Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1905 of 2011  

Amit                                                 …… Appellant

Versus

State of Uttar Pradesh                               …… Respondent

J U D G M E N T

A. K. PATNAIK, J.

This  is  an  appeal  by  way  of  special  leave  under  

Article  136  of  the  Constitution  of  India  against  the  

judgment dated 29.07.2009 of the Allahabad High Court  

in  Criminal  Appeal  No.7361  of  2007  and  in  Reference  

No.26 of 2007 confirming the conviction of the appellant  

under Sections 364, 376, 377, 302 and 201 of the Indian  

Penal  Code  (for  short  ‘IPC’)  as  well  as  the  sentences  of  

imprisonments  and  death  awarded  by  the  learned  

Additional Sessions Judge.

2. The  facts  very  briefly  are  that  on  19.03.2005,  one  

Radhey Shyam lodged a First Information Report (for  

short ‘FIR’) at the Daurala Police Station in District  

Meerut  at 21:15 hours alleging that while his mother  

Manno and wife Shakuntala were present at house,  

his neighbour Amit, the appellant herein, took away  

his daughter Monika, aged 3 years, from his house  

on the pretext that he would give biscuits to her but  

neither his daughter nor the appellant returned and  

when at about 5.00 p.m. the appellant came back to  

his  house,  he  inquired  about  the  whereabouts  of  

Monika,  but  the  appellant  did  not  reply  and  ran  

away.   Crime No.90 of  2005 for  the  offence  under  

Section 364, IPC, was registered.  The appellant was  

apprehended  on  20.03.2005  near  the  Pawli  Khas  

Railway Station, Modipuram, P. S. Daurala in District  

Meerut and his shirt, which bore blood-stains on its  

right  arm, was taken off  from his person.  On the  

statement of the appellant, the dead body of Monika  

kept in a plastic bag was recovered from the wheat  

field  in  the  out  skirts  of  village  Palhara  in  the  

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presence of Radhey Shyam and Iqbal Singh.  A pair of  

green  colour  chappals,  which  were  blood-stained,  

were also recovered from the corner of a room of the  

house  of  the  appellant  on  the  statement  of  the  

appellant in presence of  Radhey Shayam and Iqbal  

Singh.  The shirt of the appellant and the  chappals,  

frock, underwear of Monika and a back thread were  

sent  to  the  Forensic  Science  Laboratory  Uttar  

Pradesh, Agra, which confirmed presence of human  

blood and human sperms on some of these materials.  

After investigation, chargesheet was filed against the  

appellant  under  Sections  364,  376,  377,  302  and  

201,  IPC,  and charges  were  accordingly  framed by  

the learned Additional Sessions Judge, Court No.12,  

Meerut,  and  Sessions  Trial  No.449  of  2005  was  

conducted.

3.  At the trial, Radhey Shyam was examined as PW-1.  

His wife and mother were examined as PWs-2 and 3.  

Iqbal  Singh,  the  witness  to  the  seizures  made  

pursuant  to  the  statements  of  the  appellant,  was  

examined  as  PW-4.   Dr.  Vikrama  Singh,  Senior  

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Pathologist, who carried out the post-mortem on the  

body  of  Monika,  was  examined  as  PW-5  and  the  

Investigating Officer was examined as PW-6.  In his  

statement  under  Section  313,  Criminal  Procedure  

Code (for short ‘Cr.P.C.’), the appellant denied having  

committed the offences but no evidence was adduced  

by him in his defence.  The trial court considered the  

evidence,  heard  the  arguments  and  found  the  

appellant guilty of the charges under Sections 364,  

376,  377,  302  and  201,  IPC.   After  hearing  the  

appellant on the question of sentence, the trial court  

imposed the punishment of life imprisonment and a  

fine of Rs.5,000/- for the offence under Section 364,  

IPC,  and  a  further  sentence  of  six  months  if  the  

appellant failed to pay the fine.  For the offence under  

Section  376,  IPC,  the  trial  court  also  imposed  the  

punishment  of  life  imprisonment  and  a  fine  of  

Rs.5,000/- and on failure to pay the fine, a further  

sentence  of  six  months.   For  the  offence  under  

Section  377,  IPC,  the  trial  court  also  imposed  the  

punishment  of  life  imprisonment  and  a  fine  of  

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Rs.5,000/-  and  on  failure  to  pay  the  fine,  an  

additional  sentence  of  six  months’  imprisonment.  

For  the  offence  under  Section  201,  IPC,  the  trial  

court imposed a sentence of five years imprisonment  

and a fine of  Rs.2,000/- and on failure to pay the  

fine,  an  additional  sentence  of  two  months’  

imprisonment.  The trial court took the view that this  

is  one  of  those  rarest  of  rare  cases  in  which  the  

appellant  was not  eligible  for  any sympathy of  the  

Court and imposed the sentence of death and a fine  

of Rs.5,000/- on the appellant for the offence under  

Section  302,  IPC.   The  High  Court,  as  we  have  

already noted, has not only confirmed the convictions  

under Sections 364, 376, 377, 302 and 201, IPC, but  

also the sentences awarded by the trial court.

4. At the hearing of the appeal, learned counsel for the  

appellant submitted that PW-3 was the only person  

who  was  witness  to  the  appellant  taking  away  

Monika from the house of  PW-1, but PW-3 was an  

aged  woman  and  she  has  admitted  in  her  cross-

examination that she cannot see with her right eye.  

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He submitted that  PW-3 was an interested witness  

inasmuch  as  she  was  the  grandmother  of  Monika  

and her evidence should not be relied on.  He argued  

that  no  Test  Identification  Parade  was  conducted  

during  investigation  for  the  witness  to  identify  the  

appellant.  He further submitted that no independent  

witnesses were taken by the Police for recovery of the  

articles and instead the father of Monika (PW-1) was  

made a witness to the recovery of various articles and  

there is  evidence to show previous enmity between  

PW-1 and the appellant and PW-1 has planted this  

case against the appellant.   He also argued that the  

weapon by  which Monika  was  killed  has  not  been  

recovered  and  hence  there  is  no  proof  that  the  

appellant  has committed the offence under  Section  

302 IPC.  

5. Learned  counsel  for  the  State,  on  the  other  hand,  

took us through the evidence of PWs-1, 2, 3 and 4 as  

well  as  the  three  memoranda of  recovery  made  on  

20.03.2005 pursuant to the confessional statements  

of the appellant admissible under Section 27 of the  

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Evidence  Act  as  well  as  the  report  of  the  Forensic  

Science Laboratory to show that the trial court rightly  

convicted the  appellant  and the  High Court  rightly  

confirmed the  conviction  under  Sections  364,  376,  

377, 302 and 201, IPC.

6. We may first consider the contention of the learned  

counsel for the appellant that the evidence of PW-3  

who saw the appellant taking away Monika from her  

lap should not be relied on.  PW-3 is no doubt the  

grandmother of Monika but she is not an interested  

witness.  As has been held by this Court in State of   

Rajasthan v.  Smt.  Kalki  and another [(1981) 2 SCC  

752],  Myladimmal  Surendran and others v.  State  of   

Kerala [(2010) 11 SCC 129] and  Takdir  Samsuddin  

Sheikh vs.  State  of  Gujarat  and  another [(2011)  10  

SCC  158],  an  interested  witness  must  have  some  

direct  interest  in  having  the  accused  somehow  

convicted  for  some  extraneous  reason  and  a  near  

relative of the victim is not necessarily an interested  

witness.  There is no evidence to show that PW-3 was  

somehow  interested  in  having  the  appellant  

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convicted.   PW-3, however,  is  an aged woman and  

she has admitted in her cross-examination that she  

cannot see with her right eye but she has also stated  

in her cross-examination that she can see with her  

left  eye  and  the  sight  of  her  left  eye  has  not  

diminished on account of old age and she can fully  

see everything and can also pass a thread through  

the  eye  of  the  needle  and  that  she  does  not  use  

spectacles and can see without spectacles.   Hence,  

the evidence of PW-3 that the appellant came to her  

house  and took away Monika from her  lap on the  

pretext of giving biscuits to her cannot be disbelieved.  

7. We may now deal with the contention of the learned  

counsel for the appellant that no Test Identification  

Parade  was  conducted  during  investigation  for  the  

witness to identify the appellant as the person who  

had  taken  away  the  child  from  her  lap.   Test  

Identification  Parade  would  have  been necessary  if  

the  appellant  was  unknown to    PW-3 but  as  the  

appellant was the neighbour of PW-3 and known to  

her no Test Identification Parade was necessary for  

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PW-3 to identify the appellant.  In fact when PW-1  

returned  home,  he  was  told  by  PW-3  that  the  

appellant had taken away Monika on the pretext of  

giving her biscuits because PW-3 knew the appellant.  

Moreover, on such information received from PW-3,  

PW-1 lodged  the  FIR  naming  the  appellant  as  the  

person who had taken away Monika on the pretext of  

giving her biscuits.  Hence, the argument of learned  

counsel for the appellant that no Test Identification  

Parade  was  conducted  for  PW-3  to  identify  the  

appellant is misconceived in the facts of this case.

8. Regarding the contention of learned counsel for the  

appellant that no independent witnesses were taken  

by the police for recovery of the articles and PW-1,  

who was the father of Monika and who was inimical  

to the appellant was made a witness to the recovery  

of  the  articles,  we  find  from  the  memo  Ex.Ka-10  

recording the recovery of blood- stained shirt of the  

appellant that the recovery was made in presence of  

two Constables, namely, Harender Singh and Jasbir  

Singh, and PW-1 was not a witness to this recovery.  

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Thereafter, the appellant made a confession that he  

had concealed the dead body of Monika in the wheat  

field and pursuant to this confession the dead body  

of  Monika  kept  in  a  plastic  bag  was  recovered  in  

presence  of  not  only  PW-1  but  also  PW-4  (Iqbal  

Singh).  The recovery memo (Ext.Ka-2) with regard to  

the  dead  body  of  Monika  and  the  recovery  memo  

Ext.Ka-3  with  regard  to  plastic  bag  bear  the  

signatures  of  the  two  witnesses  PW-1  and  PW-4.  

Pursuant to the statement made by the appellant, the  

chappals which Monika was wearing at the time of  

murder  were  also  recovered from the  house  of  the  

appellant  in  presence  of  PW-1  and  PW-4  and  the  

recovery memo with regard to the chappals (Ext.Ka-5)  

also bears the signatures of PW-1 and PW-4.  Thus, it  

is  not  correct,  as  has  been  submitted  by  learned  

counsel  for  the  appellant,  that  only  PW-1  was  a  

witness to the recovery of  various articles and that  

this  was  a  case  which  PW-1  had  planted  on  the  

appellant on account of previous enmity.   PW-4 was  

also a witness to the recovery of the articles which  

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implicate the appellant in the offence and it is not the  

case  of  the  appellant  that  PW-4  was  in  any  way  

inimical to the appellant.

9. Coming  to  the  argument  of  the  counsel  for  the  

appellant  that  the  weapon with which Monika was  

killed  has  not  been recovered,  it  appears  from the  

evidence of the senior pathologist Dr. Vikrama Singh,  

PW-5, who carried out the post mortem report on the  

body of  Monika that  there were swelling marks on  

her head and left side of the face which established  

that she has been hit on her head and her left side of  

the face.  PW-5 has also stated in his evidence that  

there was a ligature mark all around her neck which  

indicates that she was also strangulated.  PW-5 has  

further deposed that there was a lacerated wound on  

the anterior part of arms anus and her vagina was  

inflamed and congested which prove that unnatural  

offence and rape was committed on her.  PW-5 has  

opined that all the injuries together are the cause of  

the  death  of  Monika.   The  report  of  the  Forensic  

Science Laboratory (Ex.A-23) confirms human blood  

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and  human  sperms  on  the  underwear  of  Monika.  

Thus, even if the object with which Monika was hit  

has not been identified and recovered, the evidence of  

PW-3, the recovery of various articles made pursuant  

to  the  confession  of  the  appellant,  the  evidence  of  

PW-5  and  the  report  of  the  Forensic  Science  

Laboratory  Ex.A-23  prove  beyond  all  reasonable  

doubt that it is the appellant alone who after having  

kidnapped Monika  committed unnatural  offence  as  

well  as  rape  on  her  and  killed  her  and  thereafter  

caused disappearance of the evidence of the offences.  

The High Court has, therefore, rightly confirmed the  

conviction of the appellant under Sections 364, 376,  

377, 302 and 201 IPC.

10.   We may now consider the contentions of the learned  

counsel  for  the  parties  on  the  sentence  for  the  offence  

under Section 302, IPC.  Learned counsel for the appellant  

submitted  that  the  appellant  was  a  young  person  aged  

about 28 years when he committed the offences and may  

reform in future.  He cited the judgments of this Court in  

Sebastian  Alias  Chevithiyan  v.  State  of  Kerala [(2010)  1  

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SCC 58] and Rameshbhai Chandubhai Rathod (2) v. State   

of  Gujarat [(2011)  2  SCC  764]  in  which  this  Court  in  

similar cases of murder of a child after rape by a young  

person has held that imprisonment for life and not death  

sentence  is  the  appropriate  punishment.   He submitted  

that the appellant, therefore, should not be awarded death  

sentence.

11. Learned  counsel  for  the  State,  on  the  other  hand,  

submitted that  the trial  court  has held that  kidnapping  

and raping a three years old daughter of a neighbour by  

another neighbour on the pretext of offering biscuit is a  

heinous and inhuman act and comes under the category  

of rarest of rare cases as has been held by this Court in  

several decisions.  He submitted that the view taken by the  

trial court is consistent with the decisions of this Court in  

State  of  U.P.  v. Satish [(2005) 3 SCC 114] and  Bantu  v.  

State of Uttar Pradesh [(2008) 11 SCC 113].  According to  

him,  death  sentence  is  the  appropriate  punishment  for  

rape of a child followed by murder.

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12.   We  find  that  the  trial  court  has  relied  on  the  

decision of a two Judge Bench of this Court in State of U.P.  

v. Satish (supra) in which the offence of rape of a child  

followed by brutal murder of a child has been held to fall  

in the rarest of rare category for which death sentence is  

appropriate.  In Bantu v. State of Uttar Pradesh (supra), a  

two-Judge Bench has similarly awarded death sentence to  

the accused for having committed murder after rape of a  

young girl of 5 years.  In the subsequent decision in the  

case  of  Sebastian  Alias  Chevithiyan  v.  State  of  Kerala  

(supra),  however,  a  two-Judge Bench of  this  Court  in a  

similar case of a rape followed by murder of a young child  

by a young man of 24 years has taken a different view and  

has modified the sentence of death to one imprisonment  

for the rest of his life.  In Rameshbhai Chandubhai Rathod   

(2) v. State of Gujarat (supra), which was also a case of a  

rape followed by murder of a girl child by a young man,  

while  Dr.  Arijit  Pasayat,  J.  took  the  view  that  death  

sentence is the appropriate punishment, A.K. Ganguly, J.  

was of the view that as the accused was young in age and  

may be rehabilitated in future, death sentence is not the  

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appropriate punishment.  The difference between the two  

Judges was referred to a three-Judge Bench of this Court  

and the three-Judge Bench held that in such cases of rape  

followed  by  murder  by  a  young  man,  instead  of  death  

sentence a life  imprisonment should be awarded with a  

direction that life sentence imposed will extend to the full  

life  of  the  appellant  but  subject  to  any  remission  or  

commutation at the instance of the Government for good  

and sufficient reasons.  In the present case also, we find  

that when the appellant committed the offence he was a  

young  person  aged  about  28  years  only.   There  is  no  

evidence to show that he had committed the offences of  

kidnapping, rape or murder on any earlier occasion.  There  

is nothing on evidence to suggest that he is likely to repeat  

similar  crimes  in  future.   On  the  other  hand,  given  a  

chance  he  may  reform  over  a  period  of  years.   Hence,  

following  the  judgment  of  the  three-Judge  Bench  in  

Rameshbhai  Chandubhai  Rathod  (2)  v.  State  of  Gujarat  

(supra),  we  convert  the  death  sentence  awarded  to  the  

appellant to imprisonment for life and direct that the life  

sentence of the appellant will extend to his full life subject  

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to any remission or commutation at the instance of  the  

Government for good and sufficient reasons.

13.  While  therefore  sustaining  the  conviction  of  the  

appellant for the different offences as well as the sentences  

of  imprisonment  awarded  by  the  trial  court  for  the  

offences,  we  allow  the  appeal  in  part  and  convert  the  

sentence  of  death  to  life  imprisonment  for  the  offence  

under  Section  302  IPC  and  further  direct  that  the  life  

imprisonment shall extend to the full life of the appellant  

but  subject  to  any  remission  or  commutation  at  the  

instance  of  the  Government  for  good  and  sufficient  

reasons.  The appeal stands disposed of.

.……………………….J.                                                            (A. K. Patnaik)

………………………..J.                                                            (Swatanter  Kumar) New Delhi, February 23, 2012.    

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