LexSURENDRA PAL SHIVBALAKPAL versus STATE OF GUJARAT
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SURENDRA PAL SHIVBALAKPAL
v.
ST ATE OF GUJARAT
SEPTEMBER 16, 2004
[K.G. BALAKRlSHNAN AND DR. AR. LAKSHMANAN, JJ.]
Penal Code, 1860:
Ss. 363, 376 and 302-A child kidnapped, ravished and done to death-
Jn the night accused seen with a girl on his shoulders-On the following day
in the early morning body of girl found indicating sexual assault on her- ·
His conduct immediately prior to the incident and chemical examination of
his garments pointing towards. accused having committed the crime-
Conviction and sentence of death awarded by trial court confirmed by High
Court-Held, both the courts below appreciated the evidence in correct
perspective and rightly found the accused guilty-Conviction confirmed, but
sentence commuted to life imprisonment.
Sentence/Sentencing-Accused convicted under ss. 363, 376 and 302
!PC-Death penalty imposed by trial court confirmed by High Court-Held,
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there is no evidence that accused was involved in any other criminal case
previously nor can it be concluded from the material on record that he would
be a menace to the society in future-Accused being a migrant labour and
living in impecunious circumstances-Jn the circumstances it cannot be said
that this is a rarest of rare case warranting death penalty-Sentence of death
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commuted to life imprisonment.
Code of Criminal Procedure, 1973:
s.235(2)-Hearing the accused on question of sentence-Plea that
accused should have been heard in-person and not through the counsel
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appointed by him-Held, if the accused had engaged a counsel, court can
hear the counsel on the question of sentence-Besides, on facts, accused was
present in court and he did not make any further statement regarding
sentence-He also had liberty to adduce evidence regarding sentence but he
did not avail the opportunity-Contention that he was not questioned before
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the sentence was imposed is not correct.
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SURENDRA PAL SHIVBALAKPAL v. STATE
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Allauddin Mian & Ors., Sharif Mian & Anr. v. The State of Bihar, JT A
(1989) 2 SC 171, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 259
of 2004.
From the Judgment and Order dated 19/21.11.2003 of the Gujarat High
Court in Crl. C.C. No. 112003, Crl. A. No. 770 of 2003.
Darshan Singh Chawla (A.C.) for the {\ppellant.
Madhukar Verma, Ms. Sadhana Sandhu and Ms. Hemantika Wahi for
the Respondent.
The following Order of the Court was deliv,ered :
The appellant was found guilty by the Sessions Court for the offences
punishable under Sections 363, 376 and 302 IPC. For the offence of murder
he was sentenced to death. The appellant preferred"an appeal before the High
Court and there was also the reference case regarding confirmation of death
sentence. The appeal and reference were heard together and the division
bench of the High Court of Gujarat confirmed the conviction of the appellant
on all the counts and the death penalty imposed on the appellant for the
offence under Section 302 IPC was confirmed. Aggrieved by the conviction
and sentence this appeal was preferred.
The appellant Surendra Pal Shivbalakpal was staying in one of the
rooms of a building owned by complainant Kavalpati, a widow having three
children. On 11.9.2002 at about 10 p.m., the appellant came to PW-2
Kevalpati and offered Rs. 150 and sought for sexual favours. PW-2 got angry
and she asked him to go away, but the appellant declined to leave the place.
PW-2 told her brother Rajaram and her son Manoj that the appellant had been
harassing. They came and scolded the appellant and he left the place. During
the night, PW-2 along with her two minor daughters were sleeping on a cot
lying outside the room. At about midnight she felt cold and went inside and
at l.00 o'clock she came back and then she saw that one of her daughters
namely Savitri @ Sanju was missing. She immediately called her brother
Rajaram and her son Manoj who were sleeping in another portion of the same
house. They searched Sanju at nearby places and as they had suspicion on
the appellant Surendrapal, they went in search of him in his house but the
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
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appellant was not found in his room. They made enquiry with PW-7
Ramvaran. He stated that he had seen appellant Surendrapal going away with
a girl on his shoulder but he thought that the girl must be the daughter of
Fulchand, a relative of the appellant. The people in the locality collected anExcerpt shown. Read the full judgment & AI analysis in Lexace.