Document Fragment View

Matching Fragments

heartedly. What has been primarily argued in this Court is that the Trial Court and the High Court had improperly balanced the consideration of aggravating and mitigating circumstances and it has been urged that if mitigating circumstances are properly weighed in accordance with the well-known judicial principles, the death sentence awarded to the appellant cannot be sustained.

34. In this connection, we may consider the evolution of sentencing structure and the concept of mitigating circumstances in India relating to death penalty. The Code of Criminal Procedure, 1898 (hereinafter "1898 Code"), had section 376(5) which required that if an accused is convicted of an offence punishable with death and the court sentences him with any punishment other than death, the court shall, in its judgment, give reasons why death sentence was not passed. The provision of section 367(5) of 1898 Code reads as follows:

85. The High Court in this case, by following the Ravji ratio, therefore, did not properly appreciate the ratio in Bachan Singh (supra) in awarding death sentence on the appellant.

86. In the instant case, the High Court while discussing the mitigating circumstances as against the aggravating circumstances has not properly followed the principles discussed in Bachan Singh's case. In Bachan Singh (supra) this Court at paragraph 206 (at page 750 of the report) sets out certain mitigating circumstances which were suggested by Dr. Chitale, the learned counsel and at paragraph 207 of the report the learned Judge observed that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Those circumstances are set out hereinbelow:

The High Court has also failed to take into consideration that the appellant is not a continuing threat to society in the absence of any evidence to the contrary. Therefore, in paragraph 78 of the impugned judgment, the High Court, with respect, has taken a very narrow and a myopic view of the mitigating circumstances about the appellant. The High Court has only considered that the appellant is a first time offender and he has a family to look after. We are, therefore, constrained to observe that the High Court's view of mitigating circumstance has been very truncated and narrow in so far as the appellant is concerned.

97. In Smt. Triveniben v. State of Gujarat [(1989) 1 SCC 678], the Constitution Bench of this Court, following the Bachan Singh ratio, held "death sentence cannot be given if there is any mitigating circumstance in favour of the accused. All circumstances of the case should be aggravating"

(Para 25, page 698 of the report).

98. Unfortunately, the High Court contrary to the ratio in the aforesaid cases, fell, in this case, into an error by approving the death sentence as it was swayed by the cruel manner in which the two children were done to death by the appellant. The mitigating circumstances in favour of the appellant, were not properly considered.