2019 Supreme(SC) 1100

SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, R. SUBHASH REDDY, SURYA KANT, JJ.
Ravi S/o Ashok Ghumare – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal Nos. 1488-1489 of 2018
Decided On : 03-10-2019

IMPORTANT POINTS
(1) Lack of motive would not be fatal to case of prosecution as sometimes human beings act irrationally and at spur of moment.
(2) Subsistence of capital punishment proves that there are certain acts which society so essentially abhors that they justify taking of most crucial of rights – right to life.
(3) Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases.
(4) Court cannot write off capital punishment so long as it is inscribed in statute book.

Headnote:

Per Surya Kant, J. (With R.F. Nariman, J. concurring)(Majority View)

(A) Protection of Children from Sexual Offences Act, 2012 – Section 5 – Indian Penal Code, 1860 – Sections 302, 363, 376 and 377 – Criminal Procedure Code, 1973 – Section 366 – Kidnapping, rape and murder of girl child – Death sentence – Victim child was subjected to forcible vaginal and anal/unnatural intercourse and she died of asphyxia due to throttling – Appellant was distributing chocolates to allure children near Temple on that day and around that time child went missing – Appellant had special knowledge as to in what circumstances victim child suffered those multiple injuries – Burden to prove that those injuries were not caused by him was on appellant alone in view of Section 106 of Evidence Act which he has miserably failed to discharge though evidence on record proves beyond doubt that victim child was in unlawful custody of appellant – There is unshakable scientific evidence which nails appellant from all sides – It is not the case of appellant that crime was committed by some other close relative of him – There is overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is appellant and he alone who is guilty of committing horrendous crime in this case – Conviction of appellant upheld. (Paras 22, 30, 34, 35 and 36)

(B) Criminal Law – Motive – Motive is not an explicit requirement under Indian Penal Code, though `motive’ may be helpful in proving case of prosecution in a case of circumstantial evidence – Lack of motive would not be fatal to case of prosecution as sometimes human beings act irrationally and at spur of moment – Case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions who have seen appellant committing crime, may be in part – Such an unshakable evidence with dense support of DNA test does not require definite determination of motive of appellant behind gruesome crime. (Para 37)

(C) Criminal Procedure Code, 1973 – Section 354 – Protection of Children from Sexual Offences Act, 2012 – Section 5 – Indian Penal Code, 1860 – Sections 302, 363, 376 and 377 – Kidnapping, rape and murder of girl child – Death sentence – Victim was barely a two-year old baby whom appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last – It’s a case where trust has been betrayed and social values are impaired – Unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality – Appellant meticulously executed his nefarious design by locking one door of his house from outside and bolting other one from the inside so as to deceive people into believing that nobody was inside – Appellant was in his full senses while he indulged in this senseless act – Appellant has not shown any remorse or repentance for gory crime – His deliberate, well-designed silence with a standard defence of `false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed – That being so, Court cannot write off capital punishment so long as it is inscribed in statute book – Death sentence affirmed – Appeals dismissed. (Paras 61, 62 and 63)

(D) Indian Evidence Act, 1872 – Section 45 – Criminal Procedure Code, 1973 – Section 291 – DNA report – Y-Chromosome Short Tandem Repeat Polymorphism (Y-STR) Analysis – Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as exculpatory evidence and is extensively relied upon in various jurisdictions throughout the world – Chances of degradation of `Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis – Although Y-STR does not distinguish between males of same lineage, it can be used as a strong circumstantial evidence to support prosecution case – Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. (Para 35)

(E) Criminal Law – Sentencing Policy – Object and purpose of determining quantum of sentence has to be `society centric’ without being influenced by a `judge’s’ own views, for society is biggest stake holder in administration of criminal justice system – Civic society has a `fundamental’ and `human’ right to live free from any kind of psycho fear, threat, danger or insecurity at hands of anti-social elements – Equally important is the stand-point of a `victim’ which includes his/her guardian or legal heirs – Sentencing Policy needs to strike a balance between two sides and count upon twin test of deterrent effect or complete reformation for integration of offender in civil society – Where Court is satisfied that there is no possibility of reforming offender, punishments before all things, must be befitting nature of crime and deterrent with an explicit aim to make an example out of evil-doer and a warning to those who are still innocent – Punishment is a reflection of societal morals – Subsistence of capital punishment proves that there are certain acts which society so essentially abhors that they justify taking of most crucial of rights – right to life. (Paras 50, 51 and 52)

Facts of the case:

Present appeals assail judgment dated 20th January, 2016 passed by High Court of Judicature at Bombay, Bench at Aurangabad, confirming death reference in Sessions Case No. 127 of 2012 decided by Additional Sessions Judge, Jalna, in which the appellant having been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code, has been awarded the sentence of death under Section 302, IPC along with sentence of rigorous imprisonment(s) of different durations with fine for rest of offences. Trial Court as well as High Court have concurrently held that case falls within the exceptional category of `rarest of the rare’ cases where all other alternative options but to award death sentence, are foreclosed.

Findings of Court:

We cannot forget legislative intent which resulted in amendments to POCSO, while dealing with offences against children. At the same time, even for imposing the death sentence, for cases arising out of provisions under POCSO Act, 2012, it is duty of courts to balance aggravating and mitigating circumstances.

Result : Appeals dismissed. (Majority View)