Holding

The conviction and death sentence are upheld because the circumstantial evidence meets the stringent tests, intoxication does not excuse the offence, and the murders constitute a rarest of rare case warranting death.

Summary

The appellant, Bablu (Mubarik Hussain), was convicted of murdering his wife, three minor daughters and a minor son by strangulation. The trial court relied on an extrajudicial confession, the appellant's presence at the crime scene and the recovery of the wife's earring to uphold a conviction under Section 302 IPC and imposed death. On appeal, the Supreme Court examined whether the circumstantial evidence satisfied the established tests, whether intoxication under Section 85 IPC could excuse the acts, and whether the death penalty was warranted under the "rarest of rare" doctrine and the requirement of "special reasons" under Sections 354(3) and 361 CrPC. The Court held that the chain of circumstantial evidence was complete, the intoxication defence was inapplicable, and the cruelty of the murders placed the case in the rarest of rare category, justifying death. Consequently, the appeal was dismissed and the death sentence affirmed.

Issues considered

The adequacy of circumstantial evidence to sustain a conviction under Section 302 IPC.
Whether intoxication under Section 85 IPC can be a defence or excuse for the alleged murders.
Whether the death sentence is justified, i.e., does the case fall within the "rarest of rare" category and satisfy the requirement of "special reasons" under Sections 354(3) and 361 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 354(3), s. 360, s. 361, s. 366
Indian Penal Code, 1860s. 302, s. 85

Subjects

murderdeath penaltycircumstantial evidencerarest of rare doctrineintoxication defenceSection 302 IPCSection 85 IPCsentencingspecial reasonsproportionality

Judgment

BABLU @ MUBARIK HUSSAIN A
v.
STATE OF RAJASTHAN

DECEMBER 12, 2006

[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.] B

Indian Penal code, 1860;

Section 302-death sentence-award of-rarest ofrare cases-explained.
c
Section 85-intoxication-defence of-when can be availed of-explained,
however, can never be an excuse for the brutal, diabolic acts of the accused.

Appellant was alleged to have murdered his wife, three daughters (all
minors) and a minor son by strangulating them one by one. He was tried of
the charge of offence punishable under Section 302 I.P.C. The trial court on D
consideration of the evidence led by the prosecution found the appellant guilty
of offence under Section 302 I.P.C had found the charge for commission of
offence under Section 302 IPC to have been proved and imposed the death
sentence. The trial Court had imposed a death sentence and, therefore, ma<4!
a reference for confirmation of death sentence by the High Court in terms of E
Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code').
Appellant also filed an appeal and both the case under reference and the appeal
were taken up together and disposed of by a common judgment rendered by
the High Court confirming the death sentence awarded to the appellant for
commission of offence punishable under Section 302 of the Indian Penal Code,
1860 (in short the 'IPC'). Hence, the present appeal. F
It was contended by the appellant that the extra judicial confession relied
upon by the prosecution is not correct. It was submitted that the alleged
confession publicly standing on. a platform is highly improbable. Additionally,
it was stated that the accused was in a state of drunkenness and did not know
the consequences of what he did not and, therefore, death sentence should not G
have been awarded.

On behalf of the state, on the other hand, it was contended that the cruel
and diabolic acts of the accused show that he does not deserve any leniency so
835 H
836 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A far as the sentence is concerned. Drunkenness cannot be an excuse for such
cruel and inhuman acts.

Dismissing the appeal, the Court

HELD I.I. Convicted can be based solely on circumstantial evidence but
B it should be tested by the touch-stone of law relating of circumstantial evidence
laid down by the this Court, viz. (i) 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; (ii) the
facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to <iay, they should not be explainable on any other
C hypothesis except that the accused is guilty; (iii) the circumstances should
be of a conclusive nature and tendency; (iv) they should exclude every possible
hypothesis expect the one to be proved; and (v) there must be a chain of evidence
so compete 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
D the act must have been done by the accused. [842-G; 843-A, BJ

Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063; Eradu and
Ors. v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of
Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and Ors., AIR (1985)
SC 1224; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350 and Ashok
E Kumar Chatterjee v. State ofM.P., AIR (1989) SC 1890, referred to.

Bhagat Ram v. State of Punjab, AIR (1954) SC 621; C. Chenga Reddy
and Ors. v. State ofA.P., (1996) 10 SCC 193; Padala Veera Reddy v. State of
A.P. and Ors., AIR (1_990) SC 79; State of UP. v. Ashok Kumar Srivastava,
AIR (1992) SC 840; Wills' Circumstantial Evidence" (Chapter VI) by Sir
F Alfred Wills; Hunumant Govind Nargundkar and Anr. v. State of Madhya
Pradesh, AIR (1952) SC 343 and Sharad Birdhichand Sarda v. State of
Maharashtra, AIR (1984) SC 1622, relied upon.

2.1. Section 361 which is a new provision in the Code makes it
G 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 it is possible to do so and to
state "special reasons" if it does not do so they "special reasons"
contemplated by Section 361 must be such as to compel the court to hold that
it is impossible to reform and rehabilitate the offender after examining the
H matter with due regard to the age, character and antecedents of the offender I
.....
BABLU @ MUBARIK HUSSAIN v. ST ATE OF RAJ AS THAN 83 7
and the circumstances in which the offence was committed. (844-8, C, Dl A
2.2. 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, Criminal justice deals with complex human problems and diverse B
human beings. A Judge has to balance the personality of the offender with
the circumstances, situations and the reactions and choose the appropriate
sentence to be imposed. (844-E, F)

3.1. After the amendment of Section 367 (5) of the old Code by Act 26 C
of 1955, the normal penalty of imprisonment for left can be awarded in the
absence of extenuating circumstances which reduce the gravity of the offence.
The matter is left, after the amendment, to the discretion of the court. The
court must, however, take into account all the circumstances, and state its
reasons for whichever of the two sentences it imposes in its discretion. The
former rule that the normal punishment for murder is death is no longer D
operative and it is now within the discretion of the court to pass either of the
two sentences prescribed in this section but whichever of the two sentences
he passes, the Judge must give his reasons for imposing a particular sentence.
The amendment does not affect the law regulating punishment under IPC.
This amendment relates to procedure and now courts are no longer required
to elaborate the reasons for not awarding the death penalty; but they cannot E
depart from sound judicial considerations preferring the lesser punishment.

3.2. The court is required to state the reasons for the sentence awarded
and in the case of death sentence "special reasons" are required to be stated,
that is to say, only special facts and circumstances will warrant the passing F
of the death sentence. (845-D, E]

Ediga Anamma v. State ofA.P., (1974) 4 SCC 443 and Bachan Singh v.
State of Punjab, (198012 SCC 684, relied on

3.3. A balance sheet of aggravating and mitigating circumstances has G
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 order to
apply these guidelines, inter alia, the following questions may be asked and
answered, (a) is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death sentence?; H
•
838 SUPREME COURT REPORTS. [2006] SUPP. 10 S.C.R.

A and (b) are the circumstances of the crime such that there is no alternative
b,11t to impose death sentence even after according maximum weight age to
the mitigating circumstances which speak in favour of the offender.
(846-F,G]

4.1. Proportion between crime and punishment is a goal respected in
B principal, and in spite of errant notions, it remains a strong influence in the
determination of sentences. The practice of punishing all serious crimes with
equal severity is now unknown in civilized societies, but such a radical
departure form the principle of proportionality has disappeared from the law
only in recent times. Even now a single grave infraction that is thought to
C call for uniformly drastic measures. (849-F, G]

5.1. The defence of drunkenness can be availed of only when intoxication
produces such a condition as the accused loses the requisite intention for the
offence. The onus of proof about reason of intoxication due to which the accused
had become incapable of having particular knowledge in forming the particular
D intention is on the accused. (850-C, DJ

5.2. The plea of drunkenness can never be an excuse for the brutal,
diabolic acts of the accused. The brutal acts done by the accused-appellant
are diabolic in conception and cruel in execution. The acts were not only brutal
but also inhuman with no remorse for the same. Merely because he claims to
E be a drunk at the relevant point of time, that does not in any way get diluted
not because of what is provided in Section 85 IPC but because one after
another five lives were taken and that too of four young children. This case
squarely falls under the rarest of rare category to warrant death sentence.
(850-G; 851-A, BJ

F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1302 of
2006.

From the Final Judgment and Order dated 27.7.2006 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Crl. Murder reference No.2 of
G 2006 and D.B. Crl. Jail Appeal No. 447/2006.

V. Ramasubramanian for the Appellant.·,

Aruneshwar Gupta, Naveen Kumar Singh, Mukul Sood, Shashwat Gupta
and Shikha Tandon for the Respondent.

H The Judgment of the Court was delivered by
BABLU @MUBARIK HUSSAIN v. STATE OF RAJASTHAN [PASAYAT, J.] 839

DR. ARIJIT PASAYAT, J. Leave granted. A
Challenge in this appeal is to the judgment rendered by a Division
Bench of the Rajasthan High Court at Jodhpur confirming the death sentence
awarded to the appellant for commission of offence punishable under Section
302 of the Indian Penal Code, 1860 (in short the 'IPC'). The trial Court had
imposed a death sentence and, therefore, made a reference for confirmation B
of death sentence by the High Court in terms of Section 366 of the Code of
Criminal Procedure, 1973 (in short the 'Code').

Appellant also filed an appeal and both the case under reference and
the appeal were taken up together and disposed of by a common judgment. C
According to the prosecution accused killed his wife- Anisha, three
daughters namely, Gulfsha, Nisha and Anta @ Munni aged 9 years, 6 years
and 4 years respectively and son Babu aged 2~ years. The Additional
Sessions Judge (Fast Track), Nagaur had found the charge for commission
of offence under Section 302 IPC to have been proved and imposed the death D
sentence.

Prosecution version in a nutshell is as follows:

On 10.12.2005 at about 6 A.M. Alladeen (PW-I) submitted a written
report at Police Station, Nagaur stating inter alia that in the evening of E
9.12.2005 the appellant Bablu gave beating to his wife and children. But they
were rescued on his intervention. He described Bablu as a person of notorious
character. It was further averred that in the morning at about 5 a.m. his brother
appellant Bablu came out of the house shouting and making declaration that
he has killed all the five bastards by strangulation one by one. He killed his
wife Anisha, daughters Gulfsha, Nisha, Anta @ Munni and son Babu. The F
dead bodies were found placed on the mattresses tying the thumbs of each
leg of the dead bodies by thread. On this information police registered a case
for offence punishable under Section 302 l.P.C. and proceeded with
investigation. All the dead bodies were sent for postmortem. A Medical Board
consisting of three doctors conducted the postmortem of all the five dead G
bodies. The appellant was arrested. After usual investigation police laid
charge-sheet against the appellant for offence punishable under Section 302
l.P.C. On being committed the appellant was tried of the charge of offence
punishable under Section 302 l.P.C. by the court of Additional Sessions Judge
(Fast Track), Nagaur. The trial court on consideration of the evidence led by
the prosecution found the appellant guilty of offence under Section 302 I.P.C. H
A
840 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

The trial Court relied upon the following circumstances to find the
-
accused guilty.

(1) Extrajudicial confession made by the appellant before Murad Khan
(PW-I), Bablu Kalva (PW-2), Mohd Sharif(PW-3) and Alladeen (PW-4).

B (2) The presence of the appellant in the house wherein the alleged
incident took place.

(3) Recovery of ear ring of the wife from the possession of the appellant.

At the time of hearing the reference and the appeal the primary stand
C taken by the accused appellant was that the extra judicial confession relied
upon by the prosecution is not correct. It was submitted that the alleged
confession publicly standing on a platform is highly improbable. The High
Court found that the evidence of Murad Khan (PW-I) and Bablu (PW-2) was
cogent and credible. PW~I was a neighbour and PW-2 is the brother of the
accused-appellant. There is no reason as to why they would falsely implicate
D the accused-appellant by making an untruthful statement. Added to that,
evidence of PW-I about the behaviour of the appellant was relevant. The
third circumstance was the recovery of ornament from the possession of the
appellant. The circumstances highlighted by the prosecution according to the
High Court presented a complete chain of circumstances. Though it was
E submitted by the accused-appellant that even if the prosecution case was
accepted in its totality, there was no special reason to impose the death
sentence. The High Court considered this plea in the background of what has
been stated by this Court in Machhi Singh and Ors. v. State of Punjab, [ 19.83]
3 SCC 470 and Bachan Singh v. State ofPunjab, [1980] 2 SCC 684. Reference
was also made to the decision in State of Rajasthan v. Kheraj Ram, [2003]
F 8 sec 224. The High Court was of the view that the appellant had acted in
a most cruel and diabolic manner. He deliberately planned and meticulously
executed the same. There was not even any remorse for such gruesome acts.
On the contrary, he was satisfied with what he had done. He made a declaration
of his act of abusing his wife and children. Accordingly, the death sentence
G was confirmed.

The stand taken by the accused-appellant before the High Court was
re-iterated in this appeal. Additionally, it was stated that the accused was in
a state of drunkenne.ss and did not know the consequences of what he did
and, therefore, death sentence should not have been awarded.
H
... BABLU @MUBARIK HUSSAIN v. STATE OF RAJASTHAN [PASAYAT, J.] 841

On the contrary, learned counsel for the State submitted that the cruel A
and diabolic acts of the accused show that he does not deserve any leniency
so far as the sentence is concerned. Drunkenness cannot be an excuse for
such cruel and inhuman acts.

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 B
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 Rajasthan, AIR ( 1977) SC 1063; Eradu
and Ors. v. State of Hyderabad, AIR ( 1956) SC 316; Earabhadrappa v. State
of Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and Ors., AIR C
(1985) SC 1224; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350;
Ashok Kumar Chatterjee v. State of MP., AIR (1989) SC 1890. 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 Punjab, AIR (1954) SC 621, it was D
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 the offences home beyond
any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chznga E
Reddy and Ors. v. State of A.P., [1996] 10 SCC 193, wherein it has been
ob.served thus:

"In a case based on circumstantial evidence, the. settled law is that
the circumstances from which the conclusion of guilt is drawn should F
. 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 .... ".
G
In Padala Veera Reddy v. State of A.P. and Ors., AIR (1990) SC 79, it
was laid down that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests:

( l) the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established; H
A
842 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

(2) those circumstances should be of a definite tendency unerringly
. pointing towards guilt of the accused;
-
(3) the circumstances, taken cumulatively should fonn 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
B 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 the guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should be inconsistent
C with his innocence.

In State of U.P. v. Ashok Kumar Srivastava, AIR (1992) SC 840, it was
pointed out that great care must be taken in evaluating circumstantial evidence
and ifthe 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
D ·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.

Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence"
(Chapter VI) lays down the following rules specially to be observed in the
E case of circumstantial evidence: (I) 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
F 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, (5) if there be any reasonable
doubt of the guilt of the accused, he is entitled as of right to be acquitted".

G There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touch-stone of law relating to
circumstantial evidence laid down by the this Court as far back· as in 1952.

In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh,
AIR (1952) SC 343, wherein it was observed thus:
H
BABLU @MUBARIK HUSSAIN v. STATE OF RAJASTHAN [PASA YAT, J. ]843

"It is well to remember that in cases where the evidence is of a 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 B
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." C
A reference may be made to a later decision in Sharad Birdhichand
Sarda v. State of Maharashtra, AIR (1984) SC 1622. Therein, while dealing
with circumstantial evidence, it has been held that onus was on the prosecution
to prove that the chain is complete and the infirmity of lacuna in prosecution
cannot be cured by false defence or plea. The conditions precedent in the D
words of this Court, before conviction could be based on circumstantial
evidence, must be fully established. They are:

(I) 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; E
(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;
F
(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 compete as not to leave any G
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.

The only other thing which needs consideration is whether death
sentence as awarded by trial Court is proper. H
844 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A Section 302 IPC prescribes death or life imprisonment as the penalty for
murder. While doing so, the Code instructs the court as to its application.
The changes which the Code has undergone in the last three decades clearly
indicate that Parliament is taking note of contemporary criminological thought
and movement. It is not difficult to discern that in the Code, there is a definite
swing towards life imprisonment. Death sentence is ordinarily ruled out and
B 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
C 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 it is 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 rehabilitate the offender
D 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 refonnation and rehabilitation
of offenders and not mere deterrence, are now among the foremost objects
of the administration of criminal justice in our country. SeC:tion 361 and
E 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 detennining the sentence to be
F awarded. Special reasons must have some relation to these factors, Criminal
justice deals with complex human problems and diverse human beings. A
Judge has to balance the personality of the offender with the circumstances,
situations and the reactions and choose the appropriate sentence to be
imposed.
G It should be borne in mind that before the amendment of Section 367(5)
of the old Code, by the Criminal Procedure Code (Amendment) Act, 1955 (26
of 1955) which came into force on 1.1.1956, on a conviction for an offence
punishable with death, if the court sentenced the accused to any punishment
other than death, the reason why sentence of death was not passed had to
H be stated in the judgment. After the amendment of Section 367(5) of the old
BABLU@MUBARIKHUSSAINv. STATEOFRAJASTHAN [PASAYAT, J. ]845

Code by Act 26 of 1955, it is not correct to hold that the normal penalty of A
imprisonment for life cannot be awarded in the absence of extenuating
circumstances which reduce the gravity of the offence. The matter is left,
after the amendment, to the discretion of the court. The court must, however,
take into account all the circumstances, and state its reasons for whichever
of the two sentences it imposes in its discretion. Therefore, the former rule B
that the normal punishment for murder is death is no longer operative and it
is now within the discretion of the court to pass either of the two sentences
prescribed in this section; but whichever of the two sentences he passes, the
Judge must give his reasons for imposing a particular sentence. The amendment
of Section 367(5) of the old Code does not affect the law regulating punishment
under IPC. This amendment relates to procedure and now courts are no C
longer required to elaborate the reasons for not awarding the death penalty;
but they cannot depart from sound judicial considerations preferring the
lesser punishment.

Section 354(3) of the Code marks a significant shift in the legislative
policy underlying the old Code as in force immediately before 1.4.1974, D
according to which both the alternative sentences of death or imprisonment
for life provided for murder were normal sentences. Now, under Section 354(3)
of the Code the normal punishment for murder is imprisonment for life and
death penalty is an exception. The court is required to state the reasons for
the sentence awarded and in the case of death sentence "special reasons" E
are required to be stated, that is to say, only special facts and circumstances
will warrant the passing of the death smtence. It is in the light of these
successive legislative changes in the Code that the judicial decisions prior to
the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be
understood.
F
This Court in Ediga Anamma v. State of A.P., [1974] 4 SCC 443 has
observed : (SCC pp. 453-54, para 26)

"26. Let us crystallize the positive indicators against death sentence
under Indian law currently. Where the murderer is too young or too
old, the clemency or penal justice helps him. Where the offender G
suffers from socio-econorriic, psychic or penal compulsions insufficient
to attract a legal exception or to downgrade the crime into a lesser
one, judicial commutation is permissible. Other general social pressures,
warranting judicial notice, with an extenuating impact may, in special
cases, induce the lesser penalty. Extraordinary features in the judicial H
846 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A process, such as that the death sentence has hung over the head of
the culprit excruciatingly long, may persuade the court to be
compassionate. Likewise, if others involved in the crime and similarly
situated have received the benefit of life imprisonment or ifthe offence
is only constructive, being under Section 302, read with Section 149,
or again the accused has acted suddenly under another's instigation,
B without premeditation, perhaps the court may humanely opt for life,
even like where a just cause or real suspicion· of wifely infidelity
pushed the criminal into the crime. On the other hand, the weapons
used and the manner of their use, the horrendous features of the crime
and hapless, helpless state of the victim, and the like, steel the heart
c of the law for a sterner sentence. We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society. A legal policy
on life or death cannot be left for ad hoc mood or individual predilection
and so we have sought to objectify to the extent possible, abandoning
retributive ruthlessness, amending the deterrent creed and accenting
D the trend against the extreme and irrevocable penalty of putting out
of life."

In Bachan Singh's case (supra) it has been observed that: (SCC p. 751,
para 209)
E "A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought
not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed."

A balance sheet of aggravating and mitigating circumstances has to be
F
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 order to
apply these guidelines, inter alia, the following questions may be asked and
answered, (a) is there something uncommon about the crime which renders
G sentence of imprisonment for life inadequate and calls for a death sentence?;
and (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?

H Another decision which illuminatingly deals with the question of death
sentence is Machhi Singh 's case (supra).
BABLU @MUBARIK HUSSAIN v. STATE OF RAJASTHAN [PASAYAT, J. )847

In Machhi Singh (supra) and Bachan Singh (supra) cases the guidelines A
which are to be kept in view when considering the question whether the case
belongs to the rarest of the rare category were indicated.

In Machhi Singh case (supra) it was observed: (SCC p. 489, para 39)

The following questions may be asked and answered as a test to B
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 <:alls for a
death sentence?
(b) Are the circumstances of the crime such that there is no C
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 's case (supra) D
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 E
'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 F
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 G
to be drawn up and in doing so the mitigating circumstances have to
be accorded full weightag~ and a just balance has to be struck between
the aggravating and the mitigating circumstances before the option is
exercised.
H
848 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A In rarest of rare cases when collective con~cience 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:

B (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
C reward or a cold-blooded murder for gains of a person vis-a-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
D 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 woma!l
on account of infatuation.

(4) When the crime is enormous in proportion. For instance when
E multiple murders, say of all or almost all the me111bers 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 helpl~ss
woman or old or infirm person or a person vis-a-vis whom the murderer
F 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
G 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.

A convict hovers between life and death when the question of gravity
of the offence and award of adequate sentence comes up for consideration.
H Mankind has shifted from the state of nature towards a civilized society and
BABLU @MUBARIK HUSSAIN v. STATE OF RAJASTHAN [PASAYA T, J. ]849

it is no longer the physical opinion of the majority that takes away the liberty A
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 B
the screening of the material by the informed man i.e. the Judge that leads
to detennination of the lis.

The principle of proportion between crime and punishment is a principle
of just desert that serves as the foundation of every criminal sentence that C
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. D
The criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpabil!ty 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 pennit sentences that
reflect more subtle considerations of culpability that are raised by the special E
facts of each case. Judges in essence affinn that punishment ought always
to fit the crime; yet in practice sentences are detennined 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 traffic results of his crime. Inevitably F
these considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and
widespread.

Proportion between crime and punishment is a goal respected in principle,
and in spite of errant notions, it remains a strong influence in the detennination G
of sentences. The practice of punishing all serious crimes with equal severity
is now unknown in civilized societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in recent times.
Even now a single grave infraction that is thought to call for unifonnly drastic
measures. Anything less than a penalty of greatest severity for any serious H
850 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A crime is thought then 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.

B Section 85 IPC deals with act of a person incapable of judgment by
reason of intoxiCation caused against his will. As the heading of the provision
itself shows, intoxication must have been against his will and/or the thing
which he intoxicated was administered to him without his knowledge. There
is no specific plea taken in the present case about intoxicant having
C administered without appellant's knowledge. The expression "without his
knowledge" simply means an ignorance of the fact that what is being
administered to him is or contains or is mixed with an intoxicant.

The defence of drunkenness can be availed of only when intoxication
produces such a condition as the accused loses the requisite intention for the
D offence. The .onus of proof about reason of intoxication due to which the
accused had become incapable of having particular knowledge in forming the
particular intention is on the accused. Basically, three propositions as regards
the scope and ambit of Section 85 IPC are as follows:

(i) The insanity whether produced by drunkenness or otherwise is
E a defence to the crime charged;
(ii) Evidence of drunkenness which renders the accused incapable
of forming the specific intent essential to constitute the crime
should be taken into account with the other facts proved in
order to determine whether or not he had this intent; and
F (fu) The evidence of drunkenness falling short of a proved incapacity
in the accused to form the intent necessary to constitute the
crime and merely establishing that his mind is affected by drink
so that he more readily give to some violent passion, does not
rebut the presumption that a man intends the natural
consequences of his acts.
G
In the instant case, the plea of drunkenness can never be an excuse for
the brutal, diabolic acts of the accused. The trial Court and the High Court
have rightly treated the case to be one falling in rarest of rare category
thereby attracting the death sentence.
H
BABLU@ MUBARIK HUSSAIN v. STATE OF RAJAS THAN [PASA YAT, J. ]851

The brutal acts done by the accused-appellant are diabolic in conception A
and cruel in execution. The acts were not only brutal but also inhuman with
no remorse for the same. Merely because he claims to be a drunk at the
relevant point of time, that does not in any way get diluted not because of
what is provided in Section 85 IPC but because one after another five lives
were taken and that too of four young children. This case squarely falls
under the rarest of rare category to warrant death sentence. B
The appeal deserves dismissal which we direct.

B.K. Appeal dismissed.

c

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