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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 523 OF 2010
Neel Kumar @ Anil Kumar ....Appellant
Versus
The State of Haryana ....Respondent
J U D G M E N T
Dr. B. S. CHAUHAN, J .
1. This criminal appeal has been preferred against the judgment
and order dated 17.7.2009 passed by the High Court of Punjab and
Haryana at Chandigarh in Criminal Appeal No. 268-DB of 2009, by
which it has affirmed the conviction of the appellant under Sections
302/376(2)(f) and 201 of Indian Penal Code, 1860 (hereinafter
referred as `IPC’) and accepted the death reference made by the
Additional Sessions Judge, Yamuna Nagar at Jagadhari vide
judgments and orders dated 2.3.2009/6.3.2009 and confirmed the
sentence of death.Page 2
2. Facts and circumstances giving rise to this appeal are that :
A. Smt. Roopa Devi (PW.3) wife of Neel Kumar @ Anil
Kumar – appellant, had gone to her parental home at village Kesri
alongwith her minor son on 26.6.2007 leaving her two children i.e.
Sanjana, daughter, 4 years old and Vishal, son, 2 years old at her
matrimonial home with her husband – appellant. She had to return
back on the same day but could not return and stayed at her parental
home. On the same day, she received information by telephone at
4.00 p.m. from her brother-in-law Ramesh Kumar that her husband
had committed rape upon her 4 years old daughter Sanjana. Roopa
Devi (PW.3) came back to her matrimonial home on the next day i.e.
27.6.2007 alongwith 5-7 persons including her family members and
neighbours and found her daughter Sanjana, victim, in an injured
condition. The Panchayat was convened to resolve the problems.
However, the Panchayat could not resolve the dispute, therefore,
Roopa Devi (PW.3), complainant, returned to her parental home
alongwith accompanying persons leaving her injured daughter
Sanjana and son Vishal in the custody of the appellant at her
matrimonial home. Roopa Devi (PW.3) wanted to take her injured
daughter for medical help, but the appellant and his family members
restricted her and even tried to snatch her 15 days old son from her.
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B. Roopa Devi (PW.3) received a telephone call again from her
brother-in-law Ramesh Kumar on 28.6.2007 informing her that
appellant had killed her daughter Sanjana. She came there alongwith
her brother Gulla (PW.4) and lodged the report to P.S. Bilaspur
against the appellant for committing the rape on her 4 years old
daughter Sanjana on 26.6.2007 and against her brother-in-laws and
appellant for committing her murder on 27/28.6.2007 and
concealing her dead body. Thus, on her complaint, a case under
Sections 376(2)(f), 302, 201/34 IPC vide FIR No. 91 dated
28.6.2007 at Police Station Bilaspur (Haryana) was registered.
C. Immediately, thereafter, on the same day i.e. 28.6.2007, on
the application moved by the Investigation Officer, the Deputy
Commissioner, Yamuna Nagar, authorised Shri Narender Singh,
SDM, Jagadhari to pass an order of exhumation of the dead body
from the graveyard and on such order being passed, the dead body
was recovered from the graveyard. It was photographed and an
inquest report was prepared. Dead body was sent for post-mortem
examination. The requisite plan of place of recovery of dead body
was prepared. The Investigating Officer inspected the place of
occurrence on 29.6.2007 and prepared the site plan. The appellant
and his brothers were arrested on 30.6.2007. Appellant was
medically examined and on his disclosure statement, the
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Investigating Officer recovered one blood stained bed sheet from his
house and further a gunny bag containing one Pajama, blood stained
piece of cloth, pant, shirt and one pillow from a rainy culvert near
Majaar of Peer on Kapal Mochan Road (Exts. P-23 and P-25).
D. After filing the chargesheet, the case was committed to the
Court of Sessions and on conclusion of the trial, the learned Sessions
Judge vide judgment and order dated 2.3.2009 acquitted all other coaccused but convicted the appellant under Sections 302, 376(2)(f)
and 201 IPC and vide order dated 6.3.2009 awarded death sentence
under Section 302 IPC, life imprisonment under Section 376(2)(f)
IPC and rigorous imprisonment for 3 years for the offence under
Section 201 IPC.
E. Being aggrieved, the appellant preferred Criminal Appeal
No. 268-DB of 2009 in the High Court of Punjab and Haryana at
Chandigarh, which was dismissed by the impugned judgment and
order dated 17.7.2009 confirming the death sentence upon reference.
Hence, this appeal.
3. Mr. Shekhar Prit Jha, learned counsel appearing for the
appellant, has submitted that appellant has falsely been enroped in
the offence by the complainant Roopa Devi (PW.3) as the
relationship between the husband and wife had been very strained.
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Even, subsequently, she filed divorce petition against the appellant.
It is quite unnatural that once the complainant Roopa Devi (PW.3)
had come from her parental house to her matrimonial home, then, on
being informed about the rape by the appellant upon their minor
daughter of 4 years of age, the complainant would go back to her
parental house leaving the girl in the custody of the appellant and
that too, when she was suffering from serious vaginal injuries.
Since, the evidence of the complainant and her brother Gulla (PW.4)
has been disbelieved in respect of four brothers of the appellant and
they have been acquitted, the same evidence could not have been
relied upon for convicting the appellant. When the complainant left
for her parental house on 27.6.2007, the children had been in the
custody of appellant’s brother Ramesh Kumar and, therefore, there
was no possibility of the appellant committing Sanjana’s murder. It
is by no means a case which falls in the category of rarest of rare
cases warranting the death sentence. The appeal deserves to be
allowed.
4. On the contrary, Mr. Kamal Mohan Gupta, learned counsel
appearing for the respondent State, has vehemently opposed the
appeal contending that the appellant has committed most heinous
crime, if he can commit the rape of his own 4 years old daughter, the
society cannot be safeguarded from such a person. The manner in
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which the offence has been committed and the nature of injuries
caused to the prosecutrix makes it evident that it is a rarest of rare
case wherein no punishment other than death sentence could be
awarded, thus, the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. Smt. Roopa Devi (PW.3), complainant has lodged the FIR
dated 28.6.2007, giving the complete version regarding both the
criminal acts i.e. rape as well as murder of Sanjana. This witness
also gave details of the Panchayat convened to resolve the dispute
and as the same was not resolved, Roopa Devi (PW.3), complainant,
went back to her parental home leaving the two minor children with
appellant. She came back on receiving the information about the
death of her daughter next day and lodged the complaint. On the
basis of the said complaint, FIR was registered on 28.6.2007 at 3.20
p.m. and investigation ensued. There is evidence on record to show
that after getting the permission on the order of Deputy
Commissioner, Yamuna Nagar, the SDM concerned passed the order
of exhumation of the dead body of Sanjana and it was sent for postmortem examination. The post-mortem report suggested the
following injuries on her body:
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“Lacerated wound present in vagina extending from
anus to urethral opening admitting four fingers of
size 6 x 4 cms. Underlying muscles and ligaments
were exposed and anus was also torned and on
dissection uterus was perforated in the abdomen”.
7. The prosecution case has been supported by Gulla (PW.4),
brother of the complainant, and further got support from the contents
of the divorce petition filed by Roopa Devi (PW.3) complainant,
subsequently, wherein it had clearly been stated that the appellant
had raped and murdered their 4 years old daughter Sanjana and in
that respect, the case was pending in the criminal court. The
recoveries had been made by Shri Suraj Bhan (PW.17), Investigating
Officer on the basis of disclosure statement made voluntarily by the
appellant.
8. Accused Ramesh Kumar, brother of the appellant who had
also faced trial had supported the case of the prosecution to the
extent that he informed Roopa Devi (PW.3), complainant at Kesri
about the commission of rape by the appellant on his daughter and
further deposed that on hearing such a news she had come to
Bilaspur.
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9. Dr. Ashwani Kashyap (PW.2) conducted autopsy on the dead
body of the deceased victim and as per his testimony and the postmortem report (Ext.P3) the cause of death was asphyxia because of
throttling which was ante-mortem in nature and sufficient to cause
death in ordinary course of events. He also found vaginal and anal
wounds on the deceased.
10. Dr. Rajeev Mittal (PW.1) medically examined the appellant
and as per his report there was no external injury on the genitals of
the appellant. However, he opined that mere absence of injury on
private parts of the appellant was no ground to draw an inference
that he had not committed forcible sexual intercourse with the
victim.
11. Mukesh Garg (PW.11), Sarpanch of village Bilaspur has
stated that the S.H.O. has narrated the facts of the case to him and
the exhumation of the dead body from the graveyard was done in
pursuance of the order of the SDM, Jagadhari. The dead body had
been buried by Neel Kumar (appellant) after committing rape and
murder of the victim. Thus, this witness was associated in the
investigation at the time of exhumation of the dead body.
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12. Narender Singh (PW.12), SDM proved the report of exhumation of the dead body (Ext. P11) and stated that he carried out
the same on getting the direction from the Deputy Commissioner.
Ish Pal Singh (PW.15), Head Constable and Joginder Singh (PW.16)
have supported the prosecution case being the witnesses of arrest and
recovery of incriminating material at the voluntary disclosure
statement of the appellant.
13. Madan (PW.14) was examined by the prosecution as an eyewitness for the murder of Sanjana. However, he turned hostile and
he did not support the case of the prosecution.
14. Suraj Bhan (PW.17), Investigating Officer deposed that he
had recovered the dead body from the graveyard on the written
permission of the SDM and the same was sent for the post-mortem
after preparing the inquest report under Section 174 of Code of
Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’) He had
recorded the statement of witnesses under Section 161 Cr.P.C. He
inspected the spot of occurrence on 29.6.2007, prepared the site plan
and on the next day i.e. on 30.6.2007, arrested the appellant
alongwith his brothers. It was at that time the appellant in
interrogation made disclosure statement (Ext. P-23) and in pursuance
thereof, he recovered the incriminating material as referred to
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hereinabove. The said articles were taken into possession vide
recovery memo Ext. P-25 and sent for FSL report. Subsequently, the
positive report was received.
15. The trial court found the testimonies of Roopa Devi (PW.3)
complainant, Gulla (PW.4), maternal uncle of the victim, Dr.
Ashwani Kashyap (PW.2), Dr. Rajiv Mittal (PW.1) fully reliable and
came to the conclusion that it was quite natural that Sanjana
deceased could have made oral dying declaration before her mother
Roopa Devi (PW.3), complainant. However, even if it is ignored,
there were various circumstances against the appellant. The court
enumerated the said incriminating circumstances as under:
(I) The victim was in the custody of accused Neel Kumar @
Anil Kumar.
(II) No explanation from the side of this accused as to how
such severe injuries were suffered by the victim and how she
met with death as these facts were in his special knowledge
alone.
(III) Non information of the crime by the accused to the
police or other members of the family.
(IV) Recovery of the blood stained clothes of the victim and
the accused from the possession of accused on his disclosure
statement.
(V) Presence of blood on the clothes of the accused and no
explanation thereof.
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(VI) Abscondance of the accused after the occurrence.
(VII) Strong motive against the accused for murder as
charges of rape were being raised against him.
16. The learned Sessions Court further remarked that as the
victim was in the custody of the appellant, there had been no
explanation from the side of the accused as to how such severe
injuries were suffered by the victim and how she met with death as
these facts were in his special knowledge alone. The provisions of
Section 106 of the Indian Evidence Act, 1872 (hereinafter called
‘Evidence Act’) were fully applicable in this case. Appellant was
guardian of the child and was duty bound to safeguard the victim.
The accused had kept mum and had not given any information to
any law enforcing agency or even to the mother of the victim. It
comes out from the statement of Roopa Devi (PW.3) that the
information about rape and murder to her was telephonically given
by co-accused Ramesh Kumar. If somebody else would have
committed the offence it was but natural that appellant Neel
Kumar@ Anil Kumar must have taken steps to initiate the legal
action to find out the culprit. The silence on his part in spite of such
grave harm to his daughter is again a very strong incriminating
circumstance against him.
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The High Court has agreed with the findings recorded by the
trial court and confirmed the death sentence after re-appreciating the
evidence.
17. In our opinion, the courts below have taken a correct view so
far as the application of Section 106 of the Evidence Act is
concerned. This Court in Prithipal Singh & Ors. v. State of
Punjab & Anr. (2012) 1 SCC 10, considered the issue at length
placing reliance upon its earlier judgments including State of West
Bengal v. Mir Mohammad Omar & Ors. etc.etc., AIR 2000 SC
2988; and Sahadevan @ Sagadevan v. State rep. by Inspector of
Police, Chennai, AIR 2003 SC 215 and held as under:
“That if fact is especially in the knowledge of any
person, then burden of proving that fact is upon
him. It is impossible for the prosecution to prove
certain facts particularly within the knowledge of
the accused. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the section
would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of
his special knowledge regarding such facts, failed to
offer any explanation which might drive the court to
draw a different inference. Section 106 of the
Evidence Act is designed to meet certain exceptional
cases, in which, it would be impossible for the
prosecution to establish certain facts which are
particularly within the knowledge of the accused”.
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(See also: Santosh Kumar Singh v. State through CBI, (2010) 9
SCC 747; and Manu Sao v. State of Bihar, (2010) 12 SCC 310).
Thus, findings recorded by the courts below in this regard stand
fortified by the aforesaid judgments.
18. A shirt and pant belonging to the appellant recovered on the
basis of his disclosure statement (Ext. P23) and taken into possession
vide Memo Ext. P25 were sent to the FSL for examination. Report
of FSL (Ext.P18) shows that shirt and pant of the appellant were
stained with blood. However, no explanation has been given by the
appellant as to how the blood was present on his clothes.
19. In Pradeep Singh v. State of Rajasthan AIR 2004 SC
3781, accused had not given any explanation for the presence of
blood stains on his pant and shirt. He had simply pleaded false
implication. Presence of blood on his clothes was found to be
incriminating circumstance against him.
It is the duty of the accused to explain the incriminating
circumstance proved against him while making a statement under
Section 313 Cr.P.C. Keeping silent and not furnishing any
explanation for such circumstance is an additional link in the chain
of circumstances to sustain the charges against him. Recovery of
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incriminating material at his disclosure statement duly proved is a
very positive circumstance against him. (See also: Aftab Ahmad
Anasari v. State of Uttaranchal, AIR 2010 SC 773).
20. In view of the above, we do not find any cogent reason to take
a view different from the view taken by the courts below and this
leads us to the further question regarding the sentence as to
whether it could be a rarest of rare case where imposition of death
penalty is warranted.
21. The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability. Before opting for the death
penalty the circumstances of the offender also require to be taken
into consideration alongwith the circumstances of the crime for the
reason that life imprisonment is the rule and death sentence is an
exception. The penalty of death sentence may be warranted only in a
case where the court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The 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 mitigating
circumstances before option is exercised.
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22. After considering the issue at length, this
court in State of Maharashtra v.
Goraksha Ambaji Adsul, AIR 2011 SC
2689, held as under:
“Awarding of death sentence amounts to taking
away the life of an individual, which is the most
valuable right available, whether viewed from the
constitutional point of view or from the human
rights point of view. The condition of providing
special reasons for awarding death penalty is not to
be construed linguistically but it is to satisfy the
basic features of a reasoning supporting and
making award of death penalty unquestionable. The
circumstances and the manner of committing the
crime should be such that it pricks the judicial
conscience of the court to the extent that the only
and inevitable conclusion should be awarding of
death penalty.”
(See also: Bachan Singh v. State of Punjab AIR 1980 SC 898;
Machchi Singh & Ors. v. State of Punjab AIR 1983 SC 957; and
Devender Pal Singh v. State NCT of Delhi & Anr. AIR 2002 SC
1661).
23. A similar view has been taken by this Court in Haresh
Mohandas Rajput v. State of Maharashtra (2011) 12 SCC 56
observing as under:
“The rarest of the rare case” comes when a convict
would be a menace and threat to the harmonious
and peaceful coexistence of the society. The crime
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may be heinous or brutal but may not be in the
category of “the rarest of the rare case”. There
must be no reason to believe that the accused
cannot be reformed or rehabilitated and that he is
likely to continue criminal acts of violence as would
constitute a continuing threat to the society. The
accused may be a menace to the society and would
continue to be so, threatening its peaceful and
harmonious coexistence. The manner in which the
crime is committed must be such that it may result in
intense and extreme indignation of the community
and shock the collective conscience of the society.
Where an accused does not act on any spur-of-themoment provocation and indulges himself in a
deliberately planned crime and meticulously
executes it, the death sentence may be the most
appropriate punishment for such a ghastly crime.
The death sentence may be warranted where the
victims are innocent children and helpless women.
Thus, in case the crime is committed in a most cruel
and inhuman manner which is an extremely brutal,
grotesque, diabolical, revolting and dastardly
manner, where his act affects the entire moral fibre
of the society e.g. crime committed for power or
political ambition or indulging in organised
criminal activities, death sentence should be
awarded.”
24. Thus, it is evident that for awarding the death sentence, there
must be existence of aggravating circumstances and the
consequential absence of mitigating circumstances. As to whether
death sentence should be awarded, would depend upon the factual
scenario of the case in hand.
The instant case is required to be examined in the light of the
aforesaid settled legal propositions.
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There is no reason to disbelieve the above evidence and
circumstances nor there is any reason to doubt the commission of
offence by the appellant and the recovery of incriminating material
on his disclosure statement. The incriminating circumstances taken
into consideration by the courts below can reasonably be inferred.
However, so far as the sentence part is concerned, in view of the
law referred to hereinabove, we are of the considered opinion that
the case does not fall within the rarest of rare cases. However,
considering the nature of offence, age and relationship of the victim
with the appellant and gravity of injuries caused to her, appellant
cannot be awarded a lenient punishment.
25. A three Judge Bench of this Court in Swami Shraddananda
@ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC
3040, considering the facts of the case, set aside the sentence of
death penalty and awarded the life imprisonment but further
explained that in order to serve the ends of justice, the appellant
therein would not be released from prison till the end of his life.
26. Similarly, in Ramraj v. State of Chattisgarh, AIR 2010 SC
420, this Court while setting aside the death sentence made a
direction that the appellant therein would serve minimum period of
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20 years including remissions earned and would not be released on
completion of 14 years imprisonment.
27. Thus, in the facts and circumstances of the case, we set aside
the death sentence and award life imprisonment. The appellant must
serve a minimum of 30 years in jail without remissions, before
consideration of his case for pre-mature release.
28. The appeal stands disposed of.
………………………………………..…J.
(Dr. B.S. CHAUHAN)
……………………………………….…J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
May 7, 2012
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