Supreme Court of India
BHAGWANIversusTHE STATE OF MADHYA PRADESH
- Citation
- 2022 INSC 52
- Decided
- 18 January 2022
- Disposal
- Case Partly allowed
- Bench
- L NAGESWARA RAO
Holding
A death sentence may be commuted to life imprisonment where mitigating circumstances and the possibility of reformation have not been duly considered, even in a case of heinous rape and murder.
Summary
The appellant was convicted of kidnapping, raping and murdering an 11‑year‑old girl after she disappeared from a village ceremony. Circumstantial and forensic evidence, including DNA matches to the co‑accused Satish and blood‑stained clothing recovered from the appellant's cowshed, linked the appellant to the crime, while he failed to provide a credible alibi. The trial court sentenced both accused to death on the same day it delivered its judgment, without affording the appellant a separate opportunity to contest the sentence under Section 235(2) CrPC. The Supreme Court held that the death penalty was not justified because mitigating factors – the appellant's young age, lack of prior criminal record, Scheduled Tribe status, and absence of evidence disproving his potential for reformation – were not considered. Consequently, the Court commuted the death sentence to life imprisonment for a term of 30 years without remission. The conviction under the IPC and POCSO Act was upheld.
Issues considered
- The adequacy of the circumstantial and forensic evidence to sustain conviction for kidnapping, rape and murder.
- Whether the trial court complied with the requirement of a bifurcated hearing and the accused's right to make a representation against a death sentence under Section 235(2) CrPC.
- Whether mitigating circumstances and the probability of reformation warranted commutation of the death penalty to life imprisonment.
Legislation cited
- Code of Criminal Procedure, 1973s. 235(2)
- Constitution of Indias. Article 21
- Indian Penal Code, 1860s. 201, s. 302, s. 346, s. 363, s. 364, s. 366A, s. 376A, s. 376D
- Protection of Children from Sexual Offences Act, 2012s. 5(g)(m), s. 6
Subjects
kidnappingrapemurderdeath penaltylife imprisonmentfair trialSection 235 CrPCmitigating circumstancescircumstantial evidenceDNA evidencePOCSO Actsentencingreformationrehabilitation
Judgment
[2022] 8 S.C.R. 1
BHAGWANI
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal Nos. 101-102 of 2022)
JANUARY 18, 2022
[L. NAGESWARA RAO, B. R. GAVAI AND
B. V. NAGARATHNA, JJ.]
Penal Code, 1860 – ss.363, 366A, 364, 346, 376D, 376A,
302 and 201 – Protection of Children from Sexual Offences Act,
2012 – s.5(g)(m) r/w s.6 – Kidnapping, rape and murder of 11 year
old girl – Circumstantial evidence – PW-2 (father of victim) along
with his family members attended a ceremony at the house of one
‘AM’ in the evening – His 11 years old daughter went missing and
was found dead next morning – Appellant alongwith co-accused-
’S’ (since deceased) was convicted and sentenced to death – On
appeal, held: Medical evidence shows that the deceased was raped
and killed – Appellant and ‘S’ had alcohol and were together at the
house of ‘AM’ – Next day morning, they went to PW-9 and told him
that a big blunder took place – Their eyes were red, hair was
scattered and they were scared – Pursuant to the disclosure statement,
the clothes of the appellant were seized from the cowshed in his
house – Insofar as Article D, a full pant of the appellant is concerned,
according to DNA report multiple peaks were observed – DNA
profiling of the articles Q, R and S which are the vaginal slide,
rectal slide and dried blood on the hair of the deceased showed Y
(male) STR – Blood sample of ‘S’ matched with the articles found
on Q, R and S – Appellant miserably failed to prove an alibi – There
is lack of any explanation for the scratch injuries found on his
body – Appellant guilty of committing the offences as charged –
Conviction upheld, however the sentence is converted from death
to that of imprisonment for life for a period of 30 years without
remission.
Code of Criminal Procedure,1973 – s.235(2) – Constitution
of India – Article 21 – Disturbing tendency of Trial Courts
adjudicating criminal cases involving rape and murder in haste –
Held: An accused is entitled for a fair trial guaranteed under Article
1
2 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 21 – The object and purpose of s.235 (2), CrPC is that the accused
must be given an opportunity to make a representation against the
sentence to be imposed on him – A bifurcated hearing for convicting
and sentencing is necessary to provide an effective opportunity to
the accused – Adequate opportunity to produce relevant material
on the question of death sentence shall be provided to the accused
B
by the Trial Court – In the present case, it is travesty of justice as
the appellant was not given a fair opportunity to defend himself –
The judgment was dictated on 03.11.2017 and on the same day, the
Trial Court passed an order, sentencing him to death penalty –
Deprecation.
C Sentence/Sentencing – Death penalty – Mitigating
circumstances – Appellant was convicted and sentenced for
kidnapping, rape and murder of 11 year old girl – Held: Gravity of
the crime was taken into consideration while imposing death sentence
but the mitigating circumstances and the probability of reformation
D and rehabilitation of the accused wasn’t considered – Appellant
was aged 25 years on the date of commission of the offence and
belongs to a ST community, eking his livelihood by doing manual
labour – No evidence to show that there is no probability of his
rehabilitation and reformation and that the question of an alternative
option to death sentence is foreclosed – Appellant had no criminal
E antecedents – Nothing adverse reported against his conduct in jail
– Death sentence requires to be commuted to life imprisonment –
However, taking into account the barbaric and savage manner in
which the offences of rape and murder were committed on a hapless
11 year old girl, the appellant is sentenced to life imprisonment for
F a period of 30 years without remission.
Partly allowing the appeals, the Court
HELD: 1.1 The undisputed facts are that PW-2 along with
his family members attended the Chowk Barhon ceremony at
the house of ‘AM’ on the evening of 14.04.2017. His 11 years
G old daughter went missing and was found dead on the next day
morning. The Appellant and ‘S’ were arrested on the next day
and on the basis of the statements made by them, recoveries of
their clothes were made. The medical evidence shows that she
was raped and killed. A green shirt of check pattern whose two
H front black buttons were broken, which is torn near the shoulder
BHAGWANI v. THE STATE OF MADHYA PRADESH 3
and has blood spot was seized from the flowerpot on the roof of A
the cowshed of the Appellant. A red colour sando baniyan with
black stripe which is torn near shoulder with dark blood spot was
also seized along with one jeans pant of sky blue colour with lining
of 28 no. and HARW was mentioned on the right side back. There
was a dark blood spot in front of the sky-blue jeans pant. The
B
report of the State Forensic Science Laboratory, Civil Lines, Sagar
showed that all the alleles observed in the male DNA profile of
‘S’ were found to be the same as the DNA profile observed from
the prosecutrix’s vaginal and rectal slides. Same female autosomal
STR DNA profile was detected on the source of the deceased
prosecutrix, dhoti and underwear of ‘S’. Insofar as Article D which C
is a full pant of the Appellant is concerned, according to DNA
report multiple peaks were observed. The Appellant and ‘S’ were
present in the function at the house of ‘AM’ as deposed by PWs-
1, 3 and 5. PW-4 deposed that he runs a small hotel in the village
and the deceased visited his shop to purchase Kurkure at 9.00
D
p.m. 15 minutes thereafter, the Appellant visited the shop to
purchase namkeen. PW-9 stated that the Appellant and ‘S’ visited
his house on 15.04.2017. Their eyes were red, hair was scattered
and they were scared. They informed him that they have committed
a big scandal. At that time, the mother of the Appellant came, and
‘S’ and the Appellant went away. Half an hour later, there was an E
uproar in the village when the body of the deceased was found.
[Paras 8 and 9][12-E-H; 13-A-E]
1.2 During the course of examination of ‘S’ under Section
313 CrPC, he admitted that he was present at the house of ‘AM’
on 14.04.2017 and that he visited PW-9 on the morning of F
15.04.2017. The Appellant also admitted his presence at ‘AM’s’
house on 14.04.2017 and at the house of PW-9 on 15.04.2017 in
the morning. He further stated in his examination under Section
313 CrPC that his eyes were red, hair was scattered and he and
‘S’ demanded liquor from PW-9. It is relevant to note that the
Appellant also stated that he had gone to Sudgaon along with ‘S’ G
for work at 9.00 a.m. on 14.04.2017. While returning, he had liquor
along with ‘S’. He visited ‘AM’s’ house along with ‘S’ at 7.00
p.m. They were asked to leave as they were in a drunken
condition. The Appellant, thereafter, went to the shop of Chain
H
4 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Singh from where his mother took him home. He slept in the
house of his neighbour. Clothes worn by the Appellant were seized
from a flowerpot on the roof of the cowshed belonging to him
pursuant to the disclosure statement. FSL report pertaining to
Article B which is a full pant of Appellant on which there was a
blood stain near the zip showed multiple peaks. The Appellant
B
and ‘S’ had alcohol and were together at the house of ‘AM’. As
they were creating nuisance, they were chased away. The next
day morning, they went to PW-9 and told him that a big blunder
took place. DNA profiling of the articles Q, R and S which are the
vaginal slide, rectal slide and dried blood on the hair of the
C deceased showed Y (male) STR. Blood sample of ‘S’ matched
with the articles found on Q, R and S. The Appellant miserably
failed to prove an alibi. Importantly, there is lack of any explanation
for the scratch injuries found on the body of the Appellant. This
Court is in agreement with the concurrent findings that the
Appellant is guilty of committing the offences as charged and
D
there is no fault with the conviction of the appellant. [Paras 10
and 12][13-D-F; 14-B-E]
2. It is travesty of justice as the Appellant was not given a
fair opportunity to defend himself. This is a classic case indicating
the disturbing tendency of Trial Courts adjudicating criminal cases
E involving rape and murder in haste. An accused is entitled for a
fair trial which is guaranteed under Article 21 of the Constitution
of India. In respect of the order of conviction and sentence being
passed on the same day, the object and purpose of Section 235
(2) CrPC is that the accused must be given an opportunity to
F make a representation against the sentence to be imposed on
him. A bifurcated hearing for convicting and sentencing is
necessary to provide an effective opportunity to the accused.
Adequate opportunity to produce relevant material on the
question of death sentence shall be provided to the accused by
the Trial Court. The judgment was dictated on 03.11.2017. On
G the same day, the Trial Court passed an order, sentencing the
Appellant and ‘S’ to death penalty. [Paras 13 and 14][14-E-G; 15-
C]
3. A perusal of the judgments of the Trial Court and the
High Court would disclose that the gravity of the crime was taken
H
BHAGWANI v. THE STATE OF MADHYA PRADESH 5
into consideration while imposing death sentence. The mitigating A
circumstances and the probability of reformation and rehabilitation
of the accused have not been considered. The Appellant was aged
25 years on the date of commission of the offence and belongs to
a Scheduled Tribes community, eking his livelihood by doing
manual labour. No evidence has been placed by the prosecution
B
on record to show that there is no probability of rehabilitation
and reformation of the Appellant and the question of an alternative
option to death sentence is foreclosed. The Appellant had no
criminal antecedents before the commission of crime for which
he has been convicted. There is nothing adverse that has been
reported against his conduct in jail. Therefore, the death sentence C
requires to be commuted to life imprisonment. However, taking
into account the barbaric and savage manner in which the offences
of rape and murder were committed by the Appellant on a hapless
11 year old girl, the Appellant is sentenced to life imprisonment
for a period of 30 years during which he shall not be granted D
remission. The conviction of the Appellant under Sections 363,
366A, 364, 346, 376D, 376A, 302, 201 of IPC and Section 5(g)
(m) read with Section 6 of the POCSO Act is upheld. [Paras 17-
19][16-H; 17-A; 18-A-E]
Dalbir Kaur v. State of Punjab (1976) 4 SCC 158 : E
[1977] 1 SCR 280; Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra, (2009) 6 SCC 498 :
[2009] 9 SCR 90; Rajendra Pralhadrao Wasnik v. State
of Maharashtra, (2019) 12 SCC 460 : [2018] 14 SCR
585; Mofil Khan and Another v. The State of Jharkhand
RP (Crl.) No.641 of 2015 in Crl. A. 1795 of 2009; F
(Rajendra) Pralhadrao Wasnik v. State of Maharashtra
(2019) 12 SCC 460 : [2018] 14 SCR 585 – relied on.
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88; Bachan Singh v.
G
State of Punjab (1980) 2 SCC 684; Machhi Singh v.
State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413;
Mohd. Mannan @ Abdul Mannan v. State of Bihar
(2019) 16 SCC 584 : [2019] 8 SCR 266 – referred to.
H
6 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Case Law Reference
[2019] 8 SCR 266 referred to Para 4
[1985] 1 SCR 88 referred to Para 7
[1977] 1 SCR 280 relied on Para 13
B [2009] 9 SCR 90 relied on Para 13
[2018] 14 SCR 585 relied on Para 15
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 101-102 of 2022.
C From the Judgment and Order dated 09.05.2018 of the High Court
of Madhya Pradesh, Jabalpur Bench in Criminal Appeal No.5446 of
2017 and Criminal Confirmation Case No. 5 of 2017.
Shri Singh, Amartya Kanjilal, Ms. Sayali Kadu, Ms. Adeeba
Mujahid, Advs. for the Appellant.
D Ms. Ankita Chaudhary, Dy. AG, Gopal Jha, Ms. Rashmi Singhania,
Ms. Himanshi Shakya, Kumar Prashant, Nishant Verma, Shreyash
Bhardwaj, Advs. for the Respondent.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
E
Leave granted.
1. These Appeals are preferred against the judgment of the High
Court of Madhya Pradesh by which the conviction and sentence of the
appellant by the Trial Court under Sections 363, 366A, 364, 346, 376D,
376A, 302, 201 of Indian Penal Code, 1860 (“IPC”) and Section 5(g)(m)
F
read with Section 6 of The Protection of Children from Sexual Offences
Act, 2012 (for short “the POCSO Act”) were upheld.
2. At 9.00 p.m. on 14.04.2017, Brijlal Yadav (PW-2) along with
his wife Kalawati (PW-1), two sons and his daughter went to the house
of Anil Maravi to attend a function of Chowk Barhon (naming ceremony).
G While they were returning back at around 11.00 p.m., they realized that
their daughter was missing. They started searching and at about 5:00
AM on the next day, PW-1 found her daughter lying near a hand-pump.
Her daughter was in an unconscious condition. PW-1 started howling at
which PW-2 and others reached the place and called the police. The
H District Scientific Officer, Scene of Crime Unit, Dindori, Madhya Pradesh
BHAGWANI v. THE STATE OF MADHYA PRADESH 7
[L. NAGESWARA RAO, J.]
conducted inspection of the place of incident. According to the inspection A
report, the body of the deceased was lying in a supine position and on
the back side of the head of the deceased, there were multiple small
pieces of dry grass and Gokhru (Caltrop) in the hair. There was a dry
bark of drumstick tree also in the hair. Both eyes were closed. Froth
from the nose was observed, small internal injuries were visible and on
B
the left side and right side of the chin, there were small marks of injury.
Small injury marks were found in front and left side to the neck. Blood
was present in the genitalia. On the sole of the right leg, there was
blood. Blood was also present above the ankle of the right leg. There
were scratch marks on the left side of the chest and another scratch
type of mark below the chest. Blood spots were found on both thighs up C
to genitalia. Blood was found on the back of the thigh and near anus.
Small injury marks were present on the entire back and waist. Directions
were given to the investigating officer to send the body for post-mortem
and to collect, preserve and pack the visible objects found at the place of
occurrence. Further direction was given to seize the clothes worn by the
D
prosecutrix and get them examined. Post-mortem was conducted at 4.00
p.m. on 15.04.2017 by PW-6 Dr. Sajjan Kumar Uikey who found the
following injuries: -
“ Rigor mortis present in both lower limb and partially passed
in both upper limb. Eye-closed, mouth-closed, fiest-half open,
cornea congested, pupil dilated, face- cyanosed, lip-cyanosed, E
finger and· hand- cyanosed. Blood mixed froth present over
the both nostril. Blood mixed saliva both angle on mouth up
to lower margin of mandible. Four contusion mark over left
side of neck, medial aspect of neck. Three contusion mark on
left side of neck middle third size of contusion between 1 ½ F
cmx 1 cm. 1 cm x 1 cm. contusion over both cheek, 1 cm x 1 ‘
cm. infraorbital left side. 11/2 cm contusion on the left side of
xiphisternum. One intrascapular contusion 1 Y, cm two 1/2
cm x v, cm contusion over the left buttock. Clotted blood found
over the pink colour aspect dry clotted blood present over
the perinea! area lower middle third of both thigh all around G
anal area. Blood present in the vaginal opening three 3 cm.
anterior to posterior and full thickness of muscle and skin.
Dry clotted blood present over the anal opening and inner
aspect of anus. Opening is dilated 2 fingers easily admitted.
All injuries are antemortem in nature.” H
8 SUPREME COURT REPORTS [2022] 8 S.C.R.
A The cause of the death was given as asphyxia, neurogenic shock
due to neck pressing, severe injuries and bleeding in vagina and anal
opening by committing rape forcefully.
3. On suspicion, the Appellant and Satish s/o Jehar Singh
Dhoomketi were arrested on 16.04.2017. The statement of Satish was
B recorded pursuant to which the blanket and shawl of the deceased and
clothes worn by him were seized. Similarly, the clothes worn by the
Appellant which were concealed in his cowshed were seized pursuant
to the statement made by him. On completion of investigation, the final
report was filed on 27.06.2017. Charges were framed against Satish
and the Appellant under Sections 363, 366-A, 364, 346, 376D, 376A or in
C the alternative under Sections 302, 201 IPC and Section 5(g)(m) read
with Section 6 of the POCSO Act. 12 witnesses were examined by the
prosecution. The Sessions Judge, Dindori convicted the Appellant and
Satish for the offences charged and sentenced them to death. The High
Court answered the reference against the Appellant and Satish by
D upholding the conviction and sentence imposed by the Trial Court.
Aggrieved thereby, the Appellant and Satish approached this Court.
During the pendency of the Appeals, Satish died and therefore, his Appeal
has abated.
4. As there is no direct evidence regarding the kidnapping, rape
E and murder of a girl aged 11 years, the case hinges on circumstantial
evidence. Keeping in mind the well settled principles settled by this Court
in Sharad Birdhichand Sarda v. State of Maharashtra1, the Trial
Court scrutinized the evidence on record. Reference was made to the
testimony of PW-1 who stated that the Appellant and Satish were present
at the Chowk Barhon function at Anil Maravi’s house and made
F themselves scarce after the recovery of the dead body. Reference was
also made to the oral testimony of PW-4, Chain Singh who runs a small
hotel in the village. He deposed that the victim girl had come to his shop
at 9.00 pm on 14.04.2017 to purchase Kurkure and she had a blanket
and shawl with her. Fifteen minutes thereafter, the Appellant also visited
G the shop for purchasing namkeen. The Trial Court considered the
disclosure statements made by the accused and the recoveries of shawl
and blanket of the victim girl and the clothes of Satish and the Appellant.
The seizure of a blanket and button from the place of incident was proved
to be from the shirt of Satish. The evidence of Dr. Vijay Paigwar (PW-
1
H (1984) 4 SCC 116
BHAGWANI v. THE STATE OF MADHYA PRADESH 9
[L. NAGESWARA RAO, J.]
11) who examined the injuries of Satish and the Appellant was considered A
by the trial Court. The Appellant had a scratch mark of size 1 inch on the
upper portion of the left shoulder, scratch mark of size 0.5 inch on left
side below shoulder, scratch mark of size 0.5 inch on the lower portion
of the back of the body, scratch marks of 2 inches on the right arm and
abrasion mark of 1 cm sized on the cheek and 4 inches sized abrasion on
B
the ribs. The answers given by the Appellant and Satish during their
examination under Section 313 of the Code of Criminal Procedure, 1973
(“the CrPC”) were also examined by the Trial Court. The admission of
the Appellant that he had alcohol with Satish on the evening of the day
of incident and that both of them visited Jaipal Singh (PW-9) and requested
for alcohol on the next day morning was taken note of by the trial Court. C
The version of the Appellant that he was taken home by his mother on
the night of 14.04.2017 and as she was abusing him, the Appellant went
to the house of his neighbour, Deepa was not accepted by the Trial
Court as neither his mother nor Deepa were examined. Having been
convinced that the circumstances were consistent with the hypothesis
D
of the Appellant, the Trial Court convicted them for the offences charged.
After hearing the Appellant and Satish, the Trial Court sentenced them
to death as they were found guilty of committing heinous crimes of rape
and murder. While considering the reference, the High Court re-
appreciated the evidence on record and upheld the conviction and
sentence imposed by the Trial Court. E
5. Mr. Shri Singh, learned counsel appearing for the Appellant
submitted that none of the discoveries and the recoveries implicate the
Appellant. He argued that the disclosure statement of Satish was recorded
at 1340 hrs. on 16.04.2017 and the disclosure statement of the Appellant
was recorded one and half hours later. Both the statements were recorded F
by PW-10. He submitted that the Courts below have committed an error
in relying upon the disclosure statement of the Appellant. He further
stated that none of the articles that have been recovered from the alleged
place of offence have any connection with the Appellant. According to
him, the packet of Kurkure which was purchased was not identified in
Court by PW-4 from whose shop it was purchased. The black button G
seized from the spot of offence is from the shirt of Satish with which the
Appellant had no connection. Commenting on the seizure of the shirt,
red sando baniyan and jeans pant, Mr. Shri Singh submitted that
serological testing was not done to prove that the blood found on the
clothes was human blood. He argued that the injuries of the Appellant H
10 SUPREME COURT REPORTS [2022] 8 S.C.R.
A cannot be taken as a circumstance as he is a labourer doing physical
work. He pointed out that the column of “injury marks” in the arrest
memo was found to be blank. The learned counsel for the Appellant
submitted that the evidence of the accused last seen together with the
victim has not been properly appreciated by the Courts below. He referred
to the evidence of Bhagat Singh (PW-5) and submitted that the Appellant
B was apprehended from his house, and it was only Satish who was
absconding. He argued that the statements made by the Appellant in his
examination under Section 313 CrPC were not appreciated properly.
The learned counsel for the Appellant pointed out that the admissions
made by him in the statement under Section 313 CrPC cannot be treated
C as substantive evidence. According to learned counsel for the Appellant,
the chain of circumstances is incomplete and is not consistent with only
one hypothesis, proving the guilt of the Appellant. On the sentence of
death, the learned counsel for the Appellant submitted that there is violation
of the right to fair trial which is guaranteed under Article 21 of the
Constitution of India as effective legal assistance was not afforded in
D the instant case. Sufficient time was not given to the amicus curiae
appointed by the Court to cross-examine witnesses and no opportunity
was given to the Appellant to submit relevant material before sentencing.
Mitigating circumstances have not been taken into consideration. The
probability of reformation of the Appellant and the sentence of life
E imprisonment being unquestionably foreclosed were not taken into account
by the Courts below. The learned counsel for the Appellant further argued
that the Appellant could not have been convicted under Section 376A
IPC. After the amendment in 2013, gang rape was taken out of the
ambit of Section 376 (1) and (2) IPC. The prosecution did not produce
any evidence to establish any common intention between the Appellant
F and Satish to commit an offence under Section 376D IPC. Sentence for
commission of gang rape is imprisonment for life. Therefore, the imposition
of death sentence is unsustainable.
6. Ms. Ankita Chaudhary, learned Deputy Advocate General for
the State of Madhya Pradesh defended the judgments of the Trial Court
G and the High Court by submitting that there is no break in the chain of
events/ circumstances. According to her, the prosecution proved that
there was a function of Chowk Barhon at the house of Anil Maravi, the
victim was seen at the shop of Chain Singh (PW-4) and after a short
while, the Appellant visited the shop and PW-5 witnessed the deceased
going to the house of Satish which was corroborated by Satish in his
H statement under Section 313 CrPC in which he admitted that the deceased
BHAGWANI v. THE STATE OF MADHYA PRADESH 11
[L. NAGESWARA RAO, J.]
came to his house to keep her black shawl. The deceased disappeared A
thereafter, and her body was found the next day morning. The medical
evidence disclosed brutal rape and murder of the deceased. Scientific
evidence clearly showed that Satish committed the offence of rape.
Satish and the Appellant were seen together on the evening of 14.04.2017
and they had also visited PW-9 on the next day morning. They were
disheveled and requested PW-9 for liquor. Satish went missing thereafter B
and was apprehended in the afternoon. Pursuant to the disclosure
statement, the clothes of the Appellant were seized from the cowshed in
the house of the Appellant. The learned counsel for the State referred to
the injuries on the body of the Appellant which were not explained by
him. She also relied upon the DNA report prepared by Forensic Science C
Laboratory (FSL), Sagar. Specific reference was made to Article D
which was a full pant belonging to the Appellant on which there was a
blood stain near the zip area. Ms. Chaudhary argued that multiple peaks
were observed while examining Article D which denotes that there is
more than one DNA trait on Article D. The learned counsel for the
State further submitted that the Appellant could not prove his plea of D
alibi. The Appellant failed to examine his mother and Deepa in whose
house he had slept on the night of 14.04.2017. Referring to the answers
given to questions posed to the Appellant during his examination under
Section 313 CrPC, the learned counsel for the State relied upon the law
laid down by this Court and submitted that mere denial would provide E
additional link if the circumstances are proved. It was argued by the
learned counsel for the State that though the statement under Section
313 CrPC cannot be made the basis for conviction, it can be used as
evidence against the accused to the extent it supports the case of the
prosecution. A helpless girl at a tender age was mauled to death after
being raped and the Appellant deserves no lenience. The contention of F
the State is that there is no error committed by the Trial Court in imposing
the sentence of death on the Appellant for the heinous offences committed
by him.
7. This Court in Dalbir Kaur v. State of Punjab2 summarized the
principles governing interference in a criminal appeal by special leave as G
follows: -
“(1) that this Court would not interfere with the concurrent
finding of fact based on pure appreciation of evidence even
if it were to take a different view on the evidence;
2
(1976) 4 SCC 158 H
12 SUPREME COURT REPORTS [2022] 8 S.C.R.
A (2) that the Court will not normally enter into a reappraisement
or review of the evidence, unless the assessment of the High
Court is vitiated by an error of law or procedure or is based
on error of record, misreading of evidence or is inconsistent
with the evidence, for instance, where the ocular evidence is
totally inconsistent with the medical evidence and so on;
B
(3) that the Court would not enter into credibility of the
evidence with a view to substitute its own opinion for that of
the High Court;
(4) that the Court would interfere where the High Court has
C arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has acted in
violation of a mandatory provision of law or procedure
resulting in serious prejudice or injustice to the accused;
(5) this Court might also interfere where on the proved facts
D wrong inferences of law have been drawn or where the
conclusions of the High Court are manifestly perverse and
based on no evidence.”
This Court exhorted the counsel for the parties to confine their
arguments within the four corners of the above principles to save time,
E energy and expertise.
8. The undisputed facts are that PW-2 along with his family
members attended the Chowk Barhon ceremony at the house of Anil
Maravi on the evening of 14.04.2017. His 11 years old daughter went
missing and was found dead on the next day morning. The Appellant
F and Satish were arrested on the next day and on the basis of the
statements made by them, recoveries of their clothes were made. The
medical evidence shows that she was raped and killed. A green shirt of
check pattern whose two front black buttons were broken, which is torn
near the shoulder and has blood spot was seized from the flowerpot on
the roof of the cowshed of the Appellant. A red colour sando baniyan
G with black stripe which is torn near shoulder with dark blood spot was
also seized along with one jeans pant of sky blue colour with lining of 28
no. and HARW was mentioned on the right side back. There was a dark
blood spot in front of the sky-blue jeans pant. The report of the State
Forensic Science Laboratory, Civil Lines, Sagar showed that all the alleles
observed in the male DNA profile of Satish were found to be the same
H
BHAGWANI v. THE STATE OF MADHYA PRADESH 13
[L. NAGESWARA RAO, J.]
as the DNA profile observed from the prosecutrix’s vaginal and rectal A
slides. Same female autosomal STR DNA profile was detected on the
source of the deceased prosecutrix, dhoti and underwear of Satish. Insofar
as Article D which is a full pant of the Appellant is concerned, according
to DNA report multiple peaks were observed.
9. The Appellant and Satish were present in the function at the B
house of Anil Maravi as deposed by PWs-1, 3 and 5. PW-4 deposed that
he runs a small hotel in the village and the deceased visited his shop to
purchase Kurkure at 9.00 p.m. 15 minutes thereafter, the Appellant visited
the shop to purchase namkeen. Jaipal (PW-9) stated that the Appellant
and Satish visited his house on 15.04.2017. Their eyes were red, hair
was scattered and they were scared. They informed him that they have C
committed a big scandal. At that time, Munni Bai- the mother of the
Appellant came, and Satish and the Appellant went away. Half an hour
later, there was an uproar in the village when the body of the deceased
was found.
10. During the course of examination of Satish under Section 313 D
CrPC, he admitted that he was present at the house of Anil Maravi on
14.04.2017 and that he visited PW-9 on the morning of 15.04.2017. The
Appellant also admitted his presence at Anil Maravi’s house on 14.04.2017
and at the house of PW-9 on 15.04.2017 in the morning. He further
stated in his examination under Section 313 CrPC that his eyes were E
red, hair was scattered and he and Satish demanded liquor from PW-9.
It is relevant to note that the Appellant also stated that he had gone to
Sudgaon along with Satish for work at 9.00 a.m. on 14.04.2017. While
returning, he had liquor along with Satish. He visited Anil Maravi’s house
along with Satish at 7.00 p.m. They were asked to leave as they were in
a drunken condition. The Appellant, thereafter, went to the shop of Chain F
Singh from where his mother took him home. He slept in the house of
his neighbour, Deepa.
11. The Appellant was examined by Dr. Vijay Pegwar (PW-11)
on 17.04.2017 and the following injuries were found on his body:
G
i) Scratch mark of 1 inch on the upper side of the
shoulder,
ii) 0.5 inch scratch mark on the lower left shoulder,
iii) 0.5 inch scratch mark on the lower portion on the back
of the body, H
14 SUPREME COURT REPORTS [2022] 8 S.C.R.
A iv) 2 inches scratch marks on the right arm,
v) Abrasion mark of 1 cm on cheek, and
vi) 4 inches sized abrasion injury on the right lower lateral
rib. Scratch marks that were found on the body of Satish
B were also examined by Dr. Vijay Pegwar.
12. Clothes worn by the Appellant were seized from a flowerpot
on the roof of the cowshed belonging to him pursuant to the disclosure
statement. FSL report pertaining to Article B which is a full pant of
Appellant on which there was a blood stain near the zip showed multiple
C peaks. The Appellant and Satish had alcohol and were together at the
house of Anil Maravi. As they were creating nuisance, they were chased
away. The next day morning, they went to PW-9 and told him that a big
blunder took place. DNA profiling of the articles Q, R and S which are
the vaginal slide, rectal slide and dried blood on the hair of the deceased
D showed Y (male) STR. Blood sample of Satish matched with the articles
found on Q, R and S. The Appellant miserably failed to prove an alibi.
Importantly, there is lack of any explanation for the scratch injuries found
on the body of the Appellant. We are in agreement with the concurrent
findings that the Appellant is guilty of committing the offences as charged
and we find no fault with the conviction of the appellant.
E
13. It is travesty of justice as the Appellant was not given a fair
opportunity to defend himself. This is a classic case indicating the disturbing
tendency of Trial Courts adjudicating criminal cases involving rape and
murder in haste. It is trite law that an accused is entitled for a fair trial
which is guaranteed under Article 21 of the Constitution of India. In
F respect of the order of conviction and sentence being passed on the
same day, the object and purpose of Section 235 (2) CrPC is that the
accused must be given an opportunity to make a representation against
the sentence to be imposed on him. A bifurcated hearing for convicting
and sentencing is necessary to provide an effective opportunity to the
G accused3. Adequate opportunity to produce relevant material on the
question of death sentence shall be provided to the accused by the Trial
Court4.
3
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498
4
Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460
H
BHAGWANI v. THE STATE OF MADHYA PRADESH 15
[L. NAGESWARA RAO, J.]
14. Mr. K.G. Sahu, Advocate appointed through Legal Aid appeared A
for the Appellant before the Sessions Court on 04.07.2017 when the
matter was adjourned to 25.07.2017 for framing of charges. On
25.07.2017, Mr. M.K. Kannaujiya, Advocate filed his appearance memo.
On the same date, the Trial Court recorded that arguments were heard
on the charges. Charges were framed and the schedule for trial was
B
given. On 02.08.2017, 9 witnesses were scheduled to be examined and
on 03.08.2017, the remaining witnesses would be examined. On
02.08.2017, Mr. Kannaujiya, Advocate represented to the Court that he
was not willing to defend the accused. Mr. Satyendra Yadav, Advocate
was appointed to represent the accused. On the same day, PWs-1,2 and
3 were examined and on the next day, PWs-4 and 5 were also examined. C
Final arguments were heard on 26.10.2017 and the judgment was dictated
on 03.11.2017. On the same day, the Trial Court passed an order,
sentencing the Appellant and Satish to death penalty.
15. After considering the judgements of this Court in Bachan
Singh v. State of Punjab5, Machhi Singh v. State of Punjab6, this D
Court in Mohd. Mannan @Abdul Mannan v. State of Bihar7 observed
as follows: -
“The proposition of law which emerges from the judgments
referred to above is that death sentence cannot be imposed
except in the rarest of rare cases, for which special reasons
E
have to be recorded, as mandated in Section 354(3) of the
Criminal Procedure Code. In deciding whether a case falls
within the category of the rarest of rare, the brutality, and/or
the gruesome and/or heinous nature of the crime is not the
sole criterion. It is not just the crime which the Court is to
take into consideration, but also the criminal, the state of his F
mind, his socio-economic background, etc. Awarding death
sentence is an exception, and life imprisonment is the rule.”
16. In Mofil Khan and Another v. The State of Jharkhand8,
this Court observed as follows: -
“8. One of the mitigating circumstances is the probability of G
the accused being reformed and rehabilitated. The State is
5
(1980) 2 SCC 684
6
(1983) 3 SCC 470
7
(2019) 16 SCC 584
8
RP (Crl.) No.641 of 2015 in Crl. A. 1795 of 2009 H
16 SUPREME COURT REPORTS [2022] 8 S.C.R.
A under a duty to procure evidence to establish that there is no
possibility of reformation and rehabilitation of the accused.
Death sentence ought not to be imposed, save in the rarest of
the rare cases when the alternative option of a lesser
punishment is unquestionably foreclosed (See: Bachan Singh
v. State of Punjab 9 ). To satisfy that the sentencing aim of
B
reformation is unachievable, rendering life imprisonment
completely futile, the Court will have to highlight clear
evidence as to why the convict is not fit for any kind of
reformatory and rehabilitation scheme. This analysis can only
be done with rigour when the Court focuses on the
C circumstances relating to the criminal, along with other
circumstances (See: Santosh Kumar Satishbhushan Bariyar
v. State of Maharashtra 10). In Rajendra Pralhadrao Wasnik
v. State of Maharashtra 11, 9 (1980) 2 SCC 684 10 (2009) 6
SCC 498 11 (2019) 12 SCC 460 11 | P a g e this Court dealt
D with the review of a judgment of this Court confirming death
sentence and observed as under:
45. The law laid down by various decisions of this Court
clearly and unequivocally mandates that the probability (not
possibility or improbability or impossibility) that a convict can
be reformed and rehabilitated in society must be seriously
E
and earnestly considered by the Courts before awarding the
death sentence. This is one of the mandates of the “special
reasons” requirement of Section 354(3) CrPC and ought not
to be taken lightly since it involves snuffing out the life of a
person. To effectuate this mandate, it is the obligation on the
F prosecution to prove to the Court, through evidence, that the
probability is that the convict cannot be reformed or
rehabilitated. This can be achieved by bringing on record,
inter alia, material about his conduct in jail, his conduct
outside jail if he has been on bail for some time, medical
G evidence about his mental make-up, contact with his family
and so on. Similarly, the convict can produce evidence on
these issues as well.”
17. A perusal of the judgments of the Trial Court and the High
Court would disclose that the gravity of the crime was taken into
consideration while imposing death sentence. The mitigating
H
BHAGWANI v. THE STATE OF MADHYA PRADESH 17
[L. NAGESWARA RAO, J.]
circumstances and the probability of reformation and rehabilitation of A
the accused have not been considered. It is relevant to refer to the
following observations of this Court in Rajendra Pralhadrao Wasnik
v. State of Maharashtra9:
“47. Consideration of the reformation, rehabilitation and
reintegration of the convict into society cannot be B
overemphasised. Until Bachan Singh [Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] , the
emphasis given by the Courts was primarily on the nature of
the crime, its brutality and severity. Bachan Singh [Bachan
Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri)
580] placed the sentencing process into perspective and C
introduced the necessity of considering the reformation or
rehabilitation of the convict. Despite the view expressed by
the Constitution Bench, there have been several instances,
some of which have been pointed out in Bariyar [Santosh
Kumar Satishbhushan Bariyar v. State of Maharashtra, D
(2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150] and
in Sangeet v. State of Haryana [Sangeet v. State of Haryana,
(2013) 2 SCC 452 : (2013) 2 SCC (Cri) 611] where there is a
tendency to give primacy to the crime and consider the
criminal in a somewhat secondary manner. As observed
in Sangeet [Sangeet v. State of Haryana, (2013) 2 SCC 452 E
: (2013) 2 SCC (Cri) 611] “In the sentencing process, both
the crime and the criminal are equally important.” Therefore,
we should not forget that the criminal, however ruthless he
might be, is nevertheless a human being and is entitled to a
life of dignity notwithstanding his crime. Therefore, it is for F
the prosecution and the Courts to determine whether such a
person, notwithstanding his crime, can be reformed and
rehabilitated. To obtain and analyse this information is
certainly not an easy task but must nevertheless be undertaken.
The process of rehabilitation is also not a simple one since it
involves social reintegration of the convict into society. Of G
course, notwithstanding any information made available and
its analysis by experts coupled with the evidence on record,
there could be instances where the social reintegration of the
9
(2019) 12 SCC 460 H
18 SUPREME COURT REPORTS [2022] 8 S.C.R.
A convict may not be possible. If that should happen, the option
of a long duration of imprisonment is permissible.”
18. The Appellant was aged 25 years on the date of commission
of the offence and belongs to a Scheduled Tribes community, eking his
livelihood by doing manual labour. No evidence has been placed by the
B prosecution on record to show that there is no probability of rehabilitation
and reformation of the Appellant and the question of an alternative option
to death sentence is foreclosed. The Appellant had no criminal
antecedents before the commission of crime for which he has been
convicted. There is nothing adverse that has been reported against his
conduct in jail. Therefore, the death sentence requires to be commuted
C
to life imprisonment. However, taking into account the barbaric and
savage manner in which the offences of rape and murder were committed
by the Appellant on a hapless 11 year old girl, the Appellant is sentenced
to life imprisonment for a period of 30 years during which he shall not be
granted remission.
D
19. The Appeals are partly allowed. The conviction of the Appellant
under Sections 363, 366A, 364, 346, 376D, 376A, 302, 201 of Indian
Penal Code, 1860 (“IPC”) and Section 5(g)(m) read with Section 6 of
The Protection of Children from Sexual Offences Act, 2012 is upheld
and the sentence is converted from death to that of imprisonment for life
E for a period of 30 years without remission.
Divya Pandey Appeals partly allowed.
(Assisted by : Deepak Panwar, LCRA)
F
G
H
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