1

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

REVIEW PETITION (CRIMINAL) NO. 308 OF 2011

IN

CRIMINAL APPEAL NO 379 OF 2009

MD. MANNAN @ ABDUL MANNAN …PETITIONER

VERSUS

...RESPONDENT

STATE OF BIHAR

O R D E R

This application is for reopening the Review Petition (Crl.)

No.308 of 2011 and for review of the final judgment and order dated

20.04.2011 passed by this Court dismissing Criminal Appeal No.379

of 2009 filed by the review petitioner and confirming his conviction,

inter alia, under Section 201, 366A, 376 and 302 of the Indian Penal

Code (IPC) and, inter alia, affirming the death sentence imposed on

him under Section 302 of the IPC.

2. It appears that the petitioner, a mason, was engaged at the

residence of the deceased victim’s grand father. On 28.9.2004 at

about 2.00 p.m., the petitioner gave money to the victim to bring

betel for him from Hanuman Chowk. A little while later the petitioner

2

also went to Hanuman Chowk, picked up the victim, an eight year old

girl, on his bicycle and left talking with her. The victim and the

petitioner were seen together by witnesses.

3. The victim did not return home, whereupon frantic searches

were made. The victim was not found. It was learnt that the victim

had been last seen with the petitioner.

4. The officer in-charge of Bahera Police Station, under which the

village of the petitioner falls, was informed that the victim was

missing. In course of investigation the petitioner, who had earlier

been identified as the man with whom the victim had last been seen,

riding on a bicycle, allegedly made a confessional statement in the

presence of witnesses, confessing that he had raped and murdered

the victim. The confessional statement was signed by the petitioner.

5. The petitioner is alleged to have disclosed the place where he

had raped and killed the victim. It is the case of the prosecution,

that on the basis of information given by the petitioner, the

Investigating Officer went to the village Izaar Haat Bandh, where the

dead body of the victim was recovered from the spot shown by the

petitioner, amidst wheat and ‘arahar’ fields.

6. The dead body was identified as that of the victim. The

doctor who conducted the post mortem opined that death was due to

asphyxia and haemorrhage as a result of strangulation within 8 to 24

hours from the time of post mortem examination. The doctor also

deposed that upon examination the vaginal swab collected from the

victim showed “few intact spermatozoa”. The medical evidence

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clearly established that the victim had been raped and murdered.

However no DNA analysis of the spermatozoa was conducted by the

prosecution.

7. By a judgment and order rendered on 29.5.2007 in Sessions

Trial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. Case

No.13 of 2004, the Additional District and Sessions Judge (Fast Track

Court) No.30, on consideration of the evidence on record, held the

petitioner guilty of charges under Sections 366A, 376, 302 and 201 of

IPC. On the same day after hearing the applicant on the question of

sentence, the Fast Track Court sentenced the petitioner to undergo

rigorous imprisonment for 10 years for charge under Section 366A

IPC, rigorous imprisonment for life for charge under Section 376 IPC,

rigorous imprisonment for 7 years for charge under Section 201 IPC

and death sentence for charge under Section 302 IPC. All the

sentences except the sentence for the charge under Section 302 IPC

were to run concurrently till execution of the death sentence under

Section 302 IPC, whereby the convict was to be hanged by the neck

till his death.

8. The learned Additional District and Sessions Judge, Fast Track

court directed that the proceedings of the case be transmitted to the

High Court of Judicature at Patna for confirmation of the death

sentence. The petitioner filed an appeal being Criminal Appeal (DB)

No.963 of 2007 in the High Court against his conviction and sentence.

9. The death sentence reference being Death Reference No.6 of

2007 was heard by the Division Bench of the High Court along with

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the Criminal Appeal (DB) No. 963 of 2007. The Division Bench, after

considering the materials on record, arrived at the finding that the

charges against the petitioner under Sections 366A, 376, 302 and

201 had been proved beyond doubt and upheld the conviction. The

appeal was dismissed and the death penalty awarded to the

petitioner by the Trial Court was confirmed.

10. The petitioner filed a Special Leave Petition in this Court to

appeal against the judgment and order of the High Court. Leave was

duly granted.

11. The appeal being Criminal Appeal No.379 of 2009 was

dismissed by this Court, by the judgment and order dated 20.4.2011,

of which review has been sought, and the death sentence confirmed

with the observation that the case fell in the category of the rarest of

rare cases.

12. The petitioner filed a petition for review of the said judgment

and order dated 20.4.2011. The said review petition was dismissed

by circulation by the same two judges on 24.8.2011.

13. By a judgment and order dated 2.9.2014 in W.P. (Crl.) No. 77

of 2014 (Mohd. Arif v. The Registrar of the Supreme Court

1

), a

Constitution Bench of this Court held that, that review petitions in

cases of death sentences should be heard in Open Court, by a three-

Judge Bench. The Constitution Bench specifically permitted the

reopening of review petitions in all cases where review petitions had

been dismissed by circulation.

1 (2014) 9 SCC 737

5

14. There can be no doubt that in view of the judgment of this

Court in Mohd. Arif (supra) the petitioner is entitled to have the

application for review, which had been dismissed by circulation,

reopened and heard in Open Court.

15. In this petition for review we need not consider the merits of

the case, there being concurrent findings of the Trial Court, the High

Court and of this Court. This review is only restricted to the question

of whether death sentence should be commuted to life imprisonment.

16. In Bachan Singh vs. State of Punjab

2

, this Court, while

upholding the validity of death sentence held, that imprisonment for

life was the rule and death sentence an exception, to be imposed in

the “rarest of rare” cases, recording special reasons. In Bachan

Singh (supra), this Court in effect held that before exercising

discretion to impose the extreme penalty of death sentence,

aggravating and mitigating circumstances are required to be

considered. Some of the mitigating factors would be the extreme

mental or emotional disturbance in which the offence might have

been committed, the possibility that the accused would not be a

continuing threat to society, the possibility of reformation and

rehabilitation of the accused, mental defect or disorder of the

accused etc.

17. In Rajesh Kumar vs. State (through Govt. of NCT of

Delhi)

3

, this Court observed:-

“83. The ratio in Bachan Singh has received approval by

2 (1980) 2 SCC 684

3 (2011) 13 SCC 706

6

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 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.)

86. Taking an overall view of the facts in these appeals

and for the reasons discussed above, we hold that

death sentence cannot be inflicted on the appellant

since the dictum of the Constitution Bench in Bachan

Singh is that the legislative policy in Section 354(3) of

the 1973 Code is that for a person convicted of murder,

life imprisonment is the rule and death sentence, an

exception, and the mitigating circumstances must be

given due consideration. Bachan Singh further

mandates that in considering the question of sentence

the court must show a real and abiding concern for the

dignity of human life which must postulate resistance to

taking life through law’s instrumentality. Except in the

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“rarest of rare cases” and for “special reasons” death

sentence cannot be imposed as an alternative option to

the imposition of life sentence”.

18. In Rajesh Kumar (supra), the accused was convicted of

assault and murder of two helpless children in the most gruesome

manner. This Court held that death sentence could not be inflicted,

reiterating that life imprisonment was the rule and death sentence an

exception only to be imosed in the “rarest of rare cases” and for

“special reasons” when there were no mitigating circumstances.

19. Section 235 of the Criminal Procedure Code (Cr.P.C.), reads as

follows:-

“235. Judgment of acquittal or conviction.—(1) After

hearing arguments and points of law (if any), the Judge shall

give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he

proceeds in accordance with the provisions of Section 360,

hear the accused on the question of sentence, and then

pass sentence on him according to law.”

20. Section 235 (2) of the CrPC is not a mere formality. It is

obligatory on the part of the learned trial Judge to hear the accused

on the question of sentence and deal with it. To quote Bhagwati J. in

Santa Singh vs. State of Punjab

4

.

“2. …...This provision is clear and explicit and does not

admit of any doubt. It requires that in every trial before a

court of sessions, there must first be a decision as to the

guilt of the accused. The court must, in the first instance,

deliver a judgment convicting or acquitting the accused. If

the accused is acquitted, no further question arises. But if

he is convicted, then the court has to “hear the accused on

the question of sentence, and then pass sentence on him

according to law”. When a judgment is rendered convicting

the accused, he is, at that stage, to be given an opportunity

to be heard in regard to the sentence and it is only after

4 (1976) 4 SCC 190

8

hearing him that the court can proceed to pass the

sentence.

3. This new provision in Section 235(2) is in consonance with

the modern trends in penology and sentencing procedures.

There was no such provision in the old Code. Under the old

Code, whatever the accused wished to submit in regard to

the sentence had to be stated by him before the argumentss

concluded and the judgment was delivered. There was no

separate stage for being heard in regard to sentence. The

accused had to produce material and make his submissions

in regard to sentence on the assumption that he was

ultimately going to be convicted. This was most

unsatisfactory. The legislature, therefore, decided that it is

only when the accused is convicted that the question of

sentence should come up for consideration and at that

stage, an opportunity should be given to the accused to be

heard in regard to the sentence. Moreover, it was realised

that sentencing is an important stage in the process of

administration of criminal justice- as important as the

adjudication of guilt-and it should not be consigned to a

subsidiary position as if it were a matter of not much

consequence. It should be a matter of some anxiety to the

court to impose an appropriate punishment on the criminal

and sentencing should, therefore, receive serious attention

of the court.

…..The reason is that a proper sentence is the amalgam

of many factors such as the nature of the offence, the

circumstances-extenuating or aggravating- of the offence,

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

the offender, the record of the offender as to employment,

the background of the offender with reference to education,

home life, sobreity and social adjustment, the emotional and

mental condition of ‘the offender, the prospects for the

rehabilitation of the offender, the possibility of treatment or

training of the offender, the possibility that the sentence

may serve as a deterrent to crime by the offender or by

others and the current community need, if any, for such a

deterrent in respect to the particular type of offence. These

are factors which have to be taken into account by the court

in deciding upon the appropriate sentence, and, therefore,

the legislature felt that, for this purpose, a separate stage

should be provided after conviction when the court can hear

the accused in regard to these factors bearing on sentence

and then pass proper sentence on the accused.

4. ….The hearing on the question of sentence, would be

rendered devoid of all meaning and content and it would

become an idle formality, if it were confined merely to

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hearing oral submissions without any opportunity being

given to the parties and particularly to the accused, to

produce material in regard to various factors bearing on the

question of sentence, and if necessary, to lead evidence for

the purpose of placing such material before the court.

21. In Santa Singh (supra), Bhagwati, J. set aside the sentence of

death and remanded the case to the Sessions Court with a direction

to pass appropriate sentence after giving an opportunity to the

petitioner in the aforesaid case of being heard with regard to the

question of sentence, in accordance with the provisions of Section

235(2) CrPC as interpreted in Santa Singh (supra).

22. In Dagdu and Others vs. State of Maharashtra

5

, a three-

Judge Bench of this Court referred to Santa Singh (supra) and held

that the mandate of Section 235(2) CrPC had to be obeyed in letter

and spirit. Chandrachud, J. held:-

“79. … The Court, on convicting an accused, must

unquestionably hear him on the question of sentence.

But if, for any reason, it omits to do so and the accused

makes a grievance of it in the higher court, it would be

open to that Court to remedy the breach by giving a

hearing to the accused on the question of sentence.

That opportunity has to be real and effective, which

means that the accused must be permitted to adduce

before the Court all the data which he desires to adduce

on the question of sentence. The accused may exercise

that right either by instructing his counsel to make oral

submissions to the Court or he may, on affidavit or

otherwise, place in writing before the Court whatever

he desires to place before it on the question of

sentence. The Court may, in appropriate cases, have to

adjourn the matter in order to give to the accused

sufficient time to produce the necessary data and to

make his contentions on the question of sentence. That,

perhaps, must inevitably happen where the conviction

is recorded for the first time by a higher court.”

5 (1977) 3 SCC 68

10

23.In Machhi Singh & Others vs. State of Punjab

6

, this

Court held:-

“38. … (iv) A balance sheet of aggravating and

mitigating circumstances has to be drawn up and in

doing so the mitigating circumstances have to be

accorded full weightage and a just balance has to be

struck between the aggravating and the mitigating

circumstances before the option is exercised.”

24.In Santosh Kumar Satishbhushan Bariyar vs. State of

Maharashtra

7

, this Court observed and held:-

“157. The doctrine of proportionality, which appears to

be the premise whereupon the learned trial Judge as

also the High Court laid its foundation for awarding

death penalty on the appellant herein, provides for

justifiable reasoning for awarding death penalty.

However, while imposing any sentence on the accused

the court must also keep in mind the doctrine of

rehabilitation. This, considering Section 354(3) of the

Code, is especially so in the cases where the court is to

determine whether the case at hand falls within the

rarest of the rare case.

158. The reasons assigned by the courts below, in our

opinion, do not satisfy Bachan Singh test. Section

354(3) of the Code provides for an exception. General

rule of doctrine of proportionality, therefore, would not

apply. We must read the said provision in the light of

Article 21 of the Constitution of India. Law laid down by

Bachan Singh and Machhi Singh interpreting Section

354(3) of the Code should be taken to be a part of our

constitutional scheme.

159. Although the Constitutional Bench judgment of

the Supreme Court in Bachan Singh did not lay down

any guidelines on determining which cases fall within

the “rarest of rare” category, yet the mitigating

circumstances listed in and endorsed by the judgment

give reform and rehabilitation great importance, even

requiring the State to prove that this would not be

possible, as a precondition before the court awarded a

6 (1983) 3 SCC 470

7 (2009) 6 SCC 498

11

death sentence. We cannot therefore determine

punishment on grounds of proportionality alone. There

is nothing before us that shows that the appellant

cannot reform and be rehabilitated.

162. Further indisputably, the manner and method of

disposal of the dead body of the deceased was

abhorrent and goes a long way in making the present

case a most foul and despicable case of murder.

However, we are of the opinion, that the mere mode of

disposal of a dead body may not by itself be made the

ground for inclusion of a case in the “rarest of rare”

category for the purpose of imposition of the death

sentence. It may have to be considered with several

other factors.

25.In Ajay Pandit and Another vs. State of Maharashtra

8

,

this Court held:-

“47. Awarding death sentence is an exception, not the

rule, and only in the rarest of rare cases, the court could

award death sentence. The state of mind of a person

awaiting death sentence and the state of mind of a

person who has been awarded life sentence may not be

the same mentally and psychologically. The court has

got a duty and obligation to elicit relevant facts even if

the accused has kept totally silent in such situations. In

the instant case, the High Court has not addressed the

issue in the correct perspective bearing in mind those

relevant factors, while questioning the accused and,

therefore, committed a gross error of procedure in not

properly assimilating and understanding the purpose

and object behind Section 235(2) CrPC.”

26.In Mohinder Singh vs. State of Punjab

9

, this Court held:-

“22. The doctrine of “rarest of rare” confines two

aspects and when both the aspects are satisfied only

then the death penalty can be imposed. Firstly, the

case must clearly fall within the ambit of “rarest of

rare” and secondly, when the alternative option is

unquestionably foreclosed. Bachan Singh suggested

selection of death punishment as the penalty of last

resort when, alternative punishment of life

imprisonment will be futile and serves no purpose.

8 (2012) 8 SCC 43

9 (2013) 3 SCC 294

12

23. In life sentence, there is a possibility of achieving

deterrence, rehabilitation and retribution in different

degrees. But the same does not hold true for the death

penalty. It is unique in its absolute rejection of the

potential of convict to rehabilitate and reform. It

extinguishes life and thereby terminates the being,

therefore, puts an end to anything to do with life. This

is the big difference between two punishments. Thus,

before imposing death penalty, it is imperative to

consider the same. The “rarest of rare” dictum, as

discussed above, hints at this difference between

death punishment and the alternative punishment of

life imprisonment. The relevant question here would be

to determine whether life imprisonment as a

punishment would be pointless and completely devoid

of any reason in the facts and circumstances of the

case. As discussed above, life imprisonment can be

said to be completely futile, only when the sentencing

aim of reformation can be said to be unachievable.

Therefore, for satisfying the second aspect to the

“rarest of rare” doctrine, the court will have to provide

clear evidence as to why the convict is not fit for any

kind of reformatory and rehabilitation scheme”.

27. In Panchhi and Others vs. State of U.P.

10

, this Court

observed:-

“20. … No doubt brutality looms large in the murders in

this case particularly of the old and also the tender-

aged child. It may be that the manner in which the

killings were perpetrated may not by itself show any

lighter side but that is not very peculiar or very special

in these killings. Brutality of the manner in which a

murder was perpetrated may be a ground but not the

sole criterion for judging whether the case is one of the

‘rarest of rare cases’ as indicated in Bachan Singh

case.”

28. In Mukesh and Another v. State (NCT of Delhi) and

Others

11

, a three-Judge Bench of this Court considered the earlier

judgments of this Court referred to above and deemed it appropriate

10 (1998) 7 SCC 177

11 (2017) 3 SCC 717

13

to give opportunity to the accused to file affidavits to bring on record

mitigating circumstances for reduction of the sentence.

29. In Haru Ghosh v. State of W.B.

12

, this Court commuted

death sentence to life imprisonment in case of a dastardly murder of

two helpless persons for no fault of theirs. This Court, however, in

commuting death sentence took into consideration the following

factors:-

i.There was no pre-mediation on the part of the accused;

ii.The act was on the spur of the moment;

iii.The accused was not armed with any weapon;

iv.It was unknown under what circumstances the accused

had entered the house of the deceased and what prompted

him to assault the boy; and

v.The cruel manner in which the murder was committed

could not be the guiding factor and the accused himself had

two minor children.

30. In Haru Ghosh (supra), this Court observed, “….the cruel

manner in which the murder was committed and the subsequent

action on the part of the accused in severing the parts of the body of

the deceased, do not by themselves become the guiding factor in

favour of death sentence.”

31. In Lehna v. State of Haryana

13

, this Court observed and

held that the mental condition of the accused which led to the assault

could not be ignored, though the same may not be relevant to judge

12 (2009) 15 SCC 551

13 (2002) 3 SCC 76

14

culpability. It is certainly a factor while considering the question of

sentence.

32. In the aforesaid case even though three lives had been lost by

reason of the crime, this Court modified the punishment by

commuting death sentence to life imprisonment, observing that there

was no evidence of any diabolic planning to commit the crime,

though the act was cruel.

33. Learned counsel appearing on behalf of the applicant

submitted that since his arrest on 28.2.2004 the applicant has

undergone about 15 years in custody and 11 years as a convict

sentenced to death, lodged in virtual solitary confinement in a single

cell high security ward in Bhagalpur Prison in Bihar.

34. In Shatrughan Chauhan and Anr. vs. Union of India &

Ors.

14

, this Court considered and discussed the possibility of

condemned convicts, who are sentenced to death developing mental

disorder, upon reference to relevant provisions of the U.P. Jail Manual

and similar provisions of other jail manuals. This Court observed:

“86. The above materials, particularly, the directions of

the United Nations international conventions, of which

India is a party, clearly show that insanity/mental

illness/schizophrenia is a crucial supervening

circumstance, which should be considered by this Court

in deciding whether in the facts and circumstances of

the case death sentence could be commuted to life

imprisonment. To put it clear, “insanity” is a relevant

supervening factor for consideration by this Court.

87. In addition, after it is established that the death

convict is insane and it is duly certified by the

competent doctor, undoubtedly, Article 21 protects him

and such person cannot be executed without further

clarification from the competent authority about his

14 (2014) 3 SCC 1

15

mental problems. It is also highlighted by relying on

commentaries from various countries that civilised

countries have not executed death penalty on an

insane person. ………. In view of the well-established

laws both in the national as well as international

sphere, we are inclined to consider insanity as one of

the supervening circumstances that warrants for

commutation of death sentence to life imprisonment.”

35. In Shatrughan Chauhan (supra), this Court also referred to

Sunil Batra vs. Delhi Administration & Ors.

15

, and reiterated

that if solitary confinement was illegal, the same punishment could

not be scuffled into the legal system by naming it differently. If

prolonged solitary confinement of a death sentence convict is a

ground for commutation of death sentence, solitary confinement, in

effect, on ground of high security or otherwise would also be a

ground for commutation of death sentence.

36. Counsel further submitted that the Trial Court has convicted

the petitioner and sentenced him to death considering the inhuman

and brutal nature of the crime alone. The findings of the Trial Court

with regard to the criminal antecedents is not based on any cogent

materials. The Trial Court merely recorded the submission of the

public prosecutor that the petitioner had been accused in another

trial in which the petitioner had “managed his acquittal in the garb of

compromise”(para 29).

37. Citing the judgment of this Court in Birju vs. State of

Madhya Pradesh

16

Counsel submitted, and rightly that only

convictions which have attained finality can be considered as

15 (1978) 4 SCC 494

16 (2014) 3 SCC 421

16

“aggravating circumstances”.

38. Counsel submitted that the Trial Court did not give opportunity

to the petitioner to show mitigating circumstances, notwithstanding a

duty to hear the accused under Section 235(2) of the Code of

Criminal Procedure (Cr.PC) on the question of sentence.

39. As argued by learned counsel appearing on behalf of the

petitioner, the accused had the right to be provided with legal aid at

all stages, including the stage of consideration of the question of

sentence. After the conviction of the petitioner, he should have been

given the benefit of being accompanied by a social worker to guide

and counsel him and also to help him to get an effective hearing on

the question of sentence.

40. In this case, the petitioner was not accompanied by a social

worker. Furthermore the legal aid provided to the petitioner was

inadequate. The legal aid lawyer representing the applicant argued

against the conviction, but did not seek the opportunity to draw

attention of the Court to mitigating circumstances for imposition of

sentence of life imprisonment in place of death. He only submitted

that the petitioner had falsely been implicated.

41. For effective hearing under Section 235(2) of the Code of

Criminal Procedure, the suggestion that the court intends to impose

death penalty should specifically be made to the accused, to enable

the accused to make an effective representation against death

sentence, by placing mitigating circumstances before the Court. This

has not been done. The Trial Court made no attempt to elicit relevant

17

facts. Nor did the Trial Court give any opportunity to the petitioner

the opportunity to file an affidavit placing on record mitigating

factors. As such the petitioner has been denied an effective hearing.

42. Contrary to the dictum of this Court, inter alia, in Dagdu

(supra) and Santa Singh (supra) the petitioner was not given a

real, effective and meaningful hearing on the question of sentence

under Section 235(2) of the Cr.P.C. The death sentence imposed on

the petitioner is liable to be commuted to life imprisonment on this

ground.

43. The records reveal that after the judgment and order of

conviction was pronounced on 29.5.2007, the matter was directed to

be put up on 31.5.2007 for hearing on the point of sentence.

However, on the same day i.e., 29.5.2007 itself the petitioner was

produced from jail custody and death sentence was imposed. The

order imposing the death sentence is extracted hereinbelow for

convenience:-

“26.Convict Md. Mannan @ Abdul Mannan

produced from jail custody.

27.Heard learned P.P and learned lawyer for the

convict on the point of passing sentence against the

convict.

28.Learned lawyer for the convict has again

repeated in his submission that the convict has been

falsely implicated in this case.

29.On the other learned P.P. has firmly asserted

that the guilt of the convict in respect of the charges

framed against him has been proved beyond shadow of

all reasonable doubts which can only be treated as

barbarous act and crime against the whole society

beyond imagination. It is also submitted that the

18

convict was an accused in another S.T. No.172/93 which

was disposed by the Court of Learned District &

Sessions Judge, Darbhanga on 18.9.1993 in which the

convict managed his acquittal in the garb of

compromise. It is submitted by the learned P.P. to

award maximum sentence against the convict in this

case.

30.Considering the submission of the respective

sides and nature of the charges against the convict I

find that the guilt of the convict is not only heinous and

barbarous but crime against the society in general. The

convict has been found guilty of rape and murder of a

minor girl committed in a gruesome and premeditated

manner after kidnapping her which can only be treated

as inhuman and brutal act.

31.The purpose of law will be served by awarding

maximum sentence against the convict. Convict Md.

Mannan @ Abdul Mannan is therefore sentenced to

undergo R.I. for 10 years for charge u/s 366 A IPC, R.I.

for life for charge u/s 376 I.P. and R.I. for seven years for

charge u/s 201 IPC and awarded death sentence for

charge u/s 302 IPC. All the sentence except sentence

for charge u/s 302 IPC shall run concurrently till

execution of death sentence for charge u/s 302 I.P.C.

whereby the convict shall be hanged by the neck till his

death.

32. Let entire proceeding of this case be

transmitted to the Hon’ble High Court, Patna for

confirmation of capital punishment.”

44. On a perusal of the order of sentence, it is patently clear that

the learned lawyer representing the petitioner only submitted that

the petitioner had falsely been implicated in the case. He did not at

all make any submission with regard to the sentence. He did not

seek further time to prepare himself, though the question of life and

death of a convict was involved. The Trial Court proceeded on the

basis of the submission of the learned Public Prosecutor that the

charges had been proved beyond reasonable doubt.

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45. The Trial Court found, and rightly, that the crime committed

was barbarous, and a crime against society, beyond imagination.

The question is whether death penalty should have been imposed.

46. The Trial Court has apparently been swayed by the submission

of the learned Public Prosecutor that the convict, that is, the

petitioner, had been an accused in another Sessions Trial being ST

No.172/93 which was disposed of by the Court of the learned District

and Sessions Judge, Darbhanga on 18.9.1993. The Trial Court

commented that “the convict managed his acquittal in the garb of

compromise”.

47. The Trial Court has apparently not perused the order dated

18.9.1993 passed by the Court of the District and Sessions Judge,

Darbhanga on 18.9.1993. The petitioner having been acquitted by a

Court of law, the Trial Court ought not to have been swayed by the

unsubstantiated submission of the learned Public Prosecutor that the

convict “had managed” his acquittal.

48. The Trial Court found the guilt of the convict i.e. the petitioner,

not only heinous and barbarous, but a crime against society in

general, as he had been found guilty of rape and murder of a minor

girl, committed in a gruesome and per-meditated manner, after

kidnapping her, which could only be termed as inhuman and brutal.

49. There can be no doubt that rape and murder of a 8 year old

girl shocks the conscience. It is barbaric. There is, however, no

evidence to support the finding that the murder was pre-meditated.

The petitioner did not carry any weapon. Moreover, the Trial Court

20

has apparently not considered the question of whether the crime is

the rarest of rare crimes as mandated by the Supreme Court in

Bachan Singh (supra).

50. The reasoning of the High Court for confirming the extreme

penalty of death sentence is extracted hereinbelow for convenience:-

“26.The trial court has awarded the extreme penalty of death

sentence to the appellant on the basis of submissions in

respect of criminal antecedents of the appellants and also on

the finding that the guilt is not only heinous and barbarous but

crime against the society in general. It has been submitted

that the criminal antecedents of the appellant should not have

been taken into consideration by the trial court and hence the

special reasons give by the trial court for awarding death

penalty is vitiated in law.

27.I have considered the entire facts and the aforesaid

submissions for deciding whether the death penalty awarded

to the appellant should be confirmed or not. In this regard it is

noticed that appellant is a matured man aged about 42-43

years. He has committed the heinous and barbarous crime of

rape and murder of a girl aged about 7 years who was thin

built and of 4’ height. Such a child was incapable of arousing

lust in normal situation. She was kidnapped in a planned

manner because she was innocent and could not understand

the design of the appellant. She became helpless victim of a

diabolic middle aged man whom the child could trust as an

elder person. The medical evidence shows the cruel manner of

causing injuries on the face, nails and body of the child at the

time of committing rape which was followed by murder. This

was all pre-planned as is apparent from the manner of

kidnapping and selection of a lonely place where crime was

committed and body concealed. Crime of this nature against a

child girl is definitely a crime against the society. The facts of

the case, the offences taken together along with the age of the

victim and the age of the appellant clearly bring the case in the

category of ‘rarest of the rare cases” in which interest of justice

requires award of maximum penalty. In such a case award of a

lesser punishment would not be appropriate and adequate.

Hence even after ignoring the material regarding criminal

antecedents of the appellant, I am of the view that the

appellant deserves extreme penalty of death. Hence, the

death penalty awarded to the appellant by the trial court is

confirmed and the reference is answered in affirmative. The

appeal of the appellant is dismissed.”

21

51. As argued by learned counsel appearing on behalf of the

petitioner, the High Court found the offence to be in the category of

rarest of the rare cases, having regard to the nature of the offence

and the age of the victim. The fact that no criminal antecedents had

been brought on record has casually been brushed aside as

irrelevant.

52. Counsel submitted, and rightly, that the High Court failed to

appreciate that the Trial Court had erred in law in awarding death

penalty, by proceeding on the basis that the petitioner had a criminal

history, when he had been acquitted.

53. The High Court upheld the death penalty by concluding that

the convict deserved death penalty “even after ignoring the material

regarding criminal antecedents of the appellant”. The High Court

has not apparently considered the mitigating circumstances. This

Court confirmed the death sentence on consideration of the brutality

and heinousness of the crime and the age of the victim and formed

opinion that the petitioner was a menace to the society and would

continue to be so. He could not be reformed.

54. Counsel submitted that the brutality of the crime and age of

the victim was not ground enough to inflict death sentence.

Furthermore, the opinion of this Court that the petitioner would be a

menace to society and could not be reformed had no basis. Learned

counsel submitted that the petitioner had been convicted on

circumstantial evidence, based on faulty investigation.

22

55. Counsel submitted that even though Dr. P.K. Das (4

th

Prosecution Witness) had collected the vaginal swab of the victim,

which upon examination showed “few intact spermatozoa”, no DNA

analysis was conducted or sought to be conducted by the prosecution

for which adverse inference might be drawn. In support of the

aforesaid submission, counsel placed reliance on Kalu Khan v.

State of Rajasthan

17

and Santosh Kumar (supra).

56. Notwithstanding the omission of the prosecution to conduct

DNA analysis the Trial Court may have found the evidence sufficient

to convict the petitioner. Moreover, as rightly argued by Counsel,

the quality of evidence is a factor relevant to sentencing.

57. In Ramesh and Others v. State of Rajasthan

18

, this Court

observed and held:-

“68. Practically, the whole law on death sentence was

referred to in Santosh Kumar case. In para 56, the Court

observed: (SCC p. 527)

‘56. … The court must play a proactive role to

record all relevant information at this stage. Some

of the information relating to crime can be culled

out from the phase prior to sentencing hearing.

This information would include aspects relating to

the nature, motive and impact of crime, culpability

of convict, etc. Quality of evidence is also a

relevant factor. For instance, extent of reliance on

circumstantial evidence or child witness plays an

important role in the sentencing analysis. But what

is sorely lacking, in most capital sentencing cases,

is information relating to characteristics and socio-

economic background of the offender. This issue

was also raised in the 48th Report of the Law

Commission.’”

58. In Ram Deo Prasad v. State of Bihar

19

, this Court referred

17 (2015) 16 SCC 492

18 (2011) 3 SCC 685

19 (2013) 7 SCC 725

23

to and relied upon the earlier judgments of this Court in Santosh

Kumar Satishbhushan Bariyar (supra) and Ramesh and Others

(supra) and reaffirmed that the quality of evidence was also a

relevant factor in considering the question of death sentence. In the

aforesaid case, this Court felt it unsafe to confirm the death sentence

awarded for rape and murder of a four year old child.

59. In this case, the conviction of the petitioner is based on

circumstantial evidence and the alleged extra judicial confession

made by the petitioner to the police in course of investigation, on the

basis of which certain recoveries were made. There is no forensic

evidence against the petitioner. It would, in our view, be unsafe to

uphold the imposition of death sentence on the petitioner.

60. In Sushil Sharma vs. State (NCT of Delhi)

20

this Court

considered the peculiar facts of the case and did not award the death

penalty since the only evidence was circumstantial and there were

some factors that were to the advantage of the appellant. This Court

held:

“101. We notice from the above judgments that mere

brutality of the murder or the number of persons killed or

the manner in which the body is disposed of has not

always persuaded this Court to impose death penalty.

Similarly, at times, in the peculiar factual matrix, this

Court has not thought it fit to award death penalty in

cases, which rested on circumstantial evidence or solely

on approver’s evidence.”

61. In Kalu Khan (supra), this Court referred to its earlier

decision in Swamy Shraddananda (2) @ Murali Manohar Mishra

20 (2014) 4 SCC 317

24

vs. State of Karnataka

21

and held, in the facts of the case, the

balance of circumstances introduced an uncertainty in the

“culpability calculus” and therefore there was an alternative to the

imposition of the death penalty. Accordingly, the sentence was

commuted to imprisonment for life.

62. In Santosh Kumar (supra) this Court clearly held that while

there is no prohibition in law in awarding a death sentence in a case

of circumstantial evidence, but that evidence must lead to an

exceptional case. It was said:

“167. The entire prosecution case hinges on the evidence

of the approver. For the purpose of imposing death

penalty, that factor may have to be kept in mind. We will

assume that in Swamy Shraddananda (20, this Court did

not lay down a firm law that in a case involving

circumstantial evidence, imposition of death penalty would

not be permissible. But, even in relation thereto the

question which would arise would be whether in arriving at

a conclusion some surmises, some hypothesis would be

necessary in regard to the manner in which the offence

was committed as contradistinguished from a case where

the manner of occurrence had no role to play. Even where

sentence of death is to be imposed on the basis of

circumstantial evidence, the circumstantial evidence must

be such which leads to an exceptional case.”

63. In Sebastian @ Chevithiyan vs. State of Kerala

22

, this

Court held:

“18. We are of the opinion that in the background of

these facts, the death penalty ought to be converted to

imprisonment for life but in terms laid down by this Court

in Swamy Shraddanada (2) vs. State of Karnataka [(2008)

13 SCC 767] as his continuance as a member of an

ordered society is uncalled for..”

64. Counsel finally submitted that the legal aid lawyer

21 (2008) 13 SCC 767

22 (2010) 1 SCC 58

25

representing the petitioners had a positive onus to lead evidence

regarding the possibility of reformation of the petitioner which he did

not discharge. The evidence on reformation had to be independent

of the circumstances of the crime. In this context, reliance has been

placed on Rajesh Kumar (supra), Santosh Kumar Satishbhushan

Bariyar (supra) and Lehna (supra).

65. Counsel argued that legal representation provided to the

petitioner was ineffective at all stages. The petitioner was not

represented by counsel before the Trial Court, at the time of framing

of charge on 21.2.2004. On 6.6.2005 the petitioner made a request

for legal aid. During the sentencing the Counsel did not even seek

time to place mitigating circumstances.

66. Learned counsel submitted that legal representation was not

only ineffective in the Trial Court but also before the High Court and

before this Court. Ineffective legal representation to defend the

convict on the question of punishment is no legal representation and

a ground for commutation of death sentence. This proposition finds

support from the judgment of this Court in Ram Deo Prasad (supra).

67. The learned counsel has drawn the attention of this Court to

various orders of this Court where this Court has considered

mitigating circumstances and commuted death sentence in cases

involving rape and murder of a minor. Unfortunately, those orders

could not be placed before the Trial Court. Had those orders been

noticed, the petitioner may not have been awarded death sentence.

68. Relying on Mukesh and Anr. (supra), Counsel submitted that

26

this Court can call for affidavit or materials gathered by the

petitioner’s counsel, to fix the lacunae in sentencing in the the courts

below. The legal representatives of the petitioner have conducted

interviews with the petitioner and his family members and the

following factors require consideration:-

(i)Petitioner has lived his entire life in poverty.

(ii)He has never access to formal education

(iii)He started working at the age of 15 when his father was

incapacitated for the remainder of his life after suffering a

stroke.

(iv)Petitioner was married at the age of 22 and has five

dependent children

(v) The petitioner struggled to support his wife and children

(vi)The family is in abject poverty.

69. Counsel further submitted that during conversation with the

petitioner, he was found to lose sense of reality and talk about being

possessed by imaginary personalities which he described as jinns.

He claimed to lose control over his thoughts and actions when

possessed. Counsel submitted that the petitioner suffered from

instability of mind. In this regard, it has been submitted that:-

(i) petitioner had received multiple near fatal injuries in

his head in the course of his life which have caused

persistent headaches, loss of memory and disorientation.

(ii) The petitioner had been diagnosed and treated for

meningeal tuberculosis or Brain TB for a year and half at

Darbhanga Medical College around the year 1990.

Unfortunately records of the time cannot be traced.

(iii) Socio-economic conditions of the petitioner made it

impossible for the petitioner to avail effective treatment

for his mental instability.

70. There are transcripts of a consulting psychiatrist, Dr. Kaustubh

27

Joag, who opined on 29.10.2008 that there is “a strong possibility

that the petitioner might be suffering from organic (neurological)

and/or mental health issues” and advised an assessment on the

psychosis spectrum and on the organic brain damage which might

have altered his behaviour. A copy of the opinion of Dr. Kaustubh

Joag, MD has been made over. Dr. Joag is apparently a Psychiatrist of

standing registered with Maharashtra Medical Council, who has

several publications and is recipient of awards.

71. Counsel submits that if this Court gives the applicant an

opportunity, an affidavit shall be filed placing the abovementioned

factors on record. Counsel submits that in the light of deficient

sentencing procedure as pointed out, this Court may consider the

socio-economic conditions and the mental illness concerns of the

petitioner as also other mitigating factors such as absence of criminal

antecedents on record, to commute the death sentence imposed on

the petitioner, to life imprisonment.

72. The review petition, filed about eight years ago, was as

observed above, dismissed by circulation on 24.08.2011. Even

thereafter, for almost three years the death sentence was not

executed. This application for reopening the review and hearing the

same in Open Court, has also been pending for over four years.

Calling for affidavits would only delay the matter. The petitioner has

for all these years virtually been in solitary confinement on some

ground, may be the ground of his own security. This Court might also

take judicial notice of the opinion of the psychiatrist, Dr. Joag which

28

reveals that the petitioner is not mentally sound.

73. In Lehna (supra) Shatrughan Chauhan (supra), this Court

held that mental illness is one of the supervening circumstances in

commutation of death sentence to life imprisonment. The aforesaid

view was confirmed by this Court in Navneet Kaur v. State (NCT

of Delhi) and Another

23

.

74. The proposition of law which emerges from the judgments

referred to above is itself death sentence cannot be imposed except

in the rarest of rare cases, for which special reasons have to be

recorded, as mandated in Section 354(3) of the Criminal Procedure

Code. In deciding whether a case falls within the category of the

rarest of rare, the brutality, and/or the gruesome and/or heinous

nature of the crime is not the sole criterion. It is not just the crime

which the Court is to take into consideration, but also the criminal,

the state of his mind, his socio-economic background, etc. Awarding

death sentence is an exception, and life imprisonment is the rule.

75. Therefore, before imposing the extreme penalty of death

sentence, the Court would have to satisfy itself that death sentence is

imperative, as otherwise the convict would be a threat to society, and

that there is no possibility of reform or rehabilitation of the convict,

after giving the convict an effective, meaningful, real opportunity of

hearing on the question of sentence, by producing materials.

76. The legal assistance provided to the convict at every stage

including the stage of hearing on the question of sentence has to be

23 (2014) 7 SCC 264

29

effective and even if the accused has remained silent, the Court

would be obliged and duty bound to elicit relevant factors.

Opportunity should have been given to the convict to bring on record

mitigating circumstances for reduction of the sentence and a balance

struck between the aggravating and the mitigating circumstance.

77. The petitioner, as observed above, did not get the benefit of

competent legal assistance. The Trial Court also did not make any

attempt to elicit materials relevant to the imposition of death

sentence. No affidavit was called for. The question of whether there

were any mitigating circumstances was not addressed by the Trial

Court or the appellate courts.

78. As observed above, even though the hearing under Section

235(2) on the question of sentence was fixed on 31.5.2007, that is,

two days after pronouncement of the judgment and order of

conviction of the petitioner, on 29.5.2007, the hearing was preponed

to 29.5.2007 itself after the petitioner was produced from jail custody

and death sentence was imposed.

79. Imposition of death sentence on the same day after

pronouncement of the judgment and order of conviction may not, in

itself, vitiate the sentence, provided the convict is given a meaningful

and effective hearing on the question of sentence under Section

235(2) Cr.P.C with opportunity to bring on record mitigating factors.

80. Preponement by the Trial Court of hearing under Section

235(2) Cr. P.C at short notice, which is in effect, no notice, appears to

have denied the petitioner an effective hearing. The hearing under

30

Section 235(2) was reduced to a mere formality. The Court hastily

proceeded to impose death sentence considering the dastardly

nature of the crime for which the petitioner had been convicted.

81. In this case, an eight year old innocent girl fell prey to the

carnal desire and lust of the petitioner. It is not known whether there

was any pre-meditation on the part of the petitioner to murder the

victim. The circumstances in which he murdered the victim are also

not known. The conviction is based on circumstantial evidence and

extra judicial confession made by the petitioner to the police in

course of investigation. There can be no doubt that the crime is

abhorrent, but it is doubtful as to whether the crime committed by

the petitioner can be termed as “rarest of the rare”.

82. There is also no material at all, not to speak of cogent

material, to establish that the appellant was incapable of being

reformed, that he would remain a threat to society, and that the only

punishment that could be given, having regard to the nature of the

crime, is death sentence.

83. The mere fact that the petitioner and/or his Counsel chose to

remain silent on the question of sentence and did not make any

submission with regard to the same in the Trial Court or the Higher

Appellate Courts, does not debar the petitioner from agitating the

existence of mitigating circumstances at this stage, since principles

of constructive res judicata can have no application to matters

relating to life and death.

84. It is open to the Court to either remit the question of sentence

31

to the Trial Court for fresh consideration, after giving adequate

opportunity of hearing or to remedy the breach by giving the

petitioner a hearing, as held in Dagdu (supra). On overall

consideration of all relevant facts and circumstances including the

long pendency of proceedings, we have opted for the latter course.

85. It is well recognised worldwide, that owing to the difficult

circumstances prevailing in prisons, such as, enforced solitude,

inadequate health care, loss of livelihood etc., prisoners often

develop mental illness after their admission into prison. The

petitioner has been undergoing prolonged confinement which is

solitary in effect for all practical purposes, though not termed solitary

confinement. This Court, in the case of Shatrughan Chauhan

(supra), while strongly relying upon international Conventions, has

held “insanity” to be a pertinent supervening factor which must be

taken into consideration by the courts while awarding death penalty.

Moreover, this Court had held therein that Article 21 protects such

persons from being executed without obtaining further clarification

from the competent authority. Lastly, placing reliance upon laws

operating in both international as well as national arenas, this Court

concluded that mental illness is a relevant factor which warrants

commutation of death sentence to life imprisonment.

86. It is also pertinent to note herein that the relevant Prison Rules

also recognise the phenomenon of post-conviction mental illness and

state that the execution of such persons shall be deferred, pending

32

orders of the Government

24

. In th elight of the aforesaid

considerations, we conclude that the mental health of the petitioner

at the time of execution is a relevant mitigating factor which must be

taken into consideration in the present case. As observed above,

there are materials put forward now, in the form of medical opinion,

which show that the petitioner is not mentally sound. For the reasons

discussed above, we are of the view that it would not be appropriate

and/or safe to affirm the death sentence awarded to the petitioner.

87. In Swamy Shraddananda (supra), this court held:

“92. The matter may be looked at from a slightly different

angle. The issue of sentencing has two aspects. A

sentence may be excessive and unduly harsh or it may be

highly disproportionately inadequate. When an appellant

comes to this Court carrying a death sentence awarded by

the trial court and confirmed by the High Court, this Court

may find, as in the present appeal, that the case just falls

short of the rarest of the rare category and may feel

somewhat reluctant in endorsing the death sentence. But

at the same time, having regard to the nature of the

crime, the Court may strongly feel that a sentence of life

imprisonment subject to remission normally works out to

a term of 14 years would be grossly disproportionate and

inadequate. What then should the Court do? IF the Court’s

option is limited only to two punishments, one a sentence

of imprisonment, for all intents and purposes, of not more

than 14 years and the other death, the Court may feel

tempted and find itself nudged into endorsing the death

penalty. Such a course would indeed be disastrous. A far

more just, reasonable and proper course would be to

expand the options and to take over what, as a matter of

fact, lawfully belongs to the Court i.e. the vast hiatus

between 14 years’ imprisonment and death. It needs to

be emphasised that the Court would take recourse to the

expanded option primarily because in the facts of the

case, the sentence of 14 year’s imprisonment would

amount to punishment at all.”

88. In Mulla and Another v. State of U.P.

25

, this Court has

24 Bihar Prisons Manual 2012, Rule 642

25 (2010) 3 SCC 508

33

affirmed that it is open to the Court to prescribe the length of

incarceration. This is especially true in cases where death sentence

has been replaced by the life imprisonment. This Court observed,

“the court should be free to determine the length of imprisonment

which will suffice the offence committed.”

89. Even though life imprisonment means imprisonment for entire

life, convicts are often granted reprieve and/or remission of sentence

after imprisonment of not less than 14 years. In this case,

considering the heinous, revolting, abhorrent and despicable nature

of the crime committed by the petitioner, we feel that the petitioner

should undergo imprisonment for life, till his natural death and no

remission of sentence be granted to him.

90. We, therefore, commute the death sentence imposed on the

petitioner to life imprisonment, till his natural death, without reprieve

or remission.

91. The review petition is accordingly disposed of.

.……………................................J.

(N. V. RAMANA)

.…………...................................J.

(MOHAN M. SHANTANAGOUDAR)

…………….................................J.

(INDIRA BANERJEE)

FEBRUARY 14, 2019

NEW DELHI