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Sunday, February 23, 2014

Death sentence - converted to imprisonment - A gruesome murder of a minor boy aged 10 years after subjecting him to carnal intercourse and then strangulating him to death - Sessions court and High court awarded and confirmed Death sentence - Apex court awarded the incarceration of a further period of thirty years, without remission, in addition to the sentence already undergone, will be an adequate punishment in the facts and circumstances of the case, rather than death sentence. = Anil @ Anthony Arikswamy Joseph .. Appellant Versus State of Maharashtra .. Respondent = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41241

      Death sentence - converted to imprisonment - A gruesome murder  of  a  minor  boy aged 10 years  after  subjecting  him  to  carnal  intercourse  and  then strangulating him to death  - Sessions court and High court awarded and confirmed Death sentence - Apex court awarded the incarceration of a  further  period  of thirty years,  without  remission,  in  addition  to  the  sentence  already undergone, will be an adequate punishment in the facts and circumstances  of
the case, rather than death sentence. =
  The  Principal  District  and  Sessions  Judge,  Nagpur  in
   Sessions Trial No.167 of 2008 convicted the  Appellant  for  the  offence
   punishable under Section 302 IPC and sentenced  him  to  death  =
The High Court held that  the  young  boy
of tender age was subjected to unnatural sex for  the  satisfaction  of  the
lust of the accused which, according to the  High  Court,  falls  under  the
category of rarest of the rare cases.  The High Court, therefore,  dismissed
the appeal and confirmed the death sentence,  against  which  these  appeals
have been preferred.=
PW8 and PW9 heard the cries of the minor boy during  the  midnight  of
12.01.2008 and after going through their evidence they  reverberate  in  our
ears.  
Injury Nos.1, 3 to 5 were inflicted by hard and blunt  object,  while
injury no.2 was caused by sharp cutting edge and injury no.6 was  caused  by
hard and rash object, over and above, the offence  under  Section  377  also
stood proved.  
The murder was committed in an extremely  brutal,  grotesque,
diabolical and  dastardly  manner  and  the  accused  was  in  a  dominating
position and the victim was an innocent boy, the only  son  of  his  mother.
Accused was aged 35 years when the crime was committed  that  is  he  was  a
fully matured person.  
Life of a boy, the only son of PW7, the  mother,  was
taken away in a gruesome and barbaric  manner  which  pricks  not  only  the
judicial conscience but also the conscience of the society.

34.   Legislative policy  is  discernible  from  Section  235(2)  read  with
Section  354(3)  of  the  Cr.P.C.,  that  when   culpability   assumes   the
proportions of depravity, the Court has to give special reasons  within  the
meaning of Section 354(3) for  imposition  of  death  sentence.  
Legislative
policy is that when special reasons do exist, as in the  instant  case,  the
Court has  to  discharge  its  constitutional  obligations  and  honour  the
legislative policy by awarding appropriate sentence, that  is  the  will  of
the people.  
We are of the view that incarceration of a  further  period  of
thirty years,  without  remission,  in  addition  to  the  sentence  already
undergone, will be an adequate punishment in the facts and circumstances  of
the case, rather than death sentence. Ordered accordingly.

35.   The appeals are, accordingly, disposed of.


2014(Feb.Part) judis.nic.in/supremecourt/filename=41241
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN


                                                         REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                    CRIMINAL APPEAL NOS.1419-1420 OF 2012


Anil @ Anthony Arikswamy Joseph         .. Appellant

                                   Versus

State of Maharashtra                    .. Respondent


                               J U D G M E N T


K. S. RADHAKRISHNAN, J.


1. We are, in this case, concerned with a gruesome murder  of  a  minor  boy
   aged 10 years  after  subjecting  him  to  carnal  intercourse  and  then
   strangulating him to death.

2. The accused, Anil @ Anthony Arikswamy  Joseph,  was  charge-sheeted  with
   offences punishable under Sections 302, 377 and 201 of the  Indian  Penal
   Code (IPC).   The  Principal  District  and  Sessions  Judge,  Nagpur  in
   Sessions Trial No.167 of 2008 convicted the  Appellant  for  the  offence
   punishable under Section 302 IPC and sentenced  him  to  death  and  also
   sentenced to pay a fine of Rs.10,000/- and in default to suffer  rigorous
   imprisonment for one year and for the offence  punishable  under  Section
   377 IPC, he was sentenced to suffer rigorous imprisonment  for  10  years
   and to pay a fine  of  Rs.1,000/-  and  in  default  to  suffer  rigorous
   imprisonment for a period  of  three  months.   The  Appellant  was  also
   convicted for the offence  punishable  under  Section  201  IPC  and  was
   sentenced to suffer rigorous imprisonment for 3 years and to pay  a  fine
   of Rs.1,000/- and in default to suffer rigorous imprisonment for a period
   of three months.   Substantive  sentences,  it  was  ordered,  would  run
   concurrently.   Since the accused was sentenced to death,  reference  was
   sent to the High Court for confirmation of death sentence.   The  accused
   also filed Criminal Appeal No.17 of 2011.

3. The Appeal and the criminal confirmation case then came  up  for  hearing
   before a Division Bench of Nagpur Bench  of  the  Bombay  High  Court  on
   10.08.2011 and the Bench noticed that the DNA profile  blood  sample  and
   semen sample were not brought before the trial court.  
Further,  it  was
   noticed that PW5, the Assistant Chemical  Analyzer  of  Forensic  Science
   Laboratory, Mumbai,  had  given  detailed  evidence  in  respect  of  the
   contents of Ext.35.  
She stated that she had occasion to compare  DNA  of
   blood sample of the accused with Ext.1 (semen stains on  half  pant)  and
   Ext.5 (anal smear of the deceased) and the  DNA  samples  were  matching.
   PW5 submitted Ext. 38 report.  Ext. 38, it was noticed, did not  disclose
   any comparison, as stated by PW5,  which  was  done  in  FSL  at  Mumbai.
   Considering the serious nature of the offence and  considering  the  fact
   that the whole case against  the  accused  was  based  on  circumstantial
   evidence, the Court felt that it would be necessary  to  recall  PW5  and
   record her further examination-in-chief with reference to her  report  in
   respect of the DNA profile of the accused, that too with reference to her
   evidence at paragraph No.3 of her examination–in-chief on 25.09.2009.

4.    The Bench,  therefore  remitted  the  case  to  the  trial  court  for
production of additional evidence.  
The  operative  portion  of  the  order
reads as under :
      (i)   The prayer for production of copies  of  Judgments  in  Sessions
           Trial No.118 of 1997 and Sessions Trial No.39 of 2002  does  not
           survive as it is not pressed.


      (ii)   The  prosecution  shall  move  the  learned  Trial  Court   for
           production of the additional evidence.


      (iii) The prosecution shall recall P.W.5 and shall re-examine the said
           witness further with referenced to  the  DNA  profile  of  blood
           sample of the accused and the comparison thereof with  Exs.1,  4
           and 5 of the report Ex.35.


      (iv)  The learned Trial  Court  shall  be  at  liberty  to  allow  the
           prosecution to produce any other documents  connected  with  the
           evidence or concerning the collection of samples,  carrying  the
           same to F.S.L. and analysis thereof.


      (v)   The learned Trial Court shall also be at liberty  to  allow  the
           prosecution to  examine  any  other  witness  pertaining  to  or
           concerning with the collection of samples, carrying the same  to
           F.S.L. and analysis thereof.


      (vi)  The prosecutions  shall  recall  P.W.10  and  P.W.14  and  shall
           examine them further with reference to forwarding samples Exs.1,
           4 and 5 of  Ex.35  and  blood  and  semen  samples  of  accused-
           appellant.


      (vii) Needless to state that the accused-appellant shall be  given  an
           opportunity to cross-examine the  witnesses  recalled  or  fresh
           witnesses examined following this order.


      (viii)      It is made clear that the learned trial Court shall be  at
           liberty to pass any incidental order to achieve the  purpose  of
           this order, but shall be careful to  see  that  the  prosecution
           does not misuse this  opportunity  of  recording  of  additional
           evidence to introduce any other evidence, which is  not  subject
           matter of the present order.


      (ix)  The original record and proceedings be sent back to the  learned
           Sessions Judge, Nagpur.


      (x)   The learned Sessions Judge shall comply with this  order  within
           30 days from the date of receipt of this order and shall certify
           the additional evidence to this Court immediately thereof.


            Application accordingly stands disposed of.”


5.    The Sessions  Court,  after  recording  the  additional  evidence  and
recalling and further examining the witnesses,  as  ordered,  forwarded  the
same to the High Court.  The appeal was then heard by a  Division  Bench  of
the High Court on 10.10.2011  along  with  the  confirmation  case  and  the
additional evidence recorded. The High Court, after  appreciating  the  oral
and documentary evidence and arguments advanced by  the  counsel  on  either
side, confirmed the death sentence noticing the brutal and grotesque  manner
in which the crime was committed.
The High Court held that  the  young  boy
of tender age was subjected to unnatural sex for  the  satisfaction  of  the
lust of the accused which, according to the  High  Court,  falls  under  the
category of rarest of the rare cases.  The High Court, therefore,  dismissed
the appeal and confirmed the death sentence,  against  which  these  appeals
have been preferred.

6.     Shri  P.C.  Aggarwala,  learned  senior  counsel  appearing  for  the
Appellant, submitted that the prosecution  has  failed  to  prove  the  case
beyond reasonable doubt and all the circumstances put  together  would  lead
to only one inference that  the  accused  is  not  guilty  of  the  offences
charged against him.    Learned  senior  counsel  also  submitted  that  the
prosecution has not succeeded in establishing the last seen theory  and  the
evidence adduced by PW2, PW3, PW8 and  PW9  would  not  establish  that  the
victim was last  seen  with  the  accused.    Learned  senior  counsel  also
submitted that the prosecution could not establish that the articles  stated
to have been recovered from the house  of  the  accused  were  that  of  the
deceased. The evidence of PW1 and PW6,  it  was  pointed  out,  was  totally
unworthy and ought to have been discarded.    Learned  senior  counsel  also
submitted that  the  evidence  in  respect  of  DNA  Profile  is  completely
manufactured to rope in the accused and the evidence of  PW10  and  PW14  in
that respect cannot be believed.

7.    Shri Shankar Chillage, learned counsel appearing for the  prosecution,
on  the  other  hand,  submitted  that  the  Courts  below  have   correctly
appreciated the evidence of PW2, PW3, PW8 and  PW9  and  have  come  to  the
conclusion that the victim was last seen in the company of the  accused  and
all the principles laid down by  this  Court  to  establish  the  last  seen
theory have been completely  satisfied,  so  far  as  the  present  case  is
concerned.  Learned counsel also submitted that the  evidences  of  PW1  and
PW6 have been correctly appreciated by the Courts below and the  prosecution
has succeeded in proving that the articles recovered from the possession  of
the accused were that of the  deceased.    Learned  counsel  also  submitted
that the Courts below have correctly appreciated the evidence  of  PW5,  the
Assistant Chemical Analyser, who conducted the DNA  test  and  deposed  that
she obtained the blood sample of the accused and matched  the  profile  from
the blood profile, which was sent as Ex.1 i.e. semen stain cutting from  the
half pant and submitted the Report Exh.38.   Learned counsel submitted  that
the evidence of PW5 has to be appreciated in the light of  the  evidence  of
PW12, PW13, PW15 and  PW16,  which  would  clearly  indicate  that  the  DNA
profile obtained from the anal  smear  of  the  deceased  matched  with  the
accused.  Learned  counsel  submitted  that  the  DNA  profile  conclusively
indicates that the  accused  has  committed  the  offence  punishable  under
Section 377 IPC.  Learned counsel also submitted that  the  High  Court  has
rightly held that the case falls under the rarest of the rare  category  and
correctly awarded the death sentence.

8.    PW7, Shobha Vaidya, mother  of  the  deceased,  a  maid  servant,  was
running here and there anxiously for few days to  know  the  whereabouts  of
her missing son aged 10 years.  The boy had gone to the school on  10.1.2008
and normally he used to return in the evening, but on that day  he  did  not
return.   Since whereabouts of the boy were not  known  for  few  days,  she
lodged a complaint on 15.1.2008 at about 5.00 p.m.  before  PW10,  the  Sub-
Inspector of Police, attached to Crime Branch, Nagpur,  who  was  posted  at
Sadar Police Station.   Meanwhile, PW2, Mary,  a  lady,  residing  near  the
house of the accused, informed PW10 that the dead body of a  boy  aged  9-10
years was seen floating in a well at Juna Kabrastan  (old  cemetery).   PW10
then proceeded to the spot and with the assistance of fire brigade took  the
dead body from the well and sent the same to Mayo  Hospital  for  conducting
post-mortem  examination.    After  getting  the  post-mortem  report,  PW10
lodged the report and registered the offence under  Sections  377,  302  and
201 IPC.

9.    PW14, Police Sub-Inspector  attached  to  Sadar  Police  Station,  was
entrusted with the investigation.   By that time, the accused  was  arrested
on 17.1.2008 and, on his  disclosure,  various  articles  belonging  to  the
deceased were recovered from the house of the accused and they  were  seized
in the presence of Panchas.   School bag of the deceased,  which  was  black
in colour and had pink stripes, concealed in a box was recovered.   Bag  was
opened in the presence of panchas and it was found to contain a Bal  Bharati
textbook, Mathematics and English books, two note-books, all bore  the  name
of the deceased.  Further, a Barmuda pant, belonging to the  accused  and  a
jeans belonging to the deceased were recovered on 17.01.2008.   The  accused
was referred for medical examination and  the  blood  sample  was  taken  on
18.01.2008.  Samples of blood semen and  nail  clippings  were  taken  under
Ext.17.  On the disclosure of the accused, the shirt worn by him, which  was
concealed near a tree under a stone, was recovered  on  22.01.2008.   Seized
articles were referred to the Chemical Analysis at Nagpur.  The  reports  of
the Analyzer are at Exts.91 and 92, while the DNA  reports  are  at  Exts.35
and 38.  After completing the investigation, the police  charge-sheeted  the
accused for offences punishable under Sections 302, 377  and  201  IPC.   On
the side of the  prosecution,  fourteen  witnesses  were  examined  and  the
documentary evidence were brought on record and on the side of the  defence,
none was examined.

10.   PW2, Mary, who runs a tea stall in front of  the  Income  Tax  Office,
which is near the old cemetery, was examined by  the  prosecution  to  prove
that the boy was seen in the company of the accused.  She  stated  that  she
knows the accused who is residing just in front  of  her  house.    She  has
also deposed that on 13.1.2008,  the  accused  had  come  to  her  shop  and
demanded Gutka, which she did not give.   Later, a boy  of  about  11  years
was sent from the house of accused, who purchased few items  from  her  shop
and returned to the same house.  PW3, a neighbour of the  accused,  is  also
residing near the old cemetery.   She has also deposed  that  she  had  seen
the boy with the accused on 10.01.2008 and 11.01.2008.   PW8, the sister  of
the accused, who was also residing with the accused  in  his  house,  stated
that she saw a boy aged about 10 to 12 years in the company of the  accused,
during the above-mentioned period and on the fateful day, that  is,  in  the
mid-night of 12.01.2008 and 13.01.2008, she heard the cries of the boy  from
the room of the accused.   PW9, a neighbour of  the  accused,  also  noticed
one boy aged 10 years accompanying the accused and that, on the midnight  of
12.01.2008, she heard the cries of a small boy emanated  from  the  side  of
the house of the accused.

11.   We have gone through the evidence of PW2, PW3,  PW8  and  PW9  in  its
entirety and, in our view, they are trustworthy and reliable.  In our  view,
the prosecution has succeeded in establishing  its  case  beyond  reasonable
doubt that the deceased was last seen in the  company  of  the  accused  and
that the findings recorded by the trial  Court  and  affirmed  by  the  High
Court call for no interference.

12.   PW1 and PW6, Panchas of Ex. 13 and Ex.40 respectively,  were  examined
by the prosecution to prove the recovery of the pant as well as  school  bag
of the deceased.   School bag was recovered from  a  box  which  was  placed
beneath the cot in the  house  of  the  accused.   Seizure  panchanams  vide
Exts.15 and 19 give the details of the articles seized at  the  instance  of
the accused.   The school bag contained books and note books which bore  the
name of the deceased.   The  pant  and  the  school  bag  along  with  books
contained therein would clearly indicate that the boy was in the company  of
the accused  on  the  fateful  day.    Consequently,  the  presence  of  the
deceased in the room of the accused has been  clearly  established  and  the
finding recorded by the trial Court as  well  as  the  High  Court  on  that
ground also calls for no interference.

13.   PW4 is the doctor who conducted the post-mortem  examination  of  dead
body of  the  deceased.   The  post-mortem  report  (Exh.33)  indicates  the
following external and internal injuries on the dead body of the deceased :
      “External Injuries


        1) Anus dilated and appears patalous, perional  margin  and  mucosa
           appear inflamed, no evidence of tear or foreign body.
        2) Position of Limbus straight.
        3) Multiple contused abrasions (6 in numbers) present over forehead
           of size varying from 1.5 cm x 1.5 cm to 2 cm x 2 cm.
        4) Incised wound present over right  lateral  forehead  oblique  of
           size 1.5 cm x 0.5 cm x bone deep.
        5) Contused abrasion at right preauricular area of size 2  cm  x  2
           cm.
        6) Contused abrasion at right face, 1.5 cm below the lower eye  lid
           of size 2 cm x 2.5 cm.
        7) Centurion present at chin of size 2 cm x 2.5 cm.
        8) Graze abrasion present at right arm, anteri medial aspect, lower
           1/3rd of size  3.5  cm  x  5  cm  directed  downward  and  right
           laterally.


      Internal Injuries


      (1)   Right frontal region of size 4 cm x 5 cm x 0.5 cm.
      (2)   Right parieto-temporal region of size 5 cm x 4 cm x 0.5 cm.
      (3)   Left occipital region of size 4 cm x 4 cm x 0.5 cm.
           Brain, party reddish tinged appearance  to  the  right  parieto-
           temporal region.”


14.   PW4 has stated that all the internal injuries correspond  to  external
injuries and they were ante-mortem and were ordinarily sufficient  to  cause
death.   PW4  has  also  opined  that  there  was  possibility   of   carnal
intercourse with the deceased, though the cause of death  was  head  injury.
PW4 also stated that he had seen the DNA report at Exh.35  and  stated  that
the report indicates that anal smear  of  the  deceased  gave  a  mixed  DNA
profile which matches with semen on half pant and blood of victim.  PW4  was
also shown another report of DNA,  which  was  in  respect  of  the  control
sample blood of the accused and stated that DNA  profile  of  blood  matches
with DNA profile of semen found in the anus of the  deceased.   Further,  he
has also stated that injury nos.1, 3, 4 and 5  were  possible  by  hard  and
blunt object while injury no.2 was caused by sharp cutting edge  and  injury
no.6 was caused by hard and rough object.   Facts clearly indicate that  the
fatal injuries were caused to  silence  him,  after  satisfying  lust  in  a
barbaric manner.  Attempts were made to  destroy  the  evidence  which  were
also proved.  PW4 also categorically stated in respect of injury  no.1  that
it should read as anus dilated and appears patalous,  perianal  margin  anal
mucosa appear inflamed, though no evidence of tear or foreign body.

15.   PW5, the Assistant Chemical Analyzer, Forensic  Science  Lab,  Kalina,
Mumbai stated that she had received the parcels from the  Regional  Forensic
Science Laboratory, Nagpur on 24.1.2008 and she started the analysis on  the
same day.  She stated that Exh.1 is a DNA profile of the accused  and  Exh.5
anal smear is of the deceased, which gave mixed  profile.   Further,  it  is
stated that the profile obtained from Exh.1 semen stains  matches  with  the
profile obtained from Exh.5 anal smear and also  Exh.4  blood  stains  gauze
collected from the deceased.  She stated that she conducted two  tests,  one
nuclear Short Tandem Repeats (STR) and Y Short Tandem Repeats (YSTR).   PW5,
in her report, stated that she obtained blood samples  of  the  accused  and
matched the profile obtained from that blood with the profile of Exhs.1  and
5 and that the profiles were matching.    PW5,  as  already  indicated,  was
recalled after the matter was  remitted  to  the  trial  Court  for  getting
further evidence and she repeated that she had analyzed the blood sample  of
the accused for DNA profiling and it matched  with  the  sample,  which  was
sent as Exh.1 i.e. semen stain cutting from the half pant.  She  accordingly
issued a report as Exh.38.

16.   PW12, the Medical  Officer  attached  to  Mayo  Hospital,  Nagpur  was
examined to prove that he had received  the  requisition  for  taking  blood
samples, pubic hair, nails and semen of the  accused  under  requisition  at
Exh.75, which was handed over to  the  police.   PW15  and  PW16  were  also
examined to establish the procedure followed for taking the  parcel  to  the
Chemical Analyser for DNA test as well  as  for  collecting  blood  samples,
etc.   On going through the evidence of PW4 and PW5 read  with  evidence  of
PW12, PW15 and PW16, we are of the view that the DNA test  was  successfully
conducted and that the anal smear matched with  the  DNA  profile  of  semen
stains which were found on the pant of the accused  and  were  matched  with
the control blood sample of the accused as  well  as  blood  sample  of  the
deceased.

17.   Deoxyribonucleic acid, or DNA, is a molecule that encodes the  genetic
information in all living organisms.  DNA genotype can be obtained from  any
biological material such as bone, blood, semen,  saliva,  hair,  skin,  etc.
 Now, for several years, DNA profile has also shown a tremendous  impact  on
forensic investigation.   Generally, when DNA profile of a sample  found  at
the scene of  crime  matches  with  DNA  profile  of  the  suspect,  it  can
generally be concluded that both samples have the  same  biological  origin.
DNA profile is valid and reliable,  but  variance  in  a  particular  result
depends on the quality control and quality procedure in the laboratory.

18.   PW5, Dr. Varsha Rathod, stated that since  1994  she  was  working  as
Assistant Chemical Analyzer and has analyzed thousands of samples  including
DNA test.  She has stated that she had conducted  two  tests,  one  STR  and
second YSTR.  Both the tests are scientifically proven  and  the  competence
of the doctor who conducted the test is also not questioned.   Consequently,
the DNA test report could be safely accepted, which shows that the  deceased
boy was subjected to unnatural sex and offence under Section  377  has  been
clearly made out.

19.   Section  377  is  mainly  confined  to  act  of  sodomy,  buggery  and
bestiality, which intends to punish a man  when  he  indulges  in  a  carnal
intercourse against the order of nature with a man or, in the  same  manner,
with a woman.  Sodomy  is  termed  as  Pederasty  when  the  intercourse  is
between a man and a young boy, that is, when the passive agent  is  a  young
boy.  Modi’s Medical Jurisprudence and Toxicology state that  if  a  passive
agent is not accustomed to sodomy, abrasions on the skin near  the  anus  is
likely to appear and lesions will be most marked in children while they  may
be almost absent in adults, when there is no resistance to the anal  coitus.
Galster’s Medical Jurisprudence and Toxicology say that lesions like  recent
lacerations, bruising, inflammation of the mucous membrane could be  noticed
in passive agent. Article 377 postulates penetration by the penis  into  the
anus and the merest penetration suffices to establish the offence.  PW4  has
clearly noticed that “Anus dilated and  appears  patalous,  perional  margin
and mucosa appear inflamed”.  DNA test also proved that anal  smear  matched
with the DNA profile of smear stains, which also matched  with  the  control
sample of the accused.   Consent  of  a  passive  agent  is  not  at  all  a
defence, but, in the instant case, though a suggestion  was  made  that  the
boy had not resisted, being in the company of the accused for few  days,  is
of no consequence, he being a minor.  Prosecution  has  clearly  established
that, after subjecting the boy to Pederasty, he was strangulated  to  death.


20.   PW8 has categorically stated that she had heard the cries of  the  boy
during mid-night and she could not sleep till the cries  subsided.   PW8  is
none other than the sister of the accused.  She heard the cries of  the  boy
coming from the room of the accused.  She is a trustworthy witness  and  has
no axe to grind against the accused.   PW9 has also stated that  she  wanted
to go to the direction in which  she  heard  the  cries,  however,  darkness
deterred her and others proceeding to the place of occurrence.  Cries  heard
were obviously in loud voice, which indicates that the accused had  indulged
in such a barbaric act and ultimately killed the boy  and  later  threw  the
dead body in the well situated near the premises  of  the  old  cemetery,  a
spot which was located behind  his  house.   The  Courts  below,  therefore,
concluded that the offence committed by the accused shows extreme  depravity
of mind and shows extreme  perversity  and,  therefore,  calls  for  extreme
punishment i.e. the accused be hanged by neck till death.   We  are  of  the
opinion that the case under Sections 302, 377 and 201 IPC has  been  clearly
made out.  The question is only with regard to the sentence and whether  the
present case falls under the category of rarest  of  rare  case,  warranting
capital punishment.

21.   In Shankar Kisanrao Khade v. State of Maharashtra (2013)  5  SCC  546,
we have dealt with the various  principles  to  be  applied  while  awarding
death sentence.   In that case, we have referred to the cases wherein  death
penalty was awarded by this Court for murder of minor  boys  and  girls  and
cases where death sentence had been commuted  in  the  cases  of  murder  of
minor boys and girls.  In Shankar  Kisanrao  Khade  (supra),  we  have  also
extensively referred to the principles laid down in Bachan  Singh  v.  State
of Punjab (1980) 2 SCC 684 and Machhi Singh v. State of Punjab (1983) 3  SCC
470 and the subsequent decisions.   Applying the tests laid down in  Shankar
Kisanrao Khade (supra), we are of the view that  in  the  instant  case  the
crime test and criminal test have been fully satisfied against the  accused.
  Still, we have to apply the  RR  test  and  examine  whether  the  society
abhors such crimes and whether such  crimes  shock  the  conscience  of  the
society and attract intense and extreme indignation of the community.

22.   We have no doubt in our mind that such types  of  crimes  preceded  by
Pederasty are extremely brutal, grotesque diabolical  and  revolting,  which
shock the moral fiber of the society, especially when the passive  agent  is
a minor.  Recently, this Court in Suresh Kumar Koushal and  Another  v.  Naz
Foundation and Others    (2014) 1 SCC 1 has  also  refused  to  strike  down
Section 377, even if such acts are indulged in  by  consenting  individuals.


23.   Accused is now around 42 years  of  age  and  when  he  committed  the
crime, he was about 35 years.     We have clearly found  that  there  is  no
mitigating  circumstance  favouring  the  accused.   Age  is  not  a  factor
favouring him.  By the age of 35, a person attains sufficient  maturity  and
can distinguish what is good or bad, and there is nothing to  show  that  he
was under any emotional or mental stress and the offence was committed  only
to satisfy his lust, in a perverted way.  Accused is not  the  only  son  of
his parents, but the boy was a minor, totally innocent and defenceless,  the
only son of PW7.  The mother, PW7, is a house maid and the  son  would  have
looked after her in her old age and also would  have  been  of  considerable
help to her.  Son was  snatched  in  a  barbaric  gruesome  manner  only  to
satisfy the perverted lust of the accused.  PW7, the mother had to  see  the
dead body of the son floating in the well.  PW8, the sister of  the  accused
and PW9, the neighbour, both ladies heard the  cries  of  the  helpless  boy
during mid-night but both were helpless.  PW8 could not go out of  her  room
since it was locked from outside.  PW9, a lady could not go to the house  of
the accused due to pitched darkness.

24.   In Shankar Kisanrao Khade (supra), this  Court  did  not  confirm  the
death sentence, even though the post-mortem spelt out the act of  sodomy  as
the prosecution had failed to chargesheet  the  accused  under  Section  377
IPC, which was commented upon by this Court.  But, so  far  as  the  present
case is concerned, the offences under Section 302 and 377  have  been  fully
established and both the crime test and the criminal test  have  been  fully
satisfied against the accused.  Now, we have to apply the RR Test.

25.   We may point out that apart  from  what  has  been  stated  in  Bachan
Singh’s case (supra) and Machhi Singh’s case (supra) this Court  in  various
cases like Om Prakash v. State of Haryana (1999) 3 SCC 19, State of U.P.  v.
Sattan (2009) 4 SCC 736, Santosh Kumar Satishbhushan  Bariyar  v.  State  of
Maharashtra (2009) 6 SCC 498, held that Court must state special reasons  to
impose death penalty, hence, the RR Test.

RR Test

26.   R-R Test, we  have  already  held  in  Shankar  Kisanrao  Khade’  case
(supra), depends upon the  perception  of  the  society  that  is  “society-
centric” and not “Judge-centric”, that is, whether the society will  approve
the awarding of death sentence to certain types of  crimes  or  not.   While
applying that test, the court has to  look  into  variety  of  factors  like
society’s abhorrence, extreme indignation and antipathy of certain types  of
crimes like  sexual  assault  and  murder  of  minor  girls,  intellectually
challenged minor girls, minors suffering from physical disability,  old  and
infirm women, etc.  R-R Test is found satisfied in  several  cases  by  this
Court like in Bantu v. State of U.P. (2008) 11 SCC 113, wherein  this  Court
affirmed the death sentence in a case where minor girl  of  five  years  was
raped and murdered.  This Court noticed that  the  victim  was  an  innocent
child and the murderer was in a dominating position, which the  Court  found
as a vital factor justifying the award of  capital  punishment.  Shivaji  v.
State of Maharashtra (2008) 15 SCC 269, was a case where  a  married  person
having three children, known to the family of  the  deceased,  ravished  the
life of a girl aged 9 years  and  strangulated  her  to  death,  this  Court
affirmed the death sentence awarded by the  High  Court.   Mohd.  Mannan  v.
State of Bihar (2011) 5 SCC 317, was a case where a minor girl aged 7  years
was kidnapped, raped and murdered by an accused aged  between  42-43  years.
This Court held that he would be a menace to society and would  continue  to
be so and could not be reformed and  hence  confirmed  the  death  sentence.
Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012) 4  SCC  37  was  a
case where a 3 year old child was raped and murdered by  an  accused  of  31
years old.  This Court noticed the brutal manner  in  which  the  crime  was
committed and the pain and agony undergone by the minor  girl.   This  Court
confirmed the death sentence.

27.   In Haresh Mohandas Rajput v. State of Maharashtra (2011)  12  SCC  56,
this Court opined that the death sentence, in a given case, can  be  awarded
where the victims are innocent children and helpless women, especially  when
the crime is  committed  in  a  most  cruel  and  inhuman  manner  which  is
extremely brutal, grotesque, diabolical and revolting.  Reference  may  also
be made to the Judgments of this Court in  Rabindra  Kumar  Pal  alias  Dara
Singh v. Republic of India (2011) 2 SCC 490, Surendra Koli v. State of  U.P.
and others (2011) 4 SCC 80 and Sudam @ Rahul  Kaniram  Jadhav  v.  State  of
Maharashtra (2011) 7 SCC 125.

28.   This Court in Mahesh v. State  of  Madhya  Pradesh  (1987)  3  SCC  80
deprecated the practice of taking  a  lenient  view  and  not  imposing  the
appropriate punishment observing that it will be a  mockery  of  justice  to
permit the accused to escape the extreme penalty  of  law  when  faced  with
such evidence and cruel acts. This Court  further  held  that  to  give  the
lesser punishment for the  appellants  would  be  to  render  the  justicing
system of this country suspect  and  the  common  man  will  lose  faith  in
courts. In such cases,  he  understands  and  appreciates  the  language  of
deterrence more than the reformative jargon.  In Bantu (supra),  this  Court
placing reliance on the Judgment in Sevaka Perumal v. State of  T.N.  (1991)
3 SCC 471 observed as follows:
      “Therefore, undue sympathy to impose inadequate sentence would do more
      harm to the justice system to undermine the public confidence  in  the
      efficacy of law, and society could not long endure under such  serious
      threats. It is, therefore, the duty of every  court  to  award  proper
      sentence having regard to the nature of the offence and the manner  in
      which it was executed or committed, etc.


         Thus, it is evident that criminal law requires strict adherence to
      the rule of proportionality in providing punishment according  to  the
      culpability of each kind of  criminal  conduct  keeping  in  mind  the
      effect of not awarding just punishment on the society.


           The “rarest of the rare case” comes when a convict  would  be  a
      menace and threat to the harmonious and peaceful  coexistence  of  the
      society. Where an accused does not act  on  any  spur  of  the  moment
      provocation and he indulged himself in a  deliberately  planned  crime
      and meticulously executed it, the  death  sentence  may  be  the  most
      appropriate punishment for such a ghastly crime.”


29.   We may indicate, unlike Shankar Kisanrao Khade’ case (supra), in  this
case offence under Section 377  IPC  has  been  fully  proved  so  also  the
offence under Section 302 IPC.  Indian society and  also  the  International
society abhor pederasty, an unnatural sex, i.e. carnal  intercourse  between
a man and a minor boy or a girl.  When the victim is  a  minor,  consent  is
not a defence, irrespective of the views expressed at  certain  quarters  on
consensual sex between adults.
Reformation and Rehabilitation

30.   Learned counsel for the accused submitted  that  the  accused  has  no
previous criminal history  and  would  not  be  a  menace  to  the  society.
Further, it  was  also  pointed  out  that  possibility  of  reformation  or
rehabilitation of the accused, who is aged 42 years,  cannot  be  ruled  out
and  the  State  has  not  discharged  its  responsibility  of  proving  the
impossibility of rehabilitation.

31.   In Bachan Singh (supra), this Court  has  categorically  stated,  “the
probability that the accused would not commit criminal acts of  violence  as
would constitute  a  continuing  threat  to  the  society”,  is  a  relevant
circumstance, that must be  given  great  weight  in  the  determination  of
sentence.   This  was  further  expressed  in  Santosh  Kumar  Satishbhushan
Bariyar (supra).  Many-a-times, while determining the sentence,  the  Courts
take it for granted, looking into the facts of a particular case,  that  the
accused would be a menace to the society and  there  is  no  possibility  of
reformation and rehabilitation, while  it  is  the  duty  of  the  Court  to
ascertain those factors, and the State is obliged to furnish  materials  for
and against  the  possibility  of  reformation  and  rehabilitation  of  the
accused.  Facts, which the Courts, deal with, in a  given  case,  cannot  be
the foundation for reaching such a conclusion,  which,  as  already  stated,
calls for additional materials.  We, therefore,  direct  that  the  criminal
courts, while dealing with offences like Section 302 IPC, after  conviction,
may, in appropriate cases, call for  a  report  to  determine,  whether  the
accused could be reformed or rehabilitated, which  depends  upon  the  facts
and circumstances of each case.

32.   Learned counsel also pointed out that the accused  had  not  kidnapped
the boy, who voluntarily came and stayed with  him.   Learned  counsel  also
pointed out that the entire case  rests  upon  circumstantial  evidence  and
generally in the absence  of  ocular  evidence,  death  sentence  is  seldom
awarded.  Reference was made to few judgments of this Court  in  support  of
his contention, such as State of Maharashtra v. Mansingh (2005)  3  SCC  131
and Bantu v. State of M.P. (2001) 9 SCC 615.    Learned  counsel  also  made
reference to  few  judgments  of  this  Court  where  death  sentences  were
commuted to life imprisonment, such as Aloke Nath Dutta  v.  State  of  West
Bengal (2007) 12 SCC 230, Sahdeo v. State of U.P. (2004) 10 SCC  682,  Swamy
Shraddananda v. State of Karnataka  (2007)  12  SCC  288,  Shankar  Kisanrao
Khade (supra), Haresh Mohandas Rajput (supra), Rajesh Kumar v. State  (2011)
13 SCC 706, Amit v. State of U.P. (2012) 4 SCC 107, etc.

33.   PW8 and PW9 heard the cries of the minor boy during  the  midnight  of
12.01.2008 and after going through their evidence they  reverberate  in  our
ears.  
Injury Nos.1, 3 to 5 were inflicted by hard and blunt  object,  while
injury no.2 was caused by sharp cutting edge and injury no.6 was  caused  by
hard and rash object, over and above, the offence  under  Section  377  also
stood proved.  
The murder was committed in an extremely  brutal,  grotesque,
diabolical and  dastardly  manner  and  the  accused  was  in  a  dominating
position and the victim was an innocent boy, the only  son  of  his  mother.
Accused was aged 35 years when the crime was committed  that  is  he  was  a
fully matured person.  
Life of a boy, the only son of PW7, the  mother,  was
taken away in a gruesome and barbaric  manner  which  pricks  not  only  the
judicial conscience but also the conscience of the society.

34.   Legislative policy  is  discernible  from  Section  235(2)  read  with
Section  354(3)  of  the  Cr.P.C.,  that  when   culpability   assumes   the
proportions of depravity, the Court has to give special reasons  within  the
meaning of Section 354(3) for  imposition  of  death  sentence.  
Legislative
policy is that when special reasons do exist, as in the  instant  case,  the
Court has  to  discharge  its  constitutional  obligations  and  honour  the
legislative policy by awarding appropriate sentence, that  is  the  will  of
the people.  
We are of the view that incarceration of a  further  period  of
thirty years,  without  remission,  in  addition  to  the  sentence  already
undergone, will be an adequate punishment in the facts and circumstances  of
the case, rather than death sentence. Ordered accordingly.

35.   The appeals are, accordingly, disposed of.






                                       eard Hear……………………………..J.
                                       (K. S. Radhakrishnan)






                                       .….………………………...J.
                                       (Vikramajit Sen)
New Delhi,
February 20, 2014.

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