SURENDRA PAL SHIVBALAKPALversusSTATE OF GUJARAT

A                     SURENDRA PAL SHIVBALAKPAL
                                   v.
                           STATE OF GUJARAT

                              SEPTEMBER 16, 2004

B         [K.G. BALAKRlSHNAN AND DR. AR. LAKSHMANAN, JJ.]

          Penal Code, 1860:

          Ss. 363, 376 and 302-A child kidnapped, ravished and done to death-
c Jn the night accused seen with a girl on his shoulders-On the following day
    in the early morning body of girl found indicating sexual assault on her- ·
    His conduct immediately prior to the incident and chemical examination of
    his garments pointing towards. accused having committed the crime-
    Conviction and sentence of death awarded by trial court confirmed by High
    Court-Held, both the courts below appreciated the evidence in correct
D
    perspective and rightly found the accused guilty-Conviction confirmed, but
    sentence commuted to life imprisonment.

          Sentence/Sentencing-Accused convicted under ss. 363, 376 and 302
    !PC-Death penalty imposed by trial court confirmed by High Court-Held,
E   there is no evidence that accused was involved in any other criminal case
    previously nor can it be concluded from the material on record that he would
    be a menace to the society in future-Accused being a migrant labour and
    living in impecunious circumstances-Jn the circumstances it cannot be said
    that this is a rarest ofrare case warranting death penalty-Sentence of death
F   commuted to life imprisonment.

          Code of Criminal Procedure, 1973:

         s.235(2)-Hearing the accused on question of sentence-Plea that
    accused should have been heard in-person and not through the counsel
G   appointed by him-Held, if the accused had engaged a counsel, court can
    hear the counsel on the question ofsentence-Besides, on facts, accused was
    present in court and he did not make any further statement regarding
    sentence-He also had liberty to adduce evidence regarding sentence but he
    did not avail the opportunity-Contention that he was not questioned before
H   the sentence was imposed is not correct.
                                        464
             SURENDRA PAL SHIVBALAKPAL v. STATE                         465

     Allauddin Mian & Ors., Sharif Mian & Anr. v. The State of Bihar, JT       A
(1989) 2 SC 171, referred to.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 259
of 2004.

     From the Judgment and Order dated 19/21.11.2003 of the Gujarat High       B
Court in Crl. C.C. No. 112003, Crl. A. No. 770 of 2003.

     Darshan Singh Chawla (A.C.) for the {\ppellant.

     Madhukar Verma, Ms. Sadhana Sandhu and Ms. Hemantika Wahi for
the Respondent.
                                                                               c
     The following Order of the Court was deliv,ered :

     The appellant was found guilty by the Sessions Court for the offences
punishable under Sections 363, 376 and 302 IPC. For the offence of murder      D
he was sentenced to death. The appellant preferred"an appeal before the High
Court and there was also the reference case regarding confirmation of death
sentence. The appeal and reference were heard together and the division
bench of the High Court of Gujarat confirmed the conviction of the appellant
on all the counts and the death penalty imposed on the appellant for the
offence under Section 302 IPC was confirmed. Aggrieved by the conviction       E
and sentence this appeal was preferred.

      The appellant Surendra Pal Shivbalakpal was staying in one of the
rooms of a building owned by complainant Kavalpati, a widow having three
children. On 11.9.2002 at about 10 p.m., the appellant came to PW-2            F
Kevalpati and offered Rs. 150 and sought for sexual favours. PW-2 got angry
and she asked him to go away, but the appellant declined to leave the place.
PW-2 told her brother Rajaram and her son Manoj that the appellant had been
harassing. They came and scolded the appellant and he left the place. During
the night, PW-2 along with her two minor daughters were sleeping on a cot
lying outside the room. At about midnight she felt cold and went inside and    G
at l.00 o'clock she came back and then she saw that one of her daughters
namely Savitri @ Sanju was missing. She immediately called her brother
Rajaram and her son Manoj who were sleeping in another portion of the same
house. They searched Sanju at nearby places and as they had suspicion on
the appellant Surendrapal, they went in search of him in his house but the     H
    466                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   appellant was not found in his room. They made enquiry with PW-7
    Ramvaran. He stated that he had seen appellant Surendrapal going away with
    a girl on his shoulder but he thought that the girl must be the daughter of
    Fulchand, a relative of the appellant. The people in the locality collected and
    at about 4 0' clock in the morning they saw the appellant coming from nearby
B   road. PW-2 and other took him to the police station. It seems that he made
    certain revelations and PW-2 gave FI statement and on the basis of the FI
    statement a case was registered and investigation was started.

          The dead body of Savitri @ Sanju was recovered from a pond near the
    G.l.D.C. building. The body was found floating on the water and it was
C   identified by relatives. An inquest was held on the dead body and on post
    mortem examination it was found that there were series of injuries on the
    body of deceased Sanju. The clothes were stained with blood and some mud
    particles. There was lacerated wound on the private parts of the deceased.
    Hymen was completely ruptured. Dr. opined that the victim must have died
D   due to Asphyxia.

          On the side of the prosecution PW-1 to PW-19 were examined. The
    prosecution relied on Section 27 recovery of the dead body pursuant to
    the confession made by the appellant and also the evidence of PW-7 who
    had seen the appellant on the previous night moving with a child. The conduct
E   of the appellant, on the previous night, immediately prior to the occurrence
    was also taken note of by the Sessions Court in finding him guilty. The
    Sessions Court as well as the High Court placed reliance on the evidence
    regarding blood stains found on the clothes worn by the appellant.

F        We heard learned counsel for the appellant and counsel for the
    respondent.

         The counsel for the appellant seriously urged before us that there is no
    evidence to show that the appellant had committed this offence. The counsel
    seriously contended that the evidence regarding recovery of the dead body
G   of deceased Sanju was inadmissible as the place where the dead body was
    lying was known to the police as well as others present there at that time.
    It was also pointed out that even in the FI statement reference has been made
    regarding the place .where the dead body was found. There is some force i~
    the contention urged by appellant's counsel. The FI statement is alleged to
    have been given at 6 a.m. on 12.9.2002 even in the FI statement, it is stated
H
              SURENDRA PAL SHIVBALAKPAL v. STATE                            467

that the appellant was brought to the police station and he told as to where        A
the dead body was lying. The recovery is alleged to have been made at 8.30
a.m. on the same day but the inquest is alleged to have been taken place at
7.30 a.m. on the very same day. There is incongruity in the prosecution
evidence regarding recovery of the body and the inquest of the dead body.
PW-19, the Investigating Officer could not throw much light on this infirmity       B
in the investigation. Therefore, we do not attach importance to the alleged
recovery of dead body at the instance of the appellant.

      Further, there is strong evidence to show that the appellant committed
the offence. According to the prosecution, the appellant was immediately
arrested and brought to the police station. His cloths viz. pant, shirt and other   C
garments were recovered and sent for chemical examination. Items F,G,H,
and I are shirt, banyan, pant and underwear respectively. All these were cloths
worn by the appellant at the time of incident. The chemical analyst report
shows that on items F,G and H there were presence of blood stains and Item
I was also having blood stains mixed with semen. The appellant could not            D
given any rational explanation for the presence of blood stains on his cloths.
He did not offer any explanation when his attention was drawn to these
incriminating circumstances.

      Another circumstances is the evidence of PW-7 Rambaran. He deposed
that in the night of 11.9.2002 he returned from duty after watching TV for          E
some time and after taking dinner he went to bed and at about 1 .a.m. he got
up to answer the call of nature and came to the bath-room situat::d outside
his house, then he found the appellant moving around and he was having·a
child on his shoulder. On the next day, PW-2 and others started enquiring
about deceased Sanju. He told this fact to his wife who is PW-4. In the FI          F
statement also reference has been made to the statement made by Rambaran.
Of course PW-7 had not identified that the girl was deceased Sanju.
Nevertheless, it is a serious incriminating circumstance and the appellant
being a unmarried man, he could not have been found at that night with a
girl and this circumstance clearly shows that the appellant had kidnapped the
child during night for the purpose of commission of this crime.                     G
      The dead body of deceased Sanju was found in the early morning of
12.9.2002 and the appellant was arrested immediately and previous conduct
also though not strictly admissible in evidence would prove that the appellant
was prone to do such crime. The Sessions Judge as well as the High Court            H
    468                   SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A   appreciated the evidence in the correct perspective and found the appellant
    guilty and we do not find reasons to disbelieve this finding. .

          The counsel for the appellant contended that in this case, the appellant
    was not heard before the sentence of death penalty was imposed on him. It
    is urged that under Section 235(2) ofCR.P.C. the Sessions Judge sh~uld have
B   heard the accused on the question of sentence. The contention of the appellant
    counsel is not correct. The appellant also placed reliance on the decision of
    this Court in Allauddin Mian & Ors. Sharif Mian & Anr. v. The State of
    Bihar, JT (1989) 2 SC 171, where this Court emphasised the importance of
    questioning the accused before the sentence is imposed on him. In the instant
c   case, the appellant was found guilty under Sections 363, 376 and 302 IPC
    and the judgment was pronounced on 19.6.2003 and the case was adjourned
    for hearing of the accused on the question of sentence to the next day and
    the question of sentence was elaborately considered and that the order of
    sentence was pronounced on 20.6.2003. It is to be noted that the appellant
    and his counsel were present and in paragraph 44 of the judgment of the
D
    Sessions Court, it is mentioned that on behalf :>f the appellant learned
    advocate Mr. V.T. Acharya submitted thatthis is a first case in which accused
    is involved and there was a relationship of a landlord and tenant between the
    complainant and the accused and the appellant's counsel pleaded that the
    offence had been alleged against the appellant as there was quarrel regarding
E   throwing of water from upstairs and the accused being a poor person and as
    the case does not fall within the category of 'rarest of rare case', the minimum
    punishment may be awarded.

         Thereafter is paragraph 45, the Sessions Court elaborately considered
    the various aspects and imposed death penalty.
F
         Therefore it is incorrect to contend that the appellant was not heard. The
    counsel submitted that as regards sentence, the appellant should have been
    heard in-person and not through the counsel appointed by him. This
    contention cannot be accepted. If the accused had engaged a counsel the court
G   can ask the counsel as to whether he had anything to say about sen1ence. The
    appellant was also present in the court and he did not make any further
    statement .regarding sentence to be imposed on him. He also had liberty to
    adduce evidence regarding the sentence but he did not avail that opportunity
    and the contention that the appellant was not questioned before the sentence
    was imposed is not correct.
H
                   SURENDRA PAL SHIVBALAKPAL v. STATE                             469

           The next question that arises for consideration is whether this is a 'rarest   A
     of rare case', we do not think that this is a 'rarest of rare case' in which death
     penalty should be imposed on the appellant. The appellant was aged 36 years
     at the time of the occurrence and there is no evidence that the appellant had
     involved in any other criminal case previously and the appellant was a
     migrant labour from U.P. and was living in impecunious circumstances and             B
     it cannot be said that he would be a menace to the society in future and no
     materials are placed before us to draw such a conclusion. We do not think
     that the death penalty was warranted in this case. We confirm conviction of
-:   the appellant on all the counts, but the sentence of death penalty imposed
     on him for the offence under Section 302 IPC is commuted to life
      imprisonment.                                                                       c
            The appeal is disposed of accordingly.

     R.P.                                                        Appeal disposed of.