# PAPPU v. THE STATE OF UTTAR PRADESH

- **Citation:** [2022] 2 S.C.R. 13
- **Court:** Supreme Court of India
- **Decided:** 2022-02-09
- **Case number:** Criminal Appeal Nos. 1097-1098 of 2018
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pappu-v-the-state-of-uttar-pradesh-35961
- **Pages:** 89

## Headnote

Penal Code, 1860: ss. 376, 302, 201 - Protection of Children
From Sexual Offences Act 2012 - ss. 5, 6 - Circumstantial Evidence
- Prosecution case was that appellant enticed a seven year old girl
to accompany him on the pretext of picking lychee fruits - Thereafter
he committed rape on her and killed her and dumped the dead body
in bushes near the riverbank -Trial court and High Court
concurrently recorded the findings that the prosecution was able to
successfully establish the chain of circumstances leading to
unmistakable conclusion that the appellant was guilty of the offences
of rape and murder of the victim child as also of concealing her
dead body - The fundamental fact, as held proved against the
appellant was that the deceased was lastly seen in the company of
the appellant when he took the deceased along with himself while
shooing away other children- Burden was on the accused to
explain his whereabouts after he was last seen with the deceased
and to show if, and when, the deceased parted with his company as
also the reason for his knowledge about the location of the dead
body- Appellant undoubtedly failed to discharge the burden cast
upon him by s.106 of the Evidence Act - This circumstance is a
strong link in the chain of circumstances against him - In the given
set of circumstances, it could safely be said that the presumption
contemplated by s.29 POCSO came into operation - The other
significant fact, as held proved, was that the dead body of the victim
child was recovered at a faraway place near the riverbank at the
instance of the appellant - Appellant failed to satisfactorily explain
his whereabouts since he was last seen in the company of the deceased
as also his knowledge of the location of the dead body - These
facts and factors, taken together with the medical and other scientific
evidence formed complete chain of circumstances, leading to the
conclusion on the guilt of the appellant - Conviction of the appellant
of offences under ss.376, 302, 201 IPC and ss.5/6 POCSO is upheld.
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Sentence/Sentencing: Rape and murder of seven year old girl
child - The heinous nature of crime like that of present one, in
brutal rape and murder of a seven-year-old girl child, definitely
discloses aggravating circumstances, particularly when the manner
of its commission shows depravity and shocks the conscience - But,
at the same time, considering that appellant had no criminal
antecedents, came from a very poor socio-economic background,
having a family comprising of wife, children and aged father, and
unblemished jail conduct, probability of reformation and
rehabilitation of the appellant is not ruled out - Therefore, case is
treated to not fall in 'rarest of rare' category - Yet, the impact of the
offences in question on the conscience of the society as a whole
cannot be ignored - Appellant was about 33-34 years of age at the
time of commission of crime in the year 2015 - Looking to the overall
facts and circumstances, it is held just and proper to award the
punishment of imprisonment for life to the appellant for the offence
under s.302 IPC while providing for actual imprisonment for a
minimum period of 30 years - Penal Code, 1860 - ss. 376, 302,
201 - Protection of Children From Sexual Offences Act 2012 - ss.
5, 6.
Evidence: Child witness - Rural background of witness -
Discrepancies in evidence - In the process of appreciation of
evidence, trial court and High Court looked at the crux of the matter
emerging from her testimony that she was indeed a witness to the
fact that the deceased child was last seen in the company of the
appellant when he took her along towards lychee farm - The
testimony of child witness is categorical in regard to the facts and
there appears no reason to disbelieve her testimony, even if her
comprehension of time and hours appears to be wanting in maturity
- It would be rather unrealistic to expect such maturity from a tenyear-old child comin

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[2022] 2 S.C.R. 13
13
PAPPU
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 1097-1098 of 2018)
FEBRUARY 09, 2022
[A. M. KHANWILKAR, DINESH MAHESHWARI AND
C. T. RAVIKUMAR, JJ]
Penal Code, 1860: ss. 376, 302, 201 - Protection of Children
From Sexual Offences Act 2012 - ss. 5, 6 - Circumstantial Evidence
- Prosecution case was that appellant enticed a seven year old girl
to accompany him on the pretext of picking lychee fruits - Thereafter
he committed rape on her and killed her and dumped the dead body
in bushes near the riverbank -Trial court and High Court
concurrently recorded the findings that the prosecution was able to
successfully establish the chain of circumstances leading to
unmistakable conclusion that the appellant was guilty of the offences
of rape and murder of the victim child as also of concealing her
dead body - The fundamental fact, as held proved against the
appellant was that the deceased was lastly seen in the company of
the appellant when he took the deceased along with himself while
shooing away other children- Burden was on the accused to
explain his whereabouts after he was last seen with the deceased
and to show if, and when, the deceased parted with his company as
also the reason for his knowledge about the location of the dead
body- Appellant undoubtedly failed to discharge the burden cast
upon him by s.106 of the Evidence Act - This circumstance is a
strong link in the chain of circumstances against him - In the given
set of circumstances, it could safely be said that the presumption
contemplated by s.29 POCSO came into operation - The other
significant fact, as held proved, was that the dead body of the victim
child was recovered at a faraway place near the riverbank at the
instance of the appellant - Appellant failed to satisfactorily explain
his whereabouts since he was last seen in the company of the deceased
as also his knowledge of the location of the dead body - These
facts and factors, taken together with the medical and other scientific
evidence formed complete chain of circumstances, leading to the
conclusion on the guilt of the appellant - Conviction of the appellant
of offences under ss.376, 302, 201 IPC and ss.5/6 POCSO is upheld.
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Sentence/Sentencing: Rape and murder of seven year old girl
child - The heinous nature of crime like that of present one, in
brutal rape and murder of a seven-year-old girl child, definitely
discloses aggravating circumstances, particularly when the manner
of its commission shows depravity and shocks the conscience - But,
at the same time, considering that appellant had no criminal
antecedents, came from a very poor socio-economic background,
having a family comprising of wife, children and aged father, and
unblemished jail conduct, probability of reformation and
rehabilitation of the appellant is not ruled out - Therefore, case is
treated to not fall in 'rarest of rare' category - Yet, the impact of the
offences in question on the conscience of the society as a whole
cannot be ignored - Appellant was about 33-34 years of age at the
time of commission of crime in the year 2015 - Looking to the overall
facts and circumstances, it is held just and proper to award the
punishment of imprisonment for life to the appellant for the offence
under s.302 IPC while providing for actual imprisonment for a
minimum period of 30 years - Penal Code, 1860 - ss. 376, 302,
201 - Protection of Children From Sexual Offences Act 2012 - ss.
5, 6.
Evidence: Child witness - Rural background of witness -
Discrepancies in evidence - In the process of appreciation of
evidence, trial court and High Court looked at the crux of the matter
emerging from her testimony that she was indeed a witness to the
fact that the deceased child was last seen in the company of the
appellant when he took her along towards lychee farm - The
testimony of child witness is categorical in regard to the facts and
there appears no reason to disbelieve her testimony, even if her
comprehension of time and hours appears to be wanting in maturity
- It would be rather unrealistic to expect such maturity from a tenyear-old child coming from a rustic background.
Constitution of India: Art.134 and Art.136 - Concurrent
Finding - Interference - Scope - As against any judgment/final
order or sentence in a criminal proceeding of the High Court,
regular appeals to Supreme Court are envisaged in relation to the
eventualities specified in Art.134 of the Constitution of India and
s.2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 - The present matter is not covered thereunder
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- Present appeals are by special leave in terms of Art.136 of the
Constitution of India - In an appeal by special leave, where the
trial court and the High Court concurrently returns findings of fact
after appreciation of evidence, each and every finding of fact cannot
be contested nor such an appeal could be dealt with as if another
forum for reappreciation of evidence - Of course, if the assessment
by trial court and the High Court could be said to be vitiated by
any error of law or procedure or misreading of evidence or in
disregard to the norms of judicial process leading to serious
prejudice or injustice, Supreme Court may, and in appropriate cases
would, interfere in order to prevent grave or serious miscarriage of
justice but, such a course is adopted only in rare and exceptional
cases of manifest illegality.
Partly allowing the appeals, the Court
HELD: 1. It is but clear that as against any judgment/final
order or sentence in a criminal proceeding of the High Court,
regular appeals to this Court are envisaged in relation to the
eventualities specified in Article 134 of the Constitution of India
and Section 2 of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970. The present one is not a
matter covered thereunder and the present appeals are by
special leave in terms of Article 136 of the Constitution of India.
In such an appeal by special leave, where the Trial Court and
the High Court have concurrently returned the findings of fact
after appreciation of evidence, each and every finding of fact
cannot be contested nor such an appeal could be dealt with as if
another forum for reappreciation of evidence. Of course, if the
assessment by the Trial Court and the High Court could be
said to be vitiated by any error of law or procedure or
misreading of evidence or in disregard to the norms of judicial
process leading to serious prejudice or injustice, this Court may,
and in appropriate cases would, interfere in order to prevent
grave or serious miscarriage of justice but, such a course is
adopted only in rare and exceptional cases of manifest illegality.
Tersely put, it is not a matter of regular appeal. This Court would
not interfere with the concurrent findings of fact based on pure
PAPPU v. THE STATE OF UTTAR PRADESH
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appreciation of evidence nor it is the scope of these appeals
that this Court would enter into reappreciation of evidence so
as to take a view different than that taken by the Trial Court
and approved by the High Court. [Para 20][65-F-H; 66-A-C]
Pritam Singh v. State: AIR 1950 SC 169: 1950 SCR
453; Ramaniklal Gokaldas and Ors. v. State of Gujarat:
(1976) 1 SCC 6; Mst. Dalbir Kaur and Ors. v. State of
Punjab: (1976) 4 SCC 158 : [1977] 1 SCR 280; Hari
& Anr. v. The State of Uttar Pradesh: Criminal Appeal
No. 186 of 2018 decided on 26.11.2021 - relied on.
2. The Trial Court and the High Court have concurrently
recorded the findings that the prosecution has been able to
successfully establish the chain of circumstances leading to
unmistakable conclusion that the appellant is guilty of the offences
of rape and murder of the victim child as also of concealing her
dead body. The facts and factors, taken together with the medical
and other scientific evidence, are said to be of a complete chain
of circumstances, leading to the conclusion on the guilt of the
appellant. [Para 21][66-C-D, F]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Hanumant v.
State of Madhya Pradesh: AIR 1952 SC 343: [1952]
SCR 1091 - relied on.
3. It is true that the child-witness PW-3 stated as if she had
gone to the site and looked at the dead body at 10:00 a.m. in the
morning but then, the said child- witness was about 10 years of
age at the time of her deposition and was coming from a rural
background. Her comprehension of timings had obviously been
crude or amateurish, which is borne out of the fact that in the
other part of statement, she stated that after 7 p.m., she and other
children kept on playing for 5 hours. Such a narrative about the
timing by her had obviously been lacking in the requisite maturity
and comprehension. In the process of appreciation of evidence,
the Trial Court and High Court have looked at the crux of the
matter emerging from her testimony that she was indeed a witness
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to the fact that the deceased child was last seen in the company
of the appellant when he took her along towards lychee farm.
[Para 24.2][75-D-F]
State of Rajasthan v. Kashi Ram: (2006) 12 SCC 254 :
[2006] 8 Suppl. SCR 501 - relied on.
D.K. Basu v. State of W.B.: (1997) 1 SCC 416 : [1996]
10 Suppl. SCR 284; Rammi Alias Rameshwar v. State
of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1 -
held inapplicable.
4. The overt assertion made in the complaint by PW-1,
mother of the victim child, that as per her belief, the child was
raped and murdered and the dead body was concealed by the
appellant, is also required to be visualised with reference to
the backdrop that she had the knowledge about the appellant
having taken her daughter in the evening and had been searching
for her daughter for the whole night. This is coupled with the
fact that she was undoubtedly a rustic villager and even got the
complaint scribed from someone else. Again, in the process of
appreciation of evidence, the Trial Court and High Court have
looked at the substance and core of the matter emerging from
her testimony while consciously taking note of her background.
Yet further, as to who accompanied PW-1 to Police Station is not
a factor for which, the FIR could be taken as ante-timed. PW-1
and PW-2 had been consistent that both of them had gone to
the Police Station before the noon hours of 14.05.2015. It has,
of course, appeared in the statements of PW-7 that PW-4 had
accompanied PW-1 to Police Station but, such a minor
discrepancy occurring in the statement of the said police officer
posted at the Police Station concerned cannot override the entire
evidence on record. Moreover, he had been the person who
registered the FIR and there had not been any specific
suggestion to this witness that dead body had been seen by
anyone before lodging of FIR. Similarly, PW-8, the IO initially
stated in the cross-examination that he took the statement of
the complainant next day after taking over investigation but
thereafter, corrected himself to say that he took her statement
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at about 2.00 p.m. after registration of the case. This aspect has
also been duly taken note of by the Trial Court and the
contentions urged on behalf of the appellant have been rejected
with reference to the fact that the IO had deposed from memory
after one and a half year of the investigation; and PW-7 has
clarified that the statement of the complainant was taken by the
SHO at the date of registration of FIR and thereafter, he
proceeded to investigate. Further, even if the particulars
regarding date and time of dispatch of FIR to the Court were
not stated in the form, that could only be regarded as a procedural
fault on the part of the staff of the Police Station and that cannot
nullify all other material on record.[Paras 24.3, 24.4][75-F-H;
76-A-E]
5. There is no infirmity in the Trial Court and the High
Court concurrently finding the prosecution case proved that on
13.05.2015, at around half past six in the evening, while the
deceased was playing with PW-3 and other children of the village,
appellant gave Rs. 20 to PW-3, for buying sweets for the children.
After distributing these sweets amongst them, the deceased was
lured by appellant by suggesting that they go together and pluck
lychees from the farm. When the other children sought to follow
them, he sent them away by scolding them, picked and placed
the deceased on his back, and set off towards the farm. The
testimony of child witness PW-3 is categorical in regard to these
facts and there appears no reason to disbelieve her testimony,
even if her comprehension of time and hours appears to be
wanting in maturity. It would be rather unrealistic to expect such
maturity from a ten-year-old child coming from a rustic background.
PW-2, the maternal aunt of the deceased, has also corroborated
PW-3 in regard to these crucial facts, establishing that the
deceased was last seen with the appellant. In fact, the evidence
has been categorical that it was the appellant alone who enticed
the deceased to go along with him and rather carried the deceased
child on his back. PW-2 has also testified to the fact that she saw
the appellant taking the deceased child from the window of the
house while standing and PW-1, mother of the deceased child
was sitting. This explains even the statement of PW-1 that she
had also seen the appellant taking the deceased child. The
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submission that why these women allowed the child to taken in
the evening by a man they described as alcoholic is, again, only
an attempt at hair-splitting exercise in the matter of appreciation
of evidence. In the rural background, where the appellant was a
neighbour and a person of the same community, there could not
have been any reason for the ladies to suspect the intent of the
appellant towards the child. The assertion that the ladies searched
for the child for the whole night cannot be a cooked-up story
because, if the seven-year-old girl child did not return home until
late hours, they were, obviously, expected to look for the child.
The fact that while searching, they indeed reached the house of
the appellant, where his wife stated about his having gone out
after quarrelling, has also been consistently stated by PW-1 and
PW-2. Of course, PW-2 stated about herself having met the
appellant past midnight but, also made it clear that PW-1 was not
with her at that time. It is also given out that the ladies could not
take steps for approaching the police because at the relevant
point of time i.e., during the night intervening, they were not
having any person of support with them. [Para 27][78-E-H; 79A-E]
6. So far as the factum of discovery of the dead body of the
victim child at the information of appellant is concerned, the same
stands proved by the evidence of relevant witnesses including
PW-4 and PW-8 IO. The IO of this case seems to have not
meticulously prepared the papers of investigation and even the
memorandum of discovery of dead body and arrest of the appellant
was prepared as one document (Ex. Ka-2). However, a perusal
of the said document Ex. Ka-2, duly proved by the relevant
witnesses including PW-4 and PW-8 IO, makes it clear that the
relevant facts stand established therefrom and cannot be ignored.
Mere irregularity in preparation of memos by the IO would not
falsify the factum of information by the accused- appellant leading
to the discovery of the dead body. [Para 28][79-F-H]
7. When 'last seen' evidence is cogent and trustworthy
which establishes that the deceased was lastly seen alive in the
company of the accused; and is coupled with the evidence of
discovery of the dead body of deceased at a far away and lonely
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place on the information furnished by the accused, the burden is
on the accused to explain his whereabouts after he was last seen
with the deceased and to show if, and when, the deceased parted
with his company as also the reason for his knowledge about the
location of the dead body. The appellant has undoubtedly failed
to discharge this burden. For the appellant having failed to do so,
it is inevitable to hold that he failed to discharge the burden cast
upon him by Section 106 of the Evidence Act. This circumstance,
therefore, provides another strong link in the chain of
circumstances against the appellant. In the given set of
circumstances, it could safely be said that the presumption
contemplated by Section 29 POCSO came into operation and the
burden came staying with the appellant; and it was for him to
rebut the presumption and to prove that he had not committed
the offence. The appellant has failed to discharge this burden.
[Paras 31, 32][80-D-G, H; 81-A]
Noor Aga v. State of Punjab and Anr.: (2008) 16 SCC
417 : [2008] 10 SCR 379; Justin v. Union of India and
Ors.: 2020 SCC OnLine Ker 4956; Raj Kumar Singh
Alias Raju Alias Batya v. State of Rajasthan: (2013) 5
SCC 722 : [2013] 8 SCR 599 - held inapplicable.
8. The Forensic Science Laboratory had reported that
traces of 'spermatozoa and sperms' were found on the underwear
of the deceased. Even if the said report was drawn on 10.08.2016,
its veracity cannot be doubted and there is no reason to consider
the said report with suspicion. The relevant articles were indeed
sealed as proved in evidence and did reach the laboratory in the
same sealed condition. The alleged want of upgraded and
sophisticated facilities for sealing of the articles at the Police
Station cannot override and nullify the proceedings otherwise
lawfully conducted by the Police Station and the Investigating
Officer. In any case, it is also far-stretched to argue that the offence
under Section 376 IPC could not have been imputed in the chargesheet before receiving such report. The said report was only
corroborative scientific evidence but the other facts directly
available on record, more particularly as per the conditions of
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the dead body of the seven-year-old girl child, as seen at the site
and then the relevant aspects of gruesome injuries, including
those on private parts, as reported in the post-mortem report,
could not have been ignored. [Para 35][82-A-D]
Ramesh Chandra Agrawal v. Regency Hospital Limited
and Ors. (2009) 9 SCC 709:[2009] 14 SCR 424 - held
inapplicable.
9. A rather strange line of submission in this case has been
that as per post- mortem report, the death had occurred 2-3 days
before examination and that opinion would take the time of death
even much before the evidence of last seen or that the dead body
might have been seen by other persons much before its recovery
at the instance of the appellant. The approximate time of death
before examination, as indicated in the post-mortem report,
cannot be applied as something of mathematical precision. The
post-mortem examination was conducted in the afternoon of
15.05.2015; and approximation of two days before such
examination matches the proven time when the deceased was
last seen with the appellant i.e., around 6:30 p.m. on 13.05.2015.
In fact, the indications in the post-mortem report are only to the
effect that the appellant did not provide any time to the child and
rather carried out his misdeeds immediately after taking her along.
[Para 36][82-E-G]
10. It could readily be seen that while this Court has found
it justified to have capital punishment on the statute to serve as
deterrent as also in due response to the society's call for
appropriate punishment in appropriate cases but at the same time,
the principles of penology have evolved to balance the other
obligations of the society, i.e., of preserving the human life, be it
of accused, unless termination thereof is inevitable and is to serve
the other societal causes and collective conscience of society.
This has led to the evolution of 'rarest of rare test' and then, its
appropriate operation with reference to 'crime test' and 'criminal
test'. The delicate balance expected of the judicial process has
also led to another mid-way approach, in curtailing the rights of
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remission or premature release while awarding imprisonment for
life, particularly when dealing with crimes of heinous nature like
the present one. [Para 41][98-C-E]
11. The heinous nature of crime like that of present one, in
brutal rape and murder of a seven-year-old girl child, definitely
discloses aggravating circumstances, particularly when the
manner of its commission shows depravity and shocks the
conscience. But, at the same time, it is noticeable that the
appellant has no criminal antecedents, comes from a very poor
socio-economic background, has a family comprising of wife,
children and aged father, and has unblemished jail conduct. When
all these factors are added together and it is also visualised that
there is nothing on record to rule out the probability of reformation
and rehabilitation of the appellant, it would be unsafe to treat this
case as falling in 'rarest of rare' category. Putting it differently,
when the appellant is not shown to be a person having criminal
antecedents and is not a hardened criminal, it cannot be said that
there is no probability of him being reformed and rehabilitated.
His unblemished jail conduct and having a family of wife, children
and aged father would also indicate towards the probability of his
reformation. However, and even when the present case is taken
to be not falling in the category of 'rarest of rare' so as to require
termination of the life of the appellant yet, the impact of the
offences in question on the conscience of the society as a whole
cannot be ignored. Thus, it appears just and proper to apply the
course adopted in various cases involving the crimes of similar
nature where, even while commuting capital punishment, this
Court has provided for life imprisonment without application of
the provisions of premature release/remission before mandatory
actual imprisonment for a substantial length of time. The appellant
was about 33-34 years of age at the time of commission of crime
in the year 2015. Looking to the overall facts and circumstances,
it would be just and proper to award the punishment of
imprisonment for life to the appellant for the offence under Section
302 IPC while providing for actual imprisonment for a minimum
period of 30 years. [Paras 43.1, 44, 45][99-F-H; 100-A-B, E-H]
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12. The conviction of the appellant of offences under
Sections 376, 302, 201 IPC and Section 5/6 POCSO is upheld
and the sentences awarded to him are confirmed except the death
sentence for the offence under Section 302 IPC. The death
sentence awarded to the appellant for the offence under Section
302 IPC is commuted into that of imprisonment for life, with the
stipulation that the appellant shall not be entitled to premature
release or remission before undergoing actual imprisonment for
a period of 30 (thirty) years. [Para 46][101-A-C]
Union of India v. V. Sriharan Alias Murugan and Ors.:
(2016) 7 SCC 1: [2015] 14 SCR 613 -followed.
Kalu Khan v. State of Rajasthan: (2015) 16 SCC 492;
Bachan Singh v. State of Punjab: (1980) 2 SCC 684;
Mohd. Mannan Alias Abdul Mannan v. State of Bihar:
(2019) 16 SCC 584: [2019] 8 SCR 266; Rajendra
Pralhadrao Wasnik v. State of Maharashtra: (2019) 12
SCC 460: [2018] 14 SCR 585; Machhi Singh and Ors.
v. State of Punjab: (1983) 3 SCC 470 : [1983] 3 SCR
413 Dhananjoy Chatterjee Alias Dhana v. State of W.B.:
(1994) 2 SCC 220 : [1994] 1 SCR 37; M. A. Antony v.
State of Kerala: 2018 SCC OnLine SC 2800; Laxman
Naik v. State of Orissa: (1994) 3 SCC 381 : [1994] 2
SCR 94 Kamta Tiwari v. State of M.P.: (1996) 6 SCC 250
: [1996] 5 Suppl. SCR 507; Swamy Shraddananda (2)
v. State of Karnataka: (2008) 13 SCC 767 : [2008] 11
SCR 93; Jagmohan Singh v. State of U.P. (1973) 1 SCC
20 : [1973] 2 SCR 541; Rameshbhai Chandubhai Rathod
v. State of Gujarat : (2009) 5 SCC 740 : [2009] SCR
1055 Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat : (2011) 2 SCC 764 : [2011] 1 SCR 829; Ashok
Debbarma Alias Achak Debbarma v. State of Tripura:
(2014) 4 SCC 747 : [2014] 4 SCR 287; Shatrughna
Baban Meshram v. State of Maharashtra: (2021) 1 SCC
596; Ravishankar Alias Baba Vishwakarma v. State of
Madhya Pradesh: (2019) 9 SCC 689 : [2019] 14 SCR
285; Shankar Kisanrao Khade v. State of Maharashtra:
(2013) 5 SCC 546 : [2013] 6 SCR 949- relied on.
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Sudarshan and Anr. v. State of Maharashtra: (2014)
12 SCC 312 [2014] 6 SCR 437; Anjan Kumar Sarma
and Ors. v. State of Assam: (2017) 14 SCC 359 : [2017]
SCR 991; State (NCT of Delhi) v. Navjot Sandhu: (2005)
11 SCC 600 : [2005] 2 Suppl. SCR 79; Aghnoo Nagesia
v. State of Bihar: [1966] 1 SCR 134; Abdulwahab
Abdulmajid Baloch v. State of Gujarat: (2009) 11 SCC
625 : [2009] 4 SCR 956; Gudda Alias Dwarikendra v.
State of Madhya Pradesh (2013) 16 SCC 596 : [2013]
11 SCR 293; Inspector of Police, Tamil Nadu v. John
David: (2011) 5 SCC 509 : [2011] 7 SCR 354 - referred
to.
Case Law Reference
[2014] 6 SCR 437
referred to
Para 12.7
[1985] 1 SCR 88
relied on
Para 22.1
[2017] SCR 991
referred to
Para 12.7
[2005] 2 Suppl. SCR 79
referred to
Para 12.7
[1996] 10 Suppl. SCR 284
held inapplicable
Para 24.5
[1999] 3 Suppl. SCR 1
held inapplicable
Para 24.5
[2013] 8 SCR 599
held inapplicable
Para 33
[1966] 1 SCR 134
referred to
Para 12.7
[2009] 4 SCR 956
referred to
Para 12.7
[2009] 14 SCR 424
held inapplicable
Para 35
[2008] 10 SCR 379
held inapplicable
Para 32
(1980) 2 SCC 684
relied on
Para13.2
[2019] 8 SCR 266
relied on
Para 13.2
[2018] 14 SCR 585
relied on
Para 13.3
[2013] 11 SCR 293
referred to
Para 13.4.2
(2015) 16 SCC 492
relied on
Para 40.9
A
B
C
D
E
F
G
H
25
(2021) 1 SCC 596
relied on
Para 13.4.4
[2019] 14 SCR 285
relied on
Para 13.4.4
[2015] 14 SCR 613
followed
Para 40.5
[2011] 7 SCR 354
referred to
Para 15.1
[2006] 8 Suppl. SCR 501
relied on
Para 22.13
[2013] 6 SCR 949
relied on
Para 16.1
[1983] 3 SCR 413
relied on
Para 16.2
[1994] 1 SCR 37
relied on
Para 16.2
[1996] 5 Suppl. SCR 507
relied on
Para 16.2
[2008] 11 SCR 93
relied on
Para 17
[1950] SCR 453
relied on
Para 19.2
(1976) 1 SCC 6
relied on
Para 19.3
[1977] 1 SCR 280
relied on
Para 19.4
[1952] SCR 1091
relied on
Para 22.1
[1973] 2 SCR 541
relied on
Para 40.1.1
[2009] SCR 1055
relied on
Para 40.4
[2011] 1 SCR 829
relied on
Para 40.4
[2014] 4 SCR 287
relied on
Para 40.7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1097-1098 of 2018.
From the Judgment and Order dated 06.10.2017 of the High Court
of Judicature at Allahabad in Reference No.13 of 2016 and Capital Case
No.6601 of 2016.
Siddhartha Dave, Sr. Adv., Ms. Jemtiben AO, Vibhor Jain, Ms.
Sakshi Jain, Ms. Vidhi Thaker, Siddharth, Amit Kumar Agarwal, Advs.
for the Appellant.
Vinod Diwakar, AAG, Ms. Alka Sinha, B. N. Dubey, Anuvrat
Sharma, Advs. for the Respondent.
PAPPU v. THE STATE OF UTTAR PRADESH
A
B
C
D
E
F
G
H
26
SUPREME COURT REPORTS
[2022] 2 S.C.R.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Table of Contents*
Preliminary...................................................................................2
Relevant factual and background aspects....................................6
Prosecution Evidence..................................................................9
Defence Version and Evidence.................................................19
Trial Court found the appellant guilty and awarded death
sentence......................................................................................19
High Court confirmed the death sentence awarded to
the appellant.................................................................................24
Rival Submissions........................................................................28
The scope and width of these appeals...........................................46
Concurrent findings of fact: whether requiring interference
in these appeals..........................................................................52
Whether death sentence be maintained or substituted by
any other sentence....................................................................76
Conclusion.................................................................................96
Preliminary
1. These appeals by special leave are directed against the judgment
and order dated 06.10.2017 in Reference No. 13 of 2016 and Capital
Case No. 6601 of 2016 whereby, the High Court of Judicature at
Allahabad has affirmed the judgment and order dated 07/08.12.2016 in
Sessions Case No. 414 of 2015, as passed by the Additional Sessions
Judge, Court No. 2, Kushinagar; and, while upholding the conviction of
the appellant of offences punishable under Sections 376, 302, 201 of the
Indian Penal Code, 18601 and Section 5/6 of the Protection of Children
from Sexual Offences Act, 20122, has confirmed the death sentence
awarded to him for the offence under Section 302 IPC.
*The Table of Contents is as per the Original Judgment.
1 'IPC', for short.
2 'POCSO', for short.
A
B
C
D
E
F
G
H
27
1.1. In addition to sentence of death for the offence under Section
302 IPC, the appellant has also been punished with fine of Rs. 20,000/-
for the offence under Section 302 IPC. This apart, he has been awarded
the punishments of rigorous imprisonment for a term of 10 years and
fine of Rs. 10,000/- for the offence under Section 376 IPC; rigorous
imprisonment for a term of 7 years and fine of Rs. 5,000/- for the offence
under Section 201 IPC; and rigorous imprisonment for a term of 10
years and fine of Rs. 10,000/- for the offence under Section 5/6 POCSO.
While providing for further imprisonment in case of non-payment of fine
amount, it has also been directed that half of the fine amount shall be
given to the mother of deceased girl as compensation.
2. In these appeals, the conviction of the appellant as also the
punishment awarded to him, particularly the capital punishment, are under
challenge. Before dealing with the matter in necessary details, we may
draw a brief sketch to indicate the contours of the forthcoming discussion.
2.1. The appellant has been accused of enticing a seven-year-old
girl to accompany him on the pretext of picking lychee fruits; having
thereafter committed rape upon the child; having caused her death; and
having dumped the dead body near a bridge on the riverbank, after having
dragged the dead body over a distance of one and one-quarter kilometres.
2.2. The prosecution case rested on circumstantial evidence to
the effect that the victim was lastly seen in the company of the appellant;
that her dead body was recovered at the instance of the appellant; that
the appellant had failed to satisfactorily explain his whereabouts and his
knowledge of the location of dead body; and that the medical and other
scientific evidence was consistent with the accusation. Per contra, the
appellant alleged that he was falsely implicated due to enmity with the
families of the deceased and other witnesses because of a land dispute.
2.3. The Trial Court, after analysing the material placed on record,
came to the conclusion that the prosecution had been able to substantiate
the charges by proving beyond doubt that the appellant had taken the
deceased with himself by enticing her to pluck and eat lychee fruits,
committed rape and then murdered her, and concealed the dead body in
bushes near the riverbank. Thus, the appellant was convicted by the
judgment dated 07.12.2016. Next day, the learned Additional Sessions
Judge heard the accused and the prosecution on the question of sentence;
and looking to the heinous crime committed by the appellant, found it
unjustified to show any mercy in punishment and thus, awarded varying
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
28
SUPREME COURT REPORTS
[2022] 2 S.C.R.
punishments, including that of death sentence for the offence under
Section 302 IPC.
2.4. The sentence of death was submitted for confirmation to the
High Court in terms of Section 366 of the Code of Criminal Procedure,
19733. On the other hand, the accused-appellant preferred an appeal
against the judgment and order of the Trial Court. Both, the reference
case for confirmation of death sentence and the appeal preferred by the
appellant, were considered together, where the High Court found no
reason to disbelieve the evidence led by the prosecution; and while
rejecting the defence story of wrongful prosecution for enmity due to
land dispute, affirmed the findings on conviction of the appellant. The
High Court further dealt with the question of sentence and with reference
to the nature of offence, in brutal rape and murder of a seven-year-old
girl child, found the present one to be 'rarest of rare case', where the
sentence of death was considered 'eminently desirable'. The High Court,
accordingly, dismissed the appeal filed by the appellant and confirmed
the punishment awarded to him, including the sentence of death.
2.5. In the present appeals, conviction of the appellant has been
questioned essentially with the contentions that the relevant factors are
indicative of ante-dating of the FIR; that the prosecution has not been
able to prove that the deceased was last seen with the appellant; that the
story of discovery of dead body at the instance of the appellant was also
not established; and that the medical and forensic evidence was not
conclusive to connect the appellant with the crime. The sentence awarded
to the appellant has also been put to question, essentially with the
submissions that the Trial Court as also the High Court have not examined
the mitigating circumstances existing in this matter, including that it is a
case of weak chain of circumstances; and that the appellant is having no
criminal antecedent and comes from a poor socio-economic background
with family members, including wife and children, being dependent on
him. Per contra, it is contended on behalf of the respondent that
concurrent findings on the guilt of the appellant, based on proper
appreciation of facts, call for no interference. It is also submitted that
the abhorrent nature of the crime justifies the death sentence in the
present case where the appellant, a grown-up person of about 35 years
of age, enticed a seven-year-old girl child and committed brutal rape and
murder.
3 'CrPC', for short.
A
B
C
D
E
F
G
H
29
2.6. Thus, two major points would arise for determination in these
appeals: first, as to whether the conviction of the appellant calls for any
interference; and second, if the conviction of the appellant is maintained,
as to whether the sentence of death awarded to the appellant deserves
to be maintained or deserves to be substituted by any other sentence?
3. With the aforesaid outline, we may take note of the relevant
factual and background aspects in necessary details.
Relevant factual and background aspects
4. The prosecution in the present case had its foundation in a
complaint (Ex. Ka-1) submitted by PW-1 Nisha wife of Manoj Harijan,
at Police Station Kasya, District Kushinagar on 14.05.2015 at about
12:35 p.m., with the allegations that the previous evening, at around 06:30
p.m., her seven-year-old daughter, when playing with other kids of
neighbourhood, was taken by the appellant Pappu towards southern side
of the house on the pretext of plucking lychee,while shooing away other
children; and her sister PW-2 Anita and many neighbours had seen the
appellant Pappu taking her daughter. The complainant further stated
that after turning dark, she searched for her daughter who was not found
anywhere and the appellant Pappu was also not found. The complainant
also stated her strong apprehension that the appellant had committed
rape on her daughter, caused her death, and concealed the dead body.
On the basis of this complaint, FIR No. 840 of 2015 (Ex. Ka-13) came
to be registered for offences under Sections 376, 302, 201 IPC and
Sections 3/4 POCSO. The complaint so made by PW-1 Nisha, on which
the said FIR was registered, has its own relevance on the questions
sought to be raised in this matter. Therefore, the translated version of
the same is reproduced for ready reference as under4-5: -
4 It may be indicated that the relevant documents and depositions in the original record
of this case are in Hindi language. The translated versions in English language, as placed
before us, carry several obvious errors where the words and even sentences are rather
incomprehensible. We have scanned through the record with the assistance of learned
counsel for the parties; and the extractions in this judgment are, as far as feasible, near
to the correct translation and meaning of the text in original.
5 Having regard to the nature of case, the name of victim has been omitted in the
extractions and at all other places in this judgment; and substituted by the expression
'Am'.
PAPPU v. THE STATE OF UTTAR PRADESH
[DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
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30
SUPREME COURT REPORTS
[2022] 2 S.C.R.
"To,
The SHO,
PS-Kasya
Sir,
It is requested that complainant Nisha w/o Shri Manoj,
caste-Harijan is a r/o village- Sabaya Khas, PS- Kasya, DistrictKushinagar. Yesterday evening i.e. on 13.05.2015 my daughter
Am aged around 7 years was playing with neighbour Rajendra
Dhobi's daughter Ashna, Mishri's daughter Rinku and other kids
of neighbourhood near the home. At around 6:30 o'clock, native
of my village and of my caste Pappu s/o Shri Ram Preet took my
daughter Am with him towards the southern side of home on the
pretext of plucking lychee. He gave toffee to other children of
neighbourhood playing with her and shooed them off the spot. My
younger sister Anita and many neighbours had seen Pappu taking
away my daughter. After sometime when it turned dark, I started
to search my daughter. Children who were playing with her, my
sister Anita and neighbours told that Pappu had taken her in the
orchard of lychee towards the south. I went to the house of Pappu
where he could not be found. I kept searching my daughter but
nothing could be known. I am damn sure that Pappu had taken
my daughter Am with him on the pretext of plucking lychee and
he committed rape on her, caused her death and concealed her
corpse at some lonely place. It is requested that report be lodged
and appropriate action be taken.
Complainant
Sd/- Nisha
Name- Nisha w/o Manoj Harijan
Village- Sabya Khas
PS- Kasya
District- Kushinagar
Date- 14.05.2015"
5. According to the prosecution, after registration of FIR, the
investigation was taken over by the Station House Officer6 of Police
6 'SHO', for short.
A
B
C
D
E
F
G
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31
Station Kasya, Gyanendra Nath Shukla (PW-8)7; the statement of PW1 Nisha was recorded; and a search was mounted for the appellant. The
SHO obtained information on the whereabouts of the appellant and acting
upon such information, found the appellant near the Community Health
Centre. It has been the case of prosecution that on being questioned, the
appellant disclosed the place of incident as also the location where body
of the daughter of the complainant had been dumped near the bridge on
the banks of the river Hiranmati. On the basis of his disclosure, the
corpse was recovered along with clothes of the deceased. The
Investigating Officer prepared the necessary memos, plans and reports
and sent the dead body for post-mortem examination. A few aspects
related with preparation of such memos and reports have also been put
to question in this matter on behalf of the appellant, which we shall
examine hereafter later.
5.1. In the post-mortem conducted by PW-6 Dr.