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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.410-411 OF 2012

SANTOSH KUMAR SINGH … APPELLANT

VERSUS

STATE OF MADHYA PRADESH … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

These appeals are directed against the common impugned

judgment dated 24

th

March, 2011 passed by the High Court of

Madhya Pradesh, Principal Seat at Jabalpur, by which High

Court upheld the judgment of conviction and sentence for the

offences u/s 302, 307, 394, 397 and 450 IPC, as follows:

Section Sentence imposed

For offence under Section 302

IPC (on two counts);

Sentenced to death.

For offence under Section 307

IPC (on two counts);

Sentence for life on each

count with fine of Rs.10,000/-

each on failure of payment RI

for two years each.

For offence under Section 394

read with Section 397 (on four

counts);

RI for ten years on each count

with fine of Rs.5,000/- each

on failure of payment further

RI for one year each.

For offence under Section 450

IPC.

RI for ten years with fine of

Rs.5,000/-. On failure of

payment, further RI for one

year.

2. The learned counsel for the appellant assailed the

conviction, inter alia, on the following grounds:

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(a)The trial was not fair as the appellant was not

given an opportunity to defend by the counsel of his

choice.

(b)The Trial Court gravely erred in placing

implicit reliance on the statement of Razia Khatoon

(PW-4) and Zeenat Parveen (PW-3) and on the evidence

of recovery of the ornaments and other articles from

the possession of the appellant.

(c)The death sentence awarded by the Trial Court

as confirmed by the High Court is not justified, as

no case of rarest of the rare is made out.

3. The case of the prosecution is that the accused-Santosh

Kumar Singh was known to the family of Gulam Mohd. including

his wife, Noorjahan, son Javed Akhtar, and daughters viz. Rozi

@ Razia and Zeenat Parveen. On 7

th

May, 2010, accused came to

their house in Sector No.12, Quarter No.B-664, N.C.L. Colony,

Singrauli at about 2 p.m. He had a chat with Noorjahan Begum

(deceased) for about 30 minutes. In the same room besides her

Rozi @ Razia Khatoon(PW-4) and Zeenat Parveen (PW-3) were also

present. Javed Akhtar (deceased), son of Noorjahan Begum was

sleeping in the bedroom. After accused left, Noorjahan Begum

(deceased) started offering Namaz, Rozi @ Razia went to

bathroom to take bath and Zeenat Parveen was sitting in the

outside room. After sometime, accused came back and knocked

the door; Zeenat Parveen opened the door and the accused came

inside. At that time Rozi @ Razia came out of the bathroom and

saw accused talking to Zeenat in the outside room, at that

moment, the accused suddenly pulled out an iron hammer from

his T-shirt and hit on the head of Zeenat Parween two-

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three times with hammer. Zeenat Parveen screamed and became

unconscious. The accused, thereafter, with intention to kill

Noorjahan Begum and Javed Akhtar also hit them with hammer on

their heads, because of which both fell down and became

unconscious. After that accused hit Rozi @ Razia by the hammer

on her head with an intention to kill her resultantly Razia ’s

head got fractured. Thereafter, the accused opened the

almirah, suitcases and boxes and looted two gold chains, one

pair of tops, one pair of bali, one pair of jhala, three

rings, one nose pin and four pairs of silver anklets,

artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan

Begum. He also took out four brass bangles from the hands of

Noorjahan Begum. As a result of assault Noorjahan Begum died

on the spot. On hearing shrieks of Rozi @ Razia, Ramesh

Satnami (PW-1), Ramawadh Pal (PW-5) and other people of the

colony came. At the time of incident, Gulam Mohd. (PW-2) was

on duty and on receiving the news he came to the place of

incident and took Rozi @ Razia, Zeenat Parveen and Javed

Akhtar to Nehru Hospital.

4. On the basis of the report, Ext.P-10, of Rozi @ Razia

Khatoon(PW-4), a case Crime No.0/10 was registered under

Section 302, 307, 450, 394 & 397 IPC at the Police Station

Vindhya Nagar. After receiving the news of the death of

Noorjahan and Javed Akhtar, Shiv Kumar Dubey (PW-13) recorded

the marg intimation of Ext.P-24 & 25 in Police Chauki Jayant,

P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent

to the concerned Police Station, on the basis of which Crime

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No.Ka-0-304/10 was registered at P.S. Baidhan and

investigation was started.

5. Sub-Inspector, J.S. Paraste (PW-12), on the same day,

went at the spot and prepared the inquest memo of the body of

Noorjahan Begum (Ext.P/12).The dead body of Noorjahan Begum

was sent for postmortem examination. After conducting inquest

proceedings in respect of the dead body of Javed Akhtar, the

same was also sent for postmortem examination. Dr. Vinod

Sharma(PW.16) examined the injuries of Razia Khatoon and

Zeenat Parveen and found injuries on their heads. The

injuries, grievous in nature, were dangerous to life.

6. Dr. V.N. Satnami (PW-10) conducted autopsy of the body of

Noorjahan Begum. He found three injuries on her skull, skull

bones were fractured. He submitted his postmortem report-

Ext.P/19. In his opinion, death of the deceased was homicidal

in nature. Dr. V.N. Satnami (PW-10) also conducted autopsy of

body of Javed Akhtar and found two injuries on his head. There

was depressed fracture of skull bone underneath the injuries.

In his opinion, death of the deceased was homicidal in nature.

Postmortem report of Javed Akhtar is Ext.P/20.

7. Anil Upadhyay (PW-11) was the Investigation Officer, who

on the same night apprehended the accused from Khariya Chowk

and recovered Rs.23,020/- from the pocket of his pants. On the

information given by the appellant under Section 27 of the

Indian Evidence Act, he recovered stolen articles, iron hammer

and blood stained clothes from the house of the accused

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situated in N.C.L. Colony. The recovered articles were

identified by Gulam Mohd (PW.2) and Razia Khatoon (PW-4).

8. After due investigation, the chargesheet was filed and

the case was committed for trial. The appellant denied the

guilt and pleaded false implication but he did not adduce any

evidence in his defence.

9. Prosecution examined altogether 16 witnesses and produced

a number of documentary evidence to prove their case. The

Trial court on the appreciation of the evidence held the

accused guilty and convicted and sentenced him for the offence

as mentioned above, which was affirmed by the High Court.

10. Dr. V.N. Satnami (PW-10), who performed the postmortem

examination of the body of Noorjahan Begum found the following

injuries on her body:

“(1)Reddish contusion 5 cm x 4 cm present

on right side of forehead. Red blood clot

was deposited under the skin.

(2)Lacerated wound 5 cm x 3 cm x bone deep

on middle of the forehead posteriorly with

depressed multiple fractures of underlying

bone.

(3) Lacerated wound 4 cm x 3 cm x bone

deep on left occipito parietal region of

head with depressed multiple fractures of

underlying bones.

In his opinion, death of deceased

Noorjahan had occurred as a result of coma

due to head injury. Death was homicidal in

nature. The postmortem examination report

(P/19) was written and signed by him. ”

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On the same day, Dr. Satnami (PW-10) performed postmortem

examination of the body of deceased Javed Akhtar and found the

following injuries:

“(1) Lacerated wound on left parietal

region of head 2 cm x 1 cm x bone deep

with peripheral contusions in size of 6 cm

x 5 cm. subcutaneous reddish blood clot

with multiple depressed fractures of

underlying bone.

(2) Reddish contusion on occipital region

of head 5 cm x 4 cm in size with

subcutaneous reddish blood clot with

depressed fracture of underlying bone.

In his opinion, death of Javed Akhtar had

occurred as a result of coma due to

injury. Death was homicidal in nature. ”

11.From the inquest memorandums (Ext.P/6 and P/12) and the

evidence of Sub-Inspector, J.S. Paraste (PW-12) and constable

Raj Bahadur Pandey (PW-15), who conducted inquest, it was

established that Noorjahan and Javed Akhtar died of homicidal

injuries found on their bodies.

12.Anil Upadhyay (PW-11), Investigation Officer arrested the

accused from Khariya Chowk, Main Road, P.S. Shakti Nagar in

the presence of witnesses Mohd.Sadiq (PW-6) and Mohd. Yunus

(PW-7) and seized money from him and prepared seizure memo-

Ext.P-15. After arrest the accused was brought to the Police

Station-Jayant and was interrogated in front of the witnesses.

During interrogation accused gave information regarding

jewellery and the hammer which was used in committing crime;

the clothes, hammer and jewellery were seized from the house

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of the accused vide memorandum-Ext.P-13, written by Anil

Upadhyay (PW-11). Anil Upadhyay stated that he went to the

house of accused and seized the jewellery article from

articles-A1 to A 24; seizure memo-Ext.P-14 was prepared. He

had also stated that blood stained clothes and iron hammer

were seized in the presence of witnesses vide seizure memo-

Ext.P-16.

13.Mohd. Sadiq (PW.6) and Mohd. Yunus (PW-7) are the

independent witnesses of the memorandum of seizure. In their

statement they deposed that the Police arrested the accused at

Khariya Chowk in their presence and seized about Rs. 23,000/-

from him and the accused was brought to the Police Station-

Jayant for inquiry. At the Police Station the accused

disclosed about the jewellery, hammer and clothes, on the

basis of which jewellery, hammer and clothes were seized. Both

the witnesses thereby have corroborated the statement of Anil

Upadhyay(PW-11). During the cross-examination both the

witnesses, PW-6 and PW-7 admitted that they visited the house

of Gulam Mohd. There is no infirmity or contradiction in the

statements of the two witnesses.

14.Mohd. Ayaz Khan (PW-9) stated that on 8

th

July, 2010 at

the request of the Police he conducted identification of the

jewellery at stadium Baidhan and prior to the identification

Police had handed over other jewellery in a sealed packet. He

mixed it and then conducted the identification and during the

identification Gulam Mohd. and Razia had identified the

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original jewellery. After identification he had handed over

the jewellery in a packet to the Police who were standing

outside the stadium.

15.Zeenat Parween(PW-3) and Razia Khatoon (PW-4), daughters

of deceased Noorjahan and sisters of deceased Javed Akhtar are

the injured eyewitnesses; both of them received serious

injuries at the incident. Both the witness PW-3 and PW-4

clearly stated that sometime before the incident, the accused

had come to their house and he being a prior acquaintance, the

accused had taken refreshment sitting with their mother and

also was talking with her. From the statements of both the

witnesses the facts of the accused coming to their house

before the incident, taking refreshment with deceased

Noorjahan and talking with her are proved, which is also

corroborated from the FIR-Ext.P-10. Both these witnesses have

also stated that in the past the accused used to come for

tuitions and their mother used to treat the accused like her

son and the photograph of the accused was also hanging in

their house. From the aforesaid evidence, it is clear that the

PW-3 and PW-4 were in a position to identify the accused, the

accused was well acquainted with both PW-3 and PW-4 since

long. The prosecution proved beyond reasonable doubt that even

prior to the incident the accused was known to the deceased

and the injured witnesses PW-3 and PW-4 and on the date of

incident also, the accused had come to their house and had

taken refreshments and had talks.

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16.Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) in their

statements clearly stated that initially the accused left

their house and after sometime the accused had come again to

their house. On opening the door he had hit the hammer on the

head of Javed Akhtar, who had come out after hearing screams

of Zeenat Parveen and then after entering into the bedroom he

hit deceased Noorjahan on her head. From the statement of

Razia Khatoon (PW-4), it is also clear that the accused after

entering the store-room had hit on her head and then the

accused had taken out the money and jewellery from the

almirah, suitcase, box and attach é, etc. In paragraph 7 Zeenat

Parveen (PW-3), has also stated that she had seen the accused

hit Javed Akhtar on his head but she could not see as to who

hit Razia and her mother. Such statement cannot be stated to

be contradiction and does not adversely affect the case of the

prosecution in view of the deposition made by Razia

Khatoon(PW-4).

17.Similarly, from the statement of Razia Khatoon (PW-4),

we find that the accused after hitting Zeenat Parveen, Javed

Akhtar and Noorjahan took away jewellery, cash amount and the

bangles of Noorjahan and then he ran away after bolting the

door from outside.

18. PW-4 further deposed that after the accused run away by

bolting the door from outside she went into the balcony and

stop Satnami (PW-1), who at that time had taken out his

vehicle and was going somewhere. Then, the door was got open.

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Statements of Razia Khatoon (PW-4) about shouting from the

balcony stopping Satnami (PW-1) and then opening of the door

by Satnami are also proved by the statement of Ramesh Satnami

(PW-1), who made similar statement.

19.In view of the statements made by the injured witnesses

Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) as corroborated

by the postmortem report, seizure of jewellery, hammer, blood

stained clothes (Ex.P-13)and statement of Anil Upadhyay (PW-

11), as corroborated by Sadiq (PW-6) and Yunus (PW-7), the

Trial Court rightly held the accused guilty for the offences

u/s 302, 307, 394 r/w 397 and 450 IPC.

20.First ground taken by the learned counsel for the

appellant with respect to denial of opportunity to the accused

to be defended by a counsel of his choice is incorrect as from

the record we find that proper opportunity was given to the

accused.

21.The order sheets of the Trial Court dated 25

th

September,

2010 shows that the appellant made an application that

appellant wanted to get the witnesses cross-examined by senior

Advocate, Mr. Rajendra Singh Chauhan, therefore, he requested

to defer the cross-examination of the witnesses. The Trial

court rejected the application. On 27

th

September, 2010,

counsel of the accused, Mr. Amrendra Singh, who was defending

the accused, refused to defend him. The Trial Court then

appointed one Mr. G.P. Dwivedi, Advocate, as defence counsel

on State expenses.

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22.On perusal of records it transpires that Shri Amrendra

Singh, Advocate had filed his Vakalatnama for representing the

appellant. On 25

th

September, 2010, when the case was fixed for

evidence though he was competent to cross-examine the

witnesses but he moved the application to defer the cross-

examination of the witnesses on the ground that the accused

wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan.

However, neither Rajendra Singh Chauhan was present nor any

Vakalatnama was filed on his behalf. On that day, two

witnesses, namely Ramesh Satnami (PW-1) and Gulam Mohd. (PW-2)

were examined and Mr. Amrendra Singh, Advocate had cross-

examined those witnesses. None of those witnesses were

eyewitnesses; in fact one of them, Ramesh Satnami (PW-1) was

declared hostile. On 27

th

September, 2010, Mr. Amrendra Singh

refused to appear on behalf of the appellant, when the

appellant on asking expressed his inability to appoint any

counsel. Since there was none to represent the accused, the

Trial Court appointed Mr. G.P. Dwivedi, Advocate, to pursue

the appeal. The appellant has failed to show that Mr. G.P.

Dwivedi was not competent or was incapable of handling the

case. On the contrary from the cross-examination of the

witnesses made by Mr. G.P. Dwivedi we find that he was

competent to deal with the case. Even on the next date

neither Mr. Rajendra Singh Chauhan, Advocate appeared nor he

filed his Vakalatnama.

23.The next question is whether death sentence awarded to

the appellant is excessive, disproportionate on the facts and

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circumstance of the case, i.e. whether the present case can be

termed to be a rarest of the rare case.

24.Guidelines emerged from Bachan Singh vs. State of Punjab,

1980 (2) SCC 684 were noticed by this Court in Machhi Singh

and others vs. State of Punjab, 1983 (3) SCC 470. In the said

case the Court observed:

38. In this background the guidelines

indicated in Bachan Singh case , 1980 (2)

SCC 684 will have to be culled out and

applied to the facts of each individual

case where the question of imposing of

death sentence arises. The following

propositions emerge from Bachan Singh

case(supra):

“(i) The extreme penalty of death need

not be inflicted except in gravest cases

of extreme culpability.

(ii) Before opting for the death penalty

the circumstances of the ‘offender’ also

require to be taken into consideration

along with the circumstances of the

‘crime’.

(iii) Life imprisonment is the rule and

death sentence is an exception. In other

words death sentence must be imposed only

when life imprisonment appears to be an

altogether inadequate punishment having

regard to the relevant circumstances of

the crime, and provided, and only

provided, the option to impose sentence of

imprisonment for life cannot be

conscientiously exercised having regard to

the nature and circumstances of the crime

and all the relevant circumstances.

(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.

39. In order to apply these guidelines

inter alia the following questions may be

asked and answered:

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(a) Is there something uncommon about

the crime which renders sentence of

imprisonment for life inadequate and calls

for a death sentence?

(b) Are the circumstances of the crime

such that there is no alternative but to

impose death sentence even after according

maximum weightage to the mitigating

circumstances which speak in favour of the

offender?

40. If upon taking an overall global

view of all the circumstances in the light

of the aforesaid proposition and taking

into account the answers to the questions

posed hereinabove, the circumstances of

the case are such that death sentence is

warranted, the court would proceed to do

so.”

25.In Ronny alias Ronald James Alwaris and others vs. State

of Maharashtra, 1998 (3) SCC 625, this Court held:

“45. These principles have been applied

in various judgments of this Court

thereafter and it is unnecessary to

multiply the cases here. Whether the case

is one of the rarest of the rare cases is

a question which has to be determined on

the facts of each case. Suffice it to

mention that the choice of the death

sentence has to be made only in the rarest

of the rare cases and that where

culpability of the accused has assumed

depravity or where the accused is found to

be an ardent criminal and menace to the

society and; where the crime is committed

in an organised manner and is gruesome,

cold-blooded, heinous and atrocious; where

innocent and unarmed persons are attacked

and murdered without any provocation, the

case would present special reason for

purposes of sub-section (3) of Section 354

of the Criminal Procedure Code. ”

In Rony alias Ronald James Alwaris (supra) this Court

noted the law laid-down by this Court in Allauddin Mian & Ors.

Vs. State of Bihar, (1989) 3 SCC 5, that unless the nature of

the crime and circumstances of the offender reveal that

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criminal is a menace to the society and the sentence of life

imprisonment would be altogether inadequate, the Court should

ordinarily pass a lesser punishment and not punishment of

death which should be reserved for exceptional case only.

Considering the cumulative effect of all the factors, like the

offences committed under the influence of extreme mental or

emotional disturbance, the young age of the accused, the

possibility of reform and rehabilitation, etc. the Court may

convert the sentence into life imprisonment.

26.In State of Maharashtra vs. Goraksha Ambaji Adsul, 2011

(7) SCC 437, this Court made the following observation:

“30. The principles governing the sentencing

policy in our criminal jurisprudence have more

or less been consistent, right from the

pronouncement of the Constitution Bench

judgment of this Court in Bachan Singh v. State

of Punjab,(2010) 8 SCC 775 . Awarding punishment

is certainly an onerous function in the

dispensation of criminal justice. The court is

expected to keep in mind the facts and

circumstances of a case, the principles of law

governing award of sentence, the legislative

intent of special or general statute raised in

the case and the impact of awarding punishment.

These are the nuances which need to be examined

by the court with discernment and in depth.

31. The legislative intent behind enacting

Section 354(3) CrPC clearly demonstrates the

concern of the legislature for taking away a

human life and imposing death penalty upon the

accused. Concern for the dignity of the human

life postulates resistance to taking a life

through law’s instrumentalities and that ought

not to be done, save in the rarest of rare

cases, unless the alternative option is

unquestionably foreclosed. In exercise of its

discretion, the court would also take into

consideration the mitigating circumstances and

their resultant effects.

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32. The language of Section 354(3)

demonstrates the legislative concern and the

conditions which need to be satisfied prior to

imposition of death penalty. The words, “ in the

case of sentence of death, the special reasons

for such sentence ” unambiguously demonstrate

the command of the legislature that such

reasons have to be recorded for imposing the

punishment of death sentence. This is how the

concept of the rarest of rare cases has emerged

in law. Viewed from that angle, both the

legislative provisions and judicial

pronouncements are at ad idem in law. The death

penalty should be imposed in the rarest of rare

cases and that too for special reasons to be

recorded. To put it simply, a death sentence is

not a rule but an exception. Even the exception

must satisfy the prerequisites contemplated

under Section 354(3) CrPC in light of the

dictum of the Court in Bachan Singh(supra).

33. The Constitution Bench judgment of this

Court in Bachan Singh (supra) has been

summarised in para 38 in Machhi Singh v. State

of Punjab, (1998) 1 SCC 149, and the following

guidelines have been stated while considering

the possibility of awarding sentence of death:

(Machhi Singh case(supra) , SCC p. 489)

“(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the ‘ offender’ also requires

to be taken into consideration along with the

circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death

sentence is an exception. … death sentence must

be imposed only when life imprisonment appears

to be an altogether inadequate punishment

having regard to the relevant circumstances of

the crime, and provided, and only provided the

option to impose sentence of imprisonment for

life cannot be conscientiously exercised having

regard to the nature and circumstances of the

crime and all the relevant circumstances.

(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.”

(emphasis supplied)

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34. The judgment in Bachan Sing(supra) , did

not only state the above guidelines in some

elaboration, but also specified the mitigating

circumstances which could be considered by the

Court while determining such serious issues and

they are as follows: (SCC p. 750, para 206)

“206. … ‘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 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

said defect impaired his capacity to appreciate

the criminality of his conduct.’”

35. Now, we may examine certain illustrations

arising from the judicial pronouncements of

this Court.

36. In D.K. Basu v. State of W.B.,(2002) 1

SCC 351, this Court took the view that

custodial torture and consequential death in

custody was an offence which fell in the

category of the rarest of rare cases. While

specifying the reasons in support of such

decision, the Court awarded death penalty in

that case.

37. In Santosh Kumar Satishbhushan Bariyar v.

State of Maharashtra, (1972) 2 SCC 640, this

Court also spelt out in paras 56 to 58 that

nature, motive, impact of a crime, culpability,

quality of evidence, socio-economic

circumstances, impossibility of rehabilitation

are the factors which the court may take into

Page 17 17

consideration while dealing with such cases. In

that case the friends of the victim had called

him to see a movie and after seeing the movie,

a ransom call was made, but with the fear of

being caught, they murdered the victim. The

Court felt that there was no evidence to show

that the criminals were incapable of reforming

themselves, that it was not a rarest of the

rare case, and therefore, declined to award

death sentence to the accused.

38. Interpersonal circumstances prevailing

between the deceased and the accused was also

held to be a relevant consideration in Vashram

Narshibhai Rajpara v. State of Gujarat, (1996)

8 SCC 167, where constant nagging by family

was treated as the mitigating factor, if the

accused is mentally unbalanced and as a result

murders the family members. Similarly, the

intensity of bitterness which prevailed and the

escalation of simmering thoughts into a thirst

for revenge and retaliation were also

considered to be a relevant factor by this

Court in different cases.

39. This Court in Satishbhushan Bariya

(supra) also considered various doctrines,

principles and factors which would be

considered by the Courts while dealing with

such cases. The Court discussed in some

elaboration the applicability of the doctrine

of rehabilitation and the doctrine of prudence.

While considering the application of the

doctrine of rehabilitation and the extent of

weightage to be given to the mitigating

circumstances, it noticed the nature of the

evidence and the background of the accused. The

conviction in that case was entirely based upon

the statement of the approver and was a case

purely of circumstantial evidence. Thus,

applying the doctrine of prudence, it noticed

the fact that the accused were unemployed,

young men in search of job and they were not

criminals. In execution of a plan proposed by

the appellant and accepted by others, they

kidnapped a friend of theirs. The kidnapping

was done with the motive of procuring ransom

from his family but later they murdered him

because of the fear of getting caught, and

later cut the body into pieces and disposed it

off at different places. One of the accused had

turned approver and as already noticed, the

conviction was primarily based upon the

statement of the approver.”

Page 18 18

“41. The above principle, as supported by

case illustrations, clearly depicts the various

precepts which would govern the exercise of

judicial discretion by the courts within the

parameters spelt out under Section 354(3) CrPC.

Awarding of death sentence amounts to taking

away the life of an individual, which is the

most valuable right available, whether viewed

from the constitutional point of view or from

the human rights point of view. The condition

of providing special reasons for awarding death

penalty is not to be construed linguistically

but it is to satisfy the basic features of a

reasoning supporting and making award of death

penalty unquestionable. The circumstances and

the manner of committing the crime should be

such that it pricks the judicial conscience of

the court to the extent that the only and

inevitable conclusion should be awarding of

death penalty.”

27. This Court in Ramnaresh and others vs. State of

Chattisgarh, 2012 (4) SCC 257, noticed the aggravating and

mitigating circumstances with respect to a crime and held as

follows:

“76. The law enunciated by this Court in

its recent judgments, as already noticed,

adds and elaborates the principles that

were stated in Bachan Singh,(1980) 2 SCC

684, and thereafter, in Machhi Singh,

(1983) 3 SCC 470. The aforesaid judgments,

primarily dissect these principles into

two different compartments—one being the

“aggravating circumstances” while the

other being the “mitigating

circumstances”. The court would consider

the cumulative effect of both these

aspects and normally, it may not be very

appropriate for the court to decide the

most significant aspect of sentencing

policy with reference to one of the

classes under any of the following heads

while completely ignoring other classes

under other heads. To balance the two is

the primary duty of the court. It will be

appropriate for the court to come to a

final conclusion upon balancing the

exercise that would help to administer the

criminal justice system better and provide

Page 19 19

an effective and meaningful reasoning by

the court as contemplated under Section

354(3) CrPC.

Aggravating circumstances

(1) The offences relating to the

commission of heinous crimes like murder,

rape, armed dacoity, kidnapping, etc. by

the accused with a prior record of

conviction for capital felony or offences

committed by the person having a

substantial history of serious assaults

and criminal convictions.

(2) The offence was committed while the

offender was engaged in the commission of

another serious offence.

(3) The offence was committed with the

intention to create a fear psychosis in

the public at large and was committed in a

public place by a weapon or device which

clearly could be hazardous to the life of

more than one person.

(4) The offence of murder was committed

for ransom or like offences to receive

money or monetary benefits.

(5) Hired killings.

(6) The offence was committed

outrageously for want only while involving

inhumane treatment and torture to the

victim.

(7) The offence was committed by a

person while in lawful custody.

(8) The murder or the offence was

committed to prevent a person lawfully

carrying out his duty like arrest or

custody in a place of lawful confinement

of himself or another. For instance,

murder is of a person who had acted in

lawful discharge of his duty under Section

43 CrPC.

(9) When the crime is enormous in

proportion like making an attempt of

murder of the entire family or members of

a particular community.

(10) When the victim is innocent,

helpless or a person relies upon the trust

of relationship and social norms, like a

child, helpless woman, a daughter or a

niece staying with a father/uncle and is

inflicted with the crime by such a trusted

person.

(11) When murder is committed for a

motive which evidences total depravity and

meanness.

Page 20 20

(12) When there is a cold-blooded murder

without provocation.

(13) The crime is committed so brutally

that it pricks or shocks not only the

judicial conscience but even the

conscience of the society.

Mitigating circumstances

(1) The manner and circumstances in and

under which the offence was committed, for

example, extreme mental or emotional

disturbance or extreme provocation in

contradistinction to all these situations

in normal course.

(2) The age of the accused is a relevant

consideration but not a determinative

factor by itself.

(3) The chances of the accused of not

indulging in commission of the crime again

and the probability of the accused being

reformed and rehabilitated.

(4) The condition of the accused shows

that he was mentally defective and the

defect impaired his capacity to appreciate

the circumstances of his criminal conduct.

(5) The circumstances which, in normal

course of life, would render such a

behaviour possible and could have the

effect of giving rise to mental imbalance

in that given situation like persistent

harassment or, in fact, leading to such a

peak of human behaviour that, in the facts

and circumstances of the case, the accused

believed that he was morally justified in

committing the offence.

(6) Where the court upon proper

appreciation of evidence is of the view

that the crime was not committed in a

preordained manner and that the death

resulted in the course of commission of

another crime and that there was a

possibility of it being construed as

consequences to the commission of the

primary crime.

(7) Where it is absolutely unsafe to

rely upon the testimony of a sole

eyewitness though the prosecution has

brought home the guilt of the accused.

Page 21 21

While determining the questions relating to sentencing

policy, the Court laid down the Principles at paragraph 77

which reads as follows:

“77. While determining the questions

relatable to sentencing policy, the court

has to follow certain principles and those

principles are the loadstar besides the

above considerations in imposition or

otherwise of the death sentence.

Principles

(1) The court has to apply the test to

determine, if it was the “rarest of rare”

case for imposition of a death sentence.

(2) In the opinion of the court,

imposition of any other punishment i.e.

life imprisonment would be completely

inadequate and would not meet the ends of

justice.

(3) Life imprisonment is the rule and

death sentence is an exception.

(4) The option to impose sentence of

imprisonment for life cannot be cautiously

exercised having regard to the nature and

circumstances of the crime and all

relevant considerations.

(5) The method (planned or otherwise)

and the manner (extent of brutality and

inhumanity, etc.) in which the crime was

committed and the circumstances leading to

commission of such heinous crime.”

28.Recently, this Court in Shankar Kisanrao Khade vs. State

of Maharashtra, 2013 (5) SCC 546, dealing with a case of death

sentence, observed:

“52. Aggravating circumstances as

pointed out above, of course, are not

exhaustive so also the mitigating

circumstances. In my considered view, the

tests that we have to apply, while

awarding death sentence are “crime test”,

“criminal test” and the “R-R test” and not

the “balancing test”. To award death

sentence, the “crime test” has to be fully

satisfied, that is, 100% and “criminal

test” 0%, that is, no mitigating

circumstance favouring the accused. If

Page 22 22

there is any circumstance favouring the

accused, like lack of intention to commit

the crime, possibility of reformation,

young age of the accused, not a menace to

the society, no previous track record,

etc. the “criminal test” may favour the

accused to avoid the capital punishment.

Even if both the tests are satisfied, that

is, the aggravating circumstances to the

fullest extent and no mitigating

circumstances favouring the accused, still

we have to apply finally the rarest of the

rare case test (R-R test). R-R test

depends upon the perception of the society

that is “society-centric” and not “Judge-

centric”, that is, whether the society

will approve the awarding of death

sentence to certain types of crimes or

not. While applying that test, the court

has to look into variety of factors like

society’s abhorrence, extreme indignation

and antipathy to certain types of crimes

like sexual assault and murder of

intellectually challenged minor girls,

suffering from physical disability, old

and infirm women with those disabilities,

etc. Examples are only illustrative and

not exhaustive. The courts award death

sentence since situation demands so, due

to constitutional compulsion, reflected by

the will of the people and not the will of

the Judges.”

29.In the present case the appellant is an educated person,

he was about 26 years old at the time of committing the

offence. The accused was a tutor in the family of the

deceased-Noorjahan. He was in acquaintance with the deceased

as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4).

There is nothing specific to suggest the motive for committing

the crime except the articles and cash taken away by the

accused. It is not the case of the prosecution that the

appellant cannot be reformed or that the accused is a social

menace. Apart from the incident in question there is no

criminal antecedent of the appellant. It is true that the

accused has committed a heinous crime, but it cannot be held

Page 23 23

with certainty that this case falls in the “rarest of the rare

category”. On appreciation of evidence on record and keeping

in mind the facts and circumstances of the case, we are of the

view that sentence of death penalty would be extensive and

unduly harsh.

30.Accordingly, we commute the death sentence of appellant

to life imprisonment. The conviction and rest part of the

sentence are affirmed. Appeals are partly allowed.

………………………………………………J.

(H.L. DATTU)

……….……………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.

(M.Y. EQBAL)

NEW DELHI,

JULY 3, 2014.