NAND KISHOREversusSTATE OF MADHYA PRADESH

260                      [2019]REPORTS
               SUPREME COURT    1 S.C.R. 260                 [2019] 1 S.C.R.


A                               NAND KISHORE
                                         v.
                       STATE OF MADHYA PRADESH
                        (Criminal Appeal No. 94 of 2019)
B                               JANUARY 18, 2019
                 [S. A. BOBDE, L. NAGESWARA RAO AND
                           R. SUBHASH REDDY, JJ.]
             Sentence/Sentencing – Death sentence – Award of – On facts,
      rape and murder of a minor girl by appellant aged 50 years –
C     Conviction of the appellant u/ss.302, 363, 366 and 376(2)(i) and
      award of death sentence on basis of the circumstantial evidence –
      Upheld by the courts below – On appeal, held: By applying the
      ‘last seen’ theory to the facts of the case and considering the forensic
      and medical evidence on record, courts below rightly convicted the
D     appellant – As regards imposition of death sentence, it is the
      appellant’s case that he was denied the proper legal assistance in
      the matter and is a manhole worker – It cannot be said that there is
      no possibility of reformation of the appellant – Reasons assigned
      by the courts below, do not constitute special reasons within the
      meaning of s.354(3) Cr.P.C to impose death penalty – Instant case
E     does not fall within the ‘rarest of rare’ cases – In view thereof, the
      death sentence imposed by the trial court, as upheld by the High
      Court, is modified to that of life imprisonment with actual period of
      25 years, without any benefit of remission – Sentences imposed for
      all offences to run concurrently – Penal Code, 1860 – ss. 302, 363,
F     366 and 376(2)(i) – Code of Criminal Procedure, 1973 – s.354(3).
            Partly allowing the appeal, the Court
            HELD: 1.1 So far as the conviction is concerned, the
      findings recorded by the trial court which are based on the
      appreciation of oral and documentary evidence on record, are
G     satisfactory. Though the case totally rests on circumstantial
      evidence, it is to be noticed that PW-4, brother of the deceased
      had accompanied the deceased to ‘Mela’ on the fateful day. He
      has identified the accused in the Test Identification Parade and
      further he has categorically stated that the appellant took away
      the deceased from the ‘Mela’. Further, PW-1, has deposed that
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                                        260
      NAND KISHORE v. STATE OF MADHYA PRADESH                            261


when he was coming from his shop to the residence, he saw a              A
dog running away with a leg of a child in its mouth and on being
chased it dropped the leg. Further investigation revealed
detection of headless body of the deceased in the bushes. Further,
PW-7, has also stated that he had seen the appellant on the fateful
day at 9:00 p.m. with a girl wearing yellow frock. By applying the
                                                                         B
‘last seen’ theory to the facts of the case and further considering
the forensic and medical evidence on record, trial court has rightly
recorded guilt of the accused for the offences alleged. Even the
High Court, referring to the relevant evidence on record, rightly
confirmed the conviction of the appellant for the charges levelled
against him. [Para 10-11][265-C-G]                                       C
       1.2 The instant case solely rests on circumstantial evidence.
It is the specific case of the appellant that he was denied the
proper legal assistance in the matter and he is a manhole worker.
The appellant was aged about 50 years. Further, in this case there
is no finding recorded by the courts below to the effect that there      D
is no possibility of reformation of the appellant. The reasons
assigned by the trial court as confirmed by the High Court, do
not constitute special reasons within the meaning of Section
354(3) Cr.P.C to impose death penalty on the accused. Taking
into account the evidence on record and the totality of the
circumstances of the case, and by applying the test on the               E
touchstone of case law, the case on hand will not fall within the
‘rarest of rare’ cases. In that view of the matter, the death sentence
imposed by the trial court, as confirmed by the High Court,
requires modification. While confirming the conviction, recorded
by the trial court, as confirmed by the appellate court, the             F
sentence is modified to that of life imprisonment with actual period
of 25 years, without any benefit of remission. The sentences
imposed for all offences shall run concurrently. [Para 14][269-C-
F]
      Mukesh & Anr. v. State (NCT of Delhi) & Ors.                       G
      (2017) 6 SCC 1 – distinguished.
      Bachan Singh v. State of Punjab (1980) 2 SCC 684;
      Swamy Shradhananda(2) v. State of Karnataka (2008)
      13 SCC 767; Neel Kumar v. State of Haryana (2012) 5
      SCC 766; Selvam v. State (2014) 12 SCC 274; Tattu                  H
262            SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A           Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675;
            Raj Kumar v. State of Madhya Pradesh (2014) 5 SCC
            353; Anil v. State of Maharashtra (2014) 4 SCC 69 –
            referred to.
                                Case Law Reference
B           (1980) 2 SCC 684            referred to               Para 12
            [2008] 11 SCR 93            referred to               Para 13
            [2012] 5 SCR 696            referred to               Para 13
            (2014) 12 SCC 274           referred to               Para 13
C
            [2016] 3 SCR 561            referred to               Para 13
            [2014] 3 SCR 212            referred to               Para 13
            [2014] 3 SCR 34             referred to               Para 13
            [2017] 6 SCR 1              distinguished             Para 14
D
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      94 of 2019.
           From the Judgment and Order dated 25.06.2013 of the High Court
      of Madhya Pradesh at Jabalpur in Criminal Appeal No. 798 of 2013.
E           Sanjay R. Hegde, Sr. Adv., Pranjal Kishore, Dr. Sanjay Gupta,
      Yash S. Vijay, Dr. Sushil Balwada, Advs. for the Appellant.
             Ms. Swarupama Chaturvedi, B. N. Dubey, Mukesh Kumar, Advs.
      for the Respondent.
            The Judgment of the Court was delivered by
F
            R. SUBHASH REDDY, J. 1. Leave granted.
             2. This criminal appeal is filed by the appellant in Criminal Appeal
      No.798 of 2013 filed before the High court of Madhya Pradesh at
      Jabalpur, aggrieved by the judgment dated 25.06.2013. By the aforesaid
G     judgment, while dismissing the appeal preferred by the appellant herein
      convicted for the offence under Sections 302, 363, 366 and 376(2)(i) of
      the Indian Penal Code (IPC), the High Court answered the reference in
      affirmative by confirming the death sentence awarded to the appellant.
            3. Necessary facts, in brief, giving rise to this appeal are that the
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      NAND KISHORE v. STATE OF MADHYA PRADESH                                263
               [R. SUBHASH REDDY, J.]

deceased, a minor girl aged about 8 years, had gone to attend the ‘Mela’     A
along with her younger brother namely Chhunu (PW-4) on 03.02.2013.
It is the case of the prosecution that the appellant who is aged about 50
years then, took away the deceased from the ‘Mela’ and committed
rape and murdered her. Narendra (PW-2) informed the police stating
that his daughter, who had gone to attend the ‘Mela’, has not returned
                                                                             B
home. Upon such complaint, case was registered and investigation
commenced. In the course of investigation one Amit Mourya (PW-1)
informed the Investigating Officer that when he was coming to his shop
from residence, he saw a dog running away with a leg of a child in its
mouth and on being chased, the dog dropped the leg and ran away.
Further, it was the case of the prosecution that in the process of           C
investigation, Investigating Officer found a headless body of the deceased
in the bushes near the ‘Dushera Maidan’, Bhopal. It is alleged that the
left leg of the deceased was found at a distance of 100 ft. and both legs
were fractured. Further, it is noticed that there were severe injuries on
the private parts of the deceased inflicted by the appellant due to which
                                                                             D
the intestine had come out. During the process of investigation the
statement of the appellant was recorded under Ex.P8 and the blood
stained cloths and articles he used for the offence were recovered from
his house. After completing the investigation, the appellant was
chargesheeted for the offence punishable under Sections 363, 366,
376(2)(i) and 302 of the IPC and Sections 5 and 6 of Protection of           E
Children from Sexual Offences Act, 2012.
       4. The trial court, after appreciation of the evidence on record,
which is mainly circumstantial, came to the conclusion that the appellant
has committed rape on the minor girl and murdered her and further, by
recording a finding that the crime committed by the appellant is heinous     F
and barbaric, falls within the category of ‘rarest of rare’ cases, imposed
the death sentence. The appellant is also convicted and sentenced for
the offence punishable under Sections 363, 366, 376(2)(i) of the IPC. In
view of the award of death sentence, the trial court has made a reference
to the High Court for confirmation, as contemplated under Section 366
of the Code of Criminal Procedure (Cr.PC). Questioning the conviction        G
recorded and sentence imposed, the accused has filed appeal in Criminal
Appeal No.798 of 2013 and the High Court has disposed of, by common
judgment, Criminal Reference No.05/2013 and Criminal Appeal No.798/
2013. The High Court, by judgment dated 25.06.2013, while dismissing
the appeal of the appellant, has affirmed the reference confirming the       H
264             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A     death sentence awarded to the appellant.
            5. We have heard learned senior counsel for the appellant, Sri
      Sanjay R. Hegde and also learned counsel appearing for the State Ms.
      Swarupama Chaturvedi.
             6. In this appeal, it is contended by learned counsel for the appellant
B     that though there is no acceptable and convincing evidence to prove the
      guilt of the accused beyond reasonable doubt, the appellant is convicted
      by the trial court based on the circumstantial evidence which is not enough
      to record guilt of the accused. It is submitted that from the evidence on
      record, the prosecution has also failed to prove concept of ‘last seen’. It
C     is further submitted that the trial court as well as High Court has
      committed error in imposing the death sentence upon the appellant without
      examining mitigating circumstances. It is submitted that the sentence
      imposed is illegal and contrary to the legislative mandate under Sections
      235(2) and 354(3) of the Cr.PC. It is contended that without examining
      relevant considerations of legislative policy discernible from Sections
D     354(3) and 235(2) of the Cr.PC, only by recording a finding that the
      incident is barbaric, the trial court and the appellate court have recorded
      that the case of the prosecution falls under ‘rarest of rare’ cases and
      imposed death sentence. It is submitted that all the mitigating
      circumstances which exist were to be considered. The penalty of death
E     imposed is required to be modified.
             7. To support his contention, learned counsel has referred to certain
      cases decided by this Court in identical circumstances. It is specifically
      submitted that relevant aspects, like, the socio-economic background of
      the appellant, lack of criminal antecedents, possiblity of reform, are not
F     considered. It is also brought to the notice of this Court that the local
      Bar Association, Bhopal had refused to represent the appellant, as such,
      the appellant was not represented by counsel before the trial court until
      the date of the framing of the charge. On request made by the appellant
      on the day of framing of charge, for grant of legal aid, trial court has
      requested one Mr. Katyayni to appear and the same day charges were
G     framed and the trial was proceeded with.
            8. On the other hand, learned counsel appearing for the State has
      submitted that though the appellant was convicted based on circumstantial
      evidence, but the evidence adduced is sufficient and consistent. It is
      submitted that PW-4 had identified the accused as the person with whom
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      NAND KISHORE v. STATE OF MADHYA PRADESH                                   265
               [R. SUBHASH REDDY, J.]

the deceased was last seen and PW-4 also identified the accused in the          A
Test Identification Parade. Further, PW-7 has categorically stated in his
deposition that he saw the accused in the company of minor girl wearing
yellow frock at 9 p.m. on 03.02.2013. It is submitted that the said oral
evidence if considered with reference to report of the forensic expert
and medical evidence on record, there is absolutely no infirmity in the
                                                                                B
findings recorded by the trial court convicting the appellant for offences
charged. It is stated, having regard to the nature of the crime, that it is
heinous and barbaric, it falls within the category of ‘rarest of rare’ cases.
It is submitted that having regard to reasons recorded by the trial court,
as confirmed by the High Court, there are no grounds to interfere with
the conviction recorded and sentence imposed on the appellant.                  C
      9. Having heard the learned counsel for the parties, we have
perused the judgment of the trial court and High Court and other material
placed on record.
       10. So far as the conviction is concerned, we are satisfied with
the findings recorded by the trial court which are based on the appreciation    D
of oral and documentary evidence on record.
       11. Though the case totally rests on circumstantial evidence, it is
to be noticed that PW-4 is the brother of the deceased who has
accompanied the deceased to ‘Mela’ on the fateful day, i.e., on
03.02.2013. He has identified the accused in the Test Identification            E
Parade and further he has categorically stated that the appellant took
away the deceased from the ‘Mela’. Further, PW-1 – Amit Mourya,
has deposed that when he was coming from his shop to the residence,
he saw a dog running away with a leg of a child in its mouth and on being
chased it dropped the leg. Further investigation revealed detection of          F
headless body of the deceased in the bushes. Further, PW-7 Abid Qureshi,
has also stated that he had seen the appellant on 03.02.2013 at 9:00 p.m.
with a girl wearing yellow frock. By applying the ‘last seen’ theory to
the facts of the case and further considering the forensic and medical
evidence on record, trial court has rightly recorded guilt of the accused
for the offences alleged. Even the High Court, referring to the relevant        G
evidence on record, has rightly confirmed the conviction of the appellant
for the charges levelled against him.
      12. In this appeal, learned counsel for appellant focussed on death
penality imposed and submitted that the relevant aspects are not
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266               SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A     considered before recording a finding that the case falls in the category
      of ‘rarest of rare’ cases, so as to impose the death penalty. It is the
      specific case of the appellant that several relevant aspects which are
      required to be considered before recording a finding of ‘rarest of rare’
      cases have escaped the attention by the trial court as well as by the
      High Court. It is specifically argued that special reasons, as required
B
      under Section 354(3) of the Cr.PC are not recorded; reasons recorded
      to impose death sentence, cannot be construed as special reasons within
      the meaning of Section 354(3) of the Cr.PC. It is further submitted that
      for the persons convicted of murder, life imprisonment is a rule and
      death sentence is an exception, as observed by a Constitution Bench of
C     this Court in case of Bachan Singh v. State of Punjab1 and further, it is
      submitted, that contrary to the ratio laid down in the aforesaid judgment,
      the focus was on the crime alone though it is the duty of the courts to
      pay heed to the circumstances of the crime as well as the criminal.
      Further, the mitigating circumstances which existed and are to be given
      liberal and expansive interpretation, are omitted from the consideration.
D
      It is further submitted that the sentence of death is to be imposed only in
      cases when the option of life imprisonment is unquestionably foreclosed.
             13. A useful reference can be made to the judgment in this regard
      in the case of Swamy Shradhananda(2) v. State of Karnataka2. In
      the aforesaid judgment, while confirming the conviction for offence under
E     Section 302 of IPC, this Court, having regard to the facts and
      circumstances of the case and considering the evidence on record, has
      substituted the death sentence by imposing imprisonment for life with a
      specific direction that he shall not be released from the prison till the rest
      of his life. In para 92, this Court has observed as under :
F              “92. The matter may be looked at from a slightly different angle.
               The issue of sentencing has two aspects. A sentence may be
               excessive and unduly harsh or it may be highly
               disproportionately inadequate. When an appellant comes to
               this Court carrying a death sentence awarded by the trial court
G              and confirmed by the High Court, this Court may find, as in the
               present appeal, that the case just falls short of the rarest of the
               rare category and may feel somewhat reluctant in endorsing the
               death sentence. But at the same time, having regard to the nature
      1
          (1980) 2 SCC 684
      2
          (2008) 13 SCC 767
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         NAND KISHORE v. STATE OF MADHYA PRADESH                               267
                  [R. SUBHASH REDDY, J.]

         of the crime, the Court may strongly feel that a sentence of life     A
         imprisonment subject to remission normally works out to a term
         of 14 years would be grossly disproportionate and inadequate.
         What then should the Court do? If the Court’s option is limited
         only to two punishments, one a sentence of imprisonment, for all
         intents and purposes, of not more than 14 years and the other
                                                                               B
         death, the Court may feel tempted and find itself nudged into
         endorsing the death penalty. Such a course would indeed be
         disastrous. A far more just, reasonable and proper course would
         be to expand the options and to take over what, as a matter of
         fact, lawfully belongs to the Court i.e. the vast hiatus between 14
         years’ imprisonment and death. It needs to be emphasised that         C
         the Court would take recourse to the expanded option primarily
         because in the facts of the case, the sentence of 14 years’
         imprisonment would amount to no punishment at all.”
       In the case of Neel Kumar v. State of Haryana3 which is a case
of rape and murder of a minor, while confirming the conviction, this           D
Court, on the facts and circumstances of the case and having regard to
the evidence on record, has modified the death sentence with award of
life imprisonment and directed that the accused must serve a minimum
of 30 years of jail without remission. Paragraphs 37, 38 and 39 of the
said judgment read as under :
                                                                               E
         “37. A three-Judge Bench of this Court in Swamy Shraddananda
         (2) v. State of Karnataka (2008) 13 SCC 767, considering the
         facts of the case, set aside the sentence of death penalty and
         awarded the life imprisonment but further explained that in order
         to serve the ends of justice, the appellant therein would not be
         released from prison till the end of his life.                        F

         38. Similarly, in Ramraj v. State of Chhattisgarh (2010) 1 SCC
         573, this Court while setting aside the death sentence made a
         direction that the appellant therein would serve minimum period
         of 20 years including remissions earned and would not be released
         on completion of 14 years’ imprisonment.                              G
         39. Thus, in the facts and circumstances of the case, we set aside
         the death sentence and award life imprisonment. The appellant

3
    (2012) 5 SCC 766
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268             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A           must serve a minimum of 30 years in jail without remissions, before
            consideration of his case for premature release.”
             In the case of Selvam v. State4 which is a case involving murder
      and rape of a child aged about 9 years, without interferring with the
      finding of conviction, this Court, in the facts and circumstances of the
B     case and considering the evidence on record, imposed a sentence of 30
      years in jail without remission. In the case of Tattu Lodhi v. State of
      Madhya Pradesh5 in a case involving kidnapping of minor girl aged
      about 7 years and attempt to rape and murder, in the facts of the case
      and the evidence on record, death sentence was modified to imprisonment
      for life with a direction not to release the accused from prison till he
C     completes actual period of 25 years of imprisonment. Further, in the
      case of Raj Kumar v. State of Madhya Pradesh 6 in similar
      circumstances, this Court has modified death sentence and awarded life
      imprisonment and directed the appellant therein to serve a minimum of
      35 years in jail without remission. Further, in the case of Anil v. State of
D     Maharashtra7 where in a case involving murder of a 10 year old boy
      who was subjected to carnal intercourse, this Court has held as under :
            36. The legislative policy is discernible from Section 235(2) read
            with Section 354(3) CrPC, that when culpability assumes the
            proportions of depravity, the Court has to give special reasons
E           within the meaning of Section 354(3) for imposition of death
            sentence. A legislative policy is that when special reasons do
            exist, as in the instant case, the Court has to discharge its
            constitutional obligations and honour the legislative policy by
            awarding appropriate sentence, that is, the will of the people. We
            are of the view that incarceration for a further period of thirty
F           years, without remission, in addition to the sentence already
            undergone, will be an adequate punishment in the facts and
            circumstances of the case, rather than death sentence. Ordered
            accordingly.”
            14. The learned counsel appearing for the State has placed reliance
G     on the judgment of this Court in the case Mukesh & Anr. v. State (NCT
      4
        (2014) 12 SCC 274
      5
        (2016) 9 SCC 675
      6
        (2014) 5 SCC 353
      7
        (2014) 4 SCC 69
      8
        (2017) 6 SCC 1
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       NAND KISHORE v. STATE OF MADHYA PRADESH                                   269
                [R. SUBHASH REDDY, J.]

of Delhi) & Ors.8 [known as Nirbhaya case] in support of her case and            A
submitted that applying the ratio laid down in the aforesaid judgment, the
case falls in the ‘rarest of rare’ cases attracting death penalty. With
reference to above said arguments of learned counsel for the State, it is
to be noticed that the case of Mukesh (supra) is distinguishable on the
facts from the case on hand. It is to be noticed that Mukesh (supra) is
                                                                                 B
a case of gang-rape and murder of the victim and an attempt to murder
of the male victim. It was the specific case of the prosecution that the
crimes were carried out pursuant to a conspiracy and the accused were
convicted under Section 120-B of the IPC apart from other offences.
Further, as a fact, it was found in the aforesaid case that the accused-
Mukesh had been involved in other criminal activity on the same night.           C
Further, it is also to be noticed that in the aforesaid case, there was a
dying declaration, eye witness to the incident etc. So far as the present
case is concerned, it solely rests on circumstantial evidence. It is the
specific case of the appellant that he was denied the proper legal
assistance in the matter and he is a manhole worker. The appellant was
                                                                                 D
aged about 50 years. Further, in this case there is no finding recorded by
the courts below to the effect that there is no possibility of reformation
of the appellant. We are of the view that the reasons assigned by the
trial court as confirmed by the High Court, do not constitute special
reasons within the meaning of Section 354(3) of the Cr.PC to impose
death penalty on the accused. Taking into account the evidence on                E
record and the totality of the circumstances of the case, and by applying
the test on the touchstone of case law discussed above, we are of the
view that the case on hand will not fall within the ‘rarest of rare’ cases.
In that view of the matter, we are of the view that the death sentence
imposed by the trial court, as confirmed by the High Court, requires
                                                                                 F
modification. Accordingly, this appeal is allowed in part; while confirming
the conviction, recorded by the trial court, as confirmed by the appellate
court, we modify the sentence to that of life imprisonment with actual
period of 25 years, without any benefit of remission. It is further made
clear that sentences imposed for all offences shall run concurrently.
                                                                                 G

Nidhi Jain                                              Appeal partly allowed.




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