Supreme Court of India | Sunder@Sundararajan Vs. State by Inspector of Police

1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
ORIGINAL WRIT JURISDICTION
CRIMINAL APPEAL NOS.300-301 OF 2011
Sunder @ Sundararajan …. Apellant
Versus
State by Inspector of Police. …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. On 27.7.2007 Suresh aged 7 years, who lived with his mother
Maheshwari (PW1) at Karkudal village in Vridhachalam Taluk, left his
residence in the morning as usual, at about 8 a.m. to attend his
school at Vridhachalam. Suresh was a class II student at Sakthi
Matriculation School at Vridhachalam. Each morning, he along with
other students from the same village, would leave for school, in a
school van at about 8.00 a.m. The same school van would bring them
back in the afternoon at about 4.30 p.m. On 27.7.2009, Suresh did
not return home. Maheshwari (PW1) his mother got worried and made
inquiries. She inquired from Kamali (PW2), and from another student
from the same village, who used to travel to school in the same van
with Suresh. Kamali (PW2) told Maheshwari (PW1) that a man was
2
waiting alongside a motorcycle when the school van returned to
Karkudal village on 27.7.2009. The man informed Suresh that his
mother and grandmother were not well. According to Kamali (PW2),
the man told Suresh, that he had been asked by Maheshwari (PW1) to
bring Suresh to the hospital. Based on the aforesaid assertions,
Suresh had accompanied the man on his motorcycle. After having
inquired from Kamali (PW2), Maheshwari (PW1) sought information from
another student Malai, but could not gather any positive information
from her. Thereafter, she was informed by Kurinji Selvan (PW3)
belonging to the same village, that he had seen Suresh disembarking
from the Sakthi school van on 27.7.2009 at about 4.30 p.m. He also
told her, that a man standing alongside a motorcycle, had called out
to Suresh and had taken Suresh along with him on his motorcycle.
Kurinji Selvan (PW3) advised Maheshwari (PW1) to approach the
police. Maheshwari (PW1) accordingly proceeded to Police Station,
Kammapuram, to register a complaint. The said complaint was
registered at 7 p.m. on the date of occurrence, i.e., on 27.7.2009
itself. Based thereon, Crime no.106 of 2009 was registered under
Section 366 of the Indian Penal Code.
2. At about 9.30 p.m. on the same day, i.e., on 27.7.2009
Maheshwari (PW1) received a call on her mobile phone. The caller
identified himself as Shankar. The caller demanded a ransom of Rs.5
lakhs for the release of Suresh. Immediately after the receipt of
the aforesaid call, Maheshwari (PW1) again rushed to the Police
3
Station Kammapuram, and informed the Station House Officer about the
call received by her.
3. The investigating officer called Kasinathan (PW13), the then
Village Administrative Officer of village Karkudal, Taluka
Vridhachalam, to the Vridhachalam Police Station. Having taken
permission from the Tehsildar, Kasinathan (PW13) and his assistant
went to Vridhachalam. From there, they went to the house of the
accused, and in the presence of Kasinathan (PW13), the two accused
were apprehended. In the presence of Kasinathan (PW13), the accused
made confessional statements, leading to the recovery of three
mobile phone sets, two of which had sim cards. The accused also
acknowledged, having strangulated Suresh when ransom was not paid
for his release. The accused also confessed, that they had put the
dead body of Suresh in a gunny bag, and thereafter, had thrown it in
the Meerankulam tank. Based on the aforesaid confessional
statement, in the presence of Kasinathan (PW13), and on the pointing
out of the accused, the dead body of Suresh was retrieved by
personnel belonging to the fire service squad. The dead body of
Suresh was found in a gunny bag which had been fished out of the
above-mentioned tank. The accused also made statements to the
police, whereupon the school bag, books and slate belonging to the
deceased Suresh came to be recovered from the residence of the
accused, in the presence of Kasinathan (PW13).
4
4. During the course of the investigation emerging out of the
mobile phones recovered from the accused, the police identified
Saraswathi (PW8), who affirmed that she had received a phone call
from a person who called himself Shankar, on 27.7.2009 at about 9
p.m. She also disclosed, that the caller had enquired from her
about the phone number of Maheshwari (PW1). Saraswathi (PW8) had
required the caller, to ring her up after sometime. She had
received another call from Shankar and had furnished the mobile
phone number of Maheshwari (PW1) to him. Consequent upon the
gathering of the above information, the accused were charged under
Sections 364-A (for kidnapping for ransom), 302 (murder) and 201
(for having caused disappearance of evidence) of the Indian Penal
Code. The trial of the case was committed to the Court of Session,
whereupon, the prosecution examined 19 prosecution witnesses. The
prosecution also relied on 18 exhibits and 10 material objects.
After the statements of the prosecution witnesses had been recorded,
the statements of the accused were recorded under Section 313 of the
Code of Criminal Procedure. Despite having been afforded an
opportunity, the accused did not produce any witness in their own
defence.
5. On the culmination of the trial, the accused-appellant Sunder @
Sunderajan was found guilty and convicted of the offences under
Sections 364-A, 302 and 201 of the Indian Penal Code by the Sessions
Judge, Mahila Court, Cuddalore. For the first two offences, the
5
accused-appellant was awarded the death penalty along with fine of
Rs.1,000/- each. For the third offence, the accused-appellant was
awarded 7 years rigorous imprisonment along with a fine of
Rs.1,000/-. Vide RT no.2 of 2010, the matter was placed before the
High Court of Judicature at Madras (hereinafter referred to as, the
High Court), for confirmation of the death sentence imposed on the
accused-appellant. The accused-appellant independently of the
aforesaid, filed Criminal Appeal no.525 of 2010 before the High
Court, for assailing the order of his conviction. Vide its common
judgment dated 30.9.2010, the High Court confirmed the death
sentence imposed on the accused-appellant and simultaneously
dismissed the appeal preferred by Sunder @ Sundararajan. Thus
viewed, the judgment rendered by the Sessions Judge, Mahila Court at
Cuddalore dated 30.7.2010 was affirmed by the High Court vis-à-vis
the accused-appellant.
6. The Court of Session acquitted Balayee, accused no. 2. It is
not a matter of dispute before us, that the acquittal of Balayae,
was not contested by the prosecution by preferring any appeal. It
is therefore apparent, that for all intents and purposes accused
no.2 stands discharged from the matter on hand.
7. It is not necessary to deal with the statements of all the
witnesses, in so far as the instant controversy is concerned. Even
though the prosecution had rested its case, on circumstantial
evidence alone, it would be necessary to refer to the statements of
6
a few witnesses so as to deal with the submissions advanced on
behalf of the accused-appellant. The deposition of the relevant
witnesses is accordingly being summarized hereinafter.
8. Maheshwari (PW1) was the mother of the deceased Suresh. It was
Maheshwari (PW1) who had lodged the First Information Report at
Police Station, Kammapuram, on 27.7.2009. In her statement before
the trial court, she asserted that she had four children, three
daughters and one son. Suresh was her only son. She deposed, that
she was running all domestic affairs of her household at Village
Karkudal in Taluk Vridhachalam by herself, as her husband had gone
abroad to earn for the family. She affirmed, that she was also
engaged in agriculture. She also asserted, that her son Suresh was
studying in Class II at the Sakthi Matriculation School,
Vridhachalam. He used to go to school, by the school van, and used
to return along with other children from school, at about 4.30 p.m.
As usual, on 27.7.2009, he had gone to school in the school van at
about 8.00 a.m. but since he had not returned at 4.30 p.m., she had
gone out to search for him. She had enquired from other students
who used to travel in the same school van along with her son.
Kamali (PW2) informed her that her son Suresh had got down from the
school van on 27.7.2009, in her company. Kamali (PW2) also informed
her, that as soon as Suresh got down from the school van on
27.7.2009, the accused-appellant who was standing near the neem tree
along side his motorcycle, called Suresh by his name, and told him
7
that his mother and grandmother were ill, and had required him to
bring Suresh to them, on his motorcycle. At the man’s asking,
according to Kamali (PW2), Suresh sat on the man’s motorcycle, and
was taken away. Maheshwari (PW1) then enquired from Malai, another
student who used to travel by the same school van. Malai, however,
did not remember about the presence of Suresh. Finally, Maheshwari
(PW1) was told by Kurinji Selvan (PW3), a co-villager living in
Karkudal village, that he had seen Suresh getting down from the
school van and being taken away by a man on his motorcycle. Kurinji
Selvan (PW3) advised Maheshwari (PW1), to report the matter to the
police. Based on the aforesaid inputs, Maheshwari (PW1) deposed,
that she had immediately gone to Police Station, Kammapuram, and had
lodged a report at 7.00 p.m. Having returned to her village,
Maheshwari (PW1) claims to have received a call on her mobile phone
at about 9.30 p.m. According to her, the caller was the accusedappellant.
The accused-appellant demanded a sum of Rs.5,00,000/-
for the safe release of her son Suresh. Consequent upon the receipt
of the aforesaid phone call, Maheshwari (PW1) deposed, that she had
returned to the Police Station, Kammapuram, to apprise the police of
the aforesaid development. According to Maheshwari (PW1), the
police informed her on 30.7.2009, that the body of her son had been
recovered from a lake and had been brought to Vridhachalam Hospital.
In her statement, she affirmed having identified the clothes, shoes
and socks as also neck tie of her son Suresh. She also identified
8
his school bag which had the inscription ‘JAYOTH’. She also
identified his books as also the black colour slate having a green
colour beeding around it, as that of her son Suresh. She also
identified the body of her son when she set her eyes on him at
Vridhachalam Hospital. During her cross-examination, she deposed
that she had not approached Kurinji Selvan (PW3). It was Kurindi
Selvan (PW3), who had approached her on seeing her crying. When she
disclosed to Kurinji Selvan (PW3) about her missing son, he had
informed her that he had seen her son Suresh disembarking from the
school van whereafter, Suresh had gone away with a man on a
motorcycle.
9. Kamali entered appearance before the trial court as PW2. She
asserted that she was (at the time of her deposition) studying in
the 6th standard at Sakthi Matriculation School, Vridhachalam. She
affirmed that Suresh, the deceased, was known to her. She deposed
that on 27.7.2009, she had gone to her school in the school van,
wherein there were other children from the village including Suresh.
She also deposed that she along with Suresh returned to Karkudal
Village on 27.7.2009, at about 3.00 p.m. in the school van. Suresh
had got down from the school van, along with the other children.
When the van had arrived at the village, she had seen a man standing
along side a motorcycle. After Suresh got down from the school van,
the man beckoned at Suresh. He informed Suresh, that his mother and
grandmother were ill, and that Suresh’s mother had asked him, to
9
bring Suresh to the hospital. She deposed that when she reached her
house, Maheshwari (PW1) had inquired about the whereabouts of her
son, from her. She had informed Maheshwari (PW1) the factual
position as narrated above. She also asserted, that she was
questioned by the police during the course whereof she had informed
the police, that she could identify the accused. She acknowledged
that an identification parade was conducted by the Judicial
Magistrate at Cuddalore Central Prison, where she had identified the
accused-appellant, namely, the man who had taken Suresh on the
motorcycle on 27.7.2009, when they had returned from school.
10. Kurinji Selvan deposed before the trial court as PW3. He
stated that Maheshwari (PW1), Kamali (PW2), as also the deceased
Suresh, were known to him. He stated that on 27.7.2009 at about
4.30 p.m. when he was going towards his paddy field on his
motorcycle, the Sakthi School van had dropped the school children of
his village, at the corner of the river path. He had also stopped
his motorcycle, there. He had seen the accused-appellant standing
near the neem tree along side a motorcycle. He identified the
nature, as also, the colour of the clothes worn by the accusedappellant.
He confirmed, that the accused–appellant had called out
to Suresh by his name, whereupon, Suresh had gone up to him. He
deposed, that he had seen Suresh being taken away by the man, on his
motorcycle. He further deposed, that when he was returning from his
paddy field at about 5.30 p.m., he had seen Maheshwari (PW1)
10
weeping. When he enquired from her, she told him, that her son was
missing. Kurinji Selvan (PW3) affirmed that he had informed her,
that a man had taken her son away on a motorcycle. He also advised
Maheshwari (PW1) to lodge a report with the police. He further
deposed, that the body of a child was recovered on 30.7.2009 and he
was informed about the same at about 8.00 a.m. The body had been
recovered from Meerankulam tank in Vuchipullaiyar Vayalapadi
village. Having received the aforesaid information, he had
proceeded to the Meerankulam tank where he identified Suresh, to the
Inspector. He further deposed, that an identification parade was
conducted at the Cuddalore Central Prison, in presence of the
Judicial Magistrate. He affirmed, that he had identified the
accused-appellant as the person who had taken Suresh, when Suresh
had disembarked from the school van on 27.7.2009. He also asserted,
that he had identified the motorcycle, when he was shown two
motorcycles, as the one on which the accused-appellant had taken
Suresh away on 27.7.2009.
11. The statement of M. Santhanam was recorded as PW6. He affirmed
that he was the Correspondent and Principal of Sakthi Matriculation
School. He also affirmed that Suresh was studying in his school in
the 2nd standard. He confirmed that Suresh had attended the school
on 27.7.2009. He produced the attendance register, wherein the
presence of Suresh was duly recorded.
11
12. Saraswathi (PW8) appeared before the trial court and deposed,
that on 27.7.2009, she had received a call on her mobile phone
bearing No.9943020435 at about 9.00 p.m. The caller identified
himself as Sankar and asked for the phone number of Maheshwari
(PW1). She stated that she had informed the caller, to ring her
after a little while, by which time she would retrieve the phone
number of Maheshwari (PW1). Accordingly, the caller again spoke to
her on her mobile phone, whereupon, she had conveyed the phone
number of Maheshwari (PW1), to him.
13. A. Bashir, Judicial Magistrate No.1 appeared before the trial
court as PW10. He deposed that he had gone to the Cuddalore Central
Prison on 25.8.2009 to conduct the identification parade. He had
taken his office assistant along with him. He had selected coprisoners
similar to the accused-appellant to participate in the
identification parade. Persons selected by him were of the same
height, weight, colour and beared. Out of these eight persons
selected by him, both Kamali (PW2) and Kurinji Selvan (PW3) had
identified the accused-appellant, in three different combinations.
14. Sunil (PW11), working as legal officer of the Vodafone Company,
during the course of his deposition before the trial court affirmed,
that he was required by the Inspector of Police, Vridhachalam, to
provide him with the details of Vodafone cell phone numbers
9946205961 and 9943020435 for the period from 25.7.2009 to
28.7.2009. He affirmed that he had taken the aforesaid details from
12
the computer and given them to the Inspector of Police. He
confirmed that three calls had been made from sim number 9946205961,
upto 9.39 p.m. on 27.7.2009. He also affirmed, that phone number
9943020435 was in the name of Saraswathi (PW3).
15. Dr. Kathirvel appeared before the trial court as PW12. He had
conducted the post mortem on the dead body of Suresh on 30.7.2009.
The dead body was identified by the police Constable, in the
mortuary. He asserted that the body was in a decomposed state.
According to his analysis, the child had died within 36 to 48 hours
prior to the post mortem examination. According to the opinion
tendered by him, suffocation was the cause of the death of the
child. And that, the child, in his opinion, had died prior to his
being drowned in the water.
16. Kasinathan (PW13), the Village Administrative officer,
Karkudal, while appearing before the trial court confirmed, that he
was known to the accused-appellant. He deposed that on 30.7.2009,
he was summoned from his residence by the Inspector of Police,
Vridhachalam at about 4.30 p.m. Thereupon, he had gone to the
Vridhachalam Police Station. The Inspector of Police had required
Kasinathan (PW13) to be a police witness, whereupon, he had obtained
permission from the Tahsildar, for being a police witness. He was
taken to the house of the accused-appellant in a police jeep. They
reached his house at 7.00 a.m. on 30.7.3009. As soon as the accused
saw the police jeep, both of them fled from the spot. Whilst
13
running away, the accused-appellant had fallen down, and thereupon,
the police personnel had apprehended him. Women constables had
apprehended Balayee (A-2). The accused-appellant had made a
confessional statement to the police in the presence of Kasinathan
(PW13). The accused-appellant had handed over three mobile phones
to the Police Inspector in his presence. Only two of the said
phones had sim cards. The accused-appellant had also produced the
motorcycle, on which he had taken away Suresh, when he had got down
from the school van at village Karkudal on 27.7.2009. The accusedappellant
also produced a school bag containing a slate and two
books from his residence in his presence. Kasinathan (PW13)
admitted having signed the “mahazar” when recoveries of the
aforesaid articles were made from the accused-appellant on
30.7.2009. Based on the information furnished by the accusedappellant,
Kasinathan (PW13) acknowledged, that he had gone to the
Meerankulam tank in Vayalapadi village, in the police jeep, along
with the other police personnel. When the gunny bag containing the
dead body of the child was retrieved from the tank, the accusedappellant
had identified the same as Suresh. He had also signed on
the “mahazar” prepared on the recovery of the gunny bag, containing
the dead body of Suresh.
17. It is not necessary to refer to the statement of other
witnesses except the fact that the call details produced by Sunil
(PW11) indicate that two calls were made from the Mobile Phone
14
recovered from the accused-appellant to Saraswathi (PW8). The said
calls were made at 9.22 p.m. and 9.25 p.m. respectively. The call
details further indicate that from the same number, a call was made
to Maheshwari (PW1) at 9.39 p.m.
18. It is on the basis of the aforesaid oral and documentary
evidence that we shall endeavour to determine the issues canvassed
at the hands of the learned counsel for the appellant.
19. The solitary contention advanced by the learned counsel for the
appellant on the merits of the case was, that the prosecution had
ventured to substantiate the allegations levelled against the
appellant only on the basis of circumstantial evidence. It was
sought to be pointed out, that in the absence of direct evidence,
the slightest of a discrepancy, depicting the possibility of two
views would exculpate the accused of guilt, on the basis of benefit
of doubt. Before dealing with the circumstantial evidence relied
upon against the appellant, learned counsel invited our attention to
the legal position declared by this Court, on the standard of proof
required for recording a conviction, on the basis of circumstantial
evidence. In this behalf, learned counsel for the appellant first
of all placed reliance on Sharad Birdhichand Sarda Vs. State of
Maharashtra, (1984) 4 SCC 116. It was pointed out, that in the
instant judgment this Court laid down the golden principles of
standard of proof, required in a case sought to be established on
15
the basis of circumstantial evidence. In this behalf reliance was
placed on the following observations:-
“152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned 'must or should' and not
'may be' established. There is not only a grammatical
but a legal distinction between 'may be proved' and
'must be or should be proved as was held by this
Court in Shivaji Sahebrao Bobade v. State of
Maharashtra : 1973CriLJ1783 where the following
observations were made:
Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a Court
can convict, and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions.
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
153. These five golden principles, if we may say so, constitute
the panchsheel of the proof of a case based on
circumstantial evidence.”
16
Learned counsel for the appellant thereafter placed reliance on the
decision rendered in Tanviben Pankajkumar Divetia Vs. State of
Gujarat, (1997) 7 SCC 156. He placed reliance on the following
observations recorded therein:-
“45. The principle for basing a conviction on the basis of
circumstantial evidences has been indicated in a number of
decisions of this Court and the law is well settled that
each and every incriminating circumstance must be clearly
established by reliable and clinching evidence and the
circumstances so proved must form a chain of events from
which the only irresistible conclusion about the guilt of
the accused can be safely drawn and no other hypothesis
against the guilt is possible. This Court has clearly
sounded a note of caution that in a case depending largely
upon circumstantial evidence, there is always a danger
that conjecture or suspicion may take the place of legal
proof. The Court must satisfy itself that various
circumstances in the chain of events have been established
clearly and such completed chain of events must be such as
to rule out a reasonable likelihood of the innocence of
the accused. It has also been indicated that when the
important link goes, the chain of circumstances gets
snapped and the other circumstances cannot in any manner,
establish the guilt of the accused beyond all reasonable
doubts. It has been held that the Court has to be watchful
and avoid the danger of allowing the suspicion to make the
place of legal proof for some times, unconsciously it may
happen to be a short step between moral certainty and
legal proof. It has been indicated by this Court that
there is a long mental distance between 'may be true' and
'must be true' and the same divides conjectures from sure
conclusions. (Jaharlal Das v. State of Orissa : 1991 3 SCC
27)
46. We may indicate here that more the suspicious
circumstances, more care and caution are required to be
taken otherwise the suspicious circumstances may
unwittingly enter the adjudicating thought process of the
Court even though the suspicious circumstances had not
been clearly established by clinching and reliable
evidences. It appears to us that in this case, the
decision of the Court in convicting the appellant has been
17
the result of the suspicious circumstances entering the
adjudicating thought process of the Court.”
Learned counsel also placed reliance on Sucha Singh Vs. State of
Punjab, (2001) 4 SCC 375. The instant judgment was relied upon in
order to support the contention, that circumstantial evidence could
not be relied upon, where there was any vacuum in evidence. It was
pointed out therefrom, that this Court has held, that each aspect of
the criminal act alleged against the accused, had to be established
on the basis of material of a nature, which would be sufficient to
lead to the inference that there could be no other view possible,
than the one arrived at on the basis of the said circumstantial
evidence. In this behalf, learned counsel for the appellant placed
reliance on the following observations recorded in the afore-cited
judgment.
“19. Learned senior counsel contended that Section 106 of
the Evidence Act is not intended for the purpose of
filling up the vacuum in prosecution evidence. He invited
our attention to the observations made by the Privy
Council in Attygalle Vs. R AIR 1936 PC 169, and also in
Stephen Seneviratne vs. The King : AIR 1936 PC 289. In
fact the observations contained therein were considered by
this Court in an early decision authored by Vivian Bose,
J, in Shambhu Nath Mehra vs State of Ajmer, AIR 1956 SC
404. The statement of law made by the learned Judge in the
aforesaid decision has been extracted by us in State of
West Bengal vs. Mir Mohammad Omar, 2000 (8) SCC 382. It is
useful to extract a further portion of the observation
made by us in the aforesaid decision:
"33. Presumption of fact is an inference as to the
existence of one fact from the existence of some other
facts, unless the truth of such inference is disproved.
Presumption of fact is a rule in law of evidence that a
fact otherwise doubtful may be inferred from certain
18
other proved facts. When inferring the existence of a
fact from other set of proved facts, the court
exercises a process of reasoning and reaches a logical
conclusion as the most probable position. The above
principle has gained legislative recognition in India
when Section 114 is incorporated in the Evidence Act.
It empowers the court to presume the existence of any
fact which it thinks likely to have happened. In that
process the court shall have regard to the common
course of natural events, human conduct etc. in
relation to the facts of the case."
20. We pointed out that Section 106 of the Evidence Act is not
intended to relieve the prosecution of its burden to prove
the guilt of the accused beyond reasonable doubt, but the
section would apply to cases where prosecution has
succeeded in proving facts for which a reasonable
inference can be drawn regarding the existence of certain
other facts, unless the accused by virtue of special
knowledge regarding such facts failed to offer any
explanation which might drive the court to draw a
different inference.”
20. Based on the aforesaid judgments, the first contention advanced
on behalf of the accused-appellant was, that there was no material
produced by the prosecution to establish the factum of the
commission of the murder of the deceased Suresh (at the hands of the
accused-appellant). According to the learned counsel, the aforesaid
vacuum could not be filled up on the basis of any presumption.
21. We have considered the first contention advanced by the learned
counsel for the appellant, on the basis of the contention noticed in
the foregoing paragraph. In the veiled submission advanced in the
hands of the learned counsel for the appellant, we find an implied
acknowledgement, namely, that learned counsel acknowledges, that the
prosecution had placed sufficient material on the record of the case
to substantiate the factum of kidnapping of the deceased Suresh, at
19
the hands of the accused-appellant. Be there as it may, without
drawing any such inference, we would still endeavour to determine,
whether the prosecution had been successful in establishing the
factum of kidnapping of the deceased Suresh, at the hands of the
accused-appellant. In so far as the instant aspect of the matter is
concerned, reference may first be made to the statement of
Saraswathi, PW-8 wherein she affirmed that on 27.7.2009, at about 9
p.m., when she was at her residence, she had received a call on her
mobile phone bearing number 9943020435. The caller identified
himself as Shankar. She deposed, that the caller had inquired from
her about the phone number of Maheshwari (PW1). She stated, that
she had responded to the said Shankar by asking him to call her
after sometime, and in the meanwhile, she (Saraswathi) would gather
the phone number of Maheshwari (PW1). Soon after the first call,
Saraswathi (PW8) testified, that she received a second call from the
same person. On this occasion, Saraswathi (PW-8) acknowledged
having provided the caller with the mobile phone number of
Maheshwari (PW1). Through independent evidence the prosecution was
in a position to establish that the first of the aforesaid two
calls, were received by Saraswathi (PW8) at 9.22 p.m., and the
second one at 9.25 p.m. The caller, on having obtained the mobile
phone number of Maheshwari (PW1) then called her (Maheshwari – PW1)
on the mobile phone number supplied by Saraswathi (PW8). On the
basis of independent evidence the prosecution has also been able to
20
establish, that Maheshwari, (PW1) received the instant phone call at
9.39 p.m., from the same phone number from which Saraswathi, PW-8
had received two calls. In her statement, Maheshwari (PW1)
asserted, that the caller demanded a ransom of Rs.5,00,000/- for the
safe return of her son, Suresh. At this juncture, as per her
statement, Maheshwari (PW1) again visited the police station to
apprise the police of the said development. The aforesaid material,
was one of the leads, which the police had adopted in identifying
the accused-appellant.
22. Beside the aforesaid, the prosecution placed reliance on the
deposition of Kamali (PW2), for identifying the appellant as the
kidnapper of the deceased, Suresh. In her statement Kamali (PW-2)
affirmed, that she along with the deceased Suresh had returned to
their village Karkudal on 27.7.2009 at about 4.30 p.m. in the school
van. When they alighted from the school van, as per the deposition
of Kamali (PW2), the accused-appellant was seen by her, standing
besides his motor-cycle. The accused-appellant, as per the
testimony of Kamali (PW2), had gestured towards Suresh with his
hand. The deceased Suresh and Kamali (PW2) had accordingly gone to
the accused-appellant. The accused-appellant had told Suresh, that
his mother and grandmother were unwell, and he had been asked by his
mother to bring him (Suresh) to the hospital. Thereafter, according
to Kamali (PW2), the accused-appellant had taken away the deceased
Suresh, on his motor-cycle. It would be relevant to indicate that
21
Kamali (PW2) duly identified the accused-appellant in an
identification parade, conducted under the supervision of A. Bashir,
Judicial Magistrate (PW10), on 25.8.2009 at Cuddalore Central
Prison. According to the testimony of A. Bashir, Judicial
Magistrate, Kamali PW-2 correctly identified the accused-appellant.
The aforesaid evidence was the second basis of identifying the
accused-appellant as the person, who had kidnapped the deceased
Suresh.
23. The deposition of Kurinji Selvan (PW3) has already been
narrated hereinabove. Kurinji Selvan (PW3) had seen Suresh
disembarking from the school van on 27.7.2009 at about 4.30 p.m.,
when the said van had returned to village Karkudal. Kurinji Selvan
(PW3) affirmed, that he had also seen the accused-appellant waiting
for the arrival of the school van under a neem tree alongside his
motorcycle. Kurinji Selvan (PW3) also deposed, that he had seen the
accused-appellant taking away Suresh, on his motorcycle. On the
date of the incident itself, he had informed Maheshwari (PW1), that
Suresh had been taken away by a man on his motorcycle. In the same
manner as Kamali (PW2) had identified the accused-appellant in an
identification parade, Kurinji Selvan (PW3) had also participated in
the identification parade conducted at Cuddalore Central Prison on
25.8.2009. He had also identified the accused-appellant in the
presence of the Judicial Magistrate. The statement of Kurinji
Selvan (PW3) constitutes the third basis of identifying the accused22
appellant as the man who had taken away Suresh on his motorcycle on
27.7.2009.
24. Based on the evidence noticed in the three preceding
paragraphs, there can be no doubt whatsoever, that the accusedappellant
had been identified through cogent evidence as the person
who had taken away Suresh when he disembarked from school van on
27.7.2009. The factum of kidnapping of Suresh by the accusedappellant,
therefore, stands duly established.
25. The material question to be determined is, whether the
aforesaid circumstantial evidence is sufficient to further infer,
that the accused-appellant had committed the murder of Suresh.
According to the learned counsel for the appellant, there is no
evidence whatsoever, on the record of the case, showing the
participation of the accused-appellant in any of the acts which led
to the death of Suresh. It was, therefore, the submission of the
learned counsel for the appellant, that even though the accusedappellant
may be held guilty of having kidnapped Suresh, since it
had not been established that he had committed the murder of Suresh,
he cannot be held guilty of murder in the facts of this case.
26. Having given our thoughtful consideration to the submission
advanced at the hands of the learned counsel for the appellant, we
are of the view, that the instant submission is wholly misplaced and
fallacious. Insofar as the instant aspect of the matter is
23
concerned, reference may be made to the judgment rendered by this
Court in Sucha Singh’s case (supra), wherein it was held as under:-
“21. We are mindful of what is frequently happening during
these days. Persons are kidnapped in the sight of others
and are forcibly taken out of the sight of all others and
later the kidnapped are killed. If a legal principle is
to be laid down that for the murder of such kidnapped
there should necessarily be independent evidence apart
from the circumstances enumerated above, we would be
providing a safe jurisprudence for protecting such
criminal activities. India cannot now afford to lay down
any such legal principle insulating the marauders of their
activities of killing kidnapped innocents outside the ken
of others.”
A perusal of the aforesaid determination would reveal, that having
proved the factum of kidnapping, the inference of the consequential
murder of the kidnapped person, is liable to be presumed. We are
one with the aforesaid conclusion. The logic for the aforesaid
inference is simple. Once the person concerned has been shown as
having been kidnapped, the onus would shift on the kidnapper to
establish how and when the kidnapped individual came to be released
from his custody. In the absence of any such proof produced by the
kidnapper, it would be natural to infer/presume, that the kidnapped
person continued in the kidnapper’s custody, till he was eliminated.
The instant conclusion would also emerge from Section 106 of the
Indian Evidence Act, 1872 which is being extracted hereunder :
“106 - Burden of proving fact especially within knowledge—.When
any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.
Illustrations
24
(a) When a person does an act with some intention other than
that which the character and circumstances of the act suggest,
the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket.
The burden of proving that he had a ticket is on him.”
27. Since in the facts and circumstances of this case, it has been
duly established, that Suresh had been kidnapped by the accusedappellant;
the accused-appellant has not been able to produce any
material on the record of this case to show the release of Suresh
from his custody. Section 106 of the Indian Evidence Act, 1872
places the onus on him. In the absence of any such material
produced by the accused-appellant, it has to be accepted, that the
custody of Suresh had remained with the accused-appellant, till he
was murdered. The motive/reason for the accused-appellant, for
taking the extreme step was, that ransom as demanded by him, had not
been paid. We are therefore, satisfied, that in the facts and
circumstances of the present case, there is sufficient evidence on
the record of this case, on the basis whereof even the factum of
murder of Suresh at the hands of the accused-appellant stands
established.
28. We may now refer to some further material on the record of the
case, to substantiate our aforesaid conclusion. In this behalf, it
would be relevant to mention, that when the accused-appellant was
detained on 30.7.2009, he had made a confessional statement in the
presence of Kasinathan (PW13) stating, that he had strangulated
Suresh to death, whereupon his body was put into a gunny bag and
25
thrown into the Meerankulam tank. It was thereafter, on the
pointing out of the accused-appellant, that the body of Suresh was
recovered from the Meerankulam tank. It was found in a gunny bag,
as stated by the accused-appellant. Dr. Kathirvel (PW12) concluded
after holding the post mortem examination of the dead body of
Suresh, that Suresh had died on account of suffocation, prior to his
having been drowned. The instant evidence clearly nails the
accused-appellant as the perpetrator of the murder of Suresh.
Moreover, the statement of Kasinathan (PW13) further reveals that
the school bag, books and slate of Suresh were recovered from the
residence of the accused-appellant. These articles were confirmed
by Maheshwari (PW1) as belonging to Suresh. In view of the factual
and legal position dealt with hereinabove, we have no doubt in our
mind, that the prosecution had produced sufficient material to
establish not only the kidnapping of Suresh, but also his murder at
the hands of the accused-appellant.
29. Besides the submission advanced on the merits of the
controversy, learned counsel for the accused-appellant also assailed
the confirmation by the High Court of the death sentence imposed by
the trial court. During the course of hearing, it was the vehement
contention of the learned counsel for the accused-appellant, that
infliction of life imprisonment, in the facts and circumstances of
this case, would have satisfied the ends of justice. It was also
the contention of the learned counsel for the accused-appellant,
26
that the facts and circumstances of this case are not sufficient to
categorize the present case as a ‘rarest of a rare case’, wherein
only the death penalty would meet the ends of justice. In order to
support the aforesaid contention, learned counsel for the accusedappellant,
in the first instance, placed reliance on a recent
judgment rendered by this Court in Haresh Mohandas Rajput Vs. State
of Maharashtra, (2011) 12 SCC 56, wherein, having taken into
consideration earlier judgments, this Court delineated the
circumstances in which the death penalty could be imposed. Reliance
was placed on the following observations recorded therein:-
“Death Sentence – When Warranted:
“18. The guidelines laid down in Bachan Singh v. State of
Punjab, (1980) 2 SCC 684, may be culled out as under:
(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty, the
circumstances of the ‘offender’ also require to be
taken into consideration alongwith the circumstances
of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence
is an exception. In other words, 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.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so, the
mitigating circumstances have to be accorded full
27
weightage and just balance has to be struck between
the aggravating and the mitigating circumstances
before the option is exercised.
19. In Machhi Singh and Ors. v. State of Punjab, (1983) 2 SCC
684, this Court expanded the "rarest of rare" formulation
beyond the aggravating factors listed in Bachan Singh to
cases where the "collective conscience" of a community is
so shocked that it will expect the holders of the judicial
powers centre to inflict death penalty irrespective of
their personal opinion as regards desirability or
otherwise of retaining death penalty, such a penalty can
be inflicted. But the Bench in this case underlined that
full weightage must be accorded to the mitigating
circumstances in a case and a just balance had to be
struck between aggravating and mitigating circumstances.
20. "The rarest of the rare case" comes when a convict would
be a menace and threat to the harmonious and peaceful coexistence
of the society. The crime may be heinous or
brutal but may not be in the category of "the rarest of
the rare case". There must be no reason to believe that
the accused cannot be reformed or rehabilitated and that
he is likely to continue criminal acts of violence as
would constitute a continuing threat to the society. The
accused may be a menace to the society and would continue
to be so, threatening its peaceful and harmonious coexistence.
The manner in which the crime is committed must
be such that it may result in intense and extreme
indignation of the community and shock the collective
conscience of the society. Where an accused does not act
on any spur-of-the-moment provocation and indulges himself
in a deliberately planned crime and meticulously executes
it, the death sentence may be the most appropriate
punishment for such a ghastly crime. The death sentence
may be warranted where the victims are innocent children
and helpless women. Thus, in case the crime is committed
in a most cruel and inhuman manner which is an extremely
brutal, grotesque, diabolical, revolting and dastardly
manner, where his act affects the entire moral fiber of
the society, e.g. crime committed for power or political
ambition or indulging in organized criminal activities,
death sentence should be awarded. (See: C. Muniappan and
Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; Rabindra
Kumar Pal alias Dara Singh v. Republic of India, (2011) 2
SCC 490; Surendra Koli v. State of U.P. and Ors., (2011) 4
SCC 80; Mohd. Mannan (supra); and Sudam v. State of
Maharashtra, (2011) 7 SCC 125).
28
21. Thus, it is evident that for awarding the death sentence,
there must be existence of aggravating circumstances and
the consequential absence of mitigating circumstances. As
to whether death sentence should be awarded, would depend
upon the factual scenario of the case in hand.”
Reliance was also placed, on the decision of this Court in Ramnaresh
& Ors. Vs. State of Chhattisgarh, (2012) 4 SCC 257. Insofar as the
instant judgment is concerned, learned counsel relied on the
following observations:-
“The death sentence and principles governing its conversion to
life imprisonment
56. Despite the transformation of approach and radical changes
in principles of sentencing across the world, it has not
been possible to put to rest the conflicting views on
sentencing policy. The sentencing policy being a
significant and inseparable facet of criminal
jurisprudence, has been inviting the attention of the
Courts for providing certainty and greater clarity to it.
57. Capital punishment has been a subject matter of great
social and judicial discussion and catechism. From
whatever point of view it is examined, one undisputable
statement of law follows that it is neither possible nor
prudent to state any universal formula which would be
applicable to all the cases of criminology where capital
punishment has been prescribed. It shall always depend
upon the facts and circumstances of a given case. This
Court has stated various legal principles which would be
precepts on exercise of judicial discretion in cases where
the issue is whether the capital punishment should or
should not be awarded.
58. The law requires the Court to record special reasons for
awarding such sentence. The Court, therefore, has to
consider matters like nature of the offence, how and under
what circumstances it was committed, the extent of
brutality with which the offence was committed, the motive
for the offence, any provocative or aggravating
circumstances at the time of commission of the crime, the
possibility of the convict being reformed or
rehabilitated, adequacy of the sentence of life
29
imprisonment and other attendant circumstances. These
factors cannot be similar or identical in any two given
cases.
59. Thus, it is imperative for the Court to examine each case
on its own facts, in light of the enunciated principles.
It is only upon application of these principles to the
facts of a given case that the Court can arrive at a final
conclusion whether the case in hand is one of the 'rarest
of rare' cases and imposition of death penalty alone shall
serve the ends of justice. Further, the Court would also
keep in mind that if such a punishment alone would serve
the purpose of the judgment, in its being sufficiently
punitive and purposefully preventive.
xxx xxx xxx xxx
72. The above judgments provide us with the dicta of the Court
relating to imposition of death penalty. Merely because a
crime is heinous per se may not be a sufficient reason for
the imposition of death penalty without reference to the
other factors and attendant circumstances.
73. Most of the heinous crimes under the IPC are punishable by
death penalty or life imprisonment. That by itself does
not suggest that in all such offences, penalty of death
alone should be awarded. We must notice, even at the cost
of repetition, that in such cases awarding of life
imprisonment would be a rule, while 'death' would be the
exception. The term 'rarest of rare' case which is the
consistent determinative rule declared by this Court,
itself suggests that it has to be an exceptional case.
74. The life of a particular individual cannot be taken away
except according to the procedure established by law and
that is the constitutional mandate. The law contemplates
recording of special reasons and, therefore, the
expression 'special' has to be given a definite meaning
and connotation. 'Special reasons' in contra-distinction
to 'reasons' simpliciter conveys the legislative mandate
of putting a restriction on exercise of judicial
discretion by placing the requirement of special reasons.
75. Since, the later judgments of this Court have added to the
principles stated by this Court in the case of Bachan
Singh (supra) and Machhi Singh (supra), it will be useful
to restate the stated principles while also bringing them
in consonance, with the recent judgments.
30
76. The law enunciated by this Court in its recent judgments,
as already noticed, adds and elaborates the principles
that were stated in the case of Bachan Singh (supra) and
thereafter, in the case of Machhi Singh (supra). The
aforesaid judgments, primarily dissect these principles
into two different compartments - one being the
'aggravating circumstances' while the other being the
'mitigating circumstances'. The Court would consider the
cumulative effect of both these aspects and normally, it
may not be very appropriate for the Court to decide the
most significant aspect of sentencing policy with
reference to one of the classes under any of the following
heads while completely ignoring other classes under other
heads. To balance the two is the primary duty of the
Court. It will be appropriate for the Court to come to a
final conclusion upon balancing the exercise that would
help to administer the criminal justice system better and
provide an effective and meaningful reasoning by the Court
as contemplated under Section 354(3) Cr.P.C.
Aggravating Circumstances:
(1) The offences relating to the commission of heinous
crimes like murder, rape, armed dacoity, kidnapping
etc. by the accused with a prior record of conviction
for capital felony or offences committed by the
person having a substantial history of serious
assaults and criminal convictions.
(2) The offence was committed while the offender was
engaged in the commission of another serious offence.
(3) The offence was committed with the intention to
create a fear psychosis in the public at large and
was committed in a public place by a weapon or device
which clearly could be hazardous to the life of more
than one person.
(4) The offence of murder was committed for ransom or
like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the
victim.
31
(7) The offence was committed by a person while in lawful
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or
custody in a place of lawful confinement of himself
or another. For instance, murder is of a person who
had acted in lawful discharge of his duty under
Section 43 Cr.P.C.
(9) When the crime is enormous in proportion like making
an attempt of murder of the entire family or members
of a particular community.
(10) When the victim is innocent, helpless or a
person relies upon the trust of relationship and
social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and
is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which
evidences total depravity and meanness.
(12) When there is a cold blooded murder without
provocation.
(13) The crime is committed so brutally that it
pricks or shocks not only the judicial conscience but
even the conscience of the society.
Mitigating Circumstances:
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
contradistinction to all these situations in normal
course.
(2) The age of the accused is a relevant consideration
but not a determinative factor by itself.
(3) The chances of the accused of not indulging in
commission of the crime again and the probability of
the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was
mentally defective and the defect impaired his
32
capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of life,
would render such a behaviour possible and could have
the effect of giving rise to mental imbalance in that
given situation like persistent harassment or, in
fact, leading to such a peak of human behaviour that,
in the facts and circumstances of the case, the
accused believed that he was morally justified in
committing the offence.
(6) Where the Court upon proper appreciation of evidence
is of the view that the crime was not committed in a
preordained manner and that the death resulted in the
course of commission of another crime and that there
was a possibility of it being construed as
consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the
testimony of a sole eye-witness though prosecution
has brought home the guilt of the accused.
77. While determining the questions relateable to sentencing
policy, the Court has to follow certain principles and
those principles are the loadstar besides the above
considerations in imposition or otherwise of the death
sentence.
Principles:
(1) The Court has to apply the test to determine, if it
was the 'rarest of rare' case for imposition of a
death sentence.
(2) In the opinion of the Court, imposition of any other
punishment, i.e., life imprisonment would be
completely inadequate and would not meet the ends of
justice.
(3) Life imprisonment is the rule and death sentence is
an exception.
(4) The option to impose sentence of imprisonment for
life cannot be cautiously exercised having regard to
the nature and circumstances of the crime and all
relevant considerations.
33
(5) The method (planned or otherwise) and the manner
(extent of brutality and inhumanity, etc.) in which
the crime was committed and the circumstances leading
to commission of such heinous crime.
78. Stated broadly, these are the accepted indicators for the
exercise of judicial discretion but it is always preferred
not to fetter the judicial discretion by attempting to
make the excessive enumeration, in one way or another. In
other words, these are the considerations which may
collectively or otherwise weigh in the mind of the Court,
while exercising its jurisdiction. It is difficult to
state it as an absolute rule. Every case has to be decided
on its own merits. The judicial pronouncements, can only
state the precepts that may govern the exercise of
judicial discretion to a limited extent. Justice may be
done on the facts of each case. These are the factors
which the Court may consider in its endeavour to do
complete justice between the parties.
79. The Court then would draw a balance-sheet of aggravating
and mitigating circumstances. Both aspects have to be
given their respective weightage. The Court has to strike
a balance between the two and see towards which side the
scale/balance of justice tilts. The principle of
proportion between the crime and the punishment is the
principle of 'just deserts' that serves as the foundation
of every criminal sentence that is justifiable. In other
words, the 'doctrine of proportionality' has a valuable
application to the sentencing policy under the Indian
criminal jurisprudence. Thus, the court will not only have
to examine what is just but also as to what the accused
deserves keeping in view the impact on the society at
large.
80. Every punishment imposed is bound to have its effect not
only on the accused alone, but also on the society as a
whole. Thus, the Courts should consider retributive and
deterrent aspect of punishment while imposing the extreme
punishment of death.
81. Wherever, the offence which is committed, manner in which
it is committed, its attendant circumstances and the
motive and status of the victim, undoubtedly brings the
case within the ambit of 'rarest of rare' cases and the
Court finds that the imposition of life imprisonment would
be inflicting of inadequate punishment, the Court may
award death penalty. Wherever, the case falls in any of
34
the exceptions to the 'rarest of rare' cases, the Court
may exercise its judicial discretion while imposing life
imprisonment in place of death sentence.”
Last of all, reliance was placed on the judgment rendered by this
Court in Brajendra Singh Vs. State of Madhya Pradesh, (2012) 4 SCC
289, wherein, this Court having followed the decision rendered in
Ramnaresh & Ors. Vs. State of Chhattisgarh (cited supra), further
held as under:-
“38. First and the foremost, this Court has not only to
examine whether the instant case falls under the category
of 'rarest of rare' cases but also whether any other
sentence, except death penalty, would be inadequate in the
facts and circumstances of the present case.
39. We have already held the Appellant guilty of an offence
under Section 302, Indian Penal Code for committing the
murder of his three children and the wife. All this
happened in the spur of moment, but, of course, the
incident must have continued for a while, during which
period the deceased Aradhna received burn injuries as well
as the fatal injury on the throat. All the three children
received injuries with a knife similar to that of the
deceased Aradhna. But one circumstance which cannot be
ignored by this Court is that the prosecution witnesses
have clearly stated that there was a rift between the
couple on account of her talking to Liladhar Tiwari, the
neighbour, PW10. Even if some credence is given to the
statement made by the accused under Section 313 Cr.P.C.
wherein he stated that he had seen the deceased and PW10
in a compromising position in the house of PW10, it also
supports the allegation of the prosecution that there was
rift between the husband and wife on account of PW10. It
is also clearly exhibited in the FIR (P-27) that the
accused had forbidden his wife from talking to PW10, which
despite such warning she persisted with and, therefore, he
had committed the murder of her wife along with the
children.”
30. We are one with the learned counsel for the accused-appellant,
on the parameters prescribed by this Court, for inflicting the death
35
sentence. Rather than deliberating upon the matter in any further
detail, we would venture to apply the parameters laid down in the
judgments relied upon by the learned counsel for the accusedappellant,
to determine whether or not life imprisonment or in the
alternative the death penalty, would be justified in the facts and
circumstances of the present case. We may first refer to the
aggravating circumstances as under:-
(i) The accused-appellant has been found guilty of the offence
under Section 364A of the Indian Penal Code. Section 364A
is being extracted hereunder:-
“364A. Kidnapping for ransom, etc.—Whoever kidnaps or
abducts any person or keeps a person in
detention after such kidnapping or abduction
and threatens to cause death or hurt to such
person, or by his conduct gives rise to a
reasonable apprehension that such person may be
put to death or hurt, or causes hurt or death
to such person in order to compel the
Government or any foreign State or
international inter-governmental organization
or any other person to do or abstain from doing
any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall
also be liable to fine.”
A perusal of the aforesaid provision leaves no room for
any doubt, that the offence of kidnapping for ransom
accompanied by a threat to cause death contemplates
punishment with death. Therefore, even without an accused
actually having committed the murder of the individual
kidnapped for ransom, the provision contemplates the death
36
penalty. Insofar as the present case is concerned, there
is no doubt, that the accused-appellant has been found to
have kidnapped Suresh for ransom, and has also actually
committed his murder. In the instant situation therefore,
the guilt of the accused-appellant (under Section 364A of
the Indian Penal Code) must be considered to be of the
gravest nature, justifying the harshest punishment
prescribed for the offence.
(ii) The accused-appellant has also been found guilty of the
offence of murder under Section 302 of the Indian Penal
Code. Section 302 of the Indian Penal Code also
contemplates the punishment of death for the offence of
murder. It is, therefore apparent, that the accusedappellant
is guilty of two heinous offences, which
independently of one another, provide for the death
penalty.
(iii) The accused caused the murder of child of 7 years.
The facts and circumstances of the case do not depict any
previous enmity between the parties. There is no grave
and sudden provocation, which had compelled the accused to
take the life of an innocent child. The murder of a
child, in such circumstances makes this a case of extreme
culpability.
37
(iv) Kidnapping of a child was committed with the motive of
carrying home a ransom. On account of the non-payment of
ransom, a minor child’s murder was committed. This fact
demonstrates that the accused had no value for human life.
The instant circumstance demonstrates extreme mental
perversion not worthy of human condonation.
(v) The manner in which the child was murdered, and the
approach and method adopted by the accused, disclose the
traits of outrageous criminality in the behaviour of the
accused. The child was first strangulated to death, the
dead body of the child was then tied in a gunny bag, and
finally the gunny bag was thrown into a water tank. All
this was done, in a well thought out and planned manner.
This approach of the accused reveals a brutal mindset of
the highest order.
(vi) All the aforesaid aggravating circumstances are liable to
be considered in the background of the fact, that the
child was known to the accused-appellant. In the
examination of the accused under Section 313 of the Code
of Criminal Procedure, the accused acknowledged, that he
used to see the child whenever the child was taken by his
mother to her native village. Additionally, it is
acknowledged in the pleadings, that the accused had
38
developed an acquaintance with the child, when his mother
used to visit her native place along with her son. Murder
was therefore committed, not of a stranger, but of a child
with whom the accused was acquainted. This conduct of the
accused-appellant, places the facts of this case in the
abnormal and heinous category.
(vii) The choice of kidnapping the particular child for
ransom, was well planned and consciously motivated. The
parents of the deceased had four children – three
daughters and one son. Kidnapping the only male child was
to induce maximum fear in the mind of his parents.
Purposefully killing the sole male child, has grave
repercussions for the parents of the deceased. Agony for
parents for the loss of their only male child, who would
have carried further the family lineage, and is expected
to see them through their old age, is unfathomable.
Extreme misery caused to the aggrieved party, certainly
adds to the aggravating circumstances.
31. As against the aforesaid aggravating circumstances, learned
counsel for the accused-appellant could not point to us even a
single mitigating circumstance. Thus viewed, even on the parameters
laid down by this Court, in the decisions relied upon by the learned
counsel for the accused-appellant, we have no choice, but to affirm
the death penalty imposed upon the accused-appellant by the High
39
Court. In fact, we have to record the aforesaid conclusion in view
of the judgment rendered by this Court in Vikram Singh & Ors. Vs.
State of Punjab, (2010) 3 SCC 56, wherein in the like circumstances
(certainly, the circumstances herein are much graver than the ones
in the said case), this Court had upheld the death penalty awarded
by the High Court.
32. In view of the above, we find no justification whatsoever, in
interfering with the impugned order of the High Court, either on
merits or on the quantum of punishment.
33. Dismissed.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
February 5, 2013.
40
ITEM NO. ID COURT NO. 2 SECTION II
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NOS. 300-301 OF 2011
SUNDER @ SUNDARARAJAN .. Appellant(s)
Versus
STATE BY INSPECTOR OF POLICE .. Respondent(s)
DATE : 05/02/2013 These matters were called on for
pronouncement of judgment today.
For Appellant(s) Mr. K.K. Mani,Adv.
Mr. Abhishek Krishna,Adv.
Mr. A.Lakshminarayan,Adv.
For Respondent(s) Mr. S. Thananjayan,Adv.
---
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice P.
Sathasivam and His Lordship.
The appeals are dismissed in terms of the signed
reportable judgment.
[ Madhu Bala ]
Sr.PA
[ Savita Sainani ]
Court Master
[ Signed reportable judgment is placed on the file ]