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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL   APPEAL NOS. 1110-1111 OF 2015   

Dattatraya @ Datta Ambo Rokade                 …Appellant

VERSUS

The State of Maharashtra                   …Respondent

J U D G M E N T

INDIRA BANERJEE, J.

1. These appeals are against the final judgment and order dated

21/24/25-3-2014  of  the  High  Court  of  Judicature  at  Bombay  in

Criminal Appeal No. 1202 of 2013/Criminal Confirmation Case No.6

of 2013 whereby the High Court has confirmed the conviction of the

appellant under Sections  302,  376(2)(f),  377,  363,  364,  367 and

201 of the Indian Penal Code, as also under Sections 3, 4, 5(i) (l)

and  (m)  of  the  Protection  of  Children  from Sexual  Offences  Act,

2012 (hereinafter referred to as ‘POCSO’) and,  inter alia, affirmed

the sentence of death imposed on the appellant.  

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2. The facts  giving rise  to  these appeals  are abhorrent.   The

Complainant  and  his  wife  being  the  second  Prosecution  Witness

(PW) resided at Room No.3 in the ground floor of Om Sai building,

near the Shivsena Office in  Koparigaon,   with their  son aged 10

years and two daughters aged 7 years and 5 years respectively.   

3. It is the case of the complainant that he and his wife (PW 2),

used  to  go  to  work,  leaving  the  three  children  at  home.   On

22.1.2013, PW 2 had to go to her paternal home to visit her father.

When PW 2 returned home around 2.00 p.m. she found that her

youngest daughter, being the victim, was not at home.   Assuming

that the victim might be playing somewhere nearby,  PW 2 left for

work  at  around  2.15  p.m.   At  around  4.30  to  5.00  p.m.  PW  2

received a  call  on  her  mobile  phone from one Avaghade Mama,

informing her that the victim was not at home.  PW 2 thereafter

returned home, and started searching for the victim.  She contacted

the complainant as also her own parents on mobile.

4. Thereafter the complainant, PW 2, her mother and brother all

started looking for  the  victim in  Koparigaon,  Vashi  and  Sanpada

areas.   As  the  victim could  not  be  found,  a  missing  report  was

lodged with the APMC Police Station.    

5. When the complainant and his wife (PW 2) reached home at

around 2.30 a.m. after frantic efforts to trace the victim, they found

the victim lying nude and still in front of the door of their tenement,

with no movement.

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6. The complainant  contacted the police  from his  mobile  and

told the police that his daughter (the victim) had been found lying

still, without any movement.   The complainant and PW 2 took the

victim to the Navi Mumbai Municipal Corporation Hospital,  where

the Medical Officer examined the victim and declared her ‘brought

dead’.    

7. In the hospital the complainant noticed injuries on the body of

victim.   There was redness on both  shoulders and both thighs of

the victim,  and laceration in  the vagina and anus of  the victim.

Accompanied  by  the  Inspector  of  APMC Police  Station,  who  had

come to the hospital for investigation, the complainant went to the

APMC Police Station and lodged a First Information Report,  on the

basis  of  which  Crime  No.120/2013  was  registered  by  the  APMC

Police Station.    

8. An  inquest  of  the  body  of  the  victim  was  conducted  and

photographs  of  the  body  were  taken.   There  were  injuries.  The

vagina  and  the  anus  of  the  deceased  victim was  lacerated  and

blood was oozing out.   On 23.1.2013, Dr. Bhushan Jain, assisted by

Dr.  Prerna  Thakur,  conducted  post  mortem  examination  of  the

deceased victim.    Dr.  Bhushan Jain  also  noticed injuries  on the

private part, anus, below the eye lid and above the upper lip.  He

collected the blood of the deceased victim for DNA mapping and

grouping and also collected her vaginal and anal swab for detection

of sperms.  The samples were kept for chemical analysis.

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9. Dr.  Bhushan  Jain  who  prepared  the  post  mortem  report

(Exhibit  48)  opined  that  the  cause  of  death  of  the  victim  was

asphyxia  due  to  smothering,  associated  with  head  injuries  and

sexual assault.   Dr. Bhusan Jain deposed that all  the five injuries

were possible by repeated sexual acts and forceful penetration.  He

opined that all these injuries were sufficient to cause instant death

in the ordinary course.   

10. In  the  meanwhile,  on  23.1.2013  investigation  commenced.

PW 26 was the Investigating Officer.  on 23.1.2013 at about 7.15

p.m., Panchnama (Ex.30) of the place where the deceased victim

was  found,  was  recorded  in  the  presence  of  one  Parashuram

Mahadu Thakur, who deposed as the tenth prosecution witness (PW

10).   A plastic bag of Surf Excel with plastic and two pieces of CDs

were found on the spot.  These were separately seized and packed

and sealed under Panchnama (Ex.30).

11. The accused-appellant along with his wife Asha (PW 18) two

sons Rupesh and Mahendra (PW 19), two daughters, Manisha and

Nisha (PW 20) and a grandson Omkar used to reside in Room No. 8

of the same building, adjacent to the tenement of the complainant.

12. The accused-appellant had been unemployed for four years,

and sat idle at home. Omkar  the  grandson  of  the  accused-

appellant used to be at school from 12.00 noon to 6.00 p.m.  All

other family members of the accused-appellant used to leave for

work during the day. The accused-appellant used to stay at home

alone.

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13. It is the case of the prosecution that on 22.01.2013, in the

afternoon,  the  accused-appellant  took  the  victim  to  his  house,

raped her, had unnatural sexual intercourse with her causing her

head injury and smothering her, as a result of which she died.  On

the  same night  at  around 2.00  a.m.,  the  accused-appellant  had

gone outside the house and on 23.01.2013, the accused-appellant

went to the house of his brother at Kamothe without informing his

wife, Asha (PW 18).  On 24.01.2013 at about 07.30 p.m., PW 18 i.e.,

wife of the accused-appellant found the accused-appellant was in

tension and asked him to go to their family doctor.

14. On  24.01.2013  at  about  7.30/8.00  p.m.,  PW  7  being  the

Family Doctor, examined the accused-appellant and found that the

accused-appellant was tensed and his blood pressure was high. The

Head Constable, Gejage,    (PW 15) who had been making inquiries

from the residents of Om Sai Building, had left his mobile number

with the residents of the building including Mahendra (PW 19), the

son of the accused-appellant so that they could contact him if they

got any information with regard to the incident.

15. It was the case of the prosecution that the accused-appellant

used to force himself on his wife and have sexual intercourse with

her without her consent two to four times a week. Furthermore, in

2004, when the accused-appellant and his  family  members were

residing at Village Dudhanoli, the accused-appellant had outraged

the modesty of a  lady, Suvarna (PW 6) while she was attending to

the call  of  nature.   It  is  alleged that the accused-appellant was

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assaulted  by  villagers  because  of  the  aforesaid  incident.   The

accused-appellant  and  his  entire  family,  therefore,  had  to  leave

Village Dudhanoli forever.

16. The prosecution has alleged that considering the antecedents

of the accused-appellant and his conduct after the incident, PW 19

suspected that the accused-appellant might be the culprit who had

committed the ghastly crime.

17. On 24.01.2013, PW 19 contacted the Head Constable, Gejage

(PW 15) and told him that he suspected the accused-appellant of

being guilty. Thereafter, on the night of 24.01.2013, the said Head

Constable, Gejage, (PW 15) and Senior Police Inspector, Kambale

took the accused-appellant to the office of Crime Branch for inquiry.

On 25.01.2013, the accused-appellant was arrested and the clothes

on his person, i.e, blue coloured full pants,  Bermuda pants and a

yellow shirt  were seized under  panchnama, which  is  marked Ex.

(Exhibit)  28.   On  25.01.2013,  the  Investigating  Officer,  Police

Inspector, Bhong, being the 26th Prosecution Witness (PW 26),  went

to  the  house  of  the  accused-appellant  along  with  a  team  from

Forensic  Science  Laboratory   and  searched  the  house  in  the

presence of panchas, the Forensic Laboratory team  and daughter

of the accused-appellant, Nisha  (PW 20).

18. Three cushion covers from the Sofa, a cloth for cleaning the

floor and a sari used as a bed-sheet, all stained with blood, were

seized. On 25.01.2013 itself, the accused-appellant was examined

by Dr. Tambe (PW 8), who found that the accused-appellant was in

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sound physical and mental condition.  On 26.01.2013, the accused-

appellant  made a  statement  in  the  presence of  Panchas  on  the

basis  of  which which blood stained white  coloured plastic  gunny

bag,  blood stained orange coloured shirt  and black pants  of  the

deceased were recovered from the debris near Om Sai Building.

19. The complainant and his wife being the parents of the victim,

identified her clothes.  It is alleged that on 27.01.2013, Vinod and

Sanjay being the 4th and 5th Prosecution Witnesses approached the

Investigating  Officer,  Bhong  (PW  26)  and  told  him  that  on

22.01.2013,  they had a meeting in  the office of 10th Prosecution

Witness  (PW 10),   Parshuram,  which  was  situated  in  a  building

about 15 feet away from Om Sai Building.  These witnesses told the

police that after they came out of the office at about 4.30 p.m they

were standing under a parking shed and talking.  At that time, they

saw a short old man carrying a white bag coming from the side of

the staircase and going into a lane. The man kept the bag in the

lane which was in front of the parking shed.

20. PW 4 and PW 5  identified the accused-appellant, as the same

person, who had kept the bag in the lane, in a test identification

parade conducted by the Executive Magistrate, Ratnanjali (PW 21).

This  very  bag  was  recovered  at  the  instance  of  the  accused-

appellant  under  Panchnama  and  packed  in  a  packet  (Ex.35  and

Ex.36).  Both PW 4 and PW 5 identified the bag as the same bag

which had been carried by the accused-appellant and dumped in

the lane.

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21. It  is  stated that  on  29.01.2013,  the accused-appellant  was

produced before Dr.  Thakur,  the Casualty Medical  Officer in Navi

Mumbai  Municipal  Corporation  Hospital  (PW  16).   Dr.  Thakur

collected blood of the accused-appellant in two plastic containers

provided  by  the  Forensic  Science  Laboratory,  sealed  the  packet

containing the plastic  containers,  filled in the identification form,

attested  the  photograph  of  the  accused-appellant  and  obtained

thumb impression of the accused-appellant on identification form

22. The clothes of the accused-appellant, the white plastic bag,

the clothes of the deceased, sealed bottle containing blood of the

accused-appellant and his semen, hair and nail  were sent to the

Forensic Science Laboratory. The blood, hair, nail, vaginal swab and

anal  swab of  the  victim  were  also  sent  to  the  Forensic  Science

Laboratory.    The  reports  received  by  the  Investigating  Officer,

Bhong (PW 26) from the Forensic Science Laboratory showed that

D.N.A. profile of blood detected on the plastic bag, orange shirt of

the deceased and sari cum bed-sheet seized from the house of the

accused-appellant was identical  with D.N.A. profile of the deceased

victim.  The reports also showed that D.N.A. profile test of semen

conducted on underwear (Bermuda pants) of the accused-appellant,

and the vaginal  swab and anal  swab of  the victim matched the

D.N.A. profile of the accused-appellant.

23.  Charges were framed against the accused-appellant under

Sections  363,  364,  367,  377,  302,  201 and  376 or  alternatively

376(2)(f) of the Indian Penal Code.  Charges were also framed under

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Sections  3,  4  and  5  of  the  Prevention  of  Children  from  Sexual

Offences Act (hereinafter referred to as ‘POCSO).    The accused-

appellant pleaded not guilty and claimed to be tried. His defence

was of denial and false implication.

24. The prosecution examined 27 witnesses. No witnesses were

examined   on   behalf    of   the   accused-appellant.  Shorn  of

unnecessary  details,  the  first  prosecution  witness,  being  the

complainant  (PW  1),  deposed  that  when  he  returned  home  at

around 3.20 a.m. on 23.1.2013, after frantically searching for his

daughter, he found his daughter lying naked in front of the door of

his house.  She was still and there was no movement.  He informed

the  police.   The  victim  was  taken  to  Navi  Mumbai  Corporation

Hospital where she was declared dead.  PW 1 described the injuries

on the victim i.e. redness on both shoulders and both thighs.  He

said there was blood in the private part of the victim and there was

a laceration in the vagina.  The anus was swollen.  He identified the

complaint and stated that its contents were correct.  PW-1 identified

the following articles: -

a. A sealed packet which contained a black thread worn by the victim (Marked  as Articles 1 and 1A).

b. A sealed packet containing a plastic bag of surf excel powder of 1.5 kg (Marked as Article 2 and 2A).  

c. A packet containing two pieces of CD (Marked as Articles 3   and 3A.

d. One sealed packet containing an orange coloured shirt, which he identified as shirt of the victim. (Marked as Articles 25 and 25A)

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e. Another sealed packet containing black half pants which the witness identified as pants of the victim. (Marked as Articles 24 and 24A)   

25. PW-1 deposed that his daughter, the victim, had been raped

and murdered.  In his cross-examination, he admitted that he had in

course  of  his  examination  expressed suspicion  against  one Arun

Pawar.  Records reveal that the said Arun Pawar, a worker of the

Shiv Sena Party had been arrested, but later released and charges

against him dropped after investigation.   

26. The 2nd Prosecution Witness (PW 2), being the wife of the

complainant, and mother of the victim, in essence, reiterated what

her husband had said.  She also identified the black thread and the

clothes worn by the victim.  She also reiterated that initially  she

and her husband being the complainant had suspected that Arun

Pawar was the culprit.  She, however, denied that there had been

any compromise between the complainant and his wife (PW 2) and

the said Arun Pawar.

27. The  3rd Prosecution  Witness  (PW 3)  is  a  pancha,  who

signed on a panchnama at the hospital. She only put her signature

on the packets containing the thread and the clothes of the victim.

She also described the injuries on the victim.   None of the first

three witnesses have said anything to even suggest who could be

the culprit.  

28. The  4th Prosecution Witness (PW 4) who claims to run a

construction business,  stated that he had business dealings with

persons residing at Koprigaon.  On 22.1.2013 he had gone to meet

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Parshuram Thakur at the Shiv Sena Office at Koprigaon.  His friends

Sanjay Govari  and Devidas Dalavi,  a  resident  of  Airoli  were also

there at the office.  This witness deposed that after coming out of

the Shiv Sena Office, he, Sanjay Govari and Devidas Dalavi were

standing below a shed in front of a building near the said Office.

While they were standing below the shed, they saw an old man

come from the side of the staircase, holding a white bag, which he

kept in the lane which was in front of the parking shed.  The old

man was short  and except for Bermuda pants that he had been

wearing, he was bare bodied.   According to this witness, he along

with Devidas Dalavi and Sanjay Govari once again went to the office

of Parshuram Thakur after a few days, when Parshuram Thakur told

them about the rape and murder of a girl in a building in front of his

office, which had taken place on 22.1.2013.

29. This witness stated that on hearing of the incident, he told

Parshuram Thakur that on 22.1.2013 that he had seen an old man

going  into  the  lane in  front  of  the  shed under  which  they were

standing, with a bag.  Parshuram Thakur then told this witness to

inform this to the police.   On 27.1.2013, this  witness along with

Sanjay Govari who has also deposed as the fifth witness, went to

the police station, met the police officer and disclosed what he had

seen, which was recorded by the police.

30. Thereafter  on  7.2.2013,  this  witness  received  a  letter

informing him that he should meet the Tehsildar.  On 8.2.2013, this

witness along with Sanjay Govari and Devidas Dalavi went to the

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Tehsildar, and thereafter, along with another lady, went to Taloja jail

where he identified the accused-appellant as the person who had

kept the bag in the lane.

31. This witness identified a white colour plastic bag taken out

from a bag, marked Articles 23 A and  23.  He also identified the

Bermuda pants as the same pants worn by the accused-appellant.

In cross-examination, he said that the old man with the bag did not

arouse his suspicion.  If his suspicion had been aroused, he would

have gone to the police station the same day.  

32. The  5th Prosecution  Witness  Sanjay  Kamlakar  Govari

(PW  5) reiterated  what  had  been  stated  by  PW  4.   He  also

identified the plastic bag as the same one which had been dumped

in the lane by the accused-appellant.  He read out the description

printed in  the inner  side  of  the  plastic  bag “crystal  white  sugar

sulphiton Jawahar sugar hupari Kolhapur (Maharashtra State) India

S-30 sucrose  50 kgs.  2009-2010 best  before  3  years”.   In  cross

examination  this  witness  stated  that  he  had  not  seen  any

identification mark on the white bag on that day and he also stated

that when he saw the white bag, he did not have any suspicion.  He

reiterated that he had seen the old man dropping the white plastic

bag in the lane.   

33. The  6th  Prosecution Witness  (PW 6),  a  teacher  and  a

resident of Dudhanoli, Taluka Murbad, District Thane deposed that

the accused-appellant had tried to outrage her modesty when she

had gone to relieve herself in the open field in the year 1998 i.e.

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about 15 years before the present incident.  She said that she and

her husband had beaten up the accused-appellant and that night,

the accused-appellant left the village permanently.  The aforesaid

incident has no connection with the rape and murder of the victim.

In  cross  examination  she admitted that  she had not  lodged any

complaint against the accused-appellant.

34. The  7th Prosecution  Witness  (PW  7),  a  Homeopathic

Doctor, deposed that on 24.1.2013 at about 7 p.m. the accused-

appellant had visited her complaining of uneasiness.  She said she

noticed that the accused-appellant was suffering from tension and

his blood pressure was slightly high.  She thought that the accused-

appellant might  be  suffering  from  acidity  and  accordingly

prescribed medicines. The evidence of this witness does not by any

stretch of imagination,  establish the guilt of the accused-appellant

for the offence alleged.  

35. The 8th Prosecution Witness (PW 8) an Associate Professor

in Terana Medical College, Surgery Department deposed that on 25th

January,  2013  he  was  on  call  duty  at  Navi  Mumbai  Municipal

Corporation  General  Hospital.   On  that  day  he  examined  the

accused-appellant   who  had  been  brought  by  the  police.   On

examination,   the  accused-appellant   appeared  to  be  in  sound

physical and mental condition.  On examination of private part that

is  genital,  no  external  injury  was  found  but  “bilateral  scrotal

enlargement  was  seen”.   Apart  from that  there  was no external

injury.  Genital size was normal. There was no external deformity in

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genital.   Testicular  reflex  was  normal.  Penis  was  uncircumcised,

Smegma was absent.  There were no signs of sexually transmitted

disease.  There were no Injuries on glans penis.

36. This witness deposed that glance and sulcus was washed and

washed  material  was  collected  in  a  glass  bulb  for  examination.

Blood was collected for blood grouping and examination.  Samples

of pubic hair and scalp hair were also collected. There was nothing

to  suggest  that  the  patient  was impotent.  However,  the  witness

volunteered  that  on  physical  examination  it  was  not  possible  to

draw 100% conclusion about potency. The evidence of this witness

also does not contain anything material, that points to the guilt of

the accused-appellant , for the offence alleged.  

37. The  9th Prosecution  Witness  (PW  9), a  driver  by

occupation, is the Panch for the yellow shirt, blue pants and blue

Bermudas  under  the  pants  of  the  accused-appellant   which  had

been seized by the police.  His evidence reveals that these clothes

were found on the body of the accused-appellant  on 25th January,

2013 at about 1.45 P.M., that is, almost 48 hours after the incident.   

38. The  10th  Prosecution  Witness  (PW  10),  Parshuram

Mahadu Thakur, a Builder in the business of construction, owned an

apartment in a building in the ground floor of which there was a

Shivsena office.  He said that on 23rd January, 2013 at about 7.15

a.m., police officer Dighe called him near Om Sai Niwas.  PW 10

stated that he had shown the police officer the spot where the dead

body of the victim had been found.  By that time, the dead body

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had been removed.  He also deposed that at the spot, a bag of Surf

Excel and two pieces of CDs were found.  On the bag of Surf Excel

there were some blood stains.  The bag of surf excel and pieces of

CDs were separately  packed by the police.   The police recorded

spot panchnama. PW-10 identified his signature in the panchnama

and deposed its contents were correct.   

39. This witness deposed that PW Nos. 4, 5 and an agent Dalavi,

used to come to his office during the period between 19th January,

2013 and 22nd January,  2013.   On 22nd January,  2013,  they had

come to his office at around 2/2.30 P.M. and they were there in his

office till 4.30 p.m.   

40. This  witness  said  that  on  26th January,  2013  the  aforesaid

persons again came to his office for discussion in relation to a plot.

While talking to them, this witness told them that on 22nd January,

2013 there had been rape and murder of a five year old girl. The

police were inspecting a bag.  On hearing this, PWs 4 and 5 and

Dalavi  mentioned  that  they  had  seen  a  man  who  seemed

frightened, drop a bag.  This witness deposed that he had advised

the aforesaid persons to go and inform the police.  Thereafter, the

three persons left.

41. This witness stated that, on 27th January, 2013 he was called

by A.P.M.C. police station and his  statement was recorded.   This

witness also deposed that he knew the accused-appellant, who had

been residing in Room No.8 of Om Sai Niwas building as a tenant.

The family members of the victim were residing in Room No. 3 in

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the same building.  The tenement of the accused-appellant  and as

well as the deceased victim are in the ground floor of Om Sai Niwas

building.   

42. Significantly there are inconsistencies between the statement

of this witness and the statements made by PW 4 and PW 5, who

did not say that the man dropping the bag seemed frightened.  On

the  other  hand  they  said  that  the  man  did  not  arouse  their

suspicion.   

43. The 11th  Prosecution Witness (PW 11), Arvind Madhavji

Gajara  is  the  Panch  in  whose  presence,  the  tenement  of  the

accused-appellant was searched.  He deposed that on 25th January,

2013 he had gone to Koparigaon in connection with his business.

He saw that many persons had gathered near the Om Sai building.

It  was  about  5.00  p.m.   The  police  constable  Rane  called  this

witness. At that time the accused-appellant, a photographer and a

panch by the name of Patil were was also present.  At the request of

the police he agreed to act and acted as Panch.  The police took

him to room No.8 of Om Sai apartment. A police officer rang the bell

at the door. It was opened by a lady, who said that her name was

Nisha.  The police officer told Nisha that they wanted to search the

house and asked whether she had any objection.  Nisha replied that

she had no objection.

44. This witness said there was one room  which was partitioned

and there was a kitchen.  There was a sofa on which a bed sheet

was lying.  They noticed blood stains on the bedsheet.  There were

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also blood stains below the sofa set.

45. This witness deposed that one of the persons in the search

team scratched the blood stains to collect the dried blood.  In the

presence of this witness, the blood stained sheet on the sofa set, a

cloth for cleaning the floor tiles lying on the window, a saree used

on the bed as a bed sheet were also packed.  In all six articles were

seized and six labels were prepared.  A bag in which the articles

were packed was separately marked.   The evidence of this witness

only establishes that the tenement of  the accused-appellant was

searched with the consent of the accused-appellant’s daughter and

some articles seized. During the search blood stains were noticed,

which were scraped for examination.

46. The  12th Prosecution Witness (PW 12), named Mustaqali

Asgarali  Ansari,  a  Carpenter  by  profession  stated  that  on  26th

January, 2013, he went to fill petrol in his motor-cycle at a petrol

pump near APMC police station at about 3.00 p.m.  At that time, a

police  constable,  by  name Mandole,  called  him and  told  him to

come to APMC Police Station. He went to the APMC police station

along with the constable.  In the police station, one police officer by

name Bhong and another panch More, one lady police and three

police constables were present.  The accused-appellant,  whom this

witness identified in Court, was also present in the police station.

47. According  to  PW  12,  in  the  police  station,  the  accused

appellant made a statement that he had kept the dead body of the

girl in a bag and kept the said bag behind the staircase.

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48. PW 12 deposed that the accused-appellant  was taken to the

building and from inside he took out clothes from the white bag,

the capacity of  which might be 50 to 60 kgs.   He identified the

clothes namely the black half pants and an orange shirt.  PW 12

deposed that the clothes were taken out from the bag.   

49. Significantly even though this witness (PW12) was a panch to

the seizure of the white bag, the printing inside the bag which the

PW claims to have seen, were not noticed by him.  

50. The 13th  Prosecution Witness Dr. Bhushan Vilasrao Jain

(PW 13) conducted the post mortem examination on the body of

the victim.  He noticed the following injuries:

“(1)  Lacerated  wound  seen  over  posterior  vaginal wall with width 0.5 c.m. muscle deem hymen torn at 6 O’ clock position reddish blood oozes out.  

(2) Lacerated wound over right lateral vaginal wall 1 x 0.2 c.m. muscle deep reddish, blood oozes out.

(3) Two lacerated wounds seen over anal region at 12 O’clock and 3 O’clock position of size 2 x 1 c.m. mucosa  deep  and  1  x  0.5  c.m.  mucosa  deep respectively reddish.

(4) Two  tiny  abrasions  seen  over  left  maxillary region  below  eyelid  laterally  0.5  x  0.3  c.m.  each reddish.

(5) Aberated  contusion  over  upper  lip  mucosal aspect in a middle region 2.5 x 1.5.”

51. He deposed that all the injuries were ante-mortem in nature

and he further deposed of internal examination.

“2. On internal examination I noticed haemorrhage under scalp  over  occipital  region  5  x  3  c.m.  reddish  and

19

meninges were congested. Brain matter congested and -oedmatous.  On  cut  section  petechial  haemorrhages seen over white matter.  Both lungs were congested and oedematous with petechial haemorrhages.  

3. Thoracic cavity contained dark fluid blood. Stomach contained 200 cc. semi digested rice, dal sabu like food material.  

All visceral organs were congested.”

52. This witness deposed that they kept blood for DNA mapping.

Blood for grouping, nail clipping of both hands and plucked scalp

hair  for  grouping and detection of  foreign body.   They also kept

vaginal  and anal  swab for  detection of  sperms as also blood for

chemical analysis. He opined that the cause of death  is asphyxial

death due to smothering associated with head injury and sexual

assault.

53. This witness deposed that the injuries mentioned in column

17 of the postmortem report were possible by repeated sexual acts

and forcible penetration of the penis in the vagina.  The victim may

have suffered some of the injuries while she was trying to rescue

herself from the clutches of the culprit.   The injuries referred to as

injury  Nos.  4  and  5  in  the   postmortem report  may  have  been

caused by the culprit by pressing the mouth of the victim with his

hands.  The injury described in the Report as injury No.4 may have

been caused by finger nails.   

54. This witness deposed that the injury shown in the postmortem

report as injury No.19 over the head and under the scalp could have

been suffered if the head had hit any hard object while the act of

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rape was committed.

55. PW-13 deposed that the injuries shown as injury Nos. 1 to 5

were sufficient to cause instant death.  The injuries shown as injury

Nos. 4 and 5 could also cause death.   The Cyanosis in finger nails,

petechial over brain and lungs and dark fluid blood were cardinal

signs of asphyxia.   

56. In cross-examination, PW 13 said that there was no injury to

the brain substance.  However, death was possible by reason of the

injuries that were seen. He, however, said in his cross-examination

that there was hemorrhage.  This witness deposed that pressing of

mouth and nostril causes smothering which leads to asphyxia and

consequential death.  In cross-examination, this witness said that

he had not taken blood sample of accused-appellant for the purpose

of  DNA  as  blood  sample  was  not  produced  before  him.   The

evidence  of  this  witness  clearly  establishes  that  the  victim  was

raped and killed.  There is nothing in his evidence that implicates

the accused-appellant .   

57 The 14th Prosecution Witness (PW 14), a neighbour of the

complainant and the accused-appellant deposed that the accused-

appellant  had two daughters, two sons and one grand son, none of

whom stayed at home between 12 and 6 p.m. She deposed that the

accused-appellant used to stare at her by opening the door slightly

or  by looking into  the mirror  and when she told this  to  another

neighbour, that neighbour told her that the accused-appellant  was

in the habit  of  staring at women. She said that she did not say

21

anything to the accused-appellant, considering his old age.  In cross

examination, this witness deposed that the  accused-appellant  did

not whistle at women nor did he tease the women of the building.

He used to keep his door open and look into a mirror.  Her evidence

in  cross-examination  reveals  that  the  accused-appellant  was

arrested on 25th January, 2013 and on 26th January, 2013, one Arun

Pawar was arrested.  This witness’s evidence, at best raises doubts

about the character of the accused-appellant.

58. The  15th Prosecution Witness (PW 15) a Head Constable

of the Crime Branch deposed that the Senior Police Inspector called

him and his colleagues for the purpose of investigation in relation to

the murder of the victim. He deposed that he reached Koparigaon

on 23rd January, 2013.  He visited each room in Om Sai Building and

interrogated the residents.  He had also given his mobile number to

the residents so that he could be contacted in case any information

was forthcoming.

59. This  witness  deposed  that  on  24th January,  2013,  PW  19

Mahendra Rokade, son of the accused-appellant called him up and

told him that he was suspecting the involvement of his father, the

accused-appellant, in the rape and murder of the victim.

60. The PW-19 allegedly told this constable that on the night of

22nd January, 2013 his father was stressed up.  He also said that on

an earlier occasion his father had tried to outrage the modesty of a

woman at his native place Dudhanoli.  This witness further stated

that on the night of  24th January,  2013 this witness and another

22

police constable alongwith senior police inspector went to the Om

Sai  Building  on  receiving  secret  information  that  the  accused-

appellant  had  come  home.   According  to  this  witness  the  wife,

daughters and grandson of the accused-appellant and the accused-

appellant were at home at that time.  The accused-appellant was

found in stress.  The wife of  the accused-appellant said that the

accused-appellant  had  outraged  the  modesty  of  a  woman  at

Dudhanoli.  The accused-appellant  was taken to  the  office of  the

crime  branch.   On  25th January,  2013,  the  accused-appellant

confessed that he had committed the crime.  From the evidence of

the witness it can only be deduced that PW-19 had called him up

and expressed suspicion of involvement of the his father in the rape

and murder of the victim.  

61. The 16th Prosecution Witness (PW 16), Dr. Prerana Anant

Thakur  deposed  that  she  had  personally  collected  the  blood  of

accused-appellant and handed over the sealed container along with

the prescribed identification form which she had filled in herself, to

the police. She handed over the prescribed form and sealed packet

containing blood sample to police Naik B. No.1761 who took that

sample to Kalina Forensic Science Laboratory.

62. The  17th Prosecution Witness (PW 17),  the  owner  of  a

photo studio named Balaji Photo Studio deposed that he went along

with the police to take photographs of Room No.8 of Om Sai Niwas.

On 25th January 2013, he took photographs of the sofa and pillow

lying  on  the  sofa  on  which  there  were  blood  stains.  He  took

23

photographs of the bed and the floor under the sofa where there

were blood stains.  His camera was a digital camera.  He got the

photographs printed and he handed over  the photographs along

with memory card to the Investigating officer of the police station.

He said that he was paid Rs.350/- for the photographs.  The PW-16

and PW 17 have also not implicated the accused-appellant.

63. The  18th  Prosecution Witness (PW 18), Asha Dattatraya

Rokade, wife of the accused-appellant said that she was residing in

Room No.8 of  Om Sai  Building along with the accused-appellant,

their  two sons,  two daughters  and a grand son (son of  younger

daughter,  whose  husband  had  expired).   She  deposed  that  the

accused-appellant  was  unemployed  and  stayed  at  home  alone,

while the other members of the family went out to work and the

grand child went to school.  She said that on 22nd January, 2013

when she came back from work at around 7.30 p.m. she heard that

the victim was missing. She had dinner at about 1.00 a.m. after all

the family members returned, after which they went to sleep.  She

deposed that after 2.00 a.m., her husband went out of the house.

On 23rd January, 2013 at about 7.00 a.m. police knocked at the door

of the house and inquired about the victim.  On 23rd January, 2013

she left for work.  When she left,  her husband i.e.,  the accused-

appellant and their daughter Nisha (PW 20) were at home but when

she  came  back  home  at  about  7.30  p.m.  she  did  not  find  her

husband.  On inquiry, her daughter Nisha (PW 20) told her that the

accused-appellant  had gone to  his  brother’s  house.   She further

24

deposed that on 23rd January,  2013 she had dinner and went to

sleep.  On  24th January,  2013  when  she  went  out  to  work  her

husband i.e. the accused-appellant came back.  After returning at

about  7.30 p.m.,  she made tea  and served  tea  to  the  accused-

appellant.  While serving tea she asked the accused-appellant why

he  was  tensed  up.   He  replied  that  he  was  not  feeling  well.

Thereafter she told him to go to hospital.  The accused-appellant

went to Dr. Nilima Pawar.

64. This  witness deposed that after  her  husband,  the accused-

appellant came back from the doctor, he told her that he had raped

and killed the victim.  Thereafter at about 8.00 p.m. police took the

accused-appellant  for  inquiry.  On  25th January,  2013,  she  was

informed  by  her  son  Mahendra  that  police  had  arrested  her

husband.  He said that the accused-appellant had confessed to the

crime  before  the  police.   The  evidence  of  this  witness  is  of

importance  since  she  has  deposed  that  the  accused-appellant

confessed to her that he had raped and killed the victim.  

65. Nothing much of substance has transpired from the evidence

of the  19th Prosecution Witness (PW 19), Mahendra, son of the

accused-appellant,  except  that  he  had  called  up  the  police  and

informed the police that he suspected the involvement of his father,

the accused-appellant, in the rape and murder of the victim.

66. This witness reiterated the work schedule of the members of

the family and school  hours of  his nephew. He said that he had

heard that the victim had gone missing and had later heard that the

25

victim  had  been  raped  and  murdered.  The  police  came  to  the

building to make inquiries. This witness further deposed that when

he had heard that his  father had suddenly gone to Kamothe he

became suspicious, in view of the past history of his father involving

an  incident  at  Dudhanoli  village.  He  further  said  that  on  25th

January, 2013, the police contacted him and informed him that his

father had confessed to the crime. He also identified the articles

seized as Articles Nos.18-A, 19-A and 20-A.  In cross examination,

this deponent deposed that on 23rd January, 2013 he was sleeping

on the bed of the inner room having partition. At that time he did

not find or see any stain on the bedsheet.  The bedsheet used to be

changed every 4 or 5 days and covers of sofa set and cushion after

every two to three months.  He also deposed that the flooring of the

house is washed and cleaned daily.   

67. The  20th Prosecution Witness (PW 20), Nisha, daughter of

the  accused-appellant   deposed that on 25th January, 2013, in the

evening, police came to their house with experts from the Forensic

Laboratory  and  a  photographer.  After  taking  her  permission,  the

police seized sofa cover, cushion cover, bedsheet and duster cloth.

The expert found blood stains in the gap  between the tiles on the

floor and on the sofa cover.   The sofa cover,  cushion cover and

bedsheet were stained with blood.  All these articles were seized

and  the  police  obtained  her  signature  and  the  signature  of  her

father. She identified the sofaset cover, cushion cover, bed sheet

and the duster cloth for cleaning the floor.  She also identified the

26

Bermudas of her father.  She stated that when she was a young

child she came to know that her father had caught the hand of a

woman and therefore, the family had to leave the village Dudhanoli.

In cross examination, this witness said that her father never spoke

to her unnecessarily. She said that she cleans utensils and cleans

floor  on  every  alternate  day.  She  said  that  she had  not  noticed

anything  abnormal  on  sofa,  cushion  or  on  the  bed.   Nothing

significant has transpired from the evidence of this witness except

that the tenement of the  accused-appellant  had been searched in

the presence of forensic experts and a photographer. Photographs

of the tenement were taken, some articles seized and samples of

blood scrapings collected for examination.  

68. The  21st Prosecution  Witness  (PW  21), Ratnanjali

Ravindra  Sarnobat,  deposed  that  he  had  conducted  the  Test

Identification  Parade (TIP)  and the witnesses Bhagat,  Govari  and

Dalavi (PW-4 & PW-5) had identified the accused-appellant.   

69. The 22nd Prosecution Witness (PW 22), the Sub-Inspector

of police at AMFC police station deposed that on 22nd January, 2013

he was on night duty from 9.00 p.m. onwards till 9.00 a.m. At about

9.15 a.m. the complainant and his wife gave a missing complaint in

respect of the victim. At about 2.30 a.m. when he was patrolling out

of the police station, he received a telephone call from the APMC

police  station  that  the  missing  girl  had  been found but  with  no

movement.  She  was  being  taken  to  the  Vashi  Navi  Mumbai

Municipal Corporation Hospital (NMMC). The doctor declared the girl

27

was dead after which the complainant filed an FIR.  There is nothing

in the deposition of this witness which establishes or points at the

guilt of the accused-appellant. He only narrated the facts leading to

the missing report and the first information report, the condition of

the  dead  body  of  the  victim,  the  seizure  of  articles  taking  of

photographs etc.

70. The  23rd Prosecution Witness (PW 23) deposed that he

had  carried  blood  samples  of  accused-appellant  to  the  Forensic

Science  Laboratory,  Kalina  for  DNA  profiling  along  with

identification.

71. The 24th Prosecution Witness (PW 24) attached to APMC

police station as Police Naik deposed that he brought back the DNA

kit from the Forensic Science Laboratory, Kalina.

72. The  25th Prosecution Witness (PW 25),  is  the Assistant

Investigating  Officer  in  the  case.  She  deposed  that  as  Assistant

Police  Inspector  she had investigated the  case.  On  23rd January,

2013 at about 5.00 a.m. she visited the spot and started making

inquiries.  She  recorded  the  statement  of  the  mother  of  the

deceased victim (PW 2).

73. On 26th January, 2013 she recorded the statements of some

witnesses and recorded the supplementary statement of the mother

of the deceased.  She also recorded the statements of the wife of

the accused-appellant, two daughters of the accused-appellant  and

other witnesses. Nothing significant, which points to the guilt of the

accused-appellant has transpired from the evidence of PW-23, PW-

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24 and PW-25.  

74. The  26th Prosecution Witness (PW 26), the Senior Police

Inspector  and Investigating Officer deposed that he reached Navi

Mumbai  Municipal  Corporation  Hospital  at  about  3.00  a.m.  after

which he took the complainant to the police station and recorded

the FIR. He deposed that on the basis of the FIR, Crime No.20 of

2013 was registered.  PW-26 deposed that on 23rd January, 2013, he

sent Police Inspector Lavand to the spot and he recorded the spot

panchnama (Exh.30).  He deposed that initially, the parents of the

victim had expressed suspicion against one Pawar who was taken in

custody.   On  investigation  nothing  was  found  against  him  and

accordingly  report  under  Section  169  of  the  Criminal  Procedure

Code was filed.  On 24th January,  2013 this  witness  recorded the

statements of some witnesses. On 25th January, 2013, staff of the

crime branch produced the  accused-appellant  before this witness.

This witness interrogated the accused-appellant and arrested him

under panchnama.  The clothes he was wearing at the time of his

arrest was seized under panchnama.  The accused-appellant was

wearing blue full  pants, Bermuda pants and a yellow shirt.   This

witness further deposed that on 25th January, 2013 he called a team

from the Forensic Science Laboratory who seized six articles from

the house of the  accused-appellant   that is Article Nos.17-A, 18-A,

19-A, 20-A, and 21-A.

75. The seized articles were cushion covers, a cloth for cleaning

the floor,  a saree used as a bed sheet which were sealed in six

29

packets.  He  deposed  that  experts  from  the  Forensic  Science

Laboratory collected dried blood from the floor tiles beneath the

sofa. The photographs of the sofa and other articles were taken at

the time of recording the spot panchnama. PW-26 further stated

that on 25th January, 2013 he got the accused-appellant medically

examined and he also recorded the statements of  witnesses.  On

26th January, 2013 the accused-appellant  offered in the presence of

two panchas to show the place where he had put the clothes of the

victim in a bag, which was the debris was by the side of staircase of

the Om Sai Building.  The statement of the accused-appellant was

recorded by this witness.  The statement so recorded was signed by

Panchas and the accused-appellant  affixed his  thumb impression

thereon.   After  that  the accused-appellant  took the Investigating

Officer (PW 26) and others to the side of the staircase of the said

building where debris were lying and he took out a plastic bag in

which an orange shirt and black pants were found.  The accused-

appellant told the Investigating Officer that the shirt and the pants

were  the  clothes  of  the  victim.  This  witness  deposed  that  the

parents of the victim  were called and they identified the clothes of

the victim.  There were blood stains on the shirt,  pants and the

plastic bag. The articles were seized and sealed in the presence of

Panchas,  whose  signatures  were  obtained  on  the  panchanama

recorded on the spot.  

76. This  witness  deposed  that  on  27th January,  2013  three

witnesses Devidas, Vinod  Bhagat and Govari came to the APMC

30

police station and got their statements recorded. Thereafter a test

identification  parade  was  arranged.   On  27th January,  2013  he

seized the memory card produced by the photographer Rajesh Joshi

(PW 17). From the evidence of this witness, it transpires that blood

samples collected for  DNA profile were duly  sent  to the forensic

laboratory.  This witness deposed that during the investigation, it

transpired that  the  accused-appellant   had raped the victim and

murdered her.  After completion of investigation, this witness filed

chargesheet.

77. The  27th Prosecution  Witness  (PW  27),  an  Assistant

Chemical Analyzer in the Forensic Laboratory, Kalina deposed that

he went to APMC Police Station along with his team consisting of

four persons.  The team went to Om Sai Building at Koparigaon.

The accused-appellant   was also present along with the Police.  In

the  tenement  of  the  accused-appellant   there  was  one  hall  and

kitchen and in the said hall there was a partition. When the door

was opened they saw a sofa on the right.  On careful inspection,

they  found  there  were  three  cushions  on  the  sofa  and  on  the

cushion covers there were blood stains of the diameter 1 cm. to 2

cm. approximately.  This witness deposed that he tested the blood

stains  with  the  help  of  phenolphthalein  and  confirmed  that  the

stains  were  bloodstains.   He  deposed  that  three  cushion  covers

which  were  bloodstained  were  removed  from  the  cushion  and

handed over to the Investigating Officer.  This witness deposed that

he saw that there were blood stains on the floor near the middle leg

31

of  the  sofa.   He  tested  those  stains  with  Phenolphthalein  and

confirmed that they were blood stains.  Dry blood was scraped and

collected with the help of cotton cloth and that cotton cloth was put

into an envelope which was packed in a polythene bag and handed

over to the Investigating Officer.  This witness has deposed that the

team saw bloodstained cloth on the window which was also tested

and given to the Investigating Officer.  There was one cot in the

inner side of the partition.  The bed was covered with a saree.  He

collected the scrapings of the blood stains on the saree for testing.

It was confirmed that those were blood stains but as the test of the

semen identification  consumes  much  time,  the  saree  cover  was

handed over to the IO with the instructions to properly seal each

article and send the same to the Forensic Science Laboratory.  This

witness also identified the articles.

78.   As observed above, the oral evidence of PW-1 and PW-2 being

the parents of the deceased victim do not even suggest culpability

of  the  accused-appellant.   The  3rd Prosecution  Witness  only  a

Pancha  who  put  her  signatures  on  bag  containing  thread  and

clothes of the victim.   The 4th and the 5th Prosecution Witnesses

have claimed that they had gone to visit  Parshuram Thakur at the

Shiv Sena Office at Koprigaon on the day of the incident.  After they

came  out  of  the  office,  they  were  standing  below  a  shed  and

talking,  when they  saw an  old  man  come from the  side  of  the

staircase of the building, holding a white bag which he kept in the

lane in front of the parking shed.  These witnesses identified the

32

accused-appellant  as  the  man  carrying  the  bag.   They  also

identified the bag as the bag which the accused-appellant had been

carrying.   

79.    There are, however, serious loopholes in the evidence of these

two  witnesses.   First  of  all,  these  witnesses  as  per  their  own

statement saw a man carrying a white bag. They did not go near

the bag.  No reliance can be placed on the purported  identification

by the witnesses of the bag produced by the police, as the very

same bag which these witnesses had seen the accused-appellant

carrying.   Furthermore,  one  of  the  witnesses  stated  in  cross-

examination that they did not suspect anything when they saw the

man carrying the bag.   If the body of an eight year old child were

being carried in a bag that would have aroused some suspicion.

80.  In any case,  these witnesses deposed that the bag was left in

the lane opposite the parking shed,  after they came out of the Shiv

Sena Office building, which was around 4.30 p.m.   The naked body

of the deceased victim was first discovered in front of the door of

the tenement of the complainant at around 2.00 a.m. at night.  If

the body had been dumped outside the door in the early evening,

the body would surely have been noticed earlier.     

81.  The evidence of PW 6 that the accused-appellant had tried to

outrage her modesty about 15 years ago, has no bearing to the

incident of rape and murder of the deceased victim.   Admittedly

this  witness  had  not  lodged  any  police  complaint  against  the

accused-appellant.

33

82.  The evidence of PW7 is also of no relevance.  This witness, a

Homeopathic  Doctor,  deposed  that  on  examining  the  accused-

appellant,  she  found  him  suffering  from  tension  and  his  blood

pressure was slightly high.  As per her own evidence she thought

that he might be suffering from acidity.    

83.  Similarly the evidence of PW 8, a doctor who had examined the

accused-appellant, does not contain anything material to establish

the guilt of the accused-appellant for the offence alleged.   

84.  The 9th Prosecution Witness is only a Panch in whose presence

the clothing of the accused-appellant was seized.   He stated that

these  were  the  clothes  which  the  accused-appellant  had  been

wearing  about  2  days  after  the  incident.   The  10th Prosecution

Witness only corroborated that the 4th and 5th witnesses had come

to his office and they had later told him what they had seen on 22nd

January, 2013.    

85. Even  though,  as  observed  above,  there  is  nothing  in  the

evidence of any of the witnesses, except the evidence of PW-12 and

PW-18 and the weak evidence of the PW Nos. 4 and 5 purported to

be  corroborated  by  the  PW-10,  to  prove  the  accused-appellant

guilty of the offences alleged,  the forensic reports along with the

extra-judicial confession made by the accused-appellant to his wife

PW-18, clearly establishes the guilt of the accused-appellant.

86. The examination of the reports of the Directorate of Forensic

Laboratories, State of Maharashtra, Home Department, Vidyanagari,

34

Kalina,  Santa Cruz (East)  Mumbai being Ex.  No. 22 to 25 and in

particular the examination report in Ex.25 indicates that DNA profile

of the blood detected on the plastic bag and the clothes and those

obtained from the nails of the victim are identical and are from one

and the same source of female origin.   The DNA profile of semen

detected on the underwear (Bermudas), the bedsheet, vaginal swab

and anal  swab of the victim are identical  and from one and the

same source of male origin. The DNA analysis establishes beyond

reasonable  doubt  that  the  victim  was  raped  by  the  accused-

appellant.

87. By a judgment and order delivered on 6th and 7th June, 2013,

the  learned  Special  Judge  (Protection  of  Children  from  Sexual

Offences Act),  Thane convicted the accused-appellant of offences

under Sections 363, 364, 367, 302, 201, 376, 376(2)(f) and 377 of

the Indian Penal Code read with Sections 4 and 6 of the Protection

of Children from Sexual Offences Act, 2012.

88. On 7th June, 2013, the accused-appellant was produced in

Court and heard on the question of sentence after which the

Trial Court ordered as follows:

“1. Accused Dattatray @ Datta Ambo Rokde is hereby convicted of the offences punishable under Sections 363, 364, 367, 302, 201 of the Indian Penal Code and under Sections 376, 376(2)(f), 377 of the Indian Penal Code r/w Section 3 punishable  under Section 4 of the Protection of Children  from Sexual  Offences  Act  and  under  Sections 5(h)(i),  5(k),  (I)  (m)  punishable  under  Section  6  of  the Protection of Children from Sexual Offences Act.

35

2. Accused  is  sentenced  to  death  for  an  offence punishable under Section 302 of the Indian Penal  Code and he be hanged by the neck till he is dead, subject to confirmation  by  Hon’ble  High  Court  of  Judicature  at Bombay.

3. Accused is  sentenced to suffer imprisonment for life for offences under Sections 376, 376(2)(f), 377 of the Indian Penal Code and offence u/s 3 punishable u/s 4 and 5(h)(i),  5(k),  (I)  (m)  punishable  under  Section  6  of  the Protection of Children from Sexual Offences Act.

4. No  separate  sentence  is  awarded  for  offences under Sections 363, 364, 367 and 201 of the Indian Penal Code.

5. Accused is undertrial prisoner since 25.01.2013.

6. The Muddemal  property  be preserved till  further orders in reference from Hon’ble High Court.

7. The copy of this judgment be furnished to accused free of cost forthwith.

8. The Registrar is  directed to send the record and proceedings  of  this  Special  Case  No.1/2013  to  Hon’ble High Court for confirmation of death sentence.”

89. The  Registrar  was  directed  to  send  the  records  and

proceedings of the case to the High Court for confirmation of the

death sentence.  The accused-appellant also filed an appeal against

the  conviction  and  sentence  being  Criminal  Appeal  No.1202  of

2013.

90. The said Criminal  Appeal No.1202 of 2013 was heard by a

Division Bench of Bombay High Court alongwith the death sentence

reference being Crl. Confirmation case No.6 of 2013 in Special Case

No.1 of 2013.

36

91. By a judgment and order dated 21st, 24th, 25th March, 2014,

the Division Bench of Bombay High Court confirmed the conviction

and sentence of  death imposed under Section 302 of  the Indian

Penal Code on the accused-appellant.  The appeal of the accused-

appellant was partly allowed only to the extent that  the conviction

of  the  accused-appellant  under  Section  376  simplicitor  was  set

aside.  The State has not filed any appeal against the judgment and

order of the Division Bench.  

92. We have considered the evidence on record in detail and we

find absolutely no ground to interfere with the the conviction of the

accused-appellant, as confirmed by the First Appellate Court.   

93. As argued on behalf of the accused-appellant there may have

been embellishment of the evidence against the accused-appellant.

The evidence of the PWs 4 and 5 supported by PW-10 can never be

the  basis  of  any  conviction  and  is  fraught  with  inherent

inconsistencies.   

94. Even  assuming  that  PWs  4  and  5  actually  noticed  the

accused-appellant  carrying  a  bag  and  dumping  it  in  the  lane

opposite  the  car  shed,   this  was  in  the  evening  of  22.1.2013

whereas  the  body  of  the  victim  was  first  seen  by  her  parents

outside the door of their tenement, well past midnight, at around

2.00 a.m.  

95. Admittedly,  these  two  witnesses  had  not  noticed  anything

suspicious.  A bag with the body of the child would, in all likelihood,

37

have aroused suspicion.  No other material was found to suggest

that the body might have been concealed and/or wrapped and then

put in the bag identified by PW-4 and PW-5.  Admittedly, these two

witnesses did not examine the bag carried by the accused-appellant

(if at all) closely.  No credence can be placed on identification by the

PW 4 and 5, of the bag seized and produced by the Police, as the

same bag carried by the accused-appellant.   The identification is

preposterous.   

96. It  is  equally true that none of the witnesses except PW-18,

Asha, wife of the accused-appellant to whom the accused-appellant

confessed his guilt and the PW-12, a Pancha, in whose presence the

accused-appellant made extra judicial confession to the Police, is

relevant  to  the  guilt  of  the  accused-appellant.  However,  it  is

reiterated  at  the  cost  of  repetition  that  the  forensic  evidence

supported by the evidence of  PW-18 establishes the guilt  of  the

appellant  beyond  reasonable  doubt.  We,  thus,  confirm  the

conviction of the accused-appellant for the offences under Sections

302, 376(2)(f), 377 of the IPC read with Sections 3, 4 and 5 of the

POCSO.

97. The  question  is,  whether  death  sentence  imposed  on  the

accused-appellant  for  offences  under  Section  302  should  be

confirmed or be commuted to life sentence, as argued on behalf of

the accused-appellant.

98. Counsel  appearing  on  behalf  of  the  accused-appellant

submitted  that (i) the case did not fall under the category of the

38

rarest of rare cases; (ii) the accused-appellant was not effectively

defended before the Trial Court and the First Appellate Court; (iii)

the hearing given to the appellant under Section 235(2) of the Code

of  Criminal  Procedure  on  the  quantum  of  sentence  was  not  an

effective hearing; (iv) Counsel appearing on behalf of the accused-

appellant before the Trial Court only submitted that there were no

eye witnesses  to  the  crime,  and a  lesser  punishment  should  be

imposed having regard to the age of the accused-appellant; (v) the

attention of the Court was not drawn to mitigating circumstances

for  imposition of  a lesser  sentence and mitigating circumstances

were never considered; (vi)  the accused-appellant  was not  given

the  opportunity  to  file  an  affidavit  placing  on  record  mitigating

circumstances; (vii) Trial court did not make any effort to elicit facts

which could be mitigating circumstances against imposition of the

extreme  penalty  of  death  sentence;  (viii)  there  was  no  finding

recorded either by Trial or the Appellate Court that there was no

alternative to the imposition of  death sentence and (ix)  the Trial

Court did not consider the possibility of reformation or rehabilitation

of the accused-appellant.  Counsel argued that there was no reason

to suppose that the accused-appellant would be a continuing threat

to society unless hanged.   

99. In  Bachan  Singh  v.  State  of  Punjab1,  this  Court,  while

upholding the validity of death sentence held, that imprisonment

for  life  was  the  rule  and  death  sentence  an  exception,  to  be

1 (1980) 2 SCC 684

39

imposed in the “rarest of rare” cases, recording special reasons. In

Bachan  Singh  (supra),  this  Court  in  effect  held  that  before

exercising  discretion  to  impose  the  extreme  penalty  of  death

sentence, aggravating and mitigating circumstances are required to

be  considered.   Some  of  the  mitigating  factors  would  be  the

extreme  mental  or  emotional  disturbance  in  which  the  offence

might  have  been  committed,  the  possibility  that  the  accused-

appellant would not be a continuing threat to society, the possibility

of reformation and rehabilitation of the accused, mental defect or

disorder of the accused etc.

100. In  Rajesh Kumar  vs.  State  (through Govt.  of  NCT of

Delhi)2, this Court observed:-

“83.  The  ratio  in  Bachan  Singh  has  received approval by the international legal community and has  been  very  favourably  referred  to  by  David Pannick  in  Judicial  Review  of  the  Death  Penalty: Duckworth  (see  pp.  104-05).  Roger  Hood  and Carolyn  Hoyle  in  their  treatise  on  The  Death Penalty,  4th  Edn.  (Oxford)  have  also  very  much appreciated the Bachan Singh ratio (see p. 285). The  concept  of  “rarest  of  rare”  which  has  been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty.

84. Reference in this connection may also be made to  the  right  based  approach  in  exercising discretion  in  death  penalty  as  suggested  by Edward  Fitzgerald,  the  British  Barrister.  [Edward Fitzgerald: The Mitigating Exercise in Capital Cases in Death Penalty Conference (3-5 June), Barbados: Conference Papers and Recommendations.] It has been  suggested  therein  that  right  approach towards exercising discretion in capital cases is to start from a strong presumption against the death penalty.  It  is  argued  that  “the  presence  of  any

2 (2011) 13 SCC 706

40

significant  mitigating  factor  justifies  exemption from the death penalty even in the most gruesome cases” and Fitzgerald argues:

“Such a restrictive approach can be summarised as  follows:  The  normal  sentence  should  be  life imprisonment. The death sentence should only be imposed instead of the life sentence in the ‘rarest of  rare’  cases where the crime or  crimes are of exceptional heinousness and the individual has no significant  mitigation  and  is  considered  beyond reformation.”

    (Quoted in The Death Penalty, Roger Hood and Hoyle,  4th  Edn., Oxford, p. 285.)

86.  Taking  an  overall  view  of  the  facts  in  these appeals and for the reasons discussed above, we hold that death sentence cannot be inflicted on the appellant  since  the  dictum  of  the  Constitution Bench in Bachan Singh is that the legislative policy in Section 354(3) of  the 1973 Code is  that for a person convicted of  murder,  life  imprisonment  is the rule and death sentence, an exception, and the mitigating  circumstances  must  be  given  due consideration. Bachan Singh further mandates that in considering the question of sentence the court must  show  a  real  and  abiding  concern  for  the dignity  of  human  life  which  must  postulate resistance  to  taking  life  through  law’s instrumentality. Except in the “rarest of rare cases” and for  “special  reasons”  death sentence cannot be  imposed  as  an  alternative  option  to  the imposition of life sentence”.

101. In  Rajesh  Kumar (supra),  the  accused  was  convicted  of

assault and murder of two helpless children in the most gruesome

manner.  This Court held that death sentence could not be inflicted,

reiterating that life imprisonment was the rule and death sentence

an exception only to be imposed in the “rarest of rare cases” and

for “special reasons” when there were no mitigating circumstances.  

102. Section 235 of the Criminal Procedure Code (Cr.P.C.), reads as

follows:-

41

“235.  Judgment of  acquittal  or  conviction.—(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he  proceeds  in  accordance  with  the  provisions  of Section  360,  hear  the  accused  on  the  question  of sentence, and then pass sentence on him according to law.”

103. Section  235 (2)  of  the  CrPC is  not  a  mere  formality.   It  is

obligatory on the part of the learned trial Judge to hear the accused

on the question of sentence and deal with it.  To quote Bhagwati J.

in Santa Singh vs. State of Punjab3.

“2.  …...This  provision  is  clear  and  explicit  and does not admit of any doubt.  It requires that in every trial before a court of sessions, there must first be a decision as to the guilt of the accused. The  court  must,  in  the  first  instance,  deliver  a judgment convicting or acquitting the accused.  If the  accused  is  acquitted,  no  further  question arises.  But if he is convicted, then the court has to “hear the accused on the question of sentence, and then pass sentence on him according to law”. When  a  judgment  is  rendered  convicting  the accused,  he  is,  at  that  stage,  to  be  given  an opportunity to be heard in regard to the sentence and it is only after hearing him that the court can proceed to pass the sentence.

3.  This  new  provision  in  Section  235(2)  is  in consonance with the modern trends in penology and sentencing procedures.  There was no such provision in the old Code.  Under the old Code, whatever the accused wished to submit in regard to the sentence had to be stated by him before the argumentss concluded and the judgment was delivered.  There was no separate stage for being heard in regard to sentence.  The accused had to produce  material  and  make  his  submissions  in regard  to  sentence  on  the  assumption  that  he was ultimately going to be convicted.  This was most  unsatisfactory.   The  legislature,  therefore, decided  that  it  is  only  when  the  accused  is

3  (1976) 4 SCC 190

42

convicted  that  the  question  of  sentence  should come up for consideration and at that stage, an opportunity should be given to the accused to be heard in regard to the sentence.  Moreover, it was realised that sentencing is an important stage in the process of administration of criminal justice- as  important  as  the  adjudication  of  guilt-and  it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be a matter of some anxiety to the court to  impose  an  appropriate  punishment  on  the criminal and sentencing should, therefore, receive serious attention of the court.

…..The reason is that a proper sentence is the amalgam of many factors such as the nature of the  offence,  the  circumstances-extenuating  or aggravating-  of  the  offence,  the  prior  criminal record,  if  any,  of  the  offender,  the  age  of  the offender,  the  record  of  the  offender  as  to employment, the background of the offender with reference  to  education,  home life,  sobreity  and social  adjustment,  the  emotional  and  mental condition of ‘the offender, the prospects for the rehabilitation  of  the  offender,  the  possibility  of treatment  or  training  of  the  offender,  the possibility  that  the  sentence  may  serve  as  a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent  in  respect  to  the  particular  type of offence.   These  are  factors  which  have  to  be taken into account by the court in deciding upon the  appropriate  sentence,  and,  therefore,  the legislature felt that, for this purpose, a separate stage should be provided after  conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. 4.  ….The hearing on the question of sentence, would  be  rendered  devoid  of  all  meaning  and content and it would become an idle formality, if it  were  confined  merely  to  hearing  oral submissions without any opportunity being given to the parties and particularly to the accused, to produce  material  in  regard  to  various  factors bearing  on  the  question  of  sentence,  and  if necessary,  to lead evidence for  the purpose of placing such material before the court.

43

104. In  Santa Singh (supra), Bhagwati, J. set aside the sentence

of  death  and  remanded  the  case  to  the  Sessions  Court  with  a

direction to pass appropriate sentence after giving an opportunity

to the petitioner in the aforesaid case of being heard with regard to

the  question  of  sentence,  in  accordance  with  the  provisions  of

Section 235(2) CrPC as interpreted in Santa Singh (supra).

105. In  Dagdu and Others v. State of Maharashtra4, a three-

Judge Bench of this Court referred to Santa Singh (supra) and held

that the mandate of Section 235(2) CrPC had to be obeyed in letter

and spirit.  Chandrachud, J.  held:-

“79.  …  The  Court,  on  convicting  an  accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court,  it  would be open to that Court to remedy the  breach  by  giving  a  hearing  to  the accused  on  the  question  of  sentence.  That opportunity  has to be real  and effective,  which means  that  the  accused  must  be  permitted  to adduce before  the Court  all  the data which  he desires to adduce on the question of  sentence. The  accused  may exercise  that  right  either  by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place  in  writing  before  the  Court  whatever  he desires  to  place  before  it  on  the  question  of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of  sentence.  That,  perhaps,  must  inevitably happen where the conviction is recorded for the first time by a higher court.”

4  (1977) 3 SCC 68

44

106. In  Machhi Singh & Others v. State of Punjab5, this

Court held:-

“38. … (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 a just balance  has  to  be  struck  between  the aggravating  and  the  mitigating  circumstances before the option is exercised.”

107. In  Santosh Kumar Satishbhushan Bariyar v. State of   

Maharashtra6, this Court observed and held:-

“157. The  doctrine  of  proportionality,  which appears  to  be  the  premise  whereupon  the learned trial Judge as also the High Court laid its foundation  for  awarding  death  penalty  on  the appellant  herein,  provides  for  justifiable reasoning for awarding death penalty. However, while imposing any sentence on the accused the court  must  also  keep  in  mind  the  doctrine  of rehabilitation. This, considering Section 354(3) of the Code, is especially so in the cases where the court is to determine whether the case at hand falls within the rarest of the rare case.

158. The reasons assigned by the courts below, in our opinion, do not satisfy Bachan Singh test. Section  354(3)  of  the  Code  provides  for  an exception.  General  rule  of  doctrine  of proportionality,  therefore,  would  not  apply.  We must read the said provision in the light of Article 21 of the Constitution of India. Law laid down by Bachan  Singh  and  Machhi  Singh  interpreting Section 354(3) of the Code should be taken to be a part of our constitutional scheme.

159. Although  the  Constitutional  Bench judgment of the Supreme Court in Bachan Singh did not lay down any guidelines on determining which  cases  fall  within  the  “rarest  of  rare” category, yet the mitigating circumstances listed in and endorsed by the judgment give reform and

5  (1983) 3 SCC 470 6  (2009) 6 SCC 498

45

rehabilitation  great  importance,  even  requiring the  State  to  prove  that  this  would  not  be possible,  as  a  precondition  before  the  court awarded a death sentence. We cannot therefore determine  punishment  on  grounds  of proportionality alone. There is nothing before us that shows that the appellant cannot reform and be rehabilitated.

162. Further  indisputably,  the  manner  and method  of  disposal  of  the  dead  body  of  the deceased was abhorrent and goes a long way in making  the  present  case  a  most  foul  and despicable case of murder.  However, we are of the opinion, that the mere mode of disposal of a dead body may not by itself be made the ground for  inclusion  of  a  case  in  the  “rarest  of  rare” category  for  the  purpose  of  imposition  of  the death  sentence.  It  may  have  to  be  considered with several other factors.

108. In  Ajay Pandit and Another v. State of Maharashtra7,

this Court held:-

“47. Awarding death sentence is an exception, not the rule, and only in the rarest of rare cases, the court  could  award  death  sentence.  The  state  of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically.  The  court  has  got  a  duty  and obligation  to  elicit  relevant  facts  even  if  the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those  relevant  factors,  while  questioning  the accused and, therefore, committed a gross error of procedure  in  not  properly  assimilating  and understanding  the  purpose  and  object  behind Section 235(2) CrPC.”

109. In Mohinder Singh v. State of Punjab8, this Court held:-

“22. The doctrine of “rarest of rare” confines two aspects and when both the aspects are satisfied

7  (2012) 8 SCC 43 8  (2013) 3 SCC 294

46

only  then  the  death  penalty  can  be  imposed. Firstly, the case must clearly fall within the ambit of  “rarest  of  rare”  and  secondly,  when  the alternative  option  is  unquestionably  foreclosed. Bachan  Singh  suggested  selection  of  death punishment  as  the  penalty  of  last  resort  when, alternative punishment of life imprisonment will be futile and serves no purpose.

23. In  life  sentence,  there  is  a  possibility  of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true  for  the  death  penalty.  It  is  unique  in  its absolute  rejection  of  the  potential  of  convict  to rehabilitate  and  reform.  It  extinguishes  life  and thereby terminates the being,  therefore,  puts  an end  to  anything  to  do  with  life.  This  is  the  big difference between two punishments. Thus, before imposing  death  penalty,  it  is  imperative  to consider the same. The “rarest of rare” dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of  life  imprisonment.  The relevant  question  here would be to determine whether life imprisonment as  a  punishment  would  be  pointless  and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be  said  to  be  unachievable.  Therefore,  for satisfying the second aspect to the “rarest of rare” doctrine,  the  court  will  have  to  provide  clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme”.

110. In  Panchhi  and  Others  v.  State  of  U.P.9,  this  Court

observed:-

“20. …  No  doubt  brutality  looms  large  in  the murders in this case particularly of the old and also  the  tender-aged  child.  It  may  be  that  the manner  in  which  the  killings  were  perpetrated may not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a  ground but  not  the sole criterion for judging whether the case is one of

9  (1998) 7 SCC 177

47

the ‘rarest of rare cases’ as indicated in Bachan Singh case.”

111. In  Bantu v. State of M.P.10 this Court found that there was

nothing on record to indicate that the appellant had any criminal

antecedents nor could it be said that he would be a grave danger to

the society at large despite the fact that the crime committed by

him was heinous. This Court held:-

“8.  However,  the  learned  counsel  for  the appellant  submitted  that  in  any  set  of circumstances, this is not the rarest of the rare case where the accused is  to be sentenced to death. He submitted that age of the accused on the relevant day was less than 22 years. It is his submission that even though the act is heinous, considering the fact that no injuries were found on the deceased, it is probable that death might have  occurred  because  of  gagging  her  mouth and nosetrix [nostril] by the accused at the time of incident so that she may not raise a hue and cry. The death, according to him, was accidental and an unintentional  one.  In  the present  case, there is  nothing on record to indicate that  the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare  case  where  the  accused  requires  to  be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence.” (Emphasis supplied by us).  

112.  In  Amit  v.  State  of  Maharashtra11 this  Court  took   into

consideration,  the  prior  history  of  the  appellant  and  noted  that

there was no record of any previous heinous crime and also there

was no evidence that he would be a danger to society if the death

10 (2001) 9 SCC 615 11 (2003) 8 SCC 93

48

penalty was not awarded to him.  The relevant finding (Paragraph

10) is extracted hereinbelow:-  

“10.  The  next  question  is  of  the  sentence. Considering that the appellant is a young man, at the  time  of  the  incident  his  age  was  about  20 years; he was a student; there is no record of any previous  heinous  crime  and  also  there  is  no evidence that he will be a danger to the society, if the  death  penalty  is  not  awarded.  Though  the offence  committed  by  the  appellant  deserves severe  condemnation  and  is  a  most  heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases…….”  

113. In the case of  Rahul v. State of Maharashtra12 this Court

noted that there was no adverse report about the conduct of the

appellant therein either by the jail authorities or by the probationary

officer  and  that  he  had  no  previous  criminal  record  or  at  least

nothing was brought to the notice of the Court. This Court observed

as follows:-  

“4. We have considered all the relevant aspects of the case. It is true that the appellant committed a serious  crime in  a  very ghastly  manner  but  the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27-11-1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal  record,  and nothing was brought  to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we  do  not  think  that  the  penalty  of  death  be imposed on him.”  

114.  Similarly,  in  Surendra  Pal  Shivbalakpal  v.  State  of

12 (2005) 10 SCC 322

49

Gujarat13 the absence of any involvement in any previous criminal

case was considered to be a factor to be taken into consideration

for the purposes of awarding the sentence to the appellant therein.

This Court  held :

“13. The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence  and  there  is  no  evidence  that  the appellant had been involved in any other criminal case previously  and the appellant  was a migrant labourer  from U.P.  and was living in  impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment.”  

115. In  Mukesh  and  Another  v.  State  (NCT  of  Delhi)  and

Others14, a three-Judge Bench of this Court considered the earlier

judgments  of  this  Court  referred  to  above  and  deemed  it

appropriate to give opportunity to the accused to file affidavits to

bring  on  record  mitigating  circumstances  for  reduction  of  the

sentence.  

116. The accused-appellant was produced before the Trial court for

hearing under Section 235(2) of the Code of Criminal Procedure the

day after the judgment and order of his conviction was passed.  The

accused-appellant, it appears, did not make any submission on the

point  of  sentence.    This  is  recorded  by  the  Trial  Court.   The

13 (2005) 3 SCC 127 14  (2017) 3 SCC 717

50

accused-appellant  only  pleaded ‘not  guilty’  submitting that  there

was no eye witness to the crime.   The Trial Court has recorded that

Advocate  Waghachadu,  the  learned  Advocate  appearing  for  the

accused-appellant   submitted  that  “considering  the  fact  that

accused  is 53 years old leniency be shown to accused” in awarding

death sentence.  

117.  The Trial Court has accepted the submission of the learned

Special  Public  Prosecutor  that  there  were  no  mitigating

circumstances  to  award  life  imprisonment  instead  of  death

sentence. The Special Public Prosecutor submitted that the offences

had been committed with extreme depravity.  

118. It may be pertinent to note that in awarding death sentence,

the trial  court  referred to and relied upon two judgments of  this

Court  of  affirmation  of  death  sentence,  that  is,  Rajendra

Prahladrao  Wasnik  v.  State  of  Maharashtra15 and  Mohd.

Manan @ Abdul Mannan v. State of Bihar16.   On review of both

the  judgments,  death  sentence  has  been  commuted  to

imprisonment for life.  

119. In  Haru  Ghosh  vs.  State  of  West  Bengal17,  this  Court

commuted death sentence to life  imprisonment in  the case of  a

dastardly murder of two helpless persons for no fault of theirs. This

Court,  however,  in  commuting  death  sentence  took  into

consideration the following factors:-

15 R.P. (Crl) No. 306-307 of 2013 16 Case NO. R.P (Crl) No. 308 of 2011 in Crl. A. No. 379 of 2009 17  (2009) 15 SCC 551

51

“i. There  was  no  pre-meditation  on  the  part  of  the accused; ii. The act was on the spur of the moment; iii.The accused was not armed with any weapon; iv. It  was  unknown  under  what  circumstances  the accused had entered the house of the deceased and what prompted him to assault the boy; and v. The  cruel  manner  in  which  the  murder  was committed  could  not  be  the  guiding factor  and the accused himself had two minor children.”

120. In  Haru Ghosh  (supra),  this Court observed, “….the cruel

manner in which the murder was committed and the subsequent

action on the part of the accused in severing the parts of the body

of the deceased, do not by themselves become the guiding factor

in favour of death sentence.”  

121. In  Lehna vs. State of Haryana18, even though three lives

had  been  lost  by  reason  of  the  crime,  this  Court  modified  the

punishment  by  commuting  death  sentence  to  life  imprisonment,

observing that there was no evidence of any diabolic planning to

commit the crime, though the act was cruel.

122. In this  case too there is  no evidence at all  of  any diabolic

planning to commit the crime though the crime was undoubtedly

cruel and heinous.   The circumstances in which the victim entered

the tenement of the accused-appellant are not known. There is no

evidence to show that the accused-appellant took the victim to his

tenement.   Though  unlikely,  she  might  even  have  gone  to  his

tenement on her own.

18 (2002) 3 SCC 76

52

123.  Under the Indian Penal Code and, in particular, Section 299

thereof,  whoever  causes  death  by  doing  an  act  either  with  the

intention  of  causing death  or  with  the intention  of  causing such

bodily injury as is likely to cause death or with the knowledge that

he is likely, by such act, to cause death, commits the offence of

culpable homicide.   

124.   As per the definition of Section 300 of the IPC, except in

cases excepted thereafter, culpable homicide is murder if the act by

which the death is caused (i) is done with the intention of causing

death or (ii) if it is done with the intention of causing such bodily

harm as the offender knows to be likely to cause the death of the

person to whom the harm is caused or (iii) if the act is done with

the intention of causing bodily injury to any person and the bodily

injury intended to be inflicted is sufficient in the ordinary course of

nature to cause death or (iv) if the person committing the act knows

that  it  is  so imminently  dangerous that it  must,  in  all  probabily,

cause death or such bodily injury as is likely to cause death  and

commits  such  act  without  any  excuse for  incurring  the  risk  of

causing death or such injury as aforesaid.    

125.   As  a  mature  man,  over  fifty  years  of  age,  the  accused-

appellant should have known that the rape of a five year old child

by an adult was dangerous and could lead to such injuries, as was

in all probability likely to cause death.  

126.   The death of the deceased victim was not caused under any

provocation, not to speak of sudden provocation.  No such defence

53

has been taken by the accused-appellant. Nor is it anybody’s case

that the death was caused in legitimate exercise in good faith of

any right of the accused-appellant, whether of private defence or

otherwise.  The death has been caused without any provocation.    

127.   The totality of the injuries support the finding of the Trial

Court  and  the  First  Appellate  Court  that  the  accused-appellant

murdered  the  deceased  victim.    Though  the  act  of  the  victim

squarely  amounts  to  rape  and  murder,  there  is  not  a  scrap  of

material to show that the intention of the accused-appellant was to

kill the minor child.  

128.   The PW-1, Dr. Bhusan Jain who had prepared the post mortem

report  opined  that  the  cause  of  death  was  asphyxia  due  to

smothering, associated with head injuries and sexual assault.  Dr.

Bhusan  Jain  deposed  that  all  the  5  injuries  were  possible  by

repeated sexual  acts and forceful penetration.  He opined that all

the injuries were sufficient to cause instant death in the ordinary

course.

129.  Being a man of about 50 years of age, the accused-appellant

should have known that repeated sexual assault could have led to

the death of  the victim and in fact did lead to the death of  the

victim, only five years of age.   The accused-appellant  has rightly

been convicted of murder apart from child rape.  However, there is

no evidence at all direct or circumstantial which establishes that the

intention of the accused-appellant  was to kill the deceased victim.

130.   Considering the totality of the evidence before us, we uphold

54

the conviction of the accused-appellant.  However, in view of the

evidence of the post mortem report of Dr. Bhusan Jain, we deem it

appropriate  to  modify  the  sentence  by  reducing  the  same  to

imprisonment for life.    

131.  There can be no doubt that rape and murder of a 5 years old

girl shocks the conscience.  It is barbaric.  There is, however, no

evidence to support the finding that the murder was pre-meditated.

The petitioner did not carry any weapon.   The possibility that the

accused-appellant might not have realized that his act could lead to

death cannot altogether be ruled out.  Moreover, the Trial Court has

apparently not considered the question of whether the crime is the

rarest of rare crimes as mandated by the Supreme Court in Bachan

Singh (supra).  

132.  In   Review  Petition  (Crl.)  No.306-307  of  2013  (Rajendra

Prahladrao  Wasnik  v.  State  of  Maharashtra) the  Court

commuted the death sentence, in a case of rape and murder of a

three year old child to life imprisonment,  inter alia, observing that

the case did not fall in the category of the rarest of the rare.  

133. As  argued  by  learned  counsel  appearing  on  behalf  of  the

petitioner, the High Court found the offence to be in the category of

the rarest of rare cases, having regard to the nature of the offence

and the age of the victim.   

134. Counsel  for  the  accused-appellant  submitted  that  the

brutality of the crime and age of the victim was not ground enough

to  inflict  death  sentence.  Learned  counsel  submitted  that  the

55

petitioner had been convicted on circumstantial evidence, based on

faulty investigation.  

135.  However,   as  observed  above,   the  forensic  evidence

construed in the light of the evidence of PW-18, Asha, wife of the

accused-appellant, that the accused-appellant had confessed to the

crime to her,   establishes the guilt  of  the accused-appellant and

death sentence can be imposed even where conviction is based on

circumstantial evidence, provided the case falls in the category of

the rarest of rare and there are no mitigating circumstances and no

possibility of reform  or rehabilitation  of the convict.  

136. On analogy of the reasoning in Review Petition (Crl) No. 306-

307  of  2013  in  the  case  of   Rajendra  Prahladrao Wasnik  v.

State of Maharashtra,  this Court is constrained to hold that this

case   does  not  fall  in  the  category  of  the  rarest  of  rare  cases.

Moreover, the accused-appellant was not defended effectively.  The

lawyer representing the accused-appellant only pleaded not guilty,

emphasizing  that  there  was  no  eye  witness  to  the  incident  and

sought  leniency  only  on  the  ground  of  the  age  of  the  accused-

appellant which was 53 years.  

137. The  accused-appellant  neither  sought  nor  was  given  the

opportunity  to  file  any  affidavit  placing  on  record  relevant

mitigating circumstances.   The  legal  assistance  availed  by  the

accused-appellant  was  patently  not  satisfactory  and  he  was  not

accompanied by a social worker.  No attempt was made to place on

record mitigating circumstances.   No argument was advanced to

56

the  effect  that   there  was  no  similar  case  against  the  accused-

appellant.   In the absence of any arguments, the Trial Court did not

consider the question of whether the accused-appellant could be

reformed.   

138. Considering the nature of the crime against a five year old

child, the Trial Court imposed the extreme penalty of death without

deciding  the  question  of  whether  there  was  no  alternative  to

imposing death sentence on the accused-appellant.   There is  no

finding  that  in  the  absence  of  death  sentence,  the  accused-

appellant would continue to be a threat to the society.  The question

of whether the accused-appellant could be reformed, had not at all

been considered.     

139.  As  held  in  Dagdu (supra)  irrespective  of  whether  these

issues were raised on behalf of the accused,  the Court is obliged on

its  own  to  elicit  facts  relevant  to  the  question  of  existence  of

mitigating circumstances. The Court made no attempt to elicit any

facts relevant to the sentence.   

140. For  effective  hearing  under  Section  235(2)  of  the  Code  of

Criminal Procedure, the suggestion that the court intends to impose

death penalty should specifically be made to the accused, to enable

the  accused  to  make  an  effective  representation  against  death

sentence,  by  placing  mitigating  circumstances  before  the  Court.

This has not been done.  The Trial Court made no attempt to elicit

relevant facts, nor did the Trial Court give any opportunity to the

petitioner to file an affidavit placing on record mitigating factors.  As

57

such the petitioner has been denied an effective hearing.

141. Contrary  to  the  dictum of  this  Court,  inter  alia,  in  Dagdu

(supra) and Santa Singh (supra) the petitioner was not given a

real, effective and meaningful hearing on the question of sentence

under Section 235(2) of the Cr.P.C. The death sentence imposed on

the petitioner is liable to be commuted to life imprisonment on this

ground.

142. There can be no doubt that the rape and murder of a five

years old child is absolutely heinous and barbaric, but as observed

above,  it  cannot  be said  to  be in  the category of  rarest  of  rare

cases.    

143. In  Mulla and Another v.  State of  U.P.19,  this  Court  has

affirmed  that  it  is  open  to  the  Court  to  prescribe  the  length  of

incarceration.  This is especially true in cases where death sentence

has been replaced by the life imprisonment.  This Court observed,

“the court should be free to determine the length of imprisonment

which will suffice the offence committed.”

144. Even though life imprisonment means imprisonment for entire

life,  convicts  are  often  granted  reprieve  and/or  remission  of

sentence after imprisonment of not less than 14 years.  In this case,

considering the heinous, revolting, abhorrent and despicable nature

of the crime committed by the appellant, we feel that the appellant

should undergo imprisonment for life, till his natural death and no

remission of sentence be granted to him.

19  (2010) 3 SCC 508

58

145. For the above reasons, we are of the view that the present

appeals  are  one  of  such  cases  where  we  would  be  justified  in

holding that confinement till  natural life of the accused-appellant

shall  fulfil  the  requisite  criteria  of  punishment  considering  the

peculiar facts and circumstances of the present case.  Accordingly,

the death sentence awarded by the trial court is hereby modified to

“life  imprisonment”  i.e.,  imprisonment  for  the  natural  life  of  the

appellant herein.  The appeals are allowed accordingly to the extent

indicated above.  

.……………................................J.  (N. V. RAMANA)

.…………...................................J.  (DEEPAK GUPTA)

…………….................................J. (INDIRA BANERJEE)

FEBRUARY 21, 2019 NEW DELHI