R/CC/1/2023 JUDGMENT DATED: 30/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL CONFIRMATION CASE NO. 1 of 2023

With

R/CRIMINAL APPEAL NO. 777 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

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Approved for Reporting Yes No

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STATE OF GUJARAT

Versus

PRADIP S/O RAJESH @ RAJENDRA @ RAMESHVAR RAJKUMAR GUPTA

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Appearance:

MR RONAK RAVAL, APP for the Appellant(s) No. 1

NOTICE SERVED for the Respondent(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 30/01/2026

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1.The death reference has come up before this Court for

confirmation of a Death Sentence awarded to the appellant – sole

accused Pradip Rajesh Rajkumar Gupta, by judgment dated

30.01.2023, passed in Special POCSO Case No.73 of 2022, whereby,

the Additional Sessions Court at Valsad, has convicted the appellant

accused for the following offences and sentenced as tabulated

hereinunder:

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Conviction

under Section

PunishmentFine In default of

fine

302 of IPC Death

Sentence

- -

6 of POCSO Death

Sentence

- -

201 of IPC RI for 7

years

Rs.10,000RI for 2 years

S.376(A)(B) of

IPC

No separate sentence being awarded.

2.The appellant herein has also questioned the legality and

correctness of the judgment of conviction and order of death sentence

by preferring conviction appeal.

3.The prosecution case, in nutshell, is that,

The appellant accused Pradik Shah was tried and prosecuted for

the offence of murder and rape of 9 years old child, allegedly

committed on 9 years of old victim. The victim along with the

parents and brother were living in the rented room no.7, a

common chawl, situated at Vapi, Gitanagar Area. In the common

chawl, there were other people living in the different rooms of

the said common chawl.

The witness Ashadevi – PW:6 who happened to be aunt of the

accused was living in room no.6 and next-door neighbour of the

complainant. The accused was used to come at the house of his

aunt Ashadevi for lunch and dinner, as she was providing

dinning service to the vicinity of people.

According to prosecution case, the parents and the brother of the

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deceased were working in the factory situated in industrial area

of Vapi and their schedule was morning 08:00 to evening 07:00.

The deceased child was studying in 4

th

standard with Mother

Teresa School, Vapi and her school time was 7-00 am to 2-00

pm noon. The deceased was having extra key of the house, so

that after returning from the school, she could live in the room.

On 07.02.2020, at about 2-15 pm, the deceased was alone in the

room and was watching TV. The accused Pradip, in the first

attempt, had tried to enter in the room but the deceased victim

was vigilant and did not permit him to enter into the room.

Despite of this, the accused after sometime, after taking in his

hand the scarf from the corridor of the colony, he entered inside

the room forcefully. There was resistance by the child and to

avoid further interference of the third party, the accused

increased the volume of the T.V. and thereafter, tried to abuse

the sexually the victim but there was resistance, as a result, the

accused strangulated her and put the scarf on her neck after

killing her, she was raped by the accused. In order to screen the

offence, the dead body of the deceased hanged on the ceiling fan

with the support of the scarf to prove that the deceased

committed the suicide.

The occupants of room No. 6 – Ashaben (PW-6), at about 04:00

o’clock knocked the door of room no.7, to handover the plat but

there was no response, as a result, she pushed the door and

entered into the room and show the deceased in a hanging

position. She had informed the owner of the room – Sunilbhai

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(PW-7). The witness Sunilbhai contacted the father of the child,

Gaurishankar Shah (PW-3). The father, mother and brother

immediately rushed to the place of occurrence. The body of the

deceased was taken down from the ceiling fan. The dead body

was taken to the Government Hospital, Vapi in the ambulance,

where she was declared ‘dead‘ on arrival. The father of the child

PW-3 lodged an FIR with the Vapi Town Police Station, alleging

that, unknown person killed his daughter and then, raped her.

Upon registration of the offence, the investigation was

handed over to S.J. Baraiya (PW-15). During the course of

investigation, the IO prepared the inquest and the dead body was

sent for postmortem and recorded the statement of the witnesses,

drew the panchnama of place of occurrence and collected

necessary samples for forensic analysis and also seized and

recovered the locket (pendent) found at the place of incident.

During the investigation, it was reveled that the appellant –

accused Pradip was found in the colony i.e. near the house of the

deceased and the witness PW-14 – Pushpadevi Pathak, saw him

when he was following the deceased child in noon hours. The

accused then arrested and was referred to the medical hospital

for medical examination. The statements of the material

witnesses being recorded by the Executive Magistrate under

Section 164 of the Cr.P.C. On the basis of disclosure statement

of the accused, he pointed out the place of occurrence. The

accused was again referred to the medical hospital for DNA

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profiling and the samples as well as seized articles were

deposited before the Surat FSL and after receiving the necessary

reports, the chargesheet for the offences as referred above came

to be filed against the accused before the Jurisdictional

Magistrate.

4.As the case was exclusively triable by the Court of Sessions, the

case was committed to the Court of Sessions at Valsad Sessions Court.

5.The Sessions Court, Valsad framed the charges against the

appellant. The accused – appellant, in his statement, did not have

admitted the charge and claimed to be tried.

6.The prosecution, in order to prove the charge, adduced the

following oral and documentary evidence in support of its case.

Oral evidence :

PW 1 – Exh.13Dr. Pinkesh Modi

PW 2 – Exh.22Dr. Devagini Gamanbhai

PW 3 – Exh.27Gaurishankar Rajkumar

PW 4 – Exh.29Aartiben

PW 5 – Exh.30Sumandevi Sunil Jayshaval

PW 6 – Exh.32Ashadevi Shravanbhai Shah

PW 7 – Exh.33Sunilbhai Babubhai

PW 8 – Exh.35Roshankumar Vinodbhai Shah

PW 9 – Exh.37Satishbhai Babubhai

PW 10 – Exh.49Deepak Dinanath Singh

PW 11 – Exh.55Manohar Krishna Mohan Choudhari

PW 12 – Exh.57Ravi Hiralal

PW 13 – Exh.61Durgesh Sivanand

PW 14 – Exh.62Pushpadevi Girja

PW 15 – Exh.64Sardarsingh Jivabhai

PW 16 – Exh.81Bharatbhai Kanjibhai

PW 17 – Exh.85Umashankar Acchelal Vishvakarma

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Documentary evidence :

Exh.65 Report of crime

Exh.28 Complaint

Exh.20 Bonafide

Exh.34 Inquest Panchnama

Exh.38 Panchnama of place of offence

Exh.39 Panchnama of clothes of deceased

Exh.50 Panchnama of clothes of accused

Exh.56 Panchnama of statement under Section 27

Exh.58 Panchnama of statement under Section 27

Exh.23 Accused medical certificate

Exh.14 PM Note

Exh.15 Certificate

Exh.66 Map of place of offence

Exh.67 Report of place

Exh.68 Report of place

Exh.69 Forwarding notes

Exh.70 Forwarding notes

Exh.71 Forwarding notes

Exh.72 FSL valsad letter

Exh.73 Weapon report

Exh.74 FSL surat letter

Exh.75 Biological report

Exh.76 Serological report

Exh.77 FSL surat letter

Exh.78 DNA report

Exh.79 FSL surat letter

Exh.80 DNA report

7.After closure of the prosecution evidence, the statement of the

appellant – accused under Section 313 of the Cr.P.C., was recorded, to

which, he stated that, he was caught by the police at his home in the

night hours and was pressurized to confess his guilt and was taken on

the railway track and was threatened to confess the guilt. He has

further stated that, he did not visited the place of incident, nor he had

went into the room, where the incident occurred.

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Trial Court Finding:

8.After hearing the parties and upon appreciation of the material

evidence, the appellant accused held guilty for the offence of murder

and rape and awarded death sentence and while recording the sentence,

the trial Court observed that, the crime committed by the accused is

heinous crime and the manner in which, the deceased child was

sexually abused and killed, the case would fall in the category of rarest

of rare case. The trial Court mainly relied upon the circumstances viz.

(I) the extrajudicial confession made by the accused before the

witnesses, (II) the testimony of witness Pushpadevi Pathak (PW-14),

who had seen the accused when he was entering into the room of the

child, (III) the evidence of Forensic Science including DNA analysis

report; (IV) the locket which was found at the place of incident and it

belongs to the appellant accused (V) and the conduct of the accused.

Evidence adduced by the prosecution :

9.We would like to have a cursorary look at the evidence adduced

by the prosecution through its witnesses :

(1)Dr. Pikesh Maheshbhai Modi (PW-1): This witness being

Assistant Professor, Forensic Medicine, New Civil Hospital,

Surat, conducted the Postmortem on the body of the deceased

child on 08.02.2020. The witness noticed the following external

injuries and internal injuries on the body of the deceased :

External injuries :

(15)Following injuries present in vulva part

1.0.5cm contusion present on right side of vestibule just below clitoris

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2.0.8x0.3cm contusion present on left side of vestibule just below

clitoris

3.around the urethral opening 0.5cm contusion present, margins of the

urethral opening has redness

4.Just beneath the lobia-minosa at 1’o clock and 2’o clock position

contusion of size 1x0.3cm present

5.Contusion of size 1x0.5cm present in Fossa navicularis and

Fourchette at 6’o clock and 7’o clock position

6.Hymen is contused, redden and margins of hymen show redness

7.Contusion of size 1x0.3cm present at labia minora from 10’o clock

position to 8’o clock position

Following injuries are present at anal region:

1.Tear of size 1cm in length subcutaneous deep, 4 in number

extended upto internal splinter of anus present at 6’o clock, 7’o clock,

9’o clock and 12’o clock position, red labeled blood present at margins

of the tears

2.Mucocutaneous junction shows abrasion circumferently and

redness

3.Mucosa of the anus and rectum are redden stained with red

coloured blood, dry blood stains present around the perianal part.

Note: Contusions mentioned in the Vulva part are red in colour.

Abrasin mentioned in Anal part are bright red in colour.

(16) Not applicable

(17) External Injuries

1.Abraded contusion of size 3x1.5cm, horizontally rail-road type,

present on front part of right shoulder with a gap of 0.5cm. Its inner end

is 8cm right to midline and in the line of stern notch, bright red in

colour

2.Contusion of size 6x5.5cm horizontally present on front and mid

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part of lower neck below thyroid cartilage, 1cm above sternal notch and

10cm below chin

3.Abraded contusion of size 5.5x0.5cm, ‘U’ shaped, present on

right side of neck, overlapping injury no.2 its lower border is 1.5cm

above sternal notch and its inner border is 1.3cm right to midline

4.Abraded contusion of size 2x1.2cm, horizontally present on front

of mid neck, overlapping injury no.2 it is 3c above sternal notch

5.Abraded contusion of size 3.5x1cm, horizontally present right

side of front neck, overlapping injury no.2, its inner end is 1cm right to

midline and 5.5cm above sternal notch

6.Ligature mark in the form of pressure abrasion pale yellowish

brown in colour of size 8x1cm, present on right side of neck, starting

from midline at the level of thyroid cartilage, going obiliquelly upward

and backward towards right side of back of neck, its upper margins is

7.5cm below chin in front of neck, 3cm and 4cm below right angle of

mandible and right mastoid process respectively.

7.Abrasion of size 2x1.5cm, pale yellowish brown colour, present

on right side of neck between injury no.5 and 6.

8.Linear abrasion of size 1x0.4cm, scratched type, coma shaped,

horizontally present on front of left side of neck, 0.8cm left to midline

and 9.8cm below chin surrounding to its contusion present.

9.Linear abrasion of size 0.4x0.3 cm and 0.4x0.2cm, coma shaped

present in area of 1x1cm at right front of neck, 3cm right to midline and

9cm below chin.

10.Linear abrasion of size 0.5x0.2cm and 0.5x0.1cm, coma shaped

present in area of 2x1 cm at right side of neck, 1cm right to midline and

5cm blow chin.

11.Abrasion of size 4x1cm obliquely present on front and upper part

of right side of neck, its lower inner end is 4cm below chin and just right

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to midline, and show pale yellowish brown in colour.

12.Abrasion of size of 0.5x0.4cm, 0.3x0.3cm and 0.8x0.5cm round

in shape present in area of 3x0.5cm at right upper part of neck at right

ramus of mandible bone, it is 2cm right to midline and show pale

yellowish brown colour.

13.Abrasion of size 0.8x0.5cm obliquely present on front upper part

of left side neck, its lower inner end is 2.5cm below chin and 1.5cm left

to midline, show pale yellowish in nature

14.Abrasion of size 2x0.5cm, obliquely present on front upper part

of left side of neck, its lower inner end is 3cm below chin and 2cm left to

midline show pale yellowish in nature.

15.Abrasion contusion of size 2x0.8cm, oval in shape obliquely

present on front and left side of neck, its lower inner end is 7cm below

chin and 2cm left to midline

16.Abraded contusion of size 4x0.9cm obliquely present on front

and left side of neck, its lower inner end is 9.5cm below to chin and

1.3cm left to midline

17.Linear abrasion of size 0.3x0.1cm and 0.6x0.1cm coma shaped,

present in area of 1x1cm size, just left to midline and 6.5cm below chin

18.Ligatuse mark in the form of pressure abrasion of size 7.5x1cm,

pale yellowish brown in colour, present on front and outer part of left

side of neck, starting from 4cm left to midline, above the thyroid

cartilage, going obliquely upward and backward toward back side of

neck. Its upper margins is 2.5cm below left angle of mandible and 3.5cm

below to left mastoid process between two ligature marks, injury no.6

and injury no.18 is 7.5cm on front side and 8cm on back side of neck.

19.Abrasion of size 4x1.5cm horizontally present on back and left

side of neck, 1.5cm left to midline and 8.5cm below occipital

protuberance

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20.Contusion of size 2x1cm, horizontally present on lower gum,

below incisor teeth, strained frenulum.

21.Abrasion of size 0.5cm in diameter round in shape present on

mid forehead at glabella

Note:

A.Abrasion mentioned in serial no.17 injury no. - 8,9,10,17,19,21

are bright red in colour.

B.Abraded contusion mentioned in serial no.17 injury no.-

1,3,4,5,15,16 are red in colour.

C.Contusion mentioned in serial no.17 injury no.-2,20 are red in

colour

D.Injuries mentioned in serial no.17 injury no.-6,7,11,12,13,14,18

are post-mortem in nature

E.Subcutaneous tissues of underlying skin layers beneath the injury

no.-6,7,11,12,13,14,18 did not show any vital reaction on small

hemorrhage.

(18)(A)

Yes injuries mentioned in serial no.15, serial no.17, serial no. 19(1),

19(A) are antemortem in nature, fresh prior to death, except post

mortem injuries. Injuries which are postmortem in nature are mentioned

above.

Internal Injuries :

(19)

1.Contusion of size 2x1cm, present at parieto occipital parts of

scalp tissues in midline, 5cm above occipital protuberance

2.No fractures found

3.All covering of brains are intact. Brain is congested, CSF is

clear.

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(19)(A) Neck

On internal examination of neck, subcutaneous tissue beneath the injury

no.- 2,3,4,5,15,16 mentioned in serial no.17 show contusion of soft

tissues, neck muscle. On examination thyroid gland, stenocleidomastoid

muscle, thyroid, sternothyroid muscle around wind pipe, soft tissues

around bone, epiglottis at base of tongue shows extravasation of blood,

red in colour. Soft tissues, neck tissues beneath the injury no.-

6,7,11,12,13,14,18 did not show any ecchymoses or extravasation

blood. Mucosa of epiglottis and trachea congested and shows petechial

hemorrhage.

(20)

1.Mucosa congested, rest nothing particular. Injuries are

mentioned in serial no.19(A).

2.Both lungs are oedematous and congested, interlobular surfaces

of both lungs show petechial hemorrhage. On cut section blood mixed

froth comes out

3.All four chambers of heart contains fluid blood dark-red in

colour.

The witness PW-1, after postmortem, obtained the necessary

samples like blood, vaginal swabs, nails, smears, viscera, etc.

According to opinion of the doctor PW-1, the cause of death was

asphyxia on account of manual strangulation (throttling) and

there were evidences of suggestive of sexual assault. The witness

has produced the PM report at Exh. 14.

In the cross-examination, the witness PW-1 has agreed with the

suggestion that, the manner in which the deceased received

injuries on her private part, the possibility of the sustaining of the

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injuries on the body of the accused cannot be rules out.

(2)Dr. Devangini Patel (PW-2): This witness had examined

accused Pradip Shah on 09.02.2020 and 19.02.2020. On

09.02.2020, the accused was referred for medical examination.

The witness being a Medical Officer, posted at Government

Hospital, Vapi, after examination of the accused, opined the

competency of the accused for intercourse and obtained a

necessary samples like semen, heir, blood group and saliava for

forensic science analysis. The accused was second time referred

to the witness on 19.02.2020 for DNA profile. The witness in his

chief-examination stated that for DNA analysis, she had filled up

necessary forms and took the necessary blood samples from the

body of the accused and sent the samples to the FSL Surat.

(3)Gaurishankar Rajkumar Shah (PW -3) &Aartiben

Gaurishankar Shah (PW-4): Both this witnesses are mother

and father of the deceased child. So far main incident of murder

and rape is concerned, they are not the witness of the incident

and later on, they came to know that the accused was the author

of the crime.

(4)Sumandevi Jaiswal (PW:5): This witness being a neighbour

and occupant of Room No.5 has deposed about the incident and

she has also admitted the contents of her statement recorded

under Section 164 of the Cr.P.C. (Exh.31). However, facts

remain that she was not the witness of the incident. She deposed

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against the accused to the extent that on the day of incident in

noon hours, she saw the accused was roaming in the corridor of

the colony.

(5)Ashadevi Shravnbhai Shah (PW:6): This witness is the next

door of the deceased child and was occupant of Room No.6. She

is the relative of the accused and the accused was used to come

to her house for lunch and dinner for which she was charging

monthly Rs.2000/-. She has stated in her chief examination that

on 06.02.2020, the accused Pradeep came to her house and was

asking to refund of Rs.800/-. She has further stated that after

deducting Rs.300/-, she had paid Rs.500/- to the accused. On the

aspect of incident, she has stated that on 07.02.2020, she had

called the deceased by shouting as she intends to give utensil but

there was no response from her. She has further stated that

thereafter, she had pushed the door and when she entered into

room, she found that the deceased was hanging in the ceiling fan

and T.V. was on and volume in high speed. She has further

stated that she had informed the occupier of Room No.8 and

thereafter, Sunilbhai, who is the owner of the rooms, came at the

place. She has further stated that the accused Pradeep confessed

before her that the deceased was strangulated by him and he had

done everything. However, on the material aspect, the witness

failed to clarify the incident part, as a result, she had been

declared hostile. In the cross examination, after declaring her

hostile, she admitted that at the time of incident, she had seen the

accused in the corridor of the colony. She has further admitted

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in the cross examination that when she was called at the police

station, the accused confessed his guilt before her. She has also

identified the locket from the seized articles and clarified that the

accused was used to wear it.

(6)Sunil Babubhai Patel (PW:7): This witness is the owner of the

colony which he has constructed in one plus two floor and the

same is situated in the Tanki Faliya at Vapi. The witness has

admitted that Room No.7 was being given on rent to father of the

child. The witness has further stated that on 07.02.2020, he

received an information for the occupants of the colony that the

deceased child was found hanging on the ceiling fan of Room

No.7. He is also inquest witness of panchnama of incident at

Exh.34.

(7)Roshankumar Shah (PW:8): This witness is the brother of the

deceased child and was not having any personal knowledge

about the incident and involvement of the accused.

(8)Satish Patel (PW:9): This witness was cited as a panch witness

of the recovery of seized articles like locket, one thread,

allegedly recovered from the place of the incident.

(9)Manohar Chaudhary (PW:11): This witness was cited as

panch witness of panchnama at Exh.56, whereby the accused on

his disclosure statement, voluntarily show the place of incident.

(10)Pushpadevi Pathak (PW:14): This witness being a occupant of

Room No.1 was neighbour of the deceased child. The witness in

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her chief examination stated that on the day of incident, she was

sitting in the corridor of the colony and doing embroidery work

and at that time, the deceased child came from her school and

after formal conversation with her, she proceeded towards Room

No.7 and the accused Pradeep was in colony and had followed

the deceased child and thereafter, she did not have noticed the

presence of the accused in the corridor of the colony. The

witness has further stated that the next door neighbour of the

child Ms.Aartidevi and informed everyone about the incident.

She has further stated that her statement was recorded twice i.e.

one by police and second one by Magistrate (Exh.63). In the

cross examination, she has stated that in her police statement, she

did not have disclosed the facts that the accused Pradeep had

followed the deceased.

(11)Sardarsingh Jivabhai Bariya (PW:15): This witness had

investigated the case and filed the chargesheet against the

accused. The witness at the relevant time, was posted as Police

Inspector with Tapi Town Police Station. In the chief

examination, he stated that on 07.02.2020, he recorded the FIR

of the father of the child and after registration of the offence, he

was handed over the investigation of the case. The witness has

stated that during the course of investigation, on the basis of

inquest, the dead body of the deceased was sent for post-

morterm and after the opinion of the P.M. doctor, he made an

addition of the offences of rape, etc. The I.O. has further stated

that as a part of investigation, he recorded the statement of the

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witnesses and referred the witnesses to the Magistrate concerned

for recording their statement under Section 164 of the Cr.P.C.

The I.O. has further stated that in the presence of FSL officer, he

drew the panchnama of scene of occurrence and seized and

recovered the necessary things for forensic analysis like locket

and related things. So far as arrest of the accused is concerned,

the I.O. has stated that during the course of investigation, it

revealed that the accused was the author of the crime and after

preliminary investigation of him, he was arrested and sent for

medical examination and also seized his cloths. The I.O. has

further stated that on the basis of voluntary disclosure statement

of the accused, the panchnama of scene of occurrence as pointed

out by the accused being drawn and another panchnama of

pointing out the whereabouts of threads and etc. being drawn in

the presence of panchas. The I.O. in his chief examination has

further stated that the accused was referred to the Government

Medical Hospital for DNA profiling and after collecting the

necessary samples, the same were deposited with the FSL Surat

and after receiving the necessary report from the FSL, the

chargesheet against the accused came to be filed before the

Jurisdictional Magistrate.

In the cross examination, the I.O. has admitted that there was

suspicion in his mind about the involvement of the accused

because of his presence in the corridor of the colony. The I.O.

has also admitted that the doctor in the form of heart can easily

available in the market.

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Submissions:

10.We have heard learned counsel Mr.Kalpesh Pandit appearing for

and on behalf of the accused appellant and Mr.Ronak Raval, learned

Additional Public Prosecutor for the respondent – State.

11.Mr.Kalpesh Pandit, learned counsel, while assailing the

impugned judgment of conviction and order of death sentence, has

urged the following submissions:

(A)In the present case, the prosecution has failed to prove the charge

beyond reasonable doubt, as it is fundamental principles of criminal

jurisprudence that the accused is presumed to be innocent till he is

proved to be guilty.

(B)In the facts of the present case, the accused came to be arrested

on the basis of suspicion as there is nothing on record to prove that the

witnesses have seen the accused entering into the room no.7 where the

child was alone seeing the T.V. after completing her lunch. The

accused was used to come to the house of witness Aartidevi for taking

lunch and dinner and he was known to everyone and therefore, his

presence as stated by witnesses believed as it is, would not be a ground

to infer that, he was the author of the crime. Thus, the appellant had

been implicated in the offence on the basis of suspicion and it is settled

position of law that doubt cannot be replaced of proof and suspicion

howsoever grave, it may be, is not substitute of proof and therefore, the

burden lies on the prosecution to prove the allegations beyond

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reasonable doubt and in the facts of the present case, the prosecution

failed to prove the charge beyond reasonable doubt.

(C)It is the case of the prosecution that the accused made

extrajudicial confession of his guilt before the witness Ashadevi

(PW:6). On this aspect, it was submitted that the evidence of

extrajudicial confession is inherently weak evidence and before acting

upon it, strong corroboration is required and the confession should be

voluntarily, true and credible to infer the involvement of the accused.

In the present case, the witness Ashadevi has not stated in clear terms

that the accused has confessed his guilt in an unequal terms and the

words spoken by the witness is not clear conveying that the accused is

the perpetrator of the crime. Thus, the evidence of Ashadevi does not

inspire confidence on the aspect of extrajudicial confession of the

accused.

(D)That the deceased was alone at the Room No.7 which situated in

the residential area of City Vapi and there were 10 to 15 rooms in the

chawl and the area of the chawl was thickly populated and if it is so,

then it could be highly impossible for the accused remained with the

child for about two hours and that too, in the knowledge of the

witnesses who had witnessed that the accused was roaming in the

corridor of the colony and was following the child. Thus, the presence

of the accused in the room is not established in clear terms.

(E)The accused was referred to Government Hospital for medical

examination and after 10 days of the incident i.e. 19.02.2020, he was

again referred to Government Hospital for DNA Profiling. The report

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of the DNA profiling being produced in the evidence of I.O. and has

not been proved by examining the scientific officer and therefore, the

DNA profiling report cannot be admitted in evidence ipso facto by

virtue of Section 293 Cr.P.C. and it is necessary for the prosecution to

prove that the techniques of DNA profiling were reliably applied by

the experts (Rahul Vs. State of Delhi, Ministry of Home Affairs,

2023 (1) SCC 83).

(F)The prosecution case rests on the circumstantial evidence and

inference of guilt can only be justified when all the incriminating facts

and circumstances are found to be incompatible with the innocence of

the accused or the guilt of any other person and therefore, the

incriminating circumstances have not been cogently and firmly

established and the chain of incriminating circumstances is not

complete to arrive at a conclusion that within all human probabilities,

the crime was committed by the accused and non-else.

(G)The defence of the accused that he was picked up from his

residence by the police and took him to the railway track and

threatened him to confess the guilt, which seems to be probable and

acceptable.

12.In such circumstances, as referred to above, Mr.Kalpesh Pandit,

learned counsel prayed that there being merits in this appeal and the

same may be allowed and further requested that the order of conviction

and death penalty be set aside and the appellant may be acquitted of the

charges of murder and rape.

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13.Alternatively, it was submitted that in any event, if this Court

after appreciation of the evidence would convince that the appellant

accused is the author of the crime, then the death sentence as awarded

by taking into account the grave nature of the crime without

considering the possibility of the reformation is not sustainable in eye

of law as no special reasons being assigned by the Trial Court and

admittedly, the accused is not a harden criminal and menace to the

society. The accused is aged of 20 years and possibility of his

information cannot be ruled out, and therefore, case is not one of the

rarest of rare case.

14.Mr.Ronak Raval, learned Additional Public Prosecutor for the

respondent – State, vehemently opposed the appeal and contended that

the Trial Court has not committed any error in holding the accused

appellant guilty of the offence. That the identity of the accused is not in

dispute and on the day of incident, he had not gone to the factory

where he was working and the witnesses are consistent on the aspect

that on the day of incident, he was roaming of corridor of the colony

and more particularly, witness Pushpadevi Pathak (PW:14) has stated

that the accused was following the deceased child and thereafter, he

was disappeared for some time. The evidence of Pushpadevi being

corroborated by her own 164 statement Exh.63. The witness Ashadevi

(PW:6) in clear terms has stated that the accused Pradeep confessed his

guilt before her and there was no coercion or other factors for

confessing the guilt by the accused and therefore, the extrajudicial

confession being made voluntarily and there was no reason for

Ashadevi to depose falsely against the accused. Thus, in the noon

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hours, when the deceased child was alone, the accused by following

her entered into the room and when she resisted, the accused

strangulated her by throttling and then, committed a rape upon her and

the said facts being corroborated by the medical evidence as so many

injures were found on the private parts of the deceased and considering

the age of the deceased, the theory of suicide cannot be accepted and

the only inference would arise that in order to screen the offence, the

accused hanged the deceased with the help of scarf so that the theory of

suicide could be believed. In such circumstances, the presence of the

accused at the place of the incident, and subsequently, confessing his

guilty before the witness would establish and prove that he was the

author of the crime as the FSL report would further corroborate the

story of the prosecution on the aspect of involvement of the accused in

the crime.

15.In the above learned Additional Public Prosecutor prayed that

there being no merits in the appeal, and the same may be dismissed.

16.On the alternative submission, the learned Additional Public

Prosecutor argued that this is a fit case imposing of capital punishment

and the child was defenceless and the manner in which the crime was

committed, the imposition of any other punishment would be

completely inadequate and would not meet end of justice and therefore,

no interference warranted by this Court in the capital punishment.

17. We have heard learned counsel for both the parties and perused

the case records. In our opinion, the following facts are not in dispute :

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(i) The identity of the appellant accused is not in dispute, as the

complainant and the accused belonged to same community;

(ii)The incident of murder and rape was occurred at the room no. 7,

Gitanagar, Tanki Falia, Vapi and the colony was known as ‘Sunilbhai’s

chawl’.

(iii)On 07.02.2020, the parents of deceased child aged about 9 years

and her brother went to their work place and their routine time was

8=00 morning to 7=00 evening. The deceased child was studying in

Mother Teresa School at Vapi and the school time was 7=00 morning

to 2=00 noon and as per their routine practice, the deceased child used

to take her lunch after returning from the school and till evening, she

stayed in the room alone and admittedly on the date of incident, in the

noon hours i.e. 2=00 to 4=00 pm she was alone at home and watching

TV.

(iv)On 07.02.2020, the neighbour, occupier of room no. 6 –

Aashadevi PW-6, had noticed the deceased child in a hanging position

with the ceiling fan of the room. She informed the owner of the chawl

and in turn, the parents and brother being informed by the PW-7 Sunil

Patel. The dead body was taken down and upon arrival of the police,

the father PW-3 Gaurishankar Shah lodged an FIR for the act of rape

and murder against the unknown person.

(v)The appellant accused Pradip was used to come in the chawl for

lunch and dinner at this aunt’s house (Aashadevi PW:6).

(vi)The deceased had sustained injuries on her private parts and the

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cause of death was asphyxia on account of manual strangulation

(throttling) and she was sexually abused.

18.In the aforesaid admitted facts and considering the medical

evidence, it is proved and established that, the death of deceased was

homicidal and she was sexually abused.

19.In order to prove the charge, the prosecution has mainly relied on

the following incriminating circumstances;

(i)extrajudicial confession of the accused before the witness

Aashadevi PW-6,

(ii)theory of last scene together, as the accused had followed the

deceased when she was about to enter into the room,

(iii)locket of the accused found at the place of occurrence,

(iv)forensic evidence like blood stain of the accused on the half pant

of the deceased and presence of the semen on the cloths.

20.Having regard to the evidence on record, the only question that

arises for our consideration is as to whether the circumstances as

referred forms a chain of events pointing only to the guilt of the

accused and none else?

21.Before we proceed with the analysis of the evidence and

contentions of the parties, it is necessary to briefly examined the law

relating to circumstantial evidence. It is settled position of law that, the

circumstantial evidence is not direct to the point in issue but consists of

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evidence of other facts which are closely associated with the facts in

issue that taken together, they formed a chain of circumstances from

which, the existence of the principal fact can be legally inferred or

presumed, the chain must be complete and each fact forming the part

of chain must be proved. The circumstances from which, the

conclusion of guilt is to be drawn should be in the first instance fully

established and thereafter, circumstances taken cumulatively should

form a chain of evidence so complete as not to leave any reasonable

ground for the conclusion consistent with the innocence of the accused

and must further show that in all probabilities the offence must have

been committed by the accused (Sharad Birdhichand Sarda Vs.

State of Maharashtra , AIR 1984 SC 1622).

22.In the present case, on 07.02.2020, the alleged incident of

murder and rape was being occurred in the room no. 7 of the common

chawl situated in the area of Gitanagar, Vapi and the age of the victim

was 9 years and she was studying in 4

th

standard and at relevant time,

no one present at the home and taking the disadvantage of the situation,

she was strangulated to death and then she was sexually abused and to

believe the incident as suicide, she was hang with the scarf on the

ceiling fan. In such circumstances, there is no dispute that the death of

the deceased was homicidal in nature and having regard to the injuries

referred by the PM doctor, it is proved and established that deceased

child was subjected to rape. In that context, the issue is whether the

prosecution able to prove the charge of murder and rape against the

appellant accused ?

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Analysis & findings:

23.We have carefully read the evidence of witnesses. On perusal of

the testimony of the witnesses, it is proved and established that on

07.02.2020, the appellant accused did not attend his labour work and

remained present in the area of place of incident. Thus, he was very

much present during the noon hours i.e. from 02:00 to 04:00 hours,

during which, the alleged offence had occurred, as the witnesses have

categorically stated the presence of the accused at the place. The

witness PW-14 Pushpadevi Pathak, being a neighbour, had made

conversation with the victim on the day of incident, when she came

returned from the school and at that time, when the victim on the way

to her home i.e. room no. 7, the accused had followed her and then he

disappeared. The evidence of the witness PW-14 does inspire

confidence and her version seems to be natural and nothing being

brought on record to substantiate that she was telling lie or tried to

falsely implicate the accused because of shocking incident. The

statement of the witness Pushpaben was being recorded by the Judicial

Magistrate of Vapi Court and same is produced at Exh. 63. There is no

contradiction in the police statement as well as 164 statement with

respect to the conduct of the accused – appellant and his entering into

the room of the deceased. In both the statements, she had stated about

the true facts of the incident and conduct of the accused and in the

deposition, the version is same, as disclosed before the police as well

as the Magistrate and therefore, on 07.02.2020, the accused being a

known person of the chawl, had followed the victim and considering

his conduct of disappearance for two hours would be reason to infer

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that, he was in the room of the victim. It is relevant to note that, when

the incident was reported to the parents and dead body of the victim

taken down, the accused was present in the chawl and had

accompanied the mother of the deceased PW-4 Artidevi to the hospital.

Thus, therefore the incriminating circumstances as referred, is

conclusively proved and further established that, the accused appellant

at the time of incident, was remained present in the place of occurrence

and after following the deceased, he entered into the room.

24.The another circumstances relied is the extrajudicial confession

of the accused before PW-6 Aashadevi. The witness is related to the

accused as well as complainant PW-3 and as per her evidence, on

06.02.2020 i.e. day before the incident, the accused came to her and

demanded the due amount of Rs.300/- and after deducting Rs.300/- she

paid Rs.500/- to the accused. On the day of incident, the accused was

found present at the place and according to say of the witness, in the

noon hours, he was roaming near the house of the deceased and

considering her relationship with the accused, the accused confessed

before her that, “he killed the deceased by throttling and everything

is being done by him.” It is in the context of the evidence of the

witness, we are required to examine the question as to whether the

accused had voluntarily made confession and whether his confession is

true or being relied upon as evidence to implicate the accused. Before

we examine the legality and admissibility of the confession, we take

the notice of the fact that the witness Aashadevi on the aspect of

material fact, did not have supported the case of the prosecution and

she was declared hostile. However, in the chief-examination, the

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witness has deposed against the accused about his confession of his

guilt as referred above and after declaring her hostile, she stick to her

version about the extrajudicial confession of the accused, and

therefore, though the witness declared hostile, her entire evidence

cannot be treated as effaced from the record and her testimony to the

extent found reliable can be acted upon (Bhagwansinh Vs. State of

Haryana 1976 (1) SCC 389). In such circumstances, the evidence of

PW-6 on the aspect of extrajudicial confession of the accused before

her cannot be rejected, subject to the taste of its admissibility and

voluntariness of the confession.

25.We may profitably refer the law relating to extrajudicial

confession as in the present case, the extrajudicial confession made by

the accused before PW-6. It is settled position of law that, an

extrajudicial confession, if voluntarily and true, in a fit state of mind,

can be relied upon by the Court and the value of the evidence depends

upon the reliability of the evidence to whom it is made and conviction

can be based thereon, if the evidence about the confession comes from

a witness, who appears to be unbias, not even remotely inimical to the

accused. It is also required to be proved that the words spoken by the

witness should be clear, unambiguous and unmistakenly convey that,

the accused is the perpetrator of the crime and ordinarily, the

confession should be corroborated by some other material and this

requirement of corroboration is a matter of prudence and not an

invariable rule of law and at the same time, it is bear in mind that, the

extrajudicial confession is a weak piece of evidence and wherever the

court upon due appreciation of the entire evidence of the prosecution

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intends to base a conviction on the extrajudicial confession, it must be

ensured that same inspires confidence and is corroborated by other

evidence.

26.In light of the aforesaid principles of law and applying the same

to the facts of present case, we have carefully examined the evidence

of PW-6 Aashadevi and found that, her evidence on the aspect of

extrajudicial confession clearly convey the words spoken by the

accused – appellant. The witness is related to the accused and despite

of this, she does not deviate from her stand about the facts of

extrajudicial confession made by the accused. Thus, the evidence of

PW-6 does inspire confidence and truthful and there is no reason or

motive for her to depose against the accused with intention to falsely

involved him in the crime. The presence of the accused as referred by

the witness PW-6 is being corroborated by the other witnesses and

during the time of offence, he was very much in the area of the offence

and therefore, the confession of guilt before the witness seems to be

natural and in a free atmosphere, the accused confessed before the

witness about the killing of deceased and committing rape upon her.

Thus, the evidence of extrajudicial confession is being made

voluntarily and made in a free state of mind by the accused and there

was no ill-will or bias on the part of the witness against the accused

and thus, the piece of evidence in the form of extrajudicial confession

does inspire confidence and is corroborated by the other prosecution

evidence and we do not find any material discrepancies or inherent

probabilities in the extrajudicial confession. In such circumstances, it is

proved and established that the extrajudicial confession made before

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PW-6 is true, voluntary, truthful and has support by other prosecution

evidence.

27. The next circumstances relied upon by the prosecution is the

locket (pendent) of the accused allegedly found in the room where the

offence was committed. The witnesses being a close relatives are

consistent on this aspect that, the accused was used to wear a locket (in

the form of double heart) and admittedly same was found at the place

of occurrence. In such circumstances, the another incriminating piece

of evidence is also pointing towards the involvement of the accused in

the crime.

28.The next circumstances is the forensic science analysis report

which positively signaling the involvement of the accused and the

evidence of forensic analysis being a corroborative piece of evidence

can be admitted and read against the accused. In the facts of the present

case, the samples for forensic chemical analysis being collected and

deposited before the FSL, Surat Laboratory. The half pent of the

deceased child was having blood group – A which is of accused

appellant and semen of the same group being found in the vaginal

swab. So far as DNA report is concerned, it has been directly referred

in the evidence of I.O. and accordingly, it was admitted in the

evidence. In our opinion, DNA profiling report cannot be considered

and admitted in the evidence because the prosecution has not examined

the scientific officer to prove the techniques of DNA profiling. In the

case of Rahul Vs. State of Delhi (2023 (1) SCC 83), the Supreme

Court, while dealing with the identical issue, has held that the DNA

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profiling report cannot be admitted in evidence ipso facto by virtue of

Section 293 of Cr.P.C. and it is necessary for the prosecution to prove

that the techniques of DNA profiling were reliably applied by the

expert. In the present case, scientific officer who had prepared and

conducted the case has not been examined and therefore, the DNA

report cannot be admitted and read against the accused. However, we

must clarify that the general reports of the forensic chemical analysis is

being taken into consideration and as such, even if we exclude the

DNA profiling report, the general report of the Surat Forensic

Laboratory can be read in evidence.

29.For the reasons recorded hereinabove, and having regard to the

evidence, and conduct of the accused, the incriminating circumstances,

as referred in the preceding para of this judgment stands firmly

established and chain of events conclusively as referred above, which

give rise to inference that the accused was the author of the crime and

none-else. Thus, in our opinion, the prosecution succeeds in proving

the charge against the appellant accused that on 07.02.2020, at the

Room No.7 of common chawl, situated at Gitanagar, Vapi, the

deceased child was killed by manual strangulation (throttling) and

then, she was sexually abused and her dead body with the help of scarf

was being hanged in the ceiling fan, so as to demonstrate the act of

suicide.

30.We do not agree with the submissions that the accused has been

implicated on the basis of suspicion and findings of conviction are

based on surmises and conjectures, as the circumstances relied by the

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prosecution are conclusively proved and established and taking it

cumulatively formed a chain so complete that there is no escape from

the conclusion that within all human probabilities, the crime has been

committed by the accused and none-else and therefore, the motive

clearly shows that the accused committed a murder and rape to satisfy

his lust and in order to screen his offence, at the relevant time, he

increased the voice the T.V. so that no one could notice the scream of

the deceased and thereafter, he hanged the deceased with the support of

scarf. So, we do not have any slightest doubt in our mind that the

accused being implicated in the crime on the basis of suspicion. At this

point, it may be also relevant to mention an observation made by Lord

Denning, J. in Miller Vs. Miller of Pension (1947) 2 ALL ER 372,

373H;

“That degree is well settled. It need not certainty but it must carry a

high degree of probability. Proof beyond reasonable doubt does not

mean proof beyond the shadow of a doubt. The law would fail to

protect the community if it admitted fanciful possibilities to deflect the

Court of justice….”

Thus, the requirement of criminal trial is not to prove the case

beyond all doubt but beyond reasonable doubt and such doubt cannot

be imaginary, fanciful, trivial or merely a possible doubt, but a fair

doubt based on reasons and common sense (Ramakant Rai Vs.

Madan Rai (2003) 12 SCC 395. In such circumstances, in the present

case, the prosecution succeeds in proving the charge beyond

reasonable doubt and there is no doubt about it.

31.We may now deal with the alternative prayer with regard to

capital punishment awarded by the Trial Court.

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32.The Trial Court vide its judgment dated 30.01.2023 convicted

the appellant accused for the murder and rape of the deceased child

aged about 9 years under Sections 302, 201 and 376(A), (B) of the

Indian Penal Code and Sections 4 and 6 of the POCSO Act. On the

issue of sentence, the Trial Court on the same day i.e. 30.01.2023,

imposed the sentence of capital punishment. Consequently, the

reference in terms of Section 366 for confirmation of death sentence

being forwarded to this High Court.

33.Mr.Kalpesh Pandit, learned counsel appearing for the appellant

accused has submitted that the Trial Court has not recorded the special

reasons for awarding capital punishment for satisfying the criteria that

life sentence is rule and death is exception and as such there is no

discussion on the aspect whether the accused would be menace or there

is no chances of his reformation and imposing life sentence would be

completely inadequate and would not met end of justice and therefore,

the capital punishment is not sustainable in eye of law. In support of

the contentions, heavy reliance being placed on the case of Supreme

Court delivered in the case of Sundar @ Sundarrajan Vs. State of

Inspector of Police (2023 LiveLaw Supreme Court 217) to contend

that the rarest of rare doctrine requires that the death sentence not be

imposed only by taking into account the grave nature of the crime but

only if there is no possibility of reformation of the accused.

34.On the other hand, learned Additional Public Prosecutor for the

State has submitted that the offence had been of extreme depravity,

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which shocks the conscience, more particularly looking to the age of

the victim and at the relevant time, she was helpless and the manner in

which she was killed and abused sexually demonstrates that these

mitigating factors would prevail over the factors pertaining to the

accused and therefore, the plea of non-sustainability of the capital

punishment has no merits.

35.In the facts of the present case, the Trial Court after pronouncing

the judgment of conviction, after affording an opportunity of hearing,

on the same day, awarded imposed a capital punishment. The law is

settled on this aspect. The Trial Court after pronouncing the judgment

of conviction should have adjourned the case for further hearing on the

sentence of capital punishment because under Sections 235(2) of

Cr.P.C., it is mandatory for the Court to hear the accused and provide

sufficient opportunity to him for furnishing the necessary information

on mitigating circumstances. It is, thus, clear that the learned Trial

Court has not given adequate opportunity to the accused to furnish the

mitigating circumstances in his favour neither it tried to collect the

same, nor discussed what the mitigating circumstances are available. In

this connection, we may profitably refer the case of Manoj Vs. State

of Madhya Pradesh (2023 (2) SCC 353), wherein the Supreme Court

gave emphasis on practical guidelines to collect mitigating

circumstances, which are as follows:

“248. There is urgent need to ensure that mitigating circumstances

are considered at the trial stage, to avoid slipping into a retributive

response to the brutality of the crime, as is noticeably the situation

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in a majority of cases reaching the appellate stage.

249. To do this, the trial Court must elicit information from the

accused and the State, both. The State must for an offence carrying

capital punishment at the appropriate stage, produce material

which is preferably collected beforehand, before the Sessions Court

disclosing psychiatric and psychological evaluation of the accused.

This will help establish proximity (in terms of timeline), to the

accused person's frame of mind (or mental illness, if any) at the

time of committing the crime and offer guidance on mitigating

factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for

the other factors of (3) and (4), an onus placed squarely on the

State conducting this form of psychiatric and psychological

evaluation close on the heels of commission of the offence, will

provide a baseline for the appellate Courts to use for comparison

i.e. to evaluate the progress of the accused towards reformation,

achieved during the incarceration period.

250. Next, the State, must in a time-bound manner, collect,

additional information pertaining to the accused. An illustrative,

but not exhaustive list is as follows:

(a) Age;

(b) Early family background (siblings, protection of parents,

any history of violence or neglect);

(c) Present family background (surviving family members,

whether married, has children, etc.);

(d) Type and level of education;

(e) Socio-economic background (including conditions of

poverty or deprivation, if any);

(f) Criminal antecedents (details of offence and whether

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convicted, sentence served, if any);

(g) Income and the kind of employment (whether none, or

temporary or permanent, etc.);

(h) Other factors such as history of unstable social behaviour,

or mental or psychological ailment(s), alienation of the

individual (with reasons, if any), etc.

This information should mandatorily be available to the trial Court,

at the sentencing stage. The accused too, should be given the same

opportunity to produce evidence in rebuttal,towards establishing all

mitigating circumstances.

251. Lastly, information regarding the accused's jail conduct and

behaviour, work done (if any), activities the accused has involved

themselves in, and other related details should be called for in the

form of a report from the relevant jail authorities (i.e. Probation

and Welfare Officer, Superintendent of Jail, etc.). If the appeal is

heard after a long hiatus from the trial Court's conviction, or High

Court's confirmation, as the case may be, a fresh report (rather

than the one used by the previous court) from the jail authorities is

recommended, for a more exact and complete understanding of the

contemporaneous progress made by the accused, in the time

elapsed. The jail authorities must also include a fresh psychiatric

and psychological report which will further evidence the

reformative progress, and reveal post-conviction mental illness, if

any.

252. It is pertinent to point out that this Court in Anil -Vs.- State of

Maharashtra : (2014) 4 Supreme Court Cases 69 has in fact

directed criminal courts to call for additional material:

(SCC p. 86, para 33)

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“33.…Many a times, while determining the sentence, the courts

take it for granted, looking into the facts of a particular case, that

the accused would be a menace to the society and there is no

possibility of reformation and rehabilitation, while it is the duty of

the Court to ascertain those factors, and the State is obliged to

furnish materials for and against the possibility of reformation and

rehabilitation of the accused. The facts, which the courts deal with,

in a given case, cannot be the foundation for reaching such a

conclusion, which, as already stated, calls for additional materials.

We, therefore, direct that the criminal courts, while dealing with the

offences like section 302 I.P.C., after conviction, may, in

appropriate cases, call for a report to determine, whether the

accused could be reformed or rehabilitated, which depends upon

the facts and circumstances of each case.”

We hereby fully endorse and direct that this should be implemented

uniformly, as further elaborated above, for conviction of offences

that carry the possibility of death sentence.”

36.Thus, the law requires the court to record special reasons for

awarding such sentence. In the case of Ramnaresh & ors. Vs. State of

Chhatisgarh (2012 AIR SC 1917), after referring the earlier

judgments on the death sentence including Bachchansingh vs. State

of Punjab (1980 2 SC 684) and Machhisingh vs. State of Punjab

(1983 3 SCC 470), held that, before imposing death sentence, the trial

court has to consider matters like nature of offence, how and under

what circumstances it was committed, the extent of brutality with

which the offence was committed, the motive for the offence, the

possibility of the convict being reformed or rehabilitated, adequacy of

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the sentence of life imprisonment and other attendant circumstances.

The Supreme Court further clarified that, the factors referred

hereinabove cannot be similar or identical in any two given cases and

therefore, it has been laid down that, it is imperative for the court to

examine each case on its own facts, in light of the enunciated

principles and then, arrive at final conclusion whether the case in hand

is one of the rarest of rare cases and imposition of death penalty alone

shall serve the ends of justice. In order to examine the aforesaid aspect

in some greater depth and with objectivity, the Supreme Court

reiterated the various guiding factors by referring the various

judgments. Paras 60 to 71 which reads thus:

“60.In State of Maharashtra V/s. Goraksha Ambaji Adsul [(2011) 7

SCC 437], wherein this Court discussed the law in some detail and

enunciated the principles as follows :

"30. The principles governing the sentencing policy in our criminal

jurisprudence have more or less been consistent, right from the

pronouncement of the Constitution Bench judgment of this Court in

Bachan Singh V/s. State of Punjab. Awarding punishment is certainly

an onerous function in the dispensation of criminal justice. The court

is expected to keep in mind the facts and circumstances of a case, the

principles of law governing award of sentence, the legislative intent

of special or general statute raised in the case and the impact of

awarding punishment. These are the nuances which need to be

examined by the court with discernment and in depth.

61. In Machhi Singh & Ors. V/s. State of Rajasthan [(1983) 3 SCC

470], this Court stated certain relevant considerations like the

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manner of commission of murder, motive for commission of murder,

anti-social or socially abhorrent nature of the crime, magnitude of

crime and the personality of the victim of murder. These

considerations further demonstrate that the matter has to be

examined with reference to a particular case, for instance, murder of

an innocent child who could not have or has not provided even an

excuse, much less a provocation for murder. Similarly, murder of a

helpless woman who might be relying on a person because of her age

or inrmity, if murdered by that person, would be an indicator of

breach of relationship or trust as the case may be. It would neither be

proper nor probably permissible that the judicial approach of the

court in such matters treat one of the stated considerations or factors

as determinative. The court should examine all or majority of the

relevant considerations to spell comprehensively the special reasons

to be recorded in the order, as contemplated under Section 354(3) of

the Cr.P.C.

62. In the case of Dhananjoy Chatterjee @ Dhana V/s. State of West

Bengal [(1994) 2 SCC 220] while arming the award of death

sentence by the High Court, this Court noticed that `in recent years,

the rising crime rate-particularly violent crime against women has

made the criminal sentencing by the courts a subject of concern'. The

Court reiterated the principle that it is not possible to lay down any

cut and dry formula relating to imposition of sentence but the object

of sentencing should be to see that the crime does not go unpunished

and the victim of crime, as also the society, has the satisfaction that

justice has been done to it.

63.The Court held as follows:-

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"15. In our opinion, the measure of punishment in a given case must

depend upon the atrocity of the crime; the conduct of the criminal

and the defenceless and unprotected state of the victim. Imposition of

appropriate punishment is the manner in which the courts respond to

the society's cry for justice against the criminals. Justice demands

that courts should impose punishment betting the crime so that the

courts reect public abhorrence of the crime.

The courts must not only keep in view the rights of the criminal but

also the rights of the victim of crime and the society at large while

considering imposition of appropriate punishment."

64. In this case, the Court was concerned with the case of a security

guard who had been transferred at the complaint of a lady living in

the ats with regard to teasing of her young girl child. The security

guard went up to the at of the lady, committed rape on her daughter

and then murdered her brutally. The Court found it to be a t case for

imposition of capital punishment.

65. Again, in the case of Surja Ram V/s. State of Rajasthan [(1996) 6

SCC 271], this Court armed the death sentence awarded by the High

Court primarily taking into consideration that there was no

provocation and the manner in which the crime was committed was

brutal. Noticing that the Court has to award a punishment which is

just and fair by administering justice tempered with such mercy not

only as the criminal may justly deserve but also to the rights of the

victims of the crime to have the assailant appropriately punished and

the society's reasonable expectation from the court for the

appropriate deterrent punishment conforming to the gravity of the

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offence and consistent with the public abhorrence for the heinous

crime committed by the accused.

66.The Court further held as under: (Suraj Ram case (1996) 6

SCC 271)

"18. After giving our anxious consideration to the facts and

circumstances of the case, it appears to us that for deciding just and

appropriate sentence to be awarded for an offence, the aggravating

and mitigating factors and circumstances in which a crime has been

committed are to be delicately balanced in a dispassionate manner.

Such act of balancing is indeed a dicult task. It has been very aptly

indicated in Dennis Councle McGautha V/s. State of California that

no formula of a foolproof nature is possible that would provide a

reasonable criterion in determining a just and appropriate

punishment in the innite variety of circumstances that may affect the

gravity of the crime of murder. In the absence of any foolproof

formula which may provide any basis for reasonable criteria to

correctly assess various circumstances germane to the consideration

of gravity of crime of murder, the discretionary judgment in the facts

of each case, is the only way in which such judgment may be

equitably distinguished."

67. This Court in Prajeet Kumar Singh V/s. State of Bihar [(2008) 4

SCC 434], B.A. Umesh V/s. Registrar General, High Court of

Karnataka [(2011) 3 SCC 85], State of Rajasthan V/s. Kashi Ram

[(2006) 12 SCC 254] and Atbir V/s. Government of NCT of Delhi

[(2010) 9 SCC 1] had conrmed the death sentence awarded by the

High Courts for different reasons after applying the principles

enunciated in one or more afore-referred judgments.

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68. Now, we may notice the cases which were relied upon by the

learned counsel appearing for the appellants and wherein this Court

had declined to conrm the imposition of capital punishment treating

them not to be the rarest of rare cases.

69. In Ronny @ Ronald James Alwaris Etc. V/s. State of Maharashtra

[(1998) 3 SCC 625], the Court while relying upon the judgment of

this Court in the case of Allauddin Mian & Ors. V/s. State of Bihar

[(1989) 3 SCC 5], held that ...the choice of the death sentence has to

be made only in the `rarest of rare' cases and that where culpability

of the accused has assumed depravity or where the accused is found

to be an ardent criminal and menace to the society….”

70.The Court also noticed the above-stated principle that the

Court should ordinarily impose a lesser punishment and not the

extreme punishment of death which should be reserved for

exceptional cases only. The Court, while considering the cumulative

effect of all the factors such as the offences not committed under the

inuence of extreme mental or emotional disturbance and the fact that

the accused were young and the possibility of their reformation and

rehabilitation could not be ruled out, converted death sentence into

life imprisonment.

71. Similarly, in the case of Bantu @ Naresh Giri V/s. State of M.P.

[(2001) 9 SCC 615] while dealing with the case of rape and murder

of a six year old girl, this Court found that the case was not one of

the `rarest of rare' cases. The Court noticed that, accused was less

than 22 years at the time of commission of the offence, there were no

injuries on the body of the deceased and the death probably occurred

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as a result of gagging of the nostril by the accused. Thus, the Court

while noticing that the crime was heinous, commuted the sentence of

death to one of life imprisonment.”

37. Guided by the above principles and applying the same to the

facts of the present case, the trial court failed to conduct an inquiry to

ascertain the mitigating circumstances as well as to foreclose the

possibility of reformation and rehabilitation of the appellants accused

and also did not prepare a balance sheet of aggravating and mitigating

circumstances and there is no definite finding that the option of

imposing of any penalty other than death penalty is unquestionably

foreclosed and would be insufficient in the facts and circumstances of

the case and also did not observe that, the convict is beyond

reformation and would be a menace to the society if allowed to return

after specific period of time. Admittedly, so far criminal antecedent is

concerned, the appellant accused having no any such kind of past

antecedent nor he is habitual offender. The prosecution failed to place

on record the necessary data of the accused to show that he would

commit criminal acts of violence in the future. In such circumstances,

in our opinion, considering the age of the accused appellant, the

possibility of reformation and rehabilitation of him, cannot be ruled

out.

38.In view of the foregoing discussions and having regard to the

facts and circumstances of the present case, and striking balance

between the aggravating and mitigating circumstances of the case,

more particularly, the background of the accused, his social conditions

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as he was working as a labourer in the factory, it cannot be said that he

would be menace to the society in future. We may take the notice of

the fact that the crime was heinous and inhuman, but considering the

reasons as discussed above, it cannot be held with certainty that this

case falls in the “rarest of rare case”.

39.We are, therefore, inclined to convert the sentence imposed on

the appellant from death to life for the offences punishable under

Section 302 of the Indian Penal Code and Section 6 of the POCSO Act,

as a result, we are not confirming the death sentence as proposed by

the Trial Court.

40.Accordingly, the appeal is party allowed. The conviction of the

appellant for the offences punishable under Sections 302, 376(A)(B)

and 201 of the Indian Penal Code and Section 6 of the POCSO Act is

confirmed and upheld as recorded by the Trial Court. We commute the

death sentence into the one of life imprisonment. The confirmation

case stands dismissed. R & P be sent back to the concerned Trial Court

henceforth.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

Rakesh

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