Case: SHATRUGHNA BABAN MESHRAM Vs. STATE OF MAHARASHTRA

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 Sarda (1984) 4 SCC 116 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 Khan (2015) 16 SCC 492 paras 16, 23 and 31 , 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 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. 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. 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. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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,(C) The situation obtaining after 02.04.2013: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 persons 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 persons natural life. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that persons 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 persons 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 persons 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 persons 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 persons 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 persons 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.The law on the point is clear from the following observations of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (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 Maharashtra (1973) 2 SCC 793  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.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 Analysers 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;(c) No malkhana report or evidence was produced on record to 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.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.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 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 Another (1976) 4 SCC 382  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.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 offenders 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 300A 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 —(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(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 Kerala AIR 1966 SC 1874 is an apt illustration of this point.18. In Virsa Singh v. State of Punjab AIR 1958 SC 465 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 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 case AIR 1958 SC 465 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.27. The guiding principles were summed up in State of Madhya Pradesh v. Ram Prasad (1968) 2 SCR 522  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 (2019) 13 SCALE 187 . 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 Singh (1980) 2 SCC 684 , 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:-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 India (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 Punjab (1976) 4 SCC 190  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 Punjab (1976) 4 SCC 190  was thereafter considered by a bench of three judges of this Court in Dagdu v. State of Maharashtra (1977) 3 SCC 68 . 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 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 Karnataka (2017) 4 SCC 124 . (ix) Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 paras 16, 23 and 3124. 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 Karnataka (2007) 12 SCC 288  para 87, 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.25. This Court noticed certain decisions under the American death penalty jurisprudence as follows: (Swamy Shraddananda case (2007) 12 SCC 288  para 87, SCC pp. 320-21, paras 88-90)88. One of the older cases in this league dates back to 1874, Merritt v. State (1874) 52 Gs 82, 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. State 74 Ala 26 (1883), 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. Quinones 205 F Supp. 2d 256 (SDNY 2002), F Supp 2d at p. 267 the Court remarked: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 Maharashtra (2009) 6 SCC 498 , 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 Maharashtra (2014) 4 SCC 292 , 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-accuseds 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 deceaseds 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 divines 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.40. These cases discussed in preceding paragraphs show that though it is accepted that the observations in Swamy Shraddananda (2) (2008) 13 SCC 767  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 Khan (2015) 16 SCC 492 paras 16, 23 and 31 . As a matter of fact, it accepted the caution expressed by Sinha J. in Swamy Shraddananda vs. State of Karnataka (2007) 12 SCC 288  para 87 and the conclusions in Santosh Kumar Satishbhushan Bariyar (2009) 6 SCC 498  to restate the principles with clarity in its decision.41. It can therefore be summed up :-