Holding

When circumstantial evidence forms a complete, unbroken chain that excludes any reasonable hypothesis of innocence, conviction is justified and the High Court's acquittal was erroneous.

Summary

The State of Uttar Pradesh prosecuted Satish for the rape and murder of a six‑year‑old girl, relying on circumstantial evidence that the accused was last seen carrying the victim on a bicycle and on the recovery of both parties' undergarments. The trial court convicted Satish under sections 302, 376(2), 363, 366 and 201 of the IPC and imposed the death penalty, which was confirmed by the High Court. The High Court later acquitted him, holding that the circumstantial evidence did not inspire confidence, particularly because of delayed witness examination and the omission of the accused's name from the FIR. On appeal, the Supreme Court held that the chain of circumstantial evidence was complete, the witnesses' testimonies were reliable, and the delayed examination was not fatal to the prosecution's case; consequently, the High Court’s acquittal was erroneous. The Court restored the trial court’s conviction and death sentence, finding the case fell within the "rarest of rare" category.

Issues considered

Whether the circumstantial evidence presented was sufficient to convict the accused of rape and murder.
Whether the delayed examination of witnesses undermines the reliability of the circumstantial evidence.
Whether the High Court erred in acquitting the accused on the basis of lack of confidence in the evidence.
Whether the death sentence is justified under the "rarest of rare" doctrine.

Legislation cited

Code of Criminal Procedure, 1973s. 366
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 201, s. 302, s. 363, s. 366, s. 376(2)

Subjects

circumstantial evidencerapemurderdeath penaltyrarest of rareacquittalconvictionIndian Penal CodeIndian Evidence Actproportionalitylast seen theorydelayed witness examinationappellate review

Judgment

A STATE OF U.P.
v.
SA TISH

FEBRUARY 8, 2005

B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.]

Penal Code-Sections 302 and 376-Rape followed by murder-
Conviction by trial Court on circumstantial evidence i.e. accused last seen
C with deceased and recovery of undergarments of accused and deceased-
High Court ordering acquittal holding that circumstances not inspiring
confidence-On appeal, held: High Court erred in ordering acquittal-Chain
of evidence on record is complete as to show that crime was committed by the
accused-Deposition of witnesses showed that deceased and accused were
last seen together-High Court drew an adverse inference without indicating
D any reason and hence not sustainable.

Principle of Just desert-Proportion between crime and punishment-
The criminal law adheres to the principle of proportionality in prescribing
liability according to the culpability of each ~ind of criminal conduct.

E Circumstantial evidence-last seen theory-Discussed.

Sentencing-Considerations for awarding sentence-Discussed.

Accused was prosecuted for rape and murder of six year old girl.
According to prosecution PW-3 and PW-5 had seen accused carrying the
F deceased on a bicycle on the date of occurrence, near the place from where
the dead body of deceased was found. During investigation, undergarments
of deceased and accused were recovered. Trial Court convicted him under
section 363, 366, 376(2), 302 & 201 IPC and sentenced him to death. High
Court set aside the conviction holding that the case rested on
G circumstantial evidence and the circumstances highlighted by the
prosecution did not inspire confidence.

In appeal to this Court, State contended that the evidence of PWs 2,
3 and 5 clearly established the circumstances pointing the accusing finger
at the accused; that no question was put to the IO (PW-8) regarding
H 1132
STATE OF U.P. v. SA TISH 1133
alleged delayed examination and the explanation was given for non A
inclusion of the name of the accused in the FIR by PW-I and without
indicating any reason, the High Court had treated the same to be
unacceptable.

The accused-respondent contended that the evidence tendered by the
prosecution is not sufficient to prove unerringly that the accused was B
responsible for the crime; and that the case being one, which rests on
circumstantial evidence, the view taken by the High Court is a possible
view and, therefore, this court should not interfere.

Allowing the appea!s, the Court
c
HELD: 1. When a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the incriminating facts
and circumstances are found to be incompatible with the innocence of the
accused or the guilt of any other person. The circumstances from which
an inference as to the guilt of the accused is drawn have to be proved D
beyond reasonable doubt and have to be shown to be closely connected
t with the principal fact sought to be inferred from those circumstances.
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. In the instant case, on analysis of the evidence on record,
the inevitable conclusion is that the prosecution has established its E
accusations. [1138-C-D; 1140-D; 1141-A)

Hukam Singh v. State ofRajasthan, AIR (1977) SC 1063; Eradu v. State
of Hyderabad. AIR (1956) SC 316; Earabhadrappa v. State of Karnataka
AIR (1983) SC 446; State of U.P. v. Sukhbasi, AIR (1985) SC 1224;
-,.. Ba/winder Singh v. State of Punjab, AIR (1987) SC 350; Ashok Kumar F
Chatterjee v. State of MP., AIR (1989) SC 1890 and Hanumant Govind
Nargundkar v. State of MP., AIR (1952) SC 343, relied on.

Bhagat Ram v. State of Punjab, AIR (1954) SC 621; C. Chenga Reddy
v. State of A.P.. [1996) 10 SCC 193; State of UP. v. Ashok Kumar Srivastava,
(1992) Crl. LJ 1104 and Pada/a Veera Reddy v. State of A.P., AIR (1990) G
SC 79, r~ferred to.
)

Will's Circumstantial Evidence '(Chapter VI), referred to

2.1. It cannot be laid down as a rule of universal application that if
there is any delay in examination of a particular witness the prosecution H
1134 SUPREME COURT REPORTS [2005] I S.C.R.

A version becomes suspect. It would depend upon several factors. If the
explanation offered for the delayed examination is plausible and acceptable
and the court accepts the same as plausible, there is no reason to interfere
with the conclusion. On the other hand, if the explanation is found to be
implausible, the Court can consider it to be one of the factors to affect
B credibility of the witnesses who were examined belatedly. 11141-C, F)

2.2. In the instant case, the 1.0. (PW-8) was never asked the reason
for delayed examination of PWs. 3 and 5. The cross-examination was only
on the aspect of the recovery of the underwear and undergarment of the
accused and the deceased respectively. Further, there was no suggestion
C to either PW-3 or PW-5 that in fact they had not seen the accused and
deceased together. Even no question was asked about that aspect in cross-
examination. The last seen theory comes into play where the time-gap
between the point of time when the accused and the deceased were seen
last alive and when the deceased is found dead is so small that possibility
of any person other than the accused being the author of the crime
D becomes impossible. It would be difficult to positively establish, when there
is a long gap and possibility of other persons coming in between exists. In
this case there is positive evidence that the deceased and the accused were
seen together by witnesses PWs. 3 and 5, in addition to the evidence of
PW-2. The reason as to why accused's name did not find place in the FIR
E was explained by the informant when he was recalled. The High Court
drew an adverse inference without indicating any reason. The High
Court's order being untenable and unsustainable is liable to be set aside.
(1142-B; 1141-G; 1142-C, D, E)

Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409; Bodhraj@
p Bodha and Ors. v. State ofJammu and Kashmir, 12002) 8 SCC 45 and Banti
@ Guddu v. State of MP., (20041 l SCC 414, relied on.

Ganesh Bhavan Patel and Anr. v. State of Maharashtra, [1978) 4 SCC
371, referred to.

G 3.1. There is no embargo on the appellate court reviewing the
evidence upon which an order of acquittal is based. Generally, the order
of acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. If two views
are possible on the evidence adduced in a criminal case, one pointing to
the guilt of the accused and the other to his innocence, the view which is
H favourable to the accused should be adopted. The Court is to ensure that
STATEOFU.P.v. SATISH 1135
miscarriage of justice is prevented. A miscarriage of justice which may A
arise from acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is cast
upon the appellate Court to re-appreciate the evidence where the accused
has been acquitted, for the purpose of ascertaining as to whether any of
the accused really committed any offence or not. If the impugned judgment B
is clearly unreasonable and relevant and convincing materials have been
unjustifiably eliminated in the process, it is a con:pelling reason for
interference. (1142-F, G-H; 1143-AJ

Bhagwan Singh and Ors. v. State of Madhya Pradesh, relied on.

Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra, AIR (1973) C
SC 2622; Ramesh Babula/ Doshi v. State of Gujarat, (1996) 4 Supreme 167;
Jaswant Singh v. State of Haryana, (2000) 3 Supreme 320; Raj Kishore Jha
v. State of Bihar and Ors., (2003) 7 Supreme 152; State of Punjab v. Kamai/
Singh, (2003) 5 Supreme 508 and State of Punjab v. Pohla Singh and Anr.,
(2003) 7 Supreme 17, referred to. D
3.2. Proportion between crime and punishment is a goal respected
in principle, and in spite of errant notions, it remains a strong influence
in the determination of sentences. Anything less than a penalty of greatest
severity for any serious crime is thought to be a measure of toleration that
is unwarranted and unwise. But in fact quite apart from those E
considerations that make punishment unjustifiable when it is out of
proportion to the crime, uniformly disproportionate punishment has some
very undesirable practical consequences. The case at hand falls in rarest
of rare category and death sentence awarded by the trial court was
appropriate. [1146-C, DI p

Bachan §ingh v. State ofPunjab, [1980) 2 SCC 684 and Machhi Singh
and Ors. v. State of Punjab, [1983[ 3 SCC 470, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 256-
257 of 2005.
G
From the Judgment and Order dated 14. I 0.2003 of the Allahabad High
Court in Crl. A. No. 299/2002 with Capital Sentence Reference No. 3 of
2002.

Pramod Swarup, Prashant Chaudhary and Praveen Swarup for the H
1136 SUPREME COURT REPORTS (2005) I S.C.R.

A Appellant.
Vijay Hansaria, Ms. Sunita Bhardwaj, Draupad Kashyap Das, Satyendra
Kumar, Ranbir Singh Yadav and H.M. Singh for the Respondent.

The Judgment of the Court was delivered by
B
ARIJIT PASAYAT, J. Leave granted.

One Vishakha @ Akansha (hereinafter referred to as the 'victim') who
had not even seen six summers in her life lost her life on account of bestial
acts of the respondent Satish (hereinafter referred to as the 'accused') who
C allegedly raped her and thereafter murdered her. When the victim went cut
to school on 16.8.2001, her parents would have never thought in their widest
dreams that she would not come back home and would fall victim to the
barbaric and inhuman acts of the respondent. Rape is one of the most depraved
acts. The iniquitous flagitious act becomes abonimal when the victim is a
D child. The diabolic act reaches the lowest level of humanity when the rape
is followed by brutal murder.
i ·'
In a nutshell the accused faced trial in the following backdrop.

On 16.8.200 I the victim who was studying in Sarvodya Public School
had gone to school and did not return at the usual time. On the next day
E morning her dead body was found in the Sugarcane field of one Moolchand
around 6.00 a.m. She was lying in a dead condition and blood was oozing
from her private parts and there were marks of pressing on her neck. Report
was lodged at the nearly Police Station and the dead body was sent for post
mortem examination Dr. R.K. Gupta (PW-7) conducted the post mortem
F around 2.00 p.m. on 17.8.2001 and opined that death was within the preceding
24 hours.

Three persons claimed to have seen the accused nearby the place of
occurrence between 1.00 p.m. to 2.00 p.m. on the date of occurrence. Two
of them, namely, Sanjeev Kumar Tyagi (PW-3) and Kulbhushan (PW-5) '
G claimed to have seen the deceased being carried on a bicycle by the accused
who was taking the bicycle with the deceased sitting on the handle thereof.
Anil (PW-2) stated that he had seen the accused in perplexed state around
2.00 p.m. near the place from where the dead body of deceased was found.
Investigation was undertaken. During such investigation, there was recovery
H of accused's underwear as also the undergarment the deceased was wearing.
STATE OF U.P. v. SA TISH [PASAYAT. J.] 1137
This recovery was treated to be under Section 27 of the Indian Evidence Act, A
. 1872 (in short the 'Evidence Act') .

The trial Court found that the circumstances highlighted by the
prosecution were sufficient to fasten guilt on the accused. She, therefore,
convicted him under Section 363, 366, 376(2), 302 and 20 I of the Indian
Penal Code, 1860 (in short the 'IPC'). The crime was held to be one falling B
under rareset of rare category. Death sentence was imposed for the offence
under Section 302 IPC. Various custodial sentences and fines were imposed
for other offences. Since a death sentence was awarded the matter was referred
to the High Court for confirmation in terms of Section 366 of Code of
Criminal Procedure, 1973 (in short the 'Code'). The accused preferred an C
appeal before the High Court. Both the capital sentence reference and the
criminal appeal were heard together. By the impugned judgment the High
Court set aside the judgment of conviction. It was held that the case rested
on circumstantial evidence and the circumstances highlighted by the
prosecution did not inspire confidence. Three circumstances were highlighted
by the High Court to arrive at the aforesaid conclusions. Firstly, was held that D
examination of PWs. 3 and 5 after long passage of time rendered their version
unacceptable and improbable. The prosecution did not offer any explanation
for such delayed examination. Secondly, in the FIR name of the accused was
not indicated. Thirdly, presence of the accused nearby the place from where
the dead body was recovered, as deposed by PW-2, may be a suspicious E
circumstance but was not determinative. Accordingly, it was held that
prosecution had failed to prove its accusations.

In support of the appeals, learned counsel for the State submitted that
the approach of the High Court is clearly erroneous both on legal and factual
aspects. No question was put to the Investigating Officer (PW-8) regarding F
alleged delayed examination. Further the evidence of PWs 2, 3 and 5 clearly
established the circumstances which unerringly point the accusing finger at
the accused. Additionally, explanation was given for non inclusion of the
name of the accused in the FIR by PW-I and without indiyating any reason
the High Court had treated the same to be unacceptable.
G
It is relevant to point out that during trial no question was raised about
the delayed examination and not even a plea was raised before the trial Court
that the delayed examination of PWs 3 and 5 affected credibility of the
prosecution version.
H
1138 SUPREME COURT REPORTS [2005] I S.C.R.

A In response, learned counsel for the accused-respondent submitted that
the High Court by a well reasoned judgment has found the prosecution version •
to be unreliable. That being so, this Court should not interfere with the order
of acquittal. Further, the evidence tendered by the prosecution is not sufficient
to prove unerringly that the accused was responsible for the crime. The case
B being one which rests on circumstantial evidence, the view taken by the
High Court is a possible view and, therefore, this Court should not interfere.

It has been consistently laid down by this Court that where a case rests
squarely on circumstantial evidence, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found to be
C incompatible with the innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063, Eradu
v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of
Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi, AIR (1985) SC
1224, Ba/winder Singh v. State of Punjab, AIR (1987) SC 350 and Ashok
Kumar Chatterjee v. State of M.P., AIR (1989) SC 1890). The circumstances
D from which an inference as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be shown to be closely connected
with the principal fact sought to be inferred from those circumstances. In
Bhagat Ram v. State of Punjab, AIR (1954) SC 621 it was laid down that
where the case depends upon the conclusion drawn from circumstances the
E cumulative effect of the circumstances must be such as to negative the
innocence of the accused and bring home the offences beyond any reasonable
doubt.

We may also make reference to a decision of this Court in C. Chenga
Reddy v. State of A.P., [1996] 10 SCC 193, wherein it has been observed
p thus:
"21. In a case based on circumstantial evidence, the settled law is that
the circumstances from which the conclusion of guilt is drawn should
be fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should
G be no gap left in the chain of evidence. Further, the proved
circumstances must be consistent only with the hypothesis of the
guilt of the accused and totally inconsistent with his innocence."

In Padala Veera Reddy v. State of A.P.. AIR (1990) SC 79 it was laid
down that when a case rests upon circumstantial evidence, such evidence
H
STATE OF U.P. v. SA TISH [PASAYAT, J.] I 139
;.. must satisfy the following tests: A
( 1) The circumstances from which an inference of guilt is sought to
be drawn, must be cogently and firmly established;
•
~ (2) Those circumstances should be of a definite tendency unerringly
pointing towards guilt of the accused; B
(3) The circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none
else; and

(4) The circumstantial evidence in order to sustain conviction must c
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 guilty of the accused but should be inconsistent
with his innocence.
D
In State of UP. v. Ashok Kumar Srivastava, (1992) Crl LJ 1104 it was
. pointed out that great care must be taken in evaluating circumstantial evidence
' anil if the evidence relied on is reasonably capable of two inferences, the one
in favour of the accused must be accepted. It was also pointed out that the
circumstances relied upon must be found to have been fully established and
the cumulative effect of all the facts so established must be consistent only E
with the hypothesis of guilt.

Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence'
(Chapter VI) lays down the following rules specially to be observed in the
case of circumstantial evidence: (I) the facts alleged as the basis of any_ legal

- '"-
inference must be clearly proved and beyond reasonable doubt connected
with the factum probandum; (2) the burden of proof is always on the party
who asserts the existence of any fact, which infers legal accountability; (3)
F

in all cases, whether of direct of circumstantial evidence the best evidence
must be adduced which the nature of the case admits; (4) in order to justify
the inference of guilt, the inculpatory facts must be incompatible with the G
innocence of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt; and (5) if there be any reasonable
" doubt of the guilt of the accused, he is entitled as of right to be acquitted.

There is no doubt that conviction can be based solely on circumstantial
evidence but it should be tested by the touchstone of law relating to H
1140 SUPREME COURT REPORTS [2005) I S.C.R.

A circumstantial evidence laid down by this Court as far back in 1952.
In Hanumant Govind Nargundkar v. State of M.P., AIR (1952) SC 343
it was observed thus;

"It is well to remember that in case where the evidence is of a
B circumstantial nautre, the circumstances from which the conclusion
of guilt is to be drawn should be in the first instance be fully
established, and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one
c 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."
D A reference may be made to a later decision in Sharqd. Birdhichand
Sarda v. State of Maharashtra, AIR (1994) 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 infinnity of lacuna in
the prosecution cannot be cured by a false defence or plea. The conditions
E precedent in the words of this Court, before conviction could be based on
circumstantial evidence must be fully established. They are:

(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned must
or should and not may be established;
F
(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 1he accused is
guilty;

G (3) The circumstances should be of a conclusive nature and tendency;

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

(5) There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the-innocence
H
STA TE OF U.P. v. SA TISH [PASA YAT. J.] 1141
of the accused and must show that in all human probability the act A
must have been done by the accused.

When th7 evidence on record is analysed in the background of principles
highlighted above, the inevitable conclusion is that the prosecution has
established its accusations.
B
As regards delayed examination of certain witnesses, this Court in several
decisions has held that unless the Investigating officer is categorcially asked
as to why there was delay in examination for the witnesses the defence
cannot gain any advantage therefrom. It cannot be laid down as a rule of
universal application that it there is any delay in examination of a particular
witness the prosecution version become suspect. Jt would depend upon several C
factors. If the explanation offered for the dJl(yed examination is plausible
and acceptable and the court accepts the same as plausible, there is no reason
to interfere with the conclusion [See Ranbfr and Ors. v. State of Punjab, AIR
(1973) SC 1409, Bodhraj@Rodha and Ors. v. State ofJammu and Kashmir,
[2002] 8 SCC 45 and Banti@ Guddu v. State of MP., [2004] I SCC 414.] D

; The High Court has placed reliance on a decision of this Court in
Ganesh Bhayan Patel.and Anr. v. State of Maharashtra, (1978] 4 SCC 371.
A bare reading of the fact situation of that case shows that the delayed
examination by 1.0. was not the only factor which was considered to be
detenninative. On the contrary it was held that there were catena of factors E
which when taken together with the delayed examination provided basis for
acquittal.

It is to be noted that the explanation when offered by 1.0. on being
questioned on the aspect of delayed examination, by the accused has to be
tested by the Court on the touchstone of credibility. If the explanation is F
plausible then no advers~ inference can be drawn. On the other hand, if the
explanation is found to be implausible, certainly the Court can consider it to
be one of the factors to affect credibility of the witnesses who were examined
belatedly. It may not have any effect on the credibility of prosecution's
evidence tendered by the other witnesses. G
One significant factor which seems to. have missed by the High Court
is that there was no suggestion to either PW-3 or PW-5 that in fact they had
not seen the accused and deceased together. Even no question was asked
about that aspect in cross-examination. On the contrary, an irrelevant
suggestion was given that though the witness and seen them together, the H
1142 SUPREME COURT REPORTS [2005) I S.C.R.

A witness had not asked the accused as to why he was walking while carrying
the deceased on the bicycle. That being so, the High Court could not have
come to the conclusion that there was no credible evidence of the accused
and the deceased being seen together by PWs 3 and 5. As noted above, the
1.0. (PW-8) was never asked the reason for delayed examination of PWs 3
B and 5. The cross examination was only on the aspect of th1! recovery of the
underwear and undergarment of the accused and the dece2.sed respectively.

The last seen theory comes into play where the time ..gap between the
point of time when the accused and the deceased were seen last alive and
when the deceased is found dead is so small that possibility of any person
C other than the accused being the author of the crime becomes impossible. It
would be difficult in some cases to positively establish that the deceased was
last seen with the accused when there is a long gap and possibility of other
persons coming in between exists. In the absence of any other positive evidence
to conclude that the accused and the deceased were last seen together, it
would be hazardous to come to a conclusion. of guilt in those cases. In this
D case there is positive evidence that the deceased and the accused were seen
together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.

The reason as to why accused's name did not find place in the FIR was
explained by the informant when he was recalled. The High Court drew an
adverse inference without indicating any reason therefore. Looked at from
E above angle, the High Court's order is clearly untenable and unsustainable
and deserves to be set aside, which we direct.

There is no embargo on the appellate Court reviewing the evidence
upon which an order of acquittal is based. Generally, the order of acquittal
F shall not be interfered with because the presumption of innocence of the
accused is further strengthened by acquittal. The golden thread which runs
through the web of administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the· view which is
favourable to the accused should be adopted. The paramount consideration of ~·

G the Court is to ensure that miscarriage of justice is prevented. A miscarriage
of justice which may arise from acquittal of the guilty is no less than from
the conviction of an innocent. In a case where admissible evidence is ignored,
a duty is cast ,upon the appellate Court to re-appreciate the evidence where
the accused has been acquitted, for the purpose of ascertaining as to whether
H any of the accused really committed any offence or not. [St:e Bhagwan Singh
STATE OF U.P. v. SA TISH (PASAY AT. J.) 1143
and Ors. v. State of Madhya Pradesh, (2002) 2 Supreme 567]. The principle A
to be followed by appellate Court considering the appeal against the judgment
of acquittal is to interfere only when there are compelling and substantial
reasons for doing so. If the impugned judgment is clearly unreasonable and
relevant and convincing materials have been unjustifiably eliminated in the
process, it is a compelling reason for interference. These aspects were
highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of B
Maharashtra, AIR (1973) SC 2622, Ramesh Babula/ Doshi v. State of Gujarat,
(1996) 4 Supreme 167, Jaswant Singh v. State of Haryana, (2000) 3 Supreme
320, Raj Kishore Jha v. State of Bihar and Ors., (2003) 7 Supreme 152. State
of Punjab v. Kamai/ Singh, (2003) 5 Supreme 508 and State of Punjab v.
Pohla Singh and Anr., (2003) 7 Supreme 17. C
In Bachan Singh v. State of Punjab, [1980] 3 SCC 684 and Machhi
Singh and Ors. v. State of Punjab, [1983] 3 SCC 470 the guidelines which
are to be kept in view when considering the question whether the case belongs
to the rarest of the rare category for awarding death sentence were indicated.
D
In Machhi Singh 's case supra it was observed:

"The following questions may be asked and answered as a test to
determine the "rarest of the rare" case in which death sentence can
be inflicted:-
E
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentences?

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

The following guidelines which emerge from Bachan Singh case
(supra) will have to be applied to the facts of each individual case
where the question of imposition of death sentence arises: (SCC p. G
489, para 38):-
... (i) The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the H
1144 SUPREME COURT REPORTS [2J05] I S.C.R.

A 'offender' also require to be taken into consideration along with the
circumstances of the 'crime'.

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

(iv) A balance sheet of aggravating and mitigating circumstances
C has to be drawn up and in doing so the mitigating circumstances have
to be accorded full weightage and a just balance has to be struck
between the aggravating and the mitigating circumstances before the
option is exercised.

In rarest ofrare cases when collective conscience of the community
D 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 comlJlunity may entertah such sentiment
in the following circumstances :
E (I) When the murder is committed in an extremely brutal, grotesque,
disbolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total
depravity and meanness; e.g. murder by hired assassin for money or
F reward or a cold-blooded murder for gains of a person vis-a-vis whom
the murderer is in a dominating position or in a position of trust, or
murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority
community etc., is committed not for personal reasons but in
G circumstances which arouse social wrath, or in cases of 'bride burning'
or 'dowry deaths' or when murder is committed in order to remarry
for the sake of extracting dowry once again or to marry another
woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when
H
\

STATE OF U.P. v. SA TISH [PASAYAT . .I.) 1145
multiple murders, say of all or almost all the members of a family or A
a large number of persons of a particular caste, community, or locality,
are committed.

(5) When the victim of murder is an innocent child, or a helpless
woman or old or infirm person or a person vis-a-vis whom the murderer
is in dominating position or a public figure generally loved and B
respected by the community.

If upon taking an overall global view of all the circumstances in
the light of the aforesaid proposition and taking into account the
answers to the questions posed by way of the test for the rarest of rare
cases, the circumstances of the case are such that death sentence is C
warranted, the court would proceed to do so."

A convict hovers between life and death when the question of gravity
of the offence and award of adequate sentence comes up for consideration.
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 D
of a citizen by convicting him and making him suffer a sentence of
imprisonment. Award of punishment following conviction at a trial in a system
wedded to the rule of law is the outcome of cool deliberation in the court
room after adequate hearing is afforded to the parties, accusations are brought
against the accused, the prosecuted is given an opportunity of meeting the E
accusations by establishing his innocence. It is the outcome of cool
deliberations and the screening of the material by the informed man i.e. the
judge that leads to determination of the !is.

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

. The criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the judge in arriving
at a sentence in each cases, presumably to permit sentences that reflect more H
I

1146 SUPREME COURT REPORTS [2005] I S.C.R.

A subtle considerations of culpability that are raised by the special facts of each
case. Judges in essence affirm that punishment ought always to fit the crime;
yet in practice sentences are detennined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to
justify a sentence. Sometimes the desirability of keeping him out of circulation,
and sometimes even the tragic results of his crime. Inevitably these
B considerations cause a departure from just desert as the basis of punishment
and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in
principle, and in spite of errant notions, it remains a strong in-tluence in the
C detennination of sentences. Anything less than a penalty of greatest severity
for any serious crime is thought to be a measure of toleration that is
unwarranted and unwise. But in fact quite apart from those considerations
that make punishment unjustifiable when it is out of proportior1 to the crime,
unifonn iy disproportionate punishment has some very undesirable. practical
consequences.
D
Considering the view expressed by this Court in Bachan Singh 's case
(supra) and Machhi Singh 's case (supra) we have no hesitation in holding
that the case at hand falls in rarest of rare category and death sentence
awarded by the trial Court was appropriate. The acquittal of the respondent-
accused is clearly unsustainable and is set aside. In the ultimate result, the
E judgment of the High Court is set aside and that of the trial Court is restored.
The appeals are allowed.

D.G. Appeals allowed.