NAND KISHORE versus STATE OF MADHYA PRADESH on 18 January 2019

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[2019] 1 S.C.R. 260

SUPREME COURT REPORTS

[2019] 1 S.C.R.

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NAND KISHORE

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No. 94 of 2019)

BJANUARY 18, 2019

[S. A. BOBDE, L. NAGESWARA RAO ANDR. SUBHASH REDDY, JJ.]

Sentence/Sentencing – Death sentence – Award of – On facts,rape and murder of a minor girl by appellant aged 50 years –CConviction of the appellant u/ss.302, 363, 366 and 376(2)(i) andaward of death sentence on basis of the circumstantial evidence –Upheld by the courts below – On appeal, held: By applying the‘last seen’ theory to the facts of the case and considering the forensicand medical evidence on record, courts below rightly convicted theDappellant – As regards imposition of death sentence, it is theappellant’s case that he was denied the proper legal assistance inthe matter and is a manhole worker – It cannot be said that there isno possibility of reformation of the appellant – Reasons assignedby the courts below, do not constitute special reasons within themeaning of s.354(3) Cr.P.C to impose death penalty – Instant caseEdoes not fall within the ‘rarest of rare’ cases – In view thereof, thedeath sentence imposed by the trial court, as upheld by the HighCourt, is modified to that of life imprisonment with actual period of25 years, without any benefit of remission – Sentences imposed forall offences to run concurrently – Penal Code, 1860 – ss. 302, 363,366 and 376(2)(i) – Code of Criminal Procedure, 1973 – s.354(3).F

Partly allowing the appeal, the Court

HELD: 1.1 So far as the conviction is concerned, thefindings recorded by the trial court which are based on theappreciation of oral and documentary evidence on record, areGsatisfactory. Though the case totally rests on circumstantialevidence, it is to be noticed that PW-4, brother of the deceasedhad accompanied the deceased to ‘Mela’ on the fateful day. Hehas identified the accused in the Test Identification Parade andfurther he has categorically stated that the appellant took awaythe deceased from the ‘Mela’. Further, PW-1, has deposed thatH

when he was coming from his shop to the residence, he saw adog running away with a leg of a child in its mouth and on beingchased it dropped the leg. Further investigation revealeddetection of headless body of the deceased in the bushes. Further,PW-7, has also stated that he had seen the appellant on the fatefulday at 9:00 p.m. with a girl wearing yellow frock. By applying the‘last seen’ theory to the facts of the case and further consideringthe forensic and medical evidence on record, trial court has rightlyrecorded guilt of the accused for the offences alleged. Even theHigh Court, referring to the relevant evidence on record, rightlyconfirmed the conviction of the appellant for the charges levelledagainst him. [Para 10-11][265-C-G]

1.2 The instant case solely rests on circumstantial evidence.It is the specific case of the appellant that he was denied theproper legal assistance in the matter and he is a manhole worker.The appellant was aged about 50 years. Further, in this case thereis no finding recorded by the courts below to the effect that thereis no possibility of reformation of the appellant. The reasonsassigned by the trial court as confirmed by the High Court, donot constitute special reasons within the meaning of Section354(3) Cr.P.C to impose death penalty on the accused. Takinginto account the evidence on record and the totality of thecircumstances of the case, and by applying the test on thetouchstone of case law, the case on hand will not fall within the‘rarest of rare’ cases. In that view of the matter, the death sentenceimposed by the trial court, as confirmed by the High Court,requires modification. While confirming the conviction, recordedby the trial court, as confirmed by the appellate court, thesentence is modified to that of life imprisonment with actual periodof 25 years, without any benefit of remission. The sentencesimposed for all offences shall run concurrently. [Para 14][269-C-F]

Mukesh & Anr. v. State (NCT of Delhi) & Ors.(2017) 6 SCC 1 – distinguished.

Bachan Singh v. State of Punjab (1980) 2 SCC 684;Swamy Shradhananda(2) v. State of Karnataka (2008)13 SCC 767; Neel Kumar v. State of Haryana (2012) 5SCC 766; Selvam v. State (2014) 12 SCC 274; Tattu AB

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ALodhi v. State of Madhya Pradesh (2016) 9 SCC 675;Raj Kumar v. State of Madhya Pradesh (2014) 5 SCC353; Anil v. State of Maharashtra (2014) 4 SCC 69 –referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.94 of 2019.

From the Judgment and Order dated 25.06.2013 of the High Courtof Madhya Pradesh at Jabalpur in Criminal Appeal No. 798 of 2013.

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Sanjay R. Hegde, Sr. Adv., Pranjal Kishore, Dr. Sanjay Gupta,Yash S. Vijay, Dr. Sushil Balwada, Advs. for the Appellant.

Ms. Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar, Advs.for the Respondent.

The Judgment of the Court was delivered by F

R. SUBHASH REDDY, J. 1. Leave granted.

2. This criminal appeal is filed by the appellant in Criminal AppealNo.798 of 2013 filed before the High court of Madhya Pradesh atJabalpur, aggrieved by the judgment dated 25.06.2013. By the aforesaidGjudgment, while dismissing the appeal preferred by the appellant hereinconvicted for the offence under Sections 302, 363, 366 and 376(2)(i) ofthe Indian Penal Code (IPC), the High Court answered the reference inaffirmative by confirming the death sentence awarded to the appellant.

3. Necessary facts, in brief, giving rise to this appeal are that the H

deceased, a minor girl aged about 8 years, had gone to attend the ‘Mela’along with her younger brother namely Chhunu (PW-4) on 03.02.2013.It is the case of the prosecution that the appellant who is aged about 50years then, took away the deceased from the ‘Mela’ and committedrape and murdered her. Narendra (PW-2) informed the police statingthat his daughter, who had gone to attend the ‘Mela’, has not returnedhome. Upon such complaint, case was registered and investigationcommenced. In the course of investigation one Amit Mourya (PW-1)informed the Investigating Officer that when he was coming to his shopfrom residence, he saw a dog running away with a leg of a child in itsmouth and on being chased, the dog dropped the leg and ran away.Further, it was the case of the prosecution that in the process ofinvestigation, Investigating Officer found a headless body of the deceasedin the bushes near the ‘Dushera Maidan’, Bhopal. It is alleged that theleft leg of the deceased was found at a distance of 100 ft. and both legswere fractured. Further, it is noticed that there were severe injuries onthe private parts of the deceased inflicted by the appellant due to whichthe intestine had come out. During the process of investigation thestatement of the appellant was recorded under Ex.P8 and the bloodstained cloths and articles he used for the offence were recovered fromhis house. After completing the investigation, the appellant waschargesheeted for the offence punishable under Sections 363, 366,376(2)(i) and 302 of the IPC and Sections 5 and 6 of Protection ofChildren from Sexual Offences Act, 2012.

4. The trial court, after appreciation of the evidence on record,which is mainly circumstantial, came to the conclusion that the appellanthas committed rape on the minor girl and murdered her and further, byrecording a finding that the crime committed by the appellant is heinousand barbaric, falls within the category of ‘rarest of rare’ cases, imposedthe death sentence. The appellant is also convicted and sentenced forthe offence punishable under Sections 363, 366, 376(2)(i) of the IPC. Inview of the award of death sentence, the trial court has made a referenceto the High Court for confirmation, as contemplated under Section 366of the Code of Criminal Procedure (Cr.PC). Questioning the convictionrecorded and sentence imposed, the accused has filed appeal in CriminalAppeal No.798 of 2013 and the High Court has disposed of, by commonjudgment, Criminal Reference No.05/2013 and Criminal Appeal No.798/2013. The High Court, by judgment dated 25.06.2013, while dismissingthe appeal of the appellant, has affirmed the reference confirming the AB

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Adeath sentence awarded to the appellant.

5. We have heard learned senior counsel for the appellant, SriSanjay R. Hegde and also learned counsel appearing for the State Ms.Swarupama Chaturvedi.

6. In this appeal, it is contended by learned counsel for the appellantBthat though there is no acceptable and convincing evidence to prove theguilt of the accused beyond reasonable doubt, the appellant is convictedby the trial court based on the circumstantial evidence which is not enoughto record guilt of the accused. It is submitted that from the evidence onrecord, the prosecution has also failed to prove concept of ‘last seen’. ItCis further submitted that the trial court as well as High Court hascommitted error in imposing the death sentence upon the appellant withoutexamining mitigating circumstances. It is submitted that the sentenceimposed is illegal and contrary to the legislative mandate under Sections235(2) and 354(3) of the Cr.PC. It is contended that without examiningrelevant considerations of legislative policy discernible from SectionsD354(3) and 235(2) of the Cr.PC, only by recording a finding that theincident is barbaric, the trial court and the appellate court have recordedthat the case of the prosecution falls under ‘rarest of rare’ cases andimposed death sentence. It is submitted that all the mitigatingcircumstances which exist were to be considered. The penalty of deathEimposed is required to be modified.

7. To support his contention, learned counsel has referred to certaincases decided by this Court in identical circumstances. It is specificallysubmitted that relevant aspects, like, the socio-economic background ofthe appellant, lack of criminal antecedents, possiblity of reform, are notFconsidered. It is also brought to the notice of this Court that the localBar Association, Bhopal had refused to represent the appellant, as such,the appellant was not represented by counsel before the trial court untilthe date of the framing of the charge. On request made by the appellanton the day of framing of charge, for grant of legal aid, trial court hasrequested one Mr. Katyayni to appear and the same day charges wereGframed and the trial was proceeded with.

8. On the other hand, learned counsel appearing for the State hassubmitted that though the appellant was convicted based on circumstantialevidence, but the evidence adduced is sufficient and consistent. It issubmitted that PW-4 had identified the accused as the person with whom H

the deceased was last seen and PW-4 also identified the accused in theTest Identification Parade. Further, PW-7 has categorically stated in hisdeposition that he saw the accused in the company of minor girl wearingyellow frock at 9 p.m. on 03.02.2013. It is submitted that the said oralevidence if considered with reference to report of the forensic expertand medical evidence on record, there is absolutely no infirmity in thefindings recorded by the trial court convicting the appellant for offencescharged. It is stated, having regard to the nature of the crime, that it isheinous and barbaric, it falls within the category of ‘rarest of rare’ cases.It is submitted that having regard to reasons recorded by the trial court,as confirmed by the High Court, there are no grounds to interfere withthe conviction recorded and sentence imposed on the appellant.

9. Having heard the learned counsel for the parties, we haveperused the judgment of the trial court and High Court and other materialplaced on record.

10. So far as the conviction is concerned, we are satisfied withthe findings recorded by the trial court which are based on the appreciationof oral and documentary evidence on record.

11. Though the case totally rests on circumstantial evidence, it isto be noticed that PW-4 is the brother of the deceased who hasaccompanied the deceased to ‘Mela’ on the fateful day, i.e., on03.02.2013. He has identified the accused in the Test IdentificationParade and further he has categorically stated that the appellant tookaway the deceased from the ‘Mela’. Further, PW-1 – Amit Mourya,has deposed that when he was coming from his shop to the residence,he saw a dog running away with a leg of a child in its mouth and on beingchased it dropped the leg. Further investigation revealed detection ofheadless body of the deceased in the bushes. Further, PW-7 Abid Qureshi,has also stated that he had seen the appellant on 03.02.2013 at 9:00 p.m.with a girl wearing yellow frock. By applying the ‘last seen’ theory tothe facts of the case and further considering the forensic and medicalevidence on record, trial court has rightly recorded guilt of the accusedfor the offences alleged. Even the High Court, referring to the relevantevidence on record, has rightly confirmed the conviction of the appellantfor the charges levelled against him.

12. In this appeal, learned counsel for appellant focussed on deathpenality imposed and submitted that the relevant aspects are not A

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Aconsidered before recording a finding that the case falls in the categoryof ‘rarest of rare’ cases, so as to impose the death penalty. It is thespecific case of the appellant that several relevant aspects which arerequired to be considered before recording a finding of ‘rarest of rare’cases have escaped the attention by the trial court as well as by theHigh Court. It is specifically argued that special reasons, as requiredBunder Section 354(3) of the Cr.PC are not recorded; reasons recordedto impose death sentence, cannot be construed as special reasons withinthe meaning of Section 354(3) of the Cr.PC. It is further submitted thatfor the persons convicted of murder, life imprisonment is a rule anddeath sentence is an exception, as observed by a Constitution Bench ofCthis Court in case of Bachan Singh v. State of Punjab[1]and further, it issubmitted, that contrary to the ratio laid down in the aforesaid judgment,the focus was on the crime alone though it is the duty of the courts topay heed to the circumstances of the crime as well as the criminal.Further, the mitigating circumstances which existed and are to be givenliberal and expansive interpretation, are omitted from the consideration.DIt is further submitted that the sentence of death is to be imposed only incases when the option of life imprisonment is unquestionably foreclosed.

13. A useful reference can be made to the judgment in this regardin the case of Swamy Shradhananda(2) v. State of Karnataka[2]. Inthe aforesaid judgment, while confirming the conviction for offence underESection 302 of IPC, this Court, having regard to the facts andcircumstances of the case and considering the evidence on record, hassubstituted the death sentence by imposing imprisonment for life with aspecific direction that he shall not be released from the prison till the restof his life. In para 92, this Court has observed as under :

F“92. The matter may be looked at from a slightly different angle.The issue of sentencing has two aspects. A sentence may beexcessive and unduly harsh or it may be highlydisproportionately inadequate. When an appellant comes tothis Court carrying a death sentence awarded by the trial courtGand confirmed by the High Court, this Court may find, as in thepresent appeal, that the case just falls short of the rarest of therare category and may feel somewhat reluctant in endorsing thedeath sentence. But at the same time, having regard to the nature 1 (1980) 2 SCC 684 2 (2008) 13 SCC 767H

of the crime, the Court may strongly feel that a sentence of lifeimprisonment subject to remission normally works out to a termof 14 years would be grossly disproportionate and inadequate.What then should the Court do? If the Court’s option is limitedonly to two punishments, one a sentence of imprisonment, for allintents and purposes, of not more than 14 years and the otherdeath, the Court may feel tempted and find itself nudged intoendorsing the death penalty. Such a course would indeed bedisastrous. A far more just, reasonable and proper course wouldbe to expand the options and to take over what, as a matter offact, lawfully belongs to the Court i.e. the vast hiatus between 14years’ imprisonment and death. It needs to be emphasised thatthe Court would take recourse to the expanded option primarilybecause in the facts of the case, the sentence of 14 years’imprisonment would amount to no punishment at all.”

In the case of Neel Kumar v. State of Haryana[3] which is a caseof rape and murder of a minor, while confirming the conviction, thisCourt, on the facts and circumstances of the case and having regard tothe evidence on record, has modified the death sentence with award oflife imprisonment and directed that the accused must serve a minimumof 30 years of jail without remission. Paragraphs 37, 38 and 39 of thesaid judgment read as under :

“37. A three-Judge Bench of this Court in Swamy Shraddananda(2) v. State of Karnataka (2008) 13 SCC 767, considering thefacts of the case, set aside the sentence of death penalty andawarded the life imprisonment but further explained that in orderto serve the ends of justice, the appellant therein would not bereleased from prison till the end of his life.

38. Similarly, in Ramraj v. State of Chhattisgarh (2010) 1 SCC573, this Court while setting aside the death sentence made adirection that the appellant therein would serve minimum periodof 20 years including remissions earned and would not be releasedon completion of 14 years’ imprisonment.

39. Thus, in the facts and circumstances of the case, we set asidethe death sentence and award life imprisonment. The appellant AB

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Amust serve a minimum of 30 years in jail without remissions, beforeconsideration of his case for premature release.”

In the case of Selvam v. State[4]which is a case involving murderand rape of a child aged about 9 years, without interferring with thefinding of conviction, this Court, in the facts and circumstances of theBcase and considering the evidence on record, imposed a sentence of 30years in jail without remission. In the case of Tattu Lodhi v. State ofMadhya Pradesh[5] in a case involving kidnapping of minor girl agedabout 7 years and attempt to rape and murder, in the facts of the caseand the evidence on record, death sentence was modified to imprisonmentfor life with a direction not to release the accused from prison till heCcompletes actual period of 25 years of imprisonment. Further, in thecase of Raj Kumar v. State of Madhya Pradesh[6] in similarcircumstances, this Court has modified death sentence and awarded lifeimprisonment and directed the appellant therein to serve a minimum of35 years in jail without remission. Further, in the case of Anil v. State ofDMaharashtra[7] where in a case involving murder of a 10 year old boywho was subjected to carnal intercourse, this Court has held as under :

36. The legislative policy is discernible from Section 235(2) readwith Section 354(3) CrPC, that when culpability assumes theproportions of depravity, the Court has to give special reasonsEwithin the meaning of Section 354(3) for imposition of deathsentence. A legislative policy is that when special reasons doexist, as in the instant case, the Court has to discharge itsconstitutional obligations and honour the legislative policy byawarding appropriate sentence, that is, the will of the people. Weare of the view that incarceration for a further period of thirtyFyears, without remission, in addition to the sentence alreadyundergone, will be an adequate punishment in the facts andcircumstances of the case, rather than death sentence. Orderedaccordingly.”

14. The learned counsel appearing for the State has placed relianceGon the judgment of this Court in the case Mukesh & Anr. v. State (NCT

4 (2014) 12 SCC 274

5 (2016) 9 SCC 675

6 (2014) 5 SCC 353

7 (2014) 4 SCC 69

8 (2017) 6 SCC 1H

of Delhi) & Ors.[8][known as Nirbhaya case] in support of her case andsubmitted that applying the ratio laid down in the aforesaid judgment, thecase falls in the ‘rarest of rare’ cases attracting death penalty. Withreference to above said arguments of learned counsel for the State, it isto be noticed that the case of Mukesh (supra) is distinguishable on thefacts from the case on hand. It is to be noticed that Mukesh (supra) isa case of gang-rape and murder of the victim and an attempt to murderof the male victim. It was the specific case of the prosecution that thecrimes were carried out pursuant to a conspiracy and the accused wereconvicted under Section 120-B of the IPC apart from other offences.Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night.Further, it is also to be noticed that in the aforesaid case, there was adying declaration, eye witness to the incident etc. So far as the presentcase is concerned, it solely rests on circumstantial evidence. It is thespecific case of the appellant that he was denied the proper legalassistance in the matter and he is a manhole worker. The appellant wasaged about 50 years. Further, in this case there is no finding recorded bythe courts below to the effect that there is no possibility of reformationof the appellant. We are of the view that the reasons assigned by thetrial court as confirmed by the High Court, do not constitute specialreasons within the meaning of Section 354(3) of the Cr.PC to imposedeath penalty on the accused. Taking into account the evidence onrecord and the totality of the circumstances of the case, and by applyingthe test on the touchstone of case law discussed above, we are of theview that the case on hand will not fall within the ‘rarest of rare’ cases.In that view of the matter, we are of the view that the death sentenceimposed by the trial court, as confirmed by the High Court, requiresmodification. Accordingly, this appeal is allowed in part; while confirmingthe conviction, recorded by the trial court, as confirmed by the appellatecourt, we modify the sentence to that of life imprisonment with actualperiod of 25 years, without any benefit of remission. It is further madeclear that sentences imposed for all offences shall run concurrently.

Nidhi Jain

Appeal partly allowed.

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