LAW FOR ALL : Whether it comes under Sec.302 or 376 A IPC - whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years

Wednesday, November 4, 2020

Whether it comes under Sec.302 or 376 A IPC - whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years

Whether it comes under Sec.302 or 376 A IPC - whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years

where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one. 135 However, if the case is considered against the second head, we do not find that the option of a sentence lesser than death penalty is completely foreclosed. It is true that the sexual assault was very severe and the conduct of the Appellant could be termed as perverse and barbaric. However, a definite pointer in favour of the Appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 which was the cause of death, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC. In matters where the conviction is recorded with the aid of clause fourthly under Section 300 of IPC, it is very rare that the death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove, where the victims were below 16 years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence. This aspect is of crucial importance while considering whether the option of a sentence lesser than death penalty is foreclosed or not. 54. We therefore, find that though the Appellant is guilty of the offence punishable under Section 302 IPC, since there was no requisite intent as would bring the case under any of the first three clauses of Section 300 IPC, the offence in the present case does not deserve death penalty. 136 55. The second count on which death sentence has been imposed is under Section 376A of IPC. As noted earlier, the offence was committed on 11.02.2013 and just few days before such commission, Section 376A was inserted in IPC by the Ordinance. As concluded by us in paragraph 16 hereinabove, the ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution. The Appellant is thus definitely guilty of the offence punishable under Section 376A IPC. But the question remains whether punishment lesser than death sentence gets ruled out or not. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years.

Consequently, while affirming the view taken by the Courts below in recording conviction of the Appellant for the offences punishable under Sections 302 IPC and 376A IPC, we commute the sentence to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The conviction and sentence recorded by the Courts 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.763-764 OF 2016

SHATRUGHNA BABAN MESHRAM …Appellant

VERSUS

STATE OF MAHARASHTRA …Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. These appeals by Special Leave challenge the common judgment

and order dated 12.10.2015 passed by the High Court1

in Criminal Appeal

No.321 of 2015 and Criminal Confirmation Case No.1 of 2015 affirming the

judgment and order dated 14.08.2015 passed by the Trial Court2

in Special

Case (POCSO Act3

) No.11 of 2013 and confirming the Death Sentence

awarded to the Appellant on two counts i.e. under Section 302 of the Indian

Penal Code (IPC, for short) and under Section 376A of IPC.

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

The Additional Sessions Judge, Yavatmal

The Protection of Children from Sexual Offences Act, 2012.

2. The victim in the present case was a girl of two and half years of age

and the First Information Report was lodged at 09.25 p.m. on 11.02.2013 by

her father with Parwa Police Station, Yavatmal as under:-

“By coming to the Police Station, I lodge an oral report that

since one year I am residing with my family at Zatala. I have

two daughters and one son. The victim, aged 2 years is my

daughter No.-2. I reside in the neighbourhood of my fatherin-law.

This day 11.02.13, as there was a programme of

Mahaprasad in Duttatraya Temple in the village I had gone

there for taking meals at about 7.00 p.m. After taking meals

I returned home at about 7.30 p.m. At that time I did not see

my daughter Miss XXX4

at home. Therefore, I asked my

father-in-law as to where was my daughter. On it, he told

me, “Shatrughna Baban Meshram, aged 21 years, resident

of Zatala has taken away your daughter XXX4

from me

saying that he would reach her to you”. But Shatrughna did

not bring my daughter to me. So I searched my daughter in

the village. I saw my daughter XXX4

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. Her face was bitten and

private parts were swollen. I came out with 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 daughter in

an auto from the village to Dr. Jaffar Siddiqui from Kurli.

The doctor examined her and declared her dead. So we

returned home.

Shatrughna Meshram took my daughter XXX4

in the

building of Anganwadi, committed rape on her inhumanly

in solitude, bit her on 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 there were

The identity of the victim is not being disclosed

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 is visible on the left cheek.

Similarly, both the lips are bitten. An injury measuring 2 Cms. X 3 Cms. X 1

Cms. is visible on the chin”. It also recorded that there were bite marks on

the chest and stomach of the victim 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.23 and

conducted spot panchnama. At the spot, full pant of the victim, pieces of

flesh and chappals of an adult male were found.

5. The Appellant was taken to PW7 Dr. Ulhas Digambar Lingawar for

medical examination who found that:-

“There was injury of abrasion on tip of the glans penis. The

injury size 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 witness had

stated in his opinion Exh 46:-

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

present.

(2) Yes, injury mentioned in certificate can be possible,

due to sexual intercourse.”

6. The Post Mortem on the body of the victim was conducted on

12.02.2013 by a Board of five medical professionals and the Report (Exh.

53) noted:-

“Evidence of perineal tear with merging of vaginal and anal

orifice, details mentioned under column No.17 & 21. Dried

blood and faecal stains over genital and perineal region.”

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

“1. Multiple abrasions over right zygomatic region of

sizes ranging 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

exposing labial fat with clean cut margins seen

periorally without blood infiltration (post mortem in

nature).

6. Lacerated wound over chin, midline of size 3 cm x 3

cm muscle deep with tissue missing, margins

irregular and blood infiltrated, reddish.

7. Bite mark over and around right nipple over a region

of size 5 cm x 5 cm, margins contused, reddish.

8. Bite mark over and around left nipple over a region

of size 3 cm x 3 cm, margins contused, reddish.

9 Bite mark over abdomen, 1 cm right at the level of

umbilicus over a region of size 4 cm x 3.5 cm,

margins contused, reddish.

10. Bite mark over abdomen in the midline, 5 cm below

the umbilicus, over a region of size 3 cm x 3 cm,

margins contused, reddish.

11. Bite mark over public region in the midline, 9cm

below umbilicus, over a region of size 4 cm x 3.5 cm,

margins contused, reddish.

12. Bite mark over lateral aspect of right shoulder, over

a region of size 5 cm x 3 cm, margins contused,

reddish.

13. Bite mark over right buttock, over a region of size 3

cm x 3 cm, margins contused, reddish.

14. Bite mark over right buttock, over a region of size 3

cm x 3 cm, margins contused, reddish, separated

from injury No.13 by 1.5 cm.

15. Bite mark over right buttock, over a region of size 3

cm x 2.5 cm, margins contused, reddish separated

from injury No.14 by 1 cm.

16. Bite mark over left buttock, over a region of size 3.7

cm x 3 cm, margins contused, reddish.

17. Multiple lacerations over vaginal and anal region

merging vaginal and anal orifice (perineal tear at 3,

6 and 9 O’clock positions), margins irregular, blood

infiltrated, reddish.

18. Abrasion over left knee joint region, on anterior

aspect, of size 1 cm x 0.5 cm, reddish.

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

rough surface.

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

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

by bite).

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 corresponding

observations in Column No.21 were:-

“Evidence of tear in the posterior vaginal wall with merging of

vaginal and anal canal (perineal tear). Surface ragged, margins

irregular, blood infiltrated and reddish, extending and tearing

(perforating) the rectum, corresponding to injury No.17 under

column no.17.”

On the effect of the injuries and the cause of death, the Report stated: -

“(a) Whether the ante-mortem

injuries found on the dead : Yes

body were sufficient in the

ordinary course of nature

to cause death.

(b) If yes, which of the injuries

were individually sufficient Injury No.17 under

in the ordinary course of column No.17 with its

nature of cause death. corresponding internal

collectively are sufficient in under column No.21

the ordinary course of with its consequences.

nature to cause death.

Opinion as to the cause of death : “Shock and haemorrhage

following perineal tear

With multiple injuries”.

7. The clothes of the victim as well as that of the Appellant were sent

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.

Description 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 cm in diameter on upper portion.

-- Exhibit 2 has moderate number of blood stains,

ranging from 0.1 to 2 cm in diameter mostly on front

portion.

-- Exhibit No.5 has moderate number of blood stains,

ranging from 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.”

Exhibits 1 and 5 referred to in the Report were clothes of the victim

while Exhibits 2, 3 and 4 were that of the Appellant.

7.1 The relevant material including swabs taken from the body of 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 on ex.1 Jersey of deceased, ex.2 Full pant of

accused, ex.5 full pant of deceased in Bn-677/13, ex.2

Vaginal swab, ex.3 Vaginal smear slide, ex.4 Cervical

swab, ex.5 Cervical smear slide, ex.6 Anal swab, ex.7 Anal

smear slide, ex.8 Skin and tissue, ex.12 Swab from bite site

in Bn-678/13 are identical and from one and the same

source of female origin and matched with the maternal and

paternal 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 punishable under

Sections 376(1)(2)(f)(m), 376A, 302 of IPC and under Section 6 of the

POCSO Act. The Prosecution examined 13 witnesses and produced the

relevant material in support of its case.

8.1 PW1, the father of the victim proved the First Information Report

and also stated about the examination of the victim by PW6 Dr. Md. Jafar.

PW2, the grandfather of the victim narrated how the Appellant had taken the

victim along with him. It was stated:-

“He told me that father of the victim had come from work

and he told him to bring the victim. I told him that the

victim’s father was yet to come and told him not to take the

victim with him. But he did not listen me and took away the

victim. Thereafter myself and my wife went to the house of

complainant and asked him whether the victim was brought

to him by accused and he told me that the victim was not

brought to him. Therefore myself, complainant and

Shrawan took search of the victim. We went towards water

tank. One Vikas Masram on inquiry told that he saw the

accused with the victim going towards Anganwadi.

Therefore, we went towards Anganwadi. At that time the

construction of Anganwadi was incomplete and we saw that

the victim and accused both were lying in the premises of

Anganwadi. Jins pant of the victim was lying aside and T

Shirt was on her person. We saw that she had 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 brought before

him, she was already dead and had found wounds and bites on her body.

PW7 Dr. Ulhas Digambar Lingawar, deposed about medical examination of

the Appellant and opinion Exh.46.

8.3 PW10 Dr. Sachin Janbaji Gadge, Assistant Professor, Department of

Forensic Medicine, Vasantrao Naik Government Medical College,

Yavatmal proved the Post Mortem Report and stated about injury No.5 as

under: -

“7. Injury No.5 can be caused by sharp edged teeth. No

fracture on external examination or palpation. All injuries

are ante-mortem and fresh. Except, injury No.5 under

column No.17 (post-mortem).”

The nature of injury No.17 and the steps taken after the post mortem

were indicated thus:-

“12. Injury No.17 under column No.17 with its

corresponding internal injury mentioned under column

No.21 with its consequences is sufficient to cause death in

ordinary course of nature. Accordingly, the viscera was

preserved. Vaginal, cervical and anal swabs kept for semen

analysis. Swabs from bite site and control site kept for

detection of saliva and comparison. Blood soaked gauzed

piece kept for D.N.A. Analysis and comparison. Skin and

tissue kept for D.N.A. Analysis. Hairs kept for comparison,

if any. Blood soaked gauzed piece kept for blood group.

Nail clippings kept for detection of foreign blood group.

Skin and tissues kept for histopathological examination.

13. Above mentioned material packed, sealed, labled and

handed over to N.P.C. Ganesh, B.No.215 of P.S. Parwa.

The receipt of P.C. Ganesh is on Ex.31 on the reverse of

Ex.35. It bears signature of Dr. R.R. Khetre on the top of

Ex.35 with endorsement. I know his signature. The

endorsement is at Ex.52.

14. My opinion as to cause of death is shock and

haemorrhage following perineal tear with multiple injuries.

There was forceful sexual assault on the child. The injury

No.17 was caused by forceful insertion of penis. The postmortem report bears my signature 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 not mentioned

in the Post Mortem Report that injury No.5 was caused by sharp edged teeth.

The relevant part of the cross-examination was as under:-

“It is true that the column no.17 note no.2 in respect of

injury no.5 it 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 that injury No.5 of column no.17 was

caused by sharp edged teeth. It is not true that the injury by

teeth bite cannot produce clean cut margin.”

8.4 Chandrakant Narayan Bijapwar, a grocery shop owner was

examined as PW9. He stated that at about 7.00 p.m. on 11.02.2013 the Accused

had come to his shop and had purchased Parle Biscuits and Laxminarayan

Chiwada but he could not remember who was with the Accused at that time.

The witness was, therefore, declared hostile.

8.5 The Investigating Officer A.P.I. Pankaj Vanjari was examined as

PW13 and deposed to the steps undertaken during investigation. He deposed:-

“On 20-2-2013 I had sent the letter to J.M.F.C. Ghatanji for

recording the statements u/s 164 of Cr.P.C. of the

grandfather and 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 under

Section 164 of the Code5

. However, the record is not clear whether Vikas

Meshram was examined under Section 164, and, if not, the reason for such

5 The Code of Criminal Procedure, 1973

non-examination. In cross-examination of this witness, a suggestion made

to him was replied as under:-

“P.W.1 had stated that people beat the accused by fist

and kick blows. It is mentioned in his statement:”

8.6 Vikas Meshram was not examined in the trial as a witness. Similarly,

Baban Sambhaji Meshram, the father of the Appellant (referred to in the

FIR); and Shrawan and Meshram (referred to in the deposition of PW2) were

not examined as witnesses.

9. In the examination of the Appellant under Section 313 of the Code,

when the evidence of PW7 Dr. Ulhas Digambar Lingawar was put to him,

the Appellant stated that the evidence was false. Similar was his response,

when the evidence that the blood of the victim was found on 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

witnesses are deposing against you?

Ans. : When I had gone to the house of deceased girl,

her parents had a talk regarding the giving of

human sacrifice of the deceased to find out the

hidden treasure and after hearing it when I told

them that if they do such act then I will lodge

the report against them but they had lodged the

false report against me and deposed falsely.”

10. The Trial Court found that the following circumstances established

the guilt of the Appellant.

“(i) The first circumstance is that the accused took away

the deceased victim child from the lap of P.W.2, fatherin-law of the complainant i.e. victim’s father by saying

that the father of the deceased victim told him to bring

the deceased victim to him.

(ii) The second circumstance is that the deceased victim

child was in the custody of the accused since the time

he took her away from P.W.2.

(iii) The third circumstance is that the deceased victim child

was found lying isolated place where the construction

of Anganwadi building was in progress and the

accused was also found lying on the same spot near the

deceased victim child.

(iv) The fourth circumstance is that as per report Exh. 44

issued by P.W.7 Dr. Lingawar, the injury of abrasion

on tip of glance of penis was found on examination of

the accused and he opined that the sign of sexual

intercourse within 24 hours was present and it is due to

sexual intercourse.

(v) The fifth circumstance is that the pant of deceased

victim child, pair of chappal of accused, pieces of flesh

were seized from the spot of incident as per Exh.20.

(vi) The sixth circumstance is that the pant, shirt and

knicker with the stains of semen of the accused were

seized as per seizure 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 was found to be of the deceased victim child

and it shows the perfect matching with the blood of the

deceased victim.

(viii)The eighth circumstance is that as per postmortem

report Exh.53 and opinion of Dr. Gadge who had

conducted autopsy on the dead body of victim child,

the injury No.17 was caused by forceful insertion of

the penis as there was forceful sexual assault on the

deceased victim child and the death of victim child was

caused due to perineal tear and multiple injuries and

the injuries were caused due to nibbling by teeth and

bite marks were found over the parts of the body of

deceased victim child. Even the pieces of flesh were

also found on the spot of incident which shows the

brutality in commission of crime.”

10.1 Finding the Appellant guilty of the offences with which he was

charged, the Trial Court in its judgment dated 14.8.2015, stated:-

“40. After declaring the accused guilty for the offences

punishable under Section 376(1)(2)(f)(i)(m) of Indian Penal

Code, under Section 376-A of Indian Penal Code, under

Section 302 of Indian Penal Code, and under Section 6 of

Protection of Children from Sexual Offences Act, I take a

pause to hear the accused on the point of sentence.”

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

“42. The learned Public Prosecutor has submitted that the

deceased victim was helpless child aged two years and the

accused is related to her. The accused had committed rape

and murder after taking away the victim child from her

grandfather and as per the injuries described in P.M. report

by P.W.10 Dr. Gadge, the accused had committed inhuman

act because the victim child had sustained injury of perineal

tear and injuries of bite marks and even the lips were

removed and as per the injury No.17 the injury of perineal

tear was caused by forceful sexual assault on the deceased

victim child by the accused. Therefore, there are

aggravating circumstances and the crime was well planned.

It is further submitted that there is no chance of reformation

of the accused. The learned Public Prosecutor has further

submitted that the case falls under the category of ‘rarest of

rare case’ for awarding death sentence. In support of his

submission he has placed reliance on the observations made

by the Hon’ble Apex Court in the case of Vasanta Sampat

Dupare vs. State of Maharashtra, reported in 2015 Cri. L.J.

7746

, in which the Hon’ble Apex Court has observed that,

“The gullibility and vulnerability of the four

years girl, who could not have nurtured any idea

about the maladroitly designed biological

desires of this nature, went with the uncle who

extinguished her life spark. The barbaric act of

the appellant does not remotely show any

concern for the precious life of a young minor

child who had really not seen life. The

criminality of the conduct of the appellant is not

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

only depraved and debased, but can have a

menacing effect on the society”.

It is also held by the Hon’ble Apex Court in the

cited ruling that,

“A helpless and defenceless child gets raped and

murdered because of the acquaintance of the

appellant with the people of the society. This is

not only betrayal of an individual trust but

destruction and devastation of social trust. It is

perversity in its enormity. It irrefragably invites

the extreme abhorrence and indignation of the

collective. It is an anthema to the social balance.

It meets the test of rarest of rare case and

therefore, death sentence is affirmed.”

43. The learned Public Prosecutor has further submitted that

the prosecution case as per the ruling cited supra in which

the death sentence was awarded was also based on

circumstantial evidence and it was considered in the

category of rarest of rare cases.

44. Having regard to the facts and circumstances and

evidence on record, I am inclined to accept the argument

advanced by the learned Public Prosecutor because in the

facts of the ruling cited supra [Wakkar and another vs. State

of U.P.7

] by the learned defence counsel, there were two

accused and it was not possible to discern and arrive at any

definite conclusion as to the role played by each of the

accused. Here in the present case there is only one accused

who committed rape and murder of the helpless and

innocent child aged two years, therefore, ruling [Vasanta

Dupare vs. State of Maharashtra6

] is applicable to the

present case.

45. It is necessary to mention that brutality in committing

rape on the deceased victim child aged two years and taking

away the life of deceased victim child is required to be taken

into consideration for coming to the conclusion that the case

is rarest of rare one warranting imposition of death

sentence.

46. The deceased victim female child aged two years only

was innocent and helpless child. Having regard to the facts

and circumstances of the crime and considering the relevant

(2011) 3 SCC 306

factors, sentence of life imprisonment appears to be

inadequate punishment and I am of the opinion that this is

the case which falls in the category of rarest or rare cases

warranting the imposition of death sentence for the offence

punishable under Section 376-A of Indian Penal Code and

for offence punishable under Section 302 of Indian Penal

Code.”

10.3 The Trial Court thus, by its order passed on the same day awarded

Death Sentence to the Appellant on two counts, i.e. under Section 302 of IPC

and under Section 376-A of IPC; Rigorous Imprisonment 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 Sentence was subject to confirmation by the High

Court.

11. The matter concerning confirmation of Death Sentence and the

substantive appeal by the Appellant against his conviction were dealt with

together and by its judgment and order presently under appeal, the

conviction and sentence passed by the Trial Court were affirmed by the High

Court. It was observed by the High Court:

“37. By applying yardstick set by the Apex Court in the

case of Bachan Singh v. State of Punjab8

and Machhi Singh

and others v. State of Punjab9

(cited supra) and the

observations of this Court in the matter of Rakesh Kamble

if the present matter is considered, in our opinion, in the

guideline of aggravating circumstances, there is a mention

of clause (b) which deal with the murder which involves

exceptional depravity. In the light of the clause, if the

present matter is seen, the record reveals that the victim is

a child of two and half years of age. The victim was

(1980) 2 SCC 684

(1983) 3 SCC 470

subjected to a forceful sexual exploitation. The medical

evidence shows that the death is caused due to the forceful

intercourse. In our opinion, the present case also covers

clause (a) of “aggravating circumstances” wherein it is

referred that if a murder is committed after previous

planning and involves extreme brutality. In the present

matter, a child was taken from the custody of the

grandfather and in spite of his resistance, a child was

subjected to sexual violence and then was done to death. In

our opinion, the act of the appellant/accused falls in clauses

(a) and (b) of the “aggravating circumstances”. We would

also take into consideration the mitigating circumstances

referred to in the judgment of the Apex Court in the case of

Bachan Singh v. State of Punjab (cited supra). In our

opinion, the only mitigating circumstance on which the

appellant/accused seeks benefit of clause (2) i.e. the

accused is a young boy. Even though the said mitigating

circumstance of being of young age is available to the

appellant/accused while balancing the aggravating and

mitigating factors, we are of the opinion that the said

mitigating circumstance would not be of any help to the

appellant/accused.

… … …

41. In the present case also, the accused is the maternal

uncle of the victim child. The Apex Court recently in the

matter of Purushottam Dashrath Borate and another v. State

of Maharashtra10 (cited supra), wherein the victim deceased

who was serving in a private company and was subjected to

rape and murder at the hands of the security guard and was

awarded death sentence on consideration of the submission

that the appellant/accused is a person of young age,

observed that such compassionate grounds are present in

most of the cases and are not relevant for interference in

awarding death sentence. The Apex Court further observed

that the principle that when the offence is gruesome and was

committed in a calculated and diabolical manner, the age of

the accused may not be a relevant factor.

“15. In our opinion, the measure of punishment

in a given case must depend upon the atrocity

of the crime; the conduct of the criminal and the

defenceless and unprotected state of the victim.

Imposition of appropriate punishment is the

manner in which the Courts respond to the

society’s cry for justice against the criminals.

(2015) 6 SCC 652

Justice demands that Courts should impose

punishment befitting the crime so that the

Courts reflect public abhorrence of the crime.

The Courts must not only keep in view the

rights of the criminal but also the rights of the

victim of crime and the society at large while

considering imposition of appropriate

punishment.”

The Apex Court also made it clear that lack of criminal

antecedents also cannot be considered as mitigating

circumstances, particularly taking into consideration, the

nature of heinous offence and cold and calculated manner

in which it was committed by the accused persons.

42. The Apex Court in the matter of Vasanta Sampat

Dupare v. State of Maharashtra6

(cited supra), wherein the

victim was a girl of four years of age and the

appellant/accused, a neighbour luring the victim for giving

her chocolate, raped her and done her to death by hit of

stones. The Apex Court on the backdrop of the medical

evidence, namely the victim was subjected to forceful

sexual intercourse, the deceased was last seen with the

accused and 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 rape committed in a brutal manner, but

murder was also committed in a barbaric

manner. The rape of a minor girl child is

nothing but a monstrous burial of her dignity in

the darkness. It is a crime against the holy body

of a girl child and the soul of society and such a

crime is aggravated by the manner in which it

has been committed. The nature of the crime

and the manner in which 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 an inhuman

manner. Indubitably, these go a long way to

establish the aggravating circumstances.

61. We are absolutely conscious that

mitigating circumstances are to be taken into

consideration. The learned Counsel for the

appellant pointing out the mitigating

circumstances would submit that the appellant

is in his mid

-fifties and there is possibility of his

reformation. Be it noted, the appellant was

aged about forty seven years at the time of

commission of the crime. As is noticeable,

there has been no remorse on the part of

appellant. There are cases when this Court has

commuted the death sentence to life finding that

the accused has expressed remorse or the crime

was not premeditated. But the obtaining factual

matrix when unfolded stage by stage would

show the premeditation, the proclivity and the

rapacious desire. The learned Counsel would

submit that the appellant had no criminal

antecedents but we find that he was a history

sheeter and had a number of cases pending

against him. That alone may not be sufficient.

The appalling cruelty shown by him to the

minor girl child is extremely shocking and it gets accentuated, when his age is taken into

consideration. It was not committed under any

mental stress or emotional disturbance and it is

difficult to comprehend that he would not

commit such acts and would be reformed or

rehabilitated. As the circumstances would

graphically depict, he would remain a menace

to society, for a defenceless child has become

his prey. In our considered opinion, there are

no mitigating circumstances.

62. As we perceive, this case deserves to fall

in the category of the rarest of rare cases. It is

inconceivable from the perspective of the

society that a married man aged about two

scores and seven makes a four years minor

innocent girl child the prey of his lust and

deliberately causes her death. A helpless and

defenceless child gets raped and murdered

because of the acquaintance of the appellant

with the people of the society. This is not only

betrayal of an individual trust but destruction

and devastation of social trust. It is perversity

in its enormity. It irrefragably invites the

ext

reme abhorrence and indignation of the

collective. It is an anathema to the social

balance. In our view, it meets the

test of the

rarest of the rare case and we unhesitatingly so

hold.”

With this view, the High Court upheld the conviction and sentence

as recorded by the Trial Court and confirmed the Death Sentence.

12. As the Death Sentence and life imprisonment have been awarded on

two counts each, the statutory changes that the concerned provisions of the

IPC and POCSO Act have undergone may briefly be adverted to:-

A. Before 03.02.2013, the relevant portions of Sections 375, 376 and

376A of IPC were as under:-

“375. Rape.–A man is said to commit “rape” who, except

in the case hereinafter excepted, has sexual intercourse with

a woman under circumstances falling under any of the six

folloing descriptions:-

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 cases

provided for by sub-section (2), commits rape shall be

punished with imprisonment of either description for a term

which shall not be less than seven years but which may for

life or for a term which may extend to ten years and shall

also be liable to fine unless the woman raped is his own wife

and is not under twelve years of age, in which cases, he shall

be punished with imprisonment of either description for a

term which may extend to two years or with fine or with

both:

Provided that the court may, for adequate and special

reasons to be mentioned in the judgement, impose a

sentence of imprisonment for a term of less than seven

years.

(2) Whoever,-

(a) …..

(b) …..

(d) …..

(e) …..

(f) commits rape on a woman when she is under

twelve years of age; or

(g) …..

shall be punished with rigorous imprisonment for a

term which shall not be less than ten years but which may

be for life and shall also be liable to fine:

Provided that the Court may, for adequate and special

reasons to be mentioned in the judgement, impose a

sentence of imprisonment of either description for a term of

less than ten years.

Explanation 1.- …..

Explanation 2.- …..

Explanation 3.- …..

“376A. Intercourse by a man with his wife during

separation.-whoever has sexual intercourse with his own

wife, who is living separately from him under a decree of

separation or under any custom or usage without her

consent shall be punished with imprisonment of either

description for a term which may extend to 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 was promulgated

by the President of India. Section 8 of the Ordinance inter alia substituted

Sections 375, 376 and 376A of IPC; the relevant text of the substituted

provisions being:-

“375. A 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 do so with him or any other person; or

(b) …..

(d) …..

(e) touches the vagina, penis, anus or breast of the person

or makes the person touch the vagina, penis, anus or breast

of that person or any other person,

except where such penetration or touching is carried out for

proper hygienic or medical purposes under the

circumstances falling under any of the following seven

descriptions:-

First-Against the other person’s will.

Secondly.- Without the other person’s consent.

Thirdly.- …..

Fourthly.- …..

Fifthly.-…..

Sixthly.-With or without the other person’s consent, when

such other 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 subsection (2), commits sexual assault, shall be punished with

rigorous imprisonment of either description for a term

which shall not be less than seven years but which may

extend to imprisonment for life, and shall also be liable to

fine.

(2) whoever,-

(a) …..

(i) …..

(ii) …..

(iii) …..

(b) …..

(d) …..

(e) …..

(f) being a relative, guardian or teacher of, or a person

in a position of trust or authority towards, the person

assaulted, commits sexual assault on such person; or

(g) …..

(h) commits sexual assault on a person when such

person is under eighteen years of age; or

(i) …..

(j) …..

(k) …..

(l) while committing sexual assault causes grievous

bodily harm or maims or disfigures or endangers the

life of a person; or

(m) …..

shall be punished with rigorous imprisonment for a

term which shall not be less than ten years but which may

extend to imprisonment for life, and shall also be liable to

fine.

Explanation 1.- …..

Explanation 2.- …..

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

course of such commission inflicts an injury which causes

the death of the person or cause the person to be in a

persistent vegetative state, shall be punished with rigorous

imprisonment for a term which shall not be less than twenty

years, but which may extend to imprisonment for life,

which shall mean the remainder of that person’s natural life,

or with death.”

C) The Criminal Law (Amendment) Act, 2013 (No.13 of 2013),

hereinafter referred to as the Amendment Act received the assent of the

President and was published on 02.04.2013 but was given retrospective

effect from 03.02.2013. Section 9 of the Amendment Act inter alia

substituted Sections 375, 376 and 376A of IPC as under:-

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

(a) penetrates his penis, to any extent, into the vagina,

mouth, urethra or anus of a woman or makes her to do so

with him or any other person; or

(b) …..

(d) …..

under the circumstances falling under any of the

following seven descriptions: -

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- …..

Fourthly.-…..

Fifthly. …..

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

eighteen years of age.

Seventhly.- …..

Explanation 1……

Explanation 2……

Exception 1……

Exception 2…..

376. (1) Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous

imprisonment of either description for a term which shall

not be less than seven years, but which may extend to

imprisonment for life, and shall also be liable to fine.

(2) Whoever,-

(a) …..

(b) …..

(d) …..

(e) …..

(f) being a relative, guardian or teacher of, or a person in

a position of trust or authority towards the woman, commits

rape on such woman; or

(g) …..

(h) …..

(i) commits rape on a woman when she is under sixteen

years of age; or

(j) …..

(k) …..

(l) …..

(m) while committing rape causes grievous bodily harm or

maims or disfigures or endangers the life of a woman; or

(n) …..

shall be punished with rigorous imprisonment for a

term which shall not be less than ten years, but which may

extend to imprisonment for life, which shall mean

imprisonment for the remainder of that person’s natural life,

and shall also be liable to fine.

Explanation.- …..

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

course of such commission inflicts an injury which causes

the death of the woman or causes the woman to be in a

persistent vegetative state, shall be punished with rigorous

imprisonment for a term which shall not be less than twenty

years, but which may extend to imprisonment for life,

which shall mean imprisonment for the remainder of that

person’s natural life, or with death.”

While repealing the Ordinance, Section 30 of the Amendment Act

states as under:-

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

is hereby repealed.

(2) Notwithstanding such repeal, anything done or any

action taken under the Indian Penal Code, the Code of

Criminal Procedure, 1973 and the Indian Evidence Act,

1872, as amended by the said Ordinance, shall be deemed

to have been done or taken under the corresponding

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 Section 376(2) of

IPC and added sub-section (3) after Section 376(2) as well as inserted

Section 376AB as under:

“376 … … …

(3) Whoever, commits rape on a woman under sixteen years

of age shall be punished with rigorous imprisonment for a

term which shall not be less than twenty years, but which

may extend to imprisonment for life, which shall mean

imprisonment for the remainder of that person’s natural life,

and shall also be liable to fine:

… … …

“376AB- Punishment for rape on woman under twelve

years of age- Whoever, commits rape on a woman under

twelve years of age shall be punished with rigorous

imprisonment for a term which shall not be less than twenty

years, but which may extend to imprisonment for life,

which shall mean imprisonment for the remainder of that

person’s natural life, and with fine or with death:

… … …”

Since the offence in the instant case was committed well before

21.04.2018, we are not called upon to consider the effect of Act 22 of 2018

but the provisions are noted for the sake of completeness.

E. Sections 5 and 6 of the POCSO Act, at the time when the offence

was committed in the instant case, provided: -

“5: Aggravated penetrative sexual assaulta) …..

b) …..

c) …..

d) ……

e) …..

f) …..

g) …..

h) ….

i) …..

j) Whoever commits penetrative sexual assault on a

child, which-

(i) Physically incapacitates the child or causes the

child to become mentally ill as defined under

clause (b) of section 2 of the mental health Act,

1987 (14 of 1987) or causes impairment of any

kind so as to render the child unable to perform

regular tasks, temporarily or permanently;

(ii) In the case of female child, makes the child

pregnant as a consequence of sexual assault;

(iii) Inflicts the child with Human

Immunodeficiency Virus or any other lifethreatening disease or infection which may

either temporarily or permanently impair the

child by rendering him physically

incapacitated, or mentally ill to perform regular

tasks;

k) …..

l) …..

m) Whoever commits penetrative sexual assault on a child

below twelve years; or

n) …..

o) …..

p) …..

q) …..

r) …..

s) …..

t) …..

u) …..

“6. Punishment for aggravated penetrative sexual assault. –

Whoever, commits aggravated penetrative sexual assault,

shall be punished with rigorous imprisonment for a term

which shall not be less than ten years but which may extend

to imprisonment for 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 on

16.08.2019, sub-Clause (iv) was inserted in Clause (j) of Section 5 as

under:-

“(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

shall be punished with rigorous imprisonment for a term

which shall not be less than twenty years, but which may

extend to imprisonment for life, which shall mean

imprisonment for the remainder of natural life of that

person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and

reasonable and paid to the victim to meet the medical

expenses and rehabilitation of such victim.”

13. If the abovementioned provisions of IPC are considered in three

compartments, that is to say,

(A) The situation obtaining before 03.02.2013

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

following features emerge: -

(i) The offence under Section 375, as is clear from the

definition of relevant provision in compartment (A),

could be committed against a woman. The situation

was sought to be changed and made gender neutral in

compartment (B). However, the earlier position now

stands restored as a result of provisions in

compartment (C)

(ii) Before 03.02.2013 the sentence for an offence under

Section 376(1) could not be less than seven years but

the maximum sentence could be life imprisonment;

and for an offence under Section 376(2) the minimum

sentence could not be less than ten years while the

maximum sentence could be imprisonment for life.

Section 376A dealt with cases where a man committed

non-consensual sexual intercourse with his wife in

certain situations.

(iii) As a result of the Ordinance, the sentences for offences

under Sections 376(1) and 376(2) were retained in the

same fashion. However, a new provision in the form

of Section 376A was incorporated under which, if

while committing an offence punishable under sub-

section (1) or sub-section (2) of Section 376, a person

“inflicts an injury which causes the death” of the

victim, the accused could be punished with rigorous

imprisonment for a term “which shall not be less than

20 years but which may extend to imprisonment for

life, which shall mean the remainder of that person’s

natural life or with death”. Thus, for the first time,

Death Sentence could be imposed if a fatal injury was

caused during the commission of offence under subsection (1) or (2) of Section 376.

(iv) Though the provisions of the Amendment Act restored

the original non gender-neutral position vis-à-vis the

victim, it made certain changes in sub-section (2) of

Section 376. Now, the punishment for the offence

could be rigorous imprisonment for not less than ten

years which could extend to imprisonment for life,

“which shall mean imprisonment for the remainder of

that person’s natural life”. It was, thus, statutorily

made clear that the imprisonment for life would mean

till the last breath of that person’s natural life.

(V) Similarly, by virtue of the Amendment Act, for the

offence under Section 376A, the punishment could not

be less than 20 years which may extend to

imprisonment for life which shall mean imprisonment

for the remainder of that person’s natural life, or with

death.

14. In the instant case, the offence was committed on 11.02.2013 when

the provisions of the Ordinance were in force. However, the Amendment

Act having been given retrospective effect from 03.02.2013, the question

arises whether imposition of life sentence for the offence under Section

376(2) could “mean imprisonment for the remainder of that person’s natural

life”.

In the present case, since the victim was about two and half years

of age at the time of incident and since it was the Ordinance which was

holding the field, going by the provisions of the Ordinance, Clauses (f), (h)

and (l) of Section 376(2) would get attracted. The comparable provisions

of Section 376(2) as amended by the Amendment Act would be, Clauses

(f), (i) and (m) respectively. As the substantive penal provisions under the

Clauses (f), (h) and (l) as inserted by the Ordinance and Clauses (f), (i) and

(m) as inserted by the Amendment Act are identical, no difficulty on that

count is presented. But the sentence prescribed by Section 376(2) as

amended by the Amendment Act, has now, for the first time provided that

the imprisonment for life “shall mean imprisonment for the remainder of

that person’s natural life”. This provision comes with retrospective effect

and in a situation where such prescription was not available on the statute

when the offence was committed, the question arises whether such ex-post

facto prescription would be consistent with the provisions of sub-Article

(1) of Article 20 of the Constitution.

15. An imposition of life sentence simpliciter does not put any restraints

on the power of the executive to grant remission and commutation in

exercise of its statutory power, subject of course to Section 433A of the

Code. But, a statutory prescription that it “shall mean the remainder of that

person’s life” will certainly restrain the executive from exercising any such

statutory power and to that extent the concerned provision definitely

prescribes a higher punishment ex-post facto. In the process, the protection

afforded by Article 20(1) of the Constitution would stand negated. We must,

therefore, declare that the punishment under Section 376(2) of the IPC in the

present case cannot come with stipulation that the life imprisonment “shall

mean the remainder of that person’s life”. Similar prescription in Section 6

of the POCSO Act, which came by way of amendment in 2019, would not

be applicable and the governing provision for punishment for the offence

under the POCSO Act must be taken to be the pre-amendment position as

noted hereinabove.

16. However, in so far as the situation covered by Section 376A of IPC

as amended by the Amendment Act is concerned, substantively identical

situation was dealt with by Section 376A as amended by the Ordinance and

the prescription of sentence in Section 376A by the Amendment Act is

identical to that prescribed by Section 376A as amended by the Ordinance.

Section 376A as amended by the Ordinance being gender neutral so far as

victim was concerned, naturally covered cases where a victim was a woman.

Thus, the ex-post facto effect given to Section 376A by the Amendment Act

from the day the Ordinance was promulgated, would not in way be

inconsistent with the provisions of 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 Appellant

submitted: -

A) While noting eight circumstances against the Appellant, certain

circumstances were ignored by the Courts below, namely:-

(i) Both the lips of the victim showed clean cut margins indicating

that the injuries were suffered by a weapon and not by a human bite.

Further, odontology report was not furnished to substantiate the

theory that the injuries could be by a human bite and by the

Appellant.

(ii) The vaginal, cervical, and anal swabs were sent for forensic

examination but none of these could be associated with the

Appellant.

These important facets pointing towards innocence of the Appellant

were completely disregarded.

B) Each of the circumstances found against the Appellant, was then

dealt with as under :-

(i) PWs 1 and 2 were not independent witnesses to prove the first

circumstance that the victim was taken away by the Appellant.

There were discrepancies in the statements of PWs 1 and 2. On the

other hand witnesses such as Shravan, Vitthal Ghodam and Vikas

Meshram were not examined at all. Even the wife of PW2 whose

presence was referred to in the statement of PW2 under Section 164

of the Code, was not examined.

(ii) The fact that the victim was always in the custody of the

Appellant since the time she was taken away from PW2, was not

proved. PW9 was examined to establish this circumstance but did

not support the prosecution. Moreover, Vikas Meshram who

allegedly saw the victim with the Appellant was also not examined.

(iii) The spot where the victim was found lying was not an isolated

place but was in the middle of the village surrounded by houses.

No independent witness was examined to corroborate the version

of PWs 1 and 2. Independent witnesses like Shravan, Vitthal

Ghodam and Vikas Meshram were not examined. The initial

noting in the form of GD entry 40/13 (which was referred to in the

FIR) mentioned that the Appellant took away the victim to the

jungle and killed her.

(iv) The Appellant was examined at the time of arrest but the

medical evidence in that behalf was not placed on record.

However, the prosecution chose to rely on the medical evidence

through the opinion of PW7 Dr. Lingawar.

(v) The spot panchnama was done at 8:30 a.m. next day i.e. more

than eight hours after the arrest of the Appellant. The chappals

found at the spot were not sent for any examination, nor was any

evidence led to show that they belonged to the Appellant. Though,

the pieces of flesh seized from the spot were sent for forensic

examination, there was nothing on record to show that the flesh was

of a human being and of the victim.

(vi) The FSL report did not find any semen on any of the articles

sent for examination and the finding rendered by the Courts below

in so far as 6th circumstance was thus erroneous.

(vii) There were discrepancies in the chain of custody of the

clothes referred to in the 7th circumstance. At the time of his arrest

no blood was noticed on the clothes of the Appellant. PW13, the

Investigating officer accepted that he “did not find any suspicious

thing” with the Appellant. Even when the Appellant was examined

by PW7 Dr. Ulhas Digambar Lingawar, no blood was detected.

The seizure report also did not disclose any presence of blood spots

on the clothes of the Appellant. The trousers of the Appellant were

in police custody from 12.02.2013 till 14.02.2013 and no malkhana

record or witnesses were produced.

It would, therefore, be highly unlikely that “moderate

number of blood stains ranging from 0.1 to 2cm mostly on front

portion” found in the FSL report could have been missed out at the

earlier stages. The evidence would therefore be unworthy of

reliance.

Further, there was a requisition for videography of the post

mortem and yet no video-graphs were placed on record, in the

absence of which the material sent for DNA examination could not

be relied upon.

(viii) The record certainly indicated that the victim was sexually

assaulted but the eighth circumstance did not by itself establish that

the Appellant was the author of crime.

C) The facts on record did not conclusively establish the guilt of the

Appellant. Since the case was based on circumstantial evidence, going by

the principles laid down by this Court, the case was not established 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 same day when the

conviction order was pronounced, there was non-compliance of

Section 235(2) of the Code and as laid down by this Court in

Allauddin Mian v. State of Bihar11, Malkiat Singh and others v.

State of Punjab12 and Ajay Pandit v. State of Maharashtra13, the

infraction on that count was sufficient to consider commutation of the

sentence 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 of Assam14, Sebastian @

Chevithiyan v. State of Kerala15, Purna Chandra Kusal v. State of

Orissa16 and Kalu Khan v. State of Rajasthan17, no death sentence be

awarded and the appropriate punishment could be life sentence.

III) Relying on the decisions of this Court in Ashok Debabarma @ Achak

Debbarma v. State of Tripura18, Sudam v. State of

Maharashtra19and Ravishankar alias Baba Vishwakarma vs. State

of Madhya Pradesh20

, it was submitted that even if the circumstances

on record were sufficient to record conviction against the Appellant,

there were gaps in the evidence and the benefit of “residual doubt”

ought to be extended in favour of the Appellant.

(1989) 3 SCC 5 para 10

(1991) 4 SCC 341 para 18

(2012) 8 SCC 43 para 47

(2007) 11 SCC 467 para 55

(2010) 1 SCC 58 para 17

(2011) 15 SCC 352 para 7

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

(2014) 4 SCC 747

(2019) 9 SCC 388

(2019) 9 SCC 689

IV) In terms of law laid down by this Court in Rajesh Kumar v. State

through Government of NCT of Delhi21

, the burden was on the

prosecution to rule out the possibility of reformation of the Appellant

and that as held in Mohinder Singh v. State of Punjab22

, the exclusion

of possibility of reformation could only be on the basis of evidence

led by the prosecution.

V) The Appellant completed Bachelors Preparatory programme (BPP)

from Indira Gandhi National Open University in 2017 while in prison

and is presently pursuing Bachelors Degree course in Arts.

VI) The Appellant was about 21 years of age at the time of incident and

as held by this Court in Bachan Singh v. State of Punjab8

Rameshbhai Chandubhai Rathod (2) v. State of Gujarat23, Amit v.

State of U.P.24 and Sunil v. State of M.P.25

, the young age of the

Appellant at the time of incident is a factor in his favour.

VII) The socio-economic condition of the Appellant showed that he was a

labourer and belonged to Scheduled Tribes which again would be a

factor in his favour as held by this Court in Sunil Damodar Gaikwad

v. State of Maharashtra26

(2011) 13 SCC 706 paras 72 to 74

(2013) 3 SCC 294, paras 22, 23

(2011) 2 SCC 764 paras 8 and 10

(2012) 4 SCC 107 para 22

(2017) 4 SCC 393 para 12

(2014) 1 SCC 129 para 20

VIII) The family of the Appellant being in touch with the him, there is a

strong probability of rehabilitation as observed by this Court in

Mohinder Singh v. State of Punjab22

IX) Further, as there were no criminal antecedents as has been ruled by

this Court in Surendra Pal Shivbalak Pal v. State of Gujarat27

Mahesh Dhanaji Shinde v. State of Maharashtra.

28, Santosh Kumar

Singh v. State of M.P.29 and Shyam Singh @ Bhima v. State of

Madhya Pradesh30

, due weightage ought to be given in favour of the

Appellant.

17.3 Mr. Sushil Karanjkar, learned Advocate for the State submitted that

all the aforesaid eight circumstances were individually established beyond

any doubt and they collectively formed a clear and consistent chain ruling

out every other hypothesis except the guilt of the Appellant. It was

submitted that as held by this Court in B. A. Umesh vs. Registrar General,

High Court of Karnataka31 and subsequent cases, the mere fact that the

death sentence was pronounced on the same day when the conviction was

recorded, by itself would not be sufficient to commute the death sentence to

life imprisonment; and that the Appellant had sufficient opportunity to

(2005) 3 SCC 127 para 13

(2014) 4 SCC 292 paras 38 and 39

(2014) 12 SCC 650 para 30

(2017) 11 SCC 265 paras 6 and 8

(2017) 4 SCC 124

advance submissions on the issue of sentence which opportunity was availed

of. He also submitted that the circumstances having been established

beyond any shadow of doubt there was no room for any “residual doubt”.

In his submission, the factors that the crime in the instant case was gruesome

and diabolical, where two and a half year old girl was subjected to sexual

assault and the manner in which it was committed, were by themselves

weighty and sufficient to tilt the balance against the Appellant and that as

laid down by this Court in Vasanta Sampat Dupare v. State of

Maharashtra6

, in review arising therefrom (in Vasanta Sampat Dupare v.

State of Maharashtra32), and in Mukesh and Another v. State ( NCT of

Delhi) and Others33

, the extreme depravity and the barbaric manner in

which the crime was committed would clearly outweigh any mitigating

circumstance advanced on behalf of the Appellant.

18. We shall first consider the evidence on record to see whether the

guilt of the Appellant is conclusively established on the strength of the

material on record; and whether the circumstances on record form a clear

and consistent chain to rule out every other hypothesis except the guilt of

the Appellant. The law on the point is clear from the following observations

of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra34

32 (2017) 6 SCC 631

33 (2017) 6 SCC 1

(1984) 4 SCC 116

“153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against

an accused can be said to be fully established:

(1) the circumstances from which the conclusion

of guilt is to be drawn should be fully

established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may

be” established. There is not only a grammatical but a legal

distinction between “may be proved” and “must be or

should be proved” as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra35 where the

observations were made:

“Certainly, it is a primary principle that the accused

must be and not merely may be guilty before a court

can convict and the mental distance between ‘may

be’ and ‘must be’ is long and divides vague

conjectures from sure conclusions.”

(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.”

These principles have since then been followed consistently.

(1973) 2 SCC 793

18.1 According to the prosecution, on the day in question at about 7:30

p.m. when the victim was with her grandfather, on the pretext that the father

of the victim had asked the Appellant to bring the victim, the Appellant, who

was maternal uncle of the victim, took her away. This part of the evidence

is conclusively established through the testimony of PW2, the grandfather.

This version finds mention in the FIR which was recorded within few hours

of the incident and in 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 the prosecution

but the strength of the testimony of PW2 does not get diminished on any

count nor can it be said that his testimony loses its weight because the

witness was the grandfather of the victim. The version coming through this

witness is cogent, consistent and also figured in prompt reporting of the FIR.

We have, therefore, no hesitation in accepting that the first circumstance as

noted by the Trial Court stands conclusively established.

18.2 As deposed by PWs 1 and 2, the Appellant was found by the side

of the victim at the spot i.e. in the premises of Anganwadi. The victim was

having various injuries whereafter she was taken for medical attention.

Soon after the incident, the Appellant was also medically examined and

Report Exbt. 46 showed injury on his body. Even if PW9 had turned hostile

and some other witnesses were not examined, the fact that the victim was

always in the custody of Appellant till she was found at the spot alongside

the Appellant is quite clear. The proximity in terms of time and the

promptitude in reporting are crucial factors and the 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 medical

examination before PW 7 Dr. Ulhas Digambar Lingawar, who found injury

on private parts of the Appellant. The approximate time of said injury as

given in the opinion Exh.46 is consistent with the case of prosecution. The

submission however is that the Appellant was also examined by another

medical professional and that report was not placed on record. The

reference to the medical examination of the Appellant in terms of Section

53A of the Code was not to any other medical professional but to PW 7 Dr.

Lingawar. No explanation, not even a suggestion came from the Appellant

how there could be an injury on his body as noticed in Report Exh.46. Thus,

the 4th circumstance also stands fully established.

18.4 While considering the 5

th circumstance, it must be stated that as per

record, the chappals were not proved to be that of the Appellant and the

pieces of flesh found at the spot of incident were also not proved to be that

of a human being. To that extent, 5th circumstance was not proved at all.

However, the fact that the pant of the victim was found at the spot of

incident is well established on record, and the 5

th circumstance must be

taken to be proved only with respect to the recovery of the pant of the

victim.

18.5 There is nothing on record to show that the stains of semen found

on clothing referred to in 6th circumstance, were medically proved to be that

of, or could be associated with the Appellant. The 6th circumstance cannot

therefore be taken to be pointing against the Appellant.

18.6 In terms of Chemical Analyser’s Report Ext.54, the blood found on

the trousers of the Appellant was that of the victim. This fact is completely

established. The submission however, is:-

(a) Nothing suspicious was found by PW13 the Investigating

Officer with the Appellant at the time of his arrest; and

(b) PW7 Dr. Lingawar had not noticed any blood stains on the

trousers of the Appellant at the time of his medical examination;

state that the articles remained in proper custody and in sealed

condition.

The answer given by the Investigating Officer cannot be stretched

to say that there were no blood stains on his trousers at the time of arrest.

The medical opinion was obtained to consider whether there were any

injuries on the private parts of the Appellant and whether he was capable of

having sexual intercourse. The facts on record show that the articles were

sent for FSL examination at the earliest.

The Appellant was represented by a counsel of standing in the Trial

Court. The theory that the blood spots on the trousers of the Appellant were

subsequently planted was not even developed in the cross examination of

the concerned witnesses.

Given the quick succession of steps in investigation, including the

medical examination and seizure of the clothes of the Appellant, we do not

find any infirmity. We, therefore, accept that the 7th circumstance stands

fully established.

18.7 It is a matter of record that as per Post-Mortem report and medical

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 multiple lacerations

over vaginal and anal region; and merging of vaginal and anal orifices.

The 8th circumstance must therefore be taken to be proved fully

except to the extent that said circumstance makes reference to pieces of

flesh found at the spot of incident.

19. Do the circumstances established on record satisfy the requirements

spelt out in the decision of this Court in Sharad Birdhichand Sarda34 is the

next question for consideration.

The established circumstances show:-

a) The victim was in the custody of the Appellant, from the time

she was taken from her grandfather till she was found lying in

the premises of Anganwadi; where the Appellant was also found

lying next to her.

b) The victim, who was hale and hearty when she was taken by the

Appellant, had number of injuries on her body when she was

found next to the Appellant.

c) The injuries on the body of the victim show that she was abused

and sexually exploited.

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

e) Injury No.17, as described above, was so severe that there was

merging of vaginal and anal orifices.

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

g) The Appellant had an injury on his private parts corresponding

to the period when the victim was in his custody.

h) The Appellant was found to be capable of having sexual

intercourse.

i) The trousers of the Appellant had blood stains, the DNA profiles

of which, matched with that of the blood of the victim.

These circumstances at serial numbers a) to i) stand proved beyond

any doubt and by themselves constitute a conclusive and consistent chain

excluding every other hypothesis except the guilt of the Appellant.

20. We must at this stage deal with the submission of Ms. Mathur,

learned Senior Advocate about non-consideration of certain circumstances

by the Courts below.

It is true that the injuries on the lips of the victim showed that the

margins 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 be the

result of human bites. But the other injuries on the body of the victim were

definitely by human bites and as such the absence of clarity with regard to

the injuries on the lips does not render the case of the prosecution doubtful

in any manner.

Again, the absence of association of vaginal, cervical and anal

swabs with the Appellant does not in any way diminish the strength of

evidence against the Appellant.

21. The circumstances proved on record are not only conclusive in

nature but completely support the case of the prosecution and are consistent

with only one hypothesis and that is the guilt of the Appellant. They form

a chain, so complete, consistent and clear, that no room for doubt or ground

arises pointing towards innocence of the Appellant. It is, therefore,

established beyond any shadow of doubt that the Appellant committed the

acts of rape and sexual assault upon the victim and that injury no.17 was

the cause of death of the victim.

22. The Appellant is thus guilty of having committed offences

punishable under clauses (f), (i) and (m) of sub-section (2) of Section 376 of

IPC; and also, under clauses (j) and (m) of Section 5 read with Section 6 of

the POCSO Act, (as it stood before it was amended by Act 25 of 2019).

Since according to medical opinion, the death was because of injury No.17,

the Appellant is also guilty of having committed offence punishable under

Section 376A of IPC.

23. The injuries suffered by the victim were directly as a result of sexual

assault inflicted upon her. But the medical evidence does not disclose that

either before or after the commission of sexual assault, any other injury was

consciously caused with the intention to extinguish the life of the victim.

Injury No.17 which was the cause of death was suffered by the victim during

the course of commission of sexual assault upon her. The questions that

arise, therefore, are whether such an act on part of the Appellant comes

within the parameters of Sections 299 and 300 of IPC and whether he is

guilty of having committed culpable homicide amounting to murder.

24. According to clause fourthly under Section 300 of IPC, the offence

may come under the category of culpable homicide amounting to murder “if

the person committing the act knows that it is so imminently dangerous that

it must, in all probability, cause death or such bodily injury as is likely to

cause death, and commits such act without any excuse for incurring the risk

of causing death or such injury as aforesaid”.

The interplay between clauses of Sections 299 and 300 of the IPC

was considered by this Court in State of Andhra Pradesh vs. Rayavarapu

Punnayya and Another36 as under:-

“11. The principal question that falls to be considered in

this appeal is, whether the offence disclosed by the facts and

circumstances established 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 genus and “murder” its specie. All “murder” is “culpable

homicide” but not vice-versa. Speaking generally,

“culpable homicide” sans “special characteristics of

murder”, is “culpable homicide not amounting to murder”.

For the purpose of fixing punishment, proportionate to the

gravity of this generic offence, the Code practically

recognises three degrees of culpable homicide. The first is,

what may be called, “culpable homicide of the first degree”.

(1976) 4 SCC 382

This is the greatest form of culpable homicide, which is

defined in Section 300 as “murder”. The second may be

termed as “culpable homicide of the second degree”. This

is punishable under the first part of Section 304. Then, there

is “culpable homicide of the third degree”. This is the

lowest type of culpable homicide and the punishment

provided for it is, also, the lowest among the punishments

provided for the three grades. Culpable homicide of this

degree is punishable under the second part of Section 304.

13. The academic distinction between “murder” and

“culpable homicide not amounting to murder” has vexed

the courts for more than a century. The confusion is caused,

if courts losing sight of the true scope and meaning of the

terms used by the legislature in these sections, allow

themselves to be drawn into minutae abstractions. The

safest way of approach to the interpretation and application

of these provisions seems to be to keep in focus the

keywords used in the various clauses of Sections 299 and

300. The following comparative table will be helpful in

appreciating the 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 rea requisite under clause (2) is the knowledge

possessed by the offender regarding the particular victim

being in such a peculiar condition or state of health that the

internal harm caused to him is likely to be fatal,

notwithstanding the fact that such harm would not in the

ordinary way of nature be sufficient to cause death of a

person in normal health or condition. It is noteworthy that

the “intention to cause death” is not an essential

requirement of clause (2). Only the intention of causing the

bodily injury coupled with the offender’s knowledge of the

likelihood of such injury causing the death of the particular

victim, is sufficient to bring the killing within the ambit of

this clause. This aspect of clause (2) is borne out by

Illustration (b) appended to Section 300.

Section 299 Section 300

A person commits

culpable homicide if the

act by which the death

is caused is done —

Subject to certain exceptions

culpable homicide is murder

if the act by which the death is

caused is done —

INTENTION

(a)With the intention of

causing death; or

(1) With the intention of

causing death; or

(b) With the

intention of causing

such bodily injury as is

likely to cause death; or

(2) With the intention of

causing such bodily injury as

the offender knows to be likely

to cause the death of the

person to whom the harm is

caused; or

(3) With the intention of

causing bodily injury to any

person and the bodily injury

intended to be inflicted is

sufficient in the ordinary

course of nature to cause

death; or

KNOWLEDGE

(c)With the knowledge

that the act is likely to

cause death

(4) With the knowledge that

the act is so imminently

dangerous that it must in all

probability cause death or

such bodily injury as is likely

to cause death, and without

any excuse for incurring the

risk of causing death or such

injury as is mentioned above.

15. Clause (b) of Section 299 does not postulate any such

knowledge on the part of the offender. Instances of cases

falling under clause (2) of Section 300 can be where the

assailant causes death by a fist blow intentionally given

knowing that the victim is suffering from an enlarged liver,

or enlarged spleen or diseased heart and such blow is likely

to cause death of that particular person as a result of the

rupture of the liver, or spleen or the failure of the heart, as

the case may be. If the assailant had no such knowledge

about the disease or special frailty of the victim, nor an

intention to cause death or bodily injury sufficient in the

ordinary course of nature to cause death, the offence will

not be murder, even if the injury which caused the death,

was intentionally given.

16. In clause (3) of Section 300, instead of the words “likely

to cause death” occurring in the corresponding clause (b) of

Section 299, the words “sufficient in the ordinary course of

nature” have been used. Obviously, the distinction lies

between a bodily injury likely to cause death and a 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. The difference between

clause (b) of Section 299 and clause (3) of Section 300 is

one of the degree of probability of death resulting from the

intended bodily injury. To put it more broadly, it is the

degree of probability of death which determines whether a

culpable homicide is of the gravest, medium or the lowest

degree. The word “likely” in clause (b) of Section 299

conveys the sense of “probable” as distinguished from a

mere possibility. The words “bodily injury … sufficient in

the ordinary course of nature to cause death” mean that

death will be the “most probable” result of the injury,

having regard to the ordinary course of nature.

17. For cases to fall within clause (3), it is not necessary that

the offender intended to cause death, so long as the death

ensues from the intentional bodily injury or injuries

sufficient to cause death in the ordinary course of nature.

Rajwant v. State of Kerala37 is an apt illustration of this

point.

18. In Virsa Singh v. State of Punjab38 Vivian Bose, J.

speaking for this Court, explained the meaning and scope

of clause (3), thus (at p. 1500):

“The prosecution must prove the following

facts before it can bring a case under Section

300, ‘thirdly’. First, it must establish quite

objectively, that a bodily injury is present;

secondly the nature of the injury must be

proved. These are purely objective

investigations. It must be proved that there was

an intention to inflict that particular injury, that

is to say, that it was not accidental or

unintentional or that some other kind of injury

was intended. Once these three elements are

proved to be present, the enquiry proceeds

further, and fourthly it must be proved that the

injury of the type just described made up of the

three elements set out above was sufficient to

37 AIR 1966 SC 1874

38 AIR 1958 SC 465

cause death in the ordinary course of nature.

This part of the enquiry is purely objective and

inferential and has nothing to do with the

intention of the offender.”

19. Thus according to the rule laid down in Virsa Singh

case38 of even if the intention of accused was limited to the

infliction of a bodily injury sufficient to cause death in the

ordinary course of nature, and did not extend to the

intention of causing death, the offence would be “murder”.

Illustration (c) appended to Section 300 clearly brings out

this point.

20. Clause (c) of Section 299 and clause (4) of Section 300

both require knowledge of the probability of the act causing

death. It is not necessary for the purpose of this case to

dilate much on the distinction between these corresponding

clauses. It will be sufficient to say that clause (4) of Section

300 would be applicable where the knowledge of the

offender as to the probability of death of a person or persons

in general — as distinguished from a particular person or

persons — being caused from his imminently dangerous

act, approximates to a practical certainty. Such knowledge

on the part of the offender must be of the highest degree of

probability, the act having been committed by the offender

without any excuse for incurring the risk of causing death

or such injury as aforesaid.

21. From the above conspectus, it emerges that whenever a

court is confronted with the question whether the offence is

“murder” or “culpable homicide not amounting to murder”,

on the facts of a case, it will be convenient for it to approach

the problem in three stages. The question to be considered

at the first stage would be, whether the accused has done an

act by doing which he has caused the death of another.

Proof of such causal connection between the act of the

accused and the death, leads to the second stage for

considering whether that act of the accused amounts to

“culpable homicide” as defined in Section 299. If the

answer to this question is prima facie found in the

affirmative, the stage for considering the operation of

Section 300 of the Penal Code, is reached. This is the stage

at which the court should determine whether the facts

proved by the prosecution bring the case within the ambit

of any of the four clauses of the definition of “murder”

contained in Section 300. If the answer to this question is in

the negative the offence would be “culpable homicide not

amounting to murder”, punishable under the first or the

second part of Section 304, depending, respectively, on

whether the second or the third clause of Section 299 is

applicable. If this question is found in the positive, but the

case comes within any of the exceptions enumerated in

Section 300, the offence would still be “culpable homicide

not amounting to murder”, punishable under the first part of

Section 304, of the Penal Code.

22. The above are only broad guidelines and not cast-iron

imperatives. In most cases, their observance will facilitate

the task of the court. But sometimes the facts are so

intertwined and the second and the third stages so

telescoped into each other, that it may not be convenient to

give a separate treatment to the matters involved in the

second and third stages.”

25. We may now consider the cases where the death may not have been

intended but clause fourthly of Section 300 of IPC was applied to hold the

accused guilty of offence of culpable homicide amounting to murder.

A) In State of Madhya Pradesh vs. Ram Prasad39, a woman was

set afire by the accused after pouring kerosene oil on her. A bench of three

Judges of this Court dealt with the matter as under:-

“The question then arises, what was the offence which Ram

Prasad can be said to have committed? The offence of

causing injury by burning is a broad spectrum which runs

from s. 324 causing simple injury by burning through s. 326

namely, causing grievous 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 which is surprising enough,

because the burns were so extensive that they were certainly

grievous by all account. The High Court placed the offence

a little higher, namely, culpable homicide not amounting to

murder. We think that the matter goes a little further than

this. As death has been caused the question has to be

considered in the light of homicide to determine whether

the action of Ram Prasad falls within culpable homicide not

amounting to murder or the higher offence of murder itself.

(1968) 2 SCR 522

Here we see that death has actually been caused by the

criminal act; in other words, there has been homicide and

since it is not accidental or suicidal death, responsibility for

the homicide, in the absence of any exceptions or

extenuating circumstances, must be borne by the person

who caused it. The High Court has apparently stopped

short by holding that this was a case of culpable homicide

not amounting to murder. The question is whether the

offence falls in any of the clauses of s. 300 Indian Penal

Code. In this connection it is difficult to say that Ram

Prasad intended causing the death of Mst. Rajji although it

might well be the truth. That he set fire to her clothes after

pouring kerosene oil is a patent fact and therefore the matter

has to be viewed not only with regard to the firstly of s. 300,

but all the other clauses also. We do not wish to consider

the second and the third clauses, because the question then

would arise what was the extent of the injury which Ram

Prasad intended to cause or knew would be caused to Mst.

Rajji. That would be a matter of speculation. In our

opinion, this matter can be disposed of with reference to

clause fourthly of s. 300. That clause reads as follows :-

“. . . . .culpable homicide is murder. . . . . if the

person committing the act knows that is so

imminently dangerous that it must in all

probability, cause death or such bodily injury as

is likely to cause death, and commits such act

without any excuse for incurring the risk or

causing death or such injury as aforesaid.”

It is obvious that there was no excuse for Ram Prasad to

have taken the risk of causing the death or such bodily

injury as was likely to cause death. The question therefore

arises whether Ram Prasad knew that his act was so

imminently dangerous that it must in all probability cause

death or such bodily injury as is likely to cause death, so as

to bring the matter within the clause. Although clause

fourthly is usually invoked in those cases where there is no

intention to cause the death of any particular person (as the

illustration shows) the clause may on its terms be used in

those cases where there is such callousness towards the

result and the risk taken is such that it may be stated that the

person knows that the act is likely to cause death or such

bodily injury as is likely to cause death. In the present case,

Ram Prasad poured kerosene upon the clothes of Mst. Rajji

and set fire to those clothes. It is obvious that such fire

spreads rapidly and burns extensively. No special

knowledge is needed to know that one may cause death by

burning if he sets fire to the clothes of a person. Therefore,

it is obvious that Ram Prasad must have known that he was

running the risk of causing the death of Rajji or such bodily

injury as was likely to cause her death. As he had no excuse

for incurring that risk, the offence must be taken to fall

within 4thly of s. 300, Indian Penal Code. In other words,

his offence was culpable homicide amounting to murder

even if he did not intend causing the death of Mst. Rajji. He

committed an act so imminently dangerous that it was in all

probability likely to cause death or to result in an injury that

was likely to cause death. We are accordingly of the

opinion that the High Court and the Sessions Judge were

both wrong in holding that the offence did not fall within

murder.”

(Emphasis supplied)

B) In a similar fact situation, another bench of three Judges of

this Court, in Santosh S/o Shankar Pawar vs. State of Maharashtra40

observed,

“13. Even assuming that the accused had no intention to

cause the death of the deceased, the act of the accused falls

under clause Fourthly of Section 300 IPC that is the act of

causing injury so imminently dangerous where it will in all

probability cause death. Any person of average intelligence

would have the knowledge that pouring of kerosene and

setting her on fire by throwing a lighted matchstick is so

imminently dangerous that in all probability such an act

would cause injuries causing death.”

C) The principle in Santosh40 was adopted in Suraj Jagannath

Jadhav vs. State of Maharashtra41

D) In State of Haryana vs. Krishan and Another42

, where 36

persons had died after consuming spurious liquor, this Court set aside the

(2015) 7 SCC 641

(2020) 2 SCC 693

(2017) 8 SCC 204

acquittal ordered by the High Court and restored the order of conviction

under Section 302 IPC passed by the trial Court. It was observed:-

“33. Insofar as argument predicated on Section 120-B IPC

is concerned, even if we proceed on the basis that charge of

conspiracy is not proved, it would be suffice to observe that

adequate evidence is produced showing the culpability of

the respondents, individually. Once it is shown that the

spurious liquor was sold from the local vends belonging to

the respondents coupled with the fact that after this tragedy

struck, the respondents even tried to destroy remaining

bottles clearly establishes that the respondents had full

knowledge of the fact that the bottles contain substance

methyl and also had full knowledge about the disastrous

consequences thereof which would bring their case within

the four corners of Section 300 Fourthly. The respondents

cannot be treated as mere cat’s paw and naive. They have

exploited the resilient nature of bucolic and rustic

villagers.”

26. We may now consider some of the decisions of this Court in which

deaths had occurred because of injuries sustained by the victims during

sexual assault on them.

26.1 In State of Orissa vs. Dibakar Naik and Others43

, a bench of two

Judges of this Court dealt with a case where a lady of 23 years of age was

gang raped and lost her life. The concerned accused were convicted inter

alia under Sections 376 and 302 read with Section 34 of IPC by the trial

Court. However, their conviction and sentence were set aside by the High

Court. The appeals preferred by the State were partly allowed and while

(2002) 5 SCC 323

convicting four accused under Sections 376 and 304 II IPC, it was observed

by this Court:-

“23. However, the nature of the injuries inflicted upon the

person of the deceased indicate that the accused persons had

not intended to cause her death. Dr Indramani Jena (PW 21)

who conducted the post-mortem over the dead body of

Chhabirani had found the following injuries:

“(1) One swelling 1" diameter irregularly circular

over right mastoid process.

(2) One swelling (which was black in colour) on the

upper half of right breast 2" in diameter irregular

circular.

(3) On dissection I found the following:

The swelling in right mastoid area had underlying

haematoma. There was fracture of right fourth rib

under Injury 2. Right-side chest was filled with

blood of about one litre. The right lung was

displaced and was injured in anterior surface by

fractured rib. Heart chamber was empty, that is,

there was no blood.

(4) Stomach was empty.

(5) There were two ecchymosis of ¼" in diameter

each on posterior vaginal wall. The injuries were in 5

o’clock and 7 o’clock positions.

(6) On examination of the vaginal smear I found dead

spermatozoa and epithelial cells.

(7) By the time of my examination, there was process

of decomposition. Skin denudation had started.

Tongue was protruded and bitten. There was bleeding

from right angle of mouth and both ears. Abdomen

was protruded due to foul gases. Death was within 48

hours of the PM examination.”

He has opined that all injuries were ante-mortem. Death

was due to injuries causing internal haemorrhage. There

were signs of forcible sexual intercourse. It was a case of

violent type of intercourse. The injuries found were not in

normal course of sexual intercourse. Any violent assault

even without rape could cause Injuries 1 and 2 and the

corresponding internal injuries. Injury 2 with corresponding

internal injury was sufficient to cause the death.

24. Whoever causes death by doing an act with the intention

of causing death or with the intention of causing such bodily

injury as is likely to cause death or with the knowledge that

he is likely, by such act, to cause death, is responsible for

the commission of the offence of culpable homicide.

Culpable homicide is murder if the act by which the death

is caused is done with the intention of causing death and is

not covered by any of the exceptions of Section 300 of the

Indian Penal Code. As already noticed, in this case there is

no evidence to show that the aforesaid accused persons

proved to have been involved in the occurrence, had

intended to cause the offence of murder within the meaning

of Section 300 as punishable under Section 302 of the

Indian Penal Code. However, on proof of the commission

of offence of gang rape found to have been committed in a

violent manner, they are assumed to be having the

knowledge that by their action it was likely that the

deceased would have died. The aforesaid accused are,

therefore, guilty of the offence, punishable under Part II of

Section 304 of the Indian Penal Code. While acquitting the

other respondents 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 of offences punishable under Section 304 Part

II read with Section 34 of the Indian Penal Code besides the

commission of offence punishable under Section 376 read

with Section 34 of the Indian Penal Code. The conviction

and sentence awarded by the trial court to Birabar Mania

(A-5), Babaji Mania (A-6), Bhira Behera @ Baba Tanti (A7) and Madha Tanti @ Madhabananda Parmanik (A-11)

under Section 376 of the Indian Penal Code is upheld. On

proof of the offence punishable under Section 304 Part II

read with Section 34 IPC, the aforesaid accused persons are

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 committed in

a violent manner and that the offenders must be having the knowledge that

it was likely that by their action the victim would die, the accused were not

convicted of the offence of culpable homicide amounting to murder.

26.2 Similarly, in State, Govt of NCT of Delhi vs. Sunil and Another44

a girl of 4 years of age was raped by two accused and she lost her life as a

result of injuries sustained during sexual assault. A bench of two Judges of

this Court observed:-

“23. Thus on consideration of the entire evidence in this

case we have no doubt that the trial court had come to the

correct conclusion that the two respondents were the rapists

who subjected Anuradha to such savage ravishment. The

Division Bench of the High Court has grossly erred in

interfering with such a correct conclusion made by the trial

court as the reasons adopted by the High Court for such

interference are very tenuous. Nonetheless, it is difficult to

enter upon a finding that the respondents are equally guilty

of murder of Anuradha. In the opinion of PW 1 doctor the

child died “due to intracranial damage consequent upon

surface force impact to the head”. The said opinion was

made with reference to the subdural haematoma which

resulted in subarachnoid haemorrhage. Such a consequence

happened during the course of the violent ravishment

committed by either both or by one of the rapists without

possibly having any intention or even knowledge that their

action would produce any such injury. Even so, the rapists

cannot disclaim knowledge that the acts done by them on a

little infant of such a tender age were likely to cause its

death. Hence they cannot escape conviction from the

offence of culpable homicide not amounting to murder.

24. In the result, we set aside the impugned judgment of the

High Court. We restore the conviction passed by the trial

court under Sections 376 and 377 read with Section 34 IPC.

The trial court awarded the maximum sentence to the

respondents under the said counts i.e. imprisonment for life.

The fact-situation in this case does not justify any reduction

of that sentence. We also convict the respondents under

Section 304 Part II, read with Section 34 IPC though it is

(2001) 1 SCC 652

unnecessary to award any sentence thereunder in view of

the sentence of imprisonment for life awarded to the

respondents under the other two counts.”

26.3 In Amrit Singh vs. State of Punjab45

, a girl of 7-8 years died as a

result of excessive bleeding from her private parts because of sexual assault

on her. The accused was found guilty of offences under Sections 302 and

376 and was awarded death sentence. A bench of two Judges of this Court

observed:-

“21. The opinion of the learned trial Judge as also the High

Court that the appellant being aged about 31 years and not

suffering from any disease, was in a dominating position

and might have got her mouth gagged cannot be held to be

irrelevant. Some marks of violence not only on the neck but

also on her mouth were found. Submission of Mr Agarwal,

however, that the appellant might not have an intention to

kill the deceased, thus, may have some force. The death

occurred not as a result of strangulation but because of

excessive bleeding. The deceased had bleed half a litre of

blood. Dr. Reshamchand Singh, PW 1 did not state that

injury on the neck could have contributed to her death. The

death occurred, therefore, as a consequence of and not

because of any specific overt act on the part of the

appellant.”

This Court commuted the sentence to life imprisonment.

26.4 A bench of two Judges of this Court relied upon the decision in

State of Orissa v. Dibakar Naik43 and affirmed the conviction and sentence

under Sections 376 and 304 II IPC in State of AP v. T. Prasanna Kumar46

(2006) 12 SCC 79

(2003) 1 ACR 627 (SC) = JT 2002 (7) SC 635

26.5 On the other hand, in following four cases, two Judge benches of

this Court affirmed the conviction and sentence under Sections 302 and 376

IPC where the victims, aged between 1½ to 8 years had lost their lives as a

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 Pradesh48

Age of the Victim : 5-6 years

iii) Ram Deo Prasad vs. State of Bihar49

Age of the Victim : 4 years

iv) Ramesh vs. State through Inspector of Police50

Age of the Victim : 8 years

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

26.6 Recently, a three Judge bench of this Court in Dattatraya Ambo

Rokade vs. The State of Maharashtra51 had an occasion to consider where

a girl of 5 years was subjected to sexual assault. She died as a result of

injuries 1 to 5 suffered during the course of sexual assault on her. The

conviction of the accused inter alia under Sections 302, 376(2)(f) of IPC

(2001) 2 SCC 28

(2012) 5 SCC 777

(2013) 7 SCC 725

(2014) 9 SCC 392

(2019) 13 SCALE 187

and under the provisions of POCSO Act was affirmed by this Court and it

was observed:-

“125. As a mature man, over fifty years of age, the

Accused-Appellant should have known that the rape of a

five year old child by an adult was dangerous and could lead

to such injuries, as was in all probability likely to cause

death.”

27. The guiding principles were summed up in State of Madhya

Pradesh v. Ram Prasad39 to the effect that even if there be no intention to

cause death, “if there is such callousness towards the result and the risk taken

is such that it may be stated that the person knows that the act is 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 offender must be taken to

have known that he was running the risk of causing the death 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 Dattatraya Ambo Rokade v.

State of Maharashtra

28. Considering the age of the victim in the present case, the accused

must have known the consequence that his sexual assault on a child of 2 ½

years would cause death or such bodily injury as was likely to cause her

death. The instant matter thus comes within the parameters of clause

fourthly to Section 300 IPC and the question posed at the beginning of the

discussion on this issue must be answered against the Appellant. The

Appellant is therefore guilty of having committed the offence of culpable

homicide amounting to murder.

29. It must be observed at this stage that the decisions of this Court

referred to in paragraphs 26.1, 26.2 and 26.4 hereinabove failed to consider

the effect of clause fourthly to Section 300 IPC.

30. Before we turn to the submissions on sentence advanced by Ms.

Mathur, learned Senior Advocate, it needs to be noted that about 67 cases

were dealt with by this Court in last 40 years since the decision of this Court

in Bachan Singh8

, where i) the alleged offences were under Sections 376

and 302 IPC; and ii) the ages of the victims were 16 years or below. The

Cases are:-

Judgement

Reported at

Cause Title

Bench

Strength

Age of

the

Victim

Cause of Death of the

Victim

Accused Convicted

under Sections

Whether

Death

Sentence

Imposed?

Sentence

lesser than

Death

Sentence

1. (1981) 3 SCC 324

Kuljeet Singh @

Ranga v. Union

of India

3 Judges 16 years Injury to Neck with

Kirpan

S.302 r/w S.34 IPC

Ss. 363, 365, 366 and

376 r/w S. 34 IPC

Yes

2. (1991) 1 SCC 752

Jumman Khan v.

State of U.P.

2 Judges 6 years Strangulation

Ss. 302, 376 IPC

Yes

3. (1994) 3 SCC 381

Laxman Naik v.

State of Orissa

2 Judges 7 years Asphyxia by

throttling

Ss. 376, 302 IPC

Yes

4. (1996) 6 SCC 250

Kamta Tiwari v.

State of M.P.

2 Judges 7 years Strangulation

Ss. 363, 376, 302 and

201 IPC

Yes

5. (1997) 1 SCC 272

State of A.P. v.

Gangula Satya

Murthy

2 Judges 16 years Throttling

Ss.302, 376 IPC

Life

6. (1999) 4 SCC 108

Kumudi Lal v.

State of U.P.

2 Judges 14 years Strangulation

Ss.376, 302 IPC

S. 3(ii)(v) of the

SC&ST Act, 1989

Life

7. (1999) 6 SCC 60

Akhtar vs. State

of U.P.

2 Judges Age not

specified

Asphyxia

Ss. 302, 376 IPC

Life

8. (1999) 9 SCC 581

Molai v. State of

M.P.

3 Judges 16 years Strangulation

Ss. 376(2)(g), 302/34

and 201 IPC

Yes

9. (2000) 1 SCC 471

State of

Maharashtra v.

Suresh

2 Judges 4 years Smothering

Ss.302,376 IPC

Life

10. (2001) 1 SCC 652

State, Govt. of

NCT of Delhi v.

Sunil

2 Judges 4 years Intracranial damage

consequent to surface

force impact to the

head, subdural

haematoma causing

subarachnoid

haemorrhage

Ss. 376 and 377 r/w

S.34, S. 304 Part II r/w

S. 34 IPC

Life

11. (2001) 2 SCC 28

Mohd. Chaman v.

State (NCT of

Delhi)

2 Judges 1 ½

years

Haemorrhagic shock

consequent to liver

injury inflicted in the

process of committing

rape

Ss. 302 and 376 IPC

Life

12. (2001) 9 SCC 50

Raju v. State of

Haryana

2 Judges 11 years Shock and

haemorrhage as a

result of injuries

(Blows by brick to the

head and mouth)

Ss. 302, 376, 363 IPC

Life

13. (2001) 9 SCC 615

Bantu v. State of

M.P.

2 Judges 6 years Pressing nose and

mouth and obstructing

breath

Ss. 302, 376 IPC

Life

14. (2002) 1 SCC 622

State of

Maharashtra v.

Bharat Fakira

Dhiwar

2 Judges 3 years Massive cerebral

haemorrhage resulting

from the head injury

Ss. 302, 376, 201 IPC

Life

15. (2002) 1 SCC 731

Ganesh Lal v.

State of Rajasthan

2 Judges 11 years Throttling

Ss. 376(2)(f), 302 and

404 IPC

Life

16. JT 2002 (7) SC

635

State of A.P. v. T.

Prasanna Kumar

2 Judges 16 years Suffocation

Ss. 304(Part II)/376

IPC

10 years RI

17. (2003) 10 SCC

185

Subramani v.

State

3 Judges 14 years Strangulation

Ss. 302, 376 IPC

Life

18. (2003) 8 SCC 93

Amit v. State of

Maharashtra

2 Judges 11-12

years

Strangulation

Ss. 302, 376 IPC

Life

19. (2004) 10 SCC

616

State of U.P. v.

Devendra Singh

2 Judges 10 years Throttling

Ss. 302, 376 and 201

IPC

Life

20. 2005 (3) SCC 131

State of

Maharashtra v.

Mansingh

2 Judges -- --

Ss. 302, 376, 201 IPC

Life

21. (2005) 3 SCC 114

State of U.P. v.

Satish

2 Judges Less

than 6

years

Smothering

Ss. 302, 363, 366,

376(2)(f), 201 IPC

Yes

22. (2005) 3 SCC 127

Surendra Pal

Shivbalakpal v.

State of Gujarat

2 Judges Minor Asphyxia

Ss. 363, 376 and 302

IPC

Life

23. (2006) 9 SCC 278

State of U.P. v.

Desh Raj

2 Judges 10 years Strangulation

Ss. 302, 376 IPC

Life

24. (2006) 12 SCC 79

Amrit Singh v.

State of Punjab

2 Judges 7/8 years Bleeding from vulva

as a result of rape

Ss. 376 and 302 IPC

Life

25. (2007) 11 SCC

467

Bishnu Prasad

Sinha v. State of

Assam

2 Judges 7/8 years Asphyxia resulting

from inhalation of

semisolid watery

substances

Ss. 376(2)(g), 302 and

201 r/w S. 34 IPC

Life

26. (2008) 7 SCC 561

Accused “X” v.

State of

Maharashtra

3 Judges 5 years

10 years

Strangulation

Ss. 363, 376, 302 and

201 IPC

Yes Refer to

26A.

(2019) 7 SCC 1

Accused “X” v.

State of

Maharashtra

3 Judges 5 years

10 years

Strangulation

Ss. 363, 376, 302 and

201 IPC

Commuted

to Life

Sentence

27. (2008) 11 SCC

113

Bantu v. State of

U.P.

2 Judges 5 years Shock and

haemorrhage as a

result of injuries due to

insertion of the

wooden stick into the

vagina

Ss. 364, 376 and 302

IPC

Yes

28. (2008) 15 SCC

269

Shivaji @ Dadya

Shankar Alhat v.

State of

Maharashtra

2 Judges 9 years Strangulation

Ss. 302, 376(2)(f) IPC

Yes

29. (2009) 15 SCC

259

Pawan v. State of

Uttaranchal

3 Judges 6 years Strangulation

Ss. 302/34, Ss. 376,

377, Ss. 201/34 IPC

Life

30. (2010) 1 SCC 58

Sebastian v. State

of Kerala

2 Judges 2 years Combined effects of

drowning and blunt

injuries sustained

around nose and

mouth

Life

Ss. 302, 364, 369,

376(2)(f), 392, 449

IPC

31. (2010) 2 SCC 583

Aftab Ahmad

Anasari v. State

of Uttaranchal

2 Judges 5 years Strangulation

Ss. 302, 376, 201 IPC

Life

32. (2011) 2 SCC 764

Rameshbhai

Chandubhai

Rathod (2) v.

State of Gujarat

3 Judges Class IV

student –

aged 10

years

Neurogenic shock

because of sexual

intercourse and

multiple injuries.

Ss. 363, 366, 376, 302,

397 IPC

Life

33. (2011) 5 SCC 317

Mohd. Mannan v.

State of Bihar

2 Judges 7 years Asphyxia and

haemorrhage as a

result of strangulation

Ss. 366, 376, 201, 302

IPC

Yes Refer to

33A.

(2019) 16 SCC

584

Mohd. Mannan v.

State of Bihar

3 Judges 7 years Asphyxia and

haemorrhage as a

result of strangulation

Ss. 366, 376, 201, 302

IPC

Commuted

to Life

Sentence

34. (2011) 4 SCC 80

Surendra Koli v.

State of U.P.

2 Judges Many

Children

Cooked, body parts

consumed

Ss. 302, 364, 376 IPC

Yes

35. (2011) 15 SCC

352

Purna Chandra

Kusal v. State of

Orissa

2 Judges 5 years Asphyxia

Ss. 302, 376 IPC

Life

36. (2011) 12 SCC 56

Haresh Mohandas

Rajput v. State of

Maharashtra

2 Judges 10 years Strangulation

Ss. 302, 376 IPC

Life

37. (2012) 4 SCC 107

Amit v. State of

U.P.

2 Judges 3 years Been hit on her head

and her left side of the

face, strangulated,

unnatural offence and

rape was committed

on her

Ss. 364, 376, 377, 302

and 201 IPC

Life

38. (2013) 9 SCC 795

Chhote Lal v.

State of M.P.

2 Judges 10 years --

Ss. 376(2) and 302

Life

39. (2012) 5 SCC 766

Neel Kumar v.

State of Haryana

2 Judges 4 years Asphyxia because of

throttling

Ss. 302/376(2)(f) and

201

Life

40. (2012) 5 SCC 777

Ramesh Harijan

v. State of U.P.

2 Judges 5-6 years Shock and

haemorrhage as a

result of ante-mortem

vaginal injuries.

Ss. 302, 376

Life

41. (2012) 4 SCC 37

Rajendra

Pralhadrao Wasnik

v. State of

Maharashtra

2 Judges 3 years Cause of death was

rape and asphyxia

Ss. 376(2)(f), 377 and

302 IPC

Yes Refer to

41A.

(2019) 12 SCC

460

Rajendra

Pralhadrao

Wasnik v. State of

Maharashtra

2 Judges 3 years Cause of death was

rape and asphyxia

Ss. 376(2)(f), 377 and

302 IPC

Commuted

to Life

Sentence

42. (2012) 7 SCC 699

Kashinath

Mondal v. State

of W.B.

2 Judges Not

given

Death caused by rape,

strangulation

Ss. 376 and 302 IPC

Life

43. (2012) 9 SCC 742

State of U.P. v.

Munesh

2 Judges 11 years Asphyxia due to

strangulation and also

due to pre-mordial

injuries

Ss. 302, 376 IPC

Life

44. (2013) 5 SCC 546

Shankar Kisanrao

Khade v. State of

Maharashtra

2 Judges 11 years Asphyxia due to

strangulation

Ss. 302, 376, 366-A

and 363 r/w S.34 IPC

Life

45. (2013) 7 SCC 725

Ram Deo Prasad

v. State of Bihar

2 Judges 4 years Excessive

haemorrhage leading

to shock from antemortem injuries

around genitalia and

private parts by some

sexual offences

Ss. 376, 302 IPC

Life

46. (2013) 10 SCC

721

State of Rajasthan

v. Jamil Khan

2 Judges Below 5

years

Asphyxia due to

strangulation

Ss. 302, 376, 201 IPC

Life

47. (2014) 5 SCC 353

Rajkumar v. State

of Madhya

Pradesh

2 Judges 14 years Asphyxia as a result of

strangulation

Ss. 302, 376, 450 IPC

Life

48. (2014) 9 SCC 392

Ramesh v. State

2 Judges 8 years Neurogenic shock due

to rape

Ss. 376, 302, 201 IPC

Life

49. (2014) 12 SCC

274

Selvam v. State

3 Judges 9 years Injury on the head

(from a cot)

Ss. 302, 376, 379 and

201 IPC

Life

50. (2015) 2 SCC 783

Duryodhan Rout

v. State of Orissa

2 Judges 10 years Throttling

Ss. 376, 302 and 201

IPC

Life

51. (2015) 1 SCC 253

Vasanta Sampat

Dupare v. State of

Maharashtra

3 Judges 4 years Cause of death was

head injury, associated

with the injury on the

genital region

Yes

Also refer

to 51A.

Ss. 302, 376(2)(f),

363, 367, 201 IPC

(2017) 6 SCC 631

Vasanta Sampat

Dupare v. State of

Maharashtra

3 Judges 4 years Cause of death was

head injury, associated

with the injury on the

genital region

Ss. 302, 376(2)(f),

363, 367, 201 IPC

Confirms

Death

Penalty

52. (2015) 2 SCC 775

Darga Ram v.

State of Rajasthan

2 Judges 7 years Homicidal death on

account of injury on

head

Ss. 376, 302 IPC

Convicted

but

Sentence

set aside

(Juvenile)

53. (2015) 16 SCC

492

Kalu Khan v.

State of Rajasthan

3 Judges 4 years Extensive injuries at

neck and other vital

parts of the body

Ss. 363, 364,

376(2)(f), 302, 201

IPC

Life

54. (2016) 3 SCC 19

State of Assam v.

Ramen Dowarah

2 Judges Not

Estd.

(Young)

Burn injuries

Ss. 376, 302, 454 IPC

Life

55. (2016) 9 SCC 325

Kadamanian v.

State

2 Judges Not

mention

Face crushed with

stones (Corresponding

injuries on head)

Ss. 302, 376, 404, 201

IPC

Life

56. (2016) 9 SCC 675

Tattu Lodhi v.

State of Madhya

Pradesh

3 Judges 7 years Asphyxia from

choking out the throat

by strangulation of the

neck

Ss. 302,364,363,

376(2)(f)/511 & 201

IPC

Life

57. (2017) 4 SCC 393

Sunil v. State of

Madhya Pradesh

3 Judges 4 years Strangulation/Asphyx

Ss. 302, 363, 367,

376(2)(f) IPC

Life

58. (2019) 8 SCC 371

Sachin Kumar

Singhraha v. State

of Madhya

Pradesh

3 Judges 5 years Ante-mortem

drowning

Ss. 376-A, 302 and

201 Part II IPC

Ss.5 (i) and 5(m) r/w

S.6 of POCSO Act

Life

59. (2019) 13 SCC

640

Babasaheb

Maruti Kamble v.

State of

Maharashtra

3 Judges Not

mention

Head injury with

compression of neck

Ss. 302, 376(2)(f), 342

IPC

Life

60. (2019) 16 SCC

380

Raju Jagdish

Paswan v. State of

Maharashtra

3 Judges 9 years Drowning

Ss. 302, 376(2)(f) and

201 IPC

Life

61. (2019) 16 SCC

278

3 Judges 8 years --

Ss. 302, 363, 366 and

376(2)(i) IPC

Life

Nand Kishore v.

State of Madhya

Pradesh

62. (2019) 4 SCC 210

Vijay Raikwar v.

State of M.P.

3 Judges 7 ½

years

Asphyxia due to

throttling

Ss. 376(2)(f), 201 IPC

Ss.5(i), 5(m) and 5(r)

r/w S.6 POCSO Act

Life

63. (2019) 8 SCC 382

Parsuram v. State

of M.P.

3 Judges Minor Asphyxia as a result of

strangulation

Ss. 302, 376

Life

64. 2019 (13)

SCALE 187

Dattatraya v.

State of

Maharashtra

3 Judges 5 years Asphyxia due to

smothering,

associated with head

injuries and sexual

assault

Ss. 302, 376(2)(f), 377

IPC r/w Ss. 3, 4 and 5

POCSO

Life

65. (2019) 7 SCC 716

Manoharan v.

State

3 Judges

10 years Drowning

Ss. 376(2)(f) &

376(2)(g), 302, 201

IPC

Yes

Also refer

to 65A.

2019 (14)

SCALE 800

Manoharan v.

State

3 Judges 10 years Drowning

Ss. 376(2)(f) &

376(2)(g), 302, 201

IPC

Confirms

Death

Penalty

66. (2019) 9 SCC 622

Ravi S/o Ashok

Ghumare v. State

of Maharashtra

3 Judges 2 years Throttling

Ss. 302, 363, 376, 377

IPC

Yes

67. (2019) 9 SCC 689

Ravishankar v.

State of M.P.

3 Judges 13 years Throttling

Ss. 363, 366,

376(2)(i), 376(2)(n),

376(2)(j), 376(2)(m),

376-A, 302 and 201

IPC

Yes

Out of these 67 cases, this Court affirmed the award of death

sentence to the accused in 15 cases. In three (at Sr. Nos. 26A, 33A and 41A)

out of said 15 cases, the death sentence was commuted to life sentence by

this Court in Review Petitions. Out of remaining 12 cases, in two cases

(where Review Petitions were heard in open Court in terms of law laid down

in Mohd. Arif alias Ashfaq vs. Registrar, Supreme Court of India52)

(2014) 9 SCC 737

namely in cases at Sr. Nos. 51A and 65A, the death sentence was confirmed

by this Court and the Review Petitions were dismissed. Thus, as on date,

the death sentence stands confirmed in 12 out of 67 cases where the principal

offences allegedly committed were under Sections 376 and 302 IPC and

where the victims were aged about 16 years or below.

Out of these 67 cases, at least in 51 cases the victims were aged

below 12 years. In 12 out of those 51 cases, the death sentence was initially

awarded. However, in 3 cases (at Sr. Nos. 26A, 33A and 41A) the death

sentence was commuted to life sentence in Review.

In 2 out of aforesaid 67 cases (at Sr. Nos. 58 and 67), the offences

were committed on 23.02.2015 and 22.05.2015 respectively i.e., after the

Amendment Act received the assent of the President and was published on

02.04.2013 (but given retrospective effect from 03.02.2013). The

conviction was also under Section 376A of IPC and the evidence showed

specific acts such as drowning the victim or throttling her. In the first case,

the age of the victim was 5 years while in the second case the victim was

aged 13 years. In the first case the sentence imposed by this Court was 25

years of imprisonment without remission while in the second, the life

sentence for the remainder of the life of the accused, was imposed.

31. We now turn to the first submission advanced by Ms. Mathur,

learned Senior Advocate on the issue of sentence. Section 235 (2) of the

Code mandates that the accused must be heard on sentence. In the instant

case the order of sentence was made on the same day the order of conviction

was pronounced. In Santa Singh v. State of Punjab53 the accused was

convicted and sentenced to death by one single judgment and thus a bench

of two judges of this Court found that there was infraction of Section 235

(2) of the Code. The sentence of death was therefore set aside and the matter

was remanded to the Sessions Court. Whether, for non-compliance of

Section 235 (2) of the Code, the matter be remanded in the light of the

decision in Santa Singh v. State of Punjab53 was thereafter considered by a

bench of three judges of this Court in Dagdu v. State of Maharashtra54

Chandrachud, CJ. who delivered the leading judgment, observed: -

“79. But we are unable to read the judgment in Santa Singh

as laying down that the failure on the part of the Court,

which convicts an accused, to hear him on the question of

sentence must necessarily entail a remand to that Court in

order to afford to the accused an opportunity to be heard on

the question us sentence. The Court, on convicting an

accused, must unquestionably hear him on the question of

sentence. But if, for any reason, it omits to do so and the

accused makes a grievance of it in the higher court, it would

be open to that Court to remedy the breach by giving a

hearing to the accused on the question of sentence. That

opportunity has to be real and effective, which means that

the accused must be permitted to adduce before the Court

all the data which he desires to adduce on the question of

sentence. The accused may exercise that right either by

instructing his counsel to make oral submissions to the

Court or he may, on affidavit or otherwise, place in writing

before the Court whatever he desires to place before it on

the question of sentence. The Court may, in appropriate

cases, have to adjourn the matter in order to give to the

53 (1976) 4 SCC 190

54 (1977) 3 SCC 68

accused sufficient time to produce the necessary data and to

make his contentions on the question of sentence. That,

perhaps, must inevitably happen where the conviction is

recorded for the first time by a higher court.”

Goswami, J., authored a concurring opinion, the relevant part of

which was quoted in B. A. Umesh v. High Court of Karnataka31

32. In Allauddin Mian v. State of Bihar11

, the order of sentence was

passed on the same day the order of conviction was pronounced and a bench

of two judges of this Court commuted the sentence of death to life

imprisonment. In Malkiat Singh v. Stat of Punjab12

, a bench of three judges

of this Court did not deem it appropriate to remand the matter for hearing

the accused on sentence after six years and commuted the sentence of death

to life imprisonment. In Ajay Pandit v. State of Maharashtra13

, a bench of

two judges of this Court found that the opportunity afforded to the accused

in terms of Section 235 (2) of the Code was purely mechanical and no

genuine efforts were made to elicit any information either from the accused

or from the prosecution as to whether any circumstances existed which

might influence the High Court to avoid award of death sentence.

33. In B. A. Umesh v. High Court of Karnataka31, a bench of three

judges of this Court considered the decisions on the point including the

question whether the matter was required to be remanded to hear the accused

on sentence. Paragraphs 11 to 13 of the decision were as under :-

“11. In Dagdu v. State of Maharashtra54 Goswami, J.

observes as under:

“90. I would particularly emphasise that there is

no mandatory direction for remanding any case

in Santa Singh v. State of Punjab53 nor is

remand the inevitable recipe of Section 235(2),

Code of Criminal Procedure, 1973. Whenever

an appeal court finds that the mandate of

Section 235(2) CrPC for a hearing on sentence

had not been complied with, it, at once,

becomes the duty of the appeal court to offer to

the accused an adequate opportunity to produce

before it whatever materials he chooses in

whatever reasonable way possible. Courts

should avoid laws’ delay and necessarily

inconsequential remands when the accused can

secure full benefit of Section 235(2) CrPC even

in the appeal court, in the High Court or even in

this Court. We have unanimously adopted this

very course in these appeals.”

12. In another three-Judge Bench case in Tarlok Singh v.

State of Punjab55, at para 4, Krishna Iyer, J. writes:

“4. In Santa Singh v. State of Punjab53 this

Court considering Section 235(2) CrPC held

that the hearing contemplated by that subsection is not confined merely to hearing oral

submissions but extends to giving an

opportunity to the prosecution and the accused

to place before the court facts and materials

relating to the various factors bearing on the

question of sentence and, if they are contested

by either side, then to produce evidence for the

purpose of establishing the same. Of course, in

that particular case this Court sent the case back

to the Sessions Court for complying with

Section 235(2) CrPC. It may well be that in

many cases sending the case back to the

Sessions Court may lead to more expense, delay

(1977) 3 SCC 218

and prejudice to the cause of justice. In such

cases, it may be more appropriate for the

appellate court to give an opportunity to the

parties in terms of Section 235(2) to produce the

materials they wish to adduce instead of going

through the exercise 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 Bihar56, yet another threeJudge Bench case, Dattu, J. observes in para 54 as under:

“54. Herein, it is not the case of the appellants

that the opportunity to be heard on the question

of sentence separately as provisioned for under

Section 235(2) of the Code was not provided by

the courts below. Further, the trial court has

recorded and discussed the submissions made

by the appellants and the prosecution on the

said question and thereafter, rejected the

possibility of awarding a punishment less harsh

than the death penalty. However, the High

Court while confirming the sentence has

recorded57 reasons though encapsulated. The

High Court has noticed the motive of the

appellants being non-withdrawal of the case by

the informant and the ghastly manner of

commission of crime whereby six innocent

persons as young as 3-year old were charred to

death and concluded that the incident shocks

the conscience of the entire society and thus

deserves nothing lesser but death penalty.” ”

34. Subsequently, the issue was again considered in Vasanta Sampat

Dupare v. State of Maharashtra32 and after referring to the decisions of this

Court including those rendered in Allauddin Mian v. State of Bihar11

(2013) 10 SCC 421

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

Malkiat Singh v. State of Punjab12

and B. A. Umesh v. High Court of

Karnataka31

, a bench of three judges of this Court observed : -

“16. This Court then relied on the principle laid down in

Dagdu v. State of Maharashtra54 which was followed

subsequently by another Bench of three learned Judges in

Tarlok Singh v. State of Punjab55. In the circumstances,

merely because no separate date was given for hearing on

sentence, we cannot find the entire exercise to be flawed or

vitiated. Since we had allowed the petitioner to place the

relevant material on record in the light of the principles laid

down in Dagdu v. State of Maharashtra54 we will proceed

to consider the material so placed on record and weigh these

factors and the aggravating circumstances as found by the

Court in the judgment under review.”

Recently, in Manoj Suryavanshi vs. State of Chhattisgarh58

, a

bench of three Judges of this Court, after considering the relevant decisions

on the point, concluded:-

“27.2. Thus, there is no absolute proposition of law that in

no case there can be conviction and sentence on the same

day. There is no absolute proposition of law laid down by

this Court in any of the decisions that if the sentence is

awarded on the very same day on which the conviction was

recorded, the sentencing would be vitiated.”

Thus, merely on account of infraction of Section 235 (2) of the Code,

the death sentence ought not to be commuted to life imprisonment. In any

case we have afforded adequate and sufficient opportunity to the Appellant

(2020) 4 SCC 451



to place all the relevant materials on record in the light of principle laid

down in Dagdu v. State of Maharashtra54

35. Before we deal with the second submission on sentence, it must be

observed that as laid down by this Court in Sharad Birdhichand Sarda v.

State of Maharashtra34

, a case based on circumstantial evidence has to face

strict scrutiny. Every circumstance from which conclusion of guilt is to be

drawn must be fully established; the circumstances should be conclusive in

nature and tendency; they must form a chain of evidence so complete as not

to leave any reasonable ground for a conclusion consistent with the

innocence of the accused; and such chain of circumstances must be

consistent only with the hypothesis of the guilt of the accused and must

exclude every possible hypothesis except the one sought to be proved by the

prosecution. The decision in Sharad Birdhichand Sarda v. State of

Maharashtra34 had noted the consistent view on the point including the

decision of this Court in Hanumant v. State of Madhya Pradesh59 in which

a bench of three judges of this Court had ruled:-

“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 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

59 (1952) SCR 1091

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.”

Secondly, on the issue as to what should be the approach in the matter

of sentence, a bench of three judges of this Court in Vadivelu Thevar v.

State of Madras60 stated:-

“Lastly, it was urged that assuming that the court was

inclined to act upon the testimony of the first witness and to

record a conviction for murder as against the first appellant,

the court should not impose the extreme penalty of law and

in the state of the record as it is, the lesser punishment

provided by law should be deemed to meet the ends of

justice. We cannot accede to this line of argument. The first

question which the court has to consider in a case like this,

is whether the accused has been proved, to the satisfaction

of the court, to have committed the crime. If the court is

convinced about the truth of the prosecution story,

conviction has to follow. The question of sentence has to be

determined, not with reference to the volume or character

of the evidence adduced by the prosecution in support of

the prosecution case, but with reference to the fact whether

there are any extenuating circumstances which can be said

to mitigate the enormity of the crime. If the court is satisfied

that there are such mitigating circumstances, only then, it

would be justified in imposing the lesser of the two

sentences provided by law. In other words, the nature of the

proof has nothing to with the character of the punishment.

The nature of the proof can only bear upon the question of

conviction - whether or not the accused has been proved to

be guilty. If the court comes to the conclusion that the guilt

has been brought home to the accused, and conviction

follows, the process of proof is at an end. The question as

to what punishment should be imposed is for the court to

decide in all the circumstances of the case with particular

reference to any extenuating circumstances. 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 be legitimately urged

in support of the view that the lesser penalty under s. 302 of

the Indian Penal Code, should meet the ends of justice. It

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

was a cold-blooded murder. The accused came for the

second time, determined to see that their victim did not

possibly escape the assassins' hands.”

(Emphasis added)

It was laid down that the question of sentence must be determined

not with reference to the volume or character of the evidence on record but

with reference to the circumstances which mitigate the enormity of the

crime and that the nature of proof can have bearing upon the question of

sentence and not with the question of punishment.

36. We may now consider some of the cases where death penalty was

imposed when conviction was based on circumstantial evidence.

(i) Jumman Khan vs. State of U.P. and Another61; while dismissing

Writ Petition of a death convict this Court noted in para 4 the earlier

order passed by a bench of two judges confirming the death sentence.

“4. Feeling aggrieved by the judgment of the High

Court, the petitioner filed S.L.P. (Criminal) No. 558 of

1986. This Court by its order dated March 20, 1986

dismissed the SLP observing thus:

“Although the conviction of the petitioner

under Section 302 of the Indian Penal Code,

1860 rests on circumstantial evidence, the

circumstantial evidence against the

petitioner leads to no other inference except

that of his guilt and excludes every

hypothesis of his innocence. Apart from the

circumstances brought out by the

prosecution, each one of which has been

61 (1991) 1 SCC 752

proved, there is no extra-judicial confession

which lends support to the prosecution case

that the child had been raped by the

petitioner and thereafter strangulated to

death.

Failure to impose a death sentence in such

grave cases where it is a crime against the

society — particularly in cases of murders

committed with extreme brutality — will

bring to naught the sentence of death

provided by Section 302 of the Indian Penal

Code. It is the duty of the court to impose a

proper punishment depending upon the

degree of criminality and desirability to

impose such punishment. The only

punishment which the appellant deserves

for having committed the reprehensible and

gruesome murder of the innocent child to

satisfy his lust, is nothing but death as a

measure of social necessity and also as a

means of deterring other potential

offenders. The sentence of death is

confirmed.”

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

“19. Learned counsel for the appellant further submitted

that the case rests on the circumstantial evidence and the

quality of the evidence adduced is not of that high order and

therefore it is not safe to impose death sentence. In this

context he relied on a judgment of this Court in Shankar v.

State of T.N.63 We have gone through that judgment and it

is only indicated there that the quality of evidence also

would be a factor to be taken into consideration. The

circumstantial evidence in this case cannot at all be said to

be qualitatively inferior in any manner. It is well-settled that

if there is clinching and reliable circumstantial evidence,

then that would be the best evidence to be safely relied

upon. As observed in Bachan Singh v. State of Punjab8

there may be many circumstances justifying the passing of

the lighter sentence as there are countervailing

circumstances of aggravation warranting imposition of

(1994) 6 SCC 186

(1994) 4 SCC 478

death sentence. In Machhi Singh v. State of Punjab9

, a

Bench of three Judges of this Court having noted the

principles laid down in Bachan Singh case8

regarding the

formula of “rarest of rare cases” for imposing death

sentence, observed that the guidelines indicated in Bachan

Singh case8 will have to be culled out and applied to the

facts of each individual case where the question of imposing

of death sentence arises. It was further observed as under:

(SCC p. 489, para 40)

“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 hereinabove,

the circumstances of the case are such that

death sentence is warranted, the court would

proceed to do so.”

Likewise in Allauddin Mian v. State of Bihar11, the same

view has been reiterated thus: (SCC p. 22, para 12)

“However, in order that the sentences may be

properly graded to fit the degree of gravity of

each case, it is necessary that the maximum

sentence prescribed by law should, as observed

in Bachan Singh case8

, be reserved for the

‘rarest of rare’ cases which are of an

exceptional nature. Sentences of severity are

imposed to reflect the seriousness of the crime,

to promote respect for the law, to provide just

punishment for the offence, to afford adequate

deterrent to criminal conduct and to protect the

community from further similar conduct. It

serves a three-fold purpose (i) punitive (ii)

deterrent and (iii) protective. That is why this

Court in Bachan Singh case8

observed that

when the question of choice of sentence is

under consideration the Court must not only

look to the crime and the victim but also the

circumstances of the criminal and the impact of

the crime on the community. Unless the nature

of the crime and the circumstances of the

offender reveal that the criminal is a menace to

the society and the sentence of life

imprisonment would be altogether inadequate,

the court should ordinarily impose the lesser

punishment and not the extreme punishment of

death which should be reserved for exceptional

cases only.”

Bearing these principles in mind and after having given our

anxious consideration, we are of the firm opinion in view

of the above circumstances that the case of the appellant

comes within the category of “rarest of rare cases” and the

two courts below have rightly 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

(v) Shivaji alias Dadya Shankar Alhat vs. State of

Maharashtra66; while affirming the conviction and sentence of death

for offences under Sections 376 and 302 IPC it was observed:-

“27. The plea that in a case of circumstantial evidence death

should not be awarded is without any logic. If the

circumstantial evidence is found to be of unimpeachable

character in establishing the guilt of the accused, that forms

the foundation for conviction. That has nothing to do with

the question of sentence as has been observed by this Court

in various cases while awarding death sentence. The

mitigating circumstances and the aggravating

circumstances have to be balanced. In the balance sheet of

such circumstances, the fact that the case rests on

circumstantial evidence has no role to play. In fact in most

of the cases where death sentences are awarded for rape and

murder and the like, there is practically no scope for having

an eyewitness. They are not committed in the public view.

But the very nature of things in such cases, the available

evidence is circumstantial evidence. If the said evidence has

been found to be credible, cogent and trustworthy for the

purpose of recording conviction, to treat that evidence as a

mitigating circumstance, would amount to consideration of

an irrelevant aspect. The plea of the learned amicus curiae

that the conviction is based on circumstantial evidence and,

(1996) 6 SCC 250

(1999) 9 SCC 581

(2008) 15 SCC 269

therefore, the death sentence should not be awarded is

clearly unsustainable.”

(emphasis supplied)

vi) Vasanta Sampat Dupare v. State of Maharashtra6

“38. On a critical analysis of the evidence on record, we are

convinced that the circumstances that have been clearly

established are: that the appellant was seen in the courtyard

where the minor girl and other children were playing; that

the appellant was seen taking the deceased on his bicycle;

that he had gone to the grocery shop owned by PW 6 to buy

Minto fresh chocolate along with her; that the accused had

told PW 2 that the child was the daughter of his friend and

he was going to “Tekdi-Wadi” along with the girl; that the

appellant had led to the discovery of the dead body of the

deceased, the place where he had washed his clothes and at

his instance the stones smeared with blood were recovered;

that the medical report clearly indicates about the injuries

sustained by the deceased on her body; that the injuries

sustained on the private parts have been stated by the doctor

to have been caused by forcible sexual intercourse; that the

stones that were seized were smeared with blood and the

medical evidence corroborates the fact that injuries could

have been caused by battering with stones; that the chemical

analysis report shows that the blood group on the stones

matches with the blood group found on the clothes of the

appellant; that the appellant has not offered any explanation

with regard to the recovery made at his instance; and that

nothing has been stated in his examination under Section

313 CrPC that there was any justifiable reason to implicate

him in the crime in question. Thus, we find that each of the

incriminating circumstances has been clearly established

and the chain of circumstances are conclusive in nature to

exclude any kind of hypothesis, but the one proposed to be

proved, and lead to a definite conclusion that the crime was

committed by the accused. Therefore, we have no hesitation

in affirming the judgment of conviction rendered by the

learned trial Judge and affirmed by the High Court.”

(Emphasis supplied)

vii) Manoharan v. State67

“23. ….. The entire chain of events has been made out

and despite this being a case of circumstantial evidence,

(2019) 7 SCC 716

the prosecution has clearly proved its case beyond

reasonable doubt. The courts below are right in convicting

the appellant of rape and murder.”

(Emphasis supplied)

The decisions at Sl. Nos.(iv), (vi) and (vii) were by benches of three

Judges and dealt with cases where the convictions were inter alia under

Sections 302, 376 IPC and the victims were aged 16 years or below; while

the others were by benches of two Judges.

37. However, there is a definite line of cases, where thoughts have been

expressed that in cases of conviction based on circumstantial evidence, the

death sentence should not normally be imposed. Some such cases are:-

(i) Aloke Nath Dutta v. State of West Bengal68:-

“81. There is no eyewitness to the occurrence. Nobody has

noticed any suspicious conduct on the part of the appellants

indicating their role in committing murder or disposing of

the dead body. While dealing with a case of grave nature

like the present one, there is always a danger that

conjectures and suspicion may take the place of legal truth.

This Court has laid down guidelines from time to time in

regard to a finding of guilt solely on the basis of

circumstantial evidence in a number of cases. …. ….”

(ii) Bishnu Prasad Sinha v. State of Assam14:-

“55. The question which remains is as to what punishment

should be awarded. Ordinarily, this Court, having regard to

the nature of the offence, would not have differed with the

opinion of the learned Sessions Judge as also the High

Court in this behalf, but it must be borne in mind that the

appellants are convicted only on the basis of the

circumstantial evidence. There are authorities for the

proposition that if the evidence is proved by circumstantial

evidence, ordinarily, death penalty would not be awarded.

(2007) 12 SCC 230

Moreover, Appellant 1 showed his remorse and repentance

even in his statement under Section 313 of the Code of

Criminal Procedure. He accepted his guilt.”

(Emphasis supplied)

(iii) Swamy Shraddananda (2) v. State of Karnataka69

While considering the decision of this Court in Bachan

Singh8

, it was observed:-

“36. Arguing against standardisation of cases for the

purpose of death sentence the Court observed that even

within a single category offence there are infinite,

unpredictable and unforeseeable variations. No two

cases are exactly identical. There are countless

permutations and combinations which are beyond the

anticipatory capacity of the human calculus. The Court

further observed that standardisation of the sentencing

process tends to sacrifice justice at the altar of blind

uniformity.

… … …

“48. That is not the end of the matter. Coupled with the

deficiency of the criminal justice system is the lack of

consistency in the sentencing process even by this Court. It

is noted above that Bachan Singh8

laid down the principle

of the rarest of rare cases. Machhi Singh9

for practical

application crystallised the principle into five definite

categories of cases of murder and in doing so also

considerably enlarged the scope for imposing death penalty.

But the unfortunate reality is that in later decisions neither

the rarest of rare cases principle nor the Machhi Singh9

categories were followed uniformly and consistently.

49. In Aloke Nath Dutta v. State of W.B.68 Sinha, J. gave

some very good illustrations from a number of recent

decisions in which on similar facts this Court took contrary

views on giving death penalty to the convict. He finally

observed that “courts in the matter of sentencing act

differently although the fact situation may appear to be

somewhat similar” and further “it is evident that different

Benches had taken different view in the matter”. Katju, J.

in his order passed in this appeal said that he did not agree

(2008) 13 SCC 767

with the decision in Aloke Nath Dutta68 in that it held that

death sentence was not to be awarded in a case of

circumstantial evidence. Katju, J. may be right that there

cannot be an absolute rule excluding death sentence in all

cases of circumstantial evidence (though in Aloke Nath

Dutta68 it is said “normally” and not as an absolute rule).

But there is no denying the illustrations cited by Sinha, J.

which are a matter of fact.”

(emphasis supplied)

(iv) Santosh Kumar Satishbhushan Bariyar v. State of

Maharashtra70

Relying upon the testimony of an approver, the sentence of

death was awarded. The decision of this Court in Mohan and ors. vs.

State of Tamil Nadu71 was distinguished thus:-

“161. Mr Adsure has placed strong reliance on a

decision of this Court in Mohan v. State of T.N.71

contend that the manner in which the murder was

committed itself points out that all the accused

deserved death penalty. In our opinion the facts of that

case are clearly distinguishable from the present one.

That case involved the murder of a minor. It clearly is

not applicable to the present case. Moreover, the Court

in that case too recognised that proper and due regard

must be given to the mitigating circumstances in every

case.”

After considering the mitigating circumstances it was

observed:-

“167. The entire prosecution case hinges on the

evidence of the approver. For the purpose of imposing

death penalty, that factor may have to be kept in mind.

(2009) 6 SCC 498

(1998) 5 SCC 336 – case of kidnapping of a minor boy of 10 years for ransom

and murder. Award of death sentence to appellants Mohan and Gopi was affirmed

by this Court.

We will assume that in Swamy Shraddananda (2)69

this Court did not lay down a firm law that in a case

involving circumstantial evidence, imposition of death

penalty would not be permissible. But, even in relation

thereto the question which would arise would be

whether in arriving at a conclusion some surmises,

some hypothesis would be necessary in regard to the

manner in which the offence was committed as

contradistinguished from a case where the manner of

occurrence had no role to play. Even where sentence of

death is to be imposed on the basis of the circumstantial

evidence, the circumstantial evidence must be such

which leads to an exceptional case.

168. We must, however, add that in a case of this nature

where the entire prosecution case revolves round the

statement of an approver or is dependent upon the

circumstantial evidence, the prudence doctrine should

be invoked. For the aforementioned purpose, at the

stage of sentencing evaluation of evidence would not

be permissible, the courts not only have to solely

depend upon the findings arrived at for the purpose of

recording a judgment of conviction, but also consider

the matter keeping in view the evidences which have

been brought on record on behalf of the parties and in

particular the accused for imposition of a lesser

punishment. A statement of approver in regard to the

manner in which crime has been committed vis-à-vis

the role played by the accused, 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 Orissa16

“7. We are, however, of the opinion that the death

sentence in the present case was not called for. The

appellant was a labourer living in a basti alongside the

railway line and was, at the time of the incident, about

30 years of age. We also see that the entire evidence is

circumstantial in nature. Concededly, there is no

inflexible rule that a death sentence cannot be awarded

in a case resting on circumstantial evidence but courts

are as a matter of prudence, hesitant in awarding this

sentence, in such a situation. It is true that the crime

was indeed a heinous one as the victim was only five

years of age and the daughter of PW 5 who was a

neighbour of the appellant. On a cumulative

assessment of the facts, we are of the opinion that the

death sentence should be commuted into one for life.”

(Emphasis supplied)

(vi) Neel Kumar v. The State of Haryana72

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

(viii) Mahesh Dhanaji Shinde vs. State of Maharashtra74

(ix) Kalu Khan v. State of Rajasthan17

“24. In respect of award of death sentence in cases

where sole basis for conviction is circumstantial

evidence, this Court in Swamy Shraddananda v. State

of Karnataka75, has acknowledged that such cases have

far greater chances of turning out to be wrongful

convictions, later on, in comparison to ones which are

based on fitter sources of proof. This Court cautioned

that convictions based on “seemingly conclusive

circumstantial evidence” should not be presumed as

foolproof incidences and the fact that the same are

based on circumstantial evidence must be a definite

factor at the sentencing stage deliberations,

considering that capital punishment is unique in its

total irrevocability. Further, this Court observed that

any characteristic of trial, such as conviction solely

resting on circumstantial evidence, which contributes

to the uncertainty in the “culpability calculus”, must

attract negative attention while deciding maximum

penalty for murder.

(2012) 5 SCC 766

(2014) 4 SCC 317

(2014) 4 SCC 292

(2007) 12 SCC 288 para 87

25. This Court noticed certain decisions under the

American death penalty 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. State76, where

the Supreme Court of Georgia described the

applicable law in Georgia as follows:

‘By the Penal Code of this State

the punishment of murder shall

be death, except when the

conviction is founded solely on

circumstantial testimony. When

the conviction is had solely on

circumstantial testimony, then it

is discretionary with the

Presiding Judge to impose the

death penalty or to sentence the

defendant to imprisonment in the

penitentiary for life, unless the

jury … shall recommend that the

defendant be imprisoned in the

penitentiary for life; in that case

the Presiding Judge has no

discretion, but is bound to

commute the punishment from

death to imprisonment for life in

the penitentiary.’

89. Later case of Jackson v. State77, Ala at

pp. 29-30 followed the aforementioned

case. [Also see S.M. Phillipps, Famous

Cases of Circumstantial Evidence with an

Introduction on the Theory of Presumptive

Proof, 50-52 (1875).]

90. In United States v. Quinones78, F Supp

2d at p. 267 the Court remarked:

76 (1874) 52 Gs 82

77 74 Ala 26 (1883)

78 205 F Supp. 2d 256 (SDNY 2002)

‘Many States that allow the

death penalty permit a

conviction based solely on

circumstantial evidence only if

such evidence excludes to a

moral certainty every other

reasonable inference except

guilt.’”

26. In Santosh Kumar Satishbhushan Bariyar v. State

of Maharashtra70

, all the accused persons including the

appellant were unemployed young men in search of

employment. In execution of a plan proposed by the

appellant and accepted by them, they kidnapped their

friend with the motive of procuring ransom from his

family but later murdered him and after cutting his

body into pieces disposed of the same at different

places. One of the accused persons turned approver and

the prosecution case was based entirely on his

evidence. The trial court awarded death sentence to the

appellant. The High Court confirmed the death

sentence. In appeal, this Court observed that

punishment cannot be determined on grounds of

proportionality alone. This Court observed that though

there was nothing to show that the appellant could not

be reformed and rehabilitated and the manner and

method of disposal of the dead body of the deceased

reflected most foul and despicable case of murder,

mere mode of disposal of the dead body may not by

itself be made the ground for inclusion of a case in the

rarest of rare category for the purpose of imposition of

death sentence. Other factors require to be considered

along with the aforesaid. This Court was of the view

that the fact that the prosecution case rested on the

evidence of the approver, will have to be kept in mind.

Further, that where the death sentence is to be imposed

on the basis of circumstantial evidence, the

circumstantial evidence must be such which leads to an

exceptional case. It was further observed that the

discretion given to the court in such cases assumes

onerous importance and its exercise becomes

extremely difficult because of the irrevocable character

of death penalty. Where two views ordinarily could be

taken, imposition of death sentence would not be

appropriate. In the circumstances, the death sentence

was converted to life imprisonment.

… … …

30. In Mahesh Dhanaji Shinde v. State of

Maharashtra74

, the conviction of the appellant-accused

was upheld keeping in view that the circumstantial

evidence pointed only in the direction of their guilt

given that the modus operandi of the crime, homicidal

death, identity of 9 of 10 victims, last seen theory and

other incriminating circumstances were proved.

However, the Court has thought it fit to commute the

sentence of death to imprisonment for life considering

the age, socio-economic conditions, custodial

behaviour of the appellant-accused persons and that the

case was entirely based on circumstantial

evidence……

31. In the instant case, admittedly the entire web of

evidence is circumstantial. The appellant-accused’s

culpability rests on various independent evidence, such

as, him being “last seen” with the deceased before she

went missing; the extra-judicial confession of his coaccused 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; coupled with the medical evidence

which when joined together paint him in the blood of

the deceased. While the said evidence proves the guilt

of the appellant-accused and makes this a fit case for

conviction, it does not sufficiently convince the

judicial mind to entirely foreclose the option of a

sentence lesser than the death penalty. Even though

there are no missing links in the chain, the evidence

also does not sufficiently provide any direct indicia

whereby irrefutable conclusions can be drawn with

regard to the nexus between “the crime” and “the

criminal”. Undoubtedly, the aggravating

circumstances reflected through the nature of the crime

and young age of the victim make the crime socially

abhorrent and demand harsh punishment. However,

there exist the circumstances such as there being no

criminal antecedents of the appellant-accused and the

entire case having been rested on circumstantial

evidence including the extra-judicial confession of a

co-accused. These factors impregnate the balance of

circumstances and introduce uncertainty in the

“culpability calculus” and thus, persuade us that death

penalty is not an inescapable conclusion in the instant

case. We are inclined to conclude that in the present

scenario an alternate to the death penalty, that is,

imprisonment for life would be appropriate

punishment 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 of the divine and the divine’s

authority has been delegated to the human courts of law

to be only exercised in exceptional circumstances with

utmost caution. Further, that the first and foremost

effort of the Court should be to continue the life till its

natural end and the delegated divine authority should

be exercised only after arriving at a conclusion that no

other punishment but for death will serve the ends of

justice. We have critically appreciated the entire

evidence in its minutest detail and are of the considered

opinion that the present case does not warrant award of

the extreme sentence of death to the appellant-accused

and the sentence of life imprisonment would be

adequate and meet the ends of justice. We are of the

opinion that the four main objectives which the State

intends to achieve, namely, deterrence, prevention,

retribution and reformation can be achieved by

sentencing the appellant-accused for life.”

(emphasis supplied)

(x) Nand Kishore v. State of Madhya Pradesh79

“15. The learned counsel appearing for the State has placed

reliance on the judgment of this Court in Mukesh v. State

(NCT of Delhi)33

[known as Nirbhaya case] in support of

her case and submitted that applying the ratio laid down in

the aforesaid judgment, the case falls in the “rarest of rare”

cases attracting death penalty. With reference to abovesaid

arguments of the learned counsel for the State, it is to be

(2019) 16 SCC 278

noticed that the case of Mukesh33

is distinguishable on the

facts from the case on hand. It is to be noticed that Mukesh33

is a case of gang rape and murder of the victim and an

attempt to murder of the male victim. It was the specific

case of the prosecution that the crimes were carried out

pursuant to a conspiracy and the accused were convicted

under Section 120-B IPC apart from other offences.

Further, as a fact, it was found in the aforesaid case that the

accused Mukesh had been involved in other criminal

activity on the same night. Further, it is also to be noticed

that in the aforesaid case, there was a dying declaration,

eyewitness to the incident, etc. So far as the present case is

concerned, it solely rests on circumstantial evidence. It is

the specific case of the appellant that he was denied the

proper legal assistance in the matter and he is a manhole

worker. The appellant was aged about 50 years. Further, in

this case there is no finding recorded by the courts below to

the effect that there is no possibility of reformation of the

appellant. We are of the view that the reasons assigned by

the trial court as confirmed by the High Court, do not

constitute special reasons within the meaning of Section

354(3) CrPC to impose death penalty on the accused.”

(emphasis supplied)

(xi) Md. Mannan v. State of Bihar80

“57. In this case, the conviction of the petitioner is based on

circumstantial evidence and the alleged extra-judicial

confession made by the petitioner to the police in course of

investigation, on the basis of which certain recoveries were

made. There is no forensic evidence against the petitioner.

It would, in our view, be unsafe to uphold the imposition of

death sentence on the petitioner.

… … …

79. In this case, an eight-year-old innocent girl fell prey to

the carnal desire and lust of the petitioner. It is not known

whether there was any premeditation on the part of the

petitioner to murder the victim. The circumstances in which

he murdered the victim are also not known. The conviction

is based on circumstantial evidence and extra-judicial

confession made by the petitioner to the police in course of

investigation. There can be no doubt that the crime is

abhorrent, but it is doubtful as to whether the crime

(2019) 16 SCC 584

committed 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 the case, we are inclined to set aside the

capital sentence. It was stated by learned Counsel for the

Appellant that the Appellant has become the victim of his

own past and there is only circumstantial evidence against

him. We deem it proper to impose the sentence of total 25

years of imprisonment. However, death sentence is set

aside.”

(emphasis supplied)

Out 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 in

Rameshbhai Chandubhai Rathod vs. State of Gujarat82, in which the

accused was found guilty of offences punishable under Sections 363, 366,

376, 397 and 302 IPC. The victim was a student of 4th standard. The accused

was awarded death sentence. The case was based on the circumstantial

evidence and Pasayat, J. observed:-

“30. The plea that in a case of circumstantial evidence death

should not be awarded is without any logic. If the

circumstantial evidence is found to be of unimpeachable

character in establishing the guilt of the accused, that forms

the foundation for conviction. That has nothing to do with

the question of sentence as has been observed by this Court

81 MANU/SC/1125/2019

(2009) 5 SCC 740

in various cases while awarding death sentence. The

mitigating circumstances and the aggravating

circumstances have to be balanced. In the balance sheet of

such circumstances, the fact that the case rests on

circumstantial evidence has no role to play. In fact in most

of the cases where death sentence is awarded for rape and

murder and the like, there is practically no scope for having

an eyewitness. They are not committed in the public view.

By the very nature of things in such cases, the available

evidence is circumstantial evidence. If the said evidence has

been found to be credible, cogent and trustworthy for the

purpose of recording conviction, to treat that evidence as a

mitigating circumstance, would amount to consideration of

an irrelevant aspect. The plea of learned counsel for the

appellant that the conviction is based on circumstantial

evidence and, therefore, the death sentence should not be

awarded is clearly unsustainable.”

(Emphasis supplied)

Having found the appellant guilty of the concerned offences,

Pasayat, J. affirmed the award of death sentence.

Ganguly, J. agreed with Pasayat, J. on the issue of conviction but

on the question of sentence he was of the view that the proper sentence was

imprisonment for life. Ganguly, J. found that the reliance by the 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. In the present case, there is no allegation that the

appellant ever misbehaved with the deceased. In

Dhananjoy83

, prior to the date of crime, there were

many occasions when the victim had been teased by

Dhananjoy on her way to and back from her school.

The latest being on 2-3-1990, three days prior to her

death, when Dhananjoy had asked the deceased to

accompany him to watch a movie. To that the deceased

83 (1994) 2 SCC 220

protested and had told her mother about it. Then her

father had consulted some neighbours and thereafter,

filed a written complaint to the security agency which

had hired Dhananjoy and deployed in their apartment.

The agency had arranged for Dhananjoy to be

transferred to another apartment. Thus there was a

motive and a sense of revenge in the mind of

Dhananjoy in committing the crime against the

deceased.

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

“117. Keeping these principles in mind, I find that in

the instant case the appellant is a young man and his

age was 28 years old as per the version in the chargesheet. He is married and has two daughters. He has no

criminal antecedents, at least none has been brought on

record. His behaviour in general was not objectionable

and certainly not with the deceased girl prior to the

incident. The unfortunate incident is possibly the first

crime committed by the appellant. He is not otherwise

a criminal. Such a person is not a threat to the society.

His entire life is ahead of him.

… … …

120. I agree with His Lordship that the appellant has to

be convicted on other charges. However, his conviction

does not automatically lead to his death sentence. In

my humble opinion instead of death sentence a

sentence of rigorous imprisonment for life will serve

the ends of justice. With the aforesaid modification of

the sentence the appeal is dismissed to the extent

indicated above.”

The matter was, therefore, referred to a bench of three Judges

[Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat23] which did

not, in terms, disagree with the view taken by Pasayat, J. nor was there

any observation to the contrary on the issue of appreciation of a case based

on circumstantial evidence in capital punishment matters. But the bench

adopted the view taken by Ganguly, J. and stated as under:-

“9. Both the Hon’ble Judges have relied extensively on

Dhananjoy Chatterjee case83. In this case the death

sentence had been awarded by the trial court on similar

facts and confirmed by the Calcutta High Court and the

appeal too dismissed by this Court leading to the

execution of the accused. Ganguly, J. has, however,

drawn a distinction on the facts of that case and the

present one and held that as the appellant was a young

man, only 27 years of age, it was obligatory on the trial

court to have given a finding as to a possible

rehabilitation and reformation and the possibility that

he could still become a useful member of society in

case he was given a chance to do so.

10. We are, therefore, of the opinion that in the light of

the findings recorded by Ganguly, J. it would not be

proper to maintain the death sentence on the appellant.

At the same time the gravity of the offence, the

behaviour of the appellant and the fear and concern

such incidents generate in ordered society, cannot be

ignored. We, therefore, feel that a via media ought to

be adopted in the light of the judgments of this Court

in Ramraj v. State of Chhattisgarh84 and Mulla v. State

of U.P.85 In these two cases, this Court has held that the

term “imprisonment for life” which is found in Section

302 IPC, would mean imprisonment for the natural life

of the convict subject to the powers of the President

and the Governor under Articles 72 and 161 of the

Constitution of India or of the State Government under

Section 433-A of the Code of Criminal Procedure.”

39. It is also required be noted here that there was disagreement between

two Judges who heard Swamy Sharaddananda vs. State of Karnataka75

(2010) 1 SCC 573

(2010) 3 SCC 508

Sinha, J. was of the view that the accused be given life sentence while Katju,

J. affirmed the award of death sentence. The matter was therefore referred

to a bench of three Judges whose decision is reported as Swamy

Shraddananda (2)69 which found the observations of Katju, J. that “there

cannot be an absolute rule excluding death sentence in all cases of

circumstantial evidence” to be correct. The bench however formulated a

special category of sentence in paragraphs 91 to 93 of its decision.

However, the subsequent decision in Kalu Khan17 quoted with

approval paragraphs 88 to 90 from the opinion of Sinha, J when the matter

was heard by two Judges of this Court in Swamy Shraddananda75

40. These cases discussed in preceding paragraphs show that though it

is accepted that the observations in Swamy Shraddananda (2)

69 did not lay

down any firm principle that in a case involving circumstantial evidence,

imposition of death penalty would not be permissible, a definite line of

thought that where the sentence of death is to be imposed on the basis of

circumstantial evidence, the circumstantial evidence must be such which

leads to an exceptional case was accepted by a bench of three Judges of this

Court in Kalu Khan17

. As a matter of fact, it accepted the caution expressed

by Sinha J. in Swamy Shraddananda vs. State of Karnataka75 and the

conclusions in Santosh Kumar Satishbhushan Bariyar70

to restate the

principles with clarity in its decision.

100

41. It can therefore be summed up :-

a) it is not as if imposition of death penalty is impermissible to be

awarded in circumstantial evidence cases; and

b) if the circumstantial evidence is of an unimpeachable character in

establishing the guilt of the accused and leads to an exceptional case

or the evidence sufficiently convinces the judicial mind that the

option of a sentence lesser than death penalty is foreclosed, the

death penalty can be imposed.

42. It must therefore be held that merely because the instant case is based

on circumstantial evidence there is no reason to commute the death sentence.

However, the matter must be considered in the light of the aforestated

principles and see whether the circumstantial evidence is of unimpeachable

character and the option of a lesser sentence is foreclosed.

43. Before we deal with the matter from the perspective as stated above,

we must consider the submission advanced by Ms. Mathur, learned Senior

Advocate with regard to “residual doubt” as said submission also touches

upon the character of evidence.

101

44. The theory of “residual doubt” was noted for the first time by a

bench of two judges of this Court in Ashok Debbarma Alias Achak

Debbarma vs. State of Tripura18. The discussion in paragraphs 30 to 34

under the caption “residual doubt” was as under:-

“30. An accused has a profound right not to be convicted of

an offence which is not established by the evidential

standard of proof “beyond reasonable doubt”. This Court in

Krishnan v. State86, held that the

“doubts would be called reasonable if they are

free from a zest for abstract speculation. Law

cannot afford any favourite other than truth. To

constitute reasonable doubt, it must be free

from an overemotional response. Doubts must

be actual and substantial doubts as to the guilt

of the accused persons arising from the

evidence, or from the lack of it, as opposed to

mere vague apprehensions. A reasonable doubt

is not an imaginary, trivial or a merely possible

doubt, but a fair doubt based upon reason and

common sense. It must grow out of the

evidence in the case”.

In Ramakant Rai v. Madan Rai87, the above principle has

been reiterated.

31. In Commonwealth v. Webster88 at p. 320, Massachusetts

Court, as early as in 1850, has explained the expression

“reasonable doubt” as follows:

“Reasonable doubt … is not a mere possible

doubt; because everything relating to human

affairs, and depending on moral evidence, is open

to some possible or imaginary doubt. It is that

state of the case which, after the entire

comparison and consideration of all the evidence,

leaves the minds of the jurors in that condition

(2003) 7 SCC 56 : 2003 SCC (Cri) 1577

(2003) 12 SCC 395 : 2004 SCC (Cri) Supp 445

(1850) 5 Cush 295 : 52 Am Dec 711 (Mass Sup Ct)

102

that they cannot say they feel an abiding

conviction.”

In our criminal justice system, for recording guilt of the

accused, it is not necessary that the prosecution should

prove the case with absolute or mathematical certainty, but

only beyond reasonable doubt. Criminal courts, while

examining whether any doubt is beyond reasonable doubt,

may carry in their mind, some “residual doubt”, even

though the courts are convinced of the accused persons’

guilt beyond reasonable doubt. For instance, in the instant

case, it was pointed out that, according to the prosecution,

30-35 persons armed with weapons such as firearms, dao,

lathi, etc., set fire to the houses of the villagers and opened

fire which resulted in the death of 15 persons, but only

eleven persons were charge-sheeted and, out of which,

charges were framed only against five accused persons.

Even out of those five persons, three were acquitted,

leaving the appellant and another, who is absconding. The

court, in such circumstances, could have entertained a

“residual doubt” as to whether the appellant alone had

committed the entire crime, which is a mitigating

circumstance to be taken note of by the court, at least when

the court is considering the question whether the case falls

under the rarest of the rare category.

32. “Residual doubt” is a mitigating circumstance,

sometimes used and urged before the jury in the United

States and, generally, not found favour by the various courts

in the United States. In Franklin v. Lynaugh89, while

dealing with the death sentence, the Court held as follows:

“The petitioner also contends that the sentencing

procedures followed in his case prevented the

jury from considering, in mitigation of sentence,

any ‘residual doubts’ it might have had about his

guilt. The petitioner uses the phrase ‘residual

doubts’ to refer to doubts that may have lingered

in the minds of jurors who were convinced of his

guilt beyond a reasonable doubt, but who were

not absolutely certain of his guilt. Brief for

Petitioner 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 mitigating effect

to its ‘residual doubts’ about the petitioner’s

guilt. See ante at Franklin, US p. 175; post at

101 L Ed 2d 155 : 487 US 164 (1988)

103

Franklin, US p. 189. This conclusion is open to

question, however. Although the jury was

permitted to consider evidence presented at the

guilt phase in the course of answering the special

verdict questions, the jury was specifically

instructed to decide whether the evidence

supported affirmative answers to the special

questions ‘beyond a reasonable doubt’. App. 15

(emphasis added). Because of this instruction,

the jury might not have thought that, in

sentencing the petitioner, it was free to demand

proof of his guilt beyond all doubt.”

33. In California v. Brown90 and other cases, the US courts

took the view, “residual doubt” is not a fact about the

defendant or the circumstances of the crime, but a lingering

uncertainty about facts, a state of mind that exists

somewhere between “beyond a reasonable doubt” and

“absolute certainty”. The petitioner’s “residual doubt”

claim is that the States must permit capital sentencing

bodies to demand proof of guilt to “an absolute certainty”

before imposing the death sentence. Nothing in our cases

mandates the imposition of this heightened burden of proof

at capital sentencing.

34. We also, in this country, as already indicated, expect the

prosecution to prove its case beyond reasonable doubt, but

not with “absolute certainty”. But, in between “reasonable

doubt” and “absolute certainty”, a decision-maker’s mind

may wander, possibly in a given case he may go for

“absolute certainty” so as to award death sentence, short of

that he may go for “beyond reasonable doubt”. Suffice it to

say, so far as the present case is concerned, we entertained

a lingering doubt as to whether the appellant alone could

have executed the crime single-handedly, especially when

the prosecution itself says that it was the handiwork of a

large group of people. If that be so, in our view, the crime

perpetrated by a group of people in an extremely brutal,

grotesque and dastardly manner, could not have been

thrown upon the appellant alone without charge-sheeting

other group of persons numbering around 35. All the

element test as well as the residual doubt test, in a given

case, may favour the accused, as a mitigating factor.”

(Emphasis supplied)

90 93 L Ed 2d 934 : 479 US 538 (1987)

104

45. The decision of this Court in Ashok Debbarma18 was relied upon in

following decisions by benches of three judges of this Court:-

(A) In Sudam alias Rahul Kniram Jadhav v. State of Maharashtra19

the appellant was convicted of having caused the death of five persons; i.e.

the lady who was living with him as his wife, two children 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 a relevant consideration in sentencing that the evidence

in a given case is circumstantial in nature, there is no bar on

the award of the death sentence in cases based upon such

evidence (see Swamy Shraddananda v. State of

Karnataka75 and Ramesh v. State of Rajasthan91).

19.2. In such a situation, it is up to the Court to determine

whether the accused may be sentenced to death upon the

strength of circumstantial evidence, given the peculiar facts

and circumstances of each case, while assessing all the

relevant aggravating circumstances of the crime, such as its

brutality, enormity and premeditated nature, and mitigating

circumstances of the accused, such as his socio-economic

background, age, extreme emotional disturbance at the time

of commission of the offence, and so on.

19.3. In this regard, it would also be pertinent to refer to the

discussion in Ashok Debbarma v. State of Tripura86, where

this Court elaborated upon the concept of “residual doubt”

which simply means that in spite of being convinced of the

guilt of the accused beyond reasonable doubt, the Court

may harbour lingering or residual doubts in its mind

(2011) 3 SCC 685

105

regarding such guilt. This Court noted that the existence of

residual doubt was a ground sometimes urged before

American courts as a mitigating circumstance with respect

to imposing the death sentence, and noted as follows:

“33. In California v. Brown90 and other cases, the US

courts took the view, “residual doubt” is not a fact

about the defendant or the circumstances of the

crime, but a lingering uncertainty about facts, a state

of mind that exists somewhere between “beyond a

reasonable doubt” and “absolute certainty”. The

petitioner’s “residual doubt” claim is that the States

must permit capital sentencing bodies to demand

proof of guilt to “an absolute certainty” before

imposing the death sentence. Nothing in our cases

mandates the imposition of this heightened burden of

proof at capital sentencing.

34. We also, in this country, as already indicated,

expect the prosecution to prove its case beyond

reasonable doubt, but not with “absolute certainty”.

But, in between “reasonable doubt” and “absolute

certainty”, a decision-maker’s mind may wander,

possibly in a given case he may go for “absolute

certainty” so as to award death sentence, short of that

he may go for “beyond reasonable doubt”. Suffice it

to say, so far as the present case is concerned, we

entertained a lingering doubt as to whether the

appellant alone could have executed the crime singlehandedly, especially when the prosecution itself says

that it was the handiwork of a large group of people.

If that be so, in our view, the crime perpetrated by a

group of people in an extremely brutal, grotesque and

dastardly manner, could not have been thrown upon

the appellant alone without charge-sheeting other

group of persons numbering around 35. All the

element test as well as the residual doubt test, in a

given case, may favour the accused, as a mitigating

factor.”

19.4. While the concept of “residual doubt” has

undoubtedly not been given much attention in Indian capital

sentencing jurisprudence, the fact remains that this Court

has on several occasions held the quality of evidence to a

higher standard for passing the irrevocable sentence of

death than that which governs conviction, that is to say, it

has found it unsafe to award the death penalty for

convictions based on the nature of the circumstantial

106

evidence on record. In fact, this question was given some

attention in a recent decision by this Bench, in Mohd.

Mannan v. State of Bihar80, where we found it unsafe to

affirm the death penalty awarded to the accused in light of

the nature of the evidence on record, though the conviction

had been affirmed on the basis of circumstantial evidence.

… … …

“21. Evidently, even the fact that the evidence was

circumstantial in nature did not weigh very heavily on the

Court’s mind, let alone the strength and nature of the

circumstantial evidence. Be that as it may, we find that the

material on record is sufficient to convince the Court of the

petitioner’s guilt beyond reasonable doubt; however, the

nature of the circumstantial evidence in this case amounts

to a mitigating circumstance significant enough to tilt the

balance of aggravating and mitigating circumstances in the

petitioner’s favour, keeping in mind the doctrine of

prudence. Moreover, it is also possible that the incorrect

observations pertaining to Anita’s facial injuries further led

the Court to conclude in favour of imposing the death

sentence on the petitioner. Thus, we are of the considered

opinion that there was a reasonable probability that this

Court would have set aside the sentence of death in appeal,

since the only surviving evidence against the petitioner

herein pertains to his motive to commit the crime, the

circumstance of “last seen” and a solitary extra-judicial

confession. In other words, it cannot be said that the

punishment of life imprisonment is unquestionably

foreclosed in the instant case, in spite of the gravity and

barbarity of the offence.

22. We are thus compelled to conclude that the award of the

death penalty in the instant case, based on the evidence on

record, cannot be upheld.

23. At the same time, we conclude that a sentence of life

imprisonment simpliciter would be inadequate in the instant

case, given the gruesome nature of the offence, and the

menace posed to society at large by the petitioner, as

evinced by the conduct of the petitioner in jail. As per the

report submitted in pursuance of the order of this Court

dated 31-10-2018, it has been brought on record that the

conduct of the petitioner in jail has been unsatisfactory, and

that he gets aggressive and indulges in illegal activities in

prison, intentionally abusing prisoners and prison staff and

provoking fights with other prisoners. Two FIRs have also

107

been registered against the petitioner for abusing and

threatening the Superintendent of the Nagpur Central

Prison.

23.1. As this Court has already held in a catena of decisions,

by way of a via media between life imprisonment

simpliciter and the death sentence, it may be appropriate to

impose a restriction on the petitioner’s right to remission of

the sentence of life imprisonment, which usually works out

to 14 years in prison upon remission. We may fruitfully

refer to the decisions in Swamy Shraddananda (2) v. State

of Karnataka69 and Union of India v. V. Sriharan92, in this

regard. We therefore direct that the petitioner shall remain

in prison for the remainder of his life.”

(Emphasis supplied)

(B) In Ravishankar alias Baba Vishwakarma v. State of Madhya

Pradesh20

, the appellant was convicted under Sections 376, 302 and 376A

of IPC and also under the provisions of POCSO Act for having raped and

caused the murder by throttling of a 13 years old girl. The death sentence

awarded by the trial court was confirmed by the High Court but in appeal

the death sentence was substituted by this Court with imprisonment for life

with a direction that “no remission to be granted and that the appellant shall

remain in prison for rest of his life”. The relevant passages from the

decision are:-

“57. Such imposition of a higher standard of proof for

purposes of death sentencing over and above “beyond

reasonable doubt” necessary for criminal conviction is

similar to the “residual doubt” metric adopted by this Court

in Ashok Debbarma v. State of Tripura18 wherein it was

noted that: (SCC p. 763, para 31)

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

108

“31. … In our criminal justice system, for recording

guilt of the accused, it is not necessary that the

prosecution should prove the case with absolute or

mathematical certainty, but only beyond reasonable

doubt. Criminal courts, while examining whether

any doubt is beyond reasonable doubt, may carry in

their mind, some “residual doubt”, even though the

courts are convinced of the accused persons’ guilt

beyond reasonable doubt.”

58. Ashok Debbarma18 drew a distinction between a

“residual doubt”, which is any remaining or lingering doubt

about the defendant’s guilt which might remain at the

sentencing stage despite satisfaction of the “beyond a

reasonable doubt” standard during conviction, and

reasonable doubts which as defined in Krishnan v. State86

are “actual and substantive, and not merely imaginary,

trivial or merely possible”. These “residual doubts”

although not relevant for conviction, would tilt towards

mitigating circumstance to be taken note of whilst

considering whether the case falls under the “rarest of rare”

category.

59. This theory is also recognised in other jurisdictions like

the United States, where some State courts like the Supreme

Court of Tennessee in State v. McKinney93 have explained

that residual doubt of guilt is a valid non-statutory

mitigating circumstance during the sentencing stage and

have allowed for new evidence during sentencing

proceedings related to defendant’s character, background

history, physical condition, etc.

60. The above-cited principles have been minutely

observed by us, taking into consideration the peculiar facts

and circumstances of the case in hand. At the outset, we

would highlight that the High Court while confirming death

has observed that the girl was found bleeding due to forcible

sexual intercourse, which fact, however, is not supported by

medical evidence. However, such erroneous finding has no

impact on conviction under Section 376-A IPC for a bare

perusal of the section shows that only the factum of death

of the victim during the offence of rape is required, and such

death need not be with any guilty intention or be a natural

consequence of the act of rape only. It is worded broadly

enough to include death by any act committed by the

accused if done contemporaneously with the crime of rape.

93 74 SW 3d 291

109

Any other interpretation would defeat the object of ensuring

safety of women and would perpetuate the earlier loophole

of the rapists claiming lack of intention to cause death to

seek a reduced charge under Section 304 IPC as noted in

the Report of the Committee on Amendments to Criminal

Law, headed by Justice J.S. Verma, former Chief Justice of

India:

“22. While we believe that enhanced penalties in

a substantial number of sexual assault cases can

be adjudged on the basis of the law laid down in

the aforesaid cases, certain situations warrant a

specific treatment. We believe that where the

offence of sexual assault, particularly “gang

rapes”, is accompanied by such brutality and

violence that it leads to death or a persistent

vegetative state (or “PVS” in medical

terminology), punishment must be severe — with

the minimum punishment being life

imprisonment. While we appreciate the argument

that where such offences result in death, the case

may also be tried under Section 302 IPC as a

“rarest of the rare” case, we must acknowledge

that many such cases may actually fall within the

ambit of Section 304 (Part II) since the “intention

to kill” may often not be established. In the case

of violence resulting in persistent vegetative state

is concerned, we are reminded of the moving

story of Aruna Shanbaug, the young nurse who

was brutally raped and lived the rest of her life

(i.e. almost 36 years) in a persistent vegetative

state.

23. In our opinion, such situations must be treated

differently because the concerted effort to rape and

to inflict violence may disclose an intention

deserving an enhanced punishment. We have

therefore recommended that a specific provision,

namely, Section 376(3) should be inserted in the

Indian Penal Code to deal with the offence of “rape

followed by death or resulting in a persistent

vegetative state”.”

61. In the present case, there are some residual doubts in our

mind. A crucial witness for constructing the last seen

theory, PW 5 is partly inconsistent in cross-examination

and quickly jumps from one statement to the other. Two

other witnesses, PW 6 and PW 7 had seen the appellant

feeding biscuits to the deceased one year before the incident

110

and their long delay in reporting the same fails to inspire

confidence. The mother of the deceased has deposed that

the wife and daughter of the appellant came to her house

and demanded the return of the money which she had

borrowed from them but failed to mention that she

suspected the appellant of committing the crime initially.

Ligature marks on the neck evidencing throttling were

noted by PW 20 and PW 12 and in the post-mortem report,

but find no mention in the panchnama prepared by the

police. Viscera samples sent for chemical testing were

spoilt and hence remained unexamined. Although nails’

scrapings of the accused were collected, no report has been

produced to show that DNA of the deceased was present.

Another initial suspect, Baba alias Ashok Kaurav

absconded during investigation, hence, gave rise to the

possibility of involvement of more than one person. All

these factors of course have no impact in formation of the

chain of evidence and are wholly insufficient to create

reasonable doubt to earn acquittal.

62. We are cognizant of the fact that use of such “residual

doubt” as a mitigating factor would effectively raise the

standard of proof for imposing the death sentence, the

benefit of which would be availed of not by the innocent

only. However, it would be a misconception to make a costbenefit comparison between cost to society owing to

acquittal of one guilty versus loss of life of a perceived

innocent. This is because the alternative to death does not

necessarily imply setting the convict free.

63. As noted by the United States Supreme Court in

Herrera v. Collins94, “it is an unalterable fact that our

judicial system, like the human beings who administer it, is

fallible”. However, death being irrevocable, there lies a

greater degree of responsibility on the court for an in-depth

scrutiny of the entire material on record. Still further,

qualitatively, the penalty imposed by awarding death is

much different than in incarceration, both for the convict

and for the State. Hence, a corresponding distinction in

requisite standards of proof by taking note of “residual

doubt” during sentencing would not be unwarranted.

64. We are thus of the considered view that the present case

falls short of the “rarest of rare” cases where the death

sentence alone deserves to be awarded to the appellant. It

appears to us in the light of all the cumulative circumstances

that the cause of justice will be effectively served by

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

111

invoking the concept of special sentencing theory as

evolved by this Court in Swamy Shraddananda (2)69 and

approved in Sriharan case92.”

46. Since reference was made in the aforestated decisions of this Court

to certain decisions of US Supreme Court, we may now consider those

decisions and some other decisions of US Supreme Court on the point and

whether the theory of “residual doubt” has found acceptance in the decisions

of US Supreme Court.

A] California vs. Brown90

(a) The relevant facts noted in the opinion of the Court delivered by

Chief Justice Rehnquist were:-

“Respondent Albert Brown was found guilty by a jury of

forcible rape and first-degree murder in the death of 15-

year-old Susan J. At the penalty phase, the State presented

evidence that respondent had raped another young girl some

years prior to his attack on Susan J. Respondent presented

the testimony of several family members, who recounted

respondent’s peaceful nature and expressed disbelief that

respondent was capable of such a brutal crime. Respondent

also presented the testimony of a psychiatrist, who stated

that Brown killed his victim because of his shame and fear

over sexual dysfunction. Brown himself testified, stating

that he was ashamed of his prior criminal conduct and

asking for mercy from the jury.”

While instructing the jury to consider the aggravating and mitigating

circumstances and to weigh them in determining the appropriate penalty,

the trial Court had cautioned the jury-

112

“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 Eighth and

Fourteenth Amendments by the Supreme Court of California which

decision was reversed by US Supreme Court as under: -

“We hold that the instruction challenged in this case does

not violate the provisions of the Eighth and Fourteenth

Amendments to the United States Constitution. The

judgment of the Supreme Court of California is therefore

reversed, and the cause is remanded for further proceedings

not inconsistent with this opinion.”

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

“Because the individualized assessment of the

appropriateness of the death penalty is a moral inquiry into

the culpability of the defendant, and not an emotional

response to the mitigating evidence, I agree with the Court

that an instruction informing the jury that they “must not

be swayed by mere sentiment, conjecture, sympathy,

passion, prejudice, public opinion or public feeling” does

not by itself violate the Eighth and Fourteenth

Amendments to the United States Constitution. At the

same time, the jury instructions – taken as a whole – must

clearly inform the jury that they are to consider any

relevant mitigating evidence about a defendant’s

background and character, or about the circumstances of

the crime.”

joined) dissented and observed:-

“The prosecutor in this case thus interpreted the

antisympathy instruction to require that the jury ignore the

defendant’s evidence on the mitigating factors of his

character and upbringing. A similar construction has been

placed on the instruction in several other cases.”

113

(d) Justice Blackmun (with whom Justice Marshall joined) also

dissented and stated: -

“The sentencer’s ability to respond with mercy towards a

defendant has always struck me as a particularly valuable

aspect of the capital sentencing procedure. …….

….In my view, we adhere so strongly to our belief that

sentencers should have the opportunity to spare a capital

defendant’s life on account of compassion for the individual

because, recognizing that the capital sentencing decision

must be made in the context of “contemporary values,”

Gregg v. Georgia, 428 U.S., at 181, 96 S.Ct., at 2928

(opinion of Stewart, POWELL, and STEVENS, JJ.), we see

in the sentencer’s expression of mercy a distinctive feature

of our society that we deeply value.”

Thus, the entire discussion was confined to the validity of the

instruction given to the Jury and the issue of “residual doubt” never arose

for consideration.

B] Franklin v. Lynaugh89

The jury had found Franklin guilty of capital murder. At the

conclusion of penalty hearing, the trial court submitted two “Special Issues”

to the jury, instructing the jury that if they determined the answer to both

these questions to be “Yes,” Franklin would be sentenced to death. The

issues were:

“Do you find from the evidence beyond a reasonable doubt

that the conduct of the Defendant, Donal Gene Franklin,

that caused the death of Mary Margaret Moran, was

114

committed deliberately and with the reasonable expectation

that the death of the deceased or another would result?

Do you find from the evidence beyond a reasonable doubt

that there is a probability that the Defendant, Donald Gene

Franklin, would commit criminal acts of violence that

would constitute a continuing 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, including any aspect of the Defendant’s character

or record, and any of the circumstances of the commission

of the offense …. may be sufficient to cause you to have a

reasonable doubt as to whether or not the true answer of any

of the Special Issues is “Yes”; and in the event such

evidence does cause you to have such a reasonable doubt,

you should answer the Issue “No””

The request of Franklin was rejected and the jury answered both

special issues in affirmative whereafter the trial Court imposed death

sentence. In Federal habeas action filed by Franklin, the submission was

recorded:-

“Petitioner first suggests that the jury may, in its penalty

deliberations, have harbored “residual doubts” about three

issues considered in the guilt phase of his trial: first,

petitioner’s identity as the murderer; second, the extent to

which petitioner’s actions (as opposed to medical

mistreatment) actually caused the victim’s death; and third,

the extent to which petitioner’s actions were intended to

result in the victim’s death.”

(a) The decision of the Court was delivered by Justice White and the

question was formulated as under:-

115

“In this case, we are called on to determine if the Eighth

Amendment required a Texas trial court to give certain jury

instructions, relating to the consideration of mitigating

evidence, that petitioner had requested in the sentencing

phase of his capital trial”

Rejecting the challenge it was observed:-

“At the outset, we note that this Court has never held that a

capital defendant has a constitutional right to an instruction

telling the jury to revisit the question of his identity as the

murderer as a basis for mitigation.

… … …

Our edict that, in a capital case, " 'the sentencer . . . may not

be precluded from considering, as a mitigating factor, any

aspect of a defendant's character or record and any of the

circumstances of the offense,' " Eddings v. Oklahoma, 455

U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982)

(quoting Lockett, 438 U.S., at 604, 98 S.Ct., at 2964), in no

way mandates reconsideration by capital juries, in the

sentencing phase, of their "residual doubts" over a

defendant's guilt. Such lingering doubts are not over any

aspect of petitioner's "character," "record," or a

"circumstance of the offense." This Court's prior decisions,

as we understand them, fail to recognize a constitutional

right to have such doubts considered as a mitigating factor."

b) Justice O’Connor (with whom Justice Blackmun joined) authored

a concurring judgement and the submission of Franklin was noted as

under:-

“Petitioner also contends that the sentencing procedures

followed in his case prevented the jury from considering, in

mitigation of sentence, any “residual doubt[s]” it might

have had about his guilt. Petitioner uses the phrase “residual

doubts” to refer to doubts that may have lingered in the

minds of jurors who were convinced of his guilt beyond a

reasonable doubt, but who were not absolutely certain of his

guilt. Brief for Petitioner 14. The plurality and dissent reject

petitioner's “residual doubt” claim because they conclude

116

that the special verdict questions did not prevent the jury

from giving mitigating effect to its “residual doubts” about

petitioner's guilt. See ante at 2328: post, at 2335. This

conclusion is open to question, however. Although the jury

was permitted to consider evidence presented at the guilt

phase in the course of answering the special verdict

questions, the jury was specifically instructed to decide

whether the evidence supported affirmative answers to the

special questions “beyond a reasonable doubt.” App. 15

(emphasis added). Because of this instruction, the jury

might not have thought that, in sentencing the petitioner, it

was free to 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, not

because the Texas scheme allowed for consideration of

"residual doubt" by the sentencing body, but rather because

the Eighth Amendment does not require it. Our cases do not

support the proposition that a defendant who has been

found to be guilty of a capital crime beyond a reasonable

doubt has a constitutional right to reconsideration by the

sentencing body of lingering doubts about his guilt. We

have recognized that some States have adopted capital

sentencing procedures that permit defendants in some cases

to enjoy the benefit of doubts that 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.2d 137 (1986), but we

have never indicated that the Eighth Amendment requires

States to adopt such procedures. To the contrary, as the

plurality points out, we have approved capital sentencing

procedures that preclude consideration by the sentencing

body of "residual doubts" about guilt. See ante, at 2327, n.

The footnote reads thus:-

“Finding a constitutional right to rely on a guilt-phase jury’s “residual doubts” about

innocence when the defense presents its mitigating case in the penalty phase is arguably

inconsistent with the common practice of allowing penalty-only trials on remand of

cases where a death sentence-but not the underlying conviction-is struck down on

appeal. See, e.g. Scott v. State, 310 Md. 277, 301, 529 A.2d 340, 352 (1987); Stringer

v. State, 492 A.2d 928, 946 (Miss.1986); Whalen v. State, 492 A.2d 552, 569

(Del.1985). Cf. 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 a method of

proceeding 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 the

appropriate relief in this case, asked only that he be “resentenced in a proceeding that

117

Our decisions mandating jury consideration of mitigating

circumstances provide no support for petitioner's claim

because "residual doubt" about guilt is not a mitigating

circumstance. We have defined mitigating circumstances as

facts about the defendant's character or background, or the

circumstances of the particular offense, that may call for a

penalty less than death. 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 a fact about the

defendant or the circumstances of the crime. It is instead a

lingering uncertainty about facts, a state of mind that exists

somewhere between "beyond a reasonable doubt" and

"absolute certainty." Petitioner's "residual doubt" claim is

that the States must permit capital sentencing bodies to

demand proof of guilt to "an absolute certainty" before

imposing the death sentence. Nothing in our cases mandates

the imposition of this heightened burden of proof at capital

sentencing.

(Emphasis supplied)

During the course of her judgment, Justice O’Connor also made

following observations: -

“In my view, the principle underlying Lockett96, Eddings97

and Hitchcock98 is that punishment should be directly

related to the personal culpability of the criminal defendant.

“Evidence about the defendant’s background and character

is relevant because of the belief, long held by this society,

that defendants who commit criminal acts that are

attributable to a disadvantaged background, or to emotional

and mental problems, may be less culpable than defendants

comports with requirements of Lockett” – not that he be retried in full so as to have the

benefit 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 a

defendant’s Eighth Amendment rights. Yet such is the logical conclusion of petitioner’s

claim of a constitutional right to argue “residual doubts” to a capital sentencing jury.”

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)

455 U.S. 104, 102 S.Ct. 869. 71 L.Ed.2d 1 (1982)

481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987)

118

who have no such excuse…. Thus, the sentence imposed at

the penalty stage should reflect a reasoned moral response

to the defendant’s background, character, and crime.”

California v. Brown, 479 U.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 a State may not

constitutionally prevent the sentencing body from giving

effect to evidence relevant to the defendant’s background

or character or the circumstances of the offense that

mitigates against the death penalty. Indeed, the right to

have the sentencer consider and weigh relevant mitigating

evidence would be meaningless unless the sentencer was

also permitted to give effect to its consideration.

Under the sentencing procedure followed in this case the

jury could express its views about the appropriate

punishment only by answering the special verdict questions

regarding the deliberations of the murder and the

defendant’s future dangerousness. To the extent that the

mitigating evidence introduced by petitioner was relevant

to one of the special verdict questions, the jury was free to

give effect to that evidence by returning a negative answer

to that question. If, however, petitioner had introduced

mitigating evidence about his background or character or

the circumstances of the crime that was not relevant to the

special verdict questions, or that had relevance to the

defendant’s moral culpability beyond the scope of the

special verdict questions, the jury instructions would have

provided the jury with no vehicle for expressing its

“reasoned moral responds” to that evidence.”

… … …

Noting in Lockett or Eddings requires that the sentencing

authority be permitted to give effect to evidence beyond the

extent to which it is relevant to the defendant’s character or

background or the circumstances of the offense.”

Justice Brennan and Justice Marshall) stated: -

“In requiring that the discretion of the sentencer in capital

sentencing be guided, we have never suggested that the

sentencer’s discretion could be guided by blinding it to

119

relevant evidence. The hallmark of a sentencing scheme

that sufficiently guides and directs the sentencer is the

presence of procedures that “require the jury to consider the

circumstances of the crime and the criminal before it

recommends sentence.” Id., at 197, 96 S.Ct., at 2936. The

requirement that the State not bar the sentencer from

considering any mitigating aspect of the offense or the

offender only furthers the goal of focusing the sentencer’s

attention on the defendant and the particular circumstances

of the crime.”

C] Herrera Vs. Collins94

The syllabus prepared by the Reporter of Decisions summed up the

facts as under :-

“On the basis of proof which included two eyewitness

identifications, numerous pieces of circumstantial

evidence, and petitioner Herrera’s handwritten letter

impliedly admitting his guilt, Herrera was convicted of the

capital murder of Police Officer Carrisalez and sentenced to

death in January 1982. After pleading guilty, in July 1982,

to the related capital murder of Officer Rucker, Herrera

unsuccessfully challenged the Carrisalez conviction on

direct appeal and in two collateral proceedings in the Texas

state courts, and in a federal habeas petition. Ten years after

his conviction, he urged in second federal habeas

proceeding that newly discovered evidence demonstrated

that he was “actually innocent” of the murders of Carrisalez

and Rucker, and that the Eighth Amendment’s prohibition

against cruel and unusual punishment and the Fourteenth

Amendment’s due process guarantee therefore forbid his

execution. He supported this claim with affidavits tending

to show that his now-dead brother had committed the

murders. The District Court, inter alia, granted his request

for a stay of execution so that he could present his actual

innocence claim and the supporting affidavits in state court.

In vacating the stay, the Court of Appeals held that the

claim was not cognizable on federal habeas absent, an

accompanying federal constitutional violation.”

120

Rejecting federal habeas petition preferred by Herrera, Chief Justice

Rehnquist delivered the opinion of the Court and stated: -

“… … In capital cases, we have required additional

protections because 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 a lesser offense). All of these

constitutional safeguards, of course, make it more difficult

for the State to rebut and finally overturn the presumption

of innocence which attaches to every criminal defendant.

But we have also observed that “ due process does not

require that every conceivable step be taken, at whatever

cost, 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 but paralyze our system for enforcement of the

criminal law.

… … …

Petitioner asserts that this case is different because he has

been sentenced to death. But we have “refused to hold that

the fact that a death sentence has been imposed requires a

different standard of review on federal habeas corpus.”

Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770,

106 L.Ed.2d 1 91989) (plurality opinion). We have, of

course, held that the Eighth Amendment requires increased

reliability of the process by which capital punishment may

be imposed. See, e.g., McKoy v. North Carolina, 494

U.S.433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)

(unanimity requirement impermissibly limits jurors’

consideration of mitigating evidence); Eddings v.

Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1

(1982) (jury must be allowed to consider all of a capital

defendant’s mitigating character evidence); Lockett v. Ohio,

438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973

(1978|) (plurality opinion) (same). But petitioner’s claim

does not fit well into the doctrine of these cases, since, as

we have pointed out, it is far from clear that a second trial

10 years after the first trial would produce a more reliable

result.

Perhaps mindful of this, petitioner urges not that he

necessarily receive a new trial, but that his death sentence

simply be vacated if a federal habeas court deems that a

satisfactory showing of “actual innocence” has been made.

Tr. Of Oral Arg. 19-20. But such a result is scarcely logical;

petitioner’s claim is not that some error was made in

121

imposing a capital sentence upon him, but that a

fundamental error was made in finding him guilty of the

underlying murder in the first place. It would be a rather

strange jurisprudence, in these circumstances, which held

that under our Constitution he could not be executed, but

that he could spend the rest of his life in prison.

… … …

Executive clemency has provided “fail safe” in our criminal

justice system. K. Moore, Pardons: Justice, Mercy, and the

Public Interest 131 (1989). It is an unalterable fact that our

judicial system, like the human beings who administer it, is

fallible. But history is replete with examples of wrongfully

convicted persons who have been pardoned in the wake of

after-discovered evidence establishing their

innocence……”

Justice O’Connor (joined by Justice Kennedy) delivered a concurring

opinion. Justice Scalia (joined by Justice Thomas) also rendered a concurring

opinion. Another concurring opinion was rendered by Justice White, while

Justice Blackmun (joined by Justice Stevens and Justice Souter) dissented.

D] Oregon vs. Guzek99

The syllabus prepared by the Reporter of Decisions stated the facts as

under :-

“At the guilt phase of respondent Guzek’s capital murder

trial, his mother was one of two witnesses who testified that

he had been with her on the night the crime was committed.

He was convicted and sentenced to death. Twice, the

Oregon Supreme Court vacated the sentence and ordered

new sentencing proceedings, but each time Guzek was

again sentenced to death. Upon vacating his sentence for a

third time, the State Supreme Court held that the Eighth and

Fourteenth Amendments provide Guzek a federal

546 US 517 (2006)

122

constitutional right to introduce live alibi testimony from

his mother at the upcoming resentencing proceeding. After

this Court granted certiorari, Guzek filed a motion to

dismiss the writ as improvidently granted.”

The decision of the Oregon Supreme Court was reversed by US

Supreme Court. The opinion of the Court was delivered by Justice Breyer

with following observations:-

“4. As our discussion in Part II, supra, makes clear, the

federal question before us is a narrow one. Do the Eighth

and Fourteenth Amendments grant Guzek a constitutional

right to present evidence of the kind he seeks to introduce,

namely, new evidence that shows he was not present at the

scene of the crime. That evidence is inconsistent with

Guzek's prior conviction. It sheds no light on the manner in

which he committed the crime for which he has been

convicted. Nor is it evidence that Guzek contends was

unavailable to him at the time of the original trial. And, to

the extent it is evidence he introduced at that time, he is free

to introduce it now, albeit in transcript form. Ore.Rev.Stat.

§ 138.012(2)(b) (2003). We can find nothing in the Eighth

or Fourteenth Amendments that provides a capital

defendant a right to introduce new evidence of this kind at

sentencing.

We cannot agree with the Oregon Supreme Court that our

previous cases have found in the Eighth Amendment a

constitutional right broad enough to encompass the

evidence here at issue. In Lockett v. Ohio, supra, a plurality

of this Court decided that a defendant convicted of acting in

concert with others to rob and to kill could introduce at the

sentencing stage evidence that she had played a minor role

in the crime, indeed, that she had remained outside the shop

(where the killing took place) at the time of the crime. A

plurality of the Court wrote that,

“the Eighth and Fourteenth Amendments

require that the sentencer ... not be precluded

from considering, as a mitigating factor, any

aspect of a defendant's character or record

and any of the circumstances of the offense that

the defendant proffers as a basis for a sentence

less than death.” Id., at 604, 98 S.Ct.

2954 (emphasis added and deleted).

123

And in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869,

71 L.Ed.2d 1, the Court majority adopted this statement.

See also 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, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (plurality

opinion).

But the evidence at issue in these cases was traditional

sentence-related evidence, evidence that tended to

show how, not whether, the defendant committed the

crime. Nor was the evidence directly inconsistent with the

jury's finding of guilt.”

Justice Scalia (joined by Justice Thomas) delivered a concurring

opinion

E] Abdul Kabir vs. Quarterman100

In this case, the theory of “residual doubt” did not come up for

consideration. However in the judgement of the Court delivered by Justice

Stevens, the opinion of Justice O’Connor in Franklin vs. Lynaugh89 was

referred to as under:-

“What makes Franklin significant, however, is the separate

opinion of Justice O’Connor, and particularly those

portions of her opinion expressing the views of five

Justices, see infra, at 1668 – 1669, and n.15. After

summarizing the cases that clarified Jurek’s holding she

worte:

“In my view, the principle underlying

Lockett, Eddings, and Hitchcock is that

punishment should be directly related to the

personal culpability of the criminal

defendant.

“Evidence about the defendant’s background and character

is relevant because of the belief, long held by this society,

that defendants who commit criminal acts that are

100 550 US 233 (2007)

124

attributable to a disadvantaged 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 a reasoned 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) (emphasis

in original).

“In light of this principle it is clear that a State may not

constitutionally prevent the sentencing body from giving

effect to the evidence relevant to the defendant’s

background or character or the circumstances of the offense

that mitigates against the death penalty. Indeed, the right

to have the sentencer consider and weigh relevant

mitigating evidence would be meaningless unless the

sentencer was also permitted to give effect to its

consideration.

“Under the sentencing procedure followed in this case the

jury could express its views about the appropriate

punishment only by answering the special verdict questions

regarding the deliberateness of the murder and the

defendant’s future dangerousness. To the extent that the

mitigating evidence introduced by petitioner was relevant

to one of the special verdict questions, the jury was free to

give effect to that evidence by returning a negative answer

to that question. If, however, petitioner had introduced

mitigating evidence about his background or character or

the circumstances of the crime that was not relevant to the

special verdict questions, or that had relevance to the

defendant’s moral culpability beyond the scope of the

special verdict questions, the jury instructions would 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)

(emphasis added).”

47. We may also note the decision of the Supreme Court of Tennessee

in State vs. Mckinney93, as it was referred to in the decision of this Court in

Ravishankar alias Baba Vishwakarma vs. State of Madhya Pradesh20

125

In that case, the Defence Counsel sought to refer to the evidence from

the “Guilt Phase” of the trial during his closing argument in the sentencing

phase of the trial. Whether the decision in not permitting him to do so was

correct, was the issue.

The opinion of the Court observed: -

“Residual doubt evidence,” in general, may consist of proof

admitted during the sentencing phase that indicates the

defendant did not commit the offense, notwithstanding the

jury’s verdict following the guilt phase. …..”

… … …

“In contrast, the present case does not involve a

resentencing procedure, nor does it involve a defendant’s

effort to introduce evidence of residual doubt. Instead, the

defendant only sought to argue evidence that had already

been admitted by the trial court and heard by the same jury

in the guilt phase of the trial. …..”

… … …

“…..Moreover, given that this was not a resentencing

hearing, the reality is that the sentencing jury had already

heard the testimony underlying defense counsel’s proposed

argument and had reconciled it in favor of the State’s theory

of guilt and against the defendant’s theory of innocence. ...”

It was concluded: -

“….. (4) the trail court’s refusal to allow defense counsel to

refer to evidence from the guilt phase of the trial during his

closing argument in the sentencing phase of the trial did not

affect the jury’s determination to the prejudice of the

defendant and was harmless error. …..”

48. The principles that emerge from the decisions of U.S. Supreme

Court are: -

126

(i) “….this Court has never held that a capital defendant

has a constitutional right to an instruction telling the jury to

revisit the question of his identity as the murderer as a basis

for mitigation.….”

Justice White speaking for the Court in Franklin vs. Lynaugh89

(ii) “….Our edict that, in a capital case, " 'the sentencer .

. . [may] not be precluded from considering, as a mitigating

factor, any aspect of a defendant's character or record and

any of the circumstances of the offense,' ….. in no way

mandates reconsideration by capital juries, in the

sentencing phase, of their "residual doubts" over a

defendant's guilt. ..."

Justice White speaking for the Court in Franklin vs. Lynaugh89

(iii) “…… Our cases do not support the proposition

that a defendant who has been found to be guilty of a capital

crime beyond a reasonable doubt has a constitutional right

to reconsideration by the sentencing body of lingering

doubts about his guilt…..”

Justice O’Connor in concurring opinion in Franklin vs.

Lynaugh89

(iv) “… we have approved capital sentencing procedures

that preclude consideration by the sentencing body of

"residual doubts" about guilt. …”

Justice O’Connor in concurring opinion in Franklin vs.

Lynaugh89

(v) “…..Our decisions mandating jury consideration of

mitigating circumstances provide no support for petitioner's

claim because "residual doubt" about guilt is not a

mitigating circumstance. …..”

127

Justice O’Connor in concurring opinion in Franklin vs.

Lynaugh89

(vi) "… Residual doubt" is not a fact about the defendant

or the circumstances of the crime. It is instead a lingering

uncertainty about facts, a state of mind that exists

somewhere between "beyond a reasonable doubt" and

"absolute certainty." Petitioner's "residual doubt" claim is

that the States must permit capital sentencing bodies to

demand proof of guilt to "an absolute certainty" before

imposing the death sentence. Nothing in our cases mandates

the imposition of this heightened burden of proof at capital

sentencing. (Emphasis added)”

Justice O’Connor in concurring opinion in Franklin vs.

Lynaugh89

(vii) “…In capital cases, we have required additional

protections because of the nature of the penalty at stake. …..

(jury must be given option of convicting the defendant of a

lesser offense). All of these constitutional safeguards, of

course, make it more difficult for the State to rebut and

finally overturn the presumption of innocence which

attaches to every criminal defendant. But we have also

observed that “due process does not require that every

conceivable step be taken, at whatever cost, to eliminate the

possibility of convicting an innocent person.” ….. To

conclude otherwise would all but paralyze our system for

enforcement of the criminal law.”

Chief Justice Rehnquist speaking for the Court in Herrera Vs.

Collins94

(viii) “…..It would be a rather strange jurisprudence, in

these circumstances, which held that under our Constitution

he could not be executed, but that he could spend the rest of

his life in prison. …..”

Chief Justice Rehnquist speaking for the Court in Herrera Vs.

Collins94

(ix) “….. Do the Eighth and Fourteenth Amendments

grant Guzek a constitutional right to present evidence of the

kind he seeks to introduce, namely, new evidence that

shows he was not present at the scene of the crime. That

128

evidence is inconsistent with Guzek's prior conviction. It

sheds no light on the manner in which he committed the

crime for which he has been convicted. …..”

Justice Breyer speaking for the Court in Oregon vs. Guzek99

(x) “….. But the evidence at issue in these cases was

traditional sentence-related evidence, evidence that tended

to show how, not whether, the defendant committed the

crime. Nor was the evidence directly inconsistent with the

jury's finding of guilt. …..”

Justice Breyer speaking for the Court in Oregon vs. Guzek99

(xi) “The sentencer’s ability to respond with mercy

towards a defendant has always struck me as a particularly

valuable aspect of the capital sentencing procedure. …….”

The observations in the dissenting opinion of Justice Blackmun in

California vs. Brown90

49. Following features from these decisions of U.S. Supreme Court are

noteworthy: -

(A) As the decision in California vs. Brown90 discloses, the jury trial

comprises of two phases. The first is called “Guilt Phase” where the

question for determination is whether the offence as alleged has been

proved by the prosecution which is akin to “conviction stage” in our

jurisprudence; while the second phase is called “Penalty Phase” at which

stage the question for consideration is about the appropriate penalty to be

129

awarded when the guilt is established which is similar to “sentence stage”

in our jurisprudence.

In both the phases, the basic issues are to be dealt with by jurors who

are drawn from cross sections of the society, while the function for such

determination and consideration in our jurisprudence is entrusted to judicial

officers adequately trained and appropriately equipped with practical

experience. A jury is likely to be swayed by emotions or sentiments, which

is why the caution was given to the jury by the trial court in California vs.

Brown90

. But that element or possibility gets ruled out when an experienced

judicial officer is entrusted with the requisite task.

(B) Secondly, there can be fresh sentencing procedure on as many as

four occasions as the decision in Oregon vs. Guzek99 shows or the process

of challenge may take considerable time as the decision in Herrera vs.

Collins94 discloses. Naturally, there would be some time gap between two

phases, possibly leading to a situation where the composition of the jury at

the “Penalty Phase” may not be same as it was at the “Guilt Phase”.

Consequently, the attempts on part of the defence to highlight any area or

aspect in the evidence which could be said to be doubtful in the hope that

there could be a change in perception. This possibility again does not arise

in our jurisprudence, as the same judicial officer who heard and decided the

130

matter at the conviction stage is to decide the matter at the sentence stage

and without any undue lapse of time.

to lead evidence. Whether such leading of evidence may also include

evidence touching upon the identity of the Accused or his role in the

transaction or any matter concerning evidence leading to determination of

his guilt were the issues in Oregon vs. Guzek99 and the portion extracted

from that decision shows the approach adopted by US Supreme Court. In

our jurisprudence, if there be any new evidence which may go to the root

of the matter, leading of such evidence can be permitted at the appellate

stage subject to fulfilment of governing principles.

These features are only illustrative to say that the theory of “residual

doubt” that got developed was a result of peculiarity in the process adopted.

Even then, what is material to note is that the theory has consistently been

rejected by U.S. Supreme Court and as stated by Justice O’Connor: -

“Nothing in our cases mandated the imposition of this heightened burden

of proof at capital sentencing”.

50. (A) In Ashok Debbarma18

, after noticing the decisions of US

Supreme Court in California vs. Brown90

and in Franklin vs. Lynaugh89

131

it was observed that “residual doubt” as a mitigating circumstance 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 have executed

the crime single-handedly, especially when the prosecution itself says that it

was handiwork of a large group of people”. Thus, the doubt that was

entertained was not about the guilt of the accused simpliciter or about his

involvement in the crime but whether the appellant alone could have

committed the crime which resulted in the death of as many as 35 persons

and such doubt weighed with the Court while commuting death sentence to

imprisonment for life.

It must be stated here that what was paraphrased in paragraph 33 of

the decision was the relevant portion from the opinion of Justice O’Connor

in Franklin v. Lynaugh89 and not from the decision in California v.

Brown90.

(B) In Sudam alias Rahul Kaniram Jadhav v. State of

Maharashtra19, it was noted in paragraph 19.1 that there would be no bar

on the award of death sentence in cases based on circumstantial evidence.

Thereafter, the decision in Ashok Debbarma18 was considered and the

Court observed that in several cases, “quality of evidence to a higher

standard” was insisted upon for passing the irrevocable sentence of death

132

and reliance was placed on the decision in Mohd. Mannan vs. State of

Bihar80. The deduction in paragraph 21 rested inter alia on the aspect that

“the nature of the circumstantial evidence in this case amounts to a

circumstance significant enough to tilt the balance of aggravating and

mitigating circumstances in the petitioner’s favour”.

it was observed that “imposition of a

higher standard of proof for the purposes of death sentencing over and

above beyond reasonable doubt necessary for criminal conviction is similar

to the residual doubt metric adopted by this Court in Ashok Debbarma vs.

State of Tripura18…”. In this case, as per paragraph 10 of the decision,

blood samples of six suspects were sent for DNA analysis but only DNA

profile from the blood of the appellant matched with that from the vaginal

slide of the deceased. Additionally, reliance was placed by the prosecution

on the testimony of PWs 5, 6 and 7, as set out in paragraphs 17 and 18. The

reason why the version coming from PWs 5, 6 and 7 could not inspire

complete confidence was dealt with in paragraph 61. It was further

observed that another suspect Baba alias Ashok Kaurav having absconded

during investigation, there was possibility of involvement of more than one

person, giving rise to the same safety filter adopted in Ashok Debbarma18

51. These cases thus show that the matters were considered from the

standpoint of individual fact situation where, going by the higher or stricter

133

standard for imposition of death penalty, alternative to death sentence was

found to be appropriate.

52. When it comes to cases based on circumstantial evidence in our

jurisprudence, the standard that is adopted in terms of law laid down by this

Court as noticed in Sharad Birdhichand Sarda34 and subsequent decisions

is that the circumstances must not only be individually proved or

established, but they must form a consistent chain, so conclusive as to rule

out the possibility of any other hypothesis except the guilt of the accused.

On the strength of these principles, the burden in such cases is already of a

greater magnitude. Once that burden is discharged, it is implicit that any

other hypothesis or the innocence of the accused, already stands ruled out

when the matter is taken up at the stage of sentence after returning the

finding of guilt. So, theoretically the concept or theory of “residual doubt”

does not have any place in a case based on circumstantial evidence. As a

matter of fact, the theory of residual doubt was never accepted by US

Supreme Court as discussed earlier.

However, as summed up in Kalu Khan17

, while dealing with cases

based on circumstantial evidence, for imposition of a death sentence, higher

or stricter standard must be insisted upon. The approach to be adopted in

matters concerning capital punishment, therefore ought to be in conformity

134

with the principles culled out in paragraph 41 hereinabove and the instant

matter must therefore be considered in the light of those principles.

53. If the present case is so considered, the discussion must broadly be

classified under following two heads: -

(A) Whether the circumstantial evidence in the present case is of

unimpeachable character in establishing the guilt of the Appellant or leads

to an exceptional case.

(B) Whether the evidence on record is so strong and convincing that the

option of a sentence lesser than a death penalty is foreclosed.

Going by the circumstances proved on record and, more particularly

the facets detailed in paragraph 19 hereinabove as well as the law laid down

by this Court in series of decisions, the circumstances on record rule out any

hypothesis of innocence of the Appellant. The circumstances are clear,

consistent and conclusive in nature and are of unimpeachable character in

establishing the guilt of the Appellant. The evidence on record also depicts

an exceptional case where two and half years old girl was subjected to sexual

assault. The assault was accompanied by bites on the body of the victim.

The rape was of such intensity that there was merging of vaginal and anal

orifices of the victim. The age of the victim, the fact that the Appellant was

a maternal uncle of the victim and the intensity of the assault make the

present case an exceptional one.

135

However, if the case is considered against the second head, we do

not find that the option of a sentence lesser than death penalty is completely

foreclosed. It is true that the sexual assault was very severe and the conduct

of the Appellant could be termed as perverse and barbaric. However, a

definite pointer in favour of the Appellant is the fact that he did not

consciously cause any injury with the intent to extinguish the life of the

victim. Though all the injuries are attributable to him and it was injury

No.17 which was the cause of death, his conviction under Section 302 IPC

is not under any of the first three clauses of Section 300 IPC. In matters

where the conviction is recorded with the aid of clause fourthly under

Section 300 of IPC, it is very rare that the death sentence is awarded. In cases

at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the Chart tabulated in

paragraph 30 hereinabove, where the victims were below 16 years of age

and had died during the course of sexual assault on them, the maximum

sentence awarded was life sentence. This aspect is of crucial importance

while considering whether the option of a sentence lesser than death penalty

is foreclosed or not.

54. We therefore, find that though the Appellant is guilty of the offence

punishable under Section 302 IPC, since there was no requisite intent as

would bring the case under any of the first three clauses of Section 300 IPC,

the offence in the present case does not deserve death penalty.

136

55. The second count on which death sentence has been imposed is

under Section 376A of IPC. As noted earlier, the offence was committed on

11.02.2013 and just few days before such commission, Section 376A was

inserted in IPC by the Ordinance. As concluded by us in paragraph 16

hereinabove, the ex-post facto effect given to Section 376A inserted by the

Amendment Act would not in any way be inconsistent with sub-Article (1)

of Article 20 of the Constitution. The Appellant is thus definitely guilty of

the offence punishable under Section 376A IPC. But the question remains

whether punishment lesser than death sentence gets ruled out or not. As

against Section 302 IPC while dealing with cases under Section 376A IPC,

a wider spectrum is available for consideration by the Courts as to the

punishment to be awarded. On the basis of the same aspects that weighed

with us while considering the appropriate punishment for the offence under

Section 302 IPC, in view of the fact that Section 376A IPC was brought on

the statute book just few days before the commission of the offence, the

Appellant does not deserve death penalty for said offence.

At the same time, considering the nature and enormity of the

offence, it must be observed that the appropriate punishment for the offence

under Section 376A IPC must be rigorous imprisonment for a term of 25

years.

137

56. In view of the aforestated conclusions drawn by us, it is not

necessary to deal with the submissions IV, V, VI, VII, VIII and IX, advanced

by Ms. Mathur, learned Senior Advocate in respect of the issue of sentence.

57. Consequently, while affirming the view taken by the Courts below

in recording conviction of the Appellant for the offences punishable under

Sections 302 IPC and 376A IPC, we commute the sentence to life

imprisonment for the offence punishable under Section 302 IPC and to that

of rigorous imprisonment for 25 years for the offence punishable under

Section 376A IPC. The conviction and sentence recorded by the Courts

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.

……………………J.

(Uday Umesh Lalit)

……………………J.

(Indu Malhotra)

…………………….J.

(Krishna Murari)

New Delhi;

November 02, 2020.

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