# RAJENDRA PRALHADRAO WASNIK v. STATE OF MAHARASHTRA

- **Citation:** [2018] 14 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 2018-12-12
- **Case number:** Criminal Appeal Nos. 145-146 of 2011
- **Bench:** Madan B. Lokur, S. Abdul Nazeer, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajendra-pralhadrao-wasnik-v-state-of-maharashtra-32679
- **Pages:** 42

## Headnote

Administration of Criminal Justice - Capital Punishment -
Factors to be considered - Appellant convicted for the rape and
murder of a 3 year old girl - Conviction as also capital punishment
awarded to the appellant was confirmed by the High Court - Appeals
filed by the appellant before Supreme Court - Dismissed - Review
Petitions also dismissed - However, review petitions restored in
view of Constitution Bench decision of Supreme Court in Mohd.
Arif alias Ashfaq case - Held: Ordinarily, it would not be advisable
to award capital punishment in a case of circumstantial evidence -
But there is no hard and fast rule that death sentence should not be
awarded in a case of circumstantial evidence - If the court has
some doubt, on the circumstantial evidence on record, that the
accused might not have committed the offence, then a case for
acquittal would be made out - If the court is inclined to award the
death penalty then there must be some exceptional circumstances
warranting the imposition of the extreme penalty - In the instant
case, samples were taken from the body of the accused and sent for
DNA profiling, however, the result was not produced before the trial
court - There is no explanation for this - In the absence of any
justification for not producing the DNA evidence, it would be
dangerous, on the facts of this case, to uphold the sentence of death
of the appellant - Further, probability (not possibility or
improbability or impossibility) that a convict can be reformed and
rehabilitated in society must be seriously considered by the courts
before awarding the death sentence - It is the obligation on the
prosecution to prove, through evidence, that the probability is that
[2018] 14 S.C.R. 585
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the convict cannot be reformed or rehabilitated - For the purposes
of sentencing, the Sessions Judge, the High Court as well as Supreme
Court did not take into consideration the probability of reformation,
rehabilitation and social re-integration of the appellant into society
- Further, trial court was also in error in taking into consideration,
for the purposes of sentencing, the pendency of two similar cases
against the appellant which it could not, in law, consider - However,
looking to the crimes committed by the appellant and the material
on record including his overall personality and subsequent events,
the sentence of death awarded to the appellant is commuted but the
appellant should not be released from custody for the rest of his
normal life - Penal Code, 1860- ss.376(2)(f), 377 and 302Evidence Act, 1872 - s.54 - CrPC, 1973 - s.354.
Evidence - DNA - Forensic science - Importance of - Held:
DNA profiling is an extremely accurate way of comparing specimens
and such testing can make a virtually positive identification - Where
DNA profiling has not been done or it is held back from the Trial
Court, an adverse consequence would follow for the prosecution -
Cr.P.C., 1973 - ss.53-A, 164-A.
Sentence/Sentencing - Prior history of the convict or criminal
antecedents - If to be considered - Held: Mere pendency of one or
more criminal cases against a convict cannot be a factor for
consideration while awarding a sentence - Not only is it statutorily
impermissible (except in some cases) but even otherwise it violates
the fundamental presumption of innocence - a human right - that
everyone is entitled to.
Disposing of the review petitions, the Court
HELD: 1.1 Ordinarily, it would not be advisable to award
capital punishment in a case of circumstantial evidence. But there
is no hard and fast rule that death sentence should not be awarded
in a case of circumstantial evidence. The precautions that must
be taken by all the courts in cases of circumstantial evidence is
this: if the court has some doubt, on the circumstantial evidence
on record, that the accused might not have committed the offence,
then a case for acquittal would be made out; if the cou

## Text

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RAJENDRA PRALHADRAO WASNIK
v.
STATE OF MAHARASHTRA
(Review Petition (Criminal) Nos. 306-307 of 2013)
in
(Criminal Appeal Nos. 145-146 of 2011)
DECEMBER 12, 2018
[MADAN B. LOKUR, S. ABDUL NAZEER AND
DEEPAK GUPTA, JJ.]
Administration of Criminal Justice - Capital Punishment -
Factors to be considered - Appellant convicted for the rape and
murder of a 3 year old girl - Conviction as also capital punishment
awarded to the appellant was confirmed by the High Court - Appeals
filed by the appellant before Supreme Court - Dismissed - Review
Petitions also dismissed - However, review petitions restored in
view of Constitution Bench decision of Supreme Court in Mohd.
Arif alias Ashfaq case - Held: Ordinarily, it would not be advisable
to award capital punishment in a case of circumstantial evidence -
But there is no hard and fast rule that death sentence should not be
awarded in a case of circumstantial evidence - If the court has
some doubt, on the circumstantial evidence on record, that the
accused might not have committed the offence, then a case for
acquittal would be made out - If the court is inclined to award the
death penalty then there must be some exceptional circumstances
warranting the imposition of the extreme penalty - In the instant
case, samples were taken from the body of the accused and sent for
DNA profiling, however, the result was not produced before the trial
court - There is no explanation for this - In the absence of any
justification for not producing the DNA evidence, it would be
dangerous, on the facts of this case, to uphold the sentence of death
of the appellant - Further, probability (not possibility or
improbability or impossibility) that a convict can be reformed and
rehabilitated in society must be seriously considered by the courts
before awarding the death sentence - It is the obligation on the
prosecution to prove, through evidence, that the probability is that
[2018] 14 S.C.R. 585
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the convict cannot be reformed or rehabilitated - For the purposes
of sentencing, the Sessions Judge, the High Court as well as Supreme
Court did not take into consideration the probability of reformation,
rehabilitation and social re-integration of the appellant into society
- Further, trial court was also in error in taking into consideration,
for the purposes of sentencing, the pendency of two similar cases
against the appellant which it could not, in law, consider - However,
looking to the crimes committed by the appellant and the material
on record including his overall personality and subsequent events,
the sentence of death awarded to the appellant is commuted but the
appellant should not be released from custody for the rest of his
normal life - Penal Code, 1860- ss.376(2)(f), 377 and 302Evidence Act, 1872 - s.54 - CrPC, 1973 - s.354.
Evidence - DNA - Forensic science - Importance of - Held:
DNA profiling is an extremely accurate way of comparing specimens
and such testing can make a virtually positive identification - Where
DNA profiling has not been done or it is held back from the Trial
Court, an adverse consequence would follow for the prosecution -
Cr.P.C., 1973 - ss.53-A, 164-A.
Sentence/Sentencing - Prior history of the convict or criminal
antecedents - If to be considered - Held: Mere pendency of one or
more criminal cases against a convict cannot be a factor for
consideration while awarding a sentence - Not only is it statutorily
impermissible (except in some cases) but even otherwise it violates
the fundamental presumption of innocence - a human right - that
everyone is entitled to.
Disposing of the review petitions, the Court
HELD: 1.1 Ordinarily, it would not be advisable to award
capital punishment in a case of circumstantial evidence. But there
is no hard and fast rule that death sentence should not be awarded
in a case of circumstantial evidence. The precautions that must
be taken by all the courts in cases of circumstantial evidence is
this: if the court has some doubt, on the circumstantial evidence
on record, that the accused might not have committed the offence,
then a case for acquittal would be made out; if the court has no
doubt, on the circumstantial evidence, that the accused is guilty,
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then of course a conviction must follow. If the court is inclined to
award the death penalty then there must be some exceptional
circumstances warranting the imposition of the extreme penalty.
Even in such cases, the court must follow the dictum laid down in
Bachan Singh that it is not only the crime, but also the criminal
that must be kept in mind and any alternative option of
punishment is unquestionably foreclosed. The reason for the
second precaution is that the death sentence, upon execution, is
irrevocable and irretrievable. [Para 29][606-C-F]
Reform, rehabilitation and re-integration into society
1.2 The probability (not possibility or improbability or
impossibility) that a convict can be reformed and rehabilitated in
society must be seriously and earnestly considered by the courts
before awarding the death sentence. This is one of the mandates
of the "special reasons" requirement of Section 354(3) of the
Cr.P.C. and ought not to be taken lightly since it involves snuffing
out the life of a person. To effectuate this mandate, it is the
obligation on the prosecution to prove to the court, through
evidence, that the probability is that the convict cannot be
reformed or rehabilitated. This can be achieved by bringing on
record, inter alia, material about his conduct in jail, his conduct
outside jail if he has been on bail for some time, medical evidence
about his mental make-up, contact with his family and so on.
Similarly, the convict can produce evidence on these issues as
well. [Para 45][612-D-F]
1.3 If an inquiry of this nature is to be conducted, as is
mandated by the decisions of this Court, it is quite obvious that
the period between the date of conviction and the date of awarding
sentence would be quite prolonged to enable the parties to gather
and lead evidence which could assist the Trial Court in taking an
informed decision on the sentence. But, there is no hurry in this
regard, since in any case the convict will be in custody for a fairly
long time serving out at least a life sentence. It is for the
prosecution and the courts to determine whether such a person,
notwithstanding his crime, can be reformed and rehabilitated. To
obtain and analyse this information is certainly not an easy task
but must nevertheless be undertaken. The process of
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rehabilitation is also not a simple one since it involves social reintegration of the convict into society. Of course, notwithstanding
any information made available and its analysis by experts coupled
with the evidence on record, there could be instances where the
social re-integration of the convict may not be possible. If that
should happen, the option of a long duration of imprisonment is
permissible. [Paras 46, 47][612-F-G; 613-D-E]
1.4 In other words, directing imprisonment for a period
greater than 14 years (say 20 or 25 years) could unquestionably
foreclose the imposition of a sentence of death, being an
alternative option to capital punishment. [Para 48][613-E-F]
DNA evidence
2.1 While Section 53-A of the Cr.P.C. is not mandatory, it
certainly requires a positive decision to be taken. There must
be reasonable grounds for believing that the examination of a
person will afford evidence as to the commission of an offence of
rape or an attempt to commit rape. If reasonable grounds exist,
then a medical examination as postulated by Section 53-A(2) of
the Cr.P.C. must be conducted and that includes examination of
the accused and description of material taken from the person of
the accused for DNA profiling. Similarly, Section 164-A of the
Cr.P.C. requires, wherever possible, for the medical examination
of a victim of rape. Of course, the consent of the victim is
necessary and the person conducting the examination
must be competent to medically examine the victim.
[Paras 49, 50][613-F-H; 614-A, B-C]
2.2 For the prosecution to decline to produce DNA evidence
would be a little unfortunate particularly when the facility of DNA
profiling is available in the country. The prosecution would be
well advised to take advantage of this, particularly in view of the
provisions of Section 53-A and Section 164-A of the Cr.P.C. It is
not being suggested that if there is no DNA profiling, the
prosecution case cannot be proved but certainly that where DNA
profiling has not been done or it is held back from the Trial Court,
an adverse consequence would follow for the prosecution.
[Para 54][615-G-H; 616-A]
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2.3 There is no dispute that samples were taken from the
body of the accused and sent for DNA profiling. However, the
result was not produced before the Trial Court. There is
absolutely no explanation for this and in the absence of any
justification for not producing the DNA evidence, it would be
dangerous, on the facts of this case, to uphold the sentence of
death on the appellant. [Para 57][616-F-H]
Prior history of the convict or criminal antecedents
3.1 The history of the convict, including recidivism cannot,
by itself, be a ground for awarding the death sentence. There
could be a situation where a convict has previously committed an
offence and has been convicted and sentenced for that offence.
Thereafter, the convict commits a second offence for which he is
convicted and sentence is required to be awarded. This does not
pose any legal challenge or difficulty. But, there could also be a
situation where a convict has committed an offence and is under
trial for that offence. During the pendency of the trial he commits
a second offence for which he is convicted and in which sentence
is required to be awarded. Sections 54 of the Indian Evidence
Act, 1872 prohibits the use of previous bad character evidence
except when the convict himself chooses to lead evidence of his
good character. The implication of this clearly is that the past
adverse conduct of the convict ought not to be taken into
consideration for the purposes of determining the
quantum of sentence, except in specified circumstances.
[Paras 58, 59][617-A-D]
3.2 The mere pendency of one or more criminal cases
against a convict cannot be a factor for consideration while
awarding a sentence. Not only is it statutorily impermissible
(except in some cases) but even otherwise it violates the
fundamental presumption of innocence - a human right - that
everyone is entitled to. In the present case there are two cases
pending against the appellant for similar offences. Both these
were pending trial. Notwithstanding this, the Trial Judge took
this into account as a circumstance against the appellant. It would
have been far more appropriate for the Sessions Judge to have
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waited, if he thought it necessary to take the pendency of these
cases into consideration, for the trials to be concluded.
[Paras 73, 74][623-B-D]
3.3 A Trial Judge can take his time and sentence the convict
after giving adequate opportunity for the prosecution as well as
for the defence to produce material so that the possibility of
awarding life sentence is open to the Trial Judge as against the
death sentence. Sentence of death should be awarded only in the
rarest of rare cases, only if an alternative option is unquestionably
foreclosed and only after full consideration of all factors keeping
in mind that a sentence of death is irrevocable and irretrievable
upon execution. While the crime is important, the criminal is
equally important insofar as the sentencing process is concerned.
A perusal of the website of the eCourts Project of the eCommittee
of the Supreme Court revealed that in fact there were a total of
four cases against the appellant, including the present case. It is
not informed whether the conviction orders passed
against the appellant have been set aside or not.
[Paras 75, 77][623-F-H; 624-C; 625-B]
Conclusion
4. Insofar as the present petition is concerned, for the
purposes of sentencing, the Sessions Judge, the High Court as
well as this Court did not take into consideration the probability
of reformation, rehabilitation and social re-integration of the
appellant into society. Indeed, no material or evidence was placed
before the courts to arrive at any conclusion in this regard one
way or the other and for whatever it is worth on the facts of this
case. The prosecution was remiss in not producing the available
DNA evidence and the failure to produce material evidence must
lead to an adverse presumption against the prosecution and in
favour of the appellant for the purposes of sentencing. The Trial
Court was also in error in taking into consideration, for the
purposes of sentencing, the pendency of two similar cases against
the appellant which it could not, in law, consider. However, one
also cannot overlook subsequent developments with regard to
the two (actually three) similar cases against the appellant. For
all these reasons, it would be more appropriate looking to the
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crimes committed by the appellant and the material on record
including his overall personality and subsequent events, to
commute the sentence of death awarded to the appellant but it is
directed that he should not be released from custody for the rest
of his normal life. [Paras 79, 80][625-D-H; 626-A-B]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 -
followed.
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;
Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC
317 : [2013] 16 SCR 616 - relied on.
Shivaji alias Dadya Shankar Alhat v. State of
Maharashtra (2008) 15 SCC 269 : [2008] 13 SCR 81
; State of Maharashtra v. Shankar Krisanrao Khade
2008 ALL MR (Cri) 2143; Shankar Kisanrao Khade
v. State of Maharashtra (2013) 5 SCC 546 : [2013] 6
SCR 949 ; Laxman Naik v. State of Orissa (1994) 3
SCC 381 : [1994] 2 SCR 94 ; Dhananjoy Chatterjee
alias Dhana v. State of W.B. (1994) 2 SCC 220 : [1994]
1 SCR 37 ; State of Maharashtra v. Bharat Fakira
Dhiwar (2002) 1 SCC 622 : [2001] 5 Suppl. SCR 12 ;
State of Maharashtra v. Suresh (2000) 1 SCC 471 :
[1999] 5 Suppl. SCR 215 ; Adu Ram v. Mukna (2005)
10 SCC 597 : [2004] 5 Suppl. SCR 314 ; Molai and
Another v. State of M.P. (1999) 9 SCC 581 : [1999] 4
Suppl. SCR104 ; Rajendra Pralhadrao Wasnik v. State
of Maharashtra (2012) 4 SCC 37 : [2012] 2 SCR
225 ; Mohd. Arif alias Ashfaq v. Registrar, Supreme
Court of India (2014) 9 SCC 737: [2014] 11 SCR 1009;
Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC
467 : [2007] 1 SCR 916; Aloke Nath Dutta v. State of
West Bengal (2007) 12 SCC 230: [2006] 10 Suppl. SCR
662 ; Swamy Shraddananda v. State of Karnataka
(2007) 12 SCC 288 : [2007] 7 SCR 616 ; Swamy
Shradddananda (2) v. State of Karnataka (2008) 13
SCC 767 : [2008] 11 SCR 93 ; Sebastian v. State of
Kerala (2010) 1 SCC 58 : [2010] 1 SCC 58 ; Ramesh
v. State of Rajasthan (2011) 3 SCC 685: [2011] 4 SCR
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585 ; Kalu Khan v. State of Rajasthan (2015) 16 SCC
492 ; Prakash Dhawal Khairnar (Patil) v. State of
Maharashtra (2002) 2 SCC 35 : [2001] 5 Suppl.
 SCR 612 ; Lehna v. State of Haryana (2002) 3 SCC
76 : [2002] 1 SCR 377 ; 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 ; Birju v. State of Madhya
Pradesh (2014) 3 SCC 421: [2014] 1 SCR 1047; Anil
v. State of Maharashtra (2014) 4 SCC 69: [2014]
3 SCR 34; Mahesh Dhanaji Shinde v. State of
Maharashtra (2014) 4 SCC 292:[2014] 3 SCR 406;
Chhannu Lal Verma v. State of Chhattisgarh Decided
by Supreme Court on 28.11.2018 in Criminal Appeal
Nos.1482 & 1483 of 2018; Sangeet v. State of Haryana
(2013) 2 SCC 452 ; State of Gujarat v. Kishanbhai
(2014) 5 SCC 108: [2014] 1 SCR 197 ; Mukesh and
Anr. v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017] 6
SCR 1;
Selvi v. State of Karnataka (2010) 7 SCC
263 : [2010] 5 SCR 381 ; Mohd. Farooq Abdul Gafur
v. State of Maharashtra (2010) 14 SCC 641 : [2009]
12 SCR 1093 ;
Gurmukh Singh v. State of Haryana
(2009) 15 SCC 635 : [2009] 13 SCR 548 ; Bantu v.
State of M.P (2001) 9 SCC 615 : [2001] 4 Suppl. SCR
298 ; Amit v. State of Maharashtra (2003) 8 SCC 93 :
[2003] 2 Suppl. SCR 285 ; Rahul v. State of
Maharashtra (2005) 10 SCC 322 ; Surendra Pal
Shivbalakpal v. State of Gujarat (2005) 3 SCC 127 :
[2004] 4 Suppl. SCR 464 ; Her Majesty The Queen v.
Norman Skolnick [1982] 2 SCR 47 - referred to.
Scott Nathan Schluter v. Robin Laurence Trenerry (1997)
6 NTLR 194 - referred to.
Case Law Reference
(1980) 2 SCC 684
followed
Para 2
[2008] 13 SCR 81
referred to
Para 4
[2013] 6 SCR 949
referred to
Para 5
[1994] 2 SCR 94
referred to
Para 8
[1994] 1 SCR 37
referred to
Para 8
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[2001] 5 Suppl. SCR 12
referred to
Para 8
[1999] 5 Suppl. SCR 215
referred to
Para 8
[2004] 5 Suppl. SCR 314
referred to
Para 8
[1999] 4 Suppl. SCR 104
referred to
Para 8
[2012] 2 SCR 225
referred to
Para 10
[2014] 11 SCR 1009
referred to
Para 12
[2007] 1 SCR 916
referred to
Para 18
[2006] 10 Suppl. SCR 662
referred to
Para 19
[2007] 7 SCR 616
referred to
Para 20
[2008] 11 SCR 93
referred to
Para 22
[2009] 9 SCR 90
relied on
Para 24
[2010] 1 SCC 58
referred to
Para 25
[2011] 4 SCR 585
referred to
Para 26
[2013] 16 SCR 616
referred to
Para 27
(2015) 16 SCC 492
referred to
Para 28
[2001] 5 Suppl. SCR 612
referred to
Para 33
[2002] 1 SCR 377
referred to
Para 34
[2012] 13 SCR 1049
referred to
Para 37
[2013] 3 SCR 90
referred to
Para 38
[2014] 1 SCR 1047
referred to
Para 39
[2014] 3 SCR 34
referred to
Para 40
[2014] 3 SCR 406
referred to
Para 41
(2013) 2 SCC 452
referred to
Para 47
[2014] 1 SCR 197
referred to
Para 52
[2017] 6 SCR 1
referred to
Para 53
[2010] 5 SCR 381
referred to
Para 56
[2009] 12 SCR 1093
referred to
Para 65
[2009] 13 SCR 548
referred to
Para 66
[2001] 4 Suppl. SCR 298
referred to
Para 67
[2003] 2 Suppl. SCR 285
referred to
Para 68
(2005) 10 SCC 322
referred to
Para 70
[2004] 4 Suppl. SCR 464
referred to
Para 70
[1982] 2 SCR 47
referred to
Para 71
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CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) Nos. 306-307 of 2013.
IN
Criminal Appeal Nos. 145-146 of 2011
From the Judgment and Order dated 26.03.2009 of the High Court
of Judicature at Bombay, Nagpur Bench at Nagpur in Criminal
Confirmation Case No. 3 of 2008 with Criminal Appeal No. 700 of 2008.
Yug Mohit Chaudhry, Siddhartha, Payoshi, S. Prabu
Ramasubramanian, Pandiarajan, William Vinothkumar, S. Gowthaman
Advs. for the Appellant.
Nishant Ramakantrao Katneshwarkar, Ms. Deepa Kulkarni,
Anoop Kandari , Advs. for the Respondent.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J.
1. 'Sentenced to death' - these few words would have a chilling
effect on anyone, including a hardened criminal. Our society demands
such a sentence on grounds of its deterrent effect, although there is no
conclusive study on its deterrent impact. Our society also demands death
sentence as retribution for a ghastly crime having been committed,
although again there is no conclusive study whether retribution by itself
satisfies society. On the other hand, there are views that suggest that
punishment for a crime must be looked at with a more humanitarian lens
and the causes for driving a person to commit a heinous crime must be
explored. There is also a view that it must be determined whether it is
possible to reform, rehabilitate and socially reintegrate into society even
a hardened criminal along with those representing the victims of the
crime.
2. These conflicting views make it very difficult for courts to take
a decision and without expert evidence on the subject, courts are illequipped to form an objective opinion. But, a Constitution Bench of this
Court in Bachan Singh v. State of Punjab1 has thrown its weight behind
a humanitarian approach and mandated consideration of the probability
of reform or rehabilitation of the criminal and required the prosecution to
prove that it was not possible for the convict to be reformed or
rehabilitated. However, the Constitution Bench left open a corridor of
1(1980) 2 SCC 684
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uncertainty thereby permitting, in the rarest of rare cases, the
pronouncement of a sentence of death. It is this paradigm that confronts
us in these petitions.
Background
3. The appellant is convicted for the rape and murder of a girl
aged 3 years. The offence was committed in the intervening night of
2nd and 3rd March, 2007. On the basis of circumstantial evidence led
by the prosecution, the appellant was found guilty of and convicted for
offences punishable under Sections 376(2)(f), 377 and 302 of the Indian
Penal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No.
183 of 2007 by a judgment dated 6th September, 2008.
4. With regard to the sentence to be awarded, the Trial Judge
heard the prosecution and the appellant on 6th September, 2008 and
again on 8th September, 2008 on which date he passed a preliminary
order. The submissions of the Public Prosecutor as well as the learned
counsel for the defence were heard on that date and reference was
made to a decision of this Court in Shivaji alias Dadya Shankar Alhat
vs. State of Maharashtra2. In the decision rendered by this Court it
was observed in paragraph 27 of the Report as follows:
"27. The plea that in a case of circumstantial evidence death
should not be awarded is without any logic. If the circumstantial
evidence is found to be of unimpeachable character in establishing
the guilt of the accused, that forms the foundation for conviction.
That has nothing to do with the question of sentence as has been
observed by this Court in various cases while awarding death
sentence. The mitigating circumstances and the aggravating
circumstances have to be balanced. In the balance sheet of such
circumstances, the fact that the case rests on circumstantial
evidence has no role to play. In fact in most of the cases where
death sentences are awarded for rape and murder and the like,
there is practically no scope for having an eyewitness. They are
not committed in the public view. But the very nature of things in
such cases, the available evidence is circumstantial evidence. If
the said evidence has been found to be credible, cogent and
trustworthy for the purpose of recording conviction, to treat that
evidence as a mitigating circumstance, would amount to
consideration of an irrelevant aspect. The plea of the learned
2(2008) 15 SCC 269
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amicus curiae that the conviction is based on circumstantial
evidence and, therefore, the death sentence should not be
awarded is clearly unsustainable." (Emphasis supplied by us).
Thereafter, the learned Sessions Judge passed an order on 10th
September, 2008 awarding the sentence of death to the appellant.
5. We have gone through the orders passed on 8th September,
2008 as well as on 10th September, 2008 and find that the Sessions
Judge has primarily discussed the nature and gravity of the offence and
certain factors personal to the appellant such as the fact the he has a
child who is 9 years of age and his parents are dependent upon him.
The Sessions Judge also took into consideration the fact that there are
two other cases pending against the appellant under similar provisions of
law and he expressed the opinion that the pendency of those cases is a
circumstance against the appellant. For this, reliance was placed on
State of Maharashtra v. Shankar Krisanrao Khade3. It may be
mentioned, en passant, that the view of the Bombay High Court in
Shankar was not accepted by this Court in Shankar Kisanrao Khade
v. State of Maharashtra4 in paragraphs 60 and 61 of the Report.
6. On an overall view of the circumstances of the case, the Sessions
Judge concluded that any alternative option of punishment is
unquestionably foreclosed and therefore the only sentence that could be
awarded to the appellant is of capital punishment.
7. The appellant preferred an appeal against his conviction and
sentence before the Bombay High Court being Criminal Appeal No. 700
of 2008. This was heard along with Criminal Confirmation Case No. 3
of 2008. Both these were taken up for consideration and the conviction
was upheld and capital punishment awarded to the appellant was
confirmed by the High Court by a judgment and order dated 26th March,
2009.
8. The High Court considered the question of sentence to be
awarded to the appellant. (We are not concerned with the merits of the
conviction). It appears from a reading of the judgement that learned
counsel for the appellant argued in the Bombay High Court on the
question of sentence awarded to the appellant and the primary submission
made for commuting the death sentence to life imprisonment was that
the case was one of circumstantial evidence. Reference was made to
32008 ALL MR (Cri) 2143
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Laxman Naik v. State of Orissa5, Dhananjoy Chatterjee alias Dhana
v. State of W.B.6, State of Maharashtra v. Bharat Fakira Dhiwar7 ̧
State of Maharashtra v. Suresh8, Adu Ram v. Mukna9 and Molai
and Another v. State of M.P.10
9. Thereafter, the High Court held as follows:
"We have carefully considered the facts of the present case in
light of the above judicial precedents and find that the learned
Trial Judge rightly held that the appellant deserved capital
punishment. The appellants conduct exhibits total disregard
for human values and shows a totally depraved, brutal and
scheming mind taking advantage of a helpless child, showing
no concern that his lust extinguished the flame of life in the
child. We, therefore, confirm the sentence of death imposed upon
the appellant for offence punishable under Section 302 of the Penal
Code. We also dismiss the convict's appeal and maintain his
convictions as well as sentences imposed." (Emphasis supplied
by us).
10. Feeling aggrieved by the decision rendered by the High Court,
the appellant preferred appeals in this Court being Criminal Appeal Nos.
145-146 of 2011. These appeals were dismissed by a judgment and
order dated 29th February, 201211.
11. Review Petitions were then filed by the appellant being R.P.
(C) Diary No. 26107 of 2012 which came to be dismissed by an order
dated 7th March, 2013.
12. Thereafter, in a completely different case, a Constitution Bench
of this Court in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court
of India12 considered two basic issues in cases where death sentence
had been pronounced by the High Court. These two issues were: (1)
whether the hearing of cases in which death sentence has been awarded
should be by a Bench of at least three if not five judges of this Court, and
(2) whether the hearing of review petitions in death sentence cases should
not be by circulation, but should only be in open court.
5 (1994) 3 SCC 381
6 (1994) 2 SCC 220
7 (2002) 1 SCC 622
8 (2000) 1 SCC 471
9 (2005) 10 SCC 597
10 AIR 2000 SC 177 = (1999) 9 SCC 581
11 Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
12 (2014) 9 SCC 737
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13. In considering these issues, the Constitution Bench held that
henceforth in every appeal pending in this Court in which death sentence
has been awarded by the High Court, only a Bench of three judges will
hear the appeal. The Constitution Bench was not persuaded to accept
the submission that the appeal should be heard by five judges. With
regard to the oral hearing in open court, it was held that a limited oral
hearing ought to be given in cases where death sentence is awarded and
that would be applicable in pending review petitions and such review
petitions filed in future. This direction would also apply where a review
petition is already dismissed but the death sentence is not executed. In
such cases, the convict can apply for reopening the review petition within
one month from the date of the decision rendered by the Constitution
Bench. However, in cases where even a curative petition is dismissed,
it would not be proper to reopen such matters.
14. In the present appeal, a curative petition had not been filed by
the appellant and therefore in view of the decision of the Constitution
Bench, the review petitions were restored by an order dated 24th March,
2015 and that is how they have come up for consideration before us
after a gap of more than 31⁄2 years.
Submissions
15. It was submitted by learned counsel for the appellant that
there are a variety of factors that require to be taken into consideration
while awarding the death sentence, keeping in mind the view expressed
by this Court in Bachan Singh. Despite this, learned counsel confined
himself to four principal contentions before us only on the question of
commuting the death sentence to one of life imprisonment. The four
contentions urged were:
1.
The conviction was based on circumstantial evidence and
in such cases, the death sentence should ordinarily not be
awarded.
2.
The probability of reform and rehabilitation of the appellant
was not considered either by the Trial Court or by the High
Court or even by this Court despite several decisions
mandating such a consideration. It was submitted that there
is a probability that the appellant can be reformed and
rehabilitated.
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3.
Vital DNA evidence was not placed before the Trial Court
or taken into consideration contrary to the provisions of
Section 53-A of the Criminal Procedure Code, 1973 (for
short 'Cr.P.C')13 and Section 164-A of the Cr.P.C.14
13Section 53A. Examination of person accused of rape by medical practitioner. -
(1) When a person is arrested on a charge of committing an offence of rape or an
attempt to commit rape and there are reasonable grounds for believing that an examination
of his person will afford evidence as to the commission of such offence, it shall be
lawful for a registered medical practitioner employed in a hospital run by the Government
or by a local authority and in the absence of such a practitioner within the radius of
sixteen kilometers from the place where the offence has been committed by any other
registered medical practitioner acting at the request of a police officer not below the
rank of a sub-inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the arrested person and to use such force as
is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without
delay, examine such person and prepare a report of his examination giving the following
particulars, namely. -
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling,
and
(v) Other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be
noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.
14164A. Medical examination of the victim of rape. - (1) Where, during the stage
when an offence of committing rape or attempt to commit rape is under investigation,
it is proposed to get the person of the woman with whom rape is alleged or attempted
to have been committed or attempted, examined by a medical expert, such examination
shall be conducted by a registered medical practitioner employed in a hospital run by
the Government or a local authority and in the absence of such a practitioner, by any
other registered medical practitioner, with the consent of such woman or of a person
competent to give such consent on her behalf and such woman shall be sent to such
registered medical practitioner within twenty-four hours from the time of receiving the
information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent, shall, without
delay, examine her person and prepare a report of his examination giving the following
particulars, namely: -
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
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4.
The reference to the past history of the appellant was not
warranted.
We propose to deal with the submissions in seriatim.
Circumstantial evidence
16. In the cases of Laxman Naik, Dhananjoy Chatterjee and
Molai referred to by the High Court, there is no discussion one way or
the other whether the death penalty should or should not be awarded on
a conviction based on circumstantial evidence. What was discussed was
the brutality of the crime which warranted the imposition of the death
penalty. These decisions do not take forward the case of the appellant.
17. We now consider the cases cited before us by learned counsel
for the parties on the award of death sentence based on circumstantial
evidence.
18. In Bishnu Prasad Sinha v. State of Assam15 this Court
effectively accepted the proposition in paragraph 55 of the Report that
ordinarily death penalty would not be awarded if the connection is proved
by circumstantial evidence, coupled with some other factors that are
advantageous to the convict. It was held as follows:
"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
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
4) The report shall specifically record that the consent of the woman or of the person
competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be
noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the
investigating officer who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination
without the consent of the woman or of any person competent to give such consent on
her behalf.
Explanation. - For the purposes of this section, "examination" and "registered medical
practitioner" shall have the same meanings as in section 53.
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borne in mind that the appellants are convicted only 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
Procedure. He accepted his guilt." (Emphasis supplied by us).
19. In Aloke Nath Dutta v. State of West Bengal16 the principle
that death penalty should ordinarily not be awarded in a case arising out
of circumstantial evidence was broadly accepted along with the rider
that there should be some "special reason" for awarding the death penalty.
It was held in paragraph 174 of the Report as follows:
"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
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
rigorous imprisonment for life as against Aloke Nath. Furthermore
we do not find any special reason for awarding death penalty
which is imperative." (Emphasis supplied by us).
20. In Swamy Shraddananda v. State of Karnataka17 this Court
sounded a note of caution in paragraph 87 of the Report that convictions
based on seemingly conclusive circumstantial evidence should not be
presumed to be fool-proof. It was held:
"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 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
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17(2007) 12 SCC 288
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punishment is unique in its total 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." (Emphasis supplied by
us).
21. In Swamy Shraddananda the view taken by Justice S.B.
Sinha was that on the facts of the case, death sentence was not warranted
but that the appellant should be awarded life sentence which must be
meant as sentence for life. However, Justice Markandey Katju differed
on the sentence to be awarded and expressed the view that the case
was one where the murder was cold-blooded, calculated and diabolic.
The learned Judge was of opinion that the case fell within the category
of rarest of rare cases and it would be a travesty of justice if the death
sentence is not affirmed. Accordingly, the learned Judge affirmed the
death sentence.
22. In view of the difference of opinion with regard to the quantum
of punishment, the matter was referred to a larger Bench of three learned
judges. The decision of the larger Bench is reported as Swamy
Shradddananda (2) v. State of Karnataka18.
23. The larger Bench took the view that the case was one of
circumstantial evidence only.