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SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, R. SUBHASH REDDY, SURYA KANT, JJ.
Ravishankar @ Baba Vishwakarma – Appellant
Versus
The State of Madhya Pradesh – Respondent
Criminal Appeal No.1523-1524 of 2019 [Arising out of Special Leave Petition(Crl.)Nos. 9254-9255 of 2019, Crl.M.P. Nos. 5704-5705 of 2017]
Decided on : 03-10-2019
(A) Indian Penal Code, 1860 – Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302 and 201 – Protection of Children from Sexual Offences Act, 2012 – Section 5 – Criminal Procedure Code, 1973 – Section 366 – Kidnapping, rape and murder of minor girl – Disappearance of evidence – Death sentence – DNA extracted from appellant matched with that on vaginal slide of deceased – Essentially, this is a case of circumstantial evidence which is supported by ocular and medico-scientific evidence – Prosecution has effectively proved that deceased was `last seen’ with appellant and on earlier occasions too was seen being enticed by appellant. DNA evidence using established STR technique has proved that appellant committed sexual intercourse with deceased – Deceased has been proven to be a minor using school records – Various injuries on her body along with signs of struggle proved that such crime was committed in a barbaric manner – Death has been established as being homicidal and caused by throttling and has been estimated during time when deceased was seen with appellant – A slipper have been recovered through appellant which has later been identified as belonging to deceased, giving finality to circumstantial chain – Appellant has been unable to offer any alibi and his defence merely rests on deflecting guilt on to family of deceased which is without a shred of evidence – No effective challenge has been made against any medical or DNA reports – There can be no second opinion against guilt of appellant and his consequential conviction – Findings of kidnapping, rape, resultant death and destruction of evidence have been proven beyond reasonable doubt, as evidenced by concurrent findings of Courts below. (Paras 10, 37 and 38)
(B) Criminal Procedure Code, 1973 – Section 354(3) – Indian Penal Code, 1860 – Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302 and 201 – Protection of Children from Sexual Offences Act, 2012 – Section 5 – Kidnapping, rape and murder of minor girl – Disappearance of evidence – Death sentence – It would be totally imprudent to lay down an absolute principle of law that no death sentence can be awarded in a case where conviction is based on circumstantial evidence – Such a standard would be ripe for abuse by seasoned criminals who always make sure to destroy direct evidence – In many cases of rape and murder of children, victims owing to their tender age can put up no resistance – In such cases it is extremely likely that there would be no ocular evidence – It cannot be said that in every such case notwithstanding that prosecution has proved case beyond reasonable doubt, Court must not award capital punishment for mere reason that offender has not been seen committing crime by an eye-witness – Such a reasoning, if applied uniformally and mechanically will have devastating effects on society which is a dominant stakeholder in administration of our criminal justice system – In present case, High Court while confirming death has observed that girl was found bleeding due to forcible sexual intercourse which fact is not supported by medical evidence – However, such erroneous finding has no impact on conviction under Section 376A of I.P.C. – A crucial witness for constructing last seen theory is partly inconsistent in cross-examination – Viscera samples sent for chemical testing were spoilt and remained unexamined – Although nails’ scrappings of accused were collected, no report has been produced to show that DNA of deceased was present – Use of such ‘residual doubt’ as a mitigating factor would effectively raise standard of proof for imposing death sentence benefit of which would be availed of not by innocent only – However, it would be a misconception to make a cost-benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent because alternative to death does not necessarily imply setting convict free – Present case falls short of ‘rarest of rare’ cases where death sentence alone deserves to be awarded to appellant – Cause of justice will be effectively served by invoking concept of special sentencing theory – Death penalty as awarded by courts below set aside and substituted with imprisonment for life with direction that no remission shall be granted to appellant and he shall remain in prison for rest of his life. (Paras 54, 60, 61, 62, 64 and 65)
(C) Indian Evidence Act, 1872 – Section 45 – Criminal Procedure Code, 1973 – Section 291 – DNA report – Evidentiary value – DNA test, even if not infallible, is nearly an accurate scientific evidence which can be a strong foundation for findings in a criminal case. (Para 38)
Facts of the case:
Appellant was tried for having committed offences under Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302 and 201 of Indian Penal Code and alternatively under corresponding provisions of the Protection of Children from Sexual Offences Act, 2012. Through judgment and order dated 19th July 2016, the Trial Court held the appellant guilty of kidnapping a 13 year-old girl, committing rape on her, killing her by throttling and thereafter destroying evidence by throwing her half naked body in a dry well. These crimes were held as being ‘rarest of the rare’ and the appellant was sentenced to death. Hovering between life and death, appellant assails the judgment dated 6th December, 2016 passed by High Court of Madhya Pradesh at Jabalpur whereby death reference made by Trial Court has been confirmed and appellant’s criminal appeal has been dismissed.
Findings of Court:
Death being irrevocable, there lies a greater degree of responsibility on the Court for an in depth scrutiny of the entire material on record. Still further, qualitatively, penalty imposed by awarding death is much different than in incarceration, both for convict and for State. Hence, a corresponding distinction in requisite standards of proof by taking note of ‘residual doubt’ during sentencing would not be unwarranted.
Result : Appeals allowed in part.
Key Points: - DNA evidence as strong foundation for findings and its role in proving guilt and age of victim; reliance on STR technique (!) (!) (!) - Case involves kidnapping, rape of a minor, throttling causing death, and destruction of evidence; convictions upheld with death sentence considered but later substituted with life imprisonment with no remission (!) (!) (!) - Court discusses the framework for death penalty: rarity, aggravated vs mitigating factors, and balance sheet approach; life imprisonment as default, death only in rare cases (!) (!) (!) - Concept of residual doubt at sentencing and its impact on capital punishment decisions; cautions against overreliance, and notes that residual doubt may justify mitigating considerations (!) (!) (!) (!) - Special sentencing theory allowing for substitution of death with life imprisonment or longer terms, under High Court/Supreme Court as appropriate, emphasizing expanded options beyond binary choice (!) (!) (!) (!) - Severity of crimes against minors and the potential for death penalty in extreme cases; acknowledges as possible but requires careful, case-specific weighing (!) (!)
JUDGMENT :
SURYA KANT, J.
Delay condoned.
Leave granted.
2. Hovering between life and death, the appellant assails the judgment dated 6th December, 2016 passed by the High Court of Madhya Pradesh at Jabalpur whereby the death reference made by the IIIrd Additional Sessions Judge, Gadarwara, District Narsinghpur (M.P.) has been confirmed and the appellant’s criminal appeal has been dismissed.
Background:
3. The appellant was tried for having committed offences under Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302 and 201 of the Indian Penal Code (for short IPC) and alternatively under the corresponding provisions of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). Through judgment and order dated 19th July 2016, the Trial Court held the appellant guilty of kidnapping a 13 year-old girl, committing rape on her, killing her by throttling and thereafter destroying the evidence by throwing her half naked body in a dry well. These crimes were held as being ‘rarest of the rare’ and the appellant was sentenced to death under Section 376-A of the Indian Penal Code, 1860 (I.P.C.). In terms of Section 366 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the Trial Court made a reference to the High Court for confirmation of the death sentence. The appellant also filed criminal appeal challenging this judgment and order passed by the Trial Court. The High Court on 6th December 2016, through a common order, both dismissed his appeal and confirmed the Trial Court’s death reference giving rise to this special leave petition.
4. At the outset, it must be mentioned that when the appellant’s special leave petition came up for hearing before a Three Judge Bench of this Court on 10th January, 2018, the following order was passed:
“Mr. Arjun Garg, learned counsel for the State prays for two weeks’ time to argue the matter on the conversion of sentence from death to life, as we are not inclined to interfere with the conviction.
xxx xxx xxx”
5. Thus, the limited issue which survives for our consideration is whether or not the appellant deserves to be imposed with the extreme sentence of death penalty?
6. As noted by this Court in Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551, that the mandate of not disclosing identities of the victims of sexual offences under Section 228A of I.P.C. ought to be observed in spirit even by this Court:
“2. We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the "IPC") makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as ' victim' in the judgment.”
We are thus not disclosing the victim’s name and instead are referring to her as the “deceased” throughout this judgment.
Relevant Facts:
7. The necessary facts are to the following effect: P.W.3 (Purushottam Kaurav – grandfather of the deceased), resident of village Baglai filed a report at the Police Station at Gotitoria on 22nd May, 2015 at about 4.00 p.m. giving information of the disappearance of his 13 year old granddaughter. The deceased and her 11 year old brother Harinarayan were children of the informant’s younger son, Satyaprakash and had been staying with their mother at the latter’s parental home in the neighbouring village, Chargaon, for the last four months. The deceased visite
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