KAMTA TIWARIversusSTATE OF M.P.

                            KAMTA TIWARI                                       A
                                     v.
                             STATE OF M.P.

                           SEPTEMBER 4, 1996

          [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.]                              B

      Indian Penal Code, 1860 : Sections 302, 363, 376 and 201-Death
Sentence-Rarest of rare case-Kidnapping, Rape and murder of the minor
girl-Conviction based on circumstantial evidence-Held, in the facts and
circumstances death sentence awarded by Courts below is upheld.                C
      A minor girl, aged about 7 year, was raped and murdered by the
appellant, a neighbour who was close to the family of the deceased and her
dead body was thrown into a well.

       The Prosecution relied upon the circumstantial evidence, since there D
was no eye-witness. The defence of the appellant was that he had been
falsely implicated.

      Both the trial Court and the High Court, after discussing the
evidence of all the witnesses at length held that each of the circumstances
stood conclusively proved and that those circumstances unerringly pointed      E
to the guilt of the appellant. He was convicted for the offences of rape and
murder and sentenced to death.

      Hence this appeal.

      Dismissing the appeal, this court                                        F

       HELD : 1. The concurrent findings entered by the courts below are
unexceptionable. Both the Trial Court and the High Court detailed and
discussed at length the evidence of all the witnesses who were examined by
the prosecution to prove the above circumstances and held that each of
the above circumstances stood conclusively proved and that those cir- G
cumstances unerringly pointed to the guilt of the appellant. It is of course
true that the entire case is based on circumstantial evidence but the
tell-tale circumstances all of which stand firmly established are not com-
patible with any other reasonable hypothesis except that the appellant
kidnapped the deceased, committed rape on her, then strangulated her to H
                                    507
    508                   SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A   death and to cause disappearance of evidence of the murder threw her
    dead body in a well. The conviction of the appellant for the offences under
    Sections 363, 376, 302 and. 201 IPC is upheld. [512-E-G]

          2. The sentence of death should be maintained, as this Court has
    found aggravating circumstances aplenty. The evidence on record clearly
B   establishes that the appellant was close to the family of the deceased and
    the children used to call him Uncle. Obviously the closeness of the deceased
    with the appellant encouraged her to go to his shop, which was near the
    saloon where she had gone for a hair cut with her father and brother, and
    ask for some biscuits. The appellant readily responded to the request by
C   taking her to the nearby grocery shop and handing over a packet of biscuits
    apparently as a prelude to his sinister design which unfolded in her kid-
    napping, brutal rape and gruesome murder - as the numerous injuries on
    her person testify; and the finale was the dumping of her dead body in a
    well. When an innocent hapless girl of 7 years was sub-jected to s11ch
    barbaric treatment by a person who was in a position of trust his culpability
D   assumes the proportion of extreme depravity and arouses a sense of revul-
    sion in the mind of the common man. This is a 'rearest of rare' cases where
    the sentence of death is eminently desirable not only to deter others from
    committing such atrocious crimes but also to give emphatic expression to
    society's abhorence of such crimes. (513-F-H; 514-A-C]

E          Bachan Singh v. State of Punjab, AIR (1980) SC 898 and Machhi Singh
    v. State of Punjab, AIR (1983) SC 957, relied on.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    267of1996.
F
         From the Judgment and Order dated 5.2.96 of the Madhya Pradesh
    High Court in Crl.A. No. 1524 of 1995.

          Anil Kumar Gupta (AC.) for the Appellant.

G         Uma Nath Singh for the Respondent.

          The Judgment of the Court was delivered by

          M.K. MUKHERJEE, J. The appellant was tried for and convicted of
    offences punishable under Sections 363, 376, 302 and 201 l.P.C. by the
H   Additional Sessions Judge, Shahdol. For his conviction under Section 302
            KAMTA TIWARI v.STATE[M.KMUKHEIUEE,J.)                        509

I.P.C. he was sentenced to death and for the other convictions to different     A
terms of rigorous imprisonment. As the appeal preferred by him in the
High Court was dismissed, he has filed the instant appeal aft~r obtaining
special leave.

      2. Briefly stated the case of the prosecution is as follows :
                                                                                B
      (a) Parmeshwar Lal Sharma (PW 1) along with his wife and three
children used to reside as Bhutari Talia in the township of Budhar. Of the
three children, Pinky (the deceased) was the youngest and her age at the
time of her death was about seven years. That appellant who was also a
resident of the same locality used to occasionally visit the family of Par-
meshwar and his children used to address him as 'Tiwari Uncle'.
                                                                                c
      (b) On April 30, 1995 at or about 6 P.M. Parmeshwar had gone to a
hair cutting saloon in the local market along with his son Santosh (P.W. 4)
and daughter Pinky. After Santosh and Pinky had their hair cut they went
out of the saloon to play outside while Parmeshwar stayed ba°ck for his turn.   D
After sometime Pinky went to the television repairing shop of the appellant
which was by the side of the saloon. The appellant was then playing ludo
with Suresh Gupta (PW 8) in his shop. Pinky requested the appellant to
give her some toffees and biscuits whereupon he took her to the nearby
grocery shop of Budhsen Gupta (PW 3), purchased a packet of biscuits
                                                                                E
and gave it to her. Thereafter both of them left the shop of Budhsen.

      (c) After his hair-cut when Parmeshwar came out of the saloon and
enquired of his daughter, Santosh told him that Pinky had gone to the shop
of the appellant and that he had given biscuits to her. On getting that
information Parmeshwar along with Santosh went to the shop of the F
appellant but found it closed. They then went back to their house only to
find that Pinky had not returned. Parmeshwar then went to the house of
the appellant but he was not available there. Accompanied by his wife and
other two children Parmcshwar then went in search of Pinky and in course
of the search they met Hari Krishna Soni (PW 10) and Subhash Chander G
Soni (PW 2) at or about 10.30 P.M. on a cross road near the shop of the
appellant. As advised by them he sent back his wife and children home and
again went to the house of the appellant accompanied by them. While they
were waiting there they saw the appellant coming towards his house
completely drenched. He was then wearing only an underwear with some
clothes pressed under his armpit. When they enquired about Pinky he told H
    510                   SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A   them that after he had given the packet of biscuits to her she left. All three
    of them then went to Budhar Police Station at or about 1 A.M. and
    reported that Pinky was missing.

         (d) After recording the report in the Station diary book (Ext. P.15/C)
  H.C. Munna Prasad went in search of Pinky but could not trace her out.
B Howeyer, on the basis of the enquiry conducted by him Station House
  Office Shri V.D. Tripathi (PW 11) registered a case under Sections 363,
  364 and 366 IPC (Ex. P.16) and took up investigation. On the following
  day, i.e., May 2, 1995 in the afternoon the appellant was arrested by Shri
  Tripathi and then interrogated in presence of Hari Krishna and Din Dayal.
c On such interrogation the appellant disclosed that he had thrown the dead
  body of Pinky in a well and concealed her frock near a mahua tree. Shri
  Tripathi recorded the disclosure statement of the appellant (Ex. P.8) and
  then, led by the appellant and accompanied by the above two witnesses
  went to the well of one Ramjiyawan Lodhi and found the dead body of
D Pinky floating in the water. After Shri Tripathi took the photograph of the
  floating dead body (Ex. P.3) it was brought out of the well. He then
  prepared a recovery memo of the dead body (Ex. P.9) which was singed
  by the appellant as also the witnesses present there. Shri Tripathi held
  inquest thereupon, prepared a report in respect thereof (Ex. P.14), and
  then sent it for post-mortem examination. Pursuant to the statement made
E by the appellant, Shri Tripathi recovered a blood stained frock (Article A)
  and seized it under a seizure memo (Ex. P.10).

         (e) On the same day Dr. K.K. Gautam (PW 13) held autopsy on the
  dead body of Pinky and found a lacerated wound on the right side of the
p mouth, abrasions on both arms, contusion on the left knee, laceration on
  the labia majora with clotted blood, laceration on the posterior vaginal wall,
  hymen ruptured, labia majora and labia minors swollen and blood around
  the orifice of the vagina. Dr. Gautam also found three contusions on the
  left side of the neck below the level of the thyroid with abrasions all around,
  brain and its membrane congested, hyoid bone and thyroid cartilage frac-
G tured with haemorrhage on the tissues around the fractures, the fourth rib
  on both the side fractured and uterus deeply congested and swollen. He
  opined that the deceased was raped and that the cause of her death was
  asphyxia owing to throttling. According to him all the injuries were ante
  mortem in nature. Dr. Gautam prepared a slide from the vaginal discharge
H of the deceased and arranged to send it for chemical analysis by the
            KAMTA 11WARI v. STATE [M.K. MUKHERJEE,J.]                   511

Forensic Science Laboratory (F.S.L.) through the Investigation Officer.        A

      (t) On the following day (May 3, 1995) the appellant was sent to the
Primary Health Centre for his medical examination. Dr. B.N. Sharma (FW
7), who examined him found one abrasion on his right knee and another
on the glans penis but there was no smegma. In his opinion the appellant
was competent to commit se>aial intercourse and that the injury found on       B
the glans penis could have been caused while committing rape on the girl
of tender age. According to him the injury found on the knee of the
appellant could have been caused while committing sexual intercourse with
the victim lying on the bare floor of a room. Dr. Sharma prepared a slide
of semen of the appellant and along with his underwear sent the same for       C
chemical analysis through Const. Kamla Prasad. The frock which was
recovered in pursuance of the statement of the appellant and was identified
by Parmeshwar as that of Pinky was also sent for such examination. On
receipt of the reports of the F.S.L. and completion of investigation Shri
Tripathi submitted a charge-sheet against the appellant.
                                                                               D
     3. The appellant pleaded not guilty to the charges levelled against
him and his defence was that he had been falsely implicated.

      4. In the absence of any eye witness the prosecution relied upon the
following circumstances to establish the charges levelled against the appel-   E
!ant:

      (i) In the evening of April 30, 1995 the deceased went to the T.V.
repairing shop of the appellant when he was playing ludo with Suresh
Gupta (PW 8) and asked him to give him some biscuits;
                                                                               F
      (ii) Accompanied by the deceased the appellant went to the grocery
shop of Budhsen (PW 3), purchased a packet of biscuits and gave it to her;

      (iii) At or about 8.30 P.M. Purshottam Lal (PW 5) saw the appellant
along with a girl aged about 6/7 years going towards the bus stand;
                                                                               G
      (iv) Around mid night the appellant was found by Parmeshwar Lal.
(PW 1), Subhas Chander Soni (PW 2) and Hari Krishna Soni (PW 10)
returning to his house completely drenched (which indicated that he had
taken a bath) and wearing only an underwear with some clothes under his
armpit;                                                                 H
    512                  SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A         (v) Pursuant to the statement made by the appellant on May 2, 1995
    to Inspector V.D. Tripathi (PW 11) in the presence of Hari Krishna Soni
    (PW 10) and others, the dead body of Pinky was recovered from a well
    and her frock from a place which was not accessible to all;

          (vi) While conducting autopsy Dr. Gautam (PW 13) found a large
B number of injuries on the person of the deceased, nature of which indicated
    that she had been raped and strangulated to death;

          (vii) On examining the appellant on May 3, 1995 Dr. Sharma (PW 7)
    found some injuries on his person which were about 72 hours old and likely
c   to have been caused while having sexual intercourse with a girl of tender
    age; and

         (viii) Blood was found on the frock of the deceased and her vaginal
    smear and on the underwear of the appellant.

D         4. Both the trial Court and the High Court detailed and discussed at
    length the evidence of all the witnesses who were examined by the prosecu-
    tion to prove the above circumstances and held that each of the above
    circumstances stood conclusively proved and that those circumstances
    unerringly pointed to the guilt of th~ appellant.
E         5. We have also closely scrutinised the evidence and our such exer-
    cise persuades us to unhesitatingly hold that the concurrent findings
    entered by the learned Courts below are unexceptionable. It is unnecessary
    therefore for us to burden this judgment with a repetition of the details of
    the evidence. It is. of course true that the entire case is based on cir-
F   cumstantial evidence but the tell-tale circumstances all of which stand
    firmly established are not compatible with any other reasonable hypothesis
    except that the appellant kidnapped Pinky, committed rape on her, then
    strangulated her to death and to cause disappearance of evidence of the
    murder threw her dead body in a well. The convictions of the appellant for
G   the offences under Sections 363, 376, 302 and 201 IPC must, therefore, be
    upheld;

          6. That brings us to·. the question whether the sentence of death
    imposed upon the appellant by the trial Court for his conviction under 302
    IPC and confirmed by the High Court should be maintained or not. In
H   Bacha11 Si11gh v. State of P1111jab, AIR (1980) SC 898 this Court indicated,
            KAMTA TIWARI v. STATE [M.K MUKHERJEE,J.]                   513

while discussing the sentencing policy, the guidelines to be followed for A
imposing the extreme penalty of death. From the guidelines so indicated
this Court in its later judgment in Machhi Singh v. State of Punjab, AIR
(1983) SC 957 formulated the following propositions, which are to be
applied when the question of awarding death sentence arises :

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

        (ii) Before opting for the death penalty the circumstances of the
        offender also require to be taken into consideration along with the
        circumstances of the crime;                                           c
        (iii) Life imprisonment is the rule and death sentence is an excep-
        tion. In other words death sente~ce must be imposed only when
        life imprisonment appears to be an altogether inadequate punish-
        ment having regard to the relevant circumstances of the crime, and
        provided, and only provided, the option to impose sentence of D
        imprisonment or life cannot be conscientiously exercised having
        regard to the nature and circumstances of the crime and all the
        relevant circumstances;

        (iv) A balance sheet of aggravating and mitigating circumstances      E
        has to be drawn up and in doing so the mitigating circumstances
        has to be accorded full weightage and a just balance has to be
        struck between the aggravating and mitigating circumstances
        before the option is exf!rcised."

       7. Taking an overall view of all the facts and circumstances of the F
instant case in the light of the above propositions we are of the firm opinion
that the sente.nce of death should be maintained. In vain we have searched
for mitigating circumstances - but found aggravating circumstances aplenty.
The evidence on record clearly establishes that the appellant '\Vas close to
the family of Parmeshwar and the deceased and her siblings used to call
him 'Tiwari uncle'. Obviously her closeness with the appellant encouraged G
her to go to his shop, which was near the saloon where she had gone for
a haircut with her father and brother, and ask for some biscuits. The
appellant readily responded to the request by taking her to the nearby
grocery shop of Budhsen and handing over a packet of biscuits apparently
as a prelude to his sinister design which unfolded in her kidnapping, brutal H
    514                  .SUPREMECOURTREPORTS (1996)SUPP.5S.C.R.

A   rape and gruesome murder - as the numerous injuries on her person testify;
    and the finale was the dumping of her dead body in a well. When an
    innocent hapless girl of 7 years was subjected to such barbaric treatment
    by a person who was in a position of her trust his culpability assumes the
    proportion of extreme depravity and arouses a sense of revulsion in the
B   mind of the co=on man. In fine, ·the motivation of the perpetrator, the
    vulnerability of the victim, the enormity of the crime, the execution thereof
    persuade us to hold that thiis is a 'rarest of rare' cases where the sentence
    of death is eminently desirable not only to deter others from co=itting
    such atrocious crimes but also• to give emphatic expression to society's a
    abhorrence of such crime.
c         The appeal is therefore dismissed.

    K.H.N.S.                                                  Appeal dismissed.
                ,.