REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1478 OF 2005

Santosh Kumar Satishbhushan Bariyar ….. Appellant

Versus

State of Maharashtra ….. Respondent

WITH

CRIMINAL APPEAL NO. 452 OF 2006

State of Maharashtra …. Appellant

Versus

Sanjeevkumar Mahendraprasad Roy and another …. Respondents

J U D G M E N T

S.B. SINHA, J.

INTRODUCTION

These two appeals arise out of a common judgment of conviction and

sentence dated 12

th

August, 2005 passed by the High Court of Judicature at

Bombay in Confirmation Case No.2 of 2004 and three connected appeals;

one filed by the State and two by the accused, whereby and whereunder it

1

confirmed and accepted the reference made to it in terms of Section 366 of

the Code of Criminal Procedure, 1973 in the case of Santoshkumar

Satishbhushan Bariyar (appellant in Criminal Case No.1478 of 2005), and

upheld the conviction and sentence of life imprisonment in the case of the

other accused (respondents in Criminal Appeal No.452 of 2006).

Whereas Criminal Appeal No.1478 of 2005 has been preferred by

Santoshkumar Satishbhushan Bariyar (A1) (hereinafter referred to as “the

appellant”), the State has filed Criminal Appeal No.452 of 2006 praying for

enhancement of sentence for Sanjeevkumar Mahendraprasad Roy (A2) and

Sanotshkumar Shrijailal Roy (A3).

Leave in these matters was granted by this Court by orders dated 28

th

October, 2005 and 17

th

April, 2006 respectively.

BACKGROUND FACTS

The facts in brief are that the accused were said to have hatched a

conspiracy to abduct either one Abhijeet Kothari or one Kartikraj (the

deceased) and to demand a ransom of Rs. 10 lacs from the victim’s family.

Kartikraj was the one who was eventually kidnapped. He was working as a

junior clerk in Central Railways at Pune. Ramraj, his father (PW-49) was, at

the relevant time, working as Manager in NABARD, Hyderabad. Santosh

2

Ramraj (PW-50), the younger brother of the deceased was staying with his

father.

Santosh Ramraj received a phone call on 8

th

August, 2001 at his

residential telephone number disclosed by the caller, that his brother

Kartikraj was in his custody. Ransom for a sum of Rs. 10 lacs was allegedly

demanded. He was threatened that if the said amount was not paid within 24

hours then Kartikraj would be killed. The family of the deceased is said to

have received some more threatening calls thereafter. Ramraj (PW-49), the

father of the deceased also talked to the caller and asked him to give them

time till the next day morning so that he could make arrangements for the

money.

Ramraj (PW-49) thereafter talked to his friend Dattatraya Bhandange

(PW-2) who, at the relevant time, was working as Manger in NABARD,

Pune. Bhandange (PW-2) did his best to trace out Kartikraj but failed in his

attempts.

A draft of the First Information Report was faxed by Ramraj to

Bhandange’s (PW-2)’s Pune office, requesting him to lodge the same at the

concerned Police Station. A photograph of Kartikraj was also sent along.

3

Pursuant thereto, a First Information Report was lodged for offences

punishable under Sections 363 and 387 of the Indian Penal Code. The

investigation was handed over to the Crime Branch. Santoshraj (PW-2)

informed the Investigating Officer, API Lotlikar on telephone that he had

again received a phone call from the kidnappers, asking him to come to

Bombay with Rs.10 lacs and a mobile phone. To this API Lotlikar asked

him to inform the caller that instead of going himself, he would be sending a

friend of his to Bombay with the money. He told him to tell to the caller that

the friend’s name was Sham Naidu and that his mobile number was

9822******. Santoshraj acted accordingly. Kidnappers thereafter started

calling API Lotlikar on his mobile phone thinking him to be Sham Naidu.

Thus, keeping the kidnappers engaged in one conversation or the other, a

trap was laid for them at Juhu on 12

th

August, 2001. Pursuant thereto Kumar

Gaurav (PW-1), the approver and Accused Nos.2 and 3, Sanjeevkumar

Mahendraprasad Roy and Sanothskumar Shrijailal Roy were arrested.

Accused No.1, Santosh Kumar Satishbhushan Bariyar, was arrested at

Andheri Railway Station. Whereabouts of Kartikraj was, however, not

disclosed. The accused were thereafter produced before the Police Inspector,

Dilip Bhaskar Shinde (PW-53) on 13

th

August,2001 in his office at Pune and

were subsequently arrested.

4

One of the accused Kumar Gaurav, who has since been granted

pardon, addressed a letter to the Commissioner of Police, Pune City on or

about 29

th

October, 2001 stating that Kartikraj had been murdered by the

accused on 8

th

August, 2001. He expressed his repentance. He also

expressed his desire to make a confession. He was produced before

J.M.F.C., Pune at 2.00 p.m. on 31

st

October, 2001. He was produced again

on 1

st

November, 2001 when he made a statement under Section 164 of the

Code of Criminal Procedure, which was recorded.

Upon completion of investigation, a chargesheet was filed whereupon

cognizance of the offence was taken. The case was ultimately committed to

the Court of Sessions by the learned Magistrate by an order dated 3

rd

January, 2002.

Before the learned Sessions Judge, Police Inspector Dilip Bhaskar

Shinde (PW-53) made an application purported to be under Section 307 of

the Code of Criminal Procedure on or about 21

st

March, 2002 praying for

grant of pardon to Kumar Gaurav (PW-1). The learned Sessions Judge

passed an order on 3

rd

April, 2002 granting pardon to him.

5

PROSECUTION CASE

As per the statement of the Kumar Gaurav (PW-1) on which the

prosecution principally relies upon, he himself, Santosh Kumar Roy (A3)

and Sanjeeb Kumar Roy (A2) were in search of better career prospects and

all three of them decided to try their luck in the city of Bombay. Since they

had no place to stay, Sanjeeb Kumar Roy (A2) contacted the appellant who

was, at the relevant time, living in Pune. He was able to arrange a temporary

accommodation for all of them at Kudale Patil Aangan Society in Pune.

As per Kumar Gaurav (PW-1), they hatched a plan to earn around 10

to 15 lacs by kidnapping two Santosh Kumar Bariyar’s (A1’s) friends by

demanding ransom from their families. Appellant is said to be the master

mind behind the entire plan; it was he who had floated the idea of

kidnapping. According to him, he had two friends of his in mind, namely

Abhijeet Kothari, whose father was a doctor, and Kartikraj, (the deceased)

whose father was the Manager in NABARD. Both the families, as per the

appellant, being rich, it was expected that they would be able to get a hefty

sum of money as ransom upon kidnapping either of them. As per his plan if

any difficulties arose they would kill the victim. He told them that they

would cut the body into pieces and throw them at some place after putting

6

them in different bags. He asked all three, whether they were ready for such

a plan. All of them consented.

Once all of them agreed, Santosh Kumar Bariyar (A1) asked Kumar

Gaurav (PW-1) to prepare a list of articles they would require for putting this

plan of theirs into action. On the list were Hacksaw Blades and a sickle in

case they had to cut the body. Also on it were ropes for tying up the victim;

Polythene bags for putting in pieces of the dead body; rexin bags for putting

in the polythene bags containing the pieces of the dead body; Sim cards for

using mobile phones to contact the family of the victim and lastly Dettol to

be used as a deodorant.

The day thereafter Santosh Kumar Bariyar (A1) also showed them the

place they would be able to dispose of the body in case any need arose

therefor. On the same day, in the evening, all the accused shifted to

Amarpali Society which was provided to them by an agent of the appellant.

It was at the said place that they decided to put their plan into action. They

spent the rest of the day purchasing the items on the list they had prepared

the night before, requisite amount wherefor was provided by the appellant.

7

Thereafter on 6

th

August, the appellant tried to contact both Abhijeet

Kothari and Kartikraj. He could not get in touch with Abhijeet Kothari, but

he was able to procure the contact number of the deceased. He assured all

three of them that by the next day he would be able to bring Kartikraj to the

flat. When asked by others, how he could be so sure, he explained that he

had promised him a party in connection with his marriage and, according to

him, Kartikraj would never refuse, if he is invited to a party.

Next day, i.e., on the 7

th

August, Santosh Kumar Bariyar (A1)

contacted Kartikraj (the deceased) and convinced him to come to his place.

In the night he brought Kartikraj to his Apartment. Kartikraj, believing that

he had been invited to celebrate his friends’ marriage watched movies with

them till almost midnight. Around midnight the appellant gave a purported

signal to Sanjeeb Kumar Roy (A2) to execute the plan. Appellant then went

behind the deceased and placed a sickle on his neck. There after both the

hands of the deceased were tied with a rope and his mouth with a napkin.

The deceased was then dragged to the toilet where he was assaulted with

kicks and blows. All this went on for two hours. Then the accused called up

the family of the deceased and asked them to pay a ransom of Rs. 10 lacs if

they wanted to see Kartikraj alive again.

8

However the life of the deceased could have been saved had the

landlord of the apartment who had come to check up on his flat the next

morning suspected anything foul in the house, but unfortunately he did not.

Apprehending that they might be caught, Santosh Kumar Bariyar (A1) and

Kumar Gaurav (PW1) decided that it would no longer be safe to keep the

deceased alive and that it was in their best interest to kill him. To end his life

the appellant and Sanjeeb Kumar Roy (A2) tied a rope around his neck and

pulled at it from both ends. The deceased tried to struggle but his movement

stopped after sometime. His dead body was then dragged to the toilet.

Santosh Kumar Bariyar (A1) then separated the head of the deceased with

the hacksaw blade and a sickle. He then kept the head in a polythene bag.

Thereafter he separated both the hands of the deceased. The hands too were

kept in polythene bags. He then asked Sanjeeb Kumar Roy (A2) to cut the

legs of the deceased, which he did. Kumar Gaurav (PW-1) and Sanjeeb

Kumar Roy (A2) packed the legs into separate bags.

Approximately two hours were spent in cutting the body of the

deceased. They then disposed of these bags containing the body parts of the

deceased at different places. They also disposed of the belongings of the

deceased in a similar fashion. They thereafter also cleared off all the items

from the flat.

9

The next day they again called up the family of the deceased

demanding ransom from them even though they had already killed their

victim. They were assured by the family that they would get the ransom

money but needed some more time to arrange it. It was this greed of theirs

which ultimately lead to their arrest.

JUDGMENT OF THE TRIAL JUDGE

The prosecution examined 54 witnesses while two witnesses were

examined by the defence. Relying primarily on the said evidence, the

judgment of conviction and sentence was recorded by the learned Sessions

Judge. The learned Sessions Judge convicted accused No.1 of the offences

punishable under Section 302 read with Section 120-B as also under

Sections 364-A read with 120-B of the Indian Penal Code. He was sentenced

to death. Accused Nos. 2 and 3 were convicted of the offences punishable

under Section 302 read with Section 120-B as also under Sections 364-A

read with 120-B of the Indian Penal Code. They were sentenced to suffer

rigorous imprisonment for life. Besides, all the accused were found guilty of

the offences under Sections 387 read with 120-B ; 201 read with 120-B of

the Indian Penal Code and Sections 4 and 25 of the Indian Arms Act and

were sentenced for various terms accordingly.

10

CONTENTIONS RAISED

Mr. Sushil Kumar, learned senior counsel appearing on behalf of the

appellant in Criminal Appeal No.1478 of 2005, would submit :-

(i)The courts below committed a serious illegality in recording the

judgment and conviction primarily on the basis of the evidence of

PW-1, Kumar Gaurav, despite the fact that he had retracted his

confession, as would appear from his letter dated 6

th

November, 2001

(Article B).

(ii)The evidence of learned Magistrate (PW-54) could not have been

relied upon by the learned Sessions Judge inasmuch there were

enough materials to show that when the charge sheet was filed on 9

th

November, 2001 none of the accused was produced, during the period

9.11.2001 and 1.1.2002. Since PW-1 was not produced in Court there

was no occasion for him to inform the Magistrate that he was not the

author of Article B.

(iii)The learned Sessions Judge could not have exercised its jurisdiction

under Section 307 of the Code of Criminal Procedure having regard to

the fact that the requirements as contained in sub-section (4) of

Section 306 of the Code of Criminal Procedure had not been complied

with.

11

(iv)As grant of pardon to Kumar Gaurav (PW-1) was illegal, his evidence

could not have been taken into consideration as a witness examined

on behalf of the prosecution and the same should have been

considered to be a statement made by the accused against his other co-

accused only as envisaged under Section 30 of the Indian Evidence

Act.

(v)As the prosecution case hinges on the statement of Kumar Gaurav

(PW-1) and the circumstantial evidence, whereupon the courts below

have relied upon being not consistent with guilt of the accused; the

appellant is entitled to acquittal.

(vi)In any view of the matter the quality of the evidence adduced by the

prosecution is such for which the death penalty could not be imposed,

particularly in view of the fact that the trial court had erroneously held

that there was no mitigating circumstances therefor.

The learned counsel for the State, however, supported the impugned

judgment as regards the death penalty on the appellant. In support of

Criminal Appeal No. 452 of 2006 relating to Sanjeevkumar Mahendraprasad

Roy (A2) and Sanothskumar Shrijailal Roy (A3) it was argued that the

sentence awarded to them was shockingly inadequate and that the same be

12

enhanced to penalty of death, since the crime they had committed falls

within the purview of ‘rarest of the rare cases’.

It was urged that Sanjeeb Kumar Roy (A2) and Santosh Kumar Roy

(A3), being equal party to the crime, having had played similar role in the

commission thereof, they also deserved award of death penalty. It was

furthermore argued that there was not a single mitigating circumstance in

favour of the accused to award to them the lesser penalty of life

imprisonment.

QUESTIONS INVOLVED

Two principal questions, therefore, which arise for our consideration

are :-

(A)Whether the learned Sessions Judge acted illegally in granting

pardon to Kumar Gaurav (PW-1) ; and

(B)Whether the case in hand can be said to be a ‘rarest of rare cases’

so as to enable the courts below to award the death penalty.

LEGALITY OF THE ORDER GRANTING PARDON

We shall first deal with the order of the learned Sessions Judge

granting pardon to Kumar Gaurav (PW 1).

13

Sections 306 and 307 of the Code of Criminal Procedure, 1973, which

are relevant for our purpose, read as under:

“306. Tender of pardon to accomplice :-(1) With

a view to obtaining the evidence of any person

supposed to have been directly or indirectly

concerned in or privy to an offence to which this

Section applies, the Chief Judicial Magistrate or a

Metropolitan Magistrate at any stage of the

investigation or inquiry into, or the trial of, the

offence, and the Magistrate of the first class

inquiring into, or trying the offence, at any stage of

the inquiry or trial, may tender pardon to such

person on condition of his making a full and true

disclosure of the whole of the circumstances

within his knowledge relative to the offence and to

every other person concerned, whether as principal

or abettor, in the commission thereof.

(2) This Section applies to--

(a) any offence triable exclusively by the

Court of Session or by the Court of a Special

Judge appointed under the Criminal Law

Amendment Act, 1952 (46 of 1952);

(b) any offence punishable with

imprisonment which may extend to seven

years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under

sub- section (1) shall record-

(a) his reasons for so doing

(b) whether the tender was or was not

accepted by the person to whom it was

made;

and shall, on application made by the

accused, furnish him with a copy of such

record free of cost.

14

(4) Every person accepting a tender of pardon

made under sub-section (1)-

(a) shall be examined as a witness in the

Court of the Magistrate taking cognizance of

the offence and in the subsequent trial, if

any;

(b) shall, unless he is already on bail, be

detained in custody until the termination of

the trial.

(5) Where a person has accepted a tender of

pardon made under sub-section (1) and has been

examined under sub-section (4), the Magistrate

taking cognizance of the offence shall, without

making any further inquiry in the case-

(a) commit it for trial-

(i) to the Court of Session if the

offence is triable exclusively by that

Court or if the Magistrate taking

cognizance is the Chief Judicial

Magistrate ;

(ii) to a Court of Special Judge

appointed under the Criminal Law

Amendment Act, 1952, (46 of 1952),

if the offence is triable exclusively by

that Court ;

(b) in any other case, make over the case to

the Chief Judicial Magistrate who shall try

the case himself.

307. Power to direct tender of pardon :- At any

time after commitment of a case but before

judgement is passed, the Court to which the

commitment is made may, with a view to

obtaining at the trial the evidence of any person

supposed to have been directly or indirectly

concerned in, or privy to, any such offence, tender

a pardon on the same condition to such person.”

15

Section 306, thus, empowers the Chief Judicial Magistrate or a

Metropolitan Magistrate or a Magistrate of the First class inquiring into or

trying the offence to tender a pardon to such person on condition of his

making a full and true disclosure of the whole of the circumstances within

his knowledge relating to the offence and to every other person concerned,

whether as principal or abettor, in the commission thereof. The said

provision indisputably applies to the cases triable exclusively by a Court of

Sessions.

The Magistrate tendering pardon is required to record his reasons for

so doing and to further record whether the tender was or was not accepted by

the person to whom it was made. Sub-section (4) of Section 306 of the Code

of Criminal Procedure mandates that such a person accepting tender of

pardon must be examined as a witness in the trial. Sub-section (5) of

Section 306 of the Code of Criminal Procedure provides that where a person

has accepted tender of pardon made under sub-section (1) and has been

examined under sub-section (4), the Magistrate taking cognizance of the

offence shall commit it for trial, without making any further inquiry in the

case.

16

Whether the terms “on the same condition” occurring in Section 307

of the Code of Criminal Procedure refer to sub-section (4) of Section 306

thereof and as in the instant case apart from the purported statement made by

Kumar Gaurav (PW-1) under Section 164 of the Code of Criminal

Procedure, which had been retracted, as no other statement had been taken

from him by the learned Magistrate, the order granting pardon in his favour

was illegal, is the question.

In our opinion, the submission of Mr. Sushil Kumar does not merit

acceptance.

Sub-section (4) of Section 306 is procedural in nature. It is necessary

to be followed only by a Magistrate as he would not have any jurisdiction to

try the case himself. The learned Sessions Judge before whom the case is

committed for trial must be informed as to on what basis pardon had been

tendered.

Section 307 does not contain any such condition. The power of the

learned Sessions Judge is independent of the provisions contained in Section

306 thereof. The condition mentioned in Section 307 refers to the condition

laid down in sub-section (1) of Section 306, namely that the person in whose

17

favour the pardon has been tendered, will make a full and true disclosure of

the whole of the circumstances within his knowledge. The power of a

Sessions Court is not hedged with any other condition.

The order of learned Sessions Judge dated 3

rd

April, 2002 shows that

the learned Judge not only applied his mind on the application (Ext. P-7) for

grant of pardon filed by the Investigating Officer but also examined the

appellant by putting relevant questions to him.

The learned Sessions Judge, therefore, did not pass the order dated 3

rd

April, 2002 only on the basis of the purported confessional statement made

by Kumar Gaurav (PW-1) on 1

st

November, 2001. It was not done

mechanically. If in law it was not necessary for the learned Magistrate to

forward a copy of the confessional statement made by Kumar Gaurav (PW-

1) under Section 164 of the Code of Criminal Procedure or to record a

separate statement of the said witness for the purpose of complying with the

provisions of Section 306 of the Code of Criminal Procedure, the question as

to whether he had retracted from his confession or not would not be of much

relevance as regards exercise of power by the learned Sessions Judge under

Section 307 of the Code.

18

We may, however, notice that the learned Magistrate in his evidence

categorically opined that Kumar Gaurav (PW-1) had told him that he had not

signed the said application retracting his confession. It may be that the said

fact was not borne out from the judicial records, which were sent to the

learned Sessions Judge with the order of committal, but then we have no

reason to disbelieve the statement of the learned Magistrate.

Strong reliance has been placed by the learned senior counsel upon a

judgment of this Court in Rampal Pithwa Rahidas and Others v. State of

Maharashtra [1994 Supp (2) SCC 73] and in particular the following

passage:

“…We find ourselves unable to place any reliance

on his untrustworthy and unreliable evidence and

in that view of the matter, we refrain even from

expressing any opinion about the effect of the

alleged non-compliance with the provisions of

Section 306(4) IPC read with Section 307 IPC, as

admittedly after the grant of pardon by the order

dated 24.4.1987, no statement of Ramcharan

approver was recorded till he appeared at the trial

as PW 49. It is only after the grant of pardon that

the status of an accused is changed into that of a

witness and the law enjoins upon the Courts to

record the statement of the approver immediately

after pardon is granted to him so that he may

consider himself bound by that statement and

failure to do so at the trial would render him liable

for prosecution. That exercise was not performed

in this case.”

19

It was contended that it was obligatory on the part of the learned

Sessions Judge to comply with the requirements of Sub-section (4) of

Section 306 of the Code of Criminal Procedure. We, with respect, could not

find that any such proposition of law was laid down in the said judgment as

such.

A bare perusal of the said decision clearly goes to show that the

evidence of approver was found to be wholly untrustworthy and unreliable.

In that situation, the court refrained itself from expressing any opinion about

the effect of the alleged non-compliance with the provisions of Section

306(4) of the Code of Criminal Procedure read with Section 307 thereof.

In the case before us the pardon granted by the learned Sessions Judge

was legal. Whereas the pardon was granted on 3.04.2002, PW-1 was

examined on 29.07.2002. Thus, his evidence was recorded only after grant

of pardon.

In Narayan Chetanram Chaudhary and Another v. State of

Maharashtra [(2000) 8 SCC 457], a Division Bench of this Court, in an

almost similar situation, viz., where the confessional statement was kept in a

sealed cover and wherein also the learned Sessions Judge granted pardon,

20

declined to hold that only because some delay had occurred in granting

pardon, no reliance could be placed thereupon. It was furthermore opined

that what was mandatory was the examination of the accomplice. Non-

examination of the approver at the committal stage by the committing

Magistrate, if rectified later, would not lead to any prejudice to the accused,

stating:

“27. There is no legal obligation on the Trial Court

or a right in favour of the accused to insist for the

compliance with the requirement of Section 306(4)

of the Cr.PC. Section 307 provides a complete

procedure for recording the statement of an

accomplice subject only to compliance of

conditions specified in Sub-section (1) of Section

306. The law mandates the satisfaction of the Court

granting pardon, that the accused would make a

full and true disclosure of the circumstances within

his knowledge relative to the offence and to every

other person concerned, whether as principal or

abettor, in the commission thereof. It is not

necessary to comply with the requirement of

Section 306(4) when the pardon is tendered by the

Trial Court. The Trial Court, in this case has taken

all precautions in complying with the provisions of

the Section 306(1) before tendering pardon to

accused Raju, who later appeared as PW. 2. We do

not find any violation of law or illegality in the

procedure for tendering the pardon and recording

the statement of PW.2.”

21

If it is to be held that in each and every case pardon can only be

granted at the initial stage, the power conferred upon the Sessions Judge to

grant under Section 307 of the Code of Criminal Procedure for all intent and

purport shall become otiose.

The order of the learned judge granting pardon to the Approver,

Kumar Gaurav is, therefore, legal and valid.

LAW ON DEATH PENALTY

A Constitution Bench of this Court in Bachan Singh v. State of

Punjab [(1980) 2 SCC 684] repelled the challenge of constitutionality to

death penalty by laying down the framework law on this point. Bachan

Singh (supra) serves as a watershed moment in the history of death penalty

jurisprudence in India as it severed Indian judiciary’s normative

ambivalence on the subject.

It was pronounced after the new legislative policy (in form of section

354(3) of the Code of Criminal Procedure, 1973) came into force. The

impact of this legislative change was variously interpreted by this court, and

this disparity in interpretation triggered Bachan Singh (supra). One such

22

case, which had laid down an interpretation of section 354(3) was Rajendra

Prasad v. State of Uttar Pradesh [(1979) 3 SCC 646].

Bachan Singh court noted that death penalty is acknowledged in the

constitution. Also the new sentencing procedures were held to be to be in the

nature of safeguards and as a guidance sentencing. The sentencing procedure

was taken to be orienting the death punishment towards application in very

selective situations. On the aforementioned reasoning, the court upheld death

punishment, substantively and procedurally.

There are three broad values emerging from Bachan Singh (supra):

1.INDIVIDUALIZED SENTENCING

For an effective compliance of sentencing procedure under section

354(3) and section 235(2) Cr.P.C, sufficient discretion is a pre-condition.

Strict channeling of discretion would also go against the founding principles

of sentencing as it will prevent the sentencing court to identify and weigh

various factors relating to the crime and the criminal such as culpability,

impact on the society, gravity of offence, motive behind the crime etc.

23

Bachan Singh (supra) also holds the same view. It was held in Bachan

Singh (supra) that:

“173. Thirdly, a standardisation of the sentencing

process which leaves little room for judicial

discretion to take account of variations in

culpability within single-offence category ceases

to be judicial. It tends to sacrifice justice at the

altar of blind uniformity. Indeed, there is a real

danger of such mechanical standardisation

degenerating into a bed of procrustean cruelty.

174.Fourthly, standardisation or sentencing

discretion is a policy matter which belongs

to the sphere of legislation. When

Parliament as a matter of sound legislative

policy, did not deliberately restrict, control

or standardise the sentencing discretion any

further than that is encompassed by the

broad contours delineated in Section 354(3),

the court would not by overleaping its

bounds rush to do what Parliament, in its

wisdom, warily did not do.”

The court while discussing Furman v. Georgia, 408 U.S. 238 (1972)

in this regard held the following:

“192.It appears to us that in Gregg v. Georgia and

the companion cases, the Supreme Court of U.S.A.

was obliged to read down the requirements of

Furman and to accept these broadly worded, loose-

ended and not-all-inclusive ‘standards’ because in

the area of sentencing discretion, if it was to retain

its judicial character, exhaustive standardisation or

perfect regulation was neither feasible nor

desirable.”

24

In this context, Saibanna v. State of Karnataka [(2005) 4 SCC 165]

makes an interesting reading. The accused therein was a life convict. While

on parole, he committed murder of his wife and daughter. This Court

sentenced him to death on a reasoning, which effectively made death

punishment mandatory for the category of offenders serving life sentence,

opining:

“….A prisoner sentenced to life imprisonment is

bound to serve the remainder of his life in prison

unless the sentence is commuted or remitted and

that such sentence could not be equated with any

fixed term. (See Gopal Vinayak Godse vs. State of

Maharashtra [(1961) 3 SCR 440]. If that be so,

there could be no imposition of a second life term

on the appellant before us as it would be a

meaningless exercise.

18. In the teeth of Section 427(2) of the Code of

Criminal Procedure, 1973 it is doubtful whether a

person already undergoing sentence of

imprisonment for life can be visited with another

term of imprisonment for life to run consecutively

with the previous one.

Mandatory death punishment (prescribed under section 303 of Indian

Penal Code) was stuck down as unconstitutional by this court in Mithu v.

State of Punjab [AIR 1983 SC 473]. This court observed:

“…If the law provides a mandatory sentence of

death as Section 303 of the Penal Code does,

neither Section 235(2) nor Section 354(3) of the

Code of Criminal Procedure can possibly come

25

into play. If the court has no option save to impose

the sentence of death, it is meaningless to hear the

accused on the question of sentence and it becomes

superfluous to state the reasons for imposing the

sentence of death. The blatant reason for imposing

the sentence of death in such a case is that the law

compels the court to impose that sentence. The

ratio of Bachan Singh, therefore, is that, death

sentence is Constitutional if it is prescribed as an

alternative sentence for the offence of murder and

if the normal sentence prescribed by law for

murder is imprisonment for life.”

Justice O. Chinnappa Reddy, J. in his concurring opinion agreed with

the majority opinion and observed:

“25. Judged in the light shed by Maneka Gandhi

and Bachan Singh, it is impossible to uphold

Section 303 as valid. Section 303 excludes judicial

discretion. The scales of justice are removed from

the hands of the Judge so soon as he pronounces

the accused guilty of the offence. So final, so

irrevocable and so irrestitutable [sic irresuscitable]

is the sentence of death that no law which provides

for it without involvement of the judicial mind can

be said to be fair, just and reasonable. Such a law

must necessarily be stigmatised as arbitrary and

oppressive. Section 303 is such a law and it must

go the way of all bad laws. I agree with my Lord

Chief Justice that Section 303, Indian Penal Code,

must be struck down as unconstitutional.”

{See also Reyes v. R. [(2002) UKPC 11 : 12 BHRC 219], Hughes, R.

v. (Saint Lucia) [(2002) UKPC 12], Fox v. The Queen (2002) 2 AC 284,

26

Bowe v. The Queen (2006) 1 WLR 1623 and Coard & Ors. v. The Attorney

General (Grenada), (2007) UKPC 7}

Saibanna (supra) to that extent is inconsistent with Mithu (supra) and

Bachan Singh (supra).

2.THRESHOLD OF RAREST OF RARE

2(A). Sentencing Procedure

The analytical tangle relating to sentencing procedure deserves some

attention here. Sentencing procedure deserves an articulate and judicial

administration. In this regard, all courts are equally responsible. Sentencing

process should be so complied with, that enough information is generated to

objectively inform the selection of penalty. The selection of penalty must not

require a judge to reflect on his/her personal perception of crime. In Swamy

Shraddananda @ Murali Manohar Mishra v. State of Karantaka [2008 (10)

SCALE 669], the court notes that the awarding of sentence of death

“depends a good deal on the personal predilection of the judges constituting

the bench.” This is a serious admission on the part of this court. In so far as

27

this aspect is considered, there is inconsistency in how Bachan Singh (supra)

has been implemented, as Bachan Singh (supra) mandated principled

sentencing and not judge centric sentencing.

There are two sides of the debate. It is accepted that rarest of rare

case is to be determined in the facts and circumstance of a given case and

there is no hard and fast rule for that purpose. There are no strict guidelines.

But a sentencing procedure is suggested. This procedure is in the nature of

safeguards and has an overarching embrace of rarest of rare dictum.

Therefore, it is to be read with Article 21 and 14.

Pre-sentence Hearing and “Special Reasons”

Under section 235(2) and 354 (3) of the Criminal Procedure Code,

there is a mandate as to a full fledged bifurcated hearing and recording of

“special reasons” if the court inclines to award death penalty. In the specific

backdrop of sentencing in capital punishment, and that the matter attracts

constitutional prescription in full force, it is incumbent on the sentencing

court to oversee comprehensive compliance to both the provisions. A

scrupulous compliance of both provisions is necessary such that an informed

selection of sentence could be based on the information collected and

28

collated at this stage. Please see Santa Singh v. State of Punjab, [AIR 1956

SC 526], Malkiat Singh and Ors. v. State of Punjab, [(1991)4SCC341],

Allaudin Mian v. State of Bihar, [AIR 1989 SC 1456], Muniappan v. State

of Tamil Nadu, [( 1981 ) 3 SCC 11], Jumman Khan v. State of U.P,

[(1991)1SCC752], Anshad and Ors. v. State of Karnataka, [(1994)4SCC381]

on this.

Nature of Information to be Collated at Pre-sentence Hearing

At this stage, Bachan Singh (supra) informs the content of the

sentencing hearing. The court must play a proactive role to record all

relevant information at his stage. Some of the information relating to crime

can be culled out from the phase prior to sentencing hearing. This

information would include aspects relating to the nature, motive and impact

of crime, culpability of convict etc. Quality of evidence adduced is also a

relevant factor. For instance, extent of reliance on circumstantial evidence or

child witness plays an important role in the sentencing analysis.

But what is sorely lacking, in most capital sentencing cases, is

information relating to characteristics and socio-economic background of the

29

offender. This issue was also raised in the 48

th

report of the Law

Commission. Circumstances which may not have been pertinent in

conviction can also play an important role in the selection of sentence.

Objective analysis of the probability that the accused can be reformed and

rehabilitated can be one such illustration. In this context, guideline no. 4 in

the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is

relevant. The court held:

(4) The probability that the accused can be

reformed and rehabilitated. The State shall by

evidence prove that the accused does not satisfy

the conditions 3 and 4 above.

In fine, Bachan Singh (supra) mandated identification of aggravating and

mitigating circumstance relating to crime and the convict to be collected in

the sentencing hearing.

2(B) Nature of Content of Rarest of rare Dictum

Rarest of rare dictum breathes life in “special reasons” under section

354(3). In this context, Bachan Singh (supra) laid down a fundamental

threshold in the following terms:

30

“A real and abiding concern for the dignity of

human life postulates resistance to taking a life

through law’s instrumentality. That ought not to

be done save in the rarest of rare cases when the

alternative option is unquestionably foreclosed.”

An analytical reading of this formulation would reveal it to be an

authoritative negative precept. “Rarest of rare cases” is an exceptionally

narrow opening provided in the domain of this negative precept. This

opening is also qualified by another condition in form of “when the

alternative option is unquestionably foreclosed”. Thus, in essence, rarest of

rare dictum imposes a wide-ranging embargo on award of death

punishment, which can only be revoked if the facts of the case successfully

satisfy double qualification enumerated below:

1.that the case belongs to the rarest of rare category

2.and the alternative option of life imprisonment will just not suffice in the

facts of the case

Rarest of rare dictum serves as a guideline in enforcing section 354(3)

and entrenches the policy that life imprisonment is the rule and death

punishment is an exception. It is a settled law of interpretation that

exceptions are to be construed narrowly. That being the case, the rarest of

rare dictum places an extraordinary burden on the court, in case it selects

31

death punishment as the favoured penalty, to carry out an objective

assessment of facts to satisfy the exceptions ingrained in the rarest of rare

dictum. The background analysis leading to the conclusion that the case

belongs to rarest of rare category must conform to highest standards of

judicial rigor and thoroughness as the norm under analysis is an

exceptionally narrow exception.

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. It was in this context noted:

“The expression “special reasons” in the context of

this provision, obviously means “exceptional

reasons” founded on the exceptionally grave

circumstances of the particular case relating to the

crime as well as the criminal”

Curiously in Ravji alias Ram Chandra v. State of Rajasthan, [(1996) 2

SCC 175] this court 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, stating:

“…The crimes had been committed with utmost

cruelty and brutality without any provocation, in a

calculated manner. It is the nature and gravity of

the crime but not the criminal, which are germane

32

for consideration of appropriate punishment in a

criminal trial. The Court will be failing in its duty

if appropriate punishment is not awarded for a

crime which has been committed not only against

the individual victim but also against the society to

which the criminal and victim belong. The

punishment to be awarded for a crime must not be

irrelevant but it should conform to and be

consistent with the atrocity and brutality with

which the crime has been perpetrated, the enormity

of the crime warranting public abhorrence and it

should “respond to the society’s cry for justice

against the criminal”...”

We are not oblivious that this case has been followed in at least 6

decisions of this court in which death punishment has been awarded in last 9

years, but, in our opinion, it was rendered per incuriam. Bachan Singh

(supra) specifically noted the following on this point:

“…The present legislative policy discernible from

Section 235(2) read with Section 354(3) is that in

fixing the degree of punishment or making the

choice of sentence for various offences, including

one under Section 302 of the Penal Code, the court

should not confine its consideration “principally”

or merely to the circumstances connected with

the particular crime, but also give due

consideration to the circumstances of the

criminal”

Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra,

[AIR2009SC56], Mohan Anna Chavan v. State of Maharashtra

33

[(2008)11SCC113], Bantu v. The State of U.P., [(2008)11SCC113], Surja

Ram v. State of Rajasthan, [(1996)6SCC271], Dayanidhi Bisoi v. State of

Orissa, [(2003)9SCC310], State of U.P. v. Sattan @ Satyendra and Ors.,

[2009(3)SCALE394] are the decisions where Ravji Rao (supra) has been

followed. It does not appear that this court has considered any mitigating

circumstance or a circumstance relating to criminal at the sentencing phase

in most of these cases. It is apparent that Ravji Rao (supra) has not only

been considered but also relied upon as authority on the point that in heinous

crimes, circumstances relating to criminal are not pertinent.

2(B) Alternative Option is foreclosed

Another aspect of rarest of rare doctrine which needs serious

consideration is interpretation of latter part of the dictum – “that ought not to

be done save in the rarest of rare cases 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. death punishment,

as will be discussed in detail a little later, qualitatively stands on a very

34

different footing from other types of punishments. It is unique in its total

irrevocability.

Incarceration, life or otherwise, potentially serves more than one

sentencing aims. Deterrence, incapacitation, rehabilitation and retribution –

all ends are capable to be furthered in different degrees, by calibrating this

punishment in light of the overarching penal policy. But the same does not

hold true for the death penalty. It is unique in its absolute rejection of the

potential of convict to rehabilitate and reform. It extinguishes life and

thereby terminates the being, therefore puts an end anything to do with the

life. This is the big difference between two punishments. Before imposing

death penalty, therefore, it is imperative to consider the same.

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

35

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

rigor 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 (supra) sets the bar very high by introduction

of Rarest of rare doctrine.

In Panchhi v. State of U.P., [(1998) 7 SCC 177], this Court also

elucidates on “when the alternative option is foreclosed” benchmark in the

following terms:

16.When the Constitution Bench of this Court,

by a majority, upheld the constitutional validity of

death sentence in Bachan Singh v. State of Punjab

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 Constitution

Bench did not find death sentence valid in all cases

except in the aforesaid freaks wherein the lesser

sentence would be, by any account, wholly

inadequate. In Machhi Singh v. State of Punjab a

three-Judge Bench of this Court while following

the ratio in Bachan Singh case laid down certain

guidelines among which the following is relevant

in the present case: (SCC p. 489, para 38)

36

“(iv) A balance-sheet of aggravating and

mitigating circumstances has to be drawn up

and in doing so the mitigating circumstances

have to be accorded full weightage and a just

balance has to be struck between the

aggravating and the mitigating circumstances

before the option is exercised.”

In Bachan Singh (supra), it was stated:

“206. Dr Chitale has suggested these mitigating

factors:

“Mitigating circumstances.—In the exercise

of its discretion in the above cases, the court shall

take into account the following circumstances:

(1) That the offence was committed under the

influence of extreme mental or emotional

disturbance.

(2) The age of the accused. If the accused is

young or old, he shall not be sentenced to

death.

(3) The probability that the accused would not

commit criminal acts of violence as would

constitute a continuing threat to society.

(4) The probability that the accused can be

reformed and rehabilitated. The State shall

by evidence prove that the accused does not

satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the

case the accused believed that he was

morally justified in committing the offence.

(6) That the accused acted under the duress or

domination of another person.

(7) That the condition of the accused showed

that he was mentally defective and that the

37

said defect impaired his capacity to

appreciate the criminality of his conduct.

207.We will do no more than to say that these

are undoubtedly relevant circumstances and

must be given great weight in the

determination of sentence.”

2(C) Role and Responsibility of Courts

Bachan Singh (supra) while enunciating rarest of rare doctrine, did

not deal with the role and responsibility of sentencing court and the appellate

court separately. For that matter, this court did not specify any review

standards for High Court and the Supreme Court. In that event, all courts, be

it trial court, High Court or this court, are duty bound to ensure that the ratio

laid down therein is scrupulously followed. Same standard of rigor and

fairness are to be followed by the courts. If anything, inverse pyramid of

responsibility is applicable in death penalty cases.

In State of Maharashtra v. Sindhi, [(1975) 1 SCC 647] this Court

reiterated, with emphasis, that while dealing with a reference for

confirmation of a sentence of death, the High Court must consider the

proceedings in all their aspects, reappraise, reassess and reconsider the entire

38

facts and law and, if necessary, after taking additional evidence, come to its

own conclusions on the material on record in regard to the conviction of the

accused (and the sentence) independently of the view expressed by the

Sessions Judge.

2(D) Sentencing Justifications in Heinous Crimes

It has been observed, generally and more specifically in the context of

death punishment, that sentencing is the biggest casualty in crimes of brutal

and heinous nature. Our capital sentencing jurisprudence is thin in the sense

that there is very little objective discussion on aggravating and mitigating

circumstances. In most such cases, courts have only been considering the

brutality of crime index. There may be other factors which may not have

been recorded.

We must also point out, in this context, that there is no consensus in

the court on the use of “social necessity” as a sole justification in death

punishment matters. The test which emanates from Bachan Singh (supra) in

clear terms is that the courts must engage in an analysis of aggravating and

mitigating circumstances with an open mind, relating both to crime and the

39

criminal, irrespective of the gravity or nature of crime under consideration.

A dispassionate analysis, on the aforementioned counts, is a must. The

courts while adjudging on life and death must ensure that rigor and fairness

are given primacy over sentiments and emotions.

In Panchhi (supra), the court downplayed the heinous nature of crime

and relied on mitigating circumstances in the final opinion. The court held:

“20. We have extracted the above reasons of the

two courts only to point out that it is the savagery

or brutal manner in which the killers perpetrated

the acts on the victims including one little child

which had persuaded the two courts to choose

death sentence for the four persons. No doubt

brutality looms large in the murders in this case

particularly of the old and also the tender-aged

child. It may be that the manner in which the

killings were perpetrated may not by itself show

any lighter side but that is not very peculiar or very

special in these killings. Brutality of the manner in

which a murder was perpetrated may be a ground

but not the sole criterion for judging whether the

case is one of the “rarest of rare cases” as

indicated in Bachan Singh case. In a way, every

murder is brutal, and the difference between one

from the other may be on account of mitigating or

aggravating features surrounding the murder.”

40

In Vashram Narshibhai Rajpara v. State of Gujarat [(2002) 9 SCC

168], this court relied on the dictum of Panchhi and further explained the

approach:

“….As to what category a particular case would

fall depends, invariably on varying facts of each

case and no absolute rule for invariable application

or yardstick as a ready reckoner can be formulated.

In Panchhi v. State of U.P. it has been observed

that the brutality of the manner in which the

murder was perpetrated may not be the sole ground

for judging whether the case is one of the “rarest

of rare cases”, as indicated in Bachan Singh v.

State of Punjab and that every murder being per se

brutal, the distinguishing factors should really be

the mitigating or aggravating features surrounding

the murder. The intensity of bitterness, which

prevailed, and the escalation of simmering

thoughts into a thirst for revenge or retaliation

were held to be also a relevant factor.”

This court also gave primacy to mitigating circumstances in the final

analysis:

“10. Considering the facts of the case presented

before us, it is on evidence that despite his

economic condition and earnest attempt to

purchase a house for the family after raising loans,

the wife and daughters were stated to be not

pleased and were engaging in quarrels constantly

with the appellant. Though they were all living

together the continuous harassment and constant

nagging could have very well affected his mental

41

balance and such sustained provocation could have

reached a boiling point resulting in the dastardly

act. As noticed even by the High Court the

appellant though hailing from a poor family had no

criminal background and it could not be

reasonably postulated that he will not get

rehabilitated or that he would be a menace to the

society. The boy of tender age would also once for

all be deprived of the parental protection. Keeping

in view all these aspects, in our view, it could not

be said that the imposition of life imprisonment

would not adequately meet the requirements of the

case or that only an imposition of the extreme

punishment alone would do real or effective

justice. Consequently, we direct the modification

of the sentence of death into one of rigorous

imprisonment for life, by partly allowing the

appeal to that extent. In other respects the appeal

shall stand dismissed. The appellant shall undergo

the remaining period of sentence as above.”

In Om Prakash v. State of Haryana, [(1999) 3 SCC 19], K.T. Thomas,

J. deliberated on the apparent tension between responding to “cry of the

society” and meeting the Bachan Singh (supra) dictum of balancing the

“mitigating and aggravating circumstances”. The court was of the view that

the sentencing court is bound by Bachan Singh (supra) and not in specific

terms to the incoherent and fluid responses of society:

7. It is true that court must respond to the cry

of the society and to settle what would be a

deterrent punishment for an abominable crime. It is

42

equally true that a large number of criminals go

unpunished thereby increasing criminals in the

society and law losing its deterrent effect. It is also

a truism as observed in the case of State of M.P. v.

Shyamsunder Trivedi [SCC at p.273] that the

exaggerated adherence to and insistence upon the

establishment of proof beyond every reasonable

doubt, by the prosecution, ignoring the ground

realities, the fact situation and the peculiar

circumstances of a given case often results in

miscarriage of justice and makes the justice

delivery system a suspect; in the ultimate analysis,

the society suffers and a criminal gets encouraged.

Sometimes it is stated that only rights of the

criminals are kept in mind, the victims are

forgotten. Despite this it should be kept in mind

that while imposing the rarest of rare punishment,

i.e., death penalty, the court must balance the

mitigating and aggravating circumstances of the

crime and it would depend upon particular and

peculiar facts and circumstances of each case.”

In Dharmendrasinh v. State of Gujarat, [(2002) 4 SCC 679], the court

acknowledged that the crime committed was “no doubt heinous and

unpardonable” and that two innocent children lost their lives for no fault of

their, but the court chose to give force to mitigating circumstances in the

following terms:

“The offence was obviously not committed for lust

of power or otherwise or with a view to grab any

property nor in pursuance of any organized

criminal or anti-social activity. Chances of

repetition of such criminal acts at his hands

43

making the society further vulnerable are also not

apparent. He had no previous criminal record.”

The court also stated the law in the following terms:

“20. Every murder is a heinous crime. Apart from

personal implications, it is also a crime against the

society but in every case of murder death penalty

is not to be awarded. Under the present legal

position, imprisonment for life is the normal rule

for punishing crime of murder and sentence of

death, as held in different cases referred to above,

would be awarded only in the rarest of rare cases.

A number of factors are to be taken into account

namely, the motive of the crime, the manner of the

assault, the impact of the crime on the society as a

whole, the personality of the accused,

circumstances and facts of the case as to whether

the crime committed, has been committed for

satisfying any kind of lust, greed or in pursuance

of anti-social activity or by way of organized

crime, drug trafficking or the like. Chances of

inflicting the society with a similar criminal act

that is to say vulnerability of the members of the

society at the hands of the accused in future and

ultimately as held in several cases, mitigating and

aggravating circumstances of each case have to be

considered and a balance has to be struck. The

learned State counsel as indicated earlier has

already indicated the aggravating circumstances by

reason of which it has been vehemently urged that

sentence of death deserves to be confirmed.”

Whether primacy should be accorded to aggravating circumstances or

mitigating circumstances is not the question. Court is duty bound by virtue

44

of Bachan Singh (supra) to equally consider both and then to arrive at a

conclusion as to respective weights to be accorded. We are also bound by

the spirit of Article 14 and Article 21 which forces us to adopt a principled

approach to sentencing. This overarching policy flowing from Bachan Singh

(supra) applies to heinous crimes as much as it applies to relatively less

brutal murders. The court in this regard held:

“Judges should never be bloodthirsty. Hanging of

murderers has never been too good for them. Facts

and figures albeit incomplete, furnished by the

Union of India, show that in the past Courts have

inflicted the extreme penalty with extreme

infrequency - a fact which attests to the caution

and compassion which they have always brought

to bear on the exercise of their sentencing

discretion in so grave a matter. It is, therefore,

imperative to voice the concern that courts, aided

by the broad illustrative guidelines indicated by us,

will discharge the onerous function with evermore

scrupulous care and humane concern, directed

along the highroad of legislative policy outlined in

Section 354(3), viz., that for persons convicted of

murder, life imprisonment is the rule and death

sentence an exception.”

2(E). Public Opinion in Capital Sentencing

It is also to be pointed out that 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

45

extraneous to conviction as also sentencing, at least in capital sentencing

according to the mandate of Bachan Singh (supra).

Rarest of rare policy and legislative policy on death punishment may

not be essentially tuned to public opinion. Even if presume that the general

populace favours a liberal DP policy, although there is no evidence to this

effect, we can not take note of it. We are governed by the dictum of Bachan

Singh (supra) according to which life imprisonment is the rule and death

punishment is an exception. We are also governed by the Constitution of

India. Article 14 and 21 are constitutional safeguards and define the

framework for state in its functions, including penal functions. They

introduce values of institutional propriety, in terms of fairness,

reasonableness and equal treatment challenge with respect to procedure to be

invoked by the state in its dealings with people in various capacities,

including as a convict. The position is, if the state is precariously placed to

administer a policy within the confines of Article 21 and 14, it should be

applied most sparingly. This view flows from Bachan Singh (supra) and it

this light, we are afraid that Constitution does not permit us to take a re-look

on the capital punishment policy and meet society’s cry for justice through

this instrument.

46

The fact that we are here dealing with safeguards entrenched in the

Constitution should materially change the way we look for reasons while

awarding the death punishment. The arguments which may be relevant for

sentencing with respect to various other punishments may cease to apply in

light of the constitutional safeguards which come into operation when the

question relates to extinguishment of life. If there are two considerations, the

one which has a constitutional origin shall be favoured.

An inherent problem with consideration of public opinion is its

inarticulate state. Bachan Singh (supra) noted that judges are ill-equipped to

capture public opinion:

“125. Incidentally, the rejection by the people of

the approach adopted by the two learned Judges in

Furman, furnishes proof of the fact that judicial

opinion does not necessarily reflect the moral

attitudes of the people. At the same time, it is a

reminder that Judges should not take upon

themselves the responsibility of becoming oracles

or spokesmen of public opinion: Not being

representatives of the people, it is often better, as a

matter of judicial restraint, to leave the function of

assessing public opinion to the chosen

representatives of the people in the legislature

concerned.

47

…"The highest judicial duty is to recognise the

limits on judicial power and to permit the

democratic processes to deal with matters falling

outside of those limits." As Judges, we have to

resist the temptation to substitute our own value

choices for the will of the people. Since

substituted. judicial "made-to-order* standards,

howsoever painstakingly made, do not bear the

people's imprimatur, they may not have the same

authenticity and efficacy as the silent zones and

green belts designedly marked out and left open

by Parliament in its legislative planning for fair-

play of judicial discretion to take care of the

variable, unpredictable circumstances of the

individual cases, relevant to individualised

sentencing. When Judges, acting individually or

collectively, in their benign anxiety to do what

they think is morally good for the people, take

upon themselves the responsibility of setting;

down social norms of conduct, there is every

danger, despite their effort to make a rational

guess of the notions of right and wrong prevailing

in the community at large and despite their

intention to abide by the dictates of mere reason,

that they might write their own peculiar view or

personal predilection into the law, sincerely

mistaking that changeling for what they perceive

to be the Community ethic. The perception of

'community' standards or ethics may very from

Judge to Judge..”

Justice Powell's dissent in Furman (supra) also bears repetition in this

regard:

"But however one may assess amorphous ebb and

flow of public opinion generally on this volatile

issue, this type of inquiry lies at the periphery not

the core of the judicial process in constitutional

48

cases. The assessment of popular opinion is

essentially a legislative, and not a judicial,

function."

The constitutional role of the judiciary also mandates taking a perspective on

individual rights at a higher pedestal than majoritarian aspirations. To that

extent we play a countermajoritarian role. And this part of debate is not only

relevant in the annals of judicial review, but also to criminal jurisprudence.

Justice Jackson in West Virginia State Board of Education v. Barnette, [319

U.S. 624 (1943)] also opined on similar lines:

"The very purpose of a bill of rights was to

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the

reach of majorities and officials and to establish

them as legal principles to be applied by the courts.

One's right to life, liberty, and property, to free

speech, a free press, freedom of worship and

assembly and other fundamental rights may not be

submitted to vote; they depend on the outcome of

no elections."

Public Opinion may also run counter to the Rule of law and

constitutionalism. Bhagalpur Blinding case or the recent spate of attacks on

right to trial of the accused in the Bombay Blast Case are recent examples.

We are also not oblivious to the danger of capital sentencing becoming a

spectacle in media. If media trial is a possibility, sentencing by media can

49

not be ruled out. Andrew Ashworth, a leading academic in the field of

sentencing, who has been at the center of sentencing reforms in U.K.,

educates us of the problems in factoring in public opinion in the sentencing.

He (with Michael Hough), observes in an article, Sentencing and the

Climate of Opinion (1996, Criminal Law Review):

“The views of sentencing held by people outside

the criminal justice system-- "the general public"--will

always be important even if they should not be

determinative in court. Unfortunately, the concept of

public opinion in relation to sentencing practices is

often employed in a superficial or simplistic way. In

this short article we have identified two major

difficulties with the use of the concept. First, members

of the public have insufficient knowledge of actual

sentencing practices. Second, there is a significant but

much-neglected distinction between people's sweeping

impressions of sentencing and their views in relation

to particular cases of which they know the facts. When

it is proclaimed that the public think the courts are too

lenient, both these difficulties are usually suppressed.

To construct sentencing policy on this flawed and

partial notion of public opinion is irresponsible.

Certainly, the argument is hard to resist that public

confidence in the law must be maintained. It is also

hard to resist the proposition that public confidence in

sentencing is low and probably falling. However, since

the causes of this lie not in sentencing practice but in

misinformation and misunderstanding, and (arguably)

in factors only distantly related to criminal justice,

ratcheting up the sentencing tariff is hardly a rational

way of regaining public confidence.

This is not to deny that there is political capital to

be made, at least in the short term, by espousing

50

sentencing policies which have the trappings of tough,

decisive action. However, the underlying source of

public cynicism will not have been addressed; and

once politicians embark on this route, they may be

committing themselves long-term to a treadmill of

toughness, "decisiveness", and high public

expenditure. The political costs of withdrawing from

tough policies, once embarked on, may be too high for

politicians of any hue to contemplate. The United

States serves as an example.

If the source of falling public confidence in

sentencing lies in lack of knowledge and

understanding, the obvious corrective policy is to

explain and to educate, rather than to adapt sentencing

policy to fit a flawed conception of public opinion. But

who should be the target of such explanation and

education? We have serious doubts whether attempts

to reach the ordinary citizen directly will have any

impact at all. On the other hand, we think it feasible,

within limits, to educate those who shape public

opinion. Newspaper and television journalists, for

example, responded well to the initiatives in the 1980s

intended to curb the reporting of crime in ways that

needlessly fuelled fear of crime. A similar initiative

should now be mounted in relation to sentencing.”

Capital sentencing is one such field where the safeguards continuously take

strength from the Constitution, and on that end we are of the view that

public opinion does not have any role to play. In fact, the case where there is

overwhelming public opinion favouring death penalty would be an acid test

of the constitutional propriety of capital sentencing process.

51

3.PRINCIPLED SENTENCING

3(A). Mandate of Bachan Singh (supra) on Value of Precedents

This court laid down rarest of rare dictum therein and thereby

endorsed a broad sentencing threshold. It has been interpreted by courts in

various ways.

It is important to note here that principled application of rarest of rare

dictum does not come in the way of individualized sentencing. With

necessary room for sentencing, consistency has to be achieved in the manner

in which rarest of rare dictum has to be applied by courts.

Bachan Singh (supra) expressly barred one time enunciation of minute

guidelines through a judicial verdict. The court held that only executive is

competent to bring in detailed guidelines to regulate discretion. On this

count judicial restraint was advocated. But at the same time, it actively relied

on judicial precedent in disciplining sentencing discretion to repel the

argument of arbitrariness and Article 14 challenge. An embargo on

introduction of judicial guidelines was put therein but organic evolution of

52

set of principles on sentencing through judicial pronouncements was not

ruled out. This is how precedent aids development of law in any branch of

law and capital sentencing can not be an exception to this.

Sentencing discretion is also a kind of discretion and is shall be

exercised judicially in light of the precedents.

It observes that the superior courts must correct wrong application of

section 302. It is very obvious that appellate courts can not discharge review

function without taking aid of established principles. In Jagmohan Singh v.

State of U.P., [(1973) 1 SCC 20], the Court’s observation in this context was

subsequently followed noting:

“…The impossibility of laying down standards is

at the very core of the criminal law as administered

in India which invests the judges with a very wide

discretion in the matter of fixing the degree of

punishment. The discretion in the matter of

sentence is, as already pointed out, liable to be

corrected by superior courts. Laying down of

standards to the limited extent possible as was

done in the Model Judicial Code would not serve

the purpose. The exercise of judicial discretion

on well-recognised principles is, in the final

analysis, the safest possible safeguards for the

accused.”

53

Bachan Singh (supra) elaborated on “well recognized principles” in

the following terms:

“197.In Jagmohan, this Court had held that this

sentencing discretion is to be exercised judicially

on well recognised principles, after balancing all

the aggravating and mitigating circumstances of

the crime. By “well recognised principles” the

court obviously meant the principles

crystallised by judicial decisions illustrating as

to what were regarded as aggravating or

mitigating circumstances in those cases. The

legislative changes since Jagmohan — as we have

discussed already — do not have the effect of

abrogating or nullifying those principles. The only

effect is that the application of those principles is

now to be guided by the paramount beacons of

legislative policy discernible from Sections 354(3)

and 235(2), namely: (1) The extreme penalty can

be inflicted only in gravest cases of extreme

culpability; (2) In making choice of the sentence,

in addition to the circumstances, of the offence,

due regard must be paid to the circumstances of

the offender, also.”

It continuing in the same vein held:

“Cognizant of the past experience of the

administration of death penalty in India,

Parliament, in its wisdom, thought it best and safe

to leave the imposition of this gravest punishment

in gravest cases of murder, to the judicial

discretion of the courts which are manned by

persons of reason, experience and standing in the

profession. The exercise of this sentencing

discretion cannot be said to be untrammelled

54

and unguided. It is exercised judicially in

accordance with well recognised principles

crystallised by judicial decisions, directed along

the broad contours of legislative policy towards

the signposts enacted in Section 354(3).”

3(B). Cases Where Death Penalty Was Imposed/Affirmed

In Ram Singh v. Sonia and Ors. [2007 (3) SCALE 106] the accused

couple had, in a most diabolic manner, ended the lives of their family

members, which included the step brother of the wife, his children and even

her own father, mother and sister, all with the motive of inheriting the family

property. This Court noting the cold blooded and pre meditated approach in

murdering the family while they were all sleeping considered it as a fit case

for the imposition of death penalty on the couple.

In Prajeet Kumar Singh v. State of Bihar [2008 (4) SCALE 442] the

accused had murdered the children of the family where he had been staying

as a tenant for the past four years, while they were sleeping. He thereafter

proceeded to attack the adult members of the family who on hearing the

screams of their children had come to their rescue. The court noting the

55

brutality of manner of the attack considered it a fit case for the imposition of

death sentence.

In Mohan Anna Chavan (supra) the court upheld the death sentence

imposed on a serial rapist. The accused had already been convicted twice for

the raping a minor girl, but on the first occasion he was awarded a sentence

only of two years and on the second, sentence of ten years rigorous

imprisonment only. When the accused was convicted of raping and

murdering two minor girls again, the court refused to interfere with the death

sentence awarded by the lower courts.

In Bantu v. State of Uttar Pradesh [2008 (10) SCALE 336] the

accused had, after raping a six year old girl, tried to conceal his crime by

inserting a stick in her vagina which ultimately resulted in causing her death.

The court noted that the depraved acts of the accused only deserved a death

sentence.

In Shivaji @ Dady Shankar Alhat (supra) the accused had raped and

murdered a nine year old girl. This Court therein rejecting the argument that

the conviction having been based in circumstantial evidence, death penalty

56

should not be awarded, affirmed the death penalty awarded by the lower

court.

In State of U.P. v. Sattan, [ 2009 (3) SCALE 394 ], six members of

a family were murdered by the accused leaving only three survivors over

some personal enmity. The trial court awarded them death sentence. The

High Court commuted the sentence to one of life imprisonment. The

Supreme Court in appeal noting the brutality of murder held that the accused

deserved only a death penalty.

3(C). Cases Where Death Penalty was not Awarded/ Affirmed

In Ujjagar Singh v. State of Punjab, [2007 (14) SCALE 428] the

accused had been convicted of murder and rape and accordingly sentenced

to death by the lower courts. This Court in appeal, acquitting the accused

only of the charge of rape because of the lack of evidence, noted that since

the charge of rape formed a substantial portion of reasoning for causing the

death, the death sentence on the accused could no longer be sustained, once

he was acquitted on that charge. The sentence was accordingly altered to one

of life imprisonment.

57

In Amrit Singh v. State of Punjab [2006 (11) SCALE 309] the

accused had raped a minor girl. The victim died a painful death because of

bleeding from her private parts. The court, however, noted that the accused

might not have had the intention of murdering the victim, but her death was

only the unfortunate inevitable consequence of the crime, hence it did not

fall within the rarest of the rare cases.

In Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2) SCALE

42], this Court commuted the death penalty of the accused on the ground

that the prosecution case was entirely based on circumstantial evidence.

In State of Maharashtra v. Prakash Sakha Vasave and others, [ 2009

(1) SCALE 713] the accused had brutally attacked with axes the husband of

their sister, who was having an illicit relationship with another woman. The

trial court had found two of the accused guilty and sentenced them to death.

In appeal the High Court acquitted the accused because of lack of evidence.

This Court in appeal set aside the judgment of acquittal passed by the High

Court but noticed that the case before it did not fall in the rarest of rare and

deserved only a life imprisonment.

58

3(D) Differing opinion in other cases

While dealing with a matter as to whether death penalty should be

awarded or not, although the court ordinarily would look to the precedents,

but, this becomes extremely difficult, if not impossible, in the context of the

cases discussed above. There is no uniformity of precedents, to say the least.

In most cases, the death penalty has been affirmed or refused to be affirmed

by us, without laying down any legal principle.

In Aloke Nath Dutt and ors. v. State of West Bengal, [2006 (13)

SCALE 467] this Court after examining various judgments over the past two

decades in which the issues of rarest of rare fell for consideration, admitted

the failure on the part of this Court to evolve a uniform sentencing policy in

capital punishment cases and conclude as to what amounted to ‘rarest of

rare’. Disparity in sentencing has also been noted in Swamy Shraddananda

v. State of Karnataka (Swamy Shraddananda – I) [(2007) 12 SCC 288].

In the aforementioned backdrop, we may notice a recent three-Judge

Bench decision of this Court in Swamy Shraddananda @ Murali Manohar

59

Mishra (supra). Aftab Alam, J., writing the judgment for the Three-Judge

Bench held:

“33. The truth of the matter is that the question of

death penalty is not free from the subjective

element and the confirmation of death sentence or

its commutation by this Court depends a good deal

on the personal predilection of the judges

constituting the bench.

34. The inability of the Criminal Justice System to

deal with all major crimes equally effectively and

the want of uniformity in the sentencing process by

the Court lead to a marked imbalance in the end

results. On the one hand there appears a small band

of cases in which the murder convict is sent to the

gallows on confirmation of his death penalty by

this Court and on the other hand there is a much

wider area of cases in which the offender

committing murder of a similar or a far more

revolting kind is spared his life due to lack of

consistency by the Court in giving punishments or

worse the offender is allowed to slip away

unpunished on account of the deficiencies in the

Criminal Justice System. Thus the overall larger

picture gets asymmetric and lop-sided and presents

a poor reflection of the system of criminal

administration of justice. This situation is matter of

concern for this Court and needs to be remedied.”

The issue of subjectivity has also been previously noticed by both

academics and this Court. Professor Anthony R. Blackshield’s analysis in

the mid 1970s showed this trend in the pre-Bachan Singh period. [see

60

Journal of the Indian Law Institute 1979]. This was also noticed by

Bhagwati, J. in his dissenting judgment in Bachan Singh (supra).

In the post-Bachan Singh period, a joint report by the Amnesty

International - India and People’s Union for Civil Liberties Report titled

“Lethal Lottery: The Death Penalty in India, A study of Supreme Court

Judgments in death penalty cases 1950-2006” and the Swamy Shraddananda

(supra) judgment show quite clearly that not much has changed in this

respect.

To assist future benches at considering the facts of individual cases

however, the Constitution Bench in Bachan Singh (supra) did however note

certain aggravating and mitigating factors mentioned by the Amicus Curie

(drawn from jurisprudence from the USA as also Clauses (2)(a), (b), (c) and

(d) of the already lapsed Indian Penal Code (Amendment) Bill, 1972). The

Supreme Court did however endorse them, referring to them as

“undoubtedly relevant circumstances and must be given great weight in the

determination of sentence”.

61

Machhi Singh v. State of Punjab, [ (1983) 3 SCC 470 ] went further

and made a tabular comparison of such mitigating and aggravating

circumstances.

Yet as the above discussion has clearly shown, it is now clear that

even the balance-sheet of aggravating and mitigating circumstances

approach invoked on a case by case basis has not worked sufficiently well so

as to remove the vice of arbitrariness from our capital sentencing system. It

can be safely said that the Bachan Singh threshold of “rarest of rare cases”

has been most variedly and inconsistently applied by the various High

Courts as also this court. At this point we also wish to point out that the

uncertainty in the law of capital sentencing has special consequence as the

matter relates to death penalty – the gravest penalty arriving out of the

exercise of extraordinarily wide sentencing discretion, which is irrevocable

in nature. This extremely uneven application of Bachan Singh (supra) has

given rise to a state of uncertainty in capital sentencing law which clearly

falls foul of constitutional due process and equality principle. The situation

is unviable as legal discretion which is conferred on the executive or the

judiciary is only sustainable in law if there is any indication, either though

law or precedent, as to the scope of the discretion and the manner of its

62

exercise. There should also be sufficient clarity having regard to the

legitimate aim of the measure in question. Constitution of India provides for

safeguards to give the individual adequate protection against arbitrary

imposition of criminal punishment.

Although these questions are not under consideration and cannot be

addressed here and now, we cannot help but observe the global move away

from the death penalty. Latest statistics show that 138 nations have now

abolished the death penalty in either law or practice (no executions for 10

years). Our own neighbours, Nepal and Bhutan are part of these abolitionist

nations while others including Philippines and South Korea have also

recently joined the abolitionist group, in law and in practice respectively. We

are also aware that on 18 December 2007, the United Nations General

Assembly adopted resolution 62/149 calling upon countries that retain the

death penalty to establish a worldwide moratorium on executions with a

view to abolishing the death penalty.

India is, however, one of the 59 nations that retain the death penalty.

Credible research, perhaps by the Law Commission of India or the National

63

Human Rights Commission may allow for an up to date and informed

discussion and debate on the subject.

CONSTITUTIONAL LANDSCAPE ON CAPITAL SENTENCING:

MINIMUM SAFEGUARDS

We have already dealt with the ratio of Bachan Singh (supra) in detail

but here we would focus on the backdrop to the Rarest of rare dictum and

the dilemma faced by the Bachan Singh court in this regard. The perspective

which emerges from this reading showcases the constitutional riddle which

is inherent to law on capital sentencing in India.

At the very outset Bachan Singh (supra) delineated the scope of the

matter in the following terms:

“The principal questions that fall to be considered

in this case are:

(i) Whether death penalty provided for the offence

of murder in Section 302, Penal Code is

unconstitutional.

(ii) If the answer to the foregoing question be in

the negative, whether the sentencing procedure

provided in Sec. 354(3) of the Code of Criminal

Procedure, 1973 is unconstitutional on the ground

that it invests the Court with unguided and

untrammeled discretion and allows death sentence

to be arbitrarily or freakishly imposed on a person

64

found guilty of murder or any other capital

offence punishable under the Indian Penal Code

with death or, in the alternative, with

imprisonment for life.”

In the ensuing discussion, the court held that Sections 302 Penal Code

and 354(3) of the Code of Criminal Procedure, 1973 are constitutional but

only after enunciating “broad guidelines and principles” which today govern

the practice on capital sentence in all courts, be it trial courts or the appellate

courts.

In one sense, the scope of Bachan Singh (supra) was fully met when it

practically declared death penalty (procedurally and substantively)

constitutional but the bench went on to entrench an unprecedented

jurisprudence on the sentencing front. This jurisprudence, of which Rarest

of rare dictum is the central part, forms the bed rock of death penalty

jurisprudence. The way ahead shown by Bachan Singh (supra) is not merely

in compliance of statutory safeguards under section 354(3) and section

235(2) but also of Rarest of rare dictum. Therefore, the overall legislative

scheme on death penalty was cleared of constitutional challenge only after it

was conjoined with the Rarest of rare dictum.

65

Thomas, J. also reached to a similar conclusion in Ram Deo Chauhan

v. State of Assam [(2001) 5 SC 714]:

“A peep into the historical background of how death

penalty survived Article 21 of the Constitution

would be useful in this context.

Apart from the two schools of thought putting

forward their respective points of view stridently -

one pleading for retention of death penalty and the

other for abolition of it - a serious question arose

whether the law enabling the State to take away the

life of a person by way of punishment would be hit

by the forbid contained in Article 21 of the

Constitution. In Bachan Singh vs. State of Punjab

(supra) the majority Judges of the Constitution

Bench saved the death penalty from being chopped

out of the statute book by ordering that death penalty

should be strictly restricted to the tiniest category of

the rarest of the rare cases in which the lesser

alternative is unquestionably foreclosed.”

On a deeper reading of Bachan Singh (supra) it becomes clear that the

court was operating under two fundamental constraints while dealing with

the constitutionality challenge:

66

Firstly, death penalty is mentioned in the Constitution (for instance

under Article 161 and Article 72(1)(c). Constitutional recognition was taken

to be a primary signal for the legitimacy for section 302.

Secondly, owing to separation of power doctrine, the court took a

deferential view towards section 354(3) which was brought in to discipline

the courts on death penalty by making life imprisonment the rule and death

penalty exception.

Laboring under the aforementioned constraints, the death penalty was

held constitutional. This affirmative response to constitutionality of death

penalty presented another complicated challenge which related to

administration of death penalty or in other words, sentencing of capital

punishment. This has been universally considered as a vexed question of law

and practice and has not been satisfactorily dealt with in any jurisdiction so

far.

It is interesting to note here that this Court opined in State of Punjab

v. Prem Sagar and Ors. [JT 2008 (7) SC 66], as late as 2008, that there is no

sentencing policy in India. But Bachan Singh (supra) treated death penalty

67

as an exceptional penalty, different from any other punishment, and did lay

down a policy prescription on sentencing, way back in 1980.

We have also noticed that in numerous decisions of this court,

constitutional guarantees have been invoked at some stage of capital

sentencing. Similarly, rarest of rare dictum takes its colour from

constitutional guarantees.

1. “JUSTICE” IN CAPITAL SENTENCING

Justice must be the first virtue of the law of sentencing. A sentencing

court must consider itself to be a "forum of principle". The central idea of

such a forum is its continuing commitment to inhere a doctrinal approach

around a core normative idea. “Principled reasoning” flowing from judicial

precedent or legislation is the premise from which the courts derive the

power. The movement to preserve substantial judicial discretion to

individualize sentences within a range of punishments also has its basis in

the court’s ability to give principled reasoning.

68

The claim of sentencing to being a principled exercise is very important

to the independent and unpartisan image of judiciary. R. v. Willaert (1953),

105 C.C.C. 172 (Ont.C.A.) way back in 1953, envisaged the role of judge in

sentencing as "an art--a very difficult art--essentially practical, and directly

related to the needs of society." We have now come from that description of

court to court as “forum of principle”. This role is consistent with the

constitutional mandate of due process and equal protection.

(See Ronald Dworkin, The Forum of Principle 56 NYU L. Rev. 469

(1981) for more on “forum of principle”; for more on justice and sentencing

see Von Hirsch and Andrew Ashworth, The Sentencing Theory Debate:

Convergence in Outcomes, Divergence in Reasoning Proportionate

Sentencing: Exploring The Principles, Oxford University Press, 2005)

There is a fundamental relationship between the legitimacy of sentence

belonging to a particular potency and the reasons accorded by the court to

justify the same. This flows from the inherent nature of punishment which

can be understood as a coercive force invoked by the state for a legitimate

purpose. It was Bentham who said that "all punishment in itself is evil. Upon

the principle of utility, if it ought at all to be admitted, it ought only to be

69

admitted in as far as it promises to exclude some greater evil." (See Jeremy

Bentham, An Introduction to the Principles of Morals and Legislation, in A

Fragment of Government with An Introduction to the Principles of Morals

and Legislation 281 (1948).)

The reasons which are accorded by the court to justify the punishment

should be able to address the questions relating to fair distribution of

punishment amongst similarly situated convicts. This may be called the

problem of distributive justice in capital sentence. In this context, the inquiry

under Article 14 becomes significant. Fairness in this context has two

aspects:

First refers to fair distribution amongst like offenders

And the second relates to the appropriate criteria for the punishment.

The sentencing process, based on precedents around Bachan Singh

(supra), should help us to determine specific, deserved sentences in

particular cases. The reason as to why questions of justice play such an

important part in the distribution of capital punishment, lies in the special

nature of capital punishment itself. Distributive justice is a relative notion:

70

one can never determine whether one has received one's fair share except by

comparison with that which has been allocated to others. Both questions are

intertwined when we speak of Capital Sentence.

Scholars have described the problem of disparate sentencing variously.

Characterizing a situation before sentencing reforms swept American

jurisdiction, when judges were using personal judgments to decide the

questions of sentencing, Marvin Frankel referred the practice as "wasteland

in the law" and the general situation as one of "lawlessness." (See Marvin E.

Frankel, Lawlessness in Sentencing, 41 U. Cin. L. Rev. 1 (1972))

2. EQUAL PROTECTION CLAUSE

A survey of the application of Rarest of rare doctrine in various courts

will reveal that various courts have given their own meaning to the doctrine.

This variation in the interpretation of Rarest of rare analysis may amount to

be constitutionally infirm because of apparent arbitrariness on the count of

content of the doctrine.

71

The moot question is whether, after more than quarter of a century

since Bachan Singh (supra) recognized death penalty as a constitutionally

permissible penalty, we can distill a meaningful basis from our precedent on

death penalty, for distinguishing the few cases in which the capital sentence

is imposed from the many cases in which it is not? A similar question was

put by Justice Stewart in Furman (supra). He noted death sentences are cruel

and unusual in the same way as being “struck by lightning is cruel and

unusual”. Moreover, the petitioners sentenced to death were seen as

"capriciously selected random handful" and the question posed was whether

the eighth amendment could tolerate death sentences "so wantonly and so

freakishly imposed." Today, it could be safely said in the context of Indian

experience on death penalty that no standards can be culled out from the

judge made law which governs the selection of penalty apart from broad

overall guideline of Rarest of rare under Bachan Singh (supra).

Frequent findings as to arbitrariness in sentencing under section 302

may violate the idea of equal protection clause implicit under Article 14 and

may also fall foul of the due process requirement under Article 21. It is to be

noted that we are not focusing on whether wide discretion to choose between

life imprisonment and death punishment under section 302 is

72

constitutionally permissible or not. The subject-matter of inquiry is how

discretion under section 302 may result in arbitrariness in actual sentencing.

Section 302 as held by Bachan Singh (supra) is not an example of law which

is arbitrary on its face but is an instance where law may have been arbitrarily

administered.

In Swamy Shraddananda (supra), this court noted arbitrariness-in-fact

prevalent in the capital sentencing process with extraordinary candour:

“Coupled with the deficiency of the Criminal

Justice System is the lack of consistency in the

sentencing process even by this Court. It is noted

above that Bachan Singh laid down the principle of

the Rarest of rare cases. Machhi Singh, for practical

application crystallised the principle into five

definite categories of cases of murder and in doing

so also considerably enlarged the scope for

imposing death penalty. But the unfortunate reality

is that in later decisions neither the Rarest of rare

cases principle nor the Machhi Singh categories

were followed uniformly and consistently. In Aloke

Nath Dutta v. State of West Bengal Sinha J. gave

some very good illustrations from a number of

recent decisions in which on similar facts this Court

took contrary views on giving death penalty to the

convict (see paragraphs 154 to 182, pp.504-510

SCALE). He finally observed that `courts in the

matter of sentencing act differently although the

fact situation may appear to be somewhat similar'

and further `it is evident that different benches had

taken different view in the matter'. Katju J. in his

73

order passed in this appeal said that he did not agree

with the decision in Aloke Nath Dutt in that it held

that death sentence was not to be awarded in a case

of circumstantial evidence. Katju J. may be right

that there can not be an absolute rule excluding

death sentence in all cases of circumstantial

evidence (though in Aloke Nath Dutta it is said

`normally' and not as an absolute rule). But there is

no denying the illustrations cited by Sinha J. which

are a matter of fact.

32. The same point is made in far greater detail in a

report called, "Lethal Lottery, The Death Penalty in

India" compiled jointly by Amnesty International

India and Peoples Union For Civil Liberties, Tamil

Nadu & Puducherry. The report is based on the

study of Supreme Court judgments in death penalty

cases from 1950 to 2006. One of the main points

made in the report (see chapter 2 to 4) is about the

Court's lack of uniformity and consistency in

awarding death sentence.

33. The truth of the matter is that the question of

death penalty is not free from the subjective

element and the confirmation of death sentence or

its commutation by this Court depends a good deal

on the personal predilection of the judges

constituting the bench.

34. The inability of the Criminal Justice System to

deal with all major crimes equally effectively and

the want of uniformity in the sentencing process by

the Court lead to a marked imbalance in the end

results. On the one hand there appears a small band

of cases in which the murder convict is sent to the

gallows on confirmation of his death penalty by this

Court and on the other hand there is a much wider

area of cases in which the offender committing

murder of a similar or a far more revolting kind is

spared his life due to lack of consistency by the

Court in giving punishments or worse the offender

is allowed to slip away unpunished on account of

the deficiencies in the Criminal Justice System.

74

Thus the overall larger picture gets asymmetric and

lop-sided and presents a poor reflection of the

system of criminal administration of justice. This

situation is matter of concern for this Court and

needs to be remedied.

35. These are some of the larger issues that make us

feel reluctant in confirming the death sentence of

the appellant.

Equal protection clause ingrained under Article 14

applies to the judicial process at the sentencing

stage. We share the court’s unease and sense of

disquiet in Swamy Shraddananda case and agree

that a capital sentencing system which results in

differential treatment of similarly situated capital

convicts effectively classify similar convict

differently with respect to their right to life under

Article 21. Therefore, an equal protection analysis

of this problem is appropriate.

In the ultimate analysis, it serves as an alarm bell

because if capital sentences cannot be rationally

distinguished from a significant number of cases

where the result was a life sentence, it is more than

an acknowledgement of an imperfect sentencing

system. In a capital sentencing system if this

happens with some frequency there is a lurking

conclusion as regards the capital sentencing system

becoming constitutionally arbitrary.”

We have to be, thus, mindful that the true import of Rarest of rare

doctrine speaks of an extraordinary and exceptional case.

When the court is faced with a capital sentencing case, a comparative

analysis of the case before it with other purportedly similar cases would be

in the fitness of the scheme of the Constitution. Comparison will presuppose

75

an identification of a pool of equivalently circumstanced capital defendants.

The gravity, nature and motive relating to crime will play a role play a role

in this analysis.

Next step would be to deal with the subjectivity involved in capital

cases. The imprecision of the identification of aggravating and mitigating

circumstances has to be minimized. It is to be noted that the mandate of

equality clause applies to the sentencing process rather than the outcome.

The comparative review must be undertaken not to channel the sentencing

discretion available to the courts but to bring in consistency in identification

of various relevant circumstances.

The aggravating and mitigating circumstances have to be separately

identified under a rigorous measure. Bachan Singh (supra), when mandates

principled precedent based sentencing, compels careful scrutiny of

mitigating circumstances and aggravating circumstances and then factoring

in a process by which aggravating and mitigating circumstances appearing

from the pool of comparable cases can be compared.

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The weight which is accorded by the court to particular aggravating

and mitigating circumstances may vary from case to case in the name of

individualized sentencing, but at the same time reasons for apportionment of

weights shall be forthcoming. Such a comparison may point out

excessiveness as also will help repel arbitrariness objections in future.

A sentencing hearing, comparative review of cases and similarly

aggravating and mitigating circumstances analysis can only be given a go by

if the sentencing court opts for a life imprisonment.

3. THE “RAREST” OF “RARE CASES”

Bachan Singh (supra) laid down its fundamental threshold in the

following terms:

“A real and abiding concern for the dignity of

human life postulates resistance to taking a life

through law's instrumentality. That ought not to be

done save in the Rarest of rare cases when the

alternative option is unquestionably foreclosed.”

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To translate the principle in sentencing terms, firstly, it may be

necessary to establish general pool of rare capital cases. Once this general

pool is established, a smaller pool of rare cases may have to established to

compare and arrive at a finding of Rarest of rare case.

4. ARTICLE 21

Right to life, in its barest of connotation would imply right to mere

survival. In this form, right to life is the most fundamental of all rights.

Consequently a punishment which aims at taking away life is the gravest

punishment. Capital punishment imposes a limitation on the essential

content of the fundamental right to life, eliminating it irretrievably. We

realize the absolute nature of this right, in the sense that it is a source of all

other rights. Other rights may be limited, and may even be withdrawn and

then granted again, but their ultimate limit is to be found in the preservation

of the right to life. Right to life is the essential content of all rights under the

Constitution. If life is taken away all, other rights cease to exist. South

African constitutional court in S v. Makwanyane [1994 (3) SA 868 (A)]

captures the crux of right to life in following terms:

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“Prisoners are entitled to all their personal rights

and personal dignity not temporarily taken away by

law, or necessarily inconsistent with the

circumstances in which they had been placed.

A prisoner is not stripped naked, bound, gagged

and chained to his or her cell. The right of

association with other prisoners, the right to

exercise, to write and receive letters and the rights

of personality referred to by Innes J are of vital

importance to prisoners and highly valued by them

precisely because they are confined, have only

limited contact with the outside world, and are

subject to prison discipline. Imprisonment is a

severe punishment; but prisoners retain all the

rights to which every person is entitled under

Chapter 3 subject only to limitations imposed by

the prison regime that are justifiable under section

33. Of these, none are more important than the

section 11(2) right not to be subjected to "torture of

any kind . . . nor to cruel, inhuman or degrading

treatment or punishment".

There is a difference between encroaching upon

rights for the purpose of punishment and

destroying them altogether. It is that difference

with which we are concerned in the present case.”

This court has acknowledged Death Punishment to be the most

extraordinary penalty in various decisions. In Shankarlal Gyarasilal Dixit v.

State of Maharashtra [(1981)2SCC35] the court held:

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“Unfaithful husbands, unchaste wives and unruly

children are not for that reason to be sentenced to

death if they commit murders unconnected with the

state of their equation with their family and friends.

The passing of the sentence of death must elicit the

greatest concern and solicitude of the Judge because,

that is one sentence which cannot be recalled.”

Therefore, in the context of punishments, the protections emanating

from Article 14 and Article 21 have to be applied in the strictest possible

terms. At this juncture, it is best to point out that the ensuing discussion,

although applicable in constitutionality context, is carried out in the context

of sentencing of death punishment. In every capital sentence case, it must be

borne in mind that the threshold of rarest of rare cases is informed by

Article 14 and 21, owing to the inherent nature of death penalty. Post

Bachan Singh (supra), capital sentencing has come into the folds of

constitutional adjudication. This is by virtue of the safeguards entrenched in

Article 14 and 21 of our constitution.

Article 21 imposes two kinds of limitations, which overlap in their

reach, on punishments:

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4(A). Due process requirement

With non-capital punishments, a more severe punishment for one

offender than another is commonly accepted, even in similar circumstances.

The infinite gradations of guilt and the limits of human capacity to judge

cause us to overlook differential treatment of apparently similar convicts. As

the relative severity of punishment increases, how ever, it becomes more

difficult to overlook sentencing disparities. Death is the most severe of all

punishments.

The US Supreme Court has acknowledged that there is a profound and

immeasurable gap between a death sentence and a life sentence. In

Woodson, [428 U.S. at 305] the court held that there is a corresponding

difference in the need for reliability in the determination that death is the

appropriate punishment in a specific case. (see also Lockett, [438 U.S. at

604]) In Rummel v. Estelle, [445 U.S. 263, 272 (1980)], the Court noted that

challenges to the excessiveness of particular sentences have rarely been

successful in non-capital cases.

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Fairness to any capitally sentenced convict, therefore, requires an

assessment of the relative propriety of the sentence. Because of their

irrevocability and severity, the Constitution requires greater reliability and

fairness from sentencing courts for capital sentences than for non- capital

sentences.

4(B). Proportionality Requirement

The Canadian Charter of Rights makes provision for the limitation of

rights through a general clause. Section 1 of the Charter permits such

reasonable limitations on Charter rights "as can be demonstrably justified in

a free and democratic society". In R. v. Oakes, [1986] 1 S.C.R. 103 it was

held that in order to effect a limitation, there has to exist a sufficient

objective to warrant the limitation of the right in question. There should also

be proportionality between the limitation and such objective. In a frequently-

cited passage, Dickson, J. described the components of proportionality as

follows:

"There are, in my view, three important

components of a proportionality test. First, the

measures adopted must be carefully designed to

achieve the objective in question. They must not be

arbitrary, unfair or based on irrational

considerations. In short, they must be rationally

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connected to the objective. Secondly, the means,

even if rationally connected to the objective in the

first sense, should impair 'as little as possible' the

right or freedom in question: R v Big M Drug Mart

Limited (supra).

Thirdly, there must be a proportionality between the

effects of the measures which are responsible for

limiting the charter right of freedom, and the

objective which has been identified as of 'sufficient

importance'."

During the sentencing process, the sentencing court or the appellate

court for that matter, has to reach to a finding of a rational and objective

connection between capital punishment and the purpose for which it is

prescribed. In sentencing terms, “special reasons” as envisaged under section

354(3) Code of Criminal Procedure have to satisfy the comparative utility

which capital sentence would serve over life imprisonment in the particular

case. The question whether the punishment granted impairs the right to life

under Article 21 as little as possible.

R . v. Chaulk,[[1990] 3 S.C.R. 1303] suggested that the means must

impair the right "as little as is reasonably possible". The court held:

“Where choices have to be made between "differing

reasonable policy options", the courts will allow the

Government the deference due to legislators, but

"(will) not give them an unrestricted licence to

disregard an individual's Charter rights. Where the

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Government cannot show that it had a reasonable

basis for concluding that it has complied with the

requirement of minimal impairment in seeking to

attain its objectives, the legislation will be struck

down".”

The fact that capital sentence is a live penalty in India; we should

strive to tune the practice to the evolving standards of a maturing society.

The normative thresholds attached thereto and evolving constitutional

sensibilities shall continue to throw fresh challenges. We have not fully

resolved the dilemma arising from the fact that the Constitution prohibits

excessive punishment borne out of undue process, but also permits, and

contemplates that there will be capital punishment arising out of an exercise

of extremely wide discretion. This dilemma is inherently difficult to resolve.

And we should refrain from enforcing any artificial peace on this landscape.

While chosing for one option or the other, these constitutional

principles must be borne in mind. The nature of capital sentencing is such

that it is important that we ask the right questions. Tony Bottoms very aptly

puts this general sentencing dilemma, which become much more acute in

capital sentencing. He comments, that “justice” and punishment when

applied to sentencing are "asymmetrical concepts, in the sense that it is

reasonably easy to establish what is unjust or undeserved, but not what,

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precisely, is just or deserved." (See Anthony Bottoms, The Philosophy and

Politics of Punishment and Sentencing, in The Politics of Sentencing

Reform 20 (C.M.V. Clarkson & R. Morgan eds., 1995))

Principle of prudence, enunciated by Bachan Singh (supra) is sound

counsel on this count which shall stand us in good stead – whenever in the

given circumstances, there is difference of opinion with respect to any

sentencing prop/rationale, or subjectivity involved in the determining

factors, or lack of thoroughness in complying with the sentencing procedure,

it would be advisable to fall in favour of the “rule” of life imprisonment

rather than invoking the “exception” of death punishment.

SENTENCING IN THIS CASE – BACHAN SINGH TEST

Let us now examine the relevant factors relating to sentencing in this

case, keeping in mind the letter and spirit of the Bachan Singh (supra).

Kumar Gaurav (PW-1) has given the details of the incident. We have

already noted his statement before the court primarily on the deposition of

the said Approver, Kumar Gaurav, whereupon the prosecution relies to

establish that the accused deserves the harshest punishment.

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Accused No. 1 however has a different story to tell. As per him he

himself, Kumar Gaurav (PW-1) and Kartikraj (the deceased) had staged a

fake kidnapping to extract money from Kartikraj’s parents. It is evident from

his deposition that all persons involved were in the night of the incident

having a party at his flat situated in Amrapali Society. They were drunk.

They had watched movies all night on the VCR. They made a phone call at

the residence of the father of Kartikraj, demanding ransom. It was done only

on the suggestion of Kumar Gaurav (PW-1), the Approver. It was he who

had suggested that they could earn a good amount pretending to kidnap

someone amongst them. Kartikraj was chosen since his father was from a

wealthy family. It was Kartikraj himself who had dialed his father’s number

and handed over the phone to Kumar Gaurav (PW-1).

As per the appellant, they had continued the party even on the next

day. Since all the liquor had been consumed he himself and the deceased had

at about 4.00 p.m. gone out to purchase some more liquor. Thereafter he had

left the place to finish his work and when he came back, he found Kartikraj

lying in front of the toilet having sustained head injuries. We may notice his

statements from the judgment of the learned Sessions Judge in the following

terms:

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“Thereafter, as he had some work, he dropped

Kartikraj to that flat and went to finish his work.

Thereafter, when he came back to that flat, he saw

Kartikraj lying in front of the toilet sustaining head

injury. Approver – Kumar Gaurav and his two

friends found frightened and worried. Thereafter,

when he inquired with them as to what happened,

Kumar Gaurav told him that after Kartikraj

brought bottles of Rum, he drunk very fast and got

drink very heavily and while going to the toilet,

fell down etc. Thereafter, when he suggested to

take Kartikraj to a doctor, approver Kumar Gaurav

said that since he made ransom call, nobody would

believe them that Kartikraj fell unconscious

accidentally after drinking heavily. Thereafter,

approver Kumar Gaurav told him that in fact

Kartikraj is dead and he has confirmed by

checking his pulse. After hearing this, he got very

scared and told Kumar Gaurav that they must

inform police and now, the joke has gone too far.

But, Kumar Gaurav told that he has thought about

everything and asked him to dispose of the

motorcycle of Kartikraj. Accordingly, he left the

flat and under mental stress and fear, he wandered

here and there and finally abandoned the

motorcycle in wee hours of morning. Thereafter,

he did not go back to the flat of Amrapali Society.

On 9.8.2001 in the evening, he received phone call

of Kumar Gaurav (P.W.1) asking him to come to

Mumbai at Dadar immediately and threatened him

that if he did not go as per his directions to

Mumbai, he will inform his name to the police.

Therefore, he followed whatever was being told by

approver Kumar Gaurav. When he went to Pariera

Housing Society flat at Naigaon, Mumbai, he saw

Kumar Gaurav (P.W.1) and Accused Nos. 2 and 3

there. There he was told by Kumar Gaurav

(P.W.1) that he himself and his associates have

disposed of the dead body of Kartikraj and further

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told him that the father of Kartikraj is still ready to

pay ransom and that he would be sending the

amount to Mumbai and he (Kumar Gaurav P.W.1)

will collect the amount. Thereafter when Kumar

Gaurav (P.W.1) went to collect the amount of

ransom, he was asked by Kumar Gaurav (P.W.1)

to stand near Andheri Railway Station.

Accordingly, when he was standing near Andheri

Railway Station, police along with Kumar Gaurav

(P.W.1) came there and accosted him. Thus,

according to Accused No. 1 Santoshkumar

Bariyar, death of Kartikraj is accidental and his

dead body is disposed of by Kumar Gaurav

(P.W.1) and his friends. But, he does not know as

to how the dead body of Kartikraj was disposed

of.”

We may also notice the reasoning of the courts below in imposing

death sentences on the appellant. The learned Sessions Judge as regards the

appellant noted:

“…It is Santoshkumar Bariyar’s mastermind

which was responsible for the ultimate act of brutal

killing of Kartikraj and it is, [he] who directed the

accused Nos. 2 and 3, so also, Kumar Gaurav

(PW-1) to catch hold Kartikraj while strangulation

and further it is, [he] who directed Accused Nos. 2

and 3 and approver Kumar Gaurav (PW-1) to cut

the dead body of Kartikraj. Not only this, but it is,

[he] who acted nastly and inhumanly manner by

twisting right leg of Kartikraj when one of the

other accused could not cut in the right leg of

Kartikraj. Therefore, I am of the opinion that it

will not be possible to reform and rehabilitate the

accused No.1 by imposing [a] minimum sentence

of imprisonment for life. Hence, I hold that this is

a rarest of rare case.”

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The sentence was affirmed by the High Court stating:

“…Examined from all angles, we feel that PW 1

has established that the main architect of the

conspiracy is A1. It was hatched by all the accused

and carried out as per the directions of A1. A1

showed extreme depravity in cutting the dead body

and ensuring that it was disposed of. The lust for

money continued till the accused were arrested…”

However while imposing the sentence of imprisonment for life on

Sanjeeb Kumar Roy (A 2) and Santosh Kumar Roy (A 3) the learned

Sessions Judge noted:

“As far as the Accused Nos. 2 and 3 are concerned,

it is evident from the proven facts that they

accepted the plan of Accused No. 1 only for

monetary gain. The plan was possessed by accused

No. 1 only. The Accused Nos. 2 and 3 as well as

the approver Kumar Gaurav were motivated by

accused No.1 Santosh Kumar Bariyar and

therefore, they all hatched [a] criminal conspiracy.

Hence it cannot be disputed that the Accused Nos.

2 and 3 participated in the commission of [the]

crime at the behest of Accused No. 1 Santosh

Kumar Bariyar, which can be considered as a

mitigating circumstance. Considering this

mitigating circumstance and ages of Accused Nos.

2 and 3, in my view, it will be just and proper to

give them an opportunity to reform and rehabilitate

by imposing minimum sentence of life

imprisonment.”

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The High Court refused to interfere with the question of the sentence

on the said accused in the following words:

“…Though it is true that A2 and A3 have actively

participated in the crime, the brain behind it is A 1.

A2 and A3 have carried out dictates of A1. This is

a mitigating circumstance. Hence, we are not

inclined to enhance the sentence.”

The doctrine of proportionality, which appears to be the premise

whereupon the learned trial judge as also the High Court laid its foundation

for awarding death penalty on the appellant herein, provides for justifiable

reasoning for awarding death penalty.

However while imposing any sentence on the accused the court must

also keep in mind the doctrine of rehabilitation. This, considering Section

354(3) of the Code, is especially so in the cases where the court is to

determine whether the case at hand falls within the rarest of the rare case.

The reasons assigned by the courts below, in our opinion, do not

satisfy Bachan Singh Test. Section 354 (3) of the Code provides for an

exception. General rule of doctrine of proportionality, therefore, would not

apply. We must read the said provision in the light of Article 21 of the

Constitution of India.

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Law laid down by Bachan Singh (supra) and Machhi Singh (supra)

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

constitutional scheme.

Although the Constitutional Bench judgment of the Supreme Court in

Bachan Singh (supra) did not lay down any guidelines on determining which

cases fall within the ‘rarest of rare’ category, yet the mitigating

circumstances listed in and endorsed by the judgment gives reform and

rehabilitation great importance, even requiring the state to prove that this

would not be possible, as a precondition before the court awarded a death

sentence. We cannot therefore determine punishment on grounds of

proportionality alone. There is nothing before us that shows that the

appellant cannot reform and be rehabilitated.

In Dhananjoy Chatterjee v. State of W.B. [(1994) 4 SCC 220], this

Court has taken notice of the fact that shockingly large number of criminals

go unpunished thereby increasingly encouraging the criminals and in the

ultimate making justice suffer by weakening the system’s credibility.

Although the increasing number of cases which affect the society may hold

some value for the sentencing court, but it cannot give a complete go-by to

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the legal principle laid down by this court in Bachan Singh (supra) that each

case has to be considered on its own facts.

Mr. Adsure has placed strong reliance on a decision of this Court in

Mohan and Others v. State of T.N. [(1998) 5 SCC 336] to contend that the

manner in which the murder was committed itself point out that all the

accused deserved death penalty. In our opinion the facts of that case are

clearly distinguishable from the present one. That case involved the murder

of a minor. It clearly is not applicable to the present case. Moreover, the

court in that case too recognized that proper and due regard must be given to

the mitigating circumstances in every case.

Further indisputably, the manner and method of disposal of the dead

body of the deceased was abhorrent and goes a long way in making the

present case a most foul and despicable case of murder. However, we are of

the opinion, that the mere mode of disposal of a dead body may not by itself

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

for the purpose of imposition of the death sentence.

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It may have to be considered with several other factors. This Court

has dealt with the issue in Ravindra Trimbak Chouthmal v. State of

Maharashtra [(1996) 4 SCC 148]. In this case of dowry death, the head of

the deceased was severed and her body cut into nine pieces for disposal.

This court however expressed doubts over the efficacy of the deterrent effect

of capital punishment and commuted the death sentence to one of RI for life

imprisonment.

The issue of deterrence has also been discussed in the judgment of

Swamy Shraddananda – I (supra), thus:

“70. It is noteworthy to mention here the Law

Commission in its Report of 1967 took the view

that capital punishment acted as a deterrent to

crime. While it conceded that statistics did not

prove these so-called deterrent effects. It also said

that figures did not disprove them either.”

[Emphasis supplied]

Most research on this issue shows that the relationship between

deterrence and severity of punishment is complicated. It is not obvious how

deterrence relates to severity and certainty. Furthermore criminal policy

must be evidence-led rather than based on intuitions, which research around

the world has shown too often to be wrong. In the absence of any significant

empirical attention to this question by Indian criminologists, we cannot

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assume that severity of punishment correlates to deterrence to an extent

which justifies the restriction of the most fundamental human right through

the imposition of the death penalty. The goal of crime reduction can be

achieved by better police and prosecution service to the same or at least to a

great extent than by the imposition of the death penalty.

In this respect, we may furthermore add here that in the most recent

survey of research findings on the relation between the death penalty and

homicide rates, conducted for the United Nations in 1988 and updated in

2002, it was stated:

“… it is not prudent to accept the hypothesis that

capital punishment deters murder to a marginally

greater extent than does the threat and application

of the supposedly lesser punishment of life

imprisonment.”

[See Roger Hood, The Death Penalty: A World-

wide Perspective, Oxford, Clarendon Press, third

edition, 2002, p. 230]

[See also Kennedy v. Lousiana (128 S. Ct. 2641)]

MITIGATING CIRCUMSTANCES

Determination, as to what would be the rarest of rare cases, is a

difficult task having regard to different legal principles involved in respect

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thereof. With the aforementioned backdrop, we may notice the

circumstances which, in our opinion, should weigh with us for not imposing

the extreme penalty.

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 (supra), this Court did

not lay down a firm law that in a case involving circumstantial evidence,

imposition of death penalty not would 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 contra-distinguished

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

where sentence of death is to be imposed on the basis of the circumstantial

evidence, the circumstantial evidence must be such which leads to an

exceptional case. We must, however, add that in a case of this nature where

the entire prosecution case revolves round the statement of an approver or

dependant upon the circumstantial evidence, the prudence doctrine should be

invoked. For the aforementioned purpose, at the stage of sentencing

evaluation of evidence would not be permissible, the courts not only have to

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solely depend upon the findings arrived at for the purpose of recording a

judgment of conviction, but also consider the matter keeping in view of

evidences which have been brought on record on behalf of the parties and in

particular the accused for imposition of a lesser punishment. A statement of

approver in regard to the manner in which crime has been committed vis-à-

vis the role played by the accused, on the one hand, and that of the approver,

on the other, must be tested on the touchstone of the prudence doctrine

The accused persons were not criminals. They were friends. The

deceased was said to have been selected because his father was rich. The

motive, if any, was to collect some money. They were not professional

killers. They have no criminal history. All were unemployed and were

searching for jobs.

Further if age of the accused was a relevant factor for the High Court

for not imposing death penalty on accused No. 2 and 3, the same standard

should have been applied to the case of the appellant also who was only two

years older and still a young man in age. Accused Nos. 2 and 3 were as

much a part of the crime as the appellant. Though it is true, that it was he

who allegedly proposed the idea of kidnapping, but at the same time it must

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not be forgotten that the said plan was only executed when all the persons

involved gave their consent thereto.

It must be noted that the discretion given to the court in such cases

assumes onerous importance and its exercise becomes extremely difficult

because of the irrevocable character of death penalty. One of the principles

which we think is clear is that the case is such where two views ordinarily

could be taken, imposition of death sentence would not be appropriate, but

where there is no other option and it is shown that reformation is not

possible, death sentence may be imposed.

Section 354(3) of the Code of Criminal Procedure requires that when

the conviction is for an offence punishable with death or in the alternative

with imprisonment for life or imprisonment for a term of years, the judgment

shall state the reasons for the sentence awarded, and in the case of sentence

of death, the special reasons thereof.

We do not think that the reasons assigned by the courts below

disclose any special reason to uphold the death penalty. The discretion

granted to the courts must be exercised very cautiously especially because of

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the irrevocable character to death penalty. Requirements of law to assign

special reasons should not be construed to be an empty formality.

We have previously noted that the judicial principles for imposition of

death penalty are far from being uniform. Without going into the merits and

demerits of such discretion and subjectivity, we must nevertheless reiterate

the basic principle, stated repeatedly by this Court, that life imprisonment is

the rule and death penalty an exception. Each case must therefore be

analyzed and the appropriateness of punishment determined on a case-by-

case basis with death sentence not to be awarded save in the ‘rarest of rare’

case where reform is not possible. Keeping in mind at least this principle we

do not think that any of the factors in the present case discussed above

warrants the award of the death penalty. There are no special reasons to

record the death penalty and the mitigating factors in the present case,

discussed previously, are, in our opinion, sufficient to place it out of the

“rarest of rare” category.

For the reasons aforementioned, we are of the opinion that this is not a

case where death penalty should be imposed. The appellant, therefore,

instead of being awarded death penalty, is sentenced to undergo rigorous

imprisonment for life. Subject to the modification in the sentence of

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appellant (A1) mentioned hereinbefore, both the appeals of the appellant as

also that of the State are dismissed.

………………………….J.

[S.B. Sinha]

..…………………………J.

[Cyriac Joseph]

New Delhi;

May 13, 2009

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