Supreme Court of India
SUNDER @ SUNDARARAJANversusSTATE BY INSPECTOR OF POLICE
- Citation
- 2013 INSC 74
- Decided
- 5 February 2013
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Court held that the kidnapping was proved, the presumption of murder under Section 106 applies, and the death sentence is justified, so the conviction and death penalty stand.
Summary
The appellant, Sunder @ Sundararajan, was convicted of kidnapping a seven‑year‑old boy for ransom and subsequently murdering him. The prosecution relied on eyewitness identification, phone‑call records, a confessional statement, and forensic evidence. The key issue was whether circumstantial evidence could establish the murder and whether the burden shifted to the kidnapper to prove the child’s release under Section 106 of the Evidence Act. The Supreme Court held that the kidnapping was proved, the presumption of murder follows when the kidnapper fails to show release, and the aggravating circumstances warranted the death penalty. Consequently, the conviction and death sentence were affirmed.
Issues considered
- Whether the circumstantial evidence is sufficient to prove the murder of the kidnapped child.
- Whether Section 106 of the Evidence Act shifts the onus to the kidnapper to prove the victim’s release.
- Whether the death penalty is justified under the 'rarest of rare' doctrine for kidnapping for ransom and murder of a child.
- Whether the conviction and sentence should be interfered with on any ground.
Legislation cited
- Indian Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 201, s. 302, s. 364A
Subjects
kidnapping for ransommurdercircumstantial evidenceSection 106death penaltyrarest of rare doctrineaggravating circumstancesIndian Penal CodeIndian Evidence Act
Judgment
[2013] 4 S.C.R. 25
SUNDER @ SUNDARARAJAN A
V.
STATE BY INSPECTOR OF POLICE
(Criminal Appeal Nos.300-301 of 2011}
FEBRUARY 5, 2013 .B
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
Penal Code, 1860- ss.364A, 302 and 201- Kidnapping
for ransom and murder - Of seven year old boy -
Circumstantial evidence - Conviction and death sentence by C
courts below - Held: Conviction as well as the sentence does
not call for interference - Kidnapping and demand of ransom
proved by witnesses - Factum of kidnapping having been
proved, the inference of consequential murder is liable to be
presumed in the absence of discharge of onus by the D
kidnapper to prove the release of the kidnapped - Accused
failed to prove the release of the deceased from his custody
- Thus in .the circumstances of the case, charge of murder
also proved ._ In view of various aggravating circumstances
and lack of any mitigating circumstance, award of death E
sentence justified - Evidence Act, 1872 - s. 106 - Sentence/
Sentencing - Death sentence. ·
Evidence Act, 1872 - s. 106 - Burden to prove - Shifting
of onus - ·in kidnapping and murder case - Held: Once F
factum of kidnapping p(OVed, onus would shift on the
kidnapper to establish the· release of the kidnapped from his
custody.
Appellant- accused alongwith another accused was
prosecuted for having kidnapped a 7 year old boy for G
ransom, and when the ransom was not paid, he killed the
child. PWs 2 and 3 was last seen with the appellant-
accused. PW-8 deposed that the appellant had called her
to take the mobile number of the mother of the deceased
25 H
26 SUPREME COURT REPORTS [2013] 4 S.C.R.
A (PW1) and thereafter he made ransom call on the same
number. Appellant-accused was also identified by two
witnesses in Tl Parade. Trial Court convicted the
appellant-accused u/ss.364A, 302 and 201 IPC and
awarded death sentence. Another accused was acquitted.
B High Court affirmed the conviction and also confirmed the
death penalty. Hence the present appeal.
Dismissing the appeals, the Court
HELD: 1.1. The accused-appellant had been identified
C through cogent evidence as the person who had taken
away the deceased when he disembarked from school
van on the date of the incident. The factum of kidnapping
of the deceased by the accused-appellant, thereto.re,
stands duly established. [Para 24] [46-G-H; 47-A]
D
1.2. Having proved the factum of kidnapping, the
inference of the consequential murder of the kidnapped
person, is liable to be presumed. Once the person
concerned has been shown as having been. kidnapped,
E the onus would shift on the kidnapper to establish how
and when the kidnapped individual came to be released
from his custody. In the absence of any such proof
produced by the kidnapper, it would be natural to infer/
presume, that the kidnapped person continued in the
F kidnapper's custody, till he was eliminated. The instant
conclusion would also emerge from Section 106 of the
Evidence Act, 1872. [Para 26] [48-A-C]
1.3. In the facts and circumstances of the present
case, there is sufficient evidence on the record on the
G basis whereof even the factum of murder of the deceased
at the hands of the accused-appellant stands
established. In the facts and circumstances of this case,
it has been duly established, that the deceased was
kidnapped by the accused-appellant; the accused-
H appellant was not able to produce any material on the
SUNDER@ SUNDARARAJAN v. STATE BY INSPECTOR 27
OF POLICE
record to show the release of the deceased from his A
custody. Section 106 of the Evidence Act, 1872 places the
onus on him. In the absence of .any such material
produced by the accused-appellant, it has to be
· accepted, that the custody of the deceased had remained
with the accused-appellant, till he was murdered. The B
motive/reason for the accused-appell~nt, for taking the
extreme step was, that ransom as demanded by him, had
not been paid. [Para 27] [48-G-H; 49-A-B]
1.4. The accused-appellant had made a confessional C
statement in the presence of PW13 stating that he had
strangulated the deceased to death, whereupon his body
was put into a gunny bag and thrown into a particular
tank. It was thereafter, on the pointing out of the accused-
appellant, that the body of the deceased was recovered
from that tank. It was found in a gunny bag, as stated by D
the accused-appellant. PW12, the doctor concluded after
holding the post-mortem examination of the dead body
of the deceased, that he had died on account of
suffocation, prior to his having been drowned. The
instant evidence clearly nails the accused-appellant as E
the perpetrator of the murder of the deceased. Moreover,
the statement of PW13 further revealed that the school
bag, books and slate of the deceased were recovered
from the residence of the accused-appellant. These
articles were confirmed by PW1 as belonging to the F
deceased. In view of these factual and legal position the
prosecution had produced sufficient material to establish
not only the kidnapping of the deceased, but also his
murder at the hands of the accused-appellant. [Para 28]
~~~ G
Sucha Singh vs. State of Punjab 2001 (4) SCC 375:
2001 (2) SCR 644 - relied on.
Sharad Birdhichand Sarda v. State of Maharashtra 1984
(4) SCC 116: 1985 (1) SCR 88; Tanviben PankajKumar H
28 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Divetia vs. State of Gujarat 1997 (7) SCC 156: 1997 (1)
Suppl. SCR 96; - referred to.
2. The accused-appellant is guilty of two heinous
offences, which independent of one another, provide for
8 the death penalty. The accused caused the murder of
child of 7 years. There was no previous enmity between
the parties. There was no grave and sudden provocation,
which had compelled the accused to take the life of an
innocent child. The murder of a child, in such
C circumstances makes this a case of extreme culpability.
On account of the non-payment of ransom, a minor
child's murder was committed. This fact demonstrates
that the accused had no value for human life. This too
demonstrates extreme mental perversion not worthy of
human condonation. The manner in which the child was
D murdered, and the approach and method adopted by the
accused, disclose the traits of outrageous criminality in
the behaviour of the accused. This approach of the
accused reveals a brutal mindset of the highest order. All
the aforesaid aggravating circumstances are liable to be
E considered in the background of the fact that the murder
was commi~ed, not of a stranger, but of a child with whom
the accused was acquainted. This conduct of the
accused-appellant, places the facts of this case in the
abnormal and heinous category .. The choice of
F kidnapping the particular child for ransom, was well
planned and consciously motivated. Purposefully killing
the sole male child, has grave repercussions for the
parents of the deceased. Agony for parents for the loss
of their only male child, who would have carried further
G the family lineage, and is expected to see them through
their old age, is unfathomable. Extreme misery caused to
the aggrieved party, certainly adds to the aggravating
circumstances. As against the aforesaid aggravating
· circumstances, not a single mitigating circumstance was
H pointed out by the accused. Therefore, the death penalty
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 29
OF POLICE
imposed upon the accused-appellant by the High Court A
is affirmed. [Paras 30 and 31] (63-B-C & D-H; 64-B-H]
Vikram Singh and Ors. vs. State of Punjab 2010 (3) SCC
56: 2010 (2) SCR 22 - relied on.
Haresh Mohandas Rajput vs. State of Maharashtra 8
2011(12) SCC 56: 2011 (14) SCR 921; Ramnaresh and Ors.
vs. State of Chhattisgarh 2012 (3) SCR 630: 2012 (4) SCC
257; Brajendra Singh vs. State of M.P. 2012 (4) SCC 289:
2012 (3) SCR 599 - referred to.
c•
Case Law Reference:
1985 (1) SCR 88' referred to Para 19
1997 (1) Suppl. SCR 96 referred to Para 19
2001 (2) SCR 644 relied on
D
Paras 19, 26
2011 (14) SCR 921 referred to Para 29
2012 (4) sec 257 referred to Para 29
2012 (3) SCR 599 referred to ·Para 29 E
2010 (2) SCR 22 · relied on Para 31
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 300-301 of 2011.
F
From the Judgment & Order dated 30.09.2010 of the High
Court of Judicature at Madras in R. T. No. 2 of 2010 and Crl. A.
No. 525 of 2010.
K.K. Mani, Abhishek Krishna for ~he Appellant. ;_,_~ G
Yogesh Kanna, A. Santha Kumaran, S. Thananjayan for the
• #
Respondent.
The Judgment of the Court was delivered by
H
30 SUPREME COURT REPORTS [2013] 4 S.C.R.
A JAGDISH SINGH KHEHAR, J. 1. On 27.7.2007 Suresh
aged 7 years, who lived with his mother Maheshwari (PW1) at
Karkudal village in Vridhachalam Taluk, left his residence in the
morning as usual, at about 8 a.m. to attend his school at
Vridhachalam. Suresh was a class II student at Sakthi
B Matriculation School at Vridhachalam. Each morning, he along
with other students from the same village, would leave for
school, in a school van at about 8.00 a.m. The same school
van would bring them back in the afternoon at about 4.30 p.m.
On 27.7.2009, Suresh did not return home. Maheshwari (PW1)
c his mother got worried and made inquiries. She inquired from
Kamali (PW2), and from another student from the same village,
who used to travel to school in the same van with Suresh.
Kamali (PW2) told Maheshwari (PW1) that a man was waiting
alongside a motorcycle when the school van returned to
0 Karkudal village on 27.7.2009. The man informed Suresh that
his mother and grandmother were not well. According to Kamali
(PW2), the man told Suresh, that he had been asked by
Maheshwari (PW1) to bring Suresh to the hospital. Based on
the aforesaid assertions, Suresh had accompanied the man on
E his motorcycle. After having inquired from Kamali (PW2),
Maheshwari (PW1) sought information from another student
Malai, but could not gather any positive information from her.
Thereafter, she was informed by Kurinji Selvan (PW3)
belonging to the same villag~, that he had seen Suresh
disembarking from the Sakthi school van on 27. 7.2009 at
F about 4.30 p.m. He also told her, that a man standing alongside
a motorcycle, had called out to Suresh and had taken Suresh
along with him on his motorcycle. Kurinji Selvan (PW3) advised
Maheshwari (PW1) to approach the police. Maheshwari (PW1)
accordingly proceeded to Police Station, Kammapuram, to
G register a complaint. The said complaint was registered at 7
p.m. on the date of occurrence, i.e., on ?7.7.2009 itself. Based
thereon, Crime no.106 of 2009 was registered under Section
, 366 of the Indian Penal Code.
~ 2. At about 9.30 p.m. on the same day, i.e., on 27.7.2009
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 31
OF POLICE [JAGDISH SINGH KHEHAR, J.]
Maheshwari (PW1) received a call on her mobile phone. The A
caller identified himself as Shankar. The caller demanded a
ransom of Rs.5 lakhs for the release of Sure.sh. Immediately
after the receipt of the aforesaid call, Maheshwari (PW1) again
rushed to the Police Station Kammapuram, and informed the
Station House Officer about the call received by her. B
3. The investigating officer called Kasinathan (PW13), the
then Village Administrative Officer of village Karkudal, Taluka
Vridhachalam, to the Vridhachalam Police Station. Having taken
permission from the Tehsildar, Kasinathan (PW13) and his C
assistant went to Vridhachalam. From there, they went to the
house of the accused, and in the presence of Kasinathan
(PW13), the two accused were apprehended. In the presence
of Kasinathan (PW13), the accused made confessional
statements, leading to the recovery of three mobile phone sets,
two of which had sim cards. The accused also acknowledged, D
having strangulated Suresh when ransom was not paid for his
release. The accused also confessed, that they had put the
dead body of Suresh in a gunny bag, and thereafter, had thrown
it in the Meerankulam tank. Based on the aforesaid
confessional statement, in the presence of Kasinathan (PW13), E
and on the pointing out of the accused, the dead body of Suresh
was retrieved by personnel belonging to the fire service squad.
The dead body of Suresh was found in a gunny bag which had
been fished out of the above-mentioned tank. The accused also
made statements to the police, whereupon the school bag, F
books and slate _belonging to the deceased Suresh came to
be recovered1 from the residence of the accused, in the
I
presence of Kasinathan (PW13).
4. During the course of the investigation emerging out of G
the mobile phones recovered from the accused, the police
identified Saraswathi (PW8), who affirmed that she had
received a phone call from a person who called himself
Shankar, on 27.7.2009 at about 9 p.m. She also disclosed, that
the caller had enquired from her about the phone number of H
32 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Maheshwari (PW1). Saraswathi (PW8) had required the caller,
to ring her up after sometime. She had received another call
from Shankar and had furnished the mobile phone number of
Maheshwari (PW1) to him. Consequent upon the gathering of
the above information, the accused were charged under
B Sections 364-A (for kidnapping for ransom), 302 (murder) and
201 (for having caused disappearance of evidence) of the
Indian Penal Code. The trial of the case was committed to the
Court of Session, whereupon, the ~rosecution examined 19
prosecution witnesses. The prosecution also relied on 18
c exhibits and 10 material objects. After the statements of the
prosecution witnesses had been recorded, the statements of
the accused were recorded under Section 313 of the Code of
Criminal Procedure. Despite having been afforded an
opportunity, the accused did not produce any witness in their
0 own defence.
5. On the culmination of the trial, the accused-appellant
Sunder @ Sunderajan was found guilty and convicted of the
offences under Sections 364-A, 302 and 201 of the Indian
Penar Code by the Sessions Judge, Mahila Court, Cuddalore.
E For the first two offences, the accused-appellant was awarded
the death penalty along with fine of Rs.1,000/- each. For the
third offence, the accused-appellant was awarded 7 years
rigorous imprisonment along with a fine of Rs.1,000/-. Vide RT
no.2 of 2010, the matter was placed before the High Court of
F Judicature at Madras (hereinafter referred to as, the High Court),
for confirmation of the death sentence imposed on the accused-
appe 11 ant. The accused-appellant independently of the
aforesaid, filed Criminal Appeal no.525 of 2010 before the
High Court, for assailing the order of his conviction. Vide its
G common judgment dated 30.9.2010, the High Court confirmed
the death sentence imposed on the accused-appellant and
simultaneously dismissed the appeal preferred by Sunder @
Sundararajan. Thus viewed, the judgment rendered by the
Sessions Judge, Mahila Court at Cuddalore dated 30.7.2010
H was affirmed by the High Court vis-a-vis the accused-appellant.
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 33
OF POLICE [JAGDISH SINGH KHEHAR, J.]
6. The Court of Session acquitted Balayee, accused no. A
2. It is not a matter of dispute before us, that the acquittal of
Balayae, was not contested by the prosecution by preferring
any appeal. It is therefore apparent, that for all intents and
purposes accused no.2 stands discharg~d from the matter on
hand. B
7. It is not necessary to deal with the statements of all the
witnesses, in so far as the instant controversy is concerned.
Even though the prosecution had rested its case, oTI
circumstantial evidence alone, it would be necessary to refer C
to the statements of a few witnesses .so as to deal with the
submissions advanced on behalf of the accused-appellant. The
deposition of the relevant witnesses is accordingly being
summarized hereinafter.
8. Maheshwari (PW1) was the mother of the deceased D
Suresh. It was Maheshwari (PW1) who had lodged the First
Information Report at Police Station, Kammapuram, on
27.7.2009. In her statement before the trial court, she asserted
that she had four children, three daughters and one son. Suresh
was her only son. She deposed, that she was running all E
domestic affairs of her household at Village Karkudal in Taluk
Vridhachalam by herself, as her husband had gone abroad to
earn for the family. She affirmed, that she was also engaged
in agriculture. She also asserted, that her son Suresh was
studying in Class II at the Sakthi Matriculation School, F
Vridhachalam. He used to go to school, by the school van, and
used to return along with other children from school, at about
4.30 p.m. As usual, on 27.7.2009, he had gone to school in the
school van at about 8.00 a.m. but since he had not returned at
4.30 p.m., she had gone out to search for him. She had G
enquired from other students who used to travel in the same
school van along with her son. Kamali (PW2) informed her that
her son Suresh had got down from the school van on
27.7.2009, in her company. Kamali (PW2) also informed her,
that as soon as Suresh got down from the school van on H
34 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 27.7.2009, the accused-appellant who was standing near the
neem tree along side his motorcycle, called Suresh by his
name, and told him that his mother and, grandmother were ill,
and had required him to bring Suresh to them, on his
motorcycle. At the man's asking, according to Kamali (PW2),
B Suresh sat on the man's motorcycle, and was taken away.
Maheshwari (PW1) then enquired from Malai, another student
who used to travel by the same school van. Malai, however,
did not remember about the presence of Suresh. Finally,
Maheshwari (PW1) was told by Kurinji Selvan (PW3), a co-
C villager living in Karkudal village, that he had seen Suresh
getting down from the school van and being taken away by a
man on his motorcycle. Kurinji Selvan (PW3) advised
Maheshwari (PW1 ), to report the matter to the police. Based
on the aforesaid inputs, Maheshwari (PW1) deposed, that she
0 had immediately gone to Police Station, Kammapuram, and
had lodged a report at 7.00 p.m. Having returned to her village,
Maheshwari (PW1) claim~ to have received a call on her
mobile phone at about 9.30 p.m. According to her, the caller
was the accused-appellant. The accused-appellant demanded
E a sum of Rs.5,00,000/- for the safe release of her son Suresh.
Consequent upon the receipt of the aforesaid phone call,
Maheshwari (PW1) deposed, that she. had returned to the
Police Station, Kammapuram, to apprise the police of the
aforesaid development. According to Maheshwari (PW1 ), the
police informed her on 30.7.2009, that the body of her son had
F been recovered from a lake and had been brought to
Vridhachalam Hospital. In her statement, she affirmed having
identified the clothes, shoes and socks as also neck tie of her
son Suresh. She also identified his school bag w~ich had the
inscription 'JAYOTH'. She also identified his books as also the
G black colour slate having a green colour beeding around it, as
that of her son Suresh. She also identified the body of her son
when she set her eyes on him at Vridhachalam Hospital. During
her cross-examination, she deposed that she had not
approached Kurinji Selvan (PW3). It was Kurindi Selvan
H (PW3), who had approached her on seeing her crying. When
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 35
OF POLICE [JAGDISH SINGH KHEHAR, J.]
she disclosed to Kurinji Selvan (PW3) about he,r missing son, A
he had informed her that he had seen her son Suresh
disembarking from the school van whereafter, Suresh had gone
away with a man on a motorcycle.
;
9. Kamali entered appearance before the trial court as
B
PW2. She asserted that she was (at the time of her deposition)
studying in the 6th standard at Sakthi Matriculation School,
Vridhachalam. She affirmed that Suresh, the deceased, was
known to her. She deposed that on 27. 7.2009, she had gone
to her school in the school van, wherein there were other
children from the village including Suresh. She also deposed C
that she along with Suresh returned to Karkudal Village on
27.7.2009, at about 3.00 p.m. in the school van. Suresh had
got down from the school van, along with the other children.
When the van had arrived at the village, she had seen a man
standing along side a motorcycle. After Suresh got down from D
the school van, the man beckoned at Suresh. He informed
Suresh, that his mother and grandmother were ill, and that
Suresh's mother had asked him, to bring Suresh to the hospital.
She deposed that when she reached her house, Maheshwari
(PW1) had inquired about the whereabouts of her son, from her. E
She had informed Maheshwari (PW1) the factual position as
narrated above. She also asserted, that she was questioned
by the police during the course whereof she had informed the
police, that she could identify the accused. She acknowledged
that an identification parade was conducted by the Judicial F
Magistrate at Cuddalore Central Prison, where she had
identified the accused-appellant, namely, the man who had
taken Suresh on the motorcycle on 27.7.2009, when they had
returned from school.
10. Kurinji Selvan deposed before the trial court as PW3. G
He stated that Maheshwari (PW1), Kamali (PW2), as also the
deceased Suresh, were known to him. He stated that on
27.7.2009 at about 4.30 p.m. when he was going towards his
paddy field on his motorcycle, the Sakthi School van had
H --
36 SUPREME COURT REPORTS [2013] 4 S.C.R.
A dropped the school children of his village, at the corner of the
river path. He had also stopped his motorcycle, there. He had
seen the accused-appellant standing near the neem tree along
side a motorcycle. He identified the nature, as also, the colour
of the clothes worn by the accused-appellant. He confirmed, that
B the accused-appellant had called out to Suresh by his name,
whereupon, Suresh had gone up to him. He deposed, that he
had seen Suresh being taken away by the man, on his
motorcycle. He further deposed, that when he was returning
from his paddy field at about 5.30 p.m., he had seen
c Maheshwari (PW1) weeping. When he enquired from her, she
told him, that her son was missing. Kurinji Selvan (PW3)
affirmed that he had informed her, that a man had taken her
son away on a motorcycle. He also advised Maheshwari (PW1)
to lodge a report with the police. He further deposed, that the
body of a child was recovered on 30.7.2009 and he was
D informed about the same at about 8.00 a.m. The body had been
recovered from Meerankulam tank in Vuchipullaiyar Vayalapadi
village. Having received the aforesaid information, he had
proceeded to the. Meerankulam tank where he identified
Suresh, to the Inspector. He further deposed, that an
E identification. parade was conducted at the Cuddalore Central
Prison, in presence of the Judicial Magistrate. He affirmed, that
he had identified the accused-appellant as the person who had
taken Suresh, when Suresh had disembarked from the school
van on 27.7.2009. He also asserted, that he had identified the
F motorcycle, when he was shown two motorcycles, as the one
on which the accused-appellant had taken Suresh away on
27.7.2009.
11. The statement of M. Santhanam was recorded as
G PW6. He affirmed that he was the Correspondent and Principal
of Sakthi Matriculation School. He also affirmed that Suresh was
studying in his school in the 2nd standard. He confirmed that
Suresh had attended the school on 27.7.2009. He produced
the attendance register, wherein the presence of Suresh was
H duly recorded.
SUNDER@ SUNDARARAJAN v. STATE BY INSPECTOR 37
OF POLICE [JAGDISH SINGH KHEHAR, J.]
12. Saraswathi (PW8) appeared before the trial court and A
deposed, that on 27.7.2009, she had received a call on her
mobile phone bearing No.9943020435 at about 9.00 p.m. The
caller identified himself as Sankar and asked for the phone
number of Maheshwari (PW1). She stated that she had
informed the caller, to ring her after a little while, by which time B
she would retrieve the phone ntlmber of Maheshwari (PW1).
Accordingly, the caller.again spoke to her on her mobile phone,
whereupon, she had conveyed the phone number of
Maheshwari (PW1 ), to him.
13. A. Bashir, Judicial Magistrate No.1 appeared before C
the trial court as PW10. He deposed that he had gone to the
Cuddalore Central Prison on 25.8.2009 to conduct the
identification parade. He had taken his office assistant along
with him. He had selected co-prisoners similar to the accused-
appellant to participate in the identification parade. Persons D
selected by him were of the same height, weight, colour and
beared. Out of these eight persons selected by him, both
Kamali (PW2) and Kurinji Selvan (PW3) had identified the
accused-appellant, in three different combinations.
E
14. Su nil (PW11 ), working as legal officer of the Vodafone
Company, during the course of his deposition before the trial
court affirmed, that he was required by the Inspector of Police,
Vridhachalam, to provide him with the details of Vodafone cell
phone numbers 9946205961 and 9943020435 for the period F
from 25.7.2009 to 28.7.2009. He affirmed that he had taken
the aforesaid details from the computer and given them to the
Inspector of Police. He confirmed that three calls had been
made from sim number 9946205961, "upto 9.39 p.m. on
27.7.2009. He also affirmed, that phone number 9943020435 G
was in the name of Saraswathi (PW3).
15. Dr. Kathirvel appeared before the trial court as PW12.
He had conducted the post mortem on the dead body of
Suresh on 30.7.2009. The dead body was identified by the
police Co.nstable, in the mortuary. He asserted that the body H
38 SUPREME COURT REPORTS [2013] 4 S.C.R.
A was in a decomposed state. According to his analysis, the child
had died ,within 36 to 48 hours prior to the post mortem
examination. According to the opinion tendered by him,
suffocation was the cause of the death of the child. And that,
the child, in his opinion, had died prior to his being drowned in
B the water. -
16. Kasinathan (PW13), the Village Administrative officer,
Karkudal, while appearing before the trial court confirmed, that
he was known to the accused-appellant. He .deposed that on
30. 7.2009, he was summoned from his residence by the
C Inspector of Police, Vridhachalam at about 4.30 p.m.
Thereupon, he had gone to the Vridhachalam Police Station.
The Inspector of Police had required Kasinathan (PW13) to be
a police wjtness, whereupon, he had obtained permission from
the Tahsildar, for being a police witness. He was taken to the
D house of the accused-appellant in a police jeep. They reached
his house at 7.00 a.m. on 30.7.3009. As soon as the accused
saw the police jeep, both of them fled from the spot. Whilst
running away, the accused-appellant had fallen down, and
thereupon, the police personnel had apprehended him. Women
E constables had apprehended Balayee (A-2). The accused-
appellant had made a confessional statement to the police in
the presence of Kasinathan (PW13). The accused-appellant
had handed over three mobile phones to the Police Inspector
in his presence. Only two of the said phones had sim cards.
F The accused-appellant had also produced the motorcycle, on
which he had taken away Suresh, when he had got down from
the school van at village Karkudal on 27.7.2009. The accused-
appellant also produced a school bag containing a slate and
two books from his residence in his presence. Kasinathan
G (PW13) admitted having signed the "mahazar" when recoveries
of the aforesaid articles were made from the accused-appellant
on 30.7.2009. Based on the information furnished by the
accused-appellant, Kasinathan (PW13) acknowledged, that he
had gone to the Meerankulam tank in Vayalapadi village, in the
H
police jeep, along with the other police personnel. When the
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 39
OF POLICE [JAGDISH SINGH KHEHAR, J.]
gunny bag containing the dead body of the child was retrieved A
from the tank, the accused-appellant had identified the same
as Suresh. He had also signed on the "mahazar" prepared on
the recovery of the gunny bag, containing the dead body of
Suresh.
B
17. It is not necessary to refer to the statement of other
witnesses except the fact that the call details produced by Sunil
(PW11) indicate that two calls were made from the Mobile
Phone recovered from the accused- appellant to Saraswathi
(PW8). The said calls were made at 9.22 p.m. and 9.25 p.m.
respectively. The call details further indicate that from the same C
number, a call was made to Maheshwari (PW1) at 9.39 p.m.
18. It is on the basis of the aforesaid oral and documentary
evidence that we shall endeavour to determine the issues
canvassed at the hands of the learned counsel for the appellant. D
19. The solitary contention advanced by the learned
counsel for the appellant on the merits of the case was, that
the prosecution had ventured to substantiate the allegations
levelled against the appellant only on the basis of circumstantial E
evidence. It was sought to be pointed out, that in the absence
of direct evidence, the slightest of a discrepancy, depicting the
possibility of two views would exculpate the accused of guilt,
on the basis of benefit of doubt. Before dealing with the
circumstantial evidence relied upon against the appellant,
learned counsel invited our attention to the legal position F
declared by this Court, on the standard of proof required for
recording a conviction, on the basis of circumstantial evidence.
In this behalf, learned counsel for the appellant first of all placed
reliance on Sharad Birdhichand Sarda Vs. State of
Maharashtra, (1984) 4 SCC 116. It was pointed out, that in the G
instant judgment this Court laid down the golden principles of
standard of proof, required in a case sought to be established
on the basis of circumstantial evidence. In this behalf reliance
. was placed on the following observations:-
H
40 SUPREME COURT REPORTS [2013] 4 S.C.R.
A "152. 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
8 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
c proved' and 'must be or should be proved as was
held by this Court in Shivaji Sahebrao Bobade v.
State of Maharashtra : 1973CriLJ 1783 where the
following observations were made:
D 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. -:
E (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.
F (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
G (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.
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 41
, OF POLICE [JAGDISH SINGH KHEHAR, J.]
153. These five golden principles, if we may say so, A
constitute the panchsheel of the proof of a case
based on circumstantial evidence."
Learned counsel for the appellant thereafter placed reliance on
thedecision rendered in Tanviben Pankajkumar Divetia Vs. 8
State of Gujarat, (1997) 7 SCC 156. He placed reliance on
the following observations recorded therein:-
"45. The principle for basing a conviction on the basis
of circumstantial evidences has been indicated in
a number of decisions of this Court and the law is C
well settled that each and every incriminating
circumstance must be clearly established by
reliable and tlinching evidence and the
circumstances so proved must form a chain of
events from which the only irresistible conclusion D
about the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is
possible. This Court has clearly sounded a note of
caution that in a case depending largely upon
circumstantial evidence, there is always a danger E
that conjecture or suspicion may take the place of
legal proof. The Court must satisfy itself that
various circumstances in the chain of events have
been established clearly and such completed chain
of events must be such as to rule out a reasonable F
likelihood of the innocence of the accused. It has
also been indicated that when the important link
goes, the chain of circumstances gets snapped
and the other circumstances cannot in any manner,
establish the guilt of the accused beyond all G
reasonable doubts. It has been held that the Court
has to be watchful and avoid the danger of allowing
the suspicion to make the place of legal proof for
some times, unconsciously it may happen to be a
short step between moral certainty and legal proof. H
42 SUPREME COURT REPORTS [2013] 4 S.C.R.
A It has been indicated by this Court that there is a
long mental distance between 'may be true' and
'must be true' and the same divides conjectures
from sure conclusions. (Jaharlal Das v. State of
Orissa : 1991 3 SCC 27)
8
46. We may indicate here that more the suspicious
circumstances, more care and caution are required
to be taken otherwise the suspicious
circumstances may unwittingly enter the
adjudicating thought process of the Court even
c though the suspicious circumstances had not been
clearly established by clinching and reliable
evidences. It appears to us that in this case, the
decision of the Court in convicting the appellant has
been the result of the suspicious circumstances
D entering the adjudicating thought process of the
Court."
Learned counsel also placed reliance on Sucha Singh Vs.
State of Punjab, (2001) 4 SCC 375. The instant judgment was
E relied upon in order to support the contention, that
circumstantial evidence could not be relied upon, where there
was any vacuum in evidence. It was pointed out therefrom, that
this Court has held, that each aspect of the criminal act alleged
against the accused, had to be established on the basis of
F material of a nature, which would be sufficient to lead to the
inference that there could be no other view possible, than the
one arrived at on the basis of the said circumstantial evidence.
In this behalf, learned counsel for the appellant placed reliance
on the following observations recorded in the afore-cited
G judgment.
"19. Learned senior counsel contended that Section
106 of the Evidence Act is not intended for the
purpose of filling up the vacuum in prosecution
evidence. He invited our attention to the
H observations made by the Privy Council in Attygal/e
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 43
OF POLICE [JAGDISH SINGH KHEHAR, J.]
Vs. R AIR 1936 PC 169, and also in Stephen A
Seneviratne vs. The King: AIR 1936 PC 289. In
fact the observations contained therein were
considered by this Court in an early decision
authored by Vivian Bose, J, in Shambhu Nath
Mehra vs. State of Ajmer, AIR 1956 SC 404. The B
statement of law made by the learned Judge in the
aforesaid decision has been extracted by us in
State of West Bengal vs. Mir Mohammad Omar,
2000 (8) sec 382. It is useful to extract a further
portion of the observation made by us in the c
aforesaid decision:
"33. Presumption of fact is an inference as to the
existence of one fact from the existence of some
other facts, unless the truth of such inference is
0
disproved. Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved facts, the court exercises a process of
reasoning and reaches a logical conclusion as the E
most probable position. The above principle has
gained legislative recognition in India when Section
114 is incorporated in the Evidence Act. It
empowers the court to presume the existence of any
fact which it thinks likely to have happened. In that F
process the court shall have regard to the common
course of natural events, human conduct etc. in
relation to the facts of the case."
20. We pointed out that Section 106 of the Evidence G
Act 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 prosecution has succeeded in proving
facts for which a reasonable inference can be H
44 SUPREME COURT REPORTS [2013] 4 S.C.R.
A drawn regarding the existence of certain other facts,
unless the accused by virtue of special knowledge
regarding such facts failed to offer any explanation
which might drive the court to draw a different
inference."
B
20. Based on the aforesaid judgments, the first contention
advanced on behalf of the accused-appellant was, that there
was no material produced by the prosecution to establish the
factum of the commission of the murder of the deceased
C Suresh (at the hands of the accused-appellant). According to
the learned counsel, the aforesaid vacuum could not be filled
up on the basis of any presumption.
21. We have considered the first contention advanced by
the learned counsel for the appellant, on the basis of the
D contention noticed in the foregoing paragraph. In the veiled
submission advanced in the hands of the learned counsel for
the appellant, we find an implied acknowledgement, namely,
that learned counsel acknowledges, that the prosecution had
placed sufficient material on the record of the case to
E substantiate the factum of kidnapping of the deceased Suresh,
at the hands of the accused-appellant. Be there as it may,
without drawing any such inference; we would still endeavour
to determine, whether the prosecution had been successful in
establishing the factum of kidnapping of the deceased Suresh,
F at the hands of the accused-appellant. In so far as the instant
aspect of the matter is concerned, reference may first be made
to the statement of Saraswathi, PW-8 wherein she affirmed that
on 27.7.2009, at about 9 p.m., when she was at her residence,
she had received a call on her mobile phone bearing number
.G 9943020435. The caller identified himself as Shankar. She
deposed, that the caller had inquired from her about the phone
number of Maheshwari (PW1). She stated, that she had
responded to the said Shankar by asking him to call her after
sometime, and in the meanwhile, she (Saraswathi) would gather
the phone number of Maheshwari (PW1 ). Soon after the first
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 45
OF POLICE [JAGDISH SINGH KHEHAR, J.]
call, Saraswathi (PW8) testified, that she received a second A
call from the same person. On this occasion, Saraswathi (PW-
8) acknowledged having provided the caller with the mobile
phone number of Maheshwari (PW1 ). Through independent
evidence the prosecution was in a position to establish that the
first of the aforesaid two calls, were received by Saraswathi B
(PW8) at 9.22 p.m., and the second one at 9.25 p.m. The caller,
on having obtained the mobile phone number of Maheshwari
(PW1) then called her (Maheshwari - PW1) on the mobile
phone number supplied by Saraswathi (PW8). On the basis of
independent evidence the prosecution has also been able to c
establish, that Maheshwari, (PW1) received the instant phone
call at 9.39 p.m., from the same phone number from which
Saraswathi, PW-8 had received two calls. In her statement,
Maheshwari (PW1) asserted, that the caller demanded a
ransom of Rs.5,00,000/- for the safe return of her son, Suresh. 0
At this juncture, as per her statement, Maheshwari (PW1) again
visited the police station to apprise the police of the said
development. The aforesaid material, was one of the leads,
which the police had adopted in identifying the accused-
appellant.
E
22. Beside the aforesaid, the prosecution placed reliance
on the deposition of Kamali (PW2), for identifying the appellant
as the kidnapper of the deceased, Suresh. In her statement
Kamali (PW-2) affirmed, that she along with the deceased
Suresh had returned to their village Karkudal on 27.7.2009 at F
about 4.30 p.m. in the school van. When they alighted from the
school van, as per the deposition of Kamali (PW2), the
accused- appellant was seen by her, standing besides his
motor-cycle. The accused- appellant, as per the testimony of
Kamali (PW2), had gestured towards Suresh with his hand. The G
deceased Suresh and Kamali (PW2) had accordingly gone to
the accused-appellant. The accused-appellant had told Suresh,
that his mother and grandmother were unwell, and he had been
asked by his mother to bring him (Suresh) to the hospital.
Thereafter, according to Kamali (PW2), the accused-appellant H
46 SUPREME COURT REPORTS [2013] 4 S.C.R.
A had taken away the deceased Suresh, on his motor-cycle. It
would be relevant to indicate that Kamali (PW2) duly identified
the accused-appellant in an identification parade, conducted
under the supervision of A. Bashir, Judicial Magistrate (PW10),
on 25.8.2009 at Cuddalore Central Prison. According to the
B testimony of A. Bashir, Judicial Magistrate, Kamali PW-2
correctly identified the accused- appellant. The aforesaid
evidence was the second basis of identifying the accused-
appellant as the person, who had kidnapped the deceased
Suresh.
c 23. The deposition of Kurinji Selvan (PW3) has already
been narrated hereinabove. Kurinji Selvan (PW3) had seen
Suresh disembarking from the school van on 27.7.2009 at
about 4.30 p.m., when the said van had returned to village
Karkudal. Kurinji Selvan (PW3) affirmed, that he had also seen
D the accused-appellant waiting for the arrival of the school van
under a neem tree alongside his motorcycle. Kurinji Selvan
(PW3) also deposed, that he had seen the accused-appellant
taking away Suresh, on his motorcycle. On the date of the
incident itself, he had informed Maheshwari (PW1 ), that Suresh
E had been taken away by a man on his motorcycle. In the same
manner as Kamali (PW2) had identified the accused-appellant
in an identification parade, Kurinji Selvan (PW3) had also
participated in the identification parade conducted at
Cuddalore Central Prison on 25.8.2009. He had also identified
F the accused-appellant in the presence of the Judicial
Magistrate. The statement of Kurinji Selvan (PW3) constitutes
the third basis of identifying the accused-appellant as the man
who had taken away Suresh on his motorcycle on 27.7.2009.
G 24. Based on the evidence noticed in the three preceding
paragraphs, there can be no doubt whatsoever, that the
accused-appellant had been identified through cogent
evidence as the person who had taken away Suresh when he
disembarked from school van on 27.7.2009. The factum of
H
SUNDER@ SUNDARARAJAN v. STATE BY INSPECTOR 47
OF POLICE [JAGDISH SINGH KHEHAR, J.]
kidnapping of Suresh by the accused-appellant, ther~fore, A
stands duly established.
25. The material question to be determined is, whether the
aforesaid circumstantial evidence is sufficient to further infer,
that the accused- appellant had committed the murder of
8
Suresh. According to the learned counsel for the appellant,
there is no evidence whatsoever, on the record of the case,
showing the participation of the accused-appellant in any of the
acts which led to the death of Suresh. It was, therefore, the
submission of the learned counsel for the appellant, that even
though the accused-appellant may be held guilty of having C
kidnapped Suresh, since it had not been established that he
had committed the murder of Suresh, he cannot be held guilty
of murder in the facts of this case.
26. Having given our thoughtful consideration to the o
submission advanced at the hands of the learned counsel for
the appellant, we are of the view, that the instant submission is
wholly misplaced and fallacious. Insofar as the instant aspect
of the matter is concerned, reference may be made to the
judgment rendered by this Court in Sucha Singh's case (supra), E
wherein it was held as under:-
"21. We are mindful of what is frequently happening
during these days. Persons are kidnapped in. the
sight of others and are forcibly taken out of the sight
of all others and later the kidnapped are killed. If a F
legal principle is to be laid down that for the murder
of such kidnapped there should necessarily be
independent evidence apart from the
circumstances enumerated above, we would be
providing a safe jurisprudence for protecting such G
criminal activities. India cannot now afford to lay
down any such legal principle insulating the
marauders of their activities of killing kidnapped
innocents outside the ken of others."
H
48 SUPREME COURT REPORTS [2013] 4 S.C.R.
A A perusal of the aforesaid determination would reveal, that
having proved the factum of kidnapping, the inference of the
consequential murder of the kidnapped person, is liable to be
presumed. We are one with the aforesaid conclusion. The logic
for the aforesaid inference is simple. Once the person
a concerned has been shown as having been kidnapped, the
onus would shift on the kidnapper to establish how and when
the kidnapped individual came to be released from his custody.
In the absence of any such proof produced by the kidnapper, it
would be natural to infer/presume, that the kidnapped person
C continued in the kidnapper's custody, till he was eliminated. The
instant conclusion would also emerge from Section 106 of the
Indian Evidence Act, 1872 which is being extracted .hereunder
"106 • Burden of proving fact especially within
D knowledge-.When any fact is especially within the
knowledge of any person, the burden of proving that fact
is upon him.
Illustrations
E
(a) When a person does an act with some intention other
than that which the character and circumstances of the act
suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket.
F The burden of proving that he had a ticket is on him."
27. Since in the facts and circumstances of this case, it
has been duly established, that Suresh had been kidnapped
by the accused-appellant; the accused-appellant has not been
G able to produce any material on the record of this case to show
the release of Suresh from his custody. Section 106 of the
Indian Evidence Act, 1872 places the onus on him. In the
absence of any such material produced by the accused-
appellant, it has to be accepted, that the custody of Suresh had
H remained with the accused-appellant, till he was murdered . .The
SUNDER @ SUNDARARAJAN v. .STATE BY INSPECTOR 49
OF POLICE [JAGDISH SINGH KHEHAR, J.]
motive/reason for the accused-appellant, for taking the extreme A
step was, that ransom as demanded by him, had not been paid.
we· are therefore, satisfied, that in the facts and circumstances
of the present case; there is sufficient evidence on the record
of this case, on the basis whereof even the factum of murder
of Suresh at the hands of the accused-appellant stands B .·
established.
28. We may now refer to some further material on the
record of the case, to substantiate our aforesaid conclusion.
In this behalf, it would be relevant to mention, that when the C
accused-appellant was detained on 30.7.2009, he had made
a confessional statement in the presence of Kasinathan
(PW13) ~tating, that he had ·strangulated· Suresh to death,
whereupon his body was put into a gunny bag and throw_n into
the Meerankulam tank. It was thereafter, on the pointing out of
the accused-appellant, that the body of Suresh was recovered D
from the Meerankulam tank. It was found in a gunny bag, as
stated by the accused-appellant. Dr. Kathirvel (PW12)
concluded after holding the post mortem examination of the
dead body of Suresh, that Suresh had died on account of
suffocation, prior to his having been drnwned. The instant E
evidence clearly nails the accused- appellant as the perpetrator
of the murder of Suresh. Moreover, the statement of Kasinathan
(PW13) further reveals that the school bag, books and slate of
Suresh were recovered from the residence of the accused-
appellant. These articles were confirmed by Maheshwari (PW1) F
as belonging to Suresh. In view of the factual and legal position
dealt with hereinabove, we have _no doubt in our mind, that the
prosecution had produced sufffcient material to establish not
only the kidnapping of Sufesh, but also his murder at the hands
of the accused-appellant. G
29. Besides· the submission advanced on the merits of the
controversy, learned counsel for the accused-appellant· also
assailed the confirmation by the High Court of the death
sentence imposed by the trial court. During the course of
H .
50 SUPREME COURT REPORTS [2013] 4 S.C.R.
A hearing, it was the vehement contention of the learned counsel
for the accused-appellant, that infliction of life imprisonment, in
the facts and circumstances of this case, would have satisfied
the ends of justice. It was also the contention of the learned
counsel for the accused- appellant, that the facts and
B circumstances of this case are not sufficient to categorize the
present case as a 'rarest of a rare case', wherein only the
death penalty would meet the ends of justice. In order to support
the aforesaid contention, learned counsel for the accused-
appellant, in the first instance, placed reliance on a recent
C judgment rendered by this Court in Haresh Mohandas Rajput
Vs. State of Maharashtra, (2011) 12 SCC 56, wherein, having
taken into consideration earlier judgments, this Court delineated
the circumstances in which the death penalty could be imposed.
Reliance was placed on the following observations recorded
therein:-·
D
"Death Sentence - When Warranted:
"18. The guidelines laid down in Bachan Singh v. State
of Punjab, (1980) 2 SCC 684, may be culled out
E as under:
(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty, the
F circumstances of the 'offender' also require to be
taken into consideration alongwith the
circumstances of the 'crime'.
(iii) Life imprisonment 'is the rule and death sentence
is an exception. In other words, death sentence
G
must be imposed only when life imprisonment
appears to be an altogether inadequate
punishment having regard to the relevant
circumstances of the crime, and provided, and
only provided, the option to impose sentence of
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 51
OF POLICE [JAGDISH SINGH KHEHAR, J.]
imprisonment for life cannot be conscientiously A
exercised having regard to the nature and
circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating
B
circumstances has to be drawn up and in doing
so, the mitigating circumstances have to be
accorded full weightage and just balance has to
be struck between the aggravating and the
mitigating circumstances before the option is
exercised. c
19. In Machhi Singh and Ors. v. State of Punjab,
(1983) 2 SCC 684, this Court expanded the "rarest
of rare" formulation beyond the aggravating factors
listed in Bachan Singh to cases where the D
"collective conscience" of a community is so
shocked that it will expect the holders of the judicial
powers centre to inflict death penalty irrespective
of their personal opinion as regards desirability or
otherwise of retaining death penalty, such a penalty E.
can be inflicted. But the Bench in this case
underlined that full weightage must be accorded to
the mitigating circumstances in a case and a just
balance had to be struck between aggravating and
mitigating circumstances. F
20. "The rarest of the rare case" comes when a convict
would be a menace and threat to the harmonious
and peaceful co-existence of the society. The crime
may be heinous or brutal but may not be in the
category of "the rarest of the rare case". There must G
be no reason to believe that the accused cannot
be reformed or rehabilitated and that he is likely to
continue criminal acts of violence as would
constitute a continuing threat to the society. The
accused may be a menace to the society and H
52 SUPREME COURT REPORTS [2013)' 4 S.CR.
A would continue to be so, threatening its peaceful
arid harmonious co-existence. The manner in which
the crime is committed must be such that it may
result in intense and extreme indignation of the
community and shock the collective conscience of
B the society. Where an accused does not act on any
spur-of-the-moment provocation and indulges
himself in a deliberately planned crime and
meticulously executes it, the death sentence may be
the most appropriate punishment" for such a ghastly
c crime. The death sente·nce may be warranted
where the· victims are innocent children and
helpless women. Thus, in case the crime is
committed· in a most cruel and inhuman manner
which is an extremely brutal, grotesque, diabolical,
revolting and dastardly manner, where his act
D affects the entire moral. fiber of ·the society, e.g.
crime committed for power or political ambition or
indulging in organized criminal activities, death
sentence should be awarded. (See: C. Muniappan
and Ors. v. Stale of Tamil Nadu, AIR 2010 SC
E · 3718; Rabindra Kumar Pal alias Dara Singf] v.
Republic of India, (2011) 2 SCC 490; Surendra
Kofi v. State of U.P. and Ors., (2011) 4 SCC 80;
Mohd. Mannan (supra); and Sudam v. State of
Maharashtra, (2011) 7 SCC 125).
F
21. 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
G sentence should be awarded, would depend upon
the factual scenario of the case in hand."
Reliance was al"so placed, on the decision of this Court in
Ramnaresh & Ors. Vs. State of Chhattisgarh, (2012) 4 SCC
257. Insofar as the instant judgment is concerned, learned
H counsel relied on the following observations:-
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 53
OF POLICE [JAGDISH SINGH KHEHAR, J.]
"The death sentence and principles governing its A
conversion to life imprisonment
56. Despite the transformation of approach and radical
changes in principles of sentencing across the
world, it has not been possible to put to rest the 8
conflicUng views on sentencing policy. The
sentencing policy being a significant' and
inseparable facet of criminal jurisprudence, has
been inviting the attention of the Courts for
providing certainty and greater clarity to it.
c
57. Capital punishment has been a subject matter of .
great social and judicial discussion and catechism.
From whatever point of view it is examined, one
undisputable statement of law follows that it is
neither possible nor prudent to state any universal D
formula which would be applicable to all the cases
of criminology where capital punishment has been
prescribed. It shall always depend upon the facts
and circumstances of a given case: This Court has
stated various legal principles which would be E
precepts on exercise of judicial discretion in cases
where the issue is whether the capital punishment
should or should not be awarded.
58. The law requires the Court to record special
F
reasons for awarding such sentence. The Court,
therefore, has to consider matters like nature of the
offence, how and under what circumstances it was
committed, the extent of brutality with which the
offence was committed, the motive for the offence,
any provocative or aggravating circumstances at G
the time of commission of the crime, the possibility
of the convict being reformed or rehabilitated,
adequacy of the sentence of life imprisonment and
other attendant circumstances. These factors
H
54 SUPREME COURT REPORTS [2013) 4 S.C.R.
A cannot be similar or identical in any two given
cases.
59. Thus, it is imperative for the Court to examine each
case on its own facts, in light of the enunciated
principles. It is only upon application of these·
B
principles to the facts of a given case that the Court
can arrive at a final conclusion whether the case in
hand is one of the 'rarest of rare' cases and
imposition of death penalty alone shall serve the
ends of justice. Further, the Court would also keep
c in mind that if such a punishment alone would serve
the purpose of the judgment, in its being sufficiently
punitive and purposefully preventive.
xxx xxx xxx xxx
D
72. The above judgments provide us with the dicta of the
Court relating to imposition of death penalty. Merely
because a crime is heinous per se may not be a
sufficient reason for the imposition of death penalty
without reference to the other factors and attendant
E
circumstances.
73. Most of the heinous crimes under the IPC are
punishable by death penalty or life imprisonment.
That by itself does not suggest that in all such
F offences, penalty of death alone should be
awarded. We must notice, even at the cost of
repetition, that in such cases awarding of life
imprisonment would be a rule, while 'death' would.
be the exception. The term 'rarest of rare' case
G which is the consistent determinative rule declared
by this Court, itself suggests that it has to be an
exceptional case.
74. The life of a particular individual cannot be taken away
except according to the procedure established by
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 55
OF POLICE [JAGDISH SINGH KHEHAR, J.]
law and that is the constitutional mandate. The law A
contemplates recording of special reasons and,
therefore, the expression 'special' has to be given
a definite meaning and connotation. 'Special
reasons' in contra-distinction to 'reasons' simpliciter
conveys the legislative mandate of putting a B
restriction on exercise of judicial discretion by
placing the requirement of special reasons.
75. Since, the later judgments of this Court have added
to the principles stated by this Court in the case of C
Bachan Singh (supra) and Machhi Singh (supra),
it will be useful to restate the stated principles while
also bringing them in conspnance, with the recent
judgments.
76. The law enunciated by this Court in its recent D
judgments, as already noticed, adds and elaborates
the principles that were stated in the case of
Bachan Singh (supra) and thereafter, in the case
of Machhi Singh (supra). The aforesaid judgments,
primarily dissect these principles into two different E
compartments - one being the 'aggravating
circumstances' while the other being the 'mitigating
circumstances'. The Court would consider the
cumulative effect of both these aspects and
normally, it may not be very appropriate for the Court F
to decide the most significant aspect of sentencing
policy with reference to one of the classes under any
of the following heads while completely ignoring
other classes under other heads. To balance the
two is the primary duty of the Court. It will be G
appropriate for the Court to come to a final
conclusion upon balancing the exercise that would
help to administer the criminal justice system better
-~md provide an effective and meaningful reasoning
by the Court as contemplated under Section 354(3)
H
Cr.P.C.
56 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Aggravating Circumstances:
(1) The offences relating to the commission of heinous
crimes like murder, rape, armed dacoity,
kidnapping etc. by the accused with a prior record
of conviction for capital felony or offences
B
committed by the person having a substantial
history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was
engaged in the commission of another serious
c offence.
(3) The offence was committed with the intention to
create a tear psychosis in the public at large and
was committed in a public place by a weapon or
D device which clearly could be hazardous to the life
of more than one person.
(4) The offence of murder was committed for ransom
or like offences to receive money or monetary
benefits.
E
(5) Hired killings.
(6) The offence was committed outrageously for want
only while involving inhumane treatment and torture
to the victim.
F
(7) The offence was committed by a person ·while in
lawful custody.
(8) The murder or the offence was committed to
G prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement
of himself or another. For instance, murder is of a
person who had acted in lawful discharge of his duty
·under Section 43 Cr.P.C.
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 57
OF POLICE [JAGDISH SINGH KHEHAR, J.]
(9) When the crime is enormous in proportion like A
making an attempt of murder of the entire family or
members of a particular community.
(10) When the victim· is innocent, helpless or a person
relies upon the trust of relationship and social B
norms, like a child, helpless woman, a daughter or
a niece staying with a father/uncle and is inflicted
with the crime by such a trusted person.
(11) When murder is committed for a motive which
' evidences total depravity and meanness. c
(12) When there is a cold blooded murder without
provocation.
(13) The crime is committed so brutally that it pricks or
D
shocks not only the judicial conscience but even the
conscience of the society.
Mitigating Circumstances:
(1) The manner and circumstances in and under which E
the offence was committed, for example, extreme
mental or emotional disturbance or extreme
provocation in contradistinction to all these
situations in normal course.
(2) The age of the accused is a relevant consideration F
but not a determinative factor by itself.
(3) The chances of the accused of not indulging in
commission of the crime again and the probability
of the accused being reformed and rehabilitated. G
(4) The condition of the accused shows that he was
mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
H
58 SUPREME COURT REPORTS [2013] 4 S.C.R.
A (5) The circumstances which, in normal course of life,
would render such a behaviour possible and could
have the effect of giving rise to mental imbalance
in that given situation like persistent harassment or,
in fact, leading to such a peak of human behaviour
B that, in the facts and circumstances of the case, the
accused believed that he was morally justified in
committing the offence.
(6) Where the Court upon proper appreciation of
evidence is of the view that the crime was not
c committed in a preordained manner and that the
death resulted in the course of commission of
another crime and that there was a possibility of it
being construed as consequences to the
commission of the primary crime.
D
(7) Where it is absolutely unsafe to rely upon the
testimony of a sole eye-witness though prosecution
has brought home the guilt of the accused.
77. While determining the questions relateable to
E
sentencing policy, the Court has to follow certain
principles and those principles are the loadstar
besides the above considerations in imposition or
otherwise of the death sentence.
F Principles:
(1) The Court has to apply the test to determine, if it
was the 'rarest of rare' case for imposition of a
death sentence.
G (2) In the opinion of the Court, imposition of any other
punishment, i.e., life imprisonment would be
completely inadequate and would not meet the
ends of justice.
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 59
OF POLICE [JAGDISH SINGH KHEHAR, J.]
(3) Life imprisonment is the rule and death sentence A
is an exception.
(4) The option to impose sentence of imprisonment for
life cannot be cautiously exercised having regard
to the nature and circumstances of the crime and
B
all relevant considerations.
(5) The method (planned or otherwise) and the manner
(extent of brutality and inhumanity, etc.) in which the
crime was committed and the circumstances
leading to commission of such heinous crime. c
78. Stated broadly, these are the accepted indicators
for the exercise of judicial discretion but it is always
preferred not to fetter the judicial discretion by
attempting to make the excessive enumeration, in D
one way or another. In other words, these are the
considerations which may collectively or otherwise
weigh in the mind of the Court, while exercising its
jurisdiction. It is difficult to state it as an absolute ·
rule. Every case has to be decided on its· own
E
merits. The judicial pronouncements, can only state.
the precepts that may govern the exercise of judicial
discretion to a limited extent. Justice may be done
on the facts of each case. These are the factors
which the Court may consider in its endeavour to
F
do complete justice between the parties.
79. The Court then would draw a balance-sheet of
aggravating and mitigating circumstances. Both
aspects have to be given their respective
weightage. The Court has to strike a balance G
between the two and see towards which side the
scale/balance of justice tilts. The principle of
proportion between the crime and the punishment
is the principle of 'just deserts' that serves as the
foundatiqn of every criminal sentence that is H
60 SUPREME COURT REPORTS [2013] 4 S.C.R.
A justifiable. In other words, the 'doctrine of
proportionality' has a valuable application to the
sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to
examine what is just but also as to what the
B accused deserves keeping in view the impact on
the society at large.
80. Every punishment imposed is bound to have its
effect not only on the accused alone, but also on the
society as a whole. Thus, the Courts should
c consider retributive and deterrent aspect of
punishment while imposing the extreme punishment
of death.
81. Wherever, the offence which is committed, manner
D in which it is committed, its attendant circumstances
and the moti~e and status of the victim, undoubtedly
brings the case within the ambit of 'rarest of rare'
cases and the Court finds that the imposition of life
imprisonment would be inflicting of inadequate
E punishment, the Court may award death penalty.
Wherever, the case falls in any of the exceptions to
the 'rarest of rare' cases, the Court may exercise
its judicial discretion while imposing life
imprisonment in place of death sentence."
F Last of all, reliance was placed on the judgment rendered by
this Court in Brajendra Singh Vs. State of Madhya Pradesh,
(2012) 4 SCC 289, wherein, this Court having followed the
decision rendered in Ramnaresh & Ors. Vs. State of
0
Chhattisgarh (cited supra), further held as under:-
G
"38. First and the foremost, this Court has not only to
examine whether the instant case falls under the
category of 'rarest of rare' cases but also whether
any other sentence, except death penalty, would be
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 61
OF POLICE [JAGDISH SINGH KHEHAR, J.]
inadequate in the facts and circumstances of the A
present case.
39. We have already held the Appellant guilty of an
offence under Section 302, Indian Penal Code for
committing the murder of his three children and the 8
wife. All this happened in the spur of moment, but,
of course, the incident must have continued for a
while, during which period the deceased Aradhna
received burn injuries as well as the fatal injury on
the throat. All the t~ree children received·injuries with C
a knife similar to that of the deceased Aradhna. But
one circumstance whi~h cannot be ignored by this
Court is that the prosecution witnesses have clearly
. stated that there was a rift between the couple on·
account of her talking to Liladhar Tiwari, the
neighbour, PW10. Even if some credence is given D
to the statement made by the accused under
Section 313 Cr.P.C. wherein he stated that he had
seen the deceased and PW10 in a compromising
position in the house of PW10, it also supports the
allegation of the prosecution that there was rift E
between the husband and wife on account of PW10.
It is also clearly exhibited in the FIR (P-27) that the
accused had forbidden his wife from talking to
PW10, which despite such warning she persisted
with and, therefore, he had committed the murder F
of her wife along with the children."
30. We are one with the learned counsel for the accused-
appellant, on the parameters prescribed by this Court, for
inflicting the death sentence. Rather than deliberating upon the G
matter in any further detail, we would venture to apply the
parameters laid down in the judgments relied upon by the
learned counsel for the accused-appellant, to determine whether
or not life imprisonment or in the alternative the death penalty,
would be justified in the facts and circumstances of the present H
62 SUPREME COURT REPORTS [2013] 4 S.C.R.
A case. We may first refer to the aggravating circumstances as
under:-
(i) The accused-appellant has been found guilty of the
offence under Section 364A of the Indian Penal
Code. Section 364A is being extracted hereunder:-
B
"364A. Kidnapping for ransom, etc.-Whoever
kidnaps or abducts any person or keeps a
person in detention after such kidnapping or
abduction and threatens to cause death or
c hurt to such person, or by his conduct gives
rise to a reasonable apprehension that such
person may be put to death or hurt, or causes
hurt or death to such person in order to
compel the Government or any foreign State
D or international inter-governmental
organization or any other person to do or
abstain from doing any act or to pay a
ransom, shall be punishable with death, or
imprisonment for life, and shall also be liable
E to fine."
A perusal of the aforesaid provision leaves no room for
any doubt, that the offence of kidnapping for ransom
accompanied by a threat to cause death contemplates
punishment with death. Therefore, even without an accused
F actually having committed the murder of the individual
kidnapped for ransom, the provision contemplates the death
penalty. Insofar as the present case is concerned, there is no
doubt, that the accused-appellant has been found to have
kidnapped Suresh for ransom, and has also actually committed
G his murder. In the instant situation therefore, the guilt of the
accused-appellant (under Section 364A of the Indian Pe!Jal
Code) must be considered to be of the gravest nature, justifying
the harshest punishment prescribed for the offence.
H (ii) The accused-appellant has also been found guilty
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 63
OF POLICE [JAGDISH SINGH KHEHAR, J.]
of the offence of murder under Section 302 of the A
Indian Penal Code. Section 302 of the Indian Penal
Code also contemplates the punishment of death
for the offence of murder.1 It is, therefore apparent,
that the accused-appellant is guilty of two heinous
offences, which independently of one another, B
provide for the death penalty.
(iii) The accused caused the murder of child of 7 years.
The facts and circumstances of the case do not
depict any previous enmity between the parties.
There is no grave and sudden provocation, which
c
had compelled the accused to take the life of an
innocent child. The murder of a child, in such
circumstances makes this a case of extreme
culpability.
D
(iv) Kidnapping of a child was committed with the
motive of carrying home a ransom. On account of
the non-payment of ransom, a minor child's murder
was committed. This fact demonstrates that the
accused had no value for human life. The instant E
circumstance demonstrates extreme mental
perversion not worthy of human condonation.
(v) The manner in which the child was murdered, and
the approach and method adopted by the accused,
F
disclose the traits of outrageous criminality in the
behaviour of the accused. The child was first
strangulated to death, the dead body of the child
was then tied in a gunny bag, and finally the gunny
bag was thrown into a water tank. All this was done,
in a well thought out and planned manner. This G
approach of the accused reveals a brutal mindset
of the highest order.
(vi) All the aforesaid aggravating circumstances are
liable to be considered in the background of the H
64 SUPREME COURT REPORTS [2013) 4 S.C.R.
A fact, that the child was known to the accused-
appellant. In the examination of the accused under
Section 313 of the Code of Criminal Procedure, the
accused acknowledged, that he used to see the
child whenever the child was taken by his mother
B to her native village. Additionally, it is
acknowledged in the pleadings, that the accused
had developed an acquaintance with the child, when
his mother used to visit her native place along with
her son. Murder was therefore committ~d. not of a
c stranger, but of a child with whom the accused was
acquainted. This conduct of the accused-appellant,
places the facts of this case in the abnormal and
heinous category.
(vii) The choice of kidnapping the particular child for
D ransom, was well planned and consciously
motivated. The parents of the deceased had four
children -three daughters and one son. Kidnapping
the only male child was to induce maximum fear in
the mind of his parents. Purposefully killing the sole
E male child, has grave repercussions for the parents
of the deceased. Agony for parents for the loss of
their only male child, who would have carried further
the family lineage, and is expected to see them
through their old age, is unfathomable. Extreme
F misery caused to the aggrieved party, certainly
adds to the aggravating circumstances.
31. As against the aforesaid aggravating circumstances,
learned counsel for the accused-appellant could not point to us
even a single mitigating circumstance. Thus viewed, even on
G the parameters laid down by this Court, in the decisions relied
upon by the learned counsel for the accused- appellant, we
have no choice, but to affirm the death penalty imposed upon
the accused-appellant by the High Court. In fact, we have to
record the aforesaid conclusion in view of the judgment
H
SUNDER @ SUNDARARAJAN v. STATE BY INSPECTOR 65
- OF POLICE [JAGDISH SINGH KHEHAR, J.]
· rendered by this Court in Vikram Singh & Ors. Vs. State of A
. Punjab, (2010) 3 SCC 56, wherein in the like circumstances
(certainly, the circumstances herein are much graver than the
ones in the said case), this Court had upheld the death penalty
awarded by the High Court.
B
32. In view of the above, we find no justification whatsoever,
in interfering with"the impugned order of the High Court, either
on merits or on the quantum of punishment.
33. Dismissed.
c
K.K.T. Appeals dismissed.
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