1996 JTR(SC) 1394
1996 3 AICLR 515 ; 1996 AIR(SC) 2800 ; 1996 AIR(SCW) 3567 ; 1996 2 ALD(Cri)(SC) 703 ; 1996 3 CCR(SC) 141 ; 1996 CriLR 584 ; 1996 3 Crimes(SC) 241 ; 1997 CriR(SC) 323 ; 1996 CrLJ 4158 ; 1997 1 EastCrC(SC) 106 ; 1996 JLJ 694 ; 1996 8 JT 198 ; 1997 MLJ(Cri) 206 ; 1997 1 RCR(Cri) 359 ; 1996 6 Scale 337 ; 1996 6 SCC 250 ; 1996 SCC(Cri) 1298 ; 1996 SCR 507 ; 1996 6 Supreme 482
1996(6) Supreme 482
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Kamta Tiwari -Appellant
versus
State of M.P. -Respondent
Criminal Appeal No. 267 of 1996
Decided on 4-9-1996
Counsel for the Parties :
For the Appellant : Anil Kumar Gupta, Advocate (A.C).
For the Respondent : Uma Nath Singh, Advocate.
VERY IMPORTANT POINT
When an innocent hapless girl of 7 years was subjected to brutal rape and gruesome murder by a person who was in a position of her trust and the finale was the dumping of her dead body in a well, his culpability assumes the proportion of extreme depravity and it being the rarest of the rare cases deserves sentence of death.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.354(3)
INDIAN PENAL CODE : S.201, S.302, S.376, S.363
A) The accused was charged under Sections 363, 376, 302, and 201 of the Indian Penal Code. Section 363 defines kidnapping, which involves inducing or compelling a person to go from any place or taking or enticing a minor into any place with intent to detain wrongfully. Section 376 defines rape, covering sexual intercourse by a man with a woman without her consent or with her consent when obtained by putting her in fear or under misconception, along with aggravating circumstances involving minors. Section 302 defines murder and prescribes the penalty for causing death with the intention of causing death or such bodily injury as is likely to cause death. Section 201 defines causing disappearance of evidence of offence or giving false information to screen the offender. Section 354(3) of the Code of Criminal Procedure relates to the powers of the court during sentencing. The offences alleged here involve the kidnapping, rape, and murder of a minor, triggering the application of these stringent provisions.
B) The case hinges on the doctrine of circumstantial evidence, where the convergence of multiple consistent circumstances can establish guilt to the exclusion of reasonable doubt. The principles of sentencing under Section 302 require adherence to the guidelines laid down in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, balancing aggravating and mitigating factors. The rarest of rare case doctrine applies, restricting the death penalty to cases of extreme culpability where life imprisonment is inadequate.
Facts of the case:
A minor female, identified as the daughter of a local family, was visited by the appellant who resided in the same locality. She was sent on an errand to the appellants shop, where she was accompanied by the appellant. Subsequently, she was seen with the appellant heading toward a bus stand. Later that night, the appellant was found returning home drenched and with clothes pressed under his arm. Following a disclosure, the deceaseds body was recovered from a well, and a blood-stained frock was seized. The autopsy revealed extensive injuries, including fractures, lacerations, and signs of rape and strangulation. The appellants medical examination showed fresh injuries consistent with the commission of the offence. Blood evidence linked the appellant to the scene.
Findings of Court:
Both the trial and high courts meticulously evaluated the circumstantial evidence and concluded that the facts unerringly pointed to the guilt of the appellant. The injuries on the deceased were indicative of rape and murder, and the recovery of the body from the well corroborated the disclosure. The injuries on the appellant were found to be recent and consistent with the commission of the crime. The courts held that no other reasonable hypothesis existed except the guilt of the appellant.
Issues:
Whether the circumstantial evidence established in the case is sufficient to convict the appellant beyond reasonable doubt.
Whether the sentence of death is warranted under the rarest of rare doctrine, or if the sentence should be mitigated to life imprisonment.
Ratio Decidendi:
The convergence of multiple, fully established circumstantial evidence, including the motive of closeness to the family, the enticement of the minor, the recovery of the body, and the fresh injuries on the accused, left no room for doubt. The court applied the rarest of rare doctrine, finding the crime to be of extreme depravity, and concluded that the aggravating factors far outweighed any potential mitigation, thus justifying the death sentence.
Result:
The appeal was dismissed, and the conviction and death sentence were upheld.
A) The accused was charged under Sections 363, 376, 302, and 201 of the Indian Penal Code. Section 363 defines kidnapping, which involves inducing or compelling a person to go from any place or taking or enticing a minor into any place with intent to detain wrongfully. Section 376 defines rape, covering sexual intercourse by a man with a woman without her consent or with her consent when obtained by putting her in fear or under misconception, along with aggravating circumstances involving minors. Section 302 defines murder and prescribes the penalty for causing death with the intention of causing death or such bodily injury as is likely to cause death. Section 201 defines causing disappearance of evidence of offence or giving false information to screen the offender. Section 354(3) of the Code of Criminal Procedure relates to the powers of the court during sentencing. The offences alleged here involve the kidnapping, rape, and murder of a minor, triggering the application of these stringent provisions.
B) The case hinges on the doctrine of circumstantial evidence, where the convergence of multiple consistent circumstances can establish guilt to the exclusion of reasonable doubt. The principles of sentencing under Section 302 require adherence to the guidelines laid down in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, balancing aggravating and mitigating factors. The rarest of rare case doctrine applies, restricting the death penalty to cases of extreme culpability where life imprisonment is inadequate.
Facts of the case:
A minor female, identified as the daughter of a local family, was visited by the appellant who resided in the same locality. She was sent on an errand to the appellants shop, where she was accompanied by the appellant. Subsequently, she was seen with the appellant heading toward a bus stand. Later that night, the appellant was found returning home drenched and with clothes pressed under his arm. Following a disclosure, the deceaseds body was recovered from a well, and a blood-stained frock was seized. The autopsy revealed extensive injuries, including fractures, lacerations, and signs of rape and strangulation. The appellants medical examination showed fresh injuries consistent with the commission of the offence. Blood evidence linked the appellant to the scene.
Findings of Court:
Both the trial and high courts meticulously evaluated the circumstantial evidence and concluded that the facts unerringly pointed to the guilt of the appellant. The injuries on the deceased were indicative of rape and murder, and the recovery of the body from the well corroborated the disclosure. The injuries on the appellant were found to be recent and consistent with the commission of the crime. The courts held that no other reasonable hypothesis existed except the guilt of the appellant.
Issues:
Whether the circumstantial evidence established in the case is sufficient to convict the appellant beyond reasonable doubt.
Whether the sentence of death is warranted under the rarest of rare doctrine, or if the sentence should be mitigated to life imprisonment.
Ratio Decidendi:
The convergence of multiple, fully established circumstantial evidence, including the motive of closeness to the family, the enticement of the minor, the recovery of the body, and the fresh injuries on the accused, left no room for doubt. The court applied the rarest of rare doctrine, finding the crime to be of extreme depravity, and concluded that the aggravating factors far outweighed any potential mitigation, thus justifying the death sentence.
Result:
The appeal was dismissed, and the conviction and death sentence were upheld.
DeathPenalty - Referred to for guidelines on imposing the death penalty in the context of sentencing policy.
DeathPenalty - Referred to for propositions formulated regarding imposition of death sentence in gravest cases.
JUDGMENT
M.K. Mukherjee, J.-The appellant was tried for the convicted of offences punishable under Sections 363, 376, 302 and 201 IPC by the Additional Sessions Judge, Shahdol. For his conviction under Section 302 IPC he was sentenced to death and for the other convictions to different terms of rigorous imprisonment. As the appeal preferred by him in the High Court was dismissed, he has filed the instant appeal after obtaining special leave.
2. Briefly stated the case of the prosecution is as follows :
(a) Parmeshwar Lal Sharma (PW 1) along with his wife and three children used to reside at Bhutari Tolla in the township of Budhar. Of the three children, Pinky (the deceased) was the youngest and her age at the time of her death was about seven years. The appellant who was also a resident of the same locality used to occasionally visit the family of Parmeshwar and his children used to address him as Tiwari Uncle .
(b) On April 30, 1995 at or about 6 P.M. Parmeshwar had gone to a hair cutting saloon in the local market along with his son Santosh (PW 4) and daughter Pinky. After Santosh and Pinky had their hair cut they went out of the saloon to play outside while Parmeshwar stayed back for his turn. After sometime Pinky went to the television repairing shop of the appellant which was by the side of the saloon. The appellant was then playing ludo with Suresh Gupta (PW 8) in his shop. Pinky requested the appellant to give her some toffees and biscuits whereupon he took her to the nearby grocery shop of Budhsen Gupta (PW 3), purchased a packet of biscuits and gave it to her. Thereafter both of them left shop of Budhsen.
(c) After his hair-cut when Parmeshwar came out of the saloon and enquired of his daughter, Santosh told him that Pinky had gone to the shop of the appellant and that he had given biscuits to her. On getting that information Parmeshwar along with Santosh went to the shop of the appellant but found it closed. They then went back to their house only to find that Pinky had not returned. Parmeshwar then went to the house of the appellant but he was not available there. Accompanied by his wife and other two children Parmeshwar then went in search of Pinky and in course of the search they met Hari Krishna Soni (PW 10) and Subhash Chander Soni (PW 2) at or about 10.30 P.M. on a cross road near the shop of the appellant. As advised by them he sent back his wife and children home and again went to the house of the appellant accompained by them. While they were waiting there they saw the appellant coming towards his house completely drenched. He was then wearing only an underwear with some clothes pressed under his armpit. When they enquired about Pinky he told them that after he had given the packet of biscuits to her she left. All three of them then went to Budhar Police Station at or about 1 A.M. and reported that Pinky was missing.
(d) After recording the report in the Station diary book (Ext. P.15/C) H.C. Munna Prasad went in search of Pinky but could not trace her out. However, on the basis of the enquiry conducted by him Station House Officer Shri V.D. Tripathi (PW 11) registered a case under Sections 363, 364, and 366 IPC (Ex. P.16) and took up investigation. On the following day, i.e., May 2, 1995 in the afternoon the appellant was arrested by Shri Tripathi and then interrogated in presence of Hari Krishna and Din Dayal. On such interrogation the appellant disclosed that he had thrown the dead body of Pinky in a well and concealed her frock near a mahua tree, Shri Tripathi recorded the disclosure statement of the appellant (Ex. P.8) and then, led by the appellant and accompanied by the above two witnesses went to the well of one Ramjiyawam Lodhi and found the dead body of Pinky floating in the water. After Shri Tripathi took the photograph of the floating dead body (Ex. P. 3) it was brought out of the well. He then prepared a recovery memo of the dead body (Ex. P. 9) which was signed by the appellant as also the witnesses present there. Shri Tripathi held inquest thereupon, prepared a report in respect thereof (Ex. P. 14), and then sent it for post-mortem examination. Pursuant to the statement made by the appellant, Shri Tripathi recovered a blood stained frock (Article A) and seized it under a seizure memo (Ex. P. 10).
(e) On the same day Dr. K.K. Gautam (PW 13) held autopsy on the dead body of Pinky and found a lacerated wound on the right side of the mouth, abrasions on both arms, contusion on the left knee, laceration on the labia majora with clotted blood, laceration on the posterior vaginal wall, hymen ruptured, labia majora and labia minora swollen and blood around the orifice of the vagina. Dr. Gautam also found three contusions on the left side of the neck below the level of the thyroid with abrasions all around, brain and its membrane congested, hyoid bone and thyroid cartilage fractured with haemorrhage on the tissues around the fractures, the fourth rib on both the side fractured and uterus deeply congested and swollen. He opined that the deceased was raped and that the cause of her death was asphyxia owing to throttling. According to him all the injuries were ante mortem in nature. Dr. Gautam prepared a slide from the vaginal discharge of the deceased and arranged to send it for chemical analysis by the Forensic Science Laboratory (F.S.L.) through the Investigating Officer.
(f) On the following day (May 3, 1995) the appellant was sent to the Primary Health Centre for his medical examination. Dr. B.N. Sharma (PW 7), who examined him found one abrasion on his right knee and another on the glans penis but there was no smegma. In his opinion the appellant was competent to commit sexual intercourse and that the injury found on the glans penis could have been caused while committing rape on the girl of tender age. According to him the injury found on the knee of the appellant could hava been caused while committing sexual intercourse with the victim lying on the bare floor of a room. Dr. Sharma prepared a slide of semen of the appellant and along with his underwear sent the same for chemical analysis through Const. Kamla Prasad. The frock which was recovered in pursuance of the statement of the appellant and was identified by Parmeshwar as that Pinky was also sent for such examination. On receipt of the reports of the F.S.L. and completion of investigation Shri Tripathi submitted a charge-sheet against the appellant.
3. The appellant pleaded not guilty to the charges levelled against him and his defence was that he had been falsely implicated.
4. In the absence of any eye witness the prosecution relied upon the following circumstances to establish the charges levelled against the appellant :
(i) In the evening of April 30, 1995 the deceased went to the T.V. repairing shop of the appellant when he was playing ludo with Suresh Gupta (PW 8) and asked him to given him some biscuits;
(ii) Accompanied by the deceased the appellant went to the grocery shop of Budhsen (PW 3), purchased a packet of biscuits and gave it to her;
(iii) At or about 8.30 P.M. Purshottam Lal (PW 5) saw the appellant along with a girl aged about 6/7 years going towards the bus stand;
(iv) Around mid night the appellant was found by Parmeshwar Lal (PW 1), Subhas Chander Soni (PW 2) and Hari Krishna Soni (PW 10) returning to his house completely drenched (which indicated that he had taken a bath) and wearing only an underwear with some clothes under his armpit;
(v) Pursuant to the statement made by the appellant on May 2, 1995 to Inspector V.D. Tripathi (PW 11) in the presence of Hari Krishna Soni (PW 10) and others, the dead body of Pinky was recovered from a well and her frock from a place which was not accessible to all;
(vi) Whle conducting autopsy Dr. Gautam (PW 13) found a large number of injuries on the person of the deceased, nature of which indicated that she had been raped and strangulated to death;
(vii) On examining the appellant on May 3, 1995 Dr. Sharma (PW 7) found some injuries on his person which were about 72 hours old and likely to have been caused while having sexual intercourse with a girl of tender age; and
(viii) Blood was found on the frock of the deceased and her vaginal smear and on the underwear of the appellant.
4. Both the trial Court and the High Court detailed and discussed at length the evidence of all the witnesses who were examined by the prosecution to prove the above circumstances and held that each of the above circumstances stood conclusively proved and that those circumstances unerringly pointed to the guilt of the appellant.
5. We have also closely scrutinised the evidence and our such exercise persuades us to unhasitatingly hold that the concurrent findings entered by the learned Courts below are unexceptionable. It is unnecessary therefore for us to burden this judgment with a repetition of the details of the evidence. It is of course true that the entire case is based on circumstantial evidence but the tell-tale circumstances all of which stand firmly established are not compatible with any other reasonable hypothesis except that the appellant kidnapped Pinky, committed rape on her, then strangulated her to death and to cause disappearance of evidence of the murder threw her dead body in a well. The conviction of the appellant for the offences under Sections 363, 376, 302 and 201 IPC must, therefore, be upheld.
6. That brings us to the question whether the sentence of death imposed upon the appellant by the trial Court for his conviction under section 302 IPC and confirmed by the High Court should be maintained or not. In Bachan Singh v. State of Punjab1 this Court indicated, while discussing the sentencing policy, the guidelines to be followed for imposing the extreme penalty of death. From the guidelines so indicated, this Court in its later judgment in Machhi Singh v. State of Punjab2 formulated the following propositions, which are to be applied when the question of awarding death sentence arises :
(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 or 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 has to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised."
7. Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances - but found aggravating circumstances aplenty. The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call her Tiwari uncle . Obviously her closeness with the appellant encourage her to go to his shop, which was near the saloon where she had gone for a haircut with her father and brother, and ask for some biscuits. The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a preclude to his sinister design which unfolded in her kidnapping, brutal raps and gruesone murder - as the numerous injuries on her person testify; and the finale was the dumping of her dead body in a well. When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a rarest of rare cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society a abhorrence of such crimes.
The appeal is therefore dismissed.
Appeal dismissed.
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