MANOJ PRATAP SINGH versus THE STATE OF RAJASTHAN on 24 June 2022

[2022] 16 S.C.R. 743

MANOJ PRATAP SINGH

v.

THE STATE OF RAJASTHAN

(Criminal Appeal No(s).910-911 of 2022)

JUNE 24, 2022

[A. M. KHANWILKAR, DINESH MAHESHWARI ANDC. T. RAVIKUMAR, JJ.]

Sentence / Sentencing – Death Sentence – Rarest of Rare case– Kidnapping, rape and murder of a seven-and-a-half-year oldmentally and physically challenged girl – Case of circumstantialevidence – Trial Court found appellant-accused guilty and imposeddeath sentence u/s. 302 IPC – High Court found it to be a ‘rarest ofrare case’ and upheld the conviction and death sentence – Appealbefore the Supreme Court on two issues – First, whether concurrentfindings of fact required interference – Second, whether deathsentence be maintained or substituted by any other sentence – Held:On facts, the chain is so complete in itself that no stretch ofimagination could take the court to any other hypothesis except theguilt of the appellant in relation to the offences charged – Hence,the concurrent findings of the trial court and the High Court holdingappellant guilty are imminently just and proper; and call for nointerference whatsoever – Insofar as sentence is concerned, in thepresent case, the crime had been of extreme depravity, which shocksthe conscience, particularly looking to the target (a seven-and-a-half-year old mentally and physically challenged girl) and then,looking to the manner of committing murder, where the haplessvictim’s head was literally smashed, resulting in multiple injuriesincluding fracture of frontal bone – This is apart from the facts thatthe innocent victim was kidnapped on a stolen motorcycle by misusingthe trust gained by offer of confectionary items and also, apartfrom the fact that she was brutally and inhumanly raped – Takingup the test parameters pertaining to the criminal (i.e., the appellant),of course, he has a family with wife and minor daughter and agedfather and the crime was committed when he was only 28 years ofage – However, these mitigating factors are pitted against severalother factors pertaining to the appellant himself – One, being ofhis activities and actions before the present crime where he was

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Afound involved in at least four cases with offences ranging from s.3of Prevention of Damage to Public Property Act, 1984, s.379 IPCand even s.307 IPC – Second, being the fact that the present crimeitself was carried out with the aid of a stolen motorcycle – Third,and crucial one being his conduct post-conviction where he notonly earned 7 days’ punishment in jail for quarrelling with a co-Binmate but he has also been convicted of the offence of murder ofanother jail inmate – A fortiori, there appears no probability of hisreformation and rehabilitation – This possibility of the appellantrelapsing in the same crime over again and nil probability of hisreformation/rehabilitation is a direct challenge as also danger toCthe maintenance of order in the society – Consequently, it is a caseof no other option but to confirm the death sentence awarded to theappellant – Penal Code 1860 – ss. 302, 363, 365 and 376(2)(f).

Sentence / Sentencing – Death Sentence – Evolution ofprinciples and norms – Discussed – Code of Criminal Procedure,D1973 – ss.235 and 354.

Sentence / Sentencing – Death Sentence –Rarest of raredoctrine – Effect, if any, of death sentence being awarded andmaintained only in extreme cases – Held: Even though rarest ofrare doctrine and its accompanying principles, as enunciated andEexplained in Bachan Singh and Machhi Singh cases, have been almostuniformly applied by Courts in the country while dealing with thequestion of sentencing when the statute provides for death penalty;and over the time, even the proposition of larger/longer term ofactual imprisonment with no remission or curtailed remission hasalso evolved but, it has never been the effort of the Courts toFsomehow make the punishment of death sentence redundant andnon-existent for all practical purposes – The quest for justice insuch cases, with death sentence being awarded and maintained onlyin extreme cases, does not mean that the matter would be approachedand examined in the manner that death sentence has be avoided,Geven if the matter indeed calls for such a punishment – The judicialprocess would be compromising on its objectivity if the approach isto nullify the statutory provision carrying death sentence as analternative punishment for major offences (like that of s.302 IPC),even after it has passed muster of judicial scrutiny and has beenheld not unconstitutional – The pursuit in collecting mitigatingH

circumstances could also not be taken up with any notion or ideathat somehow, some factor be found; or if not found, be deducedanyhow so that the sentence of death be forsaken – Such anapproach would be unrealistic, unwarranted and rather notupholding the rule of law – Rule of law.

Sentence / Sentencing – Death Sentence – Post-convictionconduct – Relevance – Held: Courts have refrained from awardingor approving death sentence even in cases of gruesome killings,essentially on the premise that even a semblance of probability ofreformation of the convict ought to be given a chance, rather thanawarding capital punishment, which is of irretrievable nature – Inthis regard, the jail conduct of the convict carries its own bearingand relevance in the overall consideration; and the Supreme Courthas leaned in favour of commuting the sentence of death to that ofimprisonment for life in case of unblemished jail conduct, even ifthe crime itself had been of gruesome or abhorrent nature.

Sentence / Sentencing – Psychological evaluation report –Report on likelihood of reformation and rehabilitation – When maybe called for – Held:In appropriate cases, after conviction, theCourt may call for report to determine whether the accused couldbe reformed or rehabilitated; and it would depend on the facts andcircumstances of each case – There cannot be any universal formulafor calling for such a report – In the present case, where theappellant-convict was incessantly indulged in criminal activitiesbefore the crime in question; carried out gruesome deeds of thepresent crime; was further involved in questionable jail conduct,including quarrelling with a fellow inmate and earning 7 days’punishment; and then also involved in murder of another jail inmate,calling for any further report of the likelihood of reformation andrehabilitation of the appellant could be proposed only if the judicialprocess is determined to annul the death sentence altogether, byfinding one way or the other to avoid the same in every case – Suchan approach would be counter-productive to the entire system ofmaintenance of order in the society and would strike at the roots ofthe rule of law – In the circumstances of the present case, thesuggestions about calling for any so-called psychological evaluationreport could only be termed as impractical and unrealistic and couldonly be rejected.

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ASentence / Sentencing – Sentencing principles – Crime andcriminal tests – Aggravating and Mitigating circumstances –Discussed.

Criminal jurisprudence – Case of circumstantial evidence –Theory of residual doubt – If available for the purpose of sentencingB– Held: In a case based on circumstantial evidence, the conclusionof guilt is recorded only after the circumstances are found to beforming an unbreakable chain, so consistent as to rule out anyother hypothesis except the guilt of the accused – These beingstringent norms, as followed consistently by the Courts based onthe panchsheel principles expounded in Sharad Birdhichand Sarda,Cand requirement being of the proof of the case beyond reasonabledoubt, theoretically there is no scope for any ‘residual doubt’operating even in the cases of circumstantial evidence – The casesin which theory of residual doubt has at all been referred, had beenstanding on their own facts, where alternative to death sentenceDwas considered appropriate – However, while taking up the matterfor sentencing, it is not expected to reopen the chain of circumstantialevidence to find any weak link which may fall in the category ofresidual doubt – If at all any such doubt is reasonably existing, thevery basis of conviction would be in question – After the finalconclusion on the guilt and after pronouncing conviction, no conceptEof residual doubt as such is available for the purpose of sentencing– Sentence / Sentencing.

Dismissing the appeals, the Court

HELD: 1. Having examined the post-mortem report andFthe testimonies of the doctors conducting post-mortem, it is clearthat even by distortion of language occurring in their testimonies,it cannot be deduced that there was any doubt or difference ofopinion in the Medical Board about the cause of death. In otherwords, the doctors had been clear, categorical and consistent thatthe victim girl died due to the injuries caused on her head. [ParaG37.2.2][810-G-H]

2. The facts and factors established beyond doubt on recordforming the complete chain of circumstances are that: a) thedeceased was seven-and-a-half-years old mentally and physicallychallenged girl; b) the deceased was last seen with the appellantH

when he kidnapped her from the lawful guardianship of herparents; c) the appellant was arrested within about 7½ hours ofkidnap; d) the clothes worn by the appellant were bloodstained,which were seized and sealed; e) after about 1½ hours of his arrest,the dead body of the victim girl was recovered at a faraway placeon the disclosure and information of the appellant; f) themotorcycle used by the appellant and the frock worn by the victimgirl were also recovered at a faraway place at the disclosure andinformation of the appellant; g) the appellant failed to account forhis own whereabouts as also the whereabouts of the victim girlsince after the time of kidnap; h) the appellant also failed to showthe reason of his knowledge about the place/places where thedead body, the motorcycle and the frock were recovered; i) asper the evidence on record, it had been a case of brutal rape(with gruesome injuries on and around private parts) andmerciless killing (with horrific injuries on head) of the victim girl;j) the victim died due to the injuries on her head; k) the DNAprofile of blood collected from the person and clothing of thevictim girl matched with the DNA profile of blood found on thecoat, pant and shirt of the appellant and on the motorcycle. Thischain is so complete in itself that no stretch of imagination couldtake this Court to any other hypothesis except the guilt of theappellant in relation to the offences charged. Hence, theconcurrent findings of the Trial Court and the High Court holdingthe appellant guilty are imminently just and proper; and call forno interference whatsoever. [Para 39][812-B-F; 813-A]

3. The present case of circumstantial evidence answers tothe panchsheel principles of Sharad Birdhichand Sarda of provinga case based on circumstantial evidence. The appellant was rightlyconvicted by the Trial Court and his conviction has rightly beenmaintained by the High Court. The prosecution has been able toprove its case beyond reasonable doubt, rather beyond any doubtwhatsoever. The chain of circumstances projected by theprosecution is complete in its entirety and leads only to the resultthat the appellant had been the person who kidnapped, rapedand murdered the victim, seven-and-a-half-years old mentally andphysically challenged girl. Hence, the concurrent findings leadingto conviction of the appellant deserve to be confirmed. [Para40][813-F-H]

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A4. The Trial Court had scrupulously carried out its duty interms of Section 235(2) CrPC. The judgment of conviction waspronounced on 28.09.2013 and the question of sentence was takenup 3 clear days later, i.e., on 01.10.2013; and the death sentencewas awarded only after duly hearing the accused-appellant, afterduly taking into consideration the aggravating and mitigatingBfactors, and while duly recording special reasons. [Para 50.1][848-A-B]

5. The heinous nature of the crime, like that of the presentone, in brutal rape and killing of a mentally and physicallychallenged girl, who was only about seven-and-a-half-year-old,Cdefinitely carries excessively aggravating circumstances,particularly when the manner of commission of both the majoroffences of rape and murder shows depravity of highest orderand would ex facie shock anyone’s conscience. The horrific mannerof killing the victim, by causing ghastly head injuries had beenDnothing less than beastly conduct of the appellant. However,gruesome nature of the action and the crime, by itself, may notbe decisive, particularly as regards the question of capitalpunishment. Thus, the other relevant factors need to becautiously examined, particularly those of the tests pertaining tothe criminal himself. [Para 50.2][848-C-D]E

6. The appellant was 28 years of age at the time ofcommission of crime and was having family comprising of his wife,an eight-year-old daughter and parents. He is not shown to becoming from any affluent background but, at the same time, it isalso not shown if he comes from a very poor socio-economicFbackground. Taken as a whole, these factors of the age, familyand socio-economic background of the appellant are not soclinching as to overwhelm and override the aggravating factors.Then, the pertinent question is as to whether there exists areasonable probability of reformation and rehabilitation of theGappellant? If the answer to this material question is in theaffirmative, it may have bearing upon the test to find if the casefalls in rarest of rare category. But, if there are factors whichoperate against affirmative answer to this question on theprobability of reformation and rehabilitation, the aggravatingcircumstances would assuredly outweigh the mitigatingH

circumstances warranting capital punishment. [Paras 50.3 and50.3.1][848-E-G]

circumstances warranting capital punishment. [Paras 50.3 and50.3.1][848-E-G]

7. The present case had been of extreme inhumane actsand actions of the appellant where, amongst other offending actsand actions, he (1) kidnapped the victim girl, who was only 7½years of age, who was even otherwise a mentally and physicallychallenged child, with betrayal of trust when the victim girl gotlured with confectionary items given by him; (2) brutally rapedthe victim girl, as noticeable from the gruesome injuries on andaround her private parts and as established by the medical officerswho conducted post-mortem; and (3) mercilessly killed the victimgirl by causing horrid injuries on her head, as established notonly by the doctors but also by the surrounding facts, includingbloodstains on the scene of crime, on the motorcycle, and on theclothing of the appellant at the time of his arrest. On the personalscore, even though the appellant was about 28 years of age andwas having the family of wife, a daughter who was also about 8years of age and aged parents, he was continuously involved incriminal activities. Even if the other past cases are left aside, hecommitted the crimes in question by using a stolen motorcycle.The tremors thrown by the appellant to shock anyone’s consciencewith his beastly conduct have not stopped even with this inhumanecrime and even after his conviction. [Paras 51 & 51.1][850-A-E]

8. In the present case, the further shocking and disturbingfactor is that even while in jail, the appellant’s conduct has notbeen free from blemish where, apart from quarrelling with otherinmate on 17.04.2015 and earning 7 days’ punishment, theappellant had been accused and convicted of the offence of yetanother murder, this time of a co-inmate of the jail, while joininghands with three other inmates. A perusal of the material placedon record makes it clear that the appellant, with three other jailinmates, has been convicted by the Trial Court of the offenceunder Section 302/34 IPC for murder of another jail inmate, whowas a Pakistani national in the high security cell of the prison;and that the appellant has been awarded the sentence ofimprisonment for life. Though it has been pointed out that anappeal against the said decision is pending and no comments on AB

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Athe merits of that case is made at all but, the appellant’s culpableconduct in jail compels the Court to ponder over the question asto whether it would be realistic to believe on the probability ofhis reformation and rehabilitation yet. [Paras 52 and 53][851-A- F]

B9. In the present case, where all the elements surroundingthe offence as also all the elements surrounding the offender cutacross the balance sheet of aggravating and mitigatingcircumstances, there is absolutely no reason to commute thesentence of death to any other sentence of lesser degree. Eventhe alternative of awarding the sentence of imprisonment for wholeCof the natural life with no remission does not appear justified inview of the nature of crimes committed by the appellant andlooking to his incorrigible conduct. The facts of the present case,taken as a whole, make it clear that it is unlikely that the appellant,if given an absolution, would not be capable of and would not beDinclined to commit such a crime again. Consequently, The Courtfind it to be a case of no other option but to confirm the deathsentence awarded to the appellant, for that being inevitable inthis particular case. These appeals are dismissed; conviction ofthe appellant of offences under Sections 363, 365, 376(2)(f), 302of the Indian Penal Code, 1860 and Section 6 of the Protection ofEChildren from Sexual Offences Act, 2012 is confirmed; and thesentences awarded to the appellant, including the death sentencefor the offence under Section 302 of the Indian Penal Code, 1860,are also confirmed. [Paras 57 and 60][853-E-F; 854-G]

Bachan Singh v. State of Punjab(1980) 2 SCC 684 –Ffollowed.

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116: [1985] 1 SCR 88 – relied on.

Viran Gyanlal Rajput v. State of Maharashtra(2019) 2GSCC 311;Babasaheb Maruti Kamble v. State ofMaharashtra(2019) 13 SCC 640;Nand Kishore v. Stateof Madhya Pradesh(2019) 16 SCC 278 : [ 2019]1 SCR 260 ;Central Bureau of Investigation v. SakruMahagu Binjewar & Ors.(2019) 20 SCC 102; MachhiSingh & Ors. v. State of Punjab(1983) 3 SCC 470 :

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[1983] 3 SCR 413; Santosh Kumar SatishbhushanBariyar v. State of Maharashtra(2009) 6 SCC 498 :[2009] 9 SCR 90; Shatrughna Baban Meshram v. Stateof Maharashtra(2021) 1 SCC 596 ; Kamta Tiwari v.State of M.P.(1996) 6 SCC 250 : [1996] Suppl. SCR 507;Vasanta Sampat Dupare v. State of Maharashtra(2015) 1 SCC 253 : [2014] 14 SCR 961 ; SwamyShraddananda (2) v. State of Karnataka(2008) 13 SCC767 : [2008] 11 SCR 93 ; Pappu v. The State of UttarPradeshCriminal Appeal Nos. 1097-1098 of 2018decided on 09.02.2022 2022 (3) SCALE 45; RajendraPrasad v. State of Uttar Pradesh(1979) 3 SCC 646:[1979] 3 SCR 78 ;Mithu v. State of Punjab(1983) 2SCC 277 : [1983] 2 SCR 690; Shankar KisanraoKhade v. State of Maharashtra(2013) 5 SCC 546 :[2013] 6 SCR 949 ; Union of India v. V. Sriharan AliasMuruganand Ors.(2016) 7 SCC 1 : [2015] 14 SCR 613;Rajendra Pralhadrao Wasnik v. State of Maharashtra(2019) 12 SCC 460 : [2018] 14 SCR 585; JagmohanSingh v. The State of U.P [1973] 2 SCR 541;Ravishankar Alias Baba Vishwakarma v. State ofMadhya Pradesh(2019) 9 SCC 689 : [2019]14 SCR 285; Shatrughna Baban Meshram v. State ofMaharashtra(2021) 1 SCC 596 ; Ashok DebbarmaAlias Achak Debbarma v. State of Tripura(2014) 4 SCC747: [2014] 4 SCR 287 andAnil @ Anthony ArikswamyJoseph v. State of Maharashtra2014 (4) SCC 69 :[2014] 3 SCR 34 – referred to.

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[2022] 16 S.C.R.

From the Judgment and Order dated 29.05.2015 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Criminal MurderReference No.3 of 2013 and D.B. Criminal Jail Appeal No. 854 of 2013.GA. Sirajudeen, Sr. Adv., Ms. Manjeet Chawla, Adv. for theAppellant.

Dr. Manish Singhvi, Sr. Adv., D. K. Devesh, Adv. for theRespondent.

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* Ed. Note: Pagination of the Table of Contents is as per the original judgment.

754SUPREME COURT REPORTS

APreliminary

Leave granted

2. These appeals are directed against the common judgment andorder dated 29.05.2015 in D.B. Criminal Murder Reference No. 3 of2013 and D.B. Criminal Jail Appeal No. 854 of 2013 whereby, the HighBCourt of Judicature for Rajasthan at Jodhpur has affirmed the judgmentof conviction dated 28.09.2013 and order of sentencing dated 01.10.2013in Sessions Case No. 12 of 2013, as passed by the Court of SpecialJudge, Protection of Children from Sexual Offences Cases, Rajsamand.

2.1. The High Court, while upholding conviction of the appellant ofCoffences punishable under Sections 363, 365, 376(2)(f), 302 of the IndianPenal Code, 1860[1] and Section 6 of the Protection of Children from SexualOffences Act, 2012[2], has confirmed the death sentence awarded to himby the Trial Court for the offence under Section 302 IPC.

2.2. In addition to the sentence of death for the offence underDSection 302 IPC, the appellant has been awarded the punishments ofimprisonment for a term of 7 years and fine of Rs. 25,000/- for theoffence under Section 363 IPC; imprisonment for a term of 7 years andfine of Rs. 25,000/- for the offence under Section 365 IPC; imprisonmentfor life and a fine of Rs. 50,000/- for the offence under Section 376(2)(f)

EIPC; and imprisonment for life and a fine of Rs. 1,00,000/- for the offenceunder Section 6 POCSO. While providing for default stipulations of furtherimprisonment in case of non-payment of fine amount, it has also beenprovided that the fine amount shall be given to the mother of the deceasedgirl as compensation.

F3. In these appeals, the conviction of the appellant as also thepunishment awarded to him, particularly the capital punishment, are underchallenge. Before dealing with the relevant aspects in necessary details,we may draw a brief sketch and outline of the matter.

3.1. The appellant has been accused of kidnapping a physicallyand mentally challenged seven-and-a-half-year-old girl in front of herGparents from their fruit and vegetable vending cart; having thereaftertaken her to a secluded place; having committed rape upon her; andhaving killed her by causing injuries on her head.

1 Hereinafter also referred to as ‘IPC’.H2 Hereinafter also referred to as ‘POCSO’.Hereinafter also referred to as ‘POCSO’.

2 Hereinafter also referred to as ‘POCSO’.Hereinafter also referred to as ‘POCSO’.

3.2. The prosecution case rested on circumstantial evidence tothe effect that the victim was lastly seen with the appellant when hetook her away; that the dead body of victim and other articles relatedwith the crime were recovered at the instance of the appellant; that theappellant failed to satisfactorily explain his whereabouts and hisknowledge of the location of dead body; and that the medical and otherscientific evidence was consistent with the prosecution case. Thus,according to the prosecution, the entire chain of events was completeand was conclusive of the guilt of the appellant, excluding any otherhypothesis. Per contra, the appellant asserted that he was falselyimplicated, though he did not adduce any evidence in defence.

3.3. In its judgment dated 28.09.2013, the Trial Court convictedthe appellant of the offences aforesaid with the findings that theprosecution had been able to substantiate the charges by proving beyonddoubt that the appellant kidnapped the victim girl, committed rape andthen murdered her and concealed the dead body. Then, on 01.10.2013,after having heard the accused-appellant and the prosecution on thequestion of sentence, the Trial Court found no reason to take any lenientview in the matter, particularly looking to the gruesome nature of crimeand thus, awarded varying punishments, including that of death sentenceunder Section 302 IPC.

3.4. The sentence of death was submitted for confirmation to theHigh Court in terms of Section 366 of the Code of Criminal Procedure,1973[3]. On the other hand, the accused-appellant preferred an appealagainst the judgment and order of the Trial Court. Both, the referencecase for confirmation of death sentence and the appeal preferred by theappellant, were considered together and the High Court, after findingthat each and every incriminating circumstance had clearly beenestablished, affirmed the conviction. As regards the question of sentence,the High Court, with reference to the nature of offence, in brutal rapeand murder of a seven-and-a-half-year-old mentally and physicallychallenged girl along with the calculated attempt to cover up the crime,found the present one to be ‘rarest of rare case’ and, accordingly,confirmed the punishments awarded to the appellant, including thesentence of death.

3 ‘CrPC’, for short.

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A3.5. In the present appeals, conviction of the appellant has beenquestioned essentially with the contentions that the investigation was notimpartial; that the trial was conducted in a hurried manner; that properlegal aid with a counsel of sufficient experience was not provided to theappellant; that probability of false implication cannot be ruled out sincethe name of the appellant was not stated in the missing person report;Band that blood sample might not have been collected from the motorcyclesince, admittedly, it was raining heavily at the relevant time. The sentenceawarded to the appellant has also been put to the question, essentiallywith the submissions that awarding of sentence both under IPC andPOCSO is not sustainable; and that the Trial Court as also the HighCCourt have not properly examined the mitigating factors existing in favourof the appellant, including the residual doubts in the weak chain ofcircumstances. It is also submitted that in the hurriedly conducted trial,the appellant was unable to effectively present his case; and that theyoung age of the appellant, his poor socio-economic background withfamily members being dependant on him, and the likelihood of reformationDdeserve due consideration as mitigating factors against capital punishment.

3.6. Per contra, it is contended on behalf of the respondent-Statethat the evidence of the witnesses related with the deceased is dulycorroborated by the testimony of independent witnesses; that name ofthe appellant finds mentioned in the missing person report as also in theEFIR; and that the forensic and medical evidence isconsistent with thecase of the prosecution. It is also submitted that the abhorrent nature ofcrime justifies awarding of death sentence in the present case, wherethe appellant kidnapped a minor girl who was not of sound physical andmental health; and committed brutal rape and murder. It has also beenFsubmitted that the subsequent conduct of the appellant in jail has beenmoreover questionable and he had killed another inmate with stone forwhich, he has been further convicted of the offence under Section 302/34 IPC; and this demonstrates that the appellant is a threat to the society.

3.7. Thus, two major points would arise for determination in these Gappeals; first, as to whether conviction of the appellant calls for anyinterference; and second, if conviction is maintained, as to whether thesentence of death awarded to the appellant deserves to be affirmed ordeserves to be substituted by any other sentence?

4. With the aforesaid outline, we may take note of the relevantHfactual and background aspects in necessary details.

Relevant factual and background aspects

5. The prosecution in the present case had its foundation in theoral information stated in the form of complaint by PW-1 Kamla on17.01.2013 at about 08:15 p.m. at Police Station Kankroli, DistrictRajsamand while being accompanied by her father PW-3 Madan Lal.The complainant alleged that earlier in the day, she was at her fruit-vegetable vending cart near R. K. Hospital with her husband PW-2Dharam Das and her father PW-3 Madan Lal; that at around 06:30p.m., Manoj Singh, who earlier lived in the nearby Housing Board Colony,came to her cart on a motorcycle, purchased fruits and gave chocolatesto her 8-year-old mentally challenged daughter K[4] and left; that hereturned to the cart after about 10 minutes, placed her daughter K on hismotorcycle and proceeded towards Somnath Chauraha; and that attemptswere made to chase him but he was not found. It was also stated by thecomplainant that she could not note the registration number of themotorcycle but the same was of sky-blue colour. The complainant alsodescribed the features and attire of her daughter and alleged that ManojSingh had kidnapped her daughter.

5.1. The contents of aforesaid oral complaint were reduced inwriting (Ex. P-1) by PW-19 Nand Lal, who was the Officer-in-chargeof Police Station Kankroli at the relevant time (as the Station HouseOfficer[5] PW-20 Ganesh Nath was away) and, accordingly, FIR No. 16of 2013 (Ex. P-2) came to be registered for the offence under Section363 IPC.

5.2. The said PW-19 Nand Lal immediately commencedinvestigation and recorded the statements of informant Kamla as also ofher father Madan Lal; informed the SHO; transmitted messages forNakabandi; and also carried out unsuccessful search at the HousingBoard Colony and other places. Thereafter, the SHO - PW-20 GaneshNath - took over investigation and recorded the statement of DharamDas, father of the victim girl; and in view of the allegations, added theoffence under Section 365 IPC.

4 Having regard to the nature of case, the name of victim has been omitted in thenarrations and extractions and at all other places in this judgment; and is substituted bythe expression ‘K’. For clarification, it may also be stated that the name of victim girlhas been mentioned differently and with alias at different places. But her identity isotherwise not in dispute and we have retained the substituted expression ‘K’ at everyplace, irrespective of any of the alternative names appearing.5 ‘SHO’, for short.

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A5.3. All the proceedings aforesaid took place until midnight of17.01.2013. The SHO, thereafter, proceeded in search of the victim andthe offender while taking the said Madan Lal and Dharam Das withhim. Ultimately, the accused-appellant was found at the Old Bus Stand,Kankroli, at about 2 a.m., who divulged his name and particulars asManoj Pratap Singh son of Surendra Pratap Singh Rajput, resident ofBBasantpur, Police Station Gugli, District Maharajganj, Uttar Pradesh.He was taken to Police Station Kankroli, was arrested, and his clothescarrying bloodstains were seized.

5.4. It has been the case of prosecution that on being questioned,the appellant stated that he had killed the girl whom he kidnapped nearCR. K. Hospital and her dead body was lying near Kamal Talai, which hecould get recovered. The information so furnished by the appellant wasrecorded (Ex. P-40); and the body of the deceased was recovered ataround 3:15 a.m. from a patari by the bridge at Kamal Talai as per thedisclosure of the appellant.D5.5. In view of the recovery of the dead body of K, the offenceunder Section 302 IPC was added for investigation. The SHO preparedthe necessary memos and reports and sent the dead body for post-mortemexamination. In view of the post-mortem report indicating rape with thevictim, the offence under Section 376(2)(f) was also added. The SHOalso got the accused-appellant examined in relation to the injuries on hisEbody. In the meantime, investigation was transferred to the Circle Officer,Rajsamand PW-25 Umesh Ojha. According to prosecution, the accused-appellant divulged more information on 19.01.2013 about the location ofmotorcycle used in the crime as also the place of committing the crimeand the place where clothing of the deceased was lying. This informationFwas reduced in writing (Ex. P-48) and in pursuance thereof, motorcyclebearing registration number RJ30 3M 5944 was recovered; thebloodstains on the motorcycle were collected; the frock-like-skirt of thedeceased was recovered; the place of incident was identified; andbloodstained soil as also control soil were collected and sealed. Further,the Investigating Officer got the accused-appellant medically examinedGfor sexual potency and his blood sample was also collected. The collectedarticles/samples were sent for Forensic Science Laboratory[6] examination.The Investigating Officer further collected the certificates relating tothe date of birth of the victim as also the certificates concerning hermental and physical disablement.

H6 ‘FSL’, for short.

H6 ‘FSL’, for short.

5.6. The Investigating Officer also recorded the statements ofwitnesses who had allegedly seen the accused-appellant taking the victimgirl on his motorcycle. Apart from other witnesses, PW-12 Ranjeet Singh,the salesman of a liquor shop, stated that the accused-appellant came tohis shop at about 6:30 p.m. with a girl sitting on the motorcycle, purchaseda bottle of beer and also quarrelled regarding the price. As per the contentsof charge-sheet, the Investigating Officer also found, after carrying outbackground verification, that the accused-appellant had been involved ina few other criminal cases. Significantly, it was found that the saidmotorcycle bearing registration No. RJ30 3M 5944 was stolen fromNathdwara on 14.01.2013 for which, an FIR bearing No. 39 of 2013 hadalready been registered at Police Station Nathdwara for offence underSection 379 IPC.

5.7. In the post-mortem examination, the Medical Board foundvarying injuries on the dead body of the victim, including those on headand on private parts. The Medical Board opined that the cause of deathwas head injury and that the deceased had been subjected to ante-mortemrape.

5.8. After other processes of investigation, charge-sheet was filedagainst the appellant on 02.02.2013 and the case was committed to theCourt of Sessions. At the request of the accused-appellant, legal aidwas provided to him from the District Legal Services Authority and theCourt heard the matter for framing of charge only after appointment ofa legal aid counsel. The appellant was charged of the offences underSections 363, 365, 376(2)(f) and 302 IPC and Section 6 POCSO. Theappellant pleaded not guilty and claimed trial.

The Evidence

6. In trial, the prosecution examined as many as 25 witnesses andproduced 52 documents. In view of the contentions raised and issuesinvolved, we may take note of the salient features of testimonies of materialwitness as also relevant documentary evidence in requisite details[7].

7 It may be indicated that the depositions and substantial part of the relevant documentsin the original record as also the judgment of the Trial Court are in Hindi language. Oneset of translations of the depositions has been supplied by the High Court and anotherset of translations has been placed on record by the respondent-State with its replyaffidavit. We have scanned through the record with the assistance of learned counsel forthe parties; and the extracts in this judgment are with reference to the translationsavailable on record and also, as far as feasible, near to the meaning of the text in original.

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7. There had been several non-official witnesses, including theparents and grandfather of the victim girl child and other persons whohad testified to the factum of kidnapping of the victim girl by the appellantand who had also been the part of investigation proceedings.

7.1. PW-1 Kamla, mother of the deceased-child, deposed on theBbasic and primary facts of this case in her examination-in-chief as under: -

“The incident is of 17.1.2013 at 6.30 p.m. I use to place myfruits and vegetables cart outside R.K. Hospital Rajsamand andhence, I was there. My father Madan Lal and my husbandDharamdas were also present there. At that time accused ManojPratap Singh, present in Court, came to my cart to buy fruits.Name of my daughter is K who is 8 years old. Accused ManojPratap Singh, present in the Court, gave my daughter kurkure andchocolate on which we told him not to do so but he gave thesearticles to my daughter and left. After 10-15 minutes accusedManoj Pratap Singh again came and took my daughter onmotorcycle towards Somnath Chouraha. At that time my fatherMadan Lal and husband Dharam Das followed accused but theycould not find him. Motorcycle was of sky-blue colour. I had notseen the number of motorcycle. At that time my daughter K waswearing a red kurta, pink colour jacket and black legging. Thecolour of my daughter was fair and height 4 feet. We went topolice station. At that time my father also went along with me andwe gave a report in the police station.

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The report is Exhibit P-1 on which A to B are my signatures.FIR is Exhibit P-2 on which A to B are my signatures.

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Then my father and my husband went along with police tosearch my daughter. I was sitting where my lorry was near R.K.Hospital Rajsamand. In the night at 12.30 we came to know thataccused Manoj Pratap Singh had been found. Then we were calledat the police station. Accused Manoj Pratap Singh took my husbandand father to Kamal Talai where dead body of my daughter Kwas found. Accused Manoj Pratap Singh was residing at HousingBoard and sometimes came to us to buy vegetables; therefore, Icould identify him. Accused Manoj Pratap Singh took my daughterand killed her.”

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7.1.1. On being cross-examined, this witness stated as under: - “At that time, accused Manoj Pratap Singh was wearing browncoloured jacket. On that day, we lodged a missing report of K. Itis true that my daughter K was mentally retarded. It is wrong tosay that my daughter had been missing once or twice before thisincident. It is wrong to say that my daughter used to go here andthere without informing me. I do not know where accused ManojPratap Singh used to work. It is correct to say that I did not raiseany alarm when accused took my daughter because at that timethere was nobody nearby. I do not know the time of death of mydaughter. We went to the police station in the evening at 7.45p.m. The accused took away my daughter at 6.30 p.m. The policestation is located at a distance of about 7 km from the place ofincident. We hired an auto to the police station and it took about30-45 minutes. We lodged missing report of my daughter at thepolice station. It is true that at the time of lodging the missingreport, we did not mention the name of accused Manoj PratapSingh.”

7.1.2. The aforesaid deposition of PW-1 Kamla was recorded on05.04.2013. At that point of time, clothing of the deceased had been withthe FSL and the same were received later in the Trial Court. Theprosecution, after completion of other evidence, moved an applicationunder Section 311 CrPC for further examination of this witness PW-1Kamla, for the purpose of identification of the clothes of deceased. Thisapplication was duly contested by the learned counsel for the accused-appellant with the submissions that such recalling of the witness wouldbe allowing the prosecution to fill up the lacunae in its case. However,the Trial Court, by its considered order dated 26.08.2013, accepted thesaid application looking to its purpose and while indicating that the accusedwould nevertheless have the opportunity of cross-examination. Thiswitness PW-1 Kamla was, accordingly, again examined on 04.09.2013where she stated about the attire of her daughter when she was kidnappedby the accused-appellant and duly identified Article No. 1, being theleggy (lower) as also Article No. 7, being the kurta (frock) of her daughterK.

7.2. PW-2 Dharam Das, father of the deceased girl, corroboratedthe testimony of PW-1 Kamla and stated that the appellant came andtook their daughter. He also stated that he was present when the appellant A

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Awas arrested from Kankroli Bus Stand, when the appellant made adisclosure statement at the police station, and when the body of hisdaughter was recovered at the instance of the appellant. This witnessalso testified to various proceedings of recoveries and seizures andidentified his signatures on various memos like that of site inspection,arrest of the appellant, recovery of the dead body, its panchayatnamaBetc. This witness further testified that his daughter was 8 years of ageand was mentally retarded; and exhibited the relevant documents in thatregard, being Ex. P-11 to P-14. This witness was also thoroughly cross-examined where he stated, inter alia, as under: - “I am hawker of fruits and vegetables. On the day of incident,I was at the cart. That time I was selling vegetables to customers.That time accused Manoj Pratap Singh was the customer whobought fruits and went. It is wrong that thereafter accused ManojPratap did not come to the cart. That time it was drizzling,therefore none else was there. It is wrong that there were somemore carts near my carts; other carts were away from my cart. Ido not know the names of other cart owners. There is a milkman’sshop, which is away from my lorry. There are some carts of snacksbut due to cold weather and rain fall, there was no cart. We wereabout to go home after some time, but accused Manoj PratapSingh abducted and took away my daughter. He lured by givingchocolate to my daughter. It is wrong that I do not know accusedManoj Pratap Singh. He used to come to my cart. It is wrong thatmy daughter went with accused with her consent, but she wasabducted by accused Manoj Pratap Singh. It is true that K wentwith the accused Manoj Pratap Singh on being lured by chocolate.I stopped my daughter but as she was feebleminded and so, didnot stop. It is true that at the time the accused abducted and tookaway my daughter, nobody was there. That time accused ManojPratap Singh was wearing check shirt and jacket. My daughterwas not wearing any footwear. On 17.1.2013 at night signaturewas taken on memo Ex. P-3. Then said, signature was taken onanother day. While signature was taken nobody was with me.Then said, my father-in-law was also with me. My signature wastaken on Ext. P-3 at police station. Then said signature was takenat Kamal Talai. Signature was taken at different times which I donot remember. The police officials did not read over and explainwhat was written on the document. Then said that they read over C

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and explained the contents but do not remember the same today.I am illiterate, I can only sign therefore, I do not know the contentsof memo Ex. P-4. It is wrong that when we went to the policestation, accused Manoj Pratap Singh was sitting in the policestation. I had said that he was sitting at bus stand. Accused ManojPratap Singh was arrested on the same night. It is wrong thatpolice officials did not seize clothes in front of me. The samewere seized in the night of 17.1.2013. I do not know what waswritten on jacket of accused Manoj Pratap Singh. My daughter’sdead body was found at Taledi Kamal Talai. Dead body was lyingat the bridge. Bruises were found on head and all other parts ofbody of my daughter. It is wrong that injuries were not found onthe legs. It is wrong that police official took my signature on memoat police station. Signature was taken at different places such aspolice station and house. It is true that Ex. P-12 was releasedafter the incident. It is true that certificate Ex. P-14 was alsoreleased after the incident.”

7.3. Father of the informant, PW-3 Madan Lal, also corroboratedthe testimony of PW-1 Kamla and PW-2 Dharam Das as regardskidnapping of the victim girl by the appellant, arrest of the appellant, hisdisclosure statement at the police station, and the subsequent recoveryof the body of the victim girl at the instance of the appellant. He alsodeposed regarding the memos of arrest, seizure, recoveries, andpanchayatnama, and identified his signatures on the memos Ex. P-5 toEx. P-8. We may usefully extract the relevant part of statement madeby this witness in his cross-examination as follows: - “…..At about 6:30 p.m., I reached the place of incident andstood there. Accused Manoj Pratap Singh came to buy vegetablesjust after me and thereafter some more customers came. About15 feet away from my son-in-law’s cart, there were some morecarts. Saras Milk Diary and Ayurvedic medicine shop is also there.Due to rainfall and storm, there was nobody. That time accusedManoj Pratap Singh bought fruits and vegetable, gave chocolateto the baby girl and went. Then after 10-15 minutes he cameback at 6:30 p.m. and immediately took the child on his motorcycleand went away. Since the child was feebleminded, she used to sitwith anybody. We were attending the customers. It is wrong thatI have not seen the accused abducting the child and the customersinformed about the abduction. Somnath Choraha is approximately ABC

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3-4 km away from the place of incident. Baby girl’s dead bodywas found at Kamal Talai bridge. I do not know about the directionof Kamal Talai from the place of incident. I could not see theaccused Manoj Pratap Singh. Then we went to the police post.We went to Bandiyabada police post where missing report waslodged that the accused Manoj Pratap Singh took away the child.Because we knew the name of Manoj Pratap Singh, we gave hisname in the report. I do not know the name of father of accusedManoj Pratap Singh. We went to search accused Manoj PratapSingh because the child was with him. We reached police stationat about 7:00- 8:00 p.m. Two police Jeeps came out of the policestation, one moved towards R. K. Hospital and another movedtowards bus stand. In one of the Jeep, my daughter Kamla andsome police officials went towards R. K. Hospital. In anotherJeep, Dharam Das, some of the police officials went towards busstand. I was sitting on the motorcycle of my colleague Manilal.Then we searched Dhoinda and various other places in jeep butwe were unable to find anyone, so we returned to the police stationand in second round, we went towards bus stand. In the firstinstance we went to Dhoinda via R K; it is wrong that we wentvia Kamal Talai road, instead we went via bypass. We met accusedManoj Pratap Singh present in the court when we went to busstand in the second round. Accused Manoj Pratap Singh waswearing jacket and jeans and at that time it was raining lightly.Accused Manoj Pratap Singh was standing near the water kiosk.Nobody was near him. Firstly, the police saw the accused ManojPratap Singh with bloodstains on his clothes.….Accused Manojwas brought to police station in jeep and upon enquiry he disclosedthat the child had been left at Kamal Talai bridge. On one side ofKamal Talai bridge there was a house whose name I do notremember and on the other side was a cremation ground. Ex. P-3 Site Plan of the place of incident was prepared at 7:00 a.m. AtKamal Talai, I signed at two or three places… It is true that, Ihave not seen anyone killing my granddaughter K.”

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7.4. PW-5 Maniraj Singh has been an independent witness to thekidnapping of the victim girl, as also to the inquest report. He stated inhis examination-in-chief all the essential facts in corroboration of thestatements above-noted. He also testified to the inquest report, seizureHmemo and other memos concerning delivery of dead body, site plan of MANOJ PRATAP SINGH v. THE STATE OF RAJASTHAN[DINESH MAHESHWARI, J.]

Kamal Talai and site plan of the place of kidnapping. In his cross-examination, this witness stated, inter alia, as under: -

“….The place of Incident is 200 to 300 feet away from my office.On the day of incident other carts were open. I do not rememberthe name of carts which were open. I know deceased K. It iswrong that I did not see K when she was abducted. That time wedid not know that accused Manoj Pratap Singh is abducting thechild; therefore we did not prevent him from doing so. It is wrongthat K willingly sat on the motorcycle of the accused, instead theaccused caught her and made her sit in front seat of his motorcycle.I did not know that accused is abducting the child; therefore I didnot stop him. It is correct that at that time other persons were alsostanding at the fruit cart. It is correct that other persons whowere standing at the fruit cart did not stop him. It is possible thatin my police statement, I have stated that the colour of themotorcycle was sky blue but in my statement the colour of themotorcycle has been written as green. It is correct that I am offduty at 5:00 p.m. It is true that I have motorcycle, and I am usingit to go to my office. It is correct that at that time I did not try tofollow accused Manoj Pratap Singh because my motorcycle wasparked at some distance. I do not know about employment ofaccused Manoj Pratap Singh. I know accused Manoj Pratap Singhas I used to see him at that place for past two to four months. I donot have any special identification of accused Manoj Pratap Singh.It is wrong that someone dictated me the name of accused ManojPratap Singh. The place of Incident is opposite to the place fromwhere the dead body of K was recovered. Accused Manoj PratapSingh took away K towards Somnath Choraha which is in anotherdirection. There were injuries on right eye below eyebrows andbehind the head above the neck of the deceased K…. It is wrongthat my signature was taken on all the memos at the same time.Then said whatever memos were prepared were signed by himafter reading. I do not remember the colour of the clothes that theaccused Manoj Pratap Singh was wearing at the time of incident.”

7.5. PW-17 Dinesh Bhatia had been another witness to thekidnapping of the deceased. He is brother of PW-2 Dharam Das, andhas a tea stall behind the cart of PW-1 Kamla. He too corroborated thetestimonies of PW-1 Kamla, PW-2 Dharam Das, PW-3 Madan Lal andPW-5 Maniraj Singh.

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A7.6. One more independent witness, in regard to the fact that thedeceased girl was last seen with the appellant, had been PW-12 RanjeetSingh. He was the salesman at a liquor shop, where the appellant stoppedto purchase beer immediately after taking the victim girl on hismotorcycle. This witness stated in his examination-in-chief that theappellant came to his shop with an eight-year-old girl sitting on hisBmotorcycle, purchased a bottle of beer, and even quarrelled as regardsthe price. The relevant portion of this testimony would read as under: - “I work as a salesman at Salampura Wine Shop. This shop isowned by Bansi Lal Mewada, resident of Sardargarh. On17.01.2013, at 6.30 p.m. in the evening, I was at the liquor shop.CAt that time, the accused Manoj Pratap Singh, who is present inthe court, came on motorcycle. A girl of about eight years wassitting in front of his motorcycle. The accused Manoj Pratap Singhcame to the liquor shop and he asked for a bottle of beer. I gavehim a bottle of beer and asked for eighty rupees. He was havingDshortage of twenty rupees. He quarrelled and fought with me.Then he gave twenty rupees, took the bottle of beer and wentaway on motorcycle. At that time the child was sitting with himon the motorcycle. Next day I came to know that accused ManojPratap Singh raped and killed the child.”

E7.6.1. In his cross-examination, this witness PW-12 Ranjeet Singhstated as under: -

“Police came to my shop on 18th and made enquiries. On thesame day, they took my statement. I work alone on the SalampuraWine Shop. At first he did not gave twenty rupees but thereafterhe gave it. The fact of giving twenty rupees has not been writtenFin the police statement. It was a sky-blue coloured passionmotorcycle. I do not know the registration number of themotorcycle. I do not remember the colour of the clothes thataccused Manoj Pratap Singh, who is present in the court, waswearing on that day. Accused Manoj Pratap Singh, who is presentGin the court, went towards Housing Board on his motorcycle. Idid not see accused Manoj Pratap Singh raping or killing the child.I heard about it on the next day.”

7.7. PW-6 Khemchand, who is the brother of Dharam Das,identified his signatures on panchayatnama (Ex. P-8), site plans (Ex.HP-3 and Ex. P-4), memo of seizure of clothes (Ex. P-9), and memo of A

handing over the dead body to Dharam Das (Ex. P-10). PW-4 NarendraSingh was also a witness to panchayatmana and he too identified hissignatures. PW-7 Kuldeep Singh and PW-8 Ajay Singh had been thewitnesses to various proceedings in the investigation including seizure ofthe motorcycle (Ex. P-15), collection of blood samples from the tank,pedal and cylinder of the motorcycle (Ex. P-16); recovery of the frockof the deceased which was smeared with blood (Ex. P-17); collection ofsoil sample carrying bloodstains (Ex. P-18); preparation of site plan ofthe place of occurrence and memo of inspection (Ex. P-20 and Ex. P-21); and memos of further inspection of the motorcycle and the place ofoccurrence (Ex. P-22 and Ex. P-23). They duly testified to theproceedings conducted in their presence and to their signatures on therelevant memos.

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8. The medical, scientific and other cognate evidence in this mattercould be broadly divided into four parts: first being the post-mortem reportof the dead body of victim girl and depositions of the members of MedicalBoard who carried out post-mortem; second being the evidenceconcerning medical examination of the accused-appellant; third beingthe evidence concerning age and disabilities of the victim girl; and fourthbeing the report of the Forensic Science Laboratory, particularly on DNAmatching.

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8.1. In the post-mortem report (Ex. P-35), the nature and extentof the injuries on the dead body of the victim came to be stated, interalia, in the following terms: - E

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II CRANIUM & SPINAL CORD

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Note: - The Spinal canal need not be examined unless anyindication of disease or injury exists.

1. Scalp, Skull and vertebrae 2. Membranes 3. Brain and SpinalCord

(1) Lacerated wound of 5 X 1cm in between 2 eyebrows.

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(2) There was (fracture) of frontal bone below the wound.

(3) Hematoma on occipital region of 5 X 5 cm.

(4) Multiple haemorrhages large in size (extra & subdural) in frontaltemporoparietal & Occipital regions)

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A11. Organs generation: External and Internal

(1) Hymen completely torned.

(2) Vagina torned upto unijunction of lower 2/3[rd]& upper 1/3[rd]posteriorly & laterally on both side.

B(3) II° Perineal tear.

(4) Vault was intact.

(5) Blood showing on external genital regions & on medial &anterior sides of thighs.

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EXTERNAL INJURIES UNDER HEADING I

1) Multiple abrasions & bruises on forehead.

2) Lacerated wound of 5x1cm in between both eyebrows.

D3) Hematoma in preauricular area of 10x8cm right side.

4) Bruises all around the left ear and on pinna.

5) Bruise of 5x3 cm below left mandible & below lower lip of 2x1cm.

E6) Multiple abrasions on both cheeks.

7) Multiple abrasions on both sides & front of neck.

8) Multiple abrasions & bruises on front, back top of shoulders ofboth sides.

9) Multiple abrasions on front & back chest, specially on prominentFbony areas.

10) Multiple abrasions on supra pubic region extruding up to bothiliac fossa.

11) Multiple abrasions on upper anterior and lateral parts of bothGthighs.

12) Abrasions of 7x5 cm on lateral side of right knee joint.

13) Multiple abrasions on & around left knee joint.”

8.2. The members of Medical Board comprising of three medicalofficers pointed out in the post-mortem report that all the injuries wereH

fresh and of the duration within 16-18 hours of examination. They statedtheir remarks in the following terms: - “REMARKS BY MEDICAL OFFICER

In the opinion of Medical Board, cause of death is Head injury.

Ante mortem rape done.”

8.3. PW-14 Dr. Manju Purohit, who was working as Gynaecologist,R. K. Hospital, Rajsamand at the relevant time and was a member ofthe Medical Board, testified to the aforesaid post-mortem report and tothe steps taken by the Medical Board in collecting, sealing and deliveringvarious samples/swabs. This witness was not only cross-examined onbehalf of the accused-appellant, but was also posed questions by theCourt and was cross-examined yet further. The relevant part of hertestimony in cross-examinations and Court questioning could be usefullyextracted as under: - “Generally, after six hours of death, rigor mortis starts in abody but it also depends upon the weather condition. It is wrongto say that contraction was found in the body. All the externalinjuries mentioned in Ex. P-35 post-mortem report cannot besustained together by falling from motorcycle. Injuries below neck,jaw and vagina cannot be sustained after falling from a motorcycle.It is wrong to say that the injuries could be sustained due to dupattastuck on the neck. It is correct that at the time of examination,human semen was not found on her body. It is correct that humansemen was also not found on the outer surface of vagina. It iscorrect that on Ex. P-36 the certificate and post-mortem reportnumber is blank.

QUESTION BY COURT: -

Q. What is your expert medical opinion after conducting externaland internal examination of the injuries on the body and afteranalysing the entire circumstances and condition of the body?

A. In my expert opinion, the eight year old innocent girl had beenbrutally and inhumanly raped and on objecting, the person whoraped her behaved in an inhuman and cruel manner as a result ofwhich, she sustained different simple and grievous injuries due towhich she died. Laceration of the vagina of the deceased showsthat she was brutally raped in an inhuman manner.

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770SUPREME COURT REPORTS

[2022] 16 S.C.R.

ACROSS EXAMINATION: - ADVOCATE FOR THEACCUSED SHRI B.K. BAIRWA.

The cause of death was injury caused on the head”

8.4. PW-15 Dr. Kailash Chand as also PW-21 Dr. Chetna Vaishnavhad been the other members of the Medical Board that carried out post-Bmortem examination and they corroborated the testimony of PW-14 onall the material particulars. PW-21 Dr. Chetna Vaishnav, also stated inher examination-in-chief that after examination, the Medical Board wasof the opinion that ‘the deceased was subjected to brutal rape andher death was caused’. This witness further testified to the physicalCexamination of the accused-appellant after his arrest, when she foundabrasions on his right knee and made such an entry on the application ofthe Investigating Officer (Ex. P-41). The relevant parts of her testimonyin cross-examination would read as under: -

“…. It is wrong that the entire injury on the body of the deceasedDcan occur after falling from motorcycle. It is correct that tracesof sperm were not found on the body of the deceased but we tookthe samples from vagina of the deceased for examination of thisfact..…It is wrong that all the injuries on the body of the deceasedwere self-caused but some of the injuries on the body of theEdeceased may be self-caused. It is correct that in Ex. P 35, fromX to Y, it has not been mentioned in the opinion regarding deaththat which of the specific injury sustained on which part of thehead resulted in death but in the opinion of medical board, multipleinjuries were found on the head of the deceased which collectivelyresulted in death of the deceased. The said injuries can be sustainedFby blunt weapon or by ramming the head on stone. It is correctthat in this context, there is no opinion of the medical boardavailable on Ex. P35 post-mortem report. Signature of PMO isfrom G to H on Ex. P-41 and, date is of 20.01.2013 and time is11:40 a.m. It is wrong that Ex P-41 Letter was given onG20.01.2013. I had examined the accused on 19.01.2013 at 12:00p.m. It seems that PMO has mistakenly mentioned the date onEx. P-41 from G to H. It is wrong that Ex. P-41 was given on20th….”

8.5. As regards the medical procedures conducted on the questionHof sexual capability of the appellant and collection of his blood sample, PW-22 Dr. Satish Singhal, the Medical Officer, R. K. Hospital,Rajsamand testified to his report (Ex. P-43) to the effect that there wasnothing to suggest that the appellant was not capable of doing sexualintercourse. This witness also testified to the factum of collection ofblood sample of the appellant after his consent (Ex. P-44) and to theforwarding letter for the Chief Chemical Examiner of the ForensicScience Laboratory (Ex. P-45). Nothing substantial is available in hiscross-examination except that the details of procedure carried out byhim were not mentioned in Ex. P-43.

8.6. As regards age of the deceased and her mental and physicaldisabilities, the prosecution led documentary evidence in support, beingthe Medical Board’s Certificate dated 04.03.2010 on permanent disability(Ex. P-11), where it was noted that the deceased K suffered from spasticpalsy with 70% permanent disability; Progress Report (Ex. P-13) issuedby Jagriti Vidyalaya, a special school for children with mental disabilities,along with a Certificate (Ex. P-12) issued by the same school, whichstated that the child had an IQ of 50%. Another Certificate fromGovernment Primary School, Gadriyawas Dhoinda (Ex. P-14) was alsoproduced. The said Certificates (Exs. P-12 to P-14) gave her date ofbirth as 09.07.2005. PW-18 Dr. Narendra Paliwal proved the saidCertificate Ex. P-11. The relevant part of his deposition in the cross-examination would read as under: - “It is correct that in Ex.P-11 certificate, the age of K is notmentioned and identification mark is also not mentioned.….It iscorrect that in Ex. P-11, neither there is signature nor thumbimpression of K.….It is correct that in issuance of this certificatethere was no neurologist in the board. I had issued the saidcertificate for physical disability and not for any neurologicalexamination. It is correct that the said certificate is related toorthopaedics. It is wrong to say that the muscles could tear in thisdisease.”

8.7. It is also noticed that by way of a communication dated22.01.2013 (Ex.- 52), the later Investigating Officer PW-25 Umesh Ojhasought medical opinion/comments regarding the nature of disablementof deceased K with reference to the said certificate dated 04.03.2010(Ex. P-11) whereupon, the Medical Officer made his endorsement inthe following words: - A

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A“As per the certificate issued, her cordination movements of limbswhich are controlled by brain were disturbed and as such shewas physically and mentally challenged child.”

8.8. We may also usefully extract the relevant parts of the reportof DNA examination carried out by the State Forensic ScienceBLaboratory, Rajasthan, Jaipur (that was drawn on 08.04.2013 and cameto be marked as Ex. P-51), which would read as under: - “DNA was extracted from all the samples except exhibit No.7(Control swab), 9 (Blood smeared soil) and 10 (Control Soil). DNAprofiles were prepared by using Microsatellite loci of AmpFISTR®CIdentifiler® Plus. Data was analysed by GeneMapper ID-X®Software. Blood samples were consumed during examination.

RESULT OF EXAMINATION

(1). Same Female DNA profile was obtained from the ExhibitDNo. 1 (Coat), 2 (Pant), 3 (Shirt), 5 (Pajami), 6 (Blood from MotorCycle), 8 (Frock), 12 (Vaginal Swab), 13 (Vaginal Smear) andExhibit No. 14 (Blood sample of K).

2. Male DNA profile was obtained from Exhibit No. 4 (underwear)which is matching with the DNA profile of Exhibit No. 11 (BloodEsample of Manoj Pratap Singh)

CONCLUSION

The DNA test performed on the exhibits is sufficient to concludethat the DNA profile obtained from Exhibit No.1 (Coat), 2 (Pant),3 (Shirt), 5 (Pajami), 6 (Blood from Motor Cycle), 8 (Frock), 12F(Vagina Swab), 13 (Vaginal Smear) is matching with the DNAprofile of Exhibit No. 14 (Blood sample of K).”

9. The evidence of a few official witnesses related with the processof investigation may also be noticed in requisite details.

G9.1. PW-19 Nand Lal was the second in command at Police Station,Kankroli at the relevant time. This witness testified to the facts aboutlodging of report and handing over investigation to PW-20 SHO upon hisarrival at the police station. He identified the signatures of PW-1 Kamlaand PW-3 Madan Lal as also his own signature on the report Ex. P-1and the FIR Ex. P-2.H

9.2. The testimony of PW-20 Ganesh Nath, SHO is pertinent sincethe appellant was arrested by him; the first disclosure statement wasmade by the appellant to him; and the initial processes related withinvestigation were carried out by him. The relevant extracts of hisexamination-in-chief, particularly those relating to the arrest and medicalexamination of the appellant as also of discoveries on the information ofthe appellant, would read as under: - “….I started the search proceedings alongwith grandfatherand father and brought Manoj Pratap Singh from Kankaroli busstand to the police station and after making necessary enquiry,arrested him vide Ex. P-5 …..At the time when Manoj PratapSingh was arrested, he was wearing coat, jeans, shirt andunderwear among which, bloodstains were found on his coat, Jeansand underwear, which were seized vide memo Ex. P-6. Thenthey were sealed and stamped…...

In custody, accused Manoj Pratap Singh voluntarily disclosedon 18.01.2013 at 2:30 a.m. to me, the SHO, that he could getrecovered the dead body of the girl whom he abducted from R.K.Hospital, Rajsamand, killed her and disposed her body at KamalTalai. The said information was written according to the statementof the accused and the memo has been marked as Ex. P-40 onwhich signature of accused Manoj Pratap Singh is from A to Bwho was read over and explained the contents of memo markedas Ex. P-40 who understood the contents and imposed his signaturefrom A to B and my signature is from C to D. After writing thesaid information, we went to the place in government vehicle asdisclosed by accused Manoj Pratap Singh alongwith witnessesMadan Lal and Dharam Raj who were present there. He askedus to stop and get down from the vehicle at the place whereKamal Talai Road meets at 50 feet road. He got down from thevehicle and walking ahead, pointed towards dead body of a girl onthe railing of a bridge and said that this is the girl whom he hadabducted. Dharam Raj who was also accompanying saw the bodyand exclaimed that she is her daughter K. Since it was dark, Iinspected the body in torch light and found that the girl was dead.There was black colour underwear on her body and rest of thebody was completely nude. Multiple abrasions were present onthe body of the girl and there was injury on her eye. Since it was AB

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night, I prepared memo of recovery Ex. P-7 on which signatureof accused Manoj Pratap Singh is from E to F, signature of witnessDharam Raj is from A to B, signature of witness Madan Lal isfrom C to D and my signature is from G to H…..Thereafter, atdawn, Panchayatnama of girl K was prepared after calling theattesting witnesses wherein all the particulars and the injuriespresent on the entire body were mentioned; the same were readover to Panchas who, after looking at all the circumstances, opinedthat the death of the girl K was the result of injuries caused to herbody. Memo of Panchayatnama of the body is Ex. P-8…..Thereafter, the dead body was seized and kept in the mortuary ofR.K. Hospital, Rajsamand and report was sent to the board forpost-mortem. Post-mortem was conducted by medical board andafter post-mortem black coloured lower (pajami) which the girlwas wearing at the time of incident and on which bloodstainswere found, was seized, kept in a bag, sealed, stamped and markedas Ex. P-9….

…..In custody, I got the injuries on the body of accused ManojPratap Singh examined for which, I gave the requisition to themedical officer of R.K. Hospital, Rajsamand, the copy of whichis Ex. P-41 on which, my signature is from A to B. Thereupon, theaccused was physically examined by Dr. Chetna, who recordedthe description of injuries on Ex. P-41 which is C to D and signatureof doctor is from E to F. Thereafter, following the order of thehigher officials, the investigation was handed over to the circleofficer Shri Umesh Ojha…..”

9.2.1. The relevant portion of the cross-examination of PW-20Ganesh Nath could also be usefully reproduced as under: -

“It is wrong that on the same day Kamla handed over a missingreport to Nand Lalji. It is correct that I was not present whenKamla came to the police station. My staffs, Dharam Raj andMadan Lal were accompanying me when search proceedingswere conducted. When I received the information at 8:20 p.m., Iwas with my staffs. Thereafter, I came to the police station andwent in search alongwith Dharam Raj and Madan Lal. I cameback to the police station after 2-3 hours and went in searchalongwith Dharam Raj and Madan Lal. Accused Manoj PratapSingh was arrested by me. I caught accused Manoj Pratap Singh from old bus stand at Kankaroli, took him to the police station andafter making enquiries, I arrested him. I prepared the arrest memoafter arresting the accused at the police station, therefore, in Ex.P-5 the place of arrest is blank but at the top the place of arresthas been mentioned as Kankaroli police station. It is correct thatI seized the clothes of the accused Manoj Pratap Singh andthereafter provided him other clothes to wear. I cannot say as towhether at that time accused Manoj Pratap Singh was underinfluence of any intoxicant but he has not consumed liquor and hedid not appear to be under influence of the same…. After receivinginformation under section 27, I went to the place of incident whereaccused Manoj Pratap Singh got down from the vehicle and hewas walking in front of us. There was a house in front of theplace where dead body of K was found and remaining areas wereplots and agricultural lands. It is correct that the dead body wasfound at Kamal Talai road where 50 feet road meets. It is correctthat I did not enquire the people of the said house or people nearthat house because further investigation was done Deputy Sir.Statement of accused Manoj Pratap Singh under Section 27 waswritten word by word. It is correct that accused Manoj PratapSingh is educated. Accused has stated that he is educated tillclass 10. It is correct that it was dark when the body of K wasrecovered. It was 3:00 a.m. …..It is correct that at the time ofarrest, there was injury on the knee of accused Manoj PratapSingh. It is correct that there was no injury on the face and chestof accused Manoj Pratap Singh….It is wrong that I have arrestedany wrong person or there was any pressure on me.”

9.2.2. The disclosure statement made by the appellant to PW-20SHO on 18.01.2013 has been marked as Ex. P-40, and its contentswould read as under: - “I have murdered the girl whom I had kidnapped from R.K.Hospital. Her dead-body is lying towards Kamal Talai, which Ican get recovered.”

9.3. The testimony of PW-25 Umesh Ojha, who was the CircleOfficer, Rajsamand and who carried out the later part of investigation inthis case is equally pertinent. The appellant allegedly disclosed the placeof incident, the location of motorcycle and the location of frock to thiswitness, who carried out the necessary seizures and follow-up AB

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Aproceedings. This Investigating Officer also collected other evidenceconcerning the appellant, including his sexual capability test report andhis antecedents. The relevant extracts of his testimony would read asunder[8]: -

“…..On 19.01.2013 accused Manoj Pratap Singh present inBcourt today voluntarily informed me that he could show the placewhere motorcycle which was used in the incident had been left,he can accompany us to the place and the nearby places wherehe raped the deceased and where her blood soaked kurta hadbeen left. The said information Ex. P-48 was recorded word byword as stated by the accused and thereafter read over to him….CAs per the information obtained, we went to the place of incidentfor investigation and recovery alongwith the summoned witnessedKuldeep Singh and Ajay Singh and accused Manoj Pratap Singh.As per the information of accused Manoj Pratap Singh we reachednear canal ahead of cremation ground on the way to DhoindaDfrom 50 feet road where the accused Manoj Pratap Singh askedus to stop; hence we stopped the vehicle and got down. Thenaccused Manoj Pratap Singh pointed towards east and said that itwas the place where he raped the deceased and left themotorcycle. …. 250 meters away from where we got down,accused Manoj Pratap Singh… who was walking in front of us,Estopped and pointed towards the place where he left themotorcycle. We saw the motorcycle lying near the bundle of sticks.The side of the motorcycle where there is silencer was touchingthe ground, head light of motorcycle was towards wall of field,motorcycle was blood smeared and its number was RJ 30 3MF5944. Accused Manoj Pratap Singh stated that on this verymotorcycle he brought the girl here. The said motorcycle wasused in the incident and therefore, it was seized and memo preparedwhich is Ex. P-15… Motorcycle’s right side back indicator wasbroken and hanging; and its petrol tank, silencer, engine body, andrim of backside tyre were smeared with blood. Since it was notGpossible to send the motorcycle to FSL for examination of the 8 It may be indicated that this witness PW-25 also asserted about the appellant havingmade other disclosures like the place where he smashed the head of the victim girl onhard gravelly surface (stone) upon her resistance; and having smashed her foreheadbetween silencer and engine of motorcycle etc. These parts of his testimony as alsoHother parts of formal nature have been omitted from extraction.

bloodstains on it, specimen sample of blood was taken on gauzeof white cloth and control sample was also taken; and they wereplaced in separate plastic containers and were sealed. The samplewas marked D and control was marked D 1 for which a separatememo was prepared which is Ex. P-16.…

Thereafter accused Manoj Pratap Singh… walkedapproximately 3 metres from where motorcycle was lying andindicated by his hand and said that there is frock-type skirt, whichthe deceased girl was wearing; on a close look, the skirt was ofred colour with light yellow dots; the skirt was torn and there wasblood on its lower side..…

…Thereafter…Manoj Pratap Singh…walked to another sideof way approximately 2.5 metres, showed by hand, and said thatat this place I raped the deceased girl, That place was lookinghard on which scratch marks and bloodstains were there. Inpresence of witnesses, blood sample and control sample weretaken separately for test by FSL…

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During investigation I wrote a letter to Medical Officer R.K.Hospital about DNA test and sexual capability test of accusedManoj Pratap Singh which is Exhibit P–42 on which G to H is mysignature. On this medical officer gave the sexual capability reportExhibit P– 43; carbon copy of identity and consent form is ExhibitP–44 and carbon copy of forwarding the blood sample for DNAtest is Exhibit P–45…

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During investigation I had obtained the disability certificationof K by the Board of Doctors, which is Exhibit P–11 on which I toJ is my endorsement and K to L is my signature. I also obtainedthe mental retardation certificate of deceased K from ShriDwarkesh Aksham Seva Sansthan which is Exhibit P–12 on whichC to D is my endorsement, E to F is my signature and A to Bsignature of the grandfather of the deceased Madan and G to His signature of Principal Jagriti Special School, Kankroli. Theprogress report of Jagriti Special School, Kakroli is Exhibit P–13on which C to D is my endorsement and E to F is my signature.The certificate of date of birth and school entrance form of Govt.

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Primary School, Gadriyawas is Exhibit P–14 on which C to D ismy endorsement and E to F is my signature, G to H is signatureand seal of the Principal Govt. Primary School, GadriyawasDohinda…

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… The First Information Report registered at Police StationNathdwara regarding theft of the motorcycle number RJ 30 3M5944, used by the accused Manoj Pratap Singh in the presentincident, is Exhibit P-46, carrying my endorsement at C to D andmy signature at E to F.

A written requisition sent to the SHO, P.S. Shambhupra DistrictChittorgarh for obtaining the previous conviction record of theaccused Manoj Pratap Singh and his report is Exhibit P-47 onwhich G to H is my endorsement and I to J is my signature. Alongwith this letter, the SHO P.S. Shambhupra District Chittorgarhhad forwarded the true copy of FIR No. 69/11 registered againstaccused Manoj Pratap Singh with the charge-sheet, which wastaken on the file. Similarly, FIR No. 428/12 and charge-sheet thereinagainst the accused Manoj Pratap Singh at P.S. Rajnagar, DistrictRajsamand was taken on record. The copies of FIR and charge-sheet in case Nos. 79/12 and 78/12 registered at P.S. Kankroli,District Rajsamand were also taken on record…”

9.3.1. We may also usefully extract the relevant parts of thestatement made by this witness in cross-examination as under: - “It is true that from where motorcycle was seized was an openarea. It is also true that from where deceased’s frock was seizedwas an open area. It is wrong that cremation ground was nearthe place of incident but was far away from there. It is wrongthat public movement is there at the place of incident. 50 feetroad is far away from the place of incident. It is wrong that nearcanal public way is situated rather, trails type way is available formovement towards fields. It is true that information provided bythe accused under section 27 which is Ex. P-48 was written byme. It is true that accused Manoj Pratap is educated. The accusedManoj Pratap Singh was only signed on Ex. P-48. It is wrong thathouses are constructed nearby the place of incident. Fields beingsituated near the place of incident and nobody being there, the

information about fields was obtained from the area patvari andthe owners were asked about the incident but they did not haveany information and therefore their statement not recorded….Itis true that there was one house near the place where the victim’sdead body was lying, which was a little away. It is true that theperson who was residing in that house had no knowledge aboutthe incident that took place in the night and therefore, his statementwas not recorded. It is true that the bridge where the victim’sdead body was found might be of public movement, but as theincident happened during night therefore, there would have beenno public movement at that time….. I can’t say that there hadbeen rainfall at the time of incident. I can’t say that there hadbeen rainfall on second day of incident….It is true that informationrelated to incident as given by the accused was recorded word toword. It is wrong that at that time accused told that he is innocent.It is wrong that seized article were safely not sent to the FSL fortest. It is true that no criminal case was lodged against the accusedat Police Station Gugali, District Maharajganj, (Uttar Pradesh)which is endorsed on the back of memo Ex. P-31. It is wrong thatI was under pressure and carried out wrong investigation. It iswrong that there had been demonstrations in the city when theaccused was not found; rather, after his arrest there had beendemonstrations against him. It is wrong that I investigated thecase only on the basis of circumstantial evidence, ratherinvestigated with recording of the statements of independentwitnesses present at the time of kidnapping. It is true that no onehad seen the accused raping and killing the deceased.”

9.3.2. The disclosure statement made by the accused-appellantto PW-25 on 19.01.2013 has been marked as Ex. P-48 and its contentswould read as under: - “I can show the place where the motorcycle used by me at thetime of incident is lying and the nearby place where blood smearedkurta of the deceased is lying and the place where I committedrape on her, which is also nearby.”

9.4. PW-23 Ramdev Regar, Sub-Inspector of Police, deposedregarding the fact that a report about theft of motorcycle bearingregistration No. RJ30 3M 5944 was lodged at Police Station Nathdwaraon 14.01.2013. This witness stated as under: - AB

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A“On 14.01.2013, I was posted as Sub Inspector at NathdwaraPolice Station. On that day complainant Ramesh Chand son ofPurushottam, resident of Sundercha presented a written reportthat Hero Honda Passion Plus motorcycle of his master GirishjiGarg, bearing registration No. RJ 30 3AM 5994 was parked nearNaniji ka Bag, Nathdwara, which had been stolen by an unknownBperson. On the basis of the said report, Case No 39/13 underSection 379 IPC was registered and investigation was handedover to ASI Peshawar Khan. On the basis of the said report, Iregistered the FIR, the certified photocopy whereof is 46 and mysignature is from A to B.”

C9.4.1. This witness PW-23 deposed in his cross-examination asunder: - “In this matter, I have not seized the said motorcycle. It is correctthat in the instant matter, I have not obtained the RC or otherdocuments of the motorcycle.”D

9.5. There had been other official witnesses who carried outdifferent tasks in the aid of investigation, like PW-10, PW-11, PW-13,PW-16; and another official witness PW-24, who filed the charge-sheet.Their evidence, essentially of formal nature, need not be dilated upon.

E10. The appellant in his statement under Section 313 CrPC statedthat he had been falsely implicated in the case. The appellant, however,did not lead any evidence in his defence.

TheTrial Court found the appellant guilty and awarded deathsentence F

11. The Trial Court, in its judgment of conviction dated 28.09.2013,accepted the prosecution case and, while rejecting the contentions urgedin defence, held that the chain of circumstances was duly established bythe prosecution, bringing home the guilt of the accused-appellant.

Deceased aged 7 ½ years, mentally and physically challenged G

12. The Trial Court, in the first place, took up for considerationthe questions relating to the age and alleged disablement of the deceased.The Trial Court held, with reference to the Medical Board’s Certificateon Permanent Disability dated 04.03.2010 (Ex. P-11) and the statementof PW-18 Dr. Narendra Paliwal, that the deceased was suffering fromHspastic palsy because of which, the aggregate percentage of her permanent disability was 70%. The doctor also specified that the medicalcondition of the deceased girl was due to imbalance between themovements of limbs and brain. The Court also referred to the statementsof PW-1 Kamla, PW-2 Dharam Das, PW-3 Madan Lal, PW-17 DineshBhatia and PW-5 Maniraj Singh, who testified to the fact that the deceasedwas a mentally and physically challenged child. In fact, in the Certificatedated 20.01.2013 issued by the Jagriti Vidyalaya, a special school forchildren with disabilities (Ex. P-12), it was also stated that the deceasedwas a mentally retarded child with 50% IQ.

12.1. As regards the age, with reference to the aforesaid Certificate(Ex. P-12) as also the Progress Report of the same school for the session2009-10 (Ex. P-13) and the Certificate from the Government PrimarySchool, Gardiyawas Dohinda (Ex. P-14), the Trial Court found that thedate of birth of the deceased K was 09.07.2005 and hence, she wasabout 7½ years of age on the date of incident, i.e., 17.01.2013. The TrialCourt also observed that the witnesses stated her age at 8 years only intheir approximation.

12.2. Thus, the Trial Court concluded that the deceased was 7½years of age at the time of incident and she was suffering from 70%physical disablement and was also mentally retarded.

Deceased last seen with the appellant

13. The Trial Court, thereafter, took up for consideration thequestion of kidnapping of the deceased girl and referred to the testimonyof PW-1 Kamla, PW-2 Dharam Das, PW-3 Madan Lal, PW-17 DineshBhatia as also that of PW-12 Ranjeet Singh and PW-5 Maniraj and heldproved the facts that the appellant kidnapped the deceased from thelawful guardianship of her parents with intent to secretly and wronglyconfine her; and that the deceased was last seen with the appellant.

Discoveries on the information of appellant

14. Moving on with the chain of circumstances, the Trial Courtreferred to the facts emanating from the statements of PW-2 DharamDas and PW-3 Madan Lal that: a) the appellant was found at about 2:00a.m. at the bus stand with bloodstained clothes; b) the appellant disclosedthat the dead body of the victim was lying at Kamal Talai; and c) theappellant got recovered the dead body at Kamal Talai. The Trial Courtalso referred to the testimony of PW-20 Ganesh Nath as regards arrestof the appellant and the disclosure statement made by him (Ex. P-40)

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Awhereupon the dead body was recovered at Kamal Talai. Thus, theTrial Court held proved the basic facts that the appellant was arrestedafter about 7½ hours of his kidnapping the victim girl; the clothes wornby him were bloodstained, which were seized and sealed; and after about1½ hours of his arrest, the dead body of the victim girl was recovered atthe disclosure and information of the appellant.B

15. The Trial Court also found proved the factum of otherrecoveries at the instance of the appellant like that of motorcycle usedby him and the frock worn by the deceased, as duly established by theoral and documentary evidence adduced by the prosecution. It was alsoobserved by the Trial Court that the place of recoveries was such that itCwas only within the knowledge of the appellant.

Medical evidence

16. As regards the questions of rape and murder of the victim girl,the Trial Court made an elaborate reference to the post-mortem reportD(Ex. P-35) and the depositions of PW-14 Dr. Manju Purohit and PW-21Dr. Chetna Vaishnav, particularly concerning the nature of injuries andthe expert opinion on the manner of causing them and, inter alia, foundas under: - “…as per her expert opinion, forcible rape has been committedEon 8 year old innocent girl in extremely cruel and heinous mannerand on resisting the rape, she was treated with extreme crueltyand mercilessly due to which, several simple and grave injurieswere caused on the person of deceased and she died due to suchinjuries. The witness has also expressed that vagina of thedeceased was ruptured leading to the conclusion that rape wasFcommitted on her in a beastly and merciless manner. The saidstatements of witnesses were confirmed by post-mortem report(Exhibit – P35) prepared by the Medical Board.”

Report of FSL

17. The Trial Court also referred to the other evidence on recordGestablishing the collection of samples and proper forwarding of the sameto the FSL. The Trial Court further referred to the linking evidence,including the additional statement of PW-1 Kamla, as regards the clothingof her deceased daughter. Thereafter, the Trial Court referred to theFSL report (Ex. P-51) wherein it was found that the DNA profile ofHblood collected from the person and clothing of the deceased matched MANOJ PRATAP SINGH v. THE STATE OF RAJASTHAN[DINESH MAHESHWARI, J.]

with the DNA profile of blood found on the coat, pant and shirt of theappellant as also that found on the motorcycle. The facts established bythis substantial piece of evidence and the conclusions deducible therefromwere found by the Trial Court as follows: - “Thus from the said D.N.A. test, the D.N.A. profile obtainedfrom the coat (Exhibit No.1), pant (Exhibit No.2) and shirt (ExhibitNo.3) and from the Pajami of the prosecutrix (Exhibit No.5), bloodsample taken from the motorcycle of the accused (Exhibit No.6),frock of the prosecutrix (Exhibit No.8), vaginal swab of theprosecutrix (Exhibit No.12) and vaginal smear (Exhibit No.13)are matching with D.N.A. profile of blood sample obtained fromthe prosecutrix (Exhibit No.14). Meaning thereby, blood found oncoat, pant and shirt worn by the accused at the time of incident,which were seized at the time of arrest and that found on themotorcycle used by the accused at the time of incident, is matchingwith D.N.A. profile of blood sample of the prosecutrix. From thiscogent circumstantial evidence, the only conclusion is that withintention to secretly and wrongfully confine the prosecutrix, onlythe accused kidnapped her and took her to a secluded place andcommitted rape on her and murdered her by causing injuries.”

Defence contentions rejected

18. The assertion of the appellant that he was falsely implicatedin the matter was not accepted by the Trial Court, since he did neitherprovide any reason for his false implication nor made any such suggestionto the prosecution witnesses. The Trial Court also dealt with everysubmission made on behalf of the appellant by the defence counsel andrejected the same, as noticed infra.

18.1. It was contended that as per PW-1 Kamla, she had notstated the name of appellant at the time of giving the initial report. Withreference to the timing of report as also the statement of PW-3 MadanLal, the Trial Court found that such a contention was totally baselessand a particular line in the statement of PW-1 Kamla occurred onlybecause of her ignorance about the meaning of words. It was also foundthat in the report (Ex. P-1), the particulars were clearly stated that theappellant was previously known to them. Another contention that theparents and other relatives of the deceased did not raise alarm at the A

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Atime of kidnapping of the girl was also found baseless with reference tothe facts of the case and the statement of PW-1 Kamla. Even this wasargued that the FIR was lodged after some delay but the Court found,with reference to the time of kidnapping and the distance of police station,that there was no such delay in lodging the FIR. It was further arguedthat there was discrepancy in the colour of motorcycle as stated by PW-B1 Kamla (sky-blue colour) and as stated by PW-17 Dinesh Bhatia (greencolour). The Court found that the recovered motorcycle was green incolour and bloodstains of deceased were found on the same. Thus, suchdiscrepancy of colour was of no effect. Another contention was that theplace of arrest was not stated in Ex. P-5. The Trial Court found that theCplace of arrest was mentioned as Police Station Kankroli and it was notof any effect on the substance of the prosecution case. Similarly, theattempts on the part of the defence to suggest some minor contradictions,about how many persons were available at the time of kidnapping of thechild or whether she was wearing slippers or not and the contention thatthe main witnesses were all interested persons, were rejected by theDTrial Court, being of no substance. Further, the questions sought to beraised about the presence of witnesses of seizure and recovery etc.were also found baseless and were rejected. An argument was alsoraised that the place of recovery of the dead body, i.e., Kamal Talai, was on the public way where anybody could leave the dead body. TheETrial Court rejected this contention too, with reference to the fact thatimmediately after the incident, the dead body was recovered at theinstance of the appellant and he had failed to show any other reason ofhis knowledge about the location of dead body. It was also argued thatthe house of one Manoj was shown near the place of incident but he Fwas not examined and that the registration certificate of the motorcyclewas also not produced. The Trial Court found that the Manoj was noteven remotely related with the matter nor was the owner of themotorcycle. It was also observed that, in any case, such minorshortcomings in the investigation were of no assistance to the accused.It was further argued on behalf of the appellant that PW-12 RanjeetGSingh had not stated the registration number of the motorcycle; thataccording to PW-1 Kamla, she came to know at about 12:30 in the nightthat the appellant was found but the time of arrest was shown at 2:00a.m.; that no other injury except one on knee was found on the body ofthe appellant; that the blood group was not established; and that PW-25HUmesh Ojha stated the colour of the skirt of deceased as red with yellow

dots but PW-1 Kamla stated that the dots were of white colour. Allthese hair-splitting arguments were noticed and rejected by the TrialCourt for being of no substance and having no material bearing on thecogent and convincing evidence led by the prosecution. Even theadmissibility of FSL report was also questioned but this contention wasrejected by the Trial Court with reference to Section 293 CrPC.

18.2. The aforementioned consideration of the contentions urgedon behalf of the appellant by the Trial Court is to indicate the nature ofextensive arguments advanced on behalf of the accused-appellant in theTrial Court. As shall be noticed hereafter later, this feature coupled within-depth cross-examination of each and every prosecution witness, is ofmaterial bearing on one of the contentions urged before us about wantof proper legal assistance to the appellant in the Trial Court.

Chain of circumstances complete

19. Since there were no witnesses to the crime of rape and murderand it had been a case of circumstantial evidence, after the above-noteddiscussion, the Trial Court held that prosecution had been successful inestablishing the chain of circumstances linking the appellant with thecrime in such a manner that no other conclusion except that of his guiltwas possible. The Court held, inter alia, as under: - “On the basis of aforesaid discussion and analysis, theprosecution has been fully successful in proving beyond doubtthat near about 6.30 p.m. on 17.01.2013, the accused withpremeditated criminal mentality kidnapped, with intention tosecretly and wrongfully confine the 7½ years old 70 per centmentally disabled, innocent, helpless, meek handicapped daughterof complainant Kamla, by making her to sit on motorcycle in broadday light in presence of her parents, grandfather and uncle, takingunfair advantage of her natural abnormality, physical and mentaldisability and by tempting her with food stuff, from Housing Boardwithin jurisdiction of Police Station Kankroli, District- Rajsamand;and took her to a lonely place near crematorium on 50 feet roadtowards Dhoinda, in Kankroli with premeditated intention ofcommitting rape on her kidnapped her; and thereafter, in order toenhance his beastliness and inhumanity, he consumed beer andthen in a brutal manner, while scratching the body of an innocentgirl child, crossed the height of ignobility by committing rape onher in extremely heinous manner; and murdered here by causing A

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multiple simple and grave injuries on her body in extremely barbaricmanner. Moreover, it is also proved that the accused committedthe offence of aggravated penetrative sexual assault by causinggrievous hurt and bodily harm to the deceased while committingpenetrative sexual assault.

BTherefore, after aforesaid entire discussion, the prosecutionhas been found successful in proving the offence charged againstaccused Manoj Pratap Singh under Sections 363, 365, 376(2)(f),302 I.P.C. and under Section 6 Protection of Children from SexualOffences Act, 2012, beyond reasonable doubt. Hence, accusedManoj Pratap Singh is liable to be convicted for the offenceCpunishable under Sections 363, 365, 376(2)(f), 302 I.P.C. and underSection 6 Protection of Children from Sexual Offences Act, 2012.”

20. Thus, in the overall appreciation of the evidence on recordDand the surrounding factors, the Trial Court was satisfied that theprosecution had successfully substantiated its case beyond reasonabledoubt and accordingly, convicted the appellant of offences under Sections363, 365, 376(2)(f), 302 IPC and Section 6 POCSO by its judgmentdated 28.09.2013.

EDeath sentence by the Trial Court

21. After having recorded the conviction as aforesaid, the TrialCourt took up the matter three clear days later, i.e., on 01.10.2013 andheard the arguments on the question of sentencing. The burning questionbefore the Trial Court was about the punishment to be awarded for theFmajor offences of rape and murder of a seven-and-a-half-year-old girlchild.

21.1. Having heard learned Public Prosecutor for the State asalso learned amicuscuriae for the accused-appellant, the Trial Courttook note of the principles enunciated in various decisions of this Court;and examined the aggravating factors on record, particularly those relatingGto the gruesome nature of the crime as also the mitigating factors projectedon behalf of the accused-appellant that it was his first offence; that hewas 28 years of age; that he was a married person with an 8-year-olddaughter; and that his family including old parents was dependant onhim. Having examined all the relevant facts and factors, the Trial CourtHformed the opinion that a lenient view could not be taken looking to the nature of the crime; and, taking the case in ‘rarest of rare’ category,found it just and appropriate to award death sentence for the offenceunder Section 302 IPC. The Trial Court also awarded other punishments,as noticed hereinbefore.

21.2. A few of the relevant observations of the Trial Court withreference to the decisions of this Court and in its appreciation ofaggravating and mitigating circumstances before forming the opinionin favour of awarding death sentence could be usefully extracted asunder: - “It is true that in homicidal offence, life sentence is a rule anddeath sentence is an exception. Death sentence must be imposedonly when life imprisonment appears to be an altogether inadequatepunishment having regard to the relevant circumstances of thecrime. This point should also be considered whether there isanything abnormal to award death sentence in the offence forwhich life sentence could be awarded? Even after considering allthe important circumstances favouring an accused, thecircumstances of the offence should be such that there be nooption but to award death sentence. Death sentence should notbe awarded except in the most serious criminal cases. Beforechoosing the substitute of death sentence, the circumstances ofoffence and accused should be taken into consideration. Whenany helpless, innocent girl is murdered and the accused is in aposition to dominate her, then it will be proper to award him deathsentence. A Judge should prudently and carefully determine theproportional and justified punishment for the accomplishment ofthe objectives as per the sentencing provided by law for seriousoffences. If, without any provocation and with cool mind, a girl iskidnapped, raped and brutally murdered and the murder is soheinous which not only hurts judicial sensitivity but also shocksthe pure conscience of society, death sentence will be the onlyjustice in such a case.

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As it has been mentioned earlier that prosecution has clearlyproved against the accused with direct & circumstantial, cogent,conclusive, incontrovertible evidence that on 17.01.2013 at about6:30 p.m., accused Manoj Pratap Singh son of Surendra PratapSingh, caste Rajput, aged 28 years, resident of Basantpur, Police A

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Station Gugli, District Maharajganj (Uttar Pradesh) kidnapped a7½ year old 70% physically disabled, retarded, helpless, weak girlfrom the custody of her parents without their permission in broadday-light and committed rape on her in a brutal manner after takingher to a lonely place. During commission of rape, the accusedcaused multiple simple & grave injuries on the body of that helplessinnocent girl in a cruel manner. The injuries mentioned in the oralevidence of Medical Jurist and in post-mortem report (Exhibit P-35) were found on the body of deceased. Multiple abrasions,contusions and wounds were found on the head, ears, jaw, cheeks,around neck, both the shoulders, chest, back, around frontal partbelow umbilicus, thighs & knees of deceased. Hymen of vaginaof deceased was found to be having recent signs of ruptures; 2/3rd lower part of vagina of deceased and posterior and lateralside were found completely torn; the outer skin in between vaginaand anus of the deceased was completely torn; and blood clotswere found all around the vagina. On internal examination ofdeceased, multiple fractures were found on her frontal occipitaland tempo parietal regions due to the injuries inflicted on head.In reply to the questions asked by the Court, the Medical JuristDr. Manju Purohit (PW-14) has expressed her expert opinion asunder: - “As per my expert opinion, forcible, brutal and heinous rapewas committed with an 8 year old innocent girl and the deceasedresisted the rape and whosoever committed rape on her, hadbehaved in extremely brutal and heinous manner because ofwhich various simple and serious injuries were inflicted on thebody of the deceased and she succumbed to the injuries foundon her body. The vagina of deceased having been found intorn condition, the only inference is rape had been committedon her in heinous and brutal manner”.

No evidence is available on record in support of the argumentsadvanced on behalf of accused. Even if these statements ofaccused are taken to be true for the sake of arguments that he ismarried and father of 8 year old daughter and he is the only son ofhis old parents, then too, on the basis of such circumstances hedoes not deserve lenient view or sympathy. Rather in the case inhand, no such circumstances are present in favour of the accused on the basis of which it would be justified to have sympathy orleniency for him while passing order of sentence for thecommission of the charged offence.

In the aforesaid facts and circumstances, in my humble opinion,the accused committed rape on deceased heinously and brutallyat a lonely place after kidnapping her intentionally with cool mindwithout any provocation. Thereafter, in the same sequence, thedeceased has been brutally murdered by causing injuries on herbody in a very inhumane, merciless and heinous manner. The actof accused against humanity falls within the purview of the rarestof the rare case for being lowest, extreme, most brutal, mercilessand heinous murder case for which, it is obligatory to punish theaccused with death sentence for securing justice.”

High Court confirmed the death sentence awarded to theappellant

22. As noticed, this case came up before the High Court on twocounts, viz., the death sentence submitted for confirmation and the appealagainst conviction and sentence preferred by the appellant. The HighCourt reappreciated the material placed on record and, in its commonjudgment and order dated 29.05.2015, upheld the decision of the TrialCourt in convicting the appellant of the aforementioned offences andsentencing him to death for the offence under Section 302 IPC.

23. The High Court examined the statement of PW-1 Kamla,which had been corroborated by PW-2 Dharam Das, PW-3 Madan Laland PW-5 Maniraj Singh, to note that the appellant came to the fruit andvegetable stand and took the deceased on his motorcycle towardsSomnath Chauraha; and that despite people in the locality chasing themotorcycle, the appellant could not be located.

23.1. The High Court found that PW-6 Khem Chand had dulyproved Ex. P-3 (memo of inspection of place of incident and site map)and Ex. P-8 (panchayatnama of the dead body of the deceased); andthat he had accompanied PW-2 and PW-3 when body of the deceasedwas recovered pursuant to the disclosure statement of the appellant,who led them to the location of the body. The factum of recovery of themotorcycle used by the appellant and other articles was also found provedby the statements of PW-7 Kuldeep Singh and PW-8 Ajay Singh.

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A23.2. The High Court laid emphasis on the statements of PW-14Dr. Manju Purohit, PW-15 Dr. Kailash Chand and PW-21 Dr. ChetnaVaishnav as also on the post-mortem report (Ex. P-35) to find that thedeceased had been subjected to great cruelty at the time of commissionof the crimes of rape and murder. The High Court, thereafter, examinedthe FSL’s report on DNA Examination (Ex. P-51) to find that the samplesBof blood on the articles recovered from the appellant matched the samplesof the blood taken from the deceased. The findings of the High Court inthis regard could be reproduced as under: - “The D.N.A. Report which is Ex.P. 51 on the record, shows thatthe same D.N.A. of female profile, namely of the deceased wasCobtained from Ex.1 coat, Ex.2 pant, Ex.3 shirt, Ex.4 underwear.Also to be noted is the statement of the investigating officer thatwhen the accused was apprehended he had bloodstains on hisclothing and the same were sent for DNA examination. Thematching of the blood group gains signification in such aDcircumstance. The incriminating articles, namely, the clothes andthe blood group matching is an important circumstance showing”complicity of the appellant in the crime in question.

24. Having thus examined and analysed the evidence on record,the High Court found that the prosecution had been successful inEestablishing the chain of circumstances conclusively linking the appellantwith the crime, while ruling out any other hypothesis. The High Courtsummed up its findings and conclusion as follows: - “21. Taking all the evidence into account, we are of the opinionthat the circumstances which have been clearly established are:Fthat the appellant was seen taking the deceased on his motorcycle;that the appellant had led to discovery of the dead body of thedeceased, the place where he kept his motorcycle which hadbloodstains of the deceased on it; at his instance the stone smearedwith blood was recovered[9]; that the medical report clearly indicates G9 The High Court appears to have gathered an impression that some ‘stone’ was recoveredat the instance of the appellant with reference to the memo dated 21.01.2013 (Ex. P-23)and statements of PW-7 Kuldeep Singh and PW-8 Ajay Singh as also PW-25 UmeshOjha, where they indicated that the accused-appellant had shown the place of incidentand hard gravelly surface with stone whereupon did he smash the head of the victimwhile committing rape. It does not appear that any ‘stone’ was as such recovered andHseized. However, this aspect is not of material bearing on the substance of the matter.

about the injuries sustained by the deceased on her body; that theinjuries sustained on the private parts have been stated by thedoctor to have been caused by forcible sexual intercourse; thatthe chemical analysis report links the accused with the crime;that the appellant has not offered any explanation with regard tothe recovery made at his instance; other than a bald statementthat he was not guilty, the accused has not any evidence either todiscredit the prosecution witness or to establish his innocence:and that nothing has been stated in his examination under Section313 Cr.P.C that there was any justifiable reason to implicate himin the crime in question. Thus, we find that each of theincriminating circumstances has been clearly established and thechain of events are conclusive in nature to exclude any other kindof hypothesis, but the one proposed to be proved, and lead to adefinite conclusion that the crime was committed by the accused.

22. Therefore, finding no infirmity in the judgment under challenge,we affirm the judgment given by the learned trial Judge and dismissthe appeal filed by the accused Manoj Pratap Singh.

25. Having affirmed the conviction of the appellant, the High Courtproceeded to consider the question as to whether the death sentenceawarded to the appellant required any interference.

25.1. It was sought to be argued on behalf of the appellant beforethe High Court that the case did not fall under the rarest of rare category;that the mitigating circumstances operating in favour of the appellantshould be considered; and that a lenient view ought to be taken withregard to sentencing, since he was 28 years of age at the time ofcommission of the crime and had a family comprising of a minor daughter,his wife and his father dependent on him.

25.2. The High Court took note of various leading decisions whereinthis Court has enunciated the principles to be applied in the matters ofsentencing, particularly relating to the offences where death sentencecould also be awarded. The High Court took note of the facts of thepresent case involving the heinous crime of brutal rape and murder of ayoung girl, who was below 8 years of age and was suffering from physicaland mental disabilities. The High Court also observed that there was noelement of compassion on the part of the appellant, who brutally raped A

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Athe child and smashed her head; and that the conduct of the appellantwith brutal nature of the offence did not call for any leniency. The HighCourt further took note of the submissions made on behalf of the accused-appellant about his being a young person and having a family to supportbut observed that these were not the mitigating circumstances in thiscase which gives repulsions to the conscience of the Court and theBcommunity. Hence, the High Court found that the present case wasfalling in the category of rarest of rare and proceeded to confirm thedeath sentence awarded to the appellant while observing as under: -

“32. In the case in hand, there are no aggravating circumstances(sic) or mitigating circumstances put forth to award a lesserCpunishment than what has been awarded by the Sessions Court.The accused after giving a chocolate to a young girl aged 8 years,who not only was having permanent disability of 70% but alsohaving I.Q. of 50%, abducted her and took her away on amotorcycle. Thereafter, he committed a heinous crime of not onlyDbrutally raping her, but also hit her head against the silencer of themotorcycle as well as with her stone causing her death. It is evidentfrom the statement made by the doctor who had conducted thepostmortem that the young deceased tried to resist the rape butthere was no compassion shown at all. The plea raised by thelearned counsel appearing for the accused that leniency shouldEbe shown since the accused was a young man with a family,cannot be said to be a mitigating circumstance at all. The accusedafter brutally raping her, hit her head against the motorcycle andthen used a stone to smash her head and tried to flee that verynight itself. The heinous offence of brutal rape on a helpless youngFgirl followed by a cold-blooded murder and calculated attempt tocover-up the said incident shocks and repulses the conscience ofthis Court and the community.Placing reliance upon the settledprinciples as enumerated by the Apex Court in several judgments,this Court has no hesitation in holding that this case falls withinGthe category of rarest of rare cases and upholds the judgmentpassed by the Sessions Court. In our opinion, the judgment passedby the Sessions Court suffers from no error.”

33. Therefore, the D. B. Criminal Murder Reference No.3/2013preferred by the State of Rajasthan is allowed affirming thejudgment and order passed by the learned Sessions Judge dated H

MANOJ PRATAP SINGH v. THE STATE OF RAJASTHAN[DINESH MAHESHWARI, J.]

28.9.2013. The death sentence awarded is confirmed. D. B.Criminal Jail Appeal No. 854/2013 filed by the accused appellantManoj Pratap Singh is hereby dismissed.

Rival Submissions

26. Assailing the judgment and order aforesaid, Mr. A. Sirajudeen,learned senior counsel for the appellant has put forward a variety ofsubmissions while questioning the process of investigation as also themanner of conducting the trial; and has asserted that the appellant wasdenied a proper and adequate opportunity to defend himself. Learnedcounsel has also endeavoured to find faults or shortcomings in theevidence adduced by the prosecution; the main plank of submissionshad been that the prosecution case is based on a weak chain ofcircumstantial evidence and the appellant is entitled to the benefit of‘residual doubt’. The learned counsel has also questioned the sentenceawarded to the appellant with the submissions that in view of severalmitigating factors, it would not be justified to punish him with death.

26.1. Learned senior counsel for the appellant has strenuouslyargued that the investigation in this case had not been impartial and hasraised questions over investigation with the submissions that after findingthe appellant at the bus stand, the police along with the father of deceased(PW-2), took him directly to the police station, recorded his confessionand thereafter took him to the spot where the body of deceased wasfound, instead of enquiring from him the whereabouts of the deceased.Further, the unusual collecting of evidence against the appellant in relationto other cases and overt reliance on personal opinion of doctors aboutthe manner of commission of offence, establishes that the investigationwas not impartial, where final report was submitted within 12 days ofthe appellant’s arrest, even before receiving the DNA report.

26.2. Learned senior counsel has further contended that the trialwas conducted in a hurried manner, where reasonable time to preparefor facing charges was not afforded to the appellant and at least twomonths’ time should have been given for the purpose of perusal of finalreport. It has also been contended that the appellant was not given theopportunity to meet his family members after arrest nor was he givenproper opportunity to engage a counsel of his choice, thereby deprivinghim of his constitutional right guaranteed under Article 22(1) of the A

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AConstitution of India. According to the learned counsel, an inexperiencedcounsel was appointed in legal aid, who failed to have any meeting ordiscussion with appellant in prison in order to formulate a better versionof his defence in trial; and the manner of cross-examination of theprosecution witnesses shows the absence of preparation of the counseland his inexperience in conducting the defence.B

26.3. While assailing the findings against the appellant on the basisof the chain of circumstances, the learned senior counsel has referred tocertain aspects, which according to him, show the shortcomings andlacunae in the prosecution case. In this regard, learned counsel hassubmitted that the name of appellant was not mentioned in the missingCperson report initially filed in this matter, as admitted by PW-1 and PW-3, though the appellant was known to the family of the victim; and thesaid initial missing person report is not on record. These factors, accordingto the learned counsel, give rise to the possibility of the appellant beingnot the culprit. The learned counsel has further submitted that the doctorsDPW-14, PW-15 and PW-21 unjustifiably used the expressions “brutal”and “inhuman” in their statements though they were only expected todepose about the nature of injuries found on the body and the weapon/object likely to have caused said injuries. According to the learned counsel,absence of semen on the body of the victim as also in the vaginal swab operate against the theory of rape in this case. Yet further, learned counselEhas submitted that as per the account given by a number of witnessesincluding eye-witnesses, there was rain, drizzling and storm at the timeof occurrence and the motorcycle used for kidnapping was kept in openspace. In such a situation, even the possibility of bloodstains remainingon the metal surface of motorcycle is rare. Learned counsel for theFappellant has further argued that there is nothing on record to show thatthe girl was mentally retarded; that the witnesses have only deposedthat she was feeble minded and even the certificate issued from schoolto prove her mental caliber cannot be relied upon because the personwho issued such certificate was never examined.

G26.3.1. According to the learned senior counsel for the appellant,the aforesaid factors individually and cumulatively lead to the positionthat the present one is a case of weak chain of circumstances andconviction of the appellant remains unsustainable.

26.4. Again, with reference to the nature of evidence adduced inHthis matter and asserting it to be a case of weak chain of circumstances, the learned senior counsel has strenuously argued that in any case andat any rate, residual doubt remains about involvement of the appellant incommission of the crime and he is entitled to the benefit thereof.

26.4.1. In this line of submissions, learned senior counsel for theappellant has also endeavoured to argue that the injuries found on thebody of the deceased were only bruises and abrasions, apart from theinjury on the head; and in the context of the deposition of PW-21 that thedeath might have been caused as a result of rape, it could be deducedthat causing of death was not the intention of the appellant. According tothe learned counsel, only the knowledge of consequence of act may beattributed but residual doubt does exist about absolute certainty of theintention to commit the offence in a brutal manner.

26.5. Learned counsel has also submitted that the accused of anoffence of rape cannot be convicted under both POCSO and IPC as perSection 42 of POCSO. It can only be under any one of the enactmentsthat Court could impose maximum punishment provided therein and hence,life sentence awarded by the Trial Court for the offence under Section376 IPC as also under Section 6 POCSO is unsustainable in law.

27. As regards the question of sentence, learned senior counselfor the appellant has contended that even when the charge is provedbeyond reasonable doubt but is based on certain circumstances ratherthan absolute proof, the benefit of residual doubt ought to be given to theaccused and capital sentence should not be awarded. According to thelearned counsel, even if this case at all warrants conviction, it doesn’twarrant the punishment of death because it may be a rare case but, isnot rarest of rare.

27.1. Learned senior counsel for the appellant, while adverting tothe mitigating factors, has submitted that there is nothing on record toshow that the appellant has become a menace to the society or cannotbe reformed. It has also been highlighted that the appellant was onlyabout 28 years of age when the FIR was registered against him; that hecomes from a poor economic background; and that he has a family withwife, 8-year-old daughter and 70-year-old father to look after. Withreference to these factors and the overall circumstances, learned counselwould argue that the appellant does not deserve death and the sentenceas awarded in this matter deserves to be commuted to that ofimprisonment for life.

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A27.2. Learned senior counsel for the appellant, in support of hisplea against the death sentence, has referred to several decisions of thisCourt wherein death sentence was altered/commuted to other sentence,including those in Viran Gyanlal Rajput v. State of Maharashtra:(2019) 2 SCC 311; Babasaheb Maruti Kamble v. State ofMaharashtra: (2019) 13 SCC 640; Nand Kishore v. State of MadhyaBPradesh: (2019) 16 SCC 278; and Central Bureau of Investigationv. Sakru Mahagu Binjewar & Ors.: (2019) 20 SCC 102.

28. Per contra, Dr. Manish Singhvi, learned senior counselappearing for the respondent-State has duly opposed the submissionsmade on behalf of the appellant with reference to the evidence on recordCand the findings recorded by the Trial Court and the High Court.

28.1. Learned senior counsel for the respondent-State hascontended that the investigation has been carried out in the present matterwith due attention to necessary details; and there had not been anyshortcoming affecting the substance of the case. In relation to theDquestions of procedural safeguards in the trial and opportunity to theaccused-appellant to defend himself, learned counsel for the respondenthas submitted that the appellant never asked for a counsel of his choiceand it was through the legal aid that a defence counsel was appointed,who possessed sufficient experience of about 9 years. Moreover, theEcounsel so appointed made qualitative efforts to conduct the trial andexamination of witnesses with best of his ability, who rather deservesadmiration for the efforts made by him. Hence, it cannot be said that theaccused-appellant was deprived of proper legal assistance and properopportunity to defend himself.

F28.2. Learned senior counsel for the respondent would submitthat the evidence adduced by mother, father and maternal grandfatherof the deceased (PW-1, PW-2 and PW-3 respectively), is creditworthyand unimpeachable; and the same is duly corroborated by PW-5 ManirajSingh, PW-12 Ranjeet Singh and PW-17 Dinesh Bhatia, who wereindependent witnesses of the relevant facts, particularly those relatingGto the kidnapping of the victim girl from the vending cart of her parents.Thus, according to the learned counsel, the fact that the deceased waslast seen with the appellant is established beyond any doubt. In relationto the argument that the name of appellant was not mentioned in themissing person report, learned counsel for the respondent would submitHthat this contention is not correct inasmuch as the name of the appellant was indeed mentioned in the missing report (Ex. P-1) lodged by PW-1 at8:15 p.m., though it was mentioned as “Manoj Singh” instead of “ManojPratap Singh”; and the FIR (Ex. P-2), which was registered on the basisof the said report also carries the name of appellant. Learned counselfor the respondent would further submit that by way of the documentsavailable on record, i.e., Exs. P-11, P-12 and P-13 and the evidence ofPW-18 Dr. Narendra Paliwal, it is proved beyond doubt that the deceasedwas a mentally and physically disadvantaged child, who was also sufferingfrom spastic palsy, i.e., uncontrolled movement of muscles and joints.

28.3. Learned senior counsel for the respondent-State has referredto the extensive injuries pointed out in the post-mortem report (Ex. P-35) and has submitted that such injuries prove beyond any doubt that thedeceased was subjected to brutal rape and was murdered mercilessly,as noticeable from the injuries on the occipital and parietal region of thehead of the deceased and as concluded by the doctors of Medical Boardthat the she died due to the injuries on her head. Learned counsel hasalso strongly relied upon the FSL’s report on DNA Examination (Ex. P-51) to submit that the matching of DNA profile of the blood sampletaken from the body of the deceased with that of the blood samplestaken from clothing of the appellant as also with the blood samples takenfrom the motorcycle used in the crime, is a rather clinching piece ofevidence that leaves nothing to doubt that the brutal rape and murder ofthe deceased could only be attributed to the appellant.

29. Learned senior counsel for respondent has further submittedthat there was no infraction of the requirements of Section 235(2) CrPC,as a sufficient time gap of 3 days was observed by the Trial Courtbetween the date of conviction and the date of awarding death sentence,which too was awarded only after duly hearing the appellant, dulyappreciating all the material factors and circumstances, and duly recordingspecial reasons which take the present case into the rarest of rarecategory.

29.1. The learned senior counsel for the respondent, whilehighlighting the aggravating circumstances of this case, has submittedthat the victim was a feeble minded and physically challenged girl; andwhen the appellant was known to the victim, there was an element ofbetrayal of trust. The learned counsel would also refer to the fact thatthe victim girl was lured by way of first offering chocolates, to submitthat the entire modus operandi of the appellant was pre-meditated, AB

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Aleading to brutal rape and murder of the hapless girl. The learned counselhas further submitted that the extensive injuries on the private parts ofthe victim were caused in a most diabolical and barbaric manner, whichshows the ghastly nature of crime; and the medical expert evidence hasestablished that the deceased died due to the injuries caused on herhead. Thus, the appellant not only committed rape in a ghastly mannerBbut also clubbed the victim to death by brutal smashing of her head.According to the learned counsel, on the facts of this case, thecircumstances as referred on behalf of the appellant could hardly besaid to be sufficiently mitigating the aggravated crime committed by theappellant. Thus, there are no mitigating circumstances in this case andCnature of crime is such that it shocks the collective conscience of societyand shakes the very foundation of civilization; and in this case, awardingof death sentence is immensely justified.

29.2. Learned senior counsel for the respondent-State has citedvarious decisions in relation to the question concerning death sentenceDand the principles evolved by the Courts in that regard, including therequirement of special reasons and rarest of rare doctrine, as elucidatedin the case of Bachan Singhv. State of Punjab: (1980) 2 SCC 684;the requirement of balance sheet of aggravating and mitigatingcircumstances, as explained in the case of Machhi Singh & Ors. v.

State of Punjab: (1983) 3 SCC 470; and the crime and criminal test,Eas elaborated in Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra: (2009) 6 SCC 498.

29.3. As regards the contentions urged on behalf of the appellantinvoking the doctrine of ‘residual doubt’, learned senior counsel for therespondent-State has contended that our criminal jurisprudence recognisesFthe requirement of ‘proof beyond reasonable doubt’ to hold any accusedguilty; and any lingering doubt leads to the ‘benefit of doubt’ to theaccused. Thus, there ought not be any uncertainty in coming to theconclusion of guilt of the accused. According to the learned counsel, inthe face of such stringent requirements of proof beyond reasonable doubt,Gthere is no place for any ‘residual doubt’ after the finding of guilt andconsequential conviction of the accused. The learned counsel hascontended that the concept of ‘residual doubt’ has not been foundapplicable in our country; and has referred to the decision of this Courtin Shatrughna Baban Meshram v. State of Maharashtra: (2021) 1SCC 596.H

29.4. While supporting the death sentence in the present case,learned senior counsel for the respondent-State has submitted that therecurrent underlying principles are that in the cases of rape and murderof a girl child, if death occurs due to rape alone, then death sentence isnormally not awarded but, if rape is followed by separate act of murder,death sentence is countenanced, like the present case where, apart fromgruesome rape, the girl was done to death by causing horrific injuries onher head. According to the learned counsel, the present case is similarand akin to the cases where death sentence has been awarded andmaintained. In this regard, the learned counsel has particularly referredto the decision in Kamta Tiwari v. State of M.P.: (1996) 6 SCC 250 asalso two elaborate decisions in Vasanta Sampat Dupare v. State ofMaharashtra where, in the case of rape and murder of a four-year-oldgirl child, death sentence was affirmed by this Court while dismissingthe main appeals [reported as (2015) 1 SCC 253] and then, the reviewpetitions were also dismissed with the finding that the aggravatingcircumstances were outweighing the alleged mitigating circumstances[reported as (2017) 6 SCC 631].

29.5. Learned counsel for respondent has also submitted in thealternative that if at all death penalty is not affirmed by this Court, theappellant ought to remain behind the bars for the remainder of his lifewithout any kind of remission, as per the course adopted by this Court inthe case of Swamy Shraddananda (2) v. State of Karnataka: (2008)13 SCC 767.

30. Apart from the factors relating to the heinous nature of crimecommitted by the appellant, learned counsel for the respondent, in hiswritten submissions, has pointed out other startling facts leading to furtheraggravating circumstances in view of the conduct of the appellant post-conviction. These circumstances, as regards post-conviction conduct ofthe appellant, have been stated as under: - “B. Aggravating circumstances of the Criminal

a) Conduct of Criminal Post conviction whilst in jail(Committed another murder with stone):

i) On dated 17.04.2015 the detainee had quarrelled with anotherdetainee Meharajuddin son of Chiragmuddin in Ward No. 10,whereupon the detainee was awarded 07 days punishment.

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Aii) On dated 20.02.2019 the detainee had quarrelled along withother detainees in the T.V. room of the Higher Security Ward(Ward No. 10) constructed in the prison with detainee ShakarUlla @ Mohammed Hanif on account of watching TV andcommitted murder of detainee by assaulting with the stoneused to put over TV. Detainee Manoj Pratap Singh son ofBSurendra Pratap Singh has been convicted and sentenced tolife imprisonment by the learned Special Judge (Prevention ofSati) &Addl. Sessions Judge, Jaipur Metropolitan, Jaipur underSection 302/34 IPC. He’s a recidivist i.e. prove to killing and”people dangerous to society/jail inmates.

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30.1. The aforesaid factual aspects and circumstances relating topost-conviction conduct of the appellant did not surface earlier duringthe course of oral hearing and looking to their nature and impact, weplaced the matter for directions on 16.02.2022 and required filing of anDaffidavit of the authorised officer of the State, giving all the necessaryparticulars with the concerned proceedings/judgment, while supplyingadvance copy to the appellant in jail. We also permitted the appellant tofile response thereto.

30.2. Pursuant to the directions aforesaid, an affidavit of theESuperintendent of Central Jail, Jaipur has been filed with a copy of thejudgment and order dated 10.01.2020 passed by the Court of SpecialJudge (Prevention of Sati) and Additional Sessions Judge, JaipurMetropolitan in Sessions Case No. 204 of 2019 (11 of 2019), making outthat the appellant has been convicted of the offence punishable underFSection 302/34 IPC with three other inmates of Central Jail, Jaipur. Thisconviction came to be recorded after the said Trial Court found provedthe prosecution case that the accused persons (including the appellant)committed murder of another inmate of high security ward, namely,Shakar Ulla @ Mohammed Hanif, a Pakistani national who wasGundergoing sentence.

30.3. In response on behalf of the appellant to the facts above-stated, reference has been made to paragraph 40 of the said judgmentand order dated 10.01.2020 with the submissions that the allegations inthe said case had not been of any act by the appellant individually but inHa group; there was no eye-witness to the occurrence; the weapon used MANOJ PRATAP SINGH v. THE STATE OF RAJASTHAN[DINESH MAHESHWARI, J.]

was only a stone; and there was no evidence regarding specific overtact on the part of the appellant. It has also been submitted that the saidjudgment and order dated 10.01.2020 may not be taken into considerationby this Court because the appellant has already filed an appeal againstthe same, being Criminal Appeal (DB) No. 78 of 2020, which remainspending with the High Court. It has also been submitted that exceptsuch allegation of his involvement in the said case, overall conduct of theappellant is without any blemish; that he is a reformed person and not amenace to the society. It has also been urged that in the givencircumstances, psychological evaluation of the appellant may be orderedbefore deciding finally the question of sentence.

31. We have given anxious consideration to the rival submissionsand have scanned through the entire record with reference to the lawapplicable.

The scope and width of these appeals

32. As noticed, the Trial Court and the High Court haveconcurrently recorded the findings in this case that the prosecution hasbeen able to successfully establish the chain of circumstances leading tothe only conclusion that the appellant is guilty of the offences of kidnapping,rape and murder of the victim girl. The fundamental fact, as held provedagainst the appellant is that the victim, a seven-and-a-half-year oldmentally and physically challenged girl, was lastly seen in the companyof the appellant when he lured her and took her along with himself on hismotorcycle. The other significant fact, as held proved, is that the deadbody of the victim girl, her clothing, and the motorcycle used in the crimewere recovered at a faraway place at the instance of the appellant.Coupled with these two aspects are the factors that there werebloodstains on the clothes of the appellant when he was found at the busstand after about 7½ hours of the incident of kidnapping and thatbloodstains were also found on the body of the motorcycle; and theDNA profile obtained from these bloodstains matched with the DNAprofile of the blood sample of the victim girl. Added to these had beenthe circumstance that the appellant failed to explain his whereaboutssince he was last seen with the victim girl as also about his knowledge ofthe location of her dead body. These facts and factors, taken togetherwith the medical evidence that there were several injuries all over thebody of the victim girl including gruesome injuries on her private partsand horrific injuries on her head, are said to be of a complete chain of A

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Acircumstances, leading to the conclusion on the guilt of the appellant inrelation to the offences of kidnapping, rape and murder.

33. As could be readily noticed, the concurrent findings leading tothe appellant’s conviction have been challenged as if it were a matter ofregular appeal; and as if inviting re-appreciation of entire evidence on itsBcontents as also its surrounding factors. However, we cannot lose sightof the fact that the present one is a matter of concurrent findings of factby the Trial Court and the High Court. Though the parameters ofexamining the matters in an appeal by special leave under Article 136 ofthe Constitution of India have been laid down repeatedly by this Court inseveral of the decisions but, having regard to the submissions made inCthis case, we may usefully iterate what has been observed in the case ofPappu v. The State of Uttar Pradesh: Criminal Appeal Nos. 1097-1098 of 2018 decided on 09.02.2022 wherein, after referring toArticles 134 and 136 of the Constitution ofIndia and Section 2 of theSupreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,D1970 as also with a detailed reference to several of the relevantdecisions[10], this Court has summed up the subtle but relevant distinctionin the scope of a regular appeal and an appeal by special leave in thefollowing words: - “20. In summation of what has been noticed hereinabove, it is butEclear that as against any judgment/final order or sentence in acriminal proceeding of the High Court, regular appeals to this Courtare envisaged in relation to the eventualities specified in Article134 of the Constitution of India and Section 2 of the Act of 1970.The present one is not a matter covered thereunder and the presentappeals are by special leave in terms of Article 136 of theFConstitution of India. In such an appeal by special leave, wherethe Trial Court and the High Court have concurrently returnedthe findings of fact after appreciation of evidence, each and everyfinding of fact cannot be contested nor such an appeal could bedealt with as if another forum for reappreciation of evidence. OfGcourse, if the assessment by the Trial Court and the High Courtcould be said to be vitiated by any error of law or procedure or 10 Like those in the cases of PritamSingh v. State : AIR 1950 SC 169; RamaniklalGokaldas and Ors. v.S tate of Gujarat : (1976) 1 SCC 6; Mst Dalbir Kaur and Ors. v.State of Punjab : (1976) 4 SCC 158; and Hari & Anr. v. The State of Uttar Pradesh :HCriminal Appeal No. 186 of 2018 decided on 26.11.2021.

MANOJ PRATAP SINGH v. THE STATE OF RAJASTHAN[DINESH MAHESHWARI, J.]

misreading of evidence or in disregard to the norms of judicialprocess leading to serious prejudice or injustice, this Court may,and in appropriate cases would, interfere in order to prevent graveor serious miscarriage of justice but, such a course is adoptedonly in rare and exceptional cases of manifest illegality. Terselyput, it is not a matter of regular appeal. This Court would notinterfere with the concurrent findings of fact based on pureappreciation of evidence nor it is the scope of these appeals thatthis Court would enter into reappreciation of evidence so as totake a view different than that taken by the Trial Court andapproved by the High Court.”

34. Keeping the principles aforesaid in view, we may examine ifthe concurrent findings call for any interreference while reiterating thatwholesome reappreciation of evidence is not within the scope of theseappeals, even though we have scanned through the entire evidence inorder to appropriately deal with the rival submissions.

Procedural questions relating to investigation and trial

35. Before dealing with the contentions relating to the evidenceon record, we deem it appropriate to address the procedural aspects putin question by the learned counsel for the appellant, particularly relatingto the investigation and the trial in this matter.

35.1. The contentions urged by learned counsel for the appellantagainst the process of investigation have only been noted to be rejected.The chronology of the events and steps in the investigation leave nothingto doubt that the Investigating Officers of this case (the SHO PW-20Ganesh Nath and the Circle Officer PW-25 Umesh Ojha) and otherpolice officers have indeed methodically discharged their duties. Ratherthan finding faults or shortcomings in the investigation, we could onlyappreciate the thoroughness of investigation, where every step wasappropriately and punctually taken and all the relevant processes weremethodically documented; and where the charge-sheet was swiftlypresented to the Court with all relevant particulars.

35.2. As per the evidence on record, the information referable toSection 27 of the Indian Evidence Act, 1872[11] as furnished by the appellantat 2:30 a.m. on 18.01.2013 was duly recorded by PW-20 Ganesh Nath(Ex. P-40). Thereafter, the appellant was taken to the location of the 11 Hereinafter also referred to as ‘the Evidence Act’.

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Adead body of the victim girl and the same was recovered as per the saidinformation furnished by the appellant. There is no substance in thecontention against the process taken up by PW-20 Ganesh Nath afterthe arrest of the appellant. Similarly, there does not appear to be anyunusual manner in which evidence against the appellant for other caseswas collected. As noticed, last one of the other cases against the appellantBwas that of theft of the very same motorcycle, which was used in thepresent crime. The other thread of contentions against the process ofinvestigation, about placing reliance on the personal opinion of doctors,is very difficult to be appreciated. The doctors of the Medical Boardwere rather under bounden duty to state their opinion, particularly asCregards the nature and duration of injuries and the cause of death.35.3. The suggestions that the charge-sheet was filed within 12days of his arrest and even without receipt of DNA report and that theappellant should have been given more time to study the police reportstand rather at conflict with the desirability of prompt proceedings byDthe investigating agency and also by the Trial Court in such matters. Theconstitutional guarantees of equality before law, protection of life andpersonal liberty, protection in respect of conviction, and protection againstthe arrest and detention, do not expand into a corresponding right withan accused person to question the swiftness of investigation andexpeditious proceedings of the trial or to suggest that he has to be triedEat a pace of his choice. It sounds rather preposterous that an accusedwould question the trial proceedings only because of the pace maintainedby the prosecution and the Trial Court so as to take the trial to its logicalconclusion at the earliest. While rejecting the contentions urged on behalfof the appellant, we would rather observe that the speed and paceexpected in the cases like the present one, per force, require utmostFexpedition by the investigating agency as also by the Trial Court.

35.4. The contention that the appellant was deprived of his rightof defence and he was given services of an inexperienced counsel remaintoo far-stretched and rather unjustified. Apart that no such grievancewas ever suggested before the Trial Court or even before the HighGCourt, we find from the record that legal aid counsel was appointed atthe request of the appellant himself and in fact, the Trial Court proceededwith the matter only after appointment of a counsel for the appellant. Aperusal of the record further makes it clear that the legal aid counsel leftno stone unturned to defend the appellant and thoroughly cross-examinedHeach and every witness to the minutest and minor details. He contested every proposition of the prosecution and even the application for recallingof PW-1 (only for the purpose of identification of the clothes of deceased,which were received later from FSL) was also thoroughly contested byhim by filing a reply and contending that the prosecution was trying to fillup a lacuna in their case. Hereinbefore, we have referred to the extensivecontentions urged on behalf of the accused-appellant by the legal aidcounsel, as dealt with by the Trial Court in its judgment dated 28.09.2013[12].

Having examined the record, we find the criticism in this appealagainst the conduct of case by the legal aid counsel to be unwarrantedand rather unfair. The said counsel had indeed faithfully discharged hisduties and had thoroughly defended the appellant. As regards the defenceversion, it has not been shown if the appellant ever suggested to thecounsel about his desire to have one or more meetings with him or toconfer with him about any particular line of defence. We are constrainedto observe that the negative comments qua the said legal aid counselcannot be countenanced and raising of such contentions in this appeal isdifficult to be appreciated; these contentions are rejected in toto.

Concurrent findings of fact: whether requiring interference?

36. Moving on to the submissions assailing the findings on guilt ofthe appellant, we may reiterate that the present case is based oncircumstantial evidence where the Trial Court and the High Court haveconcurrently recorded their findings that the prosecution has been ableto successfully establish the chain of circumstances leading to theunmistakable conclusion that the appellant is guilty of the offences ofkidnapping, rape and murder of the victim girl. However, learned counselfor the appellant has endeavoured to project certain so-calledshortcomings and lacunae in the prosecution case. While dealing withsuch submissions, we may usefully take note of the basic principles relatingto a case based on circumstantial evidence.

36.1. The principles explained and enunciated in the case ofSharad Birdhichand Sarda v. State of Maharashtra: (1984) 4 SCC116 remain a guiding light for the Courts in regard to the proof of a casebased on circumstantial evidence, wherein this Court referred to thecelebrated decision in the case of Hanumant v. State of MadhyaPradesh.: AIR 1952 SC 343 and deduced five golden principles,panchsheel, of proving a case based on circumstantial evidence in thefollowing passages: - 12 Vide paragraphs 18, 18.1 and 18.2 (supra).

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“152..............It may be useful to extract what Mahajan, J. haslaid down in Hanumant case:

“It is well to remember that in cases where the evidence is ofa circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instance befully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of the accused.Again, the circumstances should be of a conclusive nature andtendency and they should be such as to exclude everyhypothesis but the one proposed to be proved. In other words,there must be a chain of evidence so far complete as not toleave any reasonable ground for a conclusion consistent withthe innocence of the accused and it must besuch as to showthat within all human probability the act must have been doneby the accused.”

153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt is to bedrawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned "must or should” and not "maybe”established. There is not only a grammatical but a legaldistinction between “may be proved” and “must be or should beproved” as was held by this Court in Shivaji Sahabrao Bobade v.State of Maharashtra [(1973) 2 SCC 793] where the observationswere made:

“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothes is except that the accusedis guilty,

(3) the circumstances should be of a conclusive nature andtendency,

(4) they should exclude every possible hypothesis except the oneto be proved, and

(5) there must be a chain of evidence so complete as not to leaveany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitutethe panchsheel of the proof of a case based on circumstantialevidence.

155. It may be interesting to note that as regards the mode ofproofin a criminal case depending on circumstantial evidence, intheabsence of a corpus delicti, the statement of law as to proof ofthesame was laid down by Gresson, J. (and concurred by 3 moreJudges) in King v. Horry [1952 NZLR 111] thus:

“Before he can be convicted, the fact of death should be provedby such circumstances as render the commission of the crimemorally certain and leave no ground for reasonable doubt: thecircumstantial evidence should be so cogent and compelling asto convince a jury that upon no rational hypothesis other thanmurder can the facts be accounted for.”

156. Lord Goddard slightly modified the expression “morallycertain” by “such circumstances as render the commission of thecrime certain”.

157. This indicates the cardinal principle of criminal jurisprudencethat a case can be said to be proved only when there is certainand explicit evidence and no person can be convicted on puremoral conviction...”

37. Keeping the aforesaid principles in view, when we examinethe contentions of the learned counsel for the appellant, we find nothingof substance therein.

37.1. It has been contended on behalf of the appellant that hisname was not mentioned in the first missing person report lodged in thismatter, as admitted by PW-1 Kamla and PW-3 Madan Lal; and that thesaid first report has not been placed on record. This contention has itsroots in the last line occurring in the statement made by PW-1 Kamla inher cross-examination that she had lodged a missing person report inwhich the name of appellant was not stated. It may also have its basis in A

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Athe statement made by PW-3 Madan Lal in his cross-examination thatafter the accused Manoj Pratap Singh took away the child, they went toPolice Post Bandiyabada, where missing report was lodged.

37.1.1. The contention is, however, totally detached from realityas also from the factual matrix. It has been consistently maintained thatBthe appellant kidnapped the victim girl at about 6:30 p.m. from the vendingcart of PW-1 Kamla. It has been proved by all the relevant witnessesthat the attempts were made to chase the appellant but he could not bestopped. Though no such report made in writing at Police PostBandiyabada is on record but, even if it be assumed that they first wentto the said police post (as stated by PW-3), so far giving the name of theCappellant as the person kidnapping the child is concerned, PW-3 hadbeen specific that his name was known to them and was given to thepolice post too. Reference to some report at the said police post carrieshardly any adverse impact on the prosecution case because theinformation stated in the form of complaint by PW-1 Kamla accompaniedDby PW-3 Madan Lal was indeed recorded in writing by PW-19 NandLal at 8:15 p.m. at the police station. It has been established that thepolice station was at a distance of about 7 km from the place of kidnapping.It has also been pointed out by PW-1 that it took about 30 to 45 minutesto reach the police station in an auto and the oral report was made at8:15 p.m. In view of the specific facts stated in unison by the relevantEprosecution witnesses that the name and identity of the kidnapper wasknown to them, coupled with the time that elapsed from the moment ofkidnapping (around 6:30 p.m.) and until lodging of the report at the policestation (around 8:15 p.m.) while providing for commuting time, therewas neither any occasion nor any reason for the prosecution witnessesFto omit the name of the appellant.

37.1.2. The report (Ex. P-1) and the FIR registered on its basis(Ex. P-2) had been specific, not only giving the name of the appellant(though in the report, the name given was Manoj Singh and not ManojPratap Singh) but further to that, the informant also stated her knowledgeGthat the person concerned was the one who was earlier living in theHousing Board Colony. In the face of the contents of the report Ex. P-1 and the FIR Ex. P- 2 as also the consistent testimony of PW-1 Kamla,PW-2 Dharam Das, PW-3 Madan Lal, PW-5 Maniraj Singh and PW-17Dinesh Bhatia, who stated in no uncertain terms that it was the appellantwho kidnapped the victim girl, the contention urged on behalf of theH

appellant could only be rejected. Moreover, PW-12 Ranjit Singh hasestablished a crucial fact that around the very same time as that ofkidnapping of the victim girl, the appellant reached the liquor shop andpurchased beer while a girl child was sitting on his motorcycle. Thetestimony of this witness has also remained unshaken in the cross-examination. The appellant has not been able to show as to why thisindependent witness would at all be deposing against him. The appellanthas further failed to explain if the girl child sitting on his motorcycle atthe time of purchasing beer from the shop of PW-12 Ranjit Singh wasnot the victim girl but anyone else.

37.1.3. Thus, the evidence on record is categorical and clear thatthe victim girl was last seen alive only with the appellant.

37.2. The other part of contention with reference to the medicaland other scientific evidence also carry no substance whatsoever. It hasbeen argued, by relying on one sentence in the deposition of one of thedoctors of Medical Board during cross-examination that the death mighthave been caused as a result of rape, that the appellant had not intendedto cause death. The post-mortem report (Ex. P-35), as reproducedhereinbefore leaves nothing to doubt that the hapless victim sustainedextensive injuries all over her body and the injuries particularly on herhead as also on the private parts had been rather horrific. Her deathultimately had been due to head injuries, as opined by the doctors of theMedical Board. We have reproduced hereinbefore the relevant part ofthe statement of PW-14 Dr. Manju Purohit, a member of the MedicalBoard conducting post-mortem examination[13]. The expressions “brutal”,“inhuman”, “cruel” etc. came in her statement with reference to theCourt question, where she was asked her expert medical opinion afterconducting external and internal examination of injuries and afteranalysing the circumstances and condition of body; and she opined withreference to the injuries that ‘the eight year old innocent girl hadbeen brutally and inhumanly raped and on objecting, the personwho raped her behaved in an inhuman and cruel manner as a resultof which, she sustained different simple and grievous injuries dueto which she died’. She further pointed out her opinion about brutalitywhile stating that ‘laceration of the vagina of the deceased showsthat she was brutally raped in an inhuman manner’. However, inher further cross-examination, this witness categorically affirmed the 13 Vide paragraph 8.3 (supra).

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Aopinion stated by the Medical Board in the post-mortem report about thecause of death and clearly stated that ‘the cause of death was injurycaused on the head’. In the given set of circumstances and cogentexpert medical evidence, the absence of semen on the body of the victimor in the vaginal swab is hardly of any bearing on the substance of thematter. Hence, the contentions urged on behalf of the appellant in relationBto the medical evidence remain baseless and stand rejected. In continuity,we may also observe that the submissions suggestive of the victim havingreceived only bruises and abrasions apart from injury on head are alsoincorrect. A bare reference to the extensive post-mortem report (Ex. P-35) and the statements of the doctors of the Medical Board PW-14,CPW-15 and PW-21 is sufficient to reject these suggestions.

37.2.1. Apart from the above, one line occurring in the depositionof PW-21 Dr. Chetna Vaishnav has been picked up to build an argumenton behalf of the appellant that the death of the victim girl might havebeen caused as a result of rape; and it has been submitted that causing Ddeath cannot be taken to be the intention of the appellant. The argumentis premised on a wrong and incomplete reading of the statement of PW-21 Dr. Chetna Vaishnav. She too had been categorical in her examination-in-chief about the post-mortem report and had deposed consistently withPW-14 Dr. Manju Purohit and PW-15 Dr. Kailash Chand that as per

Medical Board, the head injury was the cause of death. She reassertedEthis fact in her cross-examination too, while stating that ‘in the opinionof medical board, multiple injuries were found on the head of thedeceased which collectively resulted in death of the deceased’. Shehad, of course, stated in her examination-in-chief that ‘the deceased was subjected to brutal rape and her death was caused’ but, readingFher testimony as a whole, it is but clear that in this sentence, what sheintended to convey was about two different acts, i.e., of committingrape and of causing death. She had not stated that death was caused byrape.

37.2.2. Having examined the post-mortem report and theGtestimonies of the doctors conducting post-mortem, we are clearly ofthe view that even by distortion of language occurring in their testimonies,it cannot be deduced that there was any doubt or difference of opinion inthe Medical Board about the cause of death. In other words, the doctorshad been clear, categorical and consistent that the victim girl died due tothe injuries caused on her head.H

37.3. As regards another contention about the doubts on collectionof blood samples from the metal surface of the motorcycle in questionbecause of the alleged rain or drizzling or storm, first of all it may bementioned that there had not been any specific evidence about anyexcessive rain in the nature of storm. It has, of course, been stated bythe witnesses that at the time of kidnapping of the victim girl, it wasraining/drizzling. However, there is no such evidence that at the time ofarrest of the appellant, or at the time of his disclosure statement at about2:00 a.m. on 18.01.2013, or at the time of recovery of dead body atabout 3:15 a.m. on 18.01.2013, or at the time of recovery of motorcycleat about 4:45 p.m. on 19.01.2013, or at the time of collection of bloodsample from the motorcycle at about 5:00 p.m. on 19.01.2013, there hadbeen any such rain or drizzle for which, the requisite samples could nothave been collected. This is apart from the fact that FSL had clearly andundoubtedly performed DNA test on the blood sample collected frommotorcycle (packet marked D-Exhibit No. 6 in the FSL report Ex. P-51). Thus, the submission doubting the collection of blood sample fromthe motorcycle is also totally baseless and stands rejected.

37.4. The other submission seeking to question the factum ofmental and physical disabilities of the victim girl does not carry anysubstance at all. Apart from the fact that mental and physical disabilitiesof the child have been consistently stated by her parents and grandfather,the fact of the matter remains that way back on 04.03.2010, the MedicalBoard found her suffering from spastic palsy (vide Ex. P-11); and PW-18 Dr. Narendra Paliwal indeed proved the said certificate. In fact, theInvestigating Officer PW-25 Umesh Ojha took care to seek medicalopinion/comments regarding the nature of disablement of the victim girlwith reference to the said certificate Ex. P-11 by way of a communicationdated 22.01.2013 (Ex.- 52) and thereupon, the Medical Officer madehis endorsement to the effect that ‘her cordination movements of limbswhich are controlled by brain were disturbed and as such she wasphysically and mentally challenged child’. The submissions as regardsevidentiary value of school certificates carry no meaning when the matteris examined with reference to the overall evidence on record, whichleaves nothing to doubt that the victim girl was a mentally and physicallychallenged child. Percentage of disablement is not the matter in issuehere. The relevant facts are that she was suffering from mental andphysical disabilities and was below 8 years of age. These facts are dulyproved on record.

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A38. Hence, the contentions urged on behalf of the appellant seekingto question the concurrent findings by reference to certain non-existentor irrelevant factors need to be rejected altogether.

39. We may usefully summarise the facts and factors establishedbeyond doubt on record forming the complete chain of circumstancesBthat: a) the deceased was seven-and-a-half-years old mentally andphysically challenged girl; b) the deceased was last seen with theappellant when he kidnapped her from the lawful guardianship of herparents; c) the appellant was arrested within about 7½ hours of kidnap;d) the clothes worn by the appellant were bloodstained, which wereseized and sealed; e) after about 1½ hours of his arrest, the dead bodyCof the victim girl was recovered at a faraway place on the disclosureand information of the appellant; f) the motorcycle used by the appellantand the frock worn by the victim girl were also recovered at a farawayplace at the disclosure and information of the appellant; g) the appellantfailed to account for his own whereabouts as also the whereabouts ofDthe victim girl since after the time of kidnap; h) the appellant also failedto show the reason of his knowledge about the place/places where thedead body, the motorcycle and the frock were recovered; i) as per theevidence on record, it had been a case of brutal rape (with gruesomeinjuries on and around private parts) and merciless killing (with horrific injuries on head) of the victim girl; j) the victim died due to the injuries onEher head; k) the DNA profile of blood collected from the person andclothing of the victim girl matched with the DNA profile of blood foundon the coat, pant and shirt of the appellant and on the motorcycle[14]. Thischain is so complete in itself that no stretch of imagination could take usto any other hypothesis except the guilt of the appellant in relation to theFoffences charged. Hence, the concurrent findings of the Trial Court and

14 The value and worth of DNA profile matching in criminal cases has been succinctlystated by this Court in the case of Anil @ Anthony Arikswamy Joseph v. State ofMaharashtra : 2014 (4) SCC 69 in the following terms: -“18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the geneticGinformation in all living organisms. DNA genotype can be obtained from anybiological material such as bone, blood, semen, saliva, hair, skin, etc. Now, forseveral years, DNA profile has also shown a tremendous impact on forensicinvestigation. Generally, when DNA profile of a sample found at the scene of crimematches with the DNA profile of the suspect, it can generally be concluded thatboth the samples have the same biological origin. DNA profile is valid and reliable,but variance in a particular result depends on the quality control and quality procedureHin the laboratory.”

the High Court holding the appellant guilty are imminently just and proper;and call for no interference whatsoever.

39.1. We may also indicate at least two other facts established onrecord which not only strengthen the complete chain of circumstancesnoticed above but, have their own bearing in this matter. The first one ofthese facts, which is duly attached to the chain of circumstances, is thatthe motorcycle used in this crime bearing registration number RJ30 3M5944 was itself stolen on 14.01.2013 for which, a theft report had alreadybeen lodged at Police Station Nathdwara, as distinctly proved by PW-23Ramdev Regar, Sub-Inspector of Police. It has been duly established onrecord that the appellant indeed used that motorcycle in kidnapping thevictim girl and the motorcycle was recovered as per the informationsupplied by the appellant. It has not been a case of the appellant that themotorcycle belonged to him or was given to him by its owner. Thus,undoubtedly, the appellant used stolen motorcycle in committing this crime.The second one of these facts, duly established by the testimony of PW-12 Ranjeet Singh, had been that after kidnapping the victim girl from thelawful guardianship of her parents, the appellant headed towards theliquor shop with the victim girl sitting on the motorcycle; he purchased abottle of beer and he even quarrelled as regards the price; and he leftthe liquor shop with a bottle of beer and with the victim girl sitting on themotorcycle. These facts and factors only worsen the criminality ofconduct duly found proved against the appellant.

40. For what has been discussed herein above, we have not aniota of doubt that the present case of circumstantial evidence answersto the panchsheel principles of Sharad Birdhich and Sarda (supra).The appellant was rightly convicted by the Trial Court and hisconvictionhas rightly been maintained by the High Court. To put it in other words,having examined the matter in its totality, we are satisfied that theprosecution has been able to prove its case beyond reasonable doubt,rather beyond any doubt whatsoever. The chain of circumstancesprojected by the prosecution is complete in its entirety and leads only tothe result that the appellant had been the person who kidnapped, rapedand murdered the victim, seven-and-a-half-years old mentally andphysically challenged girl. Hence, the concurrent findings leading toconviction of the appellant of the offences aforementioned call for nointerference; and deserve to be confirmed.

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A41. Even when we uphold the concurrent findings leading toconviction of the appellant, the question remains about the death sentenceawarded to him for the offence under Section 302 IPC, which has beenseriously challenged in these appeals. Before proceeding to deal withthis major question calling for determination in this case, we may disposeof one of the unnecessary submissions made on behalf of the appellantBas regards his conviction both under POCSO and IPC. This submission,made with reference to Section 42 POCSO, is also baseless. The mandatefor awarding punishment which is greater in degree does notcorrespondingly lead to the proposition that the appellant could not havebeen convicted of the offence under Section 376 IPC as also underCSection 6 POCSO. This aspect need not detain us much longer becausethe core question in this case after confirmation of conviction is as towhether death sentence awarded for the offence under Section 302IPC be maintained or be substituted by any other sentence.

Whether death sentence be maintained or substituted byDany othersentence

42. As noticed, two-fold submissions have been put at the forefrontby learned senior counsel for the appellant in challenge to the deathsentence awarded in this case. First, that the present case is based oncircumstantial evidence rather than absolute proof and therefore, benefitEof ‘residual doubt’ ought to be given to the appellant and capital sentenceshould not be awarded because, the present case may be a rare one butis not the rarest of rare. Secondly, learned senior counsel has referred tothe mitigating factors wherefor the appellant deserves to be spared fromcapital sentence, being those of his young age at the time of commissionof the crime in question; his poor economic background; his having familyFwith wife, minor daughter and aged father; and strong probability of hisreformation. Per contra, learned senior counsel for the respondent-Statehas highlighted the aggravating circumstances that the appellant hadkidnapped, raped and murdered a mentally and physically challengedgirl child; that his acts and actions disclose his planning and pre-meditatedGactions; and that the ghastly crime was committed in a diabolical andbarbaric manner. Apart from other factors, learned senior counsel forthe respondent-State has highlighted the facts about post-convictionfelonious conduct of the appellant where once he was awarded 7 days’punishment for quarrelling with another detainee and then, he wasconvicted of the offence under Section 302/34 IPC for killing of anotherH

jail inmate. Learned counsel for the respondent would submit that theappellant has proven himself to be a recidivist, the person who is proneto killing people, has committed crimes in the past and has shown thetendency to relapse into crime repeatedly, and is dangerous to society.

42.1. Apropos the rival submissions and the fact that the sentenceunder consideration is that of termination of a natural life, it is obviousthat the matter calls for a serious and heightened scrutiny of all therelevant aspects, with reference to the statutory requirements as alsothe legal principles enunciated by this Court.

Death sentence: Evolution of principles and norms

43. As regards the statutory requirements, as per sub-section (2)of Section 235 CrPC, on being convicted and not being released onprobation or after admonition in terms of Section 360 CrPC, the accusedhas to be heard by the Judge concerned on the question of sentence andthen, sentence has to be passed according to law. Moreover, as per sub-section (3) of Section 354 CrPC, if the conviction is for an offencepunishable with death or in the alternative, with imprisonment for life orimprisonment for a particular term of years, the judgment has to statethe reasons for the sentence awarded; and in case of death sentence,the judgment has to state ‘special reasons’ therefor.

43.1. Sub-section (2) of Section 235 CrPC, providing formandatory hearing of the accused before passing sentence, reads asunder: -

“(2) If the accused is convicted, the Judge shall, unless he proceedsin accordance with the provisions of section 360, hear the accusedon the question of sentence, and then pass sentence on himaccording to law.”

43.2. Sub-section (3) of Section 354 CrPC, requiring reasons forsentence and ‘special reasons’ in case of death sentence, reads as under:- “(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonmentfor a term of years, the judgment shall state the reasons for thesentence awarded, and, in the case of sentence of death, thespecial reasons for such sentence.”

44. We may now usefully summarise the salient features ofevolution of legal principles and norms for dealing with the question of A

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Asentencing in such matters where the sentence of death could also beawarded, particularly with reference to the leading cases and expositionstherein.

44.1. In the case of Jagmohan Singh v. The State of U.P.:(1973) 1 SCC 20, the questions in their broader spectrum were raisedBabout the constitutional impermissibility of death sentence with thesubmissions: (i) that the death sentence was unreasonable for it wouldput an end to all the rights guaranteed under clauses (a) to (g) of Article19(1) of the Constitution of India; (ii) that the discretion vested in theJudges to impose capital punishment was not based on any standards orpolicy and hence, the provision suffered from the vice of excessiveCdelegation of legislative function; (iii) that the uncontrolled and unguideddiscretion in the Judges to impose capital punishment or imprisonmentfor life was hit by Article 14 of the Constitution of India; and (iv) thatunder Article 21 of the Constitution, no person shall be deprived of hislife except according to the procedure established by law but, the Dprovisions of law did not provide a procedure for trial of factors andcircumstances crucial for making the choice between the capitalpunishment and imprisonment for life.

44.1.1. The Constitution Bench rejected the aforesaid and corollaryarguments while pointing out, inter alia, that the provisions in theConstitution of India, like those of Articles 72(1)(c), 72(3), 21, 134 asEalso the then applicable provisions of Sections 401 and 402 of the Codeof Criminal Procedure, 1898 were indicative that capital sentence hadnot been regarded per se unreasonable or not in public interest; and thatthe policy of law in giving a very wide discretion in the matter ofpunishment to the Judge has its origin in the impossibility of laying downFstandards, rather exercise of judicial discretion on well-recognisedprinciples is the safest possible safeguards for the accused.[15] As regardsthe contentions urged on the anvil of Article 21 of the Constitution of 15 The Constitution Bench underscored the significance and worth of judicial discretionin the following words: -G“26…...The impossibility of laying down standards is at the very core of thecriminal law as administered in India which invests the judges with a very widediscretion in the matter of fixing the degree of punishment. The discretion in thematter of sentence is, as already pointed out, liable to be corrected by superiorcourts. Laying down of standards to the limited extent possible as was done in theModel Judicial Code would not serve the purpose. The exercise of judicial discretionon well-recognised princi ples is, in the final analysis, the safest possible safeguardsHfor the accused.”

India, the Bench observed that the Court in such matters would beprincipally concerned with the facts and circumstances, whetheraggravating or mitigating, which are connected with the particular crimeunder inquiry and which are capable of being proved in accordance withthe laws of procedure; and finally the parties on both sides were havingopportunity to address the Court whereafter the Judge would decide onthe guilt and punishment. The Constitution Bench observed that therelevant provisions were part of the procedure established by law andthose provisions were not shown to be constitutionally invalid. Thus, theBench concluded that ‘the death sentence imposed after trial inaccordance with the procedure established by law is notunconstitutional under Article 21.’

44.2. Two major factors/events after the decision in Jagmohan(supra) led to another reference to the Constitution Bench of this Courtin regard to the constitutional validity of death penalty for the offence ofmurder as also of the sentencing procedure. One had been theamendment of the law relating to criminal procedure with advent of theCode of the Criminal Procedure, 1973 in replacement of the old Code of1898, which introduced, as regards sentencing procedure, the above-quoted sub-section (2) of Section 235 and sub-section (3) of Section354. Several persons convicted of murder and sentenced to death filedthe petitions under Article 32 of the Constitution of India challenging theconstitutional validity of death penalty provided in Section 302 IPC forthe offence of murder and that of the sentencing procedure provided insub-section (3) of Section 354 CrPC. The other one had been the majorityopinion of a 3-Judge Bench of this Court in the case of Rajendra Prasadv. State of Uttar Pradesh: (1979) 3 SCC 646, purportedly seeking towhittle down the ratio of Jagmohan (supra); and correctness of suchan opinion having been doubted by another Bench of this Court. Thereference so made to the Constitution Bench came to be answered inlocus classicus Bachan Singh (supra) with its ‘rarest of rare’ doctrine.The opinion of majority in Bachan Singh is the guiding light andfoundational discipline for all the later developments and enunciations onthe subject.

44.3. In Bachan Singh (supra), the Constitution Bench of thisCourt examined two major questions, i.e., as to whether death penaltyprovided for the offence of murder under Section 302 IPC wasunconstitutional; and if not, as to whether the sentencing procedure in AB

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ASection 354(3) CrPC was unconstitutional on the ground that it investedthe Court with unguided and untrammelled discretion.

44.3.1. After having examined a variety of features and factorspertaining to Articles 19(1) and 21 of the Constitution of India, the Court(per majority of the Constitution Bench) answered the first question inBthe negative, while observing and pointing out, inter alia, as under: -

“132. To sum up, the question whether or not death penalty servesany penological purpose is a difficult, complex and intractable issue.It has evoked strong, divergent views. For the purpose of testingthe constitutionality of the impugned provision as to death penaltyin Section 302 of the Penal Code on the ground of reasonablenessin the light of Articles 19 and 21 of the Constitution, it is notnecessary for us to express any categorical opinion, one way orthe other, as to which of these two antithetical views, held by theAbolitionists and Retentionists, is correct. It is sufficient to saythat the very fact that persons of reason, learning and light arerationally and deeply divided in their opinion on this issue, is aground among others, for rejecting the petitioners argument thatretention of death penalty in the impugned provision, is totally devoidof reason and purpose. If, notwithstanding the view of theAbolitionists to the contrary, a very large segment of people, theworld over, including sociologists, legislators, jurists, judges andadministrators still firmly believe in the worth and necessity ofcapital punishment for the protection of society, if in the perspectiveof prevailing crime conditions in India, contemporary public opinionchannelized through the people’s representatives in Parliament,has repeatedly in the last three decades, rejected all attempts,including the one made recently, to abolish or specifically restrictthe area of death penalty, if death penalty is still a recognisedlegal sanction for murder or some types of murder in most of thecivilised countries in the world, if the framers of the IndianConstitution were fully aware — as we shall presently show theywere — of the existence of death penalty as punishment for murder,under the Penal Code, 1860, if the 35th Report and subsequentreports of the Law Commission suggesting retention of deathpenalty, and recommending revision of the Criminal ProcedureCode and the insertion of the new Sections 235(2) and 354(3) inthat Code providing for pre-sentence hearing and sentencing C

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procedure on conviction for murder and other capital offenceswere before the Parliament and presumably considered by it whenin 1972-1973 it took up revision of the Code of 1898 and replacedit by the Code of Criminal Procedure, 1973, it is not possible tohold that the provision of death penalty as an alternative punishmentfor murder, in Section 302 of the Penal Code is unreasonable andnot in the public interest. We would, therefore, conclude that theimpugned provision in Section 302, violates neither the letter northe ethos of Article 19.

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136. Article 21 reads as under:

“No person shall be deprived of his life or personal libertyexcept according to procedure established by law.”

If this Article is expanded in accordance with the interpretativeprinciple indicated in Maneka Gandhi [(1978) 1 SCC 248], itwill read as follows:

“No person shall be deprived of his life or personal libertyexcept according to fair, just and reasonable procedureestablished by valid law.”

In the converse positive form, the expanded Article will read asbelow:

“A person may be deprived of his life or personal liberty inaccordance with fair, just and reasonable procedureestablished by valid law.”

Thus expanded and read for interpretative purposes, Article 21clearly brings out the implication, that the founding fathersrecognised the right of the State to deprive a person of his life orpersonal liberty in accordance with fair, just and reasonableprocedure established by valid law. There are several otherindications, also, in the Constitution which show that theConstitution-makers were fully cognizant of the existence of deathpenalty for murder and certain other offences in the Penal Code,1860. Entries 1 and 2 in List III — Concurrent List — of theSeventh Schedule, specifically refer to the Penal Code, 1860 andthe Code of Criminal Procedure as in force at the commencementof the Constitution. Article 72(1)(c) specifically invests the A

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President with power to suspend, remit or commute the sentenceof any person convicted of any offence, and also “in all caseswhere the sentence is a sentence of death”. Likewise, under Article161, the Governor of a State has been given power to suspend,remit or commute, inter alia, the sentence of death of any personconvicted of murder or other capital offence relating to a matterto which the executive power of the State extends. Article 134, interms, gives a right of appeal to the Supreme Court to a personwho, on appeal, is sentenced to death by the High Court, afterreversal of his acquittal by the trial court. Under the successiveCriminal Procedure Codes which have been in force for about100 years, a sentence of death is to be carried out by hanging. Inview of the aforesaid constitutional postulates, by no stretch ofimagination can it be said that death penalty under Section 302 ofthe Penal Code, either per se or because of its execution byhanging, constitutes an unreasonable, cruel or unusual punishment.By reason of the same constitutional postulates, it cannot be saidthat the framers of the Constitution considered death sentencefor murder or the prescribed traditional mode of its execution as adegrading punishment which would defile “the dignity of theindividual” within the contemplation of the preamble to theConstitution. On parity of reasoning, it cannot be said that deathpenalty for the offence of murder violates the basic structure ofthe Constitution.”

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44.3.2. In relation to the second question, the Court examined thedevelopment of law, particularly the change of legislative policy withintroduction of Section 354(3) CrPC as also the Law Commission’sFreports and various past decisions; and summarised the propositions laiddown in Jagmohan (supra) in the following terms: - “160. In the light of the above conspectus, we will now considerthe effect of the aforesaid legislative changes on the authorityand efficacy of the propositions laid down by this Courtin Jagmohan case. These propositions may be summed up asunder:

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(i) The general legislative policy that underlines the structureof our criminal law, principally contained in the Indian Penal Codeand the Criminal Procedure Code, is to define an offence withsufficient clarity and to prescribe only the maximum punishment H

therefor, and to allow a very wide discretion to the Judge in thematter of fixing the degree of punishment.

With the solitary exception of Section 303, the same policypermeates Section 302 and some other sections of the Penal Code,where the maximum punishment is the death penalty.

(ii) (a) No exhaustive enumeration of aggravating or mitigatingcircumstances which should be considered when sentencing anoffender, is possible. “The infinite variety of cases and facets toeach case would make general standards either meaningless ‘boilerplate’ or a statement of the obvious that no Jury (Judge) wouldneed.” (referred to McGoutha v. California: (1971) 402 US 183)

(b) The impossibility of laying down standards is at the verycore of the criminal law as administered in India which investsthe Judges with a very wide discretion in the matter of fixing thedegree of punishment.

(iii) The view taken by the plurality in Furman v. Georgia:(1976) 1 SCC 425, decided by the Supreme Court of the UnitedStates, to the effect, that a law which gives uncontrolled andunguided discretion to the Jury (or the Judge) to choose arbitrarilybetween a sentence of death and imprisonment for a capitaloffence, violates the Eighth Amendment, is not applicable in India.We do not have in our Constitution any provision like the EighthAmendment, nor are we at liberty to apply the test ofreasonableness with the freedom with which the Judges of theSupreme Court of America are accustomed to apply “the dueprocess” clause. There are grave doubts about the expediency oftransplanting western experience in our country. Social conditionsare different and so also the general intellectual level. Argumentswhich would be valid in respect of one area of the world may nothold good in respect of another area.

(iv) (a) This discretion in the matter of sentence is to beexercised by the Judge judicially, after balancing all the aggravatingand mitigating circumstances of the crime.

(b) The discretion is liable to be corrected by superiorcourts. The exercise of judicial discretion on well recognisedprinciples is, in the final analysis, the safest possible safeguard forthe accused.

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In view of the above, it will be impossible to say that therewould be at all any discrimination, since crime as crime may appearto be superficially the same but the facts and circumstances of acrime are widely different. Thus considered, the provision inSection 302, Penal Code is not violative of Article 14 of theConstitution on the ground that it confers on the Judges an unguidedand uncontrolled discretion in the matter of awarding capitalpunishment or imprisonment for life.

(v) (a) Relevant facts and circumstances impinging on thenature and circumstances of the crime can be brought before thecourt at the pre-conviction stage, notwithstanding the fact that noformal procedure for producing evidence regarding such factsand circumstances had been specifically provided. Where counseladdresses the court with regard to the character and standing ofthe accused, they are duly considered by the court unless there issomething in the evidence itself which belies him or the PublicProsecutor challenges the facts.

(b) It is to be emphasised that in exercising its discretion tochoose either of the two alternative sentences provided in Section302 Penal Code, “the court is principally concerned with the factsand circumstances whether aggravating or mitigating, which areconnected with the particular crime under inquiry. All such factsand circumstances are capable of being proved in accordancewith the provisions of the Indian Evidence Act in a trial regulatedby the CrPC. The trial does not come to an end until all the relevantfacts are proved and the counsel on both sides have an opportunityto address the court. The only thing that remains is for the Judgeto decide on the guilt and punishment and that is what Sections306 (2) and 309 (2), CrPC purport to provide for. These provisionsare part of the procedure established by law and unless it is shownthat they are invalid for any other reasons they must be regardedas valid. No reasons are offered to show that they areconstitutionally invalid and hence the death sentence imposed aftertrial in accordance with the procedure established by law is notunconstitutional under Article 21”. (SCC p. 36), (emphasis added)”

44.3.3. The Court, thereafter, observed that the authority of thepropositions aforesaid had not been affected by the legislative changesbut two of the propositions, at No. (iv)(a) and (v)(b), would require MANOJ PRATAP SINGH v. THE STATE OF RAJASTHAN[DINESH MAHESHWARI, J.]

modulation in terms of the changed legislative policy delineated in Sections354(3) and 235(2) CrPC. Thus, while otherwise reaffirming the viewtaken in Jagmohan (supra) the Court held and laid down as under: - “164. Attuned to the legislative policy delineated in Sections 354(3)and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan shall haveto be recast and may be stated as below:

(a) The normal rule is that the offence of murder shall bepunished with the sentence of life imprisonment. The courtcan depart from that rule and impose the sentence of deathonly if there are special reasons for doing so. Such reasonsmust be recorded in writing before imposing the death sentence.

(b) While considering the question of sentence to be imposedfor the offence of murder under Section 302 of the Penal Code,the court must have regard to every relevant circumstancerelating to the crime as well as the criminal. If the court finds,but not otherwise, that the offence is of an exceptionallydepraved and heinous character and constitutes, on accountof its design and the manner of its execution, a source of gravedanger to the society at large, the court may impose the deathsentence.

165. The soundness or application of the other propositionsin Jagmohan, and the premises on which they rest, are not affectedin any way by the legislative changes since effected. On thecontrary, these changes reinforce the reasons given in Jagmohan,for holding that the impugned provisions of the Penal Code andthe Criminal Procedure Code do not offend Articles 14 and 21 ofthe Constitution. Now, Parliament has in Section 354 (3) given abroad and clear guide-line which is to serve the purpose of lodestarto the court in the exercise of its sentencing discretion. Parliamenthas advisedly not restricted this sentencing discretion further, as,in its legislative judgment, it is neither possible nor desirable to doso. Parliament could not but be aware that since the AmendingAct 26 of 1955, death penalty has been imposed by courts on anextremely small percentage of persons convicted of murder — afact which demonstrates that courts have generally exercised theirdiscretion in inflicting this extreme penalty with greatcircumspection, caution and restraint. Cognizant of the pastexperience of the administration of death penalty in India, A

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Parliament, in its wisdom, thought it best and safe to leave theimposition of this gravest punishment in gravest cases of murder,to the judicial discretion of the courts which are manned by personsof reason, experience and standing in the profession. The exerciseof this sentencing discretion cannot be said to be untrammelledand unguided. It is exercised judicially in accordance with wellrecognised principles crystallised by judicial decisions, directedalong the broad contours of legislative policy towards the signpostsenacted in Section 354(3).

166. The new Section 235(2) adds to the number of several othersafeguards which were embodied in the Criminal Procedure Codeof 1898 and have been re-enacted in the Code of 1973. Then, theerrors in the exercise of this guided judicial discretion are liable tobe corrected by the superior courts. The procedure provided inCriminal Procedure Code for imposing capital punishment formurder and some other capital crimes under the Penal Codecannot, by any reckoning, be said to be unfair, unreasonable andunjust. Nor can it be said that this sentencing discretion, with whichthe courts are invested, amounts to delegation of its power oflegislation by Parliament. The argument to that effect is entirelymisconceived. We would, therefore, reaffirm the view taken bythis Court inJagmohan, and hold that the impugned provisionsdo not violateArticles 14, 19 and 21 of the Constitution.”

44.3.4. The Court also stated that ‘special reasons’ in the contextof Section 354(3) CrPC would obviously mean ‘exceptional reasons’,meaning thereby, that the extreme penalty should be imposed only inextreme cases in the following terms: - “161. .…The expression “special reasons” in the context of thisprovision, obviously means “exceptional reasons”founded on theexceptionally grave circumstances of the particular case relatingto the crime as well as the criminal. Thus, the legislative policynow writ large and clear on the face of Section 354(3) is that onconviction for murder and other capital offences punishable in thealternative with death under the Penal Code, the extreme penalty”should be imposed only in extreme cases.

44.3.5. Aftertaking note of various circumstances projected beforeit, which could be of mitigating factors, and while observing that thescope and concept of mitigating factors in the area of death penaltymust receive a liberal and expansive construction, the Court proceededto uphold the constitutional validity of Section 354(3) CrPC, with theobservations that the legislature had explicitly prioritised life imprisonmentas the normal punishment and death penalty as being of exception, andwith enunciation of rarest of rare doctrine in the following words: - “209.....It is, therefore, imperative to voice the concern that courts,aided by the broad illustrative guide-lines indicated by us, willdischarge the onerous function with evermore scrupulous careand humane concern, directed along the highroad of legislativepolicy outlined in Section 354(3), viz., that for persons convictedof murder, life imprisonment is the rule and death sentence anexception. Areal and abiding concern for the dignity of human lifepostulates resistance to taking a life through law’s instrumentality.That ought not to be done save in the rarest of rare cases whenthe alternative option is unquestionably foreclosed.”

44.4. In fact, Bachan Singh (supra) judgment has been succinctlysummarised and its principles explained by another Constitution Benchof this Court in the case of Mithu v. State of Punjab: (1983) 2 SCC277 while dealing with the question of constitutional validity of Section303 IPC, which provided for death sentence as the mandatory punishmentfor a person who, being under sentence of imprisonment for life, wouldcommit murder. In the course of declaring the said provision containedin Section 303 IPC constitutionally invalid, the Constitution Bench dealtwith a large number of arguments; and one of them had been that thevalidity of death sentence had already been upheld in Bachan Singh(supra) and, therefore, such questions should not be allowed to raisetheir head over again. While pointing out the fallacy of this argument,the Constitution Bench explained as to what exactly had been the ratioof Bachan Singh in the following words: - “7.….The majority did not lay down any abstract proposition inBachan Singh that “death sentence is Constitutional”, that is tosay, that “It is permissible under the Constitution to provide forthe sentence of death”. To be exact, the question which arose forthe consideration of the Court was not whether, under the A

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Constitution, it is permissible to provide for the sentence of death.The precise question which arose in that case was whether Section302 of the Penal Code which provides for the sentence of deathas one of the two alternative sentences is valid. It may be recalledthat Section 302 provides for the sentence of death as analternative sentence which may be imposed. The normal sentencefor murder is life imprisonment; and if the death sentence has tobe imposed, the Court is under a legal obligation under Section354(3) of the Criminal Procedure Code to state the special reasonsfor imposing that sentence. That explains why, in Bachan Singh,Sarkaria J., who spoke for the majority, underscored the words“alternative” and “may” in paragraph 19 of the judgment, whilstobserving that the Penal Code prescribes death as an alternativepunishment to which the offender may be sentenced in casesrelating to seven kinds of offences. The majority concludedthat Section 302 of the Penal Code is valid for three main reasons:Firstly, that the death sentence provided for by Section 302 is analternative to the sentence of life imprisonment, secondly, thatspecial reasons have to be stated if the normal rule is departedfrom and the death sentence has to be imposed; and, thirdly,because the accused is entitled, under Section 235(2) of theCode of Criminal Procedure, to be heard on the question ofsentence.The last of these three reasons becomes relevant,only because of the first of these reasons. In other words, it isbecause the Court has an option to impose either of the twoalternative sentences, subject to the rule that the normalpunishment for murder is life imprisonment, that it is importantto hear the accused on the question of sentence….The ratio ofBachan Singh, therefore, is that, death sentence is Constitutionalif it is prescribed as an alternative sentence for the offence ofmurderandif the normal sentence prescribed by law for murderis imprisonment for life….”

44.5. Thereafter, in Machhi Singh (supra), a 3-Judge Bench ofthis Court, while considering a case where the appellant was convictedof orchestrating and executing a conspiracy, which resulted in the murderof as many as 17 people due to a family feud, explained the philosophypertaining to the death sentence in the following words: -

“32. …Every member of the community owes a debt to thecommunity for this protection. When ingratitude is shown insteadof gratitude by “killing” a member of the community whichprotects the murderer himself from being killed, or when thecommunity feels that for the sake of self-preservation the killerhas to be killed, the community may well withdraw the protectionby sanctioning the death penalty. But the community will not doso in every case. It may do so “in rarest of rare cases” when itscollective conscience is so shocked that it will expect the holdersof the judicial power centre to inflict death penalty irrespective oftheir personal opinion as regards desirability or otherwise ofretaining death penalty. The community may entertain such asentiment when the crime is viewed from the platform of themotive for, or the manner of commission of the crime.…”

44.5.1. The Court also explained the relevant propositions ofBachan Singh (supra) and the pertinent queries for applying thosepropositions in the following terms: - “38. In this background the guidelines indicated in Bachan Singhcase will have to be culled out and applied to the facts of eachindividual case where the question of imposing of death sentencearises. The following propositions emerge from Bachan Singhcase:

(i) The extreme penalty of death need not be inflicted exceptin gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances ofthe ‘offender’ also require to be taken into consideration alongwith the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is anexception. In other words death sentence must be imposedonly when life imprisonment appears to be an altogetherinadequate punishment having regard to the relevantcircumstances of the crime, and provided, and only provided,the option to impose sentence of imprisonment for life cannotbe conscientiously exercised having regard to the nature andcircumstances of the crime and all the relevant circumstances.

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(iv) A balance sheet of aggravating and mitigating circumstanceshas to be drawn up and in doing so the mitigating circumstanceshave to be accorded full weightage and a just balance has to bestruck between the aggravating and the mitigating circumstancesbefore the option is exercised.

B39. In order to apply these guidelines inter alia the followingquestions may be asked and answered:

(a) Is there something uncommon about the crime which renderssentence of imprisonment for life inadequate and calls for adeath sentence?

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(b) Are the circumstances of the crime such that there is noalternative but to impose death sentence even after accordingmaximum weightage to the mitigating circumstances whichspeak in favour of the offender?

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40. If upon taking an overall global view of all the circumstancesin the light of the aforesaid proposition and taking into account theanswers to the questions posed hereinabove, the circumstancesof the case are such that death sentence is warranted, the courtwould proceed to do so.”

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44.6. Another relevant decision to be noticed is that in the case ofSwamy Shraddananda (2) (supra). The said decision was renderedby a 3-Judge Bench of this Court in the backdrop that though a 2-JudgeBench of this Court upheld the conviction of the appellant of offencesFunder Sections 302 and 201 IPC but, one of the learned Judges felt thatin the facts and circumstances of the case, punishment of imprisonmenttill the end of the natural life of the convict would serve the ends ofjustice, whereas the other learned Judge was of the view that the appellantwas liable to the punishment of death. In keeping with the ever-progressingGcanons of penology, the 3-Judge Bench carved out a different course,being of not awarding death penalty but, of conditioning the sentence ofimprisonment for life with a rider that the convict shall not be releasedfrom the prison for the rest of his life. The Court explained the logic ofsuch sentencing, which overrides the availability of remission, in thefollowing terms: - H

“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 highly disproportionatelyinadequate. When an appellant comes to this Court carrying adeath sentence awarded by the trial court and confirmed by theHigh Court, this Court may find, as in the present appeal, that thecase just falls short of the rarest of the rare category and mayfeel somewhat reluctant in endorsing the death sentence. But atthe same time, having regard to the nature of the crime, the Courtmay strongly feel that a sentence of life imprisonment subject toremission normally works out to a term of 14 years would begrossly disproportionate and inadequate. What then should theCourt do? If the Court’s option is limited only to two punishments,one a sentence of imprisonment, for all intents and purposes, ofnot more than 14 years and the other death, the Court may feeltempted and find itself nudged into endorsing the death penalty.Such a course would indeed be disastrous. Afar more just,reasonable and proper course would be to expand the options andto take over what, as a matter of fact, lawfully belongs to theCourt i.e. the vast hiatus between 14 years’ imprisonment anddeath. It needs to be emphasised that the Court would takerecourse to the expanded option primarily because in the facts ofthe case, the sentence of 14 years’ imprisonment would amountto no punishment at all.

93. Further, the formalisation of a special category of sentence,though for an extremely few number of cases, shall have thegreat advantage of having the death penalty on the statute bookbut to actually use it as little as possible, really in the rarest of rarecases. This would only be a reassertion of the Constitution Benchdecision in Bachan Singh besides being in accord with the moderntrends in penology.”

44.7. We need not elongate this discussion by assembling variousother decisions rendered in variegated circumstances and factual matricesbut deem it appropriate to refer to the decision in the case of ShankarKisanrao Khade v. State of Maharashtra: (2013) 5 SCC 546, whereinthis Court surveyed a large number of cases on either side that is, wheredeath sentence was upheld/awarded or where it was commuted; and ABC

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Apointed out the requirement of applying ‘crime test’,‘criminal test’ and‘rarest of rare test’. This Court recounted, with reference to previousdecisions, the aggravating circumstances (crime test) and themitigatingcircumstances (criminaltest) as follows:-

49. In Bachan Singh and Machhi Singh cases, this Court laiddown various principles for awarding sentence: (RajendraPralhadrao case, SCC pp. 47-48, para 33)

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“‘Aggravating circumstances — (Crime test)

(1) The offences relating to the commission of heinous crimeslike murder, rape, armed dacoity, kidnapping, etc. by the accusedwith a prior record of conviction for capital felony or offencescommitted by the person having a substantial history of seriousassaults and criminal convictions.

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(2) The offence was committed while the offender was engagedin the commission of another serious offence.

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(3) The offence was committed with the intention to create afear psychosis in the public at large and was committed in apublic place by a weapon or device which clearly could behazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or likeoffences to receive money or monetary benefits.

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(5) Hired killings.

(6) The offence was committed outrageously for want only whileinvolving inhumane treatment and torture to the victim.

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

(8) The murder or the offence was committed to prevent aperson lawfully carrying out his duty like arrest or custody in aplace of lawful confinement of himself or another. For instance,Gmurder is of a person who had acted in lawful discharge of hisduty under Section 43 of the Code of Criminal Procedure.

(9) When the crime is enormous in proportion like making anattempt of murder of the entire family or members of a particularcommunity.

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(10) When the victim is innocent, helpless or a person reliesupon 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 evidencestotal depravity and meanness.

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

(13) The crime is committed so brutally that it pricks or shocksnot only the judicial conscience but even the conscience of thesociety.

Mitigating circumstances — (Criminal test)

(1) The manner and circumstances in and under which theoffence was committed, for example, extreme mental oremotional disturbance or extreme provocation in contradistinctionto all these situations in normal course.

(2) The age of the accused is a relevant consideration but not adeterminative factor by itself.

(3) The chances of the accused of not indulging in commissionof the crime again and the probability of the accused beingreformed and rehabilitated.

(4) The condition of the accused shows that he was mentallydefective and the defect impaired his capacity to appreciate thecircumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, wouldrender such a behaviour possible and could have the effect ofgiving rise to mental imbalance in that given situation likepersistent harassment or, in fact, leading to such a peak of humanbehaviour that, in the facts and circumstances of the case, theaccused believed that he was morally justified in committing theoffence.

(6) Where the court upon proper appreciation of evidence is ofthe view that the crime was not committed in a preordainedmanner and that the death resulted in the course of commissionof another crime and that there was a possibility of it beingconstrued as consequences to the commission of the primarycrime.

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(7) Where it is absolutely unsafe to rely upon the testimony of asole eyewitness though the prosecution has brought home theguilt of the accused.”

This Court further said:-

“52. Aggravating circumstances as pointed out above, of course,Bare not exhaustive so also the mitigating circumstances. In myconsidered view, the tests that we have to apply, while awardingdeath sentence are “crime test”, “criminal test” and the “R-Rtest” and not the “balancing test”. To award death sentence,the “crime test” has to be fully satisfied, that is, 100% and“criminal test” 0%, that is, no mitigating circumstance favouringCthe accused. If there is any circumstance favouring the accused,like lack of intention to commit the crime, possibility ofreformation, young age of the accused, not a menace to thesociety, no previous track record, etc. the “criminal test” mayfavour the accused to avoid the capital punishment. Even ifDboth the tests are satisfied, that is, the aggravating circumstancesto the fullest extent and no mitigating circumstances favouringthe accused, still we have to apply finally the rarest of the rarecase test (R-R test). R-R test depends upon the perception ofthe society that is “society-centric” and not “Judge-centric”,Ethat is, whether the society will approve the awarding of deathsentence to certain types of crimes or not. While applying thattest, the court has to look into variety of factors like society’sabhorrence, extreme indignation and antipathy to certaintypes of crimes like sexual assault and murder ofintellectually challenged minor girls, suffering fromFphysical disability, old and infirm women with those disabilities,etc. Examples are only illustrative and not exhaustive. The courtsaward death sentence since situation demands so, due toconstitutional compulsion, reflected by the will of the peopleand not the will of the Judges.”

(emphasis and extra emphasis supplied)

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44.8. It is also noteworthy that the said proposition of specialcategory of sentencing by way of life imprisonment sans remission wasagain a matter of debate and led to a reference to the Constitution Bench,which came to be answered in the case of Union of India v. V. SriharanHAlias Murugan and Ors.: (2016) 7 SCC1. There had been several questions referred to the Constitution Bench as regards the powers ofremission, but all those aspects need not be dilated herein. The aspectrelevant for the present purpose is that a majority of three Judgesapproved the ratio in Swamy Shraddananda (2) (supra) providing forspecial category of life sentence without remission. Though the minorityopinion concurred that imprisonment for life in terms of Section 52 readwith Section 45 IPC only meant imprisonment for the rest of the life ofthe convict, where the right to claim remission, commutation etc. asprovided under Article 72 or 161 of the Constitution of India would alwaysbe available but, did not concur with other part of the majority opinionapproving the aforesaid special category sentence with the reasoningthat such a course of providing mandatory period of actual imprisonmentwould be inconsistent with Section 433-A CrPC. The majority view,being the declaration of law by this Court, could be usefully noticed fromthe relevant question and its answer as follows: - “Question 52.1: Whether imprisonment for life in terms ofSection 53 read with Section 45 of the Penal Code meantimprisonment for rest of the life of the prisoner or a convictundergoing life imprisonment has a right to claim remissionand whether as per the principles enunciated in paras 91 to93 of Swamy Shraddananda (2), a special category ofsentence may be made for the very few cases where the deathpenalty might be substituted by the punishment ofimprisonment for life or imprisonment for a term in excess offourteen years and to put that category beyond application ofremission?

Answer

Answer

177. Imprisonment for life in terms of Section 53 read with Section45 of the Penal Code only means imprisonment for the rest of thelife of the convict. The right to claim remission, commutation,reprieve, etc. as provided under Article 72 or Article 161 of theConstitution will always be available being constitutional remediesuntouchable by the Court.

178. We hold that the ratio laid down in Swamy Shraddananda(2) that a special category of sentence; instead of death can besubstituted by the punishment of imprisonment for life or for aterm exceeding 14 years and put that category beyond applicationof remission is well founded and we answer the said question inthe affirmative.”

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A44.9. Before proceeding further, we may observe that withdevelopment of the law on sentencing procedure in accord with thedecisions aforesaid, one of the elements of mitigating factors namely,probability of reformation of the convict and his rehabilitation andreintegration into the mainstream society, has been given dueconsideration, rather extra weightage, as highlighted by various decisionsBof this Court. As an example, we may refer to the decision in RajendraPralhadrao Wasnik v. State of Maharashtra: (2019) 12 SCC 460,wherein the appellant was convicted of offences under Section 376(2)(f),377 and 302 IPC for rape and murder of a three-year-old girl on thebasis of circumstantial evidence and was sentenced to death. ThoughChis appeal to this Court was dismissed and review petition was alsodismissed but, his review petition was later on reopened and heard by a3-Judge Bench. This Court held that there was no hard and fast rule thatdeath sentence could not be awarded if conviction was based oncircumstantial evidence, but proceeded to commute death sentence intothat of life imprisonment after finding that the Trial Court and the HighDCourt did not consider various factors including the probability of thepetitioner to be reformed. This Court, inter alia, held as under: - “45. The law laid down by various decisions of this Court clearlyand unequivocally mandates that the probability (not possibility orimprobability or impossibility) that a convict can be reformed andErehabilitated in society must be seriously and earnestly consideredby the courts before awarding the death sentence. This is one ofthe mandates of the “special reasons” requirement of Section354(3) CrPC and ought not to be taken lightly since it involvessnuffing out the life of a person. To effectuate this mandate, it isFthe obligation on the prosecution to prove to the court, throughevidence, that the probability is that the convict cannot be reformedor rehabilitated. This can be achieved by bringing on record, interalia, material about his conduct in jail, his conduct outside jail if hehas been on bail for some time, medical evidence about his mentalmake-up, contact with his family and so on. Similarly, the convictGcan produce evidence on these issues as well.

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47. Consideration of the reformation, rehabilitation andreintegration of the convict into society cannot beoveremphasised. Until Bachan Singh, the emphasis given by the H

courts was primarily on the nature of the crime, its brutality andseverity. Bachan Singh placed the sentencing process intoperspective and introduced the necessity of considering thereformation or rehabilitation of the convict. Despite the viewexpressed by the Constitution Bench, there have been severalinstances… where there is a tendency to give primacy to thecrime and consider the criminal in a somewhat secondary manner.As observed in Sangeet[16 ]"In the sentencing process, both thecrime and the criminal are equally important.” Therefore, weshould not forget that the criminal, however ruthless he might be,is nevertheless a human being and is entitled to a life of dignitynotwithstanding his crime. Therefore, it is for the prosecution andthe courts to determine whether such a person, notwithstandinghis crime, can be reformed and rehabilitated. To obtain and analysethis information is certainly not an easy task but must neverthelessbe undertaken. The process of rehabilitation is also not a simpleone since it involves social reintegration of the convict into society.Of course, notwithstanding any information made available andits analysis by experts coupled with the evidence on record, therecould be instances where the social reintegration of the convictmay not be possible. If that should happen, the option of a longduration of imprisonment is permissible.”

45. Learned counsel for the appellant has cited a few decisionswith the submissions that in these cases, the death sentence was alteredto other sentence by this Court while applying the principle of ‘residualdoubt’. Though it is noticed that the cited decisions did not as such proceedon the theory of ‘residual doubt’ but, we may take note of the relevantfeatures of the cited decisions. It may, however, be observed that thecontentions relating to the theory of ‘residual doubt’ shall be adverted toa little later.

45.1. In the case of Viran Gyanlal Rajput (supra), the accusedwas convicted of the offences under Sections 302, 201 IPC and Sections10 and 14 POCSO, for kidnapping, rape and murder of a 13-year-old girland causing disappearance of evidence, and he was awarded deathsentence for the offence under Section 302 IPC. The case was basedon circumstantial evidence, with the incriminating circumstancesoperating against the appellant being that he was last seen with the 16 Sangeet and Anr. v. State of Haryana: (2013) 2 SCC 452.

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Adeceased while she was walking home from school; he was later seenrunning alone in the evening; the dead body and the incriminating articleslike clothes of the victim were recovered at his instance; mud stains onhis pants matched the mud stains seized from the spot; his failure toexplain the injuries found on his person; medical evidence showing thatthe victim had been forcibly raped and killed; hiding the dead body toBsuppress evidence; and failure of the appellant to offer a plausibleexplanation for the incriminating circumstances against him. Whileconfirming the conviction of the appellant under other provisions asalso the death sentence, the High Court set aside the conviction ofthe appellant under Section 10 POCSO. As regards death sentence,Cthis Court reiterated the principle that life imprisonment was the ruleand death sentence was the exception, which was to be imposedonly when the alternative of life imprisonment had been unquestionablyforeclosed. This Court found that even though the crime committedby the appellant was abominable, it could not be held to be fallingwithin the ‘rarest of rare’. This Court also found that the prosecutionDhad been unable to prove that the appellant could not be reformedand thus, commuted the sentence of death into that of imprisonmentfor life without scope of remission for 20 years. These findings of thisCourt could be usefully reproduced as under: -

E“25. Though we agree that the crime committed is of anabominable nature, it cannot be said to be of such a brutal,depraved, heinous or diabolical nature so as to fall into the categoryof the rarest of rare cases and invite punishment with death. Wealso find ourselves unable to agree with the view of the courtsthat the appellant is such a menace to society that he cannot beFallowed to stay alive. On the other hand, we are of the view thatthe prosecution did not establish that the appellant was beyondreform, especially given his young age. We are also mindful ofthe appellant’s lack of criminal antecedents prior to the commissionof this crime, and of his post-incarceration conduct, which in noGway suggests the impossibility of his reform. It would be pertinentto observe at this point that although the trial court noted his lackof remorse during the hearing, and the High Court noted his lackof remorse after committing the crime, as he was found calmlywandering around the locality, this does not in any way indicatethat there is no scope of reform for the appellant.H

26. Thus, neither the circumstances of the crime nor thecircumstances of the criminal i.e. the appellant, would go to showthat the instant matter falls into the category of the rarest of rarecases, or that the sentence of life imprisonment is unquestionablyforeclosed and grossly disproportionate. Therefore, in the totalityof the facts and circumstances of this case, we find it fit tocommute the death sentence of the appellant to life imprisonment.

27. At the same time, we are of the opinion that a sentence of lifeimprisonment simpliciter would not be proportionate to the gravityof the offence committed, and would not meet the need to respondto crimes against women and children in the most stringent mannerpossible. Moreover, though we have noticed above that thepossibility of reform of the accused is not completely precluded,we nevertheless share the concerns of the trial court and theHigh Court regarding the lack of remorse on behalf of the appellantand the possibility of reoffending. In such a situation, we deem itfit to restrict the right of the appellant to claim remission in hissentence of life imprisonment for a period of 20 years.”

45.2. In the case of Babasaheb Maruti Kamble (supra), theappellant was convicted of offences under Sections 302, 376(2)(f) and342 IPC and was awarded death sentence for the offence punishableunder Section 302 IPC. The said case also rested on circumstantialevidence which included the circumstances that the deceased girl waslast seen with the appellant; the dead body of the victim girl was found inhis house and under his bed; and slippers and clothes of the victim girlwere also recovered from his house along with bloodstained chadar;DNA and post-mortem examination report corroborated the prosecutioncase. Having found the conviction not calling for any interference, thisCourt took into account the factors that the appellant had reached theage of 60 years, had no criminal antecedents, there was likelihood ofreform and the respondent-State could not point out any blameworthyconduct by him in jail. Thus, this Court commuted the death sentenceinto that of life with a cap of 20 years’ imprisonment without remission.

45.3. In the case of Nand Kishore (supra), the accused-appellant,about 50 years of age, was convicted of the offences under Sections302, 363, 366 and 376(2)(i) IPC for kidnapping, rape and murder of an8-year-old girl. The case was based on circumstantial evidence wherePW-4, brother of the deceased girl, identified the appellant in Test A

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AIdentification Parade and categorically stated that the appellant tookaway the deceased from mela. The last seen evidence was corroboratedby PW-7. This Court upheld the conviction. As regards the question ofsentence, where the appellant had been sentenced to death, this Courtreferred, inter alia, to the enunciation in Swamy Shraddananda (2)(supra) and observed that the appellant was having no criminalBantecedents and was coming from a poor socio-economic background,where the local Bar Association refused to represent the appellant andhe was provided legal aid only on the day of framing of charge. ThisCourt also found that there was no finding recorded by the Courts belowthat the appellant could not be reformed. In the overall circumstances,Cthis Court commuted death sentence into life imprisonment with actualperiod of 25 years without any benefit of remission in the following: - “15. …So far as the present case is concerned, it solely rests oncircumstantial evidence. It is the specific case of the appellantthat he was denied the proper legal assistance in the matter andDhe is a manhole worker. The appellant was aged about 50 years.Further, in this case there is no finding recorded by the courtsbelow to the effect that there is no possibility of reformation ofthe 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) CrPC to imposeEdeath penalty on the accused.

16. Taking into account the evidence on record and the totality ofthe circumstances of the case, and by applying the test on thetouchstone of case law discussed above, we are of the view thatthe case on hand will not fall within the “rarest of rare” cases. InFthat 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; whileconfirming the conviction, recorded by the trial court, as confirmedby the appellate court, we modify the sentence to that of lifeGimprisonment with actual period of 25 years, without any benefitof remission. It is further made clear that sentences imposed forall offences shall run concurrently.”

45.4. The decision in the case ofSakru Mahagu Binjewar (supra)does not have any factual correlation with the case at hand except thatHtherein, this Court referred to the principles in Bachan Singh and Machhi Singh (supra) while pointing out that the same have been consistentlyfollowed by Courts depending on the facts and circumstances of eachcase as also that this Court has referred to the principles evolved inSwamy Shraddananda (2) (supra), as approved by the ConstitutionBench in V. Sriharan (supra). In that case, the High Court, whileupholding conviction under Section 302 IPC based on the evidence ofeye-witnesses, commuted the death sentence awarded to some of theaccused persons, inter alia, for the reasons that the accused felt theywere falsely implicated in a criminal case; and that there was no evidenceto suggest that the accused had a criminal record. In the given set offacts and circumstances, this Court found no ground to interfere withthe judgments under appeal.

46. Yet further, a few other decisions, relied upon by learnedcounsel for the respondent-State in support of his arguments could alsobe noticed as follows:

46.1. Kamta Tiwari (supra) was a case of rape followed bymurder of a 7-year-old girl by a person who was close to the family ofthe victim and the victim used to call him “Tiwari uncle”. The girl waskidnapped by the accused; was subjected to rape; was strangulated todeath; and then, the dead body was thrown into the well. The enormityof crime coupled with the misuse of trust weighed with this Court inconfirming the death sentence.

46.2. In Santosh Kumar Satishbhushan Bariyar (supra), thisCourt extensively dealt with three broad values emerging from BachanSingh (supra), that is, individualised sentencing, threshold of rarest ofrare, and principled sentencing and said, inter alia, as under: - “131. When the court is faced with a capital sentencing case, acomparative analysis of the case before it with other purportedlysimilar cases would be in the fitness of the scheme of theConstitution. Comparison will presuppose an identification of apool of equivalently circumstanced capital defendants. The gravity,nature and motive relating to crime will play a role in this analysis.

132. Next step would be to deal with the subjectivity involved incapital cases. The imprecision of the identification of aggravatingand mitigating circumstances has to be minimised. It is to be notedthat the mandate of equality clause applies to the sentencing processrather than the outcome. The comparative review must be A

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undertaken not to channel the sentencing discretion available tothe courts but to bring in consistency in identification of variousrelevant circumstances. The aggravating and mitigatingcircumstances have to be separately identified under a rigorousmeasure.

B133. Bachan Singh when mandates principled precedent-basedsentencing, compels careful scrutiny of mitigating circumstancesand aggravating circumstances and then factoring in a process bywhich aggravating and mitigating circumstances appearing fromthe pool of comparable cases can be compared. The weight whichis accorded by the court to particular aggravating and mitigatingCcircumstances may vary from case to case in the name ofindividualised sentencing, but at the same time reasons forapportionment of weights shall be forthcoming. Such a comparisonmay point out excessiveness as also will help repel arbitrarinessobjections in future. A sentencing hearing, comparative review ofDcases and similarly aggravating and mitigating circumstancesanalysis can only be given a go-by if the sentencing court opts forlife imprisonment.”

46.3. In the case of Vasanta Sampat Dupare (supra), wherethis Court dealt with the main appeals and thereafter, the review petitionsEand confirmed the death sentence for the offence under Section 302IPC, the accused had taken the victim girl on his bicycle when she wasplaying in the courtyard and was found to have raped and murdered her.The facts of the said case had been strikingly similar to the facts of thepresent case, where it was found that the accused raped the four-year-old victim girl, and battered and smashed her head by stones and killedFher.

46.3.1. In the main judgment dealing with the appeals in VasantaSampat Dupare[17], this Court examined all the circumstances, includingthe misuse of trust reposed by the girl in the accused; the factual matrixunfolding the premeditation, the proclivity and the rapacious desire; theGcrime speaking of depravity and degradation; the crime being diabolicaland barbaric; and less likelihood of reformation/rehabilitation of theconvict. Thus, this Court upheld the sentence of death while observingas under: -

“58. Presently, we shall proceed to dwell upon the manner in whichthe crime was committed. Materials on record clearly reveal thatthe appellant was well acquainted with the inhabitants of the localityand as is demonstrable he had access to the house of the fatherof the deceased and the children used to call him “uncle”. He hadlured the deceased to go with him to have chocolates. It is an actof taking advantage of absolute innocence. He had taken thedeceased from place to place by his bicycle and eventually rapedher in a brutal manner, as if he had an insatiable and ravenousappetite. The injuries caused on the minor girl are likely to send achill in the spine of the society and shiver in the marrows of humanconscience. He had battered her to death by assaulting her withtwo heavy stones. The injured minor girl could not have shownany kind of resistance. It is not a case where the accused had amomentary lapse. It is also not a case where the minor child haddied because of profuse bleeding due to rape but because of thedeliberate cruel assault by the appellant. After the savage actwas over, the coolness of the appellant is evident, for he washedthe clothes on the tap and took proper care to hide things. As ismanifest, he even did not think for a moment the trauma andtorture that was caused to the deceased. The gullibility andvulnerability of the four year girl, who could not have nurturedany idea about the maladroitly designed biological desires of thisnature, went with the uncle who extinguished her life-spark. Thebarbaric act of the appellant does not remotely show any concernfor the precious life of a young minor child who had really notseen life. The criminality of the conduct of the appellant is notonly depraved and debased, but can have a menacing effect onthe society. It is calamitous.

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60. In the case at hand, as we find, not only was the rapecommitted in a brutal manner but murder was also committed in abarbaric manner. The rape of a minor girl child is nothing but amonstrous burial of her dignity in the darkness. It is a crime againstthe holy body of a girl child and the soul of society and such acrime is aggravated by the manner in which it has been committed.The nature of the crime and the manner in which it has beencommitted speaks about its uncommonness. The crime speaks of A

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depravity, degradation and uncommonality. It is diabolical andbarbaric. The crime was committed in an inhuman manner.Indubitably, these go a long way to establish the aggravatingcircumstances.

61. We are absolutely conscious that mitigating circumstancesare to be taken into consideration. The learned counsel for theappellant pointing out the mitigating circumstances would submitthat the appellant is in his mid-fifties and there is possibility of hisreformation. Be it noted, the appellant was aged about forty-sevenyears at the time of commission of the crime. As is noticeable,there has been no remorse on the part of the appellant. There arecases when this Court has commuted the death sentence to lifefinding that the accused has expressed remorse or the crime wasnot premeditated. But the obtaining factual matrix when unfoldedstage by stage would show the premeditation, the proclivity andthe rapacious desire. The learned counsel would submit that theappellant had no criminal antecedents but we find that he was ahistory-sheeter and had a number of cases pending against him.That alone may not be sufficient. The appalling cruelty shown byhim to the minor girl child is extremely shocking and it getsaccentuated, when his age is taken into consideration. It was notcommitted under any mental stress or emotional disturbance andit is difficult to comprehend that he would not commit such actsand would be reformed or rehabilitated. As the circumstanceswould graphically depict, he would remain a menace to society,for a defenceless child has become his prey. In our consideredopinion, there are no mitigating circumstances.

62. As we perceive, this case deserves to fall in the category ofthe rarest of rare cases. It is inconceivable from the perspectiveof the society that a married man aged about two scores andseven makes a four-year minor innocent girl child the prey of hislust and deliberately causes her death. A helpless and defencelesschild gets raped and murdered because of the acquaintance ofthe appellant with the people of the society. This is not only betrayalof an individual trust but destruction and devastation of social trust.It is perversity in its enormity. It irrefragably invites the extremeabhorrence and indignation of the collective. It is an anathema tothe social balance. In our view, it meets the test of the rarest ofthe rare case and we unhesitatingly so hold.

63. Consequently, we dismiss the criminal appeals preferred bythe appellant and affirm the death sentence.”

46.3.2. In the review petitions, several other mitigatingcircumstances were projected before the Court including the qualificationsacquired by the accused during the pendency of the matter and theprobability of his reformation. This Court found that the aggravatingcircumstances, i.e., extreme depravity and barbaric manner of the crimeoutweighed the mitigating circumstances. Hence, while dismissing thereview petitions, this Court observed and concluded as under[18]: -

“21. The material placed on record shows that after the judgmentunder review, the petitioner has completed Bachelors PreparatoryProgramme offered by Indira Gandhi National Open Universityenabling him to prepare for Bachelor level study and that he hasalso completed the Gandhi Vichar Pariksha and had participatedin drawing competition organised sometime in January 2016. It isasserted that the jail record of the petitioner is without any blemish.The matter is not contested as regards Conditions (1), (2), (5), (6)and (7) as stated in para 206 of the decision in Bachan Singh,but what is now being projected is that there is a possibility of theaccused being reformed and rehabilitated. Though these attemptson part of the petitioner are after the judgment under review, wehave considered the material in that behalf to see if thosecircumstances warrant a different view. We have given anxiousconsideration to the material on record but find that the aggravatingcircumstances, namely, the extreme depravity and the barbaricmanner in which the crime was committed and the fact that thevictim was a helpless girl of four years clearly outweigh themitigating circumstances now brought on record. Having takenan overall view of the matter, in our considered view, no case ismade out to take a different view in the matter. We, therefore,affirm the view taken in the judgment under review and dismissthe present review petitions.”

47. In the case of Pappu (supra), after taking note of variousdecisions on the subject, we had summarised the principles evolved andnorms followed by the Courts in the matters involving capital punishment;and would iterate the same as under: - 18 The decision in review petitions reported as (2017) 6 SCC 631.

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A“41. It could readily be seen that while this Court has found itjustified to have capital punishment on the statute to serve asdeterrent as also in due response to the society’s call forappropriate punishment in appropriate cases but at the same time,the principles of penology have evolved to balance the otherobligations of the society, i.e., of preserving the human life, be itBof accused, unless termination thereof is inevitable and is to servethe other societal causes and collective conscience of society.This has led to the evolution of ‘rarest of rare test’ and then, itsappropriate operation with reference to ‘crime test’ and ‘criminaltest’. The delicate balance expected of the judicial process hasCalso led to another mid-way approach, in curtailing the rights ofremission or premature release while awarding imprisonment forlife, particularly when dealing with crimes of heinous nature likethe present one.”

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48. As regards the theory of ‘residual doubt’, which has beenheavily relied upon by the learned senior counsel for the appellant, wemay usefully reiterate that nothing of any so-called ‘residual doubt’ theorywas referred to or applied in the cases cited by the learned counsel.Rather, in the case of Sakru Mahagu Binjewar(supra), the propositionEfor extending benefit of doubt was rejected by this Court with referenceto the overwhelming and unimpeachable evidence on record. Be that asit may, we may profitably refer to the relevant decisions to point out theapproach of this Court towards this theory as also the fact that thepropositions about inapplicability of this theory have been clearly statedin the later decisions, as discussed infra.F

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48.1. In the case of Ravishankar Alias Baba Vishwakarma v.State of Madhya Pradesh: (2019) 9 SCC 689, a 3-Judge Bench ofthis Court re-affirmed the conviction of the appellant of offences ofkidnapping, rape, and resultant death of a 13-year-old girl and destructionof evidence. The case had been that of circumstantial evidence and onGthe question of sentence, this Court examined as to whether deathsentence was justified. Though this Court made it clear that even in thecase where conviction is based on circumstantial evidence, capitalpunishment could be awarded but then, proceeded to observe that thisCourt had been increasingly applying the theory of ‘residual doubt’, whichHeffectively create a higher standard of proof over and above the “beyond reasonable doubt” standard used at the stage of conviction,as a safeguard against routine capital sentencing, keeping in mindthe irreversibility of death. Applying this theory and indicating certain‘residual doubts’, it was held that the said case fell short of ‘rarest ofrare’ category; and the death sentence was commuted into one of lifefor the remainder of the natural life of the convict.

48.2. However, in Shatrughna Baban Meshram v. State ofMaharashtra: (2021) 1 SCC 596, another 3-Judge Bench of this Courtconsidered an appeal against conviction and award of death sentencefor rape and murder of a 2½-year-old girl by her maternal uncle. On thequestion of sentencing, 67 cases decided by the Supreme Court over thepast 40 years were noticed; and it was observed that when the offenceswere of Sections 376 and 302 IPC, and the age of the victim was under16 years, death sentence was confirmed in 15, but in 3 of them, thesentence was later on commuted to life in review. Hence, in only 12 outof the 67 cases the death sentence was confirmed. As regards the guidingfactors, it was held that death penalty was not entirely impermissible tobe awarded in circumstantial evidence cases but the circumstantialevidence ought to be of unimpeachable character with option of lessersentence foreclosed. The Court also examined the theory of ‘residualdoubt’ and, after a survey of the decisions of this Court and those of theU.S. Supreme Court, opined against the applicability of this theory in thefollowing passages: - “75.4. These features are only illustrative to say that the theoryof “residual doubt” that got developed was a result of peculiarityin the process adopted. Even then, what is material to note is thatthe theory has consistently been rejected by the US SupremeCourt and as stated by O’Connor, J.: “Nothing in our casesmandated the imposition of this heightened burden of proofat capital sentencing.”

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77. When it comes to cases based on circumstantial evidence inour jurisprudence, the standard that is adopted in terms of law laiddown by this Court as noticed in Sharad Birdhichand Sardaand subsequent decisions is that the circumstances must not onlybe individually proved or established, but they must form aconsistent chain, so conclusive as to rule out the possibility of anyother hypothesis except the guilt of the accused. On the strength A

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Aof these principles, the burden in such cases is already of a greatermagnitude. Once that burden is discharged, it is implicit that anyother hypothesis or the innocence of the accused, already standsruled out when the matter is taken up at the stage of sentenceafter returning the finding of guilt. So, theoretically the concept ortheory of “residual doubt” does not have any place in a case basedBon circumstantial evidence. As a matter of fact, the theory ofresidual doubt was never accepted by the US Supreme Court asdiscussed earlier.”

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C48.2.1. This Court also referred to some of the decisions of thisCourt where the said theory of ‘residual doubt’ was referred to, includingthat in Ashok Debbarma Alias Achak Debbarma v. State of Tripura:(2014) 4 SCC 747, and it was pointed out that those ‘matters wereconsidered from the standpoint of individual fact situation where,going by the higher or stricter standard for imposition of deathDpenalty, alternative to death sentence was found to be appropriate’.[19]

48.3. We may also observe that the theory of ‘residual doubt’was previously suggested before us in the case of Pappu (supra) but, inthat case, it was not considered necessary to dilate much on this aspectbecause a strong case for commuting death sentence intothatofEimprisonment for life was nevertheless made out with the mitigatingfactors of probability of reformation and rehabilitation of the convict andhis satisfactory jail conduct. However, we had indicated, with referenceto the aforesaid decision in the case of Shatrughna Baban Meshram,as follows:- F

“43.2. Having said so, we may observe that so far as the otherarguments on behalf of the appellant, with reference to the theoryof ‘residual doubt’, are concerned, in the later 3-Judge Benchdecision of this Court in Shatrughna Baban Meshram (supra),it was observed that the said theory, developed as a result ofGpeculiarity in the process adopted in U.S. jurisdictions, has notfound favour even by the U.S. Supreme Court. We need not dilateon this aspect any further in thepresent case for the simple reasonthat the strong mitigating factor ofprobability of reformation andrehabilitation, particularly with reference to the antecedents and H19 Vide paragraphs 76 to 76.4 of the said decision in Shatrughna Baban Meshram.

background of the appellant coupled with his satisfactory jailconduct, make out a case for communing death sentence into thatof imprisonment for life.”

48.4. For what has been discussed hereinabove and to put therecord straight, we deem it appropriate to observe that in the case basedon circumstantial evidence, the conclusion of guilt is recorded only afterthe circumstances are found to be forming an unbreakable chain, soconsistent as to rule out any other hypothesis except the guilt of theaccused. These being stringent norms, as followed consistently by theCourts based on the panchsheel principles expounded in SharadBirdhichand Sarda (supra), and requirement being of the proof of thecase beyond reasonable doubt, theoretically there is no scope for any‘residual doubt’ operating even in the cases of circumstantial evidence.The cases in which theory of residual doubt has at all been referred, hadbeen standing on their own facts, where alternative to death sentencewas considered appropriate. However, while taking up the matter forsentencing, it is not expected to reopen the chain of circumstantialevidence to find any weak link which may fall in the category of residualdoubt. Needless to reiterate that if at all any such doubt is reasonablyexisting, the very basis of conviction would be in question. To put it inother words, after the final conclusion on the guilt and after pronouncingconviction, no concept of residual doubt as such is available for the purposeof sentencing.

49. However, even when we find no reason to proceed on thetheory of residual doubt, the question of sentence in the present casehas to be determined in accordance with sentencing principles enunciatedby the Constitution Bench in Bachan Singh (supra) and the principles/norms further evolved by this Court in the other decisions, as noticedhereinbefore with the requirements of close analysis of ‘crime test’,‘criminal test’ and ‘rarest of rare test’.

The crime and criminal tests: Aggravating and Mitigatingcircumstances of the present case

50. Keeping the aforesaid principles in view, we need to examinethe material facts as also all the relevant factors and circumstancesfor determining the question as to whether the capital punishmentawarded to the appellant be maintained or be substituted by any otherpunishment?

A

B

C

D

E

F

G

H

A50.1. Before examining the material facts and the relevantcircumstances, we may observe that so far the Trial Court is concerned,it had scrupulously carried out its duty in terms of Section 235(2) CrPC.The judgment of conviction was pronounced on 28.09.2013 and thequestion of sentence was taken up 3 clear days later, i.e., on 01.10.2013;and the death sentence was awarded only after duly hearing the accused-Bappellant, after duly taking into consideration the aggravating andmitigating factors, and while duly recording special reasons.

50.2. The heinous nature of the crime, like that of the present one,in brutal rape and killing of a mentally and physically challenged girl,who was only about seven-and-a-half-year-old,definitely carriesCexcessively aggravating circumstances, particularly when the mannerof commission of both the major offences of rape and murder showsdepravity of highest order and would ex facie shock anyone’s conscience.The horrific manner of killing the victim, by causing ghastly head injurieshad been nothing less than beastly conduct of the appellant. However,Das noticed, gruesome nature of the action and the crime, by itself, maynot be decisive, particularly as regards the question of capital punishment.Thus, we need to cautiously examine the other relevant factors,particularly those of the tests pertaining to the criminal himself.

50.3. Undoubtedly, the appellant was 28 years of age at the timeEof commission of crime and was having family comprising of his wife,an eight-year-old daughter and parents. He is not shown to be comingfrom any affluent background but, at the same time, it is also not shownif he comes from a very poor socio-economic background. Taken as awhole, these factors of the age, family and socio-economic backgroundof the appellant are not so clinching as to overwhelm and override theFaggravating factors.

50.3.1. Then, the pertinent question is as to whether there exists areasonable probability of reformation and rehabilitation of the appellant?If the answer to this material question is in the affirmative, it may havebearing upon the test to find if the case falls in rarest of rare category.GBut, if there are factors which operate against affirmative answer tothis question on the probability of reformation and rehabilitation, theaggravating circumstances would assuredly outweigh the mitigatingcircumstances warranting capital punishment.

50.4. In regard to the above, the facts emerging from record areHas follows:

50.4.1. It is noticed that before the Trial Court, a suggestion wasmade while pleading leniency for the appellant, that it was his first offence.This suggestion, however, does not appear to be correct. It is noticeablefrom the contents of the charge-sheet that in the process of residenceverification, it was found that the appellant was hailing from villageBasantpur, Police Station Gugli, District Maharajganj, Uttar Pradesh;and it came to the light that he had had a history of criminal cases inasmuchas, he was charge-sheeted in Case No. 69 of 2011 of Police StationShambhupura, District Chittorgarh for offence under Section 3 ofPrevention of Damage to Public Property Act, 1984 and 307 IPC. Hewas also involved in Police Station Kankroli[20] Case Nos. 78 of 2012 and79 of 2012 for offence under Section 379 IPC; and in Police StationRajnagar Case No. 428 of 2012 for offence under Section 379 IPC.

50.4.2. There is another crucial fact having direct co-relation andconnection with the present case itself, which emanates from the statementof PW-23 Ramdev Regar, Sub-Inspector, Police Line, Rajsamand. Hetestified to the fact that on 14.01.2013, a written report about the theft ofHero Honda Passion Plus motorcycle bearing registration No. RJ30 3M5944 was filed at Police Station Nathdwara, whereupon, FIR bearing No.39 of 2013 was registered for offence under Section 379 IPC againstunknown person. Significantly, the said motorcycle bearing registrationNo. RJ30 3M 5944 was the same one which was used by the appellant inthe present crime. This motorcycle was recovered near the scene of crimeat the information of the appellant; and bloodstains were also collectedtherefrom; and DNA profile of those bloodstains matched the DNA profileof the blood samples of the victim girl.

50.5. Thus, the facts surfacing on record make it clear that thecrime in question was not the singular criminal activity of the appellant.The antecedents of the appellant depict a person whose conduct had notbeen free from blemish and, in any case, he committed the crimes ofkidnapping as also murder of the victim girl with the use of a vehiclewhich did not belong to him but was a stolen one[21]. In other words, thepast of the appellant before the present case had been of involvement incriminal cases; and abhorrent crimes of the present case were committedby him with the aid of a stolen vehicle. These facts and factors magnifythe aggravating circumstances manifold.

20 The same police station which has dealt with the present case.

21 As per the evidence of PW-23 Ramdev Regar, the report about theft of the motorcyclein question was lodged at Police Station Nathdwara on 14.01.2013 i.e., 3 days beforethe incident of the present case.

ABCDE

FG

H

A51. In view of what has been noticed hereinabove, the net resultof crime test and criminal test could be summarised as follows: Thepresent case had been of extreme inhumane acts and actions of theappellant where, amongst other offending acts and actions, he (1)kidnapped the victim girl, who was only 7½ years of age, who was evenotherwise a mentally and physically challenged child, with betrayal ofBtrust when the victim girl got lured with confectionary items given byhim; (2) brutally raped the victim girl, as noticeable from the gruesomeinjuries on and around her private parts and as established by the medicalofficers who conducted post-mortem; and (3) mercilessly killed the victimgirl by causing horrid injuries on her head, as established not only by theCdoctors but also by the surrounding facts, including bloodstains on thescene of crime, on the motorcycle, and on the clothing of the appellant atthe time of his arrest. On the personal score, even though the appellantwas about 28 years of age and was having the family of wife, a daughterwho was also about 8 years of age and aged parents, he was continuouslyinvolved in criminal activities. Even if the other past cases are left aside,Dhe committed the crimes in question by using a stolen motorcycle.Unfortunately, the matter does not end here.

51.1. The tremors thrown by the appellant to shock anyone’sconscience with his beastly conduct have not stopped even with thisinhumane crime and even after his conviction.E

52. As noticed, in a substantial number of cases, when nothingfurther exacerbates the crime in question, the Courts have refrainedfrom awarding or approving death sentence even in the cases of gruesomekillings, essentially on the premise that even a semblance of probabilityof reformation of the convict ought to be given a chance, rather thanFawarding capital punishment, which is of irretrievable nature. In thisregard, the jail conduct of the convict carries its own bearing andrelevance in the overall consideration; and this Court has leaned in favourof commuting the sentence of death to that of imprisonment for life incase of unblemished jail conduct, even if the crime itself had been ofGgruesome or abhorrent nature[22]-[23]. However, in the present case, the 22 The case of Pappu v. The State of Uttar Pradesh:Criminal Appeal Nos. 1097-1098of 2018 decided on 09.02.2022 by us is directly an illustration of this approach where,despite finding it to be similar case of gruesome rape and murder of a seven-year-old girlchild, we found the unblemished jail conduct coupled with other circumstances indicatingHthe probability of reformation of the convict and hence, commuted the death sentence further shocking and disturbing factor is that even while in jail, theappellant’s conduct has not been free from blemish where, apart fromquarrelling with other inmate on 17.04.2015 and earning 7 days’punishment, the appellant had been accused and convicted of the offenceof yet another murder, this time of a co-inmate of the jail, while joininghands with three other inmates.

53. At this juncture, we may again point out that the fact regardingthe appellant’s involvement in another murder while being in jail and hisconviction of the offence under Section 302/34 IPC came to be statedonly in the written submissions filed on behalf of the respondent-Stateafter conclusion of hearing. Such a fact having not been specified duringthe course of hearing, we posted the matter for further directions and,on 14.02.2022, the State was directed to place the relevant facts onrecord with affidavit of the officer concerned. In compliance thereof, anaffidavit of Rakesh Mohan Sharma, Superintendent, Central Jail, Jaipurhas been filed and a copy of judgment and order dated 10.01.2020 inSessions Case No. 204 of 2019 by the Court of Special Judge (Preventionof Sati) and Additional Sessions Judge, Jaipur Metropolitan has also beenfiled. A perusal of the material placed on record makes it clear that theappellant, with three other jail inmates, has been convicted by the TrialCourt of the offence under Section 302/34 IPC for murder of anotherjail inmate, who was a Pakistani national in the high security cell of theprison; and that the appellant has been awarded the sentence ofimprisonment for life. Though it has been pointed out that an appealagainst the said decision is pending and we would not be making anycomments on the merits of that case at all but, the appellant’s culpableconduct in jail compels us to ponder over the question as to whether itwould be realistic to believe on the probability of his reformation andrehabilitation yet.

into that of imprisonment for life but with stipulations of his undergoing actualimprisonment for a period of 30 years.

23 The case of Veerendra v. State of Madhya Pradesh: Criminal Appeal Nos. 5-6 of2018 decided on 13.05.2022 by us is another direct illustration of this approachwhere, despite finding it to be similar case of gruesome rape and murder of an eight-year-old girl child, who was daughter of the cousin of the convict, we observed that theconvict’s unblemished jail conduct coupled with other mitigating circumstances wouldnot go unnoticed; and probability of reformation and rehabilitation of the convict wasnot ruled out. Hence, we again adopted the course of commuting the death sentence intothat of imprisonment for life with stipulations of actual imprisonment for a period of30 years.

A

B

C

D

E

F

G

H

A54. We may also observe that even though rarest of rare doctrineand its accompanying principles, as enunciated and explained in BachanSingh and Machhi Singh (supra), have been almost uniformly appliedby Courts in the country while dealing with the question of sentencingwhen the statute provides for death penalty; and over the time, even theproposition of larger/longer term of actual imprisonment with no remissionBor curtailed remission has also evolved but, it has never been the effortof the Courts to somehow make this punishment (sentence of death)redundant and non-existent for all practical purposes. The quest for justicein such cases, with death sentence being awarded and maintained onlyin extreme cases, does not mean that the matter would be approachedCand examined in the manner that death sentence has be avoided, even ifthe matter indeed calls for such a punishment. The judicial process, inour view, would be compromising on its objectivity if the approach is tonullify the statutory provision carrying death sentence as an alternativepunishment for major offences (like that of Section 302 IPC), even afterit has passed muster of judicial scrutiny and has been held notDunconstitutional. The pursuit in collecting mitigating circumstances couldalso not be taken up with any notion or idea that somehow, some factorbe found; or if not found, be deduced anyhow so that the sentence ofdeath be forsaken. Such an approach would be unrealistic, unwarrantedand rather not upholding the rule of law.E

55. An attempt has been made to suggest on behalf of the appellantthat his overall conduct in prison is without any blemish except theallegation of his involvement in a case of murder. We could only wonderwhat more of criminal activity would qualify as blemish, if not theinvolvement and conviction in a case of murder of a fellow jail inmate!FThis is apart from the other 7 days’ punishment earned by the appellantfor quarrelling with another jail inmate.

56. We may also take into account another suggestion made onbehalf of the appellant that his psychological evaluation report may becalled.G56.1. In the case of Anil @ Anthony Arikswamy Joseph v. Stateof Maharashtra: 2014 (4) SCC 69, this Court observed that inappropriate cases, after conviction, the Court may call for report todetermine whether the accused could be reformed or rehabilitated; andit would depend on the facts and circumstances of each case[24]. Again,

there cannot be any universal formula for calling for a report in terms ofthe said decision in Anil. For example, in the present case, where theappellant is found to be indulging incessantly in criminal activities beforethe crime in question; has carried out gruesome deeds of the presentcrime; has further been involved in questionable jail conduct, includingquarrelling with a fellow inmate and earning 7 days’ punishment; andthen, to cap it all, has been involved in an offence of no less degree thanmurder of another jail inmate, calling for any further report of the likelihoodof reformation and rehabilitation of the appellant could be proposed onlyif the judicial process is determined to annul the death sentence altogether,by finding one way or the other to avoid the same in every case. Such anapproach would be counter-productive to the entire system ofmaintenance of order in the society; and could be countenanced only ifwe would be inclined to think that whatever be the society’s cry forjustice, the statutory provision of death sentence should itself be givenits interment or burial. Obviously, this approach would be squarely contraryto the statutory mandates as also the principles enunciated by multipleConstitution Bench decisions of this Court; and would strike at the rootsof the rule of law. In the given set of circumstances of this case, thesuggestions about calling for any so-called psychological evaluation reportcould only be termed as impractical and unrealistic and could only berejected.

57. In the present case, where all the elements surrounding theoffence as also all the elements surrounding the offender cut across thebalance sheet of aggravating and mitigating circumstances, we are clearlyof the view that there is absolutely no reason to commute the sentenceof death to any other sentence of lesser degree. Even the alternative ofawarding the sentence of imprisonment for whole of the natural life withno remission does not appear justified in view of the nature of crimescommitted by the appellant and looking to his incorrigible conduct.

58. We may sum up thus: In the case of the present nature, thecrime had been of extreme depravity, which shocks the conscience,particularly looking to the target (a seven-and-a-half-year old mentallyand physically challenged girl) and then, looking to the manner ofcommitting murder, where the hapless victim’s head was literally smashed,resulting in multiple injuries including fracture of frontal bone. This isapart from the facts that the innocent victim was kidnapped on a stolenmotorcycle by misusing the trust gained by offer of confectionary itemsand also, apart from the fact that she was brutally and inhumanly raped.

ABCD

EF

G

H

ABCD

EF

G

H

ATaking up the test parameters pertaining to the criminal (i.e., the appellant),of course, he has a family with wife and minor daughter and aged fatherand the crime was committed when he was only 28 years of age.However, these mitigating factors are pitted against several other factorspertaining to the appellant himself. One, being of his activities and actionsbefore the present crime where he was found involved in at least fourBcases with offences ranging from Section 3 of Prevention of Damage toPublic Property Act, 1984, Section 379 IPC and even 307 IPC. Second,being the fact that the present crime itself was carried out with the aidof a stolen motorcycle. Third, and crucial one being his conduct post-conviction where he not only earned 7 days’ punishment in jail forCquarrelling with a co-inmate but he has been convicted of the offence ofmurder of another jail inmate. Read as a whole, the fact-sheet concerningthe appellant leads only the logical deduction that there is no possibilitythat he would not relapse again in this crime if given any indulgence. Afortiori, there appears no probability of his reformation and rehabilitation.This possibility of the appellant relapsing in the same crime over againDand nil probability of his reformation/rehabilitation is a direct challengeas also danger to the maintenance of order in the society. Hence, thefacts of the present case, taken as a whole, make it clear that it is unlikelythat the appellant, if given an absolution, would not be capable of andwould not be inclined to commit such a crime again. Consequently, weEfind it to be a case of no other option but to confirm the death sentenceawarded to the appellant, for that being inevitable in this particular case.

59. Before concluding on this matter, we deem it appropriate toput on record our appreciation for the learned senior counsel appearingin legal aid for the appellant who, despite having a tough brief to handle,Fhas attempted his best to espouse the cause of the appellant.

Conclusion

60. Accordingly, these appeals are dismissed; conviction of theappellant of offences under Sections 363, 365, 376(2)(f), 302 of the IndianPenal Code, 1860 and Section 6 of the Protection of Children from SexualGOffences Act, 2012 is confirmed; and the sentences awarded to theappellant, including the death sentence for the offence under Section302 of the Indian Penal Code, 1860, are also confirmed.

Bibhuti Bhushan BoseH(Assisted by : Rakhi, LCRA)

Appeals dismissed.