death sentence imposed on the appellant is modified to that of life imprisonment i.e to suffer for life till his natural death, without any remission/commutation.= I am clear in my mind that in this case on hand, the mitigating circumstances of the appellant, dominate over the aggravating circumstances, to modify the death sentence to that of life imprisonment. Even as per the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Further, age of the appellant was 25 years at the relevant time and conviction is solely based on circumstantial evidence. Taking all such aspects into consideration, the death penalty imposed on the appellant is to be modified to that of life imprisonment, for the offence under Section 302 IPC.= Further, in a recent three Judge Bench Judgment of this Court, in the case of Vijay Raikwar v. State of Madhya Pradesh22, where there was an offence involving rape and murder of a girl aged about 7½ years, while confirming the conviction of the offences under Section 376(2)(f) and Section 201 IPC and also under Sections 5(i), 5(m) and 5(r) read with Section 6 of the POCSO Act, this Court commuted the death sentence to life imprisonment. 38. In the aforesaid judgments, in a similar set of facts, this Court has modified the sentence to life imprisonment. In this case also there is no previous crime record for the appellant.= death sentence imposed on the appellant is modified to that of life imprisonment i.e to suffer for life till his natural death, without any remission/commutation.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1488-1489 OF 2018
Ravi S/o Ashok Ghumare ….. Appellants(s)
VERSUS
The State of Maharashtra …..Respondents(s)
JUDGMENT
SURYA KANT, J.
These appeals assail the judgment dated 20th January,
2016 passed by the High Court of Judicature at Bombay,
Bench at Aurangabad, confirming the death reference in the
Sessions Case No. 127 of 2012 decided by the Additional
Sessions Judge, Jalna, in which the appellant having been
found guilty of committing offences punishable under Sections
302, 363, 376 and 377 of the Indian Penal Code (for short,
“the IPC”), has been awarded the sentence of death under
Section 302, IPC along with the sentence of rigorous
imprisonment(s) of different durations with fine for the rest of
offences. The Trial Court as well as the High Court have
1
concurrently held that the case falls within the exceptional
category of `rarest of the rare’ cases where all other
alternative options but to award death sentence, are
foreclosed.

  1. The facts leading to the aforestated conclusion are to the
    following effect:-
  2. The informant Iliyas Mohinuddin (P.W.9) had been a fruitseller based in Jalna. On 06.03.2012 at about 5.00 p.m. while
    he was as usual busy in selling fruits, his wife informed him
    that their daughter (in short, `the victim child’) who was 2
    years old, was missing. He along with his relatives started
    looking for the child. During their search, the informant came
    to know from Azbar (P.W.2) that the appellant had been
    spotted drunk and was distributing chocolates to small
    children in the lane near the Maroti Temple. The appellant was
    also a resident of the same lane. The informant went to the
    appellant’s house which was found locked. As the
    whereabouts of the missing child were still not known, the
    informant lodged a formal missing report to the police. He
    also passed on the information to the police as received from
    Azbar (P.W.2) regarding the distribution of chocolates amongst
    small children by the appellant. The police, therefore, came to
    2
    the appellant’s house which had two doors. One was found
    locked from outside while the other was locked from inside.
    Police broke open the door and entered the house along with
    the informant, his brother and a few other persons. They
    found the appellant in the house; deceased-victim was lying
    under the bed in a naked and unconscious condition. Blood
    was oozing out from her private parts and had multiple injuries
    on her body. She was covered in a blanket and taken to the
    hospital where the doctor declared her brought dead. Inquest
    panchnama was prepared and the body was sent for post
    mortem. A panel of doctors, including Dr. B.L. Survase and Dr.
    Bedarkar (P.W. 7 and P.W.8 respectively) performed the post
    mortem and found multiple injuries on the person of the
    victim. They opined that the death was caused due to
    throttling. The informant – father of the victim lodged the
    report at 12.30 a.m. on 07.03.2012 on the basis of which
    Crime No. 56 of 2012 was registered. The appellant was
    arrested at about 1.00 a.m. on the same day by the
    Investigating Officer Rajinder Singh Gaur (P.W.12). The clothes
    worn by the appellant were seized and the seizure panchnama
    was drawn in the presence of panchnama witnesses – Sheikh
    Arshad and Sheikh Nayeem.
    3
  3. Iliyas (P.W.9), the father of the deceased-victim also
    produced the clothes worn by her which too were duly seized
    in the presence of Syed Muzeeb (P.W.1) and Mohd. Akbar
    Khan. The scene of crime panchnama was drawn and articles
    found on the spot were also seized. The appellant was
    referred for medical examination to Ghati Hospital,
    Aurangabad. The appellant’s blood samples were taken on
    11.3.2012 and sent to Mumbai for DNA examination along with
    the seized muddemal. The blood samples of the appellant
    were taken again on 13.03.2012 and were sent for the DNA
    test.
  4. On filing of the chargesheet, charges under Sections 363,
    376 and 302, IPC were framed to which the appellant did not
    plead guilty and claimed trial. Thereafter, prosecution moved
    an application for framing an additional charge under Section
    377, IPC. The said application was allowed and charge under
    Section 377 was framed to which also the appellant did not
    plead guilty. His defence was of total denial and that he was
    falsely implicated.
  5. The prosecution examined 12 witnesses in all. The
    following points thus arose for consideration of the Trial Court:-
    “1. Whether the prosecution proves that accused on
    4
    6.3.2012 at about 16.00 Hrs. in the vicinity of Indira
    Nagar, old Jalna, Taluka and District : Jalna,
    kidnapped xxx.. d/o Iliyas Pathan a minor girl under
    16 years of age from her lawful guardianship &
    without his consent, and thereby committed an
    offence punishable u/s 363 of I.P.C.?
  6. Whether the prosecution further proves that
    accused on above date, time and place of offence,
    committed rape on xxx.. and thereby committed an
    offence punishable u/s 376 of IPC?
  7. Whether the prosecution further proves that
    accused on above date, time and place of offence,
    committed carnal intercourse against the order of
    nature with minor girl xxx.. and thereby committed
    an offence punishable u/s 377 of IPC?
  8. Whether the prosecution further proves that
    accused on above date, time and place of offence,
    committed murder intentionally or knowingly
    causing death of xxx.., and thereby committed an
    offence punishable u/s 302 of IPC?”
  9. The Trial Court discussed the evidence at length in the
    context of each point and answered them in the affirmative. It
    held the appellant guilty of the offences referred to above.
    The Trial Court thereafter compared the aggravating circumstances’ vis-a-vis themitigating circumstances’ and
    having found that the crime was committed in a most brutal,
    diabolical and revolting manner which shook the collective
    conscience of the society, it found that the R.R. Test (rarest of
    the rare cases) is fully attracted, hence capital punishment
    was imposed on the appellant under Section 302, IPC.
    5
  10. The High Court considered the death reference as well as
    the appeal preferred by the appellant against the trial Court
    judgment and after scrutinising the prosecution evidence,
    reached the following factual issues:-
    “A. Accused was found with victim girl in a house one
    door of which was locked from outside and another
    door closed from inside,
    B. Multiple injuries found on the person of victim,
    C. Medical evidence showing that the girl was
    forcibly raped and done to death,
    D. Recovery of blood stained jeans pant and full bush
    shirt (torn) from the accused,
    E. Motive,
    F. Failure of accused to offer plausible explanation to
    the incriminating circumstances against him.”
  11. The High Court held that the circumstances conclusively
    prove that all the pieces of the puzzle fit so perfectly that they
    leave no reasonable ground for a conclusion consistent with
    the hypothesis of the innocence of the appellant, rather the
    same leads to the irrefutable conclusion that it is the appellant
    who took away the victim child to his house, sexually
    assaulted her, committed unnatural intercourse and throttled
    her to death. Consequently, the conviction of the appellant
    under Sections 302, 376, 377 and 363 of the IPC. was upheld.
    6
  12. The High Court thereafter engaged itself on the question
    of quantum of sentence and as to whether the R.R. Test was
    attracted to the facts and circumstances of this case. The
    High Court drew up the balance sheet of the aggravating’ and mitigating’ circumstances and after their comparative
    analysis, it concurred with the extreme penalty awarded by
    the trial Court and confirmed the death sentence.
  13. We have heard Ms. Nitya Ramkrishnan, Learned Counsel
    for the appellant and Mr. Nishant R. Katneshwarkar, Learned
    Counsel for the State of Maharashtra on merits as well as on
    the contentious issue re: quantum of sentence and have
    minutely perused the relevant record.
  14. Learned Counsel for the appellant argued that there are
    chinks in the culpability calculus that have a direct bearing on
    the quantum of sentence as well. She urged that according to
    Azbar (P.W.2), the appellant was distributing chocolates to
    children near Maroti Temple around 3.30 to 4.00 p.m. and that
    the mother of the victim called her husband Iliyas (P.W.9)
    around 5.00 p.m. to inform that the deceased-victim had been
    missing since 4.00 p.m. There is no evidence that she was
    one amongst the children to whom the appellant was
    distributing chocolates; where had the victim been until 4.00
    7
    p.m. and where and when was she last seen and in whose
    company? The argument is that the victim was not lastly seen
    in the company of the appellant. It was then urged that the
    appellant’s house is four houses away from that of the victim;
    there are other houses next and opposite to that of the
    appellant, therefore, it is unbelievable that nobody saw the
    victim child being taken away by the appellant. She pointed
    out that five policemen entered the house of the appellant and
    the informant (P.W.9) also statedly accompanied them but the
    police officials in their depositions have not made any such
    reference.
  15. According to Learned Counsel for the appellant, Azbar
    (P.W.2) also went to the house of the appellant only after
    learning that the victim had been traced in the house of the
    appellant, yet he claims to have seen the appellant under the
    cot while the victim was on the cot inside the house. It was
    unbelievable that even after the police had entered the 10×10
    room and had hunted him out, the appellant would still remain
    under the cot until P.W.2 reached the spot. Similarly, Aslam
    (P.W.5) who is the maternal uncle of the victim, also went to
    the appellant’s house only after the victim had been found
    there. Yet, he too found the appellant under the cot.
    8
    According to the Learned Counsel, all these witnesses, namely,
    P.W.2, P.W.3, P.W.4, P.W.5 and P.W.9 have been set out after
    learning that the child had been found purportedly to describe
    a scene immediately upon entering the house, which naturally
    cannot be the case. It was strongly urged that most of these
    persons did not witness the crime or scene of the crime as
    they have deposed that the child and the appellant were found
    in a state of undress, only Dilip Pralhadrao Tejan (P.W.3), who is
    a police official, says that the appellant was found outraging
    the modesty of the child. It thus suggests that the testimony
    of all these witnesses is not accurate and at best it leads to an
    inference that the child was found in the same house as was
    the appellant. It was pointed out that the testimony of P.W.3,
    P.W.4 and P.W.9 varies at the point as to what they saw on
    entering the house. However, P.W.3’s statement claiming that
    the appellant was found outraging the modesty of the child
    under the bed, is different from the version of others who
    found a cloth around the bed and could see the appellant and
    the victim only when the cloth was removed. P.W.9 (father of
    the victim child) does not state the same facts as have been
    described by P.W.3 or P.W.4 and thus there is inconsistent
    version on what was seen inside the appellant’s house upon
    9
    entering.
  16. It was then urged that the houses in the area were in a
    close cluster and it would have been difficult for the appellant
    to take the child away without being noticed by anyone.
    Further, prosecution has failed to establish two crucial facts,
    namely, the place where the victim child was last seen and the
    estimated time of her death. In the absence of surety of these
    two facts as to when was the victim child last seen alive and
    her approximate time of death, the recovery of her dead body
    between 9.30-10.00 p.m. in the house of the appellant per se
    is insufficient to establish the charge beyond reasonable
    doubt.
  17. It was contended that even as per P.W.9 (the informant)
    the appellant along with his family had been residing in that
    very house since the past 7-10 years, but the prosecution has
    failed to explain as to where had the other members of the
    family been during those six hours, between 4.00 p.m. to
    10.00 p.m. on that fateful day. This assumes significance in
    view of the DNA report which merely indicates that they are
    from the same paternal progeny.
  18. Learned Counsel lastly urged that since the basis for the
    match in DNA report is the comparison with the blood sample
    10
    of the appellant, it was imperative upon the prosecution to
    establish that the sample indeed was that of the appellant
    only. The person, who drew the blood sample has not been
    examined as a witness nor the contemporary record of the
    procedure for taking blood sample has been explained. There
    is only a bald statement of the Investigating Officer that the
    appellant was referred to Ghati hospital, Aurangabad. There is
    no memo or material to show as to who collected the blood
    sample of the appellant, when was the sample collected and
    where and how was it preserved. As against it, the medical
    examination reports and sample collection reports of the
    appellant (Exbts. 21, 21A and 22) indicate that no blood
    sample was taken which shows the incorrectness of the
    Investigating Officer’s testimony. The chemical lab at Mumbai
    also does not mention any receipt of a blood sample of the
    appellant. She argued that the prosecution has strongly relied
    on the D.N.A. evidence despite the fact that the method of
    analysis used, i.e., Y-Chromosome Short Tandem Repeat
    Polymorphism (Y-STR) has certain inherent limitations due to
    which accurate identification of the accused cannot be
    established beyond a reasonable doubt. Unlike other
    processes like autosomal STR analysis, Y-STR analysis does not
    11
    allow for individual identification in the same male lineage. It
    was thus contended that the prosecution has failed to bring
    the guilty at home, hence the appellant deserves the benefit
    of doubt.
  19. Learned State Counsel, however, refuted all the
    appellant’s contentions and took us through the ocular and
    medical evidence, especially the eye-witness’s account to urge
    that there is no error or lapse worth whispering committed by
    the prosecution in establishing the appellant’s guilt. He
    extensively referred to the relevant parts of the impugned
    judgments to explain as to how the aggravating’ and mitigating’ circumstances have been drawn up and weighed
    before awarding or confirming the death sentence.
  20. Before entering the hassled arena of sentencing, it is
    apropos to recapitulate the facts and evidence on record to
    find out whether the prosecution has been able to prove the
    charges against the appellant beyond any reasonable doubt.
  21. The victim was not even 2-year old when she died an
    unnatural death. The post mortem was conducted on
    07.03.2012 by a panel of doctors, which included Dr. B.L.
    Survesh (P.W.7) and Dr. Bedarkar (P.W.8). According to Dr. B.L.
    Survesh, the external injuries corresponded to the internal
    12
    injuries and were sufficient in the ordinary course of nature to
    cause death. All the injuries were ante-mortem and the cause
    of death was throttling. The Medical Board found following
    injuries on external examination on the body of the deceasedvictim:-
  22. Linear abrasion on right side of chest 2 cm, oblique,
    reddish in colour.
  23. Abrasion over left zygomatic area, 5 x 2 cm.
  24. Linear abrasion, left side of neck, above clavicle
    reddish, about 1 cm in length and 2 in number.
  25. Linear abrasion, left scapular region, two in number,
    one below other 2½ cm. reddish in colour.
  26. Abrasion, 5 in number, at the centre over lower
    back, ½ x 1 cm each in size.
  27. Contrusion over vault ½ x ½ cm.
  28. Abrasion over right sub mandibular region, 1 cm
    reddish.
  29. Abrasion, right supra clavicular region, 2 in number,
    ½ cm each, over above other.
  30. The panel of doctors further found following injuries on
    the internal examination of the body:-
  31. Neck dissection under the skin, contusion to muscle
    and subcutaneous tissues corresponding to abrasions
    on skin.
  32. Right and left lungs congested.
  33. Heart was found congested.
    13
  34. Right side of the heart was full of blood and left side
    was empty.
  35. Tongue was inside the mouth between the teeth.
  36. Stomach was congested and was containing semidigested food.
  37. On the vaginal examination of the victim, evidence of
    tear at posterior vaginal wall and triangular shape tear 2x1x½
    cm. was noticed and hymen was found ruptured. Dr.Survase
    (P.W.7) has deposed that “on perusal of report as to
    examination of anal swab in DNA report, and, considering
    observation in clause 15 of the post mortem report, I opine
    that there was unnatural sex.” Similarly, Dr.Bedarkar (P.W.8)
    after perusing the same DNA report and post mortem report
    has stated that, “ I opine that vaginal and anal intercourse was
    performed.”
  38. It, therefore, stands established beyond any pale of doubt
    that the victim child was subjected to forcible vaginal and
    anal/unnatural intercourse and she died of asphyxia due to
    throttling.
    Connection between the appellant and the crime
  39. Azbar (P.W.2) had known the appellant since their
    childhood as both of them had been residing in the same lane.
    14
    On 06.03.2012, while going towards his house at about 3.30 to
    4.00 p.m. he met the appellant who was drunk and was
    distributing chocolates to children near Maroti Temple. His
    friend Gayas called him [Azbar (P.W.2)] at 5.00 p.m. to inform
    that the victim, daughter of Iliyas, was missing. They started
    looking for the child near Bhagya Nagar Railway Station,
    Mhada Colony, Aurangabad Chouphuly, Sanjay Nagar, etc.
    Then he got to know that the victim had been traced in the
    house of the appellant. P.W.2 then went to the appellant’s
    house at Indira Nagar. There was a crowd of people there and
    police was already present when he entered the house and
    saw that the child was lying on a cot and a blanket was put on
    her body. The appellant was under the said bed. The witness
    also slapped the appellant 2-3 times before the police took the
    later. P.W.2 was called on the next day on 07.03.2012 for spot
    panchnama. One white paper, a pencil, blue broken bangle,
    one pass book carrying names of Reena and Lakshmi Bai
    Ghumare and one piece of a saree was found and seized by
    the police and kept in an envelope. The panchnama bears his
    signatures. In his cross-examination, P.W.2 has categorically
    stated that though the parents of the appellant are alive but
    they were not present at his house at the time of occurrence.
    15
    He has explained in detail as to how the panchnama was
    prepared.
  40. Dilip Pralhadrao Tejan (P.W.3) the police official, had been
    attached to Kadim Jalna police station on 06.03.2012. The
    missing report lodged by Ilias (P.W.9) about his 2-year old
    daughter was handed over to P.W.3 for inquiry. P.W. 3 along
    with policemen Katake, Jawale, Rathod and Chavan was in
    Indira Nagar area of Jalna where he got to know that the
    appellant was seen distributing chocolates and icecream/fruits
    to minor children. P.W.3 along with other police officials,
    therefore, went to the house of the appellant between 9.30 to
    9.45 p.m. and found that there were two doors, one was
    locked from outside and the other from inside. P.W.3 peeped
    through the gap in the door and noticed some cloth around
    the bed. He called the appellant by name but nobody
    responded. The witness then broke open the door and entered
    the house and found the appellant outraging the modesty of
    the victim child under the bed. The police-party covered the
    baby with a quilt and placed her on the bed. Meanwhile about
    20 persons followed them including Aslam, the maternal uncle
    of the missing child. The victim child was sent along with
    Aslam for medical treatment. Since several more agitated
    16
    persons gathered at the scene, the police rescued the
    appellant and took him to the police station. The peole were
    demanding that the appellant be handed over to them. On a
    specific court question as to in which manner and in what
    circumstances P.W.3 saw the accused and the deceased, he
    had answered in no uncertain terms that the “deceased kid
    was found naked and blood was oozing from her mouth and
    private parts. There was no shirt on the person of the
    accused, his jean and trouser was found on his knee. Accused
    was also found naked.”
  41. Constable Sanjay Katake (P.W.4) was also a member of
    the police team led by API Dilip Pralhadrai Tejan which was
    looking for the missing child in Indira Nagar area of Jalna.
    P.W.4 has also unequivocally deposed that they were informed
    by the people in the vicinity that the appellant `used’ to
    distribute icecream and chocolates among the children and on
    that day also he was seen doing so. The police team,
    therefore, went to the house of the appellant which had two
    doors. One of the door was locked from outside whereas the
    other was from inside. The police party called the appellant
    by name, but he did not respond. Then, they peeped through
    the slit of the door and noticed a bed and some piece of cloth
    17
    around it and got suspicious that there was somebody under
    the bed. They broke open the door and entered the house.
    A.S.I. Tejankar removed the cloth around the bed and the
    police team found the appellant and the victim child under the
    bed in naked condition. Tejankar placed the child over the
    bed. “Blood was found oozing from mouth and private part of
    that kid”. The victim was wrapped in a blanket and rushed to
    the hospital through her maternal uncle. 4-5 persons who had
    entered the house along with the police team insisted on
    having the custody of the appellant. Meanwhile, 150-200
    more persons gathered at the spot. The appellant was
    rescued from the mob and taken to the police station. The
    mob became aggressive and started pelting stones on the
    police vehicles and the policemen. Some loss was also caused
    to the house of the appellant. P.W.4 is the same police official
    who lodged the report at Kadim Jalna Police Station (Exbt. 45).
    In his cross-examination, it was suggested to P.W.4 that there
    is a population of about 5000 in the vicinity and that he never
    accompanied Mr. Tejankar, ASI and he knew nothing about the
    incident.
  42. Aslam (P.W.5) has deposed that deceased was daughter
    of his sister. The husband of his sister, Iliyas informed him on
    18
    06.03.2012 on telephone that deceased was missing and he
    asked him to bring a photograph of the victim to the police
    station. Aslam brought one photograph of the child to Kadim
    Jalna police station and lodged the missing report. The
    witness thereafter went to look for the missing child in Ambad
    Chouphuly Railway Station and Moti Bagh area. While he was
    still looking for her, one Hussain Pathan informed him on
    phone that the child had been found so he immediately went
    to the Indira Nagar area, Jalna to the house of the appellant.
    He noticed that the appellant was under the bed while the
    victim was lying on the bed. There were no clothes on the
    person of the child; she was wrapped in a blanket. He then
    took the victim to Deepak Hospital, Jalna, then to the Civil
    Hospital, Jalna where the doctors declared her brought dead.
    The witness has denied in the cross-examination that there
    was any quarrel between Ilias (P.W.9), father of the victim and
    the appellant.
  43. Nand Kumar Vinayakrao Tope (P.W.6) is a police head
    constable, who was on duty at Kadim Jalna police station on
    12.03.2012. He has deposed that on 11.03.2012 he was
    asked to carry muddemal along with a covering letter which
    he deposited on 12.03.2012 in C.A. Office, Mumbai. The
    19
    covering letter is Exbt. P-51. He also carried the blood sample
    of the appellant to C.A. Office, Mumbai and deposited the
    same on 14.03.2012. He has categorically stated in his crossexamination that the blood sample of the appellant bore
    signatures of the doctors and panches.
  44. We may now briefly refer to the statement of Ilias (P.W.9)
    – father of the victim girl. He has deposed that the child was
    about two years old; he resides in Indira Nagar, Jalna along
    with his family, including his wife Aysha; the appellant was
    also residing in the same lane. On the date of occurrence, i.e,
    06.03.2012 he was selling fruits in Nutan Vasahat area of Jalna
    when his wife informed him on phone at about 5.00 p.m. that
    their daughter had been missing since 4.00 p.m. He
    immediately went home where his father and brother had
    already reached. They started looking for the child in the
    adjoining localities. The witness informed the police about his
    missing daughter who also started searching for her. Azhar
    Usman meanwhile informed him that the appellant while
    under the `influence of liquor’ was distributing chocolates to
    children. P.W.9 then went to the house of appellant which was
    found locked from outside. The missing report of the child was
    lodged around 8.00-8.30 p.m. The witness also passed on the
    20
    information to the police that he had gathered from Azhar.
    The Police party too, therefore, reached at the house of
    appellant and they broke open one of the doors. The witness
    and his brother entered the house along with the police and
    found that his daughter was lying under the bed and the
    appellant was also lying under the bed. His daughter was
    naked and there were injuries on her person aw well as private
    parts. Police laid the child on the bed and after covering her
    with a cloth she was taken to Deepak Hospital, Jalna where
    doctors informed that the victim was already dead. The
    appellant killed her by pressing her throat. The witness also
    identified his signatures on the report lodged by him Exbt. P67. The witness in his cross-examination denied any dispute
    with the father of the appellant in connection with the
    purchase of the premises.
  45. The other witness whose statement has a direct bearing
    on connecting the appellant with the crime is API
    Rajendrasingh Prabhusingh Gaur (P.W.12), who was attached
    to Kadim JalnaPolice Station on 06.03.2012. He arrested the
    appellant at 1.00 a.m. on 07.03.2012. The appellant was
    brought to the police station by ASI Tejankar. He has further
    stated that “blue jeans and green shirt on the person of
    21
    accused was seized. There were blood-stains and semen
    stains on it. The seizure panchnama Exbt. P-19 bears my
    signature and also of the accused.” He has further deposed
    that the father of the victim produced knicker and frock worn
    by the deceased victim and also the blanket in which she was
    wrapped. Blue bangle, painjan were also seized under
    panchnama Exbt. P-32, which bears his signatures along with
    those of the panches. Muddemal articles shown at S.No. 125
    in the chargesheet were the same. Muddemal article Nos. 6
    and 7 in the chargesheet were the clothes of the appellant.
    The police officer (P.W.12) went to the spot and also collected
    a paper having blood-stains, piece of blue bangle, a passbook
    of post office and yellow piece of a saree having blood-stains.
    All these articles were seized under his signatures and of the
    panches. P.W.12 has further stated that the appellant was
    referred to Ghati Hospital, Aurangabad for his medical
    examination and report Nos. 21 and 21A were obtained.
    Appellant’s blood sample was taken on 11.03.2012 from S.D.H.
    Ambad and all the blood samples were sent to Mumbai for
    DNA examination along with a forwarding letter Exbt. P-51.
    Since the said blood sample was not sent as per the
    prescribed format, another blood sample of the appellant was
    22
    taken by the Medical Officer at S.D.H. Ambad on 13.03.2012
    and it was sent along with the covering letter Exbt. P-52.
    P.W.12 also sent viscera of the victim on 12.03.2012 along with
    letters which bear his signatures. The report of the viscera
    Exbt. P-81 was also obtained. P.W.12 had further identified the
    reports regarding clothes on the person of the victim and the
    appellant Exbt. P-82. P.W.12 has been subjected to a fairly
    long cross-examination but no discrepancy, having bearing on
    the merits of the case, has been extracted.
  46. After a tenacious analysis of the testimonies of the
    witnesses with respect to the facts seen by each one of them,
    there remains no room to doubt that on 06.03.2012 the
    appellant after taking liquor was seen distributing chocolates
    to children sometime around 3.30/4.00 p.m. The victim child
    went missing around 4.00 p.m. as was informed to Ilias (P.W.9)
    by his wife at about 5.00 p.m. The information of her missing
    was immediately circulated amongst the family
    members/relatives and all of them desparately started
    searching for her. Meanwhile, the missing report was lodged
    with police as well. During such search operations by the
    police and also the family members of the missing child, it
    surfaced that the appellant was distributing chocolates to
    23
    allure children near Maroti Temple on that day and around that
    time the child went missing. The police-team, Iliyas – the
    father of the victim and his brother, genuinely apprehensive
    and smelling something foul, reached the house of the
    appellant and nabbed him red-handed under the bed with the
    victim in naked condition. It further stands established
    conclusively that deceased had been brutally assaulted and
    subjected to vaginal and unnatural intercourse. The victim
    had been inflicted multiple injuries on face, head, neck,
    external genetalia as well as inside the uterus and urethra.
    We may in this regard refer to, in particular, the deposition of
    Dilip Pralhadrai Tejan (P.W.3), who after making forceful entry
    inside the appellant’s house, found him outraging the modesty
    of the child. The appellant had the special knowlege as to in
    what circumstances the victim child suffered those multiple
    injuries. The burden to prove that those injuries were not
    caused by him was on the appellant alone in view of Section
    106 of the Evidence Act, which he has miserably failed to
    discharge though the evidence on record proves beyond doubt
    that the victim child was in unlawful custody of the appellant
    from about 4.00 p.m. till she breathed her last breath due to
    the beastly attack on her.
    24
    Scientific Evidence connecting the appellant with the
    Crime:
  47. Dr. Bhanu Das Survase (P.W.7) was a member of the
    panel of doctors, who conducted post mortem on the dead
    body of the victim. He has testified that samples of swabs,
    blood sample and nails sample of the victim were taken by
    them. So is the statement of Dr. Bedarkar (P.W.8) who has
    stated that “various types of swabs, nasal swabs, superficial
    vaginal swab, deep vaginal smear on slide, superficial vaginal
    smear on slide, anus swab, skin scraping of blood on thigh and
    abdomen, nails and blood samples of xxx.. were taken.” He
    has further deposed that all samples were seized and handed
    over to the police. Police Inspector Rajendrasingh Prabhusingh
    Guar (P.W.12) has stated on oath that after arresting the
    appellant, the blue jeans and green shirt on his person were
    seized and that there were blood-stains and semen stains on
    it. The knicker and frock of the victim along with blanket in
    which she was wrapped as well as various articles collected
    from the scene of crime including a piece of saree having
    blood-stains, were seized. The blood sample of the appellant
    was also taken and all the seized articles/samples were sent to
    Mumbai for examination.
    25
  48. Shrikant Hanamant Lade (P.W.11) Assistant Director in
    Forensic Science Laboratory, Mumbai, who got training in
    CDFD Institute, Hyderabad also, has authored about 30 papers
    on DNA, besides a well known book `Forensic Biology’. He has
    testified that they conducted the DNA test as per the
    guidelines issued by the Director of Forensic Science, Ministry
    of Home Affairs, New Delhi. Their office received the sealed
    muddemal from Kadim, Jalna Police Station sent vide letter
    dated 11.03.2012 as also the blood sample of the appellant
    sent vide letter dated 13.03.2012 (Exbt. P-52). The blood
    sample of the victim was received on 12.03.2012 along with
    samples of oral swabs and other articles. P.W.11 analysed the
    oral swabs and other articles of the victim, nasal swabs,
    superficial vaginal swab, deep vaginal smear on slide,
    superficial vaginal smear on slide, anus swab, skin scraping of
    blood on thigh and abdomen, nails as also other blood
    samples. P.W.11 has further deposed that,
    “I have extracted DNA from blood sample of Accused
    Ravi Ghumare, Superficial vaginal swab on Exhibit
    No.3, deep vaginal swab Exhibit No.4, Deep vaginal
    swab on slide Exhibit No.5 superficial vaginal swab on
    slide Exhibit No.6, anal swab Exhibit No.7, skin
    scrapping of blood on thigh and abdomen Exhibit
    No.8, blood & semen detected on Exhibit No.3 Jeans
    pant. This DNA was amplified by using Y-chromosome
    specific marker, Y-chromosome short tandem repeat
    26
    polymorphism [YSTR] and by using Polymerase
    Change Reaction [for short PCR] amplification
    technique. DNA profile was generated. I analyzed all
    these DNA profiles. My interpretation is male
    haplotypes of semen detected on Exhibit No.3
    Superficial vaginal swab Exhibit No.4 deep vaginal
    sway Exhibit No.3 Superfinal vaginal swab Exhibit
    No.4 deep vaginal sway Exhibit No.5 deep vaginal
    smear on slide, Exhibit No.6 superficial vaginal smear
    on slide, Exhibit No.7 anal swab, Exhibit No.8 skin
    scrapings of blood on thigh and abdomen and blood
    and semen detected on Exhibit No.3, jeans pant of F.S
    X. ML Case No.DNA 951/12 matched with the male
    haplotypes of blood sample of Exhibit No.1, Ravi
    Ashok Ghumare of F.S.L. ML Case No.DNA-209/12.
    My opinion is DNA profile of semen detected on
    Exhibit No.3 superficial vaginal swab, Exhibit 4 deep
    vaginal swab, Exhibit No.5 deep vaginal smear on slid
    Exhibit No.6 superficial vaginal smear on slide, Exhibit
    No.7 anal swab, Exhibit No.8, skin scrapings of blood
    on thigh and abdomen, blood and semen detected on
    Exhibit No.3 jeans pant of F.S.L ML Case No.DNA951/112 and blood sample of Exhibit No.1 Ravi Ashok
    Ghumare of F.S.LML Case No.DNA-209/12 is from the
    same paternal progeny.
    Accordingly, I prepared examination report filed with
    list Exhibit No.71 bear my signature, Contents are
    correct. It is at Exhibit No.75. Analysis of all above
    DNA profiles is shorn in table in the same report. Blue
    jeans pant and shirt of Accused Exhibit No.3 & 4 were
    referred by biological section of our office. I extracted
    DNA from blood and semen detected Exhibit No.3, full
    jeans pant, blood detected on Exhibit No.4 full bush
    shirt, and sample of Ravi Ghumare. Then this DNA
    was amplified by using 15 STR Loci using PCR
    amplification technique. My interpretation is DNA
    profile of blood and semen detected on Exhibit No.3
    full jeans pant, blood detected on Exhibit No.4 full
    bush shirt [torn] of F.S.l. ML. Case No.DNA-951/12 and
    blood sample of Ravi Ashok Ghumare is identical and
    from one and same source of male origin. DNA
    27
    profiles match with the maternal and paternal alleles
    in the source of blood.”
  49. Shrikant Lade (P.W.11) accordingly prepared the DNA
    report which is duly attested by the Assistant Chemical
    Analyser also. On seeing the contents of his report, P.W.11 has
    pertinently deposed that “I can opine on going through the
    reports Exbts. 75-76 that there were sexual intercourse and
    unnatural intercourse on the victim by the accused Ravi.”

[emphasis applied]

.

The unshakable scientific evidence which nails the
appellant from all sides, is sought to be impeached on the
premise that the method of DNA analysis “Y-STR” followed in
the instant case is unreliable. It is suggested that the said
method does not accurately identify the accused as the
perpetrator; and unlike other methods say autosomal-STR
analysis, it cannot distinguish between male members in the
same lineage.

We are, however, not swayed by the submission. The
globally acknowledged medical literature coupled with the
statement of P.W.11 – Assistant Director, Forensic Science
Laboratory leaves nothing mootable that in cases of sexual
assualt, DNA of the victim and the perpetrator are often
28
mixed. Traditional DNA analysis techniques like “autosomalSTR” are not possible in such cases. Y-STR method provides a
unique way of isolating only the male DNA by comparing the YChromosome which is found only in males. It is no longer a
matter of scientific debate that Y-STR screening is manifestly
useful for corroboration in sexual assault cases and it can be
well used as excalpatory evidence and is extensively relied
upon in various jurisdictions throughout the world.1&2
. Science
and Researches have emphatically established that chances
of degradation of the `Loci’ in samples are lesser by this
method and it can be more effective than other traditional
methods of DNA analysis. Although Y-STR does not distinguish
between the males of same lineage, it can, nevertheless, may
be used as a strong circumstantial evidence to support the
prosecution case. Y-STR techniques of DNA analysis are both
regularly used in various jurisdictions for identification of
offender in cases of sexual assault and also as a method to
identify suspects in unsolved cases. Considering the perfect
match of the samples and there being nothing to discredit the
1“Y-STR analysis for detection and objective confirmation of child sexual abuse”, authored
by Frederick C. Delfin – Bernadette J. Madrid – Merle P. Tan – Maria Corazon A. De
Ungria.
2“Forensic DNA Evidence: Science and the Law”, authored by Justice Ming W. Chin,
Michael Chamberlain, A,y Roja, Lance Gima
29
DNA analysis process, the probative value of the forensic
report as well as the statement of P.W.11 are very high. Still
further, it is not the case of the appellant that crime was
committed by some other close relative of him. Importantly,
no other person was found present in the house except the
appellant.

There is thus overwhelming eye-witness account,
circumstantial evidence, medical evidence and DNA analysis
on record which conclusively proves that it is the appellant
and he alone, who is guilty of committing the horrendous
crime in this case. We, therefore, unhesitatingly uphold the
conviction of the appellant.
Motive

Though the High Court has observed that satisfaction of lust’ andremoval of trace’ was the appellant’s motive but
motive is not an explicit requirement under the Indian Penal
Code, though `motive’ may be helpful in proving the case of
the prosecution in a case of circumstantial evidence. This
Court has held in a catena of decisions that lack of motive
would not be fatal to the case of prosecution as sometimes
human beings act irrationally and at the spur of the moment.
The case in hand is not entirely based on circumstantial
30
evidence as there are reliable eye-witness depositions who
have seen the appellant committing the crime, may be in part.
Such an unshakable evidence with dense support of DNA test
does not require the definite determination of the motive of
the appellant behind the gruesome crime.
Sentencing:

On the question of sentence, Learned Counsel for the
appellant vehemently urged that the Courts below have been
largely influenced by the nature’ andbrutality’ of the crime
while awarding the extreme sentence of death penalty. She
referred to a list of as many as 35 decisions rendered by this
Court in the cases of rape and murder of a child-victim in
which the death sentences were commuted to life
imprisonment. It was urged that brutality of the crime alone is
not sufficient to impose the sentence of death; it is imperative
on the State to establish that the convict is beyond reform and
to this end it is relevant to see whether this is the first
conviction or there has been previous crimes. The socioeconomic conditions of the convict and the state of mind must
be assessed by the Court before awarding such a penalty; the
death penalty must not be awarded in a case of circumstantial
evidence as any chink in the culpability calculus would
31
interdict the extreme penalty. Learned Counsel heavily relied
upon (i) Kalu Khan v. State of Rajasthan (2015) 16 SCC
492 in which a three-Judge Bench of this Court commuted the
death sentence in murder, abduction and rape, holding that
the life imprisonment would serve the object of reformation,
retribution and prevention and that giving and taking life is
divine, which cannot be done by Courts unless alternatives are
foreclosed. Another three-Judge Bench decision in Sunil v.
State of Madhya Pradesh (2017) 4 SCC 393 where a 25-
year old was held guilty of murder and rape of a 4-year old
child, but not sent to gallows on the parameters that he could
be reformed and rehabilitated, has been pressed into aid.
She, in specific, cited several three-Judge Bench judgments
where the young age of the accused was taken as a mitigating
circumstance and in the absence of previous criminal history,
the conduct of the accused while in custody and keeping in
view the socio-economic strata to which he belonged, the
possibility of reform was not ruled out and death penalty was
commuted.

Learned Counsel for the appellant placed great reliance
on a three-Judge Bench decision of this Court dated December
12, 2018 rendered in Rajindra Pralhadrao Wasnik v. State
32
of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 in
which the appellant was held guilty of rape and murder of a 3-
year old child and the death sentence was substituted by the
life imprisonment with a rider, “that the convict shall not be
released for the rest of his life”. This Court viewed in that case
that (a) the case was solely based on circumstantial evidence,
(b) probability of reformation and rehabilitation could not be
ruled out, (c) DNA sample of the accused was taken, but not
submitted in the Trial Court, and (d) the factum of pendency of
two similar cases against the accused reflecting on his bad
character was not admissible. Yet another three-Judge Bench
decision of this Court in Parsuram v. State of Madhya
Pradesh (Criminal Appeal Nos. 314-315 of 2013), decided on
19th February, 2019 where also death sentence awarded to a
22-year old who was found guilty of rape and murder of a
minor girl, was commuted on the principles quoted above, has
been relied upon.

The appellant’s Counsel urged that the High Court ought
not to have followed (i) Dhanjoy Chaterjee v. State of
West Bengal (1994) 2 SCC 220, which was later on doubted
by this Court in Shankar Kishanrao Khade v. State of
Maharashtra (2013) 5 SCC 546 and (ii) Shivaji v. State of
33
Maharashtra (2008) 3 SCC 269 which too was held to be per
curian in Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498. She very passionately
urged that neither the High Court nor the Trial Court have
given reasons for imposition of death penalty as both the
Courts have been influenced by the nature of the crime. The
mitigating circumstances of the appellant were inadequately
represented. The brutality of the crime is the pre-dominant
ground for imposition of death penalty though this Court has
cautioned contrarily in a catena of decisions. Both the Courts
have failed in recording a finding that the appellant was
beyond reform and unless it was so found, the case cannot
belong to the `rarest of the rare’ category.

Relying upon the facts like (i) lack of criminal
antecedents; (ii) no record of anti-social conduct prior to the
crime; (iii) appellant being 25-30 years of age; (iv) brutality of
crime cannot be a ground to award death sentence; and (v)
the appellant belongs to poor section of society, his learned
Counsel urged that this is not a fit case for imposition of death
penalty.

Learned State Counsel, contrarily, maintained that the
instant case satisfies the principle of `rarest of the rare cases’
34
and the appellant who committed the crime of rape and
murder of a barely 2-year old innocent toddler in the most
dastardly manner, does not deserve any liniency. According to
him, the appellant is a menace to the society and to deter
such like crimes against mankind, this Court should show no
misplaced sympathy.

The question which eventually falls for consideration is
whether the instant case satisfies the test of `rarest of the
rare cases’ and falls in such exceptional category where all
other alternatives except death sentence, are foreclosed and
whether this Court should explore the award of actual life
imprisonment as prescribed by this Court in Swamy
Shraddananda @ Murli Manohar Mishra v. State of
Karnataka (2008) 13 SCC 767 which has got seal of approval
of the Constitution Bench in Union of India v. V. Sriharan @
Murugan & Ors. (2016) 7 SCC 1.

The Constitution Bench of this Court in Bachan Singh v.
State of Punjab (1980) 2 SCC 684, while upholding the
constitutionality of death penalty under Section 302 IPC and
the sentencing procedure embodied in Section 354(3) of the
Code of Criminal Procedure, struck a balance between the
protagonists of the deterrent punishment on one hand and the
35
humanity crying against death penalty on the other and
elucidated the strict parameters to be adhered to by the
Courts for awarding death sentence. While emphasising that
for persons convicted of murder, life imprisonment is the rule’ and death setnence anexception’, this Court viewed that a
rule abiding concern for the dignity of the human life
postulates resistance in taking the life through laws
instrumentality and that the death sentence be not awarded
“save in the rarest of the rare cases” when the alternative
option is foreclosed.

In Machhi Singh v. State of Punjab (1983) 3 SCC 470,
this Court formulated the following two questions to be
considered as a test to determine the rarest of the rare cases
in which the death sentence can be inflicted:
“(a) Is there something uncommon, which renders
sentence for imprisonment for life inadequate calls
for death sentence?
(b) Rather the circumstances of the crime such that
there is no alternative, but to impose the death
sentence even after according maximum weightage
to the mitigating circumstances which speaks in
favour of the offender?”

Machhi Singh then proceeded to lay down the
circumstances in which death sentence may be imposed for
the crime of murder and held as follows:-
36
“32. The reasons why the community as a whole
does not endorse the humanistic approach reflected
in “death sentence-in-no-case” doctrine are not far
to seek. In the first place, the very humanistic
edifice is constructed on the foundation of
“reverence for life” principle. When a member of the
community violates this very principle by killing
another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it
has to be realized that every member of the
community is able to live with safety without his or
her own life being endangered because of the
protective arm of the community and on account of
the rule of law enforced by it. The very existence of
the rule of law and the fear of being brought to book
operates as a deterrent for those who have no
scruples in killing others if it suits their ends. Every
member of the community owes a debt to the
community for this protection. When ingratitude is
shown instead of gratitude by “killing” a member of
the community which protects the murderer himself
from being killed, or when the community feels that
for the sake of self- preservation the killer has to be
killed, the community may well withdraw the
protection by sanctioning the death penalty. But the
community will not do so in every case. It may do so
“in rarest of rare cases” when its collective
conscience 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. The community may entertain such a
sentiment when the crime is viewed from the
platform of the motive for, or the manner of
commission of the crime, or the anti-social or
abhorrent nature of the crime, such as for instance:
I. Manner of commission of murder

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. For instance,
(i) when the house of the victim is set aflame with
37
the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her
death.
(iii) when the body of the victim is cut into pieces or
his body is dismembered in a fiendish manner.
II. Motive for commission of murder

When the murder is committed for a motive
which evinces total depravity and meanness. For
instance when (a) a hired assassin commits murder
for the sake of money or reward (b) a cold-blooded
murder is committed with a deliberate design in
order to inherit property or to gain control over
property of a ward or a person under the control of
the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust, or (c) a
murder is committed in the course for betrayal of
the motherland.
III. Anti-social or socially abhorrent nature of
the crime

(a) 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. For instance when such a crime
is committed in order to terrorize such persons and
frighten them into fleeing from a place or in order to
deprive them of, or make them surrender, lands or
benefits conferred on them with a view to reverse
past injustices and in order to restore the social
balance.
(b) In cases of “bride burning” and what are known
as “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.
IV. Magnitude of crime

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,
38
are committed.
V. Personality of victim of murder

When the victim of murder is (a) an innocent
child who could not have or has not provided even
an excuse, much less a provocation, for murder (b)
a helpless woman or a person rendered helpless by
old age or infirmity (c) when the victim is a person
vis-a-vis whom the murderer is in a position of
domination or trust (d) when the victim is a public
figure generally loved and respected by the
community for the services rendered by him and the
murder is committed for political or similar reasons
other than personal reasons…..”

It thus spells out from Machhi Singh (supra) that
extreme penalty of death sentence need not be inflicted
except in gravest cases of extreme culpability and where the
victim of a murder is … (a) an innocent child who could not
have or has not provided even an excuse, much less a
provocation for murder…”, such abhorent nature of the crime
will certainly fall in the exceptional category of gravest cases
of extreme culpability.

This Court in Machhi Singh’s case confirmed the death
sentence awarded to Kashmir Singh – one of the appellants as
he was found guilty of causing death to a poor defenceless
child (Balbir Singh) aged 6 years. The appellant Kashmir Singh
was categorised as a person of depraved mind with grave
propensity to commit murder.
39

Bachan Singh and Machhi Singh, the Constitution
Bench and the Three-Judge Bench decisions respectively,
continue to serve as the foundation-stone of contemporary
sentencing jurisprudence though they have been expounded
or distinguished for the purpose of commuting death
sentence, mostly in the cases of (i) conviction based on
circumstantial evidence alone; (ii) failure of the prosecution to
discharge its onus re: reformation; (iii) a case of residual
doubts; and (iv) where the other peculiar mitigating’ circumstances outweighed theaggravating’ circumstances.

It is noteworthy that the object and purpose of
determining quantum of sentence has to be society centric’ without being influenced by ajudge’s’ own views, for society
is the biggest stake holder in the administration of criminal
justice system. A civic society has a fundamental’ and human’ right to live free from any kind of psycho fear, threat,
danger or insecurity at the hands of anti-social elements. The
society legitimately expects the Courts to apply doctrine of
proportionality and impose suitable and deterent punishment
that commensurate(s) with the gravity of offence.

Equally important is the stand-point of a victim’ which 40 includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. Thevictim’-
the de facto sufferer of a crime had no say in the adjudicatory
process and was made to sit outside the court as a mute
spectator. The ethos of criminal justice dispensation to
prevent and punish crime’ would surreptitiously turn its back on thevictim’ of such crime whose cries went unheard for
centuries in the long corridors of the conventional apparatus.
A few limited rights, including to participate in the trial have
now been bestowed on a `victim’ in India by the Act No. 5 of
2009 whereby some pragmatic changes in Cr.P.C. have been
made.

The Sentencing Policy, therefore, needs to strike a
balance between the two sides and count upon the twin test of
(i) deterrent effect, or (ii) complete reformation for integration
of the offender in civil society. Where the Court is satisfied
that there is no possibility of reforming the offender, the
punishments before all things, must be befitting the nature of
crime and deterrent with an explicit aim to make an example
out of the evil-doer and a warning to those who are still
41
innocent. There is no gainsaying that the punishment is a
reflection of societal morals. The subsistence of capital
punishment proves that there are certain acts which the
society so essentially abhores that they justify the taking of
most crucial of the rights – the right to life.

If the case-law cited on behalf of the appellant where this
Court commuted death sentence into life imprisonment for the
`rest of the life’ or so is appreciated within these contours, it
won’t need an elaborate discussion that the peculiarity of the
facts and circumstances of each case prompted this Court to
invoke leniency and substitute the death sentence with a
lesser punishment. The three-Judge Bench decision in
Rajendra Pralhadrai Washnik (supra) is clearly distinguisahable
on this very premise as that was a case, not only based on
circumstantial evidence but where even the DNA sample of
the accused though taken was not submitted in the trial Court.
It was thus a case of “residuary doubts” as explained by this
Court in Ashok Debbarma v. State of Tripura (2014) 4 SCC

The same analogy takes away the persuvasive force in
Parsuram (supra), for that too was a case where the guilt was
established only on the basis of circumstantial evidence.
42

Contrary to it, a Three-Judge Bench of this Court in
Vsanta Sampat Dupare v. State of Maharashtra (2017) 6
SCC 631, which is very close on facts to this case, found the
convict guilty of raping and battering to death a little girl of 4
years after luring her by giving chocolates. The prosecution
established its case by relying upon the `last seen theory’ as
the appellant was seen taking away the victim on a bicycle on
the fateful day. The eye-witness account, the disclosure
statement made by the accused coupled with the other
circumstantial evidence nailed him. The death setence was
confirmed by this Court on 26th November, 2014. He,
thereafter filed a Review Petition after about three years,
claiming that post-confirmation of his death sentence, he had
improved his academic qualification, completed the Gandhi
Vichar Pariksha and had also participated in the Drawing
Competition organised sometime in January, 2016. It was also
asserted that his jail record was without any blemish and
there was a possibility of the accused being reformed and
rehabilitated. This Court dismissed the Review Petition by way
of a self-speaking judgment, holding that the aggravating
circumstances, namely, the extreme depravity and the
barbaric manner in which the crime was committed and the
43
fact that the victim was a helpless child of four years clearly
outweigh the mitigating circumstances now brought on record.

In Khushwinder Singh v. State of Punjab, (2019) 4
SCC 415, this Court affirmed the death sentence of an accused
who had killed six innocent persons, out of which two were
minors, by kidnapping three persons, drugging them with
sleeping tablets, and then pushing them into a canal.
Thereafter, three other members of the same family were also
done away with. This Court upheld the award of capital
punishment observing as follows:-
“14. Now, so far as the capital punishment imposed
by the learned Sessions Court and confirmed by the
High Court is concerned, at the outset, it is required
to be noted that, as such, the learned counsel
appearing on behalf of the accused is not in a
position to point out any mitigating circumstance
which warrants commutation of death sentence to
the life imprisonment. In the present case, the
accused has killed six innocent persons, out of which
two were minors — below 10 years of age. Almost,
all the family members of PW 5 were done to death
in a diabolical and dastardly manner. Fortunately, or
unfortunately, only one person of the family of PW 5
could survive. In the present case, the accused has
killed six innocent persons in a pre-planned manner.
The convict meticulously planned the time. He first
kidnapped three persons by way of deception and
took them to the canal and after drugging them with
sleeping tablets, pushed them in the canal at
midnight to ensure that the crime is not detected.
That, thereafter he killed another three persons in
the second stage/instalment. Therefore, considering
44
the law laid down by this Court in Mukesh v. State
(NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri)
673] , the case would fall in the category of the
“rarest of rare case” warranting death
sentence/capital punishment. The aggravating
circumstances are in favour of the prosecution and
against the accused.
Therefore, striking a balance between the
aggravating and mitigating circumstances, we are of
the opinion that the aggravating circumstance would
tilt the balance in favour of capital punishment. In
the facts and circumstances of the case, we are of
the opinion that there is no alternative punishment
suitable, except the death sentence. The crime is
committed with extremist brutality and the
collective conscience of the society would be
shocked. Therefore, we are of the opinion that the
capital punishment/death sentence imposed by the
learned Sessions Court and confirmed by the High
Court does not warrant any interference by this
Court. Therefore, we confirm the death sentence of
the accused imposed by the learned Sessions Court
and confirmed by the High Court while convicting
the appellant for the offence punishable under
Section 302 IPC.”

In a recent Three-Judge Bench decision of this Court in
Manoharan v. State by Inspector of Police, Variety Hall
Police Station, Coimbatore, (2019) SCC Online 951, the
appellant’s capital punishment was confirmed by the High
Court in a case in which he along with his co-accused was held
guilty of kidnapping a 10-year old girl and her 7-year old
brother. After committing gang rape of the minor girl, both the
victims were done away with by throwing them into a canal
45
which caused their death by drowning. This Court (by
majority) upheld the death sentence, concluding as follows:-
“41. In the circumstances, we have no doubt that the
trial court and High Court have correctly applied and
balanced aggravating circumstances with mitigating
circumstances to find that the crime committed was
cold blooded and involves the rape of a minor girl
and murder of two children in the most heinous
fashion possible. No remorse has been shown by the
Appellant at all and given the nature of the crime as
stated in paragraph 84 of the High Court’s judgment
it is unlikely that the Appellant, if set free, would not
be capable of committing such a crime yet again.
The fact that the Appellant made a confessional
statement would not, on the facts of this case, mean
that he showed remorse for committing such a
heinous crime. He did not stand by this confessional
statement, but falsely retracted only those parts of
the statement which implicated him of both the rape
of the young girl and the murder of both her and her
little brother. Consequently, we confirm the death
sentence and dismiss the appeals.”

It is equally apt at this stage to refer the recent
amendments carried out by Parliament in the Protection of
Children from Sexual Offences Act, 2012 by way of The
Protection of Children from Sexual Offences (Amendment) Act,
2019 as notified on 6th August, 2019. The unamended Act
defines “Aggravated Penetrative Sexual Assault” in Section 5,
which included, “whoever commits aggravated penetrative
sexual assault on a child below the age of 12 years.”
Originally, the punishment for an aggravated sexual assault
46
was rigorous imprisonment for a term not less than 10-years
but which may extend for imprisonment for life with fine.

The recent amendment in Section 6 of 2012 Act has
substituted the punishment as follows:-
“Post the Amendment, Section 6 has been
substituted as follows:-
“6. (1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment
for life, which shall mean imprisonment for the
remainder of natural life of that person, and shall
also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be
just and reasonable and paid to the victim to meet
the medical expenses and rehabilitation of such
victim.”
[Emphasis applied]

The minimum sentence for an aggravated penetrative
sexual assault has been thus increased from 10 years to 20
years and imprisonment for life has now been expressly stated
to be imprisonment for natural life of the person. Significantly,
`death sentence’ has also been introduced as a penalty for the
offence of aggravated penetrative sexualt assault on a child
below 12 years.

The Legislature has impliedly distanced itself from the
propounders of “No-Death Setence” in “No Circumstances”
47
theory and has re-stated the will of the people that in the
cases of brutal rape of minor children below the age of 12
years without murder of the victim, `death penalty’ can also
be imposed. In the Statement of Objects and Reasons of
amendment, Parliament has shown its concern of the fact that
“in recent past incidents of child sexual abuse cases
administering the inhuman mindset of the accused, who have
been barbaric in their approach to young victim, is rising in the
country.” If the Parliament, armed with adequate facts and
figures, has decided to introduce capital punishment for the
offence of sexual abuse of a child, the Court hitherto will bear
in mind the latest Legislative Policy even though it has no
applicability in a case where the offence was committed prior
thereto. The judicial precedents rendered before the recent
amendment came into force, therefore, ought to be viewed
with a purposive approach so that the legislative and judicial
approaches are well harmonised.

In the light of above discussion, we are of the considered
opinion that sentencing in this case has to be judged keeping
in view the parameters originating from Bachan Singh and
Machhi Singh cases and which have since been
strengthened, explained, distinguished or followed in a catena
48
of subsequent decisions, some of which have been cited
above. Having said that, it may be seen that the victim was
barely a two-year old baby whom the appellant kidnapped and
apparently kept on assaulting over 4-5 hours till she breathed
her last. The appellant who had no control over his carnal
desires surpassed all natural, social and legal limits just to
satiate his sexual hunger. He ruthlessly finished a life which
was yet to bloom. The appellant instead of showing fatherly
love, affection and protection to the child against the evils of
the society, rather made her the victim of lust. It’s a case
where trust has been betrayed and social values are impaired.
The unnatural sex with a two-year old toddler exhibits a dirty
and perverted mind, showcasing a horrifying tale of brutality.
The appellant meticulously executed his nefarious design by
locking one door of his house from the outside and bolting the
other one from the inside so as to deceive people into
believing that nobody was inside. The appellant was thus in
his full senses while he indulged in this senseless act.
Appellant has not shown any remorse or repentance for the
gory crime, rather he opted to remain silent in his 313 Cr.P.C.
statement. His deliberate, well-designed silence with a
standard defence of `false’ accusation reveals his lack of
49
kindness or compassion and leads to believe that he can never
be reformed. That being so, this Court cannot write off the
capital punishment so long as it is inscribed in the statute
book.

All that is needed to be followed by us is what O’
Conner J. very aptly observed in California v. Ramos, 463 U.S.
992 that the “qualitative difference of death from all other
punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination” and in order
to ensure that the death penalty is not meted out arbitrarily or
capriciously, the Court’s principal concern has to be with the
procedure by which the death sentence is imposed than with
the substantive factors laid before it.

For the reasons aforestated, we dismiss the appeals and
affirm the death sentence.

………………………………..J.
(ROHINTON FALI NARIMAN)
…………………………… J.
(SURYA KANT)
NEW DELHI
DATED : 03.10.2019
50
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1488-1489 OF 2018
Ravi S/o Ashok Ghumare …Appellant
Versus
The State of Maharashtra …Respondent
J U D G M E N T
R. Subhash Reddy, J.

  1. I have gone through the opinion of my learned Brother,
    Surya Kant, J. I am in agreement with the view
    expressed in the said judgment, to the extent of
    confirming the conviction recorded against the
    appellant, for the offence under Sections 363, 376,
    377 and 302 of the Indian Penal Code, 1860 (for short
    ‘IPC’). However, as I am of the view that, this is not
    a fit case where the appellant is to be awarded
    capital punishment, i.e, death penalty, as such, I
    wish to share my view separately, in this judgment.
  2. The appellant was tried for committing the rape and
    murder on the minor girl child “Zoyabano” and he was
    51
    charged for offence punishable under Sections 363,
    376, 377 and 302 IPC. After the trial, learned
    Additional Sessions Judge at Jalna, by judgment dated
    16.09.2015, has held that appellant is guilty for the
    charges framed against him.
  3. By order dated 18.09.2015, the trial court, by
    recording a finding that crime committed by the
    appellant is heinous, brutal and inhuman, convicted
    and sentenced the appellant to death for the offence
    punishable under Section 302 IPC and ordered that he
    shall be hanged by neck till he is dead, subject to
    confirmation by the High Court as per Section 366 of
    Code of Criminal Procedure and also imposed a fine of
    Rs.500/- (Rupees Five Hundred Only). Similarly,
    learned Additional Sessions Judge has convicted the
    appellant for offence punishable under Section 376 of
    IPC and ordered sentence to suffer life imprisonment
    and a fine of Rs. 500/-(Rupees Five Hundred Only) and
    a sentence of rigorous imprisonment for 10 years for
    the offence punishable under Section 377 IPC with a
    fine of Rs.500/-(Rupees Five Hundred Only) and a
    sentence of R.I. for one year for the offence
    punishable under Section 363 with a fine of Rs.500/-
    (Rupees Five Hundred Only). Further, it was ordered
    52
    that all the sentences of imprisonment shall run
    concurrently.
  4. The reference which was made to the High Court under
    Section 366 was numbered as Confirmation Case No.1 of
    2015 and the appeal preferred by the appellant was
    numbered as criminal appeal No. 783 of 2015. The High
    Court by the Common Judgment and Order dated
    20.01.2016, while dismissing the criminal appeal
    preferred by the appellant, has confirmed the death
    sentence imposed under Section 302 IPC. Hence, these
    appeals.
  5. I am in agreement with the view expressed by my
    learned Brother, to the extent of upholding
    conviction, as such, there is no need to appreciate
    the evidence on-record in detail. As such, I confine
    consideration of such evidence on-record to the extent
    to modify the sentence on the appellant.
  6. For the conviction recorded against the appellant for
    the offences alleged against him, by balancing the
    aggravated and mitigated circumstances, I am of the
    view that the death sentence imposed on the appellant
    requires modification to that of the life
    imprisonment, without any remission, for the following
    reasons.
    53
  7. For the offence under Section 302 of IPC the
    punishment prescribed for committing murder is death
    or imprisonment for life. At first instance, challenge
    to Section 302 of IPC was turned down by this Court in
    the case of Jagmohan Singh v. State of Uttar Pradesh3.
    Further, in Constitution Bench, this Court in the case
    of Bachan Singh v. State of Punjab4, ,concluded that
    Section 302, providing death penalty for offence of
    murder is constitutional. In the aforesaid judgment,
    this Court has indicated the standards and norms,
    restricting the area for imposition of death penalty.
    Further, for considering the imposition of sentence of
    death, aggravating and mitigating circumstances were
    also broadly indicated. In the aforesaid judgment,
    while considering the scope of Section 235(2) read
    with Section 354(3) of the Code of Criminal Procedure,
    this Court has held that, in fixing the degree of
    punishment or in making the choice of sentence for
    various offences, including one under Section 302,
    IPC, the Court should not confine its consideration
    “principally or merely” to the circumstances connected
    with the particular crime, but also due consideration
    to the circumstances of the criminal. However, it is
    3 1973(1) SCC 20
    4 1980(2) SCC 684
    54
    observed that, what is the relative weight to be given
    to the aggravating and mitigating factors, depends on
    facts and circumstances of each case. The aggravating
    and mitigating circumstances, as suggested by
    Dr.Chitale were mentioned in the Judgment. Paragraphs
    202 to 207 of the judgment reads as under:
    “202. Drawing upon the penal statutes of
    the States in U.S.A. framed after Furman
    v. Georgia [33 L Ed 2d 346 : 408 US 238
    (1972)] , in general, and clauses 2 (a),
    (b), (c) and (d) of the Indian Penal Code
    (Amendment) Bill passed in 1978 by the
    Rajya Sabha, in particular, Dr Chitale
    has suggested these “aggravating
    circumstances”:
    “Aggravating circumstances: A court may,
    however, in the following cases impose
    the penalty of death in its discretion:
    (a) if the murder has been committed
    after previous planning and involves
    extreme brutality; or
    (b) if the murder involves exceptional
    depravity; or
    (c) if the murder is of a member of any
    of the armed forces of the Union or of a
    member of any police force or of any
    public servant and was committed—
    (i) while such member or public servant
    was on duty; or
    (ii) in consequence of anything done
    or attempted to be done by such member
    or public servant in the lawful
    discharge of his duty as such member
    or public servant whether at the time
    of murder he was such member or public
    servant, as the case may be, or had
    ceased to be such member or public
    servant; or
    55
    (d) if the murder is of a person who
    had acted in the lawful discharge of
    his duty under Section 43 of the Code
    of Criminal Procedure, 1973, or who
    had rendered assistance to a
    Magistrate or a police officer
    demanding his aid or requiring his
    assistance under Section 37 and
    Section 129 of the said Code.”
  8. Stated broadly, there can be no
    objection to the acceptance of these
    indicators but as we have indicated
    already, we would prefer not to fetter
    judicial discretion by attempting to make
    an exhaustive enumeration one way or the
    other.
  9. In Rajendra Prasad [(1979) 3 SCC 646 :
    1979 SCC (Cri) 749] , the majority said:
    “It is constitutionally permissible to
    swing a criminal out of corporeal existence
    only if the security of State and Society,
    public order and the interests of the
    general public compel that course as
    provided in Article 19(2) to (6)”. Our
    objection is only to the word “only”. While
    it may be conceded that a murder which
    directly threatens, or has an extreme
    potentiality to harm or endanger the
    security of State and Society, public order
    and the interests of the general public,
    may provide “special reasons” to justify
    the imposition of the extreme penalty on
    the person convicted of such a heinous
    murder, it is not possible to agree that
    imposition of death penalty on murderers
    who do not fall within this narrow category
    is constitutionally impermissible. We have
    discussed and held above that the impugned
    provisions in Section 302 of the Penal
    Code, being reasonable and in the general
    public interest, do not offend Article 19,
    or its “ethos” nor do they in any manner
    violate Articles 21 and 14. All the reasons
    given by us for upholding the validity of
    56
    Section 302 of the Penal Code, fully apply
    to the case of Section 354(3), Code of
    Criminal Procedure, also. The same
    criticism applies to the view taken in
    Bishnu Deo Shaw v. State of W.B. [(1979) 3
    SCC 714 : 1979 SCC (Cri) 817] which follows
    the dictum in Rajendra Prasad [(1979) 3 SCC
    646 : 1979 SCC (Cri) 749] .
  10. In several countries which have
    retained death penalty, pre-planned murder
    for monetary gain, or by an assassin hired
    for monetary reward is, also, considered a
    capital offence of the first-degree which,
    in the absence of any ameliorating
    circumstances, is punishable with death.
    Such rigid categorisation would dangerously
    overlap the domain of legislative policy.
    It may necessitate, as it were, a
    redefinition of ‘murder’ or its further
    classification. Then, in some decisions,
    murder by fire-arm, or an automatic
    projectile or bomb, or like weapon, the use
    of which creates a high simultaneous risk
    of death or injury to more than one person,
    has also been treated as an aggravated type
    of offence. No exhaustive enumeration of
    aggravating circumstances is possible. But
    this much can be said that in order to
    qualify for inclusion in the category of
    “aggravating circumstances” which may form
    the basis of “special reasons” in Section
    354(3), circumstance found on the facts of
    a particular case, must evidence
    aggravation of an abnormal or special
    degree.
  11. Dr Chitale has suggested these
    mitigating factors:
    “Mitigating circumstances— In the exercise
    of its discretion in the above cases, the
    court shall take into account the following
    circumstances:
    (1) That the offence was committed under
    the influence of extreme mental or
    emotional disturbance.
    57
    (2) The age of the accused. If the accused
    is young or old, he shall not be sentenced
    to death.
    (3) The probability that the accused would
    not commit criminal acts of violence as
    would constitute a continuing threat to
    society.
    (4) The probability that the accused can
    be reformed and rehabilitated. The State
    shall by evidence prove that the accused
    does not satisfy the conditions (3) and (4)
    above.
    (5) That in the facts and circumstances of
    the case the accused believed that he was
    morally justified in committing the
    offence.
    (6) That the accused acted under the
    duress or domination of another person.
    (7) That the condition of the accused
    showed that he was mentally defective and
    that the said defect impaired his capacity
    to appreciate the criminality of his
    conduct.”
  12. We will do no more than to say that
    these are undoubtedly relevant
    circumstances and must be given great
    weight in the determination of sentence.
    Some of these factors like extreme youth
    can instead be of compelling importance. In
    several States of India, there are in force
    special enactments, according to which a
    “child”, that is, “a person who at the date
    of murder was less than 16 years of age”,
    cannot be tried, convicted and sentenced to
    death or imprisonment for life for murder,
    nor dealt with according to the same
    criminal procedure as an adult. The special
    Acts provide for a reformatory procedure
    for such juvenile offenders or children.”
  13. Further in the three Judge Bench Judgment of this
    Court, in the case of Machhi Singh and Ors. v. State
    58
    of Punjab5, this Court has considered tests to
    determine “rarest of rare” case, to impose death
    sentence under Section 302 IPC.
  14. In the aforesaid judgment, this Court has held that
    the following questions may be asked and answered, in
    order to apply the guidelines indicated in Bachan
    Singh case2, where the question of imposing the death
    sentence arises.
    (a) Is there something uncommon about the crime which
    renders sentence for imprisonment for life inadequate
    and calls for a death sentence?
    (b) Are the circumstances of the crime 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?
  15. In this judgment, it is held by this Court that the
    guidelines indicated in Bachan Singh case2, will have
    to be culled out and applied to the facts of each
    individual case, where the question of imposing death
    sentence arises. Paragraph 38 of the said judgment
    reads as under:
    “38. In this background the guidelines
    indicated in Bachan Singh case2 will have
    5 1983(3) SCC 470
    59
    to be culled out and applied to the facts
    of each individual case where the question
    of imposing of death sentence arises. The
    following prepositions emerge from Bachan
    Singh case2 :
    (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.
  16. In this judgment, on facts, by holding that it is a
    cold-blooded, calculated and gruesome multiple
    murders, as a reprisal in a family feud and 17
    helpless, defenceless, innocent men, women and
    children were gunned down while asleep on the same
    60
    night in quick succession in different neighbouring
    villages, confirmed the death sentence imposed on
    Machhi Singh and two others.
  17. In this case, learned counsel for the appellant has
    contended that the Trial Court as well as the High
    Court, fell in error in confining nature and brutality
    of crime alone, to award the sentence of death. It is
    submitted that nature of crime alone is not sufficient
    to impose the sentence of death, unless State proves
    by leading cogent evidence that the convict is beyond
    reform and rehabilitation. It is submitted that the
    socio-economic conditions of the convict and the
    circumstances under which crime is committed are
    equally relevant for the purpose of considering
    whether a death penalty is to be imposed or not. It is
    submitted that as the case on hand, rests on
    circumstantial evidence, same is also the ground not
    to impose capital punishment, of death.
  18. In support of his argument, learned counsel for the
    appellant has relied on the three Judge Bench Judgment
    of this Court, in the case of Kalu Khan v. State of
    Rajasthan6, wherein the accused was charged for
    offence of abduction, rape and murder of 4 year old
    6(2015) 16 SCC 492
    61
    girl child, death sentence was commuted to life
    imprisonment. Paragraphs 32 and 33 of the said
    judgment reads as under:
    “32. In our considered view, in the
    impugned judgment and order, the High Court
    has rightly noticed that life and death are
    acts of the divine and the divine’s
    authority has been delegated to the human
    courts of law to be only exercised in
    exceptional circumstances with utmost
    caution. Further, that the first and
    foremost effort of the Court should be to
    continue the life till its natural end and
    the delegated divine authority should be
    exercised only after arriving at a
    conclusion that no other punishment but for
    death will serve the ends of justice. We
    have critically appreciated the entire
    evidence in its minutest detail and are of
    the considered opinion that the present
    case does not warrant award of the extreme
    sentence of death to the appellant-accused
    and the sentence of life imprisonment would
    be adequate and meet the ends of justice.
    We are of the opinion that the four main
    objectives which the State intends to
    achieve, namely, deterrence, prevention,
    retribution and reformation can be achieved
    by sentencing the appellant-accused for
    life.
  19. Before parting, we would reiterate the
    sentiment reflected in the following lines
    by this Court in Shailesh Jasvantbhai case
    [Shailesh Jasvantbhai v. State of Gujarat,
    (2006) 2 SCC 359 : (2006) 1 SCC (Cri)
    499] : (SCC pp. 361-62, para 7)
    “7. … Protection of society and stamping
    out criminal proclivity must be the object
    of law which must be achieved by imposing
    appropriate sentence. Therefore, law as a
    cornerstone of the edifice of ‘order’
    should meet the challenges confronting the
    62
    society. Friedman in his Law in a Changing
    Society stated that: ‘State of criminal law
    continues to be — as it should be — a
    decisive reflection of social consciousness
    of society.’ Therefore, in operating the
    sentencing system, law should adopt the
    corrective machinery or deterrence based on
    factual matrix. By deft modulation,
    sentencing process be stern where it should
    be, and tempered with mercy where it
    warrants to be.”
  20. In the case of Lehna v. State of Haryana7, it was
    held that the special reasons for awarding the death
    sentence must be such that compel the court to
    conclude that it is not possible to reform and
    rehabilitate the offender. Paragraph 14 of the said
    judgment reads as under:
    “……Death sentence is ordinarily ruled
    out and can only be imposed for “special
    reasons”, as provided in Section 354(3).
    There is another provision in the Code
    which also uses the significant expression
    “special reason”. It is Section 361.
    Section 360 of the 1973 Code re-enacts, in
    substance, Section 562 of the Criminal
    Procedure Code, 1898, (in short “the old
    Code”). Section 361 which is a new
    provision in the Code makes it mandatory
    for the court to record “special reasons”
    for not applying the provisions of Section
  21. Section 361 thus casts a duty upon the
    court to apply the provisions of Section
    360 wherever itis possible to do so and to
    state “special reasons” if it does not do
    so. In the context of Section 360, the
    “special reasons” contemplated by Section
    361 must be such as to compel the court to
    hold that it is impossible to reform and
    7(2002) 3 SCC 76
    63
    rehabilitate the offender after examining
    the matter with due regard to the age,
    character and antecedents of the offender
    and the circumstances in which the offence
    was committed. This is some indication by
    the legislature that reformation and
    rehabilitation of offenders and not mere
    deterrence, are now among the foremost
    objects of the administration of criminal
    justice in our country. Section 361 and
    Section 354(3) have both entered the
    statute-book at the same time and they are
    part of the emerging picture of acceptance
    by the legislature of the new trends in
    criminology. It would not, therefore, be
    wrong to assume that the personality of the
    offender as revealed by his age, character,
    antecedents and other circumstances and the
    tractability of the offender to reform must
    necessarily play the most prominent role in
    determining the sentence to be awarded.
    Special reasons must have some relation to
    these factors.”
  22. Learned counsel for the appellant has also relied on
    the three Judge Bench Judgment of this Court, in the
    case of Sunil v. State of Madhya Pradesh8, wherein the
    accused, aged about 25 years at the relevant time, was
    charged for offence of rape and murder of 4 year old
    child, death sentence was commuted to that of life
    imprisonment. In the said judgment, this Court has
    held that one of the compelling/mitigating
    circumstances that must be acknowledged in favour of
    the appellant is his young age at which he had
    committed the crime and further that the accused can
    8(2017) 4 SCC 393
    64
    be reformed and rehabilitated, are the other
    circumstances which could not but have been ignored by
    courts below.
  23. Reliance is also placed by learned counsel for the
    appellant, on the three Judge Bench Judgment of this
    Court, in the case of Rajendra Pralhaderao Wasnik v.
    State of Maharashtra9, where accused was found guilty
    of rape and murder of 3 year old child, death sentence
    was substituted by life imprisonment, with a rider
    that the convict shall not be released from custody
    for the rest of his normal life.
  24. The aforesaid three judgments relied on by the
    learned counsel for the appellant, supports the case
    of the appellant, when we consider to balance the
    aggravating and mitigating circumstances of this case
    on hand.
  25. From the deposition of PW-9, it is clear that he is
    a fruit vendor, residing in Nutan Vasahat area, Jalna
    and the appellant also resides in the same lane.
    Further, it is also clear from his deposition that
    accused was under influence of liquor, on the day of
    occurrence of crime. As such, it is clear that on the
    day of occurrence, he was under influence of liquor
    9Review Petition (Criminal) Nos. 306-307 of 2013
    65
    and he is aged about 25 years and he had no previous
    history of any crimes and in absence of any evidence
    from the side of the prosecution to show that he
    cannot be reformed and rehabilitated to bring in to
    the main stream of the society, the judgments relied
    on by learned counsel for the appellant, fully support
    the case of the appellant, to modify the sentence.
  26. In the case of Machhi Singh and Ors. v. State of
    Punjab3, this Court has confirmed that the death
    sentence to Machhi Singh and two others, mainly by
    recording a finding that it was a cold-blooded,
    calculated and gruesome murders, as a reprisal in a
    family feud, in which, 17 helpless, defenceless,
    innocent men, women and children were gunned down, as
    such, same can be termed as “rarest of rare” case. In
    the case on hand, it cannot be said to be a preplanned and pre-meditated one. To record a finding
    that a particular crime committed is a pre-planned and
    pre-meditated one, something more is required of
    planning to commit a murder on a day earlier to the
    date of occurrence. In the case on hand, where it is
    clear from the evidence on-record that the appellant
    was under influence of liquor and committed the
    offence, cannot be termed as a pre-planned one, to
    66
    count the same as an aggravating circumstance, for
    balancing aggravating and mitigating circumstances.
  27. In the case of Sandesh v. State of Maharashtra10,
    this Court, once again, acknowledged the principle
    that it is for the prosecution to lead evidence, to
    show that there is no possibility that the convict
    cannot be reformed. Similarly, in Mohinder Singh v.
    State of Punjab11, it was held in Paragraph 23 of the
    judgment as under:
    “……As discussed above, life
    imprisonment can be said to be completely
    futile, only when the sentencing aim of
    reformation can be said to be unachievable.
    Therefore, for satisfying the second aspect
    to the “rarest of rare” doctrine, the court
    will have to provide clear evidence as to
    why the convict is not fit for any kind of
    reformatory and rehabilitation scheme.”
  28. In the case of Sushil Sharma v. State (NCT of
    Delhi)12, this Court acknowledged that among various
    factors, one of the factors required to be taken into
    consideration, for awarding or not awarding capital
    punishment, is the possibility of reformation and
    rehabilitation of the convict. This acknowledgment was
    made in paragraph 103 of the judgment, which reads as
    under:
    10(2013) 2 SCC 479
    11(2013) 3 SCC 294
    12(2014) 4 SCC 317
    67
    “103. In the nature of things, there can be
    no hard-and-fast rules which the court can
    follow while considering whether an accused
    should be awarded death sentence or not.
    The core of a criminal case is its facts
    and, the facts differ from case to case.
    Therefore, the various factors like the age
    of the criminal, his social status, his
    background, whether he is a confirmed
    criminal or not, whether he had any
    antecedents, whether there is any
    possibility of his reformation and
    rehabilitation or whether it is a case
    where the reformation is impossible and the
    accused is likely to revert to such crimes
    in future and become a threat to the
    society are factors which the criminal
    court will have to examine independently in
    each case. Decision whether to impose death
    penalty or not must be taken in the light
    of guiding principles laid down in several
    authoritative pronouncements of this Court
    in the facts and attendant circumstances of
    each case.”
  29. In the case of Amit v. State of Maharashtra13, this
    Court adverted to the prior history of the accused and
    noted that there is no record of any previous heinous
    crime and also there is no evidence that he would be a
    danger to the society if the death penalty is not
    awarded to him. Paragraph 10 of the said judgment
    reads as under:
    “10. The next question is of the sentence.
    Considering that the appellant is a young
    man, at the time of the incident his age
    was about 20 years; he was a student; there
    is no record of any previous heinous crime
    and also there is no evidence that he will
    be a danger to the society, if the death
    13(2003) 8 SCC 93
    68
    penalty is not awarded. Though the offence
    committed by the appellant deserves severe
    condemnation and is a most heinous crime,
    but on cumulative facts and circumstances
    of the case, we do not think that the case
    falls in the category of rarest of the rare
    cases…….”
  30. In the case of Surendra Pal Shivbalakpal v. State of
    Gujarat14, this Court has held that the involvement in
    any previous criminal case by the accused, was
    considered to be a factor, to be taken into
    consideration, for the purpose of awarding death
    sentence. Paragraph 13 of the said judgment reads as
    under:
    “13. The next question that arises for
    consideration is whether this is a “rarest
    of rare case”; we do not think that this is
    a “rarest of rare case” in which death
    penalty should be imposed on the appellant.
    The appellant was aged 36 years at the time
    of the occurrence and there is no evidence
    that the appellant had been involved in any
    other criminal case previously and the
    appellant was a migrant labourer from U.P.
    and was living in impecunious circumstances
    and it cannot be said that he would be a
    menace to society in future and no
    materials are placed before us to draw such
    a conclusion. We do not think that the
    death penalty was warranted in this case.
    We confirm conviction of the appellant on
    all the counts, but the sentence of death
    penalty imposed on him for the offence
    under Section 302 IPC is commuted to life
    imprisonment.”
  31. Further, this case on hand, rests solely on the
    142005(3) SCC 127
    69
    circumstantial evidence.
  32. In the case of Bishnu Prasad Sinha v. State of
    Assam15, this Court has held that ordinarily, death
    penalty would not be awarded, if the guilt of the
    accused is proved by circumstantial evidence, coupled
    with some other factors that are advantageous to the
    convict. Paragraph 55 of the said judgment reads as
    under:
    “55. The question which remains is as to
    what punishment should be awarded.
    Ordinarily, this Court, having regard to
    the nature of the offence, would not have
    differed with the opinion of the learned
    Sessions Judge as also the High Court in
    this behalf, but it must be borne in mind
    that the appellants are convicted only on
    the basis of the circumstantial evidence.
    There are authorities for the proposition
    that if the evidence is proved by
    circumstantial evidence, ordinarily, death
    penalty would not be awarded. Moreover,
    Appellant 1 showed his remorse and
    repentance even in his statement under
    Section 313 of the Code of Criminal
    Procedure. He accepted his guilt.”
  33. Further, in the case of Aloke Nath Dutta v. State of
    West Bengal16, the principle that death penalty should
    ordinarily not to be awarded, in a case arising out of
    circumstantial evidence, was broadly accepted with the
    15 (2007) 11 SCC 467
    16(2007)12 SCC 230
    70
    rider that there should be some “special reason” for
    awarding death penalty. Paragraph 174 of the said
    judgment reads as under:
    “174. There are some precedents of this
    Court e.g. Sahdeo v. State of U.P.[(2004)
    10 SCC 682] and Sk. Ishaque v. State of
    Bihar[(1995) 3 SCC 392] which are
    authorities for the proposition that if the
    offence is proved by circumstantial
    evidence ordinarily death penalty should
    not be awarded. We think we should follow
    the said precedents instead and, thus, in
    place of awarding the death penalty, impose
    the sentence of rigorous imprisonment for
    life as against Aloke Nath. Furthermore we
    do not find any special reason for awarding
    death penalty which is imperative.”
  34. In the case of Swamy Shraddananda v. State of
    Karnataka17, this Court has held that the convictions
    based on seemingly conclusive circumstantial evidence,
    should not be presumed to be fool-proof. Paragraph 87
    of the said judgment reads as under:
    “87. It has been a fundamental point in
    numerous studies in the field of death
    penalty jurisprudence that cases where the
    sole basis of conviction is circumstantial
    evidence, have far greater chances of
    turning out to be wrongful convictions,
    later on, in comparison to ones which are
    based on fitter sources of proof.
    Convictions based on seemingly conclusive
    circumstantial evidence should not be
    presumed as foolproof incidences and the
    fact that the same are based on
    circumstantial evidence must be a definite
    factor at the sentencing stage
    deliberations, considering that capital
    17(2007) 12 SCC 288
    71
    punishment is unique in its total
    irrevocability. Any characteristic of
    trial, such as conviction solely resting on
    circumstantial evidence, which contributes
    to the uncertainty in the culpability
    calculus, must attract negative attention
    while deciding maximum penalty for murder.”
  35. From the above judgments referred, it is clear that
    in a case of conviction based on circumstantial
    evidence, ordinarily the extreme punishment of death
    penalty should not be imposed. In a given case, guilt
    of the accused is proved beyond reasonable doubt, by
    establishing chain of circumstances, resulting in
    conviction, such cases, by considering balancing
    aspects of aggravating and mitigating circumstances,
    in appropriate cases, death penalty can be imposed.
    But, at the same time ordinarily, if no special
    reasons exist, in a case of conviction based on
    circumstantial evidence, death penalty should not be
    imposed. In this case on hand, the conviction of the
    appellant is mainly based on circumstantial evidence.
    On this ground also, I am of the view that the death
    sentence, imposed on him, is to be modified.
  36. From the materials placed on record, it is clear
    that accused is a permanent resident of Indira Nagar,
    Jalna. The father of the deceased, PW-9, himself has
    stated that he is a fruit vendor in Nutan Vasahat
    72
    area, Jalna, and accused also resides in the same
    lane, nearby his residence. It is also clear from the
    evidence of PW-9, to the East and West side of the
    house of the appellant, a person having buffaloes used
    to reside at the relevant time. From such evidence onrecord, it is easy to assess the socio-economic
    condition of the appellant and it can certainly be
    said that he is a person below poverty line.
  37. In a judgment of this Court, in the case of Sunil
    Damodar Gaikwad v. State of Maharashtra18, while
    holding that court must not only look at the crime but
    also offender and to give due consideration to
    circumstances of offender, has further held that in
    imposing penalty, socio-economic condition can be
    considered as one of the mitigating factors, in
    addition to those indicated in Bachan Singh2 and
    Machhi Singh3. Para 20 of the said judgment reads as
    under:
    “20. When there are binding decisions,
    judicial comity expects and requires the
    same to be followed. Judicial comity is an
    integral part of judicial discipline and
    judicial discipline the cornerstone of
    judicial integrity. No doubt, in case there
    are newer dimensions not in conflict with
    the ratio of the larger Bench decisions or
    where there is anything to be added to and
    explained, it is always permissible to
    18(2014) 1 SCC 129
    73
    introduce the same. Poverty, socioeconomic, psychic compulsions, undeserved
    adversities in life are thus some of the
    mitigating factors to be considered, in
    addition to those indicated in Bachan Singh
    [Bachan Singh v. State of Punjab, (1980) 2
    SCC 684 : 1980 SCC (Cri) 580] and Machhi
    Singh [Machhi Singh v. State of Punjab,
    (1983) 3 SCC 470 : 1983 SCC (Cri) 681]
    cases. Thus, we are bound to analyse the
    facts in the light of the aggravating and
    mitigating factors indicated in the binding
    decisions which have influenced the
    commission of the crime, the criminal, and
    his circumstances, while considering the
    sentence.
  38. In view of the aforesaid judgments of this Court
    and evidence on record in this case, which establishes
    the socio-economic condition of the appellant, as a
    person below poverty line, can also be considered as
    one of the mitigating factors, while balancing the
    aggravating and mitigating factors.
  39. I am conscious of recent amendments carried out to
    the Protection of Children from Sexual Offences Act,
    2012 (for short ‘POCSO Act’), by way of Protection of
    Children from Sexual Offences Amendment Act, 2019. By
    virtue of the said amendments, taking note of
    increasing trend of crimes against the children,
    minimum sentence is increased for various offences and
    for offence under Section 6 of the Act i.e aggravated
    penetrative sexual assault, minimum imprisonment,
    which shall not be less than 20 years, which may
    74
    extend to natural life or penalty of death. Prior to
    the amendments made by recent amending Act of 2019,
    for offence under POCSO, death penalty was not
    provided. By virtue of the amendments made in
    appropriate cases, for offences falling under
    provisions of the POCSO Act alone, a penalty of death
    sentence can be imposed. In the case on hand, the
    offence was committed prior to coming into force, of
    the Act.
  40. Even then, we cannot forget the legislative intent
    which resulted in amendments to POCSO, while dealing
    with the offences against the children. At the same
    time, even for imposing the death sentence, for cases
    arising out of the provisions under POCSO Act, 2012,
    it is the duty of the courts to balance the
    aggravating and mitigating circumstances. To balance
    such aspects, the guidelines in Bachan Singh v. State
    of Punjab2 and further reiterated in the case of
    Machhi Singh and Ors. v. State of Punjab3 and in the
    case of Sushil Murmu v. State of Jharkhand19, will
    continue to apply. Further, repeatedly, it is said by
    this Court, in the various judgments that the
    aggravating and mitigating factors are to be
    19(2004) 2 SCC 338
    75
    considered with reference to the facts of each case
    and there cannot be any hard and fast rule for
    balancing such aspects.
  41. I am clear in my mind that in this case on hand, the
    mitigating circumstances of the appellant, dominate
    over the aggravating circumstances, to modify the
    death sentence to that of life imprisonment. Even as
    per the case of prosecution, the appellant was under
    influence of liquor at the time of committing the
    offence, and there is no evidence on record from the
    side of prosecution, to show that there is no
    possibility of reformation and rehabilitation of the
    appellant. Further, age of the appellant was 25 years
    at the relevant time and conviction is solely based on
    circumstantial evidence. Taking all such aspects into
    consideration, the death penalty imposed on the
    appellant is to be modified to that of life
    imprisonment, for the offence under Section 302 IPC.
  42. Long line of cases decided by this Court are
    cited by learned counsel for the appellant, in similar
    set of facts and circumstances, this Court has
    modified the death sentence to that of imprisonment
    for life, without any remission. Few recent decisions
    of this Court are:
    76
  43. In a three Judge Bench Judgments of this Court, in
    the case of Nand Kishore v. State of Madhya Pradesh20
    dated 18.01.2019 and in the case of Raju Jagdish
    Paswan v State of Maharashtra21 dated 17.01.2019, for
    which I am party, in similar circumstances, this Court
    has modified the death penalty to that of life
    imprisonment, without any remission.
  44. Further, in a recent three Judge Bench Judgment of
    this Court, in the case of Vijay Raikwar v. State of
    Madhya Pradesh22, where there was an offence involving
    rape and murder of a girl aged about 7½ years, while
    confirming the conviction of the offences under
    Section 376(2)(f) and Section 201 IPC and also under
    Sections 5(i), 5(m) and 5(r) read with Section 6 of
    the POCSO Act, this Court commuted the death sentence
    to life imprisonment.
  45. In the aforesaid judgments, in a similar set of
    facts, this Court has modified the sentence to life
    imprisonment. In this case also there is no previous
    crime record for the appellant. The above referred
    judgment, supports the case of the appellant.
  46. For the aforesaid reasons, these appeals are allowed
    20 Criminal Appeal No. 94 of 2019
    21Criminal Appeal No. 88-89/2019
    22(2019) 4 SCC 210
    77
    in part. While confirming the conviction recorded by
    the Trial Court, death sentence imposed on the
    appellant is modified to that of life imprisonment i.e
    to suffer for life till his natural death, without any
    remission/commutation.
    ……………….J
    [R.Subhash Reddy]
    New Delhi;
    October 03,2019
    78