REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 680  OF 2007

Mohan Anna Chavan ..Appellant

Versus

State of Maharashtra ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Death  sentence  awarded  by  learned  Sessions  Judge,

Satara having  been affirmed in appeal and in the reference

made under Section 366 of the Code of Criminal Procedure,

1973 (in short the ‘Code’) by a Division Bench of the Bombay

High  Court  this  appeal  has  been  filed.   Appellant  was

convicted  for  offences  punishable  under  Sections  363,  376,

302 and 201 of  the  Indian Penal  Code,  1860  (in  short  the

‘IPC’).   

2. Two young girls who had not even seen ten summers in

life were the victims of the sexual assault and animal lust of

the accused appellant.   They were not only raped but were

murdered  by  the  accused  appellant.   This  is  not  the  first

occasion when the appellant has been convicted for rape of

minor  girls.  Earlier  in  Sessions  Case  No.145  of  1990,  the

appellant was convicted by Learned IIIrd Additional Sessions

Judge,  Thane  by  judgment  dated  12th June,  1989  for

kidnapping  a  minor  girl  and  committing  rape  on  her.

Strangely in that case the trial court had sentenced him to

imprisonment for two years in each count. Thereafter accused

was  again  convicted  in  Sessions  Case  No.162  of  1989  for

having  raped  a  minor  girl  of  less  than  nine  years  on

28.7.1989.  He  was  convicted  by  learned  IIIrd  Additional

Sessions Judge, Satara and sentenced to ten years rigorous

imprisonment.  He  was  released  after  completion  of  said

2

sentence  and thereafter  continued  his  degraded  acts.   Two

girls; one was aged about five years and the other about ten

years  were  raped  which  formed  the  subject  matter  of

consideration in this appeal.

3. Prosecution version as unfolded during trial is as follows:

The  family  of  the  complainant  Jaysing  Dinkar  Jadhav

(P.W.10) lived at Gulamb in the locality of homeless people. He

is  the  brother  of  the  grandfather  of  deceased  Neelam  and

Gauri.  The  complainant  has  one  brother  named  Vinayak.

Ramdas Vinayak Jadhav (P.W.13) is the son of Vinayak. He

and his family members lived jointly at Gulumb at the time of

the  incident.  Deceased  Gauri  was  the  daughter  of  Ramdas

Jadhav. At the relevant time, the complainant and other son

of Vinayak i.e. Chandrakant were living at Khandala. Neelam

is  the  daughter  of  Chandrakant  but  she  was  staying  at

Gulumb for the purpose of education. She was studying in Ist

standard, whereas, Gauri was studying in 4th   standard.  They

3

were all residing in Beghar Vasti i.e. area of homeless people

at Gulumb.  Accused Mohan Anna Chavan was also residing

alongwith  his  wife  Manda  Chavan  (P.W.7)  and  daughter

Reshma  (P.W.8)  in  the  said  locality  of  homeless  people  at

Gulumb.  His house was next to the house of Ramdas Jadhav

and Tanaji Jadhav.

Tanaji Jadhav (P.W.5} was the cousin brother of both

Neelam and Gauri. He was also residing in Beghar vasti. On

the night intervening in between 12.12.1999 to 13.12.1999

at about 2.a.m. Tanaji (P.W.5) had accompanied his wife for

answering nature's call. At that time, the accused arrived at

Gulumb from Bombay. He asked Tanaji to go home and told

Tanaji  that  he  will  wait  there.  Thereupon,  there  was  a

quarrel between the two. Then accused left from there. On

the next day i.e. on 14.12.1999 at about 1.30 p.m. there was

quarrel between the accused and his wife Manda (P.W. 7). At

that time Tahaji  had peeped into the house and thereafter

there was a quarrel between the accused and Tanaji. There

4

was a scuffle between the two. At that time, the accused told

Tanaji that he would settle the matter in the evening.

On  the  same  day  in  the  evening  at  about  6.00  p.m.

Reshma (P.W.8) and accused had gone to the grocery shop of

Sunil  (P.W.  6)  for  purchase  of  grocery  articles,  Reshma  as

noted above is the daughter of the accused.  Similarly, at the

same time Neelam and Gauri  were also  sent  to the grocery

shop for purchase of dry coconut, by their family members.

The girls met the accused and Reshma and Gauri asked him

to give sweets (Khau) to them. The accused said that he did

not have change and the accused asked Gauri and Neelam to

accompany him. So saying, he took both the girls with him. He

thereafter  committed  rape  on  both  the  girls  and  murdered

them.  He threw the dead body of Neelam in the well which is

situated in the field of  the father of Sakhrarn Bhiku Yadav

(PW11). He concealed the dead body of Gauri in a ‘Kalkache

Bet’ after strangulating her. The accused thereafter arrived at

village  Gulumb  on  14.12.1999  in  the  morning  and  at  that

time, the villagers including the prosecution witness Ramdas

5

Jadhav  (P.W.  13),  Tanaji  Jadhav  (P.W.  5)  Sakharam Yadav

(PW11) and Rajendra Sakhpal (PW12) had caught hold of the

accused and tied him to a pillar of a water-tank in the locality

of  Homeless  people,  as  they  suspected  that  he  would  run

away,  because  on  interrogation,  the  accused  told  them  to

search in the hilly area of Chandak. The said information was

given to police on telephone.  Some of the villagers had gone in

search of both the girls in the hilly area but the girls could not

be found and ultimately, the accused made  an extra  judicial

confession that he had murdered Neelam and thrown the dead

body of Neelam into a well. Meanwhile, the police had arrived.

The accused led the police to the well and the dead-body of

Neelam was found floating in the water of the well and it was

taken  out.  Thereafter,  the  inquest  panchnama  (Exhibit-15)

was  prepared  in presence  of  panchas  by  PSI  Deshpande

(PW.15).  He  had  also  prepared  the  panchnama  of  the  well

(Exhibit-34). The dead-body of Neelam was forwarded to the

Medical Officer, for the purpose of post-mortem examination.

The accused was taken to the police station as panchnama of

6

his arrest and seizure of blood stained clothes which were on

his  person  at  the  time  of  arrest  was  prepared.  He  was

interrogated  in  the  presence  of`  panch  witnesses  including

panch  witness  (PW1),  Mohammed  Rafik  Sayyed  Mulla.  At

about  2.00  p.m  accused  stated  that  he  had  concealed  the

dead body of Gauri near Kalkache-Bet near Chauyndi stream

and he was ready to point out the same and he also stated

that he would show the spots where he had molested the two

girls.  Accordingly this information was reduced into writing in

the form of memorandum (Exh.31) and then the accused led

the police  party and panch witnesses  and the accused had

showed  the  places where he had committed rape on Neelam

and Gauri.  At the spot where he committed rape on Neelam,

the  earth  was  found  disturbed  and  the  earth  was  found

bloodstained,  pieces  of  green  bangles  and half  burnt  Bidis,

were also found on the spot, which  were duly  seized by the

Police.  At  the  spot  where  he  committed  rape  on Gauri,  the

earth and some leaves of hybrid plant were found stained with

blood.   Thereafter, the accused led them to one Kalkache-Bet

7

and showed the dead body of Gauri which was concealed in

the  "Kalkache-bet"  i.e.  a  place  where  bamboo  trees  and

bushes had grown thickly together. Accordingly the discovery

panchnama (Exh.32) was prepared and inquest panchnama of

the  dead  body  of  Gauri  was  prepared  as  per  panchnama

(Exhibit-16). Ligature marks were seen on the neck of Gauri

which were noted in  the  inquest  panchnama.  Thereafter,

the dead body of Gauri was forwarded to the medical officer

for the purpose of post mortem examination.  After the arrest

the accused was sent for medical examination. And his nail

clippings and blood sample was obtained and that was sent to

the Chemical Analyser. On 25.12.1999, the accused was again

interrogated  in  presence  of  the  panch  witnesses  including

Shivaji  Nalawada  (P.W.3)  and  the  accused  had  furnished

information that he had concealed the frocks of both the girls

in the bushes near Chaundi stream and he was ready to point

out the same. This information was reduced into writing in the

form  of  memorandum  (Exh.  37).  Pursuant  to  the  said

information, two frocks came to be recovered at the instance

8

of  the  accused.  After  the  investigation was over  the  charge

sheet came to be filed.

15 witnesses were examined to further the prosecution

version.  This was a case based on circumstantial evidence.

Prosecution relied on the following circumstances to fasten

the guilt on the accused appellant:

“1. Last seen.

2. Motive

3. Seizure of blood stained clothes which were on the

person of the accused at the time of arrest.

4. C.A. report which shows that shirt and pant of the

accused were stained with blood Group A which is

blood group of both the deceased.

5. Blood in the nail clippings of the accused was of ‘A’

group which is the blood group of both the

deceased.

9

6. Recovery of dead body of Gauri at the instance of

the accused.

7. Accused pointing out the places where rape was

committed on Neelam and Gauri where the earth

was found stained with blood of “A” group and other

incriminating articles were seized.

8. Extra-judicial confession to PW 11.

9. Recovery of frock of both the deceased girls at the

instance of the accused.

10. Accused pointing out the well wherein he had

thrown Neelam.

11. False explanation by accused.”

Trial  court  considered  all  the  circumstances  to  be  a

complete  chain  to  unerringly  pointing  at  the  guilt  of  the

accused appellant.  Accordingly, the conviction was recorded.

Appellant  was  awarded  death  sentence  for  the  offence

punishable under Section 302 IPC while custodial sentences

were imposed for the offences punishable under Sections 363,

10

376 and 201 IPC.   Appellant  questioned  correctness  of  the

judgment  before  the  High  Court  and  as  noted  above  a

reference  was made  by the  trial  court  in view of  the death

sentence imposed.  

The High Court found that all the circumstances except

the  alleged  confession  to  have  been  established.  After

analyzing the evidence the High Court found the evidence to

be  cogent  and  credible  and  affirmed  the  death  sentence

looking into the ghastly acts committed by the appellant.

In  support  of  the  appeal  learned  counsel  for  the

appellant  submitted  that  the  case  being  one  which rest  on

circumstantial evidence, a case for conviction is not made out.

Alternatively it is submitted that death sentence was not the

proper sentence.

Learned counsel  for the respondent on the other hand

supported the judgment of the trial court and the High Court

11

and submitted that this was a case belonging to the rarest of

rare  category  and  death  sentence  was  the  appropriate

sentence.

4. Before analyzing factual aspects it may be stated that for

a crime to be proved it is not necessary that the crime must be

seen to have been committed and must, in all circumstances

be proved by direct ocular evidence by examining before the

Court  those  persons  who  had  seen  its  commission.  The

offence  can be  proved  by  circumstantial  evidence  also.  The

principal fact or factum probandum may be proved indirectly

by means of certain inferences drawn from factum probans,

that  is,  the  evidentiary  facts.  To  put  it  differently

circumstantial evidence is not direct to the point in issue but

consists of evidence of various other facts which are so closely

associated with the fact in issue that taken together they form

a  chain  of  circumstances  from  which  the  existence  of  the

principal fact can be legally inferred or presumed.  

12

5. 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

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

13

negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

6. 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....”.

7. 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:  

14

“(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.”

8. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ

1104),  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

15

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

established  must  be  consistent  only  with  the  hypothesis  of

guilt.

9. 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

16

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”.

10. 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.   

11. 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

17

probability the act must have been done by the accused.”

12. 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;

18

(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.     

13. In the instant case interestingly PW 7 and PW 8 are the

key witnesses.  PWs. 7 & 8 are the wife and daughter of the

accused appellant.

14. In Joseph and Poulo v. State of Kerala [2000(5) SCC 197]

it was, inter alia, held as follows:

“The  formidable  incriminating  circumstances against the appellant, as far as we could see, are that the deceased was taken away from the convent by the appellant under a false pretext and  she  was  last  seen  alive  only  in  his company  and  that  it  is  on  the  information furnished  by  the  appellant  in  the  course  of investigation that jewels of the deceased which

19

were  sold  to  PW  11  by  the  appellant,  were seized.”

“The incriminating circumstances  enumerated above unmistakably and inevitably lead to the guilt  of  the  appellant  and  nothing  has  been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner  in consonance  with the innocence at any rate of the appellant.  During the  time  of  questioning  under  Section  313 Cr.P.C.   the  appellant  instead  of  making  at least  an  attempt  to  explain  or  clarity  the incriminating  circumstances  inculpating  him, and  connecting  him  with  the  crime  by  his adamant attitude  of  total  denial  of  everything when those circumstances were brought to his notice  by  the  Court  not  only  lost  the opportunity  but stood self-condemned.   Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody  else,  they  being  personally  and exclusively  within  his  knowledge.   Of  late, courts have, from the falsity of the defence plea and  false  answers  given  to  court,  when questioned,  found  the  missing  links  to  be supplied  by  such answers  for  completing  the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.(See:  State  of  Maharashtra  v. Suresh).   That  missing  link  to  connect  the accused  appellant,  we  find  in  this  case provided  by  the  blunt  and  outright  denial  of every  one  and  all  that  incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts  proved,  connect  the  accused  with  the

20

death and the cause of the death of Gracy and for robbing her of her jewellery worn by her — MOs 1 to 3, under Section 392. The deceased meekly  went  with  the  accused  from  the Convent  on account  of  the  misrepresentation made  that  her  mother  was  seriously  ill  and hospitalised  apparently  reposing  faith  and confidence  in  him  in  view  of  his  close relationship — being the husband of her own sister, but the appellant seems to have not only betrayed  the  confidence  reposed  in  him  but also  took  advantage  of  the  loneliness  of  the hapless woman. The quantum of  punishment imposed  is  commensurate  with the  gravity  of the  charges  held  proved  and  calls  for  no interference in our hands, despite the fact that we  are  not  agreeing  with  the  High  Court  in respect  of  the  findings  relating  to  the  charge under Section 376.

15. In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it

was, inter alia, observed as follows:

“From  the  evidence  of  PWs.  1,6,7  &  8  the prosection  has  satisfactorily  established  that the appellant was last seen with the deceased on  30.4.91.   The  appellant  either  in  his Section 313 Cr.P.C. statement or by any other evidence has not established when and where he  and  the  deceased  parted  company  after being last seen.”  

21

16. The other circumstances established were the chemical

analyst’s  report  of  the  clothes  and  nail  clippings  of  the

accused,  the  recovery  of  the  dead  bodies  pursuant  to  the

disclosure made in terms of Section 27 of the Indian Evidence

Act, 1872 (in short the ‘Evidence Act’), recovery of the frocks at

the instance of the accused, false explanation given and the

plea of alibi which has been rightly discarded by the courts

below.   The prosecution has established that both the girls

were  missing  since  about  6  p.m.  on   3.12.1999  and  the

accused  appellant  was  seen  in  the  company  of  the  girl  till

morning  of  14.12.1994  and  soon  thereafter  dead  body  of

Neelam was found and thereafter the dead body of Gauri was

found.   The  post  mortem  of  Neelam  was  conducted  on

14.12.1994 between 9.30 P.M. to 10.30 P.M. and post mortem

of Gouri was conducted on 14.12.1994 between 10.30 P.M. to

11.30 P.M.  The evidence of Dr.-PW 9 clearly shows that the

girls according to him were murdered within 36 hours and the

rape has been committed on them within 48 hours before the

22

time of post mortem. Therefore, the time given by the doctors

fits with the prosecution case of timings relating to last seen.

The prosecution has been able to establish the accusations.

17. The offence of rape occurs in Chapter XVI of IPC. It is an

offence affecting the human body. In that Chapter, there is a

separate  heading  for  ‘Sexual  offence’,  which  encompasses

Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. ‘Rape’ is

defined  in  Section  375.  Sections  375  and  376  have  been

substantially  changed  by  Criminal  Law  (Amendment)  Act,

1983, and several new sections were introduced by the new

Act,  i.e.  376-A,  376-B,  376-C  and  376-D.   The  fact  that

sweeping  changes  were  introduced  reflects  the  legislative

intent to curb with iron hand, the offence of rape which affects

the dignity  of  a  woman. The  offence  of  rape  in its  simplest

term is ‘the ravishment of a woman, without her consent, by

force, fear or fraud’, or as ‘the carnal knowledge of a woman

by force against her will’.  ‘Rape’  or ‘Raptus’  is when a man

hath carnal knowledge of a woman by force and against her

23

will (Co. Litt. 123-b); or as expressed more fully,’ rape is the

carnal knowledge of any woman, above the age of particular

years, against her will; or of a woman child, under that age,

with or against her will’ (Hale PC 628). The essential words in

an indictment for rape are rapuit and carnaliter cognovit; but

carnaliter cognovit, nor any other circumlocution without the

word rapuit, are not sufficient in a legal sense to express rape;

1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of

rape,  ‘carnal  knowledge’  means  the  penetration  to  any  the

slightest  degree  of  the  organ  alleged  to  have  been  carnally

known by the male organ of generation (Stephen’s “Criminal

Law” 9th Ed. p.262). In ‘Encyclopoedia of Crime and Justice’

(Volume 4, page 1356) it is stated “......even slight penetration

is  sufficient  and  emission  is  unnecessary”.  In  Halsbury’s

Statutes of England and Wales (Fourth Edition) Volume 12, it

is  stated  that  even  the  slightest  degree  of  penetration  is

sufficient  to  prove  sexual  intercourse.  It  is  violation  with

violence of the private person of a woman-an-outrage by all

means. By the very nature of the offence it is an obnoxious act

24

of the highest order.  

18. The physical scar may heal up, but the mental scar will

always remain. When a woman is ravished, what is inflicted is

not  merely  physical  injury  but  the  deep  sense  of  some

deathless shame.

19. The law regulates 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  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”

25

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

26

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.”

20. 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).                    

21. The criminal law adheres in general to the principle of

proportionality  in  prescribing  liability  according  to  the 27

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 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.  

22. 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

28

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,  uniformly

disproportionate  punishment  has  some  very  undesirable

practical consequences.            

23. 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

29

has been very aptly indicated in Dennis Councle MCG Dautha

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.

24. 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

30

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.

25. 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 such offences will be result-wise counter productive in the

long run and against societal interest which needs to be cared

31

for  and  strengthened  by  string  of  deterrence  inbuilt  in  the

sentencing system.  

26. 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.

27. Similar view has also been expressed in Ravji v. State of

Rajasthan, (1996 (2) SCC 175). It has been held in the said

32

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 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.

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

Munna Choubey [2005 (2) SCC 712].

33

29. 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 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

34

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  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."

30. 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)

35

“38.  In  this  background  the  guidelines indicated  in  Bachan  Singh's  case  (surpa) 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  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

36

struck between the aggravating  and the mitigating  circumstances  before  the option is exercised."

31. 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. 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

37

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.

32. 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 38

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

court would proceed to do so.

33. 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.

34. This position is highlighted in  Union of India & Ors. v.

Devendra Nath Rai [ 2006 (2) SCC 243].

35. The case at hand falls in the rarest of rare category. The

past  instances  highlighted  above,  the  depraved  acts  of  the

accused call for only one sentence that is death sentence.

36. Looked  at  from  any  angle  the  judgment  of  the  High

Court, confirming the conviction and sentence imposed by the

trial court, do not warrant any interference.

39

37. We  record  our  appreciation  for  the  able  assistance

rendered by learned amicus curiae in the true spirit of friend

and officer of the Court.

38. The appeal fails and is dismissed.

........................................ ...J.

(Dr. ARIJIT PASAYAT)     

…….………...........................J. (P. SATHASIVAM)

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

New Delhi, May 16, 2008

40