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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1419-1420 of 2013

Rajkumar          …Appellant

Versus

State of M.P.                    …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment and order dated 27.6.2013 passed in Criminal Reference No.  

01 of 2013 and Criminal Appeal No. 397 of 2013 passed by the High  

Court of Madhya Pradesh at Jabalpur affirming the conviction of the  

appellant under Sections 376 and 450 of the Indian Penal Code, 1860  

(hereinafter referred to as the `IPC’) as well as confirming the death  

sentence awarded for the offence  under Section 302 IPC by the trial

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court vide judgment and order dated 5.2.2013 passed in Sessions Trial  

No. 20 of 2013.

2. Facts and circumstances giving rise to these appeals as per the  

prosecution are that:

A. On 26.12.2012, the appellant, aged 32 years, came to the house  

of his neighbour Iknis Jojo (PW.1) and stayed with his four children  

as  Iknis  Jojo  (PW.1)  and  his  wife  Albisiya  had  gone  to  irrigate  

agricultural fields in the night.  The appellant was on visiting terms  

with  the  family  and  the  children  used  to  call  him  “Mama”  i.e.  

maternal uncle.  On the said night, he had taken liquor and meals in  

the complainant’s house and when retiring for the night, the appellant  

asked the prosecutrix Gounjhi,  aged 14 years not to sleep with her  

three siblings i.e. Sushma, Sanchit and Aric,  rather to sleep at some  

distance from them.  Around midnight, he raped prosecutrix Gounjhi.  

While  committing  rape,  he  caused  some  grievous  injuries  and  

consequently she died. The incident was witnessed by Sanchit (PW.2),  

brother of the prosecutrix, however, out of fear, he could not raise any  

hue and cry.  After committing the crime, the appellant left the place  

of occurrence.  In the morning, Iknis Jojo (PW.1) alongwith his wife  

Albisiya came from their fields and found the children sleeping.  They  

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woke  them  up  and  also  tried  to  wake  the  prosecutrix  when  they  

realised that she was dead. Sanchit (PW.2) narrated the incident that  

had occurred in the night.   

B. Iknis Jojo (PW.1) immediately went to the police station and  

lodged the complaint, on the basis of which Crime No. 294 of 2012  

was registered for the offence under Sections 302 and 450 IPC.  Shri  

K.S.  Thakur,  Inspector  of  Police,  Police  Station:  Nainpur,  District  

Mandla, Madhya Pradesh started the investigation.  He came to the  

spot,  recovered  the  dead  body,  prepared  the  Panchnama,  also  

recovered the blackish brown colour purse and clothes lying near the  

place of occurrence.   Some coins and a small packet of tobacoo were  

also recovered. Some hair were found lying near the dead body of the  

prosecutrix and one sky blue coloured shawl was also recovered from  

the place of occurrence which had blood stains and some other kind of  

stains at various places.  The earth of that place having some fluid  

material  thereon  was  also  recovered.   The  investigating  officer  

prepared the site plan in presence of the witnesses and dead body of  

the  prosecutrix  was  sent  for  postmortem  and  the  appellant  was  

arrested.    

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C.  Dr. Surendra Barkare (PW.6) alongwith lady Dr. (Smt.) Prahba  

Pipre  (PW.7)  conducted  the  postmortem  of  the  prosecutrix  and  

submitted the report.  As per the postmortem report, rape had been  

committed upon the deceased and, thus, Sections 376 and 511 IPC  

were also added in the case.   

D. After  taking  permission  from  the  Judicial  Magistrate,  the  

specimen blood of the appellant was obtained to conduct his DNA  

finger printing which was sent for analysis to State Forensic Science  

Laboratory, Sagar.  All the materials sent for chemical analysis were  

analysed and the report was submitted and on the basis of which the  

chargesheet  was filed and the appellant  was put  to trial.  Appellant  

denied his involvement in the offence, thus trial commenced.   

E. Dr.  Surendra  Barkare  (PW.6)  deposed  and  proved  the  

postmortem report and deposed that the prosecutrix died of asphyxia  

as a result of strangulation and her death was homicidal in nature.  

F. Iknis Jojo (PW.1), father of the deceased, deposed while giving  

the version as mentioned in the FIR and admitted that the appellant  

used to come to his house occasionally and he was referred to by his  

children  as  “Mama”  and  sometimes  he  used  to  stay  in  the  house  

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though his house was only half a kilometer away from his house and  

he was already married having a child.  

G. Sanchit (PW.2), a 10 years old boy, supported the case of the  

prosecution and deposed that his “Mama” had come to their house. He  

consumed  liquor  and  was  served  rice  and  water  by  the  deceased.  

Appellant asked the prosecutrix to sleep at some distance from her  

siblings.   The appellant  slept  with  other  three  children  and it  was  

about 11-12 in the night that he heard the shrieks of his sister and saw  

that the appellant had pressed her neck and he got so much scared that  

he could not even raise the voice.  All this was disclosed by PW.2 to  

his parents in the morning on their returning from the fields.   

H. Dr. (Smt.) Prabha Pipre (PW.7) deposed about the conduct of  

the postmortem of the body of the deceased alongwith Dr. Surendra  

Barkare (PW.6).  They further  deposed that  hymen of  the deceased  

was torn and blood was oozing out  from her  private  parts.   Some  

blood was present in the cavity of the private part and some blood was  

also present in the cavity of her uterus. Her vagina accommodated one  

finger and it accommodated two fingers with difficulty.  On the basis  

of the above, she had opined that deceased had been subjected to rape  

before murder.  

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I. The  deceased  was  14  years  of  age  and  a  student  in  sixth  

standard which was proved from the school register and the statement  

of her father Iknis Jojo (PW.1). Her age has also been mentioned in  

the FIR as 14 years.  So far as medical evidence is concerned, it was  

mentioned that the deceased prosecutrix was about 16 years of age.   

J. So far as the analysis report of the material sent and the DNA  

report is concerned, it revealed that semen of the appellant was found  

on the vaginal  swab of the deceased.   The clothes of the deceased  

were also found having appellant’s semen spots.  The hair which were  

found  near  the  place  of  occurrence  were  found  to  be  that  of  the  

appellant.  

K. The trial court after considering the entire evidence on record,  

recorded the following findings of fact:  

(i) The evidence of Sanchit Jojo (PW.2), a child witness was  

worth placing reliance and it duly supported the case of  

the prosecution;

(ii) His deposition corroborates medical evidence;

(iii) The hymen of the deceased was found torn;

(iv) Semen of the appellant was found on the slide prepared  

from the vaginal swab of the prosecutrix as proved by the  

DNA report;

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(v) The shawl of the deceased was also found having semen  

stains which were of the appellant;

(vi) The hair  found  near  the  body  of  the  prosecutrix  were  

found to be of the appellant as per the DNA report;  

(vii) The appellant did not take any defence in his statement  

under Section 313 Cr.P.C. except that he had been falsely  

implicated by the family of the deceased at the instance  

of  the  police  and  that  the  appellant  did  not  lead  any  

evidence in his defence.   

L. Considering all the aforementioned circumstances and evidence  

of  the  relationship  with  the  family  of  the deceased,  the  trial  court  

treated it to be a case of extreme culpability and a rarest of rare case  

awarding death sentence under Section 302 IPC with a fine of Rs.  

3,000/-. Under Section 376 IPC, the appellant was awarded rigorous  

life  imprisonment  and  a  fine  of  Rs.3,000/-;  in  default  of  making  

payment on both counts, sentence of one year on each count was also  

awarded.   For  the  offence  punishable  under  Section  450  IPC,  the  

appellant was awarded 10 years rigorous imprisonment with a fine of  

Rs.3,000/-  and  in  default,  a  rigorous  imprisonment  for  one  year.  

However,  it  was  directed  that  all  the  sentences  would  run  

concurrently.  

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M.  The  trial  court  made  a  reference  to  the  High  Court  for  

affirming the death sentence.   The appellant,  being aggrieved,  also  

preferred  an  appeal  against  his  conviction  and sentence  before  the  

High Court.  The appeal and the reference were heard together.   

N. The  High  Court  recorded  the  same  findings  after  re-  

appreciation of evidence and came to the conclusion that prosecutrix  

was  14  years  of  age  at  the  time  of  incident.  The  appellant  was  

admittedly  present  in  the  house  but  he  furnished  no  explanation  

whatsoever  about  the  injuries  received  by  the  deceased.   As  the  

appellant has committed rape upon an innocent and helpless child and  

then killed her brutally, it has shocked not only the judicial conscience  

but  even  the  conscience  of  society  as  well.  The  High  Court  also  

recorded  the  finding  that  the  offence  had  been  committed  in  pre-

mediated manner.  The death sentence was affirmed and the appeal  

was dismissed.  

Hence, these appeals.

3. Ms.  A.  Sumathi,  learned counsel  appearing on behalf  of  the  

appellant, has submitted that the appellant had falsely been implicated  

by the family members of the deceased at the instance of the police.  

There is no eye-witness in the case.  Sanchit Jojo (PW.2),  brother of  

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the prosecutrix, is a child witness and cannot be relied upon simply  

for the reason that after seeing the incident and knowing well that his  

sister  had  been  killed,  he  did  not  raise  any  alarm  even  after  the  

accused had left the spot.  Even in the morning, he did not tell his  

parents when they came back from the agricultural fields as what had  

happened. Therefore, the courts below have committed a grave error  

while placing reliance upon the deposition of the child witness.  It is a  

clear cut case of circumstantial evidence for which the prosecution  

could not furnish explanation  on various counts and it cannot be held  

that appellant had committed rape upon prosecutrix and, subsequently,  

killed her. The facts and circumstances of the case did not warrant  

death sentence as awarded by the courts below, and hence, the appeals  

deserve to be allowed.  

4. Per contra,  Ms. Vanshaja Shukla, learned counsel appearing on  

behalf of the State, has vehemently opposed the appeals contending  

that the appellant had a pre-meditated intention to commit the offence  

and that  is  why he asked the prosecutrix to sleep separately.   The  

chemical analysis report as well as the DNA report make it crystal  

clear  that  no  other  person except  the  appellant  had committed  the  

offence and the manner in which the offence had been committed and  

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the gravity of the offence warrant nothing less than the death sentence  

and, thus, the appeals lack merit and are liable to be dismissed.  

5. We have considered the rival submissions made by the learned  

counsel for the parties and perused the records.  

6. We have been taken through the impugned judgments rendered  

by  the  High  Court  as  well  as  the  trial  court  and  the  evidence  on  

record.  In  view of  the  concurrent  findings  of  fact  recorded by the  

courts below, particularly in respect of the DNA report to the extent  

that the semen of the appellant was found in the vagina swab of the  

prosecutrix and that she died of asphyxia caused by strangulation, we  

affirm the findings of fact recorded by the courts below.  

7. Sanchit Jojo (PW.2), who is an eye-witness, was a child as he  

was 10 years of age at the time of incident. The courts below have  

found him worth reliance as he has understood the questions put to  

him and he was able  to answer  the same.  The issue  regarding the  

admissibility of evidence of a child witness is no more res intergra.  

8. It  is  a  settled  legal  proposition  of  law that  every  witness  is  

competent to depose unless the court considers that he is prevented  

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from understanding the question put to him, or from giving rational  

answers  by reason of  tender  age or  extreme old age  or  disease  or  

because of his mental or physical condition. Therefore, a court has to  

form an opinion from the circumstances as to whether the witness is  

able to understand the duty of speaking the truth, and further in case  

of a child witness, the court has to ascertain that the witness might  

have not been tutored. Thus, the evidence of a child witness must be  

evaluated more carefully and with greater circumspection because a  

child is susceptible to be swayed by what others tell him.  The trial  

court must ascertain as to whether a child is able to discern between  

right or wrong and it may be ascertained only by putting the questions  

to him.  

9. This Court in  State of Madhya Pradesh v. Ramesh & Anr.,  

(2011) 4 SCC 786, after considering a large number of its judgments  

came to the conclusion as under:  

“In  view  of  the  above,  the  law  on  the  issue  can  be   summarized to the effect that the deposition of a child   witness  may  require  corroboration,  but  in  case  his   deposition inspires the confidence of the court and there   is  no embellishment  or improvement  therein,  the court   may  rely  upon  his  evidence.  The  evidence  of  a  child   witness  must  be evaluated more carefully  with greater   circumspection  because  he  is  susceptible  to  tutoring.   Only in case there is evidence on record to show that a   

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child has been tutored, the Court can reject his statement   partly or fully. However, an inference as to whether child   has been tutored or not, can be drawn from the contents   of his deposition.”  

(See  also:  Suryanarayana v.  State  of  Karnataka, AIR  2001  SC  

482).

10. In view of the above, as the courts below have found the child  

witness worth reliance, we do not see any cogent reason to take a view  

contrary to the same.  

11. Admittedly,  the  appellant  did  not  take  any  defence  while  

making his statement under Section 313 Cr.P.C., rather boldly alleged  

that the family of the deceased had roped him falsely at the instance of  

the police. However, appellant could not reveal as for what reasons  

the police was by any means inimical to him.  

12. The  accused  has  a  duty  to  furnish  an  explanation  in  his  

statement  under  Section  313  Cr.P.C.  regarding  any  incriminating  

material that has been produced against him. If the accused has been  

given the freedom to remain silent during the investigation as well as  

before the court, then the accused may choose to maintain silence or  

even remain in complete denial when his statement under Section 313  

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Cr.P.C. is being recorded. However, in such an event, the court would  

be  entitled  to  draw an  inference,  including  such  adverse  inference  

against the accused as may be permissible in accordance with law.  

(Vide:  Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC  

1357; Munish Mubar v. State of Haryana, AIR 2013 SC 912; and  

Raj Kumar Singh  alias Raju @ Batya v. State of Rajasthan, AIR  

2013 SC 3150).  

In the instant case, as the appellant did not take any defence or  

furnish any explanation as to any of the incriminating material placed  

by the trial  court,  the  courts  below have rightly drawn an adverse  

inference against him.  

13. The appellant has not denied his presence in the house on that  

night. When the children were left in the custody of the appellant, he  

was bound to explain as under what circumstances Gounjhi died.  

14. In Prithipal Singh & Ors. v. State of Punjab & Anr., (2012)  

1 SCC 10, this Court relying on its earlier judgment in State of W.B.  

v. Mir Mohammad Omar, AIR 2000 SC 2988, held as under:

“….. if fact is especially in the knowledge of any person,   then  burden  of  proving  that  fact  is  upon  him.  It  is   impossible  for  the  prosecution  to  prove  certain  facts   particularly within the knowledge of the accused. Section   

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106  is  not  intended  to  relieve  the  prosecution  of  its   burden  to  prove  the  guilt  of  the  accused  beyond  reasonable doubt. But the section would apply to cases   where  the  prosecution  has  succeeded  in  proving  facts   from  which  a  reasonable  inference  can  be  drawn   regarding the existence of certain other facts, unless the   accused  by  virtue  of  his  special  knowledge  regarding   such facts,  failed to offer any explanation which might   drive the court to draw a different inference. Section 106   of  the  Evidence  Act  is  designed  to  meet  certain   exceptional cases, in which, it would be impossible for   the  prosecution  to  establish  certain  facts  which  are   particularly within the knowledge of the accused.”  

(See  also:  Neel  Kumar  alias  Anil  Kumar v.  State  of  Haryana,  

(2012) 5 SCC 766; and Gian Chand & Ors. v. State of Haryana,  

AIR 2013 SC 3395).

15. This  Court  in  Prajeet  Kumar  Singh  v.  State  of  Bihar,  

(2008) 4 SCC 434 had confirmed the death sentence awarded by the  

High  Court  observing  that  accused  had  been  living  as  a  family  

member of the victim and had been provided with shelter and meals,  

despite  which  he  committed  ghastly  and  brutal  murder  of  three  

defenceless children without any provocation.  

16. In  a  similarly  situated  case  in  Kamta  Tiwari  v.  State  of  

M.P.,  AIR 1996 SC 2800, this Court found that the accused was  

close to the family of the deceased.  The deceased and her  siblings  

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used to call the accused uncle and her closeness with the appellant  

encouraged her to trust him and when the accused had committed  

the  rape  and gruesome murder  causing  numerous  injuries  on  her  

body, this Court found it to be a fit case for awarding death sentence.  

The Court observed as under:    

“When an innocent hapless girl of 7 years was subjected   to  such barbaric  treatment  by a person who was in  a   position  of  her  trust  his  culpability  assumes  the   proportion of extreme depravity and arouses a sense of   revulsion in the mind of the common man. In fine, the   motivation  of  the  perpetrator,  the  vulnerability  of  the   victim, the enormity of the crime, the execution thereof   persuade us to hold that this is a “rarest of rare” cases   where the sentence of death is eminently desirable  not   only  to  deter  others  from  committing  such  atrocious   crimes but also to give emphatic expression to society’s   abhorrence of such crimes.”

(See also: Dhananjoy Chatterjee @ Dhana v. State of W.B., (1994)  

2 SCC 220)

17. However, in  Bantu  @ Naresh Giri v. State of M.P., AIR  

2002 SC 70,  while dealing with the case of rape and murder of a six  

years  old girl,  this  Court  found that  the case was not  one of  the  

'rarest of rare case’. The Court noticed that, accused was less than 22  

years  at  the  time  of  commission  of  the  offence,  there  were  no  

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injuries on the body of the deceased and the death probably occurred  

as a result of gagging of the nostril by the accused. Thus, the Court  

while noticing that the crime was heinous, commuted the sentence of  

death to one of life imprisonment.

18. In Mohinder Singh v. State of Punjab, AIR 2013 SC 3622,  

this Court dealt with the case of death sentence observing:   

“In  this  context,  we  are  only  reminded  of  the  Tamil   proverb “ ”  which  means  in   English  “when  the  fence  eats  the  crops”.  When  the   father  himself  happens  to  be  the  assailant  in  the   commission of such beastly crime, one can visualise the   pathetic  situation  in  which  the  girl  would  have  been   placed  and  that  too  when  such  a  shameless  act  was   committed in the presence of her own mother. When the   daughter  and  the  mother  were  able  to  get  their   grievances redressed by getting the appellant convicted   for the said offence of rape one would have in the normal   course  expected  the  appellant  to  have  displayed  a   conduct  of  remorse.  Unfortunately,  the  subsequent   conduct  of  the  appellant  when  he  was  on  parole   disclosed that he approached the victims in a far more   vengeful manner by assaulting the hapless victims which   resulted in filing of an FIR once in the year 2005 and   subsequently when he was on parole in the year 2006.   The monstrous mindset of the appellant appears to have   not  subsided  by  mere  assault  on  the  victims  who  ultimately displayed his extreme inhuman behaviour by   eliminating his  daughter  and wife  in  such a gruesome   manner in which he committed the murder by inflicting   the injuries on the vital parts of the body of the deceased   and that too with all vengeance at his command in order   to  ensure  that  they  met  with  instantaneous death.  The   

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nature of injuries as described in the post-mortem report   speaks  for  itself  as  to  the  vengeance  with  which  the   appellant attacked the hapless victims. He was not even   prepared to spare his younger daughter viz. PW 2 who,   however, escaped the wrath of the appellant by bolting   herself inside a room after she witnessed the grotesque   manner in which the appellant took away the life of his   wife and daughter.”

However, the Court concluded that applying various principles  

culled out from earlier judgments of this Court, the case did not fall  

within the category of  “rarest  of  rare  case”,  though it  called for  a  

stringent punishment.

19. The extreme penalty of death need not be inflicted except in  

gravest  cases  of  extreme  culpability.  Before  opting  for  the  death  

penalty the circumstances of the offender also require to be taken into  

consideration alongwith the circumstances of the crime for the reason  

that life imprisonment is the rule and death sentence is an exception.  

The penalty of death sentence may be warranted only in a case where  

the court comes to the conclusion that imposition of life imprisonment  

is totally inadequate having regard to the relevant circumstances of the  

crime. The balance sheet of aggravating and mitigating circumstances  

has to be drawn up and in doing so, the mitigating circumstances have  

to  be  accorded  full  weightage  and  a  just  balance  has  to  be  struck  

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between the aggravating and mitigating circumstances before option is  

exercised.  

Thus, it is evident that for awarding the death sentence, there  

must be existence of aggravating circumstances and the consequential  

absence of mitigating circumstances.  As to whether death sentence  

should be awarded, would depend upon the factual scenario of the  

case in hand.  

20. A three-Judge Bench of this Court in  Swami Shraddananda  

@ Murali  Manohar  Mishra  v.  State of  Karnataka, AIR 2008 SC  

3040, wherein considering the facts of the case, the Court set aside the  

sentence of death penalty and awarded 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.   

21. Thus, taking into consideration the aforesaid judgments, we are  

of the view that in spite of the fact that the appellant had committed a  

heinous crime and raped an innocent, helpless and defenceless minor  

girl who was in his custody, he is liable to be punished severely but it  

is  not  a case which falls within a category of  rarest  of  rare  cases.  

Hence, we set aside the death sentence and award life imprisonment.  

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The  appellant  must  serve  a  minimum of  35  years  in  jail  without  

remission,  before  consideration  of  his  case  for  pre-mature  release.  

However, it would be subject to clemency power of the Executive.

The appeals stand disposed of.  

Before we part, we would like to note with appreciation that in  

the instant  case investigation and all  judicial  proceedings upto this  

Court  stood  concluded  in  less  than  8  months  from  the  date  of  

incidence. Thus, it is an exemplar of expeditious justice in country of  

chronic delay by smooth functioning of investigating agency, courts  

and the members of legal fraternity.  We expect such prompt disposal  

of cases specifically in cases of such grave nature.

…..………….................. J.  (Dr. B.S. CHAUHAN)  

…..………….................. J.  (M.Y. EQBAL)  

NEW DELHI FEBRUARY 25, 2014

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