# VEERENDRA v. STATE OF MADHYA PRADESH

- **Citation:** [2022] 4 S.C.R. 225
- **Court:** Supreme Court of India
- **Decided:** 2022-05-13
- **Case number:** Criminal Appeal Nos. 5 & 6 of 2018
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/veerendra-v-state-of-madhya-pradesh-36114
- **Pages:** 51

## Headnote

Penal Code, 1860 - ss. 376A, 376 (2)(i), 302 - POCSO Act
- s. 6 - Rape and murder of a minor girl - Prosecution case that
appellant-accused had raped and throttled to cause death of victim,
who was daughter of appellant's cousin sister - While in custody
during interrogation, the appellant made disclosure statement and
thereafter, at his instance, the victim's corpse concealed underneath
gunny bags, was recovered - The post-mortem and the forensic
science laboratory (FSL) reports revealed commission of rape in a
diabolically and gruesome manner and causing of death by
throttling - Trial Court convicted him for offence punishable u/s
302, 376A, 376(2)(i) of IPC and sec. 6 of POCSO Act and awarded
him death sentence - High Court set aside the conviction u/s 376A
of IPC and the rest of the sentences passed by trial Court were
confirmed including death sentence recorded for the offence u/s
302 of IPC - On appeal, held: The recovery of the dead body,
which was in a concealed condition from an unused and dilapidated
building based on the disclosure statement of an accused is a crucial
incriminating circumstance - Another incriminating circumstance
considered against the appellant is the presence of nail marks on
his face and neck and also his failure to offer explanation - The
deceased was lastly seen with the appellant on that fateful day - It
is evident that an additional link is available in this case owing to
the failure on the part of the appellant to explain all the incriminating
circumstances in the personal examination conducted u/s 313 of
CrPC - The cumulative effect of all incriminating circumstances,
would definitely justify the finding of the High Court as to the guilt
of the appellant - The trial Court and also the High Court rightly
concluded that the death of the victim is homicidal - The Courts
have also rightly found that victim was raped - Thus, on a careful
examination of the matter in its entirety, there is no perversity or
[2022] 4 S.C.R. 225
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manifest illegality with respect to the concurrent finding of the trial
Court and the High Court that the appellant had committed the
offences.
Code of Criminal Procedure, 1973 - s. 354(3) - Death
sentence - This penalty is awardable to a culprit only the category
of the case falls under 'rarest of rare cases', the culprit has become
a threat to the society at large and beyond reformation and his
elimination is the only way for eradication of the threat - The present
case cannot be considered as one falling in the category of 'rarest
of rare cases' in which there is no alternative but to impose death
sentence - While commuting capital punishment, the appellant was
awarded life imprisonment without application of the provisions of
premature release/remission for a substantial length of period.
Penal Code, 1860 - ss. 302, 304 - Culpable homicide and
murder - The right approach in cases of culpable homicide is to
first find out whether the offence falls under any of the four clauses
viz., clauses firstly to fourthly u/s. 300 IPC - If it is so found, then
the Court has to see whether the case is covered by any one of the
five exceptions to section 300 IPC, which would make a culpable
homicide 'not amounting to murder' - The offence, if proved, to fall
under one of the said exceptions would be punishable u/s. 304,
either under Part 1 or Part 2 as the case may be, or otherwise it
would be murder punishable u/s. 302 IPC.
Criminal Procedure Code, 1973 - s.53A - Examination of
accused by medical practitioner - Non-conduct of - DNA Profiling
- There can be no doubt with respect to the position that a fair
investigation is necessary for a fair trial - However, solely on
account of defects or shortcomings in investigation an accused is
not entitled to get acquitted - The lapse or omission (purposeful or
otherwise) to carry out DNA profiling, by itself, cannot be permitted
to decide the fate of a trial for the offence of

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VEERENDRA
v.
STATE OF MADHYA PRADESH
(Criminal Appeal Nos. 5 & 6 of 2018)
MAY 13, 2022
[A. M. KHANWILKAR, DINESH MAHESHWARI
AND C. T. RAVIKUMAR, JJ.]
Penal Code, 1860 - ss. 376A, 376 (2)(i), 302 - POCSO Act
- s. 6 - Rape and murder of a minor girl - Prosecution case that
appellant-accused had raped and throttled to cause death of victim,
who was daughter of appellant's cousin sister - While in custody
during interrogation, the appellant made disclosure statement and
thereafter, at his instance, the victim's corpse concealed underneath
gunny bags, was recovered - The post-mortem and the forensic
science laboratory (FSL) reports revealed commission of rape in a
diabolically and gruesome manner and causing of death by
throttling - Trial Court convicted him for offence punishable u/s
302, 376A, 376(2)(i) of IPC and sec. 6 of POCSO Act and awarded
him death sentence - High Court set aside the conviction u/s 376A
of IPC and the rest of the sentences passed by trial Court were
confirmed including death sentence recorded for the offence u/s
302 of IPC - On appeal, held: The recovery of the dead body,
which was in a concealed condition from an unused and dilapidated
building based on the disclosure statement of an accused is a crucial
incriminating circumstance - Another incriminating circumstance
considered against the appellant is the presence of nail marks on
his face and neck and also his failure to offer explanation - The
deceased was lastly seen with the appellant on that fateful day - It
is evident that an additional link is available in this case owing to
the failure on the part of the appellant to explain all the incriminating
circumstances in the personal examination conducted u/s 313 of
CrPC - The cumulative effect of all incriminating circumstances,
would definitely justify the finding of the High Court as to the guilt
of the appellant - The trial Court and also the High Court rightly
concluded that the death of the victim is homicidal - The Courts
have also rightly found that victim was raped - Thus, on a careful
examination of the matter in its entirety, there is no perversity or
[2022] 4 S.C.R. 225
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manifest illegality with respect to the concurrent finding of the trial
Court and the High Court that the appellant had committed the
offences.
Code of Criminal Procedure, 1973 - s. 354(3) - Death
sentence - This penalty is awardable to a culprit only the category
of the case falls under 'rarest of rare cases', the culprit has become
a threat to the society at large and beyond reformation and his
elimination is the only way for eradication of the threat - The present
case cannot be considered as one falling in the category of 'rarest
of rare cases' in which there is no alternative but to impose death
sentence - While commuting capital punishment, the appellant was
awarded life imprisonment without application of the provisions of
premature release/remission for a substantial length of period.
Penal Code, 1860 - ss. 302, 304 - Culpable homicide and
murder - The right approach in cases of culpable homicide is to
first find out whether the offence falls under any of the four clauses
viz., clauses firstly to fourthly u/s. 300 IPC - If it is so found, then
the Court has to see whether the case is covered by any one of the
five exceptions to section 300 IPC, which would make a culpable
homicide 'not amounting to murder' - The offence, if proved, to fall
under one of the said exceptions would be punishable u/s. 304,
either under Part 1 or Part 2 as the case may be, or otherwise it
would be murder punishable u/s. 302 IPC.
Criminal Procedure Code, 1973 - s.53A - Examination of
accused by medical practitioner - Non-conduct of - DNA Profiling
- There can be no doubt with respect to the position that a fair
investigation is necessary for a fair trial - However, solely on
account of defects or shortcomings in investigation an accused is
not entitled to get acquitted - The lapse or omission (purposeful or
otherwise) to carry out DNA profiling, by itself, cannot be permitted
to decide the fate of a trial for the offence of rape especially, when
it is combined with the commission of the offence of murder as in
case of acquittal only on account of such a flaw or defect in the
investigation the cause of criminal justice would become the victim.
Evidence Act, 1872 - Circumstantial Evidence - Last Seen
Theory - In the instant case, the convic tion by the trial Court was
not solely based on "last seen theory" - The confirmation of the
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con viction and sentence in the stated manner by the High Court is
also not solely based on the "last seen theory" - Both the trial
Court and High Court relied on the testimonies of the oral witnesses
and other material evidences - Also, disclosure statement of the
accused, which was resulted in recovery of the dead body.
Partly allowing the appeal, the Court
HELD: 1. In view of the nature of the provision under
Section 53A Cr.P.C and the decisions referred, this Court is also
of the considered view that the lapse or omission (purposeful or
otherwise) to carry out DNA profiling, by itself, cannot be
permitted to decide the fate of a trial for the offence of rape
especially, when it is combined with the commission of the offence
of murder as in case of acquittal only on account of such a flaw or
defect in the investigation the cause of criminal justice would
become the victim. The upshot of this discussion is that even if
such a flaw had occurred in the investigation in a given case, the
Court has still a duty to consider whether the materials and
evidence available on record before it, is enough and cogent to
prove the case of the prosecution. In a case which rests on
circumstantial evidence, the Court has to consider whether,
despite such a lapse, the various links in the chain of
circumstances forms a complete chain pointing to the guilt of the
accused alone in exclusion of all hypothesis of innocence in his
favour. [Para 28][251-G-H; 252-A-C]
2. In the light of the above referred decisions, the
contentions of the appellant founded on the factum of non-holding
of DNA profiling and the provision under Section 53A, is only to
be repelled. As held in Sunil's case, a positive result of DNA test
would constitute clinching evidence against the accused. But, a
negative result of DNA test or DNA profiling having not been
done would not and could not, for that sole reason, result in failure
of prosecution case. So much so, even in such circumstances,
the Court has a duty to weigh the other materials and evidence
on record to come to the conclusion on guilt or otherwise of the
appellant herein and that exactly what was done by the trial Court
and then by the High Court, in the instant case. [Para 30][253-BD]
VEERENDRA v. STATE OF MADHYA PRADESH
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3. The High Court had interfered with the conviction of the
appellant under Section 376A IPC the question whether the rest
of the incriminating circumstances formed a complete chain
leading solely to the guilt of only appellant in exclusion of all
hypothesis in favor of his innocence, as held by the High Court.
Considering in detail all the incriminating circumstances and
materials available to support them that weighed with the High
Court. Suffice it to say that they would go to show that despite
what are eschewed a continuous and complete chain of
circumstances and materials supporting them, is available and
they are wholly inconsistent with the innocence of the appellant
and consistent only with his guilt. Above all, it is evident that an
additional link is available in this case owing to the failure on the
part of the appellant to explain all the aforesaid incriminating
circumstances. While being examined under Section 318, Cr.P.C.
in respect of all questions his answers were either 'it is false' or
'I do not know'. There is absolutely no case for the appellant
that all the incriminating circumstances were not put to him. In
view of Pattu Rajan's case and other decisions such as, Trimukh
Maroti Kirkan Vs. State of Maharashtra offering no explanation
on incriminating circumstances mentioned above would become
an additional link in the chain of circumstances. The cumulative
effect of all the aforesaid circumstances, referred to in detail
hereinbefore, would definitely justify the finding of the High Court
as to the guilt of the appellant. [Para 47][265-D-H]
4. The trial Court and also the High Court had concurrently
concluded that the death of the victim is homicidal in nature. This
Court has found, based on the evidence on record, that the Courts
have rightly found that the victim was raped. The diabolic and
gruesome manner in which the appellant had ravished the hapless
girl is evident from the grave injuries on her pudenda. There
occurred perennial tear of grade fourth extending up to anus and
that her uterus was torn and was coming out from the vagina. As
noticed above, the vaginal swab on examination revealed the
presence of blood and semen. Hence, the finding that the
deceased was subjected to rape warrants no interference. [Para
48][266-A-C]
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5. The question, now to be considered is whether the
homicidal death of the victim amounts to murder or whether it
falls either under Section 304(1) or 304(2) as contended by the
appellant. The impugned judgment would reveal that the High
Court concurred with the finding of the trial Court that the
homicidal death of the victim amounts to murder. The right
approach in cases of culpable homicide is to first find out whether
the offence falls under any of the four clauses viz., clauses firstly
to fourthly under Section 300 IPC. If it is so found, then the Court
has to see whether the case is covered by any one of the five
exceptions to section 300 IPC, which would make a culpable
homicide 'not amounting to murder'. The offence, if proved, to
fall under one of the said exceptions would be punishable under
Section 304, either under Part 1 or Part 2 as the case may be, or
otherwise it would be murder punishable under Section 302 IPC.
In the case on hand both the trial Court and the High Court, had
analysed evidence on record and found that the appellant had
pressed the neck of the victim so hard unmindful of the fact that
she was aged only 8 years and caused internal hemorrhage. The
cause of death was asphyxia due to throttling. The nature of the
injuries found on the neck of the deceased would reveal the
pressure exerted by the appellant on the neck. The fact that the
victim was a hapless girl aged only 8 years has to be taken into
account while considering the question. Intention is a subjective
element and every sane person must be presumed to intend the
result that his action normally produces. Hence, constriction of
the neck of a girl child aged about 8 years by fingers or palm by a
young man aged 25 years, with such force to cause the injuries
mentioned hereinbefore cannot be said to be sans intention to
take her life. If the said act was subsequent to commission of
rape in the diabolic and gruesome manner revealed from the grave
injuries sustained on her private parts, causing death alone can
be inferred from the circumstances. If the act of constricting the
neck with such force resulting in the stated injuries preceded
the offence of rape, then, the manner by which she was ravished
should be taken only as an act done knowingly that it is so
imminently dangerous that it must in all probability cause death
or such bodily injury as is likely to cause death. Thus, viewing in
any angle the homicidal death would fall either Clause 1 or Clause
VEERENDRA v. STATE OF MADHYA PRADESH
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4 of Section 300 IPC. A feeble attempt was made by the appellant
to contend that the Courts had erred in finding the appellant guilty
under Section 300 IPC, punishable under 302 IPC and that if at
all he has to be convicted for causing death of the victim it ought
to have been under Section 304 IPC. It is to be noted, once it is
found that the act falls under any one of the 4 clauses under Section
300 IPC, to bring it out of its purview it must be proved that it
falls under any one of the five exceptions to Section 300 IPC.
There is nothing on record and no contention was also raised by
the appellant, with support of material, to show that any one of
the said five exceptions attracts in this case. In fact, the only
contention urged and also taken in the written submission by the
appellant is that the deceased had died due to an injury on her
neck which had occurred quite naturally during the commission
of the rape. This Court has no hesitation to hold that the said
contention is palpably untenable and at any rate, not at all sufficient
to bring the offence under any one of the five exceptions to
Section 300 IPC. The long and short of the discussion is there is
no reason to interfere with the finding of the Trial Court, which
was confirmed by the High Court, that the appellant is guilty of
committing murder punishable under Section 302 IPC. Thus, on
a careful examination of the matter in its entirety, we do not find
any perversity or manifest illegality with respect to the concurrent
finding of the trial Court and the High Court that the appellant
herein had committed offences punishable under Section 302 IPC,
376(2)(i) IPC and Section 6 of the POCSO Act. [Para 50][267-AH; 268-A-D]
6. The next question is whether death sentence awarded
by the trial Court and confirmed by the High Court for the
conviction of the offence of murder be maintained or substituted?
This penalty is awardable to a culprit only the category of the
case falls under 'rarest of rare cases', the culprit has become a
threat to the society at large and beyond reformation and his
elimination is the only way for eradication of the threat. For
deciding the said question various aspects have to be considered.
On a careful scanning of the consideration made by the trial Court
as also the High Court for awarding the sentence for the
conviction under Section 300 IPC, punishable under section 302
IPC, this Court is of the view that the question regarding the
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correctness of the death sentence awarded to the appellant
requires further consideration, taking into account the statutory
requirements under Section 354(3) Cr.P.C. For awarding
termination of natural life, a careful scrutiny is required. [Para
52][268-F-H; 269-A]
7. It is true that all murders are inhuman. For imposing
capital sentence, the crime must be uncommon in nature where
even after taking into account the mitigating circumstances the
Court must be of the opinion that the sentence of imprisonment
for life is inadequate and there is no alternative but to impose
death sentence. The heinous and brutal nature of the commission
of crime, viz., brutal rape and murder of an eight-year old girl
child who is none other than the daughter of his own cousin, that
too in a hapless situation, is definitely an aggravating
circumstance. The nature of the injuries caused on the private
parts of the victim as is evident from the evidence of PW10 with
Ext.P17 report would definitely shock the conscience. At the same
time, the principles enunciated by this Court in the matter of
awarding of death sentence and in such circumstances, the
undisputed and indisputable fact that the appellant had no criminal
antecedents and he hails from a poor socio-economic background
and also his unblemished conduct inside the jail cannot go
unnoticed. So also, it is a fact that at the time of commission of
the offence the appellant was aged 25 years. Hence, viewing the
issue taking into account the aforesaid aspects, this Court does
not find any reason to rule out the possibility and the probability
of the reformation and rehabilitation of the appellant. The long
and short of the discussion is that the present case cannot be
considered as one falling in the category of 'rarest of rare cases'
in which there is no alternative but to impose death sentence.
[Para 56][273-C-F]
8. Thus, taking into account the fact that in the case on
hand a hapless 8 year old girl child, who is none other than the
daughter of appellant's cousin sister raped and murdered and
that too, in an extremely brutal manner revealed from the
evidence on record, we are of the considered view that course
adopted in the decision in Swamy Shraddananda's case and
reiterated in Sriharan's case has to be adopted in this case. In
VEERENDRA v. STATE OF MADHYA PRADESH
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other words, even while commuting capital punishment, the
appellant has to be awarded life imprisonment without application
of the provisions of premature release/remission for a substantial
length of period. On such consideration we are of the view that it
would be just and proper to award punishment of imprisonment
for life to the appellant for the offence punishable under Section
302 IPC, by providing for an actual imprisonment for a period of
30 (thirty) years without application of the provisions of premature
release/remission. [Para 58][274-C-E]
9. In the circumstances, these appeals are partly allowed
as hereunder: (i) The conviction of the appellant for the offences
punishable under Section 302 and 376(2)(i), IPC and conviction
for the offence punishable under Section 6 of POCSO Act is upheld
and the sentences awarded to him for the conviction therefor,
are confirmed, for the offence under Section 302 IPC; (ii) However,
the death sentence awarded to the appellant for the offence under
Section 300, IPC punishable under Section 302, IPC is commuted
to that of imprisonment for life with the stipulation that he shall
not be entitled to premature release or remission before
undergoing actual imprisonment for a period of thirty (30) years;
(iii) The other terms of sentences awarded to the appellant
including fine amount and default stipulations also stand
confirmed. All the substantive sentences awarded to the appellant
shall run concurrently. [Para 59][274-F-H; 275-A]
State of WB v. Mir Mohammed Omar and Ors. (2000) 8
SCC 382 : [2000] 2 Suppl. SCR 712; Sunil v. State of
Madhya Pradesh (2017) 4 SCC 393; State of Rajasthan
v. Kashi Ram (2006) 12 SCC 254 : [2006] 8 Suppl.
SCR 501; Pattu Rajan v. State of Tamil Nadu (2019) 4
SCC 771 : [2019] 5 SCR 535; Dalip Singh and Ors. v.
State of Punjab reported in AIR 1953 SC 364 : [1954]
SCR 145; State of West Bengal v. Dipak Haldar & Anr.
(2009) 7 SCC 288 : [2009] 8 SCR 530; R. Shaji v. State
of Kerala (2013) 14 SCC 266 : [2013] 3 SCR 1172;
Shankar Kishanrao Khade v. State of Maharashtra
(2013) 5 SCC 546; Pappu v. State of Uttar Pradesh
(Crl.A.No. 1097-1098 of 2018 decided by the Supreme
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Court); Union of India v. Sriharan (2016) 7 SCC 1 :
[2015] 14 SCR 613 - relied on.
Rajendra Pralhadrao Wasnik v. State of Maharashtra
(2019) 12 SCC 460 : [2018] 14 SCR 585; Tahsildar
Singh & Anr. v. State of UP AIR 1959 SC 1012 : [1959]
Suppl. SCR 875; Pudhu Raja & Anr. v. State (2012) 11
SCC 196 : [2012] 8 SCR 740; State of Haryana v.
Bhagirath (1999) 5 SCC 96 : [1999] 3 SCR 529; Mohd.
Arif v. Supreme Court of India (2014) 9 SCC 737 :
[2014] 11 SCR 1009; Nizam and Anr. v. State of
Rajasthan (2016) 1 SCC 550 : [2015] 10 SCR 786;
Arabindra Mukherjee v. State of West Bengal (2011)
14 SCC 352; Khurshid Ahmed v. State of Jammu &
Kashmir (2018) 7 SCC 429 : [2018] 6 SCR 1121;
Sukhar v. State of UP (1999) 9 SCC 507 : [1999] 3
Suppl. SCR 314; Chanakya Dhibar v. State of West
Bengal (2004) 1 Crimes 196; Govindaraju @ Govinda
v. State (2012) 4 SCC 722 : [2012] 5 SCR 67; Jaharlal
Das v. State of Orissa AIR 1991 SC 1388 : [1991] 2
SCR 298; Mohd. Mannan @ Abdul Mannan v. State of
Bihar (2011) 5 SCC 317 : [2011] 5 SCR 518; Kansa
Behera v. State of Orrisa AIR 1987 SC 1507 : [1987] 2
SCR 1096; Trimukh Maroti Kirkan v. State of
Maharashtra (2006) AIR SCW 5300; Swamy
Shraddananda v. State of Karnataka (2008) 13 SCC
767 : [2008] 11 SCR 93; Union of India v. Sriharan
(2016) 7 SCC 1 : [2015] 14 SCR 613 - referred to.
Case Law Reference
[2018] 14 SCR 585
referred to
Para 13
[1959] Suppl. SCR 875
referred to
Para 16
[2012] 8 SCR 740
referred to
Para 16
[1999] 3 SCR 529
referred to
Para 16.1
[2000] 2 Suppl. SCR 712
relied on
Para 16.3
(2017) 4 SCC 393
referred to
Para 25
[2014] 11 SCR 1009
referred to
Para 29
VEERENDRA v. STATE OF MADHYA PRADESH
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[2015] 10 SCR 786
referred to
Para 32.1
[2006] 8 Suppl. SCR 501
relied on
Para 32.2
(2011) 14 SCC 352
referred to
Para 32.3
[2019] 5 SCR 535
relied on
Para 32.4
[1954] SCR 145
relied on
Para 35
[2018] 6 SCR 1121
referred to
Para 35.1
[1999] 3 Suppl. SCR 314
referred to
Para 36
[2012] 5 SCR 67
referred to
Para 40
[1991] 2 SCR 298
referred to
Para 41
[2011] 5 SCR 518
referred to
Para 41
[2009] 8 SCR 530
relied on
Para 43
[1987] 2 SCR 1096
referred to
Para 44
[2013] 3 SCR 1172
relied on
Para 44
(2006) AIR SCW 5300
referred to
Para 47
[2008] 11 SCR 93
referred to
Para 57
[2015] 14 SCR 613
relied on
Para 57
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 5 & 6 of 2018.
From the Judgment and Order dated 14.07.2016 of the High Court
of Madhya Pradesh, Bench at Gwalior in CRRFC No. 01 of 2015 and
Crl. Appeal No. 39 of 2015.
Ms. Sonia Mathur, Sr. Adv., (SCLSC), Rishi Malhotra, Puneet
Pathak, Sai Krishna, Advs. for the Appellant.
Pulkit Agarwal, Ms. Sakshi Vijay, Pashupathi Nath Razdan, Advs.
for the Respondent.
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The Judgment of the Court was delivered by
C. T. RAVIKUMAR, J.
1. The appellant, who was to avuncularise being the cousin brother
of victim's mother, was found to have stripped, stuprated and strangled
to cause her death. The incident took place on 19.9.2014 between 08:30
pm and 09:30 pm, inside the ruined bada (used in the sense 'varanda') of
Jagan Sindhi, which is a dilapidated, worthless building, situated at Thakur
Das Baba Road, Dabra in the district of Gwalior in Madhya Pradesh.
Hereafter in this judgment it will be referred to as "occurrence place"
only, for brevity. The victim was aged 8 years. The appellant, who is a
convict - awarded with capital sentence, calls in question the common
judgment dated 14.7.2016 of the High Court of Madhya Pradesh at
Gwalior in Criminal Reference Case No.101/2015 titled as "State of
Madhya Pradesh vs. Veerendra" and in Criminal Appeal No.39/2015
titled as "Veerendra Vs. The State of Madhya Pradesh". Over the stated
incident, Crime No.857/2014 was registered at Police Station, Dabra,
soon after the noon of night, to be precise at 00:05 hrs on 20.09.2014.
The appellant was arrested on 20.9.2014 at about 04:00 pm. Upon
culmination of the trial for offences punishable under Sections 364A,
376A, 376(2)(i), 302 and 201 of the Indian Penal Code (for short, "IPC")
and Section 6 of the Protection of Children from Sexual Offence Act,
2012 (for short, "POCSO Act") in Session Trial No.642/2014 before the
Court of IInd Additional Sessions Judge, Dabra, conviction was recorded
against him for the offences punishable under Sections 302, 376A,
376(2)(i) IPC and Section 6 of POCSO Act. Consequently, he was
awarded death sentence on first two counts, subject to confirmation by
the High Court and life sentence under the 3rd and 4th counts besides
sentence of fine of Rs.2,000/- each, on all counts. All the substantive
sentences were ordered to run concurrently. As ordered under the said
judgment, in respect of sentence of capital punishment, reference was
made to the High Court of Madhya Pradesh as CRRFC.01/2015. The
appellant herein filed Criminal Appeal No.39/2015 challenging his
conviction for the stated offences and consequential sentences imposed
therefor. As per the common judgment, the High Court partly allowed
the appeal as well as the reference made to it as hereunder: -
"In the result, the appeal filed by the appellant is hereby partly
allowed. His conviction as well as sentence of offence under
Section 376A of IPC is hereby set aside on technical ground
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whereas the conviction and sentences of offence under Sections
376(2)(i) and 302 IPC and Section 6 of the POCSO Act recorded
by the trial court are confirmed. The reference sent by the trial
court is partly accepted. Death sentence recorded for the offence
under Section 302 IPC is hereby confirmed by us."
Hence these appeals.
2. Briefly stated, the prosecution case is as follows:
Laxmibai Batham (PW-1) and Shri Ganesh are the parents of the
deceased minor girl aged 8 years. Brij Lal (PW-2) and Janki (PW-3) are
her maternal grand- parents. PW-1 is the cousin sister of the appellantconvict. In other words, the appellant-convict is an uncle (mama) of the
deceased minor girl. The incident occurred between 08:30 pm and 09:30
pm on 19.9.2014. On that fateful day at about 08:30 pm, Raju Badam,
who is the father of the appellant, sent her to purchase a bundle of bidi
from a nearby shop. While proceeding to the shop she went past the
house of Sri Patiram Basudev @ Pappu (PW-4). The appellant who
was there, with PW-4 and one Rakesh, happened to see her. They
gathered there for drinking. Upon seeing the victim, the appellant asked
her whither she was going and then, he followed her after promising the
retinue that he would return. Thereafter she was found missing. After a
fervent, futile search till midnight at 00:05 hrs on 20.09.2014 PW-1 lodged
Ext.P1-complaint about her missing. On 20.09.2014 itself, upon
interrogation of the appellant and the aforesaid Rakesh and Patiram
Basudev @ Pappu, the appellant was arrested. While in custody, the
appellant made Ext.P5-disclosure Statement and thereafter, at his
instance, the victim's corpse concealed underneath gunny bags, was
recovered. A team of two doctors conducted autopsy on the body of the
deceased and the post-mortem and the forensic science laboratory
(FSL)reports revealed commission of rape in a diabolically and gruesome
manner and causing of death by throttling. Subsequent to the filing of the
final report and committal of the case, the trial Court initially framed
charges against the appellant for offences punishable under Sections
364A, 376(2)(i), 302, 201 IPC and under Sections 3, 5 and 6 of the
POCSO Act. After the commencement of the trial vide order dated
16.12.2014, charge for offence under Section 376A was also framed
against the appellant.
3. Before the trial Court, for establishing the aforesaid charges
against the appellant, the prosecution had examined PWs 1 to 19 and
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marked exhibits P-1 to P-26 documents besides identifying the material
objects. In the examination under Section 313 of the Code of Criminal
Procedure (for short 'Cr.P.C.') the appellant had failed to explain the
incriminating circumstances against him. Though he was asked to enter
on his defence he did not adduce any evidence. Upon analyzing the
evidence on record, viz., the chain of events and circumstantial evidence
thereof, the trial Court convicted and sentenced him as afore-stated. It
is in reappreciation of the said chain of events and the circumstantial
evidence that the High Court partly allowed the aforesaid appeal and
also the Criminal Reference Case, in the stated manner.
4. In these appeals the appellant has candidly stated thus:-
"The Petitioner at the very outset and with great respect confines
this petition with regard to the aspect of the sentencing awarded
by the courts below."
After having stated thus the appellant has, virtually, raised various
contentions to challenge the very common judgment dated 14.07.2016
itself. Still, it will not be inappropriate to refer to 'the questions of law'
framed under "A" and "B" in the contextual situation. They read as
hereunder: -
"A. Whether the conviction of the petitioner u/s 302 IPC is
sustainable in view of the medical evidence on record which
categorically suggested the fact that the deceased had died due
to injuries sustained on her private part?
B. Whether any intention to murder a prosecutrix can be attributed,
the death of which has occurred in the course of commission of
alleged rape?"
5. In spite of the stated nature of the contentions, the circumstances
and also what would be deducible therefrom we are inclined to consider
the appeal, on all permissible grounds, taking note of the fact that the
appellant herein has been handed down capital sentence for the conviction
under 302 IPC, based on circumstantial evidence. However, we cannot
be unmindful of the scope and delineated contours of an appeal by special
leave under Article 136 of the Constitution of India. It is worthy to note
that in such an appeal, unlike in a regular appeal, this Court would not
undertake the exercise of an indepth consideration by way of reappreciation of evidence. Normally, in such an appeal only in rare and
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exceptional cases wherein manifest illegality appears to have infected
the impugned judgment (going by the case of the appellant) concerned
that this Court will go beyond the stated scope of an appeal by special
leave. In this case, the trial Court convicted the appellant based on
circumstantial evidence and the High Court though partly allowed the
appeal and the reference by setting aside the conviction under Section
376A IPC maintained the conviction and the sentences imposed for the
other offences based on circumstantial evidence. That apart, the High
Court disagreed with the findings of the trial Court as to the admissibility
and evidentiary value of the underwear seized from the occurrence place
(Art. F described as shaddy), upon treating it to be that of the appellant.
In the circumstances thus obtained an exercise to reassure as to the
existence of a complete chain of circumstances pointing to the guilt of
the appellant alone, in exclusion of every hypothesis compatible with his
innocence, is to be undertaken.
6. In the adjudicative pursuit the trial Court obviously considered
the following circumstances: -
a) Post Mortem report together with the expert opinion of
PW-10, the Doctor who conducted autopsy on the body of
the deceased and Ext.P24 - FSL report revealing that the
victim was raped and murdered;
b) The deceased was aged about 8 years and therefore, fell within
the definition of 'child', under Section 3 of the POCSO Act;
c) The deceased was lastly seen with the accused at about 08:30
pm on 19.09.2014 and thereafter she was found raped and
murdered;
d) After 09.00 pm on 19.09.2014 the accused was seen coming
out of the Bada of the 'occurrence place';
e) Based on the disclosure statement of the accused (Ext.P5)
and at his instance the nude dead body of the victim, concealed
beneath gunny bags, was recovered from the 'occurrence
place';
f)
Finger nail scratches were found on the body of the accused;
g) Clothes of the deceased were recovered in consequent to the
information given by the accused;
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h) Semen was present in the vaginal swab as also on the clothes
of the accused and the deceased;
i)
Human blood was found on the gunny bags and also the clothes
of both the accused and the deceased;
j)
Additional link on account of the failure on the part of the
accused to explain the incriminating circumstances put to him
during the examination under Section 313, Cr.P.C.
7. As stated earlier, as per the impugned common judgment in the
appeal as also in the reference made to the High Court for confirmation
of the death sentence, the High Court set aside the conviction under
Section 376A IPC. We may hasten to add that in spite of such interference
no appeal(s) has been filed by the prosecution. It is true that despite
such interference the High Court has concurred with the conviction for
the offence punishable under Section 302 IPC and confirmed the capital
sentence awarded by the trial Court. The High Court has also sustained
the conviction for the other offences and also the sentences imposed
therefor. What is noticeable is that even while concurring with the
conviction and the sentences imposed as stated above, on certain
conclusions such as the underwear found at the place of occurrence as
that of the appellant there is no concomitancy among the trial Court and
the High Court. The conviction under Section 376A IPC was actually
interfered with on technical reasons. It is bearing in mind the aforesaid
aspects and circumstances that the rival contentions are to be adverted
to and appreciated.
8. Heard Ms. Sonia Mathur, learned Senior Counsel appearing as
Amicus Curiae and Mr. Pashupatinath Razdan, learned Standing Counsel
for the State of Madhya Pradesh. These appeals were heard together
and this judgment will dispose both of them.
9. The learned Amicus Curiae appearing for the appellant submitted
that the conviction of the appellant is founded on circumstantial evidences
and a scanning of the materials on record and the circumstances relied
on for his conviction, would reveal that the chain of circumstances was
not complete. Furthermore, it is submitted that even a cursory glance of
such evidence and the materials relied on would reveal that the appellant
was entitled to get the benefit of doubt. Dilating the contentions it is
submitted that there is no medical evidence pointing to the presence of
the accused in the place of occurrence. Though blood and semen were
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found on the pants of the appellant recovered from his house on the next
day of the occurrence, the FSL report is inconclusive and it did not connect
the appellant to the blood and semen found on the clothes of the deceased.
Following contentions were also raised on behalf of the appellant: -
"that as per the report, in the matter of analyzation of the samples
benzidine/ phenolphthalein and crystal tests were conducted and
among them crystal test alone is a conclusive test. Ergo, in the
absence of worksheet to demonstrate the nature of tests conducted
on each of the items the report and the respective conclusions
ought to have been discarded; that though in the list of articles
seized from the house of the appellant and sent for examination,
the pants seized from his house was described as the one worn
by him at the time of the incident none of the witnesses had testified
the fact that it was the same which he was wearing on the day of
occurrence; that the MLC of the appellant was conducted in clear
violation of Section 53A of the Cr.P.C.; that as relates nail scratches
found on the face and neck of the appellant, allegedly caused by
the victim, the evidence regarding the scratches is unreliable as
despite the collection of nail samples of the deceased by PW-10
they were not sent to the laboratory for analysis."
10. It is the further contention on behalf of the appellant that though,
PW-14 testified that the finger nail injuries were seen on the right cheek
of the appellant, his MLC would indicate finger nail injuries only on the
left side of the face and neck. At any rate, no reliance should have been
given on that issue as the appellant was in the custody of the police even
before his formal arrest, as spoken by PW-4. It was also contended that
the date of birth of the victim was not proved by producing the school
records. Furthermore, it was contended that the conclusion that the
deceased was lastly seen in the company of the accused was arrived at
relying on the oral testimonies of PW-2 and PW-4 without proper
appreciation of various relevant aspects. According to the appellant neither
PW-2 nor PW-4 had informed about the same to the police at the first
instance, i.e., at the time of lodging complaint regarding missing of the
victim. The non-examination of one Rakesh who, according to the
prosecution, joined PW-4 and the appellant for drinking during that night
and that of Sri Ganesh, the father of the deceased, who was an attesting
witness to certain mahazars for the recoveries and seizures, is fatal to
the case of the prosecution. In regard to the testimony of PW-12 that he
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had seen the appellant coming out of the bada of Jagan Sindhi, in the
night of 19.09.2014 at about 09:00 pm, it is submitted that it ought not to
have been taken as a link in the chain of circumstances, as his statement
under Section 161 Cr.P.C. was taken belatedly. May be as an alternative
contention it is contended that PW-12 is a chance witness and his
testimony is not creditworthy.
11. As relates, another link in the chain of circumstances viz., the
recovery of the body and clothes of the deceased at the instance of the
appellant it was contended that no independent witness was examined
to prove the same. In that regard, it was further submitted that the
recoveries and seizure ought not to have been taken as proved by
PW-2 as he is a related witness being the maternal grandfather of the
deceased. It was contended that the clothes of the appellant allegedly
recovered from his house were not sealed and therefore, the failure of
the appellant to explain the presence of human blood and semen on his
clothes recovered from his house, could not have been relied on as a
circumstance against him. In that regard, it was further contended that
no DNA test was conducted to connect the appellant to the samples
found on the body of the deceased and thereby Section 53A Cr.P.C.,
was violated. Based on the aforesaid contentions, the learned Amicus
Curiae submitted that the conviction founded on circumstantial evidence
is unsustainable on account of such glaring discrepancies, lacuna and
the stated lapses on the part of the prosecution. At any rate, the
circumstances relied on would not establish continuity in the links of the
chain of circumstances to lead to an irresistible conclusion regarding the
guilt of the appellant. The nub of the contentions is that appellant is
entitled to get the benefit of doubt in view of such circumstances and as
such, the conviction and sentence awarded are liable to be set aside and
he is entitled to be acquitted.
12. On the contrary, the learned counsel for the State sought to
get sustained the judgment contending that the concurrent findings and
the reasons assigned therefor, are nothing but outcome of proper analysis
and appreciation/re-appreciation of evidence on record, by the trial Court
and the High Court. The learned counsel urged that the contention based
on failure to comply with Section 53A Cr.P.C. is absolutely bereft of any
basis or merits as after rightly construing the position of law under Section
53A Cr.P.C., the High Court had properly appreciated the remaining
evidence to arrive at the conclusion that the prosecution had succeeded
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in establishing a complete chain of circumstances pointing to the guilt of
7the appellant alone. It was contended that the testimonies of PWs 2, 4
and 12 are uncontroverted and credible and, therefore, rightly accepted
and acted upon by the trial Court and the High Court. Though, PWs 2
and 4 were thoroughly cross-examined on behalf of the appellant, nothing
could be elicited to discredit their version that they had seen the deceased
lastly in the company of appellant, just under an hour before the
commission of the gruesome acts of rape and murder. Hence, the 'last
seen theory' was rightly applied, it was submitted.