SHATRUGHNA BABAN MESHRAM versus STATE OF MAHARASHTRA

SHATRUGHNA BABAN MESHRAM

STATE OF MAHARASHTRA

(Criminal Appeal Nos. 763-764 of 2016)

NOVEMBER 02, 2020

[UDAY UMESH LALIT, INDU MALHOTRA ANDKRISHNA MURARI, JJ.]

Penal Code, 1860 – s.376(1), (2)(f), (i), (m), s.376-A and s.302– Protection of Children from Sexual Offences Act, 2012 – s.6 –Rape and murder of minor girl – two-and-a-half-year-old girlwas subjected to sexual assault by her maternal uncle – The assaultwas accompanied by bites on the body of the victim – The rape wasof such intensity that there was merging of vaginal and anal orificesof the victim – The victim was taken to PW-6-doctor for medicalattention but she was already dead – The Trial Court foundcircumstances establishing the guilt of the appellant-accused – TheTrial Court held that the case was rarest of rare, one warrantingimposition of death sentence – Thus, the Trial Court by its orderawarded death sentence to the appellants on two counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment forlife under two counts, i.e. s.376(1)(2)(f), (i) and (m) of IPC and u/s.6 of POCSO Act – The High Court affirmed the conviction andthe sentence passed by the Trial Court – On appeal, held: Accordingto the prosecution, on the day in question at about 7:30 p.m. whenthe victim was with her grandfather, on the pretext that the father ofthe victim had asked the appellant to bring the victim, the appellant,who was maternal uncle of the victim, took her away, this part isconclusively established through the testimony of PW-2, thegrandfather – As deposed by PWs 1 and 2, the appellant was foundby the side of the victim at the spot – The victim was having variousinjuries whereafter she was taken for medical attention – Soon afterincident appellant was also medically examined and injuries werefound on his private parts – The proximity in terms of time and thepromptitude in reporting are crucial factors and the evidence inthat behalf is completely trustworthy – The approximate time of theinjury of the appellant as given in report is consistent with the case

CDEF

Aof prosecution – The pant of the victim was found at the spot ofincident is well established – In terms of chemical analyser’s report,the blood found on the trousers of the appellant was that of victim– This fact is also completely established – And it is matter ofrecord that as per post-mortem report and medical opinion, therewas forceful sexual assault on the victim and her death was causedBdue to injury which was in nature of multiple lacerations over vaginaland anal region; and merging of vaginal and anal orifices – Allthese circumstances stand proved beyond any doubt and bythemselves constitute conclusive and consistent chain excludingevery other hypothesis except the guilt of the appellant – TheCappellant is thus guilty of having committed offences punishableunder clauses (f), (i) and (m) of sub-section (2) of s.376 of IPC;and also, under clauses (j) and (m) of s.5 r/w s.6 of the POCSO Act,(as it stood before it was amended by Act 25 of 2019) – Sinceaccording to medical opinion, the death was because of sexualassault, the appellant is also guilty of having committed offenceDpunishable u/s. 376A of IPC.Penal Code, 1860 – ss.299, 300 and s.302 – Rape andmurder of minor child – two-and-a-half-year-old girl wassubjected to sexual assault – Her death was caused due to injuriesreceived during that assault – Whether such an act on part of theEappellant comes within the parameters of ss.299 and 300 of IPCand whether he is guilty of having committed culpable homicideamounting to murder – Held: Considering the age of the victim inthe present case, the accused must have known the consequencethat his sexual assault on child of two-and-a-half-year-old wouldFcause death or such bodily injury as was likely to cause her death– The instant matter thus comes within the parameters of clausefourthly to s.300 IPC and the question posed on this issue must beanswered against the appellant – The appellant is therefore guiltyof having committed the offence of culpable homicide amounting tomurder.G

Sentence/Sentencing – Rape and murder of minor girl – Atwo-and-a-half-year-old girl was subjected to sexual assault by hermaternal uncle – Her death was caused due to multiple injuries shereceived during such assault – The Trial Court found thatcircumstantial evidence established the guilt of the accused – TheH

Trial Court by its order awarded death sentence to the appellant ontwo counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorousimprisonment for life under two counts, i.e. s.376(1)(2)(f), (i) and(m) of IPC and u/s. 6 of POCSO Act – The death sentence wasconfirmed by the High Court – On appeal, held: Merely becausethe instant case is based on circumstantial evidence there is no reasonto commute the death sentence – The matter must be considered tosee whether the circumstantial evidence is of unimpeachablecharacter in establishing guilt of the accused or leads to anexceptional case and also whether the evidence on record is sostrong and convincing that option of sentence lesser than deathpenalty is foreclosed – In the instant case, the circumstances provedon record are clear, consistent and conclusive in nature and are ofunimpeachable character in establishing the guilt of the appellant– The evidence on record also depicts an exceptional case wheretwo and half year old girl was subjected to sexual assault – However,it cannot be said that the option of sentence lesser than deathpenalty is completely foreclosed – definite pointer in favour ofthe appellant is the fact that he did not consciously cause any injurywith the intent to extinguish the life of the victim – In matters wherethe conviction is recorded with the aid of clause fourthly u/s. 300 ofIPC, it is very rare that the death sentence is awarded – In variousSupreme Court decisions, where the victims were below 16 years ofage and had died during the course of sexual assault on them, themaximum sentence awarded was life sentence – This aspect is veryimportant – Therefore, the appellant is guilty of the offencepunishable u/s. 302 IPC, since there was no requisite intent as wouldbring the case under any of the first three clauses of s.300 IPC, theoffence in the present case does not deserve death penalty –Appellant is sentenced to life imprisonment for offence punishableu/s.302 IPC – The second count on which death sentence has beenimposed is u/s. 376A of IPC – In view of the fact that s.376A IPCwas brought on the statute book just few days before thecommission of the offence, the appellant does not deserve deathpenalty for said offence – However, the appropriate punishmentfor the offence u/s. 376A IPC must be rigorous imprisonment for aterm of 25 years – The conviction and sentence recorded by theCourts below for the offences punishable u/s. 376(1), (2)(f), (i) and(m) of IPC, and u/s.6 of the POCSO Act are affirmed.

DEF

ACode of Criminal Procedure, 1973 – s.235(2) – Penal Code, 1860– s.376(1), (2)(f), (i), (m), s.376-A and s.302 – Protection of Childrenfrom Sexual Offences Act, 2012 – s.6 – Rape and murder of minorgirl – Trial Court found appellant-accused guilty – The Trial Court,by its order passed on the same day awarded death sentence to theappellant on two counts, i.e. u/s.302 of IPC and u/s.376-A of theBIPC; rigorous imprisonment for life under two counts, i.e.s.376(1)(2)(f), (i) and (m) of IPC and u/s. 6 of POCSO Act – Thedeath sentence was confirmed by the High Court – Before theSupreme Court, the appellant contended that the sentence of deathwas passed on the same day when the conviction order wasCpronounced, there was non-compliance of s.235(2) of the Code,the infraction on that count was sufficient to consider commutationof the sentence of death to that of life imprisonment – Held: Merelyon account of infraction of s.235(2) of the Code, the death sentenceought not to be commuted to life imprisonment – Adequate andsufficient opportunity afforded to the appellant to place all theDrelevant materials on record in the light of principle laid down inDagdu v. State of Maharashtra.

Penal Code, 1860 – s.376(1)(2) and s.376A – Criminal Law(Amendment) Ordinance, 2013 – Criminal Law (Amendment) Act,2013 – Rape and murder of minor girl – The Trial Court, by itsEorder awarded death sentence to the appellant on two counts, i.e.u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonmentfor life under two counts, i.e. u/s.376(1)(2)(f), (i) and (m) of IPCand u/s. 6 of POCSO Act – The Criminal Law (Amendment)Ordinance, 2013 (promulgated by the President of India onF03.02.2013), u/s.376(2) prescribed punishment as “shall be punishedwith rigorous imprisonment for term which shall not be less thanten years but which may extend to imprisonment for life” – Thesentence prescribed by s.376(2) as amended by the Amendment Act,has for the first time provided that the imprisonment for life “shallmean imprisonment for the remainder of that person’s natural life”G– Whether imposition of life sentence in the instant case for theoffence under u/s.376(2) could “mean imprisonment for theremainder of that person’s natural life” – Whether such ex-postfacto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution – Held: In the instant

SHATRUGHNA BABAN MESHRAM v.STATE OF MAHARASHTRA

case, the offence was committed on 11.02.2013 when the provisionsof the Ordinance were in force – However, the Amendment Act havingbeen given retrospective effect from 03.02.2013 – Since it was theOrdinance which was holding the field, going by the provisions ofthe Ordinance, Clauses (f), (h) and (l) of s.376(2) would getattracted – As far as consistency of ex-post facto prescription withArt.20(1) is concerned – An imposition of life sentence simpliciterdoes not put any restraints on the power of the executive to grantremission and commutation in exercise of its statutory power, subjectof course to s.433A of the Code – But, statutory prescription thatit “shall mean the remainder of that person’s life” will certainlyrestrain the executive from exercising any such statutory power andto that extent the concerned provision definitely prescribes higherpunishment ex-post facto – In the process, the protection affordedby Art.20(1) of the Constitution would stand negated – Therefore, itis must to declare that the punishment u/s.376(2) of the IPC in thepresent case cannot come with stipulation that the life imprisonment“shall mean the remainder of that person’s life”.

Penal Code, 1860 – s.299 and s.300 – Interplay between –discussed.

Words and Phrases – Theory of “Residual Doubt” –discussed.

Partly allowing the appeals, the Court

HELD: 1. The Trial Court found eight circumstancesestablishing guilt of the appellant-accused. According to theprosecution, on the day in question at about 7:30 p.m. when thevictim was with her grandfather, on the pretext that the father ofthe victim had asked the Appellant to bring the victim, theappellant, who was maternal uncle of the victim, took her away.This part of the evidence is conclusively established through thetestimony of PW2, the grandfather. This version finds mention inthe FIR which was recorded within few hours of the incident andin the statement of PW2 recorded under Section 164 of the Code.There is nothing on record to doubt the veracity of said version.It is true that some other witnesses were not examined by theprosecution but the strength of the testimony of PW2 does notget diminished on any count nor can it be said that his testimonyloses its weight because the witness was the grandfather of the

Avictim. The version coming through this witness is cogent,consistent and also figured in prompt reporting of the FIR. ThisCourt has, therefore, no hesitation in accepting that the firstcircumstance as noted by the Trial Court stands conclusivelyestablished. [Para 18.1][48-F-H; 49-A-B]

2. As deposed by PWs 1 and 2, the Appellant was found byBthe side of the victim at the spot i.e. in the premises of Anganwadi.The victim was having various injuries whereafter she was takenfor medical attention. Soon after the incident, the Appellant wasalso medically examined and Report Exbt. 46 showed injury onhis body. Even if PW9 had turned hostile and some otherCwitnesses were not examined, the fact that the victim was alwaysin the custody of Appellant till she was found at the spot alongsidethe Appellant is quite clear. The proximity in terms of time andthe promptitude in reporting are crucial factors and the evidencein that behalf is completely trustworthy. Thus, in view of thisCourt, the second and third circumstances are also fullyDestablished. [Para 18.2][49-C-D]

3. Soon after his arrest, the Appellant was produced formedical examination before PW 7-Dr., who found injury on privateparts of the Appellant. The approximate time of said injury asgiven in the opinion Exh. 46 is consistent with the case ofprosecution. No explanation, not even suggestion came fromEthe Appellant how there could be an injury on his body as noticedin Report Exh.46. Thus, the 4th circumstance also stands fullyestablished. [Para 18.3][49-E-F]

4. While considering the 5th circumstance, it must be statedthat as per record, the chappals were not proved to be that of theFAppellant and the pieces of flesh found at the spot of incidentwere also not proved to be that of human being. To that extent,5th circumstance was not proved at all. However, the fact thatthe pant of the victim was found at the spot of incident is wellestablished on record, and the 5th circumstance must be takento be proved only with respect to the recovery of the pant of theGvictim. [Para 18.4][49-G-H; 50-A]

5. There is nothing on record to show that the stains ofsemen found on clothing referred to in 6th circumstance, weremedically proved to be that of, or could be associated with theAppellant. The 6th circumstance cannot therefore be taken tobe pointing against the Appellant. [Para 18.5][50-B]H

SHATRUGHNA BABAN MESHRAM v.STATE OF MAHARASHTRA

6. In terms of Chemical Analyser’s Report Ext. 54, the bloodfound on the trousers of the Appellant was that of the victim.This fact is completely established. Given the quick successionof steps in investigation, including the medical examination andseizure of the clothes of the Appellant, this Court does not findany infirmity. This Court, therefore, accept that the 7thcircumstance stands fully established.[Para 18.6][50-B-C;50G]

7. It is matter of record that as per post-mortem reportand medical opinion, there was forceful sexual assault on thevictim and her death was caused due to injury No.17 which was inthe nature of multiple lacerations over vaginal and anal region;and merging of vaginal and anal orifices. The 8th circumstancemust therefore be taken to be proved fully except to the extentthat said circumstance makes reference to pieces of flesh foundat the spot of incident. [Para 18.7][50-H; 51-A-B]

8. Do the circumstances established on record satisfy therequirements spelt out in the decision of this Court in SharadDBirdhichand Sarda is the question for consideration.

The established circumstances show:-

(a)The victim was in the custody of the Appellant, fromthe time she was taken from her grandfather till shewas found lying in the premises of Anganwadi; whereEthe Appellant was also found lying next to her.

(b)The victim, who was hale and hearty when she wastaken by the Appellant, had number of injuries on herbody when she was found next to the Appellant.

(c)The injuries on the body of the victim show that sheFwas abused and sexually exploited.(d)The sexual assault was so forceful that the victim, atwo-and-a-half-year-old girl suffered, among otherinjuries, Injury No.17 i.e. Multiple lacerations overvaginal and anal region merging vaginal and analGorifice, margins irregular, blood infiltrated, reddish.

(e)Injury No.17, as described above, was so severe thatthere was merging of vaginal and anal orifices.

(f)The victim died because of Injury No. 17.

A(g)The Appellant had an injury on his private partscorresponding to the period when the victim was inhis custody.

(h)The Appellant was found to be capable of havingsexual intercourse.

B(I)The trousers of the Appellant had blood stains, theDNA profiles of which, matched with that of the bloodof the victim.

These circumstances at serial numbers (a) to (i) standproved beyond any doubt and by themselves constitute aconclusive and consistent chain excluding every other hypothesisCexcept the guilt of the appellant. [Para 19][51-B-H; 52-A]

9. The appellant is thus guilty of having committed offencespunishable under clauses (f), (i) and (m) of sub-section (2) ofSection 376 of IPC; and also, under clauses (j) and (m) of Section5 read with Section 6 of the POCSO Act, (as it stood before it wasDamended by Act 25 of 2019). Since according to medical opinion,the death was because of injury No. 17, the Appellant is also guiltyof having committed offence punishable under Section 376A ofIPC. [Para 22][52-F-G]

10. The injuries suffered by the victim were directly as aEresult of sexual assault inflicted upon her. But the medicalevidence does not disclose that either before or after thecommission of sexual assault, any other injury was consciouslycaused with the intention to extinguish the life of the victim. InjuryNo. 17 which was the cause of death was suffered by the victimduring the course of commission of sexual assault upon her. TheFquestions that arise, therefore, are whether such an act on partof the Appellant comes within the parameters of Sections 299and 300 of IPC and whether he is guilty of having committedculpable homicide amounting to murder. [Para 23][52-G-H; 53-A-B]11. Considering the age of the victim in the present case,Gthe accused must have known the consequence that his sexualassault on child of 2 ½ years would cause death or such bodilyinjury as was likely to cause her death. The instant matter thuscomes within the parameters of clause fourthly to Section 300IPC and the question posed at the beginning of the discussion onthis issue must be answered against the Appellant. The AppellantH

is therefore guilty of having committed the offence of culpablehomicide amounting to murder. [Para 28][66-D-F]

12. As far as the sentence is concerned, after consideringvarious decisions of this Court, the Court summed up: (a) it isnot as if imposition of death penalty is impermissible to be awardedin circumstantial evidence cases; and (b) if the circumstantialevidence is of an unimpeachable character in establishing theguilt of the accused and leads to an exceptional case or theevidence sufficiently convinces the judicial mind that the optionof sentence lesser than death penalty is foreclosed, the deathpenalty can be imposed. [Para 41][97-E-G]

13. If the present case is so considered, the discussion mustbroadly be classified under following two heads:-(A) Whether thecircumstantial evidence in the present case is of unimpeachablecharacter in establishing the guilt of the Appellant or leads to anexceptional case; (B) Whether the evidence on record is so strongand convincing that the option of sentence lesser than deathpenalty is foreclosed. [Para 53][126-G-H; 127-A-B]

14. Going by the circumstances proved on record and, moreparticularly the facets detailed earlier as well as the law laid downby this Court in series of decisions, the circumstances on recordrule out any hypothesis of innocence of the Appellant. Thecircumstances are clear, consistent and conclusive in nature andare of unimpeachable character in establishing the guilt of theAppellant. The evidence on record also depicts an exceptionalcase where two and half years old girl was subjected to sexualassault. The assault was accompanied by bites on the body of thevictim. The rape was of such intensity that there was merging ofvaginal and anal orifices of the victim. The age of the victim, thefact that the Appellant was maternal uncle of the victim and theintensity of the assault make the present case an exceptionalone. [Para 53][127-B-D]

15. However, if the case is considered against the secondhead, we do not find that the option of sentence lesser thandeath penalty is completely foreclosed. It is true that the sexualassault was very severe and the conduct of the Appellant couldbe termed as perverse and barbaric. However, definite pointerin favour of the Appellant is the fact that he did not consciouslycause any injury with the intent to extinguish the life of the victim.

AThough all the injuries are attributable to him and it was injuryNo.17 which was the cause of death, his conviction under Section302 IPC is not under any of the first three clauses of Section 300IPC. In matters where the conviction is recorded with the aid ofclause fourthly under Section 300 of IPC, it is very rare that thedeath sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24,B40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove,where the victims were below 16 years of age and had died duringthe course of sexual assault on them, the maximum sentenceawarded was life sentence. This aspect is of crucial importancewhile considering whether the option of sentence lesser thandeath penalty is foreclosed or not. [Para 53][127-D-G]

16. This Court, therefore, finds that though the Appellantis guilty of the offence punishable under Section 302 IPC, sincethere was no requisite intent as would bring the case under anyof the first three clauses of Section 300 IPC, the offence in thepresent case does not deserve death penalty. [Para 54][127-G-DH; 128A]

17. The second count on which death sentence has beenimposed is under Section 376A of IPC. As noted earlier, theoffence was committed on 11.02.2013 and just few days beforesuch commission, Section 376A was inserted in IPC by theOrdinance. As concluded by this Court, the ex-post facto effectEgiven to Section 376A inserted by the Amendment Act would notin any way be inconsistent with sub-Article (1) of Article 20 of theConstitution. The Appellant is thus definitely guilty of the offencepunishable under Section 376A IPC. But the question remainswhether punishment lesser than death sentence gets ruled outor not. As against Section 302 IPC while dealing with cases underFSection 376A IPC, wider spectrum is available for considerationby the Courts as to the punishment to be awarded. On the basisof the same aspects that weighed with this Court whileconsidering the appropriate punishment for the offence underSection 302 IPC, in view of the fact that Section 376A IPC wasbrought on the statute book just few days before the commissionGof the offence, the Appellant does not deserve death penalty forsaid offence. At the same time, considering the nature andenormity of the offence, it must be observed that the appropriatepunishment for the offence under Section 376A IPC must berigorous imprisonment for term of 25 years. [Para 55][128-A-E]H

SHATRUGHNA BABAN MESHRAM v.STATE OF MAHARASHTRA

Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88; State of AndhraPradesh v. Rayavarapu Punnayya and Another (1976)4 SCC 382 : [1977] 1 SCR 601; State of MadhyaPradesh v. Ram Prasad [1968] 2 SCR 522; SantoshS/o Shankar Pawar v. State of Maharashtra (2015) 7SCC 641 : [2015] 4 SCR 962; Suraj Jagannath Jadhavv. State of Maharashtra (2020) 2 SCC 693 : [2019]15 SCR 84; State of Orissa v. Dibakar Naik and Others(2002) 5 SCC 323 : [ 2002] 3 SCR 307; State, Govt ofNCT of Delhi v. Sunil and Another (2001) 1 SCC 652: [2000] 5 Suppl. SCR 144; Amrit Singh v. State ofPunjab (2006) 12 SCC 79: [2006] 8 Suppl. SCR 889;Dattatraya Ambo Rokade v. The State of Maharashtra(2019) 13 SCALE 187; Dagdu v. State of Maharashtra(1977) 3 SCC 68 : [1977] 3 SCR 636; B. A. Umesh vs.Registrar General, High Court of Karnataka (2017) 4SCC 124 : [2016] 5 SCR 438;Vasanta Sampat Duparev. State of Maharashtra (2017) 6 SCC 631 : [2017]3 SCR 850 ;Manoj Suryavanshi v. State ofChhattisgarh (2020) 4 SCC 451 ; Hanumant v. State ofMadhya Pradesh [1952] SCR 1091; Vadivelu Thevarv. State of Madras [1957] SCR 981; Jumman Khan v.State of U.P. and Another (1991) 1 SCC 752 :[1990]3 Suppl. SCR 398; Amrutlal Someshwar Joshi v. Stateof Maharashtra (1994) 6 SCC 186: [1994] 2 Suppl. SCR 510; Shivaji alias Dadya Shankar Alhat v. Stateof Maharashtra; (2008) 15 SCC 269:[2008]13 SCR 81; Vasanta Sampat Dupare v.State ofMaharashtra (2015) 1 SCC 253; Manoharan v. State(2019) 7 SCC 716; Aloke Nath Dutta v. State of WestBengal (2007) 12 SCC 230 :[2006] 10 Suppl. SCR 662; Swamy Shraddananda (2) v. State ofKarnataka (2008) 13 SCC 767:[ 2008] 11 SCR 93;Mohan and Ors. v. State of Tamil Nadu (1998) 5 SCC336:[1998] 3 SCR 317; Nand Kishore v. State ofMadhya Pradesh (2019) 16 SCC 278; State of Haryanav. Krishan and Another (2017) 8 SCC 204 : [2017]7 SCR 251; Md. Mannan v. State of Bihar (2019) 16

SCC 584 : [2019] 8 SCR 266; Dileep Bankar v.State of M.P. MANU/SC/1125/2019 ; RameshbhaiChandubhai Rathod v. State of Gujarat (2009) 5 SCC740; Dhananjoy Chatterjee v. State of W.B. (1994) 2SCC 220 : [1994] 1 SCR 37; Ashok Debabarma @Achak Debbarma v. State of Tripura (2014) 4 SCC747 : [2014] 4 SCR 287; Sudam v. State of Maharashtra(2019) 9 SCC 388 : [2019] 14 SCR 943; SantoshKumar Satishbhushan Bariyar v. State of Maharashtra(2009) 6 SCC 498 : [2009] 9 SCR 90; Kalu Khan v.State of Rajasthan (2015) 16 SCC 492; Ravishankaralias Baba Vishwakarma vs. State of Madhya Pradesh(2019) 9 SCC 689 : [2019] 14 SCR 285 – relied on.

Allauddin Mian v. State of Bihar (1989) 3 SCC 5 :[1989] 2 SCR 498 ; Malkiat Singh and others v. Stateof Punjab (1991) 4 SCC 341 : [1991] 2 SCR 256;Ajay Pandit v. State of Maharashtra (2012) 8 SCC 43: [2012] 10 SCR 70; Bishnu Prasad Sinha v. State ofAssam (2007) 11 SCC 467 :[ 2007] 1 SCR 916;Sebastian @ Chevithiyan v. State of Kerala (2010) 1SCC 58; Purna Chandra Kusal v. State of Orissa (2011)15 SCC 352; State of AP v. T. Prasanna Kumar (2003)1 ACR 627 (SC); Mohd. Chaman v. State (NCT of Delhi)(2001) 2 SCC 28; Ramesh Harijan v. State of UttarPradesh (2012) 5 SCC 777 : [2012] 6 SCR 688; RamDeo Prasad v. State of Bihar (2013) 7 SCC 725 : [2013]6 SCR 108; Ramesh v. State through Inspector of Police(2014) 9 SCC 392 : [2014] 7 SCR 956; Mohd. Arifalias Ashfaq v. Registrar, Supreme Court of India (2014)9 SCC 737:[2014] 11 SCR 1009; Santa Singh v. Stateof Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229;Kamta Tiwari v. State of M.P. (1996) 6 SCC 250 : [1996]5 Suppl. SCR 507; Molai and Another v. State of M.P.(1999) 9 SCC 581 : [1999] 4 Suppl. SCR 104; NeelKumar v. The State of Haryana (2012) 5 SCC 766 :[2012] 5 SCR 696; Sushil Sharma v. State (NCT ofDelhi) (2014) 4 SCC 317 : [2013] 16 SCR 616;Mahesh Dhanaji Shinde v. State of Maharashtra (2014)

SHATRUGHNA BABAN MESHRAM v.STATE OF MAHARASHTRA

4 SCC 292 : [2014] 3 SCR 406; Rajesh Kumar v. Statethrough Government of NCT of Delhi (2011) 13 SCC706; Mohinder Singh v. State of Punjab,(2013) 3 SCC294 : [2013] 3 SCR 90 ; Rameshbhai ChandubhaiRathod (2) v. State of Gujarat (2011) 2 SCC 764 : [2011]1 SCR 829; Amit v. State of U.P. (2012) 4 SCC 107 :[2012] 1 SCR 1009 Sunil v. State of M.P. (2017) 4 SCC393; Sunil Damodar Gaikwad v. State of Maharashtra(2014) 1 SCC 129 : [2013] 9 SCR 295; Surendra PalShivbalak Pal v. State of Gujarat (2005) 3 SCC 127: [2004] 4 Suppl. SCR 464 ; Mahesh Dhanaji Shindev. State of Maharashtra (2014) 4 SCC 292:[2014] 3SCR 406, Santosh Kumar Singh v. State of M.P. (2014)12 SCC 650 : [2014] 7 SCR 928; Shyam Singh @Bhima v. State of Madhya Pradesh (2017) 11 SCC 265;Mukesh and Another v. State ( NCT of Delhi) and Others(2017) 6 SCC 1 : [2017] 6 SCR 1 – referred to.

California v. Brown 93 L Ed 2d 934 : 479 US 538(1987); Franklin v. Lynaugh 101 L Ed 2d155 : 487 US164 (1988); Herrera v. Collins (1993) SCC Online USSC 10; Oregon v. Guzek 546 US 517 (2006); AbdulKabir v. Quarterman 550 US 233 (2007); State v.

McKinney 74 SW 3d 291 – referred to.

Case Law Reference

SHATRUGHNA BABAN MESHRAM v.STATE OF MAHARASHTRA

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 763-764 of 2016.

From the Judgment and Order dated 12.10.2015 of the High Courtof Judicature at Bombay, Nagpur Bench in Criminal Appeal No.321 of2015 and Criminal Confirmation Case No. 1 of 2015.

AMs. Sonia Mathur, Sr. Adv., Sushil Kumar Dubey, Anuj Aggarwal,Puneet Pathak, Himanshu Agarwal, Anshu Raj Singh, Balaji Srinivasan,Sushil Karanjkar, Rahul S. Chitnis, Nishant Ramakantrao Katneshwarkar,Advs. for the appearing parties.

The Judgment of the Court was delivered by

BUDAY UMESH LALIT, J.

1. These appeals by Special Leave challenge the common judgmentand order dated 12.10.2015 passed by the High Court[1] in Criminal AppealNo. 321 of 2015 and Criminal Confirmation Case No. 1 of 2015 affirmingthe judgment and order dated 14.08.2015 passed by the Trial Court[2] inCSpecial Case (POCSO Act[3]) No.11 of 2013 and confirming the DeathSentence awarded to the Appellant on two counts i.e. under Section 302of the Indian Penal Code (IPC, for short) and under Section 376A ofIPC.

2. The victim in the present case was girl of two and half yearsDof age and the First Information Report was lodged at 09.25 p.m. on11.02.2013 by her father with Parwa Police Station, Yavatmal as under:-

“By coming to the Police Station, I lodge an oral report that sinceone year I am residing with my family at Zatala. I have twodaughters and one son. The victim, aged 2 years is my daughterENo.-2. I reside in the neighbourhood of my father- in-law.

This day 11.02.13, as there was programme of Mahaprasad inDuttatraya Temple in the village I had gone there for taking mealsat about 7.00 p.m. After taking meals I returned home at about7.30 p.m. At that time I did not see my daughter Miss XXX[4] atFhome. Therefore, I asked my father-in-law as to where was mydaughter. On it, he told me, “Shatrughna Baban Meshram, aged21 years, resident of Zatala has taken away your daughter XXX[4]from me saying that he would reach her to you”. But Shatrughnadid not bring my daughter to me. So I searched my daughter inGthe village. I saw my daughter XXX[4] and Shatrughna Meshram

lying in the new, under construction, building of Anganwadi. There

was no pant on the person of my daughter. It was lying beside.

1 The High Court of Judicature at Bombay, Nagpur Bench, Nagpur.

2 The Additional Sessions Judge, Yavatmal

3 The Protection of Children from Sexual Offences Act, 2012.

H4 The identity of the victim is not being disclosed

Her face was bitten and private parts were swollen. I came outwith my daughter. In the meantime, Baban Sambhaji Meshram,aged 50 years also came there. He took Shatrughna to his house.I along with father-in-law and Vitthal Ghodam took my daughterin an auto from the village to Dr. Jaffar Siddiqui from Kurli. Thedoctor examined her and declared her dead. So we returned home.

Shatrughna Meshram took my daughter XXX[4] in the building ofAnganwadi, committed rape on her inhumanly in solitude, bit heron face and lips and committed her murder.”

3. As stated in the FIR, the victim was taken to PW6 Dr. Md.Jaffar Siddiqui for medical attention but she was already dead and therewere marks of bites on her body. After registration of crime, the inquest(Exh.15) was conducted which recorded, “– Black and bluish coloured(contusion) marks are visible on both the cheeks and an injury isvisible on the left cheek. Similarly, both the lips are bitten. An injurymeasuring 2 Cms. X 3 Cms. X 1 Cms. is visible on the chin”. It alsorecorded that there were bite marks on the chest and stomach of thevictim apart from signs of forcible sexual assault.

4. Soon after the registration of crime, PW13 A.P.I. Pankaj Vanjari(Police Station In-charge) caused arrest of the Appellant vide Exh.23and conducted spot panchnama. At the spot, full pant of the victim, piecesof flesh and chappals of an adult male were found.

5.The Appellant was taken to PW7 Dr. Ulhas Digambar Lingawarfor medical examination who found that:

“There was injury of abrasion on tip of the glans penis. The injurysize was 5mm X 3mm. That injury was caused within 24 hours.The accused was found capable for sexual intercourse.”

In response to queries by the Investigating Officer said witnesshad stated in his opinion Exh 46:-

“(1)Yes, sign of sexual intercourse within 24 Hrs., waspresent.

(2)Yes, injury mentioned in certificate can be possible, due tosexual intercourse.”

6. The Post Mortem on the body of the victim was conducted on12.02.2013 by Board of five medical professionals and the Report(Exh. 53) noted:-

18SUPREME COURT REPORTS

[2020] 13 S.C.R.

A“Evidence of perineal tear with merging of vaginal and anal orifice,details mentioned under column No.17 & 21. Dried blood and faecalstains over genital and perineal region.”

Following injuries were found on the person of the victim: -

“1.Multiple abrasions over right zygomatic region of sizesBranging from 0.5 cm x 0.5 cm. to 0.3 cm x 0.2 cm, reddish.2.Abrasion over left upper eye-lid of size 0.5 cm x 0.5 cm,reddish.

3.Abrasion over right cheek of size 4 cm x 4 cm, reddish.

4.Abrasion over left cheek of size 8.5 cm x 7 cm, reddish.

5.Evidence of missing both upper and lower lips exposinglabial fat with clean cut margins seen periorally withoutblood infiltration (post mortem in nature).

6.Lacerated wound over chin, midline of size 3 cm x 3 cmDmuscle deep with tissue missing, margins irregular and bloodinfiltrated, reddish.

7.Bite mark over and around right nipple over region of size5 cm x 5 cm, margins contused, reddish.

8.Bite mark over and around left nipple over region of size3 cm x 3 cm, margins contused, reddish.

9.Bite mark over abdomen, 1 cm right at the level of umbilicusover region of size 4 cm x 3.5 cm, margins contused,reddish.

F10.Bite mark over abdomen in the midline, 5 cm below theumbilicus, over region of size 3 cm x 3 cm, marginscontused, reddish.

11.Bite mark over public region in the midline, 9cm belowumbilicus, over region of size 4 cm x 3.5 cm, marginsGcontused, reddish.

12.Bite mark over lateral aspect of right shoulder, over regionof size 5 cm x 3 cm, margins contused, reddish.

13.Bite mark over right buttock, over region of size 3 cm x 3cm, margins contused, reddish.H

14.Bite mark over right buttock, over region of size 3 cm x 3Acm, margins contused, reddish, separated from injury No.13by 1.5 cm.

15.Bite mark over right buttock, over region of size 3 cm x2.5 cm, margins contused, reddish separated from injuryNo.14 by 1 cm.B

16.Bite mark over left buttock, over region of size 3.7 cm x3 cm, margins contused, reddish.

17.Multiple lacerations over vaginal and anal region mergingvaginal and anal orifice (perineal tear at 3, 6 and 9 O’clockCpositions), margins irregular, blood infiltrated, reddish.

18.Abrasion over left knee joint region, on anterior aspect, ofsize 1 cm x 0.5 cm, reddish.

Note: 1. Injuries No.1, 2, 3, 4 & 18 are caused by hard and roughsurface.

2. Injury No.5 is caused by sharp edged object.

3. Injury No.6 is caused by nibbling by teeth (nibbling bybite).

4. Injury No.7 to 16 are caused by human bite.

5. Injury No.17 is caused by forceful sexual assault.”

Under the heading “Internal Injuries” the correspondingobservations in Column No.21 were:-

“Evidence of tear in the posterior vaginal wall with merging ofvaginal and anal canal (perineal tear). Surface ragged, margins irregular,blood infiltrated and reddish, extending and tearing (perforating) therectum, corresponding to injury No.17 under column no.17.”

On the effect of the injuries and the cause of death, the Reportstated: -

“(a)Whether the ante-mortem

injuries found on the dead :Yesbody were sufficient in theordinary course of natureto cause death.

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[2020] 13 S.C.R.

A(b)If yes, which of the injurieswere individually sufficientin the ordinary course ofnature of cause death.

were individually sufficientInjury No.17 underin the ordinary course ofcolumn No.17 with itsnature of cause death.corresponding internal(c)Which of the injuriesinjuries mentionedcollectively are sufficient inunder column No.21Bthe ordinary course ofwith its consequences.nature to cause death.

Opinion as to the cause of death :

“Shock and haemorrhagefollowing perineal tearWith multiple injuries”.

C7. The clothes of the victim as well as that of the Appellant weresent for chemical analysis and the Report (Exh.69) was as under:-

“Description of Parcel/s

— Six sealed parcels, seals intact and as per copy sent.

DDescription of articles contained in Parcels

1.Jersey Wrapped in paper labelled – A1

2.Full Pant Wrapped in paper labelled – B1

3.Full Shirt Wrapped in paper labelled – B2

4.Knicker Wrapped in paper labelled – B3

5.Full Pant (Small) Wrapped in paper labelled – C1

6.Earth Wrapped in paper labelled – C2

RESULTS OF ANALYSIS.

—Exhibit No.1 has few blood stains ranging from 0.1 to 4 cmin diameter on upper portion.

—Exhibit 2 has moderate number of blood stains, ranging from0.1 to 2 cm in diameter mostly on front portion.

—GExhibit No.5 has moderate number of blood stains, rangingfrom 0.1 to 2 cm in diameter on middle and lower portion.

—No blood is detected on exhibits No.3,4 and 6.

—No semen is detected on exhibits No. 1, 2 3, 4 and 5.—Blood detected on exhibits No.1, 2 and 5 is human.”H

Exhibits 1 and 5 referred to in the Report were clothes of thevictim while Exhibits 2, 3 and 4 were that of the Appellant.

7.1 The relevant material including swabs taken from the bodyof the victim, the clothes and blood samples were subjected to D.N.A.analysis and the Report (Exh.54) stated:-

“Opinion: 1) The DNA profiles obtained from blood detected onex.1 Jersey of deceased, ex.2 Full pant of accused, ex.5 full pantof deceased in Bn-677/13, ex.2 Vaginal swab, ex.3 Vaginal smearslide, ex.4 Cervical swab, ex.5 Cervical smear slide, ex.6 Analswab, ex.7 Anal smear slide, ex.8 Skin and tissue, ex.12 Swabfrom bite site in Bn-678/13 are identical and from one and thesame source of female origin and matched with the maternal andpaternal alleles present in ex.9 Blood of deceased xxx in Bn-678/13.”

8. The Appellant was tried by the Trial Court in Special Case(POCSO Act) No.11 of 2013 for having committed offences punishableunder Sections 376(1)(2)(f)(m), 376A, 302 of IPC and under Section 6of the POCSO Act. The Prosecution examined 13 witnesses andproduced the relevant material in support of its case.

8.1 PW1, the father of the victim proved the First InformationReport and also stated about the examination of the victim by PW6 Dr.Md. Jafar. PW2, the grandfather of the victim narrated how the Appellanthad taken the victim along with him. It was stated:-

“He told me that father of the victim had come from work and hetold him to bring the victim. I told him that the victim’s father wasyet to come and told him not to take the victim with him. But hedid not listen me and took away the victim. Thereafter myself andmy wife went to the house of complainant and asked him whetherthe victim was brought to him by accused and he told me that thevictim was not brought to him. Therefore myself, complainantand Shrawan took search of the victim. We went towards watertank. One Vikas Masram on inquiry told that he saw the accusedwith the victim going towards Anganwadi. Therefore, we wenttowards Anganwadi. At that time the construction of Anganwadiwas incomplete and we saw that the victim and accused bothwere lying in the premises of Anganwadi. Jins pant of the victimwas lying aside and T Shirt was on her person. We saw that she

Ahad sustained bite wounds on her lips, chicks, chest and hips.There was bleeding from her private part.”

8.2 PW6 Dr. Md. Jaffar stated that when the victim was broughtbefore him, she was already dead and had found wounds and bites onher body. PW7 Dr. Ulhas Digambar Lingawar, deposed about medicalBexamination of the Appellant and opinion Exh.46.

8.3 PW10 Dr. Sachin Janbaji Gadge, Assistant Professor,Department of Forensic Medicine, Vasantrao Naik Government MedicalCollege,

Yavatmal proved the Post Mortem Report and stated about injuryCNo.5 as under: -

“7. Injury No.5 can be caused by sharp edged teeth. No fractureon external examination or palpation. All injuries are ante-mortem andfresh. Except, injury No.5 under column No.17 (post-mortem).”

DThe nature of injury No.17 and the steps taken after the postmortem were indicated thus:-

“12. Injury No.17 under column No.17 with its correspondinginternal injury mentioned under column No.21 with its consequencesis sufficient to cause death in ordinary course of nature.EAccordingly, the viscera was preserved. Vaginal, cervical and analswabs kept for semen analysis. Swabs from bite site and controlsite kept for detection of saliva and comparison. Blood soakedgauzed piece kept for D.N.A. Analysis and comparison. Skin andtissue kept for D.N.A. Analysis. Hairs kept for comparison, ifFany. Blood soaked gauzed piece kept for blood group. Nailclippings kept for detection of foreign blood group. Skin and tissueskept for histopathological examination.

13. Above mentioned material packed, sealed, labled and handedover to N.P.C. Ganesh, B.No.215 of P.S. Parwa. The receipt ofGP.C. Ganesh is on Ex.31 on the reverse of Ex.35. It bears signatureof Dr. R.R. Khetre on the top of Ex.35 with endorsement. I knowhis signature. The endorsement is at Ex.52.

14. My opinion as to cause of death is shock and haemorrhagefollowing perineal tear with multiple injuries. There was forceful

sexual assault on the child. The injury No.17 was caused byforceful insertion of penis. The post- mortem report bears mysignature along with signatures of Doctors as named above.Contents are correct. It is at Ex.53.”

In the cross-examination, the witness accepted that it was notmentioned in the Post Mortem Report that injury No.5 was caused bysharp edged teeth. The relevant part of the cross-examination was asunder:-

“It is true that the column no.17 note no.2 in respect of injury no.5it is not mentioned that the injury is caused by sharp edged teeth.Witness volunteers that we had sent the sample for D.N.A. test.It is true that I had not specifically opined in P.M. report thatinjury No.5 of column no.17 was caused by sharp edged teeth. Itis not true that the injury by teeth bite cannot produce clean cutmargin.”

Chandrakant Narayan Bijapwar, grocery shop owner wasexamined as PW9. He stated that at about 7.00 p.m. on 11.02.2013 theAccused had come to his shop and had purchased Parle Biscuits andLaxminarayan Chiwada but he could not remember who was with theAccused at that time. The witness was, therefore, declared hostile.

The Investigating Officer A.P.I. Pankaj Vanjari was examined asPW13 and deposed to the steps undertaken during investigation. Hedeposed:-

“On 20-2-2013 I had sent the letter to J.M.F.C. Ghatanji forrecording the statements u/s 164 of Cr.P.C. of the grandfatherand Vikas Masram. The letter bears my signature. It is at Exh.81.Accordingly I received Exh.17.”

Exhibit 17 is the statement of the grandfather of the victim underSection 164 of the Code[5]. However, the record is not clear whetherVikas Meshram was examined under Section 164, and, if not, the reasonfor such non-examination. In cross-examination of this witness, asuggestion made to him was replied as under:-

“P.W.1 had stated that people beat the accused by fist and kickblows. It is mentioned in his statement:”

5 The Code of Criminal Procedure, 1973

24SUPREME COURT REPORTS

AVikas Meshram was not examined in the trial as witness.Similarly, Baban Sambhaji Meshram, the father of the Appellant (referredto in the FIR); and Shrawan and Meshram (referred to in the depositionof PW2) were not examined as witnesses.

9. In the examination of the Appellant under Section 313 of theBCode, when the evidence of PW7 Dr. Ulhas Digambar Lingawar wasput to him, the Appellant stated that the evidence was false. Similar washis response, when the evidence that the blood of the victim was foundon his full pant, was put to him. His explanation to Question No.61 was:-

“Q.61 :Do you want to explain as to why prosecution witnessesCare deposing against you?

Ans. :When I had gone to the house of deceased girl, herparents had talk regarding the giving of human sacrificeof the deceased to find out the hidden treasure and afterDhearing it when I told them that if they do such act thenI will lodge the report against them but they had lodgedthe false report against me and deposed falsely.”

10. The Trial Court found that the following circumstancesestablished the guilt of the Appellant.

“(i)The first circumstance is that the accused took away thedeceased victim child from the lap of P.W.2, father- in-lawof the complainant i.e. victim’s father by saying that thefather of the deceased victim told him to bring the deceasedvictim to him.

(ii)The second circumstance is that the deceased victim childwas in the custody of the accused since the time he tookher away from P.W.2.

(iii)The third circumstance is that the deceased victim childGwas found lying isolated place where the construction ofAnganwadi building was in progress and the accused wasalso found lying on the same spot near the deceased victimchild.

(iv)The fourth circumstance is that as per report Exh. 44 issuedAby P.W.7 Dr. Lingawar, the injury of abrasion on tip of glanceof penis was found on examination of the accused and heopined that the sign of sexual intercourse within 24 hourswas present and it is due to sexual intercourse.

(v)The fifth circumstance is that the pant of deceased victimBchild, pair of chappal of accused, pieces of flesh were seizedfrom the spot of incident as per Exh.20.

(vi)The sixth circumstance is that the pant, shirt and knickerwith the stains of semen of the accused were seized as perseizure panchanama Exh.26.

(vii)The seventh circumstance is that as per C.A. report Exh.54 the blood present over the full pant of the accused wasfound to be of the deceased victim child and it shows theperfect matching with the blood of the deceased victim.

(viii) The eighth circumstance is that as per postmortem reportExh.53 and opinion of Dr. Gadge who had conductedautopsy on the dead body of victim child, the injury No.17was caused by forceful insertion of the penis as there wasforceful sexual assault on the deceased victim child andthe death of victim child was caused due to perineal tearand multiple injuries and the injuries were caused due tonibbling by teeth and bite marks were found over the partsof the body of deceased victim child. Even the pieces offlesh were also found on the spot of incident which showsthe brutality in commission of crime.”

10.1 Finding the Appellant guilty of the offences with which hewas charged, the Trial Court in its judgment dated 14.8.2015, stated:-

“40. After declaring the accused guilty for the offences punishableunder Section 376(1)(2)(f)(i)(m) of Indian Penal Code, underSection 376-A of Indian Penal Code, under Section 302 of IndianPenal Code, and under Section 6 of Protection of Children fromSexual Offences Act, I take pause to hear the accused on thepoint of sentence.”

10.2 Thereafter, on the same day, the Trial Court recorded:-

A“42. The learned Public Prosecutor has submitted that the deceasedvictim was helpless child aged two years and the accused is relatedto her. The accused had committed rape and murder after takingaway the victim child from her grandfather and as per the injuriesdescribed in P.M. report by P.W.10 Dr. Gadge, the accused hadcommitted inhuman act because the victim child had sustainedBinjury of perineal tear and injuries of bite marks and even the lipswere removed and as per the injury No.17 the injury of perinealtear was caused by forceful sexual assault on the deceased victimchild by the accused. Therefore, there are aggravatingcircumstances and the crime was well planned. It is furtherCsubmitted that there is no chance of reformation of the accused.The learned Public Prosecutor has further submitted that the casefalls under the category of ‘rarest of rare case’ for awardingdeath sentence. In support of his submission he has placed relianceon the observations made by the Hon’ble Apex Court in the caseof Vasanta Sampat Dupare vs. State of Maharashtra, reported inD2015 Cri. L.J. 774[6], in which the Hon’ble Apex Court has observedthat,

“The gullibility and vulnerability of the four years girl, who couldnot have nurtured any idea about the maladroitly designedbiological desires of this nature, went with the uncle whoEextinguished her life spark. The barbaric act of the appellantdoes not remotely show any concern for the precious life of ayoung minor child who had really not seen life. The criminalityof the conduct of the appellant is notonly depraved and debased,but can have menacing effect on the society”.

FIt is also held by the Hon’ble Apex Court in the cited rulingthat,

“A helpless and defenceless child gets raped and murderedbecause of the acquaintance of the appellant with the peopleof the society. This is not only betrayal of an individual trustGbut destruction and devastation of social trust. It is perversityin its enormity. It irrefragably invites the extreme abhorrenceand indignation of the collective. It is an anthema to the socialbalance. It meets the test of rarest of rare case and therefore,death sentence is affirmed.”

H6 2015 Cr. L.J. 774 : (2015) 1 SCC 253

43. The learned Public Prosecutor has further submitted that theprosecution case as per the ruling cited supra in which the deathsentence was awarded was also based on circumstantial evidenceand it was considered in the category of rarest of rare cases.

44. Having regard to the facts and circumstances and evidenceon record, I am inclined to accept the argument advanced by thelearned Public Prosecutor because in the facts of the ruling citedsupra [Wakkar and another vs. State of U.P.[7]] by the learneddefence counsel, there were two accused and it was not possibleto discern and arrive at any definite conclusion as to the role playedby each of the accused. Here in the present case there is onlyone accused who committed rape and murder of the helpless andinnocent child aged two years, therefore, ruling [Vasanta Duparevs. State of Maharashtra[6]] is applicable to the present case.

45. It is necessary to mention that brutality in committing rape onthe deceased victim child aged two years and taking away the lifeof deceased victim child is required to be taken into considerationfor coming to the conclusion that the case is rarest of rare onewarranting imposition of death sentence.

46. The deceased victim female child aged two years only wasinnocent and helpless child. Having regard to the facts andcircumstances of the crime and considering the relevant factors,sentence of life imprisonment appears to be inadequate punishmentand I am of the opinion that this is the case which falls in thecategory of rarest or rare cases warranting the imposition of deathsentence for the offence punishable under Section 376-A of IndianPenal Code and for offence punishable under Section 302 of IndianPenal Code.”

10.3 The Trial Court thus, by its order passed on the same dayawarded Death Sentence to the Appellant on two counts, i.e. underSection 302 of IPC and under Section 376-A of IPC; RigorousImprisonment for life under two counts, i.e. Section 376(1)(2)(f), (i) and(m) of IPC and under Section 6 of POCSO Act. The Death Sentencewas subject to confirmation by the High Court.

11. The matter concerning confirmation of Death Sentence andthe substantive appeal by the Appellant against his conviction were dealt

7 (2011) 3 SCC 306

ABC

Awith together and by its judgment and order presently under appeal, theconviction and sentence passed by the Trial Court were affirmed by theHigh Court. It was observed by the High Court:

“37. By applying yardstick set by the Apex Court in the case ofBachan Singh v. State of Punjab[8] and Machhi Singh and others v.BState of Punjab[9] (cited supra) and the observations of this Courtin the matter of Rakesh Kamble if the present matter is considered,in our opinion, in the guideline of aggravating circumstances, thereis mention of clause (b) which deal with the murder whichinvolves exceptional depravity. In the light of the clause, if thepresent matter is seen, the record reveals that the victim is childCof two and half years of age. The victim was subjected to forcefulsexual exploitation. The medical evidence shows that the death iscaused due to the forceful intercourse. In our opinion, the presentcase also covers clause (a) of “aggravating circumstances”wherein it is referred that if murder is committed after previousDplanning and involves extreme brutality. In the present matter, achild was taken from the custody of the grandfather and in spiteof his resistance, child was subjected to sexual violence andthen was done to death. In our opinion, the act of the appellant/accused falls in clauses (a) and (b) of the “aggravatingcircumstances”. We would also take into consideration theEmitigating circumstances referred to in the judgment of the ApexCourt in the case of Bachan Singh v. State of Punjab (cited supra).In our opinion, the only mitigating circumstance on which theappellant/accused seeks benefit of clause (2) i.e. the accused is ayoung boy. Even though the said mitigating circumstance of being

Fof young age is available to the appellant/accused while balancingthe aggravating and mitigating factors, we are of the opinion thatthe said mitigating circumstance would not be of any help to theappellant/accused.

G41. In the present case also, the accused is the maternal uncle ofthe victim child. The Apex Court recently in the matter of

8 (1980) 2 SCC 6849 (1983) 3 SCC 470

Purushottam Dashrath Borate and another v. State ofMaharashtra[10] (cited supra), wherein the victim deceased whowas serving in private company and was subjected to rape andmurder at the hands of the security guard and was awarded deathsentence on consideration of the submission that the appellant/accused is person of young age, observed that suchcompassionate grounds are present in most of the cases and arenot relevant for interference in awarding death sentence. TheApex Court further observed that the principle that when theoffence is gruesome and was committed in calculated anddiabolical manner, the age of the accused may not be relevantfactor.

“15. In our opinion, the measure of punishment in given casemust depend upon the atrocity of the crime; the conduct of thecriminal and the defenceless and unprotected state of the victim.Imposition of appropriate punishment is the manner in whichthe Courts respond to the society’s cry for justice against thecriminals.

Justice demands that Courts should impose punishment befittingthe crime so that the Courts reflect public abhorrence of the crime. TheCourts must not only keep in view the rights of the criminal but also therights of the victim of crime and the society at large while consideringimposition of appropriate punishment.”

The Apex Court also made it clear that lack of criminal antecedentsalso cannot be considered as mitigating circumstances, particularly takinginto consideration, the nature of heinous offence and cold and calculatedmanner in which it was committed by the accused persons.

42. The Apex Court in the matter of Vasanta Sampat Dupare v.State of Maharashtra[6] (cited supra), wherein the victim was girlof four years of age and the appellant/accused, neighbour luringthe victim for giving her chocolate, raped her and done her todeath by hit of stones. The Apex Court on the backdrop of themedical evidence, namely the victim was subjected to forcefulsexual intercourse, the deceased was last seen with the accusedand the immediate lodgement of report by the father of the girl,lending credence to the prosecution case, observed thus:

“60. In the case at hand, as we find, not only was the rapecommitted in brutal manner, but murder was also committedin barbaric manner. The rape of minor girl child is nothingbut monstrous burial of her dignity in the darkness. It is acrime against the holy body of girl child and the soul of societyand such crime is aggravated by the manner in which it hasbeen committed. The nature of the crime and the manner inwhich it has been committed speaks about its uncommonness.The crime speaks of depravity, degradation and uncommonality.It is diabolical and barbaric. The crime was committed in aninhuman manner. Indubitably, these go long way to establishthe aggravating circumstances.

61. We are absolutely conscious that mitigating circumstancesare to be taken into consideration. The learned Counsel for theappellant pointing out the mitigating circumstances would submitthat the appellant is in his mid-fifties and there is possibility ofhis reformation. Be it noted, the appellant was aged about fortyseven years at the time of commission of the crime. As isnoticeable, there has been no remorse on the part of appellant.There are cases when this Court has commuted the deathsentence to life finding that the accused has expressed remorseor the crime was not premeditated. But the obtaining factualmatrix when unfolded stage by stage would show thepremeditation, the proclivity and the rapacious desire. Thelearned Counsel would submit that the appellant had no criminalantecedents but we find that he was history- sheeter andhad number of cases pending against him. That alone maynot be sufficient. The appalling cruelty shown by him to theminor girl child is extremely shocking and it gets accentuated,when his age is taken into consideration. It was not committedunder any mental stress or emotional disturbance and it isdifficult to comprehend that he would not commit such actsand would be reformed or rehabilitated. As the circumstanceswould graphically depict, he would remain menace to society,for defenceless child has become his prey. In our consideredopinion, there are no mitigating circumstances.

62. As we perceive, this case deserves to fall in the categoryof the rarest of rare cases. It is inconceivable from the

perspective of the society that married man aged about twoscores and seven makes four years minor innocent girl childthe prey of his lust and deliberately causes her death. helplessand defenceless child gets raped and murdered because of theacquaintance of the appellant with the people of the society.This is not only betrayal of an individual trust but destructionand devastation of social trust. It is perversity in its enormity.It irrefragably invites the extreme abhorrence and indignationof the collective. It is an anathema to the social balance. In ourview, it meets the test of the rarest of the rare case and weunhesitatingly so hold.”

With this view, the High Court upheld the conviction and sentenceas recorded by the Trial Court and confirmed the Death Sentence.

12. As the Death Sentence and life imprisonment have beenawarded on two counts each, the statutory changes that the concernedprovisions of the IPC and POCSO Act have undergone may briefly beadverted to:-

A. Before 03.02.2013, the relevant portions of Sections 375, 376and 376A of IPC were as under:-

“375. Rape.–A man is said to commit “rape” who, except in thecase hereinafter excepted, has sexual intercourse with womanunder circumstances falling under any of the six folloingdescriptions:-

Firstly.Against her will.

Secondy.-Without her consent.

Thirdly.-…..

Fourthly.-

Fifthly.-

Sixthly.-With or without her consent, when she is under sixteen

years of age.

Explanation …..

“376. Punishment for rape-(1) Whoever, except in the casesprovided for by sub-section (2), commits rape shall be punishedwith imprisonment of either description for term which shall not

Abe less than seven years but which may for life or for termwhich may extend to ten years and shall also be liable to fineunless the woman raped is his own wife and is not under twelveyears of age, in which cases, he shall be punished withimprisonment of either description for term which may extendto two years or with fine or with both:B

Provided that the court may, for adequate and special reasons tobe mentioned in the judgement, impose sentence of imprisonment for aterm of less than seven years.

(2) Whoever,-

(f) commits rape on woman when she is under twelve yearsof age; or

Eshall be punished with rigorous imprisonment for term whichshall not be less than ten years but which may be for life and shall alsobe liable to fine:

Provided that the Court may, for adequate and special reasons tobe mentioned in the judgement, impose sentence of imprisonment ofFeither description for term of less than ten years.

Explanation 1.-…..

Explanation 2.-…..

Explanation 3.-…..

“376A. Intercourse by man with his wife during separation.-whoever has sexual intercourse with his own wife, who is livingseparately from him under decree of separation or under anycustom or usage without her consent shall be punished withimprisonment of either description for term which may extendHto two years and shall also be liable to fine”

B. On 03.02.2013, the Criminal Law (Amendment) Ordinance,2013 (No.3 of 2013), hereinafter referred to as the Ordinance waspromulgated by the President of India. Section 8 of the Ordinance interalia substituted Sections 375, 376 and 376A of IPC; the relevant text ofthe substituted provisions being:-

“375. person is said to commit “sexual assault” if that person-

(a) penetrates his penis, to any extent, into the vagina, mouth,urethra or anus of another person or makes the person to doso with him or any other person; or

(b) …..

(c) …..

(d) …..

(e) touches the vagina, penis, anus or breast of the person ormakes the person touch the vagina, penis, anus or breast ofthat person or any other person,

except where such penetration or touching is carried out for properhygienic or medical purposes under the circumstances falling underany of the following seven descriptions:-

First-Against the other person’s will. Secondly.- Without the otherperson’s consent. Thirdly.- …..

Fourthly.- …..

Fifthly.-…..

Sixthly.-With or without the other person’s consent, when suchother person is under eighteen years of age.

Seventhly.-…..

Explanation 1 .….

Explanation 2 …..

Explanation 3 ….. Exception. …..

376. (1) Whoever, except in the cases provided for by sub- section(2), commits sexual assault, shall be punished with rigorousimprisonment of either description for term which shall not be

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Aless than seven years but which may extend to imprisonment forlife, and shall also be liable to fine.

(2) whoever,-

(i) …..

(ii) …..

(iii) …..

(f)being relative, guardian or teacher of, or person in aDposition of trust or authority towards, the person assaulted,commits sexual assault on such person; or

(h)commits sexual assault on person when such person isunder eighteen years of age; or

(l)while committing sexual assault causes grievous bodily harmFor maims or disfigures or endangers the life of person; or

shall be punished with rigorous imprisonment for term whichshall not be less than ten years but which may extend toimprisonment for life, and shall also be liable to fine.

Explanation 1.- …..

Explanation 2.- …..

376A. Whoever, commits an offence punishable under sub- section(1) of sub-section (2) of section 376 and in the course of such

commission inflicts an injury which causes the death of the personor cause the person to be in persistent vegetative state, shall bepunished with rigorous imprisonment for term which shall notbe less than twenty years, but which may extend to imprisonmentfor life, which shall mean the remainder of that person’s naturallife, or with death.”

C) The Criminal Law (Amendment) Act, 2013 (No.13 of 2013),hereinafter referred to as the Amendment Act received the assent ofthe President and was published on 02.04.2013 but was given retrospectiveeffect from 03.02.2013. Section 9 of the Amendment Act inter aliasubstituted Sections 375, 376 and 376A of IPC as under:-

“375. man is said to commit “rape” if he-

(a)penetrates his penis, to any extent, into the vagina, mouth,urethra or anus of woman or makes her to do so with himor any other person; or

under the circumstances falling under any of the following sevendescriptions: -

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- …..Fourthly.-…..Fifthly. …..

Sixthly.-With or without her consent, when she is under eighteenyears of age.

Seventhly.- …..Explanation 1 ……Explanation 2 ……Exception 1……Exception 2…..

36SUPREME COURT REPORTS

[2020] 13 S.C.R.

A376. (1) Whoever, except in the cases provided for in sub- section(2), commits rape, shall be punished with rigorous imprisonmentof either description for term which shall not be less than sevenyears, but which may extend to imprisonment for life, and shallalso be liable to fine.

B(2) Whoever,-

(f)being relative, guardian or teacher of, or person in aposition of trust or authority towards the woman, commitsrape on such woman; or

(i)commits rape on woman when she is under sixteen yearsof age; or

(m)while committing rape causes grievous bodily harm or maimsor disfigures or endangers the life of woman; or

shall be punished with rigorous imprisonment for termwhich shall not be less than ten years, but which may extend toGimprisonment for life, which shall mean imprisonment for theremainder of that person’s natural life, and shall also be liable tofine.

Explanation.- …..

376A. Whoever, commits an offence punishable under sub- sectionH

(1) or sub-section (2) of section 376 and in the course of suchcommission inflicts an injury which causes the death of the womanor causes the woman to be in persistent vegetative state, shallbe punished with rigorous imprisonment for term which shallnot be less than twenty years, but which may extend toimprisonment for life, which shall mean imprisonment for theremainder of that person’s natural life, or with death.”

While repealing the Ordinance, Section 30 of the AmendmentAct states as under:-

“30. (1) The Criminal Law (Amendment) Ordinance, 2013 ishereby repealed.

(2) Notwithstanding such repeal, anything done or any action takenunder the Indian Penal Code, the Code of Criminal Procedure,1973 and the Indian Evidence Act, 1872, as amended by the saidOrdinance, shall be deemed to have been done or taken under thecorresponding provisions of those Acts, as amended by this Act.”

D.The Criminal Law (Amendment) Act, 2018 (Act 22 of 2018)which came into effect from 21.04.2018, deleted clause (i) of Section376(2) of IPC and added sub-section (3) after Section 376(2) as well asinserted Section 376AB as under:

(3)Whoever, commits rape on woman under sixteen years ofage shall be punished with rigorous imprisonment for term whichshall not be less than twenty years, but which may extend toimprisonment for life, which shall mean imprisonment for theremainder of that person’s natural life, and shall also be liable tofine:

“376AB- Punishment for rape on woman under twelve years ofage- Whoever, commits rape on woman under twelve years ofage shall be punished with rigorous imprisonment for term whichshall not be less than twenty years, but which may extend toimprisonment for life, which shall mean imprisonment for theremainder of that person’s natural life, and with fine or with death:

38SUPREME COURT REPORTS

ASince the offence in the instant case was committed well before21.04.2018, we are not called upon to consider the effect of Act 22 of2018 but the provisions are noted for the sake of completeness.

E. Sections 5 and 6 of the POCSO Act, at the time when theoffence was committed in the instant case, provided: -

“5: Aggravated penetrative sexual assault-

j)Whoever commits penetrative sexual assault on child,which-

(i) Physically incapacitates the child or causes the child tobecome mentally ill as defined under clause (b) ofsection 2 of the mental health Act, 1987 (14 of 1987) orcauses impairment of any kind so as to render the childunable to perform regular tasks, temporarily orFpermanently;

(ii) In the case of female child, makes the child pregnantas consequence of sexual assault;

(iii) Inflicts the child with Human Immunodeficiency Virusor any other life- threatening disease or infection whichGmay either temporarily or permanently impair the childby rendering him physically incapacitated, or mentallyill to perform regular tasks;

m)Whoever commits penetrative sexual assault on childAbelow twelve years; or

“6. Punishment for aggravated penetrative sexual assault. –Whoever, commits aggravated penetrative sexual assault, shallbe punished with rigorous imprisonment for term which shallnot be less than ten years but which may extend to imprisonmentfor life and shall also be liable to fine.”

By virtue of the Protection of Children from Sexual Offences(Amendment) Act, 2019 (Act 25 of 2019) which came into effect on16.08.2019, sub-Clause (iv) was inserted in Clause (j) of Section 5 asunder:-

“(iv) causes death of the child; or”

Further, Section 6 was substituted as under:-

“6. Punishment for aggravated penetrative sexual assault.-

(1) Whoever commits aggravated penetrative sexual assault shallbe punished with rigorous imprisonment for term which shallnot be less than twenty years, but which may extend toimprisonment for life, which shall mean imprisonment for theremainder of natural life of that person, and shall also be liable tofine, or with death.

(2) The fine imposed under sub-section (1) shall be just andreasonable and paid to the victim to meet the medical expensesand rehabilitation of such victim.”

[2020] 13 S.C.R.

A13. If the abovementioned provisions of IPC are considered inthree compartments, that is to say,

(A)The situation obtaining before 03.02.2013

(B)The situation in existence during 03.02.2013 to 02.04.2013and,

(C)The situation obtaining after 02.04.2013: following featuresemerge: -

(i)The offence under Section 375, as is clear from thedefinition of relevant provision in compartment (A),could be committed against woman. The situationwas sought to be changed and made gender neutralin compartment (B). However, the earlier positionnow stands restored as result of provisions incompartment (C)

(ii)Before 03.02.2013 the sentence for an offence underSection 376(1) could not be less than seven yearsbut the maximum sentence could be life imprisonment;and for an offence under Section 376(2) the minimumsentence could not be less than ten years while themaximum sentence could be imprisonment for life.Section 376A dealt with cases where mancommitted non-consensual sexual intercourse withhis wife in certain situations.

(iii)As result of the Ordinance, the sentences foroffences under Sections 376(1) and 376(2) wereretained in the same fashion. However, newprovision in the form of Section 376A wasincorporated under which, if while committing anoffence punishable under sub-section (1) or sub-section (2) of Section 376, person “inflicts aninjury which causes the death” of the victim, theaccused could be punished with rigorousimprisonment for term “which shall not be lessthan 20 years but which may extend toimprisonment for life, which shall mean theremainder of that person’s natural life or with

death”. Thus, for the first time, Death Sentencecould be imposed if fatal injury was caused duringthe commission of offence under sub- section (1) or(2) of Section 376.

(iv)Though the provisions of the Amendment Act restoredthe original non gender-neutral position vis-à-vis thevictim, it made certain changes in sub-section (2) ofSection 376. Now, the punishment for the offencecould be rigorous imprisonment for not less than tenyears which could extend to imprisonment for life,“which shall mean imprisonment for the remainderof that person’s natural life”. It was, thus,statutorily made clear that the imprisonment for lifewould mean till the last breath of that person’s naturallife.

(v)Similarly, by virtue of the Amendment Act, for theoffence under Section 376A, the punishment couldnot be less than 20 years which may extend toimprisonment for life which shall meanimprisonment for the remainder of that person’snatural life, or with death.

14. In the instant case, the offence was committed on 11.02.2013when the provisions of the Ordinance were in force. However, theAmendment Act having been given retrospective effect from 03.02.2013,the question arises whether imposition of life sentence for the offenceunder Section 376(2) could “mean imprisonment for the remainder ofthat person’s natural life”.

In the present case, since the victim was about two and half yearsof age at the time of incident and since it was the Ordinance which washolding the field, going by the provisions of the Ordinance, Clauses (f),(h) and (l) of Section 376(2) would get attracted. The comparableprovisions of Section 376(2) as amended by the Amendment Act wouldbe, Clauses (f), (i) and (m) respectively. As the substantive penalprovisions under the Clauses (f), (h) and (l) as inserted by the Ordinanceand Clauses (f), (i) and (m) as inserted by the Amendment Act areidentical, no difficulty on that count is presented. But the sentenceprescribed by Section 376(2) amended by the Amendment Act, has

Anow, for the first time provided that the imprisonment for life “shall meanimprisonment for the remainder of that person’s natural life”. Thisprovision comes with retrospective effect and in situation where suchprescription was not available on the statute when the offence wascommitted, the question arises whether such ex-post facto prescription

would be consistent with the provisions of sub-Article (1) of Article 20Bof the Constitution.

15. An imposition of life sentence simpliciter does not put anyrestraints on the power of the executive to grant remission andcommutation in exercise of its statutory power, subject of course to SectionC433A of the Code. But, statutory prescription that it “shall mean theremainder of that person’s life” will certainly restrain the executive fromexercising any such statutory power and to that extent the concernedprovision definitely prescribes higher punishment ex-post facto. In theprocess, the protection afforded by Article 20(1) of the Constitution wouldstand negated. We must, therefore, declare that the punishment underDSection 376(2) of the IPC in the present case cannot come withstipulation that the life imprisonment “shall mean the remainder of thatperson’s life”. Similar prescription in Section 6 of the POCSO Act, whichcame by way of amendment in 2019, would not be applicable and thegoverning provision for punishment for the offence under the POCSOEAct must be taken to be the pre-amendment position as noted hereinabove.

16. However, in so far as the situation covered by Section 376Aof IPC as amended by the Amendment Act is concerned, substantivelyidentical situation was dealt with by Section 376A as amended by theOrdinance and the prescription of sentence in Section 376A by theFAmendment Act is identical to that prescribed by Section 376A asamended by the Ordinance. Section 376A as amended by the Ordinancebeing gender neutral so far as victim was concerned, naturally coveredcases where victim was woman. Thus, the ex-post facto effectgiven to Section 376A by the Amendment Act from the day the Ordinancewas promulgated, would not in way be inconsistent with the provisionsGof sub-Article (1) of Article 20 of the Constitution.

17. Having considered the legal provisions involved in the matter,we now turn to the submissions advanced by the learned counsel.

17.1 Ms. Sonia Mathur, learned Senior Advocate for the Appellantsubmitted: -H

A) While noting eight circumstances against the Appellant, certaincircumstances were ignored by the Courts below, namely:-

(i) Both the lips of the victim showed clean cut margins indicatingthat the injuries were suffered by weapon and not by humanbite. Further, odontology report was not furnished to substantiatethe theory that the injuries could be by human bite and by theAppellant.

(ii) The vaginal, cervical, and anal swabs were sent for forensicexamination but none of these could be associated with theAppellant.

These important facets pointing towards innocence of theAppellant were completely disregarded.

B) Each of the circumstances found against the Appellant, wasthen dealt with as under :-

(i) PWs 1 and 2 were not independent witnesses to prove the firstcircumstance that the victim was taken away by the Appellant.There were discrepancies in the statements of PWs 1 and 2. Onthe other hand witnesses such as Shravan, Vitthal Ghodam andVikas Meshram were not examined at all. Even the wife of PW2whose presence was referred to in the statement of PW2 underSection 164 of the Code, was not examined.

(ii) The fact that the victim was always in the custody of theAppellant since the time she was taken away from PW2, was notproved. PW9 was examined to establish this circumstance butdid not support the prosecution. Moreover, Vikas Meshram whoallegedly saw the victim with the Appellant was also not examined.

(iii) The spot where the victim was found lying was not an isolatedplace but was in the middle of the village surrounded by houses.No independent witness was examined to corroborate the versionof PWs 1 and 2. Independent witnesses like Shravan, VitthalGhodam and Vikas Meshram were not examined. The initial notingin the form of GD entry 40/13 (which was referred to in the FIR)mentioned that the Appellant took away the victim to the jungleand killed her.

(iv) The Appellant was examined at the time of arrest but themedical evidence in that behalf was not placed on record.

[2020] 13 S.C.R.

AHowever, the prosecution chose to rely on the medical evidencethrough the opinion of PW7 Dr. Lingawar.

(v) The spot panchnama was done at 8:30 a.m. next day i.e. morethan eight hours after the arrest of the Appellant. The chappalsfound at the spot were not sent for any examination, nor was anyBevidence led to show that they belonged to the Appellant. Though,the pieces of flesh seized from the spot were sent for forensicexamination, there was nothing on record to show that the fleshwas of human being and of the victim.

(vi) The FSL report did not find any semen on any of the articlessent for examination and the finding rendered by the Courts belowin so far as 6th circumstance was thus erroneous.

(vii) There were discrepancies in the chain of custody of the clothesreferred to in the 7th circumstance. At the time of his arrest noblood was noticed on the clothes of the Appellant. PW13, theDInvestigating officer accepted that he “did not find any suspiciousthing” with the Appellant. Even when the Appellant was examinedby PW7 Dr. Ulhas Digambar Lingawar, no blood was detected.The seizure report also did not disclose any presence of bloodspots on the clothes of the Appellant. The trousers of the Appellantwere in police custody from 12.02.2013 till 14.02.2013 and noEmalkhana record or witnesses were produced.

It would, therefore, be highly unlikely that “moderate number ofblood stains ranging from 0.1 to 2 cm mostly on front portion”found in the FSL report could have been missed out at the earlierFstages. The evidence would therefore be unworthy of reliance.

Further, there was requisition for videography of the post mortemand yet no video-graphs were placed on record, in the absence ofwhich the material sent for DNA examination could not be reliedupon.

(viii) The record certainly indicated that the victim was sexuallyassaulted but the eighth circumstance did not by itself establishthat the Appellant was the author of crime.

C) The facts on record did not conclusively establish the guilt ofthe Appellant. Since the case was based on circumstantial evidence,H

going by the principles laid down by this Court, the case was notestablished at all.

17.2 While dealing with the question of sentence Ms. Mathur,learned Senior Advocate submitted: -

I)The sentence of death having been passed on the sameBday when the conviction order was pronounced, there wasnon-compliance of Section 235(2) of the Code and as laiddown by this Court in Allauddin Mian v. State of Bihar[11],Malkiat Singh and others v. State of Punjab[12]and AjayPandit v. State of Maharashtra[13], the infraction on thatcount was sufficient to consider commutation of theCsentence of death to that of life imprisonment.II)The instant case being based on circumstantial evidence,as held by this Court in Bishnu Prasad Sinha v. State ofAssam[[14]], Sebastian @ Chevithiyan v. State of Kerala[[15]],Purna Chandra Kusal v. State of Orissa[[16]]and Kalu KhanD

II)The instant case being based on circumstantial evidence,as held by this Court in Bishnu Prasad Sinha v. State ofAssam[[14]], Sebastian @ Chevithiyan v. State of Kerala[[15]],Purna Chandra Kusal v. State of Orissa[[16]]and Kalu Khanv. State of Rajasthan[17], no death sentence be awardedand the appropriate punishment could be life sentence.

III)Relying on the decisions of this Court in Ashok Debabarma@ Achak Debbarma v. State of Tripura[18], Sudam v. Stateof Maharashtra[19]and Ravishankar alias BabaVishwakarma vs. State of Madhya Pradesh[20], it wassubmitted that even if the circumstances on record weresufficient to record conviction against the Appellant, therewere gaps in the evidence and the benefit of “residual doubt”ought to be extended in favour of the Appellant.

IV)In terms of law laid down by this Court in Rajesh Kumarv. State through Government of NCT of Delhi[21], the

11 (1989) 3 SCC 5 para 1012 (1991) 4 SCC 341 para 1813 (2012) 8 SCC 43 para 47

14 (2007) 11 SCC 467 para 55

15 (2010) 1 SCC 58 para 17

16 (2011) 15 SCC 352 para 7

17 (2015) 16 SCC 492 paras 16, 23 and 31

18 (2014) 4 SCC 74719 (2019) 9 SCC 38820 (2019) 9 SCC 689

21 (2011) 13 SCC 706 paras 72 to 74

46SUPREME COURT REPORTS

Aburden was on the prosecution to rule out the possibility ofreformation of the Appellant and that as held in MohinderSingh v. State of Punjab[22], the exclusion of possibility ofreformation could only be on the basis of evidence led bythe prosecution.

BV)The Appellant completed Bachelors Preparatoryprogramme (BPP) from Indira Gandhi National OpenUniversity in 2017 while in prison and is presently pursuingBachelors Degree course in Arts.

VI)The Appellant was about 21 years of age at the time ofCincident and as held by this Court in Bachan Singh v. Stateof Punjab[8], Rameshbhai Chandubhai Rathod (2) v. Stateof Gujarat[23], Amit v. State of U.P.[24]and Sunil v. State ofM.P.[25], the young age of the Appellant at the time of incidentis factor in his favour.

DVII) The socio-economic condition of the Appellant showed thathe was labourer and belonged to Scheduled Tribes whichagain would be factor in his favour as held by this Courtin Sunil Damodar Gaikwad v. State of Maharashtra[26].

VIII) The family of the Appellant being in touch with the him,Ethere is strong probability of rehabilitation as observed bythis Court in Mohinder Singh v. State of Punjab[22].

IX)Further, as there were no criminal antecedents as has beenruled by this Court in Surendra Pal Shivbalak Pal v. Stateof Gujarat[27], Mahesh Dhanaji Shinde v. State ofFMaharashtra.[28], Santosh Kumar Singh v. State of M.P.[29]and Shyam Singh @ Bhima v. State of Madhya Pradesh[30],due weightage ought to be given in favour of the Appellant.

22 (2013) 3 SCC 294, paras 22, 2323 (2011) 2 SCC 764 paras 8 and 10G24 (2012) 4 SCC 107 para 2225 (2017) 4 SCC 393 para 1226 (2014) 1 SCC 129 para 2027 (2005) 3 SCC 127 para 1328 (2014) 4 SCC 292 paras 38 and 3929 (2014) 12 SCC 650 para 3030 (2017) 11 SCC 265 paras 6 and 8H

17.3 Mr. Sushil Karanjkar, learned Advocate for the Statesubmitted that all the aforesaid eight circumstances were individuallyestablished beyond any doubt and they collectively formed clear andconsistent chain ruling out every other hypothesis except the guilt of theAppellant. It was submitted that as held by this Court in B. A. Umeshvs. Registrar General, High Court of Karnataka[31] and subsequentcases, the mere fact that the death sentence was pronounced on thesame day when the conviction was recorded, by itself would not besufficient to commute the death sentence to life imprisonment; and thatthe Appellant had sufficient opportunity to advance submissions on theissue of sentence which opportunity was availed of. He also submittedthat the circumstances having been established beyond any shadow ofdoubt there was no room for any “residual doubt”. In his submission, thefactors that the crime in the instant case was gruesome and diabolical,where two and half year old girl was subjected to sexual assault andthe manner in which it was committed, were by themselves weighty andsufficient to tilt the balance against the Appellant and that as laid downby this Court in Vasanta Sampat Dupare v. State of Maharashtra6, inreview arising therefrom (in Vasanta Sampat Dupare v. State ofMaharashtra[32]), and in Mukesh and Another v. State ( NCT of Delhi)and Others[33], the extreme depravity and the barbaric manner in whichthe crime was committed would clearly outweigh any mitigatingcircumstance advanced on behalf of the Appellant.

18. We shall first consider the evidence on record to see whetherthe guilt of the Appellant is conclusively established on the strength ofthe material on record; and whether the circumstances on record form aclear and consistent chain to rule out every other hypothesis except theguilt of the Appellant. The law on the point is clear from the followingobservations of this Court in Sharad Birdhichand Sarda vs. State ofMaharashtra[34],

“153. close analysis of this decision would show that thefollowing conditions must be fulfilled before case against anaccused can be said to be fully established:

31 (2017) 4 SCC 124

32 (2017) 6 SCC 631

33 (2017) 6 SCC 1

34 (1984) 4 SCC 116

A(1)the circumstances from which the conclusion of guilt isto be drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinctionBbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra[35]where the observations were made:

“Certainly, it is primary principle that the accused must beand not merely may be guilty before court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2)the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesisexcept that the accused is guilty,

(3)the circumstances should be of conclusive nature andtendency,

(4)they should exclude every possible hypothesis exceptthe one to be proved, and

(5)there must be chain of evidence so complete as not toleave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused.”

FThese principles have since then been followed consistently.

18.1 According to the prosecution, on the day in question at about7:30 p.m. when the victim was with her grandfather, on the pretext thatthe father of the victim had asked the Appellant to bring the victim, theAppellant, who was maternal uncle of the victim, took her away. ThisGpart of the evidence is conclusively established through the testimony ofPW2, the grandfather. This version finds mention in the FIR which wasrecorded within few hours of the incident and in the statement of PW2recorded under Section 164 of the Code. There is nothing on record to

doubt the veracity of said version. It is true that some other witnesseswere not examined by the prosecution but the strength of the testimonyof PW2 does not get diminished on any count nor can it be said that histestimony loses its weight because the witness was the grandfather ofthe victim. The version coming through this witness is cogent, consistentand also figured in prompt reporting of the FIR. We have, therefore, nohesitation in accepting that the first circumstance as noted by the TrialCourt stands conclusively established.

18.2 As deposed by PWs 1 and 2, the Appellant was found by theside of the victim at the spot i.e. in the premises of Anganwadi. Thevictim was having various injuries whereafter she was taken for medicalattention. Soon after the incident, the Appellant was also medicallyexamined and Report Exbt. 46 showed injury on his body. Even if PW9had turned hostile and some other witnesses were not examined, thefact that the victim was always in the custody of Appellant till she wasfound at the spot alongside the Appellant is quite clear. The proximity interms of time and the promptitude in reporting are crucial factors andthe evidence in that behalf is completely trustworthy. Thus, in our view,the second and third circumstances are also fully established.

18.3 Soon after his arrest, the Appellant was produced for medicalexamination before PW 7 Dr. Ulhas Digambar Lingawar, who foundinjury on private parts of the Appellant. The approximate time of saidinjury as given in the opinion Exh.46 is consistent with the case ofprosecution. The submission however is that the Appellant was alsoexamined by another medical professional and that report was not placedon record. The reference to the medical examination of the Appellant interms of Section 53A of the Code was not to any other medicalprofessional but to PW 7 Dr. Lingawar. No explanation, not even asuggestion came from the Appellant how there could be an injury on hisbody as noticed in Report Exh.46. Thus, the 4th circumstance also standsfully established.

18.4 While considering the 5th circumstance, it must be statedthat as per record, the chappals were not proved to be that of theAppellant and the pieces of flesh found at the spot of incident were alsonot proved to be that of human being. To that extent, 5th circumstancewas not proved at all. However, the fact that the pant of the victim wasfound at the spot of incident is well established on record, and the 5th

Acircumstance must be taken to be proved only with respect to therecovery of the pant of the victim.

18.5 There is nothing on record to show that the stains of semenfound on clothing referred to in 6th circumstance, were medically provedto be that of, or could be associated with the Appellant. The 6thBcircumstance cannot therefore be taken to be pointing against theAppellant.

18.6 In terms of Chemical Analyser’s Report Ext.54, the bloodfound on the trousers of the Appellant was that of the victim. This fact iscompletely established. The submission however, is:-C

(a)Nothing suspicious was found by PW13 the InvestigatingOfficer with the Appellant at the time of his arrest; and

(b)PW7 Dr. Lingawar had not noticed any blood stains on thetrousers of the Appellant at the time of his medicalexamination;

(c)No malkhana report or evidence was produced on recordto state that the articles remained in proper custody and insealed condition.

The answer given by the Investigating Officer cannot be stretchedto say that there were no blood stains on his trousers at the time ofEarrest. The medical opinion was obtained to consider whether there wereany injuries on the private parts of the Appellant and whether he wascapable of having sexual intercourse. The facts on record show that thearticles were sent for FSL examination at the earliest.

The Appellant was represented by counsel of standing in theFTrial Court. The theory that the blood spots on the trousers of the Appellantwere subsequently planted was not even developed in the crossexamination of the concerned witnesses.

Given the quick succession of steps in investigation, including themedical examination and seizure of the clothes of the Appellant, we doGnot find any infirmity. We, therefore, accept that the 7th circumstancestands fully established.

18.7 It is matter of record that as per Post-Mortem report andmedical opinion, there was forceful sexual assault on the victim and her

death was caused due to injury No.17 which was in the nature of multiplelacerations over vaginal and anal region; and merging of vaginal andanal orifices.

The 8th circumstance must therefore be taken to be proved fullyexcept to the extent that said circumstance makes reference to piecesof flesh found at the spot of incident.

19. Do the circumstances established on record satisfy therequirements spelt out in the decision of this Court in SharadBirdhichand Sarda[34]is the next question for consideration.

The established circumstances show:-

a)The victim was in the custody of the Appellant, from thetime she was taken from her grandfather till she was foundlying in the premises of Anganwadi; where the Appellantwas also found lying next to her.

b)The victim, who was hale and hearty when she was takenby the Appellant, had number of injuries on her body whenshe was found next to the Appellant.

c)The injuries on the body of the victim show that she wasabused and sexually exploited.

d)The sexual assault was so forceful that the victim, two-and-a- half-year-old girl suffered, among other injuries,Injury No.17.

e)Injury No.17, as described above, was so severe that therewas merging of vaginal and anal orifices.

f)The victim died because of Injury No.17.

g)The Appellant had an injury on his private partscorresponding to the period when the victim was in hiscustody.

h)The Appellant was found to be capable of having sexualintercourse.

i)The trousers of the Appellant had blood stains, the DNAprofiles of which, matched with that of the blood of thevictim.

AThese circumstances at serial numbers a) to i) stand provedbeyond any doubt and by themselves constitute conclusive andconsistent chain excluding every other hypothesis except the guilt of theAppellant.

20. We must at this stage deal with the submission of Ms. Mathur,Blearned Senior Advocate about non-consideration of certaincircumstances by the Courts below.

It is true that the injuries on the lips of the victim showed that themargins were clean cut and given the nature of evidence in that behalf,it cannot be said with certainty that those injuries could be taken to beCthe result of human bites. But the other injuries on the body of the victimwere definitely by human bites and as such the absence of clarity withregard to the injuries on the lips does not render the case of the prosecutiondoubtful in any manner.

Again, the absence of association of vaginal, cervical and analDswabs with the Appellant does not in any way diminish the strength ofevidence against the Appellant.

21. The circumstances proved on record are not only conclusivein nature but completely support the case of the prosecution and areconsistent with only one hypothesis and that is the guilt of the Appellant.EThey form chain, so complete, consistent and clear, that no room fordoubt or ground arises pointing towards innocence of the Appellant. It is,therefore, established beyond any shadow of doubt that the Appellantcommitted the acts of rape and sexual assault upon the victim and thatinjury no.17 was the cause of death of the victim.

F22. The Appellant is thus guilty of having committed offencespunishable under clauses (f), (i) and (m) of sub-section (2) of Section376 of IPC; and also, under clauses (j) and (m) of Section 5 read withSection 6 of the POCSO Act, (as it stood before it was amended by Act25 of 2019). Since according to medical opinion, the death was becauseof injury No.17, the Appellant is also guilty of having committed offenceGpunishable under Section 376A of IPC.

23. The injuries suffered by the victim were directly as result ofsexual assault inflicted upon her. But the medical evidence does notdisclose that either before or after the commission of sexual assault, any

other injury was consciously caused with the intention to extinguish thelife of the victim. Injury No.17 which was the cause of death was sufferedby the victim during the course of commission of sexual assault uponher. The questions that arise, therefore, are whether such an act on partof the Appellant comes within the parameters of Sections 299 and 300of IPC and whether he is guilty of having committed culpable homicideamounting to murder.

24. According to clause fourthly under Section 300 of IPC, theoffence may come under the category of culpable homicide amountingto murder “if the person committing the act knows that it is so imminentlydangerous that it must, in all probability, cause death or such bodily injuryas is likely to cause death, and commits such act without any excuse forincurring the risk of causing death or such injury as aforesaid”.

The interplay between clauses of Sections 299 and 300 of theIPC was considered by this Court in State of Andhra Pradesh vs.

Rayavarapu Punnayya and Another[36]as under:-

“11. The principal question that falls to be considered in this appealis, whether the offence disclosed by the facts and circumstancesestablished by the prosecution against the respondent, is “murder”or “culpable homicide” not amounting to murder.

12. In the scheme of the Penal Code, “culpable homicide” is genusand “murder” its specie. All “murder” is “culpable homicide” butnot vice-versa. Speaking generally, “culpable homicide” sans“special characteristics of murder”, is “culpable homicide notamounting to murder”. For the purpose of fixing punishment,proportionate to the gravity of this generic offence, the Codepractically recognises three degrees of culpable homicide. Thefirst is, what may be called, “culpable homicide of the first degree”.

This is the greatest form of culpable homicide, which is defined inSection 300 as “murder”. The second may be termed as “culpablehomicide of the second degree”. This is punishable under the firstpart of Section 304. Then, there is “culpable homicide of the thirddegree”. This is the lowest type of culpable homicide and thepunishment provided for it is, also, the lowest among the

[2020] 13 S.C.R.

Apunishments provided for the three grades. Culpable homicide ofthis degree is punishable under the second part of Section 304.

13. The academic distinction between “murder” and “culpablehomicide not amounting to murder” has vexed the courts for morethan century. The confusion is caused, if courts losing sight ofBthe true scope and meaning of the terms used by the legislature inthese sections, allow themselves to be drawn into minutaeabstractions. The safest way of approach to the interpretationand application of these provisions seems to be to keep in focusthe keywords used in the various clauses of Sections 299 and300. The following comparative table will be helpful in appreciatingCthe points of distinction between the two offences.

14. Clause (b) of Section 299 corresponds with clauses (2) and(3) of Section 300. The distinguishing feature of the mens rearequisite under clause (2) is the knowledge possessed by theoffender regarding the particular victim being in such peculiarDcondition or state of health that the internal harm caused to him islikely to be fatal, notwithstanding the fact that such harm wouldnot in the ordinary way of nature be sufficient to cause death of aperson in normal health or condition. It is noteworthy that the“intention to cause death” is not an essential requirement of clauseE(2). Only the intention of causing the bodily injury coupled withthe offender’s knowledge of the likelihood of such injury causingthe death of the particular victim, is sufficient to bring the killingwithin the ambit of this clause. This aspect of clause (2) is borne

out by Illustration (b) appended to Section 300.

Section 300

Section 299

Subject to certain exceptionsculpable homicide is murder if theact by which the death is caused isdone —

person commits culpablehomicide if the act by which thedeath is caused is done —

INTENTION

(a) With the intention of causingdeath; or

(1) With the intention of causingdeath; or

(b) With the intention of causingsuch bodily injury as is likely tocause death; or

(2) With the intention of causingsuch bodily injury as the offenderknows to be likely to cause thedeath of the person to whom theharm is caused; or

(3) With the intention of causingbodily injury to any person and thebodily injury intended to be inflictedis sufficient in the ordinary courseof nature to cause death; or

KNOWLEDGE

(4) With the knowledge that the actis so imminently dangerous that itmust in all probability causedeath or such bodily injury as islikely to cause death, and withoutany excuse for incurring the risk ofcausing death or suchinjury as ismentioned above.

(c) With the knowledge that the actis likely to cause death

15. Clause (b) of Section 299 does not postulate any suchknowledge on the part of the offender. Instances of cases fallingunder clause (2) of Section 300 can be where the assailant causesdeath by fist blow intentionally given knowing that the victim issuffering from an enlarged liver, or enlarged spleen or diseasedheart and such blow is likely to cause death of that particularperson as result of the rupture of the liver, or spleen or thefailure of the heart, as the case may be. If the assailant had nosuch knowledge about the disease or special frailty of the victim,nor an intention to cause death or bodily injury sufficient in theordinary course of nature to cause death, the offence will not bemurder, even if the injury which caused the death, was intentionallygiven.

16. In clause (3) of Section 300, instead of the words “likely tocause death” occurring in the corresponding clause (b) of Section299, the words “sufficient in the ordinary course of nature” havebeen used. Obviously, the distinction lies between bodily injurylikely to cause death and bodily injury sufficient in the ordinary

course of nature to cause death. The distinction is fine but real,and, if overlooked, may result in miscarriage of justice. Thedifference between clause (b) of Section 299 and clause (3) ofSection 300 is one of the degree of probability of death resultingfrom the intended bodily injury. To put it more broadly, it is thedegree of probability of death which determines whether culpablehomicide is of the gravest, medium or the lowest degree. Theword “likely” in clause (b) of Section 299 conveys the sense of“probable” as distinguished from mere possibility. The words“bodily injury … sufficient in the ordinary course of nature tocause death” mean that death will be the “most probable” resultof the injury, having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that theoffender intended to cause death, so long as the death ensuesfrom the intentional bodily injury or injuries sufficient to causedeath in the ordinary course of nature. Rajwant v. State ofKerala[37]is an apt illustration of this point.

18. In Virsa Singh v. State of Punjab[38]Vivian Bose, J. speakingfor this Court, explained the meaning and scope of clause (3),thus (at p. 1500):

“The prosecution must prove the following facts before itcan bring case under Section 300, ‘thirdly’. First, it mustestablish quite objectively, that bodily injury is present;secondly the nature of the injury must be proved. Theseare purely objective investigations. It must be proved thatthere was an intention to inflict that particular injury, that isto say, that it was not accidental or unintentional or thatsome other kind of injury was intended. Once these threeelements are proved to be present, the enquiry proceedsfurther, and fourthly it must be proved that the injury of thetype just described made up of the three elements set outabove was sufficient to cause death in the ordinary courseof nature. This part of the enquiry is purely objective andinferential and has nothing to do with the intention of theoffender.”

37 AIR 1966 SC 1874

38 AIR 1958 SC 465

19. Thus according to the rule laid down in Virsa Singh case38of even if the intention of accused was limited to the infliction ofa bodily injury sufficient to cause death in the ordinary course ofnature, and did not extend to the intention of causing death, theoffence would be “murder”. Illustration (c) appended to Section300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section 300 bothrequire knowledge of the probability of the act causing death. It isnot necessary for the purpose of this case to dilate much on thedistinction between these corresponding clauses. It will be sufficientto say that clause (4) of Section 300 would be applicable wherethe knowledge of the offender as to the probability of death of aperson or persons in general — as distinguished from particularperson or persons — being caused from his imminently dangerousact, approximates to practical certainty. Such knowledge on thepart of the offender must be of the highest degree of probability,the act having been committed by the offender without any excusefor incurring the risk of causing death or such injury as aforesaid.

21. From the above conspectus, it emerges that whenever courtis confronted with the question whether the offence is “murder”or “culpable homicide not amounting to murder”, on the facts of acase, it will be convenient for it to approach the problem in threestages. The question to be considered at the first stage would be,whether the accused has done an act by doing which he has causedthe death of another. Proof of such causal connection betweenthe act of the accused and the death, leads to the second stagefor considering whether that act of the accused amounts to“culpable homicide” as defined in Section 299. If the answer tothis question is prima facie found in the affirmative, the stage forconsidering the operation of Section 300 of the Penal Code, isreached. This is the stage at which the court should determinewhether the facts proved by the prosecution bring the case withinthe ambit of any of the four clauses of the definition of “murder”contained in Section 300. If the answer to this question is in thenegative the offence would be “culpable homicide not amountingto murder”, punishable under the first or the second part ofSection 304, depending, respectively, on whether the second or

Athe third clause of Section 299 is applicable. If this question isfound in the positive, but the case comes within any of theexceptions enumerated in Section 300, the offence would still be“culpable homicide not amounting to murder”, punishable underthe first part of Section 304, of the Penal Code.

B22. The above are only broad guidelines and not cast-ironimperatives. In most cases, their observance will facilitate thetask of the court. But sometimes the facts are so intertwined andthe second and the third stages so telescoped into each other, thatit may not be convenient to give separate treatment to the mattersinvolved in the second and third stages.”C25. We may now consider the cases where the death may nothave been intended but clause fourthly of Section 300 of IPC was appliedto hold the accused guilty of offence of culpable homicide amounting tomurder.

DA) In State of Madhya Pradesh vs. Ram Prasad[39], womanwas set afire by the accused after pouring kerosene oil on her. benchof three Judges of this Court dealt with the matter as under:-

“The question then arises, what was the offence which RamPrasad can be said to have committed? The offence of causingEinjury by burning is broad spectrum which runs from s. 324causing simple injury by burning through s. 326 namely, causinggrievous injury by burning to the two major offences, namely,culpable homicide not amounting to murder and even murder itself.The Sessions Judge chose the lowest end of the spectrum whichis surprising enough, because the burns were so extensive thatFthey were certainly grievous by all account. The High Court placedthe offence little higher, namely, culpable homicide not amountingto murder. We think that the matter goes little further than this.As death has been caused the question has to be considered inthe light of homicide to determine whether the action of RamGPrasad falls within culpable homicide not amounting to murder orthe higher offence of murder itself.

Here we see that death has actually been caused by the criminalact; in other words, there has been homicide and since it is not

accidental or suicidal death, responsibility for the homicide, in theabsence of any exceptions or extenuating circumstances, mustbe borne by the person who caused it. The High Court hasapparently stopped short by holding that this was case of culpablehomicide not amounting to murder. The question is whether theoffence falls in any of the clauses of s. 300 Indian Penal Code. Inthis connection it is difficult to say that Ram Prasad intended causingthe death of Mst. Rajji although it might well be the truth. That heset fire to her clothes after pouring kerosene oil is patent factand therefore the matter has to be viewed not only with regard tothe firstly of s. 300, but all the other clauses also. We do not wishto consider the second and the third clauses, because the questionthen would arise what was the extent of the injury which RamPrasad intended to cause or knew would be caused to Mst. Rajji.That would be matter of speculation. In our opinion, this mattercan be disposed of with reference to clause fourthly of s. 300.That clause reads as follows :-

“. . . . .culpable homicide is murder. if the person committingthe act knows that is so imminently dangerous that it must inall probability, cause death or such bodily injury as is likely tocause death, and commits such act without any excuse forincurring the risk or causing death or such injury as aforesaid.”

It is obvious that there was no excuse for Ram Prasad to havetaken the risk of causing the death or such bodily injury as waslikely to cause death. The question therefore arises whether RamPrasad knew that his act was so imminently dangerous that itmust in all probability cause death or such bodily injury as is likelyto cause death, so as to bring the matter within the clause. Althoughclausefourthly is usually invoked in those cases where there isno intention to cause the death of any particular person (as theillustration shows) the clause may on its terms be used inthosecases where there is such callousness towards the result and therisk taken is such that it may be stated that the person knows thatthe act is likely to cause death or such bodily injury as is likely tocause death.In the present case, Ram Prasad poured keroseneupon the clothes of Mst. Rajji and set fire to those clothes. It isobvious that such fire spreads rapidly and burns extensively. Nospecial knowledge is needed to know that one may cause death

Aby burning if he sets fire to the clothes of person. Therefore, itis obvious that Ram Prasad must have known that he was runningthe risk of causing the death of Rajji or such bodily injury as waslikely to cause her death. As he had no excuse for incurring thatrisk, the offence must be taken to fall within fourthly of s. 300,Indian Penal Code. In other words, his offence was culpableBhomicide amounting to murder even if he did not intend causingthe death of Mst. Rajji. He committed an act so imminentlydangerous that it was in all probability likely to cause death or toresult in an injury that was likely to cause death. We are accordinglyof the opinion that the High Court and the Sessions Judge wereCboth wrong in holding that the offence did not fall within murder.”

(Emphasis supplied)

B) In similar fact situation, another bench of three Judges ofthis Court, in Santosh S/o Shankar Pawar vs. State of Maharashtra40observed,D

“13. Even assuming that the accused had no intention to causethe death of the deceased, the act of the accused falls underclause Fourthly of Section 300 IPC that is the act of causing injuryso imminently dangerous where it will in all probability cause death.Any person of average intelligence would have the knowledgeEthat pouring of kerosene and setting her on fire by throwing alighted matchstick is so imminently dangerous that in all probabilitysuch an act would cause injuries causing death.”

C) The principle in Santosh[40]was adopted in Suraj JagannathJadhav vs. State of Maharashtra[41].F

D) In State of Haryana vs. Krishan and Another[42], where 36persons had died after consuming spurious liquor, this Court set asidethe acquittal ordered by the High Court and restored the order ofconviction under Section 302 IPC passed by the trial Court. It wasobserved:-G“

“33. Insofar as argument predicated on Section 120-B IPC isconcerned, even if we proceed on the basis that charge of

40 (2015) 7 SCC 641

41 (2020) 2 SCC 69342 (2017) 8 SCC 204H

conspiracy is not proved, it would be suffice to observe thatadequate evidence is produced showing the culpability of therespondents, individually. Once it is shown that the spurious liquorwas sold from the local vends belonging to the respondents coupledwith the fact that after this tragedy struck, the respondents eventried to destroy remaining bottles clearly establishes that therespondents had full knowledge of the fact that the bottles containsubstance methyl and also had full knowledge about the disastrousconsequences thereof which would bring their case within thefour corners of Section 300 Fourthly. The respondents cannot betreated as mere cat’s paw and naive. They have exploited theresilient nature of bucolic and rustic villagers.”

26. We may now consider some of the decisions of this Court inwhich deaths had occurred because of injuries sustained by the victimsduring sexual assault on them.

26.1 In State of Orissa vs. Dibakar Naik and Others[43], benchof two Judges of this Court dealt with case where lady of 23 years ofage was gang raped and lost her life. The concerned accused wereconvicted inter alia under Sections 376 and 302 read with Section 34 ofIPC by the trial Court. However, their conviction and sentence were setaside by the High Court. The appeals preferred by the State were partlyallowed and while convicting four accused under Sections 376 and 304II IPC, it was observed by this Court:-

“23. However, the nature of the injuries inflicted upon the personof the deceased indicate that the accused persons had not intendedto cause her death. Dr Indramani Jena (PW 21) who conductedthe post-mortem over the dead body of Chhabirani had found thefollowing injuries:

“(1)One swelling 1” diameter irregularly circular over rightmastoid process.

(2)One swelling (which was black in colour) on the upperhalf of right breast 2" in diameter irregular circular.G

(3)On dissection I found the following:

The swelling in right mastoid area had underlyinghaematoma. There was fracture of right fourth rib under

Injury 2. Right-side chest was filled with blood of aboutone litre. The right lung was displaced and was injuredin anterior surface by fractured rib. Heart chamber wasempty, that is, there was no blood.

(4)Stomach was empty.

(5)There were two ecchymosis of ¼” in diameter each onposterior vaginal wall. The injuries were in 5 o’clockand 7 o’clock positions.

(6)On examination of the vaginal smear I found deadspermatozoa and epithelial cells.

(7)By the time of my examination, there was process ofdecomposition. Skin denudation had started. Tongue wasprotruded and bitten. There was bleeding from rightangle of mouth and both ears. Abdomen was protrudeddue to foul gases. Death was within 48 hours of thePM examination.”

He has opined that all injuries were ante-mortem. Death was dueto injuries causing internal haemorrhage. There were signs offorcible sexual intercourse. It was case of violent type ofintercourse. The injuries found were not in normal course of sexualintercourse. Any violent assault even without rape could causeInjuries 1 and 2 and the corresponding internal injuries. Injury 2with corresponding internal injury was sufficient to cause the death.

24. Whoever causes death by doing an act with the intention ofcausing death or with the intention of causing such bodily injuryas is likely to cause death or with the knowledge that he is likely,by such act, to cause death, is responsible for the commission ofthe offence of culpable homicide. Culpable homicide is murder ifthe act by which the death is caused is done with the intention ofcausing death and is not covered by any of the exceptions ofSection 300 of the Indian Penal Code. As already noticed, in thiscase there is no evidence to show that the aforesaid accusedpersons proved to have been involved in the occurrence, hadintended to cause the offence of murder within the meaning ofSection 300 as punishable under Section 302 of the Indian PenalCode. However, on proof of the commission of offence of gang

rape found to have been committed in violent manner, they areassumed to be having the knowledge that by their action it waslikely that the deceased would have died.The aforesaid accusedare, therefore, guilty of the offence, punishable under Part II ofSection 304 of the Indian Penal Code. While acquitting the otherrespondents we hold Birabar Mania (A-5), Babaji Mania (A-6),Bhira Behera @ Baba Tanti (A-7) and Madha Tanti @Madhabananda Parmanik (A-11) guilty for the commission ofoffences punishable under Section 304 Part II read with Section34 of the Indian Penal Code besides the commission of offencepunishable under Section 376 read with Section 34 of the IndianPenal Code. The conviction and sentence awarded by the trialcourt to Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera@ Baba Tanti (A- 7) and Madha Tanti @ MadhabanandaParmanik (A-11) under Section 376 of the Indian Penal Code isupheld. On proof of the offence punishable under Section 304Part II read with Section 34 IPC, the aforesaid accused personsare sentenced to undergo rigorous imprisonment for 10 years.Both the sentences shall run concurrently”.

(Emphasis supplied)

Though it was found that the offence of gang rape was committedin violent manner and that the offenders must be having the knowledgethat it was likely that by their action the victim would die, the accusedwere not convicted of the offence of culpable homicide amounting tomurder.

26.2 Similarly, in State, Govt of NCT of Delhi vs. Sunil andAnother[44], girl of 4 years of age was raped by two accused and shelost her life as result of injuries sustained during sexual assault. Abench of two Judges of this Court observed:-

“23. Thus on consideration of the entire evidence in this case wehave no doubt that the trial court had come to the correct conclusionthat the two respondents were the rapists who subjected Anuradhato such savage ravishment. The Division Bench of the High Courthas grossly erred in interfering with such correct conclusionmade by the trial court as the reasons adopted by the High Courtfor such interference are very tenuous. Nonetheless, it is difficult

Ato enter upon finding that the respondents are equally guilty ofmurder of Anuradha. In the opinion of PW 1 doctor the child died“due to intracranial damage consequent upon surface force impactto the head”. The said opinion was made with reference to thesubdural haematoma which resulted in subarachnoid haemorrhage.Such consequence happened during the course of the violentBravishment committed by either both or by one of the rapists withoutpossibly having any intention or even knowledge that their actionwould produce any such injury. Even so, the rapists cannot disclaimknowledge that the acts done by them on little infant of such atender age were likely to cause its death. Hence they cannotCescape conviction from the offence of culpable homicide notamounting to murder.

24. In the result, we set aside the impugned judgment of the HighCourt. We restore the conviction passed by the trial court underSections 376 and 377 read with Section 34 IPC. The trial courtDawarded the maximum sentence to the respondents under thesaid counts i.e. imprisonment for life. The fact-situation in thiscase does not justify any reduction of that sentence. We alsoconvict the respondents under Section 304 Part II, read withSection 34 IPC though it is unnecessary to award any sentencethereunder in view of the sentence of imprisonment for lifeEawarded to the respondents under the other two counts.”

26.3 In Amrit Singh vs. State of Punjab[45], girl of 7-8 years diedas result of excessive bleeding from her private parts because of sexualassault on her. The accused was found guilty of offences under Sections302 and 376 and was awarded death sentence. bench of two JudgesFof this Court observed:-

“21. The opinion of the learned trial Judge as also the High Courtthat the appellant being aged about 31 years and not sufferingfrom any disease, was in dominating position and might havegot her mouth gagged cannot be held to be irrelevant. Some marksGof violence not only on the neck but also on her mouth were found.Submission of Mr Agarwal, however, that the appellant might nothave an intention to kill the deceased, thus, may have some force.The death occurred not as result of strangulation but because ofexcessive bleeding. The deceased had bleed half litre of blood.

Dr. Reshamchand Singh, PW 1 did not state that injury on theneck could have contributed to her death. The death occurred,therefore, as consequence of and not because of any specificovert act on the part of the appellant.”

This Court commuted the sentence to life imprisonment.

26.4 bench of two Judges of this Court relied upon the decisionin State of Orissa v. Dibakar Naik[43]and affirmed the conviction andsentence under Sections 376 and 304 II IPC in State of AP v. T.Prasanna Kumar[46].

26.5 On the other hand, in following four cases, two Judge benchesof this Court affirmed the conviction and sentence under Sections 302and 376 IPC where the victims, aged between 1½ to 8 years had losttheir lives as result of injuries sustained during sexual assault on them.

i)Mohd. Chaman vs. State (NCT of Delhi)[47]

Age of the Victim : 1½ years

ii)Ramesh Harijan vs. State of Uttar Pradesh[48]

Age of the Victim : 5-6 years

iii)Ram Deo Prasad vs. State of Bihar[49]

Age of the Victim : 4 years

iv)Ramesh vs. State through Inspector of Police[50]

Age of the Victim : 8 years

However, there is no discussion on the point in these cases.

26.6 Recently, three Judge bench of this Court in DattatrayaAmbo Rokade vs. The State of Maharashtra[51]had an occasion toconsider where girl of 5 years was subjected to sexual assault. Shedied as result of injuries 1 to 5 suffered during the course of sexualassault on her. The conviction of the accused inter alia under Sections

46 (2003) 1 ACR 627 (SC) = JT 2002 (7) SC 63547 (2001) 2 SCC 2848 (2012) 5 SCC 777

49 (2013) 7 SCC 72550 (2014) 9 SCC 39251 (2019) 13 SCALE 187

A302, 376(2)(f) of IPC and under the provisions of POCSO Act wasaffirmed by this Court and it was observed:-

“125. As mature man, over fifty years of age, the Accused-Appellant should have known that the rape of five year oldchild by an adult was dangerous and could lead to such injuries,Bas was in all probability likely to cause death.”

27. The guiding principles were summed up in State of MadhyaPradesh v. Ram Prasad[39]to the effect that even if there be no intentionto cause death, “if there is such callousness towards the result and therisk taken is such that it may be stated that the person knows that the actCis likely to cause death or such bodily injury as is likely to cause death”clause fourthly of Section 300 IPC will get attracted and that the offendermust be taken to have known that he was running the risk of causing thedeath or such bodily injury as was likely to cause the death of the victim.Same principle is discernible from the decision of this Court in DattatrayaDAmbo Rokade v. State of Maharashtra[51].

28. Considering the age of the victim in the present case, theaccused must have known the consequence that his sexual assault on achild of 2 ½ years would cause death or such bodily injury as was likelyto cause her death. The instant matter thus comes within the parametersof clause fourthly to Section 300 IPC and the question posed at theEbeginning of the discussion on this issue must be answered against theAppellant. The Appellant is therefore guilty of having committed theoffence of culpable homicide amounting to murder.

29. It must be observed at this stage that the decisions of thisCourt referred to in paragraphs 26.1, 26.2 and 26.4 hereinabove failedFto consider the effect of clause fourthly to Section 300 IPC.

30. Before we turn to the submissions on sentence advanced byMs. Mathur, learned Senior Advocate, it needs to be noted that about 67cases were dealt with by this Court in last 40 years since the decision ofthis Court in Bachan Singh[8], where i) the alleged offences were underGSections 376 and 302 IPC; and ii) the ages of the victims were 16 yearsor below. The Cases are:-

67ABCDEFGH

ABCDEFGH

[2020] 13 S.C.R.

69ABCDEFGH

70SUPREME COURT REPORTS[2020] 13 S.C.R.ABCDEFGH

ABCDEFGH

72SUPREME COURT REPORTS[2020] 13 S.C.R.ABCDEFGH

Out of these 67 cases, this Court affirmed the award of deathsentence to the accused in 15 cases. In three (at Sr. Nos. 26A, 33A and41A) out of said 15 cases, the death sentence was commuted to lifesentence by this Court in Review Petitions. Out of remaining 12 cases,in two cases (where Review Petitions were heard in open Court in termsof law laid down in Mohd. Arif alias Ashfaq vs. Registrar, SupremeCourt of India[52]) namely in cases at Sr. Nos. 51A and 65A, the deathsentence was confirmed by this Court and the Review Petitions weredismissed. Thus, as on date, the death sentence stands confirmed in 12out of 67 cases where the principal offences allegedly committed wereunder Sections 376 and 302 IPC and where the victims were aged about16 years or below.

Out of these 67 cases, at least in 51 cases the victims were agedbelow 12 years. In 12 out of those 51 cases, the death sentence wasinitially awarded. However, in 3 cases (at Sr. Nos. 26A, 33A and 41A)the death sentence was commuted to life sentence in Review.

52 (2014) 9 SCC 737

73ABCDEF

AIn 2 out of aforesaid 67 cases (at Sr. Nos. 58 and 67), the offenceswere committed on 23.02.2015 and 22.05.2015 respectively i.e., afterthe Amendment Act received the assent of the President and waspublished on 02.04.2013 (but given retrospective effect from 03.02.2013).The conviction was also under Section 376A of IPC and the evidenceshowed specific acts such as drowning the victim or throttling her. In theBfirst case, the age of the victim was 5 years while in the second case thevictim was aged 13 years. In the first case the sentence imposed by thisCourt was 25 years of imprisonment without remission while in thesecond, the life sentence for the remainder of the life of the accused,was imposed.C

31. We now turn to the first submission advanced by Ms. Mathur,learned Senior Advocate on the issue of sentence. Section 235 (2) of theCode mandates that the accused must be heard on sentence. In theinstant case the order of sentence was made on the same day the orderof conviction was pronounced. In Santa Singh v. State of Punjab[53]theDaccused was convicted and sentenced to death by one single judgmentand thus bench of two judges of this Court found that there was infractionof Section 23 (2) of the Code. The sentence of death was therefore setaside and the matter was remanded to the Sessions Court. Whether, fornon-compliance of Section 235 (2) of the Code, the matter be remandedin the light of the decision in Santa Singh v. State of Punjab[53]wasEthereafter considered by bench of three judges of this Court in Dagduv. State of Maharashtra[54]. Chandrachud, CJ. who delivered the leadingjudgment, observed: -

“79. But we are unable to read the judgment in Santa Singh asFlaying down that the failure on the part of the Court, which convictsan accused, to hear him on the question of sentence mustnecessarily entail remand to that Court in order to afford to theaccused an opportunity to be heard on the question us sentence.The Court, on convicting an accused, must unquestionably hearhim on the question of sentence. But if, for any reason, it omits toGdo so and the accused makes grievance of it in the higher court,it would be open to that Court to remedy the breach by giving ahearing to the accused on the question of sentence. That

53 (1976) 4 SCC 190H54 (1977) 3 SCC 68

opportunity has to be real and effective, which means that theaccused must be permitted to adduce before the Court all thedata which he desires to adduce on the question of sentence. Theaccused may exercise that right either by instructing his counselto make oral submissions to the Court or he may, on affidavit orotherwise, place in writing before the Court whatever he desiresto place before it on the question of sentence. The Court may, inappropriate cases, have to adjourn the matter in order to give tothe accused sufficient time to produce the necessary data and tomake his contentions on the question of sentence. That, perhaps,must inevitably happen where the conviction is recorded for thefirst time by higher court.”

Goswami, J., authored concurring opinion, the relevant part ofwhich was quoted in B. A. Umesh v. High Court of Karnataka[31].

32. In Allauddin Mian v. State of Bihar[11], the order of sentencewas passed on the same day the order of conviction was pronouncedand bench of two judges of this Court commuted the sentence ofdeath to life imprisonment. In Malkiat Singh v. Stat of Punjab[12], abench of three judges of this Court did not deem it appropriate to remandthe matter for hearing the accused on sentence after six years andcommuted the sentence of death to life imprisonment. In Ajay Pandit v.State of Maharashtra[13], bench of two judges of this Court found thatthe opportunity afforded to the accused in terms of Section 235 (2) ofthe Code was purely mechanical and no genuine efforts were made toelicit any information either from the accused or from the prosecution asto whether any circumstances existed which might influence the HighCourt to avoid award of death sentence.

33. In B. A. Umesh v. High Court of Karnataka[31], bench ofthree judges of this Court considered the decisions on the point includingthe question whether the matter was required to be remanded to hearthe accused on sentence. Paragraphs 11 to 13 of the decision were asunder :-

“11. In Dagdu v. State of Maharashtra[54]Goswami, J. observesas under:

ABC

“90. I would particularly emphasise that there is no mandatorydirection for remanding any case in Santa Singh v. State ofPunjab[53]nor is remand the inevitable recipe of Section 235(2),Code of Criminal Procedure, 1973. Whenever an appeal courtfinds that the mandate of Section 235(2) CrPC for hearingon sentence had not been complied with, it, at once, becomesthe duty of the appeal court to offer to the accused an adequateopportunity to produce before it whatever materials he choosesin whatever reasonable way possible. Courts should avoid laws’delay and necessarily inconsequential remands when theaccused can secure full benefit of Section 235(2) CrPC evenin the appeal court, in the High Court or even in this Court. Wehave unanimously adopted this very course in these appeals.”

12. In another three-Judge Bench case in Tarlok Singh v. Stateof Punjab[55], at para 4, Krishna Iyer, J. writes:

“4. In Santa Singh v. State of Punjab[53]this Court consideringSection 235(2) CrPC held that the hearing contemplated bythat sub- section is not confined merely to hearing oralsubmissions but extends to giving an opportunity to theprosecution and the accused to place before the court factsand materials relating to the various factors bearing on thequestion of sentence and, if they are contested by either side,then to produce evidence for the purpose of establishing thesame. Of course, in that particular case this Court sent thecase back to the Sessions Court for complying with Section235(2) CrPC. It may well be that in many cases sending thecase back to the Sessions Court may lead to more expense,delay and prejudice to the cause of justice. In such cases, itmay be more appropriate for the appellate court to give anopportunity to the parties in terms of Section 235(2) to producethe materials they wish to adduce instead of going through theexercise of sending the case back to the trial court. This may,in many cases, save time and help produce prompt justice.”

13. In Deepak Rai v. State of Bihar[56], yet another three- JudgeBench case, Dattu, J. observes in para 54 as under:

55 (1977) 3 SCC 218

H56 (2013) 10 SCC 421

“54. Herein, it is not the case of the appellants that theopportunity to be heard on the question of sentence separatelyas provisioned for under Section 235(2) of the Code was notprovided by the courts below. Further, the trial court hasrecorded and discussed the submissions made by the appellantsand the prosecution on the said question and thereafter, rejectedthe possibility of awarding punishment less harsh than thedeath penalty. However, the High Court while confirming thesentence has recorded[57] reasons though encapsulated. The HighCourt has noticed the motive of the appellants being non-withdrawal of the case by the informant and the ghastly mannerof commission of crime whereby six innocent persons as youngas 3-year old were charred to death and concluded that theincident shocks the conscience of the entire society and thusdeserves nothing lesser but death penalty.” ”

34. Subsequently, the issue was again considered in VasantaSampat Dupare v. State of Maharashtra[32]and after referring to thedecisions of this Court including those rendered in Allauddin Mian v.State of Bihar[11], Malkiat Singh v. State of Punjab[12]and B. A. Umeshv. High Court of Karnataka[31], bench of three judges of this Courtobserved : -

“16. This Court then relied on the principle laid down in Dagdu v.State of Maharashtra[54]which was followed subsequently byanother Bench of three learned Judges in Tarlok Singh v. Stateof Punjab[55]. In the circumstances, merely because no separatedate was given for hearing on sentence, we cannot find the entireexercise to be flawed or vitiated. Since we had allowed thepetitioner to place the relevant material on record in the light ofthe principles laid down in Dagdu v. State of Maharashtra[54]wewill proceed to consider the material so placed on record andweigh these factors and the aggravating circumstances as foundby the Court in the judgment under review.”

Recently, in Manoj Suryavanshi vs. State of Chhattisgarh[58], abench of three Judges of this Court, after considering the relevantdecisions on the point, concluded:-

57 State of Bihar v. Deepak Rai, 2010 SCC OnLine Pat 949

58 (2020) 4 SCC 451

ABC

“27.2. Thus, there is no absolute proposition of law that in nocase there can be conviction and sentence on the same day.There is no absolute proposition of law laid down by this Courtin any of the decisions that if the sentence is awarded on thevery same day on which the conviction was recorded, thesentencing would be vitiated.”

Thus, merely on account of infraction of Section 235 (2) of theCode, the death sentence ought not to be commuted to life imprisonment.In any case we have afforded adequate and sufficient opportunity to theAppellant to place all the relevant materials on record in the light ofprinciple laid down in Dagdu v. State of Maharashtra[54].C

35. Before we deal with the second submission on sentence, itmust be observed that as laid down by this Court in Sharad BirdhichandSarda v. State of Maharashtra[34], case based on circumstantialevidence has to face strict scrutiny. Every circumstance from whichDconclusion of guilt is to be drawn must be fully established; thecircumstances should be conclusive in nature and tendency; they mustform chain of evidence so complete as not to leave any reasonableground for conclusion consistent with the innocence of the accused;and such chain of circumstances must be consistent only with thehypothesis of the guilt of the accused and must exclude every possibleEhypothesis except the one sought to be proved by the prosecution. Thedecision in Sharad Birdhichand Sarda v. State of Maharashtra[34]had noted the consistent view on the point including the decision of thisCourt in Hanumant v. State of Madhya Pradesh[59]in which bench ofthree judges of this Court had ruled:-F“It is well to remember that in cases where the evidence is of acircumstantial nature, the circumstances from which the conclusionof guilt is to be drawn should in the first instance be fully established,and all the facts so established should be consistent only with thehypothesis of the guilt of the accused. Again, the circumstancesshould be of conclusive nature and tendency and they should beGsuch as to exclude every hypothesis but the one proposed to beproved. In other words, there must be chain of evidence so farcomplete as not to leave any reasonable ground for conclusionconsistent with the innocence of the accused and it must be such

as to show that within all human probability the act must havebeen done by the accused.”

Secondly, on the issue as to what should be the approach in thematter of sentence, bench of three judges of this Court in VadiveluThevar v. State of Madras[60]stated:-

“Lastly, it was urged that assuming that the court was inclinedto act upon the testimony of the first witness and to record aconviction for murder as against the first appellant, the courtshould not impose the extreme penalty of law and in the stateof the record as it is, the lesser punishment provided by lawshould be deemed to meet the ends of justice. We cannot accedeto this line of argument. The first question which the court hasto consider in case like this, is whether the accused has beenproved, to the satisfaction of the court, to have committed thecrime. If the court is convinced about the truth of theprosecution story, conviction has to follow. The question ofsentence has to be determined, not with reference to the volumeor character of the evidence adduced by the prosecution insupport of the prosecution case, but with reference to the factwhether there are any extenuating circumstances which canbe said to mitigate the enormity of the crime. If the court issatisfied that there are such mitigating circumstances, only then,it would be justified in imposing the lesser of the two sentencesprovided by law. In other words, the nature of the proof hasnothing to with the character of the punishment. The nature ofthe proof can only bear upon the question of conviction - whetheror not the accused has been proved to be guilty. If the courtcomes to the conclusion that the guilt has been brought hometo the accused, and conviction follows, the process of proof isat an end. The question as to what punishment should beimposed is for the court to decide in all the circumstances ofthe case with particular reference to any extenuatingcircumstances. But the nature of proof, as we have indicated,has nothing to do with the question of punishment.In this case,there are no such extenuating circumstances which can belegitimately urged in support of the view that the lesser penaltyunder s. 302 of the Indian Penal Code, should meet the ends of

60 (1957) SCR 981 – This was, however, not case of death sentence.

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EFG

justice. It was cold-blooded murder. The accused came forthe second time, determined to see that their victim did notpossibly escape the assassins’ hands.”

(Emphasis added)

It was laid down that the question of sentence must be determinedBnot with reference to the volume or character of the evidence on recordbut with reference to the circumstances which mitigate the enormity ofthe crime and that the nature of proof can have bearing upon the questionof sentence and not with the question of punishment.

36. We may now consider some of the cases where death penaltyCwas imposed when conviction was based on circumstantial evidence.

(i) Jumman Khan vs. State of U.P. and Another[61]; whiledismissing Writ Petition of death convict this Court noted inpara 4 the earlier order passed by bench of two judges confirmingthe death sentence.

“4. Feeling aggrieved by the judgment of the High Court, thepetitioner filed S.L.P. (Criminal) No. 558 of 1986. This Courtby its order dated March 20, 1986 dismissed the SLP observingthus:

“Although the conviction of the petitioner under Section 302Eof the Indian Penal Code, 1860 rests on circumstantialevidence, the circumstantial evidence against the petitionerleads to no other inference except that of his guilt andexcludes every hypothesis of his innocence. Apart fromthe circumstances brought out by the prosecution, each oneFof which has been proved, there is no extra-judicialconfession which lends support to the prosecution case thatthe child had been raped by the petitioner and thereafterstrangulated to death.

Failure to impose death sentence in such grave caseswhere it is crime against the society — particularly incases of murders committed with extreme brutality — willbring to naught the sentence of death provided by Section302 of the Indian Penal Code. It is the duty of the court toimpose proper punishment depending upon the degree of

criminality and desirability to impose such punishment. Theonly punishment which the appellant deserves for havingcommitted the reprehensible and gruesome murder of theinnocent child to satisfy his lust, is nothing but death as ameasure of social necessity and also as means of deterringother potential offenders. The sentence of death isconfirmed.”

(ii) Amrutlal Someshwar Joshi vs. State of Maharashtra(I)[62]:-

“19.Learned counsel for the appellant further submitted thatthe case rests on the circumstantial evidence and the quality ofthe evidence adduced is not of that high order and therefore itis not safe to impose death sentence.In this context he reliedon judgment of this Court in Shankar v. State of T.N.[63]Wehave gone through that judgment and it is only indicated therethat the quality of evidence also would be factor to be takeninto consideration. The circumstantial evidence in this casecannot at all be said to be qualitatively inferior in any manner.It is well-settled that if there is clinching and reliablecircumstantial evidence, then that would be the best evidenceto be safely relied upon. As observed in Bachan Singh v.State of Punjab[8], there may be many circumstances justifyingthe passing of the lighter sentence as there are countervailingcircumstances of aggravation warranting imposition of deathsentence. In Machhi Singh v. State of Punjab[9], Bench ofthree Judges of this Court having noted the principles laid downin Bachan Singh case[8]regarding the formula of “rarest ofrare cases” for imposing death sentence, observed that theguidelines indicated in Bachan Singh case[8]will have to beculled out and applied to the facts of each individual case wherethe question of imposing of death sentence arises. It was furtherobserved as under: (SCC p. 489, para 40)

“If upon taking an overall global view of all the circumstancesin the light of the aforesaid proposition and taking intoaccount the answers to the questions posed hereinabove,

62 (1994) 6 SCC 186

63 (1994) 4 SCC 478

the circumstances of the case are such that death sentenceis warranted, the court would proceed to do so.”

Likewise in Allauddin Mian v. State of Bihar11, the same viewhas been reiterated thus: (SCC p. 22, para 12)

“However, in order that the sentences may be properly gradedBto fit the degree of gravity of each case, it is necessary thatthe maximum sentence prescribed by law should, as observedin Bachan Singh case[8], be reserved for the ‘rarest of rare’cases which are of an exceptional nature. Sentences of severityare imposed to reflect the seriousness of the crime, to promoteCrespect for the law, to provide just punishment for the offence,to afford adequate deterrent to criminal conduct and to protectthe community from further similar conduct. It serves three-fold purpose (i) punitive (ii) deterrent and (iii) protective. Thatis why this Court in Bachan Singh case[8]observed that whenthe question of choice of sentence is under consideration theDCourt must not only look to the crime and the victim but alsothe circumstances of the criminal and the impact of the crimeon the community. Unless the nature of the crime and thecircumstances of the offender reveal that the criminal is amenace to the society and the sentence of life imprisonmentEwould be altogether inadequate, the court should ordinarilyimpose the lesser punishment and not the extreme punishmentof death which should be reserved for exceptional cases only.”

Bearing these principles in mind and after having given our anxiousconsideration, we are of the firm opinion in view of the aboveFcircumstances that the case of the appellant comes within thecategory of “rarest of rare cases” and the two courts below haverightly awarded the death sentence.”

(Emphasis supplied)

(iii) Kamta Tiwari vs. State of M.P.[64]

(iv) Molai and Another vs. State of M.P.[65]

64 (1996) 6 SCC 25065 (1999) 9 SCC 581H

(v) Shivaji alias Dadya Shankar Alhat vs. State ofMaharashtra[66]; while affirming the conviction and sentence of deathfor offences under Sections 376 and 302 IPC it was observed:-

“27. The plea that in case of circumstantial evidence deathshould not be awarded is without any logic. If the circumstantialevidence is found to be of unimpeachable character in establishingthe guilt of the accused, that forms the foundation for conviction.That has nothing to do with the question of sentence as has beenobserved by this Court in various cases while awarding deathsentence. The mitigating circumstances and the aggravatingcircumstances have to be balanced. In the balance sheet of suchcircumstances, the fact that the case rests on circumstantialevidence has no role to play. In fact in most of the cases wheredeath sentences are awarded for rape and murder and the like,there is practically no scope for having an eyewitness. They arenot committed in the public view. But the very nature of things insuch cases, the available evidence is circumstantial evidence. Ifthe said evidence has been found to be credible, cogent andtrustworthy for the purpose of recording conviction, to treat thatevidence as mitigating circumstance, would amount toconsideration of an irrelevant aspect. The plea of the learnedamicus curiae that the conviction is based on circumstantialevidence and, therefore, the death sentence should not be awardedis clearly unsustainable.”

(emphasis supplied)

vi)Vasanta Sampat Dupare v. State of Maharashtra[6]

“38. On critical analysis of the evidence on record, we areconvinced that the circumstances that have been clearlyestablished are: that the appellant was seen in the courtyard wherethe minor girl and other children were playing; that the appellantwas seen taking the deceased on his bicycle; that he had gone tothe grocery shop owned by PW 6 to buy Minto fresh chocolatealong with her; that the accused had told PW 2 that the child wasthe daughter of his friend and he was going to “Tekdi-Wadi” alongwith the girl; that the appellant had led to the discovery of thedead body of the deceased, the place where he had washed his

ABC

Aclothes and at his instance the stones smeared with blood wererecovered; that the medical report clearly indicates about theinjuries sustained by the deceased on her body; that the injuriessustained on the private parts have been stated by the doctor tohave been caused by forcible sexual intercourse; that the stonesthat were seized were smeared with blood and the medicalBevidence corroborates the fact that injuries could have been causedby battering with stones; that the chemical analysis report showsthat the blood group on the stones matches with the blood groupfound on the clothes of the appellant; that the appellant has notoffered any explanation with regard to the recovery made at hisCinstance; and that nothing has been stated in his examination underSection 313 CrPC that there was any justifiable reason to implicatehim in the crime in question. Thus, we find that each of theincriminating circumstances has been clearly established and thechain of circumstances are conclusive in nature to exclude anykind of hypothesis, but the one proposed to be proved, and lead toDa definite conclusion that the crime was committed by the accused.Therefore, we have no hesitation in affirming the judgment ofconviction rendered by the learned trial Judge and affirmed bythe High Court.”

(Emphasis supplied)

vii) Manoharan v. State[67]

“23. ...... The entire chain of events has been made out anddespite this being case of circumstantial evidence, theprosecution has clearly proved its case beyondreasonableFdoubt.The courts below are right in convicting the appellant ofrape and murder.”

(Emphasis supplied)

The decisions at Sl. Nos.(iv), (vi) and (vii) were by benches ofthree Judges and dealt with cases where the convictions were inter aliaGunder Sections 302, 376 IPC and the victims were aged 16 years orbelow; while the others were by benches of two Judges.

37. However, there is definite line of cases, where thoughtshave been expressed that in cases of conviction based on circumstantial

67 (2019) 7 SCC 716H

evidence, the death sentence should not normally be imposed. Somesuch cases are:-

(i) Aloke Nath Dutta v. State of West Bengal[68]:-

“81. There is no eyewitness to the occurrence. Nobody has noticedany suspicious conduct on the part of the appellants indicatingtheir role in committing murder or disposing of the dead body.While dealing with case of grave nature like the present one,there is always danger that conjectures and suspicion may takethe place of legal truth. This Court has laid down guidelines fromtime to time in regard to finding of guilt solely on the basis ofcircumstantial evidence in number of cases..............”

(ii) Bishnu Prasad Sinha v. State of Assam[14]:-

“55. The question which remains is as to what punishment shouldbe awarded. Ordinarily, this Court, having regard to the nature ofthe offence, would not have differed with the opinion of the learnedSessions Judge as also the High Court in this behalf, but it must beborne in mind that the appellants are convicted only on the basisof thecircumstantial evidence. There are authorities for theproposition that if the evidence is proved by circumstantialevidence, ordinarily, death penalty would not be awarded.

Moreover, Appellant 1 showed his remorse and repentance evenin his statement under Section 313 of the Code of CriminalProcedure. He accepted his guilt.”

(Emphasis supplied)

(iii) Swamy Shraddananda (2) v. State of Karnataka[69]

While considering the decision of this Court in Bachan Singh[8], itwas observed:-

“36. Arguing against standardisation of cases for the purpose ofdeath sentence the Court observed that even within singlecategory offence there are infinite, unpredictable andunforeseeable variations. No two cases are exactly identical. Thereare countless permutations and combinations which are beyondthe anticipatory capacity of the human calculus. The Court further

68 (2007) 12 SCC 230

69 (2008) 13 SCC 767

observed that standardisation of the sentencing process tends tosacrifice justice at the altar of blind uniformity.

“48. That is not the end of the matter. Coupled with the deficiencyof the criminal justice system is the lack of consistency in thesentencing process even by this Court. It is noted above thatBachan Singh[8]laid down the principle of the rarest of rare cases.Machhi Singh[9]for practical application crystallised the principleinto five definite categories of cases of murder and in doing soalso considerably enlarged the scope for imposing death penalty.But the unfortunate reality is that in later decisions neither therarest of rare cases principle nor the Machhi Singh[9]categorieswere followed uniformly and consistently.

49. In Aloke Nath Dutta v. State of W.B.[68]Sinha, J. gave somevery good illustrations from number of recent decisions in whichon similar facts this Court took contrary views on giving deathDpenalty to the convict. He finally observed that “courts in thematter of sentencing act differently although the fact situationmay appear to be somewhat similar” and further “it is evidentthat different Benches had taken different view in the matter”.Katju, J. in his order passed in this appeal said that he did notagree

with the decision in Aloke Nath Dutta[68]in that it held that deathsentence was not to be awarded in case of circumstantialevidence. Katju, J. may be right that there cannot be an absoluterule excluding death sentence in all cases of circumstantialevidence(though in Aloke Nath Dutta[68] it is said “normally” andFnot as an absolute rule). But there is no denying the illustrationscited by Sinha, J. which are matter of fact.”

(emphasis supplied)

(iv) Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra[70]G

Relying upon the testimony of an approver, the sentence of deathwas awarded. The decision of this Court in Mohan and ors. vs. Stateof Tamil Nadu[71]was distinguished thus:-

70 (2009) 6 SCC 49871 (1998) 5 SCC 336 – case of kidnapping of minor boy of 10 years for ransom andHmurder. Award of death sentence to appellants Mohan and Gopi was affirmed by thisCourt.

“161. Mr Adsure has placed strong reliance on decision of thisCourt in Mohan v. State of T.N.[71]to contend that the manner inwhich the murder was committed itself points out that all theaccused deserved death penalty. In our opinion the facts of thatcase are clearly distinguishable from the present one. That caseinvolved the murder of minor. It clearly is not applicable to thepresent case. Moreover, the Court in that case too recognisedthat proper and due regard must be given to the mitigatingcircumstances in every case.”

After considering the mitigating circumstances it was observed:-

“167. The entire prosecution case hinges on the evidence of theapprover. For the purpose of imposing death penalty, that factormay have to be kept in mind.

We will assume that in Swamy Shraddananda (2)[69], this Courtdid not lay down firm law that in case involving circumstantialevidence, imposition of death penalty would not be permissible.But, even in relation thereto the question which would arise wouldbe whether in arriving at conclusion some surmises, somehypothesis would be necessary in regard to the manner in whichthe offence was committed as contradistinguished from casewhere the manner of occurrence had no role to play. Even wheresentence of death is to be imposed on the basis of the circumstantialevidence, the circumstantial evidence must be such which leadsto an exceptional case.

168. We must, however, add that in case of this nature wherethe entire prosecution case revolves round the statement of anapprover or is dependent upon the circumstantial evidence, theprudence doctrine should be invoked. For the aforementionedpurpose, at the stage of sentencing evaluation of evidence wouldnot be permissible, the courts not only have to solely depend uponthe findings arrived at for the purpose of recording judgment ofconviction, but also consider the matter keeping in view theevidences which have been brought on record on behalf of theparties and in particular the accused for imposition of lesserpunishment. statement of approver in regard to the manner inwhich crime has been committed vis-à-vis the role played by the

[2020] 13 S.C.R.

Aaccused, on the one hand, and that of the approver, on the other,must be tested on the touchstone of the prudence doctrine.”

(emphasis supplied)

(v) Purna Chandra Kusal v. State of Orissa[16]

B“7. We are, however, of the opinion that the death sentence in thepresent case was not called for. The appellant was labourerliving in basti alongside the railway line and was, at the time ofthe incident, about 30 years of age. We also see that the entireevidence is circumstantial in nature. Concededly, there is noinflexible rule that death sentence cannot be awarded in caseCresting on circumstantial evidence but courts are as matter ofprudence, hesitant in awarding this sentence, in such situation.It is true that the crime was indeed heinous one as the victimwas only five years of age and the daughter of PW 5 who was aneighbour of the appellant. On cumulative assessment of theDfacts, we are of the opinion that the death sentence should becommuted into one for life.”

(Emphasis supplied)

(vi)Neel Kumar v. The State of Haryana[72]

(vii)Sushil Sharma vs. State (NCT of Delhi)[73]

(viii) Mahesh Dhanaji Shinde vs. State of Maharashtra[74]

(ix)Kalu Khan v. State of Rajasthan[17]

“24. In respect of award of death sentence in cases where solebasis for conviction is circumstantial evidence, this Court in SwamyFShraddananda v. Stateof Karnataka[75], has acknowledged thatsuch cases have far greater chances of turning out to be wrongfulconvictions, later on, in comparison to ones which are based onfitter sources of proof. This Court cautioned that convictions basedon “seemingly conclusive circumstantial evidence” should not beGpresumed as foolproof incidences and the fact that the same arebased on circumstantial evidence must be definite factor at the

72 (2012) 5 SCC 76673 (2014) 4 SCC 31774 (2014) 4 SCC 292H75 (2007) 12 SCC 288 para 87

sentencing stage deliberations, considering that capital punishmentis unique in its total irrevocability. Further, this Court observedthat any characteristic of trial, such as conviction solely resting oncircumstantial evidence, which contributes to the uncertainty inthe “culpability calculus”, must attract negative attention whiledeciding maximum penalty for murder.

25. This Court noticed certain decisions under the American deathpenalty jurisprudence as follows: (Swamy Shraddananda case[75],SCC pp. 320-21, paras 88-90)

“88. One of the older cases in this league dates back to 1874,Merritt v. State[76], where the Supreme Court of Georgiadescribed the applicable law in Georgia as follows:

‘By the Penal Code of this State the punishment of murdershall be death, except when the conviction is founded solelyon circumstantial testimony. When the conviction is hadsolely on circumstantial testimony, then it is discretionarywith the Presiding Judge to impose the death penalty or tosentence the defendant to imprisonment in the penitentiaryfor life, unless the jury…shall recommend that the defendantbe imprisoned in the penitentiary for life; in that case thePresiding Judge has no discretion, but is bound to commutethe punishment from death to imprisonment for life in thepenitentiary.’

89. Later case of Jackson v. State[77], Ala at pp. 29-30 followedthe aforementioned case. [Also see S.M. Phillipps, FamousCases of Circumstantial Evidence with an Introduction onthe Theory of Presumptive Proof, 50-52 (1875).]

90. In United States v. Quinones[78], Supp 2d at p. 267 theCourt remarked:

‘Many States that allow the death penalty permit aconviction based solely on circumstantial evidence only ifsuch evidence excludes to moral certainty every otherreasonable inference except guilt.’”

76 (1874) 52 Gs 82

77 74 Ala 26 (1883)

78 205 Supp. 2d 256 (SDNY 2002)

A26. In Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra[70], all the accused persons including the appellantwere unemployed young men in search of employment. Inexecution of plan proposed by the appellant and accepted bythem, they kidnapped their friend with the motive of procuringransom from his family but later murdered him and after cuttingBhis body into pieces disposed of the same at different places. Oneof the accused persons turned approver and the prosecution casewas based entirely on his evidence. The trial court awarded deathsentence to the appellant. The High Court confirmed the deathsentence. In appeal, this Court observed that punishment cannotCbe determined on grounds of proportionality alone. This Courtobserved that though there was nothing to show that the appellantcould not be reformed and rehabilitated and the manner and methodof disposal of the dead body of the deceased reflected most fouland despicable case of murder, mere mode of disposal of thedead body may not by itself be made the ground for inclusion of aDcase in the rarest of rare category for the purpose of impositionof death sentence. Other factors require to be considered alongwith the aforesaid. This Court was of the view that the fact thatthe prosecution case rested on the evidence of the approver, willhave to be kept in mind. Further, that where the death sentence isEto be imposed on the basis of circumstantial evidence, thecircumstantial evidence must be such which leads to an exceptionalcase.It was further observed that the discretion given to the courtin such cases assumes onerous importance and its exercisebecomes extremely difficult because of the irrevocable characterof death penalty. Where two views ordinarily could be taken,Fimposition of death sentence would not be appropriate. In thecircumstances, the death sentence was converted to lifeimprisonment.

30. In Mahesh Dhanaji Shinde v. State of Maharashtra[74], theconviction of the appellant-accused was upheld keeping in viewthat the circumstantial evidence pointed only in the direction oftheir guilt given that the modus operandi of the crime, homicidaldeath, identity of 9 of 10 victims, last seen theory and otherincriminating circumstances were proved. However, the Court

has thought it fit to commute the sentence of death to imprisonment-for life considering the age, socioeconomic conditions, custodialbehaviour of the appellant-accused persons and that the case wasentirely based on circumstantial evidence……

31. In the instant case, admittedly the entire web of evidence iscircumstantial.The appellant-accused’s culpability rests on variousindependent evidence, such as, him being “last seen” with thedeceased before she went missing; the extra-judicial confessionof his co- accused before PW 1 and the village members;corroborative testimonies of the said village members to the extra-judicial confession and recovery of the deceased’s body; coupledwith the medical evidence which when joined together paint himin the blood of the deceased. While the said evidence proves theguilt of the appellant-accused and makes this fit case forconviction, it does not sufficiently convince the judicial mind toentirely foreclose the option of sentence lesser than the deathpenalty. Even though there are no missing links in the chain, theevidencealso does not sufficiently provide any direct indiciawhereby irrefutable conclusions can be drawn with regard to thenexus between “the crime” and “the criminal”.Undoubtedly, theaggravating circumstances reflected through the nature of thecrime and young age of the victim make the crime sociallyabhorrent and demand harsh punishment. However, there existthe circumstances such as there being no criminal antecedents ofthe appellant-accused and the entire case having been rested oncircumstantial evidence including the extra-judicial confession ofa co-accused. These factors impregnate the balance ofcircumstances and introduce uncertainty in the “culpabilitycalculus” and thus, persuade us that death penalty is not aninescapable conclusion in the instant case. We are inclined toconclude that in the present scenario an alternate to the deathpenalty, that is, imprisonment for life would be appropriatepunishment in the present circumstances.

32. In our considered view, in the impugned judgment and order,the High Court has rightly noticed that life and death are acts ofthe divine and the divine’s authority has been delegated to thehuman courts of law to be only exercised in exceptionalcircumstances with utmost caution. Further, that the first and

foremost effort of the Court should be to continue the life till itsnatural end and the delegated divine authority should be exercisedonly after arriving at conclusion that no other punishment butfor death will serve the ends of justice. We have criticallyappreciated the entire evidence in its minutest detail and are ofthe considered opinion that the present case does not warrantaward of the extreme sentence of death to the appellant-accusedand the sentence of life imprisonment would be adequate andmeet the ends of justice. We are of the opinion that the four mainobjectives which the State intends to achieve, namely, deterrence,prevention, retribution and reformation can be achieved bysentencing the appellant-accused for life.”

(emphasis supplied)

(x) Nand Kishore v. State of Madhya Pradesh[79]

“15. The learned counsel appearing for the State has placedDreliance on the judgment of this Court in Mukesh v. State (NCTof Delhi)[33][known as Nirbhaya case] in support of her caseand submitted that applying the ratio laid down in the aforesaidjudgment, the case falls in the “rarest of rare” cases attractingdeath penalty. With reference to abovesaid arguments of thelearned counsel for the State, it is to be noticed that the case ofEMukesh[33]is distinguishable on the facts from the case on hand.It is to be noticed that Mukesh[33]is case of gang rape and murderof the victim and an attempt to murder of the male victim. It wasthe specific case of the prosecution that the crimes were carriedout pursuant to conspiracy and the accused were convictedFunder Section 120-B IPC apart from other offences. Further, as afact, it was found in the aforesaid case that the accused Mukeshhad been involved in other criminal activity on the same night.Further, it is also to be noticed that in the aforesaid case, therewas dying declaration, eyewitness to the incident, etc. So far asthe present case is concerned, it solely rests on circumstantialGevidence.It is the specific case of the appellant that he was deniedthe proper legal assistance in the matter and he is manholeworker. The appellant was aged about 50 years. Further, in thiscase there is no finding recorded by the courts below to the effect

that there is no possibility of reformation of the appellant. We areof the view that the reasons assigned by the trial court as confirmedby the High Court, do not constitute special reasons within themeaning of Section 354(3) CrPC to impose death penalty on theaccused.”

(emphasis supplied)

(xi) Md. Mannan v. State of Bihar[80]

“57. In this case, the conviction of the petitioner is based oncircumstantial evidence and the alleged extra-judicial confessionmade by the petitioner to the police in course of investigation, onthe basis of which certain recoveries were made. There is noforensic evidence against the petitioner. It would, in our view, beunsafe to uphold the imposition of death sentence on the petitioner.

79. In this case, an eight-year-old innocent girl fell prey to thecarnal desire and lust of the petitioner. It is not known whetherthere was any premeditation on the part of the petitioner to murderthe victim. The circumstances in which he murdered the victimare also not known. The conviction is based on circumstantialevidence and extra-judicial confession made by the petitioner tothe police in course of investigation. There can be no doubt thatthe crime is abhorrent, but it is doubtful as to whether the crimecommitted by the petitioner can be termed as “rarest of the rare”.

(emphasis supplied)

(xii) Dileep Bankar v. State of M.P.[81]

“We are not inclined to interfere with the conviction part. However,with respect to sentence, in the facts and circumstances of thecase, we are inclined to set aside the capital sentence. It wasstated by learned Counsel for the Appellant that the Appellant hasbecome the victim of his own past and there is only circumstantialevidence against him. We deem it proper to impose the sentenceof total 25 years of imprisonment. However, death sentence is setaside.”

(emphasis supplied)

80 (2019) 16 SCC 584

81 MANU/SC/1125/2019

94SUPREME COURT REPORTS

AOut of these 12 cases, cases at Sl. Nos. (iii), (vii), (viii), (ix),(x), (xi) and (xii) were decided by benches of three Judges of this Court,while the others were decided by benches of two Judges.

38. An important case for study is the decision of this Court inRameshbhai Chandubhai Rathod vs. State of Gujarat[82], in which theBaccused was found guilty of offences punishable under Sections 363,366, 376, 397 and 302 IPC. The victim was student of 4th standard.The accused was awarded death sentence. The case was based on thecircumstantial evidence and Pasayat, J. observed:-

C“30. The plea that in case of circumstantial evidence deathshould not be awarded is without any logic. If the circumstantial evidenceis found to be of unimpeachable character in establishing the guilt of theaccused, that forms the foundation for conviction. That has nothing todo with the question of sentence as has been observed by this Court invarious cases while awarding death sentence.The mitigatingDcircumstances and the aggravating circumstances have to be balanced.In the balance sheet of such circumstances, the fact that the case restson circumstantial evidence has no role to play.In fact in most of thecases where death sentence is awarded for rape and murder and thelike, there is practically no scope for having an eyewitness. They are notEcommitted in the public view. By the very nature of things in such cases,the available evidence is circumstantial evidence. If the said evidencehas been found to be credible, cogent and trustworthy for the purpose ofrecording conviction, to treat that evidence as mitigating circumstance,would amount to consideration of an irrelevant aspect.The plea of learnedcounsel for the appellant that the conviction is based on circumstantialFevidence and, therefore, the death sentence should not be awarded isclearly unsustainable.”

(Emphasis supplied)

Having found the appellant guilty of the concerned offences,Pasayat, J. affirmed the award of death sentence.G

Ganguly, J. agreed with Pasayat, J. on the issue of conviction buton the question of sentence he was of the view that the proper sentencewas imprisonment for life. Ganguly, J. found that the reliance by the

82 (2009) 5 SCC 740H

High Court on the decision in Dhananjoy Chatterjee vs. State of W.B.[83],was incorrect. It was stated:-

“64. There are vital differences in the facts of the two cases. Inthe present case, there is no allegation that the appellant evermisbehaved with the deceased. In Dhananjoy[83], prior to the dateof crime, there were many occasions when the victim had beenteased by Dhananjoy on her way to and back from her school.The latest being on 2-3-1990, three days prior to her death, whenDhananjoy had asked the deceased to accompany him to watch amovie. To that the deceased protested and had told her motherabout it. Then her father had consulted some neighbours andthereafter, filed written complaint to the security agency whichhad hired Dhananjoy and deployed in their apartment. The agencyhad arranged for Dhananjoy to be transferred to anotherapartment. Thus there was motive and sense of revenge inthe mind of Dhananjoy in committing the crime against thedeceased.

After considering various cases, Ganguly, J. observed:-

“117. Keeping these principles in mind, I find that in the instantcase the appellant is young man and his age was 28 years old asper the version in the charge- sheet. He is married and has twodaughters. He has no criminal antecedents, at least none has beenbrought on record. His behaviour in general was not objectionableand certainly not with the deceased girl prior to the incident. Theunfortunate incident is possibly the first crime committed by theappellant. He is not otherwise criminal. Such person is not athreat to the society. His entire life is ahead of him.

120. I agree with His Lordship that the appellant has to beconvicted on other charges. However, his conviction does notautomatically lead to his death sentence. In my humble opinioninstead of death sentence sentence of rigorous imprisonmentfor life will serve the ends of justice. With the aforesaid modificationof the sentence the appeal is dismissed to the extent indicatedabove.”

AThe matter was, therefore, referred to bench of three Judges[Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat[23]] whichdid not, in terms, disagree with the view taken by Pasayat, J. nor wasthere any observation to the contrary on the issue of appreciation of acase based on circumstantial evidence in capital punishment matters.But the bench adopted the view taken by Ganguly, J. and stated asBunder:-

“9. Both the Hon’ble Judges have relied extensively on DhananjoyChatterjee case[83]. In this case the death sentence had beenawarded by the trial court on similar facts and confirmed by theCalcutta High Court and the appeal too dismissed by this CourtCleading to the execution of the accused. Ganguly, J. has, however,drawn distinction on the facts of that case and the present oneand held that as the appellant was young man, only 27 years ofage, it was obligatory on the trial court to have given finding asto possible rehabilitation and reformation and the possibility thatDhe could still become useful member of society in case he wasgiven chance to do so.

10. We are, therefore, of the opinion that in the light of the findingsrecorded by Ganguly, J. it would not be proper to maintain thedeath sentence on the appellant. At the same time the gravity ofEthe offence, the behaviour of the appellant and the fear and concernsuch incidents generate in ordered society, cannot be ignored.We, therefore, feel that via media ought to be adopted in thelight of the judgments of this Court in Ramraj v. State ofChhattisgarh[84]and Mulla v. State of U.P.[85]In these two cases,this Court has held that the term “imprisonment for life” which isFfound in Section 302 IPC, would mean imprisonment for the naturallife of the convict subject to the powers of the President and theGovernor under Articles 72 and 161 of the Constitution of India orof the State Government under Section 433-A of the Code ofCriminal Procedure.”

G39. It is also required be noted here that there was disagreementbetween two Judges who heard Swamy Sharaddananda vs. State ofKarnataka[75]. Sinha, J. was of the view that the accused be given lifesentence while Katju,

84 (2010) 1 SCC 573H85 (2010) 3 SCC 508

J. affirmed the award of death sentence. The matter was thereforereferred to bench of three Judges whose decision is reported as SwamyShraddananda (2)[69]which found the observations of Katju, J. that“there cannot be an absolute rule excluding death sentence in all casesof circumstantial evidence” to be correct. The bench however formulateda special category of sentence in paragraphs 91 to 93 of its decision.

However, the subsequent decision in Kalu Khan[17]quoted withapproval paragraphs 88 to 90 from the opinion of Sinha, J when thematter was heard by two Judges of this Court in SwamyShraddananda[75].

40. These cases discussed in preceding paragraphs show thatthough it is accepted that the observations in Swamy Shraddananda(2)[69]did not lay down any firm principle that in case involvingcircumstantial evidence, imposition of death penalty would not bepermissible, definite line of thought that where the sentence of death isto be imposed on the basis of circumstantial evidence, the circumstantialevidence must be such which leads to an exceptional case was acceptedby bench of three Judges of this Court in Kalu Khan[17]. As matter offact, it accepted the caution expressed by Sinha J. in SwamyShraddananda vs. State of Karnataka[75]and the conclusions inSantosh Kumar Satishbhushan Bariyar[70]to restate the principles withclarity in its decision.

41. It can therefore be summed up :-

a) it is not as if imposition of death penalty is impermissible tobe awarded in circumstantial evidence cases; and

b) if the circumstantial evidence is of an unimpeachablecharacter in establishing the guilt of the accused and leadsto an exceptional case or the evidence sufficiently convincesthe judicial mind that the option of sentence lesser thandeath penalty is foreclosed, the death penalty can beimposed.

42. It must therefore be held that merely because the instant caseis based on circumstantial evidence there is no reason to commute thedeath sentence. However, the matter must be considered in the light ofthe aforestated principles and see whether the circumstantial evidence

Ais of unimpeachable character and the option of lesser sentence isforeclosed.

43. Before we deal with the matter from the perspective as statedabove, we must consider the submission advanced by Ms. Mathur, learnedSenior Advocate with regard to “residual doubt” as said submission alsoBtouches upon the character of evidence.

44. The theory of “residual doubt” was noted for the first time bya bench of two judges of this Court in Ashok Debbarma Alias AchakDebbarma vs. State of Tripura[18]. The discussion in paragraphs 30 to34 under the caption “residual doubt” was as under:-C“30.

“30. An accused has profound right not to be convicted of anoffence which is not established by the evidential standard of proof“beyond reasonable doubt”. This Court in Krishnan v. State[86],held that the

“doubts would be called reasonable if they are free from aDzest for abstract speculation. Law cannot afford any favouriteother than truth. To constitute reasonable doubt, it must befree from an overemotional response. Doubts must be actualand substantial doubts as to the guilt of the accused personsarising from the evidence, or from the lack of it, as opposed toEmere vague apprehensions. reasonable doubt is not animaginary, trivial or merely possible doubt, but fair doubtbased upon reason and common sense. It must grow out ofthe evidence in the case”.

In Ramakant Rai v. Madan Rai[87], the above principle has beenreiterated.F

31. In Commonwealth v. Webster[88]at p. 320, MassachusettsCourt, as early as in 1850, has explained the expression “reasonabledoubt” as follows:

“Reasonable doubt … is not mere possible doubt; becauseGeverything relating to human affairs, and depending on moralevidence, is open to some possible or imaginary doubt. It isthat state of the case which, after the entire comparison and

86 (2003) 7 SCC 56 : 2003 SCC (Cri) 157787 (2003) 12 SCC 395 : 2004 SCC (Cri) Supp 445H88 (1850) 5 Cush 295 : 52 Am Dec 711 (Mass Sup Ct)

consideration of all the evidence, leaves the minds of the jurorsin that condition that they cannot say they feel an abidingconviction.”

In our criminal justice system, for recording guilt of the accused,it is not necessary that the prosecution should prove the case withabsolute or mathematical certainty, but only beyond reasonabledoubt. Criminal courts, while examining whether any doubt isbeyond reasonable doubt, may carry in their mind, some “residualdoubt”, even though the courts are convinced of the accusedpersons’ guilt beyond reasonable doubt. For instance, in the instantcase, it was pointed out that, according to the prosecution, 30-35persons armed with weapons such as firearms, dao, lathi, etc.,set fire to the houses of the villagers and opened fire which resultedin the death of 15 persons, but only eleven persons were charge-sheeted and, out of which, charges were framed only against fiveaccused persons. Even out of those five persons, three wereacquitted, leaving the appellant and another, who is absconding.The court, in such circumstances, could have entertained “residualdoubt” as to whether the appellant alone had committed the entirecrime, which is mitigating circumstance to be taken note of bythe court, at least when the court is considering the questionwhether the case falls under the rarest of the rare category.32. “Residual doubt” is mitigating circumstance, sometimes usedand urged before the jury in the United States and, generally, notfound favour by the various courts in the United States. InFranklin v. Lynaugh[89], while dealing with the death sentence,the Court held as follows:

“The petitioner also contends that the sentencing proceduresfollowed in his case prevented the jury from considering, inmitigation of sentence, any ‘residual doubts’ it might have hadabout his guilt. The petitioner uses the phrase ‘residual doubts’to refer to doubts that may have lingered in the minds of jurorswho were convinced of his guilt beyond reasonable doubt,but who were not absolutely certain of his guilt. Brief forPetitioner 14. The plurality and dissent reject the petitioner’s‘residual doubt’ claim because they conclude that the special

verdict questions did not prevent the jury from giving mitigatingeffect to its ‘residual doubts’ about the petitioner’s guilt. Seeante at Franklin, US p. 175; post at Franklin, US p. 189.This conclusion is open to question, however. Although thejury was permitted to consider evidence presented at the guiltphase in the course of answering the special verdict questions,the jury was specifically instructed to decide whether theevidence supported affirmative answers to the special questions‘beyond reasonable doubt’. App. 15 (emphasis added).Because of this instruction, the jury might not have thoughtthat, in sentencing the petitioner, it was free to demand proofof his guilt beyond all doubt.”

33. In California v. Brown[90]and other cases, the US courts tookthe view, “residual doubt” is not fact about the defendant or thecircumstances of the crime, but lingering uncertainty about facts,a state of mind that exists somewhere between “beyond areasonable doubt” and “absolute certainty”. The petitioner’s“residual doubt” claim is that the States must permit capitalsentencing bodies to demand proof of guilt to “an absolutecertainty” before imposing the death sentence. Nothing in ourcases mandates the imposition of this heightened burden of proofat capital sentencing.

34. We also, in this country, as already indicated, expect theprosecution to prove its case beyond reasonable doubt, but notwith “absolute certainty”. But, in between “reasonable doubt”and “absolute certainty”, decision-maker’s mind may wander,possibly in given case he may go for “absolute certainty” so asFto award death sentence, short of that he may go for “beyondreasonable doubt”. Suffice it to say, so far as the present case isconcerned, we entertaineda lingering doubt as to whether the-appellant alone couldhave executed the crime singlehandedly,especially when the prosecution itself says that it was the handiworkGof large group of people. If that be so, in our view, the crimeperpetrated by group of people in an extremely brutal, grotesqueand dastardly manner, could not have been thrown upon theappellant alonewithout charge-sheeting other group of persons

numbering around 35. All the element test as well as the residualdoubt test, in given case, may favour the accused, as mitigatingfactor.”

(Emphasis supplied)

45. The decision of this Court in Ashok Debbarma[18]was reliedupon in following decisions by benches of three judges of this Court:-

(A) In Sudam alias Rahul Kniram Jadhav v. State ofMaharashtra[19]the appellant was convicted of having caused the deathof five persons; i.e. the lady who was living with him as his wife, twochildren from her previous marriage and two children from the appellant.The death sentence awarded to him was confirmed by this Court.However, in review petition, the sentence was commuted to“imprisonment for the remainder of his life sans any right to remission”.The discussion was as under:

“19.1. At this juncture, it must be noted that though it may be arelevant consideration in sentencing that the evidence in givencase is circumstantial in nature, there is no bar on the award ofthe death sentence in cases based upon such evidence (see SwamyShraddananda v. State of Karnataka[75]and Ramesh v. State ofRajasthan[91]).

19.2. In such situation, it is up to the Court to determine whetherthe accused may be sentenced to death upon the strength ofcircumstantial evidence, given the peculiar facts and circumstancesof each case, while assessing all the relevant aggravatingcircumstances of the crime, such as its brutality, enormity andpremeditated nature, and mitigating circumstances of the accused,such as his socio-economic background, age, extreme emotionaldisturbance at the time of commission of the offence, and so on.

19.3. In this regard, it would also be pertinent to refer to thediscussion in Ashok Debbarma v. State of Tripura[86], where thisCourt elaborated upon the concept of “residual doubt” which simplymeans that in spite of being convinced of the guilt of the accusedbeyond reasonable doubt, the Court may harbour lingering orresidual doubts in its mind regarding such guilt. This Court notedthat the existence of residual doubt was ground sometimes urged

before American courts as mitigating circumstance with respectto imposing the death sentence, and noted as follows:

“33. In California v. Brown[90]and other cases, the US courtstook the view, “residual doubt” is not fact about thedefendant or the circumstances of the crime, but lingeringuncertainty about facts, state of mind that existssomewhere between “beyond reasonable doubt” and“absolute certainty”. The petitioner’s “residual doubt” claimis that the States must permit capital sentencing bodies todemand proof of guilt to “an absolute certainty” before imposingthe death sentence. Nothing in our cases mandates theimposition of this heightened burden of proof at capitalsentencing.

34. We also, in this country, as already indicated, expect theprosecution to prove its case beyond reasonable doubt, but notwith “absolute certainty”. But, in between “reasonabledoubt” and “absolute certainty”, decision-maker’s mindmay wander, possibly in given case he may go for“absolute certainty” so as to award death sentence, shortof that he may go for “beyond reasonable doubt”. Sufficeit to say, so far as the present case is concerned, weentertained lingering doubt as to whether the appellantalone could have executed the crime single- handedly,especially when the prosecution itself says that it was thehandiwork of large group of people. If that be so, in our view,the crime perpetrated by group of people in an extremelybrutal, grotesque and dastardly manner, could not have beenthrown upon the appellant alone without charge-sheeting othergroup of persons numbering around 35. All the element test aswell as the residual doubt test, in given case, may favourthe accused, as mitigating factor.”

19.4. While the concept of “residual doubt” has undoubtedly notbeen given much attention in Indian capital sentencingjurisprudence, the fact remains that this Court has on severaloccasions held the quality of evidence to higher standard forpassing the irrevocable sentence of death than that which governsconviction, that is to say, it has found it unsafe to award the deathpenalty for convictions based on the nature of the circumstantial

evidence on record. In fact, this question was given some attentionin recent decision by this Bench, in Mohd. Mannan v. State ofBihar[80], where we found it unsafe to affirm the death penaltyawarded to the accused in light of the nature of the evidence onrecord, though the conviction had been affirmed on the basis ofcircumstantial evidence.

“21. Evidently, even the fact that the evidence was circumstantialin nature did not weigh very heavily on the Court’s mind, let alonethe strength and nature of the circumstantial evidence. Be that asit may, we find that the material on record is sufficient to convincethe Court of the petitioner’s guilt beyond reasonable doubt;however, the nature of the circumstantial evidence in this caseamounts to mitigating circumstance significant enough to tilt thebalance of aggravating and mitigating circumstances in thepetitioner’s favour, keeping in mind the doctrine of prudence.Moreover, it is also possible that the incorrect observationspertaining to Anita’s facial injuries further led the Court to concludein favour of imposing the death sentence on the petitioner. Thus,we are of the considered opinion that there was reasonableprobability that this Court would have set aside the sentence ofdeath in appeal, since the only surviving evidence against thepetitioner herein pertains to his motive to commit the crime, thecircumstance of “last seen” and solitary extra-judicial confession.In other words, it cannot be said that the punishment of lifeimprisonment is unquestionably foreclosed in the instant case, inspite of the gravity and barbarity of the offence.

22. We are thus compelled to conclude that the award of thedeath penalty in the instant case, based on the evidence on record,cannot be upheld.

23. At the same time, we conclude that sentence of lifeimprisonment simpliciter would be inadequate in the instant case,given the gruesome nature of the offence, and the menace posedto society at large by the petitioner, as evinced by the conduct ofthe petitioner in jail. As per the report submitted in pursuance ofthe order of this Court dated 31-10-2018, it has been brought onrecord that the conduct of the petitioner in jail has been

Aunsatisfactory, and that he gets aggressive and indulges in illegalactivities in prison, intentionally abusing prisoners and prison staffand provoking fights with other prisoners. Two FIRs have alsobeen registered against the petitioner for abusing and threateningthe Superintendent of the Nagpur Central Prison.

B23.1. As this Court has already held in catena of decisions, byway of via media between life imprisonment simpliciter and thedeath sentence, it may be appropriate to impose restriction onthe petitioner’s right to remission of the sentence of lifeimprisonment, which usually works out to 14 years in prison uponremission. We may fruitfully refer to the decisions in SwamyC69Shraddananda (2) v. State of Karnataka and Union of Indiav. V. Sriharan[92], in this regard. We therefore direct that thepetitioner shall remain in prison for the remainder of his life.”

(Emphasis supplied)

D(B) In Ravishankar alias Baba Vishwakarma v. State ofMadhya Pradesh[20], the appellant was convicted under Sections 376,302 and 376A of IPC and also under the provisions of POCSO Act forhaving raped and caused the murder by throttling of 13 years old girl.The death sentence awarded by the trial court was confirmed by theHigh Court but in appeal the death sentence was substituted by thisECourt with imprisonment for life with direction that “no remission to begranted and that the appellant shall remain in prison for rest of his life”.The relevant passages from the decision are:-

“57. Such imposition of higher standard of proof for purposesof death sentencing over and above “beyond reasonable doubt”Fnecessary for criminal conviction is similar to the “residual doubt”metric adopted by this Court in Ashok Debbarma v. State of18Tripura wherein it was noted that: (SCC p. 763, para 31)

“31.… In our criminal justice system, for recording guilt of theaccused, it is not necessary that the prosecution should proveGthe case with absolute or mathematical certainty, but only beyondreasonable doubt. Criminal courts, while examining whetherany doubt is beyond reasonable doubt, may carry in their mind,some “residual doubt”, even though the courts are convincedof the accused persons’ guilt beyond reasonable doubt.”

H92 (2016) 7 SCC 1 : (2016) 2 SCC Cri 695

58. Ashok Debbarma[18]drew distinction between “residualdoubt”, which is any remaining or lingering doubt about thedefendant’s guilt which might remain at the sentencing stage despitesatisfaction of the “beyond reasonable doubt” standard duringconviction, and reasonable doubts which as defined in Krishnanv. State[86]are “actual and substantive, and not merely imaginary,trivial or merely possible”. These “residual doubts” although notrelevant for conviction, would tilt towards mitigating circumstanceto be taken note of whilst considering whether the case falls underthe “rarest of rare” category.

59. This theory is also recognised in other jurisdictions like theUnited States, where some State courts like the Supreme Courtof Tennessee in State v. McKinney[93]have explained that residualdoubt of guilt is valid non-statutory mitigating circumstance duringthe sentencing stage and have allowed for new evidence duringsentencing proceedings related to defendant’s character,background history, physical condition, etc.

60. The above-cited principles have been minutely observed byus, taking into consideration the peculiar facts and circumstancesof the case in hand. At the outset, we would highlight that theHigh Court while confirming death has observed that the girl wasfound bleeding due to forcible sexual intercourse, which fact,however, is not supported by medical evidence. However, sucherroneous finding has no impact on conviction under Section 376-A IPC for bare perusal of the section shows that only the factumof death of the victim during the offence of rape is required, andsuch death need not be with any guilty intention or be naturalconsequence of the act of rape only. It is worded broadly enoughto include death by any act committed by the accused if donecontemporaneously with the crime of rape.

Any other interpretation would defeat the object of ensuring safetyof women and would perpetuate the earlier loophole of the rapistsclaiming lack of intention to cause death to seek reduced chargeunder Section 304 IPC as noted in the Report of the Committeeon Amendments to Criminal Law, headed by Justice J.S. Verma,former Chief Justice of India:

“22. While we believe that enhanced penalties in substantialnumber of sexual assault cases can be adjudged on the basisof the law laid down in the aforesaid cases, certain situationswarrant specific treatment. We believe that where the offenceof sexual assault, particularly “gang rapes”, is accompaniedby such brutality and violence that it leads to death or apersistent vegetative state (or “PVS” in medical terminology),punishment must be severe — with the minimum punishmentbeing life imprisonment. While we appreciate the argumentthat where such offences result in death, the case may also betried under Section 302 IPC as “rarest of the rare” case, wemust acknowledge that many such cases may actually fallwithin the ambit of Section 304 (Part II) since the “intention tokill” may often not be established. In the case of violenceresulting in persistent vegetative state is concerned, we arereminded of the moving story of Aruna Shanbaug, the youngnurse who was brutally raped and lived the rest of her life (i.e.almost 36 years) in persistent vegetative state.

23. In our opinion, such situations must be treated differentlybecause the concerted effort to rape and to inflict violencemay disclose an intention deserving an enhanced punishment.We have therefore recommended that specific provision,namely, Section 376(3) should be inserted in the Indian PenalCode to deal with the offence of “rape followed by death orresulting in persistent vegetative state”.”

61. In the present case, there are some residual doubts in ourmind. crucial witness for constructing the last seen theory, PW5 is partly inconsistent in cross-examination and quickly jumpsfrom one statement to the other. Two other witnesses, PW 6 andPW 7 had seen the appellant feeding biscuits to the deceased oneyear before the incident and their long delay in reporting the samefails to inspire confidence. The mother of the deceased hasdeposed that the wife and daughter of the appellant came to herhouse and demanded the return of the money which she hadborrowed from them but failed to mention that she suspected theappellant of committing the crime initially. Ligature marks on theneck evidencing throttling were noted by PW 20 and PW 12 andin the post-mortem report, but find no mention in the panchnama

prepared by the police. Viscera samples sent for chemical testingwere spoilt and hence remained unexamined. Although nails’scrapings of the accused were collected, no report has beenproduced to show that DNA of the deceased was present. Anotherinitial suspect, Baba alias Ashok Kaurav absconded duringinvestigation, hence, gave rise to the possibility of involvement ofmore than one person. All these factors of course have no impactin formation of the chain of evidence and are wholly insufficientto create reasonable doubt to earn acquittal.

62. We are cognizant of the fact that use of such “residual doubt”as mitigating factor would effectively raise the standard of prooffor imposing the death sentence, the benefit of which would beavailed of not by the innocent only. However, it would be amisconception to make cost- benefit comparison between costto society owing to acquittal of one guilty versus loss of life of aperceived innocent. This is because the alternative to death doesnot necessarily imply setting the convict free.

63. As noted by the United States Supreme Court in Herrera v.Collins[94], “it is an unalterable fact that our judicial system, likethe human beings who administer it, is fallible”. However, deathbeing irrevocable, there lies greater degree of responsibility onthe court for an in-depth scrutiny of the entire material on record.Still further, qualitatively, the penalty imposed by awarding deathis much different than in incarceration, both for the convict andfor the State. Hence, corresponding distinction in requisitestandards of proof by taking note of “residual doubt” duringsentencing would not be unwarranted.

64. We are thus of the considered view that the present case fallsshort of the “rarest of rare” cases where the death sentence alonedeserves to be awarded to the appellant. It appears to us in thelight of all the cumulative circumstances that the cause of justicewill be effectively served by invoking the concept of specialsentencing theory as evolved by this Court in SwamyShraddananda (2)[69]and approved in Sriharan case[92].”

46. Since reference was made in the aforestated decisions of thisCourt to certain decisions of US Supreme Court, we may now consider

94 (1993) SCC OnLine US SC 10 : 122 L Ed 2d 203

Athose decisions and some other decisions of US Supreme Court on thepoint and whether the theory of “residual doubt” has found acceptancein the decisions of US Supreme Court.

A] California vs. Brown[90]

(a) The relevant facts noted in the opinion of the Court deliveredBby Chief Justice Rehnquist were:-

“Respondent Albert Brown was found guilty by jury of forciblerape and first-degree murder in the death of 15- year-old Susan J.At the penalty phase, the State presented evidence that respondenthad raped another young girl some years prior to his attack onCSusan J. Respondent presented the testimony of several familymembers, who recounted respondent’s peaceful nature andexpressed disbelief that respondent was capable of such brutalcrime. Respondent also presented the testimony of psychiatrist,who stated that Brown killed his victim because of his shame andDfear over sexual dysfunction. Brown himself testified, stating thathe was ashamed of his prior criminal conduct and asking for mercyfrom the jury.”

While instructing the jury to consider the aggravating and mitigatingcircumstances and to weigh them in determining the appropriate penalty,Ethe trial Court had cautioned the jury-

“that it “must not be swayed by mere sentiment, conjecture,sympathy, passion, prejudice, public opinion or public feeling.”

The instruction so issued was found to have violated the Eighthand Fourteenth Amendments by the Supreme Court of California whichFdecision was reversed by US Supreme Court as under: -

“We hold that the instruction challenged in this case does not violatethe provisions of the Eighth and Fourteenth Amendments to theUnited States Constitution. The judgment of the Supreme Courtof California is therefore reversed, and the cause is remanded forGfurther proceedings not inconsistent with this opinion.”

(b) Justice O’Connor authored concurring opinion and stated:-

“Because the individualized assessment of the appropriateness ofthe death penalty is moral inquiry into the culpability of thedefendant, and not an emotional response to the mitigating evidence,

I agree with the Court that an instruction informing the jury thatthey “must not be swayed by mere sentiment, conjecture,sympathy, passion, prejudice, public opinion or public feeling” doesnot by itself violate the Eighth and Fourteenth Amendments to theUnited States Constitution. At the same time, the jury instructions– taken as whole – must clearly inform the jury that they are toconsider any relevant mitigating evidence about defendant’sbackground and character, or about the circumstances of thecrime.”

(c) Justice Brennan (with whom Justice Marshall and JusticeStevens joined) dissented and observed:-

“The prosecutor in this case thus interpreted the antisympathyinstruction to require that the jury ignore the defendant’s evidenceon the mitigating factors of his character and upbringing. similarconstruction has been placed on the instruction in several othercases.”

(d) Justice Blackmun (with whom Justice Marshall joined) alsodissented and stated: -

“The sentencer’s ability to respond with mercy towards adefendant has always struck me as particularly valuable aspectof the capital sentencing procedure. …….

….In my view, we adhere so strongly to our belief that sentencersshould have the opportunity to spare capital defendant’s life onaccount of compassion for the individual because, recognizing thatthe capital sentencing decision must be made in the context of“contemporary values,” Gregg v. Georgia, 428 U.S., at 181, 96S.Ct., at 2928 (opinion of Stewart, POWELL, and STEVENS,JJ.), we see in the sentencer’s expression of mercy distinctivefeature of our society that we deeply value.”

Thus, the entire discussion was confined to the validity of theinstruction given to the Jury and the issue of “residual doubt” neverarose for consideration.

B] Franklin v. Lynaugh[89]

The jury had found Franklin guilty of capital murder. At theconclusion of penalty hearing, the trial court submitted two “Special

AIssues” to the jury, instructing the jury that if they determined the answerto both these questions to be “Yes,” Franklin would be sentenced todeath. The issues were:

“Do you find from the evidence beyond reasonable doubtthat the conduct of the Defendant, Donal Gene Franklin, thatBcaused the death of Mary Margaret Moran, was committeddeliberately and with the reasonable expectation that the deathof the deceased or another would result?

Do you find from the evidence beyond reasonable doubt thatthere is probability that the Defendant, Donald Gene Franklin,Cwould commit criminal acts of violence that would constitute acontinuing threat to society.”

Franklin however requested for jury instructions as follows:-

“you are instructed that any evidence which, in your opinion,mitigates against the imposition of the Death, Penalty, includingDany aspect of the Defendant’s character or record, and any ofthe circumstances of the commission of the offense …. maybe sufficient to cause you to have reasonable doubt as towhether or not the true answer of any of the Special Issues is“Yes”; and in the event such evidence does cause you to haveEsuch reasonable doubt, you should answer the Issue “No””

The request of Franklin was rejected and the jury answered bothspecial issues in affirmative whereafter the trial Court imposed deathsentence. In Federal habeas action filed by Franklin, the submission wasrecorded:-

F“Petitioner first suggests that the jury may, in its penaltydeliberations, have harbored “residual doubts” about three issuesconsidered in the guilt phase of his trial: first, petitioner’s identityas the murderer; second, the extent to which petitioner’s actions(as opposed to medical mistreatment) actually caused thevictim’s death; and third, the extent to which petitioner’s actionsGwere intended to result in the victim’s death.”

a) The decision of the Court was delivered by Justice White andthe question was formulated as under:-

“In this case, we are called on to determine if the EighthHAmendment required Texas trial court to give certain jury

instructions, relating to the consideration of mitigating evidence,that petitioner had requested in the sentencing phase of hiscapital trial”

Rejecting the challenge it was observed:-

“At the outset, we note that this Court has never held that acapital defendant has constitutional right to an instructiontelling the jury to revisit the question of his identity as themurderer as basis for mitigation.

Our edict that, in capital case, “ ‘the sentencer . . . may notbe precluded from considering, as mitigating factor, anyaspect of defendant’s character or record and any of thecircumstances of the offense,’ “ Eddings v. Oklahoma, 455U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quotingLockett, 438 U.S., at 604, 98 S.Ct., at 2964), in no waymandates reconsideration by capital juries, in the sentencingphase, of their “residual doubts” over defendant’s guilt. Suchlingering doubts are not over any aspect of petitioner’s“character,” “record,” or “circumstance of the offense.” ThisCourt’s prior decisions, as we understand them, fail to recognizea constitutional right to have such doubts considered as amitigating factor.”

b) Justice O’Connor (with whom Justice Blackmun joined)authored concurring judgement and the submission of Franklin wasnoted as under:-

“Petitioner also contends that the sentencing proceduresfollowed in his case prevented the jury from considering, inmitigation of sentence, any “residual doubt[s]” it might havehad about his guilt. Petitioner uses the phrase “residual doubts”to refer to doubts that may have lingered in the minds of jurorswho were convinced of his guilt beyond reasonable doubt,but who were not absolutely certain of his guilt. Brief forPetitioner 14. The plurality and dissent reject petitioner’s“residual doubt” claim because they conclude that the specialverdict questions did not prevent the jury from giving mitigatingeffect to its “residual doubts” about petitioner’s guilt. See anteat 2328: post, at 2335. This conclusion is open to question,

however. Although the jury was permitted to consider evidencepresented at the guilt phase in the course of answering thespecial verdict questions, the jury was specifically instructedto decide whether the evidence supported affirmative answersto the special questions “beyond reasonable doubt.” App.15 (emphasis added). Because of this instruction, the jury mightnot have thought that, in sentencing the petitioner, it was freeto demand proof of his guilt beyond all doubt.”

Justice O’Connor rejected the submission and observed: -

“In my view, petitioner’s “residual doubt” claim fails, notbecause the Texas scheme allowed for consideration ofC“residual doubt” by the sentencing body, but rather becausethe Eighth Amendment does not require it. Our cases do notsupport the proposition that defendant who has been foundto be guilty of capital crime beyond reasonable doubt has aconstitutional right to reconsideration by the sentencing bodyDof lingering doubts about his guilt. We have recognized thatsome States have adopted capital sentencing procedures thatpermit defendants in some cases to enjoy the benefit of doubtsthat linger from the guilt phase of the trial, see Lockhart v.McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 1769, 90 L.Ed.2d137 (1986), but we have never indicated that the EighthEAmendment requires States to adopt such procedures. To thecontrary, as the plurality points out, we have approved capitalsentencing procedures that preclude consideration by thesentencing body of “residual doubts” about guilt. See ante, at2327, n. 6[95].

F95 The footnote reads thus:-

“Finding constitutional right to rely on guilt-phase jury’s “residual doubts” aboutinnocence when the defense presents its mitigating case in the penalty phase is arguablyinconsistent with the common practice of allowing penalty-only trials on remand ofcases where death sentence-but not the underlying conviction-is struck down onappeal. See, e.g. Scott v. State, 310 Md. 277, 301, 529 A.2d 340, 352 (1987); Stringerv. State, 492 A.2d 928, 946 (Miss.1986); Whalen v. State, 492 A.2d 552, 569 (Del.1985).GCf. Lockhart v. McCree, 476 U.S., at 205, 106 S.Ct., at 1781 (MARSHALL, J.dissenting).

In fact, this Court has, on several previous occasions, suggested such method ofproceeding on remand, See, e.g. , Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct.1821, 1824, 95 L.Ed.2d 347 (1987). Moreover, petitioner himself, in suggesting theappropriate relief in this case, asked only that he be “resentenced in proceeding that

Our decisions mandating jury consideration of mitigatingcircumstances provide no support for petitioner’s claim because“residual doubt” about guilt is not mitigating circumstance.We have defined mitigating circumstances as facts about thedefendant’s character or background, or the circumstances ofthe particular offense, that may call for penalty less thandeath. See California v. Brown, 479 U.S., at 541, 107 S.Ct.,at 839; id., at 544, 107 S.Ct., at 840 (O’CONNOR, J.,concurring); Eddings, 455 U.S., at 110, 112, 102 S.Ct., at 874,875; id., at 117, 102 S.Ct., at 878 (O’CONNOR, J., concurring);Lockett, 438 U.S., at 605, 98 S.Ct., at 2965.“Residual doubt”is not fact about thedefendant or the circumstances of thecrime. It is instead lingering uncertainty about facts, stateof mind that exists somewhere between “beyond reasonabledoubt” and“absolute certainty.” Petitioner’s “residual doubt”claim is that the States must permit capital sentencing bodiestodemand proof of guilt to “an absolute certainty” beforeimposing the death sentence. Nothing in our cases mandatesthe imposition of this heightened burden of proof at capitalsentencing.

(Emphasis supplied)

During the course of her judgment, Justice O’Connor also madefollowing observations: -

“In my view, the principle underlying Lockett[96], Eddings[97],and Hitchcock[98]is that punishment should be directly relatedto the personal culpability of the criminal defendant.

“Evidence about the defendant’s background and character isrelevant because of the belief, long held by this society, thatdefendants who commit criminal acts that are attributable to adisadvantaged background, or to emotional and mentalproblems, may be less culpable than defendants who have no

comports with requirements of Lockett” – not that he be retried in full so as to have thebenefit of any potential guilt-phase “residual doubts.” See Brief for petitioner 21.In sum, we are quite doubtful that such “penalty-only” trials are violative of defendant’sEighth Amendment rights. Yet such is the logical conclusion of petitioner’s claim of aconstitutional right to argue “residual doubts” to capital sentencing jury.”96 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)97 455 U.S. 104, 102 S.Ct. 869. 71 L.Ed.2d 1 (1982)98 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987)

such excuse…. Thus, the sentence imposed at the penalty stageshould reflect reasoned moral response to the defendant’sbackground, character, and crime.” California v. Brown, 479U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)(O’CONNOR, J., concurring) (emphasis in original)

In light of this principle it is clear that State may notconstitutionally prevent the sentencing body from giving effectto evidence relevant to the defendant’s background or characteror the circumstances of the offense that mitigates against thedeath penalty. Indeed, the right to have the sentencer considerand weigh relevant mitigating evidence would be meaninglessunless the sentencer was also permitted to give effect to itsconsideration.

Under the sentencing procedure followed in this case the jurycould express its views about the appropriate punishment onlyby answering the special verdict questions regarding thedeliberations of the murder and the defendant’s futuredangerousness. To the extent that the mitigating evidenceintroduced by petitioner was relevant to one of the specialverdict questions, the jury was free to give effect to thatevidence by returning negative answer to that question. If,however, petitioner had introduced mitigating evidence abouthis background or character or the circumstances of the crimethat was not relevant to the special verdict questions, or thathad relevance to the defendant’s moral culpability beyond thescope of the special verdict questions, the jury instructions wouldhave provided the jury with no vehicle for expressing its“reasoned moral responds” to that evidence.”

Noting in Lockett or Eddings requires that the sentencingauthority be permitted to give effect to evidence beyond theextent to which it is relevant to the defendant’s character orbackground or the circumstances of the offense.”

(c) The dissenting opinion authored by Justice Stevens (joined byJustice Brennan and Justice Marshall) stated: -

“In requiring that the discretion of the sentencer in capitalsentencing be guided, we have never suggested that the

sentencer’s discretion could be guided by blinding it to relevantevidence. The hallmark of sentencing scheme that sufficientlyguides and directs the sentencer is the presence of proceduresthat “require the jury to consider the circumstances of the crimeand the criminal before it recommends sentence.” Id., at 197,96 S.Ct., at 2936. The requirement that the State not bar thesentencer from considering any mitigating aspect of the offenseor the offender only furthers the goal of focusing the sentencer’sattention on the defendant and the particular circumstances ofthe crime.”

C] Herrera Vs. Collins[94]

The syllabus prepared by the Reporter of Decisions summed upthe facts as under :-

“On the basis of proof which included two eyewitnessidentifications, numerous pieces of circumstantial evidence, andpetitioner Herrera’s handwritten letter impliedly admitting his guilt,Herrera was convicted of the capital murder of Police OfficerCarrisalez and sentenced to death in January 1982. After pleadingguilty, in July 1982, to the related capital murder of Officer Rucker,Herrera unsuccessfully challenged the Carrisalez conviction ondirect appeal and in two collateral proceedings in the Texas statecourts, and in federal habeas petition. Ten years after hisconviction, he urged in second federal habeas proceeding thatnewly discovered evidence demonstrated that he was “actuallyinnocent” of the murders of Carrisalez and Rucker, and that theEighth Amendment’s prohibition against cruel and unusualpunishment and the Fourteenth Amendment’s due processguarantee therefore forbid his execution. He supported this claimwith affidavits tending to show that his now-dead brother hadcommitted the murders. The District Court, inter alia, grantedhis request for stay of execution so that he could present hisactual innocence claim and the supporting affidavits in state court.In vacating the stay, the Court of Appeals held that the claim wasnot cognizable on federal habeas absent, an accompanying federalconstitutional violation.”

DEF

Rejecting federal habeas petition preferred by Herrera, ChiefJustice Rehnquist delivered the opinion of the Court and stated:-

“… … In capital cases, we have required additional protectionsbecause of the nature of the penalty at stake. See, e.g., Beck v.Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)(jury must be given option of convicting the defendant of lesseroffense). All of these constitutional safeguards, of course, makeit more difficult for the State to rebut and finally overturn thepresumption of innocence which attaches to every criminaldefendant. But we have also observed that “ due process doesnot require that every conceivable step be taken, at whatevercost, to eliminate the possibility of convicting an innocent person.”Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326,53 L.Ed.2d 281 (1977). To conclude otherwise would all butparalyze our system for enforcement of the criminal law.

Petitioner asserts that this case is different because he has beensentenced to death. But we have “refused to hold that the factthat death sentence has been imposed requires differentstandard of review on federal habeas corpus.” Murray v.Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 191989) (plurality opinion). We have, of course, held that the EighthAmendment requires increased reliability of the process by whichcapital punishment may be imposed. See, e.g., McKoy v. NorthCarolina, 494 U.S.433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)(unanimity requirement impermissibly limits jurors’ considerationof mitigating evidence); Eddings v. Oklahoma, 455 U.S. 104,102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (jury must be allowed toconsider all of capital defendant’s mitigating character evidence);Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57L.Ed.2d 973 (1978|) (plurality opinion) (same). But petitioner’sclaim does not fit well into the doctrine of these cases, since, aswe have pointed out, it is far from clear that second trial 10years after the first trial would produce more reliable result.

Perhaps mindful of this, petitioner urges not that he necessarilyreceive new trial, but that his death sentence simply be vacated

if federal habeas court deems that satisfactory showing of“actual innocence” has been made. Tr. Of Oral Arg. 19-20. Butsuch result is scarcely logical; petitioner’s claim is not that someerror was made in imposing capital sentence upon him, but thata fundamental error was made in finding him guilty of the underlyingmurder in the first place. It would be rather strange jurisprudence,in these circumstances, which held that under our Constitution hecould not be executed, but that he could spend the rest of his lifein prison.

Executive clemency has provided “fail safe” in our criminal justicesystem. K. Moore, Pardons: Justice, Mercy, and the Public Interest131 (1989). It is an unalterable fact that our judicial system, likethe human beings who administer it, is fallible. But history is repletewith examples of wrongfully convicted persons who have beenpardoned in the wake of after-discovered evidence establishingtheir innocence……”

Justice O’Connor (joined by Justice Kennedy) delivered aconcurring opinion. Justice Scalia (joined by Justice Thomas) alsorendered concurring opinion. Another concurring opinion was renderedby Justice White, while Justice Blackmun (joined by Justice Stevens andJustice Souter) dissented.

D] Oregon vs. Guzek[99]

The syllabus prepared by the Reporter of Decisions stated thefacts as under :-

“At the guilt phase of respondent Guzek’s capital murder trial, hismother was one of two witnesses who testified that he had beenwith her on the night the crime was committed. He was convictedand sentenced to death. Twice, the Oregon Supreme Court vacatedthe sentence and ordered new sentencing proceedings, but eachtime Guzek was again sentenced to death. Upon vacating hissentence for third time, the State Supreme Court held that theEighth and Fourteenth Amendments provide Guzek federalconstitutional right to introduce live alibi testimony from his motherat the upcoming resentencing proceeding. After this Court granted

Acertiorari, Guzek filed motion to dismiss the writ as improvidentlygranted.”

The decision of the Oregon Supreme Court was reversed by USSupreme Court. The opinion of the Court was delivered by Justice Breyerwith following observations:-

“4. As our discussion in Part II, supra, makes clear, the federalquestion before us is narrow one. Do the Eighth and FourteenthAmendments grant Guzek constitutional right to present evidenceof the kind he seeks to introduce, namely, new evidence that showshe was not present at the scene of the crime. That evidence isinconsistent with Guzek’s prior conviction. It sheds no light onthe manner in which he committed the crime for which he hasbeen convicted. Nor is it evidence that Guzek contends wasunavailable to him at the time of the original trial. And, to theextent it is evidence he introduced at that time, he is free tointroduce it now, albeit in transcript form. Ore.Rev.Stat.§138.012(2)(b) (2003). We can find nothing in the Eighth orFourteenth Amendments that provides capital defendant rightto introduce new evidence of this kind at sentencing.

We cannot agree with the Oregon Supreme Court that our previouscases have found in the Eighth Amendment constitutional rightEbroad enough to encompass the evidence here at issue. In Lockettv. Ohio, supra, plurality of this Court decided that defendantconvicted of acting in concert with others to rob and to kill couldintroduce at the sentencing stage evidence that she had played aminor role in the crime, indeed, that she had remained outside theFshop (where the killing took place) at the time of the crime. Aplurality of the Court wrote that,

“the Eighth and Fourteenth Amendments require that thesentencer ... not be precluded from considering, as mitigatingfactor, any aspect of defendant’s character or record andany of the circumstances of the offense that the defendantproffers as basis for sentence less than death.” Id., at604, 98 S.Ct. 2954 (emphasis added and deleted).

And in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869,71 L.Ed.2d 1, the Court majority adopted this statement. Seealso McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756,

95 L.Ed.2d 262 (1987); Bell v. Ohio, 438 U.S. 637, 642, 98S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (plurality opinion).

But the evidence at issue in these cases was traditionalsentence-related evidence, evidence that tended to show how,not whether, the defendant committed the crime. Nor was theevidence directly inconsistent with the jury’s finding of guilt.”

Justice Scalia (joined by Justice Thomas) delivered concurringopinion

E] Abdul Kabir vs. Quarterman[100]

In this case, the theory of “residual doubt” did not come up forconsideration. However in the judgement of the Court delivered byJustice Stevens, the opinion of Justice O’Connor in Franklin vs.Lynaugh89 was referred to as under:-

“What makes Franklin significant, however, is the separateopinion of Justice O’Connor, and particularly those portions ofher opinion expressing the views of five Justices, see infra, at1668 – 1669, and n.15. After summarizing the cases that clarifiedJurek’s holding she worte:

“In my view, the principle underlying Lockett, Eddings, andHitchcock is that punishment should be directly related to thepersonal culpability of the criminal defendant.

“Evidence about the defendant’s background and character isrelevant because of the belief, long held by this society, thatdefendants who commit criminal acts that are attributable to adisadvantaged background, or to emotional and mental problems,may be less culpable than defendants who have no such excuse….Thus, the sentence imposed at the penalty stage should reflect areasoned moral response to the defendant’s background, character,and crime.’ California v. Brown, 479 U.S. 538, 545, 107 S.Ct.837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring) (emphasisin original).

“In light of this principle it is clear that State may notconstitutionally prevent the sentencing body from giving effect tothe evidence relevant to the defendant’s background or character

or the circumstances of the offense that mitigates against thedeath penalty. Indeed, the right to have the sentencer considerand weigh relevant mitigating evidence would be meaninglessunless the sentencer was also permitted to give effect to itsconsideration.

B“Under the sentencing procedure followed in this case the jurycould express its views about the appropriate punishment only byanswering the special verdict questions regarding the deliberatenessof the murder and the defendant’s future dangerousness. To theextent that the mitigating evidence introduced by petitioner wasrelevant to one of the special verdict questions, the jury was freeCto give effect to that evidence by returning negative answer tothat question. If, however, petitioner had introduced mitigatingevidence about his background or character or the circumstancesof the crime that was not relevant to the special verdict questions,or that had relevance to the defendant’s moral culpability beyondDthe scope of the special verdict questions, the jury instructionswould have provided the jury with no vehicle for expressing its‘reasoned moral response’ to that evidence.” 487 U.S. at 184-185, 108 S.Ct. 2320 (opinion concurring in Judgment) (emphasisadded).”

E47. We may also note the decision of the Supreme Court ofTennessee in State vs. Mckinney[93], as it was referred to in the decisionof this Court in Ravishankar alias Baba Vishwakarma vs. State ofMadhya Pradesh[20].

In that case, the Defence Counsel sought to refer to the evidenceFfrom the “Guilt Phase” of the trial during his closing argument in thesentencing phase of the trial. Whether the decision in not permitting himto do so was correct, was the issue.

The opinion of the Court observed: -

“Residual doubt evidence,” in general, may consist of proofGadmitted during the sentencing phase that indicates thedefendant did not commit the offense, notwithstanding the jury’sverdict following the guilt phase “

“In contrast, the present case does not involve resentencingprocedure, nor does it involve defendant’s effort to introduceevidence of residual doubt. Instead, the defendant only soughtto argue evidence that had already been admitted by the trialcourt and heard by the same jury in the guilt phase of the trial.

“…..Moreover, given that this was not resentencing hearing,the reality is that the sentencing jury had already heard thetestimony underlying defense counsel’s proposed argument andhad reconciled it in favor of the State’s theory of guilt andagainst the defendant’s theory of innocence “

It was concluded: -

“.......(4) the trail court’s refusal to allow defense counsel torefer to evidence from the guilt phase of the trial during hisclosing argument in the sentencing phase of the trial did notaffect the jury’s determination to the prejudice of the defendantand was harmless error. “

48. The principles that emerge from the decisions of U.S. SupremeCourt are: -

(i) “….this Court has never held that capital defendant has aconstitutional right to an instruction telling the jury to revisit thequestion of his identity as the murderer as basis for mitigation.….”

Justice White speaking for the Court in Franklin vs. Lynaugh[89].

(ii) “….Our edict that, in capital case, “ ‘the sentencer. . . [may]not be precluded from considering, as mitigating factor, anyaspect of defendant’s character or record and any of thecircumstances of the offense,’….. in no way mandatesreconsideration by capital juries, in the sentencing phase, of their“residual doubts” over defendant’s guilt “

Justice White speaking for the Court in Franklin vs. Lynaugh[89].

(iii) “…… Our cases do not support the proposition that defendantwho has been found to be guilty of capital crime beyond areasonable doubt has constitutional right to reconsideration bythe sentencing body of lingering doubts about his guilt......”

Justice O’Connor in concurringopinion in Franklin vs.Lynaugh[89]

(iv) “… we have approved capital sentencing procedures thatpreclude consideration by the sentencing body of “residual doubts”about guilt.…”

BJustice O’Connor in concurring opinion in Franklin vs.Lynaugh[89].

(v) “…..Our decisions mandating jury consideration of mitigatingcircumstances provide no support for petitioner’s claim because“residual doubt” about guilt is not mitigating circumstance “

Justice O’Connor in concurring opinion in Franklin vs.Lynaugh[89].

(vi) “… Residual doubt” is not fact about the defendant or thecircumstances of the crime. It is instead lingering uncertaintyabout facts, state of mind that exists somewhere between “beyonda reasonable doubt” and “absolute certainty.” Petitioner’s “residualdoubt” claim is that the States must permit capital sentencing bodiesto demand proof of guilt to “an absolute certainty” before imposingthe death sentence. Nothing in our cases mandates the impositionof this heightened burden of proof at capital sentencing. (Emphasisadded)”

Justice O’Connor in concurring opinion in Franklin vs.

Lynaugh[89].

(vii)“…In capital cases, we have required additional protectionsFbecause of the nature of the penalty at stake.…..(jury must begiven option of convicting the defendant of lesser offense). Allof these constitutional safeguards, of course, make it more difficultfor the State to rebut and finally overturn the presumption ofinnocence which attaches to every criminal defendant. But weGhave also observed that “due process does not require that everyconceivable step be taken, at whatever cost, to eliminate thepossibility of convicting an innocent person.”........To concludeotherwise would all but paralyze our system for enforcement ofthe criminal law.”

Chief Justice Rehnquist speaking for the Court in Herrera Vs.Collins[94].

(viii) “…..It would be rather strange jurisprudence, in thesecircumstances, which held that under our Constitution he couldnot be executed, but that he could spend the rest of his life inprison.........”

Chief Justice Rehnquist speaking for the Court in Herrera Vs.Collins[94].

(ix)“….. Do the Eighth and Fourteenth Amendments grant Guzeka constitutional right to present evidence of the kind he seeks tointroduce, namely, new evidence that shows he was not presentat the scene of the crime. That evidence is inconsistent withGuzek’s prior conviction. It sheds no light on the manner in whichhe committed the crime for which he has been convicted......”

Justice Breyer speaking for the Court in Oregon vs. Guzek[99].

(x) “….. But the evidence at issue in these cases was traditionalsentence-related evidence, evidence that tended to show how,not whether, the defendant committed the crime. Nor was theevidence directly inconsistent with the jury’s finding of guilt.......”

Justice Breyer speaking for the Court in Oregon vs. Guzek[99].

(xi) “The sentencer’s ability to respond with mercy towards adefendant has always struck me as particularly valuable aspectof the capital sentencing procedure.........”

The observations in the dissenting opinion of Justice Blackmun in

California vs. Brown[90].

49. Following features from these decisions of U.S. Supreme Courtare noteworthy:-

(A) As the decision in California vs. Brown[90]discloses, the jurytrial comprises of two phases. The first is called “Guilt Phase” wherethe question for determination is whether the offence as alleged hasbeen proved by the prosecution which is akin to “conviction stage” inour jurisprudence; while the second phase is called “Penalty Phase” atwhich stage the question for consideration is about the appropriate penalty

Ato be awarded when the guilt is established which is similar to “sentencestage” in our jurisprudence.

In both the phases, the basic issues are to be dealt with by jurorswho are drawn from cross sections of the society, while the function forsuch determination and consideration in our jurisprudence is entrusted toBjudicial officers adequately trained and appropriately equipped withpractical experience. jury is likely to be swayed by emotions orsentiments, which is why the caution was given to the jury by the trialcourt in California vs. Brown[90]. But that element or possibility getsruled out when an experienced judicial officer is entrusted with the

Crequisite task.

(B) Secondly, there can be fresh sentencing procedure on as manyas four occasions as the decision in Oregon vs. Guzek[99]shows or theprocess of challenge may take considerable time as the decision inHerrera vs. Collins[94]discloses. Naturally, there would be some timeDgap between two phases, possibly leading to situation where thecomposition of the jury at the “Penalty Phase” may not be same as itwas at the “Guilt Phase”. Consequently, the attempts on part of thedefence to highlight any area or aspect in the evidence which could besaid to be doubtful in the hope that there could be change in perception.This possibility again does not arise in our jurisprudence, as the sameEjudicial officer who heard and decided the matter at the conviction stageis to decide the matter at the sentence stage and without any unduelapse of time.

(C) At the “Penalty Phase”, the Prosecutor and the Defence areallowed to lead evidence. Whether such leading of evidence may alsoFinclude evidence touching upon the identity of the Accused or his role inthe transaction or any matter concerning evidence leading to determinationof his guilt were the issues in Oregon vs. Guzek[99]and the portionextracted from that decision shows the approach adopted by US SupremeCourt. In our jurisprudence, if there be any new evidence which may goto the root of the matter, leading of such evidence can be permitted atGthe appellate stage subject to fulfilment of governing principles.

These features are only illustrative to say that the theory of “residualdoubt” that got developed was result of peculiarity in the processadopted. Even then, what is material to note is that the theory hasconsistently been rejected by U.S. Supreme Court and as stated byH

Justice O’Connor: - “Nothing in our cases mandated the impositionof this heightened burden of proof at capital sentencing”.

50. (A) In Ashok Debbarma[18], after noticing the decisions of USSupreme Court in California vs. Brown[90] and in Franklin vs.Lynaugh[89], it was observed that “residual doubt” as mitigatingcircumstance did not find favour with various Courts in the United States.

On facts, it was however observed that the Court entertained“lingering doubt” as to “whether the appellant alone could haveexecuted the crime single-handedly, especially when the prosecutionitself says that it was handiwork of large group of people”. Thus,the doubt that was entertained was not about the guilt of the accusedsimpliciter or about his involvement in the crime but whether the appellantalone could have committed the crime which resulted in the death of asmany as 35 persons and such doubt weighed with the Court whilecommuting death sentence to imprisonment for life.

It must be stated here that what was paraphrased in paragraph33 of the decision was the relevant portion from the opinion of JusticeO’Connor in Franklin v. Lynaugh[89]and not from the decision inCalifornia v. Brown[90].

(B) In Sudam alias Rahul Kaniram Jadhav v. State ofMaharashtra[19], it was noted in paragraph 19.1 that there would be nobar on the award of death sentence in cases based on circumstantialevidence. Thereafter, the decision in Ashok Debbarma[18]was consideredand the Court observed that in several cases, “quality of evidence to ahigher standard” was insisted upon for passing the irrevocable sentenceof death and reliance was placed on the decision in Mohd. Mannan vs.State of Bihar[80]. The deduction in paragraph 21 rested inter alia on theaspect that “the nature of the circumstantial evidence in this case amountsto circumstance significant enough to tilt the balance of aggravatingand mitigating circumstances in the petitioner’s favour”.(C) In Ravishankar[20] it was observed that “imposition of higherstandard of proof for the purposes of death sentencing over and abovebeyond reasonable doubt necessary for criminal conviction is similar tothe residual doubt metric adopted by this Court in Ashok Debbarma vs.State of Tripura[18]…”. In this case, as per paragraph 10 of the decision,blood samples of six suspects were sent for DNA analysis but only

ADNA profile from the blood of the appellant matched with that from thevaginal slide of the deceased. Additionally, reliance was placed by theprosecution on the testimony of PWs 5, 6 and 7, as set out in paragraphs17 and 18. The reason why the version coming from PWs 5, 6 and 7could not inspire complete confidence was dealt with in paragraph 61. Itwas further observed that another suspect Baba alias Ashok KauravBhaving absconded during investigation, there was possibility of involvementof more than one person, giving rise to the same safety filter adopted inAshok Debbarma[18].

51. These cases thus show that the matters were considered fromthe standpoint of individual fact situation where, going by the higher orCstricter standard for imposition of death penalty, alternative to deathsentence was found to be appropriate.

52. When it comes to cases based on circumstantial evidence inour jurisprudence, the standard that is adopted in terms of law laid downby this Court as noticed in Sharad Birdhichand Sarda[34]and subsequentDdecisions is that the circumstances must not only be individually provedor established, but they must form consistent chain, so conclusive as torule out the possibility of any other hypothesis except the guilt of theaccused. On the strength of these principles, the burden in such cases isalready of greater magnitude. Once that burden is discharged, it isEimplicit that any other hypothesis or the innocence of the accused, alreadystands ruled out when the matter is taken up at the stage of sentenceafter returning the finding of guilt. So, theoretically the concept or theoryof “residual doubt” does not have any place in case based oncircumstantial evidence. As matter of fact, the theory of residual doubtwas never accepted by US Supreme Court as discussed earlier.F

However, as summed up in Kalu Khan[17], while dealing with casesbased on circumstantial evidence, for imposition of death sentence,higher or stricter standard must be insisted upon. The approach to beadopted in matters concerning capital punishment, therefore ought to bein conformity with the principles culled out in paragraph 41 hereinaboveGand the instant matter must therefore be considered in the light of thoseprinciples.

53. If the present case is so considered, the discussion must broadlybe classified under following two heads:-

(A)Whether the circumstantial evidence in the present case isAof unimpeachable character in establishing the guilt of theAppellant or leads to an exceptional case.

(B)Whether the evidence on record is so strong and convincingthat the option of sentence lesser than death penalty isforeclosed.

Going by the circumstances proved on record and, more particularlythe facets detailed in paragraph 19 hereinabove as well as the law laiddown by this Court in series of decisions, the circumstances on recordrule out any hypothesis of innocence of the Appellant. The circumstancesare clear, consistent and conclusive in nature and are of unimpeachablecharacter in establishing the guilt of the Appellant. The evidence onrecord also depicts an exceptional case where two and half years oldgirl was subjected to sexual assault. The assault was accompanied bybites on the body of the victim. The rape was of such intensity that therewas merging of vaginal and anal orifices of the victim. The age of thevictim, the fact that the Appellant was maternal uncle of the victim andthe intensity of the assault make the present case an exceptional one.

However, if the case is considered against the second head, wedo not find that the option of sentence lesser than death penalty iscompletely foreclosed. It is true that the sexual assault was very severeand the conduct of the Appellant could be termed as perverse andbarbaric. However, definite pointer in favour of the Appellant is thefact that he did not consciously cause any injury with the intent toextinguish the life of the victim. Though all the injuries are attributable tohim and it was injury No.17 which was the cause of death, his convictionunder Section 302 IPC is not under any of the first three clauses ofSection 300 IPC. In matters where the conviction is recorded with theaid of clause fourthly under Section 300 of IPC, it is very rare that thedeath sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45and 64 of the Chart tabulated in paragraph 30 hereinabove, where thevictims were below 16 years of age and had died during the course ofsexual assault on them, the maximum sentence awarded was lifesentence. This aspect is of crucial importance while considering whetherthe option of sentence lesser than death penalty is foreclosed or not.

54. We therefore, find that though the Appellant is guilty of theoffence punishable under Section 302 IPC, since there was no requisiteintent as would bring the case under any of the first three clauses of

ASection 300 IPC, the offence in the present case does not deserve deathpenalty.

55. The second count on which death sentence has been imposedis under Section 376A of IPC. As noted earlier, the offence was committedon 11.02.2013 and just few days before such commission, Section 376ABwas inserted in IPC by the Ordinance. As concluded by us in paragraph16 hereinabove, the ex-post facto effect given to Section 376A insertedby the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitelyguilty of the offence punishable under Section 376A IPC. But the questionremains whether punishment lesser than death sentence gets ruled outCor not. As against Section 302 IPC while dealing with cases under Section376A IPC, wider spectrum is available for consideration by the Courtsas to the punishment to be awarded. On the basis of the same aspectsthat weighed with us while considering the appropriate punishment forthe offence under Section 302 IPC, in view of the fact that Section376A IPC was brought on the statute book just few days before theDcommission of the offence, the Appellant does not deserve death penaltyfor said offence.

At the same time, considering the nature and enormity of theoffence, it must be observed that the appropriate punishment for theoffence under Section 376A IPC must be rigorous imprisonment for aEterm of 25 years.

56. In view of the aforestated conclusions drawn by us, it is notnecessary to deal with the submissions IV, V, VI, VII, VIII and IX,advanced by Ms. Mathur, learned Senior Advocate in respect of theissue of sentence.F

57. Consequently, while affirming the view taken by the Courtsbelow in recording conviction of the Appellant for the offences punishableunder Sections 302 IPC and 376A IPC, we commute the sentence tolife imprisonment for the offence punishable under Section 302 IPC andto that of rigorous imprisonment for 25 years for the offence punishableGunder Section 376A IPC. The conviction and sentence recorded by theCourts below for the offences punishable under Section 376(1), (2)(f),(i) and (m) of IPC, and under Section 6 of the POCSO Act are affirmed.

58. These appeals are allowed to the aforesaid extent.