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              REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1439 OF 2013

PURUSHOTTAM DASHRATH BORATE & ANR. …APPELLANT(S) VERSUS

STATE OF MAHARASHTRA     …RESPONDENT(S)

J U D G M E N T H.L. DATTU, CJI. 1. This  appeal  is  directed  against  the judgment  and  order,  passed  by  the  High  Court  of Judicature for Maharashtra at Bombay in Confirmation Case  No.1  of  2012  and  Criminal  Appeal  No.632  of 2012, dated 12.09.2012, 13.09.2012, 24.09.2012 and 25.09.2012. By the impugned judgment and order, the High Court has confirmed the judgment of conviction and  order  of  sentence  passed  by  the  Court  of

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Sessions  Judge,  Pune  in  Sessions  Case  No.284  of 2008, dated 20.03.2012, whereby the learned Sessions Judge has convicted the accused-appellants for the offence under Sections 302, 376(2)(g), 364 and 404 read with Section 120-B of the Indian Penal Code, 1860 (for short, “the IPC”) and consequently awarded death sentence. 2. The Prosecution case in a nutshell is: The deceased was residing with her brother-in-law and  sister,  namely  PW-12  and  PW-13  respectively, along with their minor son, in a flat in Pune City. She was serving as an Associate in the BPO Branch of Wipro Company in Pune (for short, “the Company”) for about  a  year,  where  she  used  to  work  in  the night-shift, i.e. from 11:00 p.m. to 09:00 a.m. The fateful day was to be her last day since she had tendered  her  resignation  one  month  prior.  The Company had arranged for and hired a private cab service  to  transport  its  employees  from  their

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residence  to  the  workplace  and  back  at  the conclusion of their respective work-shifts. Further, to  ensure  the  safety  and  security  of  its  female employees the Company imposed a mandatory condition, upon the owner of the cab, that a security guard be present in the said vehicle, if a female employee was being transported. 3. On  the  fateful  day,  being  01.11.2007, the cab was deputed to pick up the deceased from her residence  at  10:30  p.m.,  following  which  the  cab would collect three other employees of the Company. As per the usual practice, at about 10:15 p.m., the deceased received a missed call from the driver of the cab, Purushottam Borate, namely Accused No.1, informing her of the pick-up. The deceased called back the Accused No.1 to pick her up in 10 minutes to take her to the workplace, upon which PW-12 and his son went down from their flat to drop her to the cab. At the time of the pick-up, Pradeep Kokade,

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namely Accused No.2, was sitting in the rear seat behind the driver. The next employee to be collected by the cab was one Sagar Bidkar, i.e. PW-11, and the expected  time  of  the  said  pick  up  was  at  about 10:45 p.m. 4. During the journey, between 10:30 p.m. and 11:00 p.m., the deceased received calls on her mobile phone by one Jeevan Baral, a friend of the deceased residing in Bangalore, namely PW-14, who heard the former questioning the Accused No.1 as to where he was taking the cab, why he had stopped in a jungle and what he was doing. Thereafter, the phone call  between  the  deceased  and  PW-14  was  abruptly disconnected and subsequent attempts by the latter to call the deceased were rendered futile as her mobile phone was found to be switched off. Further, PW-14 was unable to contact either the Pune Police or the relatives of the deceased in Pune till the following day.

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5. It is the case of the prosecution that the Accused No.1 and 2, being aware of the fact that the deceased would be travelling to her workplace that night and that she would be the first to be collected, under the guise of taking the deceased to the said workplace, hatched a conspiracy to abduct her and take her to a secluded spot. The prosecution has alleged that, in the time period between the abrupt  end  to  the  aforementioned  phone  call  with PW-14 and the pick-up of PW-11 at about 12:45 a.m., the Accused No.1 and 2 committed the heinous offence of gang-rape and thereafter murdered her by means of strangulating her with her own Odhani, slashing her wrist  with  a  blade  and  smashing  her  head  with  a stone. Further, that the accused-appellants stripped the deceased of her possessions and money and then left her body in the field of one Kisan Bodke. 6. Thereafter,  the  cab  in  question,

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containing the Accused No.1 and 2, arrived at about 12:45 a.m.,  i.e. delayed by nearly two hours, to pick up PW-11 from his residence. At the time, the deceased  was  no  longer  present  in  the  cab.  The Accused  No.1  informed  the  PW-11  that  neither  the deceased nor the other employees had come for work that day and the cause of the delay was on account of a punctured tyre. The Accused No.2 vacated the cab  shortly  before  the  Accused  No.1  brought  the PW-11 to the workplace. 7. On  the  following  morning,  being 02.11.2007,  one  Pankaj  Laxman  Bodke,  i.e.  PW-8, noticed the dead  body  of a female on the boundary of the field of Kisan Bodke and therefore informed one Hiraman Bodke,  i.e. PW-1, of the same. PW-1, after verifying the information, informed the Police Station, Talegaon Dabhade, where an FIR was promptly lodged. Therefore, an offence under Section 302 of the IPC was registered and the spot panchanama was

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prepared in the presence of PW-3. Inquest report and panchanama was also prepared in the presence of PW-2 and thereafter the body of the deceased was sent for post-mortem  examination.  Furthermore,  bloodstained stone, a pair of ladies sandal, bloodstained blade, soil mixed with blood and sample soil was seized from the spot of the incident. The clothes found on the  body  of  the  deceased,  after  the  post-mortem examination, were also duly seized. Dr. Waghmare, i.e. PW-16,  who  performed  the  post-mortem examination,  gave  the  opinion  that  the  cause  of death  was  due  to  shock  and  hemorrhage  due  to grievous  injuries  to  vital  organs  with  skull fracture involving frontal, left temporal, parietal bone with laceration to brain with fractured ribs, right lung ruptured with strangulation. Further, on the basis of the report of the Chemical Analyzer, PW-16  gave  the  opinion  that  the  deceased  was  a victim of the offence of rape prior to her death.

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8. In the meanwhile, on 02.11.2007 itself, due to the fact that the deceased had not returned home the next day, her sister,  i.e. PW-13, started to make enquiries as to her whereabouts. PW-13 was informed by the Company that the deceased had not reported  to  the  workplace  on  the  previous  night. Further,  PW-13  received  information,  from  PW-14, about  the  events  pertaining  to  the  telephonic conversation with the deceased between 10:30 p.m. and 11:00 p.m. on that fateful night. Therefore, a missing persons report was immediately filed that evening itself in the Chatushringi Police Station. 9. On  03.11.2007,  PW-12  and  PW-13  were informed that a dead body has been recovered within the  jurisdiction  of  the  Talegaon  Dabhade  Police Station.  Consequently,  the  said  PW-12  and  PW-13 reached the Police Station and on the basis of a photograph  of  the  body  of  the  deceased  and  the

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clothes  that  were  seized,  they  confirmed  the identity of the deceased. Furthermore, the PW-12 and PW-13 also confirmed that the body at the morgue was that of the deceased. 10. After  the  aforesaid  FIR,  dated 02.11.2007,  was  registered,  the  Police  duly initiated an investigation and made inquires with the Company. Consequently, the Accused No.1 and 2 were taken into custody, at about 05:30 a.m., on 03.11.2007.  Thereafter,  based  on  confessional statements  of  the  accused-appellants,  the  police were able to recover the stolen items belonging to the deceased, from their respective houses, namely sim card, mobile phone, ear ring, watch, gold ring. The vehicle in which the deceased was taken by the accused-appellants  was  also  seized  and  the panchanama  was  prepared.  Further,  the  Test Identification Parade was conducted, on 14.01.2008, wherein the PW-12 identified the Accused No. 1 and 2

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as the persons in the cab with the deceased. 11. Pursuant  to  the  investigations,  a charge-sheet  was  duly  filed  by  the  police.  On 05.03.2009, the charges were framed under Sections 364, 376(2)(g) and 302 read with 34 and 404 read with 34 of the IPC. On 03.04.2010, the charge was altered  and  the  independent  charge  of  conspiracy under  Section  120-B  of  the  IPC  was  added. Additionally, the charge under Section 120-B of the IPC was added with the charge under Sections 302, 376(2)(g),  364  and  404  of  the  IPC.  The accused-appellants  pleaded  not  guilty  to  the aforesaid charges  and thus, the case was committed to trial. 12. During  the  course  of  the  Trial,  the prosecution examined 29 witnesses of which 11 were examined on the aspect of circumstantial evidence and 2 were doctors to establish the factum of rape and murder. PW-1, the Police Patil who registered

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the complaint personally, maintained his version as stated in the FIR, dated 02.11.2007, that PW-8 was the person who found the body of the deceased and informed  the  complainant  of  the  same.  PW-12,  the brother-in-law of the deceased, deposed that he was the last person to see the latter alive and that too in  the  company  of  the  accused-appellants.  The statement of PW-14, that he was the last person to talk to the deceased between 10:30 p.m. and 11:00 p.m., was supported by documentary evidence, i.e. call  records.  The  evidence  of  PW-12,  PW-13  and PW-14, in respect of the whereabouts of the deceased on  the  fateful  night,  and  with  regard  to  the identity of the accused-appellants was found to be consistent  and  trustworthy.  Furthermore,  based  on the  confessional  statements  of  the accused-appellants, the police were able to recover the vehicle, the items stolen from the body of the deceased  as  well  as  the  Odhani  of  the  deceased,

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which  was  found  to  be  one  of  the  tools  used  to commit  murder,  i.e.  by  way  of  strangulation.  The Odhani  and  clothes  of  the  deceased  that  was recovered,  after  chemical  analysis,  was  found  to contain semen stains of both the accused-appellants. Further that, on the basis of the vaginal swab taken during the post-mortem examination and the report of the Chemical Analyzer, it has been shown that semen of both the accused-appellants was found in the said swab as well.  13. The  Sessions  Court,  upon  meticulous consideration  of  the  material  on  record  and  the submissions made by the parties,  observed that the evidence  of  the  prosecution  formed  a  chain  so complete that it excluded any hypothesis other than the guilt of the accused-appellants. It concluded that the testimonies of PW-12, PW-13, PW-14, PW-1 and PW-11 are true and reliable and that the same along with the evidence of PW-16, the post-mortem

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report  and  the  report  of  the  Chemical  Analyzer support the case of the prosecution. The Sessions Court has noticed that the evidence of PW-12, which states  that  the  deceased  was  last  seen  in  the company of accused-appellants, coupled with the lack of  explanation  for  the  same  by  the accused-appellants in their statements under Section 313 of the Code, provides a firm link in the chain of circumstances. The Sessions Court observed that the  accused-appellants  have  failed  miserably  in discharging  their  burden  of  proving  that  the deceased was not in their company or that their cab suffered  a  punctured  tyre.  Further,  that  the recoveries  made  at  the  instance  of  the accused-appellants,  including  the  vehicle  in question,  the  belongings  of  the  deceased  in  the respective  houses  of  the  accused-appellants,  the Odhani of the deceased which was used as a weapon of murder along with the medical evidence and testimony

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of PW-16 establish the factum of commission of the crime  by  the  accused-appellants.  The  subsequent conduct  of  the  accused-appellants,  where  they continued to pick-up PW-11 and lied to him about the cause  of  the  delay  and  the  whereabouts  of  the deceased, has been found to be compatible with their guilt  and  in  consonance  with  their  meticulously chalked out plan for the commission of the offence of gang-rape and murder. Therefore, in light of the aforesaid,  the  Sessions  Court  concluded  that  the chain of circumstances evince beyond any reasonable doubt that the accused-appellants have committed the heinous offence of rape and murder of the deceased. 14. With regard to the quantum of sentence, the  Sessions  Court  noticed  the  well-settled principles laid down by this Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684; Macchi Singh and  Ors.  v.  State  of  Punjab,  (1983)  3  SCC  470; Dhananjoy Chatterjee v. State of West Bengal, (1994)

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2 SCC 220;  Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234; Aqeel Ahmed v. State of UP, (2008) 16 SCC 372 and Atbir Singh v. Govt. of NCT of Delhi, (2010) 9 SCC 1. Further, on due consideration to  the  aggravating  and  mitigating  circumstances present in the facts of the case, the Sessions Court observed  that  the  balance  was  clearly  tilting against the accused-appellants. After affording an opportunity of hearing to the accused-appellants on the  question  of  sentence,  the  Sessions  Court  has awarded them death sentence and fine of Rs.5,000/- each for the offence punishable under Section 120-B of the IPC,  death sentence and fine of Rs.5,000/- each  for the offence punishable under Section 302 read with Section 120-B of the IPC; imprisonment for life  and  fine  of  Rs.5,000/-  for  the  offence punishable under Section 376(2)(g) read with Section 120-B of the IPC; imprisonment for life and fine of Rs.5,000/-  each  for  the  offence  punishable  under

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Section 364 read with Section 120-B of the IPC; and rigorous imprisonment for two years and a fine of Rs.10,000/- each  for the offence punishable under Section 404 read with Section 120-B of the IPC. The Sessions  Court,  in  its  order  of  sentence,  has noticed  that  the  accused-appellants  committed  and executed the heinous offences in a pre-planned and meticulous manner which showed the determination of both the accused to complete the crime and take away the life of the accused. The Sessions Court observed that the extreme depravity with which the offences were committed and the merciless manner in which the deceased was raped and done to death, coupled with the gross abuse of the position of trust held by the Accused No.1 and the lack of remorse or repentance for  any  of  their  actions,  would  clearly  indicate that the given case was fit to be placed within the category of “rarest of rare” and the only punishment proportionate  to  the  brutality  exhibited  by  the

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accused-appellants would be the death penalty.  15. Aggrieved by the aforesaid judgment and order, the accused-appellants filed an appeal before the  High  Court  which  was  heard  along  with  the Reference for confirmation of death sentence  under Section 366 Code of Criminal Procedure, 1973 (for short,  “the  Code”)  and  disposed  of  by  a  common judgment  and  order,  dated  12.09.2012,  13.09.2012, 24.09.2012 and 25.09.2012. 16. The High Court has,  vide  the impugned judgment  and  order,  elaborately  dealt  with  the entire evidence on record and extensively discussed the  judgment  and  order  of  the  Sessions  Court  in order to ascertain the correctness or otherwise of the  conviction  and  sentence  awarded  to  the accused-appellants.  The  High  Court  has  carefully examined  the  evidence  on  record  including testimonies  of  the  Prosecution  Witnesses  and recorded the finding that the said statements do not

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reflect any discrepancy or inconsistency of facts and therefore must be considered as cogent, reliable and  incontrovertible  evidence.  Further,  that  the medical evidence and the deposition by PW-16,  i.e. the  doctor  who  conducted  the  post-mortem examination, clearly indicates the commission of the offence  of  rape  and  the  brutal  murder  of  the deceased.  The  High  Court  has  taken  note  of  the statement of the PW-16 that the probable cause of death  was  shock  and  hemorrhage  due  to  grievous injury to vital organs with skull fracture involving frontal,  left  temporal,  parietal  bone  with laceration to brain, fracture to the ribs and right lung rupture with strangulation, and further that the strangulation was committed by overpowering the deceased suddenly from behind. On the basis of the medical report as well as the Chemical Analyzer’s report, the High Court has observed that the factum of commission of the offence of rape by the Accused

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No.1 and 2 has been conclusively proved. The High Court has recorded that the recovery of weapons of murder from the place where the body of the deceased was located as well as from the house of the Accused No.1,  the  latter  being  at  the  instance  of  a confession  by  the  said  accused,  has  also  been established beyond any shadow of doubt. In light of the  chain  of  circumstantial  evidence  having  been established beyond any reasonable doubt, the High Court  has  concluded  towards  the  guilt  of accused-appellants  and  confirmed  the  judgment  of conviction passed by the Sessions Court. 17. With respect of the quantum of sentence, the High Court has noticed the well-settled law laid down by this Court and concluded that the present case falls under the category of “rarest of rare”. The High Court has observed that the heinous acts have been committed by the accused-appellants in a diabolical  and  cold-blooded  manner  without  any

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hesitation  and  undeterred  by  its  consequences. Further,  that  the  manner  of  commission  of  the offence  coupled  with  their  subsequent  conduct obliterates any chance of reformation and that there is no guarantee that the accused-appellants would not commit the same or similar offence if they were released. Therefore, the High Court confirmed the death sentence awarded by the Sessions Court. 18. The accused-appellants, aggrieved by the aforesaid confirmation of death sentence awarded to them, are before us in this appeal. 19. At the outset, it would be pertinent to note  that  this  Court  has  issued  notice  on  the limited  issue  of  the  sentence,  by  order  dated 04.07.2013.  Therefore,  the  learned  counsel  would limit her case only to the question of determination of quantum of sentence awarded by the Courts below and seek for commutation of the said sentence. 20. Learned  counsel  for  the

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accused-appellants would vehemently argue in favour of commutation of the death sentence awarded to the appellants  as  the  case  did  not  fall  within  the purview  of  “rarest  of  rare”  cases.  Further,  she would  submit  that,  in  the  present  case,  the mitigating circumstances outweighed the aggravating circumstances,  namely  that  the  age  of  the accused-appellants,  the  absence  of  any  criminal antecedents and the possibility that they could be reformed  and  rehabilitated  would  reflect  that  a sentence of life imprisonment would suffice the ends of justice. Per contra, the learned counsel for the respondent-State would seek to support the judgment and  order  passed  by  the  High  Court  and  Sessions Court. 21. We have given our anxious consideration to the arguments advanced by learned counsel for the parties to the appeal and also carefully scrutinized the evidence on record as well as the judgment(s)

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and order(s) passed by the Courts below.

22. We do not intend to saddle the judgment with the settled position of law in respect of the sentencing policy and the principles evolved by this Court for weighing the aggravating and mitigating factors in specific facts of the case. However, it would be apposite to notice the decision of this Court in the case of  Bachan Singh  (supra), wherein the constitutional validity of the provisions that authorize the Trial Court to award death sentence for the offence punishable under Section 302 of the IPC  and  other  offences  was  upheld.  However,  this Court observed that there can be no strait jacket formula which can be applied in each case and that while considering the sentence to be awarded, the Court must look into the aggravating and mitigating circumstances. The  ratio  of the decision in  Bachan Singh (supra)  has  been  followed  in  the  case  of

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Machhi Singh  (supra) wherein this Court held that the  manner  of  commission,  motive  for  commission, anti-social nature of crime, magnitude of crime and personality of victim ought to be kept in mind while awarding an appropriate sentence. It was held that a balance  sheet  of  aggravating  and  mitigating circumstances has to be drawn up and in doing so, the  mitigating  circumstances  have  to  be  accorded full weightage and a balance has to be struck. 23. It is an established position that law regulates  social  interests  and  arbitrates conflicting claims and demands. Security of persons is a fundamental function of the State which can be achieved  through  instrumentality  of  criminal  law. The  society  today  has  been  infected  with  a lawlessness  that  has  gravely  undermined  social order.  Protection  of  society  and  stamping  out criminal proclivity must be the object of law which may be achieved by imposing appropriate sentence.

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Therefore, in this context, the vital function that this Court is required to discharge is to mould the sentencing system to meet this challenge. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. Based on the facts of  the  case,  this  Court  is  required  to  be  stern where it should be and tempered with mercy where warranted. 24. In this context, it would be profitable to  notice  the  manner  in  which  this  Court  has considered the sentencing policy  vis-à-vis certain aggravating and mitigating circumstances. 25. In the case of  Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, this Court referred to the  Bachan Singh  case (supra) and  Machhi Singh

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case  (supra)  to  cull  out  certain  principles governing aggravating and mitigating circumstances. It  would  be  beneficial  to  refer  to  the  same hereinbelow:  

“Aggravating circumstances

(1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity,  kidnapping,  etc.  by  the  accused with  a  prior  record  of  conviction  for capital felony or offences committed by the person  having  a  substantial  history  of serious assaults and criminal convictions.

(2)  The  offence  was  committed  while  the offender  was  engaged  in  the  commission  of another serious offence.

(3)  The  offence  was  committed  with  the intention to create a fear psychosis in the public  at  large  and  was  committed  in  a public  place  by  a  weapon  or  device  which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or

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monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for  want  only  while  involving  inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to  prevent  a  person  lawfully  carrying  out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.

(9) When the crime is enormous in proportion like  making  an  attempt  of  murder  of  the entire  family  or  members  of  a  particular community.

(10) When the victim is innocent, helpless or  a  person  relies  upon  the  trust  of relationship and social norms, like a child, helpless  woman,  a  daughter  or  a  niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

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(11) When murder is committed for a motive which  evidences  total  depravity  and meanness.

(12)  When  there  is  a  cold-blooded  murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience  but  even  the  conscience  of  the society.

Mitigating circumstances

(1)  The  manner  and  circumstances  in  and under which the offence was committed, for example,  extreme  mental  or  emotional disturbance  or  extreme  provocation  in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3)  The  chances  of  the  accused  of  not indulging in commission of the crime again and  the  probability  of  the  accused  being reformed and rehabilitated.

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(4) The condition of the accused shows that he  was  mentally  defective  and  the  defect impaired  his  capacity  to  appreciate  the circumstances of his criminal conduct.

(5)  The  circumstances  which,  in  normal course  of  life,  would  render  such  a behaviour possible and could have the effect of giving rise to mental imbalance in that given  situation  like  persistent  harassment or, in fact, leading to such a peak of human behaviour  that,  in  the  facts  and circumstances  of  the  case,  the  accused believed  that  he  was  morally  justified  in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was  not  committed  in  a  preordained  manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences  to  the  commission  of  the primary crime.

(7) Where it is absolutely unsafe to rely upon  the  testimony  of  a  sole  eyewitness though the prosecution has brought home the

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guilt of the accused.”

26. Further, it has been held by this Court that undue sympathy to impose inadequate sentence would  do  more  harm  to  the  justice  system  by undermining the public confidence in the efficacy of law [See Mahesh v. State of M.P., (1987) 3 SCC 80; Sevaka Perumal v. State of T.N.,  (1991) 3 SCC 471 and Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67]. To give the lesser punishment for the accused would  be  to  render  the  judicial  system  of  the country suspect. If the courts do not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every court to award proper sentence having regard to the nature of  the  offence  and  the  manner  in  which  it  was executed or committed etc. 27. In the case of B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85, the appellant was

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accused of a brutal rape and murder of a lady. It was found, by medical evidence, that the deceased therein  was  a  victim  of  a  violent  rape  prior  to death  and  the  death  was  caused  due  to  as asphyxiation. Further, the medical report found that the body of the deceased has several abrasions and lacerations.  This  Court,  noticing  the  brutal  and violent  manner  of  commission  of  the  offences confirmed the death sentence to the accused therein. It was held that:

“84. As has been indicated by the courts below, the antecedents of the appellant and  his  subsequent  conduct  indicates that he is a menace to the society and is  incapable  of  rehabilitation.  The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. ...”

28. In the Sevaka Perumal case (supra), the

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counsel for the appellants therein contended that considering the young age of the accused, the same would be a strong mitigating factor in favour of commutation  of  death  sentence.  It  was  contended therein that the accused were the breadwinners of their family which consisted of a young wife, minor child and aged parents. However, this Court, finding no force in the said contention, observed that such compassionate grounds are present in most cases and are not relevant for interference in awarding death sentence.  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,  was  further  affirmed  by  a three-Judge Bench of this Court in  Mofil Khan  case (supra). 29. In  view  of  the  aforesaid  decisions highlighting the approach of this Court, we would now consider the decision of the Courts below, in

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the present case. The Sessions Court has noticed a similarity with the present case and the decision of this  Court  in  the  case  of  Dhananjoy  Chatterjee (supra).  Therefore,  in  light  of  the  same,  the Sessions Court has held that the present case would merit a sentence of death penalty and no less. The Session Court has observed:

“...  In  present  case,  accused  driver alongwith  co-accused  committed  rape  and murder of helpless and defenceless young girl who was reposing complete faith and trust on  them by  carefully planning  the crime and executing it in barbaric manner. Taking  the  verdict  in  the  matter  of Dhananjoy Chatterjee (supra) as yardstick, there is no hesitation to put on record that the case at hand is the rarest of rare case warranting nothing else but the death penalty to the accused persons. ...”

30. The High Court, by the impugned judgment and order, has concurred with the findings recorded by the Sessions Court in respect of the chain of

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circumstances  being  clearly  and  incontrovertibly established by the prosecution. With regard to the balance  sheet  of  aggravating  and  mitigating circumstances, the High Court has, in addition to the finding and observations of the Sessions Court, held that the aggravating circumstances far outweigh the  mitigating  circumstances.  Therefore,  the  High Court has recorded that there is no alternative but to  confirm  the  death  sentence  as  awarded  by  the Sessions Courts. 31. At this juncture, it would be pertinent to notice the Dhananjoy Chatterjee case (supra). As noticed above, the said case has been noticed by the Sessions  Court,  in  the  present  case,  as  bearing great  similarity  to  the  facts  herein.  In  the Dhananjoy Chatterjee  case (supra), the accused was convicted for the brutal rape and murder of a young girl aged about 18 years. The accused-therein was employed as a security guard of the building where

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the  deceased  resided  and  therefore  was  entrusted with  the  noble  task  of  ensuring  her  safety  and security.  The  reasoning  therein  has  been instrumental in moulding the sentencing policy of this  Court  and  therefore  it  would  be  gainful  to reproduce the relevant paragraphs from the said case below:

“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  large  while

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considering  imposition  of  appropriate punishment.

16. The sordid episode of the security guard, whose sacred duty was to ensure the  protection  and  welfare  of  the inhabitants  of  the  flats  in  the apartment,  should  have  subjected  the deceased,  a  resident  of  one  of  the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous.  Keeping  in  view  the  medical evidence and the state in which the body of the deceased was found, it is obvious that  a  most  heinous  type  of  barbaric rape  and  murder  was  committed  on  a helpless  and  defenceless  school-going girl of 18 years. If the security guards behave in this manner who will guard the guards? The faith of the society by such a  barbaric  act  of  the  guard,  gets totally shaken and its cry for justice becomes loud and clear. The offence was not only inhuman and barbaric but it was a  totally  ruthless  crime  of  rape

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followed by cold blooded murder and an affront  to  the  human  dignity  of  the society. The savage nature of the crime has  shocked  our  judicial  conscience. There are no extenuating or mitigating circumstances whatsoever in the case. We agree that a real and abiding concern for  the  dignity  of  human  life  is required  to  be  kept  in  mind  by  the courts  while  considering  the confirmation  of  the  sentence  of  death but  a  cold  blooded  preplanned  brutal murder,  without  any  provocation,  after committing  rape  on  an  innocent  and defenceless young girl of 18 years, by the security guard certainly makes this case a “rarest of the rare” cases which calls for no punishment other than the capital  punishment  and  we  accordingly confirm  the  sentence  of  death  imposed upon the appellant for the offence under Section 302 IPC. The order of sentence imposed on the appellant by the courts below  for  offences  under  Sections  376 and  380  IPC  are  also  confirmed  along

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with the directions relating thereto as in  the  event  of  the  execution  of  the appellant,  those  sentences  would  only remain of academic interest. This appeal fails and is hereby dismissed.”

32. It would now be necessary for this Court to  consider  the  balance  sheet  of  aggravating  and mitigating circumstances. In the instant case, the learned counsel for the accused-appellants has laid stress upon the age of the accused persons, their family background and lack of criminal antecedents. Further, the learned counsel has fervently contended that  the  accused-appellants  are  capable  of reformation  and  therefore  should  be  awarded  the lighter punishment of life imprisonment.  33. In our considered view, in the facts of the present case, age alone cannot be a paramount consideration  as  a  mitigating  circumstance. Similarly,  family  background  of  the  accused  also could not be said to be a mitigating circumstance.

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Insofar as Accused No.1 is concerned, it has been contended that he was happily married and his wife was  pregnant  at  the  relevant  time.  However,  the Accused  No.1  did  not  take  into  consideration  the condition of his wife or his mother while committing the said offence and, as a result, his wife deserted him and his widowed mother is being looked after by his nephew and niece. Insofar as Accused No.2 is concerned, he has two sisters who are looking after his  widowed  mother.  Lack  of  criminal  antecedents also  cannot  be  considered  as  mitigating circumstance,  particularly  taking  into consideration,  the  nature  of  heinous  offence  and cold and calculated manner in which it was committed by the accused persons. 34. In our considered view, the “rarest of the rare” case exists when an accused would be a menace or, threat to and incompatible with harmony in the society. In a case where the accused does not

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act on provocation or on the spur of the moment, but meticulously executes a deliberate, cold-blooded and pre-planned  crime,  giving  scant  regard  to  the consequences of the same, the precarious balance in the  sentencing  policy  evolved  by  our  criminal jurisprudence would tilt heavily towards the death sentence.  This  Court  is  mindful  of  the  settled principle  that  criminal  law  requires  strict adherence to the rule of proportionality in awarding punishment, and the same must be in accordance with the culpability of the criminal act. Furthermore, this Court is also conscious to the effect, of not awarding just punishment, on the society.  35. In the present factual matrix, Accused No.1  abducted  the  deceased  with  help  of  Accused No.2, and subsequently they raped and murdered her. They did not show any regret, sorrow or repentance at any point of time during the commission of the heinous offence, nor thereafter, rather they acted

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in a disturbingly normal manner after commission of crime. It has been established by strong and cogent evidence that after the commission of the gruesome crime, Accused No.2 accompanied Accused No.1 for the second  pick  up  and  exited  the  cab  only  prior  to reaching the gate of the Company. Further, it has been  brought  on  record  that  the  Accused  No.1 attempted to create false record of the whereabouts of the cab and the cause of the delay in arriving at the workplace. In addition, it has been noticed that even  though  the  accused-appellants  were  seen  by PW-12, that the deceased repeatedly questioned them of  the  unusual  route,  or  that  the  deceased  was talking to a friend on the phone during the journey, nothing deterred them from committing the heinous offences.  In  fact  the  Sessions  Court  has  noticed that  during  the  commission  of  the  offences,  the accused-appellants were contacted by PW-11 seeking an  explanation  for  the  delay  in  picking  him  up,

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however even this did not deter them. 36. Thus, the manner in which the commission of  the  offence  was  so  meticulously  and  carefully planned coupled with the sheer brutality and apathy for humanity in the execution of the offence, in every  probability  they  have  potency  to  commit similar offence in future. It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they  can  be  reformed  or  rehabilitated.  In  our considered opinion, the mitigating circumstances are wholly absent in the present factual matrix.  This appeal is not a case where the offence was committed by the accused persons under influence of extreme mental or emotional disorder, nor is it a case where the offence may be argued to be a crime of passion or one committed at the spur of the moment. There is no question of accused persons believing that they were morally justified in committing the offence on

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helpless and defenceless young woman.  37. Therefore,  in  view  of  the  above  and keeping the aforesaid principle of proportionality of sentence in mind, this Court is in agreement with the reasoning of the Courts below that the extreme depravity with which the deceased was done to death coupled  with  the  other  factors  including  the position of trust held by the Accused No.1, would tilt  the  balance  between  the  aggravating  and mitigating  circumstances  greatly  against  the accused-appellants.  The  gruesome  act  of  raping  a victim  who  had  reposed  her  trust  in  the  accused followed by a cold-blooded and brutal murder of the said  victim  coupled  with  the  calculated  and remorseless conduct of the accused persons after the commission  of  the  offence,  we  cannot  resist  from concluding  that  the  depravity  of  the  appellants’ offence would attract no lesser sentence than the death penalty.

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38. In addition to the above, it would be necessary for this Court to notice the impact of the crime  on  the  community  and  particularly  women working  in  the  night  shifts  at  Pune,  which  is considered  as  a  hub  of  Information  Technology Centre.  In  recent  years,  the  rising  crime  rate, particularly violent crimes against women has made the criminal sentencing by the Courts a subject of concern.  The  sentencing  policy  adopted  by  the Courts,  in  such  cases,  ought  to  have  a  stricter yardstick so as to act as a deterrent. There are a shockingly large number of cases where the sentence of  punishment  awarded  to  the  accused  is  not  in proportion  to  the  gravity  and  magnitude  of  the offence thereby encouraging the criminal and in the ultimate  making  justice  suffer  by  weakening  the system’s  credibility.  The  object  of  sentencing policy should be to see that the crime does not go unpunished  and  the  victim  of  crime  as  also  the

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society has the satisfaction that justice has been done to it. In the case of Machhi Singh  (supra), this Court observed that the extreme punishment of death  would  be  justified  and  necessary  in  cases where  the  collective  conscience  of  society  is  so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion. 39. It is true that any case of rape and murder would cause a shock to the society but all such offences may not cause revulsion in society. Certain offences shock the collective conscience of the  court  and  community.  The  heinous  offence  of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded  murder  and  calculated  attempt  of cover-up  is  one  such  instance  of  a  crime  which shocks and repulses the collective conscience of the community and the court. Therefore, in light of the

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aforesaid  settled  principle,  this  Court  has  no hesitation in holding that this case falls within the category of “rarest of rare”, which merits death penalty and none else. The collective conscience of the  community  is  so  shocked  by  this  crime  that imposing alternate sentence, i.e. a sentence of life imprisonment on the accused persons would not meet the ends of justice. Rather, it would tempt other potential  offenders  to  commit  such  crime  and  get away  with  the  lesser/lighter  punishment  of  life imprisonment. 40. In the result, after having critically appreciated the entire evidence on record as well as the judgments of the Courts below in great detail, we are in agreement with the reasons recorded by the trial court and approved by the High Court while awarding and confirming the death sentence of the accused-appellants.  In  our  considered  view,  the judgment and order passed by the Courts below does

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not suffer from any error whatsoever. 41. Therefore, this appeal is rejected and the  sentence  of  death  awarded  to  the accused-appellants  is  confirmed.  The  judgment  and order  passed  by  the  High  Court  is  accordingly affirmed. 42. The  appeal  is  disposed  of  in  the aforesaid terms.

Ordered accordingly.

.............CJI. (H.L. DATTU)

...............J. (S.A. BOBDE)

...............J. (ARUN MISHRA)

NEW DELHI MAY 08, 2015.

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