Supreme Court of India
VASANT SAMPAT DUPAREversusSTATE OF MAHARASHTRA
- Citation
- 2014 INSC 1033
- Decided
- 26 November 2014
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The conviction and death sentence were affirmed because the chain of circumstantial evidence was conclusive and the offence met the criteria of the rarest of the rare cases.
Summary
Vasant Sampat Dupare was convicted of raping and murdering a four‑year‑old girl. The prosecution relied on a chain of circumstantial evidence – eyewitnesses who saw the accused with the child, forensic matches of blood on the stones and the accused’s clothing, and the accused’s own disclosure leading police to the body and murder weapon. The Supreme Court held that the circumstances were conclusive, establishing guilt beyond reasonable doubt, and that the crime qualified as a "rarest of the rare" warranting the death penalty. No mitigating factors were found, and the Court affirmed the trial and High Court’s judgment, dismissing the appeals.
Issues considered
- The adequacy of circumstantial evidence to sustain conviction for rape and murder.
- Whether the death penalty is justified under the "rarest of the rare" doctrine.
Legislation cited
- Code of Criminal Procedure, 1973s. 162, s. 313, s. 366(1)
- Indian Evidence Act, 1872s. 27, s. 8
- Indian Penal Code, 1860s. 201, s. 302, s. 363, s. 367, s. 376(2)(f)
Subjects
rapemurderchild victimcircumstantial evidencedeath penaltyrarest of the rareIPCforensic evidencelast seen doctrineSection 27 Evidence ActSection 8 Evidence Act
Judgment
[2014] 14 S.C.R. 961
VASANT SAMPAT DUPARE A
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 2486-2487 of 2014)
NOVEMBER26, 2014 B
[DIPAK MISRA, ROHINTON FALi NARIMAN AND
UDAY UMESH LALIT, JJ.]
Penal Code, 1860: ss.302, 376(2)(f) - Rape and
murder of 4 years old minor girl - Conviction based on c
circumstantial evidence - Held: The incriminating
circumstances clearly established and the chain of.
circumstances conclusive in nature to lead to a definite
conclusion that the crime was committed by the appellant -
The crime was committed in an inhuman manner - The D
appalling cruelty shown by him to the minor girl child was
extremely shocking and it gets accentuated, when his age is
taken into consideration.- The offence was not committed
under any mental stress or emotional disturbance and it is
· difficult to comprehend that he would not commit such acts E
and would be reformed or rehabilitated - As the
circumstances would graphically depict, he would remain a
menace to the society, for a defenceless child has become
his prey - There were no mitigating circumstances - A
helpless and defenceless child gets raped and murdered F
because of the acquaintance of the appellant with the people
of the society- This is not only betrayal of an individual trust
but destruction and devastation of social trust- It irrefragably
invites the extreme abhorrence and indignation of the
collective - It meets the test of rarest of the rare case - G
Conviction and death sentence affirmed.
Dismissing the appeals, the Court
HELD: 1. The circumstances that were clearly
established were that the appellant was seen in the
courtyard where the minor girl and other children were H
961
962 SUPREME COURT REPORTS [2014) 14 S.C.R.
A playing; thatthe appellant was seen taking the deceased
on his bicycle; that he went to the grocery shop owned
by PW-6 to buy Mint chocolate along with her; that the
accused told PW-2 that the child was the daughter of
his friend and he was going to 'Tekdi~Wadi' along with
B the girl; that the appellant led to discovery of the dead
body of th4il deceased, the place where he had washed
his clothes and at his instance the stones smeared with
blood were recovered; that the medical report clearly
indicated about the injuries· sustained by the deceased
C on her body; that the injuries sustained on the private
parts were stated by the doctor to have been caused by
forcible sexual intercourse; that the stones that were
seized were smeared with blood and the medical
evidence corroborated.the fact that injuries could have
o been caused by battering with stones; that the chemical
analysis report showed that the blood group on the
stones matched with the blood group found on the
clothes of the appellant; that the appellant did not offer
any explanation with regard to the recovery made at his
E instance; and that nothing was stated in his examination
under Section 313 CrPC that there was any justifiable
reason to implicate him in the crime in question. Thus,
each of the incriminating circumstances were clearly
established and the chain ,of circumstances were
F conclusive in nature to lead to a definite conclusion that
the crime was committed by the accused. [Para 35)
[988-E-H; 989-A-D] .
Dana Yadav v. State of Bihar (2002) 7 SCC 295 :
2002 (2) Suppl. SCR 363 ; Dharam Oeo Yadav
G v. State of Uttar Pradesh (2014) 5 SCC 509 ;
Pulukuri Kotayya v. King Emperor AIR 1947 PC
67; Mohmed lnayatullah v. The State of
Maharashtra (1976) 1 SCC 828: 1976 (1) SCR
715 ; Aftab Ahmad Anasar:i v. State of Uttaranchal
.H (2010) 2 sec 583: 2010 (1) SCR 1021; State of
VASANT SAM PAT DU PARE v. STATE OF 963
MAHARASHTRA
Maharashtra v. Damu (2000) 6 SCC 269 : 2000 A
(3) SCR 880 ; State of Maharashtra v. Suresh
(2000) 1 sec 471 : 1999 (5) Suppl. SCR 215;
State of Punjab v. Gurnam Kaur (2009) 11 SCC
225: 2009 (3) SCR 1195; AftabAhmad Anasari
v. State of Uttaranchal (2010) 2 $CC 583 ; B
Bhagwan Dass v. State (NCT of Delhi) (2011) 6
SCC 396 : 2011 (6) SCR 330 ; Manu Sharma v.
State (NCT of Delhi) (2010) 6 sec 1 : 2010 (4)
SCR 103 ; Rumi Bora Dutta v. State of Assam
(2013) 7 SCC 417; Prakash Chand v State (Delhi C
Admn.) (1979) 3 sec 90 : 1979 (2) SCR 330 ;
H.P. Admn. v. Om Prakash (1'972) 1 SCC 249 :
1972 (2) SCR 765 ; A.N Vekatesh v. State of·
Karnataka (2005) 7 SCC 714 - relied on.
Furman v. Georgia 33 L Ed 2d 346 : 408 US 238 D
(1972)- referred to.
2.1. Materials on record clearly revealed that the
appellant was well acquainted with the inhabitants of the
locality and had access to the house of the father of the
deceased and the children used to call him "uncle". He E
had lured the deceased to go with him to have
chocolates. It was an act of taking advantage of absolute
innocence. He had taken the deceased from place to
place by his bicycle and eventually raped her in a brutal
manner, as if he had the insatiable and ravenous appetite. · F ·
He had battered her to death by assaulting her with two
heavy stones. The injured minor girl could not have
shown any kind of resistance. It was not a case where
the accused had a momentary lapse. After the savage
act was over, the coolness of the appellant was evident, G
for he washed the clothes on the tap and took proper
care to hide things. As is manifest, he even did not think
for a moment the trauma and torture that was caused to
the deceased. The barbaric act of the appellant did not
H
964 SUPREME COURT REPORTS [2014] 14 S.C.R.
A remotely show any concern for·the precious life of a
young minor child who had really not seen life. The
criminality of the conduct of the appellant was not only
depraved and debased, but can have a menacing effect
on the society. The crime was committed in an inhuman
B manner. Indubitably, these go a long way to establish
the aggravating circumstances. [Paras 57, 58)
(1003-F-H; 1004-A-C; 1005-D-Gr
2.2. The appellant was aged about forty-seven years
at the time of commission of the crime. There was no
C remorse on his part. He was a history-stieeter and had
number of cases are pending against him. That alone
may not be sufficient. It was not committed under any
mental stress or emotional disturbance and it is difficult
to comprehend that he would not commit such acts and
D would be reforme.d or rehabilitated. As the circumstances
would graphically depict, he would remain a menace to
the society, for a defenceless child has become his prey.
There are no mitigating circumstances. This case
deserves to fall in the category of rarest of the rare cases.
E [Paras 59, 60)(1005-H; 1006-A-E]
Bachan Singh v. State of Punjab (1980) 2 SCC
684 ; Machhi Singh and Others v. State of Punjab
(1983) 3 sec 470 : 1983 (3) SCR 413 ; Haresh
Mohandas Rajput v. State of Maharashtra (2011)
F 12 SCC 56: 2011 (14) SCR 921 ; c, Muniappan
v. State of T.N. (2010) 9 SCC 567 : 2010 (10)
SCR 262 ; Dara Singh v. Republic of India (2011)
2 SCC 490: 2011 (1) SCR 92.9; Surendra Kofi v.
State of U.P. (2011) 4 sec 80 : 2011 (2) SCR
G 939 ; Dhanjoy Chatterjee alias Dhana v. State of
W.B. (1994) 2 sec 220 : 1994 (1) SCR 37 ;
Laxman Naik v. State ofOrissa (1994) 3 SCC 381:
1994 (2) SCR 94; Kamta Tiwari and State of M.P.
(1996). 6 sec 250 : 1996 (5) Suppl. scR 507 ;
H
VASANT SAMPAT DUPARE v. STATE OF 965
MAHARASHTRA
Bantu v. State of Uttar Pradesh (2008) 11 SCC A
113 : 2008 (11) SCR 184 ; Devender Pal Singh
v. State ofA.P. (2002) 5 sec 234: 2002 (2) SCR
767 ; Rajendra Pralhadrao Wasnik v. State of
Maharashtra (2012) 4 SCC 37 : 2012
(2) SCR 225; State ofT.N. v. Suresh (1998) 2 SCC B
372: 1997 (6) Suppl. SCR 203; Akhtarv. State
of U.P. (1999) 6 SCC 60; State of Maharashtra v.
Barat Fakira Dhiwar(2002) 1SCC622: 2001 (5)
Suppl. SCR 12 ; Shyam Narain v. State (NCT of
Delhi) (2013) 7 SCC 77 - relied on. c
CASE LAW REFERENCE
2002 (2) Suppl. SCR "363 relied on. Para 17
(2014) 5 sec 509 relied on. Para 17
AIR 1947 PC 67 relied on. Para 19 D
1976 (1) SCR 71.5 relied on. Para 20
AIR 1929 Lah. 344 relied on. Para 20
AIR 1932 Born 286 relied on. · Para 20
1962 Supp 2 SCR 830 relied on. Para 20 E
2010 (1) SCR 1027 relied on. Para 21
2000 (3) SCR 880 relied on. Para 22
1999 (5) Suppl. SCR 215 relied on. Para 23
2009 (3) SCR 1195 relied on. Para 23 F
2011 (6) SCR 330 relied on. Para 23
2010 (4) SCR 103 relied on. Para 23
(2013) 1 sec 417 relied on. Para 23
1979 (2) SCR 330 relied on. Para 25 G
1972 (2) SCR 765 relied on. ·Para 25
(2005)7 sec 114 relied on. Para 26
(200&) 1o sec 151 relied on. Para 30
H
966 SUPREME COURT REPORTS [2014] 14 S.C.R.
A 1952 SCR 1091 relied on. Para 31
1985 (1) SCR 88 relied on .. Para 32
1996 (3) Suppl. SCR 479 relied on. Para 33
(1980) 2 sec 684 relied on. Para 36
B 408 us 238 (1972) referred to. Para 37
1983 (3) SCR 413 relied on. Para 40
2011 (14) SCR 921 relied on. Para 45
2010 (10) SCR 262 relied on. Para 45
c 2011 (1 ) SCR 929 .relied on. Para 45
2011 (2) SCR 939 relied on. Para 45
1994 (1) SCR 37 relied on. Para 46
1994 ( 2) SCR 94 relied.on. Para 47
D 1996 (5) Suppl. SCR 507 relied on. Para 48
2008 (11) SCR 184 relied on. Para 50
2002 (2) SCR 767 relied on. Para 51
2012 (2) SCR 225 relied on. Para 52
E 1997 (6) Suppl. SCR 203 relied on. Para 53
(1999) 6 sec 60 relied on. . Para 54
2001 (5)· Suppl. SCR 12 relied on. Para 55
(2013) 1 sec 11 relied on. Para 56
F CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No(s). 2486-2487 of2014.
· From the Judgment and Order dated 27-03-2012 of the
High Court of Judicature at Bombay Nagpur Bench in Criminal
Confirmation Case No. 1 of2012 in CriminalAppeal No. 112
G
of2012.
Sanjiv Das, S.S. Nehra, Parmanand Gaur,Advs. for the
Appellant.
Shankar Chillarge, Aniruddha P. Mayee Advs. for the
H Respondent.
VASANT SAMPAT DUPARE v. STATE OF 967
MAHARASHTRA
The Judgment of the Court was delivered by A
DIPAK MISRA, J.
1. In these two appeals, we are required to deal with a
sordid and despicable act of a married man who, at the time
of incident was in wedlock for more than two scores having a
B·
criminal background, has yielded not only to the inferior
endowments of nature but also has exhibited the gratification
of pervert lust and brutish carnality. The prey of such
degradation and depravity was a minor girl aged about four
years, daughter of Pinki, PW-1, and Krushna, PW-4. The
appellant, as per the prosecution version, after satisfying his C
uncontrolled, insatiable and rapacious savage desire, battered
the girl to death. This led to his facing trial for the offences
punishable under Sections 302, 376(2)(f), 363, 367 and 201
of the Indian Penal Code (for short, "IPC") in Sessions Trial
No. 252/2008 before the Learned Additional Sessions Judge, D
Nagpur, who considering the evidence on record and keeping
in view the nature of the crime vide judgment dated 23. 02. 2012
after recording the conviction in respect of aforesaid offences,
imposed the death sentence, apart from other punishment in
respect of other offences and sent, as required under Section E
366(1) of the Code of Criminal Procedure (for short, "CrPC"),
for confirmation by the High Court. The judgment of conviction
and the order of sentence was challenged by the appellant in
Criminal Appeal No. 112/2012 and it was heard along with the
Criminal Confirmation Case No.1 of2012 wherein the Division F
Bench of the High Court confirmed the sentence of death
awarded by the trial Court and as a logical corollary dismissed
the criminal appeal preferred by him. The said judgment is
the subject of assailment in the present appeal.
2. According to the prosecution case on 3.4.2008 about G
9-10 p.m., informant, Krushna Dudhraj Sharma, father of the
deceased, lodged a report at the police station Wadi stating
that he was staying in a tenanted house with his wife and two
daughters, the kidnapped girl aged about 4 years and her sister H
968 SUPREME COURTREPORTS [2014] 14 S.C.R.
A aged about six months. One Subhash Sonawane was residing
along with his wife and son in the neighbourhood of the
informant as a tenant of the common landlord, Kush al Bansod.
The appellant, Vasanta Dupare, a friend of Subhash
Sonawane, was a frequent visitor to the house of Subhash.
B On the fateful day when the informant, carpenter by profession,
returned home about 7.00 p.m., he found his wife weeping
and on a query being made, she disclosed that Vasanta Dupare
had taken the elder daughter o'n his bicycle while she was
playing in the.courtyard of the house and she had not yet
C returned home. He, being perturbed, searched for his daughter
in the vicinity, but it was an exercise in futility. Thus, the initial
allegation was thanhe appellant had kidnapped his minor
daughter. On the basis of the aforesaid report, a crime was
registered against the accused for an offence punishable under
o Section 363 of.the IPC.
3. As the prosecution version further undrapes, on the
same day, Santosh Ghatekar, PW-13, Assistant Police
Inspector, while returning to the police station, received the
information that the appellant was moving around Gati Godown
E located on Khadgaon. Road, and he passed on the said
information to Police lnspector.D.J. Chauhan, PW-16, and
eventually the appellant was apprehended and brought to the
police station. While in police custody, on 4.4.2008, he took
the investigating agency to the spot where he had after
F ravishing the minor girl child had murdered her. A memorandum
·of panchnama to that effect was prepared in the morning of
4.4.2008 and thereafter he led the police to the place of incident
wherefrom the dead body of the minor girl was recovered. At
his instance, the bicycle used was recovered from the godown
G located in between Khadgaon to Kamleshwar road belonging
to oneAshwin Prakash Agrawal. Thereafter, the initial offence
registered under Section 363 IPC was converted to offences ·
under Section 376(2)(f), 367, 302 and 201 of the IPC. The
Investigating Agency examined number of witnesses under
H Section 161 CrPC and completed all the formalities and laid
VASANT SAMPAT DUPARE v. STATE OF 969
MAHARASHTRA[DIPAK MISRA, J.]
the chargesheet before the competent court which in turn A
committed the matter to the Court of Session.
4. The accused-appellant pleaded his innocence and
non-involvement and took the plea that he had been falsely
implicated due to animosity.
B
5. The prosecution, to substantiate the charges levelled
against the appellant, examined 17 witnesses: After closure
. of the evidence of the prosecution, the accused was examined
under Section 313 of the CrPC and he pleaded complete denial
and false implication. The defence chose not to adduce any C
evidence.
6. The learned trial Judge, on the basis of the evidence
· brought on record came to hold that the mother of the minor
• girl, Pinki, PW-1, knew the appellant because of his frequent
visits to her neighbour Subhash; that she had seen the accused 0
in the courtyard where the minor girl was playing along with
other children; that she had also seen him going on a bicycle
from the behind; that Vandana Ramkar, PW-5, had deposed
categorically that While she was present outside
Chandrawanshi Hospital after finishing her work, she sawthe E
.appellant going on the bicycle with the deceased and she had
revealed when Pinki had made an enquiry about her daughter;
that Baby Sharma, PW-6, and Minal @ Twinkle, PW-3, the
child witness, have also unequivocally deposed that they had
seen the accused taking the minor girl with him at the relevant F
time from the locality in question; that Baby Sharma had further
deposed that the minor girl had fallen down from the bicycle
near her shop and the cyclist had purchased 'Minto Fresh' for
the girl who was wearing black top and blue skirt; that she had
identified the cyclist and also the photograph of the girl who G
had accompanied the appellant at the relevant time; that
Subhash Sonawane, PW-11, had stated that the accused had
been to his house for repairing his tape recorder on that day;
that version of Subhash had received corroboration from his
wife, Kavita, who has deposed that her daughter Akanksha H
970 SUPREME COURT REPORTS [2014] 14 S.C.R.
A and the victim were playing in the courtyard and at thatjuricture
the appellant was standing in the courtyard; thatthe appellant
had told Akanksha and the daughter of PW-1 that he would
buy chocolates for them and, therefore, they should accompany
him; that it had come in the testimony of Kavita, PW-12, that
B Akanksha, who was not having appropriate clothes on her
person came back home and by that time accused took the
· victim girl on his bicycle; that Manisha, PW-2, who knew the
appellant, had deposed that he had come to her house on the
bicycle along with the girl and on being asked he had told her
c name and she was wearing black top and blue midi and the
accused had mentioned to her that she was the daughter of
his friend; that Baby Sharma, PW~6. had identified the clothes
of the deceased which were on h'er person on the day of the •
incident arid had also identified him that he was the person
o who ·had taken the girl; that the panch witnesses Ramprasad,
PW-7 andAnand Borkar, PW-8, had stood embedded in their
testimony about the recovery wherefrom the girl was taken and
the place where the dead body was found, and they had also
remained firm in their testimony proving the panchnama to
E indicate the seized incriminating materials, that is, two stones
smeared with blood, blood mixed sample earth, branches of
trees having blood stains, minto,fresh and empty chocolate
wrappers and nikar and other clothes of the accused from the
spot; that the other two panch witn'esses, namely, Purushottam
F Gore, PW-9, arid Sanotsh Keche,PW-10, had stated about
the parcels containing clothes of the deceased and various
samples taken from the body of the deceased, received from
the hospital and the recovery of the bicycle from the god own;
and that nothing had been elicited which would create any kind
G of concavity in the testimony of these witnesses; and that the
investigating officers had not given any room for doubt; that·
the examining doctor, Dr. Prashant Barve, who had conducted
autopsy on the deceased had remained inflexible in the
testimony as regards the reports; and that the ocular and the
H documentary evidence brought on record established beyond
VASANT SAMPAT DUPARE v. STATE OF 971
MAHARASHTRA[DIPAK MISRA, J.]
reasonable doubt that the accused by alluring a minor girl of A
four years for giving chocolates, had kidnapped her, raped
her and caused injuries; and also had intentionally made
disappear the evidence of the crime committed by him. On
the aforesaid reasoning, the learned trial Judge found the
appellant guilty of the offences and treated the same as a crime B
of extreme brutality, for he had committed rape on a minor girl
aged about four years without thinking about the effect on the
victim. It was also opined by the learned trial Judge that the
accused was in mid 40s and had caused injuries by crushing
stones weighing 8.5 kg. and 7.5 kg with force upon her when c
she was in unbearable pains because of the ferocious act of
rape and injuries sustained by her; and that the accused was
having criminal antecedents as he was prosecuted for various
offences in four cases. Taking into consideration the totality of
circumstances, that is, the aggravating and the mitigating o
circumstances, the learned trial Judge regarded the case as
rarest of the rare cases and sentenced the appellant to suffer
death penalty under Section 302 IPC, life imprisonment and
fine of Rs.2,000/- with the default clause for the offence
punishable under Section 376(2)(f) of the IPC; rigorous E
imprisonment for seven years and fine of Rs.1000/- with default
clause for the offence punishable under Section 363 of the
IPC; rigorous imprisonment for seven years and fine of
Rs.1000/- with default clause for the offence punishable under
Section 367 of the IPC; and rigorous imprisonment for three F
years and fine of Rs.1000/-with default clause for the offence
punishable under Section 201 of the IPC with the stipulation
that all the sentences relating to imprisonment shall be
concurrent and submitted the proceedings to the High Court
under Section 366(1) of the Code of Criminal Procedure, 1973 G
for confirmation of death sentence by the High Court.
7. As has been stated earlier, the appellant preferred a
Criminal Appeal assailing the conviction and the sentence and
the High Court appreciated the evidence afresh and found that
the evidence of the witnesses was impeccable and totally H
972 SUPREME COURT REPORTS (2014] 14 S.C.R.
A beyond reproach and the prosecution had been able tci prove
the offences to the hilt. While dealing with the confirmatipn of
the sentence, the High Court referred to various decisions and
opined as follows:
"The accused raped a four years old girl and thereafter
B battered and smashed her head by two heavy stones
and killed her. The aggravating circumstance as pointed
out by us must be such as would have shockegjhe
conscience of the community in general. The acc,used
had acted in diabolical manner and had designedly lured
c the unsuspecting Muskan to accompany him on the
bicycle. Battering of the head of the girl of tender years
was done by the accused with extreme cruelty. The crime
has been committed by the accused in an extremely cruel
manner exhibiting brutality and utter perversity. The
D history sheet of ~he accused which is placed on reccird
exhibits several prosecutions against him. The accused
has not displayed any remorse or repentance for the act
done by him and we do not find any material to indicate
that there is a possibility of the accused reforming
E himself. The accused would continue to be a menace to
the society and, therefore, according to us, this is a rarest
of rare case calling for the extreme.
The mitigating circumstances which are brought on record
against the accused are that the accused is middle aged
F man of 45 years with no previous conviction so far. The
accused is a married person having a family. However,
the aggravating circumstances far out way the mitigating
circumstances and according to us, the extreme penalty
of death imposed by the trial court deserves to be
G confirmed."
8. We have heard Mr. Sanjiv Das, learned counsel for
the appellant and Mr. Shankar Chillarge, learned counsel for
the respondent-State.
H
VASANT SAM PAT DU PARE v. STATE OF 973
MAHARASHTRA [DIPAK MISRA, J.]
9. It is submitted by the learned counsel for the appellant A
that the learned trial Judge as well as the High Court has
committed gross illegality ih placing reliance on the testimony
of the parents of the deceased and other witnesses to establish
the last seen theory, which has really not been established. It
is urged by him that the leading to recovery of the dead body B
of the deceased and the clothes are not in consonance with
Section 27 of the Evidence Act. Learned counsel would submit
that the panch witnesses who have alleged to have supported
the prosecution story have really paved the path of deviancy
which has been lost sight of by the learned trial Judge as well C .
as by the High Court. It is his further submission that there are
material inconsistencies, contradictions and omissions, which
had seriously affected the prosecution's case and the chain of
circumstances for implicating the accused in the crime has
really not been established. It is propounded by him that the o
witnesses who have been cited by the prosecution to establish .
the chain of circumstances, fundamentally the last seen theory,
cannot be given credence to regard being had to the
unacceptable contradictions and infirmities. Finally, it is
canvassed by the learned counsel for the appellant that the E
present case could not fall ur:ider the category of rarest of the
rare cases warranting capital punishment and the criminal
background that has been taken into consideration by the
learned trial Judge as well as by the High Court is of not such
nature by which the appellant can be treated or regarded as a F
menace to the society and, therefore, if this Court affirms the
conviction, it should substitute the punishment to that of life
imprisonment.
10. Mr. Shankar Chillarge, learned counsel for the
respondent-State in support of the view expressed by the High G
· Court, contends that the prosecution has succeeded in proving
the guilt of the appellant beyond reasonable doubt and the
scanning of the evidence by the learned trial Judge, which has
been re-appreciated by the High Court, does not remotely
indicate any contradiction or discrepancy. It is proponed by H
•
974 SUPREME COURT REPORTS [2014] 14 S.C.R.
A him that all the witnesses have remained absolutely unshaken
in their version and nothing substantial has been elicited from
them duririg the cross-examination which could create a dent
in their testimony. Learned counsel would further contend that
if the ocular and documentary evidence is appreciated in
B proper perspective, there remains no scintilla of doubt that the
appellant had committed the brutal and heinous crime and in
such a circumstance when the society cries for justice, the Court
should not show any leniency for conversion of the seritencei.
11. To appreciate the rival submissions raised at the Bar,
C we think it appropriate to refer to the postmortem report of the
deceased. The said report by the doctor, namely, Dr. Prashant .
Barve, PW-15, .which has been brought on record as Exhibit
55, describes that at the time of postmortem, the face was
flattened, eyes closed, mouth partially opened, tongue was
D clinched and lacerated between teeth, blood was oozing
through mouth, nostrils and ears. It was also noticed that dry
grass leaves adhered over body at back side and dry blood-
stains were present over face, neck, perineum and lower limb.
He has found the following injuries on the dead body of the
E deceased:
"1) Multiple scratch abrasions present over front of chest
and front of neck size varyirig from 1 cm x 1/4 cm, to 3
cm. x 1/4'h cm., reddish brown.
2) Contused abrasion involving fore-head, eyes, nose,
F
both cheeks and lips red an·d dark red coloured,
. underlying bone fract~red, underlying, muscle lacerated.
3) Multiple scratch abrasion present over left lower leg
and left foot size varying from Y, cm. x 1/41h cm., to 1 cm.
G x 1/41h cm., reddi.sh brown.
4) Multiple scratch abrasio~ present over back of trunk
upper 2/3'd of size varying from 1 cm. x 1/41h cm. to 5 cm.
·x 1/4th cm., reddish brown.
. '
5) Abrasion of size 1 cm. x Y, cm. present over left knee,
H reddish brown."
VASANT SAMPAT DU PARE v. STATE OF 975
MAHARASHTRA [DIPAK MISRA, J.]
12. According to the doctor, he had found during internal A
examination that under scalp haematoma was present over
left frontal and right frontal region of size 4 cm. x 4 cm, dark
red, the frontal bone was fractured and depressed, fracture
line extended up to occipital bone through right temporal and
parietal bone fracture on interior and middle eranial side. The B
subarachined hemorrhage was present all over the brain ·
surface and meninges was congested. In his opinion, the cause
of death was head injury, associated with the injury on the
genital region. He has testified that the two stones that were
sent to him in sealed cover aiong with the requisition, Exhibit · C
62, for opinion, could have been used to cause the injuries on
the victim. He has weighed the stones which is 8.5 kg and 7.5
kg. and has opined that there had been forceful sexual
intercourse.
13. From the aforesaid medical evidence, it is clear as D.
crystal that there was forcible sexual intercourse with the girl
and the death was homicidal in nature.
14. Having analysed the said aspect, it· is to be seen
whether the prosecution has really established the complicity
of the appellant in the crime.in question. We have enumerated E
the reaspns ascribed by the learned trial Judge and the
concurrence given by the High Court, but to satisfy our
conscience, we have thought it seemly to peruse the evidence
with all insight and concern by ourselves.
F
15.As is manifest, the father of the victim, Krishna, PW-
4, had lodged the FIR immediately i.e. at 9:10 p.m. The FIR
clearly stated that the accused had taken away the victim. The
role of the accused and the suspicion was thus immediately
reported. PW-1, mother of the deceased, has deposed that
her daughter, the deceased girl, was playing in the courtyard G
along with other children while she was doing the household
work and when she came back to courtyard, she found that
the child was missing and she saw the appellant going on the
bicycle. Be it clarified, she had not actually seen the accused H
976 SUPREME COURT REPORTS [2014] 14 S.C.R.
A taking away the victim but, as the evidence brought on record
do reveal,. five prosecution witnesses are the eye witnesses
to the faCtum. of accused taking away the minor girl. On a
studied scrutiny of the evidence it becomes graphically clear
that when the mother had gone in search of her, Vandana
B Ramkar, PW-5, had told her that the' child had gone on bicycle
with the appellant. PW-5, in her testimony, has unambiguously
stated about the said fact. It has come in the testimony of PW-
1 that her daughter was wearing a blue midi and black top on
· her person, and she has identified the said clothes which have
c been brought on record as Articles 6, 9 and 10. From the
cross-examination it is manifest that they knew the appellant
earlier, and it is also demonstrable from the evidence of
Vandana Ramkar, PW-5, thatthe appellant had taken the girl
on the bicycle. It has come in the evidence of Baby Sharma, ·
o PW-6, that about 7.30 pm on 3.4.2008 the appellant while
going on the bicycle fell down near grocery shop and, thereafter,
the cyclist and the girl came to purchase "Minto Fresh". As
deposed by her the girl was wearing a black top and blue skirt
on her person. The said witness has identified the appellant
E and also identified the photograph of the girl, Article 12. She
has also identified the clothes of the girl. PW-12, Kavita, has .·
deposed that her husband, Subhash, PW-11 and Krushna,
PW-4, father· of the girl, were working at the same place and
on the fateful day the appellant had come to her house and
F told her husband Subhash, PW-11, who was busy in repairing
a tape-recorder that he could repair the same and after
checking it, he found some parts were damaged and needed
to be replaced and for the said purpose he took Rs.20 from
PW-11 and after 15 minutes came with the part and tried to
G repair it but could·notsucceed. He left the house of PW-11 at
4.00 pm. It is in her testimony that about 6.00 pm the appellant
came to her ho.use again and as she was feeling giddy and
had reclined on the cot, he sprinkled some water on her face.
It is deposed by her that her daughter, Akansha, and the
H deceased were playing in the courtyard and at that time the
VASANT SAMPAT DUPARE v. STATE OF 977
MAHARASHTRA[DIPAK MISRA, J.]
appellant who was standing in the courtyard had told Akansha A
and the minor girl that he would buy them chocolates and,
therefore, they should accompany him. As the daughter of PW-
12 was not wearing proper clothes she came back to her and
the appellant took the deceased with him. According to her
testimony the girl sat on the rod of the bicycle. It is testified by B
herthat as the appellant did not bring back the child, they went
in search of her. She has clearly deposed about the
acquaintance of the appellant with her family. It is apt to state
here that nothing has been elicited in the cross-examination
to raise any doubt about the veracity of her version. c·
16. Manisha, PW-2, has deposed that her father-in-law
runs a tea stall and she had the occasion to know the appellant.
She has supported the version of the prosecution by stating
that the appellant had come to her house about 7.30 p.m. and
a girl aged about four years was with him. She has stated that D
the girl was dressed in black top and blue apparel and on a
query being made, the appellant had introduced the child as
the daughter of his friend and he was going to 'Tekdi-Wadi'
along with the girl. In the cross-examination it has only been
elicited that she was not aware of the character of the appellant. E
In this context, the evidence of Ku. Minal@ Twinkle, PW-3,
· aged about 11 years is extremely significant. She has clearly
deposed that PW-1 is a resident of the locality and she knew
the deceased girl as she used. to come to their house for
playing with her younger sister. She has emphatically stated F
that the deceased was going on a bicycle sitting on the front
rod with one person and on being asked she said she was
going to eat chocolates. She has identified the accused. From
the aforesaid evidence, it is quite vivid that the appellant was
last seen with tbe deceased and there is no justification to G
discredit the testimony of the witnesses. Nothing has been
brought on record that they had any axe to grind against the
appellant. The fact that the. appellant was taking the minor
child on his bicycle, and stopped at shop of Baby Sharma,
PW-6, to purchase chocolate and was also seen at other H
978 SUPREME COURT REPORTS [2014] 14 S.C.R.
A places as testified by other witnesses has been proven to the
hilt. There are really no contradictions and discrepancies that
would compel the court to discard their evidence.
17. Be it noted, in appeal the High Court has observed
that even if the testimony of Minal, PW-3, is left out from
B consideration there is ample evidence to show that accused
had taken the deceased under the guise of offering her
. chocolates. In our considered view, there is no justification
not to rely upon the testimony of the said witness. She has
identified the appellant in court and has stood firm in her
C version. Her identification of the accused-appellant in the open
court is piece ,of substantive evide"nce as has been held in
Dana Yadav II. State of Bihar' and such identification by her
has not been shaken or contradicted. Be it noted, the High
Court has not rejected the said evidence, but has only opined
D that even if the testimony is not accepted, then also the
identification has been proved. We think the testimony of PW-
3 further strengthens the case of the prosecution. Considering
the evidence brought on record in totality, the irresistible
conclusion is that the deceased ' was last seen with the
E appellant. In this context, a fruitful reference may be made to
the observations made in Dharam Deo Yadav II. State of
· UttarPradesh2, wherein it has been held thus:
" ... ifthe prosecution, on the basis ofreliable evidence,
establishes that the missing person was seen in the
F · company of the accused and was never seen thereafter,
it is obligatory on.the part of the accused to explain he
circumstances ii1 which the missing person and" the
accused parted company."
G In the instant case,. the appellant has not offered any
explanation.
18. The next circumstance which has been taken note of
by the learned trial Judge aswell as by the High Court pertains
sec 295 ·
1(2002) 7
H (2014) 5 sec 509
2
VASANT SAMPAT DUPARE v. STATE OF 979
MAHARASHTRA [DIPAK MISRA, J.]
to leading to discovery by the appellant. As is evincible, the A
panch witness, Ariand Borkar, PW-8, has proved Exhibit 29,
the statement of the accused relating to discovery of the spot
wherefrom the dead body was found. He has also supported
the seizure panchnama, Exhibit 31, wherefrom the blood
stained earth, two stones, nikar, Minto Fresh chocolate and B
one empty rapper were seized. According to the said witness
the said articles were seized vide Exhibit 31. PW-10, Santcish
Keche, has proved the seizure of the bicycle from the godown
at the instance of the appellant. The spot which was shown by
the appellant and the godown from which bicycle was seized, . C
as has come in the evidence, is in the vicinity where the dead
body was found. Vide Exhibit 34, the clothes, handkerchief
and foot wear of the accused were seized. The stones smeared ·
with blood had been seized at the instance of the accused.
19. Learned counsel for the appellant has submitted that D
the seizure witnesses cannot be believed as the proper
procedure has not been followed.As we find from the evidence
on record the appellant was in custody and he had led to
recovery. The search and seizure has also been supported in
minute detail by the Investigating Officer. It is also evident that E
the search witnesses are independent witnesses and their
evidence inspire confidence. While accepting or rejecting the
factors of discovery, certain principles are to be kept in mind.
The Privy Council in Pulukuri Kotayya II. King Emperor3
has held thus: F
"It is fallacious to treat the 'fact discovered' within the
section as equivalent to the object produced; the fact
discovered embraces the place.from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this fact. G
Information as to past user, or the past history, of the
object produced is not related to its discovery in the
setUng in which it is discovered. Information supplied by
'AIR 1947 PC 67 H
980 SUPREME COURT REPORTS [2014] 14 S.C.R.
A a person in custody that 'I will produce a knife concealed
in the roof of my house' does not lead to the discovery of
a knife; knives were discovered many years ago. It leads
to the discovery of the fact that a kriife is concealed in
the house of the informant to his knowledge, and if the
B knife is proved to have been used in the commission of
the offence, the fact discovered is very relevant. But if to
the statement the words be added 'with which I stabbed
A', these words are inadmissible since they do not relate
to the discovery of the knife in the house of the informant."
c 20. In Mohmed lnayatul/ah V. The State of
Maharashtra", while dealing with the ambit and scope of
Section 27 of the Evidence Act, the Court held that:-
"Although the interpretation and scope of Section 27 has
been· ..the subject of several authoritative
D pronouncements, its application to concrete cases is not
always free from difficulty. It will therefore be worthwhile
at the outset, to have a short and swift glance at the
section and be reminded of its requirements. The section
says:
E
"Provided that, when any fact is deposed to as
discovered in consequence of information received from
a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
F
the fact thereby discovered may be proved."
The expression "provided that" together with the phrase
"whether it amounts to a confession or not" show that the
section is in the nature of an exception to the preceding
G provisions particularly Sections 25 and 26. It is not
necessary in this case to consider if this section
qualifies, to any extent, Section 24, also. It will be seen
that the first condition necessary for bringing this section
into operation is the discovery of a fact, albeit a relevant
H '(1976) 1 sec 828
VASANT SAMPAT DUPARE v. STATE OF 981
MAHARASHTRA [DIPAK MISRA, J.]
fact, in consequence of the information received from a A
person accused of an offeqce. The second is that the
discovery of such fact must be deposed to. The third is
that at the time of the receipt of the information the
accused must be in police custody. The last but the most
important condition is that only "so much of the B
information" as relates distinctly to the fact thereby
discovered is admissible. The rest of the information has
to be excluded. The word "distinctly" means "directly",
"indubitably", "strictly", "unmistakably''. The word has been
advisedly used to limit and defin'e the scope of the c
provable information. The phrase "distinctly relates to the
fact thereby discovered" is the linchpin of the provision.
This phrase refers to that part of the information supplied
by the accused which is the direct and immediate cause
of the discovery. The reason behind this partial lifting ofo
the ban against confessions and statements made to
the police, is that if a fact is actually discovered in
consequence of information given by the accused, it
affords some guarantee of truth of that part, and that part
only, of the information which was the clear, immediate ,E
and proximate cause of the discovery. No such guarantee
or assurance attaches to the rest of the statement which
may be indirectly or remotely related to the fact
discovered.
At one time it was held that the expression "fact F
discovered" in the section is restricted to a physical or
material fact which can be perceived by the senses, and
that it does not include a mental fact (see Sukhan v.
Crown 5 ; Rex v. Ganee 6 ). Now it is fairly settled that the
expression "fact discovered" includes not only the . G
physical object produced, but also the place from which
it is produced and the knowledge of the accused as to
5AIR 1929 Lah. 344
6AIR 1932 Born 286
H
982 SUPREME COURT.REPORTS (2014] 14 S.C.R.
A this (see Palukuri Kotayya v. Emperor. Udai Bhan v.
State ofUttarPrade§h 7)." ,
21 . In Aftab Ahmad Anasari II. State of Uttarancha/ 8
after referring to the decision in Palukuri Kotawa (supra),
the Court adverted to seizure of Clothes of the deceased which
B were concealed by the accused. In that context, the Court
opined that:-
"The part of the disclosure. statement, \
namely,
. that the
appellant was ready to show t,he place where he had
concealed the clothes of the deceased is clearly
c admissible under Section 27 of the Evidence Act
because the same relates distinctly to the discovery of
the clothes of the deceased from that very place. The
contention that even if it is assumed. for the sake of
argument that the clothes of the deceased were
D recovered from the house of the sister of the appellant
pursuant to the voluntary disclosure statement made by
the appellant, the prosecution has failed to prove that
the clothes so recovered belonged to the deceased and
therefore, the recovery of the clothes should not be treated
E as an incriminating circumstance; is devoid of merits"..
22. In State of Maharashtra v. Damu9 it has been held
as follows:
" ... It is now well settled that recovery of an object is not
F discovery of a fact as envisaged in [Section 27 of the
Evidence Act, 1872]. The decision of the Privy Council
in Pulukuri Kotayya v. King Emperor is the most quoted
authority for supporting the interpretation that the 'fact
. discovered' envisaged in the section embraces the place
G from which the object was produced, the knowledge of
the accused as to it, but the information given must relate
distinctly to that effect."
7
1962 Supp 2 SCR 830
•(2010) 2 sec 583
H •(2000) 6 sec 269
VASANT SAMPAT DUPARE v. STATE OF 983
MAHARASHTRA[DIPAK MISRA, J.]
23. The similar principle has been laid down in State of A
Maharashtra v. Suresh 10 , State of Punjab v. Gurnam
Kaur11 , Aftab Ahmad Anasari v. State of Uttaranchal,
Bhagwan Dass v. State (NCT of Delhi)1 2, Manu Sharma v.
State (NCT of Delhi)1 3 and Rumi Bora Dutta v. State of
Assam14 • B
24. In the case at hand, as is perceptible, the recovery
had taken place when the appellant was accused of an offence,
he was in custody of a police officer, the recovery had taken
place in consequence of information furnished by him and the
panch witnesses have supported the seizure and nothing has C
been brought on record to discredit their testimony.
25.Additionally, another aspect can also be taken note
of. The fact that the appellant had led the police officer to find
out the spot where the crime was committed, and the tap where
he washed the clothes eloquently speak of his conduct as the D
same is admissible in evidence to establish his conduct. In
this context we may refer with profit to the authority in Prakash
Chand v State (Delhi Admn.)1 5 wherein the Court after
referring to the decision in H.P. Admn. II. Om Prakash16 held
~~ E
"... There is a clear distinction between the conduct of a
person against whom an offence is alleged, which is
admissible under Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or relevant fact F
and the statement made to a Police Officer in the course
of an investigation which is hit by Section 162 of the
Criminal Procedure Code. What is excluded by Section
162, .Criminal Prpcedure Code is the statement made
10 (2000) 1 sec
471 G
11
(2009) 11 sec
225
12 (2011) 6 sec
396
13 (201 O) 6 sec
1
14 (2013)7 SCC417 .
"(1979) 3 sec
90.
1•(1972) 1 sec
249 H
984 SUPREME COURT REPORTS [2014] 14 S.C.R.
A · to a Police Officer in the Course of investigation and not
the evidence relating to the conduct of an accused person
(not amounting to a statement) when confronted or
questioned by a Police Officer during the course of an
investigation. For example, the evidence of the
·B circumstance, simpliciter, that an accused person led a
Police Officer and pointed out the place where stolen
articles or weapons which might ~ave been used in the
commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence
c Act, irrespective of whether" any statement by the
accused contemporaneously with or antecedent to such
conduct falls within the purview of Section 27 of the
Evidence Act."
26. In A.N. Vekatesh and another v. State of
D Karnataka 17 it has been ruled that:-
"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
E 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 underSecti6n 8 irrespective
ofthe fact whether the statement made by the accused
F contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 or not as held by
this Court in Prakash Chandv. state (DelhiAdmn.). Even
if we hold that the disclosure statement made by the
accused-appellants (Exts. P~15 and P-16) is not
G admissible under Section 2Tof the Evidence Act, still it
is relevant under Section 8. 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
H "(2005) 7 sec 714
VASANT SAMPAT DUPARE v. STATE OF 985
MAHARASHTRA[DIPAK MISRA, J.)
spot and pointed out the place where the dead body was A
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 B
Section 8 of the Evidence Act."
27. We have referred to the aforesaid authorities only to
highlight that in the present case the provision under Section
27 of Evidence Act is clearly attracted and we see no illegality
in the seizure and the Panch witness have remained C
embedded in their version. Nothing has been suggested to
disregard their evidence. Therefore, we have no hesitation in
holding that there is ample proof of seizure of the articles. That
apart, we have also additionally considered the conduct of the
appellant that speaks eloquently, for it is worthy of being D
considered within the admissible parameters.
28. The next circumstance which has been accepted by
the learned trail Judge and the High Court is the identification
of the clothes and matching of blood stains of the appellant's
clothes. On the clothes that has been seized, the stains of E
human blood of 'P\. Group are detected. The chemical analysis
report, Exhibit 77, has indicated that stains of human blood of
'P\. group which is detected' on seized clothes, and the blood ·
group that has been found on the clothes of the accused
including his underwear and handkerchief is the same. The F
matching of the blood group gains signification in such a
circumstance. The incriminating articles, namely, stones
smeared with blood, the clothes and the blood group matching
is an important circumstance showing complicity of the
appellant in the crime in question. G
29. Another facet which has immense significance is the
injury report. It graphically depicts the injuries on the private
parts of the minor girl which has been caused by sexual
intercourse. Stains of human blood of 'P\. group have also been H
986 SUPREME COURT REPORTS (2014] 14 $.C.R.
A noticed on the front portion of the nikar of the accused as per
n
Exhibit which matches the.blood group found on the stones.
30. The other relevant circumstance that weighs against
the appellant is that the dead body of the deceased was
recovered at the instance of the appellant. It was within his
B special knowledge. The tap where he had washed his clothes
was quite nearby. In this context, it is worthy to note that the
accused had disclosed the facts and on the basis of his
disclosure statement he had led to the place where the dead
body of the victim was found. In Deepak Chandrakant Patil
C · II. State ofMaharashtra 18 , it was observed by this Court:
": .. The fact that he knew about the dead body of the
deceased lying in the garden behind the house of A-1 is
almost clinching in nature and leaves nothing to doubt..."
0 31. Regard being had to the aforesaid circumstances, it
is to be seeri whether on the ba'sis of the said circumstances,
it can be held whether such circumstances lead towards the
guilt of the accused regard being had to the principle that they
lead to a singular conclusion that the appellant is guilty of the
E offence and it does not allow any other probability which is
likely to ·allow the presumption of innocence of the accused. In
this context, we may refer with profit to the decision rendered
more than· six decades back in Hanumant Govind
Nargundka; II. State of M.P. 19 , wherein it has been held as
F follow~: ·
" ... It is well to remember that in cases where the
evidence is of a circumsta~tial nature~ the circumstances
from which the conclusion of guilt is to be drawn should
if) the first instance be fully established, and all the facts
G so established should be consistent only with the
hypothesis of the guilt of ·the accused. Again, the·
circurnstances should be of a conclusive nature and
tendency and they should be' such as to exclude every
"(2006) 1osec 151
H "AIR 1952 SC 343
. VASANT SAMPAT DU PARE v. STATE OF 987
MAHARASHTRA[DIPAK MISRA, J.]
hypothesis but the one proposed to be proved. In other A
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused." · 8
32. In Sharad Birdhichand Sarda v. State of
Maharashtra 20, the five golden principles which have been
stated to constitute the "panchsheel" of the proof of the case
based on circumstantial evidence are that the circumstances
from which the conclusion of guilt is to be drawn must or should C
be and not merely "may be" fully established; that 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; thatthe circumstances should be of a conclusive nature D
and tendency; that they should exclude every possible
hypothesis except the one to be proved; and that 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 E
probability the act must have been done by the accused.
33. In C. Chenga Reddy v. State of A.P21 it has been
held that in a case based on circumstantial evidence, the
circumstances from which the conclusion of guilt is drawn
should be fully proved and such circumstances must be F
conclusive in nature, moreover, all the circumstances should
be complete and there should be no gap left in the chain of ·
evidence. That apart, the proved circumstances must be
consistent only with the hypothesis of the guilt of the accused
and totally inconsistent.with his innocence. G
34. We may also take note of the fact that the appellant
in his statement under Section 313 CrPC, except making a
20(1984) 4 sec 116
21
(1996) 10sec193 H
988 SUPREME COURT REPORTS [2014] 14 S.C.R.
A bald denial, has not stated anything. In this context, we may
refer with profit to a decision in Suresh (supra) wherein it has
been held that there can be three possibilities when an
accused points to the place where the incriminating material
is concealed without stating that it was concealed by himself.
B Elucidating on the three possibilities, the Court observed thus:
" ... One is that he himself would have concealed it.
Second is that he would have seen somebody else
concealing it. And the third is that he would have been
told by another person that it was concealed there. But if
C the accused declines to tell the criminal court that his
knowledge about the concealment was on account of one
of the last two possibilities the criminal court can presume
that it was concealed by the accused himself. This is
because the accused is the only person who can offer
D the explanation as to how else he came to know of such
concealment and if he chooses to refrain from telling the
court as to how else he came to know of ~t. the
presumption is a well-justified course to be adopted by
the criminal court that the concealment .was made by
E himself."
.35. On a critical analysis of the evidence on record, we
are convinced that the circumstances that have been clearly
established are that the appellant was seen in the courtyard
where the minor girl and other children were playing; that the
F appellant was seen taking the deceased on his bicycle; that
he had gone to the grocery shop owned by PW-6 to buy Mint
chocolate along with her; that the accused had told PW"2 that
the child was the daughter of his friend and he was going to
'Tekdi-Wadi' along with the girl; that the appellant had led to
G discovery of the dead body of the deceased, the place where
he had washed his clothes and at his instance the stones
smeared with blood were recovered; that the medical report
clearly indicates about the injuries sustained by the deceased
on her body; that the injuries sustained on the private parts
H
VASANT SAM PAT DUPARE v. STATE OF 989
MAHARASHTRA [DIPAK MISRA, J.]
have been stated by the doctor to have been caused by forcible A
sexual intercourse; that the stones that were seized were
smeared with blood and the medical evidence corroborates
the fact that injuries could have been caused by battering with
stones; that the chemical analysis report shows that the blood
group on the stones matches with the blood group found on B
the clothes of the appellant; that the appellant has not offered
any explanation with regard to the recovery made at his
instance; andthat nothing has been stated in his examination
under Section 313 CrPC that there was any justifiable reason
to implicate him in the crime in question. Thus, we find that C
each of the incriminating circumstances has been clearly
established and the chain of circumstances are conclusive in
nature to exclude any kind of hypothesis, but the one proposed
to be proved, and lead to a definite conclusion that the crime
was committed by the accused. Therefore, we have no D
hesitation in affirming the judgment of conviction rendered by
the learned trial Judge and affirmed by the High Court.
36. Now we shall proceed to deal with the facet of
sentence. In Bachan Singh v. State of Punjab 22 , the Court.
held thus:- E
"(a) The normal rule is that the offence of murder shall
be punished with the sentence oflife imprisonment. The
court can depart from that rule and impose the sentence
of death only if there are special reasons for doing so.
Such reasons must be recorded in writing before F
imposing the death sentence .
.
(b) While considering the question of sentence to be
imposed for the offence of murder under Section 302 of
the Penal Code, the court must have regard to every G
relevant circumstance relating to the crime as well as
the criminal. If the court finds, but not otherwise, that the
offence is of an exceptionally depraved and heinous
character and c;onstitutes, on account of its design and
22
(1980) 2 sec 684 H
990 SUPREME COURT REPORTS [2014] 14 S.C.R.
_A the manner of its execution, a source of grave danger to
the society at la,rge, the court may impose the death
sentence."
37. In the Said case, the Court referred to the decision in
Furman v. Georgia23 and noted the suggestion given by the
B learned counsel about the aggravating and the mitigating
circumstances. While discussing about the aggravating
circumstances, the Court noted the aggravating circumstances
suggested by the counsel which read as follows:-
"Aggravating circumstances: A court may, however,
c in the following cases impose the penalty of death in
its discretion:
(a) if the murder has been committed after previous
planning and involves extreme brutali!y; or
D (b) ifthe murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed
forces of the Union or of a member of any police force
or of any public servant and was committed-
(1) while such member or public servant was on duty;
E
or
(it) in _consequence of anything done or attempted to
be done by such member or public servant in the lawful
discharge of his duty as such member or public servant
whether at the time of murder he was such member or
F
public servant, as the case may be, or had ceased to
be such member or public servant; or
(d) ifthe murder is of a person who had.acted in the
lawful discharge of his duty under Section 43 of the
G Ccide of Criminal Procedure, 1973, or who had
to
rendered assistance a Magistrate or a police officer
demanding his aid or requiring his assistance under
Section 37 and Section 129 of the said Code."
23
H 33 L Ed 2d 346 : 408 US 238 ( 1972)
VASANT SAMPAT DUPARE v. STATE OF 991
MAHARASHTRA [DIPAK MISRA, J.]
After reproducing the same, the Court opined:- A
"Stated broadly, there can be no objection to the
acceptance of these indicators but as we have indicated
already, we would prefer not to fetter judicial discretion
by attempting to make an exhaustive enumeration one
way or the other." · ' B
38. Thereafter, the Court referred to the suggestions
pertaining to mitigating circumstances:-
/
"Mitigating circumstances.-ln the exercise of its
discretion in the above cases, the court shall take into c
account the following circumstances:.
( 1) Thatthe offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death. D
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused cari be reformed and E
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4)
'
above .•
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in F
committing the offence.
(6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he was
G
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct."
After reproducing the above, the Court observed:-
H
992 SUPREME COURT REPORTS (2014) 14 S.C.R.
A "We will do no more than to say that these are
undoubtedly relevant circumstances and must be given
great weight in the determination of sentence."
39. In the said case, the Court has also held thus:-
"It is, therefore, imperative to ,voice the concern that
B courts, aided by the broad illustrative guide-lines
indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in Section
354(3) viz. that for persons convicted of murder, life
c imprisonment is the rule and death sentence an
exception. A. real and abiding concern for the dignity of
human life postulates resistance to taking a life through
law's instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative option is
D unquestionably foreclosed."
. .
40. In Machhi Singh and Others v. State of Punjab 24
a three-Judge Bench has explained the concept of rarest of
the rare cases by stating that:-
E "The reasons why the community as a whole does not
endorse the humanistic approach reflected in 'death
sentence-in-no-case' doctrine are not far to seek. In the
first place, the very humanistic edifice is constructed on
the foundation of 'reverence for life' principle. When a
F member of the community violates this very principle by
killing another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it has
to.be realised that every member of the community is
able to live with safety ~ithout his or her O\,'ln life being
G endangered because of the protective arm of .the
community and on account of the rule of law enforced by
it. The very existence of the rule of law and the fear of
being brought to book operates as a deterrent for those
H ''(1983) 3 sec 470
VASANT SAMPAT DUPARE v. STATE OF 993
MAHARASHTRA[DIPAKMISRA, J.]
who have no scruples in killing others if it suits their ends. A
Every member of the community owes a debt to the
community for this protection."
41 . Thereafter, after adverting to the aspects of the feeling
of the community and its desire for self-preservation, the Court
opined that the community may well withdraw the protection B
by sanctioning the death penalty. The Court in that regard ruled
thus:-
"But the community will not do so in every case. It may
do so 'in the rarest of rare cases' when its collective
conscience is so shocked that it will expect the holders C
of the judicial power centre to inflict death penalty
irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty."
42. It is apt to state here that in the said case, emphasis 0
was laid on certain aspects, namely, manner of commission
of murder, motive for commission of murder, anti-social or
socially abhorrent nature of the crime, magnitude of crime and
personality of the victim of _murder.
43. After so enumerating the propositions that emerged E
out from Bachan Singh (supra) were culled out which are as
follows:-
"The following propositions emerge from Bachan Singh
case:
"(1) The extreme penalty of death need not be inflicted F
except in gravest cases of extreme culpability.
(it) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into
consideration along with the circumstances of the 'crime'. G
(iit) Life imprisonment is the rule and death sentence is
an exception. In other words death sentence must be .
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard fo the
H
994 SUPREME COURT REPORTS [2014] 14 S.C.R.
A relevant circumstances of the crime, and provided, and
only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the
crime and all the relevant circumstances.
B (iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before
c the option is exercised." 1
44. Thereafter, the three-Judge Bench opined that to
apply said guidelines, the following questions are required to
be answered:-
D "(a) Is there something uncommon aboutthe crimewhich
renders sentence of imprisonment for life inadequate
and calls for a death sentence?
(b) Are the ci~cumstances of the crime such thatthere is
no alternative but to impose death sentence even after
E according maximum weightage to the mitigating
circumstances which speak in favour of the offender?"
In the said case, the Court upheld the extreme penalty of
death in respect of three accused persons.
45. In Haresh Mohandas Rajput v. State of
F Maharashtra25 while dealing with the situation where the death
sentence is warranted the two-Judge Bench referred to the
guidelines laid down in Bachan Singh (supra) and the
principles culled out in Machhi Singh (supra) and opined as
follows:-
G
"In Machhi Singh v. State of Punjab this Court expanded
the "rarest· of rare" formulation beyond the aggravating
factors listed in Bachan Singh to cases where the
"collective conscience" of the community is so shocked
H · "(2011 l 12 sec 56
VASANT SAM PAT DU PARE v. STATE OF 995
MAHARASHTRA [DIPAK MISRA, J.]
that it will expect the holders of the judicial power centre A
to inflict the death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining
the death penalty, such a penalty can be inflicted. But the
Bench in this case underlined that full weightage must
be accorded to the mitigating circumstances in a case B
and a just balance had to be struck between the
aggravating and the mitigating circumstances."
After so stating, the Court ruled thus:-
"The rarest of the rare case" comes when a convict would C
be a menace and threat to the harmonious and peaceful
coexistence of the society. The crime may be heinous or
brutal but m<1y not be in the category ~f "the rarest of the
rare case". There must 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 D
constitute a continuing threat to the society. The accused
may be a menace to the society and would continue to
be so, threatening_ its peaceful and harmonious
coexistence. The manner in which the crime is committed
must be such that it may result in intense and extreme E
indignation of the community and shock the collective
conscience of the society. Where an accused does not
act on any spur-of-the-moment provocation and indulges
himself in a deliberately planned crime ahd meticulously
executes it, the death sentence may be the most F
appropriate punishment for such a ghastly crime. The
death sentence may be warranted where the victims are
innocent children and helpless women. Thus, in case the
crime is committed in a most cruel arid inhuman manner
which is an extremely brutal, grotesque, diabolical, G
revolting and dastardly manner, where his act affects the
entire moral fibre of the society e.g. crime committed for
power or political ambition or indulging in organised
criminal activities, death sentence should be awarded.
H
996 SUPREME COURT REPORTS [2014] 14 S.C.R.
A· (See C. Muniappan v. State of T.N26., Dara Singh v.
Republic of /ndia 27 , Surendra Kofi v. state of U.P 28 ,
Mohd. Mannan 29 and Sudam v. state of Maharashtra 30 .)
Thus, it is evident that for awarding the death sentence,
there must be existence of aggravating circumstances
B and .the consequential absence of mitigating
circumstances. As to whether the death sentence should
. be awarded, would depend upon the factual scenario of
the case in hand."
46. In Dhanjoy Chatterjee alias Dhana v. State of
C W.B. 31 , this Court was dealing with the murder of a young girl
of about 18 years. The Court ,took note of the fact that the
accused was a married man of27 years of age, the principles
stated in Bachan Singh's case and further took note of the
fact that rise of violent crimes against women in recent years,
D and thereafter on consideration of aggravating factors and
mitigating circumstances and opined that:-
" In our opinion, the measure of punishment in a given
case must depend upon the atrocity of the crime; the
conduct of the criminal. and the defenceless and
E
unprotected state of the victim. Imposition of appropriate
punishment is the manner in which the courts respond to
the society's cry for justice against the criminals. Justice
demands that courts should impose punishment befitting
. the crime so that the courts reflect public abhorrence of
F
the crime. The courts must not only keep in view the rights
of the criminal but also the rights of the victim of crime
and the society at large while considering imposition of I-
appropriate punishment." ·
G
'"(201 O) 9 sec 567
21
(2011) 2 sec 490
"(2011) 4 sec so
20
(2011) 5 sec 317
'°(2011) 7 sec 125s
H 31
(1994) 2 sec 220
VASANT SAMPAT DUPARE v. STATE OF 997
MAHARASHTRA[DIPAK MISRA, J.]
4 7. After so stating, the Court took note of the fact that A
the deceased was a school going girl and it was the sacred
duty of the appellant, being a security guard, to ensure the
safety of the inhabitants of the flats in the apartment but to gratify
his lust he had raped and murdered the girl in retaliation which
made the crime more heinous. Appreciating the manner in B
which the barbaric crime was committed on a helpless and
defenceless school-going girl of 18 years the Court came to
hold that the case fell in the category of rarest of the rare cases
and accordingly affirmed the capital punishment imposed by
the High Court. .C
48. In Laxman Naik v. State of Orissa 32 the Court has
commenced the judgment with the following passage:-
"The present case before us reveals a sordid story which
took place sometime in the afternoon of February 17, .
1990, in which the alleged sexual assault followed by 0
brutal and merciless murder by the dastardly and
monstrous act of abhorrent nature is said fo have been
·committed by the appellant herein who is none else but
an agnate and paternal uncle of the deceased victim
Nitma, a girl of the tender age of 7 years who fell a prey E
to his lust which sends shocking waves not only to the
judicial conscience but to everyone having slightest sense
of human values and particularly to the blood relations
and the society at large".
F
49. Be it stated, in the said case the High Court had
dismissed the appellant's appeal and confirmed the death
sentence awarded to him. While discussing as regards the
justifiability of sentence the Court referred to the decision in
Bachan Singh's case and opined that there were absolutely
no mitigating circumstances and, on the contrary, the facts of G
the case disclosed only aggravating circumstances against
the appellant. Elaborating further the Court held thus:-
"(1994) 3 _sec 381 H
998 SUPREME COURT REPORTS [2014] 14 S.C.R.
A "The hard facts of the present case are that the appellant
Laxman is the uncle of the deceased and almost
occupied the status and position that of a guardian.
Consequently the victim who was aged about 7 years
must have reposed complete confidence in the.appellant
B and while reposing such faith and confidence in the
appellant must have believed in his bona tides and it was
on account of such a faith and belief that she acted upon
the command of the appellant in accompanying him under
the impression that she was being taken to her village
c unmindful of the preplanned unholy designs of the
appellant. The victim was a totally helpless child there
being no one to protect her in the desert where she was
taken by the appellant misusing her confidence to fulfil
his Just. It appears that the appellant had preplanned to
D commit the crime by resorting to diabolical methods and
it was with that object that he took the girl to a lonely place
to execute his dastardly act."
· After so stating the Court while affirming the death
sentence opined that:-
E . " ....... The victim of the age of Nitma could not have even
ever resisted the act with which she was subjected to.
a
The appellant seems to have acted in beastly manner
as after satisfying his Just he thought that the victim might
expose him for the commission of the offence offorcible
F rape on her to. the family members and others, the
appellant with a view to screen the evidence of his crime
also put an end to the life of innocent girl who had seen
only seven summers. The evidence on record is
indicative of the fact as to how diabolically the appellant
G had conceiveg of his plan and brutally executed it and
such a calculated, cold-blooded and brutal murder of a
girl of a 'very tender age after committing rape cin her
would undoubtedly fall in the category of rarest of the rare
cases attracting no punishment other than the capital
H
VASANT SAM PAT DU PARE v. STATE OF 999
MAHARASHTRA[DIPAK MISRA, J.]
punishment and consequently we confirm the sentence A
of death imposed upon the appellant for the offence under
Section 302 of the Penal Code."
50. In Kamta Tiwari and State of M.P. 33 the appellant
was convicted for the offences punishable under Sections 363,
376;302 and 201 of IPC and sentenced to death by learned B
trial Judge and the same was affirmed by the High Court. In
appeal the two-Judge Bench referred to the propositions culled
out in MachhiSingh and expressed thus:-
"Taking an overall view of all the facts and circumstances C
of the instant case in the light of the above propositions
we are of the firm opinion that the sentence of death ·
should be maintained. In vain we have searched for
mitigating circumstances - but found aggravating
circumstances aplenty. The evidence on record clearly
establishes. that the appellant was close to the family of D
Parmeshwar and the deceased and her siblings used to
·call him 'Tiwari Uncle'. Obviously her closeness with the
appellant encouraged her to go to his shop, which was
near the saloon where she had gone for a _haircut with
her father and brother, and ask for some biscuits. The E
appellant readily responded to the request by taking her
to the nearby grocery shop of Budhsen and handing over
a packet of biscuits apparently as a prelude to his sinister
design which unfolded in her kidnapping, brutal rape and
gruesome murder - as the numerous injuries on her F
person testify; _and the finale was the dumping of her dead
body in a well. When an innocent hapless girl of 7 years
was subjected to such barbaric treatment by a person
who was in a position of her trust his culpability assumes
the proportion of extreme depravity and arouses a sense G
of revulsion in the mind of the common man. In fine, the
motivation of the perpetrator, the vulnerability of the victim,
the enormity of the crime, the execution thereof persuade
"(1996) s sec 250 H
1000 SUPREME COURT REPORTS. (2014] 14 S.C.R.
A us to hold that this is a "rarest of rare" cases where the
sentence of death is eminently desirable not only to deter
others from committing such atrocious crimes but also
to give emphatic expression to society's abhorrence of
such crimes." ·
B 51. In Bantuv. Sta.teofUttarPradesh34afiveyearminor
girl was raped and murdered and the appellant was awarded
death sentence by the trial Court which was affirmed by the
High Court. This Court found the appellant guilty of the crime
and thereafter referred to the principles stated in Bachan
C Singh, Machhi Singh (supra) and Devender Pal Singh v.
. State ofA_.P. 35 and eventually came to hold that the said case
fell in the rarest of the rare category and the capital punishment
was warranted. Being of this view, the Court declined to
interfere with the sentence.
D 52. In Rajendra Pralhadrao Wasnik v. State of
Maharashtra36, the appellant was awarded sentence of death
by the learned trial Judge which was confirmed by the High
Court, for he was found guilty of the offences punishable under
Sections 376(2)(f), 377 and 3Q2 IPC. In the said case, the
E prosecution had proven that the appellant had lured a three
year old minor girl child on the pretext of buying her biscuits
and then raped her and eventually being apprehensive of being
identified, killed her. In that context, while dismissing the
appeal, the Court ruled thus:
F
"When the Court draws a balance sheet of the
aggravating and mitigating circumstances, for the
purposes of determining whether the extreme sentence
of death should be imposed upon the accused or not,
the scale of justice only tilts against the accused as there
G
is nothing but aggravating circumstances evident from
the record of the Court. In fact, one has to really struggle
34 (2ooa) 11 sec 113
"(2002) s sec 234
H "'(2012) 4 sec 37
VASANT SAMPAT DUPARE v. STATE OF 1001
MAHARASHTRA[DIPAK MISRA, J.]
to find out if there were any mitigating circumstances A
favouring the accused.
Another aspect of the matter is that the minor child was
helpless in the cruel hands of the accused. The accused
was hqlding the child in a relationship of "trust-belief' and
"confidence", in which capacity he took the child from B
the house of PW 2. In other words, the accused, by his
conduct, has belied the humari relationship of trust and
worthiness. The accused left the deceased in a badly
injured condition in the open fields without even clothes.
This reflects the most unfortunate and abusive facet of C
human conduct, for which the accused has to blame no
one else than his own self."
53. At this juncture, we may refer to some authorities
where in cases of rape and murder, the death penalty was not
awarded. In State of T.N. II. Suresh and Another7 , the Gourt 0
unsettled the judgment of acquittal recorded by the High Court
and found that the accused was guilty of rape of a pregnant
woman and also murder. While awarding the sentence of life
imprisonment, the Court expressed the view:-
E
"The above discussion takes us to the final conclusion
that the High Court has seriously erred in upsetting the
conviction entered by the Sessions Court as againstA-
2 and A-3. The erroneous approach has resulted in
miscarriage of justice by allowing the two perpetrators F
of a dastardly crime committed against a helpless young
pregnant housewife who was sleeping in her own
apartment with her little baby sleeping by her side and
during the absence of her husband. We strongly feel that
the error committed by the High Court must be undone G
by restoring the conviction passed againstA-2 andA-3,
though we are not inclined, at this distance of time, to
restore the senten.ce of death passed by the trial court
on those two accused".
"(1998) 2 sec 372 H
1002 SUPREME COURT REPORTS (2014] 14 S.C.R.
'•
A From the aforesaid authority, it is seen that the Court did
not think it appropriate to restore the death sentence passed
by the trial court regard being had to the passage of time.
' .
54. In Akhtar II. State of U.P. 38 , the appellant was found
guilty of murder of a young girl after committing rape on her
B and was sentenced to death by the learned Sessions Judge
and-the said sentence was confirmed by the High Court. The
two-Judge Bench referred to the decisions in Laxman Naik .
(supra), Kamta Tiwari (sup.ra) and addressed itself whether
the case in hand was one of the rarest of the rare case for
C which punishment of death could be awarded~ The Court
distinguished the two decisions which have been referred to
hereinabove and ruled:-
"In the case in hand on examining the evidence of the
three witnesses it appears to us that the accused-
D appellant has committed the murder of the deceased girl
not intentionally and with any premeditation. On the other
hand the accused-appellant found a young girl alone in a
lonely place, picked her up for committing rape; while
committing rape and in the process by way of gagging
E the girl has died. The medical evidence. also indicates
that the death is on account of asphyxia. In the
circumstances we are of the considered opinion that the
case in hand cannot be held to be one of the rarest of
rare cases justifying the punishment of death".
F
55. · 1n State of Maharashtra II. Barat Fakira Dhiwal" 9 ,
a three-year old girl was raped and murdered by the accused.
The learned trial Judge convicted the accused and awarded
the death sentence. The High Court had set aside the order
G of conviction and acquitted him for the offences. This Court,
on scrutiny of the evidence found the accused was guilty of
rape and murder. Thereafter, the Court proceeded to deal
with the sentence and in that context observed:-
"(1999) 6 sec 60
H "(2002) 1 sec 622
VASANT SAMPAT DUPARE v. STATE OF 1003
MAHARASHi:_RA[DIPAK MISRA, J.]
"Regarding sentence we would have concurred with the A
Sessions Court's view that the extreme penalty of death
can be chosen for such a crime. However, as the accused
was once acquitted by the High Court we refrain from
imposing that extreme penalty in spite of the fact that
this case is perilously near the region of "rarest of the B
rare cases", as envisaged by the Constitution Bench in
Bachan Singh v. State of Punjab. However, the lesser
optior;i is not unquestionably foreclosed and so we alter
·the sentence, in regard to the offence under Section 302
IPC, to imprisonment for life". c
56. Keeping in view the aforesaid authorities, we shall
proceed to adumbrate what is the duty of the Court when the
collective conscience is shocked because of the crime
committed. VVhen the crime is diabolical in nature and invites
abhorrence of the collective, it shocks the judicial conscience D
and impels it to react keeping in view the collective conscience,
cry of the community for justiee and the intense indignation the
manner in which the brutal crime is committed. We are
absolutely conscious that Judges while imposing sentence,
should never be swayed away with any kind of individual E
philosophy and predilections. It should never have the flavour
of Judge-centric attitude or perception. It has to satisfy the
test laid down in various precedents relating to rarest of the
rare case. We are also required to pose two questions that
has been stated in Machhi Singh's case. F
57. Presently, we shall proceed to dwell upon the manner
in which the crime was committed. Materials on record clearly
reveal that the appellant was well acquainted with the
inhabitants of the locality and as is demonstrable he had
access to the house of the father of the deceased and. the G
children used to call him "uncle". He had lured the deceased
to go with him to have chocolates. It is an act of taking
advantage of absolute innocence. He had taken the deceased
from place to place by his bicycle and eventually raped her in
H
1004 SUPREME COURT REPORTS (2014] 14 S.C.R.
A a brutal manner, as if he had the insatiable and ravenous
appetite. The injuries caused on the minor girl are likely to
send a chill in the spine of the society and shiver in the marrows
of human conscience. He had battered her to death by
assaulting her with two heavy stones: The injured minor girl
B could not have shown any kind of resistance. It is not a case
where the accused had a momentary lapse. It is also not a
case where the minor child had died because of profuse
bleeding due to rape but because of lh!'l deliberate cruel
assault by the appellant. After the savage act was over, the
c coolness of the appellant is evident, for he washed the clothes
on the tap and took proper care to hide things. As is manifest,
he even did not think for a moment the trauma and torture that
was caused to the deceased. The gullibility and vulnerability
of the four year girl, who could not have nurtured any idea about
o the maladroitly designed biological desires of this nature, went
with the uncle who extinguished her life spark. The barbaric
act of the appellant does not remotely show any concern for
. the precious life of a young minor child who had really not seen
life. The crirninality of the conduct of the appellant is not only
E depraved and debased, but'can have a menacing effect on
th.e society. ltis calamitous. In this context, we may fruitfully
refer to a passage from Shyam Narain II. State (NCT of
Delhi)4°, wherein ii has been observed as follows:
"The wanton lust, vicious appetite, depravity of senses,
F mortgage of mind to the inferior endowments of nature,
the servility to the loathsome beast of passion and
absolutely unchained carnal desire have driven the
appellant to commit a crime which can bring in a ''tsunami"
of shock in the mind of the collective, send a chill down
G the spine of the society, destroy the civilised stems of
the milieu and comatose the marrows of sensitive polity".
In the said case, while describing the rape on an eight
year old girl, the Court observed:
H "(2013) 7 sec 77
VASANT SAMl?AT DU PARE v. STATE OF .-1005.
MAHARASHTRA [DIPAK MISRA, J.] .
. "Almost for the last three decades, this Court has been A
expressing its _agony and distress pertaining to the
increased rate of crimes against women. The eight year
old girl, who was supposed to spend time in cheerfulness,
was dealt with animal passion and her dignity and purity
of physical frame was shattered. The plight of the child B
·and the shock suffered by her can be well visualised.
The torment on the child has the potentiality to corrode
the poise and equanimity of any civilised society. The
age-old wise saying that "child is a gift of.the providence" .
enters into the realm of absurdity. The young girl, with _C
efflux of_tinie, would grow with a traumatic experience,
. an unforgettable shame. She shall always be haunted by
the memory replete with heavy crush of disaster constantly
echoing the chill air of the past forcing her to a state of
nightmarish· melancholia. She may not be able to assert . o
the honour of a woman for no fault of hers." .
'
58: In the case at hand, as we find, not only the rape was
committed in a brutal manner but murder was also committed
in a barbaric manner. The rape cit a minor girl child is nothing
but a monstrous burial of her dignity in the darkness. It is a :E
j
crime against the holy body of a girl child and the soul of the
'.
society and such a crime is aggravated by the manner in which
~has been committed. The nature of the crime and the manner
in which it. has beeri committed speaks about its
uncommonness. The crime speaks of depravity, degradation F
and uncommonality. It is diabolical artd barbaric. The crime
was committed in an inhuman manner. Indubitably, these go a
long way to establish the aggravating circumstances; .·•.
. .
59. We are absolutely conscious that mitigating
circumstances are to be taken into consideration. Learned G
counseLfor_ the appellant pointing out the mitigating
circumstances would submit that the appellant is in his mid
fifties and there is possibility of his reformation. Be it noted,
the appellant was aged about forty-seven years at the time of .
commission of the crime. As is noticeable, there has been no H
1006 SUPREME COURT REPORTS [2014] 14 S.C.R.
A remorse on the part of the appellant. There are cases when
this Court has commuted the death sentence to life finding
that the accused has expressed remorse or the crime was not
pre-meditated. But the obtaining factual matrix when unfolded
stage by stage would show the premeditation, the proclivity
B and the rapacious desire. Learned counsel would submit that
the appellant had no criminal antecedents but we find that he
was a history-sheeter and had number of cases are pending
against him. That alone may not be sufficient. The appalling
cruelty shown by him to the minor girl child is extremely shocking
C and it gets accentuated, when his age is taken into
consideration. It was not committed under any mental stress
or emotional disturbance and it is difficult to comprehend that
he would not commit such acts and would be reformed or
rehabilitated. As the circumstances would graphically depict,
o he would remain a menace to the society, for a defenceless
child has become his prey. In our considered opinion, there
are no mitigating circumstances.
60. As we perceive, this case deserves to fall in the
category of rarest of the rare cases. It is inconceivable from
E the perspective of the society that a married man aged about
two scores and seven make a four year minor innocent girl
child the prey of his lust and deliberately cause her death. A
helpless and defenceless child gets raped and murdered
because of the acquaintance of the appellant with the people
F of the society. This is not only betrayal of an individual trust but
destruction and devastation of social trust. It is perversity in
its enormity. It irrefragably invites the extreme abhorrence and
indignation of the collective. It is an anathema to the social
balance. In our view, it meets the test of rarest of the rare case
G and we unhesitatingly so hold. ·
61. Consequently, we dismiss the criminal appeals
preferred by the appellant and affirm the death sentence.
Devika Gujral Appeals dismissed.
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