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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.300-301 OF 2011

Sunder @ Sundararajan …. Apellant

Versus

State by Inspector of Police. …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J .

1.On 27.7.2007 Suresh aged 7 years, who lived with his mother

Maheshwari (PW1) at Karkudal village in Vridhachalam Taluk, left his

residence in the morning as usual, at about 8 a.m. to attend his school at

Vridhachalam. Suresh was a class II student at Sakthi Matriculation School at

Vridhachalam. Each morning, he along with other students from the same

village, would leave for school, in a school van at about 8.00 a.m. The same

school van would bring them back in the afternoon at about 4.30 p.m. On

27.7.2009, Suresh did not return home. Maheshwari (PW1) his mother got

worried and made inquiries. She inquired from Kamali (PW2), and from

another student from the same village, who used to travel to school in the

same van with Suresh. Kamali (PW2) told Maheshwari (PW1) that a man was

waiting alongside a motorcycle when the school van returned to Karkudal

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village on 27.7.2009. The man informed Suresh that his mother and

grandmother were not well. According to Kamali (PW2), the man told Suresh,

that he had been asked by Maheshwari (PW1) to bring Suresh to the hospital.

Based on the aforesaid assertions, Suresh had accompanied the man on his

motorcycle. After having inquired from Kamali (PW2), Maheshwari (PW1)

sought information from another student Malai, but could not gather any

positive information from her. Thereafter, she was informed by Kurinji Selvan

(PW3) belonging to the same village, that he had seen Suresh disembarking

from the Sakthi school van on 27.7.2009 at about 4.30 p.m. He also told her,

that a man standing alongside a motorcycle, had called out to Suresh and had

taken Suresh along with him on his motorcycle. Kurinji Selvan (PW3) advised

Maheshwari (PW1) to approach the police. Maheshwari (PW1) accordingly

proceeded to Police Station, Kammapuram, to register a complaint. The said

complaint was registered at 7 p.m. on the date of occurrence, i.e., on

27.7.2009 itself. Based thereon, Crime no.106 of 2009 was registered under

Section 366 of the Indian Penal Code.

2.At about 9.30 p.m. on the same day, i.e., on 27.7.2009 Maheshwari

(PW1) received a call on her mobile phone. The caller identified himself as

Shankar. The caller demanded a ransom of Rs.5 lakhs for the release of

Suresh. Immediately after the receipt of the aforesaid call, Maheshwari (PW1)

again rushed to the Police Station Kammapuram, and informed the Station

House Officer about the call received by her.

3.The investigating officer called Kasinathan (PW13), the then Village

Administrative Officer of village Karkudal, Taluka Vridhachalam, to the

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Vridhachalam Police Station. Having taken permission from the Tehsildar,

Kasinathan (PW13) and his assistant went to Vridhachalam. From there, they

went to the house of the accused, and in the presence of Kasinathan (PW13),

the two accused were apprehended. In the presence of Kasinathan (PW13),

the accused made confessional statements, leading to the recovery of three

mobile phone sets, two of which had sim cards. The accused also

acknowledged, having strangulated Suresh when ransom was not paid for his

release. The accused also confessed, that they had put the dead body of

Suresh in a gunny bag, and thereafter, had thrown it in the Meerankulam tank.

Based on the aforesaid confessional statement, in the presence of Kasinathan

(PW13), and on the pointing out of the accused, the dead body of Suresh was

retrieved by personnel belonging to the fire service squad. The dead body of

Suresh was found in a gunny bag which had been fished out of the above-

mentioned tank. The accused also made statements to the police, whereupon

the school bag, books and slate belonging to the deceased Suresh came to

be recovered from the residence of the accused, in the presence of

Kasinathan (PW13).

4.During the course of the investigation emerging out of the mobile

phones recovered from the accused, the police identified Saraswathi (PW8),

who affirmed that she had received a phone call from a person who called

himself Shankar, on 27.7.2009 at about 9 p.m. She also disclosed, that the

caller had enquired from her about the phone number of Maheshwari (PW1).

Saraswathi (PW8) had required the caller, to ring her up after sometime. She

had received another call from Shankar and had furnished the mobile phone

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number of Maheshwari (PW1) to him. Consequent upon the gathering of the

above information, the accused were charged under Sections 364-A (for

kidnapping for ransom), 302 (murder) and 201 (for having caused

disappearance of evidence) of the Indian Penal Code. The trial of the case

was committed to the Court of Session, whereupon, the prosecution examined

19 prosecution witnesses. The prosecution also relied on 18 exhibits and 10

material objects. After the statements of the prosecution witnesses had been

recorded, the statements of the accused were recorded under Section 313 of

the Code of Criminal Procedure. Despite having been afforded an

opportunity, the accused did not produce any witness in their own defence.

5.On the culmination of the trial, the accused-appellant Sunder @

Sunderajan was found guilty and convicted of the offences under Sections

364-A, 302 and 201 of the Indian Penal Code by the Sessions Judge, Mahila

Court, Cuddalore. For the first two offences, the accused-appellant was

awarded the death penalty along with fine of Rs.1,000/- each. For the third

offence, the accused-appellant was awarded 7 years rigorous imprisonment

along with a fine of Rs.1,000/-. Vide RT no.2 of 2010, the matter was placed

before the High Court of Judicature at Madras (hereinafter referred to as, the

High Court), for confirmation of the death sentence imposed on the accused-

appellant. The accused-appellant independently of the aforesaid, filed

Criminal Appeal no.525 of 2010 before the High Court, for assailing the order

of his conviction. Vide its common judgment dated 30.9.2010, the High Court

confirmed the death sentence imposed on the accused-appellant and

simultaneously dismissed the appeal preferred by Sunder @ Sundararajan.

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Thus viewed, the judgment rendered by the Sessions Judge, Mahila Court at

Cuddalore dated 30.7.2010 was affirmed by the High Court vis-à-vis the

accused-appellant.

6.The Court of Session acquitted Balayee, accused no. 2. It is not a

matter of dispute before us, that the acquittal of Balayae, was not contested

by the prosecution by preferring any appeal. It is therefore apparent, that for

all intents and purposes accused no.2 stands discharged from the matter on

hand.

7.It is not necessary to deal with the statements of all the witnesses, in so

far as the instant controversy is concerned. Even though the prosecution had

rested its case, on circumstantial evidence alone, it would be necessary to

refer to the statements of a few witnesses so as to deal with the submissions

advanced on behalf of the accused-appellant. The deposition of the relevant

witnesses is accordingly being summarized hereinafter.

8.Maheshwari (PW1) was the mother of the deceased Suresh. It was

Maheshwari (PW1) who had lodged the First Information Report at Police

Station, Kammapuram, on 27.7.2009. In her statement before the trial court,

she asserted that she had four children, three daughters and one son. Suresh

was her only son. She deposed, that she was running all domestic affairs of

her household at Village Karkudal in Taluk Vridhachalam by herself, as her

husband had gone abroad to earn for the family. She affirmed, that she was

also engaged in agriculture. She also asserted, that her son Suresh was

studying in Class II at the Sakthi Matriculation School, Vridhachalam. He

used to go to school, by the school van, and used to return along with other

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children from school, at about 4.30 p.m. As usual, on 27.7.2009, he had gone

to school in the school van at about 8.00 a.m. but since he had not returned at

4.30 p.m., she had gone out to search for him. She had enquired from other

students who used to travel in the same school van along with her son.

Kamali (PW2) informed her that her son Suresh had got down from the school

van on 27.7.2009, in her company. Kamali (PW2) also informed her, that as

soon as Suresh got down from the school van on 27.7.2009, the accused-

appellant who was standing near the neem tree along side his motorcycle,

called Suresh by his name, and told him that his mother and grandmother

were ill, and had required him to bring Suresh to them, on his motorcycle. At

the man’s asking, according to Kamali (PW2), Suresh sat on the man’s

motorcycle, and was taken away. Maheshwari (PW1) then enquired from

Malai, another student who used to travel by the same school van. Malai,

however, did not remember about the presence of Suresh. Finally,

Maheshwari (PW1) was told by Kurinji Selvan (PW3), a co-villager living in

Karkudal village, that he had seen Suresh getting down from the school van

and being taken away by a man on his motorcycle. Kurinji Selvan (PW3)

advised Maheshwari (PW1), to report the matter to the police. Based on the

aforesaid inputs, Maheshwari (PW1) deposed, that she had immediately gone

to Police Station, Kammapuram, and had lodged a report at 7.00 p.m. Having

returned to her village, Maheshwari (PW1) claims to have received a call on

her mobile phone at about 9.30 p.m. According to her, the caller was the

accused-appellant. The accused-appellant demanded a sum of Rs.5,00,000/-

for the safe release of her son Suresh. Consequent upon the receipt of the

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aforesaid phone call, Maheshwari (PW1) deposed, that she had returned to

the Police Station, Kammapuram, to apprise the police of the aforesaid

development. According to Maheshwari (PW1), the police informed her on

30.7.2009, that the body of her son had been recovered from a lake and had

been brought to Vridhachalam Hospital. In her statement, she affirmed having

identified the clothes, shoes and socks as also neck tie of her son Suresh.

She also identified his school bag which had the inscription ‘JAYOTH’. She

also identified his books as also the black colour slate having a green colour

beeding around it, as that of her son Suresh. She also identified the body of

her son when she set her eyes on him at Vridhachalam Hospital. During her

cross-examination, she deposed that she had not approached Kurinji Selvan

(PW3). It was Kurindi Selvan (PW3), who had approached her on seeing her

crying. When she disclosed to Kurinji Selvan (PW3) about her missing son,

he had informed her that he had seen her son Suresh disembarking from the

school van whereafter, Suresh had gone away with a man on a motorcycle.

9.Kamali entered appearance before the trial court as PW2. She

asserted that she was (at the time of her deposition) studying in the 6

th

standard at Sakthi Matriculation School, Vridhachalam. She affirmed that

Suresh, the deceased, was known to her. She deposed that on 27.7.2009,

she had gone to her school in the school van, wherein there were other

children from the village including Suresh. She also deposed that she along

with Suresh returned to Karkudal Village on 27.7.2009, at about 3.00 p.m. in

the school van. Suresh had got down from the school van, along with the

other children. When the van had arrived at the village, she had seen a man

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standing along side a motorcycle. After Suresh got down from the school van,

the man beckoned at Suresh. He informed Suresh, that his mother and

grandmother were ill, and that Suresh’s mother had asked him, to bring

Suresh to the hospital. She deposed that when she reached her house,

Maheshwari (PW1) had inquired about the whereabouts of her son, from her.

She had informed Maheshwari (PW1) the factual position as narrated above.

She also asserted, that she was questioned by the police during the course

whereof she had informed the police, that she could identify the accused. She

acknowledged that an identification parade was conducted by the Judicial

Magistrate at Cuddalore Central Prison, where she had identified the accused-

appellant, namely, the man who had taken Suresh on the motorcycle on

27.7.2009, when they had returned from school.

10.Kurinji Selvan deposed before the trial court as PW3. He stated that

Maheshwari (PW1), Kamali (PW2), as also the deceased Suresh, were known

to him. He stated that on 27.7.2009 at about 4.30 p.m. when he was going

towards his paddy field on his motorcycle, the Sakthi School van had dropped

the school children of his village, at the corner of the river path. He had also

stopped his motorcycle, there. He had seen the accused-appellant standing

near the neem tree along side a motorcycle. He identified the nature, as also,

the colour of the clothes worn by the accused-appellant. He confirmed, that

the accused–appellant had called out to Suresh by his name, whereupon,

Suresh had gone up to him. He deposed, that he had seen Suresh being

taken away by the man, on his motorcycle. He further deposed, that when he

was returning from his paddy field at about 5.30 p.m., he had seen

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Maheshwari (PW1) weeping. When he enquired from her, she told him, that

her son was missing. Kurinji Selvan (PW3) affirmed that he had informed her,

that a man had taken her son away on a motorcycle. He also advised

Maheshwari (PW1) to lodge a report with the police. He further deposed, that

the body of a child was recovered on 30.7.2009 and he was informed about

the same at about 8.00 a.m. The body had been recovered from Meerankulam

tank in Vuchipullaiyar Vayalapadi village. Having received the aforesaid

information, he had proceeded to the Meerankulam tank where he identified

Suresh, to the Inspector. He further deposed, that an identification parade

was conducted at the Cuddalore Central Prison, in presence of the Judicial

Magistrate. He affirmed, that he had identified the accused-appellant as the

person who had taken Suresh, when Suresh had disembarked from the

school van on 27.7.2009. He also asserted, that he had identified the

motorcycle, when he was shown two motorcycles, as the one on which the

accused-appellant had taken Suresh away on 27.7.2009.

11.The statement of M. Santhanam was recorded as PW6. He affirmed

that he was the Correspondent and Principal of Sakthi Matriculation School.

He also affirmed that Suresh was studying in his school in the 2

nd

standard.

He confirmed that Suresh had attended the school on 27.7.2009. He

produced the attendance register, wherein the presence of Suresh was duly

recorded.

12.Saraswathi (PW8) appeared before the trial court and deposed, that on

27.7.2009, she had received a call on her mobile phone bearing

No.9943020435 at about 9.00 p.m. The caller identified himself as Sankar

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and asked for the phone number of Maheshwari (PW1). She stated that she

had informed the caller, to ring her after a little while, by which time she would

retrieve the phone number of Maheshwari (PW1). Accordingly, the caller

again spoke to her on her mobile phone, whereupon, she had conveyed the

phone number of Maheshwari (PW1), to him.

13.A. Bashir, Judicial Magistrate No.1 appeared before the trial court as

PW10. He deposed that he had gone to the Cuddalore Central Prison on

25.8.2009 to conduct the identification parade. He had taken his office

assistant along with him. He had selected co-prisoners similar to the

accused-appellant to participate in the identification parade. Persons selected

by him were of the same height, weight, colour and beared. Out of these eight

persons selected by him, both Kamali (PW2) and Kurinji Selvan (PW3) had

identified the accused-appellant, in three different combinations.

14.Sunil (PW11), working as legal officer of the Vodafone Company, during

the course of his deposition before the trial court affirmed, that he was

required by the Inspector of Police, Vridhachalam, to provide him with the

details of Vodafone cell phone numbers 9946205961 and 9943020435 for the

period from 25.7.2009 to 28.7.2009. He affirmed that he had taken the

aforesaid details from the computer and given them to the Inspector of Police.

He confirmed that three calls had been made from sim number 9946205961,

upto 9.39 p.m. on 27.7.2009. He also affirmed, that phone number

9943020435 was in the name of Saraswathi (PW3).

15.Dr. Kathirvel appeared before the trial court as PW12. He had

conducted the post mortem on the dead body of Suresh on 30.7.2009. The

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dead body was identified by the police Constable, in the mortuary. He

asserted that the body was in a decomposed state. According to his analysis,

the child had died within 36 to 48 hours prior to the post mortem examination.

According to the opinion tendered by him, suffocation was the cause of the

death of the child. And that, the child, in his opinion, had died prior to his

being drowned in the water.

16.Kasinathan (PW13), the Village Administrative officer, Karkudal, while

appearing before the trial court confirmed, that he was known to the accused-

appellant. He deposed that on 30.7.2009, he was summoned from his

residence by the Inspector of Police, Vridhachalam at about 4.30 p.m.

Thereupon, he had gone to the Vridhachalam Police Station. The Inspector of

Police had required Kasinathan (PW13) to be a police witness, whereupon, he

had obtained permission from the Tahsildar, for being a police witness. He

was taken to the house of the accused-appellant in a police jeep. They

reached his house at 7.00 a.m. on 30.7.3009. As soon as the accused saw

the police jeep, both of them fled from the spot. Whilst running away, the

accused-appellant had fallen down, and thereupon, the police personnel had

apprehended him. Women constables had apprehended Balayee (A-2). The

accused-appellant had made a confessional statement to the police in the

presence of Kasinathan (PW13). The accused-appellant had handed over

three mobile phones to the Police Inspector in his presence. Only two of the

said phones had sim cards. The accused-appellant had also produced the

motorcycle, on which he had taken away Suresh, when he had got down from

the school van at village Karkudal on 27.7.2009. The accused-appellant also

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produced a school bag containing a slate and two books from his residence in

his presence. Kasinathan (PW13) admitted having signed the “mahazar”

when recoveries of the aforesaid articles were made from the accused-

appellant on 30.7.2009. Based on the information furnished by the accused-

appellant, Kasinathan (PW13) acknowledged, that he had gone to the

Meerankulam tank in Vayalapadi village, in the police jeep, along with the

other police personnel. When the gunny bag containing the dead body of the

child was retrieved from the tank, the accused-appellant had identified the

same as Suresh. He had also signed on the “mahazar” prepared on the

recovery of the gunny bag, containing the dead body of Suresh.

17.It is not necessary to refer to the statement of other witnesses except

the fact that the call details produced by Sunil (PW11) indicate that two calls

were made from the Mobile Phone recovered from the accused-appellant to

Saraswathi (PW8). The said calls were made at 9.22 p.m. and 9.25 p.m.

respectively. The call details further indicate that from the same number, a

call was made to Maheshwari (PW1) at 9.39 p.m.

18.It is on the basis of the aforesaid oral and documentary evidence that

we shall endeavour to determine the issues canvassed at the hands of the

learned counsel for the appellant.

19.The solitary contention advanced by the learned counsel for the

appellant on the merits of the case was, that the prosecution had ventured to

substantiate the allegations levelled against the appellant only on the basis of

circumstantial evidence. It was sought to be pointed out, that in the absence

of direct evidence, the slightest of a discrepancy, depicting the possibility of

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two views would exculpate the accused of guilt, on the basis of benefit of

doubt. Before dealing with the circumstantial evidence relied upon against the

appellant, learned counsel invited our attention to the legal position declared

by this Court, on the standard of proof required for recording a conviction, on

the basis of circumstantial evidence. In this behalf, learned counsel for the

appellant first of all placed reliance on Sharad Birdhichand Sarda Vs. State of

Maharashtra, (1984) 4 SCC 116. It was pointed out, that in the instant

judgment this Court laid down the golden principles of standard of proof,

required in a case sought to be established on the basis of circumstantial

evidence. In this behalf reliance was placed on the following observations:-

“152. A close analysis of this decision would show that the following

conditions must be fulfilled before a case against an accused can

be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be

drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned 'must or should' and not 'may be'

established. There is not only a grammatical but a legal

distinction between 'may be proved' and 'must be or should

be proved as was held by this Court in Shivaji Sahebrao

Bobade v. State of Maharashtra : 1973CriLJ1783 where the

following observations were made:

Certainly, it is a primary principle that the accused must be

and not merely may be guilty before a Court can convict,

and the mental distance between 'may be' and 'must be' is

long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except

that the accused is guilty.

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(3) the circumstances should be of a conclusive nature and

tendency.

(4) they should exclude every possible hypothesis except the

one to be proved, and

(5) there must be 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 show that in all

human probability the act must have been done by the

accused.

153.These five golden principles, if we may say so, constitute the

panchsheel of the proof of a case based on circumstantial

evidence.”

Learned counsel for the appellant thereafter placed reliance on the decision

rendered in Tanviben Pankajkumar Divetia Vs. State of Gujarat, (1997) 7 SCC

156. He placed reliance on the following observations recorded therein:-

“45. The principle for basing a conviction on the basis of circumstantial

evidences has been indicated in a number of decisions of this

Court and the law is well settled that each and every incriminating

circumstance must be clearly established by reliable and clinching

evidence and the circumstances so proved must form a chain of

events from which the only irresistible conclusion about the guilt of

the accused can be safely drawn and no other hypothesis against

the guilt is possible. This Court has clearly sounded a note of

caution that in a case depending largely upon circumstantial

evidence, there is always a danger that conjecture or suspicion

may take the place of legal proof. The Court must satisfy itself that

various circumstances in the chain of events have been

established clearly and such completed chain of events must be

such as to rule out a reasonable likelihood of the innocence of the

accused. It has also been indicated that when the important link

goes, the chain of circumstances gets snapped and the other

circumstances cannot in any manner, establish the guilt of the

accused beyond all reasonable doubts. It has been held that the

Court has to be watchful and avoid the danger of allowing the

suspicion to make the place of legal proof for some times,

unconsciously it may happen to be a short step between moral

certainty and legal proof. It has been indicated by this Court that

there is a long mental distance between 'may be true' and 'must

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be true' and the same divides conjectures from sure conclusions.

(Jaharlal Das v. State of Orissa : 1991 3 SCC 27)

46. We may indicate here that more the suspicious circumstances,

more care and caution are required to be taken otherwise the

suspicious circumstances may unwittingly enter the adjudicating

thought process of the Court even though the suspicious

circumstances had not been clearly established by clinching and

reliable evidences. It appears to us that in this case, the decision

of the Court in convicting the appellant has been the result of the

suspicious circumstances entering the adjudicating thought

process of the Court.”

Learned counsel also placed reliance on Sucha Singh Vs. State of Punjab,

(2001) 4 SCC 375. The instant judgment was relied upon in order to support

the contention, that circumstantial evidence could not be relied upon, where

there was any vacuum in evidence. It was pointed out therefrom, that this

Court has held, that each aspect of the criminal act alleged against the

accused, had to be established on the basis of material of a nature, which

would be sufficient to lead to the inference that there could be no other view

possible, than the one arrived at on the basis of the said circumstantial

evidence. In this behalf, learned counsel for the appellant placed reliance on

the following observations recorded in the afore-cited judgment.

“19. Learned senior counsel contended that Section 106 of the

Evidence Act is not intended for the purpose of filling up the

vacuum in prosecution evidence. He invited our attention to the

observations made by the Privy Council in Attygalle Vs. R AIR

1936 PC 169, and also in Stephen Seneviratne vs. The King : AIR

1936 PC 289. In fact the observations contained therein were

considered by this Court in an early decision authored by Vivian

Bose, J, in Shambhu Nath Mehra vs State of Ajmer, AIR 1956 SC

404. The statement of law made by the learned Judge in the

aforesaid decision has been extracted by us in State of West

Bengal vs. Mir Mohammad Omar, 2000 (8) SCC 382. It is useful

to extract a further portion of the observation made by us in the

aforesaid decision:

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"33.Presumption of fact is an inference as to the

existence of one fact from the existence of some other facts,

unless the truth of such inference is disproved. Presumption

of fact is a rule in law of evidence that a fact otherwise

doubtful may be inferred from certain other proved facts.

When inferring the existence of a fact from other set of

proved facts, the court exercises a process of reasoning and

reaches a logical conclusion as the most probable position.

The above principle has gained legislative recognition in India

when Section 114 is incorporated in the Evidence Act. It

empowers the court to presume the existence of any fact

which it thinks likely to have happened. In that process the

court shall have regard to the common course of natural

events, human conduct etc. in relation to the facts of the

case."

20. We pointed out that Section 106 of the Evidence Act is not

intended to relieve the prosecution of its burden to prove the guilt

of the accused beyond reasonable doubt, but the section would

apply to cases where prosecution has succeeded in proving facts

for which a reasonable inference can be drawn regarding the

existence of certain other facts, unless the accused by virtue of

special knowledge regarding such facts failed to offer any

explanation which might drive the court to draw a different

inference.”

20.Based on the aforesaid judgments, the first contention advanced on

behalf of the accused-appellant was, that there was no material produced by

the prosecution to establish the factum of the commission of the murder of the

deceased Suresh (at the hands of the accused-appellant). According to the

learned counsel, the aforesaid vacuum could not be filled up on the basis of

any presumption.

21.We have considered the first contention advanced by the learned

counsel for the appellant, on the basis of the contention noticed in the

foregoing paragraph. In the veiled submission advanced in the hands of the

learned counsel for the appellant, we find an implied acknowledgement,

namely, that learned counsel acknowledges, that the prosecution had placed

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sufficient material on the record of the case to substantiate the factum of

kidnapping of the deceased Suresh, at the hands of the accused-appellant.

Be there as it may, without drawing any such inference, we would still

endeavour to determine, whether the prosecution had been successful in

establishing the factum of kidnapping of the deceased Suresh, at the hands of

the accused-appellant. In so far as the instant aspect of the matter is

concerned, reference may first be made to the statement of Saraswathi, PW-8

wherein she affirmed that on 27.7.2009, at about 9 p.m., when she was at her

residence, she had received a call on her mobile phone bearing number

9943020435. The caller identified himself as Shankar. She deposed, that the

caller had inquired from her about the phone number of Maheshwari (PW1).

She stated, that she had responded to the said Shankar by asking him to call

her after sometime, and in the meanwhile, she (Saraswathi) would gather the

phone number of Maheshwari (PW1). Soon after the first call, Saraswathi

(PW8) testified, that she received a second call from the same person. On

this occasion, Saraswathi (PW-8) acknowledged having provided the caller

with the mobile phone number of Maheshwari (PW1). Through independent

evidence the prosecution was in a position to establish that the first of the

aforesaid two calls, were received by Saraswathi (PW8) at 9.22 p.m., and the

second one at 9.25 p.m. The caller, on having obtained the mobile phone

number of Maheshwari (PW1) then called her (Maheshwari – PW1) on the

mobile phone number supplied by Saraswathi (PW8). On the basis of

independent evidence the prosecution has also been able to establish, that

Maheshwari, (PW1) received the instant phone call at 9.39 p.m., from the

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same phone number from which Saraswathi, PW-8 had received two calls. In

her statement, Maheshwari (PW1) asserted, that the caller demanded a

ransom of Rs.5,00,000/- for the safe return of her son, Suresh. At this

juncture, as per her statement, Maheshwari (PW1) again visited the police

station to apprise the police of the said development. The aforesaid material,

was one of the leads, which the police had adopted in identifying the accused-

appellant.

22.Beside the aforesaid, the prosecution placed reliance on the deposition

of Kamali (PW2), for identifying the appellant as the kidnapper of the

deceased, Suresh. In her statement Kamali (PW-2) affirmed, that she along

with the deceased Suresh had returned to their village Karkudal on 27.7.2009

at about 4.30 p.m. in the school van. When they alighted from the school van,

as per the deposition of Kamali (PW2), the accused-appellant was seen by

her, standing besides his motor-cycle. The accused-appellant, as per the

testimony of Kamali (PW2), had gestured towards Suresh with his hand. The

deceased Suresh and Kamali (PW2) had accordingly gone to the accused-

appellant. The accused-appellant had told Suresh, that his mother and

grandmother were unwell, and he had been asked by his mother to bring him

(Suresh) to the hospital. Thereafter, according to Kamali (PW2), the accused-

appellant had taken away the deceased Suresh, on his motor-cycle. It would

be relevant to indicate that Kamali (PW2) duly identified the accused-appellant

in an identification parade, conducted under the supervision of A. Bashir,

Judicial Magistrate (PW10), on 25.8.2009 at Cuddalore Central Prison.

According to the testimony of A. Bashir, Judicial Magistrate, Kamali PW-2

Page 19 19

correctly identified the accused-appellant. The aforesaid evidence was the

second basis of identifying the accused-appellant as the person, who had

kidnapped the deceased Suresh.

23.The deposition of Kurinji Selvan (PW3) has already been narrated

hereinabove. Kurinji Selvan (PW3) had seen Suresh disembarking from the

school van on 27.7.2009 at about 4.30 p.m., when the said van had returned

to village Karkudal. Kurinji Selvan (PW3) affirmed, that he had also seen the

accused-appellant waiting for the arrival of the school van under a neem tree

alongside his motorcycle. Kurinji Selvan (PW3) also deposed, that he had

seen the accused-appellant taking away Suresh, on his motorcycle. On the

date of the incident itself, he had informed Maheshwari (PW1), that Suresh

had been taken away by a man on his motorcycle. In the same manner as

Kamali (PW2) had identified the accused-appellant in an identification parade,

Kurinji Selvan (PW3) had also participated in the identification parade

conducted at Cuddalore Central Prison on 25.8.2009. He had also identified

the accused-appellant in the presence of the Judicial Magistrate. The

statement of Kurinji Selvan (PW3) constitutes the third basis of identifying the

accused-appellant as the man who had taken away Suresh on his motorcycle

on 27.7.2009.

24.Based on the evidence noticed in the three preceding paragraphs, there

can be no doubt whatsoever, that the accused-appellant had been identified

through cogent evidence as the person who had taken away Suresh when he

disembarked from school van on 27.7.2009. The factum of kidnapping of

Suresh by the accused-appellant, therefore, stands duly established.

Page 20 20

25.The material question to be determined is, whether the aforesaid

circumstantial evidence is sufficient to further infer, that the accused-appellant

had committed the murder of Suresh. According to the learned counsel for

the appellant, there is no evidence whatsoever, on the record of the case,

showing the participation of the accused-appellant in any of the acts which led

to the death of Suresh. It was, therefore, the submission of the learned

counsel for the appellant, that even though the accused-appellant may be held

guilty of having kidnapped Suresh, since it had not been established that he

had committed the murder of Suresh, he cannot be held guilty of murder in the

facts of this case.

26.Having given our thoughtful consideration to the submission advanced

at the hands of the learned counsel for the appellant, we are of the view, that

the instant submission is wholly misplaced and fallacious. Insofar as the

instant aspect of the matter is concerned, reference may be made to the

judgment rendered by this Court in Sucha Singh’s case (supra), wherein it

was held as under:-

“21.We are mindful of what is frequently happening during these

days. Persons are kidnapped in the sight of others and are

forcibly taken out of the sight of all others and later the kidnapped

are killed. If a legal principle is to be laid down that for the murder

of such kidnapped there should necessarily be independent

evidence apart from the circumstances enumerated above, we

would be providing a safe jurisprudence for protecting such

criminal activities. India cannot now afford to lay down any such

legal principle insulating the marauders of their activities of killing

kidnapped innocents outside the ken of others.”

A perusal of the aforesaid determination would reveal, that having proved the

factum of kidnapping, the inference of the consequential murder of the

Page 21 21

kidnapped person, is liable to be presumed. We are one with the aforesaid

conclusion. The logic for the aforesaid inference is simple. Once the person

concerned has been shown as having been kidnapped, the onus would shift

on the kidnapper to establish how and when the kidnapped individual came to

be released from his custody. In the absence of any such proof produced by

the kidnapper, it would be natural to infer/presume, that the kidnapped person

continued in the kidnapper’s custody, till he was eliminated. The instant

conclusion would also emerge from Section 106 of the Indian Evidence Act,

1872 which is being extracted hereunder :

“106 - Burden of proving fact especially within knowledge—.When

any fact is especially within the knowledge of any person, the burden of

proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that

which the character and circumstances of the act suggest, the burden of

proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden

of proving that he had a ticket is on him.”

27.Since in the facts and circumstances of this case, it has been duly

established, that Suresh had been kidnapped by the accused-appellant; the

accused-appellant has not been able to produce any material on the record of

this case to show the release of Suresh from his custody. Section 106 of the

Indian Evidence Act, 1872 places the onus on him. In the absence of any

such material produced by the accused-appellant, it has to be accepted, that

the custody of Suresh had remained with the accused-appellant, till he was

murdered. The motive/reason for the accused-appellant, for taking the

extreme step was, that ransom as demanded by him, had not been paid. We

Page 22 22

are therefore, satisfied, that in the facts and circumstances of the present

case, there is sufficient evidence on the record of this case, on the basis

whereof even the factum of murder of Suresh at the hands of the accused-

appellant stands established.

28.We may now refer to some further material on the record of the case, to

substantiate our aforesaid conclusion. In this behalf, it would be relevant to

mention, that when the accused-appellant was detained on 30.7.2009, he had

made a confessional statement in the presence of Kasinathan (PW13) stating,

that he had strangulated Suresh to death, whereupon his body was put into a

gunny bag and thrown into the Meerankulam tank. It was thereafter, on the

pointing out of the accused-appellant, that the body of Suresh was recovered

from the Meerankulam tank. It was found in a gunny bag, as stated by the

accused-appellant. Dr. Kathirvel (PW12) concluded after holding the post

mortem examination of the dead body of Suresh, that Suresh had died on

account of suffocation, prior to his having been drowned. The instant

evidence clearly nails the accused-appellant as the perpetrator of the murder

of Suresh. Moreover, the statement of Kasinathan (PW13) further reveals that

the school bag, books and slate of Suresh were recovered from the residence

of the accused-appellant. These articles were confirmed by Maheshwari

(PW1) as belonging to Suresh. In view of the factual and legal position dealt

with hereinabove, we have no doubt in our mind, that the prosecution had

produced sufficient material to establish not only the kidnapping of Suresh, but

also his murder at the hands of the accused-appellant.

Page 23 23

29.Besides the submission advanced on the merits of the controversy,

learned counsel for the accused-appellant also assailed the confirmation by

the High Court of the death sentence imposed by the trial court. During the

course of hearing, it was the vehement contention of the learned counsel for

the accused-appellant, that infliction of life imprisonment, in the facts and

circumstances of this case, would have satisfied the ends of justice. It was

also the contention of the learned counsel for the accused-appellant, that the

facts and circumstances of this case are not sufficient to categorize the

present case as a ‘rarest of a rare case’, wherein only the death penalty would

meet the ends of justice. In order to support the aforesaid contention, learned

counsel for the accused-appellant, in the first instance, placed reliance on a

recent judgment rendered by this Court in Haresh Mohandas Rajput Vs. State

of Maharashtra, (2011) 12 SCC 56, wherein, having taken into consideration

earlier judgments, this Court delineated the circumstances in which the death

penalty could be imposed. Reliance was placed on the following observations

recorded therein:-

“Death Sentence – When Warranted:

“18. The guidelines laid down in Bachan Singh v. State of Punjab,

(1980) 2 SCC 684, may be culled out as under:

(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

alongwith the circumstances of the ‘crime’.

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

exception. In other words, death sentence must be

Page 24 24

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 just balance has to be struck between the

aggravating and the mitigating circumstances before the

option is exercised.

19. In Machhi Singh and Ors. v. State of Punjab, (1983) 2 SCC 684,

this Court expanded the "rarest of rare" formulation beyond the

aggravating factors listed in Bachan Singh to cases where the

"collective conscience" of a community is so shocked that it will

expect the holders of the judicial powers centre to inflict death

penalty irrespective of their personal opinion as regards

desirability or otherwise of retaining death penalty, such a penalty

can be inflicted. But the Bench in this case underlined that full

weightage must be accorded to the mitigating circumstances in a

case and a just balance had to be struck between aggravating

and mitigating circumstances.

20. "The rarest of the rare case" comes when a convict would be a

menace and threat to the harmonious and peaceful co-existence

of the society. The crime may be heinous or brutal but may not be

in the category of "the rarest of the rare case". There must be no

reason to believe that the accused cannot be reformed or

rehabilitated and that he is likely to continue criminal acts of

violence as would constitute a continuing threat to the society.

The accused may be a menace to the society and would continue

to be so, threatening its peaceful and harmonious co-existence.

The manner in which the crime is committed must be such that it

may result in intense and extreme indignation of the community

and shock the collective conscience of the society. Where an

accused does not act on any spur-of-the-moment provocation

and indulges himself in a deliberately planned crime and

meticulously executes it, the death sentence may be the most

appropriate punishment for such a ghastly crime. The death

sentence may be warranted where the victims are innocent

children and helpless women. Thus, in case the crime is

committed in a most cruel and inhuman manner which is an

extremely brutal, grotesque, diabolical, revolting and dastardly

Page 25 25

manner, where his act affects the entire moral fiber of the society,

e.g. crime committed for power or political ambition or indulging in

organized criminal activities, death sentence should be awarded.

(See: C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010

SC 3718; Rabindra Kumar Pal alias Dara Singh v. Republic of

India, (2011) 2 SCC 490; Surendra Koli v. State of U.P. and Ors.,

(2011) 4 SCC 80; Mohd. Mannan (supra); and Sudam v. State of

Maharashtra, (2011) 7 SCC 125).

21. Thus, it is evident that for awarding the death sentence, there

must be existence of aggravating circumstances and the

consequential absence of mitigating circumstances. As to

whether death sentence should be awarded, would depend upon

the factual scenario of the case in hand.”

Reliance was also placed, on the decision of this Court in Ramnaresh & Ors.

Vs. State of Chhattisgarh, (2012) 4 SCC 257. Insofar as the instant judgment

is concerned, learned counsel relied on the following observations:-

“The death sentence and principles governing its conversion to life

imprisonment

56. Despite the transformation of approach and radical changes in

principles of sentencing across the world, it has not been possible

to put to rest the conflicting views on sentencing policy. The

sentencing policy being a significant and inseparable facet of

criminal jurisprudence, has been inviting the attention of the

Courts for providing certainty and greater clarity to it.

57.Capital punishment has been a subject matter of great social and

judicial discussion and catechism. From whatever point of view it

is examined, one undisputable statement of law follows that it is

neither possible nor prudent to state any universal formula which

would be applicable to all the cases of criminology where capital

punishment has been prescribed. It shall always depend upon the

facts and circumstances of a given case. This Court has stated

various legal principles which would be precepts on exercise of

judicial discretion in cases where the issue is whether the capital

punishment should or should not be awarded.

58. The law requires the Court to record special reasons for awarding

such sentence. The Court, therefore, has to consider matters like

nature of the offence, how and under what circumstances it was

committed, the extent of brutality with which the offence was

Page 26 26

committed, the motive for the offence, any provocative or

aggravating circumstances at the time of commission of the

crime, the possibility of the convict being reformed or

rehabilitated, adequacy of the sentence of life imprisonment and

other attendant circumstances. These factors cannot be similar or

identical in any two given cases.

59.Thus, it is imperative for the Court to examine each case on its

own facts, in light of the enunciated principles. It is only upon

application of these principles to the facts of a given case that the

Court can arrive at a 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. Further, the Court would

also keep in mind that if such a punishment alone would serve

the purpose of the judgment, in its being sufficiently punitive and

purposefully preventive.

xxx xxx xxx xxx

72. The above judgments provide us with the dicta of the Court

relating to imposition of death penalty. Merely because a crime is

heinous per se may not be a sufficient reason for the imposition

of death penalty without reference to the other factors and

attendant circumstances.

73. Most of the heinous crimes under the IPC are punishable by

death penalty or life imprisonment. That by itself does not suggest

that in all such offences, penalty of death alone should be

awarded. We must notice, even at the cost of repetition, that in

such cases awarding of life imprisonment would be a rule, while

'death' would be the exception. The term 'rarest of rare' case

which is the consistent determinative rule declared by this Court,

itself suggests that it has to be an exceptional case.

74.The life of a particular individual cannot be taken away except

according to the procedure established by law and that is the

constitutional mandate. The law contemplates recording of

special reasons and, therefore, the expression 'special' has to be

given a definite meaning and connotation. 'Special reasons' in

contra-distinction to 'reasons' simpliciter conveys the legislative

mandate of putting a restriction on exercise of judicial discretion

by placing the requirement of special reasons.

75. Since, the later judgments of this Court have added to the

principles stated by this Court in the case of Bachan Singh

(supra) and Machhi Singh (supra), it will be useful to restate the

Page 27 27

stated principles while also bringing them in consonance, with the

recent judgments.

76. The law enunciated by this Court in its recent judgments, as

already noticed, adds and elaborates the principles that were

stated in the case of Bachan Singh (supra) and thereafter, in the

case of Machhi Singh (supra). The aforesaid judgments, primarily

dissect these principles into two different compartments - one

being the 'aggravating circumstances' while the other being the

'mitigating circumstances'. The Court would consider the

cumulative effect of both these aspects and normally, it may not

be very appropriate for the Court to decide the most significant

aspect of sentencing policy with reference to one of the classes

under any of the following heads while completely ignoring other

classes under other heads. To balance the two is the primary

duty of the Court. It will be appropriate for the Court to come to a

final conclusion upon balancing the exercise that would help to

administer the criminal justice system better and provide an

effective and meaningful reasoning by the Court as contemplated

under Section 354(3) Cr.P.C.

Aggravating Circumstances:

(1) The offences relating to the commission of heinous crimes

like murder, rape, armed dacoity, kidnapping etc. by the

accused with a prior record of conviction for capital felony

or offences committed by the person having a substantial

history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was

engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a

fear psychosis in the public at large and was committed in a

public place by a weapon or device which clearly could be

hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like

offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only

while involving inhumane treatment and torture to the

victim.

(7) The offence was committed by a person while in lawful

custody.

Page 28 28

(8) The murder or the offence was committed to prevent a

person lawfully carrying out his duty like arrest or custody in

a place of lawful confinement of himself or another. For

instance, murder is of a person who had acted in lawful

discharge of his duty under Section 43 Cr.P.C.

(9) When the crime is enormous in proportion like making an

attempt of murder of the entire family or members of a

particular community.

(10) When the victim is innocent, helpless or a person relies

upon the trust of relationship and social norms, like a child,

helpless woman, a daughter or a niece staying with a

father/uncle and is inflicted with the crime by such a trusted

person.

(11) When murder is committed for a motive which evidences

total depravity and meanness.

(12) When there is a cold blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks

not only the judicial conscience but even the conscience of

the society.

Mitigating Circumstances:

(1) The manner and circumstances in and under which the

offence was committed, for example, extreme mental or

emotional disturbance or extreme provocation in

contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not

a determinative factor by itself.

(3) The chances of the accused of not indulging in commission

of the crime again and the probability of the accused being

reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally

defective and the defect impaired his capacity to appreciate

the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would

render such a behaviour possible and could have the effect

of giving rise to mental imbalance in that given situation like

persistent harassment or, in fact, leading to such a peak of

human behaviour that, in the facts and circumstances of

Page 29 29

the case, the accused believed that he was morally justified

in committing the offence.

(6) Where the Court upon proper appreciation of evidence is of

the view that the crime was not committed in a preordained

manner and that the death resulted in the course of

commission of another crime and that there was a

possibility of it being construed as consequences to the

commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of

a sole eye-witness though prosecution has brought home

the guilt of the accused.

77. While determining the questions relateable to sentencing policy,

the Court has to follow certain principles and those principles are

the loadstar besides the above considerations in imposition or

otherwise of the death sentence.

Principles:

(1) The Court has to apply the test to determine, if it was the

'rarest of rare' case for imposition of a death sentence.

(2) In the opinion of the Court, imposition of any other

punishment, i.e., life imprisonment would be completely

inadequate and would not meet the ends of justice.

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

exception.

(4) The option to impose sentence of imprisonment for life

cannot be cautiously exercised having regard to the nature

and circumstances of the crime and all relevant

considerations.

(5) The method (planned or otherwise) and the manner (extent

of brutality and inhumanity, etc.) in which the crime was

committed and the circumstances leading to commission of

such heinous crime.

78. Stated broadly, these are the accepted indicators for the exercise

of judicial discretion but it is always preferred not to fetter the

judicial discretion by attempting to make the excessive

enumeration, in one way or another. In other words, these are the

considerations which may collectively or otherwise weigh in the

mind of the Court, while exercising its jurisdiction. It is difficult to

state it as an absolute rule. Every case has to be decided on its

Page 30 30

own merits. The judicial pronouncements, can only state the

precepts that may govern the exercise of judicial discretion to a

limited extent. Justice may be done on the facts of each case.

These are the factors which the Court may consider in its

endeavour to do complete justice between the parties.

79. The Court then would draw a balance-sheet of aggravating and

mitigating circumstances. Both aspects have to be given their

respective weightage. The Court has to strike a balance between

the two and see towards which side the scale/balance of justice

tilts. The principle of proportion between the crime and the

punishment is the principle of 'just deserts' that serves as the

foundation of every criminal sentence that is justifiable. In other

words, the 'doctrine of proportionality' has a valuable application

to the sentencing policy under the Indian criminal jurisprudence.

Thus, the court will not only have to examine what is just but also

as to what the accused deserves keeping in view the impact on

the society at large.

80. Every punishment imposed is bound to have its effect not only on

the accused alone, but also on the society as a whole. Thus, the

Courts should consider retributive and deterrent aspect of

punishment while imposing the extreme punishment of death.

81. Wherever, the offence which is committed, manner in which it is

committed, its attendant circumstances and the motive and status

of the victim, undoubtedly brings the case within the ambit of

'rarest of rare' cases and the Court finds that the imposition of life

imprisonment would be inflicting of inadequate punishment, the

Court may award death penalty. Wherever, the case falls in any

of the exceptions to the 'rarest of rare' cases, the Court may

exercise its judicial discretion while imposing life imprisonment in

place of death sentence.”

Last of all, reliance was placed on the judgment rendered by this Court in

Brajendra Singh Vs. State of Madhya Pradesh, (2012) 4 SCC 289, wherein,

this Court having followed the decision rendered in Ramnaresh & Ors. Vs.

State of Chhattisgarh (cited supra), further held as under:-

“38. First and the foremost, this Court has not only to examine

whether the instant case falls under the category of 'rarest of rare'

cases but also whether any other sentence, except death penalty,

Page 31 31

would be inadequate in the facts and circumstances of the

present case.

39. We have already held the Appellant guilty of an offence under

Section 302, Indian Penal Code for committing the murder of his

three children and the wife. All this happened in the spur of

moment, but, of course, the incident must have continued for a

while, during which period the deceased Aradhna received burn

injuries as well as the fatal injury on the throat. All the three

children received injuries with a knife similar to that of the

deceased Aradhna. But one circumstance which cannot be

ignored by this Court is that the prosecution witnesses have

clearly stated that there was a rift between the couple on account

of her talking to Liladhar Tiwari, the neighbour, PW10. Even if

some credence is given to the statement made by the accused

under Section 313 Cr.P.C. wherein he stated that he had seen

the deceased and PW10 in a compromising position in the house

of PW10, it also supports the allegation of the prosecution that

there was rift between the husband and wife on account of PW10.

It is also clearly exhibited in the FIR (P-27) that the accused had

forbidden his wife from talking to PW10, which despite such

warning she persisted with and, therefore, he had committed the

murder of her wife along with the children.”

30.We are one with the learned counsel for the accused-appellant, on the

parameters prescribed by this Court, for inflicting the death sentence. Rather

than deliberating upon the matter in any further detail, we would venture to

apply the parameters laid down in the judgments relied upon by the learned

counsel for the accused-appellant, to determine whether or not life

imprisonment or in the alternative the death penalty, would be justified in the

facts and circumstances of the present case. We may first refer to the

aggravating circumstances as under:-

(i)The accused-appellant has been found guilty of the offence under

Section 364A of the Indian Penal Code. Section 364A is being

extracted hereunder:-

Page 32 32

“364A.Kidnapping for ransom, etc.—Whoever kidnaps or

abducts any person or keeps a person in detention

after such kidnapping or abduction and threatens to

cause death or hurt to such person, or by his

conduct gives rise to a reasonable apprehension

that such person may be put to death or hurt, or

causes hurt or death to such person in order to

compel the Government or any foreign State or

international inter-governmental organization or any

other person to do or abstain from doing any act or

to pay a ransom, shall be punishable with death, or

imprisonment for life, and shall also be liable to

fine.”

A perusal of the aforesaid provision leaves no room for any

doubt, that the offence of kidnapping for ransom accompanied by

a threat to cause death contemplates punishment with death.

Therefore, even without an accused actually having committed

the murder of the individual kidnapped for ransom, the provision

contemplates the death penalty. Insofar as the present case is

concerned, there is no doubt, that the accused-appellant has

been found to have kidnapped Suresh for ransom, and has also

actually committed his murder. In the instant situation therefore,

the guilt of the accused-appellant (under Section 364A of the

Indian Penal Code) must be considered to be of the gravest

nature, justifying the harshest punishment prescribed for the

offence.

(ii)The accused-appellant has also been found guilty of the offence

of murder under Section 302 of the Indian Penal Code. Section

302 of the Indian Penal Code also contemplates the punishment

Page 33 33

of death for the offence of murder. It is, therefore apparent, that

the accused-appellant is guilty of two heinous offences, which

independently of one another, provide for the death penalty.

(iii)The accused caused the murder of child of 7 years. The facts

and circumstances of the case do not depict any previous enmity

between the parties. There is no grave and sudden provocation,

which had compelled the accused to take the life of an innocent

child. The murder of a child, in such circumstances makes this a

case of extreme culpability.

(iv)Kidnapping of a child was committed with the motive of carrying

home a ransom. On account of the non-payment of ransom, a

minor child’s murder was committed. This fact demonstrates that

the accused had no value for human life. The instant

circumstance demonstrates extreme mental perversion not

worthy of human condonation.

(v)The manner in which the child was murdered, and the approach

and method adopted by the accused, disclose the traits of

outrageous criminality in the behaviour of the accused. The child

was first strangulated to death, the dead body of the child was

then tied in a gunny bag, and finally the gunny bag was thrown

into a water tank. All this was done, in a well thought out and

planned manner. This approach of the accused reveals a brutal

mindset of the highest order.

Page 34 34

(vi)All the aforesaid aggravating circumstances are liable to be

considered in the background of the fact, that the child was

known to the accused-appellant. In the examination of the

accused under Section 313 of the Code of Criminal Procedure,

the accused acknowledged, that he used to see the child

whenever the child was taken by his mother to her native village.

Additionally, it is acknowledged in the pleadings, that the accused

had developed an acquaintance with the child, when his mother

used to visit her native place along with her son. Murder was

therefore committed, not of a stranger, but of a child with whom

the accused was acquainted. This conduct of the accused-

appellant, places the facts of this case in the abnormal and

heinous category.

(vii)The choice of kidnapping the particular child for ransom, was well

planned and consciously motivated. The parents of the deceased

had four children – three daughters and one son. Kidnapping the

only male child was to induce maximum fear in the mind of his

parents. Purposefully killing the sole male child, has grave

repercussions for the parents of the deceased. Agony for parents

for the loss of their only male child, who would have carried

further the family lineage, and is expected to see them through

their old age, is unfathomable. Extreme misery caused to the

aggrieved party, certainly adds to the aggravating circumstances.

Page 35 35

31.As against the aforesaid aggravating circumstances, learned counsel

for the accused-appellant could not point to us even a single mitigating

circumstance. Thus viewed, even on the parameters laid down by this Court,

in the decisions relied upon by the learned counsel for the accused-appellant,

we have no choice, but to affirm the death penalty imposed upon the accused-

appellant by the High Court. In fact, we have to record the aforesaid

conclusion in view of the judgment rendered by this Court in Vikram Singh &

Ors. Vs. State of Punjab, (2010) 3 SCC 56, wherein in the like circumstances

(certainly, the circumstances herein are much graver than the ones in the said

case), this Court had upheld the death penalty awarded by the High Court.

32.In view of the above, we find no justification whatsoever, in interfering

with the impugned order of the High Court, either on merits or on the quantum

of punishment.

33.Dismissed.

…………………………… .J.

(P. Sathasivam)

…………………………….J.

(Jagdish Singh Khehar)

New Delhi;

February 5, 2013.