2022 Supreme(SC) 118

SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, C.T. RAVIKUMAR, JJ.
Pappu – Appellant
Versus
The State of Uttar Pradesh – Respondent
Criminal Appeal Nos. 1097-1098 of 2018
Decided On : 09-02-2022

IMPORTANT POINT
Death sentence – Standardisation of sentencing would not be possible because no two criminal cases are identical and standardisation would leave no room for judicial discretion.

Headnote:

(A) Protection of Children From Sexual Offences Act, 2012 – Section 5/6 – Indian Penal Code, 1860 – Sections 376, 302 and 201 – Rape and murder of girl child and disappearance of evidence – Death sentence – Trial Court and High Court have concurrently recorded findings that prosecution has been able to successfully establish chain of circumstances leading to unmistakable conclusion that appellant is guilty of offences of rape and murder of victim child as also of concealing her dead body – Fundamental fact, as held proved against appellant is that deceased was lastly seen in company of appellant when he took deceased along with himself while shooing away other children – Appellant had failed to satisfactorily explain his whereabouts since he was last seen in company of deceased as also his knowledge of location of dead body – In process of appreciation of evidence, Trial Court and High Court have looked at crux of matter emerging from her testimony that child witness was indeed a witness to the fact that deceased child was last seen in company of appellant when he took her along towards farm – Discrepancies here or there do not establish that FIR was ante-timed or that dead body had already been seen by anyone before lodging of FIR – So-called inconsistencies do not take away substance of matter where prosecution has established fundamental facts leading to chain of circumstances pointing towards guilt of appellant – Discovery of dead body of victim child at information of appellant stands proved by evidence of relevant witnesses – Appellant failed to discharge burden cast upon him by Section 106 of Evidence Act – Foundational facts of offences alleged against appellant have been established – In given set of circumstances, it could safely be said that presumption contemplated by Section 29 POCSO came into operation – Medical and other scientific evidence has been consistent with prosecution case and then, defence version of enmity due to land dispute turns out to be false – Appellant was rightly convicted by Trial Court and his conviction has rightly been maintained by High Court. (Paras 21, 24.2, 24.3, 25, 26, 27.1, 28, 31, 32 and 37)

(B) Criminal Procedure Code, 1973 – Section 354(3) – Protection of Children From Sexual Offences Act, 2012 – Section 5/6 – Indian Penal Code, 1860 – Sections 376, 302 and 201 – Rape and murder of girl child and disappearance of evidence – Death sentence – Sustainability – Standardisation of sentencing would not be possible because no two criminal cases are identical and standardisation would leave no room for judicial discretion and additionally, standardisation of sentencing discretion is a policy matter belonging to sphere of legislation – Impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of ghastly crime and its abhorrent nature – It would have been immensely useful and pertinent if High Court, while taking up question of confirmation of death sentence and making several comments in regard to abhorrent nature of crime and its repulsive impact on society, would have also given due consideration to equally relevant aspect pertaining to mitigating factors before arriving at a conclusion that option of any other punishment than capital one was foreclosed – Heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when manner of its commission shows depravity and shocks conscience – But, appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct – When appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated – It would be unsafe to treat this case as falling in ‘rarest of rare’ category – Death sentence awarded to appellant for offence under Section 302 IPC is commuted into that of imprisonment for life, with stipulation that appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 (thirty) years – Other terms of sentences awarded to appellant, including amount of fine and default stipulations, also confirmed. (Paras 40.1.3, 42.1, 43.1, 45 and 46)

(C) Constitution of India – Articles 134 and 136 – Criminal Appellate Jurisdiction – Scope and ambit – Even when leave is granted, entire matter is not at large in such an appeal by special leave – Present appeals are by special leave in terms of Article 136 of Constitution of India – In such an appeal by special leave, where Trial Court and High Court have concurrently returned findings of fact after appreciation of evidence, each and every finding of fact cannot be contested nor such an appeal could be dealt with as if another forum for reappreciation of evidence – Assessment by Trial Court and High Court could be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to norms of judicial process leading to serious prejudice or injustice, this Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice but, such a course is adopted only in rare and exceptional cases of manifest illegality – It is not a matter of regular appeal. (Paras 19.2 and 20)

Facts of the case:

Present appeals by special leave are directed against the judgment and order dated 06.10.2017 in Reference No. 13 of 2016 and Capital Case No. 6601 of 2016 whereby, High Court of Judicature at Allahabad has affirmed the judgment and order dated 07/08.12.2016 in Sessions Case No. 414 of 2015, as passed by the Additional Sessions Judge, Court No. 2, Kushinagar; and, while upholding the conviction of appellant of offences punishable under Sections 376, 302, 201 of the Indian Penal Code, 18601 and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012, has confirmed the death sentence awarded to him for the offence under Section 302 IPC.

Findings of Court:

Even when present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of offences in question on the conscience of the society as a whole cannot be ignored. Thus, it appears just and proper to apply the course adopted in various cases involving the crimes of similar nature where, even while commuting capital punishment, this Court has provided for life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment for a substantial length of time.

Result : Appeals Partly allowed.