CIRCUMSTANTIAL EVIDENCE

1.Padala Veera Reddy VS. State of Andhra Pradesh

Before adverting to the arguments advanced by the learned Counsel we shall at the threshold
point out that in the present case here is no direct evidence to connect the accused with the
offence in question and the prosecution rests its case solely on circumstantial evidence. this
Court in a series of decisions has consistently held 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. ( Paragraph 10)

2.Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. (02.12.2010 - SC)
MANU/SC/1021/

Brief facts which are necessary to dispose of this appeal are recapitulated as under:

The Appellant, who belongs to the Indian National Congress party (for short 'Congress party') is
the alleged accused in this case. The case of the prosecution, as disclosed in the First Information
Report (for short 'FIR'), is that Sidramappa Patil was contesting election of the State assembly on
behalf of the Bhartiya Janata Party (for short 'BJP'). In the FIR, it is incorporated that Baburao
Patil, Prakash Patil, Mahadev Patil, Mallikarjun Patil, Apparao Patil, Yeshwant Patil were
supporters of the Congress and so also the supporters of the Appellant Siddharam Mhetre and
opposed to the BJP candidate.

5. On 26.9.2009, around 6.00 p.m. in the evening, Sidramappa Patil of BJP came to the village to
meet his party workers. At that juncture, Shrimant Ishwarappa Kore, Bhimashankar Ishwarappa
Kore, Kallapa Gaddi, Sangappa Gaddi, Gafur Patil, Layappa Gaddi, Mahadev Kore, Suresh
Gaddi, Suresh Zhalaki, Ankalgi, Sarpanch of village Shivmurti Vijapure met Sidramappa Patil
and thereafter went to worship and pray at Layavva Devi's temple. After worshipping the
Goddess when they came out to the assembly hall of the temple, these aforementioned political
opponents namely, Baburao Patil, Prakash Patil, Gurunath Patil, Shrishail Patil, Mahadev Patil,
Mallikarjun Patil, Annarao @ Pintu Patil, Hanumant Patil, Tammarao Bassappa Patil, Apparao
Patil, Mallaya Swami, Sidhappa Patil, Shankar Mhetre, Usman Sheikh, Jagdev Patil, Omsiddha
Pujari, Panchappa Patil, Mahesh Hattargi, Siddhappa Birajdar, Santosh Arwat, Sangayya Swami,
Anandappa Birajdar, Sharanappa Birajdar, Shailesh Chougule, Ravi Patil, Amrutling Koshti,
Ramesh Patil and Chandrakant Hattargi suddenly came rushing in their direction and loudly
shouted, "why have you come to our village? Have you come here to oppose our Mhetre Saheb?
They asked them to go away and shouted Mhetre Saheb Ki Jai.

6. Baburao Patil and Prakash Patil from the aforementioned group fired from their pistols in
order to kill Sidramappa Patil and the other workers of the BJP. Bhima Shankar Kore was hit by
the bullet on his head and died on the spot. Sangappa Gaddi, Shivmurti Vjapure, Jagdev Patil,
Layappa Patil, Tammaro Patil were also assaulted. It is further mentioned in the FIR that about
eight days ago, the Appellant Siddharam Mhetre and his brother Shankar Mhetre had gone to the
village and talked to the abovementioned party workers and told them that, "if anybody says
anything to you, then you tell me. I will send my men within five minutes. You beat anybody.
Do whatever."

123. The arrest should be the last option and it should be restricted to those exceptional cases
where arresting the accused is imperative in the facts and circumstances of that case.

124. The court must carefully examine the entire available record and particularly the allegations
which have been directly attributed to the accused and these allegations are corroborated by other
material and circumstances on record.

3.State of Rajasthan vs. Babu Meena (13.02.2013 - SC) : MANU/

Mr. Jain assails the acquittal of the Respondent under Section 376 of the Indian Penal Code and
contends that the trial court ought to have accepted the evidence of Kirti (PW-3). He submits that
conviction can be based on the sole testimony of the prosecutrix and the trial court erred in
rejecting her evidence and acquitting the Respondent. In support of the submission he has placed
reliance on the judgment of this Court in the case of Vijay v. State of Madhya Pradesh
MANU/SC/0522/2010 : (2010) 8 SCC 191. Relevant para of the judgment reads as under:

14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if
found to be worthy of credence and reliable, requires no corroboration. The court may convict
the accused on the sole testimony of the prosecutrix.

8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the
conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of
credence and reliable and for that no corroboration is required. It has often been said that oral
testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly
unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable
testimony of a single witness, the conviction can be founded without corroboration. This
principle applies with greater vigour in case the nature of offence is such that it is committed in
seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the
court has no option than to acquit the accused.

9. In the background of the aforesaid legal position, when we consider the case in hand we are of
the opinion that the statement of the prosecutrix is not at all reliable or in other words wholly
unreliable. No other evidence has been led to support the allegation of rape. Hence, it shall be
unsafe to base the conviction on her sole testimony. In her evidence she had stated that she was
subjected to rape at 12.00 noon when her sister Jitendra, the wife of the accused had gone to
purchase milk. However, during the course of investigation she alleged that she was subjected to
rape at 06.30 A.M. When confronted with the aforesaid contradiction in the cross-examination,
she could not explain the aforesaid discrepancy. Her statement that she shouted for help when
she was subjected to rape also does not find support from the evidence of Ramchandra Salvi
(PW-11), the owner of the house where the incident is alleged to have taken place. Dr. Smt.
Sushila (PW-12), has also not supported the allegation of rape as also the Forensic Science
Laboratory Report. In the face of what we have observed above, the evidence of the prosecutrix
cannot be said to be wholly reliable.
10. In light of the aforesaid evidence the view taken by the trial court was the only possible view.
Once it is held so the order of acquittal is not fit to be interfered with and the High Court rightly
declined to grant leave against the judgment of acquittal.

11. In view of what we have observed above, we do not find any merit in the appeal and it is
dismissed accordingly.

© Manupatra Information Solutions Pvt. Ltd.

4.Balakrishana Das v. Radha Devi1

8. In the words of Rogers, an expert in any science, art or trade is one who by practice and
observation has become experienced therein. An expert, therefore, really means a person who by
reason of his training or experience is qualified to express an opinion whereas an ordinary
witness is not competent to do so. His evidence is only an opinion evidence which is based on
his special skill or experience. In view of the language of Section 45, it is necessary that before a
person can be characterised as an expert, it is necessary that there must be some material on the
record to show that he is one who is skilled in that particular science and is possessed of peculiar
knowledge concerning the same. He must have made special study of the subject or acquired
special experience therein. Thus before the testimony of a witness becomes admissible, his
competency as an expert must be shown, may be, by showing that he was possessed of necessary
qualification or that he has acquired special skill therein by experience. Apart from the question
that the report of a handwriting expert may be read in evidence, what is necessary is that the
expert should be subjected to cross-examination because an expert like any other witness is
fallible and the real value of his evidence consists in the rightful inferences which he draws from
what he has himself observed and not from what he merely surmises.

5.Dharam Deo Yadav vs State Of U.P on 11 April, 2014

31. We have already referred to the evidence of PW20, who conducted the post-mortem
examination. PW 21, Dr. G.V. Rao, Chief of the DNA Fingerprinting Laboratory, conducted the
DNA isolation on the basis of samples of blood of Allan Jack Routley and femur and humerus
bones of skeleton. PW21 deposed that he was satisfied regarding authenticity of the seal and its
intactness. PW21 adopted the test known as Short Tandem Space Repeats (S.T.R.) analysis,
which is stated to be a conclusive test, produces results even on degraded biological samples.
Fingerprinting analysis was carried out by STR analysis and on perusal of STR profile of the

1
Balakrishana Das v. Radha Devi AIR 1989 All 133.
source (Allan Jack Routley) with the sources of femur and humerus bones of Diana, it was
concluded that the source of Allan Jack Routely is biologically related to the sources of femur
and humerus bones.

32. Counsel appearing for the appellant, as already indicated, questioned the reliability of DNA
report and its admissibility in criminal investigation. It was pointed out that DNA is known for
being susceptible to damage from moisture, heat, infrared radiation etc. and that may degrade the
sample of DNA. Further, it was pointed out that during carriage, during its storage at police
stations or laboratories, it is prone to contamination and, therefore, the extent of absoluteness can
never be attributed to DNA results.

33. We are in this case concerned with the acceptability of the DNA report, the author of which
(PW21) was the Chief of DNA Printing Lab, CDFD, Hyderabad. The qualifications or expertise
of PW21 was never in doubt. The method he adopted for DNA testing was STR analysis. Post-
mortem examination of the body remains (skeleton) of Diana was conducted by Dr. C.B.
Tripathi, Professor and Head of Department of Forensic Medical I.M.S., B.H.U., Varanasi. For
DNA analysis, one femur and one humerus bones were preserved so as to compare with blood
samples of Allen Jack Routley. In cases where skeleton is left, the bones and teeth make a very
important source of DNA. Teeth, as often noticed is an excellent source of DNA, as it forms a
natural barrier against exogenous DNA contamination and are resistant to environmental
assaults. The blood sample of the father of Diana was taken in accordance with the set up precept
and procedure for DNA isolation test and the same was sent along with taken out femur and
humerus bones of recovered skeleton to the Centre for D.N.A. Fingerprinting and Diagnostics
(CDFD), Ministry of Science and Technology, Government of India, Hyderabad. PW21, as
already indicated, conducted the DNA Isolation test on the basis of samples of blood of Routley
and femur and humerus bones of skeleton and submitted his report dated 28.10.1998. DNA
Fingerprinting analysis was carried out by STR analysis and on comparison of STR profile of
Routley. When DNA profile of sample found at the scene of crime matches with DNA profile of
the father, it can be concluded that both the samples are biologically the same.

6.State of Rajasthan v. Rajaram, AIR 2003 SC 601.

J U D G M E N T ARIJIT PASAYAT, J.

The State of Rajasthan is in appeal questioning legality of judgment of the High Court of
Rajasthan at Jodhpur Bench, holding that the respondent was innocent and was entitled to
acquittal from the charges levelled against him for alleged commission of offence punishable
under Section 302, Indian Penal Code, 1860 (for short IPC). The accused was held to be guilty
by the learned Additional Session Judge, Hanumangarh who awarded a death sentence on
finding the accused guilty.

Accusations which laid foundation of the prosecution case reveal that information was given by
Sahi Ram (PW-6) on 20.12.1989 at about 7.15 a.m. at the Sangaria Police Station to the effect
that his younger brother was responsible for homicidal death of 5 persons, that is, his father,
younger brother, the younger brother's wife and their two children. The killings were on account
of gunshots and murders were committed on 19.12.1989. On the basis of information lodged
investigations were undertaken and on completion thereof charge sheet was filed stating that
offences punishable under Section 302 IPC and Section 27 of Indian Arms Act, 1959 (for short
'Arms Act') were committed, the appellant was described as the assailant. In order to further its
version, 7 witnesses were examined. The prosecution version rests on circumstantial evidence.
The accused examined himself as DW-1 and placed on record materials to attack the credibility
of evidence tendered by PW-3 & 4; more particularly it was stated that they were not favourably
disposed towards him, and had falsely implicated him. Accepting the version of Vinod Kumar
(PW-3) and Nand Ram (PW-4) before whom allegedly the accused made extra judicial
confession, the Trial Court found the accused guilty of offence punishable under Section
302 IPC as noted above and awarded death sentence in addition to the fine of Rs.5000. However,
it was found that the accusations relating to Section 27 of the Arms Act were not established. As
death sentence has been awarded, a reference was made to the High Court under Section 366 of
the Code of Criminal Procedure, 1973 (in short the 'Code') for confirmation. An accused also
filed an appeal. In appeal as noted at the threshold, the High Court found the evidence to be
inadequate to fasten the guilt on the accused and, therefore, prosecution version to be vulnerable.
The evidence of PW-3 and PW-4 which formed foundation of the Trial Court's judgment did not
find acceptance by the High Court finding the evidence to be unreliable and incogent.

The learned counsel for the appellant-State in support of the appeal submitted the approach of
the High Court is erroneous. There was no infirmity in the evidence of PW-3 and PW-4 to
warrant rejection of their evidence. They were related to both the accused and the deceased and
there is no reason as to why they would falsely implicate the accused. Conduct of the accused,
which was found to be suspect by the Trial Court, has been overlooked by the High Court while
directing acquittal. The wearing apparels of the accused contained bloodstains and since the
accused did not explain as to how the blood stains appeared on such apparels, that itself is a
suspicious circumstance, which the High Court overlooked.

The circumstances highlighted to fasten the guilt on the accused are as follows:-

(1) Extra judicial confession of the offence made by the accused before the witnesses.

(2) Immediately after the incident the accused was seen coming from the side of the dhani of the
deceased Maniram.

(3) The conduct of the accused immediately after the incident.

(4) Human blood being found on the clothes of the accused (5) Recovery of pistol being got
made by the accused. It is noted that circumstances 1, 2 and 3 related to the evidence of PWs-3
& 4. The pistol which was allegedly recovered on being pointed out by the accused was found to
be not one from which bullets found on the dead bodies were fired.

Learned counsel for the respondent-accused submitted that the case rests on circumstantial
evidence and the chain of circumstances highlighted by the prosecution did not lead to the
inevitable conclusion that ruled out others and established that accused alone was responsible for
the crime. It was further submitted that considering the fact that the appeal is against an order of
acquittal, scope for interference is very limited. The evidence of PW-3 & 4 has been rightly
discarded and there is no reason as to why the well-reasoned judgment of the High Court should
be interfered with. 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. 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 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 in a case where the accused has been
acquitted, for the purpose of ascertaining as to whether any of the accused committed any
offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (JT 2002 (3) SC 387)].
The principle 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, it is a compelling reason for interference. These
aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of
Maharashtra (1973 (3) SCC 193), Ramesh Babulal Doshi v. State of Gujarat (1996 (9) SCC 225)
and Jaswant Singh v. State of Haryana (JT 2000 (4) SC 114). Before analyzing factual aspects it
may be stated that 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. To put it differently circumstantial 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.

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.
7.Govinda Reddy v. State of Mysore, AIR 1960 SC 29

5. The mode of evaluating circumstantial evidence has been stated by this Court in Hanumant
Govind Nargundkar v. State of Madhya Pradesh, 1952 AIR(SC) 343, and it is as follows :

"It is well to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should 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 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."

Having regard to the aforesaid principle, the learned Sessions Judge and, on appeal, the High
Court definitely found the circumstantial facts relating to each of the accused and drew the
inference from them that the accused conjointly participated in the commission of the murder
and the other offences with which they were charged. On that finding, the learned Sessions Judge
convicted them on the counts on which they were charged. On the first count they were
sentenced to death and on the other counts they were sentenced to various terms of
imprisonment. On appeal, the High Court confirmed the conviction as well as the sentences
except in regard to the fourth count, as in its opinion, the offence of theft being an ingredient of
the offence of robbery, they should not have been convicted twice over the same offence. The
aforesaid appeals were filed by the accused against the sentences of death and imprisonment.

6. The learned Counsel for the appellants contended that an important link in the chain of
circumstantial evidence found by the Court below was the fingerprints of the appellants taken by
the police during the course of the investigation for the purpose of comparing the same with the
finger prints found on the articles scattered in the room in the house of Belur Srinivasa Iyengar,
where the incident took place, that the said evidence was inadmissible by reason of Art. 20, Cl. 3
of the Constitution of India, that if the finger prints were excluded from the evidence, the
continuity of the chain would be broken and that in any event there would be no. evidence to
hold that the three appellants conjointly participated in the commission of the offences with
which they were charged. The argument raises an important and interesting question, namely,
whether the taking of thumb impressions of the accused by the police during the investigation
and their use during the trial would be contrary to the constitutional guarantee given under Art.
20(3). In the present case, we are relieved of the duty of expressing our opinion on the said
question, as, in our view, even if the facts found on the basis of comparison of the finger prints of
the accused taken by the police during investigation with those found on the articles in the house
of Belur Srinivasa Iyengar were excluded, the other pieces of evidence were overwhelmingly
sufficient to sustain the convictions.

8.Mandagiri Keshava Rao v. State of A.P., 2001 Cr LJ 1360 (AP).

5. Before coming to the question as to whether alleged recovery made from A1 to A5 can be
made basis for their conviction it may be pointed out that from A6 to A10 no recoveries were
made, therefore, there is no case at all against A6 to A10. The learned trial Court convicted A6 to
A10 on the ground that A1 to A5 from whom recoveries were made had made a confessional
statement before the Police about the alleged participation of A6 to A1 0 in the offence. This is
absolutely illegal and not permissible. In Hari Charan v. State of Bihar AIR 1964 SC 1184 :
(1964 (2) Cri LJ 344) which was also followed in Param Hans Yadav v. State of Bihar AIR 1987
SC 955 : (1987 Cri LJ 789) the Supreme Court while dealing with confession of a co-accused for
the purpose of convicting the other accused, held (para 10 of AIR 1987 SC) :

Thus, the confession may be regarded as evidence in that generic sense because of the provisions
of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The
result, therefore, is that in dealing with a case against an accused person, the Court cannot start
with the confession of a co-accused person; it must: begin with other evidence adduced by the
prosecution and after it has formed its opinion with regard to the quality and effect of the said
evidence, then it is permissible to turn to the confession in order to receive assurance to the
conclusion of guilt which the judicial mind is about to reach on the said other evidence.

...that the confession of a co-accused person cannot be treated as substantive evidence and can be
pressed into service only when the Court is inclined to accept other evidence and feels the
necessity of seeking for an assurance in support of its conclusion deducible from the said
evidence.

The rule for relying on confession of an accused for the purpose of conviction of another accused
is that the confession should be used as a piece of corroborative evidence which would mean
that, if there is any evidence against an, accused person then that evidence may be corroborated
by the confession of another accused person. Courts should not begin the process of dealing with
conviction of a person on the basis of a confession made by co-accused. The beginning of the
process has to be done with some cogent evidence which may then be corroborated with such a
confession. This is the law which pertains to the confessions made before the Court. I fail to
understand how confession allegedly made before a police officer by accused A1 to A5 could be
used against A6 to A10. Therefore, their conviction is absolutely based on no evidence at all.
Accordingly conviction of A6, A7, A8 and A10 is set aside and the judgment is set aside to that
extent.

9.Kisanrao Khade vs. State of Maharashtra

25. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for
awarding sentence:

“Aggravating circumstances – (Crime test)

1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity,
kidnapping etc. by the accused with a prior record of conviction for capital felony or offences
committed by the person having a substantial history of serious assaults and criminal
convictions.

2. The offence was committed while the offender was engaged in the commission of another
serious offence.

3. The offence was committed with the intention to create a fear psychosis in the public at large
and was committed in a public place by a weapon or device which clearly could be hazardous to
the life of more than one person.

4. The offence of murder was committed for ransom or like offences to receive money or
monetary benefits.

5. Hired killings.

6. The offence was committed outrageously for want only while involving inhumane treatment
and torture to the victim.

7. The offence was committed by a person while in lawful custody.

8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty
like arrest or custody in a place of lawful confinement of himself or another. For instance,
murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of
Criminal Procedure.
9. When the crime is enormous in proportion like making an attempt of murder of the entire
family or members of a particular community.

10. When the victim is innocent, helpless or a person relies upon the trust of relationship and
social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and
is inflicted with the crime by such a trusted person.

11. When murder is committed for a motive which evidences total depravity and meanness.

12. When there is a cold blooded murder without provocation.

13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience
but even the conscience of the society.

Mitigating Circumstances: (Criminal test)

1. The manner and circumstances in and under which the offence was committed, for example,
extreme mental or emotional disturbance or extreme provocation in contradistinction to all these
situations in normal course.

2. The age of the accused is a relevant consideration but not a determinative factor by itself.

3. The chances of the accused of not indulging in commission of the crime again and the
probability of the accused being reformed and rehabilitated.

4. The condition of the accused shows that he was mentally defective and the defect impaired his
capacity to appreciate the circumstances of his criminal conduct.

5. The circumstances which, in normal course of life, would render such a behavior possible and
could have the effect of giving rise to mental imbalance in that given situation like persistent
harassment or, in fact, leading to such a peak of human behavior that, in the facts and
circumstances of the case, the accused believed that he was morally justified in committing the
offence.

6. Where the Court upon proper appreciation of evidence is of the view that the crime was not
committed in a pre-ordained manner and that the death resulted in the course of commission of
another crime and that there was a possibility of it being construed as consequences to the
commission of the primary crime.

7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though
prosecution has brought home the guilt of the accused.”

26. In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498, this
Court held the nature, motive, and impact of crime, culpability, quality of evidence, socio
economic circumstances, impossibility of rehabilitation and some of the factors, the Court may
take into consideration while dealing with such cases.

27. In Sangeeta’s case this Bench has held that there is no question of balancing the above
mentioned circumstances to determine the question whether the case falls into the rarest of rare
cases category because the consideration for both are distinct and unrelated. In other words the
“balancing test” is not the correct test in deciding whether capital punishment be awarded or not.

28. Aggravating Circumstances as pointed out above, of course, are not exhaustive so also the
Mitigating Circumstances. In my considered view that the tests that we have to apply, while
awarding death sentence, are “crime test”, “criminal test” and the R-R Test and not “balancing
test”. To award death sentence, the “crime test” has to be fully satisfied, that is 100% and
“criminal test” 0%, that is no Mitigating Circumstance favouring the accused. If there is any
circumstance favouring the accused, like lack of intention to commit the crime, possibility of
reformation, young age of the accused, not a menace to the society no previous track record etc.,
the “criminal test” may favour the accused to avoid the capital punishment. Even, if both the
tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating
circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test
(R-R Test). R-R Test depends upon the perception of the society that is “society centric” and not
“Judge centric” that is, whether the society will approve the awarding of death sentence to
certain types of crimes or not. While applying that test, the Court has to look into variety of
factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes
like sexual assault and murder of minor girls intellectually challenged, suffering from physical
disability, old and infirm women with those disabilities etc.. Examples are only illustrative and
not exhaustive. Courts award death sentence since situation demands so, due to constitutional
compulsion, reflected by the will of the people and not the will of the judges.

29. We have to apply the above tests in the present case and decide whether the courts below
were justified in awarding the death sentence.

Enormity of the Crime and execution thereof (Crime Test)

30. Victim was aged 11 years, on the date of the incident, a school going child totally innocent,
defenceless and having moderate intellectual disability. Ex. P-4 was a certificate issued by the
President of the Handicap Board General Hospital, Amravati which disclosed that the girl was
physically handicapped and was having moderate mental retardation. Evidence of PW 10, PW 12
and PW13 also corroborates the fact that she was a minor girl with moderate intellectual
disability, an aggravating circumstance which goes against the accused. Vulnerability of the
victim with moderate intellectual disability is an aggravating circumstance. The accused was a
fatherly figure aged 52 years.

31. Dr. Kewade – PW3, who conducted the post mortem, had deposed as well as stated in the
report the ghastly manner in which the crime was executed. Rape was committed on more than
one occasion and the manner in which rape as well as murder was executed had been elaborately
discussed in the oral evidence as well as in report which we do not want to reiterate. The action
of accused, in my view, not only was inhuman but barbaric. Ruthless crime of repeated actions
of rape followed by murder of a young minor girl who was having moderate intellectual
disability, shocks not only the judicial conscience, but the conscience of the society.

32. In my view, in this case the crime test has been satisfied fully against the accused.

Criminal Test

33. Let us now examine whether “Criminal Test’ has been satisfied. The accused was aged 52
years at the time of incident, a fatherly figure for the minor child. The accused is an able bodied
person has seen the world and is the father of two children. The accused repeatedly raped the girl
for few days, ultimately strangulated her to death. Intellectually challenged minor girls will not
be safe in our society if the accused is not given adequate punishment. Considering the age of the
accused, a middle ager of 52 years, reformation or rehabilitation is practically ruled out. In the
facts and circumstances of the case, in my view, criminal test has been fully satisfied against the
accused and I do not find any mitigating factor favouring the accused. The only mitigating
circumstance stated was that the accused is having two sons aged 26 and 27 years and are
dependent on him, which in my view, is not a mitigating circumstance and the “criminal test” is
fully satisfied against the accused. Both the crime test and criminal test are, therefore,
independently satisfied against the accused.
34. Let us now apply the R-R Test. I have critically and minutely gone through the entire
evidence and I am of the view that any other punishment other than life imprisonment would be
completely inadequate and would not meet the ends of justice.

35. Remember, the victim was a minor girl aged 11 years, intellectually challenged and elders
like the accused have an obligation and duty to take care of such children, but the accused has
used her as a tool to satisfy his lust. Society abhors such crimes which shocks the conscience of
the society and always attracts intense and extreme indignation of the community. R-R Test is
fully satisfied against the accused, so also the Crime Test and the Criminal Test”. Even though
all the above mentioned tests have been satisfied in this case, I am of the view that the extreme
sentence of Death penalty is not warranted since one of the factors which influenced the High
Court to award death sentence was the previous track record of the accused.

204. Dr. Chitaley has suggested these mitigating factors:

Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall
take into account the following circumstances:

10.Bachan Singh v. State of Punjab,2010 8 SCC 775

(1) That the offence was committed under the influence of extreme mental or emotional
disturbance.

(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would
constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by
evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally
justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said
defect unpaired his capacity to appreciate the criminality of his conduct.