Disposed

State v. Abdul Nassar

Kerala HC28 Feb 2018DSR/3/2013

Case brief

AI extract

What is this about?

Reference for confirmation of a death sentence, heard with the convicted person's appeal against conviction for the rape and murder of a nine-year-old girl, resting on circumstantial and scientific evidence. Holding the aggravating circumstances overwhelming and finding no mitigating circumstances, the court dismissed the appeal and confirmed the death sentence as a rarest of rare case.

What did the court decide?

Crl.Appeal No.1452/2013 dismissed; DSR No.3/2013 allowed, confirming the death sentence awarded to the accused.

State Vs Abdul Nassar — Child Sexual Offences (POCSO) | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939

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Death Sentence Ref..No. 3 of 2013

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AGAINST THE ORDER/JUDGMENT IN SC 487/2012 of SESSIONS COURT, MANJERI DATED 31/7/2013

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PETITIONER/COMPLAINANT

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STATE

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BY ADV.SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN

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RESPONDENT/ACCUSED

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ABDUL NASSAR, S/O KUNHIMUHAMMED, PALAPARAMBATH (H), PONNAMKALLU, CHULLIYODU, AMARAMPALAM (IN CUSTODY)

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BY ADV. SRI.T.MADHU BY ADV. SRI.K.V.BINOD

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THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 20-02-2018 ALONG WITH CRL.APPEAL NO.1452/2013,THE COURT ON 28-02-2018 DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & P.SOMARAJAN, JJ.

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========================== DSR No.3/2013 & Crl.Appeal No.1452/2013

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===========================

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Dated this, the 28^th day of February, 2018

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J U D G M E N T

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Shaffique, J.

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The above two cases arise from the judgment in SC No.487/2012 of the Sessions Court Manjeri. The appellant/accused in Crl.Appeal No.1452/13 was charge sheeted for offence u/s 376, 302 and 201 of I.P.C. After trial, he was found guilty and sentenced to death, subject to confirmation of this Court, u/s 302 I.P.C. He is also sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `1,000/- in default of which to undergo rigorous imprisonment for 2 months u/s 376 I.P.C. which is to be set off u/s 428 of Cr.P.C. Since the Sessions Court had sentenced the accused to be hanged until death, the matter is referred to this Court and numbered as DSR No.3/2013. The accused has also preferred an appeal as Crl.Appeal No.1452/2013 challenging the judgment of the Sessions Court.

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The short facts as stated by the prosecution are as

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:2:-

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under:-

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A girl aged 9 years proceeded to the madrassa from her house, at about 6.30 am on 4/4/2012. On the way to the madrassa, she went to her friend's house, with an intention to proceed to the madrassa along with her. Prosecution alleges that the accused, who was the father of her friend, was alone at the house at that time. He committed rape on her, strangled and smothered her and she died. He also concealed the body under the cot in the bed room of his house and thereafter hid the dead body in the bathroom. His intention was to dispose of the dead body in the septic tank situated in the said house compound. Therefore, the accused had committed the offences alleged.

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In order to prove the aforesaid allegations, prosecution examined PW1 to PW24 and marked Exts.P1 to P25. MO1 to MO17 were the material objects produced and identified.

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Learned counsel for the appellant/accused contended that there was no evidence to prove the offence against the accused. The dead body was found in the bathroom which was separated from the house of the accused. The accused was not in the house at the relevant time. Someone else had committed the

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:3:-

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murder and the police had wrongfully implicated the accused to the crime. At any rate, it is submitted that since the case rests on circumstantial evidence and the circumstances relied upon have not been proved to the hilt, the conviction is bad in law. It is further argued that, at any rate, capital punishment by death was not at all required especially when the case rests upon certain circumstances alone and the probability of some other person committing the crime is always there.

¶30

On the other hand, learned Public Prosecutor supported the judgment of the Court below. It is stated that the dead body of the minor was recovered from the bathroom of the accused and there is enough evidence to suggest that initially the dead body was hidden beneath the cot in the bedroom of the accused. It is the accused who had shifted the dead body to the bathroom. He had even removed few slabs of the septic tank and his intention was to dumb the body into the septic tank.

¶31

Learned Public Prosecutor argued that a very heinous crime has been committed. A small girl aged 9 years had gone to her friend's house while proceeding to the madrassa. The crime is committed by a person, father of her friend, who is supposed to

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:4:-

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behave only in a fatherly manner. But when she reaches the house, he turns into an animal, a predator and commits rape and murder. According to the Public Prosecutor, he does not deserve any sympathy and none of the circumstances relied upon by the Apex Court as extenuating circumstances arise in the case. The accused deserves the death penalty and there are no circumstances to convert the said penalty into any other punishment. The learned Public Prosecutor further contends that when the evidence, though circumstantial in nature, clearly points out to the involvement of the accused in the crime, the accused is not entitled for any leniency.

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As already mentioned, the prosecution rests upon circumstantial evidence. Let us now consider whether the case has been proved beyond reasonable doubt against the accused, while considering the evidence tendered in the case.

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PW1 is the uncle (mother's brother) of the deceased. He gave FI statement regarding the fact that the girl was missing from their house. Ext.P1 is the FI statement given at 7.00 p.m on 4/4/2012. In the statement, he has stated that she had gone to the madrassa at about 7 am on 4/4/2012. Since she did not come

¶37

DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:5:-

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back by about 10 am, he had gone and enquired at the madrassa and he was told that she had not reached there. When enquired with the people in the locality, they told that she was seen within 100 metres of the madrassa. They went and checked up in the locality and the house of relatives where she would normally go. Since no information was received, the complaint was filed.

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PW9 is the mother of the deceased child. She deposed that the victim was studying in the 3^rd standard in Government L.P. School at Kavalamukkatta in 2012. The birth certificate had been produced by the Headmaster of the School PW5 and marked as Ext.P3. In Ext.P3, her date of birth was shown as 25/8/2002.

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PW10, the teacher in the madrassa deposed that she was studying in the 3^rd standard and normally she comes at 7.00 a.m and the class will be over by 9.00 a.m. On 4/4/2012, there was examination, but she did not come.

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PW2 is another uncle (mother's brother) of the deceased. He deposed that while conducting search for the minor girl, he got information from a lady by name Amina that she saw her grand daughter and the victim going together in the direction of madrassa. When he enquired in the madrassa, he was informed

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:6:-

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that she did not reach there. The house of the accused is very near to the madrassa. PW2 conducted a search near the house of the accused also. The house of the accused was found locked. During a second search, PW2 again reached near the house of the accused by around 4.00 p.m. Even at that time, the house was found locked. By about 6.45 p.m, he along with certain other persons reached near the house of the accused. The accused was found sitting in the veranda. When they asked the accused about the girl, he told them that he also went in search for her and he reached the house only at that time. PW2 also searched the shed and the bathroom of the said house. He asked the accused to open the house in order to conduct a search. Accused told him that the key was with his wife and that he would go and bring it. PW2 therefore went to search in the pond which was situated near the house of accused. He again went near the madrassa where he met few other persons including PW8. However, PW2 had some suspicion regarding the accused which he communicated to them. They therefore came to the house of accused. They found the house of accused locked. PW12 had a torch with him. He went to the bathroom and found a heap of clothes. He called

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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others. PW8 entered the bathroom and removed the clothes and found the dead body of the girl lying beneath the clothes. They shouted for the people in the locality. Many people gathered and the police also had come. PW8 and PW12 who were also along with PW2 had supported the above version.

¶49

On receiving information, police party had come to the site and was convinced that it was a case of murder. In the meantime, people in the locality had caught hold of the accused and he was detained. He was taken into custody and was taken to Medical College Hospital. Statement of the accused was also recorded. He stated that he suffered injuries while he was assaulted by the local people. Postmortem was conducted by PW22. He had taken note of 37 ante-mortem injuries. According to him, the deceased died due to manual compressive and ligature constrictive strangulation. He also opined that the injuries on the body and external genitalia were suggestive of forcible vaginal penetrative sex. There was also evidence of attempted smothering/stifling the cry. He also identified MO10, MO12 and MO13 pieces of shawl, which according to him would have been used for ligature strangulation.

¶50

DSR No.3/2013 & Crl.Appeal No.1452/2013

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The investigating officer had also taken steps for conducting scientific evidence by sending about 16 sealed packets to the Forensic Science Laboratory. PW20 had conducted the examination of seminal stain on item Nos.1 to 5, 12 and 13(a) and the same was detected in all those items. The items were midi skirt MO7, a dhoti MO14, a towel and vaginal swab. Blood was also detected on the midi skirt, petticoat, dhoti, a full sleeve shirt, cotton gauze etc. The blood was found to be of human origin. Further, nail cuttings were also examined by PW20. But no foreign tissues were detected. Various other items were sent by PW20 for DNA analysis. PW21 has conducted the DNA analysis. DNA typing showed that the seminal stains in item Nos.1 and 13(a) belonged to the accused. Item No.1 is the midi skirt and item No. 13(a) is the vaginal swab. Item No.16 was the blood sample taken from the accused. It is further reported that the DNA typing showed that the blood stains in items Nos. 5 and 6 and the cells on the nail cuttings in item Nos.17(a) and 17(b) belonged to the accused. Item No.5 is the reddish brown coloured torn single dhoti and item No.6 is the green coloured torn and soiled full sleeve shirt with self lines. Further DNA typing shows that item

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:9:-

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Nos.1, 7, 8 and 12 and vaginal cells in item No.13(a) belonged to the deceased. Item No.7 is the blood stain collected in cotton gauze from the floor beneath the cot and item No.8 is the blood stain collected in the cotton gauze from the cot. Ext.P14 is the report prepared by PW21.

¶56

These facts would show that PW2, PW8 and PW12 had seen the dead body of the deceased in the bathroom of the accused. The materials collected from the scene of occurrence, namely the dress of the deceased as well as the accused were subjected to scientific examination. The blood collected from the cot and the floor of the room beneath the cot were also sent for scientific examination. The clothes of the deceased and the specimen collected from the vagina contained sperm which was analysed by DNA sampling and was identified as that of the accused. From the aforesaid evidence, it is clear that the crime was committed inside the house of the accused and later the body was dumped in the bathroom. The scientific evidence available in the case especially the identification of sperm in the dress of the deceased is clear indication of the fact that the accused had committed the crime. The crime was committed in

¶57

DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:10:-

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the bed room of the accused. Later her body was taken to the bath room. Learned counsel for the appellant submits that even from the evidence of PW2, it was evident that he had verified the bath room, but he did not find out anything and later the dead body was seen in the bath room when the accused was nowhere in the picture. It is therefore contended that someone else had committed the crime. But, from the evidence of PW2, it is clear that he had a suspicion against the accused and he had informed the said fact to PW8 and others. Accused told him that he did not have the key of his house and he went away stating that he would come back after collecting the key. Probably at that time, the dead body was very much inside the house. The accused had seen PW2 checking the bathroom. Therefore, when PW2 left the place, the accused had entered the house, took the dead body along with some clothes and the same was put in the bathroom, probably he was attempting to hide the dead body in the septic tank which fact is also evident from the evidence of PW2 that the slab of the septic tank was slightly removed. Therefore, the involvement of another person in the crime as contended by learned counsel for appellant can be completely ruled out. When

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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the evidence is overwhelming and it points out only to the commission of crime by the accused, his complicity in the crime is very well proved. There is no material to take a different view.

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Therefore, Crl.Appeal No.1452/13 does not deserve any merit and is liable to be dismissed.

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The next question is whether in the Death Sentence Reference (DSR), death sentence is to be confirmed or not. The principle of law in this regard is well settled in the following judgments.

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A three Judge bench of the Apex Court in Machhi Singh v. State of Punjab [(1983) 3 SCC 470] held at paragraphs 32 to 38 as under:-

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“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the

¶67

DSR No.3/2013 & Crl.Appeal No.1452/2013

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protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of commission of murder

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33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

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(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

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(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

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II. Motive for commission of murder

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34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

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III. Anti-social or socially abhorrent nature of the crime

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35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

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(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

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IV. Magnitude of crime

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36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

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V. Personality of victim of murder

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37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

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38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:

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“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

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(ii) Before opting for the death penalty the

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

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(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

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(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

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In yet another judgment in Sushil Sharma v. State

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(NCT of Delhi) [(2014) 4 SCC 317], it was held that there can be no hard and fast rule which the Court can follow while considering whether an accused should be awarded death sentence or not.

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In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka [(2008) 13 SCC 767], a three Judge Bench of the Supreme Court, held that there is a good and

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of 14 years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order as the case may be. The Constitution Bench of the Supreme Court in Union of India v. Sriharan (2015 KHC 4778) held that life imprisonment in terms of Section 53 read with Section 45 IPC means the entirety of life of the prisoner unless it is curtailed by remissions validly granted under Section 432 Cr.P.C. or Article 72 or Article 161 of the Constitution of India. It was held that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and it can be put beyond the application of remission.

¶102

Further, in Dhananjoy Chatterjee alias dhana v. State of West Bengal [(1994) 2 SCC 220], the Apex Court while considering the sentence to be awarded in a matter relating to murder of a young girl aged 18 years by the security guard of the building, after having considered the observations in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] observed that the

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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¶105

crime rate, particularly violent crime against women, has made the criminal sentencing by the Courts a subject of concern. Taking into consideration the various relevant factors and to ensure that the crime does not go unpunished and the victim of crime as well as the society has a satisfaction that justice has been done to it, Judges must consider variety of factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances has also to be taken into consideration. It is further observed that the measure of punishment must depend upon the attrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. While doing so, the courts must not only keep in view the rights of the criminal, but also the rights of the victim of crime and the society at large. In that case, it was observed that a security guard whose sacred duty was to ensure the protection and the welfare of the inhabitants of the flat in the apartment have subjected the deceased who was the resident of

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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the flat to gratify his lust and had murdered her since she has filed a complaint against him which makes the crime even more heinous. It was observed that the most heinous type of barbaric rape and murder was committed on a helpless and defenceless school going girl of 18 years. It was held that it certainly makes the case a rarest of the rare case which calls for no punishment other than capital punishment and accordingly sentence of death imposed on the appellant for the offence u/s 302 IPC was confirmed.

¶109

In yet another judgment of the Apex Court in Surja Ram v. State of Rajasthan [(1996) 6 SCC 271], Apex Court found the death sentence justified since it was a case of multiple murder by which the accused had killed his real brother and their two minor sons and aunt while they were sleeping. He also attempted to murder his brother's wife and daughter. Further, in order to ensure death, he chose to cut the vital part of the body. Apex Court held that it is the rarest of rare case requiring death sentence.

¶110

In Shivaji @ Dadya Shankar Alhat v. State of Maharashtra (2009 KHC 4273), the Apex Court held that if the

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms foundation for conviction, the fact that the case rests on circumstantial evidence has no role to play while awarding death sentence. That was a case in which a minor girl of 9 years was raped and murdered. While considering the said case, the Apex Court relying upon the earlier judgments in Bachan Singh (supra) Machhi Singh (supra) and Devender Pal Singh v. State of NCT of Delhi [(2002) 5 SCC 234] held that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up. In fact in Devender Pal Singh (supra), the Apex Court had culled out the principle that when the collective conscience of the community is so shocked and the community will expect the holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards the desirability of retaining death penalty, the same can be awarded. Paragraph 58 of Devender Pal Singh (supra) reads as under:-

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DSR No.3/2013 & Crl.Appeal No.1452/2013

¶115

-:20:-

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“58. From Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:

¶117

The community may entertain such sentiment in the following circumstances:

¶118

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

¶119

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.

¶120

(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

¶121

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

¶122

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis

¶123

DSR No.3/2013 & Crl.Appeal No.1452/2013

¶124

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¶125

whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

¶126

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”

¶127

In that case it was held that award of death sentence was proper.

¶128

In Vasanta Sampath Dupare v. State of Maharashtra [(2015) 1 SCC 253], a 3 Judge bench of the Apex Court had occasion to consider an issue where a four year old girl was murdered and raped by a 47 year old man. After considering elaborately all the earlier judgments, it was held at paragraphs 57 to 62 as under:-

¶129

“57. Keeping in view the aforesaid authorities, we shall proceed to adumbrate what is the duty of the Court when the collective conscience is shocked because of the crime committed. When the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation at the manner in which the brutal crime is committed. We are absolutely conscious that Judges while imposing sentence, should never be swayed away by any kind of individual

¶130

DSR No.3/2013 & Crl.Appeal No.1452/2013

¶131

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¶132

philosophy and predilections. It should never have the flavour of Judge-centric attitude or perception. It has to satisfy the test laid down in various precedents relating to the rarest of the rare case. We are also required to pose two questions that have been stated in Machhi Singh case.

¶133

58. Presently, we shall proceed to dwell upon the manner in which the crime was committed. Materials on record clearly reveal that the appellant was well acquainted with the inhabitants of the locality and as is demonstrable he had access to the house of the father of the deceased and the children used to call him “uncle”. He had lured the deceased to go with him to have chocolates. It is 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 an insatiable and ravenous appetite. The injuries caused on the minor girl are likely to send a chill in the spine of the society and shiver in the marrows of human conscience. 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 is not a case where the accused had a momentary lapse. It is also not a case where the minor child had died because of profuse bleeding due to rape but because of the deliberate cruel assault by the appellant. After the savage act was over, the coolness of the appellant is evident, 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 gullibility and vulnerability

¶134

DSR No.3/2013 & Crl.Appeal No.1452/2013

¶135

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¶136

of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this nature, went with the uncle who extinguished her life-spark. The barbaric act of the appellant does not 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 is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.

¶137

59. In this context, we may fruitfully refer to a passage from Shyam Narain v. State (NCT of Delhi), wherein it has been observed as follows: (SCC p. 81, para 1)

¶138

“1. The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loathsome beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a ‘tsunami’ of shock in the mind of the collective, send a chill down the spine of the society, destroy the civilised stems of the milieu and comatose the marrows of sensitive polity.”

¶139

In the said case, while describing the rape on an eightyear-old girl, the Court observed: (Shyam Narain case, SCC p. 88, para 26)

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“26. … Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight-yearold girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be

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well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilised society. The age-old wise saying that ‘child is a gift of the providence’ enters into the realm of absurdity. The young girl, with efflux of time, would grow with a traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.”

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60. In the case at hand, as we find, not only was the rape committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in which it has been committed speaks about its uncommonness. The crime speaks of depravity, degradation and uncommonality. It is diabolical and barbaric. The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances.

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61. We are absolutely conscious that mitigating circumstances are to be taken into consideration. The learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid-fifties and there is possibility of his reformation. Be it noted, the appellant was aged about

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forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. The learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had a number of cases pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. 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 would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances.

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62. As we perceive, this case deserves to fall in the category of the rarest of rare cases. It is inconceivable from the perspective of the society that a married man aged about two scores and seven makes a four-year minor innocent girl child the prey of his lust and deliberately causes her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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-:26:-

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destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly so hold.”

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In Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1]

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while considering the question of awarding sentence in a matter relating to rape and murder, another 3 Judge Bench of the Apex Court after considering the question relating to death penalty placed reliance on judgment in Shankar Kisanrao Khade v. State of Maharashtra [(2013) 5 SCC 546] where, in cases of rape and murder, death sentence was confirmed by the Court. It was held at paragraphs 122 and 124 of Shankar Kisanrao Khade (supra) as under:

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“122. The principal reasons for confirming the death penalty in the above cases include:

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(1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan, Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Satish, Bantu, Ankush Maruti Shinde, B.A. Umesh, Mohd. Mannan and Rajendra Pralhadrao Wasnik);

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(2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the

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community (Dhananjoy Chatterjee, Jai Kumar, Ankush Maruti Shinde and Mohd. Mannan);

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(3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar, B.A. Umesh and Mohd. Mannan);

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(4) the victims were defenceless (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Ankush Maruti Shinde, Mohd. Mannan and Rajendra Pralhadrao Wasnik);

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(5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Ankush Maruti Shinde, B.A. Umesh and Mohd. Mannan) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu, B.A. Umesh and Rajendra Pralhadrao Wasnik).”

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“124. Bachan Singh is more than clear that the crime is important (cruel, diabolic, brutal, depraved and gruesome) but the criminal is also important and this, unfortunately has been overlooked in several cases in the past (as mentioned in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra) and even in some of the cases referred to above. It is this individualised sentencing that has made this Court wary, in the recent past, of imposing death penalty and instead substituting it for fixed term sentences exceeding 14 years (the term of 14 years or 20 years being erroneously equated with life imprisonment) or

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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awarding consecutive sentences. Some of these cases, which are not necessarily cases of rape and murder, are mentioned below.”

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Further, it was held in Mukesh (supra) at paragraphs

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498 to 508 as under:-

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“ 498. The question would be whether the present case could be one of the rarest of rare cases warranting death penalty. Before the Court proceed to make a choice whether to award death sentence or life imprisonment, the Court is to draw up a balance sheet of aggravating and mitigating circumstances attending to the commission of the offence and then strike a balance between those aggravating and mitigating circumstances. Two questions are to be asked and answered:

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(i) Is there something uncommon about the crimes which regard sentence of imprisonment for life inadequate?;

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(ii) Whether there is no alternative punishment suitable except death sentence?

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Where a crime is committed with extreme brutality and the collective conscience of the society is shocked, courts must award death penalty, irrespective of their personal opinion as regards desirability of death penalty. By not imposing a death sentence in such cases, the courts may do injustice to the society at large.

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499. We are here concerned with the award of an appropriate sentence in case of brutal gang rape and murder of a young lady, involving most gruesome and

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barbaric act of inserting iron rods in the private parts of the victim. The act was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them. The victim and her friend were picked up from the Munirka Bus-stand with the mala fide intent of ravishing and torturing her. The accused not only abducted the victim, but gang-raped her, committed unnatural offence by compelling her for oral sex, bit her lips, cheeks, breast and caused horrifying injuries to her private parts by inserting iron rod which ruptured the vaginal rectum, jejunum and rectum. The diabolical manner in which crime was committed leaves one startled as to the pervert mental state of the inflictor. On top of it, after having failed to kill her on the spot, by running the bus over her, the victim was thrown half-naked in the wintery night, with grievous injuries.

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500. If we look at the aggravating circumstances in the present case, following factors would emerge:

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(i) Diabolic nature of the crime and the manner of committing crime, as reflected in committing gang rape with the victim; forcing her to perform oral sex, injuries on the body of the deceased by way of bite marks; insertion of iron rod in her private parts and causing fatal injuries to her private parts and other internal injuries; pulling out her internal organs which caused sepsis and ultimately led to her death; throwing the victim and the complainant (PW 1) naked in the cold wintery night and

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trying to run the bus over them.

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(ii) The brazenness and coldness with which the acts were committed in the evening hours by picking up the deceased and the victim from a public space, reflects the threat to which the society would be posed to, in case the accused are not appropriately punished. More so, it reflects that there is no scope of reform.

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(iii) The horrific acts reflecting the inhuman extent to which the accused could go to satisfy their lust, being completely oblivious, not only to the norms of the society, but also to the norms of humanity.

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(iv) The acts committed so shook the conscience of the society.

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501. As noted earlier, on the aspect of sentencing, seeking reduction of death sentence to life imprisonment, three of the convicts/appellants, namely, A-3 Akshay, A- 4 Vinay and A-5 Pawan placed on record, through their individual affidavits dated 23-3-2017, following mitigating circumstances:

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(a) Family circumstances such as poverty and rural background,

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(b) Young age,

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(c) Current family situation including age of parents, illhealth of family members and their responsibilities towards their parents and other family members,

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(d) Absence of criminal antecedents,

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(e) Conduct in jail, and

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(f) Likelihood of reformation.

¶193

In his affidavit, accused Mukesh reiterated his innocence

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DSR No.3/2013 & Crl.Appeal No.1452/2013

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and only pleaded that he is falsely implicated in the case. 502 In Purushottam Dashrath Borate v. State of Maharashtra, this Court held that age of the accused or family background of the accused or lack of criminal antecedents cannot be said to be the mitigating circumstance. It cannot also be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons.

¶197

503. Society’s reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminaljustice system. As held in Om Prakash v. State of Haryana, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime.

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504. Bearing in mind the above principles governing the sentencing policy, I have considered all the aggravating and mitigating circumstances in the present case. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the crime. Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime. Crimes like the

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one before us cannot be looked with magnanimity. Factors like young age of the accused and poor background cannot be said to be mitigating circumstances. Likewise, post-crime remorse and postcrime good conduct of the accused, the statement of the accused as to their background and family circumstances, age, absence of criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of “the rarest of rare cases”. The circumstances stated by the accused in their affidavits are too slender to be treated as mitigating circumstances.

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505. In the present case, there is not even a hint of hesitation in my mind with respect to the aggravating circumstances outweighing the mitigating circumstances and I do not find any justification to convert the death sentence imposed by the courts below to “life imprisonment for the rest of the life”. The gruesome offences were committed with highest viciousness. Human lust was allowed to take such a demonic form. The accused may not be hardened criminals; but the cruel manner in which the gang rape was committed in the moving bus; iron rods were inserted in the private parts of the victim; and the coldness with which both the victims were thrown naked in cold wintery night of December, shocks the collective conscience of the society. The present case clearly comes within the category of “the rarest of rare cases” where the question of any other punishment is “unquestionably foreclosed”.

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If at all there is a case warranting award of death sentence, it is the present case. If the dreadfulness displayed by the accused in committing the gang rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the “rarest of rare category”, then one may wonder what else would fall in that category. On these reasonings recorded by me, I concur with the majority in affirming the death sentence awarded to the accused persons.

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506. The incident of gang rape on the night of 16-122012 in the capital sparked public protest not only in Delhi but nationwide. We live in a civilised society where law and order is supreme and the citizens enjoy inviolable fundamental human rights. But when the incident of gang rape like the present one surfaces, it causes ripples in the conscience of society and serious doubts are raised as to whether we really live in a civilised society and whether both men and women feel the same sense of liberty and freedom which they should have felt in the ordinary course of a civilised society, driven by Rule of Law. Certainly, whenever such grave violations of human dignity come to fore, an unknown sense of insecurity and helplessness grabs the entire society, women in particular, and the only succour people look for, is the State to take command of the situation and remedy it effectively.

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507. The statistics of the National Crime Records Bureau which I have indicated in the beginning of my judgment show that despite the progress made by women in

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education and in various fields and changes brought in ideas of women’s rights, respect for women is on the decline and crimes against women are on the increase. Offences against women are not a women’s issue alone but, human rights issue. Increased rate of crime against women is an area of concern for the law-makers and it points out an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. There are a number of legislations and numerous penal provisions to punish the offenders of violence against women. However, it becomes important to ensure that gender justice does not remain only on paper.

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508. We have a responsibility to set good values and guidance for posterity. In the words of great scholar, Swami Vivekananda, “the best thermometer to the progress of a nation is its treatment of its women”. Crime against women not only affects women’s self-esteem and dignity but also degrades the pace of societal development. I hope that this gruesome incident in the capital and death of this young woman will be an eyeopener for a mass movement “to end violence against women” and “respect for women and her dignity” and sensitising public at large on gender justice. Every individual, irrespective of his/her gender must be willing to assume the responsibility in fight for gender justice and also awaken public opinion on gender justice. Public at large, in particular men, are to be sensitised on gender justice. The battle for gender justice can be won

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only with strict implementation of legislative provisions, sensitisation of public, taking other proactive steps at all levels for combating violence against women and ensuring widespread attitudinal changes and comprehensive change in the existing mindset. We hope that this incident will pave the way for the same.”

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Keeping in mind the principles laid down by the Apex Court in the aforesaid cases, this is also a crime which is so brutal and shocking to the judicial mind as well as the community at large. All circumstances relating to the case are aggravating. A child aged 9 years goes to her friend's house to call her to accompany to the madrassa. She is taken into the house and becomes a prey to a male aged 45 years. She expected him to behave to her like a father. He smothered her, prevented her from crying, raped her and in the process committed murder. He kept the dead body under his cot. Thereafter it was taken and dumped in a bathroom with an intention to conceal it in the septic tank. There are no mitigating circumstances to take it outside the purview of rarest of rare case.

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