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No requisite intent to kill the victim will not attract death penalty under section 302: SC

Shatrughna Baban Meshram v. State of Maharashtra

Criminal Appeal NoS.763-764 of 2016

02 November, 2020.

Counsel for the Appellant: Senior Advocate Ms. Sonia Mathur

Counsel for the State: Advocate Sushil Karanjkar

The Hon’ble Supreme Court consisting of Justice of Uday Umesh Lalit, Justice Indu Malhotra and Justice Krishna Murari held in a case that, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 IPC, the offence in the present case does not deserve death penalty.

These appeals by Special Leave challenge the common judgment and order dated 12.10.2015 passed by the High Court in Criminal Appeal No.321 of 2015 and Criminal Confirmation Case No.1 of 2015 affirming the judgment and order dated 14.08.2015 passed by the Trial Court in Special Case (POCSO Act) No.11 of 2013 and confirming the Death Sentence awarded to the Appellant on two counts i.e. under Section 302 of the Indian Penal Code (IPC, for short) and under Section 376A of IPC.

In the F.I.R filed on 11.02.2013 at 9.25 P.M. by the father of the victim, he alleged the following: “This day 11.02.13, as there was a programme of Mahaprasad in Duttatraya Temple in the village I had gone there for taking meals at about 7.00 p.m. After taking meals I returned home at about 7.30 p.m. At that time I did not see my daughter Miss XXX at home. Therefore, I asked my father-in-law as to where my daughter was. On it, he told me, “Shatrughna Baban Meshram, aged 21 years, resident of Zatala has taken away your daughter XXX4 from me saying that he would reach her to you”. But Shatrughna did not bring my daughter to me. So I searched my daughter in the village. I saw my daughter XXX4 and Shatrughna Meshram lying in the new, under construction, building of Anganwadi. There was no pant on the person of my daughter. It was lying beside. Her face was bitten and private parts were swollen. I came out with my daughter. In the meantime, Baban Sambhaji Meshram, aged 50 years also came there. He took Shatrughna to his house. I along with father-in-law and Vitthal Ghodam took my daughter in an auto from the village to Dr. Jaffar Siddiqui from Kurli. The doctor examined her and declared her dead. So we returned home.”

Other facts that are most relevant are that an ordinance was passed on 3.2.2013. Subsequently, Criminal Amendment Act was passed on 3.4.2013, which was given retrospective from 3.2.2013. So there are three situations, (i) the law before the Ordinance, (ii) between Ordinance and the amendment and (iii) after the amendment. The question arises as to under which of the three shall the accused be punished.

The case came to the Trial Court. The Trial Court thus, by its order passed on 14.08.2015 awarded Death Sentence to the Appellant on two counts, i.e. under Section 302 of IPC and under Section 376-A of IPC; Rigorous Imprisonment for life under two counts, i.e. Section 376(1)(2)(f), (i) and (m) of IPC and under Section 6 of POCSO Act. The Court sentenced the accused on the same day. The Death Sentence was subject to confirmation by the High Court. On Appeal, the High Court upheld the conviction and sentence as recorded by the Trial Court and confirmed the Death Sentence.

The counsel for the Appellant, Senior advocate Ms. Sonia Mathur, among other things, contended that (i) The sentence of death having been passed on the same day when the conviction order was pronounced, there was non-compliance of Section 235(2) of the Code and as laid down by this Court in Allauddin Mian v. State of Bihar(1989) 3 SCC 5 , Malkiat Singh and others v. State of Punjab(1991) 4 SCC 341 and Ajay Pandit v. State of Maharashtra(2012) 8 SCC 43 , the infraction on that count was sufficient to consider commutation of the sentence of death to that of life imprisonment. (ii) The instant case being based on circumstantial evidence, as held by this Court in Bishnu Prasad Sinha v. State of Assam(2007) 11 SCC 467 , Sebastian @ Chevithiyan v. State of Kerala(2010) 1 SCC 58 , Purna Chandra Kusal v. State of Orissa(2011) 15 SCC 352 and Kalu Khan v. State of Rajasthan(2015) 16 SCC 492 , no death sentence be awarded and the appropriate punishment could be life sentence. (iii) Relying on the decisions of this Court in Ashok Debabarma @ Achak Debbarma v. State of Tripura(2014) 4 SCC 747 , Sudam v. State of Maharashtra(2019) 9 SCC 388 and Ravishankar alias Baba Vishwakarma vs. State of Madhya Pradesh(2019) 9 SCC 689, it was submitted that even if the circumstances on record were sufficient to record conviction against the Appellant, there were gaps in the evidence and the benefit of “residual doubt” ought to be extended in favour of the Appellant.

Sushil Karanjkar, learned Advocate for the State submitted that (i) All the aforesaid eight circumstances were individually established beyond any doubt and they collectively formed a clear and consistent chain ruling out every other hypothesis except the guilt of the Appellant (ii) He also submitted that the circumstances having been established beyond any shadow of doubt there was no room for any “residual doubt”. (iii) The factors that the crime in the instant case was gruesome and diabolical, where two and a half year old girl was subjected to sexual assault and the manner in which it was committed, were by themselves weighty and sufficient to tilt the balance against the Appellant and that as laid down by this Court in Mukesh and Another v. State ( NCT of Delhi) and Others, (2017) 6 SCC 1.

Answering the question of consistency of the applicability of the Amendment Act of 2013 with subsection 1 of Article 20 of the Constitution, the Court noted the following:

15. An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated. We must, therefore, declare that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”. Similar prescription in Section 6 of the POCSO Act, which came by way of amendment in 2019, would not be applicable and the governing provision for punishment for the offence under the POCSO Act must be taken to be the pre-amendment position as noted hereinabove. (Para 15)

16. However, in so far as the situation covered by Section 376A of IPC as amended by the Amendment Act is concerned, substantively identical situation was dealt with by Section 376A as amended by the Ordinance and the prescription of sentence in Section 376A by the Amendment Act is identical to that prescribed by Section 376A as amended by the Ordinance. Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman. Thus, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution. (Para 16)

The Court, after hearing the parties in length, and after examining all the circumstantial evidence in the case noted the following:

The circumstances proved on record are not only conclusive in nature but completely support the case of the prosecution and are consistent with only one hypothesis and that is the guilt of the Appellant. They form a chain, so complete, consistent and clear, that no room for doubt or ground arises pointing towards innocence of the Appellant. It is, therefore, established beyond any shadow of doubt that the Appellant committed the acts of rape and sexual assault upon the victim and that injury no.17 was the cause of death of the victim. (Para 21)

The Appellant is thus guilty of having committed offences punishable under clauses (f), (i) and (m) of sub-section (2) of Section 376 of IPC; and also, under clauses (j) and (m) of Section 5 read with Section 6 of the POCSO Act, (as it stood before it was amended by Act 25 of 2019). Since according to medical opinion, the death was because of injury No.17, the Appellant is also guilty of having committed offence punishable under Section 376A of IPC. (Para 22)

Answering the question as to whether the alleged act would come under culpable homicide amounting to murder or culpable homicide not amounting to murder, the Court referred to a catena of judgments and observed the following:

The guiding principles were summed up in State of Madhya Pradesh v. Ram Prasad39 to the effect that even if there be no intention to cause death, “if there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death” clause fourthly of Section 300 IPC will get attracted and that the offender must be taken to have known that he was running the risk of causing the death or such bodily injury as was likely to cause the death of the victim. Same principle is discernible from the decision of this Court in Dattatraya Ambo Rokade v. State of Maharashtra, (2019) 13 SCALE 187. (Para 27)

In the above regard, the Court held,

Considering the age of the victim in the present case, the accused must have known the consequence that his sexual assault on a child of 2 ½ years would cause death or such bodily injury as was likely to cause her death. The instant matter thus comes within the parameters of clause fourthly to Section 300 IPC and the question posed at the beginning of the discussion on this issue must be answered against the Appellant. The Appellant is therefore guilty of having committed the offence of culpable homicide amounting to murder. (Para 28)

The court, answering the submission of the Appellant to remit the sentence as the sentence was passed on the same day and is contradictory to section 235(2) of the Code of Criminal Procedure, referred to a number of judgments including Manoj Suryavanshi vs. State of Chhattisgarh, 2020 4 SCC 451 and Dagdu v. State of Maharashtra and observed the following:

Thus, merely on account of infraction of Section 235 (2) of the Code, the death sentence ought not to be commuted to life imprisonment. In any case we have afforded adequate and sufficient opportunity to the Appellant to place all the relevant materials on record in the light of principle laid down in Dagdu v. State of Maharashtra. (Para 34)

After holding the Appellant guilty of murder, the Court discussed extensively as to whether death sentence can be imposed when conviction under section 302 is based on circumstantial evidence. Among other judgments the court dealt in detail its judgments in Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat, (2011) 2 S.C.C. 764 and Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 S.C.C. 767 and summed up the law in the following words:

It can therefore be summed up:-

a) It is not as if imposition of death penalty is impermissible to be awarded in circumstantial evidence cases; and

b) if the circumstantial evidence is of an unimpeachable character in establishing the guilt of the accused and leads to an exceptional case or the evidence sufficiently convinces the judicial mind that the option of a sentence lesser than death penalty is foreclosed, the death penalty can be imposed. (Para 41)

To answer the third submission of the Appellant that the accused must be given the benefit of “Residual doubt”, the court referred to a number of United States Supreme Court cases and Indian cases and observed the following:

When it comes to cases based on circumstantial evidence in our jurisprudence, the standard that is adopted in terms of law laid down by this Court as noticed in Sharad Birdhichand Sarda and subsequent decisions is that the circumstances must not only be individually proved or established, but they must form a consistent chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the accused. On the strength of these principles, the burden in such cases is already of a greater magnitude. Once that burden is discharged, it is implicit that any other hypothesis or the innocence of the accused, already stands ruled out when the matter is taken up at the stage of sentence after returning the finding of guilt. So, theoretically the concept or theory of “residual doubt” does not have any place in a case based on circumstantial evidence. As a matter of fact, the theory of residual doubt was never accepted by US Supreme Court as discussed earlier.

However, as summed up in Kalu Khan, while dealing with cases based on circumstantial evidence, for imposition of a death sentence, higher or stricter standard must be insisted upon. The approach to be adopted in matters concerning capital punishment, therefore ought to be in conformity with the principles culled out in paragraph 41 hereinabove and the instant matter must therefore be considered in the light of those principles. (Para 52)

After elaborated discussion, the Court, classifying the case under 2 heads, explained how the present case failed to satisfy the second requirement. In this regard the court observed the following:

If the present case is so considered, the discussion must broadly be classified under following two heads: -
(A) Whether the circumstantial evidence in the present case is of unimpeachable character in establishing the guilt of the Appellant or leads to an exceptional case?
(B) Whether the evidence on record is so strong and convincing that the option of a sentence lesser than a death penalty is foreclosed?

Going by the circumstances proved on record and, more particularly the facets detailed in paragraph 19 hereinabove as well as the law laid down by this Court in series of decisions, the circumstances on record rule out any hypothesis of innocence of the Appellant. The circumstances are clear, consistent and conclusive in nature and are of unimpeachable character in establishing the guilt of the Appellant. The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one.

However, if the case is considered against the second head, we do not find that the option of a sentence lesser than death penalty is completely foreclosed. It is true that the sexual assault was very severe and the conduct of the Appellant could be termed as perverse and barbaric. However, a definite pointer in favour of the Appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 which was the cause of death, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC. In matters where the conviction is recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove, where the victims were below 16 years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence. This aspect is of crucial importance while considering whether the option of a sentence lesser than death penalty is foreclosed or not. (Para 53)

We therefore, find that though the Appellant is guilty of the offence punishable under Section 302 IPC, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 IPC, the offence in the present case does not deserve death penalty. (Para 54)

Dealing with the second count on which sentence was imposed under Section 376A of IPC, the Court noted the following:

The second count on which death sentence has been imposed is under Section 376A of IPC. As noted earlier, the offence was committed on 11.02.2013 and just few days before such commission, Section 376A was inserted in IPC by the Ordinance. As concluded by us in paragraph 16 hereinabove, the ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitely guilty of the offence punishable under Section 376A IPC. But the question remains whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. (Para 55)

Concluding, the Court held:

Consequently, while affirming the view taken by the Courts below in recording conviction of the Appellant for the offences punishable under Sections 302 IPC and 376A IPC, we commute the sentence to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of IPC, and under Section 6 of the POCSO Act are affirmed. (Para 57)

Consequently, the appeals were allowed to the aforesaid extent.

Kalidharun K M



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