SUPREME COURT OF INDIA
Shivu & Anr.
Vs.
R.G.High Court of Karnataka & Anr.
Crl.A.No.202 of 2007
(Arijit Pasayat and L.S.Panta,JJ.,)
13.02.2007
JUDGMENT
Dr.Arijit Pasayat,J.
SLP.(Crl.)No.1762 of 2006
1. Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of
the Karnataka High Court accepting the reference made under Section 366 of the Code
Of Criminal Procedure, 1973 (in short the 'Cr.P.C.') and confirming death
sentence awarded to the appellants in respect of offences punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in
short 'IPC') and sentence of 10 years and fine of Rs.25, 000/- with default
stipulation for the offence punishable under Section 376 read with Section 34 Indian
Penal Code, 1860 awarded by the learned District and Sessions Judge,
Chamarajanagara.
3. Background facts which led to the trial of the accused persons are
essentially as follows:
“Jayamma, (PW.1) is the resident of Badrenahalli village in Kollegal Taluk. She
resided with her husband, and children Raju (PW.2), Nagarajamma (PW.10) and
Shivamma (hereinafter referred to as the 'deceased'). Both the accused are
residents of the same village. The accused-aged about 20 and 22 years
respectively were sexually obsessed youngsters. Few months prior to the
incident, relating to the present appeal they attempted to commit rape on
Lakkamma [daughter of Puttegowda (PW.7)], but were unsuccessful. For that act,
they were admonished. Later, they attempted to commit rape on PW.10 (daughter
of PW.1). PW.10 was also successful in escaping from their clutches. Though in
both the incidents, the aggrieved persons wanted to lodge police complaints,
against the accused, at the instance of village elders and family members of
these accused, instead of lodging criminal cases, only Panchayath of village
elders was called on each occasion and the accused were directed to mend their
ways. But this warning had no effect on them. Emboldened by escape from punishment
in those two incidents, they committed rape on the deceased a young girl of
hardly 18 years and to avoid detection, committed heinous and brutal act of her
murder. On the morning of 15.10.2001, deceased Shivamma went to the family land
situated near her house to dump manure. As she did not return, PW.1 went in
search of her after some time. When Shivamma was not seen in the land, PW.1
began to call her by name. Suspecting some untoward incident, when PW.1 went
near the spot, she saw the body of the deceased lying on the ground with
clothes disarrayed. Noticing that Shivamma was dead, PW.1 raised hue and cry
and went towards the village calling people for help. Attracted by her cries,
her son PW.2 and other villagers including Chikkiregowda (PW.3) came to the
spot and on learning about the incident, especially the fact that the accused
had been seen earlier at the spot where the dead body was found and had on
detection run away, they went in search of the accused. In the meantime,
Narayana Gowda (PW.5) the brother of PW.1 (maternal uncle of the deceased) who
also resides in the same village came to the house of PW.1 and on suspecting
the role of the accused in the rape and murder of Shivamma, wrote down the
statement of PW.1 and after taking her L.T.I., took the same to the
jurisdictional police at Rampur police station. M.K. AIi, the S.H.O. of Rampur
police station (PW.20) on receipt of the information of the crime, after
accepting the written complaint as per Ex.P.1, registered a case in Crime No.86/01
for the offences punishable u/s 376, 302 both read with Section 34 of the Indian
Penal Code, 1860 against these two accused and took up investigation.
4. After registering the case, preparing the F.I.R., sending the same, the
superior officers and the Court, the Investigating officer along with staff,
went to the place of the incident and held the necessary mahazars like spot
mahazar, seizure of certain articles found near the scene of offence. After
inquest proceedings, the body of the deceased was taken for autopsy. In the
meantime, on learning about the culpability of the accused in the crime,
several villagers went in search of the accused. Accused No.1 was found at the
bus stand while attempting to board a bus. He was brought and was interrogated.
His disclosure confirmed the involvement of accused No.2 as the co-participant
in the crime. People went in search of the second accused who was found hiding
in the house. Both of them were brought and kept in confinement in the house of
one Shivamma near the spot. They admitted to their guilt. On arrival of the
investigating officer, after the preliminary investigation as already noted,
the accused were taken into custody and they were sent for medical examination.
The post-mortem examination on the dead body of Shivamma was carried out by Dr.
Pushpalatha, PW.11 along with Dr.Basavaraju PW.12. It confirmed rape on the
deceased and that she had been killed by strangulation. The accused were
examined by the doctor PW.12 who noted nail scratch marks on their bodies. Syed
Ameer Pasha, (PW.13) a photographer was summoned and he took photographs of the
scene of offence as well as the dead body. Similarly Siddappa (PW.15), Junior
Engineer prepared the sketch of the scene of offence as per Ex.P.15. After
recording the statements of material witnesses including the relatives and the
other villagers who could throw light on the incident and after receipt of all
material reports, charge sheet was filed against these two accused for offences
punishable under Sections 376 read with 34 and 302 read with 34 of the Indian
Penal Code, 1860.
5. Twenty witnesses were examined to further the prosecution version. In their
examination under Section 313 Code Of Criminal Procedure, 1973 the
accused persons except denying their involvement did not offer explanation of
particular defence. The trial Court after considering the evidence on record
recorded conviction and awarded sentence as aforenoted. Since the death
sentence had been awarded by the trial Court reference was made to the High Court
in terms of Section 366 Code Of Criminal Procedure, 1973 for
confirmation of the death sentence. The accused-appellants also preferred
appeal in terms of section 374 (2) Code Of Criminal Procedure, 1973 The
circumstances on which the trial Court placed reliance for recording conviction
are as follows:
“a. Accused and deceased were last seen together near scene of offence.
b. The movements of the accused.
c. The rape and murder of the victim.
d. The immediate apprehension of the accused by the villagers and their extra
judicial confession.
e. Medical evidence in respect of accused indicating resistance put forth by
the victim and lastly;
f. The conduct of the accused prior to and after the crime.”
6. Considering the heinous nature of the crime, the trial court held it to be falling in the rarest of the rare category and awarded death sentence. The High Court as noted above confirmed the conviction and the sentence imposed.
7. In support of the appeal learned counsel for the appellants submitted that
the case is based on circumstantial evidence and the circumstances highlighted
do not present a complete chain to warrant any inference about the guilt of the
accused. Alternatively, it is submitted that the death sentence is not
warranted.
8. Learned counsel for the appellant-State on the other hand submitted that the
circumstances highlighted clearly establish the guilt of the accused and no
exceptions can be taken to the reasons indicated by the Trial Court in the
well- reasoned judgment. The evidence has also been analysed in great detail by
the High Court and, therefore, no question of any interference is called for
with the conviction recorded. So far as the sentence is concerned it is pointed
out that the accused persons are hardened criminals. They had made earlier
attempts of rape of two different girls i.e. daughter of PW.7 and PW.1. PWs. 11
and 12 are the doctors who conducted the autopsy and it is PW.12 who has also
medically examined the accused and given the wound certificates. PW.13 is the
photographer who took the photograph of scene of offence and the dead body.
PW.15 is the Junior Engineer who has prepared the sketch of the scene of
offence as per Ex.P.15 and PW.14 is the Village Accountant who has furnished
the R.T.C. of the lands in question. PWs. 18 and 19 have been examined by the
prosecution to show the earlier attempts of the accused to molest other girls
(Lakkamma and Nagarajamma) and their participation in the panchayath held by
the village elders in that regard. However, it is to be noted that as they did
not support the prosecution, they have been treated as hostile witnesses and in
spite of searching cross-examination by the prosecution they have stuck to
their contrary version. The remaining witnesses are mahazar witnesses and the
members of the investigation team.
9. To show the presence of the accused at the time and place almost near the
victim, the prosecution has relied upon the evidence of Puttegowda, PW.6,
Jayamma (PW.1) and two independent witnesses, Kalamma (PW8) and Rudramma (PW.9).
Puttegowda (PW.6) states that on the date of the incident while he was taking
tea in the morning, he saw the deceased going towards her family land carrying
basket of manure. He also saw that these two accused were following her from a
little distance. He states that after some time he also saw Jayamma (PW.1) the
mother of the deceased going towards the land and coming back raising hue and
cry over the murder of her daughter Shivamma by the accused and her seeing them
running away from the spot. The evidence of this witness, so far as this aspect
is concerned, except the futile suggestion that this witness is speaking
falsehood as he belongs to the group of Narayana Gowda and opposed to the
accused has remained unshaken.
10. It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan1,
Eradu v. State of Hyderabad 2 ,
Earabhadrappa v. State of Karnataka3,
State of U.P. v. Sukhbasi4
Balwinder Singh v. State of Punjab5 and
Ashok Kumar Chatterjee v. State of M.P.6 .
The circumstances from which an inference as to the guilt of the accused is
drawn have to be proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred from those
circumstances. In Bhagat Ram v. State of Punjab7
it was laid down that where the case depends upon the conclusion drawn from
circumstances, the cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring home the offences beyond any
reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga
Reddy v. State of A.P8. wherein
it has been observed thus:
"21. In a case based on circumstantial evidence, the settled law is that
the circumstances from which the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete and there should be no gap left in the chain
of evidence. Further, the proved circumstances must be consistent only with the
hypothesis of the guilt of the accused and totally inconsistent with his
innocence."
12. In Padala Veera Reddy v. State of A.P9. it
was laid down that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests:
“1) The circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused;
(3) The circumstances, taken cumulatively, should form a chain so complete that
there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else; and
(4) The circumstantial evidence in order to sustain conviction must be complete
and incapable of explanation of any other hypothesis than that of guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence."
13. In State of U.P. v. Ashok Kumar Srivastava10 it
was pointed out that great care must be taken in evaluating circumstantial
evidence and if the evidence relied on is reasonably capable of two inferences,
the one in favour of the accused must be accepted. It was also pointed out that
the circumstances relied upon must be found to have been fully established and
the cumulative effect of all the facts so established must be consistent only
with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence'
(Chapter VI) lays down the following rules specially to be observed in the case
of circumstantial evidence: (1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond reasonable doubt connected with the
factum probandum; (2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability; (3) in all cases,
whether of direct or circumstantial evidence the best evidence must be adduced
which the nature of the case admits; (4) in order to justify the inference of
guilt, the inculpatory facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other reasonable hypothesis than
that of his guilt; and (5) if there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted. There is no doubt that
conviction can be based solely on circumstantial evidence but it should be
tested by the touchstone of law relating to circumstantial evidence laid down
by this Court as far back as in 1952.
15. In Hanumant Govind Nargundkar v. State of M.P11.it
was observed thus:
"It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of guilt is
to be drawn should be in the first instance be fully established, and all the
facts so established should be consistent only with the hypothesis of the guilt
of the accused. Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion consistent with
the innocence of the accused and it must be such as to show that within all
human probability the act must have been done by the accused."
A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra 12 . Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
“(1) The circumstances from which the conclusion of guilt is to be drawn should
be fully established. The circumstances concerned must or should and not may be
established;
(2) The facts so established should be consistent only with the hypothesis of
the guilt of the accused, that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved;
and
(5) There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done
by the accused.”
7. When the evidence on record is analysed in the background of principles
highlighted above, the inevitable conclusion is that the prosecution has established
its accusations.
8. The residual question relates to sentence. In Bachan Singh v. State of
Punjab13 (relied on) and Machhi Singh and Ors. v. State of Punjab14 (relied
on) the guidelines which are to be kept in view when considering the question whether
the case belongs to the rarest of the rare category for awarding death sentence
were indicated.
9. In Machhi Singh's case (supra) it was observed:
"The following questions may be asked and answered as a test to determine
the "rarest of the rare" case in which death sentence can be
inflicted:-
(a) Is there something uncommon about the crime which renders sentence of
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?
The following guidelines which emerge from Bachan Singh case (supra) will have
to be applied to the facts of each individual case where the question of
imposition of death sentence arises: (SCC p. 489, para 38):-
(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. 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.
In rarest of rare cases when collective conscience of the community 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, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
(1) 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.
(2) When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward or a cold-blooded
murder for gains of a person vis-'-vis whom the murderer is in a dominating
position or in a position of trust, or murder is committed in the course for
betrayal of the motherland.
(3) 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, or in cases of 'bride burning' or '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.
(4) 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, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old
or infirm person or a person vis-'-vis whom the murderer is in a dominating
position or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of
the aforesaid propositions and taking into account the answers to the questions
posed by way of the test for the rarest of rare cases, the circumstances of the
case are such that death sentence is warranted, the court would proceed to do
so."
10. A convict hovers between life and death when the question of gravity of the
offence and award of adequate sentence comes up for consideration. Mankind has
shifted from the state of nature towards a civilized society and it is no
longer the physical opinion of the majority that takes away the liberty of a
citizen by convicting him and making him suffer a sentence of imprisonment.
Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the court room after
adequate hearing is afforded to the parties, accusations are brought against
the accused, the prosecuted is given an opportunity of meeting the accusations
by establishing his innocence. It is the outcome of cool deliberations and the
screening of the material by the informed man i.e. the Judge that leads to
determination of the lis.
11. The principle of proportion between crime and punishment is a principle of
just desert that serves as the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is hardly less familiar or
less important than the principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be disproportionately great, which
is a corollary of just desert, is dictated by the same principle that does not
allow punishment of the innocent, for any punishment in excess of what is
deserved for the criminal conduct is punishment without guilt.
12. The criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in arriving
at a sentence in each case, presumably to permit sentences that reflect more
subtle considerations of culpability that are raised by the special facts of
each case. Judges in essence affirm that punishment ought always to fit the
crime; yet in practice sentences are determined largely by other
considerations. Sometimes it is the correctional needs of the perpetrator that
are offered to justify a sentence, sometimes the desirability of keeping him
out of circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just desert as the basis
of punishment and create cases of apparent injustice that are serious and
widespread.
13. Proportion between crime and punishment is a goal respected in principle,
and in spite of errant notions, it remains a strong influence in the
determination of sentences. Anything less than a penalty of greatest severity
for any serious crime is thought to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from those considerations that
make punishment unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very undesirable practical
consequences.
14. Considering the view expressed by this Court in Bachan Singh's case (supra)
and Machhi Singh's case (supra) we have no hesitation in holding that the case
at hand falls in rarest of rare category and death sentence awarded by the
trial Court and confirmed by the High Court was appropriate.
15. The appeal is dismissed.
1AIR 1977 SC 1063
2AIR 1956 SC 0316
3AIR 1983 SC 0446
4AIR 1985 SC 1224
5AIR 1987 SC 0350
6AIR 1989 SC 1890
7AIR 1954 SC 0621
8 (1996) 10 SCC 0193
9AIR 1990 SC 0079
10(1992) Crl. LJ 1104
11AIR 1952 SC 343
12AIR 1984 SC 1622
13(1980) 2 SCC 0684
14(1983) 3 SCC 0470