REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos. 1174-1175 of 2019 [Arising out of SLP (Criminal) Nos.7581-7582 of 2014)

Manoharan          …Appellant

Versus State by Inspector of Police, Variety Hall Police Station, Coimbatore       …Respondent

J U D G M E N T

R.F. NARIMAN, J.

1. Leave granted.

2. The present appeals raise the spectre of a ghastly rape and

murder.  The brief facts necessary for appreciation in these appeals

are as follows.  

3. One Mohanakrishnan (at  7.50 a.m.  on 29.10.2010)  who had

borrowed a vehicle from PW.7 its owner, picked up two children, a girl

aged 10 years old and her brother aged 7 years old from outside a

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Hindu Temple as the children were preparing to go to school. This

Mohanakrishnan  was  seen  by  PW.3,  the  priest  of  the  particular

Vinayakar Temple and by PW.9, the grandmother of the two children,

taking the children away in the aforesaid vehicle.  Mohanakrishnan

then drove the children to a petrol pump at around 8.15 a.m. on the

same day, and at 9.30 a.m. picked up the Appellant from his house in

Angalakuruchi.  The children were then taken to a remote area called

the Gopalsamy Temple Hills at roughly 10.45 a.m. at which point rape

was allegedly committed on the girl whose hands were tied by both

Mohanakrishnan and the Appellant. Thereafter, considering that the

girl  had  been  brutally  raped  (her  anus  having  ruptured),  the  two

accused bought what is called cow dung powder which is nothing but

a poisonous substance which is added to cow dung to keep insects

away. This substance together with milk that was also purchased by

the  Appellant  herein  was  allegedly  administered  by  both

Mohanakrishnan as well as the Appellant to the two children in an

attempt to do away with both of them. Both children ingested only a

small portion of the cow dung powder mixed with the milk and did not

die.  Mohanakrishnan and the Appellant  thereafter  to do away with

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both the children threw them in Parambikulam-Axhiyar Project canal

(“PAP Canal”) and it was alleged by the prosecution that the girl was

tied up and pushed into the canal by the Appellant herein whereas

the boy was pushed into the canal by Mohanakrishnan.  At 5.00 p.m.,

PW.24 saw the school bags of the two children floating in the canal,

which were then given to PW.22. Later on the same evening, PW.22

informed PW.10 the principal of  the school who then informed the

police between 6.15 p.m. and 6.30 p.m. the same evening.  At 9.00

p.m. on the same day, Mohanakrishnan went to the house of PW.7

one Anbu @ Gandhiraj, who informed the police, as a result of which

Mohanakrishnan  was  arrested  at  9.45  p.m.  on  the  same night  at

PW.7’s house.   At  9.30 a.m.  on the next  day,  the girl’s  body was

recovered from the canal.  On 31.10.2010, the present Appellant was

arrested at 7.15 a.m. and on the same day, the boy’s body was also

recovered  from  the  canal.   To  complete  the  narrative,

Mohanakrishnan was shot  dead by the police  on 9.11.2010 in  an

encounter. That left only the Appellant to be tried as an accused. A

confession was recorded before the Magistrate in a statement made

under  Section  164  of  the  Code  of  Criminal  Procedure  by  the

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Appellant on 20.11.2010 which was partially retracted only by a letter

dated 25.7.2012, which the Appellant asked the trial court to treat as

a statement under Section 313 of the Code of Criminal Procedure.  

4. The prosecution examined a large number of witnesses - 49 in

all. The trial court in a detailed judgment ultimately held the Appellant

guilty under Section 120-B, Section 364-A, Section 376, Section 302,

Section 302 read with Section 34 and Section 201 of the Indian Penal

Code.  Under  Section  376  IPC,  the  Appellant  was  awarded  life

sentence, and for the offence under Section 302 IPC, he was given

the death sentence.  

5. The High Court  of  Madras,  in  the impugned judgment  dated

24.3.2014, set aside the Appellant’s conviction under Section 120-B

and 364-A of  the Penal  Code, but  confirmed the sentences under

Sections 376, 302, Section 302 read with Section 34, and Section

201.  After  considering  aggravating  and  mitigating  circumstances,

ultimately  the  death  sentence  imposed  by  the  trial  court  was

confirmed by the High Court.  

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6. In order to make out the offence of kidnapping the two children

for  ransom,  a  number  of  witnesses  were  examined.   Though  the

Appellant was acquitted for this offence, yet the High Court found that

the last seen theory was made out in the facts of the present case

after closely scrutinizing the evidence of the following witnesses:

1. Sundararajan  –  PW.3,  who  was  the  temple  priest  who  saw

Mohanakrishnan picking up the two children around 8.00 a.m.

on 29.10.2010.  

2. Senthil Kumar – PW.20, a tailor, who saw both the accused with

the children at 10.00 a.m. on that day.

3. N.  Mani  -  PW.25,  owner  of  a  brick  kiln  in  the  foot  hills  of

Gopalasamy Hills, who saw both the accused with the children

at  roughly  10.45  a.m.  as  they  were  coming  down  from the

Gopalasamy Hillock.  

4. Saravanakumar -  PW.23, owner of a bakery who sold the milk

at 1.00 p.m. on the same day to the Appellant, who saw the two

children with Mohanakrishnan and the Appellant; and  

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5. R. Soundararajan – PW. 24 who saw both the accused with the

children in a Maruti van around 3.00 p.m. on the same day.   

On the basis of this evidence, the Court held:-

“38.  After  closely  scrutinizing  the  evidences  of (a)Sundararajan [P.W.3],  the temple Priest,  who saw Mohanakrishnan picking  up  the  two children  around 8.00 a.m.  on 29.10.2010;  (b)K.Senthil  Kumar [Tailor, P.W.20], who saw both the accused with the children at  10.00  a.m.  on  29.10.2010;  (c)  N.Mani  [P.W.25] owner of the Brick kiln at the foothills of Gopalsamy Hills, who saw both the accused with the children at 10.45  a.m.  on  29.10.2010,  while  they  were  coming down  from  the  hills;  (d)  Saravanakumar  [P.W.23] owner of “Winner Bakery”, who sold milk at 1.00 p.m. on 29.10.2010 to the accused and who saw the two children with them and (e) R.Soundararajan [P.W.24] who saw both  the  accused  with  the  children  in  the Maruthi van around 3.00 p.m. on that day, we have no hesitation in our mind that the prosecution has proved beyond reasonable doubt that Mohanakrishnan picked up the two children and later Manoharan joined him and together both the accused were last seen with the two children and thus, the prosecution has proved the kidnapping and last  seen theory  without  any iota  of doubt.”

So far  as rape of  the girl  by the Appellant is concerned, the High

Court concluded as follows:-

“44. To sum up, we hold that the panties M.O.1 was recovered with hairs on 29.10.2010 in the Maruthi van with  the  help  of  Saravanan,  P.W.43,  the  expert  of

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Forensic Sciences Laboratory and the same was sent to  the Court  without  delay and thereafter,  the Court had  sent  it  to  the  Forensic  Sciences  Department, where, after DNA comparison, the experts have opined that the DNA profiles in the pubic hairs tally with the DNA profile extracted from the blood of Manoharan.  

45.  Since we have left  incomplete the discussion in Para No.9 supra about “Evidence Relating to Rape of 'X'”, we are now concluding it  after answering to the points  raised  by  Mr.A.Raghunathan  relating  to  the seizure of the panties (M.O.1).  

46. From (a) the final opinion of Dr.Jeyasingh that 'X' was subjected to sexual assault; (b) injury on the penis of Manoharan; (c) the absence of panties in the dead body of 'X'; (d)the presence of panties (M.O.1) in the Maruthi van; (e)identification of the panties (M.O.1) by 'X''s  father;  (f)presence of  hairs  on it  at  the time of recovery  and  (g)matching  of  DNA profile  extracted from the  hair  with  that  of  Manoharan,  we hold  that Manoharan  has  subjected  'X'  to  sexual  assault.  To come to this finding also, we have still  not used the judicial confession given by Manoharan.”

The High Court devoted a few pages to the confession made by the

Appellant to the Magistrate.  The High Court held:  

“47. Confession of Manoharan:  

L.Sathyamoorthy,  P.W.28,  Judicial  Magistrate  No.1, Coimbatore examined Manoharan on 19.11.2010 and extensively questioned him and made a roving enquiry in  order  to  find  out  if  he  was  voluntarily  giving confession  statement.  The  questions  were  asked  in Tamil and the answers were also recorded in Tamil by the learned Judicial Magistrate. 17 questions were put to him on 19.11.2010. Thereafter, he was sent back to

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the jail for reflection and was directed to be produced the next day again i.e. on 20.11.2010. On 20.11.2010, the learned Judicial Magistrate has put nine questions to him. He has even told Manoharan that he need not have to give any confession. We also went through the preliminary  examination  done  by  the  Judicial Magistrate on 19.11.2010 and 20.11.2010 and we find that  the  Judicial  Magistrate  has  not  mechanically acted,  but  has  sincerely  endeavoured  to  make  the accused be aware of his rights and also the fallout of giving a confession. Sufficient reflection time was also given by the learned Judicial Magistrate and thereafter, he has proceeded to record his confession.”

It then set out some of the relevant questions that were asked by the

said Magistrate to the Appellant as follows:-

“49.  We  gave  our  anxious  consideration  to  the arguments  advanced  by  the  learned  senior  counsel and therefore,  we scrutinized carefully the questions put  by  the  Judicial  Magistrate  on  19.11.2010  and 20.11.2010.  

The learned Judicial Magistrate has put 17 questions on  19.11.2010.  Some  relevant  questions  run  thus (English Translation):  

Question No.5 : Do you know that I am a Judicial Magistrate No.1, Coimbatore?

Ans :Yes.  I know that this is Judicial Magistrate Court, but only from you, I know the number.

Question No.9 :Do you know as to why you have come here?  

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Ans  :  I  want  to  give  a  true  statement  to  the Judicial Magistrate. That is why I have come here.

Question  No.10  :Did  police  torture  to  give statement in any manner?  

Ans :No. Nothing like that has happened.  

Question No.11 :Did the Police or anyone tell you that  if  you  give  confession  statement,  it  will  be beneficial to you and if you do not give confession statement, they will do something to you?  

 Ans :No one has said like that to me.

Question No.12 : Are you aware that you have no duty to give confession?  

Ans :I have understood it from what you told now.  

Question No.15 :I am asking you once again this question,  Has  anybody tortured  you  or  induced you to give confession?  

Ans :No. Nobody has tortured me.

50. Again on 20.11.2012, some questions were asked to  Manoharan  in  order  to  find  out  whether  he  was voluntarily willing to give confession. Only thereafter, the  learned  Judicial  Magistrate  has  recorded  the confession.”

Since  the  confession  was  later  partially  retracted,  the  High  Court

dealt with this aspect of the matter as follows:-

“61.  In  this  case  confession  was  recorded  on 20.11.2010 and it  was retracted only on 13.08.2012 during  the  cross  examination  of  Mr.  L.S.

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Sathiyamoorthy (P.W.28).  When Manoharan was put the following question under Section 313 Cr.P.C. viz. "That  P.W.28  Mr.L.S.  Sathiamoorthy  in  his  evidence has  stated  that  he  was  Judicial  Magistrate  in Coimbatore  and  that  he  examined  Manoharan  on 19.11.2010 in the Court for the purpose of recording the confession statement  and for  that  he had taken appropriate steps and had also given 24 hours time to reflect  and  that  on  20.11.2010,  he  recorded  the confession  statement  running  to  17  pages  in  the appropriate  manner.  That  confession  statement  is Ex.P.18.  What  do  you  say?"  The  answer  given  by Manoharan  is,  "Correct".  This  singular  answer  of Manoharan demolishes the defence argument that the Magistrate had not followed the proper procedure for ascertaining whether the confession was voluntary.

62. xxx xxx xxx

63.  We  have  already  extracted  the  statement  of Manoharan under Section 313 Cr.P.C. with regard to the evidence of Mr. L.S. Sathiamoorthy P.W.28. This statement under Section 313 Cr.P.C. was recorded on 04.09.2012,  after  the  evidence,  whereas  Mr.  L.S. Sathiamoorthy was crossexamined on 13.08.2012. In other words on 13.08.2012, when P.W.28 was cross examined  by  the  counsel,  the  confession  was retracted.  But  in  the  313  examination  recorded subsequently on 04.09.2012, Manoharan had admitted that the confession was properly recorded. Manoharan was examined by us u/s 313 Cr.P.C. on 27.02.2014 with regard to the inculpatory portion in his confession statements. At that time he stated that Police forced him to give the confession. 64.  We  may  now  mention  about  the  letter  dated 25.07.2012 written by Manoharan from jail addressed to the Sessions Judge which he wanted to be treated as his statement under Section 313 Cr.P.C.'73. In that

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letter he has stated that Police made him to confess to the  crime  and  had  it  videographed  in  the  Police Station. Thereafter they played the videograph to the Magistrate and the Magistrate merely wrote down the confession  statement  by  seeing  the  videograph.  In other  words,  the  Magistrate  did  not  record  any statement  from him  directly  but  copied  a  statement from the  videograph.  This  is  given  as  a  reason  for retraction.  Such  a  suggestion  was  not  even  put  to Mr.Sathiamurthi,  the  Magistrate  when  he  was  cross examined. Applying the test in Subramania Goundan's case cited above, we cannot but simply reject the very retraction.”

The High Court then held that the confessional statement given

by the Appellant was voluntarily made and the retraction was clearly

an afterthought.   

The  confessional  statement  given  by  the  Appellant  was  set  out

verbatim by the High Court as follows:-

“66.  The  English  translation  of  the  confession statement given by Manoharan that was given in Tamil is given below:  

"I used to go for flower business along with my mother Amavasai  Selvi  on  Fridays.  I  do  not  remember  the date. About two weeks ago, on a Friday, I finished my flower business and had my breakfast at 9.15 in the morning.  Afterwards,  when I  was about  to  attend to tractor  work  of  my  owner  Thambu,  my  friend Mohanakrishnan, who studied with me till 7th standard in the same school at Angalakurichi, came to my home at 9.30 A.M. in the morning in a Maruti Omni Van. He

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knew my house. He called me to Azhiyaru dam. He asked for some rope, which was lying near my house, took that rope and kept it in the omni van. He asked me to get into the van and I sat next to the driver seat in the omni van. A boy and a girl  in School uniform were seated at  the back seat.  When I  asked about them, he told me that they had come to see Azhiyaru, and that a school bus had already gone ahead. When we went to the house of Mohanakrishnan, which was located near the Tank-mound, which was in Azhiyaru road, there was a tailor. He asked that tailor for two covers and obtained them. There was no possibility for the tailor to look at the persons, who were seated in the omni van. The vehicle was parked on the road. In the meantime, a telephone call came. When I asked, Mohanakrishnan he said that it  was his mother, who spoke over the phone. Again, we went to my house in the vehicle. He told me to get fifty rupees. I got it from my mother. He asked me to buy two packets of cow dung  powder  for  mopping  up  his  house.  I  got  two packets for Rs.12/- Rs.6/- each from Nayakam's shop, which is next to my house. I kept them in the omni van and we went straight to the hill of Gopalsamy temple. We parked the vehicle at the foothill and walked up the hill.  Mohanakrishnan asked the children to  climb up the hill so that they could see tiger, lion and deer. Both of them ie., the girl and the boy walked some distance and  stopped.  They  sternly  said  that  they  would  not come up. They started crying stating that they wanted to go to school. Immediately, Mohanakrishnan took the mobile  phone  and  made  a  fake  call,  as  if,  he  was talking  to  the  Principal  Sir,  saying  that  they  would come then, that the vehicle broke down and that they would come to the school immediately. He asked for apology from the Principal for being late to the school and made the children believe his words. But the small boy asked his elder sister in their language, not to go. Then  both  of  them started  crying.  Hence,  all  of  us

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came back without going up the hill. Immediately, we started  from  the  Gopalsamy  foothill  and  crossed Manjanaickanur,  Kambalampatti,  crossed  the  bridge and went to a place adjacent to the canal. That place looked like a big forest with groves all around. I do not know the name correctly. We parked the vehicle under the tree and I  said I  needed to answer nature's call urgently.  So saying, I went by the side of the canal. The boy, who was in the vehicle was tied with a rope near the side of the driver seat, so that he could not go out. He put that female child alone in the back seat and tied her hands behind. When I asked him, he said that I was not aware that he and her father had a deal. Then Mohan stripped all  his  garments,  removed the pant of the said girl, and laid himself upon her. When I asked  him,  he  told  me  he  would  make  the  girl  a prostitute. He had sex with that girl  and raped her. I thought if the small boy was present there at that time, it  would  be embarassing and I  slowly  took him out. Later on,  after  some time, I  returned with that small boy. Then I asked Mohan as to how he felt. He said that  his  male  organ  could  not  properly  penetrate.  I asked him to give me a chance. Immediately he asked me to have sexual intercourse with that girl. Mohan sat in the front seat and watched. I went and saw the said girl who did not wear the pant and who was in the back seat. When I placed my penis in the front, the girl cried stating that she felt pain She was also adamant. Then, I had intercourse with her on her back side, through her rectum. That also did not suit me. Immediately, I masturbated  and  ejected  the  seminal  fluid  ([tpe;J jz;zpia).  Having  thought  that  if  the  matter  became public  and  revealed  out,  it  would  become  a  big problem for us, all the 4 of us went near our house by the vehicle. There, I bought milk in a plastic bag for ten rupees. Mohan asked me to buy milk saying that it was required  for  the  children.  Then  in  order  to  let  the children  believe  that,  we  transferred  the  milk  into  a

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water bottle and mixed it with cow dung powder. When we made the children drink that, the girl and the boy swallowed half and spat out the remaining half on the seat.  When  I  bought  the  said  milk,  I  bought  two disposable plastic tumblers. I asked them to drink only through that. She swallowed only half of that and spat the remaining milk. After giving the cow dung powder, we drove the omni vehicle again to Manjanayakanur. It would be noon time, when we went to Deepalipatti. We did not know the time exactly. He told me that in such a situation, one should always pass through the place, which is not frequented by people. He went near the canal,  pushed  the  girl  and  returned.  Then  he  was sweating a lot.  Thereafter,  I  pushed the boy and he was  washed  away  by  the  flow  of  the  water  in  the canal,  in  which  water  had  been  flowing  fully.  Then, after  travelling  some  distance  Mohan  halted  the vehicle, and when he saw me, it looked that he would push me too. But, we took the school bag and threw it in  the  canal.  Then  he  dropped me at  Angalakurichi tollgate. Then, he told me that he had thought that he would get  Rupees Twenty lakhs,  and that  the event had resulted  in  that  manner.  He told  that  he  would abscond thereafter. He told me that he would sport " "Lion-moustache"  and  asked  me  not  to  disclose  to anyone and to come with him. Since, Mohan told me that he would buy an autorickshaw for me, I went with Mohan and it happened like this. Then, the same day, at 7.30 p.m. Mohan called me up in my mobile number 9790299953 from his mobile number and talked to me. I don't know the number. He threatened me asking not to  disclose  the  matter  to  anyone.  This  only  had happened I don't wish to say anything else.”

MAGISTRATE'S NOTE [ENGLISH VERSION]  

"I  recorded  the  statement  given  by  Manoharan,  the person  who  was  charged  as  above,  in  my  own

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handwriting  as  stated  by  him.  After  recording completely, it was read over to him clearly. I asked him to read it and after he had acknowledged it as correct, his  signature  was obtained  in  my presence.  Till  the completion of the recording of the statement, the doors of  the  court  were  bolted,  closed  and  the  entire proceedings were held in camera. Then, no one else other  than  me,  my  court  assistant  Thiru.T.Raja  and Office Assistant M.M.Vijayakumar were present."

This being done, then the High Court in paragraph 70 in

tabular form set out in a table the facts that are admitted in the

confessional  statement;  what  continues  to  be  admitted  and

what is retracted by the letter dated 25.7.2012; and the other

evidence  on  record  which  otherwise  corroborates  the

confessional statement.  This aspect of the case is important

and is set out hereinbelow:-  

“70. Now we are giving a tabular column to corroborate the confession statement:

SI.

No

Confession  Statement Ex. P.18

Written  Statement  Dated  25.07.2012

Evidence on  record

1. He  knows Mohanakrishnan

He  admits this fact

--

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2. Mohanakrishnan picked  him  up around 9.30 a.m.  in the  Maruthi  Omni Van saying that they are  going  to  Aliyar Dam

He  admits this fact

--

3. Mohanakrishnan took the two children in School uniform in the  Maruthi  Omni Van

He  admits this fact

--

4. Mohanakrishnan went  to  meet  the Tailor

He  admits this fact

Evidence  of the  Tailor P.W.20 Senthilkumar, who  saw  both of  them  with the children at 10.00 a.m.

5. Mohanakrishnan and  Manoharan went  to  purchase cow  dung  powder from  the  shop  of Nayagam [P.W.35]

He  admits this fact

P.W.35 Nayagam corroborate this fact.

6. Both of them went to Gopalsamy hills with the two children and climbed  the  hill  by walk

He  admits this fact

Both  of  them were seen with two children at Gopalsamy Hills  by N.Mani, P.W.25.

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7. Both  of  them proceeded  to  a secluded  place besides the canal

He  admits this fact

--

8. Both of them parked the  vehicle  and Manoharan  goes  to attend nature's call

He  admits this fact

--

9. On  Manoharan returning,  he  finds Mohanakrishnan raping 'X'  after tying her with a rope

He  admits this fact

--

10. After Mohanakrishnan, Manoharan raped 'X'

He  does not  admit this fact

--

11. Manoharan attempts vaginal  coitus,  the child  cried,  he does anal coitus

He  does not  admit this fact

The postmortem shows  'X'  had injuries  on vagina  and anus. Manoharan had  injury  in the penis.

12. Thereafter they went to winner bakery and purchased  milk  for Rs.10/-

He  admits this fact

Saravana Kumar, P.W.23,  owner of  Winner Bakery corroborates.

13. The  Children  are given  cow  dung Giving  Milk Viscera  shows

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powder  mixed  in milk alone  is

admitted the  presence of  auramine poison  in  the stomach  and small  intestine of  both  the children (Ex.P.50  and 53)

14. The  children  drank some  of  the  milk mixed with auramine and  spit  the  rest  in the van

He  does not  admit this fact

Stains  were found  in  the floor mat of the van

15. Both  the  accused take  the  children  to Deepalapatti area of the canal

He  does not  admit this fact

Both  of  them are  seen  by Sundarrajan, P.W.24.

16. Mohanakrishnan pushed  'X'  in  the canal  and Manoharan  pushed 'Y' in the canal

He  does not  admit the fact

Body of 'X' and 'Y'  are recovered from the canal and  the postmortem report  shows that  they  died of  drowning and  they  had auramine poison  in  the stomach

”

Based on this, the High Court, therefore, concluded:-

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“71. Therefore we have no hesitation in holding that the  confession  statement  Ex.P.18  has  been corroborated in all aspects and the same is true. If one reads the letter dated 25.07.2012, which Manoharan wanted to treat as a written statement under Section 313  Cr.P.C.,  the  exculpatory  portions  are  absolutely incredible. He says that it was Mohanakrishnan, who raped  'X',  but  he  was  simply  sitting  and  watching. Then,  he says that  he got  down from the van at  a distance  and  after  that  he  was  picked  up  by Mohanakrishnan  again  and  at  the  time,  the  two children  were  missing.  What  is  baffling  us  is, Manoharan was aged about 23 years at that time and he  did  nothing  to  prevent  Mohanakrishnan  from committing a horrendous crime of raping a child and pushing the two children into the running canal.  We find that  the explanation given by Manoharan in  his written  statement  is  patently  false  and  the  Hon'ble Supreme Court has stated that a false explanation will provide  the  missing  link  in  a  case  based  on circumstantial evidence.”

“78.  To  sum  up,  we  hold  that  the  prosecution  has proved all the circumstances beyond reasonable doubt and  if  we  apply  the  golden  rule  laid  down  by  the Supreme Court in Sharad Birdhichand Sarda vs. State of  Maharashtra [1984 (4)  SCC 116] the inescapable inference we come to is, that Manoharan had joined Mohanakrishnan who had already kidnapped the two children;  that  Manoharan  raped  'X'  and  also  had sodomica luxuria (anal coitus); that Manoharan shared the  common  intention  with  Mohanakrishnan  in  the murder  of  'X',  by  pushing  her  in  the  canal;  and Manoharan murdered 'Y' by pushing him in the canal; the murder  was committed in  order  to  cover  up the offence of kidnapping and rape.”

When it came to confirming the death sentence, the High Court held:-

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“82. In this case, the aggravating circumstances are:  

(i) The offence is one of rape of a minor and murder of two children;  

(ii) The hands of 'X' were tied behind and one after the other they have raped her;  

(iii)  After  committing  rape,  cow  dung  powder  which contains  auramine  and  which  is  normally  used  for committing suicide was purchased from a shop and milk was purchased from another shop.  

(iv) Thereafter, they mixed the cow dung powder and milk and filled it  in a water bottle and gave it  to the children. Both the children drank a little bit of it and spit the balance in the car. Then the accused realised that since the children had spit the milk mixed with poison, they may not die. They wanted to make sure that the children  die  and  so  they  took  the  children  to Deepalapatti,  a  secluded  place  in  the  outskirts  of Coimbatore District, where the P.A.P. canal flows with gusto.  

(v) They pushed one child after the other and the body of  the  children  were  recovered  several  kilometres away in the canal. Manoharan pushed 'Y'  

and  the  body  was  recovered  12  km  away  from Deepalapatti  two  days  later.  Here  both  the  victims were innocent, helpless and defenceless children.

83. MITIGATING CIRCUMSTANCES: There is nothing to  suggest  that  Manoharan  suffered  from  any emotional or mental imbalance or disturbance or was under any external provocation while committing this offence. As regards the chances of him not indulging in commission of such a crime again, we find that even in his letter addressed to the learned Sessions Judge, he was trying to fix the responsibility on Mohanakrishnan

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and was attempting to absolve himself completely of the offence. He went to the extent of even charging that  the  Magistrate  had  colluded  with  the  police  in recording  the  confession  by  seeing  the  videograph. There does not  seem to  be any remorse shown by Manoharan.  

84. CRIME TEST: The victim in this case were 10 and 7 years old and they were defenceless. The victim 'X' was  first  raped  by  Mohanakrishnan;  Manoharan committed  rape  and  since  she  cried,  he  committed sodomy.  Since  that  also  did  not  satisfy  him,  he masturbated in order to release his excitement in the presence  of  the  children.  They  were  administered poison and then to be doubly sure that they die, they were pushed into the running waters.  

85.  CRIMINAL TEST:  Manoharan  is  an  able  bodied person and is aged about 23 years. As stated earlier, he does not seem to show any inkling of reformation. Therefore,  we  hold  that  the  criminal  test  is  also satisfied.

86. RR TEST:  

This is society centric test and not judge centric test, i.e. whether the society will  approve the awarding of death  sentence  to  certain  types  of  crime  or  not.  In Sevaka Perumal v. State of Tamil Nadu [1991 (3) SCC 471] the Supreme Court has said :  "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.  Where  an accused  does  not  act  or  any  spur  of  the  moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime."  

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In this case also, the accused will be a menace to the society as could be inferred in the manner in which he raped a 10-year old child and pushed a 7-year old boy in the canal. Hence, the R.R. test is also satisfied.”

7. Shri  P. Vinay Kumar, learned counsel appearing on behalf of

the Appellant,  assailed the High Court judgment by stating that he

adopted  the  arguments  of  Shri  A.  Raghunathan  where  Shri

Raghunathan assailed the allegation that the Appellant had raped the

10 years old girl. In paragraph 41 of the judgment, the High Court had

held regarding the evidence relating to rape as follows:-

“41.   Evidence relating to Rape of 'X':  

There  is  no  direct  evidence  to  prove  this  fact.  The prosecution  is  relying  upon  the  following  pieces  of evidence for inferring rape.  

(a) Dr.Jeyasingh [P.W.46], who conducted the autopsy on  the  body  of  'X',  has  stated  that  he  found  “(4) Contusion 2x1 cm x 0.5 cm depth noted over in the posterior fouchette and lateral wall of vagina. Hymen Intact. (5)On examination of anus:- Anus found roomy measuring  3  cm  in  diameter  and  mucosal  tear  1  x 0.5cm x mucosal deep noted over left lateral aspect of the anus at the level of muco-cutaneous junction. On dissection of Thorax and Abdomen: Contusion 4x2 cm noted over anterior aspect of lower end of uterus.” In his  final  opinion,  Ex.P.50,  he  has  stated,  “The deceased would appear to have died of DROWNING. Injuries noted on the vagina and anus due to forcible sexual  assault.  The  deceased  has  consumed

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auramine poison prior to death (detected in stomach & small intestine)”.  

(b) Dr.Jeyasingh, examined Manoharan on the orders of  the  Magistrate  on  04.11.2010  and  observed  the following injury on his penis in his report Ex.P.56.

“A dark colour contusion noted over proximal part of glands penis around urethral orifice.”  

(c)The Police had recovered the panties [M.O.1] of 'X' with some hair strand from the Maruthi van as early as on 29.10.2010 and had sent  the same to  the Tamil Nadu Forensic Sciences Laboratory through the Court for D.N.A. Analysis. The blood samples and saliva that were collected from Mohanakrishnan and Manoharan by Dr.Bhuvana [P.W.44]  were also sent  to  the Tamil Nadu  Forensic  Sciences  Laboratory.  The  D.N.A. analysis was done by Mrs.Lakshmi Balasubramaniam [P.W.49]. She was examined by us in this Court, the reason for which we have already given in the earlier part of the judgment. In her evidence, she stated that she  extracted  D.N.A.  from  the  blood  samples  of Mohanakrishnan and Manoharan and amplified them for  amelogenin  and  for  15  Short  Tandem  Repeat markers using PCR amplified STR technique. The hair strands that were received by the Forensic Sciences Department  from the Court  with  the panties  [M.O.1] was  also  subjected  to  amplification  for  amelogenin. The  DNA  typing  results  of  the  blood  samples  of Mohanakrishnan and Manoharan were compared with the DNA profile of the hair in the panties [M.O.1]. On comparison, P.W.49 found that the DNA profile of the hair did not match with that of Mohanakrishnan, but, matched  with  that  of  Manoharan.  Her  report  was marked as  Ex.P48(A).  The  defence  counsel  did  not seriously challenge the final opinion of the expert, but Mr.A.Raghunathan,  learned  Senior  Counsel  for  the accused  attacked  the  very  seizure  of  the  hair  and

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contended  that  Manoharan  was  made  to  pluck  5 strands of his pubic hair on 04.11.2010, when he was examined  by  Dr.Jeyasingh  [P.W.46]  and  this  was substituted in the cover that was sent to the Forensic Sciences  Department.  Mr.A.Raghunathan,  learned Senior  Counsel,  who  cross  examined  Dr.Jeyasingh [P.W.46], Mrs.Radhika Balachandran [P.W.48] and the Investigating Officer  [P.W.47]  before  us,  shaped this defence  and  presented  the  following  arguments attacking the seizure of  the panties [M.O.1]  and the pubic hairs from the Maruthi van on 29.10.2010.”

8. Shri  Raghunathan’s  arguments  against  the  pubic  hair  of  the

Appellant being found on the panty of the dead girl was then dealt

with in great detail after which the High Court then summed up the

matter as follows:-

“45. Since we have left incomplete the discussion in Para No.9 supra about “Evidence Relating to Rape of 'X'”, we are now concluding it  after answering to the points  raised  by  Mr.A.Raghunathan  relating  to  the seizure of the panties (M.O.1).  

46. From (a) the final opinion of Dr.Jeyasingh that 'X' was subjected to sexual assault; (b) injury on the penis of Manoharan; (c) the absence of panties in the dead body of 'X'; (d)the presence of panties (M.O.1) in the Maruthi van; (e)identification of the panties (M.O.1) by 'X''s  father;  (f)presence of  hairs  on it  at  the time of recovery  and  (g)matching  of  DNA profile  extracted from the  hair  with  that  of  Manoharan,  we hold  that Manoharan  has  subjected  'X'  to  sexual  assault.  To

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come to this finding also, we have still  not used the judicial confession given by Manoharan.”

9. Having gone through the exhaustive analysis of the High Court

on this aspect, we feel no reasonable ground has been made out by

learned counsel for the Appellant to assail the same and, therefore,

confirm the findings that the Appellant had subjected the girl to sexual

assault.  

10. Learned  counsel  for  the  Appellant,  then  argued  that  the

Learned Magistrate should have refused to record the confessional

statement made on 20.11.2010 given the fact that Appellant had been

beaten by the police. The High Court has dealt with this aspect of the

case by stating that the Ld. Magistrate asked the Appellant repeatedly

as to whether the statement that is being given by him is voluntary or

because of torture or beatings. The Appellant repeatedly stated that

the statement being given was voluntary. Further, the High Court has

also adverted in paragraph 60 of its judgment, to the fact that police

custody ended after the first 15 days of arrest that is on 14.11.2010.

The accused was produced before the Ld. Judicial Magistrate only on

19.11.2010 after  which  statement  was recorded  on  20.11.2010.  It

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was  clear  therefore  that  on  this  date  there  was  no  possibility  of

handing back the Appellant to police custody. Further, the retraction

that was made from the confessional statement was made one year

and nine months after it was made and as can be the seen from the

table  set  out  in  paragraph  70  of  the  impugned  judgment,  the

retraction statement confirms the original confessional statement in

every detail except that the Appellant retracts the part played by him

in the rape and murder of the ten year old girl  and the girl  & boy

respectively. For all these reasons, therefore we reject the arguments

of the Ld. Counsel for the Appellant in this behalf.  

11. The Appellant’s counsel then argued that PW.24 who is a very

material  witness  as  to  the  last  seen  theory  cannot  possibly  be

believed, because in his evidence he states that he saw the children

after the girl was raped standing on the road next to Mohanakrishnan

and the Appellant, and found nothing untoward with the children, who

did not utter a word or show in any manner that they have just gone

through  the  most  gruesome  ordeal.  According  to  him,  PW.24’s

version is,  therefore inherently not believable and cannot be relied

upon.  Even if we were to accept learned counsel’s argument on this

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aspect, we must not forget that for the last seen theory a number of

other persons were relied upon by the High Court.  PW.20, PW.25

and PW.23 all  saw the two accused together  with  the children at

different times on 29.10.2010. Indeed, even if one were to read the

confessional statement of the Appellant together with the retraction

thereof, the fact that he purchased milk at 1.00 p.m. from PW.23 is

clearly made out and the fact that Mohanakrishnan went to meet the

tailor,  was also admitted by him  in  both the original  confessional

statement  as  well  as  the  retraction.   It  is  clear  therefore  that  the

evidence  of  PW.20  and  23  are  corroborated  by  the  confessional

statement and the retraction made by the Appellant and therefore the

factum of the two accused being with the two children in the vehicle is

clearly made out and thus the High Court’s conclusion that the last

seen theory can be relied upon cannot possibly be assailed.  

12. Learned  counsel  for  the  Appellant  then  argued  that  having

raped a girl  in  the morning hours,  it  is  highly improbable that  the

victim  would  be  paraded  around  and  taken  to  so  many  places

including the shop selling milk and cow dung powder, and that the

entire story is so inherently improbable that it should be rejected.  We

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are  afraid  that  this  kind  of  argument  flies  in  the  face  of  the

confessional  statement  made  even  when  read  with  the  retraction

thereof.  All the facts as to Mohanakrishnan abducting the children,

raping the girl and murdering the children are contained in both the

statement as well as the retraction of the Appellant.  It is only in the

retraction that  the Appellant  seeks to exculpate himself  completely

from rape and murder, which, as has rightly been held by the High

Court,  cannot  be given any credence.   This is  also for  the added

reason that once it is accepted that the DNA sample from the pubic

hairs of the Appellant are found in the panty of the dead girl, rape

gets established beyond reasonable doubt.  

13. The argument of the learned counsel for the Appellant that no

semen or blood was found on the body of the dead girl  pales into

insignificance in view of the DNA evidence. In any case, the body of

the dead girl was found in a canal, which had fast flowing water in it,

several  kilometers  away,  after  one  day  of  the  commission  of  the

crime. It is obvious that with this passage of time whatever semen

and blood that may have been on the dead body when the girl was

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thrown into the canal has been effaced by the fast flowing water in

which the body was immersed for a day after it was recovered.

14. Learned counsel then tried to argue that the allegation of tying

up of the children has no evidence to support it.   We are afraid that

this  is  also  not  correct  inasmuch  as  in  both  the  confessional

statement  as  well  as  the  retraction  thereof  it  is  clear  that

Mohanakrishnan at least tied the girl with a rope and then raped her.  

15. The Appellant then argued that the panty was found later in the

car thereby rendering its being found in the car suspect, and that the

panty which is stated to be torn was never so stated in the earlier

statements  made  to  the  police.  What  is  clear  from  the  forensic

examination is that the panty was found in the car only after the car

was searched at 2.00 a.m. on the night after the rape and the murder

as is clear from a reading of exhibit P.5 marked on the side of the

prosecution.  

16. Learned counsel for the Appellant then argued that it is wholly

improbable that the lunch bag of the murdered boy would be taken

home by the accused Appellant and would be found by the police at

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his house two days thereafter. Obviously therefore the aforesaid bag

has been planted by the police.  Even if this is so, this does not take

the Appellant anywhere.  What is clear from a narration of the facts

above is that it  is clear that the children were initially abducted by

Mohanakrishnan after which the Appellant joined them. The fact that

the Appellant brutally raped the 10 year old girl is corroborated not

only by his confessional statement but also by the DNA test which

found the Appellant’s pubic hair on the panty of the girl.  It is clear that

once this heinous act was committed, the next important step would

be for both the accused to do away with the children so that they

would not be able to give evidence as to the kidnapping and rape

committed  on  the  girl.   Towards  this  end,  it  is  admitted  that  the

Appellant purchased “cow dung” powder, that is poison, and milk, and

stated in his confessional statement that the two were then mixed and

administered to both children by both the accused. Since the poison

did  not  work,  the  only  other  way of  doing away with  the children

would be to find some other method, and the method found by the

two accused was to take the children to the canal in question and

throw them into the canal so that they would be dead by drowning.

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The entire chain of events has been made out and despite this being

a case of circumstantial evidence, the prosecution has clearly proved

its  case  beyond  reasonable  doubt.  The  courts  below  are  right  in

convicting the Appellant of rape and murder.  

17. The question that  now arises is whether the death sentence

should be confirmed by this Court.  The Appellant has pleaded that

the mitigating circumstances in the present case are that the accused

belongs to a rural area and he is only 23 years old and has no other

previous conviction, and if let out will not be a menace to society.  On

the other hand, the counsel for the respondent has argued that this is

an extremely heinous crime committed ruthlessly and cold bloodedly

and that the aggravating circumstances made out by the High Court

clearly outweigh the alleged mitigating circumstances and therefore

this is a clear case for the death penalty to be imposed.

18. In  Machhi Singh v. State of Punjab, (1983) 3 SCC 470, this

Court laid down the circumstances in which a death sentence may be

imposed for the crime of murder as follows:-

     “32. The reasons why the community as a whole does not endorse the humanistic approach reflected in

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“death  sentence-in-no-case”  doctrine  are  not  far  to seek. In the first place, the very humanistic edifice is constructed  on  the  foundation  of  “reverence  for  life” principle. When a member of the community violates this  very  principle  by  killing  another  member,  the society may not feel itself bound by the shackles of this doctrine.  Secondly,  it  has  to  be  realized  that  every member of  the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection.  When  ingratitude  is  shown  instead  of gratitude by “killing” a member of the community which protects  the  murderer  himself  from  being  killed,  or when the  community  feels  that  for  the  sake  of  self- preservation the killer has to be killed, the community may well  withdraw the  protection  by sanctioning  the death  penalty.  But  the  community  will  not  do  so  in every case. It may do so “in rarest of rare cases” when its  collective  conscience  is  so  shocked  that  it  will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards  desirability  or  otherwise  of  retaining  death penalty.  The  community  may  entertain  such  a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime,  or  the  anti-social  or  abhorrent  nature  of  the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal,  grotesque,  diabolical,  revolting  or  dastardly manner  so  as  to  arouse  intense  and  extreme indignation of the community. For instance,

32

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture  or  cruelty  in  order  to  bring  about  his  or  her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When  the  murder  is  committed  for  a  motive which  evinces  total  depravity  and  meanness.  For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust,  or (c)  a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime 35. (a) When murder of a member of a Scheduled

Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social  wrath.  For  instance  when  such  a  crime  is committed  in  order  to  terrorize  such  persons  and frighten them into fleeing from a place or in order to deprive  them  of,  or  make  them  surrender,  lands  or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of “bride burning” and what are known as  “dowry  deaths”  or  when  murder  is  committed  in order to remarry for the sake of extracting dowry once again  or  to  marry  another  woman  on  account  of infatuation.

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IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of  a  particular  caste,  community,  or  locality,  are committed.

V. Personality of victim of murder

37. When the  victim of  murder  is  (a)  an innocent child who could not have or has not provided even an excuse,  much  less  a  provocation,  for  murder  (b)  a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust  (d)  when the victim is  a public  figure  generally loved and respected by the community for the services rendered  by  him  and  the  murder  is  committed  for political  or  similar  reasons  other  than  personal reasons.

38. In  this  background  the  guidelines  indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] will have to be culled out and applied to the facts of each individual  case  where  the  question  of  imposing  of death  sentence  arises.  The  following  propositions emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898 : 1980 Cri LJ 636] :

“(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 along with the circumstances of the ‘crime’.

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(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 weightage and a just balance has to be struck between the  aggravating  and  the  mitigating  circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which  renders  sentence  of  imprisonment  for  life inadequate and calls for a death sentence?

(b)  Are  the  circumstances  of  the  crime such  that there is no alternative but to impose death sentence even  after  according  maximum  weightage  to  the mitigating circumstances which speak in favour of the offender?”

In so far as Kashmir Singh, that is one of the appellants before the

Court, in this case was concerned, this Court, applying paragraph 37

(a), upheld the conviction as follows:-

     “44. Insofar as appellant Kashmir Singh s/o Arjan Singh is concerned death sentence has been imposed

35

on him by the Sessions Court and confirmed by the High Court for the following reasons:

Similarly,  Kashmir  Singh  appellant  caused  the death  of  a  child  Balbir  Singh  aged  six  years  while asleep, a poor defenceless life put off by a depraved mind reflecting grave propensity to commit murder.”

It will thus be seen that the fact that the victim of the murder was a

defenceless 6 year old child, was found sufficient to make Kashmir

Singh’s case a rarest of rare case, shocking the Court’s conscience.

19. In Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, this Court

speaking through Dipak Misra, J. and R. Banumathi, J. had occasion

to deal with a large number of judgments, in which, after considering

aggravating  and  mitigating  circumstances,  this  Court  has  either

awarded  the  death  sentence  in  the  case  of  violent  crimes  or  life

imprisonment.  From paragraph 322 of Dipak Misra, J.’s judgment, all

these judgments are set out in great detail and, therefore, need not

be  repeated  by  us.  It  may  only  be  noted  that  in  paragraph  349,

Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220,

was referred to,  in  which rape and murder  of  an 18 year  old  girl

resulted in affirmation of the death sentence by this Court.  Equally, in

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paras 350 and 351, Laxman Naik v. State of Orissa (1994) 3 SCC

381, was referred to where a 7 year old girl was raped by her uncle

and  then  murdered,  also  resulted  in  confirmation  of  the  death

sentence by this Court.  Similar is the case in Bantu v. State of U.P.

(2008) 11 SCC 113 and  Rajendra Pralhadrao Wasnik v. State of

Maharashtra (2012) 4 SCC 37, referred to in paragraphs 353 and

354 of the said judgment.   

20. However, in Akhtar v. State of U.P. (1999) 6 SCC 60, referred

to in paragraph 356, in a similar case of rape and murder of a young

girl,  this Court awarded life imprisonment because the evidence of

witnesses showed that the murder was not committed intentionally

and  with  any  premeditation  as  the  girl  had  been  picked  up  for

committing rape.  Similarly, in State of Maharashtra v. Bharat Fakira

Dhiwar (2002) 1 SCC 622, referred to in paragraph 357, in the case

of a 3 year old girl who was raped and murdered, this Court held that

as the accused had been earlier  acquitted by the High Court,  this

Court refrained from imposing the death penalty in spite of the fact

that  “this  case  is  perilously  near  the  region  of  ‘the  rarest  of  rare

cases’..…”.

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21. Paragraphs 358 to 362 deal with  Vasanta Sampat Dupare v.

State of Maharashtra (2017) 6 SCC 631, in which a minor girl child

was raped and murdered.   The death penalty was confirmed by this

Court.   After  a review petition was then heard in  open Court,  the

death penalty was reconfirmed despite the fact that the accused had,

after  the judgment under  review, completed Bachelors Preparatory

Program  and  had  a  jail  record  without  any  blemish.  What  was

projected  was  that  there  is  a  possibility  of  the  accused  being

reformed and rehabilitated and, therefore, the death sentence should

not be imposed. This Court turned down this argument stating that

the extreme depravity and barbaric manner in which the crime was

committed and the fact that the victim was a helpless girl of 4 years

clearly outweigh the mitigating circumstances resulting in a dismissal

of the review petition.  The Court then went on to confirm the death

sentence on the facts of that case as follows:

“363. Now, we shall focus on the nature of the crime and  manner  in  which  it  has  been  committed.  The submission of Mr Luthra,  learned Senior Counsel,  is that the present case amounts to devastation of social trust  and  completely  destroys  the  collective  balance and  invites  the  indignation  of  the  society.  It  is submitted by him that a crime of this nature creates a

38

fear psychosis and definitely falls in the category of the rarest of rare cases.

364. It  is  necessary to state here that  in  the instant case,  the brutal,  barbaric  and diabolic  nature of  the crime  is  evincible  from  the  acts  committed  by  the accused persons viz. the assault on the informant, PW 1 with iron rod and tearing off his clothes; assaulting the informant and the deceased with hands, kicks and iron rod and robbing them of their personal belongings like debit cards, ring, informant's shoes, etc.; attacking the deceased by forcibly disrobing her and committing violent  sexual  assault  by  all  the  appellants;  their brutish behaviour in having anal sex with the deceased and forcing  her  to  perform oral  sex;  injuries  on  the body  of  the  deceased  by  way  of  bite  marks  (10  in number); and insertion of rod in her private parts that, inter  alia,  caused  perforation  of  her  intestine  which caused sepsis and, ultimately,  led to her death.  The medical  history  of  the  prosecutrix  (as  proved in  the record in Ext. PW-50/A and Ext. PW-50) demonstrates that  the  entire  intestine  of  the  prosecutrix  was perforated  and  splayed  open  due  to  the  repeated insertion of the rod and hands; and the appellants had pulled out the internal organs of the prosecutrix in the most savage and inhuman manner that caused grave injuries  which  ultimately  annihilated  her  life.  As  has been  established,  the  prosecutrix  sustained  various bite  marks  which  were  observed  on  her  face,  lips, jaws, near ear, on the right and left breast, left upper arm,  right  lower  limb,  right  inner  groin,  right  lower thigh, left thigh lateral, left lower anterior and genitals. These acts itself  demonstrate the mental  perversion and  inconceivable  brutality  as  caused  by  the appellants. As further proven, they threw the informant and the deceased victim on the road in a cold winter night. After throwing the informant and the deceased victim, the convicts tried to run the bus over them so

39

that there would be no evidence against them. They made all possible efforts in destroying the evidence by, inter alia, washing the bus and burning the clothes of the deceased and after performing the gruesome act, they divided the loot among themselves.

365. As we have narrated the incident that has been corroborated by the medical evidence, oral testimony and the dying declarations, it is absolutely obvious that the  accused  persons  had  found  an  object  for enjoyment  in  her  and,  as  is  evident,  they  were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and, if we allow ourselves to say, the gross sadistic and beastly instinctual pleasures came to the forefront when they, after  ravishing her,  thought  it  to  be just  a  matter  of routine to throw her along with her friend out of the bus and crush them. The casual manner with which she was  treated  and  the  devilish  manner  in  which  they played  with  her  identity  and  dignity  is  humanly inconceivable. It  sounds like a story from a different world  where  humanity  has  been  treated  with irreverence.  The  appetite  for  sex,  the  hunger  for violence,  the  position  of  the  empowered  and  the attitude of  perversity,  to say the least,  are bound to shock the collective conscience which knows not what to do. It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome bestiality  of  passion ruled the mindset  of the appellants to commit a crime which can summon with immediacy a “tsunami” of shock in the mind of the collective  and  destroy  the  civilised  marrows  of  the milieu in entirety.”

xxx xxx xxx

“512. We are  here  concerned  with  the  award  of  an appropriate sentence in case of brutal gang rape and

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murder of a young lady, involving most gruesome and barbaric act of inserting iron rods in the private parts of the victim. The act was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of  attracting  passengers  and  committing  crime  with them. The victim and her friend were picked up from the Munirka  Bus-stand with  the  mala  fide  intent  of ravishing  and  torturing  her.  The  accused  not  only abducted  the  victim,  but  gang-raped her,  committed unnatural  offence by compelling her for  oral  sex,  bit her lips, cheeks, breast and caused horrifying injuries to her private parts by inserting iron rod which ruptured the vaginal rectum, jejunum and rectum. The diabolical manner  in  which  crime  was  committed  leaves  one startled as to the pervert mental state of the inflictor. On top of it, after having failed to kill her on the spot, by  running the bus over  her,  the victim was thrown half-naked in the wintery night, with grievous injuries.

513. If we look at the aggravating circumstances in the present case, following factors would emerge: (i)  Diabolic  nature  of  the  crime  and  the  manner  of committing crime, as reflected in committing gang rape with the victim; forcing her to perform oral sex, injuries on the body of  the deceased by way of  bite marks; insertion of iron rod in her private parts and causing fatal  injuries  to  her  private  parts  and  other  internal injuries; pulling out her internal organs which caused sepsis  and ultimately  led to  her  death;  throwing the victim and the complainant (PW 1) naked in the cold wintery night and trying to run the bus over them. (ii) The brazenness and coldness with which the acts were committed in the evening hours by picking up the deceased and the victim from a public space, reflects the threat to which the society would be posed to, in case  the  accused  are  not  appropriately  punished. More so, it reflects that there is no scope of reform.

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(iii)  The horrific acts reflecting the inhuman extent to which the accused could go to satisfy their lust, being completely  oblivious,  not  only  to  the  norms  of  the society, but also to the norms of humanity. (iv)  The acts committed so shook the conscience of the society.

514. As  noted  earlier,  on  the  aspect  of  sentencing, seeking  reduction  of  death  sentence  to  life imprisonment,  three  of  the  convicts/appellants, namely, A-3 Akshay, A-4 Vinay and A-5 Pawan placed on record, through their individual affidavits dated 23- 3-2017, following mitigating circumstances: (a)  Family  circumstances  such  as poverty  and rural background,

(b) Young age, (c) Current family situation including age of parents, ill- health  of  family  members  and  their  responsibilities towards their parents and other family members,

(d) Absence of criminal antecedents, (e) Conduct in jail, and

(f) Likelihood of reformation.

In  his  affidavit,  accused Mukesh  reiterated  his innocence  and  only  pleaded  that  he  is  falsely implicated in the case.

515. In Purushottam  Dashrath  Borate v. State  of Maharashtra [Purushottam Dashrath Borate v. State of Maharashtra, (2015) 6 SCC 652 : (2015) 3 SCC (Cri) 326] , this Court held that age of the accused or family background  of  the  accused  or  lack  of  criminal antecedents  cannot  be  said  to  be  the  mitigating circumstance.  It  cannot  also  be  considered  as mitigating  circumstance,  particularly  taking  into consideration, the nature of heinous offence and cold

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and calculated manner in which it was committed by the accused persons.

516. Society's reasonable expectation is that deterrent punishment  commensurate  with  the  gravity  of  the offence  be  awarded.  When  the  crime  is  brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal-justice  system.  As  held  in Om Prakash v. State  of  Haryana [Om Prakash v. State  of Haryana, (1999) 3 SCC 19 : 1999 SCC (Cri) 334] , the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was  an  apparently  abominable  crime.

517. Bearing in  mind the above principles governing the  sentencing  policy,  I  have  considered  all  the aggravating  and  mitigating  circumstances  in  the present case. Imposition of appropriate punishment is the  manner  in  which  the  courts  respond  to  the society's  cry  for  justice  against  the  crime.  Justice demands that the courts should impose punishments befitting the crime so that it reflects public abhorrence of the crime. Crimes like the one before us cannot be looked with magnanimity. Factors like young age of the accused and poor background cannot be said to be mitigating  circumstances.  Likewise,  post-crime remorse and post-crime good conduct of the accused, the statement of the accused as to their background and  family  circumstances,  age,  absence  of  criminal antecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take the case out of the category of “the rarest of rare cases”. The circumstances stated by the accused in their  affidavits  are  too  slender  to  be  treated  as mitigating circumstances.

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518. In the present case, there is not even a hint of hesitation in my mind with respect to the aggravating circumstances  outweighing  the  mitigating circumstances  and  I  do  not  find  any  justification  to convert  the  death  sentence  imposed  by  the  courts below to “life imprisonment for the rest of the life”. The gruesome  offences  were  committed  with  highest viciousness. Human lust was allowed to take such a demonic  form.  The  accused  may  not  be  hardened criminals; but the cruel manner in which the gang rape was  committed  in  the  moving  bus;  iron  rods  were inserted  in  the  private  parts  of  the  victim;  and  the coldness  with  which  both  the  victims  were  thrown naked in cold wintery night of December, shocks the collective conscience of the society. The present case clearly comes within the category of “the rarest of rare cases” where the question of any other punishment is “unquestionably foreclosed”.  If  at  all  there is  a case warranting award of death sentence, it is the present case. If the dreadfulness displayed by the accused in committing the gang rape, unnatural sex, insertion of iron rod in the private parts of the victim does not fall in the  “rarest  of  rare  category”,  then  one may wonder what  else  would  fall  in  that  category.  On  these reasonings recorded by me, I concur with the majority in  affirming  the  death  sentence  awarded  to  the accused persons.”

22. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415,

this Court affirmed the death sentence of the accused in which the

accused  had  killed  six  innocent  persons,  out  of  which  two  were

minors,  by kidnapping three persons,  drugging them with sleeping

tablets, and then pushing them into a canal. Thereafter, three other

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members of the same family were done away with. This Court upheld

the award of capital punishment as follows:-

“14. Now, so far as the capital punishment imposed by the learned Sessions Court and confirmed by the High Court is concerned, at the outset, it is required to be noted that, as such, the learned counsel appearing on behalf of the accused is not in a position to point out any  mitigating  circumstance  which  warrants commutation  of  death  sentence  to  the  life imprisonment.  In the present case, the accused has killed  six  innocent  persons,  out  of  which  two  were minors — below 10 years of age. Almost, all the family members of PW 5 were done to death in a diabolical and  dastardly  manner.  Fortunately,  or  unfortunately, only one person of the family of PW 5 could survive. In the present case, the accused has killed six innocent persons  in  a  pre-planned  manner.  The  convict meticulously  planned  the  time.  He  first  kidnapped three persons by way of deception and took them to the  canal  and  after  drugging  them  with  sleeping tablets, pushed them in the canal at midnight to ensure that the crime is not detected. That, thereafter he killed another three persons in the second stage/instalment. Therefore, considering the law laid down by this Court in Mukesh v. State  (NCT  of  Delhi)[Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] , the case would fall in the category of the “rarest of  rare  case”  warranting  death  sentence/capital punishment.  The  aggravating  circumstances  are  in favour  of  the  prosecution  and  against  the  accused. Therefore, striking a balance between the aggravating and mitigating circumstances,  we are of  the opinion that  the  aggravating  circumstance  would  tilt  the balance in favour of capital punishment. In the facts and circumstances of the case, we are of the opinion that there is no alternative punishment suitable, except

45

the  death  sentence.  The  crime  is  committed  with extremist brutality and the collective conscience of the society would be shocked.  Therefore,  we are of  the opinion  that  the  capital  punishment/death  sentence imposed by the learned Sessions Court and confirmed by the High Court does not warrant any interference by this Court. Therefore, we confirm the death sentence of the accused imposed by the learned Sessions Court and confirmed by the High Court while convicting the appellant for the offence punishable under Section 302 IPC.”

The present case consists of a crime even more shocking than that in

Khushwinder’s case (supra), in as much as a young 10 year old girl

has first  been horribly  gangraped after  which she and her  brother

aged 7 years were done away with while they were conscious by

throwing them into a canal which caused their death by drowning.  

23. Just  as  this  judgment  is  being  dictated,  we  notice  that  a

significant amendment has been made to The Protection of Children

from Sexual  Offences  Act,  2012,  vide “The  Protection  of  Children

from  Sexual  Offences  (Amendment)  Bill,  2019”  (hereinafter,

“Amendment”) which was passed on 24.07.2019 by the Rajya Sabha.

In the original Act, aggravated penetrative sexual assault is defined in

Section 5 as follows:-

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“5. Aggravated penetrative sexual assault.-

g. whoever commits gang penetrative sexual assault on a child.  

Explanation.-  When  a  child  is  subjected  to  sexual assault  by  one  or  more  persons  of  a  group  in furtherance  of  their  common  intention,  each  of  such persons  shall  be  deemed  to  have  committed  gang penetrative  sexual  assault  within  the meaning of  this clause and each of such person shall be liable for that act  in  the  same  manner  as  if  it  were  done  by  him alone;”

“l. whoever commits penetrative sexual assault on the child more than once or repeatedly;

m.  whoever  commits penetrative sexual  assault  on a child below twelve years;”

xxx….xxxx…xxx

“r.  whoever  commits  penetrative  sexual  assault  on  a child and attempts to murder the child;”

Originally, the punishment for aggravated penetrative sexual assault

was as follows:-

“6.  Punishment  for  aggravated  penetrative  sexual assault.-

Whoever,  commits  aggravated  penetrative  sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but

47

which  may  extend  to  imprisonment  for  life  and  shall also be liable to fine.”

Post the Amendment, Section 6 has been substituted as follows:-

"6. (1) Whoever commits aggravated penetrative sexual assault  shall  be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that  person,  and  shall  also  be  liable  to  fine,  or  with death.

(2) The fine imposed under sub-section (1) shall be just and  reasonable  and  paid  to  the  victim  to  meet  the medical expenses and rehabilitation of such victim."

It will be noticed that the minimum sentence has gone up from 10

years to 20 years, and imprisonment for life has now been expressly

stated to be imprisonment for the remainder of the natural life of the

person. What is more significant is that the death penalty has also

been introduced.

24. On  the  facts  of  the  present  case  there  is  no  doubt  that

aggravated penetrative sexual assault was committed on the 10 year

old girl by more than one person. The 10 year old girl child (who was

below 12 years of age) would fall within Section 5 (m) of the POCSO

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Act. There can be no doubt that today’s judgment is in keeping with

the legislature’s realisation that such crimes are on the rise and must

be dealt with severely. In fact, the Statement of Objects and Reasons

of the Amendment are important and state as follows:-

“3.  However,  in  the  recent  past  incidences  of  child sexual abuse cases demonstrating the inhumane mind- set  of  the  abusers,  who  have  been  barbaric  in  their approach towards young victims, is rising in the country. Children  are  becoming  easy  prey  because  of  their tender age, physical vulnerabilities and inexperience of life and society. The unequal balance of power leading to the gruesome act may also detriment the mind of the child to believe that might is right and reported studies establish that children who have been victims of sexual violence in their childhood become more abusive later in their life. The report of the National Crime Records Bureau  for  the  year  2016  indicate  increase  in  the number  of  cases  registered  under  the  said  Act  from 44.7 per cent. in 2013 over 2012 and 178.6 per cent. in 2014 over 2013 and no decline in the number of cases thereafter.  

4. The Supreme Court, in the matter of Machhi Singh vs. State of Punjab [1983 (3) SCC 470], held that when the  community  feels  that  for  the  sake  of  self- preservation the killer has to be killed, the community may  well  withdraw  the  protection  by  sanctioning  the death penalty. But the community will not do so in every case.  It  may do  so  in  rarest  of  rare  cases  when  its collective conscience is so shocked that it  will  expect

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the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The same  analogy  has  been  reiterated  by  the  Supreme Court  in  the matter  of  Devender  Pal  Singh vs.  State (NCT of Delhi) [AIR 2002 SC 1661] wherein it was held that when the collective conscience of the community is so shocked, the court must award death sentence.  

5. In the above backdrop, as there is a strong need to take stringent measures to deter the rising trend of child sex abuse in the country, the proposed amendments to the  said  Act  make  provisions  for  enhancement  of punishments  for  various  offences  so  as  to  deter  the perpetrators and ensure safety,  security  and dignified childhood  for  a  child.  It  also  empowers  the  Central Government to make rules for the manner of deleting or destroying or reporting about pornographic material in any form involving a child to the designated authority”

25. In the circumstances, we have no doubt that the trial court and

High  Court  have  correctly  applied  and  balanced  aggravating

circumstances with  mitigating circumstances to  find that  the crime

committed was cold blooded and involves the rape of a minor girl and

murder  of  two children in  the most  heinous fashion possible.   No

remorse has been shown by the Appellant at all and given the nature

of the crime as stated in paragraph 84 of the High Court’s judgment it

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is  unlikely  that  the Appellant,  if  set  free,  would not  be capable of

committing such a crime yet again.  The fact that the Appellant made

a confessional statement would not, on the facts of this case, mean

that he showed remorse for committing such a heinous crime.  He did

not stand by this confessional statement, but falsely retracted only

those parts of the statement which implicated him of both the rape of

the  young  girl  and  the  murder  of  both  her  and  her  little  brother.

Consequently,  we  confirm  the  death  sentence  and  dismiss  the

appeals.  

………………………………..J.                                              (R.F. NARIMAN)

New Delhi;                                            ….…………………………… J. August 01, 2019.                  (SURYA KANT)

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 1174-1175 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO(S). 7581-7582 OF

2014)

MANOHARAN …..            APPELLANT(S)

VERSUS

STATE BY INSPECTOR OF POLICE,  VARIETY HALL POLICE STATION,  COIMBATORE. …..        RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

There  is  so  much  in  the  comprehensive  judgment  of  my

esteemed  brother  Justice  Rohinton  Fali  Nariman,  with  which  I

entirely  agree.  I  would  uphold  the  appellant’s  conviction  under

Sections  302,  376 (2)  (f)  and (g)  and  201 of  the  Indian Penal

Code,1898 (“IPC” for short).  However, for reasons stated below, I

do not think this is a case wherein the appellant should be given

death penalty and would commute it to imprisonment for life i.e. till

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his natural life with a stipulation that the appellant would not be

entitled to remission under Sections 432 and 433 of the Code of

Criminal Procedure, 1973 (“Cr.P.C” for short).

2. In  Bachan  Singh  v.  State  of  Punjab1,  this  Court,  while

upholding constitutionality  of  death  penalty  for  murder  under

Section 302 of the IPC and the procedure for sentencing laid

down in Section 354(3) of the Cr.P.C., had held:

“209…  A real  and  abiding  concern  for  the dignity  of  human  life  postulates  resistance  to taking  a  life  through  law’s  instrumentality.  That ought not to be done in the rarest of rare cases when  the  alternative  option  is  unquestionably foreclosed.”

Thus,  Bachan Singh (supra),  while  accepting validity  of  the

death penalty, had settled as a ratio that imprisonment for life is

the  normal  and  preferred  punishment  for  the  offences  under

Section 302 of the IPC, and that death penalty, which deprives the

accused of  his  life,  is  an  exception  to  be  imposed only  in  the

‘rarest  of  rare’ cases,  when  the  first  option  of  imposing

imprisonment for life is foreclosed and for which special reasons

must be recorded.

1 (1980) 2 SCC 684

53

3. Recognising  that  the  legislative  policy  underlying  the

provisions of Sections 302 IPC and 354 (3) Cr.P.C. requires

exercise  of  the  court’s  discretion  on  the  award  of

punishment,  Bachan Singh (supra)  had laid  down that  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 weightage and a just

balance has to be struck between the aggravating and the

mitigating  circumstances  for  the  judicial  discretion  to  be

exercised. The expression ‘special reasons’ in the context, it

was  observed,  means  ‘exceptional  reasons’  founded  on

exceptionally  grave  circumstances  of  the  particular  case

relating to the crime and the criminal.

4. On the aspect of mitigating circumstances in general and

on the factual matrix of the case, in Bachan Singh (supra) it

was observed:

“206. Dr. Chitaley has suggested these mitigating factors:  

54

Mitigating circumstances:  -  In the exercise of  its discretion in the above cases, the court shall take into account the following circumstances:  

(1)  That  the  offence  was  committed  under  the influence  of  extreme  mental  or  emotional disturbance.  

(2)  The  age  of  the  accused.  If  the  accused  is young or old, he shall not be sentenced to death.  

(3)  The  probability  that  the  accused  would  not commit  criminal  acts  of  violence  as  would constitute a continuing threat to society.  

(4)  The  probability  that  the  accused  can  be reformed and rehabilitated.

The  State  shall  by  evidence  prove  that  the accused does not satisfy the conditions 3 and 4 above.  

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.  

(6)  That  the accused acted under the duress or domination of another person.  

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”  

Bachan Singh (supra) in the aforesaid paragraph highlights

the  aspect  of  probability  of  reform  and  rehabilitation,  and  also

probability that the accused would not commit criminal acts as to

55

constitute a continuing threat to society and that the State must by

evidence  adduced  establish  that  conditions  3  and  4  are  not

satisfied.

5. In Machhi  Singh  v. State  of  Punjab2, this  Court

elucidated that from the tussle between the protagonists of “an

eye for an eye” philosophy who demand “death for death” on

one hand and the “humanists” who press for “death in no case”,

a synthesis had emerged for imposing a death sentence only in

the  ‘rarest of rare’  cases. Judgment referred to the collective

conscience  of  the  community  which is  so  shocked from the

crime that had occurred that it will expect the holders of judicial

office  to  inflict  death  penalty  irrespective  of  their  personal

opinion  on  the  desirability  or  otherwise  of  retaining  death

penalty. The community it was observed may entertain these

sentiments in the following circumstances: -

(1). When the murder is committed in an extremely brutal, grotesque,

diabolical, revolting or dastardly manner so as to arouse intense and

extreme indignation of the community.

2 (1983) 3 SCC 470

56

(2). When the murder is committed for a motive which evinces total

depravity and meanness; e.g. murder by hired assassin for money or

reward  or  a  cold-blooded  murder  for  gains  of  a  person  vis-à-vis

whom the murderer is in a dominating position or in a position of

trust,  or  murder  is  committed  in  the  course  for  betrayal  of  the

motherland.

(3).  When murder of  a member of  a Scheduled Caste or minority

community,  etc.  is  committed  not  for  personal  reasons  but  in

circumstances  which  arouse  social  wrath,  or  in  cases  of  ‘bride

burning’ or ‘dowry deaths’ or when murder is committed in order to

remarry  for  the  sake  of  extracting  dowry  once again  or  to  marry

another woman on account of infatuation.

(4). When the crime is enormous in proportion. For instance, when

multiple murders, say of all or almost all the members of a family or a

large number of persons of a particular caste, community, or locality,

are committed.

(5). When the victim of murder is an innocent child, or a helpless

woman or an old or infirm person or a person vis-à-vis whom the

murderer is in a dominating position or a public figure generally loved

and respected by the community.

57

If upon taking an overall global view of all the circumstances in

the light  of  the aforesaid propositions and taking into account the

answers to the questions posed by way of the test for the ‘rarest of

rare’ cases,  the  circumstances  of  the  case  are  such  that  death

sentence is warranted, the court would proceed to do so.

6. Machhi  Singh (supra)  analysing  the  principles  in

Bachan Singh (supra) observed that they  postulate a twin

question test which is required to be answered by the Court

when they exercise discretion to determine the ‘rarest of rare’

cases. The questions that must be put and answered are:

(a)  Whether there was something uncommon about the

crime, which renders the sentence of imprisonment

for life inadequate and calls for death sentence?

(b)  Whether there were other circumstances concerning

the crime,  i.e.  aggravating circumstances,  because

of  which there is  no  alternative  but  to  impose the

death  sentence  after  having  accorded  maximum

58

weightage  to  all  mitigating  circumstances  which

speak in favour of the offender?

7. The circumstances elucidated in Machhi Singh (supra),

if carefully analysed, relate to the first question to be posed

and answered. But this is not the only question that the court

must  answer,  for  the  second  question  has  to  be  also

answered  in  order  to  direct  or  uphold  the  death  penalty.

Second  question  can  be  answered  with  reference  to  the

grounds quoted from Bachan Singh (supra) in paragraph 3

above.  These  grounds  relating  to  mitigating  factors  are

however not exhaustive.  

8. In Rajesh Kumar v.  State through the Government of

NCT  of  Delhi3, this  Court  had  traced  out  case  laws  for

evaluation  of  the  sentencing  structure  with  reference  to  the

aggravating and mitigating circumstances in the Indian context.

Elucidating  that  the  question  of  sentence  is  not  to  be

determined  only  with  reference  to  the  volume,  nature  or

character of the evidence produced by the prosecution in order

3 (2011) 13 SCC 706

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to secure a conviction, but also with regard to the facts of a

particular case and the existence of extenuating circumstances

that  can  mitigate  the  enormity  of  the  crime,  reference  was

made to Vadivelu Thevar  and Anr.  v.  State of Madras4, a

judgment  delivered  in  1955  under  the  Code  of  Criminal

Procedure, 1898.  Volume and character of the evidence would

refer to the first question, while the extenuating circumstances

in current trends in penology and sentencing procedures would

refer to the second question. It is also obvious that not only the

statutory  provisions  have  undergone  a  substantive  change,

there has been an evolution in the law of sentencing and the

judicial interpretation on the principles applicable for award of

the death  penalty.  Rajesh Kumar  (supra)  clearly  rejects  the

theory that while inflicting the punishment of death penalty, only

the  nature  and  gravity  of  the  crime  to  the  exclusion  of  the

characteristics  of  the criminal  are  germane for  consideration

and  imposition  of  an  appropriate  punishment.  Thus,  while

awarding  the  sentence,  the  Court  should  not  confine  its

consideration “principally or merely” to the circumstances of a

4 AIR 1957 SC 614

60

particular crime, but also give due consideration and regard to

the  circumstances  and  attributes  of  the  criminal.  An  earlier

judgment of this Court in Ravji alias Ram Chandra v. State of

Rajasthan5, which was followed by at least six other decisions

of this Court, holding that it is the nature of the crime but not

the criminal that are germane for consideration of appropriate

punishment was commented upon and held to be per incurium.

Referring to the mitigating circumstances and the aggravating

circumstances, the Court held that the brutality and cruelty in

the manner of committing a crime and the subsequent conduct

of  the criminal  may be a relevant  factor,  but  is  not  the sole

criteria  for  awarding death  sentence and must  not  seminally

influence  the  court.  Alluding  to  the  mitigating  circumstances

stated  in  ‘3  and  4’  of  ‘paragraph  206’  of  the  judgment  in

Bachan Singh (supra) quoted above, on the probability of the

accused  being  reformed  and  rehabilitated  and  of  not

committing  criminal  acts  of  violence  so  as  to  constitute  a

continuing threat to the society, were held, must be given due

weightage  in  determining  the  appropriate  sentence.  There

5 (1996) 2 SCC 175

61

should be some disapprobatory evidence and material to show

that the accused is incapable of being reformed or rehabilitated

in  the  society.   The  dictum  was  expressed  in  the  following

words:  

“74.  It  is  clear  from the  aforesaid  finding  of  the High Court that there is no evidence to show that the  accused  is  incapable  of  being  reformed  or rehabilitated  in  society  and  the  High  Court  has considered the same as a neutral circumstance. In our view the High Court was clearly in error. The very fact that the accused can be rehabilitated in society  and is  capable  of  being  reformed,  since the  State  has  not  given  any  evidence  to  the contrary, is certainly a mitigating circumstance and which  the  High  Court  has  failed  to  take  into consideration.  The High Court  has also failed to take into consideration that the appellant is not a continuing threat to society in the absence of any evidence to the contrary. Therefore, in paragraph 78 of the impugned judgment, the High Court, with respect,  has taken a very narrow and a myopic view  of  the  mitigating  circumstances  about  the appellant. The High Court has only considered that the appellant is a first-time offender and he has a family to look after. We are, therefore, constrained to observe that the High Court’s view of mitigating circumstance has been very truncated and narrow in so far as the appellant is concerned.”

9. In an earlier decision in Santosh Kumar Satishbhushan

Bariyar  v. State of  Maharashtra6,  it  was observed that  the

6 (2009) 6 SCC 498

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‘rarest of rare’ dictum breathes life into the ‘special  reasons’

which are mandated to be recorded under Section 354(3) of the

Cr.P.C. In this regard, referring to  Bachan Singh  (supra), the

Court had emphasised the aforesaid principles rest on a real

and  abiding  concern  for  the  dignity  of  human  life  which

postulates resistance to the taking away of a life through the

instrumentality of laws, and that death ought not to be awarded

save  in  the  ‘rarest  of  rare’ cases  and  when  the  alternative

option is incontrovertibly foreclosed.   

10. The expression ‘rarest of rare’ literally means rarest even

in  the  rare,  i.e.  a  rarest  case  of  an  extreme  nature.  The

expression and the choice of words, means that punishment

by death is an extremely narrow and confined rare exception.

The normal, if not an unexceptional rule, is punishment for life,

which rule can be trimmed and upended only when the award

of sentence for life is unquestionably foreclosed. Thus, capital

punishment  is  awarded  and  invoked  only  if  the  facts  and

material  produced  by  the  prosecution  disdainfully  and  fully

establish that  the option of  imprisonment  for  life will  not  be

63

suffice and is wholly disproportionate and therefore the case

belongs to the ‘rarest of rare’ category.  

11. On  the  question  of  deterrent  effect  of  punishment,  in

Santosh  Kumar  (supra)  reference  was  made  to  Swamy

Shraddananda  @  Murali  Manohar  Mishra  v.  State  of

Karnataka7 (Swamy Shraddananda-I) and some other studies

to observe that:

“164.  The  issue  of  deterrence  has  also  been discussed  in  the  judgment  of  Swamy Shraddananda - I (supra), thus:

"68.  It  is  noteworthy  to  mention  here  the  Law Commission in its Report  of  1967 took the view that  capital  punishment  acted  as  a  deterrent  to crime.  While  it  conceded  that  statistics  did  not prove these so-called deterrent effects, it also said that figures did not disprove them either."

Most  research  on  this  issue  shows  that  the relationship  between  deterrence  and  severity  of punishment is complicated. It is not obvious how deterrence  relates  to  severity  and  certainty. Furthermore criminal policy must be evidence-led rather  than  based  on  intuitions,  which  research around the world has shown too often to be wrong. In  the  absence  of  any  significant  empirical attention to this question by Indian criminologists, we  cannot assume  that  severity  of  punishment correlates  to  deterrence  to  an  extent  which justifies  the  restriction  of  the  most  fundamental

7 (2007) 12 SCC 288

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human right  through the imposition of  the death penalty.  The  goal  of  crime  reduction  can  be achieved by better police and prosecution service to the same or at least to a great extent than by the imposition of the death penalty.”

It was also observed that:

“72. We must also point out, in this context, that there is no consensus in the Court on the use of "social  necessity"  as a sole justification in death punishment  matters.  The  test  which  emanates from  Bachan Singh  (supra) in clear terms is that the  courts  must  engage  in  an  analysis  of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration.  A  dispassionate  analysis,  on  the aforementioned  counts,  is  a  must.  The  courts while adjudging on life and death must ensure that rigor  and  fairness  are  given  primacy  over sentiments and emotions.”

12. In  Santosh  Kumar  (supra)  reference  was  made  to

Panchhi  and  others  v.   State  of  Uttar  Pradesh8 and

Vashram Narshibhai Rajpara v. State of Gujarat9 to state that

the brutality of the manner in which the crime was committed

may not be the sole ground for judging whether the case is one

of the ‘rarest of rare’. Every murder is perceived brutal and for

murder  to  be  treated  as  the  ‘rarest  of  rare’  case,  additional

8 (1998) 7 SCC 177 9 (2002) 9 SCC 168

65

factors  required  to  be  considered  are  the  mitigating  and

aggravating circumstances featuring around the murder, which

would include the intensity of bitterness that had prevailed and

the escalation of simmering thoughts into a thirst for revenge or

retaliation.  Reference was made to  Om Prakash  v.  State of

Haryana10 , to hold:

“76.  In  Om  Prakash  v.  State  of  Haryana,  K.T. Thomas,  J.  deliberated  on  the  apparent  tension between  responding  to  "cry  of  the  society"  and meeting the Bachan Singh dictum of balancing the "mitigating  and  aggravating  circumstances".  The court was of the view that the sentencing court is bound by Bachan Singh and not in specific terms to the incoherent and fluid responses of society:

7. It is true that court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true  that  a  large  number  of  criminals  go unpunished  thereby  increasing  criminals  in  the society and law losing its deterrent effect. It is also a truism as observed in the case of State of M.P. v.  Shyamsunder  Trivedi that  the  exaggerated adherence  to  and  insistence  upon  the establishment  of  proof  beyond every  reasonable doubt,  by  the  prosecution,  ignoring  the  ground realities,  the  fact  situation  and  the  peculiar circumstances  of  a  given  case  often  results  in miscarriage  of  justice  and  makes  the  justice delivery system a suspect; in the ultimate analysis, the  society  suffers  and  a  criminal  gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are

10 (1999) 3 SCC 19

66

forgotten.  Despite this  it  should be kept  in  mind that while imposing the rarest of rare punishment, i.e.,  death  penalty,  the  court  must  balance  the mitigating  and  aggravating  circumstances  of  the crime  and  it  would  depend  upon  particular  and peculiar facts and circumstances of each case."

13. Constitutional  Bench  in  Union  of  India v.  V.  Sriharan

alias  Murugan  and  Others11 had  examined  several

questions/issues.  On  interpreting  Sections  53  and  45  IPC it

was held that the imprisonment of life means imprisonment till

the end of life of the convict. However, appropriate government

in exercise of power under Sections 432 and 433 Cr.P.C. can

grant remission in the form of commutation. Life convict can be

also validly  granted remission etc.  by  the President  and the

Governor of the State as provided under Articles 72 and 161 of

the  Constitution.  The  majority  judgment  authored  by  Mohd.

Ibrahim  Kalifulla,  J.  answered  in  affirmative  the  question

“whether a special category of sentence can be considered in

substitute to death penalty for imposing sentence for life, i.e.

‘entirety of life’,” which can be the full life term or a specified

term exceeding 14 years without remission under Sections 432

11 (2016) 7 SCC 191

67

and 433 Cr.P.C., observing that the earlier decision in Swamy

Shraddananda  (2)  v.  State  of  Karnataka12 [Swamy

Shraddananda  (2)],  accepting  the  said  view   was  a  well

thought out one. The majority in V. Sriharan (supra) observed:

“68. If one were to judge the case of the said appellant in the above background of details from the standpoint of the victim's side, it can be said without  any  hesitation  that  one  would  have unhesitatingly imposed the death sentence.  That may be called as the human reaction of anyone who is affected by the conduct of  the convict  of such a ghastly crime. That may even be called as the  reaction  or  reflection  in  the  common  man's point of view. But in an organised society where the Rule of  Law prevails,  for every conduct of  a human being,  right  or  wrong,  there is a well-set methodology followed based on time tested, well- thought  out  principles of  law either  to reward or punish anyone, which were crystallised from time immemorial  by  taking  into  account  very  many factors, such as the person concerned, his or her past  conduct,  the background in which one was brought up, the educational and knowledge base, the surroundings in which one was brought up, the societal  background,  the  wherewithal,  the circumstances that prevailed at the time when any act  was committed or  carried  out  whether  there was  any  pre-plan  prevalent,  whether  it  was  an individual action or personal action or happened at the  instance  of  anybody  else  or  such  action happened to occur unknowingly, so on so forth. It is  for  this  reason,  we  find  that  the  criminal  law jurisprudence was developed by setting forth very many  ingredients  while  describing  the  various crimes,  and  by  providing  different  kinds  of

12 (2008) 13 SCC 767  

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punishment and even relating to such punishment different  degrees,  in  order  to  ensure  that  the crimes alleged are befitting the nature and extent of  commission  of  such  crimes  and  the punishments  to  be  imposed  meets  with  the requirement or the gravity of the crime committed.

69. Keeping the above perception of the Rule of  Law  and  the  settled  principle  of  criminal  law jurisprudence, this Court expressed its concern as to in what manner even while let loose of the said appellant of the capital punishment of death also felt that any scope of the appellant being let out after  14  years  of  imprisonment  by  applying  the concept  of  remission  being  granted  would  not meet the ends of justice. With that view, this Court expressed  its  well-thought  out  reasoning  for adopting  a  course  whereby  such  heartless, hardened,  money-minded,  lecherous,  paid assassins though are not meted out with the death penalty are in any case allowed to live their life but at  the  same  time  the  common  man  and  the vulnerable lot are protected from their evil designs and treacherous behaviour.…”

14. Judgment in  Santosh Kumar (supra) under the heading

‘Equal Protection Clause’ refers to Swamy Shraddananda (2)

(supra) in  which  the  Court  had  noted  and  recorded  with

extraordinary candour the “arbitrariness prevailing in the capital

sentencing process” in the following words:

"48.  ....  Coupled  with  the  deficiency  of  the criminal justice system is the lack of consistency in the sentencing process even by this  Court.  It  is noted  above  that  Bachan  Singh laid  down  the principle of the rarest of rare cases. Machhi Singh,

69

for  practical  application  crystallised  the  principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for  imposing  death  penalty.  But  the  unfortunate reality is that in later decisions neither the rarest of rare  cases  principle  nor  the  Machhi  Singh categories  were  followed  uniformly  and consistently.  

In Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230 :  (2008) 2 SCC (Cri)  264 :  (2006)  13 Scale  467]  Sinha,  J.  gave  some  very  good illustrations from a number of recent decisions in which  on  similar  facts  this  Court  took  contrary views on giving death penalty to the convict (see SCC pp. 279-87, paras 151-78 : Scale pp. 504-10, paras  154-82).  He  finally  observed  (SCC  para 158) that “courts in the matter of  sentencing act differently although the fact situation may appear to be somewhat similar” and further “it is evident that different Benches had taken different view in the matter” (SCC para 168). Katju, J. in his order passed in this appeal said that he did not agree with  the decision in Aloke Nath Dutta [(2007)  12 SCC 230 :  (2008) 2 SCC (Cri)  264 :  (2006)  13 Scale 467] in that it held that death sentence was not  to  be  awarded  in  a  case  of  circumstantial evidence. Katju, J. may be right that there cannot be an absolute rule excluding death sentence in all cases of circumstantial evidence (though in Aloke Nath Dutta [(2007) 12 SCC 230 :  (2008) 2 SCC (Cri)  264  :  (2006)  13  Scale  467]  it  is  said “normally” and not as an absolute rule). But there is  no denying the illustrations cited by Sinha,  J. which are a matter of fact.

50. The  same  point  is  made  in  far  greater detail in a report called “Lethal Lottery, The Death Penalty  in  India”  compiled  jointly  by  Amnesty International  India  and  People's  Union  for  Civil Liberties, Tamil Nadu & Puducherry. The report is

70

based  on  the  study  of  the  Supreme  Court judgments  in  death  penalty  cases  from 1950 to 2006. One of the main points made in the report (see Chapters 2 to 4) is about the Court's lack of uniformity  and  consistency  in  awarding  death sentence.

51. The truth of the matter is that the question of  death  penalty  is  not  free  from the  subjective element and the confirmation of death sentence or its  commutation  by  this  Court  depends  a  good deal  on  the  personal  predilection  of  the  judges constituting the bench.

52. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results.  On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by  this  Court  and on  the  other  hand there  is  a much wider area of  cases in which the offender committing  murder  of  a  similar  or  a  far  more revolting  kind  is  spared  his  life  due  to  lack  of consistency by the Court in giving punishments or worse  the  offender  is  allowed  to  slip  away unpunished on account of the deficiencies in the Criminal  Justice System.  Thus the overall  larger picture  gets  asymmetric  and  lop-sided  and presents a poor reflection of the system of criminal administration of justice. This situation is matter of concern for this Court and needs to be remedied.

53. These are some of the larger issues that make  us  feel  reluctant  in  confirming  the  death sentence of the appellant.”

71

15. In V. Sriharan (supra), the majority judgment referring to

the  above  criticism,  while  fully  endorsing  the  anguish,  had

observed  that  the  situation  on  the  lack  of  uniformity  and

inconsistency in awarding death sentence and its ill effects is of

serious  concern.  Thereafter  it  was  noted  that  this  Court  in

several cases had imposed imprisonment till life or for a fixed

term exceeding 14 years without remission as a middle path

where life sentence means a person’s life span in incarceration,

rather than get nudged into endorsing the death penalty. The

Court would not violate the law by giving the aforesaid direction

by imposing life imprisonment with the stipulation by restraint or

limit to grant of remission by way of statutory executive action.

16. Thus, the majority judgment approved the ratio in Swamy

Shraddananda (2)  (supra) that there can be special category

of sentence where the Court could specify that the life sentence

would exceed 14 years and would be beyond application for

remission.   Earlier  judgment  of  this  Court  in  Sangeet  and

Another v. State of Haryana13 that the Court cannot proscribe

13 (2013) 2 SCC 452

72

power of remission of the appropriate Government by awarding

sentences  of  20-25  years,  was  over-ruled.  The  majority,

however clarified, that such directions in the judgment would

not  in  any  manner  restrict  the  right  to  claim  remission,

commutation, clemency etc. as provided under Article 72 and

Article 161 of the Constitution.  

17. A three judges bench in their decision dated 14th February

2019 in Review Petition (Criminal)  No.  308/2011 in  Criminal

Appeal No. 379/2009 in  M.D. Mannan @ Abdul Mannan  v.

State of Bihar, while allowing the Review Petition, commuted

the  death  sentence  with  the  direction  that  considering  the

heinous nature of the crime committed, the petitioner therein

must undergo imprisonment for life, that is till his natural death

and  no  remission  of  sentence  would  be  granted. In  Md.

Mannan (supra)  after  referring  to  several  cases  including

Dagdu and Others v. State of Maharashtra14 and Mohinder

Singh v.  State of Punjab15,   on the doctrine of  ‘rarest of rare’

and its application, it was held:

14 (1977) 3 SCC 68 15 (2013) 3 SCC 294

73

“22.  The doctrine of  ‘rarest  of  rare’ confines two aspects and when both the aspects are satisfied only  then  the  death  penalty  can  be  imposed. Firstly, the case must clearly fall within the ambit of ‘rarest of rare’ and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh suggested selection of  death punishment  as  the penalty of last resort when, alternative punishment of  life  imprisonment  will  be futile  and serves no purpose.”

18. In  Santosh Kumar  (supra), reference was made to the

48th Report  of  the  Law  Commission  and  the  importance  of

information relating to the characteristics and socio-economic

background  of  the  offender  which  should  be  collected  and

brought to the notice of the Court.  

19. In Mulla v. State of Uttar Pradesh16, it was held that the

socio-economic factors relating to the crime and the criminal

should be taken into consideration, in the following words:  

"80. Another factor which unfortunately has been left  out  in  much  judicial  decision-making  in sentencing is the social-economic factors leading to crime. We at no stage suggest that economic depravity  justify  moral  depravity,  but  we certainly recognize that in the real world, such factors may lead a person to  crime.  The 48th Report  of  the Law  Commission  also  reflected  this  concern. Therefore,  we  believe,  socio-economic  factors

16 (2010) 3 SCC 508

74

might  not  dilute  guilt,  but  they  may  amount  to mitigating  factor  i.e.  the  ability  of  the  guilty  to reform.  It  may  not  be  misplaced  to  note  that  a criminal who commits crimes due to his economic backwardness is most likely to reform. This Court on  many  previous  occasions  has  held  that  his ability to reform amounts to a mitigating factor in cases of death penalty.

81. In the present case, the convicts belong to an extremely  poor  background.  With  lack  of knowledge, on the background of the appellants, we may not be certain as to their  past,  but one thing  which  is  clear  to  us  is  that  they  have committed  these  heinous  crimes  for  want  of money.  Though we are shocked by their  deeds, we find no reason why they cannot be reformed over a period of time."

The  socio-economic  characteristics  of  the  criminal

assume relevancy in light of administration of criminal justice

and particularly of capital punishment, with regard to which the

Law Commission, in its 262nd Report, had made the following

observations:

“7.1.6  Numerous  committees  reports  as  well  as judgments of the Supreme Court have recognized that  the  administration  of  criminal  justice  in  the country  is  in  deep  crisis.  Lack  of  resources, outdated  modes  of  investigation,  over-stretched police force, ineffective prosecution, and poor legal aid  are  some  of  the  problems  besetting  the system. Death penalty operates within this context

75

and therefore suffers from the same structural and systemic  impediments.  The  administration  of capital  punishment  thus  remains  fallible  and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack  the  resources  to  effectively  advocate  their rights  within  an  adversarial  criminal  justice system.”

20. When we come to the facts of the present case, one has

to but agree that the offence or the crime was brutal, ruthless

and cruel as two innocent children aged 7 to 10 lost their lives,

and there is substantial  medical and other evidence to show

that the young girl was mercilessly sexually abused and raped

by  the  appellant  and  Mohanakrishnan  (since  deceased).

Thereafter the children were administered poison and thrown

into a canal to die.  The pain and trauma suffered by the small

children who were not at fault and the agony of the parents and

grandmother  are  immense,  incalculable  and  would  remain

forever. The punishment must be severe. Yet to award death

penalty we must examine and answer the second question, i.e.

balance out the aggravating circumstances by giving weightage

to  the  mitigating  circumstances  and  decide  whether

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punishment of life imprisonment is foreclosed. Then and then

alone the case would fall  under the  ‘rarest of rare’ category.

While doing so, we should account for the majority dictum in V.

Sriharan (supra) that where life imprisonment is considered to

be disproportionate or inadequate, then the Court may direct

sentence for life imprisonment, without any right to remission

i.e. imprisonment for the entire course of life with no recourse

to remission, subject to the power that may be exercised under

Article 72 and 161 of the Constitution.

21. In  Md.  Mannan  @ Abdul  Mannan  (supra)  there  is  a

detailed reference to case law on whether death penalty should

be  awarded  in  cases  where  prosecution  had  succeeded  in

proving  the  guilt  beyond  a  reasonable  doubt  by  leading

circumstantial evidence.  Reference was made to the judgment

of this Court in Ram Deo Prasad v. State of Bihar17 which had

made  reference  to  earlier  judgments  in  Santosh  Kumar

(supra)  and  Ramesh  and  Others (supra)  to  observe  that

quality of evidence was also a relevant factor in considering the

17 (2013) 7 SCC 725

77

question of death sentence. Judgment under challenge before

us has quoted from The Collector of Customs, Madras and

Others v. D. Bhoormall18 to following effect: -

“30. ……. One of them is that the prosecution or the Department is not required to prove its case with  mathematical  precision  to  a  demonstrable degree; for, in all human affairs absolute certainty is a myth, and-as Prof. Brett felicitously puts it “all exactness is a fake”. El Dorado of absolute proof being  unattainable,  the  law  accepts  for  it probability as a working substitute in this work-a- day  world.  The  law  does  not  require  the prosecution  to  prove  the  impossible.   All  that  it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue.  Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man’s estimate as to the probabilities of the case.”    

 22. In  the  present  case  the  principle  applicable  to  cases

based  on  circumstantial  evidence  is  not  required  to  be

examined  and  answered,  but  I  would  like  to  make  some

comments on the evidence that should be excluded. This would

reveal  the  true  importance  and significance  of  the  voluntary

confession made by the appellant.   

18 (1974) 2 SCC 544

78

23. On the factual matrix of the present case, the High Court

had discarded and did not rely upon the testimonies of Kamala

Bai (PW-9), Vijayranganathan (PW-12), C. Manikandan (PW-

13),  Jayakumar  (PW-14)  and  Afsal  (PW-16)  (I  have  some

reservation on the High Court disregarding and not taking into

consideration  the  testimony  of  Kamala  Bai  (PW-9),

grandmother of the victims.  However, for the purpose of the

present judgment I  need not go into the said aspect  as her

deposition would not directly implicate the appellant before us –

Manoharan).   We have also not  accepted R. Sounderrajan’s

(PW-24)  version that  he had seen Appellant-Manoharan and

Mohanakrishnan  (since  deceased)  with  the  two  children  at

about 3 p.m. on 29.10.2010. The testimony of R. Sounderrajan

(PW-24) to this extent as a chance witness is debatable and

questionable. R. Sounderrajan (PW-24) also claims, and to this

extent we have no doubt, that R. Sounderrajan (PW-24) had

seen a school bag floating in the nearby canal (and another

bag in the vicinity) which he took out and thereafter had handed

over  the  bags  to  Chinnaswamy  (PW-22)  who  had  then

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telephoned the school principal Anthony Raj  (PW-16). Anthony

Raj (PW-16) had then informed Chinnaswamy (PW-22) that the

two children, to whom the school bags belonged, were missing.

R. Sounderrajan (PW-24)  did not  tell  Chinnaswamy (PW-22)

and neither was Anthony Raj (PW-16) informed and told about

the  chance  meeting  between  R.  Sounderrajan  (PW-24)  and

Appellant-Manoharan  and  Mohanakrishnan  (since  deceased)

at  about  3:00  p.m.  on  29.10.2010  and  the  conversation

amongst the three, in which the appellant and Mohanakrishnan

(since deceased) had stated that they were taking the children

for a picnic to Gurumurthi Hill.  

24. I have some reservation on whether the hair was found

attached or inside the pink underwear (Exhibit M.O-1) found in

the van by Saravanan (PW-43), Assistant Director of the Mobile

Unit  of  the  Tamil  Nadu  Forensic  Science  Department.   The

Mahazar (Exhibit P-5) prepared by him and the Investigating

Officer Kanagasabapathy (PW-47) does not specifically state

that the hair found was stuck on the underwear. On the other

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hand, it refers to “hair gathered” as is apparent from column 5

and 7 of the Mahazar (Exhibit P-5) which reads: -

“From whom was it seized Produced from the Maruti Van TN37 BF-2796 after search by Forensic Science Expert, which car was used  by  Accused  Mohanakrishnan  to  kidnap Muskan and Rithik”

“Details of property seized With words SBT Kida Wear 75cms” printed pink Jatti  with stains and hair gathered and entrusted after  keeping inside Angel  Form Brassieres card board box.”

25. However, in the report (Exhibit P-38) prepared by PW-43

which was then sent to the Investigating Officer (PW-47), for

subsequent  forensic  examination,  the  underwear  was  found

stuck with hair. Exhibit P-38 records: -   

“a) A Pink coloured panty printed letters “SBT Kids wear”  “75cms”  with  pale  brownish  starchy  like stains with small  hair  pieces on its inner surface was found beneath  the  back  seat  of  the  vehicle was identified, collected. The place where the hair pieces  were seen were marked and pasted with cellphone tape in order to safety transport the vital cue  materials  for  comprehensive  Forensic analysis.”

26. Radhika  Balachandran  (PW-48)  Deputy  Director,

Regional  Forensic  Science  Laboratory,  Coimbatore  has

81

deposed  that  5  strands  of  hair  were  sent  for  forensic

examination. However, only two strands of hair were sent by

PW-48 for DNA comparison to Lakshmi Balasubramanian (PW-

49),  Deputy  Director,  DNA  Division,  Forensic  Science

Department, Chennai. These two hairs strands, as per the DNA

report were of the Appellant-Manoharan.  

27. Radhika Balachandran (PW-48)  in  her  report  (Exhibit-P

48) has opined that the hair strands were human pubic hair.

However, in her cross-examination before the High Court (this

witness was not examined in the trial court and the report was

taken on record under Section 293 of the Cr.P.C.) in response

to Court Question, PW-48 had stated:

“Court Question: What did you observe in the five strands of hair found in item [8]? A: They all were dark brown in colour, medullated four were with shrunken root of which only two had thin  layer  of  tissue and the ends of  the strands were found tapering.

Court  Question: Can pubic hairs fall  of  with root during     rubbing? A: Pubic hairs can fall of on rubbing if they are in the stag being shrunk and falling of naturally.

Court Question: Pubic hairs can also plucked with roots?

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A: Yes.”

28. Modi’s Textbook of Medical Jurisprudence and Toxicology

26th Edition  at  page  427  in  table  13  has  referred  to

characteristics of human hair from various body parts.  Pubic

hair is between 1-5 cm often curly and kinky, large by variation

along length, round or frayed relatively broad and irregular. Hair

in the Axilla region is also 1-5 cm broad, round and frayed and

is often circular. Further scalp hair have tampered tips, whereas

pubic hair have round or frayed tips. As per PW-48, the ends of

the strands were found tampered.  

29. I would accept the prosecution case that hair belonging to

Appellant-Manoharan  was found  in  the  van  but  the  forensic

report that this was the pubic hair of the Appellant-Manoharan

would be debatable. It  would be also debatable whether the

hair  was  found  stuck/attached  on  the  underwear  (M.O.  -1)

which belonged to the deceased girl.  Inspite of the aforesaid

reservation,  I  have  no  hesitation  in  accepting  that  the

prosecution case has been proved beyond doubt and for this

83

would  also rely  on the confessional  statement  made by the

appellant before the Magistrate under Section 164 Cr.P.C. The

contention that the confession should not be relied upon has

been rightly rejected. In the avowal recorded on 20 th November

2010,  twenty  days  after  the  arrest  of  the  appellant  on  30 th

October  2010,  the  appellant  was  candid  and  forthcoming  in

accepting  his  friendship  with  Mohanakrishnan  (since

deceased), and that the girl  was subjected to sexual assault

and was raped by Mohanakrishnan (since deceased) on the

rear seat of the van by tying her hands. The appellant, realising

that the boy would be unnerved and fret, had taken him away.

On  return,  the  appellant  too  had  sexually  assaulted  the

helpless girl and committed rape. Subsequently, he had bought

milk  from  the  bakery  and  the  two  children  were  given  milk

mixed with the cow dung powder that had poison. Concerned

that  they  would  be  exposed  and  caught,  the  appellant  and

Mohanakrishnan (since deceased) had thrown the children in

the canal, where they got drowned and died.

84

30. Confession of an accused as to the offence made on oath

before the Magistrate under Section 164 Cr.P.C. is uncommon

and ‘rare’.  Both the trial court and the High Court have referred

to the confession, but have not considered its implication and

effect on the question of punishment as a mitigating factor.   

31. The  trial  court  in  its  judgment,  on  the  question  of

sentence, has recorded as under:

“With regard to question of sentence as it required section 235(2)  Cr.P.C the accused simply stated that  nothing is  to  say about  the sentence to be awarded.   Even  after  asking  the  accused repeatedly by explaining that there is a possibility for awarding maximum punishment prescribed in law  unless  the  court  convinced  with  adequate reasons.  Then also the accused did not respond. However  the  learned  counsel  appearing  for  the accused advanced her argument  by stating how for  the  rulings  relied  by  prosecution  is  not applicable  to  the  case  on  our  hand  and  further invites this court  that the accused Manoharan is aged about 25 hears, having aged parents and a family  and  he  is  the  1st offender  prayed  for leniency.”

The  trial  court  also  observed  that,  when  the  appellant  was

produced before the court on 29th October, 2012 and had been

told about the charge proved against him and on being asked

85

whether he had understood the consequences, the appellant

had stated that he had nothing to say.

32. Judgment in  Md.  Mannan  @  Abdul  Mannan  (supra)

highlights the  importance of  Section 235(2) of  Cr.P.C.,  which

postulates  that  if  the  accused  is  convicted,  the  court  must

proceed in accordance with the provisions of  Section 360 to

hear the accused on the question of sentence and then pass

the  sentence  on  the  accused  in  accordance  with  law.  This

provision  was  earlier  examined  in  Santa  Singh  v.  State  of

Punjab19 wherein it was observed that hearing on the question

of  sentence  should  not  be  rendered  an  idle  formality  by

confining  the  hearing  merely  to  earlier  submissions  without

giving an opportunity to the parties, the State and the accused,

to  produce  material  with  regard  to  various  factors  on  the

question of sentence.

33. In  the  present  case,  confession  was  not  made  at  the

behest  of  the  police/authorities  or  on  inducement  by  the

prosecution to enable the prosecution to prove the case against

the appellant.  Rather, we have already rejected the contention

19 (1976) 4 SCC 190

86

that  the  confession  was  extracted  under  compulsion,

inducement,  threat  or  promise  and  therefore  inadmissible.

Confession by the appellant was given voluntarily and after due

deliberation  on  20th November,  2010,  as  the  appellant  was

given a day’s time to think and ponder when he had appeared

before the Magistrate on 19th November, 2010.   

34. Confession of guilt is an acceptance of one’s sin. Though

psychologists are not clear as to how precisely guilt operates to

produce confession, one possibility is that it tends to cure self-

hostility.  Pangs  of  conscience  following  the  committal  of  an

offence would normally have a role to play when the person

confesses,  for  if  a  person  does  not  feel  the  guilt,  he  would

normally not confess to an act which is regarded as evil.  By

confessing, as an act of penance, a person may seek and beg

for  forgiveness.   However,  to  make  a  confession  can  be  a

degrading and humiliating experience, yet  the psychoanalytic

models suggest that this is the first step back into society.  (See

‘The Value of Confession and Forgiveness’, Carl Jung).   

87

35. In  this  case,  it  could  be argued that  the appellant  was

driven by the hope that an earlier admission of guilt may lead to

a lighter  sentence and that  was one of  the factors  that  had

prompted him to make the confession. However, to confess to

such  acts  of  crime  and  misdeeds  before  all  and  everyone,

including the Magistrate could only mean that the appellant had

felt  shame,  remorse  and  alienation  from  the  society.  It  is

probable,  among  other  reasons,  that  the  appellant  had

confessed his guilt in order to seek forgiveness. Otherwise, I do

not see any cause for him to appear before the Magistrate and

on oath, disclose in detail and accept his direct involvement in

the crime. In Bishnu Prasad Sinha (supra), this Court referred

to  the  confession  made by  the  appellant  before  the  Judicial

Magistrate  and  also  before  Sessions  Judge  in  a  statement

under Section 313 Cr.P.C. and observed that this would show

repentance.

36. Confession  of  crime  has  been  treated  as  a  mitigating

circumstance by this Court in  Gurdeep Singh alias Deep  v.

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State  (Delhi  Admn.)20, a  case  under  the  Terrorist  and

Disruptive Activities (Prevention) Act, 1987 to observe: -

“25. Before concluding we would like to record our conscientious feeling for the consideration by the legislature, if it deems fit and proper. Punishment to  an  accused  in  criminal  jurisprudence  is  not merely to punish the wrongdoer but also to strike a warning to those who are in the same sphere of crime or to those intending to join in such crime. This  punishment  is  also  to  reform  such wrongdoers not to commit such offence in future. The long procedure  and the  arduous journey of the prosecution to find the whole truth is achieved sometimes  by  turning  on  the  accused  as approvers.  This  is  by  giving  incentive  to  an accused  to  speak  the  truth  without  fear  of conviction.  Now  turning  to  the  confessional statement,  since  it  comes  from  the  core  of  the heart through repentance, where such accused is even  ready  to  undertake  the  consequential punishment  under  the  law,  it  is  this  area  which needs some encouragement to such an accused through  some  respite  may  be  by  reducing  the period  of  punishment,  such  incentive  would transform more such incoming accused to confess and speak the truth. This may help to transform an accused, to reach the truth and bring to an end successfully the prosecution of the case.”

The  above  paragraph  was  quoted  in  Mohd.  Maqbool

Tantray  v.  State of Jammu and Kashmir21, which too was a

case under the Terrorist and Disruptive Activities (Prevention)

20 (2000) 1 SCC 498 21 (2010) 12 SCC 421

89

Act, 1987 wherein the sentence was reduced from 14 years to

the  period  already  undergone  on  consideration  of  the

confession.

37. It is correct that the appellant after nearly two years had

written the letter dated 25th July 2012 to the Additional Sessions

Judge to be read as his statement under Section 313 Cr.P.C.,

retracting the last part of his confession as to his involvement in

sexual  assault,  rape and throwing the children in  the canal.

This letter does, however, substantially reiterate and accept the

first portion of the confession, including his presence in the van,

but states that  the appellant  had not raped the girl  and had

remained standing. It was stated that thereafter the appellant

was  dropped  by  Mohanakrishnan  (since  deceased)  near  a

bridge, who had driven off in the van with the children. Further,

the  appellant’s  statement  under  Section  164  Cr.P.C.,  as

recorded by the Magistrate, was incorrect and the police had

shown and played a video recording to the Magistrate.   

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38. Appellant’s partial retraction has been rightly disbelieved

for  good  reasons,  including  the  statement  of  the  appellant

under Section 313 Cr.P.C. in the Court accepting and admitting

that  his  confession  was  recorded  by  the  Magistrate.  The

retraction by itself, I would observe, should not be treated as

absence of remorse or repentance, albeit an afterthought or on

advice  propelled  by  fear  that  the  appellant  in  view  of  his

admission may face the gallows, and that the earlier confession

made seeking forgiveness would be the cause of his death. A

thought  of  doubt  and  attempt  to  retract  had  surfaced  on

account of belief that the sense of remorse, repentance and

forgiveness would not be appreciated and given due regard,

cannot  be  ruled  out.  Benefit  in  this  regard  must  go  to  the

appellant.  

39. The other mitigating factors in favour of the appellant are

his  young  age,  he  was  23  years  of  age  at  the  time  of

occurrence and he belongs to  a  poor  family.   He has aged

parents  and  is  a  first-time  offender  as  recorded  in  the

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judgment/order  of  the  trial  court.   Further,  the  appellant

Manoharan  was  not  initially  involved  in  the  abduction  and

kidnapping  of  the  children.   He  was  not  the  mastermind.

Mohanakrishnan (since deceased) had thought, conceived and

had single-handedly executed the plan to abduct the children.

Appellant did join him thereafter and was with Mohanakrishnan

(since deceased). Subsequently the devil  in Mohanakrishnan

(since  deceased)  took  over  and  he  sexually  assaulted  and

raped the small girl,  while the appellant kept quiet. Later the

appellant  too  sexually  assaulted  and  committed  rape.

Thereupon,  poison  was  administered  to  the  children  before

throwing  them  into  the  canal.  The  offence  committed  was

heinous and deplorable.

40. I would, therefore, uphold and maintain conviction of the

appellant under Sections 302, 376(2)(f) and (g) and 201 IPC

and the sentences awarded under Sections 376(2)(f) and (g)

and 201 IPC.  To this extent the appeal is dismissed.  In view of

the  aforesaid  discussion  and  on  balancing  aggravating  and

mitigating circumstances, in my opinion, the present case does

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not fall under the category of ‘rarest of rare’ case i.e. there is no

alternative but to impose death sentence.  It would fall within

the special category of cases, where the appellant should be

directed  to  suffer  sentence  for  life  i.e.  till  his  natural  death,

without  remission/commutation  under  Sections  432  and  433

Cr.P.C.  To this extent I would allow the appeal.  

 NEW DELHI; ......................................J. AUGUST 01, 2019. (SANJIV KHANNA)

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