LOCHAN SHRIVASversusTHE STATE OF CHHATTISGARH

                         [2021] 14 S.C.R. 809                               809


                         LOCHAN SHRIVAS                                     A
                                   v.
                 THE STATE OF CHHATTISGARH
               (Criminal Appeal Nos. 499-500 of 2018)
                        DECEMBER 14, 2021                                   B
           [L. NAGESWARA RAO, B.R. GAVAI AND
                  B. V. NAGARATHNA, JJ.]
       Penal Code 1860: ss.363, 366, 376(2)(i), 377, 201, 302 and
376A – Prosecution case was that on the fateful day, the minor daughter
                                                                            C
of complainant was found missing – They went in search for her but
she was not found anywhere – When they came back home, PW-3 told
them that appellant who was neighbour had said that if they would
allow him to conduct worship, he could find the child in an hour –
They agreed and after the worship, appellant informed them that the
child was tied and kept inside the sack in the bushes – PW-1 informed       D
police and on suspicion, appellant was interrogated and he confessed
his crime before police – Thereafter, sack was recovered from bushes
containing the blood soaked body of the victim girl – Trial court
convicted appellantfor offences punishable u/s363, 366, 376(2)(i), 377,
201, 302 and 376A and s.6 of Protection of Children from Sexual
                                                                            E
Offences Act, 2012 and passed death sentence for the offence
punishable u/s.302 – High Court affirmed the conviction and sentence
– On appeal, held: For resting a conviction in the case of circumstantial
evidence, the circumstances from which the conclusion of guilt is to be
drawn, should be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of the accused   F
– In the instant case, proven circumstances established a chain of
circumstances, which lead to no other conclusion than the guilt of the
appellant – In the statement recorded under s.313 Cr.P.C., though all
these incriminating circumstances were put to the appellant, he did not
offer any explanation except saying that it was wrong and false –
                                                                            G
Conviction u/ss.363, 366, 376(2)(i), 377, 201, 302 r/ws.376A and s.6
of the POCSO Act is maintained – However, taking into consideration
the state of mind of appellant, his socio-economic background, etc., it
cannot be said that there is no possibility of the appellant being
reformed and rehabilitated – Death penalty commuted to life
imprisonment.                                                               H
                                  809
810           SUPREME COURT REPORTS                     [2021] 14 S.C.R.


A           Partly allowing the appeals, the court
            HELD: 1. For resting a conviction in the case of
      circumstantial evidence, the circumstances from which the
      conclusion of guilt is to be drawn, should be fully established,
      and all the facts so established should be consistent only with the
B     hypothesis of the guilt of the accused. The circumstances should
      be of a conclusive nature and tendency, and they should be such
      as to exclude every hypothesis, but the one proposed to be
      proved. There must be a chain of evidence so complete as not to
      leave any reasonable ground for a conclusion consistent with the
      innocence of the accused, and it must be such as to show that
C     within all human probabilities, the act must have been done by
      the accused. [Para 14][817-C-D]
            2. The circumstances establish a chain of circumstances,
      which lead to no other conclusion than the guilt of the appellant.
      Apart from that, in the statement recorded under Section 313
D     Cr.P.C., though all these incriminating circumstances have been
      put to the appellant, he has not offered any explanation except
      saying that it is wrong and false. It is trite law that though the
      false explanation cannot be taken to complete a missing link in
      the chain of circumstances, it can surely be taken to fortify the
E     conclusion of conviction recorded on the basis of the proven
      incriminating circumstances. The non-explanation of the
      circumstances would fortify the finding, which is based on the
      chain of incriminating circumstances that leads to no
      other conclusion than the guilt of the appellant. [Paras 44, 45]
      [829-G-H; 830-D]
F
            Hanumant, son of Govind Nargundkar v. State of
            Madhya Pradesh [1952] 0 SCR 1091; Sharad
            Birdhichand Sarda v. State of Maharashtra (1984) 4
            SCC 116 : [1985] 1 SCR 88; Prakash Chand v. State
            (Delhi Administration) (1979) 3 SCC 90 : [1979] 2 SCR
G           330; Himachal Pradesh Administration v. Shri Om
            Prakash (1972) 1 SCC 249 : [1972] 2 SCR 765; A.N.
            Venkatesh and Another v. State of Karnataka (2005) 7
            SCC 714; State of Himachal Pradesh v. Jeet Singh
            (1999) 4 SCC 370; John Pandian v. State represented
H           by Inspector of Police, Tamil Nadu (2010) 14 SCC 129:
      LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                      811


      [2010] 15 SCR 1012; Krishan Mohar Singh Dugal v.                 A
      State of Goa (1999) 8 SCC 552; Nilesh Dinkar
      Paradkar v. State of Maharashtra (2011) 4 SCC 143 :
      [2011] 3 SCR 792 – referred to.
       3. The trial court as well as the High Court has only taken
into consideration the crime but they have not taken into              B
consideration the criminal, his state of mind, his socio-economic
background, etc. The appellant is a young person, who was 23
years old at the time of commission of the offence. He comes
from a rural background. The State has not placed any evidence
to show that there is no possibility with respect to reformation
and the rehabilitation of the accused. The High Court as well as       C
the trial court also has not taken into consideration this aspect of
the matter. The conduct of the appellant in the prison has been
found to be satisfactory. There are no criminal antecedents. It is
the first offence committed by the appellant. No doubt, a heinous
one. The appellant is not a hardened criminal. It therefore cannot     D
be said that there is no possibility of the appellant being reformed
and rehabilitated foreclosing the alternative option of a lesser
sentence and making imposition of death sentence imperative.
The judgment and order of conviction for the offences punishable
under Sections 363, 366, 376(2)(i), 377, 201, 302 read with Section
376A of the IPC and Section 6 of the POCSO Act is maintained.          E
However, the death penalty imposed on the appellant under
Section 302 IPC is commuted to life imprisonment. The sentences
awarded for the rest of the offences by the trial court as affirmed
by the High Court, are maintained. [Paras 50, 52, 54][832-E-F;
833-G; 835-B-C]                                                        F
      R. Shaji v. State of Kerala (2013) 14 SCC 266 : [2013]
      3 SCR 1172; Mohd. Mannan alias Abdul Mannan v.
      State of Bihar (2019) 16 SCC 584 : [2019] 8 SCR 266;
      Bachan Singh v. State of Punjab (1980) 2 SCC 684;
      Machhi Singh and Others v. State of Punjab (1983) 3              G
      SCC 470 : [1983] 3 SCR 413; Mofil Khan and Another
      v. The State of Jharkhand 2021 (14) SCALE 249;
      Rajendra Pralhadrao Wasnik v. State of Maharashtra
      (2019) 12 SCC 460 : [2018] 14 SCR 585; Sunil v. State
      of Madhya Pradesh (2017) 4 SCC 393 – relied on.
                                                                       H
812            SUPREME COURT REPORTS                      [2021] 14 S.C.R.


A                            Case Law Reference
      [1952] 0 SCR 1091                   referred to            Para 13
      [1985] 1 SCR 88                     referred to            Para 15
      [1979] 2 SCR 330                    referred to            Para 27
B
      [1972] 2 SCR 765                    referred to            Para 27
      (2005) 7 SCC 714                    referred to            Para 27
      (1999) 4 SCC 370                    referred to            Para 32

C     [2010] 15 SCR 1012                  referred to            Para 33
      (1999) 8 SCC 552                    referred to            Para 36
      [2011] 3 SCR 792                    referred to            Para 37
      [2013] 3 SCR 1172                   relied on              Para 40
D     [2019] 8 SCR 266                    relied on              Para 48
      (1980) 2 SCC 684                    relied on              Para 48
      [1983] 3 SCR 413                    relied on              Para 48
      2021 (14) SCALE 249                 relied on              Para 49
E
      [2018] 14 SCR 585                   relied on              Para 50
      (2017) 4 SCC 393                    relied on              Para 53
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
F     Nos.499-500 of 2018
            From the Judgment and Order dated 17.11.2017 of the High Court
      of Judicature of Chhattisgarh at Bilaspur in Reference (CRREF1 of
      2016) and Criminal Appeal No.888 of 2016.
            Anand Grover, Sr. Adv., Amartya Kanjilal, Ms. Priyashree Sharma,
G     Ms. Harini Raghupathy, Ms. Rushali Agarwal, Ms. Prerna Priyadarshini,
      Advs. for the Appellant.
            Nishanth Patil, Ms. Shubhika Saluja, Ms. Malvika Kala, Advs. for
      the Respondent.

H
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                            813


      The Judgment of the Court was delivered by                              A
      B. R. GAVAI, J.
        1. The appellant has approached this Court being aggrieved by
the judgment and order passed by the High Court of Chhattisgarh,
Bilaspur dated 17th November 2017, thereby dismissing the appeal
preferred by the appellant challenging the judgment and order dated 17th      B
June 2016, passed by the Additional Sessions Judge, Fast Track Court,
Raigarh (hereinafter referred to as the “trial judge”) vide which the trial
judge convicted the appellant for the offences punishable under Sections
363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the Indian
Penal Code, 1860 (hereinafter referred to as the “IPC”) and Section 6         C
of the Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as the “POCSO Act”). Vide the same judgment and order,
the appellant was sentenced to death for the offence punishable under
Section 302 of the IPC. For the other offences for which the appellant
was found guilty, sentences of rigorous imprisonment of 3 years, 5 years,
7 years and life imprisonment have been awarded to the appellant. The         D
trial judge has also made a reference being Cr. Ref. No. 1 of 2016 to the
High Court under Section 366 of the Code of Criminal Procedure, 1973
(hereinafter referred to as “Cr.P.C.”) for confirmation of death penalty.
Vide the impugned judgment and order, the High Court while dismissing
the appeal of the appellant, has confirmed the death penalty.                 E
      2. The prosecution case in brief is thus:
       Complainant-PW-1 Gudiya Parveen w/o PW-2-Mohd. Armaan
resided at D-29, 4th Floor, Bajrangdheepa Colony with her husband and
her minor victim daughter aged 3 years. At about 10.00 am, on 24th
February 2016, she had gone downstairs to wash clothes. At that time,         F
she called her husband for bathing the victim. Her husband told her that
the victim had gone downstairs to play. PW-1 then went upstairs and
told her husband that the victim was not downstairs. Thereafter, her
husband (PW-2) and she started looking for the victim, but the victim
was not found anywhere. Since the victim could not be found, PW-1             G
went to Jutemill Police Station and lodged a report of the victim going
missing. They continued the search and ultimately returned to their house
at around 03.00-04.00 am in the morning. PW-3-Mohd. Sahid alias Raju
Khan told her that appellant-Lochan Shrivas, a resident of D-15 in the
same building had said that if they would allow him to conduct a worship,
he could find their child in an hour. Therefore, they agreed to conduct       H
814             SUPREME COURT REPORTS                             [2021] 14 S.C.R.


A     the worship. After the worship, the appellant informed them that the
      child was tied and kept inside a sack in the bushes near a pole beside the
      road in Amlibhauna. On this, PW-1 and other prosecution witnesses
      developed a suspicion, and as such, PW-3 informed the police. The police
      interrogated the appellant, who confessed his crime before them.
      Thereafter, on a memorandum under Section 27 of the Indian Evidence
B
      Act, 1872 (hereinafter referred to as the “Evidence Act”), a sack from
      the bushes was recovered, wherein the dead body of the deceased soaked
      in blood was found (Ex.-P.12). On the basis of the oral report (Ex.-P.1)
      of PW-1, a First Information Report (hereinafter referred to as “FIR”)
      (Ex.-P.36) came to be registered for the offence punishable under Section
C     363 of the IPC. After completion of investigation, a charge-sheet came
      to be filed before the trial judge for the offences punishable under Sections
      363, 376, 377, 302, 201 of the IPC and Section 6 of the POCSO Act.
             3. Charges came to be framed for the offences punishable under
      Sections 363, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC
D     and Section 6 of the POCSO Act. The accused pleaded to be not guilty
      and claimed to be tried. At the conclusion of the trial, the trial judge recorded
      the aforesaid order of conviction and sentence. Being aggrieved thereby,
      an appeal was preferred by the appellant and also a reference was made
      by the trial judge under Section 366 of the Cr.P.C. By the impugned
      judgment and order, the High Court dismissed the appeal filed by the appellant
E     and confirmed the death sentence. Hence, the present appeals.
            4. We have heard Shri Anand Grover, learned Senior Counsel
      appearing on behalf of the appellant and Shri Nishanth Patil, learned
      counsel appearing on behalf of the respondent-State.

F             5. Shri Anand Grover, learned Senior Counsel appearing on behalf
      of the appellant submitted that the present case is a case based on
      circumstantial evidence. He submitted that the prosecution has utterly
      failed to establish the incriminating circumstances and in any case, failed
      to establish the chain of events, which leads to no other conclusion than
      the guilt of the accused. He submitted that there are many missing links
G     in the prosecution case, and as such, the judgment and order of conviction
      as recorded by the trial judge and confirmed by the High Court is not
      sustainable in law. The learned Senior Counsel submitted that the main
      incriminating circumstance, on which the prosecution relies, is the
      recovery of the dead body of the victim. He submitted that the recovery
H     is from an open place accessible to one and all. He therefore submitted
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                             815
                     [B. R. GAVAI, J.]

that the said recovery is of no assistance to the prosecution case. He         A
further submitted that the alleged recovery of black jeans half pant (Ex.-
P.15) of the deceased and the white gamchha (Ex.-P.16) is from a
place accessible to one and all. He submitted that in any case, the Forensic
Science Laboratory (hereinafter referred to as the “FSL”) reports are
inconclusive, and therefore, the prosecution has failed to establish the
                                                                               B
link between the recovered materials and the crime.
       6. Shri Grover submitted that the evidence of PW-9-Chameli Sarthi,
Constable would reveal that she had gone to the spot from where the
body of the victim was alleged to have been recovered at around 06.00
am. It is thus clear that the police were already aware about the place
from where the body was alleged to have been recovered on a                    C
memorandum under Section 27 of the Evidence Act.
       7. He further submitted that the finger nails of the appellant were
cut by a barber PW-8-Kishore Shrivas and not by any forensic expert.
He therefore submitted that the circumstance of finding human blood on
the said nails is of no use to the prosecution case. This is particularly so   D
in view of the long delay in seizure of the nail samples and sending them
to the FSL. The learned Senior Counsel further submitted that it is
improbable that the prosecution could have called the photographer at
such a short notice. He submitted that the alleged recovery is at around
08.00 am which are not the business hours, and as such, the very evidence      E
regarding photography and videography becomes doubtful.
       8. The learned Senior Counsel for the appellant further submitted
that the entire record would reveal that the appellant was not given an
opportunity of meaningfully defending the case. He submitted that since
the Raigarh District Bar Association had taken a resolution that no lawyer     F
from the Bar would appear for the appellant, it was difficult for him to
engage a lawyer. The lawyer appointed by the court from a list of panel
lawyers, also was not given sufficient opportunity to defend the case of
the appellant. He submitted that the evidence of PWs 1 and 2, the mother
and the father of the victim, were recorded on the very same day on
which the lawyer was appointed for the appellant. He further submitted         G
that the trial court recorded the judgment and order of conviction, and
the sentence on the very same day without giving an appropriate
opportunity to the appellant. The learned Senior Counsel therefore
submitted that the prosecution has failed to prove the case beyond
reasonable doubt and the appeals deserve to be allowed.                        H
816               SUPREME COURT REPORTS                             [2021] 14 S.C.R.


A             9. The learned Senior Counsel, in the alternative, would submit
      that in any case, the death penalty would not be warranted in the facts
      of the present case. He submitted that the trial court as well as the High
      Court has taken into consideration only the aspect of crime and they
      have not dealt with the aspect regarding the criminal. It is submitted that
      the trial court as well as the High Court has not taken into consideration
B
      the socio-economic background of the appellant so also the possibility of
      the appellant being reformed or rehabilitated. It is therefore submitted
      that the imposition of death penalty in the facts of the present case is not
      at all warranted.
             10. Shri Nishanth Patil, learned counsel appearing on behalf of
C     the respondent-State, on the contrary, submitted that the prosecution
      has established the case beyond reasonable doubt. It is submitted that
      the prosecution has proved all the incriminating circumstances beyond
      reasonable doubt. He further submitted that the prosecution has also
      established the link of proved circumstances, which leads to no other
D     conclusion than the guilt of the accused.
             11. Shri Patil further submitted that the appellant has committed a
      heinous act of rape on a minor girl and then brutally killed her, and as
      such, the case warrants for no other penalty than the death penalty.
             12. With the assistance of the learned counsel for the parties, we
E     have scrutinized the entire evidence on record in depth. Normally, this
      Court while exercising its jurisdiction under Article 136 of the Constitution
      of India, would not go into detailed analysis of the evidence. However,
      since in the present case, the trial court has imposed death penalty, which
      is confirmed by the High Court, we have scrutinized the evidence
F     minutely.
            13. The law with regard to conviction in cases based on
      circumstantial evidence has been very well crystalised in the celebrated
      case of Hanumant, son of Govind Nargundkar v. State of Madhya
      Pradesh1. A three-Judge Bench of this Court, speaking through Mehr
G     Chand Mahajan, J., observed thus:
               “It is well to remember that in cases where the evidence is of a
               circumstantial nature, the circumstances from which the conclusion
               of guilt is to be drawn should in the first instance be fully established,

      1
H         1952 SCR 1091
          LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                           817
                        [B. R. GAVAI, J.]

         and all the facts so established should be consistent only with the    A
         hypothesis of the guilt of the accused. Again, the circumstances
         should be of a conclusive nature and tendency and they should be
         such as to exclude every hypothesis but the one proposed to be
         proved. In other words, there must be a chain of evidence so far
         complete as not to leave any reasonable ground for a conclusion
                                                                                B
         consistent with the innocence of the accused and it must be such
         as to show that within all human probability the act much have
         been done by the accused.”
       14. It is thus clear that for resting a conviction in the case of
circumstantial evidence, the circumstances from which the conclusion
of guilt is to be drawn, should be fully established, and all the facts so      C
established should be consistent only with the hypothesis of the guilt of
the accused. The circumstances should be of a conclusive nature and
tendency, and they should be such as to exclude every hypothesis, but
the one proposed to be proved. There must be a chain of evidence so
complete as not to leave any reasonable ground for a conclusion consistent      D
with the innocence of the accused, and it must be such as to show that
within all human probabilities, the act must have been done by the
accused.
     15. Subsequently, this Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra2, observed thus:                                  E
         “153. A close analysis of this decision would show that the
         following conditions must be fulfilled before a case against an
         accused can be said to be fully established:
            (1) the circumstances from which the conclusion of guilt is to
            be drawn should be fully established.                               F
         It may be noted here that this Court indicated that the
         circumstances concerned “must or should” and not “may be”
         established. There is not only a grammatical but a legal distinction
         between “may be proved” and “must be or should be proved” as
         was held by this Court in Shivaji Sahabrao Bobade v. State of          G
         Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973
         Crl LJ 1783] where the observations were made : [SCC para 19,
         p. 807 : SCC (Cri) p. 1047]

2
    (1984) 4 SCC 116                                                            H
818            SUPREME COURT REPORTS                           [2021] 14 S.C.R.


A               “Certainly, it is a primary principle that the accused must be
                and not merely may be guilty before a court can convict and
                the mental distance between ‘may be’ and ‘must be’ is long
                and divides vague conjectures from sure conclusions.”
                (2) the facts so established should be consistent only with the
B               hypothesis of the guilt of the accused, that is to say, they should
                not be explainable on any other hypothesis except that the
                accused is guilty,
                (3) the circumstances should be of a conclusive nature and
                tendency,
C               (4) they should exclude every possible hypothesis except the
                one to be proved, and
                (5) there must be a chain of evidence so complete as not to
                leave any reasonable ground for the conclusion consistent with
                the innocence of the accused and must show that in all human
D               probability the act must have been done by the accused.
            154. These five golden principles, if we may say so, constitute
            the panchsheel of the proof of a case based on circumstantial
            evidence.”
             16. As has been held by this Court, in a case of circumstantial
E
      evidence, before the case can be said to be fully established against an
      accused, it is necessary that the circumstances from which the conclusion
      of guilt is to be drawn, should be fully established, and all the facts so
      established should be consistent only with the hypothesis of the guilt of
      the accused. They should not be explainable on any other hypothesis
F     except that the accused is guilty. The circumstances should be of a
      conclusive nature and tendency. They should exclude every hypothesis
      except the one to be proved. There must be a chain of evidence so
      complete as not to leave any reasonable ground for the conclusion
      consistent with the innocence of the accused and must show that in all
      human probabilities, the act must have been done by the accused.
G
            17. The aforesaid view has been consistently followed by this
      Court in a catena of decisions.
            18. The circumstances, which the trial court has culled out in its
      judgment while holding that the prosecution has proved its case beyond
H     reasonable doubt, are thus:
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                          819
                     [B. R. GAVAI, J.]

      “1.    The accused telling PW5 Munni that he can tell the location    A
             of the missing victim in an hour if he does Pooja.
      2.     PW5 Munni telling PW3; Mo Sahid alias Raju Khan what
             the accused had told her as above.
      3.     PW3 Mo Sahid alias Raju Khan telling the victim’s parents
             of the above conversation.                                     B

      4.     The deceased’s parents PW1 Gudiya Parveen and PW2
             Mo Armaan asking the accused to perform the Pooja.
      5.     The accused saying that the victim’s body was in a gunny
             sack near an electricity pole on the side of the road in       C
             Amlibhauna.
      6.     PW3 Mo Sahid alias Raju Khan telling the police of the
             aforesaid claims by the accused.
      7.     Police questioning the accused and the accused going along
             with the police to locate the victim’s dead body in a gunny    D
             sack in Amlibhauna.
      8.     The accused leading the police to recover the pillow and
             the towel from his home-
      9.     The accused leading the police to the rubbish dump where
             he had thrown the victim’s pants.                              E

      10.    Material used in a Pooja being recovered from the home of
             the victim
      11.    According to Ex P 46, the fact that blood was found under
             the accused’s nails and that the victim’s vaginal slide had    F
             traces of human sperm.”
       19. The High Court also by giving an elaborate reasoning has held
that the prosecution has proved the chain of incriminating circumstances,
which leads to no other conclusion than the guilt of the appellant.
      20. We will now consider the evidence led on behalf of the            G
prosecution to establish the incriminating circumstances against the
appellant.
       21. PW-1-Gudiya Parveen, mother of the victim has deposed that
she lived in D-29, 4th Floor, Bajrangdheepa Colony. The appellant lived
downstairs in D-15 in the same building. On 24 th February 2016 at about    H
820             SUPREME COURT REPORTS                         [2021] 14 S.C.R.


A     10.00 am, she had gone downstairs to wash clothes. She had called her
      husband for bathing the victim. However, her husband told her that the
      victim had gone downstairs to play. Thereafter, they searched for the
      victim but she was not found, and therefore, they went to Jutemill Police
      Station and lodged the report of the victim going missing. On the basis of
      the oral report (Ex.-P.1), an FIR (Ex.-P.36) came to be registered. The
B
      oral report (Ex.-P.1) is duly proved in the evidence of PW-1 whereas,
      the FIR (Ex.-P.36) has been proved in the evidence of PW-16-Dinesh
      Bahidar, Assistant Sub-Inspector.
             22. It could thus be seen that the first circumstance that the
      prosecution has proved, is that the victim went missing at around 10.00
C
      am, and thereafter, they started searching for her. When the victim was
      not found anywhere, an oral report (Ex.-P.1) came to be lodged at around
      22.00 hours on 24th February 2016 on the basis of which, an FIR (Ex.-
      P.36) came to be registered.
             23. PW-1, in her testimony, has further stated that she and her
D
      husband PW-2-Mohd. Armaan tried to search for the child. Since she
      could not be found, they returned at around 03.00-04.00 am. When they
      returned home, Raju Khan (PW-3) informed them that appellant-Lochan
      Shrivas, a resident of D-15, has stated that if they would allow him to
      conduct a worship, he could find the child in an hour. Then, PW-1 agreed
E     for conducting the worship. She arranged for the things required for
      worship – vermilion, lemons, earthen lamps, incense sticks and coal.
      After these things had been brought, the appellant performed the worship
      in the room of PW-1. He had asked them to cover all the pictures of
      Allah by a cloth. After performing the worship, the appellant told them
      that the child was inside a sack in the bushes near a pole beside the road
F
      in Amlibhauna.
             24. Similar is the evidence of PW-2-Mohd. Armaan, the husband
      of PW-1 and father of the victim. PW-3-Raju Khan, who is a neighbour,
      had stated in his evidence that when they could not find the victim, they
      returned at around 03.00-03.30 am. He stated that when they returned,
G
      Munni alias Sarbari (PW-5) told them that appellant-Lochan Shrivas,
      who lived in D-15 was telling her that the child could be traced by worship.
      Accordingly, the worship was performed, and after that, appellant-Lochan
      said that the victim was inside a sack in the bushes near a pole beside
      Amlibhauna road.
H
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                            821
                     [B. R. GAVAI, J.]

       25. PW-5-Munni alias Sarbari, who is also a resident of                A
Bajrangdheepa colony, stated that she had also joined for searching the
victim. However, since the victim was not found, they returned. At about
03.00-03.30 am on 25th February 2016, the appellant met her and said,
“If you conduct worship, your child will be found.” She told the same to
Raju Khan (PW-3). Then, the appellant conducted worship and said that
                                                                              B
the deceased was inside a sack in the bushes near a pole beside the road
in Amlibhauna.
       26. It could thus be seen that the prosecution has proved beyond
reasonable doubt that the appellant, on his own, told PW-5-Munni alias
Sarbari that if a worship was performed, the whereabouts of the victim
could be found. PW-5-Munni alias Sarbari informed this fact to PW-3-          C
Raju Khan, who in turn, informed the same to PWs 1 and 2. Accordingly,
a worship came to be performed. After the worship was performed, the
appellant told them that the victim could be found in a sack in the bushes
near a pole beside the road in Amlibhauna.
      27. PW-19-Amit Patley, Sub-Inspector, Investigating Officer             D
(hereinafter referred to as the “IO”), has also seized the materials which
were used for performing the worship (Ex.-P.18). The said panchnama
is witnessed by Raju Khan (PW-3). The said seizure panchnama
therefore corroborates the ocular version of PWs 1, 2, 3 and 5.
       It is thus clear that when PWs 1, 2, 3 and 5 returned to their place   E
of residence, the appellant informed PW-5 that if they perform a worship,
the deceased could be found. Accordingly, a worship was performed
and after performing the said worship, the appellant said that the deceased
could be found in a sack in the bushes near a pole beside the road in
Amlibhauna. This circumstance could be an important circumstance for          F
considering the conduct of the appellant under Section 8 of the Evidence
Act. Reliance in this respect could be placed on the judgments of this
Court in the cases of Prakash Chand v. State (Delhi Administration) 3,
Himachal Pradesh Administration v. Shri Om Prakash4 and A.N.
Venkatesh and Another v. State of Karnataka5.
                                                                              G
      28. The next and the most important circumstance on which the
prosecution relies, is the recovery of dead body of the victim on a

3
  (1979) 3 SCC 90
4
  (1972) 1 SCC 249
5
  (2005) 7 SCC 714                                                            H
822             SUPREME COURT REPORTS                          [2021] 14 S.C.R.


A     memorandum of the appellant under Section 27 of the Evidence Act.
      The evidence of PWs 1, 2, 3 and 5 would reveal that immediately after
      the appellant performing worship and telling them that the victim was
      inside a sack in the bushes near a pole beside the road in Amlibhauna, a
      suspicion arose and Raju Khan (PW-3) immediately informed the police
      and the police arrived. The evidence of all the four witnesses is consistent
B
      in that regard. Amit Patley, IO(PW-19) also corroborated this fact with
      regard to the police receiving the said information. In his evidence, PW-
      19 stated that he registered the said information in Rojnamcha No.2
      dated 25th February 2016 at 06.10 am. The said Rojnamcha entry has
      been exhibited at Ex.-P.38 and its attested copy is at Ex.-P.38-C.
C            29. PW-19, in his evidence, stated that after receiving the
      information, he immediately went to the spot and took the appellant into
      his custody and interrogated him. He stated that the appellant, on being
      interrogated, stated thus:
            “The previous day on 24.02.2016, at about 10:00, he had been
D           alone in his room. The deceased who lived in D-29 on the floor
            above his house was coming downstairs whom she persuaded
            and took into his room and closed his room from inside and got the
            pants worn by the deceased removed and forcibly made physical
            relation with her. Meanwhile, the deceased started crying loudly
E           so he pressed the mouth and nose of the deceased with a pillow.
            By making physical relation, excessive bleeding started, seeing
            which he got nervous and thinking that the secret should not be
            revealed, he murdered the deceased by strangulating her and wipe
            the blood and the ejaculated sperm smeared on his penis with a
            towel kept in the room. He filled the dead body of the deceased in
F           a plastic sack of lentil by twisting her hands and legs. He tied the
            bag with a plastic rope. He wore his clothes. He filled the pants
            worn by the deceased in a polythene and threw it from the balcony
            to the place where garbage is disposed and entering the room
            placed the dead body of the deceased that he had filled in a plastic
G           sack, in a yellow bag. He locked the room, carried the bag in
            hands and went on foot to hide the dead body in a bush near
            electric pole at Amlibhouna road and stated of keeping the bag in
            his home on returning and of keeping the pillow with which he
            had pressed the nose and mouth of the deceased and the towel
            with which he had wiped the blood and semen on his penis, in his
H
          LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                           823
                        [B. R. GAVAI, J.]

         room and stated of getting the dead body of the deceased, her          A
         pants, pillow and towel recovered.”
      30. The memorandum statement under Section 27 of the Evidence
Act was duly executed and the same was marked as Ex.-P.11. The
prosecution has examined PW-3-Raju Khan, who is a witness to the
said memorandum statement.                                                      B
       31. PW-19 further stated that thereafter, in the presence of the
witnesses, he recovered a blue plastic bag bearing a map of India and
the text “No.1 Dal Best Quality Dal”, which had been tied with a plastic
rope. He got the bag cut open by Raju Khan (PW-3) in the presence of
the father of the deceased (PW-2) and other witnesses. In the said              C
sack, the dead body of the victim soaked in blood and in a naked condition
was found. The body was identified by PW-2, who is the father of the
deceased. The recovery panchnama is duly executed under Ex.-P.12.
The prosecution has relied on the evidence of PW-3, who was a panch
witness to the said panchnama.
                                                                                D
        32. The said recovery on the memorandum of the appellant under
Section 27 of the Evidence Act, has been attacked by the defence on
the ground that the same is from an open place, accessible to one and
all. In this respect, it is apposite to rely on the following observations of
this Court in the case of State of Himachal Pradesh v. Jeet Singh6:
                                                                                E
         “26. There is nothing in Section 27 of the Evidence Act which
         renders the statement of the accused inadmissible if recovery of
         the articles was made from any place which is “open or accessible
         to others”. It is a fallacious notion that when recovery of any
         incriminating article was made from a place which is open or
         accessible to others, it would vitiate the evidence under Section      F
         27 of the Evidence Act. Any object can be concealed in places
         which are open or accessible to others. For example, if the article
         is buried in the main roadside or if it is concealed beneath dry
         leaves lying on public places or kept hidden in a public office, the
         article would remain out of the visibility of others in normal         G
         circumstances. Until such article is disinterred, its hidden state
         would remain unhampered. The person who hid it alone knows
         where it is until he discloses that fact to any other person. Hence,
         the crucial question is not whether the place was accessible to
6
    (1999) 4 SCC 370                                                            H
824               SUPREME COURT REPORTS                           [2021] 14 S.C.R.


A              others or not but whether it was ordinarily visible to others. If it is
               not, then it is immaterial that the concealed place is accessible to
               others.”
             It could thus be seen that this Court has held that what is relevant
      is not whether the place was accessible to others or not, but whether it
B     was ordinarily visible to others. If the place at which the article hidden is
      such where only the person hiding it knows until he discloses that fact to
      any other person, then it will be immaterial whether the concealed place
      is accessible to others.
            33. It will also be relevant to refer to the following observations of
C     this Court in the case of John Pandian v. State represented by
      Inspector of Police, Tamil Nadu7:
               “57. It was then urged by the learned counsel that this was an
               open place and anybody could have planted veechu aruval. That
               appears to be a very remote possibility. Nobody can simply
D              produce a veechu aruval planted under the thorny bush. The
               discovery appears to be credible. It has been accepted by both
               the courts below and we find no reason to discard it. This is
               apart from the fact that this weapon was sent to the forensic
               science laboratory (FSL) and it has been found stained with
               human blood. Though the blood group could not be ascertained,
E              as the results were inconclusive, the accused had to give some
               explanation as to how the human blood came on this weapon.
               He gave none. This discovery would very positively further the
               prosecution case.”
             34. A perusal of the material placed on record would reveal that
F     the dead body of the deceased was recovered on the basis of the
      information supplied by the appellant that he had concealed the body in
      a sack in the bushes near a pole beside the road in Amlibhauna. The
      evidence of PW-7-Krishna Kumar Jaiswal, Photographer would reveal
      that after he received the notice, he went to the spot and clicked the
G     photographs (Ex.-P.23). He has further stated that he has also made the
      videography of the entire procedure.
           35. It will also be relevant to refer to the following observations
      made by the High Court in para (35) of the impugned judgment:

      7
H         (2010) 14 SCC 129
          LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                           825
                        [B. R. GAVAI, J.]

         “35. We have gone through the video movie prepared and after           A
         watching the video, we are of the view that the recovery of dead
         body was made from a place which cannot be said to be accessible
         to an ordinary person without prior knowledge as the body
         recovered was kept concealed in a gunny bag inside the shrubs
         situated at sufficient distance from the main road. In the statement
                                                                                B
         under Section 313 CrPC, the accused/appellant failed to explain
         how he came to know that the deceased had been murdered and
         thrown in the shrubs after wrapping her in a gunny bag……..”
       It could thus be seen that the High Court had itself viewed the
video and on seeing the same, it was of the view that the recovery of the
dead body was made from a place, which cannot be said to be accessible          C
to an ordinary person without prior knowledge since the body recovered
was kept concealed in a gunny bag inside the shrubs situated at sufficient
distance from the main road.
       36. Insofar as the reliance placed by the appellant on the judgment
of this Court in the case of Krishan Mohar Singh Dugal v. State of              D
Goa8 is concerned, in the said case, the accused was convicted for the
offence punishable under Section 20(b)(ii) of the Narcotic Drugs and
Psychotropic Substances Act, 1985, solely on the basis of recovery at
the instance of the accused on the basis of memorandum statement
under Section 27 of the Evidence Act. In the said case, the recovery            E
was from a place under the coconut tree, which was accessible to one
and all. It was not a case of concealment in a place, which was only
within the knowledge of the person concealing it. In any event, in the
said case, the conviction was solely on the basis of the said recovery
and as such, was found to be untenable.
                                                                                F
       37. Insofar as the reliance placed by the appellant on the judgment
of this Court in the case of Nilesh Dinkar Paradkar v. State of
Maharashtra9 is concerned, in the said case, the conviction was solely
on the basis of identification by voice and as such, was not found to be
tenable. As such, these cases would not be of any assistance to the case
of the appellant.                                                               G
      38. It has been sought to be urged on behalf of the appellant that
from the evidence of PW-9-Chameli Sarthi, it is clear that the police
8
    (1999) 8 SCC 552
9
    (2011) 4 SCC 143                                                            H
826             SUPREME COURT REPORTS                          [2021] 14 S.C.R.


A     already knew about the place where the dead body was concealed. PW-
      9 had taken the dead body of the deceased to District Hospital, Raigarh. It
      will be apposite to refer to the relevant portion of the deposition of PW-9:
            “We went to the place of incident Amlibhowna at 6 a.m. from the
            outpost. From there, we directly went to the hospital with all.
B           Today, I cannot state at what time we left the place of incident
            Amlibhowna. The witness now says, “Perhaps we left at 8-9 O’
            clock. Along with Prakash Tiwari, Sub-Inspector Amit Patle was
            also present with me and policemen from other police station were
            also present. Two person were going ahead taking the dead body
            in an auto-rickshaw, we were following by our bikes.”
C
             PW-9 stated that she went to the place of incident Amlibhauna at
      06.00 am from the outpost. It is to be noted that according to the evidence
      of PWs 1, 2, 3 and 19, PW-3 informed PW-19 about the incident at
      around 06.00 am. The said information was registered in the Rojnamcha
      at around 06.10 am. What is stated by this witness is that she went to
D     Amlibhauna which is a locality. However, that by itself would not be
      sufficient to come to a conclusion that the police already knew about the
      place from where the dead body was recovered. She stated that she
      had left for the hospital at around 08.00-09.00 o’clock. The evidence of
      a witness cannot be read in piecemeal. The evidence has to be read as
E     a whole. If the evidence of this witness is read as a whole, the attack on
      her evidence is not justified. In any case, the recovery of the body on the
      information given by the appellant, is duly proved by the memorandum
      of the appellant under Section 27 of the Evidence Act (Ex.-P.11) and the
      recovery panchnama (Ex.-P.12). That apart, the oral testimony of PWs
      1, 2, 3, 5 and 19 corroborates the same.
F
             39. We are therefore of the considered view that the prosecution
      has proved beyond reasonable doubt that the recovery of the dead body
      of the deceased on the memorandum of the appellant under Section 27
      of the Evidence Act, was from a place distinctly within the knowledge
      of the appellant.
G
             40. Another circumstance against the appellant is the recovery of
      the black jeans half pant of the deceased (Ex.-P.15) from the dumping
      area and the gamchha and pillow (Ex.-P.16) from the house of the
      appellant. PW-3 is a panch witness to the recovery of black jeans half
      pant (Ex.-P.15). He is also a witness to the spot panchnama (Ex.-P.17)
H     where the worship was conducted. It is further noted that on the
          LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                              827
                        [B. R. GAVAI, J.]

gamchha seized from the house of the appellant, blood-stains were found.           A
Much attack has been made by the defence on the ground that the FSL
Report does not connect the appellant with the said blood found on
gamchha. To consider this submission, we may gainfully refer to the
following observations of this Court in the case of R. Shaji v. State of
Kerala10:
                                                                                   B
         “30. It has been argued by the learned counsel for the appellant
         that as the blood group of the bloodstains found on the chopper
         could not be ascertained, the recovery of the said chopper cannot
         be relied upon.
         31. A failure by the serologist to detect the origin of the blood         C
         due to disintegration of the serum does not mean that the
         blood stuck on the axe could not have been human blood at
         all. Sometimes it is possible, either because the stain is insufficient
         in itself, or due to haematological changes and plasmatic
         coagulation, that a serologist may fail to detect the origin of the
         blood in question. However, in such a case, unless the doubt is of        D
         a reasonable dimension, which a judicially conscientious mind may
         entertain with some objectivity, no benefit can be claimed by the
         accused in this regard. Once the recovery is made in pursuance
         of a disclosure statement made by the accused, the matching or
         non-matching of blood group(s) loses significance. (Vide Prabhu           E
         Babaji Navle v. State of Bombay [AIR 1956 SC 51 : 1956 Cri
         LJ 147] , Raghav Prapanna Tripathi v. State of U.P. [AIR 1963
         SC 74 : (1963) 1 Cri LJ 70] , State of Rajasthan v. Teja
         Ram [(1999) 3 SCC 507 : 1999 SCC (Cri) 436] , Gura
         Singh v. State of Rajasthan [(2001) 2 SCC 205 : 2001 SCC (Cri)
         323 : AIR 2001 SC 330] , John Pandian v. State [(2010) 14 SCC             F
         129 : (2011) 3 SCC (Cri) 550] and Sunil Clifford Daniel v. State
         of Punjab [(2012) 11 SCC 205 : (2013) 1 SCC (Cri) 438] .)
         32. In view of the above, the Court finds that it is not possible to
         accept the submission that in the absence of a report regarding
         the origin of the blood, the accused cannot be convicted, for it is       G
         only because of the lapse of time that the blood could not be
         classified successfully. Therefore, no advantage can be conferred
         upon the accused to enable him to claim any benefit, and the

10
     (2013) 14 SCC 266                                                             H
828            SUPREME COURT REPORTS                          [2021] 14 S.C.R.


A           report of disintegration of blood, etc. cannot be termed as a missing
            link, on the basis of which the chain of circumstances may be
            presumed to be broken.”
             41. The next circumstance is the finding of the blood-stains on the
      nail clipping of the appellant. PW-8-Kishore Shrivas is a barber. He has
B     stated that on being called by the police, he cut the nails of both the
      hands of the appellant. The said nails were cut under the panchnama
      Ex.-P.19, which is signed by the said barber as well as PW-3. The said
      circumstance is attacked on the ground that the IO had not called the
      forensic team for seizure of the said nails. However, even if this
      circumstance is excluded, we find that the other circumstances, which
C     have been discussed in detail by us in the foregoing paragraphs,
      conclusively bring home the guilt of the appellant.
            42. The panchnamas are sought to be attacked on the ground that
      PW-3 is the only panch witness to all these panchnamas. We are of the
      view that this contention deserves no merit in the light of the following
D     observations of this Court in the case of Himachal Pradesh
      Administration (supra):
            “10. Further having held this it nonetheless said that there was no
            injunction against the same set of witnesses being present at the
            successive enquiries if nothing could be urged against them. In
E           our view the evidence relating to recoveries is not similar to that
            contemplated under Section 103 of the Criminal Procedure Code
            where searches are required to be made in the presence of two
            or more inhabitants of the locality in which the place to be searched
            is situate. In an investigation under Section 157 the recoveries
F           could be proved even by the solitary evidence of the Investigating
            Officer if his evidence could otherwise be believed. We cannot
            as a matter of law or practice lay down that where recoveries
            have to be effected from different places on the information
            furnished by the accused different sets of persons should be called
            in to witness them. In this case PW 2 and PW 8 who worked with
G           the deceased were the proper persons to witness the recoveries
            as they could identify some of the things that were missing and
            also they could both speak to the information and the recovery
            made in consequence thereof as a continuous process. At any
            rate PW 2 who is alleged to be the most interested was not present
H           at the time of the recovery of the dagger.”
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                            829
                     [B. R. GAVAI, J.]

       43. We are therefore of the considered view that the prosecution       A
has established the following circumstances beyond reasonable doubt:
      (i)     The victim was reported missing and an FIR was lodged in
              this regard;
      (ii)    The appellant had claimed that he could disclose the
              whereabouts of the victim by performing a worship;              B

      (iii)   The said worship came to be conducted by the appellant in
              the early hours of 25th February 2016 in the presence of
              PWs 1, 2, 3 and 5 and the appellant disclosed to them that
              the dead body of the victim was inside a sack in the bushes
              near a pole beside the road in Amlibhauna;                      C

      (iv)    A suspicion arose in the minds of PWs 1, 2, 3 and 5 and
              they immediately informed the police. The said information
              is recorded in Rojnamcha No. 2 under Ex.-P.38;
      (v)     Police immediately reached the spot and interrogated the        D
              appellant. On interrogation, a memorandum under Section
              27 of the Evidence Act came to be recorded;
      (vi)    On the basis of memorandum of the appellant under Section
              27 of the Evidence Act, the dead body of the victim (Ex.-
              P.12) was recovered from a sack which was concealed by
                                                                              E
              the appellant under the bushes from a place distinctly within
              his knowledge; and
      (vii)   On a memorandum of the appellant under Section 27 of the
              Evidence Act, a black jeans half pant of the victim (Ex.-
              P.15) and a gamchha of the appellant (Ex.-P.16), were
                                                                              F
              recovered from the dumping area behind D Block in Nagar
              Nigam Colony and the house of the appellant respectively.
       44. We are of the considered view that the aforesaid proven
circumstances establish a chain of circumstances, which leads to no
other conclusion than the guilt of the appellant. Apart from that, in the
statement recorded under Section 313 Cr.P.C., though all these                G
incriminating circumstances have been put to the appellant, he has not
offered any explanation except saying that it is wrong and false. In this
respect, we may refer to the following observations of this Court in the
case of Sharad Birdhichand Sarda (supra):
                                                                              H
830             SUPREME COURT REPORTS                          [2021] 14 S.C.R.


A           “151. It is well settled that the prosecution must stand or fall on
            its own legs and it cannot derive any strength from the weakness
            of the defence. This is trite law and no decision has taken a contrary
            view. What some cases have held is only this : where various
            links in a chain are in themselves complete, then a false plea or a
            false defence may be called into aid only to lend assurance to the
B
            court. In other words, before using the additional link it must be
            proved that all the links in the chain are complete and do not
            suffer from any infirmity. It is not the law that where there is any
            infirmity or lacuna in the prosecution case, the same could be
            cured or supplied by a false defence or a plea which is not accepted
C           by a court.
             45. It is trite law that though the false explanation cannot be taken
      to complete a missing link in the chain of circumstances, it can surely be
      taken to fortify the conclusion of conviction recorded on the basis of the
      proven incriminating circumstances. We find that the non-explanation of
D     the circumstances would fortify the finding, which is based on the chain
      of incriminating circumstances that leads to no other conclusion than the
      guilt of the appellant.
             46. An important aspect arises for consideration in the present
      appeals so also in the various other appeals where the accused is not
E     given an appropriate opportunity of defending the case. In the present
      case, we find that the charges were framed on 6th May 2016. On 6th
      June 2016, the accused appeared before the court and submitted that he
      was not competent to engage a lawyer at his own cost. As such, the trial
      judge appointed Shri Kamlesh Saraf from the Panel as the lawyer to
      represent the accused. Immediately on the next day, the evidence of
F     PWs 3 to 7 were recorded. The trial judge passed the judgment and
      order of conviction on 17th June 2016 and also awarded death penalty on
      the same day. We find that though a speedy trial is desirable, however,
      sufficient time ought to have been given to the counsel for the accused
      to prepare for the case after he was appointed. Even insofar as the
G     award of sentence is concerned, some period ought to have been given
      between the date of conviction and the award of sentence, specifically
      when a death penalty was awarded. However, from the evidence which
      we have scrutinized in depth, we do not find that any prejudice was
      caused to the accused inasmuch as the witnesses have been cross-
      examined in detail by the lawyer appointed by the court.
H
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                               831
                     [B. R. GAVAI, J.]

      47. That leaves us with the question of sentence. We will have to          A
consider as to whether the capital punishment in the present case is
warranted or not.
       48. Recently, this Court in the case of Mohd. Mannan alias
Abdul Mannan v. State of Bihar11, after considering earlier judgments
of this Court on the present issue in the cases of Bachan Singh v. State         B
of Punjab 12 and Machhi Singh and Others v. State of Punjab 13,
observed thus:
       “72. The proposition of law which emerges from the judgments
       referred to above is itself death sentence cannot be imposed except
       in the rarest of rare cases, for which special reasons have to be         C
       recorded, as mandated in Section 354(3) of the Criminal Procedure
       Code. In deciding whether a case falls within the category of the
       rarest of rare, the brutality, and/or the gruesome and/or heinous
       nature of the crime is not the sole criterion. It is not just the crime
       which the Court is to take into consideration, but also the criminal,
       the state of his mind, his socio-economic background, etc. Awarding       D
       death sentence is an exception, and life imprisonment is the rule.”
      49. This Bench, recently, in the case of Mofil Khan and Another
v. The State of Jharkhand14, has observed thus:
       “8. One of the mitigating circumstances is the probability of the         E
       accused being reformed and rehabilitated. The State is under a
       duty to procure evidence to establish that there is no possibility of
       reformation and rehabilitation of the accused. Death sentence
       ought not to be imposed, save in the rarest of the rare cases when
       the alternative option of a lesser punishment is unquestionably
       foreclosed (See: Bachan Singh v. State of Punjab (1980) 2 SCC             F
       684). To satisfy that the sentencing aim of reformation is
       unachievable, rendering life imprisonment completely futile, the
       Court will have to highlight clear evidence as to why the convict
       is not fit for any kind of reformatory and rehabilitation scheme.
       This analysis can only be done with rigour when the Court focuses         G
       on the circumstances relating to the criminal, along with other

11
   (2019) 16 SCC 584
12
   (1980) 2 SCC 684
13
   (1983) 3 SCC 470
14
   RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021    H
832               SUPREME COURT REPORTS                            [2021] 14 S.C.R.


A              circumstances (See: Santosh Kumar Satishbhushan Bariyar v.
               State of Maharashtra (2009) 6 SCC 498). In Rajendra
               Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC
               460, this Court dealt with the review of a judgment of this Court
               confirming death sentence and observed as under:
B                  “45. The law laid down by various decisions of this Court clearly
                   and unequivocally mandates that the probability (not possibility
                   or improbability or impossibility) that a convict can be reformed
                   and rehabilitated in society must be seriously and earnestly
                   considered by the courts before awarding the death sentence.
                   This is one of the mandates of the “special reasons”
C                  requirement of Section 354(3) CrPC and ought not to be taken
                   lightly since it involves snuffing out the life of a person. To
                   effectuate this mandate, it is the obligation on the prosecution
                   to prove to the court, through evidence, that the probability is
                   that the convict cannot be reformed or rehabilitated. This can
D                  be achieved by bringing on record, inter alia, material about his
                   conduct in jail, his conduct outside jail if he has been on bail for
                   some time, medical evidence about his mental make-up, contact
                   with his family and so on. Similarly, the convict can produce
                   evidence on these issues as well.””
E           50. In the present case, it is to be noted that the trial court had
      convicted the appellant and imposed death penalty on the very same
      day. The trial court as well as the High Court has only taken into
      consideration the crime but they have not taken into consideration the
      criminal, his state of mind, his socio-economic background, etc. At this
      juncture, it will be relevant to refer to the following observations of this
F     Court in the case of Rajendra Pralhadrao Wasnik v. State of
      Maharashtra15:
               “47. Consideration of the reformation, rehabilitation and
               reintegration of the convict into society cannot be overemphasised.
               Until Bachan Singh [Bachan Singh v. State of Punjab, (1980)
G              2 SCC 684 : 1980 SCC (Cri) 580] , the emphasis given by the
               courts was primarily on the nature of the crime, its brutality and
               severity. Bachan Singh [Bachan Singh v. State of Punjab,
               (1980) 2 SCC 684 : 1980 SCC (Cri) 580] placed the sentencing

      15
H          (2019) 12 SCC 460
       LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                              833
                     [B. R. GAVAI, J.]

      process into perspective and introduced the necessity of considering      A
      the reformation or rehabilitation of the convict. Despite the view
      expressed by the Constitution Bench, there have been several
      instances, some of which have been pointed out in Bariyar [Santosh
      Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6
      SCC 498 : (2009) 2 SCC (Cri) 1150] and in Sangeet v. State of
                                                                                B
      Haryana [Sangeet v. State of Haryana, (2013) 2 SCC 452 : (2013)
      2 SCC (Cri) 611] where there is a tendency to give primacy to the
      crime and consider the criminal in a somewhat secondary manner.
      As observed in Sangeet [Sangeet v. State of Haryana, (2013) 2
      SCC 452 : (2013) 2 SCC (Cri) 611] “In the sentencing process,
      both the crime and the criminal are equally important.” Therefore,        C
      we should not forget that the criminal, however ruthless he might
      be, is nevertheless a human being and is entitled to a life of dignity
      notwithstanding his crime. Therefore, it is for the prosecution and
      the courts to determine whether such a person, notwithstanding
      his crime, can be reformed and rehabilitated. To obtain and analyse
                                                                                D
      this information is certainly not an easy task but must nevertheless
      be undertaken. The process of rehabilitation is also not a simple
      one since it involves social reintegration of the convict into society.
      Of course, notwithstanding any information made available and
      its analysis by experts coupled with the evidence on record, there
      could be instances where the social reintegration of the convict          E
      may not be possible. If that should happen, the option of a long
      duration of imprisonment is permissible.”
       51. In view of the settled legal position, it is our bounden duty to
take into consideration the probability of the accused being reformed
and rehabilitated. It is also our duty to take into consideration not only      F
the crime but also the criminal, his state of mind and his socio-economic
conditions.
       52. The appellant is a young person, who was 23 years old at the
time of commission of the offence. He comes from a rural background.
The State has not placed any evidence to show that there is no possibility      G
with respect to reformation and the rehabilitation of the accused. The
High Court as well as the trial court also has not taken into consideration
this aspect of the matter. The appellant has placed on record the affidavits
of Leeladhar Shrivas, younger brother of the appellant as well as
Ghasanin Shrivas, elder sister of the appellant. A perusal of the affidavits
                                                                                H
834               SUPREME COURT REPORTS                         [2021] 14 S.C.R.


A     would reveal that the appellant comes from a small village called Pusalda
      in Raigarh district of Chhattisgarh. His father was earning his livelihood
      as a barber. The appellant was studious and hard-working. He did really
      well at school and made consistent efforts to bring the family out of
      poverty. The conduct of the appellant in the prison has been found to be
      satisfactory. There are no criminal antecedents. It is the first offence
B
      committed by the appellant. No doubt, a heinous one. The appellant is
      not a hardened criminal. It therefore cannot be said that there is no
      possibility of the appellant being reformed and rehabilitated foreclosing
      the alternative option of a lesser sentence and making imposition of death
      sentence imperative.
C            53. A bench consisting of three Judges of this Court had an occasion
      to consider similar facts in the case of Sunil v. State of Madhya
      Pradesh16. In the said case too, the appellant-accused was around 25
      years of age who had taken away a minor girl. The accused had
      committed rape on the said minor and caused her death due to asphyxia
D     caused by strangulation. The trial court had sentenced the accused for
      the offences punishable under Sections 363, 367, 376(2)(f) and 302 of
      the IPC and awarded him death penalty. The same was upheld by the
      High Court. In appeal, this Court held thus:
               “12. In the present case, we do not find that the requirements
E              spelt out in Bachan Singh [Bachan Singh v. State of Punjab,
               (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and the pronouncements
               thereafter had engaged the attention of either of the courts. In the
               present case, one of the compelling/mitigating circumstances that
               must be acknowledged in favour of the appellant-accused is the
               young age at which he had committed the crime. The fact that
F              the accused can be reformed and rehabilitated; the probability
               that the accused would not commit similar criminal acts; that the
               accused would not be a continuing threat to the society, are the
               other circumstances which could not but have been ignored by
               the learned trial court and the High Court.
G              13. We have considered the matter in the light of the above. On
               such consideration, we are of the view that in the present case,
               the ends of justice would be met if we commute the sentence of
               death into one of life imprisonment. We order accordingly. The

      16
H          (2017) 4 SCC 393
        LOCHAN SHRIVAS v. THE STATE OF CHHATTISGARH                             835
                      [B. R. GAVAI, J.]

       punishments awarded for the offences under Sections 363, 367             A
       and 376(2)(f) IPC by the learned trial court and affirmed by the
       High Court are maintained.”
      54. We are also inclined to adopt the same reasoning and follow
the same course as adopted by this Court in the case of Sunil (supra).
The appeals are therefore partly allowed. The judgment and order of             B
conviction for the offences punishable under Sections 363, 366, 376(2)(i),
377, 201, 302 read with Section 376A of the IPC and Section 6 of the
POCSO Act is maintained. However, the death penalty imposed on the
appellant under Section 302 IPC is commuted to life imprisonment. The
sentences awarded for the rest of the offences by the trial court as
affirmed by the High Court, are maintained.                                     C

      55. Before we part with the judgment, we must appreciate the
valuable assistance rendered by Shri Anand Grover, learned Senior
Counsel appearing on behalf of the appellant and Shri Nishanth Patil,
learned counsel appearing on behalf of the respondent-State.
                                                                                D

Devika Gujral                                         Appeals partly allowed.




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