RAVI v. THE STATE OF MAHARASHTRA

Judgment

(for R.F. Nariman, J. and himself)

#1. During search operations by the police and also the family members of the missing child, it surfaced that the appellant was distributing chocolates to allure children near Maroti Temple on that day and around that time the child went RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 717 missing. The police-team, the father of the victim and his brother, genuinely apprehensive and smelling something foul, reached the house of the appellant and nabbed him red-handed under the bed with the victim in naked condition. It further stood established conclusively that deceased had been brutally assaulted and subjected to vaginal and unnatural intercourse. The victim had been inflicted multiple injuries on face, head, neck, external genetalia as well as inside the uterus and urethra. The appellant had the special knowledge as to in what circumstances the victim child suffered those multiple injuries. The burden to prove that those injuries were not caused by him was on the appellant alone in view of Section 106 of the Evidence Act, which he has miserably failed to discharge though the evidence on record proves beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her. [Para 30] [738-C-G] Scientific Evidence connecting the appellant with the Crime:

2.1 P.W.11 Assistant Director in Forensic Science Laboratory (FSL), Mumbai testified that they conducted the DNA test as per the guidelines issued by the Director of Forensic Science, Ministry of Home Affairs, New Delhi. P.W.11 accordingly prepared the DNA report which was duly attested by the Assistant Chemical Analyser also. On seeing the contents of his report, P.W.11 has pertinently deposed that there were sexual intercourse and unnatural intercourse on the victim by the accused. The unshakable scientific evidence which nailed the appellant from all sides, was sought to be impeached on the premise that the method of DNA analysis “Y-STR” followed in the instant case was unreliable. It was suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage. [Paras 32-34] [739-D; 740-H; 741-A-B]

2.2 The globally acknowledged medical literature coupled with the statement of P.W.11 – Assistant Director, FSL leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA A B C D E F G H 718 SUPREME COURT REPORTS [2019] 15 S.C.R. A B C D E F G H analysis techniques like “autosomal-STR” are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the Y-Chromosome which is found only in males. It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as exculpatory evidence and is extensively relied upon in various jurisdictions throughout the world. Science and Researches have emphatically established that chances of degradation of the `Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis. Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant. There was thus overwhelming eye- witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proved that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. [Paras 35, 36] [741-C-G; 742-A- B]

#3. Though the High Court has observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence. The case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions who have seen the appellant committing the crime, may be in part. Such an unshakable evidence with dense support of DNA test does not require the definite determination of the motive of the appellant behind the gruesome crime. [Para 37] [742-C-E] RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 719 SENTENCING:

4.1 The object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system. A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti- social elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence. Equally important is the stand-point of a `victim’ which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The `victim’-the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish `crime’ would surreptitiously turn its back on the `victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a `victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights – the right to life. [Paras 50-52] [748-D-H; 749-A-B] A B C D E F G H 720 SUPREME COURT REPORTS [2019] 15 S.C.R. A B C D E F G H