Ravishankar @ Baba Vishwakarma v. the State of Madhya Pradesh
SURYA KANT, J.
1. Delay condoned. Leave granted.
2. Hovering between life and death, the appellant assails t he
judgment dated 6 th December, 2016 passed by the High Court of Madhya
Pradesh at Jabalpur whereby the death reference made by the IIIrd
Additional Sessions Judge, Gadarwara, District Narsinghpur (M.P.) has
been confirmed and the appellant’s criminal appeal has been dismissed.
291
Background:
3. The appellant was tried for having committed offences under
Sections 363, 366, 376(2)(i), 376(2)(n), 376(2)(j), 376(2)(m), 376-A, 302
and 201 of the Indian Penal Code (for short IPC) and alternatively under
the corresponding provisions of the Protection of Children from Sexual
Offences Act, 2012 (for short ‘POCSO Act’). Through judgment an d
order dated 19 th July 2016, the Trial Court held the appellant guilty of
kidnapping a 13 year-old girl, committing rape on her, killing he r by
throttling and thereafter destroying the evidence by throwi ng her half
naked body in a dry well. These crimes were held as being ‘rarest of the
rare’ and the appellant was sentenced to death under Section 376-A of
the Indian Penal Code, 1860 (I.P.C.). In terms of Section 366 of t he
Code of Criminal Procedure, 1973 (Cr.P.C.), the Trial Court made a
reference to the High Court for confirmation of the death sentence. The
appellant also filed criminal appeal challenging this judgment and order
passed by the Trial Court. The High Court on 6 th December 2016, through
a common order, both dismissed his appeal and confirmed the Trial Court’s
death reference giving rise to this special leave petition.
4. At the outset, it must be mentioned that when the appellant’s
special leave petition came up for hearing before a Three Judge Bench
of this Court on 10 th January, 2018, the following order was passed:
“Mr. Arjun Garg, learned counsel for the State prays fo r
two weeks’ time to argue the matter on the conversion of
sentence from death to life, as we are not inclined to
interfere with the conviction .
xxx xxx xxx”
5. Thus, the limited issue which survives for our consideration is
whether or not the appellant deserves to be imposed with the extreme
sentence of death penalty?
6. As noted by this Court in Bhupinder Sharma v. State of
Himachal Pradesh 1,that the mandate of not disclosing identities of the
victims of sexual offences under Section 228A of I.P.C. ought to be
observed in spirit even by this Court:
1 (2003) 8 SCC 551
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J. ]
“2. We do not propose to mention name of the victim. Section
228-A of the Indian Penal Code, 1860 (in short the “IPC”) makes
disclosure of identity of victim of certain offences punisha ble.
Printing or publishing name of any matter which may make known
the identity of any person against whom an offence under Sections
376, 376-A, 376-B, 376-C or 376-D is alleged or found to have
been committed can be punished. True it is the restriction doe s
not relate to printing or publication of judgment by High Court or
Supreme Court. But keeping in view the social object of preventing
social victimization or ostracisms of the victim of a sexual offence
for which Section 228-A has been enacted, it would be appropriate
that in the judgments, be it of High Court or lower Court, the
name of the victim should not be indicated. We have chosen to
describe her as ‘ victim’ in the judgment.”
We are thus not disclosing the victim’s name and instead ar e
referring to her as the “deceased” throughout this judgment.
Relevant Facts:
7. The necessary facts are to the following effect: P.W.3
(Purushottam Kaurav – grandfather of the deceased), resident of village
Baglai filed a report at the Police Station at Gotitoria on 22 nd May, 2015
at about 4.00 p.m. giving information of the disappearance of his 13 year
old granddaughter. The deceased and her 11 year old brother Harinarayan
were children of the informant’s younger son, Satyaprakash and ha d
been staying with their mother at the latter’s parenta l home in the
neighbouring village, Chargaon, for the last four months. The deceased
visited the informant’s home in village Baglai with her mother at around
10 a.m. the previous day. The deceased did a few household chores
while her mother cooked food for the family. Later, she went out to play
with her friend who lived in the neighbourhood. Upon returning back she
told her mother that she was not feeling good and requested that t hey
should return back to her maternal uncle’s home in Chargaon. Her mother
assured her that they would return later that afternoon and both of them
went to sleep. Upon waking up at 3.00 p.m., the mother discovered that
the deceased was not around. The mother made unsuccessful enquiries
in the neighbourhood and later asked the deceased’s 11 year old brother
to go and enquire whether she had gone to Chargaon on her own. The
brother came back in the evening without any news of the victim.
Thinking that their daughter might have gone to her paternal aunt’s home
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in the nearby village of Aadegaon, both parents slept. Next morning
enquiries were made at Aadegaon but it was informed that the deceased
had not gone there either. Worried, the mother herself left for her parental
home at around 9-10 a.m. and informed her brother Vishram that t he
victim was missing. Vishram and the deceased’s mother se t out on a
wide search in the neighbourhoods of Chargaon with little result. Whilst
returning back to Baglai, the mother identified the deceased’s salwar
and one chappal on the embankment of the water-channel which divided
the villages of Baglai and Chargaon. Upon reaching her matrimoni al
home in Baglai, the mother informed her father-in-law about her
daughter’s disappearance who then approached the po lice. P.W.3
thereafter narrated facts of deceased’s disappearan ce and gave
description of his grand daughter who was studying in Class 6 at that
time. The Police, accordingly, registered a crime case under Section
363, IPC.
8. Subsequently the police took P.W.3 to the spot where the salwar
and the chappal were recovered. Upon a local search of the area with
some villagers and relatives, the semi-nude body of the dec eased was
discovered lying in a supine position in a dry well. The dead body was
taken out of the well and it was duly identified by her grandfather, P.W.3.
A spot map of the place of occurrence was drawn, an d Seizure
Panchnama of black colour salwar and one Chappal of the dece ased
was also prepared.
9. P.W.20 (Harsha Singh, Senior Scientific Officer) advised the
police on handling the body of the deceased and later inspected the
decomposing dead body at 9:45 p.m. at the Government Hospital, Chichli.
After noticing various injuries including ligature marks on the neck, she
gave a report that death of the deceased was homici dal. P.W.12
(Dr. Kinshu Jaiswal) conducted postmortem of the body next morning
at 9 a.m. Examining the decayed state of the body, P.W. 12 esti mated
time of death 48-72 hours before. She noted various injuries on the body
including a ruptured hymen, congested trachea and pale lungs. Vaginal
slides were prepared and sent for inspection. Hyoid bone, fem ur bone
and three jars of the viscera (containing pieces of stomach, small intestine,
heart, lungs, liver, spleen, kidney as well as separate salt solution sample)
were also sent for examination. Importantly, it was noticed that the skull
and vertebrae were intact. The vaginal slides, salwar and fiber chappal
of the deceased were sent to Forensic Science Laboratory, Sagar (FSL,
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J. ]
Sagar) for DNA profiling, whereas the sealed container(s) with different
parts of the deceased’s body were sent to the Medico-legal Institute,
Bhopal for chemical testing. Subsequently, the dead body of the deceased
was handed over to the family for last rites and stateme nts of some
witnesses were recorded under Section 164 of Cr.P.C. before a Judicial
Magistrate.
10. During the course of investigation, blood samples of various
suspects were taken for DNA analysis. As part of the first batch, blood
samples of Hargovind Kaurav, Nandi alias Anand Vanshkar and Baba
alias Ashok Kaurav were taken and sent to FSL, Sagar for DNA matching
on 14 th June, 2015. Later on 22 nd June, 2015 samples of the appellant
(Baba alias Ravishankar Vishwakarma), Roopram alias Ruppu Kaurav
and Manoj alias Halke Yadav was similarly sent for DNA analysis. After
confirmation by the FSL stating that only the DNA extracted from the
appellant matched with that on the vaginal slide of the deceas ed, the
appellant was arrested on 20 th July, 2015. Charge sheets were filed
against him by the investigating agency on 18 th September, 2015.
Trial Court’s Analysis:
11. The Trial Court formulated various questions for consideration
including determination of the age of the deceased, factum of kidnapping
by accused, commission of rape, causing death by th rottling and
destruction of evidence by dumping the dead body by the appellant.
12. With a view to bring home the appellant’s guilt, the prosecution
examined as many as 24 witnesses, whereas none were examined by
the appellant in defence. A brief summarisation of the testi monies of
important witnesses and evidences has been made hereunder.
13. P.W.1 (Sukhram Kotwar) who was posted as Gram Kotwar
at Baglai, admitted to accompanying the grand father of the dece ased
(P.W.3) to the police station to lodge a missing report of the deceased.
He also found location of the deceased’s body and was a wit ness to
seizure of the slipper, panchnama and later to the collectio n of three
blood samples and arrest of the appellant by the police.
14. P.W. 2 (Shobhabai — mother of the deceased) stated in he r
deposition that she knew the appellant, for she had borrowe d money
from his family in the past. She claimed to be living in her parental home
in village Chargaon, which was separated by a water channel from her
295
matrimonial village of Baglai, since the past few months for treatment of
an eye injury. She had returned to her in-laws’ house on the morning of
21 st May, 2015 with the deceased. When she reached home, the wife
and daughter of the accused came and asked her to repay the borrowed
money. After some time her daughter (the deceased) told her that she
was going to play with her friend Priyanka at her house. The deceased
came back from her friend’s house and told P.W.2 that she w as not
feeling good and requested that she be taken back to her maternal uncle’s
house in Chargaon. At about 3.00 p.m., the witness found that her
daughter was not there at their home. Her husband enquire d from
Priyanka’s house but came to know that deceased was not there. P.W.2,
thereafter, called her son and sent him to her parental home at Chargaon
about 5.00 p.m. Her son came back home and informed that the deceased
was not found in Chargaon also. She again sent her son to Chargaon to
look out for her properly. It was, however, confirmed that the deceased
had not gone to Chargaon and she could not be found anywhere till 6.00
p.m. Thinking that the deceased might have gone to her parental aunt’s
house in Aadegaon, P.W.2 and her husband slept for the night. The next
morning P.W.2 got a telephonic call made to Satyaprakash’s sister in
Aadegaon but failed to trace the deceased there as well. A search was
made on the motorcycle at the houses of various relatives and while
P.W.2 was returning to Baglai from her parental home along wi th her
nephew, Dharmendra, she spotted and identified the salwar and slipper
of the deceased which were lying on the roadside on the embankme nt
of the water channel separating Baglai from Chargaon. P.W.2 then
informed her father-in-law, P.W.3, and then the matter was reported to
the Police. The Police thereafter started looking for her daught er and
then she got to know that the dead body of her daughter was locat ed
inside the well of one Darshan Kaurav. P.W.2 did not suspect anyone at
that time. In cross-examination she admitted that she had told the police
that one Abhishek alias Pillu of the village used to offer paan masala to
the deceased and that police had also gone to Baba alias Ashok’s house
for his interrogation and for conducting Narco test but he fled the next
day from the village.
15. P.W.3 (Purushottam Kaurav) — grandfather of the deceased-
victim has deposed regarding lodging of the missing report with the Police
and also stated that he identified the dead body of his granddaughte r
upon recovery from a dry well. He too admitted that a person named
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J. ]
Baba alias Ashok was called by the Police but he had fled and that some
more persons were also interrogated by the Police.
16. P.W.4 (Satyaprakash), the father of the deceased, narrate d
the efforts put in by him and other relatives for the search of his daughter
and how during that search the dead body was found in the dry well
constructed in the field of Darshan Kaurav.
17. P.W.5 (Sharda) who is well acquainted with the appellant as
well as the family of the deceased is also a crucial prosecution witness.
He deposed that on the fateful day at about 3.00 p.m. he, along with his
wife Aalop Bai, was going on a bicycle when both of them spotted the
appellant with the deceased who was wearing a black frock a nd black
pant ‘near the peepal tree, near the field of Natthu Patel’. He has further
stated that his statement was recorded by the Police two days after the
incident and that “it is true that the Police had committed a ssault with
me also. It is true that Police had stated that they would arrest the rascal
and they committed an assault so I had stated out of nervousness .” In
the very next breath, he, however, denied that the police had assaulted
and were forcing him to give false testimony before the Court.
18. P.W.6 (Itta alias Kichchu) has stated that about a year prior to
the incident while he had gone to defecate near a reservoir after disposing
of some cowdung, he had seen the appellant feeding biscuits t o the
deceased at the water channel near the shrubs. He told this fact to
P.W.7 (Nimma Jeeji), who was harvesting sugarcane in the field of one
Shatrughn Patel. In his cross-examination, he admitted that his statement
was recorded one and a half months’ after the incident by the Police.
19. P.W.7 (Nimma Bai) endorsed the statement of P.W.6 to the
extent that about one year before the occurrence, P.W.6 had told he r
that the appellant was feeding biscuits to the deceased. She has admitted
in her cross-examination that she herself had not seen the appellant
feeding biscuits to the deceased.
20. P.W.10 (Kuldeep Kaurav, a teacher in the Government Middle
School, Chargaon) produced school records to prove that the deceased
was admitted in 6 th standard on 16 th June, 2014 and as per the date of
her birth she was hardly 13 years old.
21. P.W.13 (Rajesh Kaurav) who was Patwari, testified that he
prepared spot map of the place of incident and that afterwards he took
297
signatures of people present in the vicinity and dispatched them to the
Station House Officer. In cross-examination, he admitted that details of
the well were not mentioned in the spot map, but volunteered that the
well was abandoned and had shrubs growing in it and the grass/cro ps
growing outside had hampered the well’s visibility from t he Baglai-
Chargaon road which was situated 20 feet away.
22. P.W.14 (Hargovind Kaurav) was the cousin of the deceased
who admitted to seeing the deceased’s body in a dry well i n a supine
position. He stated that the well was not visible from th e road and
volunteered that he was witness to the appellant’s statem ent(s) before
the police and also witnessed seizure of the second slipper from a nearby
water channel later.
23. P.W.15 (Prakashchand Mehra) is son of the Kotwa r of
Chargaon and testified that the spot map and panchnama were prepared
before him, blood samples of three suspects (including appellant) were
taken in his presence and the missing slipper was seize d by the police
with him. In cross-examination, however, he admitted that he was n ot
present during interrogation of the appellant by the police.
24. P.W.17 (Sanjay Kumar Nagvanshi) was the Tehsildar at
Gadarwara in August, 2015. He stated that he got conducted identification
proceedings to match the slipper recovered through the appellant to
ensure that it belonged to the deceased. He testified to procuring similar
looking black slippers from his staff members and mixing them with the
slipper received from the police station. Although both P.W.2 and P.W.3
were called by him, he testified that only P.W.2 came into his office and
identified the deceased’s slipper correctly.
25. P.W.18 (M.D. Yadav) was posted as Assistant Sub-Inspector
at police station Chichli and was the police officer who lodged the missing
report on the basis of information given by P.W.3 on the afternoon o f
22 nd May, 2015. He also testified to seizing the slipper an d salwar
presented by P.W.2.
26. P.W.19 (C.M. Shukla) was posted as S.H.O. who got prepared
spot map and was also present during identification proceedings of the
deceased’s body. Upon being confronted during cross-examination as to
why the time of disappearance was recored as 10.00 p.m. in the
Roznamcha, he explained that it was a mistake.
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J.]
27. P.W.21 (Krishnakant Kaurav) was posted as a Gram Rozgar
Sahayak in Gram Panchayat Chargaon and testified to witnessing
interrogation of the appellant, especially his disclosure of location of the
missing slipper and recovery of the same.
28. P.W.22 (Niyazul Khan) was the Inspector who got blood sample
of the appellant extracted at the Government Hospital, Chic hli and
prepared seizure memo of sealed vials containing blood of the appellant
and two others, and forwarded them to FSL Sagar. The Trial Cour t
refused permission to the Defence Counsel to ask questions relating to
the FIR, postmortem report and Roznamcha holding that questions relating
to investigation only conducted by the witness could be asked from him.
29. P.W.23 (D.V.S. Sagar) was posted as Station House Officer
at Police Station Chichli and testified to recording memorandum statement
of accused in presence of P.W.15 and P.W.20, on which basis he seized
the missing black fibre slipper of right leg from near the shrubs under a
tree near the spot of incident in Darshan Kaurav’s field.
30. P.W.24 (Rajkumar Dixit) was the Head Constable who seized
sealed viscera jars and vaginal slides which were produced by Head
Constable Chetram. He admitted to not checking the sealed pa rcels
himself and stated that he safely locked them in a locker at the police
station.
31. Over and above the above-mentioned oral testimonies, we
may now refer to the medico-scientific evidence led by the prosecution
to connect the appellant with the crime.
32. P.W.8 (Dr. R.R. Chaudhary), a Senior Scientific Officerfrom
FSL, Sagar has deposed that on 4 th June, 2015 he examined three exhibits;
Slide marked as Ex. A , Salwar marked as Ex. B and Chappal ma rked
as Ex. C which belonged to the deceased. In the course of examination,
human sperms were found on the slide (Ex. ‘A’) of the deceased,
however, only human blood was found on the salwar (Ex. ‘B’). No
blood or semen was found on the slipper (Ex. ‘C’). The blood group of
the blood stained on the salwar could not be detected as a lot of dirt was
stuck on it.
33. P.W.9 (Dr. C.S. Jain) was posted as Forensic Expert-Analysis
at Medico-Legal Institute, Bhopal on 12 th June, 2015 when three viscera
jars (Exs. ‘D’, ‘E’ and ‘F’) comprising different parts of the body of
299
deceased were received with their seals intact. However, when opened
these viscera samples were discovered in a condition unfit for examination
as the liquid had turned stinky and dusty, and the tissues had decayed.
After comparing the postmortem report, evaluation of t ime and the
sequence of the events as also the report of the State Forensic Scie nce
Laboratory, P.W.9 opined as follows, which could not be discredited at
all in his cross-examination:
“12. Opinion :- After the analysis of facts described in the
documents which have been examined on the basis of my subject
knowledge, articles of books and experience gained from the 10984
post mortems conducted by me for continuously more than 33
years I am of the opinion that:-
1. The deceased died due to throttling.
2. Sexual intercourse was performed with the deceased befor e
her death which amounted to rape on considering the age.
3. The deceased was dragged before her death and inj uries
indicating the struggle were also present.
4. The slides and salwar of the deceased were kept for D. N.A.
examination. I did not know their result up to the preparation of
the report otherwise other opinion could also be expresse d. It
would be appropriate to enclose the said report in the case af ter
obtaining it immediately. If the person/s performin g sexual
intercourse with the deceased are known then the D.N.A of their
sperms should be matched with the D.N.A. of the sperms present
in the vaginal slides because if they matched then it w ould be
scientifically confirmed that the sexual intercourse was performed
by them. In this regard my report is ExP-11 which is in 5 pages.
The A to A part on it bears my signature.”
34. P.W.11 (Dr. Pankaj Srivastava) was posted as Scient ific
Officer at the DNA Unit of FSL, Sagar during the period, 2 4 th June,
2015 to 20 th July, 2015 and he submitted the DNA test report which
shows that the DNA extracted from the appellant’s blood matched with
DNA from the vaginal smear slide and salwar of the decease d. It has
been specifically been recorded that bodily fluids of the other five suspects
were not found present in the source vaginal slide or salwar of the victim.
The witness was subjected to an extremely lengthy cross-examina tion
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J. ]
but nothing that could distract the conclusion he has drawn in the report
referred to above. His opinion is extracted hereunder:
“1….
1. Male D.N.A. profile was found on the source vaginal smear
slide and salwar of the deceased …...
2. The body fluids of suspect Hargovind Kaurav, suspect Nandi
@ Anand and suspect Baba @ Ashok were not found present in
the source vaginal slide and salwar of the deceased …...
3. The body fluids of suspect Roopram and suspect Manoj were
not found present in the source vaginal slide and salwar of the
deceased ……...
4. The D.N.A. profile matching with that of the suspect Baba @
Ravishankar was found present in the source vaginal slide and
salwar of the deceased ……...
2. The opinion given by me in regard to the suspect Hargovind
Kaurav, Nandi @ Anand Kaurav and Baba @ Ashok is ExP-15
which is in 3 pages and the A to A part on it bears my signature.
The opinion given by me in regard to the suspect Bab a @
Ravishankar, Roopram @ Ruppu Kaurav and Manoj @ Halke
Yadav is ExP-16 which is in 2 pages and the A to A part on i t
bears my signature.”
35. P.W.12 (Dr. Kinshuk Jaiswal), who was posted as Medical
Officer at Government Hospital Chichli on 23 rd May, 2015, at at
9.00 a.m. conducted postmortem on the dead body of the deceased. She
has stated that the putrefaction of the body had started and foul smelling
odour was present. She estimated time of death at 48-72 hours be fore
or possibly earlier depending upon environmental conditions. She also
found chara (fodder) inside the hair of the deceased and de posed that
two vaginal slides of the deceased were sent for examination. What she
noticed in the postmortem examination was as follows:
“Abrasions present in the whole left portion of the body of the
deceased. Extending from lateral aspect of left arm to left forearm
15 cm x 3.5 cm irregular in shape. Left thigh lateral 8 cm x 3 cm.
Left leg (lateral) 7.5 cm x 2.5 cm irregular shape. Left buttock 15
cm x 4.5 cm irregular. Neck swollen. Contusions present o n
anterior aspect of neck both sides. Contusions present over right
301
axillary area 5 cm x 2.5 cm over left supraclavicular area (6 cm x
2 cm), left arm (5 cm x 2.5 cm), left scapular area (8 cm x 2.5
cm). Contusion present over right thigh medical aspect (10 cm x
2.5 cm). Perineal area swollen and edematous. Pubic hair absent.
Hymen ruptured. Two vaginal slides prepared and send + for
biochemical examination. Feaces passed. Contusion present over
left foot (dorsally) 3.5 cm x 1.5 cm and contusion present ove r
right palm (palmar aspect) of size 2 cm x 1.5 cm. …. (sic.) ”
36. P.W.16 (Dr. Kshipra Kaurav) was posted as Medical Officer
at Government Hospital, Chichli on 8 th July, 2015 when she was asked
to take the blood sample of the appellant which she kept in a vial, sealed
it and handed it over to the SHO who prepared the seizure memorandum
Ex. P-5. She has volunteered in her cross-examination that the b lood
samples of two more persons were also taken prior to that of the appellant
on the same day and that photographs of all the persons whos e blood
samples were taken were duly attested. She further volunteere d that
the identification Form Ex. P-9 along with photographs of the appellant
were also attested by her.
37. Essentially, this is a case of circumstantial evidence which is
supported by occular and medico-scientific evidence. The prosecution
has effectively proved that deceased was ‘last seen’ with the appellant
and on earlier occasions too was seen being enticed by the a ppellant.
DNA evidence using the established STR technique has prove d that
appellant committed sexual intercourse with the deceased. De ceased
has been proven to be a minor using school records. Various injuries on
her body along with signs of struggle proved that such cri me was
committed in a barbaric manner. Death has been establishe d as being
homicidal and caused by throttling, and has been estimated dur ing the
time when the deceased was seen with the appellant. A slippe r have
been recovered through the appellant which has later been identified as
belonging to the deceased, giving finality to the circumstantia l chain.
The appellant has been unable to offer any alibi and his defence merely
rests on deflecting guilt on to the family of the deceased, which is without
a shred of evidence. Further, no effective challenge has be en made
against any medical or DNA reports. There can thus be no second opinion
against the guilt of the appellant and his consequential conviction.
38. The findings of kidnapping, rape, resultant death and destruction
of evidence have hence been proven beyond reasonable do ubt, as
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J. ]
evidenced by concurrent findings of the Courts below. Even this Court
on 10 th January, 2018 has confirmed the conviction of the appellant keeping
in view the fact that DNA typing carries high probative value for scientific
evidence, is often more reliable than ocular evidence. It go es without
saying that in (i) Pantangi Balarama Venkata Ganesh vs. State of
Andhra Pradesh 2 and (ii) Dharam Deo Yadav vs. State of Uttar
Pradesh 3, this Court has unequivocally held that DNA test, even if not
infallible, is nearly an accurate scientific evidence which can be a strong
foundation for the findings in a criminal case.
Sentencing :
39. The core issue that we are left with to decide is the nature of
punishment to be awarded to the appellant. The Trial Court a warded
death sentence after drawing a balance-sheet weighing ‘m itigating’
circumstances against ‘aggravating’ circumstances. It note d that lack
of criminal antecedents and a large number of depen dants were
outweighed by appellant’s mature (40-50) age, heinousness of offence,
adverse reaction of society, pre-planned manner of crime, i njuries on
body of deceased and lack of regret during trial. The High Court noted
that there was bleeding due to sexual intercourse and that there was no
possibility of reform owing to the appellant’s denial o f his crimes.
Accordingly, it held that awarding death penalty was justified.
40. The question as to why and in what circumstances should the
extreme sentence of death be awarded has been pondered upon by this
Court since many a decades. The Constitution Bench of this Court in
Bachan Singh vs. State of Punjab 4 evolved the principle of life
imprisonment as the ‘rule’ and death penalty as an ‘exception’. It further
mandated consideration of the probability of reform or rehabilitation of
the criminal. It, thus, formed the genesis of the ‘rarest of the rare’ doctrine
for awarding the sentence of death.
41. This was further developed in Machhi Singh and others vs.
State of Punjab 5 where this Court held that as part of the ‘rarest of
rare’ test, the Court should address itself as to whether ; (i) there is
something uncommon about the crime which renders se ntence of
2 (2009) 14 SCC 607
3 (2014) 5 SCC 509
4 (1980) 2 SCC 684
5 (1983) 3 SCC 470
303
imprisonment for life inadequate and calls for a death sentence; (ii) the
circumstances are such that there is no alternative but to impose de ath
sentence even after according maximum weightage to the mitig ating
circumstances which speak in favour of the offender. Further, this Court
ruled that :
“( 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 circumstances of the
‘offender’ also require to be taken into consideration along with
the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence i s an
exception. In other words death sentence 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 imprisonment for life cannot be conscien tiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances.
(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 b e
struck between the aggravating and the mitigating circumstances
before the option is exercised.”
42. There have been an umpteen number of judgments where
this Court has steadily restricted the circumstances for award of death
penalty and has increased the burden of showing special reasons before
mandating death penalty, as mandated under Section 354(3) of the Cr.P.C.
43. This exercise of drawing a balance sheet of aggravating and
mitigating circumstances whilst keeping in mind the peculiarity of facts
and circumstances of each case has nevertheless been very tedious. It
has resulted in a lack of unanimity of standard amongst different Benches
resulting in differential standards for award of capital punishment.
44. Many protagonists of abolishment of death penalty have been
passionately urging this Court to not award death in cases of circumstantial
proof claiming an inherent weakness in cases without ocular evidence.
They highlight an ever-remaining possibility of reform and rehabilitation
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and ask this Court to be cognizant of social, economic and educational
conditions of the accused.
45. Simultaneously, however, a parallel line of thought has strongly
advocated that death be imposed to maintain proportionality of sentencing
and to further the therories of deterence effect and societal retribution.
These people contend that sentencing should be society-centric instead
of being judge-centric and make use of a cost-benefit analysis to contend
that the miniscule possibility of putting to death an innocent man is more
than justified in the face of the alternative of endangerin g the life of
many more by setting a convict free after spending 14-20 y ears in
imprisonment. This possibility, they further state, is already well
safeguarded against by a ‘beyond reasonable doubt’ standard a t the
stage of conviction.
46. Ostensibly to tackle such a conundrum between awarding
death or mere 14-20 years of imprisonment, in Swamy Shraddananda
@ Murali Manohar Mishra Vs. State of Karnataka 6, a three-Judge
Bench of this Court evolved a hybrid special category of sente nce and
ruled that the Court could commute the death sentence and substitue it
with life imprisonment with the direction that the convict would not be
released from prison for the rest of his life. After acknow ledging that
“the truth of the matter is that the question of death penalty is not free
from the subjective element and the confirmation of death sentence or
its commutation by this Court depends a good deal on the person al
predilection of the Judges constituting the Bench”, this Court went on to
hold as follows:
“92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects. A sentence ma y be
excessive and unduly harsh or it may be highly
disproportionately inadequate . When an appellant comes to this
Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the present
appeal, that the case just falls short of the rarest of the rare
category and may feel somewhat reluctant in endorsing the death
sentence. But at the same time, having regard to the nature of the
crime, the Court may strongly feel that a sentence of life
imprisonment subject to remission normally works out to a term
6 (2008) 13 SCC 767
305
of 14 years would be grossly disproportionate and inadequate.
What then should the Court do? If the Court’s option is limite d
only to two punishments, one a sentence of imprisonment, for all
intents and purposes, of not more than 14 years and the other
death, the Court may feel tempted and find itself nudged into
endorsing the death penalty. Such a course would indeed b e
disastrous. A far more just, reasonable and proper course would
be to expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus between 14
years’ imprisonment and death. It needs to be emphasised th at
the Court would take recourse to the expanded option primari ly
because in the facts of the case, the sentence of 1 4 years’
imprisonment would amount to no punishment at all.
93. Further, the formalisation of a special category of sente nce,
though for an extremely few number of cases, shall have the
great advantage of having the death penalty on the statut e book
but to actually use it as little as possible, really in the rarest of rare
cases. This would only be a reassertion of the Constitution Bench
decision in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri)
580 : AIR 1980 SC 898] besides being in accord with the modern
trends in penology.
94. In the light of the discussions made above we are clear ly of
the view that there is a good and strong basis for the Co urt to
substitute a death sentence by life imprisonment or by a term in
excess of fourteen years and further to direct that the convict
must not be released from the prison for the rest of his life or for
the actual term as specified in the order, as the case may be.”
47. The special sentencing theory evolved in Swamy
Shraddananda (supra) has got the seal of approval of the Constitution
Bench of this Court in Union of India vs. Sriharan alias Murugan
and others 7, laying down as follows:
“105. We, therefore, reiterate that the power derived from the
Penal Code for any modified punishment within the punishment
provided for in the Penal Code for such specified offences ca n
only be exercised by the High Court and in the event of fur ther
appeal only by the Supreme Court and not by any other court in
7 (2016) 7 SCC 1
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
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this country. To put it differently, the power to impose a modified
punishment providing for any specific term of incarceration or till
the end of the convict’s life as an alternate to death penalty, can
be exercised only by the High Court and the Supreme Court and
not by any other inferior court.
106. Viewed in that respect, we state that the ratio lai d down in
Swamy Shraddananda (2) [ Swamy Shraddananda (2) v. State
of Karnataka , (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] that
a special category of sentence; instead of death; for a term
exceeding 14 years and put that category beyond application of
remission is well founded and we answer the said question in the
affirmative. We are, therefore, not in agreement with the opinion
expressed by this Court in Sangeet v. State of Haryana [ Sangeet
v. State of Haryana , (2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611]
that the deprival of remission power of the appropriate Government
by awarding sentences of 20 or 25 years or without any remission
as not permissible is not in consonance with the law and w e
specifically overrule the same.”
48. Regardless of the suggestive middle path this Court has, when
the occasion demanded, confirmed death sentences in many horrenduous,
barberic and superlative crimes especially which involve kidnapping, rape
and cold blooded murder of tender age children.
49. In Mukesh and another vs. State (NCT of Delhi) and others 8,
faced with an instance of gang rape and brutal murder, this Court found
that aggravating circumstances like diabolic nature o f the crime,
brazenness and coldness with which such acts were committed and the
inhuman extent to which the accused could go to satisfy their lust, would
outweigh mitigating circumstances.
50. In V asanta Sampat Dupare vs. State of Maharashtra 9, a
little child was raped and brutally murdered. The death penalty was
confirmed by this Court. Thereafter, a review petition was heard in open
court and the death penalty was reconfirmed regardless of the c onvict
having completed a bachelors preparatory programme, having kep t an
unblemished jail record and acquiring some other re formative
qualifications during the course of trial. This Court was of the view that
the extreme depravity and barberic manner in which the crime was
8 (2017) 6 SCC 1
9 (2017) 6 SCC 631
307
committed and the fact that the victim was a helpless c hild of 4 years
clearly outweighed the mitigating circumstances in that case.
51. In Khushwinder Singh vs. State of Punjab 10 , this Court
affirmed the death sentence of the accused who had killed six innocent
persons including two minors by kidnapping, drugging them with sleeping
pills and then pushing them into a canal.
52. In Manoharan Vs. Inspector of Police 11 , a three-Judge Bench
(by majority) affirmed the death sentence of the accused who along
with his co-accused was found guilty of gangraping a 10 years’ old minor
girl and committing her brutal murder along with her 7 years’ old brother
by throwing them into a canal and causing their death by drowning.
53. Equally, there are several other instances including the recent
instance in Rajindra Pralhadrao Wasnik v. State of Maharashtra in
Review Petition(Crl.) Nos. 306-307/2013 where this Court commuted
death sentence even in the case of rape and murder of tender age children
like 3-4 year olds after taking notice of the peculi ar facts and
circumstances of that case as well as the factor that the convictions
were founded upon circumstancial evidence and though DNA Test was
held but its report was withheld and not produced by the prosecution for
the reasons best known to it.
54. On a detailed examination of precedents, it appears to us that
it would be totally imprudent to lay down an absolute principle of law
that no death sentence can be awarded in a case where convi ction is
based on circumstantial evidence. Such a standard would be ripe for
abuse by seasoned criminals who always make sure to destroy direct
evidence. Further in many cases of rape and murder of children, the
victims owing to their tender age can put up no resistence. In such cases
it is extremely likely that there would be no ocular evidence. It cannot,
therefore, be said that in every such case nothwthstanding that the
prosecution has proved the case beyond reasonable doubt, the Court
must not award capital punishment for the mere reason that the offender
has not been seen committing the crime by an eye-witness. Such a
reasoning, if applied uniformally and mechanically will have devastating
effects on the society which is a dominant stakehol der in the
administration of our criminal justice system.
10 (2019) 4 SCC 415
11 (2019) SCConline SC 951
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
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55. Further, another nascent evolution in the theory of de ath
sentencing can be distilled. This Court has increasingly become cognizant
of ‘residual doubt’ in many recent cases which effectively create a higher
standard of proof over and above the ‘beyond reasonable doubt’ standard
used at the stage of conviction, as a safeguard against r outine capital
sentencing, keeping in mind the irreversibility of death.
56. In Rameshbhai Chandubhai Rathod vs. State of Gujarat ,12
this Court noted that reliance on merely ‘plausible’ evidences to prove a
circumstantial chain and award death penalty would be “ in defiance of
any reasoning which brings a case within the category o f the “rarest
of rare cases”.” Further, various discrepancies in other important links
in the circumstantial chain as well as lack of any cogent reason by the
High Court for not accepting the retraction of the confession statement
of the accused was noted. Acting upon such various gaps in the
prosecution evidence as well as in light of other mitigating circumstances,
like the possibility that there were others involved in the crime, this Court
refused to confirm the sentence of death despite upholding conviction.
57. Such imposition of a higher standard of proof for purposes of
death sentencing over and above ‘beyond reasonable doubt’ necessary
for criminal conviction is similar to the “residual doubt” metric adopted
by this Court in Ashok Debbarma vs. State of Tripura 13 wherein it
was noted that:
“in our criminal justice system, for recording guilt of the
accused, it is not necessary that the prosecution sho uld prove
the case with absolute or mathematical certainty, b ut only
beyond reasonable doubt. Criminal Courts, while examining
whether any doubt is beyond reasonable doubt, may carry in
their mind, some “residual doubt”, even though the Cou rts
are convinced of the accused persons’ guilt beyond reasonable
doubt .”
58. Ashok Debbarma (supra) drew a distinction between a
‘residual doubt’, which is any remaining or lingering doub t about the
defendant’s guilt which might remain at the sentencing sta ge despite
satisfaction of the ‘beyond a reasonable doubt’ standard during conviction,
and reasonable doubts which as defined in Krishan v. State 14 are “actual
12 (2011) 2 SCC 764
13 (2014) 4 SCC 747
14 (2003) 7 SCC 56
309
and substantive, and not merely imaginary, trivial or merely possible”.
These ‘residual doubts’ although not relevant for conviction, would tilt
towards mitigating circumstance to be taken note of whilst considering
whether the case falls under the ‘rarest of rare’ categor y.
59. This theory is also recognised in other jurisdictions like the
United States, where some state courts like the Supre me Court of
Tennessey in State vs. McKinney 15 have explained that residual doubt
of guilt is a valid non-statutory mitigating circumstance during the
sentencing stage and have allowed for new evidence during sentencing
proceedings related to defendant’s character, background history, physical
condition etc.
60. The above cited principles have been minutely observed b y
us, taking into consideration the peculiar facts and circumstances of the
case in hand. At the outset, we would highlight that the High Court while
confirming death has observed that the girl was found bleeding due to
forcible sexual intercourse — which fact, however, is not supported by
medical evidence. However, such erroneous finding has no impact on
conviction under Section 376A of the I.P.C. for a bare per usal of the
section shows that only the factum of death of the victim dur ing the
offence of rape is required, and such death need not be with any guilty
intention or be a natural consequence of the act of rape only. It is worded
broadly enough to include death by any act committed by the accused
if done contemporaneously with the crime of rape. A ny other
interpretation would defeat the object of ensuring safety of women and
would perpetuate the earlier loophole of the rapists cla iming lack of
intention to cause death to seek a reduced charge under Section 304 of
I.P.C. as noted in the Report of the Committee on Amendments to
Criminal Law, headed by Justice J.S. Verma, former Chief Justice of
India:
“22. While we believe that enhanced penalties in a substantia l
number of sexual assault cases can be adjudged on the basi s of
the law laid down in the aforesaid cases, certain situations warrant
a specific treatment. We believe that where the offence of sexual
assault, particularly ‘gang rapes’, is accompanied by such brutality
and violence that it leads to death or a Persistent Vegetative State
(or ‘PVS’ in medical terminology), punishment must be severe –
with the minimum punishment being life imprisonment. While we
15
74 S.W.3d 291 (Tenn. 2002)
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
MADHYA PRADESH [ SURYA KANT, J. ]
appreciate the argument that where such offences result in death,
the case may also be tried under Section 302 of the IPC as a
‘rarest of the rare’ case, we must acknowledge that many such
cases may actually fall within the ambit of Section 304 (Part II )
since the ‘intention to kill’ may often not be establish ed. In the
case of violence resulting in Persistent Vegetative State is
concerned, we are reminded of the moving story of A runa
Shanbagh, the young nurse who was brutally raped and lived the
rest of her life (i.e. almost 36 years) in a Persistent Vegetative
State.
23. In our opinion, such situations must be treated differently
because the concerted effort to rape and to inflict violenc e may
disclose an intention deserving an enhanced punishment. We have
therefore recommended that a specific provision, namely, Section
376 (3) should be inserted in the Indian Penal Code to deal with
the offence of “rape followed by death or resulting in a Persistent
Vegetative State”.”
61. In the present case, there are some residual doubts in our
mind. A crucial witness for constructing the last seen theory, P .W.5 is
partly inconsistent in cross-examination and quickly jumps from one
statement to the other. Two other witnesses, P.W.6 and P.W.7 had seen
the appellant feeding biscuits to the deceased one year before the incident
and their long delay in reporting the same fails to inspi re confidence.
The mother of the deceased has deposed that the wife and daughter of
the appellant came to her house and demanded the return of the money
which she had borrowed from them but failed to mention that she
suspected the appellant of commiting the crime initially. Ligature marks
on the neck evidencing throttling were noted by P.W.20 and P.W.12 and
in the postmortem report, but find no mention in the panchnama prepared
by the police. Viscera samples sent for chemical testing were spoilt and
hence remained unexamined. Although nails’ scrappings of the accused
were collected, no report has been produced to show that DNA of the
deceased was present. Another initial suspect, Baba alias Ashok Kaurav
absconded during investigation, hence, gave rise to the possibilit y of
involvment of more than one person. All these factors of course have no
impact in formation of the chain of evidence and are wholly insufficient
to create reasonable doubt to earn acquittal.
311
62. We are cognizant of the fact that use of such ‘residual doubt’
as a mitigating factor would effectively raise the standard of proof for
imposing the death sentence, the benefit of which would be availed of
not by the innocent only. However, it would be a misconception to make
a cost-benefit comparison between cost to society owing to acquittal of
one guilty versus loss of life of a perceived innocent. This is because the
alternative to death does not necessarily imply setting the convict free.
63. As noted by the United States Supreme Court in Herrera v.
Collins ,16 “ it is an unalterable fact that our judicial system, like the
human beings who administer it, is fallible .” However, death being
irrevocable, there lies a greater degree of responsibility on the Court for
an indepth scruitiny of the entire material on recor d. Still further,
qualitatively, the penalty imposed by awarding death is much different
than in incarceration, both for the convict and for the s tate. Hence, a
corresponding distinction in requisite standards of proof by taking note
of ‘residual doubt’ during sentencing would not be unwarranted.
64. We are thus of the considered view that the present case falls
short of the ‘rarest of rare’ cases where the death sentence alone
deserves to be awarded to the appellant. It appears to us in the light of
all the cumulative circumstances that the cause of j ustice will be
effectively served by invoking the concept of special sentencing theory
as evolved by this Court in Swamy Shraddananda (supra) and approved
in Sriharan case (supra).
65. For the reasons aforesaid, the appeal is allowed in part to the
extent that the death penalty as awarded by the courts below is set aside
and is substituted with the imprisonment for life with a direction that no
remission shall be granted to the appellant and he shall remain in prison
for the rest of his life.
Devika Gujral Appeals partly allowed.
16 506 U.S. 390 (1993)
RAVISHANKAR @ BABA VISHWAKARMA v. THE STATE OF
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