REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1008-09  OF 2007

Ankush Maruti Shinde and others  ....Appellants

Versus

State of Maharashtra ....Respondent

With

Criminal Appeal Nos.         881-882                    of 2009  (Arising out of SLP (Crl.) Nos.8457-58 of 2008)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted in SLP (Crl.) Nos.8457-58 of 2008 which have been  

filed by the State of Maharashtra questioning alteration of death sentence to  

life sentence.

2. These appeals  are interlinked and are disposed of  by this  common  

judgment.  By the  impugned  judgment  a  Division  Bench  of  the  Bombay  

High  Court  dispose  of  the  reference  made  by  learned  Third  Adhoc  

Additional  Sessions  Judge,  Nasik,  under  Section  366  of  the  Criminal  

Procedure  Code,  1973  (in  short  the  ‘Code’)  for  confirmation  of  death  

sentence. While upholding the conviction and the death sentence of accused  

Nos.1,  2 & 4, the sentence in respect  of the accused Nos. 3, 5 & 6 was  

altered  to  life  sentence  with  fine.   Accused  Nos.  1,  2  &  4  were  also  

convicted for offence punishable under Section 376(2)(g) of the Code and  

sentenced  to  suffer  rigorous  imprisonment  for  10  years.  The  order  of  

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conviction  and  sentence  under  Section  376(2)(g)  in  respect  of  accused  

nos.3, 5 & 6 was set aside. The accused persons were convicted for offence  

punishable under Section 307 read with Section 34 and sentenced to five  

years’ imprisonment each. They were also convicted under Section 397 read  

with  Sections  395  & 396  IPC.   The  accused  persons  filed  the  criminal  

appeals  while  the  State  has  filed  the  appeals  for  alteration  of  the  life  

sentence to death and also challenged the acquittal of three of the accused  

persons for offence punishable under Section 376 IPC.

3. Prosecution version in a nutshell is as follows:

On 5/6/2003 Trambak and all his family members as well as the guest  

Bharat More were chitchatting after dinner and at about 10.30 p.m. seven to  

eight  unknown  persons  entered  his  hut  and  all  of  them  were  wearing  

banyan and half pant and they started threatening the family members. They  

demanded money as well  as ornaments  and Trambak took out Rs.3000/-  

from  his  pocket  and  handed  over  to  one  of  them.  Some  of  the  gang  

members forcibly took away the mangalsutra as well as ear-tops and dorley  

from the person of Vimalabai, ear-tops from the person of Savita and silver  

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rings which were around her feet. From the person of Manoj, they removed  

a silver chain and a wrist watch. Thereafter they went out of the hut and  

consumed liquor.  After some time they re-entered the hut  with  weapons  

like knife, axe handle, sickle, spade with handle and yokpin etc., to rob the  

house members and collect more money and ornaments etc. They started  

beating the family members and Trambak was the first person who received  

assault. Sandeep and other members of the family told the dacoits to take  

away whatever they could collect from the house, but no family members  

should  be  assaulted.  At  this  stage  Sandeep  was  assaulted  and  so  also  

Shrikant  @  Bhurya,  Bharat  and  Manoj.  The  dacoits  did  not  spare  

Vimalabai  as  well.  They tied  hands  and legs  of  all  the  family members  

except  Manoj  and  Vimalabai.  As  a  result  of  assault  Manoj,  Trambak,  

Sandeep,  Shrikant  and Bharat  became unconscious.  Three of the dacoits  

dragged Savita out of the hut and took her to the guava garden. Two of the  

dacoits then picked up Vimalabai and dragged her towards the well. One of  

them raped her near the well and then she was taken to the guava garden  

where Savita was taken.  Vimalabai was assaulted and brought back to the  

hut.   After  some time,  the  three  dacoits  brought  Savita  back  in  naked  

condition and with injuries on her body.  When the dacoits had entered the  

hut at about 10.30 p.m. the light bulb in the hut was burning and TV was  

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on. The dacoits increased the volume of the tape recorder and after they  

dropped Savita in the hut,  they put  on shoes and started walking on the  

persons  lying  injured  and  they  thought  that  all  of  them  were  dead.  

Vimalabai (PW 8) lost her consciousness around 12 O'Clock in the night  

and till then the dacoits were present in the hut and they left the hut under  

the belief that all of the victims were dead. However, Manoj (PW1) and his  

mother  Vimalabai  (PW 8)  survived.  They  are  the  eye  witnesses  to  the  

prosecution  case.  On  the  basis  of  information  given,  investigation  was  

undertaken.  

The clothes from the dead bodies of five deceased persons as well as  

the clothes on the person of Manoj and Vimalabai were seized. From the  

spot  some weapons  like  wooden  handle,  spade  with  handle,  yokpin  and  

sickle were also seized. The seized articles were sent for chemical analysis  

and CA reports from Exhibit 58 to Exhibit 72 were received. In view of the  

gravity  of  the  incidence,  the  police  machinery  was  obviously  under  

tremendous pressure and it sought assistance from the neighbouring districts  

like  Ahmednagar,  Aurangabad,  Jalgaon  and  Dhule  etc.  The  first  

breakthrough  came on 23/6/2003  when accused nos.1  and 2  came to  be  

arrested  under  arrest  panchanamas  (Exhibits  44  and  45)  by  the  Crime  

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Branch. The police during the course of investigation also got information  

that some other accused were also involved in a separate crime registered  

with the police station at Bhokardhan in Jalna district on 19/6/2003 and the  

police,, therefore, filed an application before the competent Court seeking  

transfer  of  the  accused  in  Crime  No.74  of  2003  registered  with  the  

Bhokardhan police station and finally accused nos.3 to 5 came to be arrested  

on 27.6.2003 under arrest panchanamas (Exhibits 53, 54 and 55) after their  

custody was transferred from the police station at Bhokardhan. On the arrest  

of accused nos.1 to 5 their clothes were seized and they were subjected to  

medical examination. Dr. Satish Vasant Shimpi (PW 16) examined accused  

nos.3, 4 and 5 on 27/6/2003 and issued medical certificates at Exhibits 133  

to 135. Of these three accused, accused No.4 - Raju Mhasu Shinde was seen  

to have sustained injuries within three weeks.  Accused nos.1 and 2 were  

examined by Dr.Vilas Patil (PW 24) on 23/6/2003. Both the accused were  

seen  to  have  sustained  injuries  within  three  weeks  and  the  medical  

certificates  were  issued  at  Exhibits  195  and  196.  During  the  course  of  

investigation  and  it  is  evident  that  the  statement  of  Sunita  wife  of  Raja  

Shinde  was  recorded  at  Exhibit  77A  in  the  presence  of  Ibrahim  Wazir  

Shaikh (PW 7) on 25/6/2003. Test identification parade of the accused nos.1  

to 5 was held on 25/7/2003 in the jail premises and Manoj (PW 1) identified  

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the five accused as the  unknown persons  who had entered their  hut  and  

assaulted  the  family  members  Vimalabai  (PW8)  also  identified  Accused  

Nos. l,  3, 4 and 5 as the unknown persons who had entered the hut and  

assaulted  the  family  members.  She  however,  could  not  identify  accused  

No.2 Raja Appa Shind. Accused no.6 came to be arrested on 7/10/2004 and  

his TI parade was held on 9/10/2004. Both PW 1 and PW 8 identified the  

said  accused  as  one  of  the  unknown  persons  who  entered  their  hut  and  

assaulted the family members. The test identification report at Exhibit 120  

was  proved  through  the  evidence  of  the  Special  Executive  Magistrate,  

Ramesh Sonawane (PW 13).

The  Trial  Court  convicted  the  accused  persons  as  noted  above.  

Because of the award of death sentence, reference was made to the High  

Court.  Accused  persons  also  filed  appeals.   Basic  question  related  to  

evidence relating to Test Identification Parade (in short ‘TI Parade’).  High  

Court found the same to be credible.

4. The  basic  question  raised  by  learned  counsel  for  the  accused-

appellant is that T I Parade as held and so called dying declarations have no  

relevance.

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5. Learned  counsel  for  the  State  on  the  other  hand  supported  the  

judgments of the trial court as confirmed by the High Court.  In the appeals  

filed by the State it is submitted that no plausible reason has been indicated  

not to award death sentence in respect of accused persons whose TI Parade  

was held.

6. It is to be noted that TI Parade of A1 to A5 was held on 25.7.2003.  

PW1 had identified all the five accused persons, PW 8 had identified A1,  

A3, A4 and A5. Subsequently  A6 was arrested  on 7.10.2004 and the TI  

Parade was held immediately thereafter where PWs 1& 8 identified him.  It  

is to be noted that first TI Parade was held on 25.7.2003 in the jail premises  

where all  the five accused persons were made to stand in a queue in the  

parade hall.  PW 25 who was the Magistrate and conducted the TI Parade  

clearly stated that he found the dummies to be acceptable and respectable  

persons selected by the police was assessed by him and found to be reliable.  

In  his  explanation  report  Ext.229  he  has  clearly  stated  that  no  police  

personnel or any of the employees of the jail was allowed to stand in the  

parade hall when each of the witnesses was brought for identification of the  

accused.   He  has  further  stated  that  the  accused  persons  were  asked  to  

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change their clothes on every time and the accused could not be seen any of  

the  witnesses  prior  to  such  witnesses  being  called  for  identifying  the  

accused.  As rightly observed by the trial court and the High Court, in the  

cross  examination  of  PW 25  nothing  material  has  been  brought  out  to  

discredit his evidence.

7. If  potholes  were  to  be  ferreted  out  from  the  proceedings  of  the  

Magistrate holding such parades possibly no T I Parade can escape from one  

or two lapses.  If a scrutiny is made from that angle alone and the result of  

the parade is treated as vitiated every TI Parade would become unusable.  T  

I  Parades  are  not  primarily  meant  for  the  Court.  They  are  meant  for  

investigation  purposes.   The object  of  conducting  TI Parade is  two fold.  

First is to enable the witnesses to satisfy themselves that the prisoner whom  

they suspect is really the one who was seen by them in connection with the  

commission of the crime.  Second is to satisfy the investigating authorities  

that  the  suspect  is  the  real  person  whom  the  witnesses  had  seen  in  

connection with the said occurrence.

8. PWs.  1  &  8  are  the  two  eye  witnesses  to  the  occurrence.  Few  

discrepancies of trivial and minor nature cannot be a reason to discard their  

evidence.

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9. In  Amitsingh Bhikamsing Thakur v.  State  of Maharashtra [2007(2)  

SCC 310] it was observed as follows:

“14. It  is  trite  to  say  that  the  substantive  evidence  is  the  evidence  of  

identification in Court. Apart from the clear provisions of Section 9 of the  

Indian Evidence Act, 1872 (in short the ‘Evidence Act’) the position in law  

is  well  settled  by  a  catena  of  decisions  of  this  Court.  The  facts,  which  

establish the identity of the accused persons, are relevant under Section 9 of  

the Evidence Act. As a general rule, the substantive evidence of a witness is  

the statement  made in  Court.  The evidence  of  mere identification  of  the  

accused person at the trial for the first time is from its very nature inherently  

of a weak character. The purpose of a prior test identification, therefore, is  

to test and strengthen the trustworthiness of that evidence. It is accordingly  

considered a safe rule of prudence to generally look for corroboration of the  

sworn testimony of witnesses in Court as to the identity of the accused who  

are strangers to them, in the form of earlier identification proceedings. This  

rule of prudence, however, is subject to exceptions, when, for example, the  

Court is impressed by a particular witness on whose testimony it can safely  

rely, without such or other corroboration. The identification parades belong  

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to the stage of investigation, and there is no provision in the Code which  

obliges the investigating agency to hold or confers a right upon the accused  

to  claim,  a  test  identification  parade.  They do  not  constitute  substantive  

evidence and these parades are essentially governed by Section 162 of the  

Code.  Failure  to  hold  a  test  identification  parade  would  not  make  

inadmissible  the  evidence  of  identification  in  Court.  The  weight  to  be  

attached to such identification should be a matter for the Courts of fact. In  

appropriate cases it may accept the evidence of identification even without  

insisting on corroboration.”  

11. The evidence of PWs 1 & 8 have been analysed in great detail of the  

trial  court  and  the  High  Court  to  find  their  evidence  to  be  cogent  and  

credible.   Apart  from that,  the evidence of medical  officer  PWs. 9 & 15  

clearly  established  the  allegation  of  rape.   It  is  stated  that  Savita  had  

suffered bleeding injury on her private part  and her hymen was ruptured.  

She was found to be of the age of 15 years and Vimalabai stated that she  

(Savita)  was dragged out  of  hut  by three accused and was brought  back  

naked and dead by the very same accused and thrown in the hut.

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12. The injuries externally noted on the body of Savita provide further  

sustenance  to  the  prosecution  version  that  she  was  subjected  by  sexual  

assault by the accused when she would fall a victim to their hunger of flesh  

and the empowerment exercised by all of them, multiple blows were given  

on and around her skull.  Injuries were sustained by PWs. 1 & 8.  It is to be  

noted that Manoj (PW1) regained his consciousness around 7.30 am while  

Vimlabai (PW 8) regained consciousness at about 9.30 on 6.6.2003.  It is  

clear from the evidence that had the medical treatment not been provided,  

both of  them would have died.   They had suffered grievous  injuries  and  

were under medical treatment for 1 and 1½  months.  They had suffered  

several injuries which were caused by blunt and hard objects.   

13. It  was  vehemently  urged  by  learned  counsel  for  the  accused  

appellants that this is not a case to be fall under the rarest of rare category.  

14. The law regulates a social interests, arbitrates conflicting claims and  

demands.   Security of persons  and property of the people  is  an essential  

function  of  the  State.  It  could  be  achieved  through  instrumentality  of  

criminal law. Undoubtedly, there is a cross cultural  conflict  where living  

law must find answer to the new challenges and the courts are required to  

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mould  the  sentencing  system  to  meet  the  challenges.  The  contagion  of  

lawlessness would undermine social order and lay it in ruins.  Protection of  

society  and  stamping  out  criminal  proclivity  must  be  the  object  of  law  

which must be achieved by imposing appropriate sentence. Therefore, law  

as  a  corner-stone  of  the  edifice  of  “order”  should  meet  the  challenges  

confronting the society. Friedman in his “Law in Changing Society” stated  

that, “State of criminal law continues to be – as it should be – a decisive  

reflection of social consciousness of society”.  Therefore, in operating the  

sentencing  system,  law  should  adopt  the  corrective  machinery  or  the  

deterrence based on factual matrix.  By deft modulation sentencing process  

be stern where it should be, and tempered with mercy where it warrants to  

be. The facts and given circumstances in each case, the nature of the crime,  

the  manner  in  which  it  was  planned  and  committed,  the  motive  for  

commission of the crime, the conduct of the accused, the nature of weapons  

used and all other attending circumstances are relevant facts which would  

enter into the area of consideration.  For instance a murder committed due to  

deep-seated mutual and personal rivalry may not call for penalty of death.  

But an organised crime or mass murders of innocent people would call for  

imposition  of  death  sentence  as  deterrence.   In  Mahesh v.  State  of  M.P.  

(1987) 2 SCR 710), this Court while refusing to reduce the death sentence  

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observed thus:

“It  will  be  a  mockery  of  justice  to  permit  the  accused to escape the extreme penalty of law when faced  with  such  evidence  and  such  cruel  acts.  To  give  the  lesser punishment for the accused would be to render the  justicing  system of the  country suspect.   The common  man  will  lose  faith  in  courts.   In  such  cases,  he  understands and appreciates the language of deterrence  more than the reformative jargon.”

15. Therefore, undue sympathy to impose inadequate sentence would do  

more harm to the justice system to undermine the public confidence in the  

efficacy  of  law  and  society  could  not  long  endure  under  such  serious  

threats.  It is, therefore, the duty of every court to award proper sentence  

having regard to the nature of the offence and the manner in which it was  

executed or committed etc. This position was illuminatingly stated by this  

Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463).  

16. The criminal law adheres in general to the principle of proportionality  

in prescribing liability according to the culpability of each kind of criminal  

conduct.  It  ordinarily  allows  some significant  discretion  to  the  Judge  in  

arriving  at  a  sentence  in  each  case,  presumably to  permit  sentences  that  

reflect  more  subtle  considerations  of  culpability  that  are  raised  by  the  

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special facts of each case.  Judges in essence affirm that punishment ought  

always to fit the crime; yet in practice sentences are determined largely by  

other  considerations.  Sometimes  it  is  the  correctional  needs  of  the  

perpetrator that are offered to justify a sentence. Sometimes the desirability  

of keeping him out of circulation, and sometimes even the tragic results of  

his crime. Inevitably these considerations cause a departure from just desert  

as the basis of punishment and create cases of apparent injustice that are  

serious and widespread.  

17. Proportion  between  crime  and  punishment  is  a  goal  respected  in  

principle, and in spite of errant notions, it remains a strong influence in the  

determination  of  sentences.  The  practice  of  punishing  all  serious  crimes  

with equal severity is now unknown in civilized societies, but such a radical  

departure from the principle of proportionality has disappeared from the law  

only  in  recent  times.  Even  now  for  a  single  grave  infraction  drastic  

sentences are imposed. Anything less than a penalty of greatest severity for  

any  serious  crime  is  thought  then  to  be  a  measure  of  toleration  that  is  

unwarranted and unwise. But in fact, quite apart from those considerations  

that make punishment unjustifiable when it is out of proportion to the crime,  

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uniformly disproportionate punishment has some very undesirable practical  

consequences.            

18. After giving due consideration to the facts and circumstances of each  

case,  for  deciding  just  and  appropriate  sentence  to  be  awarded  for  an  

offence, the aggravating and mitigating factors and circumstances in which  

a crime has been committed are to be delicately balanced on the basis of  

really relevant circumstances in a dispassionate manner by the Court.  Such  

act of balancing is indeed a difficult task.  It has been very aptly indicated in  

Dennis Councle McGautha v. State of Callifornia: 402 US 183: 28 L.D. 2d  

711  that no formula of a foolproof nature is possible that would provide a  

reasonable criterion in determining a just and appropriate punishment in the  

infinite variety of circumstances that may affect the gravity of the crime.  In  

the  absence  of  any  foolproof  formula  which  may  provide  any  basis  for  

reasonable criteria to correctly assess various circumstances germane to the  

consideration of gravity of crime, the discretionary judgment in the facts of  

each  case,  is  the  only  way  in  which  such  judgment  may  be  equitably  

distinguished.

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19. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353),  

it has been held by this Court that in the matter of death sentence, the Courts  

are required to answer new challenges and mould the sentencing system to  

meet these challenges.  The object should be to protect the society and to  

deter  the  criminal  in  achieving  the  avowed  object  to  law  by  imposing  

appropriate  sentence.  It  is  expected  that  the  Courts  would  operate  the  

sentencing  system  so  as  to  impose  such  sentence  which  reflects  the  

conscience of the society and the sentencing process has to be stern where it  

should be. Even though the principles were indicated in the background of  

death  sentence  and  life  sentence,  the  logic  applies  to  all  cases  where  

appropriate sentence is the issue.

20. Imposition  of  sentence  without  considering  its  effect  on the social  

order in many cases may be in reality a futile exercise. The social impact of  

the  crime,  e.g.  where  it  relates  to  offences  against  women,  dacoity,  

kidnapping, misappropriation of public money, treason and other offences  

involving moral turpitude or moral delinquency which have great impact on  

social order, and public interest, cannot be lost sight of and per se require  

exemplary treatment. Any liberal attitude by imposing meager sentences or  

taking too sympathetic view merely on account of lapse of time in respect of  

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such offences will  be result-wise counter  productive in the long run and  

against  societal  interest  which needs to be cared for and strengthened by  

string of deterrence inbuilt in the sentencing system.  

21. In  Dhananjoy Chatterjee v.  State of W.B. (1994 (2) SCC 220), this  

Court  has  observed  that  shockingly  large  number  of  criminals  go  

unpunished  thereby  increasingly,  encouraging  the  criminals  and  in  the  

ultimate making justice suffer by weakening the system’s creditability. The  

imposition  of  appropriate  punishment  is  the  manner  in  which  the  Court  

responds  to  the  society’s  cry  for  justice  against  the  criminal.  Justice  

demands that Courts should impose punishment befitting the crime so that  

the Courts reflect public abhorrence of the crime.  The Court must not only  

keep in view the rights of the criminal but also the rights of the victim of the  

crime  and  the  society  at  large  while  considering  the  imposition  of  

appropriate punishment.

22. Similar view has also been expressed in  Ravji v.  State of Rajasthan,  

(1996 (2) SCC 175). It has been held in the said case that it is the nature and  

gravity  of  the  crime  but  not  the  criminal,  which  are  germane  for  

consideration of appropriate punishment in a criminal trial.  The Court will  

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be failing in its duty if appropriate punishment is not awarded for a crime  

which has been committed not only against the individual victim but also  

against  the  society  to  which  the  criminal  and  victim  belong.   The  

punishment to be awarded for a crime must not be irrelevant but it should  

conform to and be consistent with the atrocity and brutality with which the  

crime has  been perpetrated,  the  enormity  of  the  crime warranting  public  

abhorrence and it should “respond to the society’s cry for justice against the  

criminal”. If for extremely heinous crime of murder perpetrated in a very  

brutal manner without  any provocation, most deterrent  punishment  is not  

given, the case of deterrent punishment will lose its relevance.

23. These  aspects  have  been  elaborated  in  State  of  M.P. v.  Munna  

Choubey [2005 (2) SCC 712].

24. In  Bachan  Singh v.  State  of  Punjab [1980  (2)  SCC  684]  a  

Constitution  Bench of this  Court  at  para 132 summed up the position  as  

follows: (SCC p.729)

“132.  To  sum  up,  the  question  whether  or  not  death  penalty  serves  any  penological  purpose  is  a  difficult,  complex  and  intractable  issue.  It  has  evoked  strong,  divergent  views.  For  the  purpose  of  testing  the  

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constitutionality of the impugned provision as to death  penalty  in  Section  302,  Penal  Code  on  the  ground  of  reasonableness in the light of Articles 19 and 21 of the  Constitution,  it  is  not  necessary  for  us  to  express  any  categorical opinion, one way or the other, as to which of  these  two  antithetical  views,  held  by  the  Abolitionists  and Retentionists,  is  correct.  It  is  sufficient  to say that  the very fact that persons of reason,  learning and light  are rationally and deeply divided in their opinion on this  issue,  is  a  ground  among  others,  for  rejecting  the  petitioners’ argument that  retention of death penalty in  the impugned provision, is totally devoid of reason and  purpose. If, notwithstanding the view of the Abolitionists  to the contrary, a very large segment of people, the world  over,  including  sociologists,  legislators,  jurists,  judges  and administrators still  firmly believe in the worth and  necessity  of  capital  punishment  for  the  protection  of  society,  if  in  the  perspective  of  prevailing  crime  conditions  in  India,  contemporary  public  opinion  channelised  through  the  people’s  representatives  in  Parliament,  has  repeatedly  in  the  last  three  decades,  rejected all attempts, including the one made recently, to  abolish or specifically restrict the area of death penalty,  if  death penalty is  still  a  recognised  legal  sanction  for  murder or some types of murder in most of the civilised  countries  in  the  world,  if  the  framers  of  the  Indian  Constitution  were fully aware — as we shall  presently  show they were — of the existence of death penalty as  punishment for murder, under the Indian Penal Code, if  the  35th  Report  and  subsequent  reports  of  the  Law  Commission suggesting retention of death penalty, and  recommending revision of the Criminal Procedure Code  and the insertion of the new Sections 235(2) and 354(3)  in  that  Code  providing  for  pre-sentence  hearing  and  sentencing procedure on conviction for murder and other  capital offences were before Parliament and presumably  considered by it when in 1972-73 it took up revision of  the  Code  of  1898  and  replaced  it  by  the  Code  of  Criminal Procedure, 1973, it is not possible to hold that  

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the  provision  of  death  penalty  as  an  alternative  punishment  for  murder,  in  Section  302,  Penal  Code is  unreasonable and not in the public interest.  We would,  therefore,  conclude  that  the  impugned  provision  in  Section 302, violates neither the letter nor the ethos of  Article 19."

25. Similarly, in Machhi Singh v. State of Punjab [1983 (3) SCC 470] in  

para 38 the position was summed up as follows: (SCC p. 489)

“38.  In  this  background  the  guidelines  indicated  in  Bachan Singh's case (supra) will  have to be culled out  and applied to the facts of each individual case where the  question  of  imposing  of  death  sentence  arises.  The  following propositions emerge from Bachan Singh's case  (supra):

(i)  The  extreme  penalty  of  death  need  not  be  inflicted  except  in  gravest  cases  of  extreme  culpability.

(ii)  Before  opting  for  the  death  penalty  the  circumstances of the ‘offender’ also require to be  taken  into  consideration  along  with  the  circumstances of the ‘crime’.

(iii)  Life  imprisonment  is  the  rule  and  death  sentence  is  an  exception.  In  other  words  death  sentence  must  be  imposed  only  when  life  imprisonment  appears  to  be  an  altogether  inadequate  punishment  having  regard  to  the  relevant circumstances of the crime, and provided,  and only provided, the option to impose sentence of  imprisonment  for  life  cannot  be  conscientiously  

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exercised  having  regard  to  the  nature  and  circumstances  of  the  crime  and  all  the  relevant  circumstances.

(iv) A balance sheet of aggravating and mitigating  circumstances has to be drawn up and in doing so  the mitigating  circumstances  have to be accorded  full weightage and a just balance has to be struck  between  the  aggravating  and  the  mitigating  circumstances before the option is exercised."

26. The position was again reiterated in  Devender Pal Singh v.  State of  

NCT of Delhi [2002 (5) SCC 234 ] : (SCC p. 271, para 58)

“58.  From  Bachan  Singh's  case  (supra)  and  Machhi  Singh's case (supra) the principle culled out is that when  the  collective  conscience  of  the  community  is  so  shocked,  that  it  will  expect  the  holders  of  the  judicial  power centre to inflict death penalty irrespective of their  personal opinion as regards desirability or otherwise of  retaining death penalty, the same can be awarded. It was  observed:

The  community  may entertain  such  sentiment  in  the following circumstances:

(1) When the murder is committed in an extremely  brutal,  grotesque,  diabolical,  revolting,  or  dastardly  manner  so  as  to  arouse  intense  and  extreme indignation of the community. (2)  When the murder is  committed  for  a  motive  which evinces total depravity and meanness;  e.g.  

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murder by hired assassin for money or reward; or  cold-blooded murder for gains of a person vis-à- vis whom the murderer is in a dominating position  or in a position of trust; or murder is committed in  the course for betrayal of the motherland. (3)  When  murder  of  a  member  of  a  Scheduled  Caste  or  minority  community,  etc.  is  committed  not  for  personal  reasons  but  in  circumstances  which  arouse  social  wrath;  or  in  cases  of  ‘bride  burning’  or  ‘dowry  deaths’  or  when  murder  is  committed  in  order  to  remarry  for  the  sake  of  extracting dowry once again or to marry another  woman on account of infatuation.  (4) When the crime is enormous in proportion. For  instance  when  multiple  murders,  say  of  all  or  almost  all  the  members  of  a  family  or  a  large  number  of  persons  of  a  particular  caste,  community, or locality, are committed. (5)  When  the  victim  of  murder  is  an  innocent  child, or a helpless woman or old or infirm person  or  a person vis-à-vis  whom the murderer  is  in a  dominating position,  or a public figure generally  loved and respected by the community.”

27. If upon taking an overall global view of all the circumstances in the  

light of the aforesaid propositions and taking into account the answers to the  

questions  posed  by  way  of  the  test  for  the  rarest  of  rare  cases,  the  

circumstances  of  the  case  are  such  that  death  sentence  is  warranted,  the  

court would proceed to do so.

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28. What is culled out from the decisions noted above is that while  

deciding the question as to whether the extreme penalty of death sentence is  

to be awarded, a balance sheet of aggravating and mitigating circumstances  

has to be drawn up.

29. Lord Justice Denning, Master of the Rolls of the Court of Appeals in  

England said to the Royal Commission on Capital Punishment in 1950:

"Punishment  is  the  way in  which  society expresses  its  denunciation of wrong doing; and, in order to maintain  respect  for  the  law,  it  is  essential  that  the  punishment  inflicted for grave crimes should adequately reflect  the  revulsion felt by the great majority of citizens for them.  It is a mistake to consider the objects of punishments as  being  a  deterrent  or  reformative  or  preventive  and  nothing  else...  The  truth  is  that  some  crimes  are  so  outrageous that society insists on adequate punishment,  because  the  wrong  doer  deserves  it,  irrespective  of  whether it is a deterrent or not."

In J.J. Rousseau's The Social Contract written in 1762,  he says the following:

Again, every rogue who criminously attacks social rights  becomes,  by  his  wrong,  a  rebel  and  a  traitor  to  his  fatherland. By contravening its laws, he ceases to be one  of  its  citizens:  he  even  wages  war  against  it.  In  such  circumstances,  the  State  and he cannot  both be saved:  one or the other must perish. In killing the criminal, we  destroy not so much a citizen as an enemy. The trial and  

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judgments are proofs that he broken the Social Contract,  and so is no longer a member of the State.

30. The case at hand falls in the rarest of rare category. The depraved acts  

of the accused call for only one sentence that is death sentence.

31. The above position  was highlighted  in  Bantu v.  The State  of  U.P.  

[2008(10) SCALE 336]

32. The murders were not only cruel, brutal but were diabolic.  The High  

Court has held that those who were guilty of rape and murder deserve death  

sentence,  while  those  who  were  convicted  for  murder  only  were  to  be  

awarded  life  sentence.  The  High  Court  noted  that  the  whole  incident  is  

extremely revolting, it shocks the collective conscience of the community  

and  the  aggravating  circumstances  have  outweighed  the  mitigating  

circumstances in the case of accused persons 1, 2 & 4; but held that in the  

case of others it was to be altered to life sentence.  The High Court itself  

noticed that five members of a family were brutally murdered, they were not  

known to the accused and there was no animosity towards them.  Four of the  

witnesses  were  of  tender  age,  they  were  defenseless  and  the  attack  was  

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without any provocation.  Some of them were so young that they could not  

resist any attack by the accused.  A minor girl  of about fifteen years was  

dragged in the open field, gang raped and done to death. There can be no  

doubt that the case at hand falls under the rarest of rare category.  There was  

no reason to adopt a different yardstick for A2, A3 and A5.  In fact, A3 was  

the main person.  He assaulted PW1 and took the money from the deceased.

33. Above being  the  position,  the appeal  filed  by the  accused  persons  

deserves dismissal,  which we direct and the State’s appeal deserves to be  

allowed.  A2, A3 and A5 are also awarded death sentence.  In essence all  

the six accused persons deserve death sentence.

…………………………………..J. (Dr. ARIJIT PASASYAT)

…………………………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, April 30, 2009          

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