The conviction was based on circumstantial evidence, with DNA and witness testimonies establishing the accused's guilt, affirming the death sentence as the case fell within the rarest of rare category.

JUDGMENT :

(Sandeep Mehta, J.)

1. These appeals assail the judgment and order dated 28th February, 2018 passed by the Division Bench of the High Court of Kerala at Ernakulam in Criminal Appeal No. 1452 of 2013 and Death Sentence Reference No. 3 of 2013¹[Hereinafter, being referred to as D.S.R. No. 3 of 2013]. The Death Sentence Reference and the Criminal Appeal arose out of the judgment dated 31st July 2013 passed by the Court of Sessions Judge, Manjeri²[Hereinafter being referred to as ‘trial Court’] in Sessions Case No. 487 of 2012.

2. By the aforesaid judgment, the learned trial Court found the appellant (the sole accused) guilty of the offences punishable under Sections 302 and Section 376 of the Indian Penal Code, 1860³[Hereinafter being referred to as ‘IPC’] and sentenced him as follows:

(i). Under Section 302 IPC: Death sentence (subject to the confirmation by the High Court)

(ii). Under Section 376 IPC: Rigorous Imprisonment for 7 years and a fine of Rs. 1,000/- (in default to undergo Rigorous Imprisonment for two months). [This imprisonment was allowed to be set off under Section 428 of the Code of Criminal Procedure, 1973⁴[Hereinafter being referred to as ‘CrPC’]]

3. Being aggrieved by his conviction and sentence awarded by the learned trial Court, the accused preferred Criminal Appeal No. 1452 of 2013 before the High Court. Since the trial Court awarded capital punishment to the accused appellant, the matter was referred to the High Court under Section 366 CrPC for confirmation of the death sentence vide D.S.R. No. 3 of 2013. Both D.S.R. No. 3 of 2013 and Criminal Appeal No. 1452 of 2013 were decided by the High Court vide common impugned judgment dated 28th February 2018 whereby, the Criminal Appeal was dismissed, and the Death Sentence Reference was allowed confirming the death sentence awarded to the accused. Being aggrieved, the accused appellant has filed the present appeals by way of special leave.

4. This Court vide order dated 4th September, 2018, stayed the execution of death sentence awarded to the accused appellant.

5. During the pendency of these appeals, the appellant passed away on 16th January 2024. An application was submitted by the legal heirs of the appellant before this Court under Section 394(2) CrPC for the continuation of the present appeals to wash off the stigma attached to the accused appellant and his family which was allowed vide order dated 1st February, 2024.

6. Brief facts relevant and essential for the disposal of these appeals are as follows: -

6.1 The prosecution story in brief is that on 4th April, 2012, at about 6:30 am, the child victim aged about 9 years was proceeding from her house to the Madrassa situated at Ponnamkallu in Amarambalam Village. On the way to the Madrassa, she went to the house of the accused which was situated on the side of the panchayat road at Ponnamkallu, in search of her friend who is the daughter of the accused so as to go to the Madrassa together.

6.2 On seeing the child victim all alone, the accused who was also alone in the house, committed rape upon her in a room in his house at around 6:45 am, and after that, he strangled the child victim with a shawl and smothered her with his hands which lead to the death of the victim.

6.3 It is the case of the prosecution that the accused, with the intention to destroy evidence, concealed the dead body of the victim beneath a cot inside the bedroom in the said house. Thereafter, the accused shifted the victim’s dead body to the bathroom attached to the said house. He also attempted to dispose of the dead body in the septic tank situated at the north-eastern corner of the house as the stones from under the slab of the septic tank were found removed.

6.4 When the victim could not be found anywhere despite frantic efforts to trace her out, a written complaint⁵[Exhibit P-1] came to be submitted by complainant-Salim (PW-1) at the Nilambur Police Station on 4th April, 2012 at 7:00 pm on the basis of which an FIR No. 308 of 2012⁶