Page 1 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 659 OF 2006

State of Rajasthan … Appellant (s)

Versus

Jamil Khan … Respondent

(s)

J U D G M E N T

KURIAN, J.:

1.All murders shock the community; but certain murders shock

the conscience of the Court and the community. The

distinguishing aspect of the latter category is that there is

shock coupled with extreme revulsion. What should be the

penological approach in that category is one question arising

for consideration in this case. What is the scope of

consideration of Death Reference by the High Court under

Chapter XXVIII of the Code of Criminal Procedure, 1973

(hereinafter referred to as ‘Cr.PC’), is the other question.

Whether there is any restriction on the exercise of power

under Section 432 Cr.PC for remission and Section 433 Cr.PC

1

REPORTABLE

Page 2 for commutation in cases of minimum sentence is the third

main issue.

2.On 23.12.2002, Pooja, a tiny girl below five years of age was

brutally raped and thereafter murdered by the respondent.

He packed the dead body in a sack and further in a bag and

secretly left it in a train. By Judgment dated 15.04.2004, the

Sessions Court, having regard to the overwhelming evidence,

convicted the respondent under Section 302 of the Indian

Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and

sentenced him to death. He was also found guilty under

Section 376 of IPC and was sentenced to imprisonment for

life with a fine of Rs.2,000/-. Under Section 201 of IPC, he was

convicted and sentenced to rigorous imprisonment for three

years and a fine of Rs.500/-. There was default clause as well.

The Sessions Court mainly relied on the decision of this Court

in Kamta Tiwari vs. State of Madhya Pradesh

1

. In that

case, a seven year old child was raped, murdered and the

body was thrown into a well. This Court awarded death

sentence. In the instant case, the Death Reference was

considered by the High Court of Rajasthan along with the

Appeal leading to the impugned Judgment dated 09.11.2004.

1

(1996) 6 SCC 250

2

Page 3 The case law on sentencing has been extensively referred

to by the High Court. But without reference to the aggravating

or mitigating circumstances or to the special reasons, the High

Court held that the case does not fall in the category of rarest

of rare cases warranting death sentence. Thus, the High Court

declined to confirm the death sentence and awarded life

imprisonment under Section 302 of IPC. The conviction and

sentence under Sections 376 and 201 of IPC was maintained.

3.The State has come in appeal contending that it is a fit case

where punishment of death should be awarded to the

respondent. There is no appeal by the respondent

challenging the conviction and sentence as confirmed by the

High Court under Sections 302, 376 and 201 of IPC.

4.Having regard to the above background, it is not necessary

to extensively refer to the factual matrix, except for the

relevant aspects. However, to understand the nature of the

crime, we shall refer to the injuries noticed by the medical

board in the post mortem:

“Ext. genital part blood stained and vaginal bleeding

present, vaginal tear (2

nd

degree) extend upto anal office

postrly, hymen rupture, cervix admit one finger loose,

vaginal smear is taken, send for FSL & slide is prepared from

vaginal secretion, send for FSL.

1.Ligature mark 1cm x 0.5cm deep is present

around the whole neck below the thyroid cartilage,

3

Page 4 base is brownish Red dry parchment lobe appearance

on cut sectioned the sub cut tissue beneath the

ligature mark is ecchymosed;

2.Abrasion- 3cm x 0.2cm in size three in number

parallel to each other, vertical position mid of the neck

antrly below the ligature mark;

3.Ligature mark 1cm breadth is present on antero

lateral and post part of middle of both leg, this mark is

post mortem in nature.

Injury No. 1 & 2 ante mortem in nature.”

5.In the opinion of the Medical Board, asphyxia due to

strangulation was the cause of death.

6.The injuries present on the body of the tiny child would

clearly establish the barbaric nature of the commission of the

offence. The respondent had some previous acquaintance

with the child when he used to visit his parents who stayed in

the neigbourhood. It has come in evidence that the

respondent had planned the crime. On the fateful day, he

had come to the place, drunk, carrying with him a sack and a

blue bag. PW2, who knows the accused, had seen him

proceeding towards his house carrying a white coloured

katta (sack) on his shoulder and a blue coloured bag in his

hands. According to PW3, the accused had gone to his shop,

bought peanuts and madhu gutka. He lured the child by

offering peanuts and took her to his parents’ house. PW3 had

4

Page 5 seen the accused carrying the loaded bag on his shoulder. It

is not necessary to discuss the other evidence available from

the recovered articles which all have conclusively established

that it was the respondent who committed the offence.

7.Aggravating factors qua the crime and mitigating factors qua

the criminal should be properly balanced so as to decide

whether an offence of murder would fall under the rarest of

rare category to be visited with the extreme punishment of

death. The Court, under Section 354(3) of Cr.PC, has to give

special reasons, in case death sentence is awarded. The very

decision of the Court that a case falls under the rarest of rare

category would ordinarily meet the requirement of special

reasons under Section 354(3) of the Cr.PC since inclusion of a

case in that category can be only on such finding. As held by

the Constitution Bench of this Court in Bachan Singh vs.

State of Punjab

2

, the finding would depend on facts and

circumstances of each case. To quote:

“201. …As we read Sections 354(3) and 235(2) and

other related provisions of the Code of 1973, it is quite

clear to us that for making the choice of punishment or

for ascertaining the existence or absence of “special

reasons” in that context, the court must pay due regard

both to the crime and the criminal. What is the relative

weight to be given to the aggravating and mitigating

factors, depends on the facts and circumstances of the

particular case. More often than not, these two aspects

2

(1980) 2 SCC 684

5

Page 6 are so intertwined that it is difficult to give a separate

treatment to each of them. This is so because “style is

the man”. In many cases, the extremely cruel or beastly

manner of the commission of murder is itself a

demonstrated index of the depraved character of the

perpetrator. That is why, it is not desirable to consider

the circumstances of the crime and the circumstances

of the criminal in two separate watertight

compartments. In a sense, to kill is to be cruel and,

therefore all murders are cruel. But such cruelty may

vary in its degree of culpability. And it is only when the

culpability assumes the proportion of extreme depravity

that “special reasons” can legitimately be said to exist.”

(Emphasis supplied)

8.In Machhi Singh and Others vs. State of Punjab

3

, a

three-Judge Bench of this Court has made an attempt to cull

out certain aggravating and mitigating circumstances and it

has been held that in case imprisonment for life is

inadequate in view of the peculiar aspects of the crime, then

alone the sentence of death should be awarded. To quote:

“38. xxxxxxxxx

(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

3

(1983) 3 SCC 470

6

Page 7 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:

(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.”

(Emphasis supplied)

9.In Shankar Kisanrao Khade vs. State of Maharashtra

4

,

referring to the recent decisions (of about fifteen years), this

Court has summarized the mitigating factors and aggravating

factors. Young age of the accused, the possibility of

4

(2013) 5 SCC 546

7

Page 8 reforming and rehabilitating the accused, the accused having

no prior criminal record, the accused not likely to be a

menace or threat or danger to society or the community, the

accused having been acquitted by one of the courts, the

crime not being premeditated, the case being of

circumstantial evidence, etc., are some of the mitigating

factors indicated therein. The cruel, diabolic, inhuman,

depraved and gruesome nature of the crime, the crime result

in public abhorrence, shocks the judicial conscience or the

conscience of society or the community, the reform or

rehabilitation of the convict is not likely or that he would be a

menace to society, the crime was either unprovoked or that

it was premeditated, etc., are some of the aggravating

factors indicated in the said decision.

10.In State of Uttar Pradesh vs. Sattan alias Satyendra

and Others

5

, this Court had an occasion to consider the

penological purpose of sentencing. To quote:

“30. “21.‘9. The law regulates social interests,

arbitrates conflicting claims and demands. Security of

persons and property of the people is an essential

function of the State. It could be achieved through

instrumentality of criminal law. Undoubtedly, there is a

cross-cultural conflict where living law must find answer

to the new challenges and the courts are required to

mould the sentencing system to meet the challenges.

The contagion of lawlessness would undermine social

5

(2009) 4 SCC 736

8

Page 9 order and lay it in ruins. Protection of society and

stamping out criminal proclivity must be the object of

law which must be achieved by imposing appropriate

sentence. Therefore, law as a cornerstone of the edifice

of "order" should meet the challenges confronting the

society. ...

10. Therefore, undue sympathy to impose

inadequate sentence would do more harm to the justice

system to undermine the public confidence in the

efficacy of law and society could not long endure under

such serious threats. It is, therefore, the duty of every

court to award proper sentence having regard to the

nature of the offence and the manner in which it was

executed or committed etc. …”

(Emphasis supplied)

11.This Court did not mince words while discussing the

requirement of adequate punishment in Mahesh s/o Ram

Narain and Others vs. State of Madhya Pradesh

6

. To

quote:

“6. …it will be a mockery of justice to permit these

appellants to escape the extreme penalty of law when

faced with such evidence and such cruel acts. To give

the lesser punishment for the appellants would be to

render the justicing system of this country suspect. The

common man will lose faith in courts. In such cases, he

understands and appreciates the language of

deterrence more than the reformative jargon. ...”

(Emphasis supplied)

12.In Devender Pal Singh vs. State of NCT of Delhi and

Another

7

, after referring to the Bachan Singh and Machhi

6

(1987) 3 SCC 80

7

(2002) 5 SCC 234

9

Page 10 Singh cases (supra), this Court held that when the collective

conscience of the community is so shocked, it will expect the

judiciary to inflict death penalty. To quote:

“58. From Bachan Singh v. State of Punjab and Machhi

Singh and Others v. State of Punjab, the principle culled

out is that when the collective conscience of the

community is so shocked, that it will expect the holders

of the judicial power center to inflict death penalty

irrespective of their personal opinion as regards

desirability or otherwise of retaining death penalty, the

same can be awarded. It was observed:

The community may entertain such sentiment in the

following circumstances:

(1) When the murder is committed in an extremely

brutal, grotesque, diabolical, revolting, or dastardly

manner so as to arouse intense and extreme

indignation of the community.

(2) When the murder is committed for a motive

which evinces total depravity and meanness ; e.g.

murder by hired assassin for money or reward; or

cold-blooded murder for gains of a person vis-a-vis

whom the murderer is in a dominating position or

in a position of trust; or murder is committed in the

course of betrayal of the motherland.

(3) When murder of a member of a Scheduled

Caste or minority community etc. is committed not

for personal reasons but in circumstances which

arouse social wrath; or in cases of ‘bride burning’

or ‘dowry deaths’ or when murder is committed in

order to remarry for the sake of extracting dowry

once again or to marry another woman on account

of infatuation.

(4) When the crime is enormous in proportion. For

instance when multiple murders, say of all or

almost all the members of a family or a large

number of persons of a particular caste,

community, or locality, are committed.

(5) When the victim of murder is an innocent child,

or a helpless woman or old or infirm person or a

10

Page 11 person vis-a-vis whom the murderer is in a

dominating position, or a public figure generally

loved and respected by the community.

If upon taking an overall global view of all the

circumstances in the light of the aforesaid propositions

and taking into account the answers to the questions

posed by way of the test for the rarest of rare cases, the

circumstances of the case are such that death sentence

is warranted, the court would proceed to do so".

(Emphasis supplied)

13.According to Lord Denning, the punishment inflicted for

grave crimes should reflect the revulsion felt by the great

majority of citizens. To him, deterrence, reformation or

prevention are not the determinative factors. His statement

to the Royal Commission on Capital Punishment made in

1950 reads:

“Punishment is the way in which society expresses its

denunciation of wrong doing; and, in order to maintain

respect for the law, it is essential that the punishment

inflicted for grave crimes should adequately reflect the

revulsion felt by the great majority of citizens for them.

It is a mistake to consider the objects of punishments as

being a deterrent or reformative or preventive and

nothing else... The truth is that some crimes are so

outrageous that society insists on adequate

punishment, because the wrong doer deserves it,

irrespective of whether it is a deterrent or not.”

(Emphasis supplied)

11

Page 12 14.As held by this Court in Ajitsingh Harnamsingh Gujral

vs. State of Maharashtra

8

, a distinction has to be drawn

between ordinary murders and murders which are gruesome,

ghastly or horrendous. In such cases,

“93.…While life sentence should be given in the

former, the latter belongs to the category of the rarest

of rare cases, and hence death sentence should be

given. …”

15.Any murder would cause a shock to the society but all

murders may not cause revulsion in society. Certain murders

shock the collective conscience of the Court and community.

Heinous rape of minors followed by murder is one such

instance of a crime which shocks and repulses the collective

conscience of the community and the Court. Such crimes

arouse extreme revulsion in society. While culling out the

rarest of rare cases on the basis of aggravating and

mitigating factors, we are of the view that such crimes, which

shock the collective conscience of the society by creating

extreme revulsion in the minds of the people, are to be

treated as the rarest of rare category.

16.Although the crime in the present case is gruesome and

renders a loathsome shock to the community, we are bound

by the ratio in Bachan Singh’s case (supra) which requires

8

(2011) 14 SCC 401

12

Page 13 the Court to consider the mitigating factors qua the criminal.

In the instant case, the respondent no doubt was young at

the time of the commission of the offence, above nineteen

years of age. He was a labourer. But while considering the

mitigating factors, poverty has to be understood in light of

whether it was a factor influencing the commission of

offence. In a recent decision by coordinate Bench of this

Court, authored by one of us (Kurian, J.) in Sunil Damodar

Gaikwad vs. State of Maharashtra

9

, decided on

10.09.2013, in Criminal Appeal Nos. 165-166 of 2011, it has

been held that:

“Poverty, socio-economic, psychic compulsions,

undeserved adversities in life are thus some of the

mitigating factors to be considered, in addition to those

indicated in Bachan Singh and Machhi Singh cases.”

That was a case where a poor tailor finding it difficult to

maintain his family of wife and three children, one of whom also

required constant treatment, decided to wipe out the entire

family. Poverty shall not be understood and applied as disjunct

from the factual position. In other words, poverty or socio-

economic, psychic or undeserved adversities in life shall be

considered as mitigating factors only if those factors have a

compelling or advancing role to play in the commission of the

9

JT (2013) SC 310

13

Page 14 crime or otherwise influencing the criminal. Thus, merely

because the offender is a poor person, his poverty will not be a

mitigating factor. In this case the mitigating factor of the crime

is not poverty. The lust fuelled crime of rape and murder and

that too of a minor child of tender age has nothing to do with

the poverty, socio-economic background or other psychic

compulsions of the criminal. The decision in Sunil Damodar

Gaikwad’s case (supra) will stand clarified to the above extent.

17.In the instant case, there cannot be any doubt that the

crime is of extreme mental perversion. It was a well-planned

crime as can be seen from the discussion at Paragraph 7 ibid.

The major mitigating factor as far as respondent in this case

is concerned is that he was young. However, in Shankar

Kisanrao’s case (supra), this Court held that the fact that

the accused is young by itself is not a major and deciding

factor while considering the mitigating factors. Dhananjoy

Chatterjee vs. State of W.B.

10

, Jai Kumar vs. State of

M.P.

11

, Shivu and Another vs. Registrar General, High

Court of Karnataka and Another

12

, Vikram Singh and

Others vs. State of Punjab

13

, Atbir vs. Government Of

10

(1994) 2 SCC 220: (1994) SCC (Cri) 358

11

(1999) 5 SCC 1: (1999) SCC (Cri) 638

12

(2007) 4 SCC 713

13

(2010) 3 SCC 56

14

Page 15 NCT of Delhi

14

, Mohd. Ajmal Amir Kasab alias Abu

Mujahid vs. State of Maharashtra

15

, are some of the

cases where this Court, in view of the overwhelming and

aggravating circumstances, declined to consider the

mitigating factor of young age.

18.That the accused was under the influence of alcohol at the

time of the commission of the offence also is not a mitigating

factor. It is not a case where somebody had forcefully

administered intoxicating drinks or drugs to the respondent

and made him commit the offence. That he had taken

alcoholic drinks at around 10.00 a.m. is also an indicator to

the premeditation of the crime shortly thereafter. Thus,

having regard to the nature of the crime, the manner in

which it was committed and above all, having regard to the

major aggravating factor of extreme repulsion which has

shocked the collective conscience of the community and the

Court, as also the sole mitigating factor of his young age, we

are of the opinion that punishment of life imprisonment is

grossly inadequate.

19.We are also fortified in our view by the following decisions

of this Court in similar circumstances. In State of U.P. vs.

14

(2010) 9 SCC 1

15

(2012) 9 SCC 1

15

Page 16 Satish

16

, this Court reversed the acquittal by the High Court

and awarded death sentence. It was case of rape and murder

of a minor girl aged less than six years. Shivu (supra) was a

case of rape and murder of an eighteen year old girl by the

neighbours. The death sentence on both the accused was

upheld by this Court. Bantu vs. State of Uttar Pradesh

17

was a case of the accused alluring a five year old child with a

balloon, committing rape and murder. The death sentence

was upheld by this Court. Shivaji alias Dadya Shankar

Alhat vs. State of Maharashtra

18

was a case of a nine

year old child being taken by a neighbour who promised to

help her to collect wood from the forest, raped and murdered

her. This Court upheld the death sentence. Mohd. Mannan

alias Abdul Mannan vs. State of Bihar

19

, authored by one

of us (Prasad, J.), is a case of rape and murder of a seven

year old child. The death sentence awarded by the Sessions

Court as confirmed by the High Court was upheld. Rajendra

Pralhadrao Wasnik vs. State of Maharashtra

20

is a case

of rape and murder of a three year old girl child. There also,

16

(2005) 3 SCC 114

17

(2008) 11 SCC 113: (2009) 1 SCC (Cri) 353

18

(2008) 15 SCC 269

19

(2011) 5 SCC 317

20

(2012) 4 SCC 37: (2012) 2 SCC (Cri) 30

16

Page 17 the death sentence awarded by the Sessions Court as

confirmed by the High Court was upheld by this Court.

20.Although the High Court in this case referred to several

decisions on sentencing, it is sad to note that there is no

discussion on any of the aggravating and mitigating

circumstances. There is no consideration as to whether the

case on facts falls under the rarest of rare category.

21.Chapter XXVIII of Cr.PC (containing Sections 366 to 371)

deals with the process of confirmation of death sentence by

the High Court. For the purpose of ready reference, we shall

extract the provisions:

“366. Sentence of death to be submitted by Court of

Session for confirmation.-(1) When the Court of Session

passes a sentence of death, the proceedings shall be

submitted to the High Court, and the sentence shall not be

executed unless it is confirmed by the High Court.

(2) The Court passing the sentence shall commit the

convicted person to jail custody under a warrant.

367. Power to direct further inquiry to be made or

additional evidence to be taken. -(1) If, when such

proceedings are submitted, the High Court thinks that a

further inquiry should be made into or additional evidence

taken upon, any point bearing upon the guilt or innocence

of the convicted person, it may make such inquiry or take

such evidence itself, or direct it to be made or taken by

the Court of Session.

(2) Unless the High Court otherwise directs, the presence

of the convicted person may be dispensed with when such

inquiry is made or such evidence is taken.

17

Page 18 (3) When the inquiry or evidence (if any) is not made or

taken by the High Court, the result of such inquiry or

evidence shall be certified to such Court.

368. Power of High Court to confirm sentence or

annul conviction.-In any case submitted under section

366, the High Court-

(a) may confirm the sentence, or pass any other

sentence warranted by law, or

(b)may annul the conviction, and convict the accused

of any offence of which the Court of Session might

have convicted him, or order a new trial on the same

or an amended charge, or

(c) may acquit the accused person:

Provided that no order of confirmation shall be made

under this section until the period allowed for preferring

an appeal has expired, or, if an appeal is presented within

such period, until such appeal is disposed of.

369. Confirmation or new sentence to be signed by

two Judges.-In every case so submitted, the confirmation

of the sentence, or any new sentence or order passed by

the High Court, shall when such Court consists of two or

more Judges, be made, passed and signed by at least two

of them.

370. Procedure in case of difference of opinion. -

Where any such case is heard before a Bench of Judges

and such Judges are equally divided in opinion, the case

shall be decided in the manner provided by section 392.

371. Procedure in cases submitted to High Court for

confirmation.-In cases submitted by the Court of Session

to the High Court for the confirmation of a sentence of

death, the proper officer of the High Court shall, without

delay, after the order of confirmation or other order has

been made by the High Court, send a copy of the order

under the seal of the High Court and attested with his

official signature, to the Court of Session.”

18

Page 19 22.These provisions lay down the detailed procedure on

confirmation of death sentence. The following are the

mandatory requirements:

(i) Death Reference shall be heard by a Bench of minimum

two Judges. The Chief Justice being the master of roster

is free to constitute a Bench of more Judges.

(ii)On any point having a bearing on the guilt or innocence

of the convicted person, for which there is no clarity, the

High Court may,

(a) conduct a further inquiry;

(b) take additional evidence;

(c) may get the inquiry conducted or additional

evidence taken by the Sessions Court.

(iii)On the basis also of the inquiry or additional evidence, if

any, the High Court may,

(a)confirm the death sentence;

however, in case the convict has filed an appeal,

the same has to be disposed of before passing

the order of confirmation;

and, no order of confirmation shall be passed

until the period allowed for filing an appeal has

expired.

(b)pass any other sentence;

(c)annul conviction;

(d)convict the accused of any offence which the

Court of Sessions would or could have convicted

him.

(iv) Amend the charges.

(v) Order fresh trial on charges already framed or on

amended charges.

(vi)May acquit the accused.

19

Page 20 (vii)In case the Bench is equally divided in opinion, their

opinions shall be laid before a third Judge of that Court

and the decision will depend on the opinion of the third

Judge.

(viii)If the third Judge before whom the opinions have been

placed is of opinion that the matter should be heard by

a larger Bench of Judges, the reference has to be heard

by a larger Bench, in view of the requirement under

Section 392 of Cr.PC.

23.The detailed procedure would clearly show the seriousness

with which the High Court has to consider a reference for the

confirmation of death sentence. In a recent decision in Kunal

Majumdar vs. State of Rajasthan

21

, a coordinate Bench of

this Court has held that it is a special and onerous duty of the

High Court. To quote:

“18. … A duty is cast upon the High Court to examine

the nature and the manner in which the offence was

committed, the mens rea if any, of the culprit, the plight

of the victim as noted by the trial court, the diabolic

manner in which the offence was alleged to have been

performed, the ill-effects it had on the victim as well as

the society at large, the mindset of the culprit vis-à-vis

the public interest, the conduct of the convict

immediately after the commission of the offence and

thereafter, the past history of the culprit, the magnitude

of the crime and also the consequences it had on the

dependants or the custodians of the victim. There

should be very wide range of consideration to be made

by the High Court dealing with the reference in order to

ensure that the ultimate outcome of the reference

would instill confidence in the minds of peace-loving

citizens and also achieve the object of acting as a

deterrent for others from indulging in such crimes.”

21

(2012) 9 SCC 320

20

Page 21 24.The High Court must refer to the special reasons found by

the Sessions Court for inclusion of the case in the rarest of

rare category. It has to be seen that the Court of Sessions

has already passed a sentence and what is required is only

confirmation before execution. On the facts and

circumstances of the case, the High Court has to consider

whether the case actually falls under the rarest of rare

category. In other words, in the process of consideration of a

case for confirmation of death sentence, the High Court has

to see whether there is presence or absence of special

reasons many of which are indicated in the decision in Kunal

Majumdar’s case (supra). If on such consideration, the High

Court finds that special reasons are available in the facts and

circumstances of the case, the High Court has to confirm the

death sentence. In the absence of such compelling special

reasons, the High Court shall award only imprisonment for

life.

25.In the facts of the present case, the offence was

committed in 2002. The accused was convicted and

sentenced to death by the Sessions Court in April, 2004. In

November 2004, the High Court commuted the death

sentence to life imprisonment but maintained the other

21

Page 22 punishments under Sections 376 and 201 of IPC of life and

three years respectively. The State moved this Court in

Special Leave Petition in May 2005. Leave was granted on

08.05.2006. For one reason or the other, the matter was

finally heard only in September 2013. The question is:

Whether this Court would be justified in imposing the

extreme punishment of death at this point of time?

26.The Constitution Bench of this Court in Triveniben vs.

State of Gujarat

22

and various other cases had occasion to

consider the consequences of inordinate delay in disposal of

mercy petitions under Article 72 or 161 of the Constitution of

India. It has been held by this Court that when a matter is

pending before this Court, the person always has a ray of

hope and hence, it cannot be said that the delay occasioned

in Court would be a ground for commutation of death

sentence. To quote:

“16.Even in this Court although there does not appear

to be a specific rule but normally these matters are

given top priority. Although it was contended that this

reference before us - a Bench of five Judges, was listed

for hearing after a long interval of time. We do not know

why this reference could not be listed excepted what is

generally well-known the difficulty of providing a Bench

of five Judges but ordinarily it is expected that even in

this Court the matters where the capital punishment is

involved will be given top priority and shall be heard of

and disposed of as expeditiously as possible but it could

22

(1989) 1 SCC 678

22

Page 23 not be doubted that so long as the matter is pending in

any court before final adjudication even the person who

has been condemned or who has been sentenced to

death has a ray of hope. It therefore could not be

contended that he suffers that mental torture which a

person suffers when he knows that he is to be hanged

but waits for the doomsday. The delay therefore which

could be considered while considering the question of

commutation of sentence of death into one of life

imprisonment could only be from the date the judgment

by the Apex Court is pronounced i.e. when the judicial

process has come to an end.”

(Emphasis supplied)

27.In a recent decision in Mahendra Nath Das vs. Union of

India and Others

23

, this Court had considered the

consequence of delay of 12 years in deciding a mercy

petition under Article 72 of the Constitution of India and held

that it was a case of inordinate delay causing mental torment

to the convict, and hence commuted the sentence of death

to life imprisonment.

28.It is significant to note that all these were cases where the

persons convicted under Section 302 of IPC and sentenced

for death had been waiting for the decision on the mercy

petitions. The instant case is one where a person whose

death sentence has been substituted to life imprisonment.

Apparently reconciled to his fate, he has been serving his

term. Whether, at this juncture, it would be just and proper to

23

(2013) 6 SCC 253

23

Page 24 alter his sentence to death is the disturbing question. State

of Madhya Pradesh vs. Vishweshwar Kol

24

, authored by

one of us (Prasad, J.), was a case where the Trial Court had

convicted the accused and imposed death penalty and in

appeal, the High Court acquitted him. It was a case of bride

burning. The incident was of October, 2003. The Trial Court

convicted the accused under Section 302 of IPC and the

sentence of death was passed on 30.04.2004. The High Court

acquitted him on 06.12.2004 and this Court finding that it is a

fit case for awarding death sentence and yet taking note of

the course of events referred to above, it was held that:

“11.… notwithstanding the horrendous nature of the

crime and that it called for the capital punishment, we

find it difficult to reimpose the death sentence on the

accused at this stage.”

And the accused consequently was awarded sentence of life

imprisonment.

29.In the case before us, nine years have passed after

substitution of his death sentence by life imprisonment. We

are reluctantly of the view that it would not be just and

proper to alter the sentence from life imprisonment to death

at this stage. In future, in order to avoid such contingencies,

24

(2011) 11 SCC 472

24

Page 25 cases where enhancement of life sentence to death is

sought, should be given due priority.

30.Section 53 of the IPC provides for the following

punishments:

“First.- Death;

Secondly.- Imprisonment for life;

xxx xxx xxx

Fourthly.-Imprisonment, which is of two descriptions,

namely:-

(1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly.-Forfeiture of property;

Sixthly.-Fine.”

31.Imprisonment for life is till the end of the biological life of

the person, as held by a Constitution Bench of this Court in

Gopal Vinayak Godse vs. The State of Maharashtra

and Others

25

. However, this Court has been, for quite some

time, conscious of the liberal approach and sometimes

discriminatory too, taken by the States in exercise of their

power under Sections 432 and 433 of Cr.PC in remitting or

commuting sentences. In Jagmohan Singh vs. State of

U.P.

26

, this Court had expressed concern about such

approach made by the States in remitting life sentences.

That led to the amendment in Cr.PC introducing Section 433A

by Act 45 of 1978. Under Section 433A of Cr.PC, a sentence

25

AIR 1961 SC 600

26

(1973) 1 SCC 20

25

Page 26 of imprisonment for life is imposed for an offence for which

death is one of the punishments or where a death sentence

is commuted to life under Section 433, he shall not be

released unless he has served fourteen years of

imprisonment. It appears that the provision has been

generally understood to mean that life sentence would only

be fourteen years of incarceration. Taking judicial notice of

such a trend, this Court has, in cases where imposition of

death sentence would be too harsh and imprisonment for life

(the way it is understood as above) too inadequate, in

several cases, has adopted different methods to ensure that

the minimum term of life imprisonment ranges from at least

twenty years to the end of natural life. In Shri Bhagwan vs.

State of Rajasthan

27

, Prakash Dhawal Khairnar (Patil)

vs. State of Maharashtra

28

and Ram Anup Singh and

Others vs. State of Bihar

29

, it was 20 years; in Dilip

Premnarayan Tiwari and Another vs. State of

Maharashtra

30

, it was 25 years; in Neel Kumar alias Anil

Kumar vs. State of Haryana

31

, it was 30 years; and in

Swamy Shraddananda (2) alias Murali Manohar Mishra

27

(2001) 6 SCC 296

28

(2002) 2 SCC 35

29

(2002) 6 SCC 686

30

(2010) 1 SCC 775

31

(2012) 5 SCC 766

26

Page 27 vs. State of Karnataka

32

, it was till the end of life without

remission or commutation. Ranjit Singh alias Roda vs.

Union Territory of Chandigarh

33

is a case where a person

committed a second murder. He was sentenced for life

imprisonment for the first murder. Taking note of the fact

that the co-accused was not given death sentence and

awarded only life imprisonment, this Court in the second

offence also awarded only life imprisonment. However, it was

made clear that:

“2. … in case any remission or commutation in respect

of his earlier sentence is granted to him the present

sentence should commence thereafter.”

32.However in some cases, the Court had also been voicing

concern about the statutory basis of such orders. We are of

the view that it will do well in case a proper amendment

under Section 53 of IPC is provided, introducing one more

category of punishment - life imprisonment without

commutation or remission. Dr. Justice V. S. Malimath in the

Report on “Committee of Reforms of Criminal Justice

System”, submitted in 2003, had made such a suggestion but

so far no serious steps have been taken in that regard. There

32

(2008) 13 SCC 767

33

(1984) 1 SCC 31

27

Page 28 could be a provision for imprisonment till death without

remission or commutation.

33.In the present case, the respondent has been awarded life

imprisonment under Section 302 of IPC. Under Section 376 of

IPC also he has been awarded life imprisonment. The third

substantive sentence is under Section 201 of IPC. All these

sentences are ordered to run concurrently. The sentence of

life imprisonment is till the end of one’s biological life.

However, in view of the power of the State under Sections

432 and 433 of Cr.PC, in the present case, we are of the view

that the sentences shall run consecutively, in case there is

remission or commutation. We further make it clear that the

remission or commutation, if considered in the case of the

respondent, shall be granted only after the mandatory period

of fourteen years in the case of offence under Section 302 of

IPC.

34.Section 433A of the Cr.PC has imposed a restriction with

regard to the period of remission or commutation. It is

specifically provided that when a sentence of imprisonment

of life, where death is also one of the punishments provided

by law, is remitted or commuted, such person shall not be

released unless he has served at least fourteen years of

28

Page 29 imprisonment. In the case of the respondent herein, second

life imprisonment is under Section 376 of IPC. A minimum

sentence under Section 376 of IPC is seven years. Death is

not an alternate punishment. However, the sentence may

even be for life or for a term which may extend to ten years.

Of the three options thus available, in view of the brutal rape

of a minor girl child, the Sessions Court has chosen to impose

the extreme punishment of life imprisonment to the

respondent.

35.Punishment has a penological purpose. Reformation,

retribution, prevention, deterrence are some of the major

factors in that regard. Parliament is the collective conscience

of the people. If it has mandated a minimum sentence for

certain offences, the Government being its delegate, cannot

interfere with the same in exercise of their power for

remission or commutation. Neither Section 432 nor Section

433 of Cr.PC hence contains a non-obstante provision.

Therefore, the minimum sentence provided for any offence

cannot be and shall not be remitted or commuted by the

Government in exercise of their power under Section 432 or

433 of the Cr.PC. Wherever the Indian Penal Code or such

penal statutes have provided for a minimum sentence for any

29

Page 30 offence, to that extent, the power of remission or

commutation has to be read as restricted; otherwise the

whole purpose of punishment will be defeated and it will be a

mockery on sentencing.

36.Having regard to the facts and circumstances of the

present case, we make it clear that in the event of State

invoking its powers under Section 432 or 433 of Cr.PC, the

sentence under Section 376 of IPC shall not be remitted or

commuted before seven years of imprisonment. In other

words, in that eventuality, it shall be ensured that the

respondent will first serve the term of life imprisonment

under Section 302 of IPC. In case there is any remission after

fourteen years, then imprisonment for a minimum period of

seven years under Section 376 of IPC shall follow and

thereafter three years of rigorous imprisonment under

Section 201 of IPC. The sentence on fine and default as

awarded by the Sessions Court are maintained as such.

37.The appeal is disposed of as above.

………………………………… .…..…………J.

(CHANDRAMAULI KR. PRASAD)

30

Page 31 ……….……..…...……..……………………J.

(KURIAN JOSEPH)

New Delhi;

September 27, 2013.

31

Page 32 32