Supreme Court Commutes Death Sentence Awarded To A Man Accused Of Rape And Murder Of A Three Year Old Girl Child

"It therefore cannot be said that there is no possibility of the appellant being reformed and rehabilitated foreclosing the alternative option of a lesser sentence and making imposition of death sentence imperative."

A bench comprising Justices L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna upheld the conviction of the appellant (Lochan Shrivas), but commuted the death penalty on the consideration of the 'criminal test', which the Court asserted was conducted neither by the Trial Court nor the High Court.

"The trial court as well as the High Court has only taken into consideration the crime but they have not taken into consideration the criminal, his state of mind, his socio­ economic background, etc."

The Prosecution's Case

In the morning of 24th February, 2016, when the complainant's 3-year old daughter (the deceased) went missing, she went to the Jutemill Police Station and lodged a missing report. In the wee hours of the next day, one Raju Khan informed the complainant that Lochan Shrivas (the appellant), a neighbour had offered to find her daughter by conducting a ritual. As promised Shrivas informed the complainant that her daughter was tied and kept in a sack near a pole, on the side of the road in Amlibhauna. On suspicion, Raju Khan informed the police about the same. Based on Shrivas's confession, the police recovered the blood soaked body of the deceased from inside the said sack. On the basis of the report of the complainant, FIR was lodged under Section 363 of IPC. The Trial Court convicted the appellant for offences punishable under Section 363, 366, 376(2)(i), 377, 201, 302 read with Section 376A of the IPC and Section 6 of the POCSO Act and by the same order, inter alia, sentenced him to death. The High Court dismissed the appeal preferred by Shrivas and confirmed the death penalty.

Contentions raised by the Appellant

Senior Advocate, Mr. Anand Grover appearing for Shrivas contended that though the prosecution's case was based on circumstantial evidence, it had failed to establish the chain of events pointing towards the guilt of the accused. He further submitted that recovery of the body of the deceased and her clothes were from an open place accessible to all. Moreover, the Forensic Science Laboratory (FSL) reports were also inconclusive. It was highlighted that the police had prior knowledge of the place from where the body was recovered. With respect to the circumstance of finding human blood on the nails of Shrivas, Mr. Anand submitted that they were cut by a barber and there was a delay in sending the sample to the Laboratory, which is enough reasons for the same to be of no use for establishing his guilt. Apart from these, Mr. Anand emphasised that Shrivas did not get effective representation. On top of that, the Trial Court had recorded its order of conviction and the award of sentence on the same day without providing him adequate opportunity of being heard. Furthermore, Mr. Anand pointed out that the Trial Court and the High Court had applied only the 'crime test', and not the 'criminal test' for the determination of death sentence.

Contentions raised by the State

Advocate, Mr. Nishanth Patil, appearing on behalf of the State, argued that the prosecution had established the case beyond reasonable doubt. He asserted that rape and murder committed by Shrivas were heinous offences, which warrants nothing short of death penalty.

Analysis of the Court

Circumstances should be conclusive in nature

Placing reliance on Hanumant, son of Govind Nargundkar v. State of Madhya Pradesh 1952 SCR 1091 and Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Court reiterated the settled principle that when a conviction rests on circumstantial evidence, then the circumstances from which the conclusion of guilt is drawn is to be fully established, without there being any probability of reaching a conclusion pointing towards the innocence of the accused.

"The circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis, but the one proposed to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probabilities, the act must have been done by the accused."

Circumstance relevant for considering the motive, preparation or subsequent conduct

The Court was convinced that the prosecution had proved its case beyond reasonable doubt. The prosecution witnesses provided consistent testimonies regarding the ritual that was conducted by Shrivas and the fact that he told them the whereabouts of the body of the deceased. Citing Prakash Chand v. State (Delhi Administration) (1979) 3 SCC 90, Himachal Pradesh Administration v. Shri Om Prakash (1972) 1 SCC 249 and A.N. Venkatesh and Another v. State of Karnataka (2005) 7 SCC 714, the Court also noted that this particular circumstance would be relevant for considering the conduct of Shrivas under Section 8 of the Evidence Act.

Evidence under Section 27 of the Evidence Act cannot be vitiated on the ground of accessibility, but on the ground of visibility

The Court observed that the coherent testimonies of the prosecution witnesses established that after the prediction was made by Shrivas about the body of the deceased, they grew suspicious and Raju Khan informed the police instantaneously. On a memorandum of Shrivas under Section 27 of the Evidence Act, the dead body was recovered. Taking note of the fact that this recovery was challenged by the defence on the ground that it was recovered from an open and accessible place, the Court referred to the judgment of State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370 and John Pandian v. State represented by Inspector of Police, Tamil Nadu (2010) 14 SCC 129. It stated that what is relevant is not the accessibility of the palace but its visibility.

"If the place at which the article hidden is such where only the person hiding it knows until he discloses that fact to any other person, then it will be immaterial whether the concealed place is accessible to others."

Moreover, the High Court had examined the video and opined that the recovery of the dead body was from a place which was not accessible to an ordinary person without prior knowledge. The Court further distinguished the cases relied on by Mr. Anand, wherein the convictions were solely based on recovery from commonly known, accessible places.

The contentions raised by the defence - held to be untenable

Relying on R. Shaji v. State of Kerala (2013) 14 SCC 266, the Court opined that it cannot discount the prosecution evidence on the ground that FSL Report does not connect Shrivas with the blood on the gamchha, which was recovered from his house. It further noted that even if the circumstance of finding blood stains in the nail clipping of the accused is excluded, there was sufficient material to establish the guilt of the accused. The Court was of the view, the contention raised by the defence, that Raju Khan, being the sole witness to all the panchnamas, makes them unreliable, had no merit.

No explanation in the 313 Statement by the accused furthers the case of the prosecution

As no cogent explanation was offered by Shrivas in his statement under Section 313 Cr.P.C, the Court thought it had furthered the case of the prosecution. As per the ratio in Sharad Birdhichand Sarda, the Court held -

"It is trite law that though the false explanation cannot be taken to complete a missing link in the chain of circumstances, it can surely be taken to fortify the conclusion of conviction recorded on the basis of the proven incriminating circumstances."

The contentions raised by the defence - acknowledged by Court

Addressing the issue of lack of representation as pointed out by the defence, the Court observed that sufficient time might not have been provided to the counsel for the accused after his appointment. The Court further opined that the death sentence should not have been awarded on the same day as the order of conviction.

Question of sentence

On the issue of sentence, placing reliance on Mohd. Mannan alias Abdul Mannan v. State of Bihar (2019) 16 SCC 584, Mofil Khan and Another v. The State of Jharkhand RP(Criminal) No. 641/2015 in Criminal Appeal No.1795/2009 dated 26.11.2021 and Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019) 12 SCC 460, the Court felt that it was their bounden duty to take into consideration the probability of the accused being reformed and rehabilitated.

"It is also our duty to take into consideration not only the crime but also the criminal, his state of mind and his socio­ economic conditions."

Considering that Shrivas was only 23 years old at the time of commission of offence; he came from a rural background; no evidence was on record to show that there was no possibility of reform; his father was a barber; he was studious and hardworking; he did well in school and made efforts to bring his family out of poverty; his conduct in prison was satisfactory; he had no criminal antecedent; he was not a hardened criminal, the Court observed that there was scope for reform and rehabilitation. Relying on the reasoning in Sunil v. State of Madhya Pradesh (2017) 4 SCC 393, wherein there were factual similarities, the Court commuted the death penalty awarded to Shrivas to life imprisonment.

[Case Title: Lochan Shrivas v. The State of Chhattisgarh, Criminal Appeal Nos. 499-500 of 2018]

Case name: Lochan Shrivas vs State of Chhattisgarh

Citation: LL 2021 SC 739

Case no. and Date: CrA 499­-500 OF 2018 | 14 December 2021

Coram: Justices L. Nageswara Rao, BR Gavai and BV Nagarathna