REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1488-1489 OF 2018

Ravi S/o Ashok Ghumare ..... Appellants(s)

                VERSUS

The State of Maharashtra .....Respondents(s)

JUDGMENT

SURYA KANT, J.

These appeals  assail  the  judgment  dated 20th January,

2016  passed  by  the  High  Court  of  Judicature  at  Bombay,

Bench at Aurangabad, confirming the death reference in the

Sessions  Case  No.  127  of  2012  decided  by  the  Additional

Sessions  Judge,  Jalna,  in  which  the  appellant  having  been

found guilty of committing offences punishable under Sections

302, 363,  376 and 377 of the Indian Penal Code (for  short,

“the IPC”),  has been awarded the sentence of  death under

Section  302,  IPC  along  with  the  sentence  of  rigorous

imprisonment(s) of different durations with fine for the rest of

offences.   The  Trial  Court  as  well  as  the  High  Court  have

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concurrently  held  that  the  case  falls  within  the  exceptional

category  of  `rarest  of  the  rare’  cases  where  all  other

alternative  options  but  to  award  death  sentence,  are

foreclosed.

2. The facts leading to the aforestated conclusion are to the

following effect:-

3. The informant Iliyas Mohinuddin (P.W.9) had been a fruit-

seller based in Jalna.  On 06.03.2012 at about 5.00 p.m. while

he was as usual busy in selling fruits, his wife informed him

that their  daughter  (in  short,  `the victim child’)  who was 2

years old,  was missing.  He along with his relatives started

looking for the child.  During their search, the informant came

to  know  from  Azbar  (P.W.2)  that  the  appellant  had  been

spotted  drunk  and  was  distributing  chocolates  to  small

children in the lane near the Maroti Temple.  The appellant was

also a resident of the same lane.  The informant went to the

appellant’s  house  which  was  found  locked.   As  the

whereabouts  of  the  missing  child  were  still  not  known,  the

informant lodged a formal missing report to the police.  He

also passed on the information to the police as received from

Azbar (P.W.2) regarding the distribution of chocolates amongst

small children by the appellant.  The police, therefore, came to

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the appellant’s house which had two doors.  One was found

locked from outside while the other was locked from inside.

Police broke open the door and entered the house along with

the informant,  his brother and a few  other persons.   They

found the appellant in the house; deceased-victim was lying

under the bed in a naked and unconscious condition.  Blood

was oozing out from her private parts and had multiple injuries

on her body.  She was covered in a blanket and taken to the

hospital where the doctor declared her brought dead.  Inquest

panchnama  was  prepared  and  the  body  was  sent  for  post

mortem.  A panel of doctors, including Dr. B.L. Survase and Dr.

Bedarkar (P.W. 7 and P.W.8 respectively) performed the post

mortem  and  found  multiple  injuries  on  the  person  of  the

victim.   They  opined  that  the  death  was  caused  due  to

throttling.   The informant  –  father  of  the  victim lodged the

report  at  12.30  a.m.  on  07.03.2012  on  the  basis  of  which

Crime  No.  56  of  2012  was  registered.  The  appellant  was

arrested  at  about  1.00  a.m.  on  the  same  day  by  the

Investigating Officer Rajinder Singh Gaur (P.W.12).  The clothes

worn by the appellant were seized and the seizure panchnama

was drawn in the presence of panchnama witnesses – Sheikh

Arshad and Sheikh Nayeem.   

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4. Iliyas  (P.W.9),  the  father  of  the  deceased-victim  also

produced the clothes worn by her which too were duly seized

in  the  presence  of  Syed  Muzeeb  (P.W.1)  and  Mohd.  Akbar

Khan.  The scene of crime panchnama was drawn and articles

found  on  the  spot  were  also  seized.   The  appellant  was

referred  for  medical  examination  to  Ghati  Hospital,

Aurangabad.   The appellant’s  blood samples were taken on

11.3.2012 and sent to Mumbai for DNA examination along with

the seized muddemal.   The blood samples  of  the appellant

were taken again on 13.03.2012 and were sent for the DNA

test.

5. On filing of the chargesheet, charges under Sections 363,

376 and 302, IPC were framed to which the appellant did not

plead guilty and claimed trial.   Thereafter, prosecution moved

an application for framing an additional charge under Section

377, IPC.  The said application was allowed and charge under

Section 377 was framed to which also the appellant did not

plead guilty.  His defence was of total denial and that he was

falsely implicated.

6. The  prosecution  examined  12  witnesses  in  all.   The

following points thus arose for consideration of the Trial Court:-

“1. Whether the prosecution proves that accused on

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6.3.2012 at about 16.00 Hrs. in the vicinity of Indira Nagar,  old  Jalna,  Taluka  and  District  :  Jalna, kidnapped xxx.. d/o Iliyas Pathan a minor girl under 16  years  of  age  from  her  lawful  guardianship  & without  his  consent,  and  thereby  committed  an offence punishable u/s 363 of I.P.C.?

2.  Whether  the  prosecution  further  proves  that accused on above date, time and place of offence, committed rape on xxx.. and thereby committed an offence punishable u/s 376 of IPC?

3.  Whether  the  prosecution  further  proves  that accused on above date, time and place of offence, committed carnal  intercourse against  the order  of nature with minor girl xxx.. and thereby committed an offence punishable u/s 377 of IPC?

4.  Whether  the  prosecution  further  proves  that accused on above date, time and place of offence, committed  murder  intentionally  or  knowingly causing death of xxx.., and thereby committed an offence punishable u/s 302 of IPC?”

7. The Trial Court discussed the evidence at length in the

context of each point and answered them in the affirmative.  It

held  the appellant  guilty  of  the offences referred to  above.

The  Trial  Court  thereafter  compared  the  `aggravating

circumstances’  vis-a-vis  the  `mitigating  circumstances’  and

having found that the crime was committed in a most brutal,

diabolical  and  revolting  manner  which  shook  the  collective

conscience of the society, it found that the R.R. Test (rarest of

the rare  cases)  is  fully  attracted,  hence capital  punishment

was imposed on the appellant under Section 302, IPC.

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8. The High Court considered the death reference as well as

the appeal preferred by the appellant against the trial Court

judgment  and  after  scrutinising  the  prosecution  evidence,

reached the following factual issues:-

“A. Accused was found with victim girl in a house one door of which was locked from outside and another door closed from inside,

B. Multiple injuries found on the person of victim,

C.  Medical  evidence  showing  that  the  girl  was forcibly raped and done to death,

D. Recovery of blood stained jeans pant and full bush shirt (torn) from the accused,

E. Motive,  

F. Failure of accused to offer plausible explanation to the incriminating circumstances against him.”

9. The High Court held that the circumstances conclusively

prove that all the pieces of the puzzle fit so perfectly that they

leave no reasonable ground for a conclusion consistent with

the hypothesis of the innocence of the appellant, rather the

same leads to the irrefutable conclusion that it is the appellant

who  took  away  the  victim  child  to  his  house,  sexually

assaulted her, committed unnatural intercourse and throttled

her to death.  Consequently, the conviction of the appellant

under Sections 302, 376, 377 and 363 of the IPC. was upheld.

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10. The High Court thereafter engaged itself on the question

of quantum of sentence and as to whether the R.R. Test was

attracted to the facts  and circumstances of  this  case.   The

High Court drew up the balance sheet of the `aggravating’ and

`mitigating’  circumstances  and  after  their  comparative

analysis,  it  concurred with the extreme penalty awarded by

the trial Court and confirmed the death sentence.

11. We have heard Ms. Nitya Ramkrishnan, Learned Counsel

for the appellant and Mr. Nishant R. Katneshwarkar, Learned

Counsel for the State of Maharashtra on merits as well as on

the  contentious  issue  re:  quantum  of  sentence  and  have

minutely perused the relevant record.

12. Learned Counsel for the appellant argued that there are

chinks in the culpability calculus that have a direct bearing on

the quantum of sentence as well.  She urged that according to

Azbar  (P.W.2),  the  appellant  was  distributing  chocolates  to

children near Maroti Temple around 3.30 to 4.00 p.m. and that

the  mother  of  the  victim  called  her  husband  Iliyas  (P.W.9)

around 5.00 p.m. to inform that the deceased-victim had been

missing since 4.00 p.m.  There is no evidence that she was

one  amongst  the  children  to  whom  the  appellant  was

distributing chocolates; where had the victim been until 4.00

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p.m. and where and when was she last seen and in whose

company?  The argument is that the victim was not lastly seen

in the company of the appellant.  It was then urged that the

appellant’s house is four houses away from that of the victim;

there  are  other  houses  next  and  opposite  to  that  of  the

appellant,  therefore,  it  is  unbelievable that  nobody saw the

victim child being taken away by the appellant.  She pointed

out that five policemen entered the house of the appellant and

the informant (P.W.9) also statedly accompanied them but the

police officials in their depositions have not made any such

reference.

13. According  to  Learned  Counsel  for  the  appellant,  Azbar

(P.W.2)  also  went  to  the  house  of  the  appellant  only  after

learning that the victim had been traced in the house of the

appellant, yet he claims to have seen the appellant under the

cot while the victim was on the cot inside the house.  It was

unbelievable that even after the police had entered the 10x10

room and had hunted him out, the appellant would still remain

under the cot until P.W.2 reached the spot.  Similarly, Aslam

(P.W.5) who is the maternal uncle of the victim, also went to

the appellant’s  house only after  the victim had been found

there.   Yet,  he  too  found  the  appellant  under  the  cot.

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According to the Learned Counsel, all these witnesses, namely,

P.W.2, P.W.3,  P.W.4, P.W.5 and P.W.9 have been set out after

learning that the child had been found purportedly to describe

a scene immediately upon entering the house, which naturally

cannot be the case.  It was strongly urged that most of these

persons did not witness the crime or scene of the crime as

they have deposed that the child and the appellant were found

in a state of undress, only Dilip Pralhadrao Tejan (P.W.3), who is

a police official, says that the appellant was found outraging

the modesty of the child.  It thus suggests that the testimony

of all these witnesses is not accurate and at best it leads to an

inference that the child was found in the same house as was

the appellant.  It was pointed out that the testimony of P.W.3,

P.W.4 and P.W.9 varies at the point as to what they saw on

entering the house.  However, P.W.3’s statement claiming that

the appellant was found outraging the modesty of the child

under  the  bed,  is  different  from the  version  of  others  who

found a cloth around the bed and could see the appellant and

the victim only when the cloth was removed.  P.W.9 (father of

the victim child) does not state the same facts as have been

described  by  P.W.3  or  P.W.4  and  thus  there  is  inconsistent

version on what was seen inside the appellant’s house upon

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entering.

14. It was then urged that the houses in the area were in a

close cluster and it would have been difficult for the appellant

to  take  the  child  away  without  being  noticed  by  anyone.

Further, prosecution has failed to establish two crucial facts,

namely, the place where the victim child was last seen and the

estimated time of her death.  In the absence of surety of these

two facts as to when was the victim child last seen alive and

her approximate time of death, the recovery of her dead body

between 9.30-10.00 p.m. in the house of the appellant per se

is  insufficient  to  establish  the  charge  beyond  reasonable

doubt.

15. It was contended that even as per P.W.9 (the informant)

the appellant along with his family had been residing in that

very house since the past 7-10 years, but the prosecution has

failed to explain as to where had the other members of the

family  been  during  those  six  hours,  between  4.00  p.m.  to

10.00 p.m. on that fateful day.  This assumes significance in

view of the DNA report which merely indicates that they are

from the same paternal progeny.

16. Learned Counsel lastly urged that since the basis for the

match in DNA report is the comparison with the blood sample

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of the appellant,  it  was imperative upon the prosecution to

establish  that  the sample  indeed was that  of  the appellant

only.  The person, who drew the blood sample has not been

examined as a witness nor  the contemporary record of  the

procedure for taking blood sample has been explained.  There

is only a bald statement of the Investigating Officer that the

appellant was referred to Ghati hospital, Aurangabad.  There is

no memo or material to show as to who collected the blood

sample of the appellant, when was the sample collected and

where and how was it preserved.  As against it, the medical

examination  reports  and  sample  collection  reports  of  the

appellant  (Exbts.  21,  21A  and  22)  indicate  that  no  blood

sample  was  taken  which  shows  the  incorrectness  of  the

Investigating Officer’s testimony.  The chemical lab at Mumbai

also does not mention any receipt of a blood sample of the

appellant.  She argued that the prosecution has strongly relied

on the D.N.A. evidence despite the fact that the method of

analysis  used,  i.e.,  Y-Chromosome  Short  Tandem  Repeat

Polymorphism (Y-STR) has certain inherent limitations due to

which  accurate  identification  of  the  accused  cannot  be

established  beyond  a  reasonable  doubt.   Unlike  other

processes like autosomal STR analysis, Y-STR analysis does not

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allow for individual identification in the same male lineage. It

was thus contended  that the prosecution has failed to bring

the guilty at home, hence the appellant deserves the benefit

of doubt.

17. Learned  State  Counsel,  however,  refuted  all  the

appellant’s  contentions and took us through the ocular  and

medical evidence, especially the eye-witness’s account to urge

that there is no error or lapse worth whispering committed by

the  prosecution  in  establishing  the  appellant’s  guilt.   He

extensively  referred  to  the  relevant  parts  of  the  impugned

judgments  to  explain  as  to  how  the  `aggravating’  and

`mitigating’ circumstances have been drawn up and weighed

before awarding or confirming the death sentence.

18. Before  entering  the  hassled  arena  of  sentencing,  it  is

apropos to recapitulate the facts and evidence on record  to

find out whether the prosecution has been able to prove the

charges against the appellant beyond any reasonable doubt.

19. The victim was not even 2-year  old when she died an

unnatural  death.   The  post  mortem  was  conducted  on

07.03.2012  by  a  panel  of  doctors,  which  included  Dr.  B.L.

Survesh (P.W.7) and Dr. Bedarkar (P.W.8).  According to Dr. B.L.

Survesh,  the  external  injuries  corresponded  to  the  internal

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injuries and were sufficient in the ordinary course of nature to

cause death.  All the injuries were ante-mortem and the cause

of death was throttling.   The Medical  Board found following

injuries on external examination on the body of the deceased-

victim:-

1. Linear abrasion on right side of chest 2 cm, oblique, reddish in colour.

2. Abrasion over left zygomatic area, 5 x 2 cm.

3.  Linear  abrasion,  left  side  of  neck,  above clavicle reddish, about 1 cm in length and 2 in number.

4. Linear abrasion, left scapular region, two in number, one below other 2½ cm. reddish in colour.

5.  Abrasion,  5  in  number,  at  the  centre  over  lower back, ½ x 1 cm each in size.

6. Contrusion over vault ½ x ½ cm.

7.  Abrasion over  right  sub mandibular  region,  1  cm reddish.

8. Abrasion, right supra clavicular region, 2 in number, ½ cm each, over above other.

     20. The panel of doctors further found following injuries on

the internal examination of the body:-   

1. Neck  dissection  under  the  skin,  contusion  to  muscle and subcutaneous tissues  corresponding  to  abrasions on skin.

2. Right and left lungs congested.

3. Heart was found congested.

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4. Right side of the heart was full of blood and left side was empty.

5. Tongue was inside the mouth between the teeth.

6. Stomach  was  congested  and  was  containing  semi- digested food.                              

21. On the  vaginal  examination  of  the  victim,  evidence  of

tear at posterior vaginal wall and triangular shape tear 2x1x½

cm. was noticed and hymen was found ruptured.  Dr.Survase

(P.W.7)  has  deposed  that  “on  perusal  of  report  as  to

examination  of  anal  swab  in  DNA  report,  and,  considering

observation in clause 15 of the post mortem report, I  opine

that there was unnatural sex.”  Similarly, Dr.Bedarkar (P.W.8)

after perusing the same DNA report and post mortem report

has stated that, “ I opine that vaginal and anal intercourse was

performed.”

22. It, therefore, stands established beyond any pale of doubt

that  the  victim child  was  subjected  to  forcible  vaginal  and

anal/unnatural  intercourse and she died of  asphyxia  due to

throttling.

Connection between the appellant and the crime

23. Azbar  (P.W.2)  had  known  the  appellant  since  their

childhood as both of them had been residing in the same lane.

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On 06.03.2012, while going towards his house at about 3.30 to

4.00  p.m.  he  met  the  appellant  who  was  drunk  and  was

distributing  chocolates  to  children  near  Maroti  Temple.   His

friend Gayas called him [Azbar (P.W.2)] at 5.00 p.m. to inform

that the victim, daughter of Iliyas, was missing.  They started

looking  for  the  child  near  Bhagya  Nagar  Railway  Station,

Mhada  Colony,  Aurangabad  Chouphuly,  Sanjay  Nagar,  etc.

Then he got to know that the victim had been traced in the

house of  the appellant.   P.W.2 then went to  the appellant’s

house at Indira Nagar. There was a crowd of people there and

police was already present when he entered the house and

saw that the child was lying on a cot and a blanket was put on

her body. The appellant was under the said bed.  The witness

also slapped the appellant 2-3 times before the police took the

later.  P.W.2 was called on the next day on 07.03.2012 for spot

panchnama.  One white paper, a pencil, blue broken bangle,

one  pass  book  carrying  names  of  Reena  and  Lakshmi  Bai

Ghumare and one piece of a saree was found and seized by

the police and kept in an envelope.  The panchnama bears his

signatures.  In his cross-examination, P.W.2 has categorically

stated that though the parents of the appellant are alive but

they were not present at his house at the time of occurrence.

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He  has  explained  in  detail  as  to  how  the  panchnama was

prepared.

24. Dilip Pralhadrao Tejan (P.W.3) the police official, had been

attached to Kadim Jalna police station on 06.03.2012.   The

missing  report  lodged  by  Ilias  (P.W.9)  about  his  2-year  old

daughter was handed over to P.W.3 for inquiry.  P.W. 3 along

with  policemen  Katake,  Jawale,  Rathod  and  Chavan  was  in

Indira  Nagar  area  of  Jalna  where  he  got  to  know  that  the

appellant was seen distributing chocolates and icecream/fruits

to  minor  children.   P.W.3  along  with  other  police  officials,

therefore, went to the house of the appellant between 9.30 to

9.45  p.m.  and  found  that  there  were  two  doors,  one  was

locked from outside and the other from inside.  P.W.3 peeped

through the gap in the door and noticed some cloth around

the  bed.   He  called  the  appellant  by  name  but  nobody

responded.  The witness then broke open the door and entered

the house and found the appellant outraging the modesty of

the victim child under the bed.  The police-party covered the

baby with a quilt and placed her on the bed.  Meanwhile about

20 persons followed them including Aslam, the maternal uncle

of  the missing child.   The victim child  was sent along with

Aslam  for  medical  treatment.  Since  several  more  agitated

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persons  gathered  at  the  scene,  the  police  rescued  the

appellant and took him to the police station.  The peole were

demanding that the appellant be handed over to them.  On a

specific  court  question  as  to  in  which  manner  and in  what

circumstances P.W.3 saw the accused and the deceased, he

had answered in no uncertain terms that the “deceased kid

was found naked and blood was oozing from her mouth and

private  parts.   There  was  no  shirt  on  the  person  of  the

accused, his jean and trouser was found on his knee.  Accused

was also found naked.”

25. Constable Sanjay Katake (P.W.4) was also a member of

the police team led by API Dilip Pralhadrai Tejan which was

looking  for  the  missing  child  in  Indira  Nagar  area  of  Jalna.

P.W.4 has also unequivocally deposed that they were informed

by  the  people  in  the  vicinity  that  the  appellant  `used’  to

distribute icecream and chocolates among the children and on

that  day  also  he  was  seen  doing  so.   The  police  team,

therefore, went to the house of the appellant which had two

doors.  One of the door was locked from outside whereas the

other was from inside.  The police party called the appellant

by name, but he did not respond.  Then, they peeped through

the slit of the door and noticed a bed and some piece of cloth

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around it and got suspicious that there was somebody under

the bed.  They broke open the door and entered the house.

A.S.I.  Tejankar  removed  the  cloth  around  the  bed  and  the

police team found the appellant and the victim child under the

bed in  naked condition.   Tejankar  placed the child over  the

bed. “Blood was found oozing from mouth and private part of

that kid”.  The victim was wrapped in a blanket and rushed to

the hospital through her maternal uncle.  4-5 persons who had

entered  the  house  along  with  the  police  team  insisted  on

having  the  custody  of  the  appellant.   Meanwhile,  150-200

more  persons  gathered  at  the  spot.   The  appellant  was

rescued from the mob and taken to the police station.  The

mob  became aggressive  and  started  pelting  stones  on  the

police vehicles and the policemen.  Some loss was also caused

to the house of the appellant.  P.W.4 is the same police official

who lodged the report at Kadim Jalna Police Station (Exbt. 45).

In his cross-examination, it was suggested to P.W.4 that there

is a population of about 5000 in the vicinity and that he never

accompanied Mr. Tejankar, ASI and he knew nothing about the

incident.

26. Aslam (P.W.5) has deposed that deceased was daughter

of his sister.   The husband of his sister, Iliyas informed him on

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06.03.2012 on telephone that deceased was missing and he

asked him to bring a photograph of the victim to the police

station.  Aslam brought one photograph of the child to Kadim

Jalna  police  station  and  lodged  the  missing  report.   The

witness thereafter went to look for the missing child in Ambad

Chouphuly Railway Station and Moti Bagh area.  While he was

still  looking  for  her,  one  Hussain  Pathan  informed  him  on

phone that the child had been found so he immediately went

to the Indira Nagar area, Jalna to the house of the appellant.

He noticed that  the appellant  was under the bed while the

victim was lying on the bed.  There were no clothes on the

person of the child; she was wrapped in a blanket.  He then

took the victim to  Deepak Hospital,  Jalna,  then to  the Civil

Hospital, Jalna where the doctors declared her brought dead.

The witness has denied in  the cross-examination that  there

was any quarrel between Ilias (P.W.9), father of the victim and

the appellant.   

27. Nand  Kumar  Vinayakrao  Tope  (P.W.6)  is  a  police  head

constable, who was on duty at Kadim Jalna police station on

12.03.2012.   He  has  deposed  that  on  11.03.2012  he  was

asked to carry muddemal along with a covering letter which

he  deposited  on  12.03.2012  in  C.A.  Office,  Mumbai.   The

19

covering letter is Exbt. P-51.  He also carried the blood sample

of  the  appellant  to  C.A.  Office,  Mumbai  and  deposited  the

same on 14.03.2012.  He has categorically stated in his cross-

examination  that  the  blood  sample  of  the  appellant  bore

signatures of the doctors and panches.

28. We may now briefly refer to the statement of Ilias (P.W.9)

– father of the victim girl.  He has deposed that the child was

about two years old; he resides in Indira Nagar, Jalna along

with his  family,  including his  wife  Aysha;  the appellant  was

also residing in the same lane.  On the date of occurrence, i.e,

06.03.2012 he was selling fruits in Nutan Vasahat area of Jalna

when  his wife informed him on phone at about 5.00 p.m. that

their  daughter  had  been  missing  since  4.00  p.m.  He

immediately  went  home  where  his  father  and  brother  had

already  reached.   They  started  looking  for  the  child  in  the

adjoining localities.  The witness informed the police about his

missing daughter who also started searching for her.  Azhar

Usman  meanwhile  informed  him  that  the  appellant  while

under the `influence of liquor’ was distributing chocolates to

children.  P.W.9 then went to the house of appellant which was

found locked from outside.  The missing report of the child was

lodged around 8.00-8.30 p.m.  The witness also passed on the

20

information to  the police that  he had gathered from Azhar.

The  Police  party  too,  therefore,  reached  at  the  house  of

appellant and they broke open one of the doors.  The witness

and his brother entered the house along with the police and

found  that  his  daughter  was  lying  under  the  bed  and  the

appellant  was also  lying under  the bed.   His  daughter  was

naked and there were injuries on her person aw well as private

parts.  Police laid the child on the bed and after covering her

with a cloth she was taken to  Deepak Hospital, Jalna where

doctors  informed  that  the  victim  was  already  dead.   The

appellant killed her by pressing her throat.  The witness also

identified his signatures on the report lodged by him Exbt. P-

67.  The witness in his cross-examination denied any dispute

with  the  father  of  the  appellant  in  connection  with  the

purchase of the premises.

29. The other witness whose statement has a direct bearing

on  connecting  the  appellant  with  the  crime  is  API

Rajendrasingh Prabhusingh Gaur (P.W.12), who was attached

to Kadim JalnaPolice Station on 06.03.2012.  He arrested the

appellant  at  1.00  a.m.  on  07.03.2012.   The  appellant  was

brought to the police station by ASI Tejankar.  He has further

stated  that  “blue  jeans  and  green  shirt  on  the  person  of

21

accused  was  seized.   There  were  blood-stains  and  semen

stains  on  it.   The  seizure  panchnama Exbt.  P-19  bears  my

signature and also of the accused.”  He has further deposed

that the father of the victim produced knicker and frock worn

by the deceased victim and also the blanket in which she was

wrapped.   Blue  bangle,  painjan  were  also  seized  under

panchnama Exbt. P-32, which bears his signatures along with

those of the panches.  Muddemal articles shown at S.No. 125

in the chargesheet were the same.  Muddemal article Nos. 6

and 7 in the chargesheet were the clothes of the appellant.

The police officer (P.W.12) went to the spot and also collected

a paper having blood-stains, piece of blue bangle, a passbook

of post office and yellow piece of a saree having blood-stains.

All these articles were seized under his signatures and of the

panches.   P.W.12 has  further  stated that  the appellant  was

referred  to  Ghati  Hospital,  Aurangabad  for  his  medical

examination  and  report  Nos.  21  and  21A  were  obtained.

Appellant’s blood sample was taken on 11.03.2012 from S.D.H.

Ambad and all  the blood samples were sent to  Mumbai  for

DNA examination along with  a  forwarding letter  Exbt.  P-51.

Since  the  said  blood  sample  was  not  sent  as  per  the

prescribed format, another blood sample of the appellant was

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taken by the Medical Officer at S.D.H. Ambad on 13.03.2012

and  it  was  sent  along  with  the  covering  letter  Exbt.  P-52.

P.W.12 also sent viscera of the victim on 12.03.2012 along with

letters which bear his signatures.  The report of the viscera

Exbt. P-81 was also obtained.  P.W.12 had further identified the

reports regarding clothes on the person of the victim and the

appellant Exbt.  P-82.   P.W.12 has been subjected to a fairly

long cross-examination but no discrepancy, having bearing on

the merits of the case, has been extracted.

30. After  a  tenacious  analysis  of  the  testimonies  of  the

witnesses with respect to the facts seen by each one of them,

there  remains  no  room  to  doubt  that  on  06.03.2012  the

appellant after taking liquor was seen distributing chocolates

to children sometime around 3.30/4.00 p.m.   The victim child

went missing around 4.00 p.m. as was informed to Ilias (P.W.9)

by his wife at about 5.00 p.m.  The information of her missing

was  immediately  circulated  amongst  the  family

members/relatives  and  all  of  them  desparately  started

searching for her.  Meanwhile, the missing report was lodged

with  police  as  well.   During  such  search  operations  by  the

police and also the family  members of the missing child,  it

surfaced  that  the  appellant  was  distributing  chocolates  to

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allure children near Maroti Temple on that day and around that

time the  child  went  missing.   The police-team,  Iliyas  –  the

father of the victim and his brother, genuinely apprehensive

and  smelling  something  foul,  reached  the  house  of  the

appellant and nabbed him red-handed under the bed with the

victim  in  naked  condition.   It  further  stands  established

conclusively that deceased had been brutally assaulted and

subjected to  vaginal  and unnatural  intercourse.   The victim

had  been  inflicted  multiple  injuries  on  face,  head,  neck,

external  genetalia as well  as inside the uterus and urethra.

We may in this regard refer to, in particular, the deposition of

Dilip Pralhadrai Tejan (P.W.3), who after making forceful entry

inside the appellant’s house, found him outraging the modesty

of the child.  The appellant had the special knowlege as to in

what  circumstances the victim child  suffered those multiple

injuries.   The burden to  prove that  those injuries  were  not

caused by him was on the appellant alone in view of Section

106  of  the  Evidence  Act,  which  he  has  miserably  failed  to

discharge though the evidence on record proves beyond doubt

that the victim child was in unlawful custody of the appellant

from about 4.00 p.m. till she breathed her last breath due to

the beastly attack on her.

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Scientific Evidence connecting the appellant with the Crime:     

31. Dr.  Bhanu  Das  Survase  (P.W.7)  was  a  member  of  the

panel  of  doctors,  who conducted post  mortem on the dead

body of the victim.  He has testified that samples of swabs,

blood sample and nails sample of the victim were taken by

them.  So is the statement of Dr.  Bedarkar (P.W.8) who has

stated that “various types of swabs, nasal swabs, superficial

vaginal swab, deep vaginal smear on slide, superficial vaginal

smear on slide, anus swab, skin scraping of blood on thigh and

abdomen, nails and blood samples of xxx.. were taken.”  He

has further deposed  that all samples were seized and handed

over to the police.  Police Inspector Rajendrasingh Prabhusingh

Guar  (P.W.12)  has  stated  on  oath  that  after  arresting  the

appellant, the blue jeans and green shirt on his person were

seized and that there were blood-stains and semen stains on

it.  The knicker and frock of the victim along with blanket in

which she was wrapped as well as various articles collected

from the  scene  of  crime  including  a  piece  of  saree  having

blood-stains, were seized.  The blood sample of the appellant

was also taken and all the seized articles/samples were sent to

Mumbai for examination.

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32. Shrikant  Hanamant  Lade  (P.W.11)  Assistant  Director  in

Forensic  Science  Laboratory,  Mumbai,  who  got  training  in

CDFD Institute, Hyderabad also, has authored about 30 papers

on DNA, besides a well known book `Forensic Biology’.  He has

testified  that  they  conducted  the  DNA  test  as  per  the

guidelines issued by the Director of Forensic Science, Ministry

of Home Affairs, New Delhi.  Their office received the sealed

muddemal  from Kadim,  Jalna Police Station sent  vide  letter

dated 11.03.2012 as also the blood sample of the appellant

sent  vide  letter  dated  13.03.2012  (Exbt.  P-52).   The  blood

sample of the victim was received on 12.03.2012 along with

samples of oral swabs and other articles.  P.W.11 analysed the

oral  swabs  and  other  articles  of  the  victim,  nasal  swabs,

superficial  vaginal  swab,  deep  vaginal  smear  on  slide,

superficial vaginal smear on slide, anus swab, skin scraping of

blood  on  thigh  and  abdomen,  nails  as  also  other  blood

samples.  P.W.11 has further deposed that,

“I have extracted DNA from blood sample of Accused Ravi  Ghumare,  Superficial  vaginal  swab  on  Exhibit No.3, deep vaginal swab Exhibit No.4, Deep vaginal swab on slide Exhibit No.5 superficial vaginal swab on slide  Exhibit  No.6,  anal  swab  Exhibit  No.7,  skin scrapping  of  blood  on  thigh  and  abdomen  Exhibit No.8, blood & semen detected on Exhibit No.3 Jeans pant. This DNA was amplified by using Y-chromosome specific marker, Y-chromosome short tandem repeat

26

polymorphism  [YSTR]  and  by  using  Polymerase Change  Reaction  [for  short  PCR]  amplification technique. DNA profile was generated. I analyzed all these  DNA  profiles.  My  interpretation  is  male haplotypes  of  semen  detected  on  Exhibit  No.3 Superficial  vaginal  swab  Exhibit  No.4  deep  vaginal sway  Exhibit  No.3  Superfinal  vaginal  swab  Exhibit No.4  deep  vaginal  sway  Exhibit  No.5  deep  vaginal smear on slide, Exhibit No.6 superficial vaginal smear on  slide,  Exhibit  No.7  anal  swab,  Exhibit  No.8  skin scrapings of blood on thigh and abdomen and blood and semen detected on Exhibit No.3, jeans pant of F.S X. ML Case No.DNA 951/12 matched with the male haplotypes  of  blood  sample  of  Exhibit  No.1,  Ravi Ashok Ghumare of F.S.L. ML Case No.DNA-209/12.  

My  opinion  is  DNA  profile  of  semen  detected  on Exhibit No.3 superficial vaginal swab, Exhibit 4 deep vaginal swab, Exhibit No.5 deep vaginal smear on slid Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8, skin scrapings of blood on thigh and abdomen, blood and semen detected on Exhibit  No.3  jeans  pant  of  F.S.L  ML  Case  No.DNA- 951/112 and blood sample of Exhibit No.1 Ravi Ashok Ghumare of F.S.LML Case No.DNA-209/12 is from the same paternal progeny.  

Accordingly, I prepared examination report filed with list  Exhibit  No.71  bear  my  signature,  Contents  are correct.  It  is  at  Exhibit  No.75.  Analysis of all  above DNA profiles is shorn in table in the same report. Blue jeans pant and shirt of Accused Exhibit No.3 & 4 were referred by biological section of our office. I extracted DNA from blood and semen detected Exhibit No.3, full jeans pant, blood detected on Exhibit No.4 full bush shirt,  and sample of  Ravi  Ghumare.  Then this  DNA was  amplified  by  using  15  STR  Loci  using  PCR amplification  technique.  My  interpretation  is  DNA profile of blood and semen detected on Exhibit No.3 full  jeans  pant,  blood detected  on  Exhibit  No.4  full bush shirt [torn] of F.S.l. ML. Case No.DNA-951/12 and blood sample of Ravi Ashok Ghumare is identical and from  one  and  same  source  of  male  origin.  DNA

27

profiles match with the maternal and paternal alleles in the source of blood.”

33. Shrikant  Lade  (P.W.11)  accordingly  prepared  the  DNA

report  which  is  duly  attested  by  the  Assistant  Chemical

Analyser also.  On seeing the contents of his report, P.W.11 has

pertinently deposed that “I  can opine on going through the

reports Exbts.  75-76 that there were sexual intercourse and

unnatural  intercourse  on  the  victim  by  the  accused  Ravi.”

[emphasis applied].

34. The  unshakable  scientific  evidence  which  nails  the

appellant  from all  sides,  is  sought to  be impeached on the

premise that the method of DNA analysis “Y-STR” followed in

the instant case is unreliable.   It  is suggested that the said

method  does  not  accurately  identify  the  accused  as  the

perpetrator;  and  unlike  other  methods  say  autosomal-STR

analysis, it cannot distinguish between male members in the

same lineage.

35. We are,  however,  not  swayed by the submission.   The

globally  acknowledged  medical  literature  coupled  with  the

statement  of  P.W.11  –  Assistant  Director,  Forensic  Science

Laboratory leaves nothing mootable that  in  cases of  sexual

assualt,  DNA  of  the  victim  and  the  perpetrator  are  often

28

mixed.  Traditional DNA analysis techniques like “autosomal-

STR” are not possible in such cases.  Y-STR method provides a

unique way of isolating only the male DNA by comparing the Y-

Chromosome which is found only in males.  It is no longer a

matter of scientific debate that Y-STR screening is manifestly

useful for corroboration in sexual assault cases and it can be

well  used as  excalpatory evidence and is  extensively relied

upon in various jurisdictions throughout the world.1&2.   Science

and  Researches have emphatically established that chances

of  degradation  of  the  `Loci’  in  samples  are  lesser  by  this

method and it  can  be more  effective  than other  traditional

methods of DNA analysis.  Although Y-STR does not distinguish

between the males of same lineage, it can, nevertheless, may

be used as a strong circumstantial  evidence to support the

prosecution case. Y-STR techniques of DNA analysis are both

regularly  used  in  various  jurisdictions  for  identification  of

offender in cases of sexual assault and also as a method to

identify suspects in unsolved cases.  Considering the perfect

match of the samples and there being nothing to discredit the

1“Y-STR analysis for detection and objective confirmation of child sexual abuse”, authored by Frederick C. Delfin – Bernadette J.  Madrid – Merle P.  Tan – Maria Corazon A. De Ungria.  2“Forensic  DNA Evidence:  Science  and the  Law”,  authored  by Justice  Ming W.  Chin, Michael Chamberlain, A,y Roja, Lance Gima

29

DNA  analysis  process,  the  probative  value  of  the  forensic

report as well as the statement of P.W.11 are very high.  Still

further,  it  is  not  the  case  of  the  appellant  that  crime  was

committed by some other close relative of him.  Importantly,

no other person was found present in the house except the

appellant.

36. There  is  thus  overwhelming  eye-witness  account,

circumstantial evidence, medical evidence and DNA analysis

on record which conclusively proves that it  is  the appellant

and  he  alone,  who  is  guilty  of  committing  the  horrendous

crime in this case.  We, therefore, unhesitatingly uphold the

conviction of the appellant.

Motive

37. Though the High Court has observed that `satisfaction of

lust’  and `removal  of  trace’  was the appellant’s motive but

motive is not an explicit requirement under the Indian Penal

Code, though `motive’ may be helpful in proving the case of

the  prosecution  in  a  case  of  circumstantial  evidence.   This

Court has held in a catena of decisions that lack of motive

would not be fatal to the case of prosecution as sometimes

human beings act irrationally and at the spur of the moment.

The  case  in  hand  is  not  entirely  based  on  circumstantial

30

evidence  as  there  are  reliable  eye-witness  depositions  who

have seen the appellant committing the crime, may be in part.

Such an unshakable evidence with dense support of DNA test

does not require the definite determination of the motive of

the appellant behind the gruesome crime.

Sentencing:

38. On  the  question  of  sentence,  Learned  Counsel  for  the

appellant vehemently urged that the Courts below have been

largely influenced by the `nature’ and `brutality’ of the crime

while awarding the extreme sentence of death penalty.  She

referred to a list of as many as 35 decisions rendered by this

Court  in  the  cases  of  rape  and murder  of  a  child-victim in

which  the  death  sentences  were  commuted  to  life

imprisonment.  It was urged that brutality of the crime alone is

not sufficient to impose the sentence of death; it is imperative

on the State to establish that the convict is beyond reform and

to  this  end  it  is  relevant  to  see  whether  this  is  the  first

conviction  or  there  has  been  previous  crimes.   The  socio-

economic conditions of the convict and the state of mind must

be assessed by the Court before awarding such a penalty; the

death penalty must not be awarded in a case of circumstantial

evidence  as  any  chink  in  the  culpability  calculus  would

31

interdict the extreme penalty.  Learned Counsel heavily relied

upon (i)  Kalu Khan v. State of Rajasthan (2015) 16 SCC

492 in which a three-Judge Bench of this Court commuted the

death sentence in murder, abduction and rape, holding that

the life imprisonment would serve the object of reformation,

retribution and prevention and that giving and taking life is

divine, which cannot be done by Courts unless alternatives are

foreclosed.  Another three-Judge Bench decision in  Sunil v.

State of Madhya Pradesh (2017) 4 SCC 393 where a 25-

year old was held guilty of murder and rape of a 4-year old

child, but not sent to gallows on the parameters that he could

be  reformed  and  rehabilitated,  has  been  pressed  into  aid.

She,  in  specific,  cited  several  three-Judge Bench judgments

where the young age of the accused was taken as a mitigating

circumstance and in the absence of previous criminal history,

the conduct of the accused while in custody and keeping in

view  the  socio-economic  strata  to  which  he  belonged,  the

possibility of reform was not ruled out and death penalty was

commuted.

39. Learned Counsel for the appellant placed great reliance

on a three-Judge Bench decision of this Court dated December

12, 2018 rendered in Rajindra Pralhadrao Wasnik v. State

32

of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 in

which the appellant was held guilty of rape and murder of a 3-

year old child and the death sentence was substituted by the

life imprisonment with a rider, “that the convict shall not be

released for the rest of his life”.  This Court viewed in that case

that (a) the case was solely based on circumstantial evidence,

(b) probability of reformation and rehabilitation could not be

ruled out, (c) DNA sample of the accused was taken, but not

submitted in the Trial Court, and (d) the factum of pendency of

two similar  cases against the accused reflecting on his bad

character was not admissible.  Yet another three-Judge Bench

decision  of  this  Court  in  Parsuram v.  State  of  Madhya

Pradesh (Criminal Appeal Nos. 314-315 of 2013), decided on

19th February, 2019 where also death sentence awarded to a

22-year  old  who was found guilty  of  rape and murder  of  a

minor girl, was commuted on the principles quoted above, has

been relied upon.

40. The appellant’s Counsel urged that the High Court ought

not  to  have  followed  (i)  Dhanjoy  Chaterjee  v.  State  of

West Bengal (1994) 2 SCC 220, which was later on doubted

by  this  Court  in  Shankar  Kishanrao  Khade  v.  State  of

Maharashtra (2013) 5 SCC 546 and (ii)  Shivaji v. State of

33

Maharashtra (2008)  3 SCC 269 which too was held to be per

curian in Santosh Kumar Satishbhushan Bariyar v. State

of Maharashtra (2009) 6 SCC 498.  She very passionately

urged that  neither  the  High  Court  nor  the  Trial  Court  have

given  reasons  for  imposition  of  death  penalty  as  both  the

Courts have been influenced by the nature of the crime.  The

mitigating circumstances of the appellant were inadequately

represented.  The brutality of the crime is the pre-dominant

ground for imposition of death penalty though this Court has

cautioned contrarily in a catena of decisions.  Both the Courts

have  failed  in   recording  a  finding  that  the  appellant  was

beyond reform and unless it  was so found, the case cannot

belong to the `rarest of the rare’ category.

41. Relying  upon  the  facts  like  (i)  lack  of  criminal

antecedents; (ii) no record of anti-social conduct prior to the

crime; (iii) appellant being 25-30 years of age; (iv) brutality of

crime cannot be a ground to award death sentence; and (v)

the appellant belongs to poor section of society, his learned

Counsel urged that this is not a fit case for imposition of death

penalty.

42. Learned  State  Counsel,  contrarily,  maintained  that  the

instant case satisfies the principle of `rarest of the rare cases’

34

and  the  appellant  who  committed  the  crime  of  rape  and

murder  of  a  barely 2-year  old innocent toddler  in  the most

dastardly manner, does not deserve any liniency.  According to

him, the appellant is a menace to the society and to deter

such like crimes against mankind, this Court should show no

misplaced sympathy.

43. The question which eventually falls  for  consideration is

whether the instant case satisfies the test of `rarest of the

rare cases’  and falls  in such exceptional  category where all

other alternatives except death sentence, are foreclosed and

whether  this  Court  should  explore  the  award  of  actual  life

imprisonment  as  prescribed  by  this  Court  in  Swamy

Shraddananda  @  Murli  Manohar  Mishra  v.  State  of

Karnataka (2008) 13 SCC 767 which has got seal of approval

of the Constitution Bench in Union of India v. V. Sriharan @

Murugan & Ors. (2016) 7 SCC 1.

44. The Constitution Bench of this Court in Bachan Singh v.

State  of  Punjab (1980)  2  SCC  684,  while  upholding  the

constitutionality of death penalty under Section 302 IPC and

the sentencing procedure embodied in Section 354(3) of the

Code  of  Criminal  Procedure,  struck  a  balance  between  the

protagonists of the deterrent punishment on one hand and the

35

humanity  crying  against  death  penalty  on  the  other  and

elucidated  the  strict  parameters  to  be  adhered  to  by  the

Courts for awarding death sentence. While emphasising that

for persons convicted of murder, life imprisonment is the `rule’

and death setnence an `exception’, this Court viewed that a

rule  abiding  concern  for  the  dignity  of  the  human  life

postulates  resistance  in  taking  the  life  through  laws

instrumentality and that the death sentence be not awarded

“save in  the rarest  of  the rare cases” when the alternative

option is foreclosed.

45. In Machhi Singh v. State of Punjab (1983) 3 SCC 470,

this  Court  formulated  the  following  two  questions  to  be

considered as a test to determine the rarest of the rare cases

in which the death sentence can be inflicted:

“(a) Is  there something uncommon, which renders sentence for imprisonment for life inadequate calls for death sentence?

(b) Rather the circumstances of the crime such that there  is  no  alternative,  but  to  impose  the  death sentence even after according maximum weightage to  the  mitigating  circumstances  which  speaks  in favour of the offender?”   

46. Machhi  Singh then  proceeded  to  lay  down  the

circumstances in which death sentence may be imposed for

the crime of murder and held as follows:-

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“32.  The reasons why the  community  as  a  whole does not endorse the humanistic approach reflected in  “death sentence-in-no-case” doctrine are not far to  seek.  In  the  first  place,  the  very  humanistic edifice  is  constructed  on  the  foundation  of “reverence for life” principle. When a member of the community  violates  this  very  principle  by  killing another  member,  the  society  may  not  feel  itself bound by the shackles of this doctrine. Secondly, it has  to  be  realized  that  every  member  of  the community is able to live with safety without his or her  own  life  being  endangered  because  of  the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates  as  a  deterrent  for  those  who  have  no scruples in killing others if it suits their ends. Every member  of  the  community  owes  a  debt  to  the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed,  the  community  may  well  withdraw  the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in  rarest  of  rare  cases”  when  its  collective conscience  is  so  shocked  that  it  will  expect  the holders of the judicial power centre to inflict death penalty  irrespective  of  their  personal  opinion  as regards desirability or otherwise of retaining death penalty.  The  community  may  entertain  such  a sentiment  when  the  crime  is  viewed  from  the platform  of  the  motive  for,  or  the  manner  of commission  of  the  crime,  or  the  anti-social  or abhorrent nature of the crime, such as for instance:  

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal,  grotesque,  diabolical,  revolting or dastardly manner  so  as  to  arouse  intense  and  extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with

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the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder  

34.  When  the  murder  is  committed  for  a  motive which  evinces  total  depravity  and  meanness.  For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder  is  committed  with  a  deliberate  design  in order  to  inherit  property  or  to  gain  control  over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

III.  Anti-social  or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for  personal  reasons  but  in  circumstances  which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past  injustices  and  in  order  to  restore  the  social balance.

(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to  remarry for  the sake of extracting dowry once again or to marry another woman on account of infatuation.  

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all  the members of a family or a large number of persons of a particular caste, community, or locality,

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are committed.

V. Personality of victim of murder

37. When the victim of murder is  (a)  an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis  whom  the  murderer  is  in  a  position  of domination or trust (d) when the victim is a public figure  generally  loved  and  respected  by  the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.....”

47. It  thus  spells  out  from  Machhi  Singh (supra)  that

extreme  penalty  of  death  sentence  need  not  be  inflicted

except in gravest cases of extreme culpability and where the

victim of a murder is ... (a) an innocent child who could not

have  or  has  not  provided  even  an  excuse,  much  less  a

provocation for murder...”, such abhorent nature of the crime

will certainly fall in the exceptional category of gravest cases

of extreme culpability.

48. This Court in Machhi Singh’s case confirmed the death

sentence awarded to Kashmir Singh - one of the appellants as

he was found guilty of causing death to a poor defenceless

child (Balbir Singh) aged 6 years.  The appellant Kashmir Singh

was  categorised  as  a  person  of  depraved  mind  with  grave

propensity to commit murder.

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49.  Bachan  Singh and Machhi  Singh,  the  Constitution

Bench  and  the  Three-Judge  Bench  decisions  respectively,

continue  to  serve  as  the  foundation-stone  of  contemporary

sentencing jurisprudence though they have been expounded

or  distinguished  for  the  purpose  of  commuting  death

sentence,  mostly  in  the  cases  of  (i)  conviction  based  on

circumstantial evidence alone; (ii) failure of the prosecution to

discharge  its  onus  re:  reformation;  (iii)  a  case  of  residual

doubts;  and  (iv)  where  the  other  peculiar  `mitigating’

circumstances outweighed the `aggravating’ circumstances.

50. It  is  noteworthy  that  the  object  and  purpose  of

determining quantum of sentence has to be `society centric’

without being influenced by a `judge’s’ own views, for society

is the biggest stake holder in the administration of criminal

justice  system.   A  civic  society  has  a  `fundamental’  and

`human’ right to live free from any kind of psycho fear, threat,

danger or insecurity at the hands of anti-social elements.  The

society legitimately expects  the Courts  to  apply  doctrine of

proportionality and impose suitable and deterent punishment

that commensurate(s) with the gravity of offence.

51. Equally important is the stand-point of a `victim’ which

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includes his/her guardian or legal heirs as defined in Section

2(wa), Cr.P.C. For long, the criminal law had been viewed on a

dimensional  plane  wherein  the  Courts  were  required  to

adjudicate between the accused and the State.  The `victim’-

the de facto sufferer of a crime had no say in the adjudicatory

process  and  was  made to  sit  outside  the  court  as  a  mute

spectator.   The  ethos  of  criminal  justice  dispensation  to

prevent and punish `crime’ would surreptitiously turn its back

on the `victim’ of such crime whose cries went unheard for

centuries in the long corridors of the conventional apparatus.

A few limited rights, including to participate in the trial have

now been bestowed on a `victim’ in India by the Act No. 5 of

2009 whereby some pragmatic changes in Cr.P.C. have been

made.

52.   The  Sentencing  Policy,  therefore,  needs  to  strike  a

balance between the two sides and count upon the twin test of

(i) deterrent effect, or (ii) complete reformation for integration

of the offender in civil society.  Where the Court is satisfied

that  there  is  no  possibility  of  reforming  the  offender,  the

punishments before all things, must be befitting the nature of

crime and deterrent with an explicit aim to make an example

out  of  the  evil-doer  and  a  warning  to  those  who  are  still

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innocent.  There  is  no  gainsaying  that  the  punishment  is  a

reflection  of  societal  morals.   The  subsistence  of  capital

punishment  proves  that  there  are  certain  acts  which  the

society so essentially abhores that they justify the taking of

most crucial of the rights – the right to life.

53. If the case-law cited on behalf of the appellant where this

Court commuted death sentence into life imprisonment for the

`rest of the life’ or so is appreciated within these contours, it

won’t need an elaborate discussion that the peculiarity of the

facts and circumstances of each case prompted this Court to

invoke  leniency  and  substitute  the  death  sentence  with  a

lesser  punishment.   The  three-Judge  Bench  decision  in

Rajendra Pralhadrai Washnik (supra) is clearly distinguisahable

on this very premise as that was a case, not only based on

circumstantial  evidence but where even the DNA sample of

the accused though taken was not submitted in the trial Court.

It was thus a case of “residuary doubts” as explained by this

Court in Ashok Debbarma v. State of Tripura (2014) 4 SCC

747.  The same analogy takes away the persuvasive force in

Parsuram (supra), for that too was a case where the guilt was

established only on the basis of circumstantial evidence.

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54. Contrary  to  it,  a  Three-Judge  Bench  of  this  Court  in

Vsanta Sampat Dupare v. State of Maharashtra (2017) 6

SCC 631, which is very close on facts to this case, found the

convict guilty of raping and battering to death a little girl of 4

years after luring her by giving chocolates.  The prosecution

established its case by relying upon the `last seen theory’ as

the appellant was seen taking away the victim on a bicycle on

the  fateful  day.   The  eye-witness  account,  the  disclosure

statement  made  by  the  accused  coupled  with  the  other

circumstantial  evidence  nailed  him.  The  death  setence was

confirmed  by  this  Court  on  26th November,  2014.   He,

thereafter  filed  a  Review  Petition  after  about  three  years,

claiming that post-confirmation of his death sentence, he had

improved  his  academic  qualification,  completed  the  Gandhi

Vichar  Pariksha  and  had  also  participated  in  the  Drawing

Competition organised sometime in January, 2016.  It was also

asserted  that  his  jail  record  was  without  any  blemish  and

there  was  a  possibility  of  the  accused  being  reformed  and

rehabilitated.  This Court dismissed the Review Petition by way

of  a  self-speaking  judgment,  holding  that  the  aggravating

circumstances,  namely,  the  extreme  depravity  and  the

barbaric manner in which the crime was committed and the

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fact that the victim was a helpless child of four years clearly

outweigh the mitigating circumstances now brought on record.

55. In  Khushwinder Singh v. State of Punjab,  (2019) 4

SCC 415, this Court affirmed the death sentence of an accused

who had killed six innocent persons, out of which two were

minors,  by  kidnapping  three  persons,  drugging  them  with

sleeping  tablets,  and  then  pushing  them  into  a  canal.

Thereafter, three other members of the same family were also

done  away  with.  This  Court  upheld  the  award  of  capital

punishment observing as follows:-  

“14. Now, so far as the capital punishment imposed by the learned Sessions Court and confirmed by the High Court is concerned, at the outset, it is required to  be  noted  that,  as  such,  the  learned  counsel appearing  on  behalf  of  the  accused  is  not  in  a position  to  point  out  any  mitigating  circumstance which warrants commutation of death sentence to the  life  imprisonment.  In  the  present  case,  the accused has killed six innocent persons, out of which two were minors — below 10 years of age. Almost, all the family members of PW 5 were done to death in a diabolical and dastardly manner. Fortunately, or unfortunately, only one person of the family of PW 5 could survive. In the present case, the accused has killed six innocent persons in a pre-planned manner. The convict meticulously planned the time. He first kidnapped three persons by way of deception and took them to the canal and after drugging them with sleeping  tablets,  pushed  them  in  the  canal  at midnight to ensure that the crime is not detected. That,  thereafter he killed another three persons in the second stage/instalment. Therefore, considering

44

the law laid down by this Court in  Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673]  ,  the  case  would  fall  in  the  category  of  the “rarest  of  rare  case”  warranting  death sentence/capital  punishment.  The  aggravating circumstances are in favour of the prosecution and against the accused.

Therefore,  striking  a  balance  between  the aggravating and mitigating circumstances, we are of the opinion that the aggravating circumstance would tilt the balance in favour of capital punishment. In the facts and circumstances of the case, we are of the opinion that there is no alternative punishment suitable,  except  the  death  sentence.  The crime is committed  with  extremist  brutality  and  the collective  conscience  of  the  society  would  be shocked. Therefore, we are of the opinion that the capital punishment/death sentence imposed by the learned Sessions Court and confirmed by the High Court  does  not  warrant  any  interference  by  this Court. Therefore, we confirm the death sentence of the accused imposed by the learned Sessions Court and confirmed by the High Court  while  convicting the  appellant  for  the  offence  punishable  under Section 302 IPC.”  

56.  In a recent Three-Judge Bench decision of this Court in

Manoharan v. State by Inspector of Police, Variety Hall

Police  Station,  Coimbatore,  (2019)  SCC  Online  951,  the

appellant’s  capital  punishment  was  confirmed  by  the  High

Court in a case in which he along with his co-accused was held

guilty  of  kidnapping  a  10-year  old  girl  and  her  7-year  old

brother.  After committing gang rape of the minor girl, both the

victims were done away with by throwing them into a canal

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which  caused  their  death  by  drowning.   This  Court  (by

majority) upheld the death sentence, concluding as follows:-

“41. In the circumstances, we have no doubt that the trial court and High Court have correctly applied and balanced aggravating circumstances with mitigating circumstances to find that the crime committed was cold blooded and involves the rape of a minor girl and  murder  of  two  children  in  the  most  heinous fashion possible. No remorse has been shown by the Appellant at all and given the nature of the crime as stated in paragraph 84 of the High Court’s judgment it is unlikely that the Appellant, if set free, would not be capable  of  committing  such  a  crime yet  again. The  fact  that  the  Appellant  made  a  confessional statement would not, on the facts of this case, mean that  he  showed  remorse  for  committing  such  a heinous crime. He did not stand by this confessional statement, but falsely retracted only those parts of the statement which implicated him of both the rape of the young girl and the murder of both her and her little  brother.  Consequently,  we  confirm  the  death sentence and dismiss the appeals.”

57. It  is  equally  apt  at  this  stage  to  refer  the  recent

amendments  carried  out  by  Parliament  in  the  Protection  of

Children  from  Sexual  Offences  Act,  2012  by  way  of  The

Protection of Children from Sexual Offences (Amendment) Act,

2019 as notified on 6th August,  2019.   The unamended Act

defines “Aggravated Penetrative Sexual Assault” in Section 5,

which  included,  “whoever  commits  aggravated  penetrative

sexual  assault  on  a  child  below  the  age  of  12  years.”

Originally,  the punishment for  an aggravated sexual  assault

46

was rigorous imprisonment for a  term not less than 10-years

but which may extend for imprisonment for life with fine.

58. The  recent  amendment  in  Section  6  of  2012  Act  has

substituted the punishment as follows:-

“Post  the  Amendment,  Section  6  has  been substituted as follows:-  

"6.  (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."

[Emphasis applied]

59. The  minimum  sentence  for  an  aggravated  penetrative

sexual assault has been thus increased from 10 years to 20

years and imprisonment for life has now been expressly stated

to be imprisonment for natural life of the person.  Significantly,

`death sentence’ has also been introduced as a penalty for the

offence of aggravated penetrative sexualt assault on a child

below 12 years.

60. The  Legislature  has  impliedly  distanced  itself  from the

propounders  of  “No-Death  Setence”  in  “No  Circumstances”

47

theory and has re-stated the will  of  the people that  in  the

cases of brutal  rape of  minor  children below the age of  12

years without murder of the victim, `death penalty’ can also

be  imposed.   In  the  Statement  of  Objects  and  Reasons  of

amendment, Parliament has shown its concern of the fact that

“in  recent  past  incidents  of  child  sexual  abuse  cases

administering the inhuman mindset of the accused, who have

been barbaric in their approach to young victim, is rising in the

country.”  If  the Parliament,  armed with adequate facts and

figures, has decided to introduce capital punishment for the

offence of sexual abuse of a child, the Court hitherto will bear

in  mind the  latest  Legislative  Policy  even though it  has  no

applicability in a case where the offence was committed prior

thereto.  The judicial precedents rendered before the recent

amendment came into force,  therefore,  ought to  be viewed

with a purposive approach so that the legislative and judicial

approaches are well harmonised.   

61. In the light of above discussion, we are of the considered

opinion that sentencing in this case has to be judged keeping

in view the parameters originating from  Bachan Singh and

Machhi  Singh cases  and  which  have  since  been

strengthened, explained, distinguished or followed in a catena

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of  subsequent  decisions,  some  of  which  have  been  cited

above.  Having said that, it may be seen that the victim was

barely a two-year old baby whom the appellant kidnapped and

apparently kept on assaulting over 4-5 hours till she breathed

her last.   The appellant who had no control  over his carnal

desires  surpassed all  natural,  social  and legal  limits  just  to

satiate his sexual hunger.  He ruthlessly finished a life which

was yet to bloom. The appellant instead of showing fatherly

love, affection and protection to the child against the evils of

the society,  rather made her the victim of lust.   It’s a case

where trust has been betrayed and social values are impaired.

The unnatural sex with a two-year old toddler exhibits a dirty

and perverted mind, showcasing a horrifying tale of brutality.

The appellant meticulously executed his nefarious design by

locking one door of his house from the outside and bolting the

other  one  from  the  inside  so  as  to  deceive  people  into

believing that nobody was inside.  The appellant was thus in

his  full  senses  while  he  indulged  in  this  senseless  act.

Appellant has not shown any remorse or repentance for the

gory crime, rather he opted to remain silent in his 313 Cr.P.C.

statement.   His  deliberate,  well-designed  silence  with  a

standard  defence  of  `false’  accusation  reveals  his  lack  of

49

kindness or compassion and leads to believe that he can never

be reformed.  That being so, this Court cannot write off the

capital  punishment  so  long as  it  is  inscribed in  the statute

book.

62.    All  that  is  needed to  be  followed by us  is  what  O’

Conner J. very aptly observed in California v. Ramos, 463 U.S.

992 that  the “qualitative  difference of  death  from all  other

punishments  requires  a  correspondingly  greater  degree  of

scrutiny of the capital sentencing determination” and in order

to ensure that the death penalty is not meted out arbitrarily or

capriciously, the Court’s principal concern has to be with the

procedure by which the death sentence is imposed than with

the substantive factors laid before it.  

63. For the reasons aforestated, we dismiss the appeals and

affirm the death sentence.    

………………………………..J. (ROHINTON FALI NARIMAN)

…………………………… J. (SURYA KANT)

NEW DELHI

DATED : 03.10.2019

50

         REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1488-1489 OF 2018

Ravi S/o Ashok Ghumare    ...Appellant

Versus

The State of Maharashtra     ...Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. I have gone through the opinion of my learned Brother,

Surya  Kant,  J.  I  am  in  agreement  with  the  view

expressed  in  the  said  judgment,  to  the  extent  of

confirming  the  conviction  recorded  against  the

appellant, for the offence under Sections 363, 376,

377 and 302 of the Indian Penal Code, 1860 (for short

‘IPC’). However, as I am of the view that, this is not

a  fit  case  where  the  appellant  is  to  be  awarded

capital punishment, i.e, death penalty, as such, I

wish to share my view separately, in this judgment.  

2. The appellant was tried for committing the rape and

murder on the minor girl child “Zoyabano” and he was

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charged  for  offence  punishable  under  Sections  363,

376,  377  and  302  IPC.  After  the  trial,  learned

Additional Sessions Judge at Jalna, by judgment dated

16.09.2015, has held that appellant is guilty for the

charges framed against him.

3. By  order  dated  18.09.2015,  the  trial  court,  by

recording  a  finding  that  crime  committed  by  the

appellant is heinous, brutal and inhuman, convicted

and sentenced the appellant to death for the offence

punishable under Section 302 IPC and ordered that he

shall be hanged by neck till he is dead, subject to

confirmation by the High Court as per Section 366 of

Code of Criminal Procedure and also imposed a fine of

Rs.500/-  (Rupees  Five  Hundred  Only).  Similarly,

learned Additional Sessions Judge has convicted the

appellant for offence punishable under Section 376 of

IPC and ordered sentence to suffer life imprisonment

and a fine of Rs. 500/-(Rupees Five Hundred Only) and

a sentence of rigorous imprisonment for 10 years for

the offence punishable under Section 377 IPC with a

fine  of  Rs.500/-(Rupees  Five  Hundred  Only)  and  a

sentence  of  R.I.  for  one  year  for  the  offence

punishable under Section 363 with a fine of Rs.500/-

(Rupees Five Hundred Only). Further, it was ordered

52

that  all  the  sentences  of  imprisonment  shall  run

concurrently.  

4. The reference which was made to the High Court under

Section 366 was numbered as Confirmation Case No.1 of

2015 and the appeal preferred by the appellant was

numbered as criminal appeal No. 783 of 2015. The High

Court  by  the  Common  Judgment  and  Order  dated

20.01.2016,  while  dismissing  the  criminal  appeal

preferred by the appellant, has confirmed the death

sentence imposed under Section 302 IPC. Hence, these

appeals.  

5. I  am  in  agreement  with  the  view  expressed  by  my

learned  Brother,  to  the  extent  of  upholding

conviction, as such, there is no need to appreciate

the evidence on-record in detail. As such, I confine

consideration of such evidence on-record to the extent

to modify the sentence on the appellant.

6. For the conviction recorded against the appellant for

the offences alleged against him, by balancing the

aggravated and mitigated circumstances, I am of the

view that the death sentence imposed on the appellant

requires  modification  to  that  of  the  life

imprisonment, without any remission, for the following

reasons.

53

7. For  the  offence  under  Section  302  of  IPC  the

punishment prescribed for committing murder is death

or imprisonment for life. At first instance, challenge

to Section 302 of IPC was turned down by this Court in

the case of Jagmohan Singh v. State of Uttar Pradesh3.

Further, in Constitution Bench, this Court in the case

of  Bachan Singh v. State of Punjab4, ,concluded that

Section 302, providing death penalty for offence of

murder is constitutional. In the aforesaid judgment,

this  Court  has  indicated  the  standards  and  norms,

restricting the area for imposition of death penalty.

Further, for considering the imposition of sentence of

death, aggravating and mitigating circumstances were

also  broadly  indicated.  In  the  aforesaid  judgment,

while considering the scope of Section 235(2) read

with Section 354(3) of the Code of Criminal Procedure,

this Court has held that, in fixing the degree of

punishment or in making the choice of sentence for

various  offences,  including  one  under  Section  302,

IPC, the Court should not confine its consideration

“principally or merely” to the circumstances connected

with the particular crime, but also due consideration

to the circumstances of the criminal. However, it is

3   1973(1) SCC 20 4   1980(2) SCC 684

54

observed that, what is the relative weight to be given

to the aggravating and mitigating factors, depends on

facts and circumstances of each case. The aggravating

and  mitigating  circumstances,  as  suggested  by

Dr.Chitale were mentioned in the Judgment. Paragraphs

202 to 207 of the judgment reads as under:

“202.  Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill  passed in  1978 by  the Rajya  Sabha,  in  particular,  Dr  Chitale has  suggested  these  “aggravating circumstances”: “Aggravating circumstances: A court may,

however,  in  the  following  cases  impose the penalty of death in its discretion:

(a)  if  the  murder  has  been  committed after  previous  planning  and  involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member  of  any  police  force  or  of  any public servant and was committed—

(i) while such member or public servant was on duty; or

(ii)  in  consequence  of  anything  done or attempted to be done by such member or  public  servant  in  the  lawful discharge  of  his  duty  as  such  member or public servant whether at the time of murder he was such member or public servant,  as  the  case  may  be,  or  had ceased  to  be  such  member  or  public servant; or

55

(d) if the murder is of a person who had acted  in  the  lawful  discharge  of his duty under Section 43 of the Code of Criminal  Procedure,  1973,  or  who had  rendered  assistance  to  a Magistrate  or  a  police  officer demanding  his  aid  or  requiring  his assistance  under  Section  37  and Section 129 of the said Code.”

203.  Stated  broadly,  there  can  be  no objection  to  the  acceptance  of  these indicators  but  as  we  have  indicated already,  we  would  prefer  not  to  fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

204. In Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] , the majority said: “It  is  constitutionally  permissible  to swing a criminal out of corporeal existence only if the security of State and Society, public  order  and  the  interests  of  the general  public  compel  that  course  as provided  in  Article  19(2)  to  (6)”.  Our objection is only to the word “only”. While it  may  be  conceded  that  a  murder  which directly  threatens,  or  has  an  extreme potentiality  to  harm  or  endanger  the security of State and Society, public order and the interests of the general public, may  provide  “special  reasons”  to  justify the imposition of the extreme penalty on the  person  convicted  of  such  a  heinous murder, it is not possible to agree that imposition  of  death  penalty  on  murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions  in  Section  302  of  the  Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its “ethos” nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of

56

Section 302 of the Penal Code, fully apply to  the  case  of  Section  354(3),  Code  of Criminal  Procedure,  also.  The  same criticism  applies  to  the  view  taken  in Bishnu Deo Shaw v. State of W.B. [(1979) 3 SCC 714 : 1979 SCC (Cri) 817] which follows the dictum in Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] .

205. In  several  countries  which  have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first-degree which, in  the  absence  of  any  ameliorating circumstances,  is  punishable  with  death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It  may  necessitate,  as  it  were,  a redefinition  of  ‘murder’  or  its  further classification.  Then,  in  some  decisions, murder  by  fire-arm,  or  an  automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of  offence.  No  exhaustive  enumeration  of aggravating circumstances is possible. But this  much  can  be  said  that  in  order  to qualify for inclusion in the category of “aggravating circumstances” which may form the basis of “special reasons” in Section 354(3), circumstance found on the facts of a  particular  case,  must  evidence aggravation  of  an  abnormal  or  special degree.

206. Dr  Chitale  has  suggested  these mitigating factors:

“Mitigating circumstances— In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the  influence  of  extreme  mental  or emotional disturbance.

57

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not  commit  criminal  acts  of  violence  as would  constitute  a  continuing  threat  to society.

(4) The probability that the accused can be  reformed  and  rehabilitated.  The  State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally  justified  in  committing  the offence.

(6)  That  the  accused  acted  under  the duress or domination of another person.

(7)  That  the  condition  of  the  accused showed that he was mentally defective and that the said defect impaired his capacity to  appreciate  the  criminality  of  his conduct.”

207.  We will do no more than to say that these  are  undoubtedly  relevant circumstances  and  must  be  given  great weight  in  the  determination  of  sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special  enactments,  according  to  which  a “child”, that is, “a person who at the date of murder was less than 16 years of age”, cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor  dealt  with  according  to  the  same criminal procedure as an adult. The special Acts  provide  for  a  reformatory  procedure for such juvenile offenders or children.”

8. Further in the three Judge Bench Judgment of this

Court, in the case of Machhi Singh and Ors. v. State

58

of  Punjab5,  this  Court  has  considered  tests  to

determine  “rarest  of  rare”  case,  to  impose  death

sentence under Section 302 IPC.

9. In the aforesaid judgment, this Court has held that

the following questions may be asked and answered, in

order  to  apply  the  guidelines  indicated  in  Bachan

Singh case2, where the question of imposing the death

sentence arises.

(a) Is there something uncommon about the crime which

renders sentence for imprisonment for life inadequate

and calls for a death sentence?

(b) Are the circumstances of the crime such that

there is no alternative but to impose death sentence

even  after  according  maximum  weightage  to  the

mitigating circumstances, which speak in favour of the

offender?

10. In this judgment, it is held by this Court that the

guidelines indicated in Bachan Singh case2, will have

to be culled out and applied to the facts of each

individual case, where the question of imposing death

sentence arises. Paragraph 38 of the said judgment

reads as under:

“38.  In  this  background  the  guidelines indicated in  Bachan Singh case2   will have

5    1983(3) SCC 470

59

to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following prepositions emerge from  Bachan Singh case2 :

(i) The extreme penalty of death need not  be  inflicted  except  in  gravest cases of extreme culpability. (ii)  Before  opting  for  the  death penalty  the  circumstances  of  the ‘offender’ also require to be taken into  consideration  along  with  the circumstances of the ‘crime’. (iii) Life imprisonment is the rule and death sentence is an exception. In other  words  death  sentence  must  be imposed  only  when  life  imprisonment appears to be an altogether inadequate punishment  having  regard  to  the relevant circumstances of the crime, and provided, and only provided, the option  to  impose  sentence  of imprisonment  for  life  cannot  be conscientiously  exercised  having regard to the nature and circumstances of  the  crime  and  all  the  relevant circumstances. (iv) 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  just balance has to be struck between the aggravating  and  the  mitigating circumstances  before  the  option  is exercised.

11.  In this judgment, on facts, by holding that it is a

cold-blooded,  calculated  and  gruesome  multiple

murders,  as  a  reprisal  in  a  family  feud  and  17

helpless,  defenceless,  innocent  men,  women  and

children were gunned down while asleep on the same

60

night in quick succession in different neighbouring

villages,  confirmed  the  death  sentence  imposed  on

Machhi Singh and two others.

12. In this case, learned counsel for the appellant has

contended that the Trial Court as well as the High

Court, fell in error in confining nature and brutality

of crime alone, to award the sentence of death. It is

submitted that nature of crime alone is not sufficient

to impose the sentence of death, unless State proves

by leading cogent evidence that the convict is beyond

reform and rehabilitation. It is submitted that the

socio-economic  conditions  of  the  convict  and  the

circumstances  under  which  crime  is  committed  are

equally  relevant  for  the  purpose  of  considering

whether a death penalty is to be imposed or not. It is

submitted  that  as  the  case  on  hand,  rests  on

circumstantial evidence, same is also the ground not

to impose capital punishment, of death.

13. In support of his argument, learned counsel for the

appellant has relied on the three Judge Bench Judgment

of this Court, in the case of Kalu Khan v. State of

Rajasthan6,  wherein  the  accused  was  charged  for

offence of abduction, rape and murder of 4 year old

6(2015) 16 SCC 492

61

girl  child,  death  sentence  was  commuted  to  life

imprisonment.  Paragraphs  32  and  33  of  the  said

judgment reads as under:

“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.

33. Before parting, we would reiterate the sentiment reflected in the following lines by this Court in Shailesh Jasvantbhai case [Shailesh Jasvantbhai v. State of Gujarat, (2006)  2  SCC  359  :  (2006)  1  SCC  (Cri) 499] : (SCC pp. 361-62, para 7)

“7. … Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone  of  the  edifice  of  ‘order’ should meet the challenges confronting the

62

society. Friedman in his Law in a Changing Society stated that: ‘State of criminal law continues  to  be  —  as  it  should  be  —  a decisive reflection of social consciousness of  society.’  Therefore,  in  operating  the sentencing  system,  law  should  adopt  the corrective machinery or deterrence based on factual  matrix.  By  deft  modulation, sentencing process be stern where it should be,  and  tempered  with  mercy  where  it warrants to be.”

14. In the case of  Lehna v. State of Haryana7,  it was

held that the special reasons for awarding the death

sentence  must  be  such  that  compel  the  court  to

conclude  that  it  is  not  possible  to  reform  and

rehabilitate the offender. Paragraph 14 of the said

judgment reads as under:

“......Death  sentence  is  ordinarily  ruled out and can only be imposed for “special reasons”,  as  provided  in  Section  354(3). There  is  another  provision  in  the  Code which also uses the significant expression “special  reason”.  It  is  Section  361. Section 360 of the 1973 Code re-enacts, in substance,  Section  562  of  the  Criminal Procedure  Code,  1898,  (in  short  “the  old Code”).  Section  361  which  is  a  new provision  in  the  Code  makes  it  mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court  to  apply  the  provisions  of  Section 360 wherever itis possible to do so and to state “special reasons” if it does not do so.  In  the  context  of  Section  360,  the “special  reasons”  contemplated  by  Section 361 must be such as to compel the court to hold that it is impossible to reform and

7(2002) 3 SCC 76

63

rehabilitate  the  offender  after  examining the  matter  with  due  regard  to  the  age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the  legislature  that  reformation  and rehabilitation  of  offenders  and  not  mere deterrence,  are  now  among  the  foremost objects of the administration of criminal justice  in  our  country.  Section  361  and Section  354(3)  have  both  entered  the statute-book at the same time and they are part of the emerging picture of acceptance by  the  legislature  of  the  new  trends  in criminology.  It  would  not,  therefore,  be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining  the  sentence  to  be  awarded. Special reasons must have some relation to these factors.”

15. Learned counsel for the appellant has also relied on

the three Judge Bench Judgment of this Court, in the

case of Sunil v. State of Madhya Pradesh8, wherein the

accused, aged about 25 years at the relevant time, was

charged for offence of rape and murder of 4 year old

child, death sentence was commuted to that of life

imprisonment. In the said judgment, this Court has

held  that  one  of  the  compelling/mitigating

circumstances that must be acknowledged in favour of

the  appellant  is  his  young  age  at  which  he  had

committed the crime and further that the accused can

8(2017) 4 SCC 393

64

be  reformed  and  rehabilitated,  are  the  other

circumstances which could not but have been ignored by

courts below.

16. Reliance is also placed by learned counsel for the

appellant, on the three Judge Bench Judgment of this

Court, in the case of Rajendra Pralhaderao Wasnik v.

State of Maharashtra9, where accused was found guilty

of rape and murder of 3 year old child, death sentence

was substituted by life imprisonment, with a rider

that the convict shall not be released from custody

for the rest of his normal life.

17.  The  aforesaid  three  judgments  relied  on  by  the

learned counsel for the appellant, supports the case

of  the  appellant,  when  we  consider  to  balance  the

aggravating and mitigating circumstances of this case

on hand.

18. From the deposition of PW-9, it is clear that he is

a fruit vendor, residing in Nutan Vasahat area, Jalna

and  the  appellant  also  resides  in  the  same  lane.

Further, it is also clear from his deposition that

accused was under influence of liquor, on the day of

occurrence of crime. As such, it is clear that on the

day of occurrence, he was under influence of liquor

9Review Petition (Criminal) Nos. 306-307 of 2013

65

and he is aged about 25 years and he had no previous

history of any crimes and in absence of any evidence

from  the  side  of  the  prosecution  to  show  that  he

cannot be reformed and rehabilitated to bring in to

the main stream of the society, the judgments relied

on by learned counsel for the appellant, fully support

the case of the appellant, to modify the sentence.

19. In the case of  Machhi Singh and Ors. v. State of

Punjab3,  this  Court  has  confirmed  that  the  death

sentence to Machhi Singh and two others, mainly by

recording  a  finding  that  it  was  a  cold-blooded,

calculated and gruesome murders, as a reprisal in a

family  feud,  in  which,  17  helpless,  defenceless,

innocent men, women and children were gunned down, as

such, same can be termed as “rarest of rare” case. In

the case on hand, it cannot be said to be a pre-

planned and pre-meditated one. To record a finding

that a particular crime committed is a pre-planned and

pre-meditated  one,  something  more  is  required  of

planning to commit a murder on a day earlier to the

date of occurrence. In the case on hand, where it is

clear from the evidence on-record that the appellant

was  under  influence  of  liquor  and  committed  the

offence, cannot be termed as a pre-planned one, to

66

count the same as an aggravating circumstance, for

balancing aggravating and mitigating circumstances.  

20. In the case of  Sandesh v. State of Maharashtra10,

this  Court,  once  again,  acknowledged  the  principle

that it is for the prosecution to lead evidence, to

show that there is no possibility that the convict

cannot be reformed. Similarly, in  Mohinder Singh v.

State of Punjab11, it was held in Paragraph 23 of the

judgment as under:

“......As  discussed  above,  life imprisonment can be said to be completely futile,  only  when  the  sentencing  aim  of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”

21. In  the  case  of  Sushil  Sharma  v.  State  (NCT  of

Delhi)12,  this Court acknowledged that among various

factors, one of the factors required to be taken into

consideration, for awarding or not awarding capital

punishment,  is  the  possibility  of  reformation  and

rehabilitation of the convict. This acknowledgment was

made in paragraph 103 of the judgment, which reads as

under:

10(2013) 2 SCC 479 11(2013) 3 SCC 294 12(2014) 4 SCC 317

67

“103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of  the  criminal,  his  social  status,  his background,  whether  he  is  a  confirmed criminal  or  not,  whether  he  had  any antecedents,  whether  there  is  any possibility  of  his  reformation  and rehabilitation  or  whether  it  is  a  case where the reformation is impossible and the accused is likely to revert to such crimes in  future  and  become  a  threat  to  the society  are  factors  which  the  criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.”   

22. In the case of Amit v. State of Maharashtra13, this

Court adverted to the prior history of the accused and

noted that there is no record of any previous heinous

crime and also there is no evidence that he would be a

danger to the society if the death penalty is not

awarded  to  him.  Paragraph  10  of  the  said  judgment

reads as under:

“10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death

13(2003) 8 SCC 93

68

penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases.......”

23. In the case of Surendra Pal Shivbalakpal v. State of

Gujarat14, this Court has held that the involvement in

any  previous  criminal  case  by  the  accused,  was

considered  to  be  a  factor,  to  be  taken  into

consideration,  for  the  purpose  of  awarding  death

sentence. Paragraph 13 of the said judgment reads as

under:

“13.   The  next  question  that  arises  for consideration is whether this is a “rarest of rare case”; we do not think that this is a  “rarest  of  rare  case”  in  which  death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other  criminal  case  previously  and  the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace  to  society  in  future  and  no materials are placed before us to draw such a  conclusion.  We  do  not  think  that  the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty  imposed  on  him  for  the  offence under Section 302 IPC is commuted to life imprisonment.”   

24. Further,  this  case  on  hand,  rests  solely  on  the

142005(3) SCC 127

69

circumstantial evidence.  

25. In  the  case  of  Bishnu  Prasad  Sinha  v.  State  of

Assam15,  this Court has held that ordinarily, death

penalty would not be awarded, if the guilt of the

accused is proved by circumstantial evidence, coupled

with some other factors that are advantageous to the

convict. Paragraph 55 of the said judgment reads as

under:

“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.”

26. Further, in the case of Aloke Nath Dutta v. State of

West Bengal16, the principle that death penalty should

ordinarily not to be awarded, in a case arising out of

circumstantial evidence, was broadly accepted with the

15 (2007) 11 SCC 467 16(2007)12 SCC 230

70

rider that there should be some “special reason” for

awarding  death  penalty.  Paragraph  174  of  the  said

judgment reads as under:

“174.  There are some precedents of this Court e.g. Sahdeo v. State of U.P.[(2004) 10  SCC  682]  and  Sk.  Ishaque  v.  State  of Bihar[(1995)  3  SCC  392]  which  are authorities for the proposition that if the offence  is  proved  by  circumstantial evidence  ordinarily  death  penalty  should not be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath.  Furthermore we do not find any special reason for awarding death penalty which is imperative.”

27. In  the  case  of  Swamy  Shraddananda  v.  State  of

Karnataka17, this Court has held that the convictions

based on seemingly conclusive circumstantial evidence,

should not be presumed to be fool-proof. Paragraph 87

of the said judgment reads as under:

“87.  It has been a fundamental point in numerous  studies  in  the  field  of  death penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence,  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. Convictions  based  on  seemingly  conclusive circumstantial  evidence  should  not  be presumed  as  foolproof  incidences  and  the fact  that  the  same  are  based  on circumstantial evidence must be a definite factor  at  the  sentencing  stage deliberations,  considering  that  capital

17(2007) 12 SCC 288

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punishment  is  unique  in  its  total irrevocability.  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.”

28. From the above judgments referred, it is clear that

in  a  case  of  conviction  based  on  circumstantial

evidence, ordinarily the extreme punishment of death

penalty should not be imposed. In a given case, guilt

of the accused is proved beyond reasonable doubt, by

establishing  chain  of  circumstances,  resulting  in

conviction,  such  cases,  by  considering   balancing

aspects of aggravating and mitigating circumstances,

in appropriate cases, death penalty can be imposed.

But,  at  the  same  time  ordinarily,  if  no  special

reasons  exist,  in  a  case  of  conviction  based  on

circumstantial evidence, death penalty should not be

imposed. In this case on hand, the conviction of the

appellant is mainly based on circumstantial evidence.

On this ground also, I am of the view that the death

sentence, imposed on him, is to be modified.

29. From the materials placed on record, it is clear

that accused is a permanent resident of Indira Nagar,

Jalna. The father of the deceased, PW-9, himself has

stated that he is a fruit vendor in  Nutan Vasahat

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area,  Jalna,  and  accused  also  resides  in  the  same

lane, nearby his residence. It is also clear from the

evidence of PW-9, to the East and West side of the

house of the appellant, a person having buffaloes used

to reside at the relevant time. From such evidence on-

record,  it  is  easy  to  assess  the  socio-economic

condition of the appellant and it can certainly be

said that he is a person below poverty line.  

30. In a judgment of this Court, in the case of  Sunil

Damodar  Gaikwad  v.  State  of  Maharashtra18,  while

holding that court must not only look at the crime but

also  offender  and  to  give  due  consideration  to

circumstances of offender, has further held that in

imposing  penalty,  socio-economic  condition  can  be

considered  as  one  of  the  mitigating  factors,  in

addition  to  those  indicated  in   Bachan  Singh2  and

Machhi Singh3. Para 20 of the said judgment reads as

under:

“20.  When  there  are  binding  decisions, judicial  comity  expects  and  requires  the same to be followed. Judicial comity is an integral  part  of  judicial  discipline  and judicial  discipline  the  cornerstone  of judicial integrity. No doubt, in case there are newer dimensions not in conflict with the ratio of the larger Bench decisions or where there is anything to be added to and explained,  it  is  always  permissible  to

18(2014) 1 SCC 129

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introduce  the  same.  Poverty,  socio- economic,  psychic  compulsions,  undeserved adversities in life are thus some of the mitigating  factors  to  be  considered,  in addition to those indicated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh  [Machhi  Singh  v.  State  of  Punjab, (1983)  3  SCC  470  :  1983  SCC  (Cri)  681] cases. Thus, we are bound to analyse the facts in the light of the aggravating and mitigating factors indicated in the binding decisions  which  have  influenced  the commission of the crime, the criminal, and his  circumstances,  while  considering  the sentence.

31. In view of the aforesaid judgments of this Court

and evidence on record in this case, which establishes

the socio-economic condition of the appellant, as a

person below poverty line, can also be considered as

one of the mitigating factors, while balancing the

aggravating and mitigating factors.  

32. I am conscious of recent amendments carried out to

the Protection of Children from Sexual Offences Act,

2012 (for short ‘POCSO Act’), by way of Protection of

Children from Sexual Offences Amendment Act, 2019. By

virtue  of  the  said  amendments,  taking  note  of

increasing  trend  of  crimes  against  the  children,

minimum sentence is increased for various offences and

for offence under Section 6 of the Act i.e aggravated

penetrative  sexual  assault,  minimum  imprisonment,

which  shall  not  be  less  than  20  years,  which  may

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extend to natural life or penalty of death.  Prior to

the amendments made by recent amending Act of 2019,

for  offence  under  POCSO,  death  penalty  was  not

provided.  By  virtue  of  the  amendments  made  in

appropriate  cases,  for  offences  falling  under

provisions of the POCSO Act alone, a penalty of death

sentence can be imposed. In the case on hand, the

offence was committed prior to coming into force, of

the Act.

33. Even then, we cannot forget the legislative intent

which resulted in amendments to POCSO, while dealing

with the offences against the children. At the same

time, even for imposing the death sentence, for cases

arising out of the provisions under POCSO Act, 2012,

it  is  the  duty  of  the  courts  to  balance  the

aggravating and mitigating circumstances. To balance

such aspects, the guidelines in Bachan Singh v. State

of  Punjab2 and  further  reiterated  in  the  case  of

Machhi Singh and Ors. v. State of Punjab3  and in the

case  of  Sushil  Murmu  v.  State  of  Jharkhand19,  will

continue to apply. Further, repeatedly, it is said by

this  Court,  in  the  various  judgments  that  the

aggravating  and  mitigating  factors  are  to  be

19(2004) 2 SCC 338

75

considered with reference to the facts of each case

and  there  cannot  be  any  hard  and  fast  rule  for

balancing such aspects.  

34. I am clear in my mind that in this case on hand, the

mitigating  circumstances  of  the  appellant,  dominate

over  the  aggravating  circumstances,  to  modify  the

death sentence to that of life imprisonment. Even as

per the case of prosecution, the appellant was under

influence  of  liquor  at  the  time  of  committing  the

offence, and there is no evidence on record from the

side  of  prosecution,  to  show  that  there  is  no

possibility of reformation and rehabilitation of the

appellant. Further, age of the appellant was 25 years

at the relevant time and conviction is solely based on

circumstantial evidence. Taking all such aspects into

consideration,  the  death  penalty  imposed  on  the

appellant  is  to  be  modified  to  that  of  life

imprisonment, for the offence under Section 302 IPC.

35. Long line of cases decided by this Court are

cited by learned counsel for the appellant, in similar

set  of  facts  and  circumstances,  this  Court  has

modified the death sentence to that of imprisonment

for life, without any remission. Few recent decisions

of this Court are:

76

36. In a three Judge Bench Judgments of this Court, in

the case of Nand Kishore v. State of Madhya Pradesh20

dated  18.01.2019  and  in  the  case  of  Raju  Jagdish

Paswan v State of Maharashtra21 dated 17.01.2019, for

which I am party, in similar circumstances, this Court

has  modified  the  death  penalty  to  that  of  life

imprisonment, without any remission.  

37. Further, in a recent three Judge Bench Judgment of

this Court, in the case of Vijay Raikwar v. State of

Madhya Pradesh22, where there was an offence involving

rape and murder of a girl aged about 7½ years, while

confirming  the  conviction  of  the  offences  under

Section 376(2)(f) and Section 201 IPC and also under

Sections 5(i), 5(m) and 5(r) read with Section 6 of

the POCSO Act, this Court commuted the death sentence

to life imprisonment.  

38. In  the  aforesaid  judgments,  in  a  similar  set  of

facts, this Court has modified the sentence to life

imprisonment. In this case also there is no previous

crime record for the appellant. The above referred

judgment, supports the case of the appellant.  

39. For the aforesaid reasons, these appeals are allowed

20   Criminal Appeal No. 94 of 2019 21Criminal Appeal No. 88-89/2019 22(2019) 4 SCC 210

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in part. While confirming the conviction recorded by

the  Trial  Court,  death  sentence  imposed  on  the

appellant is modified to that of life imprisonment i.e

to suffer for life till his natural death, without any

remission/commutation.

 ...................J      [R.Subhash Reddy]

New Delhi;

October 03,2019

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