TaxTMI 
TaxTMI 
2019 (11) TMI 1856
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...., a ten-year-old girl and 'Y', her 7-year-old brother were enrolled in Classes V and II respectively in a private school at Coimbatore and would commute around 7:45 a.m. in a pickup vehicle owned by one Kartikeyan (PW-2). On 29.10.2010 the children left as usual with their school bags and lunch boxes and stood about two-hundred feet away from their home, in front of the Vinayakar Temple. Around 8:00 a.m., PW-2 came to the designated pick-up spot but did not find the children there. He contacted the children's father, Ranjith Kumar Jain (PW-5), over mobile to enquire about their absence. Being in Hyderabad, PW-5 was unable to provide an immediate reply to the query of PW-2 and hence called his wife, the children's mother - Sangeetha (PW-8), who informed him that both X and Y had already left home. Since the father of the children (PW-5) was already on his way back to Coimbatore, he entrusted his wife to look out for the children and co-ordinate with the van driver. Sangeetha informed Karthikeyan that the children had already left the house, whereafter she along with her relatives Vijay Kumar (PW-1) and Sanjai (PW-6) started searching for the children. 3. Kamala Bai (PW-9), the pa....
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....harge from under Section 363, IPC to Sections 364(A), 376, 302 read with Section 201, IPC which was received by the Magistrate at 11:45PM. 5. Having observed certain saliva and yellow-coloured stains on the seized van, the IO requisitioned forensic assistance of Sarvanan (PW-43), Deputy Director of Mobile Unit of Tamil Nadu Forensic Sciences Department. In the presence Sarvanan (PW-43), Anbu (PW-7) and one Santosh Kumar (unexamined), the van was thoroughly searched wherein a lady's underwear bearing the inscription "SBT Kidswear 75 c.m." with hair strands was recovered. Sarvanan (PW-43) further collected the betel nut saliva stains on the left door of the van with a cotton swab for chemical examination, as well as dried yellow-colour stains found on the seat and floormat, and the clothes (namely pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar Exs. P-5 & P-6). Mohanakrishnan subsequently led a police team to the place where he claimed to have raped X as well as to Deepalapatti, the place from where the children had allegedly been pushed into the running waters of the PAP canal. 6. The girl child's body was found the subsequent morning in the PAP canal by villag....
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....t side middle of neck. Hyoid bone found intact." 9. The present review-petitioner, Manoharan (hereinafter "petitioner") who was stated to have perpetrated the crime along with Mohanakrishnan, was arrested on 31.10.2010 at 7AM, as recorded in Ex. D-4. Manoharan made a disclosure statement to the police (Ex. P-21) on the basis of which the IO (PW-47) recovered lunch box of Y from his house. Further, after being produced before the Magistrate the same day, the petitioner was sent to judicial custody. 10. A Test Identification Parade was conducted on request of the IO whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver of the van in which the children had been kidnapped. Subsequently, both the petitioner and Mohanakrishnan were medically examined on 04.11.2010 whereby samples of their blood and saliva were sent to the Tamil Nadu Forensic Science Laboratory for DNA Analysis. A potency test of the petitioner was conducted by Dr. J.R. Singh (PW-46), who in his medical report (Ex. P 56) found him potent and further noticed signs of injury around his private parts. 11. During recovery proceedings under Section 27 of the Indian Evidence Act (in short "IEA"), whilst in ....
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....ions of the counsels, the majority opinion of this Court read as follows: "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 Petitioner at all and given the nature of the crime as stated in paragraph 84 of the High Court's judgment it is unlikely that the Petitioner, if set free, would not be capable of committing such a crime yet again. The fact that the Petitioner 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." 16. Khanna J., in his minority opinion also upheld conviction under the various offences concerned, b....
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....sible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice." 19. The above cited decision was reiterated in Mukesh v. State of (NCT of Delhi) [(2018) 8 SCC 149] where also similar restrictive principles were applied and re-affirmed while considering the scope of review in death penalty cases. Reliance was placed on the dictum in Kamlesh Verma v. Mayawati [(2013) 8 SCC 320], prescribing that Courts should refrain from re-appreciating the entirety of evidence only to arrive at a different possible conclusion, besides illustrating an inexhaustible list of instances where review shall not be maintainable. The relevant part reads as follows: "20.2. When the review will not be maintainable: ....
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....d the admissibility of the confessional statement made by the petitioner before a Magistrate on 20.11.2010 on the premise that: (a) Confession was coerced and involuntary, and in contravention of Section 163, CrPC and Section 24, IEA for first, the petitioner had been physically assaulted by the police whilst in custody, as evidenced through answer to Question 8 posed by the Magistrate during preliminary examination on 19.11.2010. Second, the petitioner was under severe psychological stress owing to the in-custody killing of the co-accused Mohanakrishnan on 09.11.2010; and third, circumstances surrounding confession were suspicious, for the IO (PW-47) moved an application stating that the petitioner was ready to volunteer a confession when he was in judicial and not police custody. (b) The Magistrate failed to comply with the mandatory procedure as prescribed under Section 164, CrPC since he did not inform the petitioner that he would not be sent to police custody after recording of the confessional statement. 23. In light of the vehement attempt at assailing the confessional statement as being non-voluntary and violative of the right guaranteed under Article 2....
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....nfession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true. ..." 25. The objective behind such a provision has been explored by this Court in various decisions wherein it has been noted that provisions permitting use of confessionary statements in criminal trials were statutorily included as an acknowledgement of the possibility that in certain circumstances an accused may voluntarily confess to his offence(s). 26. From a chronological analysis of the confessional statement of Petitioner dated 20.11.2010 (Ex.P.18) as well as the preliminary examination held on 19.11.2010, it is apparent that the learned Magistrate - S.S. Sathiamoorthy (PW-28) duly complied with all procedural requirements for recording of a confessional statement and affirmatively satisfied himself of the voluntariness of the petitioner's confession: a. During preliminary examination, the petitioner informed ....
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....e ensured that any possible lingering effects of alleged beatings or psychological stress post encounter of co-accused, would have been mitigated. It is also apparent that the Magistarte duly informed the petitioner about the repurcussions of his confessional statement, and made no false assurance of it helping his case, as had been made in State of Assam v. Rabindra Nath Guha [1982 Cri LJ 216], which has erroneously been relied upon by Mr. Luthra. d. The statement once recorded, was thereafter read out to the petitioner who signed it to be correct. The Magistrate signed the statement at 4:30PM on 20.11.2010, and afterwards sent the petitioner to judicial custody. The Magistrate thus was fully conscious of his statutory obligation and factually ensured that the petitioner was not sent to police custody post the confessional statement. It is further clear that the petitioner was kept in judicial custody for almost twenty months after the confession, over the course of which there was no likelihood of him being entrusted to police, and still no protest or attempt to retract the confession was made by him. e. The fact that the application to record the petitioner's s....
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....umstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars." 30. Still further, it is clear that even in the retraction statement, the petitioner has made substantial admissions which read together with prosecution evidence, are sufficient to convict him. Through the letter dated 25.07.2012, the Petitioner merely restates his confession with certain omissions and a few denials as compared to his earlier statement. Although he agrees to be at the place of the occurrence along with the now deceased Mohanakrishnan throughout the incident, instead of admitting an equal role in commission of rape and murder, he portrays himself to be a mere helpless bystander. The petitioner has attempted to justify his retraction by stating that he had told the truth to the Magistrate bu....
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....ly made out and thus the High Court's conclusion that the last seen theory can be relied upon cannot possibly be assailed." 34. Such an independent re-appreciation was also conducted by Khanna J. in his minority opinion in para nos. 23 to 29. INADEQUACY OF LEGAL REPRESENTATION 35. Mr. Luthra seeks to make a third core challenge by placing reliance on Article 21 of the Constitution of India, claiming that it mandates adequate and efficient legal assistance, the denial whereof would amount to condemning one unheard. 36. There cannot be any quarrel with the cited proposition for it is a fundamental tenet of criminal jurisprudence, least not because of our Constitution, that every person has a right to effective legal assistance. In case an accused cannot afford the same, then it is the responsibility of the State to provide free legal aid, as definitively noted in Hussainara Khatoon v. State of Bihar [(1980) 1 SCC 98]. However, we feel that such a right has been protected in the present case and the legal representation accorded to the petitioner was not inadequate. 37. At the outset, as noted in State v. Navjot Sandhu [(2005) 11 SCC 600] judicial scrutiny of a counsel'....
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....ting the Petitioner's rights under Article 21 of the Constitution. 40. The plea regarding absence of a counsel during proceedings before the Magistrate under section 164, CrPC resulting into any prejudice, are misconceived. What mandatorily is needed, as noted earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with. It is pertinent to take note of the first Proviso to Section 164(1), added with effect from 31.12.2009, which specifies that: "Provided that any confession or statement made under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence." (emphasis supplied) 41. Section 164 of the Code thus does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audio-video electronic means. DISCREPANCIES IN ARREST & RECOVERY OF EVIDENCE 42. The next c....
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....seizure of van and presence of stains on its doors and floor mat. ii. Thereafter, A. Sarvanan (PW-43), Deputy Director of Mobile Unit of Tamil Nadu Forensic Sciences Department was called by the IO (PW-47) at around midnight of 29/30.10.2010. PW-43 examined the van whereby the underwear of the deceased girl (MO-1) was found with hair strands. Cellophane tape was applied to the hair strands by PW-43, to keep them at their spot and the MO-1 was then put in a cover and sealed. Further, PW-47 sealed the same in an 'Angelform' brassieres cardboard box, obtained from vicinity and seized it as Mahazar (Ex.P.5). iii. Accordingly, Ex.P.5 reached the Judicial Magistrate on 30.10.2010 along with Form 95 pertaining to the MO-1. This explains the delay of one day in production of Ex.P.5 before the Judicial Magistrate. iv. Moreover, since 30.10.2010 was a Saturday, the Judicial Magistrate directed Ex.P.5 to be produced again on the next working day i.e. 01.11.2010. Hence, the box was re-produced before the Judicial Magistrate on 01.12.2010 and was then forwarded to Tamil Nadu Forensic Sciences Department for further analysis. 46. PW-43 prepared his report (Ex.P.38) and sent ....
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....urse which is punishable under Section 377 IPC, and he has been wrongly convicted under Section 376 IPC. Such a plea, however, does not find support from the overwhelming evidence to the contrary. First, relevant portions of the confessional statement need to be extracted: "... I asked him to give me a chance. He asked me to do it with the girl. Seated from the front seat, Mohan saw. I went and saw the girl who was without a pant. I placed my penis on the front side when the girl cried saying it was paining. Then I did through backside through anus. Even that did not come good for me. Then I masturbated and brought out semen. ..." 51. The confessional statement lucidly reveals that the accused placed his penis on the vagina of the deceased girl consequent to which she cried. This act of the Petitioner satisfies all relevant ingredients of Section 376 as it existed at the relevant time. The only dispute that remains is whether the Petitioner committed peno-vaginal penetration or not. However, the medical evidence shows that vaginal intercourse had been committed with X and that there was a contusion on the petitioner's private part. Relevant portions of the post-mortem o....
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....n the contention of Mr. Luthra and are of the view that the petitioner is justly convicted for offence under Section 376 IPC. ERRONEOUS RELIANCE ON POCSO 56. It was then urged that this Court ought not to have relied on a recent amendment to the Protection of Children from Sexual Offences (POCSO) Act, 2012 to justify death penalty, as the new law was non-existent on the date of occurrence and hence cannot be applied retrospectively in derogation to Article 20 of the Constitution. 57. Although the plea is attractive at first glance, it must be noted that the Petitioner has not been convicted or sentenced under the POCSO Act. Instead, only a passing reference was made to pinpoint whether the present case was rarest of the rare and whether it would shock the conscience of the society. It has been noted by this Court in Macchi Singh v. State of Punjab [AIR 1983 SC 957] and various other judgments that in order to uphold the guarantee under Article 21 and to reduce arbitrariness caused by discretion of judges in sentencing, it should be the opinion of the society and not the personal opinion of the judge which should be considered whilst awarding sentence of death. Towards the ....
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....erpreted by this Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India [(1980) 4 SCC 680] vis-à-vis criminal proceedings, is not confined to "an error apparent on the face of the record". Even so by the process of interpretation it cannot be stretched to embrace the premise indicated by my learned brother as a ground for review. That apart there are two difficulties in the way. The first is that the acceptance of the said proposition would result in equating the opinion of the majority to a ground analogous to "an error apparent on the face of the record" and secondly in a Bench of three Judges or of greater strength if a learned Judge is not inclined to confirm the death sentence imposed on a convict, the majority will be precluded from confirming the death sentence as that per se would become open to review. 60. Further, even sans the aforesaid decisions, we are not inclined to accept such a reasoning for it is contrary to the established jurisprudence of precedents and interpretation of verdicts with multiple opinions. It is settled in law that dissenting opinions have little precedential value and that there is no difference in operation between decisions ren....
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....f. Further, medical evidence has proved that rape was committed on the deceased girl. It is hence factually incorrect to state that the Petitioner prevented the co-accused from raping the girl and is nothing more than a belated lie at the end of the trial. Hence, the exculpatory parts ought to be excluded per Nishi Kant Jha v. State of Bihar [1969 SCC (1) 347] . 65. Even observed devoid of any aggravating circumstances, mere young age and presence of aged parents cannot be grounds for commutation. One may view that such young age poses a continuous burden on the State and presents a longer risk to society, hence warranting more serious intervention by Courts. Similarly, just because the now deceased co-accused Mohanakrishnan was the mastermind whose offence was comparatively more egregious, we cannot commute the otherwise barbarically shocking offences of the petitioner. We are also not inclined to give leeway of the lack of criminal record, considering that the current crime was not just one offence, but comprised of multiple offences over the series of many hours. 66. Even if the cases involving confession merit some leniency and compassion, however, as was earlier noted in....