REPORTABLE IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

REVIEW PETITION (CRL.) NOS. 446-447 OF 2019

IN

CRIMINAL APPEAL NOS. 1174-1175 OF 2019

Manoharan ..... PETITIONER(S)

VERSUS

State by Inspector of Police, Variety Hall Police Station, Coimbatore

.....RESPONDENT(S)

JUDGMENT

SURYA KANT, J.

These  review  petitions  are  directed  against  the  judgment  dated

01.08.2019 passed in Manoharan v. State by Inspector of Police1, wherein

this three-Judge Bench had affirmed conviction of the accused Manoharan for

offences punishable under Sections 302,  376(2)(f)  and (g)  and 201 of  the

Indian Penal Code (in short “IPC”) and by majority upheld the death sentence

confirmed by the High Court.  

FACTUAL MATRIX

2. Brief facts of the present case are as follows:

1 (2019) 7 SCC 716.

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‘X’, a ten-year-old girl and ‘Y’, her 7-year-old brother were enrolled in Classes

V and II respectively in a private school at Coimbatore and would commute

around 7:45 a.m. in a pickup vehicle owned by one Kartikeyan (PW-2). On

29.10.2010 the children left as usual with their school bags and lunch boxes

and  stood  about  two-hundred  feet  away  from  their  home,  in  front  of  the

Vinayakar Temple. Around 8:00 a.m., PW-2 came to the designated pick-up

spot but did not find the children there.  He contacted the children’s father,

Ranjith Kumar Jain (PW-5), over mobile to enquire about their absence. Being

in Hyderabad, PW-5 was unable to provide an immediate reply to the query of

PW-2 and hence called his wife, the children’s mother - Sangeetha (PW-8),

who informed him that both X and Y had already left home. Since the father of

the children (PW-5) was already on his way back to Coimbatore, he entrusted

his  wife  to  look  out  for  the  children  and  co-ordinate  with  the  van  driver.

Sangeetha informed Karthikeyan that the children had already left the house,

whereafter she along with her relatives Vijay Kumar (PW-1) and Sanjai (PW-6)

started searching for the children.   

3. Kamala Bai (PW-9), the paternal grandmother of the children had gone

to a Jain Temple around 8:00 a.m. in the morning.  Upon returning home at

10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed her that the

children had been picked up by a former van driver and it was conjectured that

the children must be in school. Vijay Kumar (PW-1) then went to the school

and found that the children had however not reached. After a frantic but futile

search, PW-1 lodged a police complaint (Ex. P1) with Vasuki (Sub-Inspector of

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Police, PW-42) at around 11AM under Section 363 of the Indian Penal Code

(in short “IPC”).  

4. The  Investigating  Officer  (“IO”,  PW-47),  thereafter,  took  over

investigation and recorded statements of the informant (PW-1), the school’s

principal - Anthony Raj (PW-10), as well as of the grandmother (PW-9) and the

just returned father of the children (PW-5). First trace of the missing children

was received at 6PM when Anthony Raj (PW-10) informed the IO (PW-47) that

one Chinnasamy (PW-22)  had  called  to  inform that  two school  bags  with

identity cards bearing names of X and Y were found floating in and later fished

out  from the Parambikulam-Axhiyar  Project  (“PAP”)  Canal.   A second lead

came to  the Police from Karthikeyan (PW-2) who received a call  from his

erstwhile  employee  –  Anbu  @ Gandhiraj  (PW-7)  who  conveyed  that  one

Mohanakrishnan had borrowed a Maruti  Omni  Van from him that  morning.

This aroused Karthikeyan’s suspicion since Mohanakrishnan was his former

employee whose services were terminated after it had been discovered that

he  was  borrowing  money  from  the  parents  whose  children  were  being

transported to school by PW-2’s agency. The IO (PW-47) accordingly advised

both Anbu (PW-7)  and Karthikeyan (PW-2)  to  immediately  alert  the  police

whenever Mohanakrishnan came to return the Omni Van. At around 9:45PM,

Anbu alerted the police that Mohanakrishnan had come to return the Van and

he had also confessed to the kidnapping, rape and murder of the two missing

children along with his friend Manoharan. Pursuant to the information received

by Anbu, Mohanakrishnan was arrested and a confessional  statement  was

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recorded  in  the  presence  of  Anbu  (PW-7)  and  one  Santosh  Kumar  (not

examined  as  a  witness).  The  Maruti  Omni  Van  along  with  one  Nokia

Cellphone and the driving license of Mohanakrishnan were also seized. The

IO consequently sent a report (Ex. P-30) for alteration of charge from under

Section 363, IPC to Sections 364(A), 376, 302 read with Section 201, IPC

which was received by the Magistrate at 11:45PM.  

5. Having observed certain saliva and yellow-coloured stains on the seized

van, the IO requisitioned forensic assistance of Sarvanan (PW-43),  Deputy

Director of Mobile Unit of Tamil Nadu Forensic Sciences Department. In the

presence  Sarvanan  (PW-43),  Anbu  (PW-7)  and  one  Santosh  Kumar

(unexamined), the van was thoroughly searched wherein a lady’s underwear

bearing  the  inscription  “SBT  Kidswear  75  c.m.”  with  hair  strands  was

recovered. Sarvanan (PW-43) further collected the betel nut saliva stains on

the left door of the van with a cotton swab for chemical examination, as well

as dried yellow-colour stains found on the seat and floormat, and the clothes

(namely pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar

Exs. P-5 & P-6). Mohanakrishnan subsequently led a police team to the place

where he claimed to have raped X as well as to Deepalapatti, the place from

where the children had allegedly been pushed into the running waters of the

PAP canal.   

6. The girl  child’s  body was found the subsequent  morning in the PAP

canal by villagers near Palladam Taluk at 9:30AM, and the boy’s body was

later recovered from the canal around 12 kms from Deepalapatti. Postmortem

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was conducted by Dr. Jayasingh (PW-46) at the Coimbatore Medical College

and Hospital, wherein the following injuries were recorded on X’s body:

“The  body  was  first  seen  by  the  undersigned  at  02.15  pm  on 30.10.10.  Its  condition then was rigor mortis present all  over the body.   Post  mortem  commenced  at  02.15  pm  on  30.10.10. Appearances found at the postmortem:-

Moderately  nourished body of  a  female  aged  10  yrs.  Finger  and toenails bluish in colour.  The body wearing blue colour “T” shirt with white colour sticker named as “Suguna Rips” noted left side, black colour track suit with white line order, white colour socks and white colour shoes and rose colour shimmis. White colour frothy secretions noted over both nostrils and mout. Water suddening noted over both palms and soles.”

7. The following ante mortem injuries noted over the body:

“1. Liner vertical scratch marks 4 in numbers in varying size noted over lateral aspect right elbow joint.

2. Transverse scratch abrasions 3 in number in varying size noted over lateral aspect of left upper forearm.

3. A scratch mark 3 in number noted over lower part of left arm.

4. Contusion  2x1  cm  x  0.5  depth  noted  over  in  the  posterior fourchettes and lateral wall of vagina. Hymen intact.

5. On examination of anus: - Anus found roomy measuring 3 cm in diameter and mucosal tear 1x0.5 cm x mucosal deep noted over left  lateral  aspect  of  the  anus  at  the  level  of  muco-cutaneous junction.

On dissection of Thorax and Abdomen: Contusion 4 x 2 cm noted over anterior aspect of lower end of uterus.”

8. Similarly,  in  Y’s  postmortem examination,  the  following  ante  mortem

injuries were noted:

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“1. Bluish contusion 3 x 2 cm noted on middle of left side neck, 3 cm left to midline.

2. Bluish  contusion  3  x  2  cm noted over  outer  aspect  of  right forearm.

3. Bluish contusion noted over right side third intercostal space.

4. On dissection of scalp, skull and dura: sub scalpel contusion 20 x 10 cm noted over bi frontal region and bi parietal region. Diffuse sub dural and sub arachnoid haemorrhages noted on both cerebral hemispheres.

5. On bloodless dissection of neck: contusion 4 x 3 cm noted on left side middle of neck. Hyoid bone found intact.”

9. The present review-petitioner, Manoharan (hereinafter “petitioner”) who

was stated to have perpetrated the crime along with Mohanakrishnan, was

arrested on 31.10.2010 at 7AM, as recorded in Ex. D-4. Manoharan made a

disclosure statement to the police (Ex. P-21) on the basis of which the IO

(PW-47)  recovered  lunch  box  of  Y  from  his  house.  Further,  after  being

produced  before  the  Magistrate  the  same  day,  the  petitioner  was  sent  to

judicial custody.  

10. A  Test  Identification  Parade  was  conducted  on  request  of  the  IO

whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver of the

van  in  which  the  children  had  been  kidnapped.  Subsequently,  both  the

petitioner  and  Mohanakrishnan  were  medically  examined  on  04.11.2010

whereby  samples  of  their  blood  and  saliva  were  sent  to  the  Tamil  Nadu

Forensic Science Laboratory for DNA Analysis. A potency test of the petitioner

was conducted by Dr. J.R. Singh (PW-46), who in his medical report (Ex. P-

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56) found him potent and further noticed signs of  injury around his private

parts.

11. During recovery proceedings under Section 27 of the Indian Evidence

Act  (in  short  “IEA”),  whilst  in  police  custody,  Mohanakrishnan  shot  and

wounded two police officers and was consequently shot dead by the Police on

09.11.2010.  Thus,  the  trial  against  Mohanakrishnan  was  abated  and  the

petitioner alone was left to be tried as an accused.  

12. Succinctly, the prosecution’s version of events is that Mohanakrishnan

using a borrowed school van, picked up two children (X and Y) who were

waiting to go to school  at about 7:50 a.m. He further picked up his friend,

Manoharan  from his  house  at  9:30  a.m.  and  subsequently,  they  took  the

children  to  a  remote  location  where  after  the  girl  child  was  raped  and

sodomised. Subsequently, Manoharan and Mohanakrishnan purchased cow

dung powder  (a  poisonous  substance)  which  was  mixed in  milk  and then

administered to the children to end their life. However, both the children spat

out the substance and only ingested a small portion. Since poisoning did not

work,  Mohanakrishnan  and  the  petitioner  threw  both  the  children  into  the

turbulent waters of a nearby Canal, hence drowning them.

CASE HISTORY

13. Over  the  course  of  the  trial,  the  prosecution  examined  forty-nine

witnesses in all including persons who witnessed abduction, purchase of milk

and  cow  dung  powder  and  those  having  seen  children  in  the  custody  of

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accused  persons  at  various  places.  Further,  various  medical  and  forensic

evidence were produced, proving drowning and rape as well as injuries on

Petitioner’s body. A ‘last seen theory’ was built by the prosecution, in addition

to use of a confessional statement made by the petitioner under Section 164,

CrPC. The Trial Court ultimately held the Petitioner guilty under Section 120-

B, 364-A, 376, 302 r/w 34 and 201 IPC. Under Section 376, the Petitioner was

awarded life sentence and for offence under Section 302 IPC he was given

death sentence.  

14. The Madras High Court set aside conviction of Petitioner under Sec.

120-B and 364A IPC but confirmed the sentences under Sec. 376, 302 r/w 34

and 201 IPC. After considering aggravating and mitigating circumstances, the

High Court confirmed death sentence awarded by the Trial Court.  

15. Thereafter the Petitioner filed a Special Leave Petition under Article 136

whereby this Court dismissed his appeal and confirmed the death sentence by

majority,  observing that  the case fell  in  the category of  the ‘rarest  of  rare’

cases.  After  considering  all  evidence  on  record  and  contentions  of  the

counsels, the majority opinion of this Court read as follows:

“In the circumstances, we have no doubt that the trial court and High Court  have  correctly  applied  and  balanced  aggravating circumstances with mitigating circumstances to find that  the crime committed was cold blooded and involves the rape of a minor girl and murder of two children in the most heinous fashion possible. No remorse has been shown by the Petitioner at all and given the nature of the crime as stated in paragraph 84 of the High Court’s judgment it is  unlikely that  the Petitioner,  if  set free, would not be capable of

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committing such a crime yet again. The fact that the Petitioner made a confessional statement would not, on the facts of this case, mean that he showed remorse for committing such a heinous crime. He did not stand by this confessional statement, but falsely retracted only those parts of the statement which implicated him of both the rape of the  young  girl  and  the  murder  of  both  her  and  her  little  brother. Consequently,  we  confirm  the  death  sentence  and  dismiss  the appeals.”

16. Khanna  J.,  in  his  minority  opinion  also  upheld  conviction  under  the

various  offences  concerned,  but  dissented  on  the  quantum  of  sentence,

holding as follows:

“I would, therefore, uphold and maintain conviction of the appellant under  Sections  302,  376(2)(f)  and  (g)  and  201  IPC  and  the sentences awarded under Sections 376(2)(f) and (g) and 201 IPC. To  this  extent  the  appeal  is  dismissed.  In  view  of  the  aforesaid discussion  and  on  balancing  aggravating  and  mitigating circumstances, in my opinion, the present case does not fall under the category of “rarest of the rare” case i.e. there is no alternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life  i.e.  till  his natural  death,  without remission/commutation under Sections 432 and 433 CrPC. To this extent I would allow the appeal.”

17. The  Petitioner  then  filed  the  present  petition  for  review  of  the  said

judgement  and  order  dated  01.08.2019,  which  was  heard  at  considerable

length  in  open  Court  following  the  parameters  evolved  in  Mohd.  Arif  @

Ashfaq  v.  Registrar,  Supreme  Court  of  India2,  wherein  a  Constitutional

Bench of this Court held that in cases of death penalty, since the punishment

is irreversible and Article 21 of the convict is violated, it is necessary to provide

at least one opportunity for oral arguments on the question of sentence.  

2 (2014) 9 SCC 737.

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SCOPE OF REVIEW

18. At the outset, it may be clarified that the scope of Review even in death

penalty cases has been narrowed down in Vikram Singh v. State of Punjab3,

laying down that review can only be on a glaring error apparent on the face of

the judgement  or  order.  A mere  change or  addition  of  grounds cannot  be

allowed at the stage of review. This Court thus held as follows:

“23. In view of the above, it is clear that scope, ambit and parameters of  review  jurisdiction  are  well  defined.  Normally  in  a  criminal proceeding, review applications cannot be entertained except on the ground  of  error  apparent  on  the  face  of  the  record.  Further,  the power  given  to  this  Court  under  Article  137  is  wider  and  in  an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that  there  may  be  another  view  possible  on  the  conviction  or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record  leading  to  miscarriage  of  justice  to  exercise  the  review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice.”

19. The above cited  decision was reiterated in Mukesh v. State of (NCT

of Delhi)4 where also similar restrictive principles were applied and re-affirmed

while considering the scope of review in death penalty cases. Reliance was

placed  on  the  dictum  in  Kamlesh  Verma  v.  Mayawati5,  prescribing  that

3 (2017) 8 SCC 518.

4 (2018) 8 SCC 149.

5 (2013) 8 SCC 320.

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Courts  should  refrain  from re-appreciating the  entirety  of  evidence only  to

arrive at a different possible conclusion, besides illustrating an inexhaustible

list  of  instances where review shall  not  be maintainable.  The relevant  part

reads as follows:

“20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the  face  of  the  order,  undermines  its  soundness  or  results  in miscarriage of justice.

(v)  A review  is  by  no  means  an  appeal  in  disguise  whereby  an erroneous decision is reheard and corrected but lies only for patent error.

(vi)  The mere possibility  of  two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

20. It is, therefore, to be kept in mind  that the scope of a Review is more

constrained than that of an appeal. A party cannot be allowed to reurge the

case on merits to effectively seek re-appreciation of evidence when the matter

has already been decided earlier, even if on different grounds. Interference in

the earlier judgement assailed in a Review is permissible only on the basis of

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an  error  apparent  on  the  face  of  record  or  discovery  of  important  new

evidence which has a direct bearing on the ultimate outcome of the case and

if not well appreciated, would cause manifest injustice.  

21. Learned Senior  Counsel  for  the  petitioner,  Mr.  Siddharth  Luthra  has

made a deft challenge to our judgment, through a multifaceted attack on both

merits and procedure of the case. He forcefully urged for setting aside the

conviction and in the alternate,  requested commutation of  the sentence of

death.

VOLUNTARINESS OF CONFESSION & EFFECT OF RETRACTION

22. The arguments for the Petitioner begun with challenge to reliance by

this Court on confessional statement of the accused. Mr. Luthra strenuously

contended  that  strict  compliance  with  the  safeguards  for  recording  a

confessional  statement as mandated under Section 164 are mandatory,  as

ruled  in  Shivappa  v.  State  of  Karnataka6.  He  strongly  disputed  the

admissibility of the confessional statement made by the petitioner before a

Magistrate on 20.11.2010 on the premise that:

(a)  Confession  was  coerced  and  involuntary,  and  in  contravention  of

Section 163, CrPC and Section 24, IEA for first, the petitioner had been

physically  assaulted  by  the  police  whilst  in  custody,  as  evidenced

through  answer  to  Question  8  posed  by  the  Magistrate  during

preliminary  examination  on  19.11.2010.  Second,  the  petitioner  was

6 (1995) 2 SCC 76

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under severe psychological stress owing to the in-custody killing of the

co-accused Mohanakrishnan on 09.11.2010; and  third, circumstances

surrounding confession were suspicious, for the IO (PW-47) moved an

application  stating  that  the  petitioner  was  ready  to  volunteer  a

confession when he was in judicial and not police custody.

(b) The  Magistrate  failed  to  comply  with  the  mandatory  procedure  as

prescribed  under  Section  164,  CrPC  since  he  did  not  inform  the

petitioner that he would not be sent to police custody after recording of

the confessional statement.

23. In light of the vehement attempt at assailing the confessional statement

as  being  non-voluntary  and  violative  of  the  right  guaranteed  under  Article

20(3)  of  the  Constitution  and in  the  alternate  its  reliance for  having  been

retracted by the petitioner, it may be briefly noticed that on a conjoint reading

of  the  confessional  scheme  comprising  of  Sections  163,  164  CrPC  and

Section  24  IEA as  construed  in  a  catena  of  decisions  of  this  Court,  it  is

obvious  that  even in  the  absence of  an  express provision  for  retracting  a

confessionary  statement  once  made,  the  Courts  have  preferred  a  rule  of

prudence whereby in case of retraction, the Court reduces the probative value

of such confessionary statements and seeks corroborating evidence.

24. Hence, the cornerstone of a valid confession in India is only whether

such a statement  was made in compliance with statutory provisions which

mandate that the same must be before the Magistrate after compliance with

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certain safeguards meant to ensure voluntariness and lack of coercion by the

police. This has been so noted by this Court in Bharat v. State of U.P.7:

“7. ...  Confessions can be acted upon if  the court  is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or  promise  and  its  truth  is  judged  in  the  context  of  the  entire prosecution case. The confession must fit into the proved facts and not  run  counter  to  them.  When  the  voluntary  character  of  the confession and its truth are accepted it is safe to rely on it. Indeed a confession,  if  it  is  voluntary  and  true  and  not  made  under  any inducement  or  threat  or  promise,  is  the  most  patent  piece  of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction,  and  must  weigh  the  two  to  determine  whether  the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after thought or advice,  the retraction may not  weigh with the court  if  the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All  the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true. ...”

25. The objective behind such a provision has been explored by this Court

in various decisions wherein it has been noted that provisions permitting use

of confessionary statements in criminal trials were statutorily included as an

acknowledgement of the possibility that in certain circumstances an accused

may voluntarily confess to his offence(s).  

7 (1971) 3 SCC 950

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26. From  a  chronological  analysis  of  the  confessional  statement  of

Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminary examination

held  on  19.11.2010,  it  is  apparent  that  the  learned  Magistrate  -  S.S.

Sathiamoorthy  (PW-28)  duly  complied  with  all  procedural  requirements  for

recording of a confessional statement and affirmatively satisfied himself of the

voluntariness of the petitioner’s confession:

a. During  preliminary  examination,  the  petitioner  informed  the

Magistrate  that  he  was brought  from Central  Jail,  Coimbatore  on

19.11.2010,  hence  abridging  the  possibility  of  any  coercion  or

influence by the police. Further, a perusal of the record shows that

petitioner was last in police custody only on 11.11.2010 and hence

there is no doubt that he had been in judicial custody for some time

prior to giving a confessional  statement.  Hence per  Abdul Razak

Murlaza Dafadar v. State of Maharashtra8 it can be inferred that he

was not under the influence of the investigating agency.   

b. In reply to Question 8 during preliminary examination on 19.11.2010,

when asked by the Magistrate whether someone tortured him, the

petitioner does say that he was beaten by the police. However, when

asked whether the “police tortured and compel you to give statement

like  this”,  the  petitioner  denied  any  such  torture  or  compulsion.

Similarly, when the Magistrate asked him whether he was told some

sweet words such as “the confession statement will be beneficial or

8 AIR 1970 SC 283.

Page 15

where you threatened by police or by anybody else that if statement

was not given”, the petitioner specifically denied the same. He also

acknowledged the fact that he was not under compulsion to give a

confession statement and that he was aware of the fact that such

statement could be used against him. Further, when re-questioned

by the Magistrate if the petitioner was tortured, he answered in the

negative.  Hence,  not  only  was  the  petitioner  inconsistent  in  his

claims, but further it is evident that the alleged physical assault by

the police, if  at all,  would have been committed weeks before the

confession. Vague and passing claims of police assault, supposedly

committed far before the confessional date, cannot be a ground for

holding the confession as coerced.

c. After  preliminary  questioning  on  19.11.2010,  the  petitioner  was

entrusted to the Prison Warden and sent back to judicial custody for

reflection “after duly informing him that he was not under obligation

to  give  confessional  statement.”  The  petitioner  was  re-produced

before the Magistrate on the next day at 2PM and was again given

an opportunity to change his mind and not confess. The Magistrate

once more satisfied himself of the voluntariness of the petitioner and

the  absence  of  any  police  influence.  Hence,  it  is  clear  that  an

adequate  opportunity  to  recant  was  provided  and  the  Magistrate

ensured that  any possible  lingering effects  of  alleged beatings or

psychological stress post encounter of co-accused, would have been

Page 16

mitigated. It is also apparent that the Magistarte duly informed the

petitioner about the repurcussions of his confessional statement, and

made no false assurance of it helping his case, as had been made in

State of Assam v. Rabindra Nath Guha9,  which has erroneously

been relied upon by Mr. Luthra.

d. The  statement  once  recorded,  was  thereafter  read  out  to  the

petitioner  who signed it  to  be  correct.  The Magistrate  signed the

statement  at  4:30PM  on  20.11.2010,  and  afterwards  sent  the

petitioner to judicial custody. The Magistrate thus was fully conscious

of his statutory obligation and factually ensured that the petitioner

was not sent to police custody post the confessional statement. It is

further clear that the petitioner was kept in judicial custody for almost

twenty months after the confession, over the course of which there

was no likelihood of him being entrusted to police, and still no protest

or attempt to retract the confession was made by him.

e. The fact that the application to record the petitioner’s statement was

moved by the IO is inconsequential, as the petitioner was neither in

police  custody  nor,  as  acknowledged  by  him,  the  police  officials

interacted with him during judicial custody. It is thus far-fetched to

use  the  fact  that  police  put  forth  the  request  for  recording  of

confession to suggest that the confession was involuntary or secured

at the behest of police.  

9 1982 Cri LJ 216.

Page 17

27. Further, it is essential to note that the petitioner failed to put forth any

protest  against  the  confessional  statement  despite  having  multiple

opportunities  during  the  course  of  trial.  This  Court  has  held  earlier  in

Shankaria  v.  State  of  Rajasthan10 that  retractions  must  be  made  by  the

accused as soon as possible, otherwise there would be a strong presumption

of voluntariness in the confession.

28. The confession, in the present case, was not challenged during stage of

framing of charge or over the course of examination of forty-seven prosecution

witnesses, but instead only partly disputed through a letter written in secret

just before petitioner’s examination under Section 313 of the Code. It is thus

evident that such retraction at the fag-end of the trial,  was not natural but

rather meticulously formulated, perhaps as a part of defence strategy. Hence,

there  remains  no  doubt  about  the  voluntariness  of  the  confession  of

20.11.2010 or it being unaffected by subsequent retraction.

29. That apart, even if the confession dated 20.11.2010 were to be treated

as  being  retracted  vide  letter  dated  25.07.2012  (as  adopted  during

examination under Section 313 of the Code), still the original confession can

be relied upon. Coupled with corroborating evidence, conviction can also be

secured on the strength of such confession. The rule regarding use of such

retracted confessions was noted by this Court in  Subramania Goundan v.

10 (1978) 3 SCC 435.

Page 18

State of Madras11 as well as by a four-Judge Bench of this Court in Pyare Lal

Bhargava v. State of Rajasthan12, holding that:

“A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court  shall  not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case,  be  convinced  of  the  absolute  truth  of  a  confession  and prepared to act upon it without corroboration; but it may be laid down as  a  general  rule  of  practice  that  it  is  unsafe  to  rely  upon  a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.”

30. Still further, it is clear that even in the retraction statement, the petitioner

has  made  substantial  admissions  which  read  together  with  prosecution

evidence, are sufficient to convict him. Through the letter dated 25.07.2012,

the Petitioner merely restates his confession with certain omissions and a few

denials as compared to his earlier statement. Although he agrees to be at the

place  of  the  occurrence  along  with  the  now  deceased  Mohanakrishnan

throughout the incident, instead of admitting an equal role in commission of

rape and murder, he portrays himself to be a mere helpless bystander. The

petitioner has attempted to justify his retraction by stating that he had told the

truth to the Magistrate but his statement was not read out to him and hence

the Magistrate’s affirmation under Section 164 of the Code is incorrect.

11 AIR 1958 SC 66. 12 AIR 1963 SC 1094.

Page 19

31. A comparison of  the retraction with the confession dated 20.11.2010

further shows that it is merely an improvement. The Petitioner has admitted to

all the general circumstances of the incident, i.e. having been present at the

scene of all  crimes, being friend of the co-accused and of the offences as

claimed by the prosecution to have occurred. However, he merely contends

that the crimes were committed by the co-accused and not by the Petitioner

himself. Regardless thereto, there are sufficient inculpatory admissions in the

letter dated 25.07.2012 to place a strong burden of proof on the Petitioner

under Section 106 of the IEA.  

32. Moreover, we must note that the petitioner has not been convicted by

the Courts below or this Court, solely on the basis of his confession made

under Section 164 of  the Code. The confession has been corroborated by

enough evidence and it would not be a stretch to state that even independent

of such confessional statement, this Court would nevertheless have reached a

firm conclusion of guilt.

INDEPENDENT RE-APPRECIATION OF EVIDENCE

33. The second contention raised by Mr. Luthra is that this Court decided

the appeal without independently re-appreciating all  the material  on record.

We  are  in  strong  disagreement  with  this  contention.  This  Court  critically

analysed all the material witnesses and documents exhibited on record which

were referred to during the course of  arguments.  A careful  examination of

such evidence lead to a unanimous finding of guilt against the Petitioner. It

was noted by the majority that:

Page 20

“PW.20, PW.25 and PW.23 all saw the two accused together with the children at different times on 29.10.2010. Indeed, even if one were to read the confessional statement of the Appellant together with the retraction thereof, the fact that he purchased milk at 1.00 p.m. from PW.23 is clearly made out and the fact that Mohanakrishnan went to meet  the  tailor,  was  also  admitted  by  him  in  both  the  original confessional statement as well as the retraction. It is clear therefore that  the  evidence  of  PW.20  and  23  are  corroborated  by  the confessional statement and the retraction made by the Appellant and therefore the factum of the two accused being with the two children in  the  vehicle  is  clearly  made  out  and  thus  the  High  Court’s conclusion  that  the  last  seen  theory  can  be  relied  upon  cannot possibly be assailed.”

34. Such an independent re-appreciation was also conducted by Khanna J.

in his minority opinion in para nos. 23 to 29.

INADEQUACY OF LEGAL REPRESENTATION

35. Mr. Luthra seeks to make a third core challenge by placing reliance on

Article 21 of the Constitution of India, claiming that it mandates adequate and

efficient  legal  assistance, the denial  whereof would amount  to condemning

one unheard.  

36. There  cannot  be  any  quarrel  with  the  cited  proposition  for  it  is  a

fundamental  tenet  of  criminal  jurisprudence,  least  not  because  of  our

Constitution,  that  every person has a right  to effective legal  assistance.  In

case an accused cannot afford the same, then it is the responsibility of the

State to provide free legal aid, as definitively noted in Hussainara Khatoon v.

State of Bihar13. However, we feel that such a right has been protected in the

13 (1980) 1 SCC 98.

Page 21

present case and the legal representation accorded to the petitioner was not

inadequate.

37. At the outset, as noted in State v. Navjot Sandhu14 judicial scrutiny of a

counsel’s performance must be careful,  deferential  and circumspect for not

doing so would give rise to the dangerous possibility of convicts raising such

pleas of inadequate legal assistance after adverse verdicts. It would also be

useful to cite Strickland v. Washington15 wherein the Supreme Court of the

United States, laid down that to demand re-trial  or acquittal  on grounds of

inadequate  legal  representation,  the  accused  must  show  both  that  the

assistance  of  the  counsel  was  deficient  per  an  objective  standard  of

reasonableness as developed by customary practice,  as well  as that  such

deficiency has with a reasonable probability affected the outcome of the case,

such that  had he received adequate representation,  the result  would have

been different.  

38. It is clear that the petitioner has failed to demonstrate either of these

legs in the present case. Although it is correct that seven counsels refused to

defend the Petitioner and there was a resolution by the bar to not take up his

brief, but the Trial Court ensured the services of a legal aid counsel who ably

conducted petitioner’s defence during the trial. The record reveals that from

23.02.2011  till  18.06.2012,  no  effective  proceedings  were  held  and  post

18.06.2012,  legal  aid  counsel  Mrs.  A.  Sharmila  appeared on behalf  of  the

petitioner. The length and quality of cross-examination conducted by the court-

14 (2005) 11 SCC 600. 15 466 U.S. 668 (1984).

Page 22

appointed counsel testifies her legal acumen and professional ability. Hence,

there can be no question on the adequacy of counsel’s performance.

39. Notwithstanding  the  above  determination,  we  must  note  that  in  the

present  facts  no  prejudice  has  been  caused  to  the  petitioner  for  want  of

adequate or proper legal assistance. Not only did the High Court reappreciate

the  entire  evidence,  but  it  also  conducted  another  examination  of  the

Petitioner under Section 313, CrPC. Furthermore, the High Court appointed a

Senior Advocate, Mr. A Raghunathan, in addition to Advocate Smt. Vairam, to

provide the best legal services to the Petitioner. Similarly, in appeal, this Court

both re-appreciated the evidence and ensured due legal representation. Even

in  the  present  Review,  the  petitioner’s  interests  are  protected  by  an

outstanding Senior Counsel and as a matter of abundant caution, we have

also conducted an elaborate analysis. We thus do not find this to be a case of

deficient legal assistance, affecting the Petitioner’s rights under Article 21 of

the Constitution.

40. The plea regarding absence of a counsel during proceedings before the

Magistrate  under  section  164,  CrPC  resulting  into  any  prejudice,  are

misconceived.  What  mandatorily  is  needed,  as  noted  earlier,  is  that  the

Magistrate must satisfy himself of the voluntariness of the statement and all

the statutory safeguards which includes bringing the repercussions and the

voluntariness of making confessions to the knowledge of the accused, must

be meticulously complied with. It is pertinent to take note of the first Proviso to

Section 164(1), added with effect from 31.12.2009, which specifies that:

Page 23

“Provided that  any confession or statement made under this  sub- section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.”

(emphasis supplied)

41. Section 164 of the Code thus does not contemplate that a confession or

statement should necessarily be made in the presence of  the advocate(s),

except,  when  such  confessional  statement  is  recorded  with  audio-video

electronic means.

DISCREPANCIES IN ARREST & RECOVERY OF EVIDENCE

42. The next contention of Mr. Luthra revolves around the date of arrest of

the petitioner. According to him, the petitioner was arrested from his village

Anglapurchi post-midnight on 29.10.2010 and not on 31.10.2010 at 7:00 a.m.

The  petitioner  was  not  sent  to  custody  after  formal  arrest  till  an  alleged

confession was recorded before the Village Administrative Officer, S. Ganesan

(PW-30). Mr. Luthra relies upon the cross-examination of PW-47 where he is

stated  to  have admitted  that  the  petitioner  was  caught  in  his  village  after

midnight of 29.10.2010.  

43. Not only is the dispute re: the date of arrest immaterial for determination

of  petitioner’s  guilt  in  the  present  case,  but  we otherwise do not  find  any

substance therein.  First, the petitioner’s arrest on 31.10.2010 at 7:00 a.m. is

proved by Exhibit D4 which is duly signed by his father (DW-1). P. Ramasamy

(DW-1) has admitted his signatures on the Exhibit D4, proving the date and

time of the arrest. Second, the plea at best assumes violation of Section 167

of CrPC which mandates production of the suspect before the jurisdictional

Page 24

magistrate within 24 hours of arrest.  The adverse impact of such assumed

variation  on  the  Judicial  proceedings  has  also  not  been  convincingly

demonstrated. Mr. Luthra’s contention would have carried some weight had it

been a case of making confessional statement by the petitioner before the

Judicial Magistrate on 30/31.10.2010, that is, when he was allegedly in police

custody.

44. Mr. Luthra very ably made an attempt to cast doubt on the recovery of

the underwear of the deceased girl as well as the presence of pubic hair of the

Petitioner on the said underwear. It was argued that the underwear worn by

the deceased remained in the custody of the police till 01.11.2010, therefore

plantation of hair on the panty cannot be ruled out.  

45. Firstly, such a plea is at variance from the submission made before the

High Court  where it  was argued that  police had planted the pubic hair  on

04.11.2010. Secondly, there is no factual discrepancy in the prosecution case

as may be seen from the following facts:

i. The police found Mohanakrishnan in  the  house of  one A.  Anbu

(PW-7)  on  29.10.2010  at  about  9:45  pm.  Pursuant  to  this,  the

Maruti Van was inspected by the police in presence of PW-7 and

one Santosh Kumar. Appropriately, Mahazar (Ex.P.4) was prepared

by the police incorporating details of seizure of van and presence of

stains on its doors and floor mat.  

Page 25

ii. Thereafter, A. Sarvanan (PW-43), Deputy Director of Mobile Unit of

Tamil  Nadu Forensic Sciences Department was called by the IO

(PW-47)  at  around midnight  of  29/30.10.2010.  PW-43 examined

the van whereby the underwear of the deceased girl (MO-1) was

found with hair strands. Cellophane tape was applied to the hair

strands by PW-43, to keep them at their spot and the MO-1 was

then put in a cover and sealed. Further, PW-47 sealed the same in

an ‘Angelform’ brassieres cardboard box, obtained from vicinity and

seized it as Mahazar (Ex.P.5).   

iii. Accordingly, Ex.P.5 reached the Judicial Magistrate on 30.10.2010

along with Form 95 pertaining to the MO-1. This explains the delay

of one day in production of Ex.P.5 before the Judicial Magistrate.  

iv. Moreover,  since  30.10.2010  was  a  Saturday,  the  Judicial

Magistrate  directed  Ex.P.5  to  be  produced  again  on  the  next

working  day  i.e.  01.11.2010.  Hence,  the  box  was  re-produced

before  the  Judicial  Magistrate  on  01.12.2010  and  was  then

forwarded to Tamil Nadu Forensic Sciences Department for further

analysis.  

46. PW-43 prepared his report (Ex.P.38) and sent it  to the IO for further

forensic examination, wherein it was recorded that:

“a) A Pink coloured panty printed letters “SBT kids wear” “75cms” with pale brownish starchy like stains with small hair pieces on its inner surface was found beneath the back seat of the vehicle was identified, collected. The place where the hair pieces were seen were

Page 26

marked and pasted with cellphone tape in order to safety transport the vital cue materials for comprehensive Forensic analysis.”

47. Additionally, Mrs. Lakshmi Balasubramanian (PW-49), Deputy Director

of  DNA Division  of  the  Forensic  Science Department  stated  in  her  cross-

examination that  the underwear was received by her for examination, in a

sealed parcel. She has said:

“It is correct to state that my first prerogative is to satisfy that the seal of the container in which the items received for testing, is not broken. It is correct to state that the items and the paper covers would be sealed with the Medical Officer’s seal. The parcel received by me contained the Medical  Officer’s  seal  and not  any Court  seal.  It  is correct to state that in my report I have not mentioned that the seals were not broken.  

XXX

By “correct seals”, I mean that the same seal on the letter and the sample seal on the paper covers are the same.”

48. Analysis  of  the  depositions  as  reproduced  above  prove  that  the

underwear  was  recovered  and  sent  for  forensic  examination  without  any

tampering. The seal on the parcel containing the underwear was still  intact

when PW-49 received it for forensic examination.  

49. We find that the contention of the learned Senior Counsel, pertaining to

non-production of the property room Register is of no force since it has not

been  raised  before  at  any  stage  of  the  proceedings  and  thus  cannot  be

allowed to be argued afresh at the stage of Review. Furthermore, casting a

doubt on the identification of MO-1 by the father of deceased (PW-1) is also

baseless  and  holds  no  ground.  Merely  because  PW-1  did  not  dress  his

Page 27

daughter  on  the  date  of  the  incident  does  not  imply  that  he  would  not

recognize a piece of clothing of his daughter. PW-1 has clearly deposed that

MO-1 belongs to his daughter.  

ERRONEOUS CONVICTION UNDER SECTION 376 IPC

50. In the judgment-under-review, it was argued by Mr. Luthra that even per

the  confessional  statement,  the  accused  only  committed  anal  intercourse

which  is  punishable  under  Section  377  IPC,  and  he  has  been  wrongly

convicted under Section 376 IPC. Such a plea, however, does not find support

from the overwhelming evidence to the contrary. First, relevant portions of the

confessional statement need to be extracted:

“… I asked him to give me a chance. He asked me to do it with the girl. Seated from the front seat, Mohan saw. I went and saw the girl who was without a pant. I placed my penis on the front side when the girl cried saying it was paining. Then I did through backside through anus. Even that did not come good for me. Then I masturbated and brought out semen. …”

51. The confessional statement lucidly reveals that the accused placed his

penis on the vagina of the deceased girl consequent to which she cried. This

act  of  the  Petitioner  satisfies  all  relevant  ingredients  of  Section  376  as  it

existed at  the relevant  time.  The only  dispute that  remains is  whether the

Petitioner committed peno-vaginal penetration or not. However, the medical

evidence shows that vaginal intercourse had been committed with X and that

there was a contusion on the petitioner’s private part. Relevant portions of the

post-mortem of X as deposed by PW-46 are reproduced below:

Page 28

“… The anti-mortem injuries that had been caused on the body are:

XXX

4) A contusion of 2 x 1 cm x 0.5 cm on the inner lower aspect of Vagina and the inner edge of uterus. Hymen was in tact.

5) When anus was examined, it was found to be bigger in size, 3 cm wide.”

52. Furthermore,  following  the  orders  of  Magistrate  on  04.11.2010,  Dr.

Jeyasingh examined Manoharan and observed an injury on his penis in his

report (Ex.P.56) as:

“A dark colour contusion noted over proximal part of glands penis around urethral orifice.”

53. It  is  evident  from the deposition of  PW-46 that  the vagina of  X was

penetrated. Also, Dr. Jeyasingh (PW-46), who conducted the autopsy on the

body of X had stated in his final opinion (Ex.P.50):

“The deceased would appear to have died of DROWNING. Injuries noted on the vagina and anus due to forcible sexual assault.”

54. Furthermore, the evidence of his pubic hair found in the girl’s underwear

coupled with DNA Report that those were his hair belies his plea of not having

committed the ghastly crime. The DNA Report, as deposed by Mrs. Lakshmi

Balasubramanian (PW-49), affirms the pubic hair found in the underwear of X

to  be  that  of  the  petitioner.  Relevant  portion  of  the  statement  of  PW-49,

delineating the DNA Report reads as follows:

“Conclusion: From the DNA typing results of the above samples, it is found  that  the  pubic  hair  in  item  [8]  belongs  to  a  human  male individual and is that of alleged accused -2 Manoharan. The report DNA 220/2010 is given and signed by me. The said report with four annexures is marked as Ex.P.48B.”

Page 29

55. Considering the final opinion of Dr. Jeyasingh stating that the girl was

subjected to sexual assault; injury on the penis of petitioner; recovery of dead

body of  X without underwear;  recovery of  underwear from the Maruti  Van;

father  of  X  recognising  the  underwear;  finding  hair  on  the  recovered

underwear and matching of DNA of hair with that of Manoharan, we are of the

view that even in absence of the confessional statement of the petitioner, it is

established  the  petitioner  committed  offence  under  Section  376  IPC.  The

retraction dated 25.07.2012 may merely eclipse some part of the inculpatory

evidence but cannot be construed to render the entire evidence exculpatory.

Hence, we do not find any substance in the contention of Mr. Luthra and are of

the view that the petitioner is justly convicted for offence under Section 376

IPC.   

ERRONEOUS RELIANCE ON POCSO

56. It was then urged that this Court ought not to have relied on a recent

amendment to the Protection of Children from Sexual Offences (POCSO) Act,

2012 to justify death penalty, as the new law was non-existent on the date of

occurrence  and  hence  cannot  be  applied  retrospectively  in  derogation  to

Article 20 of the Constitution.  

57. Although the plea is attractive at first glance, it must be noted that the

Petitioner  has  not  been  convicted  or  sentenced  under  the  POCSO  Act.

Instead, only a passing reference was made to pinpoint whether the present

case was rarest of the rare and whether it would shock the conscience of the

Page 30

society. It has been noted by this Court in Macchi Singh v. State of Punjab16

and  various  other  judgments  that  in  order  to  uphold  the  guarantee  under

Article  21  and  to  reduce  arbitrariness  caused  by  discretion  of  judges  in

sentencing,  it  should  be  the  opinion  of  the  society  and  not  the  personal

opinion of the judge which should be considered whilst awarding sentence of

death. Towards the same, a change in law during pendency of the case is an

apt indicator of societal opinion as legislated by elected representatives. It is

not  the  case  here  that  Petitioner  has  not  been  convicted  of  an  offence

otherwise not punishable with death.  

SENTENCING

58. Lastly,  Mr.  Luthra impassionedly  urged that  this  is  not  a  fit  case for

award  of  death  penalty,  especially  when,  the  death  penalty  has  been

confirmed only by way of 2:1 split decision. Relying on the minority opinion of

Thomas J. in  Suthenraraja v. State,17 he vehemently argued that in a case

where one of the Hon’ble Judges did not deem it appropriate to award death

penalty,  that  in  itself  ought  to  be  a  sufficient  ground  to  commute  death

sentence in Review. He also urged this to be a case of ‘residual doubt’, as

evolved  in  Ravishankar  v.  State  of  Madhya  Pradesh18, which  is  also  a

mitigating circumstance to be taken note of by the Court whilst considering

whether the case falls in the category of  “rarest  of  rare cases”.  He further

16 AIR 1983 SC 957.

17 (1999) 9 SCC 323.

18 2019 SCC OnLine SC 1290

Page 31

argued  that  neither  the  High  Court  or  this  Court  gave  due  weightage  to

mitigating circumstances such as:  

(i) Lack of adequate opportunity to place on record material/evidence of

mitigating circumstances.  

(ii) Young age (less than 30 years) of petitioner, and aged parents.  

(iii) Absence of any previous criminal history.  

(iv) Backward socio-economic background.

(v) Death ought not to be awarded in cases of circumstantial evidence.

59. At this juncture, it  is necessary to highlight that the contention of Mr.

Luthra urging that death ought not to be awarded in case of a single dissent,

notwithstanding the opinion of  the majority is unsupported in view of more

than one decisions of this Court. In Devender Pal Singh v. State of NCT of

Delhi19 and also in  Krishna Mochi v. State of Bihar20,  a concurrent Bench

had refused to review the death sentence which had earlier been upheld in

appeal  by  two  out  of  three  judges  of  this  Court.  The  reliance  on

Suthendraraja (supra) itself is erroneous for the proposition relied upon was

delivered in a minority opinion, which was unsupported both by the order of

the Court and also was disagreed with by Quadri J., who noted:

“The ambit of Rule XL(1) of the Supreme Court Rules which provides grounds  for  review,  as  interpreted  by  this  Court  in P.N.  Eswara Iyer v. Registrar, Supreme Court of India [(1980) 4 SCC 680] vis-à- vis criminal proceedings, is not confined to “an error apparent on the face of the record”. Even so by the process of interpretation it cannot be stretched to embrace the premise indicated by my learned brother

19 (2003) 2 SCC 501. 20 (2003) 2 SCC 501.

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as a ground for review. That apart there are two difficulties in the way. The first is that the acceptance of the said proposition would result in equating the opinion of the majority to a ground analogous to “an error apparent on the face of the record” and secondly in a Bench of three Judges or of greater strength if a learned Judge is not inclined to confirm the death sentence imposed on a convict,  the majority will be precluded from confirming the death sentence as that per se would become open to review.

60. Further,  even  sans  the  aforesaid  decisions,  we  are  not  inclined  to

accept such a reasoning for it is contrary to the established jurisprudence of

precedents and interpretation of verdicts with multiple opinions. It is settled in

law that dissenting opinions have little precedential value and that there is no

difference  in  operation  between  decisions  rendered  unanimously  or  those

tendered by majority, albeit with minority dissenting views.

61. Although Mr.  Luthra’s  contention that  the petitioner  has not  received

adequate  opportunity  to  place  material  regarding  his  circumstances  is

unsubstantiated,  we have nevertheless re-considered sentencing. We have

re-visited the mitigating circumstances against aggravating circumstances, as

well as a report commissioned by this Court during the course of appeal and

submitted by the jail  superintendent  which reveals  that  the conduct  of  the

Petitioner  is  merely  satisfactory  and  he  has  not  undertaken  any  study  or

anything else to show any signs of reformation.  

62. It has been made clear in the preceding parts of this judgment that the

prosecution  case  has  been  established  through  numerous  evidences  in

addition to there being a clear confession, which proves the Petitioner’s guilt

beyond any residual doubt. Conflicting versions have been deposed by the

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Petitioner and the defence witnesses, and no explanation to discharge the

onus under Section 106 has been provided. Hence, it  is not a case fit  for

application of the theory of “residual doubt” as noted in Ravishankar (supra).

Accordingly,  even  the  contention  that  death  ought  not  to  be  awarded

considering that the present case is one involving circumstantial evidence is

unfounded. It is no longer  res integra  that there can be no hard rule of not

awarding death in cases based on circumstantial  evidence owing to recent

developments in medical science and the possibility of abuse by seasoned

criminals.

63. Furthermore,  there  is  nothing  to  support  the  characterisation  of  the

accused as being a helpless, illiterate young adult who is a victim of his socio-

economic circumstances. Far from being so, it is clear through the version of

events that the accused had the presence of mind to craft his own defence

and attempt to retract  his confession through an elaborately written eleven

page letter addressed to the Magistrate and had further received adequate

legal representation.  

64. Mr. Luthra’s reliance on the retraction letter to contend that in so far as

the statement shows that he stopped the co-accused from committing rape, is

evident of the fact that he has remorse which entitles him to commutation, if

not  acquittal,  is  misplaced.  As  noted  earlier,  the  retraction  was  extremely

belated and only a defence to shield himself. Further, medical evidence has

proved that rape was committed on the deceased girl.  It  is hence factually

incorrect to state that the Petitioner prevented the co-accused from raping the

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girl and is nothing more than a belated lie at the end of the trial. Hence, the

exculpatory  parts  ought  to  be  excluded  per  Nishi  Kant  Jha  v.  State  of

Bihar21.

65. Even observed devoid of any aggravating circumstances, mere young

age and presence of aged parents cannot be grounds for commutation. One

may view that such young age poses a continuous burden on the State and

presents a longer risk to society, hence warranting more serious intervention

by  Courts.  Similarly,  just  because  the  now  deceased  co-accused

Mohanakrishnan was the mastermind whose offence was comparatively more

egregious, we cannot commute the otherwise barbarically shocking offences

of the petitioner. We are also not inclined to give leeway of the lack of criminal

record,  considering  that  the  current  crime  was  not  just  one  offence,  but

comprised of multiple offences over the series of many hours.  

66. Even  if  the  cases  involving  confession  merit  some  leniency  and

compassion,  however,  as  was  earlier  noted  in  our  majority  opinion,  the

attempted retraction of the statement shows how the petitioner was in fact

remorseless.  Such belated  retractions  further  lay  rise  to  the  fear  that  any

remorse or repentance being shown by the petitioner now may be temporary

and that he can relapse to his old ways. Irrespective of the underlying reasons

behind such retraction, whether it be the fear of death or feeling that he was

not getting any benefit of his earlier confession, but the possibility of recidivism

21 1969 SCC (1) 347.

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has only been heightened and we can no longer look at the initial confession

in a vacuum.

67. Rather, the present case is essentially one where two accused misused

societal trust  to hold as captive two innocent school-going children, one of

whom was brutally raped and sodomised, and thereupon administered poison

and finally, drowned by throwing them into a canal. It was not in the spur of the

moment or a crime of passion; but craftily planned, meticulously executed and

with multiple opportunities to cease and desist.  We are of the view that the

present offence(s) of the Petitioner are so grave as to shock the conscience of

this Court and of society and would without doubt amount to rarest of the rare.

68. Hence,  we  find  that  there  exist  no  grounds  to  review  our  judgment

upholding conviction and death penalty. The review petitions are accordingly

dismissed.

…………………………….. J.    (ROHINTON FALI NARIMAN)

………..…………………...J. (SURYA KANT)

NEW DELHI DATED : 07.11.2019

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REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

REVIEW PETITION (CRIMINAL) NOS. 446-447 OF 2019 IN

CRIMINAL APPEAL NOS. 1174-1175 OF 2019   

MANOHARAN …..            PETITIONER(S)

VERSUS

STATE BY INSPECTOR OF POLICE,  VARIETY HALL POLICE STATION,  COIMBATORE. …..        RESPONDENT(S)

O R D E R

SANJIV KHANNA, J.

I  entirely  agree and concur with the reasons given by my

brother Surya Kant, J in dismissing the review petitions upholding the

conviction of Manoharan under Sections 302, 376(2)(f) and (g) and

201 of the Indian Penal Code.  On the question of sentence, I do not

see any good ground and reasons to review my observations and

findings in the minority judgment.  Accordingly, the review petitions

are dismissed.  

 ......................................J.

(SANJIV KHANNA) NEW DELHI; NOVEMBER 07, 2019.

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