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SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN & VIKRAMAJIT SEN, JJ.
Anil @ Anthony Arikswamy Joseph – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal Nos.1419-1420 of 2012
Decided On : 20-02-2014
(b) Indian Penal Code, 1860 – Section 377 and 302 r/w Section 235(2) read with Section 354(3), Code of Criminal Procedure, 1973 – Offences u/s 302 and 377 fully established against accused – Both Crime test and criminal test fully satisfied – RR test – Is society-centric and not judge-centric – Society everywhere abhor pederasty, an unnatural sex, i.e. carnal intercourse between a man and a minor boy or a girl – Criminal antecedents and being a menace to the society – Reformation and rehabilitation – Courts, after conviction u/s 302, may call for a report to determine, whether the accused could be reformed or rehabilitated – Appellant 42 years of age having no criminal antecedent – No report against reformation of appellant – Sentence converted to imprisonment for thirty years without remission in addition to period already undergone. (Para 29, 31, 35)
(2013) 5 SCC 546; (1980) 2 SCC 684; (1983) 3 SCC 470; (2014) 1 SCC 1; (1999) 3 SCC 19; (2009) 4 SCC 736; (2009) 6 SCC 498; (2008) 11 SCC 113; (2008) 15 SCC 269; (2011) 5 SCC 317; (2012) 4 SCC 37; (2011) 12 SCC 56; (2011) 2 SCC 490; (2011) 4 SCC 80; (2011) 7 SCC 125; (1987) 3 SCC 80; (1991) 3 SCC 471; (2005) 3 SCC 131; (2001) 9 SCC 615; (2007) 12 SCC 230; (2004) 10 SCC 682; (2007) 12 SCC 288; (2011) 13 SCC 706; (2012) 4 SCC 107 – Relied upon
Facts of the case:
This is a case of a gruesome murder of a minor boy aged 10 years after subjecting him to carnal intercourse and then strangulating him to death.
Appellant was awarded death sentence which was upheld by High Court.
Finding of the Court:
There is no infirmity in conviction.
Result: Appeals disposed of.
Judgment :-
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 cross-examine the witnesses recalled or fresh witnesses examined following this order.
(viii) It is made c
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