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Tuesday, February 5, 2013

KIDNAP AND MURDER OF A CHILD FOR RANSOM - A perusal of the aforesaid determination would reveal, that having proved the factum of kidnapping, the inference of the consequential murder of the kidnapped person, is liable to be presumed. We are one with the aforesaid conclusion. The logic for the aforesaid inference is simple. Once the person concerned has been shown as having been kidnapped, the onus would shift on the kidnapper to establish how and when the kidnapped individual came to be released from his custody. In the absence of any such proof produced by the kidnapper, it would be natural to infer/presume, that the kidnapped person continued in the kidnapper’s custody, till he was eliminated. The instant conclusion would also emerge from Section 106 of the Indian Evidence Act, 1872 which is being extracted hereunder : “106 - Burden of proving fact especially within knowledge—.When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.” - The choice of kidnapping the particular child for ransom, was well planned and consciously motivated. The parents of the deceased had four children – three daughters and one son. Kidnapping the only male child was to induce maximum fear in the mind of his parents. Purposefully killing the sole male child, has grave repercussions for the parents of the deceased. Agony for parents for the loss of their only male child, who would have carried further the family lineage, and is expected to see them through their old age, is unfathomable. Extreme misery caused to the aggrieved party, certainly adds to the aggravating circumstances. 31. As against the aforesaid aggravating circumstances, learned counsel for the accused-appellant could not point to us even a single mitigating circumstance. Thus viewed, even on the parameters laid down by this Court, in the decisions relied upon by the learned counsel for the accused- appellant, we have no choice, but to affirm the death penalty imposed upon the accused-appellant by the High Court. In fact, we have to record the aforesaid conclusion in view of the judgment rendered by this Court in Vikram Singh & Ors. Vs. State of Punjab, (2010) 3 SCC 56, wherein in the like circumstances (certainly, the circumstances herein are much graver than the ones in the said case), this Court had upheld the death penalty awarded by the High Court.


                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                         ORIGINAL WRIT JURISDICTION

                     CRIMINAL APPEAL NOS.300-301 OF 2011


Sunder @ Sundararajan                              …. Apellant

                                   Versus

State   by   Inspector   of   Police.                                  ….
Respondent




                               J U D G M E N T


JAGDISH SINGH KHEHAR, J.


1.     On  27.7.2007  Suresh  aged  7  years,  who  lived  with  his  mother
Maheshwari (PW1)  at  Karkudal  village  in  Vridhachalam  Taluk,  left  his
residence in the morning as usual, at about 8 a.m. to attend his  school  at
Vridhachalam.
Suresh was a class II student at Sakthi Matriculation  School
at Vridhachalam.  Each morning, he along with other students from  the  same
village, would leave for school, in a school van at  about  8.00  a.m.   The
same school van would bring them back in the afternoon at  about  4.30  p.m.

On 27.7.2009, Suresh did not return home.  Maheshwari (PW1) his  mother  got
worried and made inquiries.   She  inquired  from  Kamali  (PW2),  and  from
another student from the same village, who used to travel to school  in  the
same van with Suresh.
Kamali (PW2) told Maheshwari (PW1)  that  a  man  was
waiting alongside a motorcycle when the  school  van  returned  to  Karkudal
village  on  27.7.2009.
The  man  informed  Suresh  that  his  mother  and
grandmother were not well.  
According to Kamali (PW2), the man told  Suresh,
that he had been asked by Maheshwari (PW1) to bring Suresh to the  hospital.

Based on the aforesaid assertions, Suresh had accompanied the  man  on  his
motorcycle.
After having  inquired  from  Kamali  (PW2),  Maheshwari  (PW1)
sought information from another student Malai,  but  could  not  gather  any
positive information from her.
Thereafter,  she  was  informed  by  Kurinji
Selvan (PW3) belonging  to  the  same  village,  that  he  had  seen  Suresh
disembarking from the Sakthi school van on 27.7.2009 at about 4.30 p.m.   
He
also told her, that a man standing alongside a motorcycle,  had  called  out
to Suresh and had taken Suresh along with him on  his  motorcycle.   
Kurinji
Selvan (PW3) advised Maheshwari (PW1) to approach  the  police.
Maheshwari
(PW1) accordingly proceeded to Police Station,  Kammapuram,  to  register  a
complaint.  
The said complaint was registered at  7  p.m.  on  the  date  of
occurrence, i.e., on 27.7.2009 itself.  
Based thereon, Crime no.106 of  2009
was registered under Section 366 of the Indian Penal Code.
2.    At about 9.30 p.m. on the same  day,  i.e.,  on  27.7.2009  Maheshwari
(PW1) received a call on her mobile phone.  
The  caller  identified  himself
as Shankar.  The caller demanded a ransom of Rs.5 lakhs for the  release  of
Suresh.  Immediately after the receipt of  the  aforesaid  call,  Maheshwari
(PW1) again rushed to  the  Police  Station  Kammapuram,  and  informed  the
Station House Officer about the call received by her.
3.    The investigating officer called Kasinathan (PW13), the  then  Village
Administrative Officer of village  Karkudal,  Taluka  Vridhachalam,  to  the
Vridhachalam Police Station.  Having taken permission  from  the  Tehsildar,
Kasinathan (PW13) and his assistant went to Vridhachalam.  From there,  they
went to the house of the accused, and in the presence of Kasinathan  (PW13),
the two accused were apprehended.
In the  presence  of  Kasinathan  (PW13),
the accused made confessional statements, leading to the recovery  of  three
mobile  phone  sets,  two  of  which  had  sim  cards.   
The  accused   also
acknowledged, having strangulated Suresh when ransom was not  paid  for  his
release.  
The accused also confessed, that they had put  the  dead  body  of
Suresh in a gunny bag, and thereafter, had  thrown  it  in  the  Meerankulam
tank.  
Based on the aforesaid confessional statement,  in  the  presence  of
Kasinathan (PW13), and on the pointing out of the accused, the dead body  of
Suresh was retrieved by personnel belonging to the fire service squad.   
The
dead body of Suresh was found in a gunny bag which had been  fished  out  of
the above-mentioned tank.  
The accused also made statements to  the  police,
whereupon the school bag, books and slate belonging to the  deceased  Suresh
came to be recovered from the residence of the accused, in the  presence  of
Kasinathan (PW13).
4.    During the course of the investigation  emerging  out  of  the  mobile
phones recovered from the accused,
the police identified  Saraswathi  (PW8),
who affirmed that she had received a phone call from  a  person  who  called
himself Shankar, on 27.7.2009 at about 9 p.m.
She also disclosed, that  the
caller had enquired from her about the phone  number  of  Maheshwari  (PW1).
Saraswathi (PW8) had required the caller, to ring  her  up  after  sometime.
She had received another call from Shankar  and  had  furnished  the  mobile
phone number of Maheshwari (PW1) to him.
Consequent upon the  gathering  of
the above information,
the accused were charged under  Sections  364-A  (for
kidnapping  for  ransom),  302  (murder)  and   201   (for   having   caused
disappearance of evidence) of the Indian Penal Code.
The trial of the  case
was committed to the Court of Session, whereupon, the  prosecution  examined
19 prosecution witnesses.  The prosecution also relied on  18  exhibits  and
10 material objects.  After the statements of the prosecution witnesses  had
been recorded, the statements of the accused  were  recorded  under  Section
313 of the Code of Criminal Procedure.   Despite  having  been  afforded  an
opportunity, the accused did not produce any witness in their own defence.
5.    On the culmination  of  the  trial,  the  accused-appellant  Sunder  @
Sunderajan was found guilty and convicted of  the  offences  under  Sections
364-A, 302 and 201 of the Indian Penal Code by the  Sessions  Judge,  Mahila
Court, Cuddalore.  For the first two  offences,  the  accused-appellant  was
awarded the death penalty along with  fine  of  Rs.1,000/-  each.   For  the
third  offence,  the  accused-appellant  was  awarded   7   years   rigorous
imprisonment along with a fine of Rs.1,000/-.
Vide RT  no.2  of  2010,  the
matter  was  placed  before  the  High  Court  of   Judicature   at   Madras
(hereinafter referred to as, the High Court), for confirmation of the  death
sentence  imposed   on   the   accused-appellant.  
The   accused-appellant
independently of the aforesaid, filed Criminal Appeal no.525 of 2010  before
the High Court, for assailing the order of his conviction.
Vide its  common
judgment dated 30.9.2010,  the  High  Court  confirmed  the  death  sentence
imposed on the accused-appellant and  simultaneously  dismissed  the  appeal
preferred by Sunder @ Sundararajan.
Thus viewed, the judgment  rendered  by
the Sessions Judge, Mahila Court at Cuddalore dated 30.7.2010  was  affirmed
by the High Court vis-à-vis the accused-appellant.
6.    The Court of Session acquitted Balayee, accused no. 2.  It  is  not  a
matter of dispute  before  us,  that  the  acquittal  of  Balayae,  was  not
contested by the prosecution by preferring  any  appeal.   It  is  therefore
apparent, that for all intents and purposes accused no.2  stands  discharged
from the matter on hand.
7.    It is not necessary to deal with the statements of all the  witnesses,
in so far  as  the  instant  controversy  is  concerned.  
Even  though  the
prosecution had rested its case, on circumstantial evidence alone, it  would
be necessary to refer to the statements of a few witnesses  so  as  to  deal
with the submissions advanced  on  behalf  of  the  accused-appellant.  
The
deposition  of  the  relevant  witnesses  is  accordingly  being  summarized
hereinafter.
8.    Maheshwari (PW1) was the  mother  of  the  deceased  Suresh.   It  was
Maheshwari (PW1) who had lodged  the  First  Information  Report  at  Police
Station, Kammapuram, on  27.7.2009.   In  her  statement  before  the  trial
court, she asserted that she had four  children,  three  daughters  and  one
son.  Suresh was her only son.   She  deposed,  that  she  was  running  all
domestic affairs of her household at Village Karkudal in Taluk  Vridhachalam
by herself, as her husband had gone abroad to  earn  for  the  family.   She
affirmed, that she was also engaged  in  agriculture.   She  also  asserted,
that her son Suresh was studying in Class II  at  the  Sakthi  Matriculation
School, Vridhachalam.  He used to go to school, by the school van, and  used
to return along with other children from school,  at  about  4.30  p.m.   As
usual, on 27.7.2009, he had gone to school in the school van at  about  8.00
a.m. but since he had not returned at 4.30 p.m., she had gone out to  search
for him.  She had enquired from other students who used  to  travel  in  the
same school van along with her son.  Kamali (PW2) informed her that her  son
Suresh had got down from the  school  van  on  27.7.2009,  in  her  company.
Kamali (PW2) also informed her, that as soon as Suresh  got  down  from  the
school van on 27.7.2009, the accused-appellant who  was  standing  near  the
neem tree along side his motorcycle, called Suresh by  his  name,  and  told
him that his mother and grandmother were ill, and had required him to  bring
Suresh to them, on his  motorcycle.   At  the  man’s  asking,  according  to
Kamali (PW2), Suresh sat on  the  man’s  motorcycle,  and  was  taken  away.
Maheshwari (PW1) then enquired from  Malai,  another  student  who  used  to
travel by the same school van.  Malai, however, did not remember  about  the
presence of Suresh.  Finally, Maheshwari (PW1) was told  by  Kurinji  Selvan
(PW3), a co-villager living in Karkudal village, that  he  had  seen  Suresh
getting down from the school van and being  taken  away  by  a  man  on  his
motorcycle.  Kurinji Selvan (PW3) advised Maheshwari (PW1),  to  report  the
matter to the police.  Based  on  the  aforesaid  inputs,  Maheshwari  (PW1)
deposed, that she had immediately gone to Police  Station,  Kammapuram,  and
had  lodged  a  report  at  7.00  p.m.   Having  returned  to  her  village,
Maheshwari (PW1) claims to have received a  call  on  her  mobile  phone  at
about 9.30 p.m.  According to her, the  caller  was  the  accused-appellant.
The accused-appellant demanded a sum of Rs.5,00,000/- for the  safe  release
of her son Suresh.  Consequent upon  the  receipt  of  the  aforesaid  phone
call, Maheshwari  (PW1)  deposed,  that  she  had  returned  to  the  Police
Station, Kammapuram, to apprise the police  of  the  aforesaid  development.
According to Maheshwari (PW1), the police informed her  on  30.7.2009,  that
the body of her son had been recovered from a lake and had been  brought  to
Vridhachalam Hospital.  In her statement,  she  affirmed  having  identified
the clothes, shoes and socks as also neck tie of her son Suresh.   She  also
identified his school bag which had  the  inscription  ‘JAYOTH’.   She  also
identified his books as also the black colour slate having  a  green  colour
beeding around it, as that of her son Suresh.  She also identified the  body
of her son when she set her eyes on him at  Vridhachalam  Hospital.   During
her cross-examination, she deposed  that  she  had  not  approached  Kurinji
Selvan (PW3).  It was Kurindi  Selvan  (PW3),  who  had  approached  her  on
seeing her crying.  When she disclosed to Kurinji  Selvan  (PW3)  about  her
missing  son,  he  had  informed  her  that  he  had  seen  her  son  Suresh
disembarking from the school van whereafter, Suresh had  gone  away  with  a
man on a motorcycle.
9.    Kamali  entered  appearance  before  the  trial  court  as  PW2.   She
asserted that she was (at the time of her deposition) studying  in  the  6th
standard at Sakthi Matriculation School, Vridhachalam.   She  affirmed  that
Suresh, the deceased, was known to her.  She deposed that on 27.7.2009,  she
had gone to her school in the school van, wherein there were other  children
from the village including Suresh.  She also deposed  that  she  along  with
Suresh returned to Karkudal Village on 27.7.2009, at about 3.00 p.m. in  the
school van.  Suresh had got down from the school van, along with  the  other
children.  When the van had arrived at the  village,  she  had  seen  a  man
standing along side a motorcycle.  After Suresh got  down  from  the  school
van, the man beckoned at Suresh.  He informed Suresh, that  his  mother  and
grandmother were ill, and that Suresh’s  mother  had  asked  him,  to  bring
Suresh to the hospital.  She  deposed  that  when  she  reached  her  house,
Maheshwari (PW1) had inquired about the whereabouts of her  son,  from  her.
She had informed Maheshwari (PW1) the factual position  as  narrated  above.
She also asserted, that she was questioned by the police during  the  course
whereof she had informed the police, 
that she could  identify  the  accused.
She  acknowledged  that  an  identification  parade  was  conducted  by  the
Judicial Magistrate at Cuddalore Central Prison, where  she  had  identified
the  accused-appellant,  namely,  the  man  who  had  taken  Suresh  on  the
motorcycle on 27.7.2009, when they had returned from school.
10.   Kurinji Selvan deposed before the trial court as PW3.  He stated  that
Maheshwari (PW1), Kamali (PW2), as also the deceased Suresh, were  known  to
him.  He stated that on 27.7.2009 at about  4.30  p.m.  when  he  was  going
towards his paddy field  on  his  motorcycle,  the  Sakthi  School  van  had
dropped the school children of his village,  at  the  corner  of  the  river
path.  He had also stopped his motorcycle, there.  He had seen the  accused-
appellant  standing  near  the  neem  tree  along  side  a  motorcycle.   He
identified the nature, as also, the  colour  of  the  clothes  worn  by  the
accused-appellant.  He confirmed, that the accused–appellant had called  out
to Suresh by his name, whereupon, Suresh had gone up to  him.   He  deposed,
that he had seen Suresh being taken away by the man, on his  motorcycle.  He
further deposed, that when he was returning from his paddy  field  at  about
5.30 p.m., he had seen Maheshwari (PW1)  weeping.   When  he  enquired  from
her, she told him, that her son was missing.  Kurinji Selvan (PW3)  affirmed
that he had  informed  her,  that  a  man  had  taken  her  son  away  on  a
motorcycle.  He also advised Maheshwari (PW1) to lodge  a  report  with  the
police.  He further deposed, that the body  of  a  child  was  recovered  on
30.7.2009 and he was informed about the same at about  8.00  a.m.  The  body
had been  recovered  from  Meerankulam  tank  in  Vuchipullaiyar  Vayalapadi
village.  Having received the aforesaid information,  he  had  proceeded  to
the Meerankulam tank where he  identified  Suresh,  to  the  Inspector.   He
further  deposed,  that  an  identification  parade  was  conducted  at  the
Cuddalore Central Prison,  in  presence  of  the  Judicial  Magistrate.   He
affirmed, that he had identified the accused-appellant  as  the  person  who
had taken Suresh, when  Suresh  had  disembarked  from  the  school  van  on
27.7.2009.  He also asserted, that he had identified  the  motorcycle,  when
he was shown two motorcycles, as the one on which the accused-appellant  had
taken Suresh away on 27.7.2009.
11.   The statement of M. Santhanam was recorded as PW6.  He  affirmed  that
he was the Correspondent and Principal of Sakthi Matriculation  School.   He
also affirmed that Suresh was studying in his school in  the  2nd  standard.
He confirmed that Suresh had attended the school on 27.7.2009.  He  produced
the attendance register, wherein the presence of Suresh was duly recorded.
12.   Saraswathi (PW8) appeared before the trial court and deposed, that  on
27.7.2009,  she  had  received  a  call  on   her   mobile   phone   bearing
No.9943020435 at about 9.00 p.m.  The caller identified  himself  as  Sankar
and asked for the phone number of Maheshwari (PW1).   She  stated  that  she
had informed the caller, to ring her after a little  while,  by  which  time
she would retrieve the phone number of Maheshwari (PW1).   Accordingly,  the
caller again spoke to her on her mobile phone, whereupon, she  had  conveyed
the phone number of Maheshwari (PW1), to him.
13.   A. Bashir, Judicial Magistrate No.1 appeared before  the  trial  court
as PW10.  He deposed that he had gone to the  Cuddalore  Central  Prison  on
25.8.2009 to conduct the identification parade.  He  had  taken  his  office
assistant along with him.  He  had  selected  co-prisoners  similar  to  the
accused-appellant to participate  in  the  identification  parade.   Persons
selected by him were of the same height, weight, colour and beared.  Out  of
these eight persons selected by him, both Kamali (PW2)  and  Kurinji  Selvan
(PW3)   had   identified   the   accused-appellant,   in   three   different
combinations.
14.   Sunil (PW11), working  as  legal  officer  of  the  Vodafone  Company,
during the course of his deposition before the trial  court  affirmed,  that
he was required by the Inspector of Police,  Vridhachalam,  to  provide  him
with the details of Vodafone cell phone numbers  9946205961  and  9943020435
for the period from 25.7.2009 to 28.7.2009.  He affirmed that he  had  taken
the aforesaid details from the computer and given them to the  Inspector  of
Police.  He confirmed that  three  calls  had  been  made  from  sim  number
9946205961, upto 9.39 p.m. on  27.7.2009.   He  also  affirmed,  that  phone
number 9943020435 was in the name of Saraswathi (PW3).
15.   Dr. Kathirvel appeared  before  the  trial  court  as  PW12.   He  had
conducted the post mortem on the dead body  of  Suresh  on  30.7.2009.   The
dead body was identified by the  police  Constable,  in  the  mortuary.   He
asserted that the  body  was  in  a  decomposed  state.   According  to  his
analysis, the child had died within 36 to 48 hours prior to the post  mortem
examination.  According to the opinion tendered by him, suffocation was  the
cause of the death of the child.  And that, the child, in his  opinion,  had
died prior to his being drowned in the water.
16.   Kasinathan  (PW13),  the  Village  Administrative  officer,  Karkudal,
while appearing before the trial court confirmed, that he was known  to  the
accused-appellant.  He deposed that on 30.7.2009, he was summoned  from  his
residence by the Inspector  of  Police,  Vridhachalam  at  about  4.30  p.m.
Thereupon, he had gone to the Vridhachalam Police  Station.   The  Inspector
of Police had required Kasinathan (PW13) to be a police witness,  whereupon,
he had obtained permission from the Tahsildar, for being a  police  witness.
He was taken to the house of the accused-appellant in a police  jeep.   They
reached his house at 7.00 a.m. on 30.7.3009.  As soon  as  the  accused  saw
the police jeep, both of them fled from the spot.  Whilst running away,  the
accused-appellant had fallen down, and thereupon, the police  personnel  had
apprehended him.  Women  constables  had  apprehended  Balayee  (A-2).   The
accused-appellant had made a confessional statement to  the  police  in  the
presence of Kasinathan (PW13).  The accused-appellant had handed over  three
mobile phones to the Police Inspector in his  presence.   Only  two  of  the
said phones had sim cards.  The  accused-appellant  had  also  produced  the
motorcycle, on which he had taken away Suresh, when he  had  got  down  from
the school van at village  Karkudal  on  27.7.2009.   The  accused-appellant
also produced a school bag  containing  a  slate  and  two  books  from  his
residence in his presence.  Kasinathan (PW13)  admitted  having  signed  the
“mahazar” when recoveries of the  aforesaid  articles  were  made  from  the
accused-appellant on 30.7.2009.  Based on the information furnished  by  the
accused-appellant, Kasinathan (PW13) acknowledged, that he had gone  to  the
Meerankulam tank in Vayalapadi village, in the police jeep, along  with  the
other police personnel.  When the gunny bag containing the dead body of  the
child was retrieved from the tank, the accused-appellant had identified  the
same as Suresh.  He had  also  signed  on  the  “mahazar”  prepared  on  the
recovery of the gunny bag, containing the dead body of Suresh.
17.   It is not necessary to refer  to  the  statement  of  other  witnesses
except the fact that the call details  produced  by  Sunil  (PW11)  indicate
that two calls were made from the Mobile Phone recovered from  the  accused-
appellant to Saraswathi (PW8).  The said calls were made at  9.22  p.m.  and
9.25 p.m. respectively.  The call details further  indicate  that  from  the
same number, a call was made to Maheshwari (PW1) at 9.39 p.m.
18.   It is on the basis of the  aforesaid  oral  and  documentary  evidence
that we shall endeavour to determine the issues canvassed at  the  hands  of
the learned counsel for the appellant.
19.   The solitary contention  advanced  by  the  learned  counsel  for  the
appellant on the merits of the case was, that the prosecution  had  ventured
to substantiate the allegations levelled against the appellant only  on  the
basis of circumstantial evidence.  It was sought to be pointed out, that  in
the absence of direct evidence, the slightest of  a  discrepancy,  depicting
the possibility of two views would exculpate the accused of  guilt,  on  the
basis of benefit of doubt.  Before dealing with the circumstantial  evidence
relied upon against the appellant, learned counsel invited our attention  to
the legal position  declared  by  this  Court,  on  the  standard  of  proof
required  for  recording  a  conviction,  on  the  basis  of  circumstantial
evidence.  In this behalf, learned counsel for the appellant  first  of  all
placed reliance on  Sharad  Birdhichand  Sarda  Vs.  State  of  Maharashtra,
(1984) 4 SCC 116.  It was pointed out, that in  the  instant  judgment  this
Court laid down the golden principles of standard of proof,  required  in  a
case sought to be established on the basis of circumstantial  evidence.   In
this behalf reliance was placed on the following observations:-

      “152. A close analysis of this decision would show that the  following
           conditions must be fulfilled before a case  against  an  accused
           can be said to be fully established:


           (1)   the circumstances from which the conclusion of guilt is to
                 be drawn should be fully established.


                 It may be noted here that this Court  indicated  that  the
                 circumstances concerned 'must or should' and not 'may  be'
                 established. There is not only a grammatical but  a  legal
                 distinction between 'may be proved' and 'must be or should
                 be proved as was held by this Court  in  Shivaji  Sahebrao
                 Bobade v. State of Maharashtra : 1973CriLJ1783  where  the
                 following observations were made:

                 Certainly, it is a primary principle that the accused must
                 be and not  merely  may  be  guilty  before  a  Court  can
                 convict, and the mental  distance  between  'may  be'  and
                 'must be' is long and divides vague conjectures from  sure
                 conclusions.

           (2)   the facts so established should be  consistent  only  with
                 the hypothesis of the guilt of the  accused,  that  is  to
                 say,  they  should  not  be  explainable  on   any   other
                 hypothesis except that the accused is guilty.


           (3)   the circumstances should be of  a  conclusive  nature  and
                 tendency.


           (4)   they should exclude every possible hypothesis  except  the
                 one to be proved, and


           (5)   there must be a chain of evidence so complete  as  not  to
                 leave any reasonable ground for the conclusion  consistent
                 with the innocence of the accused and must  show  that  in
                 all human probability the act must have been done  by  the
                 accused.


      153.  These five golden principles, if we may say so,  constitute  the
           panchsheel of the  proof  of  a  case  based  on  circumstantial
           evidence.”


Learned  counsel  for  the  appellant  thereafter  placed  reliance  on  the
decision rendered in Tanviben Pankajkumar  Divetia  Vs.  State  of  Gujarat,
(1997) 7  SCC  156.   He  placed  reliance  on  the  following  observations
recorded therein:-

      “45.   The  principle  for  basing  a  conviction  on  the  basis   of
           circumstantial evidences has  been  indicated  in  a  number  of
           decisions of this Court and the law is well  settled  that  each
           and every incriminating circumstance must be clearly established
           by reliable and clinching  evidence  and  the  circumstances  so
           proved  must  form  a  chain  of  events  from  which  the  only
           irresistible conclusion about the guilt of the  accused  can  be
           safely drawn and  no  other  hypothesis  against  the  guilt  is
           possible. This Court has clearly sounded a note of caution  that
           in a case depending largely upon circumstantial evidence,  there
           is always a danger that conjecture or  suspicion  may  take  the
           place of legal proof. The Court must satisfy itself that various
           circumstances in the  chain  of  events  have  been  established
           clearly and such completed chain of events must be  such  as  to
           rule out  a  reasonable  likelihood  of  the  innocence  of  the
           accused. It has also been indicated that when the important link
           goes, the chain of circumstances  gets  snapped  and  the  other
           circumstances cannot in any manner, establish the guilt  of  the
           accused beyond all reasonable doubts. It has been held that  the
           Court has to be watchful and avoid the danger  of  allowing  the
           suspicion to make the place  of  legal  proof  for  some  times,
           unconsciously it may happen to be a  short  step  between  moral
           certainty and legal proof. It has been indicated by  this  Court
           that there is a long mental distance between 'may be  true'  and
           'must be true'  and  the  same  divides  conjectures  from  sure
           conclusions. (Jaharlal Das v. State of Orissa : 1991 3 SCC 27)


      46.   We may indicate here that  more  the  suspicious  circumstances,
           more care and caution are required to  be  taken  otherwise  the
           suspicious circumstances may unwittingly enter the  adjudicating
           thought  process  of  the  Court  even  though  the   suspicious
           circumstances had not been clearly established by clinching  and
           reliable evidences. It appears to us  that  in  this  case,  the
           decision of the Court in convicting the appellant has  been  the
           result of the suspicious circumstances entering the adjudicating
           thought process of the Court.”

Learned counsel also placed reliance on Sucha Singh  Vs.  State  of  Punjab,
(2001) 4 SCC 375.  The instant judgment was relied upon in order to  support
the contention, that circumstantial  evidence  could  not  be  relied  upon,
where there was any vacuum in evidence.  It was pointed out therefrom,  that
this Court has held, that each aspect of the criminal  act  alleged  against
the accused, had to be established on the basis of  material  of  a  nature,
which would be sufficient to lead to the inference that there  could  be  no
other view possible, than the one arrived  at  on  the  basis  of  the  said
circumstantial evidence.  In this behalf, learned counsel for the  appellant
placed reliance on the following observations recorded  in  the  afore-cited
judgment.

      “19.  Learned  senior  counsel  contended  that  Section  106  of  the
           Evidence Act is not intended for the purpose of filling  up  the
           vacuum in prosecution evidence. He invited our attention to  the
           observations made by the Privy Council in Attygalle  Vs.  R  AIR
           1936 PC 169, and also in Stephen Seneviratne vs. The King :  AIR
           1936 PC 289. In fact the  observations  contained  therein  were
           considered by this Court in an early decision authored by Vivian
           Bose, J, in Shambhu Nath Mehra vs State of Ajmer,  AIR  1956  SC
           404. The statement of law made  by  the  learned  Judge  in  the
           aforesaid decision has been extracted by us  in  State  of  West
           Bengal vs. Mir Mohammad Omar, 2000 (8) SCC 382. It is useful  to
           extract a further portion of the observation made by us  in  the
           aforesaid decision:

                "33.   Presumption  of  fact  is  an  inference  as  to  the
                existence of one fact  from  the  existence  of  some  other
                facts, unless the truth  of  such  inference  is  disproved.
                Presumption of fact is a rule in law of evidence that a fact
                otherwise doubtful may be inferred from certain other proved
                facts. When inferring the existence of a fact from other set
                of proved facts, the court exercises a process of  reasoning
                and reaches  a  logical  conclusion  as  the  most  probable
                position.  The  above  principle  has   gained   legislative
                recognition in India when Section 114 is incorporated in the
                Evidence Act. It empowers the court to presume the existence
                of any fact which it thinks likely to have happened. In that
                process the court shall have regard to the common course  of
                natural events, human conduct etc. in relation to the  facts
                of the case."

      20.   We pointed out that Section 106  of  the  Evidence  Act  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 prosecution has succeeded in  proving
           facts for which a reasonable inference can  be  drawn  regarding
           the existence of certain other  facts,  unless  the  accused  by
           virtue of special knowledge regarding such facts failed to offer
           any explanation which might drive the court to draw a  different
           inference.”

20.   Based on the aforesaid judgments, the  first  contention  advanced  on
behalf of the accused-appellant was, that there was no material produced  by
the prosecution to establish the factum of the commission of the  murder  of
the deceased Suresh (at the hands of the accused-appellant).   According  to
the learned counsel, the aforesaid vacuum could not  be  filled  up  on  the
basis of any presumption.
21.   We have considered  the  first  contention  advanced  by  the  learned
counsel for the appellant, on the basis of the  contention  noticed  in  the
foregoing paragraph.  In the veiled submission advanced in the hands of  the
learned counsel for the  appellant,  we  find  an  implied  acknowledgement,
namely, that learned counsel acknowledges, that the prosecution  had  placed
sufficient material on the record of the case to substantiate the factum  of
kidnapping of the deceased Suresh, at the hands  of  the  accused-appellant.
Be there as it may, without drawing  any  such  inference,  we  would  still
endeavour to determine, whether  the  prosecution  had  been  successful  in
establishing the factum of kidnapping of the deceased Suresh, at  the  hands
of the accused-appellant.  In so far as the instant aspect of the matter  is
concerned, reference may first be made to the statement of Saraswathi,  PW-8
wherein she affirmed that on 27.7.2009, at about 9 p.m.,  when  she  was  at
her residence, she had received a call on her mobile  phone  bearing  number
9943020435.  The caller identified himself as Shankar.   She  deposed,  that
the caller had inquired from  her  about  the  phone  number  of  Maheshwari
(PW1).  She stated, that she had responded to the  said  Shankar  by  asking
him to call her after sometime,  and  in  the  meanwhile,  she  (Saraswathi)
would gather the phone number of Maheshwari (PW1).   Soon  after  the  first
call, Saraswathi (PW8) testified, that she received a second call  from  the
same person.   On  this  occasion,  Saraswathi  (PW-8)  acknowledged  having
provided the caller with  the  mobile  phone  number  of  Maheshwari  (PW1).
Through independent evidence the prosecution was in a position to  establish
that the first of the aforesaid  two  calls,  were  received  by  Saraswathi
(PW8) at 9.22 p.m., and the second one at 9.25 p.m.  The caller,  on  having
obtained the mobile  phone  number  of  Maheshwari  (PW1)  then  called  her
(Maheshwari – PW1) on the mobile phone number supplied by Saraswathi  (PW8).
On the basis of independent evidence the prosecution has also been  able  to
establish, that Maheshwari, (PW1) received the instant phone  call  at  9.39
p.m., from the same phone number from which Saraswathi,  PW-8  had  received
two calls.  In her statement, Maheshwari (PW1)  asserted,  that  the  caller
demanded a ransom of Rs.5,00,000/- for the safe return of her  son,  Suresh.
At this juncture, as per her statement, Maheshwari (PW1) again  visited  the
police  station  to  apprise  the  police  of  the  said  development.   The
aforesaid material, was one of the leads, which the police  had  adopted  in
identifying the accused-appellant.
22.    Beside  the  aforesaid,  the  prosecution  placed  reliance  on   the
deposition of Kamali (PW2), for identifying the appellant as  the  kidnapper
of the deceased, Suresh.  In her statement Kamali (PW-2) affirmed, that  she
along with the deceased Suresh had returned to  their  village  Karkudal  on
27.7.2009 at about 4.30 p.m. in the school van.   When  they  alighted  from
the school van,  as  per  the  deposition  of  Kamali  (PW2),  the  accused-
appellant was seen by her, standing besides his motor-cycle.   The  accused-
appellant, as per the  testimony  of  Kamali  (PW2),  had  gestured  towards
Suresh with his hand.  The deceased Suresh and Kamali (PW2) had  accordingly
gone to the accused-appellant. The accused-appellant had told  Suresh,  that
his mother and grandmother were unwell, and he had been asked by his  mother
to bring him (Suresh) to  the  hospital.  Thereafter,  according  to  Kamali
(PW2), the accused-appellant had taken away  the  deceased  Suresh,  on  his
motor-cycle.  It would be  relevant  to  indicate  that  Kamali  (PW2)  duly
identified the accused-appellant  in  an  identification  parade,  conducted
under  the  supervision  of  A.  Bashir,  Judicial  Magistrate  (PW10),   on
25.8.2009 at Cuddalore Central Prison.  According to  the  testimony  of  A.
Bashir, Judicial Magistrate, Kamali PW-2 correctly identified  the  accused-
appellant.  The aforesaid evidence was the second basis of  identifying  the
accused-appellant as the person, who had kidnapped the deceased Suresh.
23.   The deposition of Kurinji  Selvan  (PW3)  has  already  been  narrated
hereinabove.  Kurinji Selvan (PW3) had seen  Suresh  disembarking  from  the
school van on 27.7.2009 at about 4.30 p.m., when the said van  had  returned
to village Karkudal.  Kurinji Selvan (PW3) affirmed, that he had  also  seen
the accused-appellant waiting for the arrival of  the  school  van  under  a
neem tree alongside his motorcycle.   Kurinji  Selvan  (PW3)  also  deposed,
that  he  had  seen  the  accused-appellant  taking  away  Suresh,  on   his
motorcycle.  On the date of the incident itself, he had informed  Maheshwari
(PW1), that Suresh had been taken away by a man on his motorcycle.   In  the
same manner as Kamali (PW2)  had  identified  the  accused-appellant  in  an
identification parade, Kurinji Selvan (PW3) had  also  participated  in  the
identification parade conducted at Cuddalore Central  Prison  on  25.8.2009.
He had  also  identified  the  accused-appellant  in  the  presence  of  the
Judicial Magistrate.  The statement of Kurinji Selvan (PW3) constitutes  the
third basis of identifying the accused-appellant as the man  who  had  taken
away Suresh on his motorcycle on 27.7.2009.
24.   Based on the evidence  noticed  in  the  three  preceding  paragraphs,
there can be no  doubt  whatsoever,  that  the  accused-appellant  had  been
identified through cogent evidence as the person who had taken  away  Suresh
when he disembarked from school van on 27.7.2009.  The factum of  kidnapping
of Suresh by the accused-appellant, therefore, stands duly established.
25.   The material question to  be  determined  is,  whether  the  aforesaid
circumstantial evidence is sufficient to further infer,  that  the  accused-
appellant had committed the murder of  Suresh.   According  to  the  learned
counsel for the appellant, there is no evidence whatsoever,  on  the  record
of the case, showing the participation of the accused-appellant  in  any  of
the acts which  led  to  the  death  of  Suresh.   It  was,  therefore,  the
submission of the learned counsel for the appellant, that  even  though  the
accused-appellant may be held guilty of having kidnapped  Suresh,  since  it
had not been established that he had committed  the  murder  of  Suresh,  he
cannot be held guilty of murder in the facts of this case.
26.   Having given our thoughtful consideration to the  submission  advanced
at the hands of the learned counsel for the appellant, we are of  the  view,
that the instant submission is wholly misplaced and fallacious.  Insofar  as
the instant aspect of the matter is concerned, reference may be made to  the
judgment rendered by this Court in Sucha Singh’s case  (supra),  wherein  it
was held as under:-

      “21.  We are mindful of what  is  frequently  happening  during  these
           days.  Persons are kidnapped in the  sight  of  others  and  are
           forcibly taken out of the sight of  all  others  and  later  the
           kidnapped are killed.  If a legal principle is to be  laid  down
           that for the murder of such kidnapped there  should  necessarily
           be independent evidence apart from the circumstances  enumerated
           above, we would be providing a safe jurisprudence for protecting
           such criminal activities.  India cannot now afford to  lay  down
           any such legal  principle  insulating  the  marauders  of  their
           activities of killing kidnapped innocents  outside  the  ken  of
           others.”

A perusal of the aforesaid determination would reveal,  that  having  proved
the factum of kidnapping, the inference of the consequential murder  of  the
kidnapped person, is liable to be presumed.  We are one with  the  aforesaid
conclusion.  The logic for the aforesaid  inference  is  simple.   Once  the
person concerned has been shown as having been  kidnapped,  the  onus  would
shift on the kidnapper to establish how and when  the  kidnapped  individual
came to be released from his custody.  In the  absence  of  any  such  proof
produced by the kidnapper, it would be natural to  infer/presume,  that  the
kidnapped  person  continued  in  the  kidnapper’s  custody,  till  he   was
eliminated.  The instant conclusion would also emerge from  Section  106  of
the Indian Evidence Act, 1872 which is being extracted hereunder :
      “106 - Burden of proving fact especially  within  knowledge—.When  any
      fact is especially within the knowledge of any person, the  burden  of
      proving that fact is upon him.

                                Illustrations

      (a) When a person does an act with  some  intention  other  than  that
      which the character and circumstances of the act suggest,  the  burden
      of proving that intention is upon him.

      (b) A is charged with travelling on a railway without  a  ticket.  The
      burden of proving that he had a ticket is on him.”

27.   Since in the facts and circumstances of this case, it  has  been  duly
established, that Suresh had been kidnapped by  the  accused-appellant;  the
accused-appellant has not been able to produce any material  on  the  record
of this case to show the release of Suresh from his  custody.   Section  106
of the Indian Evidence Act, 1872 places the onus on him.  In the absence  of
any such material produced by the accused-appellant, it has to be  accepted,
that the custody of Suresh had remained with the accused-appellant, till  he
was murdered.  The motive/reason for the accused-appellant, for  taking  the
extreme step was, that ransom as demanded by him, had  not  been  paid.   We
are therefore, satisfied,  that  in  the  facts  and  circumstances  of  the
present case, there is sufficient evidence on the record of  this  case,  on
the basis whereof even the factum of murder of Suresh at the  hands  of  the
accused-appellant stands established.
28.   We may now refer to some further material on the record of  the  case,
to substantiate our aforesaid conclusion.   In  this  behalf,  it  would  be
relevant to  mention,  that  when  the  accused-appellant  was  detained  on
30.7.2009,  he  had  made  a  confessional  statement  in  the  presence  of
Kasinathan (PW13)  stating,  that  he  had  strangulated  Suresh  to  death,
whereupon his body was put into a gunny bag and thrown into the  Meerankulam
tank.  It was thereafter, on the  pointing  out  of  the  accused-appellant,
that the body of Suresh was recovered from the  Meerankulam  tank.   It  was
found in a gunny bag, as stated by  the  accused-appellant.   Dr.  Kathirvel
(PW12) concluded after holding the post mortem examination of the dead  body
of Suresh, that Suresh had died on account  of  suffocation,  prior  to  his
having been drowned.   The  instant  evidence  clearly  nails  the  accused-
appellant as the  perpetrator  of  the  murder  of  Suresh.   Moreover,  the
statement of Kasinathan (PW13) further reveals that the  school  bag,  books
and slate of Suresh were  recovered  from  the  residence  of  the  accused-
appellant.  These articles were confirmed by Maheshwari (PW1)  as  belonging
to  Suresh.   In  view  of  the  factual  and  legal  position  dealt   with
hereinabove, we have  no  doubt  in  our  mind,  that  the  prosecution  had
produced sufficient  material  to  establish  not  only  the  kidnapping  of
Suresh, but also his murder at the hands of the accused-appellant.
29.   Besides the submission advanced on  the  merits  of  the  controversy,
learned counsel for the accused-appellant also assailed the confirmation  by
the High Court of the death sentence imposed by  the  trial  court.   During
the course of hearing,  it  was  the  vehement  contention  of  the  learned
counsel for the accused-appellant, that infliction of life imprisonment,  in
the facts and circumstances of this case, would have satisfied the  ends  of
justice.  It was also the contention of the learned counsel for the accused-
appellant, that the facts and circumstances of this case are not  sufficient
to categorize the present case as a ‘rarest of a rare  case’,  wherein  only
the death penalty would meet the ends of justice.  In order to  support  the
aforesaid contention, learned counsel  for  the  accused-appellant,  in  the
first instance, placed reliance on a recent judgment rendered by this  Court
in Haresh Mohandas Rajput Vs.  State  of  Maharashtra,  (2011)  12  SCC  56,
wherein, having taken  into  consideration  earlier  judgments,  this  Court
delineated the circumstances in which the death penalty  could  be  imposed.
Reliance was placed on the following observations recorded therein:-

      “Death Sentence – When Warranted:


      “18.  The guidelines laid down in Bachan Singh  v.  State  of  Punjab,
           (1980) 2 SCC 684, may be culled out as under:


           (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
                 alongwith 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 just balance has to be struck between  the  aggravating
                 and the  mitigating  circumstances  before  the  option  is
                 exercised.


      19.   In Machhi Singh and Ors. v. State of Punjab, (1983) 2  SCC  684,
           this Court expanded the "rarest of rare" formulation beyond  the
           aggravating factors listed in Bachan Singh to  cases  where  the
           "collective conscience" of a community is  so  shocked  that  it
           will expect the holders of the judicial powers centre to inflict
           death penalty irrespective of their personal opinion as  regards
           desirability or otherwise of retaining  death  penalty,  such  a
           penalty can be inflicted. But the Bench in this case  underlined
           that  full  weightage  must  be  accorded  to   the   mitigating
           circumstances in a case and a just  balance  had  to  be  struck
           between aggravating and mitigating circumstances.


      20.   "The rarest of the rare case" comes when a convict  would  be  a
           menace and threat to the harmonious and peaceful co-existence of
           the society. The crime 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 co-existence. 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  fiber  of  the  society,  e.g.  crime
           committed for  power  or  political  ambition  or  indulging  in
           organized criminal activities, death sentence should be awarded.
           (See: C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010  SC
           3718; Rabindra Kumar Pal alias Dara Singh v. Republic of  India,
           (2011) 2 SCC 490; Surendra Koli  v.  State  of  U.P.  and  Ors.,
           (2011) 4 SCC 80; Mohd. Mannan (supra); and  Sudam  v.  State  of
           Maharashtra, (2011) 7 SCC 125).


      21.   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.”


Reliance was also placed, on the decision of this Court in Ramnaresh &  Ors.
Vs. State of Chhattisgarh,  (2012)  4  SCC  257.   Insofar  as  the  instant
judgment  is  concerned,   learned   counsel   relied   on   the   following
observations:-

      “The death sentence and principles governing its  conversion  to  life
      imprisonment


      56.   Despite the transformation of approach and  radical  changes  in
           principles of sentencing across  the  world,  it  has  not  been
           possible to put to rest  the  conflicting  views  on  sentencing
           policy.  The  sentencing  policy   being   a   significant   and
           inseparable facet of criminal jurisprudence, has  been  inviting
           the attention of the Courts for providing certainty and  greater
           clarity to it.


      57.   Capital punishment has been a subject matter of great social and
           judicial discussion and catechism. From whatever point  of  view
           it is examined, one undisputable statement of law  follows  that
           it is neither  possible  nor  prudent  to  state  any  universal
           formula  which  would  be  applicable  to  all  the   cases   of
           criminology where capital punishment  has  been  prescribed.  It
           shall always depend upon the facts and circumstances of a  given
           case. This Court has stated various legal principles which would
           be precepts on exercise of judicial discretion  in  cases  where
           the issue is whether the capital punishment should or should not
           be awarded.


      58.   The law  requires  the  Court  to  record  special  reasons  for
           awarding such sentence. The Court, therefore,  has  to  consider
           matters  like  nature  of  the  offence,  how  and  under   what
           circumstances it was committed, the  extent  of  brutality  with
           which the offence was committed, the motive for the offence, any
           provocative  or  aggravating  circumstances  at  the   time   of
           commission of the crime, the possibility of  the  convict  being
           reformed or rehabilitated, adequacy  of  the  sentence  of  life
           imprisonment and other attendant  circumstances.  These  factors
           cannot be similar or identical in any two given cases.


      59.   Thus, it is imperative for the Court to examine each case on its
           own facts, in light of the enunciated  principles.  It  is  only
           upon application of these principles to the  facts  of  a  given
           case that the Court can arrive at a final conclusion whether the
           case in hand is one of the 'rarest of rare' cases and imposition
           of death penalty alone shall serve the ends of justice. Further,
           the Court would also keep in mind  that  if  such  a  punishment
           alone would serve the purpose of  the  judgment,  in  its  being
           sufficiently punitive and purposefully preventive.


           xxx              xxx              xxx              xxx


      72.   The above judgments provide us  with  the  dicta  of  the  Court
           relating to imposition of death penalty. Merely because a  crime
           is heinous per se  may  not  be  a  sufficient  reason  for  the
           imposition of death  penalty  without  reference  to  the  other
           factors and attendant circumstances.


      73.   Most of the heinous crimes under the IPC are punishable by death
           penalty or life imprisonment. That by itself  does  not  suggest
           that in all such offences, penalty  of  death  alone  should  be
           awarded. We must notice, even at the cost of repetition, that in
           such cases awarding of life imprisonment would be a rule,  while
           'death' would be the exception. The term 'rarest of  rare'  case
           which is the consistent  determinative  rule  declared  by  this
           Court, itself suggests that it has to be an exceptional case.


      74.   The life of a particular individual cannot be taken away  except
           according to the procedure established by law and  that  is  the
           constitutional  mandate.  The  law  contemplates  recording   of
           special reasons and, therefore, the expression 'special' has  to
           be given a definite meaning and connotation.  'Special  reasons'
           in  contra-distinction  to  'reasons'  simpliciter  conveys  the
           legislative mandate of putting  a  restriction  on  exercise  of
           judicial  discretion  by  placing  the  requirement  of  special
           reasons.


      75.   Since, the later judgments of  this  Court  have  added  to  the
           principles stated by this Court in  the  case  of  Bachan  Singh
           (supra) and Machhi Singh (supra), it will be useful  to  restate
           the stated principles while also bringing  them  in  consonance,
           with the recent judgments.


      76.   The law enunciated by this Court in  its  recent  judgments,  as
           already noticed, adds and elaborates the  principles  that  were
           stated in the case of Bachan Singh (supra)  and  thereafter,  in
           the case of  Machhi  Singh  (supra).  The  aforesaid  judgments,
           primarily  dissect   these   principles   into   two   different
           compartments - one being the 'aggravating  circumstances'  while
           the other being the 'mitigating circumstances'. The Court  would
           consider  the  cumulative  effect  of  both  these  aspects  and
           normally, it may not be very appropriate for the Court to decide
           the most significant aspect of sentencing policy with  reference
           to one of the classes under any of  the  following  heads  while
           completely ignoring other classes under other heads. To  balance
           the two is the primary duty of the Court. It will be appropriate
           for the Court to come to a final conclusion upon  balancing  the
           exercise that would help  to  administer  the  criminal  justice
           system better and provide an effective and meaningful  reasoning
           by the Court as contemplated under Section 354(3) Cr.P.C.


           Aggravating Circumstances:


           (1)   The offences relating to the commission of heinous  crimes
                 like murder, rape, armed dacoity, kidnapping  etc.  by  the
                 accused with a  prior  record  of  conviction  for  capital
                 felony  or  offences  committed  by  the  person  having  a
                 substantial  history  of  serious  assaults  and   criminal
                 convictions.


           (2)   The offence was committed while the offender  was  engaged
                 in the commission of another serious offence.


           (3)   The offence was committed with the intention to  create  a
                 fear psychosis in the public at large and was committed  in
                 a public place by a weapon or device which clearly could be
                 hazardous to the life of more than one person.


           (4)   The offence of murder was committed  for  ransom  or  like
                 offences to receive money or monetary benefits.


           (5)   Hired killings.


           (6)   The offence was committed outrageously for want only while
                 involving inhumane treatment and torture to the victim.


           (7)   The offence was committed by  a  person  while  in  lawful
                 custody.


           (8)   The murder or the  offence  was  committed  to  prevent  a
                 person lawfully  carrying  out  his  duty  like  arrest  or
                 custody in a place of  lawful  confinement  of  himself  or
                 another. For instance, murder is of a person who had  acted
                 in lawful discharge of his duty under Section 43 Cr.P.C.


           (9)   When the crime is enormous in proportion  like  making  an
                 attempt of murder of the entire  family  or  members  of  a
                 particular community.


           (10)  When the victim is innocent, helpless or a  person  relies
                 upon the trust of relationship and  social  norms,  like  a
                 child, helpless woman, a daughter or a niece staying with a
                 father/uncle and is inflicted with  the  crime  by  such  a
                 trusted person.


           (11)  When murder is committed  for  a  motive  which  evidences
                 total depravity and meanness.


           (12)  When there is a cold blooded murder without provocation.


           (13)  The crime is committed  so  brutally  that  it  pricks  or
                 shocks not  only  the  judicial  conscience  but  even  the
                 conscience of the society.


           Mitigating Circumstances:


           (1)   The manner  and  circumstances  in  and  under  which  the
                 offence was  committed,  for  example,  extreme  mental  or
                 emotional   disturbance   or   extreme    provocation    in
                 contradistinction to all these situations in normal course.


           (2)   The age of the accused is a relevant consideration but not
                 a determinative factor by itself.


           (3)   The chances of the accused of not indulging in  commission
                 of the crime again and the probability of the accused being
                 reformed and rehabilitated.


           (4)   The condition of the accused shows that  he  was  mentally
                 defective  and  the  defect  impaired   his   capacity   to
                 appreciate the circumstances of his criminal conduct.


           (5)   The circumstances which, in normal course of  life,  would
                 render such a behaviour possible and could have the  effect
                 of giving rise to mental imbalance in that given  situation
                 like persistent harassment or, in fact, leading to  such  a
                 peak  of  human  behaviour   that,   in   the   facts   and
                 circumstances of the case, the accused believed that he was
                 morally justified in committing the offence.


           (6)   Where the Court upon proper appreciation of evidence is of
                 the view that the crime was not committed in a  preordained
                 manner and  that  the  death  resulted  in  the  course  of
                 commission  of  another  crime  and  that   there   was   a
                 possibility of it being construed as  consequences  to  the
                 commission of the primary crime.


           (7)   Where it is absolutely unsafe to rely upon  the  testimony
                 of a sole eye-witness though prosecution has  brought  home
                 the guilt of the accused.


      77.   While determining the questions relateable to sentencing policy,
           the Court has to follow certain principles and those  principles
           are the loadstar besides the above considerations in  imposition
           or otherwise of the death sentence.


           Principles:


           (1)   The Court has to apply the test to determine,  if  it  was
                 the 'rarest  of  rare'  case  for  imposition  of  a  death
                 sentence.


           (2)   In the opinion of  the  Court,  imposition  of  any  other
                 punishment, i.e., life  imprisonment  would  be  completely
                 inadequate and would not meet the ends of justice.


           (3)   Life imprisonment is the rule and  death  sentence  is  an
                 exception.


           (4)   The option to impose sentence  of  imprisonment  for  life
                 cannot be cautiously exercised having regard to the  nature
                 and  circumstances  of   the   crime   and   all   relevant
                 considerations.


           (5)   The method (planned or otherwise) and the  manner  (extent
                 of brutality and inhumanity, etc.) in which the  crime  was
                 committed and the circumstances leading  to  commission  of
                 such heinous crime.


      78.   Stated broadly,  these  are  the  accepted  indicators  for  the
           exercise of judicial discretion but it is always  preferred  not
           to fetter the judicial discretion  by  attempting  to  make  the
           excessive enumeration, in one way or another.  In  other  words,
           these are the considerations which may collectively or otherwise
           weigh  in  the  mind  of  the  Court,   while   exercising   its
           jurisdiction. It is difficult to state it as an  absolute  rule.
           Every case has to be decided on its  own  merits.  The  judicial
           pronouncements, can only state the precepts that may govern  the
           exercise of judicial discretion to a limited extent. Justice may
           be done on the facts of each case. These are the  factors  which
           the Court may consider in its endeavour to do  complete  justice
           between the parties.


      79.   The Court then would draw a  balance-sheet  of  aggravating  and
           mitigating circumstances. Both aspects have to  be  given  their
           respective weightage. The Court has to strike a balance  between
           the two and see towards which side the scale/balance of  justice
           tilts. The principle of proportion between  the  crime  and  the
           punishment is the principle of 'just deserts' that serves as the
           foundation of every criminal sentence that  is  justifiable.  In
           other words, the 'doctrine of proportionality'  has  a  valuable
           application to the sentencing policy under the  Indian  criminal
           jurisprudence. Thus, the court will not  only  have  to  examine
           what is just but also as to what the accused deserves keeping in
           view the impact on the society at large.


      80.   Every punishment imposed is bound to have its effect not only on
           the accused alone, but also on the society as a whole. Thus, the
           Courts should  consider  retributive  and  deterrent  aspect  of
           punishment while imposing the extreme punishment of death.


      81.   Wherever, the offence which is committed, manner in which it  is
           committed, its attendant circumstances and the motive and status
           of the victim, undoubtedly brings the case within the  ambit  of
           'rarest of rare' cases and the Court finds that  the  imposition
           of  life  imprisonment  would  be   inflicting   of   inadequate
           punishment, the Court may award  death  penalty.  Wherever,  the
           case falls in any of the exceptions  to  the  'rarest  of  rare'
           cases, the Court may  exercise  its  judicial  discretion  while
           imposing life imprisonment in place of death sentence.”


Last of all, reliance was placed on the judgment rendered by this  Court  in
Brajendra Singh Vs. State of Madhya Pradesh,  (2012)  4  SCC  289,  wherein,
this Court having followed the decision rendered in  Ramnaresh  &  Ors.  Vs.
State of Chhattisgarh (cited supra), further held as under:-

      “38.  First and the foremost, this  Court  has  not  only  to  examine
           whether the instant case falls under the category of 'rarest  of
           rare' cases but also whether any other  sentence,  except  death
           penalty, would be inadequate in the facts and  circumstances  of
           the present case.


      39.   We have already held the Appellant guilty of  an  offence  under
           Section 302, Indian Penal Code for committing the murder of  his
           three children and the wife. All this happened in  the  spur  of
           moment, but, of course, the incident must have continued  for  a
           while, during which period the deceased  Aradhna  received  burn
           injuries as well as the fatal injury  on  the  throat.  All  the
           three children received injuries with a knife similar to that of
           the deceased Aradhna.  But  one  circumstance  which  cannot  be
           ignored by this Court is that  the  prosecution  witnesses  have
           clearly stated that there was  a  rift  between  the  couple  on
           account of her talking to Liladhar Tiwari, the neighbour,  PW10.
           Even if some credence is given to  the  statement  made  by  the
           accused under Section 313 Cr.P.C. wherein he stated that he  had
           seen the deceased and PW10 in a  compromising  position  in  the
           house  of  PW10,  it  also  supports  the  allegation   of   the
           prosecution that there was rift between the husband and wife  on
           account of PW10. It is also clearly exhibited in the FIR  (P-27)
           that the accused had forbidden his wife from  talking  to  PW10,
           which despite such warning she persisted with and, therefore, he
           had committed the murder of her wife along with the children.”


30.   We are one with the learned counsel for the accused-appellant, on  the
parameters prescribed by this Court,  for  inflicting  the  death  sentence.
Rather than deliberating upon the matter in any  further  detail,  we  would
venture to apply the parameters laid down in the judgments  relied  upon  by
the learned counsel for the accused-appellant, to determine whether  or  not
life imprisonment  or  in  the  alternative  the  death  penalty,  would  be
justified in the facts and circumstances of the present case.  We may  first
refer to the aggravating circumstances as under:-

      (i)   The accused-appellant has been found guilty of the offence under
           Section 364A of the Indian Penal Code.  Section  364A  is  being
           extracted hereunder:-
                 “364A.      Kidnapping for ransom, etc.—Whoever kidnaps  or
                        abducts any person or keeps a  person  in  detention
                        after such kidnapping or abduction and threatens  to
                        cause death or  hurt  to  such  person,  or  by  his
                        conduct gives rise to a reasonable apprehension that
                        such person may be put to death or hurt,  or  causes
                        hurt or death to such person in order to compel  the
                        Government or any  foreign  State  or  international
                        inter-governmental organization or any other  person
                        to do or abstain from doing any  act  or  to  pay  a
                        ransom,  shall  be   punishable   with   death,   or
                        imprisonment for life, and shall also be  liable  to
                        fine.”

           A perusal of the aforesaid provision  leaves  no  room  for  any
           doubt, that the offence of kidnapping for ransom accompanied  by
           a threat to cause  death  contemplates  punishment  with  death.
           Therefore, even without an accused actually having committed the
           murder of the individual kidnapped  for  ransom,  the  provision
           contemplates the death penalty.  Insofar as the present case  is
           concerned, there is no doubt,  that  the  accused-appellant  has
           been found to have kidnapped Suresh for  ransom,  and  has  also
           actually  committed  his  murder.   In  the  instant   situation
           therefore, the guilt of  the  accused-appellant  (under  Section
           364A of the Indian Penal Code) must be considered to be  of  the
           gravest nature, justifying the  harshest  punishment  prescribed
           for the offence.

      (ii)  The accused-appellant has also been found guilty of the  offence
           of murder under Section 302 of the Indian Penal  Code.   Section
           302 of the Indian Penal Code also contemplates the punishment of
           death for the offence of murder.   It  is,  therefore  apparent,
           that the accused-appellant is guilty of  two  heinous  offences,
           which independently  of  one  another,  provide  for  the  death
           penalty.

      (iii) The accused caused the murder of child of 7  years.   The  facts
           and circumstances of the case do not depict any previous  enmity
           between the parties.  There is no grave and sudden  provocation,
           which had compelled the accused to take the life of an  innocent
           child.  The murder of a child, in such circumstances makes  this
           a case of extreme culpability.

      (iv)  Kidnapping of a child was committed with the motive of  carrying
           home a ransom.  On account of the non-payment of ransom, a minor
           child’s murder was committed.  This fact demonstrates  that  the
           accused had no value for human life.  The  instant  circumstance
           demonstrates extreme  mental  perversion  not  worthy  of  human
           condonation.

      (v)   The manner in which the child was murdered, and the approach and
           method adopted by the accused, disclose the traits of outrageous
           criminality in the behaviour of  the  accused.   The  child  was
           first strangulated to death, the dead body of the child was then
           tied in a gunny bag, and finally the gunny bag was thrown into a
           water tank.  All this was  done,  in  a  well  thought  out  and
           planned manner.  This approach of the accused reveals  a  brutal
           mindset of the highest order.

      (vi)  All the aforesaid aggravating circumstances  are  liable  to  be
           considered in the background of the fact,  that  the  child  was
           known to the accused-appellant.   In   the  examination  of  the
           accused under Section 313 of the Code of Criminal Procedure, the
           accused acknowledged, that he used to see the child whenever the
           child  was  taken  by  his  mother  to   her   native   village.
           Additionally, it is acknowledged  in  the  pleadings,  that  the
           accused had developed an acquaintance with the child,  when  his
           mother used to visit  her  native  place  along  with  her  son.
           Murder was therefore committed, not of  a  stranger,  but  of  a
           child with whom the accused was acquainted.  This conduct of the
           accused-appellant, places the facts of this case in the abnormal
           and heinous category.

      (vii) The choice of kidnapping the particular child  for  ransom,  was
           well planned and consciously  motivated.   The  parents  of  the
           deceased had four  children  –  three  daughters  and  one  son.
           Kidnapping the only male child was to induce maximum fear in the
           mind of his parents.  Purposefully killing the sole male  child,
           has grave repercussions for the parents of the deceased.   Agony
           for parents for the loss of their only  male  child,  who  would
           have carried further the family lineage, and is expected to  see
           them through their old age,  is  unfathomable.   Extreme  misery
           caused to the aggrieved party, certainly adds to the aggravating
           circumstances.
31.   As against the aforesaid aggravating  circumstances,  learned  counsel
for the accused-appellant could not point to us  even  a  single  mitigating
circumstance.  Thus viewed, even on the parameters laid down by this  Court,
in the decisions relied  upon  by  the  learned  counsel  for  the  accused-
appellant, we have no choice, but to affirm the death penalty  imposed  upon
the accused-appellant by the High Court.  In fact, we  have  to  record  the
aforesaid conclusion in view of the  judgment  rendered  by  this  Court  in
Vikram Singh & Ors. Vs. State of Punjab, (2010) 3 SCC  56,  wherein  in  the
like circumstances (certainly, the  circumstances  herein  are  much  graver
than the ones in the said case), this Court had  upheld  the  death  penalty
awarded by the High Court.

32.   In view  of  the  above,  we  find  no  justification  whatsoever,  in
interfering with the impugned order of the High Court, either on  merits  or
on the quantum of punishment.

33.   Dismissed.

                                           …………………………….J.
                                            (P. Sathasivam)



                                            …………………………….J.
                                            (Jagdish Singh Khehar)
New Delhi;
February 5, 2013.



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