# RAVI S/O ASHOK GHUMARE v. THE STATE OF MAHARASHTRA

- **Citation:** [2019] 15 S.C.R. 712
- **Court:** Supreme Court of India
- **Decided:** 2019-10-03
- **Case number:** Criminal Appeal Nos. 1488-1489 of 2018
- **Bench:** R. F. Nariman, Surya Kant, R. Subhash Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravi-s-o-ashok-ghumare-v-the-state-of-maharashtra-33889
- **Pages:** 59

## Headnote

Penal Code, 1860: ss.302, 363, 376 and 377 - Kidnapping,
rape/unnatural intercourse and murder of two year old girl -
Prosecution case was that on the fateful day, the victim child went
missing around 4.00 p.m. - During the search operations by police
and family members of the missing child, it surfaced that the
appellant was seen distributing chocolates to children around the
time the child went missing - Police reached the house of appellant
and nabbed the appellant red handed under the bed with the victim
child in naked condition - Trial court and High Court concurrently
held him guilty and awarded death sentence - Appeal against
conviction and sentence - Held: It stood conclusively established
that the victim child was brutally assaulted and subjected to vaginal
and unnatural intercourse - She was inflicted multiple injuries on
face, head, neck, external genitalia as well as inside the uterus
and urethra - Medical opinion was that death was due to throttling
- There was overwhelming eye-witness account, circumstantial
evidence, medical evidence and DNA analysis on record which
conclusively proved that it was appellant and he alone, who
committed the horrendous crime - Appellant had the special
knowledge as to in what circumstances the victim child suffered
multiple injuries - Burden to prove that those injuries were not
caused by him was on the appellant alone in view of s.106 of the
Evidence Act, which he miserably failed to discharge though the
evidence on record proved beyond doubt that the victim child was
in unlawful custody of the appellant from about 4.00 p.m. till she
breathed her last breath due to the beastly attack on her -
Conviction of appellant is upheld - Protection of Children from
Sexual Offences Act, 2012 - Protection of Children from Sexual
Offences Amendment Act, 2019.
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 [2019] 15 S.C.R. 712
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Sentence/Sentencing: Death sentence - Rape and murder of
two year old girl - Prayer for commutation of death sentence -
Held: The victim in this case was barely a two-year old baby girl
whom the appellant kidnapped and apparently kept on assaulting
over 4-5 hours till she breathed her last - Appellant who had no
control over his carnal desires surpassed all natural, social and
legal limits just to satiate his sexual hunger - He ruthlessly finished
a life which was yet to bloom - He, instead of showing fatherly
love, affection and protection to the child against the evils of the
society, rather made her the victim of lust - It's a case where trust
was betrayed and social values were impaired - The unnatural sex
with a two-year old toddler exhibits a dirty and perverted mind,
showcasing a horrifying tale of brutality - The appellant
meticulously executed his nefarious design by locking one door
of his house from the outside and bolting the other one from the
inside so as to deceive people into believing that nobody was inside
- He was thus in his full senses while he indulged in this senseless
act - He showed no remorse or repentance for the gory crime,
rather he opted to remain silent in his 313 Cr.P.C. statement - His
deliberate, well-designed silence with a standard defence of 'false'
accusation revealed his lack of kindness or compassion and would
lead to believe that he can never be reformed - That being so, case
for interference with the death sentence is not made out - Protection
of Children from Sexual Offences Act, 2012 - Penal Code, 1860
- ss.302, 363, 376 and 377.
Criminal Law: Evidence - Motive - Though the High Court
observed that 'satisfaction of lust' and 'removal of trace' was the
appellant's motive but motive is not an explicit requirement under
the Indian Penal Code, though 'motive' may be helpful in proving
the case of the prosecution in a case of circumstantial evidence -
The case in hand was not entirely based on circumstantial evidence
as there were reliable eye-witness depositions who had seen the
appellant committing the crime, may be in part - Such an
unshakable evide

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SUPREME COURT REPORTS
[2019] 15 S.C.R.
RAVI S/O ASHOK GHUMARE
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1488-1489 of 2018)
OCTOBER 03, 2019
[R. F. NARIMAN, SURYA KANT
AND R. SUBHASH REDDY, JJ.]
Penal Code, 1860: ss.302, 363, 376 and 377 - Kidnapping,
rape/unnatural intercourse and murder of two year old girl -
Prosecution case was that on the fateful day, the victim child went
missing around 4.00 p.m. - During the search operations by police
and family members of the missing child, it surfaced that the
appellant was seen distributing chocolates to children around the
time the child went missing - Police reached the house of appellant
and nabbed the appellant red handed under the bed with the victim
child in naked condition - Trial court and High Court concurrently
held him guilty and awarded death sentence - Appeal against
conviction and sentence - Held: It stood conclusively established
that the victim child was brutally assaulted and subjected to vaginal
and unnatural intercourse - She was inflicted multiple injuries on
face, head, neck, external genitalia as well as inside the uterus
and urethra - Medical opinion was that death was due to throttling
- There was overwhelming eye-witness account, circumstantial
evidence, medical evidence and DNA analysis on record which
conclusively proved that it was appellant and he alone, who
committed the horrendous crime - Appellant had the special
knowledge as to in what circumstances the victim child suffered
multiple injuries - Burden to prove that those injuries were not
caused by him was on the appellant alone in view of s.106 of the
Evidence Act, which he miserably failed to discharge though the
evidence on record proved beyond doubt that the victim child was
in unlawful custody of the appellant from about 4.00 p.m. till she
breathed her last breath due to the beastly attack on her -
Conviction of appellant is upheld - Protection of Children from
Sexual Offences Act, 2012 - Protection of Children from Sexual
Offences Amendment Act, 2019.
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Sentence/Sentencing: Death sentence - Rape and murder of
two year old girl - Prayer for commutation of death sentence -
Held: The victim in this case was barely a two-year old baby girl
whom the appellant kidnapped and apparently kept on assaulting
over 4-5 hours till she breathed her last - Appellant who had no
control over his carnal desires surpassed all natural, social and
legal limits just to satiate his sexual hunger - He ruthlessly finished
a life which was yet to bloom - He, instead of showing fatherly
love, affection and protection to the child against the evils of the
society, rather made her the victim of lust - It's a case where trust
was betrayed and social values were impaired - The unnatural sex
with a two-year old toddler exhibits a dirty and perverted mind,
showcasing a horrifying tale of brutality - The appellant
meticulously executed his nefarious design by locking one door
of his house from the outside and bolting the other one from the
inside so as to deceive people into believing that nobody was inside
- He was thus in his full senses while he indulged in this senseless
act - He showed no remorse or repentance for the gory crime,
rather he opted to remain silent in his 313 Cr.P.C. statement - His
deliberate, well-designed silence with a standard defence of 'false'
accusation revealed his lack of kindness or compassion and would
lead to believe that he can never be reformed - That being so, case
for interference with the death sentence is not made out - Protection
of Children from Sexual Offences Act, 2012 - Penal Code, 1860
- ss.302, 363, 376 and 377.
Criminal Law: Evidence - Motive - Though the High Court
observed that 'satisfaction of lust' and 'removal of trace' was the
appellant's motive but motive is not an explicit requirement under
the Indian Penal Code, though 'motive' may be helpful in proving
the case of the prosecution in a case of circumstantial evidence -
The case in hand was not entirely based on circumstantial evidence
as there were reliable eye-witness depositions who had seen the
appellant committing the crime, may be in part - Such an
unshakable evidence with dense support of DNA test did not require
the definite determination of the motive of the appellant behind the
gruesome crime.
Sentence/Sentencing: Death sentence - Doctrine of
proportionality - The object and purpose of determining quantum
of sentence has to be 'society centric' without being influenced by
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA
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[2019] 15 S.C.R.
a 'judge's' own views, for society is the biggest stake holder in
the administration of criminal justice system - A civic society has
a 'fundamental' and 'human' right to live free from any kind of
psycho fear, threat, danger or insecurity at the hands of anti-social
elements - The society legitimately expects the Courts to apply
doctrine of proportionality and impose suitable and deterrent
punishment that commensurates with the gravity of offence.
Protection of Children from Sexual Offences Act, 2012: s.5
- Protection of Children from Sexual Offences Amendment Act,
2019 - Aggravated Penetrative Sexual Assault - Punishment - The
unamended Act defines "Aggravated Penetrative Sexual Assault"
in s.5, which included, "whoever commits aggravated penetrative
sexual assault on a child below the age of 12 years" - Originally,
the punishment for an aggravated sexual assault was rigorous
imprisonment for a term not less than 10-years but which may
extend for imprisonment for life with fine - The minimum sentence
for an aggravated penetrative sexual assault has been increased
from 10 years to 20 years and imprisonment for life has now been
expressly stated to be imprisonment for natural life of the person
- Significantly, 'death sentence' has also been introduced as a
penalty for the offence of aggravated penetrative sexual assault
on a child below 12 years - The Legislature impliedly distanced
itself from the propounders of "No-Death Sentence" in "No
Circumstances" theory and re-stated the will of the people that in
the cases of brutal rape of minor children below the age of 12
years without murder of the victim, 'death penalty' can also be
imposed - In the Statement of Objects and Reasons of amendment,
Parliament has shown its concern of the fact that "in recent past
incidents of child sexual abuse cases administering the inhuman
mindset of the accused, who have been barbaric in their approach
to young victim, is rising in the country" - If the Parliament, armed
with adequate facts and figures, has decided to introduce capital
punishment for the offence of sexual abuse of a child, the Court
hitherto will bear in mind the latest Legislative Policy even though
it has no applicability in a case where the offence was committed
prior thereto - The judicial precedents rendered before the recent
amendment came into force, therefore, ought to be viewed with a
purposive approach so that the legislative and judicial approaches
are well harmonised - Crime against children - Sentence/
Sentencing.
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Administration of Criminal Justice: Punishment to the rape
accused - Sentencing Policy needs to strike a balance between
the two sides and count upon the twin test of (i) deterrent effect,
or (ii) complete reformation for integration of the offender in civil
society - Where the Court is satisfied that there is no possibility of
reforming the offender, the punishments before all things, must be
befitting the nature of crime and deterrent with an explicit aim to
make an example out of the evil-doer and a warning to those who
are still innocent - Sentence/Sentencing.
Evidence: Medical evidence - DNA - Plea of appellantaccused that the prosecution relied on the DNA evidence despite
the fact that the method of analysis used i.e. Y-Chromosome Short
Tandem Repeat Polymorphism (Y-STR) has certain inherent
limitations due to which accurate identification of accused cannot
be established beyond reasonable doubt and that the said method
did not accurately identify the accused as the perpetrator; and
unlike other methods say autosomal-STR analysis, it cannot
distinguish between male members in the same lineage - Held: Plea
is rejected - The globally acknowledged medical literature coupled
with the statement of the Assistant Director, Forensic Science
Laboratory leaves no doubt that in cases of sexual assualt, DNA
of the victim and the perpetrator are often mixed - Traditional DNA
analysis techniques like "autosomal-STR" are not possible in such
cases - Y-STR method provides a unique way of isolating only the
male DNA by comparing the Y-Chromosome which is found only
in males - It is no longer a matter of scientific debate that Y-STR
screening is manifestly useful for corroboration in sexual assault
cases and it can be well used as exculpatory evidence and is
extensively relied upon in various jurisdictions throughout the world
- Science and Researches have emphatically established that
chances of degradation of the 'Loci' in samples are lesser by this
method and it can be more effective than other traditional methods
of DNA analysis - Although Y-STR does not distinguish between
the males of same lineage, it can, nevertheless, may be used as a
strong circumstantial evidence to support the prosecution case -
Y-STR techniques of DNA analysis are both regularly used in
various jurisdictions for identification of offender in cases of
sexual assault and also as a method to identify suspects in unsolved
cases - Medical jurisprudence.
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA
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Sentence/Sentencing: Death sentence - Commutation of -
Aggravating and mitigating circumstances - Rape and murder of
two year old girl child - Held: (Per R. Subhash Reddy, J. -
dissenting on sentencing part) - In a case of conviction based on
circumstantial evidence, ordinarily the extreme punishment of death
penalty should not be imposed - If in a given case, guilt of the
accused is proved beyond reasonable doubt, by establishing chain
of circumstances, resulting in conviction, in appropriate cases
death penalty can be imposed only after considering balancing
aspects of aggravating and mitigating circumstances - But, at the
same time ordinarily, if no special reasons exist, in a case of
conviction based on circumstantial evidence, death penalty should
not be imposed - In the instant case, conviction of the appellant
was mainly based on circumstantial evidence - The evidence onrecord showed that on the day of occurrence, the appellant was
under influence of liquor and committed the offence and,
therefore, it cannot be termed as a pre-planned one, to count the
same as an aggravating circumstance, for balancing aggravating
and mitigating circumstances - The socio-economic condition of
the appellant, as a person below poverty line, can also be
considered as one of the mitigating factors, while balancing the
aggravating and mitigating factors - There was no evidence from
the side of prosecution, to show that there was no possibility of
reformation and rehabilitation of the appellant - Age of the
appellant was 25 years at the relevant time - He also had no crime
record - Thus, the mitigating circumstances of the appellant,
dominated over the aggravating circumstances, to modify the death
sentence to that of life imprisonment - In view of all these aspects,
death penalty imposed on the appellant is modified to that of life
imprisonment, for the offence under s.302 IPC - Penal Code, 1860
- s.302.
Disposing of the appeals, the Court
HELD: Per SURYA KANT, J. (for R.F. Nariman, J. and
himself)
1. During search operations by the police and also the
family members of the missing child, it surfaced that the
appellant was distributing chocolates to allure children near
Maroti Temple on that day and around that time the child went
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missing. The police-team, the father of the victim and his
brother, genuinely apprehensive and smelling something foul,
reached the house of the appellant and nabbed him red-handed
under the bed with the victim in naked condition. It further stood
established conclusively that deceased had been brutally
assaulted and subjected to vaginal and unnatural intercourse.
The victim had been inflicted multiple injuries on face, head,
neck, external genetalia as well as inside the uterus and urethra.
The appellant had the special knowledge as to in what
circumstances the victim child suffered those multiple injuries.
The burden to prove that those injuries were not caused by him
was on the appellant alone in view of Section 106 of the Evidence
Act, which he has miserably failed to discharge though the
evidence on record proves beyond doubt that the victim child
was in unlawful custody of the appellant from about 4.00 p.m.
till she breathed her last breath due to the beastly attack on her.
[Para 30] [738-C-G]
Scientific Evidence connecting the appellant with the Crime:
2.1 P.W.11 Assistant Director in Forensic Science
Laboratory (FSL), Mumbai testified that they conducted the
DNA test as per the guidelines issued by the Director of Forensic
Science, Ministry of Home Affairs, New Delhi. P.W.11
accordingly prepared the DNA report which was duly attested
by the Assistant Chemical Analyser also. On seeing the contents
of his report, P.W.11 has pertinently deposed that there were
sexual intercourse and unnatural intercourse on the victim by
the accused. The unshakable scientific evidence which nailed
the appellant from all sides, was sought to be impeached on the
premise that the method of DNA analysis "Y-STR" followed in
the instant case was unreliable. It was suggested that the said
method does not accurately identify the accused as the
perpetrator; and unlike other methods say autosomal-STR
analysis, it cannot distinguish between male members in the
same lineage. [Paras 32-34] [739-D; 740-H; 741-A-B]
2.2 The globally acknowledged medical literature coupled
with the statement of P.W.11 - Assistant Director, FSL leaves
nothing mootable that in cases of sexual assualt, DNA of the
victim and the perpetrator are often mixed. Traditional DNA
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA
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analysis techniques like "autosomal-STR" are not possible in
such cases. Y-STR method provides a unique way of isolating
only the male DNA by comparing the Y-Chromosome which is
found only in males. It is no longer a matter of scientific debate
that Y-STR screening is manifestly useful for corroboration in
sexual assault cases and it can be well used as exculpatory
evidence and is extensively relied upon in various jurisdictions
throughout the world. Science and Researches have
emphatically established that chances of degradation of the
`Loci' in samples are lesser by this method and it can be more
effective than other traditional methods of DNA analysis.
Although Y-STR does not distinguish between the males of same
lineage, it can, nevertheless, may be used as a strong
circumstantial evidence to support the prosecution case. Y-STR
techniques of DNA analysis are both regularly used in various
jurisdictions for identification of offender in cases of sexual
assault and also as a method to identify suspects in unsolved
cases. Considering the perfect match of the samples and there
being nothing to discredit the DNA analysis process, the
probative value of the forensic report as well as the statement
of P.W.11 are very high. Still further, it is not the case of the
appellant that crime was committed by some other close relative
of him. Importantly, no other person was found present in the
house except the appellant. There was thus overwhelming eyewitness account, circumstantial evidence, medical evidence and
DNA analysis on record which conclusively proved that it is the
appellant and he alone, who is guilty of committing the
horrendous crime in this case. [Paras 35, 36] [741-C-G; 742-AB]
3. Though the High Court has observed that 'satisfaction
of lust' and 'removal of trace' was the appellant's motive but
motive is not an explicit requirement under the Indian Penal
Code, though 'motive' may be helpful in proving the case of the
prosecution in a case of circumstantial evidence. The case in
hand is not entirely based on circumstantial evidence as there
are reliable eye-witness depositions who have seen the appellant
committing the crime, may be in part. Such an unshakable
evidence with dense support of DNA test does not require the
definite determination of the motive of the appellant behind the
gruesome crime. [Para 37] [742-C-E]
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SENTENCING:
4.1 The object and purpose of determining quantum of
sentence has to be 'society centric' without being influenced by
a 'judge's' own views, for society is the biggest stake holder in
the administration of criminal justice system. A civic society has
a 'fundamental' and 'human' right to live free from any kind of
psycho fear, threat, danger or insecurity at the hands of antisocial elements. The society legitimately expects the Courts to
apply doctrine of proportionality and impose suitable and
deterent punishment that commensurate(s) with the gravity of
offence. Equally important is the stand-point of a `victim' which
includes his/her guardian or legal heirs as defined in Section
2(wa), Cr.P.C. For long, the criminal law had been viewed on a
dimensional plane wherein the Courts were required to
adjudicate between the accused and the State. The `victim'-the
de facto sufferer of a crime had no say in the adjudicatory
process and was made to sit outside the court as a mute
spectator. The ethos of criminal justice dispensation to prevent
and punish `crime' would surreptitiously turn its back on the
`victim' of such crime whose cries went unheard for centuries
in the long corridors of the conventional apparatus. A few limited
rights, including to participate in the trial have now been
bestowed on a `victim' in India by the Act No. 5 of 2009 whereby
some pragmatic changes in Cr.P.C. have been made. The
Sentencing Policy, therefore, needs to strike a balance between
the two sides and count upon the twin test of (i) deterrent effect,
or (ii) complete reformation for integration of the offender in civil
society. Where the Court is satisfied that there is no possibility
of reforming the offender, the punishments before all things,
must be befitting the nature of crime and deterrent with an
explicit aim to make an example out of the evil-doer and a
warning to those who are still innocent. There is no gainsaying
that the punishment is a reflection of societal morals. The
subsistence of capital punishment proves that there are certain
acts which the society so essentially abhores that they justify the
taking of most crucial of the rights - the right to life. [Paras
50-52] [748-D-H; 749-A-B]
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA
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Ashok Debbarma v. State of Tripura (2014) 4 SCC 747
: [2014] 4 SCR 287 ; Vasanta Sampat Dupare v. State
of Maharashtra (2017) 6 SCC 631 : [2017] 3 SCR
850 - Distinguished
4.2 Recent amendments carried out by Parliament in the
Protection of Children from Sexual Offences Act, 2012 by way
of The Protection of Children from Sexual Offences
(Amendment) Act, 2019 as notified on 6th August, 2019. The
unamended Act defines "Aggravated Penetrative Sexual
Assault" in Section 5, which included, "whoever commits
aggravated penetrative sexual assault on a child below the age
of 12 years." Originally, the punishment for an aggravated sexual
assault was rigorous imprisonment for a term not less than 10years but which may extend for imprisonment for life with fine.
The minimum sentence for an aggravated penetrative sexual
assault has been increased from 10 years to 20 years and
imprisonment for life has now been expressly stated to be
imprisonment for natural life of the person. Significantly, `death
sentence' has also been introduced as a penalty for the offence
of aggravated penetrative sexualt assault on a child below 12
years. [Paras 57, 59] [752-B-C-F-G]
Khushwinder Singh v. State of Punjab, (2019) 4 SCC
415 : [2019] 3 SCR 446 ; Manoharan v. State by
Inspector of Police, Variety Hall Police Station,
Coimbatore, (2019) SCC Online 951 - relied on
4.3 The Legislature has impliedly distanced itself from the
propounders of "No-Death Sentence" in "No Circumstances"
theory and has re-stated the will of the people that in the cases
of brutal rape of minor children below the age of 12 years without
murder of the victim, 'death penalty' can also be imposed. In
the Statement of Objects and Reasons of amendment, Parliament
has shown its concern of the fact that "in recent past incidents
of child sexual abuse cases administering the inhuman mindset
of the accused, who have been barbaric in their approach to
young victim, is rising in the country." If the Parliament, armed
with adequate facts and figures, has decided to introduce capital
punishment for the offence of sexual abuse of a child, the Court
hitherto will bear in mind the latest Legislative Policy even
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though it has no applicability in a case where the offence was
committed prior thereto. The judicial precedents rendered
before the recent amendment came into force, therefore, ought
to be viewed with a purposive approach so that the legislative
and judicial approaches are well harmonised. [Para 60] [752-GH; 753-A-B]
4.4 The victim was barely a two-year old baby whom the
appellant kidnapped and apparently kept on assaulting over 4-5
hours till she breathed her last. The appellant who had no control
over his carnal desires surpassed all natural, social and legal
limits just to satiate his sexual hunger. He ruthlessly finished a
life which was yet to bloom. The appellant instead of showing
fatherly love, affection and protection to the child against the
evils of the society, rather made her the victim of lust. It's a case
where trust has been betrayed and social values are impaired.
The unnatural sex with a two-year old toddler exhibits a dirty
and perverted mind, showcasing a horrifying tale of brutality. The
appellant meticulously executed his nefarious design by locking
one door of his house from the outside and bolting the other
one from the inside so as to deceive people into believing that
nobody was inside. The appellant was thus in his full senses while
he indulged in this senseless act. Appellant has not shown any
remorse or repentance for the gory crime, rather he opted to
remain silent in his 313 Cr.P.C. statement. His deliberate, welldesigned silence with a standard defence of 'false' accusation
reveals his lack of kindness or compassion and leads to believe
that he can never be reformed. That being so, this Court cannot
write off the capital punishment so long as it is inscribed in the
statute book. [Para 61] [753-D-H]
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413 ; Bachan Singh v. State of Punjab
(1980) 2 SCC 684 - followed.
Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 ;
Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 ;
Rajindra Pralhadrao Wasnik v. State of Maharashtra
in Review Petition(Crl.) Nos. 306-307/2013 Parsuram
v. State of Madhya Pradesh (2019) 8 SCC 382 ;
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA
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SUPREME COURT REPORTS
[2019] 15 S.C.R.
Dhanjoy Chaterjee v. State of West Bengal (1994) 2
SCC 220 ; [1994] 1 SCR 37 ; Shankar Kishanrao
Khade v. State of Maharashtra (2013) 5 SCC 546 :
[2013] 6 SCR 949 ; Shivaji v. State of Maharashtra
(2008) 3 SCC 26 ; Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra (2009) 6 SCC 498 :
[2009] 9 SCR 90 ; Swamy Shraddananda @ Murli
Manohar Mishra v. State of Karnataka (2008) 13 SCC
767 : [2008] 11 SCR 93 ; Union of India v. V. Sriharan
@ Murugan & Ors. (2016) 7 SCC 1 : [2015] 14 SCR
613 - referred to.
California v. Ramos 463 U.S.992 - referred to.
Per R. SUBHASH REDDY, J. (Partly dissenting)
1. The deposition of PW-9 (father of the victim child)
showed that he was a fruit vendor, residing in Nutan Vasahat
area, Jalna and the appellant also resided in the same lane.
Further, it is also clear from his deposition that accused was
under influence of liquor, on the day of occurrence of crime.
Where it is clear from the evidence on-record that the appellant
was under influence of liquor and committed the offence, cannot
be termed as a pre-planned one, to count the same as an
aggravating circumstance, for balancing aggravating and
mitigating circumstances. Further, this case on hand rested
solely on the circumstantial evidence. In a case of conviction
based on circumstantial evidence, ordinarily the extreme
punishment of death penalty should not be imposed. In a given
case, guilt of the accused is proved beyond reasonable doubt,
by establishing chain of circumstances, resulting in conviction,
such cases, by considering balancing aspects of aggravating and
mitigating circumstances, in appropriate cases, death penalty can
be imposed. But, at the same time ordinarily, if no special reasons
exist, in a case of conviction based on circumstantial evidence,
death penalty should not be imposed. In this case on hand, the
conviction of the appellant is mainly based on circumstantial
evidence. On this ground also, the death sentence, imposed on
him, is to be modified. From such evidence on-record, it is easy
to assess the socio-economic condition of the appellant and it
can certainly be said that he is a person below poverty line and
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this can also be considered as one of the mitigating factors, while
balancing the aggravating and mitigating factors. [Paras 18, 19,
24, 28, 29, 31] [763-E; 764-B; 766-B; 767-E-G; 768-B-G]
Lehna v. State of Haryana (2002) 3 SCC 76 : [2002]
1 SCR 377 ; Sunil v. State of Madhya Pradesh (2017)
4 SCC 393 ; Rajendra Pralhaderao Wasnik v. State
of Maharashtra Review Petition (Criminal) Nos. 306307 of 2013 ; Sandesh v. State of Maharashtra (2013)
2 SCC 479 : [2012] 13 SCR 1049 ; Mohinder Singh
v. State of Punjab (2013) 3 SCC 294: [2013] 3 SCR
90 ; Sushil Sharma v. State (NCT of Delhi) (2014) 4
SCC 317 : [2013] 16 SCR 616 ; Amit v. State of
Maharashtra (2003) 8 SCC 93 : [2003] 2 Suppl. SCR
285 ; Surendra Pal Shivbalakpal v. State of Gujarat
(2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Bishnu
Prasad Sinha v. State of Assam (2007) 11 SCC 467 :
[2007] 1 SCR 916 ; Aloke Nath Dutta v. State of West
Bengal (2007) 12 SCC 230 ; Swamy Shraddananda
v. State of Karnataka (2007) 12 SCC 287 ; Sunil
Damodar Gaikwad v. State of Maharashtra (2014) 1
SCC 129 : [2013] 9 SCR 295 - relied on
2. Recent amendments are carried out to the Protection
of Children from Sexual Offences Act, 2012 by way of Protection
of Children from Sexual Offences Amendment Act, 2019. By
virtue of the said amendments, taking note of increasing trend
of crimes against the children, minimum sentence is increased
for various offences and for offence under Section 6 of the Act
i.e aggravated penetrative sexual assault, minimum
imprisonment, which shall not be less than 20 years, which may
extend to natural life or penalty of death. Prior to the
amendments made by recent amending Act of 2019, for offence
under POCSO, death penalty was not provided. By virtue of the
amendments made in appropriate cases, for offences falling under
provisions of the POCSO Act alone, a penalty of death sentence
can be imposed. In the case on hand, the offence was committed
prior to coming into force, of the Act. Even then, the legislative
intent which resulted in amendments to POCSO should not be
forgotten, while dealing with the offences against the children.
At the same time, even for imposing the death sentence, for
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cases arising out of the provisions under POCSO Act, 2012, it
is the duty of the courts to balance the aggravating and mitigating
circumstances. To balance such aspects, the guidelines in
Bachan Singh, Machhi Singh and Sushil Murmu will continue to
apply. Further, the aggravating and mitigating factors are to be
considered with reference to the facts of each case and there
cannot be any hard and fast rule for balancing such aspects. [Para
32, 33] [768-H; 769-A-E]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 ;
Machhi Singh and Ors. v. State of Punjab (1983) 3
SCC 470 : [1983] 3 SCR 413 ; Sushil Murmu v. State
of Jharkhand (2004) 2 SCC 338 : [2003] 6 Suppl.
SCR 702 - relied on.
3. In this case on hand, the mitigating circumstances of the
appellant, dominate over the aggravating circumstances, to
modify the death sentence to that of life imprisonment. Even as
per the case of prosecution, the appellant was under influence
of liquor at the time of committing the offence, and there is no
evidence on record from the side of prosecution, to show that
there is no possibility of reformation and rehabilitation of the
appellant. Further, age of the appellant was 25 years at the
relevant time and conviction is solely based on circumstantial
evidence. Taking all such aspects into consideration, the death
penalty imposed on the appellant is to be modified to that of life
imprisonment, for the offence under Section 302 IPC. [Para 34]
[769-F-G]
Nand Kishore v. State of Madhya Pradesh [2019] 1
SCR 260 ; Raju Jagdish Paswan v State of
Maharashtra Criminal Appeal No. 88-89 of 2019 ;
Vijay Raikwar v. State of Madhya Pradesh (2019) 4
SCC 210 - relied on.
Jagmohan Singh v. State of Uttar Pradesh (1973) 1
SCC 20 : [1973] 2 SCR 541 ; Kalu Khan v. State of
Rajasthan (2015) 16 SCC 492 - referred to.
Case Law Reference
In the Judgement of Surya Kant, J.
(2015) 16 SCC 492
referred to
Para 38
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(2017) 4 SCC 393
referred to
Para 38
(2019) 8 SCC 382
referred to
Para 39
[1994] 1 SCR 37
referred to
Para 40
[2013] 6 SCR 949
referred to
Para 40
(2008) 3 SCC 26
referred to
Para 40
[2009] 9 SCR 90
referred to
Para 40
[2008] 11 SCR 93
referred to
Para 43
[2015] 14 SCR 613
referred to
Para 43
(1980) 2 SCC 684
referred to
Para 44
[1983] 3 SCR 413
referred to
Para 45
[2014] 4 SCR 287
referred to
Para 53
[2017] 3 SCR 850
referred to
Para 54
[2019] 3 SCR 446
referred to
Para 55
(2019) SCC Online 951
referred to
Para 56
In the Judgement of R. Subhash Reddy, J.
[1973] 2 SCR 541
referred to
Para 7
(1980) 2 SCC 684
relied on
Para 7
[1983] 3 SCR 413
relied on
Para 8
(2015) 16 SCC 492
referred to
Para 13
[2002] 1 SCR 377
relied on
Para 14
(2017) 4 SCC 393
relied on
Para 15
[2012] 13 SCR 1049
relied on
Para 19
[2013] 3 SCR 90
relied on
Para 20
[2013] 16 SCR 616
relied on
Para 20
[2003] 2 Suppl. SCR 285
relied on
Para 21
[2004] 4 Suppl. SCR 464
relied on
Para 22
[2007] 1 SCR 916
relied on
Para 23
(2007) 12 SCC 230
relied on
Para 24
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(2007) 12 SCC 288
relied on
Para 25
[2013] 9 SCR 295
relied on
Para 26
[2003] 6 Suppl. SCR 702
relied on
Para 27
[2019] 1 SCR 260
relied on
Para 36
(2019) 4 SCC 210
relied on
Para 37
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1488-1489 of 2018.
From the Judgment and Order dated 20.01.2016 of the High
Court of Judicature at Bombay, Bench at Aurangabad in Confirmation
Case No. 1 of 2015 and in Criminal Appeal No. 783 of 2015.
Ms. Nitya Ramakrishnan, Ashwath Sitaraman, Archit Krishna,
Ms. Sneha Singh, Shadan Farasat, Advs. for the Appellant.
Nishant R. Katneshwarkar, Anoop Kandari, Advs. for the
Respondent.
The Judgments of the Court were delivered by
SURYA KANT, J.*
1. This appeal assails the judgment dated 20th January, 2016
passed by the High Court of Judicature at Bombay, Bench at
Aurangabad, confirming the death reference in the Sessions Case No.
127 of 2012 decided by the Additional Sessions Judge, Jalna, in which
the appellant having been found guilty of committing offences punishable
under Sections 302, 363, 376 and 377 of the Indian Penal Code (for
short, "the IPC"), has been awarded the sentence of death under
Section 302, IPC along with the sentence of rigorous imprisonment(s)
of different durations with fine for the rest of offences. The Trial Court
as well as the High Court have concurrently held that the case falls
within the exceptional category of `rarest of the rare' cases where all
other alternative options but to award death sentence, are foreclosed.
2. The facts leading to the aforestated conclusion are to the
following effect:-
3. The informant Iliyas Mohinuddin (P.W.9) had been a fruit-seller
based in Jalna. On 06.03.2012 at about 5.00 p.m. while he was as usual
busy in selling fruits, his wife informed him that their daughter (in short,
'the victim child') who was 2 years old, was missing. He along with
* Ed. note : Judgment delivered by Surya Kant, J. (for R.F. Nariman, J. and himself)
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his relatives started looking for the child. During their search, the
informant came to know from Azbar (P.W.2) that the appellant had been
spotted drunk and was distributing chocolates to small children in the
lane near the Maroti Temple. The appellant was also a resident of the
same lane. The informant went to the appellant's house which was
found locked. As the whereabouts of the missing child were still not
known, the informant lodged a formal missing report to the police. He
also passed on the information to the police as received from Azbar
(P.W.2) regarding the distribution of chocolates amongst small children
by the appellant. The police, therefore, came to the appellant's house
which had two doors. One was found locked from outside while the
other was locked from inside. Police broke open the door and entered
the house along with the informant, his brother and a few other persons.
They found the appellant in the house; deceased-victim was lying under
the bed in a naked and unconscious condition. Blood was oozing out
from her private parts and had multiple injuries on her body. She was
covered in a blanket and taken to the hospital where the doctor declared
her brought dead. Inquest panchnama was prepared and the body was
sent for post mortem. A panel of doctors, including Dr. B.L. Survase
and Dr. Bedarkar (P.W. 7 and P.W.8 respectively) performed the post
mortem and found multiple injuries on the person of the victim. They
opined that the death was caused due to throttling. The informant -
father of the victim lodged the report at 12.30 a.m. on 07.03.2012 on
the basis of which Crime No. 56 of 2012 was registered. The appellant
was arrested at about 1.00 a.m. on the same day by the Investigating
Officer Rajinder Singh Gaur (P.W.12). The clothes worn by the
appellant were seized and the seizure panchnama was drawn in the
presence of panchnama witnesses - Sheikh Arshad and Sheikh
Nayeem.
4. Iliyas (P.W.9), the father of the deceased-victim also produced
the clothes worn by her which too were duly seized in the presence of
Syed Muzeeb (P.W.1) and Mohd. Akbar Khan. The scene of crime
panchnama was drawn and articles found on the spot were also seized.
The appellant was referred for medical examination to Ghati Hospital,
Aurangabad. The appellant's blood samples were taken on 11.3.2012
and sent to Mumbai for DNA examination along with the seized
muddemal. The blood samples of the appellant were taken again on
13.03.2012 and were sent for the DNA test.
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5. On filing of the chargesheet, charges under Sections 363, 376
and 302, IPC were framed to which the appellant did not plead guilty
and claimed trial. Thereafter, prosecution moved an application for
framing an additional charge under Section 377, IPC. The said
application was allowed and charge under Section 377 was framed to
which also the appellant did not plead guilty. His defence was of total
denial and that he was falsely implicated.
6. The prosecution examined 12 witnesses in all. The following
points thus arose for consideration of the Trial Court:-
"1. Whether the prosecution proves that accused on
6.3.2012 at about 16.00 Hrs. in the vicinity of Indira
Nagar, old Jalna, Taluka and District : Jalna, kidnapped
xxx.. d/o Iliyas Pathan a minor girl under 16 years of
age from her lawful guardianship & without his consent,
and thereby committed an offence punishable u/s 363
of I.P.C.?
2. Whether the prosecution further proves that accused on
above date, time and place of offence, committed rape
on xxx.. and thereby committed an offence punishable
u/s 376 of IPC?
3. Whether the prosecution further proves that accused on
above date, time and place of offence, committed carnal
intercourse against the order of nature with minor girl
xxx.. and thereby committed an offence punishable u/s
377 of IPC?
4. Whether the prosecution further proves that accused on
above date, time and place of offence, committed murder
intentionally or knowingly causing death of xxx.., and
thereby committed an offence punishable u/s 302 of
IPC?"
7. The Trial Court discussed the evidence at length in the context
of each point and answered them in the affirmative. It held the appellant
guilty of the offences referred to above. The Trial Court thereafter
compared the 'aggravating circumstances' vis-a-vis the 'mitigating
circumstances' and having found that the crime was committed in a
most brutal, diabolical and revolting manner which shook the collective
conscience of the society, it found that the R.R. Test (rarest of the rare
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cases) is fully attracted, hence capital punishment was imposed on the
appellant under Section 302, IPC.
8. The High Court considered the death reference as well as
the appeal preferred by the appellant against the trial Court judgment
and after scrutinising the prosecution evidence, reached the following
factual issues:-
"A. Accused was found with victim girl in a house one door
of which was locked from outside and another door
closed from inside,
B. Multiple injuries found on the person of victim,
C. Medical evidence showing that the girl was forcibly
raped and done to death,
D. Recovery of blood stained jeans pant and full bush shirt
(torn) from the accused,
E. Motive,
F. Failure of accused to offer plausible explanation to the
incriminating circumstances against him."
9. The High Court held that the circumstances conclusively prove
that all the pieces of the puzzle fit so perfectly that they leave no
reasonable ground for a conclusion consistent with the hypothesis of
the innocence of the appellant, rather the same leads to the irrefutable
conclusion that it is the appellant who took away the victim child to his
house, sexually assaulted her, committed unnatural intercourse and
throttled her to death. Consequently, the conviction of the appellant under
Sections 302, 376, 377 and 363 of the IPC. was upheld.
10. The High Court thereafter engaged itself on the question of
quantum of sentence and as to whether the R.R. Test was attracted
to the facts and circumstances of this case. The High Court drew up
the balance sheet of the 'aggravating' and 'mitigating' circumstances
and after their comparative analysis, it concurred with the extreme
penalty awarded by the trial Court and confirmed the death sentence.
11. We have heard Ms. Nitya Ramkrishnan, Learned Counsel
for the appellant and Mr. Nishant R. Katneshwarkar, Learned Counsel
for the State of Maharashtra on merits as well as on the contentious
issue re: quantum of sentence and have minutely perused the relevant
record.
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12.