Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1278-1279 OF 2010

Mohinder Singh .... Appellant(s)

Versus

State of Punjab .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) These appeals are filed against the common final

judgment and order dated 30.05.2008 passed by the High

Court of Punjab and Haryana at Chandigarh in Murder

Reference No. 8 of 2007 and Criminal Appeal No. 1033-DB of

2007 whereby the High Court accepted the murder reference

and confirmed the death sentence imposed on the appellant

herein by the Sessions Judge, Ludhiana by order dated

22.11.2007 in Session Case No. 32 of 2006 and dismissed

the appeal filed by him.

1

Page 2 2)Brief facts:

(a)According to the prosecution, on 08.01.2006, the

appellant-accused has committed murder of his wife-Veena

Verma and daughter-Geetu Verma in the background of

inimical relationship between them on account of criminal

cases registered against him by his wife for committing rape

on his minor daughter–Geetu Verma, for which he was

sentenced to rigorous imprisonment for 12 years, and for

attacking her after release on parole in January, 2005 for

which an FIR was registered against him.

(b) On the date of incident, i.e., 08.01.2006, at around 06:30

p.m., when Shalu Verma-the complainant, daughter of the

appellant-accused was present along with her mother-Veena

Verma and sister-Geetu Verma in their house at village

Partap Singh Wala, Haibowal, Ludhiana, at that time, the

appellant-accused, who was living separately in a rented

accommodation, came to the said place carrying a Kulhara

(axe) in his hand. The complainant informed her mother

about the same. When Veena Verma came to the lobby of

the house, the appellant-accused gave an axe blow on her

2

Page 3 head. She fell on the ground and, thereafter, he gave two

more blows using axe on her neck and hand. Immediately

after that, he stepped towards Geetu Verma and gave 3

repeated blows on her head. Both of them smeared with

blood and died on the spot. When he approached Shalu, she

went into the room and bolted the same from inside. The

appellant-accused fled away leaving the axe at the spot.

After sometime, she came outside the room and raised hue

and cry.

(c)On the basis of the statement of Shalu (PW-2), a First

Information Report (FIR) being No. 6 was registered against

the appellant-accused under Section 302 of the Indian Penal

Code, 1860 (in short “the IPC”) at P.S. Haibowal, Ludhiana.

On the same day, the appellant-accused was arrested from

his rented house and the case was committed to the Court of

Session, Ludhiana and numbered as Session Case No. 32 of

2006

(d)The Sessions Judge, Ludhiana, by order dated

22.11.2007, convicted the appellant under Section 302 of IPC

and sentenced him to death.

3

Page 4 (e)Against the said order, the appellant preferred an

appeal before the High Court and the State filed a reference

under Section 366 of the Code of Criminal Procedure, 1973

(in short ‘the Code’) for confirmation of death sentence. By a

common impugned order dated 30.05.2008, the High Court

while accepting the murder reference confirmed the death

reference imposed by the trial Court and dismissed the

appeal filed by the appellant-accused.

(f)Aggrieved by the said judgment, the appellant

preferred these appeals by way of special leave before this

Court.

(g)This Court, by order dated 20.07.2009, issued notice on

the special leave petitions confining to sentence only. Even

on 16.07.2010 when this Court granted leave, nothing has

been stated about the above said initial notice. Hence, in

these appeals, we are concerned about the quantum of

sentence imposed on the appellant.

3)Heard Mr. Tripurari Raj, learned counsel for the

appellant and Mr. V. Madhukar, learned Additional Advocate

General for the respondent-State.

4

Page 5 4)Though at the outset, learned counsel for the appellant

insisted us to go into the entire merits of the case including

the circumstances relied on by the prosecution and accepted

by the Courts below, in view of the fact that this Court has

issued notice confining to sentence only, we rejected his

plea.

5)We are conscious of the fact that in terms of Section

366(1) of the Code, when the Court of Session passes a

sentence of death, the proceedings shall be submitted to the

High Court, and the sentence shall not be executed unless it

is confirmed by the High Court. The scope and application of

the above section is only in cases where a sentence of death

has been passed by the Court of Session. The Court of

Session should refer the proceedings to the High Court and

the High Court can only deal with them as a Court of

reference. It is the practice of the High Court to be satisfied

on the facts as well as the law of the case, that the conviction

is right, before it proceeds to confirm that sentence. In other

words, the High Court has to come to its own independent

conclusion as to the guilt or innocence of the accused,

5

Page 6 independently of the opinion of the Judge. In a reference for

confirmation of death sentence, the High Court must

examine the entire evidence for itself independent of the

Session Court’s views. While confirming the capital

sentence, the High Court is under an obligation to itself

consider what sentence should be imposed and not be

content with the trial Court’s decision on the point unless

some reason is shown for reducing the same. Where, in

addition to an appeal filed by an accused sentenced to

death, the High Court has to dispose of the reference for

confirmation of death sentence under Section 366 of the

Code, the High Court, while dealing with reference, should

consider the proceedings in all its aspects and come to an

independent conclusion on the material on record apart from

the views expressed by the Sessions Judge. The confirmation

of death sentence cannot be based only on the precedents

and or aggravating facts and circumstances of any other

case.

6)Keeping the above principles in mind, let us analyze the

materials placed before the trial Judge as well as the

6

Page 7 confirmation order of the High Court. In view of the limited

notice and in the light of the mandates provided under

Section 366 of the Code relating to confirmation of death

sentence by the High Court, we are of the view that

considering two earlier orders passed by this Court on

20.07.2009 and 16.07.2010 confining to the sentence, we

intend to concentrate only to the question, namely,

acceptability or otherwise of the “sentence” hereunder.

7)No doubt, it is a case of double murder by the appellant-

accused who murdered his wife and daughter in a gruesome

manner in the background of inimical relationship between

the family on account of criminal cases registered against

the appellant-accused at the instance of his deceased wife –

Veena Verma and deceased daughter- Geetu Verma for

which he was sentenced to rigorous imprisonment for 12

years’ for committing rape on his daughter-Geetu Verma. In

that case his deceased wife was a witness. It is seen that

after release on parole in January, 2005, he attacked on his

wife and an FIR was registered against him for violating the

conditions of release. It is further seen that the accused

7

Page 8 committed the offence in the presence of his youngest

daughter Shalu (PW-2). It is also proved that the appellant

had entered the scene of occurrence to commit the said

offence carrying a deadly weapon i.e. ‘Kulhara’ (Axe) which

was used in the commission of both the killings. The

members present in the house were his family members,

viz., wife and two daughters.

8)We noticed the following special reasons given by the

trial Court for warranting the death sentence and the High

Court for confirming the same which are as follows:

i)The appellant-accused had earlier committed rape on

his deceased daughter – Geetu Verma in the year 1999 when

she was a minor after giving beatings and threat to her and

in that case his wife-Veena Verma (since deceased) was a

witness and that a case under Sections 376 and 506 IPC was

registered against him which finally resulted in rigorous

imprisonment for 12 years.

ii)While on parole in January 2005, the appellant-accused

having violated the conditions of release, attacked his wife-

Veena Verma and an FIR being No. 58 dated 06.04.2005 was

8

Page 9 registered against him under Sections 323, 324 and 506 IPC

which is pending in the Court of JMIC, Ludhiana on the date of

alleged occurrence.

iii)The appellant-accused entered into the house with a

deadly weapon ‘Kulhara’ (Axe) and caused unprovoked

brutal attacks on the victims.

iv)The appellant-accused caused repeated blows on the

vital parts of the body of his wife and daughter resulting in

instantaneous deaths in the presence of his youngest

daughter of tender age, who by running into a room and

bolting its from inside, saved herself when the accused

proceeded towards her.

v) The appellant-accused gave first blow to his wife – Veena

Verma from behind with Kulhara (axe) on her head and when

she fell down on the ground he caused successive blows on

her neck and the head and, thereafter, he attacked his

daughter–Geetu Verma and caused repeated Kulhara blows

till her death. Thereafter, he proceeded towards his

youngest daughter Shalu (PW-2) and showed Kulhara to her,

who ran into a room and bolted it from inside.

9

Page 10 vi)In the case of the deceased - Veena Verma, out of 4

incised wounds, Injury Nos. 1 & 2 were caused on head,

Injury No.3 on neck and Injury No. 4 resulted in partial

amputation of left index finger from 1/3

rd

with clean cut

margins. Regarding the deceased - Geetu Verma, who had

been earlier subjected to diabolical act of rape by the

appellant-accused during her minority in 1999, as many as 9

injuries were caused, out of which 7 were incised wounds and

2 were abrasions. Further, out of 7 incised wounds 3 had

been caused on head region itself, 1 on the left mastoid and

rest 3 on left and right elbow and fingers. In both the cases,

the victims died instantaneous death.

vii)Apart from taking revenge for his conviction and

sentence, the appellant-accused has committed the offence

for personal gain as he wanted the house, being occupied by

his deceased wife and children, to be vacated for his

personal use.

9)The crime of double murder of his wife and daughter in

a gruesome and diabolical manner will irrefutably be taken

into consideration as aggravating circumstance. However,

10

Page 11 for some reasons, the High Court did not find any mitigating

circumstance in favour of the accused for the purpose of

balancing aggravating against mitigating. Even, the High

Court recorded at page 38 of the impugned order as under:-

“… In this background, looking for a strong mitigating

circumstance, may not yield any result and this offence

has in fact, ceased to remain a simple case of murder.

This has rather acquired an enormity to the extent of

rushing into the category of the “rarest of rare case.”

It is pertinent to mention that in spite of the onerous duty

bestowed on the reference court to balance the aggravating

and mitigating circumstances, the High Court evaded the

same.

10)On the other hand, the Sessions Court had attempted to

draw a balance of aggravating and mitigating circumstances

by stating two mitigating circumstances as follows:

1.Firstly, his age at the time of commission of crime

i.e. 41 years.

2.Secondly, that the accused is a poor man, who had

no livelihood.

While it is true that the above two circumstances alone will

not make good for commuting the death sentence to life

11

Page 12 sentence, however, before we move on to enumerate the

other mitigating circumstances in this case, it is necessary to

consider few case laws which reiterate that brutality is not

the sole criterion of determining whether a case falls under

the “rarest of rare” categories.

11)In Panchhi & Ors. vs. State of U.P., (1998) 7 SCC

177, this Court held that brutality is not the sole criterion of

determining whether a case falls under the “rarest of rare”

categories, thereby justifying the commutation of a death

sentence to life imprisonment. This Court observed:

“No doubt brutality looms large in the murders in this case

particularly of the old and also the tender age child. It

may be that the manner in which a murder was

perpetrated may be a ground but not the sole criterion for

judging whether the case is one of the “rarest of rare

cases” as indicated in Bachan Singh’s case.”

12)The Constitution Bench of this Court, by a majority,

upheld the constitutional validity of death sentence in

Bachan Singh vs. State of Punjab, (1980) 2 SCC 684. This

Court took particular care to say that death sentence shall

not normally be awarded for the offence of murder and that

it must be confined to the “rarest of rare” cases when the

alternative option is foreclosed. In other words, the

12

Page 13 Constitution Bench did not find death sentence valid in all

cases except in the aforesaid cases wherein the lesser

sentence would be wholly inadequate.

13)In Machhi Singh and Ors. vs. State of Punjab ,

(1983) 3 SCC 470, a three-Judge Bench of this Court while

following the ratio in Bachan Singh (supra) laid down

certain guidelines amongst which the following is relevant in

the present case:

“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.”

14)We have extracted the above reasons of the two courts

only to point out that, in a way, every murder is brutal, and

the difference between the one from the other may be on

account of mitigating or aggravating features surrounding

the murder.

15)In the instant case, as already mentioned, the accused

had earlier committed rape on his deceased daughter-Geetu

Verma in 1999 and in that case, his deceased wife - Veena

Verma was a witness wherein the accused was convicted

13

Page 14 under Sections 376 and 506 IPC and sentenced to RI for 12

years. It is also subsequently taken on record that his

deceased wife sent the accused out of his house and as a

consequence, he had to live separately in a rented house

with no means of livelihood. It was thirst for retaliation,

which became the motivating factor in this case. In no words

are we suggesting that the motive of the accused was

correct rather we feel it does not come within the category of

“rarest of rare” case to award death penalty.

16)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 (supra) suggested selection of death punishment as

the penalty of last resort when, alternative punishment of life

imprisonment will be futile and serves no purpose.

17)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

14

Page 15 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

anything to do with the life. This is the big difference

between two punishments. Thus, before imposing death

penalty, it is imperative to consider the same.

18)“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.

15

Page 16 19)Treating the case on the touchstone of the guidelines

laid down in Bachan Singh (supra), Machhi Singh

(supra) and other decisions and balancing the aggravating

and mitigating circumstances emerging from the evidence

on record, we are not persuaded to accept that the case can

appropriately be called the “rarest of rare” case warranting

death penalty. We also find it difficult to hold that the

appellant is such a dangerous person that sparing his life will

endanger the community. We are also not satisfied that the

circumstances of the crime are such that there is no other

alternative but to impose death sentence even after

according maximum weightage to the mitigating

circumstances in favour of the accused. In our considered

view, this case is the one in which humanist approach must

be taken in the matter of awarding punishment.

20)It is well settled law that awarding of life sentence is a

rule and death is an exception. The application of the “rarest

of rare” case principle is dependant upon and differs from

case to case. However, the principles laid down and

reiterated in various decisions of this Court show that in a

16

Page 17 deliberately planned crime, executed meticulously in a

diabolic manner, exhibiting inhuman conduct in a ghastly

manner, touching the conscience of everyone and thereby

disturbing the moral fiber of the society, would call for

imposition of capital punishment in order to ensure that it

acts as a deterrent. While we are convinced that the case of

the prosecution based on the evidence adduced confirms the

commission of offence by the appellant, however, we are of

the considered opinion that still the case does not fall within

the four corners of the “rarest of rare” case.

21) Life imprisonment cannot be equivalent to imprisonment

for 14 years or 20 years or even 30 years, rather it always

means the whole natural life. This Court has always clarified

that the punishment of a fixed term of imprisonment so

awarded would be subject to any order passed in exercise of

clemency powers of the President of India or the Governor of

the State, as the case may be. Pardons, reprieves and

remissions under Article 72 or Article 161 of the Constitution

of India are granted in exercise of prerogative power. As

observed in State of Uttar Pradesh vs. Sanjay Kumar ,

17

Page 18 (2012) 8 SCC 537, there is no scope of judicial review of such

orders except on very limited grounds such as the non-

application of mind while passing the order, non-

consideration of relevant material, or if the order suffers from

arbitrariness. The power to grant pardons and to commute

sentences is coupled with a duty to exercise the same fairly,

reasonably and in terms of restrictions imposed in several

provisions of the Code.

22)In order to check all arbitrary remissions, the Code itself

provides several conditions. Sub-sections (2) to (5) of

Section 432 of the Code lay down basic procedure for making

an application to the appropriate Government for suspension

or remission of sentence either by the convict or someone on

his behalf. We are of the view that exercise of power by the

appropriate Government under sub-section (1) of Section

432 of the Code cannot be suo motu for the simple reason

that this is only an enabling provision and the same would be

possible subject to fulfillment of certain conditions. Those

conditions are mentioned either in the Jail Manual or in

statutory rules. This Court in various decisions has held that

18

Page 19 the power of remission cannot be exercised arbitrarily. In

other words, the decision to grant remission has to be well

informed, reasonable and fair to all concerned. The statutory

procedure laid down in Section 432 of the Code itself

provides this check on the possible misuse of power by the

appropriate Government. As rightly observed by this Court

in Sangeet and Anr. vs. State of Haryana , 2012 (11)

Scale 140, there is misconception that a prisoner serving life

sentence has an indefeasible right to release on completion

of either 14 years or 20 years imprisonment. A convict

undergoing life imprisonment is expected to remain in

custody till the end of his life, subject to any remission

granted by the appropriate Government under Section 432 of

the Code which in turn is subject to the procedural checks

mentioned in the said provision and further substantive

check in Section 433-A of the Code.

23)One significant factor in this case, which we should not

loose sight of is that he did not harm his other daughter,

namely, Shallu (PW-2) even though he had a good chance for

the same. Further, it was highlighted that he being a poor

19

Page 20 man and unable to earn his livelihood since he was driven

out of his house by his deceased wife. It is also his claim that

if he was allowed to live in the house, he could easily meet

both his ends and means, as the money which he was

spending by paying rent would have been saved. It is his

further grievance that his deceased wife was adamant and

he should live outside and should not lead a happy married

life and that was the reason that their relations were

strained. This also shows that the accused was feeling

frustrated because of the attitude of his wife and children.

Moreover, the probability of the offender’s rehabilitation and

reformation is not foreclosed in this case. Likewise, we can

see from the affidavit filed by the sister of the accused that

his family has not totally renounced as yet. This is also clear

that pending the above appeals, the appellant-accused,

through his sister – Pramjit Kaur, filed an application for

modification of earlier orders of this Court dated 20.07.2009

and 16.07.2010 for widening the scope of the appeals and

sought permission to raise all available grounds. For this

application, only his sister – Pramjit Kaur has filed an affidavit

20

Page 21 strengthening the above points. As mentioned above, the

affidavit of his sister shows that his family has not totally

renounced him. Hence, there is a possibility for reformation

in the present appellant. Keeping in mind all these

materials, we do not think that the present case warrants the

award of the death penalty.

24)For the reasons aforementioned, we are of the opinion

that this is not a case where death penalty should be

imposed. The appellant-accused, therefore, instead of being

awarded death penalty, is sentenced to undergo rigorous

imprisonment for life, meaning thereby, the end of his life but

subject to any remission granted by the appropriate

Government satisfying the conditions prescribed in Section

432 of the Code and further substantiate check under

Section 433-A of the Code by passing appropriate speaking

orders. The appeals are disposed of on the above terms.

………………… ..………….…………………………J.

(P. SATHASIVAM)

..……………….………….………………………..…J.

(FAKIR MOHAMED IBRAHIM KALIFULLA)

21

Page 22 NEW DELHI;

JANUARY 28, 2013.

22

Page 23 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1278-1279 OF 2010

Mohinder Singh ….Appellant

VERSUS

State of Punjab ….Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.I had the opportunity of reading the judgment of my

learned brother Justice P. Sathasivam who has dealt with the

issue in extenso while modifying the death sentence to one

of imprisonment for life i.e. till the end of his life. I only wish

to supplement my views while fully endorsing and concurring

with the judgment of His Lordship Justice P. Sathasivam.

Since, the facts have been elaborately stated in the

judgment of His Lordship Justice P. Sathasivam, I do not

refer the same in detail. For the purpose of my reasoning, in

toeing with the conclusion of His Lordship Justice P.

Sathasivam, I only wish to refer to certain factors to support

our conclusions.

23

Page 24 2.These appeals were entertained on 20.07.2009,

however, while issuing notice, the appeals were confined to

sentence only. The appellant was found guilty of the offence

under Section 302 IPC and was sentenced to death for

committing the murder of his wife Veena Verma and his

daughter Geetu Verma on 08.01.2006 in the area of Pratap

Singh Wala, Ludhiana. The above appeals arose out of the

confirmation of death sentence in Murder Reference

No.8/2007 as well as the connected Criminal Appeal

No.1033-DB of 2007 filed by the appellant.

3.It is necessary to state that the appellant indulged in

grotesque crime of murdering his wife and daughter one

after another on 08.01.2006. The motive for such a heinous

crime was that there was a dispute between him and his wife

Veena Verma as regards the house which he owned and that

he was deprived of having access to his own house. In fact it

was a matter of record that in the year 1999 there was an

FIR against the appellant in FIR No.27 wherein the appellant

24

Page 25 was charged for offences under Sections 376 and 506 IPC for

having committed rape on his deceased daughter Geetu

Verma which ended in a conviction of 12 years rigorous

imprisonment by judgment dated 15.05.2001. There was yet

another FIR No.58 dated 06.04.2005 against the appellant

for offences under Sections 323 and 506 IPC for having

assaulted and for having given threat to his wife Veena

Verma which was also proved as per Ex.PAA. There was yet

another record of criminal case No.2531 dated 01.08.2005

(FIR No.58 of 2005) again for offences under Sections 323

and 324 IPC which was pending in the Court of JMIC,

Ludhiana. In fact, the present offence of murder of his wife

and daughter was committed by the appellant when he was

on parole while undergoing rigorous imprisonment of 12

years for the conviction of the offence of rape of his daughter

committed in the year 1999. It was also relevant to keep in

mind that for holding the appellant guilty of the charge of

murder of his wife and daughter apart from the other

evidence, the evidence of his own minor daughter Shalu

25

Page 26 PW.2 who was an eye-witness to the occurrence weighed to

very great extent along with the evidence of his own son

Malkiat Singh PW.7.

4.The trial Court having noted the above factors held that

having regard to his involvement in various criminal cases in

the past as well as the gravity of the offence of murder of his

own wife and daughter, whom the appellant felt were

responsible for his conviction for the offence of rape

committed on his own minor daughter, took the view by

stating elaborate reasons as to why the case fell within the

principles of ‘rarest of rare cases’ for the award of death

sentence and inflicted the same on him.

5.The High Court after setting out the principles laid down

in the celebrated Constitution Bench decisions of this Court in

Bachan Singh Vs. State of Punjab – (1980) 2 SCC 684

and the subsequent judgment in Machhi Singh and others

Vs. State of Punjab – (1983) 3 SCC 470 held that the

26

Page 27 murder reference deserved to be accepted and the death

sentence was, therefore, confirmed. The Division Bench of

the High Court took into account the circumstances which

are to be kept in mind for applying the ‘rarest of the rare

case’ theory based on the above referred two decisions and

noted the same as under:

“I.Manner of commission of murder.

II.Motive for commission of murder.

Anti-social or socially abhorrent nature of the crime.

Magnitude of crime

Personality of victim of murder.”

6.The High Court has also noted the injuries found on the

body of the deceased insofar as it related to Veena Verma,

the wife of the appellant, who suffered four incised wounds of

which injury No. 1 was on the right lateral side and upper

part of the neck and injury No.2 was on the head, third one

was on the neck and fourth one resulted in partial

amputation of left index finger from its lower one-third with

clean cut margins. As far as the deceased daughter Geetu

Verma is concerned, there were as many as nine injuries out

27

Page 28 of which seven were incised wounds and two were abrasions.

Out of the seven incised wounds three were caused on the

head region itself, fourth was on the left mastoid and the

remaining three were on left and right elbow and fingers.

Both the victims had instantaneous death. The basic

grievance of the appellant was nothing but his desire to

occupy his house which was occupied by none else than his

own wife, daughters and son.

7.By noting the special reasons, the Division Bench held

that the conduct of the appellant in causing the murder of his

wife and daughter acquired enormity to the extent that the

case was fully governed by the principle of ‘rarest of rare

cases’ and ultimately held that the imposition of death

sentence by the trial Court was fully justified.

8.In this context we analyzed the various principles laid

down in the subsequent decisions reported in Swamy

Shraddananda @ Murali Manohar Mishra Vs. State of

Karnataka - (2008) 13 SCC 767 , Santosh Kumar

28

Page 29 Satishbhushan Bariyar Vs. State of Maharashtra -

(2009) 6 SCC 498, Mohd. Farooq Abdul Gafur & Anr. Vs.

State of Maharashtra -(2010) 14 SCC 641, Haresh

Mohandas Rajput Vs. State of Maharashtra -(2011) 12

SCC 56, State of Maharashtra Vs. Goraksha Ambaji

Adsul - AIR 2011 SC 2689 and the recent decision reported

in Mohammed Ajmal Mohammadamir Kasab @ Abu

Mujahid Vs. State of Maharashtra - JT 2012 (8) SC 4.

From conspectus consideration of the above decisions apart

from the four principles laid down in Bachan Singh (supra)

and also the requirement of a balance sheet of aggravating

and mitigating circumstances, the following principles are

required to be borne in mind:

(i) A conclusion as to the ‘rarest of rare’

aspect with respect to a matter shall

entail identification of aggravating and

mitigating circumstances relating both to

the crime and the criminal.

(ii)The expression ‘special reasons’

obviously means (‘exceptional reasons’)

founded on the exceptionally grave

29

Page 30 circumstances of the particular case

relating to the crime as well as the

criminal.

(iii)The decision in Ravji @ Ram Chandra

Vs. State of Rajasthan – (1996) 2 SCC

175 which was subsequently followed in

six other cases, namely, Shivaji @

Dadya Shankar Alhat Vs. State of

Maharashtra - (2008) 15 SCC 269,

Mohan Anna Chavan Vs. State of

Maharashtra - (2008) 7 SCC 561,

Bantu Vs. State of Uttar Pradesh -

(2008) 11 SCC 113, Surja Ram Vs.

State of Rajasthan -(1996) 6 SCC 271,

Dayanidhi Bisoi Vs. State of Orissa -

(2003) 9 SCC 310 and State of Uttar

Pradesh Vs. Sattan @ Satyendra &

Ors. - (2009) 4 SCC 736 wherein it was

held that it is only characteristics

relating to crime, to the exclusion of the

ones relating to criminal, which are

relevant to sentencing in criminal trial,

was rendered per incuriam qua Bachan

Singh (supra) in the decision reported

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Page 31 in Santosh Kumar Satishbhushan

Bariyar (supra) at 529.

(iv)Public opinion is difficult to fit in the

‘rarest of rare’ matrix. People’s

perception of crime is neither an

objective circumstance relating to crime

nor to the criminal. Perception of public

is extraneous to conviction as also

sentencing, at least in capital sentencing

according to the mandate of Bachan

Singh (supra). (2009) 6 SCC 498 at

p.535.

(v) Capital sentencing is one such field

where the safeguards continuously take

strength from the Constitution.

(2009) 6 SCC 498 at 539.

(vi)The Apex Court as the final reviewing

authority has a far more serious and

intensive duty to discharge and the

Court not only has to ensure that award

of death penalty does not become a

perfunctory exercise of discretion under

Section 302 after an ostensible

consideration of ‘rarest of rare’ doctrine,

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Page 32 but also that the decision-making

process survives the special rigours of

procedural justice applicable in this

regard. (2010) 14 SCC 641 at 692.

(vii)The ‘rarest of rare’ case comes when a

convict would be a menace and threat to

the harmonious and peaceful

coexistence of the society. The crime

may be heinous or brutal but may not be

in the category of “the rarest of the rare

case”. There must be no reason to

believe that the accused cannot be

reformed or rehabilitated and that he is

likely to continue criminal acts of

violence as would constitute a continuing

threat to the society. 2011 (12) SCC 56

at p.63 para 20.

(viii) Life sentence is the rule and the

death penalty is the exception. The

condition of providing special reasons for

awarding death penalty is not to be

construed linguistically but it is to satisfy

the basic features of a reasoning

supporting and making award of death

penalty unquestionable.

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Page 33 (ix) The

circumstances and the manner of committing

the crime should be such that it pricks the

judicial conscience of the Court to the extent

that the only and inevitable conclusion should be

awarding of death penalty.(AIR 2011 SC 2689)

(x) When the case falls

under the category of ‘rarest of rare’ case

penalty of death is clearly called for and any

leniency shown in the matter of sentence would

not only be misplaced but will certainly give rise

to and foster a feeling of private revenge among

the people leading to destabilization of the

society.(AIR 1983 SC 585)

(xi) Death penalty

has been held to be constitutionally valid. The

test is what case would attract death penalty if

not the case of the appellant. JT (2012) 8 SC 4.

9.Keeping the above settled principles in mind, when we

examine the case on hand, it is needless to state that the

conduct of the appellant, if analyzed, based on the previous

crimes committed by him, we find that in the year 1999 as

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Page 34 found by the courts below the appellant committed rape on

his deceased daughter Geetu Verma when she was minor

and that too after beating her. To which beastly action,

unfortunately the other deceased (viz) his wife, was an eye-

witness. One cannot comprehend to visualize a situation of

such nature in which father himself committed rape on his

own minor daughter in the presence of her own mother. The

conduct of the appellant in the commission of the said

offence was not only bordering on immorality of the highest

order but would be extremely difficult for anyone to lightly

brush aside such a conduct by stating that either it was

committed in a fit of anger or rage or such other similar

situation. If such grotesque offence of rape had been

committed by anyone, other than the father himself, the

victim would have had every opportunity to cry for solace in

her father or mother. In this context, we are only reminded

of the Tamil proverb “ேவலிேய பயிைர ேமயநத கைத” which means

in English “When the fence eats the crops ”. When the

father himself happens to be the assailant in the commission

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Page 35 of such beastly crime, one can visualize the pathetic situation

in which the girl would have been placed and that too when

such a shameless act was committed in the presence of her

own mother. When the daughter and the mother were able

to get their grievances redressed by getting the appellant

convicted for the said offence of rape one would have in the

normal course expected the appellant to have displayed a

conduct of remorse. Unfortunately, the subsequent conduct

of the appellant when he was on parole disclosed that he

approached the victims in a far more vengeful manner by

assaulting the hapless victims which resulted in filing of an

FIR once in the year 2005 and subsequently when he was on

parole in the year 2006. The monstrous mindset of the

appellant appears to have not subsided by mere assault on

the victims who ultimately displayed his extreme inhuman

behaviour by eliminating his daughter and wife in such a

gruesome manner in which he committed the murder by

inflicting the injuries on the vital parts of the body of the

deceased and that too with all vengeance at his command in

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Page 36 order to ensure that they met with instantaneous death. The

nature of injuries as described in the postmortem report

speaks for itself as to the vengeance with which the appellant

attacked the hapless victims. He was not even prepared to

spare his younger daughter (viz) PW-2 who, however,

escaped the wrath of the appellant by bolting herself inside a

room after she witnessed the grotesque manner in which the

appellant took away the life of his wife and daughter.

10.Be that as it may when we come to the question of

applying the various principles culled out from the decisions

right from the Constitution Bench decision in Bachan Singh

(supra) right up to the case Mohammed Ajmal

Mohammadamir Kasab (supra) as held by my learned

brother Justice P. Sathasivam for the various reasons

referred to therein, we find that the case still does not fall

within the category of ‘rarest of rare case’ though it calls for

a stringent punishment. Therefore, while modifying the

sentence from one of death penalty to that of life

imprisonment till the end of his life we apply the earliest

36

Page 37 decision of this Court reported in Gopal Vinayak Godse Vs.

State of Maharashtra & Ors. - AIR 1961 SC 600 wherein

this Court held in paragraph 5 as under:

“It does not say that transportation for life shall be

deemed to be transportation for twenty years for

all purposes; nor does the amended section which

substitutes the words ‘imprisonment for life’ for

‘transportation for life’ enable the drawing of any

such all-embracing fiction. A sentence of

transportation for life or imprisonment for life must

prima facie be treated as transportation or

imprisonment for the whole of the remaining

period of the convicted person’s natural life.”

11.The said principle was followed subsequently in Mohd.

Munna Vs. Union of India and Ors. - (2005) 7 SCC 417.

Applying the above decisions, we have no hesitation in

holding that the appellant deserves to be sentenced to

undergo rigorous imprisonment for life meaning thereby the

end of his life subject, however, to remission granted by the

appropriate Government satisfying the conditions prescribed

in Section 432 of the Code of Criminal Procedure and further

substantiate check under Section 433A of the Code by

passing appropriate speaking orders.

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Page 38

…………………………………………J.

[Fakkir Mohamed Ibrahim Kalifulla]

New Delhi;

January 28, 2013

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