Crl.A.@ SLP(Crl.)No.7645/13

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 94  OF 2019 [Arising out of S.L.P.(Crl.)No.7645 of 2013]

Nand Kishore ... Appellant

Versus

State of Madhya Pradesh ... Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. This  criminal  appeal  is  filed  by  the  appellant  in

Criminal Appeal No.798 of 2013 filed before the High court

of Madhya Pradesh at Jabalpur, aggrieved by the judgment

dated  25.06.2013.   By  the  aforesaid  judgment,  while

dismissing  the  appeal  preferred  by  the  appellant  herein

convicted for the offence under Sections 302, 363, 366 and

376(2)(i) of the Indian Penal Code (IPC), the High Court

answered  the  reference  in  affirmative  by  confirming  the

death sentence awarded to the appellant.

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3. Necessary facts, in brief, giving rise to this appeal

are that the deceased, a minor girl aged about 8 years, had

gone to attend the ‘Mela’ along with her younger brother

namely Chhunu (PW-4) on 03.02.2013.  It is the case of the

prosecution that the appellant who is aged about 50 years

then, took away the deceased from the ‘Mela’ and committed

rape and murdered her.  Narendra (PW-2) informed the police

stating  that  his  daughter,  who  had  gone  to  attend  the

‘Mela’, has not returned home.  Upon such complaint, case

was registered and investigation commenced.  In the course

of  investigation  one  Amit  Mourya  (PW-1)  informed  the

Investigating Officer that when he was coming to his shop

from residence, he saw a dog running away with a leg of a

child in its mouth and on being chased, the dog dropped the

leg  and  ran  away.   Further,  it  was  the  case  of  the

prosecution  that  in  the  process  of  investigation,

Investigating Officer found a headless body of the deceased

in the bushes near the ‘Dushera Maidan’, Bhopal.  It is

alleged that the left leg of the deceased was found at a

distance of 100 ft. and both legs were fractured.  Further,

it is noticed that there were severe injuries on the private

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parts of the deceased inflicted by the appellant due to

which the intestine had come out.  During the process of

investigation the statement of the appellant was recorded

under Ex.P8 and the blood stained cloths and articles he

used for the offence were recovered from his house.  After

completing  the  investigation,  the  appellant  was

chargesheeted for the offence punishable under Sections 363,

366, 376(2)(i)  and 302 of the IPC and Sections 5 and 6 of

Protection of Children from Sexual Offences Act, 2012.

4. The trial court, after appreciation of the evidence on

record,  which  is  mainly  circumstantial,  came  to  the

conclusion  that  the  appellant  has  committed  rape  on  the

minor girl and murdered her and further, by recording a

finding that the crime committed by the appellant is heinous

and barbaric, falls within the category of ‘rarest of rare’

cases, imposed the death sentence.  The appellant is also

convicted and  sentenced for  the offence  punishable under

Sections 363, 366, 376(2)(i) of the IPC.  In view of the

award  of  death  sentence,  the  trial  court  has  made  a

reference  to  the  High  Court  for  confirmation,  as

contemplated  under  Section  366  of  the  Code  of  Criminal

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Procedure (Cr.PC).  Questioning the conviction recorded and

sentence imposed, the accused has filed appeal in Criminal

Appeal No.798 of 2013 and the High Court has disposed of, by

common judgment, Criminal Reference No.05/2013 and Criminal

Appeal  No.798/2013.   The  High  Court,  by  judgment  dated

25.06.2013, while dismissing the appeal of the appellant,

has affirmed  the reference  confirming the  death sentence

awarded to the appellant.

5. We  have  heard  learned  senior  counsel  for  the

appellant,  Sri  Sanjay  R.  Hegde  and  also  learned  counsel

appearing for the State Ms. Swarupama Chaturvedi.

6. In this appeal, it is contended by learned counsel for

the  appellant  that  though  there  is  no  acceptable  and

convincing evidence to prove the guilt of the accused beyond

reasonable doubt, the appellant is convicted by the trial

court  based  on  the  circumstantial  evidence  which  is  not

enough to record guilt of the accused.  It is submitted that

from the evidence on record, the prosecution has also failed

to prove concept of ‘last seen’.  It is further submitted

that the trial court as well as High Court has committed

error  in  imposing  the  death  sentence  upon  the  appellant

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without examining mitigating circumstances.  It is submitted

that the sentence imposed is illegal and contrary to the

legislative mandate under Sections 235(2) and 354(3) of the

Cr.PC.   It  is  contended  that  without  examining  relevant

considerations  of  legislative  policy  discernible  from

Sections 354(3) and 235(2) of the Cr.PC, only by recording a

finding that the incident is barbaric, the trial court and

the  appellate  court  have  recorded  that  the  case  of  the

prosecution falls under ‘rarest of rare’ cases and imposed

death sentence.  It is submitted that all the mitigating

circumstances  which  exist  were  to  be  considered.   The

penalty of death imposed is required to be modified.

7. To  support  his  contention,  learned  counsel  has

referred to certain cases decided by this Court in identical

circumstances.  It is specifically submitted that relevant

aspects,  like,  the  socio-economic  background  of  the

appellant,  lack  of  criminal  antecedents,  possiblity  of

reform,  are  not  considered.   It  is  also  brought  to  the

notice of this Court that the local Bar Association, Bhopal

had  refused  to  represent  the  appellant,  as  such,  the

appellant was not represented by counsel before the trial

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court until the date of the framing of the charge.  On

request  made  by  the  appellant  on  the  day  of  framing  of

charge, for grant of legal aid, trial court has requested

one Mr. Katyayni to appear and the same day charges were

framed and the trial was proceeded with.

8. On the other hand, learned counsel appearing for the

State has submitted that though the appellant was convicted

based on circumstantial evidence, but the evidence adduced

is sufficient and consistent.  It is submitted that PW-4 had

identified the accused as the person with whom the deceased

was last seen and PW-4 also identified the accused in the

Test Identification Parade.  Further, PW-7 has categorically

stated in his deposition that he saw the accused in the

company of minor girl wearing yellow frock at 9 p.m. on

03.02.2013.  It is submitted that the said oral evidence if

considered with reference to report of the forensic expert

and  medical  evidence  on  record,  there  is  absolutely  no

infirmity  in  the  findings  recorded  by  the  trial  court

convicting  the  appellant  for  offences  charged.   It  is

stated, having regard to the nature of the crime, that it is

heinous  and  barbaric,  it  falls  within  the  category  of

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‘rarest of rare’ cases.  It is submitted that having regard

to reasons recorded by the trial court, as confirmed by the

High  Court,  there  are  no  grounds  to  interfere  with  the

conviction recorded and sentence imposed on the appellant.

9. Having heard the learned counsel for the parties, we

have perused the judgment of the trial court and High Court

and other material placed on record.

10. So  far  as  the  conviction  is  concerned,  we  are

satisfied  with  the  findings  recorded  by  the  trial  court

which are based on the appreciation of oral and documentary

evidence on record.  

11. Though  the  case  totally  rests  on  circumstantial

evidence, it is to be noticed that PW-4 is the brother of

the deceased who has accompanied the deceased to ‘Mela’ on

the fateful day, i.e., on 03.02.2013.  He has identified the

accused in the Test Identification Parade and further he has

categorically  stated  that  the  appellant  took  away  the

deceased from the ‘Mela’.  Further, PW-1 – Amit Mourya, has

deposed  that  when  he  was  coming  from  his  shop  to  the

residence, he saw a dog running away with a leg of a child

in  its  mouth  and  on  being  chased  it  dropped  the  leg.

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Further investigation revealed detection of headless body of

the deceased in the bushes.  Further, PW-7 Abid Qureshi, has

also stated that he had seen the appellant on 03.02.2013 at

9:00 p.m.  with a girl wearing yellow frock.  By applying

the ‘last seen’ theory to the facts of the case and further

considering the  forensic and  medical evidence  on record,

trial court has rightly recorded guilt of the accused for

the offences alleged.  Even the High Court, referring to the

relevant  evidence  on  record,  has  rightly  confirmed  the

conviction of the appellant for the charges levelled against

him.

12. In this appeal, learned counsel for appellant focussed

on death penality imposed and submitted that the relevant

aspects are not considered before recording a finding that

the case falls in the category of ‘rarest of rare’ cases, so

as to impose the death penalty.  It is the specific case of

the  appellant  that  several  relevant  aspects  which  are

required  to  be  considered  before  recording  a  finding  of

‘rarest of rare’ cases have escaped the attention by the

trial  court  as  well  as  by  the  High  Court.   It  is

specifically argued that special reasons, as required under

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Section  354(3)  of  the  Cr.PC  are  not  recorded;  reasons

recorded to impose death sentence, cannot be construed as

special reasons within the meaning of Section 354(3) of the

Cr.PC.   It  is  further  submitted  that  for  the  persons

convicted of murder, life imprisonment is a rule and death

sentence  is  an  exception,  as  observed  by  a  Constitution

Bench of this Court in case of  Bachan Singh v. State of

Punjab1 and further, it is submitted, that contrary to the

ratio laid down in the aforesaid judgment, the focus was on

the crime alone though it is the duty of the courts to pay

heed  to  the  circumstances  of  the  crime  as  well  as  the

criminal.   Further,  the  mitigating  circumstances  which

existed  and  are  to  be  given  liberal  and  expansive

interpretation, are omitted from the consideration.  It is

further  submitted  that  the  sentence  of  death  is  to  be

imposed only in cases when the option of life imprisonment

is unquestionably foreclosed.

13. A useful reference can be made to the judgment in this

regard in the case of  Swamy Shradhananda(2) v. State of

Karnataka2.  In the aforesaid judgment, while confirming the

1 (1980) 2 SCC 684 2 (2008) 13 SCC 767

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conviction for offence under Section 302 of IPC, this Court,

having regard to the facts and circumstances of the case and

considering the evidence on record,  has substituted the

death  sentence  by  imposing  imprisonment  for  life  with  a

specific direction that he shall not be released from the

prison till the rest of his life.  In para 92, this Court

has observed as under :

“92. The matter may be looked at from a slightly different angle.  The issue of sentencing has two aspects.  A sentence may be excessive and unduly harsh  or  it  may  be  highly  disproportionately inadequate.  When an appellant comes to this Court carrying  a  death  sentence  awarded  by  the  trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just  falls  short  of  the  rarest  of  the  rare category  and  may  feel  somewhat  reluctant  in endorsing the death sentence.  But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life  imprisonment  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 limited only  to  two  punishments,  one  a  sentence  of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may  feel  tempted  and  find  itself  nudged  into endorsing the death penalty.  Such a course would indeed be disastrous.  A far more just, reasonable and proper course would be to expand the options and  to  take  over  what,  as  a  matter  of  fact, lawfully belongs to the Court i.e. the vast hiatus between  14  years’  imprisonment  and  death.   It needs to be emphasised that the Court would take

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recourse to the expanded option primarily because in  the  facts  of  the  case,  the  sentence  of  14 years’ imprisonment would amount to no punishment at all.”

In the case of  Neel Kumar v. State of Haryana3 which is a

case of rape and murder of a minor, while confirming the

conviction, this Court, on the facts and circumstances of

the case and having regard to the evidence on record, has

modified the death sentence with award of life imprisonment

and directed that the accused must serve a minimum of 30

years of jail without remission.  Paragraphs 37, 38 and 39

of the said judgment read as under :

“37. A three-Judge Bench of this Court in  Swamy Shraddananda (2) v. State of Karnataka  (2008) 13 SCC 767, considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in  order  to  serve  the  ends  of  justice,  the appellant  therein  would  not  be  released  from prison till the end of his life.

38. Similarly, in Ramraj v. State of Chhattisgarh (2010) 1 SCC 573, this Court while setting aside the  death  sentence  made  a  direction  that  the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years’ imprisonment.

39. Thus, in the facts and circumstances of the case, we set aside the death sentence and award life  imprisonment.   The  appellant  must  serve  a

3 (2012) 5 SCC 766

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minimum of 30 years in jail without remissions, before  consideration  of  his  case  for  premature release.”

In the case of  Selvam v. State4 which is a case involving

murder  and  rape  of  a  child  aged  about  9  years,  without

interferring with the finding of conviction, this Court, in

the facts and circumstances of the case and considering the

evidence on record, imposed a sentence of 30 years in jail

without remission.  In the case of Tattu Lodhi v. State of

Madhya Pradesh5 in a case involving kidnapping of minor girl

aged about 7 years and attempt to rape and murder, in the

facts of the case and the evidence on record, death sentence

was modified to imprisonment for life with a direction not

to release the accused from prison till he completes actual

period of 25 years of imprisonment.  Further, in the case of

Raj  Kumar  v.  State  of  Madhya  Pradesh6 in  similar

circumstances, this Court has modified death sentence and

awarded life imprisonment and directed the appellant therein

to serve a minimum of 35 years in jail without remission.

Further, in the case of Anil v. State of Maharashtra7 where

4 (2014) 12 SCC 274 5 (2016) 9 SCC 675 6 (2014) 5 SCC 353 7 (2014) 4 SCC 69

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in a case involving murder of a 10 year old boy who was

subjected  to  carnal  intercourse,  this  Court  has  held  as

under :

36.  The  legislative  policy  is  discernible  from Section 235(2) read with Section 354(3) CrPC, that when  culpability  assumes  the  proportions  of depravity, the Court has to give special reasons within  the  meaning  of  Section  354(3)  for imposition  of  death  sentence.   A  legislative policy is that when special reasons do exist, as in the instant case, the Court has to discharge its  constitutional  obligations  and  honour  the legislative  policy  by  awarding  appropriate sentence, that is, the will of the people.  We are of  the  view  that  incarceration  for  a  further period  of  thirty  years,  without  remission,  in addition to the sentence already undergone, will be  an  adequate  punishment  in  the  facts  and circumstances  of  the  case,  rather  than  death sentence.  Ordered accordingly.”

14. The learned counsel appearing for the State has placed

reliance on the judgment of this Court in the case Mukesh &

Anr. v. State (NCT of Delhi) & Ors.8 [known as Nirbhaya

case] in support of her case and submitted that applying the

ratio laid down in the aforesaid judgment, the case falls in

the ‘rarest of rare’ cases attracting death penalty.  With

reference to above said arguments of learned counsel for the

State, it is to be noticed that the case of Mukesh (supra)

8 (2017) 6 SCC 1

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is distinguishable on the facts from the case on hand.  It

is to be noticed that Mukesh (supra) is a case of gang-rape

and murder of the victim and an attempt to murder of the

male victim.  It was the specific case of the prosecution

that the crimes were carried out pursuant to a conspiracy

and the accused were convicted under Section 120-B of the

IPC apart from other offences.  Further, as a fact, it was

found in the aforesaid case that the accused-Mukesh had been

involved  in  other  criminal  activity  on  the  same  night.

Further, it is also to be noticed that in the aforesaid

case, there was a dying declaration, eye witness to the

incident etc. So far as the present case is concerned, it

solely rests on circumstantial evidence.  It is the specific

case of the appellant that he was denied the proper legal

assistance in the matter and he is a manhole worker.  The

appellant was aged about 50 years.  Further, in this case

there is no finding recorded by the courts below to the

effect that there is no possibility of reformation of the

appellant.  We are of the view that the reasons assigned by

the  trial  court  as  confirmed  by  the  High  Court,  do  not

constitute special  reasons within  the meaning  of Section

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354(3) of the Cr.PC to impose death penalty on the accused.

Taking into account the evidence on record and the totality

of the circumstances of the case, and by applying the test

on the touchstone of case law discussed above, we are of the

view that the case on hand will not fall within the ‘rarest

of rare’ cases.  In that view of the matter, we are of the

view that the death sentence imposed by the trial court, as

confirmed  by  the  High  Court,  requires  modification.

Accordingly,  this  appeal  is  allowed  in  part;  while

confirming the conviction, recorded by the trial court, as

confirmed by the appellate court, we modify the sentence to

that of life imprisonment with actual period of 25 years,

without any benefit of remission.  It is further made clear

that  sentences  imposed  for  all  offences  shall  run

concurrently.

....................J. [S.A. Bobde]

....................J. [L. Nageswara Rao]

New Delhi ....................J. January 18, 2019 [R. Subhash Reddy]

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