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213. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.
214. To do this, the trial court must elicit information from the accused and the state, both. The state, must - for an offence carrying capital punishment -

at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the accused. This will help establish proximity (in terms of timeline), to the accused person’s frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for the other factors of (3) and (4) - an onus placed squarely on the state – conducting this form of psychiatric and psychological evaluation close on the heels of commission of the offence, will provide a baseline for the appellate courts to use for comparison, i.e., to evaluate the progress of the accused towards reformation, achieved during the incarceration period.

20. The imperative to conduct evaluation of mitigating circumstances at the trial stage, “to avoid slipping into a retributive response to the brutality of the crime” which this court noticed was frequently occurring in several cases, was underlined, and it was categorically held that the court had to elicit information from the state and the accused. The prosecution also is mandated to produce before the Sessions Court, material disclosing psychiatric and psychological evaluation of the accused, which is to preferably be collected beforehand. At the stage when the trial court is informed that the prosecution intends to press for imposition of capital sentence, the evaluation should be insisted upon; the state is under a duty to present all objective materials, as mentioned in Manoj (supra), having regard to the decision in Bachan Singh (supra) and importantly, the fact that it is in a position to actually gather the materials. Its task is to present the facts- relating to the accused, which are favourable and unfavourable, for the court to impose a just sentence.
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24. During the course of hearing this matter, it was noticed that there was limited material regarding the mitigating circumstances of the appellants; existing jail reports and probation officer reports, were also outdated. So, on 05.08.2021, this court directed the preparation and submission of three reports, to facilitate fairer consideration of the question of sentence. These were: a report of the probation officer, report on nature of work done while in jail (by the jail administration), and a psychological and psychiatric evaluation report (by Director of VIMHANS); these are on record, and form part of this court’s consideration, to ascertain the individualised sentences appropriate in the present case. Counsel for the appellants have also placed on record, written submissions outlining the mitigating factors and justification for a modification, on the question of sentence.

28. Both appellants in the present case, share some commonalities: they were of young age at the time of offence, hail from educated backgrounds, and they continue to enjoy the love and affection of their families, each of which have a good standing and strong ties within the communities they live in. While the material relating to their lives and social conditions pre-conviction do not offer an explanation as to the cause for commission of offence, it can certainly be said that the material available regarding their conduct post-conviction, remains encouraging. They have applied themselves during the time of incarceration and used their time to contribute meaningfully – for which they have each received commendations. Their psychological and psychiatric evaluations were concluded to be normal, without cause for concern. A strong case is made out in support of the appellants’ probability of reform (as already evidenced by their jail conduct), and reintegration into society. The state, too, has not indicated any material to the contrary, regarding this aspect.