REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1523-1524 OF 2019

[Arising out of Special Leave Petition(Crl.)Nos. 9254-

9255/2019 CRL.M.P. Nos. 5704-5705 OF 2017]

Ravishankar @ Baba Vishwakarma ..... Appellants(s)

VERSUS

The State of Madhya Pradesh .....Respondents(s)

JUDGMENT

SURYA KANT, J.

Delay condoned. Leave granted.

2.Hovering between life and death, the appellant assails the judgment

dated 6

th

December, 2016 passed by the High Court of Madhya Pradesh at

Jabalpur whereby the death reference made by the IIIrd Additional

Sessions Judge, Gadarwara, District Narsinghpur (M.P.) has been

confirmed and the appellant’s criminal appeal has been dismissed.

1

Background:

3.The appellant was tried for having committed offences under

Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302

and 201 of the Indian Penal Code (for short IPC) and alternatively under

the corresponding provisions of the Protection of Children from Sexual

Offences Act, 2012 (for short ‘POCSO Act’). Through judgment and order

dated 19

th

July 2016, the Trial Court held the appellant guilty of kidnapping

a 13 year-old girl, committing rape on her, killing her by throttling and

thereafter destroying the evidence by throwing her half naked body in a dry

well. These crimes were held as being ‘rarest of the rare’ and the appellant

was sentenced to death under Section 376-A of the Indian Penal Code,

1860 (I.P.C.). In terms of Section 366 of the Code of Criminal Procedure,

1973 (Cr.P.C.), the Trial Court made a reference to the High Court for

confirmation of the death sentence. The appellant also filed criminal appeal

challenging this judgment and order passed by the Trial Court. The High

Court on 6

th

December 2016, through a common order, both dismissed his

appeal and confirmed the Trial Court’s death reference giving rise to this

special leave petition.

4.At the outset, it must be mentioned that when the appellant’s special

leave petition came up for hearing before a Three Judge Bench of this

Court on 10

th

January, 2018, the following order was passed:

2

“Mr. Arjun Garg, learned counsel for the State prays for two

weeks’ time to argue the matter on the conversion of sentence

from death to life, as we are not inclined to interfere with the

conviction.

xxx xxx xxx”

5.Thus, the limited issue which survives for our consideration is

whether or not the appellant deserves to be imposed with the extreme

sentence of death penalty?

6. As noted by this Court in Bhupinder Sharma v. State of Himachal

Pradesh

1

, that the mandate of not disclosing identities of the victims of

sexual offences under Section 228A of I.P.C. ought to be observed in spirit

even by this Court:

“2. We do not propose to mention name of the victim. Section

228-A of the Indian Penal Code, 1860 (in short the "IPC") makes

disclosure of identity of victim of certain offences punishable.

Printing or publishing name of any matter which may make

known the identity of any person against whom an offence under

Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found

to have been committed can be punished. True it is the

restriction does not relate to printing or publication of judgment

by High Court or Supreme Court. But keeping in view the social

object of preventing social victimization or ostracisms of the

victim of a sexual offence for which Section 228-A has been

enacted, it would be appropriate that in the judgments, be it of

High Court or lower Court, the name of the victim should not be

indicated. We have chosen to describe her as ' victim' in the

judgment.”

We are thus not disclosing the victim’s name and instead are

referring to her as the “deceased” throughout this judgment.

1 (2003) 8 SCC 551

3

Relevant Facts:

7.The necessary facts are to the following effect: P.W.3 (Purushottam

Kaurav – grandfather of the deceased), resident of village Baglai filed a

report at the Police Station at Gotitoria on 22

nd

May, 2015 at about 4.00

p.m. giving information of the disappearance of his 13 year old

granddaughter. The deceased and her 11 year old brother Harinarayan

were children of the informant’s younger son, Satyaprakash and had been

staying with their mother at the latter’s parental home in the neighbouring

village, Chargaon, for the last four months. The deceased visited the

informant’s home in village Baglai with her mother at around 10 a.m. the

previous day. The deceased did a few household chores while her mother

cooked food for the family. Later, she went out to play with her friend who

lived in the neighbourhood. Upon returning back she told her mother that

she was not feeling good and requested that they should return back to

her maternal uncle’s home in Chargaon. Her mother assured her that they

would return later that afternoon and both of them went to sleep. Upon

waking up at 3.00 p.m., the mother discovered that the deceased was not

around. The mother made unsuccessful enquiries in the neighbourhood

and later asked the deceased’s 11 year old brother to go and enquire

whether she had gone to Chargaon on her own. The brother came back in

the evening without any news of the victim. Thinking that their daughter

might have gone to her paternal aunt’s home in the nearby village of

Aadegaon, both parents slept. Next morning enquiries were made at

4

Aadegaon but it was informed that the deceased had not gone there either.

Worried, the mother herself left for her parental home at around 9-10 a.m.

and informed her brother Vishram that the victim was missing. Vishram

and the deceased’s mother set out on a wide search in the neighbourhoods

of Chargaon with little result. Whilst returning back to Baglai, the mother

identified the deceased’s salwar and one chappal on the embankment of

the water-channel which divided the villages of Baglai and Chargaon. Upon

reaching her matrimonial home in Baglai, the mother informed her father-

in-law about her daughter’s disappearance who then approached the

police. P.W.3 thereafter narrated facts of deceased’s disappearance and

gave description of his grand daughter who was studying in Class 6 at that

time. The Police, accordingly, registered a crime case under Section 363,

IPC.

8. Subsequently the police took P.W.3 to the spot where the salwar and

the chappal were recovered. Upon a local search of the area with some

villagers and relatives, the semi-nude body of the deceased was

discovered lying in a supine position in a dry well. The dead body was

taken out of the well and it was duly identified by her grandfather, P.W.3. A

spot map of the place of occurrence was drawn, and Seizure Panchnama

of black colour salwar and one Chappal of the deceased was also

prepared.

9. P.W.20 (Harsha Singh, Senior Scientific Officer) advised the police

5

on handling the body of the deceased and later inspected the decomposing

dead body at 9:45 p.m. at the Government Hospital, Chichli. After noticing

various injuries including ligature marks on the neck, she gave a report that

death of the deceased was homicidal. P.W.12 (Dr. Kinshu Jaiswal)

conducted postmortem of the body next morning at 9 a.m. Examining the

decayed state of the body, P.W. 12 estimated time of death 48-72 hours

before. She noted various injuries on the body including a ruptured hymen,

congested trachea and pale lungs. Vaginal slides were prepared and sent

for inspection. Hyoid bone, femur bone and three jars of the viscera

(containing pieces of stomach, small intestine, heart, lungs, liver, spleen,

kidney as well as separate salt solution sample) were also sent for

examination. Importantly, it was noticed that the skull and vertebrae were

intact. The vaginal slides, salwar and fiber chappal of the deceased were

sent to Forensic Science Laboratory, Sagar (FSL, Sagar) for DNA profiling,

whereas the sealed container(s) with different parts of the deceased’s body

were sent to the Medico-legal Institute, Bhopal for chemical testing.

Subsequently, the dead body of the deceased was handed over to the

family for last rites and statements of some witnesses were recorded under

Section 164 of Cr.P.C. before a Judicial Magistrate.

10.During the course of investigation, blood samples of various

suspects were taken for DNA analysis. As part of the first batch, blood

samples of Hargovind Kaurav, Nandi alias Anand Vanshkar and Baba alias

Ashok Kaurav were taken and sent to FSL, Sagar for DNA matching on 14

th

6

June, 2015. Later on 22

nd

June, 2015 samples of the appellant (Baba alias

Ravishankar Vishwakarma), Roopram alias Ruppu Kaurav and Manoj alias

Halke Yadav was similarly sent for DNA analysis. After confirmation by the

FSL stating that only the DNA extracted from the appellant matched with

that on the vaginal slide of the deceased, the appellant was arrested on

20

th

July, 2015. Charge sheets were filed against him by the investigating

agency on 18

th

September, 2015.

Trial Court’s Analysis:

11.The Trial Court formulated various questions for consideration

including determination of the age of the deceased, factum of kidnapping

by accused, commission of rape, causing death by throttling and

destruction of evidence by dumping the dead body by the appellant.

12.With a view to bring home the appellant’s guilt, the prosecution

examined as many as 24 witnesses, whereas none were examined by the

appellant in defence. A brief summarisation of the testimonies of important

witnesses and evidences has been made hereunder.

13. P.W.1 (Sukhram Kotwar) who was posted as Gram Kotwar at Baglai,

admitted to accompanying the grand father of the deceased (P.W.3) to the

police station to lodge a missing report of the deceased. He also found

location of the deceased’s body and was a witness to seizure of the slipper,

panchnama and later to the collection of three blood samples and arrest of

the appellant by the police.

7

14.P.W. 2 (Shobhabai — mother of the deceased) stated in her

deposition that she knew the appellant, for she had borrowed money from

his family in the past. She claimed to be living in her parental home in

village Chargaon, which was separated by a water channel from her

matrimonial village of Baglai, since the past few months for treatment of an

eye injury. She had returned to her in-laws’ house on the morning of 21

st

May, 2015 with the deceased. When she reached home, the wife and

daughter of the accused came and asked her to repay the borrowed

money. After some time her daughter (the deceased) told her that she was

going to play with her friend Priyanka at her house. The deceased came

back from her friend’s house and told P.W.2 that she was not feeling good

and requested that she be taken back to her maternal uncle’s house in

Chargaon. At about 3.00 p.m., the witness found that her daughter was not

there at their home. Her husband enquired from Priyanka’s house but

came to know that deceased was not there. P.W.2, thereafter, called her

son and sent him to her parental home at Chargaon about 5.00 p.m. Her

son came back home and informed that the deceased was not found in

Chargaon also. She again sent her son to Chargaon to look out for her

properly. It was, however, confirmed that the deceased had not gone to

Chargaon and she could not be found anywhere till 6.00 p.m. Thinking that

the deceased might have gone to her parental aunt’s house in Aadegaon,

P.W.2 and her husband slept for the night. The next morning P.W.2 got a

telephonic call made to Satyaprakash’s sister in Aadegaon but failed to

8

trace the deceased there as well. A search was made on the motorcycle at

the houses of various relatives and while P.W.2 was returning to Baglai

from her parental home along with her nephew, Dharmendra, she spotted

and identified the salwar and slipper of the deceased which were lying on

the roadside on the embankment of the water channel separating Baglai

from Chargaon. P.W.2 then informed her father-in-law, P.W.3, and then the

matter was reported to the Police. The Police thereafter started looking for

her daughter and then she got to know that the dead body of her daughter

was located inside the well of one Darshan Kaurav. P.W.2 did not suspect

anyone at that time. In cross-examination she admitted that she had told

the police that one Abhishek alias Pillu of the village used to offer paan

masala to the deceased and that police had also gone to Baba alias

Ashok’s house for his interrogation and for conducting Narco test but he

fled the next day from the village.

15.P.W.3 (Purushottam Kaurav) — grandfather of the deceased-victim

has deposed regarding lodging of the missing report with the Police and

also stated that he identified the dead body of his granddaughter upon

recovery from a dry well. He too admitted that a person named Baba alias

Ashok was called by the Police but he had fled and that some more

persons were also interrogated by the Police.

16. P.W.4 (Satyaprakash), the father of the deceased, narrated the

efforts put in by him and other relatives for the search of his daughter and

9

how during that search the dead body was found in the dry well

constructed in the field of Darshan Kaurav.

17.P.W.5 (Sharda) who is well acquainted with the appellant as well as

the family of the deceased is also a crucial prosecution witness. He

deposed that on the fateful day at about 3.00 p.m. he, along with his wife

Aalop Bai, was going on a bicycle when both of them spotted the appellant

with the deceased who was wearing a black frock and black pant ‘near the

peepal tree, near the field of Natthu Patel’. He has further stated that his

statement was recorded by the Police two days after the incident and that

“it is true that the Police had committed assault with me also. It is true that

Police had stated that they would arrest the rascal and they committed an

assault so I had stated out of nervousness.” In the very next breath, he,

however, denied that the police had assaulted and were forcing him to give

false testimony before the Court.

18.P.W.6 (Itta alias Kichchu) has stated that about a year prior to the

incident while he had gone to defecate near a reservoir after disposing of

some cowdung, he had seen the appellant feeding biscuits to the

deceased at the water channel near the shrubs. He told this fact to P.W.7

(Nimma Jeeji), who was harvesting sugarcane in the field of one Shatrughn

Patel. In his cross-examination, he admitted that his statement was

recorded one and a half months’ after the incident by the Police.

19.P.W.7 (Nimma Bai) endorsed the statement of P.W.6 to the extent

10

that about one year before the occurrence, P.W.6 had told her that the

appellant was feeding biscuits to the deceased. She has admitted in her

cross-examination that she herself had not seen the appellant feeding

biscuits to the deceased.

20.P.W.10 (Kuldeep Kaurav, a teacher in the Government Middle

School, Chargaon) produced school records to prove that the deceased

was admitted in 6

th

standard on 16

th

June, 2014 and as per the date of her

birth she was hardly 13 years old.

21.P.W.13 (Rajesh Kaurav) who was Patwari, testified that he prepared

spot map of the place of incident and that afterwards he took signatures of

people present in the vicinity and dispatched them to the Station House

Officer. In cross-examination, he admitted that details of the well were not

mentioned in the spot map, but volunteered that the well was abandoned

and had shrubs growing in it and the grass/crops growing outside had

hampered the well’s visibility from the Baglai-Chargaon road which was

situated 20 feet away.

22.P.W.14 (Hargovind Kaurav) was the cousin of the deceased who

admitted to seeing the deceased’s body in a dry well in a supine position.

He stated that the well was not visible from the road and volunteered that

he was witness to the appellant’s statement(s) before the police and also

witnessed seizure of the second slipper from a nearby water channel later.

23.P.W.15 (Prakashchand Mehra) is son of the Kotwar of Chargaon and

11

testified that the spot map and panchnama were prepared before him,

blood samples of three suspects (including appellant) were taken in his

presence and the missing slipper was seized by the police with him. In

cross-examination, however, he admitted that he was not present during

interrogation of the appellant by the police.

24.P.W.17 (Sanjay Kumar Nagvanshi) was the Tehsildar at Gadarwara

in August, 2015. He stated that he got conducted identification proceedings

to match the slipper recovered through the appellant to ensure that it

belonged to the deceased. He testified to procuring similar looking black

slippers from his staff members and mixing them with the slipper received

from the police station. Although both P.W.2 and P.W.3 were called by him,

he testified that only P.W.2 came into his office and identified the

deceased’s slipper correctly.

25.P.W.18 (M.D. Yadav) was posted as Assistant Sub-Inspector at

police station Chichli and was the police officer who lodged the missing

report on the basis of information given by P.W.3 on the afternoon of 22

nd

May, 2015. He also testified to seizing the slipper and salwar presented by

P.W.2.

26.P.W.19 (C.M. Shukla) was posted as S.H.O. who got prepared spot

map and was also present during identification proceedings of the

deceased’s body. Upon being confronted during cross-examination as to

why the time of disappearance was recored as 10.00 p.m. in the

12

Roznamcha, he explained that it was a mistake.

27.P.W.21 (Krishnakant Kaurav) was posted as a Gram Rozgar

Sahayak in Gram Panchayat Chargaon and testified to witnessing

interrogation of the appellant, especially his disclosure of location of the

missing slipper and recovery of the same.

28.P.W.22 (Niyazul Khan) was the Inspector who got blood sample of

the appellant extracted at the Government Hospital, Chichli and prepared

seizure memo of sealed vials containing blood of the appellant and two

others, and forwarded them to FSL Sagar. The Trial Court refused

permission to the Defence Counsel to ask questions relating to the FIR,

postmortem report and Roznamcha holding that questions relating to

investigation only conducted by the witness could be asked from him.

29.P.W.23 (D.V.S. Sagar) was posted as Station House Officer at Police

Station Chichli and testified to recording memorandum statement of

accused in presence of P.W.15 and P.W.20, on which basis he seized the

missing black fibre slipper of right leg from near the shrubs under a tree

near the spot of incident in Darshan Kaurav’s field.

30.P.W.24 (Rajkumar Dixit) was the Head Constable who seized sealed

viscera jars and vaginal slides which were produced by Head Constable

Chetram. He admitted to not checking the sealed parcels himself and

stated that he safely locked them in a locker at the police station.

13

31.Over and above the above-mentioned oral testimonies, we may now

refer to the medico-scientific evidence led by the prosecution to connect

the appellant with the crime.

32.P.W.8 (Dr. R.R. Chaudhary), a Senior Scientific Officer from FSL,

Sagar has deposed that on 4

th

June, 2015 he examined three exhibits;

Slide marked as Ex. A , Salwar marked as Ex. B and Chappal marked as

Ex. C which belonged to the deceased. In the course of examination,

human sperms were found on the slide (Ex. ‘A’) of the deceased, however,

only human blood was found on the salwar (Ex. ‘B’). No blood or semen

was found on the slipper (Ex. ‘C’). The blood group of the blood stained on

the salwar could not be detected as a lot of dirt was stuck on it.

33. P.W.9 (Dr. C.S. Jain) was posted as Forensic Expert-Analysis at

Medico-Legal Institute, Bhopal on 12

th

June, 2015 when three viscera jars

(Exs. ‘D’, ‘E’ and ‘F’) comprising different parts of the body of deceased

were received with their seals intact. However, when opened these viscera

samples were discovered in a condition unfit for examination as the liquid

had turned stinky and dusty, and the tissues had decayed. After comparing

the postmortem report, evaluation of time and the sequence of the events

as also the report of the State Forensic Science Laboratory, P.W.9 opined

as follows, which could not be discredited at all in his cross-examination:

“12. Opinion :- After the analysis of facts described in the

documents which have been examined on the basis of my

subject knowledge, articles of books and experience gained from

the 10984 post mortems conducted by me for continuously more

14

than 33 years I am of the opinion that:-

1.The deceased died due to throttling.

2.Sexual intercourse was performed with the deceased

before her death which amounted to rape on considering the

age.

3.The deceased was dragged before her death and injuries

indicating the struggle were also present.

4.The slides and salwar of the deceased were kept for D.N.A.

examination. I did not know their result up to the preparation of

the report otherwise other opinion could also be expressed. It

would be appropriate to enclose the said report in the case after

obtaining it immediately. If the person/s performing sexual

intercourse with the deceased are known then the D.N.A of their

sperms should be matched with the D.N.A. of the sperms

present in the vaginal slides because if they matched then it

would be scientifically confirmed that the sexual intercourse was

performed by them. In this regard my report is ExP-11 which is in

5 pages. The A to A part on it bears my signature.”

34.P.W.11 (Dr. Pankaj Srivastava) was posted as Scientific Officer at

the DNA Unit of FSL, Sagar during the period, 24

th

June, 2015 to 20

th

July,

2015 and he submitted the DNA test report which shows that the DNA

extracted from the appellant’s blood matched with DNA from the vaginal

smear slide and salwar of the deceased. It has been specifically been

recorded that bodily fluids of the other five suspects were not found present

in the source vaginal slide or salwar of the victim. The witness was

subjected to an extremely lengthy cross-examination but nothing that could

distract the conclusion he has drawn in the report referred to above. His

opinion is extracted hereunder:

“1….

1.Male D.N.A. profile was found on the source vaginal smear

slide and salwar of the deceased …...

15

2.The body fluids of suspect Hargovind Kaurav, suspect

Nandi @ Anand and suspect Baba @ Ashok were not found

present in the source vaginal slide and salwar of the deceased

…...

3.The body fluids of suspect Roopram and suspect Manoj

were not found present in the source vaginal slide and salwar of

the deceased ……...

4.The D.N.A. profile matching with that of the suspect Baba

@ Ravishankar was found present in the source vaginal slide

and salwar of the deceased ……...

2.The opinion given by me in regard to the suspect

Hargovind Kaurav, Nandi @ Anand Kaurav and Baba @ Ashok is

ExP-15 which is in 3 pages and the A to A part on it bears my

signature. The opinion given by me in regard to the suspect

Baba @ Ravishankar, Roopram @ Ruppu Kaurav and Manoj @

Halke Yadav is ExP-16 which is in 2 pages and the A to A part on

it bears my signature.”

35.P.W.12 (Dr. Kinshuk Jaiswal), who was posted as Medical Officer at

Government Hospital Chichli on 23

rd

May, 2015, at at 9.00 a.m. conducted

postmortem on the dead body of the deceased. She has stated that the

putrefaction of the body had started and foul smelling odour was present.

She estimated time of death at 48-72 hours before or possibly earlier

depending upon environmental conditions. She also found chara (fodder)

inside the hair of the deceased and deposed that two vaginal slides of the

deceased were sent for examination. What she noticed in the postmortem

examination was as follows:

“Abrasions present in the whole left portion of the body of the

deceased. Extending from lateral aspect of left arm to left

forearm 15 cm x 3.5 cm irregular in shape. Left thigh lateral 8 cm

x 3 cm. Left leg (lateral) 7.5 cm x 2.5 cm irregular shape. Left

buttock 15 cm x 4.5 cm irregular. Neck swollen. Contusions

present on anterior aspect of neck both sides. Contusions

16

present over right axillary area 5 cm x 2.5 cm over left

supraclavicular area (6 cm x 2 cm), left arm (5 cm x 2.5 cm), left

scapular area (8 cm x 2.5 cm). Contusion present over right thigh

medical aspect (10 cm x 2.5 cm). Perineal area swollen and

edematous. Pubic hair absent. Hymen ruptured. Two vaginal

slides prepared and send + for biochemical examination. Feaces

passed. Contusion present over left foot (dorsally) 3.5 cm x 1.5

cm and contusion present over right palm (palmar aspect) of size

2 cm x 1.5 cm. ….(sic.)”

36.P.W.16 (Dr. Kshipra Kaurav) was posted as Medical Officer at

Government Hospital, Chichli on 8

th

July, 2015 when she was asked to take

the blood sample of the appellant which she kept in a vial, sealed it and

handed it over to the SHO who prepared the seizure memorandum Ex. P-

5. She has volunteered in her cross-examination that the blood samples of

two more persons were also taken prior to that of the appellant on the

same day and that photographs of all the persons whose blood samples

were taken were duly attested. She further volunteered that the

identification Form Ex. P-9 along with photographs of the appellant were

also attested by her.

37.Essentially, this is a case of circumstantial evidence which is

supported by occular and medico-scientific evidence. The prosecution has

effectively proved that deceased was `last seen’ with the appellant and on

earlier occasions too was seen being enticed by the appellant. DNA

evidence using the established STR technique has proved that appellant

committed sexual intercourse with the deceased. Deceased has been

proven to be a minor using school records. Various injuries on her body

17

along with signs of struggle proved that such crime was committed in a

barbaric manner. Death has been established as being homicidal and

caused by throttling, and has been estimated during the time when the

deceased was seen with the appellant. A slipper have been recovered

through the appellant which has later been identified as belonging to the

deceased, giving finality to the circumstantial chain. The appellant has

been unable to offer any alibi and his defence merely rests on deflecting

guilt on to the family of the deceased, which is without a shred of evidence.

Further, no effective challenge has been made against any medical or DNA

reports. There can thus be no second opinion against the guilt of the

appellant and his consequential conviction.

38. The findings of kidnapping, rape, resultant death and destruction of

evidence have hence been proven beyond reasonable doubt, as evidenced

by concurrent findings of the Courts below. Even this Court on 10

th

January, 2018 has confirmed the conviction of the appellant keeping in

view the fact that DNA typing carries high probative value for scientific

evidence, is often more reliable than ocular evidence. It goes without

saying that in (i) Pantangi Balarama Venkata Ganesh vs. State of

Andhra Pradesh

2

and (ii) Dharam Deo Yadav vs. State of Uttar

Pradesh

3

, this Court has unequivocally held that DNA test, even if not

infallible, is nearly an accurate scientific evidence which can be a strong

2(2009) 14 SCC 607

3(2014) 5 SCC 509

18

foundation for the findings in a criminal case.

Sentencing :

39.The core issue that we are left with to decide is the nature of

punishment to be awarded to the appellant. The Trial Court awarded death

sentence after drawing a balance-sheet weighing `mitigating’

circumstances against `aggravating’ circumstances. It noted that lack of

criminal antecedents and a large number of dependants were outweighed

by appellant’s mature (40-50) age, heinousness of offence, adverse

reaction of society, pre-planned manner of crime, injuries on body of

deceased and lack of regret during trial. The High Court noted that there

was bleeding due to sexual intercourse and that there was no possibility of

reform owing to the appellant’s denial of his crimes. Accordingly, it held

that awarding death penalty was justified.

40.The question as to why and in what circumstances should the

extreme sentence of death be awarded has been pondered upon by this

Court since many a decades. The Constitution Bench of this Court in

Bachan Singh vs. State of Punjab

4

evolved the principle of life

imprisonment as the ‘rule’ and death penalty as an ‘exception’. It further

mandated consideration of the probability of reform or rehabilitation of the

criminal. It, thus, formed the genesis of the ‘rarest of the rare’ doctrine for

awarding the sentence of death.

4 (1980) 2 SCC 684

19

41.This was further developed in Machhi Singh and others vs. State

of Punjab

5

where this Court held that as part of the `rarest of rare’ test, the

Court should address itself as to whether; (i) there is something uncommon

about the crime which renders sentence of imprisonment for life

inadequate and calls for a death sentence; (ii) the circumstances are such

that there is no alternative but to impose death sentence even after

according maximum weightage to the mitigating circumstances which

speak in favour of the offender. Further, this Court ruled that :

“(i) The extreme penalty of death need not be inflicted except in

gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the

‘offender’ also require to be taken into consideration along with

the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an

exception. In other words death sentence must be imposed only

when life imprisonment appears to be an altogether inadequate

punishment having regard to the relevant circumstances of the

crime, and provided, and only provided, the option to impose

sentence of imprisonment for life cannot be conscientiously

exercised having regard to the nature and circumstances of the

crime and all the relevant circumstances.

(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.”

42.There have been an umpteen number of judgments where this Court

has steadily restricted the circumstances for award of death penalty and

has increased the burden of showing special reasons before mandating

death penalty, as mandated under Section 354(3) of the Cr.P.C.

5 (1983) 3 SCC 470

20

43.This exercise of drawing a balance sheet of aggravating and

mitigating circumstances whilst keeping in mind the peculiarity of facts and

circumstances of each case has nevertheless been very tedious. It has

resulted in a lack of unanimity of standard amongst different Benches

resulting in differential standards for award of capital punishment.

44.Many protagonists of abolishment of death penalty have been

passionately urging this Court to not award death in cases of circumstantial

proof claiming an inherent weakness in cases without ocular evidence.

They highlight an ever-remaining possibility of reform and rehabilitation and

ask this Court to be cognizant of social, economic and educational

conditions of the accused.

45.Simultaneously, however, a parallel line of thought has strongly

advocated that death be imposed to maintain proportionality of sentencing

and to further the therories of deterence effect and societal retribution.

These people contend that sentencing should be society-centric instead of

being judge-centric and make use of a cost-benefit analysis to contend that

the miniscule possibility of putting to death an innocent man is more than

justified in the face of the alternative of endangering the life of many more

by setting a convict free after spending 14-20 years in imprisonment. This

possibility, they further state, is already well safeguarded against by a

`beyond reasonable doubt’ standard at the stage of conviction.

46.Ostensibly to tackle such a conundrum between awarding death or

21

mere 14-20 years of imprisonment, in Swamy Shraddananda @ Murali

Manohar Mishra Vs. State of Karnataka

6

, a three-Judge Bench of this

Court evolved a hybrid special category of sentence and ruled that the

Court could commute the death sentence and substitue it with life

imprisonment with the direction that the convict would not be released from

prison for the rest of his life. After acknowledging that “the truth of the

matter is that the question of death penalty is not free from the subjective

element and the confirmation of death sentence or its commutation by this

Court depends a good deal on the personal predilection of the Judges

constituting the Bench”, this Court went on to hold as follows:

“92. The matter may be looked at from a slightly different angle.

The issue of sentencing has two aspects. A sentence may be

excessive and unduly harsh or it may be highly

disproportionately inadequate. When an appellant comes to this

Court carrying a death sentence awarded by the trial court and

confirmed by the High Court, this Court may find, as in the

present appeal, that the case just falls short of the rarest of the

rare category and may feel somewhat reluctant in endorsing the

death sentence. But at the same time, having regard to the

nature of the crime, the Court may strongly feel that a sentence

of life imprisonment subject to remission normally works out to a

term of 14 years would be grossly disproportionate and

inadequate. What then should the Court do? If the Court's option

is limited only to two punishments, one a sentence of

imprisonment, for all intents and purposes, of not more than 14

years and the other death, the Court may feel tempted and find

itself nudged into endorsing the death penalty. Such a course

would indeed be disastrous. A far more just, reasonable and

proper course would be to expand the options and to take over

what, as a matter of fact, lawfully belongs to the Court i.e. the

vast hiatus between 14 years' imprisonment and death. It needs

to be emphasised that the Court would take recourse to the

expanded option primarily because in the facts of the case, the

sentence of 14 years' imprisonment would amount to no

punishment at all.

6 (2008) 13 SCC 767

22

93. Further, the formalisation of a special category of sentence,

though for an extremely few number of cases, shall have the

great advantage of having the death penalty on the statute book

but to actually use it as little as possible, really in the rarest of

rare cases. This would only be a reassertion of the Constitution

Bench decision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC

(Cri) 580 : AIR 1980 SC 898] besides being in accord with the

modern trends in penology.

94. In the light of the discussions made above we are clearly of

the view that there is a good and strong basis for the Court to

substitute a death sentence by life imprisonment or by a term in

excess of fourteen years and further to direct that the convict

must not be released from the prison for the rest of his life or for

the actual term as specified in the order, as the case may be.”

47.The special sentencing theory evolved in Swamy Shraddananda

(supra) has got the seal of approval of the Constitution Bench of this Court

in Union of India vs. Sriharan alias Murugan and others

7

, laying down

as follows:

“105. We, therefore, reiterate that the power derived from the

Penal Code for any modified punishment within the punishment

provided for in the Penal Code for such specified offences can

only be exercised by the High Court and in the event of further

appeal only by the Supreme Court and not by any other court in

this country. To put it differently, the power to impose a modified

punishment providing for any specific term of incarceration or till

the end of the convict's life as an alternate to death penalty, can

be exercised only by the High Court and the Supreme Court and

not by any other inferior court.

106.Viewed in that respect, we state that the ratio laid down in

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

Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] that a

special category of sentence; instead of death; for a term

exceeding 14 years and put that category beyond application of

remission is well founded and we answer the said question in the

affirmative. We are, therefore, not in agreement with the opinion

expressed by this Court in Sangeet v. State of Haryana [Sangeet

v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611]

7 (2016) 7 SCC 1

23

that the deprival of remission power of the appropriate

Government by awarding sentences of 20 or 25 years or without

any remission as not permissible is not in consonance with the

law and we specifically overrule the same.”

48.Regardless of the suggestive middle path this Court has, when the

occasion demanded, confirmed death sentences in many horrenduous,

barberic and superlative crimes especially which involve kidnapping, rape

and cold blooded murder of tender age children.

49.In Mukesh and another vs. State (NCT of Delhi) and others

8

,

faced with an instance of gang rape and brutal murder, this Court found

that aggravating circumstances like diabolic nature of the crime,

brazenness and coldness with which such acts were committed and the

inhuman extent to which the accused could go to satisfy their lust, would

outweigh mitigating circumstances.

50.In Vasanta Sampat Dupare vs. State of Maharashtra

9

, a little child

was raped and brutally murdered. The death penalty was confirmed by this

Court. Thereafter, a review petition was heard in open court and the death

penalty was reconfirmed regardless of the convict having completed a

bachelors preparatory programme, having kept an unblemished jail record

and acquiring some other reformative qualifications during the course of

trial. This Court was of the view that the extreme depravity and barberic

manner in which the crime was committed and the fact that the victim was

8 (2017) 6 SCC 1

9 (2017) 6 SCC 631

24

a helpless child of 4 years clearly outweighed the mitigating circumstances

in that case.

51.In Khushwinder Singh vs. State of Punjab

10

, this Court affirmed

the death sentence of the accused who had killed six innocent persons

including two minors by kidnapping, drugging them with sleeping pills and

then pushing them into a canal.

52.In Manoharan Vs. Inspector of Police

11

, a three-Judge Bench (by

majority) affirmed the death sentence of the accused who along with his

co-accused was found guilty of gangraping a 10 years’ old minor girl and

committing her brutal murder along with her 7 years’ old brother by

throwing them into a canal and causing their death by drowning.

53.Equally, there are several other instances including the recent

instance in Rajindra Pralhadrao Wasnik v. State of Maharashtra in

Review Petition(Crl.) Nos. 306-307/2013 where this Court commuted

death sentence even in the case of rape and murder of tender age children

like 3-4 year olds after taking notice of the peculiar facts and circumstances

of that case as well as the factor that the convictions were founded upon

circumstancial evidence and though DNA Test was held but its report was

withheld and not produced by the prosecution for the reasons best known

to it.

10 (2019) 4 SCC 415

11(2019) SCConline SC 951

25

54.On a detailed examination of precedents, it appears to us that it

would be totally imprudent to lay down an absolute principle of law that no

death sentence can be awarded in a case where conviction is based on

circumstantial evidence. Such a standard would be ripe for abuse by

seasoned criminals who always make sure to destroy direct evidence.

Further in many cases of rape and murder of children, the victims owing to

their tender age can put up no resistence. In such cases it is extremely

likely that there would be no ocular evidence. It cannot, therefore, be said

that in every such case nothwthstanding that the prosecution has proved

the case beyond reasonable doubt, the Court must not award capital

punishment for the mere reason that the offender has not been seen

committing the crime by an eye-witness. Such a reasoning, if applied

uniformally and mechanically will have devastating effects on the society

which is a dominant stakeholder in the administration of our criminal justice

system.

55.Further, another nascent evolution in the theory of death sentencing

can be distilled. This Court has increasingly become cognizant of `residual

doubt’ in many recent cases which effectively create a higher standard of

proof over and above the `beyond reasonable doubt’ standard used at the

stage of conviction, as a safeguard against routine capital sentencing,

keeping in mind the irreversibility of death.

56. In Rameshbhai Chandubhai Rathod vs. State of Gujarat,

12

this

12 (2011) 2 SCC 764

26

Court noted that reliance on merely ‘plausible’ evidences to prove a

circumstantial chain and award death penalty would be “in defiance of any

reasoning which brings a case within the category of the “rarest of rare

cases”.” Further, various discrepancies in other important links in the

circumstantial chain as well as lack of any cogent reason by the High Court

for not accepting the retraction of the confession statement of the accused

was noted. Acting upon such various gaps in the prosecution evidence as

well as in light of other mitigating circumstances, like the possibility that

there were others involved in the crime, this Court refused to confirm the

sentence of death despite upholding conviction.

57. Such imposition of a higher standard of proof for purposes of death

sentencing over and above ‘beyond reasonable doubt’ necessary for

criminal conviction is similar to the “residual doubt” metric adopted by this

Court in Ashok Debbarma vs. State of Tripura

13

wherein it was noted

that:

“in our criminal justice system, for recording guilt of the

accused, it is not necessary that the prosecution should prove

the case with absolute or mathematical certainty, but only

beyond reasonable doubt. Criminal Courts, while examining

whether any doubt is beyond reasonable doubt, may carry in

their mind, some "residual doubt", even though the Courts are

convinced of the accused persons' guilt beyond reasonable

doubt.”

58.Ashok Debbarma (supra) drew a distinction between a ‘residual

doubt’, which is any remaining or lingering doubt about the defendant’s

13 (2014) 4 SCC 747

27

guilt which might remain at the sentencing stage despite satisfaction of the

‘beyond a reasonable doubt’ standard during conviction, and reasonable

doubts which as defined in Krishan v. State

14

are “actual and substantive,

and not merely imaginary, trivial or merely possible”. These ‘residual

doubts’ although not relevant for conviction, would tilt towards mitigating

circumstance to be taken note of whilst considering whether the case falls

under the ‘rarest of rare’ category.

59. This theory is also recognised in other jurisdictions like the United

States, where some state courts like the Supreme Court of Tennessey in

State vs. McKinney

15

have explained that residual doubt of guilt is a valid

non-statutory mitigating circumstance during the sentencing stage and

have allowed for new evidence during sentencing proceedings related to

defendant’s character, background history, physical condition etc.

60.The above cited principles have been minutely observed by us,

taking into consideration the peculiar facts and circumstances of the case

in hand. At the outset, we would highlight that the High Court while

confirming death has observed that the girl was found bleeding due to

forcible sexual intercourse — which fact, however, is not supported by

medical evidence. However, such erroneous finding has no impact on

conviction under Section 376A of the I.P.C. for a bare perusal of the section

shows that only the factum of death of the victim during the offence of rape

14 (2003) 7 SCC 56

15 74 S.W.3d 291 (Tenn. 2002)

28

is required, and such death need not be with any guilty intention or be a

natural consequence of the act of rape only. It is worded broadly enough to

include death by any act committed by the accused if done

contemporaneously with the crime of rape. Any other interpretation would

defeat the object of ensuring safety of women and would perpetuate the

earlier loophole of the rapists claiming lack of intention to cause death to

seek a reduced charge under Section 304 of I.P.C. as noted in the Report

of the Committee on Amendments to Criminal Law, headed by Justice

J.S. Verma, former Chief Justice of India:

“22. While we believe that enhanced penalties in a substantial

number of sexual assault cases can be adjudged on the basis of

the law laid down in the aforesaid cases, certain situations

warrant a specific treatment. We believe that where the offence

of sexual assault, particularly ‘gang rapes’, is accompanied by

such brutality and violence that it leads to death or a Persistent

Vegetative State (or ‘PVS’ in medical terminology), punishment

must be severe – with the minimum punishment being life

imprisonment. While we appreciate the argument that where

such offences result in death, the case may also be tried under

Section 302 of the IPC as a ‘rarest of the rare’ case, we must

acknowledge that many such cases may actually fall within the

ambit of Section 304 (Part II) since the ‘intention to kill’ may

often not be established. In the case of violence resulting in

Persistent Vegetative State is concerned, we are reminded of

the moving story of Aruna Shanbagh, the young nurse who was

brutally raped and lived the rest of her life (i.e. almost 36 years)

in a Persistent Vegetative State.

23. In our opinion, such situations must be treated differently

because the concerted effort to rape and to inflict violence may

disclose an intention deserving an enhanced punishment. We

have therefore recommended that a specific provision, namely,

Section 376 (3) should be inserted in the Indian Penal Code to

deal with the offence of “rape followed by death or resulting in a

Persistent Vegetative State”.”

61. In the present case, there are some residual doubts in our mind. A

29

crucial witness for constructing the last seen theory, P.W.5 is partly

inconsistent in cross-examination and quickly jumps from one statement to

the other. Two other witnesses, P.W.6 and P.W.7 had seen the appellant

feeding biscuits to the deceased one year before the incident and their long

delay in reporting the same fails to inspire confidence. The mother of the

deceased has deposed that the wife and daughter of the appellant came to

her house and demanded the return of the money which she had borrowed

from them but failed to mention that she suspected the appellant of

commiting the crime initially. Ligature marks on the neck evidencing

throttling were noted by P.W.20 and P.W.12 and in the postmortem report,

but find no mention in the panchnama prepared by the police. Viscera

samples sent for chemical testing were spoilt and hence remained

unexamined. Although nails’ scrappings of the accused were collected, no

report has been produced to show that DNA of the deceased was present.

Another initial suspect, Baba alias Ashok Kaurav absconded during

investigation, hence, gave rise to the possibility of involvment of more than

one person. All these factors of course have no impact in formation of the

chain of evidence and are wholly insufficient to create reasonable doubt to

earn acquittal.

62. We are cognizant of the fact that use of such ‘residual doubt’ as a

mitigating factor would effectively raise the standard of proof for imposing

the death sentence, the benefit of which would be availed of not by the

innocent only. However, it would be a misconception to make a cost-benefit

30

comparison between cost to society owing to acquittal of one guilty versus

loss of life of a perceived innocent. This is because the alternative to death

does not necessarily imply setting the convict free.

63. As noted by the United States Supreme Court in Herrera v.

Collins,

16

“it is an unalterable fact that our judicial system, like the human

beings who administer it, is fallible.” However, death being irrevocable,

there lies a greater degree of responsibility on the Court for an indepth

scruitiny of the entire material on record. Still further, qualitatively, the

penalty imposed by awarding death is much different than in incarceration,

both for the convict and for the state. Hence, a corresponding distinction in

requisite standards of proof by taking note of ‘residual doubt’ during

sentencing would not be unwarranted.

64. We are thus of the considered view that the present case falls short

of the ‘rarest of rare’ cases where the death sentence alone deserves to be

awarded to the appellant. It appears to us in the light of all the cumulative

circumstances that the cause of justice will be effectively served by

invoking the concept of special sentencing theory as evolved by this Court

in Swamy Shraddananda (supra) and approved in Sriharan case

(supra).

65.For the reasons aforesaid, the appeals are allowed in part to the extent

that the death penalty as awarded by the courts below is set aside and is

16 506 U.S. 390 (1993)

31

substituted with the imprisonment for life with a direction that no remission

shall be granted to the appellant and he shall remain in prison for the rest

of his life.

………………………………..J.

(ROHINTON FALI NARIMAN)

….……………………..J.

(R. SUBHASH REDDY)

…………………………… J.

(SURYA KANT)

NEW DELHI

DATED : 03.10.2019

32