REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 292-293 OF 2014
Tattu Lodhi @ Pancham Lodhi …..Appellant
Versus
State of Madhya Pradesh …..Respondent
J U D G M E N T
SHIVA KIRTI SINGH, J.
The appellant, charge-sheeted for offences under Section 366(A), 363, 364,
376(2)(f)/511 and 201 of the Indian Penal Code (for brevity ‘IPC’) was
tried by the Twelfth Additional Sessions Judge, Jabalpur in Sessions Trial
No. 324 of 2011. He was found guilty of committing the murder of a minor
girl, aged about seven years and also of kidnapping and attempt to commit
rape on her and for destruction of evidence relating to the crime. The
trial court awarded punishment of death under Section 302 IPC, RI for life
and a fine of Rs.1,000/- with default stipulation for offence under Section
364 IPC, RI for seven years with similar fine for offence under Section
363 IPC, RI for seven years with similar fine for offence under Section
376(2)(f)/511 IPC and RI for seven years with similar fine for offence
under Section 201 IPC. All the punishments of imprisonment were directed to
run concurrently. By the impugned judgment the High Court of Madhya Pradesh
agreed with the findings of the trial court and answered the criminal
reference in affirmative, confirming the death sentence and dismissed the
criminal appeal preferred by the appellant.
2. Learned senior advocate for the appellant, Ms. Meenakshi Arora
initially made an attempt to challenge the conviction of the appellant
itself by pointing out absence of any eye-witness of the incident and
dependence of the entire prosecution case on circumstantial evidence alone.
Learned counsel for the State countered the challenge to conviction by
submitting that in law there is no hurdle in securing conviction purely on
circumstantial evidence. On facts, he highlighted that the trial court
considered the entire evidence on record fairly and in detail and found the
following five circumstances proved against the accused:
(i) The accused asked the victim soon before the incident to purchase and
bring “Gutka” for him and after sometime she became untraceable.
(ii) Victim was last seen alive with the accused
(iii)The accused avoided to hand over the keys of his house for the search
of victim.
(iv) Recovery and seizure of victim’s dead body in a gunny bag from the
house of the accused.
(v) Seizure of blood-stained clothes including bed sheet from the house
of accused pursuant to his memorandum statement.
3. In view of submission advanced on behalf of the appellant that
the chain of evidence to prove his guilt beyond reasonable doubt was not
complete, we have examined the relevant evidence and also the discussion
thereof made by the trial court in detail from paragraphs 15 to 32 of its
judgment and similar exercise by the High Court. On a careful consideration
of the evidence of shopkeeker Anil Kumar Jain (PW-7) from where the victim
bought “Gutka” for the accused and the evidence of complainant Gappu @
Kshirsagar, Hemraj, Ram Kumar, Sitaram, Maharaj Singh along with medical
evidence, seizure report and report from the forensic science laboratory
confirming the presence of human blood on the gunny bag, bed-sheet and bed-
cover which were seized from the house of accused, we find no good reason
to interfere with the findings of the trial court duly confirmed by the
High Court that the appellant-accused kidnapped the victim and after
subjecting her to sexual abuse, throttled her to death. The first
submission on behalf of the appellant that the chain of circumstantial
evidence is not complete and does not prove the guilt of accused is found
to be without any substance. We have no hesitation in confirming the
conviction.
4. Since there was no appeal before the High Court from the side
of the State or the complainant nor there is any such appeal in this Court,
We have confirmed the conviction as made by the trial court but we have no
hesitation in indicating our disapproval of the error committed by the
trial court in convicting the accused only for the attempted rape. The post-
mortem report, besides showing injuries on the neck and face showed several
bruise marks on the left and right side of the abdomen as well as an injury
on the left side of the vagina. The internal examination clearly records
thus: “……………….. in the reproductive organ the hymen membrane was ruptured.
Mild bleeding and inflammation were found. Vagina was congested and one
finger could be inserted. White discharge was coming out of vagina.” In
view of aforesaid findings recorded in the post-mortem report of the seven
year old victim duly proved by Dr. Khare (PW-9), there was no justification
not to hold the accused guilty of rape simply because PW-9 in his oral
deposition made a casual statement that there was attempt to commit rape on
the deceased before her death. It may only be noticed that the Doctor
confirmed that the death of the deceased was caused by asphyxia from
choking out the throat by strangulation of the neck and all the injuries
were ante mortem in nature. It may also be noted here that the post-mortem
report (Ex. P-13) was prepared and signed not only by Dr. Rakesh Khare (PW-
9) but also by his colleague Dr. Ashish Raj who had also participated in
the autopsy of the deceased.
5. Be that as it may, we have now to consider the next plea
advanced on behalf of the appellant that the facts of the case do not make
the crime to be “rarest of rare” and hence in such a case the Courts below
should not have awarded the death sentence. In support of the aforesaid
plea, learned senior counsel has submitted that at the time of occurrence
accused was aged only about twenty seven years and there was no material to
negate the chance of accused being reformed on account of sentence of
imprisonment and gaining further maturity. On the basis of injuries which
can be associated with rape, learned senior counsel submitted that no doubt
it was a heinous offence as the victim was only seven years old but there
were neither any broken bones nor brutal tearing etc. to make out a case of
extreme brutality. Learned senior counsel referred to the statement of the
accused recorded under Section 313 of the Code of Criminal Procedure to
point out that since sometime back the accused was living alone as his wife
had deserted him and he also admitted that there was only one case under
Section 354 IPC pending against him. Reference was also made to memorandum
statement of the accused recorded by the police in presence of some
witnesses to show that as per such statement the accused killed the
deceased because of loud cries by her. According to learned counsel the
murder was in a state of panic and not a premeditated act and therefore,
the appellant deserves a lenient punishment, anything other than death.
6. Ms. Arora, learned senior counsel for the appellant placed
reliance upon judgment in the case of Swamy Shraddananda(2) v. State of
Karnataka[1] to underscore that although Swamy Shraddananda’s conviction
under Sections 302 and 201 of the IPC was affirmed with a finding that the
crime was a cold blooded murder yet this Court was not convinced to confirm
the sentence of death even after discussing the diabolical crime in which a
wealthy married woman fell in trap, divorced her husband married the
accused and suffered death at his hands only for lust of her huge property.
The dead body was found buried under the floor of her residential house,
obviously to conceal the ghastly crime. In such a crime, while mulling
over the vexed issue of adequate sentence in lieu of death sentence, this
Court held that the Court had the power to substitute death by imprisonment
for life and also to direct that the convict would not be released from
prison for the rest of his life. A Constitution Bench judgment in the case
of Union of India v. V. Sriharan alias Murugan & Ors.[2] has also been
cited to show that judgment in the case of Swamy Shraddananda (2) (supra)
has been approved and followed. In paragraphs 89 and 90 of this judgment
it was explained that life imprisonment means the whole life span of the
person convicted and therefore in the facts of a case while not confirming
death penalty, this Court may, while exercising its power to impose the
punishment of life imprisonment, specify the period upto which the sentence
of life must remain intact so as to be proportionate to the nature of the
crime committed.
7. The submissions advanced on behalf of the State will be
considered hereinafter, but keeping in mind all the submissions, it is
clear that there is no opposition to the contention advanced by learned
senior counsel for the appellant on the basis of Swamy Shraddananda(2)
(supra) and the Constitution Bench Judgment in Sriharan (supra). In that
view of the matter and even otherwise we are in respectful agreement with
the views expressed in those judgments. The judicial innovation of
bridging the gap between death sentence on the one extreme and only 14
years of actual imprisonment in the name of life imprisonment on the other,
in our view serves a laudable purpose as explained in those judgments and
does not violate any positive mandate of law in the Indian Penal Code or in
the Code of Criminal Procedure. Hence, for doing complete justice in any
case, this court can definitely follow the law laid down in the aforesaid
judgments even by virtue of Article 142 of the Constitution of India. The
innovative approach reflected in the aforesaid judgments, on the one hand
helps the convict in getting rid of death penalty in appropriate cases, on
the other it takes care of genuine concerns of the victim including the
society by ensuring that life imprisonment shall actually mean imprisonment
for whole of the natural life or to a lesser extent as indicated by the
court in the light of facts of a particular case. Since there is no party
who is actually a looser on account of such an approach in appropriate
cases, we feel no hesitation in accepting the submissions advanced by the
appellant. Hence the law is reiterated that in appropriate cases where
this court is hesitant in maintaining death sentence, it may order that the
convict shall undergo imprisonment for whole of natural life or to a lesser
extent as may be specified.
8. Learned counsel for the State has made a strong attempt to
support the death sentence. According to him the judgments in the case of
Rajendra Pralhadrao Wasnik v. State of Maharashtra[3] and Shankar Kisanrao
Khade v. State of Maharashtra[4] catalogue the relevant factors which
should be looked for and examined for awarding or confirming death
sentence. He highlighted factors such as brutality, helplessness of the
victim, unprovoked and pre-meditated attack as well as societal concern in
respect of a particular brutal or heinous crime. According to him the
facts of the case showed brutality, helplessness of the victim as well as
unprovoked and pre-meditated design to assault. Learned counsel for the
State also referred to some other cases where death penalty had been
confirmed by this Court on the basis of peculiar facts of those cases.
Since there are large number of judgments either confirming death sentence
or commuting the same into life imprisonment, rendered on the basis of
peculiar facts of those cases, it would not be of any real help to consider
those judgments for deciding the issue as to whether in the facts of the
present case death sentence should be confirmed or commuted.
9. Having considered the rival submissions as well as judgments
relied upon, we are of the considered view that the facts of this case do
not make out a “rarest of rare” case so as to confirm the death sentence of
the appellant. The death penalty is therefore not confirmed. The question
as to what would be the appropriate period out of imprisonment for the
whole natural life that the appellant must spend in prison is not an easy
one to be answered. As per submissions of learned counsel for the
appellant in total an actual period of 20 years behind the bars would serve
the ends of justice in the present case. Contra, learned State counsel has
argued for whole of natural life.
10. The occurrence is of the year 2011 when the appellant was said
to be about 27 years old. Considering the fact that the deceased, a
helpless child fell victim of the crime of lust at the hands of the
appellant and there may be probabilities of such crime being repeated in
case the appellant is allowed to come out of the prison on completing usual
period of imprisonment for life which is taken to be 14 years for certain
purposes, we are of the view that the appellant should be inflicted with
imprisonment for life with a further direction that he shall not be
released from prison till he completes actual period of 25 years of
imprisonment. With this modification in the sentence, the appeals of the
appellant are dismissed.
…………………………………….J.
[J. CHELAMESWAR]
……………………………………..J.
[SHIVA KIRTI SINGH]
……………………………………..J.
[ABHAY MANOHAR SAPRE]
New Delhi.
September 16, 2016.
-----------------------
[1]
[2] (2008) 13 SCC 767
[3]
[4] (2016) 7 SCC 1
[5]
[6] (2012) 4 SCC 37
[7]
[8] (2013) 5 SCC 546
-----------------------
8
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 292-293 OF 2014
Tattu Lodhi @ Pancham Lodhi …..Appellant
Versus
State of Madhya Pradesh …..Respondent
J U D G M E N T
SHIVA KIRTI SINGH, J.
The appellant, charge-sheeted for offences under Section 366(A), 363, 364,
376(2)(f)/511 and 201 of the Indian Penal Code (for brevity ‘IPC’) was
tried by the Twelfth Additional Sessions Judge, Jabalpur in Sessions Trial
No. 324 of 2011. He was found guilty of committing the murder of a minor
girl, aged about seven years and also of kidnapping and attempt to commit
rape on her and for destruction of evidence relating to the crime. The
trial court awarded punishment of death under Section 302 IPC, RI for life
and a fine of Rs.1,000/- with default stipulation for offence under Section
364 IPC, RI for seven years with similar fine for offence under Section
363 IPC, RI for seven years with similar fine for offence under Section
376(2)(f)/511 IPC and RI for seven years with similar fine for offence
under Section 201 IPC. All the punishments of imprisonment were directed to
run concurrently. By the impugned judgment the High Court of Madhya Pradesh
agreed with the findings of the trial court and answered the criminal
reference in affirmative, confirming the death sentence and dismissed the
criminal appeal preferred by the appellant.
2. Learned senior advocate for the appellant, Ms. Meenakshi Arora
initially made an attempt to challenge the conviction of the appellant
itself by pointing out absence of any eye-witness of the incident and
dependence of the entire prosecution case on circumstantial evidence alone.
Learned counsel for the State countered the challenge to conviction by
submitting that in law there is no hurdle in securing conviction purely on
circumstantial evidence. On facts, he highlighted that the trial court
considered the entire evidence on record fairly and in detail and found the
following five circumstances proved against the accused:
(i) The accused asked the victim soon before the incident to purchase and
bring “Gutka” for him and after sometime she became untraceable.
(ii) Victim was last seen alive with the accused
(iii)The accused avoided to hand over the keys of his house for the search
of victim.
(iv) Recovery and seizure of victim’s dead body in a gunny bag from the
house of the accused.
(v) Seizure of blood-stained clothes including bed sheet from the house
of accused pursuant to his memorandum statement.
3. In view of submission advanced on behalf of the appellant that
the chain of evidence to prove his guilt beyond reasonable doubt was not
complete, we have examined the relevant evidence and also the discussion
thereof made by the trial court in detail from paragraphs 15 to 32 of its
judgment and similar exercise by the High Court. On a careful consideration
of the evidence of shopkeeker Anil Kumar Jain (PW-7) from where the victim
bought “Gutka” for the accused and the evidence of complainant Gappu @
Kshirsagar, Hemraj, Ram Kumar, Sitaram, Maharaj Singh along with medical
evidence, seizure report and report from the forensic science laboratory
confirming the presence of human blood on the gunny bag, bed-sheet and bed-
cover which were seized from the house of accused, we find no good reason
to interfere with the findings of the trial court duly confirmed by the
High Court that the appellant-accused kidnapped the victim and after
subjecting her to sexual abuse, throttled her to death. The first
submission on behalf of the appellant that the chain of circumstantial
evidence is not complete and does not prove the guilt of accused is found
to be without any substance. We have no hesitation in confirming the
conviction.
4. Since there was no appeal before the High Court from the side
of the State or the complainant nor there is any such appeal in this Court,
We have confirmed the conviction as made by the trial court but we have no
hesitation in indicating our disapproval of the error committed by the
trial court in convicting the accused only for the attempted rape. The post-
mortem report, besides showing injuries on the neck and face showed several
bruise marks on the left and right side of the abdomen as well as an injury
on the left side of the vagina. The internal examination clearly records
thus: “……………….. in the reproductive organ the hymen membrane was ruptured.
Mild bleeding and inflammation were found. Vagina was congested and one
finger could be inserted. White discharge was coming out of vagina.” In
view of aforesaid findings recorded in the post-mortem report of the seven
year old victim duly proved by Dr. Khare (PW-9), there was no justification
not to hold the accused guilty of rape simply because PW-9 in his oral
deposition made a casual statement that there was attempt to commit rape on
the deceased before her death. It may only be noticed that the Doctor
confirmed that the death of the deceased was caused by asphyxia from
choking out the throat by strangulation of the neck and all the injuries
were ante mortem in nature. It may also be noted here that the post-mortem
report (Ex. P-13) was prepared and signed not only by Dr. Rakesh Khare (PW-
9) but also by his colleague Dr. Ashish Raj who had also participated in
the autopsy of the deceased.
5. Be that as it may, we have now to consider the next plea
advanced on behalf of the appellant that the facts of the case do not make
the crime to be “rarest of rare” and hence in such a case the Courts below
should not have awarded the death sentence. In support of the aforesaid
plea, learned senior counsel has submitted that at the time of occurrence
accused was aged only about twenty seven years and there was no material to
negate the chance of accused being reformed on account of sentence of
imprisonment and gaining further maturity. On the basis of injuries which
can be associated with rape, learned senior counsel submitted that no doubt
it was a heinous offence as the victim was only seven years old but there
were neither any broken bones nor brutal tearing etc. to make out a case of
extreme brutality. Learned senior counsel referred to the statement of the
accused recorded under Section 313 of the Code of Criminal Procedure to
point out that since sometime back the accused was living alone as his wife
had deserted him and he also admitted that there was only one case under
Section 354 IPC pending against him. Reference was also made to memorandum
statement of the accused recorded by the police in presence of some
witnesses to show that as per such statement the accused killed the
deceased because of loud cries by her. According to learned counsel the
murder was in a state of panic and not a premeditated act and therefore,
the appellant deserves a lenient punishment, anything other than death.
6. Ms. Arora, learned senior counsel for the appellant placed
reliance upon judgment in the case of Swamy Shraddananda(2) v. State of
Karnataka[1] to underscore that although Swamy Shraddananda’s conviction
under Sections 302 and 201 of the IPC was affirmed with a finding that the
crime was a cold blooded murder yet this Court was not convinced to confirm
the sentence of death even after discussing the diabolical crime in which a
wealthy married woman fell in trap, divorced her husband married the
accused and suffered death at his hands only for lust of her huge property.
The dead body was found buried under the floor of her residential house,
obviously to conceal the ghastly crime. In such a crime, while mulling
over the vexed issue of adequate sentence in lieu of death sentence, this
Court held that the Court had the power to substitute death by imprisonment
for life and also to direct that the convict would not be released from
prison for the rest of his life. A Constitution Bench judgment in the case
of Union of India v. V. Sriharan alias Murugan & Ors.[2] has also been
cited to show that judgment in the case of Swamy Shraddananda (2) (supra)
has been approved and followed. In paragraphs 89 and 90 of this judgment
it was explained that life imprisonment means the whole life span of the
person convicted and therefore in the facts of a case while not confirming
death penalty, this Court may, while exercising its power to impose the
punishment of life imprisonment, specify the period upto which the sentence
of life must remain intact so as to be proportionate to the nature of the
crime committed.
7. The submissions advanced on behalf of the State will be
considered hereinafter, but keeping in mind all the submissions, it is
clear that there is no opposition to the contention advanced by learned
senior counsel for the appellant on the basis of Swamy Shraddananda(2)
(supra) and the Constitution Bench Judgment in Sriharan (supra). In that
view of the matter and even otherwise we are in respectful agreement with
the views expressed in those judgments. The judicial innovation of
bridging the gap between death sentence on the one extreme and only 14
years of actual imprisonment in the name of life imprisonment on the other,
in our view serves a laudable purpose as explained in those judgments and
does not violate any positive mandate of law in the Indian Penal Code or in
the Code of Criminal Procedure. Hence, for doing complete justice in any
case, this court can definitely follow the law laid down in the aforesaid
judgments even by virtue of Article 142 of the Constitution of India. The
innovative approach reflected in the aforesaid judgments, on the one hand
helps the convict in getting rid of death penalty in appropriate cases, on
the other it takes care of genuine concerns of the victim including the
society by ensuring that life imprisonment shall actually mean imprisonment
for whole of the natural life or to a lesser extent as indicated by the
court in the light of facts of a particular case. Since there is no party
who is actually a looser on account of such an approach in appropriate
cases, we feel no hesitation in accepting the submissions advanced by the
appellant. Hence the law is reiterated that in appropriate cases where
this court is hesitant in maintaining death sentence, it may order that the
convict shall undergo imprisonment for whole of natural life or to a lesser
extent as may be specified.
8. Learned counsel for the State has made a strong attempt to
support the death sentence. According to him the judgments in the case of
Rajendra Pralhadrao Wasnik v. State of Maharashtra[3] and Shankar Kisanrao
Khade v. State of Maharashtra[4] catalogue the relevant factors which
should be looked for and examined for awarding or confirming death
sentence. He highlighted factors such as brutality, helplessness of the
victim, unprovoked and pre-meditated attack as well as societal concern in
respect of a particular brutal or heinous crime. According to him the
facts of the case showed brutality, helplessness of the victim as well as
unprovoked and pre-meditated design to assault. Learned counsel for the
State also referred to some other cases where death penalty had been
confirmed by this Court on the basis of peculiar facts of those cases.
Since there are large number of judgments either confirming death sentence
or commuting the same into life imprisonment, rendered on the basis of
peculiar facts of those cases, it would not be of any real help to consider
those judgments for deciding the issue as to whether in the facts of the
present case death sentence should be confirmed or commuted.
9. Having considered the rival submissions as well as judgments
relied upon, we are of the considered view that the facts of this case do
not make out a “rarest of rare” case so as to confirm the death sentence of
the appellant. The death penalty is therefore not confirmed. The question
as to what would be the appropriate period out of imprisonment for the
whole natural life that the appellant must spend in prison is not an easy
one to be answered. As per submissions of learned counsel for the
appellant in total an actual period of 20 years behind the bars would serve
the ends of justice in the present case. Contra, learned State counsel has
argued for whole of natural life.
10. The occurrence is of the year 2011 when the appellant was said
to be about 27 years old. Considering the fact that the deceased, a
helpless child fell victim of the crime of lust at the hands of the
appellant and there may be probabilities of such crime being repeated in
case the appellant is allowed to come out of the prison on completing usual
period of imprisonment for life which is taken to be 14 years for certain
purposes, we are of the view that the appellant should be inflicted with
imprisonment for life with a further direction that he shall not be
released from prison till he completes actual period of 25 years of
imprisonment. With this modification in the sentence, the appeals of the
appellant are dismissed.
…………………………………….J.
[J. CHELAMESWAR]
……………………………………..J.
[SHIVA KIRTI SINGH]
……………………………………..J.
[ABHAY MANOHAR SAPRE]
New Delhi.
September 16, 2016.
-----------------------
[1]
[2] (2008) 13 SCC 767
[3]
[4] (2016) 7 SCC 1
[5]
[6] (2012) 4 SCC 37
[7]
[8] (2013) 5 SCC 546
-----------------------
8
