In the present case which dealt with the gruesome murder of a minor boy aged 10 years after subjecting him to carnal intercourse and then strangulating him to death, the Court was of the view that incarceration of a further period of thirty years, without remission, in addition to the sentence already undergone by the appellant, will be an adequate punishment in the facts and circumstances of the case, rather than death sentence. [Anil @ Anthony Arikswamy Joseph v. State of Maharashtra, Criminal Appeal Nos.1419-1420 of 2012, decided on February 20, 2014]
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Anil @ Anthony Arikswamy Joseph v. State of Maharashtra,
K. S. RADHAKRISHNAN, J.
1. We are, in this case, concerned with a gruesome
murder of a minor boy aged 10 years after subjecting him to
carnal intercourse and then strangulating him to death.
2. The accused, Anil @ Anthony Arikswamy Joseph, was
charge-sheeted with offences punishable under Sections
302, 377 and 201 of the Indian Penal Code (IPC). The
Principal District and Sessions Judge, Nagpur in Sessions
Trial No.167 of 2008 convicted the Appellant for the offence
punishable under Section 302 IPC and sentenced him to
death and also sentenced to pay a fine of Rs.10,000/- and in
default to suffer rigorous imprisonment for one year and for
the offence punishable under Section 377 IPC, he was
sentenced to suffer rigorous imprisonment for 10 years and
to pay a fine of Rs.1,000/- and in default to suffer rigorous
imprisonment for a period of three months. The Appellant
was also convicted for the offence punishable under Section
201 IPC and was sentenced to suffer rigorous imprisonment
for 3 years and to pay a fine of Rs.1,000/- and in default to
suffer rigorous imprisonment for a period of three months.
Substantive sentences, it was ordered, would run
concurrently. Since the accused was sentenced to death,
reference was sent to the High Court for confirmation of
death sentence. The accused also filed Criminal Appeal
No.17 of 2011.
3. The Appeal and the criminal confirmation case then
came up for hearing before a Division Bench of Nagpur
Bench of the Bombay High Court on 10.08.2011 and the
Bench noticed that the DNA profile blood sample and semen
sample were not brought before the trial court. Further, it
was noticed that PW5, the Assistant Chemical Analyzer of
Forensic Science Laboratory, Mumbai, had given detailed
evidence in respect of the contents of Ext.35. She stated
that she had occasion to compare DNA of blood sample of
the accused with Ext.1 (semen stains on half pant) and Ext.5
(anal smear of the deceased) and the DNA samples were
matching. PW5 submitted Ext. 38 report. Ext. 38, it was
noticed, did not disclose any comparison, as stated by PW5,
which was done in FSL at Mumbai. Considering the serious
nature of the offence and considering the fact that the whole
case against the accused was based on circumstantial
evidence, the Court felt that it would be necessary to recall
PW5 and record her further examination-in-chief with
reference to her report in respect of the DNA profile of the
accused, that too with reference to her evidence at
paragraph No.3 of her examination–in-chief on 25.09.2009.
4. The Bench, therefore remitted the case to the trial
court for production of additional evidence. The operative
portion of the order reads as under :
(i) The prayer for production of copies of
Judgments in Sessions Trial No.118 of 1997
and Sessions Trial No.39 of 2002 does not
survive as it is not pressed.
(ii) The prosecution shall move the learned Trial
Court for production of the additional
evidence.
(iii) The prosecution shall recall P.W.5 and shall
re-examine the said witness further with
referenced to the DNA profile of blood sample
of the accused and the comparison thereof
with Exs.1, 4 and 5 of the report Ex.35.
(iv) The learned Trial Court shall be at liberty to
allow the prosecution to produce any other
documents connected with the evidence or
concerning the collection of samples,
carrying the same to F.S.L. and analysis
thereof.
(v) The learned Trial Court shall also be at liberty
to allow the prosecution to examine any
other witness pertaining to or concerning
with the collection of samples, carrying the
same to F.S.L. and analysis thereof.
(vi) The prosecutions shall recall P.W.10 and
P.W.14 and shall examine them further with
reference to forwarding samples Exs.1, 4 and
5 of Ex.35 and blood and semen samples of
accused-appellant.
(vii) Needless to state that the accused-appellant
shall be given an opportunity to crossexamine
the witnesses recalled or fresh
witnesses examined following this order.
(viii) It is made clear that the learned trial Court
shall be at liberty to pass any incidental order
to achieve the purpose of this order, but shall
be careful to see that the prosecution does
not misuse this opportunity of recording of
additional evidence to introduce any other
evidence, which is not subject matter of the
present order.
(ix) The original record and proceedings be sent
back to the learned Sessions Judge, Nagpur.
(x) The learned Sessions Judge shall comply with
this order within 30 days from the date of
receipt of this order and shall certify the
additional evidence to this Court immediately
thereof.
Application accordingly stands disposed of.”
5. The Sessions Court, after recording the additional
evidence and recalling and further examining the witnesses,
as ordered, forwarded the same to the High Court. The
appeal was then heard by a Division Bench of the High Court
on 10.10.2011 along with the confirmation case and the
additional evidence recorded. The High Court, after
appreciating the oral and documentary evidence and
arguments advanced by the counsel on either side,
confirmed the death sentence noticing the brutal and
grotesque manner in which the crime was committed. The
High Court held that the young boy of tender age was
subjected to unnatural sex for the satisfaction of the lust of
the accused which, according to the High Court, falls under
the category of rarest of the rare cases. The High Court,
therefore, dismissed the appeal and confirmed the death
sentence, against which these appeals have been preferred.
6. Shri P.C. Aggarwala, learned senior counsel appearing
for the Appellant, submitted that the prosecution has failed
to prove the case beyond reasonable doubt and all the
circumstances put together would lead to only one inference
that the accused is not guilty of the offences charged against
him. Learned senior counsel also submitted that the
prosecution has not succeeded in establishing the last seen
theory and the evidence adduced by PW2, PW3, PW8 and
PW9 would not establish that the victim was last seen with
the accused. Learned senior counsel also submitted that
the prosecution could not establish that the articles stated to
have been recovered from the house of the accused were
that of the deceased. The evidence of PW1 and PW6, it was
pointed out, was totally unworthy and ought to have been
discarded. Learned senior counsel also submitted that the
evidence in respect of DNA Profile is completely
manufactured to rope in the accused and the evidence of
PW10 and PW14 in that respect cannot be believed.
7. Shri Shankar Chillage, learned counsel appearing for
the prosecution, on the other hand, submitted that the
Courts below have correctly appreciated the evidence of
PW2, PW3, PW8 and PW9 and have come to the conclusion
that the victim was last seen in the company of the accused
and all the principles laid down by this Court to establish the
last seen theory have been completely satisfied, so far as
the present case is concerned. Learned counsel also
submitted that the evidences of PW1 and PW6 have been
correctly appreciated by the Courts below and the
prosecution has succeeded in proving that the articles
recovered from the possession of the accused were that of
the deceased. Learned counsel also submitted that the
Courts below have correctly appreciated the evidence of
PW5, the Assistant Chemical Analyser, who conducted the
DNA test and deposed that she obtained the blood sample of
the accused and matched the profile from the blood profile,
which was sent as Ex.1 i.e. semen stain cutting from the half
pant and submitted the Report Exh.38. Learned counsel
submitted that the evidence of PW5 has to be appreciated in
the light of the evidence of PW12, PW13, PW15 and PW16,
which would clearly indicate that the DNA profile obtained
from the anal smear of the deceased matched with the
accused. Learned counsel submitted that the DNA profile
conclusively indicates that the accused has committed the
offence punishable under Section 377 IPC. Learned counsel
also submitted that the High Court has rightly held that the
case falls under the rarest of the rare category and correctly
awarded the death sentence.
8. PW7, Shobha Vaidya, mother of the deceased, a maid
servant, was running here and there anxiously for few days
to know the whereabouts of her missing son aged 10 years.
The boy had gone to the school on 10.1.2008 and normally
he used to return in the evening, but on that day he did not
return. Since whereabouts of the boy were not known for
few days, she lodged a complaint on 15.1.2008 at about 5.00
p.m. before PW10, the Sub-Inspector of Police, attached to
Crime Branch, Nagpur, who was posted at Sadar Police
Station. Meanwhile, PW2, Mary, a lady, residing near the
house of the accused, informed PW10 that the dead body of
a boy aged 9-10 years was seen floating in a well at Juna
Kabrastan (old cemetery). PW10 then proceeded to the spot
and with the assistance of fire brigade took the dead body
from the well and sent the same to Mayo Hospital for
conducting post-mortem examination. After getting the
post-mortem report, PW10 lodged the report and registered
the offence under Sections 377, 302 and 201 IPC.
9. PW14, Police Sub-Inspector attached to Sadar Police
Station, was entrusted with the investigation. By that time,
the accused was arrested on 17.1.2008 and, on his
disclosure, various articles belonging to the deceased were
recovered from the house of the accused and they were
seized in the presence of Panchas. School bag of the
deceased, which was black in colour and had pink stripes,
concealed in a box was recovered. Bag was opened in the
presence of panchas and it was found to contain a Bal
Bharati textbook, Mathematics and English books, two notebooks,
all bore the name of the deceased. Further, a
Barmuda pant, belonging to the accused and a jeans
belonging to the deceased were recovered on 17.01.2008.
The accused was referred for medical examination and the
blood sample was taken on 18.01.2008. Samples of blood
semen and nail clippings were taken under Ext.17. On the
disclosure of the accused, the shirt worn by him, which was
concealed near a tree under a stone, was recovered on
22.01.2008. Seized articles were referred to the Chemical
Analysis at Nagpur. The reports of the Analyzer are at
Exts.91 and 92, while the DNA reports are at Exts.35 and 38.
After completing the investigation, the police charge-sheeted
the accused for offences punishable under Sections 302, 377
and 201 IPC. On the side of the prosecution, fourteen
witnesses were examined and the documentary evidence
were brought on record and on the side of the defence, none
was examined.
10. PW2, Mary, who runs a tea stall in front of the Income
Tax Office, which is near the old cemetery, was examined by
the prosecution to prove that the boy was seen in the
company of the accused. She stated that she knows the
accused who is residing just in front of her house. She has
also deposed that on 13.1.2008, the accused had come to
her shop and demanded Gutka, which she did not give.
Later, a boy of about 11 years was sent from the house of
accused, who purchased few items from her shop and
returned to the same house. PW3, a neighbour of the
accused, is also residing near the old cemetery. She has
also deposed that she had seen the boy with the accused on
10.01.2008 and 11.01.2008. PW8, the sister of the accused,
who was also residing with the accused in his house, stated
that she saw a boy aged about 10 to 12 years in the
company of the accused, during the above-mentioned period
and on the fateful day, that is, in the mid-night of
12.01.2008 and 13.01.2008, she heard the cries of the boy
from the room of the accused. PW9, a neighbour of the
accused, also noticed one boy aged 10 years accompanying
the accused and that, on the midnight of 12.01.2008, she
heard the cries of a small boy emanated from the side of the
house of the accused.
11. We have gone through the evidence of PW2, PW3, PW8
and PW9 in its entirety and, in our view, they are trustworthy
and reliable. In our view, the prosecution has succeeded in
establishing its case beyond reasonable doubt that the
deceased was last seen in the company of the accused and
that the findings recorded by the trial Court and affirmed by
the High Court call for no interference.
12. PW1 and PW6, Panchas of Ex. 13 and Ex.40
respectively, were examined by the prosecution to prove the
recovery of the pant as well as school bag of the deceased.
School bag was recovered from a box which was placed
beneath the cot in the house of the accused. Seizure
panchanams vide Exts.15 and 19 give the details of the
articles seized at the instance of the accused. The school
bag contained books and note books which bore the name of
the deceased. The pant and the school bag along with
books contained therein would clearly indicate that the boy
was in the company of the accused on the fateful day.
Consequently, the presence of the deceased in the room of
the accused has been clearly established and the finding
recorded by the trial Court as well as the High Court on that
ground also calls for no interference.
13. PW4 is the doctor who conducted the post-mortem
examination of dead body of the deceased. The postmortem
report (Exh.33) indicates the following external and
internal injuries on the dead body of the deceased :
“External Injuries
(1) Anus dilated and appears patalous, perional
margin and mucosa appear inflamed, no
evidence of tear or foreign body.
(2) Position of Limbus straight.
(3) Multiple contused abrasions (6 in numbers)
present over forehead of size varying from
1.5 cm x 1.5 cm to 2 cm x 2 cm.
(4) Incised wound present over right lateral
forehead oblique of size 1.5 cm x 0.5 cm x
bone deep.
(5) Contused abrasion at right preauricular area
of size 2 cm x 2 cm.
(6) Contused abrasion at right face, 1.5 cm
below the lower eye lid of size 2 cm x 2.5 cm.
(7) Centurion present at chin of size 2 cm x 2.5
cm.
(8) Graze abrasion present at right arm, anteri
medial aspect, lower 1/3rd of size 3.5 cm x 5
cm directed downward and right laterally.
Internal Injuries
(1) Right frontal region of size 4 cm x 5 cm x 0.5
cm.
(2) Right parieto-temporal region of size 5 cm x 4
cm x 0.5 cm.
(3) Left occipital region of size 4 cm x 4 cm x 0.5
cm.
Brain, party reddish tinged appearance to the
right parieto-temporal region.”
14. PW4 has stated that all the internal injuries correspond
to external injuries and they were ante-mortem and were
ordinarily sufficient to cause death. PW4 has also opined
that there was possibility of carnal intercourse with the
deceased, though the cause of death was head injury. PW4
also stated that he had seen the DNA report at Exh.35 and
stated that the report indicates that anal smear of the
deceased gave a mixed DNA profile which matches with
semen on half pant and blood of victim. PW4 was also
shown another report of DNA, which was in respect of the
control sample blood of the accused and stated that DNA
profile of blood matches with DNA profile of semen found in
the anus of the deceased. Further, he has also stated that
injury nos.1, 3, 4 and 5 were possible by hard and blunt
object while injury no.2 was caused by sharp cutting edge
and injury no.6 was caused by hard and rough object. Facts
clearly indicate that the fatal injuries were caused to silence
him, after satisfying lust in a barbaric manner. Attempts
were made to destroy the evidence which were also proved.
PW4 also categorically stated in respect of injury no.1 that it
should read as anus dilated and appears patalous, perianal
margin anal mucosa appear inflamed, though no evidence of
tear or foreign body.
15. PW5, the Assistant Chemical Analyzer, Forensic Science
Lab, Kalina, Mumbai stated that she had received the parcels
from the Regional Forensic Science Laboratory, Nagpur on
24.1.2008 and she started the analysis on the same day.
She stated that Exh.1 is a DNA profile of the accused and
Exh.5 anal smear is of the deceased, which gave mixed
profile. Further, it is stated that the profile obtained from
Exh.1 semen stains matches with the profile obtained from
Exh.5 anal smear and also Exh.4 blood stains gauze
collected from the deceased. She stated that she conducted
two tests, one nuclear Short Tandem Repeats (STR) and Y
Short Tandem Repeats (YSTR). PW5, in her report, stated
that she obtained blood samples of the accused and
matched the profile obtained from that blood with the profile
of Exhs.1 and 5 and that the profiles were matching. PW5,
as already indicated, was recalled after the matter was
remitted to the trial Court for getting further evidence and
she repeated that she had analyzed the blood sample of the
accused for DNA profiling and it matched with the sample,
which was sent as Exh.1 i.e. semen stain cutting from the
half pant. She accordingly issued a report as Exh.38.
16. PW12, the Medical Officer attached to Mayo Hospital,
Nagpur was examined to prove that he had received the
requisition for taking blood samples, pubic hair, nails and
semen of the accused under requisition at Exh.75, which was
handed over to the police. PW15 and PW16 were also
examined to establish the procedure followed for taking the
parcel to the Chemical Analyser for DNA test as well as for
collecting blood samples, etc. On going through the
evidence of PW4 and PW5 read with evidence of PW12,
PW15 and PW16, we are of the view that the DNA test was
successfully conducted and that the anal smear matched
with the DNA profile of semen stains which were found on
the pant of the accused and were matched with the control
blood sample of the accused as well as blood sample of the
deceased.
17. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms. DNA
genotype can be obtained from any biological material such
as bone, blood, semen, saliva, hair, skin, etc. Now, for
several years, DNA profile has also shown a tremendous
impact on forensic investigation. Generally, when DNA
profile of a sample found at the scene of crime matches with
DNA profile of the suspect, it can generally be concluded
that both samples have the same biological origin. DNA
profile is valid and reliable, but variance in a particular result
depends on the quality control and quality procedure in the
laboratory.
18. PW5, Dr. Varsha Rathod, stated that since 1994 she
was working as Assistant Chemical Analyzer and has
analyzed thousands of samples including DNA test. She has
stated that she had conducted two tests, one STR and
second YSTR. Both the tests are scientifically proven and
the competence of the doctor who conducted the test is also
not questioned. Consequently, the DNA test report could be
safely accepted, which shows that the deceased boy was
subjected to unnatural sex and offence under Section 377
has been clearly made out.
19. Section 377 is mainly confined to act of sodomy,
buggery and bestiality, which intends to punish a man when
he indulges in a carnal intercourse against the order of
nature with a man or, in the same manner, with a woman.
Sodomy is termed as Pederasty when the intercourse is
between a man and a young boy, that is, when the passive
agent is a young boy. Modi’s Medical Jurisprudence and
Toxicology state that if a passive agent is not accustomed to
sodomy, abrasions on the skin near the anus is likely to
appear and lesions will be most marked in children while
they may be almost absent in adults, when there is no
resistance to the anal coitus. Galster’s Medical Jurisprudence
and Toxicology say that lesions like recent lacerations,
bruising, inflammation of the mucous membrane could be
noticed in passive agent. Article 377 postulates penetration
by the penis into the anus and the merest penetration
suffices to establish the offence. PW4 has clearly noticed
that “Anus dilated and appears patalous, perional margin
and mucosa appear inflamed”. DNA test also proved that
anal smear matched with the DNA profile of smear stains,
which also matched with the control sample of the accused.
Consent of a passive agent is not at all a defence, but, in the
instant case, though a suggestion was made that the boy
had not resisted, being in the company of the accused for
few days, is of no consequence, he being a minor.
Prosecution has clearly established that, after subjecting the
boy to Pederasty, he was strangulated to death.
20. PW8 has categorically stated that she had heard the
cries of the boy during mid-night and she could not sleep till
the cries subsided. PW8 is none other than the sister of the
accused. She heard the cries of the boy coming from the
room of the accused. She is a trustworthy witness and has
no axe to grind against the accused. PW9 has also stated
that she wanted to go to the direction in which she heard the
cries, however, darkness deterred her and others proceeding
to the place of occurrence. Cries heard were obviously in
loud voice, which indicates that the accused had indulged in
such a barbaric act and ultimately killed the boy and later
threw the dead body in the well situated near the premises
of the old cemetery, a spot which was located behind his
house. The Courts below, therefore, concluded that the
offence committed by the accused shows extreme depravity
of mind and shows extreme perversity and, therefore, calls
for extreme punishment i.e. the accused be hanged by neck
till death. We are of the opinion that the case under
Sections 302, 377 and 201 IPC has been clearly made out.
The question is only with regard to the sentence and
whether the present case falls under the category of rarest
of rare case, warranting capital punishment.
21. In Shankar Kisanrao Khade v. State of
Maharashtra (2013) 5 SCC 546, we have dealt with the
various principles to be applied while awarding death
sentence. In that case, we have referred to the cases
wherein death penalty was awarded by this Court for murder
of minor boys and girls and cases where death sentence had
been commuted in the cases of murder of minor boys and
girls. In Shankar Kisanrao Khade (supra), we have also
extensively referred to the principles laid down in Bachan
Singh v. State of Punjab (1980) 2 SCC 684 and Machhi
Singh v. State of Punjab (1983) 3 SCC 470 and the
subsequent decisions. Applying the tests laid down in
Shankar Kisanrao Khade (supra), we are of the view that
in the instant case the crime test and criminal test have
been fully satisfied against the accused. Still, we have to
apply the RR test and examine whether the society abhors
such crimes and whether such crimes shock the conscience
of the society and attract intense and extreme indignation of
the community.
22. We have no doubt in our mind that such types of crimes
preceded by Pederasty are extremely brutal, grotesque
diabolical and revolting, which shock the moral fiber of the
society, especially when the passive agent is a minor.
Recently, this Court in Suresh Kumar Koushal and
Another v. Naz Foundation and Others (2014) 1 SCC 1
has also refused to strike down Section 377, even if such
acts are indulged in by consenting individuals.
23. Accused is now around 42 years of age and when he
committed the crime, he was about 35 years. We have
clearly found that there is no mitigating circumstance
favouring the accused. Age is not a factor favouring him. By
the age of 35, a person attains sufficient maturity and can
distinguish what is good or bad, and there is nothing to show
that he was under any emotional or mental stress and the
offence was committed only to satisfy his lust, in a perverted
way. Accused is not the only son of his parents, but the boy
was a minor, totally innocent and defenceless, the only son
of PW7. The mother, PW7, is a house maid and the son
would have looked after her in her old age and also would
have been of considerable help to her. Son was snatched in
a barbaric gruesome manner only to satisfy the perverted
lust of the accused. PW7, the mother had to see the dead
body of the son floating in the well. PW8, the sister of the
accused and PW9, the neighbour, both ladies heard the cries
of the helpless boy during mid-night but both were helpless.
PW8 could not go out of her room since it was locked from
outside. PW9, a lady could not go to the house of the
accused due to pitched darkness.
24. In Shankar Kisanrao Khade (supra), this Court did
not confirm the death sentence, even though the postmortem
spelt out the act of sodomy as the prosecution had
failed to chargesheet the accused under Section 377 IPC,
which was commented upon by this Court. But, so far as the
present case is concerned, the offences under Section 302
and 377 have been fully established and both the crime test
and the criminal test have been fully satisfied against the
accused. Now, we have to apply the RR Test.
25. We may point out that apart from what has been stated
in Bachan Singh’s case (supra) and Machhi Singh’s case
(supra) this Court in various cases like Om Prakash v.
State of Haryana (1999) 3 SCC 19, State of U.P. v.
Sattan (2009) 4 SCC 736, Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009)
6 SCC 498, held that Court must state special reasons to
impose death penalty, hence, the RR Test.
RR Test
26. R-R Test, we have already held in Shankar Kisanrao
Khade’ case (supra), depends upon the perception of the
society that is “society-centric” and not “Judge-centric”, that
is, whether the society will approve the awarding of death
sentence to certain types of crimes or not. While applying
that test, the court has to look into variety of factors like
society’s abhorrence, extreme indignation and antipathy of
certain types of crimes like sexual assault and murder of
minor girls, intellectually challenged minor girls, minors
suffering from physical disability, old and infirm women, etc.
R-R Test is found satisfied in several cases by this Court like
in Bantu v. State of U.P. (2008) 11 SCC 113, wherein this
Court affirmed the death sentence in a case where minor girl
of five years was raped and murdered. This Court noticed
that the victim was an innocent child and the murderer was
in a dominating position, which the Court found as a vital
factor justifying the award of capital punishment. Shivaji v.
State of Maharashtra (2008) 15 SCC 269, was a case
where a married person having three children, known to the
family of the deceased, ravished the life of a girl aged 9
years and strangulated her to death, this Court affirmed the
death sentence awarded by the High Court. Mohd.
Mannan v. State of Bihar (2011) 5 SCC 317, was a case
where a minor girl aged 7 years was kidnapped, raped and
murdered by an accused aged between 42-43 years. This
Court held that he would be a menace to society and would
continue to be so and could not be reformed and hence
confirmed the death sentence. Rajendra Pralhadrao
Wasnik v. State of Maharashtra (2012) 4 SCC 37 was a
case where a 3 year old child was raped and murdered by an
accused of 31 years old. This Court noticed the brutal
manner in which the crime was committed and the pain and
agony undergone by the minor girl. This Court confirmed
the death sentence.
27. In Haresh Mohandas Rajput v. State of
Maharashtra (2011) 12 SCC 56, this Court opined that the
death sentence, in a given case, can be awarded where the
victims are innocent children and helpless women, especially
when the crime is committed in a most cruel and inhuman
manner which is extremely brutal, grotesque, diabolical and
revolting. Reference may also be made to the Judgments of
this Court in Rabindra Kumar Pal alias Dara Singh v.
Republic of India (2011) 2 SCC 490, Surendra Koli v.
State of U.P. and others (2011) 4 SCC 80 and Sudam @
Rahul Kaniram Jadhav v. State of Maharashtra (2011) 7
SCC 125.
28. This Court in Mahesh v. State of Madhya Pradesh
(1987) 3 SCC 80 deprecated the practice of taking a lenient
view and not imposing the appropriate punishment
observing that it will be a mockery of justice to permit the
accused to escape the extreme penalty of law when faced
with such evidence and cruel acts. This Court further held
that to give the lesser punishment for the appellants would
be to render the justicing system of this country suspect and
the common man will lose faith in courts. In such cases, he
understands and appreciates the language of deterrence
more than the reformative jargon. In Bantu (supra), this
Court placing reliance on the Judgment in Sevaka Perumal
v. State of T.N. (1991) 3 SCC 471 observed as follows:
“Therefore, undue sympathy to impose inadequate
sentence would do more harm to the justice
system to undermine the public confidence in the
efficacy of law, and society could not long endure
under such serious threats. It is, therefore, the
duty of every court to award proper sentence
having regard to the nature of the offence and the
manner in which it was executed or committed,
etc.
Thus, it is evident that criminal law requires
strict adherence to the rule of proportionality in
providing punishment according to the culpability
of each kind of criminal conduct keeping in mind
the effect of not awarding just punishment on the
society.
The “rarest of the rare case” comes when a
convict would be a menace and threat to the
harmonious and peaceful coexistence of the
society. Where an accused does not act on any
spur of the moment provocation and he indulged
himself in a deliberately planned crime and
meticulously executed it, the death sentence may
be the most appropriate punishment for such a
ghastly crime.”
29. We may indicate, unlike Shankar Kisanrao Khade’
case (supra), in this case offence under Section 377 IPC has
been fully proved so also the offence under Section 302 IPC.
Indian society and also the International society abhor
pederasty, an unnatural sex, i.e. carnal intercourse between
a man and a minor boy or a girl. When the victim is a minor,
consent is not a defence, irrespective of the views expressed
at certain quarters on consensual sex between adults.
Reformation and Rehabilitation
30. Learned counsel for the accused submitted that the
accused has no previous criminal history and would not be a
menace to the society. Further, it was also pointed out that
possibility of reformation or rehabilitation of the accused,
who is aged 42 years, cannot be ruled out and the State has
not discharged its responsibility of proving the impossibility
of rehabilitation.
31. In Bachan Singh (supra), this Court has categorically
stated, “the probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to the society”, is a relevant circumstance, that must
be given great weight in the determination of sentence.
This was further expressed in Santosh Kumar
Satishbhushan Bariyar (supra). Many-a-times, while
determining the sentence, the Courts take it for granted,
looking into the facts of a particular case, that the accused
would be a menace to the society and there is no possibility
of reformation and rehabilitation, while it is the duty of the
Court to ascertain those factors, and the State is obliged to
furnish materials for and against the possibility of
reformation and rehabilitation of the accused. Facts, which
the Courts, deal with, in a given case, cannot be the
foundation for reaching such a conclusion, which, as already
stated, calls for additional materials. We, therefore, direct
that the criminal courts, while dealing with offences like
Section 302 IPC, after conviction, may, in appropriate cases,
call for a report to determine, whether the accused could be
reformed or rehabilitated, which depends upon the facts and
circumstances of each case.
32. Learned counsel also pointed out that the accused had
not kidnapped the boy, who voluntarily came and stayed
with him. Learned counsel also pointed out that the entire
case rests upon circumstantial evidence and generally in the
absence of ocular evidence, death sentence is seldom
awarded. Reference was made to few judgments of this
Court in support of his contention, such as State of
Maharashtra v. Mansingh (2005) 3 SCC 131 and Bantu v.
State of M.P. (2001) 9 SCC 615. Learned counsel also
made reference to few judgments of this Court where death
sentences were commuted to life imprisonment, such as
Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC
230, Sahdeo v. State of U.P. (2004) 10 SCC 682, Swamy
Shraddananda v. State of Karnataka (2007) 12 SCC 288,
Shankar Kisanrao Khade (supra), Haresh Mohandas
Rajput (supra), Rajesh Kumar v. State (2011) 13 SCC 706,
Amit v. State of U.P. (2012) 4 SCC 107, etc.
33. PW8 and PW9 heard the cries of the minor boy during
the midnight of 12.01.2008 and after going through their
evidence they reverberate in our ears. Injury Nos.1, 3 to 5
were inflicted by hard and blunt object, while injury no.2 was
caused by sharp cutting edge and injury no.6 was caused by
hard and rash object, over and above, the offence under
Section 377 also stood proved. The murder was committed
in an extremely brutal, grotesque, diabolical and dastardly
manner and the accused was in a dominating position and
the victim was an innocent boy, the only son of his mother.
Accused was aged 35 years when the crime was committed
that is he was a fully matured person. Life of a boy, the only
son of PW7, the mother, was taken away in a gruesome and
barbaric manner which pricks not only the judicial
conscience but also the conscience of the society.
34. Legislative policy is discernible from Section 235(2)
read with Section 354(3) of the Cr.P.C., that when culpability
assumes the proportions of depravity, the Court has to give
special reasons within the meaning of Section 354(3) for
imposition of death sentence. Legislative policy is that when
special reasons do exist, as in the instant case, the Court has
to discharge its constitutional obligations and honour the
legislative policy by awarding appropriate sentence, that is
the will of the people. We are of the view that incarceration
of a further period of thirty years, without remission, in
addition to the sentence already undergone, will be an
adequate punishment in the facts and circumstances of the
case, rather than death sentence. Ordered accordingly.
35. The appeals are, accordingly, disposed of.
……………………………..J.
(K. S. Radhakrishnan)
.….………………………...J.
(Vikramajit Sen)
New Delhi,
February 20, 2014.
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