2008 Supreme(SC) 1113

2008(5) Supreme 596
Supreme Court of india
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Bantu — Appellant
versus
The State of U.P. — Respondent
Criminal Appeal No. 117 of 2007
Decided on : 23-07-08

Important Points
1.While deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up.
2.Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats.It is, therefore, duty of every court to award proper sentence having regard to the nature of offence and manner in which it was executed or committed etc.
3.If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
4.For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its omission. The offence can be proved by circumstantial evidence also.

Headnote:Indian Penal Code, 1860 – Sections 364, 376 and 302 – Offence of murder and rape – Imposition of death penalty – Validity of – Prosecution of appellant for committing rape on a minor girl of five years and thereafter committing her murder by inserting a wooden stick in her vagina-Conviction by Trial Court awarding death sentence to appellant – Appeal – Dismissed by High Court confirming death sentence – Appeal thereagainst – Plea that circumstances did not make out the alleged – Offence and that even if prosecution version was accepted in toto death sentence was not the appropriate sentence – Held for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission – The offence can be proved by circumstantial evidence also – The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts – Crcumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed – Since appellant wanted to camouflage the serious crime of rape committed by him over the 5 years old girl – So in a planned manner, after committing rape, appellant mercilessly inserted stem/stick deep inside fragile vagina of girl to extent of 33 cms. to cause her death, with a view to masquerade the crime as an accident – It was his cruel innovation that appellant inserted a stick deep into her vagina causing death of victim – It was just by providence that due to timely reach of witnesses (PWs 2, 3 & others) who were frantically searching the girl appellant could be caught in naked condition while inserting stick into the vagina of the victim- was near the lifeless body of the victim – Held case at hand fell in the rarest of rare category – The depraved acts of the accused called for only one sentence and that was death sentence – Impugned judgments of High Court, confirming conviction and sentence imposed by trial court, not warranted any interference. (Paras 19, 36 to 41)

       Circumstantial evidence – Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all 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 beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances – 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 11)

       (1977 SC 1063); (AIR 1956 SC 316); (AIR 1983 SC 446); (AIR 1985 SC 1224); (AIR 1987 SC 350); (AIR 1989 SC 1890),(AIR 1954 SC 621) – Relied upon.

       Circumstantial evidence – Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted – Circumstances relied upon must be found to be fully established and the cumulative effect of all the facts so established must be consistent only with hypothesis of guilt. (Para 14)

       Punishment – Principle of proportionality – The criminal law adheres in general to principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct – It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial – The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong – The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal” – If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. (Para 24)

       Words and phrases – Offence of rape – Meaning of – Offence of rape in its simplest term is ‘the ravishment of a woman, without her consent, by force, fear or fraud’, or as ‘the carnal knowledge of a woman by force against her will’- ‘Rape’ or ‘Raptus’ is when a man hath carnal knowledge of a woman by force and against her will or as expressed more fully – Rape is carnal knowledge of any woman, above age of particular years, against her will; or of a woman child, under that age, with or against her will’ – The essential words in an indictment for rape are rapuit and carnaliter cognovit; butcarnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; – In the crime of rape, ‘carnal knowledge’ means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation – In ‘Encyclopoedia of Crime and Justice’it is stated “......even slight penetration is sufficient and emission is unnecessary” – In Halsbury’s Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse – It is violation with violence of the private person of a woman-an-outrage by all means – By the very nature of the offence it is an obnoxious act of the highest order. (Para 20)

       Indian Penal Code, 1860 – Sections 364, 376 and 302 – Offence of murder and rape – Imposition of death penalty – Validity of – Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats-It is, therefore, duty of every court to award proper sentence having regard to the nature of offence and manner in which it was executed or committed etc. (Para 23)

       (AIR 1991 SC 1463) – Relied upon.

       Facts of the Case :

       1.Appellant herein in the instant case was prosecuted for committing rape on a minor girl of five years and thereafter committing her murder by inserting a wooden stick in her vagina. Trial Court convicted appellant awarding him death sentence .Appeal thereagainst was dismissed by High Court confirming death sentence.

       2.Present Appeal has been filed against said order of High Court. Plea of appellant that circumstances did not make out the alleged offence and that even if prosecution version was accepted in toto death sentence was not the appropriate sentence.

       Findings of the Court :

       Held for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. Since appellant wanted to camouflage the serious crime of rape committed by him over the 5 years old girl. So in a planned manner, after committing rape, appellant mercilessly inserted stem/stick deep inside fragile vagina of girl to extent of 33 cms. to cause her death, with a view to masquerade the crime as an accident.It was his cruel innovation that appellant inserted a stick deep into her vagina causing death of victim.It was just by providence that due to timely reach of witnesses (PWs 2, 3 & others) who were frantically searching the girl appellant could be caught in naked condition while inserting stick into the vagina of the victim was near the lifeless body of the victim. Held case at hand fell in the rarest of rare category. The depraved acts of the accused called for only one sentence and that was death sentence. Impugned judgments of High Court, confirming conviction and sentence imposed by trial court, not warranted any interference in the facts and circumstances of the case.

       Result : Appeal dismissed.