IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1794­1796 OF 2017

Prahlad       ..Appellant

Versus

State of Rajasthan            ..Respondents

O R D E R

These appeals are presented by the convicted

accused/appellant (hereinafter referred to as ‘accused’) against the

judgment dated 1.9.2016 passed by the High Court of Judicature at

Rajasthan  in  D.B.  Criminal  Murder (Death)  Reference  No.  01  of

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2015, D.B. Criminal Appeal Nos. 970 of 2015 and D.B. Criminal

Jail Appeal No. 1011 of 2015. By the impugned judgment, the High

Court confirmed the judgment dated 18.9.2015 passed by the

District and Sessions Judge, Pratapgarh, imposing capital

punishment in Sessions Case No. 149 of 2013 for committing

offences punishable under Section 302 IPC, and under Sections 3

and 4 of The Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as ‘the POCSO Act’).

2. The case of the prosecution in brief is that the minor daughter

(X) of the informant Prabhu Lal, aged about 8 years, was taken at

around 4.00 p.m. on 5.7.2013 while she was playing along with

other children at the informant’s house. She was taken away by the

accused on the pretext of giving her chocolates from a shop.

However, the minor victim (X) did not come back. The informant,

his brother Bhanwar Lal, and other family members were not in the

house that  evening at the relevant time and they were  informed

about the incident subsequently by the informant’s niece Lali when

they came back to their house. They searched for the girl

throughout the night,  however in the morning to the informant’s

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dismay, the body of X was found near the house of Nagji, son of

Gautam Meena. The first information was lodged at 1.00 p.m. on

6.7.2013 by the father of X, with the allegations of rape and murder

against the accused. The Trial Court upon evaluation of the

material on record, convicted the accused for the offences

punishable under Section 302 IPC, and under Sections 3 and 4 of

POCSO Act, vide judgment dated 18.9.2015 and passed the

sentence of capital punishment. Consequently, the Trial Court

made reference to the High Court under Section 366 of Cr.P.C. for

the confirmation of this death sentence. The accused also preferred

appeals against the judgment and order of conviction, and sought

for acquittal. The reference was allowed, and the appeals filed by

the convicted accused came to be dismissed by the High Court.   

3. The  learned counsel for the accused taking us  through the

material on record submits that the Trial Court is not justified in

convicting the accused for the offences under Section 302 IPC as

well as under Section 4 of the POCSO  Act. The case rests on

circumstantial evidence and these circumstances are not duly

proved. He further argues that the chain of circumstances is not

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complete and, therefore,  the accused  is entitled  for acquittal.  He

also submits that, absolutely no evidence is found on record against

him for the offences under Sections 3 and 4 of the POCSO Act.

Lastly, he submits that the imposition of capital punishment on the

accused is illegal, and the case at hand is not a rarest of the rare

case.

Per contra, the learned counsel for the State argues in support

of the judgments of the courts below.

4. The present case rests on circumstantial evidence. The

evidence of PWs 1, 2, 3 and 4 clearly prove that the mother of the

deceased was treating the accused as her own brother, and on the

eve of Rakhi festival, she even used to tie Rakhi on the hand of the

accused. Hence, the child of the informant was treating the accused

as a maternal uncle and this fact was also known to all the villagers

because the accused used to visit the residence of the informant as

one of their relatives. All the family  members of the informant

trusted the accused. Since the deceased was treating the accused

as her uncle, she did not have any reason to disbelieve or doubt the

offer made to go with him for getting the chocolates.

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5. PW2, Lali @ Lalita has deposed that the accused came to the

house of the informant and took  his daughter  with him. PW4,

Chameli  also has deposed that,  on the date  of the  incident, the

accused took the minor victim on the pretext of giving her

chocolates and also deposed that, at the point of time of the

incident, the child  was  8 years of age.  Because  of the cordial

relationship the accused had with the victim’s family, PWs 2 and 4

thought that the accused had taken the child genuinely for getting

her chocolates without any ill intentions.

6. From the evidence of PWs 2 and 4 as well as the evidence of

the informant PW1, it  is clear that the accused was treated as a

family member of the informant and that the minor victim believed

that the accused is her Mama (uncle) due to the trust her family

had upon the accused,  because of  which, the victim went along

with the accused when she was offered the chocolates and toffee.

The  evidence  also supports the case  of the  prosecution fully in

respect of the last seen circumstance.

7. PW5, Sattu is a shopkeeper from whom the accused purchased

the chocolates, biscuit and miraz. The evidence of PW7, Shyam Lal

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also supports the evidence of PW5 relating to the purchase of

chocolates and miraz  from the shop. PW9, Dashrath also supports

the evidence of the prosecution, more particularly the evidence of

PW1.

8. PW10, Dr. O.P. Dayma, is the member of the Medical Board

along with two other doctors who examined the dead body of the

victim. They preserved smear from the vagina of the deceased girl,

prepared slides and sent it for Forensic Science Laboratory

examination. PW10 deposed that, on  medical examination, five

injuries were found which were on the thighs, right leg, nose and

right wrist of the victim. In the post mortem report, PW10 opined

that the cause of death was due to hemorrhage shock. PW11, Dr.

Neelam Gupta reiterated the proceedings of the post mortem

examination as well as the opinion reached.

9. No explanation is forthcoming from the statement of the

accused under Section 313 Cr.P.C. as to when he parted the

company of the victim.   Also, no explanation is there as to what

happened after getting the chocolates for the victim.  The silence on

the part of the accused, in such a matter wherein he is expected to

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come out with an explanation, leads to an adverse inference against

the accused.

10. We find that there is ample material against the accused to

convict him for the offence under Section 302 IPC. All the

circumstances relied upon by the prosecution stand proved so as to

complete the chain of circumstances in respect of the offence under

Section 302 of the IPC.  The Trial Court and the High Court are, on

facts, justified in convicting the accused for the offence under

Section 302 of the IPC.   However, we are unable to  find reliable

material against the accused for the offences under Section 3 and 4

of the POCSO Act.

11. The post­mortem report reveals the following injuries on the

body of the victim:

1. 3x1 cm on left thigh on anterior knee.

2. 6x1 cm on right leg.

3. 2x1 cm abrasion on right thigh.

4. 1x1.5 cm on nose.

5. 1x1 cm on right wrist.

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In the Examination­in­Chief itself, the doctor PW10 who

conducted the post­mortem examination has deposed that the

genital organs of the victim were normal.  The doctor further opined

that the death of the deceased was caused due to acute

hemorrhage. Post­mortem report is at Ex. P15. In the cross­

examination, the doctor has admitted that all the aforementioned

five injuries are simple in nature and they are likely to be caused by

falling. Fracture on the left rib nos. 10 and 11 mentioned in the

post­mortem report can  be caused  by falling on  a stone.  PW10

further stated that the genital organs of the deceased were healthy

and no marks of any injury were present on the private parts of the

deceased. Signs of sperm ejaculation were also not found on the

external skin near the genital organs of the deceased. No injury was

present on the head of the deceased. The doctor further deposed

that when forcible sexual intercourse is committed upon a tender

girl, there is a possibility of her vagina getting ruptured and

bleeding from her genitals. There is no such mention in the post­

mortem report. The FSL report regarding vaginal swab which was

sent for examination is not helpful for the prosecution to prove the

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offence  under  Sections  3  and 4 of the  POCSO Act.  Prosecution,

practically  relies  upon the doctor’s  evidence only for  proving  the

offence under Section 4 of the POCSO Act.  No other material is

placed  on record  by the  prosecution to  prove the  offence  under

Section 4 of the POCSO Act.  However, the evidence relating to

penetration into the vagina, mouth, urethra or anus of a child etc.

or any part of the body is not found. The Trial Court as well as the

High Court have not gone into the depth of the evidence relating to

offence of penetrative sexual assault, in detail. Certain casual

observations are made which are not supported by the evidence led

by the prosecution.  In light of the aforementioned evidence of PW10

doctor, and in view of the fact that no other reliable evidence exists

to prove the charge of penetrative sexual assault, i.e. any of the acts

as  detailed in  Section 3 of the POCSO Act, it is  our considered

opinion that the Trial Court and the High Court are not justified in

convicting the accused for the offence under Section 4 of the

POCSO Act.  We  find from  the judgment  of the  High Court that

absolutely no reason, much less any valid reasons were assigned for

convicting the accused for the offence punishable under the POCSO

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Act. Since no reliable material is available against the accused for

the aforementioned offence of the POCSO Act, the benefit of doubt

would go in the favour of the accused. After scanning through the

entire materials on record in order to satisfy the conscience, and

having regard to the seriousness of the charge, we conclude that

the accused needs to be given the benefit of doubt in so far as the

offence punishable under Section 4 of the POCSO Act is concerned.

12. Since the accused is to be acquitted for offence under Section

4 of the POCSO Act, in our considered opinion, this is not a fit case

to  impose the death penalty  on him,  inasmuch as  the appellant

does not have any criminal background, nor is he a habitual

offender.  Motive for the offence of murder is not clear and of course

it is generally hidden, known to the accused only.  Under such

circumstances, the court will have to see as to whether the case at

hand falls under the ‘rarest of the rare’ case category. The accused

was also young during the relevant point of time. The duty is on the

State to show that there is no possibility of reform or rehabilitation

of the accused. When the offence is not gruesome, not cold­blooded

murder,  nor is  committed  in a  diabolical  manner, the court  will

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impose life imprisonment.   In the case at hand, the  mitigating

factors outweigh the aggravating factors. The only aggravating

factor in the  matter is that the accused took advantage of his

position in the  victim’s family for  committing the  murder  of the

minor girl inasmuch as the minor girl was treating the accused as

her Mama (uncle).

13. We do not find that the murder has been committed with

extreme brutality or that the same involves exceptional depravity.

On the other hand, as mentioned supra, the accused was young

and the probability that he would commit criminal acts of violence

in the future is not available on record. There is every probability

that the accused can be reformed and rehabilitated. In this context,

the observations made by this Court in the case of Bachan Singh v.

State of Punjab1, is reproduced as follows:

“209. There are numerous other circumstances justifying the passing of  the  lighter sentence; as there are countervailing circumstances of aggravation. “We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.” Nonetheless, it cannot

1 (1980) 2 SCC 684.

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be over­emphasised that the scope and concept of mitigating factors in the area of death penalty  must receive  a liberal  and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency­ a fact  which  attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to  voice the  concern that courts, aided by the broad illustrative guidelines  indicated by us, will  discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of  murder, life imprisonment  is the  rule  and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

14. Be that as it may, since the offence of rape is not proved and

as the offence of murder is proved beyond reasonable doubt, the

accused is liable to be convicted for the offence under Section 302

IPC.  In view of the aforementioned reasons, the  judgment of  the

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Trial Court as well as the High Court convicting the accused for the

offences under Sections 3 and 4 of the POCSO Act and imposing

capital punishment on him stands set aside. However, for the

offence under Section 302 IPC, the accused is sentenced to undergo

imprisonment for life. Appeals are partly allowed in the aforesaid

terms.

.................................................J. (N. V. RAMANA)

.................................................J. (MOHAN M. SHANTANAGOUDAR)

.................................................J. (MUKESHKUMAR RASIKBHAI SHAH)

New Delhi; November 14, 2018.

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