R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 1 of 43

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRIMINAL) NO S. 306-307 OF 2013

IN

CRIMINAL APPEAL NO S. 145-146 OF 2011

Rajendra Pralhadrao Wasnik ....Petitioner

versus

State of Maharashtra ....Respondent

J U D G M E N T

Madan B. Lokur, J

1. ‘Sentenced to death’ – these few words would have a chilling effect

on anyone, including a hardened criminal. Our society demands such a

sentence on grounds of its deterrent effect, although there is no conclusive

study on its deterrent impact. Our society also demands death sentence as

retribution for a ghastly crime having been committed, although again

there is no conclusive study whether retribution by itself satisfies society.

On the other hand, there are views that suggest that punishment for a crime

must be looked at with a more humanitarian lens and the causes for driving

a person to commit a heinous crime must be explored. There is also a view

that it must be determined whether it is possible to reform, rehabilitate and

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 2 of 43

socially reintegrate into society even a hardened criminal along with those

representing the victims of the crime.

2. These conflicting views make it very difficult for courts to take a

decision and without expert evidence on the subject, courts are ill-equipped

to form an objective opinion. But, a Constitution Bench of this Court in

Bachan Singh v. State of Punjab

1

has thrown its weight behind a

humanitarian approach and mandated consideration of the probability of

reform or rehabilitation of the criminal and required the prosecution to

prove that it was not possible for the convict to be reformed or

rehabilitated. However, the Constitution Bench left open a corridor of

uncertainty thereby permitting, in the rarest of rare cases, the

pronouncement of a sentence of death. It is this paradigm that confronts

us in these petitions.

Background

3. The appellant is convicted for the rape and murder of a girl aged 3

years. The offence was committed in the intervening night of 2

nd

and 3

rd

March, 2007. On the basis of circumstantial evidence led by the

prosecution, the appellant was found guilty of and convicted for offences

punishable under Sections 376(2)(f), 377 and 302 of the Indian Penal Code

(IPC) by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007

1

(1980) 2 SCC 684

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 3 of 43

by a judgment dated 6

th

September, 2008.

4. With regard to the sentence to be awarded, the Trial Judge heard the

prosecution and the appellant on 6

th

September, 2008 and again on 8

th

September, 2008 on which date he passed a preliminary order. The

submissions of the Public Prosecutor as well as the learned counsel for the

defence were heard on that date and reference was made to a decision of

this Court in Shivaji alias Dadya Shankar Alhat vs. State of

Maharashtra

2

. In the decision rendered by this Court it was observed in

paragraph 27 of the Report as follows:

“27. The plea that in a case of circumstantial evidence death

should not be awarded is without any logic. If the circumstantial

evidence is found to be of unimpeachable character in establishing

the guilt of the accused, that forms the foundation for conviction.

That has nothing to do with the question of sentence as has been

observed by this Court in various cases while awarding death

sentence. The mitigating circumstances and the aggravating

circumstances have to be balanced. In the balance sheet of such

circumstances, the fact that the case rests on circumstantial

evidence has no role to play. In fact in most of the cases where

death sentences are awarded for rape and murder and the like, there

is practically no scope for having an eyewitness. They are not

committed in the public view. But the very nature of things in such

cases, the available evidence is circumstantial evidence. If the said

evidence has been found to be credible, cogent and trustworthy for

the purpose of recording conviction, to treat that evidence as a

mitigating circumstance, would amount to consideration of an

irrelevant aspect. The plea of the learned amicus curiae that the

conviction is based on circumstantial evidence and, therefore,

the death sentence should not be awarded is clearly

unsustainable.” (Emphasis supplied by us).

2

(2008) 15 SCC 269

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 4 of 43

Thereafter, the learned Sessions Judge passed an order on 10

th

September,

2008 awarding the sentence of death to the appellant.

5. We have gone through the orders passed on 8

th

September, 2008 as

well as on 10

th

September, 2008 and find that the Sessions Judge has

primarily discussed the nature and gravity of the offence and certain factors

personal to the appellant such as the fact the he has a child who is 9 years

of age and his parents are dependent upon him. The Sessions Judge also

took into consideration the fact that there are two other cases pending

against the appellant under similar provisions of law and he expressed the

opinion that the pendency of those cases is a circumstance against the

appellant. For this, reliance was placed on State of Maharashtra v.

Shankar Krisanrao Khade

3

. It may be mentioned, en passant, that the

view of the Bombay High Court in Shankar was not accepted by this Court

in Shankar Kisanrao Khade v. State of Maharashtra

4

in paragraphs 60

and 61 of the Report.

6. On an overall view of the circumstances of the case, the Sessions

Judge concluded that any alternative option of punishment is

unquestionably foreclosed and therefore the only sentence that could be

awarded to the appellant is of capital punishment.

7. The appellant preferred an appeal against his conviction and

3

2008 ALL MR (Cri) 2143

4

(2013) 5 SCC 546

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 5 of 43

sentence before the Bombay High Court being Criminal Appeal No. 700

of 2008. This was heard along with Criminal Confirmation Case No. 3 of

2008. Both these were taken up for consideration and the conviction was

upheld and capital punishment awarded to the appellant was confirmed by

the High Court by a judgment and order dated 26

th

March, 2009.

8. The High Court considered the question of sentence to be awarded

to the appellant. (We are not concerned with the merits of the conviction).

It appears from a reading of the judgement that learned counsel for the

appellant argued in the Bombay High Court on the question of sentence

awarded to the appellant and the primary submission made for commuting

the death sentence to life imprisonment was that the case was one of

circumstantial evidence. Reference was made to Laxman Naik v. State of

Orissa

5

, Dhananjoy Chatterjee alias Dhana v. State of W.B.

6

, State of

Maharashtra v. Bharat Fakira Dhiwar

7

¸ State of Maharashtra v.

Suresh

8

, Adu Ram v. Mukna

9

and Molai and Another v. State of M.P.

10

9. Thereafter, the High Court held as follows:

“We have carefully considered the facts of the present case in light

of the above judicial precedents and find that the learned Trial

Judge rightly held that the appellant deserved capital punishment.

The appellants conduct exhibits total disregard for human

values and shows a totally depraved, brutal and scheming

mind taking advantage of a helpless child, showing no concern

5

(1994) 3 SCC 381

6

(1994) 2 SCC 220

7

(2002) 1 SCC 622

8

(2000) 1 SCC 471

9

(2005) 10 SCC 597

10

AIR 2000 SC 177 = (1999) 9 SCC 581

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 6 of 43

that his lust extinguished the flame of life in the child. We,

therefore, confirm the sentence of death imposed upon the

appellant for offence punishable under Section 302 of the Penal

Code. We also dismiss the convict’s appeal and maintain his

convictions as well as sentences imposed.” (Emphasis supplied by

us).

10. Feeling aggrieved by the decision rendered by the High Court, the

appellant preferred appeals in this Court being Criminal Appeal Nos. 145-

146 of 2011. These appeals were dismissed by a judgment and order dated

29

th

February, 2012

11

.

11. Review Petitions were then filed by the appellant being R.P. (C)

Diary No. 26107 of 2012 which came to be dismissed by an order dated 7

th

March, 2013.

12. Thereafter, in a completely different case, a Constitution Bench of

this Court in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of

India

12

considered two basic issues in cases where death sentence had been

pronounced by the High Court. These two issues were: (1) whether the

hearing of cases in which death sentence has been awarded should be by a

Bench of at least three if not five judges of this Court, and (2) whether the

hearing of review petitions in death sentence cases should not be by

circulation, but should only be in open court.

13. In considering these issues, the Constitution Bench held that

11

Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37

12

(2014) 9 SCC 737

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 7 of 43

henceforth in every appeal pending in this Court in which death sentence

has been awarded by the High Court, only a Bench of three judges will hear

the appeal. The Constitution Bench was not persuaded to accept the

submission that the appeal should be heard by five judges. With regard to

the oral hearing in open court, it was held that a limited oral hearing ought

to be given in cases where death sentence is awarded and that would be

applicable in pending review petitions and such review petitions filed in

future. This direction would also apply where a review petition is already

dismissed but the death sentence is not executed. In such cases, the convict

can apply for reopening the review petition within one month from the date

of the decision rendered by the Constitution Bench. However, in cases

where even a curative petition is dismissed, it would not be proper to

reopen such matters.

14. In the present appeal, a curative petition had not been filed by the

appellant and therefore in view of the decision of the Constitution Bench,

the review petitions were restored by an order dated 24

th

March, 2015 and

that is how they have come up for consideration before us after a gap of

more than 3½ years.

Submissions

15. It was submitted by learned counsel for the appellant that there are a

variety of factors that require to be taken into consideration while awarding

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 8 of 43

the death sentence, keeping in mind the view expressed by this Court in

Bachan Singh. Despite this, learned counsel confined himself to four

principal contentions before us only on the question of commuting the

death sentence to one of life imprisonment. The four contentions urged

were:

1. The conviction was based on circumstantial evidence

and in such cases, the death sentence should ordinarily

not be awarded.

2. The probability of reform and rehabilitation of the

appellant was not considered either by the Trial Court

or by the High Court or even by this Court despite

several decisions mandating such a consideration. It

was submitted that there is a probability that the

appellant can be reformed and rehabilitated.

3. Vital DNA evidence was not placed before the Trial

Court or taken into consideration contrary to the

provisions of Section 53-A of the Criminal Procedure

Code, 1973 (for short ‘Cr.P.C’)

13

and Section 164-A of

13

Section 53A. Examination of person accused of rape by medical practitioner. – (1) When a person

is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are

reasonable grounds for believing that an examination of his person will afford evidence as to the

commission of such offence, it shall be lawful for a registered medical practitioner employed in a

hospital run by the Government or by a local authority and in the absence of such a practitioner within

the radius of sixteen kilometers from the place where the offence has been committed by any other

registered medical practitioner acting at the request of a police officer not below the rank of a sub-

inspector, and for any person acting in good faith in his aid and under his direction, to make such an

examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such

person and prepare a report of his examination giving the following particulars, namely.–

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) Other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the

report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating

officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents

referred to in clause (a) of sub-section (5) of that section.

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 9 of 43

the Cr.P.C.

14

4. The reference to the past history of the appellant was not

warranted.

We propose to deal with the submissions in seriatim.

Circumstantial evidence

16. In the cases of Laxman Naik, Dhananjoy Chatterjee and Molai

referred to by the High Court, there is no discussion one way or the other

whether the death penalty should or should not be awarded on a conviction

based on circumstantial evidence. What was discussed was the brutality of

14

164A. Medical examination of the victim of rape. – (1) Where, during the stage when an offence of

committing rape or attempt to commit rape is under investigation, it is proposed to get the person of

the woman with whom rape is alleged or attempted to have been committed or attempted, examined

by a medical expert, such examination shall be conducted by a registered medical practitioner

employed in a hospital run by the Government or a local authority and in the absence of such a

practitioner, by any other registered medical practitioner, with the consent of such woman or of a

person competent to give such consent on her behalf and such woman shall be sent to such registered

medical practitioner within twenty-four hours from the time of receiving the information relating to

the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her

person and prepare a report of his examination giving the following particulars, namely:–

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to

give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the

report.

(6) The registered medical practitioner shall, without delay forward the report to the investigating

officer who shall forward it to the Magistrate referred to in section 173 as part of the documents

referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent

of the woman or of any person competent to give such consent on her behalf.

Explanation. – For the purposes of this section, “examination” and “registered medical practitioner”

shall have the same meanings as in section 53.

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 10 of 43

the crime which warranted the imposition of the death penalty. These

decisions do not take forward the case of the appellant.

17. We now consider the cases cited before us by learned counsel for the

parties on the award of death sentence based on circumstantial evidence.

18. In Bishnu Prasad Sinha v. State of Assam

15

this Court effectively

accepted the proposition in paragraph 55 of the Report that ordinarily death

penalty would not be awarded if the connection is proved by circumstantial

evidence, coupled with some other factors that are advantageous to the

convict. It was held as follows:

“55. The question which remains is as to what punishment should

be awarded. Ordinarily, this Court, having regard to the nature of

the offence, would not have differed with the opinion of the

learned Sessions Judge as also the High Court in this behalf, but it

must be borne in mind that the appellants are convicted only on the

basis of the circumstantial evidence. There are authorities for the

proposition that if the evidence is proved by circumstantial

evidence, ordinarily, death penalty would not be awarded.

Moreover, Appellant 1 showed his remorse and repentance even

in his statement under Section 313 of the Code of Criminal

Procedure. He accepted his guilt.” (Emphasis supplied by us).

19. In Aloke Nath Dutta v. State of West Bengal

16

the principle that

death penalty should ordinarily not be awarded in a case arising out of

circumstantial evidence was broadly accepted along with the rider that

there should be some “special reason” for awarding the death penalty. It

15

(2007) 11 SCC 467

16

(2007) 12 SCC 230

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 11 of 43

was held in paragraph 174 of the Report as follows:

“174. There are some precedents of this Court e.g. Sahdeo v. State

of U.P. [(2004) 10 SCC 682] and Sk. Ishaque v. State of Bihar

[(1995) 3 SCC 392] which are authorities for the proposition that

if the offence is proved by circumstantial evidence ordinarily

death penalty should not be awarded. We think we should

follow the said precedents instead and, thus, in place of awarding

the death penalty, impose the sentence of rigorous imprisonment

for life as against Aloke Nath. Furthermore we do not find any

special reason for awarding death penalty which is

imperative.” (Emphasis supplied by us).

20. In Swamy Shraddananda v. State of Karnataka

17

this Court

sounded a note of caution in paragraph 87 of the Report that convictions

based on seemingly conclusive circumstantial evidence should not be

presumed to be fool-proof. It was held:

“87. It has been a fundamental point in numerous studies in the

field of death penalty jurisprudence that cases where the sole

basis of conviction is circumstantial evidence, have far greater

chances of turning out to be wrongful convictions, later on, in

comparison to ones which are based on fitter sources of proof.

Convictions based on seemingly conclusive circumstantial

evidence should not be presumed as foolproof incidences and

the fact that the same are based on circumstantial

evidence must be a definite factor at the sentencing stage

deliberations, considering that capital punishment is unique in

its total irrevocability. Any characteristic of trial, such as

conviction solely resting on circumstantial evidence, which

contributes to the uncertainty in the culpability calculus, must

attract negative attention while deciding maximum penalty for

murder.” (Emphasis supplied by us).

21. In Swamy Shraddananda the view taken by Justice S.B. Sinha was

that on the facts of the case, death sentence was not warranted but that the

17

(2007) 12 SCC 288

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 12 of 43

appellant should be awarded life sentence which must be meant as sentence

for life. However, Justice Markandey Katju differed on the sentence to be

awarded and expressed the view that the case was one where the murder

was cold-blooded, calculated and diabolic. The learned Judge was of

opinion that the case fell within the category of rarest of rare cases and it

would be a travesty of justice if the death sentence is not affirmed.

Accordingly, the learned Judge affirmed the death sentence.

22. In view of the difference of opinion with regard to the quantum of

punishment, the matter was referred to a larger Bench of three learned

judges. The decision of the larger Bench is reported as Swamy

Shradddananda (2) v. State of Karnataka

18

.

23. The larger Bench took the view that the case was one of

circumstantial evidence only. However, considering the entire facts of the

case, the Bench expressed its opinion on the quantum of punishment taking

into consideration the gap in imprisonment between life imprisonment

(which is normally 14 years) and death. While considering this, it was held

that in view of the gap, the Court might be tempted into endorsing the death

penalty but that it would be far more just, reasonable and a proper course

of action to expand the options and bridge the gap. This would be a re-

assertion of the Constitution Bench decision in Bachan Singh besides

18

(2008) 13 SCC 767

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 13 of 43

being in accord with the modern trends of penology. Consequently, the

death sentence was unanimously substituted by life imprisonment with a

direction that the convict must not be released from prison for the rest of

his life or for the actual term as specified in the order, as the case may be.

The view expressed by Justice S.B. Sinha was endorsed and it was directed

that the convict shall not be released from prison till the rest of his life. The

view expressed by this Court in paragraphs 92 to 95 of the Report is

reproduced below:

“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 years' imprisonment would amount to no punishment at all.

93. Further, the formalisation of a special category of sentence,

though for an extremely few number of cases, shall have the great

advantage of having the death penalty on the statute book but to

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 14 of 43

actually use it as little as possible, really in the rarest of rare cases.

This would only be a reassertion of the Constitution Bench

decision in Bachan Singh [(1980) 2 SCC 684] besides being in

accord with the modern trends in penology.

94. In the light of the discussions made above we are clearly of the

view that there is a good and strong basis for the Court to

substitute a death sentence by life imprisonment or by a term

in excess of fourteen years and further to direct that the convict

must not be released from the prison for the rest of his life or for

the actual term as specified in the order, as the case may be.

95. In conclusion, we agree with the view taken by Sinha, J. We

accordingly substitute the death sentence given to the

appellant by the trial court and confirmed by the High Court

by imprisonment for life and direct that he shall not be

released from prison till the rest of his life. (Emphasis supplied

by us).”

24. In Santosh Kumar Satishbhushan Bariyar v. State of

Maharashtra

19

this Court clearly laid down the law in paragraph 167 of

the Report to the effect 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 (2), 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

19

(2009) 6 SCC 498

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 15 of 43

imposed on the basis of the circumstantial evidence, the

circumstantial evidence must be such which leads to an

exceptional case.” (Emphasis supplied by us).

25. In Sebastian v. State of Kerala

20

there is a brief reference to death

penalty in a case of circumstantial evidence in paragraphs 17 and 18 of the

Report. While commuting the death sentence to one of life imprisonment,

this Court relied upon Swamy Shraddananda (2) and held:

“17. The learned counsel for the appellant has finally urged that

the death sentence in the circumstances was not called for. He has

pointed out that the case rested on circumstantial evidence and

the death penalty should not ordinarily be awarded in such a case.

It has further been emphasised that the appellant was a young

man of 24 years of age at the time of the incident.

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 Shraddananda (2)

v. State of Karnataka [(2008) 13 SCC 767] as his continuance as

a member of an ordered society is uncalled for.” (Emphasis

supplied by us).

26. In Ramesh v. State of Rajasthan

21

this Court referred to Bariyar and

in paragraph 68 and paragraph 69 of the Report, it was held:

“68. ……… The Court, thus, has in a guided manner referred to

the quality of evidence and has sounded a note of caution that in a

case where the reliance is on circumstantial evidence, that factor

has to be taken into consideration while awarding the death

sentence. This is also a case purely on the circumstantial evidence.

We should not be understood to say that in all cases of

circumstantial evidence, the death sentence cannot be given.

20

(2010) 1 SCC 58

21

(2011) 3 SCC 685

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69. In fact in Shivaji v. State of Maharashtra this Court had

awarded death sentence though the evidence was of circumstantial

nature. All that we say is that the case being dependent upon

circumstantial evidence is one of the relevant considerations.

We have only noted it as one of the circumstances in formulating

the sentencing policy……...” (Emphasis supplied by us).

27. In Sushil Sharma v. State (NCT of Delhi)

22

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. It was held in paragraph 101 of the Report

as follows:

“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. Where murder, though brutal, is

committed driven by extreme emotional disturbance and it does

not have enormous proportion, the option of life imprisonment has

been exercised in certain cases…….” (Emphasis supplied by us).

28. Finally, in Kalu Khan v. State of Rajasthan

23

this Court referred to

Swamy Shraddananda and in paragraph 31 of the Report it was held, on

the facts of the case, that the balance of circumstances introduces an

uncertainty in the “culpability calculus” and therefore there was an

alternative to the imposition of the death penalty. Accordingly, the

22

(2014) 4 SCC 317

23

(2015) 16 SCC 492

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 17 of 43

sentence was commuted to imprisonment for life.

29. The result of the above discussion is that ordinarily, it would not be

advisable to award capital punishment in a case of circumstantial evidence.

But there is no hard and fast rule that death sentence should not be awarded

in a case of circumstantial evidence. The precautions that must be taken by

all the courts in cases of circumstantial evidence is this: if the court has

some doubt, on the circumstantial evidence on record, that the accused

might not have committed the offence, then a case for acquittal would be

made out; if the court has no doubt, on the circumstantial evidence, that the

accused is guilty, then of course a conviction must follow. If the court is

inclined to award the death penalty then there must be some exceptional

circumstances warranting the imposition of the extreme penalty. Even in

such cases, the court must follow the dictum laid down in Bachan Singh

that it is not only the crime, but also the criminal that must be kept in mind

and any alternative option of punishment is unquestionably foreclosed. The

reason for the second precaution is that the death sentence, upon execution,

is irrevocable and irretrievable.

30. Insofar as the present case is concerned, learned counsel for the

appellant did not lay much stress on commuting the death sentence to one

of life imprisonment only on the basis of the circumstantial evidence on

record. Therefore, we need not examine the nature of the crime and other

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 18 of 43

factors or detain ourselves in this regard. We have referred to the various

decisions cited by learned counsel only for completeness of the record and

to reaffirm the view that ordinarily death sentence should not be awarded

in a conviction based on circumstantial evidence.

Reform, rehabilitation and re-integration into society

31. The discussion on the reform or rehabilitation of a convict begins

with the acknowledgement in Bachan Singh that the probability that a

convict can be reformed and rehabilitated is a valid consideration for

deciding whether he should be awarded capital punishment or life

imprisonment. This Court has also accepted the view that it is for the State

to prove by evidence that the convict is not capable of being reformed and

rehabilitated and should, therefore, be awarded the death sentence.

32. This view has been accepted universally in all the decisions that

were cited before us by learned counsel for the appellant.

33. In Prakash Dhawal Khairnar (Patil) v. State of Maharashtra

24

the

probability of reform and rehabilitation of the convict was considered by

this Court. It was held that the convict did not have any criminal tendency

and was gainfully employed. Though the crime was heinous, it would be

difficult to hold that it was the rarest of rare cases. It could not be held that

24

(2002) 2 SCC 35

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 19 of 43

the appellant would be a menace to society and there was no reason to

believe that he could not be reformed or rehabilitated. Accordingly, the

death penalty was converted into imprisonment for 20 years.

34. In Lehna v. State of Haryana

25

it was held that the special reasons

for awarding the death sentence must be such that compel the court to

conclude that it is not possible to reform and rehabilitate the offender. It

was said in paragraph 14 of the Report as follows:

14. ……..Death sentence is ordinarily ruled out and can only be

imposed for “special reasons”, as provided in Section 354(3).

There is another provision in the Code which also uses the

significant expression “special reason”. It is Section 361……...

Section 361 which is a new provision in the Code makes it

mandatory for the court to record “special reasons” for not

applying the provisions of Section 360. Section 361 thus casts a

duty upon the court to apply the provisions of Section 360

wherever it is possible to do so and to state “special reasons” if it

does not do so. In the context of Section 360, the “special

reasons” contemplated by Section 361 must be such as to

compel the court to hold that it is impossible to reform and

rehabilitate the offender after examining the matter with due

regard to the age, character and antecedents of the offender

and the circumstances in which the offence was committed.

This is some indication by the legislature that reformation and

rehabilitation of offenders and not mere deterrence, are now

among the foremost objects of the administration of criminal

justice in our country. Section 361 and Section 354(3) have both

entered the statute-book at the same time and they are part of the

emerging picture of acceptance by the legislature of the new trends

in criminology. It would not, therefore, be wrong to assume that

the personality of the offender as revealed by his age, character,

antecedents and other circumstances and the tractability of the

offender to reform must necessarily play the most prominent role

in determining the sentence to be awarded. Special reasons must

have some relation to these factors……..” (Emphasis supplied by

us).

25

(2002) 3 SCC 76

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 20 of 43

35. In Bariyar this Court referred to the law laid down in Bachan Singh

to the effect that capital punishment should be awarded only in the rarest

of rare cases and then held in paragraph 66 of the Report that there must be

clear evidence to indicate that the convict is incapable of reform and

rehabilitation. It was held as follows:

“66. 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

will be pointless and completely devoid of 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 exception 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. This analysis can only be done with rigour when the court

focuses on the circumstances relating to the criminal, along with

other circumstances. This is not an easy conclusion to be

deciphered, but Bachan Singh sets the bar very high by

introduction of the rarest of rare doctrine.” (Emphasis supplied by

us).

36. In Ramesh a reference was made to Shivaji and Bachan Singh in

paragraph 69 of the Report and it was held while reiterating the view

expressed in Bariyar that the reformation and rehabilitation of a convict is

a mitigating circumstance for the purposes of awarding punishment and the

State should, by evidence prove that the convict was not likely to be

reformed.

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 21 of 43

37. In Sandesh v. State of Maharashtra

26

this Court once again

acknowledged the principle that it is for the prosecution to lead evidence

to show that there is no possibility that the convict cannot be reformed.

38. Similarly, in Mohinder Singh v. State of Punjab

27

it was held in

paragraph 23 of the Report as follows:

“……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.” (Emphasis

supplied by us).

39. In Birju v. State of Madhya Pradesh

28

this Court explained the

necessity of considering the probability of reform and rehabilitation of the

convict by referring to the provisions of the Probation of Offenders Act,

1958 where a convict is placed under probation in a case where there is a

possibility of reform. It was held in paragraph 20 of the Report:

“20. In the instant case, the High Court took the view that there

was no probability that the accused would not commit criminal

acts of violence and would constitute a continuing threat to the

society and there would be no probability that the accused could

be reformed or rehabilitated……. Courts used to apply reformative

theory in certain minor offences and while convicting persons, the

courts sometimes release the accused on probation in terms of

Section 360 CrPC and Sections 3 and 4 of the Probation of

Offenders Act, 1958. Sections 13 and 14 of the Act provide for

appointment of Probation Officers and the nature of duties to be

performed. Courts also, while exercising power under Section 4,

call for a report from the Probation Officer. In our view, while

26

(2013) 2 SCC 479

27

(2013) 3 SCC 294

28

(2014) 3 SCC 421

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 22 of 43

awarding sentence, in appropriate cases, while hearing the accused

under Section 235(2) CrPC, courts can also call for a report from

the Probation Officer……….. Courts can then examine whether

the accused is likely to indulge in commission of any crime or

there is any probability of the accused being reformed and

rehabilitated.” (Emphasis supplied by us).

40. In Anil v. State of Maharashtra

29

this Court implemented the reform

and rehabilitation theory. In fact, in paragraph 33 of the Report a direction

was issued that while dealing with offences like Section 302 of the IPC,

the criminal courts may call for a report to determine whether the convict

could be reformed or rehabilitated. This Court noted the duty of the

criminal courts to ascertain whether the convict can be reformed and

rehabilitated and it is the obligation of the State to furnish materials for and

against the possibility of reform and rehabilitation. It was held as follows:

33. In Bachan Singh this Court has categorically stated, “the

probability that the accused would not commit criminal acts of

violence as would constitute a continuing threat to the society”, is

a relevant circumstance, that must be given great weight in the

determination of sentence. This was further expressed in Santosh

Kumar Satishbhushan Bariyar. Many a times, while determining

the sentence, the courts take it for granted, looking into the

facts of a particular case, that the accused would be a menace

to the society and there is no possibility of reformation and

rehabilitation, while it is the duty of the court to ascertain those

factors, and the State is obliged to furnish materials for and

against the possibility of reformation and rehabilitation of the

accused. The facts, which the courts deal with, in a given case,

cannot be the foundation for reaching such a conclusion, which, as

already stated, calls for additional materials. We, therefore, direct

that the criminal courts, while dealing with the offences like

Section 302 IPC, after conviction, may, in appropriate cases, call

for a report to determine, whether the accused could be

29

(2014) 4 SCC 69

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 23 of 43

reformed or rehabilitated, which depends upon the facts and

circumstances of each case.” (Emphasis supplied by us).

41. In Mahesh Dhanaji Shinde v. State of Maharashtra

30

this Court

considered the conduct of the convicts and on the facts before it, it was

concluded that they were capable of living a changed life if they are

rehabilitated in society. In any event, the State had not contended that the

convicts were beyond reformation and could not lead a changed life if they

are rehabilitated in society.

42. In Sushil Sharma this Court acknowledged that among various

factors, one of the factors required to be taken into consideration for

awarding or not awarding capital punishment is the probability of reform

and rehabilitation of the convict. This acknowledgement was made in

paragraph 103 of the Report, in which it was said:

“103. In the nature of things, there can be no hard-and-fast rules

which the court can follow while considering whether an accused

should be awarded death sentence or not. The core of a criminal

case is its facts and, the facts differ from case to case. Therefore,

the various factors like the age of the criminal, his social status, his

background, whether he is a confirmed criminal or not, whether he

had any antecedents, whether there is any possibility of his

reformation and rehabilitation or whether it is a case where

the reformation is impossible and the accused is likely to revert

to such crimes in future and become a threat to the society are

factors which the criminal court will have to examine

independently in each case. Decision whether to impose death

penalty or not must be taken in the light of guiding principles laid

down in several authoritative pronouncements of this Court in the

facts and attendant circumstances of each case.” (Emphasis

supplied by us).

30

(2014) 4 SCC 292

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 24 of 43

43. At this stage, we must hark back to Bachan Singh and differentiate

between possibility, probability and impossibility of reform and

rehabilitation. Bachan Singh requires us to consider the probability of

reform and rehabilitation and not its possibility or its impossibility.

44. Finally, in a recent decision of this Court, in Chhannu Lal Verma

v. State of Chhattisgarh

31

the necessity of deciding whether there is any

probability of reformation and rehabilitation of the convict was

emphasised in cases where there is a possibility of imposition of the

death penalty. It was held in paragraph 15 of the Report as follows:

“15. ……….. No evidence as to the uncommon nature of the

offence or the improbability of reformation or rehabilitation of the

appellant has been adduced. Bachan Singh (supra) unambiguously

sets out that death penalty shall be awarded only in the rarest of

rare cases where life imprisonment shall be wholly inadequate or

futile owing to the nature of the crime and the circumstances

relating to the criminal. Whether the person is capable of

reformation and rehabilitation should also be taken into

consideration while imposing death penalty………” (Emphasis

supplied by us).

45. The law laid down by various decisions of this Court clearly and

unequivocally mandates that the probability (not possibility or

improbability or impossibility) that a convict can be reformed and

rehabilitated in society must be seriously and earnestly considered by the

31

Criminal Appeal Nos. 1482-1483 of 2018 [Arising out of S.L.P. (Criminal) Nos. 5898-5899 of 2014]

Decided on November 28, 2018

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 25 of 43

courts before awarding the death sentence. This is one of the mandates of

the “special reasons” requirement of Section 354(3) of the Cr.P.C. and

ought not to be taken lightly since it involves snuffing out the life of a

person. To effectuate this mandate, it is the obligation on the prosecution

to prove to the court, through evidence, that the probability is that the

convict cannot be reformed or rehabilitated. This can be achieved by

bringing on record, inter alia, material about his conduct in jail, his conduct

outside jail if he has been on bail for some time, medical evidence about

his mental make-up, contact with his family and so on. Similarly, the

convict can produce evidence on these issues as well.

46. If an inquiry of this nature is to be conducted, as is mandated by the

decisions of this Court, it is quite obvious that the period between the date

of conviction and the date of awarding sentence would be quite prolonged

to enable the parties to gather and lead evidence which could assist the

Trial Court in taking an informed decision on the sentence. But, there is

no hurry in this regard, since in any case the convict will be in custody for

a fairly long time serving out at least a life sentence.

47. Consideration of the reformation, rehabilitation and re-integration of

the convict into society cannot be over-emphasised. Until Bachan Singh,

the emphasis given by the courts was primarily on the nature of the crime,

its brutality and severity. Bachan Singh placed the sentencing process into

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 26 of 43

perspective and introduced the necessity of considering the reformation or

rehabilitation of the convict. Despite the view expressed by the

Constitution Bench, there have been several instances, some of which have

been pointed out in Bariyar and in Sangeet v. State of Haryana

32

where

there is a tendency to give primacy to the crime and consider the criminal

in a somewhat secondary manner. As observed in Sangeet “In the

sentencing process, both the crime and the criminal are equally important.”

Therefore, we should not forget that the criminal, however ruthless he

might be, is nevertheless a human being and is entitled to a life of dignity

notwithstanding his crime. Therefore, it is for the prosecution and the

courts to determine whether such a person, notwithstanding his crime, can

be reformed and rehabilitated. To obtain and analyse this information is

certainly not an easy task but must nevertheless be undertaken. The process

of rehabilitation is also not a simple one since it involves social re-

integration of the convict into society. Of course, notwithstanding any

information made available and its analysis by experts coupled with the

evidence on record, there could be instances where the social re-integration

of the convict may not be possible. If that should happen, the option of a

long duration of imprisonment is permissible.

48. In other words, directing imprisonment for a period greater than 14

32

(2013) 2 SCC 452

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 27 of 43

years (say 20 or 25 years) could unquestionably foreclose the imposition

of a sentence of death, being an alternative option to capital punishment.

DNA evidence

49. While Section 53-A of the Cr.P.C. is not mandatory, it certainly

requires a positive decision to be taken. There must be reasonable grounds

for believing that the examination of a person will afford evidence as to the

commission of an offence of rape or an attempt to commit rape. If

reasonable grounds exist, then a medical examination as postulated by

Section 53-A(2) of the Cr.P.C. must be conducted and that includes

examination of the accused and description of material taken from the

person of the accused for DNA profiling. Looked at from another point of

view, if there are reasonable grounds for believing that an examination of

the accused will not afford evidence as to the commission of an offence as

mentioned above, it is quite unlikely that a charge-sheet would even be

filed against the accused for committing an offence of rape or attempt to

rape.

50. Similarly, Section 164-A of the Cr.P.C. requires, wherever possible,

for the medical examination of a victim of rape. Of course, the consent of

the victim is necessary and the person conducting the examination must be

competent to medically examine the victim. Again, one of the

requirements of the medical examination is an examination of the victim

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 28 of 43

and description of material taken from the person of the woman for DNA

profiling.

51. There can be no doubt that there have been remarkable technological

advancements in forensic science and in scientific investigations. These

must be made fully use of and the somewhat archaic methods of

investigations must be given up. In Krishna Kumar Malik v. State of

Haryana

33

this Court referred to Section 53-A of the Cr.P.C. and observed

that after the enactment of this provision with effect from 23

rd

June, 2006

“it has become necessary for the prosecution to go in for DNA test in such

type of cases, facilitating the prosecution to prove its case against the

accused”.

52. The necessity of taking advantage of the advancement in scientific

investigation was the subject matter of discussion in State of Gujarat v.

Kishanbhai.

34

In that case, this Court lamented the failure of the

investigating agency to take advantage of scientific investigations. It was

said:

“12.7.5. There has now been a great advancement in scientific

investigation on the instant aspect of the matter. The investigating

agency ought to have sought DNA profiling of the blood samples,

which would have given a clear picture whether or not the blood

of the victim [deleted] was, in fact on the clothes of the respondent-

accused Kishanbhai. This scientific investigation would have

unquestionably determined whether or not the respondent-accused

was linked with the crime. Additionally, DNA profiling of the

33

(2011) 7 SCC

34

(2014) 5 SCC 108

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 29 of 43

blood found on the knife used in the commission of the crime

(which the respondent-accused Kishanbhai had allegedly stolen

from Dineshbhai Karsanbhai Thakore, PW 6), would have

uncontrovertibly determined, whether or not the said knife had

been used for severing the legs of the victim [deleted], to remove

her anklets.

12.7.6. In spite of so much advancement in the field of forensic

science, the investigating agency seriously erred in not

carrying out an effective investigation to genuinely determine

the culpability of the respondent-accused Kishanbhai.” (Emphasis

supplied by us).

53. More recently, in Mukesh and Anr. v. State (NCT of Delhi)

35

there

is a brief reference to Section 53-A and Section 164-A of the Cr.P.C. What

is important in this brief reference is the acknowledgment that DNA

evidence is being increasingly relied upon by courts. It was observed in

paragraphs 216 and 217 as follows:

“216. In our country also like several other developed and

developing countries, DNA evidence is being increasingly relied

upon by courts. After the amendment in the Criminal Procedure

Code by the insertion of Section 53A by Act 25 of 2005, DNA

profiling has now become a party of the statutory scheme.

Section 53A relates to the examination of a person accused of rape

by a medical practitioner.”

“217. Similarly, under Section 164A inserted by Act 25 of 2005,

for medical examination of the victim of rape, the description of

material taken from the person of the woman for DNA profiling is

must.” (Emphasis supplied by us).

54. For the prosecution to decline to produce DNA evidence would be a

little unfortunate particularly when the facility of DNA profiling is

35

(2017) 6 SCC 1

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 30 of 43

available in the country. The prosecution would be well advised to take

advantage of this, particularly in view of the provisions of Section 53-A

and Section 164-A of the Cr.P.C. We are not going to the extent of

suggesting that if there is no DNA profiling, the prosecution case cannot

be proved but we are certainly of the view that where DNA profiling has

not been done or it is held back from the Trial Court, an adverse

consequence would follow for the prosecution.

55. In Mukesh a separate opinion was delivered by Justice Banumathi

and in paragraph 455 of the Report it was held that DNA profiling is an

extremely accurate way of comparing specimens and such testing can make

a virtually positive identification. It was stated:

“455. DNA profiling is an extremely accurate way to compare

a suspect’s DNA with crime scene specimens, victim’s DNA on

the blood-stained clothes of the accused or other articles

recovered, DNA testing can make a virtually positive

identification when the two samples match. A DNA finger print

is identical for every part of the body, whether it is the blood,

saliva, brain, kidney or foot on any part of the body. It cannot be

changed; it will be identical no matter what is done to a body. Even

relatively minute quantities of blood, saliva or semen at a crime

scene or on clothes can yield sufficient material for analysis. The

Experts opine that the identification is almost hundred per cent

precise. Using this i.e. chemical structure of genetic information

by generating DNA profile of the individual, identification of an

individual is done like in the traditional method of identifying

finger prints of offenders.” (Emphasis supplied by us).

56. In the context of importance of scientific and technological advances

having been made, we may recall the observation of this Court in Selvi v.

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 31 of 43

State of Karnataka

36

in paragraph 220 of the Report that “The matching of

DNA samples is emerging as a vital tool for linking suspects to specific

criminal acts.”

57. Insofar as the present petitions before us are concerned, there is no

dispute that samples were taken from the body of the accused and sent for

DNA profiling. However, the result was not produced before the Trial

Court. There is absolutely no explanation for this and in the absence of

any justification for not producing the DNA evidence, we are of the view

that it would be dangerous, on the facts of this case, to uphold the sentence

of death on the appellant.

Prior history of the convict or criminal antecedents

58. The history of the convict, including recidivism cannot, by itself, be

a ground for awarding the death sentence. This needs some clarity. There

could be a situation where a convict has previously committed an offence

and has been convicted and sentenced for that offence. Thereafter, the

convict commits a second offence for which he is convicted and sentence

is required to be awarded. This does not pose any legal challenge or

difficulty. But, there could also be a situation where a convict has

committed an offence and is under trial for that offence. During the

pendency of the trial he commits a second offence for which he is convicted

36

(2010) 7 SCC 263

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 32 of 43

and in which sentence is required to be awarded.

59. Sections 54 of the Indian Evidence Act, 1872 prohibits the use of

previous bad character evidence except when the convict himself chooses

to lead evidence of his good character. The implication of this clearly is

that the past adverse conduct of the convict ought not to be taken into

consideration for the purposes of determining the quantum of sentence,

except in specified circumstances.

60. There are exceptions to this general rule. For example, Section 376-

E of the IPC provides as follows:

“376E. Punishment for repeat offenders. - Whoever has been

previously convicted of an offence punishable under Section 376

or Section 376-A or Section 376AB, or Section 376D or Section

376DA or Section 376DB and is subsequently convicted of an

offence punishable under any of the said sections shall be punished

with imprisonment for life which shall mean imprisonment for the

remainder of that person's natural life, or with death.”

61. Similarly, Section 16(2) of the Prevention of Food Adulteration Act,

1954 provides as follows:

“16. Penalties. –

(1) xxx xxx xxx

(2) If any person convicted of an offence under this Act commits

a like offence afterwards it shall be lawful for the court before

which the second or subsequent conviction takes place to cause the

offender's name and place of residence, the offence and the penalty

imposed to be published at the offender's expense in such

newspapers or in such other manner as the court may direct. The

expenses of such publication shall be deemed to be part of the cost

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 33 of 43

attending the conviction and shall be recoverable in the same

manner as a fine.”

62. Finally, it is worthwhile to refer to Section 75 of the IPC which

provides for enhanced punishment for certain offences under Chapter XII

or Chapter XVII of the IPC after previous convictions. This Section reads

as follows:

“75. Enhanced punishment for certain offences under Chapter

XII or Chapter XVII after previous conviction.–Whoever,

having been convicted, -

(a) by a Court in India, of an offence punishable under Chapter XII

or Chapter XVII of this Code with imprisonment of either

description for a term of three years or upwards,

shall be guilty of any offence punishable under either of those

Chapters with like imprisonment for the like term, shall be subject

for every such subsequent offence to imprisonment for life, or to

imprisonment of either description for a term which may extend to

ten years.”

63. The scope of Section 75 of the IPC was discussed in the 42

nd

Report

of the Law Commission of India in the following words:

“[This] is an attempt to deal with the problem of habitual offenders

and recidivism. Other penal systems also have tried to grapple

with this complex problem, but nowhere have the attempts met

with marked success, perhaps because the causes of crime are

themselves complex. Because the previous sentence has failed

both in its object of reforming the offender and in its object of

deterring him from crime, the law, as a measure of last resort,

concentrates on protecting society from the offender by sending

him to jail for a longer term than before.”

64. It is worthwhile to note that the three provisions of law quoted above

deal with instances where there is a prior conviction and do not deal with

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 34 of 43

the pending trial of a case involving an offence. Therefore, while it is

possible to grant an enhanced sentence, as provided by statute, for a

recurrence of the same offence after conviction, the possibility of granting

an enhanced sentence where the statute is silent does not arise.

Consequently, it must be held that in terms of Section 54 of the Indian

Evidence Act the antecedents of a convict are not relevant for the purposes

of awarding a sentence, unless the convict gives evidence of his good

character.

65. The importance of a conviction as against a pending trial was

emphasised in Mohd. Farooq Abdul Gafur v. State of Maharashtra

37

wherein the presumption of innocence was adverted to as a human right

and it was held in paragraph 178 of the Report:

“178. In our opinion the trial court had wrongly rejected the fact

that even though the accused had a criminal history, but there had

been no criminal conviction against the said three accused. It had

rejected the said argument on the ground that a conviction might

not be possible in each and every criminal trial. In our opinion

unless a person is proven guilty, he should be presumed

innocent. Further, nothing has been brought on behalf of the State

even after all these years, that the criminal trials that had been

pending against the accused had resulted in their conviction.

Unless the same is shown by the documents on records we would

presume to the contrary. Presumption of innocence is a human

right. The learned trial Judge should also have presumed the same

against all the three accused. In our opinion the alleged criminal

history of the accused had a major bearing on the imposition of the

death sentence by the trial court on the three accused. That is why

in our opinion he had erred in this respect.” (Emphasis supplied

by us).

37

(2010) 14 SCC 641

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 35 of 43

66. However, in Gurmukh Singh v. State of Haryana

38

while this Court

did not consider or discuss the prior history of the convict as a factor for

sentencing, it was noted in paragraph 23 of the Report that one of the

relevant factors for consideration before awarding an appropriate sentence

to the convict would be the number of other criminal cases pending against

him. In our opinion, this does not lay down the correct law since it

overlooks the presumption of innocence. It was held in paragraph 23 of the

Report as follows:

“23. These are some factors which are required to be taken into

consideration before awarding appropriate sentence to the accused.

These factors are only illustrative in character and not exhaustive.

Each case has to be seen from its special perspective. The relevant

factors are as under:

(a) to (j) xxx xxx xxx

(k) Number of other criminal cases pending against the accused;

(l) to (m) xxx xxx

These are some of the factors which can be taken into

consideration while granting an appropriate sentence to the

accused.” (Emphasis supplied by us).

67. In Bantu v. State of M.P.

39

this Court noted that there was nothing

on record to indicate that the appellant had any criminal antecedents nor

could it be said that he would be a grave danger to the society at large

despite the fact that the crime committed by him was heinous. It was held

38

(2009) 15 SCC 635

39

(2001) 9 SCC 615

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 36 of 43

in paragraph 8 of the Report as follows:

“8. However, the learned counsel for the appellant submitted that

in any set of circumstances, this is not the rarest of the rare case

where the accused is to be sentenced to death. He submitted that

age of the accused on the relevant day was less than 22 years. It is

his submission that even though the act is heinous, considering the

fact that no injuries were found on the deceased, it is probable that

death might have occurred because of gagging her mouth and

nosetrix [nostril] by the accused at the time of incident so that she

may not raise a hue and cry. The death, according to him, was

accidental and an unintentional one. In the present case, there is

nothing on record to indicate that the appellant was having any

criminal record nor can it be said that he will be a grave danger

to the society at large. It is true that his act is heinous and

requires to be condemned but at the same time it cannot be

said that it is the rarest of the rare case where the accused

requires to be eliminated from the society. Hence, there is no

justifiable reason to impose the death sentence.” (Emphasis

supplied by us).

68. In Amit v. State of Maharashtra

40

this Court adverted to the prior

history of the appellant and noted that there is no record of any previous

heinous crime and also there is no evidence that he would be a danger to

society if the death penalty is not awarded to him. It was held in paragraph

10 of the Report:

“10. The next question is of the sentence. Considering that the

appellant is a young man, at the time of the incident his age was

about 20 years; he was a student; there is no record of any

previous heinous crime and also there is no evidence that he

will be a danger to the society, if the death penalty is not awarded.

Though the offence committed by the appellant deserves severe

condemnation and is a most heinous crime, but on cumulative facts

and circumstances of the case, we do not think that the case falls

in the category of rarest of the rare cases…….” (Emphasis supplied

by us).

40

(2003) 8 SCC 93

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 37 of 43

69. In the case of Rahul v. State of Maharashtra

41

this Court noted that

there was no adverse report about the conduct of the appellant therein either

by the jail authorities or by the probationary officer and that he had no

previous criminal record or at least nothing was brought to the notice of

the Court. It was observed in paragraph 4 of the Report as follows:

“4. We have considered all the relevant aspects of the case. It is

true that the appellant committed a serious crime in a very ghastly

manner but the fact that he was aged 24 years at the time of the

crime, has to be taken note of. Even though, the appellant had been

in custody since 27-11-1999 we are not furnished with any report

regarding the appellant either by any probationary officer or by the

jail authorities. The appellant had no previous criminal record,

and nothing was brought to the notice of the Court. It cannot

be said that he would be a menace to the society in future.

Considering the age of the appellant and other circumstances, we

do not think that the penalty of death be imposed on him.”

(Emphasis supplied by us).

70. Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat

42

the

absence of any involvement in any previous criminal case was considered

to be a factor to be taken into consideration for the purposes of awarding

the sentence to the appellant therein. It was held in paragraph 13 of the

Report as follows:

“13. The next question that arises for consideration is whether this

is a “rarest of rare case”; we do not think that this is a “rarest of

rare case” in which death penalty should be imposed on the

appellant. The appellant was aged 36 years at the time of the

41

(2005) 10 SCC 322

42

(2005) 3 SCC 127

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 38 of 43

occurrence and there is no evidence that the appellant had been

involved in any other criminal case previously and the

appellant was a migrant labourer from U.P. and was living in

impecunious circumstances and it cannot be said that he would

be a menace to society in future and no materials are placed

before us to draw such a conclusion. We do not think that the

death penalty was warranted in this case. We confirm conviction

of the appellant on all the counts, but the sentence of death penalty

imposed on him for the offence under Section 302 IPC is

commuted to life imprisonment.” (Emphasis supplied by us).

71. The importance and significance of a conviction as against a pending

trial was the subject matter of discussion in the Supreme Court of Canada.

In Her Majesty The Queen v. Norman Skolnick

43

Coke’s Institutes was

partially “modified” to the effect that a person cannot be sentenced for the

third offence before he has been convicted of the second offence; nor can

that person be sentenced for the second offence before he has been

convicted for the first offence. The second offence must be committed after

the first conviction and the third offence must be committed after the

second conviction. The principle appears to be that the accused does not

face the jeopardy of an increased penalty unless he has previously been

convicted and sentenced.

72. Similarly, the Supreme Court of the Northern Territory of Australia

in Scott Nathan Schluter v. Robin Laurence Trenerry

44

took the view that

escalating the period of actual imprisonment could be justified if there is a

43

[1982] 2 SCR 47

44

(1997) 6 NTLR 194

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 39 of 43

second finding of guilt. If that second finding of guilt is missing then there

“would be no opportunity for the multiple offender, not previously

charged, to become aware of the certainty of the severity of punishment for

the proscribed criminal behaviour.”

73. It is therefore quite clear from the various decisions placed before us

that the mere pendency of one or more criminal cases against a convict

cannot be a factor for consideration while awarding a sentence. Not only

is it statutorily impermissible (except in some cases) but even otherwise it

violates the fundamental presumption of innocence – a human right - that

everyone is entitled to.

74. Insofar as the present case is concerned, it has come on record that

there are two cases pending against the appellant for similar offences. Both

these were pending trial. Notwithstanding this, the Trial Judge took this

into account as a circumstance against the appellant. It would have been,

in our opinion, far more appropriate for the Sessions Judge to have waited,

if he thought it necessary to take the pendency of these cases into

consideration, for the trials to be concluded. For ought we know, the two

cases might have been foisted upon the appellant and he might have

otherwise been proved not guilty.

75. We may generally mention, in conclusion, that there is really no

reason for the Trial Judge to be in haste in awarding a sentence in a case

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 40 of 43

where he might be considering death penalty on the ground that any other

alternative option is unquestionably foreclosed. The convict would in any

case remain in custody for a fairly long time since the minimum

punishment awarded would be imprisonment for life. Therefore, a Trial

Judge can take his time and sentence the convict after giving adequate

opportunity for the prosecution as well as for the defence to produce

material as postulated in Bachan Singh so that the possibility of awarding

life sentence is open to the Trial Judge as against the death sentence. It

must be appreciated that a sentence of death should be awarded only in the

rarest of rare cases, only if an alternative option is unquestionably

foreclosed and only after full consideration of all factors keeping in mind

that a sentence of death is irrevocable and irretrievable upon execution. It

should always be remembered that while the crime is important, the

criminal is equally important insofar as the sentencing process is

concerned. In other words, courts must “make assurance double sure”.

45

76. We may note here, by way of a post script that during the course of

submissions, it was stated by learned counsel for the appellant that in the

meanwhile the appellant had been convicted in one of the pending cases,

that is, State of Maharashtra v. Raju @ Rajendra judgement Wasnik (S.T.

No. 162 of 2007). This case was decided by the Sessions Judge, Amravati,

45

Shakespeare's Macbeth, Act IV, Scene i

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 41 of 43

Maharashtra on 18

th

April, 2016. The Trial Judge imposed a sentence of

imprisonment for life on the appellant upon his conviction, while taking

note that in the present case, the appellant had been awarded the death

sentence.

77. A perusal of the website of the eCourts Project of the eCommittee

of the Supreme Court revealed that in fact there were a total of four cases

against the appellant, including the one that we are dealing with. In

paragraph 38 of the decision rendered by the Sessions Judge in S.T. No.

162 of 2007 it was recorded as follows:

“[38] The victim of this crime was aged about 9 to 10 years old

and prosecution proved that the accused committed rape on her. It

appears from the facts and circumstances and record that in Crime

No.23/2007 of police station Kholapurigate, Amravati

(S.T.No.183/2007) the accused was convicted and sentenced to

death for the offence punishable under sections 302, 376(2)(f) and

377 of Indian Penal Code. He is also convicted in Crime

No.31/2007 of police station Daryapur (S.T.No.112/2007) and he

is sentenced to suffer imprisonment for life for the offence

punishable under section 376(2)(f) of Indian Penal Code. He is also

convicted in Crime No.21/2006 of police station Chikhaldara,

District Amravati (S.T.No.66/2007) and he is sentenced to suffer

imprisonment for life for the offence punishable under sections

363, 366, 376(2)(f), 302 and 201 of Indian Penal Code. The death

sentence in S.T.No.183/2007 is confirmed up to the Hon'ble

Supreme Court of India and it appears that the Mercy Petition filed

by the accused also came to be rejected by the Hon'ble President

of India. The accused committed the offence of same nature i.e.

rape on minor and innocent girl. It is his 4th offence of same nature

in which the offence under sections 363, 366 and 376(2)(f) of

Indian Penal Code is proved against the accused. It appears that

the accused is in habit to commit rape on minor girl. Taking in to

consideration the gravity of offence and the facts and

circumstances, I am of the opinion that the accused is not deserved

for leniency and according to me, the following punishment would

meet the ends of justice…….”

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 42 of 43

We have not been informed whether the conviction orders passed against

the appellant have been set aside or not. We are therefore proceeding on

the basis that the appellant has been awarded a sentence of death in the

present case and a sentence of imprisonment for life in the three other cases

decided against him, subject to any order passed by the appellate court.

78. We must however express our shock and anguish that the appellant

had the opportunity to commit the offences alleged against him on more

than one occasion. This could have been possible only if the appellant had

been on bail and our shock and anguish is that in the background of the

facts before us, the appellant was actually granted bail.

Conclusion

79. Insofar as the present petition is concerned, we are of opinion that

for the purposes of sentencing, the Sessions Judge, the High Court as well

as this Court did not take into consideration the probability of reformation,

rehabilitation and social re-integration of the appellant into society. Indeed,

no material or evidence was placed before the courts to arrive at any

conclusion in this regard one way or the other and for whatever it is worth

on the facts of this case. The prosecution was remiss in not producing the

available DNA evidence and the failure to produce material evidence must

lead to an adverse presumption against the prosecution and in favour of the

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011 Page 43 of 43

appellant for the purposes of sentencing. The Trial Court was also in error

in taking into consideration, for the purposes of sentencing, the pendency

of two similar cases against the appellant which it could not, in law,

consider. However, we also cannot overlook subsequent developments

with regard to the two (actually three) similar cases against the appellant.

80. For all these reasons, we are of opinion that it would be more

appropriate looking to the crimes committed by the appellant and the

material on record including his overall personality and subsequent events,

to commute the sentence of death awarded to the appellant but direct that

he should not be released from custody for the rest of his normal life. We

order accordingly.

81. The petitions stand disposed of accordingly.

………………………J.

(Madan B. Lokur)

………………………J.

(S. Abdul Nazeer)

New Delhi; ...………………… …..J.

December 12, 2018 (Deepak Gupta)