Rajesh Kumar vs State Th:Govt Of Nct Of Delhi

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1871-1872 OF 2011

(Arising out of SLP(CRL) Nos.9516-9517 of 2009)

Rajesh Kumar ...Appellant(s)

- Versus -

State through Govt. of NCT of Delhi ...Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. These Criminal Appeals are preferred from the

judgment of conviction under section 302 of the

Indian Penal Code (hereinafter "IPC") and the

penalty of death sentence, delivered on 6th August,

2

2009 by the High Court of Delhi in Death Sentence

Reference no. 2/2007 and Criminal Appeal no.

635/2007, whereby the High Court upheld the

conviction and confirmed the penalty of the death

sentence imposed by the Additional Sessions Judge,

Rohini Court in Session Case No.178/06.

3. This Court had issued notice on the limited question

of quantum of sentence. The facts and circumstances,

which are relevant to these appeals, are as under.

4. According to the prosecution, the duty officer in

the Police Control Room received a call from number

20056630 at 15:38 hours on 28.7.2003 informing him

that a man had entered a house in Subhash Nagar and

had assaulted two children and had locked the door

of a room from inside. Another call was made to the

Police Control Room from mobile No. 9810458303

noting that the informant had informed that a man

3

had murdered two children inside House No. 2/129

Subhash Nagar near Arya Samaj Temple.

5. Each time the duty officer at the police control

room, on receipt of afore-noted information, relayed

the information to the concerned police station i.e.

P.S. Rajouri Garden, where the duty constable

recorded the said information by way of entries in

the daily diary register, being DD No. 11, Ex.PW-

16/A at 3:35 PM and DD No. 12, Ex.PW-16/B at 3:50

PM.

6. ASI Jagpal PW-22 was handed over a copy of both the

DD entries and was deputed to investigate. He took

along with him HC Naresh PW-19 and Const. Sukhbir

PW-24. The three police officers reached House No.

2/129 Subhash Nagar. A crowd had gathered outside

the house. Mr. Bahadur Singh PW-4 a resident of

House No. 2/130 Subhash Nagar i.e. the immediate

neighbour and one Mr. Negi (not examined as a

4

witness) were present in the gathering and told the

police officers that the assailant had locked

himself in a room on the second floor of House No.

2/129 Subhash Nagar. The officers climbed up the

staircase and reached the second floor and knocked

the door. The man inside did not oblige. The three

police officers had a peep inside through the

ventilator above the door and saw the body of a male

child, smeared with blood and the neck badly cut.

Blood was splattered all over the room. They had no

option but to break open the door and apprehend the

man inside who was Rajesh Kumar, the appellant.

7. Inspector Ram Chander PW-32, the SHO of P.S. Rajouri

Garden, was given the information about a man

killing two children on the second floor of House

No. 2/129 Subhash Nagar. He reached the house and by

that time the appellant had been apprehended by ASI

Jagpal Singh, HC Naresh and Const. Sukhbir.

5 8. On learning that Harshit, the younger son had been

removed to Chanan Devi Hospital, Inspector Ram

Chander went to the hospital and learnt that Harshit

was in an unconscious state. He collected the MLC

Ex.PW-8/A of Harshit and returned to the spot.

9. Inspector Ram Chander recorded the statement Ex.PW-

1/A of Sangeeta Sethi and made an endorsement Ex.PW-

32/A on the same. He sent the same through Constable

Kamal at 6.30 PM for registration of an FIR. HC

Rajesh Tyagi PW-17, the duty officer at P.S. Rajouri

Garden, recorded the FIR Ex.PW-17/A at 6:50 PM on

the basis of the statement of Sangeeta Sethi and

sent a copy of the FIR back to the spot with

Constable Kamal. Constable Amarender PW-8 was handed

over the FIR to be delivered to the Area Magistrate

and he left the police station at around 7:20 PM and

returned to the police station at 10:10 PM.

6 10. After the incident, Swanchetan, a Society for

Mental Health was informed by the police and they

were requested to counsel the family. Dr. Rajat

Mitra (P.W.-7), Director of Swanchetan Society for

Mental Health found the mother of the children in a

state of total shock and she was unable to speak.

Dr. Rajat Mitra then talked with the appellant and

did not find an abnormality in the behavior of the

appellant wherefrom he could be certified as an

insane person.

11. The investigation being complete, the police

personnel left for the police station. The appellant

was formally arrested as recorded in the arrest memo

Ex.PW-32/F at 10:00 PM from the place of occurrence.

12. Unfortunately Master Harshit could not survive and

died the same night in the Hospital.

7 13. The appellant was charged under section 302 IPC

for committing the murder of two children namely,

Anshul and Harshit.

14. At the trial, Sangeeta PW-1, the mother of the two

children, deposed that she was a housewife and was

living on the second floor of house No. 2/129,

Subhash Nagar at the time of the occurrence. Her

elder son was named Anshul and the younger one was

named Harshit. Their age was 4= years and 8 months

respectively. The incident took place at around 3:00

PM on 28.7.2003 when she was present in her house

and her sons were sleeping in the bed room.

Appellant came and asked for water. She gave him

water. Appellant wanted a meal. She went to the

kitchen and heard cries of Harshit. She returned and

picked up Harshit. Appellant told her to give the

child to him and cook meals for him. She gave her

child to the appellant and went to the kitchen. Her

son cried continuously even in the arms of the

8

appellant and suddenly the crying stopped. She went

to the bed room and saw that her son was being held

from his legs by the appellant who was hitting the

child on the floor. Her other son was sleeping on

the bed in the same room. She snatched her son from

the appellant and rushed to Pinki's house and handed

over her unconscious son to Pinki and rushed back,

by which time the appellant had bolted the door. She

raised an alarm. She heard her son crying Ma Ma..

Suddenly the cries died down. By that time her

neighbour Pritam Singh and Bahadur as also a few

other persons gathered. The police arrived and a

police person climbed a table and through a

ventilator saw the dead body of her son and the

appellant standing nearby. They pushed and opened

the door. She saw her son with his throat slit. A

piece of glass, stained with blood, was lying on the

chest of her son. The dressing table glass was

broken. The walls were stained with blood.

9 15. PW-1 was cross-examined and she admitted that

there was no quarrel between her husband and the

appellant qua the demand of any money, but

volunteered that the appellant used to demand money

from her husband.

16. Mukesh Sethi PW-2, the husband of PW-1, deposed

that on the day of the incident i.e. 28.7.2003, he

was residing with his wife and children on the 2nd

floor of house No. 2/219, Subhash Nagar, and the

appellant was the husband of his sister Alka, and

was unemployed for the last 2= to 3 years and during

this period the appellant used to demand money for

setting up business and that he gave him Rs.15,000/-

and Rs.20,000/- on two occasions. 15-20 days prior

to the date of the incident the appellant had

demanded more money, which he refused because he did

not have money to spare. On 28.7.2003 at around 4-

4:15 PM he was sitting in his other house at Rohini

and received a call from his wife who rang up from a

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neighbour's house at 4:45 PM. He reached his house

and saw a crowd and the police. His wife was crying

that her children had been killed. His younger son

had been removed to the hospital and the other son

was lying dead inside the house.

17. PW-2 was cross-examined and he admitted that

relations between him and the appellant were normal.

He stated that he saw the appellant for the first

time after the incident in the police station only.

He denied that the appellant was mentally sick.

18. The appellant did not lead any evidence in

defence.

19. After the appreciation of evidence, the Trial

Court observed that the prosecution established the

charges against the appellant beyond reasonable

doubt. Consequently, the Trial Court vide order-

11 dated 12.03.2007 convicted the appellant under

section 302 IPC and vide order dated 24.03.2007

awarded death sentence to the appellant subject to

the confirmation of the High Court.

20. Consequently, a petition for confirmation of Death

Sentence bearing Death Sentence Ref. no. 2/2007 was

filed before the High Court

21. Being aggrieved the appellant also preferred a

Criminal Appeal no. 635/2007 before the High Court.

22. By judgment dated 06th August 2009, the High Court

after re-appreciation of the entire evidence on

record observed that it is beyond reasonable doubt

that the appellant committed the murder of two

children and upheld the conviction of the appellant

under section 302 IPC. The High Court further

observed that the case falls in the category of

12

rarest of rare case, dismissed the Criminal Appeal

filed by the appellant and confirmed the death

sentence imposed upon him.

23. The learned Counsel for the appellant submitted

that the facts of this case do not put the case in

the category of the rarest of the rare cases,

attracting the penalty of death. Listing the

mitigating circumstances in this case, the learned

Counsel urged that there are several of them. The

first is that the appellant is a first time

offender. The second is that he has two sons, a wife

and a widowed mother to support. The third is the

young age of the appellant who was aged 37 years

when he committed the crime. The fourth is the

chance of the appellant's rehabilitation in the

society being not ruled out. The fifth, which is a

corollary of the fourth is, that it cannot be said

that the appellant is a continuing threat to the

society.

13 24. The learned Additional Solicitor General appearing

on behalf of the State urged that the facts and

circumstances of this case clearly bring it within

the rarest of rare case and warrants the imposition

of death sentence. He argued that the appellant

killed two children, one of which was 8 months old

and the other was 4= years of age, who were

obviously unarmed and innocent and incapable of

giving any provocation to the appellant.

25. The learned Additional Solicitor General also

contended that the killing of children is always a

heinous crime. The evidence against the appellant is

clinching and the appellant has not suffered any

remorse.

26. The learned Additional Solicitor General referred

to the report from Swanchetan, which is a society

for mental health. The said report reflects the

14

opinion of Dr. Rajat Mitra (PW-7), Director of

Swanchetan, who examined the appellant after the

incident.

27. By placing reliance on the said report, the

learned Additional Solicitor General argued that the

appellant did not show any sign of remorse to Dr.

Rajat Mitra, when he was examined after the

incident.

28. The learned Additional Solicitor General also

referred to report of All India Institute of Medical

Sciences dated 27.05.2009. This report was prepared

pursuant to the order of the Delhi High Court dated

04.05.2009. The said Medical Board examined the

appellant on 27.05.2009. The Board opined that the

appellant is of sound mind and did not want to

discuss the issue of the nature of offence but

informed the Doctor that he has to spend his life in

15

prison. The Medical Board opined that the appellant

was mentally fit.

29. The learned Additional Solicitor General also drew

the attention of this Court to Question no. 138 in

the examination of appellant under section 313 of

Criminal Procedure Code. Both the question and the

answer are set out below:

"Q.138 Anything else you want to say?

A. I am unwell since childhood. I am on

medicine since then. The problem with me is

that I fell anywhere while walking. I also

start shouting. I become unaware about

myself. My treatment was under going in jail

and of late now I have left my treatment, as

doctor is not going to change my medicine.

The problem, which I was facing in the past

has re-surfaced. Even in the past while I

use to drive my eyes use to get closed of

its own. Mukesh and his relations know about

my medical problems.

I do not know how Anshul and Harshit

have expired. I am innocent. I have been

falsely implicated. My medical documents

have been torn apart by my wife and for that

reason out of having a sense of guilt she

has not come to see me even in jail. I

cannot produce these medical papers.

16

30. In the impugned judgment, the High Court also

noted certain mitigating factors which are as

follows:

"48. ... The first is that the appellant is a

first time offender. The second is that he

has two sons, a wife and a widowed mother to

support. The third is the fact that

financial hardship created stress in the

mind compelling the appellant to commit the

crime. The fourth is the young age of the

appellant who was aged 37 years when he

committed the crime. The fifth is the chance

of the appellant's rehabilitation in the

society being not ruled out."

31. In para 79 of the impugned judgment, the High

Court has noted the aggravating circumstances. The

first aggravating circumstance which the High Court

noted is the brutal, diabolical and dastardly nature

of assault by the appellant on the two children. The

second aggravating circumstance is the trauma

produced on the mother of children. The third

aggravating circumstance is that the victims are

innocent children. The fourth aggravating

circumstance is breach of trust by the appellant.

The appellant wanted P.W.1, the mother of the

17

children, to cook food for him and the mother went

to the kitchen giving the younger child to the

appellant, trusting that no harm would be caused to

the child but that trust was breached. The fifth

aggravating circumstance was the close relationship

between the appellant and the victims. The sixth

aggravating circumstance, pointed out by the High

Court, is the motive of revenge of the appellant

towards the children, as the father of the children

did not extend financial help to him. The seventh

aggravating circumstance is the lack of remorse on

the part of the appellant. The eighth aggravating

circumstance is pre-meditation of the appellant in

committing the crime and the cruel weapon of offence

used namely a piece of glass, which was retrieved by

breaking the mirror of the dressing table.

32. The High Court in the impugned judgment while

balancing these circumstances confirmed the Death

Sentence.

18 33. In so far as the plea of insanity is concerned,

both the Trial Court and the High Court rejected the

same. In fact no such plea was taken by the

appellant in the Trial Court. Before this Court also

the said plea of insanity has been taken half-

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

19

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:

"(5) If the accused is convicted of an

offence punishable with death, and the court

sentences him to any punishment other than

death, the court shall in its judgment state

the reason why sentence of death was not

passed."

35. This was during the colonial days when the worth

and dignity of human life was not the central point

in our jurisprudence.

36. Even after the coming of Constitution of India,

the aforesaid provision of section 367(5) of the

1898 Code continued for some time.

20 37. In 1955, the Code of Criminal Procedure (Amendment)

Act, 1955 deleted the aforesaid section 367(5) of

the 1898 Code. As a result of this amendment, which

came into effect from 1st January 1956, it was no

longer necessary for a Court to record in its

judgment, in case of conviction in connection with

an offence punishable with death, any reason for not

imposing the death sentence.

38. With the functioning of this Court under the

Constitution, several cases of death sentence came

before this Court from 1950 onwards. But reference

to extenuating or mitigating circumstances in a case

of death penalty was made possibly for the first

time by this Court in the case of Nawab Singh v. The

State of Uttar Pradesh (AIR 1954 SC 278). In that

case it was urged that for delay of execution, the

death sentence should be commuted to one for

transportation of life. This Court rejected the said

argument holding inter-alia that it is a matter

21

primarily for the consideration of local Government.

This Court, however, opined that in a proper case an

inordinate delay in the execution of sentences may

be regarded as a ground for commutation. However,

this Court held that in the facts of that case

murder was a cruel and deliberate one and there were

no extenuating circumstances.

39. After the amendment of 1898 Code, in the year 1955,

the first case relating to death sentence, which

came before this Court was that of Vadivelu Thevar

v. The State of Madras reported in AIR 1957 SC 614

wherein this Court made the following pertinent

observations:

"13......If the court is convinced about the

truth of the prosecution story, conviction

has to follow. The question of sentence has

to be determined, not with reference to the

volume or character of the evidence adduced

by the prosecution in support of the

prosecution case, but with reference to the

fact whether there are any extenuating

circumstances which can be said to mitigate

the enormity of the crime. If the court is

satisfied that there are such mitigating

22

circumstances, only then, it would be

justified in imposing the lesser of the two

sentences provided by law. In other words,

the nature of the proof has nothing to do

with the character of the punishment. The

nature of the proof can only bear upon the

question of conviction - whether or not the

accused has been proved to be guilty. If the

court comes to the conclusion that the guilt

has been brought home to the accused, and

conviction follows, the process of proof is

at an end. The question as to what

punishment should be imposed is for the

court to decide in all the circumstances of

the case with particular reference to any

extenuating circumstances......"

40. It is, therefore, clear that this Court was making

a distinction between its formation of opinion on

the conviction of the accused for the crime

committed and its formation of opinion on the

punishment to be imposed for the crime on

consideration of extenuating or mitigating

circumstances.

41. The next decision of this Court rendered on the

constitutionality of death sentence was in the case

of Jagmohan Singh v. The State of U.P. (1973) 1 SCC

23

20. The Constitution Bench of this Court in

Jagmohan Singh (supra) examined whether total

discretion can be conferred on the judges in

awarding death sentence, when the statute does not

provide any guidelines on how to exercise the same.

42. The decision in Jagmohan Singh (supra) was rendered

when the present Code of Criminal Procedure, 1973

was not in existence.

43. The Constitution Bench in Jagmohan Singh (supra)

held that the policy of the law giving a wide

discretion to the judges in the matter of imposition

of death sentence had its origin in the

impossibility of laying down any standards for

exercise of such discretion. However, the Court

found that such discretion is liable to be corrected

by superior courts, but the court did not find that

conferment of such discretion on the judges was

unconstitutional.

24 44. The Constitution Bench in Jagmohan Singh (supra)

however felt it difficult to follow the ratio of

United States Supreme Court in William Henry Furman

v. State of Georgia [reported in 408 US 238

(1972)], as this Court found that our Constitution

does not have a provision like the Eighth Amendment

of the Constitution of United States. This Court

also held in Jagmohan Singh (supra) that the test of

reasonableness cannot be applied by this Court in

the same manner as is done by the United States

Supreme Court in view of the existence of `due

process clause' in the United States Constitution

(see para 12 at page 27 of the report). The learned

Judges quoting from the commentary by Ratanlal's,

Law of Crimes, (Twenty-second edition), referred to

certain mitigating and aggravating circumstances in

para 22 at page 32 of the report, but opined that

the said list is not exhaustive (para 23 at page 32

of the report).

25 45. In paragraph 28 at page 36 of the report in Jagmohan

Singh (supra) the Constitution Bench found that the

legal position as it stood in 1972 was as follows:-

"........The sentence follows the conviction,

and it is true that no formal procedure for

producing evidence with reference to the

sentence is specifically provided. The

reason is that relevant facts and

circumstances impinging on the nature and

circumstances of the crime are already

before the court. Where counsel addresses

the court with regard to the character and

standing of the accused, they are duly

considered by the court unless there is

something in the evidence itself which

belies him or the Public Prosecutor for the

State challenges the facts. If the matter is

relevant and essential to be considered,

there is nothing in the Criminal Procedure

Code which prevents additional evidence

being taken. It must, however, be stated

that it is not the experience of criminal

courts in India that the accused with a view

to obtaining a reduced sentence ever offers

to call additional evidence."

46. However, the aforesaid position substantially

changed with the introduction of a changed

sentencing structure under the present Code of

Criminal Procedure, 1973. If we compare the 1898

26

Code with 1973 Code, we would discern lot of changes

between the two Codes in sentencing structure.

47. Chapter XXIII of 1898 Code under the heading of

"Trial before the High Court and Sessions Courts"

lays down the procedure for trials conducted before

a High Court or Court of sessions. Section 268 of

1878 Code provides for trials before a Court of

sessions either by a Jury or by the Judge himself.

Section 309 of 1898 Code provides for the manner in

which judgment is to be given in cases tried by the

Judge himself.

48. Section 309 of 1898 Code reads as follows :

"309. Judgment in cases tried by the Judge

himself.-

(1) When, in a case tried by the Judge

himself, the case for the defence and the

prosecutor's reply (if any) are concluded,

the Judge shall give a judgment in the case.

27

(2) If the accused is convicted, the Judge

shall, unless he proceeds in accordance with

the provisions of Section 562, pass sentence

on him according to law."

49. The 41st Law Commission Report (Volume I) dated 24th

September, 1969 proposed extensive changes in 1898

Code. In paragraph 23.2 of the said report, the Law

Commission recommended a set of new provisions for

governing "Trials before a Court of sessions". With

regard to Section 309 of the 1898 Code, the Law

Commission recommended that hearing of the accused

was most desirable before passing any sentence

against him. This recommendation was accepted and

incorporated while enacting Section 235 Cr.P.C in

1973 Code within Chapter XVIII of the same under the

heading "Trial before a Court of Sessions".

50. Section 235 Cr.P.C. reads as follows:

"235. Judgement of acquittal or conviction.

- (1) After hearing arguments and points of

law (if any), the Judge shall give a

judgment in the case.

(2) If the accused is convicted, the Judge

shall, unless he proceeds in accordance with

28

the provisions of section 360, hear the

accused on the question of sentence, and

then pass sentence on him according to law.

51. The most significant change brought about by the

incorporation of the recommendation of the Law

Commission (supra), is the giving of an opportunity

of hearing to the accused on the question of

sentence. This is the incorporation of the great

humanizing principle of natural justice and fairness

in procedure in the realm of penology. The trial of

an accused culminating in an order of conviction

essentially relates to the offence and the accused

under 1898 Code did not get any statutory

opportunity to establish and prove in such trial the

mitigating and other extenuating circumstances

relating to himself, his family and other relevant

factors which are germane to a fair sentencing

policy. This opportunity of hearing at the post

conviction stage, gives the accused an opportunity

to raise fundamental issues for adjudication and

29

effective determination by Court of its sentencing

discretion in a fair and reasonable manner.

52. Similarly the corresponding provision of section 354

of 1973 Code was section 367 of the 1898 Code. Both

the sections 354 of 1973 Code and section 367 of

1898 Code have virtually the same title. In section

367 of 1898 Code, it was `Language of judgment.

Contents of judgment' and in 1973 Code, title of

section 354 is `Language and contents of judgment'.

But Section 354 of 1973 Code is substantially

different from section 367 of 1898 Code as there was

no such provision as section 354(3) of 1973 Code in

the 1898 Code. Section 354 of 1973 Code runs as

under:-

"354. Language and contents of judgment. -

(1) Except as otherwise expressly provided

by this Code, every judgment referred to in

section 353,--

(a) shall be written in the language of

the Court;

30

(b) shall contain the point or points for

determination, the decision thereon and

the reasons for the decision;

(c) shall specify the offence (if any) of

which, and the section of the Indian

Penal Code (45 of 1860) or other law

under which, the accused is convicted and

the punishment to which he is sentenced;

(d) if it be a judgment of acquittal,

shall state the offence of which the

accused is acquitted and direct that he

be set at liberty.

(2) When the conviction is under the Indian

Penal Code (45 of 1860) and it is doubtful

under which of two sections, or under which

of two parts of the same section, of that

Code the offence falls, the Court shall

distinctly express the same, and pass

judgment in the alternative.

(3) When the conviction is for an offence

punishable with death or, in the

alternative, with imprisonment for life or

imprisonment for a term of years, the

judgment shall state the reasons for the

sentence awarded, and, in the case of

sentence of death, the special reasons for

such sentence.

(4) When the conviction is for an offence

punishable with imprisonment for a term of

one year or more, but the Court imposes a

sentence of imprisonment for a term of less

than three months, it shall record its

reasons for awarding such sentence, unless

the sentence is one of imprisonment till the

rising of the Court or unless the ease was

tried summarily under the provisions of this

Code.

31

(5) When any person is sentenced to death,

the sentence shall direct that he be hanged

by the neck till he is dead.

(6) Every order under section 117 or sub-

section (2) of section 138 and every final

order made under section 125, section 145 or

section 147 shall contain the point or

points for determination, the decision

thereon and the reasons for the decision."

53. The importance of section 235(2) of 1973 Code has

been explained by this Court in several decisions

and its importance can hardly be overemphasized in a

case where prosecution demands the imposition of

death penalty and the court awards the same.

54. In Santa Singh v. State of Punjab [(1976) 4 SCC 190]

this Court held that this new provision is in

consonance with the modern trends in penology and

sentencing procedures. Noticing the fact that

section 235(2) is a new provision introduced by the

legislature in 1973 Code, this Court went on to

32

explain that this is an important stage in the

process of administration of criminal justice and is

as important as the adjudication of guilt and this

stage should not be confined to a subsidiary

position as if it were a matter of not much

consequence.

55. In Santa Singh (supra) this Court noted that in most

countries of the world problem of sentencing the

criminal offender is receiving increasing attention

and it is so in view of rapidly changing attitude

towards crime and criminal. In many countries,

intensive study of sociology of the crime has

shifted the focus from the crime to the criminal,

leading to a widening of the objectives of

sentencing and simultaneously of the range of the

sentencing procedures.

56. Bhagwati, J., (as His Lordship then was) giving the

judgment in Santa Singh (supra) pointed out and

33

which was later on accepted in Bachan Singh v. State

of Punjab [(1980) 2 SCC 684] that proper exercise of

sentencing discretion calls for consideration of

various factors like the nature of offence, the

circumstances - both extenuating or aggravating, the

prior criminal record, if any, of the offender, the

age of the offender, his background, his education,

his personal life, his social adjustment, the

emotional and mental condition of the offender, the

prospects for the rehabilitation of the offender,

the possibility of his rehabilitation in the life

of community, the possibility of treatment or

training of the offender, the possibility that the

sentence may serve as a deterrent to crime by the

offender or by others. After referring to all the

aforesaid facts, the learned Judge opined as under:

"3. ....................... These are factors which have

to be taken into account by the court in

deciding upon the appropriate sentence, and

therefore, the legislature felt that, for

this purpose, a separate stage should be

provided after conviction when the court can

hear the accused in regard to these factors

bearing on sentence and then pass proper

sentence on the accused. Hence the new

provision in Section 235(2)."

(para 3, page 195 of the report)

34

57. After analyzing the aforesaid aspects, the learned

Judge posed the question: What is the meaning and

content of expression "hear the accused"? By

referring to various aspects and also the opinion

expressed by Law Commission in its Forty-eighth

report, Bhagwati, J. (as His Lordship then was)

opined that the hearing contemplated under section

235(2) is not confined merely to oral submissions

but it is also intended to give an opportunity to

the prosecution and the accused to place before the

court facts and material relating to various factors

bearing on the question of sentence. However, there

was a note of caution that in the name of such

hearing, the court proceedings should not be unduly

protracted.

58. This Court held in Santa Singh (supra) that non-

compliance with such hearing is not a mere

irregularity curable under section 465 of the 1973

35

Code. This Court speaking through Bhagwati, J. (as

His Lordship then was) emphasized that this legal

provision under our constitutional values has

acquired new dimension and must reflect "new trends

in penology and sentencing procedures" so that penal

laws can be used as a tool for reforming and

rehabilitating criminals and smoothening out the

uneven texture of the social fabric and not merely

as a weapon for protecting the hegemony of one class

over the other (see para 6, page 197 of the report).

59. In Muniappan v. State of Tamil Nadu [(1981) 3 SCC

11] Chief Justice Chandrachud, delivering the

judgment again had to consider the importance of

section 235(2) and section 354(3) Cr.P.C. in our

sentencing procedure. The learned Chief Justice held

that the obligation to hear the accused on the

question of sentence under section 235(2) of 1973

Code is not discharged by putting a formal question

to the accused as to what he has to say on the

36

question of sentence. The learned Chief Justice made

it clear that the Judge must make a genuine effort

to elicit from the accused all items of information

which will eventually bear on the question of

sentence. All such items of information would

furnish a clue to the genesis of the crime and the

motivation of the criminal are relevant and the

learned Chief Justice emphasized that in such an

exercise, it is the bounden duty of the Judge to

cast aside the formalities of the Court-scene and

approach the question of sentence from a broad

sociological point of view.

60. The learned Chief Justice further said in the

sentencing procedure it is not only the accused but

the entire society is at stake and therefore the

questions the Judge puts and the answers accused

gives may be beyond narrow constraints of the

Evidence Act. In the words of the learned Chief

37

Justice the position of Court in an exercise under

section 235(2) is as follows:

"2. .........The Court, while on the question of

sentence, is in an altogether different

domain in which facts and factors which

operate are of an entirely different order

than those which come into play on the

question of conviction...."

(para 2, page 13 of the report)

61. To the same effect is the judgment of Ahmadi, J. (as

His Lordship then was) in Allauddin Mian and others

v. State of Bihar [(1989) 3 SCC 5]. Explaining the

purpose of section 235(2), this Court in Allauddin

Mian (supra) held that section 235(2) satisfies a

dual purpose; first of all it satisfies rules of

natural justice by according an opportunity to the

accused of being heard on the question of sentence.

Under such sentencing procedure the accused is given

an opportunity to place before the court all

relevant materials having a bearing on the question

of sentence. The Court opined that it is a salutary

principle and must be strictly observed and is not a

38

matter of mere formality. This Court further held

that in such hearing exercise the accused should be

given a real and effective opportunity to place his

antecedents, social and economic background etc.

before the court, for the court to take a fair

decision on sentence as otherwise the sentence would

be vulnerable.

62. The Court therefore opined:-

"10. ...... We think as a general rule the Trial

Courts should after recording the conviction

adjourn the matter to a future date and call

upon both the prosecution as well as the

defence to place the relevant material

bearing on the question of sentence before

it and thereafter pronounce the sentence to

be imposed on the offender...."

(para 10, page 21 of the report)

63. Therefore, it is clear from the purpose of section

235(2) as explained in the aforesaid cases, that the

object of hearing under section 235(2) being

intrinsically and inherently connected with the

39

sentencing procedure, the provision of section

354(3) which calls for recording of special reason

for awarding death sentence must be read conjointly

with section 235(2) of 1973 Code.

64. This Court is of the opinion that special reasons

can only be validly recorded if an effective

opportunity of hearing contemplated under section

235(2) of Cr.P.C. is genuinely extended and is

allowed to be exercised by the accused who stands

convicted and is awaiting the sentence.

65. These two provisions do not stand in isolation but

must be construed as supplementing each other as

ensuring the constitutional guarantee of a just,

fair and reasonable procedure in the exercise of

sentencing discretion by the court.

40 66. These changes in the sentencing structure reflect

the "evolving standards of decency" that mark the

progress of a maturing democracy and which is in

accord with the concept of dignity of the individual

- one of the core values in our Preamble to the

Constitution. In a way these changes signify a

paradigm shift in our jurisprudence with the gradual

transition of our legal regime from `rule of law' to

the `due process of law', to which this Court would

advert to in the latter part of the judgment.

67. The main issues which were considered in Bachan

Singh (supra) are indicated in para 15 of the

judgment, which is set out:

"15. The principal questions that fall to be

considered in this case are:

(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

Cr.P.C., 1973 (Act 2 of 1974) is

unconstitutional on the ground that it

41

invests the Court with unguided and

untrammelled discretion and allows death

sentence to be arbitrarily 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."

68. In upholding the constitutionality of section 302 of

Indian Penal Code and also the provisions of section

354(3) of 1973 Code the Constitution Bench in Bachan

Singh (supra) considered the evolution of our

Constitutional Jurisprudence from various decisions

of Constitution Bench of this Court in A.K. Gopalan

v. State of Madras (AIR (37) 1950 SC 27) and then

the decisions of this Court in Sakal Papers (P) Ltd.

& ors. v. Union of India (AIR 1962 SC 305), Naresh

Shridhar Mirajkar v. State of Maharashtra and

another (AIR 1967 SC 1), Rustom Cavasjee Cooper v.

Union of India [(1970) 1 SCC 248], Maneka Gandhi v.

Union of India and another [(1978) 1 SCC 248] and

several other decisions.

42 69. After considering all these Constitution Bench

decisions of this Court, the learned Judges held

that in the evolving mosaic of our Constitutional

Jurisprudence, specially after the decision of this

Court in Maneka Gandhi (supra), Article 21 of the

Constitution which guarantees life and personal

liberty has to be interpreted differently.

70. Article 21 as enacted in our Constitution reads as

under:

"No person shall be deprived of his life or

personal liberty except according to

procedure established by law."

71. But this Court in Bachan Singh (supra) held that in

view of the expanded interpretation of Article 21 in

Maneka Gandhi (supra), it should read as follows:

"136......No person shall be deprived of his

life or personal liberty except according to

fair, just and reasonable procedure

established by valid law.

43

72. In the converse positive form, the expanded

Article will read as below:

"A person may be deprived of his life or

personal liberty in accordance with fair,

just and reasonable procedure established by

valid law."

(See para 136 page 730 of the report)

73. This epoch making decision in Maneka Gandhi (supra)

has substantially infused the concept of due process

in our constitutional jurisprudence whenever the

court has to deal with a question affecting life and

liberty of citizens or even a person.

74. Krishna Iyer, J. giving a concurring opinion in

Maneka Gandhi (supra) elaborated, in his inimitable

style, the transition from the phase of rule of law

to due process of law. The relevant statement of law

given by the learned Judge is quoted below:

44 "81.......'Procedure established by law', with

its lethal potentiality, will reduce life

and liberty to a precarious plaything if we

do not ex necessitate import into those

weighty words an adjectival rule of law,

civilised in its soul, fair in its heart and

fixing those imperatives of procedural

protection absent which the processual tail

will wag the substantive head. Can the

sacred essence of the human right to secure

which the struggle for liberation, with 'do

or die' patriotism, was launched be sapped

by formalistic and pharisaic prescriptions,

regardless of essential standards? An

enacted apparition is a constitutional,

illusion. Processual justice is writ

patently on Article 21. It is too grave to

be circumvented by a black letter ritual

processed through the legislature."

(Para 81 page 337 of the report)

75. Immediately after the decision in Maneka Gandhi

(supra) another Constitution Bench of this Court

rendered decision in case of Sunil Batra v. Delhi

Administration & ors. [(1978) 4 SCC 494]

specifically acknowledged that even though a clause

like the 8th Amendment of the United States

Constitution and concept of `due process' of

American Constitution is not enacted in our

45

Constitution text, but after the decision of this

Court in R.C. Cooper (supra) and Maneka Gandhi

(supra) the consequences is the same. The

Constitution Bench of this Court in Sunil Batra

(supra) speaking through Krishna Iyer, J held:

"52. True, our Constitution has no `due

process' clause or the VIII Amendment; but,

in this branch of law, after Cooper (supra)

and Maneka Gandhi (supra), the consequence

is the same."

76. The Eighth Amendment (1791) to the Constitution of

United States virtually emanated from the English

Bill of Rights (1689). The text of the Eighth

Amendment reads, "Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted." The English Bill of

Rights drafted a century ago postulates, "That

excessive bail ought not to be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted."

46 77. Our Constitution does not have a similar provision

but after the decision of this Court in Maneka

Gandhi's case (supra) jurisprudentially the position

is virtually the same and the fundamental respect

for human dignity underlying the Eighth Amendment

has been read into our jurisprudence.

78. Until the decision was rendered in Maneka Gandhi

(supra), Article 21 was viewed by this Court as

rarely embodying the Diceyian concept of rule of law

that no one can be deprived of his personal liberty

by an executive action unsupported by law. If there

was a law which provided some sort of a procedure it

was enough to deprive a person of his life or

personal liberty. In this connection, if we refer

to the example given by Justice S.R. Das in his

judgment in A.K. Gopalan (supra) that if the law

provided the Bishop of Rochester `be boiled in oil'

it would be valid under Article 21. But after the

47

decision in Maneka Gandhi (supra) which marks a

watershed in the development of constitutional law

in our country, this Court, for the first time, took

the view that Article 21 affords protection not only

against the executive action but also against the

legislation which deprives a person of his life and

personal liberty unless the law for deprivation is

reasonable, just and fair. And it was held that the

concept of reasonableness runs like a golden thread

through the entire fabric of the Constitution and it

is not enough for the law to provide some semblance

of a procedure. The procedure for depriving a

person of his life and personal liberty must be

eminently just, reasonable and fair and if

challenged before the Court it is for the Court to

determine whether such procedure is reasonable, just

and fair and if the Court finds that it is not so,

the Court will strike down the same.

48 79. Therefore, `law' as interpreted under Article 21

by this Court is more than mere `lex'. It implies a

due process, both procedurally and substantively.

80. Thus, the due process concept and the values of

Eighth Amendment of the U.S. Constitution, which

have been incorporated in our Constitution, are

virtually articulated through the procedural

safeguards of section 235(2) read with section

354(3) of 1973 Code. This marks the maturing of our

criminal jurisprudence from the stage of rule of law

to the realm of due process of law by experiencing

the vicissitudes of a fascinating journey for about

three decades of judicial decision making by this

Court from A.K. Gopalan (supra) to Maneka Gandhi

(supra).

81. In fact the Constitution Bench in Bachan Singh

(supra) has construed the sentencing structure in

Section 235(2) and 354(3) of 1973 Code through the

49

prism of due process concept and only then it upheld

the constitutionality of death sentence.

82. However, in the impugned judgment, the High Court

failed to appreciate this ratio in Bachan Singh

(supra). In the instant case to confirm the death

sentence of the appellant, the High Court relied on

the judgment of this Court in Dayanidhi Bisoi v.

State of

Orissa [(2003) 9 SCC 310], wherein the

accused was held guilty of murder of three persons

of a family comprising husband, wife and their three

year old daughter. In that case, the accused, who is

a member of the family of the deceased, committed

the criminal act for monetary benefits while the

deceased were sleeping. In Dayanidhi Bisoi (supra)

this Court, while awarding death sentence to the

accused, relied on its previous decision in Ravji

alias Ram Chandra v. State of Rajasthan [(1996) 2

SCC 175] and Surja Ram v. State of Rajasthan [(1996)

6 SCC 271].

50 83. In Ravji (supra), a Division Bench of this Court

observed that it is only characteristics relating to

the crime, to the exclusion of the ones relating to

the criminal, which are relevant for sentencing in

the criminal trial. In paragraph 24 at page 187 of

the report, this Court held:

"24. .....The crimes had been committed with

utmost cruelty and brutality without any

provocation, in a calculated manner. It is

the nature and gravity of the crime but not

the criminal, which are germane for

consideration of appropriate punishment in

a criminal trial. The Court will be failing

in its duty if appropriate punishment is not

awarded for a crime which has been committed

not only against the individual victim but

also against the society to which the

criminal and victim belong. The punishment

to be awarded for a crime must not be

irrelevant but it should conform to and be

consistent with the atrocity and brutality

with which the crime has been perpetrated,

the enormity of the crime warranting public

abhorrence and it should "respond to the

society's cry for justice against the

criminal."

84. Ravji (supra) case was followed in as many as six

cases where death sentence was imposed. However,

this Court in Santosh Kumar Satishbhushan Bariyar v.

51 State

of Maharashtra [(2009) 6 SCC 498] pointed out

that Ravji's (supra) case and the six subsequent

cases in which Ravji (supra) was followed were

decided per incuriam, as the law laid down therein

is contrary to the law laid by the Constitution

Bench of the Supreme Court in Bachan Singh. In

Bachan Singh (supra), this Court held that before

giving death sentence Court should not confine its

consideration principally or merely to the

circumstances connected with the particular crime

but must also give due consideration to the

circumstances of the criminal. His Lordship Sinha,

J. in para 63 at page 529 of Bariyar (supra)

observed that:

"63. We are not oblivious that Ravji case

has been followed in at least 6 decisions of

this Court in which death punishment has

been awarded in last 9 years, but, in our

opinion, it was rendered per

incuriam. Bachan Singh specifically noted

the following on this point:

"163...The present legislative policy

discernible from Section 235(2) read

with Section 354(3) is that in fixing

the degree of punishment or making the

choice of sentence for various

52

offences, including one under

Section 302 of the Penal Code, the court

should not confine its consideration

`principally' or merely to the

circumstances connected with the

particular crime, but also give due

consideration to the circumstances of

the criminal."

Shivaji v. State of Maharashtra - (2008) 15

SCC 269, Mohan Anna Chavan v. State of

Maharashtra - (2008) 7 SCC

561, Bantu v. State of U.P. - (2008) 11 SCC

113, Surja Ram v. State of Rajasthan -

(1996) 6 SCC 271; Dayanidhi Bisoi v. State of

Orissa - (2003) 9 SCC 310 and State of

U.P. v. Sattan - (2009)4 SCC 736 are the

decisions where Ravji has been followed. It

does not appear that this Court has

considered any mitigating circumstance or a

circumstance relating to criminal at the

sentencing phase in most of these cases. It

is apparent that Ravji has not only been

considered but also relied upon as authority

on the point that in heinous crimes,

circumstances relating to criminal are not

pertinent."

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

53

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:

"206. Dr. Chitaley has suggested these

mitigating factors:

Mitigating circumstances:-In the

exercise of its discretion in the above

cases, the court shall take into account the

following circumstances:

(1) That the offence was committed under the

influence of extreme mental or emotional

disturbance.

(2) The age of the accused. If 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.

54

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 impaired his capacity to

appreciate the criminality of his conduct."

87. In this connection the submission of the learned

counsel that the State must by evidence prove that

the accused does not satisfy conditions No.3 and 4

above is of great importance as this Court accepted

that those submissions must be given `great weight

in the determination of sentence'.

88. However, the categories of mitigating and

aggravating circumstances are never close and no

court can give an exhaustive list of such

circumstances. For instance, a crime involving a

55

terrorist attack may place the case under a

completely different situation.

89. In the instant case State has failed to show that

the appellant is a continuing threat to society or

that he is beyond reform and rehabilitation. On the

other hand, in paragraph 77 of the impugned judgment

the High Court observed as follows:

"We have no evidence that the appellant is

incapable of being rehabilitated in society.

We also have no evidence that he is capable

of being rehabilitated in society. This

circumstance remains a neutral circumstance."

90. It is clear from the aforesaid finding of the High

Court that there is no evidence to show that the

accused is incapable of being reformed or

rehabilitated in society and the High Court has

considered the same as a neutral circumstance. In

our view the High Court was clearly in error. The

very fact that the accused can be rehabilitated in

56

society and is capable of being reformed, since the

State has not given any evidence to the contrary, is

certainly a mitigating circumstance and which the

High Court has failed to take into consideration.

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.

91. On the other hand, while considering the aggravating

circumstances, the High Court appears to have been

57

substantially influenced with the brutality in the

manner of committing the crime. It is no doubt that

the murder was committed in this case in a very

brutal and inhuman fashion, but that alone cannot

justify infliction of death penalty. This is held in

several decisions of this Court. Reference in this

case may be made to the decision of this Court in

Dharmendrasinh alias Mansinh Ratansinh v. State of

Gujarat [(2002) 4 SCC 679] wherein the accused

suspected the character of his wife and under the

belief that his two sons were not born of him,

murdered those two innocent children. This Court

held that the act of accused was heinous,

unpardonable and condemnable, but this Court

commuted the death sentence to life sentence inter

alia on the ground that accused had no previous

criminal record and the chances of repetition of

such criminal acts at his hands making the society

further vulnerable are not apparent. In coming to

this conclusion this Court observed:

58 "20. .... A number of factors are to be taken

into account namely, the motive of the

crime, the manner of the assault, the impact

of the crime on the society as a whole, the

personality of the accused, circumstances

and facts of the case as to whether the

crime committed, has been committed for

satisfying any kind of lust, greed or in

pursuance of anti-social activity or by way

of organized crime, drug-trafficking or the

like. Chances of inflicting the society with

the similar criminal act that is to say

vulnerability of the members of the society

at the hands of the accused in future and

ultimately as held in several cases,

mitigating and aggravating circumstances of

each case have to be considered and a

balance has to be struck..."

(Para 20, page 695 of the report)

92. Again in Panchhi & ors. v. State of U.P. [(1998) 7

SCC 177] four members of a family comprising two

adult male and female, murdered four members of

neighbouring family comprising an adult male and

female, an old lady and a child of five years of age

in most heinous, brutal and diabolical manner to

fulfill their vengeance. This Court while commuting

their death sentence to life imprisonment observed:-

"20. ..... No doubt brutally looms large in

the murders in this case particularly of the

old and also the tender-aged child. It may

be that the manner in which the killings

were perpetrated may not by itself show any

59

lighter side, but that is not very peculiar

or very special in these killings. Brutality

of the manner in which a murder was

perpetrated may be a ground but not the sole

criterion for judging whether the case is

one of the "rarest of rare cases" as

indicated in Bachan Singh's case. In a way

every murder is brutal, and the difference

between one from the other may be on account

of mitigating or aggravating features

surrounding the murder."

(para 20, page 183 of the report)

(Emphasis supplied)

93. In Haru Ghosh v. State of West Bengal [(2009) 15 SCC

551] wherein the accused, a previous convict of

murder and facing a sentence of life imprisonment

was out on bail when his appeal was pending before

the High Court, murdered a woman and her child

because the deceased woman's husband asked the

accused not to sell illicit liquor in the locality.

94. The facts in Haru Ghosh (supra) are that one day

accused entered the house of deceased and started

strangulating the child. On the intervention of the

mother the child was released from the clutches of

accused. The mother took the child to a nearby

60

tubewell and while she was pouring water on

unconscious child's face the accused got hold of a

sharp weapon from a by-stander and assaulted the

mother and child to death.

95. This Court observed that this was a dastardly murder

of two helpless persons for no fault on their part.

But this Court commuted the death sentence to life

imprisonment taking into consideration following

factors, firstly that there was no pre-meditation in

the act of the accused. This was at the spur of the

moment as accused did not come armed with any

weapon. Secondly it is unknown under what

circumstances accused entered the house of deceased

and what prompted him to assault the boy. Thirdly

the cruel manner in which the murder was committed

cannot be the guiding factor in favour of death

sentence. Fourthly the accused himself has two minor

children.

61 96. This Court observed as under:

"39. ....... the cruel manner in which the

murder was committed and the subsequent

action on the part of the accused in

severing the parts of the body of the

deceased, do not by themselves, become the

guiding factor in favour of the death

sentence"

(para 39, page 564 of the report)

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

62

mitigating circumstances in favour of the appellant,

were not properly considered.

99. The ratio in Bachan Singh (supra) has received

approval by the international legal community and

has been very favourably referred to by David

Pannick in `Judicial Review of the Death Penalty:

Duckworth' (see page 104-105).

100. Roger Hood and Carolyn Hoyle in their treaties on

`The Death Penalty' Fourth Edition (Oxford) have

also very much appreciated the Bachan Singh ratio

(See page 285).

101. The concept of `rarest of rare' which has been

evolved in Bachan Singh (supra) by this Court is

also the internationally accepted standard in cases

of death penalty.

63 102. Reference in this connection may also be made to

the right based approach in exercising discretion in

death penalty as suggested by Edward Fitzgerald, the

British Barrister. [Edward Fitzgerald: The

Mitigating Exercise in Capital Cases in Death

Penalty Conference (3-5, June, Barbados: Conference

Papers and Recommendations]

103. It has been suggested therein that right approach

towards exercising discretion in capital cases is to

start from a strong presumption against the death

penalty. It is argued that `the presence of any

significant mitigating factor justifies exemption

from the death penalty even in the most gruesome

cases' and Fitzgerald argues:

"Such a restrictive approach can be

summarized as follows: The normal sentence

should be life imprisonment. The death

sentence should only be imposed instead of

the life sentence in the `rarest of rare'

cases where the crime or crimes are of

exceptional heinousness and the individual

64

has no significant mitigation and is

considered beyond reformation."

[Quoted in The Death Penalty: Roger Hood and

Hoyle, 4th Edition Oxford, Page 285]

104. Opposing mandatory death sentence, United Nations

in its interim report to the General Assembly in

2000 advanced the following opinion:

"The proper application of human rights law-

especially of its provision that `no one

shall be arbitrarily deprived of his life'

and that `no one shall be subjected

to....cruel, inhuman or degrading....punishment'

- requires weighing factors that will not be

taken into account in the process of

determining whether a defendant is guilty of

committing a `most serious crime'. As a

result, these factors can only be taken into

account in the context of individualized

sentencing by the judiciary in death penalty

cases...The conclusion, in theory as well as

in practice, was that respect for human

rights can be reliably ensured in death

penalty cases only if the judiciary engages

in case-specific, individualized sentencing

that accounts for all of the relevant

factors....It is clear, therefore, that in

death penalty cases, individualized

sentencing by the judiciary is required to

prevent cruel, inhuman or degrading

punishment and the arbitrary deprivation of

life."

[The Death Penalty: Roger Hood and Hoyle,

4th Edition, Oxford, Page 281]

65

105. Taking an overall view of the facts in these

appeals and for the reasons discussed above, we hold

that death sentence cannot be inflicted on the

appellant since the dictum of Constitution Bench in

Bachan Singh (supra) is that the legislative policy

in Section 354(3) of 1973 Code is that for person

convicted of murder, life imprisonment is the rule

and death sentence, an exception, and the mitigating

circumstances must be given due consideration.

Bachan Singh (supra) further mandates that in

considering the question of sentence the Court must

show a real and abiding concern for the dignity of

human life which must postulates resistance to

taking life through law's instrumentality. Except in

`rarest of rare cases' and for `special reasons'

death sentence cannot be imposed as an alternative

option to the imposition of life sentence.

106. For the reasons discussed above, we are of the

view that in the facts of this case the death

66

sentence imposed by the High Court cannot be

sustained and the death sentence imposed upon the

appellant is substituted by the sentence of

imprisonment for life.

107. The appeals are allowed to the extent indicated

above. The conviction of the appellant is upheld and

he is to serve out the life sentence.

.......................J.

(D.K. JAIN)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

September 28, 2011