IMPORTANT POINT
1. Where a case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances proved are found to be incompatible with innocence of accused or guilt of any other person.
2. Where accused killed his wife, three daughters and one son, brutal acts were diabolic in conception and cruel in execution with no remorse, it was rightly held to be a rarest of rare case to warrant death sentence.

Headnote:Indian Penal Code, 1860—Section 302—Appellant convicted for murder of his wife, three daughters and son—Conviction was recorded on basis of extra judicial confession and circumstantial evidence of presence of appellant in the house where alleged incident took place and recovery of ear ring of the wife from his possession—High Court found evidence of PW1 a neighbour and PW2, brother of appellant to whom accused made confession of having killed victims immediately after incident, cogent and credible—Appeal—Where a case rested on circumstantial evidence, inference of guilt could be justified if all incriminating facts and circumstances were found to be incompatible with innocence of accused or guilt of any other person—Onus was on prosecution to prove that chain was complete conviction could not be interfered with.
       Held : 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 incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.(Para 10)
       In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
       (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;
       (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 be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.(Para 12)
       The conditions 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;
       (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;
       (3) the circumstances should be of a conclusive nature and tendency;
       (4) they should exclude every possible hypothesis except the one to be proved; and
       (5) there must be a chain of evidence so compete as not to leave any 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.(Para 17)
       (ii) Indian Penal Code, 1860—Sections 302 and 354(3)—Murder—Sentence—Normal punishment for murder is imprisonment for life and death penalty is an exception—In case of death sentence “special reasons” are required to be stated—A balance sheet of aggravating and mitigating circumstances has to be drawn up and just balance has to be struck—Principle of proportion between crime and punishment—Appellant accused committed murder of his wife, three daughters and son—Death sentence by trial Court and High Court upheld it—Appeal—Plea of drunkenness could never be an excuse for brutal, diabolic acts of accused—Brutal acts done by accused were diabolic in conception and cruel in execution with no recourse for same—Trial Court and High Court rightly found case to be one of rarest of rare case to warrant death sentence.
       Held : The former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) of the old Code does not affect the law regulating punishment under IPC. This amendment relates to procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment. Section 354(3) of the Code marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence “special reasons” are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence.(Paras 20 and 21)
       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 option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; and (b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?(Para 24)
       The following guidelines which emerge from Bachan Singh’s 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. 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 ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
       (iii)Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
       (iv)A balance sheet of aggravating and mitigating circumstances has 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.(Para 28)
       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. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.(Para 34)
       In the instant case, the plea of drunkenness can never be an excuse for the brutal, diabolic acts of the accused. The trial Court and the High Court have rightly treated the case to be one falling in rarest of rare category thereby attracting the death sentence.The brutal acts done by the accused-appellant are diabolic in conception and cruel in execution. The acts were not only brutal but also inhuman with no remorse for the same. Merely because he claims to be a drunk at the relevant point of time, that does not in any way get diluted not because of what is provided in Section 85 IPC but because one after another five lives were taken and that too of four young children. This case squarely falls under the rarest of rare category to warrant death sentence.(Paras 37 and 38)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

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

3. Appellant also filed an appeal and both the case under reference and the appeal were taken up together and disposed of by a common judgment.

4. According to the prosecution accused killed his wife-Anisha, three daughters namely, Gulfsha, Nisha and Anta @ Munni aged 9 years, 6 years and 4 years respectively and son Babu aged 2½ years. The Additional Sessions Judge (Fast Track), Nagaur had found the charge for commission of offence under Section 302 IPC to have been proved and imposed the death sentence.

5. Prosecution version in a nutshell is as follows:

On 10.12.2005 at about 6 A.M. Alladeen (PW-1) submitted a written report at Police Station, Nagaur stating inter alia that In the evening of 9.12.2005 the appellant Bablu gave beating to his wife and children. But they were rescued on his intervention. He described Bablu as a person of notorious character. It was further averred that in the morning at about 5 a.m. his brother appellant Bablu came out of the house shouting and making declaration that he has killed all the five bastards by strangulation one by one. He killed his wife Anisha, daughters Gulfsha, Nisha, Anta @ Munni and son Babu. The dead bodies were found placed on the mattresses tying the thumbs of each leg of the dead bodies by thread. On this information police registered a case for offence punishable under Section 302 I.P.C. and proceeded with investigation. All the dead bodies were sent for postmortem. A Medical Board consisting of three doctors conducted the postmortem of all the five dead bodies. The appellant was arrested. After usual investigation police laid charge-sheet against the appellant for offence punishable under Section 302 I.P.C. On being committed the appellant was tried of the charge of offence punishable under Section 302 I.P.C. by the court of Additional Sessions Judge (Fast Track), Nagaur. The trial court on consideration of the evidence led by the prosecution found the appellant guilty of offence under Section 302 I.P.C.

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

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

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

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

7. At the time of hearing the reference and the appeal the primary stand taken by the accused appellant was that the extra judicial confession relied upon by the prosecution is not correct. It was submitted that the alleged confession publicly standing on a platform is highly improbable. The High Court found that the evidence of Murad Khan (PW-1) and Bablu (PW-2) was cogent and credible. PW-1 was a neighbour and PW-2 is the brother of the accused-appellant. There is no reason as to why they would falsely implicate the accused-appellant by making an untruthful statement. Added to that, evidence of PW-1 about the behaviour of the appellant was relevant. The third circumstance was the recovery of ornament from the possession of the appellant. The circumstances highlighted by the prosecution according to the High Court presented a complete chain of circumstances. Though it was submitted by the accused-appellant that even if the prosecution case was accepted in its totality, there was no special reason to impose the death sentence. The High Court considered