Dec 19, 2024
By Apoorva
“The crime committed by the convict was diabolic in character. He enticed the innocent child by tempting him with ice-cream and brutally sodomized and murdered the four-year old. The appellant also mercilessly strangulated the deceased. The post-mortem report clearly indicated that death was due to asphyxia by throttling”. ...Supreme Court: In a criminal appeal filed by the appellant (convict) convicted for the offences of kidnapping, sexual assault and murder of a four-year-old child, the three Judge bench of B.R. Gavai, Aravind Kumar and K. V. Viswanathan*, JJ. while maintaining the conviction under Sections 302, 364, 377 of the Penal Code, 1860 (‘IPC’) and Sections 4 and 6 of Protection of Children from Sexual offences Act, 2012 (‘POCSO Act’), set aside the sentence of death for the offence under Section 302 and substitute the same with that of rigorous imprisonment for a period of 25 years without remission. Further, the Court ordered that the sentence imposed for offences under Section 364 IPC (10 years S.I. and Rs. 10,000/- fine) and Section 6 of the POCSO Act (life imprisonment and Rs.10,000/- fine) to run concurrently with the sentence of rigorous imprisonment for a period of 25 years without remission. The convict stood trial for the offences of kidnapping, sexual assault and murder of a four-year-old child and was convicted and sentenced to death by the Trial Court. The Gujarat High Court also confirmed the conviction and sentence of death imposed on him for the offences punishable under Sections 302, 364, and 377 of IPC and Sections 4 and 6 of POCSO Act. Aggrieved, the convict filed the present appeal. Perusing the Postmortem report of the minor boy, the Court noted that deceased had a homicidal death and said that the only question that arises is whether there is any evidence against the convict to confirm his conviction for the offences charged. The Court noted that the convict’s medical examination revealed that there were injury marks on his genitals. The Court mentioned that the present case rests on circumstantial evidence.
The Court approached the case at hand, with the five golden principles involved with circumstantial evidence.
Circumstance No. 1: The appellant last seen with the deceased
The Court reiterated that if the accused is last seen with the deceased and particularly in a case of this nature when the time gap between the last seen stage and occurrence of death is so short, the accused must offer a plausible explanation as to how he parted company with the deceased and the explanation offered must be satisfactory. The Court said that Section 106 of the Evidence Act mandates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Thus, if an accused fails to offer an explanation, he fails to discharge the burden cast upon him under Section 106 and if he fails to offer a reasonable explanation that itself provides an additional link in the chain of circumstances.2
Circumstance No. 2: Found in the vicinity of the scene of crime at about the time of crime:
The Court said that the presence of the convict at the scene of crime in the afternoon in the background of the evidence of last seen of the witnesses, is a clear link in the chain of circumstances which point to the guilt of the convict.
Circumstance No. 3: Injury on the private parts of the accused
The Court noted that the Doctor deposed that there was injury on the genitals of the convict. The certificate also reveals that there were abrasions on the prepuce of the convict. The abrasions in the prepuce of the convict were there even two days after the incident. Considering the overall facts, the Court accepted this circumstance as an additional link in the chain of circumstances.
Circumstance No. 4: Conduct under Section 8 of the Evidence Act
Irrespective of the admissibility of the discovery, and irrespective of the admissibility of the recovery of the clothes of the deceased on the statement of the accused, the Court concluded that the conduct of the convict in leading the investigation team and the panchas and pointing out where the apparel of the deceased was hidden would be admissible. The Court took note of A.N. Venkatesh v. State of Karnataka (2005) 7 SCC 714, wherein it was held that by virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not. Thus, the Court took this as an additional link in the chain of circumstances.
Circumstance No. 5: Matching of Blood Group
The Court found that the matching of blood groups between the convict and the deceased played a significant role in establishing the link between the two. The serological analysis revealed blood of group O on the clothes of the deceased, as well as on the small trouser, anal swab, and perianal swab, which were all connected to the convict, who also had blood group O. The Court was satisfied with the chain of custody of the evidence, confirming its integrity and the reliability of the findings. Even without relying on the discovery under Section 27, the Court found sufficient circumstantial evidence pointing to the guilt of the accused. The blood group match, in this context, was considered as an additional link in the chain of circumstantial evidence, strengthening the prosecution’s case and leading to conviction.
Presumption under the POCSO Act
The Court stated that it is clearly established in evidence that the deceased was subjected to a brutal sexual assault. The injury on the prepuce of the penis of the convict along with the matching of the blood group coupled with other circumstantial evidence clearly constitute foundational facts for raising presumption under Sections 29 and 30 of the POCSO Act. The Court mentioned that the manner in which the convict enticed the deceased child under the pretext of buying ice-cream despite being dissuaded by the aunt and without the consent of the lawful guardians also makes out an offence under Section 364 of IPC. The aggravated penetrative sexual assault clearly establishes offence under Section 377 of IPC and Sections 4 and 6 of the 29 POCSO Act.
The convict has not rebutted the presumption by adducing proof to the contrary. The Court was satisfied that the circumstances enumerated hereinabove are fully established; that the circumstances so established are consistent only with the hypothesis of the guilt of the convict and are not explainable by any other hypothesis; that the circumstances are conclusive in nature and further that the chain of circumstance is so complete as to point to the conclusion that the convict is guilty of the offences charged. Thus, the Court upheld the conviction as imposed by the Trial Court and confirmed by the High Court. The Court noted that the Trial Court has imposed the sentence of death, and the High Court has confirmed the same. After drawing up the balance sheet of the aggravating and mitigating circumstances to decide whether the case falls in the category of rarest of rare case, the Court examined whether the sentence of life imprisonment is foreclosed and the possibility of reformation is completely ruled out.
The Court said that “the crime committed by the convict was diabolic in character. He enticed the innocent child by tempting him with ice-cream and brutally sodomized and murdered the four-year old. The appellant also mercilessly strangulated the deceased. The post-mortem report clearly indicated that death was due to asphyxia by throttling”. On the mitigating side, the Court stated that the convict was 24 years of age when the incident happened; he had no criminal antecedents; he hails from a low socio-economic household. Further, he is diagnosed with moderate intensity psychotic features and intellectual disability and that he had in his early childhood contacted Tuberculosis Meningitis. Further, noting the conduct and behaviour of the convict in prison, the Court held that the present is not a case where it can be said that the possibility of reformation is completely ruled out. The option of life imprisonment is also not foreclosed.
The case does not fall in the category of rarest of rare case. Even though the case of the convict falls short of the rarest of rare category, considering the nature of the crime, the Court viewed that a sentence of life imprisonment which normally works out for 14 years would be grossly disproportionate and inadequate. Having regard to the nature of the offence, a sentence of imprisonment for a prescribed period without remission would alone be proportionate to the crime and also not jeopardize the public confidence in the efficacy of the legal system. Relying on Nawas Alias Mulanavas v State of Kerala (2024) SCC OnLine SC 315, the Court held that a sentence of imprisonment for a period of 25 years without remission would be ‘a just dessert’....
