LexBANTU versus THE STATE OF U.P.
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, i, [2008] 11S.C.R.184 A -.Jr BANTU v. THE STATE OF U.P. (Criminal Appeal No. 117 Of 2007) B JULY 23, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860 - ss.302, 364, 376 - Rape followed c by murder - Death penalty - Appellant raped minor girl aged 5 years and thereafter murdered her by inserting stem/stick in her vagina - Death sentence by Courts below - Justification of- Held: Justified, since the case at hand belonged to rarest of rare category - Sentencing - Proportionate punishment. D Evidence - Circumstantial evidence - Appreciation of According to the prosecution, Appellant raped a mi- nor girl aged 5 years and thereafter murdered her by in- serting stem/stick in her vagina. Appellant was found in a E naked condition at the spot and was caught by PW 2,3 and others. He at that time was not wearing any under- wear. The pant which he was made to wear before he was taken to the police station was seized by the police and was sent for chemical examination to ascertain marks of F blood, semen etc .. The chemical exami~er in its report found blood stains, sperms and semen on the pant of the deceased. The Trial Court convicted Appellant under Sec- ~ tions 364, 376 and 302, IPC and sentenced him to death. Appellant filed appeal before High Court contending that the circumstances of the case did not make out the al- G leged offence. The High Court held that in order to cam- ouflage the serious kind of rape in a planned manner and after committing rape, Appellant mercilessly inserted wooden stick deep inside the fragile vagina of the girl to the extent of 33cms to cause her death, with a view to H 184 ...... BANTU v. THE STATE OF U.P. 185 -~ masquerade the crime as an accident. Placing reliance A on the evidence of PWs2, 3 and three others who had taken the accused to the police station, High Court up- held the conviction of Appellant and the death sentence imposed upon him. The stand taken before the High Court by Appellant B was reiterated before this Court in the present appeal. Ad- ditionally it was submitted that the case was one where even if prosecution version is accepted in toto, death sen- tence was not the appropriate sentence. c Dismissing the appeal, the ~ourt, HELD:1.1. For a crime to be proved it is not neces- sary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocu- D lar 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 tac- tum probandum may be proved indirectly by means of cer- tain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evi- E dence is not direct to the point in issue but consists of evidence of various other facts which are so closely as- sociated 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. F [Para 10] [195-G, 196-A,B,C] 1.2. 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 G to be incompatible with the innocence of the accused or the guilt of any other person. [Para 11] [196-C,D] 1.3. 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 H 186 SUPREME COURT REPORTS [2008] 11 S.C.R. A closely connected with the principal fact sought to be in- ferred from those circumstances. [Para 11] [196-E] 1.4 In the present case, it is obvious that Appellant wanted to camouflage the serious crime of rape commit- B ted by him over the 5 years old girl. So in a planned man- ner, after committing rape, he mercilessly inserted stem/ stick deep inside the fragile vagina of the girl to the ex- tent of 33 ems. to cause her death, with a view to mas- querade. the crime as an accident. It was his cruel in nova- e tion that he inserted a stick deep into her vagina causing death of the victim. It was just by providence that due to timely reach of the witnesses (PWs 2, 3 & others) (who were frantically searching the girl) he could be caught in naked condition while inserting stick into the vagina of the victim. He was near the lifeless body of the victim. [Para D
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