“REPORTABLE”
IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
CRIMINAL APPEAL NOS.300-301 OF 2011
Sunder @ Sundararajan …. Apellant
Versus
State by Inspector of Police. ….
Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. On 27.7.2007 Suresh aged 7 years, who lived with his mother
Maheshwari (PW1) at Karkudal village in Vridhachalam Taluk, left his
residence in the morning as usual, at about 8 a.m. to attend his school at
Vridhachalam.
Suresh was a class II student at Sakthi Matriculation School
at Vridhachalam. Each morning, he along with other students from the same
village, would leave for school, in a school van at about 8.00 a.m. The
same school van would bring them back in the afternoon at about 4.30 p.m.
On 27.7.2009, Suresh did not return home. Maheshwari (PW1) his mother got
worried and made inquiries. She inquired from Kamali (PW2), and from
another student from the same village, who used to travel to school in the
same van with Suresh.
Kamali (PW2) told Maheshwari (PW1) that a man was
waiting alongside a motorcycle when the school van returned to Karkudal
village on 27.7.2009.
The man informed Suresh that his mother and
grandmother were not well.
According to Kamali (PW2), the man told Suresh,
that he had been asked by Maheshwari (PW1) to bring Suresh to the hospital.
Based on the aforesaid assertions, Suresh had accompanied the man on his
motorcycle.
After having inquired from Kamali (PW2), Maheshwari (PW1)
sought information from another student Malai, but could not gather any
positive information from her.
Thereafter, she was informed by Kurinji
Selvan (PW3) belonging to the same village, that he had seen Suresh
disembarking from the Sakthi school van on 27.7.2009 at about 4.30 p.m.
He
also told her, that a man standing alongside a motorcycle, had called out
to Suresh and had taken Suresh along with him on his motorcycle.
Kurinji
Selvan (PW3) advised Maheshwari (PW1) to approach the police.
Maheshwari
(PW1) accordingly proceeded to Police Station, Kammapuram, to register a
complaint.
The said complaint was registered at 7 p.m. on the date of
occurrence, i.e., on 27.7.2009 itself.
Based thereon, Crime no.106 of 2009
was registered under Section 366 of the Indian Penal Code.
2. At about 9.30 p.m. on the same day, i.e., on 27.7.2009 Maheshwari
(PW1) received a call on her mobile phone.
The caller identified himself
as Shankar. The caller demanded a ransom of Rs.5 lakhs for the release of
Suresh. Immediately after the receipt of the aforesaid call, Maheshwari
(PW1) again rushed to the Police Station Kammapuram, and informed the
Station House Officer about the call received by her.
3. The investigating officer called Kasinathan (PW13), the then Village
Administrative Officer of village Karkudal, Taluka Vridhachalam, to the
Vridhachalam Police Station. Having taken permission from the Tehsildar,
Kasinathan (PW13) and his assistant went to Vridhachalam. From there, they
went to the house of the accused, and in the presence of Kasinathan (PW13),
the two accused were apprehended.
In the presence of Kasinathan (PW13),
the accused made confessional statements, leading to the recovery of three
mobile phone sets, two of which had sim cards.
The accused also
acknowledged, having strangulated Suresh when ransom was not paid for his
release.
The accused also confessed, that they had put the dead body of
Suresh in a gunny bag, and thereafter, had thrown it in the Meerankulam
tank.
Based on the aforesaid confessional statement, in the presence of
Kasinathan (PW13), and on the pointing out of the accused, the dead body of
Suresh was retrieved by personnel belonging to the fire service squad.
The
dead body of Suresh was found in a gunny bag which had been fished out of
the above-mentioned tank.
The accused also made statements to the police,
whereupon the school bag, books and slate belonging to the deceased Suresh
came to be recovered from the residence of the accused, in the presence of
Kasinathan (PW13).
4. During the course of the investigation emerging out of the mobile
phones recovered from the accused,
the police identified Saraswathi (PW8),
who affirmed that she had received a phone call from a person who called
himself Shankar, on 27.7.2009 at about 9 p.m.
She also disclosed, that the
caller had enquired from her about the phone number of Maheshwari (PW1).
Saraswathi (PW8) had required the caller, to ring her up after sometime.
She had received another call from Shankar and had furnished the mobile
phone number of Maheshwari (PW1) to him.
Consequent upon the gathering of
the above information,
the accused were charged under Sections 364-A (for
kidnapping for ransom), 302 (murder) and 201 (for having caused
disappearance of evidence) of the Indian Penal Code.
The trial of the case
was committed to the Court of Session, whereupon, the prosecution examined
19 prosecution witnesses. The prosecution also relied on 18 exhibits and
10 material objects. After the statements of the prosecution witnesses had
been recorded, the statements of the accused were recorded under Section
313 of the Code of Criminal Procedure. Despite having been afforded an
opportunity, the accused did not produce any witness in their own defence.
5. On the culmination of the trial, the accused-appellant Sunder @
Sunderajan was found guilty and convicted of the offences under Sections
364-A, 302 and 201 of the Indian Penal Code by the Sessions Judge, Mahila
Court, Cuddalore. For the first two offences, the accused-appellant was
awarded the death penalty along with fine of Rs.1,000/- each. For the
third offence, the accused-appellant was awarded 7 years rigorous
imprisonment along with a fine of Rs.1,000/-.
Vide RT no.2 of 2010, the
matter was placed before the High Court of Judicature at Madras
(hereinafter referred to as, the High Court), for confirmation of the death
sentence imposed on the accused-appellant.
The accused-appellant
independently of the aforesaid, filed Criminal Appeal no.525 of 2010 before
the High Court, for assailing the order of his conviction.
Vide its common
judgment dated 30.9.2010, the High Court confirmed the death sentence
imposed on the accused-appellant and simultaneously dismissed the appeal
preferred by Sunder @ Sundararajan.
Thus viewed, the judgment rendered by
the Sessions Judge, Mahila Court at Cuddalore dated 30.7.2010 was affirmed
by the High Court vis-à-vis the accused-appellant.
6. The Court of Session acquitted Balayee, accused no. 2. It is not a
matter of dispute before us, that the acquittal of Balayae, was not
contested by the prosecution by preferring any appeal. It is therefore
apparent, that for all intents and purposes accused no.2 stands discharged
from the matter on hand.
7. It is not necessary to deal with the statements of all the witnesses,
in so far as the instant controversy is concerned.
Even though the
prosecution had rested its case, on circumstantial evidence alone, it would
be necessary to refer to the statements of a few witnesses so as to deal
with the submissions advanced on behalf of the accused-appellant.
The
deposition of the relevant witnesses is accordingly being summarized
hereinafter.
8. Maheshwari (PW1) was the mother of the deceased Suresh. It was
Maheshwari (PW1) who had lodged the First Information Report at Police
Station, Kammapuram, on 27.7.2009. In her statement before the trial
court, she asserted that she had four children, three daughters and one
son. Suresh was her only son. She deposed, that she was running all
domestic affairs of her household at Village Karkudal in Taluk Vridhachalam
by herself, as her husband had gone abroad to earn for the family. She
affirmed, that she was also engaged in agriculture. She also asserted,
that her son Suresh was studying in Class II at the Sakthi Matriculation
School, Vridhachalam. He used to go to school, by the school van, and used
to return along with other children from school, at about 4.30 p.m. As
usual, on 27.7.2009, he had gone to school in the school van at about 8.00
a.m. but since he had not returned at 4.30 p.m., she had gone out to search
for him. She had enquired from other students who used to travel in the
same school van along with her son. Kamali (PW2) informed her that her son
Suresh had got down from the school van on 27.7.2009, in her company.
Kamali (PW2) also informed her, that as soon as Suresh got down from the
school van on 27.7.2009, the accused-appellant who was standing near the
neem tree along side his motorcycle, called Suresh by his name, and told
him that his mother and grandmother were ill, and had required him to bring
Suresh to them, on his motorcycle. At the man’s asking, according to
Kamali (PW2), Suresh sat on the man’s motorcycle, and was taken away.
Maheshwari (PW1) then enquired from Malai, another student who used to
travel by the same school van. Malai, however, did not remember about the
presence of Suresh. Finally, Maheshwari (PW1) was told by Kurinji Selvan
(PW3), a co-villager living in Karkudal village, that he had seen Suresh
getting down from the school van and being taken away by a man on his
motorcycle. Kurinji Selvan (PW3) advised Maheshwari (PW1), to report the
matter to the police. Based on the aforesaid inputs, Maheshwari (PW1)
deposed, that she had immediately gone to Police Station, Kammapuram, and
had lodged a report at 7.00 p.m. Having returned to her village,
Maheshwari (PW1) claims to have received a call on her mobile phone at
about 9.30 p.m. According to her, the caller was the accused-appellant.
The accused-appellant demanded a sum of Rs.5,00,000/- for the safe release
of her son Suresh. Consequent upon the receipt of the aforesaid phone
call, Maheshwari (PW1) deposed, that she had returned to the Police
Station, Kammapuram, to apprise the police of the aforesaid development.
According to Maheshwari (PW1), the police informed her on 30.7.2009, that
the body of her son had been recovered from a lake and had been brought to
Vridhachalam Hospital. In her statement, she affirmed having identified
the clothes, shoes and socks as also neck tie of her son Suresh. She also
identified his school bag which had the inscription ‘JAYOTH’. She also
identified his books as also the black colour slate having a green colour
beeding around it, as that of her son Suresh. She also identified the body
of her son when she set her eyes on him at Vridhachalam Hospital. During
her cross-examination, she deposed that she had not approached Kurinji
Selvan (PW3). It was Kurindi Selvan (PW3), who had approached her on
seeing her crying. When she disclosed to Kurinji Selvan (PW3) about her
missing son, he had informed her that he had seen her son Suresh
disembarking from the school van whereafter, Suresh had gone away with a
man on a motorcycle.
9. Kamali entered appearance before the trial court as PW2. She
asserted that she was (at the time of her deposition) studying in the 6th
standard at Sakthi Matriculation School, Vridhachalam. She affirmed that
Suresh, the deceased, was known to her. She deposed that on 27.7.2009, she
had gone to her school in the school van, wherein there were other children
from the village including Suresh. She also deposed that she along with
Suresh returned to Karkudal Village on 27.7.2009, at about 3.00 p.m. in the
school van. Suresh had got down from the school van, along with the other
children. When the van had arrived at the village, she had seen a man
standing along side a motorcycle. After Suresh got down from the school
van, the man beckoned at Suresh. He informed Suresh, that his mother and
grandmother were ill, and that Suresh’s mother had asked him, to bring
Suresh to the hospital. She deposed that when she reached her house,
Maheshwari (PW1) had inquired about the whereabouts of her son, from her.
She had informed Maheshwari (PW1) the factual position as narrated above.
She also asserted, that she was questioned by the police during the course
whereof she had informed the police,
that she could identify the accused.
She acknowledged that an identification parade was conducted by the
Judicial Magistrate at Cuddalore Central Prison, where she had identified
the accused-appellant, namely, the man who had taken Suresh on the
motorcycle on 27.7.2009, when they had returned from school.
10. Kurinji Selvan deposed before the trial court as PW3. He stated that
Maheshwari (PW1), Kamali (PW2), as also the deceased Suresh, were known to
him. He stated that on 27.7.2009 at about 4.30 p.m. when he was going
towards his paddy field on his motorcycle, the Sakthi School van had
dropped the school children of his village, at the corner of the river
path. He had also stopped his motorcycle, there. He had seen the accused-
appellant standing near the neem tree along side a motorcycle. He
identified the nature, as also, the colour of the clothes worn by the
accused-appellant. He confirmed, that the accused–appellant had called out
to Suresh by his name, whereupon, Suresh had gone up to him. He deposed,
that he had seen Suresh being taken away by the man, on his motorcycle. He
further deposed, that when he was returning from his paddy field at about
5.30 p.m., he had seen Maheshwari (PW1) weeping. When he enquired from
her, she told him, that her son was missing. Kurinji Selvan (PW3) affirmed
that he had informed her, that a man had taken her son away on a
motorcycle. He also advised Maheshwari (PW1) to lodge a report with the
police. He further deposed, that the body of a child was recovered on
30.7.2009 and he was informed about the same at about 8.00 a.m. The body
had been recovered from Meerankulam tank in Vuchipullaiyar Vayalapadi
village. Having received the aforesaid information, he had proceeded to
the Meerankulam tank where he identified Suresh, to the Inspector. He
further deposed, that an identification parade was conducted at the
Cuddalore Central Prison, in presence of the Judicial Magistrate. He
affirmed, that he had identified the accused-appellant as the person who
had taken Suresh, when Suresh had disembarked from the school van on
27.7.2009. He also asserted, that he had identified the motorcycle, when
he was shown two motorcycles, as the one on which the accused-appellant had
taken Suresh away on 27.7.2009.
11. The statement of M. Santhanam was recorded as PW6. He affirmed that
he was the Correspondent and Principal of Sakthi Matriculation School. He
also affirmed that Suresh was studying in his school in the 2nd standard.
He confirmed that Suresh had attended the school on 27.7.2009. He produced
the attendance register, wherein the presence of Suresh was duly recorded.
12. Saraswathi (PW8) appeared before the trial court and deposed, that on
27.7.2009, she had received a call on her mobile phone bearing
No.9943020435 at about 9.00 p.m. The caller identified himself as Sankar
and asked for the phone number of Maheshwari (PW1). She stated that she
had informed the caller, to ring her after a little while, by which time
she would retrieve the phone number of Maheshwari (PW1). Accordingly, the
caller again spoke to her on her mobile phone, whereupon, she had conveyed
the phone number of Maheshwari (PW1), to him.
13. A. Bashir, Judicial Magistrate No.1 appeared before the trial court
as PW10. He deposed that he had gone to the Cuddalore Central Prison on
25.8.2009 to conduct the identification parade. He had taken his office
assistant along with him. He had selected co-prisoners similar to the
accused-appellant to participate in the identification parade. Persons
selected by him were of the same height, weight, colour and beared. Out of
these eight persons selected by him, both Kamali (PW2) and Kurinji Selvan
(PW3) had identified the accused-appellant, in three different
combinations.
14. Sunil (PW11), working as legal officer of the Vodafone Company,
during the course of his deposition before the trial court affirmed, that
he was required by the Inspector of Police, Vridhachalam, to provide him
with the details of Vodafone cell phone numbers 9946205961 and 9943020435
for the period from 25.7.2009 to 28.7.2009. He affirmed that he had taken
the aforesaid details from the computer and given them to the Inspector of
Police. He confirmed that three calls had been made from sim number
9946205961, upto 9.39 p.m. on 27.7.2009. He also affirmed, that phone
number 9943020435 was in the name of Saraswathi (PW3).
15. Dr. Kathirvel appeared before the trial court as PW12. He had
conducted the post mortem on the dead body of Suresh on 30.7.2009. The
dead body was identified by the police Constable, in the mortuary. He
asserted that the body was in a decomposed state. According to his
analysis, the child had died within 36 to 48 hours prior to the post mortem
examination. According to the opinion tendered by him, suffocation was the
cause of the death of the child. And that, the child, in his opinion, had
died prior to his being drowned in the water.
16. Kasinathan (PW13), the Village Administrative officer, Karkudal,
while appearing before the trial court confirmed, that he was known to the
accused-appellant. He deposed that on 30.7.2009, he was summoned from his
residence by the Inspector of Police, Vridhachalam at about 4.30 p.m.
Thereupon, he had gone to the Vridhachalam Police Station. The Inspector
of Police had required Kasinathan (PW13) to be a police witness, whereupon,
he had obtained permission from the Tahsildar, for being a police witness.
He was taken to the house of the accused-appellant in a police jeep. They
reached his house at 7.00 a.m. on 30.7.3009. As soon as the accused saw
the police jeep, both of them fled from the spot. Whilst running away, the
accused-appellant had fallen down, and thereupon, the police personnel had
apprehended him. Women constables had apprehended Balayee (A-2). The
accused-appellant had made a confessional statement to the police in the
presence of Kasinathan (PW13). The accused-appellant had handed over three
mobile phones to the Police Inspector in his presence. Only two of the
said phones had sim cards. The accused-appellant had also produced the
motorcycle, on which he had taken away Suresh, when he had got down from
the school van at village Karkudal on 27.7.2009. The accused-appellant
also produced a school bag containing a slate and two books from his
residence in his presence. Kasinathan (PW13) admitted having signed the
“mahazar” when recoveries of the aforesaid articles were made from the
accused-appellant on 30.7.2009. Based on the information furnished by the
accused-appellant, Kasinathan (PW13) acknowledged, that he had gone to the
Meerankulam tank in Vayalapadi village, in the police jeep, along with the
other police personnel. When the gunny bag containing the dead body of the
child was retrieved from the tank, the accused-appellant had identified the
same as Suresh. He had also signed on the “mahazar” prepared on the
recovery of the gunny bag, containing the dead body of Suresh.
17. It is not necessary to refer to the statement of other witnesses
except the fact that the call details produced by Sunil (PW11) indicate
that two calls were made from the Mobile Phone recovered from the accused-
appellant to Saraswathi (PW8). The said calls were made at 9.22 p.m. and
9.25 p.m. respectively. The call details further indicate that from the
same number, a call was made to Maheshwari (PW1) at 9.39 p.m.
18. It is on the basis of the aforesaid oral and documentary evidence
that we shall endeavour to determine the issues canvassed at the hands of
the learned counsel for the appellant.
19. The solitary contention advanced by the learned counsel for the
appellant on the merits of the case was, that the prosecution had ventured
to substantiate the allegations levelled against the appellant only on the
basis of circumstantial evidence. It was sought to be pointed out, that in
the absence of direct evidence, the slightest of a discrepancy, depicting
the possibility of two views would exculpate the accused of guilt, on the
basis of benefit of doubt. Before dealing with the circumstantial evidence
relied upon against the appellant, learned counsel invited our attention to
the legal position declared by this Court, on the standard of proof
required for recording a conviction, on the basis of circumstantial
evidence. In this behalf, learned counsel for the appellant first of all
placed reliance on Sharad Birdhichand Sarda Vs. State of Maharashtra,
(1984) 4 SCC 116. It was pointed out, that in the instant judgment this
Court laid down the golden principles of standard of proof, required in a
case sought to be established on the basis of circumstantial evidence. In
this behalf reliance was placed on the following observations:-
“152. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused
can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should
be proved as was held by this Court in Shivaji Sahebrao
Bobade v. State of Maharashtra : 1973CriLJ1783 where the
following observations were made:
Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a Court can
convict, and the mental distance between 'may be' and
'must be' is long and divides vague conjectures from sure
conclusions.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused.
153. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial
evidence.”
Learned counsel for the appellant thereafter placed reliance on the
decision rendered in Tanviben Pankajkumar Divetia Vs. State of Gujarat,
(1997) 7 SCC 156. He placed reliance on the following observations
recorded therein:-
“45. The principle for basing a conviction on the basis of
circumstantial evidences has been indicated in a number of
decisions of this Court and the law is well settled that each
and every incriminating circumstance must be clearly established
by reliable and clinching evidence and the circumstances so
proved must form a chain of events from which the only
irresistible conclusion about the guilt of the accused can be
safely drawn and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of caution that
in a case depending largely upon circumstantial evidence, there
is always a danger that conjecture or suspicion may take the
place of legal proof. The Court must satisfy itself that various
circumstances in the chain of events have been established
clearly and such completed chain of events must be such as to
rule out a reasonable likelihood of the innocence of the
accused. It has also been indicated that when the important link
goes, the chain of circumstances gets snapped and the other
circumstances cannot in any manner, establish the guilt of the
accused beyond all reasonable doubts. It has been held that the
Court has to be watchful and avoid the danger of allowing the
suspicion to make the place of legal proof for some times,
unconsciously it may happen to be a short step between moral
certainty and legal proof. It has been indicated by this Court
that there is a long mental distance between 'may be true' and
'must be true' and the same divides conjectures from sure
conclusions. (Jaharlal Das v. State of Orissa : 1991 3 SCC 27)
46. We may indicate here that more the suspicious circumstances,
more care and caution are required to be taken otherwise the
suspicious circumstances may unwittingly enter the adjudicating
thought process of the Court even though the suspicious
circumstances had not been clearly established by clinching and
reliable evidences. It appears to us that in this case, the
decision of the Court in convicting the appellant has been the
result of the suspicious circumstances entering the adjudicating
thought process of the Court.”
Learned counsel also placed reliance on Sucha Singh Vs. State of Punjab,
(2001) 4 SCC 375. The instant judgment was relied upon in order to support
the contention, that circumstantial evidence could not be relied upon,
where there was any vacuum in evidence. It was pointed out therefrom, that
this Court has held, that each aspect of the criminal act alleged against
the accused, had to be established on the basis of material of a nature,
which would be sufficient to lead to the inference that there could be no
other view possible, than the one arrived at on the basis of the said
circumstantial evidence. In this behalf, learned counsel for the appellant
placed reliance on the following observations recorded in the afore-cited
judgment.
“19. Learned senior counsel contended that Section 106 of the
Evidence Act is not intended for the purpose of filling up the
vacuum in prosecution evidence. He invited our attention to the
observations made by the Privy Council in Attygalle Vs. R AIR
1936 PC 169, and also in Stephen Seneviratne vs. The King : AIR
1936 PC 289. In fact the observations contained therein were
considered by this Court in an early decision authored by Vivian
Bose, J, in Shambhu Nath Mehra vs State of Ajmer, AIR 1956 SC
404. The statement of law made by the learned Judge in the
aforesaid decision has been extracted by us in State of West
Bengal vs. Mir Mohammad Omar, 2000 (8) SCC 382. It is useful to
extract a further portion of the observation made by us in the
aforesaid decision:
"33. Presumption of fact is an inference as to the
existence of one fact from the existence of some other
facts, unless the truth of such inference is disproved.
Presumption of fact is a rule in law of evidence that a fact
otherwise doubtful may be inferred from certain other proved
facts. When inferring the existence of a fact from other set
of proved facts, the court exercises a process of reasoning
and reaches a logical conclusion as the most probable
position. The above principle has gained legislative
recognition in India when Section 114 is incorporated in the
Evidence Act. It empowers the court to presume the existence
of any fact which it thinks likely to have happened. In that
process the court shall have regard to the common course of
natural events, human conduct etc. in relation to the facts
of the case."
20. We pointed out that Section 106 of the Evidence Act 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 prosecution has succeeded in proving
facts for which a reasonable inference can be drawn regarding
the existence of certain other facts, unless the accused by
virtue of special knowledge regarding such facts failed to offer
any explanation which might drive the court to draw a different
inference.”
20. Based on the aforesaid judgments, the first contention advanced on
behalf of the accused-appellant was, that there was no material produced by
the prosecution to establish the factum of the commission of the murder of
the deceased Suresh (at the hands of the accused-appellant). According to
the learned counsel, the aforesaid vacuum could not be filled up on the
basis of any presumption.
21. We have considered the first contention advanced by the learned
counsel for the appellant, on the basis of the contention noticed in the
foregoing paragraph. In the veiled submission advanced in the hands of the
learned counsel for the appellant, we find an implied acknowledgement,
namely, that learned counsel acknowledges, that the prosecution had placed
sufficient material on the record of the case to substantiate the factum of
kidnapping of the deceased Suresh, at the hands of the accused-appellant.
Be there as it may, without drawing any such inference, we would still
endeavour to determine, whether the prosecution had been successful in
establishing the factum of kidnapping of the deceased Suresh, at the hands
of the accused-appellant. In so far as the instant aspect of the matter is
concerned, reference may first be made to the statement of Saraswathi, PW-8
wherein she affirmed that on 27.7.2009, at about 9 p.m., when she was at
her residence, she had received a call on her mobile phone bearing number
9943020435. The caller identified himself as Shankar. She deposed, that
the caller had inquired from her about the phone number of Maheshwari
(PW1). She stated, that she had responded to the said Shankar by asking
him to call her after sometime, and in the meanwhile, she (Saraswathi)
would gather the phone number of Maheshwari (PW1). Soon after the first
call, Saraswathi (PW8) testified, that she received a second call from the
same person. On this occasion, Saraswathi (PW-8) acknowledged having
provided the caller with the mobile phone number of Maheshwari (PW1).
Through independent evidence the prosecution was in a position to establish
that the first of the aforesaid two calls, were received by Saraswathi
(PW8) at 9.22 p.m., and the second one at 9.25 p.m. The caller, on having
obtained the mobile phone number of Maheshwari (PW1) then called her
(Maheshwari – PW1) on the mobile phone number supplied by Saraswathi (PW8).
On the basis of independent evidence the prosecution has also been able to
establish, that Maheshwari, (PW1) received the instant phone call at 9.39
p.m., from the same phone number from which Saraswathi, PW-8 had received
two calls. In her statement, Maheshwari (PW1) asserted, that the caller
demanded a ransom of Rs.5,00,000/- for the safe return of her son, Suresh.
At this juncture, as per her statement, Maheshwari (PW1) again visited the
police station to apprise the police of the said development. The
aforesaid material, was one of the leads, which the police had adopted in
identifying the accused-appellant.
22. Beside the aforesaid, the prosecution placed reliance on the
deposition of Kamali (PW2), for identifying the appellant as the kidnapper
of the deceased, Suresh. In her statement Kamali (PW-2) affirmed, that she
along with the deceased Suresh had returned to their village Karkudal on
27.7.2009 at about 4.30 p.m. in the school van. When they alighted from
the school van, as per the deposition of Kamali (PW2), the accused-
appellant was seen by her, standing besides his motor-cycle. The accused-
appellant, as per the testimony of Kamali (PW2), had gestured towards
Suresh with his hand. The deceased Suresh and Kamali (PW2) had accordingly
gone to the accused-appellant. The accused-appellant had told Suresh, that
his mother and grandmother were unwell, and he had been asked by his mother
to bring him (Suresh) to the hospital. Thereafter, according to Kamali
(PW2), the accused-appellant had taken away the deceased Suresh, on his
motor-cycle. It would be relevant to indicate that Kamali (PW2) duly
identified the accused-appellant in an identification parade, conducted
under the supervision of A. Bashir, Judicial Magistrate (PW10), on
25.8.2009 at Cuddalore Central Prison. According to the testimony of A.
Bashir, Judicial Magistrate, Kamali PW-2 correctly identified the accused-
appellant. The aforesaid evidence was the second basis of identifying the
accused-appellant as the person, who had kidnapped the deceased Suresh.
23. The deposition of Kurinji Selvan (PW3) has already been narrated
hereinabove. Kurinji Selvan (PW3) had seen Suresh disembarking from the
school van on 27.7.2009 at about 4.30 p.m., when the said van had returned
to village Karkudal. Kurinji Selvan (PW3) affirmed, that he had also seen
the accused-appellant waiting for the arrival of the school van under a
neem tree alongside his motorcycle. Kurinji Selvan (PW3) also deposed,
that he had seen the accused-appellant taking away Suresh, on his
motorcycle. On the date of the incident itself, he had informed Maheshwari
(PW1), that Suresh had been taken away by a man on his motorcycle. In the
same manner as Kamali (PW2) had identified the accused-appellant in an
identification parade, Kurinji Selvan (PW3) had also participated in the
identification parade conducted at Cuddalore Central Prison on 25.8.2009.
He had also identified the accused-appellant in the presence of the
Judicial Magistrate. The statement of Kurinji Selvan (PW3) constitutes the
third basis of identifying the accused-appellant as the man who had taken
away Suresh on his motorcycle on 27.7.2009.
24. Based on the evidence noticed in the three preceding paragraphs,
there can be no doubt whatsoever, that the accused-appellant had been
identified through cogent evidence as the person who had taken away Suresh
when he disembarked from school van on 27.7.2009. The factum of kidnapping
of Suresh by the accused-appellant, therefore, stands duly established.
25. The material question to be determined is, whether the aforesaid
circumstantial evidence is sufficient to further infer, that the accused-
appellant had committed the murder of Suresh. According to the learned
counsel for the appellant, there is no evidence whatsoever, on the record
of the case, showing the participation of the accused-appellant in any of
the acts which led to the death of Suresh. It was, therefore, the
submission of the learned counsel for the appellant, that even though the
accused-appellant may be held guilty of having kidnapped Suresh, since it
had not been established that he had committed the murder of Suresh, he
cannot be held guilty of murder in the facts of this case.
26. Having given our thoughtful consideration to the submission advanced
at the hands of the learned counsel for the appellant, we are of the view,
that the instant submission is wholly misplaced and fallacious. Insofar as
the instant aspect of the matter is concerned, reference may be made to the
judgment rendered by this Court in Sucha Singh’s case (supra), wherein it
was held as under:-
“21. We are mindful of what is frequently happening during these
days. Persons are kidnapped in the sight of others and are
forcibly taken out of the sight of all others and later the
kidnapped are killed. If a legal principle is to be laid down
that for the murder of such kidnapped there should necessarily
be independent evidence apart from the circumstances enumerated
above, we would be providing a safe jurisprudence for protecting
such criminal activities. India cannot now afford to lay down
any such legal principle insulating the marauders of their
activities of killing kidnapped innocents outside the ken of
others.”
A perusal of the aforesaid determination would reveal, that having proved
the factum of kidnapping, the inference of the consequential murder of the
kidnapped person, is liable to be presumed. We are one with the aforesaid
conclusion. The logic for the aforesaid inference is simple. Once the
person concerned has been shown as having been kidnapped, the onus would
shift on the kidnapper to establish how and when the kidnapped individual
came to be released from his custody. In the absence of any such proof
produced by the kidnapper, it would be natural to infer/presume, that the
kidnapped person continued in the kidnapper’s custody, till he was
eliminated. The instant conclusion would also emerge from Section 106 of
the Indian Evidence Act, 1872 which is being extracted hereunder :
“106 - Burden of proving fact especially within knowledge—.When any
fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that
which the character and circumstances of the act suggest, the burden
of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.”
27. Since in the facts and circumstances of this case, it has been duly
established, that Suresh had been kidnapped by the accused-appellant; the
accused-appellant has not been able to produce any material on the record
of this case to show the release of Suresh from his custody. Section 106
of the Indian Evidence Act, 1872 places the onus on him. In the absence of
any such material produced by the accused-appellant, it has to be accepted,
that the custody of Suresh had remained with the accused-appellant, till he
was murdered. The motive/reason for the accused-appellant, for taking the
extreme step was, that ransom as demanded by him, had not been paid. We
are therefore, satisfied, that in the facts and circumstances of the
present case, there is sufficient evidence on the record of this case, on
the basis whereof even the factum of murder of Suresh at the hands of the
accused-appellant stands established.
28. We may now refer to some further material on the record of the case,
to substantiate our aforesaid conclusion. In this behalf, it would be
relevant to mention, that when the accused-appellant was detained on
30.7.2009, he had made a confessional statement in the presence of
Kasinathan (PW13) stating, that he had strangulated Suresh to death,
whereupon his body was put into a gunny bag and thrown into the Meerankulam
tank. It was thereafter, on the pointing out of the accused-appellant,
that the body of Suresh was recovered from the Meerankulam tank. It was
found in a gunny bag, as stated by the accused-appellant. Dr. Kathirvel
(PW12) concluded after holding the post mortem examination of the dead body
of Suresh, that Suresh had died on account of suffocation, prior to his
having been drowned. The instant evidence clearly nails the accused-
appellant as the perpetrator of the murder of Suresh. Moreover, the
statement of Kasinathan (PW13) further reveals that the school bag, books
and slate of Suresh were recovered from the residence of the accused-
appellant. These articles were confirmed by Maheshwari (PW1) as belonging
to Suresh. In view of the factual and legal position dealt with
hereinabove, we have no doubt in our mind, that the prosecution had
produced sufficient material to establish not only the kidnapping of
Suresh, but also his murder at the hands of the accused-appellant.
29. Besides the submission advanced on the merits of the controversy,
learned counsel for the accused-appellant also assailed the confirmation by
the High Court of the death sentence imposed by the trial court. During
the course of hearing, it was the vehement contention of the learned
counsel for the accused-appellant, that infliction of life imprisonment, in
the facts and circumstances of this case, would have satisfied the ends of
justice. It was also the contention of the learned counsel for the accused-
appellant, that the facts and circumstances of this case are not sufficient
to categorize the present case as a ‘rarest of a rare case’, wherein only
the death penalty would meet the ends of justice. In order to support the
aforesaid contention, learned counsel for the accused-appellant, in the
first instance, placed reliance on a recent judgment rendered by this Court
in Haresh Mohandas Rajput Vs. State of Maharashtra, (2011) 12 SCC 56,
wherein, having taken into consideration earlier judgments, this Court
delineated the circumstances in which the death penalty could be imposed.
Reliance was placed on the following observations recorded therein:-
“Death Sentence – When Warranted:
“18. The guidelines laid down in Bachan Singh v. State of Punjab,
(1980) 2 SCC 684, may be culled out as under:
(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
(ii) Before opting for the death penalty, the circumstances of
the ‘offender’ also require to be taken into consideration
alongwith the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is
an exception. In other words, death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to
the nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so, the
mitigating circumstances have to be accorded full weightage
and just balance has to be struck between the aggravating
and the mitigating circumstances before the option is
exercised.
19. In Machhi Singh and Ors. v. State of Punjab, (1983) 2 SCC 684,
this Court expanded the "rarest of rare" formulation beyond the
aggravating factors listed in Bachan Singh to cases where the
"collective conscience" of a community is so shocked that it
will expect the holders of the judicial powers centre to inflict
death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty, such a
penalty can be inflicted. But the Bench in this case underlined
that full weightage must be accorded to the mitigating
circumstances in a case and a just balance had to be struck
between aggravating and mitigating circumstances.
20. "The rarest of the rare case" comes when a convict would be a
menace and threat to the harmonious and peaceful co-existence of
the society. The crime may be heinous or brutal but may not be
in the category of "the rarest of the rare case". There must be
no reason to believe that the accused cannot be reformed or
rehabilitated and that he is likely to continue criminal acts of
violence as would constitute a continuing threat to the society.
The accused may be a menace to the society and would continue to
be so, threatening its peaceful and harmonious co-existence. The
manner in which the crime is committed must be such that it may
result in intense and extreme indignation of the community and
shock the collective conscience of the society. Where an accused
does not act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and 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 fiber of the society, e.g. crime
committed for power or political ambition or indulging in
organized criminal activities, death sentence should be awarded.
(See: C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010 SC
3718; Rabindra Kumar Pal alias Dara Singh v. Republic of India,
(2011) 2 SCC 490; Surendra Koli v. State of U.P. and Ors.,
(2011) 4 SCC 80; Mohd. Mannan (supra); and Sudam v. State of
Maharashtra, (2011) 7 SCC 125).
21. 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.”
Reliance was also placed, on the decision of this Court in Ramnaresh & Ors.
Vs. State of Chhattisgarh, (2012) 4 SCC 257. Insofar as the instant
judgment is concerned, learned counsel relied on the following
observations:-
“The death sentence and principles governing its conversion to life
imprisonment
56. Despite the transformation of approach and radical changes in
principles of sentencing across the world, it has not been
possible to put to rest the conflicting views on sentencing
policy. The sentencing policy being a significant and
inseparable facet of criminal jurisprudence, has been inviting
the attention of the Courts for providing certainty and greater
clarity to it.
57. Capital punishment has been a subject matter of great social and
judicial discussion and catechism. From whatever point of view
it is examined, one undisputable statement of law follows that
it is neither possible nor prudent to state any universal
formula which would be applicable to all the cases of
criminology where capital punishment has been prescribed. It
shall always depend upon the facts and circumstances of a given
case. This Court has stated various legal principles which would
be precepts on exercise of judicial discretion in cases where
the issue is whether the capital punishment should or should not
be awarded.
58. The law requires the Court to record special reasons for
awarding such sentence. The Court, therefore, has to consider
matters like nature of the offence, how and under what
circumstances it was committed, the extent of brutality with
which the offence was committed, the motive for the offence, any
provocative or aggravating circumstances at the time of
commission of the crime, the possibility of the convict being
reformed or rehabilitated, adequacy of the sentence of life
imprisonment and other attendant circumstances. These factors
cannot be similar or identical in any two given cases.
59. Thus, it is imperative for the Court to examine each case on its
own facts, in light of the enunciated principles. It is only
upon application of these principles to the facts of a given
case that the Court can arrive at a final conclusion whether the
case in hand is one of the 'rarest of rare' cases and imposition
of death penalty alone shall serve the ends of justice. Further,
the Court would also keep in mind that if such a punishment
alone would serve the purpose of the judgment, in its being
sufficiently punitive and purposefully preventive.
xxx xxx xxx xxx
72. The above judgments provide us with the dicta of the Court
relating to imposition of death penalty. Merely because a crime
is heinous per se may not be a sufficient reason for the
imposition of death penalty without reference to the other
factors and attendant circumstances.
73. Most of the heinous crimes under the IPC are punishable by death
penalty or life imprisonment. That by itself does not suggest
that in all such offences, penalty of death alone should be
awarded. We must notice, even at the cost of repetition, that in
such cases awarding of life imprisonment would be a rule, while
'death' would be the exception. The term 'rarest of rare' case
which is the consistent determinative rule declared by this
Court, itself suggests that it has to be an exceptional case.
74. The life of a particular individual cannot be taken away except
according to the procedure established by law and that is the
constitutional mandate. The law contemplates recording of
special reasons and, therefore, the expression 'special' has to
be given a definite meaning and connotation. 'Special reasons'
in contra-distinction to 'reasons' simpliciter conveys the
legislative mandate of putting a restriction on exercise of
judicial discretion by placing the requirement of special
reasons.
75. Since, the later judgments of this Court have added to the
principles stated by this Court in the case of Bachan Singh
(supra) and Machhi Singh (supra), it will be useful to restate
the stated principles while also bringing them in consonance,
with the recent judgments.
76. The law enunciated by this Court in its recent judgments, as
already noticed, adds and elaborates the principles that were
stated in the case of Bachan Singh (supra) and thereafter, in
the case of Machhi Singh (supra). The aforesaid judgments,
primarily dissect these principles into two different
compartments - one being the 'aggravating circumstances' while
the other being the 'mitigating circumstances'. The Court would
consider the cumulative effect of both these aspects and
normally, it may not be very appropriate for the Court to decide
the most significant aspect of sentencing policy with reference
to one of the classes under any of the following heads while
completely ignoring other classes under other heads. To balance
the two is the primary duty of the Court. It will be appropriate
for the Court to come to a final conclusion upon balancing the
exercise that would help to administer the criminal justice
system better and provide an effective and meaningful reasoning
by the Court as contemplated under Section 354(3) Cr.P.C.
Aggravating Circumstances:
(1) The offences relating to the commission of heinous crimes
like murder, rape, armed dacoity, kidnapping etc. by the
accused with a prior record of conviction for capital
felony or offences committed by the person having a
substantial history of serious assaults and criminal
convictions.
(2) The offence was committed while the offender was engaged
in the commission of another serious offence.
(3) The offence was committed with the intention to create a
fear psychosis in the public at large and was committed in
a public place by a weapon or device which clearly could be
hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like
offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while
involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or
custody in a place of lawful confinement of himself or
another. For instance, murder is of a person who had acted
in lawful discharge of his duty under Section 43 Cr.P.C.
(9) When the crime is enormous in proportion like making an
attempt of murder of the entire family or members of a
particular community.
(10) When the victim is innocent, helpless or a person relies
upon the trust of relationship and social norms, like a
child, helpless woman, a daughter or a niece staying with a
father/uncle and is inflicted with the crime by such a
trusted person.
(11) When murder is committed for a motive which evidences
total depravity and meanness.
(12) When there is a cold blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the
conscience of the society.
Mitigating Circumstances:
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not
a determinative factor by itself.
(3) The chances of the accused of not indulging in commission
of the crime again and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally
defective and the defect impaired his capacity to
appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would
render such a behaviour possible and could have the effect
of giving rise to mental imbalance in that given situation
like persistent harassment or, in fact, leading to such a
peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was
morally justified in committing the offence.
(6) Where the Court upon proper appreciation of evidence is of
the view that the crime was not committed in a preordained
manner and that the death resulted in the course of
commission of another crime and that there was a
possibility of it being construed as consequences to the
commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony
of a sole eye-witness though prosecution has brought home
the guilt of the accused.
77. While determining the questions relateable to sentencing policy,
the Court has to follow certain principles and those principles
are the loadstar besides the above considerations in imposition
or otherwise of the death sentence.
Principles:
(1) The Court has to apply the test to determine, if it was
the 'rarest of rare' case for imposition of a death
sentence.
(2) In the opinion of the Court, imposition of any other
punishment, i.e., life imprisonment would be completely
inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an
exception.
(4) The option to impose sentence of imprisonment for life
cannot be cautiously exercised having regard to the nature
and circumstances of the crime and all relevant
considerations.
(5) The method (planned or otherwise) and the manner (extent
of brutality and inhumanity, etc.) in which the crime was
committed and the circumstances leading to commission of
such heinous crime.
78. Stated broadly, these are the accepted indicators for the
exercise of judicial discretion but it is always preferred not
to fetter the judicial discretion by attempting to make the
excessive enumeration, in one way or another. In other words,
these are the considerations which may collectively or otherwise
weigh in the mind of the Court, while exercising its
jurisdiction. It is difficult to state it as an absolute rule.
Every case has to be decided on its own merits. The judicial
pronouncements, can only state the precepts that may govern the
exercise of judicial discretion to a limited extent. Justice may
be done on the facts of each case. These are the factors which
the Court may consider in its endeavour to do complete justice
between the parties.
79. The Court then would draw a balance-sheet of aggravating and
mitigating circumstances. Both aspects have to be given their
respective weightage. The Court has to strike a balance between
the two and see towards which side the scale/balance of justice
tilts. The principle of proportion between the crime and the
punishment is the principle of 'just deserts' that serves as the
foundation of every criminal sentence that is justifiable. In
other words, the 'doctrine of proportionality' has a valuable
application to the sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to examine
what is just but also as to what the accused deserves keeping in
view the impact on the society at large.
80. Every punishment imposed is bound to have its effect not only on
the accused alone, but also on the society as a whole. Thus, the
Courts should consider retributive and deterrent aspect of
punishment while imposing the extreme punishment of death.
81. Wherever, the offence which is committed, manner in which it is
committed, its attendant circumstances and the motive and status
of the victim, undoubtedly brings the case within the ambit of
'rarest of rare' cases and the Court finds that the imposition
of life imprisonment would be inflicting of inadequate
punishment, the Court may award death penalty. Wherever, the
case falls in any of the exceptions to the 'rarest of rare'
cases, the Court may exercise its judicial discretion while
imposing life imprisonment in place of death sentence.”
Last of all, reliance was placed on the judgment rendered by this Court in
Brajendra Singh Vs. State of Madhya Pradesh, (2012) 4 SCC 289, wherein,
this Court having followed the decision rendered in Ramnaresh & Ors. Vs.
State of Chhattisgarh (cited supra), further held as under:-
“38. First and the foremost, this Court has not only to examine
whether the instant case falls under the category of 'rarest of
rare' cases but also whether any other sentence, except death
penalty, would be inadequate in the facts and circumstances of
the present case.
39. We have already held the Appellant guilty of an offence under
Section 302, Indian Penal Code for committing the murder of his
three children and the wife. All this happened in the spur of
moment, but, of course, the incident must have continued for a
while, during which period the deceased Aradhna received burn
injuries as well as the fatal injury on the throat. All the
three children received injuries with a knife similar to that of
the deceased Aradhna. But one circumstance which cannot be
ignored by this Court is that the prosecution witnesses have
clearly stated that there was a rift between the couple on
account of her talking to Liladhar Tiwari, the neighbour, PW10.
Even if some credence is given to the statement made by the
accused under Section 313 Cr.P.C. wherein he stated that he had
seen the deceased and PW10 in a compromising position in the
house of PW10, it also supports the allegation of the
prosecution that there was rift between the husband and wife on
account of PW10. It is also clearly exhibited in the FIR (P-27)
that the accused had forbidden his wife from talking to PW10,
which despite such warning she persisted with and, therefore, he
had committed the murder of her wife along with the children.”
30. We are one with the learned counsel for the accused-appellant, on the
parameters prescribed by this Court, for inflicting the death sentence.
Rather than deliberating upon the matter in any further detail, we would
venture to apply the parameters laid down in the judgments relied upon by
the learned counsel for the accused-appellant, to determine whether or not
life imprisonment or in the alternative the death penalty, would be
justified in the facts and circumstances of the present case. We may first
refer to the aggravating circumstances as under:-
(i) The accused-appellant has been found guilty of the offence under
Section 364A of the Indian Penal Code. Section 364A is being
extracted hereunder:-
“364A. Kidnapping for ransom, etc.—Whoever kidnaps or
abducts any person or keeps a person in detention
after such kidnapping or abduction and threatens to
cause death or hurt to such person, or by his
conduct gives rise to a reasonable apprehension that
such person may be put to death or hurt, or causes
hurt or death to such person in order to compel the
Government or any foreign State or international
inter-governmental organization or any other person
to do or abstain from doing any act or to pay a
ransom, shall be punishable with death, or
imprisonment for life, and shall also be liable to
fine.”
A perusal of the aforesaid provision leaves no room for any
doubt, that the offence of kidnapping for ransom accompanied by
a threat to cause death contemplates punishment with death.
Therefore, even without an accused actually having committed the
murder of the individual kidnapped for ransom, the provision
contemplates the death penalty. Insofar as the present case is
concerned, there is no doubt, that the accused-appellant has
been found to have kidnapped Suresh for ransom, and has also
actually committed his murder. In the instant situation
therefore, the guilt of the accused-appellant (under Section
364A of the Indian Penal Code) must be considered to be of the
gravest nature, justifying the harshest punishment prescribed
for the offence.
(ii) The accused-appellant has also been found guilty of the offence
of murder under Section 302 of the Indian Penal Code. Section
302 of the Indian Penal Code also contemplates the punishment of
death for the offence of murder. It is, therefore apparent,
that the accused-appellant is guilty of two heinous offences,
which independently of one another, provide for the death
penalty.
(iii) The accused caused the murder of child of 7 years. The facts
and circumstances of the case do not depict any previous enmity
between the parties. There is no grave and sudden provocation,
which had compelled the accused to take the life of an innocent
child. The murder of a child, in such circumstances makes this
a case of extreme culpability.
(iv) Kidnapping of a child was committed with the motive of carrying
home a ransom. On account of the non-payment of ransom, a minor
child’s murder was committed. This fact demonstrates that the
accused had no value for human life. The instant circumstance
demonstrates extreme mental perversion not worthy of human
condonation.
(v) The manner in which the child was murdered, and the approach and
method adopted by the accused, disclose the traits of outrageous
criminality in the behaviour of the accused. The child was
first strangulated to death, the dead body of the child was then
tied in a gunny bag, and finally the gunny bag was thrown into a
water tank. All this was done, in a well thought out and
planned manner. This approach of the accused reveals a brutal
mindset of the highest order.
(vi) All the aforesaid aggravating circumstances are liable to be
considered in the background of the fact, that the child was
known to the accused-appellant. In the examination of the
accused under Section 313 of the Code of Criminal Procedure, the
accused acknowledged, that he used to see the child whenever the
child was taken by his mother to her native village.
Additionally, it is acknowledged in the pleadings, that the
accused had developed an acquaintance with the child, when his
mother used to visit her native place along with her son.
Murder was therefore committed, not of a stranger, but of a
child with whom the accused was acquainted. This conduct of the
accused-appellant, places the facts of this case in the abnormal
and heinous category.
(vii) The choice of kidnapping the particular child for ransom, was
well planned and consciously motivated. The parents of the
deceased had four children – three daughters and one son.
Kidnapping the only male child was to induce maximum fear in the
mind of his parents. Purposefully killing the sole male child,
has grave repercussions for the parents of the deceased. Agony
for parents for the loss of their only male child, who would
have carried further the family lineage, and is expected to see
them through their old age, is unfathomable. Extreme misery
caused to the aggrieved party, certainly adds to the aggravating
circumstances.
31. As against the aforesaid aggravating circumstances, learned counsel
for the accused-appellant could not point to us even a single mitigating
circumstance. Thus viewed, even on the parameters laid down by this Court,
in the decisions relied upon by the learned counsel for the accused-
appellant, we have no choice, but to affirm the death penalty imposed upon
the accused-appellant by the High Court. In fact, we have to record the
aforesaid conclusion in view of the judgment rendered by this Court in
Vikram Singh & Ors. Vs. State of Punjab, (2010) 3 SCC 56, wherein in the
like circumstances (certainly, the circumstances herein are much graver
than the ones in the said case), this Court had upheld the death penalty
awarded by the High Court.
32. In view of the above, we find no justification whatsoever, in
interfering with the impugned order of the High Court, either on merits or
on the quantum of punishment.
33. Dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
February 5, 2013.
