ISHWARI LAL YADAV versus STATE OF CHHATTISGARH

Citation: [2019] 13 S.C.R. 893 · Decided: 03-10-2019 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Disposed off

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Judgment (excerpt)

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 [2019] 13 S.C.R. 893
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ISHWARI LAL YADAV
v.
STATE OF CHHATTISGARH
(Criminal Appeal Nos.1416-1417 of 2017)
OCTOBER 03, 2019
[R. F. NARIMAN, R. SUBHASH REDDY
AND SURYA KANT, JJ.]
Penal Code, 1860: ss.364/34 r/w. s.120B, ss.302/34 r/w.
s.120B and s.201 –  Gruesome murder of small boy as a human
sacrifice – Prosecution case was that a child (boy) was found missing
from his house – When his parents were searching  for him, they
noticed loud music being played in the house of appellants – They
entered the house along with other village people and found freshly
dug mound of earth – Appellants-main accused who claimed to be
“tantriks” admitted that they killed the boy with the help of other
co-accused and buried him to attain “siddhi” and begged for mercy
– On the basis of disclosure statements of accused, recoveries of
certain incriminating articles were made – Trial court convicted all
the accused under ss.364/34 r/w. s.120B, ss.302/34 and s.201 and
awarded death sentence – High Court confirmed the death sentence
of the two main accused and modified the sentence of other accused
to life imprisonment – On appeal, held: It was consistently, deposed
by the independent witnesses that when they entered the house of
the main accused,  they had confessed that they had committed
murder of the missing child for the purpose of sacrifice – There was
nothing on record to show that such confessions were caused by
inducement, threat or promise – When such confessions were
corroborated by other evidence on record, the trial court as well as
the High Court, rightly relied on such confessions – As regards the
charge of kidnapping and conspiracy, there was no acceptable
evidence on record – As far as co-accused were concerned other
than the main accused, there was no consistency of the persons
named by the witnesses in the house of main accused, when they all
entered their house – In absence of any consistent definite evidence
regarding presence of all other accused, along with the main accused
and further when the prosecution failed to prove either the common
intention or the conspiracy on their part along with the main
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
accused, the case of the prosecution cannot be accepted and as
such co-accused are entitled for the benefit of doubt – Prosecution
proved the guilt of the main accused for offence under s.302 r/w
s.34, however, their conviction under ss.364/34 r/w. s.120B is set
aside.
Evidence Act, 1872: s.106 – Applicability of – Held: As regards
the applicability of s.106 of the Evidence Act, it was proved by
cogent evidence that the body of the missing boy was found in the
house of the main accused – By applying the provision under s.106,
burden was on the accused to explain the fact within the knowledge
of them how the body of the boy came to be buried in their house –
Penal Code, 1860.
Sentence/Sentencing: Death sentence – Punishment for
murder – It is clearly well settled that normal punishment for the
offence under s.302 IPC is life imprisonment but in a case where
incident is of “rarest of rare cases” death sentence is to be imposed
–  It is equally well settled that only special facts and circumstances
will warrant passing of death sentence and a just balance has to be
struck between aggravating and mitigating circumstances, before
the option is exercised – To come to conclusion in each case
aggravating and mitigating circumstances are to be considered –
Further factors like, age of the accused, possibility of reformation,
gravity of the offence etc. are also to be kept in mind – In this case,
evidence on record showed that the two main accused, committed
the murder of the two year old child as a sacrifice to the God –
They had three minor children at that time – Inspite of the same,
they committed the murder of two year old child brutally – The head
of the helpless child was severed, his tongue and cheeks were also
cut – Having regard to age of the accused, they were not possessed
of the basic humanness, they completely lacked the psyche or mindset
which can be amenable for any reformation – It was a planned
murder committed by the two appellants – Appellants who were the
main accused were also convicted on an earlier occasion for similar
murder of a 6 year old girl – Such conviction for similar offence
can be considered as aggravating factor – This is a case of “rarest
of rare cases” where death sentence imposed by the trial court was
rightly confi

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