2019 Supreme(SC) 805

SUPREME COURT OF INDIA
R.F. NARIMAN, SURYA KANT, SANJIV KHANNA, JJ.
Manoharan – Appellant
Versus
State by Inspector of Police, Variety Hall Police Station, Coimbatore – Respondent
Criminal Appeal Nos. 1174-1175 of 2019 [Arising out of SLP (Criminal) Nos.7581-7582 of 2014)
Decided On : 01-08-2019

IMPORTANT POINTS
Court should rely on voluntary confessional statement recorded by Magistrate.
Absence of seamen or blood on body of deceased becomes insignificant on DNA matching.
Aggravating and mitigating circumstances must be balanced before awarding death sentence.

Headnote:Per R.F. Nariman, J.

       (a) Indian Penal Code, 1860 - Section 376 - No direct evidence of rape - Circumstantial evidence including medical evidence, injury on the private part of accused, absence of panty from body of deceased, recovery of the same from vehicle used by appellant, DNA matching of hair on panty and blood sample of appellant, however, confirming sexual assault by appellant on the victim - High court rightly convicted appellant u/s 376. (Para 8, 9, 16)

       (b) Code of Criminal Procedure, 1973 - Section 164 - Confessional statement - Appellant in police custody till14.11.2010 - Statement recorded on 20.11.2010 - Appellant repeatedly stating on query of magistrate that he was making the statement voluntarily - Partial retraction made one year and nine months thereafter - No infirmity in recording confessional statement. (Para 10)

       (c) Criminal trial - Last seen theory - PW.20, PW.25 and PW.23 evidence of appellant being last seen with children, corroborated by confessional statement and its partial retraction - High court rightly believing last seen theory. (Para 11)

       (d) Indian Penal Code, 1860 - Section 376 - Absence of seamen or blood on body of deceased - Insignificant on DNA matching. (Para 13)

       (e) Indian Penal Code, 1860 - Section 302 r/w Section 5 and 6, Protection of Children from Sexual Offences Act, 2012 - Instantly cold blooded crime committed involving rape of a minor girl and murder of two children in the most heinous fashion possible - No remorse shown by Appellant at all - Also unlikely that the appellant, if set free, would not be capable of committing such a crime yet again - Death penalty rightly imposed. (Para 25)

       Per Sanjiv Khanna, J.

       (f) Indian Penal Code, 1860 - Section 302 - Death sentence - ‘Rarest of rare’ cases - Aggravating and mitigating circumstances - Girl of 10 years of age sexually assaulted and raped and murdered along with her 7 years old brother by appellant - Punishment must be severe - Life imprisonment inadequate. (Para 20)

       (g) Criminal trial - Circumstantial evidence - Evidence of PW 24 not acceptable - Discrepancy about hair on the panty of deceased - Recovery not stating that hair was sticking to panty, but forensic report stating it to be sticking to panty - Five strands of hair receive by forensic lab - Only two strands sent for DNA matching - Debatable if hair was pubic hair - However, confessional statement reliable and sufficient for conviction. (Para 24, 25, 26, 29)

       (h) Criminal trial - Confession u/s 164 CrPC - A statement u/s 313 Cr.P.C. - Implication - First step back into society - Shows remorse - A mitigating circumstance - Retraction of confession by itself, an absence of remorse or repentance. (Para 34, 35, 36, 37)

       (i) Criminal jurisprudence - Sentencing - Heinous crime - Life imprisonment inadequate - Mitigating circumstances must be considered before awarding death sentence - Instantly mitigating circumstances include confessional statement before Magistrate showing remorse, appellant’s young age, belonging to poor family, having aged parents and himself a first time offender - Conviction u/s 302, 376(2)(f) and (g) and 201 IPC upheld - Sentence modified to imprisonment till his natural death, without remission/commutation under Sections 432 and 433 Cr.P.C. (Para 38, 39, 40)

       Facts of the case:

       One Mohanakrishnan (at 7.50 a.m. on 29.10.2010) who had borrowed a vehicle from PW.7 its owner, picked up two children, a girl aged 10 years old and her brother aged 7 years old from outside a Hindu Temple as the children were preparing to go to school. This Mohanakrishnan was seen by PW.3, the priest of the temple and by PW.9, the grandmother of the two children, taking the children away in the aforesaid vehicle. Mohanakrishnan then drove the children and at 9.30 a.m. picked up the Appellant from his house. The children were then taken to a remote area called the Gopalsamy Temple Hills at roughly 10.45 a.m. at which point rape was allegedly committed on the girl whose hands were tied by both Mohanakrishnan and the Appellant. Thereafter, the two accused administered a mixture of cow dung powder and milk. Both children ingested only a small portion of the cow dung powder mixed with the milk and did not die. The two accused thereafter threw the childten in Parambikulam-Axhiyar Project canal. At 5.00 p.m., PW.24 saw the school bags of the two children floating in the canal, which were then given to PW.22. Later on the same evening, PW.22 informed PW.10 the principal of the school who then informed the police between 6.15 p.m. and 6.30 p.m. the same evening. At 9.00 p.m. on the same day, Mohanakrishnan went to the house of PW.7, who informed the police, as a result of which Mohanakrishnan was arrested at 9.45 p.m. on the same night at PW.7’s house. At 9.30 a.m. on the next day, the girl’s body was recovered from the canal. On 31.10.2010, the present Appellant was arrested at 7.15 a.m. and on the same day, the boy’s body was also recovered from the canal. To complete the narrative, Mohanakrishnan was shot dead by the police on 9.11.2010 in an encounter. That left only the Appellant to be tried as an accused. A confession was recorded before the Magistrate in a statement made under Section 164 of the Code of Criminal Procedure by the Appellant on 20.11.2010 which was partially retracted only by a letter dated 25.7.2012, which the Appellant asked the trial court to treat as a statement under Section 313 of the Code of Criminal Procedure.

       The trial court held the Appellant guilty under Section 120-B, Section 364-A, Section 376, Section 302, Section 302 read with Section 34 and Section 201 of the Indian Penal Code. Under Section 376 IPC, the Appellant was awarded life sentence, and for the offence under Section 302 IPC, he was given the death sentence.

       The High Court set aside the Appellant’s conviction under Section 120-B and 364-A of the Penal Code, but confirmed the sentences under Sections 376, 302, Section 302 read with Section 34, and Section 201. After considering aggravating and mitigating circumstances, ultimately the death sentence imposed by the trial court was confirmed by the High Court.

       Finding of the Court (per majority)

       There is no error in conviction and sentence. Death sentence affirmed.

       Result: Appeal dismissed.