Holding

The conviction and death sentences were upheld because the circumstantial evidence satisfied the legal tests and the case fell within the "rarest of rare" category.

Summary

The accused were convicted of raping and murdering a young woman, Shivamma, under IPC sections 376 and 302 read with section 34, based solely on circumstantial evidence. The trial court sentenced them to death, which the Karnataka High Court confirmed under Section 366 of the CrPC. On appeal, the Supreme Court examined whether the circumstantial evidence formed a complete, unbroken chain satisfying established legal tests, and whether the offence qualified as "rarest of rare" to merit the death penalty. The Court held that the evidence met all the criteria for conviction and that the brutality, prior attempts at rape, and the murder of an innocent young woman placed the case within the rarest of rare category. Consequently, the death sentences were upheld. The appeal was dismissed.

Issues considered

The adequacy of circumstantial evidence to sustain conviction under IPC sections 376 and 302 r/w 34.
Whether the death penalty is justified under the "rarest of rare" doctrine.
Whether the High Court's confirmation of the death sentence under Section 366 CrPC was proper.

Legislation cited

Code of Criminal Procedures. 366, s. 374(2)
Indian Penal Code, 1860s. 302, s. 34, s. 376

Subjects

rapemurdercircumstantial evidencedeath penaltyrarest of rareIPCCrPCcommon intentionconvictionsentencing

Judgment

~
SHIVU AND ANR. A
v.
R.G. HIGH COURT OF KARNATAKA AND ANR.

FEBRUARY 13, 2007

[DR. ARIJITPASAYAT AND LOKESHWARSINGHPANTA, JJ.] B

,_ ~
Penal Code, 1860-Sections 376 & 302 rlw 34-Code of Criminal
Procedure, 1973-Section 366-Accused charged for rape and murder-
Trial Court convicted the accused on basis of circumstantial evidence and
awarded death sentence-High Court confirmed the conviction and sentence-
c
Correctness of-Held, on facts, accused guilty of rape and murder-Death
sentence confirmed as the case falls under 'rarest of rare' category.

Accused attempted to commit rape on two girls but were unsuccessful.
The accused were admonished and were directed to mend their ways. D
Thereafter, the accused raped and murdered the deceased to avoid detection.
After investigation, Prosecution filed a charge sheet before trial court against
the accused under sections 376 and 302 r/w section 34 IPC. The trial court
·;
convicted the accused on the basis of circumstantial evidence and awarded
death sentence to the accused. High Court, in reference under section 366
.. Cr.P.C. and appeal by the accused, confirmed the conviction and sentence. E

In appeal to this Court, the appellants-accused contended that the case
is based on circumstantial evidence and the circumstances highlighted do not
• present a complete chain to warrant any inference about the guilt of the
accused; and, in the alternative, the death sentence awarded is not warranted
as it is not a case of rarest of rare case.
F
(

The State contended that the appellants are hardened criminals as they
have earlier attempted rape of two girls; and that no interference is called for
as the trial court and the High Court have analysed the evidence in great
detail and convicted the
G
Dismissing the appeal, the court
·~
HELD: l. Where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating facts and
._.
555 H
"""

556 SUPREME COURT REPORTS (2007] 2 S.C.R.

A circumstances are found to be incompatible with the innocence of the accused
or the guilt of any other person. The circumstances from which an inference
.,._ -
as to the guilt of the accused is drawn have to be proved beyond reasonable
doubt and have to be shown to be closely connected with the principal fact
sought to be inferred from those circumstances. When the evidence on record
is analysed, the inevitable conclusion is that the prosecution has established
B its accusations. (Paras 12 & 2011560-H, 561-A, B; 563-Gf

Hukum Singh v. State ofRajasthan, AIR (1977) SC I 063; Eradu v. State
of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of Karna/aka,
~
AIR (1983) SC 446; State of U.P. v. Sukhbasi, AIR (1985) SC 1224; Ba/winder

c Singh v, State of Punjab, AIR (1987) SC 350; Ashok Kumar Chatterjee v.
State ofMP., AIR (1989) SC 1890; Bhagat Ram v. State ofPzmjab, AIR (1954)
SC 621; C. Chenga Reddy v. State ofA.P., [1996J 10 SCC 193; Padala Veera
Reddy v. State of A.P., AIR (1990) SC 79; State of UP. v. Ashok Kumar
Sriva.1tava, (1992) Crl. LJ 1104; /fanumant Gov ind Nargundkar v. State of
M.P., AIR (1952) SC 343 and Sharad Birdhichand Sarda v. State of
D Maharashtra, AIR (1984) SC 1622, referred to.

2. Proportion between crime and punishment is a respected in principle,
and in spite of errant notions, it remains a strong influence in the
determination of sentences. Anything less than a penalty of greatest severity '
E
for any serious crime is thought to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from those considerations
. ,___
that make punishment unjustifiable when it is out of proportion to the crime,
uniformly ~isproportionate punishment has some very undesirable practical
consequences. There is no hesitation in holding that the case at hand falls in "
rarest of rare category and death sentence awarded by the trial court and •
F confirmed by the High Court was appropriate. [566-H; 567-A, BJ
')
Bachan Singh v. State of Punjab, [1980J 2 SCC 684 and Machhi Singh
& Ors. v. State of Punjab, [1983) 3 SCC 470, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 202 of
G 2007.

From the Judgment and final Order dated 27.10.2005 and 7.11.2005 of the
)..._
High Court of Kamataka at Bangalore in Criminal Reference Case No. 8/2005

-
and Criminal Appeal No. I 394 of2005.
'I=:
H BasavaPrabhu S. Patil, V.N. Raghupathy, B. Subrahmanya Prasad and '·
SHIVUv. R.G. HIGHCOURTOFKARNATAKA [PASAYAT,J.] 557
..... ·· Narayan P. Kengasur for the Appellants. A
Sanjay R. Hegde, Anil K. Mishra and Vikrant Yadav for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. I. Leave granted.
B
2. Challenge in this appeal is to the judgment rendered by a Division
Bench of the Karnataka High Court accepting the reference made under
Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C. ')and
confirming death sentence awarded to the appellants in respect of offences
punishable under Section 302 read with Section 34 of the Indian Penal Code, C
1860 (in short '!PC') and sentence of I0 years and fine of Rs.25,000/- with
default stipulation for the offence punishable under Section 376 read with
Section 34 !PC awarded by the learned District and Sessions Judge,
Chamarajanagara.

3. Background facts which led to the trial of the accused persons are D
essentially as follows:

.- 4. Jayamma, (PW. l) is the resident of Badrenahalli village in Kollegal
Taluk. She resided with her husband, and children Raju (PW.2), Nagarajamma
(PW. I0) and Shivamma (hereinafter referred to as the 'deceased'). Both the
accused are residents of the same village. The accused-aged about 20 and 22 E
years respectively were sexually obsessed youngsters. Few months prior to
the incident, relating to the present appeal they attempted to commit rape on
Lakkamma [daughter of Puttegowda (PW.7)], but were unsuccessful. For that
act, they were admonished. Later, they attempted to commit rape on PW.JO
(daughter of PW.I). PW. JO was also successful in escaping from their clutches. F
Though in both the incidents, the aggrieved persons wanted to lodge police
complaints, against the accused, at the instance of village elders and family
members of these accused, instead of lodging criminal cases, only Panchayath
of village elders was called on each occasion and the accused were directed
to mend their ways. But this warning had no effect on them. Emboldened by
escape from punishment in those two incidents, they committed rape on the G
deceased a young girl of hardly 18 years and to avoid detection, committed
heinous and brutal act of her murder. On the morning of 15. I 0.200 I, deceased
Shivamma went to the family land situated near her house to dump manure.
As she did not return, PW. l went in search of her after some time. When
Shivamma was not seen in the land, PW. I began to call her by name. Suspecting H
558 SUPREME COURT REPORTS [2007] 2 S. C.R.

A some untoward incident, when PW. I went near the spot, she saw the body
+--
of the deceased lying on the ground with clothes disarrayed. Noticing that
Shivamma was dead, PW. I raised hue and cry and went towards the village
calling people for help. Attracted by her cries, her son PW.2 and other
villagers including Chikkiregowda (PW.3) came to the spot and on learning
B about the incident, especially the fact that the accused had been seen earlier
at the spot where the dead body was found and had on detection run away,
they went in search of the accused. Jn the meantime, Narayana Gowda (PW.5)
the brother clf'PW.1 (maternal uncle of the deceased) who also resides in the
same village came to the house of PW. I and on suspecting the role of the
accused in the rape and murder of Shivamma, wrote down the statement of
C PW.I and after taking her LT.I., took the same to the jurisdictional police at
Rampur police station. M.K. Ali, the S.H.O. ofRampur police station (PW.20)
on receipt of the information of the crime, after accepting the written complaint
as per Ex.P. I, registered a case in Crime No.86/01 for the offences punishable
u/s 376, 302 both read with Section 34 of the !PC against these two accused
and took up investigation.
D .
5. After registering the case, preparing the F.l.R., sending the same, the
superior officers and the Court, the Investigating officer along with staff, went
to the place of the incident and held the necessary mahazars like spot mahazar,
seizure of certain articles found near the scene of offence. After inquest
E proceedings, the body of the deceased was taken for autopsy. In the meantime,
on learning about the culpability of the accused in the crime, several villagers
went in search of the accused. Accused No. I was found at the bus stand
while attempting to board a bus. He was brought and was interrogated. His
disclosure confirmed the involvement of accused No.2 as the co-participant
in the crime; People went in search of the second accused who was found
F hiding in the house. Both of them were brought and kept in confinement in
the house of one Shivamma near the spot. They admitted to their guilt. On
arrival of the investigating officer, after the preliminary investigation as already
noted, the accused were taken into custody and they were sent for medical
examination. The post-mortem examination on the dead body of Shivamma
G was carried out by Dr. Pushpalatha, PW. I I along with Dr. Basavaraju PW.12.
It confirmed rape on the deceased and that she had been killed by strangulation.
The accused were examined by the doctor PW.12 who noted nail scratch
marks on their bodies. Syed Ameer Pasha, (PW.13) a photographer was ~-

summoned and he took photographs of the scene of offence as well as the
dead body. Similarly Siddappa (PW.15), Junior Engineer prepared the sketch
H of the scene of offence as per Ex.P.15. After recording the statements of
SHIVUv. R.G. HIGHCOURTOFKARNATAKA[PASAYAT,J.] 559
_. material witnesses including the relatives and the other villagers who could A
throw light on the incident and after receipt of all material reports, charge
sheet was filed against these two accused for offences punishable under
Sections 376 read with 34 and 302 read with 34 of the !PC.

6. Twenty witnesses were examined to further the prosecution version.
In their examination under Section 313 Cr.P.C. the accused persons except B
denying their involvement did not offer explanation of particular defence. The
trial Court after considering the evidence on record recorded conviction and
?: awarded sentence as aforenoted. Since the death sentence had been awarded
by the trial Court reference was made to the High Court in terms of Section
366 Cr.P.C. for confirmation of the death sentence. The accused-appellants C
also preferred appeal in terms of section 374 (2) Cr.P.C. The circumstances on
which the trial Court placed reliance for recording conviction are as follows:

a. Accused and deceased were last seen together near scene of
offence.
b. The movements of the accused. D
c. The rape and murder of the victim.
·r- d. The immediate apprehension of the accused by the villagers and
their extra judicial confession.
e. Medical evidence in respect of accused indicating resistance put E
forth by the victim and lastly;
( The conduct of the accused prior to and after the crime.

7. Considering the heinous nature of the crime, the trial court held it to
be falling in the rarest of the rare category and awarded death sentence. F
The High Court as noted above confirmed the conviction and the
sentence imposed.

8. In support of the appeal learned counsel for the appellants submitted
that the case is based on circumstantial evidence and the circumstances G
highlighted do not present a complete chain to warrant any inference about
the guilt of the accused. Alternatively, it is submitted that the death sentence
is not warranted.

9. Learned counsel for the appellant-State on the other hand submitted
·H
560 SUPREME COURT REPORTS [2007] 2 S.C.R.

A that the circumstances highlighted clearly establish the guilt of the accused
and no exceptions can be taken to the reasons indicated by the Trial Court
in the well"reasoned judgment. The evidence has also been analysed in great
detail by the High Court and, therefore, no question of any interference is
called for with the conviction recorded. So far as the sentence is concerned
it is pointed out that the accused persons are hardened criminals. They had
B made earlier attempts of rape of two different girls i.e. daughter of PW.7 and
PW.I.

10. PWs. 11 and 12 are the doctors who conducted the autopsy and it (

is PW.12 who has also medically examined the accused and given the wound
C certificat~s.' PW .13 is the photographer who took the photograph of scene of
offence and the dead body. PW .15 is the Junior Engineer who has prepared
the sketch of the scene of offence as per Ex.P.15 and PW.14 is the Village
Accountant.who has furnished the R.T.C. of the lands in question. PWs. 18
and I9 have been examined by the prosecution to show the earlier attempts
of the accused to molest other girls (Lakkamma and Nagarajamma) and their
D participation in the panchayath held by the village elders in that regard.
However, it is to be noted that as they did not support the prosecution, they
have been treated as hostile witnesses and in spite of searching cross-
examination by the prosecution they have stuck to their contrary version. The
remaining witnesses are mahazar witnesses and the members of the
E investigation team.

11. To show the presence of the accused at the time and place almost
near the victim, the prosecution has relied upon the evidence of Puttegowda,
PW.6, Jayamma (PW. I) and two independent witnesses, Kalamma (PW8) and
Rudramma (PW.9). Puttegowda (PW.6) states that on the date of the incident
' taking tea in the morning, he saw the deceased going towards
p while he was
her family land carrying basket of manure. He also saw that these two accused
were following her from a little distance. He states that after some time he also
saw Jayamma (PW. I) the mother of the deceased going towards the land and
coming back raising hue and cry over the murder of her daughter Shivamma
by the accused and her seeing them running away from the spot. The evidence
G of this witness, so far as this aspect is concerned, except the futile suggestion
that this wi,tness is speaking falsehood as he belongs to the group ofNarayana
Gowda and opposed to the accused has remained unshaken.

I2. It has been consistently laid down by this Court that where a case
H rests squarely on circumstantial evidence, the inference of guilt can be justified
., ..

SHIVUv. R.G. HIGHCOURTOFKARNATAKA [PASAYAT,J.] 561

only when all the incriminating facts and circumstances are found to be A
--<..
incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan AIR (1977) SC I063, Eradu
v. State of Hyderabad AIR (1956) SC 3 I 6, Earabhadrappa v. State of
Karnataka AIR (1983) SC 446, State of UP. v. Sukhbasi AIR (1985) SC 1224,
Ba/winder Singh v. Stale of Punjab AIR (1987) SC 350, and Ashok Kumar
Chatterjee v. State ofMP. AIR (I 989) SC I 890. The circumstances from which B
an inference as to the guilt of the accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely connected with the
l. , . principal fact sought to be inferred from those circumstances. In Bhagat Ram
v. State of Pzmjab AIR (1954) SC 621, it was laid down that where the case
depends upon the conclusion drawn from circumstances, the cumulative c
effect of the circumstances must be such as to negative the innocence of the
accused and bring home the offences beyond any reasonable doubt.

13. We may also. make a reference to a decision of this Court in C.
Chenga Reddy v. State of A.P. [1996] IO SCC 193, wherein it has been
observed thus: D

.. "2 I. In a case based on circumstantial evidence, the settled law is that
the circumstances from which the conclusion of guilt is drawn should
> be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should
be no gap left in the chain of evidence. Further, the proved E
circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence."

14. In Padala Veera Reddy v. State ofA.P. AIR (I 990) SC 79, it was laid
down that when a case rests upon circumstantial evidence, such evidence
must satisfy the following tests: F
(
(I) the circumstances from which an inference of guilt is sought to be
drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused; G
(3) the circumstances, taken cumulatively, should form a chain so
J.,
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none
else; and
H
562 SUPREME COURT REPORTS. [2007] 2 S. C.R.

A (4) the circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than
. that of guilt of the accused and such evidence should not only be
consistent with the guilt of the accused but should be inconsistent
with his innocence."

B 15. In State ofU.P. v. Ashok Kumar Srivastava (1992) Cr!. LJ 1104, it was
pointed out that great care must be taken in evaluating circumstantial evidence
and if the evidence relied on is reasonably capable of two inferences, the one
in favour of the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully established and
C the cumulative effect of all the facts so established must be consistent only
with the hypothesis of guilt.

16. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence'
(Chapter VI) Jays down the following rules specially to be observed in the
case of circumstantial evidence: (1) the facts alleged as the basis of any legal
D inference must be clearly proved and beyond reasonable doubt connected
with the factum probandum; (2) the burden of proof is always on the party
who asserts the existence of any fact, which infers legal accountability; (3)
in all cases, whether of direct or circumstantial evidence the best evidence
must be ad.duced which the nature of the case admits; (4) in order to justify
the inference of guilt, the inculpatory facts must be incompatible with the
E innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt; and (5) ifthere be any reasonable
doubt of the guilt of the accused, he is entitled as of right to be acquitted.

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

18 ..In Hanumant Govind Nargundkar v. State of M.P. AIR (1952) SC
343, it was observed thus:
G "It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should be in the first instance be fully established, .J<
and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances
H
SHIVU v. R.G. HIGH COURT OF KARNA TAKA [PASA YAT, J.] 563
. ._
(,

'
should be of a conclusive nature and tendency and they should be A
such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be such as
to show that within all human probability the act must have been done
by the accused." B

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

(I) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned must D
or should and not may be established;
A

(2) the facts so established should be consistent only with the
:>-
hypothesis of the guilt of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused is
guilty; E
(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to
be proved; and

(5) there must be a chain of evidence so complete as not to leave any F
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused.

20. When the evidence on record is analysed in the background of
principles highlighted above, the inevitable conclusion is that the prosecution G
has established its accusations.

21. The residual question relates to sentence. In Bachan Singh v. State
of Punjab [1980] 2 SCC 684, and Machhi Singh and Ors. v. State of Punjab
[1983) 3 sec 470, the guidelines which are to be kept in view when considering H
564 SUPREME COURT REPORTS [2007] 2 S. C.R.

A the question whether the case belongs to the rarest of the rare category for
awarding death sentence were indicated.

22. In Machhi Singh 's case (supra) it was observed:

"The following questions may be asked and answered as a test
B to determine the "rarest of the rare" case in which death sentence can
be inflicted:-

(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence?
c (b )' Are the circumstances of the crime such that there is no
alternative but to impose death sentence i.:ven after according maximum
weightage to the mitigating circumstances which speak in favour of
the offender?

The following guidelines which emerge from Bachan Singh case
D
(supra) will have to be applied to the facts of each individual case
where the question of imposition of death sentence arises: (SCC p.
489, para 38):-

(i) The extreme penalty of death need not be inflicted except in
E gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the
'offender' also require to be taken into consideration along with the
circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception.
F Death sentence must be imposed only when life imprisonment appears
to be an altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only provided,
the option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and
G circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances have -'--
to be accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances before the
H
SHIVUv. R.G.HIGH COURT OF KARNATAKA[PASAYAT,J.] 565
,,'·- option is exercised. A
-..
'* In rarest of rare cases when collective conscience of the community
is so shocked that it will expect the holders of the judicial power
centre to inflict death penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death penalty, death
sentence can be awarded. The community may entertain such sentiment B
in the following circumstances:

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

(2) When the murder is committed for a motive which evinces total
c
depravity and meanness; e.g. murder by hired assassin for money or
reward or a cold-blooded murder for gains of a person vis-a-vis whom
the murderer is in a dominating position or in a position of trust, or
murder is committed in the course fo1 betrayal of the motherland.
D
(3) When murder of a member of a Scheduled Caste or minority
., community etc., is committed not for personal reasons but in
circumstances which arouse social wrath, or in cases of 'bride burning'
\-
or dowry deaths' or when murder is committed in order to remarry for
the sake of extracting dowry once again or to marry another woman
on account of infatuation . E
• (4) When the crime is enormous in proportion. For instance when
multiple murders, say of all or almost all the members of a family or
<.., a large number of persons of a particular caste, community, or locality,
are committed.
,. F
(5) When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis-a-vis whom the murderer
is in a dominating position or a public figure generally loved and
respected by the community.

If upon taking an overall global view of all the circumstances in G
the light of the aforesaid propositions and taking into account the
answers to the questions posed by way of the test for the rarest of
rare cases, the circumstances of the case are such that <lea.th sentence
is warranted, the court would proceed to do so."
H
[
566 SUPREME COURT REPORTS [2007) 2 S.C.R.

A 23. A convict hovers between life and death when the question of
gravity of the offence and award of adequate sentence comes up for
consideration. Mankind has shifted from the state of nature towards a civilized
society and it is no longer the physical opinion of the majority that takes
away the liberty of a citizen by convicting him and making him suffer a
sentence of imprisonment. Award of punishment following conviction at a
B trial in a system wedded to the rule of law is the outcome of cool deliberation
in the court room after adequate hearing is afforded to the parties, accusations
are brought against the accused, the prosecuted is given an opportunity of
meeting the accusations by establishing his innocence. It is the outcome of
cool deliberations and the screening of the material by the informed man i.e.
C the Judge that leads to determination of the !is.

24. The principle of proportion between crime and punishment is a
principle of just desert that serves as the foundation of every criminal sentence
that is justifiable. As a principle of criminal justice it is hardly less familiar or·
less important than the principle that only the guilty ought to be punished.
D Indeed, the requirement that punishment not be disproportionately great,
which is a corollary of just desert, is dictated by the same principle that does
not allow punishment of the innocent, for any punishment in excess of what
is deserved for the criminal conduct is punishment without guilt.

25. The criminal law adheres in general to the principle of proportionality
E in prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at ~ sentence in each case, presumably to permit sentences that
reflect more .subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment ought always
p to fit the crime; yet in practice sentences are determined largely by other .,.
considerations. Sometimes it is the correctional needs of the perpetrator that
are offered to justify a sentence, sometimes .the desirability of keeping him out
of circulation, and sometimes even the tragic results of his crime. Inevitably
these considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and
G widespread.

26. Proportion between crime· and punishment is a goal respected in
principle, and in spite of errant notions, it remains a strong influence in the
determination of sentences. Anything less than a penalty 'of greatest severity

H
SHIVUv. R.G.HIGHCOURTOFKARNATAKA [PASAYAT,J.] 567
for any serious crime is thought to be a measure of toleration that is A
unwarranted and unwise. But in fact quite apart from those considerations
that make punishment unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very undesirable practical
consequences.

27. Considering the view expressed by this Court in Bachan Singh 's B
case (supra) and Machhi Singh 's case (supra) we have no hesitation in
holding that the case at hand falls in rarest of rare category and death
y· sentence awarded by the trial Court and confirmed by the High Court was
f' appropriate.

28. The appeal is dismissed. c
B.S. Appeal dismissed.