Reserved/Court No.46

Case :- CAPITAL CASES No. - 5599 of 2011

Appellant :- Vijay Bahadur Gaur

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Sunil Vashisth Amicus Curiae

Counsel for Respondent :- Govt. Advocate

Hon'ble Amar Saran,J.

Hon'ble Mrs. Sunita Agarwal,J.

(Delivered by Hon'ble Amar Saran, J.)

This Capital appeal arises from the judgement of the

additional Sessions Judge, Mirzapur, dated 23.7.2011

convicting and sentencing the appellant to death under

section 302 I.P.C. and to imprisonment for life together with a

fine of Rs.25,000/- under section 376 (2) (f) I.P.C. In default

of payment of fine, the appellant is to undergo 20 months

additional rigorous imprisonment. He is also sentenced to

imprisonment for 5 years and a fine of Rs.5,000/- under

section 201 I.P.C. In default of payment of fine under this

provision, the appellant is to undergo 5 months additional

rigorous imprisonment.

We have heard Sri Sunil Vashisth, learned Amicus Curiae for

the appellant and Sri Akhilesh Singh, learned Government

Advocate assisted by Sri Anand Tiwari and Sri R.K. Singh,

learned Additional Government Advocates.

Briefly, the prosecution case was that on 29.12.2009 at about

10.30 a.m., the 5 years old deceased Priyanka had gone along

with her brother Sheru aged 7 years to the house of her

neighbour, the appellant Vijai Bahadur, who had plucked some

guavas from a tree at his door step and given them to the two

children. He had asked Sheru, P.W. 2 to go home and had told

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him that he would be taking Priyanka to her bua's place.

Sheru had returned home. After these facts were revealed by

Sheru in the evening when he was questioned regarding the

whereabouts of his sister, Sheru, and Priyanka's father Ram

Moorat, P.W. 3 had made a mobile call to his sister at Lorika

making inquiries about the whereabouts of Priyanka. He was

informed that neither Priyanka nor Vijai Bahadur had come to

her place. Then Ram Moorat and his other family members

kept searching for Priyanka and Vijai Bahadur. On 3.1.2010

they learnt that Vijai Bahadur has come to his house, but

Priyanka was not with him. Then at about 7 a.m. the

informant Chhavinath Gond, P.W.1, grand uncle of Priyanka

and Sheru accompanied by his son Ram Moorat, and Shyama

Charan and Rambachan Gond went to the house of Vijai

Bahadur. Vijai Bahadur was at his baithak (sitting room). They

inquired about Priyanka, but he denied having any knowledge

about her whereabouts till 11 a.m. However when these

persons acted a little strictly with Vijai Bahadur and told him

that they intended to take him to the police station Chunar,

then he fell on their legs and apologised for his mistake. He

said that he should be hanged because he had tried to

commit rape on Priyanka in the Arhar, (pigeon pea) field of

Om Prakash Vakil. Priyanka had started running. Then fearing

that she would disclose this matter at home he had

strangulated her neck with a belt resulting in her death. Then,

he left for his aunt (Mausi's) place. He had come home on

that day for collecting his clothes for going to Mumbai, when

he was apprehended. He agreed to take the witnesses to

show them the place, where he had strangulated the girl and

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her dead body was lying. The witnesses had accompanied the

appellant to Om Prakash's Arhar field. There Vijai Bahadur

showed the naked corpse of Priyanka to the witnesses. Her

clothes were lying on her body and her neck was strangulated

with a belt. On reaching the dead body Vijai Bahadur started

weeping remorsefully saying that he had committed a great

sin by murdering the innocent girl child. The witnesses should

forgive him. Vijai Bahadur was then taken to the police

station, where a report of this incident was lodged on

3.1.2010 at 12.50 p.m. by P.W. 1 Chhavinath (Ext. Ka-1).

P.W. 6 Head Moharrir Lalta Prasad Yadav, P.S. Kotwali, Chunar

prepared the check F.I.R. (Ext. Ka-15) on the basis of the

report, which was submitted by Chhavinath and also made

necessary G.D. entries on the directions of the S.H.O., P.S.

Chunar, D.P. Shukla. P.W. 5 D.P. Shukla immediately started

investigation of the case and recorded the statement of the

informant at the police station itself. As the accused Vijai

Bahadur had been brought to the Police Station by the

informant, he was immediately taken into custody. Then the

Investigating Officer along with the informant and other police

personnel reached the place of incident, which was shown to

him by the informant and other witnesses and recovered the

corpse of Km. Priyanka from a field in village Dhuniya Mazara,

Rampur, Sakteshgarh. The dead body was naked except that

a half pant, full sleeve shirt and one sweater, were lying over

the corpse. The neck of the corpse had been strangled with a

nylon patti (belt), which had a double knot at the back. The

I.O. opened the same and took the “patti” and other clothes

of the deceased in possession. He prepared the recovery

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memo in the presence of Ram Moorat and Ram Bahadur etc.

After dictating the recovery memo (Ext. Ka 3) to S.S.I. R.P.

Dubey, inquest (Ext. Ka-2) was conducted by S.S.I. R.P.

Dubey on his direction. The I.O. also made a site plan on the

pointing out of the informant (Ext. Ka-13). He recorded the

statement of the accused and other witnesses in the case

diary.

Post mortem was conducted on the dead body of Km.

Priyanka by P.W. 4 Dr. N.K. Srivastava on 03.01.2010 at 4.30

p.m. The age of the deceased was 5 years and the time of

death about 4 to 7 days earlier. The rigor mortis had

disappeared and the body had decomposed. There was

greenish discolouration on the abdomen. The dead body

revealed the following external injuries:-

(1) Abrasion 3 cm x 2 cm on the left side forehead just

lateral to mid line.

(2) Abrasion 3 cm x 2 cm on the right cheek bone.

(3) Abrasion 3 cm x 2 cm on the middle of left cheek.

(4) Abrasion 2 cm x on the middle of chin.

(5) Abrasion 3 cm x 2 cm on the back of the left wrist

joint.

(6) Multiple abrasion on fingers of left hand.

(7) Multiple abrasion on the right hand and wrist.

(8) Abrasion 6 cm x 4 cm on the middle of chest.

(9) Abrasion mark of 1.5 cm all around neck.

(10)Contused swelling 6 cm x 6 cm on the inner part of

left thigh.

(11)Contused swelling 5 cm x 6 cm on the medial part

of right thigh.

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(12)Vagina is dilated by two fingers, which admits two

fingers easily.

(13)The vaginal walls were lacerated. Blood was flowing

from the vagina and nose.

(14)There was a tear on the vaginal wall. Brain was

congested. Echymosis was present beneath the ligature

mark. Hyoid bone was fractured. Blood was present in

the neck. Carotid artery was ruptured. Both the lungs

were congested. Right chamber of heart was full of

blood. The left chamber was empty. The walls were

greenish in colour and there was a foul smell. Gases

were present in the cavity. The tongue was protruded.

Food parts were present in the stomach and the large

intestine contained faecal matter and gases. The cause

of death was due to asphyxia as a result of

strangulation.

After completing the investigation, the charge-sheet was

submitted against the appellant by P.W. 5 D.P. Shukla (Ext.

Ka-14).

Apart from the aforesaid formal witnesses, three witnesses of

fact have been examined in this case. They are P.W. 1

Chhavinath, P.W. 2 Sheru and P.W. 3 Ram Moorat Gond.

P.W. 1 Chhavinath Gaur deposed that on the date of incident

the children of his nephew Ram Moorat, Sheru aged 7 years

and Priyanka aged 5 years had gone to the door of Vijai

Bahadur Gaur, who had plucked guavas and given it to them.

Vijai Bahadur asked Sheru to go home and he said that he

would be taking Priyanka to her aunt (bua) Sitapati's

residence at Chopan. Sheru had returned home alone. When

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Priyanka did not return till evening, then Sheru was

questioned, and he disclosed the above mentioned facts. The

witnesses then went to Vijai Bahadur's house, but he was not

present there, nor was Priyanka present. Then when a mobile

call was made to Sitapati she disclosed that neither Vijai

Bahadur, nor Priyanka had come to her place. After that a

search was made for several days for Vijai Bahadur and

Priyanka, but they were not found.

On 3.1.2010 it was learnt that Vijai Bahadur had come home.

On that information P.W. 1 Chhavinath Gaur, Shyama Charan,

Ram Moorat, Ram Bachan and other villagers went to Vijai

Bahadur 's house and made inquiries about Priyanka. First he

denied having any information, but when he was questioned a

little firmly and informed that he would be taken to the police

station and the witnesses took him out of the baithaka i.e.

sitting room, where he was sitting, then he fell on the feet of

the witnesses and admitted to have committed a big mistake.

He disclosed that he had taken Priyanka to Om Prakash

Advocate's Arahar field, where he tried to commit rape on

Priyanka. He had made Priyanka naked. When she started

crying he realized that she would disclose all these facts at

her home. Then with a nylon belt, he strangled her. Vijai

Bahadur then took Chhavinath and others to the middle of the

Arhar field of Om Prakash, where he had raped and murdered

Priyanka. The corpse was lying in a nude condition and it had

got distended. Priyanka's clothes were lying on her body and

there was a nylon belt on her neck. He took Vijai Bahadur

along with him to lodge the report at P.S. Chunar, where he

handed over Vijai Bahadur to police custody.

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After satisfying himself of the capacity of the 8 or 9 year old

Sheru, P.W. 2 Sheru, the brother of the deceased to depose

his evidence was recorded by the trial Judge. At the time of

incident Sheru was 7 years old, whilst Priyanka was 5 years

old. This witness deposed that he along with Priyanka had

gone to Vijai Bahadur's place on the date of incident, which

was one year earlier at about 10.30 a.m. On seeing them,

Vijai Bahadur had plucked guavas from his guava tree, and

handed them over to the children. Viay Bahadur had sent him

home telling him that he would be taking Priyanka to her

bua's place. When Priyanka did not return till evening, on

being asked, he told his parents about the happenings in the

morning at Vijai Bahadur's place. After that his sister Priyanka

never returned. After 5-6 days of the disclosure by Vijai

Bahadur, Priyanka's dead body was recovered from an

Arahar field. She had been murdered by Vijai.

P.W. 3 Ram Moorat Gond deposed that Sheru was his son and

Priyanka was his daughter. On 29.12.2009 at about 10.30

a.m., Priyanka had gone along with Sheru to Vijai Bahadur's

place. When Priyanka did not return till evening, then he

asked Sheru about her whereabouts. Thereupon Sheru

disclosed how Vijai Bahadur had plucked guavas from his tree

and had given them to Priyanka and Sheru. He had asked

Sheru to go home and had said that he would be taking

Priyanka to her bua's place. Then he made a search for Vijai

Bahadur and Priyanka, but they were not found. He phoned

his sister Sita in Chopan and learnt that neither Priyanka, nor

Vijai Bahadur had arrived at her place. After that he searched

for his daughter amongst relations and acquaintances, but got

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no information about Priyanka or Vijai Bahadur. On

03.01.2010 at about 7 a.m. on receiving information that Vijai

Bahadur had come home, this witness along with his uncle

Chhavinath, Shyamacharan, Rambachaan Gaur, Sheru and

other villagers had gone to the house of Vijai Bahadur Gaur.

He was present in his sitting room. When, they asked Vijai

Bahadur about Priyanka, initially he disclosed nothing. But

when Ram Moorat and others persisted in making inquiries,

till about 11 a.m. and threatened to take him to the police

station Chunar and pulled him out of the baithaka (sitting

room) with that objective, then Vijai Bahadur started

apologizing and admitted to having committed a great

mistake. He admitted that on the date of incident, when he

started committing rape on Priyanka in the arhar field of Om

Prakash Advocate, she started running. Out of fear that

Priyanka would disclose all these facts at her home, he had

strangulated her with a belt causing her death. He then took

the witnesses to show them the dead body at the place where

it was lying. Then Vijai Bahadur led the way to Om Prakash's

field and then in the middle of the field, he pointed out the

corpse of Priyanka. The corpse was naked and clothes were

lying on her stomach and chest. Near the corpse of Priyanka,

again Vijai Bahadur apologised before the witnesses and

stated that he had committed a great sin. After that Vijai

Bahadur was taken to the police station, where a report was

lodged. At about 2.30 p.m. they arrived at the spot with the

police. The police took the body into custody and conducted

inquest, which he himself also signed, after it was read over

to him. The I.O. took the clothes (half pant, woollen sweater

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and shirt and a nylon belt (which was tied around Priyanka's

neck) in possession and prepared the recovery memos.

It was argued by the learned Amicus Curiae that the conduct

of the witnesses was unnatural that even though, the

deceased Priyanka had disappeared on 29.12.2009, no report

was lodged till the arrest of the appellant on 3.1.2010. Even a

gumsudagi or missing report was not lodged before the date

of arrest of the appellant. The alleged confessional statement

of the accused was given under pressure of the witnesses

after they had questioned him from 7 a.m. to 11 a.m. and

were threatening to to take him to the police station. Hence

the extra-judicial confessional statement, was inadmissible in

view of section 24 of the Evidence Act. As the F.I.R. and

evidence revealed that the appellant had already disclosed the

location of the dead body of Priyanka to be the field of Om

Prakash Vakil, hence the factum was known from before and

the said recovery fell foul of section 27 of the Evidence Act.

It was further argued that as some faecal matter seemed to

be present on the deceased, it was possible that the deceased

had gone to that place to ease herself, where she might have

been murdered by anyone. If the deceased had indeed been

kidnapped, the conduct of the witnesses in not asking Sheru

till evening time as to why she had not returned was

unnatural.

It is also argued that as the accused did not appear to have

any criminal antecedents and his age was only 24 years and

this being a case of circumstantial evidence, it did not fall in

the category of rarest of rare cases for awarding the death

penalty.

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Learned Government Advocate, on the other hand, contended

that the delay in lodging the F.I.R. and not taking action was

explained, as a search was being made for finding out the

whereabouts of Priyanka. There was no reason for the false

implication of the appellant, who had not even been initially

implicated, but he was involved in this crime only after he had

effected the recovery of the dead body from a concealed place

and had made the extra-judicial confession before the

witnesses. There was evidence of last-seen given by the child

witness, P.W. 2 Sheru, who was not shaken in his cross

examination. That the appellant absconded for 4 or 5 days

after the incident was another circumstance against him.

The accused had confessed to having committed the crime

and there is no reason to doubt the reliability, veracity and

truthfulness of the extra judicial confession given by the

accused, which was corroborated by the discovery of the

cadaver on the pointing out of the appellant from Om

Prakash's arhar field.There was no evidence or signs showing

that the appellant had been subjected to any beating for the

purpose of extracting an extra-judicial confession, and he had

not even set up such a case in his statement under section

313 Cr. P. C. No suggestion was given on behalf of the

appellant that the deceased and Sheru had not visited his

place in the morning of the incident. Looking to the brutality

of the crime where a 5 year old girl child had been brutally

raped and murdered and her nude body had been cast away

in the field, only the death sentence was appropriate

punishment for the appellant.

The prosecution has sought to rely on the following

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circumstances for establishing the complicity of the appellant

in this offence:-

(1) Evidence of last-seen

Priyanka aged 5 years had gone along with P.W. 2 her brother

Sheru aged 7 years to the place of the appellant and that the

appellant had plucked guavas from his tree and handed them

over to the two children. Then he had asked Sheru to go

home and had told him that he would be taking Priyanka

along with him to Priyanka's bua Sitapati's place in Chopan.

This child returned home alone. On being questioned in the

evening, he had disclosed these facts. The Court had satisfied

itself before examining Sheru that he could fully understand

the questions and was competent to depose. On a careful

perusal of the evidence of this witness, we find that he has

given clear and proper answers and there is no reason either

to doubt his understanding or the reliability or veracity of his

testimony. No suggestion was even given to this witness that

he had not come along with the deceased to the appellant's

place on the date of incident at about 10.30 a.m. or that he

and the deceased had not been given guavas by the

appellant.

(2) Absence of explanation about the fate of the

girl after being left in appellant's company.

Except an adamant denial of this fact as to what happened

to Priyanka after she was left in his company by Sheru, the

appellant has offered no explanation whatsoever regarding

her whereabouts. In Joseph S/o Kooveli Poulo vs. State of

Kerala, (2000) 5 SCC 197 it was held that a blanket denial

of the allegations against an accused regarding facts,

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which were exclusively within his knowledge, which only he

and none else could have explained, and also the falsity of

the defence plea are missing links for completing the chain

of incriminating circumstances necessary for connecting an

accused with the crime.

In Sahadevan @ Sagadevan vs. State, 2003 (1) SCC 534,

it has been held that if the prosecution is able to lead

evidence for showing that the missing person was last seen

in the company of the accused, thereafter, it becomes

obligatory on the accused to explain the circumstances, in

which the missing person and the accused had parted from

his company. This onus is also cast on the accused in view

of section 106 of the Evidence Act, as it is a fact specially

within the knowledge of the accused. The appellant has not

at all been able to explain as to how and in what

circumstances the deceased left home save by making a

blanket denial, which in view of the clear, reliable and

disinterested testimony of PW 2 Sheru, the 7 year old

brother of the deceased, is not believable.

(3)Absconding of the appellant.

After the incident dated 29.12.2009 the appellant absconded

and he only returned to his house in village Rampur

Sakteshgarh after 4 or 5 days on 3.1.2010 for collecting his

clothes as he wanted to go away to Mumbai, but he was

apprehended by the witnesses, P.W. 1 Chhavinath Gaur,

informant and the grand uncle of the deceased and P.W. 3

Ram Moorat Gaur, the father of the deceased and others at

about 7 a.m. on 3.1.2010. Section 8, illustrations (h) and (i)

of the Evidence Act mention that absconding of an accused

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after commission of an alleged crime are relevant

circumstances showing the subsequent conduct of an accused

and are admissible under the said provision.

(4)Extra judicial confession of the accused.

After the appellant was apprehended by the witnesses on

03.01.2010, he was questioned for several hours by P.W. 1

Chhavinath Gaur and P.W. 3 Ram Moorat Gaur and other

persons Shyamacharan and Rambachan, but although initially

he was silent, later when some pressure was put to this

accused, he admitted his mistake and fell at the feet of the

witnesses and stated that after he had sent back Sheru home

on 29.12.2009, he had taken Priyanka to the pigeon pea

(arhar) field of Om Prakash, where he tried to commit rape on

her. When she began crying and started running away, then

fearing that she would speak about the crime, he had

strangled her neck with a nylon belt and had thrown her nude

dead body in the middle of Om Prakash's field. He had then

placed her clothes on her stomach and chest.

In this connection, it was argued by the learned Amicus

Curiae that the extra judicial confession could not be read

against the appellant because some pressure was exerted on

the appellant and he was threatened that he would be taken

to the police station and therefore, it was hit by section 24 of

the Evidence Act. It would be useful to examine this

contention. Section 24 of the Evidence Act reads as under:-

“24. Confession caused by inducement, threat or promise,

when irrelevant in criminal proceeding. ---A confession made

by an accused person is irrelevant in a criminal proceeding, if

the making of the confession appears to the Court to have

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been caused by an inducement, threat or promise, having

reference to the charge against the accused person,

proceeding from a person in authority and sufficient, in the

opinion of the Court, to give the accused person grounds,

which would appear to him reasonable, for supposing that by

making it he would gain any advantage or avoid any evil of a

temporal nature in reference to the proceedings against him.”

Thus under the aforesaid provision, the confession by an

accused person is irrelevant in a criminal proceeding only if it

appears to have been caused by any inducement, threat or

promise having regard to the charge of the accused person,

proceeding from a person in authority and which in the

opinion of the Court was sufficient for making the accused

person think that he would gain some advantage and avoid

any evil in reference to the proceedings against him. In the

first place at the stage when the appellant was taken by the

villagers to get the cadaver of the missing girl discovered, no

proceeding had been initiated against the appellant. More

importantly the said extra judicial confession before the

villagers could not have been said to have been made on

account of pressure from any person or authority, who had

the power of protecting the accused. In Darshan Lal vs. State

of Jammu and Kashmir, (1975) 4 SCC, 34 , it has been held

that the uncle and cousin of the accused husband of the

deceased, were not persons in authority and hence the extra

judicial confession made before them, was not covered by the

interdict of section 24 of the Evidence Act and did not suffer

from any legal infirmity. Even a Village Administrative Officer

has been held not to be a person in authority in Siva Kumar

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Vs. State, (2006) 1 SCC, 714.

In the case of Ratan Gaur Vs. State of Bihar, 1959 SCR,

1336, whereas a Mukhia, Sarpanch and Panch have been held

to be persons in authority, but the extra judicial confession

made before them was held not to be inadmissible under

section 24 of the Evidence Act as it could not be said on the

facts of the case that the confession was the result of any

inducement or threat or promise held out by those persons.

In the present case also we find that except for a threat

extended to the appellant by the villagers that they would

take him to the police station no force or pressure was applied

to the appellant, nor was he subjected to any assault or

violence, and no injury was seen on his body, but it seems

rather that he had become repentant for the crime after

committing it and hence had confessed to his crime before the

villagers in a spirit of remorse, seeking their pardon for his

crime. The confession does not appear to be the result of any

inducement, and certainly it was no inducement which was

made on account of pressure of any authority. Significantly in

his 313 Cr.P.C statement, the appellant had stated that after

the offence, the village people had tied up his family

members, in order to call him. He had reached Chunar by the

Jammu Tavi Express, when he was picked up by the police.

Therefore, except for the blanket denial, and his false

submission as to the mode of his apprehension, he has not

suggested anywhere that he had made the confession

because of pressure of the villagers.

Learned amicus curiae further contended that the said

recovery was not admissible under section 27 of the Evidence

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Act as the appellant had already informed the witnesses that

the dead body was lying in the arhar field of Om Prakash and

also because the cadaver was recovered from an open field,

therefore, the recovery could not be used for linking the

appellant with this offence. We think this submission is clearly

erroneous. In the first place, the recovery in the instant case

was not made under section 27 of the Evidence Act at all.

Section 27 of the Evidence Act reads as follows:-

“27. How much of information received from accused may be

proved.---Provided that, when any fact is deposed to as

discovered to consequence of information received from a

person accused of any offence, in the custody of a police

officer, so much of such information, whether it amounts to a

confession or not, as relates distinctly to the fact thereby

discovered, may be proved.”

Thus, section 27 of the Evidence Act, which is an exception

to sections 25 and 26 of the Evidence Act, (the latter two

sections speak of the prohibition of utilisation of confessions

made to a Police Officer, unless the said confession is made in

the presence of a Magistrate). Section 27 of the Evidence Act

permits a limited use of the confession to a police officer

inasmuch as some discovery is made consequent to a fact

deposed to by the accused, who is in the custody of a police

officer and only so much of such information, whether it

amounts to a confession or not, as relates distinctly to the

fact thereby discovered, may be proved. The reason for this

exception is that even though confessions made before the

police officer have been made inadmissible to prevent an

allegation of misuse of his authority by the police officer, but

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so far as something is discovered as a result of the

confession, that part of the statement relating to the

discovery is made admissible because the statement or

deposition is confirmed by the discovery of the concealed

item, of which only the accused had any knowledge. But as in

the present case the confession was not made before any

police officer, there was no question of application of section

27 of the Evidence Act, nor was the extra-judicial confession

subject to the limitations mentioned in the section that only

the knowledge relating to the information as was distinctly

related to the discovery of the concealed item was

attributable to the accused, and the other part of the

confession which was not necessarily related to the discovery

was inadmissible.

In any case no such fetter applies to an extra judicial

confession made to common persons, which is not a

confession to a police officer, and if the extra judicial

confession is such that implicit reliance can be placed on it,

then the entire confession, which includes knowledge or

information as to the circumstances of the crime, and also the

part which is a direct confession of his guilt, becomes legally

admissible.

In State of A.P. Vs. Kanda Gopaladu, (2005) 13 SCC 116 cited

by the learned Government Advocate in his written

arguments, after reviewing the case law, (i.e. the decisions in

Gura Singh v. State of Rajasthan, (2001) 2 SCC 205, Rao

Shiv Bahadur Singh v. State of V.P., 1954 SCR 1098 ,

Maghar Singh v. State of M.P., (1975) 4 SCC 234, Narayan

Singh v. State of M.P., (1985) 4 SCC 26, Kishore Chand v.

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State of H.P., (1991) 1 SCC 286, Baldev Raj v. State of

Haryana, 1991 Supp (1) SCC 14, Piara Singh v. State of

Punjab, (1977) 4 SCC 452, Madan Gopal Kakkad v. Naval

Dubey, (1992) 3 SCC 204 it has been held that there is no

reason to pre-suppose that evidence of extra judicial

confession is invariably evidence of a tainted or weak nature,

and it cannot be relied upon without corroboration even if

there are reasons to think that it is true and voluntary, and

was made before witnesses who have no reason to state

falsely regarding its contents and where no suggestions were

even given to the witnesses that the confession was tainted or

non-voluntary. Corroboration is required only by way of

abundant caution. If the Court believes the witness before

whom the extra-judicial confession was made and is satisfied

that it was true and voluntary, then the conviction can be

founded on such evidence alone.

In the present case from a close scrutiny of the extra-judicial

confession we are of the opinion that it is intrinsically reliable

and free from taint or weakness and the witnesses have no

reason to speak falsely regarding the extra-judicial confession

made before them. We find that the circumstance as to how

the accused had taken the 5 year old deceased girl along with

him mentioned in the extra-judicial confession, was a fact

which was also corroborated by PW 2 Sheru, and about which

on initial inquiry by the villagers the appellant gave no

explanation, but only after stern questioning by the villagers

he disclosed all the facts regarding the abduction and murder.

We think that this extra-judicial confession had a ring of truth

in it, on which implicit reliance could be placed, even if the

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appellant had not got the cadaver discovered.

But in the circumstances of this case, the strongest

corroboration of the extra-judicial confession comes from the

fact, that thereafter the appellant actually got Priyanka's

dead body discovered, which was concealed in the middle of

Om Prakash Vakil's arhar field.

That this discovery of the dead body was from a concealed

place, was only based on the appellant's disclosure and

pointing out of the corpse, and was not based on previous

discovery by the villagers or from the appellant's statement in

this extra-judicial confession that he had hidden the body in

Om Prakash Vakil's place, is apparent from the fact that only

after the appellant was apprehended by the villagers on

3.1.10 after 5 days of the disappearance of the deceased on

29.12.09, that the cadaver was found. Significantly when the

autopsy was conducted on the cadaver of Priyanka on

3.1.2010 at 4.30 p.m. by P.W. 4 Dr. N.K. Srivastava, he noted

that the deceased had died 4 to 7 days earlier. Her stomach

was distended and the body was in a decomposed state. It

would be wholly illogical to think that the rapidly putrefying

dead body had been found by the villagers, but they waited

for 5 days for the appellant's return, who had gone missing,

to lodge an FIR and to plant the recovery of the dead body on

him. One other reason for concluding that the body was in an

absolutely concealed state under the thick Arhar undergrowth

was the fact that the cadaver was even unharmed by animals

as was admitted by Dr. N.K. Srivastava, PW 4.

The faint suggestion regarding some dispute between the

appellant and the family of the deceased regarding some

20

sahan land was wholly unsubstantiated and was categorically

denied by PW1 Chavinath Gond, the informant and grand

uncle of the deceased and PW 3, Ram Moorat, her father.

This suggestion also therefore does not create any dent on

the reliability of the extra-judicial confession

(5) The delayed F.I.R. and inquiry from the witness

Sheru after disappearance of Priyanka.

Learned Amicus Curiae had tried to assail the credibility of the

prosecution case by pointing out to the delay in lodging the

F.I.R. We are of the opinion that this circumstance rather than

raising a doubt regarding the credibility of the prosecution

case is actually a circumstance for showing that the FIR was

lodged against the appellant only after the informant and

witnesses were fully satisfied about the complicity of the

appellant. We think that from the delayed lodging of the

report, it is apparent that the informant Chhavinath Guar,

grand uncle of the deceased and P.W. 3 Ram Moorat Gaur,

father of the deceased did not even in their farthest dreams

imagine that the appellant could have committed such a

dreadful crime. Therefore, beyond searching for the appellant

and the deceased for the next 4 or 5 days, they chose not to

lodge any report. Only after the appellant was apprehended

on 3.1.2010, and he confessed and got discovered the

cadaver of the deceased from the field of Om Prakash, that

the witnesses took the appellant to the police station and

handed him over to the police and lodged the report. It was

for the same reason they felt that no one would harm the 5

year old child, that the poor father of the deceased and

21

informant may not have even bothered to question Sheru till

the evening as to what had happened to Priyanka. It is not at

all unnatural that poor children play around and parents, who

are busy in carrying on with the problems of their own daily

lives trying to make two ends meet, sometimes become a

little careless even when the child is away from the home for

several hours in rural areas or in urban slums. But one

inference may be validly drawn that from the belated F.I.R.

and inquiry from Sheru, PW 2 and others regarding the

disappearance of Priyanka, it is apparent that the witnesses

were not at all interested in implicating the appellant until

they were completely sure that he had committed the crime,

and they had not implicated him on account of any enmity.

(5)Conclusions in the light of principles laid down in

cases law related to circumstantial evidence:

In the light of the aforesaid evidence and the settled

principles for appreciation of circumstantial evidence as laid

down in Sharad Birdhi Chand Sarda Vs. State of Maharashtra,

(1984) 4 SCC 116, Shivaji Sahabrao Bobade Vs. State of

Maharashtra, 1973 (2) SCC, 793, Padala Veera Raddy Vs.

State of A.P., 1990 SC 79, Ramreddy Rajesh Khanna Reddy

Vs. State of A.P., 2006 (10) SCC 172 and Jagroop Singh Vs.

State of Punjab, (2012) 11 SCC 768 et al, the primary

requirement for convicting an accused in a case of

circumstantial evidence is that the mental distance between

'may be' and 'must be' ought to be bridged and that

conviction cannot be recorded on vague conjectures. The facts

established should be consistent only with the hypothesis of

the guilt of the accused. The circumstances should be of a

22

conclusive nature and tendency; they should exclude any

other possible hypothesis except the one to be proved and

that the chain of other evidence must be so complete, so as

to leave no other reasonable ground for a conclusion

consistent with the innocence of the accused and must show

that in all human probability the crime must have been

committed by the accused. In this case, from the

incriminating circumstances enumerated above, the mental

distance between 'may be' and 'must be' has clearly been

bridged. The circumstances such as absconding by the

accused for 5 days, after he had taken away the deceased,

the extra judicial confession after being apprehended before

the villagers and more significantly, the recovery of the dead

body of the deceased from a hidden place, deep inside an

“Arhar” field by the appellant, information regarding which

fact only he had knowledge, are all circumstances, which are

consistent only with the hypothesis of the guilt of the accused

and are inconsistent with his innocence and clearly show that

in all human probability, it was the accused and none other

who had committed this crime. We, therefore, uphold the

findings and conclusion of the Trial Judge convicting the

appellant.

(6)The question of sentence

The final question, which arises in this case is what would be

appropriate sentence and whether this was the rarest of rare

case, where the sentence of death awarded by the Trial Judge

be upheld. It can not be doubted that the crime of the

appellant in sending away the 7 year old brother of the

23

deceased after giving a guava to him, and then his luring

away the 5 year old deceased Priyanka (who must have been

close to the appellant), on the false pretext that he would

take Priyanka to her bua's place in Chopan and thereafter

committing rape and murder of the little girl was an extremely

brutal crime. But it has now been reiterated in a number of

cases that the nature of the crime cannot be the only

consideration, without taking into account the antecedents of

the offender, for deciding whether a particular case was the

rarest of rare case, where the death sentence was the only

option, and where the other option of awarding a sentence of

life imprisonment was unquestionably foreclosed.

In the Constitutional bench decision, Bachan Singh vs. State

of Punjab, (1980) 2 SCC 684 which was even cited by the trial

judge, the Apex Court has enjoined giving importance to the

antecedents of the prisoner, apart from the gravity of the

crime, for reaching the conclusion whether only a death

sentence was appropriate. Although it was noticed by the trial

Judge, the circumstances that this offender was a young man

of about 21 or 22 years or that this was his first crime have

however not been taken into account, but only the depravity

of the crime was considered. There was also no material to

suggest that the reform of the appellant was wholly

improbable and that he was likely to commit such crimes in

the future, about which a positive finding has to be given as

per Bachan Singh. The appellant may also not have planned

to commit the crime, but suddenly when the victim appeared

along with her brother at his door step, he may have lost his

head, and then he may have taken her to Om Prakash Vakil's

24

field where he ravished her, and on seeing her protests and

cries, and fearing exposure he may have murdered the

deceased, and then hidden her body in Om Prakash's field

and then had run away from the spot. In somewhat similar

circumstances, in Amit v State of U.P., (2012) 4 SCC 107,

where a 3 year old girl had been murdered by a 28 year old

man, the Apex Court converted a sentence of death to a

sentence of life imprisonment, to run for the whole life of the

prisoner, as he had no criminal antecedents, and it was not

likely that the accused would repeat the offence. Thus it was

mentioned in Amit in para 22:

“In the present case also, we find that when the

appellant committed the offence he was a young person

aged about 28 years only. There is no evidence to show

that he had committed the offences of kidnapping, rape or

murder on any earlier occasion. There is nothing on

evidence to suggest that he is likely to repeat similar

crimes in future. On the other hand, given a chance he

may reform over a period of years. Hence, following the

judgment of the three-Judge Bench in Rameshbhai

Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC

764 we convert the death sentence awarded to the

appellant to imprisonment for life and direct that the life

sentence of the appellant will extend to his full life subject

to any remission or commutation at the instance of the

Government for good and sufficient reasons.”

In Raju v State of Haryana, (2001) 9 SCC 50, the appellant

had committed the rape and murder of the 11 year old

deceased after enticing her with toffees. On his arrest, his

25

shirt and and pant had bloodstains and his underwear had

blood and seminal stains. The accused gave no explanation of

the blood stains. The Supreme Court held that as the

appellant who had no criminal antecedents, appeared to have

acted without premeditation in giving two brick blows to the

deceased after she threatened to expose him, it could not be

concluded that he would be a danger to society, and the

sentence of death awarded by the Courts below was

commuted to a sentence of imprisonment for life.

In Amrit Singh v. State of Punjab, (2006) 12 SCC 79, where a

7 year old child was raped and murdered by the 31 year old

accused, the Apex Court had converted the sentence of death

to life imprisonment holding that this was not the rarest of

rare case and the crime may have been committed because of

a momentary lapse, on part of the the accused on seeing the

girl at a secluded place, and the deceased may have been

gagged inadvertently, without any intention to kill her.

Paragraphs 21 and 22 of the law report read:

“21. The opinion of the learned trial Judge as also the

High Court that the appellant being aged about 31 years

and not suffering from any disease, was in a dominating

position and might have got her mouth gagged cannot be

held to be irrelevant. Some marks of violence not only on

the neck but also on her mouth were found. Submission of

Mr. Agarwal, however, that the appellant might not have

an intention to kill the deceased, thus, may have some

force. The death occurred not as a result of strangulation

but because of excessive bleeding. The deceased had bleed

half a litre of blood. Dr Reshamchand Singh, PW 1 did not

26

state that injury on the neck could have contributed to her

death. The death occurred, therefore, as a consequence of

and not because of any specific overt act on the part of the

appellant.

22. Imposition of death penalty in a case of this nature, in

our opinion, was, thus, improper. Even otherwise, it cannot

be said to be a rarest of rare cases. The manner in which

the deceased was raped may be brutal but it could have

been a momentary lapse on the part of the appellant,

seeing a lonely girl at a secluded place. He had no

premeditation for commission of the offence. The offence

may look heinous, but under no circumstances, can it be

said to be a rarest of rare case.”

In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat,

(2011) 2 SCC 764 there was a difference of opinion of the two

Judges who had heard the case on whether a death sentence

of a sentence of life imprisonment be awarded. Accordingly

the matter was referred to a larger Bench which observed

that as the accused was about 27 years of age who had raped

and killed a child studying in a school in Class IV, but as there

was no finding regarding the possible reformation and

rehabilitation of the appellant and the possibility of his

becoming a useful member of society on being given the

opportunity, hence the proper course in the case would be to

substitute the sentence of death with a sentence of

imprisonment for life subject to remissions and commutation

at the instance of the Government for good and sufficient

reasons. Paragraphs 9 and 10 of the law report at SCC page

27

767, read as follows:

“9. Both the Hon’ble Judges have relied extensively on

Dhananjoy Chatterjee case,(1994) 2 SCC 220 . In this

case the death sentence had been awarded by the trial

court on similar facts and confirmed by the Calcutta High

Court and the appeal too dismissed by this Court leading

to the execution of the accused. Ganguly, J. has,

however, drawn a distinction on the facts of that case

and the present one and held that as the appellant was a

young man, only 27 years of age, it was obligatory on

the trial court to have given a finding as to a possible

rehabilitation and reformation and the possibility that he

could still become a useful member of society in case he

was given a chance to do so.

10. We are, therefore, of the opinion that in the light of

the findings recorded by Ganguly, J. it would not be

proper to maintain the death sentence on the appellant.”

Both the Hon’ble Judges have relied extensively on

Dhananjoy Chatterjee case,(1994) 2 SCC 220 . In this

case the death sentence had been awarded by the trial

court on similar facts and confirmed by the Calcutta High

Court and the appeal too dismissed by this Court leading

to the execution of the accused. Ganguly, J. has,

however, drawn a distinction on the facts of that case

and the present one and held that as the appellant was a

young man, only 27 years of age, it was obligatory on

the trial court to have given a finding as to a possible

28

rehabilitation and reformation and the possibility that he

could still become a useful member of society in case he

was given a chance to do so.”

In Akhtar v. State of U.P., (1999) 6 SCC 60, for the rape

and murder by gagging of a young girl, who the appellant

came across at a lonely place, the sentence of death awarded

to the accused was converted to one of life imprisonment and

it was observed in paragraph 3 at SCC pp. 62-63:

“3. … But in the case in hand on examining the evidence

of the three witnesses it appears to us that the appellant-

accused has committed the murder of the deceased girl not

intentionally and with any premeditation. On the other

hand the appellant-accused found a young girl alone in a

lonely place, picked her up for committing rape; while

committing rape and in the process by way of gagging the

girl has died. The medical evidence also indicates that the

death is on account of asphyxia. In the circumstances we

are of the considered opinion that the case in hand cannot

be held to be one of the rarest of rare cases justifying the

punishment of death.”

In Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC

28, where the 30 year old accused had raped and killed a

one-and-a-half year old child, even after describing the crime

as heinous, and that the appellant had no control over his

carnal desires, the Apex Court had converted the death

penalty to one of imprisonment for life holding that a

humanist approach needed to be followed and it could not be

held that the appellant was such a desperate person who

29

would endanger the community. It was held at page 40 of

SCC para 25:

“25. Coming to the case in hand, the crime committed is

undoubtedly serious and heinous and the conduct of the

appellant is reprehensible. It reveals a dirty and perverted

mind of a human being who has no control over his carnal

desires. Then the question is: whether the case can be

classified as of a ‘rarest of rare’ category justifying the

severest punishment of death. Treating the case on the

touchstone of the guidelines laid down in Bachan Singh,

(1980) 2 SCC 684, Machhi Singh, (1983) 3 SCC 470 and

other decisions and balancing the aggravating and

mitigating circumstances emerging from the evidence on

record, we are not persuaded to accept that the case can

be appropriately called one of the ‘rarest of rare cases’

deserving death penalty. We find it difficult to hold that the

appellant is such a dangerous person that to spare his life

will endanger the community. We are also not satisfied that

the circumstances of the crime are such that there is no

alternative but to impose death sentence even after

according maximum weightage to the mitigating

circumstances in favour of the offender. It is our

considered view that the case is one in which a humanist

approach should be taken in the matter of awarding

punishment.”

In Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3

SCC127 which was a case where an impecunious 36 year old

U.P. migrant labourer had raped a young girl after being

rebuffed by her mother for demanding sexual favours, in

30

which the death penalty awarded to the accused was

converted to life imprisonment as there was no material for

showing that the appellant was involved in any other case or

that he would be a menace to society. In para 13 it was held

(SCC p. 131):

“13. The next question that arises for consideration is

whether this is a ‘rarest of rare case’; we do not think that

this is a ‘rarest of rare case’ in which death penalty should

be imposed on the appellant. The appellant was aged 36

years at the time of the occurrence and there is no

evidence that the appellant had been involved in any other

criminal case previously and the appellant was a migrant

labourer from U.P. and was living in impecunious

circumstances and it cannot be said that he would be a

menace to society in future and no materials are placed

before us to draw such a conclusion. We do not think that

the death penalty was warranted in this case.”

Learned G.A. on the other hand in his written arguments

seeking death penalty for the appellant placed reliance on

Bantu v. State of U.P., (2008) 11 SCC 113, Mohd. Mannan v

State of Bihar, (2011) 5 SCC 317, and Rajendra Prahladrao

Vasnik v. State of Maharashtra, (2012) 4 SCC 37, (2009) 3

SCC (Cri) 146, where the Apex Court has held that on

balancing the aggravating with the mitigating circumstances,

the only punishment that would suffice in those cases looking

to the brutality of the crimes, was a sentence of death.

In Bantu v. State of U.P., (2008) 11 SCC 113 the Capital

sentence awarded in a case where a minor girl of 5 years was

raped and murdered was upheld, as the Apex Court, following

31

the principles laid down in Bachan Singh, pointed out that the

death sentence was appropriate in cases when the victim of

the murder was an innocent child or a helpless woman or old

or infirm person or a person vis-à-vis whom the murderer was

in a dominating position, or a public figure generally loved

and respected by the community.

In Mohd. Mannan, a 7 year old girl had been done to death by

a 43 year old mason who was working in the house. He had

sent the victim child to buy betel to a shop after winning her

trust. He thereafter followed her to the shop, and took her

away on a bicycle to a lonely spot, where he murdered her

after causing various injuries to her for satisfying his lust.

None suspected his evil designs, as the victim was a thin

unattractive girl barely four feet in height. The Apex Court

noticed the brutality of the crime and considered the appellant

a menace incapable of reform.

In Rajendra Prahladrao Vasnik a 3 year old girl had been lured

away on the pretext of buying her biscuits away by a 31 year

old man with a false identity who had and won the trust of a

poor family. Thereafter the girl had been brutally raped, and

there were bleeding injures on her nose and mouth, and on

her private parts. There were even bite marks on her chest.

The deceased was then left in a naked condition in an open

field.

In the recent decision of the Apex Court, Shankar Kisanrao

Khade v State of Maharashtra, (2013) 5 SCC 546, its earlier

decision in Sangeet v. State of Haryana, (2013) 2 SCC 452 ,

was reiterated and it was observed that the appropriateness

of the “balancing test” of balancing the aggravating and

32

mitigating circumstances, the aggravating circumstances

being the circumstances of the crime, and the mitigating

circumstances being the circumstances of the criminal needed

to be reconsidered, as these distinct and unrelated factors

could not be put on the same scale. Hon'ble K.S.P.

Radhakrishnan J in his opinion in Shankar Kisanrao Khade

noted that even where the aggravating circumstances were

extremely grave, only if the mitigating circumstances relating

to the accused were zero percent, i.e. there was complete

absence of any circumstance favourable to the accused

personally with regard to his antecedents, could the case be

considered one where the death penalty might be justified.

Even then it needed to be considered whether it was the

rarest of rare case where only a death penalty was

appropriate. In Shankar Kisanrao, the 52 year old appellant

had enticed a 12 year old moderately intellectually challenged

girl living with her grandmother, and then repeatedly

sodomized and raped her before strangulating her. However

as the appellant had only been earlier implicated for the

murder of his wife and also in a case under section 380/ 457

IPC, but was not convicted in those cases, hence the Apex

Court considered the High Court allegation against the

appellant of having criminal antecedents not to have been

established, and the case in hand was therefore not

considered the rarest of rare cases for award of the death

penalty. Justice Radhakrishnan in paragraphs 37,38 and 39 of

the law report specifically faulted the judgements in Mohd.

Mannan, and Rajendra Prahladrao Vasnik for applying the

“balancing test.”

33

In his separate opinion Justice Madan B. Lokur has observed

in paragraph 123 of the law report, that the possibility of

reform or rehabilitation of the appellant was not ruled out by

any expert evidence in Mohd. Mannan, and Bantu unlike some

other cases the conviction being based only on circumstantial

evidence was not held to be a mitigating factor. The

youthfulness of the offender and absence of criminal

antecedents was also not considered in these cases

In the aforesaid background we are of the opinion that this is

not the rarest of rare cases, where the special reasons exist

for only awarding the death penalty and where the other

option of awarding a sentence of imprisonment for life was

unquestionably foreclosed.

In another case of rape and murder of an eighteen year old

girl, by a young painter working in the house, who was

suddenly overwhelmed by a sense of lust, and who after

committing the murder tried to conceal the corpse in a trunk

in the house, this Court in Sanjay Kumar v State of U.P.,

(2012) 77 ACC 65 after relying on the decisions in Ramraj v

State of Chattisgarh, (2010) 1 SCC 573, Mulla v State of U.P,

(2010) 3 SCC 508, and Rameshbhai Chandubhai Rathod (2) v

State of Gujarat (2011) 2 SCC 764, had commuted the

sentence of death, to a sentence of imprisonment for life for

the remainder of the appellant's life subject to the clemency

powers of the President or Governor under Articles 72 or 161

or the State's powers of remission under the relevant statute.

In an appeal preferred against the said judgment in State of

U.P. v Sanjay Kumar, reported in (2012) 8 ACC 537, the Apex

Court after reviewing the case law on the point, had regarded

34

this approach of the High Court as finding an appropriate via

media, for situations where the Court may be loath to impose

a sentence of death for any extenuating circumstances, and

yet may feel that the routine sentence for life which in

practice works out to a sentence of 14 years or 20 years in

view of guidelines framed by the State was grossly

inadequate or disproportionately small. For such offences, the

sentencing or the Appellate Court for proportionate

sentencing whilst doing away with the death sentence in a

particular case, could impose a sentence even extending for

the prisoner's entire remaining natural life, or for a fixed term

over and above the mandatory 14 years actual jail term under

section 433 A Cr.P.C, subject to the State retaining its powers

of exercise of clemency or for granting remission, in a bona

fide and non-arbitrary and objective manner.

On these considerations we are of the view that the

judgement of the trial judge convicting the appellant as above

be upheld. However the death sentence awarded to the

appellant under section 302 IPC is commuted to a sentence of

imprisonment for life, which is to run for the remainder of the

appellant's natural life, subject to a bona fide exercise of the

clemency powers of the President or Governor or the powers

of remission of the State under the appropriate statutory

provisions. The remaining sentences awarded by the trial

Court are upheld. The Reference for confirming the death

sentence is rejected.

Appeal is partly allowed.

Dated: 10.02.2014

HSM