Madhya Pradesh High Court
Anand Kushwaha vs The State Of Madhya Pradesh on 17 May, 2019
Equivalent citations: AIRONLINE 2019 MP 1149
Author: J.K. Maheshwari
Bench: J.K. Maheshwari, Anjuli Palo
HIGH COURT OF MADHYA PRADESH : JABALPUR.
DIVISION BENCH
BEFORE: JUSTICE J.K. MAHESHWARI
JUSTICE ANJULI PALO
Criminal Appeal No. 646/2019
Anand Kushwaha
Vs.
State of M.P.
For Appellant: Shri Premchand Batri, Adv.
Shri Anurag Sahu and
Shri Dev Datt Bhave
(amicus curiae)
For Resp.- State: Shri Kuldeep Singh,
Government Advocate.
Criminal Reference No. 19/2018
In Reference (Suo Motu)
Vs.
Anand Kushwaha
_________________________________________________________
For Appellant: Shri Kuldeep Singh, Adv.
For Resp. : Shri Siddharth Sharma
(amicus curiae)
_________________________________________________________
JUDGMENT
(17/05/2019) Per- J.K. Maheshwari, J.
Being aggrieved by the judgment dated 17.12.2018 passed by XIV Additional Sessions Judge, Jabalpur in Sessions Trial No. 159/2018 convicting the appellant- accused under Sections 363, 366A, 376(2)(f)(i), 376-A read with Section 376-AB, 302 and 201 of IPC and sentencing 2 him to undergo the rigorous imprisonment for two years, five years rigorous imprisonment, imprisonment for life, capital punishment, capital punishment and five years rigorous imprisonment respectively with default stipulation, he has preferred criminal appeal.
2. The Criminal Reference has been sent by the trial court under Section 366(1) of Cr.P.C. for confirmation of the death penalty, however, both the cases are arising out of the same judgment, therefore, they are being heard and decided by this common judgment.
3. The case of the prosecution in brief is that on the date of incident i.e. on 19.8.2018 at about 7.00 pm when father of the prosecutrix returned back to home after the labour work, he did not find the prosecutrix at home. On asking from the accused, he told that after giving chocolate to prosecutrix he took her for a round on the motorcycle and left her. After enquiry from the villagers, when the prosecutrix could not be traced out, a report was lodged in the Police Station, Katangi at about 10.30 in the morning on 20.8.2018. Thereupon police went to village Jatasi and enquired from the accused about the prosecutrix. The accused on his memo under Section 27 of the Evidence Act disclosed to police that he took prosecutrix in a room of his house and committed rape with her due to which excessive bleeding from her private part was there. Due to excessive bleeding, she became unconscious, however, he killed her by gagging her mouth and 3 thrown her dead body in the septic tank of his house. On the instance of the accused, the dead body of prosecutrix was taken out from the septic tank and the bloodstained undergarments, a bloodstained plastic bag, bloodstained mattress, quilt and blanket were seized from the room. The postmortem of the dead body was performed by a panel of three doctors in the Medical College Jabalpur on 21 st August, 2018. The report of Forensic doctor has also been obtained and after taking blood sample of accused it was sent for DNA examination to which a report was received and after investigation, challan was filed against the accused in the competent court under Sections 363, 376 (2)(f)(i), 376-AB, 377, 302 and 201 of IPC and Section 3(a), 4, 5(m)/6 of the POCSO Act.
4. The said offences were triable by the court of session, however, it was committed to the competent court where the charges under Sections 363, 366-A, 376(2)(f)(i), 376-A read with Section 376-AB, 302 and 201 of IPC and Section 5(m)(i)/6 of the POCSO Act were framed against the accused. The appellant/accused abjured his guilt and demanded for trial. He has taken a defence under Section 313 of Cr.P.C. that he has not committed any offence and due to old enmity he has been falsely implicated.
5. The trial court formulated as many as nine questions, relating to age, the nature of death, commission of rape and murder of prosecutrix. It is 4 concluded that the age of prosecutrix was below 12 years. It is further concluded that the nature and cause of death of deceased is homicidal, relying upon the testimony of the father of prosecutrix Sudarshan Prasad (PW-1), witnesses of the memorandum, seizure of articles and dead body Jitendra Singh Sengar (PW-4) and Guddu Prasad Jhariya (PW-9). The Court further relied upon the statement of the Dr. Adarsh Vishnoi (PW-2) and the investigating officer Rakesh Tiwari (PW-
13) and other evidence of seizure of various articles and deposit in the Malkhana and also relying upon the testimony of Dr.Neeta Jain (PW-5), FSL Expert and the DNA report it is concluded that the accused committed rape with the prosecutrix aged 5 years and committed her murder by throttling in association with smothering, however, recording the findings of conviction, trial court directed to undergo sentence as described hereinabove.
6. Learned counsel appearing on behalf of the appellant as well as learned amicus curiae have argued with vehemence that looking to the prosecution allegation the accused enticed the prosecutrix by offering chocolate and took her for a round on the motorcycle, but the said fact has not been proved bringing any cogent evidence including the last seen of the prosecutrix with the accused with a recovery of motorcycle. The dead body of the deceased was found in the septic tank which was on an open place and was not covered by lid in courtyard of the house, however, 5 the dead body could be thrown by any one in the septic tank. The memorandum of the accused under Section 27 of the Evidence Act was recorded in front of Jitendra Singh Sengar (PW-4) and Guddu Prasad Jhariya (PW-
9), who has not fully supported the case of the prosecution while other witness Sanjay Garg has not been examined by the prosecution in the case. It is further urged that the incident took place on 19.8.2018. The FIR was lodged on the next date on 20.8.2018 at about 10.30 am. Thereafter, the police reached on the spot. As per Sudarshan Prasad Kushwaha (PW-1), he informed the police in the night and police came in the village immediately, but no document is made available on record to show that any entry was made by the Police in the Rojnamcha Sanha regarding the information given by Sudarshan Prasad Kushwaha (PW-1) in the night about missing of his daughter or reaching to the village. Similarly, the entry in Rojnamcha regarding return of the police from the village is also not brought on record. In addition to the aforesaid, the seizure was made by the police regarding various articles of the victim on 20.8.2018 and 21.8.2018. No evidence is available on record regarding keeping of the those articles in safe custody. The seizure of the semen slide and other articles of the accused were made on 21.8.2018 while blood sample of accused for DNA test was taken by the Dr. Shilpi Jain (PW-6) on 23.8.2018. Nothing is available on record to show that from 20-21st of August, 2018 till sending the said articles and blood samples for DNA test where it 6 were kept and the place to keep it prior to sending the same to FSL or DNA was safe or whether it were received intact with seal to which the evidence of the expert has not been recorded, therefore, the DNA report which is relied upon by the trial court is doubtful. It is further found that the testimony of the witnesses Sudarshan Prasad Kushwaha (PW-1), Jitendra Singh Sengar (PW-4) and Guddu Prasad Jhariya (PW-9) as well as of the Investigating Officer Rakesh Tiwari (PW-
13) is full of omission and contradictions, therefore, in a case of circumstantial evidence the finding to convict the appellant-accused recorded by the trial court is unsustainable.
7. In addition to the aforesaid, in an alternative, it is urged that it is not a case in which the imprisonment of life is not the adequate punishment foreclosing other option. The trial court committed an error while pronouncing the judgment and for the adequate reasons sentence of death penalty without preparing the balance-sheet of aggravating and mitigating circumstances in the facts of the case, therefore, setting aside the death penalty, the sentence to the appellant- accused may be commuted to the life imprisonment.
8. On the other hand, learned Government Advocate has strenuously urged that it is a case in which a girl aged five years who was cousin sister of the appellant- accused was raped and killed by him and thereafter to disappear the evidence of commission of rape and 7 murder, he dumped her dead body in a septic tank constructed in the courtyard of the house. It is further argued that true it is a case of circumstantial evidence, but, looking to the evidence of Sudarshan Prasad Kushwaha (PW-1), Jitendra Singh Sengar (PW-4), Guddu Prasad Jhariya (PW-9) and Rakesh Tiwari (PW-
13) it has been proved that the appellant-accused was last seen with the deceased and at his instance the recovery of articles were made including the dead body of deceased. Those articles were sent for DNA test and the report of the DNA matched with the DNA of the appellant-accused, therefore, in such a case the trial court has rightly recorded the finding of conviction and the sentence of death penalty assigning special reason as contemplated under Section 354(3) of Cr.P.C.. However, in the facts of the case, interference in this appeal is not warranted and the reference sent by the trial court to affirm the death penalty to appellant- accused may be confirmed.
9. After having heard learned counsel for both the parties, first of all it is to observe that on the point of age of the deceased i.e. five years, there is no dispute and no argument has been advanced to say that the age of the girl was more than 12 years or it has not been proved, therefore the finding recorded by the trial court regarding the age of the deceased remained unchallenged, hence, on the point of age, interference is not warranted, and those findings are just.
810. So far as the issue regarding commission of rape and anal intercourse connecting the accused in commission of the crime and thereafter committing her murder is concerned, in this regard we have examined the testimony of Sudarshan Prasad Kushwaha (PW-1). As per his testimony on the date of incident i.e. on 19.8.2018 he and his wife had gone to Village Boriya to do the labour work leaving their kids at home. When they returned back at about 7.00 pm in the evening, he asked from his son about his daughter (deceased), who was not found at home. It is said that she would be playing some where, then father asked him to search her and bring at home. After search they returned back and said that she is not traceable anywhere. Thereafter he said to his wife for search, but, when the deceased could not be traced out she also came back with tears in her eyes. Then he went for searching of his daughter (deceased) to the colony of appellant-accused where it was informed that appellant-accused was roaming with the deceased and taking round on a motorcycle in the noon at day time. Then he came back and told the residents of the colony that his daughter (deceased) is missing. Thereafter, he alongwith residents of the colony and villagers started search of the deceased, but she could not be traced out, then he informed the police about the incident on phone. Thereafter, police came and asked him, you have suspicion on any one and with whom the deceased was last seen. He informed the police that the residents of colony saw the appellant-accused last with his daughter (deceased) 9 roaming on the motorcycle taking round of the village. The FIR Ex.P/1 was lodged on the next day i.e. on 20.8.2018. In the cross-examination of Sudarshan Prasad Kushwaha (PW-1), the fact regarding information given by the neighbour has not been established by any independent witness in the Court. The factum of intimation to the police in the night about the incident has also not been proved by cogent evidence available on record even by the statement of Investigating Officer Rakesh Tiwari (PW-13). The statement of the said witness is ocular on the point of interrogation of the accused, either in the police station or in the premises of Nahan Devi Temple. But, on the point of recovery, their testimony is inocular.
11. As per the statement of Jitendra Singh Sengar (PW-4), he went to search the victim in the evening alongwith Sanjay Garg, Nand Kishore Patel and Mahendra Parihar and other villagers, but, in the cross- examination he admitted that he is a resident of Kakrehta and the father of the deceased is a resident of Jatasi. The incident is also of village Jatasi. The Gram Panchayats of both the villages are different. It is further admitted by him that he had not gone to village Jatasi in the night on 19.8.2018, but he had gone to the said village on 20.8.2018 in the morning. On the point of recovery, except the place of septic tank, his testimony is inocular. It is to be noted here that the police has not recorded the statement of any villager i.e. Sanjay Garg, Nand Kishore and Mahendra Parihar and 10 they have not deposed before the Court regarding the roaming of the deceased with accused or last seen or of the search of deceased. It is to be noted here that the police has also not brought any neighbour residing near the house of the complainant where the incident took place i.e. Munna, Umesh, Dashrath and Sushil in the witness box before the Court. The investigating officer in his statement has not given any explanation that why the statements of the neighbours or villagers have not been recorded on the issue that the accused and deceased were roaming in the motorcycle in the day time and the appellant allured the deceased by offering the chocolate to her. Therefore, the said circumstance though weak, but, the testimony of Sudarshan Prasad Kushwaha (PW-1), Jitendra Singh Sengar (PW-4) and Rakesh Tiwari (PW-13) and the memo of recovery regarding dead body from the septic tank and also the recovery of the articles that includes the clothes of the accused, mattress, quilt, blanket, clothes of the girls including undergarments on the instance of the accused and other clothes which cannot be doubted and have been proved beyond reasonable doubt connecting the appellant-accused with the crime. The seizures were made by the police on 20/21 st August, 2018 that includes vaginal swab slide, anal swab slide and also the semen slide of the accused. The blood sample of the accused for DNA test had been taken by Dr. Shilpi Jain (PW-6) on 23.8.2018. She kept the same in the EDTA (ethylene diaminetetra acetic acid), sealed the same and after keeping the same in 11 the ice box handed over the same to constable Shri Ram Kurmi (No.638), which was sent for DNA test by letter of the Superintendent of Police dated 23.8.2018 Ex.P/27 to the FSL Sagar. The postmortem of the deceased was conducted by a team Dr. Adarsh Vishnoi (PW-2) which included Dr. Nidhi Sachdeva and Dr. Mukesh Rai. The said postmortem report Ex. P/10 has been proved by him. Looking to the said report ante- mortem injuries were found on the body of deceased, which are as under:-
"(1) Multiple red contusion 4 in number present over the anti-lateral aspect of neck, at the level of thyroid cartilage size 2 x 1 cm to 0.5 x 0.5 cm deep cut underneath neck muscles and soft tissue contused.
Thyroid cartilage is fractured in middle deep cut effusion of blood present.
(2) Multiple red crescentric hair mark abrasion present over anterior aspect of neck size ranging from 0.5 x 0.1 cm to 0.3 x 0.2 cm.
(3) Multiple redion contused abrasion 4 in number present over inner aspect of upper and lower lips size ranging from 1 x 1 cm to 0.5 x 0.5 cm. Swelling of both lips present.
(4) One red crescentric nail mark abrasion present in the left side of face 4 cm lateral to left side of mouth. (5) Reddish contusion of size 0.5 x 0.5 cm present over medial aspect of thigh.
(6) Reddish contusion of size 1.5 x 0.5 cm present over the medial aspect of left thigh upper side."
On internal and external examination of the private part of the deceased, the doctor found the following injuries:
"Multiple laceration in vagino Anal Region resulting in severe mutilation of vagina and anus, effusion of blood with clotted blood present."
In the opinion of the doctor the death was due to asphyxia as a result of ante-mortem throttling in 12 association with smothering. The death was homicidal. Doctor also opined that there were signs of recent forceful vagino-anal penetration, which were prior to death of the deceased.
12. The DNA report has been received on 6.9.2018 and as per the DNA report Ex.P/28, Y-chromosomes DNA profile found on EX-A & EX-J (Vaginal Swab) and on EX-D and Ex-L (Anal Swab) and the Y-chromosomes DNA profile of the accused blood sample EX-P were same. The Y-chromosome DNA profile of the sized quilt EX-W and Y-chromosome DNA profile of blood sample EX-P were same. Mixed male Autosomal STR DNA profile of the Vaginal swab and Anal swab, EX-A, J, D & L of the deceased and the Autosomal STR DNA profile of the blood sample of accused were same. In mixed Autosomal STR DNA profile of seized Vest Ex-U and underwear EX-V seized from the accused, Female Autosomal STR DNA profile has matched with the bone EX-F of the deceased. From the quilt EX-W and blanket EX-X and sack EX-Z1, Female Autosomal STR DNA profile was found, which matched with Female Autosomal STR DNA profile found in EX-F bone of the deceased.
13. In view of the foregoing evidence, though the same were circumstantial evidence, but the incriminating and cogent evidence implicating the accused in commission of the offence by his disclosure about commission of offence in his memorandum and the 13 recoveries made at his instance have been proved by inocular testimony of Jitendra Singh Sengar (PW-4) and Guddu Prasad Jhariya (PW-9) which is concurred with the statement of Rakesh Tiwari (PW-13). Therefore, in view of the aforesaid, the allegation of commission of offence under Section 363, 366-A, 376(2)(f)(i) alongwith Section 376-A and 376-AB and Section 302/201 of IPC have been proved by the prosecution beyond reasonable doubt. Even though there are some discrepancies in the statements of Sudarshan Prasad Kushwaha (PW-1), Jitendra Singh Sengar (PW-4) and Guddu Prasad Jhariya (PW-9), but looking to the cogent evidence, connecting the circumstances as discussed above in addition to the finding of guilt as recorded by the trial court, the prosecution proved the aforesaid charge beyond reasonable doubt.
14. Now coming to the point of sentence, the trial court recorded a finding in the facts of the case that the girl aged five year was raped by her cousin brother (accused) and committed her murder brutally, which was diabolic and cruel act due to which the mutual relations have been seriously prejudiced. The trial court further said that by the act of the appellant-accused the relation of brother and sister has been seriously affected. The said act has been done in a planned manner and there is no possibility of reformation and mental upgradation of the appellant-accused. The said offence was shocking and affect the collective conscience of the society, therefore, it falls within the 14 purview of rarest of rare case. Consequently, the trial court directed for capital punishment.
15. In this regard learned counsel for the appellant- accused and the amicus curiae appearing in reference submitted that it is not a case in which the options of other punishment are unequivocally foreclosed. The trial court has not considered the mitigating circumstances preparing the balance-sheet of the aggravating and mitigating circumstances to record a finding of rarest of rare case. In absence thereto, the sentence of death penalty for some of the charges as directed is not in conformity to law.
16. After hearing learned counsel for the parties on the question of death sentence and on considering overall facts and circumstances of the case and also the evidence, it is apparent that this issue is of complex nature to which the preparation of balance sheet of aggravating and mitigating circumstances would be a relevant factor. The doctrine of rehabilitation is a paramount consideration looking to 262 nd report of the Law Commission which has been considered by three Judges Bench in the case of Chhannulal Verma vs. State of Chhattisgarh reported in 2018 SCC Online SC 2570, which is also one of the relevant factor. The case at hand is a case of circumstantial evidence in which the doctrine of prudence is also one of the relevant factors to award the death penalty. As per the judgment of Apex Court in the case of Santosh 15 Kumar Satishbhushan Bariyar v. State of Maharashtra reported in (2009) 6 SCC 498. Simultaneously the doctrine of proportionality is also relevant factor as enunciated by the Apex Court in the case of Ram Naresh vs. State of Chhattisgarh reported in (2012) 4 SCC 257, therefore, all these factors require consideration. To reach on a concrete conclusion in the case at hand, we can take guidance from the judgments of the Apex Court. In such cases the sentencing policy as framed by the Apex Court by precedents would be referred. The life imprisonment is a normal sentence based on assigning the reasons while the death penalty must be based on assigning the special reasons as enumerated under Section 354(3) of Cr.P.C. in rarest of the rare cases, therefore, the said issue has been discussed in the succeeding paragraphs in the had of sentencing policy.
Sentencing Policy:
The validity of the death sentence alleging to be violative of freedom guaranteed under Article 19 and 14 of the Constitution of India because it suffers from excessive delegation of power and under Article 21 of the Constitution of India depriving a citizen of his life and personal liberty without following the procedure established by law was assailed in the case of Jagmohan Singh vs. The State of U.P. reported in (1973) 1 SCC 20. The Apex Court in the said judgment referring the provisions of Article 72(1)(c), and 134 of the Constitution of India and entries 1 and 2 in the list 16 of the Seventh Schedule to the Constitution said that the death sentence has been recognized as a permissive punishment because the provision for appeal, reprieve, and the like have been enumerated by statute. In addition, under Article 21 of the Constitution of India it is specified that no person shall be deprived of his life and liberty except according to procedure established by law. However, the constitutional implication is very clear; the deprivation of life of citizen is constitutionally permissible if that is done according to procedure established by law. Therefore, the Court held that capital sentence is not violative of the constitutional provisions. It is also held that capital punishment cannot be said to be either unreasonable or not in the public interest. While upholding the constitutional validity of the death punishment, the Apex Court has emphasized that the Court while awarding the capital punishment must ascertain the facts and circumstances whether aggravating or mitigating have relevance with the particular crime under enquiry and trial. Thus, concluded that the death penalty imposed after trial in accordance with the procedure established by law and is not unconstitutional as per Article 21 of the Constitution of India.
17. In the said case, the Court while dealing with the constitutional validity of the capital punishment has considered the Thirty Fifth report of the Law Commission of India published in 1967. The said report was not in favour of the abolition of the death penalty.
17Simultaneously the Court has also considered the fact that initially the Bill for abolition of the capital punishment was introduced in the Lok Sabha in 1956, but the same was rejected in November, 1956. Thereafter, a resolution was introduced in Rajya Sabha in 1958, but the same was withdrawn. Subsequently, in 1962, the Rajya Sabha negatived the said Bill. The Court also observed that the report of the Law Commission of India which was after deliberation and the Bill for abolition of the death penalty brought before the Lok Sabha and Rajya Sabha indicates that the law framers do not welcome the perspective of abolition of capital punishment. In view of the foregoing facts it was held that the Court is not inclined to conclude that the capital punishment is either unreasonable or not in the public interest. Thereafter, the issue regarding laying down the standard or guidelines on the judges to impose the penalty was considered because wide discretion has been conferred on them. The Apex Court said that looking to the facts and circumstances of the case to which trial is to be conducted by the judge in front of him in the Court following the procedure as contemplated under the Code of Criminal Procedure and the Evidence Act. The judge may have minutely understood the facts and circumstances and demeanor of the witnesses, victim and accused to impose the penalty, therefore wide discretion has been conferred under the Indian Penal Code giving a minimum and maximum penalty and for suitable sentence the power ought to be exercised by the judge looking to the 18 circumstances of the individual case. The judges are discharging onerous duties since more than a century even after commencement of the IPC. Therefore, such discretion cannot be said to be unreasonable or requires any standard to be laid down.
18. After the judgment of Jagmohan Singh (supra), Section 354(3) of Cr.P.C. was amended on 1.4.1974. The issue regarding imposition of the death penalty in the context of Section 354(3) of Cr.P.C. first time came for consideration in the case of Balwant Singh vs. State of Punjab reported in (1976) 1 SCC 425 in which the Court sum up the scope of Section 354(3) as thus:
"Under this provision the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case."
19. Thereafter, in the case of Rajendra Prasad vs. State of Uttar Pradesh reported in 1979 (3) SCR 646 again the issue regarding imposition of the death penalty has been taken into consideration in the perspective of human rights jurisprudence within the limits of the Penal Code, impregnated by the Constitution. In this context the world voice showing the worth of the human person, a cultural legacy 19 charged with compassion, an interpretative liberation from colonial callousness to life and liberty having concern for social justice as setting the rights of individual justice, interest with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and Articles 14,19 and 21 of the Constitution has been considered. The Apex Court considering the issue of social justice which is the genesis of Part-4 of the Constitution and which recognizes the concept of reasonableness and non-arbitrariness in the context of Article 38, 19 and 14 of the Constitution observed as under:
"12. The social justice which the Preamble and Part IV (Art. 38) highlight, as paramount in the governance of the country has a role to mould the sentence. If the murderous operation of a die-hard criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated. One test for imposition of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. Some of the principles are-never hang unless society or its members may lose more lives by keeping alive an irredeemable convict. Therefore social justice projected by Art. 38 colours the concept of reasonableness in Art. 19 and non-arbitrariness in Art. 14. This complex of articles validates death penalty in limited cases. Maybe train dacoity and bank robbery bandits reaching menacing proportions, economic offenders profit killing in an intentional and organised way, are such categories in a Third World setting."
The Court in the said case has explained the social aspects with respect to offenders. The Court has observed as thus:-
"Social defence against murderers is best insured in the short run by caging them but in the long run, the real run, by transformation through re-orientation of 20 the inner man by many methods including neuro- techniques of which we have a rich legacy. If the prison system will talk the native language, we have the yogic treasure to experiment with on high-strung, high-risk murder merchants. Neuroscience stands on the threshold of astounding discoveries. Yoga, in its many forms, seems to hold splendid answers. Meditational technology as a tool of criminology is a mascent-ancient methodology. The State must experiment. It is cheaper to hang than to heal, but Indian life-any human life-is too dear to be swung dead save in extreme circumstances."
Thereafter referring the conduct and demeanor of the offender the Court emphasized as under:-
"Nothing on record suggests that Rajendra Prasad was beyond redemption; nothing on record hints at any such attempt inside the prison Lock-up of a criminal for long years behind stone walls and iron bars, with drills of breaking the morale, will not change the prisoner for the better Recidivism is an index of prison failure, in most cases. Any way, Rajendra showed no incurable disposition to violent outbursts against his fellow-men. We see no special reason, to hang him out of corporeal existence. But while awarding him life imprisonment instead, we direct for him mental-moral healing courses through suitable work, acceptable meditational techniques and psychotherapic drills to regain his humanity and dignity. Prisons are not human warehouses but humane retrieval homes."
In the context of amended provision of Section 354(3) of Cr.P.C., referring section 367(5) of CrP.C., the Apex Court observed as under:
"To start with, s. 367(5) obligated the court to 'state the reason why sentence of death was not passed'. In other words, the discretion was directed positively towards death penalty. The next stage was the deletion of this part of the provision leaving the judicial option open. And then came the new humanitarian sub-section [s. 354 (3)] of the Code of 1973, whereby the dignity and worth of the human person, under-scored in the Constitution, shaped the penal policy related to murder."21
20. In the said judgment, with a majority view the Court held that the sacrifice of a life sentence is sanctioned only if otherwise public interest and social defence and public order would be smashed irretrievably. Such extraordinary grounds alone constitutionally qualify as special reasons. One stroke of murder hardly qualifies for this drastic requirement, however gruesome the killing may be. The searching question the Judge must put to himself is what is so-extra-ordinarily reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totality of facts. The Court in the said judgment has described the reformative theory of punishment in expanding years.
21. In view of these two judgments, in Bachan Singh Vs. State of Punjab reported in AIR 1980 SC 898 two questions were cropped up for consideration:
(i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional?
(ii) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrary or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life.
The Court has considered the constitutional validity in the context of Article 19, 21 and 22 of the Constitution of India. In the said context, the Court has 22 referred the 35th and 36th reports of the Law Commission of India and also the arguments of the abolitionist which have been substantially adopted by the learned counsel for the petitioner that the death penalty is irreversible. Decided upon according to fallible process of law by fallible human beings, it can be - and actually has been - inflicted upon people innocent of any crime. While answering the said argument, the Court observed as under:-
"Regarding (a): It is true that death penalty is irrevocable and a few instance, can be cited, including some from England of persons who after their conviction and execution for murder, were discovered to be innocent. But this, according to the Retentionists is not a reason for abolition of the death penalty, but an argument for reform of the judicial system and the sentencing procedure. Theoretically, such errors of judgment cannot be absolutely eliminated from any system of justice, devised and worked by human beings, but their incidence can be infinitesimally reduced by providing adequate safeguards and checks. We will presently see, while dealing with the procedural aspect of the problem, that in India, ample safeguards have been provided by law and the Constitution which almost eliminate, the chances of an innocent person being convicted and executed for a capital offence."
The other argument-(b) is in three steps, which is as under:
(b) There is no convincing evidence to show that death penalty serves any penological purpose:
(i) Its deterrent effect remains unproven. It has not been shown that incidence of murder has increased in countries where death penalty has been abolished, after its abolition.
(ii) Retribution in the sense of vengeance, is no longer an acceptable end of punishment.
(iii) On the contrary, reformation of the criminal and his rehabilitation is the primary purpose of 23 punishment. Imposition of death penalty nullifies that purpose.
22. The Court, after referring various judgments of the Supreme Court of India, Supreme Court of US, views of various penologists, report of British Commission, report of Amnesty International, 1979 and the Surveyors arrived at a conclusion that it has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to the death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution. The Court said that it is not necessary to express any categorical opinion, one way or the other, looking to the antithetical views of the Abolitionists and Retentionists and to show which view is correct. The Court opined that the very fact that, the persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is sufficient to reject the arguments as advanced by the petitioner in the perspective of prevailing crime condition in India, contemporary public opinion channelized through the people's representatives in Parliament. It is said that the death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world. Referring 35th report of the Law Commission of India and the amendment brought in Sections 235(2) and 354(3) in the Cr.P.C. providing an opportunity of hearing with intent of pre-sentence hearing in a sentencing procedure. With the said observation it is 24 held by the Court that "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".
23. Thereafter the Court has further considered the issue with a touchstone that such provision is constitutionally valid in view of the Article 21 of the Constitution of India.
24. The Apex Court, after referring the various judgments and also considering the Stockholm Declaration dated December 11, 1977, in which the India has also accepted the International Covenant alongwith Civil and Political Rights adopted by the General Assembly of the United Nations and in the context of Section 354(3) of Cr.P.C. has observed that the Penal Code described death penalty as an alternative punishment only for heinous crime which are not more than seven in number. Section 354(3) Cr.P.C. 1973 in keeping with the interest of the International Covenant has further restricted the area of death penalty, however, said that the Indian Penal Laws excluding the impugned provisions and their application are entirely in accordance with the international commitment. Thereafter the Court observed that the death penalty being exceptional one and not to be said to be guided by unfettered power not valid constitutionally 25
25. In the said case, the Court has observed that deficiency pointed out by the Law Commission in 48 th report in the sentencing procedure has now been introduced by the Penal Law bringing Sections 354(3) and 235(2) of Cr.P.C. As per Section 354(3) when an offender is required to be punished with death or in the alternative with imprisonment of life or for a term of years, the judgment must assign the reasons for sentence so awarded and in case of a death sentence, special reasons must be assigned. The Court while dealing with the constitutionality of Section 354(3) has referred sub-Section (2) of Section 235 of Cr.P.C. and said that it does not contain a specific provision as to evidence and it merely provides hearing to the accused on sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or accused or by both, the judge should give the party or parties concerned an opportunity of producing the evidence on material relating to various factors bearing in mind on the question of sentence, though granting opportunity at the sentencing stage to lead evidence would not mean to deal or protract the trial as said in Santa Singh vs. State of Punjab reported in AIR 1976 SC 2386. The Court further referred the provision of Sections 432, 433 and 433 (A) of Cr.P.C. emphasizing the scope of commutation and remission given to the State Government clarifying that in a case where the accused has been dealt with an offence in which the death penalty may be offered even alternatively or in a case where the death penalty has 26 been commuted by the State Government as an imprisonment for life, the accused must serve at least minimum 14 years of the sentence while exercising such discretion by the State. The Court said that the expression 'special reasons' contemplated in sub- Section 3 of Section 354 Cr.P.C. obviously means the exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal, therefore, made it clear that on conviction of a murderer and other capital offence punishable in the alternative of death penalty under the Penal Code, the extreme penalty should be imposed only in the high stream cases. Thus, after considering the legislative policy delineated in Section 354(3) and 235(2) prepositions (iv)(a) and (v)(b) of the judgment of Jagmohan (supra) the Court in the case of Bachan Singh's (supra) has recast as to how the penalty should be imposed and observed as under:
"(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment.
The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for the offence of murder under Section 302 Penal Code; the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.
27The Court observed that the soundness or application of other proposition in Jagmohan Singh's case and the premises on which they rest, are not affected in any way by the legislative changes since made by the amendment in Section 354(3) of Cr.P.C. and said that the impugned provisions do not offend the Articles 14 and 21. Thus the Apex Court has propounded the theory of rarest of the rare cases.
26. So far as the question regarding standardization or to lay down the norms restricting the year of imposing the death penalty to a narrow category of murderer is concerned, the Apex Court has considered all the relevant aspects that includes the judgments of Fur-man vs. Georgia reported in 408 US 238/1992 US Lexis 169, Gregg v. Georgia reported in 428 US 153 (1976)/1976 US Lexis 82, Ediga Anamma vs. State of Andhra Pradesh reported in (1974) 4 SCC 443, Proffitt v. Florida reported in 428 U.S. 242 (1976) and other companion cases and after the judgment of Fur-man the statutory scheme prepared by the Georgia describing the aggravating and mitigating circumstances. Similarly after the judgment of Profit v. Florida (supra) and the circumstances prevailing in India, the Court emphasized on the issue of judicial discretion while awarding sentence and the duties of the judges which they exercised with care and caution and said that giving power to a judge varying from life imprisonment to death penalty cannot be standarized and such discretion ought to be exercised 28 by the judge on whom the discretion is conferred and such discretion is not unfettered but to be exercised judiciously. Thereafter, the Court described the aggravating and mitigating circumstances which may be a reason for the judge to arrive at a conclusion applying judicial discretion while pronouncing the sentence. The aggravating circumstances reported after considering the Penal Statute of USA, Fur-man, Georgia and the Indian Penal Code Amended Bill 1978, similarly the mitigating circumstances. As suggested by Dr. Chitale the circumstances are as under:-
Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if. the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
Mitigating circumstances:
29(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct."
Thereafter, it was observed that these are the relevant circumstances and must be given great weightage for the determination of the sentence with reason in the case of penalty of life, while in the case of death sentence special reason must be assigned affording opportunity.
27. In the case of Bachan Singh (supra) the Apex Court has made a tilt from the observation made in the judgment of Rajendra Prasad (supra) wherein the majority view with respect to 'special reasons' as stated was not related to the crime, but it should be related to the criminal. In this regard in Bachan Singh (supra) the Court observed as under:
"199. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) 30 and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the 'man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons"
can legitimately be said to exist.
And finally in para-207, the court held as under:
"207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 31 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
28. Later in the case of Machhi Singh & others vs. State of Punjab reported in (1983) 3 SCC 470, the Apex Court has crystallized the guidelines indicated in the case of Bachan Singh (supra) and said that in the facts of each individual case where the question of imposing the death sentence arises, the following propositions emerge from the said case:
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'.
(iii)Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature 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 the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
While referring the aggravating and mitigating circumstances the Court said that to exercise a 32 discretion by the court, certain questions must be in the mind of the court, which are required to be answered. Those questions posed are as under:-
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
The Court said that if upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. The Court further said that while closing the shutter of deterrent approach of sentencing in India, the small window of "award of death sentence" was left open in the category of "the rarest of rare cases". It is also said that normally the rule is awarding of "life sentence", imposition of death sentence being justified, only in the rarest of rare cases, when the option of awarding sentence of life imprisonment is unquestionably foreclosed.
29. In view of the foregoing discussion of the judgments of Jagmohan, Rajendra Prasad, Balwant Singh, Ediga Anamma and Bachan Singh (supra) we can safely observe that the death penalty was found intra-vires and constitutionally valid and it is not 33 violative of Article 14, 19, 21 and 38 of the Constitution of India. The Apex Court while declaring the death sentence as constitutionally valid made a twist towards the social justice taking it from deterrent to reformative theory of punishment. The court while recognizing the provision of sub-Section (3) of Section 354 as constitutionally valid said that the death penalty is an exception to the regular punishment and for which pre- sentence hearing that implicit recording of evidence for assigning the reasons showing mitigating and aggravating circumstances to penalize the criminal looking to the nature of crime.
30. In a celebrated case of Mukesh and another v. State (NCT of Delhi) and others reported in (2017) 6 SCC 1 the Apex Court in para-491 observed as under:-
"491. The principles laid down in Bachan Singh's case were considered in Machhi Singh and Ors. v. State of Punjab (1983) 3 SCC 470 and was summarised as under:-
"38. In this background the guidelines indicated in Bachan Singh's case (supra) 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):
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into 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 be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of 34 imprisonment for life cannot be conscientiously exercised having regard to the nature 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 the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
31. Thereafter, the Apex Court classified that 'Manner of commission of crime', 'Motive', 'Anti-social or socially abhorrent nature of the crime', 'Magnitude of crime', and 'Personality of victim of murder' may be relevant consideration for commission of offence in totality to decide as to what sentence may be awarded. In the said case, the Apex Court has recast the aggravating and mitigating circumstances looking to the catena of judicial pronouncements post Bachan Singh and Machhi Singh (supra), in the case of Ramnaresh (supra) and described as under:
"Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.35
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty Under Section 43 Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(9) When murder is committed for a motive which evidences total depravity and meanness. (10) When there is a cold-blooded murder without provocation.
(11) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in 36 fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused."
32. While imposing the penalty in the case of Mukesh (supra), the Apex Court analyzed the various cases of rape and murder wherein the death sentence was confirmed by the Court relying upon the judgment of Shankar Kisanrao Khade v. State of Maharashtra reported in (2013) 5 SCC 546 referring the reasons for confirming the death penalty in the above cases held as under:
"122. The principal reasons for confirming the death penalty in the above cases include:
(1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan v. State of U.P. (1991) 1 SCC 752, Dhananjoy Chatterjee v. State of W.B. (1994) 2 SCC 220, Laxman Naik v. State of Orissa (1994) 3 SCC 381, Kamta Tewari v. State of M.P. (1996) 6 SCC 250, Nirmal Singh v. State of Haryana (1999) 3 SCC 670, Jai Kumar v. State of M.P. (1999) 5 SCC 1, State of U.P. v. Satish (2005) 3 SCC 114, Bantu v. State of U.P. (2008) 11 SCC 113, Ankush Maruti Shinde v. State of Maharashtra (2009) 6 SCC 667, B.A. Umesh v. State of Karnataka (2011) 3 SCC 85, Mohd. Mannan v. State of Bihar (2011) 5 SCC 317 and Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37);
(2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community (Dhananjoy Chatterjee (1994) 2 SCC 220, 37 Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde (2009) 6 SCC 667 and Mohd. Mannan (2011) 5 SCC
317);
(3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar(1999) 5 SCC 1, B.A. Umesh (2011) 3 SCC 85 and Mohd. Mannan (2011) 5 SCC 317);
(4) the victims were defenceless (Dhananjoy Chatterjee (1994) 2 SCC 220, Laxman Naik (1994) 3 SCC 381, Kamta Tewari (1996) 6 SCC 250, Ankush Maruti Shinde (2009) 6 SCC 667, Mohd. Mannan (2011) 5 SCC 317 and Rajendra Pralhadrao Wasnik (2012) 4 SCC 37);
(5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee (1994) 2 SCC 220, Laxman Naik (1994) 3 SCC 381, Kamta Tewari (1996) 6 SCC 250, Nirmal Singh (1999) 3 SCC 670, Jai Kumar (1999) 5 SCC 1, Ankush Maruti Shinde (2009) 6 SCC 667, B.A. Umesh (2011) 3 SCC 85 and Mohd. Mannan (2011) 5 SCC 317) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu v. High Court of Karnataka (2007) 4 SCC 713, B.A. Umesh (2011) 3 SCC 85 and Rajendra Pralhadrao Wasnik (2012) 4 SCC 37)."
33. The Court referring para-106 of Shankar Kisanrao Khade (supra) has stated that the cases where the death penalty was converted into imprisonment for life in which some of the factors that weighed by the Court are as under:
"106. A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include:
(1) the young age of the accused [Amit v. State of Maharashtra (2003) 8 SCC 93 aged 20 years, Rahul v.
State of Maharashtra (2005) 10 SCC 322 aged 24 years, Santosh Kumar Singh v. State (2010) 9 SCC 747 aged 24 years, Rameshbhai Chandubhai Rathod (2) (2011) 2 SCC 764 aged 28 years and Amit v. State of U.P.(2012) 4 SCC 107 aged 28 years];
38(2) the possibility of reforming and rehabilitating the accused (in Santosh Kumar Singh (2010) 9 SCC 747 and Amit v. State of U.P.(2012) 4 SCC 107 the accused, incidentally, were young when they committed the crime);
(3) the accused had no prior criminal record (Nirmal Singh (1999) 3 SCC 670, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC 615, Amit v. State of Maharashtra (2003) 8 SCC 93, Surendra Pal Shivbalakpal (2005) 3 SCC 127, Rahul (2005) 10 SCC 322 and Amit v. State of U.P (2012) 4 SCC 107);
(4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh (1999) 3 SCC 670, Mohd. Chaman (2001) 2 SCC 28, Raju (2001) 9 SCC 50, Bantu (2001) 9 SCC 615, Surendra Pal Shivbalakpal (2005) 3 SCC 127, Rahul (2005) 10 SCC 322 and Amit v. State of U.P. (2012) 4 SCC 107).
(5) a few other reasons need to be mentioned such as the accused having been acquitted by one of the courts (State of T.N. v. Suresh (1998) 2 SCC 372, State of Maharashtra v. Suresh (2000) 1 SCC 471, State of Maharashtra v. Bharat Fakira Dhiwar (2002) 1 SCC 622, State of Maharashtra v. Mansingh (2005) 3 SCC 131 and Santosh Kumar Singh (2010) 9 SCC 747); (6) the crime was not premeditated (Kumudi Lal v. State of U.P. (1999) 4 SCC 108, Akhtar v. State of U.P. (1999) 6 SCC 60, Raju v. State of Haryana (2001) 9 SCC 50 and Amrit Singh v. State of Punjab (2006) 12 SCC 79);
(7) the case was one of circumstantial evidence (Mansingh (2005) 3 SCC 131 and Bishnu Prasad Sinha (2007) 11 SCC 467)."
34. Recently in the case of Channulal Verma vs. State of Chhattisgarh reported in 2018 SCC Online SC 2570, the three judges Bench of the Apex Court has taken into consideration the judgments of Machhi Singh, Bachan Singh (supra) and other judgments particularly the case of Santosh Kumar Satishbhushan Bariyar (supra) and Shankar Kisanrao Khade and also considering the 262 nd Report 39 of the Law Commission of the year 2015, which is as under:
"Chapter -VII of Report No. 262 contains the Conclusions and Recommendations. To quote :-
"A. Conclusions 7.1.1 The death penalty does not serve the penological goal of deterrence any more than life imprisonment. Further, life imprisonment under Indian law means imprisonment for the whole of life subject to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment which range from 30-60 years.
7.1.2 Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of "an eye for an eye, tooth for a tooth" has no place in our constitutionally mediated criminal justice system. Capital punishment fails to achieve any constitutionally valid penological goals.
7.1.3 In focusing on death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention from other problems ailing the criminal justice system such as poor investigation, crime prevention and rights of victims of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in suitable cases. The voices of victims and witnesses are often silenced by threats and other coercive techniques employed by powerful accused persons. Hence it is essential that a witness protection scheme also be established. The need for police reforms for better and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis.
7.1.4 In the last decade, the Supreme Court has on numerous occasions expressed concern about arbitrary sentencing in death penalty cases. The Court has noted that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been 40 applied. In the Court's own words "extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle". The Court has also acknowledged erroneous imposition of the death sentence in contravention of Bachan Singh guidelines. Therefore, the constitutional regulation of capital punishment attempted in Bachan Singh has failed to prevent death sentences from being "arbitrarily and freakishly imposed".
7.1.5 There exists no principled method to remove such arbitrariness from capital sentencing. A rigid, standardization or categorization of offences which does not take into account the difference between cases is arbitrary in that it treats different cases on the same footing. Anything less categorical, like the Bachan Singh framework itself, has demonstrably and admittedly failed.
7.1.6 Numerous committee reports as well as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid are some of the problems besetting the system. Death penalty operates within this context and therefore suffers from the same structural and systemic impediments. The administration of capital punishment thus remains fallible and vulnerable to misapplication. The vagaries of the system also operate disproportionately against the socially and economically marginalized who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.
7.1.7 Clemency powers usually come into play after a judicial conviction and sentencing of an offender. In exercise of these clemency powers, the President and Governor are empowered to scrutinize the record of the case and differ with the judicial verdict on the point of guilt or sentence. Even when they do not so differ, they are empowered to exercise their clemency powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into account factors that are outside and beyond the judicial ken. They are also empowered to look at fresh evidence which was not placed before the courts. (Kehar Singh v. Union of India-(1989) 1 SCC 204 paras 7,10 & 16) Clemency powers, while exercisable 41 for a wide range of considerations and on protean occasions, also function as the final safeguard against possibility of judicial error or miscarriage of justice. This casts a heavy responsibility on those wielding this power and necessitates a full application of mind, scrutiny of judicial records, and wide-ranging inquiries in adjudicating a clemency petition, especially one from a prisoner under a judicially confirmed death sentence who is on the very verge of execution. Further, the Supreme Court in Shatrughan Chauhan v. Union of India- (2014) 3 SCC1 -paras 55-56) has recorded various relevant considerations which are gone into by the Home Ministry while deciding mercy petitions.
7.1.8 The exercise of mercy powers under Article 72 and 161 have failed in acting as the final safeguard against miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps and illegalities in how the executive confirms that retaining the death penalty is not a requirement for effectively responding to insurgency, terror or violent crime.
B. Recommendation 7.2.1 The Commission recommends that measures suggested in para 7.1.3 above, which include provisions for police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
7.2.2 The march of our own jurisprudence-- from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to rarest of rare cases - shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions between the state and the individual, prevailing standards of constitutional morality and human dignity, the Commission feels that time has come for India to move towards abolition of the death penalty.
7.2.3 Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism related offences and 42 waging war, will affect national security. However, given the concerns raised by the law makers, the commission does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.
7.2.4 The Commission accordingly recommends that the death penalty be abolished for all crimes other than terrorism related offences and waging war." (Emphasis supplied) In the said judgment, the crucial points discussed by the three Judges Bench are as under:
"52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that discussed in Shankar Kisan Rao Khade (supra) have to apply, while awarding death sentence are "crime test", "criminal test" and the "R-R test" and not the "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is "society- centric"
and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of 43 the people and not the will of the Judges." (Emphasis supplied)
35. It is relevant to note here that applying the ratio of Jagmohan Singh, Rajendra Prasad, Bachan Singh & Machhi Singh (supra), the Apex Court has awarded the death sentence and imprisonment for life. The Brief facts of the cases, reasons or special reasons to penalty of death or commutation accepting the aggravating and mitigating circumstances as discussed and the award of the sentence has been cataloged, which may be fruitful for reference to apply the ratio of the said judgments. In this regard, the description of those judgments may be find hereinbelow in a tabular form in two heads; (1) The cases in which the Apex Court affirmed the death sentence; and (2) The cases in which the death sentence is commuted to imprisonment for life, which are as under:-
Death Sentence Affirmed S.No. Details & Brief Facts of the Aggravating Mitigating case 1 (1991)3 SCC 471 (2J)-Sevaka i. Innocent boys i. Appellant Perumal & another vs. State victim. young man.
of Tamil Nadu ii. Conspiracy to
entice boys from ii. Bread winner
Offence- u/s 302/34 and affluent of the family.
Section 364, 392, 120-B read families.
with Section 397 IPC. iii. Dead body could not be The accused were indulged in identified. illegal business of purchase iv. Four and sale of Ganja. They murders in a conspired to entice innocent span of 5 years boys from affluent families, committed for took them to far flung places gain in cold where the dead body could not clouded, be identified. Letters were premeditated written to the parents and planned purporting to be by the way.
44deceased to delude the v. Depravity & parents that the missing boys hardened would one day come home criminality. alive and that they would not vi. No regards give any report to the police for precious and the crime would go lives of innocent undetected. Four murders in a young boy.
span of five years were vii. Crime of
committed for gain in cold murder for gain
clouded, premeditated and as a means of
planned way. One of the living.
deceased was the nephew
(elder sister's son) of the first accused.
* Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats.
2 (1994) 2 SCC 220 (2J) - 1. Atrocity of 1. Age 27 years.
Dhananjoy Chatterji @ the crime.
Dhana vs. State of West 2. Concern for Bengal. 2. Conduct of dignity of the criminal. human life is Offence-u/s 302, 376 & 380 required to be IPC. 3. Defenceless kept in mind by and without any the courts while The accused was one of the provocation. considering the security guard deputed to confirmation of guard the building Anand 4. Unprotected sentence of Apartment. The deceased, a state of victim. death. young girl of 18 years of age, complained to her mother that 5. Faith of the accused had been teasing society shaken. her on her way to and back from the school. On the 6. Barbaric rape complaint by the father of the and murder.
deceased, the accused was transferred and another security guard was posted in his place. The accused went to the flat of the deceased at about 5.00 pm when she was all alone in her flat and committed rape and murder of the deceased.
3 (1994) 3 SCC 381 (2J)- i. Accused uncle Laxman Naik vs. State of of the deceased Orissa. and occupied status of Offence-u/s 376 & 302 IPC. guardian.
45The accused alongwith his ii.Victim 7 years mother and her seven years' old, unmindful old grand daughter i.e. niece of the of the accused had gone to a preplanned, neighbouring village to take unholy designs part in a funeral ceremony. In of the accused. the afternoon, when all the iii.Victim was a relatives assembled for the totally helpless ceremony and were busy in child, no one to the observance of the protect her in ceremony, the accused the desert.
commanded the deceased, his seven years' old niece to iv. Misused the accompany him back to their confidence to village and the deceased fulfill the lust. followed him in obedience to v. Preplanned to his command. He sexually commit by assaulted and murdered her, resorting to and her dead body was found diabolic lying in jungle with serious methods. bleeding, injury in her private Calculated, part and her clothes found cold-blooded smeared with blood. and brutal murder of girl of tender age.
4 (1999) 5 SCC 1 (3J)- Jai i. Cold blooded i. Age of
Kumar vs. State of M.P. murder of 2 accused 22
who were in years.
Offence - u/s 302 IPC. hapless and Possibility of
helpless Reformation
The accused entered the situation house of his brother and without bolted from outside the provocation.
mother's room and thereafter ii. Calculated removed certain bricks from Ghastly and the wall and Choukat. Thus Cruel murder.
facilitating the entry into the room where the deceased iii. Sent shock sister -in-law was sleeping waves in the with the child, the accused society. committed the murder of his iv. Create sister-in-law at about 11.00 feeling of revolt pm by parsul-blows and then in the kulhari blows on her neck conscience. severing her head from the body and taking away her v. Subsequent eight years' old daughter and disposal of the killing her in a jungle by axe- bodies. Living blows said to be by offering danger in the sacrifice to Mahua Maharaj gruesome act and buried her in the sand 46 covered with stone and thereafter came back home and carried the body of his deceased sister-in-law tied in a cloth to the jungle and hung the head tied on a branch with the hair and put the body on the trunk of the Mahua Tree .
5 (2004) 2 SCC 338 (2J) - i. No basic Sushil Murmu vs. State of humanness. Jharkhand ii. Lacks the Psyche or mind Offence-u/s 302 IPC.
set which can be amenable for Human Sacrifice of Child 9 any years old for prosperity of reformation.
accused. The recovery of the dead body was at the behest iii. Accused had of the accused, the severed a child of same head was recovered from the age as of the bag thrown in the pond. victim , yet he diabolically designed in a most dastardly and revolting manner to sacrifice hapless and helpless child of another.
iv. Brutality of
act is amplified
by the
grotesque and
revolting
manner in
which the
helpless child's
head was
severed.
v. Carried head
in a Gunny bag
and threw in
the pond, shows
diabolic act,
cruel in
execution.
Planned and
deliberate act.
47
6 (2005) 3 SCC 114 (2J)-State Relying on
of U.P vs Satish Principals laid
Offence- u/s 363, 366, down in Bachan
Singh's case
376(2), 302 & 201 I.P.C
and Machhi
Singh's case
On 16.8.2001 the victim who one of the
was studying in Sarvodaya Rarest of Rare. Public School had gone to school and did not return at the usual time. On the next morning, her dead body was found in the sugarcane field of one Mulchand around 6.00 am. She was lying in a dead condition and blood was oozing from her private part and there were marks of pressing of her neck. The victim who was not even six years old lost her life on account of bestial act of the accused who raped her and thereafter murdered her.
7 2005) 3 SCC 793 (2J) i. Cold blooded Holiram Bordoloi vs State of murder.
Assam. ii. Accused
Offence- U/S - 147, 148, 436, leading the
326 & 302/149 I.P.C gang.
iii. Victims did
On the date of incident in not provoke or question, the deceased was contribute to present at his house the incident.
alongwith his wife, three iv. 2 victims children aged six years, eight were burnt to years and sixteen years. The death by accused and the other locking the accused persons who were house from armed with lathi, Dao, Jathi, outside.
Jong and various other
v. One of the
weapons, came to the house of
victim was a 6
the deceased and started
year old boy,
pelting stones on the bamboo
who, somehow,
wall of the said house.
managed to
Thereafter, they closed the
come out of the
door from outside and set the
burning house,
house on fire. The son and
but he was
one daughter and wife
mercilessly
managed to come out from the
thrown back to
house. The accused and
the fire by
48
another accused caught hold accused.
of him and threw him into the vi. Dragging of
fire again. The deceased family one of the
was completely burnt and died victim by the
on the spot. Thereafter, the accused to his
elder brother who was staying house and then
in another house at some cutting him into
distance of the house, was pieces in broad
caught and dragged to the day light, in the
courtyard of the accused, presence
where the accused cut him bystanders.
into pieces.
vii. The entire
incident took
place in the
broad daylight
and the crime
was committed
in the most
barbaric
manner to deter
others from
challenging the
supremacy of
the accused in
the village.
viii. Entire
incident was
preplanned.
Accused when
questioned
under section
235(2) Cr.P.C
on sentence did
not say
anything,
silence shows
he has no
repentance for
the ghastly act
committed.
8 (2007) 3 SCC 1 (2J) i. Murder
Ram Singh vs Sonia & committed in
diabolic
others
manner.
Offence u/s - 354(3), 366,
ii. Without any
368, 302 I.P.C
provocation.
iii. Cold blooded
The accused alongwith her
and
husband murdered her step-
premeditated.
49
brother and his family, which iv. Helpless
included 3 tiny tots aged 45 victims.
days, 2 and half year and 4 v. Not
years, as also murdered her possessed with
own father, mother and sister basic
in a very diabolic manner so humanness as
as to deprive her father from the act is
giving property to her brutal,
stepbrother and his family. grotesque and
in revolting
manner.
vi. Completely
lacks the
psyche or
mindset which
can amenable
for any
reformation.
9 (2007) 4 SCC 713 1. Rarest of
Shivu & Another vs Rare Case
Registrar General, High following
Court of Karnataka & guidelines of
another Bachan Singh &
Machhi Singh
Offence-U/S- 302/34 &
376/34 I.P.C 2. Earlier 2
instances of
Rape Recorded.
Accused aged about 20 and
22 years respectively were
sexually obsessed youngsters,
who prior to the alleged
incident had attempted to
rape two girls of same village,
only Panchayat of village
elders was called on each
occasion and the accused
were admonished.
Emboldened they committed
rape on the deceased, a young
girl of 18 years and to avoid
detection, committed heinous
and brutal act of her murder.
10 (2008) 4 SCC 434 i. Brutality in
Prajeet Kumar Singh vs murder as
State of Bihar several incised
wounds.
Offence u/s- 302 I.P.C
ii. Victims were
helpless and
50
The accused was living in the had no weapon.
house where he was taking iii. Accused was
his meals for which he was living as P.G
paying Rs.500/- per month. from 4 years,
For the last several months, the act was
he had not paid the amount preplanned.
and owed Rs.4000/-
altogether as rent for the iv. Act was
house and for food to the diabolic of the
informant for which the Superlative
informant was making degree in
demand regularly. The day conception and
before the incident, the Cruel in
accused came back at 3.00 execution and
pm. After having dinner, when does not fall
the informant asked the witin any
accused for the dues, the comprehension
accused told him that he of the basic
should accompany him to his humanness
home where he would be paid which indicates
his money. Thereafter, the the mindset and
informant and his wife went to cannot be said
sleep in their room which was to be amenable
on the third floor of the house to any
and the accused also went to reformation
sleep in the adjoining room on
the third floor. All the children of the informant were sleeping on the second floor. The accused picked up dab (dagger like weapon) from the house, and murdered the son of informant about 16 years, daughter about 15 years and niece about 8 years and caused injuries to the informant and his wife.
11 (2008) 7 SCC 561- Mohan 1. Serial Rapist Anna Chavan vs State of
2. Rarest of Maharashtra Rare Case Offence u/s - 302, 363, 376, following 201 I.P.C guidelines of Two young girl aged five years Bachan Singh & and ten years were sexually Machhi Singh assaulted and murdered. The appellant was serial rapist, convicted for kidnapping and raping a minor girl, again convicted for raping a girl less than nine years.
5112 2008) 11 SCC 113 (2J) 1. The serious Bantu vs State of Uttar kind of rape.
Pradesh
2. Planned Offence u/s- 364, 376 & 302 manner.
I.P.C There was Devi Jagran in
3. Merciless in village, in the eventful night. A insertion of number of person of the wooden stick locality had assembled there.
causing death.
The informant, alongwith his brother and niece (deceased) had also gone there. Around 9.00 pm the accused, a neighbour of the informant reached there, and after exhibiting playful and friendly gesture with the deceased with whom he was familiar before because of neighbourhood, enticed her away on the pretext of giving her a balloon. The deceased aged six years was raped and murdered. The villagers saw the accused thrusting a stem/stick in the vagina of the deceased. The accused was caught red handed in completely naked state by the villagers and the deceased was lying on the ground with injuries over face, head and neck. A wooden stick of 33 cms was found inside the vagina, the total stick was 57 cms x 0.8 cms in diameters.
The uterus was ruptured,
perforated intestines and
pressure marks were present
on the stick.
* In operating
the sentencing
system, law
should adopt
the corrective
machinery or
the deterrence
based on
factual matrix.
By deft
modulation
52
sentencing
process be stern
where it should
be, and
tempered with
mercy where it
warrants to be.
13 (2009) 6 SCC 667 (2J) - i. Murder were Ankush Maruti Shinde & not only cruel, others vs State of brutal but were Maharashtra. diabolic.
Offence-u/s 397 read with ii. Rape and Section 395 and 396, Section murdered one 307 read with Section 34 and victim of 15 Section 376 of IPC. years.
iii. Incident is The accused entered the extremely house of the victim at about revolting and 10.30 pm demanding money shocking to and valuable from them. The conscience of accused also snatched community.
ornaments worn by the family iv. Defenceless members. Thereafter, they attack without went out of the hut and provocation and consumed liquor. After some no animosity.
time, they re-entered the hut armed, started assaulting the family members and tied hands and legs of all. Three of accused then dragged a young girl aged 15 years out of the hut to guava garden, gang raped her. She was brought back dead in naked condition with injuries on her body. The other girl was also dragged towards the well and raped by one. She was brought back seriously injured. In the occurrence, five persons were murdered and two raped.
14 (2010) 9 SCC 567-C. i. Offence had Muniappan & others vs been committed State of Tamilnadu after previous with planning and extreme D.K. Rajendran & anothers brutality. vs State of Tamilnadu ii. Murder of Offence - U/S- 302 I.P.C helpless and unarmed young 53 In a public demonstration girl students in against a court verdict, the a totally accused became violent, unprovoked violated prohibitory order and situation. prevented the free flow of iii. This activity traffic and caused nuisance to is inhuman of general public at large. The the highest accused were involved in two degree. incidents. In the first incident, the accused burnt and iv. Commission damaged several buses. In the of an offence is second incident burnt a bus extremely carrying college girls where brutal, three girls were burnt to death diabolical, and twenty were severely grotesque and injured. cruel.
v. Shocking to
the collective
conscience of
the society.
15 (2010) 10 SCC 611 i. Murder i. Age of
Sunder Singh vs State of committed in a accused.
Uttranchal cruel, grotesque ii. Rash act,
and diabolic
Offence-U/S- 302, 307, 436 manner. without
I.P.C intention.
ii. Poured Petrol
In this ghastly incident five in the room set iii. Remaining
persons of the same family it to fire and under shadow
were roasted alive and died closed the room of death since
either on the spot or while also. 2004 till 2010.
being taken to the hospital or
in the hospital, and one iii. Premeditated suffered the burn injuries. and cold-
blooded mind,
as had carried
petrol to his
own cousins
house.
iv.Agony caused
by dying
witnesses
because of their
burn injuries
would be
enormous.
v. No immediate
provocation
though enmity
of family land
was going on.
54
vi. Deceased
were without
arms and
helpless.
16 (2011) 5 SCC 317- Rarest of Rare
Mohd. Mannan @ Abdul Case
Mannan vs State of Bihar i. Age of
Offence-U/S- 302, 376, 366 & accused, a
201 I.P.C matured man.
The accused was working as a ii. Misused the
mason and engaged for the Trust in a
plaster work at the residence calculated and
of informant's uncle. The pre-planned
accused gave two rupees to manner.
the niece of the informant iii. Girl aged 7
aged about eight years to years, innocent
bring betel from the shop. and did no
After some time, the accused provocation for
left the work, went to the shop murder and was and got seated the victim on helpless and the carrier of his bicycle, defenceless.
thereafter raped and
iv. Act extreme
murdered her. The deceased
indignation of
had injuries on the private
the community
part, her nails were munched
and shocked
and there were marks of
the collective
bruises all over the body.
conscience of
the society.
v. Accused is a
menace to the
society and
shall continue
to be so and
cannot be
reformed.
17 (2012) 4 SCC 37 Rarest of Rare
Rajendra Pralhadro Wasnik Test
vs State of Maharashtra.
i. Took
Offence- U/S - 302, 376(2)(f) advantage of
& 377 I.P.C the familiarity
with the family
The accused came to the under false
house of the victim at about name.
4.00 pm and after having tea ii. Belied the he left. Thereafter, again he human came to the house at about relationship of 6.30 pm and took the victim Trust and 55 to get her biscuit. The victim Worthiness.
aged three years was raped iii. Crime is
and brutally murdered. brutal and
inhuman; all
her private
parts swollen
and bleeding.
Bleeding
through nose
and mouth,
bites on chest.
The pain and
agony of the
deceased minor
girl is beyond
imagination and
is the limit of
viciousness.
iv. Left the
deceased in
badly condition
without clothes,
this is the
abusive facet of
human
conduct.
18 (2013) 3 SCC 215 (2J) i. Found guilty
Sunder @ Sundarajan vs of offence U/S - State by Inspector of Police 364-AIPC. Offence-U/S - 364-A, 302, ii. Guilty of 201 I.P.C offence U/S-
302 I.P.C.
The accused was waiting on a motorcycle near the school Iii. Child of 7 van of the victim, he told the years.
victim that his mother had iv. No value for instructed him to bring the human life, as victim to the hospital since his the child was mother and grand mother killed for non- were not well. Thereafter, the fulfillment of family members received a call ransom on the mobile phone, demand.
demanding ransom of Rs.5
v. Extreme
lakhs for the release of their
mental
son. The accused strangulated
perversion not
the victim for ransom, put his
worthy of
body in a gunny bag and
human
threw it in the tank.
conditions.
vi. Traits of
outrageous
56
criminality.
vii. Well thought
and planned
manner.
viii.Acquaintanc
echoice of
kidnapping
male child,
planned and
consciously
motivated.
19 (2013) 10 SCC 421 i. Time, place, i. Young age.
Deepak Rai vs State of Bihar manner of and ii. Army
the motive
Offence U/S - 120-B, 148, background.
behind
302 Read With Section 149, commission of iii. Custodial
307 Read With 149, 326, 429, crime speaks behavior.
436 & 452 I.P.C loud of Lack of
premeditated Criminal
The accused came to and callous Antecedents.
informant's house at 1.00 am, nature of
overpowered the husband of offence.
the deceased (sleeping in the ii. Ruthlessness
veranda) and on the and brutal
instruction of the accused, murder by
locked the door of the room burning young
where the wife and their five children and
children aged 3 to 12 years lady alive to
were sleeping and set the avenge their
house on fire after trapping cause.
them. When the informant
attempted to save himself, iii. The threat
they fired at him but he the incident had
manged to escape. The motive instilled
for the act was that the amongst the
informant had not withdrawn villagers, as no
FIR against the accused for one deposed
theft of his buffalo. against the
accused.
iv. Extremely
revolting and
shocks the
collective
conscience of
the community.
v. Cold-blooded
murder in a
preordained
fashion without
provocation.
57
20 (2015) 1 SCC 67- Mofil khan i. Menace, i. No criminal
and another vs State of threat and anti- antecedents.
Jharkhand. theatrical to ii. Middle aged
U/S - 302/449 Read With harmony in the having
Section 34 society. dependant who
At about 8.30 pm the ii. No would be
deceased was offering Namaz provocation. devastated.
in the mosque. The accused iii. Deliberately iii. Reformation and others, who were none preplanned possibility. other than the deceased's crime. Diabolic brothers and nephews murder.
approached him, started assaulting him with sharp edged weapon such as sword, Tangi, Bhujali and spade. The deceased succumbed to the injuries. The accused, proceeded towards the house of the deceased and assaulted the two unarmed brothers with the aforesaid weapons due to which the two brothers collapsed and died. Thereafter the accused committed murder of the wife of the deceased and his four sons aged between 5 to 12 years.
21 (2015) 6 SCC 632 (3J) - i. Murder of Young age.
Shabnam vs State of U.P own kith and
Accused was
Offence U/S - 302/34 I.P.C kin.
pregnant and
The accused daughter ii. Extreme now has a
involved in relationship with brutal, minor child.
the other accused, driven by calculated and opposition to their alliance diabolic nature from the deceased family and of crime. alive to conception of their iii. Little illegitimate child and to secure likelihood of entire family property had reform and hatched, depraved plan to first abstaining from administer the family sedative future crime.
mixed in tea prepared by the
iv. Motive for
accused daughter and
commission.
thereafter bleeding them to
death by slitting vital blood v. Manner of vessels in their throats. execution. Murdered seven innocent vi. Magnitude of persons and did not even crime.
spare ten months old infant, so as to leave no survivor for vii. Remorseless claiming share in family attitude.
58property in future.
22 (2015) 6 SCC 652 (3J) i. No i. Age.
Purshottam Dasrath Borate provocation. Lack of and another vs State of ii. Meticulously Criminal Maharashtra executed a antecedents. Offence U/S - 302, 376 (2)(g), deliberate, cold 364, 404 Read With Section blooded and 120-B I.P.C. preplanned crime.
The deceased was serving as an associate in a company for iii. Scant regard about a year, where she used to the to work in the night shift i.e. consequences. from 11.00 pm to 9.00 am. iv. Sheer The company had arranged for brutality and and hired a private cab service apathy for to transport its employees human.
from their residence to work v. Menace to place. Further, to ensure the society.
safety and security of its
female employees, the vi. Impact of
company imposed a crime on
mandatory condition upon the community and owner of the cab that a particularly security guard be present. On women in night the fateful day the cab was shifts.
deputed to pickup the Helpless young deceased from her residence woman who had at 10.30 pm. The driver of the reposed trust.
cab and the security guard
took the deceased to a jungle
area and committed gang rape
with the deceased and
thereafter murdered her by
means of strangulating her
with her own Odhani, slashing
her wrist with a blade and
smashing her head with a
stone, tripped the deceased of
her possession and money
and left her body in the field.
23 (2017) 4 SCC 124 (3J) i. Strangulation i. Accused aged
B.A. Umesh Vs. Registrar of defenseless 30 years.
General, High Court of woman after ii. Left seven
Karnataka raping her years child
violently.
Offence:u/s- 376, 302 & 392 unharmed.
of IPC ii. In addition, iii. Murder was
committed
The accused raped, murdered robbery. not per-
and committed robbery. The meditated.
victim, a widow lady was iii. Accused an iv. Previous
59
subjected to brutal rape and ex-police history not of
murder. official, not an rape & murder.
illiterate v. Case of
villager. circumstantial
iv. Criminal evidence.
history of 21 vi. One H.C.
cases. Judge opined
v. Emboldened life
committed two imprisonment.
more robbery.
vi. Fled from
lawful custody
twice, no
chance of
reformation.
24 (2017) 6 SCC 1 (3J) i. Family
Mukesh & another vs State circumstances
(NCT of Delhi) such as poverty
and rural
U/S - 365, 366, 376 (2)(g), background.
377, 201, 395, 397, 412,
302/120-B I.P.C ii. Young age.
iii. Age of
Gang rape of a girl and parents, ill-
murder of two inside moving health of family
bus and prosecutrix assaulted members and
with hands, iron rods and their
kicks. Forced for oral sex. responsibilities.
Entire intestine of prosecutrix iv. Absence of
perforated and splayed open criminal
due to repeated insertion of antecedents.
iron rods and hands
v. Conduct in
repeatedly. Pulled out her
jail.
internal organs and threw the
deceased in naked state from vi. Likelihood of
the moving bus. The friend of reformation.
the deceased was also beaten
up and thrown out of the bus.
25 Cr.A. No. 1433-1434/2014 - I. Six innocent
Khushwinder Singh Vs. persons killed.
State of Punjab. ii. Pre-planned
Offence: u/s 302 of IPC. manner.
Accused stolen Iii. Death in a
Rs.36,70,000/- after diabolic and
administering pills to six dastardly
victims and threw them in the manner.
canal. iv. Extreme
brutality.
60
v. Collective
conscious of
society shocked.
vi. Eyewitness
account.
Death Sentence Commuted to Life Imprisonment S.No. Details & Brief Aggravating Mitigating Facts of the case 1 (1994) 4 SCC 353 - 1. Ten murders Specter of death Jashubha Bharat Singh taken place in hanging over head Gohil vs. State of Gujrat. broad day light. of the accused for
2. Conscious of more than six Offence- u/s 302 IPC the state shaken. years.
3. The manner in 12 persons tried for which the committing murder of ten murders were persons and causing committed injuries to others. Trial exposed its Court convicted the accused gravity. for life imprisonment and 4. Unarmed and High Court enhanced the innocent punishment to death persons, sentence. Supreme Court returning after commuted to Life offering Imprisonment. condolence.
Special reasons to be assigned u/s 354(3) Cr.P.C..
2 (1999) 3 SCC 19 - Om i. Gruesome act. *Noticing the Prakash Vs. State of mentally depressed Haryana ii. Premeditated condition, caused and well though by constant Offence- u/s 302/34 IPC murder. harassment and and Section 25 of the Arms dispute. Act. Held not rarest of The accused, who were the rare case, as this is neighbours of the deceased, not a crime entered into the house from committed because the rear door and fired at of lust for wealth or the deceased and his family woman; such as members to take revenge extortion, decoity regarding the plot in dispute or robbery nor even and dread anybody to for lust and rape, it confront them at the risk of is not an act of anti elimination. 7 persons social element, murdered . kidnapping and trafficking a minor girl or dealing in 61 dangerous drugs which affects the entire moral fibers of the society and kills a number of persons, nor it is a crime committed for power or critical ambitions or part of organized criminal activities. 3 (2001) 2 SCC 28 - Mohd. i. Age of victim 1 i. No criminal Chaman vs. State (NCT of ½ years. antecedents. Delhi) ii. Prey to lust of ii. No possibility of 30 years old man continued threat to u/s 376, 302 of the IPC. in a preplanned the society or such; way. a dangerous person The father of the victim was iii. Killed in most that to spare his running a tailoring factory revolting manner life will endanger near his house. The arousing intense the community. accused was residing in the and extreme same house in a room indignation of
adjacent to the room of the the community. victim's parents. The iv. An act of accused sexually assaulted extreme the victim aged 1 ½ years depravity and bitten over the cheek, arouses a sense injuries in vaginal wall, liver of revolution in lacerated with vertical deep the mind of laceration, in the adjacent common man. room from where the v. Menace to the mother of the victim picked society as it is a up the victim in an calculated and unconscious state, who was cold-blooded declared dead by the murder.
Doctor.
4 (2002) 3 SCC 76 - Lehna 1. The injuries (i). No evidence of vs. State of Haryana sustained by the any diabolic accused were of planning to commit Offence: u/s 302, 458, 324 very serious the crime.
IPC. nature. (ii) Deprived of the The father of deceased and 2. Three persons livelihood on accused had given 2 acres of the same account of the land of land to the accused for family died, who being taken away. the purpose of cultivation were his own but the accused who was a kith and kins. (iii) Frequency of person of bad habits tried to quarrels indicates alienate the land that was lack of any sinister given to him by his father. planning to take There was constant quarrel away lives. 62 between the family over the ancestral land and the (iv) The factual accused assaulted the scenario gives deceased and the family impression of members and three persons impulsive act and of the same family died. not planned assault. 5 (2002) 9 SCC 168 - i. Meticulously i. Quarrels and Vashram NarshiBhai planned. continuous Rajpara vs. State of harassment. Gujrat. ii. Brutal & a ii. Constant gruesome act. nagging well Offence: 302 and 201 IPC. affected the mental balance and such The accused, a fruit vendor sustained purchased a house and provocation. started living in the house iii. No criminal with his family consisting of background and his wife, four daughters and not menace to the a son aged 5 years. The society. wife and the daughter of the accused did not like the iv. Mentally house and started depressed pressurizing him to sell and condition of the purchase another house. accused. The accused purchased 5 litres of petrol in plastic can and kept in the kitchen. The accused and his son slept on the terrace of the house and other members slept in the rear room on the ground floor. At about 3.00 am, the accused sprinkled the petrol on his wife and daughters and set them on fire, thereafter, the accused ran away from the room by closing the door from outside. Brutal and cold blooded murder of his wife and four daughters by setting them on fire. 6 (2003) 7 SCC 141 - Ram i. 21 persons i. Incident was a Pal Vs. State of U.P. murdered by sequel of murder of gunshot injuries close relative of Offence: 302, 307, 436, or by burning in accused by the 440/149 of IPC. latched houses. victims family. ii. Young ii. Sufficient 63 The victim's family was children were provocation. accused of having victims. iii. Spent 17 years committed the murder of in custody after the two of the close relatives of incident. the accused family, who in turn murdered 21 persons including young children by gunshot injury or burning them in latched houses.
Balance sheet of the aggravating and mitigating circumstances has to be drawn up and further to accord full weightage to the mitigating circumstances and then to strike a balance between the aggravating and mitigating circumstances before the option is exercised.
7 (2008) 13 SCC 767 - i. Planned and Standardisation of Swamy Shraddanand @ cold-blooded sentence process Murli Manohar Mishra vs. murder. impossible and State of Karnataka. tends to sacrifice ii. Motive behind justice at the altar Offence u/s: 302, 201 IPC. the crime. of uniformity.
The accused married the deceased who came from a highly reputed and wealthy background. She was the grand daughter of a former Deewan of the Princely State of Mysore and held vast and very valuable landed properties in her own right. The accused murdered his wife after giving heavy dose of sleeping pills and put her in a wooden box when she was alive, dug a pit, filled with earth and cemented the surface and covered with stone slab.
8 (2009) 6 SCC 498 - i. Manner and i. Deceased was Santosh Kumar Satish method of friend not enemy of Bariyar vs. State of disposal of the accused.
Maharashtra body of deceased ii. Motive to collect
was abhorrent. money.
Offence: u/s 302 IPC ii. Most foul and iii. Age of accused.
despicable case iv. No criminal
The accused, who were the of murder. history.
friends of the victim, v. Not professional
hatched a conspiracy to killer.
abduct the victim for a vi. All unemployed
64
ransom of Rs.10 lakhs from and searching jobs.
the victim's family. vii. Reformation
The accused called the and rehabilitation.
victim to see a movie and
after seeing the movie a
ransom call for a demand of
Rs. 10 lakhs was made but
with fear of being caught,
they murdered the victim,
cut the body into pieces and
disposed it off at different
places.
*Doctrine of Rehabilitation and weightage of mitigating circumstances.
*Doctrine of Prudence in case of circumstantial evidence.
9 (2010) 9 SCC 747 - i. Accused i. Case of Santosh Kumar Singh vs. belongs to a circumstantial State through CBI category with evidence.
unlimited power ii. Age of accused Offence u/s: 302 & 376 or pelf or even 24/25 years.
IPC. more iii. Motive and dangerously, a murder had been
Deceased student of LLB 6 volatile th and proceeded by Semester was being heady cocktail of continuous harassed and intimidated the two. harassment by the by the accused deceased over two continuously, thereupon, years.
the deceased made several
complaints against the
accused in different Police
stations. On day of incident
the deceased returned to
her residence, where she
was sexually assaulted and
murdered by the accused.
There were 19 injuries on
the body, but no internal
injury on private parts.
10 (2011) 3 SCC 685- Ramesh i. Murder of i. Accused not from
& others v. State of gains. wealthy
Rajasthan ii. Criminal background.
record. ii. Motive was
Offence u/s: 302, 392, iii. Ramesh/ money.
120-B, 201, 404, 414, 457 appellant iii. Circumstantial
& 460/34 IPC inflicted injuries evidence.
on both the iv. Reformation and
Accused Gordhanlal deceased. Rehabilitation.
conspired with other v. Languishing in
65
accused persons trespassed Death Cell for more
into the house of deceased than six years.
Ramlal by night and looted
ornaments of gold and silver
and murdered 2 persons.
11 (2011) 7 SCC 437 - State i. Brutal and i. 2nd marriage of
of Maharashtra vs. diabolic killing of father.
Goraksha Ambaju Adsul. 3 innocent family
ii Continuous
members.
Offence: u/s- 302, 201 of quarrels for
IPC ii. Manner in division of
which crime property.
The accused who was committed is iii. Increase of
serving in the Indian Army, deplorable. pressure with
used to demand partition of passage of time and
land and other property for frustration.
him and his brother from iv. Intensity of
his father. He and his bitterness between
brother murdered their members of family
father and 2 family had exacerbated
members. The deceased thought of revenge
were administered and retaliation.
poisonous substance in v. Continuous
pedas then strangulated nagging.
with shoe laces and placed
bodies in 2 trunks and left
them in the train, which
were found by the Station
Master next day.
12 (2012) 4 SCC 257- i. Crime has i. Age of all
Ramnaresh & others vs. been committed accused.
State of Chhattisgarh. brutally. ii. Since deceased
ii. Accused was mistress of
Offence: u/s- 449, 376(2)(g) Ranjeet being brother of accused
and 302/34 IPC. brother-in-law of Ranjeet, this may
deceased owed a have been matter of
One of the accused, duty to protect concern.
brother-in-law of the rather than iii. Possibility of
deceased, along with the sexual assault death of the
other accused entered the and murder deceased occurring
house of deceased when her alongwith his co-incidentally as a
husband was away and friends. result of act
committed rape and iii. Crime is committed on her,
murdered her. heinuous thus not caused
committed intentionally.
brutally. iv. Not criminals
iv. Helplessness nor incapable of
of a mother of being reformed
two infant at the cannot be terms
odd hour of night menace.
in absence of her
66
husband.
Doctorine of Proportionality - The principle of proportion between the crime and the punishment is the principle of 'Just Deserts' that serves the foundation of every criminal sentence that is justifiable.
13 (2012) 5 SCC 766 - Neel i. Nature of i. The accused can Kumar @ Anil Kumar vs. offence. be reformed or State of Haryana ii. Age of victim. rehabilitated.
iii. Relationship ii. Not a continuous Offence: u/s- 376(2)(f), 302 of victim with threat to society.
& 201 IPC. accused. iv. Gravity of
The accused, father of the injuries. deceased, raped his own daughter who was 4 years old and murdered her.
Cause of death was Asphyxia because of throttling which was antimortem in nature, lacerated wound was present in vagina extended from anus to urethral, opening admitting 4 fingers.
Underlined muscles and ligaments were exposed and anus was also torn and on dissection, uterus was perforated in the abdomen.
14 (2013) 2 SCC 452 - i. Body of Seema was Sangeet and another vs. burnt below the State of Haryana. waist with a view to destroy evidence of sexual assault.
Offence u/s-: 302, 307, ii. No evidence of 148, 449 r/w 149 IPC. being professional killers.
Due to the belief that the family of injured Amardeep had performed black magic leading to death of son of Ramphal, Ramphal & 5 other accused killed 3 adults and 1 child aged 3 years. The 3 adults had bullet injuries other injuries by sharp edged weapon "kukri'. Body of Seema was burnt below the waist and upper part of head of child 67 Rahul was blown off by firearm injury.
• This Court has not endrosed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any even, there is little or no uniformity in the application of this approach.
• Aggravating circumstances relate to the crime while mitigating circumstances relate to criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of mantra of aggravating and mitigating circumstances needs a review.
• In the sentence process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become Judge-centric sentencing rather than principled sentencing.
• The Constitution Bench of this Court has not encouraged standardisation and categorisation of crimes and even otherwise it is not possible to standardise and categorise all crimes. • The grant of remission is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in statute. These need to be faithfully enforced. • Emission can be granted under Section 432 Cr.P.C in the case of definite term of sentence. The power under this section is available only for granting "additional" remission., that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 CrPC can certainly be exercised but not on the basis of that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
• Before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case -by- case basis and not on in a wholesale manner.
15 (2013)(2) SCC 713 - Extremely brutal, i. Age of first
Gurvail Singh @ Gola and grotesque, accused was 34
another vs. State of diabolic. years and second
Punjab. was 22 years.
ii. Unblemished
Offence-: u/s 302/34 IPC antecedents.
iii. Property dispute
Accused and deceased were which culminated
member of same family and into death of four
there was dispute with persons.
regard to mutation of their iv Reformation and
shares in their names, since rehabilitation.
68
property was not mutated.
The accused persons armed
with Datar, Kirpan and
Toka assaulted 4 persons of
their family and murdered
them.
R-R Test-
1. Depends on the perception of the society and not Judge- centric.
2. Looks into various factors:
1. Society's abhorrence.
2. Extreme indignation and antipathy to certain types of crime, like rape and murder of minor girls, especially intellectually challenged minor girls, minor girls with physical disability, old and infirm women with disabilities.
16 (2013) 5 SCC 546 - i. Victim aged 11 i. Previous track Shankar Kisanrao Khade years, innocent, record of accused.
vs. State of Maharashtra. defenseless and ii. Other options having moderate are not Offence- u/s 363, 366A, intellectual unquestionably 376, 302, 201 IPC disability. foreclosed.
ii. The accused Gruesome murder of a was a fatherly minor girl, aged 11 years, figure of 52 with Intellectual Disability years, father of (moderate) after subjecting two children.
her to a series of acts of iii. Ghastly
rape by a middle aged, manner of
strangulated and murdered execution of
her. crime.
The cause of death was iv. Ruthless
Asphyxia due to crime as per rape
strangulation and clear was committed
evidence of carnal followed by
intercourse were there. murder.
v. The action of
the accused was
not only
inhuman but
also barbaric.
vi. Shocks not
only judicial
conscience but
the conscience of
the society.
vii. Considering
the age of
accused
reformation or
69
rehabilitation is
practically ruled
out.
17 (2014) 4 SCC 69-Anil @ i. Offence u/s i. No previous
Anthony Arikswamy 377 proved. criminal history.
Joseph vs. State of ii. Murder was ii. Possibility of
Maharashtra. committed in an reformation or
extremely brutal, rehabilitation at
Offence- u/s 302, 377, 201 grotesque, the age of 42 years
IPC. diabolical and cannot be ruled
dastardly out.
Gruesome murder of a manner.
minor boy, aged 10 years, iii. Victim and who was staying with him innocent boy and from few days, after only son of his subjecting to carnal mother.
intercourse and then iv. Accused was strangulating him to death. in a dominating position.
v. Life taken
away in a
gruesome and
barbaric manner,
pricked not only
the judicial
conscience but
also the
conscience of the
society.
18 (2014) 5 SCC 353-Raj i. Heinous crime. Accused aged 32
Kumar vs. State of M.P. ii. Innocent, years.
defenseless and
Offence: u/s 376, 450, 302 helpless minor
IPC girl.
iii. Relationship
The accused was the of accused with
neighbor of the deceased family of
and used to call him deceased.
'Mama'. On the said night iv. Shocked the the accused had taken conscience of liquor and meals in the society.
house of the deceased and around midnight he raped the deceased aged 14 years and murdered her. The hymen of the deceased was torn and blood was oozing out from her private parts, some blood was also present in the cavity of her uterus.
7019 (2016) 9 SCC 675- Tattu i. Brutality. Accused was about Lodhi @ Pancham Lodhi ii. Helplessness 27 years and there vs. State of M.P. of victim. was no material to iii. Unprovoked negate the chance Offence: u/s 366A, 364, and of accused being 376(2)(f)/511, 201 IPC. premeditated reformed and design to attack. gaining maturity.
The accused asked the
victim to purchase and
bring gutka for him,
thereafter Kidnapped and
committed rape of a minor
girl, aged 7 year. The
deceased put the dead body
in a gunny bag and locked
it in his house, with a view
for destruction of evidence
relating to the crime. The
victim was throttled to
death.
20 (2017) 4 SCC 393 - i. Young age of
Sunil vs. State of M.P. accused.
ii. Can be reformed
Accused, 25 years old taken and rehabilitated.
his niece (victim) aged 4 iii. Probability of
years on pretext of taking not committing
her to the parents and similar crime.
raped her and murdered iv. Not a threat to
her. society.
21 2018 SCC Online SC 2570 i. Murder of 3 i. No evidence as to
- Chhannu Lal Verma vs. persons. the uncommon
State of Chhattisgarh. ii. Two of the nature of the
deceased and offence or the
Offence - u/s 302, 307, one of the improbability of
506(2) & 450 IPC injured person reformation or
were the women. rehabilitation of the
The accused entered the accused has been
house of the deceased and adduced.
caused fatal injuries to 3 ii. No analysis
members of the family. undertaken by the
Thereafter, the accused High Court,
entered another house and whether, the
inflicted grievous injuries to person would be a
one person. threat to the
society or whether
not granting Death
Penalty would send
a wrong message to
the society.
iii No previous
criminal record
71
apart from
acquittal in the
case under Section
376 I.P.C.
iv. Does not fulfill
the test of Rarest of
Rare case, where
the alternative
option is
unquestionably
foreclosed.
v. Despite having
lost all hope, yet no
frustration has set
on the accused as
per the certificate
given by the
Superintendent of
jail, that, his
conduct in jail has
been good. Thus
goes on to show
that, he is not
beyond reform.
vi. Without
assistance of
psychological /
psychiatric
assessment and
evaluation it would
not be proper to
hold, that, there is
no possibility or
probability of
reform.
vii. Procedural
impropriety of not
having a separate
hearing for
sentencing at the
stage of trial. A
bifurcated hearing
for conviction and
sentencing, a
necessary
condition.
22 (2019) 2 SCC 311 i. Dastardly i. Young age.
Viran Gyanlal Rajput vs. nature and ii. Lack of criminal
State of Maharashtra manner of crime. antecedents.
Offence- u/s 363, 376, 302 ii. Youth and iii. Post
and 201 of IPC and Section helplessness of incarceration
72
10 and 4 of POCSO Act. the victim. conduct.
iv. Not a menace to
The accused kidnapped the society.
victim aged 13 years, raped v. Possibility of
her, murdered her by reform.
strangulation and buried
her body in the field.
23 (2019) SCC Online SC 42- Accused was out i. Disappointed
Yogendra @ Joginder on bail in with the deceased,
Singh vs. State of M.P. another case and who he believed
has committed had deserted him.
Offence: u/s 302, 326A the crime. ii. Not a cold
and 460 IPC. blooded murder.
iii. Intention was to
The deceased was married cause injury or
and had two issues. The disfigurement,
accused snug into the room what was
of the deceased and warned premeditated was
her that, as she doesn't injury not death.
want to live with him, he is v. No particular
not going to let her live depravity or
neither anybody else and brutality in the
threw acid on her. When the acts.
other family members tried
to save her, the accused
threw acid on them, in the
attack the deceased
sustained 90% burn
injuries and died and the
other three members were
disfigured and injured.
*There should be special reasons for sentencing to death. The term, 'Special Reasons' undoubtedly means, reasons that are, one of a special kind and not general reasons. 24 2019 SCC Online SC 43 - *Special Reasons "
Nand Kishore vs State of not assigned by the M.P. High Court within the meaning of Offence: u/s 302, 363, 366, section 354(3) 367(2)(i) IPC. Cr.P.C to impose death penalty on The accused took away the the accused.
deceased aged 8 years from the 'Mela' and committed rape and murdered her in a barbaric manner. Both legs of the deceased were fractured. Several injuries on the private parts of the deceased inflicted by the 73 accused due to which the intestine had come out. The headless body of the deceased was recovered.
*Para 14, Ratio of Mukesh and another vs State of (NCT of Delhi)
25 (2019) SCC Online SC 81- i. Murder i. Murder not Raju Jagdish Paswan vs. involves preplanned.
State of Maharashtra. exceptional ii. Accused young
depravity. man aged 22 years.
Offence: u/s 302, 376(2)(f) ii. Manner of iii. No evidence
and 201 IPC. commission of produced by
crime is prosecution that
The accused dragged the extremely brutal. the accused had
victim aged 9 year old into the propensity of
the sugarcane field, forcibly committing further
raped her and threw her in crimes, causing
the well. The cause of death continuity of threat
was drowning and there to society.
was evidence of vaginal as iv. The state did
well as anal intercourse. not bring on record
any evidence to
show that the
accused cannot be
reformed and
rehabilitated.
26 (2019) SCC Online SC 363 i. Heinous i. Case rests on
- Sachine Kumar Singraha offence in a circumstantial
vs. State of M.P. premeditated evidence.
manner. ii. Probability of
Offence: u/s 363, 376A, ii. False pretext reformation.
302, 201-II IPC & Section given to the iii. Absence of prior
5(i)(m) r/w Section 6 of uncle of victim to offending history.
POCSO Act. gain custody of iv. His overall
victim. conduct.
The accused was the owner iii. Abused faith. and driver of the vehicle in iv. Exploited the which he had taken the innocence and victim aged 5 years to the helplessness of school, from the custody of the child. her uncle on the false pretext of going along with her to school as he had to pay fees of his daughter.
Thereafter, the victim was raped and murdered and body was found in the well with only an underwear.
27 Criminal Appeal No. I. Age of accused
1411/2018- atj the time of
Dhyaneshwar Suresh commission of
74
Borkar vs. State of offence was 22
Maharashtra years.
ii. Spent 18 years
Offence- u/s 302, 364, in jail.
201, 34 IPC Iii. While in jail, his
conduct was good.
Accused killed a minor iv. Tried to join the
child. society and has
tried to become
civilised man,
completed his
graduation from
Jail. He has tried to
become
reformative.
v. Written poem
from jail. It appears
he has realized his
mistake.
36. If we analyze the judgments of the Apex Court, particularly the case of Jagmohan Singh (supra), the Apex Court has directed to consider the circumstances which are to be considered in alleviation of punishment, those factors are as under:
(i) The minority of the offender;
(ii) The old age of the offender;
(iii) The condition of the offender e.g., wife, apprentice;
(iv) The order of a superior military officer; or public offence;
(v) Provocation;
(vi) When offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other;
(vii) The state of health and the sex of the delinquent.75
In the same judgment while dealing with the issue of aggravating circumstances referring Ratanlal in his Law of Crimes, Twenty Second Edition has discussed as under:-
(i) Increased severity of punishment that includes manner in which the offence is perpetrated;
(ii) The reason of perpetration may be forceful or fraudulent, or by aid of accomplices or in the malicious motive by which the offender was actuated, or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counteracting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case. These considerations naturally include a number of particulars i.e. time, place, persons and things, varying according to the nature of the case The Court further referring Bentham introduced the following mitigating circumstances:
(1) absence of bad intention;
(2) provocation;
(3) self-preservation;
(4) preservation of some near friends;
(5) transgression of the limit of self-defence;
(6) submission to the menaces;
(7) submission to authority;
(8) drunkenness;
(9) childhood.
The Court clarified that the aforesaid are not only the aggravating and mitigating circumstances which require consideration while sentencing the offender.
37. Thereafter, in the case of Rajendra Prasad (supra) taking note of assignment of special reasons to 76 to hang a human being out of corporeal existence has not been recognized. The Court while awarding the sentence of life directed for mental-moral healing courses through suitable work, acceptable meditational techniques and psychotherapic drills to regain his humanity and dignity. The Court observed that the prisons are not human warehouses but humane retrieval homes. Thus, it reflects that from the analogy of Jagmohan Singh (supra) taking into consideration the human values, liberty of a citizen to live and life, the Court directed to commute the sentence with reformation of the offenders in the prisons taking recourse as specified hereinabove.
38. Thereafter, in the case of Bachan Singh (supra), the court has taken into consideration the aggravating and mitigating circumstances. In aggravating circumstances it has been classified that (i) the nature of commission of murder with plan and extreme brutality; (ii) the offence involves exceptional depravity; or (iii) if the murder is of a member of any of the armed forces police force or a public servant when he was on duty or while discharging the lawful duty; (iv) if the murder is committed of a person who is acting in lawful discharge of the duty under Section 43 of Cr.P.C. or who rendered assistance to Magistrate or Police officer demanding his aid or requiring his assistance.
39. The mitigating circumstances taken note of by the Apex Court in the said case are - (i) The offence 77 committed under the influence of extreme mental or emotional disturbance; (ii) If the accused is young or old, he should not be sentenced to death; (iii) If there is probability that the accused would not repeat the criminal act of violence as would constitute a continuing threat to society; (iv) the probability that the accused can be reformed and rehabilitated; (v) In the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; (vi) that the accused acted under the duress or domination of another person; (vii) if the condition of the accused shows that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct. These factors require consideration in the rarest of the rare cases, assigning special reasons after giving due opportunity, that includes to lead evidence without delay in trial.
40. In the case of Machhi Singh (supra) while accepting the proposition of aggravating and mitigating circumstances emerged from the case of Bachan Singh (supra), certain proposition have been laid down to award the death sentence. The propositions are (i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) before opting for the death penalty, the circumstances of the offenders also require to be taken into consideration alongwith the circumstances of the 'crime' (iii) Life imprisonment is the rule of the death sentence is an exception. In other words, death sentence must be 78 imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. The balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded the full weightage to strike out balance between both of them before exercising of such option of the death penalty. In view of the foregoing facts, the analogy drawn up in the case of Bachan Singh (supra) to award death penalty in rarest of rare cases has been reaffirmed with the aforesaid proposition in the case of Machhi Singh (supra) also. The Court has laid down the guidelines to the judges who ought to have exercised the discretion either to award the capital punishment or the imprisonment of life. They must think about the said guidelines, which are as thus:
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
Therefore, relying upon the propositions and guidelines the provoking reasons specified in Section 354(3) of Cr.P.C. has been made necessary while taking 79 recourse of the death sentence, which is an exception deferring from the imprisonment of life on finding it is inadequate punishment.
41. In the case of Mukesh (supra) the Apex Court relied upon the cases of Bachan Singh, Machhi Singh and Ram Naresh (supra) and analyzed in detail the aggravating and mitigating circumstances as aforementioned, but, in nutshell, the basic principle as enumerated in the cases of Bachan Singh and Machhi Singh (supra) has been explained with scope using different words, but, conscientiously the soul of the circumstances were the same.
42. Now we will analyze the aggravating circumstances taken into consideration by the Apex Court in the head the death sentence affirmed in various cases quoted above. In those cases the aggravating circumstances discussed are, the innocence of the victim; conspiracy to pick the boys and girls and to entice them for bad habits though they belong to effluent family and later committed their murder; premeditated and planned way of commission of offence; giving false assurance of returning of the young aged boys and girls thereby police action may be checked against them; the offence is committed for gain of the offender who are menace of living affecting society at large. The Court has further taken into consideration the atrocities of crime against the defenseless and the persons without any provocation 80 which loses the faith of the society; the case of barbaric rape, murder, extortion, dacoity, robbery, trafficking of minor girl, dealing with the dangerous drugs and chain of murder; conduct of the offender; offender is a guardian and committed offence by misusing of confidence to fulfill the trust, hapless and helpless situation because no one is to protect; calculated cold blooded murder, pre-planned offences mentioned above, brutal, ghastly, unmoral offence; shocking conscience of the society creating shocking waves; the manner of subsequent disposal of the body ignoring no humanness; lack of psyche or mind set which may not be amenable for any reformation; doing an act like severing head from the body and to carry it and throw in a pond thereby the feeling and conscience of the society may revolt. It is further explained that if the offender is a gangster and doing act mercilessly having no repentance; serial rapist; defenseless attack without provocation and no animosity; the accused is a menace to the society and shall continue to be so; by his act shocking the collective conscience of the society; taking advantage of familiarity; belied the human relationship of trust and worthiness; the pain and agony of the deceased is beyond imagination and the limit of viciousness, floating abusive facet of human conduct; extreme mental perversion not worth of human conditions; traits of outrageous criminality; the threat of the incident instilled amongst the villagers, as no one would depose against the accused; the act of the offender is anti-theatrical to harmony in the society;
81murder of own kith and kin; disclosing magnitude of crime; remorseless attitude; the impact of the crime on the women working in the night; the antecedents and the act done by a police officer not an illiterate.
43. Now we can examine the cases aforementioned in the head of death sentence commuted for life imprisonment in which the mitigating circumstances were taken into consideration, that are the death penalty awarded in the specter of death hanging over the head of the accused for a long time; long mental depressed condition causes mental harassment and if the case does not come within the purview of the nature that the crime is not committed for a lust for wealth or woman such as extortion, dacoity, rape, anti- social element, kidnapping and trafficking a minor girl or dealing in dangerous drugs; no criminal antecedents; no possibility of threat to the society or endangour the community; no evidence of diabolic planning to commit the crime; the incident is a consequence of an offence with the family victim; when the relation of the deceased and accused of as a friend; unemployment; possibility of reformation and rehabilitation; age of the accused; the accused is not from a wealthy background; in a case of circumstantial evidence; second marriage of the father; the offence in between the family members; the nature of the offence committed by the accused morally justified; the offence has not been committed intentionally; the accused is not a professional killer; the criteria of age either about 82 the young age or 60 years is not relevant, it may be a person having possibility of rehabilitation and reformation; there is no possibility of committing the similar crime; the test of rarest of rare cases has not been fulfilled; the conduct in the jail is relevant factor after awarding sentence; prior to awarding sentence the psychological psychiatric assessment and evaluation of the conduct must show that there is no possibility of reformation; separate hearing for sentencing has not been afforded and the special reasons have not been assigned; the overall conduct of the accused since the date of occurrence till pronouncement of the judgment by any of the Court ought to be seen; the accused became civilized and having interest to the culture and literature. Thus, the said circumstances have been taken as mitigating circumstances.
44. In view of the analysis of the judgments of the Apex Court for the purpose of sentencing policy as made hereinabove, some of the judgments of this Court require consideration.
45. In the case of Kamta Tiwari vs. State of M.P. reported in (1996) (6) SCC 250 the death penalty was awarded by the Division Bench of this Court which was assailed before the Apex Court. The Apex Court while deciding the case and affirming the judgment found the case to be a case of rarest of rare case vide judgment dated 4.9.1996 by Two Judges Bench. The Apex Court has taken into consideration only the aggravating 83 circumstances and not the mitigating circumstances which have been taken into consideration in the subsequent judgments of the Apex Court by three judges. Some of them are referred in the preceding paragraphs. It is to be noted here that the mitigating circumstances for reformation and rehabilitation, conduct in jail, the criminal antecedents and in a case of circumstantial evidence what is to be done has not been taken into consideration in the case of Kamta Tiwari (supra). Similar is the position in the case of Jai Kumar vs. State of M.P. decided by the Apex Court on 9th May, 1999, the Two Judges Bench of the Apex Court has affirmed the sentence of the High Court, however, mitigating circumstances have not been considered in this case.
46. It is further required to be noticed that in the case of Vijay Raikwar vs. State of M.P. the Division Bench of this Court has pronounced the judgment on 2.7.2014 and affirmed the death sentence, but the Apex Court by three Judges Bench vide judgment dated 5th February, 2019 set aside the judgment of the High Court and commuted the sentence, therefore, the judgment of Vijay Raikwar of the Division Bench of this Court is no longer in existence. Similar is the position in the case of State of M.P. vs. Yogendra @ Jogendra Singh the Division Bench has affirmed the death sentence, but three Judges Bench of the Apex Court vide judgment dated 17 th January, 2019 has set aside the judgment of the High Court and commuted 84 the sentence to imprisonment for life. Similar is the position in the case of State of M.P. vs. Sachin Kumar Singhraha decided by the Division Bench of this Court on 3rd March, 2016 in Criminal Reference No. 05/2015 and Criminal Appeal No. 2203/2015 affirming the death sentence awarded by the trial court, but the three Judges Bench of the Apex Court vide judgment dated 12th March, 2019 commuted the sentence of death penalty to life imprisonment.
47. Some of the other Division Bench judgments are also required to be taken note of, which are State of M.P. vs. Bhagwani & Anr decided on 9.5.2018 by the Division Bench of this Court affirming the death penalty, but the Apex Court in SLP (Crl.) Nos. 4821- 4822/2018 with SLP (Crl.) Nos. 4865-4866/2018 vide order dated 29.5.2018 stayed the execution of the death sentence of accused. Similarly, the Division Bench of this Court in the case of Mahendra Singh Gond vs. State of M.P. vide judgment dated 25.1.2019 affirmed the jail sentence awarded by the trial court, but the Apex Court in SLP (Cri.) 1524/2019 vide order dated 18.2.2019 of three Judges Bench stayed the execution of the impugned judgment. Similar is the position in the case of State of M.P. vs. Vinod alias Rahul Chouhtha decided on 8th August, 2018 by the Division Bench of this Court, but, the Apex Court in SLP (Crl.) No.1524/2019 vide order dated 15.2.2019 of three Judges stayed the execution of the death sentence of the petitioner-accused.
8548. It is relevant to mention here that the Apex Court in the case of Santosh Kumar Satishbhushan Bariyar (supra) observed regarding adoption of Resolution No. 62/149 on 18.12.2007 calling upon the country on the issue of retention of the death penalty with intent to establish a world wide moratorium of executive with a view to abolish the death penalty. The India was one of the signatory out of the 59 nations, however, the Apex Court observed that the credible research is to be made by the Law Commissionof India and National Human Rights Commission. Thereafter in the case of Shankar Kisanrao Khade (supra) the Apex Court while dealing the issue of death sentence has expressed its concern. In the said case, the Apex Court called the intervention of the Law Commission of India on the issue (1) It seems that the Courts have been applying the rarest of rare principle while the Executive has taken into consideration some factors not known to the Courts for converting a death sentence to imprisonment for life. The Court was of the opinion that because we are dealing with the lives of people in a case of death or rape victim or murder, therefore it is imperative to consider the said issue otherwise the Courts lay down their judgment on jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided; (2) It does prima facie appear that two important organs of the State that is the Judiciary and the Executive are treating the life of convicts convicted of an offence 86 punishable with death with different standards. While the standard applied by the Judiciary is that of the rarest of rare principle (however subjective or judge- centric it may be in its application) the standard applied by the Executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in the cases in which the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the Executive has taken a diametrically opposite opinion and has commuted the death penalty.
49. On the basis of of the above directions, the Law Commission of India, in Chapter-7 of Report No. 262 contained certain conclusions which have been taken into consideration in the case of Chhannulal (supra) .
50. The said judgment crystallizes the tests which have to be applied for at the time of awarding the death sentence, those are 'crime test', 'criminal test' and R-R test (rarest of rare test) and not the 'balancing test'. The court further observed that the 'crime test' ought to be fully satisfied i.e. hundred percent and 'criminal test' zero percent i.e. no mitigating circumstances favouring the accused. The circumstances favouring the accused are lack of intention to commit the crime, possibility of reformation, age of the accused, not a menace to the society, previous track record. The 'criminal test' may favour the accused to avoid capital punishment. In case 87 the aggravating and mitigating circumstances test favouring or non-favouring the accused applies, still we have to apply finally the 'R-R test' (rarest of rare test) which is based upon the perception of the society i.e. 'society-centric' and not the 'judge-centric'. While applying these tests, the Court has to look into the variety of factors, like societies adherence and antipathy, but certain type of crime like sexual assault and murder of intellectually challenged minor girl suffering from disability, old and infirm women with those disabilities. The aforementioned, though illustrated, but not found exhaustive, therefore, left it open to the judge to decide in individual cases.
51. It is seen that the advocates appearing in the trial court on behalf of the accused are not well-prepared and are not able to put effective defence on behalf of the accused. The advocates who receive the case from the legal aid representing the accused are also not well- prepared. They are not well acquainted with case of the prosecution or the chronology of the events as took place in the case and not in a position to discuss the case with accused. This is also one of the mitigating factor, which requires consideration.
51. Therefore, in view of the foregoing, we can safely assume a significant difference in the cases in which the death penalty awarded by this Court being affirmed by the Apex Court it is either by two judges Bench or only taking into consideration the aggravating 88 circumstances and not the mitigating circumstances. One of the judgment of the Madhya Pradesh High Court in a death reference of State of M.P. vs. Nand Kishore has also been decided by Three Judges Bench vide judgment dated 18th January, 2019 in which the Apex Court found that the special reasons as required to be mentioned for the death penalty have not been mentioned either by the trial court or by the High Court, therefore, in view of the provisions of Section 354(3) of Cr.P.C. the said judgment was found unsustainable. The Apex Court has taken one important aspect into consideration that the judgment of Mukesh (supra), which was relied before them was a case of eyewitness account while the case of Nand Kishore (supra) was a case of circumstantial evidence, therefore, taking into consideration of the said fact as a mitigating factor, the judgment of the Division Bench of the High Court was set aside by the Apex Court.
52. It is further apparent that on pronouncement of the various judgments by the Apex Court from January, 2019 till April, 2019 much emphasis has been laid down on the reformative theory of punishment. The reasons of such reformative approach is found in the case of Chhannulal (supra) in which the Three Judges Bench of the Apex Court has taken into consideration the 262nd Report of Law Commission. The said recommendation has been given much weightage by Three Judges Bench and commuted the death penalty into life imprisonment although in the said case the 89 issue regarding re-consideration of the ratio of the case of Bachan Singh (supra) afresh in the light of the said report was not found justified by the majority of the two judges. Thus, taking note of the analysis of the judgment, the Constitutional Bench of the Apex Court, Three Judges Bench of the Apex Court and the other judgments, simultaneously also of Division Bench Judgments of this Court, the recent view is based on the reformative approach giving due weightage to aggravating and mitigating circumstances of the individual case distinguishing it from the cases of eyewitness account or of circumstantial evidence cases.
53. It is to be noted here that Section 376-A of the Indian Penal Code has been amended w.e.f. 3.2.2013 by the Act No. 22 of 2018; Section 376-AB of IPC has been inserted w.e.f. 21.4.2018 in which the punishment has been prescribed not less than 20 years, which may extend to imprisonment for life, which shall mean imprisonment for the remainder of life, and with fine or with death. Similarly, under Section 302 of IPC, punishment is prescribed with death, or imprisonment for life with fine. Thus it is clear that as per Section 302 of IPC either sentence of death or imprisonment for life is prescribed while as per Section 376-A or 376-AB of IPC, the minimum sentence is of 20 which may extend to imprisonment for life, which shall be remainder for life with fine or with death is prescribed. Therefore, the interpretation made by the Apex Court in the cases of death or of rape 90 in the sentencing policy awarding death sentence or of life imprisonment, applying the 'crime test', 'criminal test' and R-R test (rarest of rare test) would equally apply in the cases under Sections 376-A and 376-AB of IPC also. There cannot be different interpretation between offences under Sections 376-A, 376-AB or 302 of IPC.
54. In the context of the same, the facts of the present case are required consideration for the purpose of awarding the sentence drawing the balance-sheet of aggravating and mitigating circumstances and taking into consideration the factum with respect to commission of offence and also the antecedents and conduct of the accused accused demonstrating that he maybe menace to the society and therefore, requires elimination on the basis of the facts and lastly to find out the rarest of the rare case fit to affirm the death sentence.
55. In view of the foregoing facts, we have examined the aggravating and mitigating circumstances of this case, which are as under:
Aggravating circumstances:
1. Extremely brutal, diabolic and cruel act.
2. Victim was aged five years.
3. Helplessness of the minor girl.
4. No provocation by victim.
5. Nature of offence and that the accused was in a dominating position.91
6. Gravity of injuries.
7. Relationship of victim with accused.
8. Subsequent disposal of dead body.
9. Shocking to the collective conscience of society.
Mitigating circumstances:
1. Age of accused is 19 years.
2. Case of circumstantial evidence.
3. No evidence produced by prosecution that the accused had the propensity of committing further crimes causing continuous threat to society.
4. The State did not bring on record any evidence to show that the accused cannot be reformed or rehabilitated.
5. Other punishment options are unquestionably foreclosed.
6. Therefore possibility of reformation cannot be ruled out.
7. Accused is not a professional killer.
8. There is no criminal antecedents of accused.
56. In addition to the aforesaid, it is a case of circumstantial evidence in which the principle of prudence applies. If we see the judgments of Apex Court as per the table drawn hereinabove then it is luculent that in the cases of circumstantial evidence, while awarding sentence of death penalty clinching cogent evidence ought to be looked into with more care 92 and circumspection in exceptional cases otherwise in a case of circumstantial evidence the death penalty may not prudent. In the present case, the age of the accused is 19 years and the possibility of reformation and rehabilitation of his entire career cannot be shut down. Simultaneously it is to observe here that nothing has come on record as well as in the finding of the trial court as to why the rehabilitation and reformation of the accused is not possible and such observation of the court is based on the hypothesis and without any basis. As per the report received from the jail, the behaviour of the accused is prudent and unquestionable, therefore, setting aside the said finding, in our considered opinion, the policy of reformation and rehabilitation cannot be ruled out in the case of appellant-accused who is 19 years of age. The observation made by the trial court while recording the finding that the accused may be dangerous to the society is based on the presumption and hypothesis, which cannot be accepted without any basis. In this regard the prior and subsequent antecedents of the accused in the jail are relevant, which do not draw any inference in negative side as observed by the trial court.
57. In view of the foregoing observation, in our considered opinion, the conviction of the appellant- accused recorded by the trial court for the charge under Section 363, 366-A, 376(2)(f)(i) and 201 of the IPC is hereby affirmed, but, on the point of sentence for an offence under 376A read with Section 376-AB and 93 302 of IPC, it is not one of the rarest of rare case in which option of other punishment has been unquestionably foreclosed. Therefore, we commute the death penalty to the imprisonment for life.
58. Accordingly, the appeal filed by the appellant- accused and the death reference sent for confirmation of death sentence are hereby allowed in part. The finding regarding guilty of the appellant for the charges under Sections 363, 366A, 376(2)(f)(i) and 201 of the IPC are hereby confirmed, but, so far as the death penalty for the offence under Section 376A read with Section 376-AB and 302 of IPC awarded by the trial court is set aside. The death penalty is commuted to the sentence of life imprisonment. It is made clear that the sentence of life imprisonment of the appellant would mean the sentence of 30 years.
59. Apart from the decision of this appeal, this Court does have certain duties and power to issue appropriate direction for implementation of the directions of the Apex Court as observed in the case of Rajendra Prasad (supra). The Apex Court has directed that the meditational technology must be used as a tool of criminology which is a mascent-ancient methodology and directed to experiment it. The Apex Court further observed that the said methodology would be beneficial to heal the life of human. This Court is unaware whether this methodology has been adopted by the State Government or not including the use of 94 techniques like psychotherapic drills to regain the humanity and dignity of the mental psycho status of a prisoner converting to be a human, therefore, it is directed that the State Government must ensure to adopt the methodology as directed in the judgment of Rajendra Prasad (supra) and adequate steps ought to be taken by them. We hope and trust that the State Government shall ensure the observations of the Apex Court.
60. At the end, it is our duty to record the words of appreciation in favour of the amicus curaie who have assisted this Court in the disposal of this appeal, and death reference wherein the appellant-accused has been awarded capital punishment by the trial court, therefore, their assistance is hereby acknowledged.
61. Registrar concerned of this Court is directed to send a copy of this judgment to all the District and Sessions judges for circulation, and a copy be also sent to the Chief Secretary to the State Government and Principal Secretary, Law Department, for communication and to adhere to the direction of the Court.
(J.K. Maheshwari) (Smt. Anjuli Palo)
Judge Judge
rs shukla/
Dharkar
Digitally signed by
RAGHVENDRA SHRAN
SHUKLA
Date: 2019.06.17
14:49:20 +05'30'