REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1523-1524 OF 2019

[Arising  out  of  Special  Leave  Petition(Crl.)Nos.  9254- 9255/2019 CRL.M.P. Nos. 5704-5705 OF 2017]

Ravishankar @ Baba Vishwakarma ..... Appellants(s)

                VERSUS

The State of Madhya Pradesh .....Respondents(s)

JUDGMENT

SURYA KANT, J.

Delay condoned.  Leave granted.

2. Hovering between life and death, the appellant assails the judgment

dated 6th December, 2016 passed by the High Court of Madhya Pradesh at

Jabalpur  whereby  the  death  reference  made  by  the  IIIrd  Additional

Sessions  Judge,  Gadarwara,  District  Narsinghpur  (M.P.)  has  been

confirmed and the appellant’s criminal appeal has been dismissed.

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Background:

3. The  appellant  was  tried  for  having  committed  offences  under

Sections 363,  366,  376(2)(i),  376(2)(n),  376(2)(j),  376(2)(m),  376-A, 302

and 201 of the Indian Penal Code (for short IPC) and alternatively under

the  corresponding  provisions  of  the  Protection  of  Children  from Sexual

Offences Act, 2012 (for short ‘POCSO Act’). Through judgment and order

dated 19th July 2016, the Trial Court held the appellant guilty of kidnapping

a 13  year-old  girl,  committing  rape on  her,  killing  her  by  throttling  and

thereafter destroying the evidence by throwing her half naked body in a dry

well.  These crimes were held as being ‘rarest of the rare’ and the appellant

was sentenced to death under Section  376-A of the Indian Penal Code,

1860 (I.P.C.). In terms of Section 366 of the Code of Criminal Procedure,

1973 (Cr.P.C.),  the Trial  Court  made a reference  to the High Court  for

confirmation of the death sentence. The appellant also filed criminal appeal

challenging this judgment and order passed by the Trial Court. The High

Court on 6th December 2016, through a common order, both dismissed his

appeal and confirmed the Trial Court’s death reference giving rise to this

special leave petition.

4. At the outset, it must be mentioned  that when the appellant’s special

leave petition came up for  hearing before a Three Judge Bench of  this

Court on 10th January, 2018, the following order was passed:

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“Mr.  Arjun  Garg,  learned counsel  for  the  State  prays  for  two weeks’ time to argue the matter on the conversion of sentence from death to life,  as we are not inclined to interfere with the conviction.

 xxx xxx xxx”

5. Thus,  the  limited  issue  which  survives  for  our  consideration  is

whether or  not  the appellant  deserves to be imposed with the extreme

sentence of death penalty?

6. As noted by this Court in Bhupinder Sharma v. State of Himachal

Pradesh1,  that  the mandate of  not disclosing identities of the victims of

sexual offences under Section 228A of I.P.C. ought to be observed in spirit

even by this Court:

“2. We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the "IPC") makes disclosure  of  identity  of  victim of  certain  offences punishable. Printing  or  publishing  name  of  any  matter  which  may  make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to  have  been  committed  can  be  punished.  True  it  is  the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object  of  preventing  social  victimization  or  ostracisms  of  the victim of  a  sexual  offence for  which  Section  228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated.  We have chosen to  describe her  as '  victim'  in  the judgment.”

We  are  thus  not  disclosing  the  victim’s  name  and  instead  are

referring to her as the “deceased” throughout this judgment.

1 (2003) 8 SCC 551

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Relevant Facts:

7. The necessary facts are to the following effect:  P.W.3 (Purushottam

Kaurav – grandfather of the deceased), resident of village Baglai  filed a

report at the Police Station at Gotitoria on 22nd May, 2015 at about 4.00

p.m.  giving  information  of  the  disappearance  of  his  13  year  old

granddaughter.  The deceased and her  11 year  old brother Harinarayan

were children of the informant’s younger son, Satyaprakash and had been

staying with their mother at the latter’s parental home in the neighbouring

village,  Chargaon,  for  the  last  four  months.   The  deceased  visited  the

informant’s home in village Baglai with her mother at around 10 a.m. the

previous day. The deceased did a few household chores while her mother

cooked food for the family. Later, she went out to play with her friend who

lived in the neighbourhood. Upon returning back she told her mother that

she was not feeling good and requested that they should return  back to

her maternal uncle’s home in Chargaon. Her mother assured her that they

would return later that afternoon and both of them went to sleep. Upon

waking up at 3.00 p.m., the mother discovered that the deceased was not

around.  The mother  made unsuccessful enquiries in the neighbourhood

and later  asked the  deceased’s  11 year  old  brother  to  go and enquire

whether she  had gone to Chargaon on her own. The brother came back in

the evening without any news of the victim. Thinking that their daughter

might  have  gone  to  her  paternal  aunt’s  home  in  the  nearby  village  of

Aadegaon,  both  parents  slept.  Next  morning  enquiries  were  made  at

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Aadegaon but it was informed that the deceased had not gone there either.

Worried, the mother herself left for her parental home at around 9-10 a.m.

and informed her  brother Vishram that the victim was missing.  Vishram

and the deceased’s mother set out on a wide search in the neighbourhoods

of Chargaon with little result. Whilst returning back to Baglai, the mother

identified the deceased’s salwar and one chappal on the embankment of

the water-channel which divided the villages of Baglai and Chargaon. Upon

reaching her matrimonial home in Baglai, the mother informed her father-

in-law   about  her  daughter’s  disappearance  who  then  approached  the

police.  P.W.3 thereafter narrated facts of  deceased’s disappearance and

gave description of his grand daughter who was studying in Class 6 at that

time. The Police, accordingly, registered a crime case under Section 363,

IPC.  

8. Subsequently the police took P.W.3 to the spot where the salwar and

the chappal were recovered. Upon a local search of the area with some

villagers  and  relatives,  the  semi-nude  body  of  the  deceased  was

discovered lying in a supine position in a dry well.  The dead body was

taken out of the well and it was duly identified by her grandfather, P.W.3.  A

spot map of the place of occurrence was drawn, and Seizure Panchnama

of  black  colour  salwar  and  one  Chappal  of  the  deceased  was  also

prepared.

9. P.W.20 (Harsha Singh, Senior Scientific Officer) advised the police

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on handling the body of the deceased and later inspected the decomposing

dead body at 9:45 p.m. at the Government Hospital, Chichli. After noticing

various injuries including ligature marks on the neck, she gave a report that

death  of  the  deceased  was  homicidal.  P.W.12  (Dr.  Kinshu  Jaiswal)

conducted postmortem of the body next morning at 9 a.m. Examining the

decayed state of the body, P.W. 12 estimated time of death 48-72 hours

before. She noted various injuries on the body including a ruptured hymen,

congested trachea and pale lungs. Vaginal slides were prepared and sent

for  inspection.  Hyoid  bone,  femur  bone  and  three  jars  of  the  viscera

(containing pieces of stomach, small intestine, heart, lungs, liver, spleen,

kidney  as  well  as  separate  salt  solution  sample)  were  also  sent  for

examination. Importantly, it was noticed that the skull and vertebrae were

intact. The vaginal slides, salwar and fiber chappal of the deceased were

sent to Forensic Science Laboratory, Sagar (FSL, Sagar) for DNA profiling,

whereas the sealed container(s) with different parts of the deceased’s body

were  sent  to  the  Medico-legal  Institute,  Bhopal  for  chemical  testing.

Subsequently,  the dead body of  the deceased was handed over  to the

family for last rites and statements of some witnesses were recorded under

Section 164 of Cr.P.C. before a Judicial Magistrate.

10. During  the  course  of  investigation,  blood  samples  of  various

suspects were taken for  DNA analysis.  As part  of  the first  batch,  blood

samples of Hargovind Kaurav, Nandi alias Anand Vanshkar and Baba alias

Ashok Kaurav were taken and sent to FSL, Sagar for DNA matching on 14th

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June, 2015. Later on 22nd June, 2015 samples of the appellant (Baba alias

Ravishankar Vishwakarma), Roopram alias Ruppu Kaurav and Manoj alias

Halke Yadav was similarly sent for DNA analysis.  After confirmation by the

FSL stating that only the DNA extracted from the appellant matched with

that on the vaginal slide of the deceased, the appellant was arrested on

20th July, 2015. Charge sheets were filed against him by the investigating

agency on 18th September, 2015.

Trial Court’s Analysis:

11. The  Trial  Court  formulated  various  questions  for  consideration

including determination of the age of the deceased, factum of kidnapping

by  accused,  commission  of  rape,  causing  death  by  throttling  and

destruction of evidence by dumping the dead body by the appellant.   

12. With  a  view  to  bring  home  the  appellant’s  guilt,  the  prosecution

examined as many as 24 witnesses, whereas none were examined by the

appellant in defence. A brief summarisation of the testimonies of important

witnesses and evidences has been made hereunder.

13. P.W.1 (Sukhram Kotwar) who was posted as Gram Kotwar at Baglai,

admitted to accompanying the grand father of the deceased (P.W.3) to the

police station to lodge a missing report of the deceased. He also found

location of the deceased’s body and was a witness to seizure of the slipper,

panchnama and later to the collection of three blood samples and arrest of

the appellant by the police.

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14. P.W.  2  (Shobhabai  —  mother  of  the  deceased)  stated  in  her

deposition that she knew the appellant, for she had borrowed money from

his family in the past.  She claimed to be living in her parental  home in

village  Chargaon,  which  was  separated  by  a  water  channel  from  her

matrimonial village of Baglai, since the past few months for treatment of an

eye injury. She had returned to her in-laws’ house on the morning of 21st

May,  2015 with  the  deceased.  When she reached home,  the  wife  and

daughter  of  the  accused  came  and  asked  her  to  repay  the  borrowed

money.  After some time her daughter (the deceased) told her that she was

going to play with her friend Priyanka at her house. The deceased came

back from her friend’s house and told P.W.2 that she was not feeling good

and requested that she be taken back to her maternal uncle’s house in

Chargaon.  At about 3.00 p.m., the witness found that her daughter was not

there at  their  home.  Her husband enquired from Priyanka’s house but

came to know that deceased was not there.  P.W.2, thereafter, called her

son and sent him to her parental home at Chargaon about 5.00 p.m. Her

son came back home and informed that the deceased was not found in

Chargaon also.  She again sent her son to Chargaon to look out for her

properly.  It was, however, confirmed that the deceased had not gone to

Chargaon and she could not be found anywhere till 6.00 p.m. Thinking that

the deceased might have gone to her parental aunt’s house in Aadegaon,

P.W.2 and her husband slept for the night. The next morning P.W.2 got a

telephonic call  made to Satyaprakash’s sister  in  Aadegaon but failed to

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trace the deceased there as well. A search was made on the motorcycle at

the houses of various relatives and while P.W.2 was returning to Baglai

from her parental home along with her nephew, Dharmendra, she spotted

and identified the salwar and slipper of the deceased which were lying on

the roadside on the embankment  of the water channel separating Baglai

from Chargaon.  P.W.2 then informed her father-in-law, P.W.3, and then the

matter was reported to the Police.  The Police thereafter started looking for

her daughter and then she got to know that the dead body of her daughter

was located inside the well of one Darshan Kaurav.  P.W.2 did not suspect

anyone at that time.  In cross-examination she admitted that she had told

the police that one Abhishek alias Pillu of the village used to offer paan

masala  to  the  deceased  and  that  police  had  also  gone  to  Baba  alias

Ashok’s house for his interrogation and for conducting Narco test but he

fled the next day from the village.  

15. P.W.3 (Purushottam Kaurav) — grandfather of the deceased-victim

has deposed regarding lodging of the missing report with the Police and

also stated that  he identified the dead body of  his  granddaughter  upon

recovery from a dry well.  He too admitted that a person named Baba alias

Ashok  was  called  by  the  Police  but  he  had  fled  and  that  some  more

persons were also interrogated by the Police.

16. P.W.4  (Satyaprakash),  the  father  of  the  deceased,  narrated  the

efforts put in by him and other relatives for the search of his daughter and

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how  during  that  search  the  dead  body  was  found  in  the  dry  well

constructed in the field of Darshan Kaurav.

17. P.W.5 (Sharda) who is well acquainted with the appellant as well as

the  family  of  the  deceased  is  also  a  crucial  prosecution  witness.   He

deposed that on the fateful day at about 3.00 p.m. he, along with his wife

Aalop Bai, was going on a bicycle when both of them spotted the appellant

with the deceased who was wearing a black frock and black pant ‘near the

peepal tree, near the field of Natthu Patel’.  He has further stated that his

statement was recorded by the Police two days after the incident and that

“it is true that the Police had committed assault with me also. It is true that

Police had stated that they would arrest the rascal and they committed an

assault  so I had stated out of nervousness.”  In the very next breath, he,

however, denied that the police had assaulted and were forcing him to give

false testimony before the Court.

18. P.W.6 (Itta alias Kichchu) has stated that about a year prior to the

incident while he had gone to defecate near a reservoir after  disposing of

some  cowdung,  he  had  seen  the  appellant  feeding  biscuits  to  the

deceased at the water channel near the shrubs.  He told this fact to P.W.7

(Nimma Jeeji), who was harvesting sugarcane in the field of one Shatrughn

Patel.   In  his  cross-examination,  he  admitted  that  his  statement  was

recorded one and a half months’ after the incident by the Police.

19. P.W.7 (Nimma Bai) endorsed the statement of P.W.6 to the extent

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that  about  one year before the occurrence, P.W.6 had told her that  the

appellant was feeding biscuits to the deceased.  She has admitted in her

cross-examination  that  she  herself  had  not  seen  the  appellant  feeding

biscuits to the deceased.

20. P.W.10  (Kuldeep  Kaurav,  a  teacher  in  the  Government  Middle

School,  Chargaon) produced school  records to prove that the deceased

was admitted in 6th standard on 16th June, 2014 and as per the date of her

birth she was hardly 13 years old.

21. P.W.13 (Rajesh Kaurav) who was Patwari, testified that he prepared

spot map of the place of incident and that afterwards he took signatures of

people present in the vicinity and dispatched them to the Station House

Officer. In cross-examination, he admitted that details of the well were not

mentioned in the spot map, but volunteered that the well was abandoned

and had shrubs growing  in  it  and the grass/crops growing  outside had

hampered the well’s  visibility  from the Baglai-Chargaon road which was

situated 20 feet away.  

22. P.W.14 (Hargovind  Kaurav)  was  the  cousin  of  the  deceased who

admitted to seeing the deceased’s body in a dry well in a supine position.

He stated that the well was not visible from the road and volunteered that

he was witness to the appellant’s statement(s) before the police and also

witnessed seizure of the second slipper from a nearby water channel later.  

23. P.W.15 (Prakashchand Mehra) is son of the Kotwar of Chargaon and

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testified  that  the  spot  map and panchnama were  prepared before  him,

blood samples of  three suspects (including appellant)  were taken in his

presence and the missing slipper was seized by the police with him. In

cross-examination, however, he admitted that he was not present during

interrogation of the appellant by the police.  

24. P.W.17 (Sanjay Kumar Nagvanshi) was the Tehsildar at Gadarwara

in August, 2015. He stated that he got conducted identification proceedings

to  match  the  slipper  recovered  through  the  appellant  to  ensure  that  it

belonged to the deceased. He testified to procuring similar looking black

slippers from his staff members and mixing them with the slipper received

from the police station. Although both P.W.2 and P.W.3 were called by him,

he  testified  that  only  P.W.2  came  into  his  office  and  identified  the

deceased’s slipper correctly.  

25. P.W.18  (M.D.  Yadav)  was  posted  as  Assistant  Sub-Inspector  at

police station Chichli  and was the police officer who lodged the missing

report on the basis of information given by P.W.3 on the afternoon of 22nd

May, 2015. He also testified to seizing the slipper and salwar presented by

P.W.2.

26. P.W.19 (C.M. Shukla) was posted as S.H.O. who got prepared spot

map  and  was  also  present  during  identification  proceedings  of  the

deceased’s body. Upon being confronted during cross-examination as to

why  the  time  of  disappearance  was  recored  as  10.00  p.m.  in  the

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Roznamcha, he explained that it was a mistake.  

27. P.W.21  (Krishnakant  Kaurav)  was  posted  as  a  Gram  Rozgar

Sahayak  in  Gram  Panchayat  Chargaon  and  testified  to  witnessing

interrogation of the appellant, especially his disclosure of location of the

missing slipper and recovery of the same.  

28. P.W.22 (Niyazul Khan) was the Inspector who got blood sample of

the appellant extracted at the Government Hospital, Chichli and prepared

seizure memo of sealed vials containing blood of the appellant and two

others,  and  forwarded  them  to  FSL  Sagar.  The  Trial  Court  refused

permission to the Defence Counsel to ask questions relating to the FIR,

postmortem  report  and  Roznamcha  holding  that  questions  relating  to

investigation only conducted by the witness could be asked from him.  

29. P.W.23 (D.V.S. Sagar) was posted as Station House Officer at Police

Station  Chichli  and  testified  to  recording  memorandum  statement  of

accused in presence of P.W.15 and P.W.20, on which basis he seized the

missing black fibre slipper of right leg from near the shrubs under a tree

near the spot of incident in Darshan Kaurav’s field.  

30. P.W.24 (Rajkumar Dixit) was the Head Constable who seized sealed

viscera jars and vaginal slides which were produced by Head Constable

Chetram.  He  admitted  to  not  checking  the  sealed  parcels  himself  and

stated that he safely locked them in a locker at the police station.  

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31. Over and above the above-mentioned oral testimonies, we may now

refer to the medico-scientific evidence led by the prosecution to connect

the appellant with the crime.

32. P.W.8 (Dr.  R.R.  Chaudhary),  a Senior  Scientific  Officer from FSL,

Sagar has deposed that  on 4th June,  2015 he examined three exhibits;

Slide marked as Ex. A , Salwar marked as Ex. B and Chappal marked as

Ex.  C which belonged to the deceased.   In  the course of  examination,

human sperms were found on the slide (Ex. ‘A’) of the deceased, however,

only human blood was found on the salwar (Ex. ‘B’). No blood or semen

was found on the slipper (Ex. ‘C’).  The blood group of the blood stained on

the salwar could not be detected as a lot of dirt was stuck on it.  

33. P.W.9  (Dr.  C.S.  Jain)  was  posted  as  Forensic  Expert-Analysis  at

Medico-Legal Institute, Bhopal on 12th June, 2015 when three viscera jars

(Exs. ‘D’, ‘E’ and ‘F’) comprising different parts of the body of deceased

were received with their seals intact. However, when opened these viscera

samples were discovered in a condition unfit for examination as the liquid

had turned stinky and dusty, and the tissues had decayed.  After comparing

the postmortem report, evaluation of time and the sequence of the events

as also the report of the State Forensic Science Laboratory, P.W.9 opined

as follows, which could not be discredited at all in his cross-examination:

“12.   Opinion  :-  After  the  analysis  of  facts  described  in  the documents  which  have  been  examined  on  the  basis  of  my subject knowledge, articles of books and experience gained from the 10984 post mortems conducted by me for continuously more

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than 33 years I am of the opinion that:-

1. The deceased died due to throttling.

2. Sexual  intercourse  was  performed  with  the  deceased before  her  death which  amounted to  rape on considering the age.

3. The deceased was dragged before her death and injuries indicating the struggle were also present.

4. The slides and salwar of the deceased were kept for D.N.A. examination. I did not know their result up to the preparation of the report  otherwise other opinion could also be expressed. It would be appropriate to enclose the said report in the case after obtaining  it  immediately.  If  the  person/s  performing  sexual intercourse with the deceased are known then the D.N.A of their sperms  should  be  matched  with  the  D.N.A.  of  the  sperms present  in  the  vaginal  slides  because if  they  matched then it would be scientifically confirmed that the sexual intercourse was performed by them. In this regard my report is ExP-11 which is in 5 pages. The A to A part on it bears my signature.”

34. P.W.11 (Dr. Pankaj Srivastava)  was posted as Scientific Officer at

the DNA Unit of FSL, Sagar during the period, 24th June, 2015 to 20th July,

2015 and he submitted the DNA test  report  which shows that  the DNA

extracted from the appellant’s blood matched with DNA from the vaginal

smear  slide and salwar  of  the  deceased.  It  has been specifically  been

recorded that bodily fluids of the other five suspects were not found present

in  the  source  vaginal  slide  or  salwar  of  the  victim.   The  witness  was

subjected to an extremely lengthy cross-examination but nothing that could

distract the conclusion he has drawn in the report referred to above. His

opinion is extracted hereunder:

“1….

1. Male D.N.A. profile was found on the source vaginal smear slide and salwar of the deceased …...

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2. The  body  fluids  of  suspect  Hargovind  Kaurav,  suspect Nandi  @ Anand and suspect  Baba @ Ashok were  not  found present in the source vaginal slide and salwar of the deceased …...

3. The body fluids of  suspect  Roopram and suspect  Manoj were not found present in the source vaginal slide and salwar of the deceased ……...

4. The D.N.A. profile matching with that of the suspect Baba @ Ravishankar was found present in the source vaginal  slide and salwar of the deceased ……...

2. The  opinion  given  by  me  in  regard  to  the  suspect Hargovind Kaurav, Nandi @ Anand Kaurav and Baba @ Ashok is ExP-15 which is in 3 pages and the A to A part on it bears my signature.  The  opinion  given  by  me in  regard  to  the  suspect Baba @ Ravishankar, Roopram @ Ruppu Kaurav and Manoj @ Halke Yadav is ExP-16 which is in 2 pages and the A to A part on it bears my signature.”

35. P.W.12 (Dr. Kinshuk Jaiswal), who was posted as Medical Officer at

Government Hospital Chichli on 23rd May, 2015, at at 9.00 a.m. conducted

postmortem on the dead body of the deceased.  She has stated that the

putrefaction of the body had started and foul smelling odour was present.

She  estimated  time  of  death  at  48-72  hours  before  or  possibly  earlier

depending upon environmental conditions. She also found chara (fodder)

inside the hair of the deceased and deposed that two vaginal slides of the

deceased were sent for examination. What she noticed in the postmortem

examination was as follows:

“Abrasions present in the whole left portion of the body of the deceased.  Extending  from  lateral  aspect  of  left  arm  to  left forearm 15 cm x 3.5 cm irregular in shape. Left thigh lateral 8 cm x 3 cm. Left leg (lateral) 7.5 cm x 2.5 cm irregular shape. Left buttock  15  cm  x  4.5  cm  irregular.  Neck  swollen.  Contusions present  on  anterior  aspect  of  neck  both  sides.  Contusions

16

present  over  right  axillary  area  5  cm  x  2.5  cm  over  left supraclavicular area (6 cm x 2 cm), left arm (5 cm x 2.5 cm), left scapular area (8 cm x 2.5 cm). Contusion present over right thigh medical  aspect  (10  cm x  2.5  cm).  Perineal  area swollen  and edematous.  Pubic  hair  absent.  Hymen  ruptured.  Two  vaginal slides prepared and send + for biochemical examination. Feaces passed. Contusion present over left foot (dorsally) 3.5 cm x 1.5 cm and contusion present over right palm (palmar aspect) of size 2 cm x 1.5 cm.                                                              ….(sic.)”

36. P.W.16  (Dr.  Kshipra  Kaurav)  was  posted  as  Medical  Officer  at

Government Hospital, Chichli on 8th July, 2015 when she was asked to take

the blood sample of the appellant which she kept in a vial, sealed it and

handed it over to the SHO who prepared the seizure memorandum Ex. P-

5. She has volunteered in her cross-examination that the blood samples of

two more persons were also taken prior to that  of  the appellant on the

same day and that photographs of all the persons whose blood samples

were  taken  were  duly  attested.   She  further  volunteered  that  the

identification Form Ex. P-9 along with photographs of the appellant were

also attested by her.

37. Essentially,  this  is  a  case  of  circumstantial  evidence  which  is

supported by occular and medico-scientific evidence.  The prosecution has

effectively proved that deceased was `last seen’ with the appellant and on

earlier  occasions  too  was  seen  being  enticed  by  the  appellant.   DNA

evidence using the established STR technique has proved that appellant

committed  sexual  intercourse  with  the  deceased.   Deceased  has  been

proven to be a minor using school records. Various injuries on her body

17

along with signs of struggle proved that such crime was committed in a

barbaric  manner.   Death  has  been established as  being  homicidal  and

caused by throttling,  and has been estimated during the time when the

deceased was seen with the appellant.   A slipper have been recovered

through the appellant which has later been identified as belonging to the

deceased,  giving  finality  to  the  circumstantial  chain.  The  appellant  has

been unable to offer any alibi and his defence merely rests on deflecting

guilt on to the family of the deceased, which is without a shred of evidence.

Further, no effective challenge has been made against any medical or DNA

reports.   There can thus be no second opinion against  the guilt  of  the

appellant and his consequential conviction.

38. The findings of kidnapping, rape, resultant death and destruction of

evidence have hence been proven beyond reasonable doubt, as evidenced

by  concurrent  findings  of  the  Courts  below.   Even  this  Court  on  10th

January,  2018 has confirmed the conviction of  the appellant  keeping in

view the fact  that  DNA typing carries  high probative value for  scientific

evidence,  is  often  more  reliable  than  ocular  evidence.  It  goes  without

saying  that  in  (i)  Pantangi  Balarama  Venkata  Ganesh  vs.  State  of

Andhra  Pradesh2 and  (ii)   Dharam  Deo  Yadav vs.  State  of  Uttar

Pradesh3,  this  Court  has unequivocally  held  that  DNA test,  even if  not

infallible, is nearly an accurate scientific evidence which can be a strong

2(2009) 14 SCC 607 3(2014) 5 SCC 509

18

foundation for the findings in a criminal case.   

Sentencing :

39. The  core  issue  that  we  are  left  with  to  decide  is  the  nature  of

punishment to be awarded to the appellant.  The Trial Court awarded death

sentence  after  drawing  a  balance-sheet  weighing  `mitigating’

circumstances against  `aggravating’ circumstances. It noted that lack of

criminal antecedents and a large number of dependants were outweighed

by  appellant’s  mature  (40-50)  age,  heinousness  of  offence,  adverse

reaction  of  society,  pre-planned  manner  of  crime,  injuries  on  body  of

deceased and lack of regret during trial. The High Court noted that there

was bleeding due to sexual intercourse and that there was no possibility of

reform owing to the appellant’s denial of his crimes.  Accordingly, it held

that awarding death penalty was justified.

40. The  question  as  to  why  and  in  what  circumstances  should  the

extreme sentence of death be awarded has been pondered upon by this

Court  since many a decades.   The Constitution Bench of  this  Court  in

Bachan  Singh  vs.  State  of  Punjab4  evolved  the  principle  of  life

imprisonment as the ‘rule’ and death penalty as an ‘exception’.  It further

mandated consideration of the probability of reform or rehabilitation of the

criminal. It, thus, formed the genesis of the ‘rarest of the rare’ doctrine for

awarding the sentence of death.

4 (1980) 2 SCC 684

19

41. This was further developed in Machhi Singh and others vs. State

of Punjab5 where this Court held that as part of the `rarest of rare’ test, the

Court should address itself as to whether; (i) there is something uncommon

about  the  crime  which  renders  sentence  of  imprisonment  for  life

inadequate and calls for a death sentence; (ii) the circumstances are such

that  there  is  no  alternative  but  to  impose  death  sentence  even  after

according  maximum  weightage  to  the  mitigating  circumstances  which

speak in favour of the offender. Further, this Court ruled that :

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

42. There have been an umpteen number of judgments where this Court

has steadily restricted the circumstances for award of death penalty and

has increased the burden of  showing special reasons before mandating

death penalty, as mandated under Section 354(3) of the Cr.P.C.

5 (1983) 3 SCC 470

20

43. This  exercise  of  drawing  a  balance  sheet  of  aggravating  and

mitigating circumstances whilst keeping in mind the peculiarity of facts and

circumstances of each case has nevertheless been very tedious.  It has

resulted  in  a  lack  of  unanimity  of  standard  amongst  different  Benches

resulting in differential standards for award of capital punishment.

44. Many  protagonists  of  abolishment  of  death  penalty  have  been

passionately urging this Court to not award death in cases of circumstantial

proof  claiming  an  inherent  weakness  in  cases  without  ocular  evidence.

They highlight an ever-remaining possibility of reform and rehabilitation and

ask  this  Court  to  be  cognizant  of  social,  economic  and  educational

conditions of the accused.   

45. Simultaneously,  however,  a  parallel  line  of  thought  has  strongly

advocated that death be imposed to maintain proportionality of sentencing

and to  further  the  therories  of  deterence effect  and societal  retribution.

These people contend that sentencing should be society-centric instead of

being judge-centric and make use of a cost-benefit analysis to contend that

the miniscule possibility of putting to death an innocent man is more than

justified in the face of the alternative of endangering the life of many more

by setting a convict  free after spending 14-20 years in imprisonment. This

possibility,  they  further  state,  is  already  well  safeguarded  against  by  a

`beyond reasonable doubt’ standard at the stage of conviction.  

46. Ostensibly to tackle such a conundrum between awarding death or

21

mere 14-20 years of imprisonment, in  Swamy Shraddananda @ Murali

Manohar Mishra Vs. State of Karnataka6,  a three-Judge Bench of this

Court  evolved a hybrid special  category of  sentence and ruled that  the

Court  could  commute  the  death  sentence  and  substitue  it  with  life

imprisonment with the direction that the convict would not be released from

prison for the rest of his life.  After acknowledging that “the truth of the

matter is that the question of death penalty is not free from the subjective

element and the confirmation of death sentence or its commutation by this

Court  depends a good deal  on the personal  predilection of  the Judges

constituting the Bench”, this Court went on to hold as follows:

“92. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive  and  unduly  harsh  or  it  may  be  highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed  by  the  High  Court,  this  Court  may  find,  as  in  the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death  sentence.  But  at  the  same time,  having  regard  to  the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term  of  14  years  would  be  grossly  disproportionate  and inadequate. What then should the Court do? If the Court's option is  limited  only  to  two  punishments,  one  a  sentence  of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself  nudged into endorsing the death penalty. Such a course would  indeed be disastrous.  A far  more just,  reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death. It needs to  be emphasised that  the  Court  would  take recourse to  the expanded option primarily because in the facts of the case, the sentence  of  14  years'  imprisonment  would  amount  to  no punishment at all.

6 (2008) 13 SCC 767

22

93. Further, the formalisation of a special category of sentence, though for an extremely few number of  cases, shall  have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898] besides being in accord with the modern trends in penology.

94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.”

47. The special  sentencing theory  evolved in  Swamy Shraddananda

(supra) has got the seal of approval of the Constitution Bench of this Court

in Union of India vs. Sriharan alias Murugan and others7,  laying down

as follows:

“105. We, therefore,  reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.

106. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] that a special  category  of  sentence;  instead  of  death;  for  a  term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet v. State of Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611]

7 (2016) 7 SCC 1

23

that  the  deprival  of  remission  power  of  the  appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same.”

48. Regardless of the suggestive middle path this Court has, when the

occasion  demanded,  confirmed  death  sentences  in  many  horrenduous,

barberic and superlative crimes especially which involve kidnapping, rape

and cold blooded murder of tender age children.

49. In  Mukesh and another  vs.  State  (NCT of  Delhi)  and others8,

faced with an instance of gang rape and brutal murder, this Court found

that aggravating   circumstances  like  diabolic  nature  of  the  crime,

brazenness and coldness with which such acts were committed and the

inhuman extent to which the accused could go to satisfy their lust, would

outweigh mitigating circumstances.

50. In Vasanta Sampat Dupare vs. State of Maharashtra9, a little child

was raped and brutally murdered. The death penalty was confirmed by this

Court. Thereafter, a review petition was heard in open court and the death

penalty  was  reconfirmed  regardless  of  the  convict  having  completed  a

bachelors preparatory programme, having kept an unblemished jail record

and acquiring some other reformative qualifications during the course of

trial. This Court was of the view that the extreme depravity and barberic

manner in which the crime was committed and the fact that the victim was

8 (2017) 6 SCC 1 9 (2017) 6 SCC 631

24

a helpless child of 4 years clearly outweighed the mitigating circumstances

in that case.

51. In  Khushwinder Singh vs. State of Punjab10,  this Court affirmed

the death sentence of the accused who had killed six innocent persons

including two minors by kidnapping, drugging them with sleeping pills and

then pushing them into a canal.

52. In  Manoharan Vs. Inspector of Police11,  a three-Judge Bench (by

majority) affirmed the death sentence of the accused who along with his

co-accused was found guilty of gangraping a 10 years’ old minor girl and

committing  her  brutal  murder  along  with  her  7  years’  old  brother  by

throwing them into a canal and causing their death by drowning.

53. Equally,  there  are  several  other  instances  including  the  recent

instance  in Rajindra  Pralhadrao  Wasnik  v.  State  of  Maharashtra  in

Review  Petition(Crl.)  Nos.  306-307/2013  where  this  Court  commuted

death sentence even in the case of rape and murder of tender age children

like 3-4 year olds after taking notice of the peculiar facts and circumstances

of that case as well as the factor that the convictions were founded upon

circumstancial evidence and though DNA Test was held but its report was

withheld and not produced by the prosecution for the reasons best known

to it.

10 (2019) 4 SCC 415 11(2019) SCConline SC 951

25

54. On a detailed  examination of  precedents,  it  appears  to  us  that  it

would be totally imprudent to lay down an absolute principle of law that no

death sentence can be awarded in a case where conviction is based on

circumstantial  evidence.   Such  a  standard  would  be  ripe  for  abuse  by

seasoned  criminals  who  always  make  sure  to  destroy  direct  evidence.

Further in many cases of rape and murder of children, the victims owing to

their tender age can put up no resistence. In such cases it is extremely

likely that there would be no ocular evidence.  It cannot, therefore, be said

that in every such case nothwthstanding that the prosecution has proved

the  case  beyond  reasonable  doubt,  the  Court  must  not  award  capital

punishment  for  the  mere  reason  that  the  offender  has  not  been  seen

committing  the  crime  by  an  eye-witness.  Such  a  reasoning,  if  applied

uniformally and mechanically will have devastating effects on the society

which is a dominant stakeholder in the administration of our criminal justice

system.

55. Further, another nascent evolution in the theory of death sentencing

can be distilled.  This Court has increasingly become cognizant of `residual

doubt’ in many recent cases which effectively create a higher standard of

proof over and above the `beyond reasonable doubt’ standard used at the

stage  of  conviction,  as  a  safeguard  against  routine  capital  sentencing,

keeping in mind the irreversibility of death.

56. In  Rameshbhai Chandubhai Rathod vs.  State of  Gujarat,12 this

12 (2011) 2 SCC 764

26

Court  noted  that  reliance  on  merely  ‘plausible’  evidences  to  prove  a

circumstantial chain and award death penalty would be “in defiance of any

reasoning which brings a case within the category of the “rarest of rare

cases”.” Further,  various  discrepancies  in  other  important  links  in  the

circumstantial chain as well as lack of any cogent reason by the High Court

for not accepting the retraction of the confession statement of the accused

was noted. Acting upon such various gaps in the prosecution evidence as

well as in light of other mitigating circumstances, like the possibility that

there were others involved in the crime, this Court refused to confirm the

sentence of death despite upholding conviction.

57. Such imposition of a higher standard of proof for purposes of death

sentencing  over  and  above  ‘beyond  reasonable  doubt’  necessary  for

criminal conviction is similar to the “residual doubt” metric adopted by this

Court in  Ashok Debbarma vs. State of Tripura13 wherein it was noted

that:

“in  our  criminal  justice  system,  for  recording  guilt  of  the accused, it is not necessary that the prosecution should prove the  case  with  absolute  or  mathematical  certainty,  but  only beyond  reasonable  doubt.  Criminal  Courts,  while  examining whether any doubt is beyond reasonable doubt, may carry in their mind, some "residual doubt", even though the Courts are convinced  of  the  accused  persons'  guilt  beyond  reasonable doubt.”  

58. Ashok Debbarma (supra) drew a distinction between a ‘residual

doubt’,  which is any remaining or lingering doubt about the defendant’s

13 (2014) 4 SCC 747

27

guilt which might remain at the sentencing stage despite satisfaction of the

‘beyond a reasonable doubt’ standard during conviction, and reasonable

doubts which as defined in Krishan v. State14 are “actual and substantive,

and  not  merely  imaginary,  trivial  or  merely  possible”.  These  ‘residual

doubts’ although not relevant for conviction, would tilt  towards mitigating

circumstance to be taken note of whilst considering whether the case falls

under the ‘rarest of rare’ category.

59.  This  theory  is  also  recognised in  other  jurisdictions  like  the  United

States, where some state courts like the Supreme Court of Tennessey in

State vs. McKinney15 have explained that residual doubt of guilt is a valid

non-statutory  mitigating  circumstance  during  the  sentencing  stage  and

have allowed for new evidence during sentencing proceedings related to

defendant’s character, background history, physical condition etc.   

60. The  above  cited  principles  have  been  minutely  observed  by  us,

taking into consideration the peculiar facts and circumstances of the case

in  hand.  At  the  outset,  we  would  highlight  that  the  High  Court  while

confirming death has observed that  the girl  was found bleeding due to

forcible  sexual  intercourse — which fact,  however,  is not supported by

medical  evidence.  However,  such  erroneous  finding  has  no  impact  on

conviction under Section 376A of the I.P.C. for a bare perusal of the section

shows that only the factum of death of the victim during the offence of rape

14  (2003) 7 SCC 56 15 74 S.W.3d 291 (Tenn. 2002)

28

is required, and such death need not be with any guilty intention or be a

natural consequence of the act of rape only. It is worded broadly enough to

include  death   by  any  act  committed  by  the  accused   if  done

contemporaneously with the crime of rape. Any other interpretation would

defeat the object of ensuring safety of women and would perpetuate the

earlier loophole of the rapists claiming lack of intention to cause death to

seek a reduced charge under Section 304 of I.P.C. as noted in the Report

of the Committee on Amendments to Criminal Law, headed by Justice

J.S. Verma, former Chief Justice of India:

“22. While we believe that enhanced penalties in a substantial number of sexual assault cases can be adjudged on the basis of the  law  laid  down  in  the  aforesaid  cases,  certain  situations warrant a specific treatment. We believe that where the offence of sexual assault, particularly ‘gang rapes’, is accompanied by such brutality and violence that it leads to death or a Persistent Vegetative State (or ‘PVS’ in medical terminology), punishment must  be  severe  –  with  the  minimum  punishment  being  life imprisonment.  While  we  appreciate  the  argument  that  where such offences result in death, the case may also be tried under Section 302 of the IPC as a ‘rarest of the rare’ case, we must acknowledge that many such cases may actually fall within the ambit  of  Section 304 (Part  II)  since the ‘intention to kill’ may often  not  be  established.  In  the  case of  violence resulting  in Persistent Vegetative State is concerned, we are reminded of the moving story of Aruna Shanbagh, the young nurse who was brutally raped and lived the rest of her life (i.e. almost 36 years) in a Persistent Vegetative State.

23.  In  our opinion, such situations must be treated differently because the concerted effort to rape and to inflict violence may disclose an intention deserving an enhanced punishment.  We have therefore recommended that a specific provision, namely, Section 376 (3) should be inserted in the Indian Penal Code to deal with the offence of “rape followed by death or resulting in a Persistent Vegetative State”.”

61.   In the present case, there are some residual doubts in our mind.  A

29

crucial  witness  for  constructing  the  last  seen  theory,  P.W.5  is  partly

inconsistent in cross-examination and quickly jumps from one statement to

the other.  Two other witnesses, P.W.6 and P.W.7 had seen the appellant

feeding biscuits to the deceased one year before the incident and their long

delay in reporting the same fails to inspire confidence.  The mother of the

deceased has deposed that the wife and daughter of the appellant came to

her house and demanded the return of the money which she had borrowed

from  them  but  failed  to  mention  that  she  suspected  the  appellant  of

commiting  the  crime  initially.  Ligature  marks  on  the  neck  evidencing

throttling were noted by P.W.20 and P.W.12 and in the postmortem report,

but  find no mention  in  the  panchnama prepared by the  police.  Viscera

samples  sent  for  chemical  testing  were  spoilt  and  hence  remained

unexamined. Although nails’ scrappings of the accused were collected, no

report has been produced to show that DNA of the deceased was present.

Another  initial  suspect,  Baba  alias  Ashok  Kaurav  absconded  during

investigation, hence, gave rise to the possibility of involvment of more than

one person.  All these factors of course have no impact in formation of the

chain of evidence and are wholly insufficient to create  reasonable doubt to

earn acquittal.

62.  We are cognizant of the fact that use of such ‘residual doubt’ as a

mitigating factor would effectively raise the standard of proof for imposing

the death sentence, the benefit of which would be availed of not by the

innocent only. However, it would be a misconception to make a cost-benefit

30

comparison between cost to society owing to acquittal of one guilty versus

loss of life of a perceived innocent. This is because the alternative to death

does not necessarily imply setting the convict free.  

63. As  noted  by  the  United  States  Supreme  Court  in  Herrera  v.

Collins,16 “it is an unalterable fact that our judicial system, like the human

beings  who  administer  it,  is  fallible.”  However,  death  being  irrevocable,

there lies a greater degree of responsibility on the Court  for an indepth

scruitiny  of  the  entire  material  on  record.  Still  further,  qualitatively,  the

penalty imposed by awarding death is much different than in incarceration,

both for the convict and for the state. Hence, a corresponding distinction in

requisite  standards  of  proof  by  taking  note  of  ‘residual  doubt’  during

sentencing would not be unwarranted.  

64.  We are thus of the considered view that the present case falls short

of the ‘rarest of rare’ cases where the death sentence alone deserves to be

awarded to the appellant.  It appears to us in the light of all the cumulative

circumstances  that  the  cause  of  justice  will  be  effectively  served  by

invoking the concept of special sentencing theory as evolved by this Court

in  Swamy  Shraddananda  (supra)  and  approved  in  Sriharan  case

(supra).

65.For the reasons aforesaid, the appeals are allowed in part to the extent

that the death penalty as awarded by the courts below is set aside and is

16 506 U.S. 390 (1993)

31

substituted with the imprisonment for life with a direction that no remission

shall be granted to the appellant and he shall remain in prison for the rest

of his life.

………………………………..J.

(ROHINTON FALI NARIMAN)

….……………………..J.

(R. SUBHASH REDDY)

…………………………… J.

(SURYA KANT)

NEW DELHI

DATED : 03.10.2019

32