RAVISHANKAR @ BABA VISHWAKARMA versus THE STATE OF MADHYA PRADESH on 3 October 2019

RAVISHANKAR @ BABA VISHWAKARMA

v.

THE STATE OF MADHYA PRADESH

(Criminal Appeal Nos. 1523-1524 of 2019)

OCTOBER 03, 2019

[R. F. NARIMAN, R. SUBHASH REDDY

AND SURYA KANT, JJ.]

Sentence/Sentencing: Rape/murder of minor – Convictionbased on circumstantial evidence – Imposition of death sentence –Held: There is no absolute principle of law that no death sentencecan be awarded in a case where conviction is based on circumstantialevidence – Such a standard would be ripe for abuse by seasonedcriminals who always make sure to destroy direct evidence – Further,in many cases of rape and murder of children, the victims owing totheir tender age can put up no resistance – In such cases, it isextremely likely that there would be no ocular evidence – It cannot,therefore, be said that in every such case notwithstanding that theprosecution has proved the case beyond reasonable doubt, the Courtmust not award capital punishment for the mere reason that theoffender has not been seen committing the crime by an eye-witness– Such a reasoning, if applied uniformly and mechanically will havedevastating effects on the society which is a dominant stakeholderin the administration of our criminal justice system.

Sentence/Sentencing: Death sentence – Residual doubt – ThisCourt has increasingly become cognizant of ‘residual doubt’ in manyrecent cases which effectively create a higher standard of proofover and above the ‘beyond reasonable doubt’ standard used atthe stage of conviction, as a safeguard against routine capitalsentencing, keeping in mind the irreversibility of death.

Penal Code, 1860: ss.363, 366, 376(2)(m), 376(2)(n), 376-A, 302 and 201 – Rape and murder of minor girl – Trial court heldappellant guilty of kidnapping a 13 years old girl committing rapeon her and killing her by throttling and thereafter destroyingevidence by throwing her half naked body in dry well – Trial courtas well as High Court awarded death sentence – On appeal, held:

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AThis is a case of circumstantial evidence which is supported byocular and medico-scientific evidence – DNA evidence using theestablished STR technique proved that appellant committed sexualintercourse with the deceased – Various injuries on her body alongwith signs of struggle proved that such crime was committed in abarbaric manner – A slipper was recovered through the appellantBwhich was later identified as belonging to the deceased, givingfinality to the circumstantial chain – The findings of kidnapping,rape, resultant death and destruction of evidence were provedbeyond reasonable doubt, as evidenced by concurrent findings ofthe Courts below – As regards the sentencing, there were someCresidual doubts – A crucial witness for constructing the last seentheory, was partly inconsistent in cross-examination and quicklyjumped from one statement to the other – Two other prosecutionwitnesses had seen the appellant feeding biscuits to the deceasedone year before the incident and their long delay in reporting thesame failed to inspire confidence – The mother of the deceasedDdeposed that the wife and daughter of the appellant came to herhouse and demanded the return of the money which she hadborrowed from them but failed to mention that she suspected theappellant of committing the crime initially – Ligature marks on theneck evidencing throttling were noted by doctors and in theEpostmortem report, but find no mention in the panchnama preparedby the police – Viscera samples sent for chemical testing were spoiledand hence remained unexamined – Although nails’ scrappings ofthe accused were collected, no report was produced to show thatDNA of the deceased was present – All these factors of course haveno impact in formation of the chain of evidence and are whollyFinsufficient to create reasonable doubt to earn acquittal – However,‘residual doubt’ as a mitigating factor would effectively raise thestandard of proof for imposing the death sentence – This case fallsshort of the ‘rarest of rare’ cases where the death sentence alonedeserves to be awarded to the appellant – Death penalty is set asideGand is substituted with the life imprisonment.

Penal Code, 1860: s. 376A – Conviction under – High Courtwhile confirming death sentence observed that the girl was foundbleeding due to forcible sexual intercourse - which fact, however, isnot supported by medical evidence – Held: Such erroneous finding H

RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OFMADHYA PRADESH

has no impact on conviction under s.376A for a bare perusal of thesection shows that only the factum of death of the victim during theoffence of rape is required, and such death need not be with anyguilty intention or be a natural consequence of the act of rape only– It is worded broadly enough to include death by any act committedby the accused if done contemporaneously with the crime of rape –Any other interpretation would defeat the object of ensuring safetyof women.

Partly allowing the appeals, the Court

Conclusion

Partly allowing the appeals, the Court

HELD: 1. The prosecution effectively proved that deceasedwas ‘last seen’ with the appellant and on earlier occasions toowas seen being enticed by the appellant. DNA evidence usingthe established STR technique proved that appellant committedsexual intercourse with the deceased. Deceased was proved tobe a minor using school records. Various injuries on her bodyalong with signs of struggle proved that such crime was committedin a barbaric manner. A slipper was recovered through theappellant which was later identified as belonging to the deceased,giving finality to the circumstantial chain. No effective challengewas made against any medical or DNA reports. There can thusbe no second opinion against the guilt of the appellant and hisconsequential conviction. [Para 37][301-D-G]

Pantangi Balarama Venkata Ganesh v. State of AndhraPradesh (2009) 14 SCC 607 : [2009] 11 SCR 636;Dharam Deo Yadav v. State of Uttar Pradesh (2014) 5SCC 509 : [2014] 8 SCR 650 – relied on.

2. The Trial Court awarded death sentence after drawing abalance-sheet weighing ‘mitigating’ circumstances against`aggravating’ circumstances. The High Court noted that therewas bleeding due to sexual intercourse and that there was nopossibility of reform owing to the appellant’s denial of his crimes.Accordingly, it held that awarding death penalty was justified. TheHigh Court while confirming death observed that the girl wasfound bleeding due to forcible sexual intercourse - which fact,however, is not supported by medical evidence. However, sucherroneous finding has no impact on conviction under Section 376A

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Aof the I.P.C. for a bare perusal of the section shows that only thefactum of death of the victim during the offence of rape is required,and such death need not be with any guilty intention or be a naturalconsequence of the act of rape only. It is worded broadly enoughto include death by any act committed by the accused if doneBcontemporaneously with the crime of rape. [Paras 39, 60][302-C-D; 309-C-E]

Bachan Singh v State of Punjab (1980) 2 SCC 684 –followed Rameshbhai Chandubhai Rathod v. State of GujaratC(2011) 2 SCC 764 : [2011] 1 SCR 829; AshokDebbarma v. State of Tripura (2014) 4 SCC 747 : [2014]4 SCR 287; Krishnan v. State (2003) 7 SCC 56 : [2003]1 Suppl. SCR 771 – relied on.

3. In the instant case, there are some residual doubts. ADcrucial witness for constructing the last seen theory, P.W.5 ispartly inconsistent in cross-examination and quickly jumps fromone statement to the other. Two other witnesses, P.W.6 and P.W.7had seen the appellant feeding biscuits to the deceased one yearbefore the incident and their long delay in reporting the sameEfails to inspire confidence. The mother of the deceased deposedthat the wife and daughter of the appellant came to her house anddemanded the return of the money which she had borrowed fromthem but failed to mention that she suspected the appellant ofcommitting the crime initially. Ligature marks on the neckevidencing throttling were noted by P.W.20 and P.W.12 and inFthe postmortem report, but find no mention in the panchnamaprepared by the police. Viscera samples sent for chemical testingwere spoiled and hence remained unexamined. Although nails’scrapings of the accused were collected, no report has beenproduced to show that DNA of the deceased was present. AnotherGinitial suspect, ‘B’ absconded during investigation, hence, gaverise to the possibility of involvement of more than one person.All these factors of course have no impact in formation of thechain of evidence and are wholly insufficient to create reasonabledoubt to earn acquittal. Use of such ‘residual doubt’ as a mitigating H

Facts

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factor would effectively raise the standard of proof for imposingthe death sentence, the benefit of which would be availed of notby the innocent only. However, it would be a misconception tomake a cost-benefit comparison between cost to society owingto acquittal of one guilty versus loss of life of a perceived innocent.This is because the alternative to death does not necessarily implysetting the convict free. Thus this case falls short of the ‘rarestof rare’ cases where the death sentence alone deserves to beawarded to the appellant. In the light of all the cumulativecircumstances that the cause of justice will be effectively servedby invoking the concept of special sentencing theory. The deathpenalty as awarded by the courts below is set aside and issubstituted with the imprisonment for life. [Paras 61, 62, 64,65][310-E-H; 311-A-B, D-F]

Swamy Shraddananda @ Murali Manohar Mishra v.State of Karnataka (2008) 13 SCC 767 : [2008] 11SCR 93; Union of India v. Sriharan alias Muruganand others (2016) 7 SCC 1 : [2015] 14 SCR 613 –relied on.

Bhupinder Sharma v. State of Himachal Pradesh (2003)8 SCC 551 : [2003] 4 Suppl. SCR 792; Machhi Singhand others v. State of Punjab (1983) 3 SCC 470 : [1983]3 SCR 413; Mukesh and another v. State (NCT of Delhi)and others (2017) 6 SCC 1 : [2017] 6 SCR 1; VasantaSampat Dupare v. State of Maharashtra (2017) 6 SCC631 : [2017] 3 SCR 850; Khushwinder Singh v. Stateof Punjab (2019) 4 SCC 415[2019] 3 SCR 446;Manoharan v. Inspector of Police (2019) SCC onlineSC 951; Rajindra Pralhadrao Wasnik v. State ofMaharashtra in Review Petition (Crl.) Nos. 306-307/2013 – referred to.

State v. McKinney 74 S.W.3d 291 (Tenn. 2002); Herrerav. Collins, 506 U.S. 390 (1993) – referred to.

Report of the Committee on Amendments to Criminal Law,headed by Justice J.S. Verma, former Chief Justice of India –referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1523-1524 of 2019.

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From the Judgment and Order dated 06.12.2016 of the High Courtof Madhya Pradesh Principal Seat at Jabalpur in Criminal AppealNo.2175 of 2016 and against Criminal Reference 2 of 2016.

Ms. Asha Gopalan Nair, Ms. Nivedita Nair, Advs. for the Appellant.FSunil Fernandes, AAG, Zeeshan Diwan, Ms. Nupur Kumar,Ms. Priyansh Indra Sharma, Arjun Garg, Advs. for the Respondent.

The Judgment of the Court was delivered by SURYA KANT, J.

1. Delay condoned. Leave granted.

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2. Hovering between life and death, the appellant assails thejudgment dated 6[th] December, 2016 passed by the High Court of MadhyaPradesh at Jabalpur whereby the death reference made by the IIIrdAdditional Sessions Judge, Gadarwara, District Narsinghpur (M.P.) hasbeen confirmed and the appellant’s criminal appeal has been dismissed.

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Background:

3. The appellant was tried for having committed offences underSections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302and 201 of the Indian Penal Code (for short IPC) and alternatively underthe corresponding provisions of the Protection of Children from SexualOffences Act, 2012 (for short ‘POCSO Act’). Through judgment andorder dated 19[th] July 2016, the Trial Court held the appellant guilty ofkidnapping a 13 year-old girl, committing rape on her, killing her bythrottling and thereafter destroying the evidence by throwing her halfnaked body in a dry well. These crimes were held as being ‘rarest of therare’ and the appellant was sentenced to death under Section 376-A ofthe Indian Penal Code, 1860 (I.P.C.). In terms of Section 366 of theCode of Criminal Procedure, 1973 (Cr.P.C.), the Trial Court made areference to the High Court for confirmation of the death sentence. Theappellant also filed criminal appeal challenging this judgment and orderpassed by the Trial Court. The High Court on 6[th] December 2016, througha common order, both dismissed his appeal and confirmed the Trial Court’sdeath reference giving rise to this special leave petition.

4. At the outset, it must be mentioned that when the appellant’sspecial leave petition came up for hearing before a Three Judge Benchof this Court on 10[th] January, 2018, the following order was passed:

“Mr. Arjun Garg, learned counsel for the State prays fortwo weeks’ time to argue the matter on the conversion ofsentence from death to life, as we are not inclined tointerfere with the conviction.

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5. Thus, the limited issue which survives for our consideration iswhether or not the appellant deserves to be imposed with the extremesentence of death penalty?

6. As noted by this Court in Bhupinder Sharma v. State ofHimachal Pradesh[1], that the mandate of not disclosing identities of thevictims of sexual offences under Section 228A of I.P.C. ought to beobserved in spirit even by this Court:

1 (2003) 8 SCC 551

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SUPREME COURT REPORTS

A“2. We do not propose to mention name of the victim. Section228-A of the Indian Penal Code, 1860 (in short the “IPC”) makesdisclosure of identity of victim of certain offences punishable.Printing or publishing name of any matter which may make knownthe identity of any person against whom an offence under Sections376, 376-A, 376-B, 376-C or 376-D is alleged or found to haveBbeen committed can be punished. True it is the restriction doesnot relate to printing or publication of judgment by High Court orSupreme Court. But keeping in view the social object of preventingsocial victimization or ostracisms of the victim of a sexual offencefor which Section 228-A has been enacted, it would be appropriateCthat in the judgments, be it of High Court or lower Court, thename of the victim should not be indicated. We have chosen todescribe her as ‘ victim’ in the judgment.”

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We are thus not disclosing the victim’s name and instead arereferring to her as the “deceased” throughout this judgment.

DRelevant Facts:

7. The necessary facts are to the following effect: P.W.3(Purushottam Kaurav – grandfather of the deceased), resident of villageBaglai filed a report at the Police Station at Gotitoria on 22[nd] May, 2015at about 4.00 p.m. giving information of the disappearance of his 13 yearEold granddaughter. The deceased and her 11 year old brother Harinarayanwere children of the informant’s younger son, Satyaprakash and hadbeen staying with their mother at the latter’s parental home in theneighbouring village, Chargaon, for the last four months. The deceasedvisited the informant’s home in village Baglai with her mother at aroundF10 a.m. the previous day. The deceased did a few household choreswhile her mother cooked food for the family. Later, she went out to playwith her friend who lived in the neighbourhood. Upon returning back shetold her mother that she was not feeling good and requested that theyshould return back to her maternal uncle’s home in Chargaon. Her motherassured her that they would return later that afternoon and both of themGwent to sleep. Upon waking up at 3.00 p.m., the mother discovered thatthe deceased was not around. The mother made unsuccessful enquiriesin the neighbourhood and later asked the deceased’s 11 year old brotherto go and enquire whether she had gone to Chargaon on her own. Thebrother came back in the evening without any news of the victim.HThinking that their daughter might have gone to her paternal aunt’s home

in the nearby village of Aadegaon, both parents slept. Next morningenquiries were made at Aadegaon but it was informed that the deceasedhad not gone there either. Worried, the mother herself left for her parentalhome at around 9-10 a.m. and informed her brother Vishram that thevictim was missing. Vishram and the deceased’s mother set out on awide search in the neighbourhoods of Chargaon with little result. Whilstreturning back to Baglai, the mother identified the deceased’s salwarand one chappal on the embankment of the water-channel which dividedthe villages of Baglai and Chargaon. Upon reaching her matrimonialhome in Baglai, the mother informed her father-in-law about herdaughter’s disappearance who then approached the police. P.W.3thereafter narrated facts of deceased’s disappearance and gavedescription of his grand daughter who was studying in Class 6 at thattime. The Police, accordingly, registered a crime case under Section363, IPC.

8. Subsequently the police took P.W.3 to the spot where the salwarand the chappal were recovered. Upon a local search of the area withsome villagers and relatives, the semi-nude body of the deceased wasdiscovered lying in a supine position in a dry well. The dead body wastaken out of the well and it was duly identified by her grandfather, P.W.3.A spot map of the place of occurrence was drawn, and SeizurePanchnama of black colour salwar and one Chappal of the deceasedwas also prepared.

9. P.W.20 (Harsha Singh, Senior Scientific Officer) advised thepolice on handling the body of the deceased and later inspected thedecomposing dead body at 9:45 p.m. at the Government Hospital, Chichli.After noticing various injuries including ligature marks on the neck, shegave a report that death of the deceased was homicidal. P.W.12(Dr. Kinshu Jaiswal) conducted postmortem of the body next morningat 9 a.m. Examining the decayed state of the body, P.W. 12 estimatedtime of death 48-72 hours before. She noted various injuries on the bodyincluding a ruptured hymen, congested trachea and pale lungs. Vaginalslides were prepared and sent for inspection. Hyoid bone, femur boneand three jars of the viscera (containing pieces of stomach, small intestine,heart, lungs, liver, spleen, kidney as well as separate salt solution sample)were also sent for examination. Importantly, it was noticed that the skulland vertebrae were intact. The vaginal slides, salwar and fiber chappalof the deceased were sent to Forensic Science Laboratory, Sagar (FSL, A

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ASagar) for DNA profiling, whereas the sealed container(s) with differentparts of the deceased’s body were sent to the Medico-legal Institute,Bhopal for chemical testing. Subsequently, the dead body of the deceasedwas handed over to the family for last rites and statements of somewitnesses were recorded under Section 164 of Cr.P.C. before a JudicialMagistrate.B

10. During the course of investigation, blood samples of varioussuspects were taken for DNA analysis. As part of the first batch, bloodsamples of Hargovind Kaurav, Nandi alias Anand Vanshkar and Babaalias Ashok Kaurav were taken and sent to FSL, Sagar for DNA matchingon 14[th] June, 2015. Later on 22[nd ]June, 2015 samples of the appellantC(Baba alias Ravishankar Vishwakarma), Roopram alias Ruppu Kauravand Manoj alias Halke Yadav was similarly sent for DNA analysis. Afterconfirmation by the FSL stating that only the DNA extracted from theappellant matched with that on the vaginal slide of the deceased, theappellant was arrested on 20[th] July, 2015. Charge sheets were filedDagainst him by the investigating agency on 18[th] September, 2015.

Trial Court’s Analysis:

11. The Trial Court formulated various questions for considerationincluding determination of the age of the deceased, factum of kidnappingby accused, commission of rape, causing death by throttling andEdestruction of evidence by dumping the dead body by the appellant.

12. With a view to bring home the appellant’s guilt, the prosecutionexamined as many as 24 witnesses, whereas none were examined bythe appellant in defence. A brief summarisation of the testimonies ofimportant witnesses and evidences has been made hereunder.

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13. P.W.1 (Sukhram Kotwar) who was posted as Gram Kotwarat Baglai, admitted to accompanying the grand father of the deceased(P.W.3) to the police station to lodge a missing report of the deceased.He also found location of the deceased’s body and was a witness toseizure of the slipper, panchnama and later to the collection of threeGblood samples and arrest of the appellant by the police.

14. P.W. 2 (Shobhabai — mother of the deceased) stated in herdeposition that she knew the appellant, for she had borrowed moneyfrom his family in the past. She claimed to be living in her parental homein village Chargaon, which was separated by a water channel from her H

matrimonial village of Baglai, since the past few months for treatment ofan eye injury. She had returned to her in-laws’ house on the morning of21[st] May, 2015 with the deceased. When she reached home, the wifeand daughter of the accused came and asked her to repay the borrowedmoney. After some time her daughter (the deceased) told her that shewas going to play with her friend Priyanka at her house. The deceasedcame back from her friend’s house and told P.W.2 that she was notfeeling good and requested that she be taken back to her maternal uncle’shouse in Chargaon. At about 3.00 p.m., the witness found that herdaughter was not there at their home. Her husband enquired fromPriyanka’s house but came to know that deceased was not there. P.W.2,thereafter, called her son and sent him to her parental home at Chargaonabout 5.00 p.m. Her son came back home and informed that the deceasedwas not found in Chargaon also. She again sent her son to Chargaon tolook out for her properly. It was, however, confirmed that the deceasedhad not gone to Chargaon and she could not be found anywhere till 6.00p.m. Thinking that the deceased might have gone to her parental aunt’shouse in Aadegaon, P.W.2 and her husband slept for the night. The nextmorning P.W.2 got a telephonic call made to Satyaprakash’s sister inAadegaon but failed to trace the deceased there as well. A search wasmade on the motorcycle at the houses of various relatives and whileP.W.2 was returning to Baglai from her parental home along with hernephew, Dharmendra, she spotted and identified the salwar and slipperof the deceased which were lying on the roadside on the embankmentof the water channel separating Baglai from Chargaon. P.W.2 theninformed her father-in-law, P.W.3, and then the matter was reported tothe Police. The Police thereafter started looking for her daughter andthen she got to know that the dead body of her daughter was locatedinside the well of one Darshan Kaurav. P.W.2 did not suspect anyone atthat time. In cross-examination she admitted that she had told the policethat one Abhishek alias Pillu of the village used to offer paan masala tothe deceased and that police had also gone to Baba alias Ashok’s housefor his interrogation and for conducting Narco test but he fled the nextday from the village.

15. P.W.3 (Purushottam Kaurav) — grandfather of the deceased-victim has deposed regarding lodging of the missing report with the Policeand also stated that he identified the dead body of his granddaughterupon recovery from a dry well. He too admitted that a person named AB

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ABaba alias Ashok was called by the Police but he had fled and that somemore persons were also interrogated by the Police.

16. P.W.4 (Satyaprakash), the father of the deceased, narratedthe efforts put in by him and other relatives for the search of his daughterand how during that search the dead body was found in the dry wellBconstructed in the field of Darshan Kaurav.

17. P.W.5 (Sharda) who is well acquainted with the appellant aswell as the family of the deceased is also a crucial prosecution witness.He deposed that on the fateful day at about 3.00 p.m. he, along with hiswife Aalop Bai, was going on a bicycle when both of them spotted theCappellant with the deceased who was wearing a black frock and blackpant ‘near the peepal tree, near the field of Natthu Patel’. He has furtherstated that his statement was recorded by the Police two days after theincident and that “it is true that the Police had committed assault withme also. It is true that Police had stated that they would arrest the rascaland they committed an assault so I had stated out of nervousness.” InDthe very next breath, he, however, denied that the police had assaultedand were forcing him to give false testimony before the Court.

18. P.W.6 (Itta alias Kichchu) has stated that about a year prior tothe incident while he had gone to defecate near a reservoir after disposingof some cowdung, he had seen the appellant feeding biscuits to theEdeceased at the water channel near the shrubs. He told this fact toP.W.7 (Nimma Jeeji), who was harvesting sugarcane in the field of oneShatrughn Patel. In his cross-examination, he admitted that his statementwas recorded one and a half months’ after the incident by the Police.

19. P.W.7 (Nimma Bai) endorsed the statement of P.W.6 to theFextent that about one year before the occurrence, P.W.6 had told herthat the appellant was feeding biscuits to the deceased. She has admittedin her cross-examination that she herself had not seen the appellantfeeding biscuits to the deceased.

20. P.W.10 (Kuldeep Kaurav, a teacher in the Government MiddleGSchool, Chargaon) produced school records to prove that the deceasedwas admitted in 6[th] standard on 16[th] June, 2014 and as per the date ofher birth she was hardly 13 years old.

21. P.W.13 (Rajesh Kaurav) who was Patwari, testified that heprepared spot map of the place of incident and that afterwards he tookH

signatures of people present in the vicinity and dispatched them to theStation House Officer. In cross-examination, he admitted that details ofthe well were not mentioned in the spot map, but volunteered that thewell was abandoned and had shrubs growing in it and the grass/cropsgrowing outside had hampered the well’s visibility from the Baglai-Chargaon road which was situated 20 feet away.

22. P.W.14 (Hargovind Kaurav) was the cousin of the deceasedwho admitted to seeing the deceased’s body in a dry well in a supineposition. He stated that the well was not visible from the road andvolunteered that he was witness to the appellant’s statement(s) beforethe police and also witnessed seizure of the second slipper from a nearbywater channel later.

23. P.W.15 (Prakashchand Mehra) is son of the Kotwar ofChargaon and testified that the spot map and panchnama were preparedbefore him, blood samples of three suspects (including appellant) weretaken in his presence and the missing slipper was seized by the policewith him. In cross-examination, however, he admitted that he was notpresent during interrogation of the appellant by the police.

24. P.W.17 (Sanjay Kumar Nagvanshi) was the Tehsildar atGadarwara in August, 2015. He stated that he got conducted identificationproceedings to match the slipper recovered through the appellant toensure that it belonged to the deceased. He testified to procuring similarlooking black slippers from his staff members and mixing them with theslipper received from the police station. Although both P.W.2 and P.W.3were called by him, he testified that only P.W.2 came into his office andidentified the deceased’s slipper correctly.

25. P.W.18 (M.D. Yadav) was posted as Assistant Sub-Inspectorat police station Chichli and was the police officer who lodged the missingreport on the basis of information given by P.W.3 on the afternoon of22[nd] May, 2015. He also testified to seizing the slipper and salwarpresented by P.W.2.

26. P.W.19 (C.M. Shukla) was posted as S.H.O. who got preparedspot map and was also present during identification proceedings of thedeceased’s body. Upon being confronted during cross-examination as towhy the time of disappearance was recored as 10.00 p.m. in theRoznamcha, he explained that it was a mistake.

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A27. P.W.21 (Krishnakant Kaurav) was posted as a Gram RozgarSahayak in Gram Panchayat Chargaon and testified to witnessinginterrogation of the appellant, especially his disclosure of location of themissing slipper and recovery of the same.

28. P.W.22 (Niyazul Khan) was the Inspector who got blood sampleBof the appellant extracted at the Government Hospital, Chichli andprepared seizure memo of sealed vials containing blood of the appellantand two others, and forwarded them to FSL Sagar. The Trial Courtrefused permission to the Defence Counsel to ask questions relating tothe FIR, postmortem report and Roznamcha holding that questions relatingto investigation only conducted by the witness could be asked from him.C

29. P.W.23 (D.V.S. Sagar) was posted as Station House Officerat Police Station Chichli and testified to recording memorandum statementof accused in presence of P.W.15 and P.W.20, on which basis he seizedthe missing black fibre slipper of right leg from near the shrubs under atree near the spot of incident in Darshan Kaurav’s field.D

30. P.W.24 (Rajkumar Dixit) was the Head Constable who seizedsealed viscera jars and vaginal slides which were produced by HeadConstable Chetram. He admitted to not checking the sealed parcelshimself and stated that he safely locked them in a locker at the policestation.E

31. Over and above the above-mentioned oral testimonies, wemay now refer to the medico-scientific evidence led by the prosecutionto connect the appellant with the crime.

32. P.W.8 (Dr. R.R. Chaudhary), a Senior Scientific Officer fromFFSL, Sagar has deposed that on 4[th] June, 2015 he examined three exhibits;Slide marked as Ex. A , Salwar marked as Ex. B and Chappal markedas Ex. C which belonged to the deceased. In the course of examination,human sperms were found on the slide (Ex. ‘A’) of the deceased,however, only human blood was found on the salwar (Ex. ‘B’). Noblood or semen was found on the slipper (Ex. ‘C’). The blood group ofGthe blood stained on the salwar could not be detected as a lot of dirt wasstuck on it.

33. P.W.9 (Dr. C.S. Jain) was posted as Forensic Expert-Analysisat Medico-Legal Institute, Bhopal on 12[th] June, 2015 when three viscerajars (Exs. ‘D’, ‘E’ and ‘F’) comprising different parts of the body of H

deceased were received with their seals intact. However, when openedthese viscera samples were discovered in a condition unfit for examinationas the liquid had turned stinky and dusty, and the tissues had decayed.After comparing the postmortem report, evaluation of time and thesequence of the events as also the report of the State Forensic ScienceLaboratory, P.W.9 opined as follows, which could not be discredited atall in his cross-examination:

“12. Opinion :- After the analysis of facts described in thedocuments which have been examined on the basis of my subjectknowledge, articles of books and experience gained from the 10984post mortems conducted by me for continuously more than 33years I am of the opinion that:-

1. The deceased died due to throttling.

2. Sexual intercourse was performed with the deceased beforeher death which amounted to rape on considering the age.

3. The deceased was dragged before her death and injuriesindicating the struggle were also present.

4. The slides and salwar of the deceased were kept for D.N.A.examination. I did not know their result up to the preparation ofthe report otherwise other opinion could also be expressed. Itwould be appropriate to enclose the said report in the case afterobtaining it immediately. If the person/s performing sexualintercourse with the deceased are known then the D.N.A of theirsperms should be matched with the D.N.A. of the sperms presentin the vaginal slides because if they matched then it would bescientifically confirmed that the sexual intercourse was performedby them. In this regard my report is ExP-11 which is in 5 pages.The A to A part on it bears my signature.”

34. P.W.11 (Dr. Pankaj Srivastava) was posted as ScientificOfficer at the DNA Unit of FSL, Sagar during the period, 24[th] June,2015 to 20[th] July, 2015 and he submitted the DNA test report whichshows that the DNA extracted from the appellant’s blood matched withDNA from the vaginal smear slide and salwar of the deceased. It hasbeen specifically been recorded that bodily fluids of the other five suspectswere not found present in the source vaginal slide or salwar of the victim.The witness was subjected to an extremely lengthy cross-examination

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Abut nothing that could distract the conclusion he has drawn in the reportreferred to above. His opinion is extracted hereunder:

“1….

1. Male D.N.A. profile was found on the source vaginal smearslide and salwar of the deceased …...

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2. The body fluids of suspect Hargovind Kaurav, suspect Nandi@ Anand and suspect Baba @ Ashok were not found present inthe source vaginal slide and salwar of the deceased …...

3. The body fluids of suspect Roopram and suspect Manoj werenot found present in the source vaginal slide and salwar of thedeceased ……...

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4. The D.N.A. profile matching with that of the suspect Baba @Ravishankar was found present in the source vaginal slide andsalwar of the deceased ……...

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D2. The opinion given by me in regard to the suspect HargovindKaurav, Nandi @ Anand Kaurav and Baba @ Ashok is ExP-15which is in 3 pages and the A to A part on it bears my signature.The opinion given by me in regard to the suspect Baba @Ravishankar, Roopram @ Ruppu Kaurav and Manoj @ HalkeYadav is ExP-16 which is in 2 pages and the A to A part on itEbears my signature.”

35. P.W.12 (Dr. Kinshuk Jaiswal), who was posted as MedicalOfficer at Government Hospital Chichli on 23[rd] May, 2015, at at9.00 a.m. conducted postmortem on the dead body of the deceased. Shehas stated that the putrefaction of the body had started and foul smellingFodour was present. She estimated time of death at 48-72 hours beforeor possibly earlier depending upon environmental conditions. She alsofound chara (fodder) inside the hair of the deceased and deposed thattwo vaginal slides of the deceased were sent for examination. What shenoticed in the postmortem examination was as follows:G“

“Abrasions present in the whole left portion of the body of thedeceased. Extending from lateral aspect of left arm to left forearm15 cm x 3.5 cm irregular in shape. Left thigh lateral 8 cm x 3 cm.Left leg (lateral) 7.5 cm x 2.5 cm irregular shape. Left buttock 15cm x 4.5 cm irregular. Neck swollen. Contusions present onanterior aspect of neck both sides. Contusions present over right H

axillary area 5 cm x 2.5 cm over left supraclavicular area (6 cm x2 cm), left arm (5 cm x 2.5 cm), left scapular area (8 cm x 2.5cm). Contusion present over right thigh medical aspect (10 cm x2.5 cm). Perineal area swollen and edematous. Pubic hair absent.Hymen ruptured. Two vaginal slides prepared and send + forbiochemical examination. Feaces passed. Contusion present overleft foot (dorsally) 3.5 cm x 1.5 cm and contusion present overright palm (palmar aspect) of size 2 cm x 1.5 cm. ….(sic.)”

36. P.W.16 (Dr. Kshipra Kaurav) was posted as Medical Officerat Government Hospital, Chichli on 8[th] July, 2015 when she was askedto take the blood sample of the appellant which she kept in a vial, sealedit and handed it over to the SHO who prepared the seizure memorandumEx. P-5. She has volunteered in her cross-examination that the bloodsamples of two more persons were also taken prior to that of the appellanton the same day and that photographs of all the persons whose bloodsamples were taken were duly attested. She further volunteered thatthe identification Form Ex. P-9 along with photographs of the appellantwere also attested by her.

37. Essentially, this is a case of circumstantial evidence which issupported by occular and medico-scientific evidence. The prosecutionhas effectively proved that deceased was ‘last seen’ with the appellantand on earlier occasions too was seen being enticed by the appellant.DNA evidence using the established STR technique has proved thatappellant committed sexual intercourse with the deceased. Deceasedhas been proven to be a minor using school records. Various injuries onher body along with signs of struggle proved that such crime wascommitted in a barbaric manner. Death has been established as beinghomicidal and caused by throttling, and has been estimated during thetime when the deceased was seen with the appellant. A slipper havebeen recovered through the appellant which has later been identified asbelonging to the deceased, giving finality to the circumstantial chain.The appellant has been unable to offer any alibi and his defence merelyrests on deflecting guilt on to the family of the deceased, which is withouta shred of evidence. Further, no effective challenge has been madeagainst any medical or DNA reports. There can thus be no second opinionagainst the guilt of the appellant and his consequential conviction.

38. The findings of kidnapping, rape, resultant death and destructionof evidence have hence been proven beyond reasonable doubt, as A

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Aevidenced by concurrent findings of the Courts below. Even this Courton 10[th] January, 2018 has confirmed the conviction of the appellant keepingin view the fact that DNA typing carries high probative value for scientificevidence, is often more reliable than ocular evidence. It goes withoutsaying that in (i) Pantangi Balarama Venkata Ganesh vs. State ofAndhra Pradesh[2] and (ii) Dharam Deo Yadav vs. State of UttarBPradesh[3], this Court has unequivocally held that DNA test, even if notinfallible, is nearly an accurate scientific evidence which can be a strongfoundation for the findings in a criminal case.

Sentencing:

C39. The core issue that we are left with to decide is the nature ofpunishment to be awarded to the appellant. The Trial Court awardeddeath sentence after drawing a balance-sheet weighing ‘mitigating’circumstances against ‘aggravating’ circumstances. It noted that lackof criminal antecedents and a large number of dependants wereoutweighed by appellant’s mature (40-50) age, heinousness of offence,Dadverse reaction of society, pre-planned manner of crime, injuries onbody of deceased and lack of regret during trial. The High Court notedthat there was bleeding due to sexual intercourse and that there was nopossibility of reform owing to the appellant’s denial of his crimes.Accordingly, it held that awarding death penalty was justified.

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40. The question as to why and in what circumstances should theextreme sentence of death be awarded has been pondered upon by thisCourt since many a decades. The Constitution Bench of this Court inBachan Singh vs. State of Punjab[4] evolved the principle of lifeimprisonment as the ‘rule’ and death penalty as an ‘exception’. It furtherFmandated consideration of the probability of reform or rehabilitation ofthe criminal. It, thus, formed the genesis of the ‘rarest of the rare’ doctrinefor awarding the sentence of death.

41. This was further developed in Machhi Singh and others vs.State of Punjab[5]where this Court held that as part of the ‘rarest ofGrare’ test, the Court should address itself as to whether; (i) there issomething uncommon about the crime which renders sentence of 2 (2009) 14 SCC 6073 (2014) 5 SCC 5094 (1980) 2 SCC 684H5 (1983) 3 SCC 470

imprisonment for life inadequate and calls for a death sentence; (ii) thecircumstances are such that there is no alternative but to impose deathsentence even after according maximum weightage to the mitigatingcircumstances which speak in favour of the offender. Further, this Courtruled that :

“(i) The extreme penalty of death need not be inflicted except ingravest cases of extreme culpability.

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

(iii) Life imprisonment is the rule and death sentence is anexception. In other words death sentence must be imposed onlywhen life imprisonment appears to be an altogether inadequatepunishment having regard to the relevant circumstances of thecrime, and provided, and only provided, the option to imposesentence of imprisonment for life cannot be conscientiouslyexercised having regard to the nature and circumstances of thecrime and all the relevant circumstances.

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

42. There have been an umpteen number of judgments wherethis Court has steadily restricted the circumstances for award of deathpenalty and has increased the burden of showing special reasons beforemandating death penalty, as mandated under Section 354(3) of the Cr.P.C.

43. This exercise of drawing a balance sheet of aggravating andmitigating circumstances whilst keeping in mind the peculiarity of factsand circumstances of each case has nevertheless been very tedious. Ithas resulted in a lack of unanimity of standard amongst different Benchesresulting in differential standards for award of capital punishment.

44. Many protagonists of abolishment of death penalty have beenpassionately urging this Court to not award death in cases of circumstantialproof claiming an inherent weakness in cases without ocular evidence.They highlight an ever-remaining possibility of reform and rehabilitation

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Aand ask this Court to be cognizant of social, economic and educationalconditions of the accused.

45. Simultaneously, however, a parallel line of thought has stronglyadvocated that death be imposed to maintain proportionality of sentencingand to further the therories of deterence effect and societal retribution.BThese people contend that sentencing should be society-centric insteadof being judge-centric and make use of a cost-benefit analysis to contendthat the miniscule possibility of putting to death an innocent man is morethan justified in the face of the alternative of endangering the life ofmany more by setting a convict free after spending 14-20 years inimprisonment. This possibility, they further state, is already wellCsafeguarded against by a ‘beyond reasonable doubt’ standard at thestage of conviction.

46. Ostensibly to tackle such a conundrum between awardingdeath or mere 14-20 years of imprisonment, in Swamy Shraddananda@ Murali Manohar Mishra Vs. State of Karnataka[6], a three-JudgeDBench of this Court evolved a hybrid special category of sentence andruled that the Court could commute the death sentence and substitue itwith life imprisonment with the direction that the convict would not bereleased from prison for the rest of his life. After acknowledging that“the truth of the matter is that the question of death penalty is not freeEfrom the subjective element and the confirmation of death sentence orits commutation by this Court depends a good deal on the personalpredilection of the Judges constituting the Bench”, this Court went on tohold as follows:

“92. The matter may be looked at from a slightly different angle.FThe issue of sentencing has two aspects. A sentence may beexcessive and unduly harsh or it may be highlydisproportionately inadequate. When an appellant comes to thisCourt carrying a death sentence awarded by the trial court andconfirmed by the High Court, this Court may find, as in the presentappeal, that the case just falls short of the rarest of the rareGcategory and may feel somewhat reluctant in endorsing the deathsentence. But at the same time, having regard to the nature of thecrime, the Court may strongly feel that a sentence of lifeimprisonment subject to remission normally works out to a term

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

93. Further, the formalisation of a special category of sentence,though for an extremely few number of cases, shall have thegreat advantage of having the death penalty on the statute bookbut to actually use it as little as possible, really in the rarest of rarecases. This would only be a reassertion of the Constitution Benchdecision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri)580 : AIR 1980 SC 898] besides being in accord with the moderntrends in penology.

94. In the light of the discussions made above we are clearly ofthe view that there is a good and strong basis for the Court tosubstitute a death sentence by life imprisonment or by a term inexcess of fourteen years and further to direct that the convictmust not be released from the prison for the rest of his life or forthe actual term as specified in the order, as the case may be.”

47. The special sentencing theory evolved in SwamyShraddananda (supra) has got the seal of approval of the ConstitutionBench of this Court in Union of India vs. Sriharan alias Muruganand others[7], laying down as follows:

“105. We, therefore, reiterate that the power derived from thePenal Code for any modified punishment within the punishmentprovided for in the Penal Code for such specified offences canonly be exercised by the High Court and in the event of furtherappeal only by the Supreme Court and not by any other court in A

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this country. To put it differently, the power to impose a modifiedpunishment providing for any specific term of incarceration or tillthe end of the convict’s life as an alternate to death penalty, canbe exercised only by the High Court and the Supreme Court andnot by any other inferior court.

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B106. Viewed in that respect, we state that the ratio laid down inSwamy Shraddananda (2) [Swamy Shraddananda (2) v. Stateof Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] thata special category of sentence; instead of death; for a termexceeding 14 years and put that category beyond application ofremission is well founded and we answer the said question in theCaffirmative. We are, therefore, not in agreement with the opinionexpressed by this Court in Sangeet v. State of Haryana [Sangeetv. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611]that the deprival of remission power of the appropriate Governmentby awarding sentences of 20 or 25 years or without any remissionas not permissible is not in consonance with the law and weDspecifically overrule the same.”

48. Regardless of the suggestive middle path this Court has, whenthe occasion demanded, confirmed death sentences in many horrenduous,barberic and superlative crimes especially which involve kidnapping, rapeand cold blooded murder of tender age children.E

49. In Mukesh and another vs. State (NCT of Delhi) and others[8],faced with an instance of gang rape and brutal murder, this Court foundthat aggravating circumstances like diabolic nature of the crime,brazenness and coldness with which such acts were committed and theinhuman extent to which the accused could go to satisfy their lust, wouldFoutweigh mitigating circumstances.

50. In Vasanta Sampat Dupare vs. State of Maharashtra[9], alittle child was raped and brutally murdered. The death penalty wasconfirmed by this Court. Thereafter, a review petition was heard in opencourt and the death penalty was reconfirmed regardless of the convictGhaving completed a bachelors preparatory programme, having kept anunblemished jail record and acquiring some other reformativequalifications during the course of trial. This Court was of the view thatthe extreme depravity and barberic manner in which the crime was 8 (2017) 6 SCC 1

9 (2017) 6 SCC 631

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committed and the fact that the victim was a helpless child of 4 yearsclearly outweighed the mitigating circumstances in that case.

51. In Khushwinder Singh vs. State of Punjab[10], this Courtaffirmed the death sentence of the accused who had killed six innocentpersons including two minors by kidnapping, drugging them with sleepingpills and then pushing them into a canal.

52. In Manoharan Vs. Inspector of Police[11], a three-Judge Bench(by majority) affirmed the death sentence of the accused who alongwith his co-accused was found guilty of gangraping a 10 years’ old minorgirl and committing her brutal murder along with her 7 years’ old brotherby throwing them into a canal and causing their death by drowning.

53. Equally, there are several other instances including the recentinstance in Rajindra Pralhadrao Wasnik v. State of Maharashtra inReview Petition(Crl.) Nos. 306-307/2013 where this Court commuteddeath sentence even in the case of rape and murder of tender age childrenlike 3-4 year olds after taking notice of the peculiar facts andcircumstances of that case as well as the factor that the convictionswere founded upon circumstancial evidence and though DNA Test washeld but its report was withheld and not produced by the prosecution forthe reasons best known to it.

54. On a detailed examination of precedents, it appears to us thatit would be totally imprudent to lay down an absolute principle of lawthat no death sentence can be awarded in a case where conviction isbased on circumstantial evidence. Such a standard would be ripe forabuse by seasoned criminals who always make sure to destroy directevidence. Further in many cases of rape and murder of children, thevictims owing to their tender age can put up no resistence. In such casesit is extremely likely that there would be no ocular evidence. It cannot,therefore, be said that in every such case nothwthstanding that theprosecution has proved the case beyond reasonable doubt, the Courtmust not award capital punishment for the mere reason that the offenderhas not been seen committing the crime by an eye-witness. Such areasoning, if applied uniformally and mechanically will have devastatingeffects on the society which is a dominant stakeholder in theadministration of our criminal justice system.

10 (2019) 4 SCC 415

11 (2019) SCConline SC 951

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A55. Further, another nascent evolution in the theory of deathsentencing can be distilled. This Court has increasingly become cognizantof ‘residual doubt’ in many recent cases which effectively create a higherstandard of proof over and above the ‘beyond reasonable doubt’ standardused at the stage of conviction, as a safeguard against routine capitalsentencing, keeping in mind the irreversibility of death.B

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56. In Rameshbhai Chandubhai Rathod vs. State of Gujarat,[12]this Court noted that reliance on merely ‘plausible’ evidences to prove acircumstantial chain and award death penalty would be “in defiance ofany reasoning which brings a case within the category of the “rarestof rare cases”.” Further, various discrepancies in other important linksCin the circumstantial chain as well as lack of any cogent reason by theHigh Court for not accepting the retraction of the confession statementof the accused was noted. Acting upon such various gaps in theprosecution evidence as well as in light of other mitigating circumstances,like the possibility that there were others involved in the crime, this Courtrefused to confirm the sentence of death despite upholding conviction.D

57. Such imposition of a higher standard of proof for purposes ofdeath sentencing over and above ‘beyond reasonable doubt’ necessaryfor criminal conviction is similar to the “residual doubt” metric adoptedby this Court in Ashok Debbarma vs. State of Tripura[13]wherein itwas noted that:E

“in our criminal justice system, for recording guilt of theaccused, it is not necessary that the prosecution should provethe case with absolute or mathematical certainty, but onlybeyond reasonable doubt. Criminal Courts, while examiningwhether any doubt is beyond reasonable doubt, may carry inFtheir mind, some “residual doubt”, even though the Courtsare convinced of the accused persons’ guilt beyond reasonabledoubt.”

58. Ashok Debbarma (supra) drew a distinction between a‘residual doubt’, which is any remaining or lingering doubt about theGdefendant’s guilt which might remain at the sentencing stage despitesatisfaction of the ‘beyond a reasonable doubt’ standard during conviction,and reasonable doubts which as defined in Krishan v. State[14] are “actual 12 (2011) 2 SCC 764

13 (2014) 4 SCC 747H14 (2003) 7 SCC 56

and substantive, and not merely imaginary, trivial or merely possible”.These ‘residual doubts’ although not relevant for conviction, would tilttowards mitigating circumstance to be taken note of whilst consideringwhether the case falls under the ‘rarest of rare’ category.

59. This theory is also recognised in other jurisdictions like theUnited States, where some state courts like the Supreme Court ofTennessey in State vs. McKinney[15] have explained that residual doubtof guilt is a valid non-statutory mitigating circumstance during thesentencing stage and have allowed for new evidence during sentencingproceedings related to defendant’s character, background history, physicalcondition etc.

60. The above cited principles have been minutely observed byus, taking into consideration the peculiar facts and circumstances of thecase in hand. At the outset, we would highlight that the High Court whileconfirming death has observed that the girl was found bleeding due toforcible sexual intercourse — which fact, however, is not supported bymedical evidence. However, such erroneous finding has no impact onconviction under Section 376A of the I.P.C. for a bare perusal of thesection shows that only the factum of death of the victim during theoffence of rape is required, and such death need not be with any guiltyintention or be a natural consequence of the act of rape only. It is wordedbroadly enough to include death by any act committed by the accusedif done contemporaneously with the crime of rape. Any otherinterpretation would defeat the object of ensuring safety of women andwould perpetuate the earlier loophole of the rapists claiming lack ofintention to cause death to seek a reduced charge under Section 304 ofI.P.C. as noted in the Report of the Committee on Amendments toCriminal Law, headed by Justice J.S. Verma, former Chief Justice ofIndia:

“22. While we believe that enhanced penalties in a substantialnumber of sexual assault cases can be adjudged on the basis ofthe law laid down in the aforesaid cases, certain situations warranta specific treatment. We believe that where the offence of sexualassault, particularly ‘gang rapes’, is accompanied by such brutalityand violence that it leads to death or a Persistent Vegetative State(or ‘PVS’ in medical terminology), punishment must be severe –with the minimum punishment being life imprisonment. While we A

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Aappreciate the argument that where such offences result in death,the case may also be tried under Section 302 of the IPC as a‘rarest of the rare’ case, we must acknowledge that many suchcases may actually fall within the ambit of Section 304 (Part II)since the ‘intention to kill’ may often not be established. In theBcase of violence resulting in Persistent Vegetative State isconcerned, we are reminded of the moving story of ArunaShanbagh, the young nurse who was brutally raped and lived therest of her life (i.e. almost 36 years) in a Persistent VegetativeState.

C23. In our opinion, such situations must be treated differentlybecause the concerted effort to rape and to inflict violence maydisclose an intention deserving an enhanced punishment. We havetherefore recommended that a specific provision, namely, Section376 (3) should be inserted in the Indian Penal Code to deal withthe offence of “rape followed by death or resulting in a PersistentDVegetative State”.”

61. In the present case, there are some residual doubts in ourmind. A crucial witness for constructing the last seen theory, P.W.5 ispartly inconsistent in cross-examination and quickly jumps from onestatement to the other. Two other witnesses, P.W.6 and P.W.7 had seenEthe appellant feeding biscuits to the deceased one year before the incidentand their long delay in reporting the same fails to inspire confidence.The mother of the deceased has deposed that the wife and daughter ofthe appellant came to her house and demanded the return of the moneywhich she had borrowed from them but failed to mention that sheFsuspected the appellant of commiting the crime initially. Ligature markson the neck evidencing throttling were noted by P.W.20 and P.W.12 andin the postmortem report, but find no mention in the panchnama preparedby the police. Viscera samples sent for chemical testing were spoilt andhence remained unexamined. Although nails’ scrappings of the accusedwere collected, no report has been produced to show that DNA of theGdeceased was present. Another initial suspect, Baba alias Ashok Kauravabsconded during investigation, hence, gave rise to the possibility ofinvolvment of more than one person. All these factors of course have noimpact in formation of the chain of evidence and are wholly insufficientto create reasonable doubt to earn acquittal.H

62. We are cognizant of the fact that use of such ‘residual doubt’as a mitigating factor would effectively raise the standard of proof forimposing the death sentence, the benefit of which would be availed ofnot by the innocent only. However, it would be a misconception to makea cost-benefit comparison between cost to society owing to acquittal ofone guilty versus loss of life of a perceived innocent. This is because thealternative to death does not necessarily imply setting the convict free.

63. As noted by the United States Supreme Court in Herrera v.Collins,[16] “it is an unalterable fact that our judicial system, like thehuman beings who administer it, is fallible.” However, death beingirrevocable, there lies a greater degree of responsibility on the Court foran indepth scruitiny of the entire material on record. Still further,qualitatively, the penalty imposed by awarding death is much differentthan in incarceration, both for the convict and for the state. Hence, acorresponding distinction in requisite standards of proof by taking noteof ‘residual doubt’ during sentencing would not be unwarranted.

64. We are thus of the considered view that the present case fallsshort of the ‘rarest of rare’ cases where the death sentence alonedeserves to be awarded to the appellant. It appears to us in the light ofall the cumulative circumstances that the cause of justice will beeffectively served by invoking the concept of special sentencing theoryas evolved by this Court in Swamy Shraddananda (supra) and approvedin Sriharan case (supra).

65. For the reasons aforesaid, the appeal is allowed in part to theextent that the death penalty as awarded by the courts below is set asideand is substituted with the imprisonment for life with a direction that noremission shall be granted to the appellant and he shall remain in prisonfor the rest of his life.

Devika Gujral

Appeals partly allowed.

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