SAMBHUBHAI RAISANGBHAI PADHIYARversusSTATE OF GUJARAT

                 [2024] 12 S.C.R. 1072 : 2024 INSC 987

                  Sambhubhai Raisangbhai Padhiyar
                                v.
                         State of Gujarat
                 (Criminal Appeal No(s). 5412-5413 of 2024)
                              17 December 2024
           [B.R. Gavai, Aravind Kumar and K.V. Viswanathan,* JJ.]


                            Issue for Consideration
       Issue arose as regards the correctness of the order of conviction
       and death sentence to the appellant for offences punishable
       u/ss.302, 364 and 377 IPC and ss. 4 and 6 of the POCSO,
       for committing murder and brutal sexual assault of the 4 year old
       boy.

                                  Headnotes†

       Penal Code – ss.302, 364, 377 – Protection of Children from
       Sexual offences Act, 2012 – ss.4, 5, 6, 29 – Murder, kidnapping
       and sexual assault – Case of brutal sexual assault and murder
       of four year old boy – Trial court convicted and sentenced the
       appellant to death for offences punishable u/ss.302, 364 and
       377 IPC and ss.4 and 6 of the POCSO – High Court confirmed
       the conviction and sentence of death – Correctness:
       Held: Time lag between the accused being last seen with the
       deceased and the sighting of the dead body lying was extremely
       short and accused was to offer a plausible explanation as to how
       he parted company with the deceased and the explanation offered
       must be satisfactory, which he failed to do so, that itself provides
       an additional link in the chain of circumstances – Presence of the
       accused at the scene of crime in the background of the evidence
       of last seen, is clear link in the chain of circumstances which point
       to the guilt of the accused – Injury on the private parts of the
       accused for which no other explanation offered, conduct of the
       appellant in pointing out where the apparel of the deceased was
       hidden, matching of blood group considered, all considered as an
       additional link in the chain of circumstances – Thus, circumstantial
       evidence pointing to the guilt of the appellant exist – Injury on the

* Author
[2024] 12 S.C.R.                                                          1073

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


     prepuce of the penis of the accused along with the matching of
     the blood group coupled with other circumstantial evidence clearly
     constitute foundational facts for raising presumption u/s. 29 and
     30 of the POCSO Act – Appellant did not rebut the presumption
     by adducing proof to the contrary – Thus, the circumstances
     fully established, the circumstances so established consistent
     only with the hypothesis of the guilt of the accused and are
     not explainable by any other hypothesis; the circumstances
     are conclusive in nature and the chain of circumstance is so
     complete as to point to the conclusion that the appellant is guilty
     of the offences charged – Conviction as imposed by the courts
     below upheld – Instant case is not a case where possibility of
     reformation is completely ruled out – Even though the case
     falls short of the rarest of rare category, in view of the nature
     of the crime, a sentence of life imprisonment which normally
     works out for 14 years would be grossly disproportionate and
     inadequate – Sentence of imprisonment for a prescribed period
     without remission would alone be proportionate to the crime and
     also not jeopardize the public confidence in the efficacy of the
     legal system – Sentence of imprisonment for a period of twenty-
     five years without remission would be ‘a just desert’ – Thus, the
     sentence of death for the offence u/s.302 set aside, substituting
     the same with that of rigorous imprisonment for a period of 25
     years without remission – Sentence imposed for offences u/ss.
     364 and 6 of the POCSO Act to run concurrently – Considering
     the socio-economic condition of the accused, the fine imposed
     set aside – Evidence Act, 1872 – Sentencing – Death sentence –
     Remission. [Paras 13-37, 39-42]

                             Case Law Cited
     Swami Shraddananda v. State of Karnataka [2008] 11 SCR
     93 : (2008) 13 SCC 767; Sharad Birdhichand Sarda v. State
     of Maharashtra [1985] 1 SCR 88 : (1984) 4 SCC 116; State of
     Rajasthan v. Kashiram [2006] Supp. 8 SCR 501 : (2006) 12 SCC
     254; Pappu v. State of UP [2022] 2 SCR 13 : (2022) 10 SCC
     321 – relied on.
     A.N. Venkatesh and another v. State of Karnataka (2005) 7 SCC
     22 714; Prakash Chand v. State (Delhi Admn.) [1979] 2 SCR 330 :
     (1979) 3 SCC 90; Prakash v. State of Karnataka [2014] 5 SCR
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    242 : (2014) 12 SCC 133; Veerendra v. State of Madhya Pradesh
    [2022] 4 SCR 225 : (2022) 8 SCC 668; Nawas Alias Mulanavas
    v. State of Kerala [2024] 3 SCR 913 : (2024) SCC OnLine SC
    315 – referred to.

                              List of Acts
    Penal Code, 1860; Protection of Children from Sexual Offences
    Act, 2012.

                           List of Keywords
    Murder; Kidnapping; Sexual assault; Brutal sexual assault; Death
    sentence; Rejection of parole; Golden principles of circumstantial
    evidence; Facts consistent with hypothesis of guilt; Complete
    chain of evidence; Last seen; Time lag between accused last
    seen and sighting of dead body; Additional link in the chain of
    circumstances; Presence of accused; Chain of circumstances;
    Matching of blood group; Injury on prepuce of penis of accused;
    Presumption; Rebutting the presumption by adducing proof;
    Possibility of reformation; Rarest of rare category; Sentence of
    life imprisonment; Disproportionate and inadequate sentence;
    Remission; Just desert; Socio-economic condition.

                          Case Arising From
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
    5412-5413 of 2024
    From the Judgment and Order dated 03.04.2019 of the High
    Court of Gujarat at Ahmedabad in CRLCC No. 2 and CRLA
    No. 1207 of 2018
    With
    Special Leave Petition (Crl.) No. 9162 of 2021

                       Appearances for Parties
    Ms. Uttara Babbar, Sr. Adv., Ms. Manasa Ramakrishna, Bhavesh
    Seth, Manan Bansal, Ms. Rayana Mukherjee, Ms. Maitreyi Misra,
    Ms. Veera Mahuli, Nisarg P. Khatri, Arunava Mukherjee, Ramesh
    Kumar Sahu, Dr. Nirmal Chopra, Advs. for the Appellant.
    Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Ms. Neha Singh, Rishi
    Yadav, Advs. for the Respondent.
[2024] 12 S.C.R.                                                    1075

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


                Judgment / Order of the Supreme Court

                                 Judgment

     K.V. Viswanathan, J.

1.   Leave granted.
2.   Wednesday, 13th April 2016 dawned normally for the family of
     Pravingiri Gosai (PW-9), a farmer, who also alternated as the temple
     priest at Piludara village under the Vedaj Police Station, Bharuch
     District in the State of Gujarat. However, by dusk the situation had
     turned macabre for them, when their four-year old child was found
     murdered in the village outskirts.
3.   The appellant herein stood trial for the offences of kidnapping,
     sexual assault and murder of the said child and was convicted and
     sentenced to death by the Trial Court. The High Court of Gujarat
     at Ahmedabad, by the judgment dated 03.04.2019 in R/Criminal
     Confirmation Case No. 2 of 2018 with R/Criminal Appeal No. 1207
     of 2018, confirmed the conviction and sentence of death imposed
     on him for the offences punishable under Sections 302, 364, and
     377 of the Indian Penal Code (for short ‘IPC’) and Sections 4 and
     6 of the Protection of Children from Sexual offences Act, 2012 (for
     short ‘POCSO Act’). The appellant is before us in appeal by way of
     special leave.

     Brief Facts:
4.   Pravingiri Gosai (PW-9) and his wife Artiben (PW-13.2) left their
     house at 06:00 a.m. in the morning of 13.04.2016 to get fodder for
     their cattle leaving their two small children Rohit @ Shital, aged
     about four years, the deceased and Rajeshwari, aged three months,
     along with PW-9’s mother at home. When they returned at 11.00
     a.m., PW-9’s mother and children were at home. PW-9 left again
     to install a Dish TV in the village and returned at around 1 O’clock.
     He noticed that Rohit was not at home and when he inquired from
     his wife Arti, she replied that Rohit was playing near the temple
     and had not been seen since long. The desperate father continued
     his inquiries when PW-10 Jyotsnaben, his sister-in-law, who lived
     in the neighborhood told him that when Rohit was playing near the
     temple about 12:30 PM, the appellant who belonged to their village
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     took the deceased and when she inquired from the appellant as to
     where he was taking the deceased, the appellant in spite of being
     dissuaded from doing so, told her that he will buy the child ice-cream
     and return in a while.
5.   Since Rohit had not returned, PW-9 continued his search in the
     village when he met the appellant under a jamun tree behind the
     Pir Dargah at the bank of the lake at about 2 O’clock. When PW-9
     inquired about his son with the appellant, the appellant told him that
     he gave the deceased ice-cream to eat and sent him home. PW-9
     went home and when Rohit was not there, he came back to the lake,
     the appellant was not found. PW-13.2 Artiben, the mother of the
     deceased also carried out the search carried out and after receiving
     information from PW-11 Manoj Kumar Parmar that the deceased was
     taken by the appellant, she along with her sister-in-law PW-10, and
     daughter went to the appellant’s house. The appellant’s mother was
     there and the appellant was not there. They left a message with the
     appellant’s mother that the appellant may be told to send their son
     (deceased) back home.
6.   PW-9 continued his inquiries and search when he received a call
     from Manoj Kumar Parmar (PW-11) who asked PW-9 to come to the
     bank of the lake behind the Pir Dargah. When PW-9 reached the
     spot, he found the dead body of his son lying naked near the bushes.
7.   PW-9 lodged a complaint around 06:45 at the Vedaj Police Station
     which resulted in registration of an FIR and the subsequent
     proceedings. After the inquest, the body of the deceased was sent
     for postmortem to BKS Medical College Vadodara. The postmortem
     report reveals that death was due to asphyxia due to throttling. A
     number of injuries were found on the body of the deceased which
     are as follows:
          “The following injuries were observed during the external
          examination of the dead body.
          (1) Multiple scratch abrasions of size varying from 0.1 cm
          x 0.5 cm to 1.5 cm x 0.1 cm with underlying contusions of
          size varying from 1 cm x 1 cm to 2.5 cm x 2 cm present
          over perianal region. Perianal skin swollen, reddish in
          colour. Anal orifice dilated, roomy diameter of anal orifice
          is 2.5 cm. Part of rectum protruded out through anal orifice.
[2024] 12 S.C.R.                                                        1077

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


          (2) A bite mark in form of pressure abrasion of size 4 cm
          x 3.5 cm present over right cheek, 3 cm above right angle
          of mandible and 4 cm right to midline.
          (3) Multiple laceration of size varying from 0.5 cm x 0.2 cm
          to 1 cm x 0.2 cm x tissue deep with underlying contusions
          of size varying from 1 cm x 0.5 cm to 1.5 cm x 1 cm
          present over inner aspects of both lips.
          (4) Multiple crescentic shaped abrasions of size varying
          from 0.5 cm x 0.1 cm to 1.2 cm x 0.1 cm in an area of 5
          cm x 3 cm present over left side of neck, 3.5 cm left to
          midline and 2 cm below chin.
          (5) Two abrasions of size 1.5 cm x 0.5 cm and 0.5 cm x
          0.2 cm present over right side of the neck, 1.5 cm below
          chin and 2 cm, 3 cm right to midline respectively.
          (6) Multiple scratch abrasions of size varying from 8.5 cm
          x 0.5 cm to 2.5 cm x 0.5 cm present in an area of 20 cm
          x 9 cm, over back of right thigh.
          Note: All abrasions and contusions are reddish in colour.
          Margins of all lacerated wounds are irregular and contused
          with red clotted blood over it.
          All of the above mentioned injuries were antemortem in
          origin.”
     It will be clear from the above that the deceased was also subjected
     to penetrative sexual assault through the anus. PW-8 Dr. Kalpesh
     Kumar who led the postmortem team has categorically opined that
     the cause of death was asphyxia due to throttling. In view of this,
     there is no iota of doubt that the deceased had a homicidal death.
     The only question that arises is as to whether there is any evidence
     against the appellant to convict him for the offences charged.
8.   The appellant was arrested (at about 20:45 hrs. to 21:26 hrs.) on
     14.04.2016 and his medical examination revealed that there were
     injury marks on his genitals as spoken to by PW-7 Dr. Kamlesh Kumar.
9.   The prosecution attempts to rely on the discovery panchnama
     (Exh.18) to reinforce their case that it was pursuant to the appellant’s
     statement that the place of occurrence was discovered. PW-4
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     Bharat Kumar and PW-5 Arjun Sinh were examined in support of
     the said purported discovery panchnama. This document, however,
     is seriously disputed by the defence. According to the defence,
     the panchnama (Exh.9) of the place of the occurrence was already
     drawn on 14.04.2016 between 16:00 hrs and 18:30 hrs and by the
     time the discovery panchnama (Exh.18) was drawn at around 09:00
     a.m. on 15.04.2016, the place of occurrence was already known to
     the prosecution.
10. It is also the case of the prosecution that as part of the same
    transaction when the place of occurrence was discovered and after
    the said panchnama was drawn at around 09:00 a.m. on 15.04.2016,
    the accused voluntarily expressed willingness to show the place where
    he had thrown the clothes of the victim and in pursuance thereof the
    recovery panchnama (Exh.21) was drawn up between 09:15 hours
    and 09:45 hrs on 15.04.2016 and a light pink coloured Tshirt and a
    red coloured leggings were recovered The prosecution has examined
    PW-6 Maheshbhai in support of the recoveries. The defence has
    strongly objected to the admissibility of the recoveries on the ground
    that no statement of the accused was recorded on this aspect and
    that what is available is merely a purported recovery carried out. We
    have considered this aspect in the later part of the judgment coupled
    with the applicability of Section 8 of the Evidence Act to see if the
    conduct of the accused in leading to the place where the clothes of
    the deceased were found would be admissible in evidence.
11. We have heard Ms. Uttara Babbar, learned senior counsel for
    the appellant, appearing pro bono, who presented the case
    comprehensively and filed detailed written submissions. We have also
    heard Ms. Swati Ghildiyal, learned counsel for the State who in ably
    advancing the State’s case, left no stone unturned in countering the
    submissions of the learned senior counsel for the appellant. Detailed
    written submissions were also filed by her. We have perused the
    records including the records of the trial court.
12. The case rests on circumstantial evidence. We are conscious of the
    five golden principles repeatedly reiterated by this Court which are
    to be borne in mind in cases involved with circumstantial evidence.
    In the leading case of Sharad Birdhichand Sarda vs State of
    Maharashtra, (1984) 4 SCC 116, it was held as under:-
[2024] 12 S.C.R.                                                       1079

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


          “153. A close analysis of this decision would show that
          the following conditions must be fulfilled before a case
          against an accused can be said to be fully established:
          “(1) the circumstances from which the conclusion of guilt
          is to be drawn should be fully established.
          It may be noted here that this Court indicated that the
          circumstances concerned “must or should” and not “may
          be” established. There is not only a grammatical but a
          legal distinction between “may be proved” and “must be
          or should be proved” as was held by this Court in Shivaji
          Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
          793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
          observations were made:
          “Certainly, it is a primary principle that the accused must
          be and not merely may be guilty before a court can convict
          and the mental distance between ‘may be’ and ‘must be’ is
          long and divides vague conjectures from sure conclusions.”
          (2) the facts so established should be consistent only with
          the hypothesis of the guilt of the accused, that is to say,
          they should not be explainable on any other hypothesis
          except that the accused is guilty,
          (3) the circumstances should be of a conclusive nature
          and tendency,
          (4) they should exclude every possible hypothesis except
          the one to be proved, and
          (5) there must be a chain of evidence so complete as
          not to leave any reasonable ground for the conclusion
          consistent with the innocence of the accused and must
          show that in all human probability the act must have been
          done by the accused.”
     Approaching the case at hand with the above principles in mind, we
     find the following.

     Circumstance No. 1: The appellant last seen with the deceased
13. It is the consistent case of the prosecution that the deceased child
    Rohit @ Shital was barely four years old and was playing near his
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     house when the accused took him from there under the pretext of
     getting him ice-cream. PW-10 Jyotsnaben, who was the aunt of the
     deceased and who lived nearby, clearly deposed that on the day
     of the incident when she was cooking near the front side of the
     house, the appellant came to her and asked for water. Thereafter,
     while leaving, the accused took the victim. When she asked the
     appellant where he was taking the victim, the appellant replied that
     he was taking the victim to get ice-cream and he will send him after
     that. When PW-10 told him not to do so, the appellant stated that
     he would send him back after getting the child ice-cream, and so
     saying took the child with him.
14. It is undisputed that the family of the deceased knew the appellant
    and his family. PW-10 further deposed that when after a long time
    the deceased did not return, she informed the same to her sister-in-
    law PW-13.2 Artiben. PW-10 maintained her narration in the cross
    where it also emerges that she searched for child at the ice-cream
    shop of Kabo and Yogesh in the village and was told that the victim
    had not been there.
15. The deposition of PW-10 Jyotsnaben is fully corroborated by the
    evidence given by PW-11 Manoj Kumar. PW-11 states that he was
    running a garment shop at Piludara village; that on the day of the
    incident, the appellant Shambhu passed by his shop at about 12
    O’clock; that Pravingiri’s son was with the appellant; that on being
    asked the appellant informed that he was going to the shop of
    Kaliya to get ice-cream. PW-11 also stated that when the appellant
    was passing by the shop along with victim, PW-12 Somabhai
    Ranchhodbhai, Ranjitbhai Fatesang and Raysangbhai Manorbhai
    were also present. The defence contends that PW-12 did not support
    the case of the prosecution and was declared hostile. This aspect
    of the matter does not detract from the clinching evidence of the
    evidence of aunt of the deceased - PW-10 Jyotsnaben which we
    find very natural or the evidence of PW-11 Manoj Kumar who had
    no reason to falsely depose to the said fact. The only suggestion
    given to PW-11 is that he was deposing because he was friend of
    the father of the deceased. We are not persuaded to discredit the
    testimony of PW-11 on this score.
16. Apart from PW-10 and PW-11, PW-13.1 Sursangbhai also speaks
    about the appellant taking the deceased and the appellant stating
[2024] 12 S.C.R.                                                       1081

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


     that he was going to get the child ice-cream. PW-13.1 states that
     thereafter he went inside the house and left for the farm. It was
     strongly contended by the defence that in the cross-examination,
     he had deposed that he had not seen the appellant passing by the
     shop along with the deceased. The portion of the cross-examination
     has to be read in the context of the earlier statements occurring
     therein. They are as follows:
          “It is not true that Manojbhai’s shop is located at the
          distance of half kilometer from my house. It is true that
          Manojbhai’s shop is in the market it is true that Manojbhai
          runs business of ice cream and other goods. Kaliya’s shop
          is located in the other market. I had reached Manojbhai’s
          shop at about 1 o’clock. It is true that the market was
          open and there was movement of people. It is true that I
          had not seen Shambhu passing by the shop along with
          the son of Pravin. Pravin bhai Maharaj is my friend. I do
          not know his family members.”
     It will be seen that PW-13.1 states that he reached Manojbhai’s
     shop at about 1 O’clock and that market was open and there was
     movement of people and thereafter the statement occurs that he
     had not seen appellant passing by along with the son of Pravingiri.
     Mrs. Swati Ghildiyal, learned counsel for the State, in her written
     submissions, has furnished the portion as in Gujarati which was also
     read to us and translated at the time of the oral hearing. According to
     the learned counsel for the State, the particular sentence only meant
     that PW-13.1, did not see the appellant leaving or going away from
     the shop and that this was only because he had gone into his house
     prior to that. We are inclined to accept the meaning as it comes
     out from the Gujarati version. The small discrepancies insofar as
     the timings are concerned are only natural as the witnesses were
     deposing nearly two years after the incident. They are not material
     discrepancies.
17. Hence, it is undisputed that between 12:00 and 01:00 PM, the
    appellant went to the neighborhood of the house of the deceased
    and partook water from the aunt PW-10, engaged in a conversation
    with her and in spite of being dissuaded, took the deceased child
    under the pretext of buying him ice-cream. The time lag between
    the accused being last seen and the sighting of the dead body lying
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     is also extremely short. PW-11 Manoj Kumar states that at about
     5 O’clock in the evening when they were searching for the victim
     and when they were near the boundary wall of the lake near the
     Dargah, some persons informed them that a dead body was lying
     in the acacia bushes behind the Dargah.
18. The incident has clearly occurred between 12:00 noon and 05:00
    PM on 13.04.2016. The timing is also corroborated by the doctor
    PW-8 who did the postmortem on 14.04.2016 between 03:35 PM and
    04:45 PM and he further deposed that death would have occurred
    24 to 36 hours before the postmortem. There are some important
    aspects which require to be noticed here and that is what brings out
    the clinching nature of the case against the appellant.
19. The deceased, aged between three and a half and four years, was
    a small child, just out of toddlerhood and at the pre-school stage.
    This is very significant because when the appellant has from the
    neighborhood of the house of the deceased taken the deceased
    one would expect that the small child would be brought back and
    dropped at the house. The appellant offered no explanation as to
    what happened after the time he spent with the child and has no
    case that he handed over the child to any other person or that he
    dropped the child home. Unlike in the case of grownups, where an
    explanation about the manner of parting company could in a given
    case be acceptable in the case of a small child who has been picked
    up from neighborhood of his house, it would be normal to expect that
    the small child would be dropped back home or an explanation about
    entrusting of the child to another person to be safely taken home is
    given. The appellant’s lack of explanation is to say the least baffling.
20. According to PW-9 the father of the deceased, when he went in search
    of the child for the second time to the area where PW-11 had told
    him about the appellant having proceeded with child, PW-9 actually
    met with the appellant and asked about the deceased. The appellant
    on asking told PW-9 that he gave ice-cream to the deceased and
    sent him. This statement in the deposition is also mentioned at the
    earliest point in the First Information Report lodged on 13.04.2016
    at about 07:30 PM in the evening.
21. It is well settled that if the accused is last seen with the deceased and
    particularly in a case of this nature when the time gap between the
    last seen stage and occurrence of death is so short, the accused must
[2024] 12 S.C.R.                                                      1083

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


     offer a plausible explanation as to how he parted company with the
     deceased and the explanation offered must be satisfactory. Section
     106 of the Evidence Act mandates that when any fact is especially
     within the knowledge of any person, the burden of proving that fact
     is upon him. It is on this principle that this Court has repeatedly held
     that if an accused fails to offer an explanation, he fails to discharge
     the burden cast upon him under Section 106 and if he fails to offer
     a reasonable explanation that itself provides an additional link in
     the chain of circumstances [See State of Rajasthan Vs. Kashiram
     (2006) 12 SCC 254 and Pappu Vs. State of UP (2022) 10 SCC 321].

     Circumstance No. 2: Found in the vicinity of the scene of crime
     at about the time of crime:
22. Both in the First Information Report and in the evidence, PW-9 speaks
    about his going to the lake. It is not in dispute that it was this place,
    viz, near the boundary wall of the lake behind the Dargah of Pir in
    the acacia bushes, the body of the deceased was found naked at
    around 5 O’clock on 13.04.2016. The presence of the accused at the
    scene of crime in the afternoon at about 2 O’clock in the background
    of the evidence of last seen of PW-10, 11 and 13.2, is a clear link in
    the chain of circumstances which point to the guilt of the accused. If
    one couples this fact with the fact that he was not at home around
    the time when PW-10 Jyotsnaben and PW13.2 Artiben, the mother
    visited the house of the appellant, it reinforces the evidence of PW-9
    that in the afternoon, on the date of crime, the appellant was at the
    place of the crime and the deceased who was taken from the house
    was not with him at that moment.

     Circumstance No. 3: Injury on the private parts of the accused
23. PW-7, Dr. Kamlesh Kumar who examined the accused on 15.04.2016
    deposed that there was injury on the genitals of the accused.
    Exh.P-27 certificate also reveals that there were abrasions on
    the prepuce of the accused. It will be seen from the injuries on
    the deceased as reflected in the evidence of PW-8 Dr. Kalpesh
    and the postmortem report Exh. P.28 that the perianal region of
    the deceased had multiple scratch abrasions with the underlying
    contusions; that the perianal skin was swollen and reddish in colour;
    the anal orifice dilated, roomy and that part of the rectum protruded
    out through the anal orifice. The doctor has also opined that these
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     injuries were antemortem in origin. The abrasions in the prepuce of
     the accused were there even two days after the incident. The only
     suggestion in the cross-examination to the doctor raised that if a
     person scratches the genitals a lot, signs of contusions could be
     observed. No other explanation is offered. Considering the overall
     facts, we are inclined to accept this circumstance as an additional
     link in the chain of circumstances.

     Circumstance No. 4: Conduct under Section 8 of the Evidence
     Act:
24. Irrespective of the admissibility of the discovery, panchnama (Exh.18)
    and the recovery panchnama Exh. 21 and irrespective of the
    admissibility of the recovery of the clothes of the deceased on the
    statement of the accused, we find that the conduct of the appellant
    in leading the investigation team and the panchas and pointing out
    where the apparel of the deceased was hidden would be admissible.
    In this case PW-17, the Investigating Officer has clearly deposed
    that the accused showed willingness to show the place where he
    had thrown the clothes. PW-17, his team and the panchas reached
    by walking to the place as indicated by the accused. This Court in
    A.N. Venkatesh and another v. State of Karnataka (2005) 7 SCC
    714 relying on Prakash Chand v. State (Delhi Admn.), (1949) 3
    SCC 90 held as under:
          “9. By virtue of Section 8 of the Evidence Act, the conduct
          of the accused person is relevant, if such conduct influences
          or is influenced by any fact in issue or relevant fact. The
          evidence of the circumstance, simpliciter, that the accused
          pointed out to the police officer, the place where the
          dead body of the kidnapped boy was found and on their
          pointing out the body was exhumed, would be admissible
          as conduct under Section 8 irrespective of the fact whether
          the statement made by the accused contemporaneously
          with or antecedent to such conduct falls within the purview
          of Section 27 or not as held by this Court in Prakash
          Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979
          SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that
          the disclosure statement made by the accused-appellants
          (Exts. P-15 and P-16) is not admissible under Section 27
          of the Evidence Act, still it is relevant under Section 8.
[2024] 12 S.C.R.                                                           1085

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


          The evidence of the investigating officer and PWs 1, 2, 7
          and PW 4 the spot mahazar witness that the accused had
          taken them to the spot and pointed out the place where the
          dead body was buried, is an admissible piece of evidence
          under Section 8 as the conduct of the accused. Presence
          of A-1 and A-2 at a place where ransom demand was to
          be fulfilled and their action of fleeing on spotting the police
          party is a relevant circumstance and are admissible under
          Section 8 of the Evidence Act.”
     We take this as an additional link in the chain of circumstances.

     Circumstance No. 5: Matching of Blood Group
25. Blood group on the clothes of the deceased tallied with the blood
    group of the accused as per Exh.50, the Serological Analysis
    Report. PW-9 the father of the deceased identified the clothes
    worn by the deceased on the fateful day. PW-17 the Investigating
    Officer Gajendra Kumar has clearly deposed that the apparel of
    the deceased was recovered near the situs of the crime. PW-7 Dr.
    Kamlesh Kumar who medically examined the appellant deposed
    that samples of pubic hair, blood, saliva, semen and nails were
    obtained of the accused and he further deposed that the samples
    were sealed and the Muddamal was sent for further investigation
    through police constable to FSL, Surat. Coming back to PW-17,
    he deposed about receiving the sealed samples and keeping it in
    safe custody. Thereafter, he deposed that a forwarding note was
    prepared for analysis of the aforementioned Muddamal and the
    sealed samples to FSL, Surat and that a constable was deputed to
    submit the same to FSL, Surat. The receipt obtained was duly filed.
    The Biological and Serological Reports received from FSL, Surat
    were marked as Exh.49 and Exh.50 respectively. The Serological
    analysis clearly showed that the small trouser (leggings), the anal
    swab (semen) and the perianal swab (semen) had blood of group
    O. The accused had also blood group O. We are satisfied with
    the chain of custody as emerging from the evidence. The defence
    has a case that sample mark H mentioned in Exh.47 which is the
    forwarding letter to the forensic science laboratory has neither been
    analyzed in the biological analysis Exh.49 or in the serological
    analysis Exh.50 and hence tampering cannot be ruled out. The
    State has countered the submission by contending that sample
1086                                                      [2024] 12 S.C.R.

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     mark ‘H’ in Exh.47 is a Khaki cover and is not an item recovered
     from the accused and as such the State counsel contends that in
     all likelihood sample mark H was a cover in which all other samples
     were put. The matching of the blood group has occurred in sample
     F1 which is the anal swab (semen) and F2 perianal swab (semen).
     The blood group of the aforesaid semen was found to be O. It
     should be noted that the sample of semen of appellant along with
     blood and saliva in sample no. G1 to G4 also had blood group
     O. The judgment in Prakash Vs. State of Karnataka (2014) 12
     SCC 133 cited by the appellant also does not advance the case
     of the defence. It is clear from the facts of the case, that the blood
     sample therein was decomposed and its original grouping could
     not be determined. In any event, coupled with other circumstances
     indicated hereinabove, we are inclined to consider the matching of
     blood group as an additional link in the chain as far as the facts
     of this case is concerned.
26. The argument of Ms. Uttara Babbar, learned senior counsel is that
    no DNA test was carried out. No doubt, the DNA test was not carried
    out and it would have been better for the prosecution to have done
    the same. However, keeping the overall conspectus of the case
    in mind, we do not think that not conducting DNA test was fatal to
    the prosecution. We draw support from the judgment of this Court
    in Veerendra v. State of Madhya Pradesh, (2022) 8 SCC 668,
    wherein it was held as under:
          “53. In view of the nature of the provision under Section
          53-ACrPC and the decisions referred to, we are also of
          the considered view that the lapse or omission (purposeful
          or otherwise) to carry out DNA profiling, by itself, cannot
          be permitted to decide the fate of a trial for the offence of
          rape especially, when it is combined with the commission
          of the offence of murder as in case of acquittal only on
          account of such a flaw or defect in the investigation the
          cause of criminal justice would become the victim. The
          upshot of this discussion is that even if such a flaw had
          occurred in the investigation in a given case, the court has
          still a duty to consider whether the materials and evidence
          available on record before it, are enough and cogent to
          prove the case of the prosecution. In a case which rests
          on circumstantial evidence, the Court has to consider
[2024] 12 S.C.R.                                                         1087

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


          whether, despite such a lapse, the various links in the
          chain of circumstances form a complete chain pointing to
          the guilt of the accused alone in exclusion of all hypothesis
          of innocence in his favour.”
27. In view of the circumstances elucidated above, we do not feel the
    need to comment upon the admissibility of the discovery panchnama
    Exh.P.18 and the recovery panchnama Exh.P.21. Even eschewing
    the aspect of discovery under Section 27, we have found that
    other circumstantial evidence does exist pointing to the guilt of the
    appellant.

     Presumption under the POCSO Act
28. It is clearly established in evidence that the deceased was subjected
    to a brutal sexual assault. The injuries as evidenced in the postmortem
    report Exh.P.28 particularly injury no. 1 clearly indicate that the
    deceased was subjected to aggressive penetrative sexual assault.
    The injury on the prepuce of the penis of the accused along with
    the matching of the blood group coupled with other circumstantial
    evidence clearly constitute foundational facts for raising presumption
    under Sections 29 and 30 of the POCSO Act. Sections 29 and 30
    of the POCSO Act reads as under:
          “29. Presumption as to certain offences.—Where
          a person is prosecuted for committing or abetting or
          attempting to commit any offence under Sections 3, 5, 7
          and Section 9 of this Act, the Special Court shall presume,
          that such person has committed or abetted or attempted
          to commit the offence, as the case may be unless the
          contrary is proved.
          30. Presumption of culpable mental state:- (1) In any
          prosecution for any offence under this Act which requires
          a culpable mental state on the part of the accused, the
          Special Court shall presume the existence of such mental
          state but it shall be a defence for the accused to prove
          the fact that he had no such mental state with respect to
          the act charged as an offence in that prosecution.
          (2) For the purposes of this section, a fact is said to
          be proved only when the Special Court believes it to
1088                                                     [2024] 12 S.C.R.

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         exist beyond reasonable doubt and not merely when
         its existence is established by a preponderance of
         probability.”
29. It will be seen that presumption under Section 29 is available
    where the foundational facts exist for commission of offence under
    Section 5 of the POCSO Act. Section 5 of the POCSO Act deals
    with aggravated penetrative sexual assault and Section 6 speaks
    of punishment for aggravated penetrative sexual assault. Section 3
    of the POCSO Act defines what penetrative sexual assault is. The
    relevant Sections are extracted hereinbelow.
         “3. Penetrative sexual assault. - A person is said to
         commit “penetrative sexual assault” if-
         (a) he penetrates his penis, to any extent, into the vagina,
         mouth, urethra or anus of a child or makes the child to do
         so with him or any other person; or
         5. Aggravated penetrative sexual assault.— (i) whoever
         commits penetrative sexual assault causing grievous hurt
         or causing bodily harm and injury or injury to the sexual
         organs of the child; or
         (m) whoever commits penetrative sexual assault on a child
         below twelve years; or
         6. Punishment for aggravated penetrative sexual
         assault.—(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 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.]
30. The manner in which the appellant enticed the deceased child under
    the pretext of buying ice-cream in spite of being dissuaded by the
    aunt (PW-10) and without the consent of the lawful guardians also
    makes out an offence under Section 364 of IPC. The aggravated
[2024] 12 S.C.R.                                                     1089

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


     penetrative sexual assault clearly establishes offence under Section
     377 of IPC and Sections 4 and 6 of the POCSO Act. The appellant
     has not rebutted the presumption by adducing proof to the contrary.
31. For the reasons stated above, we are satisfied that the circumstances
    enumerated hereinabove are fully established; that the circumstances
    so established are consistent only with the hypothesis of the guilt
    of the accused and are not explainable by any other hypothesis;
    that the circumstances are conclusive in nature and further that the
    chain of circumstance is so complete as to point to the conclusion
    that the appellant is guilty of the offences charged. In view of the
    same, we uphold the conviction as imposed by the Trial Court and
    confirmed by the High Court.

     Sentence:
32. The Trial Court has imposed the sentence of death and the High
    Court has confirmed the same. It is time for us to draw up a balance
    sheet of the aggravating and mitigating circumstances to decide
    whether the case falls in the category of rarest of rare case. We
    also need to examine whether the sentence of life imprisonment is
    foreclosed and the possibility of reformation is completely ruled out.
33. Without doubt, the crime committed by the appellant was diabolic
    in character. He enticed the innocent child by tempting him with
    ice-cream and brutally sodomized and murdered the four-year old.
    The appellant also mercilessly strangulated the deceased. The post-
    mortem report clearly indicated that death was due to asphyxia by
    throttling.
34. On the mitigating side, the appellant was 24 years of age when the
    incident happened; he had no criminal antecedents; the appellant hails
    from a low socio-economic household as the Mitigation Investigation
    Report filed by Ms. Komal of Project 39A, pursuant to the order of
    this Court dated 05.10.2023 indicates. The mitigation report further
    indicates that experts have opined that the appellant is diagnosed with
    moderate intensity psychotic features and intellectual disability and
    that the appellant had in his early childhood contacted Tuberculosis
    Meningitis (TBM). The appellant, according to the report, maintains
    family ties with his 64-year-old mother who takes care of his 10 year
    old daughter. The appellant’s wife has deserted him.
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35. By an order of 05.10.2023, we also called for the conduct and
    behaviour of the appellant from the Superintendent of Vadodara
    Central Jail as well as a report on his mental health. The report from
    the Superintendent of Vadoara Jail indicates, that the behaviour of
    the appellant in prison is completely normal and that his conduct in
    jail is good. The report from the Hospital for Mental Health indicates
    that the appellant has no psychiatric problem at present. The report
    does indicate a feeling of remorse in the appellant. The appellant
    has contended that the projective test adopted by the Hospital for
    Mental Health has its limitations for reliability. Be that as it may.
36. Considering the overall facts and circumstances, we hold that the
    present is not a case where it can be said that the possibility of
    reformation is completely ruled out. The option of life imprisonment
    is also not foreclosed. The case does not fall in the category of rarest
    of rare case. We are of the opinion that ends of justice would be
    met if we adopt the path carved out in Swami Shraddananda Vs.
    State of Karnataka (2008) 13 SCC 767.
37. Even though the case of the appellant falls short of the rarest of rare
    category, considering the nature of the crime, we are strongly of the
    view that a sentence of life imprisonment which normally works out for
    14 years would be grossly disproportionate and inadequate. Having
    regard to the nature of the offence, a sentence of imprisonment for
    a prescribed period without remission would alone be proportionate
    to the crime and also not jeopardize the public confidence in the
    efficacy of the legal system.
38. This Court recently in Nawas Alias Mulanavas Vs. State of Kerala
    (2024) SCC OnLine SC 315, adverting to this aspect had the following
    to say :-
          “29. How much is too much and how much is too little?
          This is the difficult area we have tried to address here.
          As rightly observed, there can be no straitjacket formulae.
          Pegging the point up to which remission powers cannot be
          invoked is an exercise that has to be carefully undertaken
          and the discretion should be exercised on reasonable
          grounds. The spectrum is very large. The principle in
          Swamy Shraddananda (supra) as affirmed in V. Sriharan
          (supra) was evolved as the normally accepted norm of 14
          years was found to be grossly disproportionate on the lower
[2024] 12 S.C.R.                                                          1091

         Sambhubhai Raisangbhai Padhiyar v. State of Gujarat


          side. At the same time, since it is a matter concerning the
          liberty of the individual, courts should also guard against
          any disproportion in the imposition, on the higher side too.
          A delicate balance has to be struck. While undue leniency,
          which will affect the public confidence and the efficacy
          of the legal system, should not be shown, at the same
          time, since a good part of the convict’s life with freedom
          is being sliced away (except in cases where the Court
          decides to impose imprisonment till rest of the full life), in
          view of his incarceration, care should be taken that the
          period fixed is also not harsh and excessive. While by
          the very nature of the task mathematical exactitude is an
          impossibility, that will not deter the Court from imposing
          a period of sentence which will constitute “a just dessert”
          for the convict…..”
39. Applying this principle, we hold that a sentence of imprisonment
    for a period of 25 (twenty-five) years without remission would be ‘a
    just desert’.
40. The trial Court had sentenced the appellant to death under Section
    302 IPC, to simple imprisonment of 10 (ten) years and a fine of
    Rs.10,000/- for offence under Section 364 and to life imprisonment
    and a fine of Rs.10,000/- for offence under Section 6 of the POCSO
    Act. No separate sentences were awarded for offences punishable
    under Section 4 of the POCSO Act and Section 377 of IPC. The
    trial Court had directed that the accused should suffer all the above
    ordered punishments together. The High Court had confirmed the
    death sentence and dismissed the appeal of the appellant.
41. In view of what we have held hereinabove, while maintaining the
    conviction under Sections 302, 364, 377 of IPC and Sections 4
    and 6 of the POCSO Act, we set aside the sentence of death for
    the offence under Section 302 and substitute the same with that of
    rigorous imprisonment for a period of 25 (twenty-five) years without
    remission. We also order that the sentence imposed for offences
    under Section 364 IPC (10 years S.I. and Rs. 10,000/- fine) and
    Section 6 of the POCSO Act (life imprisonment and Rs.10,000/- fine)
    shall run concurrently with the sentence of rigorous imprisonment
    for a period of 25 years without remission, which we have presently
    ordered.
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42. The appeals shall stand partly allowed in the above terms. Considering
    the socio-economic condition of the accused on the facts of the
    present case, we set aside the fine amounts imposed.

     Special Leave Petition (Crl.) No. 9162 of 2021:
43. This Special Leave Petition arises out of an order of the High Court
    of Gujarat at Ahmedabad in R/Special Criminal Application No.18906
    of 2021 whereby the High Court denied parole to the petitioner.
44. In view of the judgment passed in Criminal Appeal (Arising out of
    SLP (Crl.) No. 9015-9016 of 2019, no orders are required to be
    passed in this Special Leave Petition. The Special Leave Petition is,
    accordingly, dismissed. However, the dismissal of the Special Leave
    Petition will not debar the petitioner from availing such remedies
    as are available under law and in accordance with our judgment
    rendered hereinabove.

     Result of the case: Appeals partly allowed.
                          Special Leave Petition dismissed.



     †
         Headnotes prepared by: Nidhi Jain