NEEL KUMAR @ ANIL KUMARversusTHE STATE OF HARYANA

                         [2012] 5 S.C.R. 696


A                  NEEL KUMAR @ ANIL KUMAR
                                   v.
                     THE STATE OF HARYANA
                 (Criminal Appeal No. 523 of 2010)

                             MAY 7, 2012
8
         [DR. 8.5. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

          Penal Code, 1860 - ss. 302, 376(2)(f) and 201 - Rape
C   and murder -Allegation that appellant raped his 4 year old
    daughter and thereafter murdered her- FIR lodged by victim's
    mother (i.e. appellant's wife) -Trial court enumerated number
    of incriminating circumstances against the appellant and
    convicted him - High Court affirmed the conviction - On
D   appeal, held: Appellant was guardian of the child and was duty
    bound to safeguard the victim - He kept mum and did not give
    any information to any law enforcing agency or even to the
    mother of the victim - If somebody else would have committed
    the offence it was but natural that appellant would have taken
E   steps to initiate legal action to find out the culprit - Silence
    on his part in spite of such grave harm to his daughter was
    again a very strong incriminating circumstance against him -
    The provisions of s. 106 of the Evidence Act, 1872 were fully
    applicable in this case - A shirt and pant belonging to
F   appellant recovered on the basis of his disclosure statement
    and taken into possession were sent to the FSL for
    examination - Report' of FSL showed that shirt and pant of the
    appellant were stained with blood - However, no explanation
    was given by appellant as to how the blood was present on
G   his clothes - Recovery of incriminating material at his
    disclosure statemimt, duly proved, was a very positive
    circumstance against him - No cogent reason to take a view
    different from the vi1~w taken by the courts below - Conviction
    accordingly upheld - Evidence Act, 1872 - s.106.

H                                696
    NEEL KUMAR @ ANIL KUMAR v. STATE OF                    697
                HARYANA
     Sentence I Sentencing - Father (appellant) raping and         A
murdering his 4 year old daughter - Conviction of appellant
ulss. 302, 376(2)(f) and 201 /PC and death sentence imposed
by Courts below - Conviction upheld by Supreme Court -
Question regarding imposition of death sentence on appellant
- Held: So far as the sentence part is concerned, the case         B
does not fall within the rarest of rare cases - But, considering
the nature of offence, age and relationship of the victim with
the appellant and gravity of injuries caused to her, appellant
cannot be awarded a lenient punishment - In the facts and
circumstances of the case, death sentence set aside and life       c
imprisonment imposed, however, appellant directed to serve
a minimum of 30 years in jail without remissions, before
consideration of his case for pre-mature release - Penal Code,
1860 - ss. 302, 376(2)(f) and 201.

      Sentence I Sentencing - Death sentence - When D
warranted - Held: The extreme penalty of death need not be
inflicted except in gravest cases of extreme culpability - Before
opting for death penalty the circumstances of the offender also
require to be taken into consideration alongwith the
circumstances of the crime for the reason that life E
imprisonment is the rule and death sentence is an exception
- The penalty of death sentence may be warranted only in a
case where the court comes to the conclusion that imposition
of life imprisonment is totally inadequate having regard to the
relevant circumstances of the crime - The balance sheet of F
aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be struck
between the aggravating and mitigating circumstances before
option is exercised - For awarding the death sentence, there G
must be existence of aggravating circumstances and the
consequential absence of mitigating circumstances - As to
whether death sentence should be awarded, would depend
upon the factual scenario of the case in hand.
                                                                   H
    698      SUPREME COURT REPORTS              [2012] 5 S.C.R.

A        Code of Criminal Procedure, 1973 - s. 313 - Statement
    under - Duty of accused - Held: It is the duty of the accused
    to explain the incriminating circumstance proved against him
    while making a statement u/s.313 CrPC - Keeping silent and
    not furnishing any explanation for such circumstance is an
s   additional link in the chain of circumstances to sustain the
    charges against him.

         The prosecution c:ase was that the appellant raped
    his 4 year old daughter and thereafter killed her. The
    appellant's wife (PW.3) lodged the FIR giving the complete
C   version regarding both the criminal acts i.e. rape as well
    as murder. The trial court enumerated incriminating
    circumstances against the appellant as under: (i) The
    victim was in custody of appellant; (ii) No explanation
    from the side of appellant as to how such severe injuries
D   were suffered by the victim and how she met with death
    as these facts were in his special knowledge alone. (Ill)
    Non information of the crime by appellant to the police
    or other members of the family; (iv) Recovery of blood
    stained clothes of the victim and the appellant from
E   possession of appellaint on his disclosure statement; (v)
    presence of blood 01r1 the clothes of appellant and no
    expla.nation thereof; (,vi) abscondence of appellant after
    the occurrence and (vii) strong motive against appellant
    for murder as charges of rape were being raised against
F   him and accordingly convicted the appellant under
    Sections 302, 376(2)(f) and 201 IPC and awarded death
    sentence. The High C:ourt affirmed the conviction of the
    appellant as also the death sentence. Hence the present
    appeal.
G
          Disposing of the appeal, the Court

      HELD: 1. The provisions of Section 106 of the Indian
  Evidence Act, 1872 were fully applicable in this case.
  Appellant was guardian of the child and was duty bound
H to safeguard the victim. The accused had kept mum and
    NEEL KUMAR @ ANIL KUMAR v. STATE OF                    699
                 HARYANA
had not given any information to any law enforcing                A
agency or even to the mother of the victim. It comes out
from the statement of PW.3 that the information about
rape and murder to her was telephonically given by co-
accused 'R'. If somebody else would have committed the
offence it was but natural that appellant must have taken         B
steps to initiate the legal action to find out the culprit. The
silence on his part in spite of such grave harm to his
daughter is again a very strong incriminating
circumstance against him. The High Court has agreed
with the findings recorded by the trial court and                 c
confirmed the death sentence after re-appreciating the
evidence. The courts below· have taken a correct view so
far as the application of Section 106 of the Evidence Act
is concerned. [Paras 16, 17] [709-C-G]

    Prithipal Singh & Ors. v. State of Punjab & Anr. (2012) 1     D
SCC 10; Santosh Kumar Singh v. State through CBI (2010)
9 SCC 747: 2010 (13) SCR 901 and Manu Sao v. State of
Bihar (2010) 12 SCC 310: 2010 (8) SCR 811 - relied on.

     State of West Bengal v. Mir Mohammad Omar & Ors.             E
etc.etc. AIR 2000 SC 2988: 2000 (2) Suppl. SCR 712;
Sahadevan @ Sagadevan v. State rep. by Inspector of Police,
Chennai AIR 2003 SC 215: 2003 (1) SCC 534 - referred to.

    2. A shirt and pant belonging to the appellant
recovered on the basis of his disclosure statement (Ext.          F
P23) and taken into possession vide Memo Ext. P25 were
sent to the FSL for examination. Report of FSL (Ext.P18)
shows that shirt and pant of the appellant were stained
with blood. However, no explanation has been given by
the appellant as to how the blood was present on his              G
clothes. It is the duty of the accused to explain the
incriminating circumstance proved against him while
making a statement under Section 313 Cr.P.C. Keeping
silence and not furnishing any explanation for such
circumstance is an additional link in the chain of                H
    700      SUPREME COURT REPORTS              [2012] 5 S.C.R.


A circumstances to sustain the charges against him.
  Recovery of incriminating material at his disclosure
  statement, duly proved, is a very positive circumstance
  against him. There is no cogent reason to take a view
  different from the vie~w taken by the courts below. [Paras
B 18, 19, 20] (710-F-G; 711-A-D]
        Pradeep Singh v. State of Rajasthan AIR 2004 SC 3781:
   2004 (10) SCC 743 and Aftab Ahmad Anasari v. State of
   Uttaranchal AIR 20101 SC 773: 2010 (1) SCR 1027 - relied
C on.
          3.1. The extreme penalty of death rieed not be
  inflicted except in ~1ravest cases of extreme culpability.
  Before opting for th1e death penalty the circumstances of
  the offender also re,quire to be taken into consideration
D alongwith the circumstances of the crime for the reason
  that life imprisonmEmt is the rule and death sentence is
  an exception. The penalty of death sentence may be
  warranted only in a case where the court comes to the
  conclusion that imposition of life imprisonment is totally
E inadequate having regard to the relevant circumstances
  of the crime. The balance sheet of aggravating and
  mitigating circumstances has to be drawn up and in
  doing so the mitigating circumstances have to be
  accorded full weightage and a just balance has to be
F struck between the aggravating and mitigating
  circumstances before option is exercised. (Para 21] [711-
  E-G]

       3.2. It is evident that for awarding the death sentence,
  there must be exi!;tence of aggravating circumstances
G and the consequential absence of mitigating
  circumstances. As to whether death sentence should be
  awarded, would depend upon the factual scenario of the
  case in hand. Ther,e is no reason to disbelieve the above
  evidence and circumstances nor there is any reason to
H doubt the commission of offence by the appellant and the
    NEEL KUMAR @ ANIL KUMAR v. STATE OF               701
                 HARYANA
recovery of incriminating material on his disclosure          A
statement. The incriminating circumstances taken into
consideration by the courts below can reasonably be
inferred. However, so far as the sentence part is
concerned, the case does not fall within the rarest of rare
cases. But, considering the nature of offence, age and        B
relationship of the victim with the appellant and gravity
of injuries caused to her, appellant cannot be awarded a
lenient punishment. In the facts and circumstances of the
case, the death sentence is set aside and life
imprisonment is imposed, however, the appellant must          c
serve a minimum of 30 years in jail without remissions,
before consideration of his case for pre-mature release.
[Paras 24, 27] [713-D-G; 714-C]

    State of Maharashtra v. Goraksha Ambaji Adsul AIR
2011 SC 2689: 2011 (9) SCR 41; Bachan Singh v. State of       D
Punjab AIR 1980 SC 898; Machchi Singh & Ors. v. State of
Punjab AIR 1983 SC 957: 1983 (3) SCR 413; Devender Pal
Singh v. State NCT of Delhi & Anr. AIR 2002 SC 1661: 2002
(2) SCR 767; Haresh Mohandas Rajput v. State of
Maharashtra (2011) 12 SCC 56; Swami Shraddananda@             E
Murali Manohar Mishra v. State of Karnataka AIR 2008 SC
3040: 2008 (11) SCR 93 Ramraj v. State of Chattisgarh AIR
2010 SC 420: 2009 (16 ) SCR 367 - relied on.

                    Case Law Reference:                       F
    (2012) 1 sec 10            relied on         Para 17
    2000 (2) Suppl. SCR 712 referred to          Para 17
    2003 (1) sec 534           referred to       Para 17
                                                              G
    2010 (13) SCR 901          relied on         Para 17
    2010 (8) SCR 811           relied on         Para 17
    2004 (10) sec 743          relied on         Para 19
                                                              H
    702      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A         20·10 (1) SCR 1027         relied on           Para 19
          2011 (9) SCR 41            relied on           Para 22
          AIR 1980 SC 898            relied on           Para 22
          1983 (3) SCR 413           relied on          Para 22
B
          2002 (2) SCR 767'          relied on          Para 22

          2011 (12) sec 56           relied on          Para 23

          2008 (11) SCR 9~1          relied on          Para 25
c
          2009 (16 ) SCR 367         relied on          Para 26

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 523 of 2010.

D       From the Judgment & Order dated 17.07.2009 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 2fi8/DB of 2009 in Murder Reference No. 1/09.

          Shekhar Prit Jha, Vikrant Bhardwaj for the Appellant.

E        K.amal Mohan Gupta, Sanjeev Kumar, Gaurav Teotia for
    the R1~spondent.

          The Judgment of the Court was delivered by

        DR. B. S. CHAUHAN, J. 1. This criminal appeal has been
F preferred against the judgment and order dated 17.7.2009
  passed by the High Court of Punjab and Haryana at Chandigarh
  in Criminal Appeal No. 268-DB of 2009, by which it has
  affirmed the conviction of the appellant under Sections 302/
  376(2)(f) and 201 of Indian Penal Code, 1860 (hereinafter
G referred as 'IPC') and accepted the death reference made by
  the Additional Sessions Judge, Yamuna Nagar at Jagadhari
  vide judgments and orders dated 2.3.2009/6.3.2009 and
  confirmed the sentence of death.

H
     NEEL KUMAR @ ANIL KUMAR v. STATE OF                    703
         HARYANA [DR. B.S. CHAUHAN, J.)
     2. Facts and circumstances giving rise to this appeal are     A
that:

    A. Smt. Roopa Devi (PW.3) wife of Neel Kumar @ Anil
Kumar - appellant, had gone to her parental home at village
Kesri alongwith her minor son on 26.6.2007 leaving her two         8
children i.e. Sanjana, daughter, 4 years old and Vishal, son, 2
years old at her matrimonial home with her husband - appellant.
She had to return back on the same day but could not return
and stayed at her parental home. On the same day, she
received information by telephone at 4.00 p.m. from her brother-   C
in-law Ramesh Kumar that her husband had committed rape
upon her 4 years old daughter Sanjana. Roopa Devi (PW.3)
came back to her matrimonial home on the next day i.e.
27.6.2007 alongwith 5-7 persons including her family members
and neighbours and found her daughter Sanjana, victim, in an
injured condition. The Panchayat was convened to resolve the       D
problems. However, the Panchayat could not resolve the
dispute, therefore, Roopa Devi (PW.3), complainant, returned
to her parental home alongwith accompanying persons leaving
her injured daughter Sanjana and son Vishal in the custody of
the appellant at her matrimonial home. Roopa Devi (PW.3)           E
wanted to take her injured daughter for medical help, but the
appellant and his family members restricted her and even tried
to snatch her 15 days old son from her.

     B. Roopa Devi (PW.3) received a telephone call again          F
from her brother-in-law Ramesh Kumar on 28.6.2007 informing
her that appellant had killed her daughter Sanjana. She came
there alongwith her brother Gulla (PW.4) and lodged the report
to P.S. Bilaspur against the appellant for committing the rape
on her 4 years old daughter Sanjana on 26.6.2007 and against       G
her brother-in-laws and appellant for committing her murder on
27/28.6.2007 and concealing her dead body. Thus, on her
complaint, a case under Sections 376(2)(f), 302, 201/34 IPC
vide FIR No. 91 dated 28.6.2007 at Police Station Bilaspur
(Haryana) was registered.
                                                                   H
    704       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A      C. Immediately, thereafter, on the same day i.e. 28.6.2007,
  on the application moved by the Investigation Officer, the
  Deputy Commissioner, Yamuna Nagar, authorised Shri
  Narender Singh, SOM, Jagadhari to pass an order of
  exhumation of the dead body from the graveyard and on such
B order being passed, thE~ dead body was recovered from the
  graveyard. It was photographed and an inquest report was
  prepared. Dead body was sent for post-mortem examination.
  The requisite plan of place of recovery of dead body was
  prepare!d. The Investigating Officer inspected the place of
c occurrence on 29.6.2007 and prepared the site plan. The
  appellant and his brothers were arrested on 30.6.2007.
  Appellant was medically examined and on his disclosure
  statement, the lnvestigat1ing Officer recovered one blood stained
  bed sheet from his house and further a gunny bag containing
  one Pajama, blood stained piece of cloth, pant, shirt and one
0
  pillow from a rainy culvert near Majaar of Peer on Kapal
  Machan Road (Exts. P-:23 and P-25).

       D. After filing the chargesheet, the case was committed
  to the Court of Sessions and on conclusion of the trial, the
E learned Sessions Judge vide judgment and order dated
  2.3.2009 acquitted all other co- accused but convicted the
  appellant under Sections 302, 376(2)(f) and 201 IPC and vide
  order dated 6.3.2009 awarded death sentence under Section
  302 IPC:, life imprisonment under Section 376(2)(f) IPC and
F rigorous imprisonment for 3 years for the offence under Section
  201 IPC.

      E. Being aggrieved, the appellant preferred Criminal
  Appeal No. 268-DB of 2:009 in the High Court of Punjab and
G Haryana at Chandigarh, which was dismissed by the impugned
  judgment and order dated 17.7.2009 confirming the death
  sentence upon referencH.

          Hence, this appeal.

H         3. Mr. Shekhar Prit .Iha, learned counsel appearing for the
     NEEL KUMAR @ ANIL KUMAR v. STATE OF                       705
        HARYANA [DR. B.S. CHAUHAN, J.]
appellant, has submitted that appellant has falsely been               A
enroped in the offence by the complainant Roopa Devi (PW.3)
as the relationship between the husband and wife had been
very strained. Even, subsequently, she filed divorce petition
against the appellant. It is quite unnatural that once the
complainant Roopa Devi (PW.3) had come from her parental               B
house to her matrimonial home, then, on being informed about
the rape by the appellant upon their minor daughter of 4 years
of age, the complainant would go back to her parental house
leaving the girl in the custody of the appellant and that too, when
she was suffering from serious vaginal injuries. Since, the            c
evidence of the complainant and her brother Gulla (PW.4) has
been disbelieved in respect of four brothers of the appellant
and they have been acquitted, the same evidence could not
have been relied upon for convicting the appellant. When the
complainant left for her parental house on 27.6.2007, the              D
children had been in the custody of appellant's brother Ramesh
Kumar and, therefore, there was· no possibility of the appellant
committing Sanjana's murder. It is by no means a case which
falls in the category of rarest of rare cases warranting the death
sentence. The appeal deserves to be allowed.
                                                                       E
     4. On the contrary, Mr. Kamal Mohan Gupta, learned
counsel appearing for the respondent State, has vehemently
opposed the appeal contending that the appellant has
committed most heinous crime, if he can commit the rape of
his own 4 years old daughter, the society cannot be                    F
safeguarded from such a person. The manner in which the
offence has been committed and the nature of injuries caused
to the prosecutrix makes it evident that it is a rarest of rare case
wherein no punishment other than death sentence could be
awarded, thus, the appeal lacks merit and is liable to be              G
dismissed.

     5. We have considered the rival submissions made by
learned counsel for the parties and perused the record. ·

     6. Smt. Roopa Devi (PW.3), complainant has lodged the             H
    706       SUPREME COURT REPORTS                   [2012] 5 S.C.R.

A FIR dated 28.6.2007, giving the complete version regarding
  both the criminal acts i.e. rape as well as murder of Sanjana.
  This witness also gave details of the Panchayat convened to
  resolve the dispute and as the same was not resolved, Roopa
  Devi (PW.3), complainant, went back to her parental home
B leaving the two minor children with appellant. She came back
  on receiving the information about the death of her daughter
  next day and lodged the complaint. On the basis of the said
  complaint, FIR was registered on 28.6.2007 at 3.20 p.m. and
  investigation ensued. There is evidence on record to show that
c after getting the pEHmission on the order of Deputy
  Commissioner, Yamuna Nagar, the SOM concerned passed
  the order of exhumation of the dead body of Sanjana and it was
  sent for post-mortem examination. The post-mortem report
  suggested the following injuries on her body:
D         "Lacerated wound present in vagina extending from anus
          to urethral opening1 admitting four fingers of size 6 x 4 ems.
          Underlying muscles and ligaments were exposed and
          anus was also torned and on dissection uterus was
          perforated in the abdomen".
E
       7. The prosecution case has been supported by Gulla
  (PW.4), brother of the complainant, and further got support from
  the contents of the divorce petition filed by Roopa Devi (PW.3)
  complainant, subsequently, wherein it had clearly been stated
F that the appellant had raped and murdered their 4 years old .
  daughter Sanjana and in that respect, the case was pending
  in the criminal court. The recoveries had been made by Shri
  Suraj Bhan (PW.17), Investigating Officer on the basis of
  disclosure statement made voluntarily by the appellant.

G      8. Accused Ramesh Kumar, brother of the appellant who
  had also faced trial had supported the case of the prosecution
  to the extent that he informed Roopa Devi (PW.3), complainant
  at Kesri about the commission of rape by the appellant on his
  daughter and further deposed that on hearing such a news she
H had come to Bilaspur.
     NEEL KUMAR @ ANIL KUMAR v. STATE OF                    707
         HARYANA [DR. B.S. CHAUHAN, J.]
     9. Dr. Ashwani Kashyap (PW.2) conducted autopsy on the        A
dead body of the deceased victim and as per his testimony
and the post- mortem report (Ext.P3) the cause of death was
asphyxia because of throttling which was ante-mortem in nature
and sufficient to cause death in ordinary course of events. He
also found vaginal and anal wounds on the deceased.                B

     10. Dr. Rajeev Mittal (PW.1) medically examined the
appellant and as per his report there was no external injury on
the genitals of the appellant. However, he opined that mere
absence of injury on private parts of the appellant was no
ground to draw an inference that he had not committed forcible     C
sexual intercourse with the victim.

     11. Mukesh Garg (PW.11 ), Sarpanch of village Bilaspur
has stated that the S.H.O. has narrated the facts of the case to
him and the exhumation of the dead body from the graveyard         D
was done in pursuance of the order of the SOM, Jagadhari. The
dead body had been buried by Neel Kumar (appellant) after
committing rape and murder of the victim. Thus, this witness
was associated in the investigation at the time of exhumation
of the dead body.                                                  E

     12. Narender Singh (PW.12), SOM proved the report of
ex-humation of the dead body (Ext. P11) and stated that he
carried out the same on getting the direction from the Deputy
Commissioner. lsh Pal Singh (PW.15), Head Constable and
Joginder Singh (PW.16) have supported the prosecution case         F
being the witnesses of arrest and recovery of incriminating
material at the voluntary disclosure statement of the appellant.

     13. Madan (PW.14) was examined by the prosecution as
an eye-witness for the murder of Sanjana. However, he turned       G
hostile and he did not support the case of the prosecution.

      14. Suraj Bhan (PW.17), Investigating Officer deposed that
he had recovered the dead body from the graveyard on the
written permission of the SOM and the same was sent for the        H
    708       SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   post-mortem after preparing the inquest report under Section
    174 of Code of Crimi nail Procedure, 1973 (hereinafter called
    'Cr.P.C.') He had recorded the statement of witnesses under
    Section 161 Cr.P.C. He inspected the spot of occurrence on
    29.6.2007, prepared the site plan and on the next day i.e. on
B   30.6.2007, arrested the appellant alongwith his brothers. It was
    at that time the appellant in interrogation made disclosure
    statement (Ext. P-23) and in pursuance thereof, he recovered
    the incriminating material as referred to hereinabove. The said
    articles were taken into possession vide recovery memo Ext.
C   P-25 and sent for FSL re!port. Subsequently, the positive report
    was rec:eived.

        15. The trial court found the testimonies of Roopa Devi
  (PW.3) complainant, Gulla (PW.4), maternal uncle of the victim,
  Dr. Ashwani Kashyap i(PW.2), Dr. Rajiv Mittal (PW.1) fully
D reliable and came to the conclusion that it was quite natural that
  Sanjana deceased could have made oral dying declaration
  before her mother Roopa Devi (PW.3), complainant. However,
  even if it is ignored, there were various circumstances against
  the appellant. The court enumerated the said incriminating
E circumstances as under:

          (I) The victim was in the custody of accused Neel Kumar
          @ Anil Kumar.

          (II) No explanation from the side of this accused as to how
F         such severe injuries were suffered by the victim and how
          she met with death as these facts were in his special
          knowledge alone.

          (Ill) Non information of the crime by the accused to the
G         police or other members of the family.

          (IV) Recovery of the blood stained clothes of the victim and
          the accused from the possession of accused on his
          disclosure statement.
H
     NEEL KUMAR @ ANIL KUMAR v. STATE OF                        709
         HARYANA [DR. B.S. CHAUHAN, J.]
     (V) Presence of blood on the clothes of the accused and            A
     no explanation thereof.

     (VI) Abscondance of the accused after the occurrence.

     (VII) Strong motive against the accused for murder as
     charges of rape were being raised against him.                     B

     16. The learned Sessions Court further remarked that as
the victim was in the custody of the appellant, there had been
no explanation from the side of the accused as to how such
severe injuries were suffered by the victim and how she met             c
with death as these facts were in his special knowledge alone.
The provisions of Section 106 of the Indian Evidence Act, 1872
(hereinafter called 'Evidence Act') were fully applicable in this
case. Appellant was guardian of the child and was duty bound
to safeguard the victim. The accused had kept mum and had               D
not given any information to any law enforcing agency or even
to the mother of the victim. It comes out from the statement of
Roopa Devi (PW.3) that the information about rape and murder
to her was telephonically given by co-accused Ramesh Kumar.
If somebody else would have committed the offence it was but            E
natural that appellant Neel Kumar@ Anil Kumar must have
taken steps to initiate the legal action to find out the culprit. The
silence on his part in spite of such grave harm to his daughter
is again a very strong incriminating circumstance against him.

     The High Court has agreed with the findings recorded by            F
the trial court and confirmed the death sentence after re-
appreciating the evidence.

     17. In our opinion, the courts below have taken a correct
view so far as the application of Section 106 of the Evidence           G
Act is concerned. This Court in Prithipal SingfJ & Ors. v. State
of Punjab & Anr. (2012) 1 SCC 10, considered the issue at
length placing reliance upon its earlier judgments including
State of West Bengal v. Mir Mohammad Omar & Ors. etc.etc.,
AIR 2000 SC 2988; and Sahadevan @ Sagadevan v. State                    H
    710       SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A   rep. by Inspector of Police, Chennai, AIR 2003 SC 215 and
    held as under:

          'That if fact is especially in the knowledge of any person,
          then burden of proving that fact is upon him. It is
          impossible for the prosecution to prove certain facts
B
          particularly within the knowledge of the accused. Section
          106 is not intended to relieve the prosecution of its burden
          to prove the guilt of the accused beyond reasonable doubt.
          But the section would apply to cases where the
          prosecution has succeeded in proving facts from which a
c         reasonable inference can be drawn regarding the
          existence of certain other facts, unless the accused by
          virtue of his special knowledge regarding such facts, failed
          to offer any explanation which might drive the court to draw
          a different infere:nce. Section 106 of the Evidence Act is
D         designed to meet certain exceptional cases, in which, it
          would be impossible for the prosecution to establish
          certain facts which are particularly within the knowledge of
          the accused".

E   (See also: Santosh Kumar Singh v. State through CBI, (2010)
    9 SCC 747; and Manu Sao v. State of Bihar, (2010) 12 SCC
    310).

        Thus, findings recorded by the courts below in this regard
    stand fortified by the aforesaid judgments.
F
       18. A shirt and pant belonging to the appellant recovered
  on the basis of his disclosure statement (Ext. P23) and taken
  into possession vide Memo Ext. P25 were sent to the FSL for
  examination. Report of FSL (Ext.P18) shows that shirt and pant
G of the appellant were stained with blood. However, no
  explanation has been given by the appellant as to how the blood
  was present on his clothes.

      19. In Prade,ep Singh v. State of Rajasthan AIR 2004 SC
H 3781, accused had not given any explanation for the presence
     NEEL KUMAR @ ANIL KUMAR v. STATE OF                      711
         HARYANA [DR. B.S. CHAUHAN, J.]
of blood stains on his pant and shirt. He had simply pleaded          A
false implication. Presence of blood on his clothes was found
to be incriminating circumstance against him.

     It is the duty of the accused to explain the incriminating
circumstance proved against him while making a statement              8
under Section 313 Cr.P.C. Keeping silent and not furnishing
any explanation for such circumstance is an additional link in
the chain of circumstances to sustain the charges against him.
Recovery of incriminating material at his disclosure statement
duly proved is a very positive circumstance against him. (See         C
also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010
SC 773).

     20. In view of the above, we do not find any cogent reason
to take a view different from the view taken by the courts below
and this leads us to the further question regarding the sentence      D
as to whether it could be a rarest of rare case where imposition
of death penalty is warranted.

     21. The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability. Before opting         E
for the death penalty the circumstances of the offender also
require to be taken into consideration alongwith the
circumstances of the crime for the reason that life imprisonment
is the rule and death sentence is an exception. The penalty of
death sentence may be warranted only in a case where the
                                                                      F
court comes to the conclusion that imposition of life
imprisonment is totally inadequate having regard to the relevant
circumstances of the crime. The balance sheet of aggravating
and mitigating circumstances has to be drawn up and in doing
so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the             G
aggravating and mitigating circumstances before option is
exercised.

     22. After considering the issue at length, this court in State
                                                                      H
    712        SUPREME COUl~T REPORTS                    [2012] 5 S.C.R.


A   of Maharashtra v. Goraksl1a Ambaji Adsul, AIR 2011 SC 2689,
    held as under:

          "Awarding of death sentence amounts to taking away the
          life of an individual, which is the most valuable right
B         available, whether viewed from the constitutional point of
          view or from the human rights point of view. The condition
          of providing special reasons for awarding death penalty is
          not to be construed linguistically but it is to satisfy the basic
          features of a reasoning supporting and making award of
          death penalty unquestionable. The circumstances and the
c         manner of committing the crime should be such that it
          pricks the judicial conscience of the court to the extent that
          the only and inevitable conclusion should be awarding of
          death penalty."

D (See also: Bachan Singh v. State of Punjab AIR 1980 SC 898;
  Machchi Singh & Ors. v. State of Punjab AIR 1983 SC 957;
  and Devender Pal Singh v. State NCT of Delhi & Anr. AIR
  2002 SC 1661).

E       23. A similar view has been taken by this Court in Haresh
    Mohandas Rajput v. State of Maharashtra (2011) 12 SCC 56
    observing as under:

          "The rarest of the rare case" comes when a convict would
          be a menace and threat to the harmonious and peaceful
F         coexistence of the society. The crime may be heinous or
          brutal but may not be in the category of "the rarest of the
          rare case". There must be no reason to believe that the
          accused cannot bE3 reformed or rehabilitated and that he
          is likely to continue criminal acts of violence as would
G         constitute a continuing threat to the society. The accused
          may be a menace to the society and would continue to be
          so, threatening its peaceful and harmonious coexistence.
          The manner in whijch the crime is committed must be such
          that it may result in intense and extreme indignation of the
H         community and shock the collective conscience of the
     NEEL KUMAR @ ANIL KUMAR v. STATE OF                        713
         HARYANA [DR. B.S. CHAUHAN, J.]
     society. Where an accused does not act on any spur-of-             A
     the-moment provocation and indulges himself in a
     deliberately planned crime and [pic]meticulously executes
     it, the death sentence may be the most appropriate
     punishment for such a ghastly crime. The death sentence
     may be warranted where the victims are innocent children           s
     and helpless women. Thus, in case the crime is committed
     in a most cruel and inhuman manner which is an extremely
     brutal, grotesque, diabolical, revolting and dastardly
     manner, where his act affects the entire moral fibre of the
     society e.g. crime committed for power or political                c
     ambition or indulging in organised criminal activities, death
     sentence should be awarded."

     24. Thus, it is evident that for awarding the death sentence,
there must be existence of aggravating circumstances and the
consequential absence of mitigating circumstances. As to                D
whether death sentence should be awarded, would depend
upon the factual scenario of the case in hand.

      The instant case is required to be examined in the light of
the aforesaid settled legal propositions. There is no reason to         E
disbelieve the above evidence and circumstances nor there is
any reason to doubt the commission of offence by the appellant
and the recovery of incriminating material on his disclosure
statement. The incriminating circumstances taken into
consideration by the courts below can reasonably be inferred.           F
However, so far as the sentence part is concerned, in view of
the law referred to hereinabove, we are of the considered
opinion that the case does not fall within the rarest of rare
cases. However, considering the nature of offence, age and
relationship of the victim with the appellant and gravity of injuries   G
caused to her, appellant cannot be awarded a lenient
punishment.

   25. A three Judge Bench of this Court in Swami
Shraddananda @ Murali Manohar Mishra v. State of
Kamataka, AIR 2008 SC 3040, considering the facts of the                H
     714      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A case, set aside the sentence1 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.

        26. Similarly, in Ramraj v. State of Chattisgarh, AIR 2010
8
    SC 420, 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.
c         27. Thus, in the facts and circumstances of the case, we
     set aside the death sentence and award life imprisonment. The
     appellant must serve a minimum of 30 years in jail without
    .remissions, before consicleration of his case for pre-mature
     release.
D
           28. The appeal stands disposed of.

    8.8.8.                                      Appeal disposed of.