Summary
The appellant, a 25-year-old rickshaw puller, was convicted of raping and murdering his cousin's 8-year-old daughter at Dabra on 19.09.2014 and sentenced to death under Section 302 IPC, with life imprisonment under Sections 376(2)(i) and 376A IPC and Section 6 of the POCSO Act. The Madhya Pradesh High Court set aside the Section 376A conviction but confirmed the rest and the death sentence. A three-Judge Bench of the Supreme Court upheld the convictions on the circumstantial chain — last seen, emerging from the bada where the body was recovered, human blood on his pants, nail marks and no explanation under Section 313 CrPC — holding that non-conduct of DNA profiling under Section 53A CrPC is a flaw but not fatal, and commuted the death sentence to life imprisonment with 30 years' actual imprisonment without remission, the crime and criminal tests not having been applied below.
Issues
- Whether a conviction for the rape and murder of a child resting on circumstantial evidence can be sustained where DNA profiling of the accused's samples contemplated by Section 53A CrPC was not carried out.
- Whether the testimony of the deceased's maternal grandfather (PW-2) on last seen and on the recoveries, and of a 'chance witness' (PW-12) who saw the accused coming out of the place of occurrence, is reliable, and whether non-examination of the victim's father as attesting witness is fatal.
- Whether human blood on the accused's pants seized from his residence, whose group could not be determined, can be treated as an incriminating circumstance.
- Whether the homicidal death of an 8-year-old by throttling amounts to murder under Section 300 IPC or only culpable homicide punishable under Section 304 IPC.
- Whether the death sentence satisfies the 'crime test', 'criminal test' and 'rarest of rare' test and the requirement of special reasons under Section 354(3) CrPC, and what substitute sentence is appropriate for the brutal rape and murder of a child by a 25-year-old first offender.
Provisions considered
- Section 53A (medical examination of a person accused of rape); Section 313; Section 354(3), Code of Criminal Procedure, 1973Section 53A facilitates the prosecution; non-conduct of DNA profiling is a flaw in investigation, but following Sunil v. State of M.P. (three-Judge Bench, considering Krishan Kumar Malik) a negative or absent DNA result does not by itself defeat the prosecution and the court must weigh the other evidence. The appellant's answers of 'it is false' or 'I do not know' to every incriminating circumstance under Section 313 supplied an additional link. Section 354(3) requires special reasons for a death sentence, which demand consideration of aggravating and mitigating circumstances. (¶¶ 21, 22, 23, 25, 27, 28, 30, 47, 52)
- Sections 6 and 106, Indian Evidence Act, 1872PW-12's evidence that at about 9 pm he saw the appellant coming out of the bada dusting his clothes was admissible as res gestae under Section 6, being so connected with the fact in issue as to form part of the same transaction (Sukhar v. State of U.P.); under Section 106, once the deceased was last seen with the appellant the burden of explaining how he parted company lay on him and his failure provided an additional link (Kashi Ram; Pattu Rajan). (¶¶ 32.1, 32.2, 32.3, 32.4, 36, 37)
- Sections 300, 302, 304 and 376(2)(i), Indian Penal Code, 1860The court must first see whether the act falls within clauses firstly to fourthly of Section 300 and then whether any of the five exceptions applies; constricting the neck of an 8-year-old with such force as to cause the recorded injuries cannot be without intention to kill (clause 1) or at least knowledge of imminent danger to life (clause 4), and no exception was shown, so the plea of Section 304 failed. The rape conviction under Section 376(2)(i) stood on the pudendal injuries and semen in the vaginal swab. (¶¶ 18, 20, 48, 50, 51)
- Section 6 (aggravated penetrative sexual assault), Protection of Children from Sexual Offences Act, 2012The age dispute was given up before the High Court and could not be revived; in any event the parents' and grandparents' evidence, the autopsy surgeon's estimate and the school admission records proving the date of birth as 10.09.2006 established that the victim was 8 years old, so the conviction under Section 6 called for no interference. (¶ 49)
Held
- Expert opinion, like any other evidence, requires proper appreciation by the court, though a doctor's opinion supported by the post-mortem report carries great weight on whether a death is homicidal. PW-10's unshaken evidence with the post-mortem report of petechial haemorrhage beneath the subcutaneous tissues of the neck established asphyxia by throttling, and the grade-four perineal tear extending to the anus with the uterus torn and protruding, together with blood and semen in the vaginal swab, sustained the concurrent findings of homicidal death and rape. (¶¶ 16.4, 17, 18, 20, 48)
- A fair investigation is necessary for a fair trial, but an accused is not entitled to acquittal solely on account of defects in investigation if the remaining evidence is cogent (Mir Mohammad Omar). The lapse or omission, purposeful or otherwise, to carry out DNA profiling cannot by itself decide the fate of a trial for rape, especially one combined with murder; a positive DNA result would be clinching, but a negative result or its absence does not for that sole reason defeat the prosecution, and in a circumstantial case the court must still consider whether the links form a complete chain pointing only to the accused's guilt. (¶¶ 22, 23, 24, 25, 27, 28, 29, 30)
- The 'last seen' theory applies to a crime committed on the sly at night without eyewitnesses, though where the time gap is long it is unsafe to convict on it alone (Nizam) and corroboration should be sought. Here conviction did not rest on last seen alone: PW-3 proved that the child was sent to fetch bidis at about 8.30 pm and never returned; PW-4, a fellow rickshaw puller with whom the appellant was drinking, deposed that the appellant followed the child after asking where she was going; and PW-2, the maternal grandfather, saw the appellant following her. Relationship to the victim is no ground to discredit a witness (Dalip Singh; Khurshid Ahmed), the more so when PW-2 is equally related to the appellant, his nephew; a suggestion of animosity repudiated by the witness and unsupported by evidence is inconsequential; and the appellant's twin contentions that an independent witness ought to have been examined instead of PW-2 and that non-examination of the victim's father, the other attesting witness, is fatal, are paradoxical — evidence is weighed, not counted, and it is for the prosecution to decide how many witnesses to examine. (¶¶ 31, 32, 32.1, 32.5, 33, 34, 35, 35.1)
- Describing an independent witness as a 'chance witness' does not by itself denude the admissibility or relevance of his evidence if nothing was brought out to make his version suspicious (Chanakya Dhibar); PW-12's unshaken evidence that he saw the appellant at about 9 pm coming out of the dilapidated, unused bada and dusting his clothes was rightly treated as an incriminating circumstance. Recovery of the victim's concealed body and clothes from that very bada the next day on the appellant's disclosure statement, proved by the investigating officers and corroborated by a journalist, the Tehsildar and PW-2, is a crucial circumstance (Jaharlal Das; Mohd. Mannan), and there is nothing wrong in relying on reliable, corroborated police testimony (Govindaraju). (¶¶ 37, 38, 39, 40, 41)
- Having set aside the Section 376A conviction and rejected the recovery of an underwear, the High Court rightly examined whether the cumulative effect of the remaining circumstances pointed unerringly to the appellant's guilt (Dipak Haldar); in circumstantial cases it is the quality, not the quantity, of evidence that counts. Human blood on the pants seized from the appellant's residence remained an incriminating circumstance despite non-detection of the blood group: where other circumstances exist non-detection is not fatal (Kansa Behera), and once recovery follows a disclosure the matching of groups loses significance (R. Shaji), particularly as the appellant offered no explanation under Section 313. Four nail scratches on his neck and face found within 48 hours of the incident, again unexplained, were a further circumstance. The chain was complete and wholly inconsistent with innocence, and his failure to explain any circumstance was an additional link (Trimukh Maroti Kirkan; Pattu Rajan). (¶¶ 43, 44, 45, 46, 47)
- Every sane person is presumed to intend the natural result of his act; constriction of the neck of an 8-year-old girl by a 25-year-old man with force sufficient to cause internal haemorrhage cannot be without intention to take her life, and if the throttling preceded the rape, the manner of the ravishment was in any event an act known to be so imminently dangerous that it must in all probability cause death, so the case falls under clause 1 or clause 4 of Section 300; the only plea, that the neck injury occurred 'quite naturally' during the rape, is palpably untenable and brings the case under no exception, and the Section 304 contention fails. (¶ 50)
- The trial court and the High Court were swayed by the horrendous features of the crime and the helplessness of the victim; sentencing on the day of conviction is not per se illegal, but the aggravating and mitigating circumstances were not given proper attention and the 'crime test' and 'criminal test' explained in Shankar Kishanrao Khade and surveyed in Pappu v. State of U.P. were not followed. The brutal rape and murder of an 8-year-old daughter of the appellant's own cousin is undoubtedly aggravating, but the appellant had no criminal antecedents, came from a poor socio-economic background, was 25 at the time and had unblemished conduct in jail, so the possibility and probability of reformation could not be ruled out and the case is not one of the rarest of rare where no alternative to death exists. (¶¶ 52, 53, 54, 55, 56)
- Where life imprisonment with ordinary remission would be inadequate but death is unwarranted, the court may, following Swamy Shraddananda as affirmed in Union of India v. Sriharan, award imprisonment for life beyond the application of remission for a fixed term; given the extreme brutality of the rape and murder of the hapless child, the death sentence is commuted to imprisonment for life with no premature release or remission before 30 years' actual imprisonment. (¶¶ 57, 58)
Result
Appeals partly allowed: the convictions under Sections 302 and 376(2)(i) IPC and Section 6 of the POCSO Act, and the sentences for the latter two offences, upheld; the death sentence under Section 302 IPC commuted to imprisonment for life with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing 30 years' actual imprisonment; fines and default stipulations confirmed; all substantive sentences to run concurrently.