.The complainant and his wife being the parents of the victim,

identified her clothes. It is alleged that on 27.01.2013, Vinod and

Sanjay being the 4

th

and 5

th

Prosecution Witnesses approached the

Investigating Officer, Bhong (PW 26) and told him that on

22.01.2013, they had a meeting in the office of 10

th

Prosecution

Witness (PW 10), Parshuram, which was situated in a building

about 15 feet away from Om Sai Building. These witnesses told the

police that after they came out of the office at about 4.30 p.m they

were standing under a parking shed and talking. At that time, they

saw a short old man carrying a white bag coming from the side of

the staircase and going into a lane. The man kept the bag in the

lane which was in front of the parking shed.

20.PW 4 and PW 5 identified the accused-appellant, as the same

person, who had kept the bag in the lane, in a test identification

parade conducted by the Executive Magistrate, Ratnanjali (PW 21).

This very bag was recovered at the instance of the accused-

appellant under Panchnama and packed in a packet (Ex.35 and

Ex.36). Both PW 4 and PW 5 identified the bag as the same bag

which had been carried by the accused-appellant and dumped in

the lane.

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21.It is stated that on 29.01.2013, the accused-appellant was

produced before Dr. Thakur, the Casualty Medical Officer in Navi

Mumbai Municipal Corporation Hospital (PW 16). Dr. Thakur

collected blood of the accused-appellant in two plastic containers

provided by the Forensic Science Laboratory, sealed the packet

containing the plastic containers, filled in the identification form,

attested the photograph of the accused-appellant and obtained

thumb impression of the accused-appellant on identification form

22.The clothes of the accused-appellant, the white plastic bag,

the clothes of the deceased, sealed bottle containing blood of the

accused-appellant and his semen, hair and nail were sent to the

Forensic Science Laboratory. The blood, hair, nail, vaginal swab and

anal swab of the victim were also sent to the Forensic Science

Laboratory. The reports received by the Investigating Officer,

Bhong (PW 26) from the Forensic Science Laboratory showed that

D.N.A. profile of blood detected on the plastic bag, orange shirt of

the deceased and sari cum bed-sheet seized from the house of the

accused-appellant was identical with D.N.A. profile of the deceased

victim. The reports also showed that D.N.A. profile test of semen

conducted on underwear (Bermuda pants) of the accused-appellant,

and the vaginal swab and anal swab of the victim matched the

D.N.A. profile of the accused-appellant.

23. Charges were framed against the accused-appellant under

Sections 363, 364, 367, 377, 302, 201 and 376 or alternatively

376(2)(f) of the Indian Penal Code. Charges were also framed under

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Sections 3, 4 and 5 of the Prevention of Children from Sexual

Offences Act (hereinafter referred to as ‘POCSO). The accused-

appellant pleaded not guilty and claimed to be tried. His defence

was of denial and false implication.

24.The prosecution examined 27 witnesses. No witnesses were

examined on behalf of the accused-appellant. Shorn of

unnecessary details, the first prosecution witness, being the

complainant (PW 1), deposed that when he returned home at

around 3.20 a.m. on 23.1.2013, after frantically searching for his

daughter, he found his daughter lying naked in front of the door of

his house. She was still and there was no movement. He informed

the police. The victim was taken to Navi Mumbai Corporation

Hospital where she was declared dead. PW 1 described the injuries

on the victim i.e. redness on both shoulders and both thighs. He

said there was blood in the private part of the victim and there was

a laceration in the vagina. The anus was swollen. He identified the

complaint and stated that its contents were correct. PW-1 identified

the following articles: -

a. A sealed packet which contained a black thread worn by the

victim (Marked as Articles 1 and 1A).

b. A sealed packet containing a plastic bag of surf excel powder

of 1.5 kg (Marked as Article 2 and 2A).

c. A packet containing two pieces of CD (Marked as Articles 3

and 3A.

d. One sealed packet containing an orange coloured shirt, which

he identified as shirt of the victim. (Marked as Articles 25 and

25A)

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e. Another sealed packet containing black half pants which the

witness identified as pants of the victim. (Marked as Articles

24 and 24A)

25.PW-1 deposed that his daughter, the victim, had been raped

and murdered. In his cross-examination, he admitted that he had in

course of his examination expressed suspicion against one Arun

Pawar. Records reveal that the said Arun Pawar, a worker of the

Shiv Sena Party had been arrested, but later released and charges

against him dropped after investigation.

26.The 2

nd

Prosecution Witness (PW 2) , being the wife of the

complainant, and mother of the victim, in essence, reiterated what

her husband had said. She also identified the black thread and the

clothes worn by the victim. She also reiterated that initially she

and her husband being the complainant had suspected that Arun

Pawar was the culprit. She, however, denied that there had been

any compromise between the complainant and his wife (PW 2) and

the said Arun Pawar.

27.The 3

rd

Prosecution Witness (PW 3) is a pancha, who

signed on a panchnama at the hospital. She only put her signature

on the packets containing the thread and the clothes of the victim.

She also described the injuries on the victim. None of the first

three witnesses have said anything to even suggest who could be

the culprit.

28.The 4

th

Prosecution Witness (PW 4) who claims to run a

construction business, stated that he had business dealings with

persons residing at Koprigaon. On 22.1.2013 he had gone to meet

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Parshuram Thakur at the Shiv Sena Office at Koprigaon. His friends

Sanjay Govari and Devidas Dalavi, a resident of Airoli were also

there at the office. This witness deposed that after coming out of

the Shiv Sena Office, he, Sanjay Govari and Devidas Dalavi were

standing below a shed in front of a building near the said Office.

While they were standing below the shed, they saw an old man

come from the side of the staircase, holding a white bag, which he

kept in the lane which was in front of the parking shed. The old

man was short and except for Bermuda pants that he had been

wearing, he was bare bodied. According to this witness, he along

with Devidas Dalavi and Sanjay Govari once again went to the office

of Parshuram Thakur after a few days, when Parshuram Thakur told

them about the rape and murder of a girl in a building in front of his

office, which had taken place on 22.1.2013.

29.This witness stated that on hearing of the incident, he told

Parshuram Thakur that on 22.1.2013 that he had seen an old man

going into the lane in front of the shed under which they were

standing, with a bag. Parshuram Thakur then told this witness to

inform this to the police. On 27.1.2013, this witness along with

Sanjay Govari who has also deposed as the fifth witness, went to

the police station, met the police officer and disclosed what he had

seen, which was recorded by the police.

30.Thereafter on 7.2.2013, this witness received a letter

informing him that he should meet the Tehsildar. On 8.2.2013, this

witness along with Sanjay Govari and Devidas Dalavi went to the

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Tehsildar, and thereafter, along with another lady, went to Taloja jail

where he identified the accused-appellant as the person who had

kept the bag in the lane.

31.This witness identified a white colour plastic bag taken out

from a bag, marked Articles 23 A and 23. He also identified the

Bermuda pants as the same pants worn by the accused-appellant.

In cross-examination, he said that the old man with the bag did not

arouse his suspicion. If his suspicion had been aroused, he would

have gone to the police station the same day.

32.The 5

th

Prosecution Witness Sanjay Kamlakar Govari

(PW 5) reiterated what had been stated by PW 4. He also

identified the plastic bag as the same one which had been dumped

in the lane by the accused-appellant. He read out the description

printed in the inner side of the plastic bag “crystal white sugar

sulphiton Jawahar sugar hupari Kolhapur (Maharashtra State) India

S-30 sucrose 50 kgs. 2009-2010 best before 3 years”. In cross

examination this witness stated that he had not seen any

identification mark on the white bag on that day and he also stated

that when he saw the white bag, he did not have any suspicion. He

reiterated that he had seen the old man dropping the white plastic

bag in the lane.

33.The 6

th

Prosecution Witness (PW 6) , a teacher and a

resident of Dudhanoli, Taluka Murbad, District Thane deposed that

the accused-appellant had tried to outrage her modesty when she

had gone to relieve herself in the open field in the year 1998 i.e.

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about 15 years before the present incident. She said that she and

her husband had beaten up the accused-appellant and that night,

the accused-appellant left the village permanently. The aforesaid

incident has no connection with the rape and murder of the victim.

In cross examination she admitted that she had not lodged any

complaint against the accused-appellant.

34.The 7

th

Prosecution Witness (PW 7) , a Homeopathic

Doctor, deposed that on 24.1.2013 at about 7 p.m. the accused-

appellant had visited her complaining of uneasiness. She said she

noticed that the accused-appellant was suffering from tension and

his blood pressure was slightly high. She thought that the accused-

appellant might be suffering from acidity and accordingly

prescribed medicines. The evidence of this witness does not by any

stretch of imagination, establish the guilt of the accused-appellant

for the offence alleged.

35.The 8

th

Prosecution Witness (PW 8) an Associate Professor

in Terana Medical College, Surgery Department deposed that on 25

th

January, 2013 he was on call duty at Navi Mumbai Municipal

Corporation General Hospital. On that day he examined the

accused-appellant who had been brought by the police. On

examination, the accused-appellant appeared to be in sound

physical and mental condition. On examination of private part that

is genital, no external injury was found but “bilateral scrotal

enlargement was seen”. Apart from that there was no external

injury. Genital size was normal. There was no external deformity in

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genital. Testicular reflex was normal. Penis was uncircumcised,

Smegma was absent. There were no signs of sexually transmitted

disease. There were no Injuries on glans penis.

36.This witness deposed that glance and sulcus was washed and

washed material was collected in a glass bulb for examination.

Blood was collected for blood grouping and examination. Samples

of pubic hair and scalp hair were also collected. There was nothing

to suggest that the patient was impotent. However, the witness

volunteered that on physical examination it was not possible to

draw 100% conclusion about potency. The evidence of this witness

also does not contain anything material, that points to the guilt of

the accused-appellant , for the offence alleged.

37.The 9

th

Prosecution Witness (PW 9), a driver by

occupation, is the Panch for the yellow shirt, blue pants and blue

Bermudas under the pants of the accused-appellant which had

been seized by the police. His evidence reveals that these clothes

were found on the body of the accused-appellant on 25

th

January,

2013 at about 1.45 P.M., that is, almost 48 hours after the incident.

38.The 10

th

Prosecution Witness (PW 10) , Parshuram

Mahadu Thakur, a Builder in the business of construction, owned an

apartment in a building in the ground floor of which there was a

Shivsena office. He said that on 23

rd

January, 2013 at about 7.15

a.m., police officer Dighe called him near Om Sai Niwas. PW 10

stated that he had shown the police officer the spot where the dead

body of the victim had been found. By that time, the dead body

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had been removed. He also deposed that at the spot, a bag of Surf

Excel and two pieces of CDs were found. On the bag of Surf Excel

there were some blood stains. The bag of surf excel and pieces of

CDs were separately packed by the police. The police recorded

spot panchnama. PW-10 identified his signature in the panchnama

and deposed its contents were correct.

39.This witness deposed that PW Nos. 4, 5 and an agent Dalavi,

used to come to his office during the period between 19

th

January,

2013 and 22

nd

January, 2013. On 22

nd

January, 2013, they had

come to his office at around 2/2.30 P.M. and they were there in his

office till 4.30 p.m.

40.This witness said that on 26

th

January, 2013 the aforesaid

persons again came to his office for discussion in relation to a plot.

While talking to them, this witness told them that on 22

nd

January,

2013 there had been rape and murder of a five year old girl. The

police were inspecting a bag. On hearing this, PWs 4 and 5 and

Dalavi mentioned that they had seen a man who seemed

frightened, drop a bag. This witness deposed that he had advised

the aforesaid persons to go and inform the police. Thereafter, the

three persons left.

41.This witness stated that, on 27

th

January, 2013 he was called

by A.P.M.C. police station and his statement was recorded. This

witness also deposed that he knew the accused-appellant, who had

been residing in Room No.8 of Om Sai Niwas building as a tenant.

The family members of the victim were residing in Room No. 3 in

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the same building. The tenement of the accused-appellant and as

well as the deceased victim are in the ground floor of Om Sai Niwas

building.

42.Significantly there are inconsistencies between the statement

of this witness and the statements made by PW 4 and PW 5, who

did not say that the man dropping the bag seemed frightened. On

the other hand they said that the man did not arouse their

suspicion.

43.The 11

th

Prosecution Witness (PW 11) , Arvind Madhavji

Gajara is the Panch in whose presence, the tenement of the

accused-appellant was searched. He deposed that on 25

th

January,

2013 he had gone to Koparigaon in connection with his business.

He saw that many persons had gathered near the Om Sai building.

It was about 5.00 p.m. The police constable Rane called this

witness. At that time the accused-appellant, a photographer and a

panch by the name of Patil were was also present. At the request of

the police he agreed to act and acted as Panch. The police took

him to room No.8 of Om Sai apartment. A police officer rang the bell

at the door. It was opened by a lady, who said that her name was

Nisha. The police officer told Nisha that they wanted to search the

house and asked whether she had any objection. Nisha replied that

she had no objection.

44.This witness said there was one room which was partitioned

and there was a kitchen. There was a sofa on which a bed sheet

was lying. They noticed blood stains on the bedsheet. There were

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also blood stains below the sofa set.

45.This witness deposed that one of the persons in the search

team scratched the blood stains to collect the dried blood. In the

presence of this witness, the blood stained sheet on the sofa set, a

cloth for cleaning the floor tiles lying on the window, a saree used

on the bed as a bed sheet were also packed. In all six articles were

seized and six labels were prepared. A bag in which the articles

were packed was separately marked. The evidence of this witness

only establishes that the tenement of the accused-appellant was

searched with the consent of the accused-appellant’s daughter and

some articles seized. During the search blood stains were noticed,

which were scraped for examination.

46.The 12

th

Prosecution Witness (PW 12) , named Mustaqali

Asgarali Ansari, a Carpenter by profession stated that on 26

th

January, 2013, he went to fill petrol in his motor-cycle at a petrol

pump near APMC police station at about 3.00 p.m. At that time, a

police constable, by name Mandole, called him and told him to

come to APMC Police Station. He went to the APMC police station

along with the constable. In the police station, one police officer by

name Bhong and another panch More, one lady police and three

police constables were present. The accused-appellant, whom this

witness identified in Court, was also present in the police station.

47.According to PW 12, in the police station, the accused

appellant made a statement that he had kept the dead body of the

girl in a bag and kept the said bag behind the staircase.

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48.PW 12 deposed that the accused-appellant was taken to the

building and from inside he took out clothes from the white bag,

the capacity of which might be 50 to 60 kgs. He identified the

clothes namely the black half pants and an orange shirt. PW 12

deposed that the clothes were taken out from the bag.

49.Significantly even though this witness (PW12) was a panch to

the seizure of the white bag, the printing inside the bag which the

PW claims to have seen, were not noticed by him.

50.The 13

th

Prosecution Witness Dr. Bhushan Vilasrao Jain

(PW 13) conducted the post mortem examination on the body of

the victim. He noticed the following injuries:

“(1) Lacerated wound seen over posterior vaginal

wall with width 0.5 c.m. muscle deem hymen torn at

6 O’ clock position reddish blood oozes out.

(2)Lacerated wound over right lateral vaginal wall

1 x 0.2 c.m. muscle deep reddish, blood oozes out.

(3)Two lacerated wounds seen over anal region at

12 O’clock and 3 O’clock position of size 2 x 1 c.m.

mucosa deep and 1 x 0.5 c.m. mucosa deep

respectively reddish.

(4)Two tiny abrasions seen over left maxillary

region below eyelid laterally 0.5 x 0.3 c.m. each

reddish.

(5)Aberated contusion over upper lip mucosal

aspect in a middle region 2.5 x 1.5.”

51.He deposed that all the injuries were ante-mortem in nature

and he further deposed of internal examination.

“2. On internal examination I noticed haemorrhage under

scalp over occipital region 5 x 3 c.m. reddish and

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meninges were congested. Brain matter congested and

-oedmatous. On cut section petechial haemorrhages

seen over white matter. Both lungs were congested and

oedematous with petechial haemorrhages.

3. Thoracic cavity contained dark fluid blood. Stomach

contained 200 cc. semi digested rice, dal sabu like food

material.

All visceral organs were congested.”

52.This witness deposed that they kept blood for DNA mapping.

Blood for grouping, nail clipping of both hands and plucked scalp

hair for grouping and detection of foreign body. They also kept

vaginal and anal swab for detection of sperms as also blood for

chemical analysis. He opined that the cause of death is asphyxial

death due to smothering associated with head injury and sexual

assault.

53.This witness deposed that the injuries mentioned in column

17 of the postmortem report were possible by repeated sexual acts

and forcible penetration of the penis in the vagina. The victim may

have suffered some of the injuries while she was trying to rescue

herself from the clutches of the culprit. The injuries referred to as

injury Nos. 4 and 5 in the postmortem report may have been

caused by the culprit by pressing the mouth of the victim with his

hands. The injury described in the Report as injury No.4 may have

been caused by finger nails.

54.This witness deposed that the injury shown in the postmortem

report as injury No.19 over the head and under the scalp could have

been suffered if the head had hit any hard object while the act of

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rape was committed.

55.PW-13 deposed that the injuries shown as injury Nos. 1 to 5

were sufficient to cause instant death. The injuries shown as injury

Nos. 4 and 5 could also cause death. The Cyanosis in finger nails,

petechial over brain and lungs and dark fluid blood were cardinal

signs of asphyxia.

56.In cross-examination, PW 13 said that there was no injury to

the brain substance. However, death was possible by reason of the

injuries that were seen. He, however, said in his cross-examination

that there was hemorrhage. This witness deposed that pressing of

mouth and nostril causes smothering which leads to asphyxia and

consequential death. In cross-examination, this witness said that

he had not taken blood sample of accused-appellant for the purpose

of DNA as blood sample was not produced before him. The

evidence of this witness clearly establishes that the victim was

raped and killed. There is nothing in his evidence that implicates

the accused-appellant .

57 The 14

th

Prosecution Witness (PW 14) , a neighbour of the

complainant and the accused-appellant deposed that the accused-

appellant had two daughters, two sons and one grand son, none of

whom stayed at home between 12 and 6 p.m. She deposed that the

accused-appellant used to stare at her by opening the door slightly

or by looking into the mirror and when she told this to another

neighbour, that neighbour told her that the accused-appellant was

in the habit of staring at women. She said that she did not say

21

anything to the accused-appellant, considering his old age. In cross

examination, this witness deposed that the accused-appellant did

not whistle at women nor did he tease the women of the building.

He used to keep his door open and look into a mirror. Her evidence

in cross-examination reveals that the accused-appellant was

arrested on 25

th

January, 2013 and on 26

th

January, 2013, one Arun

Pawar was arrested. This witness’s evidence, at best raises doubts

about the character of the accused-appellant.

58.The 15

th

Prosecution Witness (PW 15) a Head Constable

of the Crime Branch deposed that the Senior Police Inspector called

him and his colleagues for the purpose of investigation in relation to

the murder of the victim. He deposed that he reached Koparigaon

on 23

rd

January, 2013. He visited each room in Om Sai Building and

interrogated the residents. He had also given his mobile number to

the residents so that he could be contacted in case any information

was forthcoming.

59.This witness deposed that on 24

th

January, 2013, PW 19

Mahendra Rokade, son of the accused-appellant called him up and

told him that he was suspecting the involvement of his father, the

accused-appellant, in the rape and murder of the victim.

60.The PW-19 allegedly told this constable that on the night of

22

nd

January, 2013 his father was stressed up. He also said that on

an earlier occasion his father had tried to outrage the modesty of a

woman at his native place Dudhanoli. This witness further stated

that on the night of 24

th

January, 2013 this witness and another

22

police constable alongwith senior police inspector went to the Om

Sai Building on receiving secret information that the accused-

appellant had come home. According to this witness the wife,

daughters and grandson of the accused-appellant and the accused-

appellant were at home at that time. The accused-appellant was

found in stress. The wife of the accused-appellant said that the

accused-appellant had outraged the modesty of a woman at

Dudhanoli. The accused-appellant was taken to the office of the

crime branch. On 25

th

January, 2013, the accused-appellant

confessed that he had committed the crime. From the evidence of

the witness it can only be deduced that PW-19 had called him up

and expressed suspicion of involvement of the his father in the rape

and murder of the victim.

61.The 16

th

Prosecution Witness (PW 16) , Dr. Prerana Anant

Thakur deposed that she had personally collected the blood of

accused-appellant and handed over the sealed container along with

the prescribed identification form which she had filled in herself, to

the police. She handed over the prescribed form and sealed packet

containing blood sample to police Naik B. No.1761 who took that

sample to Kalina Forensic Science Laboratory.

62.The 17

th

Prosecution Witness (PW 17) , the owner of a

photo studio named Balaji Photo Studio deposed that he went along

with the police to take photographs of Room No.8 of Om Sai Niwas.

On 25

th

January 2013, he took photographs of the sofa and pillow

lying on the sofa on which there were blood stains. He took

23

photographs of the bed and the floor under the sofa where there

were blood stains. His camera was a digital camera. He got the

photographs printed and he handed over the photographs along

with memory card to the Investigating officer of the police station.

He said that he was paid Rs.350/- for the photographs. The PW-16

and PW 17 have also not implicated the accused-appellant.

63.The 18

th

Prosecution Witness (PW 18) , Asha Dattatraya

Rokade, wife of the accused-appellant said that she was residing in

Room No.8 of Om Sai Building along with the accused-appellant,

their two sons, two daughters and a grand son (son of younger

daughter, whose husband had expired). She deposed that the

accused-appellant was unemployed and stayed at home alone,

while the other members of the family went out to work and the

grand child went to school. She said that on 22

nd

January, 2013

when she came back from work at around 7.30 p.m. she heard that

the victim was missing. She had dinner at about 1.00 a.m. after all

the family members returned, after which they went to sleep. She

deposed that after 2.00 a.m., her husband went out of the house.

On 23

rd

January, 2013 at about 7.00 a.m. police knocked at the door

of the house and inquired about the victim. On 23

rd

January, 2013

she left for work. When she left, her husband i.e., the accused-

appellant and their daughter Nisha (PW 20) were at home but when

she came back home at about 7.30 p.m. she did not find her

husband. On inquiry, her daughter Nisha (PW 20) told her that the

accused-appellant had gone to his brother’s house. She further

24

deposed that on 23

rd

January, 2013 she had dinner and went to

sleep. On 24

th

January, 2013 when she went out to work her

husband i.e. the accused-appellant came back. After returning at

about 7.30 p.m., she made tea and served tea to the accused-

appellant. While serving tea she asked the accused-appellant why

he was tensed up. He replied that he was not feeling well.

Thereafter she told him to go to hospital. The accused-appellant

went to Dr. Nilima Pawar.

64.This witness deposed that after her husband, the accused-

appellant came back from the doctor, he told her that he had raped

and killed the victim. Thereafter at about 8.00 p.m. police took the

accused-appellant for inquiry. On 25

th

January, 2013, she was

informed by her son Mahendra that police had arrested her

husband. He said that the accused-appellant had confessed to the

crime before the police. The evidence of this witness is of

importance since she has deposed that the accused-appellant

confessed to her that he had raped and killed the victim.

65.Nothing much of substance has transpired from the evidence

of the 19

th

Prosecution Witness (PW 19) , Mahendra, son of the

accused-appellant, except that he had called up the police and

informed the police that he suspected the involvement of his father,

the accused-appellant, in the rape and murder of the victim.

66.This witness reiterated the work schedule of the members of

the family and school hours of his nephew. He said that he had

heard that the victim had gone missing and had later heard that the

25

victim had been raped and murdered. The police came to the

building to make inquiries. This witness further deposed that when

he had heard that his father had suddenly gone to Kamothe he

became suspicious, in view of the past history of his father involving

an incident at Dudhanoli village. He further said that on 25

th

January, 2013, the police contacted him and informed him that his

father had confessed to the crime. He also identified the articles

seized as Articles Nos.18-A, 19-A and 20-A. In cross examination,

this deponent deposed that on 23

rd

January, 2013 he was sleeping

on the bed of the inner room having partition. At that time he did

not find or see any stain on the bedsheet. The bedsheet used to be

changed every 4 or 5 days and covers of sofa set and cushion after

every two to three months. He also deposed that the flooring of the

house is washed and cleaned daily.

67.The 20

th

Prosecution Witness (PW 20) , Nisha, daughter of

the accused-appellant deposed that on 25

th

January, 2013, in the

evening, police came to their house with experts from the Forensic

Laboratory and a photographer. After taking her permission, the

police seized sofa cover, cushion cover, bedsheet and duster cloth.

The expert found blood stains in the gap between the tiles on the

floor and on the sofa cover. The sofa cover, cushion cover and

bedsheet were stained with blood. All these articles were seized

and the police obtained her signature and the signature of her

father. She identified the sofaset cover, cushion cover, bed sheet

and the duster cloth for cleaning the floor. She also identified the

26

Bermudas of her father. She stated that when she was a young

child she came to know that her father had caught the hand of a

woman and therefore, the family had to leave the village Dudhanoli.

In cross examination, this witness said that her father never spoke

to her unnecessarily. She said that she cleans utensils and cleans

floor on every alternate day. She said that she had not noticed

anything abnormal on sofa, cushion or on the bed. Nothing

significant has transpired from the evidence of this witness except

that the tenement of the accused-appellant had been searched in

the presence of forensic experts and a photographer. Photographs

of the tenement were taken, some articles seized and samples of

blood scrapings collected for examination.

68.The 21

st

Prosecution Witness (PW 21), Ratnanjali

Ravindra Sarnobat, deposed that he had conducted the Test

Identification Parade (TIP) and the witnesses Bhagat, Govari and

Dalavi (PW-4 & PW-5) had identified the accused-appellant.

69.The 22

nd

Prosecution Witness (PW 22) , the Sub-Inspector

of police at AMFC police station deposed that on 22

nd

January, 2013

he was on night duty from 9.00 p.m. onwards till 9.00 a.m. At about

9.15 a.m. the complainant and his wife gave a missing complaint in

respect of the victim. At about 2.30 a.m. when he was patrolling out

of the police station, he received a telephone call from the APMC

police station that the missing girl had been found but with no

movement. She was being taken to the Vashi Navi Mumbai

Municipal Corporation Hospital (NMMC). The doctor declared the girl

27

was dead after which the complainant filed an FIR. There is nothing

in the deposition of this witness which establishes or points at the

guilt of the accused-appellant. He only narrated the facts leading to

the missing report and the first information report, the condition of

the dead body of the victim, the seizure of articles taking of

photographs etc.

70.The 23

rd

Prosecution Witness (PW 23) deposed that he

had carried blood samples of accused-appellant to the Forensic

Science Laboratory, Kalina for DNA profiling along with

identification.

71.The 24

th

Prosecution Witness (PW 24) attached to APMC

police station as Police Naik deposed that he brought back the DNA

kit from the Forensic Science Laboratory, Kalina.

72.The 25

th

Prosecution Witness (PW 25) , is the Assistant

Investigating Officer in the case. She deposed that as Assistant

Police Inspector she had investigated the case. On 23

rd

January,

2013 at about 5.00 a.m. she visited the spot and started making

inquiries. She recorded the statement of the mother of the

deceased victim (PW 2).

73.On 26

th

January, 2013 she recorded the statements of some

witnesses and recorded the supplementary statement of the mother

of the deceased. She also recorded the statements of the wife of

the accused-appellant, two daughters of the accused-appellant and

other witnesses. Nothing significant, which points to the guilt of the

accused-appellant has transpired from the evidence of PW-23, PW-

28

24 and PW-25.

74.The 26

th

Prosecution Witness (PW 26) , the Senior Police

Inspector and Investigating Officer deposed that he reached Navi

Mumbai Municipal Corporation Hospital at about 3.00 a.m. after

which he took the complainant to the police station and recorded

the FIR. He deposed that on the basis of the FIR, Crime No.20 of

2013 was registered. PW-26 deposed that on 23

rd

January, 2013, he

sent Police Inspector Lavand to the spot and he recorded the spot

panchnama (Exh.30). He deposed that initially, the parents of the

victim had expressed suspicion against one Pawar who was taken in

custody. On investigation nothing was found against him and

accordingly report under Section 169 of the Criminal Procedure

Code was filed. On 24

th

January, 2013 this witness recorded the

statements of some witnesses. On 25

th

January, 2013, staff of the

crime branch produced the accused-appellant before this witness.

This witness interrogated the accused-appellant and arrested him

under panchnama. The clothes he was wearing at the time of his

arrest was seized under panchnama. The accused-appellant was

wearing blue full pants, Bermuda pants and a yellow shirt. This

witness further deposed that on 25

th

January, 2013 he called a team

from the Forensic Science Laboratory who seized six articles from

the house of the accused-appellant that is Article Nos.17-A, 18-A,

19-A, 20-A, and 21-A.

75.The seized articles were cushion covers, a cloth for cleaning

the floor, a saree used as a bed sheet which were sealed in six

29

packets. He deposed that experts from the Forensic Science

Laboratory collected dried blood from the floor tiles beneath the

sofa. The photographs of the sofa and other articles were taken at

the time of recording the spot panchnama. PW-26 further stated

that on 25

th

January, 2013 he got the accused-appellant medically

examined and he also recorded the statements of witnesses. On

26

th

January, 2013 the accused-appellant offered in the presence of

two panchas to show the place where he had put the clothes of the

victim in a bag, which was the debris was by the side of staircase of

the Om Sai Building. The statement of the accused-appellant was

recorded by this witness. The statement so recorded was signed by

Panchas and the accused-appellant affixed his thumb impression

thereon. After that the accused-appellant took the Investigating

Officer (PW 26) and others to the side of the staircase of the said

building where debris were lying and he took out a plastic bag in

which an orange shirt and black pants were found. The accused-

appellant told the Investigating Officer that the shirt and the pants

were the clothes of the victim. This witness deposed that the

parents of the victim were called and they identified the clothes of

the victim. There were blood stains on the shirt, pants and the

plastic bag. The articles were seized and sealed in the presence of

Panchas, whose signatures were obtained on the panchanama

recorded on the spot.

76.This witness deposed that on 27

th

January, 2013 three

witnesses Devidas, Vinod Bhagat and Govari came to the APMC

30

police station and got their statements recorded. Thereafter a test

identification parade was arranged. On 27

th

January, 2013 he

seized the memory card produced by the photographer Rajesh Joshi

(PW 17). From the evidence of this witness, it transpires that blood

samples collected for DNA profile were duly sent to the forensic

laboratory. This witness deposed that during the investigation, it

transpired that the accused-appellant had raped the victim and

murdered her. After completion of investigation, this witness filed

chargesheet.

77.The 27

th

Prosecution Witness (PW 27) , an Assistant

Chemical Analyzer in the Forensic Laboratory, Kalina deposed that

he went to APMC Police Station along with his team consisting of

four persons. The team went to Om Sai Building at Koparigaon.

The accused-appellant was also present along with the Police. In

the tenement of the accused-appellant there was one hall and

kitchen and in the said hall there was a partition. When the door

was opened they saw a sofa on the right. On careful inspection,

they found there were three cushions on the sofa and on the

cushion covers there were blood stains of the diameter 1 cm. to 2

cm. approximately. This witness deposed that he tested the blood

stains with the help of phenolphthalein and confirmed that the

stains were bloodstains. He deposed that three cushion covers

which were bloodstained were removed from the cushion and

handed over to the Investigating Officer. This witness deposed that

he saw that there were blood stains on the floor near the middle leg

31

of the sofa. He tested those stains with Phenolphthalein and

confirmed that they were blood stains. Dry blood was scraped and

collected with the help of cotton cloth and that cotton cloth was put

into an envelope which was packed in a polythene bag and handed

over to the Investigating Officer. This witness has deposed that the

team saw bloodstained cloth on the window which was also tested

and given to the Investigating Officer. There was one cot in the

inner side of the partition. The bed was covered with a saree. He

collected the scrapings of the blood stains on the saree for testing.

It was confirmed that those were blood stains but as the test of the

semen identification consumes much time, the saree cover was

handed over to the IO with the instructions to properly seal each

article and send the same to the Forensic Science Laboratory. This

witness also identified the articles.

78. As observed above, the oral evidence of PW-1 and PW-2 being

the parents of the deceased victim do not even suggest culpability

of the accused-appellant. The 3

rd

Prosecution Witness only a

Pancha who put her signatures on bag containing thread and

clothes of the victim. The 4

th

and the 5

th

Prosecution Witnesses

have claimed that they had gone to visit Parshuram Thakur at the

Shiv Sena Office at Koprigaon on the day of the incident. After they

came out of the office, they were standing below a shed and

talking, when they saw an old man come from the side of the

staircase of the building, holding a white bag which he kept in the

lane in front of the parking shed. These witnesses identified the

32

accused-appellant as the man carrying the bag. They also

identified the bag as the bag which the accused-appellant had been

carrying.

79. There are, however, serious loopholes in the evidence of these

two witnesses. First of all, these witnesses as per their own

statement saw a man carrying a white bag. They did not go near

the bag. No reliance can be placed on the purported identification

by the witnesses of the bag produced by the police, as the very

same bag which these witnesses had seen the accused-appellant

carrying. Furthermore, one of the witnesses stated in cross-

examination that they did not suspect anything when they saw the

man carrying the bag. If the body of an eight year old child were

being carried in a bag that would have aroused some suspicion.

80. In any case, these witnesses deposed that the bag was left in

the lane opposite the parking shed, after they came out of the Shiv

Sena Office building, which was around 4.30 p.m. The naked body

of the deceased victim was first discovered in front of the door of

the tenement of the complainant at around 2.00 a.m. at night. If

the body had been dumped outside the door in the early evening,

the body would surely have been noticed earlier.

81. The evidence of PW 6 that the accused-appellant had tried to

outrage her modesty about 15 years ago, has no bearing to the

incident of rape and murder of the deceased victim. Admittedly

this witness had not lodged any police complaint against the

accused-appellant.

33

82. The evidence of PW7 is also of no relevance. This witness, a

Homeopathic Doctor, deposed that on examining the accused-

appellant, she found him suffering from tension and his blood

pressure was slightly high. As per her own evidence she thought

that he might be suffering from acidity.

83. Similarly the evidence of PW 8, a doctor who had examined the

accused-appellant, does not contain anything material to establish

the guilt of the accused-appellant for the offence alleged.

84. The 9

th

Prosecution Witness is only a Panch in whose presence

the clothing of the accused-appellant was seized. He stated that

these were the clothes which the accused-appellant had been

wearing about 2 days after the incident. The 10

th

Prosecution

Witness only corroborated that the 4

th

and 5

th

witnesses had come

to his office and they had later told him what they had seen on 22

nd

January, 2013.

85.Even though, as observed above, there is nothing in the

evidence of any of the witnesses, except the evidence of PW-12 and

PW-18 and the weak evidence of the PW Nos. 4 and 5 purported to

be corroborated by the PW-10, to prove the accused-appellant

guilty of the offences alleged, the forensic reports along with the

extra-judicial confession made by the accused-appellant to his wife

PW-18, clearly establishes the guilt of the accused-appellant.

86.The examination of the reports of the Directorate of Forensic

Laboratories, State of Maharashtra, Home Department, Vidyanagari,

34

Kalina, Santa Cruz (East) Mumbai being Ex. No. 22 to 25 and in

particular the examination report in Ex.25 indicates that DNA profile

of the blood detected on the plastic bag and the clothes and those

obtained from the nails of the victim are identical and are from one

and the same source of female origin. The DNA profile of semen

detected on the underwear (Bermudas), the bedsheet, vaginal swab

and anal swab of the victim are identical and from one and the

same source of male origin. The DNA analysis establishes beyond

reasonable doubt that the victim was raped by the accused-

appellant.

87.By a judgment and order delivered on 6

th

and 7

th

June, 2013,

the learned Special Judge (Protection of Children from Sexual

Offences Act), Thane convicted the accused-appellant of offences

under Sections 363, 364, 367, 302, 201, 376, 376(2)(f) and 377 of

the Indian Penal Code read with Sections 4 and 6 of the Protection

of Children from Sexual Offences Act, 2012.

88.On 7

th

June, 2013, the accused-appellant was produced in

Court and heard on the question of sentence after which the

Trial Court ordered as follows:

“1.Accused Dattatray @ Datta Ambo Rokde is hereby

convicted of the offences punishable under Sections 363,

364, 367, 302, 201 of the Indian Penal Code and under

Sections 376, 376(2)(f), 377 of the Indian Penal Code r/w

Section 3 punishable under Section 4 of the Protection of

Children from Sexual Offences Act and under Sections

5(h)(i), 5(k), (I) (m) punishable under Section 6 of the

Protection of Children from Sexual Offences Act.

35

2. Accused is sentenced to death for an offence

punishable under Section 302 of the Indian Penal Code

and he be hanged by the neck till he is dead, subject to

confirmation by Hon’ble High Court of Judicature at

Bombay.

3. Accused is sentenced to suffer imprisonment for

life for offences under Sections 376, 376(2)(f), 377 of the

Indian Penal Code and offence u/s 3 punishable u/s 4 and

5(h)(i), 5(k), (I) (m) punishable under Section 6 of the

Protection of Children from Sexual Offences Act.

4. No separate sentence is awarded for offences

under Sections 363, 364, 367 and 201 of the Indian Penal

Code.

5. Accused is undertrial prisoner since 25.01.2013.

6. The Muddemal property be preserved till further

orders in reference from Hon’ble High Court.

7. The copy of this judgment be furnished to accused

free of cost forthwith.

8. The Registrar is directed to send the record and

proceedings of this Special Case No.1/2013 to Hon’ble

High Court for confirmation of death sentence.”

89.The Registrar was directed to send the records and

proceedings of the case to the High Court for confirmation of the

death sentence. The accused-appellant also filed an appeal against

the conviction and sentence being Criminal Appeal No.1202 of

2013.

90.The said Criminal Appeal No.1202 of 2013 was heard by a

Division Bench of Bombay High Court alongwith the death sentence

reference being Crl. Confirmation case No.6 of 2013 in Special Case

No.1 of 2013.

36

91.By a judgment and order dated 21

st

, 24

th

, 25

th

March, 2014,

the Division Bench of Bombay High Court confirmed the conviction

and sentence of death imposed under Section 302 of the Indian

Penal Code on the accused-appellant. The appeal of the accused-

appellant was partly allowed only to the extent that the conviction

of the accused-appellant under Section 376 simplicitor was set

aside. The State has not filed any appeal against the judgment and

order of the Division Bench.

92.We have considered the evidence on record in detail and we

find absolutely no ground to interfere with the conviction of the

accused-appellant, as confirmed by the First Appellate Court.

93.As argued on behalf of the accused-appellant there may have

been embellishment of the evidence against the accused-appellant.

The evidence of the PWs 4 and 5 supported by PW-10 can never be

the basis of any conviction and is fraught with inherent

inconsistencies.

94.Even assuming that PWs 4 and 5 actually noticed the

accused-appellant carrying a bag and dumping it in the lane

opposite the car shed, this was in the evening of 22.1.2013

whereas the body of the victim was first seen by her parents

outside the door of their tenement, well past midnight, at around

2.00 a.m.

95.Admittedly, these two witnesses had not noticed anything

suspicious. A bag with the body of the child would, in all likelihood,

37

have aroused suspicion. No other material was found to suggest

that the body might have been concealed and/or wrapped and then

put in the bag identified by PW-4 and PW-5. Admittedly, these two

witnesses did not examine the bag carried by the accused-appellant

(if at all) closely. No credence can be placed on identification by the

PW 4 and 5, of the bag seized and produced by the Police, as the

same bag carried by the accused-appellant. The identification is

preposterous.

96.It is equally true that none of the witnesses except PW-18,

Asha, wife of the accused-appellant to whom the accused-appellant

confessed his guilt and the PW-12, a Pancha, in whose presence the

accused-appellant made extra judicial confession to the Police, is

relevant to the guilt of the accused-appellant. However, it is

reiterated at the cost of repetition that the forensic evidence

supported by the evidence of PW-18 establishes the guilt of the

appellant beyond reasonable doubt. We, thus, confirm the

conviction of the accused-appellant for the offences under Sections

302, 376(2)(f), 377 of the IPC read with Sections 3, 4 and 5 of the

POCSO.

97.The question is, whether death sentence imposed on the

accused-appellant for offences under Section 302 should be

confirmed or be commuted to life sentence, as argued on behalf of

the accused-appellant.

98.Counsel appearing on behalf of the accused-appellant

submitted that (i) the case did not fall under the category of the

38

rarest of rare cases; (ii) the accused-appellant was not effectively

defended before the Trial Court and the First Appellate Court; (iii)

the hearing given to the appellant under Section 235(2) of the Code

of Criminal Procedure on the quantum of sentence was not an

effective hearing; (iv) Counsel appearing on behalf of the accused-

appellant before the Trial Court only submitted that there were no

eye witnesses to the crime, and a lesser punishment should be

imposed having regard to the age of the accused-appellant; (v) the

attention of the Court was not drawn to mitigating circumstances

for imposition of a lesser sentence and mitigating circumstances

were never considered; (vi) the accused-appellant was not given

the opportunity to file an affidavit placing on record mitigating

circumstances; (vii) Trial court did not make any effort to elicit facts

which could be mitigating circumstances against imposition of the

extreme penalty of death sentence; (viii) there was no finding

recorded either by Trial or the Appellate Court that there was no

alternative to the imposition of death sentence and (ix) the Trial

Court did not consider the possibility of reformation or rehabilitation

of the accused-appellant. Counsel argued that there was no reason

to suppose that the accused-appellant would be a continuing threat

to society unless hanged.

99.In Bachan Singh v. State of Punjab

1

, this Court, while

upholding the validity of death sentence held, that imprisonment

for life was the rule and death sentence an exception, to be

1 (1980) 2 SCC 684

39

imposed in the “rarest of rare” cases, recording special reasons. In

Bachan Singh (supra), this Court in effect held that before

exercising discretion to impose the extreme penalty of death

sentence, aggravating and mitigating circumstances are required to

be considered. Some of the mitigating factors would be the

extreme mental or emotional disturbance in which the offence

might have been committed, the possibility that the accused-

appellant would not be a continuing threat to society, the possibility

of reformation and rehabilitation of the accused, mental defect or

disorder of the accused etc.

100.In Rajesh Kumar vs. State (through Govt. of NCT of

Delhi)

2

, this Court observed:-

“83. The ratio in Bachan Singh has received

approval by the international legal community and

has been very favourably referred to by David

Pannick in Judicial Review of the Death Penalty:

Duckworth (see pp. 104-05). Roger Hood and

Carolyn Hoyle in their treatise on The Death

Penalty, 4th Edn. (Oxford) have also very much

appreciated the Bachan Singh ratio (see p. 285).

The concept of “rarest of rare” which has been

evolved in Bachan Singh by this Court is also the

internationally accepted standard in cases of death

penalty.

84. Reference in this connection may also be made

to the right based approach in exercising

discretion in death penalty as suggested by

Edward Fitzgerald, the British Barrister. [Edward

Fitzgerald: The Mitigating Exercise in Capital Cases

in Death Penalty Conference (3-5 June), Barbados:

Conference Papers and Recommendations.] It has

been suggested therein that right approach

towards exercising discretion in capital cases is to

start from a strong presumption against the death

penalty. It is argued that “the presence of any

2 (2011) 13 SCC 706

40

significant mitigating factor justifies exemption

from the death penalty even in the most gruesome

cases” and Fitzgerald argues:

“Such a restrictive approach can be summarised

as follows: The normal sentence should be life

imprisonment. The death sentence should only be

imposed instead of the life sentence in the ‘rarest

of rare’ cases where the crime or crimes are of

exceptional heinousness and the individual has no

significant mitigation and is considered beyond

reformation.”

(Quoted in The Death Penalty, Roger Hood and Hoyle,

4th Edn., Oxford, p. 285.)

86. Taking an overall view of the facts in these

appeals and for the reasons discussed above, we

hold that death sentence cannot be inflicted on the

appellant since the dictum of the Constitution

Bench in Bachan Singh is that the legislative policy

in Section 354(3) of the 1973 Code is that for a

person convicted of murder, life imprisonment is

the rule and death sentence, an exception, and the

mitigating circumstances must be given due

consideration. Bachan Singh further mandates that

in considering the question of sentence the court

must show a real and abiding concern for the

dignity of human life which must postulate

resistance to taking life through law’s

instrumentality. Except in the “rarest of rare cases”

and for “special reasons” death sentence cannot

be imposed as an alternative option to the

imposition of life sentence”.

101.In Rajesh Kumar (supra), the accused was convicted of

assault and murder of two helpless children in the most gruesome

manner. This Court held that death sentence could not be inflicted,

reiterating that life imprisonment was the rule and death sentence

an exception only to be imposed in the “rarest of rare cases” and

for “special reasons” when there were no mitigating circumstances.

102.Section 235 of the Criminal Procedure Code (Cr.P.C.), reads as

follows:-

41

“235. Judgment of acquittal or conviction.—(1)

After hearing arguments and points of law (if any), the

Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless

he proceeds in accordance with the provisions of

Section 360, hear the accused on the question of

sentence, and then pass sentence on him according

to law.”

103.Section 235 (2) of the CrPC is not a mere formality. It is

obligatory on the part of the learned trial Judge to hear the accused

on the question of sentence and deal with it. To quote Bhagwati J.

in Santa Singh vs. State of Punjab

3

.

“2. …...This provision is clear and explicit and

does not admit of any doubt. It requires that in

every trial before a court of sessions, there must

first be a decision as to the guilt of the accused.

The court must, in the first instance, deliver a

judgment convicting or acquitting the accused. If

the accused is acquitted, no further question

arises. But if he is convicted, then the court has

to “hear the accused on the question of sentence,

and then pass sentence on him according to law”.

When a judgment is rendered convicting the

accused, he is, at that stage, to be given an

opportunity to be heard in regard to the sentence

and it is only after hearing him that the court can

proceed to pass the sentence.

3. This new provision in Section 235(2) is in

consonance with the modern trends in penology

and sentencing procedures. There was no such

provision in the old Code. Under the old Code,

whatever the accused wished to submit in regard

to the sentence had to be stated by him before

the argumentss concluded and the judgment was

delivered. There was no separate stage for being

heard in regard to sentence. The accused had to

produce material and make his submissions in

regard to sentence on the assumption that he

was ultimately going to be convicted. This was

most unsatisfactory. The legislature, therefore,

decided that it is only when the accused is

3 (1976) 4 SCC 190

42

convicted that the question of sentence should

come up for consideration and at that stage, an

opportunity should be given to the accused to be

heard in regard to the sentence. Moreover, it was

realised that sentencing is an important stage in

the process of administration of criminal justice-

as important as the adjudication of guilt-and it

should not be consigned to a subsidiary position

as if it were a matter of not much consequence.

It should be a matter of some anxiety to the court

to impose an appropriate punishment on the

criminal and sentencing should, therefore, receive

serious attention of the court.

…..The reason is that a proper sentence is the

amalgam of many factors such as the nature of

the offence, the circumstances-extenuating or

aggravating- of the offence, the prior criminal

record, if any, of the offender, the age of the

offender, the record of the offender as to

employment, the background of the offender with

reference to education, home life, sobreity and

social adjustment, the emotional and mental

condition of ‘the offender, the prospects for the

rehabilitation of the offender, the possibility of

treatment or training of the offender, the

possibility that the sentence may serve as a

deterrent to crime by the offender or by others

and the current community need, if any, for such

a deterrent in respect to the particular type of

offence. These are factors which have to be

taken into account by the court in deciding upon

the appropriate sentence, and, therefore, the

legislature felt that, for this purpose, a separate

stage should be provided after conviction when

the court can hear the accused in regard to these

factors bearing on sentence and then pass proper

sentence on the accused.

4. ….The hearing on the question of sentence,

would be rendered devoid of all meaning and

content and it would become an idle formality, if

it were confined merely to hearing oral

submissions without any opportunity being given

to the parties and particularly to the accused, to

produce material in regard to various factors

bearing on the question of sentence, and if

necessary, to lead evidence for the purpose of

placing such material before the court.

43

104.In Santa Singh (supra), Bhagwati, J. set aside the sentence

of death and remanded the case to the Sessions Court with a

direction to pass appropriate sentence after giving an opportunity

to the petitioner in the aforesaid case of being heard with regard to

the question of sentence, in accordance with the provisions of

Section 235(2) CrPC.

105.In Dagdu and Others v. State of Maharashtra

4

, a three-

Judge Bench of this Court referred to Santa Singh (supra) and held

that the mandate of Section 235(2) CrPC had to be obeyed in letter

and spirit. Chandrachud, J. held:-

“79. … The Court, on convicting an accused,

must unquestionably hear him on the question of

sentence. But if, for any reason, it omits to do so

and the accused makes a grievance of it in the

higher court, it would be open to that Court to

remedy the breach by giving a hearing to the

accused on the question of sentence. That

opportunity has to be real and effective, which

means that the accused must be permitted to

adduce before the Court all the data which he

desires to adduce on the question of sentence.

The accused may exercise that right either by

instructing his counsel to make oral submissions

to the Court or he may, on affidavit or otherwise,

place in writing before the Court whatever he

desires to place before it on the question of

sentence. The Court may, in appropriate cases,

have to adjourn the matter in order to give to the

accused sufficient time to produce the necessary

data and to make his contentions on the question

of sentence. That, perhaps, must inevitably

happen where the conviction is recorded for the

first time by a higher court.”

4 (1977) 3 SCC 68

44

106.In Machhi Singh & Others v. State of Punjab

5

, this

Court held:-

“38. … (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.”

107.In Santosh Kumar Satishbhushan Bariyar v. State of

Maharashtra

6

, this Court observed and held:-

“157. The doctrine of proportionality, which

appears to be the premise whereupon the

learned trial Judge as also the High Court laid its

foundation for awarding death penalty on the

appellant herein, provides for justifiable

reasoning for awarding death penalty. However,

while imposing any sentence on the accused the

court must also keep in mind the doctrine of

rehabilitation. This, considering Section 354(3) of

the Code, is especially so in the cases where the

court is to determine whether the case at hand

falls within the rarest of the rare case.

158. The reasons assigned by the courts below,

in our opinion, do not satisfy Bachan Singh test.

Section 354(3) of the Code provides for an

exception. General rule of doctrine of

proportionality, therefore, would not apply. We

must read the said provision in the light of Article

21 of the Constitution of India. Law laid down by

Bachan Singh and Machhi Singh interpreting

Section 354(3) of the Code should be taken to be

a part of our constitutional scheme.

159. Although the Constitutional Bench

judgment of the Supreme Court in Bachan Singh

did not lay down any guidelines on determining

which cases fall within the “rarest of rare”

category, yet the mitigating circumstances listed

in and endorsed by the judgment give reform and

5 (1983) 3 SCC 470

6 (2009) 6 SCC 498

45

rehabilitation great importance, even requiring

the State to prove that this would not be

possible, as a precondition before the court

awarded a death sentence. We cannot therefore

determine punishment on grounds of

proportionality alone. There is nothing before us

that shows that the appellant cannot reform and

be rehabilitated.

162. Further indisputably, the manner and

method of disposal of the dead body of the

deceased was abhorrent and goes a long way in

making the present case a most foul and

despicable case of murder. However, we are of

the opinion, that the mere mode of disposal of a

dead body may not by itself be made the ground

for inclusion of a case in the “rarest of rare”

category for the purpose of imposition of the

death sentence. It may have to be considered

with several other factors.

108.In Ajay Pandit and Another v. State of Maharashtra

7

,

this Court held:-

“47. Awarding death sentence is an exception, not

the rule, and only in the rarest of rare cases, the

court could award death sentence. The state of

mind of a person awaiting death sentence and the

state of mind of a person who has been awarded

life sentence may not be the same mentally and

psychologically. The court has got a duty and

obligation to elicit relevant facts even if the

accused has kept totally silent in such situations. In

the instant case, the High Court has not addressed

the issue in the correct perspective bearing in mind

those relevant factors, while questioning the

accused and, therefore, committed a gross error of

procedure in not properly assimilating and

understanding the purpose and object behind

Section 235(2) CrPC.”

109.In Mohinder Singh v. State of Punjab

8

, this Court held:-

“22. The doctrine of “rarest of rare” confines two

aspects and when both the aspects are satisfied

7 (2012) 8 SCC 43

8 (2013) 3 SCC 294

46

only then the death penalty can be imposed.

Firstly, the case must clearly fall within the ambit

of “rarest of rare” and secondly, when the

alternative option is unquestionably foreclosed.

Bachan Singh suggested selection of death

punishment as the penalty of last resort when,

alternative punishment of life imprisonment will be

futile and serves no purpose.

23. In life sentence, there is a possibility of

achieving deterrence, rehabilitation and retribution

in different degrees. But the same does not hold

true for the death penalty. It is unique in its

absolute rejection of the potential of convict to

rehabilitate and reform. It extinguishes life and

thereby terminates the being, therefore, puts an

end to anything to do with life. This is the big

difference between two punishments. Thus, before

imposing death penalty, it is imperative to

consider the same. The “rarest of rare” dictum, as

discussed above, hints at this difference between

death punishment and the alternative punishment

of life imprisonment. The relevant question here

would be to determine whether life imprisonment

as a punishment would be pointless and

completely devoid of any reason in the facts and

circumstances of the case. As discussed above, life

imprisonment can be said to be completely futile,

only when the sentencing aim of reformation can

be said to be unachievable. Therefore, for

satisfying the second aspect to the “rarest of rare”

doctrine, the court will have to provide clear

evidence as to why the convict is not fit for any

kind of reformatory and rehabilitation scheme”.

110.In Panchhi and Others v. State of U.P.

9

, this Court

observed:-

“20. … No doubt brutality looms large in the

murders in this case particularly of the old and

also the tender-aged child. It may be that the

manner in which the killings were perpetrated

may not by itself show any lighter side but that is

not very peculiar or very special in these killings.

Brutality of the manner in which a murder was

perpetrated may be a ground but not the sole

criterion for judging whether the case is one of

9 (1998) 7 SCC 177

47

the ‘rarest of rare cases’ as indicated in Bachan

Singh case.”

111. In Bantu v. State of M.P.

10

this Court found that there was

nothing on record to indicate that the appellant had any criminal

antecedents nor could it be said that he would be a grave danger to

the society at large despite the fact that the crime committed by

him was heinous. This Court held:-

“8. However, the learned counsel for the

appellant submitted that in any set of

circumstances, this is not the rarest of the rare

case where the accused is to be sentenced to

death. He submitted that age of the accused on

the relevant day was less than 22 years. It is his

submission that even though the act is heinous,

considering the fact that no injuries were found

on the deceased, it is probable that death might

have occurred because of gagging her mouth

and nosetrix [nostril] by the accused at the time

of incident so that she may not raise a hue and

cry. The death, according to him, was accidental

and an unintentional one. In the present case,

there is nothing on record to indicate that the

appellant was having any criminal record nor can

it be said that he will be a grave danger to the

society at large. It is true that his act is heinous

and requires to be condemned but at the same

time it cannot be said that it is the rarest of the

rare case where the accused requires to be

eliminated from the society. Hence, there is no

justifiable reason to impose the death sentence.”

(Emphasis supplied by us).

112. In Amit v. State of Maharashtra

11

this Court took into

consideration, the prior history of the appellant and noted that

there was no record of any previous heinous crime and also there

was no evidence that he would be a danger to society if the death

10 (2001) 9 SCC 615

11 (2003) 8 SCC 93

48

penalty was not awarded to him. The relevant finding (Paragraph

10) is extracted hereinbelow:-

“10. The next question is of the sentence.

Considering that the appellant is a young man, at

the time of the incident his age was about 20

years; he was a student; there is no record of any

previous heinous crime and also there is no

evidence that he will be a danger to the society, if

the death penalty is not awarded. Though the

offence committed by the appellant deserves

severe condemnation and is a most heinous

crime, but on cumulative facts and circumstances

of the case, we do not think that the case falls in

the category of rarest of the rare cases…….”

113. In the case of Rahul v. State of Maharashtra

12

this Court

noted that there was no adverse report about the conduct of the

appellant therein either by the jail authorities or by the probationary

officer and that he had no previous criminal record or at least

nothing was brought to the notice of the Court. This Court observed

as follows:-

“4. We have considered all the relevant aspects of

the case. It is true that the appellant committed a

serious crime in a very ghastly manner but the

fact that he was aged 24 years at the time of the

crime, has to be taken note of. Even though, the

appellant had been in custody since 27-11-1999

we are not furnished with any report regarding the

appellant either by any probationary officer or by

the jail authorities. The appellant had no previous

criminal record, and nothing was brought to the

notice of the Court. It cannot be said that he would

be a menace to the society in future. Considering

the age of the appellant and other circumstances,

we do not think that the penalty of death be

imposed on him.”

114. Similarly, in Surendra Pal Shivbalakpal v. State of

12 (2005) 10 SCC 322

49

Gujarat

13

the absence of any involvement in any previous criminal

case was considered to be a factor to be taken into consideration

for the purposes of awarding the sentence to the appellant therein.

This Court held :

“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. We confirm conviction of the appellant

on all the counts, but the sentence of death penalty

imposed on him for the offence under Section 302

IPC is commuted to life imprisonment.”

115.In Mukesh and Another v. State (NCT of Delhi) and

Others

14

, a three-Judge Bench of this Court considered the earlier

judgments of this Court referred to above and deemed it

appropriate to give opportunity to the accused to file affidavits to

bring on record mitigating circumstances for reduction of the

sentence.

116.The accused-appellant was produced before the Trial court for

hearing under Section 235(2) of the Code of Criminal Procedure the

day after the judgment and order of his conviction was passed. The

accused-appellant, it appears, did not make any submission on the

point of sentence. This is recorded by the Trial Court. The

13 (2005) 3 SCC 127

14 (2017) 3 SCC 717

50

accused-appellant only pleaded ‘not guilty’ submitting that there

was no eye witness to the crime. The Trial Court has recorded that

Advocate Waghachadu, the learned Advocate appearing for the

accused-appellant submitted that “considering the fact that

accused is 53 years old leniency be shown to accused” in awarding

death sentence.

117. The Trial Court has accepted the submission of the learned

Special Public Prosecutor that there were no mitigating

circumstances to award life imprisonment instead of death

sentence. The Special Public Prosecutor submitted that the offences

had been committed with extreme depravity.

118.It may be pertinent to note that in awarding death sentence,

the trial court referred to and relied upon two judgments of this

Court of affirmation of death sentence, that is, Rajendra

Prahladrao Wasnik v. State of Maharashtra

15

and Mohd.

Manan @ Abdul Mannan v. State of Bihar

16

. On review of both

the judgments, death sentence has been commuted to

imprisonment for life.

119.In Haru Ghosh vs. State of West Bengal

17

, this Court

commuted death sentence to life imprisonment in the case of a

dastardly murder of two helpless persons for no fault of theirs. This

Court, however, in commuting death sentence took into

consideration the following factors:-

15 R.P. (Crl) No. 306-307 of 2013

16 Case NO. R.P (Crl) No. 308 of 2011 in Crl. A. No. 379 of 2009

17 (2009) 15 SCC 551

51

“i.There was no pre-meditation on the part of the

accused;

ii.The act was on the spur of the moment;

iii.The accused was not armed with any weapon;

iv.It was unknown under what circumstances the

accused had entered the house of the deceased and

what prompted him to assault the boy; and

v.The cruel manner in which the murder was

committed could not be the guiding factor and the

accused himself had two minor children.”

120.In Haru Ghosh (supra), this Court observed, “….the cruel

manner in which the murder was committed and the subsequent

action on the part of the accused in severing the parts of the body

of the deceased, do not by themselves become the guiding factor

in favour of death sentence.”

121.In Lehna vs. State of Haryana

18

, even though three lives

had been lost by reason of the crime, this Court modified the

punishment by commuting death sentence to life imprisonment,

observing that there was no evidence of any diabolic planning to

commit the crime, though the act was cruel.

122.In this case too there is no evidence at all of any diabolic

planning to commit the crime though the crime was undoubtedly

cruel and heinous. The circumstances in which the victim entered

the tenement of the accused-appellant are not known. There is no

evidence to show that the accused-appellant took the victim to his

tenement. Though unlikely, she might even have gone to his

tenement on her own.

18 (2002) 3 SCC 76

52

123. Under the Indian Penal Code and, in particular, Section 299

thereof, whoever causes death by doing an act either with the

intention of causing death or with the intention of causing such

bodily injury as is likely to cause death or with the knowledge that

he is likely, by such act, to cause death, commits the offence of

culpable homicide.

124. As per the definition of Section 300 of the IPC, except in

cases excepted thereafter, culpable homicide is murder if the act by

which the death is caused (i) is done with the intention of causing

death or (ii) if it is done with the intention of causing such bodily

harm as the offender knows to be likely to cause the death of the

person to whom the harm is caused or (iii) if the act is done with

the intention of causing bodily injury to any person and the bodily

injury intended to be inflicted is sufficient in the ordinary course of

nature to cause death or (iv) if the person committing the act knows

that it is so imminently dangerous that it must, in all probabily,

cause death or such bodily injury as is likely to cause death and

commits such act without any excuse for incurring the risk of

causing death or such injury as aforesaid.

125. As a mature man, over fifty years of age, the accused-

appellant should have known that the rape of a five year old child

by an adult was dangerous and could lead to such injuries, as was

in all probability likely to cause death.

126. The death of the deceased victim was not caused under any

provocation, not to speak of sudden provocation. No such defence

53

has been taken by the accused-appellant. Nor is it anybody’s case

that the death was caused in legitimate exercise in good faith of

any right of the accused-appellant, whether of private defence or

otherwise. The death has been caused without any provocation.

127. The totality of the injuries support the finding of the Trial

Court and the First Appellate Court that the accused-appellant

murdered the deceased victim. Though the act of the accused

squarely amounts to rape and murder, there is not a scrap of

material to show that the intention of the accused-appellant was to

kill the minor child.

128. The PW-1, Dr. Bhusan Jain who had prepared the post mortem

report opined that the cause of death was asphyxia due to

smothering, associated with head injuries and sexual assault. Dr.

Bhusan Jain deposed that all the 5 injuries were possible by

repeated sexual acts and forceful penetration. He opined that all

the injuries were sufficient to cause instant death in the ordinary

course.

129. Being a man of about 50 years of age, the accused-appellant

should have known that repeated sexual assault could have led to

the death of the victim and in fact did lead to the death of the

victim, only five years of age. The accused-appellant has rightly

been convicted of murder apart from child rape. However, there is

no evidence at all direct or circumstantial which establishes that the

intention of the accused-appellant was to kill the deceased victim.

130. Considering the totality of the evidence before us, we uphold

54

the conviction of the accused-appellant. However, in view of the

evidence of the post mortem report of Dr. Bhusan Jain, we deem it

appropriate to modify the sentence by reducing the same to

imprisonment for life.

131. There can be no doubt that rape and murder of a 5 years old

girl shocks the conscience. It is barbaric. There is, however, no

evidence to support the finding that the murder was pre-meditated.

The petitioner did not carry any weapon. The possibility that the

accused-appellant might not have realized that his act could lead to

death cannot altogether be ruled out. Moreover, the Trial Court has

apparently not considered the question of whether the crime is the

rarest of rare crimes as mandated by the Supreme Court in Bachan

Singh (supra).

132. In Review Petition (Crl.) No.306-307 of 2013 ( Rajendra

Prahladrao Wasnik v. State of Maharashtra) the Court

commuted the death sentence, in a case of rape and murder of a

three year old child to life imprisonment, inter alia, observing that

the case did not fall in the category of the rarest of the rare.

133.As argued by learned counsel appearing on behalf of the

petitioner, the High Court found the offence to be in the category of

the rarest of rare cases, having regard to the nature of the offence

and the age of the victim.

134.Counsel for the accused-appellant submitted that the

brutality of the crime and age of the victim was not ground enough

to inflict death sentence. Learned counsel submitted that the

55

petitioner had been convicted on circumstantial evidence, based on

faulty investigation.

135. However, as observed above, the forensic evidence

construed in the light of the evidence of PW-18, Asha, wife of the

accused-appellant, that the accused-appellant had confessed to the

crime to her, establishes the guilt of the accused-appellant and

death sentence can be imposed even where conviction is based on

circumstantial evidence, provided the case falls in the category of

the rarest of rare and there are no mitigating circumstances and no

possibility of reform or rehabilitation of the convict.

136.On analogy of the reasoning in Review Petition (Crl) No. 306-

307 of 2013 in the case of Rajendra Prahladrao Wasnik v.

State of Maharashtra, this Court is constrained to hold that this

case does not fall in the category of the rarest of rare cases.

Moreover, the accused-appellant was not defended effectively. The

lawyer representing the accused-appellant only pleaded not guilty,

emphasizing that there was no eye witness to the incident and

sought leniency only on the ground of the age of the accused-

appellant which was 53 years.

137.The accused-appellant neither sought nor was given the

opportunity to file any affidavit placing on record relevant

mitigating circumstances. The legal assistance availed by the

accused-appellant was patently not satisfactory and he was not

accompanied by a social worker. No attempt was made to place on

record mitigating circumstances. No argument was advanced to

56

the effect that there was no similar case against the accused-

appellant. In the absence of any arguments, the Trial Court did not

consider the question of whether the accused-appellant could be

reformed.

138.Considering the nature of the crime against a five year old

child, the Trial Court imposed the extreme penalty of death without

deciding the question of whether there was no alternative to

imposing death sentence on the accused-appellant. There is no

finding that in the absence of death sentence, the accused-

appellant would continue to be a threat to the society. The question

of whether the accused-appellant could be reformed, had not at all

been considered.

139. As held in Dagdu (supra) irrespective of whether these

issues were raised on behalf of the accused, the Court is obliged on

its own to elicit facts relevant to the question of existence of

mitigating circumstances. The Court made no attempt to elicit any

facts relevant to the sentence.

140.For effective hearing under Section 235(2) of the Code of

Criminal Procedure, the suggestion that the court intends to impose

death penalty should specifically be made to the accused, to enable

the accused to make an effective representation against death

sentence, by placing mitigating circumstances before the Court.

This has not been done. The Trial Court made no attempt to elicit

relevant facts, nor did the Trial Court give any opportunity to the

petitioner to file an affidavit placing on record mitigating factors. As

57

such the petitioner has been denied an effective hearing.

141.Contrary to the dictum of this Court, inter alia, in Dagdu

(supra) and Santa Singh (supra) the petitioner was not given a

real, effective and meaningful hearing on the question of sentence

under Section 235(2) of the Cr.P.C. The death sentence imposed on

the petitioner is liable to be commuted to life imprisonment on this

ground.

142.There can be no doubt that the rape and murder of a five

years old child is absolutely heinous and barbaric, but as observed

above, it cannot be said to be in the category of rarest of rare

cases.

143.In Mulla and Another v. State of U.P.

19

, this Court has

affirmed that it is open to the Court to prescribe the length of

incarceration. This is especially true in cases where death sentence

has been replaced by the life imprisonment. This Court observed,

“the court should be free to determine the length of imprisonment

which will suffice the offence committed.”

144.Even though life imprisonment means imprisonment for entire

life, convicts are often granted reprieve and/or remission of

sentence after imprisonment of not less than 14 years. In this case,

considering the heinous, revolting, abhorrent and despicable nature

of the crime committed by the appellant, we feel that the appellant

should undergo imprisonment for life, till his natural death and no

remission of sentence be granted to him.

19 (2010) 3 SCC 508

58

145.For the above reasons, we are of the view that the present

appeals are one of such cases where we would be justified in

holding that confinement till natural life of the accused-appellant

shall fulfil the requisite criteria of punishment considering the

peculiar facts and circumstances of the present case. Accordingly,

the death sentence awarded by the trial court is hereby modified to

“life imprisonment” i.e., imprisonment for the natural life of the

appellant herein. The appeals are allowed accordingly to the extent

indicated above.

.……………................................J.

(N. V. RAMANA)

.…………...................................J.

(DEEPAK GUPTA)

…………….................................J.

(INDIRA BANERJEE)

FEBRUARY 21, 2019

NEW DELHI