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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1419-1420 OF 2012

Anil @ Anthony Arikswamy Joseph .. Appellant

Versus

State of Maharashtra  .. Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. We  are,  in  this  case,  concerned  with  a  gruesome  

murder of a minor boy aged 10 years after subjecting him to  

carnal intercourse and then strangulating him to death.      

2. The accused,  Anil  @ Anthony Arikswamy Joseph,  was  

charge-sheeted  with  offences  punishable  under  Sections  

302,  377  and  201  of  the  Indian  Penal  Code  (IPC).    The  

Principal  District  and  Sessions  Judge,  Nagpur  in  Sessions  

Trial No.167 of 2008 convicted the Appellant for the offence

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punishable  under  Section  302  IPC  and  sentenced  him  to  

death and also sentenced to pay a fine of Rs.10,000/- and in  

default to suffer rigorous imprisonment for one year and for  

the  offence  punishable  under  Section  377  IPC,  he  was  

sentenced to suffer rigorous imprisonment for 10 years and  

to pay a fine of Rs.1,000/- and in default to suffer rigorous  

imprisonment for a period of three months.  The Appellant  

was also convicted for the offence punishable under Section  

201 IPC and was sentenced to suffer rigorous imprisonment  

for 3 years and to pay a fine of Rs.1,000/- and in default to  

suffer rigorous imprisonment for a period of three months.  

Substantive  sentences,  it  was  ordered,  would  run  

concurrently.   Since the accused was sentenced to death,  

reference  was  sent  to  the  High  Court  for  confirmation  of  

death  sentence.   The  accused  also  filed  Criminal  Appeal  

No.17 of 2011.   

3. The  Appeal  and  the  criminal  confirmation  case  then  

came  up  for  hearing  before  a  Division  Bench  of  Nagpur  

Bench  of  the  Bombay  High  Court  on  10.08.2011  and  the

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Bench noticed that the DNA profile blood sample and semen  

sample were not brought before the trial court.  Further, it  

was noticed that  PW5,  the Assistant  Chemical  Analyzer  of  

Forensic  Science  Laboratory,  Mumbai,  had  given  detailed  

evidence in respect of the contents of Ext.35.  She stated  

that she had occasion to compare DNA of blood sample of  

the accused with Ext.1 (semen stains on half pant) and Ext.5  

(anal  smear of  the deceased)  and the DNA samples were  

matching.  PW5 submitted Ext.  38 report.  Ext. 38, it  was  

noticed, did not disclose any comparison, as stated by PW5,  

which was done in FSL at Mumbai.  Considering the serious  

nature of the offence and considering the fact that the whole  

case  against  the  accused  was  based  on  circumstantial  

evidence, the Court felt that it would be necessary to recall  

PW5  and  record  her  further  examination-in-chief  with  

reference to her report in respect of the DNA profile of the  

accused,  that  too  with  reference  to  her  evidence  at  

paragraph No.3 of her examination–in-chief on 25.09.2009.

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4. The  Bench,  therefore  remitted  the  case  to  the  trial  

court for production of additional evidence.  The operative  

portion of the order reads as under :

(i) The  prayer  for  production  of  copies  of  Judgments in Sessions Trial  No.118 of 1997  and  Sessions  Trial  No.39  of  2002  does  not  survive as it is not pressed.

(ii) The prosecution shall move the learned Trial  Court  for  production  of  the  additional  evidence.

(iii) The prosecution shall  recall  P.W.5 and shall  re-examine  the  said  witness  further  with  referenced to the DNA profile of blood sample  of  the accused and the comparison thereof  with Exs.1, 4 and 5 of the report Ex.35.

(iv) The learned Trial Court shall be at liberty to  allow the prosecution to  produce any other  documents  connected  with  the  evidence  or  concerning  the  collection  of  samples,  carrying  the  same  to  F.S.L.  and  analysis  thereof.  

(v) The learned Trial Court shall also be at liberty  to  allow  the  prosecution  to  examine  any  other  witness  pertaining  to  or  concerning  with the collection of  samples,  carrying the  same to F.S.L. and analysis thereof.

(vi) The  prosecutions  shall  recall  P.W.10  and  P.W.14 and shall examine them further with  reference to forwarding samples Exs.1, 4 and  5 of Ex.35 and blood and semen samples of  accused-appellant.

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(vii) Needless to state that the accused-appellant  shall  be  given  an  opportunity  to  cross- examine  the  witnesses  recalled  or  fresh  witnesses examined following this order.

(viii) It is made clear that the learned trial Court  shall be at liberty to pass any incidental order  to achieve the purpose of this order, but shall  be careful to see that the prosecution does  not  misuse this  opportunity  of  recording  of  additional  evidence  to  introduce  any  other  evidence, which is not subject matter of the  present order.

(ix) The original record and proceedings be sent  back to the learned Sessions Judge, Nagpur.

(x) The learned Sessions Judge shall comply with  this  order  within  30  days  from the date  of  receipt  of  this  order  and  shall  certify  the  additional evidence to this Court immediately  thereof.

Application accordingly stands disposed of.”

5. The  Sessions  Court,  after  recording  the  additional  

evidence and recalling and further examining the witnesses,  

as  ordered,  forwarded  the  same to  the  High  Court.   The  

appeal was then heard by a Division Bench of the High Court  

on  10.10.2011  along  with  the  confirmation  case  and  the  

additional  evidence  recorded.  The  High  Court,  after

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appreciating  the  oral  and  documentary  evidence  and  

arguments  advanced  by  the  counsel  on  either  side,  

confirmed  the  death  sentence  noticing  the  brutal  and  

grotesque manner in which the crime was committed.  The  

High  Court  held  that  the  young  boy  of  tender  age  was  

subjected to unnatural sex for the satisfaction of the lust of  

the accused which, according to the High Court, falls under  

the category of rarest of the rare cases.  The High Court,  

therefore,  dismissed  the  appeal  and  confirmed  the  death  

sentence, against which these appeals have been preferred.

6. Shri P.C. Aggarwala, learned senior counsel appearing  

for the Appellant, submitted that the prosecution has failed  

to  prove  the  case  beyond  reasonable  doubt  and  all  the  

circumstances put together would lead to only one inference  

that the accused is not guilty of the offences charged against  

him.    Learned  senior  counsel  also  submitted  that  the  

prosecution has not succeeded in establishing the last seen  

theory and the evidence adduced by PW2, PW3, PW8 and  

PW9 would not establish that the victim was last seen with

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the accused.   Learned senior counsel also submitted that  

the prosecution could not establish that the articles stated to  

have been recovered from the house of the accused were  

that of the deceased. The evidence of PW1 and PW6, it was  

pointed out, was totally unworthy and ought to have been  

discarded.   Learned senior counsel also submitted that the  

evidence  in  respect  of  DNA  Profile  is  completely  

manufactured to rope in the accused and the evidence of  

PW10 and PW14 in that respect cannot be believed.  

7. Shri  Shankar  Chillage,  learned  counsel  appearing  for  

the  prosecution,  on  the  other  hand,  submitted  that  the  

Courts  below  have  correctly  appreciated  the  evidence  of  

PW2, PW3, PW8 and PW9 and have come to the conclusion  

that the victim was last seen in the company of the accused  

and all the principles laid down by this Court to establish the  

last seen theory have been completely satisfied, so far as  

the  present  case  is  concerned.   Learned  counsel  also  

submitted that the evidences of PW1 and PW6 have been  

correctly  appreciated  by  the  Courts  below  and  the

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prosecution  has  succeeded  in  proving  that  the  articles  

recovered from the possession of the accused were that of  

the  deceased.    Learned counsel  also  submitted  that  the  

Courts  below  have  correctly  appreciated  the  evidence  of  

PW5,  the Assistant Chemical  Analyser,  who conducted the  

DNA test and deposed that she obtained the blood sample of  

the accused and matched the profile from the blood profile,  

which was sent as Ex.1 i.e. semen stain cutting from the half  

pant and submitted the Report Exh.38.    Learned counsel  

submitted that the evidence of PW5 has to be appreciated in  

the light of the evidence of PW12, PW13, PW15 and PW16,  

which would clearly indicate that the DNA profile obtained  

from  the  anal  smear  of  the  deceased  matched  with  the  

accused.   Learned counsel submitted that the DNA profile  

conclusively indicates that the accused has committed the  

offence punishable under Section 377 IPC.  Learned counsel  

also submitted that the High Court has rightly held that the  

case falls under the rarest of the rare category and correctly  

awarded the death sentence.

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8. PW7, Shobha Vaidya, mother of the deceased, a maid  

servant, was running here and there anxiously for few days  

to know the whereabouts of her missing son aged 10 years.  

The boy had gone to the school on 10.1.2008 and normally  

he used to return in the evening, but on that day he did not  

return.   Since whereabouts of the boy were not known for  

few days, she lodged a complaint on 15.1.2008 at about 5.00  

p.m. before PW10, the Sub-Inspector of Police, attached to  

Crime  Branch,  Nagpur,  who  was  posted  at  Sadar  Police  

Station.   Meanwhile, PW2, Mary, a lady, residing near the  

house of the accused, informed PW10 that the dead body of  

a boy aged 9-10 years was seen floating in a well at Juna  

Kabrastan (old cemetery).  PW10 then proceeded to the spot  

and with the assistance of fire brigade took the dead body  

from  the  well  and  sent  the  same  to  Mayo  Hospital  for  

conducting  post-mortem  examination.    After  getting  the  

post-mortem report, PW10 lodged the report and registered  

the offence under Sections 377, 302 and 201 IPC.   

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9. PW14,  Police  Sub-Inspector  attached  to  Sadar  Police  

Station, was entrusted with the investigation.   By that time,  

the  accused  was  arrested  on  17.1.2008  and,  on  his  

disclosure, various articles belonging to the deceased were  

recovered  from the  house  of  the  accused  and  they  were  

seized  in  the  presence  of  Panchas.    School  bag  of  the  

deceased, which was black in colour and had pink stripes,  

concealed in a box was recovered.  Bag was opened in the  

presence  of  panchas  and  it  was  found  to  contain  a  Bal  

Bharati textbook, Mathematics and English books, two note-

books,  all  bore  the  name  of  the  deceased.   Further,  a  

Barmuda  pant,  belonging  to  the  accused  and  a  jeans  

belonging to the deceased were recovered on 17.01.2008.  

The accused was referred for medical examination and the  

blood sample was taken on 18.01.2008.  Samples of blood  

semen and nail clippings were taken under Ext.17.  On the  

disclosure of the accused, the shirt worn by him, which was  

concealed  near  a  tree  under  a  stone,  was  recovered  on  

22.01.2008.  Seized articles were referred to the Chemical  

Analysis  at  Nagpur.   The  reports  of  the  Analyzer  are  at

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Exts.91 and 92, while the DNA reports are at Exts.35 and 38.  

After completing the investigation, the police charge-sheeted  

the accused for offences punishable under Sections 302, 377  

and  201  IPC.   On  the  side  of  the  prosecution,  fourteen  

witnesses  were  examined  and  the  documentary  evidence  

were brought on record and on the side of the defence, none  

was examined.   

10. PW2, Mary, who runs a tea stall in front of the Income  

Tax Office, which is near the old cemetery, was examined by  

the  prosecution  to  prove  that  the  boy  was  seen  in  the  

company  of  the  accused.  She  stated  that  she  knows  the  

accused who is residing just in front of her house.   She has  

also deposed that on 13.1.2008, the accused had come to  

her  shop  and  demanded  Gutka,  which  she  did  not  give.  

Later, a boy of about 11 years was sent from the house of  

accused,  who  purchased  few  items  from  her  shop  and  

returned  to  the  same  house.   PW3,  a  neighbour  of  the  

accused, is also residing near the old cemetery.   She has  

also deposed that she had seen the boy with the accused on

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10.01.2008 and 11.01.2008.   PW8, the sister of the accused,  

who was also residing with the accused in his house, stated  

that  she  saw  a  boy  aged  about  10  to  12  years  in  the  

company of the accused, during the above-mentioned period  

and  on  the  fateful  day,  that  is,  in  the  mid-night  of  

12.01.2008 and 13.01.2008, she heard the cries of the boy  

from the room of the accused.   PW9, a neighbour of the  

accused, also noticed one boy aged 10 years accompanying  

the accused and that,  on the midnight of 12.01.2008, she  

heard the cries of a small boy emanated from the side of the  

house of the accused.

11. We have gone through the evidence of PW2, PW3, PW8  

and PW9 in its entirety and, in our view, they are trustworthy  

and reliable.  In our view, the prosecution has succeeded in  

establishing  its  case  beyond  reasonable  doubt  that  the  

deceased was last seen in the company of the accused and  

that the findings recorded by the trial Court and affirmed by  

the High Court call for no interference.  

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12. PW1  and  PW6,  Panchas  of  Ex.  13  and  Ex.40  

respectively, were examined by the prosecution to prove the  

recovery of the pant as well as school bag of the deceased.  

School  bag  was  recovered  from a  box  which  was  placed  

beneath  the  cot  in  the  house  of  the  accused.   Seizure  

panchanams  vide  Exts.15  and  19  give  the  details  of  the  

articles seized at the instance of the accused.   The school  

bag contained books and note books which bore the name of  

the  deceased.    The pant  and the  school  bag along with  

books contained therein would clearly indicate that the boy  

was  in  the  company  of  the  accused  on  the  fateful  day.  

Consequently, the presence of the deceased in the room of  

the  accused  has  been clearly  established and the  finding  

recorded by the trial Court as well as the High Court on that  

ground also calls for no interference.   

13. PW4  is  the  doctor  who  conducted  the  post-mortem  

examination  of  dead  body  of  the  deceased.   The  post-

mortem report (Exh.33) indicates the following external and  

internal injuries on the dead body of the deceased :

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“External Injuries

(1) Anus dilated and appears patalous, perional  margin  and  mucosa  appear  inflamed,  no  evidence of tear or foreign body.

(2) Position of Limbus straight. (3) Multiple  contused  abrasions  (6  in  numbers)  

present  over  forehead  of  size  varying  from  1.5 cm x 1.5 cm to 2 cm x 2 cm.

(4) Incised  wound  present  over  right  lateral  forehead oblique of size 1.5 cm x 0.5 cm x  bone deep.     

(5) Contused abrasion at right preauricular area  of size 2 cm x 2 cm.

(6) Contused  abrasion  at  right  face,  1.5  cm  below the lower eye lid of size 2 cm x 2.5 cm.

(7) Centurion present at chin of size 2 cm x 2.5  cm.

(8) Graze abrasion present  at  right  arm,  anteri  medial aspect, lower 1/3rd of size 3.5 cm x 5  cm directed downward and right laterally.

Internal Injuries

(1) Right frontal region of size 4 cm x 5 cm x 0.5  cm.

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(2) Right parieto-temporal region of size 5 cm x 4  cm x 0.5 cm.

(3) Left occipital region of size 4 cm x 4 cm x 0.5  cm.   Brain, party reddish tinged appearance to the  right parieto-temporal region.”

14. PW4 has stated that all the internal injuries correspond  

to external  injuries and they were ante-mortem and were  

ordinarily sufficient to cause death.   PW4 has also opined  

that  there  was  possibility  of  carnal  intercourse  with  the  

deceased, though the cause of death was head injury.   PW4  

also stated that he had seen the DNA report at Exh.35 and  

stated  that  the  report  indicates  that  anal  smear  of  the  

deceased  gave  a  mixed  DNA  profile  which  matches  with  

semen  on  half  pant  and  blood  of  victim.   PW4  was  also  

shown another report of DNA, which was in respect of the  

control  sample blood of the accused and stated that DNA  

profile of blood matches with DNA profile of semen found in  

the anus of the deceased.  Further, he has also stated that  

injury  nos.1,  3,  4  and 5 were possible  by hard and blunt

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object while injury no.2 was caused by sharp cutting edge  

and injury no.6 was caused by hard and rough object.   Facts  

clearly indicate that the fatal injuries were caused to silence  

him,  after  satisfying lust  in  a barbaric  manner.   Attempts  

were made to destroy the evidence which were also proved.  

PW4 also categorically stated in respect of injury no.1 that it  

should read as anus dilated and appears patalous, perianal  

margin anal mucosa appear inflamed, though no evidence of  

tear or foreign body.    

15. PW5, the Assistant Chemical Analyzer, Forensic Science  

Lab, Kalina, Mumbai stated that she had received the parcels  

from the Regional Forensic Science Laboratory, Nagpur on  

24.1.2008 and she started the analysis  on the same day.  

She stated that Exh.1 is a DNA profile of the accused and  

Exh.5  anal  smear  is  of  the  deceased,  which  gave  mixed  

profile.  Further, it is stated that the profile obtained from  

Exh.1 semen stains matches with the profile obtained from  

Exh.5  anal  smear  and  also  Exh.4  blood  stains  gauze  

collected from the deceased.  She stated that she conducted

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two tests, one nuclear Short Tandem Repeats (STR) and Y  

Short Tandem Repeats (YSTR).  PW5, in her report, stated  

that  she  obtained  blood  samples  of  the  accused  and  

matched the profile obtained from that blood with the profile  

of Exhs.1 and 5 and that the profiles were matching.   PW5,  

as  already  indicated,  was  recalled  after  the  matter  was  

remitted to the trial Court for getting further evidence and  

she repeated that she had analyzed the blood sample of the  

accused for DNA profiling and it matched with the sample,  

which was sent as Exh.1 i.e. semen stain cutting from the  

half pant.  She accordingly issued a report as Exh.38.   

16. PW12, the Medical Officer attached to Mayo Hospital,  

Nagpur  was  examined to  prove that  he  had received the  

requisition for  taking blood samples,  pubic  hair,  nails  and  

semen of the accused under requisition at Exh.75, which was  

handed  over  to  the  police.   PW15  and  PW16  were  also  

examined to establish the procedure followed for taking the  

parcel to the Chemical Analyser for DNA test as well as for  

collecting  blood  samples,  etc.    On  going  through  the

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evidence  of  PW4  and  PW5  read  with  evidence  of  PW12,  

PW15 and PW16, we are of the view that the DNA test was  

successfully  conducted  and  that  the  anal  smear  matched  

with the DNA profile of semen stains which were found on  

the pant of the accused and were matched with the control  

blood sample of the accused as well as blood sample of the  

deceased.    

17. Deoxyribonucleic  acid,  or  DNA,  is  a  molecule  that  

encodes the genetic information in all living organisms.  DNA  

genotype can be obtained from any biological material such  

as bone, blood, semen, saliva, hair, skin, etc.     Now, for  

several  years,  DNA  profile  has  also  shown  a  tremendous  

impact  on  forensic  investigation.    Generally,  when  DNA  

profile of a sample found at the scene of crime matches with  

DNA profile  of  the suspect,  it  can generally  be concluded  

that both samples have the same biological  origin.    DNA  

profile is valid and reliable, but variance in a particular result  

depends on the quality control and quality procedure in the  

laboratory.  

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18. PW5,  Dr.  Varsha  Rathod,  stated  that  since  1994 she  

was  working  as  Assistant  Chemical  Analyzer  and  has  

analyzed thousands of samples including DNA test.  She has  

stated  that  she  had  conducted  two  tests,  one  STR  and  

second YSTR.  Both the tests are scientifically proven and  

the competence of the doctor who conducted the test is also  

not questioned.  Consequently, the DNA test report could be  

safely  accepted,  which  shows that  the  deceased boy was  

subjected to unnatural sex and offence under Section 377  

has been clearly made out.  

19. Section  377  is  mainly  confined  to  act  of  sodomy,  

buggery and bestiality, which intends to punish a man when  

he  indulges  in  a  carnal  intercourse  against  the  order  of  

nature with a man or, in the same manner, with a woman.  

Sodomy  is  termed  as  Pederasty  when  the  intercourse  is  

between a man and a young boy, that is, when the passive  

agent  is  a  young  boy.   Modi’s  Medical  Jurisprudence  and  

Toxicology state that if a passive agent is not accustomed to  

sodomy,  abrasions  on  the  skin  near  the  anus  is  likely  to

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appear  and lesions will  be most  marked in  children while  

they  may  be  almost  absent  in  adults,  when  there  is  no  

resistance to the anal coitus. Galster’s Medical Jurisprudence  

and  Toxicology  say  that  lesions  like  recent  lacerations,  

bruising,  inflammation of  the mucous membrane could be  

noticed in passive agent. Article 377 postulates penetration  

by  the  penis  into  the  anus  and  the  merest  penetration  

suffices  to  establish  the  offence.  PW4 has  clearly  noticed  

that  “Anus  dilated  and  appears  patalous,  perional  margin  

and mucosa appear inflamed”.  DNA test also proved that  

anal smear matched with the DNA profile of smear stains,  

which also matched with the control sample of the accused.  

Consent of a passive agent is not at all a defence, but, in the  

instant case, though a suggestion was made that the boy  

had not resisted, being in the company of the accused for  

few  days,  is  of  no  consequence,  he  being  a  minor.  

Prosecution has clearly established that, after subjecting the  

boy to Pederasty, he was strangulated to death.   

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20. PW8 has categorically  stated that  she had heard the  

cries of the boy during mid-night and she could not sleep till  

the cries subsided.  PW8 is none other than the sister of the  

accused.  She heard the cries of the boy coming from the  

room of the accused.  She is a trustworthy witness and has  

no axe to grind against the accused.   PW9 has also stated  

that she wanted to go to the direction in which she heard the  

cries, however, darkness deterred her and others proceeding  

to the place of occurrence.  Cries heard were obviously in  

loud voice, which indicates that the accused had indulged in  

such a barbaric act and ultimately killed the boy and later  

threw the dead body in the well situated near the premises  

of the old cemetery,  a spot which was located behind his  

house.   The  Courts  below,  therefore,  concluded  that  the  

offence committed by the accused shows extreme depravity  

of mind and shows extreme perversity and, therefore, calls  

for extreme punishment i.e. the accused be hanged by neck  

till  death.   We  are  of  the  opinion  that  the  case  under  

Sections 302, 377 and 201 IPC has been clearly made out.  

The  question  is  only  with  regard  to  the  sentence  and

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whether the present case falls under the category of rarest  

of rare case, warranting capital punishment.  

21. In  Shankar  Kisanrao  Khade  v.  State  of  

Maharashtra (2013)  5  SCC 546,  we have dealt  with  the  

various  principles  to  be  applied  while  awarding  death  

sentence.    In  that  case,  we  have  referred  to  the  cases  

wherein death penalty was awarded by this Court for murder  

of minor boys and girls and cases where death sentence had  

been commuted in the cases of murder of minor boys and  

girls.  In  Shankar Kisanrao Khade  (supra), we have also  

extensively referred to the principles laid down in  Bachan  

Singh v. State of Punjab (1980) 2 SCC 684 and Machhi  

Singh  v.  State  of  Punjab (1983)  3  SCC  470  and  the  

subsequent  decisions.    Applying  the  tests  laid  down  in  

Shankar Kisanrao Khade (supra), we are of the view that  

in  the instant  case the  crime test  and criminal  test  have  

been fully satisfied against the accused.   Still, we have to  

apply the RR test and examine whether the society abhors  

such crimes and whether such crimes shock the conscience

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of the society and attract intense and extreme indignation of  

the community.   

22. We have no doubt in our mind that such types of crimes  

preceded  by  Pederasty  are  extremely  brutal,  grotesque  

diabolical and revolting, which shock the moral fiber of the  

society,  especially  when  the  passive  agent  is  a  minor.  

Recently,  this  Court  in  Suresh  Kumar  Koushal  and  

Another v. Naz Foundation and Others    (2014) 1 SCC 1  

has also refused to strike down Section 377,  even if  such  

acts are indulged in by consenting individuals.    

23. Accused is now around 42 years of age and when he  

committed the crime, he was about 35 years.  We  have  

clearly  found  that  there  is  no  mitigating  circumstance  

favouring the accused.  Age is not a factor favouring him.  By  

the age of 35, a person attains sufficient maturity and can  

distinguish what is good or bad, and there is nothing to show  

that he was under any emotional or mental stress and the  

offence was committed only to satisfy his lust, in a perverted  

way.  Accused is not the only son of his parents, but the boy

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was a minor, totally innocent and defenceless, the only son  

of  PW7.   The mother,  PW7,  is  a  house maid and the son  

would have looked after her in her old age and also would  

have been of considerable help to her.  Son was snatched in  

a barbaric gruesome manner only to satisfy the perverted  

lust of the accused.  PW7, the mother had to see the dead  

body of the son floating in the well.  PW8, the sister of the  

accused and PW9, the neighbour, both ladies heard the cries  

of the helpless boy during mid-night but both were helpless.  

PW8 could not go out of her room since it was locked from  

outside.   PW9,  a  lady  could  not  go  to  the  house  of  the  

accused due to pitched darkness.

24. In  Shankar Kisanrao Khade (supra),  this  Court  did  

not  confirm  the  death  sentence,  even  though  the  post-

mortem spelt out the act of sodomy as the prosecution had  

failed to  chargesheet  the accused under  Section 377 IPC,  

which was commented upon by this Court.  But, so far as the  

present case is concerned, the offences under Section 302  

and 377 have been fully established and both the crime test

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and the criminal test have been fully satisfied against the  

accused.  Now, we have to apply the RR Test.

25. We may point out that apart from what has been stated  

in Bachan Singh’s case (supra) and Machhi Singh’s case  

(supra)  this  Court  in  various  cases  like  Om  Prakash v.  

State  of  Haryana (1999)  3  SCC  19,  State  of  U.P.  v.  

Sattan (2009)  4  SCC  736,  Santosh  Kumar  

Satishbhushan Bariyar v.  State of Maharashtra (2009)  

6 SCC 498,  held that Court must state special  reasons to  

impose death penalty, hence, the RR Test.

RR Test

26. R-R Test, we have already held in  Shankar Kisanrao  

Khade’  case (supra),  depends upon the perception of the  

society that is “society-centric” and not “Judge-centric”, that  

is, whether the society will approve the awarding of death  

sentence to certain types of crimes or not.  While applying  

that test,  the court has to look into variety of factors like  

society’s abhorrence, extreme indignation and antipathy of

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certain  types of  crimes  like sexual  assault  and murder  of  

minor  girls,  intellectually  challenged  minor  girls,  minors  

suffering from physical disability, old and infirm women, etc.  

R-R Test is found satisfied in several cases by this Court like  

in Bantu v. State of U.P. (2008) 11 SCC 113, wherein this  

Court affirmed the death sentence in a case where minor girl  

of five years was raped and murdered.  This Court noticed  

that the victim was an innocent child and the murderer was  

in a dominating position, which the Court found as a vital  

factor justifying the award of capital punishment. Shivaji v.  

State  of  Maharashtra (2008)  15  SCC  269,  was  a  case  

where a married person having three children, known to the  

family  of  the deceased,  ravished the life  of  a  girl  aged 9  

years and strangulated her to death, this Court affirmed the  

death  sentence  awarded  by  the  High  Court.   Mohd.  

Mannan v.  State of Bihar (2011) 5 SCC 317, was a case  

where a minor girl aged 7 years was kidnapped, raped and  

murdered by an accused aged between 42-43 years.  This  

Court held that he would be a menace to society and would  

continue  to  be  so  and  could  not  be  reformed and  hence

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confirmed  the  death  sentence.  Rajendra  Pralhadrao  

Wasnik v.  State of Maharashtra (2012) 4 SCC 37 was a  

case where a 3 year old child was raped and murdered by an  

accused  of  31  years  old.   This  Court  noticed  the  brutal  

manner in which the crime was committed and the pain and  

agony undergone by the minor girl.   This Court confirmed  

the death sentence.

27. In  Haresh  Mohandas  Rajput v.  State  of  

Maharashtra (2011) 12 SCC 56, this Court opined that the  

death sentence, in a given case, can be awarded where the  

victims are innocent children and helpless women, especially  

when the crime is committed in a most cruel and inhuman  

manner which is extremely brutal, grotesque, diabolical and  

revolting.  Reference may also be made to the Judgments of  

this  Court  in  Rabindra Kumar Pal  alias  Dara Singh v.  

Republic  of  India (2011)  2  SCC 490,  Surendra Koli v.  

State of U.P. and others (2011) 4 SCC 80 and Sudam @  

Rahul Kaniram Jadhav v. State of Maharashtra (2011) 7  

SCC 125.

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28. This Court in  Mahesh  v.  State of Madhya Pradesh  

(1987) 3 SCC 80 deprecated the practice of taking a lenient  

view  and  not  imposing  the  appropriate  punishment  

observing that it will be a mockery of justice to permit the  

accused to escape the extreme penalty of law when faced  

with such evidence and cruel acts. This Court further held  

that to give the lesser punishment for the appellants would  

be to render the justicing system of this country suspect and  

the common man will lose faith in courts. In such cases, he  

understands  and  appreciates  the  language  of  deterrence  

more than the reformative jargon.   In  Bantu (supra),  this  

Court placing reliance on the Judgment in Sevaka Perumal  

v. State of T.N. (1991) 3 SCC 471 observed as follows:

“Therefore, undue sympathy to impose inadequate  sentence  would  do  more  harm  to  the  justice  system to undermine the public confidence in the  efficacy of law, and society could not long endure  under  such  serious  threats.  It  is,  therefore,  the  duty  of  every  court  to  award  proper  sentence  having regard to the nature of the offence and the  manner in  which it  was executed or  committed,  etc.

Thus,  it  is  evident  that  criminal  law requires  strict  adherence to  the rule  of  proportionality  in

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providing punishment according to the culpability  of each kind of criminal conduct keeping in mind  the effect of not awarding just punishment on the  society.  

The “rarest of the rare case” comes when a  convict  would  be  a  menace  and  threat  to  the  harmonious  and  peaceful  coexistence  of  the  society.  Where an accused does not  act  on any  spur of the moment provocation and he indulged  himself  in  a  deliberately  planned  crime  and  meticulously executed it, the death sentence may  be  the  most  appropriate  punishment  for  such  a  ghastly crime.”

29. We  may  indicate,  unlike  Shankar  Kisanrao Khade’  

case (supra), in this case offence under Section 377 IPC has  

been fully proved so also the offence under Section 302 IPC.  

Indian  society  and  also  the  International  society  abhor  

pederasty, an unnatural sex, i.e. carnal intercourse between  

a man and a minor boy or a girl.  When the victim is a minor,  

consent is not a defence, irrespective of the views expressed  

at certain quarters on consensual sex between adults.

Reformation and Rehabilitation  

30. Learned  counsel  for  the  accused  submitted  that  the  

accused has no previous criminal history and would not be a

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menace to the society.  Further, it was also pointed out that  

possibility  of  reformation  or  rehabilitation  of  the  accused,  

who is aged 42 years, cannot be ruled out and the State has  

not discharged its responsibility of proving the impossibility  

of rehabilitation.    

31. In  Bachan Singh  (supra), this Court has categorically  

stated, “the probability that the accused would not commit  

criminal  acts  of  violence as  would  constitute a  continuing  

threat to the society”, is a relevant circumstance, that must  

be  given  great  weight  in  the  determination  of  sentence.  

This  was  further  expressed  in  Santosh  Kumar  

Satishbhushan  Bariyar  (supra).   Many-a-times,  while  

determining  the  sentence,  the  Courts  take  it  for  granted,  

looking into the facts of a particular case, that the accused  

would be a menace to the society and there is no possibility  

of reformation and rehabilitation, while it is the duty of the  

Court to ascertain those factors, and the State is obliged to  

furnish  materials  for  and  against  the  possibility  of  

reformation and rehabilitation of the accused.  Facts, which

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the  Courts,  deal  with,  in  a  given  case,  cannot  be  the  

foundation for reaching such a conclusion, which, as already  

stated, calls for additional materials.  We, therefore, direct  

that  the  criminal  courts,  while  dealing  with  offences  like  

Section 302 IPC, after conviction, may, in appropriate cases,  

call for a report to determine, whether the accused could be  

reformed or rehabilitated, which depends upon the facts and  

circumstances of each case.  

32. Learned counsel also pointed out that the accused had  

not  kidnapped  the  boy,  who  voluntarily  came and stayed  

with him.  Learned counsel also pointed out that the entire  

case rests upon circumstantial evidence and generally in the  

absence  of  ocular  evidence,  death  sentence  is  seldom  

awarded.   Reference  was  made to  few judgments  of  this  

Court  in  support  of  his  contention,  such  as  State  of  

Maharashtra v. Mansingh (2005) 3 SCC 131 and Bantu v.  

State of M.P.  (2001) 9 SCC 615.   Learned counsel  also  

made reference to few judgments of this Court where death  

sentences  were  commuted  to  life  imprisonment,  such  as

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Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC  

230, Sahdeo v. State of U.P. (2004) 10 SCC 682, Swamy  

Shraddananda v. State of Karnataka (2007) 12 SCC 288,  

Shankar  Kisanrao  Khade  (supra),  Haresh  Mohandas  

Rajput (supra), Rajesh Kumar v. State (2011) 13 SCC 706,  

Amit v. State of U.P. (2012) 4 SCC 107, etc.   

33. PW8 and PW9 heard the cries of the minor boy during  

the  midnight  of  12.01.2008  and after  going  through their  

evidence they reverberate in our ears.  Injury Nos.1, 3 to 5  

were inflicted by hard and blunt object, while injury no.2 was  

caused by sharp cutting edge and injury no.6 was caused by  

hard  and rash  object,  over  and above,  the  offence under  

Section 377 also stood proved.  The murder was committed  

in an extremely brutal, grotesque, diabolical and dastardly  

manner and the accused was in a dominating position and  

the victim was an innocent boy, the only son of his mother.  

Accused was aged 35 years when the crime was committed  

that is he was a fully matured person.  Life of a boy, the only  

son of PW7, the mother, was taken away in a gruesome and

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barbaric  manner  which  pricks  not  only  the  judicial  

conscience but also the conscience of the society.   

34. Legislative  policy  is  discernible  from  Section  235(2)  

read with Section 354(3) of the Cr.P.C., 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. 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  

of  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.

35. The appeals are, accordingly, disposed of.

……………………………..J.

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(K. S. Radhakrishnan)

.….………………………...J. (Vikramajit Sen)    

New Delhi, February 20, 2014.