REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.145-146 OF 2011

Rajendra Pralhadrao Wasnik … Appellant

Versus

The State of Maharashtra     …  

Respondent

J U D G M E N T

Swatanter Kumar, J.

1. The present appeals are directed against the judgment dated  

26th March,  2009 passed by the High Court  of  Bombay,  Nagpur  

Bench affirming  the  conviction  of  the  accused  under  Sections  

376(2)(f),  377 and 302 of the Indian Penal Code, 1860 (hereafter  

‘IPC’) and the sentence of death awarded to the accused-appellant  

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herein  vide  judgment  of  the  First  Additional  Sessions  Judge,  

Amrawati, dated 10th September, 2008.   

2. The facts giving rise to the present appeal fall within a narrow  

compass and are as follows :

Mahendra Namdeorao Wasnik, PW12, was living with his wife,  

three children and parents in Village Asra.  He used to go to Village  

Tarkheda for earning his livelihood at the thresher of one Zafarbhai.  

Normally, he used to return to his village at about 10.00 p.m. after  

doing his day’s work.  On 2nd March, 2007, he left his house at 7.00  

a.m.  and returned from his  work at  about  9.00 p.m.   Upon his  

arrival, he was informed by his wife Kantabai Wasnik that at about  

4.00 p.m. one person, whose name she did not know, had come to  

the house and after taking tea, he left.  The said person had again  

come at about 6.30 p.m.  On his second visit, he told that he would  

take out their daughter, namely Vandana, to get her biscuits.  After  

talking to the mother of Vandana, the accused had taken Vandana  

for purchasing biscuits but never brought her back to her house.  

Having  learnt  this,  PW12  started  searching  for  his  daughter  

Vandana along with others, but they were unable to find her.  On  

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3rd March, 2007 at about 8.00 a.m. when he was going to the Police  

Station  for  lodging  the  report,  he  saw  that  some  persons  had  

gathered in the fields of Pramod Vitthalrao Mohod.  He went there  

and saw the dead body of his daughter in that field.  The dead body  

of Vandana was lying in a nude condition and there were injuries  

on her person.  It has come in evidence that the accused had visited  

the house of PW12, Mahendra Namdeorao Wasnik to see his ailing  

father.   He  left  after  a  cup  of  tea.  It  was  on  this  information  

received from his wife that PW12 suspected that the accused was  

the person who was a resident of  Village Parlam and had taken  

away his daughter.  Consequently, PW12 lodged the report with the  

Police,  Exhibit  71 in respect  of  the  incident.  As  the  body of  the  

deceased  minor  girl,  Vandana,  had  been  recovered,  an  FIR  was  

registered being Crime Case No.23/2007 under Sections 376(2)(f),  

377 and 302 IPC. The Investigating Officer started the investigation,  

prepared the inquest panchnama in respect of the dead body of the  

deceased Vandana vide Exhibit 11.  Sample of soil, soil mixed with  

urine and clothes of the deceased Vandana were seized from the  

spot under Panchanama Exhibit 12.  The Investigating Officer had  

also drawn a sketch map of the spot of the incident on 16th June,  

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2007 vide Exhibit  64.   At  the request of  the Police,  the Judicial  

Magistrate recorded statement of the witnesses, namely, Bhimrao  

Gulhane,  Nilesh  Gedam,  Ravindra  Borkar  and  Sumit  Ramteke  

under  Section  164  of  the  Code  of  Criminal  Procedure,  1973  

(hereafter ‘Cr.P.C.’)  The accused was arrested  on 10th April, 2007  

his  clothes  were  seized  vide  Exhibit  14.   He  was  subjected  to  

medical  examination.   The  doctor  had  taken  blood  and  semen  

sample of the accused.  These samples and the viscera were sent for  

medical examination vide Exhibits 21 and 22.  The reports thereof  

are Exhibits 76 to 79.

3. The  accused  was  produced  before  the  Court  and  was  

committed to the Court of Sessions where he was charged with the  

offences punishable under Sections 376(2)(f), 377 and 320 IPC.  He  

was tried for these offences.  Learned Trial Court found him guilty  

of all the offences and awarded him punishments as follows :

Offences Punishment/Sentence 302 IPC Sentenced to death and he shall be hanged  

by  neck  till  he  is  dead  subject  to  confirmation  by  the  Hon’ble  High  Court,  Bombay,  Bench  at  Nagpur  as  per  the  provisions of Section 366 of Cr.P.C.

376(2)(f) IPC Sentenced  to  imprisonment  for  life  and  to  

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pay  fine  of  Rs.1,000  (one  thousand),  in  default  to  suffer  rigorous  imprisonment  for  six months.

377 IPC Sentenced to  rigorous  imprisonment  for  10  (ten) years and to pay fine of Rs.1,000 (one  thousand)  in  default  to  suffer  further  rigorous imprisonment for six months.

4. Aggrieved  by  the  said  judgment,  the  accused  preferred  an  

appeal before the High Court which, as already noticed, came to be  

dismissed.  The High Court upheld the conviction and sentence of  

the accused giving rise to the filing of the present appeals.

5. Learned  counsel  appearing  for  the  appellant-accused  

contended  that  the  complete  chain  of  events  leading  to  the  

involvement  of  the  appellant  in  the  crime,  in  question,  have not  

been  established  by  the  prosecution.   According  to  him,  the  

prosecution  has  failed to prove its case beyond reasonable doubt.  

The case is one of circumstantial evidence and the onus to prove  

the case by leading cogent, appropriate and linking evidence is on  

the prosecution.  The prosecution has failed to establish the charge  

against  the  appellant.   All  witnesses  are  interested witnesses  as  

they are the relatives of the informant or the deceased and as such  

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cannot  be safely  relied upon by the  Court  to hold the  appellant  

guilty of the alleged offences.  Lastly, it is also contended that it was  

not a case which fell in the category of ‘rarest of rare’ cases where  

the Court would find that any other sentence except death penalty  

would  be  inadequate  and unjustifiable.   Thus,  the  imposition of  

penalty of death imposed by the High Court calls for interference by  

this Court.  Though the accused, in his statement under Section  

313 Cr.P.C.,  while  replying  to  question  No.9  about  the  death  of  

Vandana and injuries on her body, had stated that it was false but  

from the evidence led by the prosecution, it is clear that the death  

of the deceased Vandana was homicidal.  One can get the idea of  

the torture and brutality that the minor girl suffered at the hands of  

the  accused from the injuries  found on her  person in  the  post-

mortem report.  They have been described by the doctor as follows:

“External  Vaginal  Swelling  present  Vaginal  wall  lacerated,  wound  extending  from  labia  mejora to inside vaginal canal in lower 1/3rd on  both side 1½” x ¼” x muscle deep

Stains of semen present on inner side of thigh.

Hymen absent, one finger easily pass.

Swelling present on anal region.

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Multiple abrasions with Contusions present on  body on face, chest back & both shoulders and  knees Interiorly.

Bite  mark  on  chest  (L)  side  around  Nipple  elliptical with diameters 1½” x 1¼”.

Right Lung collapsed, 150 gm, Congested on  section collapsed.

Left  Lung  Collapsed,  100  gm,  Congested  on  section collapsed.

Large vessels – contained blood.”  

6. Exhibit 11, the inquest panchnama is admitted while the post  

mortem report Exhibit 71 has been proved in accordance with law.  

Both these documents demonstrate, beyond reasonable doubt, that  

it was a case of homicidal death and as per the post mortem report,  

the cause of death was rape and asphyxia.

7. There is no doubt that it is not a case of direct evidence but  

the  conviction  of  the  accused  is  founded  on  circumstantial  

evidence.  It is a settled principle of law that the prosecution has to  

satisfy  certain  conditions  before  a  conviction  based  on  

circumstantial evidence can be sustained. The circumstances from  

which  the  conclusion  of  guilt  is  to  be  drawn  should  be  fully  

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established and should also be consistent with only one hypothesis,  

i.e.  the  guilt  of  the  accused.  The  circumstances  should  be  

conclusive and proved by the prosecution.  There must be a chain  

of events so complete as not to leave any substantial doubt in the  

mind of  the  Court.   Irresistibly,  the  evidence should lead to  the  

conclusion which is inconsistent with the innocence of the accused  

and  the  only  possibility  is  that  the  accused  has  committed  the  

crime.   To put it simply, the circumstances forming the chain of  

events  should  be  proved  and  they  should  cumulatively  point  

towards the guilt of the accused alone.  In such circumstances, the  

inference of guilt can be justified only when all the incriminating  

facts  and  circumstances  are  found  to  be  incompatible  with  the  

innocence  of  the  accused  or  the  guilt  of  any  other  person.  

Furthermore,  the  rule which needs  to  be  observed by  the  Court  

while dealing with cases of circumstantial evidence is that the best  

evidence must be adduced which the nature of  the case admits.  

The circumstances have to be examined cumulatively.  The Court  

has to examine the complete chain of events and then see whether  

all the material facts sought to be established by the prosecution to  

bring  home  the  guilt  of  the  accused,  have  been  proved  beyond  

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reasonable doubt or not.  It has to be kept in mind that all these  

principles  are  based  upon  one  basic  cannon  of  our  criminal  

jurisprudence that the accused is innocent until proven guilty and  

that  the  accused  is  entitled  to  a  just  and  fair  trial.   [Ref.  

Dhananajoy Chatterjee alias Dhana vs. State of W.B. [JT 1994 (1) SC  

33];  Shivu & Anr. v.  R.G. High Court of Karnataka & Anr.  [(2007) 4  

SCC  713];  and  Shivaji  @  Dadya  Shankar  Alhat v.  State  of   

Maharashtra [(AIR 2009 SC 56].

8. Now, we will revert to the facts of the present case in light of  

the above-stated principles.  We must spell out the circumstances  

which would show that for the undisputable rape and murder of the  

deceased minor girl, the accused is not only the suspect but is also  

the person who has committed the crime.  These circumstances are:

1. The accused had taken Vandana from her home on the pretext  

of purchasing her biscuits.

2. Neither Vandana nor the accused returned to the house.

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3. Accused was seen with the deceased Vandana on 2nd March,  

2007 at about 6.00 p.m. at the bus stand where, in the normal  

course of life, such shops are situated.

4. Thereafter, the nude body of Vandana was found in the field of  

Pramod Vitthalrao Mohod on 3rd March, 2007.

5. Exhibit  11 and 71, show beyond reasonable  doubt that the  

three year old girl  was subjected to rape,  injuries and then  

murdered.

9. The above circumstances and the chain of events is complete  

with regard to  the  commission of  crime and undoubtedly  points  

towards  the  accused.   Now,  we  have  to  examine  whether  the  

prosecution has provided these facts as required in law.   

10. PW2, Kanta, is the mother of the deceased Vandana.  In her  

statement  she  has  stated  that  she  was  living  along  with  her  

husband, one daughter and two sons.  According to her, her in-laws  

were residing in the same house, though separately.  Vandana was  

three years old at  the  time of  her  death.   According to her,  the  

occurrence took place on the day of Holi festival.  She identified the  

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accused, who was present in the court and stated that he had come  

to their house earlier and then on the date of the incident as well.  

Supporting  the  case  of  the  prosecution,  she  stated  that  he  had  

come to the house at about 3.00 p.m. and then left after having tea  

by saying that he wanted to meet  his friends and thereafter,  he  

again came back at 6.00 p.m.  Vandana was playing in front of the  

house at that time.  The accused told her that he would purchase  

biscuits for the child and took Vandana with him.  They had gone  

towards  the  bus-stand  and  thereafter,  neither  Vandana  nor  the  

accused returned home.  She had told her husband, PW1, about  

the incident on his return from work.  PW2 also stated that on the  

next day body of deceased was found in the fields.  There was blood  

in  her  nostrils  and  mouth.   Marks  of  bites  were  found  on  her  

breast.  There was swelling in the private parts of her body.  She  

came  to  know  the  name  of  the  accused  subsequently.   Her  

statement remained uncontroverted or nothing material came in her  

cross-examination.   The  accused  was  also  seen  in  the  house  of  

PW12  by  PW3,  Preeti,  who  is  the  niece  of  PW12.   She  also  

corroborated the statements of PW12 and PW2.  PW4, is the other  

material  witness,  Ravindra,  who  stated  that  on  the  day  of  the  

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incident, i.e. 2nd March, 2007, he was present at the S.T. Bus stand  

of Asra and he had seen the accused along with Vandana in hotel  

Rajendra Bhojane.  She was on the waist of the accused and they  

had purchased a packet of biscuits.  Thereafter, he saw the accused  

going on the  road which goes to Amrawati.   Thereafter,  he even  

searched for Vandana along with Vikram Meshram.  PW5, Bhimrao  

Pundlik Gulhane is a witness who owns 13 acres of agricultural  

land at Village Khargodi in Village Nagthana.  For the purposes of  

cultivating his land, he used to engage labourers, and the accused  

was engaged by him for doing the work on his agricultural field and  

he disclosed the name of accused as Sanjay Manohar Wankhede.  

According  to  this  witness,  he  maintained  a  regular  register  for  

marking  ‘presence’  and  ‘payment  of  wages’  to  the  labourers  he  

engaged.  The said witness deposed that on the date of occurrence,  

i.e. 2nd March, 2007, the accused did not come for duty.  However,  

on  that  day  in  the  morning,  the  accused  came  to  him  and  

demanded  Rs.  500/-  saying  that  he  wanted  to  go  to  Asra  and  

thereafter, he did not come back.  He produced the register which  

had been seized by the police earlier and had the signatures and it  

was exhibited as Ex.36.  PW7, is another witness, who had seen the  

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accused holding Vandana when he was going back to his house  

from the S.T. bus stand Asra.   

11. The accused was subjected to medical examination and was  

examined by Dr. Ravindra Ruprao Sirsat, PW9 and he noticed no  

injuries  on  his  person.   Father  of  the  deceased  minor  girl  was  

examined as PW12 and he provided the complete chain of events,  

right from the time he got the information that his daughter had  

been taken away till the time when her dead body was recovered  

from the fields.   Dr. K.V. Wathodkar, Dr. (Mrs.) V.K. Wathodkar  

and Dr. Varsha S. Bhade had prepared the postmortem report, Ex.-

17, which clearly shows that the cause of death of the three-year  

old girl was rape and asphyxia.  All these factors have been proved  

by the prosecution both by documentary as well as oral evidence.  

The accused admitted the documents i.e. the sketch map, Ex.64,  

spot  panchnama,  Ex.10,  inquest  panchnama,  Ex.11,  seizure  

panchnamas Exihibits 12, 13 and 14 in respect of the seizure of  

clothes of the accused and in respect of blood sample, public hair  

sample,  semen sample of the accused, arrest  panchnama,  Ex.16,  

postmortem report Ex.17 and letters Ex.19 to 27.   

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12. Once these crucial pieces of documentary evidence have been  

admitted by the accused and other factual links in the story of the  

prosecution  have  been  duly  proved  by  the  witnesses  by  

circumstantial or direct evidence, there is no occasion for this Court  

to doubt that the prosecution has not been able to prove its case  

beyond reasonable doubt.   

13. It has been vehemently argued on behalf of the appellant that  

the  report  of  the  FSL  does  not  connect  the  accused  to  the  

commission  of  the  crime.   This,  being  a  very  material  piece  of  

evidence which the prosecution has failed to establish, the accused  

would be entitled to the benefit of doubt.  There were two kinds of  

Exhibits  which  were  sent  by  the  Police  to  the  Forensic  Science  

Laboratory for examination – one, the blood-stained clothes of the  

deceased and second, the sample of blood, semen and pubic hair  

sample of the accused which were sent vide Exhibit 57.  The reports  

of the laboratory are Exhibits 76, 77, 78 and 79.  As far as the  

reports in respect of the appellant’s sample of semen and blood are  

concerned,  they  were  inconclusive  as  was  stated  by  the  FSL  in  

Exhibit 76.  His clothes which were seized by the Police did not bear  

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any blood or semen stains and that was duly recorded in Exhibit  

78.  Exhibit 77 were the clothes of the deceased which were blood  

stained.  The clothes contained blood group ‘O’ which was the blood  

group of the deceased girl.  From the report of the experts, it is clear  

that  there  is  no  direct  evidence  connecting  the  appellant  to  the  

commission of the crime but it is not the case of the defence that  

the FSL report was in the negative.  Merely because the report was  

inconclusive,  it is not necessary that the irresistible conclusion is  

only  one  that  the  accused  is  not  guilty,  particularly  where  the  

prosecution has been able to establish its case on circumstantial  

evidence as also by direct oral evidence.  It is a settled principle of  

law that the evidence has to be read in its entirety.  If, upon reading  

the evidence as such, there are serious loopholes or lacking in the  

case of the prosecution and they do not prove that the accused is  

guilty,  then the Court  would be  justified in  giving  the  benefit  of  

doubt to the accused on the strength of a weak FSL report.  The  

FSL report Exhibit  P77 had clearly established that the blood of  

group ‘O’ was found on the clothes of the deceased and that was her  

blood group.  The prosecution has been able to establish not only  

by substantial evidence but clearly by medical evidence as well, that  

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the minor girl had suffered serious injuries on her private parts and  

there were bite marks on her chest.

14. An attempt was also made to cast certain doubts as to the very  

identity  of the accused but we find this submission without any  

substance.   The  accused  has  been  identified  by  PW2,  PW3 and  

PW4.  Besides  them,  even PW7 Sumeet  Ramteke had also  stated  

that he had seen the victim minor girl  with the appellant in the  

house of PW2, Kantabai and then again seen him with the victim  

going towards the ST bus stand.  Statement of these four witnesses  

successfully  stood  the  lengthy  cross-examination  conducted  on  

behalf  of  the  defence.   There  cannot  be  any  doubt  in  these  

circumstances that the accused had taken away the victim from the  

house of PW2 and was seen at the ST stand.  

15. In our considered opinion, the tests laid down by this Court in  

Baldev Singh v. State of Haryana,  AIR 2009 SC 963 in relation to  

cases  of  circumstantial  evidence  are  completely  satisfied  in  the  

present case.  The circumstances and the chain of events proved by  

the prosecution is fully established and the circumstances which  

were required to be proven by the prosecution, have been proved by  

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them successfully.  The cumulative effect of the entire prosecution  

evidence  is  that  it  points  unmistakably  towards  the  guilt  of  the  

accused.  It is not only a case of circumstantial evidence simpliciter  

but also the ‘last seen together’ principle.  There are witnesses who  

had seen the accused at the house of PW2 with the deceased minor  

girl.   Thereafter, he was again seen with the child at the ST bus  

stand, Asra and lastly while going away from the ST bus stand with  

the minor child.  Thus, once the evidence had successfully shown  

that the accused was last seen with the minor girl, it was for the  

accused  to  explain  the  circumstances.   The  accused  in  his  

statement  under  Section  313  Cr.P.C.,  in  response  to  all  the  68  

questions  put  to  him,  answered  only  one  simple  answer  -  ‘it  is  

false’.   He also stated that the Police had registered a false case  

against him and that he did not want to lead any defence.  It is very  

difficult to assume that as many as 13 witnesses from the same  

village, the Police and doctors would falsely implicate the accused.  

There are no circumstances which can even remotely suggest that  

this plea taken by the accused even deserves consideration. Ex facie  

this is an incorrect stand.

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16. Having  dealt  with  the  contentions  of  the  learned  counsel  

appearing for the appellant on the merits of the case, now we would  

proceed  to  discuss  the  last  contention  raised  on  behalf  of  the  

appellant  that  this  is  not  one  of  the  rarest  of  rare  cases  where  

awarding death sentence is justified.  We have already held that the  

prosecution has been able to bring home the guilt of the accused for  

the offences under Sections 376(2)(f), 377 and 302 of the IPC.  In  

order to deal with this contention raised on behalf of the appellant,  

we may, at the very outset, refer to the basic principles that are to  

be kept in mind by the Court while considering the award of death  

sentence to an accused.  This very Bench in a recent judgment,  

considered various judgments of  this Court  by different  Benches  

right from Bachan Singh’s case, in relation to the canons governing  

the  imposition  of  death  penalty  and  illustratively  stated  the  

aggravating  circumstances,  mitigating  circumstances  and  the  

principles that would be applied by the Courts in determining such  

a question.   It will be useful to refer to the judgment of this Bench  

in the case of Ramnaresh vs. State of Chattisgarh,  Crl. Appeal No.  

166-167/2010 decided on February 28, 2012 wherein it was held  

as under: -  

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“The  above  judgments  provide  us  with  the  dicta  of  the  Court  relating  to  imposition  of  death  penalty.    Merely  because  a  crime  is  heinous per se may not be a sufficient reason  for  the  imposition  of  death  penalty  without  reference  to  the  other  factors  and  attendant  circumstances.    

Most of the heinous crimes under the IPC  are  punishable  by  death  penalty  or  life  imprisonment.   That by itself does not suggest  that  in  all  such  offences,  penalty  of  death  should be awarded.    We must notice, even at  the  cost  of  repetition,  that  in  such  cases  awarding of life imprisonment would be a rule,  while  ‘death’  would  be  the  exception.    The  term  ‘rarest  of  rare  case’  which  is  the  consistent determinative rule declared by this  Court,  itself  suggests  that  it  has  to  be  an  exceptional  case.    The  life  of  a  particular  individual  cannot  be  taken  away  except  according to the procedure established by law  and that is the constitutional mandate.   The  law contemplates recording of special reasons  and, therefore, the expression ‘special’  has to  be given a definite meaning and connotation.  ‘Special  reasons’  in  contra-distinction  to  ‘reasons’  simplicitor conveys  the  legislative  mandate of putting a restriction on exercise of  judicial discretion by placing the requirement  of special reasons.   

Since, the later judgments of this Court  have  added  to  the  principles  stated  by  this  Court in the case of Bachan Singh (supra) and  Machhi  Singh (supra),  it  will  be  useful  to  re- state the stated principles while also bringing  them  in  consonance,  with  the  recent  judgments.

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The law enunciated by this Court in its  recent  judgments,  as  already  noticed,  adds  and elaborates the principles that were stated  in  the  case  of  Bachan  Singh (supra)  and  thereafter, in the case of Machhi Singh (supra).  The  aforesaid  judgments,  primarily  dissect  these  principles  into  two  different  compartments  –  one  being  the  ‘aggravating  circumstances’  while  the  other  being  the  ‘mitigating  circumstance’.  The  Court  would  consider  the  cumulative  effect  of  both  these  aspects  and  normally,  it  may  not  be  very  appropriate for  the Court  to decide the most  significant  aspect  of  sentencing  policy  with  reference to one of the classes under any of the  following heads while completely ignoring other  classes under other heads.  To balance the two  is  the  primary duty of  the  Court.   It  will  be  appropriate  for  the  Court  to  come to  a  final  conclusion  upon  balancing  the  exercise  that  would help to administer the criminal justice  system  better  and  provide  an  effective  and  meaningful  reasoning  by  the  Court  as  contemplated under Section 354(3) Cr.P.C.

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.    

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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  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 Cr.P.C.

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

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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.

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.   

4. The condition of the accused shows that  he  was  mentally  defective  and  the  defect  

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impaired  his  capacity  to  appreciate  the  circumstances of his criminal conduct.

5. The  circumstances  which,  in  normal  course of  life,  would render  such a behavior  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 behavior 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  pre-ordained  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  eye-witness  though  prosecution has brought home the guilt of the  accused.

While  determining  the  questions  relateable to sentencing policy, the Court has  to  follow  certain  principles  and  those  principles are the loadstar besides the above  considerations  in  imposition  or  otherwise  of  the death sentence.   

Principles :

1. The  Court  has  to  apply  the  test  to  determine, if it was the ‘rarest of rare’ case for  imposition of a death sentence.

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2. In the opinion of the Court, imposition of  any other punishment, i.e., life imprisonment  would be completely inadequate and would not  meet the ends of justice.

3. Life imprisonment is the rule and death  sentence is an exception.

4. The  option  to  impose  sentence  of  imprisonment  for  life  cannot  be  cautiously  exercised  having  regard  to  the  nature  and  circumstances  of  the  crime  and  all  relevant  circumstances.

5. The  method  (planned  or  otherwise)  and  the  manner  (extent  of  brutality  and  inhumanity,  etc.)  in  which  the  crime  was  committed  and the  circumstances  leading  to  commission of such heinous crime.

Stated  broadly,  these  are  the  accepted  indicators for the exercise of judicial discretion  but  it  is  always  preferred  not  to  fetter  the  judicial discretion by attempting to make the  excessive enumeration, in one way or another.  In  other  words,  these  are  the  considerations  which may collectively  or  otherwise  weigh in  the  mind  of  the  Court,  while  exercising  its  jurisdiction.   It  is  difficult  to  state,  it  as  an  absolute rule.  Every case has to be decided on  its own merits.  The judicial pronouncements,  can only state  the  precepts  that  may govern  the exercise of judicial discretion to a limited  extent.   Justice may be done on the facts of  each case.   These  are  the  factors  which the  Court  may  consider  in  its  endeavour  to  do  complete justice between the parties.

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The  Court  then  would  draw  a  balance- sheet  of  aggravating  and  mitigating  circumstances.  Both aspects have to be given  their respective weightage.  The Court has to  strike  a  balance  between  the  two  and  see  towards  which  side  the  scale/balance  of  justice  tilts.   The  principle  of  proportion  between the crime and the punishment is the  principle  of  ‘just  deserts’ that  serves  as  the  foundation of  every criminal  sentence that is  justifiable.   In  other  words,  the  ‘doctrine  of  proportionality’  has a  valuable  application to  the  sentencing  policy  under  the  Indian  criminal  jurisprudence.   Thus,  the  court  will  not only have to examine what is just but also  as  to  what  the  accused  deserves  keeping  in  view the impact on the society at large.

Every  punishment  imposed  is  bound to  have its effect not only on the accused alone,  but also on the society as a whole.  Thus, the  Courts  should  consider  retributive  and  deterrent aspect of punishment while imposing  the extreme punishment of death.

Wherever,  the  offence  which  is  committed, manner in which it is committed,  its  attendant  circumstances  and  the  motive  and status of the victim, undoubtedly  brings  the  case  within  the  ambit  of  ‘rarest  of  rare’  cases and the Court finds that the imposition  of  life  imprisonment  would  be  inflicting  of  inadequate punishment, the Court may award  death penalty.  Wherever, the case falls in any  of the exceptions to the ‘rarest of rare’ cases,  the Court may exercise its judicial  discretion  while  imposing life  imprisonment  in  place  of  death sentence.”

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17. We shall tentatively examine the facts of the present case in  

light of the above principles. First and foremost is that the crime  

committed by the accused is heinous.  In fact,  it  is not heinous  

simplicitor,  but is a brutal  and inhuman crime where a married  

person, aged 31 years, chooses to lure a three year old minor girl  

child on the pretext of buying her biscuits and then commits rape  

on her. Further, obviously intending to destroy the entire evidence  

and the possibility of being identified, he kills the minor child.  On  

the basis  of  the  ‘last  seen together’  theory  and other  direct  and  

circumstantial evidence, the prosecution has been able to establish  

its  case  beyond  any  reasonable  doubt.  It  can  hardly  be  even  

imagined that what torture and brutality the minor child must have  

faced during the course of commission of this crime.  All her private  

parts were swollen and bleeding.  She was bleeding through her  

nose and mouth.  The injuries, as described in EX.P17 (the post  

mortem  report)  shows  the  extent  of  brutal  sexual  urge  of  the  

accused,  which targeted a minor  child,  who still  had to  see the  

world.  He went to the extent of giving bites on her chest.  The pain  

and agony that he must have caused to the deceased minor girl is  

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beyond imagination and is the limit of viciousness.  This Court has  

to examine the conduct of the accused prior to, at the time as well  

as after the commission of the crime.  Prior thereto, the accused  

had been serving with PW5 and PW6 under a false name and took  

advantage of his familiarity  with the family of  the deceased.  He  

committed the crime in the most brutal manner and, thereafter, he  

opted not to explain any circumstances and just took up the plea of  

false implication, which is unbelievable and unsustainable.  When  

the Court draws a balance-sheet of the aggravating and mitigating  

circumstances,  for  the  purposes  of  determining  whether  the  

extreme sentence of death should be imposed upon the accused or  

not, the scale of justice only tilts against the accused as there is  

nothing but aggravating circumstances evident from the record of  

the Court.  In fact, one has to really struggle to find out if there  

were any mitigating circumstances favouring the accused.  Another  

aspect of  the matter is  that the minor child was helpless in the  

cruel hands of the accused.  The accused was holding the child in a  

relationship of ‘trust-belief’ and ‘confidence’, in which capacity he  

took the child from the house of PW2.   In other words, the accused,  

by  his  conduct,  has  belied  the  human relationship of  trust  and  

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worthiness.   

18. The accused left the deceased in a badly injured condition in  

the  open  fields  without  even  clothes.   This  reflects  the  most  

unfortunate  and abusive  facet  of  human conduct,  for  which the  

accused has to blame no one else than his own self.   

19. Thus, for the reasons afore-recorded, we find that the learned  

trial court was fully justified in law and on the facts of the present  

case, in awarding the extreme penalty of death for an offence under  

Section 302 IPC along with other punishments for other offences.  

We  find  no  justifiable  reason  to  interfere  with  the  judgment  of  

conviction and order  of  sentence  under  the  impugned judgment.  

The appeals are dismissed.

….………………………….,J. [A.K. Patnaik]

….………………………….,J. [Swatanter Kumar]

New Delhi; February 29, 2012

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