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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  523 OF 2010

Neel Kumar @ Anil Kumar                                      ....Appellant  

Versus

The State of Haryana                                                ....Respondent

J U D G M E N T

Dr. B. S. CHAUHAN, J  .    

1. This criminal appeal has been preferred against the judgment  

and order dated 17.7.2009 passed by the High Court of Punjab and  

Haryana at Chandigarh  in Criminal Appeal No. 268-DB of 2009, by  

which it has affirmed the conviction of the appellant under Sections  

302/376(2)(f)  and  201  of  Indian  Penal  Code,  1860  (hereinafter  

referred  as  `IPC’)  and  accepted  the  death  reference  made  by the  

Additional  Sessions  Judge,  Yamuna  Nagar  at  Jagadhari  vide  

judgments  and  orders  dated  2.3.2009/6.3.2009  and  confirmed  the  

sentence of death.

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2. Facts and circumstances giving rise to this appeal are that :

A. Smt.  Roopa  Devi  (PW.3)  wife  of  Neel  Kumar  @  Anil  

Kumar – appellant, had gone to her parental home at village Kesri  

alongwith her minor son on  26.6.2007 leaving her two children i.e.  

Sanjana, daughter, 4 years old and Vishal, son, 2  years old at her  

matrimonial home with her husband – appellant. She had to return  

back on the same day but could not return and stayed at her parental  

home. On the same day, she received information by telephone at  

4.00 p.m. from her brother-in-law Ramesh Kumar that her husband  

had committed rape upon her 4 years old daughter Sanjana.  Roopa  

Devi (PW.3) came back to her matrimonial home on the next day i.e.  

27.6.2007 alongwith 5-7 persons including her family members and  

neighbours and found her daughter  Sanjana,  victim, in an injured  

condition.  The Panchayat was convened to resolve the problems.  

However,  the  Panchayat  could  not  resolve  the  dispute,  therefore,  

Roopa  Devi  (PW.3),  complainant,  returned  to  her  parental  home  

alongwith  accompanying  persons  leaving  her  injured  daughter  

Sanjana  and  son  Vishal  in  the  custody  of  the  appellant  at  her  

matrimonial home.  Roopa Devi (PW.3) wanted to take her injured  

daughter for medical help, but the appellant and his family members  

restricted her and even tried to snatch her 15 days old son from her.  

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B. Roopa Devi (PW.3) received a telephone call again from her  

brother-in-law  Ramesh  Kumar  on  28.6.2007  informing  her  that  

appellant had killed her daughter Sanjana.  She came there alongwith  

her  brother  Gulla  (PW.4)  and  lodged  the  report  to  P.S.  Bilaspur  

against  the  appellant  for  committing  the  rape  on her  4  years  old  

daughter Sanjana  on 26.6.2007 and against her brother-in-laws and  

appellant  for  committing   her  murder  on  27/28.6.2007  and  

concealing her dead body.  Thus,  on her complaint,  a  case under  

Sections  376(2)(f),  302,  201/34  IPC  vide  FIR   No.  91  dated  

28.6.2007 at Police Station Bilaspur (Haryana) was registered.  

C. Immediately, thereafter, on the same day i.e. 28.6.2007, on  

the  application  moved  by  the  Investigation  Officer,  the  Deputy  

Commissioner,  Yamuna  Nagar,  authorised  Shri  Narender  Singh,  

SDM, Jagadhari to pass an order of exhumation of the dead body  

from the graveyard and on such order being passed, the dead body  

was  recovered  from  the  graveyard.  It  was  photographed  and  an  

inquest report was prepared. Dead body was sent for post-mortem  

examination.   The requisite plan of place of recovery of dead body  

was  prepared.    The  Investigating  Officer  inspected  the  place  of  

occurrence on 29.6.2007 and prepared the site plan.   The appellant  

and  his  brothers  were  arrested  on  30.6.2007.   Appellant  was  

medically  examined  and  on  his  disclosure  statement,  the  

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Investigating Officer recovered one blood stained bed sheet from his  

house and further a gunny bag containing one Pajama, blood stained  

piece of cloth, pant, shirt and one pillow from a rainy culvert near  

Majaar of Peer on Kapal Mochan Road (Exts. P-23 and P-25).  

D. After filing the chargesheet, the case was committed to the  

Court of Sessions and on conclusion of the trial, the learned Sessions  

Judge vide judgment and order dated 2.3.2009 acquitted all other co-

accused but convicted the appellant  under Sections 302, 376(2)(f)  

and 201 IPC and vide order dated 6.3.2009  awarded death sentence  

under Section 302 IPC, life imprisonment under Section 376(2)(f)  

IPC and rigorous imprisonment for  3 years for  the offence under  

Section 201 IPC.  

E. Being  aggrieved,  the  appellant  preferred  Criminal  Appeal  

No. 268-DB of 2009 in the High Court of Punjab and Haryana at  

Chandigarh,  which was dismissed by the impugned judgment and  

order dated 17.7.2009 confirming the death sentence upon reference.  

             Hence, this appeal.  

3. Mr.  Shekhar  Prit  Jha,  learned  counsel  appearing  for  the  

appellant, has submitted that appellant has falsely been enroped in  

the  offence  by  the  complainant  Roopa  Devi  (PW.3)  as  the  

relationship between the husband and wife had been very strained.  

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Even, subsequently, she filed divorce petition against the appellant.  

It is quite unnatural that once the complainant Roopa Devi (PW.3)  

had come from her parental house to her matrimonial home, then, on  

being informed about  the rape  by the appellant  upon their  minor  

daughter of 4 years of age, the complainant would go back to her  

parental house leaving the girl in the custody of the appellant and  

that  too,  when  she  was  suffering  from  serious  vaginal  injuries.  

Since, the evidence of the complainant and her brother Gulla (PW.4)  

has been disbelieved in respect of four brothers of the appellant and  

they have been acquitted, the same evidence could not have been  

relied upon for convicting the appellant.   When the complainant left  

for her parental house on 27.6.2007, the children had been in the  

custody of appellant’s brother Ramesh Kumar and, therefore, there  

was no possibility of the appellant committing Sanjana’s murder.  It  

is by no means a case which falls in the category of rarest of rare  

cases  warranting  the  death  sentence.   The  appeal  deserves  to  be  

allowed.  

4. On the contrary, Mr. Kamal Mohan Gupta, learned counsel  

appearing  for  the  respondent  State,  has  vehemently  opposed  the  

appeal  contending that  the appellant  has committed most  heinous  

crime, if he can commit the rape of his own 4 years old daughter, the  

society cannot be safeguarded from such a person.  The manner in  

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which the  offence  has  been committed  and the  nature  of  injuries  

caused to the prosecutrix makes it evident that it is a rarest of rare  

case  wherein  no  punishment  other  than  death  sentence  could  be  

awarded, thus, the appeal lacks merit and is liable to be dismissed.  

5. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.   

6. Smt. Roopa Devi (PW.3), complainant has lodged the FIR  

dated  28.6.2007,  giving  the  complete  version  regarding  both  the  

criminal acts i.e. rape as well as murder of Sanjana.  This witness  

also gave details of the Panchayat convened to resolve the dispute  

and as the same was not resolved, Roopa Devi (PW.3), complainant,  

went back to her parental home leaving the two minor children with  

appellant.   She came back on receiving the information about the  

death of her daughter next day and lodged the complaint.   On the  

basis of the said complaint, FIR was registered on 28.6.2007 at 3.20  

p.m.  and investigation ensued. There is evidence on record to show  

that  after  getting  the  permission  on  the  order  of  Deputy  

Commissioner, Yamuna Nagar, the SDM concerned passed the order  

of exhumation of the dead body of Sanjana and it was sent for post-

mortem  examination.   The  post-mortem  report  suggested  the  

following injuries on her body:  

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“Lacerated wound present in vagina extending from   

anus to urethral opening admitting four fingers of   

size 6 x 4 cms.  Underlying muscles and ligaments   

were  exposed  and  anus  was  also  torned  and  on   

dissection uterus was perforated in the abdomen”.   

7. The prosecution case has  been supported by Gulla (PW.4),  

brother of the complainant, and further got support from the contents  

of  the divorce  petition filed  by Roopa Devi  (PW.3)  complainant,  

subsequently, wherein it had clearly been stated that the appellant  

had raped and murdered their 4 years old daughter Sanjana and in  

that  respect,  the  case  was  pending  in  the  criminal  court.   The  

recoveries had been made by Shri Suraj Bhan (PW.17), Investigating  

Officer on the basis of  disclosure statement made voluntarily by the  

appellant.

8. Accused Ramesh Kumar, brother of the appellant who had  

also faced trial   had supported the case of  the prosecution to the  

extent that he informed Roopa Devi (PW.3), complainant at Kesri  

about the commission of rape by the appellant on his daughter and  

further  deposed  that  on  hearing  such  a  news  she  had  come  to  

Bilaspur.  

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9.         Dr. Ashwani Kashyap (PW.2) conducted autopsy on the dead  

body of the deceased victim and as per his testimony and the post-

mortem report (Ext.P3) the cause of death was asphyxia because of  

throttling which was ante-mortem in nature and sufficient to cause  

death in ordinary course of events.  He also found vaginal and anal  

wounds on the deceased.  

10. Dr. Rajeev Mittal (PW.1) medically examined the appellant  

and as per his report there was no external injury on the genitals of  

the appellant. However, he opined that mere absence of injury on  

private parts of the appellant was no ground to draw an inference  

that  he  had  not  committed  forcible  sexual  intercourse  with  the  

victim.

11. Mukesh Garg (PW.11),  Sarpanch of  village  Bilaspur   has  

stated that the S.H.O. has narrated the facts of the case to him and  

the exhumation of the dead body from the graveyard  was done in  

pursuance of the order of the SDM, Jagadhari. The dead body had  

been buried by Neel Kumar (appellant) after committing rape and  

murder  of  the  victim.  Thus,  this  witness  was  associated  in  the  

investigation at the time of exhumation of the dead body.  

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12. Narender  Singh  (PW.12),  SDM  proved  the  report  of  ex-

humation of the dead body (Ext. P11) and stated that he carried out  

the same on getting the direction from the Deputy Commissioner.  

Ish Pal Singh (PW.15), Head Constable and Joginder Singh (PW.16)  

have supported the prosecution case being the witnesses of arrest and  

recovery  of  incriminating  material  at  the  voluntary  disclosure  

statement of the appellant.  

13. Madan (PW.14) was examined by the prosecution as an eye-

witness for the murder of Sanjana. However, he turned hostile and  

he did not support the case of the prosecution.   

14. Suraj Bhan (PW.17), Investigating Officer deposed that he  

had  recovered  the  dead  body  from the  graveyard  on  the  written  

permission of the SDM and the same was sent for the post-mortem  

after  preparing  the  inquest  report  under  Section  174  of  Code  of  

Criminal  Procedure,  1973  (hereinafter  called  ‘Cr.P.C.’)  He  had  

recorded the statement of witnesses under Section 161 Cr.P.C.  He  

inspected the spot of occurrence on 29.6.2007, prepared the site plan  

and  on  the  next  day  i.e.  on  30.6.2007,  arrested  the  appellant  

alongwith  his  brothers.  It  was  at  that  time  the  appellant  in  

interrogation made disclosure statement (Ext. P-23) and in pursuance  

thereof,  he  recovered  the  incriminating  material  as  referred  to  

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hereinabove.  The  said  articles  were  taken  into  possession  vide  

recovery memo Ext. P-25 and sent for FSL report.  Subsequently, the  

positive report was received.  

15. The trial court found the testimonies of Roopa Devi (PW.3)  

complainant,  Gulla  (PW.4),  maternal  uncle  of  the  victim,  Dr.  

Ashwani Kashyap (PW.2), Dr. Rajiv Mittal (PW.1) fully reliable and  

came  to  the  conclusion  that  it  was  quite  natural  that  Sanjana  

deceased could have made oral dying declaration before her mother  

Roopa Devi (PW.3), complainant.  However, even if it is ignored,  

there  were various circumstances  against  the appellant.  The court  

enumerated the said incriminating circumstances as under:  

(I)  The victim was in the custody of accused Neel Kumar @  

Anil Kumar.  

(II)   No explanation from the side of this accused as to how  

such severe injuries were suffered by the victim and how she  

met with death as these facts were in his special knowledge  

alone.  

(III)  Non information of  the crime by the  accused to  the  

police or other members of the family.  

(IV) Recovery of the blood stained clothes of the victim and  

the accused from the possession of accused on his disclosure  

statement.  

(V) Presence of blood on the clothes of the accused and no  

explanation thereof.  

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(VI) Abscondance of the accused after the occurrence.  

(VII)  Strong  motive  against  the  accused  for  murder  as  

charges of rape were being raised against him.  

16. The  learned  Sessions  Court  further  remarked  that  as  the  

victim  was  in  the  custody  of  the  appellant,  there  had  been  no  

explanation  from the  side  of  the  accused  as  to  how such  severe  

injuries were suffered by the victim and how she met with death as  

these facts were in his special knowledge alone.  The provisions of  

Section 106 of  the Indian  Evidence  Act,  1872 (hereinafter  called  

‘Evidence Act’)  were fully applicable in this case. Appellant was  

guardian of the child and was duty bound to safeguard the victim.  

The accused had kept mum and had not given any  information to  

any law enforcing agency or even to the mother of the victim.  It  

comes out from the statement  of    Roopa Devi   (PW.3)  that  the  

information about rape and murder to her was telephonically given  

by  co-accused  Ramesh  Kumar.   If  somebody  else  would  have  

committed  the  offence  it  was  but  natural  that  appellant  Neel  

Kumar@ Anil  Kumar  must  have  taken  steps  to  initiate  the  legal  

action to  find out the culprit. The silence on his part in spite of such  

grave  harm to  his  daughter  is  again  a  very  strong  incriminating  

circumstance against him.  

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  The High Court has agreed with the findings recorded by the  

trial court and confirmed the death sentence  after re-appreciating the  

evidence.  

17. In our opinion, the courts below have taken a correct view so  

far  as  the  application  of  Section  106  of  the  Evidence  Act  is  

concerned.  This  Court  in  Prithipal  Singh  &  Ors.  v.  State  of  

Punjab & Anr.  (2012) 1 SCC 10, considered the issue at length  

placing reliance upon its earlier judgments including State of West  

Bengal v. Mir Mohammad Omar & Ors. etc.etc.,  AIR 2000 SC  

2988; and  Sahadevan  @ Sagadevan v. State  rep. by Inspector of  

Police, Chennai, AIR 2003 SC 215 and held as under:  

“That if fact is especially in the knowledge of any   person,  then  burden  of  proving  that  fact  is  upon   him.  It  is  impossible  for  the prosecution  to  prove   certain  facts  particularly  within  the  knowledge  of   the accused. Section 106 is not intended to relieve   the prosecution of its burden to prove the guilt of the   accused beyond reasonable doubt.  But the section   would  apply  to  cases  where  the  prosecution  has   succeeded in proving facts from which a reasonable   inference can be drawn regarding the existence of   certain other facts, unless the accused by virtue of   his special knowledge regarding such facts, failed to   offer any explanation which might drive the court to   draw  a  different  inference.  Section  106  of  the   Evidence Act is designed to meet certain exceptional   cases,  in  which,  it  would  be  impossible  for  the   prosecution  to  establish  certain  facts  which  are   particularly within the knowledge of the accused”.

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(See also:  Santosh Kumar Singh v. State through CBI, (2010) 9  

SCC 747; and Manu Sao v. State of Bihar, (2010) 12 SCC 310).

       Thus, findings recorded by the courts below in this regard stand  

fortified by the aforesaid judgments.  

18. A shirt and pant belonging to the appellant recovered on the  

basis of his disclosure statement (Ext. P23) and taken into possession  

vide Memo Ext. P25 were sent to the FSL for examination.  Report  

of FSL (Ext.P18) shows that  shirt  and pant of  the appellant  were  

stained with blood.  However, no explanation has been given by the  

appellant  as to how the blood was present on his clothes.   

19. In  Pradeep  Singh  v.  State  of  Rajasthan AIR  2004  SC  

3781,  accused had not given any explanation for the presence of  

blood stains  on  his  pant  and shirt.   He had simply  pleaded false  

implication.  Presence  of  blood  on  his  clothes  was  found  to  be  

incriminating circumstance against him.  

             It is the duty of the accused to explain the incriminating  

circumstance proved against  him while making a statement  under  

Section  313  Cr.P.C.   Keeping  silent  and  not  furnishing  any  

explanation for such circumstance is an additional link in the chain  

of  circumstances  to  sustain  the charges  against  him.  Recovery  of  

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incriminating material at his disclosure statement duly proved is a  

very positive circumstance against him.  (See also:  Aftab Ahmad  

Anasari v. State of Uttaranchal, AIR 2010 SC 773).

20.     In view of the above, we do not find any cogent reason to take  

a view different from the view taken by the courts below and this  

leads  us  to  the  further  question  regarding  the  sentence  as  to  

whether it could be a rarest of rare case where imposition of death  

penalty is warranted.

21.      The extreme penalty of death need not be inflicted except in  

gravest  cases  of  extreme  culpability.  Before  opting  for  the  death  

penalty the circumstances of the offender also require to be taken  

into consideration alongwith the circumstances of the crime for the  

reason that life imprisonment is the rule and death sentence is an  

exception. The penalty of death sentence may be warranted only in a  

case where the court comes to the conclusion  that imposition of life  

imprisonment  is  totally  inadequate  having  regard  to  the  relevant  

circumstances of  the crime. The 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 mitigating  

circumstances before option is exercised.  

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22. After considering the issue at length, this  

court  in  State  of  Maharashtra  v.  

Goraksha Ambaji Adsul, AIR 2011 SC  

2689,   held as under:  

   “Awarding of  death  sentence  amounts  to  taking   away  the  life  of  an  individual,  which  is  the  most   valuable right  available,  whether  viewed from the   constitutional  point  of  view  or  from  the  human   rights  point  of  view.  The  condition  of  providing   special reasons for awarding death penalty is not to   be  construed  linguistically  but  it  is  to  satisfy  the   basic  features  of  a  reasoning  supporting  and  making award of death penalty unquestionable. The   circumstances  and  the  manner  of  committing  the   crime  should  be  such  that  it  pricks  the  judicial   conscience of the court to the extent that the only   and  inevitable  conclusion  should  be  awarding  of   death penalty.”

(See also:  Bachan Singh v. State of  Punjab AIR 1980 SC 898;  

Machchi Singh & Ors. v. State of Punjab AIR 1983 SC 957;  and  

Devender Pal Singh v. State NCT of Delhi  & Anr. AIR 2002 SC  

1661).  

23. A similar  view has  been  taken  by  this  Court  in  Haresh  

Mohandas Rajput  v.  State  of  Maharashtra (2011)  12 SCC 56  

observing as under:  

“The rarest of the rare case” comes when a convict   would be a menace and threat  to the harmonious   and peaceful coexistence of the society. The crime   

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

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

must  be  existence  of  aggravating  circumstances  and  the  

consequential absence of mitigating circumstances.  As to whether  

death sentence should be awarded, would depend upon the factual  

scenario of the case in hand.  

           The instant case is required to be examined in the light of the  

aforesaid settled legal propositions.   

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There is  no  reason  to  disbelieve  the  above  evidence  and  

circumstances nor there is any reason to doubt the commission of  

offence by the appellant and the recovery of incriminating material  

on his disclosure statement.  The incriminating circumstances taken  

into consideration by the courts below can reasonably be inferred.  

However, 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.  However,  

considering the nature of offence, age and relationship of the victim  

with the appellant and gravity of injuries caused to her,  appellant  

cannot be awarded a lenient punishment.   

25. A three Judge Bench of this Court in Swami Shraddananda  

@ Murali Manohar Mishra  v. State of Karnataka, AIR 2008 SC  

3040,  considering the facts  of  the case,  set  aside the sentence  of  

death  penalty  and  awarded  the  life  imprisonment  but  further  

explained that  in order to serve the ends of  justice,  the appellant  

therein would not be released from prison till the end of his life.   

26. Similarly, in Ramraj v. State of Chattisgarh, AIR 2010 SC  

420,  this  Court   while  setting  aside  the  death  sentence  made  a  

direction that the appellant therein would serve minimum period of  

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20 years including remissions earned and would not be released on  

completion of 14 years imprisonment.  

27.    Thus, in the facts and circumstances of the case, we set aside  

the death sentence and award life imprisonment. The appellant must  

serve  a  minimum  of  30  years  in  jail  without  remissions,  before  

consideration of his case for pre-mature release.

 28. The appeal stands disposed of.  

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

……………………………………….…J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)  

New Delhi, May 7,  2012

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