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

- **Citation:** [2019] 18 S.C.R. 1078
- **Court:** Supreme Court of India
- **Decided:** 2019-11-07
- **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-33687
- **Pages:** 38

## Headnote

Review - In death penalty cases - Application of restrictive
principles - Murder - Rape - Co-accused (now deceased) using
borrowed school van, picked up a 10-year old girl and her 7-year
old brother who were waiting to go to school - He thereafter picked
up his friend (accused-petitioner) 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, leading to their death
by drowning - Conviction of accused-petitioner u/ss.302, 376(2)(f),
(g) & 201, IPC and death sentence by trial court and High Court -
Present three-Judge Bench unanimously affirmed the conviction and
by majority upheld the death sentence - Majority judgment
upholding conviction and death penalty delivered by Surya Kant,
J. (for Rohinton F. Nariman, J. and himself) - Minority judgment
upholding conviction but awarding life sentence (till natural death)
without remission / commutation delivered by Sanjiv Khanna, J. -
Review Petitions - Held: Liable to be dismissed - Per Surya Kant,
J. (for R.F. Nariman, J. and himself), held: Prosecution case was
established through numerous evidences in addition to a clear
confession proving petitioner's guilt beyond any residual doubt -
Conflicting versions were deposed by petitioner and defence
witnesses, and no explanation to discharge onus u/s.106 of the
Evidence Act was provided - Hence, it was not a case fit for
application of theory of "residual doubt" - Just because the now
deceased co-accused was the mastermind whose offence was
[2019] 18 S.C.R.1078
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comparatively more egregious, one cannot commute the otherwise
barbarically shocking offences of the petitioner - Also, attempted
retraction of confession by the petitioner showed how he was in
fact remorseless - It was not in the spur of the moment or a crime of
passion; but craftily planned, meticulously executed and with
multiple opportunities to cease and desist - Offences of petitioner
were so grave as to shock the conscience of the Court and of society
and amounted to the rarest of the rare - No grounds to review
judgment upholding his conviction and death penalty - Per Sanjiv
Khanna, J., held: Reasons given by Surya Kant, J. in dismissing the
review petition and upholding the conviction of petitioner are entirely
agreed upon and concurred with - On the question of sentence, no
good ground and reasons to review the observations and findings
in the minority judgment - Penal Code, 1860 - ss. 302, 376(2)(f),
(g) & 201 - CrPC, 1973 - ss.163, 164 - Evidence Act, 1872 - ss.24
and 106.
Review - Scope of - Held [per Surya Kant, J. (for R.F.
Nariman, J. and himself)]: Scope of a review is more constrained
than that of an appeal - A party cannot be allowed to re-urge the
case on merits to effectively seek re-appreciation of evidence when
the matter has already been decided earlier, even if on different
grounds - Interference in the earlier judgement assailed in a Review
is permissible only on the basis of an error apparent on the face of
record or discovery of important new evidence which has a direct
bearing on the ultimate outcome of the case and if not well
appreciated, would cause manifest injustice.
Precedents - Verdicts with multiple opinions - Interpretation
of - Dissenting opinions - Precedential value of - Held [per Surya
Kant, J. (for R.F. Nariman, J. and himself)]: Dissenting opinions
have little precedential value and there is no difference in operation
between decisions rendered unanimously or those tendered by
majority, albeit with minority dissenting views - Jurisprudence.
Confession - Validity - Voluntariness of a confession - Held
[per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Cornerstone
of a valid confession in India is only whether such a statement was
made in compliance with statutory provisions which mandate

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SUPREME COURT REPORTS
[2019] 18 S.C.R.
MANOHARAN
v.
STATE BY INSPECTOR OF POLICE, VARIETY HALL
POLICE STATION, COIMBATORE
(Review Petition (Crl.) Nos.446-447 of 2019)
in
(Criminal Appeal Nos.1174-1175 of 2019)
NOVEMBER 07, 2019
[R. F. NARIMAN, SURYA KANT AND
SANJIV KHANNA, JJ.]
Review - In death penalty cases - Application of restrictive
principles - Murder - Rape - Co-accused (now deceased) using
borrowed school van, picked up a 10-year old girl and her 7-year
old brother who were waiting to go to school - He thereafter picked
up his friend (accused-petitioner) 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, leading to their death
by drowning - Conviction of accused-petitioner u/ss.302, 376(2)(f),
(g) & 201, IPC and death sentence by trial court and High Court -
Present three-Judge Bench unanimously affirmed the conviction and
by majority upheld the death sentence - Majority judgment
upholding conviction and death penalty delivered by Surya Kant,
J. (for Rohinton F. Nariman, J. and himself) - Minority judgment
upholding conviction but awarding life sentence (till natural death)
without remission / commutation delivered by Sanjiv Khanna, J. -
Review Petitions - Held: Liable to be dismissed - Per Surya Kant,
J. (for R.F. Nariman, J. and himself), held: Prosecution case was
established through numerous evidences in addition to a clear
confession proving petitioner's guilt beyond any residual doubt -
Conflicting versions were deposed by petitioner and defence
witnesses, and no explanation to discharge onus u/s.106 of the
Evidence Act was provided - Hence, it was not a case fit for
application of theory of "residual doubt" - Just because the now
deceased co-accused was the mastermind whose offence was
[2019] 18 S.C.R.1078
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comparatively more egregious, one cannot commute the otherwise
barbarically shocking offences of the petitioner - Also, attempted
retraction of confession by the petitioner showed how he was in
fact remorseless - It was not in the spur of the moment or a crime of
passion; but craftily planned, meticulously executed and with
multiple opportunities to cease and desist - Offences of petitioner
were so grave as to shock the conscience of the Court and of society
and amounted to the rarest of the rare - No grounds to review
judgment upholding his conviction and death penalty - Per Sanjiv
Khanna, J., held: Reasons given by Surya Kant, J. in dismissing the
review petition and upholding the conviction of petitioner are entirely
agreed upon and concurred with - On the question of sentence, no
good ground and reasons to review the observations and findings
in the minority judgment - Penal Code, 1860 - ss. 302, 376(2)(f),
(g) & 201 - CrPC, 1973 - ss.163, 164 - Evidence Act, 1872 - ss.24
and 106.
Review - Scope of - Held [per Surya Kant, J. (for R.F.
Nariman, J. and himself)]: Scope of a review is more constrained
than that of an appeal - A party cannot be allowed to re-urge the
case on merits to effectively seek re-appreciation of evidence when
the matter has already been decided earlier, even if on different
grounds - Interference in the earlier judgement assailed in a Review
is permissible only on the basis of an error apparent on the face of
record or discovery of important new evidence which has a direct
bearing on the ultimate outcome of the case and if not well
appreciated, would cause manifest injustice.
Precedents - Verdicts with multiple opinions - Interpretation
of - Dissenting opinions - Precedential value of - Held [per Surya
Kant, J. (for R.F. Nariman, J. and himself)]: Dissenting opinions
have little precedential value and there is no difference in operation
between decisions rendered unanimously or those tendered by
majority, albeit with minority dissenting views - Jurisprudence.
Confession - Validity - Voluntariness of a confession - Held
[per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Cornerstone
of a valid confession in India is only whether such a statement was
made in compliance with statutory provisions which mandate that
the same must be before the Magistrate after compliance with certain
safeguards meant to ensure voluntariness and lack of coercion by
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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the police - On facts, the Magistrate (PW-28) duly complied with
all procedural requirements for recording of a confessional statement
and affirmatively satisfied himself of the voluntariness of the
petitioner's confession - CrPC, 1973 - ss.163, 164 - Evidence Act,
1872 - s.24.
Confession - Retracted confession - Effect of - Held [per
Surya Kant, J. (for R.F. Nariman, J. and himself)]:: Even in the
absence of an express provision for retracting a confessionary
statement once made, the Courts have preferred a rule of prudence
whereby in case of retraction, the Court reduces the probative value
of such confessionary statements and seeks corroborating evidence
- CrPC, 1973 - ss.163, 164 - Evidence Act, 1872 - s. 24.
Confession - Objective and use of - Held [per Surya Kant,
J. (for R.F. Nariman, J. and himself)]: Provisions permitting use of
confessionary statements in criminal trials were statutorily included
as an acknowledgement of the possibility that in certain
circumstances an accused may voluntarily confess to his offence(s).
Sentence / Sentencing - Death penalty - Plea that death ought
not to be awarded in cases of circumstantial evidence - Held [per
Surya Kant, J. (for R.F. Nariman, J. and himself)]: Not tenable -
There can be no hard rule of not awarding death in cases based on
circumstantial evidence - Criminal Law.
Sentence / Sentencing - Death penalty cases - Opportunity
for oral arguments on the question of sentence - Held [per Surya
Kant, J. (for R.F. Nariman, J. and himself)]: In cases of death penalty,
since the punishment is irreversible and right to life u/Art.21 of the
convict is violated, it is necessary to provide at least one opportunity
for oral arguments on the question of sentence - Constitution of
India, 1950 - Art. 21.
Sentence / Sentencing - Death penalty - Grounds for
commutation - Held [per Surya Kant, J. (for R.F. Nariman, J. and
himself)]: Even observed devoid of any aggravating circumstances,
mere young age and presence of aged parents cannot be grounds
for commutation - One may view that such young age poses a
continuous burden on the State and presents a longer risk to society,
hence warranting more serious intervention by Courts.
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Code of Criminal Procedure, 1973 - s.164 - Defence plea
regarding absence of a counsel during proceedings before the
Magistrate u/s.164, CrPC resulting into prejudice - Held [per Surya
Kant, J. (for R.F. Nariman, J. and himself)]: The plea is misconceived
- s.164 CrPC does not contemplate that a confession or statement
should necessarily be made in the presence of the advocate(s),
except, when such confessional statement is recorded with audiovideo electronic means.
Dismissing the review petitions, the Court
HELD : [per Surya Kant, J. (for R.F. Nariman, J. and
himself)]:
1. Scope of Review: The scope of Review even in death
penalty cases is narrow and in various earlier decisions of the
Supreme Court restrictive principles were applied and re-affirmed
while considering the scope of review in death penalty cases.
The scope of a Review is more constrained than that of an appeal.
A party cannot be allowed to reurge the case on merits to
effectively seek re-appreciation of evidence when the matter has
already been decided earlier, even if on different grounds.
Interference in the earlier judgement assailed in a Review is
permissible only on the basis of an error apparent on the face of
record or discovery of important new evidence which has a direct
bearing on the ultimate outcome of the case and if not well
appreciated, would cause manifest injustice. [Paras 18, 19,
20][1096-C; 1097-A-G; 1098-A-B]
Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of
India (2014) 9 SCC 737 : [2014] 11 SCR 1009 -
followed.
Vikram Singh v. State of Punjab (2017) 8 SCC 518 :
[2017] 8 SCR 177; Mukesh v. State of (NCT of Delhi)
(2018) 8 SCC 149 : [2018] 7 SCR 898; Kamlesh Verma
v. Mayawati (2013) 8 SCC 320 : [2013] 11 SCR 25 -
relied on.
Manoharan v. State by Inspector of Police (2019) 7
SCC 716 - affirmed.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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2. Voluntariness of Confession & Effect of Retraction
2.1. On a conjoint reading of the confessional scheme
comprising of Sections 163, 164 CrPC and Section 24 Indian
Evidence Act, it is obvious that even in the absence of an express
provision for retracting a confessionary statement once made,
the Courts have preferred a rule of prudence whereby in case of
retraction, the Court reduces the probative value of such
confessionary statements and seeks corroborating evidence.
Hence, the cornerstone of a valid confession in India is only
whether such a statement was made in compliance with statutory
provisions which mandate that the same must be before the
Magistrate after compliance with certain safeguards meant to
ensure voluntariness and lack of coercion by the police. In the
instant case, from a chronological analysis of the confessional
statement of Petitioner dated 20.11.2010 (Ex.P.18) as well as the
preliminary examination held on 19.11.2010, it is apparent that
the Magistrate (PW-28) duly complied with all procedural
requirements for recording of a confessional statement and
affirmatively satisfied himself of the voluntariness of the
petitioner's confession. [Paras 23, 26][1099-B-D]
Bharat v. State of U.P. (1971) 3 SCC 950 and Abdul
Razak Murlaza Dafadar v. State of Maharashtra AIR
1970 SC 283 : [1970] 1 SCR 551 - relied on.
Shivappa v. State of Karnataka (1995) 2 SCC 76 :
[1994] 6 Suppl. SCR 171; State of Assam v. Rabindra
Nath Guha 1982Cri LJ 216 - referred to.
2.2. The confession, in the present case, was not challenged
during stage of framing of charge or over the course of
examination of forty-seven prosecution witnesses, but instead
only partly disputed through a letter written in secret just before
petitioner's examination under Section 313 CrPC. Such retraction
at the fag-end of the trial, was not natural but rather meticulously
formulated, perhaps as a part of defence strategy. Hence, there
remains no doubt about the voluntariness of the confession of
20.11.2010 or it being unaffected by subsequent retraction. That
apart, even if the confession dated 20.11.2010 were to be treated
as being retracted vide letter dated 25.07.2012 (as adopted during
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examination under Section 313 CrPC), still the original confession
can be relied upon. Coupled with corroborating evidence,
conviction can also be secured on the strength of such confession.
Still further, it is clear that even in the retraction statement, the
petitioner has made substantial admissions which read together
with prosecution evidence, are sufficient to convict him. Through
the letter dated 25.07.2012, the Petitioner merely restates his
confession with certain omissions and a few denials as compared
to his earlier statement. A comparison of the retraction with the
confession dated 20.11.2010 further shows that it is merely an
improvement. The Petitioner has admitted to all the general
circumstances of the incident, i.e. having been present at the
scene of all crimes, being friend of the co-accused and of the
offences as claimed by the prosecution to have occurred.
However, he merely contends that the crimes were committed
by the co-accused and not by the Petitioner himself. Regardless
thereto, there are sufficient inculpatory admissions in the letter
dated 25.07.2012 to place a strong burden of proof on the
Petitioner under Section 106 of the IEA. Moreover, the petitioner
has not been convicted by the Courts below or this Court, solely
on the basis of his confession made under Section 164 CrPC.
The confession has been corroborated by enough evidence and
it would not be a stretch to state that even independent of such
confessional statement, this Court would nevertheless have
reached a firm conclusion of guilt. [Paras 28, 29, 31 and 32][1102D-F; 1103-C-D; F-H]
Shankaria v. State of Rajasthan (1978) 3 SCC 435;
Subramania Goundan v. State of Madras AIR 1958 SC
66 : [1958] SCR 428; Pyare Lal Bhargava v. State of
Rajasthan AIR 1963 SC 1094 : [1963] Suppl. SCR
689 - relied on.
3. Independent Re-appreciation of Evidence: The
contention raised that this Court decided the appeal without
independently re-appreciating all the material on record, cannot
be accepted. This Court critically analysed all the material
witnesses and documents exhibited on record which were referred
to during the course of arguments. A careful examination of such
evidence lead to a unanimous finding of guilt against the Petitioner.
[Para 33][1104-A-B]
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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4. Plea of inadequacy of Legal Representation
4.1. Although it is correct that seven counsels refused to
defend the Petitioner and there was a resolution by the bar to not
take up his brief, but the Trial Court ensured the services of a
legal aid counsel who ably conducted petitioner's defence during
the trial. In the present facts no prejudice has been caused to the
petitioner for want of adequate or proper legal assistance. Not
only did the High Court re-appreciate the entire evidence, but it
also conducted another examination of the Petitioner under
Section 313, CrPC. Furthermore, the High Court appointed a
Senior Advocate, in addition to an Advocate, to provide the best
legal services to the Petitioner. Similarly, in appeal, this Court
both re-appreciated the evidence and ensured due legal
representation. Even in the present Review, the petitioner's
interests are protected by a Senior Counsel and as a matter of
abundant caution, this Court has also conducted an elaborate
analysis. It is thus not found to be a case of deficient legal
assistance, affecting the Petitioner's rights under Article 21 of
the Constitution. [Para 38, 39][1105-D, F-G; 1106-A]
4.2. The plea regarding absence of a counsel during
proceedings before the Magistrate under section 164, CrPC
resulting into any prejudice, are misconceived. What mandatorily
is needed, is that the Magistrate must satisfy himself of the
voluntariness of the statement and all the statutory safeguards
which includes bringing the repercussions and the voluntariness
of making confessions to the knowledge of the accused, must be
meticulously complied with. Section 164 CrPC does not
contemplate that a confession or statement should necessarily
be made in the presence of the advocate(s), except, when such
confessional statement is recorded with audio-video electronic
means. [Paras 40, 41][1106-B-D]
Hussainara Khatoon v. State of Bihar (1980) 1 SCC
98 : [1979] 3 SCR 532; State v. Navjot Sandhu (2005)
11 SCC 600 : [2005] 2 Suppl. SCR 79 - referred to.
Strickland v. Washington 466 U.S. 668 (1984) -
referred to.
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5. Allegations of discrepancies in arrest & recovery of
evidence
The dispute re: the date of arrest is not only immaterial for
determination of petitioner's guilt in the present case, but
otherwise also there is no substance therein. Analysis of the
depositions prove that the underwear of the deceased girl (MO1) was recovered and sent for forensic examination without any
tampering. The seal on the parcel containing the underwear was
still intact when PW-49 received it for forensic examination.
Furthermore, casting a doubt on the identification of MO-1 by
the father of deceased (PW-1) is also baseless and holds no
ground. Merely because PW-1 did not dress his daughter on the
date of the incident does not imply that he would not recognize a
piece of clothing of his daughter. PW-1 has clearly deposed that
MO-1 belongs to his daughter. [Paras 43, 48 and 49][1106-G;
1108-G-H; 1109-A-B]
6. Plea of erroneous conviction under Section 376 IPC
Considering the final opinion of PW-46 (who conducted
autopsy on the body of the girl) that the girl was subjected to
sexual assault; injury on the penis of petitioner; recovery of dead
body of X without underwear; recovery of underwear from the
Maruti Van; father of X recognising the underwear; finding hair
on the recovered underwear and matching of DNA of hair with
that of the petitioner, even in absence of the confessional
statement of the petitioner, it is established the petitioner
committed offence under Section 376 IPC. The petitioner is justly
convicted for offence under Section 376 IPC. [Para 55]
[1110-F-H]
7. Plea of erroneous reliance on POCSO
It was urged that this Court ought not to have relied on a
recent amendment to the Protection of Children from Sexual
Offences (POCSO) Act, 2012 to justify death penalty, as the new
law was non-existent on the date of occurrence and hence cannot
be applied retrospectively in derogation to Article 20 of the
Constitution. Although the plea is attractive at first glance, it must
be noted that the Petitioner has not been convicted or sentenced
under the POCSO Act. Instead, only a passing reference was
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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made to pinpoint whether the present case was rarest of the rare
and whether it would shock the conscience of the society. [Paras
56, 57][1111-A-C]
Macchi Singh v. State of Punjab AIR 1983 SC 957 :
[1983] 3 SCR 413; Suthenraraja v. State, (1999) 9 SCC
323 : [1999] 3 Suppl. SCR 540; Ravishankar v. State
of Madhya Pradesh 2019 SCC OnLine SC 1290 -
referred to.
8. Sentencing
8.1.The contention that death ought not to be awarded in
case of a single dissent, notwithstanding the opinion of the majority
is unsupported in view of more than one decisions of this Court.
Dissenting opinions have little precedential value and there is
no difference in operation between decisions rendered
unanimously or those tendered by majority, albeit with minority
dissenting views. Nevertheless, this Court has re-visited the
mitigating circumstances against aggravating circumstances, as
well as a report commissioned by this Court during the course of
appeal and submitted by the jail superintendent which reveals
that the conduct of the Petitioner is merely satisfactory and he
has not undertaken any study or anything else to show any signs
of reformation. The prosecution case has been established
through numerous evidences in addition to there being a clear
confession, which proves the Petitioner's guilt beyond any
residual doubt. Conflicting versions have been deposed by the
Petitioner and the defence witnesses, and no explanation to
discharge the onus under Section 106 of the Evidence Act has
been provided. Hence, it is not a case fit for application of the
theory of "residual doubt". Accordingly, even the contention that
death ought not to be awarded considering that the present case
is one involving circumstantial evidence is unfounded. There can
be no hard rule of not awarding death in cases based on
circumstantial evidence owing to recent developments in medical
science and the possibility of abuse by seasoned criminals. [Paras
59-62][1112-C; 1113-A-F]
Devender Pal Singh v. State of NCT of Delhi (2003) 2
SCC 501 : [2002] 5 Suppl. SCR 332; Krishna Mochi
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v. State of Bihar (2002) 6 SCC 81 : [2002] 3 SCR 1 -
relied on.
8.2. Furthermore, there is nothing to support the
characterisation of the accused as being a helpless, illiterate young
adult who is a victim of his socio-economic circumstances. Far
from being so, it is clear through the version of events that the
accused had the presence of mind to craft his own defence and
attempt to retract his confession through an elaborately written
eleven page letter addressed to the Magistrate and had further
received adequate legal representation. [Para 63][1113-G]
8.3. The retraction was extremely belated and only a defence
to shield himself. Further, medical evidence has proved that rape
was committed on the deceased girl. It is hence factually incorrect
to state that the Petitioner prevented the co-accused from raping
the girl and is nothing more than a belated lie at the end of the
trial. Hence, the exculpatory parts ought to be excluded.
[Para 64][1114-A-B]
8.4. Even observed devoid of any aggravating
circumstances, mere young age and presence of aged parents
cannot be grounds for commutation. One may view that such
young age poses a continuous burden on the State and presents
a longer risk to society, hence warranting more serious
intervention by Courts. Similarly, just because the now deceased
co-accused was the mastermind whose offence was comparatively
more egregious, one cannot commute the otherwise barbarically
shocking offences of the petitioner. The current crime was not
just one offence, but comprised of multiple offences over the
series of many hours. [Para 65][1114-C-D]
8.5. Even if the cases involving confession merit some
leniency and compassion, however, as was earlier noted in the
majority opinion, the attempted retraction of the statement shows
how the petitioner was in fact remorseless. Such belated
retractions further lay rise to the fear that any remorse or
repentance being shown by the petitioner now may be temporary
and that he can relapse to his old ways. Irrespective of the
underlying reasons behind such retraction, whether it be the fear
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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of death or feeling that he was not getting any benefit of his earlier
confession, but the possibility of recidivism has only been
heightened and one can no longer look at the initial confession in
a vacuum. [Para 66][1114-E-F]
8.6. Rather, the present case is essentially one where two
accused misused societal trust to hold as captive two innocent
school-going children, one of whom was brutally raped and
sodomised, and thereupon administered poison and finally,
drowned by throwing them into a canal. It was not in the spur of
the moment or a crime of passion; but craftily planned,
meticulously executed and with multiple opportunities to cease
and desist. The present offence(s) of the Petitioner are so grave
as to shock the conscience of this Court and of society and would
without doubt amount to rarest of the rare. There exist no grounds
to review the judgment upholding conviction and death penalty.
[Paras 67, 68][1114-G-H; 1115-A-B]
Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347 :
[1969] 1 SCR 1033 - relied on.
HELD : (Per Sanjiv Khanna, J.)
The reasons given by Surya Kant, J. in dismissing the
review petitions upholding the conviction of the petitioner under
Sections 302, 376(2)(f) and (g) and 201 of the Indian Penal Code
are entirely agreed upon and concurred with. On the question of
sentence, no good ground and reasons are seen to review the
observations and findings in the minority judgment. [Para 1]
[1115-C, D]
Case Law Reference
[In Judgment of Surya Kant, J.(for R.F. Nariman, J. and himself)]
(2019) 7 SCC 716
affirmed
Para 1
[2014] 11 SCR 1009
followed
Para 17
[2017] 8 SCR 177
relied on
Para 18
[2018] 7 SCR 898
relied on
Para 19
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[2013] 11 SCR 25
relied on
Para 19
[1994] 6 Suppl. SCR 171
referred to
Para 22
(1971) 3 SCC 950
relied on
Para 24
[1970] 1 SCR 551
relied on
Para 26
1982 Cri LJ 216
referred to
Para 26
(1978) 3 SCC 435
relied on
Para 27
[1958] SCR 428
relied on
Para 29
[1963] Suppl. SCR 689
relied on
Para 29
[1979] 3 SCR 532
referred to
Para 36
[2005] 2 Suppl. SCR 79
referred to
Para 37
[1983] 3 SCR 413
referred to
Para 57
[1999] 3 Suppl. SCR 540
referred to
Para 58
[2002] 5 Suppl. SCR 332
relied on
Para 59
[2002] 3 SCR 1
relied on
Para 59
[1969] 1 SCR 1033
relied on
Para 64
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) Nos. 446-447 of 2019 in Criminal Appeal Nos. 1174-1175 of
2019.
From the Judgment and Order dated 01.08.2019 passed by
Supreme Court of India in Criminal Appeal Nos.1174-1175 of 2019.
Sidharth Luthra, Sr. Adv., Mrs. Revathy Raghavan, S. Muthu
Krishnan, Ms. Divya Chaudhary, Mobin Akhtar, Amartya Kanjilal, Kartik
Murukutla, Ms. Aaayushi Sharma, Ms. Shubhangni Jain, Advs. for the
Petitioner.
M. Yogesh Kanna, Ms. Meha Aggarwal, Advs. for the
Respondent.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE
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The Judgment and Order of the Court were delivered/passed by
SURYA KANT, J.
1. These review petitions are directed against the judgment dated
01.08.2019 passed in Manoharan v. State by Inspector of Police1,
wherein this three-Judge Bench had affirmed conviction of the accused
Manoharan for offences punishable under Sections 302, 376(2)(f) and
(g) and 201 of the Indian Penal Code (in short "IPC") and by majority
upheld the death sentence confirmed by the High Court.
Factual Matrix
2. Brief facts of the present case are as follows:
'X', a ten-year-old girl and 'Y', her 7-year-old brother were
enrolled in Classes V and II respectively in a private school at Coimbatore
and would commute around 7:45 a.m. in a pickup vehicle owned by one
Kartikeyan (PW-2). On 29.10.2010 the children left as usual with their
school bags and lunch boxes and stood about two-hundred feet away
from their home, in front of the Vinayakar Temple. Around 8:00 a.m.,
PW-2 came to the designated pick-up spot but did not find the children
there. He contacted the children's father, Ranjith Kumar Jain (PW-5),
over mobile to enquire about their absence. Being in Hyderabad, PW-5
was unable to provide an immediate reply to the query of PW-2 and
hence called his wife, the children's mother - Sangeetha (PW-8), who
informed him that both X and Y had already left home. Since the father
of the children (PW-5) was already on his way back to Coimbatore, he
entrusted his wife to look out for the children and co-ordinate with the
van driver. Sangeetha informed Karthikeyan that the children had already
left the house, whereafter she along with her relatives Vijay Kumar
(PW-1) and Sanjai (PW-6) started searching for the children.
3. Kamala Bai (PW-9), the paternal grandmother of the children
had gone to a Jain Temple around 8:00 a.m. in the morning. Upon returning
home at 10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed
her that the children had been picked up by a former van driver and it
was conjectured that the children must be in school. Vijay Kumar
(PW-1) then went to the school and found that the children had however
not reached. After a frantic but futile search, PW-1 lodged a police
complaint (Ex. P1) with Vasuki (Sub-Inspector of Police, PW-42) at
1 (2019) 7 SCC 716.
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around 11AM under Section 363 of the Indian Penal Code (in short
"IPC").
4. The Investigating Officer ("IO", PW-47), thereafter, took over
investigation and recorded statements of the informant (PW-1), the
school's principal - Anthony Raj (PW-10), as well as of the grandmother
(PW-9) and the just returned father of the children (PW-5). First trace
of the missing children was received at 6PM when Anthony Raj (PW10) informed the IO (PW-47) that one Chinnasamy (PW-22) had called
to inform that two school bags with identity cards bearing names of X
and Y were found floating in and later fished out from the ParambikulamAxhiyar Project ("PAP") Canal. A second lead came to the Police from
Karthikeyan (PW-2) who received a call from his erstwhile employee -
Anbu @ Gandhiraj (PW-7) who conveyed that one Mohanakrishnan
had borrowed a Maruti Omni Van from him that morning. This aroused
Karthikeyan's suspicion since Mohanakrishnan was his former employee
whose services were terminated after it had been discovered that he
was borrowing money from the parents whose children were being
transported to school by PW-2's agency. The IO (PW-47) accordingly
advised both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alert
the police whenever Mohanakrishnan came to return the Omni Van. At
around 9:45PM, Anbu alerted the police that Mohanakrishnan had come
to return the Van and he had also confessed to the kidnapping, rape and
murder of the two missing children along with his friend Manoharan.
Pursuant to the information received by Anbu, Mohanakrishnan was
arrested and a confessional statement was recorded in the presence of
Anbu (PW-7) and one Santosh Kumar (not examined as a witness).
The Maruti Omni Van along with one Nokia Cellphone and the driving
license of Mohanakrishnan were also seized. The IO consequently sent
a report (Ex. P-30) for alteration of charge from under Section 363, IPC
to Sections 364(A), 376, 302 read with Section 201, IPC which was
received by the Magistrate at 11:45PM.
5. Having observed certain saliva and yellow-coloured stains on
the seized van, the IO requisitioned forensic assistance of Sarvanan
(PW-43), Deputy Director of Mobile Unit of Tamil Nadu Forensic
Sciences Department. In the presence Sarvanan (PW-43), Anbu (PW7) and one Santosh Kumar (unexamined), the van was thoroughly
searched wherein a lady's underwear bearing the inscription "SBT
Kidswear 75 c.m." with hair strands was recovered. Sarvanan (PWMANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
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43) further collected the betel nut saliva stains on the left door of the van
with a cotton swab for chemical examination, as well as dried yellowcolour stains found on the seat and floormat, and the clothes (namely
pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar Exs.
P-5 & P-6). Mohanakrishnan subsequently led a police team to the place
where he claimed to have raped X as well as to Deepalapatti, the place
from where the children had allegedly been pushed into the running waters
of the PAP canal.
6. The girl child's body was found the subsequent morning in the
PAP canal by villagers near Palladam Taluk at 9:30AM, and the boy's
body was later recovered from the canal around 12 kms from
Deepalapatti. Postmortem was conducted by Dr. Jayasingh (PW-46) at
the Coimbatore Medical College and Hospital, wherein the following
injuries were recorded on X's body:
"The body was first seen by the undersigned at 02.15 pm on
30.10.10. Its condition then was rigor mortis present all over
the body. Post mortem commenced at 02.15 pm on 30.10.10.
Appearances found at the postmortem:-
Moderately nourished body of a female aged 10 yrs. Finger
and toenails bluish in colour. The body wearing blue colour
"T" shirt with white colour sticker named as "Suguna Rips"
noted left side, black colour track suit with white line order,
white colour socks and white colour shoes and rose colour
shimmis. White colour frothy secretions noted over both nostrils
and mout. Water suddening noted over both palms and soles."
7. The following ante mortem injuries noted over the body:
"1. Liner vertical scratch marks 4 in numbers in varying size
noted over lateral aspect right elbow joint.
2. Transverse scratch abrasions 3 in number in varying size
noted over lateral aspect of left upper forearm.
3. A scratch mark 3 in number noted over lower part of left
arm.
4. Contusion 2x1 cm x 0.5 depth noted over in the posterior
fourchettes and lateral wall of vagina. Hymen intact.
5. On examination of anus: - Anus found roomy measuring 3
cm in diameter and mucosal tear 1x0.5 cm x mucosal deep
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noted over left lateral aspect of the anus at the level of mucocutaneous junction.
On dissection of Thorax and Abdomen: Contusion 4 x 2 cm
noted over anterior aspect of lower end of uterus."
8. Similarly, in Y's postmortem examination, the following ante
mortem injuries were noted:
"1. Bluish contusion 3 x 2 cm noted on middle of left side
neck, 3 cm left to midline.
2. Bluish contusion 3 x 2 cm noted over outer aspect of right
forearm.
3. Bluish contusion noted over right side third intercostal
space.
4. On dissection of scalp, skull and dura: sub scalpel
contusion 20 x 10 cm noted over bi frontal region and bi
parietal region. Diffuse sub dural and sub arachnoid
haemorrhages noted on both cerebral hemispheres.
5. On bloodless dissection of neck: contusion 4 x 3 cm noted
on left side middle of neck. Hyoid bone found intact."
9. The present review-petitioner, Manoharan (hereinafter
"petitioner") who was stated to have perpetrated the crime along with
Mohanakrishnan, was arrested on 31.10.2010 at 7AM, as recorded in
Ex. D-4. Manoharan made a disclosure statement to the police (Ex. P21) on the basis of which the IO (PW-47) recovered lunch box of Y
from his house. Further, after being produced before the Magistrate the
same day, the petitioner was sent to judicial custody.
10. A Test Identification Parade was conducted on request of the
IO whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver
of the van in which the children had been kidnapped. Subsequently, both
the petitioner and Mohanakrishnan were medically examined on
04.11.2010 whereby samples of their blood and saliva were sent to the
Tamil Nadu Forensic Science Laboratory for DNA Analysis. A potency
test of the petitioner was conducted by Dr. J.R. Singh (PW-46), who in
his medical report (Ex. P-56) found him potent and further noticed signs
of injury around his private parts.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
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11. During recovery proceedings under Section 27 of the Indian
Evidence Act (in short "IEA"), whilst in police custody, Mohanakrishnan
shot and wounded two police officers and was consequently shot dead
by the Police on 09.11.2010. Thus, the trial against Mohanakrishnan
was abated and the petitioner alone was left to be tried as an accused.
12. Succinctly, the prosecution's version of events is that
Mohanakrishnan using a borrowed school van, picked up two children
(X and Y) who were waiting to go to school at about 7:50 a.m. He
further picked up his friend, Manoharan from his house at 9:30 a.m. and
subsequently, they took the children to a remote location where after the
girl child was raped and sodomised. Subsequently, Manoharan and
Mohanakrishnan purchased cow dung powder (a poisonous substance)
which was mixed in milk and then administered to the children to end
their life. However, both the children spat out the substance and only
ingested a small portion. Since poisoning did not work, Mohanakrishnan
and the petitioner threw both the children into the turbulent waters of a
nearby Canal, hence drowning them.
CASE HISTORY
13. Over the course of the trial, the prosecution examined fortynine witnesses in all including persons who witnessed abduction, purchase
of milk and cow dung powder and those having seen children in the
custody of accused persons at various places. Further, various medical
and forensic evidence were produced, proving drowning and rape as
well as injuries on Petitioner's body. A 'last seen theory' was built by the
prosecution, in addition to use of a confessional statement made by the
petitioner under Section 164, CrPC. The Trial Court ultimately held the
Petitioner guilty under Section 120-B, 364-A, 376, 302 r/w 34 and 201
IPC. Under Section 376, the Petitioner was awarded life sentence and
for offence under Section 302 IPC he was given death sentence.
14. The Madras High Court set aside conviction of Petitioner
under Sec. 120-B and 364A IPC but confirmed the sentences under
Sec. 376, 302 r/w 34 and 201 IPC. After considering aggravating and
mitigating circumstances, the High Court confirmed death sentence
awarded by the Trial Court.
15. Thereafter the Petitioner filed a Special Leave Petition under
Article 136 whereby this Court dismissed his appeal and confirmed the
death sentence by majority, observing that the case fell in the category
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of the 'rarest of rare' cases. After considering all evidence on record
and contentions of the counsels, the majority opinion of this Court read
as follows:
"In the circumstances, we have no doubt that the trial court
and High Court have correctly applied and balanced
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 Petitioner at all and given the nature of the crime as
stated in paragraph 84 of the High Court's judgment it is
unlikely that the Petitioner, if set free, would not be capable
of committing such a crime yet again. The fact that the
Petitioner 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, we confirm the death sentence and dismiss the
appeals."
16. Khanna J., in his minority opinion also upheld conviction under
the various offences concerned, but dissented on the quantum of sentence,
holding as follows:
"I would, therefore, uphold and maintain 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. To this extent the appeal is dismissed. In view
of the aforesaid discussion and on balancing aggravating
and mitigating circumstances, in my opinion, the present case
does not fall under the category of "rarest of the rare" case
i.e. there is no alternative but to impose death sentence. 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 CrPC. To this extent I would allow the
appeal."
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
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17. The Petitioner then filed the present petition for review of the
said judgement and order dated 01.08.2019, which was heard at
considerable length in open Court following the parameters evolved in
Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India2, wherein
a Constitutional Bench of this Court held that in cases of death penalty,
since the punishment is irreversible and Article 21 of the convict is violated,
it is necessary to provide at least one opportunity for oral arguments on
the question of sentence.
SCOPE OF REVIEW
18. At the outset, it may be clarified that the scope of Review
even in death penalty cases has been narrowed down in Vikram Singh
v. State of Punjab3, laying down that review can only be on a glaring
error apparent on the face of the judgement or order. A mere change or
addition of grounds cannot be allowed at the stage of review. This Court
thus held as follows:
"23. In view of the above, it is clear that scope, ambit and
parameters of review jurisdiction are well defined. Normally
in a criminal proceeding, review applications cannot be
entertained except on the ground of error apparent on the
face of the record.