HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

REFERRED TRIAL No. 1 OF 2023

AND

CRIMINAL APPEAL No. 191 OF 2023

Between:

Dudekula Siddaiah,

S/o Peeraiah, 32 years, C/o Dudekula,

R/o Ambavaram Village, Giddalur Mandal,

Prakasam District, Andhra Pradesh … Appellant

AND

The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court of A.P.,

Amaravati. … Respondent

Date of Judgment Pronounced : 23-10-2024

SUBMITTED FOR APPROVAL :

THE HON'BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

1. Whether Reporters of Local newspapers

may be allowed to see the judgment? Yes/No

2. Whether the copy of judgment may

be marked to Law Reporters/Journals? Yes/No

3. Whether Their Lordships wish to see the

fair copy of the judgment? Yes/No

___________________

K.SURESH REDDY, J.

_______________________

K.SREENIVASA REDDY, J.

2

*THE HON'BLE SRI JUSTICE K.SURESH REDDY

AND

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

+ REFERRED TRIAL No. 1 OF 2023

AND

CRIMINAL APPEAL No. 191 OF 2023

%Dated: 23-10-2024

#Dudekula Siddaiah, S/o Peeraiah,

32 years, C/o Dudekula,

R/o Ambavaram Village, Giddalur Mandal,

Prakasam District, Andhra Pradesh … Appellant

VERSUS

$The State of Andhra Pradesh,

Rep. by its Public Prosecutor,

High Court of A.P.,

Amaravati … Respondent

!Counsel for the appellant : Sri I.V.N.Raju

^Counsel for the respondent: Sri M.Lakshmi Narayana,

Learned Public Prosecutor

<GIST:

>HEAD NOTE:

? Cases referred:

1. AIR 1980 SC 898

2. (2023) 2 SCC 353

3. 2023 LiveLaw (SC) 217

3

HON'BLE SRI JUSTICE K.SURESH REDDY

AND

HON'BLE SRI JUSTICE K.SREENIVASA REDDY

REFERRED TRIAL No. 1 OF 2023

AND

CRIMINAL APPEAL No. 191 OF 2023

COMMON JUDGMENT: (per Hon'ble Sri Justice K.Suresh Reddy)

By judgment dated 25-01-2023 in S.C.No. 78 of 2021 on

the file of the Court of learned Special Judge for Trial of Offences

under Protection of Children from Sexual Offences Act, 2012,

Prakasam District at Ongole (for short, 'the trial Court'), the sole

accused was found guilty of the offences under Sections 201,

342, 366, 376-AB and 302 of Indian Penal Code (for short, 'IPC')

and Section 6 read with Section 5 (l) (m) (r) of the Protection of

Children from Sexual Offences Act, 2012 (for short, '2012 Act').

2. The sole accused was tried by the trial Court under the

following charges:

I charge was under Section 366 IPC;

II charge was under Section 342 IPC;

III charge was under Section 376-AB IPC;

4

IV charge was under Section 302 IPC;

V charge was under Section 201 IPC;

VI charge was under Section 6 of 2012 Act; and

Last charge was under Section 5 (l) (m) (r) of 2012 Act.

3. The trial Court sentenced the accused to suffer rigorous

imprisonment for seven years and also to pay a fine of Rs.500/-,

in default to suffer simple imprisonment for a period of three

months, for the offence under Section 201 IPC; to suffer rigorous

imprisonment for one year and also to pay a fine of Rs.500/-, in

default to suffer simple imprisonment for a period of three months,

for the offence under Section 342 IPC; to suffer rigorous

imprisonment for ten years and also to pay a fine of Rs.500/-, in

default to suffer simple imprisonment for a period of three months,

for the offence under Section 366 IPC; to suffer rigorous

imprisonment for not less than twenty years which may extend to

imprisonment for life which shall mean imprisonment for the

remainder of natural life and also to pay a fine of Rs.500/-, in

default to suffer simple imprisonment for a period of three months,

for the offence under Section 376-AB IPC; to suffer death penalty

and also to pay a fine of Rs.500/-, in default to suffer simple

imprisonment for a period of three months, for the offence under

5

Section 302 IPC and to suffer death penalty and also to pay a fine

of Rs.500/-, in default to suffer simple imprisonment for a period

of three months, for the offence under Section 6 read with Section

5 (l) (m) (r) of 2012 Act. All the substantive sentences were

directed to run concurrently.

4. Since the accused was sentenced to suffer death penalty

on two counts, the trial Court by letter dated 25-01-2023

submitted the proceedings to this Court in terms of Section 366 of

the Code of Criminal Procedure (for short, 'Cr.P.C.') for

confirmation of death penalty. The Registry numbered the said

letter as R.T.No. 1 of 2023. Questioning the conviction and

sentence recorded by the trial Court, the accused preferred

Criminal Appeal No. 191 of 2023.

5. The substance of the charges is that on 08-07-2021 at

about 3 p.m., the accused kidnapped the deceased, who was

aged about 7 years, at Ambavaram Village, Giddalur Mandal,

wrongfully confined her, committed rape on her and banged her

head to a wooden cot causing her death and in the said process,

he wiped blood with a quilt and packed the dead body in a plastic

bag and threw it in a canal, thereby committed the offences

punishable under Sections 201, 342, 366, 376-AB and 302 IPC

6

and Section 6 read with Section 5 (l) (m) (r) of 2012 Act. After

completion of trial, the trial Court convicted the accused as stated

supra.

6. Case of the prosecution in brief is thus:

The accused as well as the material prosecution witnesses

are residents of Ambavaram Village, Giddalur Mandal, Prakasam

District. P.W.2 is mother of the deceased. The deceased was

aged about 7 years and was studying II Class in M.P.U.P. School,

Ambavaram Village. Due to corona pandemic, schools were not

functioning and at the time of incident, the deceased was playing

with other children. While so, on 08-07-2021, the deceased went

for playing and returned back home. At about 3 p.m., P.W.2 saw

the accused taking the deceased by putting his hand on her

shoulders. As the accused is uncle by courtesy, P.W.2 was

under the impression that she will come back again. Till evening

5 p.m., the deceased did not return home. P.W.2 and her

husband searched for the deceased and they found the accused

and the deceased were missing. While so, on the next day i.e. on

09-07-2021 at about 3 p.m., Shaik Khammam Khasim Peera,

Village Revenue Assistant, Ambavaram Village-L.W.5 came to

P.W.1-Village Revenue Officer, Ambavaram Village, and informed

7

the latter that there was a plastic bag with packing in the canal

which is near to the road that leads to fields from the village.

Immediately, P.W.1 along with L.W.5 rushed to the said place

and noticed a hand visible in the said bag. He came to the

conclusion that dead body of a child was packed in the said

plastic bag. P.W.1 kept L.W.5 at that place and went to Giddalur

Police Station for lodging report. P.W.14-the then in-charge Sub

Inspector of Police, Giddalur Police Station, received Ex.P1-

Report from P.W.1 and registered a case in crime No. 379 of

2021 under Sections 302 and 201 IPC and submitted copies of

FIR to all the concerned. Ex.P25 is copy of FIR. Immediately,

P.W.14 went to P.W.15-Inspector of Police, Giddalur, who took up

investigation. P.W.15 sent intimation to Additional

Superintendent of Police, Prakasam District, for sending dog

squad to Ambavaram Village. P.W.15 recorded statement of

P.W.1 at police station. Then, P.W.15 secured the presence of

P.W.8 and one Yandala Pedda Rangaiah (L.W.16)-Mediators and

rushed to the scene of offence which is situated towards western

side of Ambavaram Village. P.W.15 found dead body of the

deceased in dry canal by the side of road covered in a plastic

bag. P.W.15 got lifted the bag from the canal with the help of one

8

Amaravathi Gurumurthi-L.W.7 and Amaravathi Sivarao-L.W.8 and

got it opened with them and found one female child dead body

with injuries on head and also on private parts. P.W.15 also

noticed one bite injury on right cheek. L.W.5 identified the dead

body as that of daughter of P.W.2. Immediately, P.W.2 along

with her relatives came to the canal and found the dead body of

her daughter in the said plastic bag. P.W.15 seized one yellow

colour plastic bag, one white colour plastic bag with bloodstains,

one colour Photostat copy of aadhar card belonging to the

accused, Chandranna Ramzan Tohfa bag, white colour thermocol

pieces, one yellow colour plastic bag with Thums Up symbol, one

Annapurna Gold brawn rice bag and V-guard symbol plastic fan

cover under Ex.P9-Panchanama and they were marked as

M.Os.1 to 8. P.W.15 also prepared Ex.P26-Rough Sketch at the

scene of offence. P.W.15 also got photographed the scene and

the photographs were marked as Ex.P27. P.W.15 secured the

presence of P.Ws.2, 5 and others and recorded their statements.

On the same day at about 8.30 p.m., Dog Squad came from

Ongole. PW.9-Armed Reserve Police Constable in Dog Squad

took the dog squad to the dead body of the deceased and after

smelling, the dog led to the house of the accused and pulled the

9

quilted cloth kept under a napa stone by its legs. The dog also

went near the cycle kept under Neem tree which belonged to the

accused. The panchanama was marked as Ex.P9. P.W.15 also

prepared route map from canal to the house of the accused and

returning again to the canal. Ex.P28 is route map. Then, P.W.15

recorded statement of P.W.9. P.W.15 rushed to the house of the

accused along with P.W.8 and L.W.16 and minutely observed his

house. P.W.15 seized quilted cloth, red colour sandal slippers

and one atlas cycle under Ex.P11-Panchanama in the presence

of P.W.8 and L.W.16 and they were marked as M.Os.9 to 11.

P.W.15 prepared Ex.P29-Rough Sketch at the house of the

accused. On the same day, P.W.15 examined some of the

witnesses. On 10-07-2021, P.W.15 held inquest over the dead

body of the deceased in the presence of P.W.8 and others.

Inquest report was marked as Ex.P2. In the inquest report, it was

opined by the mediators that the accused committed rape on the

deceased and killed her and to screen away the evidence, the

accused threw the dead body into canal by packing in a plastic

bag. P.W.15 added Sections 366, 342 and 376-AB IPC and

Section 6 of 2012 Act by filing Ex.P3-Memo before learned

Judicial I Class Magistrate, Giddalur. Thereafter, P.W.15 sent the

10

dead body for conducting post mortem examination. P.W.13-Civil

Assistant Surgeon, Community Health Centre, Giddalur,

conducted autopsy over the dead body of the deceased on

10-07-2021. P.W.13 preserved some items for expert opinion

and the preserved items were sent to Regional Forensic Science

Laboratory, Guntur, for expert opinion. R.F.S.L. Report was

marked as Ex.P23. After receipt of R.F.S.L. Report, P.W.13 gave

his final opinion under Ex.P24.

On 10-07-2021, P.W.16-the then Deputy Superintendent of

Police, Disha Women Police Station, having received instructions

from the Superintendent of Police, Prakasam District, took up

further investigation. P.W.16 received C.D. file from P.W.14. On

the same day, P.W.16 visited Ambavaram Village and examined

the scene of offence in the presence of P.W.8 and L.W.16.

P.W.16 once again examined P.Ws.1 to 4 and others and

recorded their statements. On 11-07-2021, on the requisition of

P.W.16, P.W.7-Headmaster, M.P.U.P. School, Ambavaram

Village, issued Ex.P7-Certificate which mentions the date of birth

of the deceased as 19-09-2014 and also issued Ex.P8-Certificate

certifying that the deceased was a bona fide student at the

institution studying III Class as on the date of offence. P.W.16

11

also recorded the statement of P.W.7. On the same day at about

2.30 p.m., on credible information, P.W.16 arrested the accused

near RTC Bus Stand, Giddalur, in the presence of P.W.8 and

L.W.16. The accused confessed about the commission of

offence. Panchanama for arrest and confession was marked as

Ex.P13. P.W.16 seized clothes worn by the accused under a

cover of panchanama and they were marked as M.Os.15 to 17.

The clothes were stained with blood and semen. The accused

led P.W.16 and mediators to his house where he committed rape

on the deceased and caused her death. The accused also led

the police and mediators to the place where he threw the dead

body into the canal. Once again, P.W.16 prepared Ex.P15-

Observation Report in the presence of P.W.8 and L.W.16.

P.W.16 produced the accused before concerned Court and the

accused was remanded to judicial custody. On 13-07-2021,

P.W.16 filed a memo before the Court concerned seeking to send

the accused for conducting potency test on him. P.W.12-the then

Assistant Professor, Department of Forensic Medicine, Guntur

Medical College, Guntur, conducted potency test on the accused

and issued Ex.P20-Potency Certificate opining that there is

nothing to suggest that the accused is not capable of performing

12

sexual intercourse. P.W.16 also forwarded the material objects to

Forensic Science Laboratory, Mangalagiri, for DNA analysis. On

14-07-2021, P.W.16 filed a memo-Ex.P41 before concerned

Court for collecting blood samples of the accused for developing

DNA profile. As per the orders of learned magistrate, P.W.16

forwarded the accused to Forensic Science Laboratory,

Mangalagiri, along with a requisition under Ex.P42. DNA report

was marked as Ex.P23. After receipt of RFSL Report and post

mortem report and after completion of investigation, P.W.16 filed

charge sheet.

7. In support of its case, the prosecution examined P.Ws.1 to

16 and got marked Exs.P1 to P44 apart from exhibiting M.Os.1 to

17.

8. When the accused was examined under Section 313

Cr.P.C., he denied the incriminating evidence appearing against

him and reported no defence evidence.

9. Accepting the evidence of prosecution witnesses, the trial

Court convicted the accused as aforesaid.

10. Heard Sri I.V.N.Raju, learned counsel appearing for the

appellant-accused, and Sri M.Lakshmi Narayana, learned Public

Prosecutor appearing for the respondent-State.

13

11. We have carefully analyzed the entire evidence available

on record. There are no eyewitnesses to the incident and the

prosecution rests its case on circumstantial evidence. The first

circumstance relied upon by the prosecution is last seen theory;

the second circumstance relied upon by the prosecution is the

accused carrying the dead body in a plastic bag on his cycle on

the fateful day at the relevant point of time; the third circumstance

relied upon by the prosecution is the accused throwing the plastic

bag containing the dead body of the deceased in a dry canal and

the last circumstance relied upon by the prosecution is medical

evidence adduced by P.Ws.10 to 13 coupled with Exs.P18 to P21

and R.F.S.L. Reports-Exs.P22 and P23.

12. To substantiate the first circumstance i.e. last seen theory,

the prosecution examined mother and grandmother of the

deceased as P.Ws.2 and 5 respectively. P.W.2 in her evidence

stated that on 08-07-2021, the deceased was playing with other

children as schools were closed during corona pandemic. After

playing with children, the deceased returned back and asked her

father for one rupee and thereafter, the deceased went and

purchased some snacks and returned back home. The deceased

asked P.W.2 for drinking water. P.W.2 went inside and brought

14

drinking water and she noticed the accused taking the deceased

by putting his hand on her shoulders. P.W.2 further stated that

she was under the impression that the deceased would return

back along with the accused as he is uncle by courtesy to the

deceased. P.W.2 waited till 5 p.m. in the evening but the

deceased did not return. P.W.5 in her evidence also stated that

when she questioned the deceased, the latter replied that she

went to bring Raja Khaini for the accused and as the same was

not available, she was going to the accused for returning the

money. P.Ws.2, 5 and other relatives searched for the deceased

and they found that the accused and the deceased were missing.

Though P.Ws.2 and 5 were cross-examined at length, the

defence could not elicit anything adverse to the prosecution

version. The evidence of P.Ws.2 and 5 further disclosed that on

the next day at about 3 p.m., on information, they went to the

canal and found the dead body of the deceased in a plastic bag.

As such, the evidence of P.Ws.2 and 5 clinchingly established

that the deceased was last seen in the company of the accused.

13. Coming to the second circumstance i.e. the accused

carrying the dead body of the deceased by packing in a plastic

bag on his cycle and going towards the canal, the evidence of

15

P.Ws.3 and 4, who are husband and wife residing in the same

line where the accused and P.W.2 were residing, is available on

record. P.W.3 in his evidence stated that he is eking out his

livelihood by running auto rickshaw; that on the fateful day at

about 8 a.m., he left the house and returned back at about 3 p.m.

for taking lunch and that at that time, he noticed the accused

carrying a plastic bag on his cycle and going towards western

side of the village. P.W.4 also deposed in the same lines stating

that she found the accused carrying a plastic bag on his cycle

and going towards western side of the village. Both P.Ws.3 and 4

were under the impression that the accused was carrying some

articles on his cycle for selling the same for the purpose of

consuming alcohol. They also found the accused coming back

and keeping his cycle under a tree in front of his house and went

to bazaar. It is the further evidence of P.Ws.3 and 4 that at about

5 p.m., they came to know that the daughter of P.W.2 was

missing. They further stated that the accused also found missing

in the village thereafter; that on the next day, they went to the

canal and found the dead body of the deceased and that they

informed about the accused carrying a plastic bag on his cycle to

P.Ws.1 and 2. From the evidence of P.Ws.3 and 4, the

16

prosecution is also able to prove that the accused carried the

dead body of the deceased by packing it in a plastic bag towards

western side of the village and returned back after sometime and

thereafter absconded from the village.

14. To substantiate the third circumstance, i.e. the accused

throwing the dead body in dry canal, relied upon by the

prosecution, the prosecution examined P.W.6 who is also

resident of the same village. P.W.6 in her evidence stated that on

the fateful day at the relevant point of time, while she was

returning from fields after attending coolie work and when she

reached near Sudda Bavi, she found the accused removing the

plastic bag from his cycle and throwing the same in dry canal and

she thought that the accused might have thrown some unused

vessels into the canal. P.W.6 further stated that on the same

day, she came to know that the daughter of P.W.2 was missing

and she also went along with P.W.2 in search of the deceased;

that on the next day at about 3 p.m., she also went to dry canal

and found the dead body of the deceased in a plastic bag and

that she immediately informed P.Ws.1, 2 and others that she saw

the accused while throwing the plastic bag into the canal on the

fateful day. As such, the evidence adduced through P.W.6

17

establishes the factum of throwing the dead body of the deceased

by the accused into dry canal. The prosecution is therefore able

to prove the last seen theory, the accused carrying the dead body

of the deceased in a plastic bag and throwing the same in dry

canal.

15. Admittedly, on the information given by L.W.5, P.W.1 went

to the canal and found the dead body of the deceased in a plastic

bag. P.W.1 immediately rushed to police station and lodged

Ex.P1-Report to P.W.14 on 09-07-2021. The above evidence

adduced by the prosecution clearly established the link of chain of

events to connect that the accused committed the offences

against the deceased. The prosecution also established the age

of the deceased by examining P.W.7 who issued Exs.P7 and P8.

16. Coming to the medical evidence, P.W.12-the then Assistant

Professor, Department of Forensic Medicine, Guntur Medical

College, Guntur, issued Ex.P20-Potency Certificate opining that

there is nothing to suggest that the accused is not capable of

performing sexual intercourse. P.W.13-Civil Assistant Surgeon,

Specialist at Community Health Centre, Giddalur, conducted

autopsy over the dead body of the deceased and found the

following injuries:

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“Laceration of 2.5 centimetres x 2 centimetres x Bone Deep

2 centimetres above the left eyebrow-forehead;

Laceration of 3.5 centimetres x 2.5 centimetres x Bone

Deep 32 centimetres above the left eyebrow;

Lateral cantus of left eye;

Excoriation of skin 4 centimetres x 3 centimetres on the left

collar bone-insect eaten (Ant bite);

Excoriation of skin 6 centimetres x 2 centimetres o the neck

anterior aspect-insect eaten (Ant bite);

Contusion of 2x1 centimetres below left clavicle;

Linear contusion of 3 centimetre on the left angle of mouth;

and

Eccentric contusion of 3 centimetres radius with clear area

in the centre on right cheek – bite marks."

P.W.13 preserved the following items for expert opinion:

"Swabs are collected from

1. Labia Majora,

2. Perennial Region and

3. Vaginal Swab;

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Sides-Smear collected from 1. Smear from vaginal cavity –

3 in number, 2. Smear from anus – 1 in number and 3.

Smear from stains of undergarments – 1 in number."

P.W.13 gave his final report opining that the cause of death of the

deceased is due to multiple injuries associated with sexual

assault and that as per DNA analysis report, the DNA extracted

from vaginal douching is matching with the blood sample

collected from the accused at Andhra Pradesh Forensic Science

Laboratory, Mangalagiri. P.W.13 issued post mortem report-

Ex.P21 and final report-Ex.P24. The evidence adduced through

P.WS.12 and 13 coupled with Exs.P20 to P24 clinchingl y

established that it is the accused who killed the deceased after

committing rape on her. As such, the prosecution is able to prove

the guilt of the accused beyond reasonable doubt.

17. Insofar as sentence is concerned, the trial Court imposed

death penalty on two counts. It is settled law that unless a case

falls under rarest of rare cases, capital punishment cannot be

imposed. In Bachan Singh Vs. State of Punjab

1

, the Hon'ble

Apex Court held at paragraph Nos. 206 and 209 as under:

"206. Dr Chitale has suggested these mitigating factors:

1

AIR 1980 SC 898

20

Mitigating circumstances—

In the exercise of its discretion in the above cases, the

court shall take into account the following circumstances:

(1) That the offence was committed under the

influence of extreme mental or emotional

disturbance.

(2) The age of the accused. If the accused is

young or old, he shall not be sentenced to

death.

(3) The probability that the accused would not

commit criminal acts of violence as would

constitute a continuing threat to society.

(4) The probability that the accused can be

reformed and rehabilitated. The State shall by

evidence prove that the accused does not

satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the

case the accused believed that he was

morally justified in committing the offence.

(6) That the accused acted under the duress or

domination of another person.

(7) That the condition of the accused showed

that he was mentally defective and that the

said defect impaired his capacity to

appreciate the criminality of his conduct.

209. There are numerous other circumstances justifying

the passing of the lighter sentence; as there are

countervailing circumstances of aggravation. “We

21

cannot obviously feed into a judicial computer all

such situations since they are astrological

imponderables in an imperfect and undulating

society.” Nonetheless, it cannot be over-emphasized

that the scope and concept of mitigating factors in

the area of death penalty must receive a liberal and

expansive construction by the courts in accord with

the sentencing policy writ large in Section 354(3).

Judges should never be bloodthirsty. Hanging of

murderers has never been too good for them. Facts

and Figures, albeit incomplete, furnished by the

Union of India, show that in the past, courts have

inflicted the extreme penalty with extreme

infrequency — a fact which attests to the caution

and compassion which they have always brought to

bear on the exercise of their sentencing discretion in

so grave a matter. It is, therefore, imperative to

voice the concern that courts, aided by the broad

illustrative guide-lines indicated by us, will discharge

the onerous function with evermore scrupulous care

and humane concern, directed along the highroad of

legislative policy outlined in Section 354(3) viz. that

for persons convicted of murder, life imprisonment is

the rule and death sentence an exception. A real

and abiding concern for the dignity of human life

postulates resistance to taking a life through law's

instrumentality. That ought not to be done save in

the rarest of rare cases when the alternative option

is unquestionably foreclosed."

22

18. Learned counsel appearing for the appellant-accused

places reliance on Manoj and others Vs. State of Madhya

Pradesh

2

, wherein the Hon'ble Apex Court held at paragraph

Nos. 214 to 218 as follows:

"214. Capital punishment is prescribed in numerous IPC

offences, including murder, kidnapping for ransom,

rape and injury causing death or leaving a woman in

a vegetative state, rape or gang rape of a child below

12 years' old, dacoity with murder, among other

offences. In Bachan Singh v. State of Punjab

[Bachan Singh v. State of Punjab, (1980) 2 SCC

684 : 1980 SCC (Cri) 580] (hereafter “Bachan

Singh”), this Court had upheld the imposition of death

penalty as an alternate punishment under Section

302IPC on the strength of the 35th Report of the Law

Commission of India (1967), the judgment in

Jagmohan Singh v. State of U.P. [Jagmohan Singh v.

State of U.P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169]

(which had also noted that the 35th Report

advocated for retention) and in several subsequent

cases decided by this Court, in which the death

penalty was recognized to be a deterrent. It laid

emphasis on the then recently added Sections

253(2) and 354(3) Cr.P.C. which provide for

bifurcated pre-sentence hearing and sentencing

2

(2023) 2 SCC 353

23

procedure on conviction of capital offences, to

conclude that this form of punishment continued to

have legislative backing and thereby, represented

the will of the people.

215. It is undeniable that there have been shifts in how It

is undeniable that there have been shifts in how

punishment in capital offences are dealt with. This is

apparent when developments are looked at

holistically, or at a macro level: the amendments to

the Cr.P.C. by Parliament, the 35th and 262nd Law

Commission Reports which stand over 30 years

apart, and the precedents of this Court, across the

decades. Initially, the law imposed a requirement of

written reasons for not imposing death penalty, which

was removed in 1955. In 1973, through further

amendment to the CrPC and insertion of Section

354(3) — life imprisonment became the norm and

imposition of death penalty required “special

reasons”; and through Section 253(2) — sentencing

required separate consideration from the question of

conviction. In both phases i.e. post-1955 and post-

1973, capital punishment was upheld to be

constitutional by five-Judge Benches of this Court in

Jagmohan Singh [Jagmohan Singh v. State of U.P.,

(1973) 1 SCC 20 : 1973 SCC (Cri) 169] and Bachan

Singh [Bachan Singh v. State of Punjab, (1980) 2

SCC 684 : 1980 SCC (Cri) 580] , respectively.

24

216. The 262nd Law Commission Report on Death

Penalty (2015) (hereafter “the 262nd Report”), is a

result of this Court's references in primarily two

cases. Firstly, in Santosh Kumar Satishbhushan

Bariyar v. State of Maharashtra [Santosh Kumar

Satishbhushan Bariyar v. State of Maharashtra,

(2009) 6 SCC 498, para 112 : (2009) 2 SCC (Cri)

1150] (hereafter “Santosh Bariyar”) where, after

taking note of the UN General Assembly Resolution

62/149 [ Adopted on 18-12-2007.] it was pointed out

that credible research was required to shape an

informed discussion and debate, on the contentious

issue of death sentence. Secondly, the judgment in

Shankar Kisanrao Khade v. State of Maharashtra

[Shankar Kisanrao Khade v. State of Maharashtra,

(2013) 5 SCC 546, paras 148-149 : (2013) 3 SCC

(Cri) 402] tasked the Law Commission to resolve the

issue of whether death penalty is a deterrent

punishment, is retributive justice, or serves an

incapacitative goal; and to study the difference in

approach adopted by the judiciary (rarest of rare) and

the executive (what was termed as unknown) while

granting commutation. In attempting to fulfil this

mandate, the Commission discerned an urgent need

for re-examination of its own earlier

recommendations on the death penalty (in its 35th

Report, 1967), given the drastic change in social,

economic, and cultural contexts of the country since

25

the 35th Report, and arbitrariness which has

remained a major concern in the adjudication of

death penalty cases since Bachan Singh [Bachan

Singh v. State of Punjab, (1980) 2 SCC 684 : 1980

SCC (Cri) 580] laid down the foundational principle of

“rarest of rare”.

217. Reflective of changed circumstances and evolving

discourse, the Report marks a shift in the approach

towards the death penalty in India, going so far as to

recommend abolition in all offences, except those

relating to terrorism. A large part of the Report

focusses on courts' discretion and judicial reasoning

when it comes to sentencing. It concludes that death

penalty sentencing in India has been based on an

arbitrary application of the Bachan Singh [Bachan

Singh v. State of Punjab, (1980) 2 SCC 684 : 1980

SCC (Cri) 580] principle, and has become Judge-

centric, based on the personal predilection of Judges

— a concern which was alluded to even by this Court

in Swamy Shraddananda (2) v. State of Karnataka

[Swamy Shraddananda (2) v. State of Karnataka,

(2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] and

analysed extensively again in Santosh Bariyar

[Santosh Kumar Satishbhushan Bariyar v. State of

Maharashtra, (2009) 6 SCC 498, para 112 : (2009) 2

SCC (Cri) 1150] , followed by Sangeet v. State of

Haryana [Sangeet v. State of Haryana, (2013) 2 SCC

452 : (2013) 2 SCC (Cri) 611] , Mohd. Farooq Abdul

26

Gafur v. State of Maharashtra [Mohd. Farooq Abdul

Gafur v. State of Maharashtra, (2010) 14 SCC 641:

(2011) 3 SCC (Cri) 867], and more recently in

Chhannu Lal Verma v. State of Chhattisgarh

[Chhannu Lal Verma v. State of Chhattisgarh, (2019)

12 SCC 438 : (2019) 4 SCC (Cri) 402] (hereafter

“Chhannu Lal Verma”).

The death penalty framework and how to apply

it for “principled sentencing”

218. This Court in Bachan Singh [Bachan Singh v.

State of Punjab, (1980) 2 SCC 684 : 1980 SCC

(Cri) 580] while upholding the constitutionality of

capital punishment, categorically ruled that the

new CrPC of 1973 marked a shift as it

bifurcated the criminal trial to include a pre-

sentence hearing [under Section 235(2)], and

further mandated the sentencing court to outline

the “special reasons” [under Section 354(3)] or

absence of them, by considering circumstances

both of the crime and the criminal. The Court

also noted that while broad guidelines or

indicators may be given, they cannot be put into

water-tight compartments that curb discretion of

any Judge to do justice in a given individual

case: (SCC pp. 739 & 748, paras 163 & 201)

27

“163. … Now, Section 235(2) provides for a

bifurcated trial and specifically gives the

accused person a right of pre-sentence hearing,

at which stage, he can bring on record material

or evidence, which may not be strictly relevant

to or connected with the particular crime under

inquiry, but nevertheless, have, consistently with

the policy underlined in Section 354(3), a

bearing on the choice of sentence. The present

legislative policy discernible from Section 235(2)

read with Section 354(3) is that in fixing the

degree of punishment or making the choice of

sentence for various offences, including one

under Section 302 of the Penal Code, the court

should not confine its consideration “principally”

or merely to the circumstances connected with

the particular crime, but also give due

consideration to the circumstances of the

criminal.

***

201. … As we read Sections 354(3) and 235(2)

and other related provisions of the 1973 Code, it

is quite clear to us that for making the choice of

punishment or for ascertaining the existence or

absence of “special reasons” in that context, the

court must pay due regard both to the crime and

the criminal. What is the relative weight to be

given to the aggravating and mitigating factors,

28

depends on the facts and circumstances of the

particular case. More often than not, these two

aspects are so intertwined that it is difficult to

give a separate treatment to each of them. This

is so because “style is the man”. In many cases,

the extremely cruel or beastly manner of the

commission of murder is itself a demonstrated

index of the depraved character of the

perpetrator. That is why, it is not desirable to

consider the circumstances of the crime and the

circumstances of the criminal in two separate

watertight compartments. In a sense, to kill is to

be cruel and therefore all murders are cruel. But

such cruelty may vary in its degree of culpability.

And it is only when the culpability assumes the

proportion of extreme depravity that “special

reasons” can legitimately be said to exist.”

(Emphasis in original)”

Placing reliance on the aforesaid judgment, learned counsel

appearing for the appellant-accused submitted that the trial Court

has not even considered the possibility of reformation of the

accused and that the case on hand does not fall under rarest of

rare cases to impose capital punishment and the mitigating

circumstances submitted by the authorities would suffice that

capital punishment is not warranted in the case on hand.

29

19. By order dated 12-07-2023, this Court directed the District

Collector, Prakasam District, the Superintendent of Police,

Prakasam District, and the Superintendent, Central Prison,

Rajamahendravaram, to submit their reports in terms of the

judgment of the Hon'ble Supreme Court in Manoj and others (2

nd

supra). Accordingly, reports are submitted by the authorities

concerned. A perusal of the reports submitted by the authorities

would go to show that wife of the accused discarded him and she

has been residing elsewhere along with her minor daughter; that

there is no previous involvement of the accused in criminal cases

and that parents of the accused are eking out their livelihood by

doing coolie works and they are residing with their elder daughter.

20. The Hon'ble Apex Court in Manoj and others (2

nd

supra)

held at paragraph Nos. 234 to 236 as follows:

"Theories of punishment

234. The 262nd Report speaks extensively to the

penological justification of the death penalty. It finds that

there is inconclusive evidence that this form of punishment

has more of a deterrent effect, in comparison to life

imprisonment. Dismissing the retributive theory of

punishment on the ground that it suffers from lack of

guidance on quantifying the punishment that would be

appropriate to impose, it categorically states that:

30

“7.1.2. Capital punishment fails to achieve any

constitutionally valid penological goals.

7.1.3. Focusing on death penalty as the ultimate

measure of justice to victims, the restorative and

rehabilitative aspects of justice are lost sight of.

Reliance on the death penalty diverts attention from

other problems ailing the criminal justice system such

as poor investigation, crime prevention and rights of

victims of crime.”

235. While the 262nd Report recommends abolition

of the death penalty on this ground, in addition to

sentencing having become Judge-centric or arbitrary, it

has not prompted parliamentary intervention. Whether

the death penalty deserves a relook [as recommended

by Kurian Joseph, J. (dissenting) in Chhannu Lal Verma

[Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12

SCC 438 : (2019) 4 SCC (Cri) 402] ], in light of the

262nd Law Commission Report, evolving jurisprudence,

public discourse and international standards of human

rights, is outside the purview of this Court's jurisdiction

given the Constitution Bench decision in Bachan Singh

[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 :

1980 SCC (Cri) 580] , and a question best left for the

legislature to critically consider. In this backdrop, what

this Court can do, is try and bolster the existing

sentencing framework. This is possible only by giving

true meaning to the existing guidelines (without falling

into the trap of “categorizing” crimes that automatically

31

warrant death penalty). To do so, this Court finds it

necessary to lay out certain practical guidelines

(elaborated below) that can facilitate consideration of

mitigating circumstances as recognized in Bachan

Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC

684 : 1980 SCC (Cri) 580] , and consequently ensure

uniform application of this framework.

236. The 262nd Report recognized the paradigm

shift, in policy and discourse, towards a reformative and

rehabilitative response to crime, and the development

of jurisprudence such that adjudging a case to be

“rarest of rare” was not sufficient, and special emphasis

had to be placed in considering whether the offender is

amenable to reform. Implicit in this shift is the

understanding that the criminal is not a product of only

their own decisions, but also a product of the State and

society's failing, which is what entitles the accused to a

chance of reformation. Thus, making life imprisonment

the norm, and death penalty the exception. In Lehna v.

State of Haryana [Lehna v. State of Haryana, (2002) 3

SCC 76 : 2002 SCC (Cri) 526] while deciding whether

the facts in that case were appropriate for death

penalty, traced this shift in approach : (SCC pp. 83-84,

para 14)

“14. … Section 302IPC prescribes death or life

imprisonment as the penalty for murder. While doing so,

the Code instructs the court as to its application. The

changes which the Code has undergone in the last

32

three decades clearly indicate that Parliament is taking

note of contemporary criminological thought and

movement. It is not difficult to discern that in the Code,

there is a definite swing towards life imprisonment.

Death sentence is ordinarily ruled out and can only be

imposed for “special reasons”, as provided in Section

354(3). There is another provision in the Code which

also uses the significant expression “special reason”. It

is Section 361. Section 360 of the 1973 Code re-enacts,

in substance, Section 562 of the Criminal Procedure

Code, 1898 (in short “the old Code”). Section 361 which

is a new provision in the Code makes it mandatory for

the court to record “special reasons” for not applying the

provisions of Section 360. Section 361 thus casts a duty

upon the court to apply the provisions of Section 360

wherever it is possible to do so and to state “special

reasons” if it does not do so. In the context of Section

360, the “special reasons” contemplated by Section 361

must be such as to compel the court to hold that it is

impossible to reform and rehabilitate the offender after

examining the matter with due regard to the age,

character and antecedents of the offender and the

circumstances in which the offence was committed.

This is some indication by the legislature that

reformation and rehabilitation of offenders and not mere

deterrence, are now among the foremost objects of the

administration of criminal justice in our country. Section

361 and Section 354(3) have both entered the statute

33

book at the same time and they are part of the

emerging picture of acceptance by the legislature of the

new trends in criminology. It would not, therefore, be

wrong to assume that the personality of the offender as

revealed by his age, character, antecedents and other

circumstances and the tractability of the offender to

reform must necessarily play the most prominent role in

determining the sentence to be awarded. Special

reasons must have some relation to these factors.

Criminal justice deals with complex human problems

and diverse human beings. A Judge has to balance the

personality of the offender with the circumstances,

situations and the reactions and choose the appropriate

sentence to be imposed.”

(Emphasis supplied)"

In view of the principle laid down in the aforesaid judgment, with

an advent of goal of reformation in the recent past, the society

must stride towards reformation and rehabilitation.

21. In Sundar @ Sundarrajan Vs. State by Inspector of

Police

3

,

4

the Hon’ble Apex Court held thus: (paragraphs 63, 64 &

76)

"63. In Santa Singh v State of Punjab (1976) 4 SCC 190,

a two judge Bench of this Court highlighted the

requirement of having a separate sentencing hearing

3

2023 LiveLaw (SC) 217

34

in view of Section 235(2) of the CrPC and noted that

the stage of sentencing was as important a stage in

the process of administering criminal justice as the

adjudication of guilt.

64. The judgment of the majority in the Constitution

Bench decision in Bachan Singh v State of

Punjab (1980) 2 SCC 684 reiterated the

importance of a sentencing hearing. The Court

noted that:

“151. Section 354(3) of the CrPC, 1973, marks a

significant shift in the legislative policy underlying

the Code of 1898, as in force immediately before

April 1, 1974, according to which both the

alternative sentences of death or imprisonment for

life provided for murder and for certain other

capital offences under the Penal Code, were

normal sentences. Now according to this changed

legislative policy which is patent on the face of

Section 354(3), the normal punishment for murder

and six other capital offences under the Penal

Code, is imprisonment for life (or imprisonment for

a term of years) and death penalty is an exception.

[…]

152. In the context, we may also notice Section

235(2) of the Code of 1973, because it makes not

only explicit, what according to the decision in

Jagmohan's case was implicit in the scheme of

the Code, but also bifurcates the trial by providing

35

for two hearings, one at the pre-conviction stage

and another at the pre-sentence stage.

[…]

163. […] Now, Section 235(2) provides for a

bifurcated trial and specifically gives the accused

person a right of pre-sentence hearing, at which

stage, he can bring on record material or evidence,

which may not be strictly relevant to or connected

with the particular crime under inquiry, but

nevertheless, have, consistently with the policy

underlined in Section 354(3) a bearing on the

choice of sentence. The present legislative policy

discernible from Section 235(2) read with Section

354(3) is that in fixing the degree of punishment or

making the choice of sentence for various

offences, including one under Section 302, Penal

Code, the Court should not confine its

consideration “principally” or merely to the

circumstances connected with particular crime, but

also give due consideration to the circumstances

of the criminal.”

(Emphasis supplied).

…

76. In Rajendra Pralhadrao Wasnik v State of

Maharashtra (2019) 12 SCC 460, a three judge bench

of this Court took note of the line of cases of this Court

which underline the importance of considering the

probability of reform and rehabilitation of the convicted

36

accused before sentencing him to death. The court

observed:

“43. At this stage, we must hark back to Bachan

Singh and differentiate between possibility,

probability and impossibility of reform and

rehabilitation. Bachan Singh requires us to

consider the probability of reform and rehabilitation

and not its possibility or its impossibility. […]

45. The law laid down by various decisions of this

Court clearly and unequivocally mandates that the

probability (not possibility or improbability or

impossibility) that a convict can be reformed and

rehabilitated in society must be seriously and

earnestly considered by the courts before

awarding the death sentence. This is one of the

mandates of the “special reasons” requirement of

Section 354(3) Cr.P.C. and ought not to be taken

lightly since it involves snuffing out the life of a

person. To effectuate this mandate, it is the

obligation on the prosecution to prove to the court,

through evidence, that the probability is that the

convict cannot be reformed or rehabilitated. This

can be achieved by bringing on record, inter alia,

material about his conduct in jail, his conduct

outside jail if he has been on bail for some time,

medical evidence about his mental make-up,

contact with his family and so on. Similarly, the

37

convict can produce evidence on these issues as

well.

46. If an inquiry of this nature is to be conducted,

as is mandated by the decisions of this Court, it is

quite obvious that the period between the date of

conviction and the date of awarding sentence

would be quite prolonged to enable the parties to

gather and lead evidence which could assist the

trial court in taking an informed decision on the

sentence. But, there is no hurry in this regard,

since in any case the convict will be in custody for

a fairly long time serving out at least a life

sentence.

47. Consideration of the reformation, rehabilitation

and reintegration of the convict into society cannot

be overemphasized. Until Bachan Singh, the

emphasis given by the courts was primarily on the

nature of the crime, its brutality and severity.

Bachan Singh placed the sentencing process into

perspective and introduced the necessity of

considering the reformation or rehabilitation of the

convict. Despite the view expressed by the

Constitution Bench, there have been several

instances, some of which have been pointed out in

Bariyar and in Sangeet v. State of Haryana where

there is a tendency to give primacy to the crime

and consider the criminal in a somewhat

secondary manner. As observed in Sangeet “In the

38

sentencing process, both the crime and the criminal

are equally important.” Therefore, we should not forget

that the criminal, however ruthless he might be, is

nevertheless a human being and is entitled to a life of

dignity notwithstanding his crime. Therefore, it is for the

prosecution and the courts to determine whether such

a person, notwithstanding his crime, can be reformed

and rehabilitated. To obtain and analyze this

information is certainly not an easy task but must

nevertheless be undertaken. The process of

rehabilitation is also not a simple one since it involves

social reintegration of the convict into society. Of

course, notwithstanding any information made

available and its analysis by experts coupled with the

evidence on record, there could be instances where

the social reintegration of the convict may not be

possible. If that should happen, the option of a long

duration of imprisonment is permissible.

(Emphasis supplied)”

The Hon'ble Apex Court observed that the process of

rehabilitation is not a simple one since it involves social

reintegration of the convict into society.

22. Criminal Justice System is more punitive than intended.

The system is touted to be reformable and rehabilitative. The

objectives of the Indian Criminal Justice System include

penalizing, reforming and rehabilitating the offender. Reformation

39

is its final goal as the system asserts to be more rehabilitative

than retributive.

23. When such is the view taken by the Hon'ble Apex Court in

the recent past and having regard to the mitigating circumstances

stated supra, this Court is of the view that death sentence

imposed on the accused is harsh in the facts and circumstances

of the present case.

24. For the aforementioned reasons, the death sentence

imposed on the accused under two counts i.e. for the offence

under Section 302 IPC and Section 6 read with Section 5 (l) (m)

(r) of 2012 Act is modified, instead the accused is sentenced to

suffer rigorous imprisonment for a period of 20 years without any

reprieve or remission and also to pay a fine of Rs.500/-, in default

to suffer simple imprisonment for a period of three months, under

each count i.e. under Section 302 IPC and Section 6 read with

Section 5 (l) (m) (r) of 2012 Act. The conviction and sentence

recorded for the offences under Sections 201, 342, 366 and

376-AB IPC shall remain unaltered. All the substantive

sentences are directed to run concurrently. Sentence of

imprisonment already undergone by the appellant-accused shall

be given set off under Section 428 Cr.P.C.

40

25. With the above modification in sentence, the criminal

appeal is partly allowed and the reference is answered

accordingly. Pending miscellaneous applications, if any, shall

stand disposed of in consequence.

___________________

K.SURESH REDDY, J.

_______________________

K.SREENIVASA REDDY, J.

Date: 23-10-2024,

Note: L.R. copy to be marked.

B/O

JSK

41

HON'BLE SRI JUSTICE K.SURESH REDDY

AND

HON'BLE SRI JUSTICE K.SREENIVASA REDDY

REFERRED TRIAL No. 1 OF 2023

AND

CRIMINAL APPEAL No. 191 OF 2023

(Common judgment of the Division Bench delivered by

Hon'ble Sri Justice K.Suresh Reddy)

DATE: 23

RD

OCTOBER, 2024

JSK