GIVING OF DEATH PENALTY ON CASES BASED

ON
CIRCUMSTANTIAL EVIDENCE
INTRODUCTION
Death penalty has been a mode of punishment since time immemorial. The arguments for and
against have not changed much over the years. Crime as well as the mode of punishment
correlate to the culture and form of civilization from which they emerge. With the march of
civilization, the modes of death punishment have witnessed significant humanized changes.
However, in India not much has been debated on the issue of mode of execution of death
sentence.
The Indian State argues that the death penalty is required to instil fear as a means of deterring
future criminals, and to safeguard society against rising crime and terrorist acts. In 1995 the
Indian government told the UN Human Rights Committee that the death penalty has been
retained in the Indian statutes, largely in view of its deterrent value.
1
Yet evidence from
around the world does not support the deterrence argument. The most recent comprehensive
survey of research findings on the relation between the death penalty and homicide rates,
conducted for the United Nations in 1988 and updated in 2002, concluded: it is not
prudent to accept the hypothesis that capital punishment deters murder to a marginally greater
extent than does the threat and application of the supposedly lesser punishment of life
imprisonment.
2

In addition to the adoption of mandatory death sentences in the 1980s and the inclusion of the
death penalty in successive anti-terrorist legislation since the 1990s, there have been
discussions in the Government about including the death penalty for several other crimes in
response to public outcries about rising crime and the ineffectiveness of the criminal justice
system. The death penalty for dangerous driving was reported to be under consideration in
1997, as has the death penalty for rape since the 1990s and for the sale and manufacture of
counterfeit medicines in 2003. It is to be welcomed that sense has so far prevailed in such
debates about expanding the death penalty still further as a means of addressing these

1
Indias third periodic report to the UN Human Rights Committee on implementation of the ICCPR submitted
in November 1995, UN Doc. CCPR/C/76/Add.6, para 57.
2
Roger Hood, The Death Penalty: A World-wide Perspective, Oxford, Clarendon Press, Third edition, 2002, p.
230.
problems. Such proposals simply distract attention from measures that might properly address
the serious problem of violent crime.
PRINCIPLES LAID DOWN BY COURT FOR GIVING DEATH PENALTY IN CASE
OF CIRCUMSTANCIAL EVIDENCE
Principles For Establishing Guilt Under Circumstancial Evidence
In Hanumant Govind
3
,Honble Supreme Court gave the following conditions which must be
fulfilled to establish the guilt of accused in cases where evidence is of circumstancial nature.
(1) The circumstances from which the conclusion of guilt is to be drawn should be
fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other hypothesis except
that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency,
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so 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.
This circumstances are mentioned in many cases
4
by Supreme Court itself.
Principles For Awarding Death Penalty
In Aloke Nath Dutta
5
a Division Bench of this Court referred to the Constitution
bench judgment of this Court in Bachan Singh
6
in which it is laid down that death
penalty should only be imposed in the rarest of rare cases. In Machi Singh
7
a 3 Judge

3
Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh , 1953CriLJ129; Sharad Birdhichand
Sarda v. State of Maharashtra,1984CriLJ1738; Dhananjay Chatterjee alias Dhana v. State of West Bengal,
(1994)2 SCC 220.
4
Aloke Nath Dutta and Ors. v. State of West Bengal 2006(13) SCALE467;Swamy Shraddananda v. State
of Karnataka,AIR 2007 SC 2531; Bishnu Prasad Sinha & anr. V. State of Assam,AIR 2007 SC 848;
5
Aloke Nath Dutta and Ors. v. State of West Bengal 2006(13) SCALE467 .
6
Bachan Singh v. State of Punjab,1980CriLJ636.
7
Machi Singh v. State of Punjab 1983CriLJ1457.
Bench of this Court gave the following illustrations of murders which fall within the
category of 'rarest of rate cases' and hence deserved death penalty.
(i) 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.
(ii) 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--vis whom the murderer is in a dominating position
or in a position of trust; or murder is committed in the course of betrayal of the motherland.
(iii) 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 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 to marry another woman on
account of infatuation.
(iv) 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.
(v) When the victim of murder is an innocent child, or a helpless woman or old or
infirm person or a person vis--vis whom the murderer is in a dominating position, or
a public figure generally loved and respected by the community.
CASES SUPPORTING DEATH PENALTY IN CASE OF CIRCUMSTANCIAL
EVIDENCE
In the case of Dhananjay Chatterjee
8
, the Honble Supreme Court stated that it is settled law
that in a case based on circumstantial evidence, circumstances from which the conclusion of
guilt is to be drawn have not only to be fully established but also that all the circumstances so
established should be of conclusive nature and consistent only with the hypothesis of the guilt
of accused. The court also stated that since the facts of case makes it a rare of rarest cases
which calls for no punishment other than capital punishment and accordingly the court
conformed the sentence of death.

8
Dhananjay Chatterjee alias Dhana v. State of West Bengal, (1994)2 SCC 220.
In the above case, a most heinous type of barbaric rape and murder was committed on a
helpless and defenceless school going girl of 18 years. The offence was not only in human,
and barbaric and was also totally ruthless crime of rape followed by cold blooded murder and
an affront to the human dignity of the society. A cold blooded pre-planned brutal murder,
without any provocation, after committing rape on an innocent and defenceless young girl of
18 years, by the security guard certainly makes this case a rare of rarest case.
In the case of Bhawani Shankar
9
, the sentence of death was not awarded by the session judge.
But the court finds that the crime in this case was of atrocious nature and considered this case
as a rare of rarest case and awarded death penalty to accused.
In the case of Sharaddananda
10
, there was of difference of opinion among the judges and the
matter is referred to large Bench. According to Justice Katju, this case was rare of rarest
case in which capital punishment must be awarded. He also doesnt agree with the
observation made by the court in Aloke nath Duttass
11
, that in cases of circumstantial
evidence ordinarily the death penalty should not be awarded.
Although Shraddananda case has been referred to large bench since there was difference of
opinion. In this case Justice Katju has also stated that there is no principle of law that only
direct evidence is strong and reliable while circumstantial evidence is weak and
unreliable. Circumstantial evidence can be as strong and reliable as direct evidence,
but the only requirement is that the prosecution must establish beyond reasonable doubt that
there is a chain of links which connects the accused with the crime.
CASES NOT SUPPORTING DEATH PENALTY IN CASE OF CIRCUMSTANCIAL
EVIDENCE
In Aloke nath Duttass
12
, According to Justice Sinha there are many cases
13
which was
precedent to the court and states that if the offence is proved by circumstancial evidence
ordinarily death penalty should not be awarded. Taking those cases as a precedent Justice
Sinha in this case reduced the death penalty to imprisonment for life of co-accused.

9
State v. Bhawani Shankar, AIR 1953 Raj 17.
10
Swamy Sgharaddananda v. State of Karnataka,AIR 2007SC 2531.
11
Aloke Nath Dutta and Ors. v. State of West Bengal, (2007)12SCC230
12
Aloke Nath Dutta and Ors. v. State of West Bengal, (2007)12SCC230
13
Sahdeo & Ors. Etc. v. State of U.P.,AIR2004SC 3508,Sheikh Ishaqe 7 Ors. V. State of Bihar,1995CriLJ2682.
In the above case, judges were of opinion that this matter does not make out the case to be
one of rare of rarest cases. The reason behind this opinion was that the manner of commission
of offence was brusome but method applied was not cruel.
Even in case of Bishnu Prasad Sinha
14
, court didnt held the wounding head of 8 year old girl
child as an inhuman and barbaric offence. According to them the matter does not make out as
rarest of rare case. And didnt award the capital punishment to the accused.
In case of Amrit Singh
15
, court stated that in a case where the death was not found to be
intended to be caused, imposition of death in a case of this nature was improper even if the
murder of women was brutal.
In the case of Amrit Singh
16
, the accused aged 31 was convicted for offence of rape and
murder under section 376 and 302 of I.P.C. and sentenced to death by Additional Sessions
Judge which as then affirmed by Punjab High Court. In appeal against this sentence, the
Supreme Court declined to treat the case as rare of rarest and held that rape and murder of
deceased, a girl of about 7-8 years was no doubt brutal but it could have been monetary lapse
on the part of accused, seeing a lonely girl at a secluded place. He had no pre-meditation for
committing of offence. The offence may look to be heinous, but under no circumstances it
can be said to be rarest of rare case.
ARBITRARINESS IN SENTENCING
While successive Supreme Court constitutional benches have favoured judicial discretion
rather than the setting out of detailed guidelines on sentencing, the study demonstrated that
judicial discretion has proved inadequate as a safeguard against arbitrariness. The judgments
in numerous cases demonstrate that the courts, including the Supreme Court, have not always
followed the existing law and jurisprudence on death penalty cases consistently. In the same
month, different benches of the Supreme Court have treated similar cases differently, often
apparently reflecting their own positions for or against the death penalty. While in one case
the defendants youth could be a mitigating factor sufficient to commute the death sentence,
in another it could be dismissed as a mitigating factor. In one case the gruesome nature of the
crime could be sufficient for the Court to ignore mitigating factors and in another case a
similar crime was clearly not gruesome enough.

14
Bishnu Prasad Sinha and Anr. V. State of Assam, AIR 2007 SC 848
15
Amrit Singh v. State of Punjab,2007CriLJ298
16
Amrit Singh v. State of Punjab,2007CriLJ298
In August 2004, Dhananjoy Chatterjee was executed for the 1990 rape and murder of a girl
in the apartment building where he worked as a guard. He was the first person to be hanged
in India for over six years.
Three days after the execution, a similar case of rape and murder of a child was heard on
appeal by the Supreme Court in Rahuls Case
17
. The victim in the former case was 13 years
old; in the latter she was four-and-a-half. Neither of the accused had a previous criminal
record, and in neither case was any report of misconduct while in prison. Yet the Supreme
Court deemed Dhanajoy Chatterjee a menace to society and not only was his sentence upheld
by the Court but he was subsequently hanged. In Rahuls case, he was not deemed a menace,
and his sentence was commuted to life imprisonment.12
It is ironic that even while upholding Dhananjoy Chatterjees death sentence in 1994, Justice
Anand of the Supreme Court accepted that there were huge disparities in sentencing. He
noted: Some criminals get very harsh sentences while many receive grossly different
sentence for an essentially equivalent crime and a shockingly large number even go
unpunished thereby weakening the systems credibility. Two contradictory events over three
days show that a decade later, the inconsistencies remain.
CONCLUSION
The ruling in 1980 Supreme Court ruling in Bachan Singh v State of Punjab
18
in India have
limited the death penalty as applying only in the rarest of rare cases.
19
This phrase allows a
subjective element to enter the judges consideration as to whether the death penalty
applies.
20
Subsequent rulings have not clarified the content of this limitation, nor have clear
guidelines come to exist.
21
Arguably this has resulted in individual judges facing the onerous
task of interpreting this limitation during sentencing with little supporting resources.
22

In my opinion, if the guilt is established before the court then while awarding the punishment
it is irrelevant to consider the fact how the guilt was established. According to me, all the
accused in different matter(for e.g.: if matter is of Murder) are in different platform while
deciding the guilt but when the guilt is proved all accused must be treated as they are in one

17
Rahul alias Raosaheb v. State of Maharashtra (2005) 10 SCC 322.
18
AIR 1980 SC 898.
19
Ibid 899.
20
Soli Sorabjee, Death Penalty (2005) India Express
http://www.indianexpress.com/res/web/pIe/columnists/print.php?content_id=80566 at 12 February 2013.
21
India: Death Penalty (2006) Amnesty International
http://asiapacific.amnesty.org/library/Index/ENGASA200212006?open&of=ENG-2AS at 12 February 2013.
22
Ibid.
platform. If court is convinced that the matter is rare of rarest then the capital punishment
should be awarded to accused without considering the fact that the matter was established by
the evidence which is circumstantial in nature. I would conclude by saying that no law should
be laid down that no capital punishment should be awarded in case where the evidence is of
circumstantial nature but the awarding of capital punishment must be based on facts of the
case. If the case is of rare of rarest then capital punishment must be awarded.