Apex Court commutes death sentence of rape & murder accused saying if there is probability of reformation & rehabilitation, then it is unsafe to treat his case as falling in ‘rarest of rare’ category

Read Judgment: Pappu V. The State of Uttar Pradesh

Pankaj Bajpai

New Delhi, February 10, 2022: While deciding on the death sentence of a man who was accused of heinous crime of raping and murdering a seven year old girl child (deceased victim), the Supreme Court has opined that if there is probability of reformation and rehabilitation of the accused, it would be unsafe to treat this case as falling in ‘rarest of rare’ category. 

A Larger Bench of Justice A.M Khanwilkar, Justice Dinesh Maheshwari and Justice C.T Ravikumar observed that when ‘last seen’ evidence is cogent and trustworthy which establishes that the deceased was lastly seen alive in the company of the accused; and is coupled with the evidence of discovery of the dead body of deceased at a far away and lonely place on the information furnished by the accused, the burden is on the accused to explain his whereabouts after he was last seen with the deceased and to show if, and when, the deceased parted with his company as also the reason for his knowledge about the location of the dead body.

Going by the background of the case, Pappu (Appellant) had been accused of enticing a seven-year-old girl to accompany him on the pretext of picking lychee fruits and thereafter committing rape upon the child.

He was accused of having caused her death and dumping the dead body near a bridge on the riverbank, after having dragged it over a distance of one and one quarter kilometres. The Trial Court, after analyzing the material placed on record, came to the conclusion that the prosecution had been able to substantiate the charges by proving beyond doubt that the appellant had taken the deceased with himself by enticing her to pluck and eat lychee fruits, committed rape and then murdered her, and concealed the dead body in bushes near the riverbank. The Additional Sessions Judge looking to the heinous crime committed by the appellant, found it unjustified to show any mercy in punishment and thus, awarded varying punishments, including that of death sentence for the offence u/s 302 IPC.

Upon reference for confirmation of death sentence in terms of Section 366 of CrPC, the High Court found no reason to disbelieve the evidence led by the prosecution; and while rejecting the defence story of wrongful prosecution for enmity due to land dispute, affirmed the findings on conviction of the appellant. The High Court further dealt with the question of sentence and with reference to the nature of offence, in brutal rape and murder of a seven year-old girl child, found the present one to be ‘rarest of rare case’, where the sentence of death was considered ‘eminently desirable’. The High Court, accordingly, confirmed the punishment awarded to him, including the sentence of death.

After considering the submissions, the Larger Bench found that in an appeal by special leave, where the Trial Court and the High Court have concurrently returned the findings of fact after appreciation of evidence, each and every finding of fact cannot be contested nor such an appeal could be dealt with as if another forum for re-appreciation of evidence.

As noticed, the Trial Court and the High Court have concurrently recorded the findings that the prosecution has been able to successfully establish the chain of circumstances leading to unmistakable conclusion that the appellant is guilty of the offences of rape and murder of the victim child as also of concealing her dead body, added the Bench. 

Speaking for the Bench, Justice Maheshwari found that the fundamental fact, as held proved against the appellant is that the deceased was lastly seen in the company of the appellant when he took the deceased along with himself while shooing away other children, and the other significant fact, as held proved, is that the dead body of the victim child was recovered at a faraway place near the riverbank at the instance of the appellant.

“The overt assertion made in the complaint by PW-1 Nisha, mother of the victim child, that as per her belief, the child was raped and murdered and the dead body was concealed by the appellant, is also required to be visualized with reference to the backdrop that she had the knowledge about the appellant having taken her daughter in the evening and had been searching for her daughter for the whole night. This is coupled with the fact that she was undoubtedly a rustic villager and even got the complaint scribed from someone else. Again, in the process of appreciation of evidence, the Trial Court and High Court have looked at the substance and core of the matter emerging from her testimony while consciously taking note of her background”, added the Bench.

On the question of ante-timed FIR, the Apex Court quoted the decision in case of Inspector of Police, Tamil Nadu v. John David, (2011) 5 SCC 509, to reiterate that every irregularity in maintaining the record pertaining to the investigation cannot take away the crux and substance of the matter, if there are strong substantial evidences deduced from the investigation, which logically and rationally point towards the guilt of the accused. 

It is but clear that a few discrepancies here or there do not establish that the FIR was ante- timed or that the dead body had already been seen by anyone before lodging of FIR, added the Court. 

While highlighting that a cogent & concurrent finding of fact by Trial Court as well as High Court that the accused is guilty of rape and murder of a victim child as also of concealing her dead body, which was based on proper appreciation of evidence and hence calls for no interference, the Larger Bench opined that there is no reason to disbelieve testimony of child witness, even if her comprehension of time and hours appears to be wanting in maturity.

“Heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct”, added the Bench.

Thus, the Apex Court concluded that even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored.

Accordingly, the Top Court upheld the conviction of the appellant of offences u/s 376, 302, 201 IPC and Section 5/6 POCSO and the sentences awarded to him, except the death sentence for the offence u/s 302 IPC.