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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.300-301 OF 2011

Sunder @ Sundararajan …. Apellant

Versus

State  by Inspector of Police. …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. On  27.7.2007  Suresh  aged  7  years,  who  lived  with  his  mother  

Maheshwari  (PW1)  at  Karkudal  village  in  Vridhachalam  Taluk,  left  his  

residence in the morning as usual,  at about 8 a.m. to attend his school at  

Vridhachalam.  Suresh was a class II student at Sakthi Matriculation School at  

Vridhachalam.  Each morning, he along with other students from the same  

village, would leave for school, in a school van at about 8.00 a.m.  The same  

school van would bring them back in the afternoon at about 4.30 p.m.  On  

27.7.2009, Suresh did not return home.  Maheshwari (PW1) his mother got  

worried  and  made  inquiries.   She  inquired  from  Kamali  (PW2),  and  from  

another student from the same village, who used to travel  to school in the  

same van with Suresh.  Kamali (PW2) told Maheshwari (PW1) that a man was  

waiting  alongside  a motorcycle  when the  school  van returned to  Karkudal

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village  on  27.7.2009.   The  man  informed  Suresh  that  his  mother  and  

grandmother were not well.  According to Kamali (PW2), the man told Suresh,  

that he had been asked by Maheshwari (PW1) to bring Suresh to the hospital.  

Based on the aforesaid assertions, Suresh had accompanied the man on his  

motorcycle.   After  having  inquired  from Kamali  (PW2),  Maheshwari  (PW1)  

sought  information  from  another  student  Malai,  but  could  not  gather  any  

positive information from her.  Thereafter, she was informed by Kurinji Selvan  

(PW3) belonging to the same village, that he had seen Suresh disembarking  

from the Sakthi school van on 27.7.2009 at about 4.30 p.m.  He also told her,  

that a man standing alongside a motorcycle, had called out to Suresh and had  

taken Suresh along with him on his motorcycle.  Kurinji Selvan (PW3) advised  

Maheshwari (PW1) to approach the police.  Maheshwari (PW1) accordingly  

proceeded to Police Station, Kammapuram, to register a complaint.  The said  

complaint  was  registered  at  7  p.m.  on  the  date  of  occurrence,  i.e.,  on  

27.7.2009 itself.  Based thereon, Crime no.106 of 2009 was registered under  

Section 366 of the Indian Penal Code.   

2. At about  9.30 p.m. on the same day,  i.e.,  on 27.7.2009 Maheshwari  

(PW1) received a call on her mobile phone.  The caller identified himself as  

Shankar.   The caller demanded a ransom of Rs.5 lakhs for the release of  

Suresh.  Immediately after the receipt of the aforesaid call, Maheshwari (PW1)  

again rushed to the Police Station Kammapuram, and informed the Station  

House Officer about the call received by her.   

3. The  investigating  officer  called  Kasinathan  (PW13),  the  then  Village  

Administrative  Officer  of  village  Karkudal,  Taluka  Vridhachalam,  to  the

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Vridhachalam Police Station.   Having taken permission from the Tehsildar,  

Kasinathan (PW13) and his assistant went to Vridhachalam.  From there, they  

went to the house of the accused, and in the presence of Kasinathan (PW13),  

the two accused were apprehended.  In the presence of Kasinathan (PW13),  

the accused made confessional statements, leading to the recovery of three  

mobile  phone  sets,  two  of  which  had  sim  cards.   The  accused  also  

acknowledged, having strangulated Suresh when ransom was not paid for his  

release.  The accused also confessed, that they had put the dead body of  

Suresh in a gunny bag, and thereafter, had thrown it in the Meerankulam tank.  

Based on the aforesaid confessional statement, in the presence of Kasinathan  

(PW13), and on the pointing out of the accused, the dead body of Suresh was  

retrieved by personnel belonging to the fire service squad.  The dead body of  

Suresh was found in a gunny bag which had been fished out of the above-

mentioned tank.  The accused also made statements to the police, whereupon  

the school bag, books and slate belonging to the deceased Suresh came to  

be  recovered  from  the  residence  of  the  accused,  in  the  presence  of  

Kasinathan (PW13).   

4. During  the  course  of  the  investigation  emerging  out  of  the  mobile  

phones recovered from the accused, the police identified Saraswathi (PW8),  

who affirmed that she had received a phone call from a person who called  

himself Shankar, on 27.7.2009 at about 9 p.m.  She also disclosed, that the  

caller had enquired from her about the phone number of Maheshwari (PW1).  

Saraswathi (PW8) had required the caller, to ring her up after sometime.  She  

had received another call from Shankar and had furnished the mobile phone

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number of Maheshwari (PW1) to him.  Consequent upon the gathering of the  

above  information,  the  accused  were  charged  under  Sections  364-A  (for  

kidnapping  for  ransom),  302  (murder)  and  201  (for  having  caused  

disappearance of evidence) of the Indian Penal Code.  The trial of the case  

was committed to the Court of Session, whereupon, the prosecution examined  

19 prosecution witnesses.  The prosecution also relied on 18 exhibits and 10  

material objects.  After the statements of the prosecution witnesses had been  

recorded, the statements of the accused were recorded under Section 313 of  

the  Code  of  Criminal  Procedure.   Despite  having  been  afforded  an  

opportunity, the accused did not produce any witness in their own defence.

5. On  the  culmination  of  the  trial,  the  accused-appellant  Sunder  @  

Sunderajan was found guilty and convicted of the offences under Sections  

364-A, 302 and 201 of the Indian Penal Code by the Sessions Judge, Mahila  

Court,  Cuddalore.   For  the  first  two  offences,  the  accused-appellant  was  

awarded the death penalty along with fine of Rs.1,000/- each.  For the third  

offence, the accused-appellant was awarded 7 years rigorous imprisonment  

along with a fine of Rs.1,000/-.  Vide RT no.2 of 2010, the matter was placed  

before the High Court of Judicature at Madras (hereinafter referred to as, the  

High Court), for confirmation of the death sentence imposed on the accused-

appellant.   The  accused-appellant  independently  of  the  aforesaid,  filed  

Criminal Appeal no.525 of 2010 before the High Court, for assailing the order  

of his conviction.  Vide its common judgment dated 30.9.2010, the High Court  

confirmed  the  death  sentence  imposed  on  the  accused-appellant  and  

simultaneously dismissed the appeal  preferred by Sunder @ Sundararajan.

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Thus viewed, the judgment rendered by the Sessions Judge, Mahila Court at  

Cuddalore  dated  30.7.2010  was  affirmed  by  the  High  Court  vis-à-vis  the  

accused-appellant.  

6. The Court  of  Session acquitted Balayee,  accused no. 2.   It  is  not  a  

matter of dispute before us, that the acquittal of Balayae, was not contested  

by the prosecution by preferring any appeal.  It is therefore apparent, that for  

all intents and purposes accused no.2 stands discharged from the matter on  

hand.

7. It is not necessary to deal with the statements of all the witnesses, in so  

far as the instant controversy is concerned.  Even though the prosecution had  

rested its case, on circumstantial  evidence alone, it  would be necessary to  

refer to the statements of a few witnesses so as to deal with the submissions  

advanced on behalf of the accused-appellant.  The deposition of the relevant  

witnesses is accordingly being summarized hereinafter.

8. Maheshwari  (PW1) was the mother of the deceased Suresh.   It  was  

Maheshwari  (PW1)  who had lodged the  First  Information  Report  at  Police  

Station, Kammapuram, on 27.7.2009.  In her statement before the trial court,  

she asserted that she had four children, three daughters and one son.  Suresh  

was her only son.  She deposed, that she was running all domestic affairs of  

her household at Village Karkudal in Taluk Vridhachalam by herself, as her  

husband had gone abroad to earn for the family.  She affirmed, that she was  

also engaged in agriculture.   She also asserted,  that  her  son Suresh was  

studying  in Class II  at  the Sakthi  Matriculation School,  Vridhachalam.   He  

used to go to school, by the school van, and used to return along with other

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children from school, at about 4.30 p.m.  As usual, on 27.7.2009, he had gone  

to school in the school van at about 8.00 a.m. but since he had not returned at  

4.30 p.m., she had gone out to search for him.  She had enquired from other  

students  who  used  to  travel  in  the  same school  van  along  with  her  son.  

Kamali (PW2) informed her that her son Suresh had got down from the school  

van on 27.7.2009, in her company.  Kamali (PW2) also informed her, that as  

soon as Suresh got down from the school van on 27.7.2009, the accused-

appellant who was standing near the neem tree along side his motorcycle,  

called Suresh by his name, and told him that his mother and grandmother  

were ill, and had required him to bring Suresh to them, on his motorcycle.  At  

the  man’s  asking,  according  to  Kamali  (PW2),  Suresh  sat  on  the  man’s  

motorcycle,  and was taken away.   Maheshwari  (PW1) then enquired  from  

Malai,  another student who used to travel by the same school van.  Malai,  

however,  did  not  remember  about  the  presence  of  Suresh.   Finally,  

Maheshwari (PW1) was told by Kurinji  Selvan (PW3), a co-villager living in  

Karkudal village, that he had seen Suresh getting down from the school van  

and being taken away by a man on his motorcycle.   Kurinji  Selvan (PW3)  

advised Maheshwari (PW1), to report the matter to the police.  Based on the  

aforesaid inputs, Maheshwari (PW1) deposed, that she had immediately gone  

to Police Station, Kammapuram, and had lodged a report at 7.00 p.m.  Having  

returned to her village, Maheshwari (PW1) claims to have received a call on  

her mobile phone at about 9.30 p.m.  According to her,  the caller was the  

accused-appellant.  The accused-appellant demanded a sum of Rs.5,00,000/-  

for the safe release of her son Suresh.  Consequent upon the receipt of the

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aforesaid phone call, Maheshwari (PW1) deposed, that she had returned to  

the  Police  Station,  Kammapuram,  to  apprise  the  police  of  the  aforesaid  

development.  According to Maheshwari (PW1), the police informed her on  

30.7.2009, that the body of her son had been recovered from a lake and had  

been brought to Vridhachalam Hospital.  In her statement, she affirmed having  

identified the clothes, shoes and socks as also neck tie of her son Suresh.  

She also identified his school bag which had the inscription ‘JAYOTH’.  She  

also identified his books as also the black colour slate having a green colour  

beeding around it, as that of her son Suresh.  She also identified the body of  

her son when she set her eyes on him at Vridhachalam Hospital.  During her  

cross-examination, she deposed that she had not approached Kurinji Selvan  

(PW3).  It was Kurindi Selvan (PW3), who had approached her on seeing her  

crying.  When she disclosed to Kurinji Selvan (PW3) about her missing son,  

he had informed her that he had seen her son Suresh disembarking from the  

school van whereafter, Suresh had gone away with a man on a motorcycle.

9. Kamali  entered  appearance  before  the  trial  court  as  PW2.   She  

asserted  that  she  was  (at  the  time  of  her  deposition)  studying  in  the  6th  

standard  at  Sakthi  Matriculation  School,  Vridhachalam.   She affirmed  that  

Suresh, the deceased, was known to her.  She deposed that on 27.7.2009,  

she  had  gone  to  her  school  in  the  school  van,  wherein  there  were  other  

children from the village including Suresh.  She also deposed that she along  

with Suresh returned to Karkudal Village on 27.7.2009, at about 3.00 p.m. in  

the school van.  Suresh had got down from the school van, along with the  

other children.  When the van had arrived at the village, she had seen a man

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standing along side a motorcycle.  After Suresh got down from the school van,  

the  man  beckoned  at  Suresh.   He  informed  Suresh,  that  his  mother  and  

grandmother  were  ill,  and  that  Suresh’s  mother  had  asked  him,  to  bring  

Suresh  to  the  hospital.   She deposed  that  when she reached  her  house,  

Maheshwari (PW1) had inquired about the whereabouts of her son, from her.  

She had informed Maheshwari (PW1) the factual position as narrated above.  

She also asserted, that she was questioned by the police during the course  

whereof she had informed the police, that she could identify the accused.  She  

acknowledged  that  an  identification  parade  was  conducted  by the  Judicial  

Magistrate at Cuddalore Central Prison, where she had identified the accused-

appellant,  namely,  the  man  who  had  taken  Suresh  on  the  motorcycle  on  

27.7.2009, when they had returned from school.

10. Kurinji Selvan deposed before the trial court as PW3.  He stated that  

Maheshwari (PW1), Kamali (PW2), as also the deceased Suresh, were known  

to him.  He stated that on 27.7.2009 at about 4.30 p.m. when he was going  

towards his paddy field on his motorcycle, the Sakthi School van had dropped  

the school children of his village, at the corner of the river path.  He had also  

stopped his motorcycle, there.  He had seen the accused-appellant standing  

near the neem tree along side a motorcycle.  He identified the nature, as also,  

the colour of the clothes worn by the accused-appellant.  He confirmed, that  

the accused–appellant  had called out  to Suresh by his  name,  whereupon,  

Suresh had gone up to him.  He deposed, that he had seen Suresh being  

taken away by the man, on his motorcycle. He further deposed, that when he  

was  returning  from  his  paddy  field  at  about  5.30  p.m.,  he  had  seen

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Maheshwari (PW1) weeping.  When he enquired from her, she told him, that  

her son was missing.  Kurinji Selvan (PW3) affirmed that he had informed her,  

that  a  man  had  taken  her  son  away  on  a  motorcycle.   He  also  advised  

Maheshwari (PW1) to lodge a report with the police.  He further deposed, that  

the body of a child was recovered on 30.7.2009 and he was informed about  

the same at about 8.00 a.m. The body had been recovered from Meerankulam  

tank  in  Vuchipullaiyar  Vayalapadi  village.   Having  received  the  aforesaid  

information, he had proceeded to the Meerankulam tank where he identified  

Suresh, to the Inspector.  He further deposed, that an identification parade  

was conducted at the Cuddalore Central Prison, in presence of the Judicial  

Magistrate.  He affirmed, that he had identified the accused-appellant as the  

person  who  had  taken  Suresh,  when  Suresh  had  disembarked  from  the  

school  van  on  27.7.2009.   He  also  asserted,  that  he  had  identified  the  

motorcycle, when he was shown two motorcycles, as the one on which the  

accused-appellant had taken Suresh away on 27.7.2009.   

11. The statement of M. Santhanam was recorded as PW6.  He affirmed  

that he was the Correspondent and Principal of Sakthi Matriculation School.  

He also affirmed that Suresh was studying in his school in the 2nd standard.  

He  confirmed  that  Suresh  had  attended  the  school  on  27.7.2009.   He  

produced the attendance register, wherein the presence of Suresh was duly  

recorded.

12. Saraswathi (PW8) appeared before the trial court and deposed, that on  

27.7.2009,  she  had  received  a  call  on  her  mobile  phone  bearing  

No.9943020435 at about 9.00 p.m.  The caller identified himself as Sankar

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and asked for the phone number of Maheshwari (PW1).  She stated that she  

had informed the caller, to ring her after a little while, by which time she would  

retrieve  the  phone  number  of  Maheshwari  (PW1).   Accordingly,  the  caller  

again spoke to her on her mobile phone, whereupon, she had conveyed the  

phone number of Maheshwari (PW1), to him.  

13. A. Bashir, Judicial Magistrate No.1 appeared before the trial court as  

PW10.  He deposed that he had gone to the Cuddalore Central  Prison on  

25.8.2009  to  conduct  the  identification  parade.   He  had  taken  his  office  

assistant  along  with  him.   He  had  selected  co-prisoners  similar  to  the  

accused-appellant to participate in the identification parade.  Persons selected  

by him were of the same height, weight, colour and beared.  Out of these eight  

persons selected by him, both Kamali (PW2) and Kurinji Selvan (PW3) had  

identified the accused-appellant, in three different combinations.  

14. Sunil (PW11), working as legal officer of the Vodafone Company, during  

the  course  of  his  deposition  before  the  trial  court  affirmed,  that  he  was  

required by the Inspector  of  Police,  Vridhachalam,  to provide him with the  

details of Vodafone cell phone numbers 9946205961 and 9943020435 for the  

period  from  25.7.2009  to  28.7.2009.   He  affirmed  that  he  had  taken  the  

aforesaid details from the computer and given them to the Inspector of Police.  

He confirmed that three calls had been made from sim number 9946205961,  

upto  9.39  p.m.  on  27.7.2009.   He  also  affirmed,  that  phone  number  

9943020435 was in the name of Saraswathi (PW3).

15. Dr.  Kathirvel  appeared  before  the  trial  court  as  PW12.   He  had  

conducted the post mortem on the dead body of Suresh on 30.7.2009.  The

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dead  body  was  identified  by  the  police  Constable,  in  the  mortuary.   He  

asserted that the body was in a decomposed state.  According to his analysis,  

the child had died within 36 to 48 hours prior to the post mortem examination.  

According to the opinion tendered by him, suffocation was the cause of the  

death of the child.  And that, the child, in his opinion, had died prior to his  

being drowned in the water.  

16. Kasinathan (PW13), the Village Administrative officer, Karkudal, while  

appearing before the trial court confirmed, that he was known to the accused-

appellant.   He  deposed  that  on  30.7.2009,  he  was  summoned  from  his  

residence  by  the  Inspector  of  Police,  Vridhachalam  at  about  4.30  p.m.  

Thereupon, he had gone to the Vridhachalam Police Station.  The Inspector of  

Police had required Kasinathan (PW13) to be a police witness, whereupon, he  

had obtained permission from the Tahsildar, for being a police witness.  He  

was  taken  to  the  house  of  the  accused-appellant  in  a  police  jeep.   They  

reached his house at 7.00 a.m. on 30.7.3009.  As soon as the accused saw  

the police jeep, both of them fled from the spot.  Whilst running away, the  

accused-appellant had fallen down, and thereupon, the police personnel had  

apprehended him.  Women constables had apprehended Balayee (A-2).  The  

accused-appellant  had made a confessional  statement  to the police in the  

presence of  Kasinathan (PW13).   The accused-appellant  had handed over  

three mobile phones to the Police Inspector in his presence.  Only two of the  

said phones had sim cards.  The accused-appellant had also produced the  

motorcycle, on which he had taken away Suresh, when he had got down from  

the school van at village Karkudal on 27.7.2009.  The accused-appellant also

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produced a school bag containing a slate and two books from his residence in  

his  presence.   Kasinathan  (PW13)  admitted  having  signed  the  “mahazar”  

when  recoveries  of  the  aforesaid  articles  were  made  from  the  accused-

appellant on 30.7.2009.  Based on the information furnished by the accused-

appellant,  Kasinathan  (PW13)  acknowledged,  that  he  had  gone  to  the  

Meerankulam tank in Vayalapadi  village,  in  the police jeep,  along with the  

other police personnel.  When the gunny bag containing the dead body of the  

child was retrieved from the tank,  the accused-appellant  had identified the  

same as Suresh.   He had also signed on the “mahazar”  prepared on the  

recovery of the gunny bag, containing the dead body of Suresh.

17. It is not necessary to refer to the statement of other witnesses except  

the fact that the call details produced by Sunil (PW11) indicate that two calls  

were made from the Mobile Phone recovered from the accused-appellant to  

Saraswathi  (PW8).   The said calls were made at  9.22 p.m. and 9.25 p.m.  

respectively.  The call details further indicate that from the same number, a  

call was made to Maheshwari (PW1) at 9.39 p.m.

18. It is on the basis of the aforesaid oral and documentary evidence that  

we shall endeavour to determine the issues canvassed at the hands of the  

learned counsel for the appellant.

19. The  solitary  contention  advanced  by  the  learned  counsel  for  the  

appellant on the merits of the case was, that the prosecution had ventured to  

substantiate the allegations levelled against the appellant only on the basis of  

circumstantial evidence.  It was sought to be pointed out, that in the absence  

of direct evidence, the slightest of a discrepancy, depicting the possibility of

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two views would exculpate the accused of  guilt,  on the basis of  benefit  of  

doubt.  Before dealing with the circumstantial evidence relied upon against the  

appellant, learned counsel invited our attention to the legal position declared  

by this Court, on the standard of proof required for recording a conviction, on  

the basis of circumstantial evidence.  In this behalf, learned counsel for the  

appellant first of all placed reliance on Sharad Birdhichand Sarda Vs. State of   

Maharashtra,  (1984)  4  SCC  116.  It  was  pointed  out,  that  in  the  instant  

judgment  this  Court  laid  down  the  golden  principles  of  standard  of  proof,  

required in a case sought  to be established on the basis  of  circumstantial  

evidence.  In this behalf reliance was placed on the following observations:-

“152.  A close analysis  of  this decision would show that  the following  conditions must be fulfilled before a case against an accused can  be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be  drawn should be fully established.

It  may  be  noted  here  that  this  Court  indicated  that  the  circumstances concerned 'must or should' and not 'may be'  established.  There  is  not  only  a  grammatical  but  a  legal  distinction between 'may be proved' and 'must be or should  be proved as was held by this Court  in Shivaji Sahebrao  Bobade v. State of Maharashtra : 1973CriLJ1783 where the  following observations were made:

Certainly, it is a primary principle that the accused must be  and not merely  may be guilty before a Court can convict,  and the mental distance between 'may be' and 'must be' is  long and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the  hypothesis of the guilt of the accused, that is to say, they  should not be explainable on any other hypothesis except  that the accused is guilty.

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(3) the  circumstances  should  be  of  a  conclusive  nature  and  tendency.

(4) they should exclude every possible hypothesis except the  one to be proved, and

(5) there must be a chain of evidence so complete as not to  leave any reasonable ground for the conclusion consistent  with the innocence of the accused and must show that in all  human  probability  the  act  must  have  been  done  by  the  accused.

153. These  five  golden  principles,  if  we may  say  so,  constitute  the  panchsheel  of  the  proof  of  a  case  based  on  circumstantial  evidence.”

Learned counsel for the appellant thereafter placed reliance on the decision  

rendered in Tanviben Pankajkumar Divetia Vs. State of Gujarat, (1997) 7 SCC  

156.  He placed reliance on the following observations recorded therein:-

“45. The principle for basing a conviction on the basis of circumstantial  evidences has been indicated in a number  of  decisions of  this  Court and the law is well settled that each and every incriminating  circumstance must be clearly established by reliable and clinching  evidence and the circumstances so proved must form a chain of  events from which the only irresistible conclusion about the guilt of  the accused can be safely drawn and no other hypothesis against  the guilt  is  possible.  This  Court  has clearly  sounded a note of  caution  that  in  a  case  depending  largely  upon  circumstantial  evidence, there is always a danger that conjecture or suspicion  may take the place of legal proof. The Court must satisfy itself that  various  circumstances  in  the  chain  of  events  have  been  established clearly and such completed chain of events must be  such as to rule out a reasonable likelihood of the innocence of the  accused. It has also been indicated that when the important link  goes,  the  chain  of  circumstances  gets  snapped  and  the  other  circumstances cannot  in  any manner,  establish the guilt  of  the  accused beyond all reasonable doubts. It has been held that the  Court  has to be watchful  and avoid the danger of  allowing the   suspicion  to  make  the  place  of  legal  proof  for  some  times,   unconsciously it may happen to be a short step between moral   certainty and legal proof. It has been indicated by this Court that   there is a long mental distance between 'may be true' and 'must  

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be true' and the same divides conjectures from sure conclusions.   (Jaharlal Das v. State of Orissa : 1991 3 SCC 27)

46. We may indicate here that  more the suspicious circumstances,  more  care  and caution  are  required  to  be taken otherwise  the  suspicious circumstances may unwittingly enter the adjudicating  thought  process  of  the  Court  even  though  the  suspicious  circumstances had not been clearly established by clinching and  reliable evidences. It appears to us that in this case, the decision  of the Court in convicting the appellant has been the result of the  suspicious  circumstances  entering  the  adjudicating  thought  process of the Court.”

Learned counsel also placed reliance on  Sucha Singh Vs. State of Punjab,   

(2001) 4 SCC 375.  The instant judgment was relied upon in order to support  

the contention, that circumstantial evidence could not be relied upon, where  

there was any vacuum in evidence.  It was pointed out therefrom, that this  

Court  has  held,  that  each  aspect  of  the  criminal  act  alleged  against  the  

accused, had to be established on the basis of material  of a nature, which  

would be sufficient to lead to the inference that there could be no other view  

possible,  than  the  one  arrived  at  on  the  basis  of  the  said  circumstantial  

evidence.  In this behalf, learned counsel for the appellant placed reliance on  

the following observations recorded in the afore-cited judgment.

“19. Learned  senior  counsel  contended  that  Section  106 of  the  Evidence  Act  is  not  intended  for  the  purpose  of  filling  up  the  vacuum in prosecution evidence. He invited our attention to the  observations made by the Privy Council  in  Attygalle Vs. R AIR  1936 PC 169, and also in Stephen Seneviratne vs. The King : AIR  1936  PC 289.  In  fact  the  observations  contained  therein  were  considered by this Court in an early decision authored by Vivian  Bose, J, in Shambhu Nath Mehra vs State of Ajmer, AIR 1956 SC  404.  The  statement  of  law made  by  the  learned  Judge  in  the  aforesaid  decision  has  been  extracted  by  us  in  State  of  West  Bengal vs. Mir Mohammad Omar, 2000 (8) SCC 382. It is useful  to extract a further portion of the observation made by us in the  aforesaid decision:

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sufficient  material  on the  record  of  the case to substantiate  the  factum of  

kidnapping of the deceased Suresh, at the hands of the accused-appellant.  

Be  there  as  it  may,  without  drawing  any  such  inference,  we  would  still  

endeavour  to  determine,  whether  the  prosecution  had  been  successful  in  

establishing the factum of kidnapping of the deceased Suresh, at the hands of  

the  accused-appellant.   In  so  far  as  the  instant  aspect  of  the  matter  is  

concerned, reference may first be made to the statement of Saraswathi, PW-8  

wherein she affirmed that on 27.7.2009, at about 9 p.m., when she was at her  

residence,  she  had  received  a  call  on  her  mobile  phone  bearing  number  

9943020435.  The caller identified himself as Shankar.  She deposed, that the  

caller had inquired from her about the phone number of Maheshwari (PW1).  

She stated, that she had responded to the said Shankar by asking him to call  

her after sometime, and in the meanwhile, she (Saraswathi) would gather the  

phone number of  Maheshwari  (PW1).  Soon after the first call,  Saraswathi  

(PW8) testified, that she received a second call from the same person.  On  

this  occasion,  Saraswathi  (PW-8) acknowledged having provided the caller  

with the mobile phone number of Maheshwari (PW1).  Through independent  

evidence the prosecution was in a position to establish that the first of the  

aforesaid two calls, were received by Saraswathi (PW8) at 9.22 p.m., and the  

second one at 9.25 p.m.  The caller, on having obtained the mobile phone  

number of Maheshwari (PW1) then called her (Maheshwari  – PW1) on the  

mobile  phone  number  supplied  by  Saraswathi  (PW8).  On  the  basis  of  

independent evidence the prosecution has also been able to establish, that  

Maheshwari,  (PW1) received the instant  phone call  at  9.39 p.m.,  from the

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same phone number from which Saraswathi, PW-8 had received two calls.  In  

her  statement,  Maheshwari  (PW1)  asserted,  that  the  caller  demanded  a  

ransom  of  Rs.5,00,000/-  for  the  safe  return  of  her  son,  Suresh.   At  this  

juncture,  as per her statement,  Maheshwari  (PW1) again visited the police  

station to apprise the police of the said development.  The aforesaid material,  

was one of the leads, which the police had adopted in identifying the accused-

appellant.   

22. Beside the aforesaid, the prosecution placed reliance on the deposition  

of  Kamali  (PW2),  for  identifying  the  appellant  as  the  kidnapper  of  the  

deceased, Suresh.  In her statement Kamali (PW-2) affirmed, that she along  

with the deceased Suresh had returned to their village Karkudal on 27.7.2009  

at about 4.30 p.m. in the school van.  When they alighted from the school van,  

as per the deposition of Kamali (PW2), the accused-appellant was seen by  

her,  standing  besides  his  motor-cycle.   The accused-appellant,  as  per  the  

testimony of Kamali (PW2), had gestured towards Suresh with his hand.  The  

deceased Suresh and Kamali (PW2) had accordingly gone to the accused-

appellant.  The  accused-appellant  had  told  Suresh,  that  his  mother  and  

grandmother were unwell, and he had been asked by his mother to bring him  

(Suresh) to the hospital. Thereafter, according to Kamali (PW2), the accused-

appellant had taken away the deceased Suresh, on his motor-cycle.  It would  

be relevant to indicate that Kamali (PW2) duly identified the accused-appellant  

in  an  identification  parade,  conducted  under  the  supervision  of  A.  Bashir,  

Judicial  Magistrate  (PW10),  on  25.8.2009  at  Cuddalore  Central  Prison.  

According  to  the testimony  of  A.  Bashir,  Judicial  Magistrate,  Kamali  PW-2

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correctly identified the accused-appellant.   The aforesaid evidence was the  

second basis  of  identifying  the accused-appellant  as  the  person,  who had  

kidnapped the deceased Suresh.

23. The  deposition  of  Kurinji  Selvan  (PW3)  has  already  been  narrated  

hereinabove.  Kurinji Selvan (PW3) had seen Suresh disembarking from the  

school van on 27.7.2009 at about 4.30 p.m., when the said van had returned  

to village Karkudal.  Kurinji Selvan (PW3) affirmed, that he had also seen the  

accused-appellant waiting for the arrival of the school van under a neem tree  

alongside his motorcycle.  Kurinji  Selvan (PW3) also deposed, that he had  

seen the accused-appellant taking away Suresh, on his motorcycle.  On the  

date of the incident itself, he had informed Maheshwari (PW1), that Suresh  

had been taken away by a man on his motorcycle.  In the same manner as  

Kamali (PW2) had identified the accused-appellant in an identification parade,  

Kurinji  Selvan  (PW3)  had  also  participated  in  the  identification  parade  

conducted at Cuddalore Central Prison on 25.8.2009.  He had also identified  

the  accused-appellant  in  the  presence  of  the  Judicial  Magistrate.   The  

statement of Kurinji Selvan (PW3) constitutes the third basis of identifying the  

accused-appellant as the man who had taken away Suresh on his motorcycle  

on 27.7.2009.   

24. Based on the evidence noticed in the three preceding paragraphs, there  

can be no doubt whatsoever, that the accused-appellant had been identified  

through cogent evidence as the person who had taken away Suresh when he  

disembarked from school  van on 27.7.2009.   The factum of  kidnapping of  

Suresh by the accused-appellant, therefore, stands duly established.

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25. The  material  question  to  be  determined  is,  whether  the  aforesaid  

circumstantial evidence is sufficient to further infer, that the accused-appellant  

had committed the murder of Suresh.  According to the learned counsel for  

the appellant,  there is no evidence whatsoever,  on the record of the case,  

showing the participation of the accused-appellant in any of the acts which led  

to  the  death  of  Suresh.   It  was,  therefore,  the  submission  of  the  learned  

counsel for the appellant, that even though the accused-appellant may be held  

guilty of having kidnapped Suresh, since it had not been established that he  

had committed the murder of Suresh, he cannot be held guilty of murder in the  

facts of this case.   

26. Having given our thoughtful consideration to the submission advanced  

at the hands of the learned counsel for the appellant, we are of the view, that  

the  instant  submission  is  wholly  misplaced  and fallacious.   Insofar  as  the  

instant  aspect  of  the  matter  is  concerned,  reference may be  made to  the  

judgment rendered by this Court in  Sucha Singh’s case (supra),  wherein it  

was held as under:-

“21. We  are  mindful  of  what  is  frequently  happening  during  these  days.   Persons  are  kidnapped  in  the  sight  of  others  and  are  forcibly taken out of the sight of all others and later the kidnapped  are killed.  If a legal principle is to be laid down that for the murder  of  such  kidnapped  there  should  necessarily  be  independent  evidence apart  from the circumstances enumerated above,  we  would  be  providing  a  safe  jurisprudence  for  protecting  such  criminal activities.  India cannot now afford to lay down any such  legal principle insulating the marauders of their activities of killing  kidnapped innocents outside the ken of others.”

A perusal of the aforesaid determination would reveal, that having proved the  

factum  of  kidnapping,  the  inference  of  the  consequential  murder  of  the

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kidnapped person, is liable to be presumed.  We are one with the aforesaid  

conclusion.  The logic for the aforesaid inference is simple.  Once the person  

concerned has been shown as having been kidnapped, the onus would shift  

on the kidnapper to establish how and when the kidnapped individual came to  

be released from his custody.  In the absence of any such proof produced by  

the kidnapper, it would be natural to infer/presume, that the kidnapped person  

continued  in  the  kidnapper’s  custody,  till  he  was  eliminated.   The  instant  

conclusion would also emerge from Section 106 of the Indian Evidence Act,  

1872 which is being extracted hereunder :

“106 - Burden of proving fact especially within knowledge—.When  any fact is especially within the knowledge of any person, the burden of  proving that fact is upon him.

Illustrations

(a)  When a person does an act  with some intention other  than that  which the character and circumstances of the act suggest, the burden of  proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden  of proving that he had a ticket is on him.”

27. Since  in  the  facts  and circumstances  of  this  case,  it  has  been duly  

established, that Suresh had been kidnapped by the accused-appellant; the  

accused-appellant has not been able to produce any material on the record of  

this case to show the release of Suresh from his custody.  Section 106 of the  

Indian Evidence Act, 1872 places the onus on him.  In the absence of any  

such material produced by the accused-appellant, it has to be accepted, that  

the custody of Suresh had remained with the accused-appellant, till he was  

murdered.   The  motive/reason  for  the  accused-appellant,  for  taking  the  

extreme step was, that ransom as demanded by him, had not been paid.  We

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are therefore,  satisfied,  that  in  the facts  and circumstances  of  the present  

case,  there  is  sufficient  evidence on the record  of  this  case,  on the basis  

whereof even the factum of murder of Suresh at the hands of the accused-

appellant stands established.   

28. We may now refer to some further material on the record of the case, to  

substantiate our aforesaid conclusion.  In this behalf, it would be relevant to  

mention, that when the accused-appellant was detained on 30.7.2009, he had  

made a confessional statement in the presence of Kasinathan (PW13) stating,  

that he had strangulated Suresh to death, whereupon his body was put into a  

gunny bag and thrown into the Meerankulam tank.  It was thereafter, on the  

pointing out of the accused-appellant, that the body of Suresh was recovered  

from the Meerankulam tank.  It was found in a gunny bag, as stated by the  

accused-appellant.   Dr.  Kathirvel  (PW12)  concluded  after  holding  the  post  

mortem examination of the dead body of Suresh, that Suresh had died on  

account  of  suffocation,  prior  to  his  having  been  drowned.   The  instant  

evidence clearly nails the accused-appellant as the perpetrator of the murder  

of Suresh.  Moreover, the statement of Kasinathan (PW13) further reveals that  

the school bag, books and slate of Suresh were recovered from the residence  

of  the  accused-appellant.   These  articles  were  confirmed  by  Maheshwari  

(PW1) as belonging to Suresh.  In view of the factual and legal position dealt  

with hereinabove, we have no doubt in our mind, that the prosecution had  

produced sufficient material to establish not only the kidnapping of Suresh, but  

also his murder at the hands of the accused-appellant.

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29. Besides  the  submission  advanced  on  the  merits  of  the  controversy,  

learned counsel for the accused-appellant also assailed the confirmation by  

the High Court of the death sentence imposed by the trial court.  During the  

course of hearing, it was the vehement contention of the learned counsel for  

the  accused-appellant,  that  infliction  of  life  imprisonment,  in  the  facts  and  

circumstances of this case, would have satisfied the ends of justice.  It was  

also the contention of the learned counsel for the accused-appellant, that the  

facts  and  circumstances  of  this  case  are  not  sufficient  to  categorize  the  

present case as a ‘rarest of a rare case’, wherein only the death penalty would  

meet the ends of justice.  In order to support the aforesaid contention, learned  

counsel for the accused-appellant, in the first instance, placed reliance on a  

recent judgment rendered by this Court in Haresh Mohandas Rajput Vs. State  

of Maharashtra, (2011) 12 SCC 56, wherein, having taken into consideration  

earlier judgments, this Court delineated the circumstances in which the death  

penalty could be imposed.  Reliance was placed on the following observations  

recorded therein:-

“Death Sentence – When Warranted:

“18. The guidelines laid  down in Bachan Singh v.  State  of  Punjab,  (1980) 2 SCC 684, may be culled out as under:

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

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

(iii) Life  imprisonment  is  the  rule  and  death  sentence  is  an   exception.  In  other  words,  death  sentence  must  be

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imposed  only  when  life  imprisonment  appears  to  be  an   altogether  inadequate  punishment  having  regard  to  the  relevant  circumstances  of  the  crime,  and  provided,  and  only  provided,  the  option  to  impose  sentence  of   imprisonment for life cannot be conscientiously exercised   having regard to the nature and circumstances of the crime  and all the relevant circumstances.

(iv) A  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 just balance has to be struck between the   aggravating  and the  mitigating  circumstances  before  the  option is exercised.

19. In Machhi Singh and Ors. v. State of Punjab, (1983) 2 SCC 684,  this Court expanded the "rarest of rare" formulation beyond the  aggravating factors listed in  Bachan Singh to  cases where the  "collective conscience" of a community is so shocked that it will  expect the holders of the judicial  powers centre to inflict  death  penalty  irrespective  of  their  personal  opinion  as  regards  desirability or otherwise of retaining death penalty, such a penalty  can be inflicted. But the Bench in this case underlined that full  weightage must be accorded to the mitigating circumstances in a  case and a just balance had to be struck between aggravating  and mitigating circumstances.

20. "The rarest of the rare case" comes when a convict would be a  menace and threat to the harmonious and peaceful co-existence  of the society. The crime may be heinous or brutal but may not be  in the category of "the rarest of the rare case". There must be no  reason  to  believe  that  the  accused  cannot  be  reformed  or  rehabilitated  and  that  he  is  likely  to  continue  criminal  acts  of  violence as would constitute a continuing threat  to the society.  The accused may be a menace to the society and would continue  to be so, threatening its peaceful and harmonious co-existence.  The manner in which the crime is committed must be such that it  may result in intense and extreme indignation of the community  and  shock  the  collective  conscience  of  the  society.  Where  an  accused  does  not  act  on  any  spur-of-the-moment  provocation  and  indulges  himself  in  a  deliberately  planned  crime  and  meticulously  executes it,  the death sentence may be the most  appropriate  punishment  for  such  a  ghastly  crime.  The  death  sentence  may  be  warranted  where  the  victims  are  innocent  children  and  helpless  women.  Thus,  in  case  the  crime  is  committed  in  a  most  cruel  and  inhuman  manner  which  is  an  extremely  brutal,  grotesque,  diabolical,  revolting  and  dastardly

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manner, where his act affects the entire moral fiber of the society,  e.g. crime committed for power or political ambition or indulging in  organized criminal activities, death sentence should be awarded.  (See: C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010  SC 3718; Rabindra Kumar Pal alias Dara Singh v. Republic of  India, (2011) 2 SCC 490; Surendra Koli v. State of U.P. and Ors.,  (2011) 4 SCC 80; Mohd. Mannan (supra); and Sudam v. State of  Maharashtra, (2011) 7 SCC 125).

21. 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.”

Reliance was also placed, on the decision of this Court in Ramnaresh & Ors.   

Vs. State of Chhattisgarh, (2012) 4 SCC 257.  Insofar as the instant judgment  

is concerned, learned counsel relied on the following observations:-

“The  death  sentence  and  principles  governing  its  conversion  to  life  imprisonment

56. Despite the transformation of  approach and radical  changes in  principles of sentencing across the world, it has not been possible  to  put  to  rest  the  conflicting  views  on  sentencing  policy.  The  sentencing  policy  being  a  significant  and  inseparable  facet  of  criminal  jurisprudence,  has  been  inviting  the  attention  of  the  Courts for providing certainty and greater clarity to it.  

57. Capital punishment has been a subject matter of great social and  judicial discussion and catechism. From whatever point of view it  is examined, one undisputable statement of law follows that it is  neither possible nor prudent to state any universal formula which  would be applicable to all the cases of criminology where capital  punishment has been prescribed. It shall always depend upon the  facts and circumstances of a given case. This Court has stated  various legal principles which would be precepts on exercise of  judicial discretion in cases where the issue is whether the capital  punishment should or should not be awarded.

58. The law requires the Court to record special reasons for awarding  such sentence. The Court, therefore, has to consider matters like  nature of the offence, how and under what circumstances it was  committed,  the  extent  of  brutality  with  which  the  offence  was

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committed,  the  motive  for  the  offence,  any  provocative  or  aggravating  circumstances  at  the  time  of  commission  of  the  crime,  the  possibility  of  the  convict  being  reformed  or  rehabilitated, adequacy of the sentence of life imprisonment and  other attendant circumstances. These factors cannot be similar or  identical in any two given cases.  

59. Thus, it is imperative for the Court to examine each case on its  own facts,  in light  of  the enunciated principles.  It  is  only  upon  application of these principles to the facts of a given case that the  Court can arrive at a final conclusion whether the case in hand is  one of the 'rarest of rare' cases and imposition of death penalty  alone shall  serve the ends of  justice.  Further,  the Court  would  also keep in mind that if such a punishment alone would serve  the purpose of the judgment, in its being sufficiently punitive and  purposefully preventive.

xxx xxx xxx xxx

72. The  above  judgments  provide  us  with  the  dicta  of  the  Court  relating to imposition of death penalty. Merely because a crime is  heinous per se may not be a sufficient reason for the imposition  of  death  penalty  without  reference  to  the  other  factors  and  attendant circumstances.

73. Most  of  the  heinous  crimes  under  the  IPC are  punishable  by  death penalty or life imprisonment. That by itself does not suggest  that  in  all  such  offences,  penalty  of  death  alone  should  be  awarded. We must notice, even at the cost of repetition, that in  such cases awarding of life imprisonment would be a rule, while  'death'  would  be  the  exception.  The  term 'rarest  of  rare'  case  which is the consistent determinative rule declared by this Court,  itself suggests that it has to be an exceptional case.  

74. The life of a particular  individual  cannot  be taken away except  according  to  the procedure  established by law and that  is  the  constitutional  mandate.  The  law  contemplates  recording  of  special reasons and, therefore, the expression 'special' has to be  given a definite  meaning  and connotation.  'Special  reasons'  in  contra-distinction to 'reasons'  simpliciter conveys the legislative  mandate of putting a restriction on exercise of judicial discretion  by placing the requirement of special reasons.

75. Since,  the  later  judgments  of  this  Court  have  added  to  the  principles  stated  by  this  Court  in  the  case  of  Bachan  Singh  (supra)  and Machhi Singh (supra), it will be useful to restate the

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the case, the accused believed that he was morally justified  in committing the offence.

(6) Where the Court upon proper appreciation of evidence is of  the view that the crime was not committed in a preordained  manner  and  that  the  death  resulted  in  the  course  of  commission  of  another  crime  and  that  there  was  a  possibility  of  it  being  construed  as  consequences  to  the  commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of  a sole eye-witness though prosecution has brought home  the guilt of the accused.

77. While determining the questions relateable to sentencing policy,  the Court has to follow certain principles and those principles are  the  loadstar  besides  the above considerations  in  imposition  or  otherwise of the death sentence.

Principles:

(1) The Court has to apply the test to determine, if it was the  'rarest of rare' case for imposition of a death sentence.

(2) In  the  opinion  of  the  Court,  imposition  of  any  other  punishment,  i.e.,  life  imprisonment  would  be  completely  inadequate and would not meet the ends of justice.

(3) Life  imprisonment  is  the  rule  and  death  sentence  is  an  exception.

(4) The  option  to  impose  sentence  of  imprisonment  for  life  cannot be cautiously exercised having regard to the nature  and  circumstances  of  the  crime  and  all  relevant  considerations.

(5) The method (planned or otherwise) and the manner (extent  of  brutality  and inhumanity,  etc.)  in  which the crime was  committed and the circumstances leading to commission of  such heinous crime.

78. Stated broadly, these are the accepted indicators for the exercise  of  judicial  discretion but  it  is  always preferred not  to fetter  the  judicial  discretion  by  attempting  to  make  the  excessive  enumeration, in one way or another. In other words, these are the  considerations which may collectively or otherwise weigh in the  mind of the Court, while exercising its jurisdiction. It is difficult to  state it as an absolute rule. Every case has to be decided on its

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own  merits.  The  judicial  pronouncements,  can  only  state  the  precepts that may govern the exercise of judicial discretion to a  limited extent. Justice may be done on the facts of each case.  These  are  the  factors  which  the  Court  may  consider  in  its  endeavour to do complete justice between the parties.

79. The Court then would draw a balance-sheet of aggravating and  mitigating  circumstances.  Both  aspects  have  to  be  given  their  respective weightage. The Court has to strike a balance between  the two and see towards which side the scale/balance of justice  tilts.  The  principle  of  proportion  between  the  crime  and  the  punishment  is  the principle  of  'just  deserts' that  serves as the  foundation of every criminal sentence that is justifiable. In other  words, the 'doctrine of proportionality' has a valuable application  to the sentencing policy under the Indian criminal jurisprudence.  Thus, the court will not only have to examine what is just but also  as to what the accused deserves keeping in view the impact on  the society at large.

80. Every punishment imposed is bound to have its effect not only on  the accused alone, but also on the society as a whole. Thus, the  Courts  should  consider  retributive  and  deterrent  aspect  of  punishment while imposing the extreme punishment of death.

81. Wherever, the offence which is committed, manner in which it is  committed, its attendant circumstances and the motive and status  of  the  victim,  undoubtedly  brings  the  case within  the  ambit  of  'rarest of rare' cases and the Court finds that the imposition of life  imprisonment would be inflicting of inadequate punishment,  the  Court may award death penalty. Wherever, the case falls in any  of  the  exceptions  to  the  'rarest  of  rare'  cases,  the  Court  may  exercise its judicial discretion while imposing life imprisonment in  place of death sentence.”

Last of  all,  reliance was placed on the judgment  rendered by this Court  in  

Brajendra Singh Vs. State of Madhya Pradesh, (2012) 4 SCC 289, wherein,  

this Court having followed the decision rendered in  Ramnaresh & Ors. Vs.   

State of Chhattisgarh (cited supra), further held as under:-

“38. First  and  the  foremost,  this  Court  has  not  only  to  examine  whether the instant case falls under the category of 'rarest of rare'  cases but also whether any other sentence, except death penalty,

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“364A. Kidnapping for ransom, etc.—Whoever kidnaps or  abducts any person or keeps a person in detention  after such kidnapping or abduction and threatens to  cause  death  or  hurt  to  such  person,  or  by  his  conduct  gives  rise  to  a  reasonable  apprehension  that such person may be put to death or hurt,  or  causes  hurt  or  death  to  such person  in  order  to  compel  the  Government  or  any  foreign  State  or  international inter-governmental organization or any  other person to do or abstain from doing any act or  to pay a ransom, shall be punishable with death, or  imprisonment  for  life,  and  shall  also  be  liable  to  fine.”

A  perusal  of  the  aforesaid  provision  leaves  no  room  for  any  

doubt, that the offence of kidnapping for ransom accompanied by  

a  threat  to  cause  death  contemplates  punishment  with  death.  

Therefore,  even without  an accused actually  having committed  

the murder of the individual kidnapped for ransom, the provision  

contemplates the death penalty.  Insofar as the present case is  

concerned,  there  is  no  doubt,  that  the  accused-appellant  has  

been found to have kidnapped Suresh for ransom, and has also  

actually committed his murder.  In the instant situation therefore,  

the  guilt  of  the  accused-appellant  (under  Section  364A  of  the  

Indian  Penal  Code)  must  be  considered  to  be  of  the  gravest  

nature,  justifying  the  harshest  punishment  prescribed  for  the  

offence.

(ii) The accused-appellant has also been found guilty of the offence  

of murder under Section 302 of the Indian Penal Code.  Section  

302 of the Indian Penal Code also contemplates the punishment

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of death for the offence of murder.  It is, therefore apparent, that  

the  accused-appellant  is  guilty  of  two heinous  offences,  which  

independently of one another, provide for the death penalty.

(iii) The accused caused the murder of child of 7 years.  The facts  

and circumstances of the case do not depict any previous enmity  

between the parties.  There is no grave and sudden provocation,  

which had compelled the accused to take the life of an innocent  

child.  The murder of a child, in such circumstances makes this a  

case of extreme culpability.

(iv) Kidnapping of a child was committed with the motive of carrying  

home a ransom.  On account of the non-payment of ransom, a  

minor child’s murder was committed.  This fact demonstrates that  

the  accused  had  no  value  for  human  life.  The  instant  

circumstance  demonstrates  extreme  mental  perversion  not  

worthy of human condonation.   

(v) The manner in which the child was murdered, and the approach  

and  method  adopted  by  the  accused,  disclose  the  traits  of  

outrageous criminality in the behaviour of the accused.  The child  

was first strangulated to death, the dead body of the child was  

then tied in a gunny bag, and finally the gunny bag was thrown  

into a water tank.  All this was done, in a well thought out and  

planned manner.  This approach of the accused reveals a brutal  

mindset of the highest order.

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(vi) All  the  aforesaid  aggravating  circumstances  are  liable  to  be  

considered  in  the  background  of  the  fact,  that  the  child  was  

known  to  the  accused-appellant.   In   the  examination  of  the  

accused under Section 313 of the Code of Criminal Procedure,  

the  accused  acknowledged,  that  he  used  to  see  the  child  

whenever the child was taken by his mother to her native village.  

Additionally, it is acknowledged in the pleadings, that the accused  

had developed an acquaintance with the child, when his mother  

used to visit her native place along with her son.  Murder was  

therefore committed, not of a stranger, but of a child with whom  

the  accused  was  acquainted.   This  conduct  of  the  accused-

appellant,  places  the  facts  of  this  case  in  the  abnormal  and  

heinous category.

(vii) The choice of kidnapping the particular child for ransom, was well  

planned and consciously motivated.  The parents of the deceased  

had four children – three daughters and one son.  Kidnapping the  

only male child was to induce maximum fear in the mind of his  

parents.   Purposefully  killing  the  sole  male  child,  has  grave  

repercussions for the parents of the deceased.  Agony for parents  

for  the  loss  of  their  only  male  child,  who  would  have  carried  

further the family lineage, and is expected to see them through  

their  old age,  is unfathomable.   Extreme misery caused to the  

aggrieved party, certainly adds to the aggravating circumstances.

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31. As against  the aforesaid aggravating circumstances,  learned counsel  

for  the  accused-appellant  could  not  point  to  us  even  a  single  mitigating  

circumstance.  Thus viewed, even on the parameters laid down by this Court,  

in the decisions relied upon by the learned counsel for the accused-appellant,  

we have no choice, but to affirm the death penalty imposed upon the accused-

appellant  by  the  High  Court.   In  fact,  we  have  to  record  the  aforesaid  

conclusion in view of the judgment rendered by this Court in Vikram Singh &  

Ors. Vs. State of Punjab, (2010) 3 SCC 56, wherein in the like circumstances  

(certainly, the circumstances herein are much graver than the ones in the said  

case), this Court had upheld the death penalty awarded by the High Court.

32. In view of the above, we find no justification whatsoever, in interfering  

with the impugned order of the High Court, either on merits or on the quantum  

of punishment.

33. Dismissed.

   …………………………….J.     (P. Sathasivam)

   …………………………….J.     (Jagdish Singh Khehar)

New Delhi; February 5, 2013.