Judgment:
R. Kantha Rao, J.
1. The Referred Trial and the Criminal Appeal arise out of the judgment dated 1-5-2009 passed by the II Additional Sessions Judge, Madanapalle, Chittoor District in Sessions Case No. 318 of 2008.
2. The appellant (Goulla Appaiah) was tried for the charges under Sections 302, 376(2)(f) and 201 of IPC, was convicted for the said charges and sentenced to death for the offence under Section 302 of IPC, imprisonment for life for the offence under Section 376(2)(f) of IPC and to pay a fine of Rs. 2000/- and also to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 2000/- for the offence under Section 201 of IPC.
3. Since capital punishment was imposed by the learned Sessions Judge, he made a reference and submitted the proceedings to the High Court under Section 366 of Cr. P.C. for confirmation. The appellant also filed the appeal challenging the conviction and sentence passed by the trial Court against him. Thus, both the reference made by the trial Court and the appeal preferred by the appellant stood for consideration before us.
4. Briefly stated, the prosecution case is as follows:
The appellant: (Goulla Apalah) who was aged 33 years on the date of incident, is a resident of Motlapalli village, H/o Diguvapalle, Chowdepalli Mandal of Chittoor District. P.W.-1 (G. Venkataramana) who is the father of the deceased is also a resident of the same village. It is said that at about one year prior to the incident, the appellant secured a loan of Rs. 2,000/- from one Thyagaraju with the help of P.W.-.l, but did not repay the same as agreed. At the instance of the person who advanced the loan, P.W. 1 pressurized the appellant to repay the loan which ultimately led to ill feelings between the appellant and P.W-1. This apart, about one year prior to the incident, the appellant hacked his younger brother with knife over a dispute relating to property. P.W.-1 supported the cause of the injured who is the younger brother of the appellant and at his instance the younger brother of the appellant lodged a report in the police station in respect of the said incident and ultimately the appellant was charge sheeted for the offence punishable under Section 307 of IPC. This was also said to be another reason for the appellant developing grouse against P.W.-1 and he was waiting for an opportunity to wreck vengeance against P.W.-1.
5. While so, on 29-8-2007 at about 6.00 p.m., while returning from Punganur after attending the Court of Assistant Sessions Judge, the appellant noticed the deceased (Goulla Sarthika), aged six years who was playing with P.W. 5 (G. Ganesh) and L.W. 9 (Karthik) on the road near the culvert situate on the southern side of the village. The appellant with an intention to kill the deceased, took away the deceased into the bushes and Kanuga trees situate on the bed of Yerracheruvu (tank) by threatening P.W. 5 and L.W. 9, forcibly committed rape on the deceased and when she raised cries, he killed her by throttling and threw the dead body on the edge of a water pit near Yerracheruvu with a view to screen the offence.
6. At about 6.15 p.m., P.W.-6 (Y. Krishnappa) and L. W.-11 (Yenamala Ramakrishna) while returning to their village through Yerracheruvu after grazing their sheep and cattle heard the sound of throwing some object at the water pit situate in the tank and when they drew their attention to the said place, from which they heard the sound, they noticed the appellant running away from the said place. While she was collecting mint leaves from the field situate nearby Yerracheruvu P.W.-7 (T. Sarada) saw the appellant keeping some object in his hands and was proceeding towards Yerracheruvu. She thought that it may be a lamb. Soon after that she Heard the sound of throwing some object into the water. Subsequently, while she was carrying the mint leaves' to her house, she noticed the appellant on the way proceeding hurriedly and fastly towards the village. P.Ws. 3 and 4 (G. Surendra and L. Venkataramana) at about 6.30 p.m., saw the appellant proceeding hastily towards the village through the fields questioned him, as to why he was proceeding in a haste but the appellant did not respond and went away.
7. At about 7.00 p.m., P.W. 1, the father of the deceased returned home after grazing the goats, did not find his youngest daughter (the deceased) in the house and enquired his wife Goulla Narasamma (L. W.-2). Goulla Narasamma replied that she might have gone to her grandmother's house or somewhere else. After having meal, P.W. 1 went to the house of his brother-in-law and enquired him and his mother about the deceased, they stated that the deceased did not come there. Thereafter, from 8.00 p.m. onwards till 1.00 a.m. he, his relatives and some other people of the village searched for the deceased, but she could not be traced. On the morning of the next day i.e., at 7.00 a.m. on 30-8-2007 M. Srinivasulu, his brother-in-law, Krishna, B. Reddeppa and Appaiah (the appellant) informed him that they found the dead body of the deceased on the edge of the water pit in Yerracheruvu. Immediately he rushed to the said place along with the villagers found the deceased lying dead on the edge of the water pit, brought the dead body to his house, kept the same in front of his house in the vacant place. Subsequently, he came to know through villagers, some of whom were examined as witnesses in the case that the appellant might be responsible for the offence.
8. Thereafter, on a report lodged by P.W. 1 in Chowdeypalle police station at about 3.00 p.m., P.W. 15 (B. Shankar Mallaiah), the Sub-Inspector of Police registered a case in Cr. No. 50 of 2007under Section 174 of Cr. P.C. (supicious death) and commenced investigation. On 1-9-2007, P.W. 13 (M.V. Murali), the Head Constable after receiving the post-mortem report, altered the section of law from 174, Cr. P. C. to Sections 302 and 376 of IPC. Thereafter, P.W. 14 (Y. Malleswara Reddy), the Inspector of Police, Punganur Circle took up investigation and on completing investigation, he filed the charge-sheet.
9. The prosecution in order to establish the guilt of the appellant before the trial Court examined P.Ws. 1 to 15, marked Exs. P-1 to P-17 and M. Os. 1 to 4.
10. Among the witnesses, P.W. 1, the father of the deceased spoke about the missing of the deceased and suspecting the appellant for committing the crime on account of enmity with him. P.W. 2 (B. Reddeppa) spoke about the fact of the appellant tracing out the dead body of the deceased while he and G. Krishnappa along with the appellant were searching for the deceased. P.Ws. 3 and 4 spoke about their noticing the appellant proceeding hurriedly from Yerracheruvu towards the village through fields at about 6.30 p. m. P.W. 5 is a child witness, aged six years on the date of incident, he is a crucial witness in this case and he spoke about the fact of the appellant taking away the deceased towards Yerracheruvu while he, L. W. 9 (Karthik) and the deceased were playing in the evening. P.Ws. 6 and 7 (Y. Krishnappa and T. Sarada) testified the fact of their witnessing the appellant throwing some object into the water pit at Yerracheruvu (tank). P.W. 8 (P. Amaranatha), is a mediator present at the inquest held over the body of the deceased. P.W. 9 (P. Reddeppa) spoke about the seizure of some hair by P.W.-15 from the place of occurrence. P.W. 10 (K. Sahadeva Reddy) is another mediator spoke about the arrest of the appellant and seizure of the clothes of the appellant containing blood-stains which he wore at the time of incident. P.W. 11 (Dr. T. Ramachandra Prasad) examined the appellant on the requisition of police and issued certificate to the effect that the appellant is capable of committing sexual act. P.W. 12 (Dr. U. Vijayakumari) is the autopsy surgeon. P.W. 13 is the Head Constable who altered the section of law incorporating the offence punishable under Section 302 and 376 of IPC, after receiving post-mortem report. P.W. 15, the Sub-Inspector of Police and P.W. 14, the Inspector of Police are the Investigating Officers in this case.
11. After evaluating the above-mentioned evidence, the learned trial Court found the appellant guilty for the offence under Sections 302 and 376 and 201 of IPC, convicted him for the said offences and sentenced him to punishment as mentioned above.
12. Since the reference made by the learned Additional Sessions Judge for confirmation of death sentence and also the appeal preferred by the appellant are before us, we have to re-assess the evidence afresh and have to arrive at an independent finding as to the guilt of the appellant. In the event of concurring with the finding of the guilt arrived at by the learned trial Court, we have to examine whether the death penalty imposed by the trial Court against the appellant is warranted having regard to the nature of offence and facts and circumstances of the case.
13. We shall now in the first instance proceed to reappraise the evidence to satisfy ourselves as to the correctness of the finding of guilt recorded by the learned trial Court against the appellant.
14. We have heard the learned Counsel for the appellant and the learned Public Prosecutor appearing for the State.
15. The learned Counsel for the appellant would submit that the evidence brought on record by the prosecution which is circumstantial is not conclusive in nature, mainly the conviction recorded by the trial Court rested on the evidence of P.W. 5 who is child witness and it is quite unsafe to base the conviction of the appellant, relying on the evidence which is forthcoming in this case and as such the conviction recorded against the appellant is liable to be set aside in this appeal.
16. On the other hand, the learned Public Prosecutor appearing for the State would contend that the prosecution in this case proved all the circumstances relied upon and they put together lead to an irresistible conclusion about the guilt of the appellant and if found to be acceptable, it cannot be said that a conviction cannot be recorded basing on the evidence of a child witness and, therefore, the conviction passed by the trial Court against the appellant is proper, which needs no interference in this appeal.
17. The basic question requires consideration before assessing the other evidence is whether the deceased died homicidal death and prior to her death, whether she was subjected to rape. There being no direct witnesses to the occurrence, we have to arrive at a finding on this aspect basing on the medical evidence.
18. P.W.- 12, the autopsy surgeon found the following external injuries on the body of the deceased:
(1) Multiple small abrasions on the pressure area of the back, back of elbows, palms 1/2 x 1/2 cm. skirt deep, black in colour.
(2) Small abrasions on the both cheeks 1/2 x 1/2 cm. Size black in colour skin deep.
(3) Multiple abrasions and nail marks 1/2 x 1/2 cm. On the, left ear, back of the left ear and also on the back of the neck black in colour skin deep.
(4) III degree vaginal tear seen on mid-lateral aspect of the vagina left side, motion passed at the anal orifice.
According to her, all the above-stated injuries are ante-mortem in nature.
19. The following are the findings given by P.W. 12 relating to internal examination:
Neck muscles congested. Small blood clots seen in between the muscles. Hyoid bone fracture both horns. Thyroid cartilage congested. Tracheal mucosa congested. Stomach contains 100 ml. partly digested rice. Uterus congested. Vaginal Mucosa congested tear III extending from the vaginal orifice to the anus. Deep to rectum. Veginal swabs collected and preserved for chemical analysis.
20. After receiving the RFSL report, PW-12 gave her final opinion stating that the cause of the death of the deceased is on account of asphyxia due to throttling, which might have occurred 36 to 48 hours prior to post-mortem examination. She further opined that prior to her death, the deceased had undergone sexual intercourse.
21. According to PW-12, the external injuries noticed by her on the deceased might be caused while offering resistance to sexual assault. Therefore, from the medical evidence in this case, there need not be any doubt as to the fact that the deceased was done to death by throttling and before that, she was also subjected to forcible sexual intercourse which amounts to rape.
22. In a case based on circumstantial evidence, motive plays a very significant role and in this case the prosecution seeks to establish that the appellant had enough motive to commit the offence. The evidence of P.W. 1 indicates that with his help the appellant secured loan of Rs. 2,000/- from Thyagaraju about one and half year prior to the occurrence, as the appellant did not repay the loan, he persistently demanded the appellant to repay the same to Thyagaraju, due to which the appellant developed enmity with him. His evidence further discloses that about one year prior to the incident, the appellant hacked his younger brother over a dispute relating to property, in connection with the said incident P.W.-1 supported the cause of the younger brother of the appellant and got lodged a report through the younger brother of the appellant against the appellant and this was another reason for the appellant developing grouse against him.
23. These two aspects, which are said to be the causes for the appellant developing enmity towards P. W-1 were also spoken to by P.W.-2. P.W.-6 another witness stated in his deposition that the appellant has criminal background and a person of violent character, everybody in the village is scared of the appellant owing to his conduct and due to the fear of the appellant, though after hearing some sound, noticed the appellant running away from the pit near Yerracheruvu, he did not disclose the said fact to anybody in the village,
24. As could be seen from the suggestions put to the witnesses during the course of cross-examination and the examination of the appellant under Section 313, Cr. P. C. his version is not that there is no enmity between him and P.W.-1. His version appears to be that the enmity was on account of some other reasons but not as stated by P.W.-1. He also, however, claims to be not in good terms with the other material witnesses.
25. A doubt may arise regarding the fact that due to the above-mentioned reasons led to ill-feelings between him and P.W. 1 whether the appellant would resort to commit rape on the minor daughter of P.W. 1 aged six years and kill her. As to this, it may be stated that it depends upon the nature and character of the offender. Different persons are differently constituted. Some offenders may commit heinous crimes on account of enmity relating to the issues, which are not significant. The evidence of P.W.-6 clearly indicates that the appellant was of such a desperate character, everybody in the village is scared of him. The evidence on record indisputably reveals that there was enmity between the appellant and P.W. 1 and, therefore, the prosecution succeeded in proving that the appellant had enough motive to commit the offence against the daughter of P.W.-1.
26. The next aspect requires consideration is, some of the villagers witnessing the appellant proceeding in a hurried way towards the village from the place of occurrence soon after the offence said to have taken place. P.W. 3 stated in his deposition that on the date of incident at 6.30 p. m. while he was grazing the cattle in the field situate nearby Yerracheruvu, he noticed the appellant coming running in a hurried manner from Yerrucheruvu towards the village and when he enquired, the appellant proceeded towards the village without any reply. Similarly P.W. 4 also stated in his evidence that at about 6.00 or 6.30 p. m., on the date of incident while he was cutting the stems of maize crop in his land, noticed the appellant proceeding on the pathway running from Yerracheruvu towards the village. This witness is treated hostile by the prosecution on the ground that he did not state about the appellant hurriedly moving towards the village and on his enquiry, he did not give any reply. P.W. 6 stated in his evidence that on the date of incident at about 6.00 or 6.30 p.m. while he was returning from forest area along with his sheep, when he diverted his attention after hearing sound of some object thrown at the water pit situate near Yerracheruvu, he noticed the appellant running away from the pit. P.W.-7 stated in her evidence that while she was collecting mint leaves from the land situate near the place of occurrence, she noticed the appellant proceeding towards Yerracheruvu by keeping some object in his hands, she thought that it may be a lamb, thereafter suddenly she heard a big sound of throwing some object in the water, subsequently while she was carrying the mint leaves to her house from the field, she noticed the appellant on the way proceeding hurriedly and fastly towards their village.
27. The evidence of all the above-mentioned witnesses clearly indicates that soon after the occurrence they noticed the appellant near the venue of offence under the above-mentioned circumstances, subsequently the dead body of the deceased was found in the water pit on the bed of Yerracheruvu and, therefore, definitely the presence of the appellant and his proceeding towards the village in a hurried manner is a strong circumstance against him indicating his involvement in the commission of crime and except complete denial, there is no proper explanation from the appellant in this regard. The conduct of the appellant which is unusual is very much relevant as one of the circumstances in proving his guilt as laid down in Section 8 of the Evidence, Act. The witnesses above-referred are, not closely related to P. W, 1, they are the inhabitants of the same village and the appellant even though claims that they were not in good terms with him, absolutely there is no basis for all these witnesses being inimically disposed of towards the appellant,
28. The crucial circumstance on which strong reliance has been placed by the prosecution is that the deceased was last seen in the company of the appellant by P.W. 5 in the evening on the date of incident. P.W. 5 is a child witness and was aged six years, studying first standard on the date of incident. The learned trial Court by conducting preliminary examination satisfied that P.W. 5 was capable of understanding questions, given rational answers in response thereto and thus, considered him to be a competent witness. The appellant is a resident of the same village in which P.W. 5 also resides. P.W. 5 identified the appellant. He stated in his deposition which was recorded in the form of questions and answers that on the date of the incident he, the deceased and L. W. 9 were playing at the outskirts of the village opposite to the tank. They plunked some groundnuts and eating groundnuts and it was about 6.00 or 6.30 p.m. This witness further stated that the appellant came from the side of Gajulapalli, picked up the deceased (Goulla Sarthika) and dragged her, he and L. W.-9 followed the appellant to some distance, thereafter the appellant threatened them and due to fear they returned back to the village. He further deposed that the appellant took the deceased towards kanuga trees and subsequently, he saw the dead body of the deceased at the house of P.W. 1 on the morning of next day. Except the fact of eliciting from this witness that before his giving evidence he was briefed by the Additional Public Prosecutor as to how to give answers in the Court hall, the evidence of this witness remained unshattered on all material particulars.
29. Learned Counsel appearing for the appellant contended that since admittedly P.W. 5 was briefed by Additional Public Prosecutor as to how he has to give answers in the Court Hall, his evidence being tutored is not admissible. In support of her contention, learned Counsel placed reliance on Ramvilas v. State of Madhya Pradesh : 1985 Cri LJ 1773 wherein the Madhya Pradesh High Court (Gwalior Bench) held that where the statement made by the witness to the police was narrated to him not when he was in the witness-box but shortly before entering the witness-box, the evidence of such witness would be inadmissible in view of Section 162, because the fact remains that it was narrated to him for the purpose of giving evidence at the trial. The statement tantamounts to making use of the statement at the trial, which is prohibited by Section 162 of Cr. P. C.
30. The said decision in our view is not applicable to the facts of the present case. In this case, the contents of the police statement were not read over to P.W. 5 nor even there is anything on record to show that P.W. 5 was tutored by the Additional Public Prosecutor. P.W. 5 only stated in his evidence that the Additional Public Prosecutor only briefed him as (to) how to give answers in the Court Hall. From this what all can be understood is that P.W. 5 being a child witness was appraised by the Additional Public Prosecutor as to the atmosphere in the Court and the way in which P.W. 5 has to behave and respond to the questions of the Court. P.W. 5 did not state anywhere in his deposition that the Additional Public Prosecutor tutored him with reference to which facts he has to give evidence in the Court. Therefore, despite the admission of P.W. 5 that the Additional Public Prosecutor briefed him as to how to give answers, no stigma can be attached to the evidence of P.W. 5 and if his evidence is otherwise reliable, its credibility cannot be questioned on the ground that it is hit by Section 162, Cr. P.C.
31. It is well settled that the competency of a child witness to give evidence is not considered in relation to his age, but basing on his capacity to understand the questions and to give rational answers. There is no legal bar to act upon the testimony of a child witness. In the instant case, absolutely P.W. 5 or his father has no enmity with the appellant. Perusal of the deposition of P.W. 5, which contains the quesions put by the Court and the answers given by P.W. 5 clearly shows that he is an independent witness capable of understanding the questions and to give rational answers. A close scrutiny of his deposition and from the tenor of answers given by him, we considered P.W. 5 to be a natural witness and his testimony is not the result of tutoring.
32. From the evidenced P.W. 5, the prosecution could successfully be able to prove that the appellant forcibly took away the deceased while she was playing with P.W. 5 and L. W. 9 and it was about 6.00 or 6.30 p.m. The appellant was last seen by P.W. 5 and L.W. 9 forcibly taking away the deceased towards Yerracheruvu, the medical evidence clearly indicates that in close proximity, thereafter the deceased was raped and was killed by throttling. In these circumstances, a burden is cast on the appellant to explain that after he forcibly took away the deceased while she was playing with P.W. 5 and L. W. 9 what happened to her. In the absence of any proper explanation thereof from the appellant an adverse inference against his conduct can be drawn to the effect that he must be the author of the crime. In the instant case except making a total denial, absolutely there was no explanation from the appellant as to what happened to the deceased subsequently. This is a strong circumstance pointing towarsd the guilt of the appellant which coupled with the other evidence can form the basis of conviction for the offences of rape and murder against the appellant. Furthermore, the prosecution also through the evidence of P.Ws. 3, 4, 6 established that the appellant pretended as if he was searching for the deceased along with them and ultimately he showed the dead body on the edge of the water pit on the tank bed of Yerracheruvu. From the evidence of these witnesses, an inference can be drawn to the effect that the appellant had knowledge about the existence of the dead body at the place where in fact it was lying. The conduct of the appellant who was in fact in inimimcal terms with P.W. 1 searching for the deceased and ultimately tracing out the dead body of the deceased is quite unusual in the sense that he being in inimical terms with P.W. 1 could not have taken up the task of searching for the deceased and the said conduct is very much relevant in proving the guilt of the appellant.
33. Another circumstance which also requires consideration is that from the evidence of P.W. 14, the Inspector of Police and P.W. 10, the mediator, it is made out that after the appellant was arrested, he was seen wearing the clothes containing bloodstains, they were seized under the cover of Ex. P-6 mediator's report. According to the version of the Investigating Officer, the appellant in fact washed the said clothes but still there were traces of blood on the clothes M. Os. 3 and 4, they were sent for chemical analysis and Ex. P-8 RFSL report showed that the clothes seized from the appellant were containing blood-stains. Though the blood group could not be determined, the very fact that the appellant was wearing blood-stained clothes and in the absence of any plausible explanation thereof from the appellant about wearing blood-stained clothes, it can be treated as an additional circumstance against the appellant.
34. Reliance is placed by the learned Counsel for the appellant on Ram Lakhan Singh v. The State of Uttar Pradesh AIR 1977 SC 1936, wherein the Apex Court while dealing with the case of dacoity with murder held, as follows:
In Indian system of law an accused starts with a presumption of innocence. His bad character is not relevant unless he gives evidence of good character in which case by rebuttal, evidence of bad character may be adduced. Where families of accused and deceased at daggers drawn, the non-examination of neighbouring independent witnesses and examination only of certain inmates of the house of deceased and witnesses inimical with the accused. Participation of accused in crime, not free from reasoanble doubt and benefit of doubt must be given to the accused.
35. The above decision relied upon by the learned Counsel appearing for the appellant was rendered in relation to different fact-situation to that of the present one. In the instant case, the material witnesses basing on whose evidence reliance was placed by the learned trial Court are not closely related to P.W. 1. They are the inhabitants of same village where the appellant and P.W. 1 are also residing. Though the defence version is that the said witnesses were not in good terms with the appellant, absolutely no material was brought on record by the defence indicating the said fact. The evidence of P.Ws. 2 to 7 reveals that they saw only the appellant moving under suspicious circumstances. They did not exaggerate their version. There may be some minor discrepancies in their version, which are bound to occur in the evidence of natural witnesses. Absolutely there was no motive for all the witnesses to falsely implicate the appellant in a grave crime of this nature.
36. However, normally all the witnesses who saw the appellant while he was proceeding towards the village and also P.W. 5 who saw the appellant forcibly taking away the deceased would have informed the sme to P.W. 1 and others while they started searching for the deceased. But they did not disclose the facts within their knowledge till the dead body of the deceased was brought to the house of P.W. 1.
37. But the abovesaid conduct of the witnesses does not render their testimony undependable. From the evidence on record, it is made out that the appellant has criminal record and is a person of violent dispositions. It was also borne out from the record that the villagers are scared of the appellant and it might be the reason for the witnesses about not disclosing the facts known to them immediately. It is manifest from the way in which the witnesses reacted that after coming to know about the diabolic act, they gained courage to disclose the facts within their knowledge to the police and also to testify the said facts before the Court. Therefore, the delay in disclosing the facts by the abovementioned witnesses including P.W. 5 does not render their evidence unreliable because they are natural witnesses and their evidence inspires our confidence.
38. Learned Counsel appearing for the appellant also contended that there is delay in lodging the first information report. The dead body of the deceased was discovered at 7.00 a.m. The report was lodged by P.W. 1 at 3.00 p.m. in Chowdeypalle Police Station situate at a distance of 7 kms. from the village of P.W. 1, for which there is bus facility. As to this, we may state that the delay by itself in each and every case does not become fatal to the prosecution version leading for drawing an adverse inference against its case. Whenever there is any delay, the Court is required to examine the version of material witnesses with great care and circumspection and after such strict scrutiny, if the evidence of such witnesses is found to be truthful and reliable, the Court can safely act upon such evidence notwithstanding the fact that there is some delay in lodging the first information report. In the instant case, the circumstances do not indicate that there was any scope for introducing false, improved or distorted version because of the delay. Therefore, in our view a few hours delay in lodging the first information report is inconsequential.
39. P.W. 15, the Sub-Inspector of Police seized some hair of 3' in length from the scene of offence under cover of Ex. P-5 mediators' report in the presence of mediators, P.W. 9 and LW-17 (Buddannagari Ramakrishna) while observing the scene of offence. P.W. 9, the mediator as well as P.W. 15, the Sub-Inspector of Police testified the said fact. Except that PW-9 is not a local witness, his evidence is not discredited in the cross-examination and thereby the prosecution proved collecting of hair from the scene of offence. PW-15 sent the said hair to the R. F. S. L., Tirupathi along with the hair collected from the head of the appellant when PW-11, the doctor examined the appellant regarding the potency of the appellant. Ex. P-8 is the report received from the R. F. S. L., which revealed that both the hair sent for analysis, possess similar morphological characters. The evidence on this aspect, therefore, indicates that the hair collected from the scene of offence is that of the appellant and it is one of the important circumstances connecting the appellant with the crime.
40. The contention urged by the learned Counsel appearing for the appellant is that no spermatozoa was detected on the clothes of the deceased as well as the appellant and thereby, it cannot be said that the offence has been committed by the appellant is of no avail for the reason that absence of spermatozoa on the clothes and body of the deceased and also on the clothes of the appellant does not indicate that no rape was committed, since the clothes of the appellant and the deceased were not examined immediately.
41. The above circumstances are conclusive in nature in the matter of proving the guilt of the appellant and they are found to be imcompatible with the innocence of the appellant or the guilt of any other person. They rule out any possibility of presumption of innocence of the appellant. All the chain of incriminating circumstances unerringly prove that the appellant alone and nobody else is the perpetrator of crime. Thus, we concur with the finding of the learned trial Court regarding the conviction against the appellant for the offences under Sections 302, 376 and 201 of I. P. C.
42. The next question to be dealt with is the punishment imposed by the trial Court against the appellant. The trial Court having recorded a conviction against the appellant for the offences of rape and murder of a minor girl aged 6 years, awarded death sentence against him considering it as rarest of the rare cases, the main factor which the learned trial Court took into consideration is the nature of offence committed by the appellant.
43. Before arriving at an appropriate conclusion regarding the punishment to be inflicted on the appellant, it is necessary to refer to certain principles laid down by the Apex Court in the matter of awarding capital punishment.
44. The principle emerges from Bachan Singh v. State of Punjab : (1980) 2 SCC 684 : 1980 Cri LJ 636 is that life imprisonment is a rule and death is an exception. The death penalty shall not be inflicted except in gravest cases of extreme culpability. The Court has to strike the balance between the aggravating and the mitigating circumstances before exercising the option. The circumstances of the offender have also to be taken into consideration along with the circumstances of the witnesses. The death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. Whereas in Machhi Singh v. State of Punjab : AIR 1983 SC 957 : 1983 Cri LJ 1457, the Apex Court apart from laying down the general principles warranting awarding death penalty, gave some categories of offences where death penalty is justified. One of the categories mentioned in Machi Singh is that death penalty can be imposed when the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
45. The learned Public Prosecutor appearing for the State relied upon a decision reported in State of U. P. v. Satish : AIR 2005 SC 1000 : 2005 Cri LJ 1428 wherein dealing with the case of rape and murder of a child based on circumstantial evidence, the Apex Court held that awarding death sentence would be proper and he contended that the death sentence passed by the trial Court may be confirmed.
46. However, in Bantu alias Naresh Giri v. State of M.P. : 2001 (2) ALD (Cri) 904 : 2002 Cri LJ 211 (SC) the Apex Court held that though the rape and murder of a girl is a heinous offence, it is not one of the rarest of the rare cases warrating the death sentence. In Ramji Rai v. State of Bihar : (1999) 8 SCC 389 : 2000 Cri LJ 19 relied upon by the learned Counsel appearing for the appellant, the Apex Court pointed out that it is a well settled law that while upholding a conviction for the offence of murder, the penalty of death is to be awarded only in rarest of the rare cases when the Court comes to the conclusion that the lesser sentence of imprisonment for life would not meet the ends of justice and also expressed the view that it is not possible to precisely categorize as to what are the rarest of the rare cases in which the alternative option of awarding life sentence is, thus, foreclosed. The Apex Court also keeping in mind the principles laid down in the case of Machhi Singh : 1983 Cri LJ 1457 arrived at the conclusion that the trial Court has not applied its mind to the settled principles and has proceeded more on philosophic than on realistic grounds and the reasons given by the trial Court do not conform to the guidelines laid down by the Apex Court for exercising the option to award the death sentence.
47. In Swamy Shraddananda v. State of Karnataka : (2007) 12 SCC 288 : AIR 2007 SC 2531 in a case relating to murder of wife with a motive of usurping her property and burying the dead body in the backyard of the house, the case entirely resting on the circumstantial evidence, Justice S. B. Sinha, one of the learned Judges of the Apex Court expressed the view that in our country where we do not have a sentencing policy unlike some other countries, each case may have to be considered on its own merit.
48. According to the learned Judge, where conviction Is solely based on the circumstantial evidence, while imposing death sentence, which is unique in it's irrevocability it should be borne in mind that the circumstantial evidence cannot be presumed to be foolproof of the Instances.
49. Having regard to the facts and circumstances of the case, the learned Judge was of the view that life sentence is adequate punishment.
50. However, Justice Markandey Katju, another learned Judge of the Bench disagreeing with Justice S. B. Sinha on sentence, expressed view that it is not correct to say that only direct evidence is strong evidence while circumstantial evidence is weak evidence, both kinds of evidence can be strong in a given situation, the only requirement in circumstantial evidence is that the chain of links connecting the accused with the crime should be established beyond reasonable doubt and in the opinion of the learned Judge, the case clearly falls within the category of the rarest of the rare cases and there may be gross travesty of justice if the death is not confirmed. Accordingly, the learned Judge confirmed the death sentence on the accused.
51. In view of the difference of opinion with regard to the quantum of punishment, the matter was referred to a Larger Bench and the Larger Bench in Swamy Shraddananda v. State of Karnataka : (2008) 13 SCC 767 : 2008 Cri LJ 3911 held as follows:
in Aloke Nath Datta v. State of W.B. (2007) 12 SCC 230 Sinha J. gave some very good illustration from a number of recent decisions in which on similar facts this Court took contrary views on giving death penalty to the convict, athough the fact situation may appear to be somewhat similar' and further 'it is evident that different Benches had taken different view in the matter.
Katju, J. in his order passed in this appeal said that he did not agree with the decision in Aloke Nath Dutta. in that it held that death sentence was not to be awarded in a case of circumstantial evidence; Katju, J. may be right that there cannot be an absolute rule excluding death sentence in all cases of circumstantial evidence (though in Aloke Nath Dutta, it is said 'normally' and not as an absolute rule). But there is no denying the illustrations cited by Sinha, J., which are a matter of fact.
52. It was further held that the truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or it's commutation by this Court depends a good deal on the personal predilection of the Judges constituting the Bench.
53. The Apex Court further held that both the Constitution Benches in Bachan Singh : 1980 Cri LJ 636 and Machhi Singh 1983 Cri LJ 1457 firmly declined to be drawn into making any standardization or categorization of cases for awarding death penalty. It was further held that the principle of rarest of rare cases laid down in Bachan; Singh, the Apex Court held that the practical application of standardization and classification of rarest of rare cases in Machhi Singh has no exhuastiveness of the principles laid down 25 years ago and expressed the view that the expression rarest of rare cases and extreme expression unquestionably indicate that a relative category based on comparison with other cases of murder.... Even though the categories framed in Machhi Singh provide very useful guidelines, none-theless those cannot be taken as inflexible, absolute or immutable. It was further held that even in those categories, there would be scope for flexibility as observed in Bachan Singh itself.
54. Ultimately the larger Bench concurred with the view taken by S. B. Sinha, J. and substituted the death sentence given to the appellant by the trial Court and confirmed by the High Court by imprisonment for life and directed that the accused shall not be released from prison till the rest of his life. While commuting' the death sentence, the Larger Bench expressed the following view:
Further, the information of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology.
55. What emerges from the foregoing discussion is that specific guidelines cannot be provided pointing out as to when the death penalty can be imposed and when the life sentence is sufficient. It depends on the facts and circumstances of each case either based on direct or circumstantial evidence. But, the crucial aspect which has to be borne in mind is that apart from other factors, the Court has to take into consideration, the quality of the evidence basing on which the finding of guilt is arrived at.
56. In the instant case before us, there is no, dispute about the fact that the offence committed by the appellant is most heinous and barbarous. However, the important fact, which has to be kept in mind is that the conviction recorded by the learned trial Court is mainly based on the evidence of a child witness who is aged 6 years.
57. In Suresh v. State of U.P. : AIR 1981 SC 1122 : 1981 Cri LJ 746 the Apex Court obsrved as follows:
Children, in the first place, mix up that they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjoined thoughts which trend to stray. The extreme sentence cannot seek its main support from evidence of this kind which even if true, is not safe enough to act upon for putting out a life.
58. What emerges from the law laid down by the Apex Court in the judgments referred above is that apart from nature of the offence, the circumstances in which it is committed, the circumstances of the offender, the Court while striking a balance between aggravating and mitigating factors for the purpose of making choice between death penalty and life sentence shall also take into consideration the kind of evidence basing on which the conviction is recorded.
59. Turning to the instant case before us, no doubt, the offence is most heinous and shocks our coscience. But keeping in view the factors viz., that the case is based on circumstantial evidence and also that the conviction mainly rested on the evidence of child witness who is aged 6 years, we deem it not appropriate to confirm the death sentence awarded by the trial Court. Accordingly, we set aside the death sentence passed against the appellant and sentence the appellant to imprisonment for life.
60. In the result, the conviction recorded by the trial Court against the appellant for the offences under Sections 302, 376(2)(f) and 201 of I. P. C. is confirmed. The death penalty imposed by the trial Court against the appellant is commuted to imprisonment for life. Accordingly, the reference is answered and the appeal preferred by the appellant is partly allowed.