Bantu Vs. State of
U.P.  INSC 1208 (23 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 117 OF 2007 Bantu
...Appellant The State of U.P. ...Respondent
Dr. ARIJIT PASAYAT,
1. Death sentence
awarded by learned Special Judge EC Act/Additional Sessions Judge, Agra in
Sessions Trial No. 83 of 2004 having been confirmed by the Allahabad High Court
in appeal and in the reference made under Section 366 of the Code of Criminal
Procedure, 1973 (in short the `code') this appeal has been filed. The appellant
was convicted for offences 1 punishable under Sections 364, 376 and 302 of the
Indian Penal Code, 1860 (in short the `IPC'). The girl who had not seen six
summers in life was the victim of sexual assault and animal lust of the accused
appellant. She was not only raped but was murdered by the accused appellant.
version as unfolded during trial read as follows:
The genesis of the
prosecution case was the written FIR lodged at Police Station Tajganj of Agra
District on 4.10.2003 at 10.45 PM by Naresh Kumar (PW 2). The occurrence took
place at about 9.30 O'clock the same night in village Basai Khurd within the
said police station. The victim was an unfortunate teenaged girl Vaishali of
about 5 years.
She was the daughter
The broad features of
the case as culled out from the FIR and evidence brought on record is as
There was "Devi
Jagran" at the house of Chandrasen alias Taplu (PW 3) in village Basai
Khurd in the eventful night.
A number of persons
of the locality had assembled there. The informant- Naresh Kumar (PW2)
alongwith his brother Vishal and niece Vaishali (hereinafter referred to as the
`deceased') had also gone there. Around 9 P.M. the accused Bantu-a neighbour of
the informant reached there. After exhibiting playful and friendly gestures
with Vaishali with whom he was familiar before because of neighborhood, enticed
her away on the pretext of giving her a balloon. Several persons including
Naresh Kumar (PW 2) and Nand Kishore (PW 6) saw him going away with the girl
from the place of "Devi Jagran". When Vaishali did not return for a
long time, a frantic search was made to trace her out by the members of the
Taplu (PW 3) and Sanjiv son of Daulat Ram informed them that they had seen the
accused Bantu going with Vaishali hoisted on his waist towards the pond. Around
9.30 PM they reached near the field of one Dharma in which grown up Dhaincha
plants were there. With the help of torches they saw that the accused Bantu was
thrusting a stem/stick of Dhaincha in the vagina of Vaishali having thrown her
down. An alarm was raised, by them and Bantu was caught red handed in
completely naked state. Vaishali was lying on the ground unconscious with a
part of stem of Dhaincha inserted in her vagina. She was bleeding profusely.
She had other
injuries also on her person and was not responding at all. She was instantly
rushed to S.N. Medical College, Agra where the doctors pronounced her to be
the accused Bantu allegedly admitted that after committing the rape he inserted
stem/stick in her vagina to murder her.
On the case being
registered, the investigation was taken up by SHO Dalip Kumar Mittal (PW 7). Major
part of the investigation was conducted by him but the charge sheet came to be
submitted by subsequent Investigating officer R.K. Dwivedi (PW 8).
A panel of two
doctors headed by Dr. R.S. Chahar (PW 1) conducted post-mortem over the dead
body of the deceased on 5.10.2003 at 3 P.M. The deceased was aged about five
years and about one day had passed since she died. The following ante mortem
injuries were found on her person:
contusion over face and head, more on right side, ranging in size from .5 cm to
.5cm x 3cm. Lips were contused with swelling multiple nail marks present over
left side on her neck and behind the left ear.
2cm x 4cm present over posterior aspect of both elbows and right wrist.
minora of both sides in posterior parts contused. Hymen ruptured free and
clotted blood seen in vagina.
wooden stick found inserted in vagine. Length of external part of stick 24 cm.
in two parts. On internal examination, stick of 33 cm length found inside vagina,
in continuation with external part of stick. Thus total length of the stick was
57 cm x .8cm in diameter at most of places.
blood present on external part of stick.
revealed that small and large intestine were perforated at places due to
insertion of the stick. The stomach contained semi digested food of about
200ml. Free and clotted blood was present in the cavity. The mesenteric vessels
in the abdomen were torn due to insertion of wooden stick. Uterus was small in
size and was ruptured due to insertion of wooden stick into the vagina. The
walls of cervix were lacerated. Slides of vaginal swab were prepared for
examination. The wooden stick inserted inside vagina was sealed. No spot of
semen was found on the part of the body.
Due to precarious
condition of vagina, it was not possible to say whether rape was committed or
In the opinion of the
doctor, the death was caused due to shock and haemorrhage as a result of ante
mortem injuries due to insertion of the wooden stick into the vagina of the
, A 6 The jeans pant
of the accused was sent for chemical analysis to ascertain marks of blood and
semen. As per the Doctor examining the accused, injuries could be caused by
blunt object and were fresh in nature. The accused was fully capable of
performing the act of rape. The injury report Ex.
Ka-5 was prepared.
According to the Doctor since no smegma was found present on the glans penis of
the accused and it was clean, it was inferred that he had committed sexual
intercourse. Smegma gets removed from the glans penis during sexual
intercourse. The abrasions on the genitals of the accused supported his view.
The Doctor denied the suggestion that the injuries could be sustained at 7-8
that night. Rather,
he testified that the injuries could be sustained between 10-11 P.M. that
The defence was of
denial and false implication due to enmity of witnesses arising out of land
dispute. The accused, however, admitted that he was the neighbour of the
informant and that there was a Devi Jagran at the house of Chandrasen alias
Taplu (PW 3) in the eventful night. Other facts were denied by him in his
statement under Section 313 Cr.P.C.
3. In order to
establish the guilt of the accused appellant the prosecution in all examined 8
witnesses. Out of them, Naresh Kumar (PW 2) (informant and uncle of the
deceased), Chandrasen alias Taplu (PW 3) and Nand Kishore (PW 6) were material
witnesses of fact who supported the prosecution case in its entirety.
4. The trial court
observed that the witnesses of fact were not supposed to manufacture false
evidence play on the imagination. They truthfully narrated what they saw with
their own eyes and their testimonial assertions went a long way to prove the
factum of rape having been committed by the accused on the unfortunate child.
The trial court found the accused guilty and sentenced him as under:
S.No. Section under
which Quantum of Punishment awarded punishment
1. 364 IPC 10 Years'
rigorous imprisonment with a fine of Rs.10,000/- with stipulation of two years'
further simple imprisonment in default of payment 8 of fine.
2. 376 IPC Life
Imprisonment with a fine of Rs.15,000/- with stipulation of three years' simple
imprisonment in default of payment of fine.
3. 302 IPC Death
5. Since confirmation
of death sentence needed approval of the High Court, reference was made to the
6. In support of the
appeal before the High Court it was submitted that the circumstances do not
make out the alleged offence. The High Court did not accept it. Placing
reliance on the evidence on Naresh Kumar (PW2), Chandrasen (PW3) and three
others who had taken the accused to the police station the conviction was
accorded. It was noted that the accused was found in a naked condition at the
spot and was caught by PW 2,3 and others. He was not wearing any underwear. The
pant which he was made to wear before he was taken to the police station was
seized by the police and was sent for chemical examination to ascertain marks
of blood, semen etc.
The chemical examiner
in its report found blood stains, sperms and semen on the pant of the deceased.
7. The High Court
also noticed that in order to camouflage the serious kind of rape in a planned
manner and after committing rape he mercilessly inserted wooden stick deep
inside the fragile vagina of the girl to the extent of 33cms to cause her
death, with a view to masquerade the crime as an accident. The High Court did not
find any merit in the appeal and it was with a view that the death sentence was
the appropriate sentence.
8. The stand taken
before the High Court was reiterated. Additionally it was submitted that the
case was one where even if prosecution version is accepted in toto death
sentence was not the appropriate sentence.
9. Learned counsel
for the respondent on the other hand supported the judgments of the trial court
and the High Court and submitted that this was a case belonging to the rarest
of rare category. Death sentence was the appropriate sentence.
10. Before analyzing
factual aspects it may be stated that for a crime to be proved it is not
necessary that the crime must be seen to have been committed and must, in all
circumstances be proved by direct ocular evidence by examining before the Court
those persons who had seen its commission. The offence can be proved by
circumstantial evidence also. The principal fact or factum probandum may be
proved indirectly by means of certain inferences drawn from factum probans,
that is, the evidentiary facts. To put it differently circumstantial evidence
is not direct to the point in issue but consists of evidence of various other
facts which are so closely associated with the fact in issue that taken
together they form a chain of circumstances from which the existence of the
principal fact can be legally inferred or presumed.
11. It has been
consistently laid down by this Court that where a case rests squarely on
circumstantial evidence, the 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
12. 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 cir- cumstances
should be complete and there should be no gap left in the chain of evidence.
Further the proved
circumstances must be consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence....".
13. In Padala Veera
Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a
case rests upon circumstantial evidence, such evidence must satisfy the
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;
circumstances, taken 13 cumulatively should form a chain so complete that
there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else;
and (4) the
circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence."
14. In State of U.P.
v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great
care must be taken in evaluating circumstantial evidence and if the evidence
relied on is reasonably capable of two inferences, the one in favour of the
accused must be accepted. It was also pointed out that the circumstances relied
upon must be found to have been fully established and the cumulative effect of
all the facts so established must be consistent only with the hypothesis of
15. 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, (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted".
16. There is no doubt
that conviction can be based solely on circumstantial evidence but it should be
tested by the touch-stone of law relating to circumstantial evidence laid down
by the this Court as far back as in 1952.
17. In Hanumant
Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343),
wherein it was observed thus:
"It is well to
remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should be in the
first in- stance be fully established and all the facts so established should
be consistent only with the hypothesis of the guilt of the accused.
circumstances should be of a con- clusive nature and tendency and they should
be such as to exclude every hypothesis but the one proposed to be proved. In
other words, there must be a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability the
act must have been done by the ac- cused."
18. A reference may
be made to a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial
evidence, it has been held that onus was on the prosecution to prove that the
chain is complete and the infirmity of lacuna in prosecution cannot be cured by
false defence or plea. The conditions precedent in the words of this Court,
before conviction could be based on circumstantial evidence, must be fully
established. They are:
(1) the circumstances
from which the conclusion of guilt is to be drawn should be fully established.
The circumstances con- cerned must or should and not may be estab- lished;
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances
should be of a conclusive nature and tendency;
(4) they should
exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so compete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused.
19. It is obvious
that he wanted to camouflage the serious crime of rape committed by him over
the 5 years old girl. So in a planned manner, after committing rape, he
mercilessly inserted stem/stick deep inside the fragile vagina of the girl to
the extent of 33 cms. to cause her death, with a view to masquerade the crime
as an accident. It was his cruel innovation that he inserted a stick deep into
her vagina causing death of the victim. It was just by providence that due to
timely reach of the witnesses (PWs 2, 3 & others) (who were frantically
searching the girl) he could be caught in naked condition while inserting stick
into the vagina of the victim. He was near the lifeless body of the victim.
20. The offence of
rape occurs in Chapter XVI of IPC. It is an offence affecting the human body.
In that Chapter, there is a separate heading for `Sexual offence', which
encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. `Rape' is
defined in Section 375. Sections 375 and 376 have been substantially changed by
Criminal Law (Amendment) Act, 1983, and several new sections were introduced by
the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes
were introduced reflects the legislative intent to curb with iron hand, the
offence of rape which affects the dignity of a woman. The offence of rape in
its simplest term is `the ravishment of a woman, without her consent, by force,
fear or fraud', or as `the carnal knowledge of a woman by force against her
will'. `Rape' or `Raptus' is when a man hath carnal knowledge of a woman by
force and against her will (Co. Litt. 123-b); or as expressed more fully,' rape
is the carnal knowledge of any woman, above the age of particular years,
against her will; or of a woman child, under that age, with or against her
will' (Hale PC 628). The essential words in an indictment for rape are rapuit
and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution
without the word rapuit, are not sufficient in a legal sense to express rape;
1 Hon.6, 1a, 9 Edw.
4, 26 a (Hale PC 628). In the crime of rape, `carnal knowledge' means the
penetration to any the slightest degree of the organ alleged to have been
carnally known by the male organ of generation (Stephen's "Criminal
Law" 9th Ed. p.262). In `Encyclopoedia of Crime and Justice' (Volume 4,
page 1356) it is stated "......even slight penetration is sufficient and
emission is unnecessary". In Halsbury's Statutes of England and Wales
(Fourth Edition) Volume 12, it is stated that even the slightest degree of
penetration is sufficient to prove sexual intercourse. It is violation with
violence of the private person of a woman-an-outrage by all means. By the very
nature of the offence it is an obnoxious act of the highest order.
21. The physical scar
may heal up, but the mental scar will always remain. When a woman is ravished,
what is inflicted is not merely physical injury but the deep sense of some
deathless shame. In the instant case, the victim aged about five years was not
only raped, but was murdered in a diabolic manner.
22. The law regulates
a social interests, arbitrates conflicting claims and demands. Security of
persons and property of the people is an essential function of the State. It
could be achieved through instrumentality of criminal law.
Undoubtedly, there is
a cross cultural conflict where living law must find answer to the new
challenges and the courts are required to mould the sentencing system to meet
the challenges. The contagion of lawlessness would undermine 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
Therefore, law as a
corner-stone of the edifice of "order"
should meet the
challenges confronting the society. Friedman in his "Law in Changing
Society" stated that, "State of criminal law continues to be - as it
should be - a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective
machinery or the deterrence based on factual matrix. By deft modulation
sentencing process be stern where it should be, and tempered with mercy where
it warrants to be. The facts and given circumstances in each case, the nature
of the crime, the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature of weapons used
and all other attending circumstances are relevant facts which would enter into
the area of consideration. For instance a murder committed due to deep- seated
mutual and personal rivalry may not call for penalty of death. But an organised
crime or mass murders of innocent people would call for imposition of death
sentence as 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
23. Therefore, undue
sympathy to impose inadequate sentence would do more harm to the justice system
to undermine the public confidence in the efficacy of law and society could not
long endure under such serious threats. It is, therefore, the duty of every
court to award proper sentence having regard to the nature of the offence and
the manner in which it was executed or committed etc. This position was
illuminatingly stated by this Court in Sevaka Perumal etc. v.
State of Tamil Naidu
(AIR 1991 SC 1463).
24. The criminal law
adheres in general to the principle of proportionality in prescribing liability
according to the 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.
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
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 disproportionate punishment has some very
undesirable practical consequences.
26. After giving due
consideration to the facts and cir- cumstances of each case, for deciding just
and appropriate sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been committed are to
be delicately balanced on the basis of really relevant circumstances in a
dispassionate manner by the Court. Such act of balancing is indeed a difficult
task. It has been very aptly indicated in Dennis Councle MCG Dautha v. State of
Callifornia: 402 US 183: 28 L.D. 2d 711 that no for- mula of a foolproof nature
is possible that would provide a rea- sonable criterion in determining a just
and appropriate punishment in the infinite variety of circumstances that may
affect the gravity of the crime. In the absence of any foolproof for- mula
which may provide any basis for reasonable criteria to correctly assess various
circumstances germane to the consid- eration of gravity of crime, the
discretionary judgment in the facts of each case, is the only way in which such
judgment may be equitably distinguished.
27. In Jashubha
Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held by
this Court that in the matter of death sentence, the Courts are required to
answer new challenges and mould the sentencing system to meet these challenges.
The object should be to protect the society and to deter the criminal in
achieving the avowed object to law by imposing appropriate sentence. It is
expected that the Courts would operate the sentencing system so as to impose
such sentence which reflects the conscience of the society and the sentencing
process has to be stern where it should be.
Even though the
principles were indicated in the background of death sentence and life
sentence, the logic applies to all cases where appropriate sentence is the
28. Imposition of
sentence without considering its effect on the social order in many cases may
be in reality a futile exercise. The social impact of the crime, e.g. where it
relates to offences against women, dacoity, kidnapping, misappropriation of
public money, treason and other offences involving moral turpitude or moral
delinquency which have great impact on social order, and public interest,
cannot be lost sight of and per se require exemplary treatment. Any liberal
attitude by imposing meager sentences or taking too sympathetic view merely on
account of lapse of time in respect of such offences will be result-wise
counter productive in the long run and against societal interest which needs to
be cared for and strengthened by string of deterrence inbuilt in the sentencing
29. In Dhananjoy
Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has observed that
shockingly large number of criminals go unpunished thereby increasingly,
encouraging the criminals and in the ultimate making justice suffer by
weakening the system's creditability. The imposition of appropriate punishment
is the manner in which the Court responds to the society's cry for justice
against the criminal.
Justice demands that
Courts should impose punishment befitting the crime so that the Courts reflect
public abhorrence of the crime. The Court must not only keep in view the rights
of the criminal but also the rights of the victim of the crime and the society
at large while considering the imposition of appropriate punishment.
30. Similar view has
also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has
been held in the said case that it is the nature and gravity of the crime but
not the criminal, which are germane for consideration of appropriate punishment
in a criminal trial. The Court will be failing in its duty if appropriate
punishment is not awarded for a crime which has been committed not only against
the individual victim but also against the society to which the criminal and
victim belong. The punishment to be awarded for a crime must not be irrelevant
but it should conform to and be consistent with the atrocity and brutality with
which the crime has been perpetrated, the enormity of the crime warranting 27
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
31. These aspects
have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC 712].
32. In Bachan Singh
v. State of Punjab [1980 (2) SCC 684] a Constitution Bench of this Court at
para 132 summed up the position as follows: (SCC p.729) "132. To sum up,
the question whether or not death penalty serves any penological purpose is a
difficult, complex and intractable issue. It has evoked strong, divergent
views. For the purpose of testing the constitutionality of the impugned
provision as to death penalty in Section 302, Penal Code on the ground of
reasonableness in the light of Articles 19 and 21 of the Constitution, it is
not necessary for us to express any categorical opinion, one way or the other,
as to which of these two antithetical views, held by the Abolitionists and
Retentionists, is correct. It is sufficient to say that the very fact that
persons of reason, learning and light are rationally and deeply divided in
their opinion on this issue, is a ground among others, for rejecting the
petitioners' argument that retention of death penalty in the impugned
provision, is totally devoid of reason and purpose. If, notwithstanding the
view of the Abolitionists to the contrary, a very large segment of people, the
world over, including sociologists, legislators, jurists, judges and
administrators still firmly believe in the worth and necessity of capital
punishment for the protection of society, if in the perspective of prevailing
crime conditions in India, contemporary public opinion channelised through the
people's representatives in Parliament, has repeatedly in the last three
decades, rejected all attempts, including the one made recently, to abolish or
specifically restrict the area of death penalty, if death penalty is still a
recognised legal sanction for murder or some types of murder in most of the
civilised countries in the world, if the framers of the Indian Constitution
were fully aware -- as we shall presently show they were -- of the existence of
death penalty as punishment for murder, under the Indian Penal Code, if the
35th Report and subsequent reports of the Law Commission suggesting retention
of death penalty, and recommending revision of the Criminal Procedure Code and
the insertion of the new Sections 235(2) and 354(3) in that Code providing for
pre-sentence hearing and sentencing procedure on conviction for murder and
other capital offences were before Parliament and presumably considered by it
when in 1972-73 it took up revision of the Code of 1898 and replaced it by the
Code of Criminal Procedure, 1973, it is not possible to hold that the provision
of death penalty as an alternative punishment for murder, in Section 302, Penal
Code is unreasonable and not in the public interest. We would, therefore,
conclude that the impugned provision in 29 Section 302, violates neither the
letter nor the ethos of Article 19."
33. Similarly in
Machhi Singh v. State of Punjab [1983 (3) SCC 470] in para 38 the position was
summed up as follows:
(SCC p. 489)
"38. In this background the guidelines indicated in Bachan Singh's case
(supra) will have to be culled out and applied to the facts of each individual
case where the question of imposing of death sentence arises. The following
propositions emerge from Bachan Singh's case (supra):
(i) The extreme
penalty of death need not be inflicted except in gravest cases of extreme
(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'.
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 30 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 weight age and a just
balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised."
34. The position was
again reiterated in Devender Pal Singh v. State of NCT of Delhi [2002 (5)SCC
234 ] : (SCC p. 271, para 58) "58. From Bachan Singh's case (supra) and
Machhi Singh's case (supra) the principle culled out is that when the
collective conscience of the community is so shocked, that it will expect the
holders of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of retaining death
penalty, the same can be awarded. It was observed:
The community may
entertain such sentiment in the following circumstances:
(1) When the murder
is committed in an extremely brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and extreme indignation of the
(2) When the murder
is committed for a motive which evinces total depravity and meanness; e.g.
murder by hired assassin 31 for money or reward; or 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
(3) When murder of a
member of a Scheduled Caste or minority community, etc. is committed not for
personal reasons but in circumstances which arouse social wrath; or in cases of
`bride burning' or `dowry deaths' or when murder is committed in order to
remarry for the sake of extracting dowry once again or to marry another woman
on account of infatuation.
(4) When the crime is
enormous in proportion. For instance when multiple murders, say of all or
almost all the members of a family or a large number of persons of a particular
caste, community, or locality, are committed.
(5) When the victim
of murder is an innocent child, or a helpless woman or old or infirm person or
a person vis-`-vis whom the murderer is in a dominating position, or a public
figure generally loved and respected by the community."
35. If upon taking an
overall global view of all the circumstances in the light of the aforesaid
propositions and taking into account the answers to the questions posed by way
of the test for the rarest of rare cases, the circumstances of the case are such
that death sentence is warranted, the court would proceed to do so.
36. What is culled
out from the decisions noted above is that while deciding the question as to
whether the extreme penalty of death sentence is to be awarded, a balance sheet
of aggravating and mitigating circumstances has to be drawn up.
37. Lord Justice
Denning, Master of the Rolls of the Court of Appeals in England said to the
Royal Commission on Capital Punishment in 1950:
the way in which society expresses its denunciation of wrong doing; and, in
order to maintain respect for the law, it is essential that the punishment
inflicted for grave crimes should adequately reflect the revulsion felt by the
great majority of citizens for them. It is a mistake to consider the objects of
punishments as being a deterrent or reformative or preventive and nothing
The truth is that
some crimes are so outrageous that society insists on adequate punishment,
because the wrong doer deserves it, irrespective of whether it is a deterrent
In J.J. Rousseau's
The Social Contract written in 1762, he says the following:
33 Again, every
rogue who criminously attacks social rights becomes, by his wrong, a rebel and
a traitor to his fatherland. By contravening its laws, he ceases to be one of
its citizens: he even wages war against it. In such circumstances, the State
and he cannot both be saved: one or the other must perish. In killing the
criminal, we destroy not so much a citizen as an enemy. The trial and judgments
are proofs that he broken the Social Contract, and so is no longer a member of
38. The case at hand
falls in the rarest of rare category.
The depraved acts of
the accused call for only one sentence that is death sentence.
39. Looked at from
any angle the judgment of the High Court, confirming the conviction and
sentence imposed by the trial court, do not warrant any interference.
40. We record our
appreciation for the able assistance rendered by Mr. Shankar Divate, learned
amicus curiae in the true spirit of friend and officer of the Court.
41. The appeal fails
and is dismissed.
ARIJIT PASAYAT) .............................................J.
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