REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO.379 OF 2009

MD. MANNAN @ ABDUL MANNAN         .... APPELLANT

VERSUS

STATE OF BIHAR                         ..... RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Appellant was put on trial for offence under Sections 366,  

376, 302 and 201 of the Indian Penal Code, 1860 (hereinafter  

referred  to  as  the  ‘Penal  Code’).   The  Trial  Court  by  its  

judgment  and  order  dated  29th of  May,  2007  passed  in  

Sessions Trial  No.220 of  2004 arising out  of  the  Manigachi  

P.S. Case No.13 of 2004  held  the appellant  guilty of  all  the

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charges and sentenced him to undergo rigorous imprisonment  

for 10 years for offence under Section 366 of the Penal Code,  

life  imprisonment  under  Section  376  of  the  Penal  Code,  

rigorous imprisonment for 7 years for offence under Section  

201 of  the Penal Code and death penalty for  offence under  

Section 302 of the Penal Code.  The trial court made Reference  

to the High Court for confirmation of the death sentence which  

led to registration of Death Reference No. 6 of 2007.  Appellant  

aggrieved by his conviction and sentence also preferred appeal  

which was registered as Criminal Appeal (DB) No. 963 of 2007.  

Both, the reference and appeal were heard together and by a  

common judgment dated 19th of  August,  2008,  the  Division  

Bench of  the  Patna High Court  accepted the  reference  and  

dismissed the appeal.

2. This is how the appellant is before us with the leave of  

the Court.

3. According to the prosecution, the appellant Md. Mannan  

was working as  mason and engaged for the plaster work at

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the residence of informant’s uncle  PW-8 Devikant Jha.  On  

28th of September, 2004, the appellant gave Rs.2/- to the niece  

of the informant, namely, Kalyani Kumari aged about 8 years  

to bring betel from a shop at Hanuman Chowk.  After some  

time,  appellant  left  the work,  went to the Hanuman Chowk  

and got seated Kalyani Kumari on the carrier of his bicycle.  

PW-5  Maya  Devi  and  other  women  heard  the  conversation  

which  the  appellant  was  having  with  Kalyani  Kumari.  

Appellant, according to women folk, asked Kalyani Kumari as  

to where her father lives to which she replied that he stays at  

Bombay.  A search was made when Kalyani Kumari did not  

return  home  for  sometime  and  in  the  course  thereof,  it  

surfaced that she was seen going on a bicycle with a man.  

The informant  Sharwan Kumar Jha (PW-10)  and his  family  

members set  out  in  search of  the  girl  and while  they  were  

returning  from  Bahera  saw  the  appellant  going  towards  

Bahera.  Appellant tried to escape but was apprehended and  

on enquiry he showed ignorance about the girl.  Appellant was  

brought to the residence of the informant where PW-5 Maya  

Devi disclosed that she had seen the appellant who had taken

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away Kalyani Kumari on his bicycle.  Thereafter, the appellant  

was  brought  to  the  Police  Station  and  handed  over  to  the  

officer-in-charge  with  a  written  report,  for  taking  suitable  

action,  alleging  that  the  appellant  had  kidnapped  Kalyani  

Kumari.  On the basis of the aforesaid information, a case was  

registered and PW-11 Hari Ram, the officer-in-charge took up  

the investigation.   

4. During the course of investigation, the appellant gave a  

confessional statement in the presence of the witnessess Amar  

Kishore  Jha  (PW-2)  and  Devi  Kant  Jha  (PW-8)  and  other  

villagers.  The appellant confessed his guilt and disclosed the  

place where he had raped and killed Kalyani  Kumari.   The  

statement  given by  the  appellant  led  to  the  recovery of  the  

dead body of Kalyani Kumari from a field.  She was identified  

by  the  informant  and  other  villagers.   The  dead  body  of  

Kalyani Kumari had injury on the private parts, her nails were  

munched and there were marks of bruises all over the body.  

The Inquest Report was prepared and the dead body was sent  

for post-mortem examination which was conducted by PW-4

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Dr. Prafulla Kumar Das, a Tutor in the department of Forensic  

Medicine  and Toxicology  at  Darbhanga Medical  College  and  

Hospital.  Police, after usual investigation, submitted charge-

sheet against the appellant for kidnapping, raping and killing  

a minor girl and causing disappearance of evidence of offence.  

Appellant was ultimately committed to the Court of Sessions  

to face the trial, where charges under Sections 366, 376, 302  

and 201 of the IPC were framed against him.  Appellant denied  

to have committed any offence and claimed to be tried.   

5. The prosecution in order to bring home the charge has  

examined altogether 11 witnesses besides a large number of  

documentary evidence, including the First Information Report,  

the  Post-mortem  Report  and  the  Inquest  Report,  were  

exhibited.  The plea of the appellant in the statement under  

Section  313  of  the  Code  of  Criminal  Procedure  is  denial  

simplicitor and false implication.  However, no defence witness  

has been examined.

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6. There  is  no  eye-witness  to  the  occurrence  and  the  

prosecution sought to bring home the charge on the basis of  

the circumstantial evidence.   

Those are:

(i) Appellant  was working as Mason in the  House of  

Devi Kant Jha (PW-8);

(ii) Appellant sent the deceased to the betel-shop to get  

betel;

(iii) Appellant  proceeded  towards  the  betel-shop  few  

minutes after the deceased left;  

(iv) Appellant  was  last  seen  with  the  deceased  going  

together on a bicycle and  

(v) Appellant’s  confession  leading  to  the  recovery  of  

dead body from a field.

7. All these circumstances led the trial Court to hold that  

the chain is complete which points towards the guilt  of  the  

appellant  and  accordingly  convicted  him as  above.   In  the  

opinion of the trial court, the case fell in category of the rarest  

of the rare cases and accordingly it inflicted the death penalty.  

The High Court concurred with the finding of the trial court  

and affirmed the conviction and while doing so, it observed as  

follows:

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“…..as  per  disclosure  made  by  the   appellant and on his disclosure the dead body was   recovered  from  a  lonely  place  surrounded  and   concealed  by  standing  crops  of  wheat  and  rahar.   Hence the part of the confession made by appellant   which  is  disclosure  regarding  the  place  where  the   dead body could be found, is clearly admissible as   evidence  under  Section  27  of  the  Indian  Evidence   Act.  Since the rape and murder on the victim girl has   been  proved  by  medical  evidence  and  since  such   offences  were  committed  against  the  victim  soon  after her kidnapping by the appellant, a presumption   arises against the appellant that he committed rape   and  murder  of  the  victim  and  tried  to  conceal  the   evidence  of  such  offence  by  hiding  the  body  at  a   lonely place concealed by standing crops.  No doubt   such  presumption  can  be  rebutted  if  reasonable   explanation could be given by the appellant.  But in   this case no such explanation has been brought on   record.  There is neither any defence witness nor any   reasonable  suggestion  to  the  witnesses  nor  any   explanation  by the  appellant  under  Section  313 of   the  Code  of  Criminal  Procedure.   Hence,  the   presumption remains un-rebutted.  The evidence on   record  and  the  entire  facts  and  circumstances   coupled with disclosure made by the appellant which   is  admissible  under  Section  27  of  the  Indian   Evidence  Act  prove  beyond  any  doubt  that  after   kidnapping  the  victim,  the  appellant  committed  the   offence  of  rape  followed  by  murder  upon  the   deceased and also committed offence of destroying   evidence  by concealing the dead body.”

8. While accepting the reference and upholding the death  

sentence, High Court observed as follows :

“I  have  considered  the  entire  facts  and  the   aforesaid  submissions  for  deciding  whether  the  

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death  penalty  awarded to  the  appellant  should be   confirmed or not.   In  this  regard,  it  is  noticed that   appellant is a matured man aged about 42-43 years.   He has committed the heinous and barbarous crime   of rape and murder of a girl aged about 7 years who   was thin built and of 4’ height.   Such a child was   incapable of arousing lust in normal situation.  She   was  kidnapped in  a planned manner  because she   was innocent and could not understand the design of   the  appellant.   She  became  helpless  victim  of  a   diabolic middle aged man whom the child could trust   as an elder person.  The medical evidence shows the   cruel  manner  of  causing  injuries  on the  face,  nails   and body of the child at the time of committing rape   which  was  followed by murder.   This was  all  pre- planned  as  is  apparent  from  the  manner  of   kidnapping  and  selection  of  a  lonely  place  where   crime was committed and body concealed.  Crime of   this nature against the child girl is definitely a crime   against  the  society.   The  facts  of  the  case,  the   offences  taken  together  along  with  the  age  of  the   victim and the age of the appellant clearly bring the   case in the category of “rarest of the rare cases” in   which interest of justice requires award of maximum  penalty.”

9. The  deceased  had  met  homicidal  death  and  was  

subjected  to  rape  have  not  been  questioned  before  us.  

However,  learned  Counsel  for  the  appellant  has  contended  

that the circumstances brought on record do not lead to one  

and the only conclusion towards the guilt of the appellant and

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therefore  the  appellant  deserves  to  be  given  the  benefit  of  

doubt.  

10. Mr. Gopal Singh, learned Counsel representing the State,  

however, supports the judgment of conviction and sentence.

11. We  have  bestowed  our  consideration  to  the  rival  

submissions.  In our opinion to bring home the guilt on the  

basis  of  the  circumstantial  evidence  the  prosecution has to  

establish that the circumstances proved lead to one and the  

only conclusion towards the guilt of the accused.  In a case  

based  on  circumstantial  evidence  the  circumstances  from  

which an inference of guilt is sought to be drawn are to be  

cogently and firmly established. The circumstances so proved  

must  unerringly  point  towards  the  guilt  of  the  accused.  It  

should form a chain so complete that there is no escape from  

the conclusion that the crime was committed by the accused  

and  none  else.  It  has  to  be  considered  within  all  human  

probability and not in fanciful manner.  In order to sustain  

conviction  circumstantial  evidence  must  be  complete  and  

must point towards the guilt of the accused.  Such evidence

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should not only be consistent with the guilt of the accused but  

inconsistent with his innocence. No hard and fast rule can be  

laid  to  say  that  particular  circumstances  are  conclusive  to  

establish guilt.   It  is  basically  a question of  appreciation of  

evidence  which  exercise  is  to  be  done  in  the  facts  and  

circumstances of each case.   

12. Bearing in mind the principles aforesaid, we now proceed  

to  consider  the  circumstantial  evidence  available  on  the  

record.   PW-1  Rajkumar  Jha  claimed  to  be  Mukhia  of  the  

Gram Panchayat  having  shop at  Hanuman Chowk and has  

stated  in  his  evidence  that  appellant  was  doing  work  of  a  

mason in the house of Devi Kant Jha (PW-8) who was grand-

father of deceased Kalyani.  He has claimed to have seen the  

appellant  coming  to  Hanuman  chowk  and  getting  seated  

Kalyani on his bicycle and taking her towards village Igharata.  

Thereafter Kalyani never returned nor the appellant came back  

till  evening when the search started.  He has further stated  

that appellant led the witnesses to the wheat field and showed

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the dead body of deceased Kalyani.  There was only a panty on  

the person of the dead body and no other clothes.

13. PW.2,  Amar  Kishore  Jha,  owned  a  shop  at  Hanuman  

Chauk and has stated in his evidence that he had seen the  

appellant getting Kalyani seated on his bicycle at the Chauk.  

He has further stated that Kalyani did not return till evening  

and then he along with PW.1,  Raj  Kumar Jha had gone to  

search her.  He is further a witness to the statement given by  

the appellant which led to the recovery of the dead body of  

Kalyani with marks of bruises at different places of her body.  

According to this witness her nails were munched.  

14. PW.3,  Phul  Jha,  is  the  owner  of  the  betel  shop  from  

where Kalyani had bought the betel. According to his evidence  

Kalyani  purchased  betel  from  his  shop  and  when  he  was  

returning  50  paise  she  asked  for  the  toffee  for  the  said  

amount.   According to his evidence when Kalyani got down  

from the shop, appellant came on a bicycle, took betel from  

her, got her seated on the carrier of the bicycle and took her  

towards the southern direction.  He is  also a witness to the

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confession of the appellant leading to the recovery of the dead  

body at the place pointed by the appellant.  PW.5, Maya Devi,  

is another witness who had seen the appellant along with the  

deceased in his  bicycle  and even the  conversation  she  had  

with the appellant.  She has deposed that the appellant asked  

Kalyani as to where her father resides to which she replied  

that her father lives in Bombay.  PW.6, Radhey Shyam Jha, is  

another witness who had seen the appellant and the deceased  

together on a bicycle.  He is further witness to the disclosure  

statement  made by the  appellant  leading to recovery of  the  

dead  body  of  the  Kalyani.  PW.8,  Debikant  Jha,  is  the  

grandfather of the deceased and is a witness to the recovery of  

the dead body of the Kalyani on the basis of the confessional  

statement  of  the  appellant.   PW.9,  Tapeshwar  Prasad,  is  

another witness who owned the shop at Hanuman Chauk and  

supported the case of  the prosecution.   He has stated that  

after Kalyani purchased the betel, the appellant reached there  

on bicycle,  got  her  seated on the  carrier  of  the bicycle  and  

went towards the southern direction.  He is also a witness to  

the recovery of the dead body of Kalyani on the basis of the

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statement  given  by  the  appellant.  PW.10,  Sharwan  Kumar  

Jha, is the informant of the case and also supported the case  

of the prosecution.

15. From the evidence of the aforesaid witness it is evident  

that the appellant was working as a mason in the house of the  

grandfather  of  the  deceased,  PW.8  Debi  Kant  Jha  and  the  

deceased  was  sent  by  him  to  the  betel  shop  to  get  betel.  

Evidence of the prosecution witnesses further prove beyond all  

reasonable doubt that appellant proceeded towards the betel  

shop  few  minutes  after  the  deceased  left  and  it  was  the  

appellant who was last seen with the deceased going together  

on a bicycle.   There is overwhelming evidence which proves  

beyond any shadow of doubt that the statement given by the  

appellant led to the recovery of the dead body of Kalyani from  

the  field.  In  our  opinion,  the  circumstances  so  proved  

unerringly  point  towards the  guilt  of  the  appellant  and the  

chain  is  so  complete  that  there  is  no  escape  from  the  

conclusion that the crime was committed by the appellant and

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none  else.  Accordingly  we  uphold  the  conviction  of  the  

appellant.

16. As observed earlier the trial court as also the High court  

had found the case in hand to be one of the rarest of the rare  

cases  and  accordingly  inflicted  the  death  sentence.   It  is  

contended by the learned counsel for the appellant that the  

case in hand does not fall within such category and as such  

the extreme penalty of death is not called for.

17. It is trite that death sentence can be inflicted only in a  

case  which comes within  the  category  of  rarest  of  the  rare  

cases but there is no hard and fast rule and the parameter to  

decide  this  vexed  issue.   This  Court  had  the  occasion  to  

consider the cases which can be termed as rarest of the rare  

cases  and  although  certain  comprehensive  guidelines  have  

been laid to adjudge this issue but no hard and fast formula of  

universal  application  has  been  laid  down  in  this  regard.  

Crimes  are  committed  in  so  different  and  distinct  

circumstances that it is impossible to lay down comprehensive

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guidelines  to  decide  this  issue.   Nevertheless  it  is  widely  

accepted that in deciding this question the number of persons  

killed is not decisive. Further crime being brutal and heinous  

itself do not turn the scale towards the death sentence.   When  

the  crime  is  committed  in  an  extremely  brutal,  grotesque,  

diabolical,  revolting  or  dastardly  manner  so  as  to  arouse  

intense and extreme indignation of the community and when  

collective conscience of the community is petrified, one has to  

lean towards the death sentence.  But this is not the end.  If  

these factors are present the court has to see as to whether  

the accused is a menace to the society and continue to be so,  

threatening  its  peaceful  and harmonious  co-existence.   The  

court  has  to  further  enquire  and  believe  that  the  accused  

condemned  cannot  be  reformed  or  rehabilitated  and  shall  

continue with the criminal acts.  In this way a balance-sheet is  

to be prepared while considering the imposition of penalty of  

death of  aggravating  and mitigating  circumstances and just  

balance  is  to  be  struck.   So  long  the  death  sentence  is  

provided in the statute and when collective conscience of the  

community  is  petrified,  it  is  expected  that  the  holders  of

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judicial power do not stammer, de hors their personal opinion  

and inflict death penalty.  These are the broad guidelines with  

this Court has laid down for imposition of the death penalty.   

18. When we test the present case bearing in mind what has  

been observed, we are of the opinion that the case in hand  

falls in the category of the rarest of the rare cases.  Appellant  

is a matured man aged about 43 years. He held a position of  

trust  and  misused  the  same  in  calculated  and  preplanned  

manner. He sent the girl aged about 7 years to buy betel and  

few minutes thereafter in order to execute his diabolical and  

grotesque desire proceeded towards the shop where she was  

sent. The girl was aged about 7 years of thin built and 4 feet of  

height  and  such  a  child  was  incapable  of  arousing  lust  in  

normal situation. Appellant had won the trust of the child and  

she  did  not  understand  the  desire  of  the  appellant  which  

would be evident from the fact that while she was being taken  

away by the appellant no protest was made and innocent child  

was made prey of the appellant’s lust.  The postmortem report  

shows various injuries on the face, nails and body of the child.

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These injuries show the gruesome manner in which she was  

subjected to rape.  The victim of crime is an innocent child  

who did not provide even an excuse, much less a provocation  

for murder. Such cruelty towards a young child is appalling.  

The appellant had stooped so low as to unleash his monstrous  

self on the innocent, helpless and defenceless child. This act  

no doubt had invited extreme indignation of the community  

and shocked the collective  conscience of  the  society.   Their  

expectation  from the  authority  conferred with  the  power  to  

adjudicate,  is  to inflict  the death sentence which is natural  

and logical.  We are of the opinion that appellant is a menace  

to the society and shall continue to be so and he can not be  

reformed.  We have no manner of doubt that the case in hand  

falls in the category of the rarest of the rare cases and the trial  

court  had  correctly  inflicted  the  death  sentence  which  had  

rightly been confirmed by the High Court.

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19. In the result, we do not find any merit in this appeal and  

same is dismissed accordingly.

……….………………………………..J.                               ( HARJIT SINGH BEDI )

..........………………………………..J.                                           ( CHANDRAMAULI KR. PRASAD ) NEW DELHI, APRIL 20, 2011.