REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 2030-2031 of 2009

Haresh Mohandas Rajput                …Appellant

Versus

State of Maharashtra              …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment  and  order  dated  11.1.2008  in  Criminal  Appeal  

Nos.1020/2001 and 401/2002 of the High Court of Bombay in which  

the High Court has confirmed the order of conviction dated 19.9.2001  

passed by the Additional Sessions Judge, Pune in Sessions Case No.41  

of  2000  for  the  offences  of  rape  and  murder,  however,  altered  the  

sentence  of  life  imprisonment  awarded  by  the  Trial  Court  to  death  

sentence  while  allowing  the  criminal  appeal  of  the  State  for  

enhancement of punishment.

2. FACTS:

A. On 24.10.1999,  Pooja, deceased, aged 10 years was playing on  

the road between her house and the house of the appellant at about 4  

p.m. along with her brother Nitesh (PW.3) and sister.  She was found  

missing by Nitesh (PW.3) who searched for her but in vain.  Smt. Tara  

(PW.1)  mother of  Pooja, deceased, who had been away for work, on  

being informed came back and looked around but  Pooja could not be  

traced.  Smt. Tara (PW.1) reached the police station at 9.30 p.m. to  

lodge  the  First  Information  Report  (hereinafter  called  the  “FIR”).  

While  Smt.  Tara  (PW.1)  was  still  in  the  police  station,  Khushal  

(PW.10) son of the appellant arrived at the police station and informed  

the police that the appellant, who was addicted to liquor, told him that  

he had killed Pooja, deceased and her dead body was lying under the  

cot in his house.  The police acted on the information and reached the  

spot and found that a large number of persons had gathered there and  

the appellant  was sitting outside his home.

B. The dead body  of Pooja was recovered from the house of the  

appellant and panchnama was prepared.  Appellant was arrested and  

after completing the investigation, the chargesheet was filed  against  

him  under  Sections  302  and  376  of  the  India  Penal  Code,  1860  

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(hereinafter called “IPC”) . During the trial, the prosecution examined a  

large number of witnesses in support of its  case and after conclusion of  

the  trial,  the  Trial  Court  vide  judgment  and  order  dated  19.9.2001  

convicted  the  appellant  and  sentenced  him  to  undergo  life  

imprisonment under Section 302 IPC and 10 years imprisonment under  

Section 376 IPC.  However, both the sentences were directed to run  

concurrently.

C. Being aggrieved, the State of Maharashtra preferred the appeal  

for  enhancement  of  sentence  and the  appellant  also  filed  an  appeal  

against his conviction.  The High Court vide impugned judgment and  

order dated 11.1.2008 upheld the conviction and enhanced the sentence  

to death penalty, while disposing of both the appeals.  

Hence, these appeals.

RIVAL SUBMISSIONS:

3. Shri  D.N.  Goburdhan,  learned  counsel  appearing  for  the  

appellant, has submitted that there is no evidence on record to connect  

the appellant with the crime. Circumstantial evidence was not to the  

effect  that  it  would  indicate  towards  the  guilt  of  the  appellant  in  

exclusion  of  any  hypothesis  of  innocence.  There  are  material  

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inconsistencies in the statements of the witnesses which go to the root  

of the case.  There is no sufficient evidence on record on the basis of  

which conviction of the appellant could be recorded.  However, under  

no circumstance  the  High Court  could be justified in enhancing the  

punishment  from  life  imprisonment  to  death  sentence.   Thus,  the  

appeals deserve to be allowed.

4. Per contra, Shri Arun R. Pednekar, learned counsel appearing for  

the State,  has opposed the appeals contending that the courts  below  

have taken into consideration a large number of circumstances which  

stood proved to establish the guilt of the appellant.  The dead body of  

Pooja, deceased,  was recovered from the house of the appellant.  The  

medical report revealed that she had been killed by strangulation after  

being subjected to sexual assault.  The inconsistencies in the statements  

of the witnesses, if any, are of trivial nature.  The concurrent findings  

of  facts  recorded  by  the  courts  below  on  the  basis  of  which  the  

appellant  has  been convicted,  do  not  require  any interference.   The  

appeals lack merit and are liable to be dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

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FACTS UNDISPUTED:

6. Indisputably, the dead body of Pooja was found inside the house  

of the appellant with blood stains under the cot.  There had been blood  

stains on the bed-sheet and on the floor underneath the cot. Appellant  

could not offer any explanation whatsoever as how the dead body of  

the victim girl  could reach his house.  More so, there is nothing on  

record to controvert the evidence of the doctor who conducted the post-

mortem and opined that there had been sexual assault on the victim and  

she  died  of  strangulation  and there  had been ligature  marks  on her  

neck.  Appellant was present in his house when police arrived there.  

The alibi taken by the appellant that he had gone to a liquor shop for  

drinks leaving his house open remained unsubstantiated and was found  

to be false.     

INJURIES:

7. Dr. P.D. Rokade, PW-7, conducted the post-mortem examination  

on 25.10.1999 on the body of Pooja and found the following injuries:  

1. Contused  abrasion  over  the  labia  majora  from  the  junction behind the backwards size 1 x 0.25 cm/oblique.  

2. Crescent  marks on the  labia  majnora  near  the  clitoris  size 0.25 cm.  

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3. Abrasion with radial from the labia minora behind and  backwards noted.  

4. Four chit the torn radially and bruised.  

5. Posterial commisure torn.   

6. Hymen lacerated along 3 and 9 O'clock position.  

      Dr.  P.D. Rokade (PW.7) found following injuries on external  

examination:  

1. Contused abrasion left frontal eminence size 0.25 x 0.25 cms.  Single.   

2. Crescent abrasion right upper lip lateral aspect size 0.5 x 0.25  cm. horizontal.  

3. Contusion right ala of nose 0.5 x 0.1 cms.  

4. Contusion right orbital plate 2 cms below the outer canthus,  size 1 x 0.25 cms. Oblique.  

5. Crescent abrasion right angle of mouth 0.25 x 0.25 cm .  

6. Contused abrasion right cheek 4 in No.1 below another with  1 cm. apart oblique in direction of size 1.5 x 0.5 cm.   

7. Ligature mark around the neck over the thyroid cartilage  extending from left sternclodomastoid upto the right posterior  triangle of neck size 15 cm. x 1.5 cm. on left and 1 cm. on  right side.  

8. Ligature mark is 7 cm. below left ear 6.5 cm. below chin  and 8 cm. below right  ear and is more prominent on left side.  

9. Contusion right anterior triangle of neck 2 cm. x 0.5 cm.  irregular.   

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10. Crescent abrasion over right forearm and wrist 7 in No. of  0.1 to 0.25 cm. and  1-2 cm.  apart.  

11.  Crescent  abrasion left  forearm and wrist  externally  2 in  number 4 cm. part size 0.1 to 0.2 cm.

12.  Old  unhealed  seen  over  the  left  knee  with  recent  scab  removal (granulate on tissue seen) size 2 x 1 cm. and 3 x 2 cm.

All the injuries were ante-mortem.  

    The  doctor  also  opined  that  injuries  to  genitals  mentioned  in  

column no. 151 may be possible due to sexual assault.  There injuries  

as  well  as  internal  injuries  mentioned  in  para  no.  20,  organs  of  

generations may be possible due to rape by a fully developed person by  

full penetration.   

                 The age of the injuries was 24 hours before post-mortem  

examination.   Injuries caused by finger nails referred above may be  

caused in sexual assault. Injuries mentioned in column no. 3 may be  

possible due to resistance during sexual assault.  

       The witness further opined that Pooja was raped and then  

murdered on 24.10.1999 between 4.00 p.m. to 10.00 p.m.

8. The instant case is based on circumstantial evidence as there is  

no eye-witness  of the incident  and the High Court  has awarded the  

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death  sentence  to  the  appellant.  Thus,  we  have  to  examine  as  to  

whether  the  prosecution  case  meets  the  requirement  of  proof  on  

circumstantial  evidence  and  the  facts  of  the  case  warranted  the  

imposition of death sentence.  

CIRCUMSTANTIAL EVIDENCE:

9.    In  Krishnan v. State  represented  by  Inspector  of  Police,  

(2008) 15 SCC 430, this Court after considering a large number of its  

earlier judgments observed that when a case rests upon circumstantial  

evidence, such evidence must satisfy the following tests:

(i) the circumstances from which an inference of   guilt is sought to be drawn, must be cogently and  firmly established;

(ii)  those  circumstances  should  be  of  definite   tendency unerringly pointing towards guilt of the  accused;

(iii) the circumstances, taken cumulatively, should  form a chain so complete that there is no escape   from  the  conclusion  that  with  all  human  probability  the  crime  was  committed  by  the  accused and none else; and

(iv) the circumstantial evidence in order to sustain  conviction  must  be  complete  and  incapable  of   explanation of  any other hypothesis  than that  of   the guilt of the accused and such evidence should   not only be consistent with the guilt of the accused   but should be inconsistent with his innocence.”  

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               Though  a  conviction  may be  based  solely  on  circumstantial  

evidence,  however,  the  court  must  bear  in  mind  the  aforesaid  tests  

while deciding a case involving the commission of a serious offence in  

a gruesome manner.  

10. In  Sharad Birdhichand Sarda v. State of Maharashtra, AIR  

1984  SC  1622,  this  Court  observed  that  it  is  well  settled  that  the  

prosecution’s case must stand or fall  on its own legs and cannot  

derive any strength from the weakness of the defence put up by the  

accused.  However,  a false defence may be called into aid only to  

lend assurance  to  the  court  where  various  links  in  the  chain  of  

circumstantial  evidence  are  in  themselves  complete.  The  

circumstances from which the conclusion of guilt is to be drawn should  

be fully established.  The same should be of a conclusive nature and  

exclude all possible hypothesis except the one to be proved.  The facts  

so established must be consistent with the hypothesis of the guilt of the  

accused and the chain of evidence must be so complete as not to leave  

any reasonable ground for a conclusion consistent with the innocence of  

the accused and must show that in all human probability, the act must  

have been done by the accused. The Court also discussed the nature,  

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character and essential proof required in a criminal case which rests on  

circumstantial evidence alone and held as under:

“(a) The circumstances from which the conclusion of   guilt is to be drawn should be fully established;

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

(c)  The  circumstances  should  be  of  a  conclusive   nature and tendency;

(d)  They  should  exclude  every  possible  hypothesis   except the one to be proved; and

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

11. A similar  view has  been  reiterated  by  this  Court  persistently  

observing that the evidence produced by the prosecution should be of  

such a nature that it makes the conviction of the accused sustainable.  

(See: Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011  

SC 200;  Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC  

306;  Mohd. Mannan  @ Abdul Mannan v. State of Bihar,  (2011) 5  

SCC 317; Inspector of Police, Tamil Nadu v. John David, (2011) 5  

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SCC 509; and  SK. Yusuf  v. State of West Bengal  AIR 2011 SC  

2283).  

DEATH SENTENCE - WHEN WARRANTED  :    

12. The guidelines laid down in Bachan Singh v. State of  Punjab,  

AIR 1980 SC 898, may be culled out as under:

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

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

(iii) Life imprisonment is the rule and death sentence  is an exception.  In other  words, death sentence  must  be  imposed  only  when  life  imprisonment   appears  to  be  an  altogether  inadequate   punishment  having  regard  to  the  relevant  circumstances  of  the  crime,  and  provided,  and  only provided, the option to impose sentence of   imprisonment  for  life  cannot  be conscientiously   exercised  having  regard  to  the  nature  and  circumstances of the crime and all  the relevant   circumstances.

(iv) A  balance  sheet  of  aggravating  and  mitigating  circumstances has to be drawn up and in doing   so,  the  mitigating  circumstances  have  to  be   accorded full weightage and just balance has to  be  struck  between  the  aggravating  and  the  mitigating  circumstances  before  the  option  is   exercised.”

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13. In  Machhi Singh & Ors. v. State of  Punjab,  AIR 1983 SC  

957, this Court expanded the “rarest of rare” formulation beyond the  

aggravating  factors  listed  in  Bachan  Singh to  cases  where  the  

“collective conscience” of a community is so shocked that it will expect  

the  holders  of  the  judicial  powers  centre  to  inflict  death  penalty  

irrespective  of  their  personal  opinion  as  regards  desirability  or  

otherwise of  retaining death penalty, such a penalty can be inflicted.  

But  the  Bench  in  this  case  underlined  that  full  weightage  must  be  

accorded to the mitigating circumstances in a case and a just balance  

had to be struck between aggravating and mitigating circumstances.

14. “Rarest  of  the  rare  case”  comes  when  a  convict  would  be  a  

menace and threat to the harmonious and peaceful co-existence of the  

society.    The crime may be heinous or brutal but may not be in the  

category  of  “rarest  of  the  rare  case”.   There  must  be  no  reason  to  

believe that the accused cannot be reformed or rehabilitated and that he  

is  likely  to  continue criminal  acts  of  violence as  would constitute  a  

continuing threat to the society. The accused may be a menace to the  

society  and  would  continue  to  be  so,  threatening  its  peaceful  and  

harmonious co-existence. The manner in which the crime is committed  

must be such that it may result in intense and extreme indignation of the  

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community and shock the collective conscience of the society.  Where  

an accused does not act on any spur-of-the-moment provocation and  

indulges  himself  in  a  deliberately  planned  crime  and  meticulously  

executes it, the death sentence may be the most appropriate punishment  

for such a ghastly crime.  The death sentence may be warranted where  

the victims are innocent children and helpless women.  Thus, in case  

the crime is committed in a most cruel and inhuman manner which is an  

extremely brutal, grotesque, diabolical, revolting and dastardly manner,  

where his act affects the entire moral fiber of the society, e.g. crime  

committed  for  power  or  political  ambition  or  indulge  in  organized  

criminal  activities,   death  sentence  should  be  awarded.  (See:  C.  

Muniappan & Ors.  v.  State  of  Tamil  Nadu, AIR 2010 SC 3718;  

Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2  

SCC 490;  Surendra Koli v. State of UP & Ors., (2011) 4 SCC 80;  

Mohd. Mannan (supra); and  Sudam @ Rahul  Kaniram  Jadhav   v.  

State of Maharashtra, (2011) 7 SCC 125).  

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

must be existence of aggravating circumstances and the consequential  

absence of  mitigating  circumstances.   As to  whether  death  sentence  

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

in  hand.

16. The instant appeals are required to be decided in the light of the  

aforesaid settled propositions of law.  

CIRCUMSTANCES:

17. The following circumstances have been taken into consideration  

by the courts below while convicting the appellant:  

(1) Incident occurred in the house of the appellant.  

(2) Appellant  was  present  at  his  house  when  the  children  were playing.  

(3) Appellant  had  an  opportunity  to  take  Pooja  inside  the  house.

(4) During play Pooja was found missing.  

(5) Nitesh (PW.3) saw Pooja in the house of the appellant  and asked him about it and he denied.  

(6) Appellant admitted before his mother and son Khushal  (PW.10) to have killed Pooja.  

(7) Khushal  (PW.10)  had  given  information  at  the  Police  Station that his father/appellant killed Pooja and put the  dead body below the cot in his house.

(8) Police Head Constable G.R. More (PW.4), Ashok (PW.2)  and Deepak Jawahar Agarwal (PW.8) went to the house  of the appellant and recovered  the dead body of Pooja.  

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Explanation given by the appellant that he had gone to  liquor shop for drinking leaving his house open was not  found to be acceptable.

(9) Recovery of rope used in the crime at the instance of the  appellant from his house.

(10) Person  other  than  the  appellant  had  no  opportunity  to  commit the crime.  

18. So far as the first circumstance is concerned, material on record  

reveals that:  

I. Pooja’s  dead  body  was  found  in  the  house  of  the  

appellant.  

II. Ashok (PW.2) who took out the dead body stated that the  

frock and knickers of the deceased were stained with blood.  

III.  Clothes  of  the  deceased  were  seized  under  panchanama  

Ex.20.  Panchanama also shows that  the  clothes  were  stained  

with  blood.  Ravindera  Pawar,  PSI  who  conducted  this  

panchanama has also stated about this fact.  Cloth pieces and  

bed sheet as well as the frock and knickers sent for chemical  

analysis.

IV. As  per  the  Chemical  Analysis  Report,  Ex.49,  these  

articles were having human blood.  

V. The medical evidence referred earlier as well as inquest  

panchanama, the admitted document, point out that Pooja was  

sexually assaulted before murder.  

VI. Spot  panchanama  Ex.24  stood  proved  through  panch  

witness Mohd. Sharif.  This witness has stated that there was a  

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bed sheet on the cot and it was having blood  stains over it. The  

blood stains were also found below the cot on the floor.

VII. The bed sheet as well as two cloth pieces having blood  

stains were seized by the police.  

19. There  is  no  reason  to  disbelieve  the  above  evidence/factors.  

Moreover, this aspect has not been challenged by the appellant at any  

stage of the proceedings.  The fact  that  blood was found on the bed  

sheet, on the cot as well as on the floor below the cot clearly indicates  

that the incident occurred there only. It is very unlikely that the culprit  

committed  the  heinous  act  elsewhere  and  then  placed  Pooja’s  dead  

body in appellant’s house.  

20. It  has  come  on  record  that  after  finding  Pooja  missing,  her  

brother Nitesh (PW.3) searched for her. On receiving the information  

that  Pooja  was  missing  her  mother  Smt.  Tara  (PW.1)  came  and  

searched for her. In such a fact-situation, where people came to know  

about the disappearance of Pooja within a very short span of time,  the  

culprit could not have had any opportunity to transfer the body from  

any other place to the appellant’s  house. It  was on the basis of the  

above that  the  courts  below came to  the  conclusion  that  Pooja  was  

raped and murdered in the house of the appellant. The appellant in his  

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examination under Section 313 of Code of Criminal Procedure, 1973,  

(hereinafter called ‘Cr.P.C.), while answering Question Nos. 27, 28 and  

29 himself  admitted  that  he was  sitting outside his  house when the  

police arrived. The police had searched his house and the dead body of  

Pooja lying below the cot in his house was recovered.  We do not see  

any cogent reason to interfere with finding of facts recorded by the  

courts below on this count.   

21. The second circumstance against the appellant had been that he  

was present at the place of occurrence when the children were playing.  

Both  the  courts  below  have  appreciated  the  evidence  on  record  

particularly deposition of Nitesh (PW.3) and held that appellant was  

present at the place of occurrence at the relevant time. Nothing could  

be brought to our notice to contradict the findings of the courts below.  

Of  course,  the  Trial  Court  did  not  accept  the  evidence  of  Nitesh  

(PW.3), 12 years old child to the extent that the appellant had offered  

chocolates to him and Pooja, though Pooja had accepted it but Nitesh  

(PW.3) did not accept the same. The High Court while dealing with the  

evidence of Nitesh (PW.3) held that the children had been playing in  

front of his house and the appellant had called them and given them  

chocolates.  Discrepancy remained regarding acceptance of chocolate  

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by Nitesh (PW.3), which of course, is not relevant enough for the case  

taking into consideration the other circumstances.  

22. So  far  as  the  third  circumstance  is  concerned,  admittedly,  

appellant had been living for a long long time in close vicinity of the  

house of  Pooja, deceased and was very well acquainted with the victim  

as  well  as  her  family  members.   The  admitted  fact  remained  that  

appellant’s mother and son, who were the other inmates of his house,  

had gone out to procure the medicines to cure his addiction and on the  

fateful day, appellant was alone in his house.  The children  had been  

busy in running here and there as they were playing hide and seek.  

Thus, it was not possible in such a fact-situation that every child could  

remain  attentive  on  every  moment  about  other  children.   Such  

circumstance gives an opportunity to a person having evil design. Thus,  

appellant had an opportunity to take the victim Pooja inside the house.  

23. The fourth circumstance stood fully proved by the evidence on  

record, particularly by the depositions of Smt. Tara (PW.1) and  Nitesh  

(PW.3).  Nitesh  (PW.3)  deposed  that  as  Pooja  had  disappeared  he  

searched for her and as he could not find her out, he went to inform his  

mother Smt. Tara (PW.1), who at that relevant time had been at Shagun  

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Chowk. Smt. Tara (PW.1) came back and searched for Pooja. More so,  

this  part  of  the  prosecution  case  has  never  been  challenged  by  the  

defence and it stands proved that Pooja disappeared while playing in  

front of the house of the appellant that evening.  

24. The fifth circumstance  had been that Nitesh (PW.3) saw Pooja  

in the house of the appellant and on being asked, the appellant denied  

her presence. Nitesh (PW.3) is a child witness as at the relevant time he  

was 12 years of age. When he noticed that Pooja was not seen at the  

place of play he searched for her and asked in the neighbourhood  and  

when he could not trace her, only then he went to inform his mother  

Smt. Tara (PW.1) at Shagun Chowk and returned with her. They both  

searched for Pooja and as they failed to find her out, Smt. Tara (PW.1)  

went to the police and Nitesh (PW.3) stayed at home. Up to this extent,  

the prosecution case has not been challenged by the appellant. Nitesh  

(PW.3) has deposed that after his mother left for the police station, his  

friend  came  and  told  him  that  his  sister  was  in  the  house  of  the  

appellant.   So,  Nitesh (PW.3)  went there  from the back side of  the  

house and saw Pooja lying in the room.  He went to one Semabai and  

told her about it. Semabai entered the house from the backside of the  

house of  the appellant,  however,  could not  see Pooja there.   Nitesh  

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(PW.3) asked the appellant  about  Pooja  but  he denied that  she  was  

there.  The  Trial  Court  after  appreciating  the  entire  evidence  on  the  

issue came to the conclusion that it was nothing but an imagination of  

Nitesh  (PW.3)  and  this  circumstance  was  not  proved.  We  have  

examined the evidence of Nitesh (PW.3) on this issue and we are of the  

considered opinion that conclusion reached by the Trial Court on the  

issue is correct and does not require any interference.  

25. Circumstance No.6 relates to an extra-judicial confession by the  

appellant before his mother and son Khushal (PW.10) to the extent that  

he had killed Pooja.  According to the prosecution, Khushal (PW.10)  

alongwith  his  grandmother  had gone to  Kalyan  and returned in  the  

night and found that the lights of the house were off and the appellant  

was  present  therein.   The  appellant  became  annoyed  as  Khushal  

(PW.10) put on the lights and so Khushal (PW.10) put the lights off.  

When  he again put on the lights the appellant became very angry, on  

this the appellant’s mother came in and at that time the appellant told  

them that he had committed the murder of Pooja and threatened them  

not to disclose to anybody.  Khushal (PW.10) ran out of the house,  

went  to  the  police  station  and  revealed  this  fact.   The  prosecution  

examined  Khushal  (PW.10),  however,  he  was  declared  hostile.  

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Appellant’s mother was not examined. Thus, the issue of extra-judicial  

confession was not proved. There is not enough evidence on record to  

prove this circumstance against the appellant   

26.         So far as the other part of this issue that Khushal (PW.10) had  

informed the police that the dead body was lying below the cot in his  

house,  the  courts  below appreciated  his  evidence with  full  care  and  

caution, being a hostile witness, as Khushal (PW.10) denied that he had  

gone to the police station in the night and gave information.  The Trial  

Court  came  to  the  conclusion  that  evidence  of  Smt.  Tara  (PW.1),  

Ashok  (PW.2),  Deepak  Jawahar  Agarwal  (PW.8),  and  G.R.  More  

(PW.4) were enough to establish that when police was recording the  

complaint of Smt. Tara (PW.1),  Khushal (PW.10) reached the police  

station crying and told them that his father had killed Pooja and kept  

the  dead  body  below  the  cot  in  his  house.  None  of  the  aforesaid  

witnesses had any animosity with the appellant and thus, there could be  

no  reason  to  enrope  him  falsely.  The  evidence  on  this  point  

particularly, is nowhere shakened during their cross-examination.  The  

information was given to the police  in close vicinity  at  the  time of  

commission of the crime, though exact time of death is not known. The  

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courts below found the circumstance fully proved and we concur with  

the said finding.   

27. So far as the eighth circumstance is concerned, it relates to the  

recovery of the dead body of Pooja from the house of the appellant. It  

is admitted in view of the depositions of  Ashok (PW.2), G.R. More  

(PW.4) and Deepak Jawahar Agarwal (PW.8) that  the dead body of  

Pooja was recovered from the house of  the  appellant.  According to  

Deepak Jawahar Agarwal (PW.8), he had gone to police station along  

with Smt. Tara (PW.1) and it was in his presence that Khushal (PW.10)  

has reached the police station and revealed that his father had killed  

Pooja and dead body was lying below the cot. He has further deposed  

that they came with the police to the house of the appellant and entered  

his house. During search, Ashok (PW.2) father of the deceased saw the  

dead body. It was taken out and put on a handcart. The appellant was  

standing  in  front  of  the  house  and  the  police  caught  him.   In  the  

suggestion  put  to  him,  he  has  denied  that  he  was  deposing  falsely.  

Ashok (PW.2), father of Pooja, deceased has corroborated the evidence  

of Deepak Jawahar Agarwal (PW.8) fully to the extent that he was also  

at the police station when Khushal came and revealed the fact that his  

father  had  killed  Pooja.  He  further  deposed  that  he  along  with  the  

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policemen, entered the house of the appellant and recovered the dead  

body of his daughter, Pooja as it was lying below the cot in the house  

of the appellant.   Similarly, G.R. More (PW.4), Head Constable had  

deposed in this regard that he entered the house of the appellant along  

with  Ashok  (PW.2)  and  Deepak  Jawahar  Agarwal  (PW.8).   They  

searched the house and saw that a girl was lying below the cot therein.  

Ashok (PW.2) had taken her out. She was motionless. She was kept on  

a handcart. Appellant has admitted the recovery of Pooja’s body from  

his house while answering Question No.29 in his examination under  

Section 313 Cr.P.C.  Thus, this circumstance to the extent that the dead  

body was recovered from the house of the appellant stood fully proved.  

The  explanation  furnished  by  the  appellant  that  he  had  

gone to liquor shop for drinks leaving his house open, had to be proved  

by him in view of the provisions of Section 106 of Indian Evidence  

Act,  1872,  which  he  miserably  failed  and  the  courts  below  have  

disbelieved him.  Learned counsel for the appellant could not point out  

any single evidence on the basis of which a contrary inference can be  

drawn.  

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28. The recovery of rope used in the crime has been disbelieved by  

the Trial Court on the ground that such ropes were easily available in  

the market.  Rope so recovered did not contain any special  mark for  

identification. The police had entered the house prior to Panchanama.  

Therefore, it could not be established  that the same rope had been used  

while  committing  the  crime.  Death  was  caused  by  strangulation.  

Though the High Court  has  found sufficient  material  to  believe the  

recovery of the rope but in view of the fact that there was nothing on  

record to show that same rope had been used for committing the crime,  

the finding so recorded by the High Court loses significance.  

29. This brings us to the next circumstance as to whether any other  

person had an opportunity to commit the crime. The dead body was  

found from the house of the appellant. Any outsider may not know that  

the appellant’s mother and son had gone out and they would not return  

till night. The outsider must not have an idea that house was lying open  

and no person was present  inside.   It  is  not  probable  that  a  person  

having no concern with such a house would dare to take a girl inside  

the house to fulfill lust and to kill her. The rape was committed on the  

cot that is why blood stains were found on it.  No outsider could have  

committed rape so comfortably using the cot in someone else’s house.  

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The dead body was found below the cot that indicates that the accused  

attempted  to  conceal  the  body.  Had  any  outsider  done  it,  after  

committing the crime he would have run away leaving the dead body  

on  the cot itself as he would have no reason to be afraid of search and  

trace of  the dead body.  In fact, such a fear exists in the mind of a  

person to whom the house belongs. The outsider would not make any  

attempt to conceal the dead body, as his prime concern remains to run  

away after commission of the crime.   

The  evidence  led  by  the  prosecution  clearly  establishes  the  

aforesaid circumstances.  

30. Out of the aforesaid circumstances, only a very few which are  

immaterial and are not vital to determine the case, stood fully proved  

against  the  appellant.  In  such  a  fact-situation,  we  do  not  find  any  

cogent  reason  to  interfere  with  the  well-reasoned  judgments  of  the  

courts below so far as the conviction of the appellant is concerned, and  

we affirm his conviction under Sections 302 and 376 IPC.   

So far as the sentence part is concerned, in view of the law  

referred to hereinabove, we are of the considered opinion that the case  

does not fall within the “rarest of rare cases”. The High Court was not  

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justified  in  enhancing  the  punishment.  Thus,  in  the  facts  and  

circumstances  of  the  case,  we  set  aside  the  punishment  of  death  

sentence awarded by the High Court and restore the sentence of life  

imprisonment awarded by the Trial Court.    

With this modification, the appeals stand disposed of.   

    ……………………………J.      (P. SATHASIVAM)

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

New Delhi,  September 20, 2011

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