Summary
The Supreme Court upheld the conviction of the appellant for kidnapping, aggravated penetrative sexual assault and murder of a four-year-old boy on circumstantial evidence, but commuted the death sentence to 25 years' rigorous imprisonment without remission, holding that the case did not fall in the rarest of rare category since reformation was not ruled out.
Issues
- Whether the circumstantial evidence (last seen, presence near the scene, injuries on the accused, conduct in pointing out the victim's clothes, blood-group match) formed a complete chain establishing guilt.
- Whether the failure to conduct a DNA test was fatal to the prosecution.
- Whether the presumptions under Sections 29 and 30 of the POCSO Act were attracted and rebutted.
- Whether the death sentence should be confirmed or a fixed term without remission imposed.
Provisions considered
- Section 106, Indian Evidence Act, 1872Having taken the small child from near his home with very short time before death, the appellant was bound to explain how he parted company with him; his failure to give any explanation was an additional link in the chain. (¶¶ 19, 20, 21)
- Section 8, Indian Evidence Act, 1872Following A.N. Venkatesh v. State of Karnataka, the appellant's conduct in leading the investigating team and panchas to where the victim's clothes were hidden was held admissible as conduct, irrespective of admissibility of the statement under Section 27. (¶¶ 10, 24)
- Section 27, Indian Evidence Act, 1872The Court found it unnecessary to decide the admissibility of the disputed discovery and recovery panchnamas, as the other circumstances established guilt even without the Section 27 evidence. (¶¶ 9, 24, 27)
- Sections 29 and 30, Protection of Children from Sexual Offences Act, 2012The post-mortem injuries, the injury on the appellant's prepuce, the blood-group match and the other circumstances laid the foundational facts for the presumptions of commission of the offence and culpable mental state; the appellant did not rebut them. (¶¶ 28, 29, 30)
- Sections 3, 4, 5 and 6, Protection of Children from Sexual Offences Act, 2012Penetrative assault through the anus on a child under twelve causing injury constituted aggravated penetrative sexual assault punishable under Section 6; conviction under Sections 4 and 6 was upheld. (¶¶ 29, 30)
- Sections 302, 364 and 377, Indian Penal Code, 1860Enticing the child with the promise of ice-cream despite the aunt's objection and without the guardians' consent made out Section 364; the assault made out Section 377; death by throttling made out murder. Convictions upheld; death sentence under Section 302 commuted. (¶¶ 7, 30, 31, 41)
Held
- Applying the five principles in Sharad Birdhichand Sarda v. State of Maharashtra, the circumstances were fully established and formed a complete chain consistent only with the appellant's guilt. (¶¶ 12, 31)
- Where an accused takes a small pre-school child from near the child's home, he is expected to return the child or explain to whom he entrusted him; an accused last seen with the deceased shortly before death must offer a satisfactory explanation of how they parted, and failure to do so under Section 106 is an additional link in the chain. (¶¶ 17, 19, 21)
- Minor discrepancies in timings in testimony given about two years after the event are natural and immaterial; the hostility of one witness did not detract from the natural evidence of the victim's aunt and an independent shopkeeper who saw the appellant take the child. (¶¶ 15, 16)
- The appellant's presence near the spot where the body was found at about the time of the crime, the unexplained abrasions on his genitals, and the match of blood group O in the semen swabs from the victim with his own, after a satisfactory chain of custody, were further links. (¶¶ 22, 23, 25)
- The conduct of an accused in pointing out to the police the place where the victim's clothes were hidden is relevant under Section 8 of the Evidence Act, irrespective of whether the accompanying statement is admissible under Section 27. (¶¶ 24, 27)
- Failure to conduct DNA profiling, though undesirable, is not by itself fatal; following Veerendra v. State of Madhya Pradesh, the court must still assess whether the remaining evidence forms a complete chain. (¶ 26)
- Though the crime was diabolic, the appellant was 24, had no antecedents, came from a poor background, had reported intellectual disability and psychotic features, showed good conduct and remorse in jail; reformation was not ruled out, life imprisonment was not foreclosed and the case was not rarest of rare. (¶¶ 32, 33, 34, 35, 36)
- As ordinary life imprisonment, which normally works out to 14 years, would be grossly inadequate for the crime, the Swamy Shraddananda course was followed and, applying Nawas v. State of Kerala, a fixed term of 25 years without remission was held to be a just desert. (¶¶ 36, 37, 38, 39)
Result
Appeals partly allowed; convictions under Sections 302, 364 and 377 IPC and Sections 4 and 6 of the POCSO Act maintained; death sentence substituted with 25 years' rigorous imprisonment without remission, other sentences to run concurrently; fines set aside. Connected SLP against denial of parole dismissed with liberty to pursue remedies in law.