REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 117 OF 2007

Bantu …Appellant

Vs.

The State of U.P. …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Death sentence awarded by learned Special Judge

EC Act/Additional Sessions Judge, Agra in Sessions

Trial No. 83 of 2004 having been confirmed by the

Allahabad High Court in appeal and in the reference

made under Section 366 of the Code of Criminal

Procedure, 1973 (in short the ‘code’) this appeal has

been filed. The appellant was convicted for offences

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punishable under Sections 364, 376 and 302 of the

Indian Penal Code, 1860 (in short the ‘IPC’). The girl

who had not seen six summers in life was the victim

of sexual assault and animal lust of the accused

appellant. She was not only raped but was

murdered by the accused appellant.

2. Prosecution version as unfolded during trial read as

follows:

The genesis of the prosecution case was the written

FIR lodged at Police Station Tajganj of Agra District on

4.10.2003 at 10.45 PM by Naresh Kumar (PW 2). The

occurrence took place at about 9.30 O’clock the same night in

village Basai Khurd within the said police station. The victim

was an unfortunate teenaged girl Vaishali of about 5 years.

She was the daughter of Vishal.

The broad features of the case as culled out from the

FIR and evidence brought on record is as follows:

There was “Devi Jagran” at the house of Chandrasen

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alias Taplu (PW 3) in village Basai Khurd in the eventful night.

A number of persons of the locality had assembled there. The

informant- Naresh Kumar (PW2) alongwith his brother Vishal

and niece Vaishali (hereinafter referred to as the ‘deceased’)

had also gone there. Around 9 P.M. the accused Bantu-a

neighbour of the informant reached there. After exhibiting

playful and friendly gestures with Vaishali with whom he was

familiar before because of neighborhood, enticed her away on

the pretext of giving her a balloon. Several persons including

Naresh Kumar (PW 2) and Nand Kishore (PW 6) saw him going

away with the girl from the place of “Devi Jagran”. When

Vaishali did not return for a long time, a frantic search was

made to trace her out by the members of the family.

Chandrasen alias Taplu (PW 3) and Sanjiv son of Daulat Ram

informed them that they had seen the accused Bantu going

with Vaishali hoisted on his waist towards the pond. Around

9.30 PM they reached near the field of one Dharma in which

grown up Dhaincha plants were there. With the help of

torches they saw that the accused Bantu was thrusting a

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stem/stick of Dhaincha in the vagina of Vaishali having

thrown her down. An alarm was raised, by them and Bantu

was caught red handed in completely naked state. Vaishali

was lying on the ground unconscious with a part of stem of

Dhaincha inserted in her vagina. She was bleeding profusely.

She had other injuries also on her person and was not

responding at all. She was instantly rushed to S.N. Medical

College, Agra where the doctors pronounced her to be dead.

Upon interrogation, the accused Bantu allegedly admitted that

after committing the rape he inserted stem/stick in her vagina

to murder her.

On the case being registered, the investigation was

taken up by SHO Dalip Kumar Mittal (PW 7). Major part of the

investigation was conducted by him but the charge sheet

came to be submitted by subsequent Investigating officer R.K.

Dwivedi (PW 8).

A panel of two doctors headed by Dr. R.S. Chahar (PW

1) conducted post-mortem over the dead body of the deceased

on 5.10.2003 at 3 P.M. The deceased was aged about five

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years and about one day had passed since she died. The

following ante mortem injuries were found on her person:

1. Multiple contusion over face and head,

more on right side, ranging in size from .5 cm

to .5cm x 3cm. Lips were contused with swelling

multiple nail marks present over left side on her

neck and behind the left ear.

2. Abrasion 2cm x 4cm present over

posterior aspect of both elbows and right wrist.

3. Labia minora of both sides in posterior

parts contused. Hymen ruptured free and

clotted blood seen in vagina.

4. Green wooden stick found inserted in

vagine. Length of external part of stick 24 cm.

Incompletely broken in two parts. On internal

examination, stick of 33 cm length found inside

vagina, in continuation with external part of

stick. Thus total length of the stick was 57 cm

x .8cm in diameter at most of places.

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Dried blood present on external part of stick.

Internal examination revealed that small and large

intestine were perforated at places due to insertion of the

stick. The stomach contained semi digested food of about

200ml. Free and clotted blood was present in the cavity. The

mesenteric vessels in the abdomen were torn due to insertion

of wooden stick. Uterus was small in size and was ruptured

due to insertion of wooden stick into the vagina. The walls of

cervix were lacerated. Slides of vaginal swab were prepared for

examination. The wooden stick inserted inside vagina was

sealed. No spot of semen was found on the part of the body.

Due to precarious condition of vagina, it was not possible to

say whether rape was committed or not.

In the opinion of the doctor, the death was caused due

to shock and haemorrhage as a result of ante mortem injuries

due to insertion of the wooden stick into the vagina of the

deceased.

A

,

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The jeans pant of the accused was sent for chemical

analysis to ascertain marks of blood and semen. As per the

Doctor examining the accused, injuries could be caused by

blunt object and were fresh in nature. The accused was fully

capable of performing the act of rape. The injury report Ex.

Ka-5 was prepared. According to the Doctor since no smegma

was found present on the glans penis of the accused and it

was clean, it was inferred that he had committed sexual

intercourse. Smegma gets removed from the glans penis

during sexual intercourse. The abrasions on the genitals of

the accused supported his view. The Doctor denied the

suggestion that the injuries could be sustained at 7-8 P.M.

that night. Rather, he testified that the injuries could be

sustained between 10-11 P.M. that night.

The defence was of denial and false implication due to

enmity of witnesses arising out of land dispute. The accused,

however, admitted that he was the neighbour of the informant

and that there was a Devi Jagran at the house of Chandrasen

alias Taplu (PW 3) in the eventful night. Other facts were

denied by him in his statement under Section 313 Cr.P.C.

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3. In order to establish the guilt of the accused

appellant the prosecution in all examined 8 witnesses. Out of

them, Naresh Kumar (PW 2) (informant and uncle of the

deceased), Chandrasen alias Taplu (PW 3) and Nand Kishore

(PW 6) were material witnesses of fact who supported the

prosecution case in its entirety.

4. The trial court observed that the witnesses of fact

were not supposed to manufacture false evidence play on the

imagination. They truthfully narrated what they saw with

their own eyes and their testimonial assertions went a long

way to prove the factum of rape having been committed by the

accused on the unfortunate child. The trial court found the

accused guilty and sentenced him as under:

S.No.Section under which Quantum of

Punishment awarded punishment

1. 364 IPC 10 Years’ rigorous

imprisonment with

a fine of

Rs.10,000/- with

stipulation of two

years’ further simple

imprisonment in

default of payment

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of fine.

2. 376 IPC Life Imprisonment

with a fine of

Rs.15,000/- with

stipulation of three

years’ simple

imprisonment in

default of

payment of fine.

3. 302 IPC Death sentence

5. Since confirmation of death sentence needed approval

of the High Court, reference was made to the High Court.

6. In support of the appeal before the High Court it was

submitted that the circumstances do not make out the alleged

offence. The High Court did not accept it. Placing reliance on

the evidence on Naresh Kumar (PW2), Chandrasen (PW3) and

three others who had taken the accused to the police station

the conviction was accorded. It was noted that the accused

was found in a naked condition at the spot and was caught by

PW 2,3 and others. He was not wearing any underwear. The

pant which he was made to wear before he was taken to the

police station was seized by the police and was sent for

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chemical examination to ascertain marks of blood, semen etc.

The chemical examiner in its report found blood stains,

sperms and semen on the pant of the deceased.

7. The High Court also noticed that in order to

camouflage the serious kind of rape in a planned manner and

after committing rape he mercilessly inserted wooden stick

deep inside the fragile vagina of the girl to the extent of

33cms to cause her death, with a view to masquerade the

crime as an accident. The High Court did not find any merit in

the appeal and it was with a view that the death sentence was

the appropriate sentence.

8. The stand taken before the High Court was

reiterated. Additionally it was submitted that the case was

one where even if prosecution version is accepted in toto

death sentence was not the appropriate sentence.

9. Learned counsel for the respondent on the other

hand supported the judgments of the trial court and the High

Court and submitted that this was a case belonging to the

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rarest of rare category. Death sentence was the appropriate

sentence.

10. Before analyzing factual aspects it may be stated that

for a crime to be proved it is not necessary that the crime

must be seen to have been committed and must, in all

circumstances be proved by direct ocular evidence by

examining before the Court those persons who had seen its

commission. The offence can be proved by circumstantial

evidence also. The principal fact or factum probandum may be

proved indirectly by means of certain inferences drawn from

factum probans, that is, the evidentiary facts. To put it

differently circumstantial evidence is not direct to the point in

issue but consists of evidence of various other facts which are

so closely associated with the fact in issue that taken together

they form a chain of circumstances from which the existence

of the principal fact can be legally inferred or presumed.

11. It has been consistently laid down by this Court that

where a case rests squarely on circumstantial evidence, the

11

inference of guilt can be justified only when all the

incriminating facts and circumstances are found to be

incompatible with the innocence of the accused or the guilt of

any other person. (See Hukam Singh v. State of Rajasthan AIR

(1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR

1956 SC 316); Earabhadrappa v. State of Karnataka (AIR

1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985

SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC

350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC

1890). The circumstances from which an inference as to the

guilt of the accused is drawn have to be proved beyond

reasonable doubt and have to be shown to be closely

connected with the principal fact sought to be inferred from

those circumstances. In Bhagat Ram v. State of Punjab (AIR

1954 SC 621), it was laid down that where the case depends

upon the conclusion drawn from circumstances the

cumulative effect of the circumstances must be such as to

negative the innocence of the accused and bring the offences

home beyond any reasonable doubt.

12. We may also make a reference to a decision of this

12

Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10

SCC 193, wherein it has been observed thus:

“In a case based on circumstantial evidence,

the settled law is that the circumstances from

which the conclusion of guilt is drawn should

be fully proved and such circumstances must

be conclusive in nature. Moreover, all the cir-

cumstances should be complete and there

should be no gap left in the chain of evidence.

Further the proved circumstances must be

consistent only with the hypothesis of the guilt

of the accused and totally inconsistent with his

innocence....”.

13. In Padala Veera Reddy v. State of A.P. and Ors. (AIR

1990 SC 79), it was laid down that when a case rests upon

circumstantial evidence, such evidence must satisfy the

following tests:

“(1) the circumstances from which an

inference of guilt is sought to be drawn, must

be cogently and firmly established;

(2) those circumstances should be of a

definite tendency unerringly pointing towards

guilt of the accused;

(3) the circumstances, taken

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cumulatively should form a chain so complete

that there is no escape from the conclusion

that within all human probability the crime

was committed by the accused and none else;

and

(4) the circumstantial evidence in order

to sustain conviction must be complete and

incapable of explanation of any other

hypothesis than that of the guilt of the

accused and such evidence should not only be

consistent with the guilt of the accused but

should be inconsistent with his innocence.”

14. In State of U.P. v. Ashok Kumar Srivastava, (1992

Crl.LJ 1104), it was pointed out that great care must be taken

in evaluating circumstantial evidence and if the evidence

relied on is reasonably capable of two inferences, the one in

favour of the accused must be accepted. It was also pointed

out that the circumstances relied upon must be found to have

been fully established and the cumulative effect of all the facts

so established must be consistent only with the hypothesis of

guilt.

15. Sir Alfred Wills in his admirable book “Wills’

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Circumstantial Evidence” (Chapter VI) lays down the following

rules specially to be observed in the case of circumstantial

evidence: (1) the facts alleged as the basis of any legal

inference must be clearly proved and beyond reasonable

doubt connected with the factum probandum; (2) the burden

of proof is always on the party who asserts the existence of

any fact, which infers legal accountability; (3) in all cases,

whether of direct or circumstantial evidence the best evidence

must be adduced which the nature of the case admits; (4) in

order to justify the inference of guilt, the inculpatory facts

must be incompatible with the innocence of the accused and

incapable of explanation, upon any other reasonable

hypothesis than that of his guilt, (5) if there be any reasonable

doubt of the guilt of the accused, he is entitled as of right to

be acquitted”.

16. There is no doubt that conviction can be based solely

on circumstantial evidence but it should be tested by the

touch-stone of law relating to circumstantial evidence laid

down by the this Court as far back as in 1952.

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17. In Hanumant Govind Nargundkar and Anr. V. State

of Madhya Pradesh, (AIR 1952 SC 343), wherein it was

observed thus:

“It is well to remember that in cases where

the evidence is of a circumstantial nature, the

circumstances from which the conclusion of

guilt is to be drawn should be in the first in-

stance be fully established and all the facts so

established should be consistent only with

the hypothesis of the guilt of the accused.

Again, the circumstances should be of a con-

clusive nature and tendency and they should

be such as to exclude every hypothesis but

the one proposed to be proved. In other

words, there must be a chain of evidence so

far complete as not to leave any reasonable

ground for a conclusion consistent with the

innocence of the accused and it must be such

as to show that within all human probability

the act must have been done by the ac-

cused.”

18. A reference may be made to a later decision in

Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984

SC 1622). Therein, while dealing with circumstantial

evidence, it has been held that onus was on the prosecution

to prove that the chain is complete and the infirmity of lacuna

in prosecution cannot be cured by false defence or plea. The

conditions precedent in the words of this Court, before

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conviction could be based on circumstantial evidence, must be

fully established. They are:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be

fully established. The circumstances con-

cerned must or should and not may be estab-

lished;

(2) the facts so established should be

consistent only with the hypothesis of the guilt

of the accused, that is to say, they should not

be explainable on any other hypothesis except

that the accused is guilty;

(3) the circumstances should be of a

conclusive nature and tendency;

(4) they should exclude every possible

hypothesis except the one to be proved; and

(5) there must be a chain of evidence so

compete as not to leave any reasonable

ground for the conclusion consistent with the

innocence of the accused and must show that

in all human probability the act must have

been done by the accused.

19. It is obvious that he wanted to camouflage the

serious crime of rape committed by him over the 5 years old

17

girl. So in a planned manner, after committing rape, he

mercilessly inserted stem/stick deep inside the fragile vagina

of the girl to the extent of 33 cms. to cause her death, with a

view to masquerade the crime as an accident. It was his cruel

innovation that he inserted a stick deep into her vagina

causing death of the victim. It was just by providence that

due to timely reach of the witnesses (PWs 2, 3 & others) (who

were frantically searching the girl) he could be caught in

naked condition while inserting stick into the vagina of the

victim. He was near the lifeless body of the victim.

20. The offence of rape occurs in Chapter XVI of IPC. It is

an offence affecting the human body. In that Chapter, there is

a separate heading for ‘Sexual offence’, which encompasses

Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. ‘Rape’ is

defined in Section 375. Sections 375 and 376 have been

substantially changed by Criminal Law (Amendment) Act,

1983, and several new sections were introduced by the new

Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that

sweeping changes were introduced reflects the legislative

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intent to curb with iron hand, the offence of rape which affects

the dignity of a woman. The offence of rape in its simplest

term is ‘the ravishment of a woman, without her consent, by

force, fear or fraud’, or as ‘the carnal knowledge of a woman

by force against her will’. ‘Rape’ or ‘Raptus’ is when a man

hath carnal knowledge of a woman by force and against her

will (Co. Litt. 123-b); or as expressed more fully,’ rape is the

carnal knowledge of any woman, above the age of particular

years, against her will; or of a woman child, under that age,

with or against her will’ (Hale PC 628). The essential words in

an indictment for rape are rapuit and carnaliter cognovit; but

carnaliter cognovit, nor any other circumlocution without the

word rapuit, are not sufficient in a legal sense to express rape;

1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of

rape, ‘carnal knowledge’ means the penetration to any the

slightest degree of the organ alleged to have been carnally

known by the male organ of generation (Stephen’s “Criminal

Law” 9

th

Ed. p.262). In ‘Encyclopoedia of Crime and Justice’

(Volume 4, page 1356) it is stated “......even slight penetration

is sufficient and emission is unnecessary”. In Halsbury’s

Statutes of England and Wales (Fourth Edition) Volume 12, it

19

is stated that even the slightest degree of penetration is

sufficient to prove sexual intercourse. It is violation with

violence of the private person of a woman-an-outrage by all

means. By the very nature of the offence it is an obnoxious act

of the highest order.

21. The physical scar may heal up, but the mental scar

will always remain. When a woman is ravished, what is

inflicted is not merely physical injury but the deep sense of

some deathless shame. In the instant case, the victim aged

about five years was not only raped, but was murdered in a

diabolic manner.

22. The law regulates a social interests, arbitrates

conflicting claims and demands. Security of persons and

property of the people is an essential function of the State. It

could be achieved through instrumentality of criminal law.

Undoubtedly, there is a cross cultural conflict where living law

must find answer to the new challenges and the courts are

required to mould the sentencing system to meet the

challenges. The contagion of lawlessness would undermine

20

social order and lay it in ruins. Protection of society and

stamping out criminal proclivity must be the object of law

which must be achieved by imposing appropriate sentence.

Therefore, law as a corner-stone of the edifice of “order”

should meet the challenges confronting the society. Friedman

in his “Law in Changing Society” stated that, “State of criminal

law continues to be – as it should be – a decisive reflection of

social consciousness of society”. Therefore, in operating the

sentencing system, law should adopt the corrective machinery

or the deterrence based on factual matrix. By deft modulation

sentencing process be stern where it should be, and tempered

with mercy where it warrants to be. The facts and given

circumstances in each case, the nature of the crime, the

manner in which it was planned and committed, the motive

for commission of the crime, the conduct of the accused, the

nature of weapons used and all other attending circumstances

are relevant facts which would enter into the area of

consideration. For instance a murder committed due to deep-

seated mutual and personal rivalry may not call for penalty of

death. But an organised crime or mass murders of innocent

people would call for imposition of death sentence as

21

deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710),

this Court while refusing to reduce the death sentence

observed thus:

“It will be a mockery of justice to permit

the accused to escape the extreme penalty of

law when faced with such evidence and such

cruel acts. To give the lesser punishment for

the accused would be to render the justicing

system of the country suspect. The common

man will lose faith in courts. In such cases, he

understands and appreciates the language of

deterrence more than the reformative jargon.”

23. Therefore, undue sympathy to impose inadequate

sentence would do more harm to the justice system to

undermine the public confidence in the efficacy of law and

society could not long endure under such serious threats. It

is, therefore, the duty of every court to award proper sentence

having regard to the nature of the offence and the manner in

which it was executed or committed etc. This position was

illuminatingly stated by this Court in Sevaka Perumal etc. v.

State of Tamil Naidu (AIR 1991 SC 1463).

24. The criminal law adheres in general to the principle

of proportionality in prescribing liability according to the

22

culpability of each kind of criminal conduct. It ordinarily allows

some significant discretion to the Judge in arriving at a

sentence in each case, presumably to permit sentences that

reflect more subtle considerations of culpability that are raised

by the special facts of each case. Judges in essence affirm

that punishment ought always to fit the crime; yet in practice

sentences are determined largely by other considerations.

Sometimes it is the correctional needs of the perpetrator that

are offered to justify a sentence. Sometimes the desirability of

keeping him out of circulation, and sometimes even the tragic

results of his crime. Inevitably these considerations cause a

departure from just desert as the basis of punishment and

create cases of apparent injustice that are serious and

widespread.

25. Proportion between crime and punishment is a goal

respected in principle, and in spite of errant notions, it

remains a strong influence in the determination of sentences.

The practice of punishing all serious crimes with equal

severity is now unknown in civilized societies, but such a

radical departure from the principle of proportionality has

23

disappeared from the law only in recent times. Even now for a

single grave infraction drastic sentences are imposed.

Anything less than a penalty of greatest severity for any

serious crime is thought then to be a measure of toleration

that is unwarranted and unwise. But in fact, quite apart from

those considerations that make punishment unjustifiable

when it is out of proportion to the crime, uniformly

disproportionate punishment has some very undesirable

practical consequences.

26. After giving due consideration to the facts and cir-

cumstances of each case, for deciding just and appropriate

sentence to be awarded for an offence, the aggravating and

mitigating factors and circumstances in which a crime has

been committed are to be delicately balanced on the basis of

really relevant circumstances in a dispassionate manner by

the Court. Such act of balancing is indeed a difficult task. It

has been very aptly indicated in Dennis Councle MCG Dautha

v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no for-

mula of a foolproof nature is possible that would provide a rea-

sonable criterion in determining a just and appropriate pun-

24

ishment in the infinite variety of circumstances that may affect

the gravity of the crime. In the absence of any foolproof for-

mula which may provide any basis for reasonable criteria to

correctly assess various circumstances germane to the consid-

eration of gravity of crime, the discretionary judgment in the

facts of each case, is the only way in which such judgment

may be equitably distinguished.

27. In Jashubha Bharatsinh Gohil v. State of Gujarat

(1994 (4) SCC 353), it has been held by this Court that in the

matter of death sentence, the Courts are required to answer

new challenges and mould the sentencing system to meet

these challenges. The object should be to protect the society

and to deter the criminal in achieving the avowed object to law

by imposing appropriate sentence. It is expected that the

Courts would operate the sentencing system so as to impose

such sentence which reflects the conscience of the society and

the sentencing process has to be stern where it should be.

Even though the principles were indicated in the background

of death sentence and life sentence, the logic applies to all

cases where appropriate sentence is the issue.

25

28. Imposition of sentence without considering its effect

on the social order in many cases may be in reality a futile

exercise. The social impact of the crime, e.g. where it relates

to offences against women, dacoity, kidnapping,

misappropriation of public money, treason and other offences

involving moral turpitude or moral delinquency which have

great impact on social order, and public interest, cannot be

lost sight of and per se require exemplary treatment. Any

liberal attitude by imposing meager sentences or taking too

sympathetic view merely on account of lapse of time in respect

of such offences will be result-wise counter productive in the

long run and against societal interest which needs to be cared

for and strengthened by string of deterrence inbuilt in the

sentencing system.

29. In Dhananjoy Chatterjee v. State of W.B. (1994 (2)

SCC 220), this Court has observed that shockingly large

number of criminals go unpunished thereby increasingly,

encouraging the criminals and in the ultimate making justice

suffer by weakening the system’s creditability. The imposition

26

of appropriate punishment is the manner in which the Court

responds to the society’s cry for justice against the criminal.

Justice demands that Courts should impose punishment

befitting the crime so that the Courts reflect public

abhorrence of the crime. The Court must not only keep in

view the rights of the criminal but also the rights of the victim

of the crime and the society at large while considering the

imposition of appropriate punishment.

30. Similar view has also been expressed in Ravji v. State

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

case that it is the nature and gravity of the crime but not the

criminal, which are germane for consideration of appropriate

punishment in a criminal trial. The Court will be failing in its

duty if appropriate punishment is not awarded for a crime

which has been committed not only against the individual

victim but also against the society to which the criminal and

victim belong. The punishment to be awarded for a crime

must not be irrelevant but it should conform to and be

consistent with the atrocity and brutality with which the crime

has been perpetrated, the enormity of the crime warranting

27

public abhorrence and it should “respond to the society’s cry

for justice against the criminal”. If for extremely heinous crime

of murder perpetrated in a very brutal manner without any

provocation, most deterrent punishment is not given, the case

of deterrent punishment will lose its relevance.

31. These aspects have been elaborated in State of M.P.

v. Munna Choubey [2005 (2) SCC 712].

32. In Bachan Singh v. State of Punjab [1980 (2) SCC

684] a Constitution Bench of this Court at para 132 summed

up the position as follows: (SCC p.729)

“132. To sum up, the question whether or not

death penalty serves any penological purpose

is a difficult, complex and intractable issue. It

has evoked strong, divergent views. For the

purpose of testing the constitutionality of the

impugned provision as to death penalty in

Section 302, Penal Code on the ground of

reasonableness in the light of Articles 19 and

21 of the Constitution, it is not necessary for

us to express any categorical opinion, one way

or the other, as to which of these two

antithetical views, held by the Abolitionists

and Retentionists, is correct. It is sufficient to

say that the very fact that persons of reason,

learning and light are rationally and deeply

divided in their opinion on this issue, is a

ground among others, for rejecting the

28

petitioners’ argument that retention of death

penalty in the impugned provision, is totally

devoid of reason and purpose. If,

notwithstanding the view of the Abolitionists to

the contrary, a very large segment of people,

the world over, including sociologists,

legislators, jurists, judges and administrators

still firmly believe in the worth and necessity of

capital punishment for the protection of

society, if in the perspective of prevailing crime

conditions in India, contemporary public

opinion channelised through the people’s

representatives in Parliament, has repeatedly

in the last three decades, rejected all

attempts, including the one made recently, to

abolish or specifically restrict the area of death

penalty, if death penalty is still a recognised

legal sanction for murder or some types of

murder in most of the civilised countries in the

world, if the framers of the Indian Constitution

were fully aware — as we shall presently show

they were — of the existence of death penalty

as punishment for murder, under the Indian

Penal Code, if the 35th Report and

subsequent reports of the Law Commission

suggesting retention of death penalty, and

recommending revision of the Criminal

Procedure Code and the insertion of the new

Sections 235(2) and 354(3) in that Code

providing for pre-sentence hearing and

sentencing procedure on conviction for murder

and other capital offences were before

Parliament and presumably considered by it

when in 1972-73 it took up revision of the

Code of 1898 and replaced it by the Code of

Criminal Procedure, 1973, it is not possible to

hold that the provision of death penalty as an

alternative punishment for murder, in Section

302, Penal Code is unreasonable and not in

the public interest. We would, therefore,

conclude that the impugned provision in

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Section 302, violates neither the letter nor the

ethos of Article 19."

33. Similarly in Machhi Singh v. State of Punjab [1983 (3)

SCC 470] in para 38 the position was summed up as follows:

(SCC p. 489)

“38. In this background the guidelines

indicated in Bachan Singh's case (supra) will

have to be culled out and applied to the facts

of each individual case where the question of

imposing of death sentence arises. The

following propositions emerge from Bachan

Singh's case (supra):

(i) The extreme penalty of death need not

be inflicted except in gravest cases of

extreme culpability.

(ii) Before opting for the death penalty the

circumstances of the ‘offender’ also

require to be taken into consideration

along with the circumstances of the

‘crime’.

(iii) Life imprisonment is the rule and

death sentence is an exception. In other

words death sentence must be imposed

only when life imprisonment appears to

be an altogether inadequate punishment

having regard to the relevant

circumstances of the crime, and provided,

and only provided, the option to impose

sentence of imprisonment for life cannot

be conscientiously exercised having

regard to the nature and circumstances of

the crime and all the relevant

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circumstances.

(iv) A balance sheet of aggravating and

mitigating circumstances has to be drawn

up and in doing so the mitigating

circumstances have to be accorded full

weightage and a just balance has to be

struck between the aggravating and the

mitigating circumstances before the

option is exercised."

34. The position was again reiterated in Devender Pal

Singh v. State of NCT of Delhi [2002 (5)SCC 234 ] : (SCC p.

271, para 58)

“58. From Bachan Singh's case (supra) and

Machhi Singh's case (supra) the principle

culled out is that when the collective

conscience of the community is so shocked,

that it will expect the holders of the judicial

power centre to inflict death penalty

irrespective of their personal opinion as

regards desirability or otherwise of retaining

death penalty, the same can be awarded. It

was observed:

The community may entertain such

sentiment in the following circumstances:

(1) When the murder is committed in an

extremely brutal, grotesque, diabolical,

revolting, or dastardly manner so as to

arouse intense and extreme indignation

of the community.

(2) When the murder is committed for a

motive which evinces total depravity and

meanness; e.g. murder by hired assassin

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for money or reward; or cold-blooded

murder for gains of a person vis-à-vis

whom the murderer is in a dominating

position or in a position of trust; or

murder is committed in the course for

betrayal of the motherland.

(3) When murder of a member of a

Scheduled Caste or minority community,

etc. is committed not for personal

reasons but in circumstances which

arouse social wrath; or in cases of ‘bride

burning’ or ‘dowry deaths’ or when

murder is committed in order to remarry

for the sake of extracting dowry once

again or to marry another woman on

account of infatuation.

(4) When the crime is enormous in

proportion. For instance when multiple

murders, say of all or almost all the

members of a family or a large number of

persons of a particular caste, community,

or locality, are committed.

(5) When the victim of murder is an

innocent child, or a helpless woman or

old or infirm person or a person vis-à-vis

whom the murderer is in a dominating

position, or a public figure generally loved

and respected by the community.”

35. If upon taking an overall global view of all the

circumstances in the light of the aforesaid propositions and

taking into account the answers to the questions posed by

way of the test for the rarest of rare cases, the circumstances

of the case are such that death sentence is warranted, the

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court would proceed to do so.

36. What is culled out from the decisions noted

above is that while deciding the question as to whether the

extreme penalty of death sentence is to be awarded, a balance

sheet of aggravating and mitigating circumstances has to be

drawn up.

37. Lord Justice Denning, Master of the Rolls of the

Court of Appeals in England said to the Royal Commission on

Capital Punishment in 1950:

"Punishment is the way in which society

expresses its denunciation of wrong doing;

and, in order to maintain respect for the law, it

is essential that the punishment inflicted for

grave crimes should adequately reflect the

revulsion felt by the great majority of citizens

for them. It is a mistake to consider the

objects of punishments as being a deterrent or

reformative or preventive and nothing else...

The truth is that some crimes are so

outrageous that society insists on adequate

punishment, because the wrong doer deserves

it, irrespective of whether it is a deterrent or

not."

In J.J. Rousseau's The Social Contract written in

1762, he says the following:

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Again, every rogue who criminously attacks

social rights becomes, by his wrong, a rebel

and a traitor to his fatherland. By contravening

its laws, he ceases to be one of its citizens: he

even wages war against it. In such

circumstances, the State and he cannot both

be saved: one or the other must perish. In

killing the criminal, we destroy not so much a

citizen as an enemy. The trial and judgments

are proofs that he broken the Social Contract,

and so is no longer a member of the State.

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

The depraved acts of the accused call for only one sentence

that is death sentence.

39. Looked at from any angle the judgment of the High

Court, confirming the conviction and sentence imposed by the

trial court, do not warrant any interference.

40. We record our appreciation for the able assistance

rendered by Mr. Shankar Divate, learned amicus curiae in the

true spirit of friend and officer of the Court.

41. The appeal fails and is dismissed.

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…………………….....................J.

(Dr. ARIJIT PASAYAT)

………….……… .......................J.

(Dr. MUKUNDAKAM SHARMA)

New Delhi,

July 23, 2008

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