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CHHATTISGARH HIGH COURT
Sanjay K. Agrawal and Rajani Dubey, JJ.
In reference of State of
Chhattisgarh and Anr. – Applicants
versus
Shekhar Korram and Anr. – Non-applicants
Criminal Reference No.1 of 2021 and Criminal Appeal No.1270 of 2021
Decided on 13.6.2022
(A) Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 363, 366, 302, 376AB and 201 – Criminal Procedure Code, 1973 – Section 53-A – Kidnapping, sexual assault and murder of girl child – Disappearance of evidence – Death sentence – DNA on vaginal swabs of deceased was found to be matching with DNA sample extracted from blood of appellant / accused – Appellant kidnapped deceased victim with intent to commit illicit intercourse with her as offence of sexual assault has been found proved by prosecution which satisfies requirement of Section 366 of IPC – DNA report deserves to be accepted as bonafide evidence unless it is absolutely dented by defence – Theory of last-seen together has been found proved by Trial Court – Dead body of deceased victim was found from house of appellant pursuant to his disclosure statement – As such, circumstances have firmly been proved by prosecution – Judgment of conviction affirmed. (Paras 22, 28, 29, 36, 42, 46, 47 and 48)
(B) Indian Penal Code, 1860 – Sections 363, 366, 302, 376AB and 201 – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Criminal Procedure Code, 1973 – Sections 354(3) and 366 – Kidnapping, sexual assault and murder of girl child – Disappearance of evidence – Death sentence – Rarest of rare case – Trial Court has convicted appellant and sentenced him to death on same date – Trial Court has not taken into consideration probability of appellant to be reformed and rehabilitated and has only taken into consideration crime and manner in which it was committed and has not given effective opportunity of hearing on question of sentence to appellant – No evidence was brought on record on behalf of prosecution to prove to court that appellant cannot be reformed or rehabilitated, by producing material about his conduct in jail and no opportunity of hearing was given to appellant to produce evidence in that respect – At the time of offence he was aged about 24 years and he belongs to tribal community and his chances of being reformed or rehabilitated cannot be ruled out – This is not the rarest of rare case in which major penalty of sentence of death awarded has to be confirmed – Imprisonment for life would be completely adequate and would meet ends of justice – Sentence of death commuted to life imprisonment by maintaining fine amount. (Paras 54 and 55)
(C) Criminal Law – Circumstantial evidence – In a case where prosecution relies upon circumstantial evidence, it must not only prove circumstances but should link them in such a fashion so as to form an unending chain i.e. guilt of accused – But if there is any chance of accused being innocent or crime has been committed by some other person, then accused has to be given benefit of doubt and on the basis of circumstantial evidence, he cannot be convicted. (Para 39)
Result: Appeal Partly allowed.
JUDGMENT (C.A.V.)
Sanjay K. Agrawal, J.—The appellant herein namely Shekhar Korram has been awarded with death sentence by the learned Additional Sessions Judge (Fast Track Special Court – POCSO), Rajnandgaon in Special Criminal (POCSO) Case No.50/2020 vide judgment dated 13-9-2021 after having found him guilty for offence punishable under Sections 363, 366, 302 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) and also under Section 201 of the IPC. He has been sentenced to death by hanging under sub-section (5) of Section 354 of the CrPC. Conviction and sentences imposed upon the appellant are as follows:—
| Conviction | Sentence |
| Section 363 of the IPC of ? 5,000/-, | RI for seven years and fine in default, additional RI for one year |
| Section 366 of the IPC ? 5,000/-, | RI for ten years and fine of in default, additional RI for one year |
| Section 302 of the IPC and Section 6 of the POCSO Act | Death sentence (to be hanged till death) |
| Section 201 of the IPC fine of ? 5,000/-, | RI for seven years and in default, additional RI for one year |
2. The learned Additional Sessions Judge in exercise of power conferred under Section 366 of the CrPC after passing the sentence of death submitted the proceedings to this Court for its confirmation and this is how this death reference is before us for consideration along with the appeal preferred by the accused/appellant herein being Cr.A.No.1270/2021.
3. The prosecution case as unfolded during the course of trial is as under:—
Admitted facts/prosecution case, in brief:—
3.1. Case of the prosecution, in brief, is that on 22-8-2020 Omprakash @ Prakash Yadav (PW-1) lodged a complaint in Police Outpost Chikhli, Police Station City Kotwali, Rajnandgaon that his minor daughter aged about 3 years 6 months went missing and on that basis, Crime No.0/2020 was recorded for the offence punishable under Section 363 of the IPC vide Ex.P-38 by Police Outpost Chikhli, District Rajnandgaon and on the same day i.e. 22-8-2020, Police Outpost Chikhli has prepared a missing panchnama questionnaires under the prescribed format on the basis of the complaint made by Omprakash vide Ex.P-2. The first information report registered as Crime No.0/2020 (Ex.P-38) in Police Outpost Chikhli was later on transferred to Police Station City Kotwali, Rajnandgaon and registered as Crime No.382/2020 vide Ex.P-10. on the same day, i.e. 22-8-2020 at about 23:25 hours, information regarding murder of the missing minor girl has been received by the police and the police reached to the crime spot and prepared dehati morgue intimation vide Ex.P-11. The police also prepared morgue intimation regarding murder of minor girl vide Ex.P-39 and thereafter, took up the matter for investigation and prepared naksha panchnama of the crime spot vide Ex.P-4.
3.2. During investigation, the appellant was apprehended and he confessed to have abducted the deceased minor victim and thereafter committed sexual assault upon her and then killed her by smothering. The police on suspicion and on information given by Narad Sinha (PW-2) and Bhuneshwari (PW-10), arrested the appellant/accused and recorded his memorandum statement under Section 27 of the Indian Evidence Act in shape of Ex.P-14. Pursuant to the memorandum disclosure statement of the appellant / accused, dead body of the deceased victim and pillow cover used in the crime were recovered vide Exs.P-15 & P-16. Further, underwear of the accused was also seized at his instance vide Ex.P-17. Pursuant to the memorandum statement of the appellant / accused, dead body of the deceased minor girl was recovered from the house of the appellant / accused on being disclosed by the accused / appellant and dead body was identified by her father Omprakash (PW-1) vide dead body identification panchnama Ex.P-5. Thereafter
Life sentence is rule and death sentence is an exception.
Circumstantial evidence, particularly the 'last seen' principle, can suffice for conviction in rape and murder cases yet demands rigorous scrutiny for reliability.
(1) Constitutional guarantees of equality before law, protection of life and personal liberty, protection in respect of conviction, and protection against arrest and detention, do not expand into a c....
The imposition of the death penalty requires the statutory provision of special reasons, and a balancing of aggravating and mitigating circumstances must be conducted.
For conviction under circumstantial evidence, the complete chain implicating guilt must exclude reasonable doubt of innocence.
(1) Evidence is only to be weighed and not to be counted – It is essentially, for prosecution to decide as to how many witnesses are to be examined to establish its case on any particular point.(2) D....
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