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'Crime Test' & 'Criminal Test' Not Properly Applied : Supreme Court Commutes Death Sentence Of Man Convicted For Rape & Murder Of 8 Year Old Girl

Sohini Chowdhury
14 May 2022 4:44 AM GMT
Crime Test & Criminal Test Not Properly Applied : Supreme Court Commutes Death Sentence Of Man Convicted For Rape & Murder Of 8 Year Old Girl

Taking note of the fact that the Courts below had not given the required attention to the 'crime test' and the 'criminal test' while awarding and affirming death penalty, the Supreme Court, on Friday, commuted death sentence of an accused, who was convicted for rape and murder of a 8 year old girl-child.

"…we are of the considered view that the 'crime test' and the 'criminal test' require to be followed before awarding capital sentence, did not gather the required attention of the trial Court as also the High Court."

A Bench comprising Justices A.M. Khanwilkar, Dinesh Maheswari and C.T. Ravikumar upheld the conviction for offences under Sections 302, 376A and 376(2)(i) of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offence Act, 2012 (POCSO) as modified by the Madhya Pradesh High Court, but commuted the death sentence to life imprisonment. Considering that the 8 year old girl-child was raped and murdered in an 'extremely brutal manner' it awarded life sentence extending to 30 years without remission/early release.


On 10.09.2014, the deceased, who was then 8 years of age was stripped, raped and strangled by her uncle. On 20.09.2014, an FIR was registered at the Police Station, Dabra and on the same day he was arrested. Upon conclusion of trial, he was convicted under Sections 302, 376A and 376(2)(i) of the IPC and Section 6 of the POCSO and awarded death sentence. The conviction was based on circumstantial evidence. The High Court affirmed the death sentence, but set aside the conviction and sentence of offence under Section 376A on technical reasons. It disagreed with the findings of the Trial Court with respect to the admissibility and evidentiary value of the underwear seized from the place of occurrence, which was treated to be that of the accused.

Contentions raised by the appellant

Amicus Curiae, Ms. Sonia Mathur, appearing on behalf of the accused, submitted that the conviction was on the basis of circumstantial evidence, but the material on record indicated that the chain of circumstances was not complete. She submitted that there was no medical evidence to establish the presence of the accused at the place of occurrence; FSL report was inconclusive; there was incongruity in doctor's opinion; date of birth of the deceased was not proved by adducing evidence; no independent witness was examined to prove the body and clothes of the deceased was recovered at the instance of the accused; testimonies of related witness was taken into account; no DNA test was conducted.

Contentions raised by the respondent

Advocate, Mr. Pashupatinath Razdan, appearing for the State of Madhya Pradesh defended the concurrent findings of the Courts below. He submitted that the failure to comply with Section 53 Cr.P.C. was inconsequential in the present matter; testimonies of witnesses were uncontroverted and credible; last seen theory was correctly applied; recovery of body which was proved by other witnesses cannot be discredited. It was asserted that the chain of circumstances was complete.

Analysis by the Supreme Court

Expert opinion cannot be taken out of the ambit of judicial scrutiny

The Court noted that only rarely is death penalty awarded when the conclusion regarding the connection of the accused with the offence is based on circumstantial evidence. With respect to the incongruity pointed out by the accused in the opinion of the doctor who conducted the post mortem, the Court noted that like other evidence, the expert opinion of the doctors also needs proper appreciation by the Courts. Though the opinion of the doctor with the post- mortem report is entitled to get great weight, it cannot be taken out of the ambit of judicial scrutiny. Upon examining the same, the Court affirmed the findings of the Courts below, that asphyxia by throttling is the cause of death and the grave injuries sustained by the deceased on the private parts were also sufficient to cause death in ordinary course of nature.

Omission to carry out accused person's DNA profiling by itself is not fatal

On the issue of non-conduct of DNA profiling under Section 53A CrPC, it opined that omission to carry out accused person's DNA profiling by itself is not fatal in cases of such nature.

Not prudent to base conviction solely on last seen theory

With regards to the last seen theory, the Court observed that the same is applicable to crimes carried out in secret during night, when it would be difficult to have eye-witnesses. The Apex Court has noted in a catena of judgments that it would not be prudent to base conviction solely on last seen theory. Referring to the same, the Court decided not to interfere with the findings of the Courts below in this regard as the present conviction was not solely based on such theory.

Witness being related to the deceased, by itself, is no reason to discredit testimony

Regarding the related witness, who was in this case, the grandfather of the deceased, the Court was of the view that being related to the victim, by itself, is no reason to discredit his testimony. The Court also refused to question the admissibility of the testimony of the chance witness, who saw the accused coming out from the place of occurrence. It held his testimony to be res gestae admissible under Section 6 of the Evidence Act.

Recovery at the instance of accused was sufficiently corroborated in absence of independent witness

The recovery of the body of the deceased at the instance of the accused, though not proved by independent witnesses, had sufficient corroboration as per the opinion of the Court.

Re-appreciation of rest of the evidence to see they point only towards the accused is correct approach in circumstantial evidence cases

When one piece of evidence was discarded by the High Court, the re-appreciation of the entire record to consider whether the rest of the circumstantial evidence and the supporting materials would unerringly point to the guilt of the appellant alone, was held to be the correct approach, in view of the fact that conviction was based on circumstantial evidence.

The Court did not find any perversity on the concurrent finding that the deceased was subjected to rape. Considering that the accused had constricted the neck of a 8 year old with great force, the Court noted that it cannot be said to have been done without intention to take her life and hence opined, he was rightfully convicted for offence punishable under Section 302.

Issue of Sentencing

The Court noted that is cases of death penalty, the statutory requirement under Section 354(3) Cr.P.C. needs to be fulfilled. Section 354(3) reads as under -

"When the conviction for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such offence."

Referring to Shankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC 546, it observed that in death penalty cases, apart from the 'rarest of rare test', the Courts are required to apply 'crime test' (aggravating circumstances) and 'criminal test' (mitigating circumstances). Considering that the trial court had considered the question of sentence and awarded the same on the very same it, it was of the view, that in the present case, proper attention was not given to the tests enunciated by the Apex Court. It stated, the brutal and heinous nature of the crime is no doubt aggravating circumstance, but the mitigating circumstances like, the appellant had no criminal antecedents; he hails from a poor socio-economic background; his unblemished conduct inside the jail; he was 25 years old at the time of offence, cannot be ignored.

"Hence, viewing the issue taking into account the aforesaid aspects, we do not find any reason to rule out the possibility and the probability of the reformation and rehabilitation of the appellant."

It further noted -

"The long and short of the discussion is that the present case cannot be considered as one falling in the category of 'rarest of rare cases' in which there is no alternative but to impose death sentence."

Though the death sentence was commuted to life imprisonment, taking into account the brutality of the incident, the Apex Court awarded an actual punishment for 30 years without remission/premature release.

Case Title: Veerendra v. State of Madhya Pradesh Criminal Appeal Nos. 5 and 6 of 2018

Citation : 2022 LiveLaw (SC) 480

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