BABLU @ MUBARIK HUSSAIN versus STATE OF RAJASTHAN

Citation: [2006] SUPP. 10 S.C.R. 835 · Decided: 12-12-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

BABLU @ MUBARIK HUSSAIN 
v. 
ST A TE OF RAJASTHAN 
DECEMBER 12, 2006 
[DR. ARIJIT PASAYA T AND S.H. KAPADIA, JJ.] 
Indian Penal code, 1860; 
Section 302-death sentence-award of-rarest of rare cases-explained. 
Section 85-intoxication-defence of-when can be availed of-explained, 
however, can never be an excuse for the brutal, diabolic acts of the accused. 
A 
B 
c 
Appellant was alleged to have murdered his wife, three daughters (all 
minors) and a minor son by strangulating them one by one. He was tried of 
the charge of offence punishable under Section 302 I.P.C. The trial court on D 
consideration of the evidence led by the prosecution found the appellant guilty 
of offence under Section 302 I.P.C had found the charge for commission of 
offence under Section 302 IPC to have been proved and imposed the death 
sentence. The trial Court had imposed a death sentence and, therefore, ma<4! 
a reference for confirmation of death sentence by the High Court in terms of E 
Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code'). 
Appellant also filed an appeal and both the case under reference and the appeal 
were taken up together and disposed of by a common judgment rendered by 
the High Court confirming the death sentence awarded to the appellant for 
commission of offence punishable under Section 302 of the Indian Penal Code, 
1860 (in short the 'IPC'). Hence, the present appeal. 
F 
It was contended by the appellant that the extra judicial confession relied 
upon by the prosecution is not correct. It was submitted that the alleged 
confession publicly standing on. a platform is highly improbable. Additionally, 
it was stated that the accused was in a state of drunkenness and did not know 
the consequences of what he did not and, therefore, death sentence should not G 
have been awarded. 
On behalf of the state, on the other hand, it was contended that the cruel 
and diabolic acts of the accused show that he does not deserve any leniency so 
835 
H 
836 
SUPREME COURT REPORTS [2006] SUPP. IO S.C.R. 
A far as the sentence is concerned. Drunkenness cannot be an excuse for such 
cruel and inhuman acts. 
Dismissing the appeal, the Court 
HELD I.I. Convicted can be based solely on circumstantial evidence but 
B it should be tested by the touch-stone of law relating of circumstantial evidence 
laid down by the this Court, viz. (i) the circumstances from which the 
conclusion of guilt is to be drawn should be fully established. The 
circumstances concerned must or should and not may be established; (ii) the 
facts so established should be consistent only with the hypothesis of the guilt 
of the accused, that is to <iay, they should not be explainable on any other 
C hypothesis except that the accused is guilty; (iii) the circumstances should 
be of a conclusive nature and tendency; (iv) they should exclude every possible 
hypothesis expect the one to be proved; and (v) 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 
D the act must have been done by the accused. [842-G; 843-A, BJ 
Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063; Eradu and 
Ors. v. State of Hyderabad, AIR (1956) SC 316; Earabhadrappa v. State of 
Karnataka, AIR (1983) SC 446; State of UP. v. Sukhbasi and Ors., AIR (1985) 
SC 1224; Ba/winder Singh v. State of Punjab, AIR (1987) SC 350 and Ashok 
E Kumar Chatterjee v. State of M.P., AIR (1989) SC 1890, referred to. 
Bhagat Ram v. State of Punjab, AIR (1954) SC 621; C. Chenga Reddy 
and Ors. v. State of A.P., (1996) 10 SCC 193; Padala Veera Reddy v. State of 
A.P. and Ors., AIR (1_990) SC 79; State of UP. v. Ashok Kumar Srivastava, 
AIR (1992) SC 840; Wills' Circumstantial Evidence" (Chapter VI) by Sir 
F Alfred Wills; Hunumant Govind Nargundkar and Anr. v. State of Madhya 
Pradesh, AIR (1952) SC 343 and Sharad Birdhichand Sarda v. State of 
Maharashtra, AIR (1984) SC 1622, relied upon. 
2.1. Section 361 which is a new provision in the Code makes it 
G mandatory for the court to record "special reasons" for not applying the 
provisions of Section 360. Section 361 thus casts a duty upon the court to 
apply the provisions of Section 360 wherever it is possible to do so and to 
state "special reasons" if it does not do so they "special reasons" 
contemplated by Section 361 must be such as to compel the court to hold that 
it is impossible to reform an

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