DATTATRAYA @ DATTA AMBO ROKADE versus THE STATE OF MAHARASHTRA on 21 February 2019

[2019] 11 S.C.R. 295

DATTATRAYA @ DATTA AMBO ROKADE

v.

THE STATE OF MAHARASHTRA

(Criminal Appeal Nos. 1110-1111 of 2015)

FEBRUARY 21, 2019

[N. V. RAMANA, DEEPAK GUPTA AND

INDIRA BANERJEE, JJ.]

Penal Code, 1860: ss. 302, 376(2)(f), 377, 363, 364, 367and 201 r/w ss. 3,4,5 (i) (l) and (m) of the Protection of Childrenfrom Sexual Offences Act, 2012 – Rape and murder of minor child– Conviction by trial court – Death sentence – High Court confirmedthe conviction and sentence – Appeal to Supreme Court – Held:In view of the forensic reports along with extra-judicial confessionmade by the accused, conviction upheld – However, there is nomaterial to show that the intention of the accused was to kill thevictim – There is also no evidence to show any diabolic planningby the accused to commit the crime or that the murder was pre-meditated – Therefore, the case does not fall in the category ofrarest of rare cases – The accused was also not defended effectivelybefore the courts below – The accused neither sought nor was giventhe opportunity to place on record mitigating circumstances – Trialcourt imposed the extreme penalty of death sentence withoutconsidering as to whether there was no alternative to death sentenceor that in absence of death sentence, the accused would be threatto society or whether the accused could be reformed – The accusedhas been denied an effective and meaningful hearing on the questionof sentence u/s. 235(2) Cr.P.C.– Therefore death sentence iscommuted to sentence of life imprisonment – Considering theheinous, revolting, abhorrent and despicable nature of the crime,accused is directed to undergo imprisonment for life, till his naturaldeath without any remission of sentence – Sentence/Sentencing –Death sentence – Code of Criminal Procedure, 1973 – s. 235(2).

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ACode of Criminal Procedure, 1973:

s. 235(2) – Scope of – Held: Provision u/s. 235(2) is not amere formality and should be obeyed in letter and spirit – It isobligatory on the part of the trial Judge to hear the accused on thequestion of sentence and deal with it – For effective hearing u/s.B235(2) the suggestion that the court intends to impose death penaltyshould specifically be made to the accused, so as to enable theaccused to make effective representation against death sentence,by placing mitigating circumstances before the Court – Even if suchissues are not raised on behalf of accused, the court is obliged onits own to elicit facts relevant to the question of existence ofCmiltigating circumstances – Sentence/Sentencing.

Sentence/Sentencing:

Life imprisonment – Length of incarceration – Determinationof – Held: It is open to the Court to prescribe the length ofDincarceration, especially in cases where death sentence has beenreplaced by life imprisonment.

Life imprisonment – Length of incarceration – Held: Lifeimprisonment means imprisonment for entire life.

Allowing the appeals, the CourtE

HELD : 1. Even though, there is nothing in the evidenceof any of the witnesses, except the evidence of PW-12 and PW-18 and the weak evidence of the PW Nos. 4 and 5 purported tobe corroborated by PW-10, to prove the accused-appellant guiltyof the offences alleged, the forensic reports along with the extra-Fjudicial confession made by the accused-appellant to his wife PW-18, clearly establishes the guilt of the accused-appellant. Theexamination of the reports of the Directorate of ForensicLaboratories, being Ex. No. 22 to 25 and in particular theexamination report in Ex.25 indicates that DNA profile of theblood detected on the plastic bag and the clothes and thoseGobtained from the nails of the victim are identical and are fromone and the same source of female origin. The DNA profile ofsemen detected on the underwear (Bermudas), the bedsheet,vaginal swab and anal swab of the victim are identical and from H

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one and the same source of male origin. The DNA analysisestablishes beyond reasonable doubt that the victim was rapedby the accused-appellant. Therefore, the conviction of theaccused-appellant for the offences under Sections 302, 376(2)(f),377 of the IPC read with Sections 3, 4 and 5 of the POCSO isconfirmed. [Paras 85, 86 and 96] [322-B-E; 324-G]

2.1 In the present case, there is no evidence at all of anydiabolic planning to commit the crime though the crime wasundoubtedly cruel and heinous. The circumstances in which thevictim entered the tenement of the accused-appellant are notknown. There is no evidence to show that the accused-appellanttook the victim to his tenement. Though unlikely, she mighteven have gone to his tenement on her own. [Para 122] [336-E]

2.2 As a mature man, over fifty years of age, the accused-appellant should have known that the rape of a five year old childby an adult was dangerous and could lead to such injuries, as wasin all probability likely to cause death. The death of the deceasedvictim was not caused under any provocation, not to speak ofsudden provocation. No such defence has been taken by theaccused-appellant. Nor is it anybody’s case that the death wascaused in legitimate exercise in good faith of any right of theaccused-appellant, whether of private defence or otherwise. Thetotality of the injuries support the finding of the Trial Court andthe First Appellate Court that the accused-appellant murderedthe deceased victim. Though the act of the accused squarelyamounts to rape and murder, there is not a scrap of material toshow that the intention of the accused-appellant was to kill theminor child. [Paras 125, 126 and 127] [337-B-D]

2.3 The doctor who had prepared the post mortem reportopined that the cause of death was asphyxia due to smothering,associated with head injuries and sexual assault. He deposedthat all the 5 injuries were possible by repeated sexual acts andforceful penetration. He opined that all the injuries were sufficientto cause instant death in the ordinary course. However, in viewof the evidence of the post mortem report it would be appropriateto modify the sentence by reducing the same to imprisonmentfor life. [Paras 128 and 130] [337-E, H]

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A2.4 There can be no doubt that rape and murder of a 5 yearsold girl shocks the conscience. It is barbaric. There is, however,no evidence to support the finding that the murder was pre-meditated. The petitioner did not carry any weapon. The possibilitythat the accused-appellant might not have realized that his actcould lead to death cannot altogether be ruled out. Moreover,Bthe Trial Court has apparently not considered the question ofwhether the crime is the rarest of rare crimes. [Para 131][338-A-B]

2.5 The present case does not fall in the category of therarest of rare cases. Moreover, the accused-appellant was notCdefended effectively. The lawyer representing the accused-appellant only pleaded not guilty, emphasizing that there was noeye witness to the incident and sought leniency only on the groundof the age of the accused-appellant which was 53 years. Theaccused-appellant neither sought nor was given the opportunity Dto file any affidavit placing on record relevant mitigatingcircumstances. The legal assistance availed by the accused-appellant was patently not satisfactory and he was not accompaniedby a social worker. No attempt was made to place on recordmitigating circumstances. No argument was advanced to the effectthat there was no similar case against the accused-appellant.E[Paras 136 and 137] [338-G-H; 339-A-B]

2.6 Considering the nature of the crime against a five yearold child, the Trial Court imposed the extreme penalty of deathwithout deciding the question of whether there was no alternativeto imposing death sentence on the accused-appellant. There isFno finding that in the absence of death sentence, the accused-appellant would continue to be a threat to the society. Thequestion of whether the accused-appellant could be reformed,had not at all been considered. [Para 138] [339-C]

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

Rajesh Kumar v. State (through Govt. of NCT of Delhi)(2011) 13 SCC 706 Machhi Singh & Others v. State ofPunjab (1983) 3 SCC 470 : [1983] 3 SCR 413 ;Santosh Kumar Satishbhushan Bariyar v. State of H

Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;Ajay Pandit and Another v. State of Maharashtra (2012)8 SCC 43 : [2012] 10 SCR 70 ; Mohinder Singh v.State of Punjab (2013) 3 SCC 294 : [2013] 3 SCR 90 ;Panchhi and Others v. State of U.P. (1998) 7 SCC177 : [1998] 1 Suppl. SCR 40 ; Bantu v. State of M.P.(2001) 9 SCC 615 ; Amit v. State of Maharashtra (2003)8 SCC 93 : [2003] 2 Suppl. SCR 285 ; Rahul v. State ofMaharashtra (2005) 10 SCC 322 ; Surendra PalShivbalakpal v. State of Gujarat (2005) 3 SCC 127 :[2004] 4 Suppl. SCR 464 ; Mukesh and Another v. State(NCT of Delhi) and Others (2017) 3 SCC 717 ; Mohd.Manan @ Abdul Mannan v. State of Bihar2019 AIR 2934 Haru Ghosh v. State of West Bengal(2009) 15 SCC 551 : [2009] 13 SCR 847 ; Lehna v.State of Haryana (2002) 3 SCC 76 : [2002] 1 SCR377 ; Rajendra Prahladrao Wasnik v. State ofMaharashtra Review Petition (Crl.) No. 306-307 of2013 – relied on.

3.1 Section 235(2) CrPC is not a mere formality. It isobligatory on the part of the trial Judge to hear the accused onthe question of sentence and deal with it. The mandate of Section235(2) CrPC had to be obeyed in letter and spirit. [Paras 103and 105] [327-E; 329-D]

Santa Singh v. State of Punjab (1976) 4 SCC 190 :[1977] 1 SCR 229 ; Dagdu and Others v. State ofMaharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636– relied on.

3.2 Irrespective of whether these issues were raised onbehalf of the accused, the Court is obliged on its own to elicitfacts relevant to the question of existence of mitigatingcircumstances. The Court made no attempt to elicit any factsrelevant to the sentence. For effective hearing under Section235(2) Cr.P.C., the suggestion that the court intends to imposedeath penalty should specifically be made to the accused, to enablethe accused to make an effective representation against death A

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Asentence, by placing mitigating circumstances before the Court.This has not been done in the present case. The Trial Courtmade no attempt to elicit relevant facts, nor did the Trial Courtgive any opportunity to the petitioner to file an affidavit placingon record mitigating factors. As such the petitioner has beendenied an effective and meaningful hearing on the question ofBsentence under Section 235(2) of the Cr.P.C. The death sentenceimposed on the petitioner is liable to be commuted tolife imprisonment on this ground. [Paras 139, 140 and 141][339-D-G]

4. It is open to the Court to prescribe the length ofCincarceration. This is especially true in cases where deathsentence has been replaced by the life imprisonment. Eventhough life imprisonment means imprisonment for entire life,convicts are often granted reprieve and/or remission of sentenceafter imprisonment of not less than 14 years. Considering theDheinous, revolting, abhorrent and despicable nature of the crimecommitted by the appellant, the appellant should undergoimprisonment for life, till his natural death and no remission ofsentence be granted to him. [Paras 143 and 144] [340-A-C]

Mulla and Another v. State of U.P. (2010) 3 SCC 508 :E[2010] 2 SCR 633 – relied on.

Case Law Reference

DATTATRAYA @ DATTA AMBO ROKADE v. THE STATE OFMAHARASHTRA

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1110-1111 of 2015.

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From the Judgment and Order dated 21/24/25.03.2015 of the HighCourt of Judicature at Bombay in Criminal Appeal No. 1202 of 2013 andCriminal Confirmation Case No. 6 of 2013.

Gaurav Aggarwal, Anshu Raj Singh, Himanshu Agarwal,Ms. Pyoli, Advs. for the Appellant.

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Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. forthe Respondent.

The Judgment of the Court was delivered by INDIRA BANERJEE, J.

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1. These appeals are against the final judgment and order dated21/24/25-3-2014 of the High Court of Judicature at Bombay in CriminalAppeal No. 1202 of 2013/Criminal Confirmation Case No.6 of 2013whereby the High Court has confirmed the conviction of the appellantunder Sections 302, 376(2)(f), 377, 363, 364, 367 and 201 of the IndianPenal Code, as also under Sections 3, 4, 5(i) (l) and (m) of the ProtectionGof Children from Sexual Offences Act, 2012 (hereinafter referred to as‘POCSO’) and, inter alia, affirmed the sentence of death imposed onthe appellant.

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2. The facts giving rise to these appeals are abhorrent. TheComplainant and his wife being the second Prosecution Witness (PW)resided at Room No.3 in the ground floor of Om Sai building, near theShivsena Office in Koparigaon, with their son aged 10 years and twodaughters aged 7 years and 5 years respectively.

B3. It is the case of the complainant that he and his wife (PW 2),used to go to work, leaving the three children at home. On 22.1.2013,PW 2 had to go to her paternal home to visit her father. When PW 2returned home around 2.00 p.m. she found that her youngest daughter,being the victim, was not at home. Assuming that the victim might beplaying somewhere nearby, PW 2 left for work at around 2.15 p.m. AtCaround 4.30 to 5.00 p.m. PW 2 received a call on her mobile phone fromone Avaghade Mama, informing her that the victim was not at home.PW 2 thereafter returned home, and started searching for the victim.She contacted the complainant as also her own parents on mobile.

4. Thereafter the complainant, PW 2, her mother and brother allDstarted looking for the victim in Koparigaon, Vashi and Sanpada areas.As the victim could not be found, a missing report was lodged with theAPMC Police Station.

5. When the complainant and his wife (PW 2) reached home ataround 2.30 a.m. after frantic efforts to trace the victim, they found theEvictim lying nude and still in front of the door of their tenement, with nomovement.

6. The complainant contacted the police from his mobile and toldthe police that his daughter (the victim) had been found lying still, withoutany movement. The complainant and PW 2 took the victim to the NaviFMumbai Municipal Corporation Hospital, where the Medical Officerexamined the victim and declared her ‘brought dead’.

7. In the hospital the complainant noticed injuries on the body ofvictim. There was redness on both shoulders and both thighs of thevictim, and laceration in the vagina and anus of the victim. AccompaniedGby the Inspector of APMC Police Station, who had come to the hospitalfor investigation, the complainant went to the APMC Police Station andlodged a First Information Report, on the basis of which Crime No.120/2013 was registered by the APMC Police Station.

8. An inquest of the body of the victim was conducted andphotographs of the body were taken. There were injuries. The vaginaand the anus of the deceased victim was lacerated and blood was oozingout. On 23.1.2013, Dr. Bhushan Jain, assisted by Dr. Prerna Thakur,conducted post mortem examination of the deceased victim. Dr. BhushanJain also noticed injuries on the private part, anus, below the eye lid andabove the upper lip. He collected the blood of the deceased victim forDNA mapping and grouping and also collected her vaginal and analswab for detection of sperms. The samples were kept for chemicalanalysis.

9. Dr. Bhushan Jain who prepared the post mortem report (Exhibit48) opined that the cause of death of the victim was asphyxia due tosmothering, associated with head injuries and sexual assault. Dr. BhusanJain deposed that all the five injuries were possible by repeated sexualacts and forceful penetration. He opined that all these injuries weresufficient to cause instant death in the ordinary course.

10. In the meanwhile, on 23.1.2013 investigation commenced. PW26 was the Investigating Officer. on 23.1.2013 at about 7.15 p.m.,Panchnama (Ex.30) of the place where the deceased victim was found,was recorded in the presence of one Parashuram Mahadu Thakur, whodeposed as the tenth prosecution witness (PW 10). A plastic bag ofSurf Excel with plastic and two pieces of CDs were found on the spot.These were separately seized and packed and sealed under Panchnama(Ex.30).

11. The accused-appellant along with his wife Asha (PW 18) twosons Rupesh and Mahendra (PW 19), two daughters, Manisha and Nisha(PW 20) and a grandson Omkar used to reside in Room No. 8 of thesame building, adjacent to the tenement of the complainant.

12. The accused-appellant had been unemployed for four years,and sat idle at home. Omkar the grandson of the accused-appellant usedto be at school from 12.00 noon to 6.00 p.m. All other family membersof the accused-appellant used to leave for work during the day. Theaccused-appellant used to stay at home alone.

13. It is the case of the prosecution that on 22.01.2013, in theafternoon, the accused-appellant took the victim to his house, raped her,had unnatural sexual intercourse with her causing her head injury and A

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Asmothering her, as a result of which she died. On the same night ataround 2.00 a.m., the accused-appellant had gone outside the house andon 23.01.2013, the accused-appellant went to the house of his brother atKamothe without informing his wife, Asha (PW 18). On 24.01.2013 atabout 07.30 p.m., PW 18 i.e., wife of the accused-appellant found theaccused-appellant was in tension and asked him to go to their familyBdoctor.

14. On 24.01.2013 at about 7.30/8.00 p.m., PW 7 being the FamilyDoctor, examined the accused-appellant and found that the accused-appellant was tensed and his blood pressure was high. The HeadConstable, Gejage, (PW 15) who had been making inquiries from theCresidents of Om Sai Building, had left his mobile number with the residentsof the building including Mahendra (PW 19), the son of the accused-appellant so that they could contact him if they got any information withregard to the incident.

15. It was the case of the prosecution that the accused-appellantDused to force himself on his wife and have sexual intercourse with herwithout her consent two to four times a week. Furthermore, in 2004,when the accused-appellant and his family members were residing atVillage Dudhanoli, the accused-appellant had outraged the modesty of alady, Suvarna (PW 6) while she was attending to the call of nature. ItEis alleged that the accused-appellant was assaulted by villagers becauseof the aforesaid incident. The accused-appellant and his entire family,therefore, had to leave Village Dudhanoli forever.

16. The prosecution has alleged that considering the antecedentsof the accused-appellant and his conduct after the incident, PW 19Fsuspected that the accused-appellant might be the culprit who hadcommitted the ghastly crime.

17. On 24.01.2013, PW 19 contacted the Head Constable, Gejage(PW 15) and told him that he suspected the accused-appellant of beingguilty. Thereafter, on the night of 24.01.2013, the said Head Constable,GGejage, (PW 15) and Senior Police Inspector, Kambale took the accused-appellant to the office of Crime Branch for inquiry. On 25.01.2013, theaccused-appellant was arrested and the clothes on his person, i.e, bluecoloured full pants, Bermuda pants and a yellow shirt were seized underpanchnama, which is marked Ex. (Exhibit) 28. On 25.01.2013, theInvestigating Officer, Police Inspector, Bhong, being the 26[th] ProsecutionH

Witness (PW 26), went to the house of the accused-appellant alongwith a team from Forensic Science Laboratory and searched the housein the presence of panchas, the Forensic Laboratory team and daughterof the accused-appellant, Nisha (PW 20).

18. Three cushion covers from the Sofa, a cloth for cleaning thefloor and a sari used as a bed-sheet, all stained with blood, were seized.On 25.01.2013 itself, the accused-appellant was examined by Dr. Tambe(PW 8), who found that the accused-appellant was in sound physicaland mental condition. On 26.01.2013, the accused-appellant made astatement in the presence of Panchas on the basis of which which bloodstained white coloured plastic gunny bag, blood stained orange colouredshirt and black pants of the deceased were recovered from the debrisnear Om Sai Building.

19. The complainant and his wife being the parents of the victim,identified her clothes. It is alleged that on 27.01.2013, Vinod and Sanjaybeing the 4[th] and 5[th] Prosecution Witnesses approached the InvestigatingOfficer, Bhong (PW 26) and told him that on 22.01.2013, they had ameeting in the office of 10[th] Prosecution Witness (PW 10), Parshuram,which was situated in a building about 15 feet away from Om Sai Building.These witnesses told the police that after they came out of the office atabout 4.30 p.m they were standing under a parking shed and talking. Atthat time, they saw a short old man carrying a white bag coming fromthe side of the staircase and going into a lane. The man kept the bag inthe lane which was in front of the parking shed.

20. PW 4 and PW 5 identified the accused-appellant, as thesame person, who had kept the bag in the lane, in a test identificationparade conducted by the Executive Magistrate, Ratnanjali (PW 21).This very bag was recovered at the instance of the accused-appellantunder Panchnama and packed in a packet (Ex.35 and Ex.36). Both PW4 and PW 5 identified the bag as the same bag which had been carriedby the accused-appellant and dumped in the lane.

21. It is stated that on 29.01.2013, the accused-appellant wasproduced before Dr. Thakur, the Casualty Medical Officer in NaviMumbai Municipal Corporation Hospital (PW 16). Dr. Thakur collectedblood of the accused-appellant in two plastic containers provided by theForensic Science Laboratory, sealed the packet containing the plasticcontainers, filled in the identification form, attested the photograph of A

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Athe accused-appellant and obtained thumb impression of the accused-appellant on identification form

22. The clothes of the accused-appellant, the white plastic bag,the clothes of the deceased, sealed bottle containing blood of the accused-appellant and his semen, hair and nail were sent to the Forensic ScienceBLaboratory. The blood, hair, nail, vaginal swab and anal swab of thevictim were also sent to the Forensic Science Laboratory. The reportsreceived by the Investigating Officer, Bhong (PW 26) from the ForensicScience Laboratory showed that D.N.A. profile of blood detected onthe plastic bag, orange shirt of the deceased and sari cum bed-sheetseized from the house of the accused-appellant was identical with D.N.A.Cprofile of the deceased victim. The reports also showed that D.N.A.profile test of semen conducted on underwear (Bermuda pants) of theaccused-appellant, and the vaginal swab and anal swab of the victimmatched the D.N.A. profile of the accused-appellant.

23. Charges were framed against the accused-appellant underDSections 363, 364, 367, 377, 302, 201 and 376 or alternatively 376(2)(f)of the Indian Penal Code. Charges were also framed under Sections 3,4 and 5 of the Prevention of Children from Sexual Offences Act(hereinafter referred to as ‘POCSO). The accused-appellant pleadednot guilty and claimed to be tried. His defence was of denial and falseEimplication.

24. The prosecution examined 27 witnesses. No witnesses wereexamined on behalf of the accused-appellant. Shorn of unnecessarydetails, the first prosecution witness, being the complainant (PW 1),deposed that when he returned home at around 3.20 a.m. on 23.1.2013,Fafter frantically searching for his daughter, he found his daughter lyingnaked in front of the door of his house. She was still and there was nomovement. He informed the police. The victim was taken to NaviMumbai Corporation Hospital where she was declared dead. PW 1described the injuries on the victim i.e. redness on both shoulders andboth thighs. He said there was blood in the private part of the victim andGthere was a laceration in the vagina. The anus was swollen. He identifiedthe complaint and stated that its contents were correct. PW-1 identifiedthe following articles: - a.A sealed packet which contained a black thread worn by thevictim (Marked as Articles 1 and 1A).H

b.A sealed packet containing a plastic bag of surf excel powderof 1.5 kg (Marked as Article 2 and 2A).

c.A packet containing two pieces of CD (Marked as Articles 3and 3A.

d.One sealed packet containing an orange coloured shirt, whichhe identified as shirt of the victim. (Marked as Articles 25 and25A)

e.Another sealed packet containing black half pants which thewitness identified as pants of the victim. (Marked as Articles 24and 24A)

25. PW-1 deposed that his daughter, the victim, had been rapedand murdered. In his cross-examination, he admitted that he had incourse of his examination expressed suspicion against one Arun Pawar.Records reveal that the said Arun Pawar, a worker of the Shiv SenaParty had been arrested, but later released and charges against himdropped after investigation.

26. The 2[nd] Prosecution Witness (PW 2), being the wife of thecomplainant, and mother of the victim, in essence, reiterated what herhusband had said. She also identified the black thread and the clothesworn by the victim. She also reiterated that initially she and her husbandbeing the complainant had suspected that Arun Pawar was the culprit.She, however, denied that there had been any compromise between thecomplainant and his wife (PW 2) and the said Arun Pawar.

27. The 3[rd] Prosecution Witness (PW 3) is a pancha, whosigned on a panchnama at the hospital. She only put her signature on thepackets containing the thread and the clothes of the victim. She alsodescribed the injuries on the victim. None of the first three witnesseshave said anything to even suggest who could be the culprit.

28. The 4[th] Prosecution Witness (PW 4) who claims to run aconstruction business, stated that he had business dealings with personsresiding at Koprigaon. On 22.1.2013 he had gone to meet ParshuramThakur at the Shiv Sena Office at Koprigaon. His friends Sanjay Govariand Devidas Dalavi, a resident of Airoli were also there at the office.This witness deposed that after coming out of the Shiv Sena Office, he,Sanjay Govari and Devidas Dalavi were standing below a shed in frontof a building near the said Office. While they were standing below the A

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Ashed, they saw an old man come from the side of the staircase, holdinga white bag, which he kept in the lane which was in front of the parkingshed. The old man was short and except for Bermuda pants that he hadbeen wearing, he was bare bodied. According to this witness, he alongwith Devidas Dalavi and Sanjay Govari once again went to the office ofParshuram Thakur after a few days, when Parshuram Thakur told themBabout the rape and murder of a girl in a building in front of his office,which had taken place on 22.1.2013.

29. This witness stated that on hearing of the incident, he toldParshuram Thakur that on 22.1.2013 that he had seen an old man goinginto the lane in front of the shed under which they were standing, with aCbag. Parshuram Thakur then told this witness to inform this to the police.On 27.1.2013, this witness along with Sanjay Govari who has also deposedas the fifth witness, went to the police station, met the police officer anddisclosed what he had seen, which was recorded by the police.

30. Thereafter on 7.2.2013, this witness received a letter informingDhim that he should meet the Tehsildar. On 8.2.2013, this witness alongwith Sanjay Govari and Devidas Dalavi went to the Tehsildar, andthereafter, along with another lady, went to Taloja jail where he identifiedthe accused-appellant as the person who had kept the bag in the lane.

31. This witness identified a white colour plastic bag taken outEfrom a bag, marked Articles 23 A and 23. He also identified the Bermudapants as the same pants worn by the accused-appellant. In cross-examination, he said that the old man with the bag did not arouse hissuspicion. If his suspicion had been aroused, he would have gone to thepolice station the same day.F32. The 5[[th]]

32. The 5[[th]] Prosecution Witness Sanjay Kamlakar Govari(PW 5) reiterated what had been stated by PW 4. He also identified theplastic bag as the same one which had been dumped in the lane by theaccused-appellant. He read out the description printed in the inner sideof the plastic bag “crystal white sugar sulphiton Jawahar sugar hupariGKolhapur (Maharashtra State) India S-30 sucrose 50 kgs. 2009-2010best before 3 years”. In cross examination this witness stated that hehad not seen any identification mark on the white bag on that day and healso stated that when he saw the white bag, he did not have any suspicion.He reiterated that he had seen the old man dropping the white plasticbag in the lane.

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33. The 6[th] Prosecution Witness (PW 6), a teacher and aresident of Dudhanoli, Taluka Murbad, District Thane deposed that theaccused-appellant had tried to outrage her modesty when she had goneto relieve herself in the open field in the year 1998 i.e. about 15 yearsbefore the present incident. She said that she and her husband hadbeaten up the accused-appellant and that night, the accused-appellantleft the village permanently. The aforesaid incident has no connectionwith the rape and murder of the victim. In cross examination she admittedthat she had not lodged any complaint against the accused-appellant.

34. The 7[th] Prosecution Witness (PW 7), a Homeopathic Doctor,deposed that on 24.1.2013 at about 7 p.m. the accused-appellant hadvisited her complaining of uneasiness. She said she noticed that theaccused-appellant was suffering from tension and his blood pressurewas slightly high. She thought that the accused-appellant might besuffering from acidity and accordingly prescribed medicines. Theevidence of this witness does not by any stretch of imagination, establishthe guilt of the accused-appellant for the offence alleged.

35. The 8[th] Prosecution Witness (PW 8) an Associate Professorin Terana Medical College, Surgery Department deposed that on 25[th]January, 2013 he was on call duty at Navi Mumbai Municipal CorporationGeneral Hospital. On that day he examined the accused-appellant whohad been brought by the police. On examination, the accused-appellantappeared to be in sound physical and mental condition. On examinationof private part that is genital, no external injury was found but “bilateralscrotal enlargement was seen”. Apart from that there was no externalinjury. Genital size was normal. There was no external deformity ingenital. Testicular reflex was normal. Penis was uncircumcised, Smegmawas absent. There were no signs of sexually transmitted disease. Therewere no Injuries on glans penis.

36. This witness deposed that glance and sulcus was washed andwashed material was collected in a glass bulb for examination. Bloodwas collected for blood grouping and examination. Samples of pubichair and scalp hair were also collected. There was nothing to suggestthat the patient was impotent. However, the witness volunteered that onphysical examination it was not possible to draw 100% conclusion aboutpotency. The evidence of this witness also does not contain anythingmaterial, that points to the guilt of the accused-appellant , for the offencealleged.

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37. The 9[th] Prosecution Witness (PW 9), a driver by occupation,is the Panch for the yellow shirt, blue pants and blue Bermudas underthe pants of the accused-appellant which had been seized by the police.His evidence reveals that these clothes were found on the body of theaccused-appellant on 25[th] January, 2013 at about 1.45 P.M., that is,almost 48 hours after the incident.

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38. The 10[th] Prosecution Witness (PW 10), Parshuram MahaduThakur, a Builder in the business of construction, owned an apartment ina building in the ground floor of which there was a Shivsena office. Hesaid that on 23[rd] January, 2013 at about 7.15 a.m., police officer Dighecalled him near Om Sai Niwas. PW 10 stated that he had shown theCpolice officer the spot where the dead body of the victim had been found.By that time, the dead body had been removed. He also deposed that atthe spot, a bag of Surf Excel and two pieces of CDs were found. Onthe bag of Surf Excel there were some blood stains. The bag of surfexcel and pieces of CDs were separately packed by the police. TheDpolice recorded spot panchnama. PW-10 identified his signature in thepanchnama and deposed its contents were correct.

39. This witness deposed that PW Nos. 4, 5 and an agent Dalavi,used to come to his office during the period between 19[th] January, 2013and 22[nd] January, 2013. On 22[nd] January, 2013, they had come toEhis office at around 2/2.30 P.M. and they were there in his office till4.30 p.m.

40. This witness said that on 26[th] January, 2013 the aforesaidpersons again came to his office for discussion in relation to a plot.While talking to them, this witness told them that on 22[nd] January, 2013Fthere had been rape and murder of a five year old girl. The police wereinspecting a bag. On hearing this, PWs 4 and 5 and Dalavi mentionedthat they had seen a man who seemed frightened, drop a bag. Thiswitness deposed that he had advised the aforesaid persons to go andinform the police. Thereafter, the three persons left.

G41. This witness stated that, on 27[th] January, 2013 he was calledby A.P.M.C. police station and his statement was recorded. This witnessalso deposed that he knew the accused-appellant, who had been residingin Room No.8 of Om Sai Niwas building as a tenant. The family membersof the victim were residing in Room No. 3 in the same building. Thetenement of the accused-appellant and as well as the deceased victimHare in the ground floor of Om Sai Niwas building.

42. Significantly there are inconsistencies between the statementof this witness and the statements made by PW 4 and PW 5, who didnot say that the man dropping the bag seemed frightened. On the otherhand they said that the man did not arouse their suspicion.

43. The 11[th] Prosecution Witness (PW 11), Arvind MadhavjiGajara is the Panch in whose presence, the tenement of the accused-appellant was searched. He deposed that on 25[th] January, 2013 he hadgone to Koparigaon in connection with his business. He saw that manypersons had gathered near the Om Sai building. It was about 5.00 p.m.The police constable Rane called this witness. At that time the accused-appellant, a photographer and a panch by the name of Patil were wasalso present. At the request of the police he agreed to act and acted asPanch. The police took him to room No.8 of Om Sai apartment. Apolice officer rang the bell at the door. It was opened by a lady, who saidthat her name was Nisha. The police officer told Nisha that they wantedto search the house and asked whether she had any objection. Nishareplied that she had no objection.

44. This witness said there was one room which was partitionedand there was a kitchen. There was a sofa on which a bed sheet waslying. They noticed blood stains on the bedsheet. There were alsoblood stains below the sofa set.

45. This witness deposed that one of the persons in the searchteam scratched the blood stains to collect the dried blood. In the presenceof this witness, the blood stained sheet on the sofa set, a cloth for cleaningthe floor tiles lying on the window, a saree used on the bed as a bedsheet were also packed. In all six articles were seized and six labelswere prepared. A bag in which the articles were packed was separatelymarked. The evidence of this witness only establishes that the tenementof the accused-appellant was searched with the consent of the accused-appellant’s daughter and some articles seized. During the search bloodstains were noticed, which were scraped for examination.

46. The 12[th] Prosecution Witness (PW 12), named MustaqaliAsgarali Ansari, a Carpenter by profession stated that on 26[th] January,2013, he went to fill petrol in his motor-cycle at a petrol pump nearAPMC police station at about 3.00 p.m. At that time, a police constable,by name Mandole, called him and told him to come to APMC PoliceStation. He went to the APMC police station along with the constable.

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AIn the police station, one police officer by name Bhong and anotherpanch More, one lady police and three police constables were present.The accused-appellant, whom this witness identified in Court, was alsopresent in the police station.

47. According to PW 12, in the police station, the accused appellantBmade a statement that he had kept the dead body of the girl in a bag andkept the said bag behind the staircase.

48. PW 12 deposed that the accused-appellant was taken to thebuilding and from inside he took out clothes from the white bag, thecapacity of which might be 50 to 60 kgs. He identified the clothesCnamely the black half pants and an orange shirt. PW 12 deposed thatthe clothes were taken out from the bag.

49. Significantly even though this witness (PW12) was a panch tothe seizure of the white bag, the printing inside the bag which the PWclaims to have seen, were not noticed by him.

D50. The 13[th] Prosecution Witness Dr. Bhushan Vilasrao Jain(PW 13) conducted the post mortem examination on the body of thevictim. He noticed the following injuries:

“(1) Lacerated wound seen over posterior vaginal wall with width0.5 c.m. muscle deem hymen torn at 6 O’ clock position reddishEblood oozes out.

(2) Lacerated wound over right lateral vaginal wall 1 x 0.2 c.m.muscle deep reddish, blood oozes out.

(3) Two lacerated wounds seen over anal region at 12 O’clockand 3 O’clock position of size 2 x 1 c.m. mucosa deep and 1 x 0.5Fc.m. mucosa deep respectively reddish.

(4) Two tiny abrasions seen over left maxillary region below eyelidlaterally 0.5 x 0.3 c.m. each reddish.

(5) Aberated contusion over upper lip mucosal aspect in a middleGregion 2.5 x 1.5.”

51. He deposed that all the injuries were ante-mortem in natureand he further deposed of internal examination.

“2. On internal examination I noticed haemorrhage under scalpover occipital region 5 x 3 c.m. reddish and meninges were H

congested. Brain matter congested and -oedmatous. On cut sectionpetechial haemorrhages seen over white matter. Both lungs werecongested and oedematous with petechial haemorrhages.

3. Thoracic cavity contained dark fluid blood. Stomach contained200 cc. semi digested rice, dal sabu like food material.

All visceral organs were congested.”

52. This witness deposed that they kept blood for DNA mapping.Blood for grouping, nail clipping of both hands and plucked scalp hair forgrouping and detection of foreign body. They also kept vaginal and analswab for detection of sperms as also blood for chemical analysis. Heopined that the cause of death is asphyxial death due to smotheringassociated with head injury and sexual assault.

53. This witness deposed that the injuries mentioned in column 17of the postmortem report were possible by repeated sexual acts andforcible penetration of the penis in the vagina. The victim may havesuffered some of the injuries while she was trying to rescue herselffrom the clutches of the culprit. The injuries referred to as injury Nos.4 and 5 in the postmortem report may have been caused by the culpritby pressing the mouth of the victim with his hands. The injury describedin the Report as injury No.4 may have been caused by finger nails.

54. This witness deposed that the injury shown in the postmortemreport as injury No.19 over the head and under the scalp could havebeen suffered if the head had hit any hard object while the act of rapewas committed.

55. PW-13 deposed that the injuries shown as injury Nos. 1 to 5were sufficient to cause instant death. The injuries shown as injury Nos.4 and 5 could also cause death. The Cyanosis in finger nails, petechialover brain and lungs and dark fluid blood were cardinal signs of asphyxia.

56. In cross-examination, PW 13 said that there was no injury tothe brain substance. However, death was possible by reason of the injuriesthat were seen. He, however, said in his cross-examination that therewas hemorrhage. This witness deposed that pressing of mouth and nostrilcauses smothering which leads to asphyxia and consequential death. Incross-examination, this witness said that he had not taken blood sampleof accused-appellant for the purpose of DNA as blood sample was notproduced before him. The evidence of this witness clearly establishes A

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Athat the victim was raped and killed. There is nothing in his evidencethat implicates the accused-appellant .

57. The 14[th] Prosecution Witness (PW 14), a neighbour of thecomplainant and the accused-appellant deposed that the accused-appellant had two daughters, two sons and one grand son, none ofBwhom stayed at home between 12 and 6 p.m. She deposed that theaccused-appellant used to stare at her by opening the door slightly or bylooking into the mirror and when she told this to another neighbour, thatneighbour told her that the accused-appellant was in the habit of staringat women. She said that she did not say anything to the accused-appellant,considering his old age. In cross examination, this witness deposed thatCthe accused-appellant did not whistle at women nor did he tease thewomen of the building. He used to keep his door open and look into amirror. Her evidence in cross-examination reveals that the accused-appellant was arrested on 25[th] January, 2013 and on 26[th] January, 2013,one Arun Pawar was arrested. This witness’s evidence, at best raisesDdoubts about the character of the accused-appellant.

58. The 15[th] Prosecution Witness (PW 15) a Head Constableof the Crime Branch deposed that the Senior Police Inspector calledhim and his colleagues for the purpose of investigation in relation to themurder of the victim. He deposed that he reached Koparigaon on 23[rd]EJanuary, 2013. He visited each room in Om Sai Building and interrogatedthe residents. He had also given his mobile number to the residents sothat he could be contacted in case any information was forthcoming.

59. This witness deposed that on 24[th] January, 2013, PW 19Mahendra Rokade, son of the accused-appellant called him up and toldFhim that he was suspecting the involvement of his father, the accused-appellant, in the rape and murder of the victim.

60. The PW-19 allegedly told this constable that on the night of22[nd] January, 2013 his father was stressed up. He also said that on anearlier occasion his father had tried to outrage the modesty of a womanGat his native place Dudhanoli. This witness further stated that on thenight of 24[th] January, 2013 this witness and another police constablealongwith senior police inspector went to the Om Sai Building on receivingsecret information that the accused-appellant had come home. Accordingto this witness the wife, daughters and grandson of the accused-appellantand the accused-appellant were at home at that time. The accused- H

appellant was found in stress. The wife of the accused-appellant saidthat the accused-appellant had outraged the modesty of a woman atDudhanoli. The accused-appellant was taken to the office of the crimebranch. On 25[th] January, 2013, the accused-appellant confessed that hehad committed the crime. From the evidence of the witness it can onlybe deduced that PW-19 had called him up and expressed suspicion ofinvolvement of the his father in the rape and murder of the victim.

61. The 16[th] Prosecution Witness (PW 16), Dr. Prerana AnantThakur deposed that she had personally collected the blood of accused-appellant and handed over the sealed container along with the prescribedidentification form which she had filled in herself, to the police. Shehanded over the prescribed form and sealed packet containing bloodsample to police Naik B. No.1761 who took that sample to Kalina ForensicScience Laboratory.

62. The 17[th] Prosecution Witness (PW 17), the owner of aphoto studio named Balaji Photo Studio deposed that he went along withthe police to take photographs of Room No.8 of Om Sai Niwas. On 25[th]January 2013, he took photographs of the sofa and pillow lying on thesofa on which there were blood stains. He took photographs of the bedand the floor under the sofa where there were blood stains. His camerawas a digital camera. He got the photographs printed and he handedover the photographs along with memory card to the Investigating officerof the police station. He said that he was paid Rs.350/- for thephotographs. The PW-16 and PW 17 have also not implicated theaccused-appellant.

63. The 18[th] Prosecution Witness (PW 18), Asha DattatrayaRokade, wife of the accused-appellant said that she was residing inRoom No.8 of Om Sai Building along with the accused-appellant, theirtwo sons, two daughters and a grand son (son of younger daughter,whose husband had expired). She deposed that the accused-appellantwas unemployed and stayed at home alone, while the other members ofthe family went out to work and the grand child went to school. She saidthat on 22[nd] January, 2013 when she came back from work at around7.30 p.m. she heard that the victim was missing. She had dinner at about1.00 a.m. after all the family members returned, after which they wentto sleep. She deposed that after 2.00 a.m., her husband went out of thehouse. On 23[rd] January, 2013 at about 7.00 a.m. police knocked at the AB

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Adoor of the house and inquired about the victim. On 23[rd] January, 2013she left for work. When she left, her husband i.e., the accused-appellantand their daughter Nisha (PW 20) were at home but when she cameback home at about 7.30 p.m. she did not find her husband. On inquiry,her daughter Nisha (PW 20) told her that the accused-appellant hadgone to his brother’s house. She further deposed that on 23[rd] January,B2013 she had dinner and went to sleep. On 24[th] January, 2013 when shewent out to work her husband i.e. the accused-appellant came back.After returning at about 7.30 p.m., she made tea and served tea to theaccused-appellant. While serving tea she asked the accused-appellantwhy he was tensed up. He replied that he was not feeling well.CThereafter she told him to go to hospital. The accused-appellant went toDr. Nilima Pawar.

64. This witness deposed that after her husband, the accused-appellant came back from the doctor, he told her that he had raped andkilled the victim. Thereafter at about 8.00 p.m. police took the accused-Dappellant for inquiry. On 25[th] January, 2013, she was informed by herson Mahendra that police had arrested her husband. He said that theaccused-appellant had confessed to the crime before the police. Theevidence of this witness is of importance since she has deposed that theaccused-appellant confessed to her that he had raped and killed thevictim.E

65. Nothing much of substance has transpired from the evidenceof the 19[th] Prosecution Witness (PW 19), Mahendra, son of theaccused-appellant, except that he had called up the police and informedthe police that he suspected the involvement of his father, the accused-appellant, in the rape and murder of the victim.

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66. This witness reiterated the work schedule of the members ofthe family and school hours of his nephew. He said that he had heardthat the victim had gone missing and had later heard that the victim hadbeen raped and murdered. The police came to the building to makeinquiries. This witness further deposed that when he had heard that hisGfather had suddenly gone to Kamothe he became suspicious, in view ofthe past history of his father involving an incident at Dudhanoli village.He further said that on 25[th] January, 2013, the police contacted him andinformed him that his father had confessed to the crime. He also identifiedthe articles seized as Articles Nos.18-A, 19-A and 20-A. In cross H

examination, this deponent deposed that on 23[rd] January, 2013 he wassleeping on the bed of the inner room having partition. At that time he didnot find or see any stain on the bedsheet. The bedsheet used to bechanged every 4 or 5 days and covers of sofa set and cushion afterevery two to three months. He also deposed that the flooring of thehouse is washed and cleaned daily.

67. The 20[th] Prosecution Witness (PW 20), Nisha, daughterof the accused-appellant deposed that on 25[th] January, 2013, in theevening, police came to their house with experts from the ForensicLaboratory and a photographer. After taking her permission, the policeseized sofa cover, cushion cover, bedsheet and duster cloth. The expertfound blood stains in the gap between the tiles on the floor and on thesofa cover. The sofa cover, cushion cover and bedsheet were stainedwith blood. All these articles were seized and the police obtained hersignature and the signature of her father. She identified the sofaset cover,cushion cover, bed sheet and the duster cloth for cleaning the floor. Shealso identified the Bermudas of her father. She stated that when shewas a young child she came to know that her father had caught the handof a woman and therefore, the family had to leave the village Dudhanoli.In cross examination, this witness said that her father never spoke to herunnecessarily. She said that she cleans utensils and cleans floor on everyalternate day. She said that she had not noticed anything abnormal onsofa, cushion or on the bed. Nothing significant has transpired from theevidence of this witness except that the tenement of the accused-appellanthad been searched in the presence of forensic experts and a photographer.Photographs of the tenement were taken, some articles seized andsamples of blood scrapings collected for examination.

68. The 21[st] Prosecution Witness (PW 21), Ratnanjali RavindraSarnobat, deposed that he had conducted the Test Identification Parade(TIP) and the witnesses Bhagat, Govari and Dalavi (PW-4 & PW-5)had identified the accused-appellant.

69. The 22[nd] Prosecution Witness (PW 22), the Sub-Inspectorof police at AMFC police station deposed that on 22[nd] January, 2013 hewas on night duty from 9.00 p.m. onwards till 9.00 a.m. At about 9.15a.m. the complainant and his wife gave a missing complaint in respect ofthe victim. At about 2.30 a.m. when he was patrolling out of the policestation, he received a telephone call from the APMC police station that A

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Athe missing girl had been found but with no movement. She was beingtaken to the Vashi Navi Mumbai Municipal Corporation Hospital(NMMC). The doctor declared the girl was dead after which thecomplainant filed an FIR. There is nothing in the deposition of this witnesswhich establishes or points at the guilt of the accused-appellant. He onlynarrated the facts leading to the missing report and the first informationBreport, the condition of the dead body of the victim, the seizure of articlestaking of photographs etc.

70. The 23[rd] Prosecution Witness (PW 23) deposed that hehad carried blood samples of accused-appellant to the Forensic ScienceLaboratory, Kalina for DNA profiling along with identification.C

71. The 24[th] Prosecution Witness (PW 24) attached to APMCpolice station as Police Naik deposed that he brought back the DNA kitfrom the Forensic Science Laboratory, Kalina.

72. The 25[th] Prosecution Witness (PW 25), is the AssistantDInvestigating Officer in the case. She deposed that as Assistant PoliceInspector she had investigated the case. On 23[rd] January, 2013 at about5.00 a.m. she visited the spot and started making inquiries. She recordedthe statement of the mother of the deceased victim (PW 2).

73. On 26[th] January, 2013 she recorded the statements of someEwitnesses and recorded the supplementary statement of the mother ofthe deceased. She also recorded the statements of the wife of theaccused-appellant, two daughters of the accused-appellant andother witnesses. Nothing significant, which points to the guilt of theaccused-appellant has transpired from the evidence of PW-23, PW-24and PW-25.F

74. The 26[th] Prosecution Witness (PW 26), the Senior PoliceInspector and Investigating Officer deposed that he reached NaviMumbai Municipal Corporation Hospital at about 3.00 a.m. after whichhe took the complainant to the police station and recorded the FIR. Hedeposed that on the basis of the FIR, Crime No.20 of 2013 wasGregistered. PW-26 deposed that on 23[rd] January, 2013, he sent PoliceInspector Lavand to the spot and he recorded the spot panchnama(Exh.30). He deposed that initially, the parents of the victim hadexpressed suspicion against one Pawar who was taken in custody. Oninvestigation nothing was found against him and accordingly report underSection 169 of the Criminal Procedure Code was filed. On 24[th] January,H

2013 this witness recorded the statements of some witnesses. On 25[th]January, 2013, staff of the crime branch produced the accused-appellantbefore this witness. This witness interrogated the accused-appellantand arrested him under panchnama. The clothes he was wearing at thetime of his arrest was seized under panchnama. The accused-appellantwas wearing blue full pants, Bermuda pants and a yellow shirt. Thiswitness further deposed that on 25[th] January, 2013 he called a teamfrom the Forensic Science Laboratory who seized six articles from thehouse of the accused-appellant that is Article Nos.17-A, 18-A, 19-A,20-A, and 21-A.

75. The seized articles were cushion covers, a cloth for cleaningthe floor, a saree used as a bed sheet which were sealed in six packets.He deposed that experts from the Forensic Science Laboratory collecteddried blood from the floor tiles beneath the sofa. The photographs of thesofa and other articles were taken at the time of recording the spotpanchnama. PW-26 further stated that on 25[th] January, 2013 he got theaccused-appellant medically examined and he also recorded thestatements of witnesses. On 26[th] January, 2013 the accused-appellantoffered in the presence of two panchas to show the place where he hadput the clothes of the victim in a bag, which was the debris was by theside of staircase of the Om Sai Building. The statement of the accused-appellant was recorded by this witness. The statement so recorded wassigned by Panchas and the accused-appellant affixed his thumbimpression thereon. After that the accused-appellant took theInvestigating Officer (PW 26) and others to the side of the staircase ofthe said building where debris were lying and he took out a plastic bag inwhich an orange shirt and black pants were found. The accused-appellanttold the Investigating Officer that the shirt and the pants were the clothesof the victim. This witness deposed that the parents of the victim werecalled and they identified the clothes of the victim. There were bloodstains on the shirt, pants and the plastic bag. The articles were seizedand sealed in the presence of Panchas, whose signatures were obtainedon the panchanama recorded on the spot.

76. This witness deposed that on 27[th] January, 2013 three witnessesDevidas, Vinod Bhagat and Govari came to the APMC police stationand got their statements recorded. Thereafter a test identification paradewas arranged. On 27[th] January, 2013 he seized the memory card producedby the photographer Rajesh Joshi (PW 17). From the evidence of this A

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Awitness, it transpires that blood samples collected for DNA profile wereduly sent to the forensic laboratory. This witness deposed that duringthe investigation, it transpired that the accused-appellant had raped thevictim and murdered her. After completion of investigation, this witnessfiled chargesheet.B77. The 27[[th]] Prosecution Witness (PW 27), an Assistant B77. The 27[[th]] Prosecution Witness (PW 27), an AssistantChemical Analyzer in the Forensic Laboratory, Kalina deposed that hewent to APMC Police Station along with his team consisting of fourpersons. The team went to Om Sai Building at Koparigaon. The accused-appellant was also present along with the Police. In the tenement of theaccused-appellant there was one hall and kitchen and in the said hallCthere was a partition. When the door was opened they saw a sofa on theright. On careful inspection, they found there were three cushions onthe sofa and on the cushion covers there were blood stains of the diameter1 cm. to 2 cm. approximately. This witness deposed that he tested theblood stains with the help of phenolphthalein and confirmed that theDstains were bloodstains. He deposed that three cushion covers whichwere bloodstained were removed from the cushion and handed over tothe Investigating Officer. This witness deposed that he saw that therewere blood stains on the floor near the middle leg of the sofa. He testedthose stains with Phenolphthalein and confirmed that they were bloodstains. Dry blood was scraped and collected with the help of cottonEcloth and that cotton cloth was put into an envelope which was packedin a polythene bag and handed over to the Investigating Officer. Thiswitness has deposed that the team saw bloodstained cloth on the windowwhich was also tested and given to the Investigating Officer. Therewas one cot in the inner side of the partition. The bed was covered with Fa saree. He collected the scrapings of the blood stains on the saree fortesting. It was confirmed that those were blood stains but as the test ofthe semen identification consumes much time, the saree cover was handedover to the IO with the instructions to properly seal each article andsend the same to the Forensic Science Laboratory. This witness alsoidentified the articles.G

78. As observed above, the oral evidence of PW-1 and PW-2being the parents of the deceased victim do not even suggest culpabilityof the accused-appellant. The 3[rd] Prosecution Witness only a Panchawho put her signatures on bag containing thread and clothes of the victim.The 4[th] and the 5[th] Prosecution Witnesses have claimed that they hadH

gone to visit Parshuram Thakur at the Shiv Sena Office at Koprigaon onthe day of the incident. After they came out of the office, they werestanding below a shed and talking, when they saw an old man comefrom the side of the staircase of the building, holding a white bag whichhe kept in the lane in front of the parking shed. These witnesses identifiedthe accused-appellant as the man carrying the bag. They also identifiedthe bag as the bag which the accused-appellant had been carrying.

79. There are, however, serious loopholes in the evidence of thesetwo witnesses. First of all, these witnesses as per their own statementsaw a man carrying a white bag. They did not go near the bag. Noreliance can be placed on the purported identification by the witnessesof the bag produced by the police, as the very same bag which thesewitnesses had seen the accused-appellant carrying. Furthermore, oneof the witnesses stated in cross-examination that they did not suspectanything when they saw the man carrying the bag. If the body of aneight year old child were being carried in a bag that would have arousedsome suspicion.

80. In any case, these witnesses deposed that the bag was left inthe lane opposite the parking shed, after they came out of the Shiv SenaOffice building, which was around 4.30 p.m. The naked body of thedeceased victim was first discovered in front of the door of the tenementof the complainant at around 2.00 a.m. at night. If the body had beendumped outside the door in the early evening, the body would surelyhave been noticed earlier.

81. The evidence of PW 6 that the accused-appellant had tried tooutrage her modesty about 15 years ago, has no bearing to the incidentof rape and murder of the deceased victim. Admittedly this witness hadnot lodged any police complaint against the accused-appellant.

82. The evidence of PW7 is also of no relevance. This witness, aHomeopathic Doctor, deposed that on examining the accused-appellant,she found him suffering from tension and his blood pressure was slightlyhigh. As per her own evidence she thought that he might be sufferingfrom acidity.

83. Similarly the evidence of PW 8, a doctor who had examinedthe accused-appellant, does not contain anything material to establishthe guilt of the accused-appellant for the offence alleged.

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A84. The 9[th] Prosecution Witness is only a Panch in whose presencethe clothing of the accused-appellant was seized. He stated that thesewere the clothes which the accused-appellant had been wearing about 2days after the incident. The 10[th] Prosecution Witness only corroboratedthat the 4[th] and 5[th] witnesses had come to his office and they had latertold him what they had seen on 22[nd] January, 2013.B

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85. Even though, as observed above, there is nothing in the evidenceof any of the witnesses, except the evidence of PW-12 and PW-18 andthe weak evidence of the PW Nos. 4 and 5 purported to be corroboratedby the PW-10, to prove the accused-appellant guilty of the offencesalleged, the forensic reports along with the extra-judicial confessionCmade by the accused-appellant to his wife PW-18, clearly establishesthe guilt of the accused-appellant.

86. The examination of the reports of the Directorate of ForensicLaboratories, State of Maharashtra, Home Department, Vidyanagari,Kalina, Santa Cruz (East) Mumbai being Ex. No. 22 to 25 and in particularDthe examination report in Ex.25 indicates that DNA profile of the blooddetected on the plastic bag and the clothes and those obtained from thenails of the victim are identical and are from one and the same source offemale origin. The DNA profile of semen detected on the underwear(Bermudas), the bedsheet, vaginal swab and anal swab of the victim areEidentical and from one and the same source of male origin. The DNAanalysis establishes beyond reasonable doubt that the victim was rapedby the accused-appellant.

87. By a judgment and order delivered on 6[th] and 7[th] June, 2013,the learned Special Judge (Protection of Children from Sexual OffencesFAct), Thane convicted the accused-appellant of offences under Sections363, 364, 367, 302, 201, 376, 376(2)(f) and 377 of the Indian Penal Coderead with Sections 4 and 6 of the Protection of Children from SexualOffences Act, 2012.

88. On 7[th] June, 2013, the accused-appellant was produced inGCourt and heard on the question of sentence after which the Trial Courtordered as follows:

“1. Accused Dattatray @ Datta Ambo Rokde is hereby convictedof the offences punishable under Sections 363, 364, 367, 302, 201of the Indian Penal Code and under Sections 376, 376(2)(f), 377of the Indian Penal Code r/w Section 3 punishable under SectionH

4 of the Protection of Children from Sexual Offences Act andunder Sections 5(h)(i), 5(k), (I) (m) punishable under Section 6 ofthe Protection of Children from Sexual Offences Act.

2. Accused is sentenced to death for an offence punishable underSection 302 of the Indian Penal Code and he be hanged by theneck till he is dead, subject to confirmation by Hon’ble High Courtof Judicature at Bombay.

3. Accused is sentenced to suffer imprisonment for life for offencesunder Sections 376, 376(2)(f), 377 of the Indian Penal Code andoffence u/s 3 punishable u/s 4 and 5(h)(i), 5(k), (I) (m) punishableunder Section 6 of the Protection of Children from Sexual OffencesAct.

4. No separate sentence is awarded for offences under Sections363, 364, 367 and 201 of the Indian Penal Code.

5. Accused is undertrial prisoner since 25.01.2013.

6. The Muddemal property be preserved till further orders inreference from Hon’ble High Court.

7. The copy of this judgment be furnished to accused free of costforthwith.

8. The Registrar is directed to send the record and proceedings ofthis Special Case No.1/2013 to Hon’ble High Court forconfirmation of death sentence.”

89. The Registrar was directed to send the records and proceedingsof the case to the High Court for confirmation of the death sentence.The accused-appellant also filed an appeal against the conviction andsentence being Criminal Appeal No.1202 of 2013.

90. The said Criminal Appeal No.1202 of 2013 was heard by aDivision Bench of Bombay High Court alongwith the death sentencereference being Crl. Confirmation case No.6 of 2013 in Special CaseNo.1 of 2013.

91. By a judgment and order dated 21[st], 24[th], 25[th] March, 2014,the Division Bench of Bombay High Court confirmed the conviction andsentence of death imposed under Section 302 of the Indian Penal Codeon the accused-appellant. The appeal of the accused-appellant waspartly allowed only to the extent that the conviction of the accused- A

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Aappellant under Section 376 simplicitor was set aside. The State has notfiled any appeal against the judgment and order of the Division Bench.

92. We have considered the evidence on record in detail and wefind absolutely no ground to interfere with the conviction of the accused-appellant, as confirmed by the First Appellate Court.B

93. As argued on behalf of the accused-appellant there may havebeen embellishment of the evidence against the accused-appellant. Theevidence of the PWs 4 and 5 supported by PW-10 can never be thebasis of any conviction and is fraught with inherent inconsistencies.

94. Even assuming that PWs 4 and 5 actually noticed the accused-Cappellant carrying a bag and dumping it in the lane opposite the car shed,this was in the evening of 22.1.2013 whereas the body of the victim wasfirst seen by her parents outside the door of their tenement, well pastmidnight, at around 2.00 a.m.

95. Admittedly, these two witnesses had not noticed anythingDsuspicious. A bag with the body of the child would, in all likelihood, havearoused suspicion. No other material was found to suggest that thebody might have been concealed and/or wrapped and then put in the bagidentified by PW-4 and PW-5. Admittedly, these two witnesses did notexamine the bag carried by the accused-appellant (if at all) closely. NoEcredence can be placed on identification by the PW 4 and 5, of the bagseized and produced by the Police, as the same bag carried by theaccused-appellant. The identification is preposterous.

96. It is equally true that none of the witnesses except PW-18,Asha, wife of the accused-appellant to whom the accused-appellantconfessed his guilt and the PW-12, a Pancha, in whose presence theFaccused-appellant made extra judicial confession to the Police, is relevantto the guilt of the accused-appellant. However, it is reiterated at the costof repetition that the forensic evidence supported by the evidence ofPW-18 establishes the guilt of the appellant beyond reasonable doubt.We, thus, confirm the conviction of the accused-appellant for the offencesGunder Sections 302, 376(2)(f), 377 of the IPC read with Sections 3, 4and 5 of the POCSO.

97. The question is, whether death sentence imposed on theaccused-appellant for offences under Section 302 should be confirmedor be commuted to life sentence, as argued on behalf of the accused-Happellant.

98. Counsel appearing on behalf of the accused-appellant submittedthat (i) the case did not fall under the category of the rarest of rarecases; (ii) the accused-appellant was not effectively defended beforethe Trial Court and the First Appellate Court; (iii) the hearing given tothe appellant under Section 235(2) of the Code of Criminal Procedureon the quantum of sentence was not an effective hearing; (iv) Counselappearing on behalf of the accused-appellant before the Trial Court onlysubmitted that there were no eye witnesses to the crime, and a lesserpunishment should be imposed having regard to the age of the accused-appellant; (v) the attention of the Court was not drawn to mitigatingcircumstances for imposition of a lesser sentence and mitigatingcircumstances were never considered; (vi) the accused-appellant wasnot given the opportunity to file an affidavit placing on record mitigatingcircumstances; (vii) Trial court did not make any effort to elicit factswhich could be mitigating circumstances against imposition of the extremepenalty of death sentence; (viii) there was no finding recorded either byTrial or the Appellate Court that there was no alternative to the impositionof death sentence and (ix) the Trial Court did not consider the possibilityof reformation or rehabilitation of the accused-appellant. Counsel arguedthat there was no reason to suppose that the accused-appellant wouldbe a continuing threat to society unless hanged.

99. In Bachan Singh v. State of Punjab[1], this Court, whileupholding the validity of death sentence held, that imprisonment for lifewas the rule and death sentence an exception, to be imposed in the“rarest of rare” cases, recording special reasons. In Bachan Singh(supra), this Court in effect held that before exercising discretion toimpose the extreme penalty of death sentence, aggravating and mitigatingcircumstances are required to be considered. Some of the mitigatingfactors would be the extreme mental or emotional disturbance in whichthe offence might have been committed, the possibility that the accused-appellant would not be a continuing threat to society, the possibility ofreformation and rehabilitation of the accused, mental defect or disorderof the accused etc.

100. In Rajesh Kumar vs. State (through Govt. of NCT ofDelhi)[2], this Court observed:- “83. The ratio in Bachan Singh has received approval by the 1 (1980) 2 SCC 684

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international legal community and has been very favourablyreferred to by David Pannick in Judicial Review of the DeathPenalty: Duckworth (see pp. 104-05). Roger Hood andCarolyn Hoyle in their treatise on The Death Penalty, 4th Edn.(Oxford) have also very much appreciated the Bachan Singhratio (see p. 285). The concept of “rarest of rare” which hasbeen evolved in Bachan Singh by this Court is also theinternationally accepted standard in cases of death penalty.

84. Reference in this connection may also be made to the rightbased approach in exercising discretion in death penalty assuggested by Edward Fitzgerald, the British Barrister. [EdwardFitzgerald: The Mitigating Exercise in Capital Cases in DeathPenalty Conference (3-5 June), Barbados: Conference Papersand Recommendations.] It has been suggested therein thatright approach towards exercising discretion in capital casesis to start from a strong presumption against the death penalty.It is argued that “the presence of any significant mitigatingfactor justifies exemption from the death penalty even in themost gruesome cases” and Fitzgerald argues:

“Such a restrictive approach can be summarised as follows:The normal sentence should be life imprisonment. The deathsentence should only be imposed instead of the life sentencein the ‘rarest of rare’ cases where the crime or crimes are ofexceptional heinousness and the individual has no significantmitigation and is considered beyond reformation.”

(Quoted in The Death Penalty, Roger Hood and Hoyle, 4thEdn., Oxford, p. 285.)

86. Taking an overall view of the facts in these appeals andfor the reasons discussed above, we hold that death sentencecannot be inflicted on the appellant since the dictum of theConstitution Bench in Bachan Singh is that the legislativepolicy in Section 354(3) of the 1973 Code is that for a personconvicted of murder, life imprisonment is the rule and deathsentence, an exception, and the mitigating circumstances mustbe given due consideration. Bachan Singh further mandatesthat in considering the question of sentence the court mustshow a real and abiding concern for the dignity of human life which must postulate resistance to taking life through law’sinstrumentality. Except in the “rarest of rare cases” and for“special reasons” death sentence cannot be imposed as analternative option to the imposition of life sentence”.

101. In Rajesh Kumar (supra), the accused was convicted ofassault and murder of two helpless children in the most gruesome manner.This Court held that death sentence could not be inflicted, reiteratingthat life imprisonment was the rule and death sentence an exceptiononly to be imposed in the “rarest of rare cases” and for “special reasons”when there were no mitigating circumstances.

102. Section 235 of the Criminal Procedure Code (Cr.P.C.), readsas follows:- “235. Judgment of acquittal or conviction.—(1) After hearingarguments and points of law (if any), the Judge shall give ajudgment in the case.

(2) If the accused is convicted, the Judge shall, unless heproceeds in accordance with the provisions of Section 360,hear the accused on the question of sentence, and then passsentence on him according to law.”

103. Section 235 (2) of the CrPC is not a mere formality. It isobligatory on the part of the learned trial Judge to hear the accused onthe question of sentence and deal with it. To quote Bhagwati J. in SantaSingh vs. State of Punjab[3].

“2. …...This provision is clear and explicit and does not admitof any doubt. It requires that in every trial before a court ofsessions, there must first be a decision as to the guilt of theaccused. The court must, in the first instance, deliver ajudgment convicting or acquitting the accused. If the accusedis acquitted, no further question arises. But if he is convicted,then the court has to “hear the accused on the question ofsentence, and then pass sentence on him according to law”.When a judgment is rendered convicting the accused, he is,at that stage, to be given an opportunity to be heard in regardto the sentence and it is only after hearing him that the courtcan proceed to pass the sentence.

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3. This new provision in Section 235(2) is in consonance withthe modern trends in penology and sentencing procedures.There was no such provision in the old Code. Under the oldCode, whatever the accused wished to submit in regard to thesentence had to be stated by him before the argumentssconcluded and the judgment was delivered. There was noseparate stage for being heard in regard to sentence. Theaccused had to produce material and make his submissionsin regard to sentence on the assumption that he was ultimatelygoing to be convicted. This was most unsatisfactory. Thelegislature, therefore, decided that it is only when the accusedis convicted that the question of sentence should come up forconsideration and at that stage, an opportunity should begiven to the accused to be heard in regard to the sentence.Moreover, it was realised that sentencing is an important stagein the process of administration of criminal justice- asimportant as the adjudication of guilt-and it should not beconsigned to a subsidiary position as if it were a matter ofnot much consequence. It should be a matter of some anxietyto the court to impose an appropriate punishment on thecriminal and sentencing should, therefore, receive seriousattention of the court.

…..The reason is that a proper sentence is the amalgam ofmany factors such as the nature of the offence, thecircumstances-extenuating or aggravating- of the offence, theprior criminal record, if any, of the offender, the age of theoffender, the record of the offender as to employment, thebackground of the offender with reference to education, homelife, sobreity and social adjustment, the emotional and mentalcondition of ‘the offender, the prospects for the rehabilitationof the offender, the possibility of treatment or training of theoffender, the possibility that the sentence may serve as adeterrent to crime by the offender or by others and the currentcommunity need, if any, for such a deterrent in respect to theparticular type of offence. These are factors which have tobe taken into account by the court in deciding upon theappropriate sentence, and, therefore, the legislature felt that,for this purpose, a separate stage should be provided after DATTATRAYA @ DATTA AMBO ROKADE v. THE STATE OFMAHARASHTRA [INDIRA BANERJEE, J.]

conviction when the court can hear the accused in regard tothese factors bearing on sentence and then pass propersentence on the accused.

4. ….The hearing on the question of sentence, would berendered devoid of all meaning and content and it wouldbecome an idle formality, if it were confined merely to hearingoral submissions without any opportunity being given to theparties and particularly to the accused, to produce materialin regard to various factors bearing on the question ofsentence, and if necessary, to lead evidence for the purposeof placing such material before the court.

104. In Santa Singh (supra), Bhagwati, J. set aside the sentenceof death and remanded the case to the Sessions Court with a direction topass appropriate sentence after giving an opportunity to the petitioner inthe aforesaid case of being heard with regard to the question of sentence,in accordance with the provisions of Section 235(2) CrPC.

105. In Dagdu and Others v. State of Maharashtra[4], a three-Judge Bench of this Court referred to Santa Singh (supra) and heldthat the mandate of Section 235(2) CrPC had to be obeyed in letter andspirit. Chandrachud, J. held:- “79. … The Court, on convicting an accused, mustunquestionably hear him on the question of sentence. But if,for any reason, it omits to do so and the accused makes agrievance of it in the higher court, it would be open to thatCourt to remedy the breach by giving a hearing to the accusedon the question of sentence. That opportunity has to be realand effective, which means that the accused must be permittedto adduce before the Court all the data which he desires toadduce on the question of sentence. The accused may exercisethat right either by instructing his counsel to make oralsubmissions to the Court or he may, on affidavit or otherwise,place in writing before the Court whatever he desires to placebefore it on the question of sentence. The Court may, inappropriate cases, have to adjourn the matter in order togive to the accused sufficient time to produce the necessarydata and to make his contentions on the question of sentence.

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AThat, perhaps, must inevitably happen where the convictionis recorded for the first time by a higher court.”

106. In Machhi Singh & Others v. State of Punjab[5], this Courtheld:- “38. … (iv) A balance sheet of aggravating and mitigatingBcircumstanceshas to be drawn up and in doing so themitigating circumstances haveto be accorded fullweightage and a just balance has to be struck between theaggravating and the mitigating circumstances before theoption is exercised.”

C107. In Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra[6], this Court observed and held:- “157. The doctrine of proportionality, which appears to bethe premise whereupon the learned trial Judge as also theHigh Court laid its foundation for awarding death penaltyDon the appellant herein, provides for justifiable reasoningfor awarding death penalty. However, while imposing anysentence on the accused the court must also keep in mind thedoctrine of rehabilitation. This, considering Section 354(3)of the Code, is especially so in the cases where the court is toEdetermine whether the case at hand falls within the rarest ofthe rare case.

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158. The reasons assigned by the courts below, in our opinion,do not satisfy Bachan Singh test. Section 354(3) of the Codeprovides for an exception. General rule of doctrine ofproportionality, therefore, would not apply. We must read thesaid provision in the light of Article 21 of the Constitution ofIndia. Law laid down by Bachan Singh and Machhi Singhinterpreting Section 354(3) of the Code should be taken tobe a part of our constitutional scheme.

159. Although the Constitutional Bench judgment of theSupreme Court in Bachan Singh did not lay down anyguidelines on determining which cases fall within the “rarestof rare” category, yet the mitigating circumstances listed inand endorsed by the judgment give reform and rehabilitation G

5 (1983) 3 SCC 470H6 (2009) 6 SCC 498

DATTATRAYA @ DATTA AMBO ROKADE v. THE STATE OFMAHARASHTRA [INDIRA BANERJEE, J.]

great importance, even requiring the State to prove that thiswould not be possible, as a precondition before the courtawarded a death sentence. We cannot therefore determinepunishment on grounds of proportionality alone. There isnothing before us that shows that the appellant cannot reformand be rehabilitated.

162. Further indisputably, the manner and method of disposalof the dead body of the deceased was abhorrent and goes along way in making the present case a most foul anddespicable case of murder. However, we are of the opinion,that the mere mode of disposal of a dead body may not byitself be made the ground for inclusion of a case in the “rarestof rare” category for the purpose of imposition of the deathsentence. It may have to be considered with several otherfactors.

108. In Ajay Pandit and Another v. State of Maharashtra[7],this Court held:- “47. Awarding death sentence is an exception, not the rule,and only in the rarest of rare cases, the court could awarddeath sentence. The state of mind of a person awaiting deathsentence and the state of mind of a person who has beenawarded life sentence may not be the same mentally andpsychologically. The court has got a duty and obligation toelicit relevant facts even if the accused has kept totally silentin such situations. In the instant case, the High Court has notaddressed the issue in the correct perspective bearing in mindthose relevant factors, while questioning the accused and,therefore, committed a gross error of procedure in not properlyassimilating and understanding the purpose and objectbehind Section 235(2) CrPC.”

109. In Mohinder Singh v. State of Punjab[8], this Court held:- “22. The doctrine of “rarest of rare” confines two aspectsand when both the aspects are satisfied only then the deathpenalty can be imposed. Firstly, the case must clearly fall 7 (2012) 8 SCC 43

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within the ambit of “rarest of rare” and secondly, when thealternative option is unquestionably foreclosed. Bachan Singhsuggested selection of death punishment as the penalty oflast resort when, alternative punishment of life imprisonmentwill be futile and serves no purpose.

23. In life sentence, there is a possibility of achievingdeterrence, rehabilitation and retribution in different degrees.But the same does not hold true for the death penalty. It isunique in its absolute rejection of the potential of convict torehabilitate and reform. It extinguishes life and therebyterminates the being, therefore, puts an end to anything to dowith life. This is the big difference between two punishments.Thus, before imposing death penalty, it is imperative toconsider the same. The “rarest of rare” dictum, as discussedabove, hints at this difference between death punishment andthe alternative punishment of life imprisonment. The relevantquestion here would be to determine whether life imprisonment

as a punishment would be pointless and completely devoid ofany reason in the facts and circumstances of the case. Asdiscussed above, life imprisonment can be said to becompletely futile, only when the sentencing aim of reformationcan be said to be unachievable. Therefore, for satisfying thesecond aspect to the “rarest of rare” doctrine, the court willhave to provide clear evidence as to why the convict is not fitfor any kind of reformatory and rehabilitation scheme”.

110. In Panchhi and Others v. State of U.P.[9], this Courtobserved:- “20. … No doubt brutality looms large in the murders in thiscase particularly of the old and also the tender-aged child. Itmay be that the manner in which the killings were perpetratedmay not by itself show any lighter side but that is not verypeculiar or very special in these killings. Brutality of themanner in which a murder was perpetrated may be a groundbut not the sole criterion for judging whether the case is oneof the ‘rarest of rare cases’ as indicated in Bachan Singhcase.”

H9 (1998) 7 SCC 177

111. In Bantu v. State of M.P.[10] this Court found that there wasnothing on record to indicate that the appellant had any criminalantecedents nor could it be said that he would be a grave danger to thesociety at large despite the fact that the crime committed by him washeinous. This Court held:- “8. However, the learned counsel for the appellant submitted thatin any set of circumstances, this is not the rarest of the rare casewhere the accused is to be sentenced to death. He submitted thatage of the accused on the relevant day was less than 22 years. Itis his submission that even though the act is heinous, consideringthe fact that no injuries were found on the deceased, it is probablethat death might have occurred because of gagging her mouthand nosetrix [nostril] by the accused at the time of incident so thatshe may not raise a hue and cry. The death, according to him,was accidental and an unintentional one. In the present case, thereis nothing on record to indicate that the appellant was having anycriminal record nor can it be said that he will be a grave danger tothe society at large. It is true that his act is heinous and requires tobe condemned but at the same time it cannot be said that it is therarest of the rare case where the accused requires to be eliminatedfrom the society. Hence, there is no justifiable reason to imposethe death sentence.” (Emphasis supplied by us).

112. In Amit v. State of Maharashtra[11] this Court took intoconsideration, the prior history of the appellant and noted that there wasno record of any previous heinous crime and also there was no evidencethat he would be a danger to society if the death penalty was not awardedto him. The relevant finding (Paragraph 10) is extracted hereinbelow:- “10. The next question is of the sentence. Considering that theappellant is a young man, at the time of the incident his age wasabout 20 years; he was a student; there is no record of any previousheinous crime and also there is no evidence that he will be adanger to the society, if the death penalty is not awarded. Thoughthe offence committed by the appellant deserves severecondemnation and is a most heinous crime, but on cumulativefacts and circumstances of the case, we do not think that thecase falls in the category of rarest of the rare cases…….”

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A113. In the case of Rahul v. State of Maharashtra[12] this Courtnoted that there was no adverse report about the conduct of the appellanttherein either by the jail authorities or by the probationary officer andthat he had no previous criminal record or at least nothing was broughtto the notice of the Court. This Court observed as follows:-B“4. We have considered all the relevant aspects of the case. It istrue that the appellant committed a serious crime in a very ghastlymanner but the fact that he was aged 24 years at the time of thecrime, has to be taken note of. Even though, the appellant hadbeen in custody since 27-11-1999 we are not furnished with anyreport regarding the appellant either by any probationary officerCor by the jail authorities. The appellant had no previous criminalrecord, and nothing was brought to the notice of the Court. Itcannot be said that he would be a menace to the society in future.Considering the age of the appellant and other circumstances, wedo not think that the penalty of death be imposed on him.”

D114. Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat[13]the absence of any involvement in any previous criminal case wasconsidered to be a factor to be taken into consideration for the purposesof awarding the sentence to the appellant therein. This Court held :

“13. The next question that arises for consideration is whetherEthis is a “rarest of rare case”; we do not think that this is a “rarestof rare case” in which death penalty should be imposed on theappellant. The appellant was aged 36 years at the time of theoccurrence and there is no evidence that the appellant had beeninvolved in any other criminal case previously and the appellantFwas a migrant labourer from U.P. and was living in impecuniouscircumstances and it cannot be said that he would be a menace tosociety in future and no materials are placed before us to drawsuch a conclusion. We do not think that the death penalty waswarranted in this case. We confirm conviction of the appellant onall the counts, but the sentence of death penalty imposed on himGfor the offence under Section 302 IPC is commuted to lifeimprisonment.”

12 (2005) 10 SCC 322H13 (2005) 3 SCC 127

115. In Mukesh and Another v. State (NCT of Delhi) andOthers[14], a three-Judge Bench of this Court considered the earlierjudgments of this Court referred to above and deemed it appropriate togive opportunity to the accused to file affidavits to bring on recordmitigating circumstances for reduction of the sentence.

116. The accused-appellant was produced before the Trial courtfor hearing under Section 235(2) of the Code of Criminal Procedure theday after the judgment and order of his conviction was passed. Theaccused-appellant, it appears, did not make any submission on the pointof sentence. This is recorded by the Trial Court. The accused-appellantonly pleaded ‘not guilty’ submitting that there was no eye witness to thecrime. The Trial Court has recorded that Advocate Waghachadu, thelearned Advocate appearing for the accused-appellant submitted that“considering the fact that accused is 53 years old leniency be shown toaccused” in awarding death sentence.

117. The Trial Court has accepted the submission of the learnedSpecial Public Prosecutor that there were no mitigating circumstancesto award life imprisonment instead of death sentence. The Special PublicProsecutor submitted that the offences had been committed with extremedepravity.

118. It may be pertinent to note that in awarding death sentence,the trial court referred to and relied upon two judgments of this Court ofaffirmation of death sentence, that is, Rajendra Prahladrao Wasnik v.State of Maharashtra[15]and Mohd. Manan @ Abdul Mannan v. Stateof Bihar[16]. On review of both the judgments, death sentence has beencommuted to imprisonment for life.

119. In Haru Ghosh vs. State of West Bengal[17], this Courtcommuted death sentence to life imprisonment in the case of a dastardlymurder of two helpless persons for no fault of theirs. This Court, however,in commuting death sentence took into consideration the followingfactors:- “i. There was no pre-meditation on the part of the accused;

ii. The act was on the spur of the moment; 14 (2017) 3 SCC 717

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Aiii. The accused was not armed with any weapon;

iv. It was unknown under what circumstances the accused hadentered the house of the deceased and what prompted him toassault the boy; and

v. The cruel manner in which the murder was committed couldBnot be the guiding factor and the accused himself had two minorchildren.”

120. In Haru Ghosh (supra), this Court observed, “….the cruelmanner in which the murder was committed and the subsequentaction on the part of the accused in severing the parts of the bodyCof the deceased, do not by themselves become the guiding factor infavour of death sentence.”

121. In Lehna vs. State of Haryana[18], even though three liveshad been lost by reason of the crime, this Court modified the punishmentby commuting death sentence to life imprisonment, observing that thereDwas no evidence of any diabolic planning to commit the crime, thoughthe act was cruel.

122. In this case too there is no evidence at all of any diabolicplanning to commit the crime though the crime was undoubtedly crueland heinous. The circumstances in which the victim entered the tenementEof the accused-appellant are not known. There is no evidence to showthat the accused-appellant took the victim to his tenement. Thoughunlikely, she might even have gone to his tenement on her own.

123. Under the Indian Penal Code and, in particular, Section 299thereof, whoever causes death by doing an act either with the intentionFof causing death or with the intention of causing such bodily injury as islikely to cause death or with the knowledge that he is likely, by such act,to cause death, commits the offence of culpable homicide.

124. As per the definition of Section 300 of the IPC, except incases excepted thereafter, culpable homicide is murder if the act byGwhich the death is caused (i) is done with the intention of causing deathor (ii) if it is done with the intention of causing such bodily harm as theoffender knows to be likely to cause the death of the person to whomthe harm is caused or (iii) if the act is done with the intention of causingbodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or (iv) if theperson committing the act knows that it is so imminently dangerous thatit must, in all probabily, cause death or such bodily injury as is likely tocause death and commits such act without any excuse for incurring therisk of causing death or such injury as aforesaid.

125. As a mature man, over fifty years of age, the accused-appellant should have known that the rape of a five year old child by anadult was dangerous and could lead to such injuries, as was in allprobability likely to cause death.

126. The death of the deceased victim was not caused under anyprovocation, not to speak of sudden provocation. No such defence hasbeen taken by the accused-appellant. Nor is it anybody’s case that thedeath was caused in legitimate exercise in good faith of any right of theaccused-appellant, whether of private defence or otherwise. The deathhas been caused without any provocation.

127. The totality of the injuries support the finding of the TrialCourt and the First Appellate Court that the accused-appellant murderedthe deceased victim. Though the act of the accused squarely amountsto rape and murder, there is not a scrap of material to show that theintention of the accused-appellant was to kill the minor child.

128. The PW-1, Dr. Bhusan Jain who had prepared the post mortemreport opined that the cause of death was asphyxia due to smothering,associated with head injuries and sexual assault. Dr. Bhusan Jain deposedthat all the 5 injuries were possible by repeated sexual acts and forcefulpenetration. He opined that all the injuries were sufficient to causeinstant death in the ordinary course.

129. Being a man of about 50 years of age, the accused-appellantshould have known that repeated sexual assault could have led to thedeath of the victim and in fact did lead to the death of the victim, onlyfive years of age. The accused-appellant has rightly been convicted ofmurder apart from child rape. However, there is no evidence at all director circumstantial which establishes that the intention of the accused-appellant was to kill the deceased victim.

130. Considering the totality of the evidence before us, we upholdthe conviction of the accused-appellant. However, in view of the evidenceof the post mortem report of Dr. Bhusan Jain, we deem it appropriate tomodify the sentence by reducing the same to imprisonment for life.

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A131. There can be no doubt that rape and murder of a 5 years oldgirl shocks the conscience. It is barbaric. There is, however, no evidenceto support the finding that the murder was pre-meditated. The petitionerdid not carry any weapon. The possibility that the accused-appellantmight not have realized that his act could lead to death cannot altogetherbe ruled out. Moreover, the Trial Court has apparently not consideredBthe question of whether the crime is the rarest of rare crimes as mandatedby the Supreme Court in Bachan Singh (supra).

132. In Review Petition (Crl.) No.306-307 of 2013 (RajendraPrahladrao Wasnik v. State of Maharashtra) the Court commutedthe death sentence, in a case of rape and murder of a three year oldCchild to life imprisonment, inter alia, observing that the case did not fallin the category of the rarest of the rare.

133. As argued by learned counsel appearing on behalf of thepetitioner, the High Court found the offence to be in the category of therarest of rare cases, having regard to the nature of the offence and theDage of the victim.

134. Counsel for the accused-appellant submitted that the brutalityof the crime and age of the victim was not ground enough to inflict deathsentence. Learned counsel submitted that the petitioner had beenconvicted on circumstantial evidence, based on faulty investigation.E

135. However, as observed above, the forensic evidenceconstrued in the light of the evidence of PW-18, Asha, wife of theaccused-appellant, that the accused-appellant had confessed to the crimeto her, establishes the guilt of the accused-appellant and death sentencecan be imposed even where conviction is based on circumstantial evidence,Fprovided the case falls in the category of the rarest of rare and there areno mitigating circumstances and no possibility of reform or rehabilitationof the convict.

136. On analogy of the reasoning in Review Petition (Crl) No.306-307 of 2013 in the case of Rajendra Prahladrao Wasnik v. StateGof Maharashtra, this Court is constrained to hold that this case doesnot fall in the category of the rarest of rare cases. Moreover, the accused-appellant was not defended effectively. The lawyer representing theaccused-appellant only pleaded not guilty, emphasizing that there wasno eye witness to the incident and sought leniency only on the ground ofthe age of the accused-appellant which was 53 years.H

137. The accused-appellant neither sought nor was given theopportunity to file any affidavit placing on record relevant mitigatingcircumstances. The legal assistance availed by the accused-appellantwas patently not satisfactory and he was not accompanied by a socialworker. No attempt was made to place on record mitigatingcircumstances. No argument was advanced to the effect that therewas no similar case against the accused-appellant. In the absence ofany arguments, the Trial Court did not consider the question of whetherthe accused-appellant could be reformed.

138. Considering the nature of the crime against a five year oldchild, the Trial Court imposed the extreme penalty of death withoutdeciding the question of whether there was no alternative to imposingdeath sentence on the accused-appellant. There is no finding that in theabsence of death sentence, the accused-appellant would continue to bea threat to the society. The question of whether the accused-appellantcould be reformed, had not at all been considered.

139. As held in Dagdu (supra) irrespective of whether theseissues were raised on behalf of the accused, the Court is obliged on itsown to elicit facts relevant to the question of existence of mitigatingcircumstances. The Court made no attempt to elicit any facts relevantto the sentence.

140. For effective hearing under Section 235(2) of the Code ofCriminal Procedure, the suggestion that the court intends to impose deathpenalty should specifically be made to the accused, to enable the accusedto make an effective representation against death sentence, by placingmitigating circumstances before the Court. This has not been done. TheTrial Court made no attempt to elicit relevant facts, nor did the TrialCourt give any opportunity to the petitioner to file an affidavit placing onrecord mitigating factors. As such the petitioner has been denied aneffective hearing.

141. Contrary to the dictum of this Court, inter alia, in Dagdu(supra) and Santa Singh (supra) the petitioner was not given a real,effective and meaningful hearing on the question of sentence underSection 235(2) of the Cr.P.C. The death sentence imposed on the petitioneris liable to be commuted to life imprisonment on this ground.

142. There can be no doubt that the rape and murder of a fiveyears old child is absolutely heinous and barbaric, but as observed above,it cannot be said to be in the category of rarest of rare cases.

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A143. In Mulla and Another v. State of U.P.[19], this Court hasaffirmed that it is open to the Court to prescribe the length of incarceration.This is especially true in cases where death sentence has been replacedby the life imprisonment. This Court observed, “the court should befree to determine the length of imprisonment which will suffice theoffence committed.”B

A

144. Even though life imprisonment means imprisonment for entirelife, convicts are often granted reprieve and/or remission of sentenceafter imprisonment of not less than 14 years. In this case, consideringthe heinous, revolting, abhorrent and despicable nature of the crimecommitted by the appellant, we feel that the appellant should undergoCimprisonment for life, till his natural death and no remission of sentencebe granted to him.

145. For the above reasons, we are of the view that the presentappeals are one of such cases where we would be justified in holdingthat confinement till natural life of the accused-appellant shall fulfil theDrequisite criteria of punishment considering the peculiar facts andcircumstances of the present case. Accordingly, the death sentenceawarded by the trial court is hereby modified to “life imprisonment” i.e.,imprisonment for the natural life of the appellant herein. The appeals areallowed accordingly to the extent indicated above.

E

Kalpana K. Tripathy

Appeals allowed.

F

G