Supreme Court of India
RAJ KUMARversusSTATE OF M.P.
- Citation
- 2014 INSC 136
- Decided
- 25 February 2014
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
The Supreme Court affirmed the convictions and substituted the death sentence with life imprisonment, finding that the case did not qualify as "rarest of rare".
Summary
Raj Kumar, a 32‑year‑old who was a regular visitor to a neighbour's house, was asked to stay overnight while the parents irrigated fields. He raped the 14‑year‑old girl Gounjhi, caused grievous injuries and she died of asphyxia by strangulation. A 10‑year‑old brother witnessed the assault; DNA analysis linked the appellant's semen and hair to the victim. The trial court convicted him under IPC sections 302, 376 and 450 and imposed the death penalty, which the High Court affirmed. The Supreme Court upheld the conviction, held that the child’s testimony was reliable, that an adverse inference could be drawn from the appellant’s silence under Section 313 CrPC, and that the case did not meet the "rarest of rare" standard for death. Consequently, the death sentence was set aside and life imprisonment with a minimum of 35 years without remission was imposed.
Issues considered
- The admissibility and reliability of the child witness's testimony.
- Whether an adverse inference can be drawn under Section 313 CrPC when the accused remains silent.
- Whether the death penalty is warranted under the "rarest of rare" doctrine.
- Whether the convictions under Sections 302, 376 and 450 IPC stand.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 302, s. 376, s. 450
Subjects
rapemurderchild witnessdeath penaltyrarest of rare doctrineadverse inferenceSection 313 CrPCDNA evidencelife imprisonment
Judgment
[2014] 3 S.C.R. 212
A RAJ KUMAR
v.
STATE OF M.P.
(Criminal Appeal Nos. 1419-1420 of 2013)
FEBRUARY 25, 2014
B
[DR. 8.S. CHAUHAN AND M.Y. EQBAL, JJ.)
PENAL CODE, 1860: ss. 302, 376, 450 - Rape and
murder of 14 years old girl - Accused-appellant on visiting
c terms with the family of the victim-deceased, was asked to
sleep in their house on the fateful night by the parents of the
deceased as they had to irrigate fields at night and the
children would be alone - Appellant committed rape on the
deceased and then caused grievous injuries resulting in her
0 death - Conviction and death sentence by courts below -Held:
Courts below rightly drew adverse inference against appellant
- He did not take any defence or furnish any explanation as
to any of the incriminating material placed by the trial court -
He also did not deny his presence in the house on that night
E - When the children were left in the custody of the appellant,
he was bound to explain as to under what circumstances girl
died - Incident witnessed by brother of the deceased - Also,
no case of false implication was made out - In view of the
concurrent findings of fact recorded by courts below,
F particularly in respect of the DNA report to the extent that the
semen of appellant was found in the vagina swab of the
deceased and that she died of asphyxia caused by
strangulation, the findings of fact recorded by the courts below
affirmed - Order of conviction not interfered with.
G WITNESS: Child witness - Evidentiary value of - Held:
Every witness is competent to depose unless the court
considers that he is prevented from understanding the
question put to him, or from giving rational answers by reason
of tender age or extreme old age or disease or because of
H 212
RAJKUMAR v. STATE OF M.P. 213
his mental or physical condition - The evidence· of a child A
witness must be evaluated more carefully and with greater
circumspection because a child is susceptible to be swayed
by what others tell him - In the instant case, the eye-witness,
was a child aged 10 years at the time of incident - Courts
below found him worth reliance as he understood the B
questions put to him and he was able to answer the same -
No cogent reason to take a view contrary to the same.
SENTENCE/SENTENCING: Death sentence - Held:
The extreme penalty of death need not be inflicted except in c
gravest cases of extreme culpability - Before opting for the
death penalty the circumstances of the offender a/so require
to be taken into consideration alongwith the circumstances of
the crime for the reason that life imprisonment is the rule and
death sentence is an exception - The penalty of death
0
sentence may be warranted only in a case where the court
comes to the conclusion that imposition of life imprisonment
is totally inadequate having regard to the relevant
circumstances of the crime - In the instant case, appellant had
committed a heinous crime and raped an innocent, helpless
and defenceless minor girl who was in his custody - He is E
liable to be punished severely but it is not a case which falls
within the category of 'rarest of rare' cases - Hence, the death
sentence is set aside and life imprisonment is awarded - The
appellant to serve a minimum of 35 years in jail without
remission, before consideration of his case for pre-mature F
release.
The prosecution case was that on the fateful night,
the appellant aged 32 years was asked by the father of
the victim-deceased to stay at his house with his four G
children as he and his wife had to irrigate the land at
night. The appellant was on visiting terms with the family
and the children used to call him mama. On that night, the
appellant consumed liquor and asked the deceased aged
14 years to sleep else where and the appellant slept with H
214 SUPREME COURT REPORTS [2014] 3 S.C.R.
A her other siblings. Around midnight, he committed rape
on the deceased and then killed her by causing some
grievous injuries. The incident was witnessed by PW-2,
the brother of the deceased but out of fear he could not
raise his voice. He narrated the incident to his parents in
B the morning when they came back home. The case was
registered against the appellant under Sections 302, 376
and 450, IPC. The trial court convicted the appellant under
. the said offences and awarded death sentence. The High
Court affirmed the conviction and the death sentence.
c Hence the appeal.
Disposing of the appeal, the Court
HELD: 1. In view of the concurrent findings of fact
recorded by the courts below, particularly in respect of
D the DNA report to the extent that the semen of the
appellant was found in the vagina swab of the prosecutrix
and that she died of asphyxia caused by strangl!lation,
the findings of fact recorded by the courts below are
affirmed. PW.2, who is an eye-witness, was a child as he
E was 10 years of age at the time of incident. The courts
below have found him worth reliance as he has
understood the questions put to him and he was able to
answer the same. It is a settled legal proposition of law
that every witness is competent to depose unless the
F court considers that he is prevented from understanding
the question put to him, or from giving rational answers
by reason of tender age or extreme old age or disease
or because of his mental or physical condition.
Therefore, a court has to form an opinion from the
G circumstances as to whether the witness is able to
understand the duty of speaking the truth, and further in
case of a child witness, the court has to ascertain that the
witness might have not been tutored. Thus, the evidence
of a child witness must be evaluated more carefully and
H with greater circumspection because a child is
RAJKUMAR v. STATE OF M.P. 215
susceptible to be swayed by what others tell him. The A
trial court must ascertain as to whether a child is able to
discern between right or wrong and it may be
ascertained only by putting the questions to him. As the
courts below have found the child witness worth
reliance, there was no cogent reason to take a view B
contrary to the same. [paras 6 to 8, 10) [224-C-H; 225-A
and F]
State of Madhya Pradesh v. Ramesh & Anr., (2011) 4
SCC 786: 2011 (5) SCR 1; Suryanarayana v. State of
Kamataka, AIR 2001 SC 482: 2012 (3) SCR 630 - relied on. C
2. Admittedly, the appellant did not take any defence
while making his statement under Section 313 Cr.P.C.,
rather boldly alleged that the family of the deceased had
roped him falsely at the instance of the police. However, 0
appellant could not reveal as for what reasons the police
was by any means inimical to him. The accused has a
duty to furnish an explanation in his statement under
Section 313 Cr.P.C, regarding any incriminating material
that has been produced against him. If the accused has
E
been given the freedom to remain silent during the
investigation as well as before the court, then the
accused may choose to maintain silence or even remain
in complete denial when his statement under Section 313
Cr.P.C. is being recorded. However, in such an event, the
F
court would be entitled to draw an inference, including
such adverse inference against the accused as may be
permissible in accordance with law. In the instant case,
as the appellant did not take any defence or furnish any
explanation as to any of the incriminating material placed
by the trial court, the courts below have rightly drawn an G
adverse inference against him. The appellant has not
denied his presence in the house on that night. When the
children were left in the custody of the appellant, he was
bound to explain as under what circumstances
prosecutrix died. [Para 11 to 13) [225-F-H; 226-A-E] H
216 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC
1357: 2012 (9) SCR 193; Munish Mubar v. State of Haryana,
AIR 2013 SC 912; Raj Kumar Singh alias Raju @ Batya v.
State of Rajasthan AIR 2013 SC 3150 - relied on.
3. The extreme penalty of death need not be inflicted
8
except in gravest cases of extreme culpability. Before
opting for the death penalty the circumstances of the
offender also require to be taken into consideration
alongwith the circumstances of the crime for the reason
that life imprisonment is the rule and death sentence is
C an exception. The penalty of death sentence may be
warranted only in a case where the court comes to the
conclusion that imposition of life imprisonment is totally
inadequate having regard to the relevant circumstances
of the crime. The balance sheet of aggravating and
D 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 mitigating
circumstances before option is exercised. Thus, it is
E evident that for awarding the death sentence, there must
be existence of aggravating circumstances and the
consequential absence of mitigating circumstances. As
to whether death sentence should be awarded, would
depend upon the factual scenario of the case in hand.
F Thus, in spite of the fact that the appellant had committed
a heinous crime and raped an innocent, helpless and
defenceless minor girl who was in his custody and he is
liable to be punished severely but it is not a case which
falls within a category of rarest of rare cases. Therefore,
G the death sentence is set aside and life imprisonment is
awarded. The appellant must serve a minimum of 35
years in jail without remission, before consideration of his
case for pre-mature release. However, it would be subject
to clemency power of the Executive. [para 19, 21) [229-
H E-H; 230-A-B and D-E]
RAJKUMAR v. STATE OF M.P. 217
Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) A
1 sec 10: 2012 (14) SCR 862; State of W.B. V. Mir
Mohammad Omar, AIR 2000 SC 2988: 2000 (2) Suppl. SCR
712; Neel Kumar alias Anil Kumar v. State of Haryana, (2012)
5 SCC : 2012 (5) SCR 696; 766; Gian Chand & Ors. v. State
of Haryana, AIR 2013 SC 3395; Prajeet Kumar Singh v. State B
of Bihar (2008) 4 SCC 434: 2008 (5) SCR 969; Kamta Tiwari
v. State of M.P., AIR 1996 SC 2800; Dhananjoy Chatterjee
@ Dhana v. State of W.B., (1994) 2 SCC 220; Bantu @
Naresh Giri v. State of M.P., AIR 2002 SC 70; Mohinder
Singh v. State of Punjab, AIR 2013 SC 3622; Swami c
Shraddananda @ Murali Manohar Mishra v. State of
Kamataka AIR 2008 SC 3040: 2008 (11 ) SCR 93 - relied
on.
Case Law Reference:
D
2011 (5) SCR 1 Relied on Para 9
2012 (3) SCR 630 Relied on Para 9
2012 (9) SCR 193 Relied on Para 12
AIR 2013 SC 912 Relied on Para 12 E
AIR 2013 SC 3150 Relied on Para 12
2012 (14) SCR 862 Relied on Para 14
2000 (2) Suppl. SCR 712 Relied on Para 14
2012 (5) SCR 696 Relied on Para 14 F
AIR 2013 SC 3395 Relied on Para 14
2008 (5) SCR 969 Relied on Para 15
1996 (5) Suppl. SCR 507 Relied on Para 16
G
1994 (1) SCR 37 Relied on Para 16
2001 (4) Suppl. SCR 298 Relied on Para 17
AIR 2013 SC 3622 Relied on Para 18
H
218 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 2008 (11) SCR 93 Relied on Para 20
[Note: In the instant case, investigation and all
judicial proceedings upto this Court stood concluded
in less than 8 months from the date of incident. The
court appreciated that it is an exemplar of
B
expeditious justice :n country of chronic delay by
smooth functioning of investigating agency, courts
and the members of legal fraternity and such prompt
disposal of cases is expected specifically in cases of
such grave nature.]
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1419-1420 of 2013.
From the Judgment and Order dated 27.06.2013 of the
0 High Court of Madhya Pradesh Principal Seat at Jabalpur in
Criminal Reference No. 1 of 2013.
A. Sumathi for the Appellant.
Mishra Saurabh, Vanshaja Shukla, Ankit Lal for the
E Respondent.
The Judgment of the Court was delivered by
DR. S.S. CHAUHAN, J. 1. These appeals have been
preferred against the impugned judgment and order dated
F 27.6.2013 passed in Criminal Reference No. 01 of 2013 and
Criminal Appeal No. 397 of 2013 passed by the High Court of
Madhya Pradesh at Jabalpur affirming the conviction of the
appellant under Sections 376 and 450 of the Indian Penal
Code, 1860 (hereinafter referred to as the "IPC') as well as
G confirming the death sentence awarded for the offence under
Section 302 IPC by the trial court vide judgment and order
dated 5.2.2013 passed in Sessions Trial No. 20 of 2013.
2. Facts and circumstances giving rise to these appeals
H as per the prosecution are that:
RAJKUMAR v. STATE OF M.P. 219
[DR. B.S. CHAUHAN, J.]
A. On 26.12.2012, the appellant, aged 32 years, came to A
the house of his neighbour lknis Jojo (PW.1) and stayed with
his four children as Ikn is Jojo (PW.1) and his wife Albisiya had
gone to irrigate agricultural fields in the night. The appellant was
on visiting terms with the family and the children used to call
him "Mama" i.e. maternal uncle. On the said night, he had taken B
liquor and meals in the complainant's house and when retiring
for the night, the appellant asked the prosecutrix Gounjhi, aged
14 years not to sleep with her three siblings i.e. Sushma,
Sanchit and Arie, rather to sleep at some distance from them.
Around midnight, he raped prosecutrix Gounjhi. While c
committing rape, he caused some grievous injuries and
consequently she died. The incident was witnessed by Sanchit
(PW.2), brother of the prosecutrix, however, out of fear, he could
not raise any hue and cry. After committing the crime, the
appellant left the place of occurrence. In the morning, lknis Jojo
0
(PW.1) alongwith his wife Albisiya came from their fields and
found the children sleeping. They woke them up and also tried
to wake the prosecutrix when they realised that she was dead.
Sanchit (PW.2) narrated the incident that had occurred in the
night.
E
B. lknis Jojo (PW.1) immediately went to the police station
and lodged the complaint, on the basis of which Crime No. 294
of 2012 was registered for the offence under Sections 302 and
450 IPC. Shri K.S. Thakur, Inspector of Police, Police Station:
Nainpur, District Mandia, Madhya Pradesh started the F
investigation. He came to the spot, recovered the dead body,
prepared the Panchnama, also recovered the blackish brown
colour purse and clothes lying near the place of occurrence.
Some coins and a small packet of tobacoo were also
recovered. Some hair were found lying near the dead body of G
the prosecutrix and one sky blue coloured shawl was also
recovered from the place of occurrence which had blood stains
and some other kind of stains at various places. The earth of
that place having some fluid material thereon was also
recovered. The investigating officer prepared the site plan in H
220 SUPREME COURT REPORTS [2014] 3 S.C.R.
A presence of the witnesses and dead body of the prosecutrix
was sent for postmortem and the appellant was arrested.
C. Dr. Surendra Barkare (PW.6) alongwith lady Dr. (Smt.)
Prahba Pipre (PW.7) conducted the postmortem of the
prosecutrix and submitted the report. As per the postmortem
8
report, rape had been committed upon the deceased and, thus,
Sections 376 and 511 IPC were also added in the case.
D. After taking permission from the Judicial Magistrate, the
specimen blood of the appellant was obtained to conduct his
C DNA finger printing which was sent for analysis to State
Forensic Science Laboratory, Sagar. All the materials sent for
chemical analysis were analysed and the report was submitted
and on the basis of which the chargesheet was filed and the
appellant was put to trial. Appellant denied his involvement in
D the offence, thus trial commenced.
E. Dr. Surendra Barkare (PW.6) deposed and proved the
postmortem report and deposed that the prosecutrix died of
asphyxia as a result of strangulation and her death was
E homicidal in nature.
F. lknis Jojo (PW.1 ), father of the deceased, deposed while
giving the version as mentioned in the FIR and admitted that
the appellant used to come to his house occasionally and he
was referred to by his children as "Mama" and sometimes he
F used to stay in the house though his house was only half a
kilometer away from his house and he was already married
having a child.
G. Sanchit (PW.2), a 10 years old boy, supported the case
G of the prosecution and deposed that his "Mama" had come to
their house. He consumed liquor and was served rice and water
by the deceased. Appellant asked the prosecutrix to sleep at
some distance from her siblings. The appellant slept with other
three children and it was about 11-12 in the night that he heard
H the shrieks of his sister and saw that the appellant had pressed
RAJKUMAR v. STATE OF M.P. 221
[DR. B.S. CHAUHAN, J.]
her neck and he got so much scared that he could not even A
raise the voice. All this was disclosed by PW.2 to his parents
in the morning on their returning from the fields.
H. Dr. (Smt.) Prabha Pipre (PW.7) deposed about the
conduct of the postmortem of the body of the deceased 8
alongwith Dr. Surendra Barkare (PW.6). They further deposed
that hymen of the deceased was torn and blood was oozing
out from her private parts. Some blood was present in the cavity
of the private part and some blood was also present in the cavity
of her uterus. Her vagina accommodated one finger and it
accommodated two fingers with difficulty. On the basis of the C
above, she had opined that deceased had been subjected to
. rape before murder.
I. The deceased was 14 years of age and a student in sixth
standard which was proved from the school register and the D
' statement of her father Ikn is Jojo (PW.1 ). Her age has also
been mentioned in the FIR as 14 years. So far as medical
evidence is concerned, it was mentioned that the deceased
prosecutrix was about 16 years of age.
J. So far as the analysis report of the material sent and , E
the DNA report is concerned, it revealed that semen of the ·
appellant was found on the vaginal swab of the deceased. The
clothes of the deceased were also found having appellant's
semen spots. The hair which were found near the place of F
occurrence were found to be that of the appellant.
K. The trial court after considering the entire evidence on
record, recorded the following findings of fact:
(i) The evidence of Sanchit Jojo (PW.2), a child G
witness was worth placing reliance and it duly
supported the case of the prosecution;
(ii) His deposition corroborates medical evidence;
(iii) The hymen of the deceased was found torn; H
222 SUPREME COURT REPORTS [2014] 3 S.C.R.
A (iv) Semen of the appellant was found on the slide
prepared from the vaginal swab of the prosecutrix
as proved by the DNA report;
(v) The shawl of the deceased was also found having
B semen stains which were of the appellant;
(vi) The hair found near the body of the prosecutrix were
found to be of the appellant as per the DNA report;
(vii) The appellant did not take any defence in his
c statement under Section 313 Cr.P.C. except that
he had been falsely implicated by the family of the
deceased at the instance of the police and that the
appellant did not lead any evidence in his defence.
L. Considering all the aforementioned circumstances and
D evidence of the relationship with the family of the deceased,
the trial court treated it to be a case of extreme culpability and
a rarest of rare case awarding death sentence under Section
302 IPC with a fine of Rs. 3,000/-. Under Section 376 IPC, the
appellant was awarded rigorous life imprisonment and a fine
E of Rs.3,000/-; in default of making payment on both counts,
sentence of one year on each count was also awarded. For the
offence punishable under Section 450 IPC, the appellant was
awarded 10 years rigorous imprisonment with a fine of
Rs.3,000/- and in default, a rigorous imprisonment for one year.
F However, it was directed that all the sentences would run
concurrently.
M. The trial court made a reference to the High Court for
affirming the death sentence. The appellant, being aggrieved,
G also preferred an appeal against his conviction and sentence
before the High Court. The appeal and the reference were
heard together.
N. The High Court recorded the same findings after re-
appreciation of evidence and came to the conclusion that
H
RAJKUMAR v. STATE OF M.P. 223
[DR. B.S. CHAUHAN, J.]
prosecutrix was 14 years of age at the time of incident. The A
appellant was admittedly present in the house but he furnished
no explanation whatsoever about the injuries received by the
deceased. As the appellant has committed rape upon an
innocent and helpless child and then killed her brutally, it has
shocked not only the judicial conscience but even the B
conscience of society as well. The High Court also recorded
the finding that the offence had been committed in pre-
mediated manner. The death sentence was affirmed and the
appeal was dismissed.
Hence, these appeals.
c
3. Ms. A. Sumathi, learned counsel appearing on behalf
of the appellant, has submitted that the appellant had falsely
been implicated by the family members of the deceased at the
instance of the police. There is no eye-witness in the case. D
Sanchit Jojo (PW.2), brother of the prosecutrix, is a child
witness and cannot be relied upon simply for the reason that
after seeing the incident and knowing well that his sister had
been killed, he did not raise any alarm even after the accused
had left the spot. Even in the morning, he did not tell his parents E
when they came back from the agricultural fields as what had
happened. Therefore, the courts below have committed a grave
error while placing reliance upon the deposition of the child
witness. It is a clear cut case of circumstantial evidence for
which the prosecution could not furnish explanation on various F
counts and it cannot be held that appellant had committed rape
upon prosecutrix and, subsequently, killed her. The facts and
circumstances of the case did not warrant death sentence as
awarded by the courts below, and hence, the appeals deserve
to be allowed.
G
4. Per contra, Ms. Vanshaja Shukla, learned counsel
appearing on behalf of the State, has vehemently opposed the
appeals contending that the appellant had a pre-meditated
intention to commit the offence and that is why he asked the
prosecutrix to sleep separately. The chemical analysis report H
224 SUPREME COURT REPORTS [2014] 3 S.C.R.
A as well as the DNA report make it crystal clear that no other
person except the appellant had committed the offence and the
manner in which the offence had been committed and the
gravity of the offence warrant nothing less than the death
sentence and, thus, the appeals lack merit and are liable to be
B dismissed.
5. We have considered the rival submissions made by the
learned counsel for the parties and perused the records.
6. We have been taken through the impugned judgments
C rendered by the High Court as well as the trial court and the
evidence on record. In view of the concurrent findings of fact
recorded by the courts below, particularly in respect of the DNA
report to the extent that the semen of the appellant was found
in the vagina swab of the prosecutrix and that she died of
D asphyxia caused by strangulation, we affirm the findings of fact
recorded by the courts below.
7. Sanchit Jojo (PW.2), who is an eye-witness, was a child
as he was 10 years of age at the time of incident. The courts
below have found him worth reliance as he has understood the
E
questions put to h1m and he was able to answer the same. The
issue regarding the admissibility of evidence of a child witness
is no more res intergra.
8. It is a settled legal proposition of law that every witness
F is competent to depose unless the court considers that he is
prevented from understanding the question put to him, or from
giving rational answers by reason of tender age or extreme old
age or disease or because of his mental or physical condition.
Therefore, a court has to form an opinion from the
G circumstances as to whether the witness is able to understand
the duty of speaking the truth, and further in case of a child
witness, the court has to ascertain that the witness might have
not been tutored. Thus, the evidence of a child witness must
be evaluated more carefully and with greater circumspection
H bec,ause a child is susceptible to be swayed by what others
RAJKUMAR v. STATE OF M.P. 225
[DR. B.S. CHAUHAN, J.]
tell him. The trial court must ascertain as to whether a child is A
able to discern between right or wrong and it may be
ascertained only by putting the questions to him.
9. This Court in State of Madhya Pradesh v. Ramesh &
Anr., (2011) 4 sec 786, after considering a large number of 8
its judgments came to the conclusion as under:
"In view of the above, the law on the issue can be
summarized to the effect that the deposition of a child
· witness may require corroboration, but in case his
deposition inspires the confidence of the court and there C
is no embellishment or improvement therein, the court may
rely upon his evidence. The evidence of a child witness
must be evaluated more carefully with greater
circumspection because he is susceptible to tutoring. Only
in case there is evidence on record to show that a child D
has been tutored, the Court can reject his statement partly
or fully. However, an inference as to whether child has been
tutored or not, can be drawn from the contents of his
deposition."
E
(See also: Suryanarayana v. State of Kamataka, AIR 2001 SC
482).
10. In view of the above, as the courts below have found
the child witness worth reliance, we do not see any cogent
reason to take a view contrary to the same. F
11. Admittedly, the appellant did not take any defence
while making his statement under Section 313 Cr.P.C., rather
boldly alleged that the family of the deceased had roped him
falsely at the instance of the police. However, appellant could G
not reveal as for what reasons the police was by any means
inimical to him.
12. The accused has a duty tp furnish an explanation in
his statement under Section 313 Cr.P.C. regarding any
H
226 SUPREME COURT REPORTS [2014] 3 S.C.R.
A incriminating material that has been produced against him. If
the accused has been given the freedom to remain silent during
the investigation as well as before the court, then the accused
may choose to maintain silence or even remain in complete
denial when his statement under Section 313 Cr.P.C. is being
B recorded. However, in such an event, the court would be entitled
to draw an inference, including such adverse inference against
the accused as may be permissible in accordance with law.
(Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012
SC 1357; Munish Mubar v. State of Haryana, AIR 2013 SC
c 912; and Raj Kumar Singh alias Raju @ Batya v. State of
Rajasthan, AIR 2013 SC 3150).
In the instant case, as the appellant did not take any
defence or furnish any explanation as to any of the incriminating
material placed by the trial court, the courts below have rightly
D drawn an adverse inference against him.
13. The appellant has not denied his presence in the
house on that night. When the children were left in the custody
of the appellant, he was bound to explain as under what
E circumstances Gounjhi died.
14. In Prithipal Singh & Ors. v. State of Punjab & Anr.,
(2012) 1 sec 10, this Court relying on its earlier judgment in
State of WB. v. Mir Mohammad Omar, AIR 2000 SC 2988,
held as under:
F
"..... if fact is especially in the knowledge of any person,
then burden of proving that fact is upon him. It is
impossible for the prosecution to prove certain facts
particularly within the knowledge of the accused. Section
G 106 is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond
reasonable doubt. But the section would apply to cases
where the prosecution has succeeded in proving facts
from which a reasonable inference can be drawn
H regarding the existence of certain other facts, unless the
RAJKUMAR v. STATE OF M.P. 227
[DR. B.S. CHAUHAN, J.]
accused by virtue of his special knowledge regarding A
such facts, failed to offer any explanation which might
drive the court to draw a different inference. Section 106
of the Evidence Act is designed to meet certain
exceptional cases, in which, it would be impossible for the
prosecution to establish certain facts which are B
particularly within the knowledge of the accused. "
(See also: Neel Kumar alias Anil Kumar v. State of
Haryana, (2012) 5 SCC 766; and Gian Chand & Ors. v. State
of Haryana, AIR 2013 SC 3395).
c
15. This Court in Prajeet Kumar Singh v. State of Bihar,
(2008) 4 sec 434 had confirmed the death sentence awarded
by the High Court observing that accused had been living as a
family member of the victim and had been provided with shelter
and meals, despite which he committed ghastly and brutal 0
murder of three defenceless children without any provocation.
16. In a similarly situated case in Kamta Tiwari v. State of
MP., AIR 1996 SC 2800, this Court found that the accused was
close to the family of the deceased. The deceased and her
siblings used to call the accused uncle and her closeness with E
the appellant encouraged her to trust him and when the accused
had committed the rape and gruesome murder causing
numerous injuries on her body, this Court found it to be a fit
case for awarding death sentence. The Court observed as
under: F
"When an innocent hapless girl of 7 years was subjected
to such barbaric treatment by a person who was in a
position of her trust his culpability assumes the proportion
of extreme depravity and arouses a sense of revulsion
in the mind of the common man. In fine, the motivation G
of the perpetrator, the vulnerability of the victim, the
enormity of the crime, the execution thereof persuade us
to hold that this is a "rarest of rare" cases where the
sentence of death is eminently desirable not only to deter
· others from committing such atrocious crimes but also H
228 SUPREME COURT REPORTS (2014] 3 S CR
A to give emphatic expression to society's abhorrence of
such crimes. "
(See also: Dhananjoy Chatterjee @ Dhana v. State of WB.,
(1994) 2 sec 220)
B 17. However, in Bantu@ Naresh Giri v. State of MP., AIR
2002 SC 70, while dealing with the case of rape and murder
of a six years old girl, this Court found that the case was not
one of the 'rarest of rare case'. The Court noticed that, accused
was less than 22 years at the time of commission of the offence,
c there were no injuries on the body of the deceased and the
death probably occurred as a result of gagging of the nostril
by the accused. Thus, the Court while noticing that the crime
was heinous, commuted the sentence of death to one of life
imprisonment.
D 18. In Mohinder Singh v. State of Punjab, AIR 2013 SC
3622, this Court dealt with the case of death sentence
observing:
"In this context, we are only reminded of the Tamil proverb
~C\\J ull60XJ ~ /JJBSl';b"Which means in English
"when the fence eats the crops". When the father himself
happens to be the assailant in the commission of such
beastly crime, one can visualise the pathetic situation in
which the girl would have been placed and that too when
F such a shameless act was committed in the presence of
her own mother. When the daughter and the mother were
able to get their grievances redressed by getting the
appellant convicted for the said offence of rape one would
have in the normal course expected the appellant to have
G displayed a conduct of remorse. Unfortunately, the
subsequent conduct of the appellant when he was on
parole disclosed that he approached th"e victims in a far
more vengeful manner by assaulting the hapless victims
which resulted in filing of an FIR once in the year 2005
H and subsequently when he was on parole in the year
RAJKUMAR v. STATE OF M.P. 229
[DR. 8.S. CHAUHAN, J.]
2006. The monstrous mindset of the appellant appears A
to have not subsided by mere assault on the victims who
ultimately displayed his extreme inhuman behaviour by
eliminating his daughter and wife in such a gruesome
manner in which he committed the murder by inflicting
the injuries on the vital parts of the body of the deceased B
and that too with all vengeance at his command in order
to ensure that they met with instantaneous death. The
nature of injuries as described in the post-mortem report
speaks for itself as to the vengeance with which the
appellant attacked the hapless victims. He was not even c
prepared to spare his younger daughter viz. PW 2 who,
however, escaped}he, wrath of the appellant by bolting
herself inside a room after she witnessed the grotesque
manner in which the appellant took away the life of his
wife and daughter."
D
However, the Court concluded that applying various
principles culled out from earlier judgments of this Court, the
case did not fall within the category of "rarest of rare case",
though it called for a stringent punishment.
E
19. The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability. Before opting
for the death penalty the circumstances of the offender also
require to be taken into consideration alongwith the
circumstances of the crime for the reason that life imprisonment F
is the rule and death sentence is an exception. The penalty of
death sentence may be warr.anted only in a case where the
court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The balance sheet of aggravating
and mitigating circumstances has to be drawn up and in doing G
so, the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and mitigating circumstances before option is
exercised.
H
230 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Thus, it is evident that for awarding the death sentence,
there must be existence of aggravating circumstances and the
consequential absence of mitigating circumstances. As to
whether death sentence should be awarded, would depend
upon the factual scenario of the case in hand.
B 20. A three-Judge Bench of this Court in Swami
Shraddananda @ Murali Manohar Mishra v. State of
Karnataka, AIR 2008 SC 3040, wherein considering the facts
of the case, the Court set aside the sentence of death penalty
and awarded life imprisonment, but further explained that in
C order to serve the ends of justice, the appellant therein would
not be released from prison till the end of his life.
21. Thus, taking into consideration the aforesaid
judgments, we are of the view that in spite of the fact that the
0 appellant had committed a heinous crime and raped an
innocent, helpless and defenceless minor girl who was in his
custody, he is liable to be punished severely but it is not a case
which falls within a category of rarest of rare cases. Hence, we
set aside the death sentence and award life imprisonment. The
E appellant must serve a minimum of 35 years in jail without
remission, before consideration of his case for pre-mature
release. However, it would be subject to clemency power of the
Executive.
The appeals stand disposed of.
F
Before we part, we would like to note with appreciation that
in the instant case investigation and all judicial proceedings
upto this Court stood concluded in less than 8 months from the
date of incidence. Thus, it is an exemplar of expeditious justice
in country of chronic delay by smooth functioning of
G investigating agency, courts and the members of legal fraternity.
We expect such prompt disposal of cases specifically in cases
of such grave nature.
D.G. Appeals disposed of.
H
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