ISHWARI LAL YADAVversusSTATE OF CHHATTISGARH

                        [2019] 13 S.C.R. 893                            893


                      ISHWARI LAL YADAV                                 A
                                 v.
                   STATE OF CHHATTISGARH
             (Criminal Appeal Nos.1416-1417 of 2017)
                        OCTOBER 03, 2019                                B
             [R. F. NARIMAN, R. SUBHASH REDDY
                     AND SURYA KANT, JJ.]
       Penal Code, 1860: ss.364/34 r/w. s.120B, ss.302/34 r/w.
s.120B and s.201 – Gruesome murder of small boy as a human
sacrifice – Prosecution case was that a child (boy) was found missing   C
from his house – When his parents were searching for him, they
noticed loud music being played in the house of appellants – They
entered the house along with other village people and found freshly
dug mound of earth – Appellants-main accused who claimed to be
“tantriks” admitted that they killed the boy with the help of other     D
co-accused and buried him to attain “siddhi” and begged for mercy
– On the basis of disclosure statements of accused, recoveries of
certain incriminating articles were made – Trial court convicted all
the accused under ss.364/34 r/w. s.120B, ss.302/34 and s.201 and
awarded death sentence – High Court confirmed the death sentence
of the two main accused and modified the sentence of other accused      E
to life imprisonment – On appeal, held: It was consistently, deposed
by the independent witnesses that when they entered the house of
the main accused, they had confessed that they had committed
murder of the missing child for the purpose of sacrifice – There was
nothing on record to show that such confessions were caused by
                                                                        F
inducement, threat or promise – When such confessions were
corroborated by other evidence on record, the trial court as well as
the High Court, rightly relied on such confessions – As regards the
charge of kidnapping and conspiracy, there was no acceptable
evidence on record – As far as co-accused were concerned other
than the main accused, there was no consistency of the persons          G
named by the witnesses in the house of main accused, when they all
entered their house – In absence of any consistent definite evidence
regarding presence of all other accused, along with the main accused
and further when the prosecution failed to prove either the common
intention or the conspiracy on their part along with the main
                                                                        H
                                893
894            SUPREME COURT REPORTS                       [2019] 13 S.C.R.


A     accused, the case of the prosecution cannot be accepted and as
      such co-accused are entitled for the benefit of doubt – Prosecution
      proved the guilt of the main accused for offence under s.302 r/w
      s.34, however, their conviction under ss.364/34 r/w. s.120B is set
      aside.
B           Evidence Act, 1872: s.106 – Applicability of – Held: As regards
      the applicability of s.106 of the Evidence Act, it was proved by
      cogent evidence that the body of the missing boy was found in the
      house of the main accused – By applying the provision under s.106,
      burden was on the accused to explain the fact within the knowledge
      of them how the body of the boy came to be buried in their house –
C     Penal Code, 1860.
             Sentence/Sentencing: Death sentence – Punishment for
      murder – It is clearly well settled that normal punishment for the
      offence under s.302 IPC is life imprisonment but in a case where
      incident is of “rarest of rare cases” death sentence is to be imposed
D     – It is equally well settled that only special facts and circumstances
      will warrant passing of death sentence and a just balance has to be
      struck between aggravating and mitigating circumstances, before
      the option is exercised – To come to conclusion in each case
      aggravating and mitigating circumstances are to be considered –
      Further factors like, age of the accused, possibility of reformation,
E     gravity of the offence etc. are also to be kept in mind – In this case,
      evidence on record showed that the two main accused, committed
      the murder of the two year old child as a sacrifice to the God –
      They had three minor children at that time – Inspite of the same,
      they committed the murder of two year old child brutally – The head
F     of the helpless child was severed, his tongue and cheeks were also
      cut – Having regard to age of the accused, they were not possessed
      of the basic humanness, they completely lacked the psyche or mindset
      which can be amenable for any reformation – It was a planned
      murder committed by the two appellants – Appellants who were the
      main accused were also convicted on an earlier occasion for similar
G     murder of a 6 year old girl – Such conviction for similar offence
      can be considered as aggravating factor – This is a case of “rarest
      of rare cases” where death sentence imposed by the trial court was
      rightly confirmed by the High Court – Penal Code, 1860 – Crime
      against children.
H
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                       895


      Disposing of the appeals, the Court                             A
      HELD: 1. All the persons who joined PW-3 and PW-5, the
parents of the deceased child stated in one voice, that when they
entered the house of the main accused, they found some wet
area and some puja articles. They noticed fresh mounds of earth.
When they removed the same, they found the body of the                B
deceased child in two parts. All the witnesses consistently stated
that the body was in two parts, its cheeks were cut and tongue
was missing. It was consistently, deposed by the independent
witnesses that when they entered the house of the main accused,
they had confessed that they had committed murder of the
deceased child for the purpose of sacrifice. There was nothing        C
on record to show that such confessions were caused by
inducement, threat or promise. When such confessions were
corroborated by other evidence on record, the trial court as well
as the High Court, rightly relied on such confessions. From the
evidence, it was proved that the place where the body of deceased     D
boy was traced belonged to the two main accused and in absence
of any explanation from their side, there was no error committed
by the trial court in accepting such evidence. [Paras 14, 16][905-
H; 906-A-B]
      2. To prove the charge of kidnapping and conspiracy, there      E
was no acceptable evidence on record. In absence of any
corroborative evidence for kidnapping of the deceased boy by
the co-accused, the evidence on record cannot be accepted. Even
to prove the common intention to attract the provision under
Section 34, IPC, it requires a pre-arranged plan and prior concert.
Therefore, there must be prior meeting of minds. The common           F
intention must exist prior to the commission of the act in a point
of time. The burden lies on the prosecution to prove that
participation of more than one person for commission of criminal
act was done in furtherance of common intention. The common
intention stood proved between the two main accused but at the        G
same time there was no acceptable evidence against all others to
prove their guilt that they have committed the offence with the
common intention. Prosecution failed to prove the common
intention of all other appellants than the main accused, either to
kidnap or to murder the deceased child on the day of occurrence.
                                                                      H
896            SUPREME COURT REPORTS                    [2019] 13 S.C.R.


A     The evidence on record showed that all other accused were
      disciples of self-claimed gurumata, main accused no.2 and they
      were regularly visiting her house for offering fruits and flowers.
      There was no consistency of the persons named by the witnesses
      in the house of main accused, when they all entered their house.
      In absence of any consistent definite evidence regarding presence
B
      of all other accused, along with the main accused and further when
      the prosecution failed to prove either the common intention or
      the conspiracy on their part along with the main accused, the
      case of the prosecution cannot be accepted as such they are
      entitled for the benefit of doubt. In view of the evidence on record
C     the prosecution proved the guilt of the main accused for the
      offence under Section 302 read with Section 34 of the IPC.
      [Para 17][906-C-G; 907-B-C]
            3. It is proved by cogent evidence that the body of the
      missing boy was found in the house of the main accused. By
D     applying the provision under Section 106 of the Indian Evidence
      Act definitely, it is the burden of the accused to explain the fact
      within the knowledge of them how the body of the boy came to be
      buried in their house. [Para 19][908-B-C]
             4. It is clearly well settled that normal punishment for the
E     offence under Section 302 IPC is life imprisonment but in a case
      where incident is of “rarest of rare cases” death sentence is to
      be imposed. Only special facts and circumstances will warrant
      passing of death sentence and a just balance has to be struck
      between aggravating and mitigating circumstances, before the
      option is exercised. In a “rarest of rare case” capital punishment
F     is to be imposed. To come to conclusion in each case aggravating
      and mitigating circumstances are to be considered. Further factors
      like, age of the accused, possibility of reformation, gravity of the
      offence etc. are also to be kept in mind. In this case, the main
      accused, committed the murder of the two year old child boy as a
G     sacrifice to the God. They had three minor children at that time.
      Inspite of the same, they committed the murder of the deceased,
      a child of two years of age brutally. The head of the helpless child
      was severed, his tongue and cheeks were also cut. Having regard
      to age of the accused, they were not possessed of the basic
      humanness, they completely lacked the psyche or mindset which
H
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                       897


can be amenable for any reformation. It is a planned murder           A
committed by the two appellants. The appellants who are the main
accused were also convicted on an earlier occasion for the offence
under Section 302/34 and Section 201 of IPC for similar murder
of a 6 year old girl for which they were convicted. Such conviction
for similar offence can be considered as aggravating factor.
                                                                      B
[Paras 22, 23][910-F-H; 911-A-D]
      Sushil Murmu v. State of Jharkhand (2004) 2 SCC 338:
      [2003] 6 Suppl. SCR 702; Bachan Singh v. State of
      Punjab (1980) 2 SCC 684; Machhi Singh v. State of
      Punjab (1983) 3 SCC 470 : [1983] 3 SCR 413 – relied
      on.                                                             C

      Aghnoo Nagesia v. State of Bihar [1966] 1 SCR 134;
      Sahadevan & Anr. v. State of Tamil Nadu (2012) 6 SCC
      403 : [2012] 4 SCR 366; Shambu Nath Mehra v. The
      State of Ajmer [1956] SCR 199; Ronny v. State of
      Maharashtra (1998) 3 SCC 625 : [1998] 2 SCR 162 –               D
      held inapplicable.
      Firozuddin Basheeruddin & Ors. v. State of Kerala
      (2001) 7 SCC 596 – referred to
                          Case Law Reference                          E
(2001) 7 SCC 596              referred to             Para 19
[1966] 1 SCR 134              held inapplicable       Para 18
[2012] 4 SCR 366              held inapplicable       Para 18
[1956] SCR 199                held inapplicable       Para 19         F
[2003] 6 Suppl. SCR 702       relied on               Para 21
(1980) 2 SCC 684              relied on               Para 21
[1983] 3 SCR 413              relied on               Para 21
[1998] 2 SCR 162              held inapplicable       Para 22         G
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1416-1417 of 2017.
     From the Judgment and Order dated 01.12.2016 of the High Court
of Chattisgarh at Bilaspur in Criminal Reference No. 1 of 2014 and
Criminal Appeal No. 511 of 2014.                                      H
898             SUPREME COURT REPORTS                       [2019] 13 S.C.R.


A                                       With
              Criminal Appeal Nos. 300-301/2018, 1418-1419/2017, 298-299/
      2018.
              Birendra Kumar Mishra, Adv. (A.C.)
B            Siddhartha Dave, Sr. Adv., Ms. Liz Mathew, Ms. Ninni Susan
      Thomas, Yash S. Vijay, Ms. Jemtiben AO., Ms. Saumya Gupta, Siddhant
      Krishna Dave, Kabir Dixit, Rajeev Kumar Bansal, M. P. Singh, Akshay
      K. Ghai, Sumeer Sodhi, Ashish Tiwari, Ms. Ridhima Juneja, Ms. Suditi
      Batra, Advs. for the appearing parties.
C             The Judgment of the Court was delivered by
              R. SUBHASH REDDY, J.
            1. All these appeals are directed against the common judgment of
      the High Court of Chhattisgarh at Bilaspur dated 01.12.2016 passed in
D     Criminal Reference No.1 of 2014 and Criminal Appeal No.511 of 2014,
      as such they are disposed of by this common judgment and order.
             2. All the appellants were charged for offence under Sections
      364/34 read with 120B; 302/34 read with 120B and 201, Indian Penal
      Code (IPC). Vide judgment dated 27.03.2014 passed in Sessions Trial
E     No.61 of 2011, the learned Sessions Judge, Durg, has convicted and
      sentenced the appellants. For the offence under Sections 364/34 read
      with 120B, IPC they were convicted and sentenced for imprisonment
      for life and fine of Rs.5000/- each, in default of payment of fine, to
      undergo further rigorous imprisonment for four months. For the offence
F     under Sections 302/34 read with 120B, IPC death penalty was imposed
      with a fine of Rs.5000/- each, in default of which, they were sentenced
      to undergo further rigorous imprisonment for four months. For the offence
      under Section 201, IPC, rigorous imprisonment for five years and a fine
      of Rs.2000/- each was imposed, in default of payment of fine, they were
      sentenced to undergo further rigorous imprisonment for two months.
G
            3. In view of death penalty imposed on the appellants, a reference
      was made to the High Court, as required under Section 366 of Cr.P.C.
      and further appellants-accused have filed Criminal Appeal No.511 of
      2014 before the High Court. By a common judgment dated 01.12.2016,
      the High Court has confirmed death sentence on the two main accused,
H
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                               899
                [R. SUBHASH REDDY, J.]

namely, Ishwari Lal Yadav and Smt. Kiran Bai and modified the sentence        A
of other appellants to one of imprisonment for life without any entitlement
of remission or parole.
      4. The deceased, a small two year old boy, by name, Chirag Rajput
was the son of Poshan Singh (PW-3) and Savitri Bai (PW-5). PW-5
works as a domestic help whereas Poshan Singh (PW-3) was working              B
in Bhilai. Smt. Vandana Rajput (PW-21) is the sister of Savitri Bai
(PW-5) and was at home along with the minor child – Chirag – on
fateful day, i.e., 23.11.2010. When Vandana Rajput (PW-21) and
deceased boy Chirag Rajput were at home on 23.11.2010, Chirag went
outside the house to play while she was inside. After sometime when
she went out, she could not find Chirag and Chirag was missing. She           C
immediately rang her sister and brother-in-law, i.e., PW-5 and 3
respectively who came back to their house.
       5. It is the case of the prosecution that the two main accused,
Smt. Kiran Bai and her husband Ishwari Lal Yadav believed in tantrism.
Smt. Kiran Bai wanted to attain siddhi. She was also proclaimed as            D
‘gurumata’. To propitiate the God, she asked her husband and disciples
who are the other co-accused along with them, to get a small child for
human sacrifice. The main accused were neighbours to PW-3 and 5. It
is alleged that for the purpose of sacrifice to God, the child Chirag was
kidnapped and murdered in a gruesome manner, inside the house of              E
main accused Kiran Bai and Ishwari Lal Yadav. Thereafter he was
buried in the precincts of the house. To avoid sound of cries, music
system was played loudly.
       6. After the information from Vandana Rajput (PW-21) to her
sister Savitri Bai (PW-5) and brother-in-law Poshan Singh (PW-3), all         F
started searching for Chirag. When the parents of the child, family
members and other people of the neighbourhood were searching for
missing boy, they became suspicious from the loud music, emanating
from the house of two main accused. Thereupon, some people have
entered the house of Kiran Bai and Ishwari Lal Yadav and found five
mounds of freshly dug earth. It is alleged that there was also a leaf bowl    G
(Dona), one small bowl (Katori), one small round metal pot (Lota), a
trident (Trishul), idols and pictures of Gods and other items of puja
were lying there. There was blood on some of these items. It is alleged
that when the crowd asked the accused what had happened, Smt. Kiran
Bai and Ishwari Lal Yadav confessed that they had sacrificed Chirag           H
900             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     with the help of other co-accused and begged for mercy. Immediately
      thereafter, the crowd started digging the freshly dug earth and body of
      Chirag was taken out. Thereafter police came to the site and report was
      lodged. The body of Chirag was sent for post-mortem. All the accused
      were questioned on which they made some disclosure statements. On
      the basis of such disclosure statements, recoveries of certain incriminating
B
      articles were made. After completing the investigation, the police filed
      final report under Section 173 Cr.P.C. against all the appellants and one
      other accused by name Krishna Tambi. However, as he was absconding,
      his trial was separated. All the accused have denied the guilt and claimed
      trial. They were tried for the offences as referred above before the
C     learned Sessions Judge, Durg and they were convicted and sentenced
      vide judgment dated 27.03.2014. All the appellants were imposed with
      the penalty of death. Reference was made to the High Court under
      Section 366 of the Cr.P.C.
            7. Appellants have also challenged their conviction and sentence
D     imposed, by way of criminal appeal. Both were considered by a common
      judgment. While confirming the conviction under Section 302/34 read
      with Section 120B, IPC and sentence of death penalty on the main
      accused, namely, Ishwari Lal Yadav and Kiran Bai, the High Court has
      modified the punishment of other accused to that of imprisonment for
      life.
E
            8. We have heard Sri Siddhartha Dave, learned senior counsel
      appearing for the appellants in Crl. Appeal Nos.1416-1417 of 2017 and
      1418-1419 of 2017; Sri Birendra Kumar Mishra, learned counsel for the
      appellants in Crl. Appeal Nos.300-301 of 2018; Sri Rajeev Kumar Bansal,
      learned counsel appearing for the appellants in Crl. Appeal Nos.298-299
F     of 2018 and Sri Sumeer Sodhi, learned counsel appearing for the
      respondent-State of Chhattisgarh.
              9. In these appeals, mainly it is pleaded by the learned senior
      counsel Sri Siddhartha Dave appearing for the appellants that except
      the alleged confessional statement, there is no other evidence to prove
G     the guilt of accused for kidnapping and murder of deceased boy – Chirag.
      It is further submitted that all the findings recorded by the trial court, as
      confirmed by the High Court, for conviction of the appellants rest upon
      confessional statement of the appellants which is barred under Sections
      24, 25 and 26 of the Indian Evidence Act, 1872. It is submitted that there
      are material contradictions in the depositions of witnesses about the arrival
H     of police to the place of occurrence of the offence and on the alleged
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                                 901
                [R. SUBHASH REDDY, J.]

extra-judicial confessions, inspite of the same, courts below have accepted     A
such evidence on record and passed the impugned judgments. It is
submitted that, as the body of the deceased was not found in exclusive
possession of the main accused, courts below have committed an error
in taking assistance of Section 106 of the Indian Evidence Act. It is
submitted that body was discovered only after large crowd had gathered.
Further, it is submitted that the discovery of skeleton of other person and     B
also the theory of bad character, that is, appellants were black magic
practitioners, is barred under Sections 14, 15 and 54 of the Indian Evidence
Act. It is further submitted that the prosecution has not proved any
ingredient under Section 120B, IPC to prove conspiracy among the
appellants for committing the alleged offence.                                  C
       10. It is the contention of the learned counsel appearing for the
appellants that there is absolutely no evidence on record to prove that
there was a common intention on the part of such appellants to commit
the offence of kidnapping and murder of the deceased child. So far as
the appellants other than the main accused, it is submitted that the findings
                                                                                D
of the courts below are based on the alleged confessional statements
and in the absence of any corroboration, the courts below have committed
an error in convicting the appellants with the aid of Sections 34 and
120B, IPC. It is also the contention, of the learned counsel for the
appellants that there is no reason or justification for imposing the death
penalty on Ishwari Lal Yadav and Kiran Bai, while modifying the                 E
punishment to that of life imprisonment to all other accused. It is also
submitted that the incident in question cannot be considered as the “rarest
of rare cases” so as to impose the capital punishment. The learned
counsel appearing for the appellants, in support of his arguments, has
relied on the following cases :
                                                                                F
       1. Aghnoo Nagesia v. State of Bihar1
       2. Sahadevan & Anr. v. State of Tamil Nadu2
       3. Shambu Nath Mehra v. The State of Ajmer3
       4. Firozuddin Basheeruddin & Ors. v. State of Kerala4
                                                                                G
       5. Ronny v. State of Maharashtra5
1
  1966 (1) SCR 134 = AIR 1966 SC 119
2
  (2012) 6 SCC 403
3
  1956 SCR 199
4
  (2001) 7 SCC 596
5
  (1998) 3 SCC 625                                                              H
902                SUPREME COURT REPORTS                        [2019] 13 S.C.R.


A            11. On the other hand, Sri Sumeer Sodhi, learned counsel appearing
      for the State of Chhattisgarh, has submitted that the case relates to a
      gruesome murder of small two year old boy as a human sacrifice and
      from the oral evidence on record, the prosecution has proved the guilt of
      the accused beyond reasonable doubt, as such there are no grounds to
      interfere with the impugned judgment. It is submitted that, all the appellants
B
      were present in the house of the main accused and the fact that the
      body of the deceased was also recovered from the house of the main
      accused, is proved from the oral evidence of PWs-2, 3, 5, 6, 9, 10, 12, 13
      and 16. It is further submitted that the contradictions referred to by the
      counsel for the appellants are minor and they may not affect well reasoned
C     findings and conclusions arrived by the trial court, as confirmed by the
      High Court. The learned State Counsel has relied on the judgment of
      this Court in the case of Sushil Murmu v. State of Jharkhand6 to
      substantiate his arguments.
            12. Having heard the learned counsels we have carefully perused
D     the impugned judgments and also the material on record.
             13. To prove the guilt of the accused, prosecution has examined
      PW 1 to PW 22. When it was reported by Vandana Rajput (PW-21),
      who is the sister of Savitri Bai (PW-5), Savitri Bai and Poshan Singh
      (PW-3) came back to their house. In the evidence of Poshan Singh
E     (PW-3) who is the father of the deceased child, he has stated that the
      main accused Ishwari Lal Yadav and Smt. Kiran Bai are his neighbours
      and he knows them. He also knows all other accused because they
      regularly visit but he could not tell their names. He further stated that
      during their search for the missing Chirag along with his wife Smt. Kiran
      Bai and others, they heard loud music emanating from the house of the
F     main accused, which gave suspicion in the minds of the people in the
      locality, therefore, they entered the house of Ishwari Lal and Kiran Bai
      and noticed that the ground around the place of worship was wet and a
      knife was also lying at that place. On digging up the wet place, body of
      Chirag was found. The body was in two parts and head had been severed
G     from the neck. Both the cheeks had been cut. At the place of worship,
      pictures of Gods have been placed. At the same time, he stated, he has
      come to know the names of other accused after occurrence of the
      incident. In similar lines is also the oral evidence of PW-5 who is the
      mother of the deceased child. In her deposition she has stated that she
      6
H         (2004) 2 SCC 338
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                                903
                [R. SUBHASH REDDY, J.]

works as a domestic help. On the day of occurrence, when Vandana               A
Rajput (PW-21) has informed the mother of the deceased child, PW-5
Savitri Bai has come back to the house and it is stated that she along
with her husband and others, were searching for the missing boy, and on
hearing the loud music emanating from the house of Ishwari Lal Yadav
they entered the house. She has further stated that she knows accused
                                                                               B
Kiran Bai and Ishwari Lal Yadav, Nihaluddin @ Khanbaba, Hemant
Sahu and Sukhdev. She has also stated that all other accused were
regularly going to the house of Ishwari Lal Yadav and Kiran Bai. She
too in clear terms has stated that when they entered the house of Ishwari
Lal Yadav and Kiran Bai, they admitted the guilt of committing murder
of Chirag in the form of human sacrifice and begged for mercy. On              C
suspicion from the members of the group, the place of worship was dug
and on digging, the body of Chirag was found. His head was separated
from the body, both the cheeks had deep cuts and tongue was cut off.
On seeing her child with such condition, she became unconscious. In
her deposition she has specifically stated that police had not come with
                                                                               D
them inside the house of Ishwari Lal Yadav, they came later. The brother
of Poshan Singh, Sri Suraj Singh Rajput (PW-2) was also examined. In
his deposition he has stated that he knows all the accused because earlier
he was residing in Ruabandha area where all accused used to reside. In
his deposition he has stated that on call from his brother Poshan Singh
(PW-3) stating that Chirag was missing, he went to the house of his            E
brother and along with him the sister-in-law and other persons of the
locality searched for Chirag. Thereafter they went to police station, lodged
a report and returned to their locality and on hearing loud music in the
house of the tantriks – Ishwari Lal Yadav and Smt. Kiran Bai – and on
getting suspicion, they went inside the house along with others. He has
                                                                               F
also stated in his deposition that on questioning, Ishwari Lal Yadav
confessed that he has asked Hemant Sahu to kidnap Chirag for the
purpose of human sacrifice. Thereafter puja was done at the spot and
Chirag was sacrificed and buried there. He has further stated that at the
time of human sacrifice, wife of Ishwari Lal Yadav, i.e., Smt. Kiran Bai,
their three children and all other accused were present. Sri Ram Avtar         G
Gada is also a neighbour of accused Ishwari Lal Yadav and Kiran Bai
and Savitri Bai and Poshan Singh, he was examined as PW-6. In his
deposition, he has stated that the accused Ishwari Lal Yadav and Smt.
Kiran Bai were known tantriks and other accused were their followers.
On hearing the loud music, he went to the house of the main accused,
                                                                               H
904            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     along with others and on digging the puja area the body of Chirag was
      found which was in two parts – severed at the neck and both cheeks
      were cut. Sri Parasnath Bhuarya who was examined as PW-9 has stated
      that on the day of occurrence having come to know that Chirag was
      missing, they all were searching for Chirag and on hearing the loud music
      coming from the house of accused Ishwari Lal Yadav and Kiran Bai,
B
      they entered their house and he could recognise accused Ishwari Lal
      Yadav and since it was dark he could not recognise other accused. He
      too stated that when they questioned the accused, the accused Ishwari
      Lal Yadav and Kiran Bai confessed that they had sacrificed Chirag and
      begged for mercy. Corporator of the area – Rajendra Rajak was
C     examined as PW-10. In his deposition, he has stated that Chirag’s
      grandmother has come to his house and informed about the missing of
      her grandson Chirag. Thereafter he has given a suggestion that an
      announcement be got made from loudspeaker of the mosque. Thereafter
      the announcement was made. All the people of the locality were searching
      for Chirag. He too stated that the house of Poshan Singh (PW-3) adjoins
D
      the house of accused Ishwari Lal Yadav. In his deposition he has also
      stated that when the whereabouts of the child were not known even
      after the announcement was made and the main accused were
      continuously playing music, he along with other persons went inside the
      house of accused Ishwari Lal Yadav and Kiran Bai. In his deposition he
E     has also stated that the main accused have stated that Chirag had been
      sacrificed in pursuance of their tantrik activities and had been buried
      inside the house. At the same time he stated, he cannot identify the other
      accused but stated that some people were present there. The evidence
      of PW-12 – Dilip Thakur is also on similar lines stating that after hearing
      the announcement about the missing of Chirag he started searching for
F
      Chirag along with others. The evidence of PW-13 – Arvind Singh is also
      to the same effect. One Sri Shiv Kumar Rajak was examined as PW-
      16. In his deposition he has stated that after hearing the announcement
      made about the missing of Chirag, son of Poshan Singh, he joined others.
      After hearing loud music from the house of Ishwari Lal Yadav and Kiran
G     Bai he also entered along with others. He has further stated that after
      digging the puja area, body of Chirag was found which was in two
      parts. Some ash has been smeared on the head of Chirag and both the
      cheeks had been cut and tongue was missing. Only thereafter police
      was informed. He further stated that when accused Ishwari Lal Yadav
      was questioned, he confessed that he has asked Hemant Sahu to kidnap
H
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                               905
                [R. SUBHASH REDDY, J.]

the child and thereafter they had worshipped the child, put tilak, touched    A
the feet then sacrificed the child. He has also stated that on questioning,
the accused confessed that about six months earlier they had sacrificed
one girl child also.
       14. From the oral evidence on record of all the persons who have
joined the parents of the deceased child, i.e., Poshan Singh (PW-3) and       B
Savitri Bai (PW-5), it is clear that they have stated in one voice, that
when they entered the house of the main accused, they have found
some area which was wet and some puja articles were there. When
they have noticed fresh mounds of earth, they have removed the same
and found the body of the deceased child in two parts. All the witnesses
have consistently stated that the body was in two parts, its cheeks were      C
cut and tongue was missing.
       15. The first information with the police was recorded by PW-19
– Domar Singh Thakur. The constable who took the application for post
mortem was examined as PW-1. The doctor who conducted the post
mortem on the body of Chirag was Dr. Lal Mohammad was examined                D
as PW-14. One Patiram Bareth was examined as PW-11. He was the
Patwari of the area and in his statement he has clearly stated that the
house from which the body of the child was recovered belongs to Ishwari
Lal Yadav. PW-18 is the Assistant Sub Inspector who took accused
Ishwari Lal Yadav into custody and recorded his statement under Ex.P21.       E
The recovery of incriminating articles was disbelieved by the High Court.
From the evidence on record it is also clear that several independent
witnesses who were examined on behalf of the prosecution were in the
group of search along with parents of the deceased and they have entered
the house of the main accused on hearing the loud music. It is also
equally clear from the evidence that police have come to the scene of         F
occurrence only afterwards, when PW-10 – Corporator has informed
the police.
       16. From the above evidence on record, it is clear that the parents
of the deceased boy along with others were searching for the boy, on
hearing the loud music from the house of Ishwari Lal Yadav and Kiran          G
Bai, they got suspicious and entered the house. It is consistently, deposed
by the independent witnesses mentioned above, that when they entered
the house of the main accused, namely, Ishwari Lal Yadav and Kiran
Bai, they have confessed that they have committed murder of the
deceased child for the purpose of sacrifice. There is nothing on record       H
906             SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     to show that such confessions are caused by inducement, threat or
      promise. When such confessions are corroborated by other evidence on
      record, the trial court as well as the High Court, rightly relied on such
      confessions. From the evidence, it is proved that the place where the
      body of deceased Chirag was traced belongs to Ishwari Lal Yadav and
      Kiran Bai and in absence of any explanation from their side, there is no
B
      error committed by the trial court in accepting such evidence on record.
      It is true that the extra judicial confession is a weak piece of evidence,
      but at the same time if the same is corroborated by other evidence on
      record, same can be accepted.
             17. To prove the charge of kidnapping and conspiracy, there is no
C     acceptable evidence on record. In absence of any corroborative evidence
      for kidnapping of the deceased boy by Hemant Sahu and another, the
      evidence on record cannot be accepted. Even to prove the common
      intention to attract the provision under Section 34, IPC, it requires a pre-
      arranged plan and prior concert. Therefore, there must be prior meeting
D     of minds. The common intention must exist prior to the commission of
      the act in a point of time. The burden lies on the prosecution to prove
      that participation of more than one person for commission of criminal
      act was done in furtherance of common intention. If we closely analyse
      the evidence on record the common intention stands proved between
      Ishwari Lal Yadav and Kiran Bai who are main accused but at the same
E     time there is no acceptable evidence against all others to prove their
      guilt that they have committed the offence with the common intention.
      Prosecution has failed to prove the common intention of all other
      appellants than the main accused, namely, Ishwari Lal Yadav and Kiran
      Bai, either to kidnap or to murder the deceased child on the day of
F     occurrence. It is borne out from the evidence on record that all other
      accused were disciples of self-claimed gurumata, namely, Kiran Bai
      and they were regularly visiting the house of the main accused offering
      fruits and flowers. There is no consistency of the persons named by the
      witnesses in the house of Ishwari Lal Yadav and Kiran Bai, when they
      all entered their house. Even PW-5 Savitri Bai, in her deposition has
G     clearly stated that all other accused used to come regularly to the house
      of Ishwari Lal Yadav and Kiran Bai, along with the fruits and flowers.
      The father of the child PW-3 Poshan Singh, in cross-examination has
      stated that he knew the names of Ishwari Lal Yadav and Kiran Bai
      earlier and he has come to know the names of all other accused, after
H
     ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                                907
                [R. SUBHASH REDDY, J.]

the occurrence of the incident. PW-6 Ram Avtar Gada, also stated in            A
her deposition that the accused Ishwari Lal Yadav and Kiran Bai were
known tantriks and other accused were their followers. Further PW-9
Parasnath Bhuarya, in his deposition has stated that he entered the house
along with the others and he could only recognise Ishwari Lal Yadav and
as it was dark he could not recognise all others. In absence of any
                                                                               B
consistent definite evidence regarding presence of all other accused,
along with the main accused, namely, Ishwari Lal Yadav and Kiran Bai
and further when the prosecution has failed to prove either the common
intention or the conspiracy on their part along with the main accused, it
is difficult to accept the case of the prosecution as such they are entitled
for the benefit of doubt. In view of the evidence on record the prosecution    C
has proved the guilt of the main accused, namely, Ishwari Lal Yadav and
Kiran Bai for the offence under Section 302 read with Section 34 of the
IPC. The common intention is to be restricted only to the main accused
Ishwari Lal Yadav and Kiran Bai but same cannot be applied to others.
       18. Learned counsel for the appellants has relied on a judgment         D
of this Court in the case of Aghnoo Nagesia1 to buttress his contention
that the courts below have committed error in recording a finding of guilt
of the appellants based on confession. But same is a case where the
appellant therein was charged under Section 302 IPC for murdering his
aunt and others and there were no eye witnesses to the murder. The
principal evidence against the appellant was First Information Report          E
which contains a full confession of guilt by the appellant himself. The
said confession was made to a police officer and the same is not provable
having regard to Section 25 of the Indian Evidence Act. Further reliance
is also placed on a judgment of this Court in the case of Sahadevan2. In
the aforesaid judgment of two-Judge Bench of this Court it is held that        F
the extra judicial confession is a weak piece of evidence and court must
ensure that same inspires confidence and is corroborated by other
prosecution evidence. If the totality of oral evidence on record is
considered in the case on hand, it is consistent and inspires confidence
of the case of the prosecution to prove the guilt of the main accused.
We are of the view that the aforesaid judgments would not render any           G
assistance to support the case of the appellants.
       19. Learned counsel also relied on the judgment of this Court in
the case of Shambu Nath Mehra3. In the aforesaid judgment this Court
has held that in a criminal case burden of proof is on the prosecution and
                                                                               H
908             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     Section 106 is certainly not intended to relieve it of that duty. It is held
      that on the contrary, it is designed to meet certain exceptional cases in
      which it would be impossible, or at any rate disproportionately difficult,
      for the prosecution to establish facts which are “especially” within the
      knowledge of the accused and which he could prove without difficulty
      or inconvenience. In this case on hand it is proved by cogent evidence
B
      that the body of Chirag was found in the house of Ishwari Lal Yadav.
      By applying the provision under Section 106 of the Indian Evidence Act
      definitely it is the burden of the accused to explain the fact within the
      knowledge of them how the body of Chirag came to be buried in their
      house. The judgment relied on in the case of Shambu Nath Mehra3
C     also would not be helpful for the appellants. In the case of Firozuddin
      Basheeruddin4 this Court has discussed the ingredients which constitute
      criminal conspiracy within the meaning of Section 120B of the IPC. As
      we are of the view that the evidence on record is not sufficient to prove
      the guilt of the appellants under Section 120B of IPC, as such it is not
      necessary to elaborate any further.
D
             20. Vide impugned judgment, the High Court has confirmed the
      death sentence imposed on appellants Ishwari Lal Yadav and Kiran Bai.
      Learned counsel for the appellants relied on the judgment in the case of
      Ronny5 wherein this Court has held, in a case of multiple accused, where
      the culpability of each accused is not clear to examine whose case falls
E     within the “rarest of rare cases”, it would serve the ends of justice, if the
      capital punishment is commuted into life imprisonment. On the other
      hand, learned counsel appearing for the State of Chhattisgarh has
      submitted that the High Court has considered the aggravating and
      mitigating circumstances and confirmed the death sentence so far as
F     main accused, namely, Ishwari Lal Yadav and Kiran Bai are concerned
      and there are no grounds to modify the same. Learned counsel for the
      State also relied on judgment of this Court in the case of Sushil Murmu6.
      In the above said case in similar set of facts where killing of a nine year
      old boy as a sacrifice to the deity was dealt with, this Court has upheld
      the death sentence imposed on the appellant therein.
G
              21. It is clearly well settled that normal punishment for the offence
      under Section 302 IPC is life imprisonment but in a case where incident
      is of “rarest of rare cases” death sentence is to be imposed. It is equally
      well settled that only special facts and circumstances will warrant passing
      of death sentence and a just balance has to be struck between aggravating
H
        ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                             909
                   [R. SUBHASH REDDY, J.]

and mitigating circumstances, before the option is exercised. While            A
referring to the earlier cases in the case of Bachan Singh v. State of
Punjab7 and Machhi Singh v. State of Punjab8 further guidelines are
summarised in the judgment in the case of Sushil Murmu6. Paragraphs
15 and 16 of the judgment read as under :
         “15. The following guidelines which emerge from Bachan Singh          B
         case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be
         applied to the facts of each individual case where the question of
         imposition of death sentence arises: (Machhi Singh case [(1983)
         3 SCC 470 : 1983 SCC (Cri) 681] SCC p. 489, para 38)
         (i) The extreme penalty of death need not be inflicted except in      C
         gravest cases of extreme culpability.
         (ii) Before opting for the death penalty the circumstances of the
         “offender” also require to be taken into consideration along with
         the circumstances of the “crime”.
         (iii) Life imprisonment is the rule and death sentence is an          D
         exception. Death sentence must be imposed only when life
         imprisonment appears to be an altogether inadequate punishment
         having regard to the relevant circumstances of the crime, and
         provided, and only provided, the option to impose sentence of
         imprisonment for life cannot be conscientiously exercised having      E
         regard to the nature and circumstances of the crime and all the
         relevant circumstances.
         (iv) A balance sheet of aggravating and mitigating circumstances
         has to be drawn up and in doing so the mitigating circumstances
         have to be accorded full weightage and a just balance has to be       F
         struck between the aggravating and the mitigating circumstances
         before the option is exercised.
        16. In rarest of rare cases when the collective conscience of the
community is so shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their personal opinion
                                                                               G
as regards desirability or otherwise of retaining death penalty, death
sentence can be awarded. The community may entertain such sentiment
in the following circumstances:

7
    (1980) 2 SCC 684
8
    (1983) 3 SCC 470                                                           H
910             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A           (1) When the murder is committed in an extremely brutal,
            grotesque, diabolical, revolting or dastardly manner so as to arouse
            intense and extreme indignation of the community.
            (2) When the murder is committed for a motive which evinces
            total depravity and meanness e.g. murder by a hired assassin for
B           money or reward or a cold-blooded murder for gains of a person
            vis-à-vis whom the murderer is in a dominating position or in a
            position of trust, or murder is committed in the course of betrayal
            of the motherland.
            (3) When murder of a member of a Scheduled Caste or minority
C           community etc. is committed not for personal reasons but in
            circumstances which arouse social wrath, or in cases of “bride-
            burning” or “dowry deaths” or when murder is committed in order
            to remarry for the sake of extracting dowry once again or to
            marry another woman on account of infatuation.

D           (4) When the crime is enormous in proportion. For instance when
            multiple murders, say of all or almost all the members of a family
            or a large number of persons of a particular caste, community, or
            locality, are committed.
            (5) When the victim of the murder is an innocent child, or a helpless
E           woman or an old or infirm person or a person vis-à-vis whom the
            murderer is in a dominating position or a public figure generally
            loved and respected by the community.”
             22. It is clear from the above judgment that this Court has laid
      down the guidelines, which are to be considered, in a given case whether
      capital punishment should be imposed or not. There cannot be any hard
F
      and fast rule for balancing the aggravating and mitigating circumstances.
      Each case has to be decided on its own merits. In a “rarest of rare
      case” capital punishment is to be imposed. To come to conclusion in
      each case aggravating and mitigating circumstances are to be considered.
      Further factors like, age of the accused, possibility of reformation, gravity
G     of the offence etc. are also to be kept in mind.
             23. In this case it clear from the evidence on record, the main
      accused, namely, Ishwari Lal Yadav and Kiran Bai have committed the
      murder of the two year old child Chirag as a sacrifice to the God. It is to
      be noticed, they were having three minor children at that time. Inspite of
H     the same, they committed the murder of the deceased, a child of two
      ISHWARI LAL YADAV v. STATE OF CHHATTISGARH                               911
                 [R. SUBHASH REDDY, J.]

years of age brutally. The head of the helpless child was severed, his         A
tongue and cheeks were also cut. Having regard to age of the accused,
they were not possessed of the basic humanness, they completely lacked
the psyche or mindset which can be amenable for any reformation. It is
a planned murder committed by the aforesaid two appellants. The
appellants herein who are the main accused, namely, Ishwari Lal Yadav
                                                                               B
and Kiran Bai were also convicted on an earlier occasion for the offence
under Section 302/34 and Section 201 of IPC in Sessions Trial No.
98/2011 by the learned Sessions Judge, Durg, for similar murder of a 6
year old girl for which they were convicted and sentenced to death, but
such sentence was modified on appeal in Criminal Appeal No.1068 of
2014 by the High Court of Chhattisgarh at Bilaspur and they were               C
sentenced to undergo life imprisonment without any remission or parole.
On appeal to this Court, the order of the High Court is. Such conviction
for similar offence can be considered as aggravating factor. By following
the guidelines as mentioned in the case of Sushil Murmu6 we are of the
view that this is a case of “rarest of rare cases” where death sentence
                                                                               D
imposed by the trial court is rightly confirmed by the High Court. As the
case is proved beyond any reasonable doubt so far as the main accused
are concerned, the judgment relied on by the learned counsel for the
appellants in the case of Ronny5 also is not helpful to them.
      24. For the aforesaid reasons the appeals filed in Criminal Appeal
Nos.300-301 of 2018 and Criminal Appeal Nos.298-299 of 2018 are                E
allowed and conviction recorded and sentence imposed upon the
appellants therein is set aside. They shall be released forthwith if their
custody is not required for any other case. Criminal Appeal Nos.
1416-1417 of 2017 and Criminal Appeal Nos.1418-1419 of 2017 filed by
Ishwari Lal Yadav and Kiran Bai respectively are partly allowed, setting       F
aside the conviction recorded and sentence imposed for the offence
under Section 364/34 and 120B of the IPC. However, their conviction
under Section 302/34 and 201, IPC is confirmed, confirming the death
sentence imposed on them for the offence under Section 302/34 IPC.
The sentence imposed on them under Section 201 IPC is also confirmed.
                                                                               G

Devika Gujral                                           Appeals disposed of.




                                                                               H