Shivaji @ Dadya
Shankar Alhat Vs. State of Maharashtra  INSC 1511 (5 September 2008)
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
Dr. ARIJIT PASAYAT,
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
nineyears 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
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
version as unfolded during trial is as follows:
(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
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.
3 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 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 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.
were examined to further the prosecution version.
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.
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.
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.
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 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.
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
The deceased was thus
a helpless poor girl of tender age. She had no protection of the father. She
was, therefore, a vulnerable girl.
(PW 7) has stated that the accused was residing near their house. He was not
doing any work. His wife 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
(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 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.
(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 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
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 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.
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 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.
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 14 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."
Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted
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).)"
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).
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.
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
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....".
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:
18 "(1) 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 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."
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.
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".
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.
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.
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 21 probability the act
must have been done by the accused."
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;
22 (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.
Joseph and Poulo v. State of Kerala [2000(5) SCC 197] it was, inter alia, held
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
incriminating circumstances enumerated above unmistakably and inevitably lead
to the 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.
Damodar v. State of Karnataka [2000 SCC (Crl) 90] it was, inter alia, observed
"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 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
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).
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
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.
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 in the facts of each case, is the only way
in which such judgment may be equitably distinguished.
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
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
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.
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 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.
aspects have been elaborated in State of M.P. v. Munna Choubey [2005 (2) SCC
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
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."
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
(ii) Before opting
for the death penalty the circumstances of the `offender' also require to be
taken into consideration 36 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 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."
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 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 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-`-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
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.
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 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.
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.
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.
record our appreciation for the able assistance rendered by learned amicus
curiae in the true spirit of friend and officer of the Court.
fails and is dismissed.
(Dr. ARIJIT PASAYAT)
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