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CASE NO.:

Appeal (crl.) 256-257 of 2005

PETITIONER:

State of U.P.

RESPONDENT:

Satish

DATE OF JUDGMENT: 08/02/2005

BENCH:

Arijit Pasayat & S.H. Kapadia

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

Leave granted.

One Vishakha @ Akansha (hereinafter referred to as the `victim') who had

not even seen six summers in her life lost her life on account of bestial

acts of the respondent Satish (hereinafter referred to as the `accused')

who allegedly raped her and thereafter murdered her. When the victim went

out to school on 16.8.2001, her parents would have never thought in their

widest dreams that she would not come back home and would fall victim to

the barbaric and inhuman acts of the respondent. Rape is one of the most

depraved acts. The iniquitous flagitious act becomes abonimal when the

victim is a child. The diabolic act reaches the lowest level of humanity

when the rape is followed by brutal murder.

In a nutshell the accused faced trial in the following backdrop.

On 16.8.2001 the victim who was studying in Sarvodya Public School had gone

to school and did not return at the usual time. On the next day morning her

dead body was found in the Sugarcane field of one Moolchand around 6.00

a.m. She was lying in a dead condition and blood was oozing from her

private parts and there were marks of pressing on her neck. Report was

lodged at the nearly Police Station and the dead body was sent for post

mortem examination Dr. R.K. Gupta (PW-7) conducted the post mortem around

2.00 p.m. on 17.8.2001 and opined that death was within the preceding 24

hours.

Three persons claimed to have seen the accused nearby the place of

occurrence between 1.00 p.m. to 2.00 p.m. on the date of occurrence. Two of

them, namely, Sanjeev Kumar Tyagi (PW-3) and Kulbhushan (PW-5) claimed to

have seen the deceased being carried on a bicycle by the accused who was

taking the bicycle with the deceased sitting on the handle thereof. Anil

(PW-2) stated that he had seen the accused in perplexed state around 2.00

p.m. near the place from where the dead body of deceased was found.

Investigation was undertaken. During such investigation, there was recovery

of accused's underwear as also the undergarment the deceased was wearing.

This recovery was treated to be under Section 27 of the Indian Evidence

Act, 1872 (in short the `Evidence Act').

The trial Court found that the circumstances highlighted by the prosecution

were sufficient to fasten guilt on the accused. She, therefore, convicted

him under Section 363, 366, 376(2), 302 and 201 of the Indian Penal Code,

1860 (in short the `IPC'). The crime was held to be one falling under

rareset of rare category. Death sentence was imposed for the offence under

Section 302 IPC. Various custodial sentences and fines were imposed for

other offences. Since a death sentence was awarded the matter was referred

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to the High Court for confirmation in terms of Section 366 of Code of

Criminal Procedure, 1973 (in short the `Code'). The accused preferred an

appeal before the High Court. Both the capital sentence reference and the

criminal appeal were heard together. By the impugned judgment the High

Court set aside the judgment of conviction. It was held that the case

rested on circumstantial evidence and the circumstances highlighted by the

prosecution did not inspire confidence. Three circumstances were

highlighted by the High Court to arrive at the aforesaid conclusions.

Firstly, was held that examination of PWs. 3 and 5 after long passage of

time rendered their version unacceptable and improbable. The prosecution

did not offer any explanation for such delayed examination. Secondly, in

the FIR name of the accused was not indicated. Thirdly, presence of the

accused nearby the place from where the dead body was recovered, as deposed

by PW-2, may be a suspicious circumstance but was not determinative.

Accordingly, it was held that prosecution had failed to prove its

accusations.

In support of the appeals, learned counsel for the State submitted that the

approach of the High Court is clearly erroneous both on legal and factual

aspects. No question was put to the Investigating Officer (PW-8) regarding

alleged delayed examination. Further the evidence of PWs 2, 3 and 5 clearly

established the circumstances which unerringly point the accusing finger at

the accused. Additionally, explanation was given for non inclusion of the

name of the accused in the FIR by PW-1 and without indicating any reason

the High Court had treated the same to be unacceptable.

It is relevant to point out that during trial no question was raised about

the delayed examination and not even a plea was raised before the trial

Court that the delayed examination of PWs 3 and 5 affected credibility of

the prosecution version.

In response, learned counsel for the accused-respondent submitted that the

High Court by a well reasoned judgment has found the prosecution version to

be unreliable. That being so, this Court should not interfere with the

order of acquittal. Further, the evidence tendered by the prosecution is

not sufficient to prove unerringly that the accused was responsible for the

crime. The case being one which rests on circumstantial evidence, the view

taken by the High Court is a possible view and, therefore, this Court

should not interfere.

It has been consistently laid down by this Court that where a case rests

squarely on circumstantial evidence, the inference of guilt can be

justified only when all the incriminating facts and circumstances are found

to be incompatible with the innocence of the accused or the guilt of any

other person. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063,

Eradu v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of

Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi, AIR (1985) SC

1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350 and 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 home the offences beyond any reasonable

doubt.

We may also make reference to a decision of this Court in C. Chenga Reddy

v. State of A.P., [1996] 10 SCC 193, wherein it has been observed thus:

"21. In a case based on circumstantial evidence, the settled law is that

the circumstances from which the conclusion of guilt is drawn should be

fully proved and such circumstances must be conclusive in nature. Moreover,

all the circumstances should be complete and there should be no gap left in

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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."

In Padala Veera Reddy v. State of A.P., 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 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

guilt of the accused and such evidence should not only be consistent with

the guilty of the accused but should be inconsistent with his innocence.

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.

Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence'

(Chapter VI) lays down the following rules specially to be observed in the

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

legal inference must be clearly proved and beyond reasonable doubt

connected with the factum probandum; (2) the burden of proof is always on

the party who asserts the existence of any fact, which infers legal

accountability; (3) in all cases, whether of direct of 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; and (5) if there be any reasonable doubt of the guilt of the

accused, he is entitled as of right to be acquitted.

There is no doubt that conviction can be based solely on circumstantial

evidence but it should be tested by the touchstone of law relating to

circumstantial evidence laid down by this Court as far back in 1952.

In Hanumant Govind Nargundkar v. State of M.P., AIR (1952) SC 343 it was

observed thus;

"It is well to remember that in case where the evidence is of a

circumstantial nautre, the circumstances from which the conclusion of guilt

is to be drawn should be in the first instance be fully established, and

all the facts so established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be such as to exclude every

hypothesis but the one proposed to be proved. In other words, there must be

a chain of evidence so far complete as not to leave any reasonable ground

for a conclusion consistent with the innocence of the accused and it must

be such as to show that within all human probability the act must have been

done by the accused."

A reference may be made to a later decision in Sharad Birdhichand Sarda v.

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State of Maharashtra, AIR (1994) SC 1622. Therein, while dealing with

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

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

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

conditions precedent in the words of this Court, before conviction could be

based on circumstantial evidence must be fully established. They are:

(1) The circumstances from which the conclusion of guilt is to be drawn

should be fully established. The circumstances concerned must or should and

not may be established;

(2) The facts so established should be consistent only with the hypothesis

of the guilt of the accused, that is to say, they should not be explainable

on any other hypothesis except that the accused is guilty;

(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 complete 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.

When the evidence on record is analysed in the background of principles

highlighted above, the inevitable conclusion is that the prosecution has

established its accusations.

As regards delayed examination of certain witnesses, this Court in several

decisions has held that unless the Investigating officer is categorcially

asked as to why there was delay in examination for the witnesses the

defence cannot gain any advantage therefrom. It cannot be laid down as a

rule of universal application that it there is any delay in examination of

a particular witness the prosecution version become suspect. It would

depend upon several factors. If the explanation offered for the delayed

examination is plausible and acceptable and the court accepts the same as

plausible, there is no reason to interfere with the conclusion [See Ranbir

and Ors. v. State of Punjab, AIR (1973) SC 1409, Bodhraj @ Rodha and Ors.

v. State of Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu v. State

of M.P., [2004] 1 SCC 414.]

The High Court has placed reliance on a decision of this Court in Ganesh

Bhayan Patel and Anr. v. State of Maharashtra, [1978] 4 SCC 371. A bare

reading of the fact situation of that case shows that the delayed

examination by I.O. was not the only factor which was considered to be

determinative. On the contrary it was held that there were catena of

factors which when taken together with the delayed examination provided

basis for acquittal.

It is to be noted that the explanation when offered by I.O. on being

questioned on the aspect of delayed examination, by the accused has to be

tested by the Court on the touchstone of credibility. If the explanation is

plausible then no adverse inference can be drawn. On the other hand, if the

explanation is found to be implausible, certainly the Court can consider it

to be one of the factors to affect credibility of the witnesses who were

examined belatedly. It may not have any effect on the credibility of

prosecution's evidence tendered by the other witnesses.

One significant factor which seems to have missed by the High Court is that

there was no suggestion to either PW-3 or PW-5 that in fact they had not

seen the accused and deceased together. Even no question was asked about

that aspect in cross-examination. On the contrary, an irrelevant suggestion

was given that though the witness and seen them together, the witness had

not asked the accused as to why he was walking while carrying the deceased

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on the bicycle. That being so, the High Court could not have come to the

conclusion that there was no credible evidence of the accused and the

deceased being seen together by PWs 3 and 5. As noted above, the I.O.

(PW-8) was never asked the reason for delayed examination of PWs 3 and 5.

The cross examination was only on the aspect of the recovery of the

underwear and undergarment of the accused and the deceased respectively.

The last seen theory comes into play where the time-gap between the point

of time when the accused and the deceased were seen last alive and when the

deceased is found dead is so small that possibility of any person other

than the accused being the author of the crime becomes impossible. It would

be difficult in some cases to positively establish that the deceased was

last seen with the accused when there is a long gap and possibility of

other persons coming in between exists. In the absence of any other

positive evidence to conclude that the accused and the deceased were last

seen together, it would be hazardous to come to a conclusion of guilt in

those cases. In this case there is positive evidence that the deceased and

the accused were seen together by witnesses PWs. 3 and 5, in addition to

the evidence of PW-2.

The reason as to why accused's name did not find place in the FIR was

explained by the informant when he was recalled. The High Court drew an

adverse inference without indicating any reason therefore. Looked at from

above angle, the High Court's order is clearly untenable and unsustainable

and deserves to be set aside, which we direct.

There is no embargo on the appellate Court reviewing the evidence upon

which an order of acquittal is based. Generally, the order of acquittal

shall not be interfered with because the presumption of innocence of the

accused is further strengthened by acquittal. The golden thread which runs

through the web of administration of justice in criminal cases is that if

two views are possible on the evidence adduced in the case, one pointing to

the guilt of the accused and the other to his innocence, the view which is

favourable to the accused should be adopted. The paramount consideration of

the Court is to ensure that miscarriage of justice is prevented. A

miscarriage of justice which may arise from acquittal of the guilty is no

less than from the conviction of an innocent. In a case where admissible

evidence is ignored, a duty is cast upon the appellate Court to re-

appreciate the evidence where the accused has been acquitted, for the

purpose of ascertaining as to whether any of the accused really committed

any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh,

(2002) 2 Supreme 567]. The principle to be followed by appellate Court

considering the appeal against the judgment of acquittal is to interfere

only when there are compelling and substantial reasons for doing so. If the

impugned judgment is clearly unreasonable and relevant and convincing

materials have been unjustifiably eliminated in the process, it is a

compelling reason for interference. These aspects were highlighted by this

Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, AIR

(1973) SC 2622, Ramesh Babulal Doshi v. State of Gujarat, (1996) 4 Supreme

167, Jaswant Singh v. State of Haryana, (2000) 3 Supreme 320, Raj Kishore

Jha v. State of Bihar and Ors., (2003) 7 Supreme 152. State of Punjab v.

Karnail Singh, (2003) 5 Supreme 508 and State of Punjab v. Pohla Singh and

Anr., (2003) 7 Supreme 17.

In Bachan Singh v. State of Punjab, [1980] 3 SCC 684 and Machhi Singh and

Ors. v. State of Punjab, [1983] 3 SCC 470 the guidelines which are to be

kept in view when considering the question whether the case belongs to the

rarest of the rare category for awarding death sentence were indicated.

In Machhi Singh's case supra it was observed:

"The following questions may be asked and answered as a test to

determine the "rarest of the rare" case in which death sentence can

be inflicted:-

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(a) Is there something uncommon about the crime which renders

sentence of imprisonment for life inadequate and calls for a death

sentences?

(b) Are the circumstance of the crime such that there is no

alternative but to impose death sentence even after according

maximum, weightage to the mitigating circumstances which speak in

favour of the offender?

The following guidelines which emerge from Bachan Singh case

(supra) will have to be applied to the facts of each individual

case where the question of imposition of death sentence arises:

(SCC p. 489, para 38):-

(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. Death sentence must be imposed only when life

imprisonment appears to be an altogether inadequate punishment

having regard to the relevant circumstance of the crime, and

provided, and only provided, the option to impose sentence of

imprisonment for life cannot be conscientiously exercised having

regard to the nature and circumstances of the crime and all the

relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances

has to be drawn up and in doing so the mitigating circumstances

have to be accorded full weightage and a just balance has to be

struck between the aggravating and the mitigating circumstances

before the option is exercised.

In rarest of rare cases when 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, death sentence can be awarded. The community may entertain

such sentiment in the following circumstances :

(1) When the murder is committed in an extremely brutal, grotesque,

disbolical, revolting or dastardly manner so as to arouse intense and

extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity

and meanness; e.g. murder by hired assassin for money or reward or a cold-

blooded murder for gains of a person vis-a-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-a-vis whom the murderer is in

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dominating position or a public figure generally loved and respected by the

community.

If upon taking an overall global view of all the circumstances in

the light of the aforesaid proposition and taking into account the

answers to the questions posed by way of the test for the rarest of

rare cases, the circumstances of the case are such that death

sentence is warranted, the court would proceed to do so."

A convict hovers between life and death when the question of gravity of the

offence and award of adequate sentence comes up for consideration. Mankind

has shifted from the state of nature towards a civilized society and it is

no longer the physical opinion of the majority that takes away the liberty

of a citizen by convicting him and making him suffer a sentence of

imprisonment. Award of punishment following conviction at a trial in a

system wedded to the rule of law is the outcome of cool deliberation in the

court room after adequate hearing is afforded to the parties, accusations

are brought against the accused, the prosecuted is given an opportunity of

meeting the accusations by establishing his innocence. It is the outcome of

cool deliberations and the screening of the material by the informed man

i.e. the judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of

just desert that servers as the foundation of every criminal sentence that

is justifiable. As a principle of criminal justice it is hardly less

familiar or less important than the principle that only the guilty ought to

be punished. Indeed, the requirement that punishment not be

disproportionately great, which is a corollary of just desert, is dictated

by the same principle that does not allow punishment of the innocent, for

any punishment in excess of what is deserved for the criminal conduct is

punishment without guilt.

The criminal law adheres in general to the principle of proportionality in

prescribing liability according to the culpability of each kind of criminal

conduct. It ordinarily allows some significant discretion to the judge in

arriving at a sentence in each cases, 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.

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. Anything less than a penalty of greatest

severity for any serious crime is thought 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.

Considering the view expressed by this Court in Bachan Singh's case (supra)

and Machhi Singh's case (supra) we have no hesitation in holding that the

case at hand falls in rarest of rare category and death sentence awarded by

the trial Court was appropriate. The acquittal of the respondent-accused is

clearly unsustainable and is set aside. In the ultimate result, the

judgment of the High Court is set aside and that of the trial Court is

restored. The appeals are allowed.