Supreme Court of India
H MANOHARANversusSTATE BY INSPECTOR OF POLICE, VARIETY HALL POLICE STATION, COIMBATORE (REVIEW PETITION (CRL.) NOS.446-447 OF 2019) IN
- Citation
- 2019 INSC 1216
- Decided
- 7 November 2019
- Disposal
- Disposed off
Holding
The review petitions are dismissed because the scope of review is limited to patent errors, the confession was voluntary and corroborated, and the offences qualify as the "rarest of rare" warranting the death penalty.
Summary
The petitioners were convicted for the abduction, rape, and murder of two children, based on a confessional statement, forensic evidence, and eyewitness testimony. They challenged the conviction and death sentence in a review petition, arguing that the confession was involuntary, the retraction should invalidate it, and that the death penalty was inappropriate given mitigating factors. The Court examined the scope of review, held that it is limited to errors apparent on the face of the record, and rejected the claim that the confession was coerced, finding the magistrate had complied with statutory safeguards. It further ruled that the retraction, made at the end of the trial, did not affect the voluntariness or reliability of the original confession, which was corroborated by other evidence. The Court concluded that the offences constitute the "rarest of rare" and upheld the death sentence, dismissing the review petitions.
Issues considered
- The permissible scope of a review petition in death‑penalty cases under Article 137 and Order 40 of the Supreme Court Rules
- Whether the confessional statement recorded under Sections 163 and 164 CrPC was voluntary and admissible despite a later retraction
- The effect of a retracted confession on the conviction when corroborated by other evidence
- Whether the death penalty is justified in the present case given the alleged mitigating circumstances
- Whether the lack of legal representation at the time of recording the confession or during trial warrants setting aside the conviction
- Whether the Protection of Children from Sexual Offences (POCSO) Act, 2012 can be applied retrospectively
Legislation cited
- Code of Criminal Procedure, 1973s. 163, s. 164, s. 167, s. 313, s. 432, s. 433
- Indian Evidence Act, 1872s. 106, s. 24
- Indian Penal Code, 1860s. 120-B, s. 201, s. 302, s. 364-A, s. 376(2)(f), s. 376(2)(g)
- Protection of Children from Sexual Offences (POCSO) Act, 2012
Subjects
death penaltyreview petitionconfessionretractionrarest of rarecriminal lawIndian Evidence ActCrPClegal aidPOCSO Actchild rapemurdersentencingscope of review
Judgment
1078 [2019]REPORTS
SUPREME COURT 18 S.C.R.1078 [2019] 18 S.C.R.
A MANOHARAN
v.
STATE BY INSPECTOR OF POLICE, VARIETY HALL
POLICE STATION, COIMBATORE
B (Review Petition (Crl.) Nos.446-447 of 2019)
in
(Criminal Appeal Nos.1174-1175 of 2019)
NOVEMBER 07, 2019
C [R. F. NARIMAN, SURYA KANT AND
SANJIV KHANNA, JJ.]
Review – In death penalty cases – Application of restrictive
principles – Murder – Rape – Co-accused (now deceased) using
borrowed school van, picked up a 10-year old girl and her 7-year
D old brother who were waiting to go to school – He thereafter picked
up his friend (accused-petitioner) from his house – Girl child was
raped and sodomised – Both children were administered poison (cow
dung powder) mixed in milk – However, they spat out the substance
and only ingested a small portion – Since poisoning did not work,
the children were thrown into a nearby canal, leading to their death
E by drowning – Conviction of accused-petitioner u/ss.302, 376(2)(f),
(g) & 201, IPC and death sentence by trial court and High Court –
Present three-Judge Bench unanimously affirmed the conviction and
by majority upheld the death sentence – Majority judgment
upholding conviction and death penalty delivered by Surya Kant,
F J. (for Rohinton F. Nariman, J. and himself) – Minority judgment
upholding conviction but awarding life sentence (till natural death)
without remission / commutation delivered by Sanjiv Khanna, J. –
Review Petitions – Held: Liable to be dismissed – Per Surya Kant,
J. (for R.F. Nariman, J. and himself), held: Prosecution case was
established through numerous evidences in addition to a clear
G confession proving petitioner’s guilt beyond any residual doubt –
Conflicting versions were deposed by petitioner and defence
witnesses, and no explanation to discharge onus u/s.106 of the
Evidence Act was provided – Hence, it was not a case fit for
application of theory of “residual doubt” – Just because the now
H deceased co-accused was the mastermind whose offence was
1078
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1079
HALL POLICE STATION, COIMBATORE
comparatively more egregious, one cannot commute the otherwise A
barbarically shocking offences of the petitioner – Also, attempted
retraction of confession by the petitioner showed how he was in
fact remorseless – It was not in the spur of the moment or a crime of
passion; but craftily planned, meticulously executed and with
multiple opportunities to cease and desist – Offences of petitioner
B
were so grave as to shock the conscience of the Court and of society
and amounted to the rarest of the rare – No grounds to review
judgment upholding his conviction and death penalty – Per Sanjiv
Khanna, J., held: Reasons given by Surya Kant, J. in dismissing the
review petition and upholding the conviction of petitioner are entirely
agreed upon and concurred with – On the question of sentence, no C
good ground and reasons to review the observations and findings
in the minority judgment – Penal Code, 1860 – ss. 302, 376(2)(f),
(g) & 201 – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – ss.24
and 106.
Review – Scope of – Held [per Surya Kant, J. (for R.F. D
Nariman, J. and himself)]: Scope of a review is more constrained
than that of an appeal – A party cannot be allowed to re-urge the
case on merits to effectively seek re-appreciation of evidence when
the matter has already been decided earlier, even if on different
grounds – Interference in the earlier judgement assailed in a Review
is permissible only on the basis of an error apparent on the face of E
record or discovery of important new evidence which has a direct
bearing on the ultimate outcome of the case and if not well
appreciated, would cause manifest injustice.
Precedents – Verdicts with multiple opinions – Interpretation
of – Dissenting opinions – Precedential value of – Held [per Surya F
Kant, J. (for R.F. Nariman, J. and himself)]: Dissenting opinions
have little precedential value and there is no difference in operation
between decisions rendered unanimously or those tendered by
majority, albeit with minority dissenting views – Jurisprudence.
Confession – Validity – Voluntariness of a confession – Held G
[per Surya Kant, J. (for R.F. Nariman, J. and himself)]: Cornerstone
of a valid confession in India is only whether such a statement was
made in compliance with statutory provisions which mandate that
the same must be before the Magistrate after compliance with certain
safeguards meant to ensure voluntariness and lack of coercion by H
1080 SUPREME COURT REPORTS [2019] 18 S.C.R.
A the police – On facts, the Magistrate (PW-28) duly complied with
all procedural requirements for recording of a confessional statement
and affirmatively satisfied himself of the voluntariness of the
petitioner’s confession – CrPC, 1973 – ss.163, 164 – Evidence Act,
1872 – s.24.
B Confession – Retracted confession – Effect of – Held [per
Surya Kant, J. (for R.F. Nariman, J. and himself)]:: Even in the
absence of an express provision for retracting a confessionary
statement once made, the Courts have preferred a rule of prudence
whereby in case of retraction, the Court reduces the probative value
of such confessionary statements and seeks corroborating evidence
C – CrPC, 1973 – ss.163, 164 – Evidence Act, 1872 – s. 24.
Confession – Objective and use of – Held [per Surya Kant,
J. (for R.F. Nariman, J. and himself)]: Provisions permitting use of
confessionary statements in criminal trials were statutorily included
as an acknowledgement of the possibility that in certain
D circumstances an accused may voluntarily confess to his offence(s).
Sentence / Sentencing – Death penalty – Plea that death ought
not to be awarded in cases of circumstantial evidence – Held [per
Surya Kant, J. (for R.F. Nariman, J. and himself)]: Not tenable –
There can be no hard rule of not awarding death in cases based on
E circumstantial evidence – Criminal Law.
Sentence / Sentencing – Death penalty cases – Opportunity
for oral arguments on the question of sentence – Held [per Surya
Kant, J. (for R.F. Nariman, J. and himself)]: In cases of death penalty,
since the punishment is irreversible and right to life u/Art.21 of the
F convict is violated, it is necessary to provide at least one opportunity
for oral arguments on the question of sentence – Constitution of
India, 1950 – Art. 21.
Sentence / Sentencing – Death penalty – Grounds for
commutation – Held [per Surya Kant, J. (for R.F. Nariman, J. and
G himself)]: Even observed devoid of any aggravating circumstances,
mere young age and presence of aged parents cannot be grounds
for commutation – One may view that such young age poses a
continuous burden on the State and presents a longer risk to society,
hence warranting more serious intervention by Courts.
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1081
HALL POLICE STATION, COIMBATORE
Code of Criminal Procedure, 1973 – s.164 – Defence plea A
regarding absence of a counsel during proceedings before the
Magistrate u/s.164, CrPC resulting into prejudice – Held [per Surya
Kant, J. (for R.F. Nariman, J. and himself)]: The plea is misconceived
– s.164 CrPC does not contemplate that a confession or statement
should necessarily be made in the presence of the advocate(s),
B
except, when such confessional statement is recorded with audio-
video electronic means.
Dismissing the review petitions, the Court
HELD : [per Surya Kant, J. (for R.F. Nariman, J. and
himself)]: C
1. Scope of Review: The scope of Review even in death
penalty cases is narrow and in various earlier decisions of the
Supreme Court restrictive principles were applied and re-affirmed
while considering the scope of review in death penalty cases.
The scope of a Review is more constrained than that of an appeal. D
A party cannot be allowed to reurge the case on merits to
effectively seek re-appreciation of evidence when the matter has
already been decided earlier, even if on different grounds.
Interference in the earlier judgement assailed in a Review is
permissible only on the basis of an error apparent on the face of
record or discovery of important new evidence which has a direct E
bearing on the ultimate outcome of the case and if not well
appreciated, would cause manifest injustice. [Paras 18, 19,
20][1096-C; 1097-A-G; 1098-A-B]
Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of
India (2014) 9 SCC 737 : [2014] 11 SCR 1009 – F
followed.
Vikram Singh v. State of Punjab (2017) 8 SCC 518 :
[2017] 8 SCR 177; Mukesh v. State of (NCT of Delhi)
(2018) 8 SCC 149 : [2018] 7 SCR 898; Kamlesh Verma
v. Mayawati (2013) 8 SCC 320 : [2013] 11 SCR 25 – G
relied on.
Manoharan v. State by Inspector of Police (2019) 7
SCC 716 – affirmed.
H
1082 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 2. Voluntariness of Confession & Effect of Retraction
2.1. On a conjoint reading of the confessional scheme
comprising of Sections 163, 164 CrPC and Section 24 Indian
Evidence Act, it is obvious that even in the absence of an express
provision for retracting a confessionary statement once made,
B the Courts have preferred a rule of prudence whereby in case of
retraction, the Court reduces the probative value of such
confessionary statements and seeks corroborating evidence.
Hence, the cornerstone of a valid confession in India is only
whether such a statement was made in compliance with statutory
provisions which mandate that the same must be before the
C Magistrate after compliance with certain safeguards meant to
ensure voluntariness and lack of coercion by the police. In the
instant case, from a chronological analysis of the confessional
statement of Petitioner dated 20.11.2010 (Ex.P.18) as well as the
preliminary examination held on 19.11.2010, it is apparent that
D the Magistrate (PW-28) duly complied with all procedural
requirements for recording of a confessional statement and
affirmatively satisfied himself of the voluntariness of the
petitioner’s confession. [Paras 23, 26][1099-B-D]
Bharat v. State of U.P. (1971) 3 SCC 950 and Abdul
E Razak Murlaza Dafadar v. State of Maharashtra AIR
1970 SC 283 : [1970] 1 SCR 551 – relied on.
Shivappa v. State of Karnataka (1995) 2 SCC 76 :
[1994] 6 Suppl. SCR 171; State of Assam v. Rabindra
Nath Guha 1982Cri LJ 216 – referred to.
F 2.2. The confession, in the present case, was not challenged
during stage of framing of charge or over the course of
examination of forty-seven prosecution witnesses, but instead
only partly disputed through a letter written in secret just before
petitioner’s examination under Section 313 CrPC. Such retraction
G at the fag-end of the trial, was not natural but rather meticulously
formulated, perhaps as a part of defence strategy. Hence, there
remains no doubt about the voluntariness of the confession of
20.11.2010 or it being unaffected by subsequent retraction. That
apart, even if the confession dated 20.11.2010 were to be treated
as being retracted vide letter dated 25.07.2012 (as adopted during
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1083
HALL POLICE STATION, COIMBATORE
examination under Section 313 CrPC), still the original confession A
can be relied upon. Coupled with corroborating evidence,
conviction can also be secured on the strength of such confession.
Still further, it is clear that even in the retraction statement, the
petitioner has made substantial admissions which read together
with prosecution evidence, are sufficient to convict him. Through
B
the letter dated 25.07.2012, the Petitioner merely restates his
confession with certain omissions and a few denials as compared
to his earlier statement. A comparison of the retraction with the
confession dated 20.11.2010 further shows that it is merely an
improvement. The Petitioner has admitted to all the general
circumstances of the incident, i.e. having been present at the C
scene of all crimes, being friend of the co-accused and of the
offences as claimed by the prosecution to have occurred.
However, he merely contends that the crimes were committed
by the co-accused and not by the Petitioner himself. Regardless
thereto, there are sufficient inculpatory admissions in the letter
D
dated 25.07.2012 to place a strong burden of proof on the
Petitioner under Section 106 of the IEA. Moreover, the petitioner
has not been convicted by the Courts below or this Court, solely
on the basis of his confession made under Section 164 CrPC.
The confession has been corroborated by enough evidence and
it would not be a stretch to state that even independent of such E
confessional statement, this Court would nevertheless have
reached a firm conclusion of guilt. [Paras 28, 29, 31 and 32][1102-
D-F; 1103-C-D; F-H]
Shankaria v. State of Rajasthan (1978) 3 SCC 435;
Subramania Goundan v. State of Madras AIR 1958 SC F
66 : [1958] SCR 428; Pyare Lal Bhargava v. State of
Rajasthan AIR 1963 SC 1094 : [1963] Suppl. SCR
689 – relied on.
3. Independent Re-appreciation of Evidence: The
contention raised that this Court decided the appeal without G
independently re-appreciating all the material on record, cannot
be accepted. This Court critically analysed all the material
witnesses and documents exhibited on record which were referred
to during the course of arguments. A careful examination of such
evidence lead to a unanimous finding of guilt against the Petitioner.
[Para 33][1104-A-B] H
1084 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 4. Plea of inadequacy of Legal Representation
4.1. Although it is correct that seven counsels refused to
defend the Petitioner and there was a resolution by the bar to not
take up his brief, but the Trial Court ensured the services of a
legal aid counsel who ably conducted petitioner’s defence during
B the trial. In the present facts no prejudice has been caused to the
petitioner for want of adequate or proper legal assistance. Not
only did the High Court re-appreciate the entire evidence, but it
also conducted another examination of the Petitioner under
Section 313, CrPC. Furthermore, the High Court appointed a
Senior Advocate, in addition to an Advocate, to provide the best
C legal services to the Petitioner. Similarly, in appeal, this Court
both re-appreciated the evidence and ensured due legal
representation. Even in the present Review, the petitioner’s
interests are protected by a Senior Counsel and as a matter of
abundant caution, this Court has also conducted an elaborate
D analysis. It is thus not found to be a case of deficient legal
assistance, affecting the Petitioner’s rights under Article 21 of
the Constitution. [Para 38, 39][1105-D, F-G; 1106-A]
4.2. The plea regarding absence of a counsel during
proceedings before the Magistrate under section 164, CrPC
E resulting into any prejudice, are misconceived. What mandatorily
is needed, is that the Magistrate must satisfy himself of the
voluntariness of the statement and all the statutory safeguards
which includes bringing the repercussions and the voluntariness
of making confessions to the knowledge of the accused, must be
meticulously complied with. Section 164 CrPC does not
F contemplate that a confession or statement should necessarily
be made in the presence of the advocate(s), except, when such
confessional statement is recorded with audio-video electronic
means. [Paras 40, 41][1106-B-D]
Hussainara Khatoon v. State of Bihar (1980) 1 SCC
G 98 : [1979] 3 SCR 532; State v. Navjot Sandhu (2005)
11 SCC 600 : [2005] 2 Suppl. SCR 79 – referred to.
Strickland v. Washington 466 U.S. 668 (1984) –
referred to.
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1085
HALL POLICE STATION, COIMBATORE
5. Allegations of discrepancies in arrest & recovery of A
evidence
The dispute re: the date of arrest is not only immaterial for
determination of petitioner’s guilt in the present case, but
otherwise also there is no substance therein. Analysis of the
depositions prove that the underwear of the deceased girl (MO- B
1) was recovered and sent for forensic examination without any
tampering. The seal on the parcel containing the underwear was
still intact when PW-49 received it for forensic examination.
Furthermore, casting a doubt on the identification of MO-1 by
the father of deceased (PW-1) is also baseless and holds no
ground. Merely because PW-1 did not dress his daughter on the C
date of the incident does not imply that he would not recognize a
piece of clothing of his daughter. PW-1 has clearly deposed that
MO-1 belongs to his daughter. [Paras 43, 48 and 49][1106-G;
1108-G-H; 1109-A-B]
6. Plea of erroneous conviction under Section 376 IPC D
Considering the final opinion of PW-46 (who conducted
autopsy on the body of the girl) that the girl was subjected to
sexual assault; injury on the penis of petitioner; recovery of dead
body of X without underwear; recovery of underwear from the
Maruti Van; father of X recognising the underwear; finding hair E
on the recovered underwear and matching of DNA of hair with
that of the petitioner, even in absence of the confessional
statement of the petitioner, it is established the petitioner
committed offence under Section 376 IPC. The petitioner is justly
convicted for offence under Section 376 IPC. [Para 55] F
[1110-F-H]
7. Plea of erroneous reliance on POCSO
It was urged that this Court ought not to have relied on a
recent amendment to the Protection of Children from Sexual
Offences (POCSO) Act, 2012 to justify death penalty, as the new G
law was non-existent on the date of occurrence and hence cannot
be applied retrospectively in derogation to Article 20 of the
Constitution. Although the plea is attractive at first glance, it must
be noted that the Petitioner has not been convicted or sentenced
under the POCSO Act. Instead, only a passing reference was
H
1086 SUPREME COURT REPORTS [2019] 18 S.C.R.
A made to pinpoint whether the present case was rarest of the rare
and whether it would shock the conscience of the society. [Paras
56, 57][1111-A-C]
Macchi Singh v. State of Punjab AIR 1983 SC 957 :
[1983] 3 SCR 413; Suthenraraja v. State, (1999) 9 SCC
B 323 : [1999] 3 Suppl. SCR 540; Ravishankar v. State
of Madhya Pradesh 2019 SCC OnLine SC 1290 –
referred to.
8. Sentencing
8.1.The contention that death ought not to be awarded in
C case of a single dissent, notwithstanding the opinion of the majority
is unsupported in view of more than one decisions of this Court.
Dissenting opinions have little precedential value and there is
no difference in operation between decisions rendered
unanimously or those tendered by majority, albeit with minority
D dissenting views. Nevertheless, this Court has re-visited the
mitigating circumstances against aggravating circumstances, as
well as a report commissioned by this Court during the course of
appeal and submitted by the jail superintendent which reveals
that the conduct of the Petitioner is merely satisfactory and he
has not undertaken any study or anything else to show any signs
E of reformation. The prosecution case has been established
through numerous evidences in addition to there being a clear
confession, which proves the Petitioner’s guilt beyond any
residual doubt. Conflicting versions have been deposed by the
Petitioner and the defence witnesses, and no explanation to
F discharge the onus under Section 106 of the Evidence Act has
been provided. Hence, it is not a case fit for application of the
theory of “residual doubt”. Accordingly, even the contention that
death ought not to be awarded considering that the present case
is one involving circumstantial evidence is unfounded. There can
be no hard rule of not awarding death in cases based on
G circumstantial evidence owing to recent developments in medical
science and the possibility of abuse by seasoned criminals. [Paras
59-62][1112-C; 1113-A-F]
Devender Pal Singh v. State of NCT of Delhi (2003) 2
SCC 501 : [2002] 5 Suppl. SCR 332; Krishna Mochi
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1087
HALL POLICE STATION, COIMBATORE
v. State of Bihar (2002) 6 SCC 81 : [2002] 3 SCR 1 – A
relied on.
8.2. Furthermore, there is nothing to support the
characterisation of the accused as being a helpless, illiterate young
adult who is a victim of his socio-economic circumstances. Far
from being so, it is clear through the version of events that the B
accused had the presence of mind to craft his own defence and
attempt to retract his confession through an elaborately written
eleven page letter addressed to the Magistrate and had further
received adequate legal representation. [Para 63][1113-G]
8.3. The retraction was extremely belated and only a defence C
to shield himself. Further, medical evidence has proved that rape
was committed on the deceased girl. It is hence factually incorrect
to state that the Petitioner prevented the co-accused from raping
the girl and is nothing more than a belated lie at the end of the
trial. Hence, the exculpatory parts ought to be excluded.
[Para 64][1114-A-B] D
8.4. Even observed devoid of any aggravating
circumstances, mere young age and presence of aged parents
cannot be grounds for commutation. One may view that such
young age poses a continuous burden on the State and presents
a longer risk to society, hence warranting more serious E
intervention by Courts. Similarly, just because the now deceased
co-accused was the mastermind whose offence was comparatively
more egregious, one cannot commute the otherwise barbarically
shocking offences of the petitioner. The current crime was not
just one offence, but comprised of multiple offences over the F
series of many hours. [Para 65][1114-C-D]
8.5. Even if the cases involving confession merit some
leniency and compassion, however, as was earlier noted in the
majority opinion, the attempted retraction of the statement shows
how the petitioner was in fact remorseless. Such belated G
retractions further lay rise to the fear that any remorse or
repentance being shown by the petitioner now may be temporary
and that he can relapse to his old ways. Irrespective of the
underlying reasons behind such retraction, whether it be the fear
H
1088 SUPREME COURT REPORTS [2019] 18 S.C.R.
A of death or feeling that he was not getting any benefit of his earlier
confession, but the possibility of recidivism has only been
heightened and one can no longer look at the initial confession in
a vacuum. [Para 66][1114-E-F]
8.6. Rather, the present case is essentially one where two
B accused misused societal trust to hold as captive two innocent
school-going children, one of whom was brutally raped and
sodomised, and thereupon administered poison and finally,
drowned by throwing them into a canal. It was not in the spur of
the moment or a crime of passion; but craftily planned,
meticulously executed and with multiple opportunities to cease
C
and desist. The present offence(s) of the Petitioner are so grave
as to shock the conscience of this Court and of society and would
without doubt amount to rarest of the rare. There exist no grounds
to review the judgment upholding conviction and death penalty.
[Paras 67, 68][1114-G-H; 1115-A-B]
D
Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347 :
[1969] 1 SCR 1033 – relied on.
HELD : (Per Sanjiv Khanna, J.)
The reasons given by Surya Kant, J. in dismissing the
E review petitions upholding the conviction of the petitioner under
Sections 302, 376(2)(f) and (g) and 201 of the Indian Penal Code
are entirely agreed upon and concurred with. On the question of
sentence, no good ground and reasons are seen to review the
observations and findings in the minority judgment. [Para 1]
F [1115-C, D]
Case Law Reference
[In Judgment of Surya Kant, J.(for R.F. Nariman, J. and himself)]
(2019) 7 SCC 716 affirmed Para 1
G
[2014] 11 SCR 1009 followed Para 17
[2017] 8 SCR 177 relied on Para 18
[2018] 7 SCR 898 relied on Para 19
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1089
HALL POLICE STATION, COIMBATORE
[2013] 11 SCR 25 relied on Para 19 A
[1994] 6 Suppl. SCR 171 referred to Para 22
(1971) 3 SCC 950 relied on Para 24
[1970] 1 SCR 551 relied on Para 26
1982 Cri LJ 216 referred to Para 26 B
(1978) 3 SCC 435 relied on Para 27
[1958] SCR 428 relied on Para 29
[1963] Suppl. SCR 689 relied on Para 29
C
[1979] 3 SCR 532 referred to Para 36
[2005] 2 Suppl. SCR 79 referred to Para 37
[1983] 3 SCR 413 referred to Para 57
[1999] 3 Suppl. SCR 540 referred to Para 58
D
[2002] 5 Suppl. SCR 332 relied on Para 59
[2002] 3 SCR 1 relied on Para 59
[1969] 1 SCR 1033 relied on Para 64
CRIMINAL APPELLATE JURISDICTION: Review Petition
E
(Criminal) Nos. 446-447 of 2019 in Criminal Appeal Nos. 1174-1175 of
2019.
From the Judgment and Order dated 01.08.2019 passed by
Supreme Court of India in Criminal Appeal Nos.1174-1175 of 2019.
Sidharth Luthra, Sr. Adv., Mrs. Revathy Raghavan, S. Muthu F
Krishnan, Ms. Divya Chaudhary, Mobin Akhtar, Amartya Kanjilal, Kartik
Murukutla, Ms. Aaayushi Sharma, Ms. Shubhangni Jain, Advs. for the
Petitioner.
M. Yogesh Kanna, Ms. Meha Aggarwal, Advs. for the
Respondent. G
H
1090 SUPREME COURT REPORTS [2019] 18 S.C.R.
A The Judgment and Order of the Court were delivered/passed by
SURYA KANT, J.
1. These review petitions are directed against the judgment dated
01.08.2019 passed in Manoharan v. State by Inspector of Police1,
wherein this three-Judge Bench had affirmed conviction of the accused
B Manoharan for offences punishable under Sections 302, 376(2)(f) and
(g) and 201 of the Indian Penal Code (in short “IPC”) and by majority
upheld the death sentence confirmed by the High Court.
Factual Matrix
C 2. Brief facts of the present case are as follows:
‘X’, a ten-year-old girl and ‘Y’, her 7-year-old brother were
enrolled in Classes V and II respectively in a private school at Coimbatore
and would commute around 7:45 a.m. in a pickup vehicle owned by one
Kartikeyan (PW-2). On 29.10.2010 the children left as usual with their
D school bags and lunch boxes and stood about two-hundred feet away
from their home, in front of the Vinayakar Temple. Around 8:00 a.m.,
PW-2 came to the designated pick-up spot but did not find the children
there. He contacted the children’s father, Ranjith Kumar Jain (PW-5),
over mobile to enquire about their absence. Being in Hyderabad, PW-5
was unable to provide an immediate reply to the query of PW-2 and
E hence called his wife, the children’s mother - Sangeetha (PW-8), who
informed him that both X and Y had already left home. Since the father
of the children (PW-5) was already on his way back to Coimbatore, he
entrusted his wife to look out for the children and co-ordinate with the
van driver. Sangeetha informed Karthikeyan that the children had already
F left the house, whereafter she along with her relatives Vijay Kumar
(PW-1) and Sanjai (PW-6) started searching for the children.
3. Kamala Bai (PW-9), the paternal grandmother of the children
had gone to a Jain Temple around 8:00 a.m. in the morning. Upon returning
home at 10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed
her that the children had been picked up by a former van driver and it
G
was conjectured that the children must be in school. Vijay Kumar
(PW-1) then went to the school and found that the children had however
not reached. After a frantic but futile search, PW-1 lodged a police
complaint (Ex. P1) with Vasuki (Sub-Inspector of Police, PW-42) at
H
1 (2019) 7 SCC 716.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1091
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
around 11AM under Section 363 of the Indian Penal Code (in short A
“IPC”).
4. The Investigating Officer (“IO”, PW-47), thereafter, took over
investigation and recorded statements of the informant (PW-1), the
school’s principal - Anthony Raj (PW-10), as well as of the grandmother
(PW-9) and the just returned father of the children (PW-5). First trace B
of the missing children was received at 6PM when Anthony Raj (PW-
10) informed the IO (PW-47) that one Chinnasamy (PW-22) had called
to inform that two school bags with identity cards bearing names of X
and Y were found floating in and later fished out from the Parambikulam-
Axhiyar Project (“PAP”) Canal. A second lead came to the Police from
Karthikeyan (PW-2) who received a call from his erstwhile employee – C
Anbu @ Gandhiraj (PW-7) who conveyed that one Mohanakrishnan
had borrowed a Maruti Omni Van from him that morning. This aroused
Karthikeyan’s suspicion since Mohanakrishnan was his former employee
whose services were terminated after it had been discovered that he
was borrowing money from the parents whose children were being D
transported to school by PW-2’s agency. The IO (PW-47) accordingly
advised both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alert
the police whenever Mohanakrishnan came to return the Omni Van. At
around 9:45PM, Anbu alerted the police that Mohanakrishnan had come
to return the Van and he had also confessed to the kidnapping, rape and
murder of the two missing children along with his friend Manoharan. E
Pursuant to the information received by Anbu, Mohanakrishnan was
arrested and a confessional statement was recorded in the presence of
Anbu (PW-7) and one Santosh Kumar (not examined as a witness).
The Maruti Omni Van along with one Nokia Cellphone and the driving
license of Mohanakrishnan were also seized. The IO consequently sent F
a report (Ex. P-30) for alteration of charge from under Section 363, IPC
to Sections 364(A), 376, 302 read with Section 201, IPC which was
received by the Magistrate at 11:45PM.
5. Having observed certain saliva and yellow-coloured stains on
the seized van, the IO requisitioned forensic assistance of Sarvanan G
(PW-43), Deputy Director of Mobile Unit of Tamil Nadu Forensic
Sciences Department. In the presence Sarvanan (PW-43), Anbu (PW-
7) and one Santosh Kumar (unexamined), the van was thoroughly
searched wherein a lady’s underwear bearing the inscription “SBT
Kidswear 75 c.m.” with hair strands was recovered. Sarvanan (PW-
H
1092 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 43) further collected the betel nut saliva stains on the left door of the van
with a cotton swab for chemical examination, as well as dried yellow-
colour stains found on the seat and floormat, and the clothes (namely
pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar Exs.
P-5 & P-6). Mohanakrishnan subsequently led a police team to the place
where he claimed to have raped X as well as to Deepalapatti, the place
B
from where the children had allegedly been pushed into the running waters
of the PAP canal.
6. The girl child’s body was found the subsequent morning in the
PAP canal by villagers near Palladam Taluk at 9:30AM, and the boy’s
body was later recovered from the canal around 12 kms from
C Deepalapatti. Postmortem was conducted by Dr. Jayasingh (PW-46) at
the Coimbatore Medical College and Hospital, wherein the following
injuries were recorded on X’s body:
“The body was first seen by the undersigned at 02.15 pm on
30.10.10. Its condition then was rigor mortis present all over
D the body. Post mortem commenced at 02.15 pm on 30.10.10.
Appearances found at the postmortem:-
Moderately nourished body of a female aged 10 yrs. Finger
and toenails bluish in colour. The body wearing blue colour
“T” shirt with white colour sticker named as “Suguna Rips”
E noted left side, black colour track suit with white line order,
white colour socks and white colour shoes and rose colour
shimmis. White colour frothy secretions noted over both nostrils
and mout. Water suddening noted over both palms and soles.”
7. The following ante mortem injuries noted over the body:
F
“1. Liner vertical scratch marks 4 in numbers in varying size
noted over lateral aspect right elbow joint.
2. Transverse scratch abrasions 3 in number in varying size
noted over lateral aspect of left upper forearm.
G 3. A scratch mark 3 in number noted over lower part of left
arm.
4. Contusion 2x1 cm x 0.5 depth noted over in the posterior
fourchettes and lateral wall of vagina. Hymen intact.
5. On examination of anus: - Anus found roomy measuring 3
H cm in diameter and mucosal tear 1x0.5 cm x mucosal deep
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1093
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
noted over left lateral aspect of the anus at the level of muco- A
cutaneous junction.
On dissection of Thorax and Abdomen: Contusion 4 x 2 cm
noted over anterior aspect of lower end of uterus.”
8. Similarly, in Y’s postmortem examination, the following ante
mortem injuries were noted: B
“1. Bluish contusion 3 x 2 cm noted on middle of left side
neck, 3 cm left to midline.
2. Bluish contusion 3 x 2 cm noted over outer aspect of right
forearm. C
3. Bluish contusion noted over right side third intercostal
space.
4. On dissection of scalp, skull and dura: sub scalpel
contusion 20 x 10 cm noted over bi frontal region and bi
parietal region. Diffuse sub dural and sub arachnoid D
haemorrhages noted on both cerebral hemispheres.
5. On bloodless dissection of neck: contusion 4 x 3 cm noted
on left side middle of neck. Hyoid bone found intact.”
9. The present review-petitioner, Manoharan (hereinafter
“petitioner”) who was stated to have perpetrated the crime along with E
Mohanakrishnan, was arrested on 31.10.2010 at 7AM, as recorded in
Ex. D-4. Manoharan made a disclosure statement to the police (Ex. P-
21) on the basis of which the IO (PW-47) recovered lunch box of Y
from his house. Further, after being produced before the Magistrate the
same day, the petitioner was sent to judicial custody. F
10. A Test Identification Parade was conducted on request of the
IO whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver
of the van in which the children had been kidnapped. Subsequently, both
the petitioner and Mohanakrishnan were medically examined on
04.11.2010 whereby samples of their blood and saliva were sent to the G
Tamil Nadu Forensic Science Laboratory for DNA Analysis. A potency
test of the petitioner was conducted by Dr. J.R. Singh (PW-46), who in
his medical report (Ex. P-56) found him potent and further noticed signs
of injury around his private parts.
H
1094 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 11. During recovery proceedings under Section 27 of the Indian
Evidence Act (in short “IEA”), whilst in police custody, Mohanakrishnan
shot and wounded two police officers and was consequently shot dead
by the Police on 09.11.2010. Thus, the trial against Mohanakrishnan
was abated and the petitioner alone was left to be tried as an accused.
B 12. Succinctly, the prosecution’s version of events is that
Mohanakrishnan using a borrowed school van, picked up two children
(X and Y) who were waiting to go to school at about 7:50 a.m. He
further picked up his friend, Manoharan from his house at 9:30 a.m. and
subsequently, they took the children to a remote location where after the
girl child was raped and sodomised. Subsequently, Manoharan and
C Mohanakrishnan purchased cow dung powder (a poisonous substance)
which was mixed in milk and then administered to the children to end
their life. However, both the children spat out the substance and only
ingested a small portion. Since poisoning did not work, Mohanakrishnan
and the petitioner threw both the children into the turbulent waters of a
D nearby Canal, hence drowning them.
CASE HISTORY
13. Over the course of the trial, the prosecution examined forty-
nine witnesses in all including persons who witnessed abduction, purchase
of milk and cow dung powder and those having seen children in the
E custody of accused persons at various places. Further, various medical
and forensic evidence were produced, proving drowning and rape as
well as injuries on Petitioner’s body. A ‘last seen theory’ was built by the
prosecution, in addition to use of a confessional statement made by the
petitioner under Section 164, CrPC. The Trial Court ultimately held the
F Petitioner guilty under Section 120-B, 364-A, 376, 302 r/w 34 and 201
IPC. Under Section 376, the Petitioner was awarded life sentence and
for offence under Section 302 IPC he was given death sentence.
14. The Madras High Court set aside conviction of Petitioner
under Sec. 120-B and 364A IPC but confirmed the sentences under
G Sec. 376, 302 r/w 34 and 201 IPC. After considering aggravating and
mitigating circumstances, the High Court confirmed death sentence
awarded by the Trial Court.
15. Thereafter the Petitioner filed a Special Leave Petition under
Article 136 whereby this Court dismissed his appeal and confirmed the
death sentence by majority, observing that the case fell in the category
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1095
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
of the ‘rarest of rare’ cases. After considering all evidence on record A
and contentions of the counsels, the majority opinion of this Court read
as follows:
“In the circumstances, we have no doubt that the trial court
and High Court have correctly applied and balanced
aggravating circumstances with mitigating circumstances to B
find that the crime committed was cold blooded and involves
the rape of a minor girl and murder of two children in the
most heinous fashion possible. No remorse has been shown
by the Petitioner at all and given the nature of the crime as
stated in paragraph 84 of the High Court’s judgment it is
unlikely that the Petitioner, if set free, would not be capable C
of committing such a crime yet again. The fact that the
Petitioner made a confessional statement would not, on the
facts of this case, mean that he showed remorse for committing
such a heinous crime. He did not stand by this confessional
statement, but falsely retracted only those parts of the D
statement which implicated him of both the rape of the young
girl and the murder of both her and her little brother.
Consequently, we confirm the death sentence and dismiss the
appeals.”
16. Khanna J., in his minority opinion also upheld conviction under E
the various offences concerned, but dissented on the quantum of sentence,
holding as follows:
“I would, therefore, uphold and maintain conviction of the
appellant under Sections 302, 376(2)(f) and (g) and 201 IPC
and the sentences awarded under Sections 376(2)(f) and (g) F
and 201 IPC. To this extent the appeal is dismissed. In view
of the aforesaid discussion and on balancing aggravating
and mitigating circumstances, in my opinion, the present case
does not fall under the category of “rarest of the rare” case
i.e. there is no alternative but to impose death sentence. It
would fall within the special category of cases, where the G
appellant should be directed to suffer sentence for life i.e. till
his natural death, without remission/commutation under
Sections 432 and 433 CrPC. To this extent I would allow the
appeal.”
H
1096 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 17. The Petitioner then filed the present petition for review of the
said judgement and order dated 01.08.2019, which was heard at
considerable length in open Court following the parameters evolved in
Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India2, wherein
a Constitutional Bench of this Court held that in cases of death penalty,
since the punishment is irreversible and Article 21 of the convict is violated,
B
it is necessary to provide at least one opportunity for oral arguments on
the question of sentence.
SCOPE OF REVIEW
18. At the outset, it may be clarified that the scope of Review
C even in death penalty cases has been narrowed down in Vikram Singh
v. State of Punjab3, laying down that review can only be on a glaring
error apparent on the face of the judgement or order. A mere change or
addition of grounds cannot be allowed at the stage of review. This Court
thus held as follows:
D “23. In view of the above, it is clear that scope, ambit and
parameters of review jurisdiction are well defined. Normally
in a criminal proceeding, review applications cannot be
entertained except on the ground of error apparent on the
face of the record. Further, the power given to this Court
under Article 137 is wider and in an appropriate case can be
E exercised to mitigate a manifest injustice. By review application
an applicant cannot be allowed to reargue the appeal on the
grounds which were urged at the time of the hearing of the
criminal appeal. Even if the applicant succeeds in establishing
that there may be another view possible on the conviction or
F sentence of the accused that is not a sufficient ground for
review. This Court shall exercise its jurisdiction to review only
when a glaring omission or patent mistake has crept in the
earlier decision due to judicial fallibility. There has to be an
error apparent on the face of the record leading to miscarriage
of justice to exercise the review jurisdiction under Article 137
G read with Order 40 Rule 1. There has to be a material error
manifest on the face of the record with results in the
miscarriage of justice.”
2
(2014) 9 SCC 737.
H 3 (2017) 8 SCC 518.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1097
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
19. The above cited decision was reiterated in Mukesh v. State A
of (NCT of Delhi)4 where also similar restrictive principles were applied
and re-affirmed while considering the scope of review in death penalty
cases. Reliance was placed on the dictum in Kamlesh Verma v.
Mayawati5, prescribing that Courts should refrain from re-appreciating
the entirety of evidence only to arrive at a different possible conclusion,
B
besides illustrating an inexhaustible list of instances where review shall
not be maintainable. The relevant part reads as follows:
“20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough
to reopen concluded adjudications. C
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original
hearing of the case.
(iv) Review is not maintainable unless the material error, D
manifest on the face of the order, undermines its soundness
or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected but lies only for
patent error.
E
(vi) The mere possibility of two views on the subject cannot
be a ground for review.
(vii) The error apparent on the face of the record should not
be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within F
the domain of the appellate court, it cannot be permitted to
be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought
at the time of arguing the main matter had been negatived.”
G
20. It is, therefore, to be kept in mind that the scope of a Review
is more constrained than that of an appeal. A party cannot be allowed to
reurge the case on merits to effectively seek re-appreciation of evidence
4 (2018) 8 SCC 149.
5 (2013) 8 SCC 320. H
1098 SUPREME COURT REPORTS [2019] 18 S.C.R.
A when the matter has already been decided earlier, even if on different
grounds. Interference in the earlier judgement assailed in a Review is
permissible only on the basis of an error apparent on the face of record
or discovery of important new evidence which has a direct bearing on
the ultimate outcome of the case and if not well appreciated, would
cause manifest injustice.
B
21. Learned Senior Counsel for the petitioner, Mr. Siddharth Luthra
has made a deft challenge to our judgment, through a multifaceted attack
on both merits and procedure of the case. He forcefully urged for setting
aside the conviction and in the alternate, requested commutation of the
sentence of death.
C
VOLUNTARINESS OF CONFESSION & EFFECT OF RETRACTION
22. The arguments for the Petitioner begun with challenge to
reliance by this Court on confessional statement of the accused.
Mr. Luthra strenuously contended that strict compliance with the
D safeguards for recording a confessional statement as mandated under
Section 164 are mandatory, as ruled in Shivappa v. State of Karnataka6.
He strongly disputed the admissibility of the confessional statement made
by the petitioner before a Magistrate on 20.11.2010 on the premise that:
(a) Confession was coerced and involuntary, and in contravention
E of Section 163, CrPC and Section 24, IEA for first, the
petitioner had been physically assaulted by the police whilst
in custody, as evidenced through answer to Question 8 posed
by the Magistrate during preliminary examination on
19.11.2010. Second, the petitioner was under severe
psychological stress owing to the in-custody killing of the co-
F accused Mohanakrishnan on 09.11.2010; and third,
circumstances surrounding confession were suspicious, for
the IO (PW-47) moved an application stating that the petitioner
was ready to volunteer a confession when he was in judicial
and not police custody.
G (b) The Magistrate failed to comply with the mandatory procedure
as prescribed under Section 164, CrPC since he did not inform
the petitioner that he would not be sent to police custody after
recording of the confessional statement.
H 6 (1995) 2 SCC 76
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1099
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
23. In light of the vehement attempt at assailing the confessional A
statement as being non-voluntary and violative of the right guaranteed
under Article 20(3) of the Constitution and in the alternate its reliance
for having been retracted by the petitioner, it may be briefly noticed that
on a conjoint reading of the confessional scheme comprising of Sections
163, 164 CrPC and Section 24 IEA as construed in a catena of decisions
B
of this Court, it is obvious that even in the absence of an express provision
for retracting a confessionary statement once made, the Courts have
preferred a rule of prudence whereby in case of retraction, the Court
reduces the probative value of such confessionary statements and seeks
corroborating evidence.
24. Hence, the cornerstone of a valid confession in India is only C
whether such a statement was made in compliance with statutory
provisions which mandate that the same must be before the Magistrate
after compliance with certain safeguards meant to ensure voluntariness
and lack of coercion by the police. This has been so noted by this Court
in Bharat v. State of U.P.7: D
“7. ... Confessions can be acted upon if the court is satisfied
that they are voluntary and that they are true. The voluntary
nature of the confession depends upon whether there was
any threat, inducement or promise and its truth is judged in
the context of the entire prosecution case. The confession must E
fit into the proved facts and not run counter to them. When
the voluntary character of the confession and its truth are
accepted it is safe to rely on it. Indeed a confession, if it is
voluntary and true and not made under any inducement or
threat or promise, is the most patent piece of evidence against
the maker. Retracted confession, however, stands on a slightly F
different footing. As the Privy Council once stated, in India it
is the rule to find a confession and to find it retracted later. A
court may take into account the retracted confession, but it
must look for the reasons for the making of the confession as
well as for its retraction, and must weigh the two to determine G
whether the retraction affects the voluntary nature of the
confession or not. If the court is satisfied that it was retracted
because of an after thought or advice, the retraction may not
weigh with the court if the general facts proved in the case
7 (1971) 3 SCC 950 H
1100 SUPREME COURT REPORTS [2019] 18 S.C.R.
A and the tenor of the confession as made and the circumstances
of its making and withdrawal warrant its user. All the same,
the courts do not act upon the retracted confession without
finding assurance from some other sources as to the guilt of
the accused. Therefore, it can be stated that a true confession
made voluntarily may be acted upon with slight evidence to
B
corroborate it, but a retracted confession requires the general
assurance that the retraction was an after thought and that
the earlier statement was true. ...”
25. The objective behind such a provision has been explored by
this Court in various decisions wherein it has been noted that provisions
C permitting use of confessionary statements in criminal trials were
statutorily included as an acknowledgement of the possibility that in certain
circumstances an accused may voluntarily confess to his offence(s).
26. From a chronological analysis of the confessional statement
of Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminary
D examination held on 19.11.2010, it is apparent that the learned Magistrate
- S.S. Sathiamoorthy (PW-28) duly complied with all procedural
requirements for recording of a confessional statement and affirmatively
satisfied himself of the voluntariness of the petitioner’s confession:
a. During preliminary examination, the petitioner informed the
E Magistrate that he was brought from Central Jail, Coimbatore on
19.11.2010, hence abridging the possibility of any coercion or influence
by the police. Further, a perusal of the record shows that petitioner was
last in police custody only on 11.11.2010 and hence there is no doubt that
he had been in judicial custody for some time prior to giving a confessional
F statement. Hence per Abdul Razak Murlaza Dafadar v. State of
Maharashtra8 it can be inferred that he was not under the influence of
the investigating agency.
b. In reply to Question 8 during preliminary examination on
19.11.2010, when asked by the Magistrate whether someone tortured
G him, the petitioner does say that he was beaten by the police. However,
when asked whether the “police tortured and compel you to give
statement like this”, the petitioner denied any such torture or compulsion.
Similarly, when the Magistrate asked him whether he was told some
sweet words such as “the confession statement will be beneficial or
H 8 AIR 1970 SC 283.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1101
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
where you threatened by police or by anybody else that if statement A
was not given”, the petitioner specifically denied the same. He also
acknowledged the fact that he was not under compulsion to give a
confession statement and that he was aware of the fact that such
statement could be used against him. Further, when re-questioned by
the Magistrate if the petitioner was tortured, he answered in the negative.
B
Hence, not only was the petitioner inconsistent in his claims, but further
it is evident that the alleged physical assault by the police, if at all, would
have been committed weeks before the confession. Vague and passing
claims of police assault, supposedly committed far before the confessional
date, cannot be a ground for holding the confession as coerced.
c. After preliminary questioning on 19.11.2010, the petitioner was C
entrusted to the Prison Warden and sent back to judicial custody for
reflection “after duly informing him that he was not under obligation
to give confessional statement.” The petitioner was re-produced before
the Magistrate on the next day at 2PM and was again given an opportunity
to change his mind and not confess. The Magistrate once more satisfied D
himself of the voluntariness of the petitioner and the absence of any
police influence. Hence, it is clear that an adequate opportunity to recant
was provided and the Magistrate ensured that any possible lingering
effects of alleged beatings or psychological stress post encounter of co-
accused, would have been mitigated. It is also apparent that the Magistarte
duly informed the petitioner about the repurcussions of his confessional E
statement, and made no false assurance of it helping his case, as had
been made in State of Assam v. Rabindra Nath Guha9, which has
erroneously been relied upon by Mr. Luthra.
d. The statement once recorded, was thereafter read out to the
petitioner who signed it to be correct. The Magistrate signed the statement F
at 4:30 PM on 20.11.2010, and afterwards sent the petitioner to judicial
custody. The Magistrate thus was fully conscious of his statutory obligation
and factually ensured that the petitioner was not sent to police custody
post the confessional statement. It is further clear that the petitioner
was kept in judicial custody for almost twenty months after the confession, G
over the course of which there was no likelihood of him being entrusted
to police, and still no protest or attempt to retract the confession was
made by him.
9 1982 Cri LJ 216. H
1102 SUPREME COURT REPORTS [2019] 18 S.C.R.
A e. The fact that the application to record the petitioner’s statement
was moved by the IO is inconsequential, as the petitioner was neither in
police custody nor, as acknowledged by him, the police officials interacted
with him during judicial custody. It is thus far-fetched to use the fact that
police put forth the request for recording of confession to suggest that
the confession was involuntary or secured at the behest of police.
B
27. Further, it is essential to note that the petitioner failed to put
forth any protest against the confessional statement despite having
multiple opportunities during the course of trial. This Court has held earlier
in Shankaria v. State of Rajasthan10 that retractions must be made by
the accused as soon as possible, otherwise there would be a strong
C presumption of voluntariness in the confession.
28. The confession, in the present case, was not challenged during
stage of framing of charge or over the course of examination of forty-
seven prosecution witnesses, but instead only partly disputed through a
letter written in secret just before petitioner’s examination under Section
D 313 of the Code. It is thus evident that such retraction at the fag-end of
the trial, was not natural but rather meticulously formulated, perhaps as
a part of defence strategy. Hence, there remains no doubt about the
voluntariness of the confession of 20.11.2010 or it being unaffected by
subsequent retraction.
E 29. That apart, even if the confession dated 20.11.2010 were to
be treated as being retracted vide letter dated 25.07.2012 (as adopted
during examination under Section 313 of the Code), still the original
confession can be relied upon. Coupled with corroborating evidence,
conviction can also be secured on the strength of such confession. The
F rule regarding use of such retracted confessions was noted by this Court
in Subramania Goundan v. State of Madras11 as well asby a four-
Judge Bench of this Court in Pyare Lal Bhargava v. State of
Rajasthan12, holding that:
“A retracted confession may form the legal basis of a
G conviction if the court is satisfied that it was true and was
voluntarily made. But it has been held that a court shall not
base a conviction on such a confession without corroboration.
10 (1978) 3 SCC 435.
11 AIR 1958 SC 66.
12 AIR 1963 SC 1094.
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1103
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
It is not a rule of law, but is only a rule of prudence. It cannot A
even be laid down as an inflexible rule of practice or
prudence that under no circumstances such a conviction can
be made without corroboration, for a court may, in a
particular case, be convinced of the absolute truth of a
confession and prepared to act upon it without corroboration;
B
but it may be laid down as a general rule of practice that it is
unsafe to rely upon a confession, much less on a retracted
confession, unless the court is satisfied that the retracted
confession is true and voluntarily made and has been
corroborated in material particulars.”
30. Still further, it is clear that even in the retraction statement, the C
petitioner has made substantial admissions which read together with
prosecution evidence, are sufficient to convict him. Through the letter
dated 25.07.2012, the Petitioner merely restates his confession with
certain omissions and a few denials as compared to his earlier statement.
Although he agrees to be at the place of the occurrence along with the D
now deceased Mohanakrishnan throughout the incident, instead of
admitting an equal role in commission of rape and murder, he portrays
himself to be a mere helpless bystander. The petitioner has attempted to
justify his retraction by stating that he had told the truth to the Magistrate
but his statement was not read out to him and hence the Magistrate’s
affirmation under Section 164 of the Code is incorrect. E
31. A comparison of the retraction with the confession dated
20.11.2010 further shows that it is merely an improvement. The Petitioner
has admitted to all the general circumstances of the incident, i.e. having
been present at the scene of all crimes, being friend of the co-accused
and of the offences as claimed by the prosecution to have occurred. F
However, he merely contends that the crimes were committed by the
co-accused and not by the Petitioner himself. Regardless thereto, there
are sufficient inculpatory admissions in the letter dated 25.07.2012 to
place a strong burden of proof on the Petitioner under Section 106 of the
IEA. G
32. Moreover, we must note that the petitioner has not been
convicted by the Courts below or this Court, solely on the basis of his
confession made under Section 164 of the Code. The confession has
been corroborated by enough evidence and it would not be a stretch to
state that even independent of such confessional statement, this Court H
would nevertheless have reached a firm conclusion of guilt.
1104 SUPREME COURT REPORTS [2019] 18 S.C.R.
A INDEPENDENT RE-APPRECIATION OF EVIDENCE
33. The second contention raised by Mr. Luthra is that this Court
decided the appeal without independently re-appreciating all the material
on record. We are in strong disagreement with this contention. This
Court critically analysed all the material witnesses and documents
B exhibited on record which were referred to during the course of
arguments. A careful examination of such evidence lead to a unanimous
finding of guilt against the Petitioner. It was noted by the majority that:
“PW.20, PW.25 and PW.23 all saw the two accused together
with the children at different times on 29.10.2010. Indeed,
C even if one were to read the confessional statement of the
Appellant together with the retraction thereof, the fact that
he purchased milk at 1.00 p.m. from PW.23 is clearly made
out and the fact that Mohanakrishnan went to meet the tailor,
was also admitted by him in both the original confessional
statement as well as the retraction. It is clear therefore that
D the evidence of PW.20 and 23 are corroborated by the
confessional statement and the retraction made by the
Appellant and therefore the factum of the two accused being
with the two children in the vehicle is clearly made out and
thus the High Court’s conclusion that the last seen theory
E can be relied upon cannot possibly be assailed.”
34. Such an independent re-appreciation was also conducted by
Khanna J. in his minority opinion in para nos. 23 to 29.
INADEQUACY OF LEGAL REPRESENTATION
F 35. Mr. Luthra seeks to make a third core challenge by placing
reliance on Article 21 of the Constitution of India, claiming that it mandates
adequate and efficient legal assistance, the denial whereof would amount
to condemning one unheard.
36. There cannot be any quarrel with the cited proposition for it is
a fundamental tenet of criminal jurisprudence, least not because of our
G
Constitution, that every person has a right to effective legal assistance.
In case an accused cannot afford the same, then it is the responsibility
of the State to provide free legal aid, as definitively noted in Hussainara
Khatoon v. State of Bihar13. However, we feel that such a right has
H 13 (1980) 1 SCC 98.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1105
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
been protected in the present case and the legal representation accorded A
to the petitioner was not inadequate.
37. At the outset, as noted in State v. Navjot Sandhu14 judicial
scrutiny of a counsel’s performance must be careful, deferential and
circumspect for not doing so would give rise to the dangerous possibility
of convicts raising such pleas of inadequate legal assistance after adverse B
verdicts. It would also be useful to cite Strickland v. Washington15
wherein the Supreme Court of the United States, laid down that to
demand re-trial or acquittal on grounds of inadequate legal representation,
the accused must show both that the assistance of the counsel was
deficient per an objective standard of reasonableness as developed by
customary practice, as well as that such deficiency has with a reasonable C
probability affected the outcome of the case, such that had he received
adequate representation, the result would have been different.
38. It is clear that the petitioner has failed to demonstrate either
of these legs in the present case. Although it is correct that seven counsels
refused to defend the Petitioner and there was a resolution by the bar to D
not take up his brief, but the Trial Court ensured the services of a legal
aid counsel who ably conducted petitioner’s defence during the trial.
The record reveals that from 23.02.2011 till 18.06.2012, no effective
proceedings were held and post 18.06.2012, legal aid counsel Mrs. A.
Sharmila appeared on behalf of the petitioner. The length and quality of E
cross-examination conducted by the court-appointed counsel testifies
her legal acumen and professional ability. Hence, there can be no question
on the adequacy of counsel’s performance.
39. Notwithstanding the above determination, we must note that
in the present facts no prejudice has been caused to the petitioner for F
want of adequate or proper legal assistance. Not only did the High Court
reappreciate the entire evidence, but it also conducted another examination
of the Petitioner under Section 313, CrPC. Furthermore, the High Court
appointed a Senior Advocate, Mr. A Raghunathan, in addition to Advocate
Smt. Vairam, to provide the best legal services to the Petitioner. Similarly,
in appeal, this Court both re-appreciated the evidence and ensured due G
legal representation. Even in the present Review, the petitioner’s interests
are protected by an outstanding Senior Counsel and as a matter of
abundant caution, we have also conducted an elaborate analysis. We
14 (2005) 11 SCC 600.
15 466 U.S. 668 (1984). H
1106 SUPREME COURT REPORTS [2019] 18 S.C.R.
A thus do not find this to be a case of deficient legal assistance, affecting
the Petitioner’s rights under Article 21 of the Constitution.
40. The plea regarding absence of a counsel during proceedings
before the Magistrate under section 164, CrPC resulting into any
prejudice, are misconceived. What mandatorily is needed, as noted earlier,
B is that the Magistrate must satisfy himself of the voluntariness of the
statement and all the statutory safeguards which includes bringing the
repercussions and the voluntariness of making confessions to the
knowledge of the accused, must be meticulously complied with. It is
pertinent to take note of the first Proviso to Section 164(1), added with
effect from 31.12.2009, which specifies that:
C
“Provided that any confession or statement made under this
sub-section may also be recorded by audio-video electronic
means in the presence of the advocate of the person accused
of an offence.”
(emphasis supplied)
D
41. Section 164 of the Code thus does not contemplate that a
confession or statement should necessarily be made in the presence of
the advocate(s), except, when such confessional statement is recorded
with audio-video electronic means.
E DISCREPANCIES IN ARREST & RECOVERY OF EVIDENCE
42. The next contention of Mr. Luthra revolves around the date
of arrest of the petitioner. According to him, the petitioner was arrested
from his village Anglapurchi post-midnight on 29.10.2010 and not on
31.10.2010 at 7:00 a.m. The petitioner was not sent to custody after
formal arrest till an alleged confession was recorded before the Village
F
Administrative Officer, S. Ganesan (PW-30). Mr. Luthra relies upon the
cross-examination of PW-47 where he is stated to have admitted that
the petitioner was caught in his village after midnight of 29.10.2010.
43. Not only is the dispute re: the date of arrest immaterial for
determination of petitioner’s guilt in the present case, but we otherwise
G do not find any substance therein. First, the petitioner’s arrest on
31.10.2010 at 7:00 a.m. is proved by Exhibit D4 which is duly signed by
his father (DW-1). P. Ramasamy (DW-1) has admitted his signatures
on the Exhibit D4, proving the date and time of the arrest. Second, the
plea at best assumes violation of Section 167 of CrPC which mandates
H production of the suspect before the jurisdictional magistrate within 24
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1107
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
hours of arrest. The adverse impact of such assumed variation on the A
Judicial proceedings has also not been convincingly demonstrated. Mr.
Luthra’s contention would have carried some weight had it been a case
of making confessional statement by the petitioner before the Judicial
Magistrate on 30/31.10.2010, that is, when he was allegedly in police
custody.
B
44. Mr. Luthra very ably made an attempt to cast doubt on the
recovery of the underwear of the deceased girl as well as the presence
of pubic hair of the Petitioner on the said underwear. It was argued that
the underwear worn by the deceased remained in the custody of the
police till 01.11.2010, therefore plantation of hair on the panty cannot be
ruled out. C
45. Firstly, such a plea is at variance from the submission made
before the High Court where it was argued that police had planted the
pubic hair on 04.11.2010. Secondly, there is no factual discrepancy in
the prosecution case as may be seen from the following facts:
D
i. The police found Mohanakrishnan in the house of one A.
Anbu (PW-7) on 29.10.2010 at about 9:45 pm. Pursuant to
this, the Maruti Van was inspected by the police in presence
of PW-7 and one Santosh Kumar. Appropriately, Mahazar
(Ex.P.4) was prepared by the police incorporating details
of seizure of van and presence of stains on its doors and E
floor mat.
ii. Thereafter, A. Sarvanan (PW-43), Deputy Director of
Mobile Unit of Tamil Nadu Forensic Sciences Department
was called by the IO (PW-47) at around midnight of 29/
30.10.2010. PW-43 examined the van whereby the F
underwear of the deceased girl (MO-1) was found with
hair strands. Cellophane tape was applied to the hair strands
by PW-43, to keep them at their spot and the MO-1 was
then put in a cover and sealed. Further, PW-47 sealed the
same in an ‘Angelform’ brassieres cardboard box, obtained
G
from vicinity and seized it as Mahazar (Ex.P.5).
iii. Accordingly, Ex.P.5 reached the Judicial Magistrate on
30.10.2010 along with Form 95 pertaining to the MO-1.
This explains the delay of one day in production of Ex.P.5
before the Judicial Magistrate.
H
1108 SUPREME COURT REPORTS [2019] 18 S.C.R.
A iv. Moreover, since 30.10.2010 was a Saturday, the Judicial
Magistrate directed Ex.P.5 to be produced again on the next
working day i.e. 01.11.2010. Hence, the box was re-
produced before the Judicial Magistrate on 01.12.2010 and
was then forwarded to Tamil Nadu Forensic Sciences
Department for further analysis.
B
46. PW-43 prepared his report (Ex.P.38) and sent it to the IO for
further forensic examination, wherein it was recorded that:
“a) A Pink coloured panty printed letters “SBT kids wear”
“75cms” with pale brownish starchy like stains with small
C hair pieces on its inner surface was found beneath the back
seat of the vehicle was identified, collected. The place where
the hair pieces were seen were marked and pasted with
cellphone tape in order to safety transport the vital cue
materials for comprehensive Forensic analysis.”
D 47. Additionally, Mrs. Lakshmi Balasubramanian (PW-49), Deputy
Director of DNA Division of the Forensic Science Department stated in
her cross-examination that the underwear was received by her for
examination, in a sealed parcel. She has said:
“It is correct to state that my first prerogative is to satisfy that
E the seal of the container in which the items received for testing,
is not broken. It is correct to state that the items and the paper
covers would be sealed with the Medical Officer’s seal. The
parcel received by me contained the Medical Officer’s seal
and not any Court seal. It is correct to state that in my report
I have not mentioned that the seals were not broken.
F
XXX
By “correct seals”, I mean that the same seal on the letter
and the sample seal on the paper covers are the same.”
48. Analysis of the depositions as reproduced above prove that
G the underwear was recovered and sent for forensic examination without
any tampering. The seal on the parcel containing the underwear was
still intact when PW-49 received it for forensic examination.
49. We find that the contention of the learned Senior Counsel,
pertaining to non-production of the property room Register is of no force
H since it has not been raised before at any stage of the proceedings and
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1109
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
thus cannot be allowed to be argued afresh at the stage of Review. A
Furthermore, casting a doubt on the identification of MO-1 by the father
of deceased (PW-1) is also baseless and holds no ground. Merely because
PW-1 did not dress his daughter on the date of the incident does not
imply that he would not recognize a piece of clothing of his daughter.
PW-1 has clearly deposed that MO-1 belongs to his daughter.
B
Erroneous conviction under section 376 ipc
50. In the judgment-under-review, it was argued by Mr. Luthra
that even per the confessional statement, the accused only committed
anal intercourse which is punishable under Section 377 IPC, and he has
been wrongly convicted under Section 376 IPC. Such a plea, however, C
does not find support from the overwhelming evidence to the contrary.
First, relevant portions of the confessional statement need to be extracted:
“… I asked him to give me a chance. He asked me to do it
with the girl. Seated from the front seat, Mohan saw. I went
and saw the girl who was without a pant. I placed my penis
D
on the front side when the girl cried saying it was paining.
Then I did through backside through anus. Even that did not
come good for me. Then I masturbated and brought out semen.
…”
51. The confessional statement lucidly reveals that the accused
placed his penis on the vagina of the deceased girl consequent to which E
she cried. This act of the Petitioner satisfies all relevant ingredients of
Section 376 as it existed at the relevant time. The only dispute that
remains is whether the Petitioner committed peno-vaginal penetration
or not. However, the medical evidence shows that vaginal intercourse
had been committed with X and that there was a contusion on the F
petitioner’s private part. Relevant portions of the post-mortem of X as
deposed by PW-46 are reproduced below:
“… The anti-mortem injuries that had been caused on the
body are:
XXX G
4) A contusion of 2 x 1 cm x 0.5 cm on the inner lower aspect
of Vagina and the inner edge of uterus. Hymen was in tact.
5) When anus was examined, it was found to be bigger in
size, 3 cm wide.”
H
1110 SUPREME COURT REPORTS [2019] 18 S.C.R.
A 52. Furthermore, following the orders of Magistrate on 04.11.2010,
Dr. Jeyasingh examined Manoharan and observed an injury on his penis
in his report (Ex.P.56) as:
“A dark colour contusion noted over proximal part of glands
penis around urethral orifice.”
B 53. It is evident from the deposition of PW-46 that the vagina of X
was penetrated. Also, Dr. Jeyasingh (PW-46), who conducted the autopsy
on the body of X had stated in his final opinion (Ex.P.50):
“The deceased would appear to have died of DROWNING.
Injuries noted on the vagina and anus due to forcible sexual
C assault.”
54. Furthermore, the evidence of his pubic hair found in the girl’s
underwear coupled with DNA Report that those were his hair belies his
plea of not having committed the ghastly crime. The DNA Report, as
deposed by Mrs. Lakshmi Balasubramanian (PW-49), affirms the pubic
D hair found in the underwear of X to be that of the petitioner. Relevant
portion of the statement of PW-49, delineating the DNA Report reads
as follows:
“Conclusion: From the DNA typing results of the above
samples, it is found that the pubic hair in item [8] belongs to
E a human male individual and is that of alleged accused -2
Manoharan. The report DNA 220/2010 is given and signed
by me. The said report with four annexures is marked as
Ex.P.48B.”
55. Considering the final opinion of Dr. Jeyasingh stating that the
girl was subjected to sexual assault; injury on the penis of petitioner;
F
recovery of dead body of X without underwear; recovery of underwear
from the Maruti Van; father of X recognising the underwear; finding
hair on the recovered underwear and matching of DNA of hair with that
of Manoharan, we are of the view that even in absence of the
confessional statement of the petitioner, it is established the petitioner
G committed offence under Section 376 IPC. The retraction dated
25.07.2012 may merely eclipse some part of the inculpatory evidence
but cannot be construed to render the entire evidence exculpatory. Hence,
we do not find any substance in the contention of Mr. Luthra and are of
the view that the petitioner is justly convicted for offence under Section
376 IPC.
H
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1111
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
Erroneous reliance on POCSO A
56. It was then urged that this Court ought not to have relied on a
recent amendment to the Protection of Children from Sexual Offences
(POCSO) Act, 2012 to justify death penalty, as the new law was non-
existent on the date of occurrence and hence cannot be applied
retrospectively in derogation to Article 20 of the Constitution. B
57. Although the plea is attractive at first glance, it must be noted
that the Petitioner has not been convicted or sentenced under the POCSO
Act. Instead, only a passing reference was made to pinpoint whether
the present case was rarest of the rare and whether it would shock the
conscience of the society. It has been noted by this Court in Macchi C
Singh v. State of Punjab16 and various other judgments that in order to
uphold the guarantee under Article 21 and to reduce arbitrariness caused
by discretion of judges in sentencing, it should be the opinion of the
society and not the personal opinion of the judge which should be
considered whilst awarding sentence of death. Towards the same, a
change in law during pendency of the case is an apt indicator of societal D
opinion as legislated by elected representatives. It is not the case here
that Petitioner has not been convicted of an offence otherwise not
punishable with death.
Sentencing
E
58. Lastly, Mr. Luthra impassionedly urged that this is not a fit
case for award of death penalty, especially when, the death penalty has
been confirmed only by way of 2:1 split decision. Relying on the minority
opinion of Thomas J. in Suthenraraja v. State,17 he vehemently argued
that in a case where one of the Hon’ble Judges did not deem it appropriate
to award death penalty, that in itself ought to be a sufficient ground to F
commute death sentence in Review. He also urged this to be a case of
‘residual doubt’, as evolved in Ravishankar v. State of Madhya
Pradesh18, which is also a mitigating circumstance to be taken note of
by the Court whilst considering whether the case falls in the category of
“rarest of rare cases”. He further argued that neither the High Court or G
this Court gave due weightage to mitigating circumstances such as:
16 AIR 1983 SC 957.
17 (1999) 9 SCC 323.
18 2019 SCC OnLine SC 1290
H
1112 SUPREME COURT REPORTS [2019] 18 S.C.R.
A (i) Lack of adequate opportunity to place on record material/
evidence of mitigating circumstances.
(ii) Young age (less than 30 years) of petitioner, and aged parents.
(iii) Absence of any previous criminal history.
B (iv) Backward socio-economic background.
(v) Death ought not to be awarded in cases of circumstantial
evidence.
59. At this juncture, it is necessary to highlight that the contention
of Mr. Luthra urging that death ought not to be awarded in case of a
C single dissent, notwithstanding the opinion of the majority is unsupported
in view of more than one decisions of this Court. In Devender Pal
Singh v. State of NCT of Delhi19 and also in Krishna Mochi v. State of
Bihar20, a concurrent Bench had refused to review the death sentence
which had earlier been upheld in appeal by two out of three judges of
D this Court. The reliance on Suthendraraja (supra) itself is erroneous
for the proposition relied upon was delivered in a minority opinion, which
was unsupported both by the order of the Court and also was disagreed
with by Quadri J., who noted:
“The ambit of Rule XL(1) of the Supreme Court Rules which
provides grounds for review, as interpreted by this Court in
E
P.N. Eswara Iyer v. Registrar, Supreme Court of India [(1980)
4 SCC 680] vis-à-vis criminal proceedings, is not confined to
“an error apparent on the face of the record”. Even so by the
process of interpretation it cannot be stretched to embrace
the premise indicated by my learned brother as a ground for
F review. That apart there are two difficulties in the way. The
first is that the acceptance of the said proposition would result
in equating the opinion of the majority to a ground analogous
to “an error apparent on the face of the record” and secondly
in a Bench of three Judges or of greater strength if a learned
Judge is not inclined to confirm the death sentence imposed
G
on a convict, the majority will be precluded from confirming
the death sentence as that per se would become open to review.
19 (2003) 2 SCC 501.
H 20 (2003) 2 SCC 501.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1113
HALL POLICE STATION, COIMBATORE [SURYA KANT, J.]
60. Further, even sans the aforesaid decisions, we are not inclined A
to accept such a reasoning for it is contrary to the established
jurisprudence of precedents and interpretation of verdicts with multiple
opinions. It is settled in law that dissenting opinions have little precedential
value and that there is no difference in operation between decisions
rendered unanimously or those tendered by majority, albeit with minority
B
dissenting views.
61. Although Mr. Luthra’s contention that the petitioner has not
received adequate opportunity to place material regarding his
circumstances is unsubstantiated, we have nevertheless re-considered
sentencing. We have re-visited the mitigating circumstances against
aggravating circumstances, as well as a report commissioned by this C
Court during the course of appeal and submitted by the jail superintendent
which reveals that the conduct of the Petitioner is merely satisfactory
and he has not undertaken any study or anything else to show any signs
of reformation.
62. It has been made clear in the preceding parts of this judgment D
that the prosecution case has been established through numerous
evidences in addition to there being a clear confession, which proves the
Petitioner’s guilt beyond any residual doubt. Conflicting versions have
been deposed by the Petitioner and the defence witnesses, and no
explanation to discharge the onus under Section 106 has been provided. E
Hence, it is not a case fit for application of the theory of “residual doubt”
as noted in Ravishankar (supra). Accordingly, even the contention that
death ought not to be awarded considering that the present case is one
involving circumstantial evidence is unfounded. It is no longer res integra
that there can be no hard rule of not awarding death in cases based on
circumstantial evidence owing to recent developments in medical science F
and the possibility of abuse by seasoned criminals.
63. Furthermore, there is nothing to support the characterisation
of the accused as being a helpless, illiterate young adult who is a victim
of his socio-economic circumstances. Far from being so, it is clear through
the version of events that the accused had the presence of mind to craft G
his own defence and attempt to retract his confession through an
elaborately written eleven page letter addressed to the Magistrate and
had further received adequate legal representation.
64. Mr. Luthra’s reliance on the retraction letter to contend that in
so far as the statement shows that he stopped the co-accused from H
1114 SUPREME COURT REPORTS [2019] 18 S.C.R.
A committing rape, is evident of the fact that he has remorse which entitles
him to commutation, if not acquittal, is misplaced. As noted earlier, the
retraction was extremely belated and only a defence to shield himself.
Further, medical evidence has proved that rape was committed on the
deceased girl. It is hence factually incorrect to state that the Petitioner
prevented the co-accused from raping the girl and is nothing more than
B
a belated lie at the end of the trial. Hence, the exculpatory parts ought to
be excluded per Nishi Kant Jha v. State of Bihar21.
65. Even observed devoid of any aggravating circumstances, mere
young age and presence of aged parents cannot be grounds for
commutation. One may view that such young age poses a continuous
C
burden on the State and presents a longer risk to society, hence warranting
more serious intervention by Courts. Similarly, just because the now
deceased co-accused Mohanakrishnan was the mastermind whose
offence was comparatively more egregious, we cannot commute the
otherwise barbarically shocking offences of the petitioner. We are also
D not inclined to give leeway of the lack of criminal record, considering
that the current crime was not just one offence, but comprised of multiple
offences over the series of many hours.
66. Even if the cases involving confession merit some leniency
and compassion, however, as was earlier noted in our majority opinion,
E the attempted retraction of the statement shows how the petitioner was
in fact remorseless. Such belated retractions further lay rise to the fear
that any remorse or repentance being shown by the petitioner now may
be temporary and that he can relapse to his old ways. Irrespective of the
underlying reasons behind such retraction, whether it be the fear of death
or feeling that he was not getting any benefit of his earlier confession,
F
but the possibility of recidivism has only been heightened and we can no
longer look at the initial confession in a vacuum.
67. Rather, the present case is essentially one where two accused
misused societal trust to hold as captive two innocent school-going
children, one of whom was brutally raped and sodomised, and thereupon
G
administered poison and finally, drowned by throwing them into a canal.
It was not in the spur of the moment or a crime of passion; but craftily
planned, meticulously executed and with multiple opportunities to cease
and desist. We are of the view that the present offence(s) of the Petitioner
H
21 1969 SCC (1) 347.
MANOHARAN v. STATE BY INSPECTOR OF POLICE, VARIETY 1115
HALL POLICE STATION, COIMBATORE [SANJIV KHANNA, J.]
are so grave as to shock the conscience of this Court and of society and A
would without doubt amount to rarest of the rare.
68. Hence, we find that there exist no grounds to review our
judgment upholding conviction and death penalty. The review petitions
are accordingly dismissed.
B
ORDER
SANJIV KHANNA, J.
I entirely agree and concur with the reasons given by my brother C
Surya Kant, J in dismissing the review petitions upholding the conviction
of Manoharan under Sections 302, 376(2)(f) and (g) and 201 of the
Indian Penal Code. On the question of sentence, I do not see any good
ground and reasons to review my observations and findings in the minority
judgment. Accordingly, the review petitions are dismissed.
D
Bibhuti Bhushan Bose Review Petitions dismissed.
E
F
G
H
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