Supreme Court of India
Rabbu @ Sarvesh vs The State Of Madhya Pradesh on 12 September, 2024
Author: B.R. Gavai
Bench: Prashant Kumar Mishra, B.R. Gavai
2024 INSC 720 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 449-450 OF 2019
RABBU @ SARVESH …APPELLANT(S)
VERSUS
THE STATE OF MADHYA PRADESH …RESPONDENT(S)
JUDGMENT
B.R. Gavai, J.
1. Heard Shri N. Hariharan, learned Senior Counsel for the
appellant and Shri Bhupendra Pratap Singh, learned Deputy
Advocate General appearing on behalf of the State of Madhya
Pradesh.
2. These appeals arise out of the judgment and order
dated 17.01.2019 passed by the Division Bench of the High
Court of Madhya Pradesh at Jabalpur, dismissing the appeal
of the appellant and confirming the judgment and order
Signature Not Verified dated 20.08.2018 passed by the First Additional Sessions
Digitally signed by
Narendra Prasad
Date: 2024.09.23
Judge, Bina, District Sagar (hereinafter referred to as the
16:30:21 IST
Reason:
“Trial Judge”), thereby convicting the appellant for offences
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punishable under Sections 450, 376(2)(i), 376D, 376A and302 read with 34 of the Indian Penal Code, 1860 (for short,
‘IPC’) and Section 5(g)/6 of the Protection of Children from
Sexual Offenses Act, 2012 (for short, ‘POCSO’) awarding
death penalty under Sections 376A and 302 IPC and life
imprisonment under Section 376D of the IPC and rigorous
imprisonment for 10 years under Section 450 of the IPC.
3. Shri Hariharan submits that the present case basically
rests on the three dying declarations and the DNA report. He
submits that the dying declarations are inconsistent. He
further submits that as the time progressed there were
improvements in the dying declaration. He therefore submits
that in the present case the truthfulness of the dying
declarations itself is doubtful and therefore the conviction
could not be based on the said dying declarations. He further
submits that the DNA report also points out towards the
presence of a third person. In such an eventuality, the
learned Senior Counsel submits that the order of conviction
could not be sustained.
4. Shri Hariharan, in the alternative, submits that the
present case is not a ‘rarest of the rare’ case, which would
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justify awarding death penalty. He further submits that, in
the present case, the order convicting the appellant and
imposing death penalty were done simultaneously. He
submits that the learned Trial Judge also does not consider
the balance between the mitigating circumstances and
aggravating circumstances while awarding the death penalty.
Learned Senior Counsel therefore submits that in the event
this Court is not inclined to interfere with the finding of the
conviction, in the facts and circumstances of this case and
particularly taking into consideration the fact that the
appellant lost his mother and brother at a tender age, the
socio-economic background of the appellant and the age of
the appellant at the time of commission of crime so also his
conduct and behaviour in the prison entitle him for
commutation of sentence.
5. Shri Bhupendra Pratap Singh, learned Deputy Advocate
General (DAG), on the contrary, submits that the learned
Trial Judge as well as the High Court, upon appreciation of
the evidence, have correctly come to a finding that the
present appellant is guilty for the offences committed. He
therefore submits that no interference is warranted in the
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present appeals.
6. Insofar as the prayer made by the learned Senior
Counsel for the appellant regarding commutation is
concerned, the learned DAG for the respondent-State relies
on the following judgments of this Court in the cases of
Shivu and Another v. Registrar General, High Court of
Karnataka and Another1, Purushottam Dashrath Borate
and Another v. State of Maharashtra2, and Deepak Rai v.
State of Bihar3, in order to contend that merely the age of
the appellant cannot be taken into consideration. He further
submits that the appellant taking advantage of the
circumstances that the deceased was alone in the house has
committed the heinous crime and therefore the present case
would squarely fit in the category of ‘rarest of the rare’ cases.
He submits that the psychological report would also show
that there is no remorse expressed by the appellant. He
therefore submits that taking into consideration all these
aspects, the death penalty needs to be confirmed.
7. We have perused the material on record and find that
1
(2007) 4 SCC 713 : 2007 INSC 136
2
(2015) 6 SCC 652 : 2015 INSC 392
3
(2013) 10 SCC 421 : 2013 INSC 638
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the dying declaration recorded by the Executive Magistrate
(Naib Tehsildar), PW-11, which was endorsed by Dr. Avinash
Saxena, PW-9 is reliable and trustworthy. The dying
declaration recorded by PW-11 is in question-answer form.
In the said dying declaration, the deceased clearly implicates
the present appellant. The Medical Officer, PW-9, before the
commencement of the dying declaration has given an
endorsement regarding fit mental status of the deceased to
make a declaration and at the end of the dying declaration
again he has endorsed that the deceased was in a fit state of
mind. The written dying declaration is corroborated by the
oral dying declaration as has come on record in the evidence
of her grand-father Sohan Singh (PW-1), her grand-father’s
brother Mukund Singh (PW-2), her aunt Preeti (PW-13) and
her uncle Sandeep Singh Rajpoot (PW-14).
8. In the said dying declaration, all the witnesses have
clearly stated that the deceased after coming out from the
room in flames has narrated the incident about the appellant
committing the crime. Not only this, but DW-1-Golu Chaubey
who was examined on behalf of the defence has also clearly
stated that when the deceased came out of the house, she
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was shouting that the accused person(s) had committed rape
on her and set her on fire. The statement of the deceased
recorded under Section 164 of the Code of Criminal
Procedure, 1973 (for short, Cr.P.C.) by Smt. Suchita
Srivastava, Judicial Magistrate First Class, Sagar (PW-23)
also supports the prosecution case. The Dehat Nalishi (Ex.
P/28) recorded by Sub Inspector, Anjana Parmaar (PW-16)
also narrates the same factual position.
9. In that view of the matter, we do not find that there is
any error in the concurrent orders of the Trial Judge and the
High Court convicting the appellant for the offences
punishable under Sections 450, 376(2)(i), 376D, 376A and
302 read with 34 of the IPC and Section 5(g)/6 of the POCSO.
10. The question that now requires to be considered is as to
whether the present case would fall in the category of ‘rarest
of rare case’ so as to confirm the death penalty or the
sentence could be commuted.
11. We have perused the psychological assessment of the
present appellant as conducted by the Department of
Psychiatry, NSCB Medical College, Jabalpur, Madhya
Pradesh so also the report of the Senior Probation and
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Welfare Officer, Central Jail, Bhopal, Madhya Pradesh dated
12.06.2023 and the report of the Divisional Officer, Western
Division/Assistant Jail Superintendent, Central Jail
Jabalpur dated 10.06.2023.
12. In the said reports, it has been found that there is
nothing against the behaviour of the appellant herein in the
prison. His conduct in the prison has been found to be
satisfactory. The reports further reveal that though not
allotted any work, the appellant is engaging himself in
plantation of trees, cleaning the temple and surrounding
area.
13. While considering as to whether the death penalty
needs to be confirmed or not, we would be required to take
into consideration various factors.
14. It is not in dispute that the appellant lost his mother at
the tender age of 8 years and his elder brother at the age of
10 years. The appellant was brought up by his father as a
single parent. The appellant has close family ties with his
father, his sister, who is married and his grand-mother.
Though, Shri Singh is right that the age of the appellant at
the time of commission of crime solely cannot be taken into
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consideration, however the age of the appellant/accused at
the time of commission of crime along with other factors can
certainly be taken into consideration as to whether the death
penalty needs to be commuted or not.
15. In the present case, it is to be noted that the appellant
comes from a socio-economic backward stratum of the
society. As already discussed hereinabove, he lost his mother
and brother at the tender age. The appellant and his family
members do not have any criminal background. The
appellant was of a tender age of 22 years when the aforesaid
incident occurred.
16. It cannot be said that the appellant is a hardened
criminal, who cannot be reformed. The possibility of the
appellant, if given the chance of being reformed, cannot be
ruled out.
17. In that view of the matter, we find that in the present
case the confirmation of death penalty would not be justified.
However, at the same time we also find that the ordinary
sentence of life i.e. 14 years imprisonment with remission
would not meet the ends of justice. In our considered view,
the present case would fall in the middle path, as laid down
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by this Court in a catena of judgments, which are as follows:-
i. Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka4; ii. Shankar Kisanrao Khade v. State of Maharasthra5; iii. Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka6;
iv. Prakash Dhawal Khairnar (Patil) v. State of
Maharashtra7;
v. Mohinder Singh v. State of Punjab8;
vi. Madan v. State of Uttar Pradesh9;
vii. Navas @ Mulanavas v. State of Kerala10
18. We, therefore, find that in the facts and circumstances
of the present case, the death penalty needs to be commuted
to fixed imprisonment without remission for a period of 20
years.
19. The order of conviction is maintained however the death
4
(2008) 13 SCC 767 : 2008 INSC 853
5
(2013) 5 SCC 546 : 2013 INSC 281
6
(2017) 5 SCC 415
7
(2002) 2 SCC 35 : 2001 INSC 606
8
(2013) 3 SCC 294 : 2013 INSC 61
9
2023 SCC OnLine SC 1473
10
2024 SCC OnLine SC 315 : 2024 INSC 215
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penalty awarded under Sections 376A and 302 IPC is
commuted to rigorous imprisonment for 20 years.
20. The appeals are allowed to the extent indicated above.
21. Pending application(s), if any, shall stand disposed of.
…………………………J.
(B.R. GAVAI)
………………………………………J
(PRASHANT KUMAR MISHRA)
…………………………..J.
(K.V. VISWANATHAN)
NEW DELHI;
SEPTEMBER 12, 2024.
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