Page 1

Crl.A. Nos. 292-293 of 2014

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 292-293 OF 2014

Tattu Lodhi @ Pancham Lodhi        …..Appellant   

Versus

State of Madhya Pradesh        …..Respondent

J U D G M E N T

SHIVA KIRTI SINGH, J.

1.  The appellant, charge-sheeted for offences under Section 366(A),

363, 364, 376(2)(f)/511 and 201 of the Indian Penal Code (for brevity

‘IPC’) was tried by the Twelfth Additional Sessions Judge, Jabalpur in

Sessions Trial No. 324 of 2011. He was found guilty of committing the

murder of a minor girl, aged about seven years and also of kidnapping

and  attempt  to  commit  rape  on  her  and  for  destruction  of  evidence

relating to the crime. The trial court awarded punishment of death under

Section  302  IPC,  RI  for  life  and  a  fine  of  Rs.1,000/-  with  default

stipulation for offence under Section 364 IPC, RI for seven years with

similar fine for  offence under Section 363 IPC, RI for seven years with

similar fine for  offence under Section 376(2)(f)/511 IPC and RI for seven

years  with  similar  fine  for  offence  under  Section  201  IPC.  All  the

1

Page 2

Crl.A. Nos. 292-293 of 2014

punishments of imprisonment were directed to run concurrently. By the

impugned judgment the High Court of Madhya Pradesh agreed with the

findings  of  the  trial  court  and  answered  the  criminal  reference  in

affirmative,  confirming the death sentence and dismissed the criminal

appeal preferred by the appellant.  

2.     Learned senior advocate for the appellant, Ms. Meenakshi Arora

initially  made an attempt to challenge the conviction of  the appellant

itself  by  pointing out  absence  of  any eye-witness of  the  incident  and

dependence of  the entire  prosecution case on circumstantial  evidence

alone.  Learned  counsel  for  the  State  countered  the  challenge  to

conviction  by  submitting  that  in  law  there  is  no  hurdle  in  securing

conviction purely on circumstantial  evidence. On facts, he highlighted

that the trial court considered the entire evidence on record fairly and in

detail  and  found  the  following  five  circumstances  proved  against  the

accused:

(i) The accused asked the victim soon before the incident to

purchase  and  bring  “Gutka”  for  him  and  after  sometime  she

became untraceable.

(ii) Victim was last seen alive with the accused

(iii)The accused avoided to hand over the keys of his house for the

search of victim. (iv) Recovery and seizure of victim’s dead body in a gunny bag

from the house of the accused.

2

Page 3

Crl.A. Nos. 292-293 of 2014

(v) Seizure of blood-stained clothes including bed sheet from the

house of accused pursuant to his memorandum statement.

3. In view of submission advanced on behalf of the appellant that the

chain of evidence to prove his guilt beyond reasonable doubt was not

complete,  we  have  examined  the  relevant  evidence  and  also  the

discussion thereof made by the trial court in detail from paragraphs 15

to  32  of  its  judgment  and similar  exercise  by  the  High  Court.  On a

careful  consideration  of  the  evidence  of  shopkeeker  Anil  Kumar  Jain

(PW-7) from where the victim bought “Gutka” for the accused and the

evidence  of  complainant  Gappu  @  Kshirsagar,  Hemraj,  Ram  Kumar,

Sitaram, Maharaj Singh along with medical evidence, seizure report and

report from the forensic science laboratory confirming the presence of

human blood on the gunny bag,  bed-sheet and bed-cover which were

seized from the house of accused, we find no good reason to interfere

with the findings of the trial court duly confirmed by the High Court that

the appellant-accused kidnapped the victim and after subjecting her to

sexual abuse, throttled her to death. The first submission on behalf of

the appellant that the chain of circumstantial evidence is not complete

and does  not  prove  the  guilt  of  accused  is  found to  be  without  any

substance. We have no hesitation in confirming the conviction.

4. Since there was no appeal before the High Court from the side of

the State or the complainant nor there is any such appeal in this Court,

We have confirmed the conviction as made by the trial court but we have

3

Page 4

Crl.A. Nos. 292-293 of 2014

no hesitation in indicating our disapproval of the error committed by the

trial  court in convicting the accused only for the attempted rape. The

post-mortem  report,  besides  showing  injuries  on  the  neck  and  face

showed several bruise marks on the left and right side of the abdomen as

well as an injury on the left side of the vagina. The internal examination

clearly records thus: “……………….. in the reproductive organ the hymen

membrane was ruptured. Mild bleeding and inflammation were found.

Vagina was congested and one finger could be inserted. White discharge

was coming out of vagina.” In view of aforesaid findings recorded in the

post-mortem report of the seven year old victim duly proved by Dr. Khare

(PW-9), there was no justification not to hold the accused guilty of rape

simply because PW-9 in his oral deposition made a casual statement that

there was attempt to commit rape on the deceased before her death. It

may only  be noticed that  the Doctor confirmed that  the death of  the

deceased  was  caused  by  asphyxia  from  choking  out  the  throat  by

strangulation  of  the  neck  and  all  the  injuries  were  ante  mortem  in

nature. It may also be noted here that the post-mortem report (Ex. P-13)

was prepared and signed not only by Dr. Rakesh Khare (PW-9) but also

by his colleague Dr. Ashish Raj who had also participated in the autopsy

of the deceased.

5. Be that as it may, we have now to consider the next plea advanced

on behalf of the appellant that the facts of the case do not make the

crime to be “rarest of rare” and hence in such a case the Courts below

4

Page 5

Crl.A. Nos. 292-293 of 2014

should not have awarded the death sentence. In support of the aforesaid

plea, learned senior counsel has submitted that at the time of occurrence

accused  was  aged  only  about  twenty  seven  years  and  there  was  no

material to negate the chance of accused being reformed on account of

sentence of imprisonment and gaining further maturity. On the basis of

injuries  which  can  be  associated  with  rape,  learned  senior  counsel

submitted that no doubt it was a heinous offence as the victim was only

seven years  old  but  there  were  neither  any  broken bones  nor  brutal

tearing  etc.  to  make  out  a  case  of  extreme  brutality.  Learned  senior

counsel  referred to the statement of the accused recorded under Section

313 of the Code of Criminal Procedure to point out that since sometime

back the accused was living alone as his wife had deserted him and he

also  admitted  that  there  was  only  one  case  under  Section  354  IPC

pending  against  him.  Reference  was  also  made  to  memorandum

statement of  the accused recorded by the police  in presence of  some

witnesses to show that  as per such statement the accused killed the

deceased because of loud cries by her. According to learned counsel the

murder was in a state of panic and not a premeditated act and therefore,

the appellant deserves a lenient punishment, anything other than death.

6. Ms.  Arora,  learned senior  counsel  for  the  appellant  placed

reliance upon judgment in the case of Swamy Shraddananda(2) v.

State  of  Karnataka1 to  underscore  that  although  Swamy

1  (2008) 13 SCC 767

5

Page 6

Crl.A. Nos. 292-293 of 2014

Shraddananda’s conviction under Sections 302 and 201 of the IPC

was  affirmed  with  a  finding  that  the  crime  was  a  cold  blooded

murder yet this Court was not convinced to confirm the sentence of

death even after discussing the diabolical crime in which a wealthy

married  woman  fell  in  trap,  divorced  her  husband  married  the

accused and suffered death at his hands only for lust of her huge

property.  The dead body was found buried under the floor of her

residential house, obviously to conceal the ghastly crime.  In such a

crime, while mulling over the vexed issue of adequate sentence in

lieu  of  death  sentence,  this  Court  held  that  the  Court  had  the

power  to  substitute  death  by  imprisonment  for  life  and  also  to

direct that the convict would not be released from prison for the

rest  of  his  life.   A  Constitution  Bench judgment  in  the  case  of

Union of India v.  V. Sriharan alias Murugan & Ors.2 has also

been  cited  to  show  that  judgment  in  the  case  of  Swamy

Shraddananda (2) (supra)  has  been  approved  and  followed.   In

paragraphs 89 and 90 of this judgment it was explained that life

imprisonment means the whole life span of the person convicted

and therefore  in  the  facts  of  a  case  while  not  confirming death

penalty, this Court may, while exercising its power to impose the

2  (2016) 7 SCC 1

6

Page 7

Crl.A. Nos. 292-293 of 2014

punishment of life imprisonment, specify the period upto which the

sentence of life must remain intact so as to be proportionate to the

nature of the crime committed.

7. The  submissions  advanced  on  behalf  of  the  State  will  be

considered hereinafter, but keeping in mind all the submissions, it

is clear that there is no opposition to the contention advanced by

learned senior counsel  for the appellant on the basis of  Swamy

Shraddananda(2) (supra) and the Constitution Bench Judgment in

Sriharan (supra).  In that view of the matter and even otherwise we

are  in  respectful  agreement  with  the  views  expressed  in  those

judgments.   The judicial  innovation of  bridging the gap between

death sentence on the one extreme and only 14 years of  actual

imprisonment in the name of life imprisonment on the other, in our

view serves a laudable purpose as explained in those judgments

and does not  violate  any positive  mandate  of  law in the Indian

Penal Code or in the Code of Criminal Procedure.   Hence, for doing

complete justice in any case, this court can definitely follow the law

laid down in the aforesaid judgments even by virtue of Article 142

of the Constitution of India.  The innovative approach reflected in

the  aforesaid  judgments,  on  the  one  hand  helps  the  convict  in

getting rid of death penalty in appropriate cases, on the other it

7

Page 8

Crl.A. Nos. 292-293 of 2014

takes care of genuine concerns of the victim including the society

by  ensuring  that  life  imprisonment  shall  actually  mean

imprisonment for whole of the natural life or to a lesser extent as

indicated by the court  in  the light  of  facts  of  a  particular  case.

Since there is no party who is actually a looser on account of such

an  approach  in  appropriate  cases,  we  feel  no  hesitation  in

accepting the submissions advanced by the appellant.  Hence the

law  is  reiterated  that  in  appropriate  cases  where  this  court  is

hesitant  in  maintaining  death  sentence,  it  may  order  that  the

convict shall undergo imprisonment for whole of natural life or to a

lesser extent as may be specified.

8. Learned counsel for the State has made a strong attempt to

support the death sentence.  According to him the judgments in the

case  of  Rajendra Pralhadrao Wasnik v.  State  of  Maharashtra3

and Shankar Kisanrao Khade v. State of Maharashtra4 catalogue

the relevant factors which should be looked for and examined for

awarding  or  confirming  death  sentence.   He  highlighted  factors

such  as  brutality,  helplessness  of  the  victim,  unprovoked  and

pre-meditated  attack as  well  as  societal  concern in respect  of  a

3  (2012) 4 SCC 37

4  (2013) 5 SCC 546

8

Page 9

Crl.A. Nos. 292-293 of 2014

particular brutal or heinous crime.  According to him the facts of

the case showed brutality,  helplessness of  the victim as well  as

unprovoked and pre-meditated design to assault.  Learned counsel

for the State also referred to some other cases where death penalty

had been confirmed by this Court on the basis of peculiar facts of

those cases.   Since there  are  large  number  of  judgments  either

confirming  death  sentence  or  commuting  the  same  into  life

imprisonment,  rendered  on  the  basis  of  peculiar  facts  of  those

cases, it would not be of any real help to consider those judgments

for deciding the issue as to whether in the facts of the present case

death sentence should be confirmed or commuted.

9. Having considered the rival submissions as well as judgments

relied upon, we are of the considered view that the facts of this case

do not make out a “rarest of rare” case so as to confirm the death

sentence  of  the  appellant.   The  death  penalty  is  therefore  not

confirmed.   The  question  as  to  what  would  be  the  appropriate

period  out  of  imprisonment  for  the  whole  natural  life  that  the

appellant must spend in prison is not an easy one to be answered.

As per submissions of learned counsel for the appellant in total an

actual period of 20 years behind the bars would serve the ends of

9

Page 10

Crl.A. Nos. 292-293 of 2014

justice  in  the  present  case.  Contra,  learned  State  counsel  has

argued for whole of natural life.

10. The occurrence is of the year 2011 when the appellant was

said  to  be  about  27  years  old.   Considering  the  fact  that  the

deceased,  a helpless child  fell  victim of  the crime of  lust  at  the

hands of the appellant and there may be probabilities of such crime

being repeated in case the appellant is allowed to come out of the

prison on completing usual period of imprisonment for life which is

taken to be 14 years for certain purposes, we are of the view that

the appellant should be inflicted with imprisonment for life with a

further direction that he shall not be released from prison till he

completes actual period of  25 years of  imprisonment.  With this

modification  in  the  sentence,  the  appeals  of  the  appellant  are

dismissed.

     …………………………………….J.       [J. CHELAMESWAR]

      ……………………………………..J.                  [SHIVA KIRTI SINGH]

      ……………………………………..J.                  [ABHAY MANOHAR SAPRE]

New Delhi. September 16, 2016.

10