Holding

The conviction and death sentence are upheld as the circumstantial evidence meets all legal tests and the case qualifies as "rarest of rare".

Summary

The appellant, Shivaji @ Dadya Shankar Alhat, was convicted of raping and murdering a nine‑year‑old girl and sentenced to death under Sections 302 and 376(2)(5) IPC. The prosecution case rested entirely on circumstantial evidence, including eyewitnesses who saw the accused with the victim, the recovery of the victim’s body, rope and blood‑stained clothing, and the absence of any credible alibi. The Supreme Court examined the established tests for circumstantial evidence and found the evidence cogent, consistent only with the accused’s guilt, and leaving no reasonable doubt. Applying the "rarest of rare" doctrine, the Court held that the brutality of the crime, the victim’s vulnerability, and the aggravating circumstances warranted the death penalty. Consequently, the Court affirmed the trial and High Court judgments, dismissing the appeal.

Issues considered

The adequacy of circumstantial evidence to sustain conviction for rape and murder.
Whether the death sentence is appropriate under the "rarest of rare" standard.
Whether the trial court’s sentencing complies with Section 366 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 366
Indian Penal Code, 1860s. 302, s. 376(2)(5)

Subjects

circumstantial evidencedeath penaltyrarest of rarerapemurderminor victimsentencingIPCCrPCconviction

Judgment

[2008] 13 S.C.R. 81
~.J-

SHIVAJI @ DADYA SHANKAR ALHAT A
II.
THE STATE OF MAHARASHTRA
(Criminal Appeal No.1409 of 2008)
SEPTEMBER 5, 2008
B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.)

Penal Code, 1860; Ss.302 and 376 (2)(5):
Rape and murder of a minor girl - Conviction - Death c
sentence - Correctness of - Held: Deceased was a helpless
poor girl of tender age having no protection of the father -
Before murder of the deceased she was last seen by
prosecution witnesses going alongwith accused towards hill
side - Her dead body was recovered from hill side - Evidence D
of relative prosecution witnesses corroborated by evidence of
independent prosecution witnesses - Circumstantial evidence
though not direct to the point in issue, but consists of facts so
closely associated with the fact in issue that taken together
forming a chain of circumstances from which existence of E
principal fact, could be legally inferred/presumed - In view of
propositions laid down by Supreme Court, the instant case is
covered under the category of rarest of rare case and death
sentence is warranted - Trial court rightly found the evidence
..... cogent and convicted the accused for committing offences of F
rape and murder and also sentencing him to death sentence
- Hence, judgment of High Court confirming the conviction
and sentence imposed by trial court does not warrant any
interference - Code of Criminal Procedure, 1973 - S.366.
Sentencing - Proportion between crime and punishment G
- Determination of
Evidence:

81 H

.,..
82 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Circumstantial evidence - Conviction based solely on -
Tests laid down by Supreme Court - Discussed.
On the fateful day, accused-appellant, had taken the
deceased, a minor girl along with him to a hill on the
pretext of giving her fuel wood. The accused allegedly
8 raped and assaulted her with a sharp edged weapon and
committed her murder by strangulating her with a rope.
When she did not return home, the grandmother of the
deceased lodged a missing complaint in the police station.
On receipt of information from one 'S', mother of the
C deceased recovered her dead body from the hill and
lodged an FIR stating that the accused had committed
rape and murder of her daughter. Police arrested the
accused and investigated the matter. Trial Court found
the accused guilty of committing the offences of rape
D and murder punishable ulss. 376 and s.302 IPC and
imposed death sentence. Appeal filed thereagainst by the
appellant was dismissed and the reference made under
s.366 IPC was confirmed by the High Court. Hence the
present appeal.
E Accused appellant contended that the case at hand
is based on circumstantial evidence and the
circumstances do not warrant conclusion of guilt of the
accused; and that since the conviction was based on
circumstantial evidence, death sentence should not have
F been awarded and in any event this is not a case where ,..
death sentence should have been imposed.
Respondent-State submitted that trial court and the
High Court have analysed the evidence in great detail to
G show the horrendous manner in which a tiny girl was put
to death by the accused after ravishing her; that the
circumstances which have been highlighted by the
prosecution relate to the fact that the accused was last
seen in the company of the deceased and injury on the
abdomen and also to the recovery of the rope by which
H
SHIVAJI @ DADYA SHANKAR ALHAT v. THE 83
... ~ STATE OF MAHARASHTRA

the deceased was strangulated at the instance of the A
accused; that the accused was arrested from a place
where he was hiding and th.e presence of blood on his
cloth is are relevant factors; and that the plea of alibi set
up by accused has. not been established.
Dismissing the appeal, the Court B

HELD: 1.1 From the evidence of mother (PW 1),
grandmother (PW 7) and sister (PW 8) of the deceased, it
appears that they are a poor family..PW I is lame and at
the relevant time she was deserted by her husband. PW1 c
and her daughters used to stay with her mother who was
about 69 Years old. PW1 used to work as a maid and
used to be away from the house for long hours in
connection with work leaving in the house her mother
and three daughters. The daughters used to do
'1 D
household and used to go to school. The deceased was
thus a helpless poor girl of tender age. She had no
protection of the father. She was, therefore, a vulnerable
girl. (Para - 6) [95-D-F]
1.2 PW 7 has stated that the accused was residing E
near their house. He was not doing any work. His wife
and children were not residing with him. Since the
accused used to stay in hilly area the deceased used to
sometimes give him bread. PW 6 and PW 9 stay in the
, same village where the deceased was staying. They have F
~

also confirmed that the accused used to stay in the same
village. Therefore, that the accused was staying near the
house of the deceased and was known to her has been
established. (Para - 7) [95-F-H]
1.3 Evidence of PW 8, the minor daughter of PW1, is G
crucial to the prosecution case and it also inspires
).- confidence. She has stated that on the day of occurence,
she had gone with her sister, the deceased, towards the
borewell in order to fetch water, at about 11.30 a.m. The
construction work of one Gaikar was going on and the H
84 SUPREME COURT REPORTS [2008] 13 S.C.R.

A accused was sitting on the slab there. The accused met
them and told the deceased that he would give her fuel
wood from the hill. Thereafter they came home. The
deceased kept her pitcher in the house. She took a towel
and a sickle and went alongwith the accused towards the
B Manmodya hill. She has further stated that as her mother r
was not present she told her grandmother that the
deceased had gone along with the accused to bring fuel
wood. When her mother came back at 4.30 p.m. she told
her mother that the deceased had gone along with the
c accused. Since the deceased did not come back they
started searching for her. The body of the deceased was
found on the next day on the hill. This witness has stood
the test of cross examination very well. She has stuck to
her version in the examination-in-chief. There is not a single
discrepancy in her evidence. The trial Court and the High
0
Court rightly placed reliance on her evidence. The evidence
of PW 8 is corroborated by evidence of PW 9 and sister of
the deceased. (Paras - 9&10) [96-E-H; 97-A-B]
1.4 The other witness who had seen the accused
E and the deceased was PW 6. He was also a resident of
the same village. He has stated that on the fateful day at
11 to 11.15 a.m. when he was offering water to his cattle
from the cistern of one Sangale, he saw the accused and
the deceased proceeding towards the hill. The evidence
F of this witness is reliable. It is significant to note that he
has stated that he was offering water to his cattle from
the cistern of Sangale. PW 8 has also stated that she and
the deceased were going towards the borewell of Sangale
and that accused met them when they were proceeding
G towards their house after collecting water. Therefore, the
claim of PW 6 that he had seen the accused and the
deceased cannot be disbelieved. The statement of this
witness is recorded immediately after the incident. (Para
""'.' 11) !97-F-H]
H 2.1 Before analyzing factual aspects it may be stated
SHIVAJI @ DADYA SHANKAR ALHAT v. THE
-, 85
.,,,._,- STATE OF MAHARASHTRA

that for a crime to be proved it is not necessary that the A
crime must be seen to have been committed and must, in
all circumstances be proved by direct ocular evidence by
examining before the Court those persons who had seen
its comm.ission. The offence can be proved by
circumstantial evidence also. The principal fact or factum B
'" probandum may be proved indirectly by means of certain
inferences drawn from factum probans, that is, the
evidentiary facts. To put it differently circumstantial
evidence is not direct to the point in issue but consists of
evidence of various other facts which are so closely c
associated with the fact in issue that taken together they
form a chain of circumstances from which the existence .-,.
of the principal fact can be legally inferred or presumed.
(Para - 15) [98•H; 99-A-C]
State of UP v. Satish (2005) 3 SCC 114; Ramreddy D
Rajeshkhanna Reddy v. State of A.P (2006) 10 SCC 172;
Jaswant Gir v. State of Punjab (2005) 12 SCC 438; Kusuma
Ankama Rao v. State of A.P (2008) 9 SCALE 652 and Manivel
& Ors. v. State of Tamil Nadu (2008) 5 Supreme 577 - referred
to. E
2.2 It has been consistently laid down by this Court
that where a case rests -squarely on circumstantial
evidence, the inference of guilt can be justified only when
. all the incriminating facts and circumstances are found
to be incompatible with the innocence of the acc':!sed or F
the guilt of any other person. (Para - 16) [99-D]
Hukam Singh v. State of Rajasthan AIR (1977) SC 1063;
Eradu and Ors. V. State of Hyderabad AIR (1956) SC 316;
Earabhadrappa v. State of Karnataka AIR. (1983) SC 446;
G
State of UP v. Sukhbasi and Ors. AIR (1985) SC 1224;
Ba/winder Singh v. State of Punjab AIR (1987) SC 350; Ashok
Kumar Chatterjee v. State of M.P AIR (1989) SC 1890 - relied
on.
2.3 The circumstances from which an inference as H
86 SUPREME COURT REPORTS [2008) 13 S.C.R.

A to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be
inferred from those circumstances. (Para - 16) [99-E-F]
Bhagat Ram v. State of Punjab AIR (1954) SC 621 -
8 relied on.
2.4 There is no doubt that conviction can be based
solely on circumstantial evidence but it should be tested
by the touch-stone of law relating to circumstantial
c evidence laid down by this Court as far back as in 1952.
(Para - 21) [101-D & E]
Hanumant Govind Nargundkar and Anr. V. State of
Madhya Pradesh AIR (1952) SC 343 - relied on.
D 2.5 The conditions precedent in the words of this
Court, before conviction could be based on circumstantial
evidence, must be fully established. They are that the
ci ..cumstances from which the conclusion of guilt is to be
drawn should be fully esta~''.lshed. The circumstances
concerned must or should and not may be established;
E that the facts so established should be consistent only
w'th the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty; that the
circumstances should be of a conclusive nature and
F tendency; that they s;1ould exclude every possible
hypothesis except the one to be proved; and that there
must be a chain of evidence so compete as not to leave
any reasonab:e ground for the conclusion consistent with
the innocence of the accused and must show that in all
G human probability the act must have been done by the
accused. (Para - 22) [1C1 -F; 102-A]
C. Chenga Reddy and Ors v. State of A.P (1996) 10
SCC 193; Padala Veera Reddy v. State of AP and Ors. AIR
H (1990) SC 79; State of UP v. A.shok Kumar Srivastava, (1992)
SHIVAJI @ DADYA SHANKAR ALHAT v. THE 87
STATE OF MAHARASHTRA
Crl. LJ 1104; Sha rad Birdhichand Sa rd a v. State of A
Maharashtra, AIR (1984) SC 1622; Joseph and Paulo v State
of Kera/a (2000) 5 SCC 197 and Oamodar v. State of
Karnataka (2000) SCC (Crl) 90 - referred to.

"Circumstantial Evidence" by Sir Alfred Will - referred to.
8
2.6 The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons and
property of the people is an essential function of the State. ,_
It could be achieved through instrumentality of criminal
law. Undoubtedly, there is a cross cultural conflict where c
living law must find answer to the new challenges and
the courts are required to mould the sentencing system
to meet the challenges. The contagion of lawlessness
would undermine social order and lay it in ruins. Prote_ction
of society and stamping out criminal proclivity must be
0
. the object of law which must be achieved by imposing
appropriate sentence .. Therefore, law as a corner-stone
of the edifice of "order" should meet the challenges
confronting the society. (Para - 26) (104-E,F & G]
2.7 In operating the sentencing system, law should E
adopt the corrective machinery or the deterrence based
on factual matrix. By deft modulation sentencing process
be stern where it should be, and tempered with mercy
where it warrants to be. The facts and given circumstances
in each case, the nature of the crime, the manner in which F
it was planned and committed, the motive for commission""
of the crime, the conduct of the accused, the nat1:1re of
weapons used and all other attending circumstances are
relevant facts which would enter into the area of
consideration. (Para - 26) (104-E-H]
G
Mahesh v State of M.P (1987) 2 SCR710 - relied on.
)- "Law in Changing Society" by Friedman - referred to.
2.8 Undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine H
88 SUPREME COURT REPORTS (2008] 13 S.C.R.

'~
A the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is,
therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and
the manner in which it was executed or committed. (Para
B - 27) [105-E&F]
Sevaka Perumal etc. v. State of Tamil Naidu AIR (1991)
SC 1463 - relied on.
2.9 The criminal law adheres in general to the
c principle of proportionality in prescribing liability
according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion
to the Judge in arriving at a sentence in each case,
presumably to permit sentences that reflect more subtle
considerations of culpability that are raised by the special
D
facts of each case. (Para - 28) [105-G&H; 106-A]
2.10 Proportion between crime and punishment is a
goal respected in principle, and inspite of errant notions,
it remains a strong influence in the determination of
E sentences. (Para - 29) [106-C]
2.11 After giving due consideration to the facts and
--
circumstances of eacfl case, for deciding just and
appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in
F which a crime has been committed are to be delicately
balanced on the basis of really relevant circumstances in a
dispassionate manner by the Court. (Para - 30) [106-F&G]
Dennis Councle MCG Dautha v. State of Cal/ifornia: 402
US 183: 28 L.D. 2d 711 - referred to.
G
2.12 The social impact of the crime, which have great
impact on social order, and public interest, cannot be lost
sight of and per se require exemplary treatment. Any ~
liberal attitude by imposing meager sentences or taking
H too sympathetic view merely on account of lapse of time
SHIVAJI @ DADYA SHAN KAR ALHAT v. THE 89
STATE OF MAHARASHTRA

in respect of such offences will be result-wise counter A
productive in the long run and against societal interest
which needs to be cared for and strengthened by string
of deterrence inbuilt in the sentencing system. (Para -
31) [107-E,F&G]
Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 8
sec 353 - referred to.
3.1 Taking an overall global view of all the
circumstances in the light of the propositions laid down
by this Court and taking into account the answers to the c
questions posed by way of the test for the rarest of rare
cases, the circumstances of the case are such that death
sentence is warranted, the court would proceed to do so.
(Para - 38) [112-C&D]
Ohananjoy Chatterjee v. State of WB. (1994) 2 SCC D
220; Ravji v. State ofRajasthan, (1996) 2 SCC 175; State of
M.P. v. Munna Choubey (2005) 2 SCC 712; Bachan Singh v.
State of Punjab (1980) 2 SCC 684; Machhi Singh v. State of
Punjab (1983) 3 SCC 470 and Devender Pal Singh v. State
of NCT of Delhi (2002) 5 SCC 234 - referred to. E
3.2 The plea that in a ca.se of circumstantial evidence
death shoulcf, 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 F
do with the question of sentence as has been observed
by this Court in various decisions 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 G
case rests on circumstantial evidence has no role to play.
In fact in most of the cases where death sentence are
awarded for rape and murder and the like, there is
practically no scope for having an eye witness. They are
not committed in the public view. But very nature of things H
90 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 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
B irrelevant aspect. The plea of the Amicus Curiae that the
conviction is based on circumstantial evidence and,
therefore, the death sentence should not be awarded is
clearly unsustainable. (Para - 40) [112-E,F,G & H; 113-A]
3.3 The case at hand falls in the rarest of rare category.
C The circumstances highlighted above, establish the
depraved acts of the accused, and they call for only one
sentence, that is death sentence. Looked at from any angle
the judgment of the High Court, confirming the conviction
and sentence imposed by the trial Court, do not warrant
D any interference. (Paras - 42 & 43) [113-B&C]
Case Law Reference
(2005) 3 sec 114 Referred to Para-12
(2006) 1o sec 112 Referred to Para -13
E
(2005) 12 sec 438 Referred to Para - 14
(2008) 9 SCALE 652 Referred to Para - 14
(2008) 5 Supreme 577 Referred to Para -14
AIR (1977) SC 1063 Relied on Para - 16
F
AIR (1956) SC 316 Relied on Para - 16
AIR (1983) SC 446 Relied on Para-16
AIR (1985) SC 1224 Relied on Para - 16

G AIR (1987) SC 350 Relied on Para - 16
AIR (1989) SC 1890 Relied on Para - 16
AIR (1954) SC 621 Relied on Para-16
AIR (1952) SC 343 Relied en Para - 21
H (1996) 10 sec 193 Referred to Para-17
SHIVAJI @ DADYA SHANKAR ALHAT v. THE 91
t· f STATE OF MAHARASHTRA

AIR (1990) SC 79 Referred to Para -18 A

(1992) Crl. LJ 1104 Referred to Para -19

AIR (1984) SC 1622 Referred to Para - 22

(2000) 5 sec 191 Referred to Para - 23
=l
I
.. (2000) sec (Crl.) 90 Referred to Para - 24 B

(1987) 2 SCR 710 Relied on Para - 25

(1991) SC 1463 Relied on Para - 26

402 US 183: 28 L.D. 2d 711 Referred to Para - 29
c
(1994) 4 sec 353 Referred to Para - 30
..I (1994) 2 sec 220 Referred to Para - 32
(1996) 2 sec 115 Referred to Para - 33
(2005) 2 sec 112 Referred to Para - 34
D
t (1980) 2 sec 684 Referred to Para - 35
(1983) 3 sec 410 Referred to Para - 36
(2002) s sec 234 Referred to Para - 37

·- CRIMINALAPPELLATE JURISDICTION : Criminal Appeal E
No. 1409 of 2008
From the final Judgment and Order dated 8.7.2004 of the
High Court of Judicature at Bombay in Confirmation Case NO.
1/2003 with Crl. Appeal No. 574/2004
~
·-1 F
Ranjan Mukherjee for the Appellant.
Ravindra Keshavran Adsure for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted. G

A large number of cases in recent times coming before
this Court involving rape and murder of young girls, is a matter
of concern. In the instant case victim was about nine years cf
age who was the victim of sexual assault and animal lust of the
H
92 SUPREME COURT REPORTS [2008] 13 S.C.R.
.., ...
A accused-appellant; she was not only raped but was murdered
by the accused appellant
2. Learned Second Additional Judge, Pune in Sessions
Case No.209 of 2002 tried the appellant for offences punishable
under Sections 302 and Section 376 (2)(f) of the Indian Penal
B Code, 1860 ( in short the 'IPC'). By judgment and order dated
2?1h June, 2004, the trial court found the appellant guilty for the
aforesaid offences and he was sentenced to death for the
offence of murder and in respect of the other offence sentence
to suffer rigorous imprisonment for ten years and to pay fine
c with default stipulation. Appellant questioned the judgment in
Criminal Appeal No.574 of2004 before the Bombay High Court
which heard the same alongwith Confirmation Case No.1 of
2003 which was referred to the High Court as required und~r
Section 366 of the Code of Criminal Procedure, 1973 (in short
D the 'Code'), for confirmation of death sentence. The appeals
were heard together, the reference was accepted but the appeal
filed by the accused was dismissed.
3. Prosecution version as unfolded during trial is as follows:

E Shivaji-appellant (hereinafter referred to as the 'accused')
is an educated person i.e. B.A. BEd. and was serving as teacher
at Pune in the year 1986. He was staying with his mother and
sister near the house of Hemlata (hereinafter referred to as the
'deceased'), a tiny girl who had not seen ten summers in life.
F The accused is a marrie.I man and has three children. 1-~is wife ,... .
and children were not residing with him.
The accused was known to the deceased and her family.
The deceased and her family used to sometime give him bread.
The deceased was studying in 5:h standard. She has two sisters,
G namely, Bhagyashree and Jayshree (PW 8). Her mother
Sushilabai (PW 2) was working as a maid. All of them were
staying with their grandmother Yashodabai (PVI/ 7). The father
of the deceased was not staying with them on account of strained
relationship between him and Sushila, the mother of deceased.
H
SHIVAJI @ DADYA SHAN KAR ALHAT v. THE 93
~ :>
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

The incident in question occurred on 14th January, 2002. A
On that day there was festival of Makarsankranti. Sushilabai
had gone to the house of one Tirandaz for work. The deceased
and her two sisters and their grandmother Yashodabai were
present in the house. At about 11.30 a.m., the deceased and
her sister Jayshree had gone to the borewell of one Sangale to B
fetch water. The accused was sitting on the slab, where
construction work of one Mr. Gaikar was going on. The accused
told the deceased that he would give her fuel wood from the hill.
Thereafter they came to deceased's house. The deceased kept
the pitcher in the house and she went alongwith the accused c
towards the hill called Manmodya Dongar. Thereafter the
deceased did not return home.

Sushilabai came home at about 4.30 P.M. She was told
that her daughter Hemlata had gone with the accused and had
not returned. They started searching for the deceased but could D
not find her. On the same day i.e. on 14th January,
2002,Yashodabai, the grandmother of the deceased gave a
missing complaint to the police in which she stated that the
deceased had left the house with the accused and had not
come back. Search was going on to find out the deceased. It E
appears that Sushilabai got to know from one Sakinabai that
dead body of Hemlata was lying on Manmodya hill. She also
gave information to the police on 15th January, 2002 regarding
missing of Hemlata which is at Exhibit 12. In this complaint she
also stated that the deceased had left the house alongwith the F
accused.

After seeing the dead body of Hemlata at Junnar Hospital,
Sushilabai reported the matter to the police. Her complaint
came to be recorded in which she stated that her daughter had
left with the accused on 14.1.2002. She specifically stated that G
she was convinced that, it is the accused who had raped her
>-· daughter and assaulted her on her abdomen with a sharp edged
weapon, strangulated her with a rope and murdered her. On the
basis of this FIR investigation started.
H
94 SUPREME COURT REPORTS [2008] 13 S.C.R.

A The accused was not traceable. He could be arrested
only on 15th January, 2002. He was found hiding in the sugarcane
crop of one Gaikwad. After completion of the investigation the
accused came to be charged as aforesaid.
Since the accused abjured guilt trial was held. Seventeen
8 witnesses 'Were examined to further the prosecution version.

Prosecution examined Sushilabai (PW 2), the mother of
the deceased and Yashodhabai (PW 7), grandmother of the
deceased. Jayshree (PW 8) the sister of the deceased,
c Shantabai (PW 9) and Khanwar Hussein (PW 6) were examined
to establish the prosecution case that the accused and the
deceased were last seen together on 14th January, 2002 at
about 11.30 a.m. going towards Manmodya Hill. Suresh B.
Visave (PW 3) is a Pancha to the Panchnama of recovery of
D penknife at the instance of the accused. Dr. Suresh R. Shahane
(PW 15) had examined the accused. Dr. Suresh B. Patankar
(PW 17) had examined the accused to find out whether he was
capable of sexual intercourse. The prosecution also examined
Dr. Nana N. Sonawane (PW 5), who proved the postmortem
notes. Investigation was conducted by PSI Ramesh R. Bllosale
E (PW 14) and PSI Dilip D. Jagdale (PW 16).

The accused pleaded innocence and false impl:cation.
His case was that in fact at the relevant point of time he was not
present in the village and has gone to his daughter's house,
F then to his sister's house.
Learned trial court found the evidence cogent and found
the accused guilty and imposed the sentence. The appeal before
the High Court was dismissed and the reference made under
Section 366 IPC was confirmed.
G
4. In support of the appeal learned counsel for the appellant
submitted that the case at hand is based on circumstantial
evidence and the circumstances do not warrant conclusion of
guilt of the accused. Since the conviction was based on
circumstantial evidence. no death sentence should have been
H
SHIVAJI @ DADYA SHANKAR ALHAT v. THE 95
• > \. STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

awarded and in any event this is not a case where death A
sentence should have been imposed.
5. Learned counsel for the respondent-State on the other
hand submitted that trial court and the High Court have analysed
~
the evidence in great detail to show the horrendous manner in
which a tiny girl was gone to death after ravishing her. The B
circumstances which have highlighted by the prosecution relate
to the fact that the accused was last seen in the-company of the
deceased and injury on the abdomen and the rope by which the
deceased was strangulated were recovered at the instance of
the accused and the fact that the accused had absconded and c
":1 was arrested from a place where he was hiding and the
j presence of blood on his cloth is a relevant factor. The plea of
~ alibi set up has not been established.
I
6. From the evidence of Sushila (PW 1), Yashodabai (PW
0
-.; 7) and Jayashree (PW 8) it appears that they are a poor family.
Sushila (PW I) is lame and at the relevant time was deserted
by her husband. Sushila and her daughters used to stay with
her mother Yashodabai who was about 69 Years old. Sushila
used to work as a maid and used to be away from the house
for long hours in connection with work leaving in the house her E
mother and three daughters. The daughters used to do
household work like filling water and used to go to school. The
deceased was thus a helpless poor girl of tender age. She had
no protection of the father. She was, therefore, a vulnerable girl.·
__,. F
7. Yashodabai (PW 7) has stated that the accused was
residing near their house. He was not doing any work. His wife
and children were not residing with him. Sushila (PW 1) has
stated that since the accused used to stay in hilly area the
deceased used to sometimes give him bread. Khanwar
G
Husssein (PW 6) and Shantabai (PW 9) stay in village Barav
Junnar where the deceased was staying. They have also
..• confirmed that the accused used to stay in the same village.
+-
Therefore, that the accused was staying near the house of the
deceased and was known to her has been established.
~;
96 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 8. Sushila (PW1 ), the mother of the deceased has stated
that on 14th January, 2002, she had gone to the house of one
Tirandaz for work. At that time her three daughters and mother
were present in the house. She left the house at about 11-15
a.m. and came back at about 4.30 p.m. When she came back,
B her mother told her that the deceased had gone to bring fuel
wood along with the accused. Since the deceased did not come
back they stq,rted searching for her. Yashodabai, the
grandmother of the deceased gave a missing complaint to the
Junnar police on 14.1.2002. On 15th January, 2002 at about
c 8.30 to 9.00 a.m. one Sakinabai who was residing near their
house, came and informed that the dead body of the deceased
was found on the hill. Sushila then gave a complaint to the
police on 15.1.2002 that her daughter had left with the accused
on 14.1.2002 at about 11 O' clock in the morning; that she had
not returned home; that they had searched for her; that her
0
neighbour Sakina Shaikh had told her that the dead body of her
daughter was lying on the hill and that out of fear she had not
gone to see the dead body.
9. Jayashree (PW 8) is the minor daughter of Sushila
E (PW1 ). Her evidence in our opinion is crucial to the prosecution
case and it also inspires confidence. She has stated that on
14th January, 2002, she had gone with her sister deceased
Hemlata, towards the borewell of one Sangale in order to fetch
water, at about 11.30 a.m. The construction work of one Gaikar
F was going on and the accused was sitting on the slab there.
The accused met them and told the deceased that he would
give her fuel wood from the hill. Thereafter they came home.
The deceased kept her pitcher in the house. She took a towel
ancl a sickle and went alongwith the accused towards Manmodya
G hill. She has further stated that as her mother was not present
:;he tc.ld her grandmother that the deceased had gone along
with the accused to bring fuel wood. 1Nhen her mother came
back at 4.30 p.m. she told r.er mother that the deceased had +
gone along with the ;:iccused. Since the deceased did not come
back they started searching for her. The body of the deceased
H
SHIVAJI @ DADYA SHANKAR ALHAT v. THE 97
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

was found on the next day on the hill. This witness has stood the A
test of cross examination very well. She has stuck to her version
in the examination-in-chief. There is not a single discrepancy in
her evidence. The trial Court and the High Court rightly placed
reliance on the evidence of this witness.
10. The evidence of Jayshree (PW 8) is corroborated by 8
evidence of Shantabai (PW 9). According to her on the day of
the incident she was collecting cow dung near Manmodya hill
at about 11 a.m. She saw the accused and the deceased going
towards the hill. In the cross examination an attempt was made
to suggest to her that her financial position was sound and, C
therefore, there was no reason for her to collect cow dung on
Makarsankrati day. There is no substance in this submission.
Shantabai (PW 9) has stated that she was being maintained
out of the amount of pension which her husband was getting.
This does not mean that Shantabai came from an affluent family. D
There is nothing abnormal in finding a village woman collecting
cow dung in the morning. She knew both, the accused and the
deceased. Her evidence to the effect that she saw the accused
and the deceased going towards Manmodya hill on 14th January,
2002 at about 11 O'clock in the morning is credible. E
11. The third witness who had seen the accused and the
deceased is Khanwar Hussain (PW 6). He is also a residentof
Barav. He has stated that on 14th January, 2002 at 11 to 11.15
a.m. he was offering water to his cattle from the cistern of one
Sangale. At that time he saw the accused and the deceased F
proceeding towards the hill. The evidence of this witness.is
reliable. It is significant to note that he has stated that he was
offering water to his cattle from the cistern of Sangale. Jayshree
(PW 8) has also stated that she and the deceased were going
towards the borewell of Sangale and that accused met them . G
t
when they were proceeding towards their house after collecting ··
water. Therefore, the claim of Khanwar Hussein that he had
seen the accused and the deceased cannot be:tlisbelieved.
The statement of this witness is recorded on 15t~ January, 2002
i.e. immediately after the incident. H
98 SUPREME COURT REPORTS [2008] 13 S.C.R
~ '
A 12. So far as the last seen aspect is concerned it is
necessary to take note of two decisions of this court. In State
of UP v. Satish [2005 (3) sec 114] it was noted as follows:
"22. The last seen theory comes into play where the time-
gap between the point of time when the accused and the
B deceased were seen last alive and when the deceased is
found dead is so small that po$sibility of any person other
than the accused being the author of the crime becomes
impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused
c when there is a long gap and possibility of other persons
coming in between exists. In the absence of any other
positive evidence to conclude that the accused and the
deceased were last seen together, it would be hazardous
to come to a conclusion of guilt in those cases. In this
D case there is positive evidence that the deceased and the
accused were seen together by witnesses PWs. 3 and 5,
in addition to the evidence of PW-2."
13. In Ramreddy Rajeshkhanna Reddy v. State of A.P
[2006 (10) sec 172] it was noted as follows:
E
"27. The last-seen theory, furthermore, comes into play
where the time gap between the point of time when the
accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
F person other than the accused being the author of the
crime becomes impossible. Even in such a case the courts
should look for some corroboration".
(See also Bodh Raj v. State of J&K (2002(8) SCC 45).)"
14. A similar view was also taken in Jaswanf Gir v. State
G
of Punjab [2005(12) SCC 438], Kusuma Ankama Rao v State
of A.P. (2008(9) SCALE 652) and in Manivel & Ors. v. State of
__,,_
Tamil Nadu ( 2008(5) Supreme 577).
15. Before analyzing f...1ctual aspects it may be stated 1hat
H for a crime to be proved it is not necessary that the crime must
l- )-
SHIVAJI @ DADYASHANKAR ALHAT v_ THE 99
STATE OF MAHARASHTRA [DR ARIJIT PASAYAT, J.]

be seen to have been committed and must, in all circumstances A
be proved by direct ocular evidence by examining before the
Court those persons who had seen its commission. The offence
can be proved by circumstantial evidence also. The principal
fact or factum probandum may be proved indirectly by means
of certain inferences drawn from factum probans, that is, the B
evidentiary facts. To put it differently circumstantial evidence is
not direct to the point in issue but consists of evidence of various
other facts which are so closely associated with the fact in
issue that taken together they form a chain of circumstances
from which the existence of the principal fact can be legally c
inferred or presumed.
16. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating
.., facts and circumstances are found to be incompatible with the D
innocence of the accused or the guilt of any other person. (See
Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu
and Ors. v. State of Hyderabad (Al R 1956 SC 316);
Earabhadrappa v. State of Karnataka_(AIR 1983 SC 446);
-· State of UP v. Sukhbasi and Ors. (AIR 1985 SC 1224); E
Ba/winder Singh v. State of Punjab (AIR 1987 SC 350); Ashok
Kumar Chatterjee v. State of M.P (AIR 1989 SC 1890). The
circumstances from which an inference as to the guilt of the
accused is drawn have to be proved beyond reasonable doubt
---" and have to be shown to be closely connected with the principal F
fact sought to be inferred from those circumstances. In Bhagat
Ram v. State of Punjab (AIR 1954 SC 621), it was laid down
that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must
be such as to negative the innocence of the accused and bring
G
the offences home beyond any reasonable-doubt.
.)._
17. We may also make a reference to a decision of this ·
Court in C. Cheng a Reddy and Ors. v. State of A. P (1996) 10
·SCC 193, wherein it has been :ibserveci thus: -
H
100 SUPREME COURT REPORTS [2008] 13 S.C.R.
~ '

A "In a case based on circumstantia! evidence, the settled
law is that the circumstances from which the conclusion of
guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all
the circumstances should be complete and there should
B be no gap left in the chain of evidence. Further the proved
circumstances must be consistent only with the hypothesis
of the guilt of the accused and totally inconsistent with his
innocence .... ".

18. In Padala Veera Reddy v. State of A.P and Ors. (AIR
c 1990 SC 79), it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the following
tests:
"(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
D
established;

(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a
E chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain
F conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence."
G 19. In State of UP v. Ashok Kumar Srivastava, (1992
Crl:LJ 1104), it was pointed out that great care must be taken
in evaluating circumstantial evidence and if the evidence relied -"·
on is reasonably capable of two inferences, the one in favour
of the accused must be accepted. It was also pointed out that
H the circumstances relied upon must be found to have been fully
SHIVAJI @ DADYA SHANKAR ALHAT v. THE 101
~
).- STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J]

established· and the cumulative effect of all the facts so A
established must be consistent only with the hypothesis of guilt.
20. Sir Alfred Wills in his admirable book "Wills'
Circumstantial Evidence" (Chapter VI) lays down the following
rules specially to be observed in the case of circumstantial
~· evidence: (1} the facts alleged as the basis of any legal inference B
must be clearly proved and beyond reasonable doubt connected
with the factum probandum; (2) the burden of proof is always on
the party who asserts the existence of any fact, which infers
legal accountability; (3) in all cases, whether of direct or
circumstantial evidence the best evidence must be adduced c
which the nature of the case admits; (4) in order to justify the
inference of guilt, the inculpatory facts must be incompatible
with the innocence of the accused and incapable of explanation,
upon any other reasonable hypothesis than that of his guilt, (5)
if there be any reasonable doubt of the guilt of the accused, he D
..,
is entitled as of right to be acquitted" .
21. There is no doubt that conviction can be based solely
on circumstantial evidence but it should be tested by the touch-
stone of law relating to circumstantial evidence laid down by
this Court as far back as in 1952. E

22. In Hanumant Govind Nargundkar and Anr. V State of
Madhya Pradesh, (AIR 1952 SC.343),wherein it was observed
:\. thus:
_..., "It is well to remember that in cases where the evidence F
is of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should be 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 <5'
be of a conclusive nature and tendency and they should
be such as to exclude every hypothesis but the one
j._
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 H
102 SUPREME COURT REPORTS [2008] 13 S.C.R.

A innocence of the accused and it must be such as to show
that within all human probability the act must have been
done by the accused."
23. A reference may be made to a later decision in Sharad
Birdhichand Sa rd a v. State of Maharashtra, (Al R 1984 SC
8 1622). Therein, while dealing with circumstantial evidence, it
has been held that onus was on the prosecution to prove that
the chain is complete and the infirmity of lacuna in prosecution
cannot be cured by false defence or plea. The conditions
precedent in the words of this Court, before conviction could be
C based on circumstantial evidence, must be fully established.
They are:
(1) the circumstances from which the conclusion of guilt
is tb be drawn should be fully established. The
circumstances concerned must or should and not
D
may be established; y
,.._ -·-.._

(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
E hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis except
F the one to be proved; and
(5) . there must be a chain of evidence so compete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
· must show that in all human probability the act must
G have been done by the accused.
24. In Joseph and Paulo v. State of Kera/a [2000(5) SCC
·197] it was, inter alia, held as follows:
"The formidable incriminating circumstances against the
H appellant, as far as we could see, are that the deceased
SHIVAJI @ DADYA SHAf';lKAR ALHAT v. THE 103
STATE OF MAHARASHTRA [DR ARIJIT PASAYAT, J.]

was taken away from the convent by the appellant under A "-
a false pretext and she was last seen alive only in his
company and that it is on the information furnished by the
appellant in the course of investigation that jewels of the
deceased which were sold to PW 11 by the appellant,
were seized." B
"The incriminating circumstances enumerated above
unmistakably and inevitably lead to the guilt of the appellant
and nothing has been highlighted or brought on record to
make the facts proved or the circumstances established
to be in any manner in consonance with the innocence at · C
any rate of the appellant. During the time of questioning
under Section 313 Cr.P.C. the appellant instead of making
at least an attempt _to explain or clarity the incriminating
circumstances inculpating him, and connecting him with
the crime by his adamant attitl!de of total denial of D
. everything when those circljmstances were brought to his
notice by the Court not only lost the opportunity but stood
self-condemned. Such incriminating links offacts could, if
at all, have been only explained by the appellant. and by
n"obody else, they being personally and exclusively within E·
his knowledge. Of late, courts have, from the falsity of the
defence plea and false answers given to court, when
questioned, found the missing links to be supplied by such
answers for completing the chain of incrimin,ating
circumstances necessarytC>Cnnnectthe person concerned F ·
with the crime committed.(See: State of Maharashtra v.
Suresh). That missing link to connect the accused
appellant, we find ir. this case provided by the blunt and.
outright denial of every one and all that incriminating
circumstances pointed oufwhiqh,'in our view, with sufficient G
and reasonable certainty on the facts proved, connect the
accused with the death and the cause of the. death ·of·
Gracy and for robbing her of her jewellery worn by her -:-:'
MOs 1 to 3', um:ler Section 392. The decease.d· meekly
went with the,accused from the Convent on account of the
H
I
104 SUPREME COURT REPORTS [2008] 13 S.C.R. '
~

A misrepresentation made that her mother was seriously ill
and hospitalised apparently reposing faith and confidence
in him in view of his close relationship - being the
husband of her own sister, but the appellant seems to
have not only betrayed the confidence reposed in him but
B also took advantage of the loneliness of the hapless
woman. The quantum of punishment imposed is
commensurate with the gravity of the charges held proved
and calls for no interference in our hands, despite the fact
that we are not agreeing with the High Court in respect of
c the findings relating to the charge under Section 376.
25. In Damodar v. State of Karnataka [2000 SCC (Crl)
90] it was, inter alia, observed as follows:
"From the evidence of PWs. 1,6,7 & 8 the prosection has
satisfactorily established that the appellant was last seen
D
with the deceased on 30.4.91. The appellant either in his y

Section 313 Cr.P.C. statement or by any other evidence
has not established when and where he and the deceased
parted company after being last seen."

E 26. The law regulates social interests, arbitrates conflicting
claims and demands. Security of persons and property of the
people is an essential function of the State. It could be achieved
through instrumentality of criminal law. Undoubtedly, there is a
cross cultural conflict where living law must find answer to the
F new challenges and the courts are required to mould the
sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must
be the object of law which must be achieved by imposing
appropriate sentence. Therefore, law as a corner-stone of the
G
edifice of "order" should meet the challenges confronting the
society. F;:edman in his "Law in Changing Society" stated that,
"State of criminal law continues to be - as it should be - a
decisive reflection of social consciousnes:> of socir:ity".
Ther.9fore, in operating the sentencing system, iaw should adopt
H
SHIVAJI @ DADYA SHAN KAR AL HAT v. THE 105
., .. ~ · STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

the corrective machinery or the deterrence based on factual A
matrix. By deft modulation sentencing process be stern where
it should be, and tempered with mercy where it warrants to be.
The facts and given circumstances in each case, the nature cf
the crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the B
accused, the nature of weapons used and all other attending
circumstances are relevant facts which would enter into the
area of consideration. For instance a murder committed due to
deep-seated mutual and personal rivalry may not call for penalty
of death. But an organised crime or mass murders of innocent c
people would call for imposition of death sentence as
deterrence. In Mahesh v. State of M.P (1987) 2 SCR 710), this
Court while refusing to reduce the death sentence observed
thus:
"It will be a mockery of justice to permit the accused to D
escape the extreme penalty of law when faced with such
evidence and such cruel acts. To give the lesser
punishment for the accused would be to render the justicing
system of the country suspect. The common man will lose
faith in courts. In such cases, he understands and E
appreciates the lariguage of deterrence more than the
reformative jargon."
27. Therefore, undue sympathy to impose inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and society F
could not long endure under such serious threats. It is, therefore,
the duty of every court to award proper sentence having regard
• to the nature of the offence and the manner in which it was
executed or committed etc. This position was illuminatingly
stated by this Court in Sevaka Perumal etc. v. State of Tamil G
Naidu (AIR 1991 SC 1463).
28.The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the culpability
of each kind of criminal conduct. It ordinarily allows some H
106 SUPREME COURT REPORTS [2008] 13 S.C.R.

A significant discretion to the Judge in arriving at a sentence in
each case, presumably to permit sentences that reflect more
subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment
ought always to fit the crime; yet in practice sentences are
B determined largely by other considerations. Sometimes it is
the correctional needs of the perpetrator that are offered to
justify a sentence. Sometimes the desirability of keeping him
out of circulation, and sometimes even the tragic results of his
crime. Inevitably these considerations cause a departure from
C just desert as the basis of punishment and create cases of
· apparent injustice that are serious and widespread.
29. Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it remains
a strong influence in the determination of sentences. The practice
D of punishing all serious crimes with-'equal severity is now
unknown in civilized societies, but such a radical departure
from the principle of proportionality has disappeared from the
law only in recent times. Even now for a single grave infraction
drastic sentences are imposed. Anything less than a penalty of
E greatest severity for any serious crime is thought then to be a
measure of toleration that is unwarranted and unwise. But in
fact, quite apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime, uniformly
disproportionate punishment has some very undesirable
F practical consequences.
30. After giving due consideration to the facts and
circumstances of each case, for deciding just and appropriate
sentence to be awarded for an offence, the aggravating ,and
mitigating factors and circumstances in which a crime has b!'len
G committed are to be delicately balanced on the basis of really
relevant circumstances in a dispassionate manner by the Court.
Such act of balancing is indeed a difficult task. It has been very
aptly indicated in Dennis Councle MCG Dautha v. State of
Callifornia: 402 US 183: 28 L.D. 2d '111 that no formula of a
H foolproof nature is possible that would provide a reasonable
SHIVAJI @ DADYA SHAN KAR ALHAT v. THE 107
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

criterion in determining a just and appropriate punishment in A
the infinite variety of circumstances that may affect the gravity
of the crime. In the absence of any foolproof formula which may
provide any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of gravity
of crime, the discretionary judgment in the facts of each case, B
is the only way in which such judgment may be equitably
distinguished.
31. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994
(4) SCC 353), it has been held by this Court that in the matter
of death sentence, the Courts are required to answer new C
challenges and mould the sentencing system to meet these
challenges. The object should be to protect the society and to
deter the criminal in achieving the avowed object to law by
imposing appropriate sentence. It is expected that the Courts
would operate the sentencing system so as to impose such D
sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be. Even
though the principles were indicated in the background of death
. sentence and life sentence, the logic applies to all cases where
appropriate sentence is the issue. E
32. Imposition of sentence without considering its effect
on the social order in many cases may be in reality a futile
exercise. The social impact of the crime, e.g. where it relates
to offences against women, dacoity,' kidnapping,
misappropriation of public money, treason and other offences F
involving moral turpitude or moral delinquencywhich have great
impact on social order, and public interest, cannot be lost sight
of and per se require exemplary treatment. Any liberal attitude
e _by imposing meager sentences or taking too sympathetic view
. merely on account of lapse of time in respect of such offences G
will be result-wise counter productive in the long run and against
societal interest which needs to be cared for and strengthened
by string of deterrence inbuilt in the sentencing system.
33. In Dhananjoy Chatterjee v. State of WB. (1994 (2) H
108 SUPREME COURT REPORTS (2008] 13 S.C.R.
...
A SCC 220), this Court has observed that shockingly large number
of criminals go unpunished thereby increasingly, encouraging
the criminals and in the ultimate making justice suffer by
weakening the system's creditability. The imposition of
appropriate punishment is the manner in which the Court
s responds to the society's cry for justice a_gainst the criminal.
Justice demands that Courts should impose punishment
befitting the crime so that the Courts reflect public abhorrence
of the crime. The Court must not only keep in view the rights of
the criminal but also the rights of the victim of the crime and the
c society at large while considering the imposition of appropriate
punishment.
34. Similar view has also been expressed in Ravji v. State
of Rajasthan, (1996 (2) SCC 175). It has been held in the said
case that it is the nature and gravity of the crime but not th_e
D criminal, which are germane for consideration of appropriate
punishment in a criminal trial. The Court will be failing in its duty
if appropriate punishment is not awarded for a crime which has
been committed not only against the individual victim but also
against the society to which the criminal and victim belong. The
E punishment to be awarded for a crime must not be irrelevant
but it should conform to and be consistent with the atrocity and
brutality with which the crime has been perpetrated, the enormity
of the crim~ warranting public abhorrence and it should "respond
to the society's cry for justice against the criminal". If for extremely
F heinous crime of murder perpetrated in a very brutal manner
without any provocation, most deterrent punishment is not given,
the case of deterrent punishment will lose its relevance.
35. These aspects have been elaborated in State of MP
v. Munna Choubey (2005 (2) SCC 712).
G
36. In Bachan Singh v. State of Punjab (1980 (2) SCC
684) a Constitution Bench of this Court at para 132 summed up
the position as follows: (SCC p.729)
"132. To sum up, the question whether or not death penalty
H serves any penological purpose is a difficult, complex and
SHIVAJI @ DADYA SHAN KAR ALHAT v. THE 109
J A
STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

intractable issue. It has evoked strong, divergent views. A
For the purpose of testing the constitutionality of the
impugned provision as to death penalty in Section 302,
Penal Code on the ground of reasonableness in the light
of Articles 19 and 21 of the Constitution, it is not necessary
-r for us to express any categorical opinion, one way or the B
other, as to which of these two antithetical views, held by
the Abolitionists and Retentionists, is correct. It is sufficient
to say that the very fact that persons of reason, learning
and light are rationally and deeply divided in their opinion
on this issue, is a ground among others, for rejecting the c
petitioners' argument that retention of death penalty in the
impugned provision, is totally devoid of reason and
purpose. If, notwithstanding the view of the Abolitionists to
the contrary, a very large segment of people, the world
over, including sociologists, legislators, jurists, judges and
'i D
administrators still firmly believe in the worth and necessity
of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India,
contemporary public opinion channelised through the
people's representatives in Parliament, has repeatedly in
the last three decades, rejected all attempts, including the E
one made recently, to abolish or specifically restrict the
area of death"penalty, if death penalty is still a recognised
legal sanction for murder or some types of murder in most
-(
of the civilised countries in the world, if the framers of the
Indian Constitution were fully aware-as we shall presently F
show they were - of the existence of death penalty as
punishment for murder, under the Indian Penal Code, if
the 35th Report and subsequent reports of the Law
Commission suggesting retention of death penalty, and
recommending revision of the Criminal Procedure Code G
and the insertion of the new Sections 235(2) and 354(3)
in that Code providing for pre-sentence hearing and
sentencing procedure on conviction for murder and other
capital offences were before Parliament and presumably
considered by it when in 1972-73 it took up revision of the H
110 SUPREME COURT REPORTS [2008) 13 S.C.R.

A Code of 1898 and replaced it by the Code of Criminal
Procedure, 1973, it is not possible to hold that the provision
of death penalty as an alternative punishment for murder,
in Section 302, Penal Code is unreasonable and not in
the public interest. We would, therefore, conclude that the 't
B impugned provision in Section 302, violates neither the
letter nor the ethos of Article 19 ."

37. Similarly, in Machhi Singh v. State of Punjab [1983
(3) sec 470] in para 38 the position was summed up as follows:
(SCC p. 489)
c
"38. In this background the guidelines indicated in Bachan
Singh's case (surpa) will have to be culled out and applied
to the facts of each individual case where the question of
imposing of death sentence arises. The following
propositions emerge from Bachan Singh's case (supra):
D
(!) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
(i1) Before opting for the death penalty the circumstances
of the 'offender' also require to be taken into
E consideration along with the circumstances of the
'crime'.
(iii) Life imprisonment is the rule and death sentence is
an exception. In other words death sentence must
F be imposed only when life imprisonment appears to
be an altogether inadequate punishment having
cegard to the relevant circumstances of the crime,
and provided, and only provided, the option to impose·
sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature
G
and circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
H the mitigating circumstances have to be accorded
SHIVAJI @ DADYA SHAN KAR ALHAT v. THE 111
~
~· STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

full weightage and a just balance has to be struck j~\

between the aggravating and the mitigating
circumstances before the option is exercised."
38. The position was again reiterated in Devender Pal
Singh v. State of NCT of Delhi [2002 (5)SCC 234 ] : (SCC p.
•-f
271, para 58) B.

·~ "58. From Bachan Singh 's case (supra) and Machhi
Singh's case (supra) the principle culled out is that when
the collective conscience of the community is so shocked,
· that it will expect the holders of the judicial power centre c
to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death
penalty, the same can be awarded. It was observed:
The community may entertain· such sentiment in the
following circumstances: D
(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner
so as to arouse intense and extreme indignation of
the community.
E
(2) When the murder is committed for a motive which
evinces total depravity and meanness; e.g. murder
by hired assassin for money or reward; or cold-
blooded murder for gains of a person vis-a-vis whom
the murderer is in a dominating position or in a F
. -- position of trust; or murder is committed in the course
for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or
minority community, etc. is committed not for personal
reasons but in circumstances which arouse social · G
~

wrath; or in cases of 'bride burning' or 'dowry deaths'
or when murder is committed in order to remarry for
"'-
the sake of extracting dowry once again or to marry
another woman on accounfof infatuation.
H
!
112 SUPRC:ME COURT REPORTS [2008] 13 s c ::;~
+ <

A (4) When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost
all the members of a family or a large number of
persons of a particular caste, community, or locality,
are committed.
B (5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person
vis-a-vis whom the murderer is in a dominating
position, or a public figure generally loved and
respected by the community."
c
39. If upon taking an overall global view of all the
circumstances in the light of the aforesaid propositions and
taking into account the answers to the questions posed by way
of the test for the rarest of rare cases, the circumstances of the
D case are such that death sentence is warranted, the court would
proceed to do so.
40. What is culled out from the decisions noted above is
that while deciding the question as to whether the extreme
penalty of death sentence is to be awarded, a balance sheet of
E aggravating and mitigating circumstances has to be drawn up.
41.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
F 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
G rests on circumstantial evidence has no role to play. In fact in
most of the cases where death sentence are awarded for rape
and murder and the like, there is practically no scope for having
an eye witness. They are not committed in the public view. But
very nature of things in such cases, the available evidence is
H circumstantial evidence. If the said evidence has been found to
SHIVAJI@ DADYA SHANKAR ALHAT v. THE 113
-+-
• STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.]

be credible, cogent and trustworthy for the purpose of recording A
conviction, to treat that evidence as a mitigating circumstance,
would amount to consideration of an irrelevant aspect. The plea·
of learned Amicus Curiae that the conviction is based on
~ circumstantial evidence and, therefore, the death sentence
-1
should not be awarded is clearly unsustainable. B
42. The case at hand falls in the rarest of rare category.
The circumstance~ highlighted above, establish the depraved
acts of the accused, and they call for only one sentence, that is
death sentence.
c
43. Looked at from any angle the judgment of the High
Court, confirming the conviction and sentence imposed by the
I'
trial Court, do not warrant any interference.

44. We record our appreciation for the able assistance
1' rendered by learned amicus curiae in the true spirit of friend D
and officer of the Court.
45. Appeal fails and is dismissed.
S.K.S. Appeal dismissed.