‘residual doubt’-wholly insufficient to create reasonable doubt to earn acquittal but a mitigating factor would effectively raise the standard of proof for imposing the death sentence = Apex court converted in to life imprisonment In the present case, there are some residual doubts in our mind. A 29 crucial witness for constructing the last seen theory, P.W.5 is partly inconsistent in cross-examination and quickly jumps from one statement to the other. Two other witnesses, P.W.6 and P.W.7 had seen the appellant feeding biscuits to the deceased one year before the incident and their long delay in reporting the same fails to inspire confidence. The mother of the deceased has deposed that the wife and daughter of the appellant came to her house and demanded the return of the money which she had borrowed from them but failed to mention that she suspected the appellant of commiting the crime initially. Ligature marks on the neck evidencing throttling were noted by P.W.20 and P.W.12 and in the postmortem report, but find no mention in the panchnama prepared by the police. Viscera samples sent for chemical testing were spoilt and hence remained unexamined. Although nails’ scrappings of the accused were collected, no report has been produced to show that DNA of the deceased was present. Another initial suspect, Baba alias Ashok Kaurav absconded during investigation, hence, gave rise to the possibility of involvment of more than one person. All these factors of course have no impact in formation of the chain of evidence and are wholly insufficient to create reasonable doubt to earn acquittal. 62. We are cognizant of the fact that use of such ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit 30 comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free. “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” However, death being irrevocable, there lies a greater degree of responsibility on the Court for an indepth scruitiny of the entire material on record. Still further, qualitatively, the penalty imposed by awarding death is much different than in incarceration, both for the convict and for the state. Hence, a corresponding distinction in requisite standards of proof by taking note of ‘residual doubt’ during sentencing would not be unwarranted.

  ‘residual doubt’-wholly insufficient to create reasonable doubt to earn acquittal but a mitigating factor would effectively raise the standard of proof for imposing the death sentence = Apex court converted in to life imprisonment
In the present case, there are some residual doubts in our mind. A 29 crucial witness for constructing the last seen theory, P.W.5 is partly inconsistent in cross-examination and quickly jumps from one statement to the other. Two other witnesses, P.W.6 and P.W.7 had seen the appellant feeding biscuits to the deceased one year before the incident and their long delay in reporting the same fails to inspire confidence. The mother of the deceased has deposed that the wife and daughter of the appellant came to her house and demanded the return of the money which she had borrowed from them but failed to mention that she suspected the appellant of commiting the crime initially. Ligature marks on the neck evidencing throttling were noted by P.W.20 and P.W.12 and in the postmortem report, but find no mention in the panchnama prepared by the police. Viscera samples sent for chemical testing were spoilt and hence remained unexamined. Although nails’ scrappings of the accused were collected, no report has been produced to show that DNA of the deceased was present. Another initial suspect, Baba alias Ashok Kaurav absconded during investigation, hence, gave rise to the possibility of involvment of more than one person. All these factors of course have no impact in formation of the chain of evidence and are wholly insufficient to create reasonable doubt to earn acquittal. 62. We are cognizant of the fact that use of such ‘residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit 30 comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free. “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” However, death being irrevocable, there lies a greater degree of responsibility on the Court for an indepth scruitiny of the entire material on record. Still further, qualitatively, the penalty imposed by awarding death is much different than in incarceration, both for the convict and for the state. Hence, a corresponding distinction in requisite standards of proof by taking note of ‘residual doubt’ during sentencing would not be unwarranted. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1523-1524 OF 2019
[Arising out of Special Leave Petition(Crl.)Nos. 9254-
9255/2019 CRL.M.P. Nos. 5704-5705 OF 2017]
Ravishankar @ Baba Vishwakarma ..... Appellants(s)
 VERSUS
The State of Madhya Pradesh .....Respondents(s)
JUDGMENT
SURYA KANT, J.
Delay condoned. Leave granted.
2. Hovering between life and death, the appellant assails the judgment
dated 6th December, 2016 passed by the High Court of Madhya Pradesh at
Jabalpur whereby the death reference made by the IIIrd Additional
Sessions Judge, Gadarwara, District Narsinghpur (M.P.) has been
confirmed and the appellant’s criminal appeal has been dismissed.
1
Background:
3. The appellant was tried for having committed offences under
Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302
and 201 of the Indian Penal Code (for short IPC) and alternatively under
the corresponding provisions of the Protection of Children from Sexual
Offences Act, 2012 (for short ‘POCSO Act’). Through judgment and order
dated 19th July 2016, the Trial Court held the appellant guilty of kidnapping
a 13 year-old girl, committing rape on her, killing her by throttling and
thereafter destroying the evidence by throwing her half naked body in a dry
well. These crimes were held as being ‘rarest of the rare’ and the appellant
was sentenced to death under Section 376-A of the Indian Penal Code,
1860 (I.P.C.). In terms of Section 366 of the Code of Criminal Procedure,
1973 (Cr.P.C.), the Trial Court made a reference to the High Court for
confirmation of the death sentence. The appellant also filed criminal appeal
challenging this judgment and order passed by the Trial Court. The High
Court on 6th December 2016, through a common order, both dismissed his
appeal and confirmed the Trial Court’s death reference giving rise to this
special leave petition.
4. At the outset, it must be mentioned that when the appellant’s special
leave petition came up for hearing before a Three Judge Bench of this
Court on 10th January, 2018, the following order was passed:
2
“Mr. Arjun Garg, learned counsel for the State prays for two
weeks’ time to argue the matter on the conversion of sentence
from death to life, as we are not inclined to interfere with the
conviction.
 xxx xxx xxx”
5. Thus, the limited issue which survives for our consideration is
whether or not the appellant deserves to be imposed with the extreme
sentence of death penalty?
6. As noted by this Court in Bhupinder Sharma v. State of Himachal
Pradesh1
, that the mandate of not disclosing identities of the victims of
sexual offences under Section 228A of I.P.C. ought to be observed in spirit
even by this Court:
“2. We do not propose to mention name of the victim. Section
228-A of the Indian Penal Code, 1860 (in short the "IPC") makes
disclosure of identity of victim of certain offences punishable.
Printing or publishing name of any matter which may make
known the identity of any person against whom an offence under
Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found
to have been committed can be punished. True it is the
restriction does not relate to printing or publication of judgment
by High Court or Supreme Court. But keeping in view the social
object of preventing social victimization or ostracisms of the
victim of a sexual offence for which Section 228-A has been
enacted, it would be appropriate that in the judgments, be it of
High Court or lower Court, the name of the victim should not be
indicated. We have chosen to describe her as ' victim' in the
judgment.”
We are thus not disclosing the victim’s name and instead are
referring to her as the “deceased” throughout this judgment.
1 (2003) 8 SCC 551
3
Relevant Facts:
7. The necessary facts are to the following effect: P.W.3 (Purushottam
Kaurav – grandfather of the deceased), resident of village Baglai filed a
report at the Police Station at Gotitoria on 22nd May, 2015 at about 4.00
p.m. giving information of the disappearance of his 13 year old
granddaughter. The deceased and her 11 year old brother Harinarayan
were children of the informant’s younger son, Satyaprakash and had been
staying with their mother at the latter’s parental home in the neighbouring
village, Chargaon, for the last four months. The deceased visited the
informant’s home in village Baglai with her mother at around 10 a.m. the
previous day. The deceased did a few household chores while her mother
cooked food for the family. Later, she went out to play with her friend who
lived in the neighbourhood. Upon returning back she told her mother that
she was not feeling good and requested that they should return back to
her maternal uncle’s home in Chargaon. Her mother assured her that they
would return later that afternoon and both of them went to sleep. Upon
waking up at 3.00 p.m., the mother discovered that the deceased was not
around. The mother made unsuccessful enquiries in the neighbourhood
and later asked the deceased’s 11 year old brother to go and enquire
whether she had gone to Chargaon on her own. The brother came back in
the evening without any news of the victim. Thinking that their daughter
might have gone to her paternal aunt’s home in the nearby village of
Aadegaon, both parents slept. Next morning enquiries were made at
4
Aadegaon but it was informed that the deceased had not gone there either.
Worried, the mother herself left for her parental home at around 9-10 a.m.
and informed her brother Vishram that the victim was missing. Vishram
and the deceased’s mother set out on a wide search in the neighbourhoods
of Chargaon with little result. Whilst returning back to Baglai, the mother
identified the deceased’s salwar and one chappal on the embankment of
the water-channel which divided the villages of Baglai and Chargaon. Upon
reaching her matrimonial home in Baglai, the mother informed her fatherin-law about her daughter’s disappearance who then approached the
police. P.W.3 thereafter narrated facts of deceased’s disappearance and
gave description of his grand daughter who was studying in Class 6 at that
time. The Police, accordingly, registered a crime case under Section 363,
IPC.
8. Subsequently the police took P.W.3 to the spot where the salwar and
the chappal were recovered. Upon a local search of the area with some
villagers and relatives, the semi-nude body of the deceased was
discovered lying in a supine position in a dry well. The dead body was
taken out of the well and it was duly identified by her grandfather, P.W.3. A
spot map of the place of occurrence was drawn, and Seizure Panchnama
of black colour salwar and one Chappal of the deceased was also
prepared.
9. P.W.20 (Harsha Singh, Senior Scientific Officer) advised the police
5
on handling the body of the deceased and later inspected the decomposing
dead body at 9:45 p.m. at the Government Hospital, Chichli. After noticing
various injuries including ligature marks on the neck, she gave a report that
death of the deceased was homicidal. P.W.12 (Dr. Kinshu Jaiswal)
conducted postmortem of the body next morning at 9 a.m. Examining the
decayed state of the body, P.W. 12 estimated time of death 48-72 hours
before. She noted various injuries on the body including a ruptured hymen,
congested trachea and pale lungs. Vaginal slides were prepared and sent
for inspection. Hyoid bone, femur bone and three jars of the viscera
(containing pieces of stomach, small intestine, heart, lungs, liver, spleen,
kidney as well as separate salt solution sample) were also sent for
examination. Importantly, it was noticed that the skull and vertebrae were
intact. The vaginal slides, salwar and fiber chappal of the deceased were
sent to Forensic Science Laboratory, Sagar (FSL, Sagar) for DNA profiling,
whereas the sealed container(s) with different parts of the deceased’s body
were sent to the Medico-legal Institute, Bhopal for chemical testing.
Subsequently, the dead body of the deceased was handed over to the
family for last rites and statements of some witnesses were recorded under
Section 164 of Cr.P.C. before a Judicial Magistrate.
10. During the course of investigation, blood samples of various
suspects were taken for DNA analysis. As part of the first batch, blood
samples of Hargovind Kaurav, Nandi alias Anand Vanshkar and Baba alias
Ashok Kaurav were taken and sent to FSL, Sagar for DNA matching on 14th
6
June, 2015. Later on 22nd June, 2015 samples of the appellant (Baba alias
Ravishankar Vishwakarma), Roopram alias Ruppu Kaurav and Manoj alias
Halke Yadav was similarly sent for DNA analysis. After confirmation by the
FSL stating that only the DNA extracted from the appellant matched with
that on the vaginal slide of the deceased, the appellant was arrested on
20th July, 2015. Charge sheets were filed against him by the investigating
agency on 18th September, 2015.
Trial Court’s Analysis:
11. The Trial Court formulated various questions for consideration
including determination of the age of the deceased, factum of kidnapping
by accused, commission of rape, causing death by throttling and
destruction of evidence by dumping the dead body by the appellant.
12. With a view to bring home the appellant’s guilt, the prosecution
examined as many as 24 witnesses, whereas none were examined by the
appellant in defence. A brief summarisation of the testimonies of important
witnesses and evidences has been made hereunder.
13. P.W.1 (Sukhram Kotwar) who was posted as Gram Kotwar at Baglai,
admitted to accompanying the grand father of the deceased (P.W.3) to the
police station to lodge a missing report of the deceased. He also found
location of the deceased’s body and was a witness to seizure of the slipper,
panchnama and later to the collection of three blood samples and arrest of
the appellant by the police.
7
14. P.W. 2 (Shobhabai — mother of the deceased) stated in her
deposition that she knew the appellant, for she had borrowed money from
his family in the past. She claimed to be living in her parental home in
village Chargaon, which was separated by a water channel from her
matrimonial village of Baglai, since the past few months for treatment of an
eye injury. She had returned to her in-laws’ house on the morning of 21st
May, 2015 with the deceased. When she reached home, the wife and
daughter of the accused came and asked her to repay the borrowed
money. After some time her daughter (the deceased) told her that she was
going to play with her friend Priyanka at her house. The deceased came
back from her friend’s house and told P.W.2 that she was not feeling good
and requested that she be taken back to her maternal uncle’s house in
Chargaon. At about 3.00 p.m., the witness found that her daughter was not
there at their home. Her husband enquired from Priyanka’s house but
came to know that deceased was not there. P.W.2, thereafter, called her
son and sent him to her parental home at Chargaon about 5.00 p.m. Her
son came back home and informed that the deceased was not found in
Chargaon also. She again sent her son to Chargaon to look out for her
properly. It was, however, confirmed that the deceased had not gone to
Chargaon and she could not be found anywhere till 6.00 p.m. Thinking that
the deceased might have gone to her parental aunt’s house in Aadegaon,
P.W.2 and her husband slept for the night. The next morning P.W.2 got a
telephonic call made to Satyaprakash’s sister in Aadegaon but failed to
8
trace the deceased there as well. A search was made on the motorcycle at
the houses of various relatives and while P.W.2 was returning to Baglai
from her parental home along with her nephew, Dharmendra, she spotted
and identified the salwar and slipper of the deceased which were lying on
the roadside on the embankment of the water channel separating Baglai
from Chargaon. P.W.2 then informed her father-in-law, P.W.3, and then the
matter was reported to the Police. The Police thereafter started looking for
her daughter and then she got to know that the dead body of her daughter
was located inside the well of one Darshan Kaurav. P.W.2 did not suspect
anyone at that time. In cross-examination she admitted that she had told
the police that one Abhishek alias Pillu of the village used to offer paan
masala to the deceased and that police had also gone to Baba alias
Ashok’s house for his interrogation and for conducting Narco test but he
fled the next day from the village.
15. P.W.3 (Purushottam Kaurav) — grandfather of the deceased-victim
has deposed regarding lodging of the missing report with the Police and
also stated that he identified the dead body of his granddaughter upon
recovery from a dry well. He too admitted that a person named Baba alias
Ashok was called by the Police but he had fled and that some more
persons were also interrogated by the Police.
16. P.W.4 (Satyaprakash), the father of the deceased, narrated the
efforts put in by him and other relatives for the search of his daughter and
9
how during that search the dead body was found in the dry well
constructed in the field of Darshan Kaurav.
17. P.W.5 (Sharda) who is well acquainted with the appellant as well as
the family of the deceased is also a crucial prosecution witness. He
deposed that on the fateful day at about 3.00 p.m. he, along with his wife
Aalop Bai, was going on a bicycle when both of them spotted the appellant
with the deceased who was wearing a black frock and black pant ‘near the
peepal tree, near the field of Natthu Patel’. He has further stated that his
statement was recorded by the Police two days after the incident and that
“it is true that the Police had committed assault with me also. It is true that
Police had stated that they would arrest the rascal and they committed an
assault so I had stated out of nervousness.” In the very next breath, he,
however, denied that the police had assaulted and were forcing him to give
false testimony before the Court.
18. P.W.6 (Itta alias Kichchu) has stated that about a year prior to the
incident while he had gone to defecate near a reservoir after disposing of
some cowdung, he had seen the appellant feeding biscuits to the
deceased at the water channel near the shrubs. He told this fact to P.W.7
(Nimma Jeeji), who was harvesting sugarcane in the field of one Shatrughn
Patel. In his cross-examination, he admitted that his statement was
recorded one and a half months’ after the incident by the Police.
19. P.W.7 (Nimma Bai) endorsed the statement of P.W.6 to the extent
10
that about one year before the occurrence, P.W.6 had told her that the
appellant was feeding biscuits to the deceased. She has admitted in her
cross-examination that she herself had not seen the appellant feeding
biscuits to the deceased.
20. P.W.10 (Kuldeep Kaurav, a teacher in the Government Middle
School, Chargaon) produced school records to prove that the deceased
was admitted in 6th standard on 16th June, 2014 and as per the date of her
birth she was hardly 13 years old.
21. P.W.13 (Rajesh Kaurav) who was Patwari, testified that he prepared
spot map of the place of incident and that afterwards he took signatures of
people present in the vicinity and dispatched them to the Station House
Officer. In cross-examination, he admitted that details of the well were not
mentioned in the spot map, but volunteered that the well was abandoned
and had shrubs growing in it and the grass/crops growing outside had
hampered the well’s visibility from the Baglai-Chargaon road which was
situated 20 feet away.
22. P.W.14 (Hargovind Kaurav) was the cousin of the deceased who
admitted to seeing the deceased’s body in a dry well in a supine position.
He stated that the well was not visible from the road and volunteered that
he was witness to the appellant’s statement(s) before the police and also
witnessed seizure of the second slipper from a nearby water channel later.
23. P.W.15 (Prakashchand Mehra) is son of the Kotwar of Chargaon and
11
testified that the spot map and panchnama were prepared before him,
blood samples of three suspects (including appellant) were taken in his
presence and the missing slipper was seized by the police with him. In
cross-examination, however, he admitted that he was not present during
interrogation of the appellant by the police.
24. P.W.17 (Sanjay Kumar Nagvanshi) was the Tehsildar at Gadarwara
in August, 2015. He stated that he got conducted identification proceedings
to match the slipper recovered through the appellant to ensure that it
belonged to the deceased. He testified to procuring similar looking black
slippers from his staff members and mixing them with the slipper received
from the police station. Although both P.W.2 and P.W.3 were called by him,
he testified that only P.W.2 came into his office and identified the
deceased’s slipper correctly.
25. P.W.18 (M.D. Yadav) was posted as Assistant Sub-Inspector at
police station Chichli and was the police officer who lodged the missing
report on the basis of information given by P.W.3 on the afternoon of 22nd
May, 2015. He also testified to seizing the slipper and salwar presented by
P.W.2.
26. P.W.19 (C.M. Shukla) was posted as S.H.O. who got prepared spot
map and was also present during identification proceedings of the
deceased’s body. Upon being confronted during cross-examination as to
why the time of disappearance was recored as 10.00 p.m. in the
12
Roznamcha, he explained that it was a mistake.
27. P.W.21 (Krishnakant Kaurav) was posted as a Gram Rozgar
Sahayak in Gram Panchayat Chargaon and testified to witnessing
interrogation of the appellant, especially his disclosure of location of the
missing slipper and recovery of the same.
28. P.W.22 (Niyazul Khan) was the Inspector who got blood sample of
the appellant extracted at the Government Hospital, Chichli and prepared
seizure memo of sealed vials containing blood of the appellant and two
others, and forwarded them to FSL Sagar. The Trial Court refused
permission to the Defence Counsel to ask questions relating to the FIR,
postmortem report and Roznamcha holding that questions relating to
investigation only conducted by the witness could be asked from him.
29. P.W.23 (D.V.S. Sagar) was posted as Station House Officer at Police
Station Chichli and testified to recording memorandum statement of
accused in presence of P.W.15 and P.W.20, on which basis he seized the
missing black fibre slipper of right leg from near the shrubs under a tree
near the spot of incident in Darshan Kaurav’s field.
30. P.W.24 (Rajkumar Dixit) was the Head Constable who seized sealed
viscera jars and vaginal slides which were produced by Head Constable
Chetram. He admitted to not checking the sealed parcels himself and
stated that he safely locked them in a locker at the police station.
13
31. Over and above the above-mentioned oral testimonies, we may now
refer to the medico-scientific evidence led by the prosecution to connect
the appellant with the crime.
32. P.W.8 (Dr. R.R. Chaudhary), a Senior Scientific Officer from FSL,
Sagar has deposed that on 4th June, 2015 he examined three exhibits;
Slide marked as Ex. A , Salwar marked as Ex. B and Chappal marked as
Ex. C which belonged to the deceased. In the course of examination,
human sperms were found on the slide (Ex. ‘A’) of the deceased, however,
only human blood was found on the salwar (Ex. ‘B’). No blood or semen
was found on the slipper (Ex. ‘C’). The blood group of the blood stained on
the salwar could not be detected as a lot of dirt was stuck on it.
33. P.W.9 (Dr. C.S. Jain) was posted as Forensic Expert-Analysis at
Medico-Legal Institute, Bhopal on 12th June, 2015 when three viscera jars
(Exs. ‘D’, ‘E’ and ‘F’) comprising different parts of the body of deceased
were received with their seals intact. However, when opened these viscera
samples were discovered in a condition unfit for examination as the liquid
had turned stinky and dusty, and the tissues had decayed. After comparing
the postmortem report, evaluation of time and the sequence of the events
as also the report of the State Forensic Science Laboratory, P.W.9 opined
as follows, which could not be discredited at all in his cross-examination:
“12. Opinion :- After the analysis of facts described in the
documents which have been examined on the basis of my
subject knowledge, articles of books and experience gained from
the 10984 post mortems conducted by me for continuously more
14
than 33 years I am of the opinion that:-
1. The deceased died due to throttling.
2. Sexual intercourse was performed with the deceased
before her death which amounted to rape on considering the
age.
3. The deceased was dragged before her death and injuries
indicating the struggle were also present.
4. The slides and salwar of the deceased were kept for D.N.A.
examination. I did not know their result up to the preparation of
the report otherwise other opinion could also be expressed. It
would be appropriate to enclose the said report in the case after
obtaining it immediately. If the person/s performing sexual
intercourse with the deceased are known then the D.N.A of their
sperms should be matched with the D.N.A. of the sperms
present in the vaginal slides because if they matched then it
would be scientifically confirmed that the sexual intercourse was
performed by them. In this regard my report is ExP-11 which is in
5 pages. The A to A part on it bears my signature.”
34. P.W.11 (Dr. Pankaj Srivastava) was posted as Scientific Officer at
the DNA Unit of FSL, Sagar during the period, 24th June, 2015 to 20th July,
2015 and he submitted the DNA test report which shows that the DNA
extracted from the appellant’s blood matched with DNA from the vaginal
smear slide and salwar of the deceased. It has been specifically been
recorded that bodily fluids of the other five suspects were not found present
in the source vaginal slide or salwar of the victim. The witness was
subjected to an extremely lengthy cross-examination but nothing that could
distract the conclusion he has drawn in the report referred to above. His
opinion is extracted hereunder:
“1….
1. Male D.N.A. profile was found on the source vaginal smear
slide and salwar of the deceased …...
15
2. The body fluids of suspect Hargovind Kaurav, suspect
Nandi @ Anand and suspect Baba @ Ashok were not found
present in the source vaginal slide and salwar of the deceased
…...
3. The body fluids of suspect Roopram and suspect Manoj
were not found present in the source vaginal slide and salwar of
the deceased ……...
4. The D.N.A. profile matching with that of the suspect Baba
@ Ravishankar was found present in the source vaginal slide
and salwar of the deceased ……...
2. The opinion given by me in regard to the suspect
Hargovind Kaurav, Nandi @ Anand Kaurav and Baba @ Ashok is
ExP-15 which is in 3 pages and the A to A part on it bears my
signature. The opinion given by me in regard to the suspect
Baba @ Ravishankar, Roopram @ Ruppu Kaurav and Manoj @
Halke Yadav is ExP-16 which is in 2 pages and the A to A part on
it bears my signature.”
35. P.W.12 (Dr. Kinshuk Jaiswal), who was posted as Medical Officer at
Government Hospital Chichli on 23rd May, 2015, at at 9.00 a.m. conducted
postmortem on the dead body of the deceased. She has stated that the
putrefaction of the body had started and foul smelling odour was present.
She estimated time of death at 48-72 hours before or possibly earlier
depending upon environmental conditions. She also found chara (fodder)
inside the hair of the deceased and deposed that two vaginal slides of the
deceased were sent for examination. What she noticed in the postmortem
examination was as follows:
“Abrasions present in the whole left portion of the body of the
deceased. Extending from lateral aspect of left arm to left
forearm 15 cm x 3.5 cm irregular in shape. Left thigh lateral 8 cm
x 3 cm. Left leg (lateral) 7.5 cm x 2.5 cm irregular shape. Left
buttock 15 cm x 4.5 cm irregular. Neck swollen. Contusions
present on anterior aspect of neck both sides. Contusions
16
present over right axillary area 5 cm x 2.5 cm over left
supraclavicular area (6 cm x 2 cm), left arm (5 cm x 2.5 cm), left
scapular area (8 cm x 2.5 cm). Contusion present over right thigh
medical aspect (10 cm x 2.5 cm). Perineal area swollen and
edematous. Pubic hair absent. Hymen ruptured. Two vaginal
slides prepared and send + for biochemical examination. Feaces
passed. Contusion present over left foot (dorsally) 3.5 cm x 1.5
cm and contusion present over right palm (palmar aspect) of size
2 cm x 1.5 cm. ….(sic.)”
36. P.W.16 (Dr. Kshipra Kaurav) was posted as Medical Officer at
Government Hospital, Chichli on 8th July, 2015 when she was asked to take
the blood sample of the appellant which she kept in a vial, sealed it and
handed it over to the SHO who prepared the seizure memorandum Ex. P5. She has volunteered in her cross-examination that the blood samples of
two more persons were also taken prior to that of the appellant on the
same day and that photographs of all the persons whose blood samples
were taken were duly attested. She further volunteered that the
identification Form Ex. P-9 along with photographs of the appellant were
also attested by her.
37. Essentially, this is a case of circumstantial evidence which is
supported by occular and medico-scientific evidence. The prosecution has
effectively proved that deceased was `last seen’ with the appellant and on
earlier occasions too was seen being enticed by the appellant. DNA
evidence using the established STR technique has proved that appellant
committed sexual intercourse with the deceased. Deceased has been
proven to be a minor using school records. Various injuries on her body
17
along with signs of struggle proved that such crime was committed in a
barbaric manner. Death has been established as being homicidal and
caused by throttling, and has been estimated during the time when the
deceased was seen with the appellant. A slipper have been recovered
through the appellant which has later been identified as belonging to the
deceased, giving finality to the circumstantial chain. The appellant has
been unable to offer any alibi and his defence merely rests on deflecting
guilt on to the family of the deceased, which is without a shred of evidence.
Further, no effective challenge has been made against any medical or DNA
reports. There can thus be no second opinion against the guilt of the
appellant and his consequential conviction.
38. The findings of kidnapping, rape, resultant death and destruction of
evidence have hence been proven beyond reasonable doubt, as evidenced
by concurrent findings of the Courts below. Even this Court on 10th
January, 2018 has confirmed the conviction of the appellant keeping in
view the fact that DNA typing carries high probative value for scientific
evidence, is often more reliable than ocular evidence. It goes without
saying that in (i) Pantangi Balarama Venkata Ganesh vs. State of
Andhra Pradesh2
 and (ii) Dharam Deo Yadav vs. State of Uttar
Pradesh3
, this Court has unequivocally held that DNA test, even if not
infallible, is nearly an accurate scientific evidence which can be a strong
2(2009) 14 SCC 607
3(2014) 5 SCC 509
18
foundation for the findings in a criminal case.
Sentencing :
39. The core issue that we are left with to decide is the nature of
punishment to be awarded to the appellant. The Trial Court awarded death
sentence after drawing a balance-sheet weighing `mitigating’
circumstances against `aggravating’ circumstances. It noted that lack of
criminal antecedents and a large number of dependants were outweighed
by appellant’s mature (40-50) age, heinousness of offence, adverse
reaction of society, pre-planned manner of crime, injuries on body of
deceased and lack of regret during trial. The High Court noted that there
was bleeding due to sexual intercourse and that there was no possibility of
reform owing to the appellant’s denial of his crimes. Accordingly, it held
that awarding death penalty was justified.
40. The question as to why and in what circumstances should the
extreme sentence of death be awarded has been pondered upon by this
Court since many a decades. The Constitution Bench of this Court in
Bachan Singh vs. State of Punjab4
 evolved the principle of life
imprisonment as the ‘rule’ and death penalty as an ‘exception’. It further
mandated consideration of the probability of reform or rehabilitation of the
criminal. It, thus, formed the genesis of the ‘rarest of the rare’ doctrine for
awarding the sentence of death.
4 (1980) 2 SCC 684
19
41. This was further developed in Machhi Singh and others vs. State
of Punjab5 where this Court held that as part of the `rarest of rare’ test, the
Court should address itself as to whether; (i) there is something uncommon
about the crime which renders sentence of imprisonment for life
inadequate and calls for a death sentence; (ii) the circumstances are such
that there is no alternative but to impose death sentence even after
according maximum weightage to the mitigating circumstances which
speak in favour of the offender. Further, this Court ruled that :
“(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 along with
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 a just balance has to be
struck between the aggravating and the mitigating circumstances
before the option is exercised.”
42. There have been an umpteen number of judgments where this Court
has steadily restricted the circumstances for award of death penalty and
has increased the burden of showing special reasons before mandating
death penalty, as mandated under Section 354(3) of the Cr.P.C.
5 (1983) 3 SCC 470
20
43. This exercise of drawing a balance sheet of aggravating and
mitigating circumstances whilst keeping in mind the peculiarity of facts and
circumstances of each case has nevertheless been very tedious. It has
resulted in a lack of unanimity of standard amongst different Benches
resulting in differential standards for award of capital punishment.
44. Many protagonists of abolishment of death penalty have been
passionately urging this Court to not award death in cases of circumstantial
proof claiming an inherent weakness in cases without ocular evidence.
They highlight an ever-remaining possibility of reform and rehabilitation and
ask this Court to be cognizant of social, economic and educational
conditions of the accused.
45. Simultaneously, however, a parallel line of thought has strongly
advocated that death be imposed to maintain proportionality of sentencing
and to further the therories of deterence effect and societal retribution.
These people contend that sentencing should be society-centric instead of
being judge-centric and make use of a cost-benefit analysis to contend that
the miniscule possibility of putting to death an innocent man is more than
justified in the face of the alternative of endangering the life of many more
by setting a convict free after spending 14-20 years in imprisonment. This
possibility, they further state, is already well safeguarded against by a
`beyond reasonable doubt’ standard at the stage of conviction.
46. Ostensibly to tackle such a conundrum between awarding death or
21
mere 14-20 years of imprisonment, in Swamy Shraddananda @ Murali
Manohar Mishra Vs. State of Karnataka6
, a three-Judge Bench of this
Court evolved a hybrid special category of sentence and ruled that the
Court could commute the death sentence and substitue it with life
imprisonment with the direction that the convict would not be released from
prison for the rest of his life. After acknowledging that “the truth of the
matter is that the question of death penalty is not free from the subjective
element and the confirmation of death sentence or its commutation by this
Court depends a good deal on the personal predilection of the Judges
constituting the Bench”, this Court went on to hold as follows:
“92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence may be
excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this
Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the
present appeal, that the case just falls short of the rarest of the
rare category and may feel somewhat reluctant in endorsing the
death sentence. But at the same time, having regard to the
nature of the crime, the Court may strongly feel that a sentence
of life imprisonment subject to remission normally works out to a
term of 14 years would be grossly disproportionate and
inadequate. What then should the Court do? If the Court's option
is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14
years and the other death, the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over
what, as a matter of fact, lawfully belongs to the Court i.e. the
vast hiatus between 14 years' imprisonment and death. It needs
to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the
sentence of 14 years' imprisonment would amount to no
punishment at all.
6 (2008) 13 SCC 767
22
93. Further, the formalisation of a special category of sentence,
though for an extremely few number of cases, shall have the
great advantage of having the death penalty on the statute book
but to actually use it as little as possible, really in the rarest of
rare cases. This would only be a reassertion of the Constitution
Bench decision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC
(Cri) 580 : AIR 1980 SC 898] besides being in accord with the
modern trends in penology.
94. In the light of the discussions made above we are clearly of
the view that there is a good and strong basis for the Court to
substitute a death sentence by life imprisonment or by a term in
excess of fourteen years and further to direct that the convict
must not be released from the prison for the rest of his life or for
the actual term as specified in the order, as the case may be.”
47. The special sentencing theory evolved in Swamy Shraddananda
(supra) has got the seal of approval of the Constitution Bench of this Court
in Union of India vs. Sriharan alias Murugan and others7
, laying down
as follows:
“105. We, therefore, reiterate that the power derived from the
Penal Code for any modified punishment within the punishment
provided for in the Penal Code for such specified offences can
only be exercised by the High Court and in the event of further
appeal only by the Supreme Court and not by any other court in
this country. To put it differently, the power to impose a modified
punishment providing for any specific term of incarceration or till
the end of the convict's life as an alternate to death penalty, can
be exercised only by the High Court and the Supreme Court and
not by any other inferior court.
106. Viewed in that respect, we state that the ratio laid down in
Swamy Shraddananda (2) [Swamy Shraddananda (2) v. State of
Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] that a
special category of sentence; instead of death; for a term
exceeding 14 years and put that category beyond application of
remission is well founded and we answer the said question in the
affirmative. We are, therefore, not in agreement with the opinion
expressed by this Court in Sangeet v. State of Haryana [Sangeet
v. State of Haryana, (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611]
7 (2016) 7 SCC 1
23
that the deprival of remission power of the appropriate
Government by awarding sentences of 20 or 25 years or without
any remission as not permissible is not in consonance with the
law and we specifically overrule the same.”
48. Regardless of the suggestive middle path this Court has, when the
occasion demanded, confirmed death sentences in many horrenduous,
barberic and superlative crimes especially which involve kidnapping, rape
and cold blooded murder of tender age children.
49. In Mukesh and another vs. State (NCT of Delhi) and others8
,
faced with an instance of gang rape and brutal murder, this Court found
that aggravating circumstances like diabolic nature of the crime,
brazenness and coldness with which such acts were committed and the
inhuman extent to which the accused could go to satisfy their lust, would
outweigh mitigating circumstances.
50. In Vasanta Sampat Dupare vs. State of Maharashtra9
, a little child
was raped and brutally murdered. The death penalty was confirmed by this
Court. Thereafter, a review petition was heard in open court and the death
penalty was reconfirmed regardless of the convict having completed a
bachelors preparatory programme, having kept an unblemished jail record
and acquiring some other reformative qualifications during the course of
trial. This Court was of the view that the extreme depravity and barberic
manner in which the crime was committed and the fact that the victim was
8 (2017) 6 SCC 1
9 (2017) 6 SCC 631
24
a helpless child of 4 years clearly outweighed the mitigating circumstances
in that case.
51. In Khushwinder Singh vs. State of Punjab10
, this Court affirmed
the death sentence of the accused who had killed six innocent persons
including two minors by kidnapping, drugging them with sleeping pills and
then pushing them into a canal.
52. In Manoharan Vs. Inspector of Police11
, a three-Judge Bench (by
majority) affirmed the death sentence of the accused who along with his
co-accused was found guilty of gangraping a 10 years’ old minor girl and
committing her brutal murder along with her 7 years’ old brother by
throwing them into a canal and causing their death by drowning.
53. Equally, there are several other instances including the recent
instance in Rajindra Pralhadrao Wasnik v. State of Maharashtra in
Review Petition(Crl.) Nos. 306-307/2013 where this Court commuted
death sentence even in the case of rape and murder of tender age children
like 3-4 year olds after taking notice of the peculiar facts and circumstances
of that case as well as the factor that the convictions were founded upon
circumstancial evidence and though DNA Test was held but its report was
withheld and not produced by the prosecution for the reasons best known
to it.
10 (2019) 4 SCC 415
11(2019) SCConline SC 951
25
54. On a detailed examination of precedents, it appears to us that it
would be totally imprudent to lay down an absolute principle of law that no
death sentence can be awarded in a case where conviction is based on
circumstantial evidence. Such a standard would be ripe for abuse by
seasoned criminals who always make sure to destroy direct evidence.
Further in many cases of rape and murder of children, the victims owing to
their tender age can put up no resistence. In such cases it is extremely
likely that there would be no ocular evidence. It cannot, therefore, be said
that in every such case nothwthstanding that the prosecution has proved
the case beyond reasonable doubt, the Court must not award capital
punishment for the mere reason that the offender has not been seen
committing the crime by an eye-witness. Such a reasoning, if applied
uniformally and mechanically will have devastating effects on the society
which is a dominant stakeholder in the administration of our criminal justice
system.
55. Further, another nascent evolution in the theory of death sentencing
can be distilled. This Court has increasingly become cognizant of `residual
doubt’ in many recent cases which effectively create a higher standard of
proof over and above the `beyond reasonable doubt’ standard used at the
stage of conviction, as a safeguard against routine capital sentencing,
keeping in mind the irreversibility of death.
56. In Rameshbhai Chandubhai Rathod vs. State of Gujarat,
12 this
12 (2011) 2 SCC 764
26
Court noted that reliance on merely ‘plausible’ evidences to prove a
circumstantial chain and award death penalty would be “in defiance of any
reasoning which brings a case within the category of the “rarest of rare
cases”.” Further, various discrepancies in other important links in the
circumstantial chain as well as lack of any cogent reason by the High Court
for not accepting the retraction of the confession statement of the accused
was noted. Acting upon such various gaps in the prosecution evidence as
well as in light of other mitigating circumstances, like the possibility that
there were others involved in the crime, this Court refused to confirm the
sentence of death despite upholding conviction.
57. Such imposition of a higher standard of proof for purposes of death
sentencing over and above ‘beyond reasonable doubt’ necessary for
criminal conviction is similar to the “residual doubt” metric adopted by this
Court in Ashok Debbarma vs. State of Tripura13 wherein it was noted
that:
“in our criminal justice system, for recording guilt of the
accused, it is not necessary that the prosecution should prove
the case with absolute or mathematical certainty, but only
beyond reasonable doubt. Criminal Courts, while examining
whether any doubt is beyond reasonable doubt, may carry in
their mind, some "residual doubt", even though the Courts are
convinced of the accused persons' guilt beyond reasonable
doubt.”
58. Ashok Debbarma (supra) drew a distinction between a ‘residual
doubt’, which is any remaining or lingering doubt about the defendant’s
13 (2014) 4 SCC 747
27
guilt which might remain at the sentencing stage despite satisfaction of the
‘beyond a reasonable doubt’ standard during conviction, and reasonable
doubts which as defined in Krishan v. State14 are “actual and substantive,
and not merely imaginary, trivial or merely possible”. These ‘residual
doubts’ although not relevant for conviction, would tilt towards mitigating
circumstance to be taken note of whilst considering whether the case falls
under the ‘rarest of rare’ category.
59. This theory is also recognised in other jurisdictions like the United
States, where some state courts like the Supreme Court of Tennessey in
State vs. McKinney15 have explained that residual doubt of guilt is a valid
non-statutory mitigating circumstance during the sentencing stage and
have allowed for new evidence during sentencing proceedings related to
defendant’s character, background history, physical condition etc.
60. The above cited principles have been minutely observed by us,
taking into consideration the peculiar facts and circumstances of the case
in hand. At the outset, we would highlight that the High Court while
confirming death has observed that the girl was found bleeding due to
forcible sexual intercourse — which fact, however, is not supported by
medical evidence. However, such erroneous finding has no impact on
conviction under Section 376A of the I.P.C. for a bare perusal of the section
shows that only the factum of death of the victim during the offence of rape
14 (2003) 7 SCC 56
15 74 S.W.3d 291 (Tenn. 2002)
28
is required, and such death need not be with any guilty intention or be a
natural consequence of the act of rape only. It is worded broadly enough to
include death by any act committed by the accused if done
contemporaneously with the crime of rape. Any other interpretation would
defeat the object of ensuring safety of women and would perpetuate the
earlier loophole of the rapists claiming lack of intention to cause death to
seek a reduced charge under Section 304 of I.P.C. as noted in the Report
of the Committee on Amendments to Criminal Law, headed by Justice
J.S. Verma, former Chief Justice of India:
“22. While we believe that enhanced penalties in a substantial
number of sexual assault cases can be adjudged on the basis of
the law laid down in the aforesaid cases, certain situations
warrant a specific treatment. We believe that where the offence
of sexual assault, particularly ‘gang rapes’, is accompanied by
such brutality and violence that it leads to death or a Persistent
Vegetative State (or ‘PVS’ in medical terminology), punishment
must be severe – with the minimum punishment being life
imprisonment. While we appreciate the argument that where
such offences result in death, the case may also be tried under
Section 302 of the IPC as a ‘rarest of the rare’ case, we must
acknowledge that many such cases may actually fall within the
ambit of Section 304 (Part II) since the ‘intention to kill’ may
often not be established. In the case of violence resulting in
Persistent Vegetative State is concerned, we are reminded of
the moving story of Aruna Shanbagh, the young nurse who was
brutally raped and lived the rest of her life (i.e. almost 36 years)
in a Persistent Vegetative State.
23. In our opinion, such situations must be treated differently
because the concerted effort to rape and to inflict violence may
disclose an intention deserving an enhanced punishment. We
have therefore recommended that a specific provision, namely,
Section 376 (3) should be inserted in the Indian Penal Code to
deal with the offence of “rape followed by death or resulting in a
Persistent Vegetative State”.”
61. In the present case, there are some residual doubts in our mind. A
29
crucial witness for constructing the last seen theory, P.W.5 is partly
inconsistent in cross-examination and quickly jumps from one statement to
the other. Two other witnesses, P.W.6 and P.W.7 had seen the appellant
feeding biscuits to the deceased one year before the incident and their long
delay in reporting the same fails to inspire confidence. The mother of the
deceased has deposed that the wife and daughter of the appellant came to
her house and demanded the return of the money which she had borrowed
from them but failed to mention that she suspected the appellant of
commiting the crime initially. Ligature marks on the neck evidencing
throttling were noted by P.W.20 and P.W.12 and in the postmortem report,
but find no mention in the panchnama prepared by the police. Viscera
samples sent for chemical testing were spoilt and hence remained
unexamined. Although nails’ scrappings of the accused were collected, no
report has been produced to show that DNA of the deceased was present.
Another initial suspect, Baba alias Ashok Kaurav absconded during
investigation, hence, gave rise to the possibility of involvment of more than
one person. All these factors of course have no impact in formation of the
chain of evidence and are wholly insufficient to create reasonable doubt to
earn acquittal.
62. We are cognizant of the fact that use of such ‘residual doubt’ as a
mitigating factor would effectively raise the standard of proof for imposing
the death sentence, the benefit of which would be availed of not by the
innocent only. However, it would be a misconception to make a cost-benefit
30
comparison between cost to society owing to acquittal of one guilty versus
loss of life of a perceived innocent. This is because the alternative to death
does not necessarily imply setting the convict free.
63. As noted by the United States Supreme Court in Herrera v.
Collins,
16 “it is an unalterable fact that our judicial system, like the human
beings who administer it, is fallible.” However, death being irrevocable,
there lies a greater degree of responsibility on the Court for an indepth
scruitiny of the entire material on record. Still further, qualitatively, the
penalty imposed by awarding death is much different than in incarceration,
both for the convict and for the state. Hence, a corresponding distinction in
requisite standards of proof by taking note of ‘residual doubt’ during
sentencing would not be unwarranted.
64. We are thus of the considered view that the present case falls short
of the ‘rarest of rare’ cases where the death sentence alone deserves to be
awarded to the appellant. It appears to us in the light of all the cumulative
circumstances that the cause of justice will be effectively served by
invoking the concept of special sentencing theory as evolved by this Court
in Swamy Shraddananda (supra) and approved in Sriharan case
(supra).
65.For the reasons aforesaid, the appeals are allowed in part to the extent
that the death penalty as awarded by the courts below is set aside and is
16 506 U.S. 390 (1993)
31
substituted with the imprisonment for life with a direction that no remission
shall be granted to the appellant and he shall remain in prison for the rest
of his life.
………………………………..J.
(ROHINTON FALI NARIMAN)
….……………………..J.
(R. SUBHASH REDDY)
…………………………… J.
(SURYA KANT)
NEW DELHI
DATED : 03.10.2019

32

extra judicial confession = It is consistently, deposed by the independent witnesses mentioned above, that when they entered the house of the main accused, namely, Ishwari Lal Yadav and Kiran Bai, they have confessed that they have committed murder of the deceased child for the purpose of sacrifice. There is nothing on record to show that such confessions are caused by inducement, threat or promise. When such confessions are corroborated by other evidence on record, the trial court as well as the High Court, rightly relied on such confessions. From the evidence, it is proved that the place where the body of deceased Chirag was traced belongs to Ishwari Lal Yadav and Kiran Bai and in absence of any explanation from their side, there is no error committed by the trial court in accepting such evidence on record. It is true that the extra judicial confession is a weak pieceof evidence, but at the same time if the same is corroborated by other evidence on record, same can be accepted.

Crl.A.Nos.1416-17/17 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1416-1417 OF 2017
Ishwari Lal Yadav …..Appellant
Versus
State of Chhattisgarh …..Respondent
W I T H
CRIMINAL APPEAL NOS.300-301 OF 2018
Nihaluddin @ Khanbaba & Ors. …..Appellants
Versus
State of Chhattisgarh …..Respondent
CRIMINAL APPEAL NOS.1418-1419 OF 2017
Kiran Bai …..Appellant
Versus
State of Chhattisgarh …..Respondent
AND
1
Crl.A.Nos.1416-17/17 etc.
CRIMINAL APPEAL NOS.298-299 OF 2018
Rajendra Kumar & Anr. …..Appellants
Versus
State of Chhattisgarh …..Respondent
J U D G M E N T
R. Subhash Reddy, J.
1. All these appeals are directed against the common judgment of the
High Court of Chhattisgarh at Bilaspur dated 01.12.2016 passed in Criminal
Reference No.1 of 2014 and Criminal Appeal No.511 of 2014, as such they
are disposed of by this common judgment and order.
2. All the appellants were charged for offence under Sections 364/34 read
with 120B; 302/34 read with 120B and 201, Indian Penal Code (IPC). Vide
judgment dated 27.03.2014 passed in Sessions Trial No.61 of 2011, the
learned Sessions Judge, Durg, has convicted and sentenced the appellants.
For the offence under Sections 364/34 read with 120B, IPC they were
convicted and sentenced for imprisonment for life and fine of Rs.5000/- each,
in default of payment of fine, to undergo further rigorous imprisonment for four
months. For the offence under Sections 302/34 read with 120B, IPC death
2
Crl.A.Nos.1416-17/17 etc.
penalty was imposed with a fine of Rs.5000/- each, in default of which, they
were sentenced to undergo further rigorous imprisonment for four months.
For the offence under Section 201, IPC, rigorous imprisonment for five years
and a fine of Rs.2000/- each was imposed, in default of payment of fine, they
were sentenced to undergo further rigorous imprisonment for two months.
3. In view of death penalty imposed on the appellants, a reference was
made to the High Court, as required under Section 366 of Cr.P.C. and further
appellants-accused have filed Criminal Appeal No.511 of 2014 before the High
Court. By a common judgment dated 01.12.2016, the High Court has
confirmed death sentence on the two main accused, namely, Ishwari Lal
Yadav and Smt. Kiran Bai and modified the sentence of other appellants to
one of imprisonment for life without any entitlement of remission or parole.
4. The deceased, a small two year old boy, by name, Chirag Rajput was
the son of Poshan Singh (PW-3) and Savitri Bai (PW-5). PW-5 works as a
domestic help whereas Poshan Singh (PW-3) was working in Bhilai. Smt.
Vandana Rajput (PW-21) is the sister of Savitri Bai (PW-5) and was at home
along with the minor child – Chirag – on fateful day, i.e., 23.11.2010. When
Vandana Rajput (PW-21) and deceased boy Chirag Rajput were at home on
23.11.2010, Chirag went outside the house to play while she was inside. After
sometime when she went out, she could not find Chirag and Chirag was
missing. She immediately rang her sister and brother-in-law, i.e., PW-5 and 3
respectively who came back to their house.
3
Crl.A.Nos.1416-17/17 etc.
5. It is the case of the prosecution that the two main accused, Smt. Kiran
Bai and her husband Ishwari Lal Yadav believed in tantrism. Smt. Kiran Bai
wanted to attain siddhi. She was also proclaimed as ‘gurumata’. To propitiate
the God, she asked her husband and disciples who are the other co-accused
along with them, to get a small child for human sacrifice. The main accused
were neighbours to PW-3 and 5. It is alleged that for the purpose of sacrifice
to God, the child Chirag was kidnapped and murdered in a gruesome manner,
inside the house of main accused Kiran Bai and Ishwari Lal Yadav. Thereafter
he was buried in the precincts of the house. To avoid sound of cries, music
system was played loudly.
6. After the information from Vandana Rajput (PW-21) to her sister Savitri
Bai (PW-5) and brother-in-law Poshan Singh (PW-3), all started searching for
Chirag. When the parents of the child, family members and other people of
the neighbourhood were searching for missing boy, they became suspicious
from the loud music, emanating from the house of two main accused.
Thereupon, some people have entered the house of Kiran Bai and Ishwari Lal
Yadav and found five mounds of freshly dug earth. It is alleged that there was
also a leaf bowl (Dona), one small bowl (Katori), one small round metal pot
(Lota), a trident (Trishul), idols and pictures of Gods and other items of puja
were lying there. There was blood on some of these items. It is alleged that
when the crowd asked the accused what had happened, Smt. Kiran Bai and
Ishwari Lal Yadav confessed that they had sacrificed Chirag with the help of
4
Crl.A.Nos.1416-17/17 etc.
other co-accused and begged for mercy. Immediately thereafter, the crowd
started digging the freshly dug earth and body of Chirag was taken out.
Thereafter police came to the site and report was lodged. The body of Chirag
was sent for post-mortem. All the accused were questioned on which they
made some disclosure statements. On the basis of such disclosure
statements, recoveries of certain incriminating articles were made. After
completing the investigation, the police filed final report under Section 173
Cr.P.C. against all the appellants and one other accused by name Krishna
Tambi. However, as he was absconding, his trial was separated. All the
accused have denied the guilt and claimed trial. They were tried for the
offences as referred above before the learned Sessions Judge, Durg and they
were convicted and sentenced vide judgment dated 27.03.2014. All the
appellants were imposed with the penalty of death. Reference was made to
the High Court under Section 366 of the Cr.P.C.
7. Appellants have also challenged their conviction and sentence imposed,
by way of criminal appeal. Both were considered by a common judgment.
While confirming the conviction under Section 302/34 read with Section 120B,
IPC and sentence of death penalty on the main accused, namely, Ishwari Lal
Yadav and Kiran Bai, the High Court has modified the punishment of other
accused to that of imprisonment for life.
8. We have heard Sri Siddhartha Dave, learned senior counsel appearing
for the appellants in Crl. Appeal Nos.1416-1417 of 2017 and 1418-1419 of
5
Crl.A.Nos.1416-17/17 etc.
2017; Sri Birendra Kumar Mishra, learned counsel for the appellants in Crl.
Appeal Nos.300-301 of 2018; Sri Rajeev Kumar Bansal, learned counsel
appearing for the appellants in Crl. Appeal Nos.298-299 of 2018 and Sri
Sumeer Sodhi, learned counsel appearing for the respondent-State of
Chhattisgarh.
9. In these appeals, mainly it is pleaded by the learned senior counsel Sri
Siddhartha Dave appearing for the appellants that except the alleged
confessional statement, there is no other evidence to prove the guilt of
accused for kidnapping and murder of deceased boy – Chirag. It is further
submitted that all the findings recorded by the trial court, as confirmed by the
High Court, for conviction of the appellants rest upon confessional statement
of the appellants which is barred under Sections 24, 25 and 26 of the Indian
Evidence Act, 1872. It is submitted that there are material contradictions in
the depositions of witnesses about the arrival of police to the place of
occurrence of the offence and on the alleged extra-judicial confessions, inspite
of the same, courts below have accepted such evidence on record and
passed the impugned judgments. It is submitted that, as the body of the
deceased was not found in exclusive possession of the main accused, courts
below have committed an error in taking assistance of Section 106 of the
Indian Evidence Act. It is submitted that body was discovered only after large
crowd had gathered. Further, it is submitted that the discovery of skeleton of
other person and also the theory of bad character, that is, appellants were
6
Crl.A.Nos.1416-17/17 etc.
black magic practitioners, is barred under Sections 14, 15 and 54 of the Indian
Evidence Act. It is further submitted that the prosecution has not proved any
ingredient under Section 120B, IPC to prove conspiracy among the appellants
for committing the alleged offence.
10. It is the contention of the learned counsel appearing for the appellants
that there is absolutely no evidence on record to prove that there was a
common intention on the part of such appellants to commit the offence of
kidnapping and murder of the deceased child. So far as the appellants other
than the main accused, it is submitted that the findings of the courts below are
based on the alleged confessional statements and in the absence of any
corroboration, the courts below have committed an error in convicting the
appellants with the aid of Sections 34 and 120B, IPC. It is also the contention,
of the learned counsel for the appellants that there is no reason or justification
for imposing the death penalty on Ishwari Lal Yadav and Kiran Bai, while
modifying the punishment to that of life imprisonment to all other accused. It
is also submitted that the incident in question cannot be considered as the
“rarest of rare cases” so as to impose the capital punishment. The learned
counsel appearing for the appellants, in support of his arguments, has relied
on the following cases :
1. Aghnoo Nagesia v. State of Bihar1
2. Sahadevan & Anr. v. State of Tamil Nadu2
1
 1966 (1) SCR 134 = AIR 1966 SC 119
2
 (2012) 6 SCC 403
7
Crl.A.Nos.1416-17/17 etc.
3. Shambu Nath Mehra v. The State of Ajmer3
4. Firozuddin Basheeruddin & Ors. v. State of Kerala4
5. Ronny v. State of Maharashtra5
11. On the other hand, Sri Sumeer Sodhi, learned counsel appearing for the
State of Chhattisgarh, has submitted that the case relates to a gruesome
murder of small two year old boy as a human sacrifice and from the oral
evidence on record, the prosecution has proved the guilt of the accused
beyond reasonable doubt, as such there are no grounds to interfere with the
impugned judgment. It is submitted that, all the appellants were present in
the house of the main accused and the fact that the body of the deceased was
also recovered from the house of the main accused, is proved from the oral
evidence of PWs-2, 3, 5, 6, 9, 10, 12, 13 and 16. It is further submitted that
the contradictions referred to by the counsel for the appellants are minor and
they may not affect well reasoned findings and conclusions arrived by the trial
court, as confirmed by the High Court. The learned State Counsel has relied
on the judgment of this Court in the case of Sushil Murmu v. State of
Jharkhand6
to substantiate his arguments.
12. Having heard the learned counsels we have carefully perused the
impugned judgments and also the material on record.
13. To prove the guilt of the accused, prosecution has examined PW 1 to
PW 22. When it was reported by Vandana Rajput (PW-21), who is the sister
3
 1956 SCR 199
4
 (2001) 7 SCC 596
5
 (1998) 3 SCC 625
6
 (2004) 2 SCC 338
8
Crl.A.Nos.1416-17/17 etc.
of Savitri Bai (PW-5), Savitri Bai and Poshan Singh (PW-3) came back to their
house. In the evidence of Poshan Singh (PW-3) who is the father of the
deceased child, he has stated that the main accused Ishwari Lal Yadav and
Smt. Kiran Bai are his neighbours and he knows them. He also knows all
other accused because they regularly visit but he could not tell their names.
He further stated that during their search for the missing Chirag along with his
wife Smt. Kiran Bai and others, they heard loud music emanating from the
house of the main accused, which gave suspicion in the minds of the people
in the locality, therefore, they entered the house of Ishwari Lal and Kiran Bai
and noticed that the ground around the place of worship was wet and a knife
was also lying at that place. On digging up the wet place, body of Chirag was
found. The body was in two parts and head had been severed from the neck.
Both the cheeks had been cut. At the place of worship, pictures of Gods have
been placed. At the same time, he stated, he has come to know the names of
other accused after occurrence of the incident. In similar lines is also the oral
evidence of PW-5 who is the mother of the deceased child. In her deposition
she has stated that she works as a domestic help. On the day of occurrence,
when Vandana Rajput (PW-21) has informed the mother of the deceased
child, PW-5 Savitri Bai has come back to the house and it is stated that she
along with her husband and others, were searching for the missing boy, and
on hearing the loud music emanating from the house of Ishwari Lal Yadav they
entered the house. She has further stated that she knows accused Kiran Bai
9
Crl.A.Nos.1416-17/17 etc.
and Ishwari Lal Yadav, Nihaluddin @ Khanbaba, Hemant Sahu and Sukhdev.
She has also stated that all other accused were regularly going to the house
of Ishwari Lal Yadav and Kiran Bai. She too in clear terms has stated that
when they entered the house of Ishwari Lal Yadav and Kiran Bai, they
admitted the guilt of committing murder of Chirag in the form of human
sacrifice and begged for mercy. On suspicion from the members of the group,
the place of worship was dug and on digging, the body of Chirag was found.
His head was separated from the body, both the cheeks had deep cuts and
tongue was cut off. On seeing her child with such condition, she became
unconscious. In her deposition she has specifically stated that police had not
come with them inside the house of Ishwari Lal Yadav, they came later. The
brother of Poshan Singh, Sri Suraj Singh Rajput (PW-2) was also examined.
In his deposition he has stated that he knows all the accused because earlier
he was residing in Ruabandha area where all accused used to reside. In his
deposition he has stated that on call from his brother Poshan Singh (PW-3)
stating that Chirag was missing, he went to the house of his brother and along
with him the sister-in-law and other persons of the locality searched for
Chirag. Thereafter they went to police station, lodged a report and returned to
their locality and on hearing loud music in the house of the tantriks – Ishwari
Lal Yadav and Smt. Kiran Bai – and on getting suspicion, they went inside the
house along with others. He has also stated in his deposition that on
questioning, Ishwari Lal Yadav confessed that he has asked Hemant Sahu to
10
Crl.A.Nos.1416-17/17 etc.
kidnap Chirag for the purpose of human sacrifice. Thereafter puja was done
at the spot and Chirag was sacrificed and buried there. He has further stated
that at the time of human sacrifice, wife of Ishwari Lal Yadav, i.e., Smt. Kiran
Bai, their three children and all other accused were present. Sri Ram Avtar
Gada is also a neighbour of accused Ishwari Lal Yadav and Kiran Bai and
Savitri Bai and Poshan Singh, he was examined as PW-6. In his deposition,
he has stated that the accused Ishwari Lal Yadav and Smt. Kiran Bai were
known tantriks and other accused were their followers. On hearing the loud
music, he went to the house of the main accused, along with others and on
digging the puja area the body of Chirag was found which was in two parts –
severed at the neck and both cheeks were cut. Sri Parasnath Bhuarya who
was examined as PW-9 has stated that on the day of occurrence having come
to know that Chirag was missing, they all were searching for Chirag and on
hearing the loud music coming from the house of accused Ishwari Lal Yadav
and Kiran Bai, they entered their house and he could recognise accused
Ishwari Lal Yadav and since it was dark he could not recognise other accused.
He too stated that when they questioned the accused, the accused Ishwari Lal
Yadav and Kiran Bai confessed that they had sacrificed Chirag and begged for
mercy. Corporator of the area – Rajendra Rajak was examined as PW-10. In
his deposition, he has stated that Chirag’s grandmother has come to his
house and informed about the missing of her grandson Chirag. Thereafter he
has given a suggestion that an announcement be got made from loudspeaker
11
Crl.A.Nos.1416-17/17 etc.
of the mosque. Thereafter the announcement was made. All the people of
the locality were searching for Chirag. He too stated that the house of Poshan
Singh (PW-3) adjoins the house of accused Ishwari Lal Yadav. In his
deposition he has also stated that when the whereabouts of the child were not
known even after the announcement was made and the main accused were
continuously playing music, he along with other persons went inside the house
of accused Ishwari Lal Yadav and Kiran Bai. In his deposition he has also
stated that the main accused have stated that Chirag had been sacrificed in
pursuance of their tantrik activities and had been buried inside the house. At
the same time he stated, he cannot identify the other accused but stated that
some people were present there. The evidence of PW-12 – Dilip Thakur is
also on similar lines stating that after hearing the announcement about the
missing of Chirag he started searching for Chirag along with others. The
evidence of PW-13 – Arvind Singh is also to the same effect. One Sri Shiv
Kumar Rajak was examined as PW-16. In his deposition he has stated that
after hearing the announcement made about the missing of Chirag, son of
Poshan Singh, he joined others. After hearing loud music from the house of
Ishwari Lal Yadav and Kiran Bai he also entered along with others. He has
further stated that after digging the puja area, body of Chirag was found which
was in two parts. Some ash has been smeared on the head of Chirag and
both the cheeks had been cut and tongue was missing. Only thereafter police
was informed. He further stated that when accused Ishwari Lal Yadav was
12
Crl.A.Nos.1416-17/17 etc.
questioned, he confessed that he has asked Hemant Sahu to kidnap the child
and thereafter they had worshipped the child, put tilak, touched the feet then
sacrificed the child. He has also stated that on questioning, the accused
confessed that about six months earlier they had sacrificed one girl child also.
14. From the oral evidence on record of all the persons who have joined the
parents of the deceased child, i.e., Poshan Singh (PW-3) and Savitri Bai (PW5), it is clear that they have stated in one voice, that when they entered the
house of the main accused, they have found some area which was wet and
some puja articles were there. When they have noticed fresh mounds of
earth, they have removed the same and found the body of the deceased child
in two parts. All the witnesses have consistently stated that the body was in
two parts, its cheeks were cut and tongue was missing.
15. The first information with the police was recorded by PW-19 – Domar
Singh Thakur. The constable who took the application for post mortem was
examined as PW-1. The doctor who conducted the post mortem on the body
of Chirag was Dr. Lal Mohammad was examined as PW-14. One Patiram
Bareth was examined as PW-11. He was the Patwari of the area and in his
statement he has clearly stated that the house from which the body of the
child was recovered belongs to Ishwari Lal Yadav. PW-18 is the Assistant Sub
Inspector who took accused Ishwari Lal Yadav into custody and recorded his
statement under Ex.P21. The recovery of incriminating articles was
disbelieved by the High Court. From the evidence on record it is also clear
13
Crl.A.Nos.1416-17/17 etc.
that several independent witnesses who were examined on behalf of the
prosecution were in the group of search along with parents of the deceased
and they have entered the house of the main accused on hearing the loud
music. It is also equally clear from the evidence that police have come to the
scene of occurrence only afterwards, when PW-10 – Corporator has informed
the police.
16. From the above evidence on record, it is clear that the parents of the
deceased boy along with others were searching for the boy, on hearing the
loud music from the house of Ishwari Lal Yadav and Kiran Bai, they got
suspicious and entered the house. It is consistently, deposed by the
independent witnesses mentioned above, that when they entered the house of
the main accused, namely, Ishwari Lal Yadav and Kiran Bai, they have
confessed that they have committed murder of the deceased child for the
purpose of sacrifice. There is nothing on record to show that such
confessions are caused by inducement, threat or promise. When such
confessions are corroborated by other evidence on record, the trial court as
well as the High Court, rightly relied on such confessions. From the evidence,
it is proved that the place where the body of deceased Chirag was traced
belongs to Ishwari Lal Yadav and Kiran Bai and in absence of any explanation
from their side, there is no error committed by the trial court in accepting such
evidence on record. It is true that the extra judicial confession is a weak piece
14
Crl.A.Nos.1416-17/17 etc.
of evidence, but at the same time if the same is corroborated by other
evidence on record, same can be accepted.
17. To prove the charge of kidnapping and conspiracy, there is no
acceptable evidence on record. In absence of any corroborative evidence for
kidnapping of the deceased boy by Hemant Sahu and another, the evidence
on record cannot be accepted. Even to prove the common intention to attract
the provision under Section 34, IPC, it requires a pre-arranged plan and prior
concert. Therefore, there must be prior meeting of minds. The common
intention must exist prior to the commission of the act in a point of time. The
burden lies on the prosecution to prove that participation of more than one
person for commission of criminal act was done in furtherance of common
intention. If we closely analyse the evidence on record the common intention
stands proved between Ishwari Lal Yadav and Kiran Bai who are main
accused but at the same time there is no acceptable evidence against all
others to prove their guilt that they have committed the offence with the
common intention. Prosecution has failed to prove the common intention of all
other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran
Bai, either to kidnap or to murder the deceased child on the day of
occurrence. It is borne out from the evidence on record that all other accused
were disciples of self-claimed gurumata, namely, Kiran Bai and they were
regularly visiting the house of the main accused offering fruits and flowers.
There is no consistency of the persons named by the witnesses in the house
15
Crl.A.Nos.1416-17/17 etc.
of Ishwari Lal Yadav and Kiran Bai, when they all entered their house. Even
PW-5 Savitri Bai, in her deposition has clearly stated that all other accused
used to come regularly to the house of Ishwari Lal Yadav and Kiran Bai, along
with the fruits and flowers. The father of the child PW-3 Poshan Singh, in
cross-examination has stated that he knew the names of Ishwari Lal Yadav
and Kiran Bai earlier and he has come to know the names of all other
accused, after the occurrence of the incident. PW-6 Ram Avtar Gada, also
stated in her deposition that the accused Ishwari Lal Yadav and Kiran Bai
were known tantriks and other accused were their followers. Further PW-9
Parasnath Bhuarya, in his deposition has stated that he entered the house
along with the others and he could only recognise Ishwari Lal Yadav and as it
was dark he could not recognise all others. In absence of any consistent
definite evidence regarding presence of all other accused, along with the main
accused, namely, Ishwari Lal Yadav and Kiran Bai and further when the
prosecution has failed to prove either the common intention or the conspiracy
on their part along with the main accused, it is difficult to accept the case of
the prosecution as such they are entitled for the benefit of doubt. In view of
the evidence on record the prosecution has proved the guilt of the main
accused, namely, Ishwari Lal Yadav and Kiran Bai for the offence under
Section 302 read with Section 34 of the IPC. The common intention is to be
restricted only to the main accused Ishwari Lal Yadav and Kiran Bai but same
cannot be applied to others.
16
Crl.A.Nos.1416-17/17 etc.
18. Learned counsel for the appellants has relied on a judgment of this
Court in the case of Aghnoo Nagesia1
 to buttress his contention that the courts
below have committed error in recording a finding of guilt of the appellants
based on confession. But same is a case where the appellant therein was
charged under Section 302 IPC for murdering his aunt and others and there
were no eye witnesses to the murder. The principal evidence against the
appellant was First Information Report which contains a full confession of guilt
by the appellant himself. The said confession was made to a police officer
and the same is not provable having regard to Section 25 of the Indian
Evidence Act. Further reliance is also placed on a judgment of this Court in
the case of Sahadevan2
. In the aforesaid judgment of two-Judge Bench of
this Court it is held that the extra judicial confession is a weak piece of
evidence and court must ensure that same inspires confidence and is
corroborated by other prosecution evidence. If the totality of oral evidence on
record is considered in the case on hand, it is consistent and inspires
confidence of the case of the prosecution to prove the guilt of the main
accused. We are of the view that the aforesaid judgments would not render
any assistance to support the case of the appellants.
19. Learned counsel also relied on the judgment of this Court in the case of
Shambu Nath Mehra3
. In the aforesaid judgment this Court has held that in a
criminal case burden of proof is on the prosecution and Section 106 is
certainly not intended to relieve it of that duty. It is held that on the contrary, it
17
Crl.A.Nos.1416-17/17 etc.
is designed to meet certain exceptional cases in which it would be impossible,
or at any rate disproportionately difficult, for the prosecution to establish facts
which are “especially” within the knowledge of the accused and which he
could prove without difficulty or inconvenience. In this case on hand it is
proved by cogent evidence that the body of Chirag was found in the house of
Ishwari Lal Yadav. By applying the provision under Section 106 of the Indian
Evidence Act definitely it is the burden of the accused to explain the fact within
the knowledge of them how the body of Chirag came to be buried in their
house. The judgment relied on in the case of Shambu Nath Mehra3
 also
would not be helpful for the appellants. In the case of Firozuddin
Basheeruddin4
 this Court has discussed the ingredients which constitute
criminal conspiracy within the meaning of Section 120B of the IPC. As we are
of the view that the evidence on record is not sufficient to prove the guilt of the
appellants under Section 120B of IPC, as such it is not necessary to elaborate
any further.
20. Vide impugned judgment, the High Court has confirmed the death
sentence imposed on appellants Ishwari Lal Yadav and Kiran Bai. Learned
counsel for the appellants relied on the judgment in the case of Ronny5
wherein this Court has held, in a case of multiple accused, where the
culpability of each accused is not clear to examine whose case falls within the
“rarest of rare cases”, it would serve the ends of justice, if the capital
punishment is commuted into life imprisonment. On the other hand, learned
18
Crl.A.Nos.1416-17/17 etc.
counsel appearing for the State of Chhattisgarh has submitted that the High
Court has considered the aggravating and mitigating circumstances and
confirmed the death sentence so far as main accused, namely, Ishwari Lal
Yadav and Kiran Bai are concerned and there are no grounds to modify the
same. Learned counsel for the State also relied on judgment of this Court in
the case of Sushil Murmu6
. In the above said case in similar set of facts
where killing of a nine year old boy as a sacrifice to the deity was dealt with,
this Court has upheld the death sentence imposed on the appellant therein.
21. It is clearly well settled that normal punishment for the offence under
Section 302 IPC is life imprisonment but in a case where incident is of “rarest
of rare cases” death sentence is to be imposed. It is equally well settled that
only special facts and circumstances will warrant passing of death sentence
and a just balance has to be struck between aggravating and mitigating
circumstances, before the option is exercised. While referring to the earlier
cases in the case of Bachan Singh v. State of Punjab7
 and Machhi Singh v.
State of Punjab8
 further guidelines are summarised in the judgment in the
case of Sushil Murmu6. Paragraphs 15 and 16 of the judgment read as under :
“15. The following guidelines which emerge from Bachan Singh
case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be
applied to the facts of each individual case where the question
of imposition of death sentence arises: (Machhi Singh
case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] SCC p. 489,
para 38)
7
 (1980) 2 SCC 684
8
 (1983) 3 SCC 470
19
Crl.A.Nos.1416-17/17 etc.
(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
along with the circumstances of the “crime”.
(iii) Life imprisonment is the rule and death sentence is an
exception. 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 a just balance has to be struck between the
aggravating and the mitigating circumstances before the
option is exercised.
16. In rarest of rare cases when the collective conscience of the
community is so shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The community may
entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community.
(2) When the murder is committed for a motive which
evinces total depravity and meanness e.g. murder by a
hired assassin for money or reward or a cold-blooded
murder for gains of a person vis-à-vis whom the murderer
is in a dominating position or in a position of trust, or
murder is committed in the course of betrayal of the
motherland.
20
Crl.A.Nos.1416-17/17 etc.
(3) When murder of a member of a Scheduled Caste or
minority community etc. is committed not for personal
reasons but in circumstances which arouse social wrath,
or in cases of “bride-burning” or “dowry deaths” or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
(4) When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost all
the members of a family or a large number of persons of
a particular caste, community, or locality, are committed.
(5) When the victim of the murder is an innocent child, or
a helpless woman or an old or infirm person or a person
vis-à-vis whom the murderer is in a dominating position or
a public figure generally loved and respected by the
community.”
22. It is clear from the above judgment that this Court has laid down the
guidelines, which are to be considered, in a given case whether capital
punishment should be imposed or not. There cannot be any hard and fast
rule for balancing the aggravating and mitigating circumstances. Each case
has to be decided on its own merits. In a “rarest of rare case” capital
punishment is to be imposed. To come to conclusion in each case
aggravating and mitigating circumstances are to be considered. Further
factors like, age of the accused, possibility of reformation, gravity of the
offence etc. are also to be kept in mind.
23. In this case it clear from the evidence on record, the main accused,
namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the
two year old child Chirag as a sacrifice to the God. It is to be noticed, they
21
Crl.A.Nos.1416-17/17 etc.
were having three minor children at that time. Inspite of the same, they
committed the murder of the deceased, a child of two years of age brutally.
The head of the helpless child was severed, his tongue and cheeks were also
cut. Having regard to age of the accused, they were not possessed of the
basic humanness, they completely lacked the psyche or mindset which can be
amenable for any reformation. It is a planned murder committed by the
aforesaid two appellants. The appellants herein who are the main accused,
namely, Ishwari Lal Yadav and Kiran Bai were also convicted on an earlier
occasion for the offence under Section 302/34 and Section 201 of IPC in
Sessions Trial No.98/2011 by the learned Sessions Judge, Durg, for similar
murder of a 6 year old girl for which they were convicted and sentenced to
death, but such sentence was modified on appeal in Criminal Appeal No.1068
of 2014 by the High Court of Chhattisgarh at Bilaspur and they were
sentenced to undergo life imprisonment without any remission or parole. On
appeal to this Court, the order of the High Court is. Such conviction for similar
offence can be considered as aggravating factor. By following the guidelines
as mentioned in the case of Sushil Murmu6
 we are of the view that this is a
case of “rarest of rare cases” where death sentence imposed by the trial court
is rightly confirmed by the High Court. As the case is proved beyond any
reasonable doubt so far as the main accused are concerned, the judgment
relied on by the learned counsel for the appellants in the case of Ronny5
 also
is not helpful to them.
22
Crl.A.Nos.1416-17/17 etc.
24. For the aforesaid reasons the appeals filed in Criminal Appeal Nos.300-
301 of 2018 and Criminal Appeal Nos.298-299 of 2018 are allowed and
conviction recorded and sentence imposed upon the appellants therein is set
aside. They shall be released forthwith if their custody is not required for any
other case. Criminal Appeal Nos.1416-1417 of 2017 and Criminal Appeal
No.1418-1419 of 2017 filed by Ishwari Lal Yadav and Kiran Bai respectively
are partly allowed, setting aside the conviction recorded and sentence
imposed for the offence under Section 364/34 and 120B of the IPC. However,
their conviction under Section 302/34 and 201, IPC is confirmed, confirming
the death sentence imposed on them for the offence under Section 302/34
IPC. The sentence imposed on them under Section 201 IPC is also
confirmed.
….……………………………….J.
[ROHINTON FALI NARIMAN]
….……………………………….J.
[R. SUBHASH REDDY]
….……………………………….J.
[SURYA KANT]
New Delhi.
October 03, 2019.
23
Crl.A.Nos.1416-17/17 etc.
REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 1522 OF 2019
(Arising out of S.L.P.(Crl.)No.7947 of 2017)
Ishwari Lal Yadav & Anr. …..Appellants
vs.
State of Chhattisgarh ...Respondent
J U D G M E N T
R.Subhash Reddy,J.
1. Leave granted.
2. This appeal is filed by appellant Nos. 1 and
2 in Criminal Appeal No.1068 of 2014 filed
before the High Court of Chhattisgarh, Bilaspur,
aggrieved by the common judgment in Criminal
24
Crl.A.Nos.1416-17/17 etc.
Reference No.4 of 2014 and Criminal Appeal No.1068 of
2014. The appellants herein were charged for
offences punishable under Sections 364/34 read with
120B IPC, Sections 302/34 read with 120B IPC and Section
201 IPC. On the aforesaid charges they were tried in
Sessions Trial No.98 of 2011 by the learned
Sessions Judge, Durg, and they were convicted for the
offences charged and sentenced for imprisonment for life
and a fine of Rs.5,000/- was imposed for the offence
under Sections 364/34 read with 120B IPC, sentence of
death and a fine of Rs.5,000/- for the offence under
Sections 302/34 read with 120B IPC, rigorous imprisonment
for five years and a fine of Rs.2,000/- for the offence
under Section 201 IPC. In view of the death sentence
imposed, the learned Sessions Judge made a reference to
the High Court in Criminal Reference No.4 of 2014.
Challenging the conviction recorded and the sentence
imposed on them, appellants have filed Criminal Appeal
No.1068 of 2014. Vide impugned judgment dated 30.11.2016,
the High Court has confirmed the conviction recorded
against appellants. However, the death sentence imposed
by the Trial Court is modified to imprisonment for life.
It was further observed that appellants-accused are not
25
Crl.A.Nos.1416-17/17 etc.
entitled to any remission or parole. Aggrieved by the
said judgment this appeal is filed.
3. On 04.03.2010, Beeru Dewar (PW-2) had lodged a
complaint with the Police Station, Bhilai Nagar,
stating that his six year old daughter Ku. Manisha
is missing.
4. On 23.11.2010, a child by name Chiraj Rajput was
found missing from his house. A missing report was
given in Police Station, Bhilai Nagar, District
Durg. Thereafter, the parents were searching for
their child. On hearing loud music being played in the
house of appellants i.e. Ishwari Lal Yadav (A1) and Smt. Kiran Yadav (A-2), they entered their
house. When they entered the house they found
freshly dug mound of earth and appellants
herein who were claiming as “tantriks”, have admitted
that they had killed Chirag and buried him there to
attain “siddhi”. Further, it is the case of the
prosecution that during the investigation in the said
case, Mahanand Yadav (A-4), made a statement to the
police that about seven/eight months earlier, he had
kidnapped one small girl on the asking of A-1 and A-2.
26
Crl.A. @ SLP(Crl.) No. 7947 of 2017 27
5. The said girl had been killed by way of human
sacrifice and her body was buried in the compound of
the appellants herein. On 24.11.2010, one constable of
Bhilai Nagar Police Station made ‘O’ entry to the
effect, that an information has been received about
the kidnapped girl who had been killed by way of human
sacrifice and her skeletal remains were recovered
along with the cloths which she was wearing. On the
said date a statement was recorded under Ext.P-15.
On the basis of the aforesaid statement, investigation
was done and skeletal remains of the child were
recovered.
6. After recovery of the skeletal remains, DNA test
was conducted and it was determined that skeletal
remains found in the house of Ishwari Lal Yadav (A-1)
and Smt. Kiran Yadav (A-2) were of Ku.Manisha who was
also reported to be missing. After completing
investigation, the appellants herein were charged
for the offences alleged against them.
7. On behalf of the prosecution, PW-1 to PW-21 were
examined to prove the guilt of accused. The Trial
Court on appreciation of evidence on record has held
27
Crl.A. @ SLP(Crl.) No. 7947 of 2017 28
that the appellants and two other accused are guilty
for the charges framed against them, convicted and
sentenced the appellants as follows :
Accused Conviction
U/s.
Sentence
Ishwari Lal Yadav 364/34 and
120B IPC
Imprisonment for life and
fine of Rs.5000/-. In default
of payment of fine, further
rigorous imprisonment for
four months.
302/34 and
120B IPC
Death sentence and fine of
Rs.5000/-. In default of
payment of fine, further
rigorous imprisonment for
four months.
201 IPC Rigorous imprisonment for
five years and fine of
Rs.2000/-. In default of
payment of fine, two months
rigorous imprisonment.
Smt. Kiran Yadav @
Gurumata
364/34 and
120B IPC
Imprisonment for life and
fine of Rs.5000/-. In default
of payment of fine, further
rigorous imprisonment for
four months.
302/34 and
120B IPC
Death sentence and fine of
Rs.5000/-. In default of
payment of fine, further
rigorous imprisonment for
four months.
201 IPC Rigorous imprisonment for
five years and fine of
Rs.2000/-. In default of
payment of fine, two months
rigorous imprisonment.
28
Crl.A. @ SLP(Crl.) No. 7947 of 2017 29
8. On appeal, High Court has acquitted accused nos.3
and 4, namely, Rajendra Kumar Mahar and Mahanand Yadav
respectively. So far as appellants are concerned
their conviction is confirmed, the death sentence
imposed on them is modified to one of imprisonment for
life for offence under Section 302/34 and 120B, IPC.
At the same time their conviction and sentence is
confirmed for the offence under Section 364/34 and
120B IPC and 201 IPC.
9. We have heard Sri Siddhartha Dave learned senior
counsel appearing for the appellants and Sri Sumeer
Sodhi,learned counsel appearing for the respondentState of Chhattisgarh.
10. It is contended by the learned senior counsel for
the appellants that the prosecution has failed to
prove the guilt of accused beyond reasonable doubt and
inspite of the same they were convicted and sentenced
for the offences alleged. It is submitted that the
confessional statements ought not to have been relied
on in absence of any corroborative evidence to prove
29
Crl.A. @ SLP(Crl.) No. 7947 of 2017 30
the guilt of the accused. It is further contended that
there are material contradictions among the witnesses,
as such the evidence is unreliable. It is further
submitted that the femur bone that was preserved, was
sent to CDFC Hyderabad for DNA analysis, and in fact
the report relied upon by the prosecution was the FSL
Report, Sagar. Even the FSL Report does not
conclusively draw to the fact that PW-3 is the mother,
but, states that she is a biological relative. There
are also discrepancies with regard to the cloths found
on her. Further, it is submitted that appellants were
in custody from 23.11.2010 and recoveries were made on
24.11.2010 but disclosure statements were recorded
thereafter.
11. As such, it is submitted that, same raises a
strong probability that these weapons have been
planted by the police. It is further submitted that
even the blood which was found on the weapons,
there is no proof that it was human blood. In
support of his arguments, learned counsel has relied
on the judgments of this Court in the case of Aghnoo
30
Crl.A. @ SLP(Crl.) No. 7947 of 2017 31
Nagesia vs. State of Bihar9, Sahadevan & Anr. vs.
State of Tamil Nadu10, Shambu Nath Mehra vs. The State
of Ajmer11, Ronny vs. State of Maharashtra12, State of
Goa vs. Sanjay Thakran13, Prakash vs. State of
Karnataka14 and Firozuddin Basheeruddin & Ors. vs.
State of Kerala15.
12. To buttress the submission that as there is
strong probability that the weapons seized have been
planted by the police, as such recoveries cannot be
relied on, learned counsel relied on the judgment in
the case of Sanjay Thakran5. Further, reliance is
also placed on the judgment in the case of Prakash6.
In support of his submission that as the blood on the
weapon used in crime is not shown to be that of the
deceased, it raises a grave suspicion that
investigation was not fair and benefit of doubt is to
be given to the accused.
13. On the other hand Sri Sumeer Sodhi, learned
counsel appearing for the respondent-State has
9AIR 1966 SC 119
10(2012) 6 SCC 403,
111956 SCR 199
12(1998) 3 SCC 625,
13(2007) 3 SCC 755
14(2014) 12 SCC 133.
15(2001) 7 SCC 596
31
Crl.A. @ SLP(Crl.) No. 7947 of 2017 32
submitted that as the case relates to the gruesome
murder of a minor girl of six years, for the purpose
of human sacrifice and from the oral evidence on
record, the prosecution has proved the guilt of the
accused beyond reasonable doubt, as such there are no
grounds to interfere with the impugned judgment. It is
submitted that when a child of two years by name
Chirag was missing, his parents were on search for
missing child along with family members and residents
of locality, on hearing the loud music emanating from
the house of the appellants, they got suspicious and
entered the house. It is submitted that at that point
of time both the appellants-accused have confessed
their guilt of committing the act of murder of Chirag
and burying the body in the precinct of the house. It
is submitted that looking at the fresh mound of mud,
same was excavated and the body of Chirag was found in
two parts. At that time one of the accused in the
said case also revealed committing of similar offence
of a girl child. It is submitted that there was
already a complaint of missing child of six year old
daughter of Beeru Dewar (PW-2), lodged on 04.03.2010,
32
Crl.A. @ SLP(Crl.) No. 7947 of 2017 33
investigation was made. Further investigation of the
police revealed that they have kidnapped and committed
murder of minor girl by name Km.Manisha. She was also
buried near to the place of Chirag. As such by
excavating skeletal remains along with cloths were
taken out. It is submitted that from the evidence on
record it is clearly proved by confession of several
independent witnesses, which is corroborated by other
evidence on record to prove that Manisha was murdered
for the purpose of human sacrifice by appellants, as
such they were rightly convicted and sentenced by the
Trial Court and their sentence of death was modified
by the High Court to that of imprisonment for life
without any remission or parole. As such, it is
submitted that there are no grounds to interfere with
the same. Learned counsel has also relied on the
judgment in the case of Sushil Murmu vs. State of
Jharkhand16.
14. Having heard the learned counsels on both the
sides, we have perused the impugned judgment and also
the other material on record.
16(2004) 2 SCC 338.
33
Crl.A. @ SLP(Crl.) No. 7947 of 2017 34
15. To prove the guilt of appellants-accused, several
independent witnesses were examined. From the evidence
on record it is clear that on 23.11.2010 when there
was search by the parents of the deceased Chirag
Rajput for their missing child along with others of
the locality, on hearing the loud music from the house
of the appellants, they got suspicious and entered the
house. Upon entering the house a freshly dug mound of
earth was found in the house of the appellants and on
confession made by the appellants body of Chirag was
traced. Further, as it was disclosed by one of the
accused that about 7/8 months earlier, they have
kidnapped one small girl on the asking of A-1 and A-2
and they have handed over the girl to Ishwari Lal
Yadav and Kiran Yadav, further investigation was made
in view of the complaint lodged by Beeru Dewar (PW-2)
on 04.03.2010. On 04.03.2010, Beeru Dewar (PW-2)
filed a report to the effect that his six year old
daughter Ku.Manisha was missing. On further
investigation, the skeletal remains were also
recovered from the house of the appellants from the
place adjoining from where body of Chirag was taken
34
Crl.A. @ SLP(Crl.) No. 7947 of 2017 35
out. In oral evidence Beeru Dewar (PW-2), father of
the deceased stated that when they went to the house
of Ishwari Lal Yadav (A-1), they found the skeletal
remains and they have also identified the cloths of
his daughter Ku. Manisha.
16. Mother of the deceased Smt. Durga Bai was
examined as PW-3. In her deposition, she has stated
that about 1½ years earlier to the date of statement,
she had gone to Kasaridih at about 06.00 pm for
begging. Her daughter was wearing one red coloured
two piece set and at about 8.00 pm when pooja was over
in the temple, her daughter Ku. Manisha stated that
she wanted to defecate. She also stated in her
deposition that after sometime when she went back to
the place of electric pole where her daughter was
defecating, she did not find her there. It is stated
that at the instance of police officials they went to
the house of appellants at Ruabandha and in her
presence a grave was dug which was inside the house of
the appellants and cloths of her daughter were lying
there along with some pieces of bones. She identified
the cloths to be that of her daughter Ku.Manisha.
35
Crl.A. @ SLP(Crl.) No. 7947 of 2017 36
17. Dilip Thakur was examined as PW-11, who was one
amongst the persons who went inside the house of the
appellants in search of other child Chirag. He has, in
clear terms, stated that at that time both the
appellants Ishwari Lal Yadav and Smt. Kiran Yadav
confessed that earlier they had sacrificed one small
girl child whom they had brought from Kasaridih and
that she had been buried in their house.
18. PW-13 Shrikant Gawander stated that on pointing
out by Ishwari Lal Yadav, some mound in the courtyard
was dug up and inside the same skeletal remains were
found along with red coloured frock and red coloured
underwear.
19. PW-16 is the Assistant Sub Inspector, who has
recorded the merg intimation (Exhibit P-28) and
(Exhibit P-29).
20. One Khuman Singh Sahu was examined as PW-21. In
his deposition he has stated that he knows accused
Ishwari Lal Yadav and his wife Smt. Kiran Yadav,
appellants herein, who are his neighbours. He has
stated that both the accused A-1 and A-2 were engaged
36
Crl.A. @ SLP(Crl.) No. 7947 of 2017 37
in witchcraft. Rajendra Kumar (A-3) and Mahanand Yadav
(A-4) are the disciples of (A-1) and (A-2). He was
also one of the members in the team in search of
missing boy Chirag earlier. He too stated in his
deposition that the appellants have admitted that one
girl by name Ku. Manisha who had been kidnapped
earlier, had been sacrificed by them. A confession is
also to the effect that they have buried the girl next
to the place where Chirag’s body has been buried.
21. From the evidence on record, it is clearly
established beyond reasonable doubt that Km.Manisha is
the daughter of PW-2 and PW-3 and was missing since
04.03.2010. Though, the said complaint was recorded
in the Police Out Post Padmanabhpur, Durg, on
04.03.2010 but there was no breakthrough. Only after
Chirag’s case has come to light, based on admissions
by the appellants and two others, further
investigation revealed that the appellants earlier
also committed similar offence of murder of Km.Manisha
for their tantrik activities and buried the body of
minor girl in their house.
37
Crl.A. @ SLP(Crl.) No. 7947 of 2017 38
22. The confessional statements made to the police by
the appellants, cannot be the basis to prove the guilt
of the accused but at the same time there is no reason
to discard the confessions made to the independent
witnesses at the time when Chirag’s body was found,
prior to the arrival of police. It is true that extra
judicial confession, is a weak piece of evidence but
at the same time if the same is corroborated by other
evidences on record, such confession can be taken into
consideration to prove the guilt of the accused. In
the case on hand, the evidence from independent
witnesses is in one voice and consistent. The medical
evidence on record also substantiated the case of the
prosecution. In addition to the same, PW-2 and PW-3
who are the parents of the deceased have identified
the cloths, which the deceased child was wearing on
the date of missing. It is also clear from the
evidence that the skeletal remains were removed. They
have also found the cloth pieces, attached to skeletal
remains. The colour of such cloth pieces was tallied
with the description in the missing report lodged by
PW-2 earlier on 04.03.2010. As such it is clearly
38
Crl.A. @ SLP(Crl.) No. 7947 of 2017 39
proved beyond any reasonable doubt that the appellants
are responsible for the offence alleged against them.
23. Learned counsel for the appellants has relied on
a judgment of this Court in the case of Aghnoo
Nagesia1 to buttress his contention that the courts
below have committed error in recording a finding of
guilt of the appellants based on confession. But same
is a case where the appellant therein was charged
under Section 302 IPC for murdering his aunt and
others and there were no eye witnesses to the murder.
The principal evidence against the appellant was First
Information Report which contains a full confession of
guilt by the appellant himself. The said confession
was made to a police officer and the same is not
provable having regard to Section 25 of the Indian
Evidence Act. Further reliance is also placed on a
judgment of this Court in the case of Sahadevan2. In
the aforesaid judgment of two-Judge Bench of this
Court it is held that the extra judicial confession is
a weak piece of evidence and court must ensure that
same inspires confidence and is corroborated by other
prosecution evidence. If the totality of oral
39
Crl.A. @ SLP(Crl.) No. 7947 of 2017 40
evidence on record is considered in the case on hand,
it is consistent and inspires confidence of the case
of the prosecution to prove the guilt of the main
accused. We are of the view that the aforesaid
judgments would not render any assistance to support
the case of the appellants.
24. Learned counsel also relied on the judgment of
this Court in the case of Shambu Nath Mehra3. In the
aforesaid judgment this Court has held that in a
criminal case burden of proof is on the prosecution
and Section 106 is certainly not intended to relieve
it of that duty. It is held that on the contrary, it
is designed to meet certain exceptional cases in which
it would be impossible, or at any rate
disproportionately difficult, for the prosecution to
establish facts which are “especially” within the
knowledge of the accused and which he could prove
without difficulty or inconvenience. In this case on
hand it is proved by cogent evidence that the body of
Chirag was found in the house of Ishwari Lal Yadav.
By applying the provision under Section 106 of the
Indian Evidence Act definitely it is the burden of
40
Crl.A. @ SLP(Crl.) No. 7947 of 2017 41
the accused to explain the fact within the knowledge
of them how the body of Chirag came to be buried in
their house. The judgment relied on in the case of
Shambu Nath Mehra3 also would not be helpful for the
appellants. In the case of Firozuddin Basheeruddin7
this Court has discussed the ingredients which
constitute criminal conspiracy within the meaning of
Section 120B of the IPC. As we are of the view that
the evidence on record is not sufficient to prove the
guilt of the appellants under Section 120B of IPC, as
such it is not necessary to elaborate any further.
25. The other judgments relied on by the learned
counsel for the appellants in the case of Sanjay
Thakran5 and the judgment in the case of Prakash6 also
would not render any assistance to the case of the
appellants having regard to facts and circumstances of
the present case. Apart from the recoveries there is
a strong and consistent evidence of independent
witnesses to prove the guilt of the accused. The FSL
Report, Sagar, conclusively establishes that PW-3 is
the biological relative of the deceased. The said
evidence if considered along with other oral evidence
41
Crl.A. @ SLP(Crl.) No. 7947 of 2017 42
of PW-2 and PW-3, it is proved beyond reasonable doubt
that the skeletal remains of the body removed from the
house of the appellants was only that of their
daughter Ku.Manisha. It is also proved from the
evidence on record that the house belonged to the
appellants where skeletal remains were removed.
26. Further, as there is no acceptable evidence on
record except the alleged confession to prove the
offence under Sections 364/34 read with 120B IPC, the
appellants are entitled for acquittal for offences
punishable under Sections 364/34 and 120B IPC. At the
same time, by burying the dead body of the deceased
caused disappearance of evidence of offence, they are
rightly convicted for offence under Section 201 IPC.
27. Having regard to gruesome nature of murder, the
Trial Court has imposed the punishment of death for
offence under Sections 302/34 read with 120B IPC but
on appeal the High Court has modified the sentence to
that of imprisonment for life without any remission or
parole. Considering the gruesome nature of murder the
sentence imposed by the High Court is to be confirmed.
42
Crl.A. @ SLP(Crl.) No. 7947 of 2017 43
28. For the aforesaid reasons, this Criminal Appeal
is partly allowed, setting aside the conviction
recorded and sentence imposed for the offence under
Sections 364/34 read with 120B IPC. However, we
confirm the conviction recorded and sentence imposed
for the offence under Sections 302/34 and Section 201
IPC.
 .....................J.
 [ROHINTON FALI NARIMAN]
.....................J.
[R. SUBHASH REDDY]
.....................J.
[SURYA KANT]
New Delhi,
October 03,2019
43

whether the Executing Court could have given one more extension beyond 2013 or not. = appellant was a lessee under the respondents pursuant to a lease deed dated 19.11.1952 commencing from 01.04.1953. The lease was for a period of 30 years ending on 31.03.1983 and contained a clause giving right of renewal of the lease for another period of 30 years commencing from 01.04.1983 to 31.03.2013. - suit was decreed -The plaintiff entitled for a decree for specific performance of contract of getting executed a registered lease deed from the defendants for a period of 30 years commencing from 1.4.1983 to 31.3.2013 on a yearly rent of Rs.700/- in respect of the suit-lands bearing R.S. Nos.169, 171, 180, 181 and 182 situated at Bagalkot. The plaintiff is also entitled for costs of the suit. Excuting court executed registered lease deed incorporating a renewal clause for another 30 years renewal from 2013 - EP was closed - Basing the appellant filed another suit for specific performance of execution of lease deed- High court remanded the case to executing court decided whether the Executing Court could have given one more extension beyond 2013 or not. -Apex court confirmed the same.

whether   the   Executing   Court   could   have   given one more extension beyond 2013 or not. =   appellant   was   a lessee   under   the   respondents   pursuant   to   a   lease   deed
dated   19.11.1952   commencing   from   01.04.1953.   The   lease was   for   a   period   of   30  years   ending   on   31.03.1983   and contained   a   clause   giving   right   of   renewal   of   the  lease for another period of 30 years commencing from 01.04.1983 to 31.03.2013. - suit was decreed -The   plaintiff   entitled   for   a   decree   for specific   performance   of   contract   of   getting executed   a   registered   lease   deed   from   the defendants for a period of 30 years commencing from 1.4.1983 to 31.3.2013 on a yearly rent of Rs.700/-   in   respect   of   the   suit-lands   bearing R.S.   Nos.169,   171,   180,   181   and   182   situated at Bagalkot.  The plaintiff is also entitled for costs of the suit.
Excuting court executed registered lease deed incorporating a renewal clause for another 30 years renewal from 2013 - EP was closed - Basing the appellant filed another suit for specific performance of execution of lease deed- High court remanded the case to executing court decided whether   the   Executing   Court   could   have   given one more extension beyond 2013 or not. -Apex court confirmed the same.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7593 OF 2019
(Arising out of SLP(C) No.16682 of 2019)
M/S BAGALKOT UDYOG LIMITED                  APPELLANT(S)
                                VERSUS
SHIVASHANKARGOUDA & ORS.                    RESPONDENT(S)
J U D G M E N T
Leave granted.
Heard learned counsel for the parties.
The short issue involved in this case is whether the
High Court was right in remitting the matter back to the
Executing  Court   to  decide   whether  the   order  passed   by  it
is in accordance with decree passed by the Civil Court or
not. 
The   undisputed   facts   are   that   the   appellant   was   a
lessee   under   the   respondents   pursuant   to   a   lease   deed
dated   19.11.1952   commencing   from   01.04.1953.   The   lease
was   for   a   period   of   30   years   ending   on   31.03.1983   and
contained   a   clause   giving   right   of   renewal   of   the   lease
for another period of 30 years commencing from 01.04.1983
to 31.03.2013. 
1

The   appellant   exercised   his   right   to   extend   the
lease but the respondents refused to extend the lease for
a   period   of   30   years.   Therefore,   the   appellant   filed   a
suit for specific performance of the condition permitting
him to extend the lease deed for 30 years. This suit was
decreed   and   the   relevant   portion   of   the   decree   reads   as
follows:  
"2.   That   the   costs   of   this   suit   be   awarded
from the defendants to the plaintiff.
This   suit   coming   on   this   10th   day   of
June   1991,   for   final   disposal   before   Sri.
Rudragouda   S.   patill   B.A.LL.B   (Spl)   Principal
Munsiff,  Bagalkot  in  the  present  of  Sri.  G.G.
Dharawadkar,   Advocate   for   the   plaintiff   and
Sri. K.S. Deshapande, Advocate for Defendants,
it is hereby ordered and decreed as under:-
The   plaintiff   entitled   for   a   decree   for
specific   performance   of   contract   of   getting
executed   a   registered   lease   deed   from   the
defendants for a period of 30 years commencing
from 1.4.1983 to 31.3.2013 on a yearly rent of
Rs.700/-   in   respect   of   the   suit-lands   bearing
R.S.   Nos.169,   171,   180,   181   and   182   situated
at Bagalkot. 
The plaintiff is also entitled for costs
of the suit.
And   it   is   further   ordered   and   decreed
that the defendants to pay the sum of Rs.201/-
to the plaintiff being the costs of this suit.
Given   under   my   hand   and   seal   of   this
court this 10th day of June 1991.
(Rudragouda S. Patil)
Principal Munsiff, Bagalkot"
The   appellant   filed   petition   for   execution   of   the
decree   and   the   respondents   were   proceeded   ex   parte.   An
2

Advocate   Commissioner   was   appointed   to   execute   the   lease
deed on behalf of the absent respondents. It appears that
lot  of   interim  orders   were  passed   asking  for   report  from
the   administrative   side   of   the   Court   for   preparation   of
the   draft   lease   deed.   Finally,   the   draft   lease   deed   was
prepared   and   in   the   draft   lease   deed   there   was   again   a
clause   granting   a   right   for   one   more   extension   from
01.04.2013   onwards.   The   lease   deed   was   drafted   in   the
same   manner   as   the   earlier   lease   deed.   The   Executing
Court   on   the   administrative   side   virtually     retyped   the
lease   deed   as   the   earlier   lease   deed   of   1952   including
the   renewal   clause.   Thereafter,   this   draft   deed   was
finally   registered   on   17.08.2010.   The   plaintiff   got   his
execution   petition   dismissed   as   having   been   satisfied   on
20.08.2010.
The   appellant   then   filed   a   fresh   suit   for   specific
performance   for   renewal   of   the   lease   deed   w.e.f.
01.04.2013   and   when   notice   of   this   suit   was   served   upon
the   respondents   they   filed   a   writ   petition   presumably
under   Article   227   of   the   Constitution   of   India   praying
for   setting   aside   the   order   dated   20.08.2010   but   in   the
petition   it   was   urged   that   the   Executing   Court   while
drafting   the   lease   deed   in   terms   of   the   decree   had
travelled  beyond   the  scope   of  the   decree  by   again  giving
an   extension   clause   of   30   years   w.e.f.   01.04.2013.   This
writ   petition   was   dismissed   on   the   ground   of   not   being
maintainable   since   the   execution   petiton   itself   was
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disposed of on 20.08.2010. Thereafter the appellant filed
a   petition   under   Section   115   of   the   Code   of   Civil
Procedure.
This petition  was contested  but the  High Court  vide
a detailed order has held as follows:
".....Therefore,   this   Court   is   of   the
considered view that the Executing Court, even
in the peculiar facts and circumstances of the
present   case,   must   examine   the   question
whether   it   was   traversing   beyond   the   judgment
and   decree   in   OS   No.20/1984   in   approving   the
draft   as   submitted   by   the   respondent   and
permitting   execution   and   registration
thereof...."
Shri   C.U.   Singh,   learned   senior   counsel   appearing
for   the   appellant   urges   that   the   order   dated   20.08.2010
cannot   be   challenged   in   proceedings   under   Section   115   of
the   Code   of   Civil   Procedure   since   this   order   only
disposes   of   the   execution   petition   in   terms   of   the
statement   of   the   decree   holder   and   in   case   the   order   is
set   aside   it   will   amount   to   revival   of   proceedings   and
proceedings   will   not   come   to   an   end.   The   second
submission is that the remedy of the appellant is to file
application under Order XXI Rule 106 of the Code of Civil
Procedure and not to file a petition under Section 115 of
the  Code   of  Civil   Procedure.  His   last  submission   is  that
the   respondents   have   resorted   to   proceedings   under
Section   115   of   the   Code   of   Civil   Procedure   since   their
remedy   to   challenge   the   order   proceeding   against   them   ex
4

parte has become time barred in view of the limitation of
30   days   mandated   in   order   XXI   Rule   106   of   the   Code   of
Civil Procedure.
In reply, it is contended by Shri S.N. Bhat, learned
counsel for the respondents, that the respondents are not
challenging the order whereby they have been proceeded ex
parte.   It   is   submitted   that   even   accepting   the   position
that   the   respondents   have   rightly   been   proceeded   ex
parte, then also the decree must be executed in terms of
the   decree   and   the   executing   Court   cannot   give   relief
more  than   that  granted   under  the   decree.  The   issue,  that
arises   is   whether   the   Executing   Court   could   have   given
one more extension beyond 2013 or not. 
Since,   the   matter   has   been   remanded   back   in
proceedings   under   Section   115   of   the   Code   of   Civil
Procedure, we would not like to make any comments on this
issue and leave it open to the Executing Court to decide
whether   the   decree   envisages   the   grant   of   extension
beyond  01.04.2013.   We  are   only  dealing   with  the   issue  as
to   whether   the   High   Court   was   right   in   exercising   its
jurisdiction   under   Section   115   of   the   Code   of   Civil
Procedure.
As   noted   above,   the   petition,   filed   by   respondents
against   the   order   dated   04.08.2010,   was   dismissed   by   the
High Court in view of the order passed on 20.08.2010. It
was   virtually   held   that   nothing   survives   in   the   writ
petition and, therefore, the same is not maintainable. At
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the   same   time,   the   appellant   was   given   liberty   to   seek
relief in accordance with law.
The respondents have not taken recourse to Order XXI
Rule   106   and,   therefore,   they   are   estoppal   from   urging
that   they   were   wrongly   proceeded   ex   parte.   That   part   of
the   proceedings   are   final.   That,   however,   cannot   prevent
them   from   urging   that   the   order   passed   by   the   Executing
Court   is   beyond   the   scope   of   the   decree   passed   by   the
Civil Court. No appeal lies against any such order and no
provision has been pointed out to us where an appeal can
lie against this aspect of the matter where the Executing
Court allegedly travelled beyond the scope of the decree.
No   party   can   be   left   remedy-less.   The   High   Court
dismissed   the   petition   under   Article   227   of   the
Constitution of India holding that the challenge to order
dated   04.08.2010   was   no   longer   alive   in   view   of   the
subsequent   proceedings   of   20.08.2010.   We   are   also   of   the
view   that   merely   because   the   execution   petition   will
revive   is   not   a   ground   to   hold   that   the   order   is   not   a
final   order   which   will   bring   an   end   of   the   proceedings.
If   the   Executing   Court   accepts   the   contention   of   the
respondents   that   the   lease   could   not   have   been   extended
beyond   31.03.2013   then   also   it   will   bring   matters   to   an
end.   There   will   be   no   continuity   of   proceedings   in   that
sense.   Therefore,   the   High   Court   was   well   within   its
jurisdiction   to   entertain   the   matter.   The   order   passed
calls   for   no   interference   and,   therefore,   the   appeal   is
6

dismissed.
We   make   it   clear   that   the   Executing   Court   will
decide   the   issue   as   to   whether   the   decree   limited   the
renewal of the lease deed up to 31.03.2013 or the decree
permitted   another   extension   thereafter.   The   Executing
Court   shall   remain   uninfluenced   by   any   observations   made
by the High Court or by this Court. 
...................J.
  (DEEPAK GUPTA)
...................J.
    (ANIRUDDHA BOSE)
New Delhi
September 24, 2019
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ITEM NO.23               COURT NO.13               SECTION IV-A
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).16682/2019
(Arising out of impugned final judgment and order dated 24-04-2019
in CRP No.1113/2013 passed by the High Court Of Karnataka, Dharwad
Bench)
M/S BAGALKOT UDYOG LIMITED                         Appellant(s)
                                VERSUS
SHIVASHANKARGOUDA & ORS.                           Respondent(s)
(FOR ADMISSION and I.R.)

Date : 24-09-2019 This petition was called on for hearing today.
CORAM :
         HON'BLE MR. JUSTICE DEEPAK GUPTA
         HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Appellant(s)
Mr. C.U. Singh, Sr. Adv.
Mr. Aayush Agarwala, Adv.
Ms. Ila Sheel, Adv.
Mr. Pramod B. Agarwala, AOR
                 
For Respondent(s)
Mr. S. N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. Nandish Patil, Adv.
                   
          UPON hearing the counsel the Court made the following
                             O R D E R
Leave granted.
The   appeal   is   dismissed   in   terms   of   the   signed   reportable
judgment.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT)                                   (RENU KAPOOR)
COURT MASTER (SH)                               BRANCH OFFICER
(signed reportable judgment is placed on the file)
8