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SUPREME COURT OF INDIA
S.A. BOBDE, L.NAGESWARA RAO, R. SUBHASH REDDY, JJ.
RAJU JAGDISH PASWAN – Appellants
Versus
THE STATE OF MAHARASHTRA – Respondent
Criminal Appeal Nos. 88-89 of 2019 (Arising out of SLP (Crl.) Nos.5422-5423 of 2013)
Decided on : 17-01-2019
(b) Indian Penal Code, 1860 – Section 302 – Death penalty – Rarest of rare cases – Appellant dragging a girl of nine years into a sugarcane field, raping her and dumping her in a well – Offence brutal – But not committed in a pre-planned manner – Appellant was aged 22 years at the time of commission of the offence – Appellant not having propensity of committing further crimes – Not continuing threat to society – Appellant’s reformation and rehabilitation not ruled out – Held, this case does not fall within the rarest of rare cases. (Para 9, 10)
(1973) 1 SCC 20; (1979) 3 SCC 646; (1980) 2 SCC 684; (1983) 3 SCC 470 – Relied upon
(c) Criminal jurisprudence – Punishment – Proportionality – Article 21, Constitution of India – A savage sentence is an anathema to Article 21 – Punishment must be proportionate to the nature and gravity of offences. (Para 11)
(1983) 2 SCC 277; (2015) 9 SCC 502 – Relied upon
463 U.S. 277 (1983); 433 U.S. 584 (1977); 458 U.S. 782 (1982); 445 U.S. 263 (1980); 501 U.S. 957 (1991) – Referred
(d) Indian Penal Code, 1860 – Section 302 – Appellant held not deserving death penalty – At the same time, life imprisonment in normal terms effectively for 14 years held to be disproportionately low – Appellant directed to be incarcerated for a period of 30 years. (Para 13)
(2008) 13 SCC 767; (2016) 7 SCC 1; (2016) 9 SCC 675; (2014) 12 SCC 274; (2014) 5 SCC 353; (2012) 5 SCC 766; (2014) 4 SCC 69 – Relied upon
Facts of the case:
The issue that arises in these Appeals is whether the death penalty imposed on the Appellant is disproportionate to the crime committed by him.
Finding of the Court:
Society has legitimate interest in punishment to those infringing law.
Offence of raping and dumping a 9 year old girl in well resulting in her death is brutal and horrendous, but in absence of the offence committed in a pre-planned manner it is not rarest of rare cases. Death sentence not warranted.
When death sentence becomes excessively harsh in comparison of gravity of offence, but normal life sentence is found to be disproportionately lenient, life imprisonment for 30 years would be just.
Result: Appeal partly allowed.
JUDGMENT :
L. NAGESWARA RAO, J.
Leave granted.
1. The issue that arises in these Appeals is whether the death penalty imposed on the Appellant is disproportionate to the crime committed by him.
2. At 20.45 hrs on 21.06.2010, Hanmant Sheshrau Shirsat gave a statement in the Miraj Rural Police Station that his daughter who was 9 years old and studying in the 4th standard at Shri Samarth Ashram School, Bedag was missing since 10.00 am. He stated that he could not find his daughter when he went to the school to bring her home at 5.15 pm on that day. He was informed by her class teacher that his daughter did not come to school. Shirsat started searching for his missing daughter. Akash (PW-4), a boy residing behind Marguaai Temple and his sister Pooja gave information that Shirsat’s daughter was taken by a person wearing black pant and black shirt to the sugarcane field ahead of Odya village. Shirsat accompanied the police in the search for his daughter in the sugarcane field where they found her school record book. On further inquires made in the village, Sidram Sakharam Khade (PW-13) who owns a provision store at Bedag informed that he spotted a person wearing black clothes who came to his shop to buy tobacco. The villagers and the police reached Balakrishna Poultry Farm and inquired about the person wearing black clothes. It is relevant to state that Shirsat is also working in Balakrishna Poultry Farm. The Appellant initially denied any knowledge about the missing girl. However, on further interrogation by the police, he revealed that the girl was dragged to the nearby sugarcane field by closing her mouth tightly to stop her from screaming. He forcibly raped her and then pushed her into a nearby well. A search was conducted to find the body from the well which was unsuccessful. The police summoned an experienced diver Balu Mahadeo Patil (PW-5) who took out the dead body from the well. Shirsat identified the dead body to be that of his daughter. An FIR was registered under Section 302, 376, 201 of the Indian Penal Code, 1860 (hereinafter ‘IPC’). Postmortem was conducted by PW-3 Dr. Sunil Patil and PW-9 Dr. Juber Momin. They have stated in their evidence that froth was coming out of the mouth of the deceased and there was nasal bleeding as well. They found cutis anserina on both palms and sole of the feet. They also found that the mucosa of vagina was congested and redness present over mucosa of anus with congestion. There was a recent complete rupture of hymen. Some sticky liquid was coming out of the mouth of the deceased. All the injuries were found to be ante-mortem. The Doctors deposed that there was evidence of vaginal as well as anal intercourse. The cause of death was stated to be drowning.
3. After examining the evidence on record, the trial court convicted the Appellant under Sections 302, 376 (2) (f) and 201 IPC. The trial court considered the following aggravating and mitigating circumstances before sentencing the Appellant :
“i. Accused was serving in the same factory where the victim's father was serving and residing in the same factory premises.
ii. There is strong circumstance of accused knowing the school timing of the victim and the fact that she used to go to school alone, which is far away from factory premises.
iii. The road from village to factory has less traffic.
iv. The girl was taken from Marguaai Temple to the sugarcane field. The distance is approximately 1 km.
v. The height of the sugarcane in the field can be seen from the photographs on record. It makes the inside things not visible from the road going nearby.
vi. Accused had natural as well as unnatural sexual intercourse with the girl, which resulted in the girl becoming unconscious.
vii. Accused had pressed her mouth and nose in such a way that froth had come out of her mouth and there was nasal bleeding.
viii. Accused had then taken the girl in unconscious state to the well at a distance of 150 sq.ft. away from the place of rape and then thrown her into the we
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