REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 117 OF 2007   

Bantu …Appellant

Vs.

The State of U.P. …Respondent

J U D G M E N T

Dr.  ARIJIT PASAYAT, J.

1. Death sentence  awarded  by  learned  Special  Judge

EC Act/Additional Sessions Judge, Agra in Sessions

Trial No. 83 of 2004 having been  confirmed by the

Allahabad High Court in appeal and in the reference

made  under  Section  366  of  the  Code  of  Criminal

Procedure, 1973 (in short the ‘code’) this appeal has

been filed.  The appellant was convicted for offences

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punishable under Sections 364, 376 and 302 of the

Indian Penal Code, 1860 (in short the ‘IPC’).  The girl

who had not seen six summers in life was the victim

of  sexual  assault  and  animal  lust  of  the  accused

appellant.   She  was  not  only  raped  but  was

murdered by the accused appellant.

2. Prosecution version as unfolded during trial read as

follows:

The genesis of the prosecution case was the written

FIR  lodged  at  Police  Station  Tajganj  of  Agra  District  on

4.10.2003  at  10.45  PM  by  Naresh  Kumar  (PW  2).   The

occurrence took place at about 9.30 O’clock the same night in

village Basai Khurd within the said police station.  The victim

was an unfortunate  teenaged  girl Vaishali of  about 5 years.

She was the daughter of Vishal.

The broad features of the case as culled out from the

FIR and evidence brought on record is as follows:

There was “Devi Jagran” at the house of Chandrasen

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alias Taplu (PW 3) in village Basai Khurd in the eventful night.

A number of persons of the locality had assembled there.  The

informant- Naresh Kumar (PW2) alongwith his brother Vishal

and niece  Vaishali (hereinafter referred to as the ‘deceased’)

had also  gone  there.   Around  9  P.M.  the  accused  Bantu-a

neighbour  of  the  informant  reached  there.  After  exhibiting

playful and friendly gestures with Vaishali with whom he was

familiar before because of neighborhood, enticed her away on

the pretext of giving her a balloon.  Several persons including

Naresh Kumar (PW 2) and Nand Kishore (PW 6) saw him going

away  with  the  girl  from  the  place  of  “Devi  Jagran”.  When

Vaishali did not return for a long time, a frantic search was

made  to  trace  her  out  by  the  members  of  the  family.

Chandrasen alias Taplu (PW 3) and Sanjiv son of Daulat Ram

informed them that they had seen  the accused Bantu going

with Vaishali hoisted on his waist towards the pond.  Around

9.30 PM they reached near the field of one Dharma in which

grown  up  Dhaincha  plants  were  there.   With  the  help  of

torches  they  saw  that  the  accused  Bantu  was  thrusting  a

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stem/stick  of  Dhaincha  in  the  vagina  of  Vaishali  having

thrown her down.  An alarm was raised, by them and Bantu

was caught red  handed  in completely  naked  state.  Vaishali

was lying on the ground unconscious with a part of stem of

Dhaincha inserted in her vagina.  She was bleeding profusely.

She  had  other  injuries  also  on  her  person  and  was  not

responding at all.  She was instantly rushed to S.N. Medical

College,  Agra where the doctors pronounced her to be dead.

Upon interrogation, the accused Bantu allegedly admitted that

after committing the rape he inserted stem/stick in her vagina

to murder her.

On the  case  being  registered,  the  investigation  was

taken up by SHO Dalip Kumar Mittal (PW 7). Major part of the

investigation  was  conducted  by  him  but  the  charge  sheet

came to be submitted by subsequent Investigating officer R.K.

Dwivedi (PW 8).

A panel of two doctors headed by Dr. R.S. Chahar (PW

1) conducted post-mortem over the dead body of the deceased

on  5.10.2003  at  3  P.M.  The  deceased  was aged  about  five

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years  and  about  one  day  had  passed  since  she  died.  The

following ante mortem injuries were found on her person:

1. Multiple contusion over face and head,

more  on right side,  ranging in size  from .5 cm

to .5cm x 3cm.  Lips were contused with swelling

multiple nail marks present over left side on her

neck and behind the left ear.

2. Abrasion  2cm  x  4cm  present  over

posterior aspect of both elbows and right wrist.

3. Labia minora of both sides in posterior

parts  contused.  Hymen  ruptured  free  and

clotted blood seen in vagina.

4. Green  wooden stick found inserted in

vagine.  Length of external part of stick 24 cm.

Incompletely  broken in two parts.  On internal

examination, stick of 33 cm length found inside

vagina,  in  continuation  with  external  part  of

stick.  Thus total length of the stick was 57 cm

x .8cm in diameter at most of places.

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Dried blood present on external part of stick.

Internal  examination  revealed  that  small  and  large

intestine  were  perforated  at  places  due  to  insertion  of  the

stick.   The  stomach  contained  semi  digested  food  of  about

200ml.  Free and clotted blood was present in the cavity.  The

mesenteric vessels in the abdomen were torn due to insertion

of wooden stick.  Uterus was small in size and was ruptured

due to insertion of wooden stick into the vagina.  The walls of

cervix were lacerated.  Slides of vaginal swab were prepared for

examination.   The  wooden  stick  inserted  inside  vagina  was

sealed.  No spot of semen was found on the part of the body.

Due  to precarious condition of vagina, it was not possible  to

say whether rape was committed or not.

In the opinion of the doctor, the death was caused due

to shock and haemorrhage as a result of ante mortem injuries

due  to insertion of  the  wooden  stick into the  vagina of  the

deceased.

A ,

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The  jeans  pant  of  the  accused  was  sent  for  chemical

analysis to ascertain marks of blood and semen. As per the

Doctor examining the accused, injuries could be  caused by

blunt object and were fresh in nature. The accused was fully

capable of performing the act of rape. The injury report Ex.

Ka-5 was prepared. According to the Doctor since no smegma

was found present on the glans penis of the accused and it

was  clean,  it  was  inferred  that  he  had  committed  sexual

intercourse.  Smegma  gets  removed  from  the  glans  penis

during sexual intercourse.  The abrasions on the genitals of

the  accused  supported  his  view.  The  Doctor  denied  the

suggestion that the injuries could be  sustained at 7-8 P.M.

that  night.  Rather,  he  testified  that  the  injuries  could  be

sustained between 10-11 P.M. that night.

The  defence  was of  denial  and false  implication due  to

enmity of witnesses arising out of land dispute. The accused,

however, admitted that he was the neighbour of the informant

and that there was a Devi Jagran at the house of Chandrasen

alias  Taplu  (PW  3)  in  the  eventful  night.  Other  facts  were

denied by him in his statement under Section 313 Cr.P.C.

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3. In  order  to  establish  the  guilt  of  the  accused

appellant the prosecution in all examined 8 witnesses. Out of

them,  Naresh  Kumar  (PW  2)  (informant  and  uncle  of  the

deceased), Chandrasen alias Taplu (PW 3) and Nand Kishore

(PW  6)  were  material  witnesses  of  fact  who  supported  the

prosecution case in its entirety.

4. The  trial  court  observed  that  the  witnesses  of  fact

were not supposed to manufacture false evidence play on the

imagination.   They  truthfully  narrated  what  they  saw  with

their own eyes  and their  testimonial assertions went a long

way to prove the factum of rape having been committed by the

accused on the unfortunate child.  The trial court found the

accused guilty and sentenced him as under:

S.No. Section under which     Quantum of               Punishment awarded        punishment

1. 364 IPC         10 Years’ rigorous

imprisonment  with a  fine  of Rs.10,000/-  with stipulation  of  two years’ further simple imprisonment  in default  of  payment

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of fine.

2.           376 IPC           Life Imprisonment              with a fine  of            Rs.15,000/- with  

stipulation of three            years’  simple            imprisonment in

                                     default of payment           of fine. 3. 302 IPC                          Death sentence

5. Since confirmation of death sentence needed approval

of the High Court, reference was made to the High Court.  

6. In support of the appeal before the High Court it was

submitted that the circumstances do not make out the alleged

offence. The High Court did not accept it.  Placing reliance on

the evidence on Naresh Kumar (PW2), Chandrasen (PW3) and

three others who had taken the accused to the police station

the conviction was accorded.  It was noted that the accused

was found in a naked condition at the spot and was caught by

PW 2,3 and others.  He was not wearing any underwear.  The

pant which he was made to wear before he was taken to the

police  station  was  seized  by  the  police  and  was  sent  for

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chemical examination to ascertain marks of blood, semen etc.

The  chemical  examiner  in  its  report  found  blood  stains,

sperms and semen on the pant of the deceased.

7. The  High  Court  also  noticed  that  in  order  to

camouflage the serious kind of rape in a planned manner and

after  committing rape  he  mercilessly inserted  wooden  stick

deep  inside  the  fragile  vagina  of  the  girl  to  the  extent  of

33cms to cause  her  death, with a view to masquerade  the

crime as an accident. The High Court did not find any merit in

the appeal and it was with a view that the death sentence was

the appropriate sentence.   

8. The  stand  taken  before  the  High  Court  was

reiterated.   Additionally it was submitted  that the  case  was

one  where  even  if  prosecution  version  is  accepted  in  toto

death sentence was not the appropriate sentence.

9. Learned  counsel  for  the  respondent  on  the  other

hand supported the judgments of the trial court and the High

Court and submitted  that this was a case  belonging to  the

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rarest of rare  category. Death sentence  was the  appropriate

sentence.

10. 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.  

11. It has been consistently laid down by this Court that

where  a case rests squarely on circumstantial evidence,  the

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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

negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

12. We may also make a reference  to a decision of this

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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 cir- cumstances  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....”.

13. 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

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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.”

14. 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 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.

15. Sir  Alfred  Wills  in  his  admirable  book  “Wills’

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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”.

16. 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.   

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17. 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 in- stance 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 con- clusive 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  ac- cused.”

18. 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

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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  con- cerned must or should and not may be estab- lished; (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;

(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.     

19. It  is  obvious  that  he  wanted  to  camouflage  the

serious crime of rape committed by him over the 5 years old

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girl.  So  in  a  planned  manner,  after  committing  rape,  he

mercilessly inserted stem/stick deep inside the fragile vagina

of the girl to the extent of 33 cms. to cause her death, with a

view to masquerade the crime as an accident.  It was his cruel

innovation  that  he  inserted  a  stick  deep  into  her  vagina

causing death of the  victim.  It was just by providence  that

due to timely reach of the witnesses (PWs 2, 3 & others) (who

were  frantically  searching  the  girl)  he  could  be  caught  in

naked  condition while  inserting stick into the  vagina of  the

victim.  He was near the lifeless body of the victim.

20. 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

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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

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

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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

of the highest order.  

21. 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.  In the instant case, the victim aged

about five years was not only raped, but was murdered in a

diabolic manner.  

22. 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  mould  the  sentencing  system  to  meet  the

challenges.  The  contagion  of  lawlessness  would  undermine

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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

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deterrence.   In  Mahesh v.  State  of M.P. (1987) 2 SCR 710),

this  Court  while  refusing  to  reduce  the  death  sentence

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.”

23. 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).                    

24. The criminal law adheres in general to the principle

of  proportionality  in  prescribing  liability  according  to  the

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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.  

25. 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

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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.            

26. After  giving due  consideration to  the  facts and cir-

cumstances  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 MCG Dautha

v. State of Callifornia: 402 US 183: 28 L.D. 2d 711  that no for-

mula of a foolproof nature is possible that would provide a rea-

sonable criterion in determining a just and appropriate pun-

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ishment in the infinite variety of circumstances that may affect

the gravity of the crime.  In the absence of any foolproof for-

mula which may provide  any basis for reasonable  criteria to

correctly assess various circumstances germane to the consid-

eration 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.

27. 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.

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28. 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

for  and strengthened  by  string of  deterrence  inbuilt  in  the

sentencing system.  

29. 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

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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.

30. 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 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

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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.

31. These aspects have been elaborated in State of M.P.

v. Munna Choubey [2005 (2) SCC 712].

32. 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

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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 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

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Section 302, violates neither the letter nor the ethos of Article 19."

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

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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."

34. 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

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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.”

35. 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

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court would proceed to do so.

36. 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.

37. 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:

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

38. 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.

39. 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.

40. We  record our  appreciation for  the  able  assistance

rendered by Mr. Shankar Divate, learned amicus curiae in the

true spirit of friend and officer of the Court.

41. The appeal fails and is dismissed.

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                               …………………….....................J.

          (Dr. ARIJIT PASAYAT)              

        ………….……….......................J.

 (Dr. MUKUNDAKAM SHARMA) New Delhi,      July 23, 2008

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