# VASANT SAMPAT DUPARE v. STATE OF MAHARASHTRA

- **Citation:** [2014] 14 S.C.R. 961
- **Court:** Supreme Court of India
- **Decided:** 2014
- **Case number:** Criminal Appeal Nos. 2486-2487 of 2014
- **Bench:** Dipak Misra, ROHINTON FALi NARIMAN, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vasant-sampat-dupare-v-state-of-maharashtra-29691
- **Pages:** 46

## Headnote

Penal Code, 1860: ss.302, 376(2)(f) - Rape and
murder of 4 years old minor girl - Conviction based on c
circumstantial evidence -
Held: The incriminating
circumstances clearly established and the chain of.
circumstances conclusive in nature to lead to a definite
conclusion that the crime was committed by the appellant -
The crime was committed in an inhuman manner - The D
appalling cruelty shown by him to the minor girl child was
extremely shocking and it gets accentuated, when his age is
taken into consideration.- The offence was not committed
under any mental stress or emotional disturbance and it is
· difficult to comprehend that he would not commit such acts E
and would be reformed or rehabilitated -
As the
circumstances would graphically depict, he would remain a
menace to the society, for a defenceless child has become
his prey - There were no mitigating circumstances - A
helpless and defenceless child gets raped and murdered F
because of the acquaintance of the appellant with the people
of the society- This is not only betrayal of an individual trust
but destruction and devastation of social trust- It irrefragably
invites the extreme abhorrence and indignation of the
collective - It meets the test of rarest of the rare case -
G
Conviction and death sentence affirmed.
Dismissing the appeals, the Court
HELD: 1. The circumstances that were clearly
established were that the appellant was seen in the
courtyard where the minor girl and other children were H
961
962
SUPREME COURT REPORTS
[2014) 14 S.C.R.
A playing; thatthe appellant was seen taking the deceased
on his bicycle; that he went to the grocery shop owned
by PW-6 to buy Mint chocolate along with her; that the
accused told PW-2 that the child was the daughter of
his friend and he was going to 'Tekdi~Wadi' along with
B the girl; that the appellant led to discovery of the dead
body of th4il deceased, the place where he had washed
his clothes and at his instance the stones smeared with
blood were recovered; that the medical report clearly
indicated about the injuries· sustained by the deceased
C on her body; that the injuries sustained on the private
parts were stated by the doctor to have been caused by
forcible sexual intercourse; that the stones that were
seized were smeared with blood and the medical
evidence corroborated.the fact that injuries could have
o been caused by battering with stones; that the chemical
analysis report showed that the blood group on the
stones matched with the blood group found on the
clothes of the appellant; that the appellant did not offer
any explanation with regard to the recovery made at his
E instance; and that nothing was stated in his examination
under Section 313 CrPC that there was any justifiable
reason to implicate him in the crime in question. Thus,
each of the incriminating circumstances were clearly
established and the chain ,of circumstances were
F conclusive in nature to lead to a definite conclusion that
the crime was committed by the accused. [Para 35)
[988-E-H; 989-A-D]
.
Dana Yadav v. State of Bihar (2002) 7 SCC 295 :
2002 (2) Suppl. SCR 363 ; Dharam Oeo Yadav
G
v. State of Uttar Pradesh (2014) 5 SCC 509 ;
Pulukuri Kotayya v. King Emperor AIR 1947 PC
67; Mohmed lnayatullah v. The State of
Maharashtra (1976) 1 SCC 828: 1976 (1) SCR
715 ; Aftab Ahmad Anasar:i v. State of Uttaranchal
. H
(2010) 2 sec 583: 2010 (1) SCR 1021; State of
VASANT SAM PAT DU PARE v. STATE OF
963
MAHARASHTRA
Maharashtra v. Damu (2000) 6 SCC 269 : 2000
A
(3) SCR 880 ; State of Maharashtra v. Suresh
(2000) 1 sec 471 : 1999 (5) Suppl. SCR 215;
State of Punjab v. Gurnam Kaur (2009) 11 SCC
225: 2009 (3) SCR 1195; AftabAhmad Anasari
v. State of Uttaranchal (2010) 2 $CC 583 ;
B
Bhagwan Dass v. State (NCT of Delhi) (2011) 6
SCC 396 : 2011 (6) SCR 330 ; Manu Sharma v.
State (NCT of Delhi) (2010) 6 sec 1 : 2010 (4)
SCR 103 ; Rumi Bora Dutta v. State of Assam
(2013) 7 SCC 417; Prakash Chand v State (Delhi
C
Admn.) (1979) 3 sec 90 : 1979 (2) SCR 330 ;
H.P. Ad

## Text

_Characters 0–39,981 of 88,755. This is a partial read: ask again with offset=39981 for what follows._

[2014] 14 S.C.R. 961
VASANT SAMPAT DUPARE
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 2486-2487 of 2014)
A
NOVEMBER26, 2014
B
[DIPAK MISRA, ROHINTON FALi NARIMAN AND
UDAY UMESH LALIT, JJ.]
Penal Code, 1860: ss.302, 376(2)(f) - Rape and
murder of 4 years old minor girl - Conviction based on c
circumstantial evidence -
Held: The incriminating
circumstances clearly established and the chain of.
circumstances conclusive in nature to lead to a definite
conclusion that the crime was committed by the appellant -
The crime was committed in an inhuman manner - The D
appalling cruelty shown by him to the minor girl child was
extremely shocking and it gets accentuated, when his age is
taken into consideration.- The offence was not committed
under any mental stress or emotional disturbance and it is
· difficult to comprehend that he would not commit such acts E
and would be reformed or rehabilitated -
As the
circumstances would graphically depict, he would remain a
menace to the society, for a defenceless child has become
his prey - There were no mitigating circumstances - A
helpless and defenceless child gets raped and murdered F
because of the acquaintance of the appellant with the people
of the society- This is not only betrayal of an individual trust
but destruction and devastation of social trust- It irrefragably
invites the extreme abhorrence and indignation of the
collective - It meets the test of rarest of the rare case -
G
Conviction and death sentence affirmed.
Dismissing the appeals, the Court
HELD: 1. The circumstances that were clearly
established were that the appellant was seen in the
courtyard where the minor girl and other children were H
961
962
SUPREME COURT REPORTS
[2014) 14 S.C.R.
A playing; thatthe appellant was seen taking the deceased
on his bicycle; that he went to the grocery shop owned
by PW-6 to buy Mint chocolate along with her; that the
accused told PW-2 that the child was the daughter of
his friend and he was going to 'Tekdi~Wadi' along with
B the girl; that the appellant led to discovery of the dead
body of th4il deceased, the place where he had washed
his clothes and at his instance the stones smeared with
blood were recovered; that the medical report clearly
indicated about the injuries· sustained by the deceased
C on her body; that the injuries sustained on the private
parts were stated by the doctor to have been caused by
forcible sexual intercourse; that the stones that were
seized were smeared with blood and the medical
evidence corroborated.the fact that injuries could have
o been caused by battering with stones; that the chemical
analysis report showed that the blood group on the
stones matched with the blood group found on the
clothes of the appellant; that the appellant did not offer
any explanation with regard to the recovery made at his
E instance; and that nothing was stated in his examination
under Section 313 CrPC that there was any justifiable
reason to implicate him in the crime in question. Thus,
each of the incriminating circumstances were clearly
established and the chain ,of circumstances were
F conclusive in nature to lead to a definite conclusion that
the crime was committed by the accused. [Para 35)
[988-E-H; 989-A-D]
.
Dana Yadav v. State of Bihar (2002) 7 SCC 295 :
2002 (2) Suppl. SCR 363 ; Dharam Oeo Yadav
G
v. State of Uttar Pradesh (2014) 5 SCC 509 ;
Pulukuri Kotayya v. King Emperor AIR 1947 PC
67; Mohmed lnayatullah v. The State of
Maharashtra (1976) 1 SCC 828: 1976 (1) SCR
715 ; Aftab Ahmad Anasar:i v. State of Uttaranchal
. H
(2010) 2 sec 583: 2010 (1) SCR 1021; State of
VASANT SAM PAT DU PARE v. STATE OF
963
MAHARASHTRA
Maharashtra v. Damu (2000) 6 SCC 269 : 2000
A
(3) SCR 880 ; State of Maharashtra v. Suresh
(2000) 1 sec 471 : 1999 (5) Suppl. SCR 215;
State of Punjab v. Gurnam Kaur (2009) 11 SCC
225: 2009 (3) SCR 1195; AftabAhmad Anasari
v. State of Uttaranchal (2010) 2 $CC 583 ;
B
Bhagwan Dass v. State (NCT of Delhi) (2011) 6
SCC 396 : 2011 (6) SCR 330 ; Manu Sharma v.
State (NCT of Delhi) (2010) 6 sec 1 : 2010 (4)
SCR 103 ; Rumi Bora Dutta v. State of Assam
(2013) 7 SCC 417; Prakash Chand v State (Delhi
C
Admn.) (1979) 3 sec 90 : 1979 (2) SCR 330 ;
H.P. Admn. v. Om Prakash (1'972) 1 SCC 249 :
1972 (2) SCR 765 ; A.N Vekatesh v. State of·
Karnataka (2005) 7 SCC 714 - relied on.
Furman v. Georgia 33 L Ed 2d 346 : 408 US 238
D
(1972)- referred to.
2.1. Materials on record clearly revealed that the
appellant was well acquainted with the inhabitants of the
locality and had access to the house of the father of the
deceased and the children used to call him "uncle". He E
had lured the deceased to go with him to have
chocolates. It was an act of taking advantage of absolute
innocence. He had taken the deceased from place to
place by his bicycle and eventually raped her in a brutal
manner, as if he had the insatiable and ravenous appetite. · F ·
He had battered her to death by assaulting her with two
heavy stones. The injured minor girl could not have
shown any kind of resistance. It was not a case where
the accused had a momentary lapse. After the savage
act was over, the coolness of the appellant was evident, G
for he washed the clothes on the tap and took proper
care to hide things. As is manifest, he even did not think
for a moment the trauma and torture that was caused to
the deceased. The barbaric act of the appellant did not
H
964
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A remotely show any concern for·the precious life of a
young minor child who had really not seen life. The
criminality of the conduct of the appellant was not only
depraved and debased, but can have a menacing effect
on the society. The crime was committed in an inhuman
B manner. Indubitably, these go a long way to establish
the aggravating circumstances. [Paras 57, 58)
(1003-F-H; 1004-A-C; 1005-D-Gr
2.2. The appellant was aged about forty-seven years
at the time of commission of the crime. There was no
C remorse on his part. He was a history-stieeter and had
number of cases are pending against him. That alone
may not be sufficient. It was not committed under any
mental stress or emotional disturbance and it is difficult
to comprehend that he would not commit such acts and
D would be reforme.d or rehabilitated. As the circumstances
would graphically depict, he would remain a menace to
the society, for a defenceless child has become his prey.
There are no mitigating circumstances. This case
deserves to fall in the category of rarest of the rare cases.
E [Paras 59, 60)(1005-H; 1006-A-E]
F
G
H
Bachan Singh v. State of Punjab (1980) 2 SCC
684 ; Machhi Singh and Others v. State of Punjab
(1983) 3 sec 470 : 1983 (3) SCR 413 ; Haresh
Mohandas Rajput v. State of Maharashtra (2011)
12 SCC 56: 2011 (14) SCR 921 ; c, Muniappan
v. State of T.N. (2010) 9 SCC 567 : 2010 (10)
SCR 262 ; Dara Singh v. Republic of India (2011)
2 SCC 490: 2011 (1) SCR 92.9; Surendra Kofi v.
State of U.P. (2011) 4 sec 80 : 2011 (2) SCR
939 ; Dhanjoy Chatterjee alias Dhana v. State of
W.B. (1994) 2 sec 220 : 1994 (1) SCR 37 ;
Laxman Naik v. State ofOrissa (1994) 3 SCC 381:
1994 (2) SCR 94; Kamta Tiwari and State of M.P.
(1996). 6 sec 250 : 1996 (5) Suppl. scR 507 ;
VASANT SAMPAT DUPARE v. STATE OF
965
MAHARASHTRA
Bantu v. State of Uttar Pradesh (2008) 11 SCC
A
113 : 2008 (11) SCR 184 ; Devender Pal Singh
v. State of A.P. (2002) 5 sec 234: 2002 (2) SCR
767 ; Rajendra Pralhadrao Wasnik v. State of
Maharashtra (2012) 4 SCC 37 : 2012
(2) SCR 225; State ofT.N. v. Suresh (1998) 2 SCC
B
372: 1997 (6) Suppl. SCR 203; Akhtarv. State
of U.P. (1999) 6 SCC 60; State of Maharashtra v.
Barat Fakira Dhiwar(2002) 1SCC622: 2001 (5)
Suppl. SCR 12 ; Shyam Narain v. State (NCT of
Delhi) (2013) 7 SCC 77 - relied on.
c
CASE LAW REFERENCE
2002 (2) Suppl. SCR "363
relied on.
Para 17
(2014) 5 sec 509
relied on.
Para 17
AIR 1947 PC 67
relied on.
Para 19
D
1976 (1) SCR 71.5
relied on.
Para 20
AIR 1929 Lah. 344
relied on.
Para 20
AIR 1932 Born 286
relied on. · Para 20
1962 Supp 2 SCR 830
relied on.
Para 20
E
2010 (1) SCR 1027
relied on.
Para 21
2000 (3) SCR 880
relied on.
Para 22
1999 (5) Suppl. SCR 215
relied on.
Para 23
2009 (3) SCR 1195
relied on.
Para 23
F
2011 (6) SCR 330
relied on.
Para 23
2010 (4) SCR 103
relied on.
Para 23
(2013) 1 sec 417
relied on.
Para 23
1979 (2) SCR 330
relied on.
Para 25
G
1972 (2) SCR 765
relied on.
·Para 25
(2005)7 sec 114
relied on.
Para 26
(200&) 1 o sec 151
relied on.
Para 30
H
966
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
1952 SCR 1091
relied on.
Para 31
1985 (1) SCR 88
relied on ..
Para 32
1996 (3) Suppl. SCR 479
relied on.
Para 33
(1980) 2 sec 684
relied on.
Para 36
B 408 us 238 (1972)
referred to. Para 37
1983 (3) SCR 413
relied on.
Para 40
2011 (14) SCR 921
relied on.
Para 45
2010 (10) SCR 262
relied on.
Para 45
c 2011 (1 ) SCR 929
.relied on.
Para 45
2011 (2) SCR 939
relied on.
Para 45
1994 (1) SCR 37
relied on.
Para 46
1994 ( 2) SCR 94
relied.on.
Para 47
D 1996 (5) Suppl. SCR 507
relied on.
Para 48
2008 (11) SCR 184
relied on.
Para 50
2002 (2) SCR 767
relied on.
Para 51
2012 (2) SCR 225
relied on.
Para 52
E 1997 (6) Suppl. SCR 203
relied on.
Para 53
(1999) 6 sec 60
relied on.
. Para 54
2001 (5)· Suppl. SCR 12
relied on.
Para 55
(2013) 1 sec 11
relied on.
Para 56
F
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No(s). 2486-2487 of2014.
· From the Judgment and Order dated 27-03-2012 of the
High Court of Judicature at Bombay Nagpur Bench in Criminal
G Confirmation Case No. 1 of2012 in CriminalAppeal No. 112
of2012.
Sanjiv Das, S.S. Nehra, Parmanand Gaur,Advs. for the
Appellant.
Shankar Chillarge, Aniruddha P. Mayee Advs. for the
H Respondent.
VASANT SAMPAT DUPARE v. STATE OF
967
MAHARASHTRA
The Judgment of the Court was delivered by
A
DIPAK MISRA, J.
1. In these two appeals, we are required to deal with a
sordid and despicable act of a married man who, at the time
of incident was in wedlock for more than two scores having a B·
criminal background, has yielded not only to the inferior
endowments of nature but also has exhibited the gratification
of pervert lust and brutish carnality. The prey of such
degradation and depravity was a minor girl aged about four
years, daughter of Pinki, PW-1, and Krushna, PW-4. The
appellant, as per the prosecution version, after satisfying his C
uncontrolled, insatiable and rapacious savage desire, battered
the girl to death. This led to his facing trial for the offences
punishable under Sections 302, 376(2)(f), 363, 367 and 201
of the Indian Penal Code (for short, "IPC") in Sessions Trial
No. 252/2008 before the Learned Additional Sessions Judge,
D
Nagpur, who considering the evidence on record and keeping
in view the nature of the crime vide judgment dated 23. 02. 2012
after recording the conviction in respect of aforesaid offences,
imposed the death sentence, apart from other punishment in
respect of other offences and sent, as required under Section
E
366(1) of the Code of Criminal Procedure (for short, "CrPC"),
for confirmation by the High Court. The judgment of conviction
and the order of sentence was challenged by the appellant in
Criminal Appeal No. 112/2012 and it was heard along with the
Criminal Confirmation Case No.1 of2012 wherein the Division
F
Bench of the High Court confirmed the sentence of death
awarded by the trial Court and as a logical corollary dismissed
the criminal appeal preferred by him. The said judgment is
the subject of assailment in the present appeal.
2. According to the prosecution case on 3.4.2008 about G
9-10 p.m., informant, Krushna Dudhraj Sharma, father of the
deceased, lodged a report at the police station Wadi stating
that he was staying in a tenanted house with his wife and two
daughters, the kidnapped girl aged about 4 years and her sister H
968
SUPREME COURTREPORTS
[2014] 14 S.C.R.
A
aged about six months. One Subhash Sonawane was residing
along with his wife and son in the neighbourhood of the
informant as a tenant of the common landlord, Kush al Bansod.
The appellant, Vasanta Dupare, a friend of Subhash
Sonawane, was a frequent visitor to the house of Subhash.
B
On the fateful day when the informant, carpenter by profession,
returned home about 7.00 p.m., he found his wife weeping
and on a query being made, she disclosed that Vasanta Dupare
had taken the elder daughter o'n his bicycle while she was
playing in the.courtyard of the house and she had not yet
C returned home. He, being perturbed, searched for his daughter
in the vicinity, but it was an exercise in futility. Thus, the initial
allegation was thanhe appellant had kidnapped his minor
daughter. On the basis of the aforesaid report, a crime was
registered against the accused for an offence punishable under
o Section 363 of.the IPC.
3. As the prosecution version further undrapes, on the
same day, Santosh Ghatekar, PW-13, Assistant Police
Inspector, while returning to the police station, received the
information that the appellant was moving around Gati Godown
E located on Khadgaon. Road, and he passed on the said
information to Police lnspector.D.J. Chauhan, PW-16, and
eventually the appellant was apprehended and brought to the
police station. While in police custody, on 4.4.2008, he took
the investigating agency to the spot where he had after
F
ravishing the minor girl child had murdered her. A memorandum
·of panchnama to that effect was prepared in the morning of
4.4.2008 and thereafter he led the police to the place of incident
wherefrom the dead body of the minor girl was recovered. At
his instance, the bicycle used was recovered from the godown
G located in between Khadgaon to Kamleshwar road belonging
to oneAshwin Prakash Agrawal. Thereafter, the initial offence
registered under Section 363 IPC was converted to offences ·
under Section 376(2)(f), 367, 302 and 201 of the IPC. The
Investigating Agency examined number of witnesses under
H Section 161 CrPC and completed all the formalities and laid
VASANT SAMPAT DUPARE v. STATE OF
969
MAHARASHTRA[DIPAK MISRA, J.]
the chargesheet before the competent court which in turn A
committed the matter to the Court of Session.
4. The accused-appellant pleaded his innocence and
non-involvement and took the plea that he had been falsely
implicated due to animosity.
B
5. The prosecution, to substantiate the charges levelled
against the appellant, examined 17 witnesses: After closure
. of the evidence of the prosecution, the accused was examined
under Section 313 of the CrPC and he pleaded complete denial
and false implication. The defence chose not to adduce any C
evidence.
6. The learned trial Judge, on the basis of the evidence
·
brought on record came to hold that the mother of the minor
• girl, Pinki, PW-1, knew the appellant because of his frequent
visits to her neighbour Subhash; that she had seen the accused 0
in the courtyard where the minor girl was playing along with
other children; that she had also seen him going on a bicycle
from the behind; that Vandana Ramkar, PW-5, had deposed
categorically that While she was present outside
Chandrawanshi Hospital after finishing her work, she sawthe E
. appellant going on the bicycle with the deceased and she had
revealed when Pinki had made an enquiry about her daughter;
that Baby Sharma, PW-6, and Minal @ Twinkle, PW-3, the
child witness, have also unequivocally deposed that they had
seen the accused taking the minor girl with him at the relevant
F
time from the locality in question; that Baby Sharma had further
deposed that the minor girl had fallen down from the bicycle
near her shop and the cyclist had purchased 'Minto Fresh' for
the girl who was wearing black top and blue skirt; that she had
identified the cyclist and also the photograph of the girl who G
had accompanied the appellant at the relevant time; that
Subhash Sonawane, PW-11, had stated that the accused had
been to his house for repairing his tape recorder on that day;
that version of Subhash had received corroboration from his
wife, Kavita, who has deposed that her daughter Akanksha
H
970
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
and the victim were playing in the courtyard and at thatjuricture
the appellant was standing in the courtyard; thatthe appellant
had told Akanksha and the daughter of PW-1 that he would
buy chocolates for them and, therefore, they should accompany
him; that it had come in the testimony of Kavita, PW-12, that
B Akanksha, who was not having appropriate clothes on her
person came back home and by that time accused took the
· victim girl on his bicycle; that Manisha, PW-2, who knew the
appellant, had deposed that he had come to her house on the
bicycle along with the girl and on being asked he had told her
c name and she was wearing black top and blue midi and the
accused had mentioned to her that she was the daughter of
his friend; that Baby Sharma, PW~6. had identified the clothes
of the deceased which were on h'er person on the day of the
incident arid had also identified him that he was the person
o who ·had taken the girl; that the panch witnesses Ramprasad,
PW-7 andAnand Borkar, PW-8, had stood embedded in their
testimony about the recovery wherefrom the girl was taken and
the place where the dead body was found, and they had also
remained firm in their testimony proving the panchnama to
E indicate the seized incriminating materials, that is, two stones
smeared with blood, blood mixed sample earth, branches of
trees having blood stains, minto,fresh and empty chocolate
wrappers and nikar and other clothes of the accused from the
spot; that the other two panch witn'esses, namely, Purushottam
F
Gore, PW-9, arid Sanotsh Keche,PW-10, had stated about
the parcels containing clothes of the deceased and various
samples taken from the body of the deceased, received from
the hospital and the recovery of the bicycle from the god own;
and that nothing had been elicited which would create any kind
G of concavity in the testimony of these witnesses; and that the
investigating officers had not given any room for doubt; that·
the examining doctor, Dr. Prashant Barve, who had conducted
autopsy on the deceased had remained inflexible in the
testimony as regards the reports; and that the ocular and the
H documentary evidence brought on record established beyond
•
VASANT SAMPAT DUPARE v. STATE OF
971
MAHARASHTRA[DIPAK MISRA, J.]
reasonable doubt that the accused by alluring a minor girl of A
four years for giving chocolates, had kidnapped her, raped
her and caused injuries; and also had intentionally made
disappear the evidence of the crime committed by him. On
the aforesaid reasoning, the learned trial Judge found the
appellant guilty of the offences and treated the same as a crime
B
of extreme brutality, for he had committed rape on a minor girl
aged about four years without thinking about the effect on the
victim. It was also opined by the learned trial Judge that the
accused was in mid 40s and had caused injuries by crushing
stones weighing 8.5 kg. and 7.5 kg with force upon her when c
she was in unbearable pains because of the ferocious act of
rape and injuries sustained by her; and that the accused was
having criminal antecedents as he was prosecuted for various
offences in four cases. Taking into consideration the totality of
circumstances, that is, the aggravating and the mitigating o
circumstances, the learned trial Judge regarded the case as
rarest of the rare cases and sentenced the appellant to suffer
death penalty under Section 302 IPC, life imprisonment and
fine of Rs.2,000/- with the default clause for the offence
punishable under Section 376(2)(f) of the IPC; rigorous E
imprisonment for seven years and fine of Rs.1000/- with default
clause for the offence punishable under Section 363 of the
IPC; rigorous imprisonment for seven years and fine of
Rs.1000/- with default clause for the offence punishable under
Section 367 of the IPC; and rigorous imprisonment for three
F
years and fine of Rs.1000/-with default clause for the offence
punishable under Section 201 of the IPC with the stipulation
that all the sentences relating to imprisonment shall be
concurrent and submitted the proceedings to the High Court
under Section 366(1) of the Code of Criminal Procedure, 1973 G
for confirmation of death sentence by the High Court.
7. As has been stated earlier, the appellant preferred a
Criminal Appeal assailing the conviction and the sentence and
the High Court appreciated the evidence afresh and found that
the evidence of the witnesses was impeccable and totally
H
972
SUPREME COURT REPORTS
(2014] 14 S.C.R.
A beyond reproach and the prosecution had been able tci prove
the offences to the hilt. While dealing with the confirmatipn of
the sentence, the High Court referred to various decisions and
opined as follows:
B
c
D
E
F
G
H
"The accused raped a four years old girl and thereafter
battered and smashed her head by two heavy stones
and killed her. The aggravating circumstance as pointed
out by us must be such as would have shockegjhe
conscience of the community in general. The acc,used
had acted in diabolical manner and had designedly lured
the unsuspecting Muskan to accompany him on the
bicycle. Battering of the head of the girl of tender years
was done by the accused with extreme cruelty. The crime
has been committed by the accused in an extremely cruel
manner exhibiting brutality and utter perversity. The
history sheet of ~he accused which is placed on reccird
exhibits several prosecutions against him. The accused
has not displayed any remorse or repentance for the act
done by him and we do not find any material to indicate
that there is a possibility of the accused reforming
himself. The accused would continue to be a menace to
the society and, therefore, according to us, this is a rarest
of rare case calling for the extreme.
The mitigating circumstances which are brought on record
against the accused are that the accused is middle aged
man of 45 years with no previous conviction so far. The
accused is a married person having a family. However,
the aggravating circumstances far out way the mitigating
circumstances and according to us, the extreme penalty
of death imposed by the trial court deserves to be
confirmed."
8. We have heard Mr. Sanjiv Das, learned counsel for
the appellant and Mr. Shankar Chillarge, learned counsel for
the respondent-State.
•
VASANT SAM PAT DU PARE v. STATE OF
973
MAHARASHTRA [DIPAK MISRA, J.]
9. It is submitted by the learned counsel for the appellant A
that the learned trial Judge as well as the High Court has
committed gross illegality ih placing reliance on the testimony
of the parents of the deceased and other witnesses to establish
the last seen theory, which has really not been established. It
is urged by him that the leading to recovery of the dead body B
of the deceased and the clothes are not in consonance with
Section 27 of the Evidence Act. Learned counsel would submit
that the panch witnesses who have alleged to have supported
the prosecution story have really paved the path of deviancy
which has been lost sight of by the learned trial Judge as well C
.
as by the High Court. It is his further submission that there are
material inconsistencies, contradictions and omissions, which
had seriously affected the prosecution's case and the chain of
circumstances for implicating the accused in the crime has
really not been established. It is propounded by him that the o
witnesses who have been cited by the prosecution to establish .
the chain of circumstances, fundamentally the last seen theory,
cannot be given credence to regard being had to the
unacceptable contradictions and infirmities. Finally, it is
canvassed by the learned counsel for the appellant that the
E
present case could not fall ur:ider the category of rarest of the
rare cases warranting capital punishment and the criminal
background that has been taken into consideration by the
learned trial Judge as well as by the High Court is of not such
nature by which the appellant can be treated or regarded as a
F
menace to the society and, therefore, if this Court affirms the
conviction, it should substitute the punishment to that of life
imprisonment.
10. Mr. Shankar Chillarge, learned counsel for the
respondent-State in support of the view expressed by the High G
· Court, contends that the prosecution has succeeded in proving
the guilt of the appellant beyond reasonable doubt and the
scanning of the evidence by the learned trial Judge, which has
been re-appreciated by the High Court, does not remotely
indicate any contradiction or discrepancy. It is proponed by
H
974
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A him that all the witnesses have remained absolutely unshaken
in their version and nothing substantial has been elicited from
them duririg the cross-examination which could create a dent
in their testimony. Learned counsel would further contend that
if the ocular and documentary evidence is appreciated in
B proper perspective, there remains no scintilla of doubt that the
appellant had committed the brutal and heinous crime and in
such a circumstance when the society cries for justice, the Court
should not show any leniency for conversion of the seritencei.
11. To appreciate the rival submissions raised at the Bar,
C we think it appropriate to refer to the postmortem report of the
deceased. The said report by the doctor, namely, Dr. Prashant .
Barve, PW-15, .which has been brought on record as Exhibit
55, describes that at the time of postmortem, the face was
flattened, eyes closed, mouth partially opened, tongue was
D clinched and lacerated between teeth, blood was oozing
through mouth, nostrils and ears. It was also noticed that dry
grass leaves adhered over body at back side and dry bloodstains were present over face, neck, perineum and lower limb.
He has found the following injuries on the dead body of the
E deceased:
F
G
H
"1) Multiple scratch abrasions present over front of chest
and front of neck size varyirig from 1 cm x 1 /4 cm, to 3
cm. x 1/4'h cm., reddish brown.
2) Contused abrasion involving fore-head, eyes, nose,
both cheeks and lips red an·d dark red coloured,
. underlying bone fract~red, underlying, muscle lacerated.
3) Multiple scratch abrasion present over left lower leg
and left foot size varying from Y, cm. x 1/41h cm., to 1 cm.
x 1/41h cm., reddi.sh brown.
4) Multiple scratch abrasio~ present over back of trunk
upper 2/3'd of size varying from 1 cm. x 1/41h cm. to 5 cm.
· x 1/4th cm., reddish brown.
.
'
5) Abrasion of size 1 cm. x Y, cm. present over left knee,
reddish brown."
VASANT SAMPAT DU PARE v. STATE OF
975
MAHARASHTRA [DIPAK MISRA, J.]
12. According to the doctor, he had found during internal A
examination that under scalp haematoma was present over
left frontal and right frontal region of size 4 cm. x 4 cm, dark
red, the frontal bone was fractured and depressed, fracture
line extended up to occipital bone through right temporal and
parietal bone fracture on interior and middle eranial side. The
B
subarachined hemorrhage was present all over the brain ·
surface and meninges was congested. In his opinion, the cause
of death was head injury, associated with the injury on the
genital region. He has testified that the two stones that were
sent to him in sealed cover aiong with the requisition, Exhibit · C
62, for opinion, could have been used to cause the injuries on
the victim. He has weighed the stones which is 8.5 kg and 7.5
kg. and has opined that there had been forceful sexual
intercourse.
13. From the aforesaid medical evidence, it is clear as D .
crystal that there was forcible sexual intercourse with the girl
and the death was homicidal in nature.
14. Having analysed the said aspect, it· is to be seen
whether the prosecution has really established the complicity
of the appellant in the crime.in question. We have enumerated
E
the reaspns ascribed by the learned trial Judge and the
concurrence given by the High Court, but to satisfy our
conscience, we have thought it seemly to peruse the evidence
with all insight and concern by ourselves.
F
15.As is manifest, the father of the victim, Krishna, PW4, had lodged the FIR immediately i.e. at 9:10 p.m. The FIR
clearly stated that the accused had taken away the victim. The
role of the accused and the suspicion was thus immediately
reported. PW-1, mother of the deceased, has deposed that
her daughter, the deceased girl, was playing in the courtyard
G
along with other children while she was doing the household
work and when she came back to courtyard, she found that
the child was missing and she saw the appellant going on the
bicycle. Be it clarified, she had not actually seen the accused
H
976
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
taking away the victim but, as the evidence brought on record
do reveal,. five prosecution witnesses are the eye witnesses
to the faCtum. of accused taking away the minor girl. On a
studied scrutiny of the evidence it becomes graphically clear
that when the mother had gone in search of her, Vandana
B
Ramkar, PW-5, had told her that the' child had gone on bicycle
with the appellant. PW-5, in her testimony, has unambiguously
stated about the said fact. It has come in the testimony of PW1 that her daughter was wearing a blue midi and black top on
· her person, and she has identified the said clothes which have
c been brought on record as Articles 6, 9 and 10. From the
cross-examination it is manifest that they knew the appellant
earlier, and it is also demonstrable from the evidence of
Vandana Ramkar, PW-5, thatthe appellant had taken the girl
on the bicycle. It has come in the evidence of Baby Sharma, ·
o PW-6, that about 7.30 pm on 3.4.2008 the appellant while
going on the bicycle fell down near grocery shop and, thereafter,
the cyclist and the girl came to purchase "Minto Fresh". As
deposed by her the girl was wearing a black top and blue skirt
on her person. The said witness has identified the appellant
E and also identified the photograph of the girl, Article 12. She
has also identified the clothes of the girl. PW-12, Kavita, has .·
deposed that her husband, Subhash, PW-11 and Krushna,
PW-4, father· of the girl, were working at the same place and
on the fateful day the appellant had come to her house and
F told her husband Subhash, PW-11, who was busy in repairing
a tape-recorder that he could repair the same and after
checking it, he found some parts were damaged and needed
to be replaced and for the said purpose he took Rs.20 from
PW-11 and after 15 minutes came with the part and tried to
G repair it but could·notsucceed. He left the house of PW-11 at
4.00 pm. It is in her testimony that about 6.00 pm the appellant
came to her ho.use again and as she was feeling giddy and
had reclined on the cot, he sprinkled some water on her face.
It is deposed by her that her daughter, Akansha, and the
H deceased were playing in the courtyard and at that time the
VASANT SAMPAT DUPARE v. STATE OF
977
MAHARASHTRA[DIPAK MISRA, J.]
appellant who was standing in the courtyard had told Akansha A
and the minor girl that he would buy them chocolates and,
therefore, they should accompany him. As the daughter of PW12 was not wearing proper clothes she came back to her and
the appellant took the deceased with him. According to her
testimony the girl sat on the rod of the bicycle. It is testified by B
herthat as the appellant did not bring back the child, they went
in search of her.
She has clearly deposed about the
acquaintance of the appellant with her family. It is apt to state
here that nothing has been elicited in the cross-examination
to raise any doubt about the veracity of her version.
c ·
16. Manisha, PW-2, has deposed that her father-in-law
runs a tea stall and she had the occasion to know the appellant.
She has supported the version of the prosecution by stating
that the appellant had come to her house about 7.30 p.m. and
a girl aged about four years was with him. She has stated that D
the girl was dressed in black top and blue apparel and on a
query being made, the appellant had introduced the child as
the daughter of his friend and he was going to 'Tekdi-Wadi'
along with the girl. In the cross-examination it has only been
elicited that she was not aware of the character of the appellant.
E
In this context, the evidence of Ku. Minal@ Twinkle, PW-3,
· aged about 11 years is extremely significant. She has clearly
deposed that PW-1 is a resident of the locality and she knew
the deceased girl as she used. to come to their house for
playing with her younger sister. She has emphatically stated
F
that the deceased was going on a bicycle sitting on the front
rod with one person and on being asked she said she was
going to eat chocolates. She has identified the accused. From
the aforesaid evidence, it is quite vivid that the appellant was
last seen with tbe deceased and there is no justification to G
discredit the testimony of the witnesses. Nothing has been
brought on record that they had any axe to grind against the
appellant. The fact that the. appellant was taking the minor
child on his bicycle, and stopped at shop of Baby Sharma,
PW-6, to purchase chocolate and was also seen at other H
978
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A
places as testified by other witnesses has been proven to the
hilt. There are really no contradictions and discrepancies that
would compel the court to discard their evidence.
17. Be it noted, in appeal the High Court has observed
that even if the testimony of Minal, PW-3, is left out from
B consideration there is ample evidence to show that accused
had taken the deceased under the guise of offering her
. chocolates. In our considered view, there is no justification
not to rely upon the testimony of the said witness. She has
identified the appellant in court and has stood firm in her
C version. Her identification of the accused-appellant in the open
court is piece ,of substantive evide"nce as has been held in
Dana Yadav II. State of Bihar' and such identification by her
has not been shaken or contradicted. Be it noted, the High
Court has not rejected the said evidence, but has only opined
D that even if the testimony is not accepted, then also the
identification has been proved. We think the testimony of PW3 further strengthens the case of the prosecution. Considering
the evidence brought on record in totality, the irresistible
'
conclusion is that the deceased was last seen with the
E appellant. In this context, a fruitful reference may be made to
the observations made in Dharam Deo Yadav II. State of
· UttarPradesh2, wherein it has been held thus:
" ... ifthe prosecution, on the basis ofreliable evidence,
establishes that the missing person was seen in the
F
· company of the accused and was never seen thereafter,
it is obligatory on.the part of the accused to explain he
circumstances ii1 which the missing person and" the
accused parted company."
G
In the instant case,. the appellant has not offered any
explanation.
18. The next circumstance which has been taken note of
by the learned trial Judge aswell as by the High Court pertains
1(2002) 7 sec 295 ·
H
2(2014) 5 sec 509
VASANT SAMPAT DUPARE v. STATE OF
979
MAHARASHTRA [DIPAK MISRA, J.]
to leading to discovery by the appellant. As is evincible, the A
panch witness, Ariand Borkar, PW-8, has proved Exhibit 29,
the statement of the accused relating to discovery of the spot
wherefrom the dead body was found. He has also supported
the seizure panchnama, Exhibit 31, wherefrom the blood
stained earth, two stones, nikar, Minto Fresh chocolate and
B
one empty rapper were seized. According to the said witness
the said articles were seized vide Exhibit 31. PW-10, Santcish
Keche, has proved the seizure of the bicycle from the godown
at the instance of the appellant. The spot which was shown by
the appellant and the godown from which bicycle was seized, . C
as has come in the evidence, is in the vicinity where the dead
body was found. Vide Exhibit 34, the clothes, handkerchief
and foot wear of the accused were seized. The stones smeared ·
with blood had been seized at the instance of the accused.
19. Learned counsel for the appellant has submitted that D
the seizure witnesses cannot be believed as the proper
procedure has not been followed.As we find from the evidence
on record the appellant was in custody and he had led to
recovery. The search and seizure has also been supported in
minute detail by the Investigating Officer. It is also evident that E
the search witnesses are independent witnesses and their
evidence inspire confidence. While accepting or rejecting the
factors of discovery, certain principles are to be kept in mind.
The Privy Council in Pulukuri Kotayya II. King Emperor3
has held thus:
F
"It is fallacious to treat the 'fact discovered' within the
section as equivalent to the object produced; the fact
discovered embraces the place.from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this fact.
G
Information as to past user, or the past history, of the
object produced is not related to its discovery in the
setUng in which it is discovered. Information supplied by
'AIR 1947 PC 67
H
980
A
B
c
D
E
F
SUPREME COURT REPORTS
[2014] 14 S.C.R.
a person in custody that 'I will produce a knife concealed
in the roof of my house' does not lead to the discovery of
a knife; knives were discovered many years ago. It leads
to the discovery of the fact that a kriife is concealed in
the house of the informant to his knowledge, and if the
knife is proved to have been used in the commission of
the offence, the fact discovered is very relevant. But if to
the statement the words be added 'with which I stabbed
A', these words are inadmissible since they do not relate
to the discovery of the knife in the house of the informant."
20. In Mohmed lnayatul/ah V. The State of
Maharashtra", while dealing with the ambit and scope of
Section 27 of the Evidence Act, the Court held that:-
"Although the interpretation and scope of Section 27 has
been· .. the subject of several authoritative
pronouncements, its application to concrete cases is not
always free from difficulty. It will therefore be worthwhile
at the outset, to have a short and swift glance at the
section and be reminded of its requirements. The section
says:
"Provided that, when any fact is deposed to as
discovered in consequence of information received from
a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
the fact thereby discovered may be proved."
The expression "provided that" together with the phrase
"whether it amounts to a confession or not" show that the
section is in the nature of an exception to the preceding
G
provisions particularly Sections 25 and 26. It is not
necessary in this case to consider if this section
qualifies, to any extent, Section 24, also. It will be seen
that the first condition necessary for bringing this section
into operation is the discovery of a fact, albeit a relevant
H '(1976) 1 sec 828
VASANT SAMPAT DUPARE v. STATE OF
981
MAHARASHTRA [DIPAK MISRA, J.]
fact, in consequence of the information received from a A
person accused of an offeqce. The second is that the
discovery of such fact must be deposed to. The third is
that at the time of the receipt of the information the
accused must be in police custody. The last but the most
important condition is that only "so much of the B
information" as relates distinctly to the fact thereby
discovered is admissible. The rest of the information has
to be excluded. The word "distinctly" means "directly",
"indubitably", "strictly", "unmistakably''. The word has been
advisedly used to limit and defin'e the scope of the c
provable information. The phrase "distinctly relates to the
fact thereby discovered" is the linchpin of the provision.
This phrase refers to that part of the information supplied
by the accused which is the direct and immediate cause
of the discovery.