# 3 S.C.R. 34 ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE OF MAHARASHTRA

- **Citation:** [2014] 3 S.C.R. 34
- **Court:** Supreme Court of India
- **Decided:** 2014-02-20
- **Case number:** Criminal Appeal Nos. 1419-1420 of 2012
- **Bench:** K.S. Radhakrishnan, Vikramajit Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-34-anil-anthony-arikswamy-joseph-v-state-of-maharashtra-29593
- **Pages:** 30

## Headnote

PENAL qoDE, 1860: SS. 302, 377 and 201 - Sodomy,
buggery and bestiality - Murder - Minor aged 10 years
C subjected to carnal intercourse and then strangulated to death
- Conviction and death sentence - On appeal, held: Evidence
of prosecution witnesses in its entirety trustworthy and reliable
- Sister of accused categorically stated that she had heard the
cries of the victim-deceased coming from the room of accused
D during mid-night and she could not sleep tiff the cries
subsided - She had no axe to grind against her own brother
and was a trustworthy witness - School bag of the deceased
and pant was recovered from a box placed beneath cot in the
house of accused which indicated that deceased was in the
E company of the accused on the fateful night - DNA test also
proved that anal smear matched with the DNA profile of smear
stains, which also matched with the control blood sample of
the accused - Consent of a passive agent was not at all a
defence, he being a minor - Prosecution clearly established
F that, after subjecting the boy to Pederasty, he was strangulated
to death - Case u/ss.302, 377 and 201 /PC clearly made out
- Accused committed the crime at the age of 35 years and a
fully matured person - There was no mitigating circumstance
favouring him - There was nothing to show that he was under
G any emotional or mental stress - The offence was committed
only to satisfy his lust, in a perverted way -. The murder was
committed in an extremely brutal, grotesque, diabolical and
dastardly manner and the accused was in a dominating
position and the victim was an innocent boy - Life of a boy,
H
34
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
35
OF MAHARASHTRA
the only son of his mother, was taken away which pricks not A
only the judicial conscience but also the conscience of the
society - Incarceration of a further period of thirty years, without
remission, in addition to the sentence already undergone, will
be· an adequate punishment in the facts and circumstances
of the case, rather than death sentence - Sentence! B
Sentencing.
MEDICAL JURISPRUDENCE: Deoxyribonucleic acid,
or DNA - Evidentiary value of - Held: DNA is a molecule that
encodes the genetic information in all living organisms - DNA
genotype can be obtained from any biological material such C
as bone, blood, semen, saliva, hair, skin, etc. - Generally,
when DNA profile of a sample found at the scene of crime
matches with DNA profile of the suspect, it can generally be
concluded that both samples have the same biological origin
- DNA profile is valid and reliable, but variance in a particular D
result depends on the quality control and quality procedure
in the laboratory - Penal Code, 1860 - Evidence.
SENTENCE/SENTENCING:
Rarest of rare case - Held: R-R Test depends upon the
E
perception of the society that is "society-centric" and not
"Judge-centric': that is, whether the society will approve the
awarding of death sentence to certain types of crimes or not
- While applying that test, the court has to look into variety of
factors like society's abhorrence, extreme indignation and
F
antipathy of certain types of crimes like sexual assault and
murder of minor girls, intellectually challenged minor girls,
minors suffering from physical disability, old and infirm
women, etc. - In the instant case, offence u/s. 377 was fully
proved so also the offence u/s.302 - Indian society and also
G
the International society abhor pederasty, an unnatural sex,
i.e. carnal intercourse between a man and a minor boy or a
girl - When the victim is a minor, consent is not a defence,
irrespective of the views expressed at certain quarters on
consensual sex between adults.
· ·
H
36
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A
Reformation and rehabilitation - Determination of
sentence - Duty of courts - Held: It is the duty of the Court to
ascertain whether the accused would be a menace to the
society and there wol(ld be no possibility of reformation and
rehabilitation and the 'state is obliged to furn

## Text

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A
B
[2014) 3 S.C.R. 34
ANIL @ ANTHONY ARIKSWAMY JOSEPH
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1419-1420 of 2012)
FEBRUARY 20, 2014
[K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]
PENAL qoDE, 1860: SS. 302, 377 and 201 - Sodomy,
buggery and bestiality - Murder - Minor aged 10 years
C subjected to carnal intercourse and then strangulated to death
- Conviction and death sentence - On appeal, held: Evidence
of prosecution witnesses in its entirety trustworthy and reliable
- Sister of accused categorically stated that she had heard the
cries of the victim-deceased coming from the room of accused
D during mid-night and she could not sleep tiff the cries
subsided - She had no axe to grind against her own brother
and was a trustworthy witness - School bag of the deceased
and pant was recovered from a box placed beneath cot in the
house of accused which indicated that deceased was in the
E company of the accused on the fateful night - DNA test also
proved that anal smear matched with the DNA profile of smear
stains, which also matched with the control blood sample of
the accused - Consent of a passive agent was not at all a
defence, he being a minor - Prosecution clearly established
F that, after subjecting the boy to Pederasty, he was strangulated
to death - Case u/ss.302, 377 and 201 /PC clearly made out
- Accused committed the crime at the age of 35 years and a
fully matured person - There was no mitigating circumstance
favouring him - There was nothing to show that he was under
G any emotional or mental stress - The offence was committed
only to satisfy his lust, in a perverted way -. The murder was
committed in an extremely brutal, grotesque, diabolical and
dastardly manner and the accused was in a dominating
position and the victim was an innocent boy - Life of a boy,
H
34
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
35
OF MAHARASHTRA
the only son of his mother, was taken away which pricks not A
only the judicial conscience but also the conscience of the
society - Incarceration of a further period of thirty years, without
remission, in addition to the sentence already undergone, will
be· an adequate punishment in the facts and circumstances
of the case, rather than death sentence - Sentence! B
Sentencing.
MEDICAL JURISPRUDENCE: Deoxyribonucleic acid,
or DNA - Evidentiary value of - Held: DNA is a molecule that
encodes the genetic information in all living organisms - DNA
genotype can be obtained from any biological material such C
as bone, blood, semen, saliva, hair, skin, etc. - Generally,
when DNA profile of a sample found at the scene of crime
matches with DNA profile of the suspect, it can generally be
concluded that both samples have the same biological origin
- DNA profile is valid and reliable, but variance in a particular D
result depends on the quality control and quality procedure
in the laboratory - Penal Code, 1860 - Evidence.
SENTENCE/SENTENCING:
Rarest of rare case - Held: R-R Test depends upon the
E
perception of the society that is "society-centric" and not
"Judge-centric': that is, whether the society will approve the
awarding of death sentence to certain types of crimes or not
- While applying that test, the court has to look into variety of
factors like society's abhorrence, extreme indignation and
F
antipathy of certain types of crimes like sexual assault and
murder of minor girls, intellectually challenged minor girls,
minors suffering from physical disability, old and infirm
women, etc. - In the instant case, offence u/s. 377 was fully
proved so also the offence u/s.302 - Indian society and also
G
the International society abhor pederasty, an unnatural sex,
i.e. carnal intercourse between a man and a minor boy or a
girl - When the victim is a minor, consent is not a defence,
irrespective of the views expressed at certain quarters on
consensual sex between adults.
· ·
H
36
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A
Reformation and rehabilitation - Determination of
sentence - Duty of courts - Held: It is the duty of the Court to
ascertain whether the accused would be a menace to the
society and there wol(ld be no possibility of reformation and
rehabilitation and the 'state is obliged to furnish materials for
B and against the possibility of reformation and rehabilitation
of the accused.
CODE OF CRIMINAL PROCEDURE, 1973: s.235(2) rl
w s.354(3) - Death sentence - Held: When culpability
assumes the proportions of depravity, the Court has to give
C special reasons within the meaning of s.354(3) for imposition
of death sentence - Legislative policy is that when special
reasons do exist, as in the instant case, . the Court has to
discharge its constitutional obligations and honour the
legislative policy by awarding appropriate sentence, that is the
D will of the people - Sentence/Sentencing.
The prosecution case was that the accused-appellant
subjected a minor boy aged 10 years to carnal
intercourse and then strangulated him to death. The trial
E court convicted him under Sections 302, 377 and 201 IPC
and passed death sentence. The High Court dismissed
the appeal and confirmed the death sentence. The instant
appeals were filed challenging the order of the High
Court.
F
Disposing of the appeals, the Court
HELD: 1. The evidence of PW2,.PW3, PWS and PW9
in its entirety was trustworthy and reliable. The
prosecution succeeded in establishing its case beyond
G reasonable doubt that the deceased was last seen in the
company of the accused and that the findings recorded
by the trial court and affirmed by the High Court called
for no interference. PW1 and PW6 were examined by the
prosecution to prove the recovery of the pant as well as
H school bag of the deceased. School bag was recovered
ANIL@ ANTHONY ARIKSWAMY JOSEPH v. STATE
37
OF MAHARASHTRA
from a box which was placed beneath the cot in the A
house of the accused. The school bag contained books
and note books which bore the name of the deceased.
The pant and the school bag along with, books contained
therein clearly indicated that the boy was in the company
of the accused on the fateful day. Consequently, the B
presence of the deceased in the room of the accused was
clearly established and the finding recorded by the trial
court as well as the High Court on that ground also called
for no interference. [Paras 11, 12) [51-G-H; 52-A-D]
2. PW4, the doctor who conducted the post-mortem C
examination of dead body of the deceased stated that all
the internal injuries corresponded to external injuries and
they were ante-mortem and were ordinarily sufficient to
cause death. PW4 also opined that there was possibility
of carnal intercourse with the deceased, though the D
cause of death was head injury. As per PW4, the DNA
report indicated that anal smear of the deceased gave ·a
mixed DNA profile which matched with semen on half
pant and blood of victim. PW4 was also shown another
report of DNA, which was in respect of the control sample E
blood of the accused and stated that DNA profile of blood
matched with DNA profile of semen found in the anus of
the deceased. Further, he also stated that injury no$:1, 3,
4 and 5 were possible by hard and blunt object while
injury no.2 was caused by sharp cutting edge and injury F
no.6 was caused by hard and rough object. Facts clearly
indicated that the fatal injuries were caused to silence him,
after satisfying lust in a barbaric manner. Attempts were
made to destroy the evidence which were also proved.
PW4 also categorically stated in respect of injury no.1 that G
it should read as anus dilated and appeared patalous,
perianal margin anal mucosa appear inflamed, though no
evidence of tear or foreign body. [Paras 13, 14] [52-E; 53F-H; 54-A-B]
H
38
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A
3. PW5, the Assistant Chemical Analyzer, Forensic
Science Lab stated that Exh.1 was a DNA profile of the
accused and Exh.5 anal smear was of the deceased,
which gave mixed profile. She stated that she conducted
two tests, one nuclear Short Tandem Repeats (STR) and
B
Y Short Tandem Repeats (YSTR). PW5, in her report,
stated that she obtained blood samples of the accused
and matched the profile obtained from that blood with the
profile of Exhs.1 and 5 and that the profiles were
matching. The evidence of PW4 and PW5 read with
C
evidence of PW12, PW15 and PW16 clearly showed that
the DNA test was successfully conducted and that the
anal smear matched with the DNA profile of semen stains
which were found on the pant of the accused and were
matched with the control blood sample of the accused
0
as well as blood sample of the deceased. [Paras 15, 16)
[54-C-F; 55-A-B]
E
F
4. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms.
DNA genotype can be obtained from any biological
material such as bone, blood, semen, saliva, hair, skin,
etc. Now, for several years, DNA profile has also shown
a tremendous impact on fcrensic investigation.
Generally, when DNA profile of a sample found at the
scene of crime matches with DNA profile of the suspect,
it can generally be concluded that both samples have the
same biological origin. DNA profile is valid and reliable,
but variance in a particular result depends on the quality
control and quality procedure in the laboratory. PW5
stated that since 1994 she was working as Assistant
G Chemical Analyzer and has analyzed thousands of
samples including DNA test. She stated that she had
conducted two tests, one STR and second YSTR. Both
the tests were scientifically proven and the competence
of the doctor who conducted the test was also not
H
questioned. Consequently, the DNA test report could be
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STArE
39
OF MAHARASHTRA
safely accepted, which showed that the deceased boy
A
was subjected to unnatural sex and offence under
Section 377 was clearly made out. [paras 17, 18] [55-C-F]
5. Section 377 is mainly confined to act of sodomy,
buggery and bestiality, which intends to punish a man
when he indulges in a carnal intercourse against the
order of nature with a man or, in the same manner, with
B
a woman. Sodomy is termed as Pederasty when the
intercourse is between a man and a young boy, that is,
when the passive agent is a young boy. Modi's Medical
Jurisprudence and Toxicology state that if a passive
C
agent is not accustomed to sodomy, abrasions on the
skin near the anus is likely to appear and lesions will be
most marked in children while they may be almost absent
in adults, when there is no resistance to the anal coitus.
Galster's Medical Jurisprudence and Toxicology say that D
lesions like recent lacerations, bruising, inflammation of
the mucous membrane could be noticed in passive agent.
Article 377 postulates penetration by the penis into the
anus and the merest penetration suffices to establish the
offence. PW4 has clearly noticed that "Anus dilated and
appears patalous, perional margin and mucosa appear
inflamed". DNA test also proved that anal smear matched
with the DNA profile of smear stains, which also matched
with the control sample of the accused. Consent of a
passive agent is not at all a defence, but, in the instant
case, though a suggestion was made that the boy had
not resisted, being in the company of the accused for few
days, is of no consequence, he being a minor.
Prosecution has clearly established that, after subjecting
E
F
the boy to Pederasty, he was strangulated to death. [Para
G
19] [55-G-H; 56-A-D]
6. PWS, sister of the accused categorically stated that
she had heard the cries of the boy coming from the room
of the accused during mid-night and she could not sleep
till the cries subsided. She had no axe to grind against · H
40
SUPREME COURT REPORTS
(2014) 3 S.C.R.
A the accused and was a trustworthy witness. PW9 also
stated that she wanted to go to the direction iil which she
heard the cries, however, darkness deterred her and
others proceeding to the place of occurrence. Cries
heard were obviously in loud voice, which indicated- that
B the accused had indulged in such a barbaric act and
ultimately killed the boy and later threw the dead body in
the well situated near the premises of the old cemetery,
a spot which was located behind his house. The courts
below, therefore, concluded that the offence committed
c by the accused shows extreme depravity of mind and
showed extreme perversity and, therefore, called for
extreme punishment i.e. the accused be hanged by neck
till death. The case under Sections 302, 377 and 201 IPC
was clearly made out. In the instant case the crime test
0 and criminal test have been fully satisfied against the
accused. [Paras 20, 21) [56-E-H; 57-A and DJ
7. The crimes preceded by Pederasty are extremely
brutal, grotesque diabolical and revolting, which shock
the moral fiber of the society, especially when the passive
E agent is a minor. Accused is now around 42 years of age
and when he committed the crime, he was about 35 years.
There is no mitigating circumstance favouring the
accused. Age is not a factor favouring him. By the age
of 35, a person attains sufficient maturity and can
F distinguish what is good or bad, and there is nothing to
show that he was under any emotional or mental stress
and the offence was committed only to satisfy his lust,
in a perverted way. Accused is not the only son of his
parents, but the boy was a minor, totally innocent and
G defenceless, the only son of PW7. The mother, PW7 was
a house maid and the son would have looked after her
in her old age and also would have been of considerable
help to her. Her son was snatched in a barbaric
gruesome manner only to satisfy the perverted lust of the
H accused. PW7, the mother had to see the dead body of
ANIL@ ANTHONY ARIKSWAMY JOSEPH v. STATE
41
OF MAHARASHTRA
the son floating in the well. PW8, the sister of the accused A
and PW9, the neighbour, both ladies heard the cries of
the helpless boy during mid-night but both were helpless.
PW8 could not go out of her room since it was locked
from outside. PW9, a lady could not go to the house of
the accused due to pitched darkness. But, so far as the B
instant case is concerned, the offences under Section
302 and 377 were fully established and both the crime test
and the criminal test were fully satisfied against the
accused. [para 21 to 24] [57-E-F, G-H; 58-A-E]
Shankar Kisanrao Khade v. State of Maharashtra (2013) C
5 SCC 546; Bachan Singh v. State of Punjab (1980) 2 SCC
684: 1980 AIR 898; Machhi Singh v. State of Punjab (1983)
3 SCC 470 : 1983 (3) SCR 413; Suresh Kumar Koushal v.
Naz Foundation and Others (2014) 1 SCC 1 : 2014 AIR 563
- relied on.
D
RR Test
8. R-R Test depends upon the perception of the
society that is "society-centric" and not "Judge-centric",
that is, whether the society will approve the awarding of E
death sentence to certain types of crimes or not. While
applying that test, the court has to look into variety of
factors like society's abhorrence, extreme indignation
and antipathy of certain types of crimes like sexual
assault and murder of minor girls, intellectually F
challenged minor girls, minors suffering from physical
disability, old arid infirm women, etc. In this case offence
under Section 377 IPC was fully proved so also the ·
offence under Section 302 IPC. Indian society and also
the International society abhor pederasty, an unnatural G
sex, i.e. carnal intercourse between a man and a minor
boy or a girl. When the victim is a minor, consent is not
a defence, irrespective of the views expressed at certain
quarters on consensual sex between adults. [Paras 26,
29] [59-H; 60-A-B; 61-B]
H
42
SUPREME COURT REPORTS
[2014) 3 S.C.R.
A
Om Prakash v. State of Haryana (1999) 3 SCC 19 : 1999
(1) SCR 794; State of U.P. v. Sattan (2009) 4 SCC 736 : 2009
(3) SCR 643; Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498 : 2009 (9) SCR 90; Bantu
v. State of U.P. (2008) 11 sec 113 : 2008 (11) SCR 184;
B
Shivaji v. State of Maharashtra (2008) 15 SCC 269 : 2008
(13) SCR 81; Mohd. Mannan v. State of Bihar (2011) 5 SCC
317 : 2011 (5) SCR 518; Rajendra Pralhadrao Wasnik v.
State of Maharashtra (2012) 4 SCC 37 : 2012 (2) SCR 225;
Haresh Mohandas Rajpu't v. State of Maharashtra (2011) 12
c SCC 56 : 2011 (14) SCR 921; Rabindra Kumar Pal alias
Dara Singh v. Republic. of India (2011) 2 SCC 490 : 2011
(1) SCR 929; Surendra Kofi v. State of U.P. and others (2011)
4 SCC 80 : '2011 (2) SCR 939; Sudam @ Rahu/ Kaniram
Jadhav v. State of Maharashtra (2011) 7 SCC 125 : 2011 (6)
0
SCR 1104; Mahesh v. State of Madhya Pradesh (1987) 3
SCC 80 : 1987 (2) SCR 710; Sevaka Perumal v. State of T.N.
(1991) 3 SCC 471 : 1991 (2) SCR 711; State of Maha. v.
Mansingh (2005) 3 SCC 131 : 2001 (4) Suppl. SCR 298;
E
·Bantu v. State of M.P. (2001) 9 SCC 615 : 2006 (10) Supp
SCR 662 - relied on.
Reformation and Rehabilitation
9. Many-a-times, while determining the sentence, the
Courts take it for granted, looking into the facts of a
F
particular case, that the accused would be a menace to
the society and there is no possibility of reformation and
rehabilitation, while it is the duty of the Court to ascertain
those factors, and the State is obliged to furnish materials
for and against the possibility of reformation and
rehabilitation of the accused. Facts, which the Courts,
G
deal with, in a given case, cannot be the foundation for
reaching such a conclusion, which calls for additional
materials. The criminal courts, while dealing with offences
like Section 302 IPC, after conviction, may, in appropriate
cases, are directed to call for a report to determine,
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
43
OF MAHARASHTRA
whether the accused could be reformed or rehabilitated, A
which depends upon the facts and circumstances of each
case. [para 31] [61-F-H; 62-A]
10. PW8 and PW9 heard the cries of the minor boy
during the midnight of 12,01.2008. Injury Nos.1, 3 to 5 B
were inflicted by hard and blunt object, while injury no.2
was caused by sharp cutting edge and injury no.6 was
caused by hard and rash object, over and above, the
offence under Section 377 also stood proved. The murder
was committed in an extremely brutal, grotesque, c
diabolical and dastardly manner and the accused was in
a dominating position and the victim was an innocent
boy. Accused was aged 35 years when the crime was
committed that is he was a fully matured person. Life of
a boy, the only .son of PW7, the m.other, was taken away 0
in a gruesome and barbaric manner which pricks not only
the judicial conscience but also the conscience of the
society. Legislative policy is discernible from Section
235(2) read with Section 354(3) of the Cr.P.C., that when
culpability assumes the proportions of depravity, the
Court has to give special reasons within the meaning of E
Section 354(3) for imposition of death sentence.
Legislative policy is that when special reasons do exist,
as in the instant case, the Court has to discharge its
constitutional obligations and honour the legislative
policy by awarding appropriate sentence, that is the will F
of the people. Incarceration of a further period of thirty
years, without remission, in addition to the sentence
already undergone, will be an adequate punishment in the
facts and circumstances of the case, rather than death
sentence. [Paras 33, 34] [62-E-H; 63-A-C]
G
Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC
230 : 2004 (1) Suppl. SCR 918; Sahdeo v. State of U.P.
(2004) 10 SCC 682 : 2007 (7) SCR 616; Swamy
Shraddananda v. State of Karnataka (2007) 12 SCC 288;
H
44
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A Shankar Kisanrao Khade (supra), Haresh Mohandas Rajput
(supra), Rajesh Kumar v. State (2011) 13 SCC 706; Amit v.
State of U.P. ·(2012) 4 sec 101 : 2012 (1) SCR 1009 -
referred to.
B
Case Law Reference:
2013 (5) sec 546
relied on
Para 21
1980 AIR 898
relied on
Para 21
1983 (3) SCR 413
relied on
Para 21
c
2014 AIR 563
relied on
Para 22
1999 (1) SCR 794
relied on
Para 25
2009 (3) SCR 643
relied on
Para 25
D
2009 (9) SCR 90
relied on
Para 25
2008 (11) SCR 184
relied on
Para 26
2008 (13) SCR 81
relied on
Para 26
E
2011 (5) SCR 518
relied on
Para 26
2012 (2) SCR 225
relied on
Para 26
2011 (14) SCR 921
relied on
Para 27
F
2011 (1) SCR 929
relied on
Para 27
2011 (2) SCR 939
relied on
Para 27
2011 (6) SCR 1104
relied on
Para 27
1987 (2) SCR 710
relied on
Para 28
G
1991 (2) SCR 711
relied on
Para 28
2005 (3) sec 131
relied on
Para 32
2001 (4) Suppl. SCR 298
relied on
Para 32
H
2006 (10) Suppl. SCR 662
relied on
Para 32
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
45
OF MAHARASHTRA
2004 (1) Suppl. SCR 918
2007 (7) SCR 616
Referred to
Para 32
A
(2007) 12 sec 288
(2011) 13 sec 706
2012 (1) SCR 1009
Referred to
Para 32
Referred to
Para 32
Referred to
Para 32
Referred to
Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1419-1420 of 2012.
B
From the Judgment and .Order dated 18.10.2011 of the
C
High Court of Bombay, Nagpur Bench at Nagpur in Criminal
Confirmation Case No. 2 of 2010 and Criminal Appeal No. 17
of 2011.
P.C. Aggarwala, Revathy Raghavan for the Appellant.
D
Shankar Chillage (for Asha Goopalan Nair) for the
Respondent.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. We are, in this case,
concerned with a gruesome murder of a minor boy aged 10
years after subjecting him to carnal intercourse and then
strangulating him to death.
E
2. The accused, Anil @ Anthony Arikswamy Joseph, was
F
charge-sheeted with offences punishable under Sections 302,
377 and 201 of the Indian Penal Code (IPC). The Principal
District and Sessions Judge, Nagpur in Sessions Trial No.167
of 2008 convicted the Appellant for the offence punishable
under Section 302 IPC and sentenced him to death and also
G
sentenced to pay a fine of Rs.10,000/- and in default to suffer
rigorous imprisonment for one year and for the offence
. punishable under Section 377 IPC, he was sentenced to suffer
rigorous imprisonment for 10 years and to pay a fine of
Rs.1,000/- and in default to suffer rigorous imprisonment for a
H
/
46
SUPREME COURT REPORTS
[2014] ~ S.C.R.
A
period of three months. The Appellant was also con\licted for
the offence punishable under Section 201 IPC and was
sentenced to suffer rigorous imprisonment for 3 years and to
pay a fine of Rs.1,000/- and in default to suffer rigorous
imprisonment for a period of three months. Substantive
B sentences, it was ordered, would run concurrently. Since the
accused was sentenced to death, reference was sent to the
High Court for confirmation of death sentence. The accused
also filed Criminal Appeal No.17 of 2011.
C
3. The Appeal and the criminal confirmation case then
came up for hearing before a Division Bench of Nagpur Bench
of the Bombay High Court on 10.08.2011 and the Bench
noticed that the DNA profile blood sample and semen sample
were not brought before the trial court. Further, it was noticed
that PW5,' the Assistant Chemical Analyzer of Forensic Science
D Laboratory, Mumbai, had given detailed evidence in respect
of the contents of Ext.35. She stated that she had occasion to
compare DNA of blood sample of the accused with Ext.1
(semen stains on half pant) and Ext.5 (anal smear of the
deceased) and the DNA samples were matching. PW5
E submitted Ext. 38 report. Ext. 38, it was noticed, did not
disclose any comparison, as stated by PW5, which was done
in FSL at Mumbai. Cor.sidering the serious nature of the
offence and considering the fact that the whole case against
the accused was based on circumstantial evidence, the Court
F
felt that it would be necessary to recall PW5 and record her
further examination-in-chief with reference to her report in
respect of the DNA profile of the accused, that too with
reference to her evidence at paragraph No.3 of her
examination-in-chief on 25.09.2009.
G
4. The Bench, therefore remitted the case to the trial court
for production of additional evidence. The operative portion of
the order reads as under :
(i)
The prayer for production of copies of Judgments
H
in Sessions Trial No.118 of 1997 and Sessions
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
47
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
Trial No.39 of 2002 does not survive as it is not A
pressed.
(ii)
The prosecution shall move the learned Trial Court
for production of the additional evidence.
(iii)
The prosecution shall recall P.W.5 and shall reB
examine the said witness further with referenced to
the DNA profile of blood sample of the accused and
the comparison thereof with Exs.1, 4 and 5 of the
report Ex.35.
c
(iv)
The learned Trial Court shall be at liberty to allow
the prosecution to produce any other documents
connected with the evidence or concerning the
collection of samples, carrying the same to F.S.L.
and analysis thereof.
D
(v)
The learned Trial Court shall also be at liberty to
allow the prosecution to examine any other witness
pertaining to or concerning with the collection of
samples, carrying the same to F.S.L. and analysis
thereof.
E
(vi)
The prosecutions shall recall P.W.10 and P.W.14
and shall examine them further with reference to
forwarding samples Exs.1, 4 and 5 of Ex.35 and ·
blood and semen samples of accused-appellant.
F
(vii) Needless to state that the accused-appellant shall
be given an opportunity to cross-examine the
witnesses recalled or fresh witnesses examined
following this order.
G
(viii) It is made clear that the learned trial Court shall be
at liberty to pass any incidental order to achieve the
purpose of this order, but shall be careful to see that
the prosecution does not misuse this opportunity of
recording of additional evidence to introduce any H
A
B
c
48
SUPREME COURT REPORTS
[2014] 3 S.C.R.
other evidence, which is not subject matter of the
present order.
(ix)
The original record and proceedings be sent back
to the learned Sessions Judge, Nagpur.
(x)
The learned Sessions Judge shall comply with this
order within 30 days from the date of receipt of this
order and shall certify the additional evidence to this
Court immediately thereof.
Application accordingly stands disposed of."
5. The Sessions Court, after recording the additional
evidence and recalling and further examining the witnesses, as
o~ered, forwarded the same to the High Court. The appeal
was then heard by a Division Bench of the High Court on
D . 40.10.2011 along with the confirmation case and the additional
evidence recorded. The High Court, after appreciating the oral
and documentary evidence and arguments advanced by the
counsel on either side, confirmed the death sentence noticing
the brutal and grotesque manner in which the crime was
E · committed. The High Court held that the young boy of tender
age was subjected to unnatural sex for the satisfaction of the
lust of the accused which, according to the High Court, falls
under the category of rarest of the rare cases. The High Court,
therefore, dismissed the appeal and confirmed the death
F sentence, against which these appeals have been preferred.
6. Shri P.C. Aggarwala, learned senior counsel appearing
for the Appellant, submitted that the prosecution has failed to
prove the case beyond reasonable doubt and all the
G circumstances put together would lead to only one inference
that the accused is not guilty of the offences charged against
him. Learned senior counsel also submitted that the
prosecution has not succeeded in establishing the last seen
theory and the evidence adduced by PW2, PW3, PW8 and
PW9 would not establish that the victim was last seen with the
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
49
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
accused. Learned senior counsel also submitted that the
A
prosecution could not establish that the articles stated to have
been recovered from the house of the accused were that of
the deceased. The evidence of PW1 and PW6, it was pointed
• out, was totally unworthy and ought to have been discarded.
Learned senior counsel also submitted that the evidence in
B
respect of DNA Profile is completely manufactured to rope in
the accused and the evidence of PW10 and PW14 in that
respect cannot be believed.
7. Shri Shankar Chillage, learned counsel appearing for
the prosecution, on the other hand, submitted that the Courts
C
below have correctly appreciated the evidence of PW2, PW3,
PW8 and PW9 and have come to the conclusion that the victim
was last seen in the company of the accused and all the
principles laid down by this Court to establish the last seen
theory have been completely satisfied, so far as the present
case is concerned. Learned counsel also submitted that the
evidences of PW1 and PW6 have been correctly appreciated
D
by the Courts below and the prosecution has succeeded in
proving that the articles recovered from the possession of the
accused were that of the deceased. Learned counsel also
submitted that the Courts below have correctly appreciated the
evidence of PWS, the Assistant Chemical Analyser, who
conducted the DNA test and deposed that she obtained the
blood sample of the accused and matched the profile from the
blood profile, which was sent as Ex.1 i.e. semen stain cutting
from the half pant and submitted the Report Exh.38. Learned
counsel submitted that the ·evidence of PWS has to be
appreciated in the light of the evidence of PW12, PW13, PW15
and PW16, which would clearly indicate that the DNA profile
obtained from the anal smear of the deceased matched with
the accused. Learned counsel submitted that the DNA profile
conclusively indicates that the accused has committed the
offence punishable under Section 377 IPC. Learned counsel
also submitted that the High Court has rightly held that the case
falls under the rarest of the rare category and correctly awarded
E
F
G
H
50
SUPREME COURT REPORTS
[2014) 3 S.C.R.
A the death sentence.
8. PW7, Shobha Vaidya, mother of the deceased, a maid
servant, was running here and there anxiously for few days to
know the whereabouts of her missing son aged 10 years. The
B boy had gone to the school on 10.1.2008 and normally he used
to return in the evening, but on that day he did not return. Since
whereabouts of the boy were not known for few days, she
lodged a complaint on 15.1.2008 at about 5.00 p.m. before
PW10, the Sub-Inspector of Police, attached to Crime Branch,
Nagpur, who was posted at Sadar Police Station. Meanwhile,
C PW2, Mary, a lady, residing near the house of the accused,
informed PW10 that the dead body of a boy aged 9-10 years
was seen floating in a well at Juna Kabrastan (old cemetery).
PW10 then proceeded to the spot and with the assistance of ·
fire brigade took the dead body from the well and sent the same
D to Mayo Hospital for conducting post-mortem examination.
After getting the post-mortem report, PW10 lodged the report
and registered the offence under Sections 377, 302 and 201
IPC.
E
9. PW14, Police Sub-Inspector attached to Sadar Police
Station, was entrusted with the investigation. By that time, the
accused was arrested on 17.1.2008 and, on his disclosure,
various articles belonging to the deceased were recovered
from the house of the accused and they were seized in the
F presence of Panchas. School bag of the deceased, which was
black in colour and had pink stripes, concealed in a box was
recovered. Bag was opened in the presence of panchas and
it was found to contain a Bal Bharati textbook, Mathematics
and English books, two note-books, all bore the name of the
G deceased. Further, a Barmuda pant, belonging to the accused
and a jeans belonging to the deceased were recovered on
17.01.2008. The accused was referred for medical examination
and the blood sample was taken on 18.01.2008. Samples of
blood semen and nail clippings were taken under Ext.17. On
the disclosure of the accused, the shirt worn by him, which was
H
ANIL@ ANTHONY ARIKSWAMY JOSEPH v. STATE
51
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
concealed near a tree under a stone, was recovered on
A
22.01.2008. Seized articles were referred to the Chemical
Analysis at Nagpur. The reports of the Analyzer are at Exts.91
and 92, while the DNA reports are at Exts.35 -and 38. After
completing the investigation, the police charge-sheeted the
accused for offences punishable under Sections 302, 377 and
B
201 IPC. On the side of the prosecution, fourteen witnesses
were exa.mined and the documentary evidence were brought
on record and on the side of the defence, none was examined.
10. PW2, Mary, who runs a tea stall in front of the Income
Tax Office, which is near the old cemetery, was examined by
C
the prosecution to prove that the boy was seen in the company
of the accused. She stated that she knows the accused who
is residing just in front of her house. She has also deposed
that on 13.1.2008, the accused had come to her shop and
demanded Gutka, which she did not give. Later, a boy of about
D
11 years was sent from the house of accused, who purchased
few items from her shop and returned to the same house. PW3,
a neighbour of the accused, is also residing near the old
cemetery. She has also deposed that she had seen the boy
with the accused on 10.01.2008 and 11.01.2008. PW8, the
E ·
sister of the accused, who was also residing with the accused
in his house, stated that she saw a boy aged about 10 to 12
years in the company of the accused, during the abovementioned period and on the fateful day, that is, in the mid-night
of 12.01.2008 and 13.01.2008, she heard the cries of the boy
F
from the room of the accused. PW9, a neighbour of the
accused, also noticed one boy aged 10 years accompanying
the accused and that, on the midnight of 12.01.2008, she heard
the cries of a small boy emanated from the side of the house
of the accused.
G ·
11. We have gone through. the evidence of PW2, PW3,
PW8 and PW9 in its entirety and, in our view, they are
trustworthy and reliable. In our view, the prosecution has
succeeded in establishing its case beyond reasonable doubt
H
52
SUPREME COURT REPORTS
[2014] 3 S.C.R.
A
that the deceased was last seen in the company of the accused
and that the findings recorded by the trial Court and affirmed
by the High Court call for no interference.
12. PW1 and PW6, Panchas of Ex. 13 and Ex.40
8
respectively, were examined by the prosecution to prove the
recovery of the pant as well as school bag of the deceased.
School bag was recovered from a box which was placed
beneath the cot in the house of the accused. Seizure
panchanams vide Exts.15 and 19 give the details of the articles
seized at the instance of the accused. The school bag
C contained books and note books which bore the name of the
deceased. The pant and the school bag along with books
contained therein would clearly indicate that the boy was in the
company of the accused on the fateful day. Consequently, the
pmsence of the deceased in the room of the accused has been
D clearly established and the finding recorded by the trial Court
as well as the High Court on that ground also calls for no
interference.
13. PW4 is the doctor who conducted the post-mortem
E
examination of dead body of the deceased. The
post-mortem report (Exh.33) indicates the following
external and internal injuries on the dead body of
the deceased :
F
"External Injuries
(1)
Anus dilated and appears patalous, perional
margin and mucosa appear inflamed, no evidence
of tear or foreign body.
G
(2)
Position of Limbus straight.
(3)
Multiple contused abrasions (6 in numbers) present
over forehead of size varying from 1.5 cm x 1.5 cm
to 2 cm x 2 cm.
H
(4)
Incised wound present over right lateral forehead
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
53
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
oblique of size 1.5 cm x 0.5 cm x bone deep.
A
(5)
Contused abrasion at right preauricular area of size
(6)
(7)
(8)
2 cm x 2 cm.
Contused abrasion at right face, 1.5 cm below the
lower eye lid of size 2 cm x 2.5 cm.
B
Centurion present at chin of size 2 cm x 2.5 cm.
Graze abrasion present at right arm, anteri medial
aspect, lower 1/3rd of size 3.5 cm x 5 cm directed
C
downward and right laterally.
Internal Injuries
(1)
(2)
(3)
Right frontal region of size 4 cm x 5 cm x 0.5 cm.
D
Right parieto-temporal region of size 5 cm x 4 cm
x 0.5 cm.
Left occipital region of size 4 cm x 4 cm x 0.5 cm.
Brain, party reddish tinged appearance to the right
E
parieto-temporal region."
14. PW4 has stated that all the internal injuries correspond
to external injuries and they were ante-mortem and were
ordinarily sufficient to cause death. PW4 has also opined that
F
there was possibility of carnal intercourse with the deceased,
though the cause of death was head injury. PW4 also stated
that he had seen the DNA report at Exh.35 and stated that the
report indicates that anal smear of the deceased gave a mixed
DNA profile which matches with semen on half pant and blood
of victim. PW4 was also shown another report of DNA, which
G
was in respect of the control sample blood of the accused and
stated that DNA profile of blood matches with DNA profile of
· semen found in the anus of the deceased. Further, he has also
stated that injury nos.1, 3, 4 and 5 were possible by hard and
blunt object while injury no.2 was caused by sharp cutting edge
H
54
SUPREME COURT REPORTS
(2014] 3 S.C.R.
A and injury no.6 was caused by hard and rough object. Facts
clearly indicate that the fatal injuries were caused to silence him,
after satisfying lust in a barbaric manner. Attempts were made
to destroy the evidence which were also proved. PW4 also
categorically stated in respect of injury no.1 that it should read
B as anus dilated and appears patalous, perianal margin anal
mucosa appear inflamed, though no evidence of tear or foreign
body.
15. PW5, the Assistant Chemical Analyzer, Forensic
C Science Lab, Kalina, Mumbai stated that she had received the
parcels from the Regional Forensic Science Laboratory,
Nagpur on 24.1.2008 and she started the analysis on the same
day. She stated that Exh.1 is a DNA profile of the accused and
Exh.5 anal smear is of the deceased, which gave mixed profile.
Further, it is stated that the profile obtained from Exh.1 semen
D stains matches with the profile obtained from Exh.5 anal smear
and also Exh.4 blood stains gauze collected from the deceased.
She stated that she conducted two tests, one nuclear Short
Tandem Repeats (STR) and Y Short Tandem Repeats (YSTR).
PW5, in her report, stated that she obtained blood samples of
E the accused and matched the profile obtained from that blood
with the profile of Exhs.1 and 5 and that the profiles were
matching. PW5, as already indicated, was recalled after the
matter was remitted to the trial Court for getting further evidence
and she repeated that sh.e had analyzed the blood sample of
F the accused for DNA profiling and it matched with the sample,
which was sent as Exh.1 i.e. semen stain cutting from the half
pant. She accordingly issued a report as Exh.38.
16. PW12, the Medical Officer attached to Mayo Hospital,
G. Nagpur was examined to prove that he had received the
requisition for taking blood samples, pubic hair, nails and
semen of the accused under requisition at Exh.75, which was
handed over to the police. PW15 and PW16 were also
examined to establish the procedure followed for taking the
parcel to the Chemical Analyser for DNA test as well as for
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE
55
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
collecting blood samples, etc. On going through the evidence A
of PW4.and PW5 read with evidence of PW12, PW15 and
PW16, we are of the view that the DNA test was successfully
conducted and that the anal smear matched with the DNA
profile of semen stains which were found on the pant of the
accused and were matched with the control blood sample of B
the accused as well as blood sample of the deceased.
17. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms. DNA
genotype can be obtained from any biological material such as
bone, blood, semen, saliva, hair, skin, etc. Now, for several C
years, DNA profile has also shown a tremendous impact on
forensic investigation.