@ Mubarik Hussain Vs. State of Rajasthan  Insc 948 (12 December 2006)
Arijit Pasayat & S.H. Kapadia
out of SLP (Crl.) No. 4765 of 2006) Dr. ARIJIT PASAYAT, J Leave granted.
in this appeal is to the judgment rendered by a Division Bench of the Rajasthan
High Court at Jodhpur confirming the death sentence awarded to the appellant
for commission of offence punishable under Section 302 of the Indian Penal
Code, 1860 (in short the 'IPC'). The trial Court had imposed a death sentence
and, therefore, made a reference for confirmation of death sentence by the High
Court in terms of Section 366 of the Code of Criminal Procedure, 1973 (in short
also filed an appeal and both the case under reference and the appeal were
taken up together and disposed of by a common judgment.
to the prosecution accused killed his wife- Anisha, three daughters namely, Gulfsha,
Nisha and Anta @ Munni aged 9 years, 6 years and 4 years respectively and son Babu
aged 2 = years. The Additional Sessions Judge (Fast Track), Nagaur had found
the charge for commission of offence under Section 302 IPC to have been proved
and imposed the death sentence.
version in a nutshell is as follows:
10.12.2005 at about 6 A.M. Alladeen (PW-1) submitted a written report at Police
Station, Nagaur stating inter alia that In the evening of 9.12.2005 the
appellant Bablu gave beating to his wife and children. But they were rescued on
his intervention. He described Bablu as a person of notorious character. It was
further averred that in the morning at about 5 a.m. his brother appellant Bablu
came out of the house shouting and making declaration that he has killed all
the five bastards by strangulation one by one. He killed his wife Anisha,
daughters Gulfsha, Nisha, Anta @ Munni and son Babu. The dead bodies were found
placed on the mattresses tying the thumbs of each leg of the dead bodies by
thread. On this information police registered a case for offence punishable
under Section 302 I.P.C. and proceeded with investigation. All the dead bodies
were sent for postmortem. A Medical Board consisting of three doctors conducted
the postmortem of all the five dead bodies. The appellant was arrested. After
usual investigation police laid charge-sheet against the appellant for offence
punishable under Section 302 I.P.C. On being committed the appellant was tried
of the charge of offence punishable under Section 302 I.P.C. by the court of
Additional Sessions Judge (Fast Track), Nagaur. The trial court on
consideration of the evidence led by the prosecution found the appellant guilty
of offence under Section 302 I.P.C.
trial Court relied upon the following circumstances to find the accused guilty.
Extra judicial confession made by the appellant before Murad Khan (PW-1), Bablu
Kalva (PW-2), Mohd Sharif (PW-3) and Alladeen (PW-4).
The presence of the appellant in the house wherein the alleged incident took
Recovery of ear ring of the wife from the possession of the appellant.
time of hearing the reference and the appeal the primary stand taken by the
accused appellant was that the extra judicial confession relied upon by the
prosecution is not correct. It was submitted that the alleged confession
publicly standing on a platform is highly improbable. The High Court found that
the evidence of Murad Khan (PW-1) and Bablu (PW- 2) was cogent and credible.
PW-1 was a neighbour and PW-2 is the brother of the accused-appellant. There is
no reason as to why they would falsely implicate the accused-appellant by
making an untruthful statement. Added to that, evidence of PW-1 about the behaviour
of the appellant was relevant. The third circumstance was the recovery of
ornament from the possession of the appellant. The circumstances highlighted by
the prosecution according to the High Court presented a complete chain of
circumstances. Though it was submitted by the accused-appellant that even if
the prosecution case was accepted in its totality, there was no special reason
to impose the death sentence. The High Court considered this plea in the
background of what has been stated by this Court in Machhi Singh and Ors. v.
State of Punjab (1983 (3) SCC 470) and Bachan Singh
v. State of Punjab (1980 (2) SCC 684). Reference was
also made to the decision in State of Rajasthan v. Kheraj Ram (2003 (8) SCC 224). The High Court was of the view that
the appellant had acted in a most cruel and diabolic manner.
deliberately planned and meticulously executed the same.
was not even any remorse for such gruesome acts. On the contrary, he was
satisfied with what he had done. He made a declaration of his act of abusing
his wife and children.
the death sentence was confirmed.
stand taken by the accused-appellant before the High Court was re-iterated in
this appeal. Additionally, it was stated that the accused was in a state of
drunkenness and did not know the consequences of what he did and, therefore,
death sentence should not have been awarded.
contrary, learned counsel for the State submitted that the cruel and diabolic
acts of the accused show that he does not deserve any leniency so far as the
sentence is concerned. Drunkenness cannot be an excuse for such cruel and
been consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all
the incriminating facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person. (See Hukam Singh v.
State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad
(AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State
of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee
v. State of M.P. (AIR 1989 SC 1890). The
circumstances from which an inference as to the guilt of the accused is drawn
have to be proved beyond reasonable doubt and have to be shown to be closely connected
with the principal fact sought to be inferred from those circumstances. In Bhagat
Ram v. State of Punjab (AIR 1954 SC 621), it was laid down
that where the case depends upon the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring the offences home beyond any reasonable
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:
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
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:
circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established;
circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused;
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
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.
State of U.P. v. Ashok Kumar Srivastava, (AIR
1992 SC 840), it was pointed out that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably capable of
two inferences, the one in favour of the accused must be accepted. It was also
pointed out that the circumstances relied upon must be found to have been fully
established and the cumulative effect of all the facts so established must be
consistent only with the hypothesis of guilt.
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:
facts alleged as the basis of any legal inference must be clearly proved and
beyond reasonable doubt connected with the factum probandum;
burden of proof is always on the party who asserts the existence of any fact,
which infers legal accountability;
all cases, whether of direct or circumstantial evidence the best evidence must
be adduced which the nature of the case admits;
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,
there be any reasonable doubt of the guilt of the accused, he is entitled as of
right to be acquitted".
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.
Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
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
the circumstances should be of a conclusive nature and tendency and they should
be such as to exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability the
act must have been done by the accused." A reference may be made to a
later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while
dealing with circumstantial evidence, it has been held that onus was on the
prosecution to prove that the chain is complete and the infirmity of lacuna in
prosecution cannot be cured by false defence or plea. The conditions precedent
in the words of this Court, before conviction could be based on circumstantial
evidence, must be fully established. They are:
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
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;
circumstances should be of a conclusive nature and tendency;
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.
only other thing which needs consideration is whether death sentence as awarded
by trial Court is proper.
302 IPC prescribes death or life imprisonment as the penalty for murder. While
doing so, the Code instructs the court as to its application. The changes which
the Code has undergone in the last three decades clearly indicate that
Parliament is taking note of contemporary criminological thought and movement.
It is not difficult to discern that in the Code, there is a definite swing
towards life imprisonment.
sentence is ordinarily ruled out and can only be imposed for "special
reasons", as provided in Section 354(3).
is another provision in the Code which also uses the significant expression
"special reason". It is Section 361.
360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal
Procedure Code, 1898 (in short "the old Code"). Section 361 which is
a new provision in the Code makes it mandatory for the court to record
"special reasons" for not applying the provisions of Section 360.
Section 361 thus casts a duty upon the court to apply the provisions of Section
360 wherever it is possible to do so and to state "special reasons"
if it does not do so. In the context of Section 360, the "special
reasons" contemplated by Section 361 must be such as to compel the court
to hold that it is impossible to reform and rehabilitate the offender after
examining the matter with due regard to the age, character and antecedents of
the offender and the circumstances in which the offence was committed. This is
some indication by the legislature that reformation and rehabilitation of
offenders and not mere deterrence, are now among the foremost objects of the
administration of criminal justice in our country. Section 361 and Section
354(3) have both entered the statute-book at the same time and they are part of
the emerging picture of acceptance by the legislature of the new trends in
would not, therefore, be wrong to assume that the personality of the offender
as revealed by his age, character, antecedents and other circumstances and the
tractability of the offender to reform must necessarily play the most prominent
role in determining the sentence to be awarded.
reasons must have some relation to these factors, Criminal justice deals with
complex human problems and diverse human beings. A Judge has to balance the
personality of the offender with the circumstances, situations and the reactions
and choose the appropriate sentence to be imposed.
should be borne in mind that before the amendment of Section 367(5) of the old
Code, by the Criminal Procedure Code (Amendment) Act, 1955 (26 of 1955) which
came into force on 1.1.1956, on a conviction for an offence punishable with
death, if the court sentenced the accused to any punishment other than death,
the reason why sentence of death was not passed had to be stated in the
judgment. After the amendment of Section 367(5) of the old Code by Act 26 of
1955, it is not correct to hold that the normal penalty of imprisonment for
life cannot be awarded in the absence of extenuating circumstances which reduce
the gravity of the offence. The matter is left, after the amendment, to the
discretion of the court. The court must, however, take into account all the
circumstances, and state its reasons for whichever of the two sentences it
imposes in its discretion.
the former rule that the normal punishment for murder is death is no longer operative
and it is now within the discretion of the court to pass either of the two
sentences prescribed in this section; but whichever of the two sentences he
passes, the Judge must give his reasons for imposing a particular sentence. The
amendment of Section 367(5) of the old Code does not affect the law regulating
punishment under IPC. This amendment relates to procedure and now courts are no
longer required to elaborate the reasons for not awarding the death penalty;
but they cannot depart from sound judicial considerations preferring the lesser
354(3) of the Code marks a significant shift in the legislative policy
underlying the old Code as in force immediately before 1.4.1974, according to
which both the alternative sentences of death or imprisonment for life provided
for murder were normal sentences. Now, under Section 354(3) of the Code the
normal punishment for murder is imprisonment for life and death penalty is an
court is required to state the reasons for the sentence awarded and in the case
of death sentence "special reasons" are required to be stated, that
is to say, only special facts and circumstances will warrant the passing of the
in the light of these successive legislative changes in the Code that the
judicial decisions prior to the amendment made by Act 26 of 1955 and again Act
2 of 1974 have to be understood.
Court in Ediga Anamma v. State of A.P.
(1974 (4) SCC 443) has observed : (SCC pp. 453-54, para 26) "26. Let us
crystallize the positive indicators against death sentence under Indian law
currently. Where the murderer is too young or too old, the clemency or penal
justice helps him. Where the offender suffers from socio-economic, psychic or
penal compulsions insufficient to attract a legal exception or to downgrade the
crime into a lesser one, judicial commutation is permissible. Other general
social pressures, warranting judicial notice, with an extenuating impact may,
in special cases, induce the lesser penalty. Extraordinary features in the
judicial process, such as that the death sentence has hung over the head of the
culprit excruciatingly long, may persuade the court to be compassionate.
Likewise, if others involved in the crime and similarly situated have received the
benefit of life imprisonment or if the offence is only constructive, being
under Section 302, read with Section 149, or again the accused has acted
suddenly under another's instigation, without premeditation, perhaps the court
may humanely opt for life, even like where a just cause or real suspicion of
wifely infidelity pushed the criminal into the crime. On the other hand, the
weapons used and the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel the heart of the
law for a sterner sentence. We cannot obviously feed into a judicial computer
all such situations since they are astrological imponderables in an imperfect
and undulating society. A legal policy on life or death cannot be left for ad
hoc mood or individual predilection and so we have sought to objectify to the
extent possible, abandoning retributive ruthlessness, amending the deterrent
creed and accenting the trend against the extreme and irrevocable penalty of
putting out of life." In Bachan Singh's case (supra) it has been observed
that: (SCC p. 751, para 209) "A real and abiding concern for the dignity
of human life postulates resistance to taking a life through law's
ought not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed." A balance sheet of aggravating and
mitigating circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstances before the
option is exercised. In order to apply these guidelines, inter alia, the
following questions may be asked and answered, (a) is there something uncommon
about the crime which renders sentence of imprisonment for life inadequate and
calls for a death sentence?; and (b) are the circumstances of the crime such
that there is no alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in favour of the
offender? Another decision which illuminatingly deals with the question of
death sentence is Machhi Singh's case (supra).
Singh (supra) and Bachan Singh (supra) cases the guidelines which are to be
kept in view when considering the question whether the case belongs to the
rarest of the rare category were indicated.
Singh case (supra) it was observed: (SCC p. 489, para 39) The following
questions may be asked and answered as a test to determine the 'rarest of the
rare' case in which death sentence can be inflicted:-
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
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's case (supra) will have to be applied to the
facts of each individual case where the question of imposition of death
sentence arises: (SCC p. 489, para 38):-
The extreme penalty of death need not be inflicted except in gravest cases of
Before opting for the death penalty the circumstances of the `offender' also
require to be taken into consideration along with the circumstances of the
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.
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.
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:
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.
When the murder is committed for a motive which evinces total depravity and
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.
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.
When the crime is enormous in proportion.
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.
When the victim of murder is an innocent child, or a helpless woman or old or
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.
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
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.
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.
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
it is the correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of circulation, and
sometimes even the traffic results of his crime. Inevitably these
considerations cause a departure from just desert as the basis of punishment
and create cases of apparent injustice that are serious and widespread.
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
practice of punishing all serious crimes with equal severity is now unknown in
civilized societies, but such a radical departure from the principle of
proportionality has disappeared from the law only in recent times. Even now a
single grave infraction that is thought to call for uniformly drastic measures.
Anything less than a penalty of greatest severity for any serious crime is
thought then to be a measure 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.
85 IPC deals with act of a person incapable of judgment by reason of
intoxication caused against his will. As the heading of the provision itself
shows, intoxication must have been against his will and/or the thing which he
intoxicated was administered to him without his knowledge.
is no specific plea taken in the present case about intoxicant having
administered without appellant's knowledge.
expression "without his knowledge" simply means an ignorance of the
fact that what is being administered to him is or contains or is mixed with an
of drunkenness can be availed of only when intoxication produces such a
condition as the accused loses the requisite intention for the offence. The onus
of proof about reason of intoxication due to which the accused had become
incapable of having particular knowledge in forming the particular intention is
on the accused. Basically, three propositions as regards the scope and ambit of
Section 85 IPC are as follows:
The insanity whether produced by drunkenness or otherwise is a defence to the
Evidence of drunkenness which renders the accused incapable of forming the
specific intent essential to constitute the crime should be taken into account
with the other facts proved in order to determine whether or not he had this
The evidence of drunkenness falling short of a proved incapacity in the accused
to form the intent necessary to constitute the crime and merely establishing
that his mind is affected by drink so that he more readily give to some violent
passion, does not rebut the presumption that a man intends the natural
consequences of his acts.
instant case, the plea of drunkenness can never be an excuse for the brutal,
diabolic acts of the accused. The trial Court and the High Court have rightly
treated the case to be one falling in rarest of rare category thereby
attracting the death sentence.
brutal acts done by the accused-appellant are diabolic in conception and cruel
in execution. The acts were not only brutal but also inhuman with no remorse
for the same. Merely because he claims to be a drunk at the relevant point of
time, that does not in any way get diluted not because of what is provided in
Section 85 IPC but because one after another five lives were taken and that too
of four young children. This case squarely falls under the rarest of rare
category to warrant death sentence.
appeal deserves dismissal which we direct.