RAM DEO PRASADversusSTATE OF BIHAR

                        [2013] 6 S.C.R. 108


A                       RAM DEO PRP,SAD
                                 v.
                         STATE OF BIHAR
                {Criminal Appeal No.1~•54 of 2012)
                          APRIL 11, 2013
B
     [AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.)

       Penal Code, 1860 - ss. 376 and 302 - Rape and murder
  of 4 years old child - Conviction and death sentence by
c courts below - On appeal, held: It is established that child was
  in possession of the accused soon after she was sexually
  abused - Therefore, presumption is invoked against the
  accused for causing the injuries on private parts of the victim
  leading to her death - Since the accused failed to rebut this
0 presumption,   his conviction is justified - However, in view of
  the deficiencies in the investigation, absence of forensic
  evidence, lapses in trial proceedings and that the accused
  had not sufficient resources to get /1imself defended upto his
  satisfaction, death sentence is conw3rted to life imprisonment,
E which would be not less than 18 years - His case for remission
  would be considered only after 18 years of imprisonment -
  Evidence Act, 1872 - s.114 - Code of Criminal Procedure,
  1973 - Remission of sentence.

         Sentence/Sentencing - Death sentence - Imposition -
F   Criteria - Held: Nature of offence a·lone may not in all cases
    be the determining factor for bringing the case in the 'rarest
    of rare' category to impose death penalty- Quality of evidence
    is also a relevant factor.

G     Appellant-accused was prosecuted for having raped
  and the killed a 4 years old child. The prosecution case
  was that the accused lifted the child from her house and
  thereafter, subjected her to sexual abuse. When he was
  seen by the villagers carrying the child, he threw the child
H                             108
      RAM DEO PRASAD v. STATE OF BIHAR                 109


in the field and fled away. Charge was framed against him     A
u/ss. 376 and 302 IPC. Trial Court convicted him for the
offences charged and awarded death sentence. The trial
court referred the case to High Court for confirmation of
death sentence. The accused did not prefer any appeal.
High Court confirmed the conviction and death sentence.       B
Jail petition was sent to this Court.

    Partly allowing the appeal, the Court

     HELD: 1. The first part of the prosecution case i.e.
when the victim/deceased was lifted from the verandah         C
of her house and before she was subjected to the sexual
abuse, did not form part of the charge. Further, this part
of the prosecution case was based on the solitary
evidence of PW1 and as he turned hostile, this part of the
case falls to the ground. However, the second part of the     D
case i.e. the case, after the victim child was subjected to
sexual abuse and brutality, is fully established by the
evidences of PW.1 and PW.3. What is thus established
against the appellant is that he was seen carrying the
child soon after she was sexually abused and brutalized       E
in the most cruel manner and on seeing the group of
villagers coming after him, he threw down the child in the
wheat field and ran away. It was, therefore, for him to
explain how the child came in his possession and in the
absence of any explanation the court would be fully           F
justified in invoking section 114 of the Evidence Act and
to hold him guilty of causing the injuries to her private
parts leading to her death. No exception can, therefore,
be taken to the appellant's conviction under sections 376
and 302 IPC. [Para 35 and 36] [122-C-F]
                                                              G
    2.1. The offence committed by the appellant is·
heinous and revolting but the nature of the offence alone
may not in all cases be the determining factor for bringing
the case in the "rarest of rare" category and to impose
                                                              H
    110      SUPREME COURT REPORTS             [2013] 6 S.C.R.


A the ultimate and irreversible punishment of death. [Para
  39] [123-C]

        Rajendra Pralhadrao Wasnik vs. State of Maharashtra
    (2012) 4 SCC 37: 2012 (2) SCR 225 - distinguished.
B        2.2. There are deficiencies in the investigation. No
    attempt was made to find out the spot where the child
    was sexually abused and brutalized and where it might
    have been possible to find some blood or some other
    article that could have thrown any light on the identity of
C   the offender. Apart from the post-mortem report there is
    no medical evidence. There is not a scrap of forensic
    evidence of any kind. Even the torch in the light of which
    the appellant is said to have been identified in the cold
    wintry and foggy night was not produced before the
D   court. There are also lapses in the trial proceedings in the
    framing of the charge and especially in the examination
    of the appellant under section 313 Cr.P.C. It was
    incumbent upon the trial court to clearly tell the appellant
    that according to the prosecution evidence, the child
E   soon after being sexually abused in the most cruel
    manner was seen in his arms and to ask him to explain
    this very vital circumstance against him. But the Section
    313 examination made in this case completely falls short
    of the requirements of the law. The fact that the appellant
F   was represented before the trial court by a lawyer
    appointed by the court ; and that though facing death
    penalty, he did not file an appeal before the High Court
    and in this Court his appeal came through the Jail
    Superintendent, lead to presumption that the appellant
G   did not have sufficient resources to engage a lawyer of
    his own choice and get himself defended up to his
    satisfaction. These facts and circumstances are also
    relevant factors to be taken into consideration while
    confirming the death penalty given to an accused. [Paras
    7 and 40 to 43] [113-G-H; 114-A; 123-E-H; 124-A-E]
H
      RAM DEO PRASAD v. STATE OF BIHAR                  111

    Sajjan Sharma vs. State of Bihar (2011) 2 SCC 206:        A
2011 (1)SCR 629; Santosh Kumar Satishbhushan Bariyar
vs. State of Maharashtra (2009) 6 SCC 498: 2009 (9)
SCR 90; Ramesh vs. State of Rajasthan (2011) 3 SCC 685:
2011 (4) SCR 585 - relied on.
                                                              8
    2.3. In view of the overall facts of the case it would
be unsafe to confirm the death sentence awarded to the
appellant. Hence, while confirming his conviction under
sections 376 and 302 IPC the death sentence given to
the appellant is set aside and the same is substituted by
Imprisonment for life that should not be less than actual     C
imprisonment for a period of 18 years. The case of the
appellant for any remission under Cr.P .C. to be
considered only after he has served out 18 years of
actual imprisonment. [Para 47] (126-D-F]
                                                              D
     Amit vs. State of Uttar Pradesh (2012) 4 SCC 107: 2012
(1) SCR 1009 - relied on.
                    Case Law Reference:
    2012 (2) SCR 225         distinguished       Para 38      E
    2011 (1) SCR 629         relied on           Para 41
    2009 (9) SCR 90          relied on           Para 44
    2011 (4) SCR 585         relied on           Para 45
                                                              F
    2012 (1) SCR 1009        relied on            Para 46
    CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1354 of 2012.

    From the Judgment & Order dated 17 .09.2009 of the High   G
Court of Patna in Death Reference No. 15 of 2008.

    P .S. Patwalia, Tushar Bakshi, Mridula Ray Bharadwaj,
(Amicus Curiae), Samir Ali Khan, Chandan Kumar (for Gopal
Singh) for the appearing parties.                             H
    112       SUPREME COURT REPORTS                 [2013] 6 $.C.R.


A         The Judgment of the Court was delivered by

         AFTAB ALAM,J. 1. The appellant Ram Deo Prasad has
    been awarded death penalty for raping and inflicting injuries to
    a four year old child causing her death.
B
          2. The prosecution case is based on the statement of one
    Mohd. Kamruddin Mian made before Sub-Inspector, Birendra
    Kumar Pandey of Siwan Town P.S. on December 21, 2004 at
    8:15 a.m. at the Sadar Hospital, Siwan. Mohd. Kamruddin
    stated that on the previous night after finishing their meal at
C   about 8:30 p.m. his family had gone to sleep at his house in
    village Badka Gaon, P.S. Pachrukhi District Siwan. His four
    year old daughter Laila Khatoon was sleeping by the side of
    her grandmother on the outer verandah of the house and on the
    other side of the straw bed, the girl's mother was sleeping with
D   her infant child. In the middle of the night, the Informant who was
    sleeping in an inside room came out to relieve himself and found
    Laila Khatoon missing from the side of her grandmother. A
    search started for the girl and then his neighbour, Suman
    Kumar Sah (PW.2) told them that just a little while ago he had
E   seen the appellant swiftly running away towards east, carrying
    a girl child in his arms who was crying. As informed by Suman
    Sah, he (the Informant) and the villagers assembled there
    proceeded towards east in search (of the child). After going for
    about a kilometer, they heard the sound of heavy foot-steps and
F   on going in the direction of the sound they saw that the
    appellant, who was fleeing away with the child, flung the child
    in the wheat field (by the side of the pathway) and ran away.
    On going to the child, he found that it was his missing daughter.
    She was moaning and bleeding from her private parts. The
G   informant further stated that he fully believed that the appellant
    after committing rape on her child was taking her away with the
    intent to kill her and to hide the body somewhere.

        3. The statement was reduced to writing, as the fard-e-
    beyan (Exhibit 4) by Sub-Inspector, Birendra Kumar Pandey
H
       RAM DEO PRASAD v. STATE OF BIHAR                      113
               [AFTAB ALAM, J.]

(PW.6) and was duly signed by the Informant and a witness,          A
apart from the Sub-Inspector recording it. It was dispatched to
Pachrukhi police station, within the jurisdiction of which the
offence was committed, and there the recorded statement was
incorporated in the formal FIR (Exhibit 1), registered as
Pachrukhi P.S. case No.131/2004 dated December 21, 2004             B
under section 376 of the Penal Code.

    4. The child Laila Khatoon died at the Sadar Hospital
Siwan on the same day and consequently section 302 of the
Penal Code was also added to the case.
                                                                    c
     5. On the following day (December 22, 2004) at 11 :00
a.m. the Investigating Officer of the case (PW.4) went to the
collector's office (in Siwan town) for a meeting in connection
with the preparations for the elections that were to be held
shortly. There he was told by the officer in-charge of the Siwan    D
Town P.S. that at 9.00 that morning the appellant was caught
at the Siwan bus-stand and he was detained at the Town P.S.
The Investigating Officer went to the Town P.S., prepared the
arrest memo of the appellant and sent him for production
before the Magistrate with the request to take him in judicial      E
custody. The appellant was, thus, produced before the
Magistrate on December 22, 2004 and as per the request of
the Investigating Officer, was remanded to judicial custody.

    6. It did not occur to the Investigating Officer to take the
                                                                    F
appellant on remand for interrogations or getting him examined
by a doctor or seizing his clothes etc.

      7. In course of investigation, the Investigating Officer
inspected two sites as "the place of occurrence"; one, the
verandah of the Informant's house from where the child was          G
lifted and the other, the wheat field where the child was said to
have been thrown by the appellant; nothing was found of any
significance at either of two places. No attempt was made to
find out the spot where the child was sexually abused and
brutalized and where it might have been possible to find some       H
    114       SUPREME COURT REPORTS                 [2013] 6 S.C.R.


A   blood or some other article that could have thrown any light on
    the identity of the offender. The "investigation" mainly consisted
    of recording the statements of witnesses under section 161 of
    the Code of Criminal Procedure and as it was completed
    charge-sheet was submitted on March 30, 2005, naming the
B   appellant as the accused.

         8. On the basis of the charge-sheet the appellant was put
    on trial before the 1st Additional Sessions Judge, Siwan.

         9. It needs to be stated here that in support of its case,
C   the prosecution examined six (6) witnesses before the trial
    court. PW.6 is the Sub-Inspector who had recorded the
    statement of the victim's father Kamruddin Mian. He was simply
    called to formally prove the fard-e-beyan, giving rise to the FIR.
    PW.4 is the Investigating Officer. He formally proved the FIR.
D   He also stated that he had recorded the statements of
    Rukhsana Khatoon (the mother of the victim: PW.3), Suman Sah
    (PW.1 ), Hasmuddin (not examined), Nasir (PW.2), Ram
    Chhabila Prasad (not examined), Gumani Pandit (not
    examined) and some others. PW.5 is the doctor who was a
E   member of the team of doctors which had conducted post-
    mortem over the body of the child. She formally proved the post-
    mortem report.

         10. Apart from the two policemen and the doctor the
  prosecution examined three other witnesses. PW.1 is Suman
F Sah, the neighbour of the Informant who was the first to say that
  he had seen the appellant running away, carrying a girl child
  who was crying. PW.2 is Nasir, the paternal cousin of the
  Informant who was one of ttie group which had gone in pursuit
  of the appellant and who had seen the appellant flinging the
G child in the wheat field and making good her escape. PW.3 is
  Rukhsana Khatoon, the unfortunate mother of the child. We shall
  presently see their evidences in greater detail. But at this stage
  it is important to note that the Informant, the father of the child
  did not appear as one of the witnesses. By the time the trial
H
       RAM DEO PRASAD v. STATE OF BIHAR                      115
               [AFTAB ALAM, J.]
took place he had gone somewhere abroad to earn the                 A
livelihood.

      11. Further, the prosecution took steps to examine two
other witnesses mentioned in the charge-sheet, namely
Hasmuddin and Gumani Pandit and obtained warrants of arrest         B
for their production. They were produced before the trial court
on October 5, 2007 but from the order dated October 30, 2007
passed by the court, it appears that though the prosecution
produced the aforesaid two witnesses, besides one Ram
Chhabila Prasad (also named in the charge-sheet as one of
the witnesses), the In-charge Public Prosecutor filed a petition    C
that the three witnesses were not inclined to support the
prosecution case and, as such, he was giving them up and was
not in favour of examining them. That petition was disposed of
by order dated November 13, 2007 and the three persons were
discharged from giving evidence in the case.                        D

     12. At the commencement of the trial, the court framed the
charge against the appellant. It is relevant to see what was said
in the charge which is reproduced below:
                                                                    E
         "First - That you, on or about the 21st day of
    December 4 at Badaka Gaon you committed rape on Laila
    Khatoon hardly aged about 4 years and thereby committed
    an offence punishable under section 376 of the Indian
    Penal Code and within my cognizance.
                                                                    F
           Secondly - That you on or about the same date/ day
    of same month and same place you committed murder
    intentionally and knowingly that the act of rape was likely
    to cause death of Laila Khatoon and that thereby
    committed an offence punishable section 302 of the Indian       G
    penal Code and within my cognizance.

         And I hereby direct that you be tried by the said court
    on the said charge.
                                                                    H
        116      SUPREME COURT REPORTS               [2013] 6 S.C.R.


    A              The charge was read over and explained to the
              accused in Hindi to which he pleaded not guilty and
              claimed to be tried.

                   Dated this 19 day of 04, 2007."
    B      13. It is, thus, to be seen that the charge is completely
      silent in regard to the first part of the prosecution case that
      immediately after the child was missing, the appellant was seen
      running away carrying in his arms a girl child who was crying.
      There was no charge under section 366A or section 367 of the
    C Penal Code.

          14. At the conclusion of the prosecution evidence, the court
      examined the appellant under section 313 of the Code of
      Criminal Procedure. It is also important to see how the
    D examination under section 313 took place; hence, the full
      examination under section 313 is quoted below.
'
         "Question: Have you heard the statements of the witnesses?

         Answer:      Yes.
    E
         Question:    Against you the charge and evidence are that on
                      20/12/2004 in the night at 12.00 you went to the
                      house of Kamruddin Miyan s/o Babujaan Miyan,
                      village Barka Gaon P.S. Pachrukkhi district
         Siwan           and abducted his daughter Laila Khatoon (6
    F
                         years).

         Answer:      No.

         Question:    There is also evidence against you that you
    G                 committed rape on her and flung her in the field
                      and as a result she died.

         Answer:      No.

         Question:    Do you have anything to say in your defense?
    H
       RAM DEO PRASAD v. STATE OF BIHAR                       117
               fAFTAB ALAM, J.J
  Answer: · · I have been falsely implicated. The villagers have    A
       '    wrongly declared me as mad."

     15. This is all! The first question was an empty formality
and the se·cond question was evidently asked even without
looking to the charge as there was no charge of abducting the 8
child from her father's house against that appellant. The whole
of section 313 was, thus, squeezed into the third and the last
question. We shall advert back to this aspect of the matter later .
but there is something else in the appellant's statement under
sectior\313'which we cannot fail to notice: There is an allusion
to the villagers' calling him, "mad". Unfortunately, this aspect of C
the matter reeeived absolutely no attention either in investigation
or during triat: \/Ve m.ay he,r~ c,tarify that on the basis of that
isolated Jfugment of a sentence we are not suggesting that the
appellan(was of unsound mind. But what we wish to emphasize
is that in'.;i case involving death. sentence, the court cannot:· D
afford to leave any detail, howsoever small and apparently
insignificarlj; fully explored. ·· .    ,   ·

     16. Afihe conclusion of the trial, the court found the
appellant guilty of committing rape and causing injuries to the · E
child leading;to her, death and accordingly, by judgment and
order dated September 6;2008/September 9, 2008 passed
in Sessions Trjal No; 417 of ~006, convicted him under sections
376 and 302 qt the Penal Code and awarded him the death
penalty.        ,. . .., . , ·, .
                     ;                                            F.
        17. Since ftie punishment given to the appellant was death,
  the trial court made a reference under section 366 of the Code
. of Criminal Procedure which was registered in the High Court
  as Death Reference No.15/2008.                          ·
                            . ,,                                    .G
       18. It needs to be stated here that before the trial court,
  the appellant was unrepresented and, therefore, the court had
 appointed an advocate to defend him from the panel of lawyers
  for undefended accused. Further, even after being punished with
 death, the appellant did not file any appeal before the High , H
                                                                         II
                                                                         ''
    118       SUPREME COURT REPORTS               [2013] 6 S.C.R.


A   Court and, thus, what the High Court had before it was only the
    death reference made by the trial court. The High Court in its
    judgment has brushed aside the fact that no appeal was filed
    by the appellant, observing as under.

               "The respondent has not preferred an appeal,
B
          understandably because he could challenge the findings
          upon which the orders of conviction and sentence are
          based as if he had preferred an appeal."

       19. In our view, the High Court, attributed to the appellant,
C knowledge of law and the court procedure for which there does
  not appear to be any basis. To our mind, the appellant filed no
  appeal before the High Court either because of the lack of
  resources or because he did not fully realize the gravity of his
  position and we are unable to accept the view taken by the High
D Court for the appellant filing no appeal against the judgment of
  the trial court giving him the death penalty.

       20. Anyway, since there was no one to represent the
  appellant in the death reference, the High Court requested a
E senior advocate of that court to assist it in hearing and
  disposing of the reference and finally by a detailed judgment
  dated September 17, 2009 accepted the reference and
  confirmed the death penalty awarded to the appellant.

       21. After the High Court judgment, the Registry of the
F Supreme Court received the jail petition (special leave petition)
  (death case) on behalf of the appellant through the
  Superintendent, Central jail, Buxar, Bihar. Though the petition
  was barred by limitation by 42 days, it was not accompanied
  by any application for condonation of delay. The jail petition
G along with copies of the judgments passed by the trial court and
  the High Court were handed over to the Amicus Curiae,
  appointed as per the instructions contained in Circular, dated
  December 6, 2008. The amicus then drew up and filed a
  proper special leave petition on which notice was issued and
H the execution of the appellant was stayed by order dated March
       RAM DEO PRASAD v. STATE OF BIHAR                        119
               [AFTAB ALAM, J.]
19, 2010. Leave to appeal was finally granted by order dated          A
September 3, 2012.

     22. The amicus appointed by the office assisted us to the
best of his ability bat we also requested Mr. P.S. Patwalia,
learned senior counsel, to assist the Court in the hearing of the     8
appeal and Mr. Patwalia rendered admirable assistance to us.

     23. Since the appeal involves death penalty, we propose
to re-examine all the issues arising in the case ourselves,
independently of any findings arrived at by the courts below.
                                                                      c
      24. It is noted above that the prosecution examined six
witnesses in support of its case. Dr. Seema Choudhary (PW.5)
is the doctor who was a member of the Medical Board
constituted to examine the dead body of Laila Khatoon. She
stated before the court the findings of the post-mortem and           D
proved the post-mortem report which was marked as Ex.3. The
evidence of the doctor coupled with the post-mortem report
leaves no room for doubt that the child was sexually abused
and brutalized with utmost cruelty and perversity and the injuries
inflicted upon her in course of the sexual abuse caused her           E
death.

     25. Birendra Kumar Pandey (PW.6) is the Sub-Inspector
of Police of Siwan (Town) P.S. who had taken down the
statement made by Mohd. Kamruddin Mian and recorded it as
the fard-e-beyan. He identified the fard-e-beyan which was            F
marked as Ex.4.

     26. Mehboob Alam Khan (PW.4) is the Investigating Officer
of the case. There is hardly anything significant in his deposition
before the court.                                                     G
    27. This leaves us with the statements of PW.1 to PW.3.

     28. Suman Kumar Sah (PW.2) is the lnfonnant's neighbour.
In his deposition before the court he stated that about two and
a half years before the date of the deposition he woke up one         H
    120      SUPREME COURT REPORTS               [2013] 6 S.C.R.


A night at about 11- 11.30 for relieving himself, he saw that a
  person carrying a child in his arms was going towards the field
  of Ram Bachan Mishra. He then went back to sleep. After 10-
  20 minutes, he saw Mohd. Kamruddin (the Informant). Nasir
  Mian (PW.1), Gumani Pandit (not examined), Ram Chhabila
B Prasad (not examined) and others, coming on the road in front
  of his house. He went out to meet them and then he came to
  know that someone had taken away a child from Kamruddin's
  house. He further said that he did not tell them that a little
  while ago he had seen someone carrying a child.
c However, he also joined them and proceeded with them. He
  further said that they found a girl lying in the field of
  Sachidanand Mishra. The girl was bleeding from her private
  parts. The girl was brought to Siwan where she died. He
  added that he did not know who had abducted the girl.
  He concluded by saying that he knew the appeUant who was
0
  present in court. At that stage he was declared hostile by
  the prosecution and was subjected to cross-examination.
  He denied that he had made any statement before the police
  that he had seen the appellant taking away the child from the
  verandah of Kamruddin and further that in course of search he
E had seen the appellant with the child. The Investigating Officer
  (PW.4), however, stated before the court that Suman Sah had
  said before him that he had seen the appellant coming out from
  the verandah of Kamruddin and in course of the search too had
  seen the appellant with the victim child.
F
        29. The second witness Nasir Mian (PW.1) stated before
  the court that about two and a half years earlier, at about 12:00
  in the night, Kamruddin got up and found that his daughter was
  missing from the side of his mother with whom she was
G sleeping. Kamruddin came to him and then there was an outcry
  that the child was missing. He, along with Kamruddin and other
  villagers started searching for the child. In course of the search
  they went to Suman Sah who told them that the appellant had
  gone towards east, in the direction of Ram Bachan Mishra's
H orchard, carrying a child. They then went to .Ram Bachan
       RAM DEO PRASAD v. STATE OF BIHAR                          121
               [AFTAB ALAM, J.)
Mishra's orchard and, lighting the torch there, they saw the            A
appellant running away with a child. The appellant, on seeing
them coming after him, flung the child in Ram Bachan Mishra's
wheat field. They ran after him but he succeeded in fleeing
away. In the wheat field they found Kamruddin's daughter who
was about 4 years old. She was injured and was bleeding from            B
her private parts. They brought the child to the Sadar Hospital,
Siwan, where she passed away the following morning. The
mouth of the child was filled with earth and she was also
bleeding from her nose.

     30. In cross-examination he stated that the occurrence took        C
place on a winter night which was very cold and there was a
dense fog on that night. He also stated that he had produced
the torch in the light of which he had identified the appellant
before the darogaji. The torch, however, was not presented
before the court.                                                       D

     31. On an overall scrutiny of the deposition of Nasir Mian
we find that he remained quite firm and unshaken on his part
of the story.
                                                                        E
     32. The third witness, Rukhsana Khatoon (PW.3), is the
mother of the child. She stated that as the child was found
missing and a search started, Suman Kumar Sah one of the
neighbours informed that (he had seen) the appellant going
away carrying a child. She then stated about the group of
villagers going in search of and finding the girl whom the              F
appellant had flung in the field. In the course of cross-
examination, however, she said that she was also a part of the
group which had gone in search of the child on the fateful night
and her mother-in-law was also a part of that group.
                                                                        G
    33. This is all the oral evidence adduced by the
prosecution.

     34. We may here broadly divide the prosecution case in
two parts. In the first part, soon after the child was found missing,
                                                                        H
    122      SUPREME COURT REPORTS                (2013] 6 S.C.R.


A the appellant was seen close to the house of the Informant,
  swiftly going eastwards in the direction of Ram Bachan Mishra's
  fields/orchard carrying in his arms a girl child who was crying.
  This was at a point when the child was lifted from the verandah
  of her house and before she was subjected to the sexual abuse.
B In the second part of the prosecution case the appellant was
  seen carrying the child and on seeing the group of villagers
  coming in pursuit of him he threw down the child in the wheat
  field and fled away. This was at a point after the child was
  subjected to the sexual abuse and brutality.
c       35. The first part of the prosecution case, as seen above,
    did not form part of the charge. Further, this part of the
    prosecution case was based on the solitary evidence of Suman
    Sah and as he turned hostile, this part of the case falls to the
    ground.
D
       36. However, the second part of the case is fully
  established by the evidences of Nasir Mian (PW.1) and
  Rukhsana Khatoon (PW.3). What is thus established against
  the appellant is that he was seen carrying the child soon after
E she was sexually abused and brutalized in the most cruel
  manner and on seeing the group of villagers coming after him
  he threw down the child in the wheat field and ran away. It was,
  therefore, for him to explain how the child came in his
  possession and in the absence of any explanation the court
F would be fully justified in invoking section 114 of the Evidence
  Act and to hold him guilty of causing t)le injuries to her private
  parts leading to her death. No exception can, therefore, be
  taken to the appellant's conviction under s~ctions 376 and 302
  of the Penal Code.

G       37. But the vital question is that of the sentence to which
    he should be liable.

       38. Mr. Samir Ali Khan, learned counsel appearing for the
  State of Bihar, strongly submitted that the offence committed
H by the appellant showed not only extreme cruelty but also great
        RAM DEO PRASAD v. STATE OF BIHAR                      123
                [AFTAB ALAM, J.]
depravity and urged that this Court while confirming his              A
conviction should also confirm the death penalty awarded to him
by the courts below. In support of his submission he relied upon
a decision of this Court in Rajendra Pra/hadrao Wasnik v.
State of Maharashtra'. Like the present appellant, Wasnik was
also held guilty of raping and killing a three year old girl and in   B
his case this Court confirmed the death penalty awarded to him.
It is true that the case of Wasnik relied upon by Mr. Khan is
similar to the case in hand insofar as in both cases girls of very
tender age were subjected to extreme sexual brutality resulting
in their death.                                                       c
     39. There can be no doubt that the offence committed by
the appellant is heinous and revolting but the nature of the
offence alone may not in all cases be the determining factor
for bringing the case in the "rarest of rare" category and to
impose the ultimate and irreversible punishment of death. There       D
are certain features of this case which are not to be found in
Wasniks case and make the present case distinguishable from
the decision relied upon by Mr. Khan.

     40. In the earlier part of the judgment we have indicated        E
the deficiencies of investigation. Apart from the post-mortem
report there is no medical evidence. There is not a scrap of
forensic evidence of any kind. Even the torch in the light of which
the appellaht is said to have been identified in the cold wintry
and foggy night was not produced before the court.                    F

     41. We have also recounted the lapses in the trial
proceedings in the framing of the charge and especially in the
examination of the appellant under section 313 of the Code of
Criminal Procedure. On an earlier occasion, in the decision in
Sajjan Sharma v. State of Biha~ (to which, one of us, Aftab           G
Alam J. was a party) this Court had commented upon the
careless and the unmindful way in which examination of the

1.   c2012) 4 sec 37.
2.   c2011) 2 sec 200.                                                H
    124       SUPREME COURT REPORTS               [2013] 6 S.C.R.


A accused under section 313 of the Code of Criminal Procedure
  was generally conducted in the State of Bihar. The present case
  is another glaring example. It was incumbent upon the trial court
  to clearly tell the appellant that according to the prosecution
  evidence, the child soon after being sexually abused in the most
B cruel manner was seen in his arms and to ask him to explain
  this very vital circumstance against him. But the section 313
  examination made in this case completely falls short of the
  requirements of the law.

       42. We have also seen that the appellant was represented
C before the trial court by a lawyer appointed by the court from
  the panel of advocates for undefended accused. Though facing
  death penalty, he did not file an appeal before the High Court
  and in this Court his appeal came through the Jail
  Superintendent. We presume that the appellant did not have
D sufficient resources to engage a lawyer of his own choice and
  get himself defended up to his satisfaction.

         43. We are very clear that the aforesaid facts and ·
    circumstances are also relevant factors to be taken into
E   consideration while confirming the death penalty given to an
    accused.

        44. Mr. Patwalia, senior counsel, invited our attention to
    the decision of this Court in Santosh Kumar Satishbhushan
    Bariyar v. State of Maharashtra 3 • In Santosh Kumar, after
F   surveying a large number of decisions on death penalty, this
    Court in Paragraph 56 of this judgment observed as under:

                 "56. At this stage, Bachan Singh informs the content
          of the sentencing hearing. The court must play a proactive
G         role to record all relevant information at this stage. Some
          of the information relating to crime can be culled out from
          the phase prior to sentencing hearing. This information
          would include aspects relating to the nature, motive and

H 3. c2009) a sec 498.
        RAM DEO PRASAD v. STATE OF BIHAR                     125
                [AFTAB ALAM, J.]
     impact of crime, culpability of convict, etc. Quality of       A
     evidence adduced is also a relevant factor. For
     instance, extent of reliance on circumstantial evidence or
     child witness plays an important role in the sentencing
     analysis. But what is sorely lacking, in most capital
     sentencing cases, is information relating to characteristics   B
     and socio-economic background of the offender. This
     issue was also raised in the 48th Report of the Law
     Commission."

                                             (emphasis added)       C

     45. Mr. Patwalia submitted that the above passage from
the decision in Santosh Kumar was cited and followed by the
Court in Ramesh v. State of Rajasthan•. In Paragraph 68 of
the judgment in Ramesh this Court observed as under:
                                                                    D
     "68. Practically, the whole law on death sentence was
     referred to in Santosh Kumar case. In SCC para 56, the
     Court observed: (SCC p. 527)
     "56 . ... The court must play a proactive role to record all
     relevant information at this stage. Some of the information    E
     relating to crime can be culled out from the phase prior to
     sentencing hearing. This information would include
     aspects relating to the nature, motive and impact of crime,
     culpability of convict, etc. Quality of evidence is a/so a
     relevant factor. For instance, extent of reliance on           F
     circumstantial evidence or child witness plays an
     important role in the sentencing analysis. But what is
     sorely lacking, in most capital sentencing cases, is
     information relating to characteristics and socio-economic
     background of the offender. This issue was also raised in      G
     the 48th Report of the Law Commission."

                                           (emphasis supplied)

4.   c2011) 3 sec 685.                                              H
    126        SUPREME COURT REPORTS               [2013] 6 S.C.R.


A         The Court, thus, has in a guided manner referred to the
          quality of evidence and has sounded a note of caution that
          in a case where the reliance is on circumstantial evidence,
          that factor has to be taken into consideration while
          awarding the death sentence. This is also a case purely
B         on the circumstantial evidence. We should not be
          understood to say that in all cases of circumstantial
          evidence, the death sentence cannot be given."

       46. Mr. Patwalia also cited before us the decision of this
  Court in Amit v. State of Uttar Pradesh 5 • In the case of Amit,
C though this Court upheld his conviction under sections 376 and
  302 of the Penal Code finding him guilty of raping and killing a
  three year old girl, commuted the death penalty awarded to him
  by the courts below.

D      47. In the overall of facts of the case and for the reasons
  discussed above we feel it quite unsafe to confirm the death
  sentence awarded to the appellant. Hence, while confirming his
  conviction under sections 376 and 302 of the Penal Code, we
  set aside the death sentence given to the appellant and
E substitute it by imprisonment for life that should not be less than
  actual imprisonment for a period of 18 years. The case of the
  appellant for any remission under the Code of Criminal
  Procedure may be considered only after he has served out 18
  years of actual imprisonment.
F      48. In the result, the appeal is dismissed subject to the
    modification in sentence.

    K.K.T.                                   Appeal partly allowed.




    s.   (2012) 4 sec 101.