REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1409          OF 2008 (Arising out of Special Leave Petition (Crl.) No.57 of 2007)

Shivaji @ Dadya Shankar Alhat .. Appellant  

versus   The State of Maharashtra ..Respondent              

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

A large number of cases in recent times coming before

this  Court  involving  rape  and  murder  of  young  girls,  is  a

matter of concern.  In the instant case victim was about nine

years of age who 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. Learned Second Additional Judge, Pune in Sessions Case

No.209  of  2002  tried  the  appellant  for  offences  punishable

under Sections 302 and Section 376 (2)(f) of the Indian Penal

Code, 1860 ( in short the ‘IPC’).  By judgment and order dated

27th June, 2004, the trial court found the appellant guilty for

the aforesaid offences and he was sentenced to death for the

offence of murder and in respect of the other offence sentence

to suffer rigorous imprisonment for ten years and to pay fine

with default stipulation.  Appellant questioned the judgment

in Criminal Appeal No.574 of 2004 before the Bombay High

Court  which  heard  the  same  alongwith  Confirmation  Case

No.1 of 2003 which was referred to the High Court as required

under Section 366 of the Code of Criminal Procedure, 1973 (in

short  the  ‘Code’),  for  confirmation  of  death  sentence.  The

appeals were heard together, the reference was accepted but

the appeal filed by the accused was dismissed.   

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

Shivaji-appellant (hereinafter referred to as the ‘accused’)

is  an  educated  person  i.e.  B.A.  BEd.  and  was  serving  as

teacher at Pune in the year 1986.  He was staying with his

mother  and  sister  near  the  house  of  Hemlata  (hereinafter

referred to as the ‘deceased’), a tiny girl who had not seen ten

summers in life. The accused is a married man and has three

children.  His wife and children were not residing with him.

The accused was known to the deceased and her family.

The  deceased  and  her  family  used  to  sometime  give  him

bread.  The deceased was studying in 5th standard.  She has

two sisters,  namely, Bhagyashree and Jayshree (PW 8).  Her

mother Sushilabai (PW 2) was working as a maid.  All of them

were staying with their grandmother Yashodabai (PW 7). The

father of the deceased was not staying with them on account

of strained relationship between him and Sushila, the mother

of deceased.

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The incident in question occurred on 14th January, 2002.

On that day there was festival of Makarsankranti. Sushilabai

had gone to the house of one Tirandaz for work.  The deceased

and her two sisters and their grandmother Yashodabai were

present in the house.  At about 11.30 a.m., the deceased and

her sister Jayshree had gone to the borewell of one Sangale to

fetch  water.  The  accused  was  sitting  on  the  slab,  where

construction  work  of  one  Mr.  Gaikar  was  going  on.   The

accused told the deceased that he would give her fuel wood

from the hill. Thereafter they came to deceased’s house.  The

deceased  kept  the  pitcher  in  the  house  and  she  went

alongwith  the  accused  towards  the  hill  called  Manmodya

Dongar.  Thereafter the deceased did not return home.

Sushilabai came home at about 4.30 P.M.   She was

told  that her  daughter  Hemlata had gone  with the accused

and  had  not  returned.   They  started  searching  for  the

deceased but could not find her.  On the same day i.e. on 14th

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January, 2002,Yashodabai, the grandmother of the deceased

gave  a missing complaint  to the  police  in which she  stated

that the deceased had left  the house with the accused and

had  not  come  back.   Search  was  going  on to  find  out  the

deceased.   It  appears that Sushilabai got to know from one

Sakinabai that dead body of Hemlata was lying on Manmodya

hill.  She also gave information to the police on 15th January,

2002 regarding missing of Hemlata which is at Exhibit 12.  In

this complaint she also stated that the deceased had left the

house alongwith the accused.

After  seeing  the  dead  body  of  Hemlata  at  Junnar

Hospital,  Sushilabai  reported  the matter  to the police.   Her

complaint came to be recorded in which she stated that her

daughter  had  left  with  the  accused  on  14.1.2002.   She

specifically  stated  that  she  was  convinced  that,  it  is  the

accused who had raped her daughter and assaulted her on

her abdomen with a sharp edged  weapon,  strangulated her

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with  a  rope  and  murdered  her.   On  the  basis  of  this  FIR

investigation started.

The accused  was not traceable.   He  could be arrested

only  on  16th January,  2002.   He  was  found  hiding  in  the

sugarcane  crop  of  one  Gaikwad.   After  completion  of  the

investigation the accused came to be charged as aforesaid.

Since  the  accused  abjured  guilt  trial  was  held.

Seventeen witnesses were examined to further the prosecution

version.

Prosecution examined Sushilabai (PW 2), the mother of

the  deceased  and  Yashodhabai  (PW 7),  grandmother  of  the

deceased.  Jayshree  (PW  8)  the  sister  of  the  deceased,

Shantabai (PW 9) and Khanwar Hussein (PW 6) were examined

to establish  the  prosecution case  that  the  accused  and the

deceased  were  last  seen  together  on 14th January,  2002  at

about 11.30 a.m.  going towards Manmodya Hill.  Suresh B.

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Visave (PW 3) is a Pancha to the Panchnama of recovery of

penknife  at  the  instance  of  the  accused.   Dr.  Suresh  R.

Shahane (PW 15) had examined the accused.  Dr. Suresh B.

Patankar  (PW  17)  had  examined  the  accused  to  find  out

whether  he  was  capable  of  sexual  intercourse.   The

prosecution also examined Dr. Nana N. Sonawane (PW 5), who

proved the postmortem notes.  Investigation was conducted by

PSI Ramesh R. Bhosale (PW 14) and PSI Dilip D. Jagdale (PW

16).

The  accused  pleaded  innocence  and  false  implication.

His case was that in fact at the relevant point of time he was

not  present  in  the  village  and  has  gone  to  his  daughter’s

house, then to his sister’s house.   

Learned trial court found the evidence cogent and found

the  accused  guilty  and  imposed  the  sentence.  The  appeal

before the High Court was dismissed and the reference made

under Section 366 IPC was confirmed.

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4. In  support  of  the  appeal  learned  counsel  for  the

appellant  submitted  that  the  case  at  hand  is  based  on

circumstantial evidence and the circumstances do not warrant

conclusion of guilt of the accused.  Since the conviction was

based on circumstantial evidence, no death sentence should

have been awarded and in any event this is not a case where

death sentence should have been imposed.

5. Learned counsel  for the respondent-State on the other

hand  submitted  that  trial  court  and  the  High  Court  have

analysed the evidence in great detail to show the horrendous

manner in which a tiny girl was gone to death after ravishing

her.   The  circumstances  which  have  highlighted  by  the

prosecution relate to the fact that the accused was last seen in

the company of the deceased and injury on the abdomen and

the  rope  by  which  the  deceased  was  strangulated  were

recovered at the instance of the accused and the fact that the

accused had absconded and was arrested from a place where

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he was  hiding  and the  presence  of  blood  on his  cloth  is  a

relevant  factor.  The  plea  of  alibi  set  up  has  not  been

established.   

6. From the evidence of Sushila (PW 1), Yashodabai (PW 7)

and Jayashree (PW 8) it appears that they are a poor family.

Sushila (PW l) is lame and at the  relevant time was deserted

by her husband.  Sushila and her daughters used to stay with

her mother Yashodabai who was about 69 Years old.  Sushila

used to work as a maid and used to be away from the house

for long hours in connection with  work leaving in the house

her mother and three daughters.  The daughters used to do

household  work like  filling water  and used to go to school.

The deceased was thus a helpless poor girl of tender age. She

had  no  protection  of  the  father.  She  was,  therefore,  a

vulnerable girl.

7. Yashodabai  (PW  7)  has  stated  that  the  accused  was

residing near their house. He was not doing any work. His wife

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and children were not residing with him. Sushila (PW 1) has

stated that since the accused used to stay in hilly area the

deceased  used  to  sometimes  give  him  bread. Khanwar

Husssein (PW 6) and Shantabai (PW 9) stay in village Barav

Junnar  where  the  deceased  was  staying.   They  have  also

confirmed that the accused used to stay in the same village.

Therefore, that the accused was staying near the house of the

deceased and was known to her has been established.

8. Sushila  (PW1),  the  mother  of  the  deceased  has  stated

that on 14th January, 2002, she had gone to the house of one

Tirandaz  for  work.   At  that  time  her  three  daughters  and

mother were present in the house.  She left the house at about

11-15  a.m.  and came back  at  about  4.30  p.m.   When she

came back, her mother told her that the deceased had gone to

bring fuel wood along with the accused.  Since the deceased

did not come back they started searching for her.  Yashodabai,

the grandmother of the deceased gave a missing complaint to

the Junnar police on 14.1.2002.  On 15th January, 2002 at

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about 8.30 to 9.00 a.m. one Sakinabai who was residing near

their  house,  came  and informed  that  the  dead  body of  the

deceased  was  found  on  the  hill.   Sushila  then  gave  a

complaint to the police on 15.1.2002 that her daughter had

left with the accused on 14.1.2002 at about 11 O’ clock in the

morning;  that  she  had  not  returned  home;  that  they  had

searched for her; that her neighbour Sakina Shaikh had told

her that the dead body of her daughter was lying on the hill

and that out of fear she had not gone to see the dead body.

9. Jayashree (PW 8) is the minor daughter of Sushila (PW1).

Her evidence in our opinion is crucial to the prosecution case

and it also inspires confidence.  She has stated that on 14th

January,  2002,  she  had  gone  with  her  sister  deceased

Hemlata, towards the borewell of one Sangale in order to fetch

water,  at  about  11.30  a.m.   The  construction  work  of  one

Gaikar was going on and the accused was sitting on the slab

there.  The accused met them and told the deceased that he

would give her fuel wood from the hill.  Thereafter they came

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home.  The deceased kept her pitcher in the house.  She took

a towel and a sickle and went alongwith the accused towards

Manmodya hill.   She has further stated that as her mother

was not present she told her grandmother that the deceased

had gone along with the accused to bring fuel wood.  When

her mother came back at 4.30 p.m. she told her mother that

the  deceased  had gone  along  with the  accused.   Since  the

deceased did not come back they started searching for her.

The body of the deceased was found on the next day on the

hill.  This witness has stood the test of cross examination very

well.   She  has  stuck  to  her  version  in  the  examination-in-

chief.  There is not a single discrepancy in her evidence.  The

trial Court and the High Court rightly placed reliance on the

evidence of this witness.

10. The  evidence  of  Jayshree  (PW  8)  is  corroborated  by

evidence of Shantabai (PW 9).  According to her on the day of

the incident she was collecting cow dung near Manmodya hill

at about 11 a.m.  She saw the accused and the deceased going

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towards the hill.   In the cross examination an attempt was

made to suggest to her that her financial position was sound

and, therefore, there was no reason for her to collect cow dung

on  Makarsankrati  day.  There  is  no  substance  in  this

submission.  Shantabai (PW 9) has stated that she was being

maintained out of the amount of pension which her husband

was getting.  This does not mean that Shantabai came from an

affluent family.  There is nothing abnormal in finding a village

woman collecting cow dung in the morning. She knew both,

the accused and the deceased. Her evidence to the effect that

she  saw  the  accused  and  the  deceased  going  towards

Manmodya hill on 14th January, 2002 at about 11 O’clock in

the morning is credible.

11. The  third  witness  who  had  seen  the  accused  and the

deceased is Khanwar Hussain (PW 6).  He is also a resident of

Barav.  He has stated that on 14th January,  2002 at 11 to

11.15 a.m. he was offering water to his cattle from the cistern

of  one  Sangale.   At  that time he  saw the accused  and the

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deceased  proceeding towards the hill.   The  evidence  of  this

witness is reliable.  It is significant to note that he has stated

that  he was offering  water  to  his  cattle  from the  cistern of

Sangale.  Jayshree (PW 8) has also stated that she and the

deceased were going towards the borewell of Sangale and that

accused met them when they were proceeding towards their

house after collecting water.  Therefore, the claim of Khanwar

Hussein  that  he  had  seen  the  accused  and  the  deceased

cannot  be  disbelieved.  The  statement  of  this  witness  is

recorded  on  15th January,  2002  i.e.  immediately  after  the

incident.

12. So far as the last seen aspect is concerned it is necessary

to take note of two decisions of this court.  In State of U.P. v.

Satish [2005 (3) SCC 114] it was noted as follows:

“22. The  last  seen  theory  comes  into  play where the time-gap between the point of time when the accused and the deceased were seen last  alive  and  when  the  deceased  is  found dead is so small that possibility of any person other than the accused being the author of the

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crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there  is  a  long  gap  and  possibility  of  other persons  coming  in  between  exists.   In  the absence  of  any  other  positive  evidence  to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.”  

13. In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006

(10) SCC 172] it was noted as follows:

“27. The last-seen theory, furthermore, comes into play where the time gap between the point of  time when  the  accused  and the  deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime  becomes  impossible.  Even  in  such  a case  the  courts  should  look  for  some corroboration”.

(See also Bodh Raj v. State of J&K (2002(8) SCC 45).)”

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14. A similar view was also taken in Jaswant Gir v. State of

Punjab [2005(12) SCC 438],  Kusuma Ankama Rao v State of

A.P. (2008(9) SCALE 652) and in Manivel  & Ors. v. State of

Tamil Nadu ( 2008(5) Supreme 577).

15. 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.  

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16. 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

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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.

17. 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....”.

18. 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:  

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“(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.”

19. 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

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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.

20. 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

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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”.

18. 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

this Court as far back as in 1952.   

21. 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

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

22. 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.     

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

“The incriminating circumstances  enumerated above unmistakably and inevitably lead to the

23

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 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

24

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.

24. 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.”  

25. The law regulates social  interests, arbitrates conflicting

claims and demands.  Security of persons and property of the

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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”

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

26

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

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.”

26. Therefore,  undue  sympathy  to  impose  inadequate

sentence  would  do  more  harm  to  the  justice  system  to

27

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).  

27. 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

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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.  

28. Proportion  between  crime  and  punishment  is  a  goal

respected  in  principle,  and  in  spite  of  errant  notions,  it

remains a strong influence in the determination of sentences.

The  practice  of  punishing  all  serious  crimes  with  equal

severity  is  now  unknown  in  civilized  societies,  but  such  a

radical  departure  from  the  principle  of  proportionality  has

disappeared from the law only in recent times. Even now for a

single  grave  infraction  drastic  sentences  are  imposed.

Anything  less  than  a  penalty  of  greatest  severity  for  any

serious crime is thought then to be a measure of toleration

that is unwarranted and unwise. But in fact, quite apart from

those  considerations  that  make  punishment  unjustifiable

when  it  is  out  of  proportion  to  the  crime,  uniformly

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disproportionate  punishment  has  some  very  undesirable

practical consequences.            

29. After  giving  due  consideration  to  the  facts  and

circumstances of each case, for deciding just and appropriate

sentence  to be awarded for an offence,  the aggravating and

mitigating  factors  and circumstances  in  which a  crime  has

been committed are to be delicately balanced on the basis of

really  relevant  circumstances  in a dispassionate  manner by

the Court.  Such act of balancing is indeed a difficult task.  It

has been very aptly indicated in Dennis Councle 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

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in  the  facts  of  each  case,  is  the  only  way  in  which  such

judgment may be equitably distinguished.

30. 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.

31. Imposition of sentence without considering its effect on

the  social  order  in  many  cases  may  be  in  reality  a  futile

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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.  

32. 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

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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.

33. 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

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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.

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

Munna Choubey [2005 (2) SCC 712].

35. 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

34

antithetical  views,  held  by  the  Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning  and  light  are  rationally  and  deeply divided  in  their  opinion  on  this  issue,  is  a ground  among  others,  for  rejecting  the petitioners’  argument  that  retention  of  death penalty  in  the  impugned provision,  is  totally devoid  of  reason  and  purpose.  If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the  world  over,  including  sociologists, legislators,  jurists,  judges and administrators still firmly believe in the worth and necessity of capital  punishment  for  the  protection  of society, if in the perspective of prevailing crime conditions  in  India,  contemporary  public opinion  channelised  through  the  people’s representatives  in Parliament,  has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death  penalty  is  still  a  recognised  legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware — as we shall presently show they were  — of  the  existence  of  death  penalty  as punishment  for  murder,  under  the  Indian Penal Code, if the 35th Report and subsequent reports  of  the  Law  Commission  suggesting retention of death penalty, and recommending revision of  the Criminal  Procedure  Code  and the insertion of the new Sections 235(2)  and 354(3) in that Code providing for pre-sentence hearing  and  sentencing  procedure  on conviction  for  murder  and  other  capital offences  were  before  Parliament  and

35

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."

36. 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  (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

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

37. 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

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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 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.  

38

(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.”

38. 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.

39. What is culled out from the decisions noted above is that

while deciding the question as to whether the extreme penalty

39

of  death  sentence  is  to  be  awarded,  a  balance  sheet  of

aggravating and mitigating circumstances has to be drawn up.

40. The plea that in a case of circumstantial evidence death

should  not  be  awarded  is  without  any  logic.  If  the

circumstantial  evidence  is  found  to  be  of  unimpeachable

character in establishing the guilt of the accused, that forms

the foundation for conviction. That has nothing to do with the

question of sentence as has been observed by this Court in

various cases while awarding death sentence.  The mitigating

circumstances and the aggravating circumstances have to be

balanced.   In  the balance sheet  of  such circumstances,  the

fact that the case rests on circumstantial evidence has no role

to play. In fact in most of the cases where death sentence are

awarded for rape and murder and the like, there is practically

no scope for having an eye witness. They are not committed in

the public view.  But very nature of things in such cases, the

available  evidence  is  circumstantial  evidence.  If  the  said

evidence  has  been  found  to  be  credible,  cogent  and

40

trustworthy for the purpose of recording conviction, to treat

that evidence as a mitigating circumstance, would amount to

consideration  of  an  irrelevant  aspect.  The  plea  of  learned

Amicus Curiae that the conviction is based on circumstantial

evidence  and,  therefore,  the  death  sentence  should  not  be

awarded is clearly unsustainable.

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

circumstances highlighted above, establish the depraved acts

of the accused,  and they call  for only one sentence,  that is

death sentence.

42. 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.

43. We  record  our  appreciation  for  the  able  assistance

rendered by learned amicus curiae in the true spirit of friend

and officer of the Court.

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44. Appeal fails and is dismissed.

……..…….............................J. (Dr. ARIJIT PASAYAT)

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

(Dr. MUKUNDAKAM SHARMA) New Delhi, September 5, 2008  

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