Holding

The Supreme Court upheld the conviction but commuted the death sentence to life imprisonment, finding that mitigating circumstances outweighed the aggravating factors.

Summary

The appellant was found with a two‑year‑old girl under his bed after the child went missing; medical, eye‑witness, circumstantial and Y‑STR DNA evidence established that he kidnapped, raped (vaginal and unnatural intercourse) and murdered the child. The trial court and High Court convicted him under IPC sections 302, 363, 376 and 377 and imposed the death penalty. The Supreme Court upheld the conviction but, applying the "rarest of rare" doctrine, held that mitigating factors – the appellant’s young age, lack of prior record, poverty, and the fact that the crime was not pre‑planned – outweighed the aggravating circumstances, and therefore commuted the death sentence to life imprisonment. The Court also rejected the challenge to the reliability of Y‑STR DNA analysis and noted that the POCSO amendment, though post‑factum, reflected legislative intent but did not apply retroactively.

Issues considered

The prosecution proved the offences under IPC sections 302, 363, 376 and 377 beyond reasonable doubt.
The admissibility and reliability of Y‑STR DNA evidence in identifying the accused.
Whether the death penalty is warranted under the "rarest of rare" test for this case.
Whether the 2019 amendment to the POCSO Act can be applied to an offence committed before its enactment.
The balance of aggravating versus mitigating circumstances for sentencing.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 354(3)
Indian Evidence Act, 1872s. 106
Indian Penal Code, 1860s. 302, s. 363, s. 376, s. 377
Protection of Children from Sexual Offences Act, 2012s. 5, s. 6

Subjects

kidnappingrapemurderchild sexual abusedeath penaltyrarest of rare doctrineDNA evidenceY‑STRPOCSO Actsentencingmitigating circumstancesaggravating circumstancescircumstantial evidence

Judgment

712 [2019]
SUPREME COURT 15 S.C.R. 712
REPORTS [2019] 15 S.C.R.

A RAVI S/O ASHOK GHUMARE
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1488-1489 of 2018)
B OCTOBER 03, 2019
[R. F. NARIMAN, SURYA KANT
AND R. SUBHASH REDDY, JJ.]
Penal Code, 1860: ss.302, 363, 376 and 377 – Kidnapping,
C rape/unnatural intercourse and murder of two year old girl –
Prosecution case was that on the fateful day, the victim child went
missing around 4.00 p.m. – During the search operations by police
and family members of the missing child, it surfaced that the
appellant was seen distributing chocolates to children around the
time the child went missing – Police reached the house of appellant
D and nabbed the appellant red handed under the bed with the victim
child in naked condition – Trial court and High Court concurrently
held him guilty and awarded death sentence – Appeal against
conviction and sentence – Held: It stood conclusively established
that the victim child was brutally assaulted and subjected to vaginal
E and unnatural intercourse – She was inflicted multiple injuries on
face, head, neck, external genitalia as well as inside the uterus
and urethra – Medical opinion was that death was due to throttling
– There was overwhelming eye-witness account, circumstantial
evidence, medical evidence and DNA analysis on record which
conclusively proved that it was appellant and he alone, who
F committed the horrendous crime – Appellant had the special
knowledge as to in what circumstances the victim child suffered
multiple injuries – Burden to prove that those injuries were not
caused by him was on the appellant alone in view of s.106 of the
Evidence Act, which he miserably failed to discharge though the
G evidence on record proved 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 –
Conviction of appellant is upheld – Protection of Children from
Sexual Offences Act, 2012 – Protection of Children from Sexual
Offences Amendment Act, 2019.
H
712
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 713

Sentence/Sentencing: Death sentence – Rape and murder of A
two year old girl – Prayer for commutation of death sentence –
Held: The victim in this case was barely a two-year old baby girl
whom the appellant kidnapped and apparently kept on assaulting
over 4-5 hours till she breathed her last – Appellant who had no
control over his carnal desires surpassed all natural, social and
B
legal limits just to satiate his sexual hunger – He ruthlessly finished
a life which was yet to bloom – He, 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
was betrayed and social values were impaired – The unnatural sex
with a two-year old toddler exhibits a dirty and perverted mind, C
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
– He was thus in his full senses while he indulged in this senseless
act – He showed no remorse or repentance for the gory crime, D
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 revealed his lack of kindness or compassion and would
lead to believe that he can never be reformed – That being so, case
for interference with the death sentence is not made out – Protection E
of Children from Sexual Offences Act, 2012 – Penal Code, 1860
– ss.302, 363, 376 and 377.
Criminal Law: Evidence – Motive – Though the High Court
observed that ‘satisfaction of lust’ and ‘removal of trace’ was the
appellant’s motive but motive is not an explicit requirement under F
the Indian Penal Code, though ‘motive’ may be helpful in proving
the case of the prosecution in a case of circumstantial evidence –
The case in hand was not entirely based on circumstantial evidence
as there were reliable eye-witness depositions who had seen the
appellant committing the crime, may be in part – Such an
unshakable evidence with dense support of DNA test did not require G
the definite determination of the motive of the appellant behind the
gruesome crime.
Sentence/Sentencing: Death sentence – Doctrine of
proportionality – The object and purpose of determining quantum
of sentence has to be ‘society centric’ without being influenced by H
714 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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 deterrent
B punishment that commensurates with the gravity of offence.
Protection of Children from Sexual Offences Act, 2012: s.5
– Protection of Children from Sexual Offences Amendment Act,
2019 – Aggravated Penetrative Sexual Assault – Punishment – The
unamended Act defines “Aggravated Penetrative Sexual Assault”
C in s.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 was rigorous
imprisonment for a term not less than 10-years but which may
extend for imprisonment for life with fine – The minimum sentence
for an aggravated penetrative sexual assault has been increased
D
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 sexual assault
on a child below 12 years – The Legislature impliedly distanced
E itself from the propounders of “No-Death Sentence” in “No
Circumstances” theory and 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
F 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
G 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 – Crime against children – Sentence/
H Sentencing.
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 715

Administration of Criminal Justice: Punishment to the rape A
accused – Sentencing Policy 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
B
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 innocent – Sentence/Sentencing.
Evidence: Medical evidence – DNA – Plea of appellant-
accused that the prosecution relied on the DNA evidence despite
the fact that the method of analysis used i.e. Y-Chromosome Short C
Tandem Repeat Polymorphism (Y-STR) has certain inherent
limitations due to which accurate identification of accused cannot
be established beyond reasonable doubt and that the said method
did not accurately identify the accused as the perpetrator; and
unlike other methods say autosomal-STR analysis, it cannot D
distinguish between male members in the same lineage – Held: Plea
is rejected – The globally acknowledged medical literature coupled
with the statement of the Assistant Director, Forensic Science
Laboratory leaves no doubt that in cases of sexual assualt, DNA
of the victim and the perpetrator are often mixed – Traditional DNA
analysis techniques like “autosomal-STR” are not possible in such E
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 exculpatory evidence and is F
extensively relied upon in various jurisdictions throughout the world
– 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 G
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 – Medical jurisprudence. H
716 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Sentence/Sentencing: Death sentence – Commutation of –
Aggravating and mitigating circumstances – Rape and murder of
two year old girl child – Held: (Per R. Subhash Reddy, J. -
dissenting on sentencing part) – In a case of conviction based on
circumstantial evidence, ordinarily the extreme punishment of death
penalty should not be imposed – If in a given case, guilt of the
B
accused is proved beyond reasonable doubt, by establishing chain
of circumstances, resulting in conviction, in appropriate cases
death penalty can be imposed only after considering balancing
aspects of aggravating and mitigating circumstances – But, at the
same time ordinarily, if no special reasons exist, in a case of
C conviction based on circumstantial evidence, death penalty should
not be imposed – In the instant case, conviction of the appellant
was mainly based on circumstantial evidence – The evidence on-
record showed that on the day of occurrence, the appellant was
under influence of liquor and committed the offence and,
therefore, it cannot be termed as a pre-planned one, to count the
D
same as an aggravating circumstance, for balancing aggravating
and mitigating circumstances – 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 – There was no evidence from
E the side of prosecution, to show that there was no possibility of
reformation and rehabilitation of the appellant – Age of the
appellant was 25 years at the relevant time – He also had no crime
record – Thus, the mitigating circumstances of the appellant,
dominated over the aggravating circumstances, to modify the death
sentence to that of life imprisonment – In view of all these aspects,
F
death penalty imposed on the appellant is modified to that of life
imprisonment, for the offence under s.302 IPC – Penal Code, 1860
– s.302.
Disposing of the appeals, the Court
G HELD: Per SURYA KANT, J. (for R.F. Nariman, J. and
himself)
1. During search operations by the police and also the
family members of the missing child, it surfaced that the
appellant was distributing chocolates to allure children near
H Maroti Temple on that day and around that time the child went
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 717

missing. The police-team, the father of the victim and his A
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 stood
established conclusively that deceased had been brutally
assaulted and subjected to vaginal and unnatural intercourse.
B
The victim had been inflicted multiple injuries on face, head,
neck, external genetalia as well as inside the uterus and urethra.
The appellant had the special knowledge 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 C
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.
[Para 30] [738-C-G]
D
Scientific Evidence connecting the appellant with the Crime:
2.1 P.W.11 Assistant Director in Forensic Science
Laboratory (FSL), Mumbai testified that they conducted the
DNA test as per the guidelines issued by the Director of Forensic
Science, Ministry of Home Affairs, New Delhi. P.W.11 E
accordingly prepared the DNA report which was duly attested
by the Assistant Chemical Analyser also. On seeing the contents
of his report, P.W.11 has pertinently deposed that there were
sexual intercourse and unnatural intercourse on the victim by
the accused. The unshakable scientific evidence which nailed
F
the appellant from all sides, was sought to be impeached on the
premise that the method of DNA analysis “Y-STR” followed in
the instant case was unreliable. It was 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 G
same lineage. [Paras 32-34] [739-D; 740-H; 741-A-B]
2.2 The globally acknowledged medical literature coupled
with the statement of P.W.11 – Assistant Director, FSL leaves
nothing mootable that in cases of sexual assualt, DNA of the
victim and the perpetrator are often mixed. Traditional DNA H
718 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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 exculpatory
B evidence and is extensively relied upon in various jurisdictions
throughout the world. 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.
C 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
D cases. Considering the perfect match of the samples and there
being nothing to discredit the 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
E house except the appellant. There was thus overwhelming eye-
witness account, circumstantial evidence, medical evidence and
DNA analysis on record which conclusively proved that it is the
appellant and he alone, who is guilty of committing the
horrendous crime in this case. [Paras 35, 36] [741-C-G; 742-A-
F B]
3. 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
G prosecution in a case of circumstantial evidence. The case in
hand is not entirely based on circumstantial 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
H gruesome crime. [Para 37] [742-C-E]
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 719

SENTENCING: A
4.1 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 B
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. Equally important is the stand-point of a `victim’ which C
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 D
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 E
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. The
Sentencing Policy, therefore, needs to strike a balance between
the two sides and count upon the twin test of (i) deterrent effect,
F
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 innocent. There is no gainsaying G
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. [Paras
50-52] [748-D-H; 749-A-B] H
720 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Ashok Debbarma v. State of Tripura (2014) 4 SCC 747
: [2014] 4 SCR 287 ; Vasanta Sampat Dupare v. State
of Maharashtra (2017) 6 SCC 631 : [2017] 3 SCR
850 – Distinguished
4.2 Recent amendments carried out by Parliament in the
B Protection of Children from Sexual Offences Act, 2012 by way
of The Protection of Children from Sexual Offences
(Amendment) Act, 2019 as notified on 6 th 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
C of 12 years.” Originally, the punishment for an aggravated sexual
assault was rigorous imprisonment for a term not less than 10-
years but which may extend for imprisonment for life with fine.
The minimum sentence for an aggravated penetrative sexual
assault has been increased from 10 years to 20 years and
D 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. [Paras 57, 59] [752-B-C-F-G]
E Khushwinder Singh v. State of Punjab, (2019) 4 SCC
415 : [2019] 3 SCR 446 ; Manoharan v. State by
Inspector of Police, Variety Hall Police Station,
Coimbatore, (2019) SCC Online 951 – relied on
4.3 The Legislature has impliedly distanced itself from the
F propounders of “No-Death Sentence” in “No Circumstances”
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
G 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
H hitherto will bear in mind the latest Legislative Policy even
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 721

though it has no applicability in a case where the offence was A
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. [Para 60] [752-G-
H; 753-A-B]
B
4.4 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 C
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 D
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 E
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 kindness or compassion and leads to believe
that he can never be reformed. That being so, this Court cannot F
write off the capital punishment so long as it is inscribed in the
statute book. [Para 61] [753-D-H]
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413 ; Bachan Singh v. State of Punjab
(1980) 2 SCC 684 – followed. G
Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 ;
Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 ;
Rajindra Pralhadrao Wasnik v. State of Maharashtra
in Review Petition(Crl.) Nos. 306-307/2013 Parsuram
v. State of Madhya Pradesh (2019) 8 SCC 382 ; H
722 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Dhanjoy Chaterjee v. State of West Bengal (1994) 2
SCC 220 ; [1994] 1 SCR 37 ; Shankar Kishanrao
Khade v. State of Maharashtra (2013) 5 SCC 546 :
[2013] 6 SCR 949 ; Shivaji v. State of Maharashtra
(2008) 3 SCC 26 ; Santosh Kumar Satishbhushan
B Bariyar v. State of Maharashtra (2009) 6 SCC 498 :
[2009] 9 SCR 90 ; Swamy Shraddananda @ Murli
Manohar Mishra v. State of Karnataka (2008) 13 SCC
767 : [2008] 11 SCR 93 ; Union of India v. V. Sriharan
@ Murugan & Ors. (2016) 7 SCC 1 : [2015] 14 SCR
613 – referred to.
C
California v. Ramos 463 U.S.992 – referred to.
Per R. SUBHASH REDDY, J. (Partly dissenting)
1. The deposition of PW-9 (father of the victim child)
showed that he was a fruit vendor, residing in Nutan Vasahat
D area, Jalna and the appellant also resided 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.
Where it is clear from the evidence on-record that the appellant
was under influence of liquor and committed the offence, cannot
E be termed as a pre-planned one, to count the same as an
aggravating circumstance, for balancing aggravating and
mitigating circumstances. Further, this case on hand rested
solely on the circumstantial evidence. In a case of conviction
based on circumstantial evidence, ordinarily the extreme
punishment of death penalty should not be imposed. In a given
F 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,
G
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, the death sentence, imposed on
him, is to be modified. From such evidence on-record, it is easy
to assess the socio-economic condition of the appellant and it
H can certainly be said that he is a person below poverty line and
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 723

this can also be considered as one of the mitigating factors, while A
balancing the aggravating and mitigating factors. [Paras 18, 19,
24, 28, 29, 31] [763-E; 764-B; 766-B; 767-E-G; 768-B-G]
Lehna v. State of Haryana (2002) 3 SCC 76 : [2002]
1 SCR 377 ; Sunil v. State of Madhya Pradesh (2017)
4 SCC 393 ; Rajendra Pralhaderao Wasnik v. State B
of Maharashtra Review Petition (Criminal) Nos. 306-
307 of 2013 ; Sandesh v. State of Maharashtra (2013)
2 SCC 479 : [2012] 13 SCR 1049 ; Mohinder Singh
v. State of Punjab (2013) 3 SCC 294: [2013] 3 SCR
90 ; Sushil Sharma v. State (NCT of Delhi) (2014) 4
SCC 317 : [2013] 16 SCR 616 ; Amit v. State of C
Maharashtra (2003) 8 SCC 93 : [2003] 2 Suppl. SCR
285 ; Surendra Pal Shivbalakpal v. State of Gujarat
(2005) 3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Bishnu
Prasad Sinha v. State of Assam (2007) 11 SCC 467 :
[2007] 1 SCR 916 ; Aloke Nath Dutta v. State of West D
Bengal (2007) 12 SCC 230 ; Swamy Shraddananda
v. State of Karnataka (2007) 12 SCC 287 ; Sunil
Damodar Gaikwad v. State of Maharashtra (2014) 1
SCC 129 : [2013] 9 SCR 295 – relied on
2. Recent amendments are carried out to the Protection
E
of Children from Sexual Offences Act, 2012 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 F
imprisonment, which shall not be less than 20 years, which may
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
G
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. Even then, the legislative
intent which resulted in amendments to POCSO should not be
forgotten, while dealing with the offences against the children.
At the same time, even for imposing the death sentence, for H
724 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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, Machhi Singh and Sushil Murmu will continue to
apply. Further, the aggravating and mitigating factors are to be
considered with reference to the facts of each case and there
B
cannot be any hard and fast rule for balancing such aspects. [Para
32, 33] [768-H; 769-A-E]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 ;
Machhi Singh and Ors. v. State of Punjab (1983) 3
SCC 470 : [1983] 3 SCR 413 ; Sushil Murmu v. State
C of Jharkhand (2004) 2 SCC 338 : [2003] 6 Suppl.
SCR 702 – relied on.
3. 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
D 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
E 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. [Para 34]
[769-F-G]

F Nand Kishore v. State of Madhya Pradesh [2019] 1
SCR 260 ; Raju Jagdish Paswan v State of
Maharashtra Criminal Appeal No. 88-89 of 2019 ;
Vijay Raikwar v. State of Madhya Pradesh (2019) 4
SCC 210 – relied on.
Jagmohan Singh v. State of Uttar Pradesh (1973) 1
G
SCC 20 : [1973] 2 SCR 541 ; Kalu Khan v. State of
Rajasthan (2015) 16 SCC 492 – referred to.
Case Law Reference
In the Judgement of Surya Kant, J.
H (2015) 16 SCC 492 referred to Para 38
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 725

(2017) 4 SCC 393 referred to Para 38 A
(2019) 8 SCC 382 referred to Para 39
[1994] 1 SCR 37 referred to Para 40
[2013] 6 SCR 949 referred to Para 40
(2008) 3 SCC 26 referred to Para 40 B
[2009] 9 SCR 90 referred to Para 40
[2008] 11 SCR 93 referred to Para 43
[2015] 14 SCR 613 referred to Para 43
C
(1980) 2 SCC 684 referred to Para 44
[1983] 3 SCR 413 referred to Para 45
[2014] 4 SCR 287 referred to Para 53
[2017] 3 SCR 850 referred to Para 54
D
[2019] 3 SCR 446 referred to Para 55
(2019) SCC Online 951 referred to Para 56
In the Judgement of R. Subhash Reddy, J.
[1973] 2 SCR 541 referred to Para 7
E
(1980) 2 SCC 684 relied on Para 7
[1983] 3 SCR 413 relied on Para 8
(2015) 16 SCC 492 referred to Para 13
[2002] 1 SCR 377 relied on Para 14 F
(2017) 4 SCC 393 relied on Para 15
[2012] 13 SCR 1049 relied on Para 19
[2013] 3 SCR 90 relied on Para 20
[2013] 16 SCR 616 relied on Para 20 G
[2003] 2 Suppl. SCR 285 relied on Para 21
[2004] 4 Suppl. SCR 464 relied on Para 22
[2007] 1 SCR 916 relied on Para 23
(2007) 12 SCC 230 relied on Para 24 H
726 SUPREME COURT REPORTS [2019] 15 S.C.R.

A (2007) 12 SCC 288 relied on Para 25
[2013] 9 SCR 295 relied on Para 26
[2003] 6 Suppl. SCR 702 relied on Para 27
[2019] 1 SCR 260 relied on Para 36
(2019) 4 SCC 210 relied on Para 37
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1488-1489 of 2018.
From the Judgment and Order dated 20.01.2016 of the High
Court of Judicature at Bombay, Bench at Aurangabad in Confirmation
C Case No. 1 of 2015 and in Criminal Appeal No. 783 of 2015.
Ms. Nitya Ramakrishnan, Ashwath Sitaraman, Archit Krishna,
Ms. Sneha Singh, Shadan Farasat, Advs. for the Appellant.
Nishant R. Katneshwarkar, Anoop Kandari, Advs. for the
Respondent.
D The Judgments of the Court were delivered by
SURYA KANT, J.*
1. This appeal assails the judgment dated 20th January, 2016
passed by the High Court of Judicature at Bombay, Bench at
E 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)
F of different durations with fine for the rest of offences. The Trial Court
as well as the High Court have 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
G 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
H * Ed. note : Judgment delivered by Surya Kant, J. (for R.F. Nariman, J. and himself)
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 727
[SURYA KANT, J.]

his relatives started looking for the child. During their search, the A
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 B
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 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 C
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 D
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 –
E
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 F
Nayeem.

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. G
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. H
728 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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
C 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.?
D
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?

E 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?

F 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
G
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
H conscience of the society, it found that the R.R. Test (rarest of the rare
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 729
[SURYA KANT, J.]

cases) is fully attracted, hence capital punishment was imposed on the A
appellant under Section 302, IPC.
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:- B
“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
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, D
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 E
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.
F
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. G
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. H
730 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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-
B
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 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
C 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
D
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
E
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
F too found the appellant under the cot. 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
G 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
H was the appellant. It was pointed out that the testimony of P.W.3, P.W.4
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 731
[SURYA KANT, J.]

and P.W.9 varies at the point as to what they saw on entering the house. A
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
B
by P.W.3 or P.W.4 and thus there is inconsistent version on what was
seen inside the appellant’s house upon 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 C
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. D
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 E
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 of the
appellant, it was imperative upon the prosecution to establish that the F
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 G
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 H
732 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
analysis, Y-STR analysis does not 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
C 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
D ‘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
E 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
F corresponded to the internal 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.
G
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
H below other 2½ cm. reddish in colour.
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 733
[SURYA KANT, J.]

5. Abrasion, 5 in number, at the centre over lower back, A
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 B
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. C

2. Right and left lungs congested.
3. Heart was found congested.
4. Right side of the heart was full of blood and left side
was empty. D
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 E
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,
F
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
G
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. On 06.03.2012,
while going towards his house at about 3.30 to 4.00 p.m. he met the H
734 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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
C 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
D
not present at his house at the time of occurrence. 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
E 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.
F 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
G 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 persons gathered at the scene, the police rescued the
appellant and took him to the police station. The people were demanding
H that the appellant be handed over to them. On a specific court question
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 735
[SURYA KANT, J.]

as to in which manner and in what circumstances P.W.3 saw the A
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.”
B
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 C
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 around it and got suspicious that D
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 E
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.
F
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 G
his sister. The husband of his sister, Iliyas informed him on 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 H
736 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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
C
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 covering letter is Exbt. P-51. He also carried the
blood sample of the appellant to C.A. Office, Mumbai and deposited
D 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
E 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.
F 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
G
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 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
H the police and found that his daughter was lying under the bed and the
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 737
[SURYA KANT, J.]

appellant was also lying under the bed. His daughter was naked and A
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. B
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 C
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 accused was seized. There were blood-stains and semen
stains on it. The seizure panchnama Exbt. P-19 bears my signature D
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
E
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 F
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
G
was not sent as per the prescribed format, another blood sample of
the appellant was 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 H
738 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B 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.
C
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 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
D 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
E
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
F 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
G the beastly attack on her.
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.
H He has testified that samples of swabs, blood sample and nails sample
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 739
[SURYA KANT, J.]

of the victim were taken by them. So is the statement of Dr. Bedarkar A
(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
B
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. C
The blood sample of the appellant was also taken and all the seized
articles/samples were sent to Mumbai for examination.
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, D
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 E
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 F
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 G
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 polymorphism [YSTR] and by
using Polymerase Change Reaction [for short PCR] amplification
technique. DNA profile was generated. I analyzed all these DNA H
740 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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
C 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-
D 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
E 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
F 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
G same source of male origin. DNA 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
H “I can opine on going through the reports Exbts. 75-76 that there were
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 741
[SURYA KANT, J.]

sexual intercourse and unnatural intercourse on the victim by the A
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. B
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 C
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 mixed. Traditional DNA analysis techniques like
“autosomal-STR” are not possible in such cases. Y-STR method D
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 E
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 F
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 DNA analysis process, the probative value of the
forensic report as well as the statement of P.W.11 are very high. Still G

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 H
742 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B 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’
C
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
D sometimes human beings act irrationally and at the spur of the moment.
The case in hand is not entirely based on circumstantial 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.
E
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
F 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
G
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
H interdict the extreme penalty. Learned Counsel heavily relied upon (i)
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 743
[SURYA KANT, J.]

Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 in which a three- A
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
B
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, C
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 D
rendered in Rajindra Pralhadrao Wasnik v. State 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 E
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. F
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 G
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 Maharashtra (2008) 3 SCC 269 which
too was held to be per curian in Santosh Kumar Satishbhushan H
744 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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;
C (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.
D 42. Learned State Counsel, contrarily, maintained that the instant
case satisfies the principle of ‘rarest of the rare cases’ 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
E 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
F 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.
G
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
H hand and the humanity crying against death penalty on the other and
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 745
[SURYA KANT, J.]

elucidated the strict parameters to be adhered to by the Courts for A
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
B
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:
C
“(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 D
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:- E
“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 F
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 G
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 H
746 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
“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
C 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
D 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 the
E 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
F
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
G 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
H in the course for betrayal of the motherland.
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 747
[SURYA KANT, J.]

III. Anti-social or socially abhorrent nature of the crime A
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 B
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 C
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 D
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.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who E
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 F
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 G
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. H
748 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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.
B 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
C 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
D 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
E 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
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
F 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
G 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
H between the two sides and count upon the twin test of (i) deterrent
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 749
[SURYA KANT, J.]

effect, or (ii) complete reformation for integration of the offender in A
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
innocent. There is no gainsaying that the punishment is a reflection of
B
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
C
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 D
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 E
was a case where the guilt was established only on the basis of
circumstantial evidence.
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 F
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
G
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 H
750 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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 fact that
the victim was a helpless child of four years clearly outweigh the
B
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
C 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
D 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
E 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
F
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
G second stage/instalment. Therefore, considering 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
H prosecution and against the accused.
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 751
[SURYA KANT, J.]

Therefore, striking a balance between the aggravating and A
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 B
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 C
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 D
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 which caused their death by drowning. This Court (by majority) E
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 F
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
G
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. H
752 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B Offences (Amendment) Act, 2019 as notified on 6 th 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 was rigorous imprisonment
for a term not less than 10-years but which may extend for
C 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:-
D “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
E 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]
F
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
G 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” 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,
H `death penalty’ can also be imposed. In the Statement of Objects and
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 753
[SURYA KANT, J.]

Reasons of amendment, Parliament has shown its concern of the fact A
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
B
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.
C
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 of subsequent decisions, some of which have
been cited above. Having said that, it may be seen that the victim was D
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 E
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 F
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 G
deliberate, well-designed silence with a standard defence of ‘false’
accusation reveals his lack of 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. H
754 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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.
C
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,
D 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.
E 2. The appellant was tried for committing the rape and murder
on the minor girl child “Zoyabano” and he was 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
F 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
G
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)
H and a sentence of rigorous imprisonment for 10 years for the offence
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 755
[R. SUBHASH REDDY, J.]

punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five A
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 that all the sentences of
imprisonment shall run concurrently.
4. The reference which was made to the High Court under B
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. C

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. D

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. E

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 Pradesh1.
Further, in Constitution Bench, this Court in the case of Bachan Singh F
v. State of Punjab2, ,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 G
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
1
1973(1) SCC 20
2
1980(2) SCC 684 H
756 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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 observed that, what is the relative weight to be
given to the aggravating and mitigating factors, depends on facts and
B
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
C (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
D 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
E (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
F
(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,
G or hadceased to be such member or public servant;
or
(d) if the murder is of a person whohad acted in the
lawful discharge of his duty under Section 43 of the
Code of Criminal Procedure, 1973, or who had rendered
H assistance to a Magistrate or a police officer demanding
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 757
[R. SUBHASH REDDY, J.]

his aid or requiring his assistance under Section 37 and A
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. B
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 C
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 D
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 E
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
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 F
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- G
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 H
758 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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
B
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:
C
“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
D extreme mental or emotional disturbance.
(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
E 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.
F
(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.
G
(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
H undoubtedly relevant circumstances and must be given
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 759
[R. SUBHASH REDDY, J.]

great weight in the determination of sentence. Some of A
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
B
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 C
the case of Machhi Singh and Ors. v. State of Punjab3, 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 D
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? E
(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 F
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 G
case2 will have 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
case 2 :
3
1983(3) SCC 470 H
760 SUPREME COURT REPORTS [2019] 15 S.C.R.

A (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
B ‘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
C 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
D
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.
E 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 night in quick succession in
different neighbouring villages, confirmed the death sentence imposed
F 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
G 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,
H same is also the ground not to impose capital punishment, of death.
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 761
[R. SUBHASH REDDY, J.]

13. In support of his argument, learned counsel for the appellant A
has relied on the three Judge Bench Judgment of this Court, in the case
of Kalu Khan v. State of Rajasthan 4, wherein the accused was
charged for offence of abduction, rape and murder of 4 year old girl
child, death sentence was commuted to life imprisonment. Paragraphs
32 and 33 of the said judgment reads as under:
B
“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 C
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 D
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. E
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 F
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
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, G
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.”
4
(2015) 16 SCC 492 H
762 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 14. In the case of Lehna v. State of Haryana5, 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:
B “......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”).
C 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
D 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 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
E 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.
F
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
G 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 Pradesh6, wherein the accused, aged about 25 years at the
5
(2002) 3 SCC 76
6
H (2017) 4 SCC 393
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 763
[R. SUBHASH REDDY, J.]

relevant time, was charged for offence of rape and murder of 4 year A
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 be reformed and rehabilitated, are the other
B
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 Maharashtra 7, 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 C
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 D
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 E
of crime. As such, it is clear that on the day of occurrence, he was
under influence of liquor 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 F
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, G
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
7
Review Petition (Criminal) Nos. 306-307 of 2013 H
764 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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 count the same as an
B
aggravating circumstance, for balancing aggravating and mitigating
circumstances.
20. In the case of Sandesh v. State of Maharashtra8, 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
C be reformed. Similarly, in Mohinder Singh v. State of Punjab9, 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
D 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)10,
this Court acknowledged that among various factors, one of the factors
E 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:
“103. In the nature of things, there can be no hard-and-fast rules
F 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
G 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
8
(2013) 2 SCC 479
9
(2013) 3 SCC 294
H 10
(2014) 4 SCC 317
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 765
[R. SUBHASH REDDY, J.]

society are factors which the criminal court will have to examine A
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 Maharashtra11, this Court B
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 C
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 penalty is not awarded.
Though the offence committed by the appellant deserves severe
condemnation and is a most heinous crime, but on cumulative D
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
Gujarat12, this Court has held that the involvement in any previous
criminal case by the accused, was considered to be a factor, to be taken E
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 F
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 G
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

11
(2003) 8 SCC 93
12
2005(3) SCC 127 H
766 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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 circumstantial
evidence.
B
25. In the case of Bishnu Prasad Sinha v. State of Assam 13,
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:
C
“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
D 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
E Procedure. He accepted his guilt.”
26. Further, in the case of Aloke Nath Dutta v. State of West
Bengal14, the principle that death penalty should ordinarily not to be
awarded, in a case arising out of circumstantial evidence, was broadly
accepted with the rider that there should be some “special reason” for
F 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
G 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
13
(2007) 11 SCC 467
14
H (2007)12 SCC 230
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 767
[R. SUBHASH REDDY, J.]

rigorous imprisonment for life as against Aloke Nath. A
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
Karnataka 15, this Court has held that the convictions based on
seemingly conclusive circumstantial evidence, should not be presumed B
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 C
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 punishment is unique in its total D
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 E
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 F
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. G
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
15
(2007) 12 SCC 288 H
768 SUPREME COURT REPORTS [2019] 15 S.C.R.

A Vasahat 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.
B
30. In a judgment of this Court, in the case of Sunil Damodar
Gaikwad v. State of Maharashtra16, 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
C 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
D 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 introduce the same. Poverty,
socio-economic, psychic compulsions, undeserved adversities in
life are thus some of the mitigating factors to be considered, in
E
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
F 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
G 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
16
H (2014) 1 SCC 129
RAVI S/O ASHOK GHUMARE v. STATE OF MAHARASHTRA 769
[R. SUBHASH REDDY, J.]

‘POCSO Act’), by way of Protection of Children from Sexual Offences A
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 extend
B
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. C
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 D
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 Jharkhand17, 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 considered with reference to the facts of E
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. F
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 G
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.
17
(2004) 2 SCC 338 H
770 SUPREME COURT REPORTS [2019] 15 S.C.R.

A 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:
36. In a three Judge Bench Judgments of this Court, in the case
B of Nand Kishore v. State of Madhya Pradesh18 dated 18.01.2019 and
in the case of Raju Jagdish Paswan v State of Maharashtra19 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.
C 37. Further, in a recent three Judge Bench Judgment of this Court,
in the case of Vijay Raikwar v. State of Madhya Pradesh 20, 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
D 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.
E
39. For the aforesaid reasons, these appeals are allowed 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.
F

Devika Gujral Appeals disposed of.

G

18
Criminal Appeal No. 94 of 2019
19
Criminal Appeal No. 88-89/2019
20
H (2019) 4 SCC 210