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SUPREME COURT OF INDIA
N. V. RAMANA, DEEPAK GUPTA, INDIRA BANERJEE, JJ.
Dattatraya @ Datta Ambo Rokade – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NOS. 1110-1111 OF 2015
Decided On : 21-02-2019
Key Points: - The court discusses whether death penalty can be imposed or must be avoided in a case involving rape and murder of a five-year-old, emphasizing Bachan Singh framework and rarest of rare criteria (!) (!) (!) (!) (!) (!) . - It affirms that Section 235(2) CrPC requires the judge to hear the accused on the question of sentence after conviction, with an opportunity to present mitigating factors and evidence (!) (!) (!) . - The judgment analyzes the balance of aggravating and mitigating factors, including the accused’s age, potential for rehabilitation, prior conduct, and circumstances surrounding the crime, to determine if death is warranted or if life imprisonment is appropriate (!) (!) (!) (!) (!) . - Forensic evidence and accompanying confessions are considered in evaluating guilt and appropriate sentencing, particularly regarding whether the case falls within rarest of rare and whether there are mitigating circumstances (!) (!) (!) (!) . - The court ultimately reduces death sentence to life imprisonment, citing lack of fulfillment of rarest of rare criteria and mitigating considerations, while upholding guilt and certain convictions (!) (!) (!) .
JUDGMENT :
INDIRABANERJEE, J.
1. These appeals are against the final judgment and order dated 21/24/25-3-2014 of the High Court of Judicature at Bombay in Criminal Appeal No. 1202 of 2013/Criminal Confirmation Case No.6 of 2013 whereby the High Court has confirmed the conviction of the appellant under Sections 302, 376(2)(f), 377, 363, 364, 367 and 201 of the Indian Penal Code, as also under Sections 3, 4, 5(i) (l) and (m) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO’) and, interalia, affirmed the sentence of death imposed on the appellant.
2. The facts giving rise to these appeals are abhorrent. The Complainant and his wife being the second Prosecution Witness (PW) resided at Room No.3 in the ground floor of Om Sai building, near the Shivsena Office in Koparigaon, with their son aged 10 years and two daughters aged 7 years and 5 years respectively.
3. It is the case of the complainant that he and his wife (PW 2), used to go to work, leaving the three children at home. On 22.1.2013, PW 2 had to go to her paternal home to visit her father. When PW 2 returned home around 2.00 p.m. she found that her youngest daughter, being the victim, was not at home. Assuming that the victim might be playing somewhere nearby, PW 2 left for work at around 2.15 p.m. At around 4.30 to 5.00 p.m. PW 2 received a call on her mobile phone from one Avaghade Mama, informing her that the victim was not at home. PW 2 thereafter returned home, and started searching for the victim. She contacted the complainant as also her own parents on mobile.
4. Thereafter the complainant, PW 2, her mother and brother all started looking for the victim in Koparigaon, Vashi and Sanpada areas. As the victim could not be found, a missing report was lodged with the APMC Police Station.
5. When the complainant and his wife (PW 2) reached home at around 2.30 a.m. after frantic efforts to trace the victim, they found the victim lying nude and still in front of the door of their tenement, with no movement.
6. The complainant contacted the police from his mobile and told the police that his daughter (the victim) had been found lying still, without any movement. The complainant and PW 2 took the victim to the Navi Mumbai Municipal Corporation Hospital, where the Medical Officer examined the victim and declared her ‘brought dead’.
7. In the hospital the complainant noticed injuries on the body of victim. There was redness on both shoulders and both thighs of the victim, and laceration in the vagina and anus of the victim. Accompanied by the Inspector of APMC Police Station, who had come to the hospital for investigation, the complainant went to the APMC Police Station and lodged a First Information Report, on the basis of which Crime No.120/2013 was registered by the APMC Police Station.
8. An inquest of the body of the victim was conducted and photographs of the body were taken. There were injuries. The vagina and the anus of the deceased victim was lacerated and blood was oozing out. On 23.1.2013, Dr. Bhushan Jain, assisted by Dr. Prerna Thakur, conducted post mortem examination of the deceased victim. Dr. Bhushan Jain also noticed injuries on the private part, anus, below the eye lid and above the upper lip. He collected the blood of the deceased victim for DNA mapping and grouping and also collected her vaginal and anal swab for detection of sperms. The samples were kept for chemical analysis.
9. Dr. Bhushan Jain who prepared the post mortem report (Exhibit 48) opined that the cause of death of the victim was asphyxia due to smothering, associated with head injuries and sexual assault. Dr. Bhusan Jain deposed that all the five injuries were possible by repeated sexual acts and forceful penetration. He opined that all these injuries were sufficient to cause instant death in the ordinary course.
10. In the meanwhile, on 23.1.2013 investigation commenced. PW 26 was the Investigating Officer on 23.1.2013 at about 7.15 p.m., Panchnama (Ex.30)
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