# MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY HALL POLICE STATION, COIMBATORE

- **Citation:** [2019] 18 S.C.R. 1007
- **Court:** Supreme Court of India
- **Decided:** 2019-08-01
- **Case number:** Criminal Appeal Nos. 1174-1175 of 2019
- **Bench:** R. F. Nariman, Surya Kant, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manoharan-v-state-by-inspector-of-police-variety-hall-police-station-coimbatore-33686
- **Pages:** 71

## 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 (accusedappellant) 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
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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 sh

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MANOHARAN
v.
STATE BY INSPECTOR OF POLICE,
VARIETY HALL POLICE STATION, COIMBATORE
(Criminal Appeal Nos. 1174-1175 of 2019)
AUGUST 01, 2019
[R. F. NARIMAN, SURYA KANT AND
SANJIV KHANNA, JJ.]
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 (accusedappellant) 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
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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
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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.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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Unanimously affirming conviction and by majority upholding
the death sentence, the Court
HELD: [per R.F. Nariman, J. (for himself and Surya Kant,
J.)] (Majority judgment):
1. Having gone through the exhaustive analysis of the High
Court, it is felt that no reasonable ground has been made out by
accused-Appellant to assail the same and, therefore, the findings
that the Appellant had subjected the girl to sexual assault are
confirmed. [Para 9][1039-E]
2. The Appellant argued that the Magistrate should have
refused to record the confessional statement made on 20.11.2010
given the fact that Appellant had been beaten by the police. The
High Court has dealt with this aspect of the case by stating that
the Magistrate asked the Appellant repeatedly as to whether the
statement that is being given by him is voluntary or because of
torture or beatings. The Appellant repeatedly stated that the
statement being given was voluntary. Further, the High Court
has also adverted in its judgment, to the fact that police custody
ended after the first 15 days of arrest that is on 14.11.2010. The
accused was produced before the Judicial Magistrate only on
19.11.2010 after which statement was recorded on 20.11.2010. It
was clear therefore that on this date there was no possibility of
handing back the Appellant to police custody. Further, the
retraction that was made from the confessional statement was
made one year and nine months after it was made and the
retraction statement confirms the original confessional statement
in every detail except that the Appellant retracts the part played
by him in the rape and murder of the ten year old girl and the girl
& boy respectively. For all these reasons, therefore the
arguments of the Appellant in this behalf are rejected. [Para
10][1039-F-H; 1040-A-B]
3. The Appellant argued that PW.24 who is a very material
witness as to the last seen theory cannot possibly be believed.
Even if the argument is accepted, it must not be forgetten that
for the last seen theory a number of other persons were relied
upon by the High Court. PW.20, PW.25 and PW.23 all saw the
two accused together with the children at different times on
29.10.2010. Indeed, even if one were to read the confessional
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statement of the Appellant together with the retraction thereof,
the fact that he purchased milk at 1.00 p.m. from PW.23 is clearly
made out and the fact that the co-accused Mohanakrishnan went
to meet the tailor, was also admitted by him in both the original
confessional statement as well as the retraction. It is clear
therefore that the evidence of PW.20 and 23 are corroborated by
the confessional statement and the retraction made by the
Appellant and therefore the factum of the two accused being with
the two children in the vehicle is clearly made out and thus the
High Court's conclusion that the last seen theory can be relied
upon cannot possibly be assailed. [Para 11][1040-C-F]
4. The Appellant argued that having raped a girl in the
morning hours, it is highly improbable that the victim would be
paraded around and taken to so many places including the shop
selling milk and cow dung powder, and that the entire story is so
inherently improbable that it should be rejected. This kind of
argument flies in the face of the confessional statement made
even when read with the retraction thereof. All the facts as to the
co-accused Mohanakrishnan abducting the children, raping the
girl and murdering the children are contained in both the
statement as well as the retraction of the Appellant. It is only in
the retraction that the Appellant seeks to exculpate himself
completely from rape and murder, which, as has rightly been held
by the High Court, cannot be given any credence. This is also for
the added reason that once it is accepted that the DNA sample
from the pubic hairs of the Appellant are found in the panty of the
dead girl, rape gets established beyond reasonable doubt.
[Para 12][1040-G-H; 1041-A-B]
5. The argument of the Appellant that no semen or blood
was found on the body of the dead girl pales into insignificance in
view of the DNA evidence. In any case, the body of the dead girl
was found in a canal, which had fast flowing water in it, several
kilometers away, after one day of the commission of the crime. It
is obvious that with this passage of time whatever semen and
blood that may have been on the dead body when the girl was
thrown into the canal has been effaced by the fast-flowing water
in which the body was immersed for a day after it was recovered.
[Para 13][1041-C]
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6. The argument of appellant that the allegation of tying up
of the children has no evidence to support it, is also not correct
inasmuch as in both the confessional statement as well as the
retraction thereof it is clear that co-accused Mohanakrishnan at
least tied the girl with a rope and then raped her. [Para 14]
[1041-D]
7. The Appellant argued that the panty was found later in
the car thereby rendering its being found in the car suspect, and
that the panty which is stated to be torn was never so stated in
the earlier statements made to the police. However, what is clear
from the forensic examination is that the panty was found in the
car only after the car was searched at 2.00 a.m. on the night after
the rape and the murder as is clear from a reading of exhibit P.5
marked on the side of the prosecution. [Para 15][1041-E-F]
8. The Appellant argued that it is wholly improbable that
the lunch bag of the murdered boy would be taken home by the
accused Appellant and would be found by the police at his house
two days thereafter. Obviously therefore the aforesaid bag has
been planted by the police. Even if this is so, this does not take
the Appellant anywhere. [Para 16][1041-G]
9. From the facts is that it is clear that the children were
initially abducted by the other accused after which the appellant
joined them. The fact that the Appellant brutally raped the 10
year old girl is corroborated not only by his confessional statement
but also by the DNA test which found the Appellant's pubic hair
on the panty of the girl. It is clear that once this heinous act was
committed, the next important step would be for both the accused
to do away with the children so that they would not be able to
give evidence as to the kidnapping and rape committed on the
girl. Towards this end, it is admitted that the Appellant purchased
"cow dung" powder, that is poison, and milk, and stated in his
confessional statement that the two were then mixed and
administered to both children by both the accused. Since the
poison did not work, the only other way of doing away with the
children would be to find some other method, and the method
found by the two accused was to take the children to the canal in
question and throw them into the canal so that they would be
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dead by drowning. The entire chain of events has been made out
and despite this being a case of circumstantial evidence, the
prosecution has clearly proved its case beyond reasonable doubt.
The courts below are right in convicting the Appellant of rape
and murder. [Para 16][1041-G-H; 1042-A-D]
10. The question that now arises is whether the death
sentence should be confirmed by this Court. In Khushwinder
Singh case, this Court affirmed the death sentence of the accused
in which the accused had killed six innocent persons, out of which
two were minors, by kidnapping three persons, drugging them
with sleeping tablets, and then pushing them into a canal.
Thereafter, three other members of the same family were done
away with. The present case consists of a crime even more
shocking than that in Khushwinder's case, in as much as a young
10 year old girl has first been 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. [Paras 17, 22][1042-D; 1052-A-B; 1053-B]
11. Just as this judgment is being dictated, it is noticed
that a significant amendment has been made to The Protection of
Children from Sexual Offences Act, 2012, vide "The Protection
of Children from Sexual Offences (Amendment) Bill, 2019" which
was passed on 24.07.2019 by the Rajya Sabha. It is noticed that
post the amendment, the minimum sentence for aggravated
penetrative sexual assault has gone up from 10 years to 20 years,
and imprisonment for life has now been expressly stated to be
imprisonment for the remainder of the natural life of the person.
More significantly, the death penalty has also been introduced.
On the facts of the present case there is no doubt that aggravated
penetrative sexual assault was committed on the 10 year old girl
by more than one person. The 10 year old girl child (who was
below 12 years of age) would fall within Section 5 (m) of the
POCSO Act. There can be no doubt that this judgment is in
keeping with the legislature's realisation that such crimes are on
the rise and must be dealt with severely. [Paras 23 and 24]
[1053-C-D; 1054-D-F]
12. In the circumstances, there is no doubt that the trial
court and High Court have correctly applied and balanced
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HALL POLICE STATION, COIMBATORE
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aggravating circumstances with mitigating circumstances to find
that the crime committed was cold blooded and involves the rape
of a minor girl and murder of two children in the most heinous
fashion possible. No remorse has been shown by the Appellant
at all and given the nature of the crime as stated in of the High
Court's judgment it is unlikely that the Appellant, if set free, would
not be capable of committing such a crime yet again. The fact
that the Appellant made a confessional statement would not, on
the facts of this case, mean that he showed remorse for committing
such a heinous crime. He did not stand by this confessional
statement, but falsely retracted only those 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, the death
sentence is confirmed. [Para 25][1055-F-H; 1056-A-B]
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413; Mukesh v. State (NCT of Delhi)
(2017) 6 SCC 1 : [2017] 6 SCR 1; Khushwinder Singh
v. State of Punjab (2019) 4 SCC 415 : [2019] 3 SCR 446
- relied on.
Dhananjoy Chatterjee v. State of West Bengal (1994) 2
SCC 220 : [1994] 1 SCR 37; Laxman Naik v. State of
Orissa (1994) 3 SCC 381 : [1994] 1 SCR 37; Bantu v.
State of U.P. (2008) 11 SCC 113 : [ 2008] 11 SCR 184;
Rajendra Pralhadrao Wasnik v. State of Maharashtra
(2012) 4 SCC 37 : [2012] 2 SCR 225; Akhtar v. State
of U.P. (1999) 6 SCC 60; State of Maharashtra v. Bharat
Fakira Dhiwar (2002) 1 SCC 622 : [2001] 5 Suppl.
SCR 12 and Vasanta Sampat Dupare v. State of
Maharashtra (2017) 6 SCC 631 : [2017] 3 SCR 850 -
referred to.
HELD : [per Sanjiv Khanna, J. (concurring on conviction
but dissenting on the quantum of sentence)] (Minority judgment):
1. The conviction of the appellant under Sections 302,
376(2)(f) and (g) and 201 IPC and the sentences awarded under
Sections 376(2)(f) and (g) and 201 IPC are upheld and maintained.
However, on balancing aggravating and mitigating circumstances,
the present case does not fall under the category of 'rarest of
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rare' case i.e. there is no alternative but to impose death sentence.
This is not a case wherein the appellant should be given death
penalty. It would fall within the special category of cases, where
the appellant should be directed to suffer sentence for life i.e. till
his natural death, without remission/commutation under Sections
432 and 433 Cr.P.C. [Paras 40][1077-E-F]
2. In Bachan Singh v. State of Punjab, this Court, while
accepting validity of the death penalty, had settled as a ratio that
imprisonment for life is the normal and preferred punishment for
the offences under Section 302 of the IPC, and that death penalty,
which deprives the accused of his life, is an exception to be
imposed only in the 'rarest of rare' cases, when the first option of
imposing imprisonment for life is foreclosed and for which special
reasons must be recorded. Recognising that the legislative policy
underlying the provisions of Sections 302 IPC and 354(3) CrPC
requires exercise of the court's discretion on the award of
punishment, Bachan Singh case had laid down that a balance sheet
of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances for the judicial
discretion to be exercised. The expression 'special reasons' in
the context, it was observed, means 'exceptional reasons' founded
on exceptionally grave circumstances of the particular case
relating to the crime and the criminal. Bachan Singh case
highlights the aspect of probability of reform and rehabilitation,
and also probability that the accused would not commit criminal
acts as to constitute a continuing threat to society and that the
State must by evidence adduced establish that such conditions
are not satisfied. [Paras 2, 3 and 4][1056-F-H; 1057-A-B, G-H]
3. In Machhi Singh v. State of Punjab, this Court elucidated
that from the tussle between the protagonists of "an eye for an
eye" philosophy who demand "death for death" on one hand and
the "humanists" who press for "death in no case", a synthesis
had emerged for imposing a death sentence only in the 'rarest of
rare' cases. Machhi Singh case analysing the principles in Bachan
Singh case observed that they postulate a twin question test which
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is required to be answered by the Court when they exercise
discretion to determine the 'rarest of rare' cases. The questions
that must be put and answered are: (a) Whether there was
something uncommon about the crime, which renders the
sentence of imprisonment for life inadequate and calls for death
sentence? (b) Whether there were other circumstances
concerning the crime, i.e. aggravating circumstances, because
of which there is no alternative but to impose the death sentence
after having accorded maximum weightage to all mitigating
circumstances which speak in favour of the offender? The
circumstances elucidated in Machhi Singh case, if carefully
analysed, relate to the first question to be posed and answered.
But this is not the only question that the court must answer, for
the second question has to be also answered in order to direct or
uphold the death penalty. Second question can be answered with
reference to the grounds quoted from Bachan Singh case. These
grounds relating to mitigating factors are however not exhaustive.
[Paras 5 and 7][1058-A-B; 1059-B-E]
4. In Rajesh Kumar v. State through the Government of
NCT of Delhi, this Court had traced out case laws for evaluation
of the sentencing structure with reference to the aggravating and
mitigating circumstances in the Indian context. Rajesh Kumar
case clearly rejects the theory that while inflicting the punishment
of death penalty, only the nature and gravity of the crime to the
exclusion of the characteristics of the criminal are germane for
consideration and imposition of an appropriate punishment. Thus,
while awarding the sentence, the Court should not confine its
consideration "principally or merely" to the circumstances of a
particular crime, but also give due consideration and regard to
the circumstances and attributes of the criminal. [Para 8]
[1059-F; 1060-B-C]
5. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, it was observed that the 'rarest of rare' dictum
breathes life into the 'special reasons' which are mandated to be
recorded under Section 354(3) of the Cr.P.C. In this regard,
referring to Bachan Singh case, the Court had emphasised the
aforesaid principles rest on a real and abiding concern for the
dignity of human life which postulates resistance to the taking
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away of a life through the instrumentality of laws, and that death
ought not to be awarded save in the 'rarest of rare' cases and
when the alternative option is incontrovertibly foreclosed. The
brutality of the manner in which the crime was committed may
not be the sole ground for judging whether the case is one of the
'rarest of rare'. [Paras 9 and 12] [1061-C-D; 1062-G; 1063-A]
6. The 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. Thus, 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.
[Para 10][1061-E-F]
7. In V. Sriharan case, the majority judgment had observed
that the situation on the lack of uniformity and inconsistency in
awarding death sentence and its ill effects is of serious concern.
Thereafter it was noted that this Court in several cases had
imposed imprisonment till life or for a fixed term exceeding 14
years without remission as a middle path where life sentence
means a person's life span in incarceration, rather than get nudged
into endorsing the death penalty. The Court would not violate
the law by giving the aforesaid direction by imposing life
imprisonment with the stipulation by restraint or limit to grant of
remission by way of statutory executive action. Thus, the majority
judgment approved the ratio in Swamy Shraddananda (2) case
that there can be special category of sentence where the Court
could specify that the life sentence would exceed 14 years and
would be beyond application for remission. The majority, however
clarified, that such directions in the judgment would not in any
manner restrict the right to claim remission, commutation,
clemency etc. as provided under Article 72 and Article 161 of the
Constitution. [Paras 15 and 16][1067-C-F]
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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8. A three judges bench in their decision in M.D. Mannan
@ Abdul Mannan v. State of Bihar, commuted the death sentence
with the direction that considering the heinous nature of the crime
committed, the petitioner therein must undergo imprisonment
for life, that is till his natural death and no remission of sentence
would be granted. In Santosh Kumar case, reference was made
to the 48thReport of the Law Commission and the importance of
information relating to the characteristics and socio-economic
background of the offender which should be collected and brought
to the notice of the Court. In Mulla v. State of Uttar Pradesh, it
was held that the socio-economic factors relating to the crime
and the criminal should be taken into consideration. The socioeconomic characteristics of the criminal assume relevancy in light
of administration of criminal justice and particularly of capital
punishment, with regard to which the Law Commission, in its
262nd Report, had made observations. [Paras 17, 18 and 19][1067G-H; 1068-C-D; 1069-B]
9. In the present case, the offence or the crime was brutal,
ruthless and cruel as two innocent children aged 7 to 10 lost
their lives, and there is substantial medical and other evidence
to show that the young girl was mercilessly sexually abused and
raped by the appellant and the other accused (since deceased).
Thereafter the children were administered poison and thrown
into a canal to die. The pain and trauma suffered by the small
children who were not at fault and the agony of the parents and
grandmother are immense, incalculable and would remain forever.
The punishment must be severe. Yet to award death penalty the
Court must balance out the aggravating circumstances by giving
weightage to the mitigating circumstances and decide whether
punishment of life imprisonment is foreclosed. Then and then
alone the case would fall under the 'rarest of rare' category. While
doing so, majority dictum in V. Sriharan case should be accounted
that 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 the entire course of life with no recourse to remission, subject
to the power that may be exercised under Article 72 and 161 of
the Constitution. [Para 20][1069-E-H; 1070-A]
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10. The prosecution case that hair belonging to Appellant
was found in the van is acceptable but the forensic report that
this was the pubic hair of the Appellant would be debatable. It
would be also debatable whether the hair was found stuck/attached
on the underwear (M.O. -1) which belonged to the deceased girl.
Inspite of the aforesaid reservation, there is no hesitation in
accepting that the prosecution case has been proved beyond doubt
and for this confessional statement made by appellant before the
Magistrate under Section 164 CrPC is also relied upon. The
contention that the confession should not be relied upon has been
rightly rejected. In the avowal recorded on 20th November 2010,
twenty days after the arrest of the appellant on 30th October
2010, the appellant was candid and forthcoming in accepting his
friendship with the other accused (since deceased), and that the
girl was subjected to sexual assault and was raped by the other
accused (since deceased) on the rear seat of the van by tying her
hands. [Para 29][1073-C-E]
11. In the present case, confession was not made at the
behest of the police/ authorities or on inducement by the
prosecution to enable the prosecution to prove the case against
the appellant. In this case, it could be argued that the appellant
was driven by the hope that an earlier admission of guilt may lead
to a lighter sentence and that was one of the factors that had
prompted him to make the confession. However, to confess to
such acts of crime and misdeeds before all and everyone, including
the Magistrate could only mean that the appellant had felt shame,
remorse and alienation from the society. It is probable, among
other reasons, that the appellant had confessed his guilt in order
to seek forgiveness. Otherwise, there is no cause for him to
appear before the Magistrate and on oath, disclose in detail and
accept his direct involvement in the crime. In Bishnu Prasad Sinha
case, this Court referred to the confession made by the appellant
before the Judicial Magistrate and also before Sessions Judge in
a statement under Section 313 Cr.P.C. and observed that this
would show repentance. [Paras 33 and 35][1074-F-G; 1075-C-E]
12. Appellant's partial retraction has been rightly disbelieved
for good reasons, including the statement of the appellant under
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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Section 313 Cr.P.C. in the Court accepting and admitting that his
confession was recorded by the Magistrate. The retraction by
itself should not be treated as absence of remorse or repentance,
albeit an afterthought or on advice propelled by fear that the
appellant in view of his admission may face the gallows, and that
the earlier confession made seeking forgiveness would be the
cause of his death. 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 the appellant. [Para 38][1076-G-H; 1077-A]
13. The other mitigating factors in favour of the appellant
are his young age, he was 23 years of age at the time of occurrence
and he belongs to a poor family. He has aged parents and is a
first-time offender as recorded in the judgment/order of the trial
court. Further, the appellant was not initially involved in the
abduction and kidnapping of the children. He was not the
mastermind. The other accused (since deceased) had thought,
conceived and had single-handedly executed the plan to abduct
the children. Appellant did join him thereafter. The other accused
(since deceased) took over and he sexually assaulted and raped
the small girl, while the appellant kept quiet. Later the appellant
too sexually assaulted and committed rape. Thereupon, poison
was administered to the children before throwing them into the
canal. The offence committed was heinous and deplorable. [Para
39][1077-B-D]
Union of India v. V. Sriharan alias Murugan and Others
(2016) 7 SCC 191 - followed.
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413; Rajesh Kumar v. State through the
Government of NCT of Delhi (2011) 13 SCC 706;
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90;
Mulla v. State of Uttar Pradesh (2010) 3 SCC 508 :
[2010] 2 SCR 633; Gurdeep Singh alias Deep v. State
(Delhi Admn.) (2000) 1 SCC 498 : [1999] 2 Suppl.
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 SCR 693; M. D. Mannan @ Abdul Mannan v. S t a t e
of Bihar [2019] 8 SCR 266 : 2019 AIR 2934 - relied
on.
Vadivelu Thevar and Anr. v. State of Madras AIR 1957
SC 614 : [1957] SCR 981; Ravji alias Ram Chandra
v. State of Rajasthan (1996) 2 SCC 175 : [1995] 6
 Suppl. SCR 195; Swamy Shraddananda @ Murali
Manohar Mishra v. State of Karnataka (2007) 12 SCC
288 : [2007] 7 SCR 616; Panchhi and others v. State
of Uttar Pradesh (1998) 7 SCC 177 : [1998] 1 Suppl.
 SCR 40; Vashram Narshibhai Rajpara v. State of
Gujarat (2002) 9 SCC 168 : [2002] 3 SCR 422; Om
Prakash v. State of Haryana (1999) 3 SCC 19 : [1999]
1 SCR 794; Swamy Shraddananda (2) v. State of
Karnataka (2008) 13 SCC 767 : [2008] 11 SCR 93;
Sangeet and Another v. State of Haryana (2013) 2 SCC
452 : [2012] 13 SCR 85; Dagdu and Others v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Mohinder Singh v. State of Punjab (2013) 3 SCC 294 :
[2013] 3 SCR 90; Ram Deo Prasad v. State of Bihar
(2013) 7 SCC 725 : [2013] 6 SCR 108; The Collector
of Customs, Madras and Others v. D. Bhoormall (1974)
2 SCC 544 : [1974] 3 SCR 833; Santa Singh v. State of
Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229;
Mohd. Maqbool Tantray v. State of Jammu and Kashmir
(2010) 12 SCC 421 : [2010] 3 SCR 589 - referred to.
Case Law Reference
(In the Judgment of R. F. Nariman, J. [for himself and
Surya Kant, J.]):
[1983] 3 SCR 413
relied on
Para 18
[2017] 6 SCR 1
relied on
Para 19
[1994] 1 SCR 37
referred to
Para 19
[1994] 1 SCR 37
referred to
Para 19
[2008] 11 SCR 184
referred to
Para 19
[2012] 2 SCR 225
referred to
Para 19
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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(1999) 6 SCC 60
referred to
Para 20
[2001] 5 Suppl. SCR 12
referred to
Para 20
[2017] 3 SCR 850
referred to
Para 21
[2019] 3 SCR 446
relied on
Para 22
In the Judgment of Sanjiv Khanna, J.
(1980) 2 SCC 684
relied on
Para 2
[1983] 3 SCR 413
relied on
Para 5
(2011) 13 SCC 706
relied on
Para 8
[1957] SCR 981
referred to
Para 8
[1995] 6 Suppl. SCR 195
referred to
Para 8
[2009] 9 SCR 90
relied on
Para 9
[2007] 7 SCR 616
referred to
Para 11
[1998] 1 Suppl. SCR 40
referred to
Para 12
[2002] 3 SCR 422
referred to
Para 12
[1999] 1 SCR 794
referred to
Para 12
(2016) 7 SCC 191
followed
Para 13
[2008] 11 SCR 93
referred to
Para 13
[2012] 13 SCR 85
referred to
Para 16
[2019] 8 SCR 266
relied on
Para 17
[1977] 3 SCR 636
referred to
Para 17
[2013] 3 SCR 90
referred to
Para 17
[2010] 2 SCR 633
relied on
Para 19
[2013] 6 SCR 108
referred to
Para 21
[1974] 3 SCR 833
referred to
Para 21
[1977] 1 SCR 229
referred to
Para 32
[1999] 2 Suppl. SCR 693
relied on
Para 36
[2010] 3 SCR 589
referred to
Para 36
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1023
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1174-1175 of 2019.
From the Judgment and Order dated 24.03.2014 of the High Court
of Judicature at Madras in R. T. No. 1 of 2012 and in Criminal Appeal
No. 854 of 2012.
P. Vinay Kumar, Adv. for the Appellant.
M. Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Advs.
for the Respondent.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. Leave granted.
2. The present appeals raise the spectre of a ghastly rape and
murder. The brief facts necessary for appreciation in these appeals are
as follows.
3. One Mohanakrishnan(at 7.50 a.m. on 29.10.2010) who had
borrowed a vehicle from PW.7 its owner, picked up two children, a girl
aged 10 years old and her brother aged 7 years old from outside a Hindu
Temple as the children were preparing to go to school.This
Mohanakrishnan was seen by PW.3, the priest of the particular Vinayakar
Temple and by PW.9, the grandmother of the two children, taking the
children away in the aforesaid vehicle. Mohanakrishnan then drove the
children to a petrol pump at around 8.15 a.m. on the same day, and at
9.30 a.m. picked up the Appellant from his house in Angalakuruchi. The
children were then taken to a remote area called the Gopalsamy Temple
Hills at roughly 10.45 a.m. at which point rape was allegedly committed
on the girl whose hands were tied by both Mohanakrishnan and the
Appellant. Thereafter, considering that the girl had been brutally raped
(her anus having ruptured), the two accused bought what is called cow
dung powder which is nothing but a poisonous substance which is added
to cow dung to keep insects away. This substance together with milk
that was also purchased by the Appellant herein was allegedly
administered by both Mohanakrishnan as well as the Appellant to the
two children in an attempt to do away with both of them.Both children
ingested only a small portion of the cow dung powder mixed with the
milk and did not die.Mohanakrishnan and the Appellant thereafter to do
away with both the children threw them in Parambikulam-Axhiyar Project
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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canal ("PAP Canal") and it was alleged by the prosecution that the girl
was tied up and pushed into the canal by the Appellant herein whereas
the boy was pushed into the canal by Mohanakrishnan. At 5.00 p.m.,
PW.24 saw the school bags of the two children floating in the canal,
which were then given to PW.22. Later on the same evening, PW.22
informed PW.10 the principal of the school who then informed the police
between 6.15 p.m. and 6.30 p.m. the same evening. At 9.00 p.m. on the
same day, Mohanakrishnan went to the house of PW.7 one Anbu
@Gandhiraj, who informed the police,as a result of which
Mohanakrishnan was arrested at 9.45 p.m. on the same night at PW.7's
house. At 9.30 a.m. on the next day, the girl's body was recovered from
the canal. On 31.10.2010, the present Appellant was arrested at 7.15
a.m. and on the same day, the boy's body was also recovered from the
canal. To complete the narrative, Mohanakrishnan was shot dead by the
police on 9.11.2010 in an encounter. That left only the Appellant to be
tried as an accused. A confession was recorded before the Magistrate
in a statement made under Section 164 of the Code of Criminal
Procedureby the Appellant on 20.11.2010 which was partially retracted
only by a letter dated 25.7.2012, which the Appellant asked the trial
court to treat as a statement under Section 313 of the Code of Criminal
Procedure.
4. The prosecution examined a large number of witnesses - 49 in
all. The trial court in a detailed judgment ultimately held the Appellant
guilty under Section 120-B, Section 364-A, Section 376, Section 302,
Section 302 read with Section 34 and Section 201 of the Indian Penal
Code. Under Section 376 IPC, the Appellant was awarded life sentence,
and for the offence under Section 302 IPC, he was given the death
sentence.
5. The High Court of Madras, in the impugned judgment dated
24.3.2014, set aside the Appellant's conviction under Section 120-B and
364-A of the Penal Code, but confirmed the sentences under Sections
376, 302, Section 302 read with Section 34, and Section 201. After
considering aggravating and mitigating circumstances, ultimately the death
sentence imposed by the trial court was confirmed by the High Court.
6. In order to make out the offence of kidnapping the two children
for ransom, a number of witnesses were examined.