Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1354 OF 2012

RAM DEO PRASAD … APPELLANT

VERSUS

STATE OF BIHAR … RESPONDENT

J U D G M E N T

Aftab Alam,J.

1.The appellant Ram Deo Prasad has been awarded death penalty for

raping and inflicting injuries to a four year old child causing her death.

2.The prosecution case is based on the statement of one Mohd.

Kamruddin Mian made before Sub-Inspector, Birendra Kumar Pandey of

Siwan Town P.S. on December 21, 2004 at 8:15 a.m. at the Sadar Hospital,

Siwan. Mohd. Kamruddin stated that on the previous night after finishing

their meal at about 8:30 p.m. his family had gone to sleep at his house in

village Badka Gaon, P.S. Pachrukhi District Siwan. His four year old

1

Page 2 daughter Laila Khatoon was sleeping by the side of her grandmother on the

outer verandah of the house and on the other side of the straw bed, the girl’s

mother was sleeping with her infant child. In the middle of the night, the

Informant who was sleeping in an inside room came out to relieve himself

and found Laila Khatoon missing from the side of her grandmother. A search

started for the girl and then his neighbour, Suman Kumar Sah (PW.2) told

them that just a little while ago he had seen the appellant swiftly running

away towards east, carrying a girl child in his arms who was crying. As

informed by Suman Sah, he (the Informant) and the villagers assembled there

proceeded towards east in search (of the child). After going for about a

kilometer, they heard the sound of heavy foot-steps and on going in the

direction of the sound they saw that the appellant, who was fleeing away with

the child, flung the child in the wheat field (by the side of the pathway) and

ran away. On going to the child, he found that it was his missing daughter.

She was moaning and bleeding from her private parts. The informant further

stated that he fully believed that the appellant after committing rape on her

child was taking her away with the intent to kill her and to hide the body

somewhere.

2

Page 3 3.The statement was reduced to writing, as the fard-e-beyan (Exhibit 4)

by Sub-Inspector, Birendra Kumar Pandey (PW.6) and was duly signed by

the Informant and a witness, apart from the Sub-Inspector recording it. It was

dispatched to Pachrukhi police station, within the jurisdiction of which the

offence was committed, and there the recorded statement was incorporated in

the formal FIR (Exhibit 1), registered as Pachrukhi P.S. case No.131/2004

dated December 21, 2004 under section 376 of the Penal Code.

4.The child Laila Khatoon died at the Sadar Hospital Siwan on the same

day and consequently section 302 of the Penal Code was also added to the

case.

5.On the following day (December 22, 2004) at 11:00 a.m. the

Investigating Officer of the case (PW.4) went to the collector’s office (in

Siwan town) for a meeting in connection with the preparations for the

elections that were to be held shortly. There he was told by the officer in-

charge of the Siwan Town P.S. that at 9.00 that morning the appellant was

caught at the Siwan bus-stand and he was detained at the Town P.S. The

Investigating Officer went to the Town P.S., prepared the arrest memo of the

3

Page 4 appellant and sent him for production before the Magistrate with the request

to take him in judicial custody. The appellant was, thus, produced before the

Magistrate on December 22, 2004 and as per the request of the Investigating

Officer, was remanded to judicial custody.

6.It did not occur to the Investigating Officer to take the appellant on

remand for interrogations or getting him examined by a doctor or seizing his

clothes etc.

7.In course of investigation, the Investigating Officer inspected two sites

as “the place of occurrence”; one, the verandah of the Informant’s house from

where the child was lifted and the other, the wheat field where the child was

said to have been thrown by the appellant; nothing was found of any

significance at either of two places. No attempt was made to find out the spot

where the child was sexually abused and brutalized and where it might have

been possible to find some blood or some other article that could have thrown

any light on the identity of the offender. The “investigation” mainly consisted

of recording the statements of witnesses under section 161 of the Code of

4

Page 5 Criminal Procedure and as it was completed charge-sheet was submitted on

March 30, 2005, naming the appellant as the accused.

8.On the basis of the charge-sheet the appellant was put on trial before

the 1

st

Additional Sessions Judge, Siwan.

9.It needs to be stated here that in support of its case, the prosecution

examined six (6) witnesses before the trial court. PW.6 is the Sub-Inspector

who had recorded the statement of the victim’s father Kamruddin Mian. He

was simply called to formally prove the fard-e-beyan, giving rise to the FIR.

PW.4 is the Investigating Officer. He formally proved the FIR. He also stated

that he had recorded the statements of Rukhsana Khatoon (the mother of the

victim: PW.3), Suman Sah (PW.1), Hasmuddin (not examined), Nasir

(PW.2), Ram Chhabila Prasad (not examined), Gumani Pandit (not

examined) and some others. PW.5 is the doctor who was a member of the

team of doctors which had conducted post-mortem over the body of the child.

She formally proved the post-mortem report.

10.Apart from the two policemen and the doctor the prosecution examined

three other witnesses. PW.1 is Suman Sah, the neighbour of the Informant

5

Page 6 who was the first to say that he had seen the appellant running away, carrying

a girl child who was crying. PW.2 is Nasir, the paternal cousin of the

Informant who was one of the group which had gone in pursuit of the

appellant and who had seen the appellant flinging the child in the wheat field

and making good her escape. PW.3 is Rukhsana Khatoon, the unfortunate

mother of the child. We shall presently see their evidences in greater detail.

But at this stage it is important to note that the Informant, the father of the

child did not appear as one of the witnesses. By the time the trial took place

he had gone somewhere abroad to earn the livelihood.

11.Further, the prosecution took steps to examine two other witnesses

mentioned in the charge-sheet, namely Hasmuddin and Gumani Pandit and

obtained warrants of arrest for their production. They were produced before

the trial court on October 5, 2007 but from the order dated October 30, 2007

passed by the court, it appears that though the prosecution produced the

aforesaid two witnesses, besides one Ram Chhabila Prasad (also named in the

charge-sheet as one of the witnesses), the In-charge Public Prosecutor filed a

petition that the three witnesses were not inclined to support the prosecution

6

Page 7 case and, as such, he was giving them up and was not in favour of examining

them. That petition was disposed of by order dated November 13, 2007 and

the three persons were discharged from giving evidence in the case.

12.At the commencement of the trial, the court framed the charge against

the appellant. It is relevant to see what was said in the charge which is

reproduced below:

“First - That you, on or about the 21

st

day of December 4 at

Badaka Gaon you committed rape on Laila Khatoon hardly aged

about 4 years and thereby committed an offence punishable under

section 376 of the Indian Penal Code and within my cognizance.

Secondly – That you on or about the same date/ day of

same month and same place you committed murder intentionally

and knowingly that the act of rape was likely to cause death of

Laila Khatoon and that thereby committed an offence punishable

section 302 of the Indian penal Code and within my cognizance.

And I hereby direct that you be tried by the said court on

the said charge.

The charge was read over and explained to the accused in

Hindi to which he pleaded not guilty and claimed to be tried.

Dated this 19

day of 04, 2007.”

13.It is, thus, to be seen that the charge is completely silent in regard

to the first part of the prosecution case that immediately after the child

7

Page 8 was missing, the appellant was seen running away carrying in his arms

a girl child who was crying. There was no charge under section 366A

or section 367 of the Penal Code.

14.At the conclusion of the prosecution evidence, the court

examined the appellant under section 313 of the Code of Criminal

Procedure. It is also important to see how the examination under

section 313 took place; hence, the full examination under section 313 is

quoted below.

“Question:Have you heard the statements of the witnesses?

Answer:Yes.

Question:Against you the charge and evidence are that on

20/12/2004 in the night at 12.00 you went to the

house of Kamruddin Miyan s/o Babujaan Miyan,

village Barka Gaon P.S. Pachrukkhi district Siwan

and abducted his daughter Laila Khatoon (6 years).

Answer:No.

Question:There is also evidence against you that you

committed rape on her and flung her in the field and

as a result she died.

Answer:No.

Question:Do you have anything to say in your defense?

8

Page 9 Answer:I have been falsely implicated. The villagers have

wrongly declared me as mad.”

15.This is all! The first question was an empty formality and the second

question was evidently asked even without looking to the charge as there was

no charge of abducting the child from her father’s house against that

appellant. The whole of section 313 was, thus, squeezed into the third and the

last question. We shall advert back to this aspect of the matter later but there

is something else in the appellant’s statement under section 313 which we

cannot fail to notice. There is an allusion to the villagers’ calling him, “mad”.

Unfortunately, this aspect of the matter received absolutely no attention either

in investigation or during trial. We may here clarify that on the basis of that

isolated fragment of a sentence we are not suggesting that the appellant was

of unsound mind. But what we wish to emphasize is that in a case involving

death sentence, the court cannot afford to leave any detail, howsoever small

and apparently insignificant, fully explored.

16.At the conclusion of the trial, the court found the appellant guilty of

committing rape and causing injuries to the child leading to her death and

accordingly, by judgment and order dated September 6, 2008/September 9,

9

Page 10 2008 passed in Sessions Trial No. 417 of 2006, convicted him under sections

376 and 302 of the Penal Code and awarded him the death penalty.

17.Since the punishment given to the appellant was death, the trial court

made a reference under section 366 of the Code of Criminal Procedure which

was registered in the High Court as Death Reference No.15/2008.

18.It needs to be stated here that before the trial court, the appellant was

unrepresented and, therefore, the court had appointed an advocate to defend

him from the panel of lawyers for undefended accused. Further, even after

being punished with death, the appellant did not file any appeal before the

High Court and, thus, what the High Court had before it was only the death

reference made by the trial court. The High Court in its judgment has brushed

aside the fact that no appeal was filed by the appellant, observing as under.

“The respondent has not preferred an appeal,

understandably because he could challenge the findings upon

which the orders of conviction and sentence are based as if he

had preferred an appeal.”

1

Page 11 19.In our view, the High Court, attributed to the appellant, knowledge of

law and the court procedure for which there does not appear to be any basis.

To our mind, the appellant filed no appeal before the High Court either

because of the lack of resources or because he did not fully realize the gravity

of his position and we are unable to accept the view taken by the High Court

for the appellant filing no appeal against the judgment of the trial court giving

him the death penalty.

20.Anyway, since there was no one to represent the appellant in the death

reference, the High Court requested a senior advocate of that court to assist it

in hearing and disposing of the reference and finally by a detailed judgment

dated September 17, 2009 accepted the reference and confirmed the death

penalty awarded to the appellant.

21.After the High Court judgment, the Registry of the Supreme Court

received the jail petition (special leave petition) (death case) on behalf of the

appellant through the Superintendent, Central jail, Buxar, Bihar. Though the

petition was barred by limitation by 42 days, it was not accompanied by any

application for condonation of delay. The jail petition along with copies of

1

Page 12 the judgments passed by the trial court and the High Court were handed over

to the Amicus Curiae, appointed as per the instructions contained in Circular,

dated December 6, 2008. The amicus then drew up and filed a proper special

leave petition on which notice was issued and the execution of the appellant

was stayed by order dated March 19, 2010. Leave to appeal was finally

granted by order dated September 3, 2012.

22.The amicus appointed by the office assisted us to the best of his ability

but we also requested Mr. P.S. Patwalia, learned senior counsel, to assist the

Court in the hearing of the appeal and Mr. Patwalia rendered admirable

assistance to us.

23.Since the appeal involves death penalty, we propose to re-examine all

the issues arising in the case ourselves, independently of any findings arrived

at by the courts below.

24.It is noted above that the prosecution examined six witnesses in support

of its case. Dr. Seema Choudhary (PW.5) is the doctor who was a member of

the Medical Board constituted to examine the dead body of Laila Khatoon.

She stated before the court the findings of the post-mortem and proved the

1

Page 13 post-mortem report which was marked as Ex.3. The evidence of the doctor

coupled with the post-mortem report leaves no room for doubt that the child

was sexually abused and brutalized with utmost cruelty and perversity and

the injuries inflicted upon her in course of the sexual abuse caused her death.

25.Birendra Kumar Pandey (PW.6) is the Sub-Inspector of Police of Siwan

(Town) P.S. who had taken down the statement made by Mohd. Kamruddin

Mian and recorded it as the fard-e-beyan. He identified the fard-e-beyan

which was marked as Ex.4.

26.Mehboob Alam Khan (PW.4) is the Investigating Officer of the case.

There is hardly anything significant in his deposition before the court.

27. This leaves us with the statements of PW.1 to PW.3.

28. Suman Kumar Sah (PW.2) is the Informant’s neighbour. In his

deposition before the court he stated that about two and a half years before

the date of the deposition he woke up one night at about 11- 11.30 for

relieving himself, he saw that a person carrying a child in his arms was going

towards the field of Ram Bachan Mishra. He then went back to sleep. After

10-20 minutes, he saw Mohd. Kamruddin (the Informant), Nasir Mian

1

Page 14 (PW.1), Gumani Pandit (not examined), Ram Chhabila Prasad (not

examined) and others, coming on the road in front of his house. He went out

to meet them and then he came to know that someone had taken away a child

from Kamruddin’s house. He further said that he did not tell them that a

little while ago he had seen someone carrying a child. However, he also

joined them and proceeded with them. He further said that they found a girl

lying in the field of Sachidanand Mishra. The girl was bleeding from her

private parts. The girl was brought to Siwan where she died. He added that

he did not know who had abducted the girl. He concluded by saying that

he knew the appellant who was present in court. At that stage he was

declared hostile by the prosecution and was subjected to cross-

examination. He denied that he had made any statement before the police

that he had seen the appellant taking away the child from the verandah of

Kamruddin and further that in course of search he had seen the appellant with

the child. The Investigating Officer (PW.4), however, stated before the court

that Suman Sah had said before him that he had seen the appellant coming

out from the verandah of Kamruddin and in course of the search too had seen

the appellant with the victim child.

1

Page 15 29.The second witness Nasir Mian (PW.1) stated before the court that

about two and a half years earlier, at about 12:00 in the night, Kamruddin got

up and found that his daughter was missing from the side of his mother with

whom she was sleeping. Kamruddin came to him and then there was an

outcry that the child was missing. He, along with Kamruddin and other

villagers started searching for the child. In course of the search they went to

Suman Sah who told them that the appellant had gone towards east, in the

direction of Ram Bachan Mishra’s orchard, carrying a child. They then went

to Ram Bachan Mishra’s orchard and, lighting the torch there, they saw the

appellant running away with a child. The appellant, on seeing them coming

after him, flung the child in Ram Bachan Mishra’s wheat field. They ran after

him but he succeeded in fleeing away. In the wheat field they found

Kamruddin’s daughter who was about 4 years old. She was injured and was

bleeding from her private parts. They brought the child to the Sadar Hospital,

Siwan, where she passed away the following morning. The mouth of the

child was filled with earth and she was also bleeding from her nose.

1

Page 16 30.In cross-examination he stated that the occurrence took place on a

winter night which was very cold and there was a dense fog on that night. He

also stated that he had produced the torch in the light of which he had

identified the appellant before the darogaji. The torch, however, was not

presented before the court.

31.On an overall scrutiny of the deposition of Nasir Mian we find that he

remained quite firm and unshaken on his part of the story.

32.The third witness, Rukhsana Khatoon (PW.3), is the mother of the

child. She stated that as the child was found missing and a search started,

Suman Kumar Sah one of the neighbours informed that (he had seen) the

appellant going away carrying a child. She then stated about the group of

villagers going in search of and finding the girl whom the appellant had flung

in the field. In the course of cross-examination, however, she said that she

was also a part of the group which had gone in search of the child on the

fateful night and her mother-in-law was also a part of that group.

33.This is all the oral evidence adduced by the prosecution.

1

Page 17 34.We may here broadly divide the prosecution case in two parts. In the

first part, soon after the child was found missing, the appellant was seen close

to the house of the Informant, swiftly going eastwards in the direction of Ram

Bachan Mishra’s fields/orchard carrying in his arms a girl child who was

crying. This was at a point when the child was lifted from the verandah of her

house and before she was subjected to the sexual abuse. In the second part of

the prosecution case the appellant was seen carrying the child and on seeing

the group of villagers coming in pursuit of him he threw down the child in the

wheat field and fled away. This was at a point after the child was subjected to

the sexual abuse and brutality.

35.The first part of the prosecution case, as seen above, did not form part

of the charge. Further, this part of the prosecution case was based on the

solitary evidence of Suman Sah and as he turned hostile, this part of the case

falls to the ground.

36.However, the second part of the case is fully established by the

evidences of Nasir Mian (PW.1) and Rukhsana Khatoon (PW.3). What is

thus established against the appellant is that he was seen carrying the child

1

Page 18 soon after she was sexually abused and brutalized in the most cruel manner

and on seeing the group of villagers coming after him he threw down the

child in the wheat field and ran away. It was, therefore, for him to explain

how the child came in his possession and in the absence of any explanation

the court would be fully justified in invoking section 114 of the Evidence Act

and to hold him guilty of causing the injuries to her private parts leading to

her death. No exception can, therefore, be taken to the appellant’s conviction

under sections 376 and 302 of the Penal Code.

37.But the vital question is that of the sentence to which he should be

liable.

38.Mr. Samir Ali Khan, learned counsel appearing for the State of Bihar,

strongly submitted that the offence committed by the appellant showed not

only extreme cruelty but also great depravity and urged that this Court while

confirming his conviction should also confirm the death penalty awarded to

him by the courts below. In support of his submission he relied upon a

decision of this Court in Rajendra Pralhadrao Wasnik v. State of

Maharashtra

1

. Like the present appellant, Wasnik was also held guilty of

1

(2012) 4 SCC 37

1

Page 19 raping and killing a three year old girl and in his case this Court confirmed

the death penalty awarded to him. It is true that the case of Wasnik relied

upon by Mr. Khan is similar to the case in hand insofar as in both cases girls

of very tender age were subjected to extreme sexual brutality resulting in

their death.

39.There can be no doubt that the offence committed by the appellant is

heinous and revolting but the nature of the offence alone may not in all cases

be the determining factor for bringing the case in the “rarest of rare” category

and to impose the ultimate and irreversible punishment of death. There are

certain features of this case which are not to be found in Wasnik’s case and

make the present case distinguishable from the decision relied upon by Mr.

Khan.

40.In the earlier part of the judgment we have indicated the deficiencies of

investigation. Apart from the post-mortem report there is no medical

evidence. There is not a scrap of forensic evidence of any kind. Even the

torch in the light of which the appellant is said to have been identified in the

cold wintry and foggy night was not produced before the court.

1

Page 20 41.We have also recounted the lapses in the trial proceedings in the

framing of the charge and especially in the examination of the appellant

under section 313 of the Code of Criminal Procedure. On an earlier occasion,

in the decision in Sajjan Sharma v. State of Bihar

2

(to which, one of us, Aftab

Alam J. was a party) this Court had commented upon the careless and the

unmindful way in which examination of the accused under section 313 of the

Code of Criminal Procedure was generally conducted in the State of Bihar.

The present case is another glaring example. It was incumbent upon the trial

court to clearly tell the appellant that according to the prosecution evidence,

the child soon after being sexually abused in the most cruel manner was seen

in his arms and to ask him to explain this very vital circumstance against him.

But the section 313 examination made in this case completely falls short of

the requirements of the law.

42.We have also seen that the appellant was represented before the trial

court by a lawyer appointed by the court from the panel of advocates for

undefended accused. Though facing death penalty, he did not file an appeal

before the High Court and in this Court his appeal came through the Jail

2

(2011) 2 SCC 206

2

Page 21 Superintendent. We presume that the appellant did not have sufficient

resources to engage a lawyer of his own choice and get himself defended up

to his satisfaction.

43.We are very clear that the aforesaid facts and circumstances are also

relevant factors to be taken into consideration while confirming the death

penalty given to an accused.

44.Mr. Patwalia, senior counsel, invited our attention to the decision of

this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra

3

.

In Santosh Kumar, after surveying a large number of decisions on death

penalty, this Court in Paragraph 56 of this judgment observed as under:

“56. At this stage, Bachan Singh informs the content of the

sentencing hearing. The court must play a proactive role to record

all relevant information at this stage. Some of the information

relating to crime can be culled out from the phase prior to

sentencing hearing. This information would include aspects relating

to the nature, motive and impact of crime, culpability of convict,

etc. Quality of evidence adduced is also a relevant factor. For

instance, extent of reliance on circumstantial evidence or child

witness plays an important role in the sentencing analysis. But what

is sorely lacking, in most capital sentencing cases, is information

relating to characteristics and socio-economic background of the

offender. This issue was also raised in the 48

th

Report of the Law

Commission.”

3

(2009) 6 SCC 498

2

Page 22 (emphasis added)

45.Mr. Patwalia submitted that the above passage from the decision in

Santosh Kumar was cited and followed by the Court in Ramesh v. State of

Rajasthan

4

. In Paragraph 68 of the judgment in Ramesh this Court observed

as under:

“68. Practically, the whole law on death sentence was referred to in

Santosh Kumar case. In SCC para 56, the Court observed: (SCC p.

527)

“56. … The court must play a proactive role to record all relevant

information at this stage. Some of the information relating to crime

can be culled out from the phase prior to sentencing hearing. This

information would include aspects relating to the nature, motive and

impact of crime, culpability of convict, etc. Quality of evidence is

also a relevant factor. For instance, extent of reliance on

circumstantial evidence or child witness plays an important role in

the sentencing analysis. But what is sorely lacking, in most capital

sentencing cases, is information relating to characteristics and

socio-economic background of the offender. This issue was also

raised in the 48

th

Report of the Law Commission.”

(emphasis supplied)

The Court, thus, has in a guided manner referred to the quality of

evidence and has sounded a note of caution that in a case where the

reliance is on circumstantial evidence, that factor has to be taken

into consideration while awarding the death sentence. This is also a

case purely on the circumstantial evidence. We should not be

understood to say that in all cases of circumstantial evidence, the

death sentence cannot be given.”

4

(2011) 3 SCC 685

2

Page 23 46.Mr. Patwalia also cited before us the decision of this Court in Amit v.

State of Uttar Pradesh

5

. In the case of Amit, though this Court upheld his

conviction under sections 376 and 302 of the Penal Code finding him guilty

of raping and killing a three year old girl, commuted the death penalty

awarded to him by the courts below.

47.In the overall of facts of the case and for the reasons discussed above

we feel it quite unsafe to confirm the death sentence awarded to the appellant.

Hence, while confirming his conviction under sections 376 and 302 of the

Penal Code, we set aside the death sentence given to the appellant and

substitute it by imprisonment for life that should not be less than actual

imprisonment for a period of 18 years. The case of the appellant for any

remission under the Code of Criminal Procedure may be considered only

after he has served out 18 years of actual imprisonment.

48.In the result, the appeal is dismissed subject to the modification in

sentence.

..…..………………………..J.

(Aftab Alam)

5

(2012) 4 SCC 107

2

Page 24 ..…..………………………..J.

(Ranjana Prakash Desai)

New Delhi;

April 11, 2013

2