Supreme Court of India
ANIL @ ANTHONY ARIKSWAMY JOSEPHversusSTATE OF MAHARASHTRA
- Citation
- 2014 INSC 119
- Decided
- 20 February 2014
- Disposal
- Disposed off
- Bench
- K S RADHAKRISHNAN
Holding
The conviction stands but the death sentence is not justified; instead, a further imprisonment of thirty years without remission is imposed.
Summary
The appellant, Anil @ Anthony Arikswamy Joseph, was convicted of murdering a 10‑year‑old boy after subjecting him to pederasty, under Sections 302, 377 and 201 of the IPC and sentenced to death. The Supreme Court examined the reliability of the prosecution's circumstantial and DNA evidence, finding it trustworthy and sufficient to uphold the conviction. It then applied the "rarest of the rare" doctrine, the R‑R test, and the requirement of special reasons under Section 354(3) of the CrPC to assess the death penalty. While acknowledging the extreme depravity of the crime, the Court held that the statutory criteria for capital punishment were not met and that a further term of thirty years imprisonment without remission was an adequate punishment. Consequently, the death sentence was set aside and the appeal was disposed of.
Issues considered
- The prosecution evidence, including DNA analysis, is sufficient to sustain conviction under Sections 302, 377 and 201 IPC.
- Whether the case qualifies as "rarest of the rare" warranting death penalty under the R‑R test.
- Whether special reasons under Section 354(3) CrPC exist to justify death sentence.
- The relevance of reformation and rehabilitation considerations in sentencing.
- The admissibility and reliability of DNA evidence in criminal trials.
Legislation cited
- Code of Criminal Procedure, 1973s. 235(2), s. 354(3)
- Indian Penal Code, 1860s. 201, s. 302, s. 377
Subjects
murderpederastysodomydeath penaltyrarest of the rareDNA evidencesentencingreformationrehabilitationIPCCrPC
Judgment
[2014) 3 S.C.R. 34
A ANIL @ ANTHONY ARIKSWAMY JOSEPH
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1419-1420 of 2012)
FEBRUARY 20, 2014
B
[K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]
PENAL qoDE, 1860: SS. 302, 377 and 201 - Sodomy,
buggery and bestiality - Murder - Minor aged 10 years
C subjected to carnal intercourse and then strangulated to death
- Conviction and death sentence - On appeal, held: Evidence
of prosecution witnesses in its entirety trustworthy and reliable
- Sister of accused categorically stated that she had heard the
cries of the victim-deceased coming from the room of accused
D during mid-night and she could not sleep tiff the cries
subsided - She had no axe to grind against her own brother
and was a trustworthy witness - School bag of the deceased
and pant was recovered from a box placed beneath cot in the
house of accused which indicated that deceased was in the
E company of the accused on the fateful night - DNA test also
proved that anal smear matched with the DNA profile of smear
stains, which also matched with the control blood sample of
the accused - Consent of a passive agent was not at all a
defence, he being a minor - Prosecution clearly established
F that, after subjecting the boy to Pederasty, he was strangulated
to death - Case u/ss.302, 377 and 201 /PC clearly made out
- Accused committed the crime at the age of 35 years and a
fully matured person - There was no mitigating circumstance
favouring him - There was nothing to show that he was under
G any emotional or mental stress - The offence was committed
only to satisfy his lust, in a perverted way -. The murder was
committed in an extremely brutal, grotesque, diabolical and
dastardly manner and the accused was in a dominating
position and the victim was an innocent boy - Life of a boy,
H 34
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 35
OF MAHARASHTRA
the only son of his mother, was taken away which pricks not A
only the judicial conscience but also the conscience of the
society - Incarceration of a further period of thirty years, without
remission, in addition to the sentence already undergone, will
be· an adequate punishment in the facts and circumstances
of the case, rather than death sentence - Sentence! B
Sentencing.
MEDICAL JURISPRUDENCE: Deoxyribonucleic acid,
or DNA - Evidentiary value of - Held: DNA is a molecule that
encodes the genetic information in all living organisms - DNA
genotype can be obtained from any biological material such C
as bone, blood, semen, saliva, hair, skin, etc. - Generally,
when DNA profile of a sample found at the scene of crime
matches with DNA profile of the suspect, it can generally be
concluded that both samples have the same biological origin
- DNA profile is valid and reliable, but variance in a particular D
result depends on the quality control and quality procedure
in the laboratory - Penal Code, 1860 - Evidence.
SENTENCE/SENTENCING:
Rarest of rare case - Held: R-R Test depends upon the E
perception of the society that is "society-centric" and not
"Judge-centric': that is, whether the society will approve the
awarding of death sentence to certain types of crimes or not
- While applying that test, the court has to look into variety of
factors like society's abhorrence, extreme indignation and F
antipathy of certain types of crimes like sexual assault and
murder of minor girls, intellectually challenged minor girls,
minors suffering from physical disability, old and infirm
women, etc. - In the instant case, offence u/s. 377 was fully
proved so also the offence u/s.302 - Indian society and also G
the International society abhor pederasty, an unnatural sex,
i.e. carnal intercourse between a man and a minor boy or a
girl - When the victim is a minor, consent is not a defence,
irrespective of the views expressed at certain quarters on
consensual sex between adults. · · H
36 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Reformation and rehabilitation - Determination of
sentence - Duty of courts - Held: It is the duty of the Court to
ascertain whether the accused would be a menace to the
society and there wol(ld be no possibility of reformation and
rehabilitation and the 'state is obliged to furnish materials for
B and against the possibility of reformation and rehabilitation
of the accused.
CODE OF CRIMINAL PROCEDURE, 1973: s.235(2) rl
w s.354(3) - Death sentence - Held: When culpability
assumes the proportions of depravity, the Court has to give
C special reasons within the meaning of s.354(3) for imposition
of death sentence - Legislative policy is that when special
reasons do exist, as in the instant case, . the Court has to
discharge its constitutional obligations and honour the
legislative policy by awarding appropriate sentence, that is the
D will of the people - Sentence/Sentencing.
The prosecution case was that the accused-appellant
subjected a minor boy aged 10 years to carnal
intercourse and then strangulated him to death. The trial
E court convicted him under Sections 302, 377 and 201 IPC
and passed death sentence. The High Court dismissed
the appeal and confirmed the death sentence. The instant
appeals were filed challenging the order of the High
Court.
F Disposing of the appeals, the Court
HELD: 1. The evidence of PW2,.PW3, PWS and PW9
in its entirety was trustworthy and reliable. The
prosecution succeeded in establishing its case beyond
G reasonable doubt that the deceased was last seen in the
company of the accused and that the findings recorded
by the trial court and affirmed by the High Court called
for no interference. PW1 and PW6 were examined by the
prosecution to prove the recovery of the pant as well as
H school bag of the deceased. School bag was recovered
ANIL@ ANTHONY ARIKSWAMY JOSEPH v. STATE 37
OF MAHARASHTRA
from a box which was placed beneath the cot in the A
house of the accused. The school bag contained books
and note books which bore the name of the deceased.
The pant and the school bag along with, books contained
therein clearly indicated that the boy was in the company
of the accused on the fateful day. Consequently, the B
presence of the deceased in the room of the accused was
clearly established and the finding recorded by the trial
court as well as the High Court on that ground also called
for no interference. [Paras 11, 12) [51-G-H; 52-A-D]
2. PW4, the doctor who conducted the post-mortem C
examination of dead body of the deceased stated that all
the internal injuries corresponded to external injuries and
they were ante-mortem and were ordinarily sufficient to
cause death. PW4 also opined that there was possibility
of carnal intercourse with the deceased, though the D
cause of death was head injury. As per PW4, the DNA
report indicated that anal smear of the deceased gave ·a
mixed DNA profile which matched with semen on half
pant and blood of victim. PW4 was also shown another
report of DNA, which was in respect of the control sample E
blood of the accused and stated that DNA profile of blood
matched with DNA profile of semen found in the anus of
the deceased. Further, he also stated that injury no$:1, 3,
4 and 5 were possible by hard and blunt object while
injury no.2 was caused by sharp cutting edge and injury F
no.6 was caused by hard and rough object. Facts clearly
indicated that the fatal injuries were caused to silence him,
after satisfying lust in a barbaric manner. Attempts were
made to destroy the evidence which were also proved.
PW4 also categorically stated in respect of injury no.1 that G
it should read as anus dilated and appeared patalous,
perianal margin anal mucosa appear inflamed, though no
evidence of tear or foreign body. [Paras 13, 14] [52-E; 53-
F-H; 54-A-B]
H
38 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 3. PW5, the Assistant Chemical Analyzer, Forensic
Science Lab stated that Exh.1 was a DNA profile of the
accused and Exh.5 anal smear was of the deceased,
which gave mixed profile. She stated that she conducted
two tests, one nuclear Short Tandem Repeats (STR) and
B Y Short Tandem Repeats (YSTR). PW5, in her report,
stated that she obtained blood samples of the accused
and matched the profile obtained from that blood with the
profile of Exhs.1 and 5 and that the profiles were
matching. The evidence of PW4 and PW5 read with
C evidence of PW12, PW15 and PW16 clearly showed that
the DNA test was successfully conducted and that the
anal smear matched with the DNA profile of semen stains
which were found on the pant of the accused and were
matched with the control blood sample of the accused
as well as blood sample of the deceased. [Paras 15, 16)
0
[54-C-F; 55-A-B]
4. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms.
DNA genotype can be obtained from any biological
E material such as bone, blood, semen, saliva, hair, skin,
etc. Now, for several years, DNA profile has also shown
a tremendous impact on fcrensic investigation.
Generally, when DNA profile of a sample found at the
scene of crime matches with DNA profile of the suspect,
F it can generally be concluded that both samples have the
same biological origin. DNA profile is valid and reliable,
but variance in a particular result depends on the quality
control and quality procedure in the laboratory. PW5
stated that since 1994 she was working as Assistant
G Chemical Analyzer and has analyzed thousands of
samples including DNA test. She stated that she had
conducted two tests, one STR and second YSTR. Both
the tests were scientifically proven and the competence
of the doctor who conducted the test was also not
questioned. Consequently, the DNA test report could be
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STArE 39
OF MAHARASHTRA
safely accepted, which showed that the deceased boy A
was subjected to unnatural sex and offence under
Section 377 was clearly made out. [paras 17, 18] [55-C-F]
5. Section 377 is mainly confined to act of sodomy,
buggery and bestiality, which intends to punish a man
B
when he indulges in a carnal intercourse against the
order of nature with a man or, in the same manner, with
a woman. Sodomy is termed as Pederasty when the
intercourse is between a man and a young boy, that is,
when the passive agent is a young boy. Modi's Medical
Jurisprudence and Toxicology state that if a passive C
agent is not accustomed to sodomy, abrasions on the
skin near the anus is likely to appear and lesions will be
most marked in children while they may be almost absent
in adults, when there is no resistance to the anal coitus.
Galster's Medical Jurisprudence and Toxicology say that D
lesions like recent lacerations, bruising, inflammation of
the mucous membrane could be noticed in passive agent.
Article 377 postulates penetration by the penis into the
anus and the merest penetration suffices to establish the
offence. PW4 has clearly noticed that "Anus dilated and E
appears patalous, perional margin and mucosa appear
inflamed". DNA test also proved that anal smear matched
with the DNA profile of smear stains, which also matched
with the control sample of the accused. Consent of a
passive agent is not at all a defence, but, in the instant F
case, though a suggestion was made that the boy had
not resisted, being in the company of the accused for few
days, is of no consequence, he being a minor.
Prosecution has clearly established that, after subjecting
the boy to Pederasty, he was strangulated to death. [Para G
19] [55-G-H; 56-A-D]
6. PWS, sister of the accused categorically stated that
she had heard the cries of the boy coming from the room
of the accused during mid-night and she could not sleep
till the cries subsided. She had no axe to grind against · H
40 SUPREME COURT REPORTS (2014) 3 S.C.R.
A the accused and was a trustworthy witness. PW9 also
stated that she wanted to go to the direction iil which she
heard the cries, however, darkness deterred her and
others proceeding to the place of occurrence. Cries
heard were obviously in loud voice, which indicated- that
B the accused had indulged in such a barbaric act and
ultimately killed the boy and later threw the dead body in
the well situated near the premises of the old cemetery,
a spot which was located behind his house. The courts
below, therefore, concluded that the offence committed
c by the accused shows extreme depravity of mind and
showed extreme perversity and, therefore, called for
extreme punishment i.e. the accused be hanged by neck
till death. The case under Sections 302, 377 and 201 IPC
was clearly made out. In the instant case the crime test
0 and criminal test have been fully satisfied against the
accused. [Paras 20, 21) [56-E-H; 57-A and DJ
7. The crimes preceded by Pederasty are extremely
brutal, grotesque diabolical and revolting, which shock
the moral fiber of the society, especially when the passive
E agent is a minor. Accused is now around 42 years of age
and when he committed the crime, he was about 35 years.
There is no mitigating circumstance favouring the
accused. Age is not a factor favouring him. By the age
of 35, a person attains sufficient maturity and can
F distinguish what is good or bad, and there is nothing to
show that he was under any emotional or mental stress
and the offence was committed only to satisfy his lust,
in a perverted way. Accused is not the only son of his
parents, but the boy was a minor, totally innocent and
G defenceless, the only son of PW7. The mother, PW7 was
a house maid and the son would have looked after her
in her old age and also would have been of considerable
help to her. Her son was snatched in a barbaric
gruesome manner only to satisfy the perverted lust of the
H accused. PW7, the mother had to see the dead body of
ANIL@ ANTHONY ARIKSWAMY JOSEPH v. STATE 41
OF MAHARASHTRA
the son floating in the well. PW8, the sister of the accused A
and PW9, the neighbour, both ladies heard the cries of
the helpless boy during mid-night but both were helpless.
PW8 could not go out of her room since it was locked
from outside. PW9, a lady could not go to the house of
the accused due to pitched darkness. But, so far as the B
instant case is concerned, the offences under Section
302 and 377 were fully established and both the crime test
and the criminal test were fully satisfied against the
accused. [para 21 to 24] [57-E-F, G-H; 58-A-E]
Shankar Kisanrao Khade v. State of Maharashtra (2013) C
5 SCC 546; Bachan Singh v. State of Punjab (1980) 2 SCC
684: 1980 AIR 898; Machhi Singh v. State of Punjab (1983)
3 SCC 470 : 1983 (3) SCR 413; Suresh Kumar Koushal v.
Naz Foundation and Others (2014) 1 SCC 1 : 2014 AIR 563
- relied on. D
RR Test
8. R-R Test depends upon the perception of the
society that is "society-centric" and not "Judge-centric",
that is, whether the society will approve the awarding of E
death sentence to certain types of crimes or not. While
applying that test, the court has to look into variety of
factors like society's abhorrence, extreme indignation
and antipathy of certain types of crimes like sexual
assault and murder of minor girls, intellectually F
challenged minor girls, minors suffering from physical
disability, old arid infirm women, etc. In this case offence
under Section 377 IPC was fully proved so also the ·
offence under Section 302 IPC. Indian society and also
the International society abhor pederasty, an unnatural G
sex, i.e. carnal intercourse between a man and a minor
boy or a girl. When the victim is a minor, consent is not
a defence, irrespective of the views expressed at certain
quarters on consensual sex between adults. [Paras 26,
29] [59-H; 60-A-B; 61-B] H
42 SUPREME COURT REPORTS [2014) 3 S.C.R.
A Om Prakash v. State of Haryana (1999) 3 SCC 19 : 1999
(1) SCR 794; State of U.P. v. Sattan (2009) 4 SCC 736 : 2009
(3) SCR 643; Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498 : 2009 (9) SCR 90; Bantu
v. State of U.P. (2008) 11 sec 113 : 2008 (11) SCR 184;
B Shivaji v. State of Maharashtra (2008) 15 SCC 269 : 2008
(13) SCR 81; Mohd. Mannan v. State of Bihar (2011) 5 SCC
317 : 2011 (5) SCR 518; Rajendra Pralhadrao Wasnik v.
State of Maharashtra (2012) 4 SCC 37 : 2012 (2) SCR 225;
Haresh Mohandas Rajpu't v. State of Maharashtra (2011) 12
c SCC 56 : 2011 (14) SCR 921; Rabindra Kumar Pal alias
Dara Singh v. Republic. of India (2011) 2 SCC 490 : 2011
(1) SCR 929; Surendra Kofi v. State of U.P. and others (2011)
4 SCC 80 : '2011 (2) SCR 939; Sudam @ Rahu/ Kaniram
Jadhav v. State of Maharashtra (2011) 7 SCC 125 : 2011 (6)
0 SCR 1104; Mahesh v. State of Madhya Pradesh (1987) 3
SCC 80 : 1987 (2) SCR 710; Sevaka Perumal v. State of T.N.
(1991) 3 SCC 471 : 1991 (2) SCR 711; State of Maha. v.
Mansingh (2005) 3 SCC 131 : 2001 (4) Suppl. SCR 298;
·Bantu v. State of M.P. (2001) 9 SCC 615 : 2006 (10) Supp
SCR 662 - relied on.
E
Reformation and Rehabilitation
9. Many-a-times, while determining the sentence, the
Courts take it for granted, looking into the facts of a
F particular case, that the accused would be a menace to
the society and there is no possibility of reformation and
rehabilitation, while it is the duty of the Court to ascertain
those factors, and the State is obliged to furnish materials
for and against the possibility of reformation and
rehabilitation of the accused. Facts, which the Courts,
G deal with, in a given case, cannot be the foundation for
reaching such a conclusion, which calls for additional
materials. The criminal courts, while dealing with offences
like Section 302 IPC, after conviction, may, in appropriate
cases, are directed to call for a report to determine,
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 43
OF MAHARASHTRA
whether the accused could be reformed or rehabilitated, A
which depends upon the facts and circumstances of each
case. [para 31] [61-F-H; 62-A]
10. PW8 and PW9 heard the cries of the minor boy
during the midnight of 12,01.2008. Injury Nos.1, 3 to 5 B
were inflicted by hard and blunt object, while injury no.2
was caused by sharp cutting edge and injury no.6 was
caused by hard and rash object, over and above, the
offence under Section 377 also stood proved. The murder
was committed in an extremely brutal, grotesque, c
diabolical and dastardly manner and the accused was in
a dominating position and the victim was an innocent
boy. Accused was aged 35 years when the crime was
committed that is he was a fully matured person. Life of
a boy, the only .son of PW7, the m.other, was taken away
0
in a gruesome and barbaric manner which pricks not only
the judicial conscience but also the conscience of the
society. Legislative policy is discernible from Section
235(2) read with Section 354(3) of the Cr.P.C., that when
culpability assumes the proportions of depravity, the
Court has to give special reasons within the meaning of E
Section 354(3) for imposition of death sentence.
Legislative policy is that when special reasons do exist,
as in the instant case, the Court has to discharge its
constitutional obligations and honour the legislative
policy by awarding appropriate sentence, that is the will F
of the people. Incarceration of a further period of thirty
years, without remission, in addition to the sentence
already undergone, will be an adequate punishment in the
facts and circumstances of the case, rather than death
sentence. [Paras 33, 34] [62-E-H; 63-A-C] G
Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC
230 : 2004 (1) Suppl. SCR 918; Sahdeo v. State of U.P.
(2004) 10 SCC 682 : 2007 (7) SCR 616; Swamy
Shraddananda v. State of Karnataka (2007) 12 SCC 288; H
44 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Shankar Kisanrao Khade (supra), Haresh Mohandas Rajput
(supra), Rajesh Kumar v. State (2011) 13 SCC 706; Amit v.
State of U.P. ·(2012) 4 sec 101 : 2012 (1) SCR 1009 -
referred to.
B Case Law Reference:
2013 (5) sec 546 relied on Para 21
1980 AIR 898 relied on Para 21
1983 (3) SCR 413 relied on Para 21
c
2014 AIR 563 relied on Para 22
1999 (1) SCR 794 relied on Para 25
2009 (3) SCR 643 relied on Para 25
D 2009 (9) SCR 90 relied on Para 25
2008 (11) SCR 184 relied on Para 26
2008 (13) SCR 81 relied on Para 26
E 2011 (5) SCR 518 relied on Para 26
2012 (2) SCR 225 relied on Para 26
2011 (14) SCR 921 relied on Para 27
2011 (1) SCR 929 relied on Para 27
F
2011 (2) SCR 939 relied on Para 27
2011 (6) SCR 1104 relied on Para 27
1987 (2) SCR 710 relied on Para 28
G
1991 (2) SCR 711 relied on Para 28
2005 (3) sec 131 relied on Para 32
2001 (4) Suppl. SCR 298 relied on Para 32
H 2006 (10) Suppl. SCR 662 relied on Para 32
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 45
OF MAHARASHTRA
2004 (1) Suppl. SCR 918 Referred to Para 32 A
2007 (7) SCR 616 Referred to Para 32
(2007) 12 sec 288 Referred to Para 32
(2011) 13 sec 706 Referred to Para 32 B
2012 (1) SCR 1009 Referred to Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1419-1420 of 2012.
From the Judgment and .Order dated 18.10.2011 of the C
High Court of Bombay, Nagpur Bench at Nagpur in Criminal
Confirmation Case No. 2 of 2010 and Criminal Appeal No. 17
of 2011.
P.C. Aggarwala, Revathy Raghavan for the Appellant. D
Shankar Chillage (for Asha Goopalan Nair) for the
Respondent.
The Judgment of the Court was delivered by
E
K.S. RADHAKRISHNAN, J. 1. We are, in this case,
concerned with a gruesome murder of a minor boy aged 10
years after subjecting him to carnal intercourse and then
/
strangulating him to death.
2. The accused, Anil @ Anthony Arikswamy Joseph, was F
charge-sheeted with offences punishable under Sections 302,
377 and 201 of the Indian Penal Code (IPC). The Principal
District and Sessions Judge, Nagpur in Sessions Trial No.167
of 2008 convicted the Appellant for the offence punishable
under Section 302 IPC and sentenced him to death and also G
sentenced to pay a fine of Rs.10,000/- and in default to suffer
rigorous imprisonment for one year and for the offence
. punishable under Section 377 IPC, he was sentenced to suffer
rigorous imprisonment for 10 years and to pay a fine of
Rs.1,000/- and in default to suffer rigorous imprisonment for a H
46 SUPREME COURT REPORTS [2014] ~ S.C.R.
A period of three months. The Appellant was also con\licted for
the offence punishable under Section 201 IPC and was
sentenced to suffer rigorous imprisonment for 3 years and to
pay a fine of Rs.1,000/- and in default to suffer rigorous
imprisonment for a period of three months. Substantive
B sentences, it was ordered, would run concurrently. Since the
accused was sentenced to death, reference was sent to the
High Court for confirmation of death sentence. The accused
also filed Criminal Appeal No.17 of 2011.
C 3. The Appeal and the criminal confirmation case then
came up for hearing before a Division Bench of Nagpur Bench
of the Bombay High Court on 10.08.2011 and the Bench
noticed that the DNA profile blood sample and semen sample
were not brought before the trial court. Further, it was noticed
that PW5,' the Assistant Chemical Analyzer of Forensic Science
D Laboratory, Mumbai, had given detailed evidence in respect
of the contents of Ext.35. She stated that she had occasion to
compare DNA of blood sample of the accused with Ext.1
(semen stains on half pant) and Ext.5 (anal smear of the
deceased) and the DNA samples were matching. PW5
E submitted Ext. 38 report. Ext. 38, it was noticed, did not
disclose any comparison, as stated by PW5, which was done
in FSL at Mumbai. Cor.sidering the serious nature of the
offence and considering the fact that the whole case against
the accused was based on circumstantial evidence, the Court
F felt that it would be necessary to recall PW5 and record her
further examination-in-chief with reference to her report in
respect of the DNA profile of the accused, that too with
reference to her evidence at paragraph No.3 of her
examination-in-chief on 25.09.2009.
G
4. The Bench, therefore remitted the case to the trial court
for production of additional evidence. The operative portion of
the order reads as under :
(i) The prayer for production of copies of Judgments
H in Sessions Trial No.118 of 1997 and Sessions
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 47
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
Trial No.39 of 2002 does not survive as it is not A
pressed.
(ii) The prosecution shall move the learned Trial Court
for production of the additional evidence.
(iii) The prosecution shall recall P.W.5 and shall re- B
examine the said witness further with referenced to
the DNA profile of blood sample of the accused and
the comparison thereof with Exs.1, 4 and 5 of the
report Ex.35.
c
(iv) The learned Trial Court shall be at liberty to allow
the prosecution to produce any other documents
connected with the evidence or concerning the
collection of samples, carrying the same to F.S.L.
and analysis thereof. D
(v) The learned Trial Court shall also be at liberty to
allow the prosecution to examine any other witness
pertaining to or concerning with the collection of
samples, carrying the same to F.S.L. and analysis
thereof. E
(vi) The prosecutions shall recall P.W.10 and P.W.14
and shall examine them further with reference to
forwarding samples Exs.1, 4 and 5 of Ex.35 and ·
blood and semen samples of accused-appellant. F
(vii) Needless to state that the accused-appellant shall
be given an opportunity to cross-examine the
witnesses recalled or fresh witnesses examined
following this order.
G
(viii) It is made clear that the learned trial Court shall be
at liberty to pass any incidental order to achieve the
purpose of this order, but shall be careful to see that
the prosecution does not misuse this opportunity of
recording of additional evidence to introduce any H
48 SUPREME COURT REPORTS [2014] 3 S.C.R.
A other evidence, which is not subject matter of the
present order.
(ix) The original record and proceedings be sent back
to the learned Sessions Judge, Nagpur.
B (x) The learned Sessions Judge shall comply with this
order within 30 days from the date of receipt of this
order and shall certify the additional evidence to this
Court immediately thereof.
c Application accordingly stands disposed of."
5. The Sessions Court, after recording the additional
evidence and recalling and further examining the witnesses, as
o~ered, forwarded the same to the High Court. The appeal
was then heard by a Division Bench of the High Court on
D . 40.10.2011 along with the confirmation case and the additional
evidence recorded. The High Court, after appreciating the oral
and documentary evidence and arguments advanced by the
counsel on either side, confirmed the death sentence noticing
the brutal and grotesque manner in which the crime was
E · committed. The High Court held that the young boy of tender
age was subjected to unnatural sex for the satisfaction of the
lust of the accused which, according to the High Court, falls
under the category of rarest of the rare cases. The High Court,
therefore, dismissed the appeal and confirmed the death
F sentence, against which these appeals have been preferred.
6. Shri P.C. Aggarwala, learned senior counsel appearing
for the Appellant, submitted that the prosecution has failed to
prove the case beyond reasonable doubt and all the
G circumstances put together would lead to only one inference
that the accused is not guilty of the offences charged against
him. Learned senior counsel also submitted that the
prosecution has not succeeded in establishing the last seen
theory and the evidence adduced by PW2, PW3, PW8 and
PW9 would not establish that the victim was last seen with the
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 49
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
accused. Learned senior counsel also submitted that the A
prosecution could not establish that the articles stated to have
been recovered from the house of the accused were that of
the deceased. The evidence of PW1 and PW6, it was pointed
• out, was totally unworthy and ought to have been discarded.
Learned senior counsel also submitted that the evidence in B
respect of DNA Profile is completely manufactured to rope in
the accused and the evidence of PW10 and PW14 in that
respect cannot be believed.
7. Shri Shankar Chillage, learned counsel appearing for
the prosecution, on the other hand, submitted that the Courts C
below have correctly appreciated the evidence of PW2, PW3,
PW8 and PW9 and have come to the conclusion that the victim
was last seen in the company of the accused and all the
principles laid down by this Court to establish the last seen
theory have been completely satisfied, so far as the present D
case is concerned. Learned counsel also submitted that the
evidences of PW1 and PW6 have been correctly appreciated
by the Courts below and the prosecution has succeeded in
proving that the articles recovered from the possession of the
accused were that of the deceased. Learned counsel also E
submitted that the Courts below have correctly appreciated the
evidence of PWS, the Assistant Chemical Analyser, who
conducted the DNA test and deposed that she obtained the
blood sample of the accused and matched the profile from the
blood profile, which was sent as Ex.1 i.e. semen stain cutting F
from the half pant and submitted the Report Exh.38. Learned
counsel submitted that the ·evidence of PWS has to be
appreciated in the light of the evidence of PW12, PW13, PW15
and PW16, which would clearly indicate that the DNA profile
obtained from the anal smear of the deceased matched with G
the accused. Learned counsel submitted that the DNA profile
conclusively indicates that the accused has committed the
offence punishable under Section 377 IPC. Learned counsel
also submitted that the High Court has rightly held that the case
falls under the rarest of the rare category and correctly awarded H
50 SUPREME COURT REPORTS [2014) 3 S.C.R.
A the death sentence.
8. PW7, Shobha Vaidya, mother of the deceased, a maid
servant, was running here and there anxiously for few days to
know the whereabouts of her missing son aged 10 years. The
B boy had gone to the school on 10.1.2008 and normally he used
to return in the evening, but on that day he did not return. Since
whereabouts of the boy were not known for few days, she
lodged a complaint on 15.1.2008 at about 5.00 p.m. before
PW10, the Sub-Inspector of Police, attached to Crime Branch,
Nagpur, who was posted at Sadar Police Station. Meanwhile,
C PW2, Mary, a lady, residing near the house of the accused,
informed PW10 that the dead body of a boy aged 9-10 years
was seen floating in a well at Juna Kabrastan (old cemetery).
PW10 then proceeded to the spot and with the assistance of ·
fire brigade took the dead body from the well and sent the same
D to Mayo Hospital for conducting post-mortem examination.
After getting the post-mortem report, PW10 lodged the report
and registered the offence under Sections 377, 302 and 201
IPC.
E 9. PW14, Police Sub-Inspector attached to Sadar Police
Station, was entrusted with the investigation. By that time, the
accused was arrested on 17.1.2008 and, on his disclosure,
various articles belonging to the deceased were recovered
from the house of the accused and they were seized in the
F presence of Panchas. School bag of the deceased, which was
black in colour and had pink stripes, concealed in a box was
recovered. Bag was opened in the presence of panchas and
it was found to contain a Bal Bharati textbook, Mathematics
and English books, two note-books, all bore the name of the
G deceased. Further, a Barmuda pant, belonging to the accused
and a jeans belonging to the deceased were recovered on
17.01.2008. The accused was referred for medical examination
and the blood sample was taken on 18.01.2008. Samples of
blood semen and nail clippings were taken under Ext.17. On
the disclosure of the accused, the shirt worn by him, which was
H
ANIL@ ANTHONY ARIKSWAMY JOSEPH v. STATE 51
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
concealed near a tree under a stone, was recovered on A
22.01.2008. Seized articles were referred to the Chemical
Analysis at Nagpur. The reports of the Analyzer are at Exts.91
and 92, while the DNA reports are at Exts.35 -and 38. After
completing the investigation, the police charge-sheeted the
accused for offences punishable under Sections 302, 377 and B
201 IPC. On the side of the prosecution, fourteen witnesses
were exa.mined and the documentary evidence were brought
on record and on the side of the defence, none was examined.
10. PW2, Mary, who runs a tea stall in front of the Income
Tax Office, which is near the old cemetery, was examined by C
the prosecution to prove that the boy was seen in the company
of the accused. She stated that she knows the accused who
is residing just in front of her house. She has also deposed
that on 13.1.2008, the accused had come to her shop and
demanded Gutka, which she did not give. Later, a boy of about D
11 years was sent from the house of accused, who purchased
few items from her shop and returned to the same house. PW3,
a neighbour of the accused, is also residing near the old
cemetery. She has also deposed that she had seen the boy
with the accused on 10.01.2008 and 11.01.2008. PW8, the E·
sister of the accused, who was also residing with the accused
in his house, stated that she saw a boy aged about 10 to 12
years in the company of the accused, during the above-
mentioned period and on the fateful day, that is, in the mid-night
of 12.01.2008 and 13.01.2008, she heard the cries of the boy F
from the room of the accused. PW9, a neighbour of the
accused, also noticed one boy aged 10 years accompanying
the accused and that, on the midnight of 12.01.2008, she heard
the cries of a small boy emanated from the side of the house
of the accused. G ·
11. We have gone through. the evidence of PW2, PW3,
PW8 and PW9 in its entirety and, in our view, they are
trustworthy and reliable. In our view, the prosecution has
succeeded in establishing its case beyond reasonable doubt
H
52 SUPREME COURT REPORTS [2014] 3 S.C.R.
A that the deceased was last seen in the company of the accused
and that the findings recorded by the trial Court and affirmed
by the High Court call for no interference.
12. PW1 and PW6, Panchas of Ex. 13 and Ex.40
respectively, were examined by the prosecution to prove the
8
recovery of the pant as well as school bag of the deceased.
School bag was recovered from a box which was placed
beneath the cot in the house of the accused. Seizure
panchanams vide Exts.15 and 19 give the details of the articles
seized at the instance of the accused. The school bag
C contained books and note books which bore the name of the
deceased. The pant and the school bag along with books
contained therein would clearly indicate that the boy was in the
company of the accused on the fateful day. Consequently, the
pmsence of the deceased in the room of the accused has been
D clearly established and the finding recorded by the trial Court
as well as the High Court on that ground also calls for no
interference.
13. PW4 is the doctor who conducted the post-mortem
E examination of dead body of the deceased. The
post-mortem report (Exh.33) indicates the following
external and internal injuries on the dead body of
the deceased :
"External Injuries
F
(1) Anus dilated and appears patalous, perional
margin and mucosa appear inflamed, no evidence
of tear or foreign body.
G
(2) Position of Limbus straight.
(3) Multiple contused abrasions (6 in numbers) present
over forehead of size varying from 1.5 cm x 1.5 cm
to 2 cm x 2 cm.
H (4) Incised wound present over right lateral forehead
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 53
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
oblique of size 1.5 cm x 0.5 cm x bone deep. A
(5) Contused abrasion at right preauricular area of size
2 cm x 2 cm.
(6) Contused abrasion at right face, 1.5 cm below the
lower eye lid of size 2 cm x 2.5 cm. B
(7) Centurion present at chin of size 2 cm x 2.5 cm.
(8) Graze abrasion present at right arm, anteri medial
aspect, lower 1/3rd of size 3.5 cm x 5 cm directed C
downward and right laterally.
Internal Injuries
(1) Right frontal region of size 4 cm x 5 cm x 0.5 cm.
D
(2) Right parieto-temporal region of size 5 cm x 4 cm
x 0.5 cm.
(3) Left occipital region of size 4 cm x 4 cm x 0.5 cm.
Brain, party reddish tinged appearance to the right E
parieto-temporal region."
14. PW4 has stated that all the internal injuries correspond
to external injuries and they were ante-mortem and were
ordinarily sufficient to cause death. PW4 has also opined that F
there was possibility of carnal intercourse with the deceased,
though the cause of death was head injury. PW4 also stated
that he had seen the DNA report at Exh.35 and stated that the
report indicates that anal smear of the deceased gave a mixed
DNA profile which matches with semen on half pant and blood
of victim. PW4 was also shown another report of DNA, which G
was in respect of the control sample blood of the accused and
stated that DNA profile of blood matches with DNA profile of
· semen found in the anus of the deceased. Further, he has also
stated that injury nos.1, 3, 4 and 5 were possible by hard and
blunt object while injury no.2 was caused by sharp cutting edge H
54 SUPREME COURT REPORTS (2014] 3 S.C.R.
A and injury no.6 was caused by hard and rough object. Facts
clearly indicate that the fatal injuries were caused to silence him,
after satisfying lust in a barbaric manner. Attempts were made
to destroy the evidence which were also proved. PW4 also
categorically stated in respect of injury no.1 that it should read
B as anus dilated and appears patalous, perianal margin anal
mucosa appear inflamed, though no evidence of tear or foreign
body.
15. PW5, the Assistant Chemical Analyzer, Forensic
C Science Lab, Kalina, Mumbai stated that she had received the
parcels from the Regional Forensic Science Laboratory,
Nagpur on 24.1.2008 and she started the analysis on the same
day. She stated that Exh.1 is a DNA profile of the accused and
Exh.5 anal smear is of the deceased, which gave mixed profile.
Further, it is stated that the profile obtained from Exh.1 semen
D stains matches with the profile obtained from Exh.5 anal smear
and also Exh.4 blood stains gauze collected from the deceased.
She stated that she conducted two tests, one nuclear Short
Tandem Repeats (STR) and Y Short Tandem Repeats (YSTR).
PW5, in her report, stated that she obtained blood samples of
E the accused and matched the profile obtained from that blood
with the profile of Exhs.1 and 5 and that the profiles were
matching. PW5, as already indicated, was recalled after the
matter was remitted to the trial Court for getting further evidence
and she repeated that sh.e had analyzed the blood sample of
F the accused for DNA profiling and it matched with the sample,
which was sent as Exh.1 i.e. semen stain cutting from the half
pant. She accordingly issued a report as Exh.38.
16. PW12, the Medical Officer attached to Mayo Hospital,
G. Nagpur was examined to prove that he had received the
requisition for taking blood samples, pubic hair, nails and
semen of the accused under requisition at Exh.75, which was
handed over to the police. PW15 and PW16 were also
examined to establish the procedure followed for taking the
parcel to the Chemical Analyser for DNA test as well as for
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 55
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
collecting blood samples, etc. On going through the evidence A
of PW4.and PW5 read with evidence of PW12, PW15 and
PW16, we are of the view that the DNA test was successfully
conducted and that the anal smear matched with the DNA
profile of semen stains which were found on the pant of the
accused and were matched with the control blood sample of B
the accused as well as blood sample of the deceased.
17. Deoxyribonucleic acid, or DNA, is a molecule that
encodes the genetic information in all living organisms. DNA
genotype can be obtained from any biological material such as
bone, blood, semen, saliva, hair, skin, etc. Now, for several C
years, DNA profile has also shown a tremendous impact on
forensic investigation. Generally, when DNA profile of a sample
found at the scene of crime matches with DNA profile of the
suspect, it can generally be concluded that both samples have
the same biological origin. DNA profile is valid and reliable, but D
variance in a particular result depends on the quality control and
quality procedure in the laboratory.
18. PW5, Dr. Varsha Rathod, stated that since 1994 she
was working as Assistant Chemical Analyzer and has analyzed E
thousands of samples including DNA test. She has stated that
she had conducted two tests, one STR and second YSTR. Both
the tests are scientifically proven and the competence of the
doctor who conducted the test is also not questioned.
Consequently, the DNA test report could be safely accepted, F
which shows that the deceased boy was subjected to unnatural
sex and offence under Section 377 has been clearly made out.
19. Section 377 is mainly confined to act of sodomy,
buggery and bestiality, which intends to punish a man when he
indulges in a carnal intercourse against the order of nature with G
a man or, iii the same manner, with a woman. Sodomy is
termed as Pederasty when the intercourse is between a man
and a young boy, that is, when the passive agent is a young
boy. Modi's Medical Jurisprudence and Toxicology state that if
a passive agent is not accustomed to sodomy, abrasions on H
56 SUPREME COURT REPORTS [2014] 3 S.C.R.
A the skin near the anus is likely to appear and lesions will be
most marked in children while they may be almost absent in
adults, when there is no resistance to the anal coitus. Galster's
Medical Jurisprudence and Toxicology say that lesions like
recent lacerations, bruising, inflammation of the mucous
B membrane could be noticed in passive agent. Article 377
postulates penetration by the penis into the anus and the merest
penetration suffices to establish the offence. PW4 has clearly
noticed that "Anus dilated and appears patalous, perional
margin and mucosa appear inflamed". DNA test also proved
c that anal smear matched with the DNA profile of smear stains,
which also matched with the control sample of the accused.
Consent of a passive agent is not at all a defence, but, in the
instant case, though a suggestion was made that the boy had
not resisted, being in the company of the accused for few days,
D is of no consequence, he being a minor. Prosecution has
clearly established that, after subjecting the boy to Pederasty, ·
he was strangulated to death.
20. PW8 has categorically stated that she had heard the
cries of the boy during mid-night and she could not sleep till
E the cries subsided. PW8 is none other than the sister of the
accused. She heard the cries of the boy coming from the room
of the accused. She is a trustworthy witness and has no axe to
grind against the accused. PW9 has also stated that she
wanted to go to the direction in which she heard the cries,
F however, darkness deterred her and others proceeding to the
place of occurrence. Cries heard were obviously in loud voice,
which indicates that the accused had indulged in such a
barbaric act and ultimately killed the boy and later threw the
dead body in the well situated near the premises of the old
G cemetery, a spot which was located behind his house. The
Courts below, therefore, concluded that the offence committed
by the accused shows extreme depravity of mind and shows
extreme perversity and, therefore, calls for extreme punishment
i.e. the accused be hanged by neck till death. We are of the
H opinion that the case under Sections 302, 377 and 201 IPC
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 57
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.J
has been clearly made out. The question is only with regard to A
the sentence and whether the present case falls under the
category of rarest of rare case, warranting capital punishment.
21. In Shankar Kisanrao Khade v. State of Maharashtra
(2013) 5 SCC 546, we have dealt with the various principles B
to be applied while awarding death sentence. In that case, we
have referred to the cases wherein death penalty was awarded
by this Court for murder of minor boys and girls and cases
where death sentence had been commuted in the cases of
murder of minor boys and girls. In Shankar Kisanrao Khade C
(supra), we have also extensively referred to the principles laid
down in Bachan Singh v. State of Punjab (1980) 2 SCC 684
and Machhi Singh v. State of Punjab (1983) 3 SCC 470 and
the subsequent decisions. Applying the tests laid down in
Shankar Kisanrao Khade (supra), we are of the view that in
the instant case the crime test and criminal test have been fully D
satisfied against the accused. Still, we have to apply the RR
test and examine whether the society abhors such crimes and
whether such crimes shock the conscience of the society and
attract intense and extreme indignation of the community.
E
22. We have no doubt in our mind that such types of
crimes preceded by Pederasty are extremely brutal, grotesque
diabolical and revolting, which shock the moral fiber of the.
society, especially when the passive agent is a minor. Recently,
this Court in Suresh Kumar Koushal and Another v. Naz F
Foundation and Others (2014) 1 sec 1 has also refused to
strike down Section 377, even if such acts are indulged in by
consenting individuals. .
23. Accused is now around 42 years of age and when he
committed the crime, he was about 35 years. We have clearly G
found that there is no mitigating circumstance favouring the
accused. Age is not a factor favouring him. By the age of 35,
a person attains sufficient maturity and can distinguish what is
good or bad, and there is nothing to show that he was under
any emotional or mental stress and the offence was committed
58 SUPREME COURT REPORTS [2014] 3 S.C.R.
A only to satisfy his lust, in a perverted way. Accused is not the
only son of his parents, but the boy was a minor, totally innocent
and defenceless, the only son of PW7. The mother, PW7, is a
house maid and the son would have looked after her in her old
age and also would have been of considerable help to her. Son
B was snatched in a barbaric gruesome manner only to satisfy
the perverted lust of the accused. PW7, the mother had to see
the dead body of the son floating in the well. PW8, the sister of
the accused and PW9, the neighbour, both ladies heard the
cries of the helpless boy during mid-night but both were
c helpless. PW8 could not go out of her room since it was locked
from outside. PW9, a lady could not go to the house of the
accused due to pitched darkness.
24. In Shankar Kisanrao Khade (supra), this Court did not
confirm the death sentence, even though the post-mortem spelt
D out the act of sodomy as the prosecution had failed to
chargesheet the accused under Section 377 IPC, which was
commented upon by this Court. But, so far as the present case
is concerned, the offences under Section 302 and 377 have
been fully established and both the crime test and the criminal
E test have been fully satisfied against the accused. Now, we
have to apply the RR Test.
25. We may point out that apart from what has been stated
in Bachan Singh's case (supra) and Machhi Singh's case
F (supra) this Court in various cases like Om Prakash v. State
of f-laryana (1999) 3 SCC 19, State of U.P. v. Sattan (2009)
4 SCC 736, Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498, held that Court must state
special reasons to impose death penalty, hence, the RR Test.
G RR Test
26. R-R Test, we have already held in Shankar Kisanrao
Khade' case (supra), depends upon the perception of the
society that is "society-centric" and not "Judge-centric", that is,
H whether the society will approve the awarding of death sentence
ANIL @ANTHONY ARIKSWAMY JOSEPH v. STATE 59
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
to certain types of crimes or not. While applying that test, the A
court has to look into variety of factors like society's abhorrence,
extreme indignation and antipathy of certain types of crimes like
sexual assault and murder of minor girls, intellectually challenged
minor girls, minors suffering from physical disability, old and
infirm women, etc. R-R Test is found satisfied in several cases B
by this Court like in, Bantu v. State of U.P. (2008) 11 SCC 113,
wherein this Court affirmed the death sentence in a case where
minor girl of five years was raped and murdered. This Court
noticed that the victim was an innocent child and the murderer
was in a dominating position, which the Court found as a vital c
factor justifying the award of capital punishment. Shivaji v. State
of Maharashtra (2008) 15 sec 269, was a case where a
married person having three children, known to the family of the
deceased, ravished the life of a girl aged 9 years and
strangulated her to death, this Court affirmed the death 0
sentence awarded by the High Court. Mohd. Mannan v. State
of Bihar(2011) 5 sec 317, was a case where a minor girl aged
7 years was kidnapped, raped and murdered by an accused
aged between 42-43 years. This Court held that he would be a
menace to society and would continue to be so and could not E
be reformed and hence confirmed the death sentence.
Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012)
4 SCC 37 was a case where a 3 year old child was raped and
murdered by an accused of 31 years old. This Court noticed
the brutal manner in which the crime was committed and the
pain and agony undergone by the minor girl. This Court F
confirmed the death sentence.
27. In Haresh Mohandas Rajput v. State of Maharashtra
(2011) 12 SCC 56, this Court opined that the death sentence,
in a given case, can be awarded where the victims are innocent G
children and helpless women, especially when the crime is
committed in a most cruel and inhuman manner which is
extremely brutal, grotesque, diabolical and revolting. Reference
may also be made to the Judgments of this Court in Rabindra
Kumar Pal alias Dara Singh v. Republic of India (2011) 2 SCC H
60 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 490, Surendra Kofi v. State of U. P. and others (2011) 4 SCC
. 80 and Sudam @ Rahul Kaniram Jadhav v. State of
Maharashtra (2011) 7 SCC 125.
28. This Court in Mahesh v. State of Madhya Pradesh
B (1987) 3 SCC 80 deprecated the practice of taking a lenient
view and not imposing the appropriate punishment observing
that it will be a mockery of justice to permit the accused to
escape the extreme penalty of law when faced with such
evidence and cruel acts. This Court further held that to give the
lesser punishment for the appellants would be to render the
C justicing system of this country suspect and the common man
will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the
reformative jargon. In Bantu (supra), this Court placing reliance
on the Judgment in Sevaka Perumal v. State of T.N. (1991) 3
D SCC 471 observed as follows:
"Therefore, undtie sympathy to impose inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law, and
E society could not long endure under such serious threats.
It is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and
the manner in which it was executed or committed, etc.
Thus, it is evident that criminal law requires strict
F adherence to the rule of proportionality in providing
punishment according to the culpability of each kind of
criminal conduct keeping in mind the effect of not awarding
just punishment on the society.
G The "rarest of the rare case" comes when a convict
would be a menace and threat to the harmonious and
peaceful coexistence of the society. Where an accused
does not act on any spur of the moment provocation and
he indulged himself in a deliberately planned crime and
H meticulously executed it, the death sentence may be the
ANIL @ANTHONY ARIKSWAMY JOSEPH v. STATE 61
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
most appropriate punishment for such a ghastly crime." A
29. We may indicate, unlike Shankar Kisanrao Khade'
case (supra), in this case offence under Section 377 IPC has
been fully proved so also the offence under Section 302 IPC.
Indian society and also the International society abhor
8
pederasty, an unnatural sex, i.e. carnal intercourse between a
man and a minor boy or a girl. When the victim is a minor,
consent is not a defence, irrespective of the views expressed
at certain quarters on consensual sex between adults.
Reformation and Rehabilitation c
30. Learned counsel for the accused submitted that the
accused has no previous criminal history and would not be a
menace to the society. Further, it was also pointed out that
possibility of reformation or rehabilitation of the accused, who 0
is aged 42 years, cannot be ruled out and the State has not
discharged its responsibility of proving the impossibility of
rehabilitation.
31. In Bachan Singh (supra), this Court has categorically
stated, "the probability that the accused would not commit E
criminal acts of violence as would constitute a continuing threat
to the society", is a relevant circumstance, that must be given
great weight in the determination of sentence. This was further
expressed in Santosh Kumar Satishbhushan Bariyar (supra).
Many-a-times, while determining the sentence, the Courts take F
it for granted, looking into the facts of a particular case, that
the accused would be a menace to the society and there is
no possibility of reformation and rehabilitation, while it is the
duty of the Court to ascertain those factors, and the State is
obliged to furnish materials for and against the possibility of G
reformation and rehabilitation of the accused. Facts, which the
Courts, deal with, in a given case, cannot be the foundation
for reaching such a conclusion, which, as already stated, calls
for additional materials. We, therefore, direct that the criminal
courts, while dealing with offences like Section 302 IPC, after H
62 SUPREME COURT REPORTS [2014] 3 S.C.R.
A ·conviction, may, in appropriate cases, call for a report to
determine, whether the accused could be reformed or
rehabilitated, which depends upon the facts and circumstances
of each case.
32. Learned counsel also pointed out that the accused had
8
not kidnapped the boy, who voluntarily came and stayed with
him. Learned counsel also pointed out that the entire case rests
upon circumstantial evidence and generally in the absence of
ocular evidence, death sentence is seldom awarded.
Reference was made to few judgments of this Court in support
C of his contention, such as State of Maharashtra v. Mansingh
(2005) 3 SCC 131 and Bantu v. State of M.P. (2001) 9 SCC
615. Learned counsel also made reference to few judgments
of this Court where death sentences were commuted to life
imprisonment, such as Aloke Nath Dutta v. State of West
D Bengal (2007) 12 SCC 230, Sahdeo v. State of UP. (2004)
10 SCC 682, Swamy Shraddananda v. State of Karnataka
(2007) 12 SCC 288, Shankar Kisanrao Khade (supra), Haresh
Mohandas Rajput (supra), Rajesh Kumar v. State (2011) t3
sec 706, Amit v. State of UP. (2012) 4 sec 107, etc.
E
33. PW8 and PW9 heard the cries of the minor boy during
the midnight of 12.01.2008 and after going through their
evidence they reverberate in our ears. Injury Nos.1, 3 to 5 were
inflicted by hard and blunt object, while injury no.2 was caused
F by sharp cutting edge and injury no.6 was caused by hard and
rash object, over and above, the offence under Section 377
also stood proved. The murder was committed in an extremely
brutal, grotesque, diabolical and dastardly manner and the
accused was in a dominating position and the victim was an
G innocent boy, the only son of his mother. Accused was aged
35 years when the crime was committed that is he was a fully
matured person. Life of a boy, the only son of PW7, the mother,
was taken away in a gruesome and barbaric manner which
pricks not only the judicial conscience but also the conscience
of the society.
H
ANIL @ ANTHONY ARIKSWAMY JOSEPH v. STATE 63
OF MAHARASHTRA [K.S. RADHAKRISHNAN, J.]
34. Legislative policy is discernible from Section 235(2) A
read with Section 354(3) of the Cr.P.C., that when culpability
assumes the proportions of depravity, the Court has to give
special reasons within the meaning of Section 354(3) for
imposition of death sentence. Legislative policy is that when
special reasons do exist, as in the instant case, the Court has B
to discharge its constitutional obligations and honour the
legislative policy by awarding appropriate sentence, that is the
will of the people. We are of the view that incarceration of a
further period of thirty years, without remission, in addition to
the sentence already undergone, will be an adequate c
punishment in the facts and circumstances of the case, rather
than death sentence. Ordered accordingly.
35. The appeals are, accordingly, disposed of.
D.G. Appeals disposed of. D
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