Holding

The appellant is guilty of rape and murder, but the death penalty is not warranted; the death sentences are commuted to life imprisonment for the murder charge and 25 years rigorous imprisonment for the 376A charge.

Summary

A two‑and‑a‑half‑year‑old girl was abducted, brutally raped and murdered by her maternal uncle, Shatrughna Baban Meshram. The trial court convicted the appellant under Sections 302, 376(1), 376(2)(f,i,m) and 376A of the IPC and Section 6 of the POCSO Act, imposing death sentences on the charges of murder and rape‑resulting‑death. The Supreme Court examined whether the circumstantial evidence was unimpeachable, whether the offence fell within the fourth clause of Section 300 IPC, and whether the death penalty was justified under the "rarest of rare" doctrine, also addressing the ex‑post‑facto effect of recent statutory amendments and a procedural lapse under Section 235(2) CrPC. It held that while the appellant was guilty of the offences, the death penalty was not warranted; the death sentences were commuted to life imprisonment for the murder charge and 25 years rigorous imprisonment for the 376A charge, with other convictions affirmed.

Issues considered

The circumstantial evidence must be examined to determine if it is of unimpeachable character and conclusively establishes guilt.
Whether the appellant's conduct constitutes culpable homicide amounting to murder under clause fourthly of Section 300 IPC.
Whether the death penalty is justified under the "rarest of rare" principle for rape and murder of a minor.
The constitutionality of applying the post‑facto provision that life imprisonment means the remainder of the natural life under Section 376(2) and Section 6 POCSO.
Whether non‑compliance with Section 235(2) of the CrPC (separate hearing on sentence) mandates commutation of the death sentence.
The relevance of "residual doubt" as a mitigating factor in capital sentencing.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 433A
Criminal Law (Amendment) Act, 2013s. 376, s. 376A
Criminal Law (Amendment) Act, 2018
Criminal Law (Amendment) Ordinance, 2013s. 376, s. 376A
Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 376, s. 376(1), s. 376(2)(f), s. 376(2)(i), s. 376(2)(m), s. 376A
Protection of Children from Sexual Offences Act, 2012s. 5, s. 6

Subjects

rapemurderchild sexual assaultcircumstantial evidencedeath penaltyrarest of rareex post factoSection 300 IPCSection 376A IPCSection 235(2) CrPCresidual doubt

Judgment

[2020] 13 S.C.R. 1 1

SHATRUGHNA BABAN MESHRAM A
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 763-764 of 2016)
NOVEMBER 02, 2020 B
[UDAY UMESH LALIT, INDU MALHOTRA AND
KRISHNA MURARI, JJ.]
Penal Code, 1860 – s.376(1), (2)(f), (i), (m), s.376-A and s.302
– Protection of Children from Sexual Offences Act, 2012 – s.6 –
C
Rape and murder of a minor girl – A two-and-a-half-year-old girl
was subjected to sexual assault by her maternal uncle – The assault
was accompanied by bites on the body of the victim – The rape was
of such intensity that there was merging of vaginal and anal orifices
of the victim – The victim was taken to PW-6-doctor for medical
attention but she was already dead – The Trial Court found D
circumstances establishing the guilt of the appellant-accused – The
Trial Court held that the case was rarest of rare, one warranting
imposition of death sentence – Thus, the Trial Court by its order
awarded death sentence to the appellants on two counts, i.e. u/
s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment for
E
life under two counts, i.e. s.376(1)(2)(f), (i) and (m) of IPC and u/
s.6 of POCSO Act – The High Court affirmed the conviction and
the sentence passed by the Trial Court – On appeal, held: According
to the prosecution, on the day in question at about 7:30 p.m. when
the victim was with her grandfather, on the pretext that the father of
the victim had asked the appellant to bring the victim, the appellant, F
who was maternal uncle of the victim, took her away, this part is
conclusively established through the testimony of PW-2, the
grandfather – As deposed by PWs 1 and 2, the appellant was found
by the side of the victim at the spot – The victim was having various
injuries whereafter she was taken for medical attention – Soon after
G
incident appellant was also medically examined and injuries were
found on his private parts – The proximity in terms of time and the
promptitude in reporting are crucial factors and the evidence in
that behalf is completely trustworthy – The approximate time of the
injury of the appellant as given in report is consistent with the case
H
1
2 SUPREME COURT REPORTS [2020] 13 S.C.R.

A of prosecution – The pant of the victim was found at the spot of
incident is well established – In terms of chemical analyser’s report,
the blood found on the trousers of the appellant was that of victim
– This fact is also completely established – And it is a matter of
record that as per post-mortem report and medical opinion, there
was forceful sexual assault on the victim and her death was caused
B
due to injury which was in nature of multiple lacerations over vaginal
and anal region; and merging of vaginal and anal orifices – All
these circumstances stand proved beyond any doubt and by
themselves constitute a conclusive and consistent chain excluding
every other hypothesis except the guilt of the appellant – The
C appellant is thus guilty of having committed offences punishable
under clauses (f), (i) and (m) of sub-section (2) of s.376 of IPC;
and also, under clauses (j) and (m) of s.5 r/w s.6 of the POCSO Act,
(as it stood before it was amended by Act 25 of 2019) – Since
according to medical opinion, the death was because of sexual
assault, the appellant is also guilty of having committed offence
D
punishable u/s. 376A of IPC.
Penal Code, 1860 – ss.299, 300 and s.302 – Rape and
murder of a minor child – A two-and-a-half-year-old girl was
subjected to sexual assault – Her death was caused due to injuries
received during that assault – Whether such an act on part of the
E appellant comes within the parameters of ss.299 and 300 of IPC
and whether he is guilty of having committed culpable homicide
amounting to murder – Held: Considering the age of the victim in
the present case, the accused must have known the consequence
that his sexual assault on a child of two-and-a-half-year-old would
F cause death or such bodily injury as was likely to cause her death
– The instant matter thus comes within the parameters of clause
fourthly to s.300 IPC and the question posed on this issue must be
answered against the appellant – The appellant is therefore guilty
of having committed the offence of culpable homicide amounting to
murder.
G
Sentence/Sentencing – Rape and murder of a minor girl – A
two-and-a-half-year-old girl was subjected to sexual assault by her
maternal uncle – Her death was caused due to multiple injuries she
received during such assault – The Trial Court found that
circumstantial evidence established the guilt of the accused – The
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SHATRUGHNA BABAN MESHRAM v. 3
STATE OF MAHARASHTRA

Trial Court by its order awarded death sentence to the appellant on A
two counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorous
imprisonment for life under two counts, i.e. s.376(1)(2)(f), (i) and
(m) of IPC and u/s. 6 of POCSO Act – The death sentence was
confirmed by the High Court – On appeal, held: Merely because
the instant case is based on circumstantial evidence there is no reason
B
to commute the death sentence – The matter must be considered to
see whether the circumstantial evidence is of unimpeachable
character in establishing guilt of the accused or leads to an
exceptional case and also whether the evidence on record is so
strong and convincing that option of a sentence lesser than a death
penalty is foreclosed – In the instant case, the circumstances proved C
on record are clear, consistent and conclusive in nature and are of
unimpeachable character in establishing the guilt of the appellant
– The evidence on record also depicts an exceptional case where
two and half year old girl was subjected to sexual assault – However,
it cannot be said that the option of a sentence lesser than death
D
penalty is completely foreclosed – A definite pointer in favour of
the appellant is the fact that he did not consciously cause any injury
with the intent to extinguish the life of the victim – In matters where
the conviction is recorded with the aid of clause fourthly u/s. 300 of
IPC, it is very rare that the death sentence is awarded – In various
Supreme Court decisions, where the victims were below 16 years of E
age and had died during the course of sexual assault on them, the
maximum sentence awarded was life sentence – This aspect is very
important – Therefore, the appellant is guilty of the offence
punishable u/s. 302 IPC, since there was no requisite intent as would
bring the case under any of the first three clauses of s.300 IPC, the
F
offence in the present case does not deserve death penalty –
Appellant is sentenced to life imprisonment for offence punishable
u/s.302 IPC – The second count on which death sentence has been
imposed is u/s. 376A of IPC – In view of the fact that s.376A IPC
was brought on the statute book just a few days before the
commission of the offence, the appellant does not deserve death G
penalty for said offence – However, the appropriate punishment
for the offence u/s. 376A IPC must be rigorous imprisonment for a
term of 25 years – The conviction and sentence recorded by the
Courts below for the offences punishable u/s. 376(1), (2)(f), (i) and
(m) of IPC, and u/s.6 of the POCSO Act are affirmed.
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4 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Code of Criminal Procedure, 1973 – s.235(2) – Penal Code, 1860
– s.376(1), (2)(f), (i), (m), s.376-A and s.302 – Protection of Children
from Sexual Offences Act, 2012 – s.6 – Rape and murder of a minor
girl – Trial Court found appellant-accused guilty – The Trial Court,
by its order passed on the same day awarded death sentence to the
appellant on two counts, i.e. u/s.302 of IPC and u/s.376-A of the
B
IPC; rigorous imprisonment for life under two counts, i.e.
s.376(1)(2)(f), (i) and (m) of IPC and u/s. 6 of POCSO Act – The
death sentence was confirmed by the High Court – Before the
Supreme Court, the appellant contended that the sentence of death
was passed on the same day when the conviction order was
C pronounced, there was non-compliance of s.235(2) of the Code,
the infraction on that count was sufficient to consider commutation
of the sentence of death to that of life imprisonment – Held: Merely
on account of infraction of s.235(2) of the Code, the death sentence
ought not to be commuted to life imprisonment – Adequate and
sufficient opportunity afforded to the appellant to place all the
D
relevant materials on record in the light of principle laid down in
Dagdu v. State of Maharashtra.
Penal Code, 1860 – s.376(1)(2) and s.376A – Criminal Law
(Amendment) Ordinance, 2013 – Criminal Law (Amendment) Act,
2013 – Rape and murder of a minor girl – The Trial Court, by its
E order awarded death sentence to the appellant on two counts, i.e.
u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment
for life under two counts, i.e. u/s.376(1)(2)(f), (i) and (m) of IPC
and u/s. 6 of POCSO Act – The Criminal Law (Amendment)
Ordinance, 2013 (promulgated by the President of India on
F 03.02.2013), u/s.376(2) prescribed punishment as “shall be punished
with rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life” – The
sentence prescribed by s.376(2) as amended by the Amendment Act,
has for the first time provided that the imprisonment for life “shall
mean imprisonment for the remainder of that person’s natural life”
G – Whether imposition of life sentence in the instant case for the
offence under u/s.376(2) could “mean imprisonment for the
remainder of that person’s natural life” – Whether such ex-post
facto prescription would be consistent with the provisions of sub-
Article (1) of Article 20 of the Constitution – Held: In the instant
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SHATRUGHNA BABAN MESHRAM v. 5
STATE OF MAHARASHTRA

case, the offence was committed on 11.02.2013 when the provisions A
of the Ordinance were in force – However, the Amendment Act having
been given retrospective effect from 03.02.2013 – Since it was the
Ordinance which was holding the field, going by the provisions of
the Ordinance, Clauses (f), (h) and (l) of s.376(2) would get
attracted – As far as consistency of ex-post facto prescription with
B
Art.20(1) is concerned – An imposition of life sentence simpliciter
does not put any restraints on the power of the executive to grant
remission and commutation in exercise of its statutory power, subject
of course to s.433A of the Code – But, a statutory prescription that
it “shall mean the remainder of that person’s life” will certainly
restrain the executive from exercising any such statutory power and C
to that extent the concerned provision definitely prescribes a higher
punishment ex-post facto – In the process, the protection afforded
by Art.20(1) of the Constitution would stand negated – Therefore, it
is must to declare that the punishment u/s.376(2) of the IPC in the
present case cannot come with stipulation that the life imprisonment
D
“shall mean the remainder of that person’s life”.
Penal Code, 1860 – s.299 and s.300 – Interplay between –
discussed.
Words and Phrases – Theory of “Residual Doubt” –
discussed. E
Partly allowing the appeals, the Court
HELD: 1. The Trial Court found eight circumstances
establishing guilt of the appellant-accused. According to the
prosecution, on the day in question at about 7:30 p.m. when the
victim was with her grandfather, on the pretext that the father of F
the victim had asked the Appellant to bring the victim, the
appellant, who was maternal uncle of the victim, took her away.
This part of the evidence is conclusively established through the
testimony of PW2, the grandfather. This version finds mention in
the FIR which was recorded within few hours of the incident and
in the statement of PW2 recorded under Section 164 of the Code. G
There is nothing on record to doubt the veracity of said version.
It is true that some other witnesses were not examined by the
prosecution but the strength of the testimony of PW2 does not
get diminished on any count nor can it be said that his testimony
loses its weight because the witness was the grandfather of the
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6 SUPREME COURT REPORTS [2020] 13 S.C.R.

A victim. The version coming through this witness is cogent,
consistent and also figured in prompt reporting of the FIR. This
Court has, therefore, no hesitation in accepting that the first
circumstance as noted by the Trial Court stands conclusively
established. [Para 18.1][48-F-H; 49-A-B]
2. As deposed by PWs 1 and 2, the Appellant was found by
B
the side of the victim at the spot i.e. in the premises of Anganwadi.
The victim was having various injuries whereafter she was taken
for medical attention. Soon after the incident, the Appellant was
also medically examined and Report Exbt. 46 showed injury on
his body. Even if PW9 had turned hostile and some other
C witnesses were not examined, the fact that the victim was always
in the custody of Appellant till she was found at the spot alongside
the Appellant is quite clear. The proximity in terms of time and
the promptitude in reporting are crucial factors and the evidence
in that behalf is completely trustworthy. Thus, in view of this
Court, the second and third circumstances are also fully
D established. [Para 18.2][49-C-D]
3. Soon after his arrest, the Appellant was produced for
medical examination before PW 7-Dr., who found injury on private
parts of the Appellant. The approximate time of said injury as
given in the opinion Exh. 46 is consistent with the case of
prosecution. No explanation, not even a suggestion came from
E the Appellant how there could be an injury on his body as noticed
in Report Exh.46. Thus, the 4th circumstance also stands fully
established. [Para 18.3][49-E-F]
4. While considering the 5th circumstance, it must be stated
that as per record, the chappals were not proved to be that of the
F Appellant and the pieces of flesh found at the spot of incident
were also not proved to be that of a human being. To that extent,
5th circumstance was not proved at all. However, the fact that
the pant of the victim was found at the spot of incident is well
established on record, and the 5th circumstance must be taken
to be proved only with respect to the recovery of the pant of the
G victim. [Para 18.4][49-G-H; 50-A]
5. There is nothing on record to show that the stains of
semen found on clothing referred to in 6th circumstance, were
medically proved to be that of, or could be associated with the
Appellant. The 6th circumstance cannot therefore be taken to
be pointing against the Appellant. [Para 18.5][50-B]
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SHATRUGHNA BABAN MESHRAM v. 7
STATE OF MAHARASHTRA

6. In terms of Chemical Analyser’s Report Ext. 54, the blood A
found on the trousers of the Appellant was that of the victim.
This fact is completely established. Given the quick succession
of steps in investigation, including the medical examination and
seizure of the clothes of the Appellant, this Court does not find
any infirmity. This Court, therefore, accept that the 7th
circumstance stands fully established.[Para 18.6][50-B-C;50G] B

7. It is a matter of record that as per post-mortem report
and medical opinion, there was forceful sexual assault on the
victim and her death was caused due to injury No.17 which was in
the nature of multiple lacerations over vaginal and anal region;
and merging of vaginal and anal orifices. The 8th circumstance C
must therefore be taken to be proved fully except to the extent
that said circumstance makes reference to pieces of flesh found
at the spot of incident. [Para 18.7][50-H; 51-A-B]
8. Do the circumstances established on record satisfy the
requirements spelt out in the decision of this Court in Sharad D
Birdhichand Sarda is the question for consideration.
The established circumstances show:-
(a) The victim was in the custody of the Appellant, from
the time she was taken from her grandfather till she
was found lying in the premises of Anganwadi; where E
the Appellant was also found lying next to her.
(b) The victim, who was hale and hearty when she was
taken by the Appellant, had number of injuries on her
body when she was found next to the Appellant.
(c) The injuries on the body of the victim show that she F
was abused and sexually exploited.
(d) The sexual assault was so forceful that the victim, a
two-and-a-half-year-old girl suffered, among other
injuries, Injury No.17 i.e. Multiple lacerations over
vaginal and anal region merging vaginal and anal G
orifice, margins irregular, blood infiltrated, reddish.
(e) Injury No.17, as described above, was so severe that
there was merging of vaginal and anal orifices.
(f) The victim died because of Injury No. 17.
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8 SUPREME COURT REPORTS [2020] 13 S.C.R.

A (g) The Appellant had an injury on his private parts
corresponding to the period when the victim was in
his custody.
(h) The Appellant was found to be capable of having
sexual intercourse.
B (I) The trousers of the Appellant had blood stains, the
DNA profiles of which, matched with that of the blood
of the victim.
These circumstances at serial numbers (a) to (i) stand
proved beyond any doubt and by themselves constitute a
conclusive and consistent chain excluding every other hypothesis
C
except the guilt of the appellant. [Para 19][51-B-H; 52-A]
9. The appellant is thus guilty of having committed offences
punishable under clauses (f), (i) and (m) of sub-section (2) of
Section 376 of IPC; and also, under clauses (j) and (m) of Section
5 read with Section 6 of the POCSO Act, (as it stood before it was
D amended by Act 25 of 2019). Since according to medical opinion,
the death was because of injury No. 17, the Appellant is also guilty
of having committed offence punishable under Section 376A of
IPC. [Para 22][52-F-G]
10. The injuries suffered by the victim were directly as a
E result of sexual assault inflicted upon her. But the medical
evidence does not disclose that either before or after the
commission of sexual assault, any other injury was consciously
caused with the intention to extinguish the life of the victim. Injury
No. 17 which was the cause of death was suffered by the victim
during the course of commission of sexual assault upon her. The
F questions that arise, therefore, are whether such an act on part
of the Appellant comes within the parameters of Sections 299
and 300 of IPC and whether he is guilty of having committed
culpable homicide amounting to murder. [Para 23][52-G-H; 53-
A-B]
11. Considering the age of the victim in the present case,
G the accused must have known the consequence that his sexual
assault on a child of 2 ½ years would cause death or such bodily
injury as was likely to cause her death. The instant matter thus
comes within the parameters of clause fourthly to Section 300
IPC and the question posed at the beginning of the discussion on
this issue must be answered against the Appellant. The Appellant
H
SHATRUGHNA BABAN MESHRAM v. 9
STATE OF MAHARASHTRA

is therefore guilty of having committed the offence of culpable A
homicide amounting to murder. [Para 28][66-D-F]
12. As far as the sentence is concerned, after considering
various decisions of this Court, the Court summed up: (a) it is
not as if imposition of death penalty is impermissible to be awarded
in circumstantial evidence cases; and (b) if the circumstantial B
evidence is of an unimpeachable character in establishing the
guilt of the accused and leads to an exceptional case or the
evidence sufficiently convinces the judicial mind that the option
of a sentence lesser than death penalty is foreclosed, the death
penalty can be imposed. [Para 41][97-E-G]
13. If the present case is so considered, the discussion must C
broadly be classified under following two heads:-(A) Whether the
circumstantial evidence in the present case is of unimpeachable
character in establishing the guilt of the Appellant or leads to an
exceptional case; (B) Whether the evidence on record is so strong
and convincing that the option of a sentence lesser than a death D
penalty is foreclosed. [Para 53][126-G-H; 127-A-B]
14. Going by the circumstances proved on record and, more
particularly the facets detailed earlier as well as the law laid down
by this Court in series of decisions, the circumstances on record
rule out any hypothesis of innocence of the Appellant. The
E
circumstances are clear, consistent and conclusive in nature and
are of unimpeachable character in establishing the guilt of the
Appellant. The evidence on record also depicts an exceptional
case where two and half years old girl was subjected to sexual
assault. The assault was accompanied by bites on the body of the
victim. The rape was of such intensity that there was merging of F
vaginal and anal orifices of the victim. The age of the victim, the
fact that the Appellant was a maternal uncle of the victim and the
intensity of the assault make the present case an exceptional
one. [Para 53][127-B-D]
15. However, if the case is considered against the second
G
head, we do not find that the option of a sentence lesser than
death penalty is completely foreclosed. It is true that the sexual
assault was very severe and the conduct of the Appellant could
be termed as perverse and barbaric. However, a definite pointer
in favour of the Appellant is the fact that he did not consciously
cause any injury with the intent to extinguish the life of the victim.
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10 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Though all the injuries are attributable to him and it was injury
No.17 which was the cause of death, his conviction under Section
302 IPC is not under any of the first three clauses of Section 300
IPC. In matters where the conviction is recorded with the aid of
clause fourthly under Section 300 of IPC, it is very rare that the
death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24,
B 40, 45 and 64 of the Chart tabulated in paragraph 30 hereinabove,
where the victims were below 16 years of age and had died during
the course of sexual assault on them, the maximum sentence
awarded was life sentence. This aspect is of crucial importance
while considering whether the option of a sentence lesser than
death penalty is foreclosed or not. [Para 53][127-D-G]
C
16. This Court, therefore, finds that though the Appellant
is guilty of the offence punishable under Section 302 IPC, since
there was no requisite intent as would bring the case under any
of the first three clauses of Section 300 IPC, the offence in the
present case does not deserve death penalty. [Para 54][127-G-
D H; 128A]
17. The second count on which death sentence has been
imposed is under Section 376A of IPC. As noted earlier, the
offence was committed on 11.02.2013 and just few days before
such commission, Section 376A was inserted in IPC by the
Ordinance. As concluded by this Court, the ex-post facto effect
E given to Section 376A inserted by the Amendment Act would not
in any way be inconsistent with sub-Article (1) of Article 20 of the
Constitution. The Appellant is thus definitely guilty of the offence
punishable under Section 376A IPC. But the question remains
whether punishment lesser than death sentence gets ruled out
or not. As against Section 302 IPC while dealing with cases under
F Section 376A IPC, a wider spectrum is available for consideration
by the Courts as to the punishment to be awarded. On the basis
of the same aspects that weighed with this Court while
considering the appropriate punishment for the offence under
Section 302 IPC, in view of the fact that Section 376A IPC was
brought on the statute book just few days before the commission
G of the offence, the Appellant does not deserve death penalty for
said offence. At the same time, considering the nature and
enormity of the offence, it must be observed that the appropriate
punishment for the offence under Section 376A IPC must be
rigorous imprisonment for a term of 25 years. [Para 55][128-A-
E]
H
SHATRUGHNA BABAN MESHRAM v. 11
STATE OF MAHARASHTRA

Sharad Birdhichand Sarda v. State of Maharashtra A
(1984) 4 SCC 116 : [1985] 1 SCR 88; State of Andhra
Pradesh v. Rayavarapu Punnayya and Another (1976)
4 SCC 382 : [1977] 1 SCR 601; State of Madhya
Pradesh v. Ram Prasad [1968] 2 SCR 522; Santosh
S/o Shankar Pawar v. State of Maharashtra (2015) 7
B
SCC 641 : [2015] 4 SCR 962; Suraj Jagannath Jadhav
v. State of Maharashtra (2020) 2 SCC 693 : [2019]
15 SCR 84; State of Orissa v. Dibakar Naik and Others
(2002) 5 SCC 323 : [ 2002] 3 SCR 307; State, Govt of
NCT of Delhi v. Sunil and Another (2001) 1 SCC 652
: [2000] 5 Suppl. SCR 144; Amrit Singh v. State of C
Punjab (2006) 12 SCC 79: [2006] 8 Suppl. SCR 889;
Dattatraya Ambo Rokade v. The State of Maharashtra
(2019) 13 SCALE 187; Dagdu v. State of Maharashtra
(1977) 3 SCC 68 : [1977] 3 SCR 636; B. A. Umesh vs.
Registrar General, High Court of Karnataka (2017) 4
D
SCC 124 : [2016] 5 SCR 438;Vasanta Sampat Dupare
v. State of Maharashtra (2017) 6 SCC 631 : [2017]
3 SCR 850 ; Manoj Suryavanshi v. State of
Chhattisgarh (2020) 4 SCC 451 ; Hanumant v. State of
Madhya Pradesh [1952] SCR 1091; Vadivelu Thevar
v. State of Madras [1957] SCR 981; Jumman Khan v. E
State of U.P. and Another (1991) 1 SCC 752 :[1990]
3 Suppl. SCR 398; Amrutlal Someshwar Joshi v. State
of Maharashtra (1994) 6 SCC 186: [1994] 2 Suppl.
SCR 510; Shivaji alias Dadya Shankar Alhat v. State
of Maharashtra; (2008) 15 SCC 269:[2008]
F
13 SCR 81; Vasanta Sampat Dupare v.State of
Maharashtra (2015) 1 SCC 253; Manoharan v. State
(2019) 7 SCC 716; Aloke Nath Dutta v. State of West
Bengal (2007) 12 SCC 230 :[2006] 10 Suppl.
SCR 662; Swamy Shraddananda (2) v. State of
Karnataka (2008) 13 SCC 767:[ 2008] 11 SCR 93; G
Mohan and Ors. v. State of Tamil Nadu (1998) 5 SCC
336:[1998] 3 SCR 317; Nand Kishore v. State of
Madhya Pradesh (2019) 16 SCC 278; State of Haryana
v. Krishan and Another (2017) 8 SCC 204 : [2017]
7 SCR 251; Md. Mannan v. State of Bihar (2019) 16
H
12 SUPREME COURT REPORTS [2020] 13 S.C.R.

A SCC 584 : [2019] 8 SCR 266; Dileep Bankar v.
State of M.P. MANU/SC/1125/2019 ; Rameshbhai
Chandubhai Rathod v. State of Gujarat (2009) 5 SCC
740; Dhananjoy Chatterjee v. State of W.B. (1994) 2
SCC 220 : [1994] 1 SCR 37; Ashok Debabarma @
Achak Debbarma v. State of Tripura (2014) 4 SCC
B
747 : [2014] 4 SCR 287; Sudam v. State of Maharashtra
(2019) 9 SCC 388 : [2019] 14 SCR 943; Santosh
Kumar Satishbhushan Bariyar v. State of Maharashtra
(2009) 6 SCC 498 : [2009] 9 SCR 90; Kalu Khan v.
State of Rajasthan (2015) 16 SCC 492; Ravishankar
C alias Baba Vishwakarma vs. State of Madhya Pradesh
(2019) 9 SCC 689 : [2019] 14 SCR 285 – relied on.
Allauddin Mian v. State of Bihar (1989) 3 SCC 5 :
[1989] 2 SCR 498 ; Malkiat Singh and others v. State
of Punjab (1991) 4 SCC 341 : [1991] 2 SCR 256;
D Ajay Pandit v. State of Maharashtra (2012) 8 SCC 43
: [2012] 10 SCR 70; Bishnu Prasad Sinha v. State of
Assam (2007) 11 SCC 467 :[ 2007] 1 SCR 916;
Sebastian @ Chevithiyan v. State of Kerala (2010) 1
SCC 58; Purna Chandra Kusal v. State of Orissa (2011)
15 SCC 352; State of AP v. T. Prasanna Kumar (2003)
E 1 ACR 627 (SC); Mohd. Chaman v. State (NCT of Delhi)
(2001) 2 SCC 28; Ramesh Harijan v. State of Uttar
Pradesh (2012) 5 SCC 777 : [2012] 6 SCR 688; Ram
Deo Prasad v. State of Bihar (2013) 7 SCC 725 : [2013]
6 SCR 108; Ramesh v. State through Inspector of Police
F (2014) 9 SCC 392 : [2014] 7 SCR 956; Mohd. Arif
alias Ashfaq v. Registrar, Supreme Court of India (2014)
9 SCC 737:[2014] 11 SCR 1009; Santa Singh v. State
of Punjab (1976) 4 SCC 190 : [1977] 1 SCR 229;
Kamta Tiwari v. State of M.P. (1996) 6 SCC 250 : [1996]
5 Suppl. SCR 507; Molai and Another v. State of M.P.
G (1999) 9 SCC 581 : [1999] 4 Suppl. SCR 104; Neel
Kumar v. The State of Haryana (2012) 5 SCC 766 :
[2012] 5 SCR 696; Sushil Sharma v. State (NCT of
Delhi) (2014) 4 SCC 317 : [2013] 16 SCR 616;
Mahesh Dhanaji Shinde v. State of Maharashtra (2014)
H
SHATRUGHNA BABAN MESHRAM v. 13
STATE OF MAHARASHTRA

4 SCC 292 : [2014] 3 SCR 406; Rajesh Kumar v. State A
through Government of NCT of Delhi (2011) 13 SCC
706; Mohinder Singh v. State of Punjab,(2013) 3 SCC
294 : [2013] 3 SCR 90 ; Rameshbhai Chandubhai
Rathod (2) v. State of Gujarat (2011) 2 SCC 764 : [2011]
1 SCR 829; Amit v. State of U.P. (2012) 4 SCC 107 :
B
[2012] 1 SCR 1009 Sunil v. State of M.P. (2017) 4 SCC
393; Sunil Damodar Gaikwad v. State of Maharashtra
(2014) 1 SCC 129 : [2013] 9 SCR 295; Surendra Pal
Shivbalak Pal v. State of Gujarat (2005) 3 SCC 127
: [2004] 4 Suppl. SCR 464 ; Mahesh Dhanaji Shinde
v. State of Maharashtra (2014) 4 SCC 292:[2014] 3 C
SCR 406, Santosh Kumar Singh v. State of M.P. (2014)
12 SCC 650 : [2014] 7 SCR 928; Shyam Singh @
Bhima v. State of Madhya Pradesh (2017) 11 SCC 265;
Mukesh and Another v. State ( NCT of Delhi) and Others
(2017) 6 SCC 1 : [2017] 6 SCR 1 – referred to.
D
California v. Brown 93 L Ed 2d 934 : 479 US 538
(1987); Franklin v. Lynaugh 101 L Ed 2d155 : 487 US
164 (1988); Herrera v. Collins (1993) SCC Online US
SC 10; Oregon v. Guzek 546 US 517 (2006); Abdul
Kabir v. Quarterman 550 US 233 (2007); State v.
McKinney 74 SW 3d 291 – referred to. E

Case Law Reference
[1989] 2 SCR 498 referred to Para 17.2
[1991] 2 SCR 256 referred to Para 17.2
F
[2012] 10 SCR 70 referred to Para 17.2
[2007] 1 SCR 916 referred to Para 17.2
(2010) 1 SCC 58 referred to Para 17.2
(2011) 15 SCC 352 referred to Para 17.2
G
(2015) 16 SCC 492 relied on Para 17.2
[2014] 4 SCR 287 relied on Para 17.2
[2019] 14 SCR 943 relied on Para 17.2
[2019] 14 SCR 285 relied on Para 17.2
H
14 SUPREME COURT REPORTS [2020] 13 S.C.R.

A (2011) 13 SCC 706 referred to Para 17.2
[2013] 3 SCR 90 referred to Para 17.2
[2011] 1 SCR 829 referred to Para 17.2
[2012] 1 SCR 1009 referred to Para 17.2
B (2017) 4 SCC 393 referred to Para 17.2
[2013] 9 SCR 295 referred to Para 17.2
[2004] 4 Suppl. SCR 464 referred to Para 17.2
[2014] 3 SCR 406 referred to Para 17.2
C
[2014] 7 SCR 928 referred to Para 17.2
(2017) 11 SCC 265 referred to Para 17.2
[2016] 5 SCR 438 relied on Para 17.3
(2015) 1 SCC 253 relied on Para 17.3
D
[2017] 3 SCR 850 relied on Para 17.3
[2017] 6 SCR 1 referred to Para 17.3
[1985] 1 SCR 88 relied on Para 18
[1977] 1 SCR 601 relied on Para 24
E
[1968] 2 SCR 522 relied on Para 25
[2015] 4 SCR 962 relied on Para 25 (B)
[2019] 15 SCR 84 relied on Para 25 (C)

F [2017] 7 SCR 251 relied on Para 25 (D)
[2002] 3 SCR 307 relied on Para 26.1
[2000] 5 Suppl. SCR 144 relied on Para 26.2
[2006] 8 Suppl. SCR 889 relied on Para 26.3
G (2003) 1 ACR 627 (SC) referred to Para 26.4
(2001) 2 SCC 28 referred to Para 26.5
[2012] 6 SCR 688 referred to Para 26.5
[2013] 6 SCR 108 referred to Para26.5
[2014] 7 SCR 956 referred to Para 26.5
H
SHATRUGHNA BABAN MESHRAM v. 15
STATE OF MAHARASHTRA

(2019) 13 SCALE 187 relied on Para 26.6 A
[2014] 11 SCR 1009 referred to Para 30
[1977] 1 SCR 229 referred to Para 31
[1977] 3 SCR 636 relied on Para 31
(2020) 4 SCC 451 relied on Para 34 B
[1952] SCR 1091 relied on Para 35
[1957] SCR 981 relied on Para 35
[1990] 3 Suppl. SCR 398 relied on Para 36(i)
[1994] 2 Suppl. SCR 510 relied on Para 36(ii) C
[1996] 5 Suppl. SCR 507 referred to Para 36(iii)
[1999] 4 Suppl. SCR 104 referred to Para36(iv)
[2008] 13 SCR 81 relied on Para 36(v)
(2019) 7 SCC 716 relied on Para 36(vii) D
[2006] 10 Suppl. SCR 662 relied on Para 37(i)
[2008] 11 SCR 93 relied on Para 37(iii)
[2009] 9 SCR 90 relied on Para 37(iv)
[1998] 3 SCR 317 relied on Para 37(iv) E

[2012] 5 SCR 696 referred to Para 37(vi)
[2013] 16 SCR 616 referred to Para 37(vii)
[2014] 3 SCR 406 referred to Para 37(viii)
F
(2019) 16 SCC 278 relied on Para 37(x)
[2019] 8 SCR 266 relied on Para 37(xi)
(2009) 5 SCC 740 relied on Para 38
[1994] 1 SCR 37 relied on Para 37
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 763-764 of 2016.
From the Judgment and Order dated 12.10.2015 of the High Court
of Judicature at Bombay, Nagpur Bench in Criminal Appeal No.321 of
2015 and Criminal Confirmation Case No. 1 of 2015.
H
16 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Ms. Sonia Mathur, Sr. Adv., Sushil Kumar Dubey, Anuj Aggarwal,
Puneet Pathak, Himanshu Agarwal, Anshu Raj Singh, Balaji Srinivasan,
Sushil Karanjkar, Rahul S. Chitnis, Nishant Ramakantrao Katneshwarkar,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
B UDAY UMESH LALIT, J.
1. These appeals by Special Leave challenge the common judgment
and order dated 12.10.2015 passed by the High Court1 in Criminal Appeal
No. 321 of 2015 and Criminal Confirmation Case No. 1 of 2015 affirming
the judgment and order dated 14.08.2015 passed by the Trial Court 2 in
C Special Case (POCSO Act3) No.11 of 2013 and confirming the Death
Sentence awarded to the Appellant on two counts i.e. under Section 302
of the Indian Penal Code (IPC, for short) and under Section 376A of
IPC.
2. The victim in the present case was a girl of two and half years
D
of age and the First Information Report was lodged at 09.25 p.m. on
11.02.2013 by her father with Parwa Police Station, Yavatmal as under:-
“By coming to the Police Station, I lodge an oral report that since
one year I am residing with my family at Zatala. I have two
daughters and one son. The victim, aged 2 years is my daughter
E
No.-2. I reside in the neighbourhood of my father- in-law.
This day 11.02.13, as there was a programme of Mahaprasad in
Duttatraya Temple in the village I had gone there for taking meals
at about 7.00 p.m. After taking meals I returned home at about
7.30 p.m. At that time I did not see my daughter Miss XXX4 at
F
home. Therefore, I asked my father-in-law as to where was my
daughter. On it, he told me, “Shatrughna Baban Meshram, aged
21 years, resident of Zatala has taken away your daughter XXX4
from me saying that he would reach her to you”. But Shatrughna
did not bring my daughter to me. So I searched my daughter in
G the village. I saw my daughter XXX4 and Shatrughna Meshram
lying in the new, under construction, building of Anganwadi. There
was no pant on the person of my daughter. It was lying beside.
1
The High Court of Judicature at Bombay, Nagpur Bench, Nagpur.
2
The Additional Sessions Judge, Yavatmal
3
The Protection of Children from Sexual Offences Act, 2012.
H 4
The identity of the victim is not being disclosed
SHATRUGHNA BABAN MESHRAM v. 17
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Her face was bitten and private parts were swollen. I came out A
with my daughter. In the meantime, Baban Sambhaji Meshram,
aged 50 years also came there. He took Shatrughna to his house.
I along with father-in-law and Vitthal Ghodam took my daughter
in an auto from the village to Dr. Jaffar Siddiqui from Kurli. The
doctor examined her and declared her dead. So we returned home.
B
Shatrughna Meshram took my daughter XXX4 in the building of
Anganwadi, committed rape on her inhumanly in solitude, bit her
on face and lips and committed her murder.”
3. As stated in the FIR, the victim was taken to PW6 Dr. Md.
Jaffar Siddiqui for medical attention but she was already dead and there C
were marks of bites on her body. After registration of crime, the inquest
(Exh.15) was conducted which recorded, “– Black and bluish coloured
(contusion) marks are visible on both the cheeks and an injury is
visible on the left cheek. Similarly, both the lips are bitten. An injury
measuring 2 Cms. X 3 Cms. X 1 Cms. is visible on the chin”. It also
recorded that there were bite marks on the chest and stomach of the D
victim apart from signs of forcible sexual assault.
4. Soon after the registration of crime, PW13 A.P.I. Pankaj Vanjari
(Police Station In-charge) caused arrest of the Appellant vide Exh.23
and conducted spot panchnama. At the spot, full pant of the victim, pieces
of flesh and chappals of an adult male were found. E

5.The Appellant was taken to PW7 Dr. Ulhas Digambar Lingawar
for medical examination who found that:
“There was injury of abrasion on tip of the glans penis. The injury
size was 5mm X 3mm. That injury was caused within 24 hours. F
The accused was found capable for sexual intercourse.”
In response to queries by the Investigating Officer said witness
had stated in his opinion Exh 46:-
“(1) Yes, sign of sexual intercourse within 24 Hrs., was
present. G
(2) Yes, injury mentioned in certificate can be possible, due to
sexual intercourse.”
6. The Post Mortem on the body of the victim was conducted on
12.02.2013 by a Board of five medical professionals and the Report
(Exh. 53) noted:- H
18 SUPREME COURT REPORTS [2020] 13 S.C.R.

A “Evidence of perineal tear with merging of vaginal and anal orifice,
details mentioned under column No.17 & 21. Dried blood and faecal
stains over genital and perineal region.”
Following injuries were found on the person of the victim: -
“1. Multiple abrasions over right zygomatic region of sizes
B ranging from 0.5 cm x 0.5 cm. to 0.3 cm x 0.2 cm, reddish.
2. Abrasion over left upper eye-lid of size 0.5 cm x 0.5 cm,
reddish.
3. Abrasion over right cheek of size 4 cm x 4 cm, reddish.
C 4. Abrasion over left cheek of size 8.5 cm x 7 cm, reddish.
5. Evidence of missing both upper and lower lips exposing
labial fat with clean cut margins seen periorally without
blood infiltration (post mortem in nature).
6. Lacerated wound over chin, midline of size 3 cm x 3 cm
D
muscle deep with tissue missing, margins irregular and blood
infiltrated, reddish.
7. Bite mark over and around right nipple over a region of size
5 cm x 5 cm, margins contused, reddish.
E 8. Bite mark over and around left nipple over a region of size
3 cm x 3 cm, margins contused, reddish.
9. Bite mark over abdomen, 1 cm right at the level of umbilicus
over a region of size 4 cm x 3.5 cm, margins contused,
reddish.
F 10. Bite mark over abdomen in the midline, 5 cm below the
umbilicus, over a region of size 3 cm x 3 cm, margins
contused, reddish.
11. Bite mark over public region in the midline, 9cm below
umbilicus, over a region of size 4 cm x 3.5 cm, margins
G contused, reddish.
12. Bite mark over lateral aspect of right shoulder, over a region
of size 5 cm x 3 cm, margins contused, reddish.
13. Bite mark over right buttock, over a region of size 3 cm x 3
cm, margins contused, reddish.
H
SHATRUGHNA BABAN MESHRAM v. 19
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

14. Bite mark over right buttock, over a region of size 3 cm x 3 A
cm, margins contused, reddish, separated from injury No.13
by 1.5 cm.
15. Bite mark over right buttock, over a region of size 3 cm x
2.5 cm, margins contused, reddish separated from injury
No.14 by 1 cm. B
16. Bite mark over left buttock, over a region of size 3.7 cm x
3 cm, margins contused, reddish.
17. Multiple lacerations over vaginal and anal region merging
vaginal and anal orifice (perineal tear at 3, 6 and 9 O’clock
positions), margins irregular, blood infiltrated, reddish. C

18. Abrasion over left knee joint region, on anterior aspect, of
size 1 cm x 0.5 cm, reddish.
Note: 1. Injuries No.1, 2, 3, 4 & 18 are caused by hard and rough
surface. D
2. Injury No.5 is caused by sharp edged object.
3. Injury No.6 is caused by nibbling by teeth (nibbling by
bite).
4. Injury No.7 to 16 are caused by human bite.
E
5. Injury No.17 is caused by forceful sexual assault.”
Under the heading “Internal Injuries” the corresponding
observations in Column No.21 were:-
“Evidence of tear in the posterior vaginal wall with merging of
vaginal and anal canal (perineal tear). Surface ragged, margins irregular, F
blood infiltrated and reddish, extending and tearing (perforating) the
rectum, corresponding to injury No.17 under column no.17.”
On the effect of the injuries and the cause of death, the Report
stated: -
“(a) Whether the ante-mortem G
injuries found on the dead : Yes
body were sufficient in the
ordinary course of nature
to cause death.
H
20 SUPREME COURT REPORTS [2020] 13 S.C.R.

A (b) If yes, which of the injuries
were individually sufficient Injury No.17 under
in the ordinary course of column No.17 with its
nature of cause death. corresponding internal
(c) Which of the injuries injuries mentioned
collectively are sufficient in under column No.21
B
the ordinary course of with its consequences.
nature to cause death.
Opinion as to the cause of death : “Shock and haemorrhage
following perineal tear
With multiple injuries”.
C 7. The clothes of the victim as well as that of the Appellant were
sent for chemical analysis and the Report (Exh.69) was as under:-
“Description of Parcel/s
— Six sealed parcels, seals intact and as per copy sent.
D Description of articles contained in Parcels
1. Jersey Wrapped in paper labelled – A1
2. Full Pant Wrapped in paper labelled – B1
3. Full Shirt Wrapped in paper labelled – B2
E 4. Knicker Wrapped in paper labelled – B3
5. Full Pant (Small) Wrapped in paper labelled – C1
6. Earth Wrapped in paper labelled – C2
RESULTS OF ANALYSIS.
F — Exhibit No.1 has few blood stains ranging from 0.1 to 4 cm
in diameter on upper portion.
— Exhibit 2 has moderate number of blood stains, ranging from
0.1 to 2 cm in diameter mostly on front portion.
G — Exhibit No.5 has moderate number of blood stains, ranging
from 0.1 to 2 cm in diameter on middle and lower portion.
— No blood is detected on exhibits No.3,4 and 6.
— No semen is detected on exhibits No. 1, 2 3, 4 and 5.
— Blood detected on exhibits No.1, 2 and 5 is human.”
H
SHATRUGHNA BABAN MESHRAM v. 21
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Exhibits 1 and 5 referred to in the Report were clothes of the A
victim while Exhibits 2, 3 and 4 were that of the Appellant.
7.1 The relevant material including swabs taken from the body
of the victim, the clothes and blood samples were subjected to D.N.A.
analysis and the Report (Exh.54) stated:-
“Opinion: 1) The DNA profiles obtained from blood detected on B
ex.1 Jersey of deceased, ex.2 Full pant of accused, ex.5 full pant
of deceased in Bn-677/13, ex.2 Vaginal swab, ex.3 Vaginal smear
slide, ex.4 Cervical swab, ex.5 Cervical smear slide, ex.6 Anal
swab, ex.7 Anal smear slide, ex.8 Skin and tissue, ex.12 Swab
from bite site in Bn-678/13 are identical and from one and the C
same source of female origin and matched with the maternal and
paternal alleles present in ex.9 Blood of deceased xxx in Bn-678/
13.”
8. The Appellant was tried by the Trial Court in Special Case
(POCSO Act) No.11 of 2013 for having committed offences punishable D
under Sections 376(1)(2)(f)(m), 376A, 302 of IPC and under Section 6
of the POCSO Act. The Prosecution examined 13 witnesses and
produced the relevant material in support of its case.
8.1 PW1, the father of the victim proved the First Information
Report and also stated about the examination of the victim by PW6 Dr. E
Md. Jafar. PW2, the grandfather of the victim narrated how the Appellant
had taken the victim along with him. It was stated:-
“He told me that father of the victim had come from work and he
told him to bring the victim. I told him that the victim’s father was
yet to come and told him not to take the victim with him. But he F
did not listen me and took away the victim. Thereafter myself and
my wife went to the house of complainant and asked him whether
the victim was brought to him by accused and he told me that the
victim was not brought to him. Therefore myself, complainant
and Shrawan took search of the victim. We went towards water G
tank. One Vikas Masram on inquiry told that he saw the accused
with the victim going towards Anganwadi. Therefore, we went
towards Anganwadi. At that time the construction of Anganwadi
was incomplete and we saw that the victim and accused both
were lying in the premises of Anganwadi. Jins pant of the victim
was lying aside and T Shirt was on her person. We saw that she H
22 SUPREME COURT REPORTS [2020] 13 S.C.R.

A had sustained bite wounds on her lips, chicks, chest and hips.
There was bleeding from her private part.”
8.2 PW6 Dr. Md. Jaffar stated that when the victim was brought
before him, she was already dead and had found wounds and bites on
her body. PW7 Dr. Ulhas Digambar Lingawar, deposed about medical
B examination of the Appellant and opinion Exh.46.
8.3 PW10 Dr. Sachin Janbaji Gadge, Assistant Professor,
Department of Forensic Medicine, Vasantrao Naik Government Medical
College,
Yavatmal proved the Post Mortem Report and stated about injury
C
No.5 as under: -
“7. Injury No.5 can be caused by sharp edged teeth. No fracture
on external examination or palpation. All injuries are ante-mortem and
fresh. Except, injury No.5 under column No.17 (post-mortem).”
D The nature of injury No.17 and the steps taken after the post
mortem were indicated thus:-
“12. Injury No.17 under column No.17 with its corresponding
internal injury mentioned under column No.21 with its consequences
is sufficient to cause death in ordinary course of nature.
E Accordingly, the viscera was preserved. Vaginal, cervical and anal
swabs kept for semen analysis. Swabs from bite site and control
site kept for detection of saliva and comparison. Blood soaked
gauzed piece kept for D.N.A. Analysis and comparison. Skin and
tissue kept for D.N.A. Analysis. Hairs kept for comparison, if
F any. Blood soaked gauzed piece kept for blood group. Nail
clippings kept for detection of foreign blood group. Skin and tissues
kept for histopathological examination.
13. Above mentioned material packed, sealed, labled and handed
over to N.P.C. Ganesh, B.No.215 of P.S. Parwa. The receipt of
G P.C. Ganesh is on Ex.31 on the reverse of Ex.35. It bears signature
of Dr. R.R. Khetre on the top of Ex.35 with endorsement. I know
his signature. The endorsement is at Ex.52.
14. My opinion as to cause of death is shock and haemorrhage
following perineal tear with multiple injuries. There was forceful
H
SHATRUGHNA BABAN MESHRAM v. 23
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

sexual assault on the child. The injury No.17 was caused by A
forceful insertion of penis. The post- mortem report bears my
signature along with signatures of Doctors as named above.
Contents are correct. It is at Ex.53.”
In the cross-examination, the witness accepted that it was not
mentioned in the Post Mortem Report that injury No.5 was caused by B
sharp edged teeth. The relevant part of the cross-examination was as
under:-
“It is true that the column no.17 note no.2 in respect of injury no.5
it is not mentioned that the injury is caused by sharp edged teeth.
Witness volunteers that we had sent the sample for D.N.A. test. C
It is true that I had not specifically opined in P.M. report that
injury No.5 of column no.17 was caused by sharp edged teeth. It
is not true that the injury by teeth bite cannot produce clean cut
margin.”
Chandrakant Narayan Bijapwar, a grocery shop owner was D
examined as PW9. He stated that at about 7.00 p.m. on 11.02.2013 the
Accused had come to his shop and had purchased Parle Biscuits and
Laxminarayan Chiwada but he could not remember who was with the
Accused at that time. The witness was, therefore, declared hostile.
The Investigating Officer A.P.I. Pankaj Vanjari was examined as E
PW13 and deposed to the steps undertaken during investigation. He
deposed:-
“On 20-2-2013 I had sent the letter to J.M.F.C. Ghatanji for
recording the statements u/s 164 of Cr.P.C. of the grandfather
and Vikas Masram. The letter bears my signature. It is at Exh.81. F
Accordingly I received Exh.17.”
Exhibit 17 is the statement of the grandfather of the victim under
Section 164 of the Code5. However, the record is not clear whether
Vikas Meshram was examined under Section 164, and, if not, the reason
for such non-examination. In cross-examination of this witness, a
G
suggestion made to him was replied as under:-
“P.W.1 had stated that people beat the accused by fist and kick
blows. It is mentioned in his statement:”

5
The Code of Criminal Procedure, 1973
H
24 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Vikas Meshram was not examined in the trial as a witness.
Similarly, Baban Sambhaji Meshram, the father of the Appellant (referred
to in the FIR); and Shrawan and Meshram (referred to in the deposition
of PW2) were not examined as witnesses.
9. In the examination of the Appellant under Section 313 of the
B Code, when the evidence of PW7 Dr. Ulhas Digambar Lingawar was
put to him, the Appellant stated that the evidence was false. Similar was
his response, when the evidence that the blood of the victim was found
on his full pant, was put to him. His explanation to Question No.61 was:-
“Q.61 : Do you want to explain as to why prosecution witnesses
C
are deposing against you?
Ans. : When I had gone to the house of deceased girl, her
parents had a talk regarding the giving of human sacrifice
of the deceased to find out the hidden treasure and after
D hearing it when I told them that if they do such act then
I will lodge the report against them but they had lodged
the false report against me and deposed falsely.”
10. The Trial Court found that the following circumstances
established the guilt of the Appellant.
E
“(i) The first circumstance is that the accused took away the
deceased victim child from the lap of P.W.2, father- in-law
of the complainant i.e. victim’s father by saying that the
father of the deceased victim told him to bring the deceased
victim to him.
F
(ii) The second circumstance is that the deceased victim child
was in the custody of the accused since the time he took
her away from P.W.2.
(iii) The third circumstance is that the deceased victim child
G was found lying isolated place where the construction of
Anganwadi building was in progress and the accused was
also found lying on the same spot near the deceased victim
child.

H
SHATRUGHNA BABAN MESHRAM v. 25
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

(iv) The fourth circumstance is that as per report Exh. 44 issued A
by P.W.7 Dr. Lingawar, the injury of abrasion on tip of glance
of penis was found on examination of the accused and he
opined that the sign of sexual intercourse within 24 hours
was present and it is due to sexual intercourse.
(v) The fifth circumstance is that the pant of deceased victim B
child, pair of chappal of accused, pieces of flesh were seized
from the spot of incident as per Exh.20.
(vi) The sixth circumstance is that the pant, shirt and knicker
with the stains of semen of the accused were seized as per
seizure panchanama Exh.26. C
(vii) The seventh circumstance is that as per C.A. report Exh.
54 the blood present over the full pant of the accused was
found to be of the deceased victim child and it shows the
perfect matching with the blood of the deceased victim.
(viii) The eighth circumstance is that as per postmortem report D
Exh.53 and opinion of Dr. Gadge who had conducted
autopsy on the dead body of victim child, the injury No.17
was caused by forceful insertion of the penis as there was
forceful sexual assault on the deceased victim child and
the death of victim child was caused due to perineal tear E
and multiple injuries and the injuries were caused due to
nibbling by teeth and bite marks were found over the parts
of the body of deceased victim child. Even the pieces of
flesh were also found on the spot of incident which shows
the brutality in commission of crime.”
F
10.1 Finding the Appellant guilty of the offences with which he
was charged, the Trial Court in its judgment dated 14.8.2015, stated:-
“40. After declaring the accused guilty for the offences punishable
under Section 376(1)(2)(f)(i)(m) of Indian Penal Code, under
Section 376-A of Indian Penal Code, under Section 302 of Indian
G
Penal Code, and under Section 6 of Protection of Children from
Sexual Offences Act, I take a pause to hear the accused on the
point of sentence.”
10.2 Thereafter, on the same day, the Trial Court recorded:-
H
26 SUPREME COURT REPORTS [2020] 13 S.C.R.

A “42. The learned Public Prosecutor has submitted that the deceased
victim was helpless child aged two years and the accused is related
to her. The accused had committed rape and murder after taking
away the victim child from her grandfather and as per the injuries
described in P.M. report by P.W.10 Dr. Gadge, the accused had
committed inhuman act because the victim child had sustained
B
injury of perineal tear and injuries of bite marks and even the lips
were removed and as per the injury No.17 the injury of perineal
tear was caused by forceful sexual assault on the deceased victim
child by the accused. Therefore, there are aggravating
circumstances and the crime was well planned. It is further
C submitted that there is no chance of reformation of the accused.
The learned Public Prosecutor has further submitted that the case
falls under the category of ‘rarest of rare case’ for awarding
death sentence. In support of his submission he has placed reliance
on the observations made by the Hon’ble Apex Court in the case
of Vasanta Sampat Dupare vs. State of Maharashtra, reported in
D
2015 Cri. L.J. 7746, in which the Hon’ble Apex Court has observed
that,
“The gullibility and vulnerability of the four years girl, who could
not have nurtured any idea about the maladroitly designed
biological desires of this nature, went with the uncle who
E extinguished her life spark. The barbaric act of the appellant
does not remotely show any concern for the precious life of a
young minor child who had really not seen life. The criminality
of the conduct of the appellant is notonly depraved and debased,
but can have a menacing effect on the society”.
F It is also held by the Hon’ble Apex Court in the cited ruling
that,
“A helpless and defenceless child gets raped and murdered
because of the acquaintance of the appellant with the people
of the society. This is not only betrayal of an individual trust
G but destruction and devastation of social trust. It is perversity
in its enormity. It irrefragably invites the extreme abhorrence
and indignation of the collective. It is an anthema to the social
balance. It meets the test of rarest of rare case and therefore,
death sentence is affirmed.”
H 6
2015 Cr. L.J. 774 : (2015) 1 SCC 253
SHATRUGHNA BABAN MESHRAM v. 27
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

43. The learned Public Prosecutor has further submitted that the A
prosecution case as per the ruling cited supra in which the death
sentence was awarded was also based on circumstantial evidence
and it was considered in the category of rarest of rare cases.
44. Having regard to the facts and circumstances and evidence
on record, I am inclined to accept the argument advanced by the B
learned Public Prosecutor because in the facts of the ruling cited
supra [Wakkar and another vs. State of U.P.7] by the learned
defence counsel, there were two accused and it was not possible
to discern and arrive at any definite conclusion as to the role played
by each of the accused. Here in the present case there is only
one accused who committed rape and murder of the helpless and C
innocent child aged two years, therefore, ruling [Vasanta Dupare
vs. State of Maharashtra6] is applicable to the present case.
45. It is necessary to mention that brutality in committing rape on
the deceased victim child aged two years and taking away the life
of deceased victim child is required to be taken into consideration D
for coming to the conclusion that the case is rarest of rare one
warranting imposition of death sentence.
46. The deceased victim female child aged two years only was
innocent and helpless child. Having regard to the facts and
circumstances of the crime and considering the relevant factors, E
sentence of life imprisonment appears to be inadequate punishment
and I am of the opinion that this is the case which falls in the
category of rarest or rare cases warranting the imposition of death
sentence for the offence punishable under Section 376-A of Indian
Penal Code and for offence punishable under Section 302 of Indian F
Penal Code.”
10.3 The Trial Court thus, by its order passed on the same day
awarded Death Sentence to the Appellant on two counts, i.e. under
Section 302 of IPC and under Section 376-A of IPC; Rigorous
Imprisonment for life under two counts, i.e. Section 376(1)(2)(f), (i) and G
(m) of IPC and under Section 6 of POCSO Act. The Death Sentence
was subject to confirmation by the High Court.
11. The matter concerning confirmation of Death Sentence and
the substantive appeal by the Appellant against his conviction were dealt
7
(2011) 3 SCC 306 H
28 SUPREME COURT REPORTS [2020] 13 S.C.R.

A with together and by its judgment and order presently under appeal, the
conviction and sentence passed by the Trial Court were affirmed by the
High Court. It was observed by the High Court:
“37. By applying yardstick set by the Apex Court in the case of
Bachan Singh v. State of Punjab8 and Machhi Singh and others v.
B State of Punjab9 (cited supra) and the observations of this Court
in the matter of Rakesh Kamble if the present matter is considered,
in our opinion, in the guideline of aggravating circumstances, there
is a mention of clause (b) which deal with the murder which
involves exceptional depravity. In the light of the clause, if the
present matter is seen, the record reveals that the victim is a child
C of two and half years of age. The victim was subjected to a forceful
sexual exploitation. The medical evidence shows that the death is
caused due to the forceful intercourse. In our opinion, the present
case also covers clause (a) of “aggravating circumstances”
wherein it is referred that if a murder is committed after previous
D planning and involves extreme brutality. In the present matter, a
child was taken from the custody of the grandfather and in spite
of his resistance, a child was subjected to sexual violence and
then was done to death. In our opinion, the act of the appellant/
accused falls in clauses (a) and (b) of the “aggravating
circumstances”. We would also take into consideration the
E mitigating circumstances referred to in the judgment of the Apex
Court in the case of Bachan Singh v. State of Punjab (cited supra).
In our opinion, the only mitigating circumstance on which the
appellant/accused seeks benefit of clause (2) i.e. the accused is a
young boy. Even though the said mitigating circumstance of being
F of young age is available to the appellant/accused while balancing
the aggravating and mitigating factors, we are of the opinion that
the said mitigating circumstance would not be of any help to the
appellant/accused.
…… …
G 41. In the present case also, the accused is the maternal uncle of
the victim child. The Apex Court recently in the matter of

8
(1980) 2 SCC 684
9
(1983) 3 SCC 470
H
SHATRUGHNA BABAN MESHRAM v. 29
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Purushottam Dashrath Borate and another v. State of A
Maharashtra10 (cited supra), wherein the victim deceased who
was serving in a private company and was subjected to rape and
murder at the hands of the security guard and was awarded death
sentence on consideration of the submission that the appellant/
accused is a person of young age, observed that such
B
compassionate grounds are present in most of the cases and are
not relevant for interference in awarding death sentence. The
Apex Court further observed that the principle that when the
offence is gruesome and was committed in a calculated and
diabolical manner, the age of the accused may not be a relevant
factor. C
“15. In our opinion, the measure of punishment in a given case
must depend upon the atrocity of the crime; the conduct of the
criminal and the defenceless and unprotected state of the victim.
Imposition of appropriate punishment is the manner in which
the Courts respond to the society’s cry for justice against the D
criminals.
Justice demands that Courts should impose punishment befitting
the crime so that the Courts reflect public abhorrence of the crime. The
Courts must not only keep in view the rights of the criminal but also the
rights of the victim of crime and the society at large while considering E
imposition of appropriate punishment.”
The Apex Court also made it clear that lack of criminal antecedents
also cannot be considered as mitigating circumstances, particularly taking
into consideration, the nature of heinous offence and cold and calculated
manner in which it was committed by the accused persons. F
42. The Apex Court in the matter of Vasanta Sampat Dupare v.
State of Maharashtra6 (cited supra), wherein the victim was a girl
of four years of age and the appellant/accused, a neighbour luring
the victim for giving her chocolate, raped her and done her to
death by hit of stones. The Apex Court on the backdrop of the G
medical evidence, namely the victim was subjected to forceful
sexual intercourse, the deceased was last seen with the accused
and the immediate lodgement of report by the father of the girl,
lending credence to the prosecution case, observed thus:
10
(2015) 6 SCC 652 H
30 SUPREME COURT REPORTS [2020] 13 S.C.R.

A “60. In the case at hand, as we find, not only was the rape
committed in a brutal manner, but murder was also committed
in a barbaric manner. The rape of a minor girl child is nothing
but a monstrous burial of her dignity in the darkness. It is a
crime against the holy body of a girl child and the soul of society
and such a crime is aggravated by the manner in which it has
B
been committed. The nature of the crime and the manner in
which it has been committed speaks about its uncommonness.
The crime speaks of depravity, degradation and uncommonality.
It is diabolical and barbaric. The crime was committed in an
inhuman manner. Indubitably, these go a long way to establish
C the aggravating circumstances.
61. We are absolutely conscious that mitigating circumstances
are to be taken into consideration. The learned Counsel for the
appellant pointing out the mitigating circumstances would submit
that the appellant is in his mid-fifties and there is possibility of
D his reformation. Be it noted, the appellant was aged about forty
seven years at the time of commission of the crime. As is
noticeable, there has been no remorse on the part of appellant.
There are cases when this Court has commuted the death
sentence to life finding that the accused has expressed remorse
or the crime was not premeditated. But the obtaining factual
E matrix when unfolded stage by stage would show the
premeditation, the proclivity and the rapacious desire. The
learned Counsel would submit that the appellant had no criminal
antecedents but we find that he was a history- sheeter and
had a number of cases pending against him. That alone may
F not be sufficient. The appalling cruelty shown by him to the
minor girl child is extremely shocking and it gets accentuated,
when his age is taken into consideration. It was not committed
under any mental stress or emotional disturbance and it is
difficult to comprehend that he would not commit such acts
and would be reformed or rehabilitated. As the circumstances
G would graphically depict, he would remain a menace to society,
for a defenceless child has become his prey. In our considered
opinion, there are no mitigating circumstances.
62. As we perceive, this case deserves to fall in the category
of the rarest of rare cases. It is inconceivable from the
H
SHATRUGHNA BABAN MESHRAM v. 31
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

perspective of the society that a married man aged about two A
scores and seven makes a four years minor innocent girl child
the prey of his lust and deliberately causes her death. A helpless
and defenceless child gets raped and murdered because of the
acquaintance of the appellant with the people of the society.
This is not only betrayal of an individual trust but destruction
B
and devastation of social trust. It is perversity in its enormity.
It irrefragably invites the extreme abhorrence and indignation
of the collective. It is an anathema to the social balance. In our
view, it meets the test of the rarest of the rare case and we
unhesitatingly so hold.”
With this view, the High Court upheld the conviction and sentence C
as recorded by the Trial Court and confirmed the Death Sentence.
12. As the Death Sentence and life imprisonment have been
awarded on two counts each, the statutory changes that the concerned
provisions of the IPC and POCSO Act have undergone may briefly be
adverted to:- D

A. Before 03.02.2013, the relevant portions of Sections 375, 376
and 376A of IPC were as under:-
“375. Rape.–A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse with a woman E
under circumstances falling under any of the six folloing
descriptions:-
Firstly. Against her will.
Secondy.- Without her consent.
F
Thirdly.- …..
Fourthly.- …..
Fifthly.- …..
Sixthly.- With or without her consent, when she is under sixteen
years of age. G

Explanation …..
“376. Punishment for rape-(1) Whoever, except in the cases
provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not
H
32 SUPREME COURT REPORTS [2020] 13 S.C.R.

A be less than seven years but which may for life or for a term
which may extend to ten years and shall also be liable to fine
unless the woman raped is his own wife and is not under twelve
years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend
to two years or with fine or with both:
B
Provided that the court may, for adequate and special reasons to
be mentioned in the judgement, impose a sentence of imprisonment for a
term of less than seven years.
(2) Whoever,-
C (a) …..
(b) …..
(c) …..
(d) …..
D
(e) …..
(f) commits rape on a woman when she is under twelve years
of age; or
(g) …..
E shall be punished with rigorous imprisonment for a term which
shall not be less than ten years but which may be for life and shall also
be liable to fine:
Provided that the Court may, for adequate and special reasons to
be mentioned in the judgement, impose a sentence of imprisonment of
F either description for a term of less than ten years.
Explanation 1.- …..
Explanation 2.- …..
Explanation 3.- …..
G “376A. Intercourse by a man with his wife during separation.-
whoever has sexual intercourse with his own wife, who is living
separately from him under a decree of separation or under any
custom or usage without her consent shall be punished with
imprisonment of either description for a term which may extend
H to two years and shall also be liable to fine”
SHATRUGHNA BABAN MESHRAM v. 33
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

B. On 03.02.2013, the Criminal Law (Amendment) Ordinance, A
2013 (No.3 of 2013), hereinafter referred to as the Ordinance was
promulgated by the President of India. Section 8 of the Ordinance inter
alia substituted Sections 375, 376 and 376A of IPC; the relevant text of
the substituted provisions being:-
“375. A person is said to commit “sexual assault” if that person- B
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of another person or makes the person to do
so with him or any other person; or
(b) …..
C
(c) …..
(d) …..
(e) touches the vagina, penis, anus or breast of the person or
makes the person touch the vagina, penis, anus or breast of
that person or any other person, D
except where such penetration or touching is carried out for proper
hygienic or medical purposes under the circumstances falling under
any of the following seven descriptions:-
First-Against the other person’s will. Secondly.- Without the other
person’s consent. Thirdly.- ….. E

Fourthly.- …..
Fifthly.-…..
Sixthly.-With or without the other person’s consent, when such
other person is under eighteen years of age. F
Seventhly.-…..
Explanation 1 .….
Explanation 2 …..
Explanation 3 ….. Exception. ….. G

376. (1) Whoever, except in the cases provided for by sub- section
(2), commits sexual assault, shall be punished with rigorous
imprisonment of either description for a term which shall not be

H
34 SUPREME COURT REPORTS [2020] 13 S.C.R.

A less than seven years but which may extend to imprisonment for
life, and shall also be liable to fine.
(2) whoever,-
(a) …..
B (i) …..
(ii) …..
(iii) …..
(b) …..
C (c) …..
(d) …..
(e) …..
(f) being a relative, guardian or teacher of, or a person in a
D position of trust or authority towards, the person assaulted,
commits sexual assault on such person; or
(g) …..
(h) commits sexual assault on a person when such person is
under eighteen years of age; or
E
(i) …..
(j) …..
(k) …..
(l) while committing sexual assault causes grievous bodily harm
F or maims or disfigures or endangers the life of a person; or
(m) …..
shall be punished with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to
G imprisonment for life, and shall also be liable to fine.
Explanation 1.- …..
Explanation 2.- …..
376A. Whoever, commits an offence punishable under sub- section
(1) of sub-section (2) of section 376 and in the course of such
H
SHATRUGHNA BABAN MESHRAM v. 35
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

commission inflicts an injury which causes the death of the person A
or cause the person to be in a persistent vegetative state, shall be
punished with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to imprisonment
for life, which shall mean the remainder of that person’s natural
life, or with death.”
B
C) The Criminal Law (Amendment) Act, 2013 (No.13 of 2013),
hereinafter referred to as the Amendment Act received the assent of
the President and was published on 02.04.2013 but was given retrospective
effect from 03.02.2013. Section 9 of the Amendment Act inter alia
substituted Sections 375, 376 and 376A of IPC as under:-
C
“375. A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him
or any other person; or
(b) ….. D
(c) …..
(d) …..
under the circumstances falling under any of the following seven
descriptions: - E
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- …..
Fourthly.-….. F
Fifthly. …..
Sixthly.-With or without her consent, when she is under eighteen
years of age.
Seventhly.- ….. G
Explanation 1 ……
Explanation 2 ……
Exception 1……
Exception 2….. H
36 SUPREME COURT REPORTS [2020] 13 S.C.R.

A 376. (1) Whoever, except in the cases provided for in sub- section
(2), commits rape, shall be punished with rigorous imprisonment
of either description for a term which shall not be less than seven
years, but which may extend to imprisonment for life, and shall
also be liable to fine.
B (2) Whoever,-
(a) …..
(b) …..
(c) …..
C (d) …..
(e) …..
(f) being a relative, guardian or teacher of, or a person in a
position of trust or authority towards the woman, commits
rape on such woman; or
D
(g) …..
(h) …..
(i) commits rape on a woman when she is under sixteen years
of age; or
E
(j) …..
(k) …..
(l) …..
(m) while committing rape causes grievous bodily harm or maims
F
or disfigures or endangers the life of a woman; or
(n) …..
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may extend to
G imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and shall also be liable to
fine.
Explanation.- …..
376A. Whoever, commits an offence punishable under sub- section
H
SHATRUGHNA BABAN MESHRAM v. 37
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

(1) or sub-section (2) of section 376 and in the course of such A
commission inflicts an injury which causes the death of the woman
or causes the woman to be in a persistent vegetative state, shall
be punished with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
B
remainder of that person’s natural life, or with death.”
While repealing the Ordinance, Section 30 of the Amendment
Act states as under:-
“30. (1) The Criminal Law (Amendment) Ordinance, 2013 is
hereby repealed. C
(2) Notwithstanding such repeal, anything done or any action taken
under the Indian Penal Code, the Code of Criminal Procedure,
1973 and the Indian Evidence Act, 1872, as amended by the said
Ordinance, shall be deemed to have been done or taken under the
corresponding provisions of those Acts, as amended by this Act.” D
D.The Criminal Law (Amendment) Act, 2018 (Act 22 of 2018)
which came into effect from 21.04.2018, deleted clause (i) of Section
376(2) of IPC and added sub-section (3) after Section 376(2) as well as
inserted Section 376AB as under:
“376 … … … E
(3)Whoever, commits rape on a woman under sixteen years of
age shall be punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and shall also be liable to F
fine:
… … …
“376AB- Punishment for rape on woman under twelve years of
age- Whoever, commits rape on a woman under twelve years of
age shall be punished with rigorous imprisonment for a term which G
shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and with fine or with death:
… … …”
H
38 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Since the offence in the instant case was committed well before
21.04.2018, we are not called upon to consider the effect of Act 22 of
2018 but the provisions are noted for the sake of completeness.
E. Sections 5 and 6 of the POCSO Act, at the time when the
offence was committed in the instant case, provided: -
B “5: Aggravated penetrative sexual assault-
a) …..
b) …..
c) …..
C
d) ……
e) …..
f) …..
g) …..
D
h) ….
i) …..
j) Whoever commits penetrative sexual assault on a child,
which-
E
(i) Physically incapacitates the child or causes the child to
become mentally ill as defined under clause (b) of
section 2 of the mental health Act, 1987 (14 of 1987) or
causes impairment of any kind so as to render the child
unable to perform regular tasks, temporarily or
F permanently;
(ii) In the case of female child, makes the child pregnant
as a consequence of sexual assault;
(iii) Inflicts the child with Human Immunodeficiency Virus
or any other life- threatening disease or infection which
G may either temporarily or permanently impair the child
by rendering him physically incapacitated, or mentally
ill to perform regular tasks;
k) …..

H l) …..
SHATRUGHNA BABAN MESHRAM v. 39
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

m) Whoever commits penetrative sexual assault on a child A
below twelve years; or
n) …..
o) …..
p) ….. B
q) …..
r) …..
s) …..
t) ….. C
u) …..
“6. Punishment for aggravated penetrative sexual assault. –
Whoever, commits aggravated penetrative sexual assault, shall
be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may extend to imprisonment D
for life and shall also be liable to fine.”
By virtue of the Protection of Children from Sexual Offences
(Amendment) Act, 2019 (Act 25 of 2019) which came into effect on
16.08.2019, sub-Clause (iv) was inserted in Clause (j) of Section 5 as
under:- E

“(iv) causes death of the child; or”
Further, Section 6 was substituted as under:-
“6. Punishment for aggravated penetrative sexual assault.-
F
(1) Whoever commits aggravated penetrative sexual assault shall
be punished with rigorous imprisonment for a term which shall
not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of natural life of that person, and shall also be liable to
fine, or with death. G

(2) The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses
and rehabilitation of such victim.”

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40 SUPREME COURT REPORTS [2020] 13 S.C.R.

A 13. If the abovementioned provisions of IPC are considered in
three compartments, that is to say,
(A) The situation obtaining before 03.02.2013
(B) The situation in existence during 03.02.2013 to 02.04.2013
and,
B
(C) The situation obtaining after 02.04.2013: following features
emerge: -
(i) The offence under Section 375, as is clear from the
definition of relevant provision in compartment (A),
C could be committed against a woman. The situation
was sought to be changed and made gender neutral
in compartment (B). However, the earlier position
now stands restored as a result of provisions in
compartment (C)

D (ii) Before 03.02.2013 the sentence for an offence under
Section 376(1) could not be less than seven years
but the maximum sentence could be life imprisonment;
and for an offence under Section 376(2) the minimum
sentence could not be less than ten years while the
maximum sentence could be imprisonment for life.
E Section 376A dealt with cases where a man
committed non-consensual sexual intercourse with
his wife in certain situations.
(iii) As a result of the Ordinance, the sentences for
offences under Sections 376(1) and 376(2) were
F retained in the same fashion. However, a new
provision in the form of Section 376A was
incorporated under which, if while committing an
offence punishable under sub-section (1) or sub-
section (2) of Section 376, a person “inflicts an
injury which causes the death” of the victim, the
G
accused could be punished with rigorous
imprisonment for a term “which shall not be less
than 20 years but which may extend to
imprisonment for life, which shall mean the
remainder of that person’s natural life or with
H
SHATRUGHNA BABAN MESHRAM v. 41
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

death”. Thus, for the first time, Death Sentence A
could be imposed if a fatal injury was caused during
the commission of offence under sub- section (1) or
(2) of Section 376.
(iv) Though the provisions of the Amendment Act restored
the original non gender-neutral position vis-à-vis the B
victim, it made certain changes in sub-section (2) of
Section 376. Now, the punishment for the offence
could be rigorous imprisonment for not less than ten
years which could extend to imprisonment for life,
“which shall mean imprisonment for the remainder C
of that person’s natural life”. It was, thus,
statutorily made clear that the imprisonment for life
would mean till the last breath of that person’s natural
life.
(v) Similarly, by virtue of the Amendment Act, for the D
offence under Section 376A, the punishment could
not be less than 20 years which may extend to
imprisonment for life which shall mean
imprisonment for the remainder of that person’s
natural life, or with death.
E
14. In the instant case, the offence was committed on 11.02.2013
when the provisions of the Ordinance were in force. However, the
Amendment Act having been given retrospective effect from 03.02.2013,
the question arises whether imposition of life sentence for the offence
under Section 376(2) could “mean imprisonment for the remainder of
that person’s natural life”. F
In the present case, since the victim was about two and half years
of age at the time of incident and since it was the Ordinance which was
holding the field, going by the provisions of the Ordinance, Clauses (f),
(h) and (l) of Section 376(2) would get attracted. The comparable
provisions of Section 376(2) as amended by the Amendment Act would G
be, Clauses (f), (i) and (m) respectively. As the substantive penal
provisions under the Clauses (f), (h) and (l) as inserted by the Ordinance
and Clauses (f), (i) and (m) as inserted by the Amendment Act are
identical, no difficulty on that count is presented. But the sentence
prescribed by Section 376(2) a amended by the Amendment Act, has H
42 SUPREME COURT REPORTS [2020] 13 S.C.R.

A now, for the first time provided that the imprisonment for life “shall mean
imprisonment for the remainder of that person’s natural life”. This
provision comes with retrospective effect and in a situation where such
prescription was not available on the statute when the offence was
committed, the question arises whether such ex-post facto prescription
B would be consistent with the provisions of sub-Article (1) of Article 20
of the Constitution.
15. An imposition of life sentence simpliciter does not put any
restraints on the power of the executive to grant remission and
commutation in exercise of its statutory power, subject of course to Section
C 433A of the Code. But, a statutory prescription that it “shall mean the
remainder of that person’s life” will certainly restrain the executive from
exercising any such statutory power and to that extent the concerned
provision definitely prescribes a higher punishment ex-post facto. In the
process, the protection afforded by Article 20(1) of the Constitution would
stand negated. We must, therefore, declare that the punishment under
D Section 376(2) of the IPC in the present case cannot come with
stipulation that the life imprisonment “shall mean the remainder of that
person’s life”. Similar prescription in Section 6 of the POCSO Act, which
came by way of amendment in 2019, would not be applicable and the
governing provision for punishment for the offence under the POCSO
E Act must be taken to be the pre-amendment position as noted hereinabove.
16. However, in so far as the situation covered by Section 376A
of IPC as amended by the Amendment Act is concerned, substantively
identical situation was dealt with by Section 376A as amended by the
Ordinance and the prescription of sentence in Section 376A by the
F Amendment Act is identical to that prescribed by Section 376A as
amended by the Ordinance. Section 376A as amended by the Ordinance
being gender neutral so far as victim was concerned, naturally covered
cases where a victim was a woman. Thus, the ex-post facto effect
given to Section 376A by the Amendment Act from the day the Ordinance
was promulgated, would not in way be inconsistent with the provisions
G of sub-Article (1) of Article 20 of the Constitution.
17. Having considered the legal provisions involved in the matter,
we now turn to the submissions advanced by the learned counsel.
17.1 Ms. Sonia Mathur, learned Senior Advocate for the Appellant
submitted: -
H
SHATRUGHNA BABAN MESHRAM v. 43
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

A) While noting eight circumstances against the Appellant, certain A
circumstances were ignored by the Courts below, namely:-
(i) Both the lips of the victim showed clean cut margins indicating
that the injuries were suffered by a weapon and not by a human
bite. Further, odontology report was not furnished to substantiate
the theory that the injuries could be by a human bite and by the B
Appellant.
(ii) The vaginal, cervical, and anal swabs were sent for forensic
examination but none of these could be associated with the
Appellant.
These important facets pointing towards innocence of the C
Appellant were completely disregarded.
B) Each of the circumstances found against the Appellant, was
then dealt with as under :-
(i) PWs 1 and 2 were not independent witnesses to prove the first D
circumstance that the victim was taken away by the Appellant.
There were discrepancies in the statements of PWs 1 and 2. On
the other hand witnesses such as Shravan, Vitthal Ghodam and
Vikas Meshram were not examined at all. Even the wife of PW2
whose presence was referred to in the statement of PW2 under
Section 164 of the Code, was not examined. E
(ii) The fact that the victim was always in the custody of the
Appellant since the time she was taken away from PW2, was not
proved. PW9 was examined to establish this circumstance but
did not support the prosecution. Moreover, Vikas Meshram who
allegedly saw the victim with the Appellant was also not examined. F
(iii) The spot where the victim was found lying was not an isolated
place but was in the middle of the village surrounded by houses.
No independent witness was examined to corroborate the version
of PWs 1 and 2. Independent witnesses like Shravan, Vitthal
Ghodam and Vikas Meshram were not examined. The initial noting G
in the form of GD entry 40/13 (which was referred to in the FIR)
mentioned that the Appellant took away the victim to the jungle
and killed her.
(iv) The Appellant was examined at the time of arrest but the
medical evidence in that behalf was not placed on record. H
44 SUPREME COURT REPORTS [2020] 13 S.C.R.

A However, the prosecution chose to rely on the medical evidence
through the opinion of PW7 Dr. Lingawar.
(v) The spot panchnama was done at 8:30 a.m. next day i.e. more
than eight hours after the arrest of the Appellant. The chappals
found at the spot were not sent for any examination, nor was any
B evidence led to show that they belonged to the Appellant. Though,
the pieces of flesh seized from the spot were sent for forensic
examination, there was nothing on record to show that the flesh
was of a human being and of the victim.
(vi) The FSL report did not find any semen on any of the articles
C sent for examination and the finding rendered by the Courts below
in so far as 6th circumstance was thus erroneous.
(vii) There were discrepancies in the chain of custody of the clothes
referred to in the 7th circumstance. At the time of his arrest no
blood was noticed on the clothes of the Appellant. PW13, the
D Investigating officer accepted that he “did not find any suspicious
thing” with the Appellant. Even when the Appellant was examined
by PW7 Dr. Ulhas Digambar Lingawar, no blood was detected.
The seizure report also did not disclose any presence of blood
spots on the clothes of the Appellant. The trousers of the Appellant
were in police custody from 12.02.2013 till 14.02.2013 and no
E malkhana record or witnesses were produced.
It would, therefore, be highly unlikely that “moderate number of
blood stains ranging from 0.1 to 2 cm mostly on front portion”
found in the FSL report could have been missed out at the earlier
F stages. The evidence would therefore be unworthy of reliance.
Further, there was a requisition for videography of the post mortem
and yet no video-graphs were placed on record, in the absence of
which the material sent for DNA examination could not be relied
upon.
G (viii) The record certainly indicated that the victim was sexually
assaulted but the eighth circumstance did not by itself establish
that the Appellant was the author of crime.
C) The facts on record did not conclusively establish the guilt of
the Appellant. Since the case was based on circumstantial evidence,
H
SHATRUGHNA BABAN MESHRAM v. 45
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

going by the principles laid down by this Court, the case was not A
established at all.
17.2 While dealing with the question of sentence Ms. Mathur,
learned Senior Advocate submitted: -
I) The sentence of death having been passed on the same
day when the conviction order was pronounced, there was B
non-compliance of Section 235(2) of the Code and as laid
down by this Court in Allauddin Mian v. State of Bihar11,
Malkiat Singh and others v. State of Punjab12 and Ajay
Pandit v. State of Maharashtra13, the infraction on that
count was sufficient to consider commutation of the C
sentence of death to that of life imprisonment.
II) The instant case being based on circumstantial evidence,
as held by this Court in Bishnu Prasad Sinha v. State of
Assam14, Sebastian @ Chevithiyan v. State of Kerala15,
Purna Chandra Kusal v. State of Orissa16 and Kalu Khan D
v. State of Rajasthan17, no death sentence be awarded
and the appropriate punishment could be life sentence.
III) Relying on the decisions of this Court in Ashok Debabarma
@ Achak Debbarma v. State of Tripura18, Sudam v. State
of Maharashtra 19 and Ravishankar alias Baba E
Vishwakarma vs. State of Madhya Pradesh20, it was
submitted that even if the circumstances on record were
sufficient to record conviction against the Appellant, there
were gaps in the evidence and the benefit of “residual doubt”
ought to be extended in favour of the Appellant.
F
IV) In terms of law laid down by this Court in Rajesh Kumar
v. State through Government of NCT of Delhi 21, the
11
(1989) 3 SCC 5 para 10
12
(1991) 4 SCC 341 para 18
13
(2012) 8 SCC 43 para 47
14
(2007) 11 SCC 467 para 55 G
15
(2010) 1 SCC 58 para 17
16
(2011) 15 SCC 352 para 7
17
(2015) 16 SCC 492 paras 16, 23 and 31
18
(2014) 4 SCC 747
19
(2019) 9 SCC 388
20
(2019) 9 SCC 689
21
(2011) 13 SCC 706 paras 72 to 74 H
46 SUPREME COURT REPORTS [2020] 13 S.C.R.

A burden was on the prosecution to rule out the possibility of
reformation of the Appellant and that as held in Mohinder
Singh v. State of Punjab22, the exclusion of possibility of
reformation could only be on the basis of evidence led by
the prosecution.
B V) The Appellant completed Bachelors Preparatory
programme (BPP) from Indira Gandhi National Open
University in 2017 while in prison and is presently pursuing
Bachelors Degree course in Arts.
VI) The Appellant was about 21 years of age at the time of
C incident and as held by this Court in Bachan Singh v. State
of Punjab8, Rameshbhai Chandubhai Rathod (2) v. State
of Gujarat23, Amit v. State of U.P.24 and Sunil v. State of
M.P.25, the young age of the Appellant at the time of incident
is a factor in his favour.

D VII) The socio-economic condition of the Appellant showed that
he was a labourer and belonged to Scheduled Tribes which
again would be a factor in his favour as held by this Court
in Sunil Damodar Gaikwad v. State of Maharashtra26.
VIII) The family of the Appellant being in touch with the him,
E there is a strong probability of rehabilitation as observed by
this Court in Mohinder Singh v. State of Punjab22.
IX) Further, as there were no criminal antecedents as has been
ruled by this Court in Surendra Pal Shivbalak Pal v. State
of Gujarat 27 , Mahesh Dhanaji Shinde v. State of
F Maharashtra.28, Santosh Kumar Singh v. State of M.P.29
and Shyam Singh @ Bhima v. State of Madhya Pradesh30,
due weightage ought to be given in favour of the Appellant.
22
(2013) 3 SCC 294, paras 22, 23
23
(2011) 2 SCC 764 paras 8 and 10
24
G (2012) 4 SCC 107 para 22
25
(2017) 4 SCC 393 para 12
26
(2014) 1 SCC 129 para 20
27
(2005) 3 SCC 127 para 13
28
(2014) 4 SCC 292 paras 38 and 39
29
(2014) 12 SCC 650 para 30
30
(2017) 11 SCC 265 paras 6 and 8
H
SHATRUGHNA BABAN MESHRAM v. 47
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

17.3 Mr. Sushil Karanjkar, learned Advocate for the State A
submitted that all the aforesaid eight circumstances were individually
established beyond any doubt and they collectively formed a clear and
consistent chain ruling out every other hypothesis except the guilt of the
Appellant. It was submitted that as held by this Court in B. A. Umesh
vs. Registrar General, High Court of Karnataka31 and subsequent
B
cases, the mere fact that the death sentence was pronounced on the
same day when the conviction was recorded, by itself would not be
sufficient to commute the death sentence to life imprisonment; and that
the Appellant had sufficient opportunity to advance submissions on the
issue of sentence which opportunity was availed of. He also submitted
that the circumstances having been established beyond any shadow of C
doubt there was no room for any “residual doubt”. In his submission, the
factors that the crime in the instant case was gruesome and diabolical,
where two and a half year old girl was subjected to sexual assault and
the manner in which it was committed, were by themselves weighty and
sufficient to tilt the balance against the Appellant and that as laid down
D
by this Court in Vasanta Sampat Dupare v. State of Maharashtra6, in
review arising therefrom (in Vasanta Sampat Dupare v. State of
Maharashtra32), and in Mukesh and Another v. State ( NCT of Delhi)
and Others33, the extreme depravity and the barbaric manner in which
the crime was committed would clearly outweigh any mitigating
circumstance advanced on behalf of the Appellant. E
18. We shall first consider the evidence on record to see whether
the guilt of the Appellant is conclusively established on the strength of
the material on record; and whether the circumstances on record form a
clear and consistent chain to rule out every other hypothesis except the
guilt of the Appellant. The law on the point is clear from the following F
observations of this Court in Sharad Birdhichand Sarda vs. State of
Maharashtra34,
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established: G

31
(2017) 4 SCC 124
32
33
(2017) 6 SCC 631
(2017) 6 SCC 1
34
(1984) 4 SCC 116 H
48 SUPREME COURT REPORTS [2020] 13 S.C.R.

A (1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal distinction
B between “may be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra35 where the observations were made:
“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
C the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.”
(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
D 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
E
(5) there must be a chain of evidence so complete 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.”
F
These principles have since then been followed consistently.
18.1 According to the prosecution, on the day in question at about
7:30 p.m. when the victim was with her grandfather, on the pretext that
the father of the victim had asked the Appellant to bring the victim, the
Appellant, who was maternal uncle of the victim, took her away. This
G part of the evidence is conclusively established through the testimony of
PW2, the grandfather. This version finds mention in the FIR which was
recorded within few hours of the incident and in the statement of PW2
recorded under Section 164 of the Code. There is nothing on record to
35
(1973) 2 SCC 793
H
SHATRUGHNA BABAN MESHRAM v. 49
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

doubt the veracity of said version. It is true that some other witnesses A
were not examined by the prosecution but the strength of the testimony
of PW2 does not get diminished on any count nor can it be said that his
testimony loses its weight because the witness was the grandfather of
the victim. The version coming through this witness is cogent, consistent
and also figured in prompt reporting of the FIR. We have, therefore, no
B
hesitation in accepting that the first circumstance as noted by the Trial
Court stands conclusively established.
18.2 As deposed by PWs 1 and 2, the Appellant was found by the
side of the victim at the spot i.e. in the premises of Anganwadi. The
victim was having various injuries whereafter she was taken for medical
attention. Soon after the incident, the Appellant was also medically C
examined and Report Exbt. 46 showed injury on his body. Even if PW9
had turned hostile and some other witnesses were not examined, the
fact that the victim was always in the custody of Appellant till she was
found at the spot alongside the Appellant is quite clear. The proximity in
terms of time and the promptitude in reporting are crucial factors and D
the evidence in that behalf is completely trustworthy. Thus, in our view,
the second and third circumstances are also fully established.
18.3 Soon after his arrest, the Appellant was produced for medical
examination before PW 7 Dr. Ulhas Digambar Lingawar, who found
injury on private parts of the Appellant. The approximate time of said E
injury as given in the opinion Exh.46 is consistent with the case of
prosecution. The submission however is that the Appellant was also
examined by another medical professional and that report was not placed
on record. The reference to the medical examination of the Appellant in
terms of Section 53A of the Code was not to any other medical
professional but to PW 7 Dr. Lingawar. No explanation, not even a F
suggestion came from the Appellant how there could be an injury on his
body as noticed in Report Exh.46. Thus, the 4th circumstance also stands
fully established.
18.4 While considering the 5th circumstance, it must be stated
that as per record, the chappals were not proved to be that of the G
Appellant and the pieces of flesh found at the spot of incident were also
not proved to be that of a human being. To that extent, 5th circumstance
was not proved at all. However, the fact that the pant of the victim was
found at the spot of incident is well established on record, and the 5th
H
50 SUPREME COURT REPORTS [2020] 13 S.C.R.

A circumstance must be taken to be proved only with respect to the
recovery of the pant of the victim.
18.5 There is nothing on record to show that the stains of semen
found on clothing referred to in 6th circumstance, were medically proved
to be that of, or could be associated with the Appellant. The 6th
B circumstance cannot therefore be taken to be pointing against the
Appellant.
18.6 In terms of Chemical Analyser’s Report Ext.54, the blood
found on the trousers of the Appellant was that of the victim. This fact is
completely established. The submission however, is:-
C (a) Nothing suspicious was found by PW13 the Investigating
Officer with the Appellant at the time of his arrest; and
(b) PW7 Dr. Lingawar had not noticed any blood stains on the
trousers of the Appellant at the time of his medical
examination;
D
(c) No malkhana report or evidence was produced on record
to state that the articles remained in proper custody and in
sealed condition.
The answer given by the Investigating Officer cannot be stretched
to say that there were no blood stains on his trousers at the time of
E
arrest. The medical opinion was obtained to consider whether there were
any injuries on the private parts of the Appellant and whether he was
capable of having sexual intercourse. The facts on record show that the
articles were sent for FSL examination at the earliest.
The Appellant was represented by a counsel of standing in the
F
Trial Court. The theory that the blood spots on the trousers of the Appellant
were subsequently planted was not even developed in the cross
examination of the concerned witnesses.
Given the quick succession of steps in investigation, including the
medical examination and seizure of the clothes of the Appellant, we do
G not find any infirmity. We, therefore, accept that the 7th circumstance
stands fully established.
18.7 It is a matter of record that as per Post-Mortem report and
medical opinion, there was forceful sexual assault on the victim and her

H
SHATRUGHNA BABAN MESHRAM v. 51
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

death was caused due to injury No.17 which was in the nature of multiple A
lacerations over vaginal and anal region; and merging of vaginal and
anal orifices.
The 8th circumstance must therefore be taken to be proved fully
except to the extent that said circumstance makes reference to pieces
of flesh found at the spot of incident. B
19. Do the circumstances established on record satisfy the
requirements spelt out in the decision of this Court in Sharad
Birdhichand Sarda34 is the next question for consideration.
The established circumstances show:-
C
a) The victim was in the custody of the Appellant, from the
time she was taken from her grandfather till she was found
lying in the premises of Anganwadi; where the Appellant
was also found lying next to her.
b) The victim, who was hale and hearty when she was taken D
by the Appellant, had number of injuries on her body when
she was found next to the Appellant.
c) The injuries on the body of the victim show that she was
abused and sexually exploited.
d) The sexual assault was so forceful that the victim, a two- E
and-a- half-year-old girl suffered, among other injuries,
Injury No.17.
e) Injury No.17, as described above, was so severe that there
was merging of vaginal and anal orifices.
f) The victim died because of Injury No.17. F

g) The Appellant had an injury on his private parts
corresponding to the period when the victim was in his
custody.
h) The Appellant was found to be capable of having sexual G
intercourse.
i) The trousers of the Appellant had blood stains, the DNA
profiles of which, matched with that of the blood of the
victim.
H
52 SUPREME COURT REPORTS [2020] 13 S.C.R.

A These circumstances at serial numbers a) to i) stand proved
beyond any doubt and by themselves constitute a conclusive and
consistent chain excluding every other hypothesis except the guilt of the
Appellant.
20. We must at this stage deal with the submission of Ms. Mathur,
B learned Senior Advocate about non-consideration of certain
circumstances by the Courts below.
It is true that the injuries on the lips of the victim showed that the
margins were clean cut and given the nature of evidence in that behalf,
it cannot be said with certainty that those injuries could be taken to be
C the result of human bites. But the other injuries on the body of the victim
were definitely by human bites and as such the absence of clarity with
regard to the injuries on the lips does not render the case of the prosecution
doubtful in any manner.
Again, the absence of association of vaginal, cervical and anal
D swabs with the Appellant does not in any way diminish the strength of
evidence against the Appellant.
21. The circumstances proved on record are not only conclusive
in nature but completely support the case of the prosecution and are
consistent with only one hypothesis and that is the guilt of the Appellant.
E They form a chain, so complete, consistent and clear, that no room for
doubt or ground arises pointing towards innocence of the Appellant. It is,
therefore, established beyond any shadow of doubt that the Appellant
committed the acts of rape and sexual assault upon the victim and that
injury no.17 was the cause of death of the victim.
F 22. The Appellant is thus guilty of having committed offences
punishable under clauses (f), (i) and (m) of sub-section (2) of Section
376 of IPC; and also, under clauses (j) and (m) of Section 5 read with
Section 6 of the POCSO Act, (as it stood before it was amended by Act
25 of 2019). Since according to medical opinion, the death was because
of injury No.17, the Appellant is also guilty of having committed offence
G
punishable under Section 376A of IPC.
23. The injuries suffered by the victim were directly as a result of
sexual assault inflicted upon her. But the medical evidence does not
disclose that either before or after the commission of sexual assault, any
H
SHATRUGHNA BABAN MESHRAM v. 53
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

other injury was consciously caused with the intention to extinguish the A
life of the victim. Injury No.17 which was the cause of death was suffered
by the victim during the course of commission of sexual assault upon
her. The questions that arise, therefore, are whether such an act on part
of the Appellant comes within the parameters of Sections 299 and 300
of IPC and whether he is guilty of having committed culpable homicide
B
amounting to murder.
24. According to clause fourthly under Section 300 of IPC, the
offence may come under the category of culpable homicide amounting
to murder “if the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury
C
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid”.
The interplay between clauses of Sections 299 and 300 of the
IPC was considered by this Court in State of Andhra Pradesh vs.
Rayavarapu Punnayya and Another36 as under:- D
“11. The principal question that falls to be considered in this appeal
is, whether the offence disclosed by the facts and circumstances
established by the prosecution against the respondent, is “murder”
or “culpable homicide” not amounting to murder.
12. In the scheme of the Penal Code, “culpable homicide” is genus E
and “murder” its specie. All “murder” is “culpable homicide” but
not vice-versa. Speaking generally, “culpable homicide” sans
“special characteristics of murder”, is “culpable homicide not
amounting to murder”. For the purpose of fixing punishment,
proportionate to the gravity of this generic offence, the Code F
practically recognises three degrees of culpable homicide. The
first is, what may be called, “culpable homicide of the first degree”.
This is the greatest form of culpable homicide, which is defined in
Section 300 as “murder”. The second may be termed as “culpable
homicide of the second degree”. This is punishable under the first G
part of Section 304. Then, there is “culpable homicide of the third
degree”. This is the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among the

36
(1976) 4 SCC 382
H
54 SUPREME COURT REPORTS [2020] 13 S.C.R.

A punishments provided for the three grades. Culpable homicide of
this degree is punishable under the second part of Section 304.
13. The academic distinction between “murder” and “culpable
homicide not amounting to murder” has vexed the courts for more
than a century. The confusion is caused, if courts losing sight of
B the true scope and meaning of the terms used by the legislature in
these sections, allow themselves to be drawn into minutae
abstractions. The safest way of approach to the interpretation
and application of these provisions seems to be to keep in focus
the keywords used in the various clauses of Sections 299 and
300. The following comparative table will be helpful in appreciating
C
the points of distinction between the two offences.
14. Clause (b) of Section 299 corresponds with clauses (2) and
(3) of Section 300. The distinguishing feature of the mens rea
requisite under clause (2) is the knowledge possessed by the
offender regarding the particular victim being in such a peculiar
D condition or state of health that the internal harm caused to him is
likely to be fatal, notwithstanding the fact that such harm would
not in the ordinary way of nature be sufficient to cause death of a
person in normal health or condition. It is noteworthy that the
“intention to cause death” is not an essential requirement of clause
E (2). Only the intention of causing the bodily injury coupled with
the offender’s knowledge of the likelihood of such injury causing
the death of the particular victim, is sufficient to bring the killing
within the ambit of this clause. This aspect of clause (2) is borne
out by Illustration (b) appended to Section 300.
F
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which the culpable homicide is murder if the
death is caused is done — act by which the death is caused is
G done —
INTENTION

(a) With the intention of causing (1) With the intention of causing
death; or death; or
H
SHATRUGHNA BABAN MESHRAM v. 55
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

(b) With the intention of causing (2) With the intention of causing A
such bodily injury as is likely to such bodily injury as the offender
cause death; or knows to be likely to cause the
death of the person to whom the
harm is caused; or
(3) With the intention of causing B
bodily injury to any person and the
bodily injury intended to be inflicted
is sufficient in the ordinary course
of nature to cause death; or
KNOWLEDGE C
(c) With the knowledge that the act (4) With the knowledge that the act
is likely to cause death is so imminently dangerous that it
must in all probability cause
death or such bodily injury as is
likely to cause death, and without D
any excuse for incurring the risk of
causing death or suchinjury as is
mentioned above.
15. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases falling E
under clause (2) of Section 300 can be where the assailant causes
death by a fist blow intentionally given knowing that the victim is
suffering from an enlarged liver, or enlarged spleen or diseased
heart and such blow is likely to cause death of that particular
person as a result of the rupture of the liver, or spleen or the F
failure of the heart, as the case may be. If the assailant had no
such knowledge about the disease or special frailty of the victim,
nor an intention to cause death or bodily injury sufficient in the
ordinary course of nature to cause death, the offence will not be
murder, even if the injury which caused the death, was intentionally
given. G
16. In clause (3) of Section 300, instead of the words “likely to
cause death” occurring in the corresponding clause (b) of Section
299, the words “sufficient in the ordinary course of nature” have
been used. Obviously, the distinction lies between a bodily injury
likely to cause death and a bodily injury sufficient in the ordinary H
56 SUPREME COURT REPORTS [2020] 13 S.C.R.

A course of nature to cause death. The distinction is fine but real,
and, if overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting
from the intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether a culpable
B
homicide is of the gravest, medium or the lowest degree. The
word “likely” in clause (b) of Section 299 conveys the sense of
“probable” as distinguished from a mere possibility. The words
“bodily injury … sufficient in the ordinary course of nature to
cause death” mean that death will be the “most probable” result
C of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the
offender intended to cause death, so long as the death ensues
from the intentional bodily injury or injuries sufficient to cause
death in the ordinary course of nature. Rajwant v. State of
D Kerala37 is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab38 Vivian Bose, J. speaking
for this Court, explained the meaning and scope of clause (3),
thus (at p. 1500):
“The prosecution must prove the following facts before it
E can bring a case under Section 300, ‘thirdly’. First, it must
establish quite objectively, that a bodily injury is present;
secondly the nature of the injury must be proved. These
are purely objective investigations. It must be proved that
there was an intention to inflict that particular injury, that is
F to say, that it was not accidental or unintentional or that
some other kind of injury was intended. Once these three
elements are proved to be present, the enquiry proceeds
further, and fourthly it must be proved that the injury of the
type just described made up of the three elements set out
above was sufficient to cause death in the ordinary course
G of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the
offender.”

37
AIR 1966 SC 1874
38
H AIR 1958 SC 465
SHATRUGHNA BABAN MESHRAM v. 57
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

19. Thus according to the rule laid down in Virsa Singh case38 A
of even if the intention of accused was limited to the infliction of
a bodily injury sufficient to cause death in the ordinary course of
nature, and did not extend to the intention of causing death, the
offence would be “murder”. Illustration (c) appended to Section
300 clearly brings out this point.
B
20. Clause (c) of Section 299 and clause (4) of Section 300 both
require knowledge of the probability of the act causing death. It is
not necessary for the purpose of this case to dilate much on the
distinction between these corresponding clauses. It will be sufficient
to say that clause (4) of Section 300 would be applicable where
the knowledge of the offender as to the probability of death of a C
person or persons in general — as distinguished from a particular
person or persons — being caused from his imminently dangerous
act, approximates to a practical certainty. Such knowledge on the
part of the offender must be of the highest degree of probability,
the act having been committed by the offender without any excuse D
for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court
is confronted with the question whether the offence is “murder”
or “culpable homicide not amounting to murder”, on the facts of a
case, it will be convenient for it to approach the problem in three E
stages. The question to be considered at the first stage would be,
whether the accused has done an act by doing which he has caused
the death of another. Proof of such causal connection between
the act of the accused and the death, leads to the second stage
for considering whether that act of the accused amounts to
“culpable homicide” as defined in Section 299. If the answer to F
this question is prima facie found in the affirmative, the stage for
considering the operation of Section 300 of the Penal Code, is
reached. This is the stage at which the court should determine
whether the facts proved by the prosecution bring the case within
the ambit of any of the four clauses of the definition of “murder” G
contained in Section 300. If the answer to this question is in the
negative the offence would be “culpable homicide not amounting
to murder”, punishable under the first or the second part of
Section 304, depending, respectively, on whether the second or

H
58 SUPREME COURT REPORTS [2020] 13 S.C.R.

A the third clause of Section 299 is applicable. If this question is
found in the positive, but the case comes within any of the
exceptions enumerated in Section 300, the offence would still be
“culpable homicide not amounting to murder”, punishable under
the first part of Section 304, of the Penal Code.
B 22. The above are only broad guidelines and not cast-iron
imperatives. In most cases, their observance will facilitate the
task of the court. But sometimes the facts are so intertwined and
the second and the third stages so telescoped into each other, that
it may not be convenient to give a separate treatment to the matters
involved in the second and third stages.”
C
25. We may now consider the cases where the death may not
have been intended but clause fourthly of Section 300 of IPC was applied
to hold the accused guilty of offence of culpable homicide amounting to
murder.

D A) In State of Madhya Pradesh vs. Ram Prasad39, a woman
was set afire by the accused after pouring kerosene oil on her. A bench
of three Judges of this Court dealt with the matter as under:-
“The question then arises, what was the offence which Ram
Prasad can be said to have committed? The offence of causing
E injury by burning is a broad spectrum which runs from s. 324
causing simple injury by burning through s. 326 namely, causing
grievous injury by burning to the two major offences, namely,
culpable homicide not amounting to murder and even murder itself.
The Sessions Judge chose the lowest end of the spectrum which
is surprising enough, because the burns were so extensive that
F they were certainly grievous by all account. The High Court placed
the offence a little higher, namely, culpable homicide not amounting
to murder. We think that the matter goes a little further than this.
As death has been caused the question has to be considered in
the light of homicide to determine whether the action of Ram
G Prasad falls within culpable homicide not amounting to murder or
the higher offence of murder itself.
Here we see that death has actually been caused by the criminal
act; in other words, there has been homicide and since it is not

39
H (1968) 2 SCR 522
SHATRUGHNA BABAN MESHRAM v. 59
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

accidental or suicidal death, responsibility for the homicide, in the A
absence of any exceptions or extenuating circumstances, must
be borne by the person who caused it. The High Court has
apparently stopped short by holding that this was a case of culpable
homicide not amounting to murder. The question is whether the
offence falls in any of the clauses of s. 300 Indian Penal Code. In
B
this connection it is difficult to say that Ram Prasad intended causing
the death of Mst. Rajji although it might well be the truth. That he
set fire to her clothes after pouring kerosene oil is a patent fact
and therefore the matter has to be viewed not only with regard to
the firstly of s. 300, but all the other clauses also. We do not wish
to consider the second and the third clauses, because the question C
then would arise what was the extent of the injury which Ram
Prasad intended to cause or knew would be caused to Mst. Rajji.
That would be a matter of speculation. In our opinion, this matter
can be disposed of with reference to clause fourthly of s. 300.
That clause reads as follows :-
D
“. . . . .culpable homicide is murder. if the person committing
the act knows that is so imminently dangerous that it must in
all probability, cause death or such bodily injury as is likely to
cause death, and commits such act without any excuse for
incurring the risk or causing death or such injury as aforesaid.”
E
It is obvious that there was no excuse for Ram Prasad to have
taken the risk of causing the death or such bodily injury as was
likely to cause death. The question therefore arises whether Ram
Prasad knew that his act was so imminently dangerous that it
must in all probability cause death or such bodily injury as is likely
to cause death, so as to bring the matter within the clause. Although F
clause fourthly is usually invoked in those cases where there is
no intention to cause the death of any particular person (as the
illustration shows) the clause may on its terms be used in those
cases where there is such callousness towards the result and the
risk taken is such that it may be stated that the person knows that G
the act is likely to cause death or such bodily injury as is likely to
cause death. In the present case, Ram Prasad poured kerosene
upon the clothes of Mst. Rajji and set fire to those clothes. It is
obvious that such fire spreads rapidly and burns extensively. No
special knowledge is needed to know that one may cause death
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60 SUPREME COURT REPORTS [2020] 13 S.C.R.

A by burning if he sets fire to the clothes of a person. Therefore, it
is obvious that Ram Prasad must have known that he was running
the risk of causing the death of Rajji or such bodily injury as was
likely to cause her death. As he had no excuse for incurring that
risk, the offence must be taken to fall within fourthly of s. 300,
Indian Penal Code. In other words, his offence was culpable
B
homicide amounting to murder even if he did not intend causing
the death of Mst. Rajji. He committed an act so imminently
dangerous that it was in all probability likely to cause death or to
result in an injury that was likely to cause death. We are accordingly
of the opinion that the High Court and the Sessions Judge were
C both wrong in holding that the offence did not fall within murder.”
(Emphasis supplied)
B) In a similar fact situation, another bench of three Judges of
this Court, in Santosh S/o Shankar Pawar vs. State of Maharashtra40
observed,
D
“13. Even assuming that the accused had no intention to cause
the death of the deceased, the act of the accused falls under
clause Fourthly of Section 300 IPC that is the act of causing injury
so imminently dangerous where it will in all probability cause death.
Any person of average intelligence would have the knowledge
E that pouring of kerosene and setting her on fire by throwing a
lighted matchstick is so imminently dangerous that in all probability
such an act would cause injuries causing death.”
C) The principle in Santosh40 was adopted in Suraj Jagannath
Jadhav vs. State of Maharashtra41.
F
D) In State of Haryana vs. Krishan and Another42, where 36
persons had died after consuming spurious liquor, this Court set aside
the acquittal ordered by the High Court and restored the order of
conviction under Section 302 IPC passed by the trial Court. It was
observed:-
G
“33. Insofar as argument predicated on Section 120-B IPC is
concerned, even if we proceed on the basis that charge of
40
(2015) 7 SCC 641
41
(2020) 2 SCC 693
42
(2017) 8 SCC 204
H
SHATRUGHNA BABAN MESHRAM v. 61
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

conspiracy is not proved, it would be suffice to observe that A
adequate evidence is produced showing the culpability of the
respondents, individually. Once it is shown that the spurious liquor
was sold from the local vends belonging to the respondents coupled
with the fact that after this tragedy struck, the respondents even
tried to destroy remaining bottles clearly establishes that the
B
respondents had full knowledge of the fact that the bottles contain
substance methyl and also had full knowledge about the disastrous
consequences thereof which would bring their case within the
four corners of Section 300 Fourthly. The respondents cannot be
treated as mere cat’s paw and naive. They have exploited the
resilient nature of bucolic and rustic villagers.” C
26. We may now consider some of the decisions of this Court in
which deaths had occurred because of injuries sustained by the victims
during sexual assault on them.
26.1 In State of Orissa vs. Dibakar Naik and Others43, a bench
of two Judges of this Court dealt with a case where a lady of 23 years of D
age was gang raped and lost her life. The concerned accused were
convicted inter alia under Sections 376 and 302 read with Section 34 of
IPC by the trial Court. However, their conviction and sentence were set
aside by the High Court. The appeals preferred by the State were partly
allowed and while convicting four accused under Sections 376 and 304 E
II IPC, it was observed by this Court:-
“23. However, the nature of the injuries inflicted upon the person
of the deceased indicate that the accused persons had not intended
to cause her death. Dr Indramani Jena (PW 21) who conducted
the post-mortem over the dead body of Chhabirani had found the F
following injuries:
“(1) One swelling 1” diameter irregularly circular over right
mastoid process.
(2) One swelling (which was black in colour) on the upper
half of right breast 2" in diameter irregular circular. G
(3) On dissection I found the following:
The swelling in right mastoid area had underlying
haematoma. There was fracture of right fourth rib under
43
(2002) 5 SCC 323
H
62 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Injury 2. Right-side chest was filled with blood of about
one litre. The right lung was displaced and was injured
in anterior surface by fractured rib. Heart chamber was
empty, that is, there was no blood.
(4) Stomach was empty.
B (5) There were two ecchymosis of ¼” in diameter each on
posterior vaginal wall. The injuries were in 5 o’clock
and 7 o’clock positions.
(6) On examination of the vaginal smear I found dead
spermatozoa and epithelial cells.
C
(7) By the time of my examination, there was process of
decomposition. Skin denudation had started. Tongue was
protruded and bitten. There was bleeding from right
angle of mouth and both ears. Abdomen was protruded
due to foul gases. Death was within 48 hours of the
D PM examination.”
He has opined that all injuries were ante-mortem. Death was due
to injuries causing internal haemorrhage. There were signs of
forcible sexual intercourse. It was a case of violent type of
intercourse. The injuries found were not in normal course of sexual
E intercourse. Any violent assault even without rape could cause
Injuries 1 and 2 and the corresponding internal injuries. Injury 2
with corresponding internal injury was sufficient to cause the death.
24. Whoever causes death by doing an act with the intention of
causing death or with the intention of causing such bodily injury
F as is likely to cause death or with the knowledge that he is likely,
by such act, to cause death, is responsible for the commission of
the offence of culpable homicide. Culpable homicide is murder if
the act by which the death is caused is done with the intention of
causing death and is not covered by any of the exceptions of
Section 300 of the Indian Penal Code. As already noticed, in this
G
case there is no evidence to show that the aforesaid accused
persons proved to have been involved in the occurrence, had
intended to cause the offence of murder within the meaning of
Section 300 as punishable under Section 302 of the Indian Penal
Code. However, on proof of the commission of offence of gang
H
SHATRUGHNA BABAN MESHRAM v. 63
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

rape found to have been committed in a violent manner, they are A
assumed to be having the knowledge that by their action it was
likely that the deceased would have died. The aforesaid accused
are, therefore, guilty of the offence, punishable under Part II of
Section 304 of the Indian Penal Code. While acquitting the other
respondents we hold Birabar Mania (A-5), Babaji Mania (A-6),
B
Bhira Behera @ Baba Tanti (A-7) and Madha Tanti @
Madhabananda Parmanik (A-11) guilty for the commission of
offences punishable under Section 304 Part II read with Section
34 of the Indian Penal Code besides the commission of offence
punishable under Section 376 read with Section 34 of the Indian
Penal Code. The conviction and sentence awarded by the trial C
court to Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera
@ Baba Tanti (A- 7) and Madha Tanti @ Madhabananda
Parmanik (A-11) under Section 376 of the Indian Penal Code is
upheld. On proof of the offence punishable under Section 304
Part II read with Section 34 IPC, the aforesaid accused persons
D
are sentenced to undergo rigorous imprisonment for 10 years.
Both the sentences shall run concurrently”.
(Emphasis supplied)
Though it was found that the offence of gang rape was committed
in a violent manner and that the offenders must be having the knowledge E
that it was likely that by their action the victim would die, the accused
were not convicted of the offence of culpable homicide amounting to
murder.
26.2 Similarly, in State, Govt of NCT of Delhi vs. Sunil and
Another44, a girl of 4 years of age was raped by two accused and she F
lost her life as a result of injuries sustained during sexual assault. A
bench of two Judges of this Court observed:-
“23. Thus on consideration of the entire evidence in this case we
have no doubt that the trial court had come to the correct conclusion
that the two respondents were the rapists who subjected Anuradha G
to such savage ravishment. The Division Bench of the High Court
has grossly erred in interfering with such a correct conclusion
made by the trial court as the reasons adopted by the High Court
for such interference are very tenuous. Nonetheless, it is difficult
44
(2001) 1 SCC 652 H
64 SUPREME COURT REPORTS [2020] 13 S.C.R.

A to enter upon a finding that the respondents are equally guilty of
murder of Anuradha. In the opinion of PW 1 doctor the child died
“due to intracranial damage consequent upon surface force impact
to the head”. The said opinion was made with reference to the
subdural haematoma which resulted in subarachnoid haemorrhage.
Such a consequence happened during the course of the violent
B
ravishment committed by either both or by one of the rapists without
possibly having any intention or even knowledge that their action
would produce any such injury. Even so, the rapists cannot disclaim
knowledge that the acts done by them on a little infant of such a
tender age were likely to cause its death. Hence they cannot
C escape conviction from the offence of culpable homicide not
amounting to murder.
24. In the result, we set aside the impugned judgment of the High
Court. We restore the conviction passed by the trial court under
Sections 376 and 377 read with Section 34 IPC. The trial court
D awarded the maximum sentence to the respondents under the
said counts i.e. imprisonment for life. The fact-situation in this
case does not justify any reduction of that sentence. We also
convict the respondents under Section 304 Part II, read with
Section 34 IPC though it is unnecessary to award any sentence
thereunder in view of the sentence of imprisonment for life
E awarded to the respondents under the other two counts.”
26.3 In Amrit Singh vs. State of Punjab45, a girl of 7-8 years died
as a result of excessive bleeding from her private parts because of sexual
assault on her. The accused was found guilty of offences under Sections
302 and 376 and was awarded death sentence. A bench of two Judges
F of this Court observed:-
“21. The opinion of the learned trial Judge as also the High Court
that the appellant being aged about 31 years and not suffering
from any disease, was in a dominating position and might have
got her mouth gagged cannot be held to be irrelevant. Some marks
G of violence not only on the neck but also on her mouth were found.
Submission of Mr Agarwal, however, that the appellant might not
have an intention to kill the deceased, thus, may have some force.
The death occurred not as a result of strangulation but because of
excessive bleeding. The deceased had bleed half a litre of blood.
45
H (2006) 12 SCC 79
SHATRUGHNA BABAN MESHRAM v. 65
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Dr. Reshamchand Singh, PW 1 did not state that injury on the A
neck could have contributed to her death. The death occurred,
therefore, as a consequence of and not because of any specific
overt act on the part of the appellant.”
This Court commuted the sentence to life imprisonment.
26.4 A bench of two Judges of this Court relied upon the decision B
in State of Orissa v. Dibakar Naik43 and affirmed the conviction and
sentence under Sections 376 and 304 II IPC in State of AP v. T.
Prasanna Kumar46.
26.5 On the other hand, in following four cases, two Judge benches
of this Court affirmed the conviction and sentence under Sections 302 C
and 376 IPC where the victims, aged between 1½ to 8 years had lost
their lives as a result of injuries sustained during sexual assault on them.
i) Mohd. Chaman vs. State (NCT of Delhi)47
Age of the Victim : 1½ years D
48
ii) Ramesh Harijan vs. State of Uttar Pradesh
Age of the Victim : 5-6 years
iii) Ram Deo Prasad vs. State of Bihar49
Age of the Victim : 4 years E
iv) Ramesh vs. State through Inspector of Police50
Age of the Victim : 8 years
However, there is no discussion on the point in these cases.
26.6 Recently, a three Judge bench of this Court in Dattatraya F
Ambo Rokade vs. The State of Maharashtra51 had an occasion to
consider where a girl of 5 years was subjected to sexual assault. She
died as a result of injuries 1 to 5 suffered during the course of sexual
assault on her. The conviction of the accused inter alia under Sections
G
46
(2003) 1 ACR 627 (SC) = JT 2002 (7) SC 635
47
(2001) 2 SCC 28
48
(2012) 5 SCC 777
49
(2013) 7 SCC 725
50
(2014) 9 SCC 392
51
(2019) 13 SCALE 187
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66 SUPREME COURT REPORTS [2020] 13 S.C.R.

A 302, 376(2)(f) of IPC and under the provisions of POCSO Act was
affirmed by this Court and it was observed:-
“125. As a mature man, over fifty years of age, the Accused-
Appellant should have known that the rape of a five year old
child by an adult was dangerous and could lead to such injuries,
B as was in all probability likely to cause death.”
27. The guiding principles were summed up in State of Madhya
Pradesh v. Ram Prasad39 to the effect that even if there be no intention
to cause death, “if there is such callousness towards the result and the
risk taken is such that it may be stated that the person knows that the act
C is likely to cause death or such bodily injury as is likely to cause death”
clause fourthly of Section 300 IPC will get attracted and that the offender
must be taken to have known that he was running the risk of causing the
death or such bodily injury as was likely to cause the death of the victim.
Same principle is discernible from the decision of this Court in Dattatraya
D Ambo Rokade v. State of Maharashtra51.
28. Considering the age of the victim in the present case, the
accused must have known the consequence that his sexual assault on a
child of 2 ½ years would cause death or such bodily injury as was likely
to cause her death. The instant matter thus comes within the parameters
of clause fourthly to Section 300 IPC and the question posed at the
E
beginning of the discussion on this issue must be answered against the
Appellant. The Appellant is therefore guilty of having committed the
offence of culpable homicide amounting to murder.
29. It must be observed at this stage that the decisions of this
Court referred to in paragraphs 26.1, 26.2 and 26.4 hereinabove failed
F
to consider the effect of clause fourthly to Section 300 IPC.
30. Before we turn to the submissions on sentence advanced by
Ms. Mathur, learned Senior Advocate, it needs to be noted that about 67
cases were dealt with by this Court in last 40 years since the decision of
this Court in Bachan Singh8, where i) the alleged offences were under
G Sections 376 and 302 IPC; and ii) the ages of the victims were 16 years
or below. The Cases are:-

H
SHATRUGHNA BABAN MESHRAM v. 67
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

A

B

C

D

E

F

G

H
68 SUPREME COURT REPORTS [2020] 13 S.C.R.

A

B

C

D

E

F

G

H
SHATRUGHNA BABAN MESHRAM v. 69
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

A

B

C

D

E

F

G

H
70 SUPREME COURT REPORTS [2020] 13 S.C.R.

A

B

C

D

E

F

G

H
SHATRUGHNA BABAN MESHRAM v. 71
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

A

B

C

D

E

F

G

H
72 SUPREME COURT REPORTS [2020] 13 S.C.R.

A

B

C

D

E

F

G

H
SHATRUGHNA BABAN MESHRAM v. 73
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

A

B

C

D

Out of these 67 cases, this Court affirmed the award of death E
sentence to the accused in 15 cases. In three (at Sr. Nos. 26A, 33A and
41A) out of said 15 cases, the death sentence was commuted to life
sentence by this Court in Review Petitions. Out of remaining 12 cases,
in two cases (where Review Petitions were heard in open Court in terms
of law laid down in Mohd. Arif alias Ashfaq vs. Registrar, Supreme
Court of India52) namely in cases at Sr. Nos. 51A and 65A, the death F
sentence was confirmed by this Court and the Review Petitions were
dismissed. Thus, as on date, the death sentence stands confirmed in 12
out of 67 cases where the principal offences allegedly committed were
under Sections 376 and 302 IPC and where the victims were aged about
16 years or below. G
Out of these 67 cases, at least in 51 cases the victims were aged
below 12 years. In 12 out of those 51 cases, the death sentence was
initially awarded. However, in 3 cases (at Sr. Nos. 26A, 33A and 41A)
the death sentence was commuted to life sentence in Review.
52
(2014) 9 SCC 737
H
74 SUPREME COURT REPORTS [2020] 13 S.C.R.

A In 2 out of aforesaid 67 cases (at Sr. Nos. 58 and 67), the offences
were committed on 23.02.2015 and 22.05.2015 respectively i.e., after
the Amendment Act received the assent of the President and was
published on 02.04.2013 (but given retrospective effect from 03.02.2013).
The conviction was also under Section 376A of IPC and the evidence
showed specific acts such as drowning the victim or throttling her. In the
B
first case, the age of the victim was 5 years while in the second case the
victim was aged 13 years. In the first case the sentence imposed by this
Court was 25 years of imprisonment without remission while in the
second, the life sentence for the remainder of the life of the accused,
was imposed.
C 31. We now turn to the first submission advanced by Ms. Mathur,
learned Senior Advocate on the issue of sentence. Section 235 (2) of the
Code mandates that the accused must be heard on sentence. In the
instant case the order of sentence was made on the same day the order
of conviction was pronounced. In Santa Singh v. State of Punjab53 the
D accused was convicted and sentenced to death by one single judgment
and thus a bench of two judges of this Court found that there was infraction
of Section 23 (2) of the Code. The sentence of death was therefore set
aside and the matter was remanded to the Sessions Court. Whether, for
non-compliance of Section 235 (2) of the Code, the matter be remanded
in the light of the decision in Santa Singh v. State of Punjab53 was
E thereafter considered by a bench of three judges of this Court in Dagdu
v. State of Maharashtra54. Chandrachud, CJ. who delivered the leading
judgment, observed: -
“79. But we are unable to read the judgment in Santa Singh as
F laying down that the failure on the part of the Court, which convicts
an accused, to hear him on the question of sentence must
necessarily entail a remand to that Court in order to afford to the
accused an opportunity to be heard on the question us sentence.
The Court, on convicting an accused, must unquestionably hear
him on the question of sentence. But if, for any reason, it omits to
G do so and the accused makes a grievance of it in the higher court,
it would be open to that Court to remedy the breach by giving a
hearing to the accused on the question of sentence. That

53
(1976) 4 SCC 190
54
H (1977) 3 SCC 68
SHATRUGHNA BABAN MESHRAM v. 75
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

opportunity has to be real and effective, which means that the A
accused must be permitted to adduce before the Court all the
data which he desires to adduce on the question of sentence. The
accused may exercise that right either by instructing his counsel
to make oral submissions to the Court or he may, on affidavit or
otherwise, place in writing before the Court whatever he desires B
to place before it on the question of sentence. The Court may, in
appropriate cases, have to adjourn the matter in order to give to
the accused sufficient time to produce the necessary data and to
make his contentions on the question of sentence. That, perhaps,
must inevitably happen where the conviction is recorded for the
first time by a higher court.” C

Goswami, J., authored a concurring opinion, the relevant part of
which was quoted in B. A. Umesh v. High Court of Karnataka31.
32. In Allauddin Mian v. State of Bihar11, the order of sentence
was passed on the same day the order of conviction was pronounced D
and a bench of two judges of this Court commuted the sentence of
death to life imprisonment. In Malkiat Singh v. Stat of Punjab12, a
bench of three judges of this Court did not deem it appropriate to remand
the matter for hearing the accused on sentence after six years and
commuted the sentence of death to life imprisonment. In Ajay Pandit v.
E
State of Maharashtra13, a bench of two judges of this Court found that
the opportunity afforded to the accused in terms of Section 235 (2) of
the Code was purely mechanical and no genuine efforts were made to
elicit any information either from the accused or from the prosecution as
to whether any circumstances existed which might influence the High
Court to avoid award of death sentence. F
33. In B. A. Umesh v. High Court of Karnataka31, a bench of
three judges of this Court considered the decisions on the point including
the question whether the matter was required to be remanded to hear
the accused on sentence. Paragraphs 11 to 13 of the decision were as
under :- G
“11. In Dagdu v. State of Maharashtra54 Goswami, J. observes
as under:

H
76 SUPREME COURT REPORTS [2020] 13 S.C.R.

A “90. I would particularly emphasise that there is no mandatory
direction for remanding any case in Santa Singh v. State of
Punjab53 nor is remand the inevitable recipe of Section 235(2),
Code of Criminal Procedure, 1973. Whenever an appeal court
finds that the mandate of Section 235(2) CrPC for a hearing
on sentence had not been complied with, it, at once, becomes
B
the duty of the appeal court to offer to the accused an adequate
opportunity to produce before it whatever materials he chooses
in whatever reasonable way possible. Courts should avoid laws’
delay and necessarily inconsequential remands when the
accused can secure full benefit of Section 235(2) CrPC even
C in the appeal court, in the High Court or even in this Court. We
have unanimously adopted this very course in these appeals.”
12. In another three-Judge Bench case in Tarlok Singh v. State
of Punjab55, at para 4, Krishna Iyer, J. writes:
“4. In Santa Singh v. State of Punjab53 this Court considering
D Section 235(2) CrPC held that the hearing contemplated by
that sub- section is not confined merely to hearing oral
submissions but extends to giving an opportunity to the
prosecution and the accused to place before the court facts
and materials relating to the various factors bearing on the
E question of sentence and, if they are contested by either side,
then to produce evidence for the purpose of establishing the
same. Of course, in that particular case this Court sent the
case back to the Sessions Court for complying with Section
235(2) CrPC. It may well be that in many cases sending the
case back to the Sessions Court may lead to more expense,
F delay and prejudice to the cause of justice. In such cases, it
may be more appropriate for the appellate court to give an
opportunity to the parties in terms of Section 235(2) to produce
the materials they wish to adduce instead of going through the
exercise of sending the case back to the trial court. This may,
G in many cases, save time and help produce prompt justice.”
13. In Deepak Rai v. State of Bihar56, yet another three- Judge
Bench case, Dattu, J. observes in para 54 as under:

55
(1977) 3 SCC 218
H 56
(2013) 10 SCC 421
SHATRUGHNA BABAN MESHRAM v. 77
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

“54. Herein, it is not the case of the appellants that the A
opportunity to be heard on the question of sentence separately
as provisioned for under Section 235(2) of the Code was not
provided by the courts below. Further, the trial court has
recorded and discussed the submissions made by the appellants
and the prosecution on the said question and thereafter, rejected
B
the possibility of awarding a punishment less harsh than the
death penalty. However, the High Court while confirming the
sentence has recorded57 reasons though encapsulated. The High
Court has noticed the motive of the appellants being non-
withdrawal of the case by the informant and the ghastly manner
of commission of crime whereby six innocent persons as young C
as 3-year old were charred to death and concluded that the
incident shocks the conscience of the entire society and thus
deserves nothing lesser but death penalty.” ”
34. Subsequently, the issue was again considered in Vasanta
Sampat Dupare v. State of Maharashtra32 and after referring to the D
decisions of this Court including those rendered in Allauddin Mian v.
State of Bihar11, Malkiat Singh v. State of Punjab12 and B. A. Umesh
v. High Court of Karnataka31, a bench of three judges of this Court
observed : -
“16. This Court then relied on the principle laid down in Dagdu v. E
State of Maharashtra54 which was followed subsequently by
another Bench of three learned Judges in Tarlok Singh v. State
of Punjab55. In the circumstances, merely because no separate
date was given for hearing on sentence, we cannot find the entire
exercise to be flawed or vitiated. Since we had allowed the F
petitioner to place the relevant material on record in the light of
the principles laid down in Dagdu v. State of Maharashtra54 we
will proceed to consider the material so placed on record and
weigh these factors and the aggravating circumstances as found
by the Court in the judgment under review.”
G
Recently, in Manoj Suryavanshi vs. State of Chhattisgarh 58 , a
bench of three Judges of this Court, after considering the relevant
decisions on the point, concluded:-
57
State of Bihar v. Deepak Rai, 2010 SCC OnLine Pat 949
58
(2020) 4 SCC 451 H
78 SUPREME COURT REPORTS [2020] 13 S.C.R.

A “27.2. Thus, there is no absolute proposition of law that in no
case there can be conviction and sentence on the same day.
There is no absolute proposition of law laid down by this Court
in any of the decisions that if the sentence is awarded on the
very same day on which the conviction was recorded, the
sentencing would be vitiated.”
B
Thus, merely on account of infraction of Section 235 (2) of the
Code, the death sentence ought not to be commuted to life imprisonment.
In any case we have afforded adequate and sufficient opportunity to the
Appellant to place all the relevant materials on record in the light of
C principle laid down in Dagdu v. State of Maharashtra54.
35. Before we deal with the second submission on sentence, it
must be observed that as laid down by this Court in Sharad Birdhichand
Sarda v. State of Maharashtra34, a case based on circumstantial
evidence has to face strict scrutiny. Every circumstance from which
D conclusion of guilt is to be drawn must be fully established; the
circumstances should be conclusive in nature and tendency; they must
form a chain of evidence so complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused;
and such chain of circumstances must be consistent only with the
hypothesis of the guilt of the accused and must exclude every possible
E hypothesis except the one sought to be proved by the prosecution. The
decision in Sharad Birdhichand Sarda v. State of Maharashtra34
had noted the consistent view on the point including the decision of this
Court in Hanumant v. State of Madhya Pradesh59 in which a bench of
three judges of this Court had ruled:-
F “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
G
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
59
H (1952) SCR 1091
SHATRUGHNA BABAN MESHRAM v. 79
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

as to show that within all human probability the act must have A
been done by the accused.”
Secondly, on the issue as to what should be the approach in the
matter of sentence, a bench of three judges of this Court in Vadivelu
Thevar v. State of Madras60 stated:-
“Lastly, it was urged that assuming that the court was inclined B
to act upon the testimony of the first witness and to record a
conviction for murder as against the first appellant, the court
should not impose the extreme penalty of law and in the state
of the record as it is, the lesser punishment provided by law
should be deemed to meet the ends of justice. We cannot accede C
to this line of argument. The first question which the court has
to consider in a case like this, is whether the accused has been
proved, to the satisfaction of the court, to have committed the
crime. If the court is convinced about the truth of the
prosecution story, conviction has to follow. The question of
sentence has to be determined, not with reference to the volume D
or character of the evidence adduced by the prosecution in
support of the prosecution case, but with reference to the fact
whether there are any extenuating circumstances which can
be said to mitigate the enormity of the crime. If the court is
satisfied that there are such mitigating circumstances, only then, E
it would be justified in imposing the lesser of the two sentences
provided by law. In other words, the nature of the proof has
nothing to with the character of the punishment. The nature of
the proof can only bear upon the question of conviction - whether
or not the accused has been proved to be guilty. If the court
comes to the conclusion that the guilt has been brought home F
to the accused, and conviction follows, the process of proof is
at an end. The question as to what punishment should be
imposed is for the court to decide in all the circumstances of
the case with particular reference to any extenuating
circumstances. But the nature of proof, as we have indicated, G
has nothing to do with the question of punishment. In this case,
there are no such extenuating circumstances which can be
legitimately urged in support of the view that the lesser penalty
under s. 302 of the Indian Penal Code, should meet the ends of
60
(1957) SCR 981 – This was, however, not a case of death sentence.
H
80 SUPREME COURT REPORTS [2020] 13 S.C.R.

A justice. It was a cold-blooded murder. The accused came for
the second time, determined to see that their victim did not
possibly escape the assassins’ hands.”
(Emphasis added)
It was laid down that the question of sentence must be determined
B not with reference to the volume or character of the evidence on record
but with reference to the circumstances which mitigate the enormity of
the crime and that the nature of proof can have bearing upon the question
of sentence and not with the question of punishment.
36. We may now consider some of the cases where death penalty
C was imposed when conviction was based on circumstantial evidence.
(i) Jumman Khan vs. State of U.P. and Another 61; while
dismissing Writ Petition of a death convict this Court noted in
para 4 the earlier order passed by a bench of two judges confirming
the death sentence.
D
“4. Feeling aggrieved by the judgment of the High Court, the
petitioner filed S.L.P. (Criminal) No. 558 of 1986. This Court
by its order dated March 20, 1986 dismissed the SLP observing
thus:
“Although the conviction of the petitioner under Section 302
E
of the Indian Penal Code, 1860 rests on circumstantial
evidence, the circumstantial evidence against the petitioner
leads to no other inference except that of his guilt and
excludes every hypothesis of his innocence. Apart from
the circumstances brought out by the prosecution, each one
F of which has been proved, there is no extra-judicial
confession which lends support to the prosecution case that
the child had been raped by the petitioner and thereafter
strangulated to death.
Failure to impose a death sentence in such grave cases
G where it is a crime against the society — particularly in
cases of murders committed with extreme brutality — will
bring to naught the sentence of death provided by Section
302 of the Indian Penal Code. It is the duty of the court to
impose a proper punishment depending upon the degree of
61
(1991) 1 SCC 752
H
SHATRUGHNA BABAN MESHRAM v. 81
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

criminality and desirability to impose such punishment. The A
only punishment which the appellant deserves for having
committed the reprehensible and gruesome murder of the
innocent child to satisfy his lust, is nothing but death as a
measure of social necessity and also as a means of deterring
other potential offenders. The sentence of death is
B
confirmed.”
(ii) Amrutlal Someshwar Joshi vs. State of Maharashtra
(I) 62:-
“19. Learned counsel for the appellant further submitted that
the case rests on the circumstantial evidence and the quality of C
the evidence adduced is not of that high order and therefore it
is not safe to impose death sentence. In this context he relied
on a judgment of this Court in Shankar v. State of T.N.63 We
have gone through that judgment and it is only indicated there
that the quality of evidence also would be a factor to be taken
into consideration. The circumstantial evidence in this case D
cannot at all be said to be qualitatively inferior in any manner.
It is well-settled that if there is clinching and reliable
circumstantial evidence, then that would be the best evidence
to be safely relied upon. As observed in Bachan Singh v.
State of Punjab8, there may be many circumstances justifying E
the passing of the lighter sentence as there are countervailing
circumstances of aggravation warranting imposition of death
sentence. In Machhi Singh v. State of Punjab9, a Bench of
three Judges of this Court having noted the principles laid down
in Bachan Singh case8 regarding the formula of “rarest of
rare cases” for imposing death sentence, observed that the F
guidelines indicated in Bachan Singh case8 will have to be
culled out and applied to the facts of each individual case where
the question of imposing of death sentence arises. It was further
observed as under: (SCC p. 489, para 40)
“If upon taking an overall global view of all the circumstances G
in the light of the aforesaid proposition and taking into
account the answers to the questions posed hereinabove,

62
(1994) 6 SCC 186
63
(1994) 4 SCC 478 H
82 SUPREME COURT REPORTS [2020] 13 S.C.R.

A the circumstances of the case are such that death sentence
is warranted, the court would proceed to do so.”
Likewise in Allauddin Mian v. State of Bihar11, the same view
has been reiterated thus: (SCC p. 22, para 12)
“However, in order that the sentences may be properly graded
B to fit the degree of gravity of each case, it is necessary that
the maximum sentence prescribed by law should, as observed
in Bachan Singh case8, be reserved for the ‘rarest of rare’
cases which are of an exceptional nature. Sentences of severity
are imposed to reflect the seriousness of the crime, to promote
C respect for the law, to provide just punishment for the offence,
to afford adequate deterrent to criminal conduct and to protect
the community from further similar conduct. It serves a three-
fold purpose (i) punitive (ii) deterrent and (iii) protective. That
is why this Court in Bachan Singh case8 observed that when
the question of choice of sentence is under consideration the
D Court must not only look to the crime and the victim but also
the circumstances of the criminal and the impact of the crime
on the community. Unless the nature of the crime and the
circumstances of the offender reveal that the criminal is a
menace to the society and the sentence of life imprisonment
E would be altogether inadequate, the court should ordinarily
impose the lesser punishment and not the extreme punishment
of death which should be reserved for exceptional cases only.”
Bearing these principles in mind and after having given our anxious
consideration, we are of the firm opinion in view of the above
F circumstances that the case of the appellant comes within the
category of “rarest of rare cases” and the two courts below have
rightly awarded the death sentence.”
(Emphasis supplied)
(iii) Kamta Tiwari vs. State of M.P.64
G
(iv) Molai and Another vs. State of M.P.65

64
(1996) 6 SCC 250
65
(1999) 9 SCC 581
H
SHATRUGHNA BABAN MESHRAM v. 83
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

(v) Shivaji alias Dadya Shankar Alhat vs. State of A
Maharashtra66; while affirming the conviction and sentence of death
for offences under Sections 376 and 302 IPC it was observed:-
“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 B
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 C
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 D
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
amicus curiae that the conviction is based on circumstantial
evidence and, therefore, the death sentence should not be awarded E
is clearly unsustainable.”
(emphasis supplied)
vi)Vasanta Sampat Dupare v. State of Maharashtra6
“38. On a critical analysis of the evidence on record, we are F
convinced that the circumstances that have been clearly
established are: that the appellant was seen in the courtyard where
the minor girl and other children were playing; that the appellant
was seen taking the deceased on his bicycle; that he had gone to
the grocery shop owned by PW 6 to buy Minto fresh chocolate G
along with her; that the accused had told PW 2 that the child was
the daughter of his friend and he was going to “Tekdi-Wadi” along
with the girl; that the appellant had led to the discovery of the
dead body of the deceased, the place where he had washed his
66
(2008) 15 SCC 269 H
84 SUPREME COURT REPORTS [2020] 13 S.C.R.

A clothes and at his instance the stones smeared with blood were
recovered; that the medical report clearly indicates about the
injuries sustained by the deceased on her body; that the injuries
sustained on the private parts have been stated by the doctor to
have been caused by forcible sexual intercourse; that the stones
that were seized were smeared with blood and the medical
B
evidence corroborates the fact that injuries could have been caused
by battering with stones; that the chemical analysis report shows
that the blood group on the stones matches with the blood group
found on the clothes of the appellant; that the appellant has not
offered any explanation with regard to the recovery made at his
C instance; and that nothing has been stated in his examination under
Section 313 CrPC that there was any justifiable reason to implicate
him in the crime in question. Thus, we find that each of the
incriminating circumstances has been clearly established and the
chain of circumstances are conclusive in nature to exclude any
kind of hypothesis, but the one proposed to be proved, and lead to
D
a definite conclusion that the crime was committed by the accused.
Therefore, we have no hesitation in affirming the judgment of
conviction rendered by the learned trial Judge and affirmed by
the High Court.”
(Emphasis supplied)
E
vii) Manoharan v. State67
“23. ...... The entire chain of events has been made out and
despite this being a case of circumstantial evidence, the
prosecution has clearly proved its case beyond reasonable
F doubt. The courts below are right in convicting the appellant of
rape and murder.”
(Emphasis supplied)
The decisions at Sl. Nos.(iv), (vi) and (vii) were by benches of
three Judges and dealt with cases where the convictions were inter alia
G under Sections 302, 376 IPC and the victims were aged 16 years or
below; while the others were by benches of two Judges.
37. However, there is a definite line of cases, where thoughts
have been expressed that in cases of conviction based on circumstantial
67
(2019) 7 SCC 716
H
SHATRUGHNA BABAN MESHRAM v. 85
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

evidence, the death sentence should not normally be imposed. Some A
such cases are:-
(i) Aloke Nath Dutta v. State of West Bengal68:-
“81. There is no eyewitness to the occurrence. Nobody has noticed
any suspicious conduct on the part of the appellants indicating
their role in committing murder or disposing of the dead body. B
While dealing with a case of grave nature like the present one,
there is always a danger that conjectures and suspicion may take
the place of legal truth. This Court has laid down guidelines from
time to time in regard to a finding of guilt solely on the basis of
circumstantial evidence in a number of cases..............” C
14
(ii) Bishnu Prasad Sinha v. State of Assam :-
“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 D
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 E
in his statement under Section 313 of the Code of Criminal
Procedure. He accepted his guilt.”
(Emphasis supplied)
(iii) Swamy Shraddananda (2) v. State of Karnataka69
F
While considering the decision of this Court in Bachan Singh8, it
was observed:-
“36. Arguing against standardisation of cases for the purpose of
death sentence the Court observed that even within a single
category offence there are infinite, unpredictable and G
unforeseeable variations. No two cases are exactly identical. There
are countless permutations and combinations which are beyond
the anticipatory capacity of the human calculus. The Court further
68
(2007) 12 SCC 230
69
(2008) 13 SCC 767 H
86 SUPREME COURT REPORTS [2020] 13 S.C.R.

A observed that standardisation of the sentencing process tends to
sacrifice justice at the altar of blind uniformity.
… … …
“48. That is not the end of the matter. Coupled with the deficiency
of the criminal justice system is the lack of consistency in the
B sentencing process even by this Court. It is noted above that
Bachan Singh8 laid down the principle of the rarest of rare cases.
Machhi Singh9 for practical application crystallised the principle
into five definite categories of cases of murder and in doing so
also considerably enlarged the scope for imposing death penalty.
But the unfortunate reality is that in later decisions neither the
C
rarest of rare cases principle nor the Machhi Singh9 categories
were followed uniformly and consistently.
49. In Aloke Nath Dutta v. State of W.B.68 Sinha, J. gave some
very good illustrations from a number of recent decisions in which
on similar facts this Court took contrary views on giving death
D penalty to the convict. He finally observed that “courts in the
matter of sentencing act differently although the fact situation
may appear to be somewhat similar” and further “it is evident
that different Benches had taken different view in the matter”.
Katju, J. in his order passed in this appeal said that he did not
agree
E
with the decision in Aloke Nath Dutta68 in that it held that death
sentence was not to be awarded in a case of circumstantial
evidence. Katju, J. may be right that there cannot be an absolute
rule excluding death sentence in all cases of circumstantial
evidence (though in Aloke Nath Dutta68 it is said “normally” and
F not as an absolute rule). But there is no denying the illustrations
cited by Sinha, J. which are a matter of fact.”
(emphasis supplied)
(iv) Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra70
G
Relying upon the testimony of an approver, the sentence of death
was awarded. The decision of this Court in Mohan and ors. vs. State
of Tamil Nadu71 was distinguished thus:-
70
(2009) 6 SCC 498
71
(1998) 5 SCC 336 – case of kidnapping of a minor boy of 10 years for ransom and
H murder. Award of death sentence to appellants Mohan and Gopi was affirmed by this
Court.
SHATRUGHNA BABAN MESHRAM v. 87
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

“161. Mr Adsure has placed strong reliance on a decision of this A
Court in Mohan v. State of T.N.71 to contend that the manner in
which the murder was committed itself points out that all the
accused deserved death penalty. In our opinion the facts of that
case are clearly distinguishable from the present one. That case
involved the murder of a minor. It clearly is not applicable to the
B
present case. Moreover, the Court in that case too recognised
that proper and due regard must be given to the mitigating
circumstances in every case.”
After considering the mitigating circumstances it was observed:-
“167. The entire prosecution case hinges on the evidence of the C
approver. For the purpose of imposing death penalty, that factor
may have to be kept in mind.
We will assume that in Swamy Shraddananda (2)69, this Court
did not lay down a firm law that in a case involving circumstantial
evidence, imposition of death penalty would not be permissible. D
But, even in relation thereto the question which would arise would
be whether in arriving at a conclusion some surmises, some
hypothesis would be necessary in regard to the manner in which
the offence was committed as contradistinguished from a case
where the manner of occurrence had no role to play. Even where
sentence of death is to be imposed on the basis of the circumstantial E
evidence, the circumstantial evidence must be such which leads
to an exceptional case.
168. We must, however, add that in a case of this nature where
the entire prosecution case revolves round the statement of an
approver or is dependent upon the circumstantial evidence, the F
prudence doctrine should be invoked. For the aforementioned
purpose, at the stage of sentencing evaluation of evidence would
not be permissible, the courts not only have to solely depend upon
the findings arrived at for the purpose of recording a judgment of
conviction, but also consider the matter keeping in view the G
evidences which have been brought on record on behalf of the
parties and in particular the accused for imposition of a lesser
punishment. A statement of approver in regard to the manner in
which crime has been committed vis-à-vis the role played by the

H
88 SUPREME COURT REPORTS [2020] 13 S.C.R.

A accused, on the one hand, and that of the approver, on the other,
must be tested on the touchstone of the prudence doctrine.”
(emphasis supplied)
(v) Purna Chandra Kusal v. State of Orissa16
B “7. We are, however, of the opinion that the death sentence in the
present case was not called for. The appellant was a labourer
living in a basti alongside the railway line and was, at the time of
the incident, about 30 years of age. We also see that the entire
evidence is circumstantial in nature. Concededly, there is no
inflexible rule that a death sentence cannot be awarded in a case
C resting on circumstantial evidence but courts are as a matter of
prudence, hesitant in awarding this sentence, in such a situation.
It is true that the crime was indeed a heinous one as the victim
was only five years of age and the daughter of PW 5 who was a
neighbour of the appellant. On a cumulative assessment of the
D facts, we are of the opinion that the death sentence should be
commuted into one for life.”
(Emphasis supplied)
(vi) Neel Kumar v. The State of Haryana72
(vii) Sushil Sharma vs. State (NCT of Delhi)73
E
(viii) Mahesh Dhanaji Shinde vs. State of Maharashtra74
(ix) Kalu Khan v. State of Rajasthan17
“24. In respect of award of death sentence in cases where sole
basis for conviction is circumstantial evidence, this Court in Swamy
F Shraddananda v. State of Karnataka75, has acknowledged that
such cases 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. This Court cautioned that convictions based
on “seemingly conclusive circumstantial evidence” should not be
G presumed as foolproof incidences and the fact that the same are
based on circumstantial evidence must be a definite factor at the

72
(2012) 5 SCC 766
73
(2014) 4 SCC 317
74
(2014) 4 SCC 292
75
H (2007) 12 SCC 288 para 87
SHATRUGHNA BABAN MESHRAM v. 89
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

sentencing stage deliberations, considering that capital punishment A
is unique in its total irrevocability. Further, this Court observed
that 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.
B
25. This Court noticed certain decisions under the American death
penalty jurisprudence as follows: (Swamy Shraddananda case75,
SCC pp. 320-21, paras 88-90)
“88. One of the older cases in this league dates back to 1874,
Merritt v. State 76, where the Supreme Court of Georgia C
described the applicable law in Georgia as follows:
‘By the Penal Code of this State the punishment of murder
shall be death, except when the conviction is founded solely
on circumstantial testimony. When the conviction is had
solely on circumstantial testimony, then it is discretionary D
with the Presiding Judge to impose the death penalty or to
sentence the defendant to imprisonment in the penitentiary
for life, unless the jury…shall recommend that the defendant
be imprisoned in the penitentiary for life; in that case the
Presiding Judge has no discretion, but is bound to commute E
the punishment from death to imprisonment for life in the
penitentiary.’
89. Later case of Jackson v. State77, Ala at pp. 29-30 followed
the aforementioned case. [Also see S.M. Phillipps, Famous
Cases of Circumstantial Evidence with an Introduction on F
the Theory of Presumptive Proof, 50-52 (1875).]
90. In United States v. Quinones78, F Supp 2d at p. 267 the
Court remarked:
‘Many States that allow the death penalty permit a
conviction based solely on circumstantial evidence only if G
such evidence excludes to a moral certainty every other
reasonable inference except guilt.’”
76
(1874) 52 Gs 82
77
74 Ala 26 (1883)
78
205 F Supp. 2d 256 (SDNY 2002) H
90 SUPREME COURT REPORTS [2020] 13 S.C.R.

A 26. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra70, all the accused persons including the appellant
were unemployed young men in search of employment. In
execution of a plan proposed by the appellant and accepted by
them, they kidnapped their friend with the motive of procuring
ransom from his family but later murdered him and after cutting
B
his body into pieces disposed of the same at different places. One
of the accused persons turned approver and the prosecution case
was based entirely on his evidence. The trial court awarded death
sentence to the appellant. The High Court confirmed the death
sentence. In appeal, this Court observed that punishment cannot
C be determined on grounds of proportionality alone. This Court
observed that though there was nothing to show that the appellant
could not be reformed and rehabilitated and the manner and method
of disposal of the dead body of the deceased reflected most foul
and despicable case of murder, mere mode of disposal of the
dead body may not by itself be made the ground for inclusion of a
D
case in the rarest of rare category for the purpose of imposition
of death sentence. Other factors require to be considered along
with the aforesaid. This Court was of the view that the fact that
the prosecution case rested on the evidence of the approver, will
have to be kept in mind. Further, that where the death sentence is
E to be imposed on the basis of circumstantial evidence, the
circumstantial evidence must be such which leads to an exceptional
case. It was further observed that the discretion given to the court
in such cases assumes onerous importance and its exercise
becomes extremely difficult because of the irrevocable character
of death penalty. Where two views ordinarily could be taken,
F
imposition of death sentence would not be appropriate. In the
circumstances, the death sentence was converted to life
imprisonment.
… … …
G 30. In Mahesh Dhanaji Shinde v. State of Maharashtra74, the
conviction of the appellant-accused was upheld keeping in view
that the circumstantial evidence pointed only in the direction of
their guilt given that the modus operandi of the crime, homicidal
death, identity of 9 of 10 victims, last seen theory and other
H incriminating circumstances were proved. However, the Court
SHATRUGHNA BABAN MESHRAM v. 91
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

has thought it fit to commute the sentence of death to imprisonment A
for life considering the age, socio-economic conditions, custodial
behaviour of the appellant-accused persons and that the case was
entirely based on circumstantial evidence……
31. In the instant case, admittedly the entire web of evidence is
circumstantial. The appellant-accused’s culpability rests on various B
independent evidence, such as, him being “last seen” with the
deceased before she went missing; the extra-judicial confession
of his co- accused before PW 1 and the village members;
corroborative testimonies of the said village members to the extra-
judicial confession and recovery of the deceased’s body; coupled
with the medical evidence which when joined together paint him C
in the blood of the deceased. While the said evidence proves the
guilt of the appellant-accused and makes this a fit case for
conviction, it does not sufficiently convince the judicial mind to
entirely foreclose the option of a sentence lesser than the death
penalty. Even though there are no missing links in the chain, the D
evidence also does not sufficiently provide any direct indicia
whereby irrefutable conclusions can be drawn with regard to the
nexus between “the crime” and “the criminal”. Undoubtedly, the
aggravating circumstances reflected through the nature of the
crime and young age of the victim make the crime socially
abhorrent and demand harsh punishment. However, there exist E
the circumstances such as there being no criminal antecedents of
the appellant-accused and the entire case having been rested on
circumstantial evidence including the extra-judicial confession of
a co-accused. These factors impregnate the balance of
circumstances and introduce uncertainty in the “culpability F
calculus” and thus, persuade us that death penalty is not an
inescapable conclusion in the instant case. We are inclined to
conclude that in the present scenario an alternate to the death
penalty, that is, imprisonment for life would be appropriate
punishment in the present circumstances.
G
32. In our considered view, in the impugned judgment and order,
the High Court has rightly noticed that life and death are acts of
the divine and the divine’s authority has been delegated to the
human courts of law to be only exercised in exceptional
circumstances with utmost caution. Further, that the first and
H
92 SUPREME COURT REPORTS [2020] 13 S.C.R.

A foremost effort of the Court should be to continue the life till its
natural end and the delegated divine authority should be exercised
only after arriving at a conclusion that no other punishment but
for death will serve the ends of justice. We have critically
appreciated the entire evidence in its minutest detail and are of
the considered opinion that the present case does not warrant
B
award of the extreme sentence of death to the appellant-accused
and the sentence of life imprisonment would be adequate and
meet the ends of justice. We are of the opinion that the four main
objectives which the State intends to achieve, namely, deterrence,
prevention, retribution and reformation can be achieved by
C sentencing the appellant-accused for life.”
(emphasis supplied)
(x) Nand Kishore v. State of Madhya Pradesh79
“15. The learned counsel appearing for the State has placed
D reliance on the judgment of this Court in Mukesh v. State (NCT
of Delhi)33 [known as Nirbhaya case] in support of her case
and submitted that applying the ratio laid down in the aforesaid
judgment, the case falls in the “rarest of rare” cases attracting
death penalty. With reference to abovesaid arguments of the
learned counsel for the State, it is to be noticed that the case of
E Mukesh33 is distinguishable on the facts from the case on hand.
It is to be noticed that Mukesh33 is a case of gang rape and murder
of the victim and an attempt to murder of the male victim. It was
the specific case of the prosecution that the crimes were carried
out pursuant to a conspiracy and the accused were convicted
F under Section 120-B IPC apart from other offences. Further, as a
fact, it was found in the aforesaid case that the accused Mukesh
had been involved in other criminal activity on the same night.
Further, it is also to be noticed that in the aforesaid case, there
was a dying declaration, eyewitness to the incident, etc. So far as
the present case is concerned, it solely rests on circumstantial
G evidence. It is the specific case of the appellant that he was denied
the proper legal assistance in the matter and he is a manhole
worker. The appellant was aged about 50 years. Further, in this
case there is no finding recorded by the courts below to the effect
79
(2019) 16 SCC 278
H
SHATRUGHNA BABAN MESHRAM v. 93
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

that there is no possibility of reformation of the appellant. We are A
of the view that the reasons assigned by the trial court as confirmed
by the High Court, do not constitute special reasons within the
meaning of Section 354(3) CrPC to impose death penalty on the
accused.”
(emphasis supplied) B
80
(xi) Md. Mannan v. State of Bihar
“57. In this case, the conviction of the petitioner is based on
circumstantial evidence and the alleged extra-judicial confession
made by the petitioner to the police in course of investigation, on
the basis of which certain recoveries were made. There is no C
forensic evidence against the petitioner. It would, in our view, be
unsafe to uphold the imposition of death sentence on the petitioner.
… … …
79. In this case, an eight-year-old innocent girl fell prey to the D
carnal desire and lust of the petitioner. It is not known whether
there was any premeditation on the part of the petitioner to murder
the victim. The circumstances in which he murdered the victim
are also not known. The conviction is based on circumstantial
evidence and extra-judicial confession made by the petitioner to
the police in course of investigation. There can be no doubt that E
the crime is abhorrent, but it is doubtful as to whether the crime
committed by the petitioner can be termed as “rarest of the rare”.
(emphasis supplied)
(xii) Dileep Bankar v. State of M.P.81
F
“We are not inclined to interfere with the conviction part. However,
with respect to sentence, in the facts and circumstances of the
case, we are inclined to set aside the capital sentence. It was
stated by learned Counsel for the Appellant that the Appellant has
become the victim of his own past and there is only circumstantial
evidence against him. We deem it proper to impose the sentence G
of total 25 years of imprisonment. However, death sentence is set
aside.”
(emphasis supplied)
80
(2019) 16 SCC 584
81
MANU/SC/1125/2019 H
94 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Out of these 12 cases, cases at Sl. Nos. (iii), (vii), (viii), (ix),
(x), (xi) and (xii) were decided by benches of three Judges of this Court,
while the others were decided by benches of two Judges.
38. An important case for study is the decision of this Court in
Rameshbhai Chandubhai Rathod vs. State of Gujarat82, in which the
B accused was found guilty of offences punishable under Sections 363,
366, 376, 397 and 302 IPC. The victim was a student of 4th standard.
The accused was awarded death sentence. The case was based on the
circumstantial evidence and Pasayat, J. observed:-

C “30. 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
D 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 sentence is awarded for rape and murder and the
like, there is practically no scope for having an eyewitness. They are not
E committed in the public view. By 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 learned
counsel for the appellant that the conviction is based on circumstantial
F evidence and, therefore, the death sentence should not be awarded is
clearly unsustainable.”
(Emphasis supplied)
Having found the appellant guilty of the concerned offences,
Pasayat, J. affirmed the award of death sentence.
G
Ganguly, J. agreed with Pasayat, J. on the issue of conviction but
on the question of sentence he was of the view that the proper sentence
was imprisonment for life. Ganguly, J. found that the reliance by the

82
(2009) 5 SCC 740
H
SHATRUGHNA BABAN MESHRAM v. 95
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

High Court on the decision in Dhananjoy Chatterjee vs. State of W.B.83, A
was incorrect. It was stated:-
“64. There are vital differences in the facts of the two cases. In
the present case, there is no allegation that the appellant ever
misbehaved with the deceased. In Dhananjoy83, prior to the date
of crime, there were many occasions when the victim had been B
teased by Dhananjoy on her way to and back from her school.
The latest being on 2-3-1990, three days prior to her death, when
Dhananjoy had asked the deceased to accompany him to watch a
movie. To that the deceased protested and had told her mother
about it. Then her father had consulted some neighbours and C
thereafter, filed a written complaint to the security agency which
had hired Dhananjoy and deployed in their apartment. The agency
had arranged for Dhananjoy to be transferred to another
apartment. Thus there was a motive and a sense of revenge in
the mind of Dhananjoy in committing the crime against the
deceased. D
After considering various cases, Ganguly, J. observed:-
“117. Keeping these principles in mind, I find that in the instant
case the appellant is a young man and his age was 28 years old as
per the version in the charge- sheet. He is married and has two
E
daughters. He has no criminal antecedents, at least none has been
brought on record. His behaviour in general was not objectionable
and certainly not with the deceased girl prior to the incident. The
unfortunate incident is possibly the first crime committed by the
appellant. He is not otherwise a criminal. Such a person is not a
threat to the society. His entire life is ahead of him. F
… … …
120. I agree with His Lordship that the appellant has to be
convicted on other charges. However, his conviction does not
automatically lead to his death sentence. In my humble opinion
instead of death sentence a sentence of rigorous imprisonment G
for life will serve the ends of justice. With the aforesaid modification
of the sentence the appeal is dismissed to the extent indicated
above.”

83
(1994) 2 SCC 220 H
96 SUPREME COURT REPORTS [2020] 13 S.C.R.

A The matter was, therefore, referred to a bench of three Judges
[Rameshbhai Chandubhai Rathod (2) vs. State of Gujarat 23] which
did not, in terms, disagree with the view taken by Pasayat, J. nor was
there any observation to the contrary on the issue of appreciation of a
case based on circumstantial evidence in capital punishment matters.
But the bench adopted the view taken by Ganguly, J. and stated as
B
under:-
“9. Both the Hon’ble Judges have relied extensively on Dhananjoy
Chatterjee case 83. In this case the death sentence had been
awarded by the trial court on similar facts and confirmed by the
Calcutta High Court and the appeal too dismissed by this Court
C leading to the execution of the accused. Ganguly, J. has, however,
drawn a distinction on the facts of that case and the present one
and held that as the appellant was a young man, only 27 years of
age, it was obligatory on the trial court to have given a finding as
to a possible rehabilitation and reformation and the possibility that
D he could still become a useful member of society in case he was
given a chance to do so.
10. We are, therefore, of the opinion that in the light of the findings
recorded by Ganguly, J. it would not be proper to maintain the
death sentence on the appellant. At the same time the gravity of
E the offence, the behaviour of the appellant and the fear and concern
such incidents generate in ordered society, cannot be ignored.
We, therefore, feel that a via media ought to be adopted in the
light of the judgments of this Court in Ramraj v. State of
Chhattisgarh84 and Mulla v. State of U.P.85 In these two cases,
this Court has held that the term “imprisonment for life” which is
F found in Section 302 IPC, would mean imprisonment for the natural
life of the convict subject to the powers of the President and the
Governor under Articles 72 and 161 of the Constitution of India or
of the State Government under Section 433-A of the Code of
Criminal Procedure.”
G 39. It is also required be noted here that there was disagreement
between two Judges who heard Swamy Sharaddananda vs. State of
Karnataka75. Sinha, J. was of the view that the accused be given life
sentence while Katju,
84
(2010) 1 SCC 573
85
H (2010) 3 SCC 508
SHATRUGHNA BABAN MESHRAM v. 97
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

J. affirmed the award of death sentence. The matter was therefore A
referred to a bench of three Judges whose decision is reported as Swamy
Shraddananda (2)69 which found the observations of Katju, J. that
“there cannot be an absolute rule excluding death sentence in all cases
of circumstantial evidence” to be correct. The bench however formulated
a special category of sentence in paragraphs 91 to 93 of its decision.
B
However, the subsequent decision in Kalu Khan17 quoted with
approval paragraphs 88 to 90 from the opinion of Sinha, J when the
matter was heard by two Judges of this Court in Swamy
Shraddananda 75.
40. These cases discussed in preceding paragraphs show that C
though it is accepted that the observations in Swamy Shraddananda
(2)69 did not lay down any firm principle that in a case involving
circumstantial evidence, imposition of death penalty would not be
permissible, a definite line of thought that where the sentence of death is
to be imposed on the basis of circumstantial evidence, the circumstantial
evidence must be such which leads to an exceptional case was accepted D
by a bench of three Judges of this Court in Kalu Khan17. As a matter of
fact, it accepted the caution expressed by Sinha J. in Swamy
Shraddananda vs. State of Karnataka 75 and the conclusions in
Santosh Kumar Satishbhushan Bariyar70 to restate the principles with
clarity in its decision. E
41. It can therefore be summed up :-
a) it is not as if imposition of death penalty is impermissible to
be awarded in circumstantial evidence cases; and
b) if the circumstantial evidence is of an unimpeachable F
character in establishing the guilt of the accused and leads
to an exceptional case or the evidence sufficiently convinces
the judicial mind that the option of a sentence lesser than
death penalty is foreclosed, the death penalty can be
imposed.
G
42. It must therefore be held that merely because the instant case
is based on circumstantial evidence there is no reason to commute the
death sentence. However, the matter must be considered in the light of
the aforestated principles and see whether the circumstantial evidence

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98 SUPREME COURT REPORTS [2020] 13 S.C.R.

A is of unimpeachable character and the option of a lesser sentence is
foreclosed.
43. Before we deal with the matter from the perspective as stated
above, we must consider the submission advanced by Ms. Mathur, learned
Senior Advocate with regard to “residual doubt” as said submission also
B touches upon the character of evidence.
44. The theory of “residual doubt” was noted for the first time by
a bench of two judges of this Court in Ashok Debbarma Alias Achak
Debbarma vs. State of Tripura18. The discussion in paragraphs 30 to
34 under the caption “residual doubt” was as under:-
C “30. An accused has a profound right not to be convicted of an
offence which is not established by the evidential standard of proof
“beyond reasonable doubt”. This Court in Krishnan v. State86,
held that the
“doubts would be called reasonable if they are free from a
D zest for abstract speculation. Law cannot afford any favourite
other than truth. To constitute reasonable doubt, it must be
free from an overemotional response. Doubts must be actual
and substantial doubts as to the guilt of the accused persons
arising from the evidence, or from the lack of it, as opposed to
E mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt, but a fair doubt
based upon reason and common sense. It must grow out of
the evidence in the case”.
In Ramakant Rai v. Madan Rai87, the above principle has been
F reiterated.
31. In Commonwealth v. Webster88 at p. 320, Massachusetts
Court, as early as in 1850, has explained the expression “reasonable
doubt” as follows:
“Reasonable doubt … is not a mere possible doubt; because
G everything relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and
86
(2003) 7 SCC 56 : 2003 SCC (Cri) 1577
87
(2003) 12 SCC 395 : 2004 SCC (Cri) Supp 445
88
H (1850) 5 Cush 295 : 52 Am Dec 711 (Mass Sup Ct)
SHATRUGHNA BABAN MESHRAM v. 99
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

consideration of all the evidence, leaves the minds of the jurors A
in that condition that they cannot say they feel an abiding
conviction.”
In our criminal justice system, for recording guilt of the accused,
it is not necessary that the prosecution should prove the case with
absolute or mathematical certainty, but only beyond reasonable B
doubt. Criminal courts, while examining whether any doubt is
beyond reasonable doubt, may carry in their mind, some “residual
doubt”, even though the courts are convinced of the accused
persons’ guilt beyond reasonable doubt. For instance, in the instant
case, it was pointed out that, according to the prosecution, 30-35
persons armed with weapons such as firearms, dao, lathi, etc., C
set fire to the houses of the villagers and opened fire which resulted
in the death of 15 persons, but only eleven persons were charge-
sheeted and, out of which, charges were framed only against five
accused persons. Even out of those five persons, three were
acquitted, leaving the appellant and another, who is absconding. D
The court, in such circumstances, could have entertained a “residual
doubt” as to whether the appellant alone had committed the entire
crime, which is a mitigating circumstance to be taken note of by
the court, at least when the court is considering the question
whether the case falls under the rarest of the rare category.
E
32. “Residual doubt” is a mitigating circumstance, sometimes used
and urged before the jury in the United States and, generally, not
found favour by the various courts in the United States. In
Franklin v. Lynaugh89, while dealing with the death sentence,
the Court held as follows:
F
“The petitioner also contends that the sentencing procedures
followed in his case prevented the jury from considering, in
mitigation of sentence, any ‘residual doubts’ it might have had
about his guilt. The petitioner uses the phrase ‘residual doubts’
to refer to doubts that may have lingered in the minds of jurors
who were convinced of his guilt beyond a reasonable doubt, G
but who were not absolutely certain of his guilt. Brief for
Petitioner 14. The plurality and dissent reject the petitioner’s
‘residual doubt’ claim because they conclude that the special
89
101 L Ed 2d 155 : 487 US 164 (1988)
H
100 SUPREME COURT REPORTS [2020] 13 S.C.R.

A verdict questions did not prevent the jury from giving mitigating
effect to its ‘residual doubts’ about the petitioner’s guilt. See
ante at Franklin, US p. 175; post at Franklin, US p. 189.
This conclusion is open to question, however. Although the
jury was permitted to consider evidence presented at the guilt
phase in the course of answering the special verdict questions,
B
the jury was specifically instructed to decide whether the
evidence supported affirmative answers to the special questions
‘beyond a reasonable doubt’. App. 15 (emphasis added).
Because of this instruction, the jury might not have thought
that, in sentencing the petitioner, it was free to demand proof
C of his guilt beyond all doubt.”
33. In California v. Brown90 and other cases, the US courts took
the view, “residual doubt” is not a fact about the defendant or the
circumstances of the crime, but a lingering uncertainty about facts,
a state of mind that exists somewhere between “beyond a
D reasonable doubt” and “absolute certainty”. The petitioner’s
“residual doubt” claim is that the States must permit capital
sentencing bodies to demand proof of guilt to “an absolute
certainty” before imposing the death sentence. Nothing in our
cases mandates the imposition of this heightened burden of proof
at capital sentencing.
E
34. We also, in this country, as already indicated, expect the
prosecution to prove its case beyond reasonable doubt, but not
with “absolute certainty”. But, in between “reasonable doubt”
and “absolute certainty”, a decision-maker’s mind may wander,
possibly in a given case he may go for “absolute certainty” so as
F to award death sentence, short of that he may go for “beyond
reasonable doubt”. Suffice it to say, so far as the present case is
concerned, we entertained a lingering doubt as to whether the
appellant alone could have executed the crime single-handedly,
especially when the prosecution itself says that it was the handiwork
G of a large group of people. If that be so, in our view, the crime
perpetrated by a group of people in an extremely brutal, grotesque
and dastardly manner, could not have been thrown upon the
appellant alone without charge-sheeting other group of persons

90
93 L Ed 2d 934 : 479 US 538 (1987)
H
SHATRUGHNA BABAN MESHRAM v. 101
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

numbering around 35. All the element test as well as the residual A
doubt test, in a given case, may favour the accused, as a mitigating
factor.”
(Emphasis supplied)
45. The decision of this Court in Ashok Debbarma18 was relied
upon in following decisions by benches of three judges of this Court:- B

(A) In Sudam alias Rahul Kniram Jadhav v. State of
Maharashtra19 the appellant was convicted of having caused the death
of five persons; i.e. the lady who was living with him as his wife, two
children from her previous marriage and two children from the appellant.
The death sentence awarded to him was confirmed by this Court. C
However, in review petition, the sentence was commuted to
“imprisonment for the remainder of his life sans any right to remission”.
The discussion was as under:
“19.1. At this juncture, it must be noted that though it may be a
relevant consideration in sentencing that the evidence in a given D
case is circumstantial in nature, there is no bar on the award of
the death sentence in cases based upon such evidence (see Swamy
Shraddananda v. State of Karnataka75 and Ramesh v. State of
Rajasthan 91).
19.2. In such a situation, it is up to the Court to determine whether E
the accused may be sentenced to death upon the strength of
circumstantial evidence, given the peculiar facts and circumstances
of each case, while assessing all the relevant aggravating
circumstances of the crime, such as its brutality, enormity and
premeditated nature, and mitigating circumstances of the accused, F
such as his socio-economic background, age, extreme emotional
disturbance at the time of commission of the offence, and so on.
19.3. In this regard, it would also be pertinent to refer to the
discussion in Ashok Debbarma v. State of Tripura86, where this
Court elaborated upon the concept of “residual doubt” which simply
G
means that in spite of being convinced of the guilt of the accused
beyond reasonable doubt, the Court may harbour lingering or
residual doubts in its mind regarding such guilt. This Court noted
that the existence of residual doubt was a ground sometimes urged
91
(2011) 3 SCC 685 H
102 SUPREME COURT REPORTS [2020] 13 S.C.R.

A before American courts as a mitigating circumstance with respect
to imposing the death sentence, and noted as follows:
“33. In California v. Brown90 and other cases, the US courts
took the view, “residual doubt” is not a fact about the
defendant or the circumstances of the crime, but a lingering
B uncertainty about facts, a state of mind that exists
somewhere between “beyond a reasonable doubt” and
“absolute certainty”. The petitioner’s “residual doubt” claim
is that the States must permit capital sentencing bodies to
demand proof of guilt to “an absolute certainty” before imposing
the death sentence. Nothing in our cases mandates the
C imposition of this heightened burden of proof at capital
sentencing.
34. We also, in this country, as already indicated, expect the
prosecution to prove its case beyond reasonable doubt, but not
with “absolute certainty”. But, in between “reasonable
D doubt” and “absolute certainty”, a decision-maker’s mind
may wander, possibly in a given case he may go for
“absolute certainty” so as to award death sentence, short
of that he may go for “beyond reasonable doubt”. Suffice
it to say, so far as the present case is concerned, we
E entertained a lingering doubt as to whether the appellant
alone could have executed the crime single- handedly,
especially when the prosecution itself says that it was the
handiwork of a large group of people. If that be so, in our view,
the crime perpetrated by a group of people in an extremely
brutal, grotesque and dastardly manner, could not have been
F thrown upon the appellant alone without charge-sheeting other
group of persons numbering around 35. All the element test as
well as the residual doubt test, in a given case, may favour
the accused, as a mitigating factor.”
19.4. While the concept of “residual doubt” has undoubtedly not
G been given much attention in Indian capital sentencing
jurisprudence, the fact remains that this Court has on several
occasions held the quality of evidence to a higher standard for
passing the irrevocable sentence of death than that which governs
conviction, that is to say, it has found it unsafe to award the death
H penalty for convictions based on the nature of the circumstantial
SHATRUGHNA BABAN MESHRAM v. 103
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

evidence on record. In fact, this question was given some attention A
in a recent decision by this Bench, in Mohd. Mannan v. State of
Bihar80, where we found it unsafe to affirm the death penalty
awarded to the accused in light of the nature of the evidence on
record, though the conviction had been affirmed on the basis of
circumstantial evidence.
B
… … …
“21. Evidently, even the fact that the evidence was circumstantial
in nature did not weigh very heavily on the Court’s mind, let alone
the strength and nature of the circumstantial evidence. Be that as
it may, we find that the material on record is sufficient to convince C
the Court of the petitioner’s guilt beyond reasonable doubt;
however, the nature of the circumstantial evidence in this case
amounts to a mitigating circumstance significant enough to tilt the
balance of aggravating and mitigating circumstances in the
petitioner’s favour, keeping in mind the doctrine of prudence.
Moreover, it is also possible that the incorrect observations D
pertaining to Anita’s facial injuries further led the Court to conclude
in favour of imposing the death sentence on the petitioner. Thus,
we are of the considered opinion that there was a reasonable
probability that this Court would have set aside the sentence of
death in appeal, since the only surviving evidence against the E
petitioner herein pertains to his motive to commit the crime, the
circumstance of “last seen” and a solitary extra-judicial confession.
In other words, it cannot be said that the punishment of life
imprisonment is unquestionably foreclosed in the instant case, in
spite of the gravity and barbarity of the offence.
F
22. We are thus compelled to conclude that the award of the
death penalty in the instant case, based on the evidence on record,
cannot be upheld.
23. At the same time, we conclude that a sentence of life
imprisonment simpliciter would be inadequate in the instant case, G
given the gruesome nature of the offence, and the menace posed
to society at large by the petitioner, as evinced by the conduct of
the petitioner in jail. As per the report submitted in pursuance of
the order of this Court dated 31-10-2018, it has been brought on
record that the conduct of the petitioner in jail has been
H
104 SUPREME COURT REPORTS [2020] 13 S.C.R.

A unsatisfactory, and that he gets aggressive and indulges in illegal
activities in prison, intentionally abusing prisoners and prison staff
and provoking fights with other prisoners. Two FIRs have also
been registered against the petitioner for abusing and threatening
the Superintendent of the Nagpur Central Prison.
B 23.1. As this Court has already held in a catena of decisions, by
way of a via media between life imprisonment simpliciter and the
death sentence, it may be appropriate to impose a restriction on
the petitioner’s right to remission of the sentence of life
imprisonment, which usually works out to 14 years in prison upon
remission. We may fruitfully refer to the decisions in Swamy
C 69
Shraddananda (2) v. State of Karnataka and Union of India
v. V. Sriharan92, in this regard. We therefore direct that the
petitioner shall remain in prison for the remainder of his life.”
(Emphasis supplied)

D (B) In Ravishankar alias Baba Vishwakarma v. State of
Madhya Pradesh20, the appellant was convicted under Sections 376,
302 and 376A of IPC and also under the provisions of POCSO Act for
having raped and caused the murder by throttling of a 13 years old girl.
The death sentence awarded by the trial court was confirmed by the
High Court but in appeal the death sentence was substituted by this
E Court with imprisonment for life with a direction that “no remission to be
granted and that the appellant shall remain in prison for rest of his life”.
The relevant passages from the decision are:-
“57. Such imposition of a higher standard of proof for purposes
of death sentencing over and above “beyond reasonable doubt”
F necessary for criminal conviction is similar to the “residual doubt”
metric adopted by this Court in Ashok Debbarma v. State of
18
Tripura wherein it was noted that: (SCC p. 763, para 31)
“31.… In our criminal justice system, for recording guilt of the
accused, it is not necessary that the prosecution should prove
G the case with absolute or mathematical certainty, but only beyond
reasonable doubt. Criminal courts, while examining whether
any doubt is beyond reasonable doubt, may carry in their mind,
some “residual doubt”, even though the courts are convinced
of the accused persons’ guilt beyond reasonable doubt.”
92
H (2016) 7 SCC 1 : (2016) 2 SCC Cri 695
SHATRUGHNA BABAN MESHRAM v. 105
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

58. Ashok Debbarma18 drew a distinction between a “residual A
doubt”, which is any remaining or lingering doubt about the
defendant’s guilt which might remain at the sentencing stage despite
satisfaction of the “beyond a reasonable doubt” standard during
conviction, and reasonable doubts which as defined in Krishnan
v. State86 are “actual and substantive, and not merely imaginary,
B
trivial or merely possible”. These “residual doubts” although not
relevant for conviction, would tilt towards mitigating circumstance
to be taken note of whilst considering whether the case falls under
the “rarest of rare” category.
59. This theory is also recognised in other jurisdictions like the
United States, where some State courts like the Supreme Court C
of Tennessee in State v. McKinney93 have explained that residual
doubt of guilt is a valid non-statutory mitigating circumstance during
the sentencing stage and have allowed for new evidence during
sentencing proceedings related to defendant’s character,
background history, physical condition, etc. D
60. The above-cited principles have been minutely observed by
us, taking into consideration the peculiar facts and circumstances
of the case in hand. At the outset, we would highlight that the
High Court while confirming death has observed that the girl was
found bleeding due to forcible sexual intercourse, which fact, E
however, is not supported by medical evidence. However, such
erroneous finding has no impact on conviction under Section 376-
A IPC for a bare perusal of the section shows that only the factum
of death of the victim during the offence of rape is required, and
such death need not be with any guilty intention or be a natural
consequence of the act of rape only. It is worded broadly enough F
to include death by any act committed by the accused if done
contemporaneously with the crime of rape.
Any other interpretation would defeat the object of ensuring safety
of women and would perpetuate the earlier loophole of the rapists
claiming lack of intention to cause death to seek a reduced charge G
under Section 304 IPC as noted in the Report of the Committee
on Amendments to Criminal Law, headed by Justice J.S. Verma,
former Chief Justice of India:

93
74 SW 3d 291 H
106 SUPREME COURT REPORTS [2020] 13 S.C.R.

A “22. While we believe that enhanced penalties in a substantial
number of sexual assault cases can be adjudged on the basis
of the law laid down in the aforesaid cases, certain situations
warrant a specific treatment. We believe that where the offence
of sexual assault, particularly “gang rapes”, is accompanied
by such brutality and violence that it leads to death or a
B
persistent vegetative state (or “PVS” in medical terminology),
punishment must be severe — with the minimum punishment
being life imprisonment. While we appreciate the argument
that where such offences result in death, the case may also be
tried under Section 302 IPC as a “rarest of the rare” case, we
C must acknowledge that many such cases may actually fall
within the ambit of Section 304 (Part II) since the “intention to
kill” may often not be established. In the case of violence
resulting in persistent vegetative state is concerned, we are
reminded of the moving story of Aruna Shanbaug, the young
nurse who was brutally raped and lived the rest of her life (i.e.
D
almost 36 years) in a persistent vegetative state.
23. In our opinion, such situations must be treated differently
because the concerted effort to rape and to inflict violence
may disclose an intention deserving an enhanced punishment.
We have therefore recommended that a specific provision,
E namely, Section 376(3) should be inserted in the Indian Penal
Code to deal with the offence of “rape followed by death or
resulting in a persistent vegetative state”.”
61. In the present case, there are some residual doubts in our
mind. A crucial witness for constructing the last seen theory, PW
F 5 is partly inconsistent in cross-examination and quickly jumps
from one statement to the other. Two other witnesses, PW 6 and
PW 7 had seen the appellant feeding biscuits to the deceased one
year before the incident and their long delay in reporting the same
fails to inspire confidence. The mother of the deceased has
G deposed that the wife and daughter of the appellant came to her
house and demanded the return of the money which she had
borrowed from them but failed to mention that she suspected the
appellant of committing the crime initially. Ligature marks on the
neck evidencing throttling were noted by PW 20 and PW 12 and
in the post-mortem report, but find no mention in the panchnama
H
SHATRUGHNA BABAN MESHRAM v. 107
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

prepared by the police. Viscera samples sent for chemical testing A
were spoilt and hence remained unexamined. Although nails’
scrapings of the accused were collected, no report has been
produced to show that DNA of the deceased was present. Another
initial suspect, Baba alias Ashok Kaurav absconded during
investigation, hence, gave rise to the possibility of involvement of
B
more than one person. All these factors of course have no impact
in formation of the chain of evidence and are wholly insufficient
to create reasonable doubt to earn acquittal.
62. We are cognizant of the fact that use of such “residual doubt”
as a mitigating factor would effectively raise the standard of proof
for imposing the death sentence, the benefit of which would be C
availed of not by the innocent only. However, it would be a
misconception to make a cost- benefit comparison between cost
to society owing to acquittal of one guilty versus loss of life of a
perceived innocent. This is because the alternative to death does
not necessarily imply setting the convict free. D
63. As noted by the United States Supreme Court in Herrera v.
Collins94, “it is an unalterable fact that our judicial system, like
the human beings who administer it, is fallible”. However, death
being irrevocable, there lies a greater degree of responsibility on
the court for an in-depth scrutiny of the entire material on record. E
Still further, qualitatively, the penalty imposed by awarding death
is much different than in incarceration, both for the convict and
for the State. Hence, a corresponding distinction in requisite
standards of proof by taking note of “residual doubt” during
sentencing would not be unwarranted.
F
64. We are thus of the considered view that the present case falls
short of the “rarest of rare” cases where the death sentence alone
deserves to be awarded to the appellant. It appears to us in the
light of all the cumulative circumstances that the cause of justice
will be effectively served by invoking the concept of special
sentencing theory as evolved by this Court in Swamy G
Shraddananda (2)69 and approved in Sriharan case92.”
46. Since reference was made in the aforestated decisions of this
Court to certain decisions of US Supreme Court, we may now consider
94
(1993) SCC OnLine US SC 10 : 122 L Ed 2d 203 H
108 SUPREME COURT REPORTS [2020] 13 S.C.R.

A those decisions and some other decisions of US Supreme Court on the
point and whether the theory of “residual doubt” has found acceptance
in the decisions of US Supreme Court.
A] California vs. Brown90
(a) The relevant facts noted in the opinion of the Court delivered
B by Chief Justice Rehnquist were:-
“Respondent Albert Brown was found guilty by a jury of forcible
rape and first-degree murder in the death of 15- year-old Susan J.
At the penalty phase, the State presented evidence that respondent
had raped another young girl some years prior to his attack on
C Susan J. Respondent presented the testimony of several family
members, who recounted respondent’s peaceful nature and
expressed disbelief that respondent was capable of such a brutal
crime. Respondent also presented the testimony of a psychiatrist,
who stated that Brown killed his victim because of his shame and
D fear over sexual dysfunction. Brown himself testified, stating that
he was ashamed of his prior criminal conduct and asking for mercy
from the jury.”
While instructing the jury to consider the aggravating and mitigating
circumstances and to weigh them in determining the appropriate penalty,
E the trial Court had cautioned the jury-
“that it “must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling.”
The instruction so issued was found to have violated the Eighth
and Fourteenth Amendments by the Supreme Court of California which
F decision was reversed by US Supreme Court as under: -
“We hold that the instruction challenged in this case does not violate
the provisions of the Eighth and Fourteenth Amendments to the
United States Constitution. The judgment of the Supreme Court
of California is therefore reversed, and the cause is remanded for
G further proceedings not inconsistent with this opinion.”
(b) Justice O’Connor authored a concurring opinion and stated:-
“Because the individualized assessment of the appropriateness of
the death penalty is a moral inquiry into the culpability of the
defendant, and not an emotional response to the mitigating evidence,
H
SHATRUGHNA BABAN MESHRAM v. 109
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

I agree with the Court that an instruction informing the jury that A
they “must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling” does
not by itself violate the Eighth and Fourteenth Amendments to the
United States Constitution. At the same time, the jury instructions
– taken as a whole – must clearly inform the jury that they are to
B
consider any relevant mitigating evidence about a defendant’s
background and character, or about the circumstances of the
crime.”
(c) Justice Brennan (with whom Justice Marshall and Justice
Stevens joined) dissented and observed:-
C
“The prosecutor in this case thus interpreted the antisympathy
instruction to require that the jury ignore the defendant’s evidence
on the mitigating factors of his character and upbringing. A similar
construction has been placed on the instruction in several other
cases.”
D
(d) Justice Blackmun (with whom Justice Marshall joined) also
dissented and stated: -
“The sentencer’s ability to respond with mercy towards a
defendant has always struck me as a particularly valuable aspect
of the capital sentencing procedure. ……. E
….In my view, we adhere so strongly to our belief that sentencers
should have the opportunity to spare a capital defendant’s life on
account of compassion for the individual because, recognizing that
the capital sentencing decision must be made in the context of
“contemporary values,” Gregg v. Georgia, 428 U.S., at 181, 96 F
S.Ct., at 2928 (opinion of Stewart, POWELL, and STEVENS,
JJ.), we see in the sentencer’s expression of mercy a distinctive
feature of our society that we deeply value.”
Thus, the entire discussion was confined to the validity of the
instruction given to the Jury and the issue of “residual doubt” never
G
arose for consideration.
B] Franklin v. Lynaugh89
The jury had found Franklin guilty of capital murder. At the
conclusion of penalty hearing, the trial court submitted two “Special
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110 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Issues” to the jury, instructing the jury that if they determined the answer
to both these questions to be “Yes,” Franklin would be sentenced to
death. The issues were:
“Do you find from the evidence beyond a reasonable doubt
that the conduct of the Defendant, Donal Gene Franklin, that
B caused the death of Mary Margaret Moran, was committed
deliberately and with the reasonable expectation that the death
of the deceased or another would result?
Do you find from the evidence beyond a reasonable doubt that
there is a probability that the Defendant, Donald Gene Franklin,
C would commit criminal acts of violence that would constitute a
continuing threat to society.”
Franklin however requested for jury instructions as follows:-
“you are instructed that any evidence which, in your opinion,
mitigates against the imposition of the Death, Penalty, including
D any aspect of the Defendant’s character or record, and any of
the circumstances of the commission of the offense …. may
be sufficient to cause you to have a reasonable doubt as to
whether or not the true answer of any of the Special Issues is
“Yes”; and in the event such evidence does cause you to have
E such a reasonable doubt, you should answer the Issue “No””
The request of Franklin was rejected and the jury answered both
special issues in affirmative whereafter the trial Court imposed death
sentence. In Federal habeas action filed by Franklin, the submission was
recorded:-
F “Petitioner first suggests that the jury may, in its penalty
deliberations, have harbored “residual doubts” about three issues
considered in the guilt phase of his trial: first, petitioner’s identity
as the murderer; second, the extent to which petitioner’s actions
(as opposed to medical mistreatment) actually caused the
victim’s death; and third, the extent to which petitioner’s actions
G
were intended to result in the victim’s death.”
a) The decision of the Court was delivered by Justice White and
the question was formulated as under:-
“In this case, we are called on to determine if the Eighth
H Amendment required a Texas trial court to give certain jury
SHATRUGHNA BABAN MESHRAM v. 111
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

instructions, relating to the consideration of mitigating evidence, A
that petitioner had requested in the sentencing phase of his
capital trial”
Rejecting the challenge it was observed:-
“At the outset, we note that this Court has never held that a
capital defendant has a constitutional right to an instruction B
telling the jury to revisit the question of his identity as the
murderer as a basis for mitigation.
… … …
Our edict that, in a capital case, “ ‘the sentencer . . . may not C
be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense,’ “ Eddings v. Oklahoma, 455
U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (quoting
Lockett, 438 U.S., at 604, 98 S.Ct., at 2964), in no way
mandates reconsideration by capital juries, in the sentencing D
phase, of their “residual doubts” over a defendant’s guilt. Such
lingering doubts are not over any aspect of petitioner’s
“character,” “record,” or a “circumstance of the offense.” This
Court’s prior decisions, as we understand them, fail to recognize
a constitutional right to have such doubts considered as a E
mitigating factor.”
b) Justice O’Connor (with whom Justice Blackmun joined)
authored a concurring judgement and the submission of Franklin was
noted as under:-
“Petitioner also contends that the sentencing procedures F
followed in his case prevented the jury from considering, in
mitigation of sentence, any “residual doubt[s]” it might have
had about his guilt. Petitioner uses the phrase “residual doubts”
to refer to doubts that may have lingered in the minds of jurors
who were convinced of his guilt beyond a reasonable doubt,
but who were not absolutely certain of his guilt. Brief for G
Petitioner 14. The plurality and dissent reject petitioner’s
“residual doubt” claim because they conclude that the special
verdict questions did not prevent the jury from giving mitigating
effect to its “residual doubts” about petitioner’s guilt. See ante
at 2328: post, at 2335. This conclusion is open to question, H
112 SUPREME COURT REPORTS [2020] 13 S.C.R.

A however. Although the jury was permitted to consider evidence
presented at the guilt phase in the course of answering the
special verdict questions, the jury was specifically instructed
to decide whether the evidence supported affirmative answers
to the special questions “beyond a reasonable doubt.” App.
15 (emphasis added). Because of this instruction, the jury might
B not have thought that, in sentencing the petitioner, it was free
to demand proof of his guilt beyond all doubt.”
Justice O’Connor rejected the submission and observed: -
“In my view, petitioner’s “residual doubt” claim fails, not
because the Texas scheme allowed for consideration of
C
“residual doubt” by the sentencing body, but rather because
the Eighth Amendment does not require it. Our cases do not
support the proposition that a defendant who has been found
to be guilty of a capital crime beyond a reasonable doubt has a
constitutional right to reconsideration by the sentencing body
D of lingering doubts about his guilt. We have recognized that
some States have adopted capital sentencing procedures that
permit defendants in some cases to enjoy the benefit of doubts
that linger from the guilt phase of the trial, see Lockhart v.
McCree, 476 U.S. 162, 181, 106 S.Ct. 1758, 1769, 90 L.Ed.2d
137 (1986), but we have never indicated that the Eighth
E Amendment requires States to adopt such procedures. To the
contrary, as the plurality points out, we have approved capital
sentencing procedures that preclude consideration by the
sentencing body of “residual doubts” about guilt. See ante, at
2327, n. 695.
95
F The footnote reads thus:-
“Finding a constitutional right to rely on a guilt-phase jury’s “residual doubts” about
innocence when the defense presents its mitigating case in the penalty phase is arguably
inconsistent with the common practice of allowing penalty-only trials on remand of
cases where a death sentence-but not the underlying conviction-is struck down on
appeal. See, e.g. Scott v. State, 310 Md. 277, 301, 529 A.2d 340, 352 (1987); Stringer
v. State, 492 A.2d 928, 946 (Miss.1986); Whalen v. State, 492 A.2d 552, 569 (Del.1985).
G Cf. Lockhart v. McCree, 476 U.S., at 205, 106 S.Ct., at 1781 (MARSHALL, J.
dissenting).
In fact, this Court has, on several previous occasions, suggested such a method of
proceeding on remand, See, e.g. , Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct.
1821, 1824, 95 L.Ed.2d 347 (1987). Moreover, petitioner himself, in suggesting the
appropriate relief in this case, asked only that he be “resentenced in a proceeding that

H
SHATRUGHNA BABAN MESHRAM v. 113
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Our decisions mandating jury consideration of mitigating A
circumstances provide no support for petitioner’s claim because
“residual doubt” about guilt is not a mitigating circumstance.
We have defined mitigating circumstances as facts about the
defendant’s character or background, or the circumstances of
the particular offense, that may call for a penalty less than
B
death. See California v. Brown, 479 U.S., at 541, 107 S.Ct.,
at 839; id., at 544, 107 S.Ct., at 840 (O’CONNOR, J.,
concurring); Eddings, 455 U.S., at 110, 112, 102 S.Ct., at 874,
875; id., at 117, 102 S.Ct., at 878 (O’CONNOR, J., concurring);
Lockett, 438 U.S., at 605, 98 S.Ct., at 2965. “Residual doubt”
is not a fact about the defendant or the circumstances of the C
crime. It is instead a lingering uncertainty about facts, a state
of mind that exists somewhere between “beyond a reasonable
doubt” and “absolute certainty.” Petitioner’s “residual doubt”
claim is that the States must permit capital sentencing bodies
to demand proof of guilt to “an absolute certainty” before
D
imposing the death sentence. Nothing in our cases mandates
the imposition of this heightened burden of proof at capital
sentencing.
(Emphasis supplied)
During the course of her judgment, Justice O’Connor also made E
following observations: -
“In my view, the principle underlying Lockett96, Eddings97,
and Hitchcock98 is that punishment should be directly related
to the personal culpability of the criminal defendant.
“Evidence about the defendant’s background and character is F
relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no
comports with requirements of Lockett” – not that he be retried in full so as to have the G
benefit of any potential guilt-phase “residual doubts.” See Brief for petitioner 21.
In sum, we are quite doubtful that such “penalty-only” trials are violative of a defendant’s
Eighth Amendment rights. Yet such is the logical conclusion of petitioner’s claim of a
constitutional right to argue “residual doubts” to a capital sentencing jury.”
96
438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)
97
455 U.S. 104, 102 S.Ct. 869. 71 L.Ed.2d 1 (1982)
98
481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) H
114 SUPREME COURT REPORTS [2020] 13 S.C.R.

A such excuse…. Thus, the sentence imposed at the penalty stage
should reflect a reasoned moral response to the defendant’s
background, character, and crime.” California v. Brown, 479
U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)
(O’CONNOR, J., concurring) (emphasis in original)
B In light of this principle it is clear that a State may not
constitutionally prevent the sentencing body from giving effect
to evidence relevant to the defendant’s background or character
or the circumstances of the offense that mitigates against the
death penalty. Indeed, the right to have the sentencer consider
and weigh relevant mitigating evidence would be meaningless
C unless the sentencer was also permitted to give effect to its
consideration.
Under the sentencing procedure followed in this case the jury
could express its views about the appropriate punishment only
by answering the special verdict questions regarding the
D deliberations of the murder and the defendant’s future
dangerousness. To the extent that the mitigating evidence
introduced by petitioner was relevant to one of the special
verdict questions, the jury was free to give effect to that
evidence by returning a negative answer to that question. If,
E however, petitioner had introduced mitigating evidence about
his background or character or the circumstances of the crime
that was not relevant to the special verdict questions, or that
had relevance to the defendant’s moral culpability beyond the
scope of the special verdict questions, the jury instructions would
have provided the jury with no vehicle for expressing its
F “reasoned moral responds” to that evidence.”
… … …
Noting in Lockett or Eddings requires that the sentencing
authority be permitted to give effect to evidence beyond the
G extent to which it is relevant to the defendant’s character or
background or the circumstances of the offense.”
(c) The dissenting opinion authored by Justice Stevens (joined by
Justice Brennan and Justice Marshall) stated: -
“In requiring that the discretion of the sentencer in capital
H sentencing be guided, we have never suggested that the
SHATRUGHNA BABAN MESHRAM v. 115
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

sentencer’s discretion could be guided by blinding it to relevant A
evidence. The hallmark of a sentencing scheme that sufficiently
guides and directs the sentencer is the presence of procedures
that “require the jury to consider the circumstances of the crime
and the criminal before it recommends sentence.” Id., at 197,
96 S.Ct., at 2936. The requirement that the State not bar the
B
sentencer from considering any mitigating aspect of the offense
or the offender only furthers the goal of focusing the sentencer’s
attention on the defendant and the particular circumstances of
the crime.”
C] Herrera Vs. Collins94
C
The syllabus prepared by the Reporter of Decisions summed up
the facts as under :-
“On the basis of proof which included two eyewitness
identifications, numerous pieces of circumstantial evidence, and
petitioner Herrera’s handwritten letter impliedly admitting his guilt, D
Herrera was convicted of the capital murder of Police Officer
Carrisalez and sentenced to death in January 1982. After pleading
guilty, in July 1982, to the related capital murder of Officer Rucker,
Herrera unsuccessfully challenged the Carrisalez conviction on
direct appeal and in two collateral proceedings in the Texas state
courts, and in a federal habeas petition. Ten years after his E
conviction, he urged in second federal habeas proceeding that
newly discovered evidence demonstrated that he was “actually
innocent” of the murders of Carrisalez and Rucker, and that the
Eighth Amendment’s prohibition against cruel and unusual
punishment and the Fourteenth Amendment’s due process F
guarantee therefore forbid his execution. He supported this claim
with affidavits tending to show that his now-dead brother had
committed the murders. The District Court, inter alia, granted
his request for a stay of execution so that he could present his
actual innocence claim and the supporting affidavits in state court.
In vacating the stay, the Court of Appeals held that the claim was G
not cognizable on federal habeas absent, an accompanying federal
constitutional violation.”

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116 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Rejecting federal habeas petition preferred by Herrera, Chief
Justice Rehnquist delivered the opinion of the Court and stated:-
“… … In capital cases, we have required additional protections
because of the nature of the penalty at stake. See, e.g., Beck v.
Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)
B (jury must be given option of convicting the defendant of a lesser
offense). All of these constitutional safeguards, of course, make
it more difficult for the State to rebut and finally overturn the
presumption of innocence which attaches to every criminal
defendant. But we have also observed that “ due process does
not require that every conceivable step be taken, at whatever
C cost, to eliminate the possibility of convicting an innocent person.”
Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326,
53 L.Ed.2d 281 (1977). To conclude otherwise would all but
paralyze our system for enforcement of the criminal law.
… … …
D
Petitioner asserts that this case is different because he has been
sentenced to death. But we have “refused to hold that the fact
that a death sentence has been imposed requires a different
standard of review on federal habeas corpus.” Murray v.
Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1
E 91989) (plurality opinion). We have, of course, held that the Eighth
Amendment requires increased reliability of the process by which
capital punishment may be imposed. See, e.g., McKoy v. North
Carolina, 494 U.S.433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)
(unanimity requirement impermissibly limits jurors’ consideration
F of mitigating evidence); Eddings v. Oklahoma, 455 U.S. 104,
102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (jury must be allowed to
consider all of a capital defendant’s mitigating character evidence);
Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57
L.Ed.2d 973 (1978|) (plurality opinion) (same). But petitioner’s
claim does not fit well into the doctrine of these cases, since, as
G we have pointed out, it is far from clear that a second trial 10
years after the first trial would produce a more reliable result.
Perhaps mindful of this, petitioner urges not that he necessarily
receive a new trial, but that his death sentence simply be vacated

H
SHATRUGHNA BABAN MESHRAM v. 117
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

if a federal habeas court deems that a satisfactory showing of A
“actual innocence” has been made. Tr. Of Oral Arg. 19-20. But
such a result is scarcely logical; petitioner’s claim is not that some
error was made in imposing a capital sentence upon him, but that
a fundamental error was made in finding him guilty of the underlying
murder in the first place. It would be a rather strange jurisprudence,
B
in these circumstances, which held that under our Constitution he
could not be executed, but that he could spend the rest of his life
in prison.
… … …
Executive clemency has provided “fail safe” in our criminal justice C
system. K. Moore, Pardons: Justice, Mercy, and the Public Interest
131 (1989). It is an unalterable fact that our judicial system, like
the human beings who administer it, is fallible. But history is replete
with examples of wrongfully convicted persons who have been
pardoned in the wake of after-discovered evidence establishing
their innocence……” D

Justice O’Connor (joined by Justice Kennedy) delivered a
concurring opinion. Justice Scalia (joined by Justice Thomas) also
rendered a concurring opinion. Another concurring opinion was rendered
by Justice White, while Justice Blackmun (joined by Justice Stevens and
Justice Souter) dissented. E

D] Oregon vs. Guzek99
The syllabus prepared by the Reporter of Decisions stated the
facts as under :-
“At the guilt phase of respondent Guzek’s capital murder trial, his F
mother was one of two witnesses who testified that he had been
with her on the night the crime was committed. He was convicted
and sentenced to death. Twice, the Oregon Supreme Court vacated
the sentence and ordered new sentencing proceedings, but each
time Guzek was again sentenced to death. Upon vacating his
G
sentence for a third time, the State Supreme Court held that the
Eighth and Fourteenth Amendments provide Guzek a federal
constitutional right to introduce live alibi testimony from his mother
at the upcoming resentencing proceeding. After this Court granted
99
546 US 517 (2006)
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118 SUPREME COURT REPORTS [2020] 13 S.C.R.

A certiorari, Guzek filed a motion to dismiss the writ as improvidently
granted.”
The decision of the Oregon Supreme Court was reversed by US
Supreme Court. The opinion of the Court was delivered by Justice Breyer
with following observations:-
B “4. As our discussion in Part II, supra, makes clear, the federal
question before us is a narrow one. Do the Eighth and Fourteenth
Amendments grant Guzek a constitutional right to present evidence
of the kind he seeks to introduce, namely, new evidence that shows
he was not present at the scene of the crime. That evidence is
C inconsistent with Guzek’s prior conviction. It sheds no light on
the manner in which he committed the crime for which he has
been convicted. Nor is it evidence that Guzek contends was
unavailable to him at the time of the original trial. And, to the
extent it is evidence he introduced at that time, he is free to
introduce it now, albeit in transcript form. Ore.Rev.Stat.§
D 138.012(2)(b) (2003). We can find nothing in the Eighth or
Fourteenth Amendments that provides a capital defendant a right
to introduce new evidence of this kind at sentencing.
We cannot agree with the Oregon Supreme Court that our previous
cases have found in the Eighth Amendment a constitutional right
E broad enough to encompass the evidence here at issue. In Lockett
v. Ohio, supra, a plurality of this Court decided that a defendant
convicted of acting in concert with others to rob and to kill could
introduce at the sentencing stage evidence that she had played a
minor role in the crime, indeed, that she had remained outside the
F shop (where the killing took place) at the time of the crime. A
plurality of the Court wrote that,
“the Eighth and Fourteenth Amendments require that the
sentencer ... not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and
G any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.” Id., at
604, 98 S.Ct. 2954 (emphasis added and deleted).
And in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869,
71 L.Ed.2d 1, the Court majority adopted this statement. See
also McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756,
H
SHATRUGHNA BABAN MESHRAM v. 119
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

95 L.Ed.2d 262 (1987); Bell v. Ohio, 438 U.S. 637, 642, 98 A
S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (plurality opinion).
But the evidence at issue in these cases was traditional
sentence-related evidence, evidence that tended to show how,
not whether, the defendant committed the crime. Nor was the
evidence directly inconsistent with the jury’s finding of guilt.” B
Justice Scalia (joined by Justice Thomas) delivered a concurring
opinion
E] Abdul Kabir vs. Quarterman100
In this case, the theory of “residual doubt” did not come up for C
consideration. However in the judgement of the Court delivered by
Justice Stevens, the opinion of Justice O’Connor in Franklin vs.
Lynaugh89 was referred to as under:-
“What makes Franklin significant, however, is the separate
opinion of Justice O’Connor, and particularly those portions of D
her opinion expressing the views of five Justices, see infra, at
1668 – 1669, and n.15. After summarizing the cases that clarified
Jurek’s holding she worte:
“In my view, the principle underlying Lockett, Eddings, and
Hitchcock is that punishment should be directly related to the
E
personal culpability of the criminal defendant.
“Evidence about the defendant’s background and character is
relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems,
F
may be less culpable than defendants who have no such excuse….
Thus, the sentence imposed at the penalty stage should reflect a
reasoned moral response to the defendant’s background, character,
and crime.’ California v. Brown, 479 U.S. 538, 545, 107 S.Ct.
837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring) (emphasis
in original). G
“In light of this principle it is clear that a State may not
constitutionally prevent the sentencing body from giving effect to
the evidence relevant to the defendant’s background or character

100
550 US 233 (2007) H
120 SUPREME COURT REPORTS [2020] 13 S.C.R.

A or the circumstances of the offense that mitigates against the
death penalty. Indeed, the right to have the sentencer consider
and weigh relevant mitigating evidence would be meaningless
unless the sentencer was also permitted to give effect to its
consideration.
B “Under the sentencing procedure followed in this case the jury
could express its views about the appropriate punishment only by
answering the special verdict questions regarding the deliberateness
of the murder and the defendant’s future dangerousness. To the
extent that the mitigating evidence introduced by petitioner was
relevant to one of the special verdict questions, the jury was free
C to give effect to that evidence by returning a negative answer to
that question. If, however, petitioner had introduced mitigating
evidence about his background or character or the circumstances
of the crime that was not relevant to the special verdict questions,
or that had relevance to the defendant’s moral culpability beyond
D the scope of the special verdict questions, the jury instructions
would have provided the jury with no vehicle for expressing its
‘reasoned moral response’ to that evidence.” 487 U.S. at 184-
185, 108 S.Ct. 2320 (opinion concurring in Judgment) (emphasis
added).”
E 47. We may also note the decision of the Supreme Court of
Tennessee in State vs. Mckinney93, as it was referred to in the decision
of this Court in Ravishankar alias Baba Vishwakarma vs. State of
Madhya Pradesh20.
In that case, the Defence Counsel sought to refer to the evidence
F from the “Guilt Phase” of the trial during his closing argument in the
sentencing phase of the trial. Whether the decision in not permitting him
to do so was correct, was the issue.
The opinion of the Court observed: -
“Residual doubt evidence,” in general, may consist of proof
G admitted during the sentencing phase that indicates the
defendant did not commit the offense, notwithstanding the jury’s
verdict following the guilt phase “
… … …

H
SHATRUGHNA BABAN MESHRAM v. 121
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

“In contrast, the present case does not involve a resentencing A
procedure, nor does it involve a defendant’s effort to introduce
evidence of residual doubt. Instead, the defendant only sought
to argue evidence that had already been admitted by the trial
court and heard by the same jury in the guilt phase of the trial.
“
B
… … …
“…..Moreover, given that this was not a resentencing hearing,
the reality is that the sentencing jury had already heard the
testimony underlying defense counsel’s proposed argument and
had reconciled it in favor of the State’s theory of guilt and C
against the defendant’s theory of innocence “
It was concluded: -
“.......(4) the trail court’s refusal to allow defense counsel to
refer to evidence from the guilt phase of the trial during his
closing argument in the sentencing phase of the trial did not D
affect the jury’s determination to the prejudice of the defendant
and was harmless error. “
48. The principles that emerge from the decisions of U.S. Supreme
Court are: -
E
(i) “….this Court has never held that a capital defendant has a
constitutional right to an instruction telling the jury to revisit the
question of his identity as the murderer as a basis for mitigation.….”
Justice White speaking for the Court in Franklin vs. Lynaugh89.
(ii) “….Our edict that, in a capital case, “ ‘the sentencer. . . [may] F
not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense,’….. in no way mandates
reconsideration by capital juries, in the sentencing phase, of their
“residual doubts” over a defendant’s guilt “
G
Justice White speaking for the Court in Franklin vs. Lynaugh89.
(iii) “…… Our cases do not support the proposition that a defendant
who has been found to be guilty of a capital crime beyond a
reasonable doubt has a constitutional right to reconsideration by
the sentencing body of lingering doubts about his guilt......” H
122 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Justice O’Connor in concurringopinion in Franklin vs.
89
Lynaugh
(iv) “… we have approved capital sentencing procedures that
preclude consideration by the sentencing body of “residual doubts”
about guilt.…”
B
Justice O’Connor in concurring opinion in Franklin vs.
Lynaugh89.
(v) “…..Our decisions mandating jury consideration of mitigating
circumstances provide no support for petitioner’s claim because
C “residual doubt” about guilt is not a mitigating circumstance “
Justice O’Connor in concurring opinion in Franklin vs.
Lynaugh89.
(vi) “… Residual doubt” is not a fact about the defendant or the
circumstances of the crime. It is instead a lingering uncertainty
D about facts, a state of mind that exists somewhere between “beyond
a reasonable doubt” and “absolute certainty.” Petitioner’s “residual
doubt” claim is that the States must permit capital sentencing bodies
to demand proof of guilt to “an absolute certainty” before imposing
the death sentence. Nothing in our cases mandates the imposition
of this heightened burden of proof at capital sentencing. (Emphasis
E
added)”
Justice O’Connor in concurring opinion in Franklin vs.
Lynaugh89.
(vii)“…In capital cases, we have required additional protections
F because of the nature of the penalty at stake.…..(jury must be
given option of convicting the defendant of a lesser offense). All
of these constitutional safeguards, of course, make it more difficult
for the State to rebut and finally overturn the presumption of
innocence which attaches to every criminal defendant. But we
G have also observed that “due process does not require that every
conceivable step be taken, at whatever cost, to eliminate the
possibility of convicting an innocent person.”........To conclude
otherwise would all but paralyze our system for enforcement of
the criminal law.”

H
SHATRUGHNA BABAN MESHRAM v. 123
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Chief Justice Rehnquist speaking for the Court in Herrera Vs. A
Collins94.
(viii) “…..It would be a rather strange jurisprudence, in these
circumstances, which held that under our Constitution he could
not be executed, but that he could spend the rest of his life in
prison.........” B

Chief Justice Rehnquist speaking for the Court in Herrera Vs.
Collins94.
(ix)“….. Do the Eighth and Fourteenth Amendments grant Guzek
a constitutional right to present evidence of the kind he seeks to C
introduce, namely, new evidence that shows he was not present
at the scene of the crime. That evidence is inconsistent with
Guzek’s prior conviction. It sheds no light on the manner in which
he committed the crime for which he has been convicted......”

Justice Breyer speaking for the Court in Oregon vs. Guzek99. D

(x) “….. But the evidence at issue in these cases was traditional
sentence-related evidence, evidence that tended to show how,
not whether, the defendant committed the crime. Nor was the
evidence directly inconsistent with the jury’s finding of guilt.......”
E
Justice Breyer speaking for the Court in Oregon vs. Guzek99.
(xi) “The sentencer’s ability to respond with mercy towards a
defendant has always struck me as a particularly valuable aspect
of the capital sentencing procedure.........”
The observations in the dissenting opinion of Justice Blackmun in F
90
California vs. Brown .
49. Following features from these decisions of U.S. Supreme Court
are noteworthy:-
(A) As the decision in California vs. Brown90 discloses, the jury G
trial comprises of two phases. The first is called “Guilt Phase” where
the question for determination is whether the offence as alleged has
been proved by the prosecution which is akin to “conviction stage” in
our jurisprudence; while the second phase is called “Penalty Phase” at
which stage the question for consideration is about the appropriate penalty
H
124 SUPREME COURT REPORTS [2020] 13 S.C.R.

A to be awarded when the guilt is established which is similar to “sentence
stage” in our jurisprudence.
In both the phases, the basic issues are to be dealt with by jurors
who are drawn from cross sections of the society, while the function for
such determination and consideration in our jurisprudence is entrusted to
B judicial officers adequately trained and appropriately equipped with
practical experience. A jury is likely to be swayed by emotions or
sentiments, which is why the caution was given to the jury by the trial
court in California vs. Brown90. But that element or possibility gets
ruled out when an experienced judicial officer is entrusted with the
C requisite task.
(B) Secondly, there can be fresh sentencing procedure on as many
as four occasions as the decision in Oregon vs. Guzek99 shows or the
process of challenge may take considerable time as the decision in
Herrera vs. Collins94 discloses. Naturally, there would be some time
D gap between two phases, possibly leading to a situation where the
composition of the jury at the “Penalty Phase” may not be same as it
was at the “Guilt Phase”. Consequently, the attempts on part of the
defence to highlight any area or aspect in the evidence which could be
said to be doubtful in the hope that there could be a change in perception.
This possibility again does not arise in our jurisprudence, as the same
E judicial officer who heard and decided the matter at the conviction stage
is to decide the matter at the sentence stage and without any undue
lapse of time.
(C) At the “Penalty Phase”, the Prosecutor and the Defence are
allowed to lead evidence. Whether such leading of evidence may also
F include evidence touching upon the identity of the Accused or his role in
the transaction or any matter concerning evidence leading to determination
of his guilt were the issues in Oregon vs. Guzek99 and the portion
extracted from that decision shows the approach adopted by US Supreme
Court. In our jurisprudence, if there be any new evidence which may go
G to the root of the matter, leading of such evidence can be permitted at
the appellate stage subject to fulfilment of governing principles.
These features are only illustrative to say that the theory of “residual
doubt” that got developed was a result of peculiarity in the process
adopted. Even then, what is material to note is that the theory has
consistently been rejected by U.S. Supreme Court and as stated by
H
SHATRUGHNA BABAN MESHRAM v. 125
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

Justice O’Connor: - “Nothing in our cases mandated the imposition A
of this heightened burden of proof at capital sentencing”.
50. (A) In Ashok Debbarma18, after noticing the decisions of US
Supreme Court in California vs. Brown 90 and in Franklin vs.
Lynaugh89, it was observed that “residual doubt” as a mitigating
circumstance did not find favour with various Courts in the United States. B
On facts, it was however observed that the Court entertained
“lingering doubt” as to “whether the appellant alone could have
executed the crime single-handedly, especially when the prosecution
itself says that it was handiwork of a large group of people”. Thus,
the doubt that was entertained was not about the guilt of the accused C
simpliciter or about his involvement in the crime but whether the appellant
alone could have committed the crime which resulted in the death of as
many as 35 persons and such doubt weighed with the Court while
commuting death sentence to imprisonment for life.
It must be stated here that what was paraphrased in paragraph D
33 of the decision was the relevant portion from the opinion of Justice
O’Connor in Franklin v. Lynaugh89 and not from the decision in
California v. Brown90.
(B) In Sudam alias Rahul Kaniram Jadhav v. State of
Maharashtra19, it was noted in paragraph 19.1 that there would be no E
bar on the award of death sentence in cases based on circumstantial
evidence. Thereafter, the decision in Ashok Debbarma18 was considered
and the Court observed that in several cases, “quality of evidence to a
higher standard” was insisted upon for passing the irrevocable sentence
of death and reliance was placed on the decision in Mohd. Mannan vs. F
State of Bihar80. The deduction in paragraph 21 rested inter alia on the
aspect that “the nature of the circumstantial evidence in this case amounts
to a circumstance significant enough to tilt the balance of aggravating
and mitigating circumstances in the petitioner’s favour”.
(C) In Ravishankar20 it was observed that “imposition of a higher G
standard of proof for the purposes of death sentencing over and above
beyond reasonable doubt necessary for criminal conviction is similar to
the residual doubt metric adopted by this Court in Ashok Debbarma vs.
State of Tripura18…”. In this case, as per paragraph 10 of the decision,
blood samples of six suspects were sent for DNA analysis but only
H
126 SUPREME COURT REPORTS [2020] 13 S.C.R.

A DNA profile from the blood of the appellant matched with that from the
vaginal slide of the deceased. Additionally, reliance was placed by the
prosecution on the testimony of PWs 5, 6 and 7, as set out in paragraphs
17 and 18. The reason why the version coming from PWs 5, 6 and 7
could not inspire complete confidence was dealt with in paragraph 61. It
was further observed that another suspect Baba alias Ashok Kaurav
B
having absconded during investigation, there was possibility of involvement
of more than one person, giving rise to the same safety filter adopted in
Ashok Debbarma18.
51. These cases thus show that the matters were considered from
the standpoint of individual fact situation where, going by the higher or
C stricter standard for imposition of death penalty, alternative to death
sentence was found to be appropriate.
52. When it comes to cases based on circumstantial evidence in
our jurisprudence, the standard that is adopted in terms of law laid down
by this Court as noticed in Sharad Birdhichand Sarda34 and subsequent
D decisions is that the circumstances must not only be individually proved
or established, but they must form a consistent chain, so conclusive as to
rule out the possibility of any other hypothesis except the guilt of the
accused. On the strength of these principles, the burden in such cases is
already of a greater magnitude. Once that burden is discharged, it is
E implicit that any other hypothesis or the innocence of the accused, already
stands ruled out when the matter is taken up at the stage of sentence
after returning the finding of guilt. So, theoretically the concept or theory
of “residual doubt” does not have any place in a case based on
circumstantial evidence. As a matter of fact, the theory of residual doubt
was never accepted by US Supreme Court as discussed earlier.
F
However, as summed up in Kalu Khan17, while dealing with cases
based on circumstantial evidence, for imposition of a death sentence,
higher or stricter standard must be insisted upon. The approach to be
adopted in matters concerning capital punishment, therefore ought to be
in conformity with the principles culled out in paragraph 41 hereinabove
G
and the instant matter must therefore be considered in the light of those
principles.
53. If the present case is so considered, the discussion must broadly
be classified under following two heads:-
H
SHATRUGHNA BABAN MESHRAM v. 127
STATE OF MAHARASHTRA [UDAY UMESH LALIT, J.]

(A) Whether the circumstantial evidence in the present case is A
of unimpeachable character in establishing the guilt of the
Appellant or leads to an exceptional case.
(B) Whether the evidence on record is so strong and convincing
that the option of a sentence lesser than a death penalty is
foreclosed. B
Going by the circumstances proved on record and, more particularly
the facets detailed in paragraph 19 hereinabove as well as the law laid
down by this Court in series of decisions, the circumstances on record
rule out any hypothesis of innocence of the Appellant. The circumstances
are clear, consistent and conclusive in nature and are of unimpeachable
C
character in establishing the guilt of the Appellant. The evidence on
record also depicts an exceptional case where two and half years old
girl was subjected to sexual assault. The assault was accompanied by
bites on the body of the victim. The rape was of such intensity that there
was merging of vaginal and anal orifices of the victim. The age of the
victim, the fact that the Appellant was a maternal uncle of the victim and D
the intensity of the assault make the present case an exceptional one.
However, if the case is considered against the second head, we
do not find that the option of a sentence lesser than death penalty is
completely foreclosed. It is true that the sexual assault was very severe
and the conduct of the Appellant could be termed as perverse and
E
barbaric. However, a definite pointer in favour of the Appellant is the
fact that he did not consciously cause any injury with the intent to
extinguish the life of the victim. Though all the injuries are attributable to
him and it was injury No.17 which was the cause of death, his conviction
under Section 302 IPC is not under any of the first three clauses of
Section 300 IPC. In matters where the conviction is recorded with the F
aid of clause fourthly under Section 300 of IPC, it is very rare that the
death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45
and 64 of the Chart tabulated in paragraph 30 hereinabove, where the
victims were below 16 years of age and had died during the course of
sexual assault on them, the maximum sentence awarded was life
sentence. This aspect is of crucial importance while considering whether G
the option of a sentence lesser than death penalty is foreclosed or not.
54. We therefore, find that though the Appellant is guilty of the
offence punishable under Section 302 IPC, since there was no requisite
intent as would bring the case under any of the first three clauses of
H
128 SUPREME COURT REPORTS [2020] 13 S.C.R.

A Section 300 IPC, the offence in the present case does not deserve death
penalty.
55. The second count on which death sentence has been imposed
is under Section 376A of IPC. As noted earlier, the offence was committed
on 11.02.2013 and just few days before such commission, Section 376A
B was inserted in IPC by the Ordinance. As concluded by us in paragraph
16 hereinabove, the ex-post facto effect given to Section 376A inserted
by the Amendment Act would not in any way be inconsistent with sub-
Article (1) of Article 20 of the Constitution. The Appellant is thus definitely
guilty of the offence punishable under Section 376A IPC. But the question
remains whether punishment lesser than death sentence gets ruled out
C or not. As against Section 302 IPC while dealing with cases under Section
376A IPC, a wider spectrum is available for consideration by the Courts
as to the punishment to be awarded. On the basis of the same aspects
that weighed with us while considering the appropriate punishment for
the offence under Section 302 IPC, in view of the fact that Section
376A IPC was brought on the statute book just few days before the
D commission of the offence, the Appellant does not deserve death penalty
for said offence.
At the same time, considering the nature and enormity of the
offence, it must be observed that the appropriate punishment for the
offence under Section 376A IPC must be rigorous imprisonment for a
E term of 25 years.
56. In view of the aforestated conclusions drawn by us, it is not
necessary to deal with the submissions IV, V, VI, VII, VIII and IX,
advanced by Ms. Mathur, learned Senior Advocate in respect of the
issue of sentence.
F 57. Consequently, while affirming the view taken by the Courts
below in recording conviction of the Appellant for the offences punishable
under Sections 302 IPC and 376A IPC, we commute the sentence to
life imprisonment for the offence punishable under Section 302 IPC and
to that of rigorous imprisonment for 25 years for the offence punishable
G under Section 376A IPC. The conviction and sentence recorded by the
Courts below for the offences punishable under Section 376(1), (2)(f),
(i) and (m) of IPC, and under Section 6 of the POCSO Act are affirmed.
58. These appeals are allowed to the aforesaid extent.

H Ankit Gyan Appeals partly allowed.