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Friday, January 9, 2015

HANG TILL DEATH - CONFIRMED - A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of rarest of the rare case and we unhesitatingly so hold.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOS.2486-2487 OF 2014
             [Arising out of S.L.P. (Crl.) No. 330-331 of 2013]




Vasanta Sampat Dupare                        ... Appellant

                                   Versus

State of Maharashtra                              ... Respondent




                               J U D G M E N T


Dipak Misra, J.


In these two appeals, we are required to deal with a sordid  and  despicable
act of a married man who, at the time of incident was in  wedlock  for  more
than two scores having a criminal background, has yielded not  only  to  the
inferior endowments of nature but also has exhibited  the  gratification  of
pervert lust and brutish  carnality.   The  prey  of  such  degradation  and
depravity was a minor girl aged about four years, daughter of  Pinki,  PW-1,
and Krushna, PW-4.  The appellant, as per  the  prosecution  version,  after
satisfying  his  uncontrolled,  insatiable  and  rapacious  savage   desire,
battered the girl to death.  This led to his  facing trial for the  offences
punishable under Sections 302, 376(2)(f), 363, 367 and  201  of  the  Indian
Penal Code (for short, "IPC") in Sessions  Trial  No.  252/2008  before  the
Learned Additional Sessions Judge, Nagpur, who considering the  evidence  on
record and keeping in view the nature  of  the  crime  vide  judgment  dated
23.02.2012 after recording the conviction in respect of aforesaid  offences,
imposed the death sentence, apart from other punishment in respect of  other
offences and sent, as required under Section 366(1) of the Code of  Criminal
Procedure (for short, "CrPC"), for confirmation  by  the  High  Court.   The
judgment of conviction and the order  of  sentence  was  challenged  by  the
appellant in Criminal Appeal No. 112/2012 and it was heard  along  with  the
Criminal Confirmation Case No.1 of 2012 wherein the Division  Bench  of  the
High Court confirmed the sentence of death awarded by the  trial  Court  and
as a logical corollary dismissed the criminal appeal preferred by him.   The
said judgment is the subject of assailment in the present appeal.
2.    According to  the  prosecution  case  on  3.4.2008  about  9-10  p.m.,
informant, Krushna Dudhraj Sharma, father of the deceased, lodged  a  report
at the police station Wadi stating that he was staying in a  tenanted  house
with his wife and two daughters, the kidnapped girl aged about 4  years  and
her sister aged about six months.  One Subhash Sonawane was  residing  along
with his wife and son in the neighbourhood of the informant as a  tenant  of
the common landlord,  Kushal  Bansod.   The  appellant,  Vasanta  Dupare,  a
friend of Subhash Sonawane, was a frequent visitor to the house of  Subhash.
 On the fateful day when the informant, carpenter  by  profession,  returned
home about 7.00 p.m., he found his wife weeping and on a query  being  made,
she disclosed that Vasanta Dupare  had  taken  the  elder  daughter  on  his
bicycle while she was playing in the courtyard of the house and she had  not
yet returned home.  He, being perturbed, searched for his  daughter  in  the
vicinity, but it was an exercise in futility.  Thus, the initial  allegation
was that the appellant had kidnapped his minor daughter.  On  the  basis  of
the aforesaid report, a crime was registered  against  the  accused  for  an
offence punishable under Section 363 of the IPC.
3.    As the prosecution version further undrapes, on the same day,  Santosh
Ghatekar, PW-13, Assistant Police Inspector, while returning to  the  police
station, received the information that the appellant was moving around  Gati
Godown located on Khadgaon Road, and he passed on the  said  information  to
Police Inspector D.J.  Chauhan, PW-16,  and  eventually  the  appellant  was
apprehended and brought to the police station.  While in police custody,  on
4.4.2008, he took the investigating agency to the spot where  he  had  after
ravishing the minor girl child had murdered her.  A memorandum of  panchnama
to that effect was prepared in the morning of  4.4.2008  and  thereafter  he
led the police to the place of incident  wherefrom  the  dead  body  of  the
minor girl was recovered.  At his instance, the bicycle used  was  recovered
from the godown located in between Khadgaon to Kamleshwar road belonging  to
one Ashwin Prakash Agrawal.   Thereafter,  the  initial  offence  registered
under Section 363 IPC was converted to  offences  under  Section  376(2)(f),
367, 302 and 201 of the IPC.  The Investigating Agency  examined  number  of
witnesses under Section 161 CrPC and completed all the formalities and  laid
the chargesheet before the competent  court  which  in  turn  committed  the
matter to the Court of Session.
4.    The accused-appellant pleaded his innocence  and  non-involvement  and
took the plea that he had been falsely implicated due to animosity.
5.    The prosecution, to substantiate  the  charges  levelled  against  the
appellant, examined 17 witnesses.  After closure  of  the  evidence  of  the
prosecution, the accused was examined under Section 313 of the CrPC  and  he
pleaded complete denial and false implication.  The  defence  chose  not  to
adduce any evidence.
6.    The learned trial Judge, on the  basis  of  the  evidence  brought  on
record came to hold that the mother of the minor  girl,  Pinki,  PW-1,  knew
the appellant because of his frequent visits to her neighbour Subhash;  that
she had seen the accused in the courtyard where the minor girl  was  playing
along with other children; that  she had also seen him going  on  a  bicycle
from the behind; that Vandana Ramkar, PW-5, had deposed  categorically  that
while she was present outside Chandrawanshi  Hospital  after  finishing  her
work, she saw the appellant going on the bicycle with the deceased  and  she
had revealed when Pinki had made an enquiry about her  daughter;  that  Baby
Sharma, PW-6, and Minal @  Twinkle,  PW-3,  the  child  witness,  have  also
unequivocally deposed that they had seen the accused taking the  minor  girl
with him at the relevant time from  the  locality  in  question;  that  Baby
Sharma had further deposed that the minor girl  had  fallen  down  from  the
bicycle near her shop and the cyclist had purchased 'Minto  Fresh'  for  the
girl who was wearing black top and blue skirt; that she had  identified  the
cyclist and also  the  photograph  of  the  girl  who  had  accompanied  the
appellant at the relevant time; that Subhash  Sonawane,  PW-11,  had  stated
that the accused had been to his house for repairing his  tape  recorder  on
that day; that version of Subhash had received corroboration from his  wife,
Kavita, who has deposed that her  daughter  Akanksha  and  the  victim  were
playing in the courtyard and at that juncture  the  appellant  was  standing
in the courtyard; that the appellant had told Akanksha and the  daughter  of
PW-1 that he would buy chocolates  for  them  and,  therefore,  they  should
accompany him; that it had come in the  testimony  of  Kavita,  PW-12,  that
Akanksha, who was not having appropriate clothes on  her  person  came  back
home and by that time accused took the victim  girl  on  his  bicycle;  that
Manisha, PW-2, who knew the appellant, had deposed that he had come  to  her
house on the bicycle along with the girl and on being asked he had told  her
name and she was wearing black  top  and  blue  midi  and  the  accused  had
mentioned to her that she was the daughter of his friend; that Baby  Sharma,
PW-6, had identified the clothes of the deceased which were  on  her  person
on the day of the incident and had also  identified  him  that  he  was  the
person who had taken the girl; that the panch witnesses Ramprasad, PW-7  and
Anand Borkar,  PW-8,  had  stood  embedded  in  their  testimony  about  the
recovery wherefrom the girl was taken and the place where the dead body  was
found, and they had also  remained  firm  in  their  testimony  proving  the
panchnama to indicate the  seized  incriminating  materials,  that  is,  two
stones smeared with blood, blood  mixed  sample  earth,  branches  of  trees
having blood stains, minto fresh and empty chocolate wrappers and nikar  and
other clothes of the accused  from  the  spot;  that  the  other  two  panch
witnesses, namely, Purushottam Gore, PW-9,  and Sanotsh  Keche,  PW-10,  had
stated about the parcels containing clothes  of  the  deceased  and  various
samples taken from the body of the deceased, received from the hospital  and
the recovery of the bicycle from the  godown;  and  that  nothing  had  been
elicited which would create any kind of concavity in the testimony of  these
witnesses; and that the investigating officers had not given  any  room  for
doubt; that the examining doctor, Dr.  Prashant  Barve,  who  had  conducted
autopsy on the deceased had remained inflexible in the testimony as  regards
the reports; and that the ocular and the  documentary  evidence  brought  on
record established beyond reasonable doubt that the accused  by  alluring  a
minor girl of four years for giving chocolates,  had  kidnapped  her,  raped
her and caused injuries; and  also  had  intentionally  made  disappear  the
evidence of the crime committed by him.  On  the  aforesaid  reasoning,  the
learned trial Judge found the appellant guilty of the offences  and  treated
the same as a crime of extreme brutality, for he had  committed  rape  on  a
minor girl aged about four years without thinking about the  effect  on  the
victim.  It was also opined by the learned trial Judge that the accused  was
in mid 40s and had caused injuries by crushing stones weighing 8.5  kg.  and
7.5 kg with force upon her when she was in unbearable pains because  of  the
ferocious act of rape and injuries sustained by her; and  that  the  accused
was having criminal antecedents as he was prosecuted  for  various  offences
in four cases.  Taking into consideration  the  totality  of  circumstances,
that is, the aggravating  and  the  mitigating  circumstances,  the  learned
trial Judge regarded the case as rarest of the rare cases and sentenced  the
appellant to suffer death penalty under Section 302 IPC,  life  imprisonment
and fine of Rs.2,000/- with the default clause for  the  offence  punishable
under Section 376(2)(f) of the IPC; rigorous imprisonment  for  seven  years
and fine of Rs.1000/- with default clause for the offence  punishable  under
Section 363 of the IPC; rigorous imprisonment for seven years  and  fine  of
Rs.1000/- with default clause for the offence punishable under  Section  367
of the IPC; and rigorous imprisonment for three years and fine of  Rs.1000/-
with default clause for the offence punishable under Section 201 of the  IPC
with the stipulation that all the sentences relating to  imprisonment  shall
be concurrent and submitted the proceedings to the High Court under  Section
366(1) of the Code of Criminal Procedure, 1973  for  confirmation  of  death
sentence by the High Court.
7.    As has been stated earlier, the appellant preferred a Criminal  Appeal
assailing the conviction and the sentence and  the  High  Court  appreciated
the evidence afresh and  found  that  the  evidence  of  the  witnesses  was
impeccable and totally beyond reproach and the prosecution had been able  to
prove the offences to the hilt.  While dealing with the confirmation of  the
sentence, the High  Court  referred  to  various  decisions  and  opined  as
follows:
"The accused raped a  four  years  old  girl  and  thereafter  battered  and
smashed her head by two  heavy  stones  and  killed  her.   The  aggravating
circumstance as pointed out by us must be such as  would  have  shocked  the
conscience  of  the  community  in  general.   The  accused  had  acted   in
diabolical manner and  had  designedly  lured  the  unsuspecting  Muskan  to
accompany him on the bicycle.  Battering of the head of the girl  of  tender
years was done by the accused with extreme  cruelty.   The  crime  has  been
committed by the accused in an extremely cruel manner  exhibiting  brutality
and utter perversity.  The history sheet of the accused which is  placed  on
record exhibits several prosecutions  against  him.   The  accused  has  not
displayed any remorse or repentance for the act done by him and  we  do  not
find any material to indicate that there is a  possibility  of  the  accused
reforming himself.  The accused  would  continue  to  be  a  menace  to  the
society and, therefore, according to us, this  is  a  rarest  of  rare  case
calling for the extreme.

The mitigating  circumstances  which  are  brought  on  record  against  the
accused are that the accused  is  middle  aged  man  of  45  years  with  no
previous conviction so far.  The  accused  is  a  married  person  having  a
family.  However, the aggravating circumstances far out way  the  mitigating
circumstances and according to us, the extreme penalty of death  imposed  by
the trial court deserves to be confirmed."

8.    We have heard Mr. Sanjiv Das, learned counsel for  the  appellant  and
Mr. Shankar Chillarge, learned counsel for the respondent-State.
9.    It is submitted by the learned counsel  for  the  appellant  that  the
learned  trial  Judge  as  well  as  the  High  Court  has  committed  gross
illegality in placing reliance on  the  testimony  of  the  parents  of  the
deceased and other witnesses to establish the last seen  theory,  which  has
really not been established.  It  is  urged  by  him  that  the  leading  to
recovery of the dead body of  the  deceased  and  the  clothes  are  not  in
consonance with Section 27 of  the  Evidence  Act.   Learned  counsel  would
submit that the panch witnesses who  have  alleged  to  have  supported  the
prosecution story have really paved the path  of  deviancy  which  has  been
lost sight of by the learned trial Judge as well as by the High  Court.   It
is  his  further  submission  that  there  are   material   inconsistencies,
contradictions   and   omissions,   which   had   seriously   affected   the
prosecution's case and  the  chain  of  circumstances  for  implicating  the
accused in the crime has really not been established.  It is  propounded  by
him that the witnesses who have been cited by the prosecution  to  establish
the chain of circumstances, fundamentally the last seen  theory,  cannot  be
given credence to regard being had to the  unacceptable  contradictions  and
infirmities.  Finally, it is  canvassed  by  the  learned  counsel  for  the
appellant that the present case could not fall under the category of  rarest
of the rare cases warranting capital punishment and the criminal  background
that has been taken into consideration by the learned trial  Judge  as  well
as by the High Court is of not such  nature by which the  appellant  can  be
treated or regarded as a menace to  the  society  and,  therefore,  if  this
Court affirms the conviction, it should substitute the  punishment  to  that
of life imprisonment.
10.   Mr. Shankar Chillarge, learned counsel  for  the  respondent-State  in
support of  the  view  expressed  by  the  High  Court,  contends  that  the
prosecution has succeeded in proving  the  guilt  of  the  appellant  beyond
reasonable doubt and the scanning of  the  evidence  by  the  learned  trial
Judge, which has been re-appreciated by the High Court,  does  not  remotely
indicate any contradiction or discrepancy.  It is proponed by him  that  all
the witnesses  have  remained  absolutely  unshaken  in  their  version  and
nothing  substantial  has  been  elicited  from  them  during   the   cross-
examination which could create a dent in their testimony.   Learned  counsel
would further contend  that  if  the  ocular  and  documentary  evidence  is
appreciated in proper perspective, there remains no scintilla of doubt  that
the appellant had committed the brutal and  heinous  crime  and  in  such  a
circumstance when the society cries for justice, the Court should  not  show
any leniency for conversion of the sentence.
11.   To appreciate the rival submissions raised at the  Bar,  we  think  it
appropriate to refer to the postmortem report of  the  deceased.   The  said
report by the doctor, namely, Dr. Prashant  Barve,  PW-15,  which  has  been
brought on record as Exhibit 55, describes that at the time  of  postmortem,
the face was flattened, eyes closed,  mouth  partially  opened,  tongue  was
clinched and lacerated  between  teeth,  blood  was  oozing  through  mouth,
nostrils and ears.  It was also noticed that dry grass leaves  adhered  over
body at back side  and  dry  blood-stains  were  present  over  face,  neck,
perineum and lower limb.  He has found the following injuries  on  the  dead
body of the deceased:
"1)   Multiple scratch abrasions present over front of chest  and  front  of
neck size varying from 1 cm x   1/4 cm,  to  3  cm.  x  1/4th  cm.,  reddish
brown.

2)    Contused abrasion involving fore-head, eyes,  nose,  both  cheeks  and
lips red and dark  red  coloured,  underlying  bone  fractured,  underlying,
muscle lacerated.

3)    Multiple scratch abrasion present over left lower leg  and  left  foot
size varying from  cm. x 1/4th cm., to 1 cm. x 1/4th cm., reddish brown.

4)    Multiple scratch abrasion present over back of trunk  upper  2/3rd  of
size varying from 1 cm. x 1/4th cm. to 5 cm. x 1/4th  cm., reddish brown.

5)    Abrasion of size 1 cm.  x    cm.  present  over  left  knee,  reddish
brown."

12.   According to the doctor, he  had  found  during  internal  examination
that under scalp haemotoma was present over left frontal and  right  frontal
region of size 4 cm. x 4 cm, dark red, the frontal bone  was  fractured  and
depressed, fracture  line  extended  up  to  occipital  bone  through  right
temporal and parietal bone fracture on interior  and  middle  eranial  side.
The subarachined hemorrhage was present  all  over  the  brain  surface  and
meninges was congested.  In  his  opinion,  the  cause  of  death  was  head
injury, associated with the injury on the genital region.  He has  testified
that the two stones that were sent to him in sealed  cover  along  with  the
requisition, Exhibit 62, for opinion, could have  been  used  to  cause  the
injuries on the victim.  He has weighed the stones which is 8.5 kg  and  7.5
kg. and has opined that there had been forceful sexual intercourse.
13.   From the aforesaid medical evidence,  it  is  clear  as  crystal  that
there was forcible sexual intercourse  with  the  girl  and  the  death  was
homicidal in nature.
14.   Having analysed the  said  aspect,  it  is  to  be  seen  whether  the
prosecution has really established the complicity of the  appellant  in  the
crime in question.  We have enumerated the reasons ascribed by  the  learned
trial Judge and the concurrence given by the High Court, but to satisfy  our
conscience, we have thought it  seemly  to  peruse  the  evidence  with  all
insight and concern by ourselves.
15.   As is manifest, the father of the victim, Krishna,  PW-4,  had  lodged
the FIR immediately i.e. at 9:10 p.m.   The  FIR  clearly  stated  that  the
accused had taken away  the  victim.   The  role  of  the  accused  and  the
suspicion was thus immediately reported.  PW-1, mother of the deceased,  has
deposed that her daughter, the deceased girl, was playing in  the  courtyard
along with other children while she was doing the household  work  and  when
she came back to courtyard, she found that the child  was  missing  and  she
saw the appellant going on the bicycle.    Be  it  clarified,  she  had  not
actually seen the accused taking  away  the  victim  but,  as  the  evidence
brought on  record  do  reveal,  five  prosecution  witnesses  are  the  eye
witnesses to the factum of  accused  taking  away  the  minor  girl.   On  a
studied scrutiny of the evidence it becomes graphically clear that when  the
mother had gone in search of her, Vandana Ramkar, PW-5, had  told  her  that
the child had gone on bicycle with the appellant.  PW-5, in  her  testimony,
has unambiguously stated about the said fact.  It has come in the  testimony
of PW-1 that her daughter was wearing a blue  midi  and  black  top  on  her
person, and she has identified the said clothes which have been  brought  on
record as Articles 6, 9 and 10.  From the cross-examination it  is  manifest
that they knew the appellant earlier, and it is also demonstrable  from  the
evidence of Vandana Ramkar, PW-5, that the appellant had taken the  girl  on
the bicycle.  It has come in the evidence of Baby Sharma, PW-6,  that  about
7.30 pm on 3.4.2008  the appellant while going  on  the  bicycle  fell  down
near grocery shop  and,  thereafter,  the  cyclist  and  the  girl  came  to
purchase "Minto Fresh".   As deposed by her the girl  was  wearing  a  black
top and blue skirt on her person.   The  said  witness  has  identified  the
appellant and also identified the photograph of the girl, Article  12.   She
has also identified the clothes of the girl.   PW-12,  Kavita,  has  deposed
that her husband, Subhash, PW-11 and Krushna,  PW-4,  father  of  the  girl,
were working at the same place and on the  fateful  day  the  appellant  had
come to her house and told her husband  Subhash,  PW-11,  who  was  busy  in
repairing a tape-recorder that he could repair the same and  after  checking
it, he found some parts were damaged and needed to be replaced and  for  the
said purpose he took Rs.20 from PW-11 and after 15  minutes  came  with  the
part and tried to repair it but could not succeed.   He left  the  house  of
PW-11 at 4.00 pm.   It is in her testimony that about 6.00 pm the  appellant
came to her house again and as she was feeling giddy  and  had  reclined  on
the cot, he sprinkled some water on her face.  It is  deposed  by  her  that
her daughter, Akansha, and the deceased were playing in  the  courtyard  and
at that time the appellant who  was  standing  in  the  courtyard  had  told
Akansha  and  the  minor  girl  that  he  would  buy  them  chocolates  and,
therefore, they should accompany him.  As the  daughter  of  PW-12  was  not
wearing proper clothes she came back to  her  and  the  appellant  took  the
deceased with him.  According to her testimony the girl sat on  the  rod  of
the bicycle.  It is testified by her that as the  appellant  did  not  bring
back the child, they went in search of her.  She has clearly  deposed  about
the acquaintance of the appellant with her family. It is apt to  state  here
that nothing has been elicited in the cross-examination to raise  any  doubt
about the veracity of her version.
16.   Manisha, PW-2, has deposed that her father-in-law  runs  a  tea  stall
and she had the occasion to know  the  appellant.   She  has  supported  the
version of the prosecution by stating that the appellant  had  come  to  her
house about 7.30 p.m. and a girl aged about four years was  with  him.   She
has stated that the girl was dressed in black top and blue apparel and on  a
query being made, the appellant had introduced the child as the daughter  of
his friend and he was going  to 'Tekdi-Wadi' along with the  girl.   In  the
cross-examination it has only been elicited that she was not  aware  of  the
character of the appellant.   In this context, the evidence of Ku.  Minal  @
Twinkle, PW-3, aged about  11  years  is  extremely  significant.   She  has
clearly deposed that PW-1 is a resident of the locality  and  she  knew  the
deceased girl as she used to come  to  their  house  for  playing  with  her
younger sister.  She has emphatically stated that the deceased was going  on
a bicycle sitting on the front rod with one person and on  being  asked  she
said she was going to eat  chocolates.   She  has  identified  the  accused.
From the aforesaid evidence, it is quite vivid that the appellant  was  last
seen with the deceased and  there  is  no  justification  to  discredit  the
testimony of the witnesses.  Nothing has been brought on  record  that  they
had any axe to grind against the appellant.  The  fact  that  the  appellant
was taking the minor child on his bicycle,  and  stopped  at  shop  of  Baby
Sharma, PW-6, to purchase chocolate and was also seen  at  other  places  as
testified by other witnesses has been proven to the hilt.  There are  really
no contradictions and discrepancies that would compel the court  to  discard
their evidence.
17.   Be it noted, in appeal the High Court has observed that  even  if  the
testimony of Minal, PW-3, is left out  from  consideration  there  is  ample
evidence to show that accused had taken the  deceased  under  the  guise  of
offering her chocolates.  In our considered view, there is no  justification
not to rely upon the testimony of the said witness.  She has identified  the
appellant in court and has stood firm in her  version.   Her  identification
of the accused-appellant in the open court is piece of substantive  evidence
as has been held in Dana Yadav V. State of Bihar[1] and such  identification
by her has not been shaken or contradicted.  Be it  noted,  the  High  Court
has not rejected the said evidence, but has only opined  that  even  if  the
testimony is not accepted, then also the  identification  has  been  proved.
We think  the  testimony  of  PW-3  further  strengthens  the  case  of  the
prosecution.  Considering the evidence brought on record  in  totality,  the
irresistible conclusion  is  that  the  deceased  was  last  seen  with  the
appellant.  In this context,  a  fruitful  reference  may  be  made  to  the
observations made in Dharam Deo Yadav V. State of Uttar Pradesh[2],  wherein
it has been held thus:
"... if the prosecution, on the  basis  of  reliable  evidence,  establishes
that the missing person was seen in the  company  of  the  accused  and  was
never seen thereafter, it is obligatory  on  the  part  of  the  accused  to
explain he circumstances in which the missing person and the accused  parted
company."

      In the instant case, the appellant has not offered any explanation.
18.   The next circumstance which has been taken  note  of  by  the  learned
trial Judge as well as by the High Court pertains to  leading  to  discovery
by the appellant.  As is evincible, the panch witness, Anand  Borkar,  PW-8,
has proved Exhibit 29, the statement of the accused  relating  to  discovery
of the spot wherefrom the dead body was found.  He has  also  supported  the
seizure panchnama, Exhibit  31,  wherefrom  the  blood  stained  earth,  two
stones, nikar, Minto Fresh  chocolate and  one  empty  rapper  were  seized.
According to the said witness the said articles  were  seized  vide  Exhibit
31.  PW-10,  Santosh Keche, has proved the seizure of the bicycle  from  the
godown at the instance of the appellant.  The spot which was  shown  by  the
appellant and the godown from which bicycle was seized, as has come  in  the
evidence, is in the vicinity where the dead body was found.    Vide  Exhibit
34, the clothes, handkerchief and foot wear  of  the  accused  were  seized.
The stones smeared with blood  had  been  seized  at  the  instance  of  the
accused.
19.   Learned counsel for the  appellant  has  submitted  that  the  seizure
witnesses cannot be believed as the proper procedure has not been  followed.
As we find from the evidence on record the appellant was in custody  and  he
had led to recovery.   The search and seizure has  also  been  supported  in
minute detail by the Investigating Officer.  It is  also  evident  that  the
search witnesses  are  independent  witnesses  and  their  evidence  inspire
confidence.  While accepting or rejecting the factors of discovery,  certain
principles are to be kept in mind.  The Privy Council  in  Pulukuri  Kotayya
V. King Emperor[3] has held thus:

"It is fallacious to treat the  'fact  discovered'  within  the  section  as
equivalent to the object produced; the fact discovered  embraces  the  place
from which the object is produced and the knowledge of  the  accused  as  to
this, and the  information  given  must  relate  distinctly  to  this  fact.
Information as to past user, or the past history, of the object produced  is
not related to its discovery in the  setting  in  which  it  is  discovered.
Information supplied by a person in custody that 'I  will  produce  a  knife
concealed in the roof of my house' does not  lead  to  the  discovery  of  a
knife; knives were discovered many years ago. It leads to the  discovery  of
the fact that a knife is concealed in the house  of  the  informant  to  his
knowledge, and if the knife is proved to have been used  in  the  commission
of the offence, the  fact  discovered  is  very  relevant.  But  if  to  the
statement the words be added 'with which  I  stabbed  A',  these  words  are
inadmissible since they do not relate to the discovery of the knife  in  the
house of the informant."

20.         In Mohmed Inayatullah V.  The  State  of  Maharashtra[4],  while
dealing with the ambit and scope of Section 27  of  the  Evidence  Act,  the
Court held that:-
"Although the interpretation and scope  of  Section  27  has  been  [pic]the
subject  of  several  authoritative  pronouncements,  its   application   to
concrete cases is not always free from  difficulty.  It  will  therefore  be
worthwhile at the outset, to have a short and swift glance  at  the  section
and be reminded of its requirements. The section says:

"Provided that, when any fact is deposed to as discovered in consequence  of
information received from a person accused of any offence,  in  the  custody
of a police officer, so much of such information, whether it  amounts  to  a
confession or not, as relates distinctly to the fact thereby discovered  may
be proved."

The expression "provided that" together with the phrase "whether it  amounts
to a confession or not" show that  the  section  is  in  the  nature  of  an
exception to the preceding provisions particularly Sections 25  and  26.  It
is not necessary in this case to consider if this section qualifies, to  any
extent, Section  24,  also.  It  will  be  seen  that  the  first  condition
necessary for bringing this section into operation is  the  discovery  of  a
fact, albeit a relevant fact, in consequence  of  the  information  received
from a person accused of an offence. The second is  that  the  discovery  of
such fact must be deposed to. The third is that at the time of  the  receipt
of the information the accused must be in police custody. The last  but  the
most important condition is that  only  "so  much  of  the  information"  as
relates distinctly to the fact thereby discovered is  admissible.  The  rest
of  the  information  has  to  be  excluded.  The  word  "distinctly"  means
"directly", "indubitably", "strictly", "unmistakably".  The  word  has  been
advisedly used to limit and define the scope of  the  provable  information.
The phrase "distinctly relates  to  the  fact  thereby  discovered"  is  the
linchpin  of  the  provision.  This  phrase  refers  to  that  part  of  the
information supplied by the accused which is the direct and immediate  cause
of the discovery. The reason behind this partial lifting of the ban  against
confessions and statements made  to  the  police,  is  that  if  a  fact  is
actually discovered in consequence of information given by the  accused,  it
affords some guarantee of truth of that part, and that  part  only,  of  the
information which was the  clear,  immediate  and  proximate  cause  of  the
discovery. No such guarantee or  assurance  attaches  to  the  rest  of  the
statement  which  may  be  indirectly  or  remotely  related  to  the   fact
discovered.

At one time it was  held  that  the  expression  "fact  discovered"  in  the
section is restricted to a physical or material fact which can be  perceived
by the senses, and that it does not include a mental  fact  (see  Sukhan  v.
Crown[5]; Rex v. Ganee[6]). Now it is fairly  settled  that  the  expression
"fact discovered" includes not only the physical object produced,  but  also
the place from which it is produced and the knowledge of the accused  as  to
this (see  Palukuri  Kotayya  v.  Emperor;  Udai  Bhan  v.  State  of  Uttar
Pradesh[7])."

21.          In  Aftab  Ahmad  Anasari  V.  State  of  Uttaranchal[8]  after
referring to the decision in Palukuri Kotayya (supra),  the  Court  adverted
to seizure of clothes of the deceased which were concealed by  the  accused.
In that context, the Court opined that:-

"The part of the disclosure statement, namely, that the appellant was  ready
to show the place where he had concealed the  clothes  of  the  deceased  is
clearly admissible under Section 27 of the Evidence  Act  because  the  same
relates distinctly to the discovery of the  clothes  of  the  deceased  from
that very place. The contention that even if it is assumed for the  sake  of
argument that the clothes of the deceased were recovered from the  house  of
the sister of the appellant pursuant to the voluntary  disclosure  statement
made by the appellant, the prosecution has failed to prove that the  clothes
so recovered belonged to the deceased and therefore,  the  recovery  of  the
clothes should not be treated as an incriminating  circumstance,  is  devoid
of merits".

22.         In State of Maharashtra v. Damu[9] it has been held as  follows:

" ... It is now well settled that recovery of an object is not discovery  of
a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The  decision
of the Privy Council in Pulukuri Kotayya v. King Emperor is the most  quoted
authority for supporting  the  interpretation  that  the  'fact  discovered'
envisaged in the section embraces  the  place  from  which  the  object  was
produced, the knowledge of the accused as to it, but the  information  given
must relate distinctly to that effect."

23.          The  similar  principle  has  been  laid  down  in   State   of
Maharashtra v. Suresh[10], State of Punjab v. Gurnam Kaur[11],  Aftab  Ahmad
Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT  of  Delhi)[12],
Manu Sharma v. State (NCT of Delhi)[13] and Rumi  Bora  Dutta  v.  State  of
Assam[14].
24.         In the case at hand, as is perceptible, the recovery  had  taken
place when the appellant was accused of an offence, he was in custody  of  a
police officer, the recovery had taken place in consequence  of  information
furnished by him and the panch witnesses  have  supported  the  seizure  and
nothing has been brought on record to discredit their testimony.
25.         Additionally, another aspect can also be  taken  note  of.   The
fact that the appellant had led the police officer  to  find  out  the  spot
where the crime was committed, and the  tap  where  he  washed  the  clothes
eloquently speak of his conduct as the same is  admissible  in  evidence  to
establish his conduct.  In this context we may  refer  with  profit  to  the
authority in Prakash Chand v  State  (Delhi  Admn.)[15]  wherein  the  Court
after referring to the decision in H.P. Admn. V. Om Prakash[16] held thus:


 "... There is a clear distinction between the conduct of a  person  against
whom an offence is alleged, which is  admissible  under  Section  8  of  the
Evidence Act, if such  conduct  is  influenced  by  any  fact  in  issue  or
relevant fact and the statement made to a Police Officer in  the  course  of
an investigation which is hit by  Section  162  of  the  Criminal  Procedure
Code. What is excluded by  Section  162,  Criminal  Procedure  Code  is  the
statement made to a Police Officer in the course of  investigation  and  not
[pic]the evidence  relating  to  the  conduct  of  an  accused  person  (not
amounting to a statement) when confronted or questioned by a Police  Officer
during the course of an investigation. For  example,  the  evidence  of  the
circumstance, simpliciter, that an accused person led a Police  Officer  and
pointed out the place where stolen articles  or  weapons  which  might  have
been used in the commission of the  offence  were  found  hidden,  would  be
admissible as conduct, under Section 8 of the Evidence Act, irrespective  of
whether any statement by the accused contemporaneously  with  or  antecedent
to such conduct falls within the purview  of  Section  27  of  the  Evidence
Act."

26.         In A.N. Vekatesh and another v. State of  Karnataka[17]  it  has
been ruled that:-

"By virtue of Section 8 of the Evidence Act,  the  conduct  of  the  accused
person is relevant, if such conduct influences or is influenced by any  fact
in issue or relevant fact. The evidence of  the  circumstance,  simpliciter,
that the accused pointed out to the police  officer,  the  place  where  the
dead body of the kidnapped boy was found and on their pointing out the  body
was exhumed, would be admissible as conduct under Section 8 irrespective  of
the fact whether the statement made by the  accused  contemporaneously  with
or antecedent to such conduct falls within the purview of Section 27 or  not
as held by this Court in Prakash Chand v. State (Delhi Admn.).  Even  if  we
hold that the disclosure statement made by the accused-appellants (Exts.  P-
15 and P-16) is not admissible under Section 27 of the Evidence  Act,  still
it is relevant under Section 8. The evidence of  the  investigating  officer
and PWs 1, 2, 7 and PW 4 the spot  mahazar  witness  that  the  accused  had
taken them to the spot and pointed out the place where  the  dead  body  was
buried, is an admissible piece of evidence under Section 8  as  the  conduct
of the accused. Presence of A-1 and A-2 at a place where ransom  demand  was
to be fulfilled and their action of fleeing on spotting the police party  is
a relevant circumstance and are admissible under Section 8 of  the  Evidence
Act."

27.         We have referred to the aforesaid authorities only to  highlight
that in the present case the provision under Section 27  of Evidence Act  is
clearly attracted and we see no illegality in  the  seizure  and  the  Panch
witness  have  remained  embedded  in  their  version.   Nothing  has   been
suggested to disregard their evidence.  Therefore, we have no hesitation  in
holding that there is ample proof of seizure of the articles.   That  apart,
we have also additionally considered  the  conduct  of  the  appellant  that
speaks  eloquently,  for  it  is  worthy  of  being  considered  within  the
admissible parameters.
28.         The next circumstance which has been  accepted  by  the  learned
trail Judge and the High Court is the  identification  of  the  clothes  and
matching of blood stains of the appellant's clothes.  On  the  clothes  that
has been seized, the stains of human blood of 'A' Group are  detected.   The
chemical analysis report, Exhibit 77, has indicated  that  stains  of  human
blood of 'A' group which is detected on seized clothes, and the blood  group
that has been found on the clothes of the accused  including  his  underwear
and handkerchief is the  same.   The  matching  of  the  blood  group  gains
signification in such a circumstance.  The incriminating  articles,  namely,
stones smeared with blood, the clothes and the blood group  matching  is  an
important circumstance showing complicity of the appellant in the  crime  in
question.
29.         Another facet which  has  immense  significance  is  the  injury
report.  It graphically depicts the injuries on the  private  parts  of  the
minor girl which has been caused by sexual  intercourse.   Stains  of  human
blood of 'A' group have also been noticed on the front portion of the  nikar
of the accused as per Exhibit 77 which matches the blood group found on  the
stones.
30.   The other relevant circumstance that weighs against the  appellant  is
that the dead body of the deceased was recovered  at  the  instance  of  the
appellant.  It was within his special  knowledge.   The  tap  where  he  had
washed his clothes was quite nearby.  In this context, it is worthy to  note
that the accused had disclosed the facts and on the basis of his  disclosure
statement he had led to the place where the dead  body  of  the  victim  was
found.    In Deepak Chandrakant  Patil V. State of Maharashtra[18],  it  was
observed by this Court:
"... The fact that he knew about the dead body of the deceased lying in  the
garden behind the house of A-1 is almost  clinching  in  nature  and  leaves
nothing to doubt..."

31.   Regard being had to the aforesaid circumstances,  it  is  to  be  seen
whether on the basis of the said circumstances, it can be held whether  such
circumstances lead towards the guilt of the accused regard being had to  the
principle that they lead to a singular  conclusion  that  the  appellant  is
guilty of the offence and it does not allow any other probability  which  is
likely to allow the presumption  of  innocence  of  the  accused.   In  this
context, we may refer with profit to the decision  rendered  more  than  six
decades back in Hanumant Govind Nargundkar V. State of M.P.[19], wherein  it
has been held as follows:

 " ... It is well to remember that in cases  where  the  evidence  is  of  a
circumstantial nature, the circumstances from which the conclusion of  guilt
is to be drawn should in the first instance be fully  established,  and  all
the facts so established should be consistent only with  the  hypothesis  of
the  guilt  of  the  accused.  Again,  the  circumstances  should  be  of  a
conclusive nature and tendency and they should be such as to  exclude  every
hypothesis but the one proposed to be proved. In other words, there must  be
a chain of evidence so far complete as not to leave  any  reasonable  ground
for a conclusion consistent with the innocence of the accused  and  it  must
be such as to show that within all human probability the act must have  been
done by the accused."

32.   In Sharad Birdhichand Sarda v.  State  of  Maharashtra[20],  the  five
golden principles which have been stated to constitute the  "panchsheel"  of
the proof of  the  case  based  on  circumstantial  evidence  are  that  the
circumstances from which the conclusion of guilt is  to  be  drawn  must  or
should be and not merely "may be"  fully  established;  that  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; that the circumstances  should
be of a conclusive nature and  tendency;  that  they  should  exclude  every
possible hypothesis except the one to be proved; and that 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.
33.   In C. Chenga Reddy v. State of A.P[21] it has  been  held  that  in  a
case based on circumstantial evidence,  the  circumstances  from  which  the
conclusion of guilt is drawn should be fully proved and  such  circumstances
must be conclusive in nature, moreover,  all  the  circumstances  should  be
complete and there should be no gap left in  the  chain  of  evidence.  That
apart, the proved circumstances must be consistent only with the  hypothesis
of the guilt of the accused and totally inconsistent with his innocence.
34.   We may also take note of the fact that the appellant in his  statement
under Section 313  CrPC,  except  making  a  bald  denial,  has  not  stated
anything.  In this context, we may  refer  with  profit  to  a  decision  in
Suresh  (supra)  wherein  it  has  been  held  that  there  can   be   three
possibilities when an accused points to the place  where  the  incriminating
material is concealed without stating that  it  was  concealed  by  himself.
Elucidating on the three possibilities, the Court observed thus:
" ... One is that he himself would have concealed  it.  Second  is  that  he
would have seen somebody else concealing it. And the third is  [pic]that  he
would have been told by another person that it was concealed there.  But  if
the accused declines to tell the criminal court  that  his  knowledge  about
the concealment was on account of one of  the  last  two  possibilities  the
criminal court can presume that it was concealed  by  the  accused  himself.
This  is  because  the  accused  is  the  only  person  who  can  offer  the
explanation as to how else he came to know of such  concealment  and  if  he
chooses to refrain from telling the court as to how else he came to know  of
it, the presumption  is  a  well-justified  course  to  be  adopted  by  the
criminal court that the concealment was made by himself."

35.   On a critical analysis of the evidence on  record,  we  are  convinced
that the circumstances that have  been  clearly  established  are  that  the
appellant was seen in the courtyard where the minor girl and other  children
were playing; that the  appellant  was  seen  taking  the  deceased  on  his
bicycle; that he had gone to the grocery shop owned  by  PW-6  to  buy  Mint
chocolate along with her; that the accused had told PW-2 that the child  was
the daughter of his friend and he was going  to 'Tekdi-Wadi' along with  the
girl; that the appellant had led to  discovery  of  the  dead  body  of  the
deceased, the place where he had washed his clothes and at his instance  the
stones smeared with blood were recovered; that the  medical  report  clearly
indicates about the injuries sustained by the deceased  on  her  body;  that
the injuries sustained on the private parts have been stated by  the  doctor
to have been caused by forcible sexual intercourse;  that  the  stones  that
were seized were smeared with blood and the  medical  evidence  corroborates
the fact that injuries could have been  caused  by  battering  with  stones;
that the chemical analysis report shows that the blood group on  the  stones
matches with the blood group found on the clothes  of  the  appellant;  that
the appellant has not offered any explanation with regard  to  the  recovery
made at his instance; and that nothing has been stated  in  his  examination
under Section 313 CrPC that there was any justifiable  reason  to  implicate
him in the crime in question.  Thus, we find that each of the  incriminating
circumstances has been clearly established and the  chain  of  circumstances
are conclusive in nature to exclude any kind  of  hypothesis,  but  the  one
proposed to be proved, and lead to a definite conclusion that the crime  was
committed by the accused.  Therefore, we have  no  hesitation  in  affirming
the judgment of conviction rendered by the learned trial Judge and  affirmed
by the High Court.
36.   Now we shall proceed to deal with the facet of  sentence.   In  Bachan
Singh v. State of Punjab[22], the Court held thus:-

 "(a) The normal rule is that the offence of murder shall be  punished  with
the sentence of life imprisonment. The court can depart from that  rule  and
impose the sentence of death only if there are  special  reasons  for  doing
so. Such reasons must be recorded  in  writing  before  imposing  the  death
sentence.

(b) While considering the  question  of  sentence  to  be  imposed  for  the
offence of murder under Section 302 of the Penal Code, the court  must  have
regard to every relevant circumstance relating to the crime as well  as  the
criminal. If the court finds, but not otherwise, that the offence is  of  an
exceptionally depraved and heinous character and constitutes, on account  of
its design and the manner of its execution, a source of grave danger to  the
society at large, the court may impose the death sentence."

37.   In the said case, the Court referred to  the  decision  in  Furman  v.
Georgia[23] and noted the suggestion given by the learned counsel about  the
aggravating and the mitigating circumstances.  While  discussing  about  the
aggravating circumstances, the Court  noted  the  aggravating  circumstances
suggested by the counsel which read as follows:-
"Aggravating circumstances: A court may, however,  in  the  following  cases
impose the penalty of death in its discretion:

(a) if the murder has been committed after previous  planning  and  involves
extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union  or
of a member of any police force or of any public servant and was committed-

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such  member
or public servant in the lawful discharge of his  duty  as  such  member  or
public servant whether at the time of murder he was such  member  or  public
servant, as the case may be, or had ceased  to  be  such  member  or  public
servant; or

(d) if the murder is of a person who had acted in the  lawful  discharge  of
his duty under Section 43 of the Code of Criminal Procedure,  1973,  or  who
had rendered assistance to a Magistrate or a police  officer  demanding  his
aid or requiring his assistance under Section 37  and  Section  129  of  the
said Code."

      After reproducing the same, the Court opined:-

"Stated broadly, there can be  no  objection  to  the  acceptance  of  these
indicators but as we have indicated already, we would prefer not  to  fetter
judicial discretion by attempting to make an exhaustive enumeration one  way
or the other."

38.   Thereafter, the  Court  referred  to  the  suggestions  pertaining  to
mitigating circumstances:-

 "Mitigating circumstances.-In the exercise of its discretion in  the  above
cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental  or
emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not  be
sentenced to death.

(3) The probability that the accused  would  not  commit  criminal  acts  of
violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.  The
State shall by  evidence  prove  that  the  accused  does  not  satisfy  the
conditions (3) and (4) above.

(5) That in the facts and circumstances of the  case  the  accused  believed
that he was morally justified in committing the offence.

(6) That the accused  acted  under  the  duress  or  domination  of  another
person.

(7) That the condition of the accused showed that he was mentally  defective
and  that  the  said  defect  impaired  his  capacity  to   appreciate   the
criminality of his conduct."

After reproducing the above, the Court observed:-

"We will do no  more  than  to  say  that  these  are  undoubtedly  relevant
circumstances and must  be  given  great  weight  in  the  determination  of
sentence."

39.   In the said case, the Court has also held thus:-

"It is, therefore, imperative to voice the concern  that  courts,  aided  by
the broad illustrative guide-lines  indicated  by  us,  will  discharge  the
onerous function with evermore scrupulous care and humane concern,  directed
along the highroad of legislative policy outlined  in  Section  354(3)  viz.
that for persons convicted of murder, life  imprisonment  is  the  rule  and
death sentence an exception. A real and abiding concern for the  dignity  of
human  life  postulates  resistance  to  taking   a   life   through   law's
instrumentality. That ought not to be done save in the rarest of rare  cases
when the alternative option is unquestionably foreclosed."

40.   In Machhi Singh and Others v. State of Punjab[24] a three-Judge  Bench
has explained the concept of rarest of the rare cases by stating that:-

"The reasons why the community as a whole does not  endorse  the  humanistic
approach reflected in 'death sentence-in-no-case' doctrine are  not  far  to
seek. In the first place, the very humanistic edifice is constructed on  the
foundation  of  'reverence  for  life'  principle.  When  a  member  of  the
community violates this very principle by killing another  [pic]member,  the
society may not  feel  itself  bound  by  the  shackles  of  this  doctrine.
Secondly, it has to be realised that every member of the community  is  able
to live with safety without his or her own life being endangered because  of
the protective arm of the community and  on  account  of  the  rule  of  law
enforced by it. The very existence of the rule of law and the fear of  being
brought to book operates as a deterrent for those who have  no  scruples  in
killing others if it suits their ends. Every member of the community owes  a
debt to the community for this protection."

41.   Thereafter, after adverting to the  aspects  of  the  feeling  of  the
community and its desire for self-preservation, the Court  opined  that  the
community  may  well  withdraw  the  protection  by  sanctioning  the  death
penalty.  The Court in that regard ruled thus:-
 "But the community will not do so in every case.  It  may  do  so  'in  the
rarest of rare cases' when its collective conscience is so shocked  that  it
will expect the holders of  the  judicial  power  centre  to  inflict  death
penalty irrespective of their personal opinion as  regards  desirability  or
otherwise of retaining death penalty."

42.   It is apt to state here that in the said case, emphasis  was  laid  on
certain  aspects,  namely,  manner  of  commission  of  murder,  motive  for
commission of murder,  anti-social  or  socially  abhorrent  nature  of  the
crime, magnitude of crime and personality of the victim of murder.
43.   After so enumerating the propositions that  emerged  out  from  Bachan
Singh  (supra) were culled out which are as follows:-
"The following propositions emerge from Bachan Singh case:

"(i) The extreme penalty of death need not be inflicted  except  in  gravest
cases of extreme culpability.

(ii)  Before  opting  for  the  death  penalty  the  circumstances  of   the
'offender' also require to  be  taken  into  consideration  along  with  the
circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an  exception.  In
other words death sentence must  be  imposed  only  when  life  imprisonment
appears to be an altogether  inadequate  punishment  having  regard  to  the
relevant circumstances of the crime, and provided, and  only  provided,  the
option  to  impose   sentence   of   imprisonment   for   life   cannot   be
conscientiously exercised having regard to the nature and  circumstances  of
the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has  to  be
drawn up and in doing so the mitigating circumstances have  to  be  accorded
full weightage and a just balance has to be struck between  the  aggravating
and the mitigating circumstances before the option is exercised."

44.    Thereafter,  the  three-Judge  Bench  opined  that  to   apply   said
guidelines, the following questions are required to be answered:-
 "(a) Is there something uncommon about the crime which renders sentence  of
imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that  there  is  no  alternative
but to impose death sentence even after according maximum weightage  to  the
mitigating circumstances which speak in favour of the offender?"

            In the said case, the Court upheld the extreme penalty of  death
in respect of three accused persons.

45.   In Haresh Mohandas Rajput v. State of  Maharashtra[25]  while  dealing
with the situation where the  death  sentence  is  warranted  the  two-Judge
Bench referred to the guidelines laid down in Bachan Singh (supra)  and  the
principles culled out in Machhi Singh (supra) and opined as follows:-

"In Machhi Singh v. State of Punjab  this  Court  expanded  the  "rarest  of
rare" formulation beyond the aggravating factors listed in Bachan  Singh  to
cases where the "collective conscience" of the community is so shocked  that
it will expect the holders of the  judicial  power  centre  to  inflict  the
death  penalty  irrespective  of   their   personal   opinion   as   regards
desirability or otherwise of retaining the 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  the  aggravating  and  the  mitigating
circumstances."

            After so stating, the Court ruled thus:-

"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. 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 coexistence.  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
[pic]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  fibre  of  the  society  e.g.  crime
committed  for  power  or  political  ambition  or  indulging  in  organised
criminal activities, death sentence should be awarded. (See C. Muniappan  v.
State of T.N[26]., Dara Singh v. Republic of  India[27],  Surendra  Koli  v.
State of U.P.[28], Mohd. Mannan[29] and Sudam v. State of Maharashtra[30].)

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  the  death  sentence  should  be
awarded, would depend upon the factual scenario of the case in hand."

46.   In Dhanjoy Chatterjee alias Dhana v. State  of  W.B.[31],  this  Court
was dealing with the murder of a young girl of about 18  years.   The  Court
took note of the fact that the accused was a married  man  of  27  years  of
age, the principles stated in Bachan Singh's case and further took  note  of
the fact that rise of violent crimes against  women  in  recent  years,  and
thereafter  on  consideration  of   aggravating   factors   and   mitigating
circumstances and opined that:-

"In our opinion, the measure of punishment in a given case must depend  upon
the atrocity of the crime; the conduct of the criminal and  the  defenceless
and unprotected state of the victim. Imposition  of  appropriate  punishment
is the manner in which the courts respond to the society's cry  for  justice
against the criminals. Justice demands that courts should impose  punishment
befitting the crime so that the courts  reflect  public  abhorrence  of  the
crime. The courts must not only keep in view the rights of the criminal  but
also the rights of the victim of  crime  and  the  society  at  large  while
considering imposition of appropriate punishment."

47.   After so stating, the Court took note of the fact  that  the  deceased
was a school going girl and it was the sacred duty of the  appellant,  being
a security guard, to ensure the safety of the inhabitants of  the  flats  in
the apartment but to gratify his lust he had raped and murdered the girl  in
retaliation which made the crime more heinous.  Appreciating the  manner  in
which the barbaric crime was committed on a helpless and defenceless school-
going girl of 18 years the Court came to hold that  the  case  fell  in  the
category of rarest of the rare cases and accordingly  affirmed  the  capital
punishment imposed by the High Court.
48.   In Laxman Naik v. State of Orissa[32]  the  Court  has  commenced  the
judgment with the following passage:-
"The present case  before  us  reveals  a  sordid  story  which  took  place
sometime in the afternoon of February 17, 1990, in which the alleged  sexual
assault followed by  brutal  and  merciless  murder  by  the  dastardly  and
monstrous act of abhorrent nature is said to  have  been  committed  by  the
appellant herein who is none else but an agnate and paternal  uncle  of  the
deceased victim Nitma, a girl of the tender age of 7 years who fell  a  prey
to his lust which sends shocking waves not only to the  judicial  conscience
but to everyone having slightest sense of human values and  particularly  to
the blood relations and the society at large".

49.   Be it stated, in the said  case  the  High  Court  had  dismissed  the
appellant's appeal and confirmed the death sentence awarded to  him.   While
discussing as regards the justifiability of sentence the Court  referred  to
the decision in Bachan Singh's case and opined that  there  were  absolutely
no mitigating circumstances and, on the contrary,  the  facts  of  the  case
disclosed   only   aggravating   circumstances   against   the    appellant.
Elaborating further the Court held thus:-
"The hard facts of the present case are that the  appellant  Laxman  is  the
uncle of the deceased and almost occupied the status and position that of  a
guardian. Consequently the victim who was  aged  about  7  years  must  have
reposed complete confidence in the appellant and while reposing  such  faith
and confidence in the appellant must have believed in his bona fides and  it
was on account of such a faith and belief that she acted  upon  the  command
of the appellant in accompanying him  under  the  impression  that  she  was
being taken to her village unmindful of the  preplanned  unholy  designs  of
the appellant. The victim was a totally helpless child there  being  no  one
to protect her in the desert where she was taken by the  appellant  misusing
her confidence to fulfil  his  lust.  It  appears  that  the  appellant  had
preplanned to commit the crime by resorting to  diabolical  methods  and  it
was with that object that he took the girl to a lonely place to execute  his
dastardly act."

      After so stating the Court while affirming the death  sentence  opined
that:-
" .......The victim of the age of Nitma could not have  even  ever  resisted
the act with which she was subjected to. The appellant seems to  have  acted
in a beastly manner as after satisfying his lust he thought that the  victim
might expose him for the commission of the offence of forcible rape  on  her
to the family members and others,  the  appellant  with  a  view  to  screen
[pic]the evidence of his crime also put an end to the life of innocent  girl
who had seen only seven summers. The evidence on  record  is  indicative  of
the fact as to how diabolically the appellant had conceived of his plan  and
brutally executed it and such a calculated, cold-blooded and  brutal  murder
of a girl  of  a  very  tender  age  after  committing  rape  on  her  would
undoubtedly fall in the category of rarest of the rare cases  attracting  no
punishment other than the capital punishment  and  consequently  we  confirm
the sentence of death imposed upon  the  appellant  for  the  offence  under
Section 302 of the Penal Code."

50.   In Kamta Tiwari and State of  M.P.[33]  the  appellant  was  convicted
for the offences punishable under Sections 363, 376,302 and 201 of  IPC  and
sentenced to death by learned trial Judge and the same was affirmed  by  the
High Court.  In appeal the two-Judge  Bench  referred  to  the  propositions
culled out in Machhi Singh and expressed thus:-
"Taking an overall view of all the facts and circumstances  of  the  instant
case in the light of the above propositions we are of the firm opinion  that
the sentence of death should be maintained. In vain  we  have  searched  for
[pic]mitigating  circumstances  -  but   found   aggravating   circumstances
aplenty. The evidence on record clearly establishes that the  appellant  was
close to the family of Parmeshwar and the deceased and her siblings used  to
call  him  'Tiwari  Uncle'.  Obviously  her  closeness  with  the  appellant
encouraged her to go to his shop, which was near the saloon  where  she  had
gone for a haircut with her father and brother, and ask for  some  biscuits.
The appellant readily responded to the request by taking her to  the  nearby
grocery shop of Budhsen and handing over a packet of biscuits apparently  as
a prelude to his sinister design which unfolded in  her  kidnapping,  brutal
rape and gruesome murder - as the numerous injuries on her  person  testify;
and the finale was the dumping of her dead body in a well. When an  innocent
hapless girl of 7 years was  subjected  to  such  barbaric  treatment  by  a
person who was in a position  of  her  trust  his  culpability  assumes  the
proportion of extreme depravity and arouses a  sense  of  revulsion  in  the
mind of the common man. In fine, the  motivation  of  the  perpetrator,  the
vulnerability of the victim,  the  enormity  of  the  crime,  the  execution
thereof persuade us to hold that this is a "rarest of rare" cases where  the
sentence of death is eminently desirable  not  only  to  deter  others  from
committing such atrocious crimes but also to  give  emphatic  expression  to
society's abhorrence of such crimes."

51.   In Bantu v. State of Uttar Pradesh[34] a  five  year  minor  girl  was
raped and murdered and the appellant  was  awarded  death  sentence  by  the
trial Court which was affirmed by the High  Court.   This  Court  found  the
appellant guilty of the crime and  thereafter  referred  to  the  principles
stated in Bachan Singh, Machhi Singh  (supra)  and  Devender  Pal  Singh  v.
State of A.P.[35]  and eventually came to hold that the said  case  fell  in
the rarest of the rare category and the capital  punishment  was  warranted.
Being of this view, the Court declined to interfere with the sentence.
52.   In  Rajendra  Pralhadrao  Wasnik  v.  State  of  Maharashtra[36],  the
appellant was awarded sentence of death by the  learned  trial  Judge  which
was confirmed by the High Court, for he was found  guilty  of  the  offences
punishable under Sections 376(2)(f), 377 and 302 IPC.   In  the  said  case,
the prosecution had proven that the appellant had lured  a  three  year  old
minor girl child on the pretext of buying her biscuits and  then  raped  her
and eventually being apprehensive of being identified, killed her.  In  that
context, while dismissing the appeal, the Court ruled thus:
"When the Court draws a balance sheet  of  the  aggravating  and  mitigating
circumstances, for the purposes of determining whether the extreme  sentence
of death should be imposed upon the accused or not,  the  scale  of  justice
only  tilts  against  the  accused  as  there  is  nothing  but  aggravating
circumstances evident from the record of the Court.  In  fact,  one  has  to
really struggle to find out  if  there  were  any  mitigating  circumstances
favouring the accused.

Another aspect of the matter is that the minor child  was  helpless  in  the
cruel hands of  the  accused.  The  accused  was  holding  the  child  in  a
relationship of "trust-belief" and "confidence", in which capacity  he  took
the child from the house of PW 2.  In  other  words,  the  accused,  by  his
conduct, has belied the human relationship  of  trust  and  worthiness.  The
accused left the deceased in a badly injured condition in  the  open  fields
without even clothes. This reflects the most unfortunate and  abusive  facet
of human conduct, for which the accused has to blame no one  else  than  his
own self."

53.   At this juncture, we may refer to some authorities where in  cases  of
rape and murder, the death penalty was not awarded.  In  State  of  T.N.  V.
Suresh and Another[37],  the  Court  unsettled  the  judgment  of  acquittal
recorded by the High Court and found that the accused was guilty of rape  of
a pregnant woman and also murder.   While  awarding  the  sentence  of  life
imprisonment, the Court expressed the view:-
"The above discussion takes us to the final conclusion that the  High  Court
has seriously erred in upsetting the  conviction  entered  by  the  Sessions
Court as against A-2  and  A-3.  The  erroneous  approach  has  resulted  in
miscarriage of justice by allowing  the  two  perpetrators  of  a  dastardly
crime  committed  against  a  helpless  young  pregnant  housewife  who  was
sleeping in her own apartment with her little baby sleeping by her side  and
during the  absence  of  her  husband.  We  strongly  feel  that  the  error
committed by the High Court must  be  undone  by  restoring  the  conviction
passed against A-2 and A-3, though we are not inclined, at this distance  of
time, to restore the sentence of death passed by the trial  court  on  those
two accused".

      From the aforesaid authority, it is seen that the Court did not  think
it appropriate to restore the death  sentence  passed  by  the  trial  court
regard being had to the passage of time.
54.   In Akhtar V. State of U.P.[38], the  appellant  was  found  guilty  of
murder of a young girl after committing rape on her  and  was  sentenced  to
death by the learned Sessions Judge and the said sentence was  confirmed  by
the High Court.  The two-Judge Bench referred to  the  decisions  in  Laxman
Naik (supra), Kamta Tiwari (supra) and addressed itself whether the case  in
hand was one of the rarest of the rare case for which  punishment  of  death
could be awarded.  The Court distinguished  the  two  decisions  which  have
been referred to hereinabove and ruled:-
"In the case in hand on examining the evidence of  the  three  witnesses  it
appears to us that the accused-appellant has committed  the  murder  of  the
deceased girl not intentionally and with any  premeditation.  On  the  other
hand the accused-appellant found a young  girl  alone  in  a  lonely  place,
picked her up for committing rape; while committing rape and in the  process
by way of  gagging  the  girl  has  died.  The  medical  [pic]evidence  also
indicates that the death is on account of asphyxia. In the circumstances  we
are of the considered opinion that the case in hand cannot  be  held  to  be
one of the rarest of rare cases justifying the punishment of death".

55.   In State of Maharashtra V. Barat Fakira Dhiwar[39], a  three-year  old
girl was raped and  murdered  by  the  accused.   The  learned  trial  Judge
convicted the accused and awarded the death sentence.  The  High  Court  had
set aside the order of conviction and acquitted him for the offences.   This
Court, on scrutiny of the evidence found the accused was guilty of rape  and
murder.  Thereafter, the Court proceeded to deal with the  sentence  and  in
that context observed:-
"Regarding sentence we would have concurred with the Sessions  Court's  view
that the extreme penalty of death can be chosen for such a  crime.  However,
as the accused was  once  acquitted  by  the  High  Court  we  refrain  from
imposing that extreme penalty in  spite  of  the  fact  that  this  case  is
perilously near the region of "rarest of the rare cases",  as  envisaged  by
the Constitution Bench in Bachan Singh v.  State  of  Punjab.  However,  the
lesser  option  is  not  unquestionably  foreclosed  and  so  we  alter  the
sentence, in regard to the offence under Section 302  IPC,  to  imprisonment
for life".

56.   Keeping in  view  the  aforesaid  authorities,  we  shall  proceed  to
adumbrate what is the duty of the Court when the  collective  conscience  is
shocked because of the crime committed.  When the  crime  is  diabolical  in
nature and invites abhorrence of the  collective,  it  shocks  the  judicial
conscience  and  impels  it  to  react  keeping  in  view   the   collective
conscience, cry of the community for justice  and  the  intense  indignation
the manner in which the  brutal  crime  is  committed.   We  are  absolutely
conscious that Judges while imposing sentence, should never be  swayed  away
with any kind of individual philosophy and predilections.  It  should  never
have the flavour  of  Judge-centric  attitude  or  perception.   It  has  to
satisfy the test laid down in various precedents relating to rarest  of  the
rare case.  We are also required to pose two questions that has been  stated
in Machhi Singh's case.
57.   Presently, we shall proceed to dwell upon  the  manner  in  which  the
crime was committed.  Materials on record clearly reveal that the  appellant
was well  acquainted  with  the  inhabitants  of  the  locality  and  as  is
demonstrable he had access to the house of the father of  the  deceased  and
the children used to call him "uncle".  He had  lured  the  deceased  to  go
with him to have chocolates.  It is an act of taking advantage  of  absolute
innocence.  He had taken the deceased from place to  place  by  his  bicycle
and eventually raped her in a brutal manner, as if  he  had  the  insatiable
and ravenous appetite.  The injuries caused on the minor girl are likely  to
send a chill in the spine of the society and shiver in the marrows of  human
conscience.  He had battered her to death by assaulting her with  two  heavy
stones.   The  injured  minor  girl  could  not  have  shown  any  kind   of
resistance.  It is not a case where the accused had a momentary  lapse.   It
is also not a case where  the  minor  child  had  died  because  of  profuse
bleeding due to rape but because of the  deliberate  cruel  assault  by  the
appellant.  After the savage act was over, the coolness of the appellant  is
evident, for he washed the clothes on the tap and took proper care  to  hide
things.  As is manifest, he even did not think for a moment the  trauma  and
torture that was caused to the deceased.  The gullibility and  vulnerability
of the four year girl, who could  not  have  nurtured  any  idea  about  the
maladroitly designed biological desires of this nature, went with the  uncle
who extinguished her life spark.  The barbaric act  of  the  appellant  does
not remotely show any concern for the precious life of a young  minor  child
who had really not seen  life.   The  criminality  of  the  conduct  of  the
appellant is not only depraved and debased, but can have a  menacing  effect
on the society.  It is calamitous.   In  this  context,  we  may  fruitfully
refer to a passage from Shyam Narain V. State (NCT  of  Delhi)[40],  wherein
it has been observed as follows:
"The wanton lust, vicious appetite, depravity of senses,  mortgage  of  mind
to the inferior endowments of nature, the servility to the  loathsome  beast
of passion and absolutely unchained carnal desire have driven the  appellant
to commit a crime which can bring in a "tsunami" of shock  in  the  mind  of
the collective, send a chill down the spine  of  the  society,  destroy  the
civilised stems  of  the  milieu  and  comatose  the  marrows  of  sensitive
polity".

      In the said case, while describing the  rape  on  an  eight  year  old
girl, the Court observed:

"Almost for the last three decades,  this  Court  has  been  expressing  its
agony and distress pertaining  to  the  increased  rate  of  crimes  against
women. The  eight  year  old  girl,  who  was  supposed  to  spend  time  in
cheerfulness, was dealt with animal passion and her dignity  and  purity  of
physical frame was  shattered.  The  plight  of  the  child  and  the  shock
suffered by her can be well visualised. The torment on  the  child  has  the
potentiality to corrode the poise and equanimity of any  civilised  society.
The age-old wise saying that "child is a  gift  of  the  providence"  enters
into the realm of absurdity. The young girl,  with  efflux  of  time,  would
grow with a traumatic experience, an unforgettable shame. She  shall  always
be haunted by the memory replete with heavy  crush  of  disaster  constantly
echoing the chill air of the past forcing her  to  a  state  of  nightmarish
melancholia. She may not be able to assert the honour  of  a  woman  for  no
fault of hers."

58.   In the case at hand, as we find, not only the rape was committed in  a
brutal manner but murder was also committed in a barbaric manner.  The  rape
of a minor girl child is nothing but a monstrous burial of  her  dignity  in
the darkness. It is a crime against the holy body of a girl  child  and  the
soul of the society and such a crime is aggravated by the  manner  in  which
it has been committed.  The nature of the crime and the manner in  which  it
has been committed speaks about  its  uncommonness.   The  crime  speaks  of
depravity, degradation and uncommonality.  It is  diabolical  and  barbaric.
The crime was committed in an inhuman manner.  Indubitably, these go a  long
way to establish the aggravating circumstances.
59.   We are absolutely conscious that mitigating circumstances  are  to  be
taken into consideration.  Learned counsel for the  appellant  pointing  out
the mitigating circumstances would submit that the appellant is in  his  mid
fifties and there is possibility of  his  reformation.   Be  it  noted,  the
appellant was aged about forty-seven years at the time of commission of  the
crime.  As is noticeable, there has been no  remorse  on  the  part  of  the
appellant.  There are cases when this Court has commuted the death  sentence
to life finding that the accused has expressed remorse or the crime was  not
pre-meditated.  But the obtaining factual  matrix  when  unfolded  stage  by
stage would  show  the  premeditation,  the  proclivity  and  the  rapacious
desire.  Learned counsel would submit that the  appellant  had  no  criminal
antecedents but we find that he was a  history-sheeter  and  had  number  of
cases are pending against him.  That  alone  may  not  be  sufficient.   The
appalling cruelty shown  by  him  to  the  minor  girl  child  is  extremely
shocking and it gets accentuated, when his age is taken into  consideration.
 It was not committed under any mental stress or emotional  disturbance  and
it is difficult to comprehend that he would not commit such acts  and  would
be reformed  or  rehabilitated.   As  the  circumstances  would  graphically
depict, he would remain a menace to the society,  for  a  defenceless  child
has become his prey.  In our considered opinion,  there  are  no  mitigating
circumstances.
60.   As we perceive, this case deserves to fall in the category  of  rarest
of the rare cases.  It is inconceivable from the perspective of the  society
that a married man aged about two scores and seven make a  four  year  minor
innocent girl child the prey of his lust and deliberately cause  her  death.
A helpless and defenceless child gets raped  and  murdered  because  of  the
acquaintance of the appellant with the people of the society.  This  is  not
only betrayal of an individual trust  but  destruction  and  devastation  of
social trust.  It is perversity in its enormity.   It  irrefragably  invites
the extreme  abhorrence  and  indignation  of  the  collective.   It  is  an
anathema to the social balance.  In our view, it meets the  test  of  rarest
of the rare case and we unhesitatingly so hold.
61.   Consequently,  we  dismiss  the  criminal  appeals  preferred  by  the
appellant and affirm the death sentence.


                                  ........................................J.
                             [DIPAK MISRA]



                                 .........................................J.
                                      [ROHINTON FALI NARIMAN]



                                  ........................................J.
                                        [UDAY UMESH LALIT]

NEW DELHI
NOVEMBER 26, 2014.

-----------------------
[1]     (2002) 7 SCC 295
[2]     (2014) 5 SCC 509
[3]    AIR 1947 PC 67
[4]     (1976) 1 SCC 828
[5]     AIR 1929 Lah. 344
[6]     AIR 1932 Bom 286
[7]    1962 Supp 2 SCR 830
[8]    (2010) 2 SCC 583
[9]      (2000) 6 SCC 269
[10]     (2000) 1 SCC 471
[11]     (2009) 11 SCC 225
[12]    (2011) 6 SCC 396
[13]    (2010) 6 SCC 1
[14]    (2013) 7 SCC 417
[15]   (1979) 3 SCC 90
[16]   (1972) 1 SCC 249
[17]   (2005)  7 SCC 714
[18]    (2006) 10 SCC 151
[19]    AIR 1952 SC 343
[20]    (1984) 4 SCC 116
[21]    (1996) 10 SCC 193
[22]   (1980) 2 SCC 684
[23]   33 L Ed 2d 346 : 408 US 238 (1972)
[24]   (1983) 3 SCC 470
[25]   (2011)  12 SCC 56
[26]   (2010) 9 SCC 567
[27]   (2011) 2 SCC 490
[28]   (2011) 4 SCC 80
[29]   (2011) 5 SCC 317
[30]   (2011) 7 SCC 125s
[31]   (1994) 2 SCC 220
[32]   (1994) 3 SCC 381
[33]   (1996) 6 SCC 250
[34]   (2008) 11 SCC 113
[35]   (2002) 5 SCC 234
[36]   (2012) 4 SCC 37
[37]   (1998) 2 SCC 372
[38]    (1999) 6 SCC 60
[39]    (2002) 1 SCC 622
[40]    (2013) 7 SCC 77

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