A legal aid lawyer appointed the morning he cross-examined the key witness, in a case that ended in a death sentence
Rather than order a retrial, three judges sent the principal witness back for further cross-examination seven years on. The conviction survived it. The death sentence did not.
A Special Judge at Jaora in Ratlam district convicted the appellant in December 2018 of the rape and murder of a child and sentenced him to death. The Madhya Pradesh High Court at Indore confirmed the reference and dismissed his appeal in November 2019. On 24 September 2026, in Waris v. State of Madhya Pradesh, a Bench of Justice Vikram Nath, Justice Sandeep Mehta and Justice Vijay Bishnoi affirmed every finding of guilt and commuted the sentence of death.
The judgment runs to 157 pages and is organised like a textbook, with a table of contents and sections lettered A to R. Two things in it matter beyond the case: how the Court repaired a defect in the trial without ordering a retrial, and why, on a crime it describes in the gravest terms, it would not confirm the death sentence.
What the prosecution alleged
The victim's mother had been married before and had four children by that marriage. After her first husband's death she returned to her parental home at Jaora with the victim, then about five. In August 2017 she married the appellant and moved with the child to his house at Kushalgarh.
The prosecution case is that after an initial period of cordiality the appellant began ill-treating the child and then sexually abusing her within the household, threatening the mother when she objected, controlling her movements and preventing disclosure.
The immediate events are alleged to have begun on the night of 21 April 2018, when the appellant assaulted the child after confining the mother in another room. The child was restless afterwards, vomited, and deteriorated. The prosecution case is that he assaulted her again the following day and refused to take her for treatment despite the mother's requests.
On the morning of 23 April the mother telephoned him twice as the child worsened — the call detail record shows calls at 9.20.30 and 9.21.24. He returned about noon. According to her, his first question was whether the child had told her anything. When she pressed again for medical treatment he refused. Shortly afterwards she heard the child scream and saw him throttling her with both hands. The child died soon after.
He then took the body to private practitioners, who either did not examine her or declared her dead. The body was taken towards Kushalgarh, where he proposed immediate burial; on the mother's insistence it went to Jaora instead, and then to the Civil Hospital. The post-mortem the next day gave the cause of death as asphyxia due to throttling, and recorded a fresh tear at the fourchette with oozing of blood, indicative of sexual assault.
Counsel appointed on the day
The appellant was convicted under Sections 376(2)(f), 376(2)(n), 376AB, 302 and 201 of the Indian Penal Code and Sections 5 and 6 of the POCSO Act. Death was imposed for the offences under Section 376AB and Section 302.
The problem the Supreme Court had to confront first concerned the mother of the victim, examined as the principal prosecution witness. She was examined and cross-examined on 16 July 2018 by a legal aid counsel appointed that very same day, with no real opportunity to prepare.
In a capital case, the Bench holds, that plainly fell short of the standard of effective legal assistance and meaningful cross-examination guaranteed by Article 21. The finding is stated without qualification, and it is the kind of defect that ordinarily sends a case back for retrial.
A proportionate cure, not a retrial
The Court declined that course, and the reasoning is the most transferable part of the judgment.
The defect, it held, was confined to the cross-examination of one witness — an important one, but one. It did not infect the entire trial. Sections 391 and 367 of the Code of Criminal Procedure empower an appellate court, and a court dealing with a death reference, to take or direct the taking of further evidence where that is necessary for a just decision. Directing the further cross-examination of that witness, with adequate protection for her and full access to the record for the defence, was therefore a proportionate cure rather than a retrial.
By an order of 8 May 2025 the Court directed exactly that. The further cross-examination was conducted on 14 June 2025 before the Special Judge under the POCSO Act. This time the appellant was represented by counsel of his own choosing, the complete record had been made available in advance, and the witness was examined afresh on the matters the defence wished to put to her.
The conviction then had to be reassessed on the evidence as it stood after that exercise, and the Court worked through it in lettered sections: the medical evidence, which it treats as the objective substratum against which the oral account is tested; the mother's ocular account; the assault on her credibility; the victim's dying declaration; the corroborative evidence; the scientific evidence; the defence case; the alleged defects in the investigation; the offences established; and finally what it calls the complete picture.
Having found the mother's account — that the appellant sexually assaulted the child and then throttled her — reliable, corroborated, and able to withstand each attack directed against it, the Bench turns to a further and distinct piece of evidence on the sexual assault, which it describes as being of a solemn and peculiar character: the voice of the victim herself, in what the child said on the night of 21 April when her mother found her. Its conclusion across all of it was that guilt was established.
Three defences, and Section 106
The defence was threefold. First, an alibi — that the appellant was away from the village on the relevant dates. Second, a counter-narrative spoken to by a defence witness, that it was the mother who used to beat the child. Third, fabrication: that the police coerced him with a threat of implicating him in an opium husk case and made him sign blank papers.
The Court took each in turn, holding throughout that as an inmate of the house in which the child died, the appellant stood in the position Section 106 of the Evidence Act places a person in as to facts within his special knowledge. On alibi it applied the settled and stringent rule that the plea is not a matter of mere assertion.
Convicted and sentenced to death on the same day
Before reaching the sentence itself, the Bench records with candour a second defect below — this one in how the sentencing question was handled.
The Trial Court convicted the appellant and sentenced him to death by a single judgment dated 17 December 2018: conviction recorded and death imposed on one and the same day. Section 235(2) of the Code requires that after a conviction is pronounced the accused shall be heard on sentence before it is passed, and the Court is emphatic that this is not an empty formality. Where death is a possible outcome, that hearing is meant to give the accused a real and meaningful opportunity to place before the court everything bearing on the choice of sentence, including circumstances personal to him that nobody else is in a position to bring forward.
The Bench invokes Allaudin Mian v. State of Bihar, which held that where the conviction is for an offence punishable with death the court ordinarily ought not to impose sentence on the day the conviction is recorded, but should give the accused a genuine opportunity — adjourning if necessary — to adduce material relevant to sentence, observance of which is essential to the just exercise of sentencing discretion.
That gap is why the material before the Supreme Court, including the Mitigation Investigation Report, was fuller than anything the courts below ever saw.
Aggravating circumstances that accumulate
On sentence, the judgment separates the aggravating and mitigating circumstances into their own sections and insists on treating each properly.
The aggravating circumstances, it records, are neither few nor slight, and — unlike many cases — they are not merely different descriptions of a single feature of the crime. They are distinct, they accumulate, and their number and variety are themselves a feature of the case. The first and most compelling is the extreme youth and utter helplessness of the victim.
The gravest feature the Court identifies is one it gives a name to: instrumental silencing — that the murder was committed in order to silence the victim and extinguish the evidence of the rape. That, the Bench holds, compounds the murder of a child with an assault upon the administration of justice, and lends the crime an exceptional character. It says in terms that it does not cease to regard this as an aggravating circumstance of the highest order.
Mitigating circumstances, construed liberally
Against that the Court sets the circumstances of the criminal, which the sentencing method requires to be considered with the same care as the circumstances of the crime, and to be construed liberally.
These were drawn principally from a Mitigation Investigation Report and the accompanying material, and the Bench is explicit about how it handled them: stated as they emerge from the material, neither discounted because the crime is grave nor magnified beyond what the material supports.
The first body of them concerns the appellant's childhood and early life — born into poverty and instability, his mother dead when he was about seven, depriving him of his primary caregiver.
The question is not whether reformation is proved
The decisive passage reframes what the sentencing inquiry is actually asking.
The Court accepts that conduct in the controlled environment of a prison is not a complete measure of reformation and must be assessed with that limitation in mind. But the question, it holds, is not whether the material proves reformation to a certainty. On the settled law the question is whether the possibility of reformation can be excluded — because it is only where that possibility is excluded that a sentence of death becomes permissible.
On this record the State led no evidence of incorrigibility. The convict's conduct in custody had been without blemish. The psychological evaluation disclosed no condition from which incorrigibility might be inferred. On that material the possibility of reformation could not be said to be excluded; it remained open, and while it remained open the alternative of life imprisonment was not foreclosed.
The Bench then answers the obvious objection — that instrumental silencing is so grave it should override everything. An aggravating circumstance, however grave, operates within the structure of the sentencing inquiry and does not stand outside it. Even the gravest aggravating feature must be weighed against the mitigating circumstances and, in particular, against the unexcluded possibility of reformation.
The attack on the investigation
The appellant also mounted a sustained attack on the investigation, contending the crime had been foisted on him as an afterthought. Its principal features were that the FIR was registered against an unknown person despite the mother's statement; that his involvement rested on an anonymous telephone call which was unproved and unrecorded; that he was arrested only on 25 April 2018, and at the police station rather than at the scene; that the offences of rape and the POCSO offences were added without any section alteration report; and that the disclosure and consequent recoveries were unreliable. The Court dealt with each and found none of them sufficient to displace the evidence it had accepted.
Like cases treated alike
Before settling the sentence, the Bench tested its weighing against comparable decisions, on the principle that like cases must be treated alike, and considered the options lying between death and an ordinary life sentence.
The appellant placed before it a substantial body of decisions in which death sentences for the rape and murder of a young child had been commuted — among them Lochan Shrivas v. State of Chhattisgarh, where commutation followed from the offender's youth and family background and the absence of material excluding reformation. The Court treated these as of direct relevance, concerning the very class of crime before it.
That comparison is what makes the middle path available: not the ordinary life sentence, which remission can cut short, but a fixed and unremitted term of imprisonment for the whole of natural life.
The sentence imposed
The death sentence for the offences under Section 302 and Section 376AB was commuted to imprisonment for the remainder of the appellant's natural life — life imprisonment extending to the whole of the remainder of his life, upon which no remission shall be granted.
The sentences of imprisonment and fine for the remaining offences under Sections 376(2)(f), 376(2)(n) and 201 of the IPC and Sections 5 and 6 of the POCSO Act were affirmed. Having regard to Section 42 of the POCSO Act, the appellant is liable to punishment under that Act or under the corresponding IPC provisions, whichever is greater in degree, and all substantive sentences are to run concurrently.
The Court closes by describing what it has done in plain terms. The sentence imposed is one of the utmost severity, second only to death, and will confine the appellant within prison walls for the whole of the remainder of his life without the prospect of release by way of remission. It is proportionate to the gravity of his crime and reflects the abhorrence with which the law regards what he did — while stopping short of taking his life in a case in which the possibility of his reformation has not been foreclosed.