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Saturday, September 17, 2016

awarded punishment of death under Section 302 IPC, RI for life and a fine of Rs.1,000/- with default stipulation for offence under Section 364 IPC, RI for seven years with similar fine for offence under Section 363 IPC, RI for seven years with similar fine for offence under Section 376(2)(f)/511 IPC and RI for seven years with similar fine for offence under Section 201 IPC. = “rarest of rare” case so as to confirm the death sentence of the appellant. The death penalty is therefore not confirmed. The question as to what would be the appropriate period out of imprisonment for the whole natural life that the appellant must spend in prison is not an easy one to be answered. As per submissions of learned counsel for the appellant in total an actual period of 20 years behind the bars would serve the ends of justice in the present case. Contra, learned State counsel has argued for whole of natural life. Rajendra Pralhadrao Wasnik v. State of Maharashtra[3] and Shankar Kisanrao Khade v. State of Maharashtra[4] catalogue the relevant factors which should be looked for and examined for awarding or confirming death sentence. He highlighted factors such as brutality, helplessness of the victim, unprovoked and pre-meditated attack as well as societal concern in respect of a particular brutal or heinous crime. According to him the facts of the case showed brutality, helplessness of the victim as well as unprovoked and pre-meditated design to assault. Learned counsel for the State also referred to some other cases where death penalty had been confirmed by this Court on the basis of peculiar facts of those cases. Since there are large number of judgments either confirming death sentence or commuting the same into life imprisonment, rendered on the basis of peculiar facts of those cases, it would not be of any real help to consider those judgments for deciding the issue as to whether in the facts of the present case death sentence should be confirmed or commuted. The occurrence is of the year 2011 when the appellant was said to be about 27 years old. Considering the fact that the deceased, a helpless child fell victim of the crime of lust at the hands of the appellant and there may be probabilities of such crime being repeated in case the appellant is allowed to come out of the prison on completing usual period of imprisonment for life which is taken to be 14 years for certain purposes, we are of the view that the appellant should be inflicted with imprisonment for life with a further direction that he shall not be released from prison till he completes actual period of 25 years of imprisonment. With this modification in the sentence, the appeals of the appellant are dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS. 292-293 OF 2014

Tattu Lodhi @ Pancham Lodhi                        …..Appellant

      Versus

State of Madhya Pradesh                             …..Respondent



                               J U D G M E N T


SHIVA KIRTI SINGH, J.

 The appellant, charge-sheeted for offences under Section 366(A), 363,  364,
376(2)(f)/511 and 201 of the Indian  Penal  Code  (for  brevity  ‘IPC’)  was
tried by the Twelfth Additional Sessions Judge, Jabalpur in  Sessions  Trial
No. 324 of 2011. He was found guilty of committing the  murder  of  a  minor
girl, aged about seven years and also of kidnapping and  attempt  to  commit
rape on her and for destruction of  evidence  relating  to  the  crime.  The
trial court awarded punishment of death under Section 302 IPC, RI  for  life
and a fine of Rs.1,000/- with default stipulation for offence under  Section
364 IPC, RI for seven years with similar fine  for   offence  under  Section
363 IPC, RI for seven years with similar fine  for   offence  under  Section
376(2)(f)/511 IPC and RI for seven  years  with  similar  fine  for  offence
under Section 201 IPC. All the punishments of imprisonment were directed  to
run concurrently. By the impugned judgment the High Court of Madhya  Pradesh
agreed with the findings of  the  trial  court  and  answered  the  criminal
reference in affirmative, confirming the death sentence  and  dismissed  the
criminal appeal preferred by the appellant.
2.     Learned senior  advocate  for  the  appellant,  Ms.  Meenakshi  Arora
initially made an attempt to  challenge  the  conviction  of  the  appellant
itself by pointing out absence  of  any  eye-witness  of  the  incident  and
dependence of the entire prosecution case on circumstantial evidence  alone.
Learned counsel for the State  countered  the  challenge  to  conviction  by
submitting that in law there is no hurdle in securing conviction  purely  on
circumstantial evidence. On facts,  he  highlighted  that  the  trial  court
considered the entire evidence on record fairly and in detail and found  the
following five circumstances proved against the accused:
(i)   The accused asked the victim soon before the incident to purchase  and
bring “Gutka” for him and after sometime she became untraceable.

(ii)  Victim was last seen alive with the accused

(iii)The accused avoided to hand over the keys of his house for  the  search
of victim.
(iv)  Recovery and seizure of victim’s dead body in a  gunny  bag  from  the
house of the accused.
(v)   Seizure of blood-stained clothes including bed sheet  from  the  house
of accused pursuant to his memorandum statement.
      3.    In view of submission advanced on behalf of the  appellant  that
the chain of evidence to prove his guilt beyond  reasonable  doubt  was  not
complete, we have examined the relevant evidence  and  also  the  discussion
thereof made by the trial court in detail from paragraphs 15 to  32  of  its
judgment and similar exercise by the High Court. On a careful  consideration
of the evidence of shopkeeker Anil Kumar Jain (PW-7) from where  the  victim
bought “Gutka” for the accused and  the  evidence  of  complainant  Gappu  @
Kshirsagar, Hemraj, Ram Kumar, Sitaram, Maharaj  Singh  along  with  medical
evidence, seizure report and report from  the  forensic  science  laboratory
confirming the presence of human blood on the gunny bag,  bed-sheet and bed-
cover which were seized from the house of accused, we find  no  good  reason
to interfere with the findings of the trial  court  duly  confirmed  by  the
High Court  that  the  appellant-accused  kidnapped  the  victim  and  after
subjecting  her  to  sexual  abuse,  throttled  her  to  death.  The   first
submission on behalf of the  appellant  that  the  chain  of  circumstantial
evidence is not complete and does not prove the guilt of  accused  is  found
to be without any  substance.  We  have  no  hesitation  in  confirming  the
conviction.
      4.    Since there was no appeal before the High Court  from  the  side
of the State or the complainant nor there is any such appeal in this  Court,
We have confirmed the conviction as made by the trial court but we  have  no
hesitation in indicating our disapproval  of  the  error  committed  by  the
trial court in convicting the accused only for the attempted rape. The post-
mortem report, besides showing injuries on the neck and face showed  several
bruise marks on the left and right side of the abdomen as well as an  injury
on the left side of the vagina. The  internal  examination  clearly  records
thus: “……………….. in the reproductive organ the hymen membrane  was  ruptured.
Mild bleeding and inflammation were found.  Vagina  was  congested  and  one
finger could be inserted. White discharge was  coming  out  of  vagina.”  In
view of aforesaid findings recorded in the post-mortem report of  the  seven
year old victim duly proved by Dr. Khare (PW-9), there was no  justification
not to hold the accused guilty of rape  simply  because  PW-9  in  his  oral
deposition made a casual statement that there was attempt to commit rape  on
the deceased before her death. It  may  only  be  noticed  that  the  Doctor
confirmed that the death  of  the  deceased  was  caused  by  asphyxia  from
choking out the throat by strangulation of the neck  and  all  the  injuries
were ante mortem in nature. It may also be noted here that  the  post-mortem
report (Ex. P-13) was prepared and signed not only by Dr. Rakesh Khare  (PW-
9) but also by his colleague Dr. Ashish Raj who  had  also  participated  in
the autopsy of the deceased.
      5.    Be that as it may,  we  have  now  to  consider  the  next  plea
advanced on behalf of the appellant that the facts of the case do  not  make
the crime to be “rarest of rare” and hence in such a case the  Courts  below
should not have awarded the death sentence.  In  support  of  the  aforesaid
plea, learned senior counsel has submitted that at the  time  of  occurrence
accused was aged only about twenty seven years and there was no material  to
negate the chance of accused  being  reformed  on  account  of  sentence  of
imprisonment and gaining further maturity. On the basis  of  injuries  which
can be associated with rape, learned senior counsel submitted that no  doubt
it was a heinous offence as the victim was only seven years  old  but  there
were neither any broken bones nor brutal tearing etc. to make out a case  of
extreme brutality. Learned senior counsel  referred to the statement of  the
accused recorded under Section 313 of the  Code  of  Criminal  Procedure  to
point out that since sometime back the accused was living alone as his  wife
had deserted him and he also admitted that there was  only  one  case  under
Section 354 IPC pending against him. Reference was also made  to  memorandum
statement of the  accused  recorded  by  the  police  in  presence  of  some
witnesses to show  that  as  per  such  statement  the  accused  killed  the
deceased because of loud cries by her.  According  to  learned  counsel  the
murder was in a state of panic and not a  premeditated  act  and  therefore,
the appellant deserves a lenient punishment, anything other than death.
      6.    Ms. Arora, learned  senior  counsel  for  the  appellant  placed
reliance upon judgment in the case of  Swamy  Shraddananda(2)  v.  State  of
Karnataka[1] to underscore that  although  Swamy  Shraddananda’s  conviction
under Sections 302 and 201 of the IPC was affirmed with a finding  that  the
crime was a cold blooded murder yet this Court was not convinced to  confirm
the sentence of death even after discussing the diabolical crime in which  a
wealthy married woman  fell  in  trap,  divorced  her  husband  married  the
accused and suffered death at his hands only for lust of her huge  property.
 The dead body was found buried under the floor of  her  residential  house,
obviously to conceal the ghastly crime.  In  such  a  crime,  while  mulling
over the vexed issue of adequate sentence in lieu of  death  sentence,  this
Court held that the Court had the power to substitute death by  imprisonment
for life and also to direct that the convict  would  not  be  released  from
prison for the rest of his life.  A Constitution Bench judgment in the  case
of Union of India v. V. Sriharan alias  Murugan  &  Ors.[2]  has  also  been
cited to show that judgment in the case of Swamy  Shraddananda  (2)  (supra)
has been approved and followed.  In paragraphs 89 and 90  of  this  judgment
it was explained that life imprisonment means the whole  life  span  of  the
person convicted and therefore in the facts of a case while  not  confirming
death penalty, this Court may, while exercising  its  power  to  impose  the
punishment of life imprisonment, specify the period upto which the  sentence
of life must remain intact so as to be proportionate to the  nature  of  the
crime committed.
      7.    The  submissions  advanced  on  behalf  of  the  State  will  be
considered hereinafter, but keeping in  mind  all  the  submissions,  it  is
clear that there is no opposition to  the  contention  advanced  by  learned
senior counsel for the appellant  on  the  basis  of  Swamy  Shraddananda(2)
(supra) and the Constitution Bench Judgment in Sriharan  (supra).   In  that
view of the matter and even otherwise we are in  respectful  agreement  with
the  views  expressed  in  those  judgments.   The  judicial  innovation  of
bridging the gap between death sentence on  the  one  extreme  and  only  14
years of actual imprisonment in the name of life imprisonment on the  other,
in our view serves a laudable purpose as explained in  those  judgments  and
does not violate any positive mandate of law in the Indian Penal Code or  in
the Code of Criminal Procedure.   Hence, for doing complete justice  in  any
case, this court can definitely follow the law laid down  in  the  aforesaid
judgments even by virtue of Article 142 of the Constitution of  India.   The
innovative approach reflected in the aforesaid judgments, on  the  one  hand
helps the convict in getting rid of death penalty in appropriate  cases,  on
the other it takes care of genuine concerns  of  the  victim  including  the
society by ensuring that life imprisonment shall actually mean  imprisonment
for whole of the natural life or to a lesser  extent  as  indicated  by  the
court in the light of facts of a particular case. Since there  is  no  party
who is actually a looser on account  of  such  an  approach  in  appropriate
cases, we feel no hesitation in accepting the submissions  advanced  by  the
appellant.  Hence the law is reiterated  that  in  appropriate  cases  where
this court is hesitant in maintaining death sentence, it may order that  the
convict shall undergo imprisonment for whole of natural life or to a  lesser
extent as may be specified.
      8.    Learned counsel for the State  has  made  a  strong  attempt  to
support the death sentence.  According to him the judgments in the  case  of
Rajendra Pralhadrao Wasnik v. State of Maharashtra[3] and  Shankar  Kisanrao
Khade v. State  of  Maharashtra[4]  catalogue  the  relevant  factors  which
should  be  looked  for  and  examined  for  awarding  or  confirming  death
sentence.  He highlighted factors such as  brutality,  helplessness  of  the
victim, unprovoked and pre-meditated attack as well as societal  concern  in
respect of a particular brutal or  heinous  crime.   According  to  him  the
facts of the case showed brutality, helplessness of the victim  as  well  as
unprovoked and pre-meditated design to assault.   Learned  counsel  for  the
State also referred to  some  other  cases  where  death  penalty  had  been
confirmed by this Court on the basis  of  peculiar  facts  of  those  cases.
Since there are large number of judgments either confirming  death  sentence
or commuting the same into life  imprisonment,  rendered  on  the  basis  of
peculiar facts of those cases, it would not be of any real help to  consider
those judgments for deciding the issue as to whether in  the  facts  of  the
present case death sentence should be confirmed or commuted.
      9.    Having considered the rival submissions  as  well  as  judgments
relied upon, we are of the considered view that the facts of  this  case  do
not make out a “rarest of rare” case so as to confirm the death sentence  of
the appellant.  The death penalty is therefore not confirmed.  The  question
as to what would be the appropriate  period  out  of  imprisonment  for  the
whole natural life that the appellant must spend in prison is  not  an  easy
one to  be  answered.   As  per  submissions  of  learned  counsel  for  the
appellant in total an actual period of 20 years behind the bars would  serve
the ends of justice in the present case. Contra, learned State  counsel  has
argued for whole of natural life.
      10.   The occurrence is of the year 2011 when the appellant  was  said
to be about 27 years  old.   Considering  the  fact  that  the  deceased,  a
helpless child fell victim of  the  crime  of  lust  at  the  hands  of  the
appellant and there may be probabilities of such  crime  being  repeated  in
case the appellant is allowed to come out of the prison on completing  usual
period of imprisonment for life which is taken to be 14  years  for  certain
purposes, we are of the view that the appellant  should  be  inflicted  with
imprisonment for life  with  a  further  direction  that  he  shall  not  be
released from prison  till  he  completes  actual  period  of  25  years  of
imprisonment.  With this modification in the sentence, the  appeals  of  the
appellant are dismissed.
                       …………………………………….J.
                       [J. CHELAMESWAR]


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


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

New Delhi.
September 16, 2016.
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[1]
      [2] (2008) 13 SCC 767
[3]
      [4] (2016) 7 SCC 1
[5]
      [6] (2012) 4 SCC 37
[7]
      [8] (2013) 5 SCC 546

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