COURT :  Supreme Court of India (Full Bench (FB)- Three Judge)


JUDGEMENT DATE :  Feb 09, 2022



Section 302 – Punishment for murder

Section 376 – Punishment for rape



These appeals by special leave are directed against the judgment

and order dated 06.10.2017 in Reference No. 13 of 2016 and Capital

Case No. 6601 of 2016 whereby, the High Court of Judicature at

Allahabad has affirmed the judgment and order dated 07/08.12.2016 in

Sessions Case No. 414 of 2015, as passed by the Additional Sessions

Judge, Court No. 2, Kushinagar; and, while upholding the conviction of

the appellant of offences punishable under Sections 376, 302, 201 of the

Indian Penal Code, 1860 and Section 5/6 of the Protection of Children

from Sexual Offences Act, 20122, has confirmed the death sentence

awarded to him for the offence under Section 302 IPC.


1.1. In addition to sentence of death for the offence under Section 302

IPC, the appellant has also been punished with fine of Rs. 20,000/- for the

offence under Section 302 IPC. This apart, he has been awarded the

punishments of rigorous imprisonment for a term of 10 years and fine of

Rs. 10,000/- for the offence under Section 376 IPC; rigorous

imprisonment for a term of 7 years and fine of Rs. 5,000/- for the offence

under Section 201 IPC; and rigorous imprisonment for a term of 10 years

1 ‘IPC’, for short.

2 ‘POCSO’, for short.


and fine of Rs. 10,000/- for the offence under Section 5/6 POCSO. While

providing for further imprisonment in case of non-payment of fine amount,

it has also been directed that half of the fine amount shall be given to the

mother of deceased girl as compensation.

  1. In these appeals, the conviction of the appellant as also the

punishment awarded to him, particularly the capital punishment, are

under challenge. Before dealing with the matter in necessary details, we

may draw a brief sketch to indicate the contours of the forthcoming


2.1. The appellant has been accused of enticing a seven-year-old girl

to accompany him on the pretext of picking lychee fruits; having thereafter

committed rape upon the child; having caused her death; and having

dumped the dead body near a bridge on the riverbank, after having

dragged the dead body over a distance of one and one-quarter


2.2. The prosecution case rested on circumstantial evidence to the

effect that the victim was lastly seen in the company of the appellant; that

her dead body was recovered at the instance of the appellant; that the

appellant had failed to satisfactorily explain his whereabouts and his

knowledge of the location of dead body; and that the medical and other

scientific evidence was consistent with the accusation. Per contra, the

appellant alleged that he was falsely implicated due to enmity with the

families of the deceased and other witnesses because of a land dispute.


2.3. The Trial Court, after analysing the material placed on record,

came to the conclusion that the prosecution had been able to substantiate

the charges by proving beyond doubt that the appellant had taken the

deceased with himself by enticing her to pluck and eat lychee fruits,

committed rape and then murdered her, and concealed the dead body in

bushes near the riverbank. Thus, the appellant was convicted by the

judgment dated 07.12.2016. Next day, the learned Additional Sessions

Judge heard the accused and the prosecution on the question of

sentence; and looking to the heinous crime committed by the appellant,

found it unjustified to show any mercy in punishment and thus, awarded

varying punishments, including that of death sentence for the offence

under Section 302 IPC.

2.4. The sentence of death was submitted for confirmation to the High

Court in terms of Section 366 of the Code of Criminal Procedure, 19733


On the other hand, the accused-appellant preferred an appeal against the

judgment and order of the Trial Court. Both, the reference case for

confirmation of death sentence and the appeal preferred by the appellant,

were considered together, where the High Court found no reason to

disbelieve the evidence led by the prosecution; and while rejecting the

defence story of wrongful prosecution for enmity due to land dispute,

affirmed the findings on conviction of the appellant. The High Court further

dealt with the question of sentence and with reference to the nature of

offence, in brutal rape and murder of a seven-year-old girl child, found the

3 ‘CrPC’, for short.


present one to be ‘rarest of rare case’, where the sentence of death was

considered ‘eminently desirable’. The High Court, accordingly, dismissed

the appeal filed by the appellant and confirmed the punishment awarded

to him, including the sentence of death.

2.5. In the present appeals, conviction of the appellant has been

questioned essentially with the contentions that the relevant factors are

indicative of ante-dating of the FIR; that the prosecution has not been

able to prove that the deceased was last seen with the appellant; that the

story of discovery of dead body at the instance of the appellant was also

not established; and that the medical and forensic evidence was not

conclusive to connect the appellant with the crime. The sentence

awarded to the appellant has also been put to question, essentially with

the submissions that the Trial Court as also the High Court have not

examined the mitigating circumstances existing in this matter, including

that it is a case of weak chain of circumstances; and that the appellant is

having no criminal antecedent and comes from a poor socio-economic

background with family members, including wife and children, being

dependent on him. Per contra, it is contended on behalf of the respondent

that concurrent findings on the guilt of the appellant, based on proper

appreciation of facts, call for no interference. It is also submitted that the

abhorrent nature of the crime justifies the death sentence in the present

case where the appellant, a grown-up person of about 35 years of age,

enticed a seven-year-old girl child and committed brutal rape and murder.


2.6. Thus, two major points would arise for determination in these

appeals: first, as to whether the conviction of the appellant calls for any

interference; and second, if the conviction of the appellant is maintained,

as to whether the sentence of death awarded to the appellant deserves to

be maintained or deserves to be substituted by any other sentence?

  1. With the aforesaid outline, we may take note of the relevant

factual and background aspects in necessary details.


Analysis Section 307 Attempt to Murder.


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