'Possibility Of Reformation Can't Be Ruled Out': Supreme Court Commutes Death Penalty Of Man Convicted For Murder & Sexual Assault Of 4 Year Old

The Supreme Court on Tuesday, considering the possibility of reformation as per behavioural and mental assessment reports, converted the death penalty of a convict guilty of sexual assault and murder of a 4-year-old child, to an imprisonment sentence.

The bench of Justices BR Gavai, Aravind Kumar and KV Viswanathan was hearing a challenge to the Gujarat High Court's order confirming the conviction and death sentence imposed on the appellant/accused for offences under Sections 302, 364, and 377 of the Indian Penal Code and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

While the Court upheld the conviction, it referred to (1) the 'Mitigation Investigation Report' by Project 39A; (2) a report of the Superintendent of Vadodara Central Jail and (3) a Report by the Hospital for Mental Health to consider social, psychological and behavioural aspects of the accused.

The court reduced the death sentence of the accused to a sentence of imprisonment for 25 years as "the present is not a case where it can be said that the possibility of reformation is completely ruled out."

As per the facts, the accused took the 4-year-old deceased from his place on the pretext of buying him ice cream while the parents of the deceased were away at work. The accused had taken the deceased, sexually assaulted him and killed him by strangulation.

A crucial testimony was of the deceased's aunt (PW 10) who met the accused when he came to take the deceased for ice cream.

The Court noted that the statement of the aunt of the deceased remained unhindered in the cross-examination. Her stand that she dissuaded the accused from taking the deceased to the ice cream shop despite the accused not listening to her was consistent throughout.

The time lag between the accused being last seen and the sighting of the dead body lying was also extremely short. The Court noted that the crime occurred between 12:00 noon and 05:00 PM on 13.04.2016. The timing is also corroborated by the doctor PW-8 who did the postmortem on 14.04.2016 between 03:35 PM and 04:45 PM and he further deposed that death would have occurred 24 to 36 hours before the postmortem.

There are 5 main aspects which the court considered to establish a strong chain of circumstantial evidence :

(1) The most important aspect observed by the Court was the lack of explanation given by the accused about the whereabouts of the deceased after he took him to the ice cream shop. The Court recorded :

The appellant offered no explanation as to what happened after the time he spent with the child and has no case that he handed over the child to any other person or that he dropped the child home.

Unlike in the case of grownups, where an explanation about the manner of parting company could in a given case be acceptable in the case of a small child who has been picked up from the neighborhood of his house, it would be normal to expect that the small child would be dropped back home or an explanation about entrusting of the child to another person to be safely taken home is given. The appellant's lack of explanation is to say the least baffling.

The Court thus concluded that the failure of any explanation on the part of the accused adds to the chain of circumstances proving against him as per S. 106 of the Evidence Act.

The Court held that such a failure of the accused to provide satisfactory reasoning as to how he parted ways with the deceased especially when last seen with him, with a close gap between time seen last and death goes against the burden cast upon him u/s 106.

"Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

"It is on this principle that this Court has repeatedly held that if an accused fails to offer an explanation, he fails to discharge the burden cast upon him under Section 106 and if he fails to offer a reasonable explanation that itself provides an additional link in the chain of circumstances."

(2) The second aspect considered by the Court was that the presence of the accused on the scene of the crime at 2 PM ( 3 hours before discovery of the dead body) was corroborated by several witnesses

(3) The doctor's opinion on the presence of injuries around the genitals and anal region added to the charges of sexual assault.

(4) The conduct of the appellant in in leading the investigation team and the panchas and pointing out where the apparel of the deceased was hidden would be admissible in light of S.8 of the Evidence Act.

The Court relied upon the observations in A.N. Venkatesh and another v. State of Karnataka:

"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400]"

(5) The blood group O on the clothes of the deceased matched with that of the accused. The Court also ruled out the argument of the accused that no DNA testing was done and cited the decision in Veerendra v. State of Madhya Pradesh, which held that not conducting a DNA test in a rape and murder case cannot flaw all other material evidence.

Considering the above chain of circumstances, the Court concluded the injuries on the genitals of the accused, the matching of the blood group and all other aspects established foundational facts for raising a presumption under Sections 29 and 30 of the POCSO.

S. 29 provides that when a person is facing prosecution for offences under S.3,5,7 and 9 of the POCSO, the burden to prove discharge is upon the accused, instead of the prosecution.

S.30 provides that during the prosecution of the accused for any of the offences under the POCSO, the special court shall presume that the accused had the mental state to commit the offence and it is upon the accused to disprove the same. However, S. 30(2) specifies: "For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability."

The Court observed that the presumption under S. 29 expressly covers instances where the offence of aggravated sexual assault is alleged to be committed.

"It will be seen that presumption under Section 29 is available where the foundational facts exist for the commission of an offence under Section 5 of the POCSO Act. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault."

The Court thus concluded that the manner of enticing the deceased and then committing aggravated penetrative sexual assault on him expressly made out the offence u/s 377 of IPC and Sections 4 and 6 of the POCSO Act. The conviction by the High Court was upheld.

On Sentence

The Court, while reconsidering the death sentence awarded to the accused by the lower court, called for a holistic assessment report by Ms. Komal of Project 39A. The 'Mitigation Investigation Report' highlighted that the accused suffered from moderate-intensity psychotic features and intellectual disability. He also suffered from Tuberculosis Meningitis in his early childhood.

In terms of his social connectivity, the accused maintains family ties with his 64-year-old mother who takes care of his 10-year-old daughter. The accused's wife has deserted him.

The Court also referred to the reports by the Superintendent of Vadodara Central Jail and Hospital for Mental Health to assess his behaviour and mental state during his time in prison so far.

"The report from the Superintendent of Vadoara Jail indicates, that the behaviour of the appellant in prison is completely normal and that his conduct in jail is good. The report from the Hospital for Mental Health indicates that the appellant has no psychiatric problem at present. The report does indicate a feeling of remorse in the appellant."

Thus the court reduced the death sentence of the accused to a sentence of imprisonment for 25 years as "the present is not a case where it can be said that the possibility of reformation is completely ruled out."

The bench referred to its recent decision in Nawas Alias Mulanavas Vs. State of Kerala where it was observed that there is no straitjacket formulae for deciding the period of a sentence. The Court, however, also noted that this discretion should be exercised on reasonable grounds.

It thus held that "a sentence of imprisonment for a period of 25 (twenty-five) years without remission would be 'a just dessert'."

Considering the socio-economic condition of the accused on the facts of the present case, the fine amounts imposed upon the accused were also set aside.

Case Details : SAMBHUBHAI RAISANGBHAI PADHIYAR v. STATE OF GUJARAT| Special Leave Petition (Crl.) Nos. 9015-9016 of 2019

Citation : 2024 LiveLaw (SC) 1004

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