Supreme Court of India
MANOHARANversusSTATE BY INSPECTOR OF POLICE, VARIETY HALL POLICE STATION, COIMBATORE
- Citation
- 2019 INSC 851
- Decided
- 1 August 2019
- Disposal
- Disposed off
Holding
The Supreme Court affirmed that the prosecution proved the offences beyond reasonable doubt and, applying the "rarest of rare" test, upheld the death sentence for the appellant.
Summary
Manoharan was convicted for kidnapping, gang‑rape of a 10‑year‑old girl and the murder of the girl and her 7‑year‑old brother, who were thrown into a canal after a failed poisoning attempt. The prosecution proved the offences beyond reasonable doubt through extensive witness testimony, forensic DNA evidence linking Manoharan’s pubic hair to the victim’s panties, and a voluntary confession recorded under Section 164 CrPC, despite a later partial retraction. The trial court sentenced him to death for murder and life imprisonment for rape; the High Court affirmed the death sentence. On appeal, the Supreme Court applied the "rarest of rare" doctrine, held that the aggravating circumstances outweighed the mitigating factors, and upheld the death penalty, while a dissenting judge suggested life imprisonment without remission as an alternative.
Issues considered
- The admissibility and evidentiary value of the confession recorded under Section 164 CrPC, especially after partial retraction.
- Whether the DNA evidence of pubic hair on the victim’s panties is sufficient to prove rape.
- The propriety of upholding convictions under Sections 120‑B and 364‑A of the IPC.
- Whether the death penalty is warranted under the "rarest of rare" test (Bachan Singh, Machhi Singh).
- The weight to be given to mitigating factors such as the appellant’s age, poverty and first‑time offence.
- The appropriateness of life imprisonment without remission (Sections 432, 433 CrPC) as an alternative to death.
Legislation cited
- Code of Criminal Procedure, 1973s. 164, s. 235(2), s. 313, s. 354(3), s. 432, s. 433
- Indian Penal Code, 1860s. 120-B, s. 201, s. 302, s. 34, s. 364-A, s. 376
- Protection of Children from Sexual Offences Act, 2012 (as amended 2019)s. 5(m), s. 6
Subjects
murderrapechild sexual abusedeath penaltyrarest of rare doctrineconfessionDNA evidencecircumstantial evidencesentencingmitigating circumstancesaggravating circumstancesIPCCrPCPOCSO Act
Judgment
[2019] 18 S.C.R. 1007 1007
MANOHARAN A
v.
STATE BY INSPECTOR OF POLICE,
VARIETY HALL POLICE STATION, COIMBATORE
(Criminal Appeal Nos. 1174-1175 of 2019) B
AUGUST 01, 2019
[R. F. NARIMAN, SURYA KANT AND
SANJIV KHANNA, JJ.]
Penal Code, 1860 – ss.302, 376 and 201 – Murder – Rape –
C
Co-accused (now deceased) using borrowed school van, picked up
a 10-year old girl and her 7-year old brother who were waiting to
go to school – He thereafter picked up his friend (accused-
appellant) from his house – Girl child was raped and sodomised –
Both children were administered poison (cow dung powder) mixed
in milk – However, they spat out the substance and only ingested a D
small portion – Since poisoning did not work, the children were
thrown into a nearby canal, causing their death by drowning – Co-
accused was shot dead by the police in an encounter – Appellant
recorded confession before Magistrate u/s.164 CrPC which was
partially retracted subsequently – Prosecution examined forty-nine
E
witnesses including persons who witnessed abduction, purchase of
milk and cow dung powder and those who saw children in custody
of the accused persons at various places – Medical and forensic
evidence proved drowning and rape as well as injuries on appellant’s
body – Trial Court held appellant guilty u/ss. 120-A, 364-A, 376,
302, 302 r/w 34 and 201 – High Court set aside appellant’s F
conviction u/ss.120-B and 364-A, but confirmed conviction u/ss.376,
302, s.302 r/w ss.34 and 201 – On appeal, conviction affirmed by
Supreme Court – Held (per R.F. Nariman, J. [for himself and Surya
Kant, J.]): The fact that appellant brutally raped the 10 year old
girl was corroborated not only by his confessional statement but
G
also by DNA test which found appellant’s pubic hair on panty of
the girl – Appellant admitted that he purchased cow dung powder
(poison) and administered to the children – Thereafter, he and the
other accused threw the children in the canal – The entire chain of
events was made out and prosecution proved its case beyond
H
1007
1008 SUPREME COURT REPORTS [2019] 18 S.C.R.
A reasonable doubt – Courts below rightly convicted the appellant of
rape and murder – Held (per Sanjiv Khanna, J.): Prosecution case
that hair belonging to the appellant was found in the van is accepted,
but forensic report that this was the pubic hair of appellant is
debatable – Except the aforesaid, the prosecution proved the case
beyond doubt – Confessional statement of appellant u/s. 164 Cr.P.C.
B
was rightly accepted – Conviction of appellant u/ss. 302, 376 and
201 IPC upheld and maintained.
Sentence / Sentencing – Death penalty – Murder – Rape –
Appellant and a co-accused (now deceased) – Confession of
appellant recorded before Magistrate u/s.164 CrPC which was
C partially retracted subsequently – Trial Court held appellant guilty
u/ss. 120-A, 364-A, 376, 302, 302 r/w 34 IPC and 201 and awarded
life sentence u/s.376 IPC and death sentence u/s.302 IPC – High
Court set aside appellant’s conviction u/ss.120-B and 364-A, but
confirmed conviction and sentences u/ss.376, 302, s.302 r/w ss.34
D and 201 – Death sentence also confirmed by High Court – On appeal
before Supreme Court, conviction unanimously affirmed, however,
death sentence upheld by majority – Held (per R.F. Nariman, J.
[for himself and Surya Kant, J.]) (Majority judgment): A young 10
year old girl was first horribly gangraped after which she and her
brother aged 7 years were done away with while they were conscious
E by throwing them into a canal which caused their death by drowning
– Crime committed was cold blooded and in the most heinous fashion
possible – No remorse shown by Appellant at all – That Appellant
made a confessional statement would not, on facts, mean that he
showed remorse for committing such a heinous crime – He did not
F stand by this confessional statement, but falsely retracted only parts
of the statement which implicated him of both the rape of the young
girl and the murder of both her and her little brother – Consequently,
death sentence confirmed – Held (per Sanjiv Khanna, J.) (Minority
judgment): Appellant’s partial retraction of confession was rightly
disbelieved – However, retraction by itself should not be treated as
G absence of remorse or repentance – A thought of doubt and attempt
to retract had surfaced on account of belief that the sense of remorse,
repentance and forgiveness would not be appreciated and given
due regard, cannot be ruled out – Benefit in this regard must go to
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MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1009
HALL POLICE STATION, COIMBATORE
appellant – Other mitigating factors in favour of appellant are his A
young age, he was 23 years of age at the time of occurrence and he
belonged to a poor family – He has aged parents and is a first-time
offender – Further, appellant was not initially involved and was
not the mastermind – On balancing aggravating and mitigating
circumstances, present case does not fall under category of ‘rarest
B
of rare’ case – Not a case where appellant should be given death
penalty – It would fall within special category of cases, where
appellant should be directed to suffer sentence for life i.e. till his
natural death, without remission / commutation u/ss.432 and 433
CrPC – Code of Criminal Procedure, 1973 – ss.432 and 433.
Sentence / Sentencing – Life imprisonment, without right to C
remission – Held (per Sanjiv Khanna, J.): To award death penalty,
the Court must balance out aggravating circumstances by giving
weightage to mitigating circumstances and decide whether
punishment of life imprisonment is foreclosed – Then and then alone,
the case would fall under ‘rarest of rare’ category – Where life D
imprisonment is considered to be disproportionate or inadequate,
then the Court may direct sentence for life imprisonment, without
any right to remission i.e. imprisonment for entire course of life
with no recourse to remission, subject to the power that may be
exercised u/Arts. 72 and 161 of the Constitution – Constitution of
India, 1950 – Arts. 72 and 161. E
Words & Phrases – Punishment by death – Expression ‘rarest
of rare’ – Meaning – Held (per Sanjiv Khanna, J.): Expression
‘rarest of rare’ literally means rarest even in the rare, i.e. a rarest
case of an extreme nature – The expression and the choice of words,
means that punishment by death is an extremely narrow and confined F
rare exception – The normal, if not an unexceptional rule, is
punishment for life, which rule can be trimmed and upended only
when the award of sentence for life is unquestionably foreclosed –
Capital punishment is awarded and invoked only if the facts and
material produced by the prosecution disdainfully and fully establish G
that the option of imprisonment for life will not suffice and is wholly
disproportionate and therefore the case belongs to the ‘rarest of
rare’ category.
H
1010 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Unanimously affirming conviction and by majority upholding
the death sentence, the Court
HELD: [per R.F. Nariman, J. (for himself and Surya Kant,
J.)] (Majority judgment):
1. Having gone through the exhaustive analysis of the High
B Court, it is felt that no reasonable ground has been made out by
accused-Appellant to assail the same and, therefore, the findings
that the Appellant had subjected the girl to sexual assault are
confirmed. [Para 9][1039-E]
2. The Appellant argued that the Magistrate should have
C refused to record the confessional statement made on 20.11.2010
given the fact that Appellant had been beaten by the police. The
High Court has dealt with this aspect of the case by stating that
the Magistrate asked the Appellant repeatedly as to whether the
statement that is being given by him is voluntary or because of
D torture or beatings. The Appellant repeatedly stated that the
statement being given was voluntary. Further, the High Court
has also adverted in its judgment, to the fact that police custody
ended after the first 15 days of arrest that is on 14.11.2010. The
accused was produced before the Judicial Magistrate only on
19.11.2010 after which statement was recorded on 20.11.2010. It
E was clear therefore that on this date there was no possibility of
handing back the Appellant to police custody. Further, the
retraction that was made from the confessional statement was
made one year and nine months after it was made and the
retraction statement confirms the original confessional statement
F in every detail except that the Appellant retracts the part played
by him in the rape and murder of the ten year old girl and the girl
& boy respectively. For all these reasons, therefore the
arguments of the Appellant in this behalf are rejected. [Para
10][1039-F-H; 1040-A-B]
G 3. The Appellant argued that PW.24 who is a very material
witness as to the last seen theory cannot possibly be believed.
Even if the argument is accepted, it must not be forgetten that
for the last seen theory a number of other persons were relied
upon by the High Court. PW.20, PW.25 and PW.23 all saw the
two accused together with the children at different times on
H 29.10.2010. Indeed, even if one were to read the confessional
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1011
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statement of the Appellant together with the retraction thereof, A
the fact that he purchased milk at 1.00 p.m. from PW.23 is clearly
made out and the fact that the co-accused Mohanakrishnan went
to meet the tailor, was also admitted by him in both the original
confessional statement as well as the retraction. It is clear
therefore that the evidence of PW.20 and 23 are corroborated by
B
the confessional statement and the retraction made by the
Appellant and therefore the factum of the two accused being with
the two children in the vehicle is clearly made out and thus the
High Court’s conclusion that the last seen theory can be relied
upon cannot possibly be assailed. [Para 11][1040-C-F]
4. The Appellant argued that having raped a girl in the C
morning hours, it is highly improbable that the victim would be
paraded around and taken to so many places including the shop
selling milk and cow dung powder, and that the entire story is so
inherently improbable that it should be rejected. This kind of
argument flies in the face of the confessional statement made D
even when read with the retraction thereof. All the facts as to the
co-accused Mohanakrishnan abducting the children, raping the
girl and murdering the children are contained in both the
statement as well as the retraction of the Appellant. It is only in
the retraction that the Appellant seeks to exculpate himself
completely from rape and murder, which, as has rightly been held E
by the High Court, cannot be given any credence. This is also for
the added reason that once it is accepted that the DNA sample
from the pubic hairs of the Appellant are found in the panty of the
dead girl, rape gets established beyond reasonable doubt.
[Para 12][1040-G-H; 1041-A-B] F
5. The argument of the Appellant that no semen or blood
was found on the body of the dead girl pales into insignificance in
view of the DNA evidence. In any case, the body of the dead girl
was found in a canal, which had fast flowing water in it, several
kilometers away, after one day of the commission of the crime. It G
is obvious that with this passage of time whatever semen and
blood that may have been on the dead body when the girl was
thrown into the canal has been effaced by the fast-flowing water
in which the body was immersed for a day after it was recovered.
[Para 13][1041-C]
H
1012 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 6. The argument of appellant that the allegation of tying up
of the children has no evidence to support it, is also not correct
inasmuch as in both the confessional statement as well as the
retraction thereof it is clear that co-accused Mohanakrishnan at
least tied the girl with a rope and then raped her. [Para 14]
[1041-D]
B
7. The Appellant argued that the panty was found later in
the car thereby rendering its being found in the car suspect, and
that the panty which is stated to be torn was never so stated in
the earlier statements made to the police. However, what is clear
from the forensic examination is that the panty was found in the
C car only after the car was searched at 2.00 a.m. on the night after
the rape and the murder as is clear from a reading of exhibit P.5
marked on the side of the prosecution. [Para 15][1041-E-F]
8. The Appellant argued that it is wholly improbable that
the lunch bag of the murdered boy would be taken home by the
D accused Appellant and would be found by the police at his house
two days thereafter. Obviously therefore the aforesaid bag has
been planted by the police. Even if this is so, this does not take
the Appellant anywhere. [Para 16][1041-G]
9. From the facts is that it is clear that the children were
E initially abducted by the other accused after which the appellant
joined them. The fact that the Appellant brutally raped the 10
year old girl is corroborated not only by his confessional statement
but also by the DNA test which found the Appellant’s pubic hair
on the panty of the girl. It is clear that once this heinous act was
F committed, the next important step would be for both the accused
to do away with the children so that they would not be able to
give evidence as to the kidnapping and rape committed on the
girl. Towards this end, it is admitted that the Appellant purchased
“cow dung” powder, that is poison, and milk, and stated in his
confessional statement that the two were then mixed and
G administered to both children by both the accused. Since the
poison did not work, the only other way of doing away with the
children would be to find some other method, and the method
found by the two accused was to take the children to the canal in
question and throw them into the canal so that they would be
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MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1013
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dead by drowning. The entire chain of events has been made out A
and despite this being a case of circumstantial evidence, the
prosecution has clearly proved its case beyond reasonable doubt.
The courts below are right in convicting the Appellant of rape
and murder. [Para 16][1041-G-H; 1042-A-D]
10. The question that now arises is whether the death B
sentence should be confirmed by this Court. In Khushwinder
Singh case, this Court affirmed the death sentence of the accused
in which the accused had killed six innocent persons, out of which
two were minors, by kidnapping three persons, drugging them
with sleeping tablets, and then pushing them into a canal.
Thereafter, three other members of the same family were done C
away with. The present case consists of a crime even more
shocking than that in Khushwinder’s case, in as much as a young
10 year old girl has first been horribly gangraped after which she
and her brother aged 7 years were done away with while they
were conscious by throwing them into a canal which caused their D
death by drowning. [Paras 17, 22][1042-D; 1052-A-B; 1053-B]
11. Just as this judgment is being dictated, it is noticed
that a significant amendment has been made to The Protection of
Children from Sexual Offences Act, 2012, vide “The Protection
of Children from Sexual Offences (Amendment) Bill, 2019” which E
was passed on 24.07.2019 by the Rajya Sabha. It is noticed that
post the amendment, the minimum sentence for aggravated
penetrative sexual assault has gone up from 10 years to 20 years,
and imprisonment for life has now been expressly stated to be
imprisonment for the remainder of the natural life of the person.
More significantly, the death penalty has also been introduced. F
On the facts of the present case there is no doubt that aggravated
penetrative sexual assault was committed on the 10 year old girl
by more than one person. The 10 year old girl child (who was
below 12 years of age) would fall within Section 5 (m) of the
POCSO Act. There can be no doubt that this judgment is in G
keeping with the legislature’s realisation that such crimes are on
the rise and must be dealt with severely. [Paras 23 and 24]
[1053-C-D; 1054-D-F]
12. In the circumstances, there is no doubt that the trial
court and High Court have correctly applied and balanced H
1014 SUPREME COURT REPORTS [2019] 18 S.C.R.
A aggravating circumstances with mitigating circumstances to find
that the crime committed was cold blooded and involves the rape
of a minor girl and murder of two children in the most heinous
fashion possible. No remorse has been shown by the Appellant
at all and given the nature of the crime as stated in of the High
Court’s judgment it is unlikely that the Appellant, if set free, would
B
not be capable of committing such a crime yet again. The fact
that the Appellant made a confessional statement would not, on
the facts of this case, mean that he showed remorse for committing
such a heinous crime. He did not stand by this confessional
statement, but falsely retracted only those parts of the statement
C which implicated him of both the rape of the young girl and the
murder of both her and her little brother. Consequently, the death
sentence is confirmed. [Para 25][1055-F-H; 1056-A-B]
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413; Mukesh v. State (NCT of Delhi)
D (2017) 6 SCC 1 : [2017] 6 SCR 1; Khushwinder Singh
v. State of Punjab (2019) 4 SCC 415 : [2019] 3 SCR 446
– relied on.
Dhananjoy Chatterjee v. State of West Bengal (1994) 2
SCC 220 : [1994] 1 SCR 37; Laxman Naik v. State of
E Orissa (1994) 3 SCC 381 : [1994] 1 SCR 37; Bantu v.
State of U.P. (2008) 11 SCC 113 : [ 2008] 11 SCR 184;
Rajendra Pralhadrao Wasnik v. State of Maharashtra
(2012) 4 SCC 37 : [2012] 2 SCR 225; Akhtar v. State
of U.P. (1999) 6 SCC 60; State of Maharashtra v. Bharat
Fakira Dhiwar (2002) 1 SCC 622 : [2001] 5 Suppl.
F SCR 12 and Vasanta Sampat Dupare v. State of
Maharashtra (2017) 6 SCC 631 : [2017] 3 SCR 850 –
referred to.
HELD : [per Sanjiv Khanna, J. (concurring on conviction
but dissenting on the quantum of sentence)] (Minority judgment):
G
1. The conviction of the appellant under Sections 302,
376(2)(f) and (g) and 201 IPC and the sentences awarded under
Sections 376(2)(f) and (g) and 201 IPC are upheld and maintained.
However, on balancing aggravating and mitigating circumstances,
the present case does not fall under the category of ‘rarest of
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MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1015
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rare’ case i.e. there is no alternative but to impose death sentence. A
This is not a case wherein the appellant should be given death
penalty. It would fall within the special category of cases, where
the appellant should be directed to suffer sentence for life i.e. till
his natural death, without remission/commutation under Sections
432 and 433 Cr.P.C. [Paras 40][1077-E-F]
B
2. In Bachan Singh v. State of Punjab, this Court, while
accepting validity of the death penalty, had settled as a ratio that
imprisonment for life is the normal and preferred punishment for
the offences under Section 302 of the IPC, and that death penalty,
which deprives the accused of his life, is an exception to be
imposed only in the ‘rarest of rare’ cases, when the first option of C
imposing imprisonment for life is foreclosed and for which special
reasons must be recorded. Recognising that the legislative policy
underlying the provisions of Sections 302 IPC and 354(3) CrPC
requires exercise of the court’s discretion on the award of
punishment, Bachan Singh case had laid down that a balance sheet D
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 for the judicial
discretion to be exercised. The expression ‘special reasons’ in
the context, it was observed, means ‘exceptional reasons’ founded E
on exceptionally grave circumstances of the particular case
relating to the crime and the criminal. Bachan Singh case
highlights the aspect of probability of reform and rehabilitation,
and also probability that the accused would not commit criminal
acts as to constitute a continuing threat to society and that the F
State must by evidence adduced establish that such conditions
are not satisfied. [Paras 2, 3 and 4][1056-F-H; 1057-A-B, G-H]
3. In Machhi Singh v. State of Punjab, this Court elucidated
that from the tussle between the protagonists of “an eye for an
eye” philosophy who demand “death for death” on one hand and G
the “humanists” who press for “death in no case”, a synthesis
had emerged for imposing a death sentence only in the ‘rarest of
rare’ cases. Machhi Singh case analysing the principles in Bachan
Singh case observed that they postulate a twin question test which
H
1016 SUPREME COURT REPORTS [2019] 18 S.C.R.
A is required to be answered by the Court when they exercise
discretion to determine the ‘rarest of rare’ cases. The questions
that must be put and answered are: (a) Whether there was
something uncommon about the crime, which renders the
sentence of imprisonment for life inadequate and calls for death
sentence? (b) Whether there were other circumstances
B
concerning the crime, i.e. aggravating circumstances, because
of which there is no alternative but to impose the death sentence
after having accorded maximum weightage to all mitigating
circumstances which speak in favour of the offender? The
circumstances elucidated in Machhi Singh case, if carefully
C analysed, relate to the first question to be posed and answered.
But this is not the only question that the court must answer, for
the second question has to be also answered in order to direct or
uphold the death penalty. Second question can be answered with
reference to the grounds quoted from Bachan Singh case. These
grounds relating to mitigating factors are however not exhaustive.
D
[Paras 5 and 7][1058-A-B; 1059-B-E]
4. In Rajesh Kumar v. State through the Government of
NCT of Delhi, this Court had traced out case laws for evaluation
of the sentencing structure with reference to the aggravating and
mitigating circumstances in the Indian context. Rajesh Kumar
E case clearly rejects the theory that while inflicting the punishment
of death penalty, only the nature and gravity of the crime to the
exclusion of the characteristics of the criminal are germane for
consideration and imposition of an appropriate punishment. Thus,
while awarding the sentence, the Court should not confine its
F consideration “principally or merely” to the circumstances of a
particular crime, but also give due consideration and regard to
the circumstances and attributes of the criminal. [Para 8]
[1059-F; 1060-B-C]
5. In Santosh Kumar Satishbhushan Bariyar v. State of
G Maharashtra, it was observed that the ‘rarest of rare’ dictum
breathes life into the ‘special reasons’ which are mandated to be
recorded under Section 354(3) of the Cr.P.C. In this regard,
referring to Bachan Singh case, the Court had emphasised the
aforesaid principles rest on a real and abiding concern for the
dignity of human life which postulates resistance to the taking
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MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1017
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away of a life through the instrumentality of laws, and that death A
ought not to be awarded save in the ‘rarest of rare’ cases and
when the alternative option is incontrovertibly foreclosed. The
brutality of the manner in which the crime was committed may
not be the sole ground for judging whether the case is one of the
‘rarest of rare’. [Paras 9 and 12] [1061-C-D; 1062-G; 1063-A]
B
6. The expression ‘rarest of rare’ literally means rarest even
in the rare, i.e. a rarest case of an extreme nature. The expression
and the choice of words, means that punishment by death is an
extremely narrow and confined rare exception. The normal, if
not an unexceptional rule, is punishment for life, which rule can
be trimmed and upended only when the award of sentence for life C
is unquestionably foreclosed. Thus, capital punishment is awarded
and invoked only if the facts and material produced by the
prosecution disdainfully and fully establish that the option of
imprisonment for life will not suffice and is wholly disproportionate
and therefore the case belongs to the ‘rarest of rare’ category. D
[Para 10][1061-E-F]
7. In V. Sriharan case, the majority judgment had observed
that the situation on the lack of uniformity and inconsistency in
awarding death sentence and its ill effects is of serious concern.
Thereafter it was noted that this Court in several cases had E
imposed imprisonment till life or for a fixed term exceeding 14
years without remission as a middle path where life sentence
means a person’s life span in incarceration, rather than get nudged
into endorsing the death penalty. The Court would not violate
the law by giving the aforesaid direction by imposing life
imprisonment with the stipulation by restraint or limit to grant of F
remission by way of statutory executive action. Thus, the majority
judgment approved the ratio in Swamy Shraddananda (2) case
that there can be special category of sentence where the Court
could specify that the life sentence would exceed 14 years and
would be beyond application for remission. The majority, however G
clarified, that such directions in the judgment would not in any
manner restrict the right to claim remission, commutation,
clemency etc. as provided under Article 72 and Article 161 of the
Constitution. [Paras 15 and 16][1067-C-F]
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1018 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 8. A three judges bench in their decision in M.D. Mannan
@ Abdul Mannan v. State of Bihar, commuted the death sentence
with the direction that considering the heinous nature of the crime
committed, the petitioner therein must undergo imprisonment
for life, that is till his natural death and no remission of sentence
would be granted. In Santosh Kumar case, reference was made
B
to the 48thReport of the Law Commission and the importance of
information relating to the characteristics and socio-economic
background of the offender which should be collected and brought
to the notice of the Court. In Mulla v. State of Uttar Pradesh, it
was held that the socio-economic factors relating to the crime
C and the criminal should be taken into consideration. The socio-
economic characteristics of the criminal assume relevancy in light
of administration of criminal justice and particularly of capital
punishment, with regard to which the Law Commission, in its
262nd Report, had made observations. [Paras 17, 18 and 19][1067-
G-H; 1068-C-D; 1069-B]
D
9. In the present case, the offence or the crime was brutal,
ruthless and cruel as two innocent children aged 7 to 10 lost
their lives, and there is substantial medical and other evidence
to show that the young girl was mercilessly sexually abused and
raped by the appellant and the other accused (since deceased).
E Thereafter the children were administered poison and thrown
into a canal to die. The pain and trauma suffered by the small
children who were not at fault and the agony of the parents and
grandmother are immense, incalculable and would remain forever.
The punishment must be severe. Yet to award death penalty the
F Court must balance out the aggravating circumstances by giving
weightage to the mitigating circumstances and decide whether
punishment of life imprisonment is foreclosed. Then and then
alone the case would fall under the ‘rarest of rare’ category. While
doing so, majority dictum in V. Sriharan case should be accounted
that where life imprisonment is considered to be disproportionate
G or inadequate, then the Court may direct sentence for life
imprisonment, without any right to remission i.e. imprisonment
for the entire course of life with no recourse to remission, subject
to the power that may be exercised under Article 72 and 161 of
the Constitution. [Para 20][1069-E-H; 1070-A]
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10. The prosecution case that hair belonging to Appellant A
was found in the van is acceptable but the forensic report that
this was the pubic hair of the Appellant would be debatable. It
would be also debatable whether the hair was found stuck/attached
on the underwear (M.O. -1) which belonged to the deceased girl.
Inspite of the aforesaid reservation, there is no hesitation in
B
accepting that the prosecution case has been proved beyond doubt
and for this confessional statement made by appellant before the
Magistrate under Section 164 CrPC is also relied upon. The
contention that the confession should not be relied upon has been
rightly rejected. In the avowal recorded on 20th November 2010,
twenty days after the arrest of the appellant on 30th October C
2010, the appellant was candid and forthcoming in accepting his
friendship with the other accused (since deceased), and that the
girl was subjected to sexual assault and was raped by the other
accused (since deceased) on the rear seat of the van by tying her
hands. [Para 29][1073-C-E]
D
11. In the present case, confession was not made at the
behest of the police/ authorities or on inducement by the
prosecution to enable the prosecution to prove the case against
the appellant. In this case, it could be argued that the appellant
was driven by the hope that an earlier admission of guilt may lead
to a lighter sentence and that was one of the factors that had E
prompted him to make the confession. However, to confess to
such acts of crime and misdeeds before all and everyone, including
the Magistrate could only mean that the appellant had felt shame,
remorse and alienation from the society. It is probable, among
other reasons, that the appellant had confessed his guilt in order F
to seek forgiveness. Otherwise, there is no cause for him to
appear before the Magistrate and on oath, disclose in detail and
accept his direct involvement in the crime. In Bishnu Prasad Sinha
case, this Court referred to the confession made by the appellant
before the Judicial Magistrate and also before Sessions Judge in
a statement under Section 313 Cr.P.C. and observed that this G
would show repentance. [Paras 33 and 35][1074-F-G; 1075-C-E]
12. Appellant’s partial retraction has been rightly disbelieved
for good reasons, including the statement of the appellant under
H
1020 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Section 313 Cr.P.C. in the Court accepting and admitting that his
confession was recorded by the Magistrate. The retraction by
itself should not be treated as absence of remorse or repentance,
albeit an afterthought or on advice propelled by fear that the
appellant in view of his admission may face the gallows, and that
the earlier confession made seeking forgiveness would be the
B
cause of his death. A thought of doubt and attempt to retract had
surfaced on account of belief that the sense of remorse,
repentance and forgiveness would not be appreciated and given
due regard, cannot be ruled out. Benefit in this regard must go
to the appellant. [Para 38][1076-G-H; 1077-A]
C 13. The other mitigating factors in favour of the appellant
are his young age, he was 23 years of age at the time of occurrence
and he belongs to a poor family. He has aged parents and is a
first-time offender as recorded in the judgment/order of the trial
court. Further, the appellant was not initially involved in the
D abduction and kidnapping of the children. He was not the
mastermind. The other accused (since deceased) had thought,
conceived and had single-handedly executed the plan to abduct
the children. Appellant did join him thereafter. The other accused
(since deceased) took over and he sexually assaulted and raped
the small girl, while the appellant kept quiet. Later the appellant
E too sexually assaulted and committed rape. Thereupon, poison
was administered to the children before throwing them into the
canal. The offence committed was heinous and deplorable. [Para
39][1077-B-D]
Union of India v. V. Sriharan alias Murugan and Others
F (2016) 7 SCC 191 – followed.
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413; Rajesh Kumar v. State through the
Government of NCT of Delhi (2011) 13 SCC 706;
G Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90;
Mulla v. State of Uttar Pradesh (2010) 3 SCC 508 :
[2010] 2 SCR 633; Gurdeep Singh alias Deep v. State
(Delhi Admn.) (2000) 1 SCC 498 : [1999] 2 Suppl.
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1021
HALL POLICE STATION, COIMBATORE
SCR 693; M. D. Mannan @ Abdul Mannan v. S t a t e A
of Bihar [2019] 8 SCR 266 : 2019 AIR 2934 – relied
on.
Vadivelu Thevar and Anr. v. State of Madras AIR 1957
SC 614 : [1957] SCR 981; Ravji alias Ram Chandra
v. State of Rajasthan (1996) 2 SCC 175 : [1995] 6 B
Suppl. SCR 195; Swamy Shraddananda @ Murali
Manohar Mishra v. State of Karnataka (2007) 12 SCC
288 : [2007] 7 SCR 616; Panchhi and others v. State
of Uttar Pradesh (1998) 7 SCC 177 : [1998] 1 Suppl.
SCR 40; Vashram Narshibhai Rajpara v. State of
Gujarat (2002) 9 SCC 168 : [2002] 3 SCR 422; Om C
Prakash v. State of Haryana (1999) 3 SCC 19 : [1999]
1 SCR 794; Swamy Shraddananda (2) v. State of
Karnataka (2008) 13 SCC 767 : [2008] 11 SCR 93;
Sangeet and Another v. State of Haryana (2013) 2 SCC
452 : [2012] 13 SCR 85; Dagdu and Others v. State of D
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Mohinder Singh v. State of Punjab (2013) 3 SCC 294 :
[2013] 3 SCR 90; Ram Deo Prasad v. State of Bihar
(2013) 7 SCC 725 : [2013] 6 SCR 108; The Collector
of Customs, Madras and Others v. D. Bhoormall (1974)
2 SCC 544 : [1974] 3 SCR 833; Santa Singh v. State of E
Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229;
Mohd. Maqbool Tantray v. State of Jammu and Kashmir
(2010) 12 SCC 421 : [2010] 3 SCR 589 – referred to.
Case Law Reference
F
(In the Judgment of R. F. Nariman, J. [for himself and
Surya Kant, J.]):
[1983] 3 SCR 413 relied on Para 18
[2017] 6 SCR 1 relied on Para 19
G
[1994] 1 SCR 37 referred to Para 19
[1994] 1 SCR 37 referred to Para 19
[2008] 11 SCR 184 referred to Para 19
[2012] 2 SCR 225 referred to Para 19
H
1022 SUPREME COURT REPORTS [2019] 18 S.C.R.
A (1999) 6 SCC 60 referred to Para 20
[2001] 5 Suppl. SCR 12 referred to Para 20
[2017] 3 SCR 850 referred to Para 21
[2019] 3 SCR 446 relied on Para 22
B In the Judgment of Sanjiv Khanna, J.
(1980) 2 SCC 684 relied on Para 2
[1983] 3 SCR 413 relied on Para 5
(2011) 13 SCC 706 relied on Para 8
C
[1957] SCR 981 referred to Para 8
[1995] 6 Suppl. SCR 195 referred to Para 8
[2009] 9 SCR 90 relied on Para 9
[2007] 7 SCR 616 referred to Para 11
D
[1998] 1 Suppl. SCR 40 referred to Para 12
[2002] 3 SCR 422 referred to Para 12
[1999] 1 SCR 794 referred to Para 12
(2016) 7 SCC 191 followed Para 13
E
[2008] 11 SCR 93 referred to Para 13
[2012] 13 SCR 85 referred to Para 16
[2019] 8 SCR 266 relied on Para 17
F [1977] 3 SCR 636 referred to Para 17
[2013] 3 SCR 90 referred to Para 17
[2010] 2 SCR 633 relied on Para 19
[2013] 6 SCR 108 referred to Para 21
G [1974] 3 SCR 833 referred to Para 21
[1977] 1 SCR 229 referred to Para 32
[1999] 2 Suppl. SCR 693 relied on Para 36
[2010] 3 SCR 589 referred to Para 36
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1023
HALL POLICE STATION, COIMBATORE
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
Nos. 1174-1175 of 2019.
From the Judgment and Order dated 24.03.2014 of the High Court
of Judicature at Madras in R. T. No. 1 of 2012 and in Criminal Appeal
No. 854 of 2012.
P. Vinay Kumar, Adv. for the Appellant. B
M. Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshwaran, Advs.
for the Respondent.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. C
1. Leave granted.
2. The present appeals raise the spectre of a ghastly rape and
murder. The brief facts necessary for appreciation in these appeals are
as follows.
D
3. One Mohanakrishnan(at 7.50 a.m. on 29.10.2010) who had
borrowed a vehicle from PW.7 its owner, picked up two children, a girl
aged 10 years old and her brother aged 7 years old from outside a Hindu
Temple as the children were preparing to go to school.This
Mohanakrishnan was seen by PW.3, the priest of the particular Vinayakar
E
Temple and by PW.9, the grandmother of the two children, taking the
children away in the aforesaid vehicle. Mohanakrishnan then drove the
children to a petrol pump at around 8.15 a.m. on the same day, and at
9.30 a.m. picked up the Appellant from his house in Angalakuruchi. The
children were then taken to a remote area called the Gopalsamy Temple
Hills at roughly 10.45 a.m. at which point rape was allegedly committed F
on the girl whose hands were tied by both Mohanakrishnan and the
Appellant. Thereafter, considering that the girl had been brutally raped
(her anus having ruptured), the two accused bought what is called cow
dung powder which is nothing but a poisonous substance which is added
to cow dung to keep insects away. This substance together with milk
that was also purchased by the Appellant herein was allegedly G
administered by both Mohanakrishnan as well as the Appellant to the
two children in an attempt to do away with both of them.Both children
ingested only a small portion of the cow dung powder mixed with the
milk and did not die.Mohanakrishnan and the Appellant thereafter to do
away with both the children threw them in Parambikulam-Axhiyar Project H
1024 SUPREME COURT REPORTS [2019] 18 S.C.R.
A canal (“PAP Canal”) and it was alleged by the prosecution that the girl
was tied up and pushed into the canal by the Appellant herein whereas
the boy was pushed into the canal by Mohanakrishnan. At 5.00 p.m.,
PW.24 saw the school bags of the two children floating in the canal,
which were then given to PW.22. Later on the same evening, PW.22
informed PW.10 the principal of the school who then informed the police
B
between 6.15 p.m. and 6.30 p.m. the same evening. At 9.00 p.m. on the
same day, Mohanakrishnan went to the house of PW.7 one Anbu
@Gandhiraj, who informed the police,as a result of which
Mohanakrishnan was arrested at 9.45 p.m. on the same night at PW.7’s
house. At 9.30 a.m. on the next day, the girl’s body was recovered from
C the canal. On 31.10.2010, the present Appellant was arrested at 7.15
a.m. and on the same day, the boy’s body was also recovered from the
canal. To complete the narrative, Mohanakrishnan was shot dead by the
police on 9.11.2010 in an encounter. That left only the Appellant to be
tried as an accused. A confession was recorded before the Magistrate
in a statement made under Section 164 of the Code of Criminal
D
Procedureby the Appellant on 20.11.2010 which was partially retracted
only by a letter dated 25.7.2012, which the Appellant asked the trial
court to treat as a statement under Section 313 of the Code of Criminal
Procedure.
4. The prosecution examined a large number of witnesses - 49 in
E all. The trial court in a detailed judgment ultimately held the Appellant
guilty under Section 120-B, Section 364-A, Section 376, Section 302,
Section 302 read with Section 34 and Section 201 of the Indian Penal
Code. Under Section 376 IPC, the Appellant was awarded life sentence,
and for the offence under Section 302 IPC, he was given the death
F sentence.
5. The High Court of Madras, in the impugned judgment dated
24.3.2014, set aside the Appellant’s conviction under Section 120-B and
364-A of the Penal Code, but confirmed the sentences under Sections
376, 302, Section 302 read with Section 34, and Section 201. After
G considering aggravating and mitigating circumstances, ultimately the death
sentence imposed by the trial court was confirmed by the High Court.
6. In order to make out the offence of kidnapping the two children
for ransom, a number of witnesses were examined. Though the Appellant
was acquitted for this offence, yet the High Court found that the last
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1025
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
seen theory was made out in the facts of the present case after closely A
scrutinizing the evidence of the following witnesses:
1. Sundararajan – PW.3, who was the temple priest who saw
Mohanakrishnan picking up the two children around 8.00 a.m.
on 29.10.2010.
2. Senthil Kumar – PW.20, a tailor, who saw both the accused B
with the children at 10.00 a.m. on that day.
3. N. Mani - PW.25, owner of a brick kiln in the foot hills of
Gopalasamy Hills, who saw both the accused with the children
at roughly 10.45 a.m. as they were coming down from the
Gopalasamy Hillock. C
4. Saravanakumar- PW.23, owner of a bakery who sold the
milk at 1.00 p.m. on the same day to the Appellant, who saw
the two children with Mohanakrishnan and the Appellant; and
5. R. Soundararajan – PW. 24 who saw both the accused with D
the children in a Maruti van around 3.00 p.m. on the same
day.
On the basis of this evidence, the Court held:-
“38. After closely scrutinizing the evidences of (a) Sundararajan
[P.W.3], the temple Priest, who saw Mohanakrishnan picking up E
the two children around 8.00 a.m. on 29.10.2010; (b)K.Senthil
Kumar [Tailor, P.W.20], who saw both the accused with the
children at 10.00 a.m. on 29.10.2010; (c) N.Mani [P.W.25] owner
of the Brick kiln at the foothills of Gopalsamy Hills, who saw both
the accused with the children at 10.45 a.m. on 29.10.2010, while
F
they were coming down from the hills; (d) Saravanakumar
[P.W.23] owner of “Winner Bakery”, who sold milk at 1.00 p.m.
on 29.10.2010 to the accused and who saw the two children with
them and (e) R.Soundararajan [P.W.24] who saw both the accused
with the children in the Maruthi van around 3.00 p.m. on that day,
we have no hesitation in our mind that the prosecution has proved G
beyond reasonable doubt that Mohanakrishnan picked up the two
children and later Manoharan joined him and together both the
accused were last seen with the two children and thus, the
prosecution has proved the kidnapping and last seen theory without
any iota of doubt.”
H
1026 SUPREME COURT REPORTS [2019] 18 S.C.R.
A So far as rape of the girl by the Appellant is concerned, the High
Court concluded as follows:-
“44. To sum up, we hold that the panties M.O.1 was recovered
with hairs on 29.10.2010 in the Maruthi van with the help of
Saravanan, P.W.43, the expert of Forensic Sciences Laboratory
B and the same was sent to the Court without delay and thereafter,
the Court had sent it to the Forensic Sciences Department, where,
after DNA comparison, the experts have opined that the DNA
profiles in the pubic hairs tally with the DNA profile extracted
from the blood of Manoharan.
C 45. Since we have left incomplete the discussion in Para No.9
supra about “Evidence Relating to Rape of ‘X’”, we are now
concluding it after answering to the points raised by
Mr.A.Raghunathan relating to the seizure of the panties (M.O.1).
46. From (a) the final opinion of Dr.Jeyasingh that ‘X’ was
D subjected to sexual assault; (b) injury on the penis of Manoharan;
(c) the absence of panties in the dead body of ‘X’; (d)the presence
of panties (M.O.1) in the Maruthi van; (e)identification of the
panties (M.O.1) by ‘X’’s father; (f)presence of hairs on it at the
time of recovery and (g)matching of DNA profile extracted from
the hair with that of Manoharan, we hold that Manoharan has
E subjected ‘X’ to sexual assault. To come to this finding also, we
have still not used the judicial confession given by Manoharan.”
The High Court devoted a few pages to the confession made by
the Appellant to the Magistrate. The High Court held:
F “47. Confession of Manoharan:
L.Sathyamoorthy, P.W.28, Judicial Magistrate No.1, Coimbatore
examined Manoharan on 19.11.2010 and extensively questioned
him and made a roving enquiry in order to find out if he was
voluntarily giving confession statement. The questions were asked
in Tamil and the answers were also recorded in Tamil by the
G
learned Judicial Magistrate. 17 questions were put to him on
19.11.2010. Thereafter, he was sent back to the jail for reflection
and was directed to be produced the next day again i.e. on
20.11.2010. On 20.11.2010, the learned Judicial Magistrate has
put nine questions to him. He has even told Manoharan that he
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1027
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
need not have to give any confession. We also went through the A
preliminary examination done by the Judicial Magistrate on
19.11.2010 and 20.11.2010 and we find that the Judicial Magistrate
has not mechanically acted, but has sincerely endeavoured to make
the accused be aware of his rights and also the fallout of giving a
confession. Sufficient reflection time was also given by the learned
B
Judicial Magistrate and thereafter, he has proceeded to record his
confession.”
It then set out some of the relevant questions that were asked by
the said Magistrate to the Appellant as follows:-
“49. We gave our anxious consideration to the arguments advanced C
by the learned senior counsel and therefore, we scrutinized
carefully the questions put by the Judicial Magistrate on 19.11.2010
and 20.11.2010.
The learned Judicial Magistrate has put 17 questions on 19.11.2010.
Some relevant questions run thus (English Translation): D
Question No.5 : Do you know that I am a Judicial Magistrate
No.1, Coimbatore?
Ans :Yes. I know that this is Judicial Magistrate Court, but
only from you, I know the number.
E
Question No.9 :Do you know as to why you have come here?
Ans : I want to give a true statement to the Judicial Magistrate.
That is why I have come here.
Question No.10 :Did police torture to give statement in any
manner? F
Ans :No. Nothing like that has happened.
Question No.11 :Did the Police or anyone tell you that if you
give confession statement, it will be beneficial to you and if
you do not give confession statement, they will do something
to you? G
Ans :No one has said like that to me.
Question No.12 : Are you aware that you have no duty to give
confession?
H
1028 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Ans :I have understood it from what you told now.
Question No.15 :I am asking you once again this question, Has
anybody tortured you or induced you to give confession?
Ans :No. Nobody has tortured me.
B 50. Again on 20.11.2012, some questions were asked to Manoharan
in order to find out whether he was voluntarily willing to give
confession. Only thereafter, the learned Judicial Magistrate has
recorded the confession.”
Since the confession was later partially retracted, the High Court
C dealt with this aspect of the matter as follows:-
“61. In this case confession was recorded on 20.11.2010 and it
was retracted only on 13.08.2012 during the cross examination of
Mr.L.S.Sathiyamoorthy (P.W.28). When Manoharan was put the
following question under Section 313 Cr.P.C. viz. “That P.W.28
D Mr.L.S.Sathiamoorthy in his evidence has stated that he was
Judicial Magistrate in Coimbatore and that he examined
Manoharan on 19.11.2010 in the Court for the purpose of recording
the confession statement and for that he had taken appropriate
steps and had also given 24 hours time to reflect and that on
20.11.2010, he recorded the confession statement running to 17
E pages in the appropriate manner. That confession statement is
Ex.P.18. What do you say?” The answer given by Manoharan is,
“Correct”. This singular answer of Manoharan demolishes the
defence argument that the Magistrate had not followed the proper
procedure for ascertaining whether the confession was voluntary.
F 62. xxx xxx xxx
63. We have already extracted the statement of Manoharan under
Section 313 Cr.P.C. with regard to the evidence of
Mr.L.S.Sathiamoorthy P.W.28. This statement under Section 313
Cr.P.C. was recorded on 04.09.2012, after the evidence, whereas
G Mr.L.S.Sathiamoorthy was cross examined on 13.08.2012. In
other words on 13.08.2012, when P.W.28 was cross examined by
the counsel, the confession was retracted. But in the 313
examination recorded subsequently on 04.09.2012, Manoharan
had admitted that the confession was properly recorded.
Manoharan was examined by us u/s 313 Cr.P.C. on 27.02.2014
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1029
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
with regard to the inculpatory portion in his confession statements. A
At that time he stated that Police forced him to give the confession.
64. We may now mention about the letter dated 25.07.2012 written
by Manoharan from jail addressed to the Sessions Judge which
he wanted to be treated as his statement under Section 313
Cr.P.C.’73. In that letter he has stated that Police made him to B
confess to the crime and had it videographed in the Police Station.
Thereafter they played the videograph to the Magistrate and the
Magistrate merely wrote down the confession statement by seeing
the videograph. In other words, the Magistrate did not record any
statement from him directly but copied a statement from the
videograph. This is given as a reason for retraction. Such a C
suggestion was not even put to Mr. Sathiamurthi, the Magistrate
when he was cross examined. Applying the test in Subramania
Goundan’s case cited above, we cannot but simply reject the very
retraction.”
The High Court then held that the confessional statement given D
by the Appellant was voluntarily made and the retraction was clearly an
afterthought.
The confessional statement given by the Appellant was set out
verbatim by the High Court as follows:-
E
“66. The English translation of the confession statement given by
Manoharan that was given in Tamil is given below:
“I used to go for flower business along with my mother Amavasai
Selvi on Fridays. I do not remember the date. About two weeks
ago, on a Friday, I finished my flower business and had my F
breakfast at 9.15 in the morning. Afterwards, when I was about
to attend to tractor work of my owner Thambu, my friend
Mohanakrishnan, who studied with me till 7th standard in the same
school at Angalakurichi, came to my home at 9.30 A.M. in the
morning in a Maruti Omni Van. He knew my house. He called me
to Azhiyaru dam. He asked for some rope, which was lying near G
my house, took that rope and kept it in the omni van. He asked me
to get into the van and I sat next to the driver seat in the omni van.
A boy and a girl in School uniform were seated at the back seat.
When I asked about them, he told me that they had come to see
Azhiyaru, and that a school bus had already gone ahead. When
H
1030 SUPREME COURT REPORTS [2019] 18 S.C.R.
A we went to the house of Mohanakrishnan, which was located
near the Tank-mound, which was in Azhiyaru road, there was a
tailor. He asked that tailor for two covers and obtained them.
There was no possibility for the tailor to look at the persons, who
were seated in the omni van. The vehicle was parked on the
road. In the meantime, a telephone call came. When I asked,
B
Mohanakrishnan he said that it was his mother, who spoke over
the phone. Again, we went to my house in the vehicle. He told me
to get fifty rupees. I got it from my mother. He asked me to buy
two packets of cow dung powder for mopping up his house. I got
two packets for Rs.12/- Rs.6/- each from Nayakam’s shop, which
C is next to my house. I kept them in the omni van and we went
straight to the hill of Gopalsamy temple. We parked the vehicle at
the foothill and walked up the hill. Mohanakrishnan asked the
children to climb up the hill so that they could see tiger, lion and
deer. Both of them ie., the girl and the boy walked some distance
and stopped. They sternly said that they would not come up. They
D
started crying stating that they wanted to go to school.
Immediately, Mohanakrishnan took the mobile phone and made a
fake call, as if, he was talking to the Principal Sir, saying that they
would come then, that the vehicle broke down and that they would
come to the school immediately. He asked for apology from the
E Principal for being late to the school and made the children believe
his words. But the small boy asked his elder sister in their language,
not to go. Then both of them started crying. Hence, all of us came
back without going up the hill. Immediately, we started from the
Gopalsamy foothill and crossed Manjanaickanur, Kambalampatti,
crossed the bridge and went to a place adjacent to the canal. That
F
place looked like a big forest with groves all around. I do not
know the name correctly. We parked the vehicle under the tree
and I said I needed to answer nature’s call urgently. So saying, I
went by the side of the canal. The boy, who was in the vehicle
was tied with a rope near the side of the driver seat, so that he
G could not go out. He put that female child alone in the back seat
and tied her hands behind. When I asked him, he said that I was
not aware that he and her father had a deal. Then Mohan stripped
all his garments, removed the pant of the said girl, and laid himself
upon her. When I asked him, he told me he would make the girl a
prostitute. He had sex with that girl and raped her. I thought if the
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1031
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
small boy was present there at that time, it would be embarassing A
and I slowly took him out. Later on, after some time, I returned
with that small boy. Then I asked Mohan as to how he felt. He
said that his male organ could not properly penetrate. I asked him
to give me a chance. Immediately he asked me to have sexual
intercourse with that girl. Mohan sat in the front seat and watched.
B
I went and saw the said girl who did not wear the pant and who
was in the back seat. When I placed my penis in the front, the girl
cried stating that she felt pain She was also adamant. Then, I had
intercourse with her on her back side, through her rectum. That
also did not suit me. Immediately, I masturbated and ejected the
seminal fluid ([tpe;Jjz;zpia). Having thought that if the matter C
became public and revealed out, it would become a big problem
for us, all the 4 of us went near our house by the vehicle. There,
I bought milk in a plastic bag for ten rupees. Mohan asked me to
buy milk saying that it was required for the children. Then in order
to let the children believe that, we transferred the milk into a water
D
bottle and mixed it with cow dung powder. When we made the
children drink that, the girl and the boy swallowed half and spat
out the remaining half on the seat. When I bought the said milk, I
bought two disposable plastic tumblers. I asked them to drink only
through that. She swallowed only half of that and spat the
remaining milk. After giving the cow dung powder, we drove the E
omni vehicle again to Manjanayakanur. It would be noon time,
when we went to Deepalipatti. We did not know the time exactly.
He told me that in such a situation, one should always pass through
the place, which is not frequented by people. He went near the
canal, pushed the girl and returned. Then he was sweating a lot.
F
Thereafter, I pushed the boy and he was washed away by the
flow of the water in the canal, in which water had been flowing
fully. Then, after travelling some distance Mohan halted the vehicle,
and when he saw me, it looked that he would push me too. But,
we took the school bag and threw it in the canal. Then he dropped
me at Angalakurichi tollgate. Then, he told me that he had thought G
that he would get Rupees Twenty lakhs, and that the event had
resulted in that manner. He told that he would abscond thereafter.
He told me that he would sport “ “Lion-moustache” and asked
me not to disclose to anyone and to come with him. Since, Mohan
told me that he would buy an autorickshaw for me, I went with
H
1032 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Mohan and it happened like this. Then, the same day, at 7.30 p.m.
Mohan called me up in my mobile number 9790299953 from his
mobile number and talked to me. I don’t know the number. He
threatened me asking not to disclose the matter to anyone. This
only had happened I don’t wish to say anything else.”
B MAGISTRATE’S NOTE [ENGLISH VERSION]
“I recorded the statement given by Manoharan, the person who
was charged as above, in my own handwriting as stated by him.
After recording completely, it was read over to him clearly. I asked
him to read it and after he had acknowledged it as correct, his
C signature was obtained in my presence. Till the completion of the
recording of the statement, the doors of the court were bolted,
closed and the entire proceedings were held in camera. Then, no
one else other than me, my court assistant Thiru.T.Raja and Office
Assistant M.M.Vijayakumar were present.”
D This being done, then the High Court in paragraph 70 in tabular
form set out in a table the facts that are admitted in the confessional
statement; what continues to be admitted and what is retracted
by the letter dated 25.7.2012; and the other evidence on record
which otherwise corroborates the confessional statement. This
aspect of the case is important and is set out hereinbelow:-
E
“70. Now we are giving a tabular column to corroborate the
confession statement:
F
G
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1033
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
A
3. Mohanakrishnan took the He admits this --
two children in School fact
uniform in the Maruthi Omni
Van
4. Mohanakrishnan went to He admits this Evidence of the B
meet the Tailor fact Tailor P.W.20
Senthilkumar, who
saw both of them
with the children at
10.00 a.m.
C
5. Mohanakrishnan and He admits this P.W.35 Nayagam
Manoharan went to purchase fact corroborate this fact.
cow dung powder from the
shop of Nayagam [P.W.35]
D
6. Both of them went to He admits this Both of them were
Gopalsamy hills with the two fact seen with two
children and climbed the hill children at
by walk Gopalsamy Hills by
N.Mani, P.W.25. E
7. Both of them proceeded to a He admits this --
secluded place besides the fact
canal
F
8. Both of them parked the He admits this --
vehicle and Manoharan goes fact
to attend nature's call
9. On Manoharan returning, he He admits this --
finds Mohanakrishnan raping fact
G
'X' after tying her with a rope
10. After Mohanakrishnan, He does not --
Manoharan raped 'X' admit this fact
H
1034 SUPREME COURT REPORTS [2019] 18 S.C.R.
A
11. Manoharan attempts vaginal He does not The postmortem
coitus, the child cried, he admit this fact shows 'X' had
does anal coitus injuries on vagina
and anus.
Manoharan had
injury in the penis.
B
12. Thereafter they went to He admits this Saravana Kumar,
winner bakery and purchased fact P.W.23, owner of
milk for Rs.10/- Winner Bakery
corroborates.
The Children are given cow
C 13. dung powder mixed in milk Giving Milk Viscera shows the
alone is presence of
admitted auramine poison in
the stomach and
small intestine of
both the children
(Ex.P.50 and 53)
D
14. The children drank some of He does not Stains were found in
the milk mixed with admit this fact the floor mat of the
auramine and spit the rest in van
the van
E 15. Both the accused take the He does not Both of them are
children to Deepalapatti area admit this fact seen by Sundarrajan,
of the canal P.W.24.
16. Mohanakrishnan pushed 'X' He does not Body of 'X' and 'Y'
in the canal and Manoharan admit the fact are recovered from
F pushed 'Y' in the canal the canal and the
postmortem report
shows that they died
of drowning and
they had auramine
poison in the
stomach
G
Based on this, the High Court, therefore,concluded:-
“71. Therefore we have no hesitation in holding that the confession
statement Ex.P.18 has been corroborated in all aspects and the
same is true. If one reads the letter dated 25.07.2012, which
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1035
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
Manoharan wanted to treat as a written statement under Section A
313 Cr.P.C., the exculpatory portions are absolutely incredible.
He says that it was Mohanakrishnan, who raped ‘X’, but he was
simply sitting and watching. Then, he says that he got down from
the van at a distance and after that he was picked up by
Mohanakrishnan again and at the time, the two children were
B
missing. What is baffling us is, Manoharan was aged about 23
years at that time and he did nothing to prevent Mohanakrishnan
from committing a horrendous crime of raping a child and pushing
the two children into the running canal. We find that the explanation
given by Manoharan in his written statement is patently false and
the Hon’ble Supreme Court has stated that a false explanation C
will provide the missing link in a case based on circumstantial
evidence.”
“78. To sum up, we hold that the prosecution has proved all the
circumstances beyond reasonable doubt and if we apply the golden
rule laid down by the Supreme Court in Sharad Birdhichand Sarda D
vs. State of Maharashtra [1984 (4) SCC 116] the inescapable
inference we come to is, that Manoharan had joined
Mohanakrishnan who had already kidnapped the two children;
that Manoharan raped ‘X’ and also had sodomicaluxuria (anal
coitus); that Manoharan shared the common intention with
Mohanakrishnan in the murder of ‘X’, by pushing her in the canal; E
and Manoharan murdered ‘Y’ by pushing him in the canal; the
murder was committed in order to cover up the offence of
kidnapping and rape.”
When it came to confirming the death sentence, the High Court
held:- F
“82. In this case, the aggravating circumstances are:
(i) The offence is one of rape of a minor and murder of two
children;
(ii) The hands of ‘X’ were tied behind and one after the other G
they have raped her;
(iii) After committing rape, cow dung powder which contains
auramine and which is normally used for committing suicide was
purchased from a shop and milk was purchased from another
shop. H
1036 SUPREME COURT REPORTS [2019] 18 S.C.R.
A (iv) Thereafter, they mixed the cow dung powder and milk and
filled it in a water bottle and gave it to the children. Both the
children drank a little bit of it and spit the balance in the car. Then
the accused realised that since the children had spit the milk mixed
with poison, they may not die. They wanted to make sure that the
children die and so they took the children to Deepalapatti, a
B
secluded place in the outskirts of Coimbatore District, where the
P.A.P. canal flows with gusto.
(v) They pushed one child after the other and the body of the
children were recovered several kilometres away in the canal.
Manoharan pushed ‘Y’
C
and the body was recovered 12 km away from Deepalapatti two
days later. Here both the victims were innocent, helpless and
defenceless children.
83. MITIGATING CIRCUMSTANCES: There is nothing to
D suggest that Manoharan suffered from any emotional or mental
imbalance or disturbance or was under any external provocation
while committing this offence. As regards the chances of him not
indulging in commission of such a crime again, we find that even
in his letter addressed to the learned Sessions Judge, he was trying
to fix the responsibility on Mohanakrishnan and was attempting to
E absolve himself completely of the offence. He went to the extent
of even charging that the Magistrate had colluded with the police
in recording the confession by seeing the videograph. There does
not seem to be any remorse shown by Manoharan.
84. CRIME TEST: The victim in this case were 10 and 7 years
F old and they were defenceless. The victim ‘X’ was first raped by
Mohanakrishnan; Manoharan committed rape and since she cried,
he committed sodomy. Since that also did not satisfy him, he
masturbated in order to release his excitement in the presence of
the children. They were administered poison and then to be doubly
G sure that they die, they were pushed into the running waters.
85. CRIMINAL TEST: Manoharan is an able bodied person and
is aged about 23 years. As stated earlier, he does not seem to
show any inkling of reformation. Therefore, we hold that the
criminal test is also satisfied.
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1037
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
86. RR TEST: A
This is society centric test and not judge centric test, i.e. whether
the society will approve the awarding of death sentence to certain
types of crime or not. In Sevaka Perumal v. State of Tamil Nadu
[1991 (3) SCC 471] the Supreme Court has said :
“The “rarest of the rare case” comes when a convict would be a B
menace and threat to the harmonious and peaceful coexistence
of the society. Where an accused does not act or any spur of the
moment provocation and he indulged himself in a deliberately
planned crime and meticulously executed it, the death sentence
may be the most appropriate punishment for such a ghastly crime.” C
In this case also, the accused will be a menace to the society as
could be inferred in the manner in which he raped a 10-year old
child and pushed a 7-year old boy in the canal. Hence, the R.R.
test is also satisfied.”
7. Shri P. Vinay Kumar, learned counsel appearing on behalf of D
the Appellant, assailed the High Court judgment by stating that he adopted
the arguments of Shri A. Raghunathan where Shri Raghunathan assailed
the allegation that the Appellant had raped the 10 years old girl. In
paragraph 41 of the judgment, the High Court had held regarding the
evidence relating to rape as follows:- E
“41.Evidence relating to Rape of ‘X’:
There is no direct evidence to prove this fact. The prosecution is
relying upon the following pieces of evidence for inferring rape.
(a) Dr.Jeyasingh [P.W.46], who conducted the autopsy on the
F
body of ‘X’, has stated that he found “(4) Contusion 2x1 cm x 0.5
cm depth noted over in the posterior fouchette and lateral wall of
vagina. Hymen Intact. (5)On examination of anus:- Anus found
roomy measuring 3 cm in diameter and mucosal tear 1 x 0.5cm x
mucosal deep noted over left lateral aspect of the anus at the
level of muco-cutaneous junction. On dissection of Thorax and G
Abdomen: Contusion 4x2 cm noted over anterior aspect of lower
end of uterus.” In his final opinion, Ex.P.50, he has stated, “The
deceased would appear to have died of DROWNING. Injuries
noted on the vagina and anus due to forcible sexual assault. The
H
1038 SUPREME COURT REPORTS [2019] 18 S.C.R.
A deceased has consumed auramine poison prior to death (detected
in stomach & small intestine)”.
(b) Dr.Jeyasingh, examined Manoharan on the orders of the
Magistrate on 04.11.2010 and observed the following injury on his
penis in his report Ex.P.56.
B “A dark colour contusion noted over proximal part of glands penis
around urethral orifice.”
(c)The Police had recovered the panties [M.O.1] of ‘X’ with some
hair strand from the Maruthi van as early as on 29.10.2010 and
had sent the same to the Tamil Nadu Forensic Sciences Laboratory
C through the Court for D.N.A. Analysis. The blood samples and
saliva that were collected from Mohanakrishnan and Manoharan
by Dr.Bhuvana [P.W.44] were also sent to the Tamil Nadu
Forensic Sciences Laboratory. The D.N.A. analysis was done by
Mrs.LakshmiBalasubramaniam [P.W.49]. She was examined by
D us in this Court, the reason for which we have already given in
the earlier part of the judgment. In her evidence, she stated that
she extracted D.N.A. from the blood samples of Mohanakrishnan
and Manoharan and amplified them for amelogenin and for 15
Short Tandem Repeat markers using PCR amplified STR
technique. The hair strands that were received by the Forensic
E Sciences Department from the Court with the panties [M.O.1]
was also subjected to amplification for amelogenin. The DNA
typing results of the blood samples of Mohanakrishnan and
Manoharan were compared with the DNA profile of the hair in
the panties [M.O.1]. On comparison, P.W.49 found that the DNA
F profile of the hair did not match with that of Mohanakrishnan, but,
matched with that of Manoharan. Her report was marked as
Ex.P48(A). The defence counsel did not seriously challenge the
final opinion of the expert, but Mr.A.Raghunathan, learned Senior
Counsel for the accused attacked the very seizure of the hair and
contended that Manoharan was made to pluck 5 strands of his
G pubic hair on 04.11.2010, when he was examined by Dr.Jeyasingh
[P.W.46] and this was substituted in the cover that was sent to
the Forensic Sciences Department. Mr.A.Raghunathan, learned
Senior Counsel, who cross examined Dr.Jeyasingh [P.W.46],
Mrs.Radhika Balachandran [P.W.48] and the Investigating Officer
H [P.W.47] before us, shaped this defence and presented the
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1039
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
following arguments attacking the seizure of the panties [M.O.1] A
and the pubic hairs from the Maruthi van on 29.10.2010.”
8. Shri Raghunathan’s arguments against the pubic hair of the
Appellant being found on the panty of the dead girl was then dealt with
in great detail after which the High Court then summed up the matter as
follows:- B
“45. Since we have left incomplete the discussion in Para No.9
supra about “Evidence Relating to Rape of ‘X’”, we are now
concluding it after answering to the points raised by
Mr.A.Raghunathan relating to the seizure of the panties (M.O.1).
46. From (a) the final opinion of Dr.Jeyasingh that ‘X’ was C
subjected to sexual assault; (b) injury on the penis of Manoharan;
(c) the absence of panties in the dead body of ‘X’; (d)the presence
of panties (M.O.1) in the Maruthi van; (e)identification of the
panties (M.O.1) by ‘X’’s father; (f)presence of hairs on it at the
time of recovery and (g)matching of DNA profile extracted from D
the hair with that of Manoharan, we hold that Manoharan has
subjected ‘X’ to sexual assault. To come to this finding also, we
have still not used the judicial confession given by Manoharan.”
9. Having gone through the exhaustive analysis of the High Court
on this aspect, we feel no reasonable ground has been made out by E
learned counsel for the Appellant to assail the same and, therefore,
confirm the findings that the Appellant had subjected the girl to sexual
assault.
10. Learned counsel for the Appellant, then argued that the Learned
Magistrate should have refused to record the confessional statement F
made on 20.11.2010 given the fact that Appellant had been beaten by
the police. The High Court has dealt with this aspect of the case by
stating that the Ld. Magistrate asked the Appellant repeatedly as to
whether the statement that is being given by him is voluntary or because
of torture or beatings. The Appellant repeatedly stated that the statement
being given was voluntary. Further, the High Court has also adverted in G
paragraph 60 of its judgment, to the fact that police custody ended after
the first 15 days of arrest that is on 14.11.2010. The accused was
produced before the Ld. Judicial Magistrate only on 19.11.2010 after
which statement was recorded on 20.11.2010. It was clear therefore
that on this date there was no possibility of handing back the Appellant
H
1040 SUPREME COURT REPORTS [2019] 18 S.C.R.
A to police custody. Further, the retraction that was made from the
confessional statement was made one year and nine months after it was
made and as can be the seen from the table set out in paragraph 70 of
the impugned judgment, the retraction statement confirms the original
confessional statement in every detail except that the Appellant retracts
the part played by him in the rape and murder of the ten year old girl and
B
the girl & boy respectively. For all these reasons, therefore we reject
the arguments of the Ld. Counsel for the Appellant in this behalf.
11. The Appellant’s counsel then argued that PW.24 who is a
very material witness as to the last seen theory cannot possibly be
believed, because in his evidence he states that he saw the children
C after the girl was raped standing on the road next to Mohanakrishnan
and the Appellant, and found nothing untoward with the children, who
did not utter a word or show in any manner that they have just gone
through the most gruesome ordeal. According to him, PW.24’s version
is, therefore inherently not believable and cannot be relied upon. Even if
D we were to accept learned counsel’s argument on this aspect, we must
not forget that for the last seen theory a number of other persons were
relied upon by the High Court. PW.20, PW.25 and PW.23 all saw the
two accused together with the children at different times on 29.10.2010.
Indeed, even if one were to read the confessional statement of the
Appellant together with the retraction thereof, the fact that he purchased
E milk at 1.00 p.m. from PW.23 is clearly made out and the fact that
Mohanakrishnan went to meet the tailor, was also admitted by him in
both the original confessional statement as well as the retraction. It is
clear therefore that the evidence of PW.20 and 23 are corroborated by
the confessional statement and the retraction made by the Appellant and
F therefore the factum of the two accused being with the two children in
the vehicle is clearly made out and thus the High Court’s conclusion that
the last seen theory can be relied upon cannot possibly be assailed.
12. Learned counsel for the Appellant then argued that having
raped a girl in the morning hours, it is highly improbable that the victim
G would be paraded around and taken to so many places including the
shop selling milk and cow dung powder, and that the entire story is so
inherently improbable that it should be rejected. We are afraid that this
kind of argument flies in the face of the confessional statement made
even when read with the retraction thereof. All the facts as to
Mohanakrishnan abducting the children, raping the girl and murdering
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1041
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
the children are contained in both the statement as well as the retraction A
of the Appellant. It is only in the retraction that the Appellant seeks to
exculpate himself completely from rape and murder, which, as has rightly
been held by the High Court,cannot be given any credence. This is also
for the added reason that once it is accepted that the DNA sample from
the pubic hairs of the Appellant are found in the panty of the dead girl,
B
rape gets established beyond reasonable doubt.
13. The argument of the learned counsel for the Appellant that no
semen or blood was found on the body of the dead girl pales into
insignificance in view of the DNA evidence. In any case, the body of
the dead girl was found in a canal, which had fast flowing water in it,
several kilometers away, after one day of the commission of the crime. C
It is obvious that with this passage of time whatever semen and blood
that may have been on the dead body when the girl was thrown into the
canal has been effaced by the fast flowing water in which the body was
immersed for a day after it was recovered.
14. Learned counsel then tried to argue that the allegation of tying D
up of the children has no evidence to support it. We are afraid that this is
also not correct inasmuch as in both the confessional statement as well
as the retraction thereof it is clear that Mohanakrishnan at least tied the
girl with a rope and then raped her.
15. The Appellant then argued that the panty was found later in E
the car thereby rendering its being found in the car suspect, and that the
panty which is stated to be torn was never so stated in the earlier
statements made to the police. What is clear from the forensic examination
is that the panty was found in the car only after the car was searched at
2.00 a.m. on the night after the rape and the murder as is clearfrom a F
reading of exhibit P.5 marked on the side of the prosecution.
16. Learned counsel for the Appellant then argued that it is wholly
improbable that the lunch bag of the murdered boy would be taken home
by the accused Appellant and would be found by the police at his house
two days thereafter. Obviously therefore the aforesaid bag has been G
planted by the police. Even if this is so, this does not take the Appellant
anywhere. What is clear from a narration of the facts above is that it is
clear that the children were initially abducted by Mohanakrishnan after
which the Appellant joined them. The fact that the Appellant brutally
raped the 10 year old girl is corroborated not only by his confessional
H
1042 SUPREME COURT REPORTS [2019] 18 S.C.R.
A statement but also by the DNA test which found the Appellant’s pubic
hair on the panty of the girl. It is clear that once this heinous act was
committed, the next important step would be for both the accused to do
away with the children so that they would not be able to give evidence
as to the kidnapping and rape committed on the girl. Towards this end, it
is admitted that the Appellant purchased “cow dung” powder, that is
B
poison, and milk, and stated in his confessional statement that the
twowerethen mixed and administered to both children by both the
accused. Since the poison did not work, the only other way of doing
away with the children would be to find some other method, and the
method found by the two accused was to take the children to the canal
C in question and throw them into the canal so that they would be dead by
drowning. The entire chain of events has been made out and despite this
being a case of circumstantial evidence, the prosecution has clearly
proved its case beyond reasonable doubt. The courts below are right in
convicting the Appellant of rape and murder.
D 17. The question that now arises is whether the death sentence
should be confirmed by this Court. The Appellant has pleaded that the
mitigating circumstances in the present case are that the accused belongs
to a rural area and he is only 23 years old and has no other previous
conviction, and if let out will not be a menace to society. On the other
hand, the counsel for the respondent has argued that this is an extremely
E heinous crime committed ruthlessly and cold bloodedly and that the
aggravating circumstances made out by the High Court clearly outweigh
the alleged mitigating circumstances and therefore this is a clear case
for the death penalty to be imposed.
18. In Machhi Singh v. State of Punjab, (1983) 3 SCC 470,
F this Court laid down the circumstances in which a death sentence may
be imposed for the crime of murder as follows:-
“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
G 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
H safety without his or her own life being endangered because of
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1043
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
the protective arm of the community and on account of the rule of A
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
B
“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 C
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
D
commission of the crime, or the anti-social or abhorrent nature of
the crime, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse E
intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end
in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture
or cruelty in order to bring about his or her death. F
(iii) when the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which G
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
H
1044 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 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.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste
B 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
C with a view to reverse past injustices and in order to restore the
social balance.
(b) In cases of “bride burning” and what are known as
“dowry deaths” or when murder is committed in order to remarry
for the sake of extracting dowry once again or to marry another
D woman on account of infatuation.
IV. Magnitude of crime
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,
E community, or locality, are committed.
V. Personality of victim of murder
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
F
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
G reasons.
38. In this background the guidelines indicated in Bachan
Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980
SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to
the facts of each individual case where the question of imposing
H of death sentence arises. The following propositions emerge from
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1045
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : A
AIR 1980 SC 898 : 1980 Cri LJ 636] :
“(i) The extreme penalty of death need not be inflicted
except in 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 B
with the circumstances of the ‘crime’.
(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 C
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.
(iv) A balance sheet of aggravating and mitigating D
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.
39. In order to apply these guidelines inter alia the following E
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls
for a death sentence?
F
(b) Are the circumstances of the crime such that there is
no alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak
in favour of the offender?”
In so far as Kashmir Singh, that is one of the appellants before
the Court, in this case was concerned, this Court, applying paragraph 37 G
(a), upheld the conviction as follows:-
“44. Insofar as appellant Kashmir Singh s/o Arjan Singh is
concerned death sentence has been imposed on him by the Sessions
Court and confirmed by the High Court for the following reasons:
H
1046 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Similarly, Kashmir Singh appellant caused the death of a
child Balbir Singh aged six years while asleep, a poor defenceless
life put off by a depraved mind reflecting grave propensity to
commit murder.”
It will thus be seen that the fact that the victim of the murder was
B a defenceless 6 year old child, was found sufficient to make Kashmir
Singh’s case a rarest of rare case, shocking the Court’s conscience.
19. In Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, this
Court speaking through Dipak Misra, J. and R. Banumathi, J. had occasion
to deal with a large number of judgments, in which, after considering
C aggravating and mitigating circumstances, this Court has either awarded
the death sentence in the case of violent crimes or life imprisonment.
From paragraph 322 of Dipak Misra, J.’s judgment, all these judgments
are set out in great detail and, therefore, need not be repeated by us. It
may only be noted that in paragraph 349, Dhananjoy Chatterjee v.
State of West Bengal (1994) 2 SCC 220, was referred to, in which
D rape and murder of an 18 year old girl resulted in affirmation of the
death sentence by this Court. Equally, in paras 350 and 351, Laxman
Naik v. State of Orissa (1994) 3 SCC 381, was referred to where a 7
year old girl was raped by her uncle and then murdered, also resulted in
confirmation of the death sentence by this Court. Similar is the case in
E Bantu v. State of U.P. (2008) 11 SCC 113 and Rajendra
PralhadraoWasnik v. State of Maharashtra (2012) 4 SCC 37, referred
to in paragraphs 353 and 354 of the said judgment.
20. However, in Akhtar v. State of U.P. (1999) 6 SCC 60, referred
to in paragraph 356, in a similar case of rape and murder of a young girl,
F this Court awarded life imprisonment because the evidence of witnesses
showed that the murder was not committed intentionally and with any
premeditation as the girl had been picked up for committing rape. Similarly,
in State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622,
referred to in paragraph 357, in the case of a 3 year old girl who was
raped and murdered, this Court held that as the accused had been earlier
G acquitted by the High Court, this Court refrained from imposing the death
penalty in spite of the fact that “this case is perilously near the region of
‘the rarest of rare cases’..…”.
21. Paragraphs 358 to 362 deal with Vasanta Sampat Dupare v.
State of Maharashtra (2017) 6 SCC 631, in which a minor girl child
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1047
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
was raped and murdered. The death penalty was confirmed by this Court. A
After a review petition was then heard in open Court, the death penalty
was reconfirmed despite the fact that the accused had, after the judgment
under review, completed Bachelors Preparatory Program and had a jail
record without any blemish. What was projected was that there is a
possibility of the accused being reformed and rehabilitated and, therefore,
B
the death sentence should not be imposed. This Court turned down this
argument stating that the extreme depravity and barbaric manner in which
the crime was committed and the fact that the victim was a helpless girl
of 4 years clearly outweigh the mitigating circumstances resulting in a
dismissal of the review petition. The Court then went on to confirm the
death sentence on the facts of that case as follows: C
“363. Now, we shall focus on the nature of the crime and manner
in which it has been committed. The submission of Mr Luthra,
learned Senior Counsel, is that the present case amounts to
devastation of social trust and completely destroys the collective
balance and invites the indignation of the society. It is submitted D
by him that a crime of this nature creates a fear psychosis and
definitely falls in the category of the rarest of rare cases.
364. It is necessary to state here that in the instant case, the
brutal, barbaric and diabolic nature of the crime is evincible from
the acts committed by the accused persons viz. the assault on the E
informant, PW 1 with iron rod and tearing off his clothes; assaulting
the informant and the deceased with hands, kicks and iron rod
and robbing them of their personal belongings like debit cards,
ring, informant’s shoes, etc.; attacking the deceased by forcibly
disrobing her and committing violent sexual assault by all the
appellants; their brutish behaviour in having anal sex with the F
deceased and forcing her to perform oral sex; injuries on the body
of the deceased by way of bite marks (10 in number); and insertion
of rod in her private parts that, inter alia, caused perforation of
her intestine which caused sepsis and, ultimately, led to her death.
The medical history of the prosecutrix (as proved in the record in G
Ext. PW-50/A and Ext. PW-50) demonstrates that the entire
intestine of the prosecutrix was perforated and splayed open due
to the repeated insertion of the rod and hands; and the appellants
had pulled out the internal organs of the prosecutrix in the most
savage and inhuman manner that caused grave injuries which
H
1048 SUPREME COURT REPORTS [2019] 18 S.C.R.
A ultimately annihilated her life. As has been established, the
prosecutrix sustained various bite marks which were observed on
her face, lips, jaws, near ear, on the right and left breast, left
upper arm, right lower limb, right inner groin, right lower thigh, left
thigh lateral, left lower anterior and genitals. These acts itself
demonstrate the mental perversion and inconceivable brutality as
B
caused by the appellants. As further proven, they threw the
informant and the deceased victim on the road in a cold winter
night. After throwing the informant and the deceased victim, the
convicts tried to run the bus over them so that there would be no
evidence against them. They made all possible efforts in destroying
C the evidence by, inter alia, washing the bus and burning the clothes
of the deceased and after performing the gruesome act, they
divided the loot among themselves.
365. As we have narrated the incident that has been corroborated
by the medical evidence, oral testimony and the dying declarations,
D it is absolutely obvious that the accused persons had found an
object for enjoyment in her and, as is evident, they were obsessed
with the singular purpose sans any feeling to ravish her as they
liked, treat her as they felt and, if we allow ourselves to say, the
gross sadistic and beastly instinctual pleasures came to the forefront
when they, after ravishing her, thought it to be just a matter of
E routine to throw her along with her friend out of the bus and crush
them. The casual manner with which she was treated and the
devilish manner in which they played with her identity and dignity
is humanly inconceivable. It sounds like a story from a different
world where humanity has been treated with irreverence. The
F appetite for sex, the hunger for violence, the position of the
empowered and the attitude of perversity, to say the least, are
bound to shock the collective conscience which knows not what
to do. It is manifest that the wanton lust, the servility to absolutely
unchained carnal desire and slavery to the loathsome bestiality of
passion ruled the mindset of the appellants to commit a crime
G which can summon with immediacy a “tsunami” of shock in the
mind of the collective and destroy the civilised marrows of the
milieu in entirety.”
xxx xxxxxx
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1049
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
“512. We are here concerned with the award of an appropriate A
sentence in case of brutal gang rape and murder of a young lady,
involving most gruesome and 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
B
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 C
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
D
grievous injuries.
513. If we look at the aggravating circumstances in the present
case, following factors would emerge:
(i) Diabolic nature of the crime and the manner of committing
crime, as reflected in committing gang rape with the victim; forcing E
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 trying to run the bus over F
them.
(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 G
punished. More so, it reflects that there is no scope of reform.
(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. H
1050 SUPREME COURT REPORTS [2019] 18 S.C.R.
A (iv) The acts committed so shook the conscience of the society.
514. 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
B 23-3-2017, following mitigating circumstances:
(a) Family circumstances such as poverty and rural background,
(b) Young age,
(c) Current family situation including age of parents, ill-health of
C family members and their responsibilities towards their parents
and other family members,
(d) Absence of criminal antecedents,
(e) Conduct in jail, and
(f) Likelihood of reformation.
D
In his affidavit, accused Mukesh reiterated his innocence and only
pleaded that he is falsely implicated in the case.
515. In PurushottamDashrath Borate v. State of Maharashtra
[PurushottamDashrath Borate v. State of Maharashtra, (2015) 6
E SCC 652 : (2015) 3 SCC (Cri) 326] , 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
F persons.
516. 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
G shake the confidence of public in the administration of criminal-
justice system. As held in Om Prakash v. State of Haryana [Om
Prakash v. State of Haryana, (1999) 3 SCC 19 : 1999 SCC (Cri)
334] , the Court must respond to the cry of the society and to
settle what would be a deterrent punishment for what was an
H apparently abominable crime.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1051
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
517. Bearing in mind the above principles governing the sentencing A
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
B
reflects public abhorrence of the crime. Crimes like the 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 post-crime good
conduct of the accused, the statement of the accused as to their
background and family circumstances, age, absence of criminal C
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.
D
518. 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 E
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, F
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”. 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 G
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.” H
1052 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 22. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC
415, this Court affirmed the death sentence of the accused in which the
accused had killed six innocent persons, out of which two were minors,
by kidnapping three persons, drugging them with sleeping tablets, and
then pushing them into a canal. Thereafter, three other members of the
same family were done away with. This Court upheld the award of
B
capital punishment as follows:-
“14. Now, so far as the capital punishment imposed by the learned
Sessions Court and confirmed by the High Court is concerned, at
the outset, it is required to be noted that, as such, the learned
counsel appearing on behalf of the accused is not in a position to
C point out any mitigating circumstance which warrants commutation
of death sentence to the life imprisonment. In the present case,
the accused has killed six innocent persons, out of which two
were minors — below 10 years of age. Almost, all the family
members of PW 5 were done to death in a diabolical and dastardly
D manner. Fortunately, or unfortunately, only one person of the family
of PW 5 could survive. In the present case, the accused has killed
six innocent persons in a pre-planned manner. The convict
meticulously planned the time. He first kidnapped three persons
by way of deception and took them to the canal and after drugging
them with sleeping tablets, pushed them in the canal at midnight
E to ensure that the crime is not detected. That, thereafter he killed
another three persons in the second stage/instalment. Therefore,
considering the law laid down by this Court in Mukesh v. State
(NCT of Delhi)[Mukesh v. State (NCT of Delhi), (2017) 6 SCC
1 : (2017) 2 SCC (Cri) 673], the case would fall in the category of
F the “rarest of rare case” warranting death sentence/capital
punishment. The aggravating circumstances are in favour of the
prosecution and against the accused. Therefore, striking a balance
between the aggravating and mitigating circumstances, we are of
the opinion that the aggravating circumstance would tilt the balance
in favour of capital punishment. In the facts and circumstances of
G the case, we are of the opinion that there is no alternative
punishment suitable, except the death sentence. The crime is
committed with extremist brutality and the collective conscience
of the society would be shocked. Therefore, we are of the opinion
that the capital punishment/death sentence imposed by the learned
H Sessions Court and confirmed by the High Court does not warrant
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1053
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
any interference by this Court. Therefore, we confirm the death A
sentence of the accused imposed by the learned Sessions Court
and confirmed by the High Court while convicting the appellant
for the offence punishable under Section 302 IPC.”
The present case consists of a crime even more shocking than
that in Khushwinder’s case (supra), in as much as a young 10 year old B
girl has first been horribly gangraped after which she and her brother
aged 7 years were done away with while they were conscious by
throwing them into a canal which caused their death by drowning.
23. Just as this judgment is being dictated, we notice that a
significant amendment has been made to The Protection of Children C
from Sexual Offences Act, 2012, vide “The Protection of Children from
Sexual Offences (Amendment) Bill, 2019” (hereinafter, “Amendment”)
which was passed on 24.07.2019 by the Rajya Sabha. In the original
Act, aggravated penetrative sexual assault is defined in Section 5 as
follows:-
D
“5. Aggravated penetrative sexual assault.-
g. whoever commits gang penetrative sexual assault on a child.
Explanation.- When a child is subjected to sexual assault by one
or more persons of a group in furtherance of their common
intention, each of such persons shall be deemed to have committed E
gang penetrative sexual assault within the meaning of this clause
and each of such person shall be liable for that act in the same
manner as if it were done by him alone;”
“l.whoever commits penetrative sexual assault on the child more
than once or repeatedly; F
m.whoever commits penetrative sexual assault on a child below
twelve years;”
xxx….xxxx…xxx
“r.whoever commits penetrative sexual assault on a child and G
attempts to murder the child;”
Originally, the punishment for aggravated penetrative sexual assault
was as follows:-
“6. Punishment for aggravated penetrative sexual assault.-
H
1054 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Whoever, commits aggravated penetrative sexual assault, shall
be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may extend to imprisonment
for life and shall also be liable to fine.”
Post the Amendment, Section 6 has been substituted as follows:-
B “6. (1) Whoever commits aggravated penetrative sexual assault
shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of natural life of that person, and shall also be liable to
C fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses
and rehabilitation of such victim.”
It will be noticed that the minimum sentence has gone up from 10
D years to 20 years, and imprisonment for life has now been expressly
stated to be imprisonment for the remainder of the natural life of the
person. What is more significant is that the death penalty has also been
introduced.
24. On the facts of the present case there is no doubt that
E aggravated penetrative sexual assault was committed on the 10 year old
girl by more than one person. The 10 year old girl child (who was below
12 years of age)would fall within Section 5 (m) of the POCSO Act.
There can be no doubt that today’s judgment is in keeping with the
legislature’s realisation that such crimes are on the rise and must be
F dealt with severely. In fact, the Statement of Objects and Reasons of
the Amendment are important and state as follows:-
“3. However, in the recent past incidences of child sexual abuse
cases demonstrating the inhumane mind-set of the abusers, who
have been barbaric in their approach towards young victims, is
rising in the country. Children are becoming easy prey because of
G
their tender age, physical vulnerabilities and inexperience of life
and society. The unequal balance of power leading to the gruesome
act may also detriment the mind of the child to believe that might
is right and reported studies establish that children who have been
victims of sexual violence in their childhood become more abusive
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1055
HALL POLICE STATION, COIMBATORE [R. F. NARIMAN, J.]
later in their life. The report of the National Crime Records Bureau A
for the year 2016 indicate increase in the number of cases
registered under the said Act from 44.7 per cent. in 2013 over
2012 and 178.6 per cent. in 2014 over 2013 and no decline in the
number of cases thereafter.
4. The Supreme Court, in the matter of Machhi Singh vs. State of B
Punjab [1983 (3) SCC 470], held that 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 C
centre to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death penalty.
The same analogy has been reiterated by the Supreme Court in
the matter of Devender Pal Singh vs. State (NCT of Delhi)[AIR
2002 SC 1661] wherein it was held that when the collective D
conscience of the community is so shocked, the court must award
death sentence.
5. In the above backdrop, as there is a strong need to take stringent
measures to deter the rising trend of child sex abuse in the country,
the proposed amendments to the said Act make provisions for E
enhancement of punishments for various offences so as to deter
the perpetrators and ensure safety, security and dignified childhood
for a child. It also empowers the Central Government to make
rules for the manner of deleting or destroying or reporting about
pornographic material in any form involving a child to the designated
authority” F
25. In the circumstances, we have no doubt that the trial court
and High Court have correctly applied and balanced aggravating
circumstances with mitigating circumstances to find that the crime
committed was cold blooded and involves the rape of a minor girl and
murder of two children in the most heinous fashion possible. No remorse G
has been shown by the Appellant at all and given the nature of the crime
as stated in paragraph 84 of the High Court’s judgment it is unlikely that
the Appellant, if set free, would not be capable of committing such a
crime yet again. The fact that the Appellant made a confessional
statement would not, on the facts of this case, mean that he showed H
1056 SUPREME COURT REPORTS [2019] 18 S.C.R.
A remorse for committing such a heinous crime. He did not stand by this
confessional statement, but falsely retracted only those parts of the
statement which implicated him of both the rape of the young girl and
the murder of both her and her little brother. Consequently, we confirm
the death sentence and dismiss the appeals.
B
SANJIV KHANNA, J.
1. There is so much in the comprehensive judgment of my
esteemed brother Justice Rohinton Fali Nariman, with which I entirely
agree. I would uphold the appellant’s conviction under Sections 302, 376
C (2) (f) and (g) and 201 of the Indian Penal Code,1898 (“IPC” for short).
However, for reasons stated below, I do not think this is a case wherein
the appellant should be given death penalty and would commute it to
imprisonment for life i.e. till his natural life with a stipulation that the
appellant would not be entitled to remission under Sections 432 and 433
D of the Code of Criminal Procedure, 1973 (“Cr.P.C” for short).
2. In Bachan Singh v. State of Punjab1, this Court, while upholding
constitutionality of death penalty for murder under Section 302 of the
IPC and the procedure for sentencing laid down in Section 354(3) of the
Cr.P.C., had held:
E “209…A real and abiding concern for the dignity of human
life postulates resistance to taking a life throughlaw’s
instrumentality. That ought not to be done in the rarest of rare
cases when the alternative option is unquestionably foreclosed.”
Thus, Bachan Singh (supra), while acceptingvalidity of the death
F penalty, had settled as a ratio that imprisonment for life is the normal and
preferred punishment for the offences under Section 302 of the IPC,
and that death penalty, which deprives the accused of his life, is an
exception to be imposed only in the ‘rarest of rare’ cases, when the
first option of imposing imprisonment for life is foreclosed and for which
special reasons must be recorded.
G
3. Recognising that the legislative policy underlying the provisions
of Sections 302 IPC and 354 (3)Cr.P.C. requires exercise of the court’s
discretion on the award of punishment, Bachan Singh (supra) had laid
down that a balance sheet of aggravating and mitigating circumstances
1
(1980) 2 SCC 684
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1057
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
has to be drawn up and in doing so the mitigating circumstances have to A
be accorded full weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances for the judicial discretion
to be exercised. The expression ‘special reasons’ in the context, it was
observed, means ‘exceptional reasons’ founded onexceptionally grave
circumstances of the particular case relating to the crime and the criminal.
B
4. On the aspect of mitigating circumstances in general and on
the factual matrix of the case, in Bachan Singh (supra) it was observed:
“206. Dr.Chitaley has suggested these mitigating factors:
Mitigating circumstances: - In the exercise of its discretion in the
above cases, the court shall take into account the following C
circumstances:
(1) That the offence was committed under the influence of extreme
mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he D
shall not be sentenced to death.
(3) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. E
The State shall by evidence prove that the accused does not satisfy
the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.
F
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to
appreciate the criminality of his conduct.” G
Bachan Singh (supra) in the aforesaid paragraphhighlights the
aspect of probability of reform and rehabilitation, and also probability
that the accused would not commit criminal acts as to constitute a
continuing threat to society and that the State must by evidence adduced
establish that conditions 3 and 4 are not satisfied.
H
1058 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 5. In Machhi Singh v. State of Punjab2, this Court elucidated
that from the tussle between the protagonists of “an eye for an eye”
philosophy who demand “death for death” on one hand and the
“humanists” who press for “death in no case”, a synthesis had emerged
for imposing a death sentence only in the ‘rarest of rare’ cases. Judgment
referred to the collective conscience of the community which is so
B
shocked from the crime that had occurred that it will expect the holders
of judicial office to inflict death penalty irrespective of their personal
opinion on the desirability or otherwise of retaining death penalty. The
community it was observed may entertain these sentiments in the
following circumstances: -
C (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.
(2). When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin for money
D or reward or a 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 for betrayal of the motherland.
(3). When murder of a member of a Scheduled Caste or minority
community, etc. is committed not for personal reasons but in
E 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.
(4). When the crime is enormous in proportion. For instance, when
F 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.
(5). When the victim of murder is an innocent child, or a helpless
woman or an old or infirm person or a person vis-à-vis whom the murderer
G is in a dominating position or a public figure generally loved and respected
by the community.
If upon taking an overall global view of all the circumstances in
the light of the aforesaid propositions and taking into account the answers
2
H (1983) 3 SCC 470
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1059
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
to the questions posed by way of the test for the ‘rarest of rare’ cases, A
the circumstances of the case are such that death sentence is warranted,
the court would proceed to doso.
6. Machhi Singh (supra) analysing the principles in Bachan Singh
(supra) observed that they postulate a twin question test which is required
to be answered by the Court when they exercise discretion to determine B
the ‘rarest of rare’ cases. The questions that must be put and answered
are:
(a) Whether there was something uncommon about the crime,
which renders the sentence of imprisonment for life inadequate
and calls for death sentence? C
(b) Whether there were other circumstances concerning the crime,
i.e. aggravating circumstances, because of which there is no
alternative but to impose the death sentence after having accorded
maximum weightage to all mitigating circumstances which speak
in favour of the offender? D
7. The circumstances elucidated in Machhi Singh (supra), if
carefully analysed, relate to the first question to be posed and answered.
But this is not the only question that the court must answer, for the
second question has to be also answered in order to direct or uphold the
death penalty. Second question can be answered with reference to the E
grounds quoted from Bachan Singh (supra) in paragraph 3 above. These
grounds relating to mitigating factors are however not exhaustive.
8. In Rajesh Kumar v. State through the Government of NCT
of Delhi3, this Court had traced outcase lawsfor evaluation of the
sentencing structure with reference to the aggravating and mitigating F
circumstances in the Indian context. Elucidating that the question of
sentence is not to be determinedonly with reference to the volume, nature
orcharacter of the evidence produced by the prosecution in order to
secure a conviction, but also with regard to the factsof a particular case
and the existence ofextenuating circumstances that can mitigate the
enormity of the crime,reference wasmade to VadiveluThevar and Anr. G
v. State of Madras4, a judgment delivered in 1955 under the Code of
Criminal Procedure, 1898. Volume and character of the evidence would
refer to the first question, while the extenuating circumstancesin current
3
(2011) 13 SCC 706
4
AIR 1957 SC 614 H
1060 SUPREME COURT REPORTS [2019] 18 S.C.R.
A trendsin penology and sentencing procedures would refer to the second
question. It is also obvious that not only the statutory provisions have
undergone a substantive change, there has been an evolution inthe law
of sentencing and the judicial interpretation on the principles applicable
for award of the death penalty. Rajesh Kumar (supra) clearly rejects
the theory that while inflicting the punishment of death penalty, only the
B
nature andgravity of the crime to the exclusion of the characteristics of
the criminalaregermane for consideration and imposition of anappropriate
punishment.Thus, while awarding the sentence, the Court should not
confine its consideration “principally or merely” to the circumstances of
a particular crime, but also give due consideration and regard to the
C circumstances and attributes of the criminal. An earlier judgment of this
Court in Ravjialias Ram Chandra v. State of Rajasthan5, which was
followed by at least six other decisions of this Court, holding that it is the
nature of the crime but not the criminal that are germane for consideration
of appropriate punishment was commented upon and held to be per
incurium. Referring to the mitigating circumstances and the aggravating
D
circumstances, the Court held that the brutality and cruelty in the manner
of committing a crime and the subsequent conduct of the criminal may
be a relevant factor, but is not the sole criteria for awarding death sentence
and must not seminally influence the court. Alluding to the mitigating
circumstances stated in‘3 and 4’of‘paragraph 206’ of the judgment in
E Bachan Singh (supra) quoted above, on the probability of the accused
being reformed and rehabilitated and of not committing criminal acts of
violence so as to constitute a continuing threat to the society, were held,
must be given due weightage in determining the appropriate sentence.
There should be some disapprobatory evidence and material to show
that the accused isincapable of being reformed or rehabilitated in the
F
society. The dictum was expressed in the following words:
“74. It is clear from the aforesaid finding of the High Court that
there is no evidence to show that the accused is incapable of
being reformed or rehabilitated in society and the High Court has
considered the same as a neutral circumstance. In our view the
G High Court was clearly in error. The very fact that the accused
can be rehabilitated in society and is capable of being reformed,
since the State has not given any evidence to the contrary, is
certainly a mitigating circumstance and which the High Court has
5
H (1996) 2 SCC 175
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1061
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
failed to take into consideration. The High Court has also failed to A
take into consideration that the appellant is not a continuing threat
to society in the absence of any evidence to the contrary. Therefore,
in paragraph 78 of the impugned judgment, the High Court, with
respect, has taken a very narrow and a myopic view of the
mitigating circumstances about the appellant. The High Court has
B
only considered that the appellant is a first-time offender and he
has a family to look after. We are, therefore, constrained to observe
that the High Court’s view of mitigating circumstance has been
very truncated and narrow in so far as the appellant is concerned.”
9. In an earlier decision in Santosh Kumar Satish bhushan
Bariyar v. State of Maharashtra6, it was observed that the ‘rarest of C
rare’ dictum breathes life into the ‘special reasons’ which are mandated
to be recorded under Section 354(3) of the Cr.P.C. In this regard, referring
to Bachan Singh (supra), the Court had emphasised the aforesaid
principles reston a real and abiding concern for the dignity of human
lifewhich postulates resistance to the taking away of a life through the D
instrumentality of laws, and that death ought not to be awarded save in
the ‘rarest of rare’ cases and when the alternative option is
incontrovertibly foreclosed.
10. The expression ‘rarest of rare’ literally means rarest even in
the rare,i.e. a rarest case of an extreme nature. The expression and the E
choice of words, means thatpunishment by death is an extremely narrow
and confined rare exception.The normal,if not an unexceptional rule,is
punishment for life, which rulecanbe trimmed and upended only when
the award of sentence for life is unquestionably foreclosed.Thus, capital
punishment is awarded and invoked only if the facts and material produced
by the prosecution disdainfully and fully establish that the option of F
imprisonment for life will not besuffice andis wholly disproportionate
and therefore the case belongs to the ‘rarest of rare’ category.
11. On the question of deterrent effect of punishment, in Santosh
Kumar (supra) reference was made to Swamy Shraddananda @
Murali Manohar Mishra v. State of Karnataka 7 (Swamy G
Shraddananda-I) and some other studies to observe that:
6
(2009) 6 SCC 498
7
(2007) 12 SCC 288 H
1062 SUPREME COURT REPORTS [2019] 18 S.C.R.
A “164. The issue of deterrence has also been discussed in the
judgment of Swamy Shraddananda - I (supra), thus:
“68. It is noteworthy to mention here the Law Commission in its
Report of 1967 took the view that capital punishment acted as a
deterrent to crime. While it conceded that statistics did not prove
B these so-called deterrent effects, it also said that figures did not
disprove them either.”
Most research on this issue shows that the relationship between
deterrence and severity of punishment is complicated. It is not
obvious how deterrence relates to severity and certainty.
C Furthermore criminal policy must be evidence-led rather than
based on intuitions, which research around the world has shown
too often to be wrong. In the absence of any significant empirical
attention to this question by Indian criminologists, we cannot
assume that severity of punishment correlates to deterrence to an
extent which justifies the restriction of the most fundamental
D human right through the imposition of the death penalty. The goal
of crime reduction can be achieved by better police and prosecution
service to the same or at least to a great extent than by the
imposition of the death penalty.”
It was also observed that:
E
“72. We must also point out, in this context, that there is no
consensus in the Court on the use of “social necessity” as a sole
justification in death punishment matters. The test which emanates
from Bachan Singh (supra) in clear terms is that the courts must
engage in an analysis of aggravating and mitigating circumstances
F with an open mind, relating both to crime and the criminal,
irrespective of the gravity or nature of crime under consideration.
A dispassionate analysis, on the aforementioned counts, is a must.
The courts while adjudging on life and death must ensure that
rigor and fairness are given primacy over sentiments and
G emotions.”
12. In Santosh Kumar (supra) reference was made to Panchhi
and others v. State of Uttar Pradesh 8 and Vashram Narshibhai
Rajpara v. State of Gujarat9 to state that the brutality of the manner in
8
(1998) 7 SCC 177
9
H (2002) 9 SCC 168
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1063
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
which the crime was committed may not be the sole ground for judging A
whether the case is one of the ‘rarest of rare’. Every murder is
perceived brutal and for murder to be treated as the ‘rarest of rare’
case, additional factors required to be considered are the mitigating and
aggravating circumstances featuring aroundthe murder, which would
include the intensity of bitterness that had prevailed and the escalation
B
of simmering thoughts into a thirst for revenge or retaliation. Reference
was made to Om Prakash v. State of Haryana10, to hold:
“76. In Om Prakash v. State of Haryana, K.T. Thomas, J.
deliberated on the apparent tension between responding to “cry
of the society” and meeting the Bachan Singhdictum of balancing
the “mitigating and aggravating circumstances”. The court was C
of the view that the sentencing court is bound by Bachan Singh
and not in specific terms to the incoherent and fluid responses of
society:
7. It is true that court must respond to the cry of the society and to
settle what would be a deterrent punishment for an abominable D
crime. It is equally true that a large number of criminals go
unpunished thereby increasing criminals in the society and law
losing its deterrent effect. It is also a truism as observed in the
case of State of M.P. v. Shyamsunder Trivedi that the exaggerated
adherence to and insistence upon the establishment of proof E
beyond every reasonable doubt, by the prosecution, ignoring the
ground realities, the fact situation and the peculiar circumstances
of a given case often results in miscarriage of justice and makes
the justice delivery system a suspect; in the ultimate analysis, the
society suffers and a criminal gets encouraged. Sometimes it is
stated that only rights of the criminals are kept in mind, the victims F
are forgotten. Despite this it should be kept in mind that while
imposing the rarest of rare punishment, i.e., death penalty, the
court must balance the mitigating and aggravating circumstances
of the crime and it would depend upon particular and peculiar
facts and circumstances of each case.” G
13. Constitutional Benchin Union of India v. V. Sriharan alias
Murugan and Others11 had examined several questions/issues. On
interpreting Sections 53 and 45 IPC it was held that the imprisonment of
10
(1999) 3 SCC 19
11
(2016) 7 SCC 191 H
1064 SUPREME COURT REPORTS [2019] 18 S.C.R.
A life means imprisonment till the end of life of the convict. However,
appropriate government in exercise of power under Sections 432 and
433 Cr.P.C. can grant remission in the form of commutation. Life convict
can be also validly granted remission etc. by the President and the
Governor of the State as provided under Articles 72 and 161 of the
Constitution.The majority judgment authored by Mohd. Ibrahim
B
Kalifulla, J. answered in affirmative the question “whether a special
category of sentence can be considered in substitute to death penalty
for imposing sentence for life, i.e. ‘entirety of life’,” which can be the
full life term or a specified term exceeding 14 years without remission
under Sections 432 and 433 Cr.P.C., observing that the earlier decision
C in Swamy Shraddananda (2) v. State of Karnataka 12 [Swamy
Shraddananda (2)], accepting the said view was a well thought out
one. The majority in V. Sriharan (supra) observed:
“68. If one were to judge the case of the said appellant in
the above background of details from the standpoint of the victim’s
D side, it can be said without any hesitation that one would have
unhesitatingly imposed the death sentence. That may be called as
the human reaction of anyone who is affected by the conduct of
the convict of such a ghastly crime. That may even be called as
the reaction or reflection in the common man’s point of view. But
in an organised society where the Rule of Law prevails, for every
E conduct of a human being, right or wrong, there is a well-set
methodology followed based on time tested, well-thought out
principles of law either to reward or punish anyone, which were
crystallised from time immemorial by taking into account very
many factors, such as the person concerned, his or her past
F conduct, the background in which one was brought up, the
educational and knowledge base, the surroundings in which one
was brought up, the societal background, the wherewithal, the
circumstances that prevailed at the time when any act was
committed or carried out whether there was any pre-plan
prevalent, whether it was an individual action or personal action
G or happened at the instance of anybody else or such action
happened to occur unknowingly, so on so forth. It is for this reason,
we find that the criminal law jurisprudence was developed by
setting forth very many ingredients while describing the various
H 12
(2008) 13 SCC 767
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1065
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
crimes, and by providing different kinds of punishment and even A
relating to such punishment different degrees, in order to ensure
that the crimes alleged are befitting the nature and extent of
commission of such crimes and the punishments to be imposed
meets with the requirement or the gravity of the crime committed.
69. Keeping the above perception of the Rule of Law and B
the settled principle of criminal law jurisprudence, this Court
expressed its concern as to in what manner even while let loose
of the said appellant of the capital punishment of death also felt
that any scope of the appellant being let out after 14 years of
imprisonment by applying the concept of remission being granted
would not meet the ends of justice. With that view, this Court C
expressed its well-thought out reasoning for adopting a course
whereby such heartless, hardened, money-minded, lecherous, paid
assassins though are not meted out with the death penalty are in
any case allowed to live their life but at the same time the common
man and the vulnerable lot are protected from their evil designs D
and treacherous behaviour.…”
14. Judgment in Santosh Kumar (supra) under the heading ‘Equal
Protection Clause’ refers to Swamy Shraddananda (2)(supra) in which
the Court had noted and recorded with extraordinary candour the
“arbitrariness prevailing in the capital sentencing process” in the following E
words:
“48. ....Coupled with the deficiency of the criminal justice
system is the lack of consistency in the sentencing process even
by this Court. It is noted above that Bachan Singh laid down the
principle of the rarest of rare cases. Machhi Singh, for practical F
application crystallised the principle into five definite categories
of cases of murder and in doing so also considerably enlarged the
scope for imposing death penalty. But the unfortunate reality is
that in later decisions neither the rarest of rare cases principle nor
the Machhi Singh categories were followed uniformly and
consistently. G
In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230
: (2008) 2 SCC (Cri) 264 : (2006) 13 Scale 467] Sinha, J. gave
some very good illustrations from a number of recent decisions in
which on similar facts this Court took contrary views on giving
death penalty to the convict (see SCC pp. 279-87, paras 151-78 : H
1066 SUPREME COURT REPORTS [2019] 18 S.C.R.
A Scale pp. 504-10, paras 154-82). He finally observed (SCC para
158) that “courts in the matter of sentencing act differently although
the fact situation may appear to be somewhat similar” and further
“it is evident that different Benches had taken different view in
the matter” (SCC para 168). Katju, J. in his order passed in this
appeal said that he did not agree with the decision in Aloke Nath
B
Dutta [(2007) 12 SCC 230 : (2008) 2 SCC (Cri) 264 : (2006) 13
Scale 467] in that it held that death sentence was not to be awarded
in a case of circumstantial evidence. Katju, J. may be right that
there cannot be an absolute rule excluding death sentence in all
cases of circumstantial evidence (though in Aloke Nath Dutta
C [(2007) 12 SCC 230 : (2008) 2 SCC (Cri) 264 : (2006) 13 Scale
467] it is said “normally” and not as an absolute rule). But there is
no denying the illustrations cited by Sinha, J. which are a matter
of fact.
50. The same point is made in far greater detail in a report
D called “Lethal Lottery, The Death Penalty in India” compiled
jointly by Amnesty International India and People’s Union for Civil
Liberties, Tamil Nadu & Puducherry. The report is based on the
study of the Supreme Court judgments in death penalty cases
from 1950 to 2006. One of the main points made in the report
(see Chapters 2 to 4) is about the Court’s lack of uniformity and
E consistency in awarding death sentence.
51. The truth of the matter is that the question of death
penalty is not free from the subjective element and the confirmation
of death sentence or its commutation by this Court depends a
good deal on the personal predilection of the judges constituting
F the bench.
52. The inability of the Criminal Justice System to deal with
all major crimes equally effectively and the want of uniformity in
the sentencing process by the Court lead to a marked imbalance
in the end results. On the one hand there appears a small band of
G cases in which the murder convict is sent to the gallows on
confirmation of his death penalty by this Court and on the other
hand there is a much wider area of cases in which the offender
committing murder of a similar or a far more revolting kind is
spared his life due to lack of consistency by the Court in giving
H punishments or worse the offender is allowed to slip away
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1067
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
unpunished on account of the deficiencies in the Criminal Justice A
System. Thus the overall larger picture gets asymmetric and lop-
sided and presents a poor reflection of the system of criminal
administration of justice. This situation is matter of concern for
this Court and needs to be remedied.
53. These are some of the larger issues that make us feel B
reluctant in confirming the death sentence of the appellant.”
15. In V. Sriharan (supra), the majority judgment referring to the
above criticism, while fully endorsing the anguish, had observed that the
situation on the lack of uniformity and inconsistency in awarding death
sentence and its ill effectsis of serious concern. Thereafter it wasnoted C
that this Court in several cases had imposed imprisonment till life or for
a fixed term exceeding 14 years without remission as a middle pathwhere
life sentence means a person’s life span in incarceration, rather than get
nudged into endorsing the death penalty. The Court would notviolate the
law by giving the aforesaid direction by imposing life imprisonment with
the stipulation by restraint or limit to grant of remission by way of statutory D
executive action.
16. Thus, the majority judgment approved the ratio in Swamy
Shraddananda (2) (supra) that there can be special category of
sentence where the Court could specify that the life sentence would
exceed 14 years and would be beyond application for remission. Earlier E
judgment of this Court in Sangeet and Another v. State of Haryana13
that the Court cannot proscribe power of remission of the appropriate
Government by awarding sentences of 20-25 years, was over-ruled.
The majority, however clarified, that such directions in the judgment
would not in any manner restrict the right to claim remission, commutation, F
clemency etc. as provided under Article 72 and Article 161 of the
Constitution.
17. A three judges bench in their decision dated 14th February
2019 in Review Petition (Criminal) No. 308/2011 in Criminal Appeal No.
379/2009 in M.D. Mannan @ Abdul Mannan v. State of Bihar, while G
allowing the Review Petition, commuted the death sentence with the
direction that considering the heinous nature of the crime committed, the
petitioner therein must undergo imprisonment for life, that is till his natural
death and no remission of sentence would be granted. In Md. Mannan
13
(2013) 2 SCC 452 H
1068 SUPREME COURT REPORTS [2019] 18 S.C.R.
A (supra) after referring to several cases including Dagdu and Others v.
State of Maharashtra14 and Mohinder Singh v. State of Punjab15, on
the doctrine of ‘rarest of rare’ and its application, it was held:
“22. The doctrine of ‘rarest of rare’ confines two aspects and
when both the aspects are satisfied only then the death penalty
B can be imposed. Firstly, the case must clearly fall within the ambit
of ‘rarest of rare’ and secondly, when the alternative option is
unquestionably foreclosed. Bachan Singh suggested selection of
death punishment as the penalty of last resort when, alternative
punishment of life imprisonment will be futile and serves no
purpose.”
C
18. In Santosh Kumar (supra), reference was made to the
48thReport of the Law Commission and the importance of information
relating to the characteristics and socio-economic background of the
offender which should be collected and brought to the notice of the
Court.
D
19. In Mulla v. State of Uttar Pradesh16, it was held that the
socio-economic factors relating to the crime and the criminal should be
taken into consideration, in the following words:
“80. Another factor which unfortunately has been left out in much
E judicial decision-making in sentencing is the social-economic factors
leading to crime. We at no stage suggest that economic depravity
justify moral depravity, but we certainly recognize that in the real
world, such factors may lead a person to crime. The 48th Report
of the Law Commission also reflected this concern. Therefore,
we believe, socio-economic factors might not dilute guilt, but they
F may amount to mitigating factor i.e. the ability of the guilty to
reform. It may not be misplaced to note that a criminal who
commits crimes due to his economic backwardness is most likely
to reform. This Court on many previous occasions has held that
his ability to reform amounts to a mitigating factor in cases of
G death penalty.
81. In the present case, the convicts belong to an extremely poor
background. With lack of knowledge, on the background of the
14
(1977) 3 SCC 68
15
(2013) 3 SCC 294
H 16
(2010) 3 SCC 508
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1069
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
appellants, we may not be certain as to their past, but one thing A
which is clear to us is that they have committed these heinous
crimes for want of money. Though we are shocked by their deeds,
we find no reason why they cannot be reformed over a period of
time.”
The socio-economic characteristics of the criminal assume B
relevancy in light of administration of criminal justice and particularly of
capital punishment, with regard to which the Law Commission, in its
262nd Report, hadmade the following observations:
“7.1.6 Numerous committees reports as well as judgments of the
Supreme Court have recognized that the administration of criminal C
justice in the country is in deep crisis. Lack of resources, outdated
modes of investigation, over-stretched police force, ineffective
prosecution, and poor legal aid are some of the problems besetting
the system. Death penalty operates within this context and
therefore suffers from the same structural and systemic
impediments. The administration of capital punishment thus D
remains fallible and vulnerable to misapplication. The vagaries of
the system also operate disproportionately against the socially and
economically marginalized who may lack the resources to
effectively advocate their rights within an adversarial criminal
justice system.” E
20. When we come to the facts of the present case, one has to
but agree that the offence or the crime was brutal, ruthless and cruel as
two innocent children aged 7 to 10 lost their lives, and there is substantial
medical and other evidence to show that the young girl was mercilessly
sexually abused and raped by the appellant and Mohanakrishnan (since F
deceased). Thereafter the children were administered poison and thrown
into a canal to die. The pain and trauma suffered by the small children
who were not at fault and the agony of the parentsand grandmother are
immense, incalculable and would remain forever. The punishment must
be severe. Yet to award death penalty we must examine and answer the
second question, i.e. balance out the aggravating circumstances by giving G
weightage to the mitigating circumstances and decide whether
punishment of life imprisonment is foreclosed. Then and then alone the
case would fall under the ‘rarest of rare’ category. While doing so, we
should account for the majority dictum in V. Sriharan (supra) that where
life imprisonment is considered to be disproportionate or inadequate, then H
1070 SUPREME COURT REPORTS [2019] 18 S.C.R.
A the Court may direct sentence for life imprisonment, without any right to
remission i.e. imprisonment for the entire course of life with no recourse
to remission, subject to the power that may be exercised under Article
72 and 161 of the Constitution.
21. In Md. Mannan @ Abdul Mannan (supra) there is a detailed
B reference to case law on whether death penalty should be awarded in
cases where prosecution had succeeded in proving the guilt beyond a
reasonable doubt by leading circumstantial evidence. Reference was
made to the judgment of this Court in Ram Deo Prasad v. State of
Bihar17 which had made reference to earlier judgments in Santosh
Kumar (supra) and Ramesh and Others (supra) to observe that quality
C of evidence was also a relevant factor in considering the question of
death sentence. Judgment under challenge before us has quoted from
The Collector of Customs, Madras and Othersv. D. Bhoormall18 to
following effect: -
“30. ……. One of them is that the prosecution or the Department
D is not required to prove its case with mathematical precision to a
demonstrable degree; for, in all human affairs absolute certainty
is a myth, and-as Prof. Brett felicitously puts it “all exactness is a
fake”. El Dorado of absolute proof being unattainable, the law
accepts for it probability as a working substitute in this work-a-
E day world. The law does not require the prosecution to prove the
impossible. All that it requires is the establishment of such a degree
of probability that a prudent man may, on its basis, believe in the
existence of the fact in issue. Thus, legal proof is not necessarily
perfect proof; often it is nothing more than a prudent man’s estimate
as to the probabilities of the case.”
F
22. In the present case the principle applicable to cases based on
circumstantial evidence is not required to be examined and answered,
but I would like to make some comments on the evidence that should be
excluded. This would reveal the true importance and significance of the
voluntary confession made by the appellant.
G
23. On the factual matrix of the present case, the High Court had
discarded and did not rely upon the testimonies of Kamala Bai (PW-9),
17
(2013) 7 SCC 725
18
H (1974) 2 SCC 544
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1071
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
Vijayranganathan (PW-12), C. Manikandan (PW-13), Jayakumar (PW- A
14) and Afsal (PW-16) (I have some reservation on the High Court
disregarding and not taking into consideration the testimony of Kamala
Bai (PW-9), grandmother of the victims. However, for the purpose of
the present judgment I need not go into the said aspect as her deposition
would not directly implicate the appellant before us – Manoharan). We
B
have also not accepted R. Sounderrajan’s (PW-24) version that he had
seen Appellant-Manoharan and Mohanakrishnan (since deceased) with
the two children at about 3 p.m. on 29.10.2010. The testimony of
R. Sounderrajan (PW-24) to this extent as a chance witnessis debatable
and questionable. R. Sounderrajan (PW-24) also claims, and to this extent
we have no doubt, that R. Sounderrajan (PW-24) had seen a school bag C
floating in the nearby canal (and another bag in the vicinity) which he
took out and thereafter had handed over the bags to Chinnaswamy (PW-
22) who had then telephoned the school principal Anthony Raj
(PW-16). Anthony Raj (PW-16) had then informed Chinnaswamy
(PW-22) that the two children, to whom the school bags belonged, were
D
missing. R. Sounderrajan (PW-24) did not tell Chinnaswamy (PW-22)
and neither was Anthony Raj (PW-16) informed and told about the chance
meeting between R.Sounderrajan (PW-24) and Appellant-Manoharan
and Mohanakrishnan (since deceased) at about 3:00 p.m. on 29.10.2010
and the conversation amongst the three, in which the appellant and
Mohanakrishnan (since deceased) had stated that they were taking the E
children for a picnic to Gurumurthi Hill.
24. I have some reservation on whether the hair was found
attached or inside the pink underwear (Exhibit M.O-1) found in the van
by Saravanan (PW-43), Assistant Director of the Mobile Unit of the
Tamil Nadu Forensic Science Department. The Mahazar (Exhibit P-5) F
prepared by him and the Investigating Officer Kanagasabapathy (PW-
47) does not specifically state that the hair found was stuck on the
underwear. On the other hand, it refers to “hair gathered” as is apparent
from column 5 and 7 of the Mahazar (Exhibit P-5) which reads: -
“From whom was it seized G
Produced from the Maruti Van TN37 BF-2796 after search by
Forensic Science Expert, which car was used by Accused
Mohanakrishnan to kidnap Muskan and Rithik”
“Details of property seized
H
1072 SUPREME COURT REPORTS [2019] 18 S.C.R.
A With words SBT Kida Wear 75cms” printed pink Jatti with stains
and hair gathered and entrusted after keeping inside Angel Form
Brassieres card board box.”
25. However, in the report (Exhibit P-38) prepared by PW-43
which was then sent to the Investigating Officer (PW-47), for subsequent
B forensic examination, the underwear was found stuck with hair. Exhibit
P-38 records: -
“a) A Pink coloured panty printed letters “SBT Kids wear”
“75cms” with pale brownish starchy like stains with small hair
pieces on its inner surface was found beneath the back seat of
the vehicle was identified, collected. The place where the hair
C pieces were seen were marked and pasted with cellphone tape in
order to safety transport the vital cue materials for comprehensive
Forensic analysis.”
26. Radhika Balachandran (PW-48) Deputy Director, Regional
Forensic Science Laboratory, Coimbatore has deposed that 5 strands of
D hair were sent for forensic examination. However, only two strands of
hair were sent by PW-48 for DNA comparison to Lakshmi
Balasubramanian (PW-49), Deputy Director, DNA Division, Forensic
Science Department, Chennai. These two hairs strands, as per the DNA
report were of the Appellant-Manoharan.
E 27. Radhika Balachandran (PW-48) in her report (Exhibit-P48)
has opined that the hair strands were human pubic hair. However, in her
cross-examination before the High Court (this witness was not examined
in the trial court and the report was taken on record under Section 293
of the Cr.P.C.) in response to Court Question, PW-48 had stated:
“Court Question: What did you observe in the five strands of hair
F
found in item [8]?
A: They all were dark brown in colour, medullated four were with
shrunken root of which only two had thin layer of tissue and the
ends of the strands were found tapering.
Court Question: Can pubic hairs fall of with root during rubbing?
G
A: Pubic hairs can fall of on rubbing if they are in the stag being
shrunk and falling of naturally.
Court Question: Pubic hairs can also plucked with roots?
A: Yes.”
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1073
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
28. Modi’s Textbook of Medical Jurisprudence and Toxicology A
26th Edition at page 427 in table 13 has referred to characteristics of
human hair from various body parts. Pubic hair is between 1-5 cm often
curly and kinky, large by variation along length, round or frayed relatively
broad and irregular. Hair in the Axilla region is also 1-5 cm broad, round
and frayed and is often circular. Further scalp hair have tampered tips,
B
whereas pubic hair have round or frayed tips. As per PW-48, the ends
of the strands were found tampered.
29. I would accept the prosecution case that hair belonging to
Appellant-Manoharan was found in the van but the forensic report that
this was the pubic hair of the Appellant-Manoharan would be debatable.
It would be also debatable whether the hair was found stuck/attached C
on the underwear (M.O. -1) which belonged to the deceased girl. Inspite
of the aforesaid reservation, I have no hesitation in accepting that the
prosecution case has been proved beyond doubt and forthis would also
rely on the confessional statement made by the appellant before the
Magistrate under Section 164 Cr.P.C. The contention that the confession D
should not be relied upon has been rightly rejected. In the avowal recorded
on 20th November 2010, twenty days after the arrest of the appellant on
30th October 2010, the appellant was candid and forthcoming in accepting
his friendship with Mohanakrishnan (since deceased), and that the girl
was subjected to sexual assault and was raped by Mohanakrishnan (since
deceased) on the rear seat of the van by tying her hands. The appellant, E
realising that the boy would be unnerved and fret, had taken him away.
On return, the appellant too had sexually assaulted the helpless girl and
committed rape. Subsequently, he had bought milk from the bakery and
the two children were given milk mixed with the cow dung powder that
had poison. Concerned that they would be exposed and caught, the F
appellant and Mohanakrishnan (since deceased) had thrown the children
in the canal, where they got drowned and died.
30. Confession of an accused as to the offence made on oath
before the Magistrate under Section 164 Cr.P.C. is uncommon and ‘rare’.
Both the trial court and the High Court have referred to the confession, G
but have not considered its implication and effect on the question of
punishment as a mitigating factor.
31. The trial court in its judgment, on the question of sentence,
has recorded as under:
H
1074 SUPREME COURT REPORTS [2019] 18 S.C.R.
A “With regard to question of sentence as it required section 235(2)
Cr.P.C the accused simply stated that nothing is to say about the
sentence to be awarded. Even after asking the accused repeatedly
by explaining that there is a possibility for awarding maximum
punishment prescribed in law unless the court convinced with
adequate reasons. Then also the accused did not respond.
B
However the learned counsel appearing for the accused advanced
her argument by stating how for the rulings relied by prosecution
is not applicable to the case on our hand and further invites this
court that the accused Manoharan is aged about 25 hears, having
aged parents and a family and he is the 1st offender prayed for
C leniency.”
The trial court also observed that, when the appellant was produced
before the court on 29th October, 2012 and had been told about the
charge proved against him and on being asked whether he had understood
the consequences, the appellant had stated that he had nothing to say.
D 32. Judgment in Md. Mannan @ Abdul Mannan (supra) highlights
the importance of Section 235(2) of Cr.P.C., which postulates that if the
accused is convicted, the court must proceed in accordance with the
provisions of Section 360 to hear the accused on the question of sentence
and then pass the sentence on the accused in accordance with law. This
E provision was earlier examined in Santa Singh v. State of Punjab19
wherein it was observed that hearing on the question of sentence should
not berendered an idle formality by confining the hearing merely to earlier
submissions without giving an opportunity to the parties, the State and
the accused, to produce material with regard to various factors on the
question of sentence.
F
33. In the present case, confession was not made at the behest of
the police/authorities or on inducement by the prosecution to enable the
prosecution to prove the case against the appellant. Rather, we have
already rejected the contention that the confession was extracted under
compulsion, inducement, threat or promise and therefore inadmissible.
G Confession by the appellant was given voluntarily and after due
deliberation on 20th November, 2010, as the appellant was given a day’s
time to think and ponder when he had appeared before the Magistrate
on 19th November, 2010.
19
H (1976) 4 SCC 190
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1075
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
34. Confession of guilt is an acceptance of one’s sin. Though A
psychologists are not clear as to how precisely guilt operates to produce
confession, one possibility is that it tends to cure self-hostility. Pangs of
conscience following the committal of an offence would normally have
a role to play when the person confesses, for if a person does not feel
the guilt, he would normally not confess to an act which is regarded as
B
evil. By confessing, as an act of penance, a person may seek and beg
for forgiveness. However, to make a confession can be a degrading and
humiliating experience, yet the psychoanalytic models suggest that this
is the first step back into society. (See ‘The Value of Confession and
Forgiveness’, Carl Jung).
35. In this case, it could be argued that the appellant was driven C
by the hope that an earlier admission of guilt may lead to a lighter sentence
and that was one of the factors that had prompted him to make the
confession. However, to confess to such acts of crime and misdeeds
before all and everyone, including the Magistrate could only mean that
the appellant had felt shame, remorse and alienation from the society. It D
is probable, among other reasons, that the appellant had confessed his
guiltin order to seek forgiveness. Otherwise, I do not see any cause for
him to appear before the Magistrate and on oath, disclose in detail
andaccept his direct involvement in the crime. In Bishnu Prasad Sinha
(supra), this Court referred to the confession made by the appellant
before the Judicial Magistrate and also before Sessions Judge in a E
statement under Section 313 Cr.P.C. and observed that this would show
repentance.
36. Confession of crime has been treated as a mitigating
circumstance by this Court in Gurdeep Singh alias Deep v. State (Delhi
Admn.) 20, a case under the Terrorist and Disruptive Activities F
(Prevention) Act, 1987 to observe: -
“25. Before concluding we would like to record our conscientious
feeling for the consideration by the legislature, if it deems fit and
proper. Punishment to an accused in criminal jurisprudence is not
merely to punish the wrongdoer but also to strike a warning to G
those who are in the same sphere of crime or to those intending to
join in such crime. This punishment is also to reform such
wrongdoers not to commit such offence in future. The long
procedure and the arduous journey of the prosecution to find the
20
(2000) 1 SCC 498 H
1076 SUPREME COURT REPORTS [2019] 18 S.C.R.
A whole truth is achieved sometimes by turning on the accused as
approvers. This is by giving incentive to an accused to speak the
truth without fear of conviction. Now turning to the confessional
statement, since it comes from the core of the heart through
repentance, where such accused is even ready to undertake the
consequential punishment under the law, it is this area which needs
B
some encouragement to such an accused through some respite
may be by reducing the period of punishment, such incentive would
transform more such incoming accused to confess and speak the
truth. This may help to transform an accused, to reach the truth
and bring to an end successfully the prosecution of the case.”
C The above paragraph was quoted in Mohd. Maqbool Tantray v.
State of Jammu and Kashmir 21, which too was a case under the
Terrorist and Disruptive Activities (Prevention) Act, 1987 wherein the
sentence was reduced from 14 years to the period already undergone
on consideration of the confession.
D 37. It is correct that the appellant after nearly two years had
written the letter dated 25th July 2012 to the Additional Sessions Judge to
be read as his statement under Section 313 Cr.P.C., retracting the last
part of his confession as to his involvement in sexual assault, rape and
throwing the children in the canal. This letter does, however, substantially
E reiterate and accept the first portion of the confession, including his
presence in the van, but states that the appellant had not raped the girl
and had remained standing. It was stated that thereafter the appellant
was dropped by Mohanakrishnan (since deceased) near a bridge, who
had driven off in the van with the children. Further, the appellant’s
statement under Section 164 Cr.P.C., as recorded by the Magistrate,
F was incorrect and the police had shown and played a video recording to
the Magistrate.
38. Appellant’s partial retraction has been rightly disbelieved for
good reasons, including the statement of the appellant under Section 313
Cr.P.C. in the Court accepting and admitting that his confession was
G recorded by the Magistrate. The retraction by itself, I would observe,
should not be treated as absence of remorse or repentance, albeit an
afterthought or on advice propelled by fear that the appellant in view of
his admission may face the gallows, and that the earlier confession made
seeking forgiveness would be the cause of his death. A thought of doubt
21
H (2010) 12 SCC 421
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1077
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
and attempt to retract had surfaced on account of belief that the sense A
of remorse, repentance and forgiveness would not be appreciated and
given due regard, cannot be ruled out. Benefit in this regard must go to
the appellant.
39. The other mitigating factors in favour of the appellant are his
young age,he was 23 years of age at the time of occurrence and he B
belongs to a poor family. He has aged parents and is a first-timeoffender
as recorded in the judgment/order of the trial court. Further, the appellant
Manoharan was not initially involved in the abduction and kidnapping of
the children. He was not the mastermind. Mohanakrishnan (since
deceased) had thought,conceived and had single-handedly executed the
plan to abduct the children. Appellant did join him thereafter and was C
with Mohanakrishnan (since deceased). Subsequently the devil in
Mohanakrishnan (since deceased) took over and he sexually assaulted
and raped the small girl, while the appellant kept quiet. Later the appellant
too sexually assaulted and committed rape. Thereupon, poison was
administered to the children before throwing them into the canal. The D
offence committed was heinous and deplorable.
40. I would, therefore, uphold and maintain conviction of the
appellant under Sections 302, 376(2)(f) and (g) and 201 IPC and the
sentences awarded under Sections 376(2)(f) and (g) and 201 IPC. To
this extent the appeal is dismissed. In view of the aforesaid discussion E
and on balancing aggravating and mitigating circumstances, in my opinion,
the present case does not fall under the category of ‘rarest of rare’
case i.e. there is no alternative but to impose death sentence. It would
fall within the special category of cases, where the appellant should be
directed to suffer sentence for life i.e. till his natural death, without
remission/commutation under Sections 432 and 433 Cr.P.C. To this extent F
I would allow the appeal.
Bibhuti Bhushan Bose Appeals disposed of.
G
H
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