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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.249-250 OF 2011

DEEPAK RAI Appellant(s)

VERSUS

STATE OF BIHAR Respondent(s)

WITH

CRIMINAL APPEAL NOS.1747-1748 OF 2011

JAGAT RAI AND ANR. Appellant(s)

VERSUS

STATE OF BIHAR Respondent(s)

J U D G M E N T

H.L. Dattu, J:

1. These appeals are directed against the

judgment and order passed by the High

Court of Judicature at Patna in Death

Reference No. 6 of 2009 and Criminal

Page 2 2

Appeal(DB) Nos. 989 of 2009 and 158

of 2010, dated 19.08.2010. By the

impugned judgment and order, the High

Court has confirmed the judgment of

conviction, dated 17.09.2010 and

order of sentence, dated 30.10.2009

passed by the Additional Sessions

Judge cum FTC No. 2, Vaishali at

Hazipur in Sessions Trial No. 195 and

571 of 2006, whereby the learned

Sessions Judge has convicted the

three accused-appellants for offence

under Sections 120B, 148, 302 read

with 149, 307 read with 149, 326,

429, 436 and 452 of Indian Penal

Code, 1860 (for short ‘the IPC’) and

sentenced them to death.

Facts:

2. The Prosecution case in a nutshell is:

On the fateful night of 01.01.2006,

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the deceased informant (PW-7) was

sleeping in the Varanda of his house

and his wife alongwith the children,

two daughters aged 12 and 10 years,

respectively and three sons aged 8, 6

and 3 years, respectively were

sleeping in the room inside the

house. At around 01.00 A.M., he was

awakened by the sound of footsteps of

several people. In the dim light of a

night bulb and further from their

voices, he identified the persons who

had come near his house armed with

lethal weapons as appellant-accused

persons and nine other villagers

besides 10-11 unknown persons. Before

the informant could escape,

appellant-accused-Jagat Rai(A1) and

Deepak Rai(A2) caught hold of him and

pushed him on the ground whereafter

3-4 unknown persons got over his body

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and gagged him. Then A1 instructed

few others to surround the house from

all sides and sprinkle kerosene over

it, while the other accused persons

locked the door of the room where the

informant’s wife was sleeping

alongwith the children and set the

house on fire trapping them inside.

Thereafter, they sprinkled kerosene

over the informant’s body and held

him to the ground while A1 set the

informant’s mouth on fire by lighting

a matchstick. Upon rising of a

blazing flash of fire, the accused

persons fled away leaving the

informant behind. While the informant

also attempted to escape, A2 fired at

him but the informant managed an

escape and raised alarm. On hearing

such noise, the informant’s four

brothers and other family members who

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resided in the adjoining houses woke

up, reached the spot and witnessed

the accused persons running away

while the informant was on fire.

Until then the fire in informant’s

house had reached its enormity,

swallowing the informant’s family and

injuring the buffalo and calf on the

property. The informant (PW-7) was

rushed to the Primary Health Centre,

Raghopur.

3. The fardbayan was recorded at 7:30 AM,

on the basis of which an FIR was

registered against the three

appellant-accused and few others for

the offence under Sections 147, 148,

149, 452, 342, 324, 326, 427, 436,

307 and 302 of the IPC at 9:00 AM on

01.01.2006. The motive of the

occurrence was alleged to be the

informant’s refusal even after

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consistent threats by A1 to withdraw

the FIR lodged by him for the theft

of informant’s buffalo against A1 and

his family, in pursuance of which two

members of his family were arrested.

Upon investigation, the chargesheet

was drawn against the aforesaid

accused persons on 21.03.2006. The

learned Judicial Magistrate, First

Class, Hazipur, Vaishali bifurcated

the case of the absconded accused

persons-A1, A2 and 8 others and

committed the case of Bacchababu Rai

(A3) and 5 others for trial as

Sessions Trial No. 195 of 2006, by

order dated 06.05.2006. Upon arrest

of the accused persons-A1, A2 and one

other, their case was separated from

other absconder-accused persons and

committed to trial as Sessions Trial

No. 571 of 2006, by order dated

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15.12.2006.

4. While in Sessions Trial No. 195 of

2006, 17 witnesses were examined and

14 exhibits were produced, in

Sessions Trial No.571 of 2006, 14

witnesses were examined and 11

exhibits were produced by the

prosecution. Since both the cases

arose out of the same FIR, they were

consolidated by order dated

12.01.2008, whereafter their trial

proceeded together. While A2 examined

8 witnesses, other two accused

persons- Binay Rai and Ranjay Rai

examined five and three witnesses,

respectively in their defence.

5. Since the evidence of prosecution

witnesses recorded in the two trials

corroborates the prosecution case in

material particulars, brevitatis

causa and to avoid repetition we

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would only notice them once. The

informant (PW-7) has identified the

appellant-accused persons, supported

the prosecution case in his evidence

and testified in respect of the time

and manner of occurrence of the

fateful incident and the motive of

the accused persons. PWs 1, 2, 3 and

4 are the brothers of PW-7 who

resided adjacent to PW-7’s house.

They have identified the accused

persons and further corroborated the

prosecution case in respect of time

of occurrence and motive of the

appellant-accused persons. PW-1 has

stated that as soon as he heard PW-

7’s shrieks and noise from the

blazing fire, he rushed outside his

house and witnessed the accused

persons fleeing away. He found PW-7

on fire and immediately covered him

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with a blanket to douse it;

whereafter, he along with others

attempted to set the fire off at PW-

7’s house but the fire having

transformed into a conflagration it

was too late to save the six deceased

persons. PW-5 (wife of PW-2), PW-6

(mother of PW-7), PW-14 (wife of PW-

1), PW-15 (sister of PW-7) and PW-16

(wife of PW-4) have also supported

the prosecution case in respect of

PW-1’s account of the incident, i.e.,

the fleeing away of the three

appellant-accused persons along with

others and the motive of the accused

persons behind the incident. PW-8,

the Doctor who conducted post mortem

examination of the six deceased

persons, has corroborated the

prosecution case that the death

occurred by 100% burn injuries. PW-

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10, the Doctor who treated PW-7, has

testified in respect of the injuries

suffered by PW-7. His evidence

alongwith the post-mortem report

corroborate the time and manner of

the fateful incident. Further, PW-11

(the Investigating Officer) supported

the prosecution case with regard to

the time and place of the occurrence

and the presence of charred dead

bodies of the six deceased persons.

The Trial Court discarded the

testimonies of the defence witnesses

at the outset and proceeded with the

trial.

6. Upon meticulous consideration of the

evidence on record and the

submissions made by the parties, the

learned Sessions Judge has observed

that even though the witnesses

examined by the prosecution are

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related to the victims, their

testimonies when considered with due

care and caution are corroborated by

the evidence of informant (PW-7), the

post mortem reports, evidence of the

Doctors(PW-9 and 10) and the evidence

of PW-11, the Investigating Officer

and therefore, cannot be rejected on

the prima facie ground of them being

interested witnesses. The Trial Court

has believed the aforesaid evidence

corroborating the prosecution case in

respect of A1, A2 and A3; however,

doubted the presence of other accused

persons since their names have

neither been mentioned in the

fardbayan nor has the evidence

produced against them proved their

offence beyond reasonable doubt. In

light of the aforesaid observations,

the Trial Court has reached the

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conclusion that the three appellant-

accused persons are guilty of the

aforesaid offence and has convicted

them accordingly while acquitting the

others, by judgment dated 17.09.2009.

Further, after affording an

opportunity of hearing to the

appellant-accused persons on the

question of sentence, the Trial Court

has sentenced them to death, by order

dated 30.10.2009, relevant paragraphs

of which are reproduced as under:

“Heard both sides on the question of

sentence on behalf of the held guilty

accused Bachcha Babu Rai, Jagat Rai,

Bipat Rai alias Deepak Rai, it has been

submitted that before this, they have

not been punished in any case of them

Bipat Rai @ Deepak is a retired military

personnel. Keeping in mind, their age

has also first conviction, minimum of

sentence may be inflicted.

On behalf of the

prosecution it has been said that the

guilty held persons Bachcha Babu Rai,

Jagat Rai, Bipat Rai@ Deepak Rai have

committed a heinous offence and their

offence falls under the category of RARE

OF RAREST. Their heinous crime has

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ruined the informant of this case, his

wife and five children. So far Bipat

Rai is concerned, he is a retired

military personnel his conduct should be

all the more decent. They are not of

tender age nor old. They do not deserve

any mercy and they deserve death

sentence. In the light of the reasoning

of both sides as also on an

appreciation, it is manifest, that the

occurrence is of night when the

informant, his wife and five minor

children and cattle all have been burnt

to death. The informant also

subsequently died in this way, the

entire family is ruined. In the light

of the guidelines as given by Hon’ble

Supreme Court, this case falls under the

heading of RARE OF RAREST cases.

Because of this the guilty held accused

persons Bachcha Babu Rai, Jagat Rai and

Bipat Rai allias Deepak Rai are

sentenced to death or offence u/s 302/

149 IPC. …”

7. Aggrieved by the aforesaid judgment

and order, the three appellant-

accused persons filed appeals before

the High Court which were heard

alongwith the Death Reference No. 6

of 2009 and disposed of by a common

judgment and order, dated 19.08.2010.

The High Court has elaborately dealt

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with the evidence on record and

extensively discussed the judgment

and order of the Trial Court in order

to ascertain the correctness or

otherwise of the conviction and

sentence awarded to the appellant-

accused persons. The High Court has

observed that since, the informant is

the only witness who was present at

the scene of crime, his testimony

alone could substantiate upon the

specific role of accused persons in

the commission of the ghastly

offence. In so far as the

identification of the appellant-

accused persons, the High Court has

observed that the informant in the

fardbeyan specifically mentions their

names and, infact, attributes

specific roles to them in the

commission of the offence, i.e., A1

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commanding the house to be set on

fire and lighting the matchstick to

set the informant’s mouth on fire and

later, when the informant was

attempting to escape, A2 firing at

the informant. Further, that during

the commission of the offence the

accused persons were in close

proximity to the informant and the

presence of dim light of bulb in the

night and the illumination by flames

of burning house coupled with them

being known to the informant

establishes their identity in the

evidence of informant, which is

supplemented and strengthened by the

evidence of PWs 1, 2, 3, 4, 5 and 6.

The High Court has further observed

that the prosecution case in respect

of the time and place of occurrence

and the factum of accused persons

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fleeing the spot of occurrence

immediately after setting the house

on fire causing death of six persons

by burning them alive and injury to

the informant has been well

established by cogent, reliable and

unimpeachable eye-witnesses and

further corroborated by the

testimonies of the Doctors, post-

mortem report, medical report and the

evidence of Investigating Officer. On

the basis of the aforesaid, the High

Court has concluded towards the guilt

of the accused appellants and

sentenced them as follows:

“…since the occurrence is ghastly murder

of wife and five children of the

informant by closing in room for not

withdrawing the case of theft of buffalo

shocked the entire community bringing

the case in the category of rare of

rarest to attract the maximum punishment

and hence the reference is answered in

the affirmative and I do not find any

merit in the two appeals and hence the

appeals are dismissed……”

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8. Aggrieved by the aforesaid conviction

and sentence, the appellants are

before us in these appeals. The

appeals before us are limited to the

question of sentence.

Submissions:

9. We have heard Dr. Sumant Bharadwaj

learned counsel appearing for A2,

Shri Ramesh Chandra Mishra, learned

counsel appearing for A1 and A3 and

Shri Nagendra Rai, learned senior

counsel appearing for the respondent-

State.

10. Dr. Bharadwaj would submit that the

Courts below have erred in sentencing

A2 as the reasons recorded by the

Courts below do not conform to the

statutory mandate prescribed under

Section 354(3) of the Code of

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Criminal Procedure, 1973 (for short

‘the Code’), which require the

judgment to record “reasons” in case

of sentence of life imprisonment and

“special reasons” in case of death

sentence. He would submit that the

since no extraordinary reasons have

been assigned by the Courts below to

sentence the appellant to death

instead of a less harsher sentence

and that this Court in appellate

jurisdiction cannot go into the same

for the first time while confirming

the death sentence, the matter

requires to be remanded to the Trial

Court for fresh consideration on the

question of sentence as per Section

354(3) of the Code. Further, he would

place reliance upon the judgments of

this Court in Ambaram v. State of

M.P., (1976) 4 SCC 298, Balwant Singh

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v. State of Punjab, (1976) 1 SCC 425,

Dagdu v. State of Maharashtra, (1977)

3 SCC 68, Muniappan v. State of T.N.,

(1981) 3 SCC 11 and Rajesh Kumar v.

State, (2011) 13 SCC 706 ; wherein

this Court has held that “special

reasons” are essential for awarding

death sentence under Section 354(3)

of the Code and in absence of such

reasons has commuted the sentence

passed by the Courts below from death

to life imprisonment and submit that

since, in the instant case, no

“special reasons” were recorded by

the Courts below while sentencing the

appellants, the sentence of the

appellants ought to be commuted to

life imprisonment.

11. Shri Mishra would assail the sentence

awarded by the Trial Court and

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confirmed by the High Court and

submit that in the instant case

mitigating circumstances

overwhelmingly outweigh the

aggravating circumstances and

therefore, ends of justice would only

be achieved by commuting the sentence

of the two appellant-accused persons,

A1 and A3, from death to imprisonment

for life. He would put forth the

following factors in support of his

submission:

“Mitigating Circumstances :

1.Appellants are not hard core criminals,

2.They are not threat/ menace to the

Society,

3.They have no criminal antecedent/

background,

4.They are not antisocial elements,

5.Their conduct in Jail has been

satisfactory,

6.The State has failed to prove that they

are incapable of being reformed

7.They have been in Jail for about seven

years,

8.Delay of seven years in execution of

death sentence confirmed in death

anticipating imminent death any moment,

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9.Death sentence is exception and life-

imprisonment is rule,

10.Global move to abolish death

sentence. 138 nations have abolished

death sentence while 59 countries

including India have retained death

sentence. (2009) 6 SCC 498. Relevant

page- 544, paras 111-112 ,

11.Jagat Rai at the time of commission

of offence was 48 years while Bachcha

Babu Rai was 43 years, comparatively

young,

12.Offence was committed when the

appellant were under the influence of

extreme of mental disturbance due to

pendency of criminal case,

13.There is every probability that the

appellants can be reformed and

rehabilitated,

14.All the four main objectives which

state intends to achieve namely

deterrence, prevention, retribution and

reformation can be achieved by keeping

the appellants alive.

Aggravating Circumstances:

1.It was a planned, cold-blooded brutal

murder,

2.Entire family was wiped out.…”

12. A contrario Shri Rai would support the

judgment and order passed by the

Courts below convicting the

appellants of the aforesaid offence

and sentencing them to death. He

would submit that the reasons

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recorded by the Courts below fall

within the statutory requirements

under Section 354(3) of the Code as

well as the parameters laid down by

this Court for recording “special

reasons” while sentencing a convict

to death. He would distinguish the

cases cited by Shri Bharadwaj as

cases wherein the sentence of the

accused persons was commuted due to

reasons besides absence of “special

reasons” for sentencing the accused

therein in the judgments and orders

of the Courts below and further place

reliance upon the decision of this

Court in Gurdev Singh v. State of

Punjab, (2003) 7 SCC 258 amongst

others, wherein this Court has

sentenced the accused persons therein

who were responsible for causing the

death of fifteen persons, besides

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causing grievous injuries to eight

others to death after balancing the

aggravating and mitigating

circumstances.

13. We have given our anxious

consideration to the materials on

record in its entirety, the

submissions made by the learned

counsel for the parties and the

judgments and orders of the Courts

below.

Issues for consideration:

14. The questions which fall for our

consideration and decision are first,

whether the reasons assigned by the

Courts below while sentencing the

appellants are “special reasons”

under Section 354(3) of the Code and

second, whether the offence committed

by the appellants fall into the

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category of “rarest of the rare”

cases so as to warrant death

sentence.

Cases cited by Shri Bharadwaj:

15. At the outset we would examine the

decisions relied upon by Dr.

Bharadwaj and examine whether at all

should the sentence in the present

case, for lack of special reasons

being assigned by the Trial Courts as

well as the High Courts, ought to be

commuted to imprisonment for life.

16. In Ambaram case (supra) , the

appellant-accused was tried along

with four others for murder of two

persons. It was the appellant therein

who shot one while his companions

assaulted the other to death with

sharp-edged weapons and a lathi. He

was convicted under Section 302 of

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the IPC by the Trial Court and

sentenced to death alone by the Trial

Court as well as the High Court

against which he had approached this

Court by filing a special leave

petition. It is pertinent to note

that his appeal was limited to the

question of sentence. This Court has

noticed the change in the law

introduced under Section 354(3) of

the Code in 1973 which confers

discretion on the Courts to inflict

the death sentence or the sentence of

life imprisonment each according to

the circumstances and exigencies of

each case but enjoins duty upon them

to justify it by giving special

reasons and reasons, respectively.

This Court has observed as follows:

“1. …The High Court has

not given any special reasons why Ambaram

has been singled out for the award of the

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extreme penalty. Nor do we find any such

reason to treat him differently in the

matter of sentence from his companions

who have been awarded the lesser penalty.

On this short ground we allow this appeal

and commute Ambaram’s death sentence to

that of imprisonment for life.”

(emphasis supplied)

17. In Balwant Singh v. State of Punjab,

(1976) 1 SCC 425 this Court has

observed as follows:

“4. …On the facts of this case, it is

true that the appellant had a motive to

commit the murder and he did it with an

intention to kill the deceased. His

conviction under Section 302 of the

Penal Code was justified but the facts

found were not such as to enable the

Court to say that there were special

reasons for passing the sentence of

death in this case.”

(emphasis supplied)

Thereafter, this Court has observed the error

committed by the High Court in applying the

principle of extenuating circumstances under

the older Code even after the present Code

coming into force in 1973 which requires the

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Court to assign special reasons while awarding

death penalty and observed the follows:

“5. The High Court has referred to the

two decisions of this Court namely in

Mangal Singh v. State of U.P., (1975) 3

SCC 290 and in Perumal v. State of

Kerala, (1975) 4 SCC 109 and has then

said:

“There are no extenuating

circumstances in this case and the

death sentence awarded to Balwant

Singh appellant by the Sessions

Judge is confirmed ....”

As we have said above, even after

noticing the provisions of Section

354(3) of the new Criminal Procedure

Code the High Court committed an error

in relying upon the two decisions of

this Court in which the trials were held

under the old Code. It wrongly relied

upon the principle of absence of

extenuating circumstances — a principle

which was applicable after the amendment

of the old Code from January 1, 1956

until the coming into force of the new

Code from April 1, 1974. In our judgment

there is no special reason nor any has

been recorded by the High Court for

confirming the death sentence in this

case. We accordingly allow the appeal on

the question of sentence and commute the

death sentence imposed upon the

appellant to one for imprisonment for

life.”

(emphasis supplied)

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18. In Muniappan v. State of T.N., (1981)

3 SCC 11, this Court has observed

that not only has the Trial Court

failed to provide adequate hearing to

the accused under Section 235(2), but

also it as well as the High Court

have not assigned appropriate reasons

while awarding and confirming the

sentence of the accused, respectively

and thus, reached the conclusion that

the sentence of death could not be

imposed.

19. Further, in Dagdu case (supra) and

Rajesh Kumar case (supra) this Court

has considered the facts and

circumstances of the case in its

entirety while balancing the

aggravating and mitigating

circumstances to decide upon the

adequacy of sentence awarded by the

Courts below and upon reaching such

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satisfaction that the case did not

fall into the category of “rarest of

the rare” warranting “special

reasons” for the award of death

sentence has commuted the sentence of

the accused.

20. Thus in the aforementioned cases, this

Court has upon examination of both-

the evidence on record and the

reasoning of the Courts below while

sentencing the accused reached an

independent conclusion that the facts

and circumstances of the case do not

warrant imposition of sentence of

death. Therefore, it is not the

absence or adequacy of “special

reasons” alone what weighed in the

mind of this Court while commuting

the sentence. The facts in toto and

procedural impropriety, if any loomed

large in exercising such discretion.

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Hence, the reliance placed on the

aforementioned decisions is rejected.

Scope of Article 136 vis-à-vis examination of

“special reasons”

21. Further, we are unable to accept the

submission that in any case the

failure on the part of the Court,

which has convicted an accused and

heard him on the question of sentence

but failed to express the “special

reasons” in so many words, must

necessarily entail a remand to that

Court for elaboration upon its

conclusion in awarding the death

sentence for the reason that while

exercising appellate jurisdiction

this Court cannot delve into such

reasons.

22. Since the appellants are before us by

way of an appeal by special leave, we

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would first examine the scope of

jurisdiction of this Court under

Article 136 of the Constitution of

India vis-à-vis criminal appeals.

23. The appellate jurisdiction vested in

this Court by virtue of Article 136

is not plain statutory but expansive

and extraordinary. The Court

exercises its discretion and grants

leave to appeal in cases where it is

satisfied that the same would

circumvent a grave miscarriage of

justice. Such jurisdiction is not

fettered by rules of criminal

procedure but guided by judicially

evolved principles.

24. We are fortified by the decision of

this Court in State of U.P. v.

Dharmendra Singh, (1999) 8 SCC 325,

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where while examining the

applicability of Section 377(3) of

the Code to an appeal under Article

136 has observed as follows :

“10. …A perusal of this section shows that

this provision is applicable only when the

matter is before the High Court and the

same is not applicable to this Court when

an appeal for enhancement of sentence is

made under Article 136 of the

Constitution. It is to be noted that an

appeal to this Court in criminal matters

is not provided under the Code except in

cases covered by Section 379 of the Code.

An appeal to this Court under Article 136

of the Constitution is not the same as a

statutory appeal under the Code. This

Court under Article 136 of the

Constitution is not a regular court of

appeal which an accused can approach as of

right. It is an extraordinary jurisdiction

which is exercisable only in exceptional

cases when this Court is satisfied that it

should interfere to prevent a grave or

serious miscarriage of justice, as

distinguished from mere error in

appreciation of evidence. While exercising

this jurisdiction, this Court is not bound

by the rules of procedure as applicable to

the courts below. This Court’s

jurisdiction under Article 136 of the

Constitution is limited only by its own

discretion (see Nihal Singh v. State of

Punjab, AIR 1965 SC 26. In that view of

the matter, we are of the opinion that

Section 377(3) of the Code in terms does

not apply to an appeal under Article 136

Page 33 33

of the Constitution.

11. This does not mean that this Court

will be unmindful of the principles

analogous to those found in the Code

including those under Section 377(3) of

the Code while moulding a procedure for

the disposal of an appeal under Article

136 of the Constitution. Apart from the

Supreme Court Rules applicable for the

disposal of the criminal appeals in this

Court, the Court also adopts such

analogous principles found in the Code so

as to make the procedure a “fair

procedure” depending on the facts and

circumstances of the case.”

(emphasis supplied)

25. More so, it is settled law that an

appeal by special leave under Article

136 is a continuation of the original

proceedings. In Moran M. Baselios

Marthoma Mathews II v. State of

Kerala, (2007) 6 SCC 517 , this Court

categorically observed as follows:

“13. We, therefore, are of the opinion

that despite the fact that the appellants

had insisted upon before the High Court

for issuance of a writ or in the nature of

mandamus upon the State or its officers

for the purpose of grant of police

protection as this Court has exercised its

appellate jurisdiction under Article 136

of the Constitution of India, it can and

should go into that question as well viz.

Page 34 34

as to whether the writ petition itself

could have been entertained or not,

particularly, when the appeal is a

continuation of the original proceedings .”

26. Further, this Court in Netai Bag v.

State of W.B., (2000) 8 SCC 262 while

observing that the scope of an appeal

under Articles 136 and 226 cannot be

wider than the earlier proceedings,

has noticed that the appeals under

said provisions are continuation of

the original proceedings.

27. Thus, jurisdiction of this Court in

appeal under Article 136 though

circumscribed to the scope of earlier

proceedings is neither fettered by

the rules of criminal procedure nor

limited to mere confirmation or

rejection of the appeal. This Court

while considering the question of

correctness or otherwise of the

sentence awarded by the Courts below

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has exercised discretionary

jurisdiction under Article 136 and

hence can not only examine the

reasons so assigned under Section

354(3) but also substantiate upon the

same, if need so be.

28. With the aforesaid in view, let us now

examine the issues before us.

Issue one: “Special reasons” under Section 354(3)

of the Code

29. Under Section 367(5) of the Code of

Criminal Procedure, 1898 (for short

“old Code”), the normal sentence to

be awarded to a person found guilty

of murder was death and imprisonment

for life was an exception. The

Amending Act 26 of 1955 amended

Section 367(5) of the old Code

resulting in vesting of discretion

with the Court to inflict the

sentence of life imprisonment or

Page 36 36

death each according to the

circumstances and exigencies of the

case. The amended Section 367(5) of

the old Code reads as follows:

“367. (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.”

30. The present Code which was legislated

in 1973 brought a shift in the then

existing penological trend by making

imprisonment for life a rule and

death sentence an exception. It makes

it mandatory for the Court in cases

of conviction for an offence

punishable with imprisonment for life

to assign reasons in support of the

sentence awarded to the convict and

further ordains that in case the

Court awards the death penalty,

“special reasons” for such sentence

Page 37 37

shall be stated in the judgment. It

reads as follows :

"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."

31. For the first time, this shift in

sentencing policy has been observed

by Krishna Iyer J. (as he then was)

in Ediga Anamma v. State of Andhra

Pradesh, (1974) 4 SCC 443 , as

follows:

“18. It cannot be emphasised too often

that crime and punishment are

functionally related to the society in

which they occur, and Indian conditions

and stages of progress must dominate the

exercise of judicial discretion in this

case.

…

21. It is obvious that the disturbed

conscience of the State on the vexed

question of legal threat to life by way

of death sentence has sought to express

itself legislatively, the stream of

tendency being towards cautious, partial

abolition and a retreat from total

Page 38 38

retention.”

(Also Ambaram case (supra), Joseph v.

State of Goa, (1977) 3 SCC 280 ,

Triveniben v. State of Gujarat )

32. Further, this Court in Harnam v.

State of U.P., (1976) 1 SCC 163

supplemented the aforesaid

observations and noted as follows:

“4. …The seminal trends in current

sociological thinking and penal strategy,

tampered as they are by humanistic

attitude and deep concern for the worth

of the human person, frown upon death

penalty and regard it as cruel & savage

punishment to be inflicted only in

exceptional cases. It is against this

background of legislative thinking which

reflects the social mood and realities

and the direction of the penal and

procedural laws that we have to consider

whether the tender age of an accused is a

fetor contra-indicative of death

penalty.”

33. In Allauddin Mian v. State of Bihar,

(1989) 3 SCC 5 this Court has

examined the purpose of inclusion of

“special reasons” clause as follows:

Page 39 39

“9. … When the law casts a duty on the

judge to state reasons it follows that he

is under a legal obligation to explain

his choice of the sentence. It may seem

trite to say so, but the existence of the

“special reasons clause” in the above

provision implies that the court can in

fit cases impose the extreme penalty of

death which negatives the contention that

there never can be a valid reason to

visit an offender with the death penalty,

no matter how cruel, gruesome or shocking

the crime may be… While rejecting the

demand of the protagonist of the

reformatory theory for the abolition of

the death penalty the legislature in its

wisdom thought that the “special reasons

clause” should be a sufficient safeguard

against arbitrary imposition of the

extreme penalty. Where a sentence of

severity is imposed, it is imperative

that the judge should indicate the basis

upon which he considers a sentence of

that magnitude justified. Unless there

are special reasons, special to the facts

of the particular case, which can be

catalogued as justifying a severe

punishment the judge would not award the

death sentence. It may be stated that if

a judge finds that he is unable to

explain with reasonable accuracy the

basis for selecting the higher of the two

sentences his choice should fall on the

lower sentence. In all such cases the law

casts an obligation on the judge to make

his choice after carefully examining the

pros and cons of each case. It must at

once be conceded that offenders of some

particularly grossly brutal crimes which

send tremors in the community have to be

firmly dealt with to protect the

community from the perpetrators of such

Page 40 40

crimes. Where the incidence of a certain

crime is rapidly growing and is assuming

menacing proportions, for example, acid

pouring or bride burning, it may be

necessary for the courts to award

exemplary punishments to protect the

community and to deter others from

committing such crimes. Since the

legislature in its wisdom thought that in

some rare cases it may still be necessary

to impose the extreme punishment of death

to deter others and to protect the

society and in a given case the country,

it left the choice of sentence to the

judiciary with the rider that the judge

may visit the convict with the extreme

punishment provided there exist special

reasons for so doing . …”

34. In Bachan Singh case (supra), while

determining the constitutional

validity of the death penalty, this

Court has examined the sentencing

procedure embodied in Section 354(3)

of the Code. Following issue was

framed by this Court in the aforesaid

context:

“15. (i)… (ii)…whether the sentencing

procedure provided in Section 354(3) of

the Code of Criminal Procedure, 1973 (2

of 1974) is unconstitutional on the

ground that it invests the court with

unguided and untrammelled discretion and

Page 41 41

allows death sentence to be arbitrarily

or freakishly imposed on a person found

guilty of murder or any other capital

offence punishable under the Penal Code

with death or, in the alternative, with

imprisonment for life.”

35. To answer the said issue, this Court

referred to and considered Jagmohan

Singh v. State of U.P. (which was

decided under the old Code) and

culled out several propositions from

that decision. Keeping in view of the

changed legislative policy, this

Court agreed with all the

observations in Jagmohan Singh case

(supra) but for two- first, that the

discretion in the matter of

sentencing is to be exercised by the

Judge after balancing all the

aggravating and mitigating

circumstances of the crime and

second, that while choosing between

the two alternative sentences

Page 42 42

provided in Section 302 of the IPC,

i.e., sentence of death and life

imprisonment, the court is

principally concerned with the

aggravating or mitigating

circumstances connected with the

particular crime under inquiry. This

Court observed that whilst under the

old Code, both the sentence of death

was the rule and life imprisonment

was an exception, Section 354(3) of

the Code has reversed the sentencing

policy with the legislative mandate

that if a sentence of death is to be

awarded, special reasons need to be

recorded by the Courts. That is to

say, the legislative policy now

virtually obviated the necessity of

balancing the aggravating and

mitigating circumstances for the

award of punishment in respect of an

Page 43 43

offence of murder. The Court observed

as follows in context of departures

from Jagmohan Singh case (supra) :

“164. (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 of the 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.”

36. In the aforesaid background this Court

observed that special reasons, in the

context of the said provision,

obviously mean “exceptional reasons”

founded on the exceptionally grave

circumstances relating to the crime

Page 44 44

as well as the criminal. It being

extremely difficult to catalogue such

special reasons, they have to be

construed in the facts of the case

and relative weight has to be given

to mitigating and aggravating

factors. This Court observed that

these two aspects are so intertwined

that isolation of one from the other

would defeat the mandate of law and

held with hope that in view of the

“broad illustrative guidelines” laid

down therein, the Courts:

“209. … will discharge the onerous

function with evermore scrupulous care

and humane concern, directed along the

highroad of legislative policy outlined

in Section 354(3) viz. that for persons

convicted of murder, life imprisonment is

the rule and death sentence an

exception.”

(Also: State of Maharashtra v. Goraksha Ambaji

Adsul, (2011) 7 SCC 437 ; Sangeet v. State of

Haryana, (2013) 2 SCC 452; Sandesh v. State of

Maharashtra, (2013) 2 SCC 479)

Page 45 45

37. In Swamy Shraddananda (2) v. State of

Karnataka, (2008) 13 SCC 767 this

Court opined that the term “special

reasons” as explained in the Bachan

Singh case (supra) indicates a

relative category based on comparison

with other cases under Section 302 as

under:

“44. The matter can be looked at from

another angle. In Bachan Singh it was

held that the expression “special

reasons” in the context of the provision

of Section 354(3) obviously means

“exceptional reasons” founded on the

exceptionally grave circumstances of the

particular case relating to the crime as

well as the criminal. It was further said

that on conviction for murder and other

capital offences punishable in the

alternative with death under the Penal

Code, the extreme penalty should be

imposed only in extreme cases. In

conclusion it was said that the death

penalty ought not to be imposed save in

the rarest of rare cases when the

alternative option is unquestionably

foreclosed. Now, all these expressions

“special reasons”, “exceptional reasons”,

“founded on the exceptional grave

circumstances”, “extreme cases” and “the

rarest of rare cases” unquestionably

indicate a relative category based on

Page 46 46

comparison with other cases of murder.

Machhi Singh, for the purpose of

practical application sought to translate

this relative category into absolute

terms by framing the five categories. (In

doing so, it is held by some, Machhi

Singh considerably enlarged the scope for

imposing death penalty that was greatly

restricted by Bachan Singh).”

38. The said five categories of rarest of

the rare crimes delineated in Macchi

Singh case (supra) are as follows:

“I. Manner of commission of murder

33. When the murder is committed in an

extremely brutal, grotesque, diabolical,

revolting or dastardly manner so as to

arouse intense and extreme indignation of

the community. For instance,

(i) when the house of the victim is set

aflame with the end in view to roast him

alive in the house.

(ii) when the victim is subjected to

inhuman acts of torture or cruelty in

order to bring about his or her death.

(iii) when the body of the victim is cut

into pieces or his body is dismembered in

a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a

motive which evinces total depravity and

meanness. For instance when (a) a hired

assassin commits murder for the sake of

money or reward (b) a cold-blooded murder

is committed with a deliberate design in

order to inherit property or to gain

control over property of a ward or a

person under the control of the murderer

Page 47 47

or vis-à-vis whom the murderer is in a

dominating position or in a position of

trust, or (c) a murder is committed in

the course of betrayal of the motherland.

III. Anti-social or socially abhorrent

nature of the crime

35. (a) When murder of a member of a

Scheduled Caste or minority community,

etc. is committed not for personal

reasons but in circumstances which arouse

social wrath. For instance when such a

crime is committed in order to terrorise

such persons and frighten them into

fleeing from a place or in order to

deprive them of, or make them surrender,

lands or benefits conferred on them with

a view to reverse past injustices and in

order to restore the social balance.

(b) In cases of ‘bride burning’ and what

are known as ‘dowry deaths’ or when

murder is committed in order to remarry

for the sake of extracting dowry once

again or to marry another woman on

account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in

proportion. For instance when multiple

murders say of all or almost all the

members of a family or a large number of

persons of a particular caste, community,

or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an

innocent child who could not have or has

not provided even an excuse, much less a

provocation, for murder (b) a helpless

woman or a person rendered helpless by

old age or infirmity (c) when the victim

is a person vis-à-vis whom the murderer

is in a position of domination or trust

Page 48 48

(d) when the victim is a public figure

generally loved and respected by the

community for the services rendered by

him and the murder is committed for

political or similar reasons other than

personal reasons.”

(emphasis supplied)

39. This Court has cautioned that though

the aforesaid are extremely important

factors could not be taken as

inflexible, absolute or immutable,

they must be perceived only as

indicators which the Courts must bear

in mind while deciding upon the

sentence and assigning special

reasons, if required.

40. The Constitutional Bench of this Court

in Shashi Nayar v. Union, (1992) 1

SCC 96 has observed that the “special

reasons clause” means reasons,

specific to the fact of a particular

case, which can be catalogued as

justifying a severe punishment and

Page 49 49

unless, such reasons are not recorded

death sentence must not be awarded.

Under this provision, if the basis

for awarding the higher sentence can

be explained with reasonable

accuracy, after examining the pros

and cons of sentencing options

achieving proportional balance with

the severity of the crime committed

only then should the higher

punishment be awarded. This Court has

noted that thus, Section 345(3) is a

sufficient safeguard against the

arbitrary imposition of the extreme

penalty and unless the nature of

crime and the circumstances of the

offender reveal that the sentence to

life imprisonment would be wholly

inadequate, the Courts should

ordinarily impose a lesser

punishment.

Page 50 50

41. This Court in Sandesh v. State of

Maharashtra, (2013) 2 SCC 479 has

discussed the aforesaid principles

and observed as follows:

“21……it is not only the crime and its

various facets which are the foundation

for formation of special reasons as

contemplated under Section 354(3) CrPC

for imposing death penalty but it is also

the criminal, his background, the manner

in which the crime was committed and his

mental condition at the relevant time,

the motive of the offence and brutality

with which the crime was committed are

also to be examined. The doctrine of

rehabilitation and doctrine of prudence

are the other two guiding principles for

proper exercise of judicial discretion.”

42. The aforesaid would reflect that under

this provision the legislature casts

a statutory duty on the Court to

state reasons for choice of the

sterner sentence to be awarded in

exceptional cases as against the rule

of life imprisonment and by necessary

Page 51 51

implication, a legal obligation to

explain them as distinguished from

the expression “reasons” follows. The

legislative mandate of assigning

“special reasons” assures that the

imposition of the capital punishment

is well considered by the Court and

that only upon categorization of the

case as “rarest of rare”, thus

leaving no room for imposition of a

less harsh sentence, should the Court

sentence the accused person to death.

43. Incontrovertibly, the judicial

approach towards sentencing has to be

cautious, circumspect and careful.

The Courts at all stages- trial and

appellate must therefore peruse and

analyze the facts of the case in hand

and reach an independent conclusion

which must be appropriately and

Page 52 52

cogently justified in the “reasons”

or “special reasons” recorded by them

for imposition of life imprisonment

or death penalty. The length of the

discussion would not be a touchstone

for determining correctness of a

decision. The test would be that

reasons must be lucid and satisfy the

appellate Court that the Court below

has considered the case in toto and

thereafter, upon balancing all the

mitigating and aggravating factors,

recorded the sentence.

44. We must now briefly advert to the

sentencing procedure prescribed by

law. Under Section 235(2) of the

Code, the Court on convicting an

accused must unquestionably afford an

opportunity to the accused to present

his case on the question of sentence

and under Section 354(3) record the

Page 53 53

extraordinary circumstances which

warrant imposition of death sentence

keeping in view the entire facts of

the case and the submissions of the

accused. In doing so if, for any

reason, it omits to do so or does not

assign elaborate reasons and the

accused makes a grievance of it

before the higher court, it would be

open to that Court to remedy the same

by elaborating upon the said reasons.

Even when the reasons recorded by the

Courts below do not conform to the

statutory mandate or the judicially

evolved principles, this Court,

should reach the conclusion that

harsher sentence of death requires to

be imposed, could supplement them so

as to justify the imposition of such

sentence instead of remanding the

matter to Courts below for re-

Page 54 54

consideration on the question of

sentence. Further, should this Court

opine to the contrary that the facts

and circumstances of the case do not

require imposition of capital

punishment and the ends of justice

would be achieved by a less harsh

sentence, it could accordingly

commute the sentence awarded by the

Courts below. This Court in Dagdu

case (supra) has observed that remand

is an exception, not the rule, and

therefore ought to be avoided as far

as possible in the interests of

expeditious, though fair, disposal of

cases.

45. Herein, it is not the case of the

appellants that the opportunity to be

heard on the question of sentence

separately as provisioned for under

Section 235(2) of the Code was not

Page 55 55

provided by the Courts below.

Further, the Trial Court has recorded

and discussed the submissions made by

the appellants and the prosecution on

the said question and thereafter,

rejected the possibility of awarding

a punishment less harsh than the

death penalty. However, the High

Court while confirming the sentence

has recorded reasons though

encapsulated. The High Court has

noticed the motive of the appellants

being non withdrawal of the case by

the informant and the ghastly manner

of commission of crime whereby six

innocent persons as young as 3 year

old were charred to death and

concluded that the incident shocks

the conscience of the entire society

and thus deserves nothing lesser but

death penalty.

Page 56 56

46. There being no impropriety by the

Courts below in compliance with the

procedure prescribed under law for

sentencing the appellants, only the

question of adequacy and correctness

of the special reasons assigned for

awarding sentence of death requires

to be considered by us. In our

considered opinion, as noticed above,

it is only upon examination of the

facts and circumstances of the case

could the adequacy of the special

reasons recorded by the Courts below

be determined by us. Therefore, we

would now consider the second issue

to determine whether at all the case

falls in the category of rarest of

the rare offences.

Issue two: Does this case fall into the category

of rarest of the rare cases?

Page 57 57

47. We are mindful of the principles laid

down by this Court in Bachan Singh v.

State, (1980) 2 SCC 684 and affirmed

in Macchi Singh v. State of Punjab,

(1983) 3 SCC 470 to be observed on

the sentencing policy in determining

the rarest of the rare crimes. In

Bachan Singh case (supra) this Court

has held as follows:

"While considering the question of

sentence to be imposed for the offence

of murder u/s 302 of the 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."

48. In Machhi Singh case (supra), this

Court has awarded death sentence to

the accused who had methodically in a

preplanned manner murdered seventeen

persons of a village including men,

Page 58 58

women and children. Therein, this

Court has besides outlining the five

broad categories of rarest of rare

cases held that in order to apply the

guidelines of Bachan Singh case

(supra) the following questions ought

to be answered:

“39. “(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?”

This Court has held that if the answer to the

above is in affirmative, then death sentence is

warranted. This Court has further observed that

the motivation of the perpetrator, the

vulnerability of the victim, the enormity of

the crime, the execution thereof are few of the

many factors which normally weigh in the mind

Page 59 59

of the Court while awarding death sentence in a

case terming it as the “rarest of the rare”

cases. While applying the test of rarest of the

rare case, the Court has to look into variety

of factors like society's abhorrence, extreme

indignation and antipathy to certain types of

crimes which shake the collective conscience of

the society.

49. This Court in Rajesh Kumar v. State,

(2011) 13 SCC 706 has noticed the

observations and principles evolved

in Bachan Singh case (supra)

resonating through the international

sentiments on death penalty, as

follows:

“83. The ratio in Bachan Singh 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 pp. 104-05). Roger Hood

and Carolyn Hoyle in their treatise on

The Death Penalty, 4th Edn. (Oxford)

have also very much appreciated the

Bachan Singh ratio (see p. 285). The

concept of “rarest of rare” which has

Page 60 60

been evolved in Bachan Singh by this

Court is also the internationally

accepted standard in cases of death

penalty.

84. 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.]

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

summarised 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 has

no significant mitigation and is

considered beyond reformation.”

(Quoted in The Death Penalty, Roger Hood

and Hoyle, 4th Edn., Oxford, p. 285.)

85. Opposing mandatory death sentence,

the 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

Page 61 61

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 individualised

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, individualised

sentencing that accounts for all of

the relevant factors…. It is clear,

therefore, that in death penalty

cases, individualised 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 Edn., Oxford, p. 281.)

50. In Ramnaresh v. State of

Chhattisgarh, (2012) 4 SCC 257, this

Court has reflected upon the

aforesaid decisions and culled out

the principles as follows:

“76. The aforesaid judgments, primarily

dissect these principles into two

different compartments—one being the

Page 62 62

“aggravating circumstances” while the

other being the “mitigating

circumstances”. The court would consider

the cumulative effect of both these

aspects and normally, it may not be very

appropriate for the court to decide the

most significant aspect of sentencing

policy with reference to one of the

classes under any of the following heads

while completely ignoring other classes

under other heads. To balance the two is

the primary duty of the court. It will be

appropriate for the court to come to a

final conclusion upon balancing the

exercise that would help to administer the

criminal justice system better and provide

an effective and meaningful reasoning by

the court as contemplated under Section

354(3) CrPC.

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.

Page 63 63

(5) Hired killings.

(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 CrPC.

(9) When the crime is enormous in

proportion like making an attempt of

murder of the entire family or members of

a particular community.

(10) 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.

(11) When murder is committed for a motive

which evidences total depravity and

meanness.

(12) When there is a cold-blooded murder

without provocation.

(13) 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

Page 64 64

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 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.

77. While determining the questions

relatable to sentencing policy, the court

has to follow certain principles and those

principles are the loadstar besides the

above considerations in imposition or

otherwise of the death sentence.

Page 65 65

Principles

(1) The court has to apply the test to

determine, if it was the “rarest of rare”

case for imposition of a death sentence.

(2) In the opinion of the court,

imposition of any other punishment i.e.

life imprisonment would be completely

inadequate and would not meet the ends of

justice.

(3) Life imprisonment is the rule and

death sentence is an exception.

(4) The option to impose sentence of

imprisonment for life cannot be cautiously

exercised having regard to the nature and

circumstances of the crime and all

relevant considerations.

(5) The method (planned or otherwise) and

the manner (extent of brutality and

inhumanity, etc.) in which the crime was

committed and the circumstances leading to

commission of such heinous crime.”

51. This Court has consistently held that

only in those exceptional cases where

the crime is so brutal, diabolical

and revolting so as to shock the

collective conscience of the

community, would it be appropriate to

award death sentence. Since such

circumstances cannot be laid down as

a straight jacket formula but must be

Page 66 66

ascertained from case to case, the

legislature has left it open for the

Courts to examine the facts of the

case and appropriately decide upon

the sentence proportional to the

gravity of the offence.

52. We would now notice the decisions of

this Court to reflect upon the

various circumstances which have

acted as mitigating and aggravating

factors in given facts to result in

commutation of sentence or

confirmation of death penalty; so as

to examine the sentencing policy in

the backdrop of balance-sheet of such

factors in the case at hand.

Cases where death sentence is confirmed:

53. In Dagdu v. State of Maharashtra,

(1977) 3 SCC 68 , this Court has

Page 67 67

observed as follows:

“83. Having considered the matter in all

its aspects — penal, juristic and

sociogical — and having given our most

anxious consideration to the problem, we

are of the opinion that Accused 3, 9, 10

and 11 deserve the extreme penalty of

law and that there is no justification

for interfering with the sentence of

death imposed upon them.

84. Accused 3 put an end to four

innocent lives, three small girls ten

years of age and a woman in her

thirties. Accused 9, 10 and 11 committed

the murders of Haribai, her nine-year

old daughter and her infant child. The

victims had given no cause for the

atrocities perpetrated on them. They

were killed as a child kills flies. And

the brutality accompanying the manner of

killing defies an adequate description.

The luring of small girls, the gagging,

the cutting of their private parts, the

ruthless defiling in order to prevent

identification of the victims and the

mysterious motive for the murders call

for but one sentence. Nothing short of

the death sentence can atone for such

callous and calculated transgression of

law. Morbid pity can have no place in

the assessment of murders which, in many

respects, will remain unparalled in the

annals of crime. Accordingly, we confirm

the death sentence imposed on Accused 3,

9, 10 and 11.”

54. In Sunder Singh v. State of

Uttaranchal, (2010) 10 SCC 611 the

Page 68 68

accused had gone to the place of

occurrence well prepared carrying

jerry cans containing petrol, sword,

pistol with two bullets, which showed

his premeditation and cold-blooded

mind. In the incident five persons

lost their lives while the sole

surviving lady survived with 70% burn

injuries. The murder was committed in

a cruel, grotesque and diabolical

manner, and closing of the door of

the house was the most foul act by

which the accused actually intended

to burn all the persons inside the

room and precisely that happened.

Hence the Court did not find any

sentence less harsh than the death

sentence.

55. In M.A. Antony v. State of Kerala,

(2009) 6 SCC 220 all six members of a

family were murdered at their

Page 69 69

residence at night. The motive was

money, and the absence of the accused

from his own residence during the

corresponding period and recovery of

clothes under Section 27 of the

Evidence Act, 1872, fingerprints on

the doorsteps of the house matching

with those of the accused, and

recovery of scalp hair of the accused

from place of occurrence were damning

circumstantial evidence. Having

regard to the chain of circumstances

and the diabolical manner of

commission of crime the death

sentence was upheld.

56. In Jagdish v. State of M.P., (2009) 9

SCC 495 the assailant murdered his

wife and five children (aged 1 to 16

years) in his own house. The murders

were particularly horrifying as the

assailant was in a dominant position

Page 70 70

and a position of trust as the head

of the family. The assailant

betraying the trust and abusing his

position murdered his wife and minor

children (youngest being the only son

just 1 year old). This Court held

that the balance sheet of the

aggravating and mitigating

circumstances was heavily weighed

against the assailant making it the

rarest of rare cases. Consequently

the award of death sentence was just.

57. In Prajeet Kumar Singh v. State of

Bihar, (2008) 4 SCC 434 the accused

was a paying guest for a continuous

period of four years in lieu of a sum

of Rs.500 for food and meals. He

brutally executed three innocent

defenceless children aged 8, 15 and

16, attempted to murder the father

(informant) and mother who survived

Page 71 71

the attack with multiple injuries.

There was no provocation or reason

for committing this ghastly act at a

time when the children were sleeping.

There were several incised wounds

(muscle-deep or bone-deep) caused to

the deceased. Considering the

brutality, diabolic, inhuman nature

and enormity of the crime (multiple

murders and attacks), this Court held

that the mindset of the accused could

not be said to be amenable to any

reformation. Therefore, it came under

the rarest of the rare category where

not awarding a death sentence would

have resulted in failure of justice.

58. In Ram Singh v. Sonia, (2007) 3 SCC 1

the wife in collusion with her

husband murdered not only her

stepbrother and his whole family

including three tiny tots of 45 days,

Page 72 72

2½ years and 4 years, but also her

own father, mother and sister so as

to deprive her father from giving

property to her stepbrother and his

family. The murders were committed in

a cruel, pre-planned and diabolic

manner while the victims were

sleeping, without any provocation

from the victim’s side. It was held

that the accused persons did not

possess any basic humanity and

completely lacked the psyche or

mindset amenable to any reformation.

It was a revolting and dastardly act,

and hence the case fell within the

category of the rarest of rare cases

and thus death sentence was

justified.

59. In Holiram Bordoloi v. State of

Assam, (2005) 3 SCC 793 the accused

persons were armed with lathis, and

Page 73 73

various other weapons. They came to

the house of the victim and started

pelting stones on the bamboo wall of

the said house. Thereafter, they

closed the house from the outside and

set the house on fire. When the son,

daughter and the wife of the victim

somehow managed to come out of the

house, the accused persons caught

hold of them and threw them into the

fire again. Thereafter the elder

brother who was staying in another

house at some distance from the house

of the victim was caught and dragged

to the courtyard of the accused where

the accused cut him into pieces. It

was held that there was absence of

any strong motive and the victims did

not provoke or contribute to the

incident. The accused was the leader

of the gang, and the offence was

Page 74 74

committed in the most barbaric manner

to deter others from challenging the

supremacy of the accused in the

village. It was held that no

mitigating circumstances to refrain

from imposing death penalty were

found.

60. In Karan Singh v. State of U.P.,

(2005) 6 SCC 342 the two appellants

chased the deceased persons and

butchered them with axes and other

weapons in a very dastardly manner.

After killing three adults, the

appellants entered their house and

killed two children who in no way

were involved with the alleged

property dispute with the appellants.

It was held that the sole intention

here was to exterminate the entire

family. Thus, it was the rarest of

the rare case.

Page 75 75

61. In Gurmeet Singh v. State of U.P. ,

(2005) 12 SCC 107 appellant G, along

with his friend L killed thirteen

members of his family including small

kids for a flimsy reason (objection

of family of G to the visits and stay

of L at their house) while they were

asleep. The award of death sentence

was held proper.

62. In State of Rajasthan v. Kheraj Ram,

(2003) 8 SCC 224 the accused

deliberately planned and executed his

two innocent children, wife and

brother-in-law when they were

sleeping at night. There was no

remorse for such a gruesome act which

was indicated by the calmness with

which he was smoking “chilam” after

the commission of the act. As it was

preplanned and after the entire chain

of events and circumstances were

Page 76 76

comprehended, the inevitable

conclusion, was that the accused

acted in the most cruel and inhuman

manner and the murder was committed

in an extremely brutal, grotesque,

diabolical, revolting and dastardly

manner.

63. In Om Prakash v. State of

Uttaranchal, (2003) 1 SCC 648 the

accused, a domestic servant killed

three innocent members and attempted

to kill the fourth member of the

family of his employer in order to

take revenge for the decision to

dispense with his service and to

commit robbery. The death sentence

was upheld.

64. In Gurdev Singh v. State of Punjab ,

(2003) 7 SCC 258 the appellants,

having known that on the next day a

Page 77 77

marriage was to take place in the

house of the complainant and there

would be lots of relatives present in

her house, came there on the evening

when a feast was going on and started

firing on the innocent persons.

Thirteen persons were killed on the

spot and eight others were seriously

injured. The appellants thereafter

went to another place and killed the

father and brother of PW 15. Out of

the thirteen persons, one of them was

a seven-year-old child, three others

had ages ranging between 15 and 17

years. The death sentence was held

justified.

65. In Praveen Kumar v. State of

Karnataka, (2003) 12 SCC 199 the

accused was accommodated by one of

the victims (who was his aunt)

despite her large family, and she

Page 78 78

gave him an opportunity to make an

honest living as a tailor. The

accused committed the preplanned,

cold-blooded murders of the relatives

and well-wishers (including one young

child) while they were sleeping.

After the commission of the crime the

accused absconded from judicial

custody for nearly four years, which

eliminated the possibility of any

remorse or rehabilitation. Held, the

extreme penalty of death was

justified.

66. In Suresh v. State of U.P., (2005) 6

SCC 130 the brutal murder of one of

the accused’s brother and his family

members including minor children at

night when they were fast asleep with

axe and chopper by cutting their

skulls and necks for a piece of land

was considered to be a grotesque and

Page 79 79

diabolical act, where any other

punishment than the death penalty was

unjustified.

67. In Ranjeet Singh v. State of

Rajasthan, (1988) 1 SCC 633 the

entire family was murdered when they

were fast asleep and this Court

observed as under:

“13. With regard to the sentence of

death, there cannot be two opinions. The

manner in which the entire family was

eliminated indicates that the offence was

deliberate and diabolical. It was

predetermined and cold-blooded. It was

absolutely devilish and dastardly.”

68. In Ramdeo Chauhan v. State of Assam,

(2000) 7 SCC 455 the accused

committed a preplanned, cold-blooded

brutal murder of four inmates of a

house including two helpless women

and a child aged 2½ years during

their sleep with a motive to commit

theft. The accused also attacked with

Page 80 80

a spade another inmate of the house,

an old woman, and a neighbour when

they entered the house. The Court

held that the young age (22 years) of

the accused at the time of committing

the crime was not a mitigating

circumstance, and death penalty was a

just and proper punishment.

69. In Narayan Chetanram Chaudhary v.

State of Maharashtra, (2000) 8 SCC

457 there was a preplanned,

calculated, cold-blooded murder of

five women, including one pregnant

woman and two children aged 1½ years

and 2½ years, all inmates of a house,

in order to wipe out all evidence of

robbery and theft committed by two

accused in the house at a time when

male members of the house were out.

It was held that the young age (20-22

years) of the accused persons cannot

Page 81 81

serve as a mitigating circumstance.

70. In Surja Ram v. State of Rajasthan ,

(1996) 6 SCC 271 the appellant

murdered his brother, his two minor

sons and an aged aunt by cutting

their neck with a kassi while they

were all sleeping. He also attempted

to murder his brother’s wife and

daughter but they survived with

serious injuries. The dispute between

them only related to putting a barbed

fence on a portion of their

residential complex. The death

sentence was held to be justified.

71. In Ravji v. State of Rajasthan, (1996)

2 SCC 175 the accused in a cool and

calculated manner wanted to kill his

wife and three minor children while

they were asleep. When his mother

intervened he injured her with an axe

Page 82 82

with an intention to kill her. He

then silently went to the neighbour’s

house and attempted to kill his

neighbour’s wife who was also asleep.

When his neighbour intervened he

killed him too and fled from the

place of occurrence and tried to hide

himself. The accused had a solemn

duty to protect his family members

and maintain them but he betrayed the

trust reposed in him in a very cruel

and calculated manner without any

provocation whatsoever. Hence the

death penalty had to be upheld.

72. In Sudam v. State of Maharashtra,

(2011) 7 SCC 125 this Court held that

where an accused was found guilty of

committing murder of four children

and a woman with whom he was living

with as husband and wife, the death

penalty was justified and observed:

Page 83 83

“22. The manner in which the crime has

been committed clearly shows it to be

premeditated and well planned. It seems

that all the four children and the woman

were brought near the pond in a planned

manner, strangulated to death and the

dead bodies of the children thrown in the

pond to conceal the crime. He not only

killed Anita but crushed her head to

avoid identification. Killing four

children, tying the dead bodies in

bundles of two each and throwing them in

the pond would not have been possible,

had the appellant not meticulously

planned the murders. It shows that the

crime has been committed in a beastly,

extremely brutal, barbaric and grotesque

manner. It has resulted in intense and

extreme indignation of the community and

shocked the collective conscience of the

society.

23. We are of the opinion that the

appellant is a menace to the society who

cannot be reformed. Lesser punishment, in

our opinion, shall be fraught with danger

as it may expose the society to peril

once again at the hands of the appellant.

We are of the opinion that the case in

hand falls in the category of the rarest

of rare cases and the trial court did not

err in awarding the death sentence and

the High Court confirming the same.”

73. In Atbir v. Govt. (NCT of Delhi),

(2010) 9 SCC 1, this Court confirmed

the death sentence given to the

appellant who had committed multiple

Page 84 84

murders of members of his family, who

were none other than stepmother,

brother and sister in order to

inherit the entire property of his

father. The appellant, in

consultation with his mother planned

to eliminate the entire family of his

stepmother, and with this intention

went to her house, closed the doors

and mercilessly inflicted 37 knife

injuries on the vital parts of the

victims’ bodies.

74. In Ajitsingh Harnamsingh Gujral v.

State of Maharashtra, (2011) 14 SCC

401 the appellant was convicted for

burning wife and three grown up

children. While awarding the sentence

of death this Court considered the

following circumstances which weighed

in favor of the capital punishment:

Page 85 85

“91. In our opinion, a person like the

appellant who instead of doing his duty

of protecting his family kills them in

such a cruel and barbaric manner cannot

be reformed or rehabilitated. The balance

sheet is heavily against him and

accordingly we uphold the death sentence

awarded to him.

92. In the present case the accused did

not act on any spur of the moment

provocation. It is no doubt that a

quarrel occurred between him and his wife

at midnight, but the fact that he had

brought a large quantity of petrol to his

residential apartment shows that he had

pre-planned the diabolical and gruesome

murder in a dastardly manner.”

Cases where death sentence is commuted:

75. Mohd. Chaman v. State (NCT of Delhi),

(2001) 2 SCC 28 was a case where the

convict had raped a one-and-a-half

year old child who died as a result

of the unfortunate incident. This

Court found that the crime committed

was serious and heinous and the

criminal had a dirty and perverted

mind and had no control over his

carnal desires. Nevertheless, this

Page 86 86

Court found it difficult to hold that

the criminal was such a dangerous

person that to spare his life would

endanger the community. This Court

reduced the sentence to imprisonment

for life since the case was one in

which a “humanist approach” should be

taken in the matter of awarding

punishment.

76. Dilip Premnarayan Tiwari v. State of

Maharashtra, (2010) 1 SCC 775 was a

case in which three convicts had

killed two persons and grievously

injured two others, leaving them for

dead. A third victim later succumbed

to his injuries. While noticing that

the crime was in the nature of, what

is nowadays referred to as “honour

killing”, this Court reduced the

death sentence awarded to two of the

criminals to imprisonment for life

Page 87 87

with a direction that they should not

be released until they complete 25

years of actual imprisonment. The

third criminal was sentenced to

undergo 20 years of actual

imprisonment. That these criminals

were young persons who did not have

criminal antecedents weighed in

reducing their death sentence.

77. Sebastian v. State of Kerala, (2010) 1

SCC 58 was a case in which the

criminal had raped and murdered a

two-year-old child. He was found to

be a paedophile with “extremely

violent propensities”. Earlier, in

1998, he was convicted of an offence

under Section 354 IPC, that is,

assault or use of criminal force on a

woman with intent to outrage her

modesty, an offence carrying a

maximum sentence of two years’

Page 88 88

imprisonment with fine. Subsequently,

he was convicted for a more serious

offence under Sections 302, 363 and

376 IPC but an appeal was pending

against his conviction. The convict

also appears to have been tried for

the murder of several other children

but was acquitted in 2005 with the

benefit of doubt, the last event

having taken place three days after

he had committed the rape and murder

of the two-year-old child.

Notwithstanding the nature of the

offence as well as his “extremely

violent propensities”, the sentence

of death awarded to him was reduced

to imprisonment for the rest of his

life.

78. In Rajesh Kumar case (supra) the

appellant had murdered two children.

One of them was four-and-a-half year

Page 89 89

old and the criminal had slit his

throat with a piece of glass which he

obtained from breaking the dressing

table. The other child was an infant

of eight months who was killed by

holding his legs and hitting him on

the floor. Despite the brutality of

the crime, the death sentence awarded

to this convict was reduced to that

of life imprisonment. It was held

that he was not a continuing threat

to the society and that the State had

not produced any evidence to show

that he was incapable of reform and

rehabilitation.

79. Amit v. State of U.P., (2012) 4 SCC

107 was a case in which a three-year-

old child was subjected to rape, an

unnatural offence and murder. The

convict was also found guilty of

causing the disappearance of

Page 90 90

evidence. The sentence of death

awarded to him was reduced to

imprisonment for life subject to

remissions. It was held that there

was nothing to suggest that he would

repeat the offence and that the

possibilities of his reform over a

period of years could not be ruled

out since there was no evidence of

any earlier offence committed by him.

80. In the present circumstances, we would

place reliance upon the observations

of this Court in State of U.P. v.

Dharmendra Singh, (1999) 8 SCC 325.

In this case, 6 accused persons were

charged with offence under Section

302 read with 149 of the IPC for

murdering 5 persons: an old man of 75

years, a woman aged 32 years, two

boys aged 12 years and a girl aged 15

years, at night when they were asleep

Page 91 91

by inflicting multiple injuries to

wreak vengeance. The Trial Court

while convicting them had awarded

life sentence in regard to 4 accused

persons and after assigning reasons

awarded death sentence to the 2

others. In appeal the High Court

upheld the conviction of all accused

persons and while confirming life

sentence on the 4 accused persons

came to the conclusion that the

sentence of death was not called for

in respect to 2 accused persons who

were languishing in the death cell

for 3 years and consequently reduced

the sentence to that of imprisonment

of life. In appeal, this Court in

context of the argument that since

individual overt acts that have not

been established, even if the

conviction is to be upheld, capital

Page 92 92

punishment should not be granted, has

observed as follows:

“15. We have carefully perused the

evidence adduced in this case, to the

limited extent of examining whether the

case in hand is a case which could be

termed as rarest of the rare cases so as

to invoke the extreme penalty of death.

The learned Sessions Judge while

assigning special reasons for awarding

the capital punishment came to the

conclusion that the crime in question

was a dastardly crime involving the

death of 5 innocent human beings for the

purpose of achieving the sadistic goals

of Dharmendra and Narendra, the

respondents herein, to avenge their

respective grouse against the

complainant and his niece Reeta by

eliminating 5 members of the family.

Learned Sessions Judge distinguished the

case of the 4 other accused with that of

these respondents based on the motive

and on the ground that these respondents

were the principal perpetrators of the

crime. It is seen that the High Court

has concurred with this reasoning of the

Sessions Judge. However, the High Court

on the ground that the accused have

languished in the death cell for 3

years, altered the sentence to life

imprisonment.

…

23. It is possible in a given set of

facts that the court might think even in

a case where death sentence can be

awarded, the same need not be awarded

because of the peculiar facts of that

case like the possibility of one or more

of the accused being responsible for

Page 93 93

offences less culpable than the other

accused. In such circumstances, in the

absence of their being no material

available, to bifurcate the case of each

accused person, the court might think it

prudent not to award the extreme penalty

of death. But then such a decision would

rest on the availability of evidence in

a particular case. We do not think that

a straitjacket formula for awarding

death sentence can be evolved which is

applicable to all cases. The facts of

each case will have their own

implication on the question of awarding

sentence. In Ronny case (1998) 3 SCC

625, this Court on facts found

extenuating factors to curb the sentence

which is clear from the following

extract from the said judgment: (SCC p.

654, para 47)

“From the facts and circumstances,

it is not possible to predict as to

who among the three played which

part. It may be that the role of one

has been more culpable in degree

than that of the others and vice

versa. Where in a case like this it

is not possible to say as to whose

case falls within the ‘rarest of the

rare’ cases, it would serve the ends

of justice if the capital punishment

is commuted into life imprisonment.”

81. Further in Dharmendra Singh case

(supra) this Court while rejecting

the mitigating circumstance of

expectation of survival due to

Page 94 94

reversal of sentence by the High

Court, observed:

“25…In a judicial system like ours

where there is a hierarchy of

courts, the possibility of reversal

of judgments is inevitable,

therefore, expectations of an

accused cannot be a mitigating

factor to interfere in an appeal for

enhancement of sentence if the same

is otherwise called for in law.

26. Taking into consideration the

brutality of the attack, the number

of persons murdered, the age and

infirmity of the victims, their

vulnerability and the diabolic

motive, acts of perversion on the

person of Reeta, cumulatively we

find the sentence awarded by the

trial court was just and proper. “

Mitigating and Aggravating Circumstances in

the present case:

82. Having noticed the decisions of this

Court on the said aspect, we would

revert to the factual position in

this case. Herein, the time, place,

manner of and the motive behind

commission of the crime speak volumes

of the pre-mediated and callous

nature of the offence. The

Page 95 95

ruthlessness of the appellants is

reflected through brutal murders of

the young, innocent children and wife

of the informant by burning them

alive to avenge their cause in the

dark of the night; the cause being

non-withdrawal of an FIR filed by the

informant for theft of his buffalo

against the appellant-A1. Further,

from the record we gather that only

family members of the informant have

come forward to depose as the entire

village must have been shocked with

the ghastly murders of the deceased

persons and in such circumstances

would not have come forward to

testify against the appellants who

already had translated the threats

given to the informant in village

panchayat into a shocking reality.

While our experience reminds us that

Page 96 96

civilized people generally

unsuccinctly when the crime is

committed infact in their presence,

withdraw themselves both from the

victim and the vigilante unless

inevitable and consider that crime

like civil disputes must restrict

itself to the two parties, it also

evidences for the threat the incident

had instilled amongst the villagers

that none in such close knit unit

besides the sanguine relatives had

come forth to testify against the

accused.

83. The mitigating circumstances

elaborated upon by Shri Mishra in

respect of comparatively young age of

the appellants holds no ground, their

army background and their custodial

behavior fail to outweigh the

aggravating factors in the present

Page 97 97

case. The argument that the

appellants are not “antisocial

elements” fails into inception in the

light of the effect of the occurrence

reflected through the abstinence of

the villagers from deposing against

them at the trial.

84. However, in the present case, while

taking an overall view, no overt act

in the commission of crime could be

attributed to A3. The role played by

A3 during commission of the crime as

established was to hold the barrels

of kerosene along with one other.

While determining the gravity of the

offence committed by the appellants

it must be noticed that it is only A1

who had threatened the informant of

burning his house in case the FIR

against his family and him were not

withdrawn. Further, A1 during the

Page 98 98

occurrence not only scripted and

instructed the rest of the unlawful

assembly but also lighted the

matchstick to burn the house as well

informant’s body. A2, pushed the

informant to the ground and later

fired at him.

85. Further, in respect of the mitigating

factors of lack of criminal

antecedents or probabilities of the

appellants to be menace to the

society, we would re-iterate the

observations of this Court in Gurdev

Singh v. State of Punjab, (2003) 7

SCC 258 that it is indeed true that

the underlying principle of our

sentencing jurisprudence is

reformation and there is nothing in

evidence to show that the appellants

have been a threat or menace to the

society at large besides the FIR

Page 99 99

regarding the theft of buffalo. It is

also true that we cannot say that

they would be a further menace to the

society or not as we live as

creatures saddled with an imperfect

ability to predict the future.

Nevertheless, the law prescribes for

future, based upon its knowledge of

the past and is being forced to deal

with tomorrow’s problems with

yesterday’s tools.

86. However, in the peculiar facts of this

case, the possibility of A3 being

less culpable than the other accused

cannot be answered in affirmative.

Therefore, in our considered view, we

do not deem it proper to sentence A3

to death in light of there being no

overt act attributable to him and

sentence to imprisonment till the end

of his life would appropriately serve

Page 100 100

as punishment proportional to the

degree of offence committed by him.

87. In respect of A1 and A2, we are of the

considered view that the instant case

falls into such category of rarest of

the rare cases where culpability has

assumed the proportion of extreme

depravity and the appellant-accused

are perfect example of a blood

thirsty, scheming and hardened

criminals who slayed seven innocent

lives to quench their thirst for

revenge and such revenge evolving out

of a fellow citizens refusal to

abstain from resorting to machinery

of law to protect his rights. The

entire incident is extremely

revolting and shocks the collective

conscience of the community. The acts

of murder committed by the appellants

are so gruesome, merciless and brutal

Page 101 101

that the aggravating circumstances

far outweigh the mitigating

circumstances.

88. We now proceed to examine such special

reasons which negate the possibility

of any sentence but for death

penalty. Herein, A1 and A2 have

committed a cold blooded murder in a

pre-ordained fashion without any

provocation whatsoever. The motive

behind the gruesome act was to avenge

the act of informant in approaching

the machinery of law enforcement

inspite of threats by the appellants.

The victims were five innocent

children and wife of the informant

who were sleeping unalarmed when the

appellants came and locked them

inside their house while it was set

ablaze. Further, wrath of A1 and A2

is reflected in their act of first

Page 102 102

gagging the informant, thereafter

attempting to burn him alive and

later, when he tried to escape,

firing at him thereby leaving no

stone unturned in translating their

threats into reality. As a result of

the aforesaid incident, having

witnessed the threats of burning

given by the A1 to the informant

tuned into reality, none but the

family of the deceased-informant came

forth to depose against the

appellant-accused persons during the

trial. The crime, enormous in

proportion having wiped off the whole

family, is committed so brutally that

it pricks and shocks not only the

judicial conscience but even the

collective conscience of the society.

It demands just punishment from the

Court and the Court is bound to

Page 103 103

respond within legal parameters. The

demand for justice and the award of

punishment have to be in consonance

with the legislative command and the

discretion vested in the Courts.

89. On the question of striking a delicate

balance between the proportionality

of crime to the sentencing policy,

Lord Denning has observed as follows

on the very purpose of imposition of

a punishment:

“…the punishment is the way in which

society expresses its denunciation of

wrong doing; and, in order to maintain

respect for the law, it is essential that

the punishment inflicted for grave crimes

should adequately reflect the revulsion

felt by the great majority of citizens for

them. It is a mistake to consider the

objects of punishments as being a

deterrent or reformative or preventive and

nothing else... The truth is that some

crimes are so outrageous that society

insists on adequate punishment, because

the wrong doer deserves it, irrespective

of whether it is a deterrent or not.”

90. In light of the aforesaid, having

Page 104 104

regard to the gravity of the offence

committed, we are of the considered

opinion that with regard to A1 and A2

this case falls into the category of

rarest of the rare cases and is not a

case where imprisonment for life is

an adequate sentence and thus,

constrained to reach the inescapable

conclusion that death sentence

imposed on A1 and A2 be confirmed.

91. Therefore, the sentence of death

imposed on A1 and A2 is confirmed and

the sentence awarded to A3 is

commuted to life imprisonment till

the rest of his life.

92. The order of stay on the execution of

the capital punishment of A1 and A2

is vacated.

93. The appeals are disposed of in the

aforesaid terms.

Page 105 105

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

(H. L. DATTU)

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

(SUDHANSU JYOTI MUKHOPADHAYA)

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

(M. Y. EQBAL)

NEW DELHI;

SEPTEMBER 19, 2013.