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2024 Supreme(SC) 814
SUPREME COURT OF INDIA
B.R. GAVAI, PRASHANT KUMAR MISHRA, K.V. VISWANATHAN, JJ.
Rabbu @ Sarvesh – Appellant
Versus
The State of Madhya Pradesh – Respondent
Criminal Appeal Nos. 449-450 of 2019
Decided On : 12-09-2024
For the Appellant(s) : Mr. N. Hariharan, Sr. Adv. Ms. Shreya Rastogi, Adv. Mr. Bhavesh Seth, Adv. Mr. M.A. Niyazi,Adv. Ms. Zehra Khan, AOR Ms. Anauntta Shankar, Adv. Mr. Sharian Mukherji, Adv. Ms. Sana Singh, Adv. Ms. Punya Rekha Angara,Adv.
For the Respondent(s): Mr. Bhupendra Pratap Singh, D.A.G. Ms. Mrinal Gopal Elker, AOR Mr. Abhimanyu Singh-g.a., Adv. Mr. Abhinav Shrivastava, Adv.
IMPORTANT POINT
House trespass, gang rape and murder – Age of appellant at the time of commission of crime along with other factors can certainly be taken into consideration as to whether death penalty needs to be commuted or not.
Headnote:
Protection of Children from Sexual Offenses Act, 2012 – Section 5(g)/6 – Indian Penal Code, 1860 – Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 [Bharatiya Nyaya Sanhita, 2023 – Sections 332(b), 64, 70, 66 and 103(1) read with Section 3(5)] – Criminal Procedure Code, 1973 – Section 354(3) [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 393(3)] – House trespass, gang rape and murder – Death sentence – In dying declaration, deceased clearly implicates appellant – Medical Officer, before commencement of dying declaration, has given endorsement regarding fit mental status of deceased to make declaration and at end of dying declaration again he has endorsed that deceased was in a fit state of mind – Written dying declaration is corroborated by oral dying declaration – There is no error in concurrent orders of Trial Judge and High Court convicting appellant for offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of IPC and Section 5(g)/6 of POCSO Act – There is nothing against behaviour of appellant in prison – His conduct in prison has been found to be satisfactory – Age of appellant at the time of commission of crime along with other factors can certainly be taken into consideration as to whether death penalty needs to be commuted or not – Appellant comes from a socio-economic backward stratum of society – He lost his mother and brother at tender age – Appellant and his family members do not have any criminal background – Appellant was of a tender age of 22 years when incident occurred – It cannot be said that appellant is a hardened criminal, who cannot be reformed – Confirmation of death penalty would not be justified – However, ordinary sentence of life i.e. 14 years imprisonment with remission would not meet ends of justice – Present case would fall in middle path – Order of conviction is maintained however death penalty awarded under Sections 376A and 302 IPC commuted to rigorous imprisonment for 20 years. (Paras 7, 9, 12, 14, 15, 16, 17, 18 and 19)
Facts of the case:
Present appeals arise out of the judgment and order dated 17.01.2019 passed by Division Bench of High Court of Madhya Pradesh at Jabalpur, dismissing appeal of the appellant and confirming judgment and order dated 20.08.2018 passed by Trial Judge thereby convicting appellant for offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of Indian Penal Code, 1860 and Section 5(g)/6 of Protection of Children from Sexual Offenses Act, 2012 awarding death penalty under Sections 376A and 302 IPC and life imprisonment under Section 376D of IPC and rigorous imprisonment for 10 years under Section 450 of IPC.
Findings of Court:
There is nothing against behaviour of appellant herein in prison. His conduct in prison has been found to be satisfactory. Reports further reveal that though not allotted any work, appellant is engaging himself in plantation of trees, cleaning the temple and surrounding area.
Result : Appeals allowed.
JUDGMENT :
B.R. GAVAI, J.
1. Heard Shri N. Hariharan, learned Senior Counsel for the appellant and Shri Bhupendra Pratap Singh, learned Deputy Advocate General appearing on behalf of the State of Madhya Pradesh.
2. These appeals arise out of the judgment and order dated 17.01.2019 passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, dismissing the appeal of the appellant and confirming the judgment and order dated 20.08.2018 passed by the First Additional Sessions Judge, Bina, District Sagar (hereinafter referred to as the “Trial Judge”) thereby convicting the appellant for offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of the Indian Penal Code, 1860 (for short ‘IPC’) and Section 5(g)/6 of the Protection of Children from Sexual Offenses Act, 2012 (for short, ‘POCSO’) awarding death penalty under Sections 376A and 302 IPC and life imprisonment under Section 376D of the IPC and rigorous imprisonment for 10 years under Section 450 of the IPC.
3. Shri Hariharan submits that the present case basically rests on the three dying declarations and the DNA report. He submits that the dying declarations are inconsistent. He further submits that as the time progressed there were improvements in the dying declaration. He therefore submits that in the present case the truthfulness of the dying declarations itself is doubtful and therefore the conviction could not be based on the said dying declarations. He further submits that the DNA report also points out towards the presence of a third person. In such an eventuality, the learned Senior Counsel submits that the order of conviction could not be sustained.
4. Shri Hariharan, in the alternative, submits that the present case is not a ‘rarest of the rare’ case, which would justify awarding death penalty. He further submits that, in the present case, the order convicting the appellant and imposing death penalty were done simultaneously. He submits that the learned Trial Judge also does not consider the balance between the mitigating circumstances and aggravating circumstances while awarding the death penalty. Learned Senior Counsel therefore submits that in the event this Court is not inclined to interfere with the finding of the conviction, in the facts and circumstances of this case and particularly taking into consideration the fact that the appellant lost his mother and brother at a tender age, the socio-economic background of the appellant and the age of the appellant at the time of commission of crime so also his conduct and behaviour in the prison entitle him for commutation of sentence.
5. Shri Bhupendra Pratap Singh, learned Deputy Advocate General (DAG), on the contrary, submits that the learned Trial Judge as well as the High Court, upon appreciation of the evidence, have correctly come to a finding that the present appellant is guilty for the offences committed. He therefore submits that no interference is warranted in the present appeals.
6. Insofar as the prayer made by the learned Senior Counsel for the appellant regarding commutation is concerned, the learned DAG for the respondent-State relies on the following judgments of this Court in the cases of Shivu and Another vs. Registrar General, High Court of Karnataka and Another, (2007) 4 SCC 713 : 2007 INSC 136, Purushottam Dashrath Borate and Another vs. State of Maharashtra, (2015) 6 SCC 652 : 2015 INSC 392 and Deepak Rai vs. State of Bihar, (2013) 10 SCC 421 : 2013 INSC 638 in order to contend that merely the age of the appellant cannot be taken into consideration. He further submits that the appellant taking advantage of the circumstances that the deceased was alone in the house has committed the heinous crime and therefore the present case would squarely fit in the category of ‘rarest of the rare’ cases. He submits that the psychological report would also show that there is no remorse expressed by the appellant. He therefore submits that taking into consideration all these
