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CASE NO.: Appeal (crl.)  202 of 2007

PETITIONER: Shivu and Anr

RESPONDENT: R.G. High Court of Karnataka and Anr.

DATE OF JUDGMENT: 13/02/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.)  No.1762 of 2006)

Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a  Division Bench of the Karnataka High Court accepting the  reference made under Section 366 of the Code of Criminal  Procedure, 1973 (in short the ’Cr.P.C.’) and confirming death  sentence awarded to the appellants in respect of offences  punishable under Section 302 read with Section 34 of the  Indian Penal Code, 1860 (in short ’IPC’) and sentence of  10  years and fine of Rs.25,000/- with default stipulation for the  offence punishable under Section 376 read with Section 34  IPC awarded by the learned District and Sessions Judge,   Chamarajanagara.

       Background facts which led to the trial of the accused  persons are essentially as follows:

       Jayamma, (PW.1) is the resident of Badrenahalli village in  Kollegal Taluk. She resided with her husband, and children  Raju (PW.2), Nagarajamma (PW.10) and Shivamma  (hereinafter referred to as the ’deceased’).  Both the accused  are residents of the same village. The accused-aged about 20  and 22 years respectively were sexually obsessed youngsters.  Few months prior to the incident, relating to the present  appeal they attempted to commit rape on Lakkamma  [daughter of Puttegowda (PW.7)], but were unsuccessful. For  that act, they were admonished. Later, they attempted to  commit rape on PW.10 (daughter of PW.1). PW.10 was also  successful in escaping from their clutches. Though in both the  incidents, the aggrieved persons wanted to lodge police  complaints, against the accused, at the instance of village  elders and family members of these accused, instead of  lodging criminal cases, only Panchayath of village elders was  called on each occasion and the accused were directed to  mend their ways. But this warning had no effect on them.  Emboldened by escape from punishment in those two  incidents, they committed rape on the deceased a young girl of  hardly 18 years and to avoid detection, committed heinous  and brutal act of her murder. On the morning of 15.10.2001,  deceased Shivamma went to the family land situated near her

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house to dump manure. As she did not return, PW.1 went in  search of her after some time. When Shivamma was not seen  in the land, PW.1 began to call her by name. Suspecting some  untoward incident, when PW.1 went near the spot, she saw  the body of the deceased lying on the ground with clothes  disarrayed. Noticing that Shivamma was dead, PW.1 raised  hue and cry and went towards the village calling people for  help. Attracted by her cries, her son PW.2 and other villagers  including Chikkiregowda (PW.3) came to the spot and on  learning about the incident, especially the fact that the  accused had been seen earlier at the spot where the dead body  was found and had on detection run away, they went in  search of the accused. In the meantime, Narayana Gowda  (PW.5) the brother of PW.1 (maternal uncle of the deceased)  who also resides in the same village came to the house of PW.1  and on suspecting the role of the accused in the rape and  murder of Shivamma, wrote down the statement of PW.1 and  after taking her L.T.I., took the same to the jurisdictional  police at Rampur police station. M.K. AIi, the S.H.O. of  Rampur police station (PW.20) on receipt of the information of  the crime, after accepting the written complaint as per Ex.P.1,  registered a case in Crime No.86/01 for the offences  punishable u/s 376, 302 both read with Section 34 of the IPC  against these two accused and took up investigation.

After registering the case, preparing the F.I.R., sending  the same, the superior officers and the Court, the Investigating  officer along with staff, went to the place of the incident and  held the necessary mahazars like spot mahazar, seizure of  certain articles found near the scene of offence. After inquest  proceedings, the body of the deceased was taken for autopsy.  In the meantime, on learning about the culpability of the  accused in the crime, several villagers went in search of the  accused. Accused No.1 was found at the bus stand while  attempting to board a bus. He was brought and was  interrogated. His disclosure confirmed the involvement of  accused No.2 as the co-participant in the crime. People went  in search of the second accused who was found hiding in the  house. Both of them were brought and kept in confinement in  the house of one Shivamma near the spot. They admitted to  their guilt.  On arrival of the investigating officer, after the  preliminary investigation as already noted, the accused were  taken into custody and they were sent for medical  examination. The post-mortem examination on the dead body  of Shivamma was carried out by Dr. Pushpalatha, PW.11  along with Dr.Basavaraju PW.12. It confirmed rape on the  deceased and that she had been killed by strangulation. The  accused were examined by the doctor PW.12 who noted nail  scratch marks on their bodies. Syed Ameer Pasha, (PW.13) a  photographer was summoned and he took photographs of the  scene of offence as well as the dead body. Similarly Siddappa  (PW.15), Junior Engineer prepared the sketch of the scene of  offence as per Ex.P.15. After recording the statements of  material witnesses including the relatives and the other  villagers who could throw light on the incident and after  receipt of all material reports, charge sheet was filed against  these two accused for offences punishable under Sections 376  read with 34 and 302 read with 34 of the IPC.

Twenty witnesses were examined to further the  prosecution version. In their examination under Section 313  Cr.P.C. the accused persons except denying their involvement  did not offer explanation of particular defence. The trial Court  after considering the evidence on record recorded conviction

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and awarded sentence as aforenoted. Since the death sentence  had been awarded by the trial Court reference was made to  the High Court in terms of Section 366 Cr.P.C. for  confirmation of the death sentence. The accused-appellants  also preferred appeal in terms of section 374 (2) Cr.P.C. The  circumstances on which the trial Court placed reliance for  recording conviction are as follows:

a.      Accused and deceased were last seen together near  scene of offence. b.      The movements of the accused. c.      The rape and murder of the victim. d.      The immediate apprehension of the accused by the  villagers and their extra judicial confession.  e.      Medical evidence in respect of accused indicating  resistance put forth by the victim and lastly; f.      The conduct of the accused prior to and after the crime.

Considering the heinous nature of the crime, the trial court  held it to be falling in the rarest of the rare category and awarded  death sentence. The High Court as noted above confirmed the conviction  and the sentence imposed.  

In support of the appeal learned counsel for the  appellants submitted that the case is based on circumstantial  evidence and the circumstances highlighted do not present a   complete chain to warrant any inference about the guilt of the  accused.  Alternatively, it is submitted that the death sentence  is not warranted.

Learned counsel for the appellant-State on the other  hand submitted that the circumstances highlighted clearly  establish the guilt of the accused and no exceptions can be  taken to the reasons indicated by the Trial Court in the well- reasoned judgment. The evidence has also been analysed in  great detail by the High Court and, therefore, no question of  any interference is called for with the conviction recorded. So  far as the sentence is concerned it is pointed out that the  accused persons are hardened criminals. They had made  earlier attempts of rape of two different girls i.e. daughter of  PW.7 and PW.1.

PWs. 11 and 12 are the doctors who conducted the  autopsy and it is PW.12 who has also medically examined the  accused and given the wound certificates. PW.13 is the  photographer who took the photograph of scene of offence and  the dead body. PW.15 is the Junior Engineer who has  prepared the sketch of the scene of offence as per Ex.P.15 and  PW.14 is the Village Accountant who has furnished the R.T.C.  of the lands in question.  PWs. 18 and 19 have been examined  by the prosecution to show the earlier attempts of the accused  to molest other girls (Lakkamma and Nagarajamma) and their  participation in the panchayath held by the village elders in  that regard.  However, it is to be noted that as they did not  support the prosecution, they have been treated as hostile  witnesses and in spite of searching cross-examination by the  prosecution they have stuck to their contrary version.  The  remaining witnesses are mahazar witnesses and the members  of the investigation team.

To show the presence of the accused at the time and  place almost near the victim, the prosecution has relied upon  the evidence of Puttegowda, PW.6, Jayamma (PW.1) and two  independent witnesses, Kalamma (PW8) and Rudramma

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(PW.9).  Puttegowda (PW.6) states that on the date of the  incident while he was taking tea in the morning, he saw the  deceased going towards her family land carrying basket of  manure.  He also saw that these two accused were following  her from a little distance. He states that after some time he  also saw Jayamma (PW.1) the mother of the deceased going  towards the land and coming back raising hue and cry over  the murder of her daughter Shivamma by the accused and her  seeing them running away from the spot.  The evidence of this  witness, so far as this aspect is concerned, except the futile  suggestion that this witness is speaking falsehood as he  belongs to the group of Narayana Gowda and opposed to the  accused has remained unshaken. 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 v. State of Hyderabad (AIR 1956  SC 316), Earabhadrappa v. State of Karnataka (AIR 1983 SC  446), State of U.P. v. Sukhbasi (AIR 1985 SC 1224), Balwinder  Singh v. State of Punjab (AIR 1987 SC 350) and 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 home the offences beyond any  reasonable doubt.  We may also make a reference to a decision of this Court  in C. Chenga Reddy v. State of A.P. (1996 (10) SCC 193),  wherein it has been observed thus:  "21. In a case based on circumstantial  evidence, the settled law is that the  circumstances from which the conclusion of  guilt is drawn should be fully proved and  such circumstances must be conclusive in  nature. Moreover, all the circumstances  should be complete and there should be no  gap left in the chain of evidence. Further, the  proved circumstances must be consistent  only with the hypothesis of the guilt of the  accused and totally inconsistent with his  innocence."  

In Padala Veera Reddy v. State of A.P. (AIR 1990 SC 79) it  was laid down that when a case rests upon circumstantial  evidence, such evidence must satisfy the following tests:   1) the circumstances from which an  inference of guilt is sought to be drawn, must  be cogently and firmly established;  (2)     those circumstances should be of a  definite tendency unerringly pointing towards  guilt of the accused;  (3)     the circumstances, taken cumulatively,  should form a chain so complete that there is  no escape from the conclusion that within all  human probability the crime was committed  by the accused and none else; and  (4) the circumstantial evidence in order to

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sustain conviction must be complete and  incapable of explanation of any other  hypothesis than that of guilt of the accused  and such evidence should not only be  consistent with the guilt of the accused but  should be inconsistent with his innocence."  

In State of U.P. v. Ashok Kumar Srivastava (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.  Sir Alfred Wills in his admirable book ‘Wills’  Circumstantial Evidence’ (Chapter VI) lays down the following  rules specially to be observed in the case of circumstantial  evidence: (1) the facts alleged as the basis of any legal  inference must be clearly proved and beyond reasonable doubt  connected with the factum probandum; (2) the burden of proof  is always on the party who asserts the existence of any fact,  which infers legal accountability; (3) in all cases, whether of  direct or circumstantial evidence the best evidence must be  adduced which the nature of the case admits; (4) in order to  justify the inference of guilt, the inculpatory facts must be  incompatible with the innocence of the accused and incapable  of explanation, upon any other reasonable hypothesis than  that of his guilt; and (5) if there be any reasonable doubt of the  guilt of the accused, he is entitled as of right to be acquitted.  There is no doubt that conviction can be based solely on  circumstantial evidence but it should be tested by the  touchstone of law relating to circumstantial evidence laid  down by this Court as far back as in 1952.  In Hanumant Govind Nargundkar v. State of M.P. (AIR  1952 SC 343) it was observed thus:  "It is well to remember that in cases where  the evidence is of a circumstantial nature,  the circumstances from which the conclusion  of guilt is to be drawn should be in the first  instance be fully established, and all the  facts so established should be consistent  only with the hypothesis of the guilt of the  accused. Again, the circumstances should be  of a conclusive nature and tendency and they  should be such as to exclude every  hypothesis but the one proposed to be  proved. In other words, there must be a  chain of evidence so far complete as not to  leave any reasonable ground for a conclusion  consistent with the innocence of the accused  and it must be such as to show that within  all human probability the act must have  been done by the accused."  

A reference may be made to a later decision in Sharad  Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC  1622). Therein, while dealing with circumstantial evidence, it  has been held that the onus was on the prosecution to prove  that the chain is complete and the infirmity of lacuna in the  prosecution cannot be cured by a 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:

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(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;  (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  complete 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.  

       When the evidence on record is analysed in the  background of principles highlighted above, the inevitable  conclusion is that the prosecution has established its  accusations. The residual question relates to sentence. In Bachan   Singh v. State of Punjab (1980 (2) SCC 684) and Machhi   Singh  and Ors. v. State of Punjab (1983 (3) SCC 470) the  guidelines which are to be kept in view when considering the  question whether the case belongs to the rarest of the rare  category for awarding death sentence were indicated.

In Machhi Singh’s case (supra) it was observed:

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

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

(b)     Are the circumstances of the crime  such that there is no alternative but to  impose death sentence even after according  maximum weightage to the mitigating  circumstances which speak in favour of the  offender?     The following guidelines which emerge  from Bachan Singh case (supra) will have to  be applied to the facts of each individual case  where the question of imposition of death  sentence arises: (SCC p. 489, para 38):-

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

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

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

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

In rarest of rare cases when collective  conscience of the community is so shocked  that it will expect the holders of the judicial  power centre to inflict death penalty  irrespective of their personal opinion as  regards desirability or otherwise of retaining  death penalty, death sentence can be  awarded. The community may entertain such  sentiment in the following circumstances:

(1)     When the murder is committed in an  extremely brutal, grotesque, diabolical,  revolting or dastardly manner so as to arouse  intense and extreme indignation of the  community.   

(2)     When the murder is committed for a  motive which evinces total depravity and  meanness; e.g. murder by hired assassin for  money or reward or a cold-blooded murder for  gains of a person vis-‘-vis whom the  murderer is in a dominating position or in a  position of trust, or murder is committed in  the course for betrayal of the motherland.  

(3)     When murder of a member of a  Scheduled Caste or minority community etc.,  is committed not for personal reasons but in  circumstances which arouse social wrath, or  in cases of ’bride burning’ or ‘dowry deaths’ or  when murder is committed in order to  remarry for the sake of extracting dowry once  again or to marry another woman on account  of infatuation.  

(4)     When the crime is enormous in  proportion.  For instance when multiple  murders, say of all or almost all the members  of a family or a large number of persons of a  particular caste, community, or locality, are  committed.  

(5)     When the victim of murder is an  innocent child, or a helpless woman or old or

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infirm person or a person vis-‘-vis whom the  murderer is in a dominating position or a  public figure generally loved and respected by  the community.                                If upon taking an overall global view of  all the circumstances in the light of the  aforesaid propositions and taking into  account the answers to the questions posed  by way of the test for the rarest of rare cases,  the circumstances of the case are such that  death sentence is warranted, the court would  proceed to do so."

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

The principle of proportion between crime and  punishment is a principle of just desert that serves as the  foundation of every criminal sentence that is justifiable. As a  principle of criminal justice it is hardly less familiar or less  important than the principle that only the guilty ought to be  punished.  Indeed, the requirement that punishment not be  disproportionately great, which is a corollary of just desert, is  dictated by the same principle that does not allow punishment  of the innocent, for any punishment in excess of what is  deserved for the criminal conduct is punishment without guilt.         The criminal law adheres in general to the principle of  proportionality in prescribing liability according to the  culpability of each kind of criminal conduct. It ordinarily  allows some significant discretion to the Judge in arriving at a  sentence in each case, presumably to permit sentences that  reflect more subtle considerations of culpability that are raised  by the special facts of each case. Judges in essence affirm that  punishment ought always to fit the crime; yet in practice  sentences are determined largely by other considerations.  Sometimes it is the correctional needs of the perpetrator that  are offered to justify a sentence, sometimes the desirability of  keeping him out of circulation, and sometimes even the 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.  

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.  Anything less than a penalty of greatest severity for any  serious crime is thought to be a measure of toleration that is  unwarranted and unwise. But in fact quite apart from those

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considerations that make punishment unjustifiable when it is  out of proportion to the crime, uniformly disproportionate  punishment has some very undesirable practical  consequences.   

Considering the view expressed by this Court in Bachan  Singh’s case (supra) and Machhi Singh’s case (supra) we have  no hesitation in holding that the case at hand falls in rarest of  rare category and death sentence awarded by the trial Court  and confirmed by the High Court was appropriate.  

The appeal is dismissed.