REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 117 OF 2007
Bantu ...Appellant
Vs.
The State of U.P. ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
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.
2. Prosecution 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 of Vishal.
The broad features of the case as culled out from the
FIR and evidence brought on record is as follows:
There was "Devi Jagran" at the house of Chandrasen
2
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 family.
Chandrasen alias 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
3
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 dead.
Upon interrogation, 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
4
years and about one day had passed since she died. The
following ante mortem injuries were found on her person:
1. Multiple 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.
2. Abrasion 2cm x 4cm present over
posterior aspect of both elbows and right wrist.
3. Labia minora of both sides in posterior
parts contused. Hymen ruptured free and
clotted blood seen in vagina.
4. Green wooden stick found inserted in
vagine. Length of external part of stick 24 cm.
Incompletely broken 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.
5
Dried blood present on external part of stick.
Internal examination 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 not.
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
deceased.
,
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 P.M.
that night. Rather, he testified that the injuries could be
sustained between 10-11 P.M. that night.
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.
7
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 sentence
5. Since confirmation of death sentence needed approval
of the High Court, reference was made to the High Court.
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
9
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
10
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
11
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 doubt.
12. We may also make a reference to a decision of this
12
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
following tests:
"(1) the circumstances from which an
inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2) those circumstances should be of a
definite tendency unerringly pointing towards
guilt of the accused;
(3) the circumstances, taken
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
guilt.
15. Sir Alfred Wills in his admirable book "Wills'
14
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.
15
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.
Again, the 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
16
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
17
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
18
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
19
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
20
social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.
Therefore, law as a corner-stone of the edifice of "order"
should meet the challenges confronting the society. Friedman
in his "Law in Changing Society" stated that, "State of criminal
law continues to be - as it should be - a decisive reflection of
social consciousness of society". Therefore, in operating the
sentencing system, law should adopt the corrective machinery
or the deterrence based on factual matrix. By deft modulation
sentencing process be stern where it should be, and tempered
with mercy where it warrants to be. The facts and given
circumstances in each case, the nature of the crime, the
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
21
deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710),
this Court while refusing to reduce the death sentence
observed thus:
"It will be a mockery of justice to permit
the accused to escape the extreme penalty of
law when faced with such evidence and such
cruel acts. To give the lesser punishment for
the accused would be to render the justicing
system of the country suspect. The common
man will lose faith in courts. In such cases, he
understands and appreciates the language of
deterrence more than the reformative jargon."
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
22
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.
25. Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it
remains a strong influence in the determination of sentences.
The practice of punishing all serious crimes with equal
severity is now unknown in civilized societies, but such a
radical departure from the principle of proportionality has
23
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 pun-
24
ishment 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 issue.
25
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 system.
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
26
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 relevance.
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
28
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 culpability.
(ii) Before opting for the death penalty the
circumstances of the `offender' also
require to be taken into consideration
along with the circumstances of the
`crime'.
(iii) Life imprisonment is the rule and
death sentence is an exception. In other
words death sentence must be imposed
only when life imprisonment appears to
be an altogether inadequate punishment
having regard to the relevant
circumstances of the crime, and provided,
and only provided, the option to impose
sentence of imprisonment for life cannot
be conscientiously exercised having
regard to the nature and circumstances of
the crime and all the relevant
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
weightage 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 community.
(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 motherland.
(3) When murder of a member of a
Scheduled Caste or minority community,
etc. is committed not for personal
reasons but in circumstances which
arouse social wrath; or in cases of `bride
burning' or `dowry deaths' or when
murder is committed in order to remarry
for the sake of extracting dowry once
again or to marry another woman on
account of infatuation.
(4) When the crime is enormous in
proportion. For instance when multiple
murders, say of all or almost all the
members of a family or a large number of
persons of a particular caste, community,
or locality, are committed.
(5) When the victim of murder is an
innocent child, or a helpless woman or
old or 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
32
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:
"Punishment is 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 else...
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 or
not."
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 the State.
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.
.............................................J.
(Dr. ARIJIT PASAYAT)
.............................................J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
July 23, 2008
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