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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Review Petition (Crl.) Nos.637-638 of 2015

IN

Criminal Appeal Nos.2486-2487 of 2014

Vasanta Sampat Dupare ….. Petitioner

Versus

State of Maharashtra …. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1.These Review Petitions are directed against the Judgment and Order

dated 26.11.2014 passed by this Court in Criminal Appeal Nos.2486-87 of

2014 affirming conviction of the petitioner for the offences punishable under

Sections 302, 363, 367, 376(2)(f) and 201 IPC and various sentences

imposed upon the petitioner including death sentence under Section 302 IPC

and life imprisonment under Section 376(2)(f) IPC. In view of the decision

Page 2 2

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

and others.

1

, these review petitions were listed in Court for oral hearing.

2.The facts leading to the filing of criminal appeals in this Court

including the nature and quality of evidence on record have been dealt with

and considered in the Judgment of this Court dated 26.11.2014

2

. The charge

against the petitioner was that the victim, a minor girl of four years was raped

and battered to death by the petitioner. The petitioner allegedly lured the

victim by giving her chocolates, kidnapped her and after satisfying his lust

caused crushing injuries to her with the help of stones weighing about 8.5 kg

and 7.5 kg. The prosecution relied upon the evidence of PW2 Manisha, PW3

Minal, PW5 Vandana and PW6 Baby Sharma who had seen the petitioner

taking away the victim on a bicycle on the fateful day. In his disclosure

statement under Section 27 of the Evidence Act the petitioner had shown the

place where dead body of the victim was lying and the tap where he had

washed his blood stained clothes. The medical evidence on record was dealt

with in paragraph 14 of the Judgment under review as under :-

14. According to the doctor, he had found during internal

examination that under scalp haematoma was present over left

frontal and right frontal region of size 4cm × 4cm, dark red, the

1

(2014) 9 SCC 737

2

(2015) 1 SCC 253

Page 3 3

frontal bone was fractured and depressed, fracture line extended

up to occipital bone through right temporal and parietal bone

fracture on interior and middle cranial side. The subarachnoid

haemorrhage was present all over the brain surface and

meninges were congested. In his opinion, the cause of death

was head injury, associated with the injury on the genital

region. He has testified that the two stones that were sent to him

in sealed cover along with the requisition, Ext.62, for opinion,

could have been used to cause the injuries on the victim. He has

weighed the stones, which are, 8.5kg and 7.5kg, and has opined

that there had been forceful sexual intercourse.”

3.After taking into account the evidence and the circumstances on

record, this Court in the Judgment under review concluded as under:-

“On a critical analysis of the evidence on record, we are

convinced that the circumstances that have been clearly

established are that the appellant was seen in the courtyard

where the minor girl and other children were playing; that the

appellant was seen taking the deceased on his bicycle; that he

had gone to the grocery shop owned by PW-6 to buy Mint

chocolate along with her; that the accused had told PW2 that

the child was the daughter of his friend and he was going to

‘Tekdi-Wadi’ along with the girl; that the appellant had led to

discovery of the dead body of the deceased, the place where he

had washed his clothes and at his instance the stones smeared

with blood were recovered; that the medical report clearly

indicates about the injuries sustained by the deceased on her

body; that the injuries sustained on the private parts have been

stated by the doctor to have been caused by forcible sexual

intercourse; that the stones that were seized were smeared with

blood and the medical evidence corroborates the fact that

injuries could have been caused by battering with stones; that

the chemical analysis report shows that the blood group found

on the clothes of the appellant; that the appellant has not offered

any explanation with regard to the recovery made at his

instance; and that nothing has been stated in his examination

under Section 313 CrPC that there was any justifiable reason to

implicate him in the crime in question. Thus, we find that each

of the incriminating circumstances has been clearly established

and the chain of circumstances are conclusive in nature to

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exclude any kind of hypothesis, but the one proposed to be

proved, and lead to a definite conclusion that the crime was

committed by the accused. Therefore, we have no hesitation in

affirming the judgment of conviction rendered by the learned

trial Judge and affirmed by the High Court.”

4.On the issue of death sentence awarded to the petitioner, this Court

first considered the principles governing the matter in issue as under:-

“39. Now we shall proceed to deal with the facet of sentence. In

Bachan Singh v. State of Punjab

3

, the Court held thus:

“(a) The normal rule is that the offence of murder shall be

punished with the sentence of life imprisonment. The Court can

depart from that rule and impose the sentence of death only if

there are special reasons for doing so. Such reasons must be

recorded in writing before imposing the death sentence.

(b) While considering the question of sentence to be imposed

for the offence of murder under Section 302 of the Penal Code,

the Court must have regard to every relevant circumstance

relating to the crime as well as the criminal. If the Court finds,

but not otherwise, that the offence is of an exceptionally

depraved and heinous character and constitutes, on account of

its design and the manner of its execution, a source of grave

danger to the society at large, the Court may impose the death

sentence.”

40. In Bachan Singh case

3

, the Court referred to the decision

in Furman v. Georgia

4

and noted the suggestion given by the

learned counsel about the aggravating and the mitigating

circumstances. While discussing about the aggravating

3

(1980) 2 SCC 684

4

33 L.Ed. 2d 346 = 408 US 238 (1972)

Page 5 5

circumstances, the Court noted the aggravating circumstances

suggested by the counsel which read as follows: (Bachan

Singh case

3

, SCC p. 749, para 202)

“Aggravating circumstances.—A court may, however, in the

following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning

and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of

the Union or of a member of any police force or of any public

servant and was committed—

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by

such member or public servant in the lawful discharge of his

duty as such member or public servant whether at the time of

murder he was such member or public servant, as the case may

be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful

discharge of his duty under Section 43 of the Code of Criminal

Procedure, 1973, or who had rendered assistance to a

Magistrate or a police officer demanding his aid or requiring his

assistance under Section 37 and Section 129 of the said Code.”

After reproducing the same, the Court opined: (SCC p. 749,

para 203)

“203. Stated broadly, there can be no objection to the

acceptance of these indicators but as we have indicated already,

we would prefer not to fetter judicial discretion by attempting

to make an exhaustive enumeration one way or the other.”

41. Thereafter, the Court referred to the suggestions pertaining

to mitigating circumstances: (Bachan Singh case

3

, - SCC

p.750 para 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.

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(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.”

After reproducing the above, the Court observed: (SCC p. 750,

para 207)

“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.

42. In the said case, the Court has also held thus: (Bachan

Singh case

3

, SCC p. 751, para 209)

“209. … 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. 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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43. In Machhi Singh and others v. State of Punjab

5

a

three-Judge Bench has explained the concept of rarest of the

rare cases by stating that: (SCC p. 487, para 32)

“32. The reasons why the community as a whole does not

endorse the humanistic approach reflected in ‘death

sentence-in-no-case’ doctrine are not far to seek. In the first

place, the very humanistic edifice is constructed on the

foundation of ‘reverence for life’ principle. When a member of

the community violates this very principle by killing another

member, the society may not feel itself bound by the shackles

of this doctrine. Secondly, it has to be realised that every

member of the community is able to live with safety without his

or her own life being endangered because of the protective arm

of the community and on account of the rule of law enforced by

it. The very existence of the rule of law and the fear of being

brought to book operates as a deterrent of those who have no

scruples in killing others if it suits their ends. Every member of

the community owes a debt to the community for this

protection.”

44. Thereafter, after adverting to the aspects of the feeling of

the community and its desire for self-preservation, the Court

opined that the community may well withdraw the protection

by sanctioning the death penalty. The Court in that regard ruled

thus: (Machhi Singh case

5

, SCC p. 487, para 32)

“32. … But the community will not do so in every case. It may

do so ‘in the rarest of rare cases’ when its collective conscience

is so shocked that it will expect the holders of the judicial

power centre to inflict death penalty irrespective of their

personal opinion as regards desirability or otherwise of

retaining death penalty.”

It is apt to state here that in the said case, emphasis was laid on

certain aspects, namely, manner of commission of murder,

motive for commission of murder, anti-social or socially

abhorrent nature of the crime, magnitude of crime and

personality of the victim of murder.

5

(1983) 3 SCC 470

Page 8 8

45. After so enumerating, the propositions that emerged out

from Bachan Singh

3

were culled out which are as follows:

(Machhi Singh case

5

, SCC p. 489, para 38)

“38. … The following propositions emerge from Bachan Singh

case

3

:

‘(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.”

46. Thereafter, the three-Judge Bench opined that to apply the

said guidelines, the following questions are required to be

answered: (Machhi Singh case

5

, SCC p. 489, para 39)

“(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?”

In the said case, the Court upheld the extreme penalty of death

in respect of three accused persons.”

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5.In the light of the principles as stated above, the facts of the present

matter were considered by this Court in the Judgment under review as

under:-

“57. Keeping in view the aforesaid authorities, we shall proceed

to adumbrate what is the duty of the Court when the collective

conscience is shocked because of the crime committed. When

the crime is diabolical in nature and invites abhorrence of the

collective, it shocks the judicial conscience and impels it to

react keeping in view the collective conscience, cry of the

community for justice and the intense indignation at the manner

in which the brutal crime is committed. We are absolutely

conscious that Judges while imposing sentence, should never be

swayed away by any kind of individual philosophy and

predilections. It should never have the flavour of Judge-centric

attitude or perception. It has to satisfy the test laid down in

various precedents relating to the rarest of the rare case. We are

also required to pose two questions that have been stated in

Machhi Singh case

5

.

58. Presently, we shall proceed to dwell upon the manner in

which the crime was committed. Materials on record clearly

reveal that the appellant was well acquainted with the

inhabitants of the locality and as is demonstrable he had access

to the house of the father of the deceased and the children used

to call him “uncle”. He had lured the deceased to go with him

to have chocolates. It is an act of taking advantage of absolute

innocence. He had taken the deceased from place to place by

his bicycle and eventually raped her in a brutal manner, as if he

had an insatiable and ravenous appetite. The injuries caused on

the minor girl are likely to send a chill in the spine of the

society and shiver in the marrows of human conscience. He had

battered her to death by assaulting her with two heavy stones.

The injured minor girl could not have shown any kind of

resistance. It is not a case where the accused had a momentary

lapse. It is also not a case where the minor child had died

because of profuse bleeding due to rape but because of the

deliberate cruel assault by the appellant. After the savage act

was over, the coolness of the appellant is evident, for he washed

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the clothes on the tap and took proper care to hide things. As is

manifest, he even did not think for a moment the trauma and

torture that was caused to the deceased. The gullibility and

vulnerability of the four year girl, who could not have nurtured

any idea about the maladroitly designed biological desires of

this nature, went with the uncle who extinguished her

life-spark. The barbaric act of the appellant does not remotely

show any concern for the precious life of a young minor child

who had really not seen life. The criminality of the conduct of

the appellant is not only depraved and debased, but can have a

menacing effect on the society. It is calamitous.

60. In the case at hand, as we find, not only was the rape

committed in a brutal manner but murder was also committed

in a barbaric manner. The rape of a minor girl child is nothing

but a monstrous burial of her dignity in the darkness. It is a

crime against the holy body of a girl child and the soul of

society and such a crime is aggravated by the manner in which

it has been committed. The nature of the crime and the manner

in which it has been committed speaks about its

uncommonness. The crime speaks of depravity, degradation and

uncommonality. It is diabolical and barbaric. The crime was

committed in an inhuman manner. Indubitably, these go a long

way to establish the aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances

are to be taken into consideration. The learned counsel for the

appellant pointing out the mitigating circumstances would

submit that the appellant is in his mid-fifties and there is

possibility of his reformation. Be it noted, the appellant was

aged about forty-seven years at the time of commission of the

crime. As is noticeable, there has been no remorse on the part of

the appellant. There are cases when this Court has commuted

the death sentence to life finding that the accused has expressed

remorse or the crime was not premeditated. But the obtaining

factual matrix when unfolded stage by stage would show the

premeditation, the proclivity and the rapacious desire. The

learned counsel would submit that the appellant had no criminal

antecedents but we find that he was a history-sheeter and had a

number of cases pending against him. That alone may not be

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sufficient. The appalling cruelty shown by him to the minor girl

child is extremely shocking and it gets accentuated, when his

age is taken into consideration. It was not committed under any

mental stress or emotional disturbance and it is difficult to

comprehend that he would not commit such acts and would be

reformed or rehabilitated. As the circumstances would

graphically depict, he would remain a menace to society, for a

defenceless child has become his prey. In our considered

opinion, there are no mitigating circumstances.”

6.The above quoted observations of this Court in Judgment under

review show that the aggravating facts were considered in paragraphs 58 and

60 and the entirety of the matter including the mitigating circumstances were

dealt with more particularly in paragraph 61. The aggravating facts not only

showed the extreme depravity but in the opinion of this Court they brought

to the fore the diabolical and barbaric manner in which the crime was

committed. The Court did not find any mitigating circumstances in favour

of the accused to tilt the balance in his favour for awarding lesser

punishment.

7.At this juncture, it may be noted that the decision of this Court in

Machhi Singh (supra) shows that after having laid down oft-quoted

principles, this Court considered individual cases of accused Machhi Singh,

Jagir Singh and Kashmir Singh. As regards Machhi Singh, it was observed

in paragraph 42:-

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“…….The offence committed was of an exceptionally depraved

and heinous character. The manner of its execution and its

design would put it at the level of extreme atrocity and cruelty.

……..The crime committed carries features which could be

utterly horrendous especially when we know the weapons and

the manner of their use. The victims could offer no resistance to

the accused appellants. The law clamours for a sterner sentence;

the crime being heinous, atrocious and cruel.

……..The crime was gruesome and cold-blooded revealing the

propensity of the accused appellants to commit murder.”

Similarly as regards Jagir Singh it was observed,

“…….The crime committed carries features which could be

utterly horrendous especially when we know the weapons and

their manner of use. The victims could offer no resistance to the

accused appellants. The law clamours for a sterner sentence; the

crime being heinous, atrocious and cruel.

………The helpless state of the victims and the circumstances

of the case lead us to confirm the death sentence.”

8.Further, paragraphs 44 and 45 show that one of the accused namely

Kashmir Singh had caused the death of a defenceless child of six years and

the matter as regards said accused Kashmir Singh in particular and with

regard to all the accused in general, was dealt with as under:-

“44. Insofar as appellant Kashmir Singh s/o Arjan Singh is

concerned death sentence has been imposed on him by the

Sessions Court and confirmed by the High Court for the

following reasons:

Similarly, Kashmir Singh appellant caused the death of a

child Balbir Singh aged six years while asleep, a poor

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defenceless life put off by a depraved mind reflecting grave

propensity to commit murder.

45. We are of the opinion that insofar as these three appellants

are concerned the rarest of rare cases rule prescribed in Bachan

Singh case is clearly attracted and sentence of death is called

for. We are unable to persuade ourselves that a sentence of

imprisonment for life will be adequate in the circumstances of

the crime. We therefore fully uphold the view concurrently

taken by the Sessions Court and the High Court that extreme

penalty of death requires to be imposed on appellants (1)

Machhi Singh (2) Kashmir Singh s/o Arjan Singh (3) Jagir

Singh. We accordingly confirm the death sentence imposed on

them and dismiss their appeals.”

9.The assessment and the consideration bestowed by this Court in

Machhi Singh (supra) shows that the aggravating circumstances namely the

manner in which the crime was committed, the brutality and barbaric

manner of execution, the status and helplessness of victims and the fact that

the crime was gruesome and cold blooded were given due weightage. These

facts themselves were found to be tilting the balance against the concerned

accused. In the present case a minor girl of four years was raped and

battered to death by the petitioner. The brutality and diabolical nature of the

crime and the fact that the victim had reposed trust and confidence in the

petitioner was taken into account and this Court found the aggravating

circumstances completely outweighing the other factors. The evidence and

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circumstances were dealt with in the Judgment under review in great detail

and this Court had no hesitation in affirming the death sentence.

10.In the present Review Petition, Mr. Anup Bhambhani, learned Senior

Advocate appearing for the petitioner, at the outset, raised a grievance that in

the light of principles laid down in Bachan Singh and Machhi Singh

(supra) mitigating factors ought to have been taken into account and that

proper and effective hearing in that behalf was not extended to the petitioner.

This Court therefore by Order dated 31.08.2016 permitted the petitioner to

file material to indicate mitigating factors for conversion of the death

sentence to life imprisonment. This was in keeping with the principles laid

down by this Court in Dagdu and Others v. State of Maharashtra

6

wherein

three Judge Bench of this Court had observed:-

“79 …..The Court, on convicting an accused, must

unquestionably hear him on the question of sentence. But if, for

any reason, it omits to do so and the accused makes a grievance

of it in the higher court, it would be open to that Court to

remedy the breach by giving a hearing to the accused on the

question of sentence.”

80. …….For a proper and effective implementation of the

provision contained in Section 235(2), it is not always

necessary to remand the matter to the court which has recorded

the conviction……Remand is an exception, not the rule, and

6

(1977) 3 SCC 68

Page 15 15

ought therefore to be avoided as far as possible in the interests

of expeditious, though fair, disposal of cases.”

11.The petitioner thereafter filed Crl.M.P. Nos.16369-70 of 2016 placing

on record certain facts and material. It was submitted :-

“Education and Activities undertaken by the Petitioner in

Jail

i)The Petitioner submits that he had to discontinue

school after class 6

th

during childhood. Thereafter

he worked in various jobs such as electrician,

construction labourer, nursery worker, security

guard. Death row prisoners in Maharashtra are not

permitted to work, but the Petitioner as an

undertial has worked in the jail nursery. During

incarceration, the Petitioner has undertaken

studies, art competitions as well as several

programmes aimed at reforming himself. The

Petitioner’s counsel is informed that his drawings

are exhibited in jail as well.

ii)The Petitioner has in 2015 successfully completed

the Bachelors Preparatory Programme offered by

the Indira Gandhi National Open University. This

course enables people who have discontinued

schooling before matriculation to prepare for

bachelors-level studies.

iii)The Petitioner in 2015 also successfully completed

the Gandhi Vichar Pariksha (Examinaiton on

Gandhian Thoughts). This examination seeks to

rehabilitate prisoners who have committed violent

crimes, by learning from the life and teaching of

M.K. Gandhi. The course includes classes on the

teachings of M.K. Gandhi, reading his

autobiography, and a descriptive exam.

Page 16 16

iv)The Petitioner is quite proficient in drawing and

has also participated in a drawing competition

organized by the Nagpur Municipal Corporation

and Kalajarn Foundation on 10.01.2016.

v)It is therefore submitted that the Petitioner is on

the path to reformation and rehabilitation and

therefore the death sentence imposed on him

deserves to be commuted to imprisonment for

life.”

The application then set out that the Disciplinary Record of the

Petitioner in Jail was without any blemish and that there were no criminal

antecedents.

12.The matter was thereafter posted for hearing. Mr. Anup Bhambhani,

learned Senior Advocate principally submitted:-

a.The judgment of conviction and order of sentence were passed

by the trial court on the same day namely on 23.02.2012 which was

completely opposed to the law laid down by this Court in Allauddin

Mian and Others v. State of Bihar

7

and against the spirit of Section

235(2) of the CrPC.

b.As laid down in para 206 of Bachan Singh (supra) “the

probability that the accused can be reformed” was an important facet

and the burden was on the State to prove by evidence that the accused

could not possibly be reformed. However, such burden was not

7

(1989) 3 SCC 5

Page 17 17

discharged by the State and no evidence was led. In the absence of

such evidence by the State, no death sentence could be awarded or

confirmed.

13.Para 10 of the decision of this Court in Allauddin Mian v. State of

Bihar (supra) on which reliance was placed, is to the following effect:-

10. Even a casual glance at the provisions of the Penal Code

will show that the punishments have been carefully graded

corresponding with the gravity of offences; in grave wrongs the

punishments prescribed are strict whereas for minor offences

leniency is shown. Here again there is considerable room for

manoeuvre because the choice of the punishment is left to the

discretion of the judge with only the outer limits stated. There

are only a few cases where a minimum punishment is

prescribed. The question then is what procedure does the judge

follow for determining the punishment to be imposed in each

case to fit the crime? The choice has to be made after following

the procedure set out in sub-section (2) of Section 235 of the

Code. That sub-section reads as under:

If the accused is convicted, the judge shall, unless he

proceeds in accordance with the provisions of Section

360, hear the accused on the question of sentence, and

then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy

the rule of natural justice. It is a fundamental requirement of

fair play that the accused who was hitherto concentrating on the

prosecution evidence on the question of guilt should, on being

found guilty, be asked if he has anything to say or any evidence

to tender on the question of sentence. This is all the more

necessary since the courts are generally required to make the

choice from a wide range of discretion in the matter of

sentencing. To assist the court in determining the correct

sentence to be imposed the legislature introduced sub-section

Page 18 18

(2) to Section 235. The said provision therefore satisfies a dual

purpose; it satisfies the rule of natural justice by according to

the accused an opportunity of being heard on the question of

sentence and at the same time helps the court to choose the

sentence to be awarded. Since the provision is intended to give

the accused an opportunity to place before the court all the

relevant material having a bearing on the question of sentence

there can be no doubt that the provision is salutary and must be

strictly followed. It is clearly mandatory and should not be

treated as a mere formality. Mr Garg was, therefore, justified in

making a grievance that the trial court actually treated it as a

mere formality as is evident from the fact that it recorded the

finding of guilt on 31-3-1987, on the same day before the

accused could absorb and overcome the shock of conviction

they were asked if they had anything to say on the question of

sentence and immediately thereafter the decision imposing the

death penalty on the two accused was pronounced. In a case of

life or death as stated earlier, the presiding officer must show a

high decree of concern for the statutory right of the accused and

should not treat it as a mere formality to be crossed before

making the choice of sentence. If the choice is made, as in this

case, without giving the accused an effective and real

opportunity to place his antecedents, social and economic

background, mitigating and extenuating circumstances, etc.,

before the court, the court’s decision on the sentence would be

vulnerable. We need hardly mention that in many cases a

sentencing decision has far more serious consequences on the

offender and his family members than in the case of a purely

administrative decision; a fortiori, therefore, the principle of

fair play must apply with greater vigour in the case of the

former than the latter. An administrative decision having civil

consequences, if taken without giving a hearing is generally

struck down as violative of the rule of natural justice. Likewise

a sentencing decision taken without following the requirements

of sub-section (2) of Section 235 of the Code in letter and spirit

would also meet a similar fate and may have to be replaced by

an appropriate order. The sentencing court must approach the

question seriously and must endeavour to see that all the

relevant facts and circumstances bearing on the question of

sentence are brought on record. Only after giving due weight to

the mitigating as well as the aggravating circumstances placed

Page 19 19

before it, it must pronounce the sentence. We think as a general

rule the trial courts should after recording the conviction

adjourn the matter to a future date and call upon both the

prosecution as well as the defence to place the relevant material

bearing on the question of sentence before it and thereafter

pronounce the sentence to be imposed on the offender. In the

present case, as pointed out earlier, we are afraid that the

learned trial Judge did not attach sufficient importance to the

mandatory requirement of sub-section (2) of Section 235 of the

Code.”

14.Sub-section (2) of Section 235 of Cr.P.C. obliges the Court to hear the

accused on the question of sentence and normally it is expected that after

recording the conviction, the matter be adjourned to a future date calling

upon both the prosecution as well as the defence to place relevant material

having bearing on the question of sentence. The effect of recording of the

conviction and imposition of death sentence on the same day, was also

considered by a bench of three learned Judges of this Court in Malkiat

Singh and others v. State of Punjab

8

. In that case, this Court did not deem

it expedient to remand the matter after six years and converted the sentence

of death to imprisonment for life. It was observed:-

“18. On finding that the accused committed the charged

offences, Section 235(2) of the Code empowers the Judge that

he shall pass sentence on him according to law on hearing him.

Hearing contemplated is not confined merely to oral hearing but

also intended to afford an opportunity to the prosecution as well

8

(1991) 4 SCC 341

Page 20 20

as the accused to place before the court facts and material

relating to various factors on the question of sentence, and if

interested by either side, to have evidence adduced to show

mitigating circumstances to impose a lesser sentence or

aggravating grounds to impose death penalty. Therefore,

sufficient time must be given to the accused or the prosecution

on the question of sentence, to show the grounds on which the

prosecution may plead or the accused may show that the

maximum sentence of death may be the appropriate sentence or

the minimum sentence of life imprisonment may be awarded, as

the case may be. No doubt the accused declined to adduce oral

evidence. But it does not prevent to show the grounds to impose

lesser sentence on A-1. This Court in the aforestated Allauddin

and Anguswamy

9

cases held that the sentence awarded on the

same day of finding guilt is not in accordance with the law.

That would normally have the effect of remanding the case to

the Special Court for reconsideration. But in the view of the

fact that A-1 was in incarceration for long term of six years

from the date of conviction, in our considered view it needs no

remand for further evidence. It is sufficient that the sentence of

death awarded to A-1 is converted into rigorous imprisonment

for life. The sentences of death is accordingly modified and A-1

is sentenced to undergo rigorous imprisonment for life for

causing the deaths of all four deceased.”

15. In a recent Judgment rendered by three learned Judges of this Court in

B.A. Umesh v. High Court of Karnataka

10

, the facts were more or less

similar, in that no separate date for hearing on sentence was given after

recording conviction. Para 8 of that decision of this Court is quoted for

ready reference:-

9

(1989) 3 SCC 33

10

(2016) 9 SCALE 600

Page 21 21

“8. In addition to above, it is contended on behalf of the

petitioner (Review Applicant) that since no separate date for

hearing on sentence was given in the present case by the trial

court, as such for violation of Section 235(2) Cr.P.C., the

sentence of death cannot be affirmed. We have considered the

argument of Ms. Suri. It is true that the convict has a right to be

heard before sentence. There is no mandate in Section 235(2)

Cr.P.C. to fix separate date for hearing on sentence. It depends

on the facts and circumstances as to whether a separate date is

required for hearing on sentence or parties feel convenient to

argue on sentence on the same day. Had any party pressed for

separate date for hearing on the sentence, or both of them

wanted to be heard on some other date, situation could have

been different. In the present case, the parties were heard on

sentence by both the courts below, and finally by this Court, as

is apparent from the Judgment under review. As such, merely

for the reason that no separate date is given for hearing on the

sentence, the Review Petition cannot be allowed.”

This Court then relied on the principle laid down in Dagdu v. State of

Maharashtra (supra) which was followed subsequently by another Bench of

three learned Judges in Tarlok Singh v. State of Punjab

11

. In the

circumstances, merely because no separate date was given for hearing on

sentence, we cannot find the entire exercise to be flawed or vitiated. Since

we had allowed the petitioner to place the relevant material on record in the

light of the principles laid down in Dagdu v. State of Maharashtra (supra),

we will proceed to consider the material so placed on record and weigh these

11

(1977) 3 SCC 218

Page 22 22

factors and the aggravating circumstances as found by the Court in the

Judgment under review.

16.However, before such consideration we must deal with the second

submission advanced by Mr. Bhambhani, learned Senior Advocate. In his

submission, in terms of paragraph 206 of the decision of this Court in

Bachan Singh (supra) the burden was upon the State in respect of

conditions (3) and (4), which burden was not discharged at all.

Consequently, according to him, the sentence of death would be required to

be converted to life imprisonment. Paragraph 206 of the decision of this

Court in Bachan Singh (supra) detailed certain mitigating circumstances

and while dealing with conditions (3) and (4), this Court observed that it

would be for the State to prove by evidence that the accused did not satisfy

conditions (3) and (4). However, subsequent paragraphs show that those

circumstances would certainly be relevant and great weight be attached to

them but it was the cumulative effect of the mitigating circumstances on one

hand and the aggravating facts on the other, which would be weighed to

come to the final conclusion whether the case satisfied the requirement of

being “rarest of rare”. It is not as if mere failure on part of the State to lead

such evidence would clinch the issue in favour of the accused.

Page 23 23

17.Mr. Bhambhani, learned Senior Advocate then relied on the decision

of this Court in Rajesh Kumar v. State through Government of NCT of

Delhi

12

, particularly paragraphs 73 and 74 thereof which paragraphs are as

under:

“73. In the instant case the State has failed to show that the

appellant is a continuing threat to the society or that he is

beyond reform and rehabilitation. On the other hand, in para 77

of the impugned judgment the High Court observed as follows:

“We have no evidence that the appellant is incapable of

being rehabilitated in society. We also have no evidence that he

is capable of being rehabilitated in society. This circumstance

remains a neutral circumstance.”

74. It is clear from the aforesaid finding of the High Court that

there is no evidence to show that the accused is incapable of

being reformed or rehabilitated in the society and the High

Court has considered the same as a neutral circumstance. In our

view the High Court was clearly in error. The very fact that the

accused can be rehabilitated in the society and is capable of

being reformed, since the State has not given any evidence to

the contrary, is certainly a mitigating circumstance and which

the High Court has failed to take into consideration. The High

Court has also failed to take into consideration that the

appellant is not a continuing threat to the society in the absence

of any evidence to the contrary. Therefore, in para 78 of the

impugned judgment, the High Court, with respect, has taken a

very narrow and a myopic view of the mitigating circumstances

about the appellant. The High Court has only considered that

the appellant is a first time offender and he has a family to look

after. We are, therefore, constrained to observe that the High

Court’s view of mitigating circumstances has been very

truncated and narrow insofar as the appellant is concerned.”

12

(2011) 13 SCC 706

Page 24 24

The discussion shows that this Court found that mitigating

circumstances in favour of the appellant were not properly considered and in

the ultimate analysis the case did not satisfy being “rarest of rare” and

therefore, this Court substituted the sentence of imprisonment for life to that

of death sentence. The discussion in paragraphs 73 and 74 does not indicate

that in the absence of any evidence led by the State in connection with

conditions (3) and (4) as stated in paragraph 206 of Bachan Singh (supra),

the entire exercise gets vitiated and the matter must always be answered in

favour of the accused. It is undoubtedly a relevant consideration which will

be weighed by the Court together with other circumstances on record. We,

therefore, do not find any merit in the second submission.

18.In Ramnaresh and Others v. State of Chhattisgarh

13

this Court

considered the import of governing principles regarding death sentence and

summed up that it is the cumulative effect of both the aggravating and

mitigating circumstances that need to be taken into account. Paragraphs 76

to 81 of the decision are as under:-

“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 and thereafter, in Machhi Singh

.

The

13

(2012) 4 SCC 257

Page 25 25

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 an

effective and meaningful reasoning by the court as

contemplated under Section 354(3) Cr.P.C.

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,

Page 26 26

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.

(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.

Page 27 27

(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.

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.

78. Stated broadly, these are the accepted indicators for the

exercise of judicial discretion but it is always preferred not to

fetter the judicial discretion by attempting to make the

excessive enumeration, in one way or another. In other words,

these are the considerations which may collectively or

otherwise weigh in the mind of the court, while exercising its

jurisdiction. It is difficult to state it as an absolute rule. Every

case has to be decided on its own merits. The judicial

Page 28 28

pronouncements, can only state the precepts that may govern

the exercise of judicial discretion to a limited extent. Justice

may be done on the facts of each case. These are the factors

which the court may consider in its endeavour to do complete

justice between the parties.

79. The court then would draw a balance sheet of aggravating

and mitigating circumstances. Both aspects have to be given

their respective weightage. The court has to strike a balance

between the two and see towards which side the scale/balance

of justice tilts. The principle of proportion between the crime

and the punishment is the principle of “just deserts” that serves

as the foundation of every criminal sentence that is justifiable.

In other words, the “doctrine of proportionality” has a valuable

application to the sentencing policy under the Indian criminal

jurisprudence. Thus, the court will not only have to examine

what is just but also as to what the accused deserves keeping in

view the impact on the society at large.

80. Every punishment imposed is bound to have its effect not

only on the accused alone, but also on the society as a whole.

Thus, the courts should consider retributive and deterrent aspect

of punishment while imposing the extreme punishment of

death.

81. Wherever, the offence which is committed, manner in which

it is committed, its attendant circumstances and the motive and

status of the victim, undoubtedly bring the case within the

ambit of “rarest of rare” cases and the court finds that the

imposition of life imprisonment would be inflicting of

inadequate punishment, the court may award death penalty.

Wherever, the case falls in any of the exceptions to the “rarest

of rare” cases, the court may exercise its judicial discretion

while imposing life imprisonment in place of death sentence.”

19.It is thus well settled, “the Court would consider the cumulative effect

of both the aspects (namely aggravating factors as well as mitigating

Page 29 29

circumstances) and 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 completely ignoring other classes under other heads and it is the

primary duty of the Court to balance the two.” Further, “it is always

preferred not to fetter the judicial discretion by attempting to make excessive

enumeration, in one way or another; and that both aspects namely

aggravating and mitigating circumstances have to be given their respective

weightage and that the Court has to strike the balance between the two and

see towards which side the scale/balance of justice tilts.” With these

principles in mind we now consider the present review petition.

20.The material placed on record shows that after the Judgment under

review, the petitioner has completed Bachelors Preparatory Programme

offered by the Indira Gandhi National Open University enabling him to

prepare for Bachelor level study and that he has also completed the Gandhi

Vichar Pariksha and had participated in drawing competition organized

sometime in January 2016. It is asserted that the jail record of the petitioner

is without any blemish. The matter is not contested as regards Conditions 1,

2, 5, 6 and 7 as stated in paragraph 206 of the decision in Bachan Singh

(supra) but what is now being projected is that there is a possibility of the

accused being reformed and rehabilitated. Though these attempts on part of

Page 30 30

the petitioner are after the Judgment under review, we have considered the

material in that behalf to see if those circumstances warrant a different view.

We have given anxious consideration to the material on record but find that

the aggravating circumstances namely the extreme depravity and the

barbaric manner in which the crime was committed and the fact that the

victim was a helpless girl of four years clearly outweigh the mitigating

circumstances now brought on record. Having taken an overall view of the

matter, in our considered view, no case is made out to take a different view

in the matter. We, therefore, affirm the view taken in the Judgment under

review and dismiss the present Review Petitions.

..………………………J.

(Dipak Misra)

...………..…..………...J.

(Rohinton Fali Nariman)

…………..……..……..J.

(Uday Umesh Lalit)

New Delhi,

May 03, 2017