Supreme Court of India

Shatrughna Baban Meshram vs The State Of Maharashtra on 2 November, 2020

Author:
Uday Umesh Lalit

Bench:
Uday Umesh Lalit
,
Vineet Saran
,
S. Ravindra Bhat
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

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals by Special Leave challenge the common judgment

and order dated 12.10.2015 passed by the High Court 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 Court  in

Special Case (POCSO Act) 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.

Signature Not Verified

Digitally signed by Dr.

Mukesh Nasa

Date: 2020.11.03

17:55:07 IST

Reason:

 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 father-in-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 XXX 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

(c) Which of the injuries injuries mentioned
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
,
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 post-mortem 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 Code. However, the record is not clear whether Vikas

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

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

to him was replied as under:-

 The
Code of Criminal Procedure
, 1973
“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,
father-in-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. 774, 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 only depraved and debased, but can have a
menacing effect on the society”.

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

 (2011) 3 SCC 306
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 Punjab
 and
Machhi
Singh and others v. State of Punjab
(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
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

 (1980) 2 SCC 684
 (1983) 3 SCC 470
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 Maharashtra
(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. 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

 (2015) 6 SCC 652
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
extreme 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
,
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) …..

(c) …..

(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
,
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) …..

(c) …..

(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 sub-

section (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) …..

(c) …..

(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
sub-section (1) of sub-section (2) of section 376 and in the
course of such commission inflicts an injury which causes
the death of the 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
,
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) …..

(c) …..

(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 sub-

section (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) …..

(c) …..

(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
sub-section (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
of the POCSO Act, at the time when the offence

was committed in the instant case, provided: -
“5: Aggravated penetrative sexual assault-

a) …..

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 life-

threatening 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,

(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

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 sub-section (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 Bihar, Malkiat Singh and others v.

State of Punjab and Ajay Pandit v. State of Maharashtra, 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 Assam
,
Sebastian @

Chevithiyan v. State of Kerala
,
Purna Chandra Kusal v. State of

Orissa
and
Kalu Khan v. State of Rajasthan
, 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 Tripura
,
Sudam v. State
of

Maharashtraand Ravishankar alias
Baba Vishwakarma vs. State

of Madhya Pradesh
, it was submitted that even if the circumstances

 (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
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.

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

through Government of NCT of Delhi, 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 Punjab
,

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 Gujarat
,
Amit v.

State of U.P.
and
Sunil v. State of M.P.
, 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
 (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
factor in his favour as held by this Court in
Sunil Damodar

Gaikwad v. State of Maharashtra
.

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 Gujarat ,

Mahesh Dhanaji Shinde v. State of Maharashtra
.

,
Santosh

Kumar Singh v. State of M.P.
 and
Shyam Singh @ Bhima v. State

of Madhya Pradesh
, 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 Karnataka and subsequent cases, the mere fact that the

 (2014) 1 SCC 129 para 20
 (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
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

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 Maharashtra
), and in
Mukesh and Another v. State

( NCT of Delhi) and Others
, 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
 (2017) 6 SCC 631
 (2017) 6 SCC 1
the Appellant. The law on the point is clear from the following

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

Maharashtra
,

“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
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

 (1984) 4 SCC 116
 (1973) 2 SCC 793
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 5th 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, 5 th 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 6 th 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;

(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 7 th 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-a-

half-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
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
of the IPC

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

Punnayya and Another
as under:-

 (1976) 4 SCC 382
“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 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 Subject to certain exceptions
culpable homicide if culpable homicide is murder
the act by which the if the act by which the death
death is caused is done is caused is done —
—

INTENTION

(a)With the intention of (1) With the intention of
causing death; or causing death; or

(b) With the (2) With the intention of
intention of causing causing such bodily injury as
such bodily injury as is the offender knows to be
likely to cause death; or 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 (4) With the knowledge that
cause death 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 is an apt illustration of this
point.

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

 AIR 1966 SC 1874
 AIR 1958 SC 465
“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
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 Prasad
, 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:-

 (1968) 2 SCR 522
“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. 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 Maharashtra


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

 (2015) 7 SCC 641
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 Maharashtra
.

D) In
State of Haryana vs. Krishan and Another
, where 36

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

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.

 (2020) 2 SCC 693
 (2017) 8 SCC 204
26.1 In State of Orissa vs. Dibakar Naik and Others , 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

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.

 (2002) 5 SCC 323
(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 (A-7) 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 Another
,

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

 (2001) 1 SCC 652
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
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
IPC though it is 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 Punjab
, 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

 (2006) 12 SCC 79
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 Kumar
.

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
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
)
Age of the Victim : 1½ years

ii) Ramesh Harijan vs. State of Uttar Pradesh
Age of the Victim : 5-6 years

iii) Ram Deo Prasad vs. State of Bihar
Age of the Victim : 4 years

 (2003) 1 ACR 627 (SC) = JT 2002 (7) SC 635
 (2001) 2 SCC 28
 (2012) 5 SCC 777
 (2013) 7 SCC 725
iv) Ramesh vs. State
through Inspector of Police
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 Maharashtra
 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

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

 (2014) 9 SCC 392
 (2019) 13 SCALE 187
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 Maharashtra51
.

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

The Cases are:-
S. Judgement Bench Age of Cause of Death of Whether Sentence
No Reported at Strength the the Victim Death lesser than
Cause Title Victim Accused Convicted Sentence Death
under Sections Imposed? Sentence

1. (1981) 3 SCC 3 Judges 16 years Injury to Neck with Yes
324 Kirpan
Kuljeet Singh @ S.302 r/w S.34 IPC
Ranga v. Union Ss. 363, 365, 366 and
of India 376 r/w S. 34 IPC

2. (1991) 1 SCC 2 Judges 6 years Strangulation Yes
752 Ss. 302, 376 IPC
Jumman Khan v.

State of U.P.

3. (1994) 3 SCC 2 Judges 7 years Asphyxia by Yes
381 throttling

Laxman Naik v. Ss.
376, 302
IPC

State of Orissa

4. (1996) 6 SCC 2 Judges 7 years Strangulation Yes
250 Ss. 363, 376, 302 and
Kamta Tiwari v. 201 IPC
State of M.P.

5. (1997) 1 SCC 2 Judges 16 years Throttling Life
272 Ss.302, 376 IPC
State of A.P. v.

Gangula Satya
Murthy

6. (1999) 4 SCC 2 Judges 14 years Strangulation Life
108 Ss.376, 302
IPC

Kumudi Lal v.
S. 3(ii)(v)
of the
State of U.P. SC&ST Act, 1989

7. (1999) 6 SCC 60 2 Judges Age not Asphyxia Life
Akhtar vs. State specified Ss. 302, 376 IPC
of U.P.

8. (1999) 9 SCC 3 Judges 16 years Strangulation Yes
581 Ss. 376(2)(g), 302/34
Molai v. State of and 201 IPC
M.P.

9. (2000) 1 SCC 2 Judges 4 years Smothering Life
471 Ss.302,376
IPC

State of
Maharashtra v.

Suresh
10 (2001) 1 SCC 2 Judges 4 years Intracranial damage Life
. 652 consequent to surface
State, Govt. of force impact to the
NCT of Delhi v. head, subdural
Sunil haematoma causing
subarachnoid
haemorrhage
Ss. 376 and 377 r/w

S.34
, S. 304 Part II
r/w
S. 34
IPC
11. (2001) 2 SCC 28 2 Judges 1 ½ Haemorrhagic shock Life
Mohd. Chaman v. years consequent to liver
State (NCT of injury inflicted in the
Delhi) process of committing
rape
Ss. 302 and 376
IPC

12 (2001) 9 SCC 50 2 Judges 11 years Shock and Life
. Raju v. State of haemorrhage as a
Haryana result of injuries
(Blows by brick to the
head and mouth)
Ss. 302, 376, 363
IPC

13 (2001) 9 SCC 2 Judges 6 years Pressing nose and Life
. 615 mouth and obstructing

Bantu v. State
of breath
M.P. Ss. 302, 376
IPC

14 (2002) 1 SCC 2 Judges 3 years Massive cerebral Life
. 622 haemorrhage resulting
State of from the head injury
Maharashtra v. Ss. 302, 376, 201
IPC

Bharat Fakira
Dhiwar
15 (2002) 1 SCC 2 Judges 11 years Throttling Life
. 731 Ss. 376(2)(f), 302 and
Ganesh Lal v. 404
IPC

State of
Rajasthan
16 JT 2002 (7) SC 2 Judges 16 years Suffocation 10 years
. 635 Ss. 304(Part II)/376 RI
State of A.P. v. T.
IPC

Prasanna Kumar
17 (2003) 10 SCC 3 Judges 14 years Strangulation Life
. 185 Ss. 302, 376
IPC

Subramani v.
State

18 (2003) 8 SCC 93 2 Judges 11-12
Strangulation Life
. Amit v. State
of years Ss. 302, 376
IPC

Maharashtra
19 (2004) 10 SCC 2 Judges 10 years Throttling Life
. 616 Ss. 302, 376 and 201
State of U.P. v.
IPC

Devendra Singh

20 2005 (3) SCC 2 Judges -- -- Life
. 131 Ss. 302, 376, 201
IPC

State of
Maharashtra v.
Mansingh

21 (2005) 3 SCC 2 Judges Less Smothering Yes
. 114 than 6 Ss. 302, 363, 366,
State of U.P. v. years 376(2)(f), 201
IPC

Satish

22 (2005) 3 SCC 2 Judges Minor Asphyxia Life
. 127 Ss. 363, 376 and 302
Surendra Pal
IPC

Shivbalakpal v.
State of Gujarat
23 (2006) 9 SCC 2 Judges 10 years Strangulation Life
. 278 Ss. 302, 376
IPC

State of U.P. v.
Desh Raj
24 (2006) 12 SCC 2 Judges 7/8 years Bleeding from vulva Life
. 79 as a result of rape
Amrit Singh v. Ss. 376 and 302
IPC

State of Punjab
25 (2007) 11 SCC 2 Judges 7/8 years Asphyxia resulting Life
. 467 from inhalation of
Bishnu Prasad semisolid watery

Sinha v. State
of substances
Assam Ss. 376(2)(g), 302 and
201 r/w
S. 34
IPC
26 (2008) 7 SCC 3 Judges 5 years Strangulation Yes Refer to
. 561 10 years Ss. 363, 376, 302 and 26A.

Accused “X” v. 201
IPC

State of
Maharashtra
26 (2019) 7 SCC 1 3 Judges 5 years Strangulation Commuted
A. Accused “X” v. 10 years Ss. 363, 376, 302 and to Life
State of 201
IPC
Sentence
Maharashtra
27 (2008) 11 SCC 2 Judges 5 years Shock and Yes
. 113 haemorrhage as a

Bantu v. State
of result of injuries due
U.P. to insertion of the
wooden stick into the
vagina
Ss. 364, 376 and 302

IPC

28 (2008) 15 SCC 2 Judges 9 years Strangulation Yes
. 269 Ss. 302, 376(2)(f)
IPC

Shivaji @ Dadya
Shankar Alhat v.
State of
Maharashtra

29 (2009) 15 SCC 3 Judges 6 years Strangulation Life
. 259 Ss. 302/34,
Ss. 376,
Pawan v. State
of 377, Ss. 201/34
IPC

Uttaranchal

30 (2010) 1 SCC 58 2 Judges 2 years Combined effects of Life
. Sebastian v. State drowning and blunt
of Kerala injuries sustained
around nose and
mouth
Ss. 302, 364, 369,
376(2)(f), 392, 449

IPC

31 (2010) 2 SCC 2 Judges 5 years
Strangulation Life
. 583 Ss. 302, 376, 201
IPC

Aftab Ahmad
Anasari v. State
of Uttaranchal

32 (2011) 2 SCC 3 Judges Class IV Neurogenic shock Life
. 764 student – because of sexual
Rameshbhai aged 10 intercourse and
Chandubhai years multiple injuries.

Rathod (2) v. Ss. 363, 366, 376,
State of Gujarat 302, 397
IPC

33 (2011) 5 SCC 2 Judges 7 years Asphyxia and Yes Refer to
. 317 haemorrhage as a 33A.

Mohd. Mannan v. result of strangulation
State of Bihar Ss. 366, 376, 201, 302

IPC

33 (2019) 16 SCC 3 Judges 7 years Asphyxia and Commuted
A. 584 haemorrhage as a to Life
Mohd. Mannan v. result of strangulation Sentence
State of Bihar Ss. 366, 376, 201, 302

IPC

34 (2011) 4 SCC 80 2 Judges Many Cooked, body parts Yes
. Surendra Koli v. Children consumed
State of U.P. Ss. 302, 364, 376
IPC

35 (2011) 15 SCC 2 Judges 5 years Asphyxia Life
. 352 Ss. 302, 376
IPC

Purna Chandra
Kusal v. State of
Orissa
36 (2011) 12 SCC 2 Judges 10 years Strangulation Life
. 56 Haresh Ss. 302, 376
IPC

Mohandas Rajput
v. State of
Maharashtra
37 (2012) 4 SCC 2 Judges 3 years Been hit on her head Life
. 107 and her left side of the

Amit v. State
of face, strangulated,
U.P. unnatural offence and
rape was committed
on her
Ss. 364, 376, 377, 302
and 201
IPC

38 (2013) 9 SCC 2 Judges 10 years -- Life
. 795 Ss. 376(2) and 302
Chhote Lal v.
State of M.P.
39 (2012) 5 SCC 2 Judges 4 years Asphyxia because of Life
. 766 throttling
Neel Kumar v. Ss. 302/376(2)(f) and

State of Haryana 201

40 (2012) 5 SCC 2 Judges 5-6 Shock and Life
. 777 years haemorrhage as a
Ramesh Harijan result of ante-mortem
v. State of U.P. vaginal injuries.
Ss. 302, 376
41 (2012) 4 SCC 37 2 Judges 3 years Cause of death was Yes Refer to
. Rajendra rape and asphyxia 41A.

Pralhadrao Wasnik Ss. 376(2)(f), 377 and
v. State of 302
IPC

Maharashtra

41 (2019) 12 SCC 2 Judges 3 years Cause of death was Commuted
A. 460 rape and asphyxia to Life
Rajendra Ss. 376(2)(f), 377 and Sentence
Pralhadrao 302
IPC

Wasnik v. State
of Maharashtra

42 (2012) 7 SCC 2 Judges Not Death caused by rape, Life
. 699 given strangulation
Kashinath Ss. 376 and 302
IPC

Mondal v. State
of W.B.

43 (2012) 9 SCC 2 Judges 11 years Asphyxia due to Life
. 742 strangulation and also
State of U.P. v. due to pre-mordial
Munesh injuries
Ss. 302, 376
IPC

44 (2013) 5 SCC 2 Judges 11 years Asphyxia due to Life
. 546 strangulation
Shankar Kisanrao Ss. 302, 376, 366-A
Khade v. State of and 363 r/w
S.34
IPC
Maharashtra

45 (2013) 7 SCC 2 Judges 4 years Excessive Life
. 725 haemorrhage leading
Ram Deo Prasad to shock from ante-
v. State of Bihar mortem injuries
around genitalia and
private parts by some
sexual offences
Ss. 376, 302
IPC

46 (2013) 10 SCC 2 Judges Below 5 Asphyxia due to Life
. 721 years strangulation
State of Ss. 302, 376, 201
IPC

Rajasthan v.
Jamil Khan

47 (2014) 5 SCC 2 Judges 14 years Asphyxia as a result Life
. 353 of strangulation
Rajkumar v. State Ss. 302, 376, 450
IPC

of Madhya
Pradesh

48 (2014) 9 SCC 2 Judges 8 years Neurogenic shock due Life
. 392 to rape
Ramesh v. State Ss. 376, 302, 201
IPC

49 (2014) 12 SCC 3 Judges 9 years Injury on the head Life
. 274 (from a cot)
Selvam v. State Ss. 302, 376, 379 and
IPC

50 (2015) 2 SCC 2 Judges 10 years Throttling Life
. 783 Ss. 376, 302 and 201
Duryodhan Rout
IPC

v. State of Orissa
51 (2015) 1 SCC 3 Judges 4 years Cause of death was Yes
. 253 head injury, Also refer
Vasanta Sampat associated with the to 51A.

Dupare v. State
injury on the genital
of Maharashtra region
Ss. 302, 376(2)(f),
363, 367, 201
IPC

51 (2017) 6 SCC 3 Judges 4 years Cause of death was Confirms
A. 631 head injury, Death
Vasanta Sampat associated with the Penalty
Dupare v. State injury on the genital
of Maharashtra region
Ss. 302, 376(2)(f),
363, 367, 201
IPC

52 (2015) 2 SCC 2 Judges 7 years Homicidal death on Convicted
. 775 account of injury on but
Darga Ram v. head Sentence
State of Ss. 376, 302
IPC
set aside
Rajasthan (Juvenile)
53 (2015) 16 SCC 3 Judges 4 years Extensive injuries at Life
. 492 neck and other vital
Kalu Khan v. parts of the body
State of Ss. 363, 364, 376(2)
Rajasthan (f), 302, 201
IPC

54 (2016) 3 SCC 19 2 Judges Not Burn injuries Life
. State of Assam v. Estd.

Ss. 376, 302, 454
IPC

Ramen Dowarah (Young)
55 (2016) 9 SCC 2 Judges Not Face crushed with Life
. 325 mention stones
Kadamanian v. ed (Corresponding
State injuries on head)
Ss. 302, 376, 404, 201

IPC

56 (2016) 9 SCC 3 Judges 7 years Asphyxia from Life
. 675 choking out the throat
Tattu Lodhi v. by strangulation of
State of Madhya the neck
Pradesh Ss. 302,364,363,
376(2)(f)/511 & 201

IPC

57 (2017) 4 SCC 3 Judges 4 years Strangulation/Asphyx Life
. 393 ia

Sunil v. State of Ss.
302, 363, 367,
Madhya Pradesh 376(2)(f)
IPC

58 (2019) 8 SCC 3 Judges 5 years Ante-mortem Life
. 371 drowning
Sachin Kumar Ss. 376-A, 302 and
Singhraha v. 201 Part II
IPC

State of Madhya Ss.5 (i) and 5(m) r/w
Pradesh S.6 of POCSO Act
59 (2019) 13 SCC 3 Judges Not Head injury with Life
. 640 mention compression of neck
Babasaheb ed Ss. 302, 376(2)(f),
Maruti Kamble v. 342
IPC

State of
Maharashtra
60 (2019) 16 SCC 3 Judges 9 years Drowning Life
. 380 Ss. 302, 376(2)(f) and
Raju Jagdish 201
IPC

Paswan v. State
of Maharashtra
61 (2019) 16 SCC 3 Judges 8 years -- Life
. 278 Ss. 302, 363, 366 and
Nand Kishore v. 376(2)(i)
IPC

State of Madhya
Pradesh
62 (2019) 4 SCC 3 Judges 7 ½ Asphyxia due to Life
. 210 years throttling
Vijay Raikwar v. Ss. 376(2)(f), 201
IPC

State of M.P. Ss.5(i), 5(m) and 5(r)
r/w
S.6
POCSO Act
63 (2019) 8 SCC 3 Judges Minor Asphyxia as a result Life
. 382 of strangulation
Parsuram v. State Ss. 302, 376
of M.P.
64 2019 (13) 3 Judges 5 years Asphyxia due to Life
. SCALE 187 smothering,
Dattatraya v. associated with head
State of injuries and sexual
Maharashtra assault
Ss. 302, 376(2)(f),
IPC
r/w Ss. 3, 4
and 5 POCSO
65 (2019) 7 SCC 10 years Drowning Yes
. 716 3 Judges Ss. 376(2)(f) & Also refer
Manoharan v. 376(2)(g), 302, 201 to 65A.

State IPC
65 2019 (14) 3 Judges 10 years Drowning Confirms
A. SCALE 800 Ss. 376(2)(f) & Death
Manoharan v. 376(2)(g), 302, 201 Penalty
State IPC
66 (2019) 9 SCC 3 Judges 2 years Throttling Yes
. 622 Ss. 302, 363, 376, 377
Ravi S/o Ashok IPC
Ghumare v. State
of Maharashtra
67 (2019) 9 SCC 3 Judges 13 years Throttling Yes
. 689 Ss. 363, 366, 376(2)
Ravishankar v. (i), 376(2)(n), 376(2)
State of M.P. (j), 376(2)(m), 376-A,
302 and 201 IPC

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) 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
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

 (2014) 9 SCC 737
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
 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

Maharashtra
. 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
 (1976) 4 SCC 190
 (1977) 3 SCC 68
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 Karnataka31.

32.
In
Allauddin Mian v. State of Bihar
11, 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 Maharashtra
13, 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 Karnataka 31, 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 Punjab, 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 sub-
section is not confined merely to hearing oral
submissions but extends to giving an

 (1977) 3 SCC 218
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 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 Bihar
, yet another three-

Judge 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 recorded 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.” ”

 (2013) 10 SCC 421

State of Bihar v. Deepak Rai
, 2010 SCC OnLine Pat 949
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 Bihar
11,

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 Chhattisgarh
, 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.”

 (2020) 4 SCC 451

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 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 Pradesh
 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
 (1952) SCR 1091
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 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 Madras
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

 (1957) SCR 981 – This was, however, not a case of death sentence.
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 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 Another
; 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

 (1991) 1 SCC 752
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 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) :-

“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. 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

 (1994) 6 SCC 186
 (1994) 4 SCC 478
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 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.

(iv) Molai and Another vs. State of M.P.

(v) Shivaji alias
Dadya Shankar Alhat vs. State of

Maharashtra
; while affirming the conviction and sentence of death

for offences under
Sections 376
and
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,

 (1996) 6 SCC 250
 (1999) 9 SCC 581
 (2008) 15 SCC 269
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, 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. State

“23. ….. The entire chain of events has been made out
and despite this being a case of circumstantial evidence,
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
,
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 Bengal
:-

“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
:-

 (2019) 7 SCC 716
 (2007) 12 SCC 230
“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.

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 Karnataka

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.

 (2008) 13 SCC 767
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
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

Maharashtra 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 Nadu was distinguished thus:-

“161. Mr Adsure has placed strong reliance on a
decision of this Court in
Mohan v. State of T.N.71
to
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.”
 (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.
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.
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 Haryana

(
vii) Sushil Sharma vs. State (NCT of Delhi
)

(
viii) Mahesh Dhanaji Shinde vs. State of Maharashtra

(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 Karnataka
, 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
 (2012) 5 SCC 766
 (2014) 4 SCC 317
 (2014) 4 SCC 292
 (2007) 12 SCC 288 para 87
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 75, SCC pp. 320-21, paras
88-90)

“88.
One of the older cases in this league
dates back to 1874, Merritt v. State, 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.’

 (1874) 52 Gs 82
89. Later case of Jackson v. State, 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, 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 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

 74 Ala 26 (1883)
 205 F Supp. 2d 256 (SDNY 2002)
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 co-accused before PW 1 and the village
members; corroborative testimonies of the said village
members to the extra-judicial confession and recovery
of the deceased’s body; 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 Pradesh

“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 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 Bihar

“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

 (2019) 16 SCC 278
 (2019) 16 SCC 584
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 committed by the petitioner can be termed as “rarest
of the rare”.

(emphasis supplied)

(xii) Dileep Bankar v. State of M.P.

“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 Gujarat
, in which the

 MANU/SC/1125/2019
 (2009) 5 SCC 740
accused was found guilty of offences punishable under
Sections 363
,
,
,
and
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 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.
, 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 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 charge-
sheet. 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
 (1994) 2 SCC 220
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 Gujarat
23] 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 Chhattisgarh
and

Mulla v. State of U.P. In
these two cases, this Court
 (2010) 1 SCC 573
 (2010) 3 SCC 508
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
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
. 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.

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.

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. State
, 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 Rai
, the above principle has
been reiterated.

 (2003) 7 SCC 56 : 2003 SCC (Cri) 1577
 (2003) 12 SCC 395 : 2004 SCC (Cri) Supp 445
31. In Commonwealth v. Webster 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 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. Lynaugh, 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,
 (1850) 5 Cush 295 : 52 Am Dec 711 (Mass Sup Ct)
 101 L Ed 2d 155 : 487 US 164 (1988)
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 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. Brown 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

 93 L Ed 2d 934 : 479 US 538 (1987)
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)

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 Rajasthan
).

 (2011) 3 SCC 685
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 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 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.”

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
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 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. Sriharan
, 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
,
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

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

“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. McKinney 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.

 74 SW 3d 291
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. 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
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 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
cost-benefit 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. Collins, “it is an unalterable fact that our
judicial system, like the human beings who administer it,

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

“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.”
(c) Justice Brennan (with whom Justice Marshall and Justice

Stevens 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.”

(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 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:-

“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 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. 6.

 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
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: -

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
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.”
“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
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, 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.”

… … …

 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)
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.”

(c) The dissenting opinion authored by Justice Stevens (joined by

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
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.”

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
,
, 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 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. Guzek

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 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.

 546 US 517 (2006)
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).

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. Quarterman

In this case, the theory of “residual doubt” did not come up for

consideration. However in the judgement of the Court delivered by Justice

 550 US 233 (2007)
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
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
.

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: -

(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. …..”

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
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

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 matter at the conviction stage is to decide the matter at the

sentence stage and without any undue lapse of time.

(C) At the “Penalty Phase”, the Prosecutor and the Defence are

allowed 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,

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

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”.

(C) In Ravishankar20 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 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 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.

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.