ISHWARI LAL YADAV v. STATE OF CHHATTISGARH

HELD: 1. All the persons who joined PW-3 and PW-5, the parents of the deceased child stated in one voice, that when they entered the house of the main accused, they found some wet area and some puja articles. They noticed fresh mounds of earth. When they removed the same, they found the body of the deceased child in two parts. All the witnesses consistently stated that the body was in two parts, its cheeks were cut and tongue was missing. 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 deceased 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. From the evidence, it was proved that the place where the body of deceased boy was traced belonged to the two main accused and in absence of any explanation from their side, there was no error committed by the trial court in accepting such evidence. [Paras 14, 16][905- H; 906-A-B]

#2. To prove the charge of kidnapping and conspiracy, there was no acceptable evidence on record. In absence of any corroborative evidence for kidnapping of the deceased boy by the co-accused, the evidence on record cannot be accepted. Even to prove the common intention to attract the provision under Section 34, IPC, it requires a pre-arranged plan and prior concert. Therefore, there must be prior meeting of minds. The common intention must exist prior to the commission of the act in a point of time. The burden lies on the prosecution to prove that participation of more than one person for commission of criminal act was done in furtherance of common intention. The common intention stood proved between the two main accused but at the same time there was no acceptable evidence against all others to prove their guilt that they have committed the offence with the common intention. Prosecution failed to prove the common intention of all other appellants than the main accused, either to kidnap or to murder the deceased child on the day of occurrence. A B C D E F G H 896 SUPREME COURT REPORTS [2019] 13 S.C.R. The evidence on record showed that all other accused were disciples of self-claimed gurumata, main accused no.2 and they were regularly visiting her house for offering fruits and flowers. 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 accused, the case of the prosecution cannot be accepted as such they are entitled for the benefit of doubt. In view of the evidence on record the prosecution proved the guilt of the main accused for the offence under Section 302 read with Section 34 of the IPC. [Para 17][906-C-G; 907-B-C]

#3. It is 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 Section 106 of the Indian Evidence Act definitely, it is the burden of the accused to explain the fact within the knowledge of them how the body of the boy came to be buried in their house. [Para 19][908-B-C]

#4. It is clearly well settled that normal punishment for the offence under Section 302 IPC is life imprisonment but in a case where incident is of “rarest of rare cases” death sentence is to be imposed. 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. In a “rarest of rare case” capital punishment is to be imposed. 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, the main accused, committed the murder of the two year old child boy as a sacrifice to the God. They had three minor children at that time. Inspite of the same, they committed the murder of the deceased, a child of two years of age 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 A B C D E F G H ISHWARI LAL YADAV v. STATE OF CHHATTISGARH 897 can be amenable for any reformation. It is a planned murder committed by the two appellants. The appellants who are the main accused were also convicted on an earlier occasion for the offence under Section 302/34 and Section 201 of IPC for similar murder of a 6 year old girl for which they were convicted. Such conviction for similar offence can be considered as aggravating factor. [Paras 22, 23][910-F-H; 911-A-D]