LAW FOR ALL : Death Penalty converted in to life imprisonment till natural death Trial court imposed the extreme penalty of death without deciding the question of whether there was no alternative to imposing death sentence on the accused-appellant. There is no finding that in the absence of death sentence, the accusedappellant would continue to be a threat to the society. The question of whether the accused-appellant could be reformed, had not at all been considered.

Wednesday, October 30, 2019

Death Penalty converted in to life imprisonment till natural death Trial court imposed the extreme penalty of death without deciding the question of whether there was no alternative to imposing death sentence on the accused-appellant. There is no finding that in the absence of death sentence, the accusedappellant would continue to be a threat to the society. The question of whether the accused-appellant could be reformed, had not at all been considered.

Death Penalty converted in to life imprisonment till natural death
Trial court imposed the extreme penalty of death without deciding the question of whether there was no alternative to imposing death sentence on the accused-appellant. There is no finding that in the absence of death sentence, the accusedappellant would continue to be a threat to the society. The question of whether the accused-appellant could be reformed, had not at all been considered.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1110-1111 OF 2015
Dattatraya @ Datta Ambo Rokade …Appellant
VERSUS
The State of Maharashtra …Respondent
J U D G M E N T
INDIRA BANERJEE, J.
1. These appeals are against the final judgment and order dated
21/24/25-3-2014 of the High Court of Judicature at Bombay in
Criminal Appeal No. 1202 of 2013/Criminal Confirmation Case No.6
of 2013 whereby the High Court has confirmed the conviction of the
appellant under Sections 302, 376(2)(f), 377, 363, 364, 367 and
201 of the Indian Penal Code, as also under Sections 3, 4, 5(i) (l)
and (m) of the Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as ‘POCSO’) and, inter alia, affirmed
the sentence of death imposed on the appellant.
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2. The facts giving rise to these appeals are abhorrent. The
Complainant and his wife being the second Prosecution Witness
(PW) resided at Room No.3 in the ground floor of Om Sai building,
near the Shivsena Office in Koparigaon, with their son aged 10
years and two daughters aged 7 years and 5 years respectively.
3. It is the case of the complainant that he and his wife (PW 2),
used to go to work, leaving the three children at home. On
22.1.2013, PW 2 had to go to her paternal home to visit her father.
When PW 2 returned home around 2.00 p.m. she found that her
youngest daughter, being the victim, was not at home. Assuming
that the victim might be playing somewhere nearby, PW 2 left for
work at around 2.15 p.m. At around 4.30 to 5.00 p.m. PW 2
received a call on her mobile phone from one Avaghade Mama,
informing her that the victim was not at home. PW 2 thereafter
returned home, and started searching for the victim. She contacted
the complainant as also her own parents on mobile.
4. Thereafter the complainant, PW 2, her mother and brother all
started looking for the victim in Koparigaon, Vashi and Sanpada
areas. As the victim could not be found, a missing report was
lodged with the APMC Police Station.
5. When the complainant and his wife (PW 2) reached home at
around 2.30 a.m. after frantic efforts to trace the victim, they found
the victim lying nude and still in front of the door of their tenement,
with no movement.
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6. The complainant contacted the police from his mobile and
told the police that his daughter (the victim) had been found lying
still, without any movement. The complainant and PW 2 took the
victim to the Navi Mumbai Municipal Corporation Hospital, where
the Medical Officer examined the victim and declared her ‘brought
dead’.
7. In the hospital the complainant noticed injuries on the body of
victim. There was redness on both shoulders and both thighs of
the victim, and laceration in the vagina and anus of the victim.
Accompanied by the Inspector of APMC Police Station, who had
come to the hospital for investigation, the complainant went to the
APMC Police Station and lodged a First Information Report, on the
basis of which Crime No.120/2013 was registered by the APMC
Police Station.
8. An inquest of the body of the victim was conducted and
photographs of the body were taken. There were injuries. The
vagina and the anus of the deceased victim was lacerated and
blood was oozing out. On 23.1.2013, Dr. Bhushan Jain, assisted by
Dr. Prerna Thakur, conducted post mortem examination of the
deceased victim. Dr. Bhushan Jain also noticed injuries on the
private part, anus, below the eye lid and above the upper lip. He
collected the blood of the deceased victim for DNA mapping and
grouping and also collected her vaginal and anal swab for detection
of sperms. The samples were kept for chemical analysis.
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9. Dr. Bhushan Jain who prepared the post mortem report
(Exhibit 48) opined that the cause of death of the victim was
asphyxia due to smothering, associated with head injuries and
sexual assault. Dr. Bhusan Jain deposed that all the five injuries
were possible by repeated sexual acts and forceful penetration. He
opined that all these injuries were sufficient to cause instant death
in the ordinary course.
10. In the meanwhile, on 23.1.2013 investigation commenced.
PW 26 was the Investigating Officer. on 23.1.2013 at about 7.15
p.m., Panchnama (Ex.30) of the place where the deceased victim
was found, was recorded in the presence of one Parashuram
Mahadu Thakur, who deposed as the tenth prosecution witness (PW
10). A plastic bag of Surf Excel with plastic and two pieces of CDs
were found on the spot. These were separately seized and packed
and sealed under Panchnama (Ex.30).
11. The accused-appellant along with his wife Asha (PW 18) two
sons Rupesh and Mahendra (PW 19), two daughters, Manisha and
Nisha (PW 20) and a grandson Omkar used to reside in Room No. 8
of the same building, adjacent to the tenement of the complainant.
12. The accused-appellant had been unemployed for four years,
and sat idle at home. Omkar the grandson of the accusedappellant used to be at school from 12.00 noon to 6.00 p.m. All
other family members of the accused-appellant used to leave for
work during the day. The accused-appellant used to stay at home
alone.
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13. It is the case of the prosecution that on 22.01.2013, in the
afternoon, the accused-appellant took the victim to his house,
raped her, had unnatural sexual intercourse with her causing her
head injury and smothering her, as a result of which she died. On
the same night at around 2.00 a.m., the accused-appellant had
gone outside the house and on 23.01.2013, the accused-appellant
went to the house of his brother at Kamothe without informing his
wife, Asha (PW 18). On 24.01.2013 at about 07.30 p.m., PW 18 i.e.,
wife of the accused-appellant found the accused-appellant was in
tension and asked him to go to their family doctor.
14. On 24.01.2013 at about 7.30/8.00 p.m., PW 7 being the
Family Doctor, examined the accused-appellant and found that the
accused-appellant was tensed and his blood pressure was high. The
Head Constable, Gejage, (PW 15) who had been making inquiries
from the residents of Om Sai Building, had left his mobile number
with the residents of the building including Mahendra (PW 19), the
son of the accused-appellant so that they could contact him if they
got any information with regard to the incident.
15. It was the case of the prosecution that the accused-appellant
used to force himself on his wife and have sexual intercourse with
her without her consent two to four times a week. Furthermore, in
2004, when the accused-appellant and his family members were
residing at Village Dudhanoli, the accused-appellant had outraged
the modesty of a lady, Suvarna (PW 6) while she was attending to
the call of nature. It is alleged that the accused-appellant was
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assaulted by villagers because of the aforesaid incident. The
accused-appellant and his entire family, therefore, had to leave
Village Dudhanoli forever.
16. The prosecution has alleged that considering the antecedents
of the accused-appellant and his conduct after the incident, PW 19
suspected that the accused-appellant might be the culprit who had
committed the ghastly crime.
17. On 24.01.2013, PW 19 contacted the Head Constable, Gejage
(PW 15) and told him that he suspected the accused-appellant of
being guilty. Thereafter, on the night of 24.01.2013, the said Head
Constable, Gejage, (PW 15) and Senior Police Inspector, Kambale
took the accused-appellant to the office of Crime Branch for inquiry.
On 25.01.2013, the accused-appellant was arrested and the clothes
on his person, i.e, blue coloured full pants, Bermuda pants and a
yellow shirt were seized under panchnama, which is marked Ex.
(Exhibit) 28. On 25.01.2013, the Investigating Officer, Police
Inspector, Bhong, being the 26th Prosecution Witness (PW 26), went
to the house of the accused-appellant along with a team from
Forensic Science Laboratory and searched the house in the
presence of panchas, the Forensic Laboratory team and daughter
of the accused-appellant, Nisha (PW 20).
18. Three cushion covers from the Sofa, a cloth for cleaning the
floor and a sari used as a bed-sheet, all stained with blood, were
seized. On 25.01.2013 itself, the accused-appellant was examined
by Dr. Tambe (PW 8), who found that the accused-appellant was in
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sound physical and mental condition. On 26.01.2013, the accusedappellant made a statement in the presence of Panchas on the
basis of which which blood stained white coloured plastic gunny
bag, blood stained orange coloured shirt and black pants of the
deceased were recovered from the debris near Om Sai Building.
19. The complainant and his wife being the parents of the victim,
identified her clothes. It is alleged that on 27.01.2013, Vinod and
Sanjay being the 4th and 5th Prosecution Witnesses approached the
Investigating Officer, Bhong (PW 26) and told him that on
22.01.2013, they had a meeting in the office of 10th Prosecution
Witness (PW 10), Parshuram, which was situated in a building
about 15 feet away from Om Sai Building. These witnesses told the
police that after they came out of the office at about 4.30 p.m they
were standing under a parking shed and talking. At that time, they
saw a short old man carrying a white bag coming from the side of
the staircase and going into a lane. The man kept the bag in the
lane which was in front of the parking shed.
20. PW 4 and PW 5 identified the accused-appellant, as the same
person, who had kept the bag in the lane, in a test identification
parade conducted by the Executive Magistrate, Ratnanjali (PW 21).
This very bag was recovered at the instance of the accusedappellant under Panchnama and packed in a packet (Ex.35 and
Ex.36). Both PW 4 and PW 5 identified the bag as the same bag
which had been carried by the accused-appellant and dumped in
the lane.
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21. It is stated that on 29.01.2013, the accused-appellant was
produced before Dr. Thakur, the Casualty Medical Officer in Navi
Mumbai Municipal Corporation Hospital (PW 16). Dr. Thakur
collected blood of the accused-appellant in two plastic containers
provided by the Forensic Science Laboratory, sealed the packet
containing the plastic containers, filled in the identification form,
attested the photograph of the accused-appellant and obtained
thumb impression of the accused-appellant on identification form
22. The clothes of the accused-appellant, the white plastic bag,
the clothes of the deceased, sealed bottle containing blood of the
accused-appellant and his semen, hair and nail were sent to the
Forensic Science Laboratory. The blood, hair, nail, vaginal swab and
anal swab of the victim were also sent to the Forensic Science
Laboratory. The reports received by the Investigating Officer,
Bhong (PW 26) from the Forensic Science Laboratory showed that
D.N.A. profile of blood detected on the plastic bag, orange shirt of
the deceased and sari cum bed-sheet seized from the house of the
accused-appellant was identical with D.N.A. profile of the deceased
victim. The reports also showed that D.N.A. profile test of semen
conducted on underwear (Bermuda pants) of the accused-appellant,
and the vaginal swab and anal swab of the victim matched the
D.N.A. profile of the accused-appellant.
23. Charges were framed against the accused-appellant under
Sections 363, 364, 367, 377, 302, 201 and 376 or alternatively
376(2)(f) of the Indian Penal Code. Charges were also framed under
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Sections 3, 4 and 5 of the Prevention of Children from Sexual
Offences Act (hereinafter referred to as ‘POCSO). The accusedappellant pleaded not guilty and claimed to be tried. His defence
was of denial and false implication.
24. The prosecution examined 27 witnesses. No witnesses were
examined on behalf of the accused-appellant. Shorn of
unnecessary details, the first prosecution witness, being the
complainant (PW 1), deposed that when he returned home at
around 3.20 a.m. on 23.1.2013, after frantically searching for his
daughter, he found his daughter lying naked in front of the door of
his house. She was still and there was no movement. He informed
the police. The victim was taken to Navi Mumbai Corporation
Hospital where she was declared dead. PW 1 described the injuries
on the victim i.e. redness on both shoulders and both thighs. He
said there was blood in the private part of the victim and there was
a laceration in the vagina. The anus was swollen. He identified the
complaint and stated that its contents were correct. PW-1 identified
the following articles: -
a. A sealed packet which contained a black thread worn by the
victim (Marked as Articles 1 and 1A).
b. A sealed packet containing a plastic bag of surf excel powder
of 1.5 kg (Marked as Article 2 and 2A).
c. A packet containing two pieces of CD (Marked as Articles 3
and 3A.
d. One sealed packet containing an orange coloured shirt, which
he identified as shirt of the victim. (Marked as Articles 25 and
25A)
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e. Another sealed packet containing black half pants which the
witness identified as pants of the victim. (Marked as Articles
24 and 24A)
25. PW-1 deposed that his daughter, the victim, had been raped
and murdered. In his cross-examination, he admitted that he had in
course of his examination expressed suspicion against one Arun
Pawar. Records reveal that the said Arun Pawar, a worker of the
Shiv Sena Party had been arrested, but later released and charges
against him dropped after investigation.
26. The 2
nd Prosecution Witness (PW 2), being the wife of the
complainant, and mother of the victim, in essence, reiterated what
her husband had said. She also identified the black thread and the
clothes worn by the victim. She also reiterated that initially she
and her husband being the complainant had suspected that Arun
Pawar was the culprit. She, however, denied that there had been
any compromise between the complainant and his wife (PW 2) and
the said Arun Pawar.
27. The 3
rd Prosecution Witness (PW 3) is a pancha, who
signed on a panchnama at the hospital. She only put her signature
on the packets containing the thread and the clothes of the victim.
She also described the injuries on the victim. None of the first
three witnesses have said anything to even suggest who could be
the culprit.
28. The 4
th Prosecution Witness (PW 4) who claims to run a
construction business, stated that he had business dealings with
persons residing at Koprigaon. On 22.1.2013 he had gone to meet
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Parshuram Thakur at the Shiv Sena Office at Koprigaon. His friends
Sanjay Govari and Devidas Dalavi, a resident of Airoli were also
there at the office. This witness deposed that after coming out of
the Shiv Sena Office, he, Sanjay Govari and Devidas Dalavi were
standing below a shed in front of a building near the said Office.
While they were standing below the shed, they saw an old man
come from the side of the staircase, holding a white bag, which he
kept in the lane which was in front of the parking shed. The old
man was short and except for Bermuda pants that he had been
wearing, he was bare bodied. According to this witness, he along
with Devidas Dalavi and Sanjay Govari once again went to the office
of Parshuram Thakur after a few days, when Parshuram Thakur told
them about the rape and murder of a girl in a building in front of his
office, which had taken place on 22.1.2013.
29. This witness stated that on hearing of the incident, he told
Parshuram Thakur that on 22.1.2013 that he had seen an old man
going into the lane in front of the shed under which they were
standing, with a bag. Parshuram Thakur then told this witness to
inform this to the police. On 27.1.2013, this witness along with
Sanjay Govari who has also deposed as the fifth witness, went to
the police station, met the police officer and disclosed what he had
seen, which was recorded by the police.
30. Thereafter on 7.2.2013, this witness received a letter
informing him that he should meet the Tehsildar. On 8.2.2013, this
witness along with Sanjay Govari and Devidas Dalavi went to the
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Tehsildar, and thereafter, along with another lady, went to Taloja jail
where he identified the accused-appellant as the person who had
kept the bag in the lane.
31. This witness identified a white colour plastic bag taken out
from a bag, marked Articles 23 A and 23. He also identified the
Bermuda pants as the same pants worn by the accused-appellant.
In cross-examination, he said that the old man with the bag did not
arouse his suspicion. If his suspicion had been aroused, he would
have gone to the police station the same day.
32. The 5
th Prosecution Witness Sanjay Kamlakar Govari
(PW 5) reiterated what had been stated by PW 4. He also
identified the plastic bag as the same one which had been dumped
in the lane by the accused-appellant. He read out the description
printed in the inner side of the plastic bag “crystal white sugar
sulphiton Jawahar sugar hupari Kolhapur (Maharashtra State) India
S-30 sucrose 50 kgs. 2009-2010 best before 3 years”. In cross
examination this witness stated that he had not seen any
identification mark on the white bag on that day and he also stated
that when he saw the white bag, he did not have any suspicion. He
reiterated that he had seen the old man dropping the white plastic
bag in the lane.
33. The 6
th Prosecution Witness (PW 6), a teacher and a
resident of Dudhanoli, Taluka Murbad, District Thane deposed that
the accused-appellant had tried to outrage her modesty when she
had gone to relieve herself in the open field in the year 1998 i.e.
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about 15 years before the present incident. She said that she and
her husband had beaten up the accused-appellant and that night,
the accused-appellant left the village permanently. The aforesaid
incident has no connection with the rape and murder of the victim.
In cross examination she admitted that she had not lodged any
complaint against the accused-appellant.
34. The 7
th Prosecution Witness (PW 7), a Homeopathic
Doctor, deposed that on 24.1.2013 at about 7 p.m. the accusedappellant had visited her complaining of uneasiness. She said she
noticed that the accused-appellant was suffering from tension and
his blood pressure was slightly high. She thought that the accusedappellant might be suffering from acidity and accordingly
prescribed medicines. The evidence of this witness does not by any
stretch of imagination, establish the guilt of the accused-appellant
for the offence alleged.
35. The 8
th Prosecution Witness (PW 8) an Associate Professor
in Terana Medical College, Surgery Department deposed that on 25th
January, 2013 he was on call duty at Navi Mumbai Municipal
Corporation General Hospital. On that day he examined the
accused-appellant who had been brought by the police. On
examination, the accused-appellant appeared to be in sound
physical and mental condition. On examination of private part that
is genital, no external injury was found but “bilateral scrotal
enlargement was seen”. Apart from that there was no external
injury. Genital size was normal. There was no external deformity in
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genital. Testicular reflex was normal. Penis was uncircumcised,
Smegma was absent. There were no signs of sexually transmitted
disease. There were no Injuries on glans penis.
36. This witness deposed that glance and sulcus was washed and
washed material was collected in a glass bulb for examination.
Blood was collected for blood grouping and examination. Samples
of pubic hair and scalp hair were also collected. There was nothing
to suggest that the patient was impotent. However, the witness
volunteered that on physical examination it was not possible to
draw 100% conclusion about potency. The evidence of this witness
also does not contain anything material, that points to the guilt of
the accused-appellant , for the offence alleged.
37. The 9
th Prosecution Witness (PW 9), a driver by
occupation, is the Panch for the yellow shirt, blue pants and blue
Bermudas under the pants of the accused-appellant which had
been seized by the police. His evidence reveals that these clothes
were found on the body of the accused-appellant on 25th January,
2013 at about 1.45 P.M., that is, almost 48 hours after the incident.
38. The 10th Prosecution Witness (PW 10), Parshuram
Mahadu Thakur, a Builder in the business of construction, owned an
apartment in a building in the ground floor of which there was a
Shivsena office. He said that on 23rd January, 2013 at about 7.15
a.m., police officer Dighe called him near Om Sai Niwas. PW 10
stated that he had shown the police officer the spot where the dead
body of the victim had been found. By that time, the dead body
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had been removed. He also deposed that at the spot, a bag of Surf
Excel and two pieces of CDs were found. On the bag of Surf Excel
there were some blood stains. The bag of surf excel and pieces of
CDs were separately packed by the police. The police recorded
spot panchnama. PW-10 identified his signature in the panchnama
and deposed its contents were correct.
39. This witness deposed that PW Nos. 4, 5 and an agent Dalavi,
used to come to his office during the period between 19th January,
2013 and 22nd January, 2013. On 22nd January, 2013, they had
come to his office at around 2/2.30 P.M. and they were there in his
office till 4.30 p.m.
40. This witness said that on 26th January, 2013 the aforesaid
persons again came to his office for discussion in relation to a plot.
While talking to them, this witness told them that on 22nd January,
2013 there had been rape and murder of a five year old girl. The
police were inspecting a bag. On hearing this, PWs 4 and 5 and
Dalavi mentioned that they had seen a man who seemed
frightened, drop a bag. This witness deposed that he had advised
the aforesaid persons to go and inform the police. Thereafter, the
three persons left.
41. This witness stated that, on 27th January, 2013 he was called
by A.P.M.C. police station and his statement was recorded. This
witness also deposed that he knew the accused-appellant, who had
been residing in Room No.8 of Om Sai Niwas building as a tenant.
The family members of the victim were residing in Room No. 3 in
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the same building. The tenement of the accused-appellant and as
well as the deceased victim are in the ground floor of Om Sai Niwas
building.
42. Significantly there are inconsistencies between the statement
of this witness and the statements made by PW 4 and PW 5, who
did not say that the man dropping the bag seemed frightened. On
the other hand they said that the man did not arouse their
suspicion.
43. The 11th Prosecution Witness (PW 11), Arvind Madhavji
Gajara is the Panch in whose presence, the tenement of the
accused-appellant was searched. He deposed that on 25th January,
2013 he had gone to Koparigaon in connection with his business.
He saw that many persons had gathered near the Om Sai building.
It was about 5.00 p.m. The police constable Rane called this
witness. At that time the accused-appellant, a photographer and a
panch by the name of Patil were was also present. At the request of
the police he agreed to act and acted as Panch. The police took
him to room No.8 of Om Sai apartment. A police officer rang the bell
at the door. It was opened by a lady, who said that her name was
Nisha. The police officer told Nisha that they wanted to search the
house and asked whether she had any objection. Nisha replied that
she had no objection.
44. This witness said there was one room which was partitioned
and there was a kitchen. There was a sofa on which a bed sheet
was lying. They noticed blood stains on the bedsheet. There were
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also blood stains below the sofa set.
45. This witness deposed that one of the persons in the search
team scratched the blood stains to collect the dried blood. In the
presence of this witness, the blood stained sheet on the sofa set, a
cloth for cleaning the floor tiles lying on the window, a saree used
on the bed as a bed sheet were also packed. In all six articles were
seized and six labels were prepared. A bag in which the articles
were packed was separately marked. The evidence of this witness
only establishes that the tenement of the accused-appellant was
searched with the consent of the accused-appellant’s daughter and
some articles seized. During the search blood stains were noticed,
which were scraped for examination.
46. The 12th Prosecution Witness (PW 12), named Mustaqali
Asgarali Ansari, a Carpenter by profession stated that on 26th
January, 2013, he went to fill petrol in his motor-cycle at a petrol
pump near APMC police station at about 3.00 p.m. At that time, a
police constable, by name Mandole, called him and told him to
come to APMC Police Station. He went to the APMC police station
along with the constable. In the police station, one police officer by
name Bhong and another panch More, one lady police and three
police constables were present. The accused-appellant, whom this
witness identified in Court, was also present in the police station.
47. According to PW 12, in the police station, the accused
appellant made a statement that he had kept the dead body of the
girl in a bag and kept the said bag behind the staircase.
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48. PW 12 deposed that the accused-appellant was taken to the
building and from inside he took out clothes from the white bag,
the capacity of which might be 50 to 60 kgs. He identified the
clothes namely the black half pants and an orange shirt. PW 12
deposed that the clothes were taken out from the bag.
49. Significantly even though this witness (PW12) was a panch to
the seizure of the white bag, the printing inside the bag which the
PW claims to have seen, were not noticed by him.
50. The 13th Prosecution Witness Dr. Bhushan Vilasrao Jain
(PW 13) conducted the post mortem examination on the body of
the victim. He noticed the following injuries:
“(1) Lacerated wound seen over posterior vaginal
wall with width 0.5 c.m. muscle deem hymen torn at
6 O’ clock position reddish blood oozes out.
(2) Lacerated wound over right lateral vaginal wall
1 x 0.2 c.m. muscle deep reddish, blood oozes out.
(3) Two lacerated wounds seen over anal region at
12 O’clock and 3 O’clock position of size 2 x 1 c.m.
mucosa deep and 1 x 0.5 c.m. mucosa deep
respectively reddish.
(4) Two tiny abrasions seen over left maxillary
region below eyelid laterally 0.5 x 0.3 c.m. each
reddish.
(5) Aberated contusion over upper lip mucosal
aspect in a middle region 2.5 x 1.5.”
51. He deposed that all the injuries were ante-mortem in nature
and he further deposed of internal examination.
“2. On internal examination I noticed haemorrhage under
scalp over occipital region 5 x 3 c.m. reddish and
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meninges were congested. Brain matter congested and
-oedmatous. On cut section petechial haemorrhages
seen over white matter. Both lungs were congested and
oedematous with petechial haemorrhages.
3. Thoracic cavity contained dark fluid blood. Stomach
contained 200 cc. semi digested rice, dal sabu like food
material.
All visceral organs were congested.”
52. This witness deposed that they kept blood for DNA mapping.
Blood for grouping, nail clipping of both hands and plucked scalp
hair for grouping and detection of foreign body. They also kept
vaginal and anal swab for detection of sperms as also blood for
chemical analysis. He opined that the cause of death is asphyxial
death due to smothering associated with head injury and sexual
assault.
53. This witness deposed that the injuries mentioned in column
17 of the postmortem report were possible by repeated sexual acts
and forcible penetration of the penis in the vagina. The victim may
have suffered some of the injuries while she was trying to rescue
herself from the clutches of the culprit. The injuries referred to as
injury Nos. 4 and 5 in the postmortem report may have been
caused by the culprit by pressing the mouth of the victim with his
hands. The injury described in the Report as injury No.4 may have
been caused by finger nails.
54. This witness deposed that the injury shown in the postmortem
report as injury No.19 over the head and under the scalp could have
been suffered if the head had hit any hard object while the act of
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rape was committed.
55. PW-13 deposed that the injuries shown as injury Nos. 1 to 5
were sufficient to cause instant death. The injuries shown as injury
Nos. 4 and 5 could also cause death. The Cyanosis in finger nails,
petechial over brain and lungs and dark fluid blood were cardinal
signs of asphyxia.
56. In cross-examination, PW 13 said that there was no injury to
the brain substance. However, death was possible by reason of the
injuries that were seen. He, however, said in his cross-examination
that there was hemorrhage. This witness deposed that pressing of
mouth and nostril causes smothering which leads to asphyxia and
consequential death. In cross-examination, this witness said that
he had not taken blood sample of accused-appellant for the purpose
of DNA as blood sample was not produced before him. The
evidence of this witness clearly establishes that the victim was
raped and killed. There is nothing in his evidence that implicates
the accused-appellant .
57 The 14th Prosecution Witness (PW 14), a neighbour of the
complainant and the accused-appellant deposed that the accusedappellant had two daughters, two sons and one grand son, none of
whom stayed at home between 12 and 6 p.m. She deposed that the
accused-appellant used to stare at her by opening the door slightly
or by looking into the mirror and when she told this to another
neighbour, that neighbour told her that the accused-appellant was
in the habit of staring at women. She said that she did not say
21
anything to the accused-appellant, considering his old age. In cross
examination, this witness deposed that the accused-appellant did
not whistle at women nor did he tease the women of the building.
He used to keep his door open and look into a mirror. Her evidence
in cross-examination reveals that the accused-appellant was
arrested on 25th January, 2013 and on 26th January, 2013, one Arun
Pawar was arrested. This witness’s evidence, at best raises doubts
about the character of the accused-appellant.
58. The 15th Prosecution Witness (PW 15) a Head Constable
of the Crime Branch deposed that the Senior Police Inspector called
him and his colleagues for the purpose of investigation in relation to
the murder of the victim. He deposed that he reached Koparigaon
on 23rd January, 2013. He visited each room in Om Sai Building and
interrogated the residents. He had also given his mobile number to
the residents so that he could be contacted in case any information
was forthcoming.
59. This witness deposed that on 24th January, 2013, PW 19
Mahendra Rokade, son of the accused-appellant called him up and
told him that he was suspecting the involvement of his father, the
accused-appellant, in the rape and murder of the victim.
60. The PW-19 allegedly told this constable that on the night of
22nd January, 2013 his father was stressed up. He also said that on
an earlier occasion his father had tried to outrage the modesty of a
woman at his native place Dudhanoli. This witness further stated
that on the night of 24th January, 2013 this witness and another
22
police constable alongwith senior police inspector went to the Om
Sai Building on receiving secret information that the accusedappellant had come home. According to this witness the wife,
daughters and grandson of the accused-appellant and the accusedappellant were at home at that time. The accused-appellant was
found in stress. The wife of the accused-appellant said that the
accused-appellant had outraged the modesty of a woman at
Dudhanoli. The accused-appellant was taken to the office of the
crime branch. On 25th January, 2013, the accused-appellant
confessed that he had committed the crime. From the evidence of
the witness it can only be deduced that PW-19 had called him up
and expressed suspicion of involvement of the his father in the rape
and murder of the victim.
61. The 16th Prosecution Witness (PW 16), Dr. Prerana Anant
Thakur deposed that she had personally collected the blood of
accused-appellant and handed over the sealed container along with
the prescribed identification form which she had filled in herself, to
the police. She handed over the prescribed form and sealed packet
containing blood sample to police Naik B. No.1761 who took that
sample to Kalina Forensic Science Laboratory.
62. The 17th Prosecution Witness (PW 17), the owner of a
photo studio named Balaji Photo Studio deposed that he went along
with the police to take photographs of Room No.8 of Om Sai Niwas.
On 25th January 2013, he took photographs of the sofa and pillow
lying on the sofa on which there were blood stains. He took
23
photographs of the bed and the floor under the sofa where there
were blood stains. His camera was a digital camera. He got the
photographs printed and he handed over the photographs along
with memory card to the Investigating officer of the police station.
He said that he was paid Rs.350/- for the photographs. The PW-16
and PW 17 have also not implicated the accused-appellant.
63. The 18th Prosecution Witness (PW 18), Asha Dattatraya
Rokade, wife of the accused-appellant said that she was residing in
Room No.8 of Om Sai Building along with the accused-appellant,
their two sons, two daughters and a grand son (son of younger
daughter, whose husband had expired). She deposed that the
accused-appellant was unemployed and stayed at home alone,
while the other members of the family went out to work and the
grand child went to school. She said that on 22nd January, 2013
when she came back from work at around 7.30 p.m. she heard that
the victim was missing. She had dinner at about 1.00 a.m. after all
the family members returned, after which they went to sleep. She
deposed that after 2.00 a.m., her husband went out of the house.
On 23rd January, 2013 at about 7.00 a.m. police knocked at the door
of the house and inquired about the victim. On 23rd January, 2013
she left for work. When she left, her husband i.e., the accusedappellant and their daughter Nisha (PW 20) were at home but when
she came back home at about 7.30 p.m. she did not find her
husband. On inquiry, her daughter Nisha (PW 20) told her that the
accused-appellant had gone to his brother’s house. She further
24
deposed that on 23rd January, 2013 she had dinner and went to
sleep. On 24th January, 2013 when she went out to work her
husband i.e. the accused-appellant came back. After returning at
about 7.30 p.m., she made tea and served tea to the accusedappellant. While serving tea she asked the accused-appellant why
he was tensed up. He replied that he was not feeling well.
Thereafter she told him to go to hospital. The accused-appellant
went to Dr. Nilima Pawar.
64. This witness deposed that after her husband, the accusedappellant came back from the doctor, he told her that he had raped
and killed the victim. Thereafter at about 8.00 p.m. police took the
accused-appellant for inquiry. On 25th January, 2013, she was
informed by her son Mahendra that police had arrested her
husband. He said that the accused-appellant had confessed to the
crime before the police. The evidence of this witness is of
importance since she has deposed that the accused-appellant
confessed to her that he had raped and killed the victim.
65. Nothing much of substance has transpired from the evidence
of the 19th Prosecution Witness (PW 19), Mahendra, son of the
accused-appellant, except that he had called up the police and
informed the police that he suspected the involvement of his father,
the accused-appellant, in the rape and murder of the victim.
66. This witness reiterated the work schedule of the members of
the family and school hours of his nephew. He said that he had
heard that the victim had gone missing and had later heard that the
25
victim had been raped and murdered. The police came to the
building to make inquiries. This witness further deposed that when
he had heard that his father had suddenly gone to Kamothe he
became suspicious, in view of the past history of his father involving
an incident at Dudhanoli village. He further said that on 25th
January, 2013, the police contacted him and informed him that his
father had confessed to the crime. He also identified the articles
seized as Articles Nos.18-A, 19-A and 20-A. In cross examination,
this deponent deposed that on 23rd January, 2013 he was sleeping
on the bed of the inner room having partition. At that time he did
not find or see any stain on the bedsheet. The bedsheet used to be
changed every 4 or 5 days and covers of sofa set and cushion after
every two to three months. He also deposed that the flooring of the
house is washed and cleaned daily.
67. The 20th Prosecution Witness (PW 20), Nisha, daughter of
the accused-appellant deposed that on 25th January, 2013, in the
evening, police came to their house with experts from the Forensic
Laboratory and a photographer. After taking her permission, the
police seized sofa cover, cushion cover, bedsheet and duster cloth.
The expert found blood stains in the gap between the tiles on the
floor and on the sofa cover. The sofa cover, cushion cover and
bedsheet were stained with blood. All these articles were seized
and the police obtained her signature and the signature of her
father. She identified the sofaset cover, cushion cover, bed sheet
and the duster cloth for cleaning the floor. She also identified the
26
Bermudas of her father. She stated that when she was a young
child she came to know that her father had caught the hand of a
woman and therefore, the family had to leave the village Dudhanoli.
In cross examination, this witness said that her father never spoke
to her unnecessarily. She said that she cleans utensils and cleans
floor on every alternate day. She said that she had not noticed
anything abnormal on sofa, cushion or on the bed. Nothing
significant has transpired from the evidence of this witness except
that the tenement of the accused-appellant had been searched in
the presence of forensic experts and a photographer. Photographs
of the tenement were taken, some articles seized and samples of
blood scrapings collected for examination.
68. The 21st Prosecution Witness (PW 21), Ratnanjali
Ravindra Sarnobat, deposed that he had conducted the Test
Identification Parade (TIP) and the witnesses Bhagat, Govari and
Dalavi (PW-4 & PW-5) had identified the accused-appellant.
69. The 22nd Prosecution Witness (PW 22), the Sub-Inspector
of police at AMFC police station deposed that on 22nd January, 2013
he was on night duty from 9.00 p.m. onwards till 9.00 a.m. At about
9.15 a.m. the complainant and his wife gave a missing complaint in
respect of the victim. At about 2.30 a.m. when he was patrolling out
of the police station, he received a telephone call from the APMC
police station that the missing girl had been found but with no
movement. She was being taken to the Vashi Navi Mumbai
Municipal Corporation Hospital (NMMC). The doctor declared the girl
27
was dead after which the complainant filed an FIR. There is nothing
in the deposition of this witness which establishes or points at the
guilt of the accused-appellant. He only narrated the facts leading to
the missing report and the first information report, the condition of
the dead body of the victim, the seizure of articles taking of
photographs etc.
70. The 23rd Prosecution Witness (PW 23) deposed that he
had carried blood samples of accused-appellant to the Forensic
Science Laboratory, Kalina for DNA profiling along with
identification.
71. The 24th Prosecution Witness (PW 24) attached to APMC
police station as Police Naik deposed that he brought back the DNA
kit from the Forensic Science Laboratory, Kalina.
72. The 25th Prosecution Witness (PW 25), is the Assistant
Investigating Officer in the case. She deposed that as Assistant
Police Inspector she had investigated the case. On 23rd January,
2013 at about 5.00 a.m. she visited the spot and started making
inquiries. She recorded the statement of the mother of the
deceased victim (PW 2).
73. On 26th January, 2013 she recorded the statements of some
witnesses and recorded the supplementary statement of the mother
of the deceased. She also recorded the statements of the wife of
the accused-appellant, two daughters of the accused-appellant and
other witnesses. Nothing significant, which points to the guilt of the
accused-appellant has transpired from the evidence of PW-23, PW-
28
24 and PW-25.
74. The 26th Prosecution Witness (PW 26), the Senior Police
Inspector and Investigating Officer deposed that he reached Navi
Mumbai Municipal Corporation Hospital at about 3.00 a.m. after
which he took the complainant to the police station and recorded
the FIR. He deposed that on the basis of the FIR, Crime No.20 of
2013 was registered. PW-26 deposed that on 23rd January, 2013, he
sent Police Inspector Lavand to the spot and he recorded the spot
panchnama (Exh.30). He deposed that initially, the parents of the
victim had expressed suspicion against one Pawar who was taken in
custody. On investigation nothing was found against him and
accordingly report under Section 169 of the Criminal Procedure
Code was filed. On 24th January, 2013 this witness recorded the
statements of some witnesses. On 25th January, 2013, staff of the
crime branch produced the accused-appellant before this witness.
This witness interrogated the accused-appellant and arrested him
under panchnama. The clothes he was wearing at the time of his
arrest was seized under panchnama. The accused-appellant was
wearing blue full pants, Bermuda pants and a yellow shirt. This
witness further deposed that on 25th January, 2013 he called a team
from the Forensic Science Laboratory who seized six articles from
the house of the accused-appellant that is Article Nos.17-A, 18-A,
19-A, 20-A, and 21-A.
75. The seized articles were cushion covers, a cloth for cleaning
the floor, a saree used as a bed sheet which were sealed in six
29
packets. He deposed that experts from the Forensic Science
Laboratory collected dried blood from the floor tiles beneath the
sofa. The photographs of the sofa and other articles were taken at
the time of recording the spot panchnama. PW-26 further stated
that on 25th January, 2013 he got the accused-appellant medically
examined and he also recorded the statements of witnesses. On
26th January, 2013 the accused-appellant offered in the presence of
two panchas to show the place where he had put the clothes of the
victim in a bag, which was the debris was by the side of staircase of
the Om Sai Building. The statement of the accused-appellant was
recorded by this witness. The statement so recorded was signed by
Panchas and the accused-appellant affixed his thumb impression
thereon. After that the accused-appellant took the Investigating
Officer (PW 26) and others to the side of the staircase of the said
building where debris were lying and he took out a plastic bag in
which an orange shirt and black pants were found. The accusedappellant told the Investigating Officer that the shirt and the pants
were the clothes of the victim. This witness deposed that the
parents of the victim were called and they identified the clothes of
the victim. There were blood stains on the shirt, pants and the
plastic bag. The articles were seized and sealed in the presence of
Panchas, whose signatures were obtained on the panchanama
recorded on the spot.
76. This witness deposed that on 27th January, 2013 three
witnesses Devidas, Vinod Bhagat and Govari came to the APMC
30
police station and got their statements recorded. Thereafter a test
identification parade was arranged. On 27th January, 2013 he
seized the memory card produced by the photographer Rajesh Joshi
(PW 17). From the evidence of this witness, it transpires that blood
samples collected for DNA profile were duly sent to the forensic
laboratory. This witness deposed that during the investigation, it
transpired that the accused-appellant had raped the victim and
murdered her. After completion of investigation, this witness filed
chargesheet.
77. The 27th Prosecution Witness (PW 27), an Assistant
Chemical Analyzer in the Forensic Laboratory, Kalina deposed that
he went to APMC Police Station along with his team consisting of
four persons. The team went to Om Sai Building at Koparigaon.
The accused-appellant was also present along with the Police. In
the tenement of the accused-appellant there was one hall and
kitchen and in the said hall there was a partition. When the door
was opened they saw a sofa on the right. On careful inspection,
they found there were three cushions on the sofa and on the
cushion covers there were blood stains of the diameter 1 cm. to 2
cm. approximately. This witness deposed that he tested the blood
stains with the help of phenolphthalein and confirmed that the
stains were bloodstains. He deposed that three cushion covers
which were bloodstained were removed from the cushion and
handed over to the Investigating Officer. This witness deposed that
he saw that there were blood stains on the floor near the middle leg
31
of the sofa. He tested those stains with Phenolphthalein and
confirmed that they were blood stains. Dry blood was scraped and
collected with the help of cotton cloth and that cotton cloth was put
into an envelope which was packed in a polythene bag and handed
over to the Investigating Officer. This witness has deposed that the
team saw bloodstained cloth on the window which was also tested
and given to the Investigating Officer. There was one cot in the
inner side of the partition. The bed was covered with a saree. He
collected the scrapings of the blood stains on the saree for testing.
It was confirmed that those were blood stains but as the test of the
semen identification consumes much time, the saree cover was
handed over to the IO with the instructions to properly seal each
article and send the same to the Forensic Science Laboratory. This
witness also identified the articles.
78. As observed above, the oral evidence of PW-1 and PW-2 being
the parents of the deceased victim do not even suggest culpability
of the accused-appellant. The 3rd Prosecution Witness only a
Pancha who put her signatures on bag containing thread and
clothes of the victim. The 4th and the 5th Prosecution Witnesses
have claimed that they had gone to visit Parshuram Thakur at the
Shiv Sena Office at Koprigaon on the day of the incident. After they
came out of the office, they were standing below a shed and
talking, when they saw an old man come from the side of the
staircase of the building, holding a white bag which he kept in the
lane in front of the parking shed. These witnesses identified the
32
accused-appellant as the man carrying the bag. They also
identified the bag as the bag which the accused-appellant had been
carrying.
79. There are, however, serious loopholes in the evidence of these
two witnesses. First of all, these witnesses as per their own
statement saw a man carrying a white bag. They did not go near
the bag. No reliance can be placed on the purported identification
by the witnesses of the bag produced by the police, as the very
same bag which these witnesses had seen the accused-appellant
carrying. Furthermore, one of the witnesses stated in crossexamination that they did not suspect anything when they saw the
man carrying the bag. If the body of an eight year old child were
being carried in a bag that would have aroused some suspicion.
80. In any case, these witnesses deposed that the bag was left in
the lane opposite the parking shed, after they came out of the Shiv
Sena Office building, which was around 4.30 p.m. The naked body
of the deceased victim was first discovered in front of the door of
the tenement of the complainant at around 2.00 a.m. at night. If
the body had been dumped outside the door in the early evening,
the body would surely have been noticed earlier.
81. The evidence of PW 6 that the accused-appellant had tried to
outrage her modesty about 15 years ago, has no bearing to the
incident of rape and murder of the deceased victim. Admittedly
this witness had not lodged any police complaint against the
accused-appellant.
33
82. The evidence of PW7 is also of no relevance. This witness, a
Homeopathic Doctor, deposed that on examining the accusedappellant, she found him suffering from tension and his blood
pressure was slightly high. As per her own evidence she thought
that he might be suffering from acidity.
83. Similarly the evidence of PW 8, a doctor who had examined the
accused-appellant, does not contain anything material to establish
the guilt of the accused-appellant for the offence alleged.
84. The 9th Prosecution Witness is only a Panch in whose presence
the clothing of the accused-appellant was seized. He stated that
these were the clothes which the accused-appellant had been
wearing about 2 days after the incident. The 10th Prosecution
Witness only corroborated that the 4th and 5th witnesses had come
to his office and they had later told him what they had seen on 22nd
January, 2013.
85. Even though, as observed above, there is nothing in the
evidence of any of the witnesses, except the evidence of PW-12 and
PW-18 and the weak evidence of the PW Nos. 4 and 5 purported to
be corroborated by the PW-10, to prove the accused-appellant
guilty of the offences alleged, the forensic reports along with the
extra-judicial confession made by the accused-appellant to his wife
PW-18, clearly establishes the guilt of the accused-appellant.
86. The examination of the reports of the Directorate of Forensic
Laboratories, State of Maharashtra, Home Department, Vidyanagari,
34
Kalina, Santa Cruz (East) Mumbai being Ex. No. 22 to 25 and in
particular the examination report in Ex.25 indicates that DNA profile
of the blood detected on the plastic bag and the clothes and those
obtained from the nails of the victim are identical and are from one
and the same source of female origin. The DNA profile of semen
detected on the underwear (Bermudas), the bedsheet, vaginal swab
and anal swab of the victim are identical and from one and the
same source of male origin. The DNA analysis establishes beyond
reasonable doubt that the victim was raped by the accusedappellant.
87. By a judgment and order delivered on 6th and 7th June, 2013,
the learned Special Judge (Protection of Children from Sexual
Offences Act), Thane convicted the accused-appellant of offences
under Sections 363, 364, 367, 302, 201, 376, 376(2)(f) and 377 of
the Indian Penal Code read with Sections 4 and 6 of the Protection
of Children from Sexual Offences Act, 2012.
88. On 7th June, 2013, the accused-appellant was produced in
Court and heard on the question of sentence after which the
Trial Court ordered as follows:
“1. Accused Dattatray @ Datta Ambo Rokde is hereby
convicted of the offences punishable under Sections 363,
364, 367, 302, 201 of the Indian Penal Code and under
Sections 376, 376(2)(f), 377 of the Indian Penal Code r/w
Section 3 punishable under Section 4 of the Protection of
Children from Sexual Offences Act and under Sections
5(h)(i), 5(k), (I) (m) punishable under Section 6 of the
Protection of Children from Sexual Offences Act.
35
2. Accused is sentenced to death for an offence
punishable under Section 302 of the Indian Penal Code
and he be hanged by the neck till he is dead, subject to
confirmation by Hon’ble High Court of Judicature at
Bombay.
3. Accused is sentenced to suffer imprisonment for
life for offences under Sections 376, 376(2)(f), 377 of the
Indian Penal Code and offence u/s 3 punishable u/s 4 and
5(h)(i), 5(k), (I) (m) punishable under Section 6 of the
Protection of Children from Sexual Offences Act.
4. No separate sentence is awarded for offences
under Sections 363, 364, 367 and 201 of the Indian Penal
Code.
5. Accused is undertrial prisoner since 25.01.2013.
6. The Muddemal property be preserved till further
orders in reference from Hon’ble High Court.
7. The copy of this judgment be furnished to accused
free of cost forthwith.
8. The Registrar is directed to send the record and
proceedings of this Special Case No.1/2013 to Hon’ble
High Court for confirmation of death sentence.”
89. The Registrar was directed to send the records and
proceedings of the case to the High Court for confirmation of the
death sentence. The accused-appellant also filed an appeal against
the conviction and sentence being Criminal Appeal No.1202 of
2013.
90. The said Criminal Appeal No.1202 of 2013 was heard by a
Division Bench of Bombay High Court alongwith the death sentence
reference being Crl. Confirmation case No.6 of 2013 in Special Case
No.1 of 2013.
36
91. By a judgment and order dated 21st, 24th, 25th March, 2014,
the Division Bench of Bombay High Court confirmed the conviction
and sentence of death imposed under Section 302 of the Indian
Penal Code on the accused-appellant. The appeal of the accusedappellant was partly allowed only to the extent that the conviction
of the accused-appellant under Section 376 simplicitor was set
aside. The State has not filed any appeal against the judgment and
order of the Division Bench.
92. We have considered the evidence on record in detail and we
find absolutely no ground to interfere with the conviction of the
accused-appellant, as confirmed by the First Appellate Court.
93. As argued on behalf of the accused-appellant there may have
been embellishment of the evidence against the accused-appellant.
The evidence of the PWs 4 and 5 supported by PW-10 can never be
the basis of any conviction and is fraught with inherent
inconsistencies.
94. Even assuming that PWs 4 and 5 actually noticed the
accused-appellant carrying a bag and dumping it in the lane
opposite the car shed, this was in the evening of 22.1.2013
whereas the body of the victim was first seen by her parents
outside the door of their tenement, well past midnight, at around
2.00 a.m.
95. Admittedly, these two witnesses had not noticed anything
suspicious. A bag with the body of the child would, in all likelihood,
37
have aroused suspicion. No other material was found to suggest
that the body might have been concealed and/or wrapped and then
put in the bag identified by PW-4 and PW-5. Admittedly, these two
witnesses did not examine the bag carried by the accused-appellant
(if at all) closely. No credence can be placed on identification by the
PW 4 and 5, of the bag seized and produced by the Police, as the
same bag carried by the accused-appellant. The identification is
preposterous.
96. It is equally true that none of the witnesses except PW-18,
Asha, wife of the accused-appellant to whom the accused-appellant
confessed his guilt and the PW-12, a Pancha, in whose presence the
accused-appellant made extra judicial confession to the Police, is
relevant to the guilt of the accused-appellant. However, it is
reiterated at the cost of repetition that the forensic evidence
supported by the evidence of PW-18 establishes the guilt of the
appellant beyond reasonable doubt. We, thus, confirm the
conviction of the accused-appellant for the offences under Sections
302, 376(2)(f), 377 of the IPC read with Sections 3, 4 and 5 of the
POCSO.
97. The question is, whether death sentence imposed on the
accused-appellant for offences under Section 302 should be
confirmed or be commuted to life sentence, as argued on behalf of
the accused-appellant.
98. Counsel appearing on behalf of the accused-appellant
submitted that (i) the case did not fall under the category of the
38
rarest of rare cases; (ii) the accused-appellant was not effectively
defended before the Trial Court and the First Appellate Court; (iii)
the hearing given to the appellant under Section 235(2) of the Code
of Criminal Procedure on the quantum of sentence was not an
effective hearing; (iv) Counsel appearing on behalf of the accusedappellant before the Trial Court only submitted that there were no
eye witnesses to the crime, and a lesser punishment should be
imposed having regard to the age of the accused-appellant; (v) the
attention of the Court was not drawn to mitigating circumstances
for imposition of a lesser sentence and mitigating circumstances
were never considered; (vi) the accused-appellant was not given
the opportunity to file an affidavit placing on record mitigating
circumstances; (vii) Trial court did not make any effort to elicit facts
which could be mitigating circumstances against imposition of the
extreme penalty of death sentence; (viii) there was no finding
recorded either by Trial or the Appellate Court that there was no
alternative to the imposition of death sentence and (ix) the Trial
Court did not consider the possibility of reformation or rehabilitation
of the accused-appellant. Counsel argued that there was no reason
to suppose that the accused-appellant would be a continuing threat
to society unless hanged.
99. In Bachan Singh v. State of Punjab
1
, this Court, while
upholding the validity of death sentence held, that imprisonment
for life was the rule and death sentence an exception, to be
1 (1980) 2 SCC 684
39
imposed in the “rarest of rare” cases, recording special reasons. In
Bachan Singh (supra), this Court in effect held that before
exercising discretion to impose the extreme penalty of death
sentence, aggravating and mitigating circumstances are required to
be considered. Some of the mitigating factors would be the
extreme mental or emotional disturbance in which the offence
might have been committed, the possibility that the accusedappellant would not be a continuing threat to society, the possibility
of reformation and rehabilitation of the accused, mental defect or
disorder of the accused etc.
100. In Rajesh Kumar vs. State (through Govt. of NCT of
Delhi)
2
, this Court observed:-
“83. The ratio in Bachan Singh has received
approval by the international legal community and
has been very favourably referred to by David
Pannick in Judicial Review of the Death Penalty:
Duckworth (see pp. 104-05). Roger Hood and
Carolyn Hoyle in their treatise on The Death
Penalty, 4th Edn. (Oxford) have also very much
appreciated the Bachan Singh ratio (see p. 285).
The concept of “rarest of rare” which has been
evolved in Bachan Singh by this Court is also the
internationally accepted standard in cases of death
penalty.
84. Reference in this connection may also be made
to the right based approach in exercising
discretion in death penalty as suggested by
Edward Fitzgerald, the British Barrister. [Edward
Fitzgerald: The Mitigating Exercise in Capital Cases
in Death Penalty Conference (3-5 June), Barbados:
Conference Papers and Recommendations.] It has
been suggested therein that right approach
towards exercising discretion in capital cases is to
start from a strong presumption against the death
penalty. It is argued that “the presence of any
2 (2011) 13 SCC 706
40
significant mitigating factor justifies exemption
from the death penalty even in the most gruesome
cases” and Fitzgerald argues:
“Such a restrictive approach can be summarised
as follows: The normal sentence should be life
imprisonment. The death sentence should only be
imposed instead of the life sentence in the ‘rarest
of rare’ cases where the crime or crimes are of
exceptional heinousness and the individual has no
significant mitigation and is considered beyond
reformation.”
(Quoted in The Death Penalty, Roger Hood and Hoyle,
4th Edn., Oxford, p. 285.)
86. Taking an overall view of the facts in these
appeals and for the reasons discussed above, we
hold that death sentence cannot be inflicted on the
appellant since the dictum of the Constitution
Bench in Bachan Singh is that the legislative policy
in Section 354(3) of the 1973 Code is that for a
person convicted of murder, life imprisonment is
the rule and death sentence, an exception, and the
mitigating circumstances must be given due
consideration. Bachan Singh further mandates that
in considering the question of sentence the court
must show a real and abiding concern for the
dignity of human life which must postulate
resistance to taking life through law’s
instrumentality. Except in the “rarest of rare cases”
and for “special reasons” death sentence cannot
be imposed as an alternative option to the
imposition of life sentence”.
101. In Rajesh Kumar (supra), the accused was convicted of
assault and murder of two helpless children in the most gruesome
manner. This Court held that death sentence could not be inflicted,
reiterating that life imprisonment was the rule and death sentence
an exception only to be imposed in the “rarest of rare cases” and
for “special reasons” when there were no mitigating circumstances.
102. Section 235 of the Criminal Procedure Code (Cr.P.C.), reads as
follows:-
41
“235. Judgment of acquittal or conviction.—(1)
After hearing arguments and points of law (if any), the
Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless
he proceeds in accordance with the provisions of
Section 360, hear the accused on the question of
sentence, and then pass sentence on him according
to law.”
103. Section 235 (2) of the CrPC is not a mere formality. It is
obligatory on the part of the learned trial Judge to hear the accused
on the question of sentence and deal with it. To quote Bhagwati J.
in Santa Singh vs. State of Punjab
3
.
“2. …...This provision is clear and explicit and
does not admit of any doubt. It requires that in
every trial before a court of sessions, there must
first be a decision as to the guilt of the accused.
The court must, in the first instance, deliver a
judgment convicting or acquitting the accused. If
the accused is acquitted, no further question
arises. But if he is convicted, then the court has
to “hear the accused on the question of sentence,
and then pass sentence on him according to law”.
When a judgment is rendered convicting the
accused, he is, at that stage, to be given an
opportunity to be heard in regard to the sentence
and it is only after hearing him that the court can
proceed to pass the sentence.
3. This new provision in Section 235(2) is in
consonance with the modern trends in penology
and sentencing procedures. There was no such
provision in the old Code. Under the old Code,
whatever the accused wished to submit in regard
to the sentence had to be stated by him before
the argumentss concluded and the judgment was
delivered. There was no separate stage for being
heard in regard to sentence. The accused had to
produce material and make his submissions in
regard to sentence on the assumption that he
was ultimately going to be convicted. This was
most unsatisfactory. The legislature, therefore,
decided that it is only when the accused is
3 (1976) 4 SCC 190
42
convicted that the question of sentence should
come up for consideration and at that stage, an
opportunity should be given to the accused to be
heard in regard to the sentence. Moreover, it was
realised that sentencing is an important stage in
the process of administration of criminal justiceas important as the adjudication of guilt-and it
should not be consigned to a subsidiary position
as if it were a matter of not much consequence.
It should be a matter of some anxiety to the court
to impose an appropriate punishment on the
criminal and sentencing should, therefore, receive
serious attention of the court.
…..The reason is that a proper sentence is the
amalgam of many factors such as the nature of
the offence, the circumstances-extenuating or
aggravating- of the offence, the prior criminal
record, if any, of the offender, the age of the
offender, the record of the offender as to
employment, the background of the offender with
reference to education, home life, sobreity and
social adjustment, the emotional and mental
condition of ‘the offender, the prospects for the
rehabilitation of the offender, the possibility of
treatment or training of the offender, the
possibility that the sentence may serve as a
deterrent to crime by the offender or by others
and the current community need, if any, for such
a deterrent in respect to the particular type of
offence. These are factors which have to be
taken into account by the court in deciding upon
the appropriate sentence, and, therefore, the
legislature felt that, for this purpose, a separate
stage should be provided after conviction when
the court can hear the accused in regard to these
factors bearing on sentence and then pass proper
sentence on the accused.
4. ….The hearing on the question of sentence,
would be rendered devoid of all meaning and
content and it would become an idle formality, if
it were confined merely to hearing oral
submissions without any opportunity being given
to the parties and particularly to the accused, to
produce material in regard to various factors
bearing on the question of sentence, and if
necessary, to lead evidence for the purpose of
placing such material before the court.
43
104. In Santa Singh (supra), Bhagwati, J. set aside the sentence
of death and remanded the case to the Sessions Court with a
direction to pass appropriate sentence after giving an opportunity
to the petitioner in the aforesaid case of being heard with regard to
the question of sentence, in accordance with the provisions of
Section 235(2) CrPC.
105. In Dagdu and Others v. State of Maharashtra
4
, a threeJudge Bench of this Court referred to Santa Singh (supra) and held
that the mandate of Section 235(2) CrPC had to be obeyed in letter
and spirit. Chandrachud, J. held:-
“79. … The Court, on convicting an accused,
must unquestionably hear him on the question of
sentence. But if, for any reason, it omits to do so
and the accused makes a grievance of it in the
higher court, it would be open to that Court to
remedy the breach by giving a hearing to the
accused on the question of sentence. That
opportunity has to be real and effective, which
means that the accused must be permitted to
adduce before the Court all the data which he
desires to adduce on the question of sentence.
The accused may exercise that right either by
instructing his counsel to make oral submissions
to the Court or he may, on affidavit or otherwise,
place in writing before the Court whatever he
desires to place before it on the question of
sentence. The Court may, in appropriate cases,
have to adjourn the matter in order to give to the
accused sufficient time to produce the necessary
data and to make his contentions on the question
of sentence. That, perhaps, must inevitably
happen where the conviction is recorded for the
first time by a higher court.”
4 (1977) 3 SCC 68
44
106. In Machhi Singh & Others v. State of Punjab
5
, this
Court held:-
“38. … (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.”
107. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra
6
, this Court observed and held:-
“157. The doctrine of proportionality, which
appears to be the premise whereupon the
learned trial Judge as also the High Court laid its
foundation for awarding death penalty on the
appellant herein, provides for justifiable
reasoning for awarding death penalty. However,
while imposing any sentence on the accused the
court must also keep in mind the doctrine of
rehabilitation. This, considering Section 354(3) of
the Code, is especially so in the cases where the
court is to determine whether the case at hand
falls within the rarest of the rare case.
158. The reasons assigned by the courts below,
in our opinion, do not satisfy Bachan Singh test.
Section 354(3) of the Code provides for an
exception. General rule of doctrine of
proportionality, therefore, would not apply. We
must read the said provision in the light of Article
21 of the Constitution of India. Law laid down by
Bachan Singh and Machhi Singh interpreting
Section 354(3) of the Code should be taken to be
a part of our constitutional scheme.
159. Although the Constitutional Bench
judgment of the Supreme Court in Bachan Singh
did not lay down any guidelines on determining
which cases fall within the “rarest of rare”
category, yet the mitigating circumstances listed
in and endorsed by the judgment give reform and
5 (1983) 3 SCC 470
6 (2009) 6 SCC 498
45
rehabilitation great importance, even requiring
the State to prove that this would not be
possible, as a precondition before the court
awarded a death sentence. We cannot therefore
determine punishment on grounds of
proportionality alone. There is nothing before us
that shows that the appellant cannot reform and
be rehabilitated.
162. Further indisputably, the manner and
method of disposal of the dead body of the
deceased was abhorrent and goes a long way in
making the present case a most foul and
despicable case of murder. However, we are of
the opinion, that the mere mode of disposal of a
dead body may not by itself be made the ground
for inclusion of a case in the “rarest of rare”
category for the purpose of imposition of the
death sentence. It may have to be considered
with several other factors.
108. In Ajay Pandit and Another v. State of Maharashtra
7
,
this Court held:-
“47. Awarding death sentence is an exception, not
the rule, and only in the rarest of rare cases, the
court could award death sentence. The state of
mind of a person awaiting death sentence and the
state of mind of a person who has been awarded
life sentence may not be the same mentally and
psychologically. The court has got a duty and
obligation to elicit relevant facts even if the
accused has kept totally silent in such situations. In
the instant case, the High Court has not addressed
the issue in the correct perspective bearing in mind
those relevant factors, while questioning the
accused and, therefore, committed a gross error of
procedure in not properly assimilating and
understanding the purpose and object behind
Section 235(2) CrPC.”
109. In Mohinder Singh v. State of Punjab
8
, this Court held:-
“22. The doctrine of “rarest of rare” confines two
aspects and when both the aspects are satisfied
7 (2012) 8 SCC 43
8 (2013) 3 SCC 294
46
only then the death penalty can be imposed.
Firstly, the case must clearly fall within the ambit
of “rarest of rare” and secondly, when the
alternative option is unquestionably foreclosed.
Bachan Singh suggested selection of death
punishment as the penalty of last resort when,
alternative punishment of life imprisonment will be
futile and serves no purpose.
23. In life sentence, there is a possibility of
achieving deterrence, rehabilitation and retribution
in different degrees. But the same does not hold
true for the death penalty. It is unique in its
absolute rejection of the potential of convict to
rehabilitate and reform. It extinguishes life and
thereby terminates the being, therefore, puts an
end to anything to do with life. This is the big
difference between two punishments. Thus, before
imposing death penalty, it is imperative to
consider the same. The “rarest of rare” dictum, as
discussed above, hints at this difference between
death punishment and the alternative punishment
of life imprisonment. The relevant question here
would be to determine whether life imprisonment
as a punishment would be pointless and
completely devoid of any reason in the facts and
circumstances of the case. As discussed above, life
imprisonment can be said to be completely futile,
only when the sentencing aim of reformation can
be said to be unachievable. Therefore, for
satisfying the second aspect to the “rarest of rare”
doctrine, the court will have to provide clear
evidence as to why the convict is not fit for any
kind of reformatory and rehabilitation scheme”.
110. In Panchhi and Others v. State of U.P.
9
, this Court
observed:-
“20. … No doubt brutality looms large in the
murders in this case particularly of the old and
also the tender-aged child. It may be that the
manner in which the killings were perpetrated
may not by itself show any lighter side but that is
not very peculiar or very special in these killings.
Brutality of the manner in which a murder was
perpetrated may be a ground but not the sole
criterion for judging whether the case is one of
9 (1998) 7 SCC 177
47
the ‘rarest of rare cases’ as indicated in Bachan
Singh case.”
111. In Bantu v. State of M.P.
10
this Court found that there was
nothing on record to indicate that the appellant had any criminal
antecedents nor could it be said that he would be a grave danger to
the society at large despite the fact that the crime committed by
him was heinous. This Court held:-
“8. However, the learned counsel for the
appellant submitted that in any set of
circumstances, this is not the rarest of the rare
case where the accused is to be sentenced to
death. He submitted that age of the accused on
the relevant day was less than 22 years. It is his
submission that even though the act is heinous,
considering the fact that no injuries were found
on the deceased, it is probable that death might
have occurred because of gagging her mouth
and nosetrix [nostril] by the accused at the time
of incident so that she may not raise a hue and
cry. The death, according to him, was accidental
and an unintentional one. In the present case,
there is nothing on record to indicate that the
appellant was having any criminal record nor can
it be said that he will be a grave danger to the
society at large. It is true that his act is heinous
and requires to be condemned but at the same
time it cannot be said that it is the rarest of the
rare case where the accused requires to be
eliminated from the society. Hence, there is no
justifiable reason to impose the death sentence.”
(Emphasis supplied by us).
112. In Amit v. State of Maharashtra
11
this Court took into
consideration, the prior history of the appellant and noted that
there was no record of any previous heinous crime and also there
was no evidence that he would be a danger to society if the death
10 (2001) 9 SCC 615
11 (2003) 8 SCC 93
48
penalty was not awarded to him. The relevant finding (Paragraph
10) is extracted hereinbelow:-
“10. The next question is of the sentence.
Considering that the appellant is a young man, at
the time of the incident his age was about 20
years; he was a student; there is no record of any
previous heinous crime and also there is no
evidence that he will be a danger to the society, if
the death penalty is not awarded. Though the
offence committed by the appellant deserves
severe condemnation and is a most heinous
crime, but on cumulative facts and circumstances
of the case, we do not think that the case falls in
the category of rarest of the rare cases…….”
113. In the case of Rahul v. State of Maharashtra12 this Court
noted that there was no adverse report about the conduct of the
appellant therein either by the jail authorities or by the probationary
officer and that he had no previous criminal record or at least
nothing was brought to the notice of the Court. This Court observed
as follows:-
“4. We have considered all the relevant aspects of
the case. It is true that the appellant committed a
serious crime in a very ghastly manner but the
fact that he was aged 24 years at the time of the
crime, has to be taken note of. Even though, the
appellant had been in custody since 27-11-1999
we are not furnished with any report regarding the
appellant either by any probationary officer or by
the jail authorities. The appellant had no previous
criminal record, and nothing was brought to the
notice of the Court. It cannot be said that he would
be a menace to the society in future. Considering
the age of the appellant and other circumstances,
we do not think that the penalty of death be
imposed on him.”
114. Similarly, in Surendra Pal Shivbalakpal v. State of
12 (2005) 10 SCC 322
49
Gujarat
13
the absence of any involvement in any previous criminal
case was considered to be a factor to be taken into consideration
for the purposes of awarding the sentence to the appellant therein.
This Court held :
“13. The next question that arises for consideration
is whether this is a “rarest of rare case”; we do not
think that this is a “rarest of rare case” in which
death penalty should be imposed on the appellant.
The appellant was aged 36 years at the time of the
occurrence and there is no evidence that the
appellant had been involved in any other criminal
case previously and the appellant was a migrant
labourer from U.P. and was living in impecunious
circumstances and it cannot be said that he would
be a menace to society in future and no materials
are placed before us to draw such a conclusion. We
do not think that the death penalty was warranted
in this case. We confirm conviction of the appellant
on all the counts, but the sentence of death penalty
imposed on him for the offence under Section 302
IPC is commuted to life imprisonment.”
115. In Mukesh and Another v. State (NCT of Delhi) and
Others
14
, a three-Judge Bench of this Court considered the earlier
judgments of this Court referred to above and deemed it
appropriate to give opportunity to the accused to file affidavits to
bring on record mitigating circumstances for reduction of the
sentence.
116. The accused-appellant was produced before the Trial court for
hearing under Section 235(2) of the Code of Criminal Procedure the
day after the judgment and order of his conviction was passed. The
accused-appellant, it appears, did not make any submission on the
point of sentence. This is recorded by the Trial Court. The
13 (2005) 3 SCC 127
14 (2017) 3 SCC 717
50
accused-appellant only pleaded ‘not guilty’ submitting that there
was no eye witness to the crime. The Trial Court has recorded that
Advocate Waghachadu, the learned Advocate appearing for the
accused-appellant submitted that “considering the fact that
accused is 53 years old leniency be shown to accused” in awarding
death sentence.
117. The Trial Court has accepted the submission of the learned
Special Public Prosecutor that there were no mitigating
circumstances to award life imprisonment instead of death
sentence. The Special Public Prosecutor submitted that the offences
had been committed with extreme depravity.
118. It may be pertinent to note that in awarding death sentence,
the trial court referred to and relied upon two judgments of this
Court of affirmation of death sentence, that is, Rajendra
Prahladrao Wasnik v. State of Maharashtra
15 and Mohd.
Manan @ Abdul Mannan v. State of Bihar
16
. On review of both
the judgments, death sentence has been commuted to
imprisonment for life.
119. In Haru Ghosh vs. State of West Bengal
17
, this Court
commuted death sentence to life imprisonment in the case of a
dastardly murder of two helpless persons for no fault of theirs. This
Court, however, in commuting death sentence took into
consideration the following factors:-
15 R.P. (Crl) No. 306-307 of 2013
16 Case NO. R.P (Crl) No. 308 of 2011 in Crl. A. No. 379 of 2009
17 (2009) 15 SCC 551
51
“i. There was no pre-meditation on the part of the
accused;
ii. The act was on the spur of the moment;
iii.The accused was not armed with any weapon;
iv. It was unknown under what circumstances the
accused had entered the house of the deceased and
what prompted him to assault the boy; and
v. The cruel manner in which the murder was
committed could not be the guiding factor and the
accused himself had two minor children.”
120. In Haru Ghosh (supra), this Court observed, “….the cruel
manner in which the murder was committed and the subsequent
action on the part of the accused in severing the parts of the body
of the deceased, do not by themselves become the guiding factor
in favour of death sentence.”
121. In Lehna vs. State of Haryana
18
, even though three lives
had been lost by reason of the crime, this Court modified the
punishment by commuting death sentence to life imprisonment,
observing that there was no evidence of any diabolic planning to
commit the crime, though the act was cruel.
122. In this case too there is no evidence at all of any diabolic
planning to commit the crime though the crime was undoubtedly
cruel and heinous. The circumstances in which the victim entered
the tenement of the accused-appellant are not known. There is no
evidence to show that the accused-appellant took the victim to his
tenement. Though unlikely, she might even have gone to his
tenement on her own.
18 (2002) 3 SCC 76
52
123. Under the Indian Penal Code and, in particular, Section 299
thereof, whoever causes death by doing an act either with the
intention of causing death or with the intention of causing such
bodily injury as is likely to cause death or with the knowledge that
he is likely, by such act, to cause death, commits the offence of
culpable homicide.
124. As per the definition of Section 300 of the IPC, except in
cases excepted thereafter, culpable homicide is murder if the act by
which the death is caused (i) is done with the intention of causing
death or (ii) if it is done with the intention of causing such bodily
harm as the offender knows to be likely to cause the death of the
person to whom the harm is caused or (iii) if the act is done with
the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death or (iv) if the person committing the act knows
that it is so imminently dangerous that it must, in all probabily,
cause death or such bodily injury as is likely to cause death and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
125. As a mature man, over fifty years of age, the accusedappellant should have known that the rape of a five year old child
by an adult was dangerous and could lead to such injuries, as was
in all probability likely to cause death.
126. The death of the deceased victim was not caused under any
provocation, not to speak of sudden provocation. No such defence
53
has been taken by the accused-appellant. Nor is it anybody’s case
that the death was caused in legitimate exercise in good faith of
any right of the accused-appellant, whether of private defence or
otherwise. The death has been caused without any provocation.
127. The totality of the injuries support the finding of the Trial
Court and the First Appellate Court that the accused-appellant
murdered the deceased victim. Though the act of the accused
squarely amounts to rape and murder, there is not a scrap of
material to show that the intention of the accused-appellant was to
kill the minor child.
128. The PW-1, Dr. Bhusan Jain who had prepared the post mortem
report opined that the cause of death was asphyxia due to
smothering, associated with head injuries and sexual assault. Dr.
Bhusan Jain deposed that all the 5 injuries were possible by
repeated sexual acts and forceful penetration. He opined that all
the injuries were sufficient to cause instant death in the ordinary
course.
129. Being a man of about 50 years of age, the accused-appellant
should have known that repeated sexual assault could have led to
the death of the victim and in fact did lead to the death of the
victim, only five years of age. The accused-appellant has rightly
been convicted of murder apart from child rape. However, there is
no evidence at all direct or circumstantial which establishes that the
intention of the accused-appellant was to kill the deceased victim.
130. Considering the totality of the evidence before us, we uphold
54
the conviction of the accused-appellant. However, in view of the
evidence of the post mortem report of Dr. Bhusan Jain, we deem it
appropriate to modify the sentence by reducing the same to
imprisonment for life.
131. There can be no doubt that rape and murder of a 5 years old
girl shocks the conscience. It is barbaric. There is, however, no
evidence to support the finding that the murder was pre-meditated.
The petitioner did not carry any weapon. The possibility that the
accused-appellant might not have realized that his act could lead to
death cannot altogether be ruled out. Moreover, the Trial Court has
apparently not considered the question of whether the crime is the
rarest of rare crimes as mandated by the Supreme Court in Bachan
Singh (supra).
132. In Review Petition (Crl.) No.306-307 of 2013 (Rajendra
Prahladrao Wasnik v. State of Maharashtra) the Court
commuted the death sentence, in a case of rape and murder of a
three year old child to life imprisonment, inter alia, observing that
the case did not fall in the category of the rarest of the rare.
133. As argued by learned counsel appearing on behalf of the
petitioner, the High Court found the offence to be in the category of
the rarest of rare cases, having regard to the nature of the offence
and the age of the victim.
134. Counsel for the accused-appellant submitted that the
brutality of the crime and age of the victim was not ground enough
to inflict death sentence. Learned counsel submitted that the
55
petitioner had been convicted on circumstantial evidence, based on
faulty investigation.
135. However, as observed above, the forensic evidence
construed in the light of the evidence of PW-18, Asha, wife of the
accused-appellant, that the accused-appellant had confessed to the
crime to her, establishes the guilt of the accused-appellant and
death sentence can be imposed even where conviction is based on
circumstantial evidence, provided the case falls in the category of
the rarest of rare and there are no mitigating circumstances and no
possibility of reform or rehabilitation of the convict.
136. On analogy of the reasoning in Review Petition (Crl) No. 306-
307 of 2013 in the case of Rajendra Prahladrao Wasnik v.
State of Maharashtra, this Court is constrained to hold that this
case does not fall in the category of the rarest of rare cases.
Moreover, the accused-appellant was not defended effectively. The
lawyer representing the accused-appellant only pleaded not guilty,
emphasizing that there was no eye witness to the incident and
sought leniency only on the ground of the age of the accusedappellant which was 53 years.
137. The accused-appellant neither sought nor was given the
opportunity to file any affidavit placing on record relevant
mitigating circumstances. The legal assistance availed by the
accused-appellant was patently not satisfactory and he was not
accompanied by a social worker. No attempt was made to place on
record mitigating circumstances. No argument was advanced to
56
the effect that there was no similar case against the accusedappellant. In the absence of any arguments, the Trial Court did not
consider the question of whether the accused-appellant could be
reformed.
138. Considering the nature of the crime against a five year old
child, the Trial Court imposed the extreme penalty of death without
deciding the question of whether there was no alternative to
imposing death sentence on the accused-appellant. There is no
finding that in the absence of death sentence, the accusedappellant would continue to be a threat to the society. The question
of whether the accused-appellant could be reformed, had not at all
been considered.
139. As held in Dagdu (supra) irrespective of whether these
issues were raised on behalf of the accused, the Court is obliged on
its own to elicit facts relevant to the question of existence of
mitigating circumstances. The Court made no attempt to elicit any
facts relevant to the sentence.
140. For effective hearing under Section 235(2) of the Code of
Criminal Procedure, the suggestion that the court intends to impose
death penalty should specifically be made to the accused, to enable
the accused to make an effective representation against death
sentence, by placing mitigating circumstances before the Court.
This has not been done. The Trial Court made no attempt to elicit
relevant facts, nor did the Trial Court give any opportunity to the
petitioner to file an affidavit placing on record mitigating factors. As
57
such the petitioner has been denied an effective hearing.
141. Contrary to the dictum of this Court, inter alia, in Dagdu
(supra) and Santa Singh (supra) the petitioner was not given a
real, effective and meaningful hearing on the question of sentence
under Section 235(2) of the Cr.P.C. The death sentence imposed on
the petitioner is liable to be commuted to life imprisonment on this
ground.
142. There can be no doubt that the rape and murder of a five
years old child is absolutely heinous and barbaric, but as observed
above, it cannot be said to be in the category of rarest of rare
cases.
143. In Mulla and Another v. State of U.P.
19
, this Court has
affirmed that it is open to the Court to prescribe the length of
incarceration. This is especially true in cases where death sentence
has been replaced by the life imprisonment. This Court observed,
“the court should be free to determine the length of imprisonment
which will suffice the offence committed.”
144. Even though life imprisonment means imprisonment for entire
life, convicts are often granted reprieve and/or remission of
sentence after imprisonment of not less than 14 years. In this case,
considering the heinous, revolting, abhorrent and despicable nature
of the crime committed by the appellant, we feel that the appellant
should undergo imprisonment for life, till his natural death and no
remission of sentence be granted to him.
19 (2010) 3 SCC 508
58
145. For the above reasons, we are of the view that the present
appeals are one of such cases where we would be justified in
holding that confinement till natural life of the accused-appellant
shall fulfil the requisite criteria of punishment considering the
peculiar facts and circumstances of the present case. Accordingly,
the death sentence awarded by the trial court is hereby modified to
“life imprisonment” i.e., imprisonment for the natural life of the
appellant herein. The appeals are allowed accordingly to the extent
indicated above.
.……………................................J.
(N. V. RAMANA)
.…………...................................J.
(DEEPAK GUPTA)
…………….................................J.
(INDIRA BANERJEE)
FEBRUARY 21, 2019

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