1. Appeal against conviction and death sentence for rape and murder of a minor under IPC and POCSO. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 )
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2019 Supreme(SC) 1202
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
For the Appellant(s) :Gaurav Aggarwal, Anshu Raj Singh, Himanshu Agarwal, Pyoli, Advocates
For the Respondent(s):Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advocates
For the Respondent(s):Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advocates
The death penalty is reserved for "rarest of rare" cases. Courts must conduct a meaningful hearing under Section 235(2) CrPC to evaluate the balance of aggravating and mitigating circumstances, including the possibility of rehabilitation, before awarding the extreme penalty.
Headnote:(A) Indian Penal Code - Sections 302, 376(2)(f), 377, 363, 364, 367 and 201 - Protection of Children from Sexual Offences Act, 2012 - Sections 3, 4 and 5 - Code of Criminal Procedure, 1973 - Section 235(2) - Murder and rape of a minor - Quantum of sentence - Death sentence vs. Life imprisonment - "Rarest of rare" doctrine - Requirement of a real and effective hearing on the question of sentence to consider mitigating circumstances (Paras 99, 103, 140).
(B) Sentencing - Balance sheet of aggravating and mitigating circumstances - Life imprisonment is the rule and death sentence an exception - Court has a duty to elicit relevant facts involving mitigating circumstances even if the accused remains silent - Failure to provide a meaningful hearing under Section 235(2) CrPC constitutes a ground for commuting the death sentence (Paras 103, 108, 141).
Facts of the case:
A five-year-old girl was kidnapped, sexually assaulted, and murdered. The victim was found dead in front of her residence. A neighbor was suspected and later arrested. Forensic analysis established a DNA match between the semen found on the victim and the accused. An extra-judicial confession of the crime was made by the accused to his wife. The trial court convicted the accused and awarded the death sentence, which was subsequently confirmed by the first appellate court.
Findings of Court:
The court confirmed the conviction based on strong forensic evidence and the confession. However, it held that the trial court failed to conduct a proper hearing on the sentence under Section 235(2) CrPC, neglecting to consider mitigating factors such as the lack of premeditation, absence of a weapon, and the possibility of reformation.
Issues: Whether the case falls within the "rarest of rare" category justifying the death penalty and whether the mandatory procedure for hearing the accused on the question of sentence under Section 235(2) CrPC was effectively followed.
Ratio Decidendi: Death penalty should be imposed only in the "rarest of rare" cases where the alternative of life imprisonment is unquestionably foreclosed and there are no significant mitigating factors. A formal hearing under Section 235(2) CrPC is not a mere formality; the court must actively elicit facts about the offender's background and potential for rehabilitation to ensure a just balance between aggravating and mitigating circumstances.
Result: Death sentence modified to “life imprisonment” i.e., imprisonment for the natural life of the appellant without any remission.
Judgement Key Points
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 (!) (!) (!) .
What is the legality of imposing the death penalty in a case involving rape and murder of a child when considering whether the case falls within the rarest of rare category?
What is the proper procedure under Section 235(2) CrPC for hearing the accused on the question of sentence and ensuring a real, effective, and meaningful opportunity to place mitigating factors?
What factors must be weighed to determine whether life imprisonment or death is appropriate in a case of child rape and murder, including mitigating circumstances and possibilities of reform or rehabilitation?
Legal Category Hierarchy
-
crime and sentencing
- offences against the person
- offences against children
-
sentencing
- death sentence (Para 1, 88, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141)
- life imprisonment (Para 130, 143, 144, 145)
- remission of sentence (Para 144, 145)
- practice and procedure
-
constitutional law
- right to life (article 21) (Para 107)
Table of Contents
2. Accused argued case not rarest of rare, ineffective defense, lack of effective hearing under Section 235(2) CrPC. (Para 98 , 117 , 118 )
3. Court upheld conviction based on forensic evidence and confession, but commuted death sentence due to lack of premeditation and flawed sentencing hearing. (Para 86 , 92 , 93 , 94 , 95 , 96 , 113 , 114 , 115 , 116 , 117 , 118 , 119 , 120 , 121 , 122 , 123 , 124 , 125 , 126 , 127 , 128 , 129 , 130 , 131 , 132 , 133 , 134 , 135 , 136 , 137 , 138 , 139 , 140 , 141 , 142 )
4. Death sentence only in rarest of rare cases after effective hearing under Section 235(2) CrPC, considering mitigating circumstances and possibility of reformation. (Para 99 , 100 , 101 , 102 , 103 , 104 , 105 , 106 , 107 , 108 , 109 , 110 , 111 , 112 , 138 , 140 , 143 )
5. Conviction upheld, death sentence commuted to life imprisonment till natural death with no remission. (Para 144 , 145 )
6. What constitutes the 'rarest of rare' cases for imposition of death sentence?
The case must clearly fall within 'rarest of rare' and alternative punishment of life imprisonment must be unquestionably foreclosed, with mitigating circumstances given full weightage. (Para 99 , 100 , 109 )
7. What is required for an effective hearing under Section 235(2) CrPC before imposing death sentence?
The court must give the accused a real opportunity to present mitigating evidence, elicit relevant facts even if the accused is silent, and specifically indicate that death penalty is being considered. (Para 103 , 108 , 139 , 140 )
8. Can death sentence be imposed when there is no premeditation and no evidence that the accused cannot be reformed?
No, unless the court finds that the accused is beyond reformation and would be a continuing threat to society, after considering the possibility of rehabilitation. (Para 107 , 109 , 138 )
9. What is the appropriate sentence when death sentence is not warranted for rape and murder of a minor?
Life imprisonment for natural life with no remission may be imposed, considering the heinous nature of the crime but lack of rarest of rare characteristics. (Para 143 , 144 , 145 )
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.3
