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Synopsis

The Supreme Court recently commuted the death sentence of a man to life imprisonment with 25 years in jail without remission in a case of sexual assault and murder of a boy under four years of age in 2016. Court also opined that the normal life term of 14 years would have been grossly disproportionate and inadequate for the convict.

The bench of Justices B.R. Gavai, Aravind Kumar, and K.V. Vishwanathan upheld the conviction of appellant Shambhubhai Raisangbhai Padhiyar. However, the court held that the case was not one where the possibility of reformation could be completely ruled out.

"The option of life imprisonment is also not foreclosed. The case does not fall in the category of rarest of rare case. We are of the opinion that ends of justice would be met if we adopt the path carved out in Swami Shraddananda Vs State of Karnataka (2008)," the bench said.

While pointing out that even though the case of the appellant fell short of the rarest of rare categories, considering the nature of the crime, the bench said, "We are strongly of the view that a sentence of life imprisonment which normally works out for 14 years would be grossly disproportionate and inadequate. Having regard to the nature of the offence, a sentence of imprisonment for a prescribed period without remission would alone be proportionate to the crime and also not jeopardise the public confidence in the efficacy of the legal system."

The trial court had sentenced Shambhubhai Raisangbhai Padhiyar to death penalty after holding him guilty for offences under Sections 302, 364, and 377 of the IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012, for the FIR lodged in Bharuch district.

According to the prosecution, the appellant had taken the victim away under the pretext of giving him ice cream and committed the offence. The court noted that the case was based on circumstantial evidence.

Going through the evidence, the bench noted that it was undisputed that between 12:00 and 01:00 PM, the appellant went to the neighborhood of the house of the deceased, partook of water from the aunt, engaged her in a conversation, and, despite being dissuaded, took the deceased child under the pretext of buying him ice cream.

"The appellant offered no explanation as to what happened after the time he spent with the child and has no case that he handed over the child to any other person or that he dropped the child home. Unlike in the case of grownups, where an explanation about the manner of parting company could in a given case be acceptable in the case of a small child who has been picked up from neighborhood of his house, it would be normal to expect that the small child would be dropped back home or an explanation about entrusting of the child to another person to be safely taken home is given. The appellant’s lack of explanation is to say the least baffling," the bench said.

The bench pointed out that it was well settled that if the accused was last seen with the deceased and particularly in a case of this nature, where the time gap between the last seen stage and the occurrence of death was so short, the accused had to offer a plausible explanation as to how he parted company with the deceased, and the explanation offered had to be satisfactory.

"Section 106 of the Evidence Act mandates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is on this principle that this court has repeatedly held that if an accused fails to offer an explanation, he fails to discharge the burden cast upon him under Section 106 and if he fails to offer a reasonable explanation that itself provides an additional link in the chain of circumstances," the bench said.

The court noted injuries on the private parts of the accused and also considered the matching of the blood group as an additional link in the chain as far as the facts of this case were concerned.

The appellant's counsel contended that no DNA test had been carried out in the case.

"No doubt, the DNA test was not carried out and it would have been better for the prosecution to have done the same. However, keeping the overall conspectus of the case in mind, we do not think that not conducting DNA test was fatal to the prosecution," the bench said.

Citing Veerendra Vs State of Madhya Pradesh, (2022), the bench said, the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim.

Referring to the evidence, the bench noted that the deceased had been subjected to a brutal sexual assault. The injuries evidenced in the postmortem report clearly indicated that the deceased had suffered aggressive penetrative sexual assault. The injury on the prepuce of the penis of the accused, along with the matching of the blood group, coupled with other circumstantial evidence, clearly constituted foundational facts for raising presumption under Sections 29 and 30 of the POCSO Act, the bench noted.

"The manner in which the appellant enticed the deceased child under the pretext of buying ice-cream in spite of being dissuaded by the aunt (PW-10) and without the consent of the lawful guardians also makes out an offence under Section 364 of IPC. The aggravated penetrative sexual assault clearly establishes offence under Section 377 of IPC and Sections 4 and 6 of the POCSO Act. The appellant has not rebutted the presumption by adducing proof to the contrary," the bench said.

The bench concluded that the circumstances were fully established; that the circumstances so established were consistent only with the hypothesis of the guilt of the accused and were not explainable by any other hypothesis; that the circumstances were conclusive in nature; and that the chain of circumstances was so complete as to point to the conclusion that the appellant was guilty of the offences charged.

"In view of the same, we uphold the conviction as imposed by the Trial Court and confirmed by the High Court," the bench said.

Dealing with the sentence, the bench drew up a balance sheet of the aggravating and mitigating circumstances to decide whether the case fell in the category of rarest of rare case.

"Without doubt, the crime committed by the appellant was diabolic in character. He enticed the innocent child by tempting him with ice-cream and brutally sodomized and murdered the four-year old. The appellant also mercilessly strangulated the deceased. The post-mortem report clearly indicated that death was due to asphyxia by throttling," the bench said.

On the mitigating side, the bench noted that the appellant was 24 years old when the incident occurred, had no criminal antecedents, and hailed from a low socio-economic household. The appellant maintained family ties with his 64-year-old mother, who took care of his 10-year-old daughter. The appellant’s wife had deserted him.

Court also noted a report from the Superintendent of Vadodara Jail, which indicated that the appellant’s behavior in prison was completely normal and that his conduct in jail was good. A report from the Hospital for Mental Health indicated that the appellant had no psychiatric problems at present. The report also indicated a feeling of remorse in the appellant.

"Considering the overall facts and circumstances, we hold that the present is not a case where it can be said that the possibility of reformation is completely ruled out," the bench said.

Applying the principle laid down in Nawas Alias Mulanavas Vs State of Kerala (2024), the bench said, "We hold that a sentence of imprisonment for a period of 25 (twenty-five) years without remission would be ‘a just dessert’."

The court also set aside fine amounts, considering the socio-economic condition of the accused on the facts of the present case.

Case Title: Shambhubhai Raisangbhai Padhiyar Vs State of Gujarat