Supreme Court of India
RABBU @ SARVESHversusTHE STATE OF MADHYA PRADESH
- Citation
- 2024 INSC 720
- Decided
- 12 September 2024
- Disposal
- Appeal(s) allowed
Holding
The Court upheld the conviction based on reliable dying declarations but commuted the death penalty to 20 years of rigorous imprisonment, finding the case not to be "rarest of rare".
Summary
The appellant, Rabbu @ Sarvesh, was convicted of rape, murder and related offences under Sections 450, 376(2)(i), 376D, 376A, 302 IPC and Section 5(g)/6 POCSO, receiving the death penalty for Sections 376A and 302. The defence argued that the three dying declarations were inconsistent and that DNA evidence suggested a third perpetrator, seeking to overturn the conviction and death sentence. The Supreme Court held that the dying declaration recorded by the Executive Magistrate, endorsed by a medical officer, was reliable, corroborated by oral statements and other evidence, and therefore upheld the conviction. While confirming the conviction, the Court examined whether the case qualified as "rarest of rare" for the death penalty, considering the appellant's young age, socio‑economic background, lack of prior criminal record and satisfactory prison conduct. Concluding that the death penalty was not justified, the Court commuted it to rigorous imprisonment for 20 years without remission. The appeals were allowed, with the conviction maintained and the death sentence reduced.
Issues considered
- The admissibility and reliability of the dying declarations as evidence of guilt.
- The significance of DNA evidence indicating a possible third perpetrator.
- Whether the offences constitute a "rarest of rare" case warranting the death penalty.
- The appropriateness of commuting the death penalty in view of mitigating factors.
Legislation cited
- Code of Criminal Procedure, 1973s. 164
- Indian Penal Code, 1860s. 302, s. 34, s. 376(2)(i), s. 376A, s. 376D, s. 450
- Protection of Children from Sexual Offences Act, 2012s. 5(g), s. 6
Subjects
Section 450 of IPCSection 376(2)(i) of IPCSection 376D of IPCSection 376A of IPCSection 5(g)/6 of POCSODying declarationsRarest of rare caseDeath PenaltySocio-economic stratum backwardRemission
Judgment
[2024] 10 S.C.R. 37 : 2024 INSC 720
Rabbu @ Sarvesh
v.
The State of Madhya Pradesh
(Criminal Appeal No(s). 449-450 of 2019)
12 September 2024
[B.R. Gavai,* Prashant Kumar Mishra and
K.V. Viswanathan, JJ.]
Issue for Consideration
The appellant was convicted for offences punishable u/ss. 450,
376(2)(i), 376D, 376A and 302 r/w. s.34 of IPC and s.5(g)/6
of the Protection of Children from Sexual Offences Act, 2012
(POCSO) awarding death penalty u/ss. 376A and 302 IPC and
life imprisonment u/s. 376D of the IPC and rigorous imprisonment
for 10 years u/s. 450 of the IPC.
Headnotes†
Penal Code, 1860 – ss.450, 376(2)(i), 376D, 376A and 302
r/w. s. 34 – Protection of Children from Sexual Offences Act,
2012 – s.5(g)/6 – Appellant contended that the instant case
rested on the three dying declarations and a DNA report – The
Dying declarations were inconsistent and DNA report pointed
presence of a third person – It was also contended that it was
not ‘rarest of the rare’ case:
Held: On perusal of the materials on record, it is found that the
dying declaration recorded by the Executive Magistrate (Naib
Tehsildar), PW-11, which was endorsed by PW-9- doctor is reliable
and trustworthy – The dying declaration recorded by PW-11 is in
question-answer form – In the said dying declaration, the deceased
clearly implicates the present appellant – The Medical Officer,
PW-9, before the commencement of the dying declaration has
given an endorsement regarding fit mental status of the deceased
to make a declaration and at the end of the dying declaration
again he has endorsed that the deceased was in a fit state of
mind – The written dying declaration is corroborated by the oral
dying declaration as has come on record in the evidence of her
grand-father (PW-1), her grand-father’s brother (PW-2), her aunt
(PW-13) and her uncle (PW-14) – In the said dying declaration, all
the witnesses have clearly stated that the deceased after coming
* Author
38 [2024] 10 S.C.R.
Digital Supreme Court Reports
out from the room in flames has narrated the incident about the
appellant committing the crime – The statement of the deceased
recorded u/s.164 of Cr.P.C. also supports the prosecution case –
There is no error in the conviction of the appellant – As far as
the question whether the present case falls under the category of
‘rarest of rare case’ is concerned, in the present case, it is to be
noted that the appellant comes from a socio-economic backward
stratum of the society – He lost his mother and brother at the
tender age – The appellant and his family members do not have
any criminal background – The appellant was of a tender age
of 22 years when the aforesaid incident occurred – It cannot be
said that the appellant is a hardened criminal, who cannot be
reformed – The possibility of the appellant, if given the chance of
being reformed, cannot be ruled out – In view of the matter, the
confirmation of the death penalty would not be justified – In facts
and circumstances of the case, the death penalty needs to be
commuted to fixed imprisonment without remission for a period
of 20 years. [Paras 7, 8, 15, 16, 18]
Case Law Cited
Shivu and Another v. Registrar General, High Court of Karnataka
and Another [2007] 2 SCR 555 : (2007) 4 SCC 713 : (2007)
INSC 136; Purushottam Dashrath Borate and Another v. State of
Maharashtra [2015] 5 SCR 1112 : (2015) 6 SCC 652 : (2015) INSC
392; Deepak Rai v. State of Bihar [2013] 14 SCR 297 : (2013)
10 SCC 421 : (2013) INSC 638; Swamy Shraddananda (2) alias
Murali Manohar Mishra v. State of Karnataka [2008] 11 SCR 93 :
(2008) 13 SCC 767 : (2008) INSC 853; Shankar Kisanrao Khade
v. State of Maharasthra [2013] 6 SCR 949 : (2013) 5 SCC 546 :
(2013) INSC 281; Gandi Doddabasappa alias Gandhi Basavaraj v.
State of Karnataka [2017] 2 SCR 62 : (2017) 5 SCC 415; Prakash
Dhawal Khairnar (Patil) v. State of Maharashtra [2001] Supp. 5
SCR 612 : (2002) 2 SCC 35 : 2001 INSC 606; Mohinder Singh
v. State of Punjab [2013] 3 SCR 90 : (2013) 3 SCC 294 : (2013)
INSC 61; Madan v. State of Uttar Pradesh [2023] 16 SCR 765 :
(2023) SCC OnLine SC 1473; Navas @ Mulanavas v. State of
Kerala [2024] 3 SCR 913 : (2024) SCC OnLine SC 315 : 2024
INSC 215 – referred to.
List of Acts
Penal Code, 1860; Protection of Children from Sexual Offences
Act, 2012.
[2024] 10 S.C.R. 39
Rabbu @ Sarvesh v. The State of Madhya Pradesh
List of Keywords
Section 450 of IPC; Section 376(2)(i) of IPC; Section 376D of IPC;
Section 376A of IPC; Section 5(g)/6 of POCSO; Dying declarations;
Rarest of rare case; Death Penalty; Socio-economic stratum
backward; Remission.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 449-
450 of 2019
From the Judgment and Order dated 17.01.2019 of the High Court
of M.P. Principal Seat at Jabalpur in CRLR No.12 of 2018 and CRLA
No. 6748 of 2018
Appearances for Parties
N. Hariharan, Sr. Adv., Ms. Shreya Rastogi, Bhavesh Seth, M.A.
Niyazi, Ms. Zehra Khan, Ms. Anauntta Shankar, Sharian Mukherji,
Ms. Sana Singh, Ms. Punya Rekha Angara, Advs. for the Appellant.
Bhupendra Pratap Singh, D.A.G., Ms. Mrinal Gopal Elker, Abhimanyu
Singh, Abhinav Shrivastava, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, J.
1. Heard Shri N. Hariharan, learned Senior Counsel for the appellant
and Shri Bhupendra Pratap Singh, learned Deputy Advocate General
appearing on behalf of the State of Madhya Pradesh.
2. These appeals arise out of the judgment and order dated 17.01.2019
passed by the Division Bench of the High Court of Madhya Pradesh
at Jabalpur, dismissing the appeal of the appellant and confirming the
judgment and order dated 20.08.2018 passed by the First Additional
Sessions Judge, Bina, District Sagar (hereinafter referred to as the
“Trial Judge”), thereby convicting the appellant for offences punishable
under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of
the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 5(g)/6
of the Protection of Children from Sexual Offences Act, 2012 (for
short, ‘POCSO’) awarding death penalty under Sections 376A and
302 IPC and life imprisonment under Section 376D of the IPC and
rigorous imprisonment for 10 years under Section 450 of the IPC.
40 [2024] 10 S.C.R.
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3. Shri Hariharan submits that the present case basically rests on the
three dying declarations and the DNA report. He submits that the
dying declarations are inconsistent. He further submits that as the
time progressed there were improvements in the dying declaration.
He therefore submits that in the present case the truthfulness of
the dying declarations itself is doubtful and therefore the conviction
could not be based on the said dying declarations. He further submits
that the DNA report also points out towards the presence of a third
person. In such an eventuality, the learned Senior Counsel submits
that the order of conviction could not be sustained.
4. Shri Hariharan, in the alternative, submits that the present case is
not a ‘rarest of the rare’ case, which would justify awarding death
penalty. He further submits that, in the present case, the order
convicting the appellant and imposing death penalty were done
simultaneously. He submits that the learned Trial Judge also does
not consider the balance between the mitigating circumstances and
aggravating circumstances while awarding the death penalty. Learned
Senior Counsel therefore submits that in the event this Court is not
inclined to interfere with the finding of the conviction, in the facts and
circumstances of this case and particularly taking into consideration
the fact that the appellant lost his mother and brother at a tender
age, the socio-economic background of the appellant and the age of
the appellant at the time of commission of crime so also his conduct
and behaviour in the prison entitle him for commutation of sentence.
5. Shri Bhupendra Pratap Singh, learned Deputy Advocate General
(DAG), on the contrary, submits that the learned Trial Judge as well
as the High Court, upon appreciation of the evidence, have correctly
come to a finding that the present appellant is guilty for the offences
committed. He therefore submits that no interference is warranted
in the present appeals.
6. Insofar as the prayer made by the learned Senior Counsel for the
appellant regarding commutation is concerned, the learned DAG
for the respondent-State relies on the following judgments of this
Court in the cases of Shivu and Another v. Registrar General,
High Court of Karnataka and Another,1 Purushottam Dashrath
1 [2007] 2 SCR 555 : (2007) 4 SCC 713 : 2007 INSC 136
[2024] 10 S.C.R. 41
Rabbu @ Sarvesh v. The State of Madhya Pradesh
Borate and Another v. State of Maharashtra,2 and Deepak Rai
v. State of Bihar,3 in order to contend that merely the age of the
appellant cannot be taken into consideration. He further submits
that the appellant taking advantage of the circumstances that the
deceased was alone in the house has committed the heinous crime
and therefore the present case would squarely fit in the category of
‘rarest of the rare’ cases. He submits that the psychological report
would also show that there is no remorse expressed by the appellant.
He therefore submits that taking into consideration all these aspects,
the death penalty needs to be confirmed.
7. We have perused the material on record and find that the dying
declaration recorded by the Executive Magistrate (Naib Tehsildar),
PW-11, which was endorsed by Dr. Avinash Saxena, PW-9 is reliable
and trustworthy. The dying declaration recorded by PW-11 is in
question-answer form. In the said dying declaration, the deceased
clearly implicates the present appellant. The Medical Officer, PW-9,
before the commencement of the dying declaration has given an
endorsement regarding fit mental status of the deceased to make
a declaration and at the end of the dying declaration again he has
endorsed that the deceased was in a fit state of mind. The written
dying declaration is corroborated by the oral dying declaration as
has come on record in the evidence of her grand-father Sohan Singh
(PW-1), her grand-father’s brother Mukund Singh (PW-2), her aunt
Preeti (PW-13) and her uncle Sandeep Singh Rajpoot (PW-14).
8. In the said dying declaration, all the witnesses have clearly stated
that the deceased after coming out from the room in flames has
narrated the incident about the appellant committing the crime. Not
only this, but DW-1-Golu Chaubey who was examined on behalf of
the defence has also clearly stated that when the deceased came
out of the house, she was shouting that the accused person(s)
had committed rape on her and set her on fire. The statement of
the deceased recorded under Section 164 of the Code of Criminal
Procedure, 1973 (for short, Cr.P.C.) by Smt. Suchita Srivastava,
Judicial Magistrate First Class, Sagar (PW-23) also supports the
2 [2015] 5 SCR 1112 : (2015) 6 SCC 652 : 2015 INSC 392
3 [2013] 14 SCR 297 : (2013) 10 SCC 421 : 2013 INSC 638
42 [2024] 10 S.C.R.
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prosecution case. The Dehat Nalishi (Ex. P/28) recorded by Sub
Inspector, Anjana Parmaar (PW-16) also narrates the same factual
position.
9. In that view of the matter, we do not find that there is any error in the
concurrent orders of the Trial Judge and the High Court convicting
the appellant for the offences punishable under Sections 450, 376(2)
(i), 376D, 376A and 302 read with 34 of the IPC and Section 5(g)/6
of the POCSO.
10. The question that now requires to be considered is as to whether
the present case would fall in the category of ‘rarest of rare case’ so
as to confirm the death penalty or the sentence could be commuted.
11. We have perused the psychological assessment of the present
appellant as conducted by the Department of Psychiatry, NSCB
Medical College, Jabalpur, Madhya Pradesh so also the report of the
Senior Probation and Welfare Officer, Central Jail, Bhopal, Madhya
Pradesh dated 12.06.2023 and the report of the Divisional Officer,
Western Division/Assistant Jail Superintendent, Central Jail Jabalpur
dated 10.06.2023.
12. In the said reports, it has been found that there is nothing against
the behaviour of the appellant herein in the prison. His conduct in the
prison has been found to be satisfactory. The reports further reveal
that though not allotted any work, the appellant is engaging himself
in plantation of trees, cleaning the temple and surrounding area.
13. While considering as to whether the death penalty needs to be
confirmed or not, we would be required to take into consideration
various factors.
14. It is not in dispute that the appellant lost his mother at the tender age
of 8 years and his elder brother at the age of 10 years. The appellant
was brought up by his father as a single parent. The appellant
has close family ties with his father, his sister, who is married and
his grand-mother. Though, Shri Singh is right that the age of the
appellant at the time of commission of crime solely cannot be taken
into consideration, however the age of the appellant/accused at the
time of commission of crime along with other factors can certainly
be taken into consideration as to whether the death penalty needs
to be commuted or not.
[2024] 10 S.C.R. 43
Rabbu @ Sarvesh v. The State of Madhya Pradesh
15. In the present case, it is to be noted that the appellant comes from
a socio-economic backward stratum of the society. As already
discussed hereinabove, he lost his mother and brother at the tender
age. The appellant and his family members do not have any criminal
background. The appellant was of a tender age of 22 years when
the aforesaid incident occurred.
16. It cannot be said that the appellant is a hardened criminal, who cannot
be reformed. The possibility of the appellant, if given the chance of
being reformed, cannot be ruled out.
17. In that view of the matter, we find that in the present case the
confirmation of death penalty would not be justified. However, at
the same time we also find that the ordinary sentence of life i.e.
14 years imprisonment with remission would not meet the ends of
justice. In our considered view, the present case would fall in the
middle path, as laid down by this Court in a catena of judgments,
which are as follows:-
i. Swamy Shraddananda (2) alias Murali Manohar Mishra v.
State of Karnataka; 4
ii. Shankar Kisanrao Khade v. State of Maharasthra; 5
iii. Gandi Doddabasappa alias Gandhi Basavaraj v. State of
Karnataka; 6
iv. Prakash Dhawal Khairnar (Patil) v. State of Maharashtra; 7
v. Mohinder Singh v. State of Punjab; 8
vi. Madan v. State of Uttar Pradesh; 9
vii. Navas @ Mulanavas v. State of Kerala10
18. We, therefore, find that in the facts and circumstances of the present
case, the death penalty needs to be commuted to fixed imprisonment
without remission for a period of 20 years.
4 [2008] 11 SCR 93 : (2008) 13 SCC 767 : 2008 INSC 853
5 [2013] 6 SCR 949 : (2013) 5 SCC 546 : 2013 INSC 281
6 [2017] 2 SCR 62 : (2017) 5 SCC 415
7 [2001] Supp. 5 SCR 612 : (2002) 2 SCC 35 : 2001 INSC 606
8 [2013] 3 SCR 90 : (2013) 3 SCC 294 : 2013 INSC 61
9 [2023] 16 SCR 765 : 2023 SCC OnLine SC 1473
10 [2024] 3 SCR 913 : 2024 SCC OnLine SC 315 : 2024 INSC 215
44 [2024] 10 S.C.R.
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19. The order of conviction is maintained however the death penalty
awarded under Sections 376A and 302 IPC is commuted to rigorous
imprisonment for 20 years.
20. The appeals are allowed to the extent indicated above.
21. Pending application(s), if any, shall stand disposed of.
Result of the Case: Appeals allowed.
†
Headnotes prepared by: Ankit Gyan
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