Mohan Anna Chavan vs State Of Maharashtra

search of both the girls in the hilly area but the girls could not

be found and ultimately, the accused made an extra judicial

confession that he had murdered Neelam and thrown the dead

body of Neelam into a well. Meanwhile, the police had arrived.

The accused led the police to the well and the dead-body of

Neelam was found floating in the water of the well and it was

taken out. Thereafter, the inquest panchnama (Exhibit-15)

was prepared in presence of panchas by PSI Deshpande

(PW.15). He had also prepared the panchnama of the well

(Exhibit-34). The dead-body of Neelam was forwarded to the

Medical Officer, for the purpose of post-mortem examination.

The accused was taken to the police station as panchnama of

6 his arrest and seizure of blood stained clothes which were on

his person at the time of arrest was prepared. He was

interrogated in the presence of` panch witnesses including

panch witness (PW1), Mohammed Rafik Sayyed Mulla. At

about 2.00 p.m accused stated that he had concealed the

dead body of Gauri near Kalkache-Bet near Chauyndi stream

and he was ready to point out the same and he also stated

that he would show the spots where he had molested the two

girls. Accordingly this information was reduced into writing in

the form of memorandum (Exh.31) and then the accused led

the police party and panch witnesses and the accused had

showed the places where he had committed rape on Neelam

and Gauri. At the spot where he committed rape on Neelam,

the earth was found disturbed and the earth was found

bloodstained, pieces of green bangles and half burnt Bidis,

were also found on the spot, which were duly seized by the

Police. At the spot where he committed rape on Gauri, the

earth and some leaves of hybrid plant were found stained with

blood. Thereafter, the accused led them to one Kalkache-Bet

7 and showed the dead body of Gauri which was concealed in

the "Kalkache-bet" i.e. a place where bamboo trees and

bushes had grown thickly together. Accordingly the discovery

panchnama (Exh.32) was prepared and inquest panchnama of

the dead body of Gauri was prepared as per panchnama

(Exhibit-16). Ligature marks were seen on the neck of Gauri

which were noted in the inquest panchnama. Thereafter,

the dead body of Gauri was forwarded to the medical officer

for the purpose of post mortem examination. After the arrest

the accused was sent for medical examination. And his nail

clippings and blood sample was obtained and that was sent to

the Chemical Analyser. On 25.12.1999, the accused was again

interrogated in presence of the panch witnesses including

Shivaji Nalawada (P.W.3) and the accused had furnished

information that he had concealed the frocks of both the girls

in the bushes near Chaundi stream and he was ready to point

out the same. This information was reduced into writing in the

form of memorandum (Exh. 37). Pursuant to the said

information, two frocks came to be recovered at the instance

8 of the accused. After the investigation was over the charge

sheet came to be filed.

15 witnesses were examined to further the prosecution

version. This was a case based on circumstantial evidence.

Prosecution relied on the following circumstances to fasten

the guilt on the accused appellant:

"1. Last seen.

2. Motive

3. Seizure of blood stained clothes which were on the

person of the accused at the time of arrest.

4. C.A. report which shows that shirt and pant of the

accused were stained with blood Group A which is

blood group of both the deceased.

5. Blood in the nail clippings of the accused was of `A'

group which is the blood group of both the

deceased.

9 6. Recovery of dead body of Gauri at the instance of

the accused.

7. Accused pointing out the places where rape was

committed on Neelam and Gauri where the earth

was found stained with blood of "A" group and other

incriminating articles were seized.

8. Extra-judicial confession to PW 11.

9. Recovery of frock of both the deceased girls at the

instance of the accused.

10. Accused pointing out the well wherein he had

thrown Neelam.

11. False explanation by accused."

Trial court considered all the circumstances to be a

complete chain to unerringly pointing at the guilt of the

accused appellant. Accordingly, the conviction was recorded.

Appellant was awarded death sentence for the offence

punishable under Section 302 IPC while custodial sentences

were imposed for the offences punishable under Sections 363,

10 376 and 201 IPC. Appellant questioned correctness of the

judgment before the High Court and as noted above a

reference was made by the trial court in view of the death

sentence imposed.

The High Court found that all the circumstances except

the alleged confession to have been established. After

analyzing the evidence the High Court found the evidence to

be cogent and credible and affirmed the death sentence

looking into the ghastly acts committed by the appellant.

In support of the appeal learned counsel for the

appellant submitted that the case being one which rest on

circumstantial evidence, a case for conviction is not made out.

Alternatively it is submitted that death sentence was not the

proper sentence.

Learned counsel for the respondent on the other hand

supported the judgment of the trial court and the High Court

11 and submitted that this was a case belonging to the rarest of

rare category and death sentence was the appropriate

sentence.

4. 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.

12

5. 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

13 negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

6. 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 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....".

7. 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:

14

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to 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."

8. 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

15 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.

9. 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

16 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".

10. 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.

11. 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 instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human 17 probability the act must have been done by the accused."

12. 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 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;

18 (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.

13. In the instant case interestingly PW 7 and PW 8 are the

key witnesses. PWs. 7 & 8 are the wife and daughter of the

accused appellant.

14. In Joseph and Poulo v. State of Kerala [2000(5) SCC 197]

it was, inter alia, held as follows:

"The formidable 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 19 were sold to PW 11 by the appellant, were seized."

"The 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 20 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 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.

15. In Damodar v. State of Karnataka [2000 SCC (Crl) 90] it

was, inter alia, observed as follows:

"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."

21 16. The other circumstances established were the chemical

analyst's report of the clothes and nail clippings of the

accused, the recovery of the dead bodies pursuant to the

disclosure made in terms of Section 27 of the Indian Evidence

Act, 1872 (in short the `Evidence Act'), recovery of the frocks at

the instance of the accused, false explanation given and the

plea of alibi which has been rightly discarded by the courts

below. The prosecution has established that both the girls

were missing since about 6 p.m. on 3.12.1999 and the

accused appellant was seen in the company of the girl till

morning of 14.12.1994 and soon thereafter dead body of

Neelam was found and thereafter the dead body of Gauri was

found. The post mortem of Neelam was conducted on

14.12.1994 between 9.30 P.M. to 10.30 P.M. and post mortem

of Gouri was conducted on 14.12.1994 between 10.30 P.M. to

11.30 P.M. The evidence of Dr.-PW 9 clearly shows that the

girls according to him were murdered within 36 hours and the

rape has been committed on them within 48 hours before the

22 time of post mortem. Therefore, the time given by the doctors

fits with the prosecution case of timings relating to last seen.

The prosecution has been able to establish the accusations.

17. 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

23 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

24 of the highest order.

18. 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.

19. 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 sentence.

Therefore, law as a corner-stone of the edifice of "order" 25 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

26 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."

20. 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).

21. The criminal law adheres in general to the principle of

proportionality in prescribing liability according to the 27 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.

22. 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

28 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.

23. After 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

29 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.

24. 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

30 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. 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

31 for and strengthened by string of deterrence inbuilt in the

sentencing system.

26. 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.

27. Similar view has also been expressed in Ravji v. State of

Rajasthan, (1996 (2) SCC 175). It has been held in the said

32 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.

28. These aspects have been elaborated in State of M.P. v.

Munna Choubey [2005 (2) SCC 712].

33

29. 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 34 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 Section 302, violates neither the letter nor the ethos of Article 19."

30. 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)

35 "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 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 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 36 struck between the aggravating and the mitigating circumstances before the option is exercised."

31. 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 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

37 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.

32. 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 38 of the case are such that death sentence is warranted, the

court would proceed to do so.

33. 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.

34. This position is highlighted in Union of India & Ors. v.

Devendra Nath Rai [ 2006 (2) SCC 243].

35. The case at hand falls in the rarest of rare category. The

past instances highlighted above, the depraved acts of the

accused call for only one sentence that is death sentence.

36. 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.

39

37. We record our appreciation for the able assistance

rendered by learned amicus curiae in the true spirit of friend

and officer of the Court.

38. The appeal fails and is dismissed.

........................................ ...J. (Dr. ARIJIT PASAYAT)

...........................................J. (P. SATHASIVAM)

...........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, May 16, 2008

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