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CASE NO.: Appeal (crl.)  1302 of 2006

PETITIONER: Bablu @ Mubarik Hussain                         \005Appellant

RESPONDENT: State of Rajasthan                              \005Respondent

DATE OF JUDGMENT: 12/12/2006

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 4765 of 2006)

Dr. ARIJIT PASAYAT, J

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Rajasthan High Court at Jodhpur  confirming the death sentence awarded to the appellant for  commission of offence punishable under Section 302 of the  Indian Penal Code, 1860 (in short the ’IPC’). The trial Court  had  imposed a death sentence and, therefore, made  a  reference for confirmation of death sentence by the High Court  in terms of Section 366 of the Code of Criminal Procedure,  1973 (in short the ’Code’).  

       Appellant also filed an appeal and both the case under  reference and the appeal were taken up together and disposed  of by a common judgment.  

       According to the prosecution accused killed his wife-  Anisha,   three daughters namely, Gulfsha, Nisha and Anta @  Munni aged 9 years, 6 years and 4 years respectively and son  Babu aged 2 = years.  The Additional Sessions Judge (Fast  Track), Nagaur had found the charge for commission of offence  under Section 302 IPC to have been proved and imposed the  death sentence.  

       Prosecution version in a nutshell is as follows:  On 10.12.2005 at about 6 A.M. Alladeen (PW-1)  submitted a written report at Police Station, Nagaur stating  inter alia that In the evening of 9.12.2005 the appellant Bablu  gave beating to his wife and children. But they were rescued  on his intervention. He described Bablu as a person of  notorious character. It was further averred that in the morning  at about 5 a.m. his brother appellant Bablu came out of the  house shouting and making declaration that he has killed all  the five bastards by strangulation one by one. He killed his  wife Anisha, daughters Gulfsha, Nisha, Anta @ Munni and son  Babu. The dead bodies were found placed on the mattresses  tying the thumbs of each leg of the dead bodies by thread. On  this information police registered a case for offence punishable  under Section 302 I.P.C. and proceeded with investigation. All  the dead bodies were sent for postmortem. A Medical Board  consisting of three doctors conducted the postmortem of all  the five dead bodies. The appellant was arrested. After usual  investigation police laid charge-sheet against the appellant for

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offence punishable under Section 302 I.P.C. On being  committed the appellant was tried of the charge of offence  punishable under Section 302 I.P.C. by the court of Additional  Sessions Judge (Fast Track), Nagaur. The trial court on  consideration of the evidence led by the prosecution found the  appellant guilty of offence under Section 302 I.P.C.  

       The trial Court relied upon the following circumstances  to find the accused guilty.  

(1) Extra judicial confession made by the  appellant before Murad Khan (PW-1),  Bablu  Kalva (PW-2),  Mohd Sharif (PW-3) and   Alladeen (PW-4). (2) The presence of the appellant in the house  wherein the alleged incident took place. (3) Recovery of ear ring of the wife from the  possession of the appellant.

       At the time of hearing the reference and the appeal the  primary stand taken by the accused appellant was that the  extra judicial confession relied upon by the prosecution is not  correct.  It was submitted that the alleged confession publicly  standing on a platform is highly improbable. The High Court  found that the evidence of Murad Khan (PW-1) and Bablu (PW- 2) was cogent and credible. PW-1 was a neighbour and PW-2 is  the brother of the accused-appellant. There is no reason as to  why they would falsely implicate the accused-appellant by  making an untruthful statement. Added to that, evidence of  PW-1 about the behaviour of the appellant was relevant. The  third circumstance was the recovery of ornament from the  possession of the appellant. The circumstances highlighted by  the prosecution according to the High Court presented a  complete chain of circumstances. Though it was submitted by  the accused-appellant that even if the prosecution case was  accepted in its totality, there was no special reason to impose  the death sentence. The High Court considered this plea in the  background of what has been stated by this Court in Machhi  Singh and Ors. v. State of Punjab (1983 (3) SCC 470) and  Bachan Singh v. State of Punjab (1980 (2) SCC 684). Reference  was also made to the decision in State of Rajasthan v. Kheraj  Ram (2003 (8) SCC 224). The High Court was of the view that  the appellant had acted in a most cruel and diabolic manner.  He deliberately planned and meticulously executed the same.   There was not even any remorse for such gruesome acts.  On  the contrary, he was satisfied with what he had done. He  made a declaration of his act of abusing his wife and children.  Accordingly, the death sentence was confirmed.  

       The stand taken by the accused-appellant before the  High Court was re-iterated in this appeal. Additionally, it was  stated that the accused was in a state of drunkenness and did  not know the consequences of what he did and, therefore,  death sentence should not have been awarded.  

       On the contrary, learned counsel for the State submitted  that the cruel and diabolic acts of the accused show that he  does not deserve any leniency so far as the sentence is  concerned. Drunkenness cannot be an excuse for such cruel  and inhuman acts.  

It has been consistently laid down by this Court that  where a case rests squarely on circumstantial evidence, the  inference of guilt can be justified only when all the  incriminating facts and circumstances are found to be

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incompatible with the innocence of the accused or the guilt of  any other person. (See Hukam Singh v. State of Rajasthan  (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad  (AIR 1956 SC 316); Earabhadrappa v. State of  Karnataka   (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR  1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987  SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989  SC 1890). The circumstances from which an inference as to  the guilt of the accused is drawn have to be proved beyond  reasonable doubt and have to be shown to be closely  connected with the principal fact sought to be inferred from  those circumstances. In Bhagat Ram v. State of Punjab (AIR  1954 SC 621), it was laid down that where the case depends  upon the conclusion drawn from circumstances the  cumulative effect of the circumstances must be such as to  negative the innocence of the accused and bring the offences  home beyond any reasonable doubt.

       We may also make a reference to a decision of this Court  in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC  193, wherein it has been observed thus:

       "In a case based on circumstantial  evidence, the settled law is that the  circumstances from which the conclusion of  guilt is drawn should be fully proved and  such circumstances must be conclusive in  nature. Moreover, all the circumstances  should be complete and there should be no  gap left in the chain of evidence. Further the  proved circumstances must be consistent  only with the hypothesis of the guilt of the  accused and totally inconsistent with his  innocence....".

In Padala Veera Reddy v. State of A.P. and Ors.  (AIR  1990 SC 79), it was laid down that when a case rests upon  circumstantial evidence, such evidence must satisfy the  following tests:         (1)     the circumstances from which an inference of guilt  is sought to be drawn, must be cogently and firmly  established; (2)     those circumstances should be of a definite  tendency unerringly pointing towards guilt of the  accused; (3)     the circumstances, taken cumulatively should form  a chain so complete that there is no escape from the  conclusion that within all human probability the crime  was committed by the accused and none else; and     (4)     the circumstantial evidence in order to sustain  conviction must be complete and incapable of  explanation of any other hypothesis than that of the guilt  of the accused and such evidence should not only be  consistent with the guilt of the accused but should be  inconsistent with his innocence.

       In State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC  840), it was pointed out that great care must be taken in  evaluating circumstantial evidence and if the evidence relied  on is reasonably capable of two inferences, the one in favour of  the accused must be accepted.  It was also pointed out that  the circumstances relied upon must be found to have been  fully established and the cumulative effect of all the facts so

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established must be consistent only with the hypothesis of  guilt.

       Sir Alfred Wills in his admirable book "Wills’  Circumstantial Evidence" (Chapter VI) lays down the following  rules specially to be observed in the case of circumstantial  evidence: (1) the facts alleged as the basis of any legal  inference must be clearly proved and beyond reasonable doubt  connected with the factum probandum; (2) the burden of proof  is always on the party who asserts the existence of any fact,  which infers legal accountability; (3) in all cases, whether of  direct or circumstantial evidence the best evidence must be  adduced which the nature of the case admits; (4) in order to  justify the inference of guilt, the inculpatory facts must be  incompatible with the innocence of the accused and incapable  of explanation, upon any other reasonable hypothesis than  that of his guilt, (5) if there be any reasonable doubt of the  guilt of the accused, he is entitled as of right to be acquitted".

       There is no doubt that conviction can be based solely on  circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by  the this Court as far back as in 1952.     In Hanumant Govind Nargundkar and Anr. V. State of  Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed  thus:

"It is well to remember that in cases where the  evidence is of a circumstantial nature, the  circumstances from which the conclusion of  guilt is to be drawn should be in the first  instance be fully established and all the facts  so established should be consistent only with  the hypothesis of the guilt of the accused.   Again, the circumstances should be of a  conclusive nature and tendency and they  should be such as to exclude every hypothesis  but the one proposed to be proved. In other  words, there must be a chain of evidence so  far complete as not to leave any reasonable  ground for a conclusion consistent with the  innocence of the accused and it must be such  as to show that within all human probability  the act must have been done by the accused."

        A reference may be made to a later decision in Sharad  Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC  1622).  Therein, while dealing with circumstantial evidence, it  has been held that onus was on the prosecution to prove that  the chain is complete and the infirmity of lacuna in  prosecution cannot be cured by false defence or plea.  The  conditions precedent in the words of this Court, before  conviction could be based on circumstantial evidence, must be  fully established. They are:

(1)     the circumstances from which the conclusion of  guilt is to be drawn should be fully established.  The  circumstances concerned must or should and not may  be established; (2)     the facts so established should be consistent only  with the hypothesis of the guilt of the accused, that is to  say, they should not be explainable on any other  hypothesis except that the accused is guilty;

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(3)     the circumstances should be of a conclusive nature  and tendency; (4)     they should exclude every possible hypothesis  except the one to be proved; and (5)     there must be a chain of evidence so compete as not  to leave any reasonable ground for the conclusion  consistent with the innocence of the accused and must  show that in all human probability the act must have  been done by the accused.          The only other thing which needs consideration is  whether death sentence as awarded by trial Court is proper.  

Section 302 IPC prescribes death or life imprisonment as  the penalty for murder. While doing so, the Code instructs the  court as to its application.  The changes which the Code has  undergone in the last three decades clearly indicate that  Parliament is taking note of contemporary criminological  thought and movement. It is not difficult to discern that in the  Code, there is a definite swing towards life imprisonment.  Death sentence is ordinarily ruled out and can only be  imposed for "special reasons", as provided in Section 354(3).   There is another provision in the Code which also uses the  significant expression "special reason". It is Section 361.   Section 360 of the 1973 Code re-enacts, in substance, Section  562 of the Criminal Procedure Code, 1898 (in short "the old  Code").  Section 361 which is a new provision in the Code  makes it mandatory for the court to record "special reasons"  for not applying the provisions of Section 360.  Section 361  thus casts a duty upon the court to apply the provisions of  Section 360 wherever it is possible to do so and to state  "special reasons" if it does not do so. In the context of Section  360, the "special reasons" contemplated by Section 361 must  be such as to compel the court to hold that it is impossible to  reform and rehabilitate the offender after examining the matter  with due regard to the age, character and antecedents of the  offender and the circumstances in which the offence was  committed.  This is some indication by the legislature that  reformation and rehabilitation of offenders and not mere  deterrence, are now among the foremost objects of the  administration of criminal justice in our country.  Section 361  and Section 354(3) have both entered the statute-book at the  same time and they are part of the emerging picture of  acceptance by the legislature of the new trends in criminology.   It would not, therefore, be wrong to assume that the  personality of the offender as revealed by his age, character,  antecedents and other circumstances and the tractability of  the offender to reform must necessarily play the most  prominent role in determining the sentence to be awarded.   Special reasons must have some relation to these factors,  Criminal justice deals with complex human problems and  diverse human beings.  A Judge has to balance the personality  of the offender with the circumstances, situations and the  reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of  Section 367(5) of the old Code, by the Criminal Procedure  Code (Amendment) Act, 1955 (26 of 1955) which came into  force on 1.1.1956, on a conviction for an offence punishable  with death, if the court sentenced the accused to any  punishment other than death, the reason why sentence of  death was not passed had to be stated in the judgment.  After  the amendment of Section 367(5) of the old Code by Act 26 of  1955, it is not correct to hold that the normal penalty of  imprisonment for life cannot be awarded in the absence of

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extenuating circumstances which reduce the gravity of the  offence.  The matter is left, after the amendment, to the  discretion of the court. The court must, however, take into  account all the circumstances, and state its reasons for  whichever of the two sentences it imposes in its discretion.   Therefore, the former rule that the normal punishment for  murder is death is no longer operative and it is now within the  discretion of the court to pass either of the two sentences  prescribed in this section; but whichever of the two sentences  he passes, the Judge must give his reasons for imposing a  particular sentence.  The amendment of Section 367(5) of the  old Code does not affect the law regulating punishment under  IPC.  This amendment relates to procedure and now courts are  no longer required to elaborate the reasons for not awarding  the death penalty; but they cannot depart from sound judicial  considerations preferring the lesser punishment.

Section 354(3) of the Code marks a significant shift in the  legislative policy underlying the old Code as in force  immediately before 1.4.1974, according to which both the  alternative sentences of death or imprisonment for life  provided for murder were normal sentences.  Now, under  Section 354(3) of the Code the normal punishment for murder  is imprisonment for life and death penalty is an exception.   The court is required to state the reasons for the sentence  awarded and in the case of death sentence "special reasons"  are required to be stated, that is to say, only special facts and  circumstances will warrant the passing of the death sentence.  It is in the light of these successive legislative changes in the  Code that the judicial decisions prior to the amendment made  by Act 26 of 1955 and again Act 2 of 1974 have to be  understood.

This Court in Ediga Anamma v. State of A.P. (1974 (4)  SCC 443) has observed : (SCC pp. 453-54, para 26)

"26. Let us crystallize the positive  indicators against death sentence under  Indian law currently. Where the murderer is  too young or too old, the clemency or penal  justice helps him. Where the offender suffers  from socio-economic, psychic or penal  compulsions insufficient to attract a legal  exception or to downgrade the crime into a  lesser one, judicial commutation is  permissible. Other general social pressures,  warranting judicial notice, with an  extenuating impact may, in special cases,  induce the lesser penalty.  Extraordinary  features in the judicial process, such as that  the death sentence has hung over the head of  the culprit excruciatingly long, may persuade  the court to be compassionate.  Likewise, if  others involved in the crime and similarly  situated have received the benefit of life  imprisonment or if the offence is only  constructive, being under Section 302, read  with Section 149, or again the accused has  acted suddenly under another’s instigation,  without premeditation, perhaps the court may  humanely opt for life, even like where a just  cause or real suspicion of wifely infidelity  pushed the criminal into the crime.  On the  other hand, the weapons used and the  manner of their use, the horrendous features

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of the crime and hapless, helpless state of the  victim, and the like, steel the heart of the law  for a sterner sentence.  We cannot obviously  feed into a judicial computer all such  situations since they are astrological  imponderables in an imperfect and  undulating society.  A legal policy on life or  death cannot be left for ad hoc mood or  individual predilection and so we have sought  to objectify to the extent possible, abandoning  retributive ruthlessness, amending the  deterrent creed and accenting the trend  against the extreme and irrevocable penalty of  putting out of life."

In Bachan Singh’s case (supra) it has been observed  that: (SCC p. 751, para 209)

"A real and abiding concern for the  dignity of human life postulates resistance to  taking a life through law’s instrumentality.   That ought not to be done save in the rarest  of rare cases when the alternative option is  unquestionably foreclosed."

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. In order to apply these guidelines, inter alia,  the  following questions may be asked and answered, (a) is there  something uncommon about the crime which renders  sentence of imprisonment for life inadequate and calls for a  death sentence?; and (b) are the circumstances of the crime  such that there is no alternative but to impose death sentence  even after according maximum weightage to the mitigating  circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the  question of death sentence is Machhi Singh’s case (supra).

In Machhi Singh (supra) and Bachan Singh (supra) cases  the guidelines which are to be kept in view when considering  the question whether the case belongs to the rarest of the rare  category were indicated.

In Machhi Singh case (supra) it was observed: (SCC p.  489, para 39)

The following questions may be asked and answered as a  test to determine the ’rarest of the rare’ case in which death  sentence can be inflicted:-

(a)     Is there something uncommon about the crime  which renders sentence of imprisonment for life  inadequate and calls for a death sentence?

(b)     Are the circumstances of the crime such that  there is no alternative but to impose death sentence even  after according maximum weightage to the mitigating  circumstances which speak in favour of the offender?

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   The following guidelines which emerge from Bachan  Singh’s case (supra) will have to be applied to the facts of each  individual case where the question of imposition of death  sentence arises: (SCC p. 489, para 38):-

(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. 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 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.    

In rarest of rare cases when 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, death sentence can be awarded. 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.  murder by hired assassin for money or reward or a  cold-blooded murder for gains of a person vis-‘-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

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or a person vis-‘-vis whom the murderer is in a  dominating position or a public figure generally  loved and respected by the community.                                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.  

A convict hovers between life and death when the  question of gravity of the offence and award of adequate  sentence comes up for consideration.  Mankind has shifted  from the state of nature towards a civilized society and it is no  longer the physical opinion of the majority that takes away the  liberty of a citizen by convicting him and making him suffer a  sentence of imprisonment.  Award of punishment following  conviction at a trial in a system wedded to the rule of law is  the outcome of cool deliberation in the court room after  adequate hearing is afforded to the parties, accusations are  brought against the accused, the prosecuted is given an  opportunity of meeting the accusations by establishing his  innocence.  It is the outcome of cool deliberations and the  screening of the material by the informed man i.e. the Judge  that leads to determination of the lis.

The principle of proportion between crime and  punishment is a principle of just desert that serves as the  foundation of every criminal sentence that is justifiable. As a  principle of criminal justice it is hardly less familiar or less  important than the principle that only the guilty ought to be  punished.  Indeed, the requirement that punishment not be  disproportionately great, which is a corollary of just desert, is  dictated by the same principle that does not allow punishment  of the innocent, for any punishment in excess of what is  deserved for the criminal conduct is punishment without guilt.         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 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 traffic  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.  

       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 a  single grave infraction that is thought to call for uniformly  drastic measures. Anything less than a penalty of greatest  severity for any serious crime is thought then to be a measure

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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,  uniformly disproportionate punishment has some very  undesirable practical consequences.            

       Section 85 IPC deals with act of a person incapable of  judgment by reason of intoxication caused against his will.  As  the heading of the provision itself shows, intoxication must  have been against his will and/or the thing which he  intoxicated was administered to him without his knowledge.   There is no specific plea taken in the present case about  intoxicant having administered without appellant’s knowledge.   The expression "without his knowledge" simply means an  ignorance of the fact that what is being administered to him is  or contains or is mixed with an intoxicant.              The defence of drunkenness can be availed of only when  intoxication produces such a condition as the accused loses  the requisite intention for the offence. The onus of proof about  reason of intoxication due to which the accused had become  incapable of having particular knowledge in forming the  particular intention is on the accused.  Basically, three  propositions as regards the scope and ambit of Section 85 IPC  are as follows: (i)     The insanity whether produced by  drunkenness or otherwise is a defence to  the crime charged; (ii)    Evidence of drunkenness which renders  the accused incapable of forming the  specific intent essential to constitute the  crime should be taken into account with  the other facts proved in order to  determine whether or not he had this  intent; and (iii)   The evidence of drunkenness falling short  of a proved incapacity in the accused to  form the intent necessary to constitute  the crime and merely establishing that  his mind is affected by drink so that he  more readily give to some violent passion,  does not rebut the presumption that a  man intends the natural consequences of  his acts.  

In the instant case, the plea of drunkenness can never be  an excuse for the brutal, diabolic acts of the accused. The trial  Court and the High Court have rightly treated the case to be  one falling in rarest of rare category thereby attracting the  death sentence.    

The brutal acts done by the accused-appellant are  diabolic in conception and cruel in execution.  The acts  were  not only brutal but also inhuman with no remorse for the  same.  Merely because he claims to be a drunk at the relevant  point of time, that does not in any way get diluted not because  of what is provided in Section 85 IPC but because one after  another five lives were taken and that too of four young  children.  This case squarely falls under the rarest of rare  category to warrant death sentence.  

       The appeal deserves dismissal which we direct.