| Headnote |
Penal Code, 1860 – ss.302, 376 and 201 – Murder – Rape – Co-accused (now deceased) using borrowed school van, picked up a 10-year old girl and her 7-year old brother who were waiting to go to school – He thereafter picked up his friend (accused-appellant) from his house – Girl child was raped and sodomised – Both children were administered poison (cow dung powder) mixed in milk – However, they spat out the substance and only ingested a small portion – Since poisoning did not work, the children were thrown into a nearby canal, causing their death by drowning – Coaccused was shot dead by the police in an encounter – Appellant recorded confession before Magistrate u/s.164 CrPC which was partially retracted subsequently – Prosecution examined forty-nine witnesses including persons who witnessed abduction, purchase of milk and cow dung powder and those who saw children in custody of the accused persons at various places – Medical and forensic evidence proved drowning and rape as well as injuries on appellant’s body – Trial Court held appellant guilty u/ss. 120-A, 364-A, 376, 302, 302 r/w 34 and 201 – High Court set aside appellant’s conviction u/ss.120-B and 364-A, but confirmed conviction u/ss.376, 302, s.302 r/w ss.34 and 201 – On appeal, conviction affirmed by Supreme Court – Held (per R.F. Nariman, J. [for himself and Surya Kant, J.]): The fact that appellant brutally raped the 10 year old girl was corroborated not only by his confessional statement but also by DNA test which found appellant’s pubic hair on panty of the girl – Appellant admitted that he purchased cow dung powder (poison) and administered to the children – Thereafter, he and the other accused threw the children in the canal – The entire chain of events was made out and prosecution proved its case beyond reasonable doubt – Courts below rightly convicted the appellant of rape and murder – Held (per Sanjiv Khanna, J.): Prosecution case that hair belonging to the appellant was found in the van is accepted, but forensic report that this was the pubic hair of appellant is debatable – Except the aforesaid, the prosecution proved the case beyond doubt – Confessional statement of appellant u/s. 164 Cr.P.C. was rightly accepted – Conviction of appellant u/ss. 302, 376 and 201 IPC upheld and maintained.Sentence / Sentencing – Death penalty – Murder – Rape – Appellant and a co-accused (now deceased) – Confession of appellant recorded before Magistrate u/s.164 CrPC which was partially retracted subsequently – Trial Court held appellant guilty u/ss. 120-A, 364-A, 376, 302, 302 r/w 34 IPC and 201 and awarded life sentence u/s.376 IPC and death sentence u/s.302 IPC – High Court set aside appellant’s conviction u/ss.120-B and 364-A, but confirmed conviction and sentences u/ss.376, 302, s.302 r/w ss.34 and 201 – Death sentence also confirmed by High Court – On appeal before Supreme Court, conviction unanimously affirmed, however, death sentence upheld by majority – Held (per R.F. Nariman, J. [for himself and Surya Kant, J.]) (Majority judgment): A young 10 year old girl was first horribly gangraped after which she and her brother aged 7 years were done away with while they were conscious by throwing them into a canal which caused their death by drowning – Crime committed was cold blooded and in the most heinous fashion possible – No remorse shown by Appellant at all – That Appellant made a confessional statement would not, on facts, mean that he showed remorse for committing such a heinous crime – He did not stand by this confessional statement, but falsely retracted only parts of the statement which implicated him of both the rape of the young girl and the murder of both her and her little brother – Consequently, death sentence confirmed – Held (per Sanjiv Khanna, J.) (Minority judgment): Appellant’s partial retraction of confession was rightly disbelieved – However, retraction by itself should not be treated as absence of remorse or repentance – A thought of doubt and attempt to retract had surfaced on account of belief that the sense of remorse, repentance and forgiveness would not be appreciated and given due regard, cannot be ruled out – Benefit in this regard must go to appellant – Other mitigating factors in favour of appellant are his young age, he was 23 years of age at the time of occurrence and he belonged to a poor family – He has aged parents and is a first-time offender – Further, appellant was not initially involved and was not the mastermind – On balancing aggravating and mitigating circumstances, present case does not fall under category of ‘rarest of rare’ case – Not a case where appellant should be given death penalty – It would fall within special category of cases, where appellant should be directed to suffer sentence for life i.e. till his natural death, without remission / commutation u/ss.432 and 433 CrPC – Code of Criminal Procedure, 1973 – ss.432 and 433. Sentence / Sentencing – Life imprisonment, without right to remission – Held (per Sanjiv Khanna, J.): To award death penalty, the Court must balance out aggravating circumstances by giving weightage to mitigating circumstances and decide whether punishment of life imprisonment is foreclosed – Then and then alone, the case would fall under ‘rarest of rare’ category – Where life imprisonment is considered to be disproportionate or inadequate, then the Court may direct sentence for life imprisonment, without any right to remission i.e. imprisonment for entire course of life with no recourse to remission, subject to the power that may be exercised u/Arts. 72 and 161 of the Constitution – Constitution of India, 1950 – Arts. 72 and 161.Words & Phrases – Punishment by death – Expression ‘rarest of rare’ – Meaning – Held (per Sanjiv Khanna, J.): Expression ‘rarest of rare’ literally means rarest even in the rare, i.e. a rarest case of an extreme nature – The expression and the choice of words, means that punishment by death is an extremely narrow and confined rare exception – The normal, if not an unexceptional rule, is punishment for life, which rule can be trimmed and upended only when the award of sentence for life is unquestionably foreclosed – Capital punishment is awarded and invoked only if the facts and material produced by the prosecution disdainfully and fully establish that the option of imprisonment for life will not suffice and is wholly disproportionate and therefore the case belongs to the ‘rarest of rare’ category |
