Supreme Court: In a case where a 3 year old girl was raped and strangulated to death, the 3-judge Bench of L. Nageswara Rao, B.R. Gavai* and B.V. Nagarathna, JJ., commuted sentence of capital punishment to life imprisonment.
The Fast Track Court, Raigarh had convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Penal Code, 1860 and Section 6 of the POCSO Act, 2012 and vide the same judgment and order, the appellant was sentenced to death for the offence punishable under Section 302 of the IPC. Subsequently, vide the impugned judgment and order, the High Court had confirmed the death penalty.
3 year Old Raped, Strangulated to Death
The victim, aged 3 years went missing on the unfortunate day and when she couldn’t be traced till evening a missing case was lodged. Later that day, the appellant himself came forward to claim that if he be permitted to conduct worship he could tell the whereabouts of the victim child. Accordingly, after worship the appellant stated that the child was inside a sack in the bushes near a pole beside the Amlibhauna road. On suspicion, the police was informed and during search the dead body of the victim soaked in blood and in a naked condition was found from the stated place.
On being interrogated, the appellant revealed that the previous day, he saw the victim girl who lived on the floor above his house coming downstairs, whom he persuaded and took her into his room, where he forcibly made physical relation with her and when the deceased started crying loudly, he pressed her mouth and nose with a pillow and murdered her by strangulating. He then wiped the blood and the ejaculated sperm smeared on his penis with a towel kept in the room, filled the dead body in a plastic sack of lentil by twisting her hands and legs and hid it in the stated place.
Whether guilt of the Appellant was proved beyond reasonable doubt
As the conviction was based on circumstantial evidence, the appellant submitted that the prosecution had utterly failed to establish the incriminating circumstances and in any case, failed to establish the chain of events, which lead to no other conclusion than the guilt of the accused.
Noticing the oral report of the victim being missing and the FIR that came to be registered, the Bench stated that the first circumstance that the victim went missing at around 10.00 am, and thereafter, they started searching for her has been proved beyond doubt. Further, corroborating statements of the parents of the victim and one of their neighbours that the appellant had claimed that the child could be traced by worship and subsequent recovery of materials used for performing the worship along with the recovery of victim from the place claimed by the appellant also proved the case against the appellant beyond reasonable doubts. Another circumstance against the appellant was the recovery of the black jeans half pant of the deceased from the dumping area as told by the appellant and the gamchha (towel) and pillow from the house of the appellant.
Applicability of the Section 27 of Evidence Act
On the contention that the memorandum of the appellant with regard to recovery of dead body was not admissible under Section 27 of the Evidence Act as the same was from an open place, accessible to one and all, the Bench stated that in State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370, it had been held that what is relevant is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If the place at which the article hidden is such where only the person hiding it knows until he discloses that fact to any other person, then it will be immaterial whether the concealed place is accessible to others.
Further, the High Court, after going through the photographs and video clips of the search had noted, “the recovery of dead body was made from a place which could not be said to be accessible to an ordinary person without prior knowledge as the body recovered was kept concealed in a gunny bag inside the shrubs situated at sufficient distance from the main road. In the statement under Section 313 CrPC, the accused/appellant failed to explain how he came to know that the deceased had been murdered and thrown in the shrubs after wrapping her in a gunny bag……..”
Hence, the Bench held that in any case, the recovery of the body on the information given by the appellant was duly proved by the memorandum of the appellant under Section 27 of the Evidence Act and the recovery panchnama. That apart, the oral testimony of PWs 1, 2, 3, 5 and 19 corroborated the same.
Speedy Trial and Accused’s Right to be properly heard
The appellant submitted that since the Raigarh District Bar Association had taken a resolution that no lawyer from the Bar would appear for him, it was difficult for him to engage a lawyer and the lawyer appointed by the Court also was not given sufficient opportunity to defend the case as the lawyer was appointed on 06-06-2016, immediately on the next day, the evidence of PWs 3 to 7 were recorded and the judgment and order of conviction along with sentence of death penalty was passed on 17-06-2016.
Opining that though a speedy trial is desirable, however, sufficient time ought to have been given to the counsel for the accused to prepare for the case after he was appointed, the Bench stated that even insofar as the award of sentence is concerned, some period ought to have been given between the date of conviction and the award of sentence, specifically when a death penalty was awarded. However, after scrutinizing the evidence in depth, the Bench denied the allegations that any prejudice was caused to the accused inasmuch as the witnesses had been cross-examined in detail by the lawyer appointed by the court.
Capital Punishment and Possibility of Accused being reformed
While elaborating whether a case falls within the category of the rarest of rare, the Supreme Court, in Mannan v. State of Bihar, (2019) 16 SCC 584, had held that the brutality, and/or the gruesome and/or heinous nature of the crime is not the sole criterion. It is not just the crime which the Court is to take into consideration, but also the criminal, the state of his mind, his socioeconomic background, etc. as awarding death sentence is an exception, and life imprisonment is the rule.
Noticing that the Trial Court had convicted the appellant and imposed death penalty on the very same day, the Bench opined that the Trial Court as well as the High Court had only taken into consideration the crime but they had not taken into consideration the criminal, his state of mind, his socioeconomic background, etc. Therefore, considering that the appellant was a young person, who was 23 years old at the time of commission of the offence, came from a rural background and his conduct in the prison had been found to be satisfactory and the fact that he had no criminal antecedents, the Bench held that it could not be said that there was no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative.
In the light of the above, the appeal was partly allowed. The judgment and order of conviction for the offences punishable under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC and Section 6 of the POCSO Act was upheld. However, the death penalty imposed on the appellant under Section 302 IPC was commuted to life imprisonment. [Lochan Shrivas v. State Of Chhattisgarh, 2021 SCC OnLine SC 1249, decided on 14-12-2021]
*Judgment by: Justice B.R. Gavai
Kamini Sharma, Editorial Assistant has reported this brief.
For the Appellants: Anand Grover, Senior Counsel appearing
For the State of Chhattisgarh: Nishanth Patil, Advocate