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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 2276 OF 2022

VIKAS CHAUDHARY ...APPELLANT(S)

VERSUS

THE STATE OF DELHI ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). 2277 OF 2022

J U D G M E N T

S. RAVINDRA BHAT, J.

1.The limited question on which this Court issued notice

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was to consider

the correctness of the sentence imposed on the accused/appellants. The

appellants’ grievance is with the imposition of a fixed term sentence of 30

years, without remission, by the trial court, which was affirmed by the

impugned judgment

2

passed by the Delhi High Court.

1 Order dated 09.05.2019, in SLP (Crl) D. No. 5964/2019, with Special Leave to

Appeal (Crl) No. 3129/2019.

2 Order dated 31.10.2018 passed by the Delhi High Court in Crl. Appeal No. 319/2018.

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2.The facts of the case briefly are that the deceased (aged 18-20 years), had

been kidnapped for ransom on 18.01.2003. On the same day itself, he was killed

by strangulation, and the body was burnt, to eliminate evidence. The deceased’s

father (complainant) filed a ‘missing person report’ with the police on

18.01.2003 itself, after which he received six ransom calls (on 19.01.2003,

20.01.2003, 01.02.2003, 02.02.2003, 10.03.2003, 11.03.2003) from different

people, seeking money in exchange for information about his son’s

whereabouts, and his safety. By tracking of call records, a link was established

first with A-1, who disclosed involvement of A-2 and A-3. A gold chain

belonging to the deceased, and a motorcycle on which the deceased was last

seen, were recovered at the behest of A-1; the deceased’s wristwatch, and a

black muffler used to strangle him, were recovered from A-2. A-1’s disclosure

also led to recovery of the car used to abduct, and in which the deceased had

been strangulated. Evidence collected against them included voice samples to

compare ransom call recordings, and identification by PW-7, PW-2, and others

as to the deceased last being seen with them. On 09.05.2003, the three accused

persons disclosed where the dead body had been dumped, but the same could

not be recovered. Upon investigation, it was found that another police station, in

which jurisdiction the nala fell, had recovered a half-burned dead body on

19.01.2003 itself (i.e., one day after abduction). This was identified by the

father, to be that of the deceased. 41 prosecution witnesses were examined over

the course of 11 years, and 8 defence witnesses.

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3.The trial court

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convicted the three accused persons for the commission of

offence under Sections 302, 364A, 201, read with Section 120B IPC. A-1 and

A-2 (present appellants) were also convicted under Section 411, with A-1

additionally being convicted for offences punishable under Sections 420, 468

and 471 IPC. They were sentenced to life imprisonment for the remainder of

their natural life, and an additional condition was imposed on A-1 and A-2 - that

they would not be entitled to any parole, remission, or furlough, before

completing 30 years of imprisonment. They were also sentenced to each pay

₹ 2,10,000 as fine, and ₹ 4,00,000 as compensation to the victim’s family.

4.The High Court, by its common impugned judgment, on an appreciation

of the facts at hand, acquitted A-3 Joginder @ Mintu of all charges; and

acquitted the present appellants only for offence under Section 411, but

affirmed their conviction for other offences, as well as the corresponding

sentence imposed by the trial court. Aggrieved by the impugned judgment, A-1

and A-2 have approached this court, challenging both the conviction and

sentence; this court issued notice on the limited question of sentence.

Appellants’ contentions

5.Ms. Meenakshi Arora, learned senior counsel, appearing for the

appellants, placed strong emphasis on this court’s decision in Union of India v.

Sriharan @ Murugan &Ors.

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, which categorically held that it was outside the

jurisdiction of the trial court, to provide a specific term punishment or till the

3 Sessions Case No. 130/2014 - Orders dated 13.11.2017 (conviction) and 23.12.2017

(sentence)

4 [2015] 14 SCR 613: (2016) 7 SCC 1 (hereafter ‘Sriharan’)

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end of ordinary life, as an alternative to the death penalty. It was urged that this

aspect, however, was overlooked by the High Court – which was reason enough

to set aside the erroneous decision.

6.It was urged that the High Court had, in its impugned judgment, while

dismissing the appeal on conviction, also rejected the arguments made on

sentencing, without proper consideration. Reliance was placed on Section

386(b)(ii) and (iii) of the CrPC to argue that adjudication and examination of

the order on sentence was still necessary, even when order of conviction has

been upheld or modified under Section 386(b)(i); the appellate court had to

specifically hear the accused on the quantum and nature of sentence imposed.

While doing so, it is imperative to call for the report by the Officer under the

Probation of Offenders Act, and/or psychological assessment report, to

adjudicate the same.

7.Ms. Arora submitted that weight had to be given to mitigating

circumstances, to guide sentencing discretion; relevant factors being – age at

which the offence was committed, likelihood of convict reforming in jail, etc.

Reliance was placed on this court’s decisions in Amit v. State of Maharashtra

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and Laxman Naskar v. West Bengal

6

. Counsel submitted that there was strong

evidence supporting good and normal social behaviour, reformation, and

possibility of reintegration into society, as per the probation officer’s report, jail

conduct report, and psychologist’s report – all of which were prepared in

5 [2003] Supp. 2 SCR 285: (2003) 8 SCC 93 [para 10]

6 [2000] Supp. 3 SCR 62: (2000) 7 SCC 626 [para 6]

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compliance of this court’s orders. That the appellants had no criminal

antecedents was also a factor in their favour. It was pointed out that the

appellant Vikas Chaudhary, was below 18 years of age at the time of

kidnapping and murder but had attained majority during the alleged ransom

calls. Therefore, the benefit of juvenile was denied to him, and the conviction

was based solely on circumstantial evidence.

8.Counsel also relied on judgments of this court, which elaborated on

sentencing policy in the case of imposing death penalty. In Rajendra

Prahladrao Wasnik v. State of Maharashtra

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, a three-judge bench of this court

emphasised the importance of determining whether the accused,

notwithstanding their crime, can be reformed, rehabilitated, and reintegrated,

and that the activity of obtaining this information is essential, and must be

undertaken. It was argued that the mitigating circumstances, and report of the

probation officer were neither considered by the trial court, nor High Court.

Counsel stressed on the importance of the theory of reformation through

punishment and submitted that the special category of sentence for serious

crimes where death sentence is substituted with life imprisonment for a fixed

number of years (as evolved in Swamy Shraddananda (2) v. State of

Karnataka

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, and upheld in Sriharan), still requires consideration of these

factors. Reliance was also placed on Santosh Kumar Satishbhushan Bariyar v.

7 [2018] 14 SCR 585: (2019) 12 SCC 460 [para 47] (hereafter ‘Rajendra Prahladrao

Wasnik’)

8 [2008] 11 SCR 93: (2008) 13 SCC 767 [para 94-95] (hereafter ‘Swamy

Shraddananda’)

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State of Maharashtra

9

, State of Haryana v. Jagdish

10

, Ramesh v. State of

Rajasthan

11

, Birju v. State of MP

12

, Shankar Kisanrao Khade v. State of

Maharashtra

13

, Anil @ Anthony Arikswamy Joseph v. State of Maharashtra

14

,

Raju Jagdish Paswan v. State of Maharashtra

15

, Satish @ Sabbe v. State of

UP

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, and Mohd Firoz v. State of MP

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.

State’s contentions

9.Mr. Chirag M. Shroff, learned counsel for the State, contended that the

conviction based on concurrent findings, and sentence imposed was

commensurate in the present case, which was a cold-blooded murder. It was

submitted that the act of abduction committed in a clandestine manner and the

thought process that guided the series of events, was executed with preplanning

and premeditation. This was evidenced by the fact that the deceased was

murdered on 19.01.2003, and the family was made to believe that their son was

alive, and in view of which they regularly demanded ransom from the family.

Reliance was placed on Arvind Singh v. State of Maharashtra

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for the

submission that if a mere threat for the purpose of ransom or otherwise becomes

9 [2009] 9 SCR 90: (2009) 6 SCC 498 [para 127-128] (hereafter ‘Santosh Kumar

Satishbhushan Bariyar’)

10 [2010] 3 SCR 716: (2010) 4 SCC 216 [para 41, 44-46]

11 [2011] 4 SCR 585: (2011) 3 SCC 685 [para 66, 69, 76]

12 [2014] 1 SCR 1047: (2014) 3 SCC 421 [para 20]

13 [2013] 6 SCR 949: (2013) 5 SCC 546

14 [2014] 3 SCR 34: (2014) 4 SCC 69 [para 33] (hereafter ‘Anil @ Anthony Arikswamy

Joseph’)

15 (2019) 16 SCC 380 [para 20]

16 2020 SCC OnLine SC 791 [para 13]

17 (2022) 7 SCC 433 [para 60]

18 (2021) 11 SCC 1 [para 94, 98, 101, 102]

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reality, and the victim is done to death, then if the sessions court had passed a

specified sentence which is upheld by the High Court, intervention by this court

was unwarranted.

10.It was pointed out that the gruesome nature of the murder of a minor

victim (nearly 18 years), despite the appellants being educated and belonging to

well-to-do families, reflected that they were well aware and had full knowledge

of their actions – of kidnapping, murder, and finally, disposing of the body by

burning and dumping the remains in a pond. These circumstances, it was

argued, justified that this was a cold-blooded murder, which fell within the

gravest of grave category of cases.

11.Counsel conceded that this court in Sriharan (supra) held that only the

High Court or Supreme Court had the power to pass a sentence in excess of life

imprisonment, but lesser than capital punishment; however, it was pointed out

that this court had also denied in that judgment, the proposition that the court

awarding punishment should merely impose the punishment of death or life

imprisonment, as prescribed in the CrPC. Therefore, merely because the

sessions court had exercised such power, did not vitiate the sentence altogether.

Instead, it was contended that the fact that the High Court had affirmed the

sentence, meant the spirit of the law laid down in Sriharan (supra) had been

given effect to. Reliance was placed on Gauri Shankar v. State of Punjab

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wherein in view of the grotesque nature of the crime, this court had upheld the

19 (2021) 3 SCC 380

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session’s court order on sentencing, which had been passed in excess of the

scope of its powers.

12.Mr. Shroff also submitted that the VIMHANS report submitted pursuant

to this court’s directions, was a neutral report which could not be relied on as

demonstrating ‘mitigating circumstances’ as it cannot speak to the mental state

of the appellants, at the time of commission of the offences. It does not

necessarily support any prospect of rehabilitation or reformation.

Analysis and Reasoning

13.In Bachan Singh v. Union of India

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, this court upheld the imposition of

capital sentence, subject to the caveat that it should be invoked in the rarest of

rare cases. The court, in its later judgments sought to evolve a principled

approach towards capital sentencing. In Machhi Singh v. State of Punjab

21

 this

court, building upon the observations in Bachan Singh, observed that a balance

sheet of “aggravating and mitigating circumstances” needs to be drawn where

“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”. The court also laid down a broad

two-pronged approach:

“(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?”

20 [1983] 1 SCR 145: (1980) 2 SCC 684

21 [1983] 3 SCR 413: (1983) 3 SCC 470

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14.During the last two decades or so, however, the capital sentencing

decisions adopted no symmetrical approach; this led to the court to lament, on

more than one occasion, that the exercise of considering aggravating and

mitigating circumstances (which Bachan Singh had highlighted) had become

more of a formality. In Santosh Kumar Satishbhushan Bariyar (supra), this

court enunciated a two-step process to decide whether a convict deserved the

death sentence: first, that the case belonged to the “rarest of rare” category, and

second, that the option of life imprisonment would simply not suffice. The

aggravating and mitigating circumstances – according to the first step, were to

be identified and considered equally. The court, in the second step, was to

consider whether the alternative of life imprisonment was unquestionably

foreclosed as the sentencing aim of reformation was unattainable, for which

the State was obliged to provide material. In Shankar Kisanrao Khade (supra)

the court fashioned ‘the crime’; ‘the criminal’ and ‘the R&R test’ (rarest of rare

test) which emphasized the need to look intensively into all factors. This court

also highlighted that in many previous decisions, sentencing was resorted to

without considering mitigating circumstances, and without any material on the

possibility of reformation of the convict.

The decision in Sriharan

15.In Swamy Shraddananda (supra) this court had to decide the appropriate

sentence to be imposed in a case, where two judges had differed on the issue of

imposition of capital sentence. The court considered its previous Constitution

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Bench ruling in Gopal Vinayak Godse v. State of Maharashtra

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, observations

in other judgments (such as Dalbir Singh v. State of Punjab

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, Subash

Chander v. Krishan Lal

24

; Shri Bhagwan v. State of Rajasthan

25

;  State of

Madhya Pradesh v. Ratan Singh

26

and other cases). The court had, in Swamy

Shraddananda (supra), observed as follows [SCR, p. 143-144]:

“65. […] The legal position as enunciated in  Kishori Lal v. King Emperor,

(1945) 58 LW 251 ,  Gopal Vinayak Godse v. State of Maharashtra, (1961)

3 SCR 440; Maru Ram v. Union of India, (1981) 1 SCR 1196;  State of

M.P. v. Ratan Singh, (1976) 3 SCC 470 and  Shri Bhagwan v. State of

Rajasthan, (2001) 6 SCC 296 and the unsound way in which remission is

actually allowed in cases of life imprisonment make out a very strong case

to make a special category for the very few cases where the death penalty

might be substituted by the punishment of imprisonment for life or

imprisonment for a term in excess of fourteen years and to put that category

beyond the application of remission.

66. The matter may be looked at from a slightly different angle. The issue of

sentencing has two aspects. A sentence may be excessive and unduly harsh

or it may be highly disproportionately inadequate. When an appellant

comes to this Court carrying a death sentence awarded by the trial court

and confirmed by the High Court, this Court may find, as in the present

appeal, that the case just falls short of the rarest of the rare category and

may feel somewhat reluctant in endorsing the death sentence. But at the

same time, having regard to the nature of the crime, the Court may strongly

feel that a sentence of life imprisonment subject to remission normally

works out to a term of 14 years would be grossly disproportionate and

inadequate. What then should the Court do? If the Court's option is limited

only to two punishments, one a sentence of imprisonment, for all intents and

purposes, of not more than 14 years and the other death, the Court may feel

tempted and find itself nudged into endorsing the death penalty. Such a

course would indeed be disastrous. A far more just, reasonable and proper

course would be to expand the options and to take over what, as a matter of

fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years'

imprisonment and death. It needs to be emphasised that the Court would

take recourse to the expanded option primarily because in the facts of the

case, the sentence of 14 years' imprisonment would amount to no

punishment at all.”

22 [1961] 3 SCR 440

23 [1979] 3 SCR 1059: (1979) 3 SCC 745

24 [2001] 2 SCR 864: (2001) 4 SCC 458

25 [2001] 3 SCR 656: (2001) 6 SCC 296

26 [1976] Supp. 1 SCR 552: (1976) 3 SCC 470

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16.The appropriateness of imposing a punishment (termed as a special or

fixed term sentence) in serious crimes, which carried, as a sentencing option,

the death penalty (apart from life sentence), was considered by this court in

Sriharan. The majority decision, after considering the previous decisions, held

that the ratio in Swamy Shraddananda (supra) was correct. Commenting on the

decision in Swamy Shraddananda, the court held in Sriharan that [SCR, p. 701;

and 710-711]:

“87. […] What all it seeks to declare by stating so was that within the

prescribed limit of the punishment of life imprisonment, having regard to the

nature of offence committed by imposing the life imprisonment for a

specified period would be proportionate to the crime as well as the interest

of the victim, whose interest is also to be taken care of by the Court, when

considering the nature of punishment to be imposed.

********************* ***************

104. We, therefore, reiterate that the power derived from the Penal Code for

any modified punishment within the punishment provided for in the Penal

Code for such specified offences can only be exercised by the High Court

and in the event of further appeal only by the Supreme Court and not by any

other court in this country. To put it differently, the power to impose a

modified punishment providing for any specific term of incarceration or till

the end of the convict's life as an alternate to death penalty, can be

exercised only by the High Court and the Supreme Court and not by any

other inferior court.

105. Viewed in that respect, we state that the ratio laid down in Swamy

Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767] that a special

category of sentence; instead of death; for a term exceeding 14 years and

put that category beyond application of remission is well founded and we

answer the said question in the affirmative. We are, therefore, not in

agreement with the opinion expressed by this Court in Sangeet v. State of

Haryana, (2013) 2 SCC 452 that the deprival of remission power of the

appropriate Government by awarding sentences of 20 or 25 years or

without any remission as not permissible is not in consonance with the law

and we specifically overrule the same.”

17.It is thus clear that Sriharan (supra), approved an alternative third

sentencing option in cases where the accused are convicted of serious and grave

crimes which carried with it the option of capital sentence. Realising that a life

sentence per se can lead to early release of accused upon their undergoing the

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minimum sentence prescribed under Section 433A, and highlighting that the

asymmetry in state rules with respect to minimum incarceration in different

kinds of life sentences, this court decided to retain to itself (and the High

Courts) the option of imposing what Sriharan termed as “special” or “fixed

term sentences”. This was seen as serving the following purposes:

(a)As a feasible alternative in capital cases where the Court was of the

opinion that death sentence is inappropriate, and:

(b)That the Court was of the opinion that there were elements in the

crime and or the conduct of the criminal which warranted imposition

of a mandatory sentence beyond a minimum of 14 years prescribed

by the Code of Criminal Procedure.

(c)Where the court felt, independently, that the serious nature of the

crime and the manner of its commission warranted a special

sentence, whereby the state’s discretion in releasing the offender,

should be curtailed so that the convict is not let out before

undergoing a specified number of years, of incarceration.

18.It is hence clear that the trial courts, are foreclosed from imposing such a

modified or specific term sentence, or life imprisonment for the remainder of

the convict’s life, as an alternative to death penalty. The court, when trying an

offence punishable by death penalty or life imprisonment, has merely these two

options. While the principles evolved in Sriharan (supra) are clear, there are

nevertheless issues which still remain unexplored and unresolved. Whenever the

state proposes and urges for imposition of death sentence, it has to, per force

provide material to facilitate the court to carry out the exercise of balancing the

aggravating factors with the mitigating circumstances – the test propounded in

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Bachan Singh and examined in many cases; the recent trend being that the

reformative element acquires equal attention. The obligation to carry out this

balancing interest is upon the courts imposing the sentence in the first instance,

i.e., the trial courts; the prosecution (per Bachan Singh) is also under an

obligation to show that the mitigating circumstances are absent

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especially that

there are no chances of reformation of the accused. Since this exercise is

mandated whenever a heinous capital crime is committed, at the stage of

conviction, the court has no idea that the prosecution may urge for capital

sentence. When that stage occurs, and the prosecution seeks a capital sentence,

the court has to carry out the exercise of conducting a review of aggravating

circumstances (which are already on the record, being factors that lead to the

conviction of the accused) and balancing the mitigating circumstances (which

are not matters of the record and have to be adduced by the prosecution and the

accused).

19.This court, in Manoj v. State of Madhya Pradesh

28

, considered the

judgments reported as Rajendra Prahladrao Wasnik (supra), Chhannu Lal

27 The observations in Bachan Singh, listing mitigating factors are that

“(1) That the offence was committed under the influence of extreme mental or

emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to

death.

(3) The probability that the accused would not commit criminal acts of violence as

would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State

shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was

morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person, (7) That

the condition of the accused showed that he was mentally defective and that the said defect

impaired his capacity to appreciate the criminality of his conduct.”

28 [2022] 9 SCR 452: (2023) 2 SCC 353

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Verma v. State of Chhattisgarh

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, Anil @ Anthony Arikaswamy Joseph (supra)

and several other decisions, the Law Commission’s reports, and held that [SCR,

p. 573-576]: 

“212. The goal of reformation is ideal, and what society must strive towards

– there are many references to it peppered in this court’s jurisprudence

across the decades – but what is lacking is a concrete framework that can

measure and evaluate it. Unfortunately, this is mirrored by the failure to

implement prison reforms of a meaningful kind, which has left the process of

incarceration and prisons in general, to be a space of limited potential for

systemic reformation. The goal of reformative punishment requires systems

that actively enable reformation and rehabilitation, as a result of nuanced

policy making. As a small step to correct these skewed results and facilitate

better evaluation of whether there is a possibility for the accused to be

reformed (beyond vague references to conduct, family background, etc.),

this court deems it necessary to frame practical guidelines for the courts to

adopt and implement, till the legislature and executive, formulate a coherent

framework through legislation. These guidelines may also offer guidance or

ideas, that such a legislative framework could benefit from, to systematically

collect and evaluate information on mitigating circumstances.

Practical guidelines to collect mitigating circumstances

213. There is urgent need to ensure that mitigating circumstances are

considered at the trial stage, to avoid slipping into a retributive response to

the brutality of the crime, as is noticeably the situation in a majority of

cases reaching the appellate stage.

214. To do this, the trial court must elicit information from the accused and

the state, both. The state, must - for an offence carrying capital punishment -

at the appropriate stage, produce material which is preferably collected

beforehand, before the Sessions Court disclosing psychiatric and

psychological evaluation of the accused. This will help establish proximity

(in terms of timeline), to the accused person’s frame of mind (or mental

illness, if any) at the time of committing the crime and offer guidance on

mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh. Even for

the other factors of (3) and (4) - an onus placed squarely on the state –

conducting this form of psychiatric and psychological evaluation close on

the heels of commission of the offence, will provide a baseline for the

appellate courts to use for comparison, i.e., to evaluate the progress of the

accused towards reformation, achieved during the incarceration period.

215. Next, the State, must in a time-bound manner, collect additional

information pertaining to the accused. An illustrative, but not exhaustive list

is as follows:

a) Age

b) Early family background (siblings, protection of parents, any history of

violence or neglect)

c) Present family background (surviving family members, whether married,

has children, etc.)

29 [2018] 14 SCR 355: (2019) 12 SCC 438

15

d) Type and level of education

e) Socio-economic background (including conditions of poverty or

deprivation, if any)

f) Criminal antecedents (details of offence and whether convicted, sentence

served, if any)

g) Income and the kind of employment (whether none, or temporary or

permanent etc);

h) Other factors such as history of unstable social behaviour, or mental or

psychological ailment(s), alienation of the individual (with reasons, if any)

etc. This information should mandatorily be available to the trial court, at

the sentencing stage. The accused too, should be given the same opportunity

to produce evidence in rebuttal, towards establishing all mitigating

circumstances.

216. Lastly, information regarding the accused’s jail conduct and

behaviour, work done (if any), activities the accused has involved

themselves in, and other related details should be called for in the form of a

report from the relevant jail authorities (i.e., probation and welfare officer,

superintendent of jail, etc.). If the appeal is heard after a long hiatus from

the trial court’s conviction, or High Court’s confirmation, as the case may

be – a fresh report (rather than the one used by the previous court) from the

jail authorities is recommended, for an more exact and complete

understanding of the contemporaneous progress made by the accused, in the

time elapsed. The jail authorities must also include a fresh psychiatric and

psychological report which will further evidence the reformative progress,

and reveal post-conviction mental illness, if any.

217. It is pertinent to point out that this court, in Anil v State of

Maharashtra has in fact directed criminal courts, to call for additional

material:

“Many a times, while determining the sentence, the courts take it for

granted, looking into the facts of a particular case, that the accused

would be a menace to the society and there is no possibility of

reformation and rehabilitation, while it is the duty of the court to

ascertain those factors, and the State is obliged to furnish materials

for and against the possibility of reformation and rehabilitation of the

accused. The facts, which the courts deal with, in a given case, cannot

be the foundation for reaching such a conclusion, which, as already

stated, calls for additional materials. We, therefore, direct that the

criminal courts, while dealing with the offences like Section 302 IPC,

after conviction, may, in appropriate cases, call for a report to

determine, whether the accused could be reformed or rehabilitated,

which depends upon the facts and circumstances of each case.”

We hereby fully endorse and direct that this should be implemented

uniformly, as further elaborated above, for conviction of offences that carry

the possibility of death sentence.”

20.The imperative to conduct evaluation of mitigating circumstances at the

trial stage, “to avoid slipping into a retributive response to the brutality of the

16

crime” which this court noticed was frequently occurring in several cases, was

underlined, and it was categorically held that the court had to elicit information

from the state and the accused. The prosecution also is mandated to produce

before the Sessions Court, material disclosing psychiatric and psychological

evaluation of the accused, which is to preferably be collected beforehand. At the

stage when the trial court is informed that the prosecution intends to press for

imposition of capital sentence, the evaluation should be insisted upon; the state

is under a duty to present all objective materials, as mentioned in Manoj (supra),

having regard to the decision in Bachan Singh (supra) and importantly, the fact

that it is in a position to actually gather the materials. Its task is to present the

facts- relating to the accused, which are favourable and unfavourable, for the

court to impose a just sentence.

21.Since the judgment in Sriharan (supra) reserves the power to impose

special or fixed term sentences (which may be longer than the minimum

specified in Section 433A CrPC – i.e., may extend to considerably long periods,

such as 30 years), with only the high courts and this court, it is imperative that

this exercise is carried out even in cases where the accused might eventually not

be imposed the death sentence. To put it simply - although the trial courts are

not empowered to impose such special sentences, yet at the stage when they

arrive at findings of guilt in the case of a heinous offence, what would be the

nature of the sentence imposed eventually, is unknown; therefore, the

prosecution would have to inform the court, and present relevant materials (as

17

elaborated in Manoj), in case the death sentence is proposed. In that event, if

ultimately death sentence is not imposed, it is open to the state (or the aggrieved

party, under Section 372 CrPC) to appeal against the trial court judgment on the

point of sentence; at that stage the evaluation before the High Court would be

nuanced, and informed with full materials, about the convict, which otherwise it

would not have the benefit of. Further, if considerable time has elapsed since

the trial stage at which this exercise was undertaken, the appellate court should

direct that a fresh attempt be made, to take into account the contemporaneous

progress, if any, made by the convict

30

.

22.In view of the above discussion, it is held that wherever the prosecution is

of the opinion that the crime an accused is convicted for, is so grave that death

sentence is warranted, it should carry out the exercise of placing the materials,

in terms of Manoj, for evaluation. In case this results in imposition of death

sentence, at the stage of confirmation, the High Court would have the benefit of

independent evaluation of these materials. On the other hand, if death sentence

is not imposed, then, the High Court may still be in a position to evaluate, if the

sentence is adequate, and wherever appropriate and just, impose a special or

fixed term sentence, in the course of an appeal by the state or by the

complainant/informant. Given the imperative need for such material to form a

part of the court’s consideration, it has to be emphasized that in case the trial

court has failed to carry out such exercise (for whatever reason), the High Court

30 See Manoj, para 216 (SCR).

18

has to call for such material while considering an appeal filed by the state or

complainant for enhancement of sentence (whether resulting in imposition of

capital punishment, or a term sentence).

Sentence in the present case

23.Recently, this court, on three previous occasions, was faced with a similar

situation – wherein the trial court had sentenced the accused to undergo life

imprisonment for the remainder of their life

31

, or without entitlement to

remission for a fixed term (of not less than 20 years)

32

. This, in light of the

judgment in Sriharan (supra) was clearly beyond the scope of jurisdiction that

the trial court is empowered with. However, the High Courts in each of the three

cases, had affirmed the conviction and sentence. In these cases, the offending

part of the life imprisonment sentence (i.e., remainder of life, or fixed term

without entitlement of remission) was either set aside, and life imprisonment

simplicitor was imposed

33

, or based on the facts and circumstances, modified to

a term sentence

34

.

31 Narendra Singh @ Mukesh @ Bhura Vs. The State of Rajasthan SLP (Crl.)

No.7830/2021, dd 28.02.2022

https://main.sci.gov.in/supremecourt/2021/13046/13046_2021_43_21_33781_Order_28-Feb-

2022.pdf; Baljeet Singh @ Jeeta v. State of Haryana SLP (Crl.) No. 11787-11788/2019, dd

02.08.2022

https://main.sci.gov.in/supremecourt/2018/36451/36451_2018_4_3_36998_Order_02-Aug-

2022.pdf.

32 Manohar @ Manu v. The State of KarnatakaCrl. Appeal No.564 of 2021, dd

06.07.2021

https://main.sci.gov.in/supremecourt/2021/5351/5351_2021_39_15_28288_Order_06-Jul-

2021.pdf

33 Narendra Singh @ Mukesh @ Bhura (see n 31) and Manohar @ Manu (see n 32).

34 Baljeet Singh @ Jeeta (see n 31).

19

24.During the course of hearing this matter, it was noticed that there was

limited material regarding the mitigating circumstances of the appellants;

existing jail reports and probation officer reports, were also outdated. So, on

05.08.2021, this court directed the preparation and submission of three reports,

to facilitate fairer consideration of the question of sentence. These were: a

report of the probation officer, report on nature of work done while in jail (by

the jail administration), and a psychological and psychiatric evaluation report

(by Director of VIMHANS); these are on record, and form part of this court’s

consideration, to ascertain the individualised sentences appropriate in the

present case. Counsel for the appellants have also placed on record, written

submissions outlining the mitigating factors and justification for a modification,

on the question of sentence.

25.The appellant Vikas Chaudhary, was merely 18-19 years old at the time

of offence and is currently about 37-38 years old. As per the social investigation

report (probation report), he comes from an educated, urban, ‘middle-class’

family background; he has passed 10

th

standard, but his 12

th

standard was

interrupted by the facts relating to this offence. He continues to undertake

written work during his time in custody. He has undergone more than 17 years

of actual sentence, during which he has demonstrated satisfactory conduct (as

per jail reports dated 30.11.2017 and 18.11.2020). The report dated 08.09.2021,

regarding work done in jail is positive and mentions that he has worked as

Sahayak in the Langar, jail control room, and ward, during his incarceration

20

period, for which he has received appreciation certificates. Barring three

episodes of aggression which were prior to 2012, there is no other negative

instance on the record. The VIMHANS report too, did not disclose any cause

for concern. The latest probation report dated 06.09.2021 is encouraging;

similar to the earlier report (dated 01.12.2017) given the to the trial court, the

report mentions that the appellant had strong continuing relations with his

parents and relatives. His parents have accepted him and remain worried about

his future. The interviews with the neighbours of his family home, i.e., members

of the community, were also positive. He has no other criminal antecedents. The

report further suggests that the appellant has ample scope for reformation and

reintegration into society, and that the appellant could look after his parents and

lead a normal social life.

26.The appellant, Vikas Sidhu, who was in his early 20s at the time of

offence, is currently 40-41 years old, and has undergone over 17 years of actual

imprisonment. He is a graduate of Delhi University and was a medical

representative at the time of the offence. His family consisted of five people;

however, he has lost his father who was a government servant, and his younger

brother, to illness. He too grew up in an urban, ‘middle-class’, educated family

setting. He is married, and enjoys the affection of his mother, spouse, and elder

sister. During his incarceration period, he worked as a volunteer teacher under

the ‘Padho aur Padhao’, and at different times as a sahayak at the legal cell, jail

control room, IGNOU study center, vocational training institute, bakery unit,

21

jail dispensary; he also worked in the paper making unit of jail factory for a few

months. In addition to having attended some vocational training and cultural

programmes, he has received numerous appreciation certificates for work done

in jail – especially most recently, for his efforts during the COVID-19 crisis. As

per request made in the initial report received from VIMHANS, Vikas Sidhu

underwent a more detailed psychometric evaluation – the results of which

reflected no clinical signs or symptoms of psychopathology; there is no negative

inference made in the report. He has no criminal antecedents and continues to

enjoy a strong bond with his family members. In his case as well, the probation

report suggested that there was sufficient scope for his reformation and

reintegration into society, and that he showed promise in looking after his wife

and aged mother.

27.This court is also cognizant of the nature of the crime that the appellants

committed. They kidnapped the deceased, an 18-year-old boy, and sought

ransom in exchange. The prosecution was able to prove that these appellants

strangulated the kidnapped boy, burnt his body to eliminate evidence, and

disposed of the body in a nala. The sole motive for this crime seems to have

been greed. Undoubtedly, there was premeditation in the commission of the

crime. These are the aggravating circumstances.

28.Both appellants in the present case, share some commonalities: they were

of young age at the time of offence, hail from educated backgrounds, and they

continue to enjoy the love and affection of their families, each of which have a

22

good standing and strong ties within the communities they live in. While the

material relating to their lives and social conditions pre-conviction do not offer

an explanation as to the cause for commission of offence, it can certainly be

said that the material available regarding their conduct post-conviction, remains

encouraging. They have applied themselves during the time of incarceration and

used their time to contribute meaningfully – for which they have each received

commendations. Their psychological and psychiatric evaluations were

concluded to be normal, without cause for concern. A strong case is made out in

support of the appellants’ probability of reform (as already evidenced by their

jail conduct), and reintegration into society. The state, too, has not indicated any

material to the contrary, regarding this aspect.

29.In view of the totality of the facts and circumstances, and for the above

reasons, this court is of the opinion that it would be appropriate to modify the

sentence awarded to both appellants to a minimum term of 20 years actual

imprisonment. The appeals are partly allowed in the above terms.

…………………………………..J.

[K.M. JOSEPH]

…………………………………..J.

[S. RAVINDRA BHAT]

NEW DELHI;

23

APRIL 21, 2023

24

ITEM NO.1501 COURT NO.13 SECTION II-C

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 2276/2022

VIKAS CHAUDHARY Appellant(s)

VERSUS

THE STATE OF DELHI Respondent(s)

([ HEARD BY : HON. K.M. JOSEPH AND HON. S. RAVINDRA BHAT,

JJ. ]

IA No. 74072/2019 - EXEMPTION FROM FILING O.T.)

WITH

Crl.A. No. 2277/2022 (II-C)

IA No. 82535/2020 - EXEMPTION FROM FILING AFFIDAVIT

IA No. 60781/2019 - PERMISSION TO FILE ADDITIONAL

DOCUMENTS/FACTS/ANNEXURES)

Date : 21-04-2023 These matters were called on for hearing

today.

For Appellant(s) Ms. Meenakshi Arora, Sr. Adv.

Mr. Mohit D. Ram, AOR

Mr. Krishan Kumar, Adv.

Ms. Sunita Arora, Adv.

Ms. Monisha Handa, Adv.

Mr. Rajul Shrivastav, Adv.

Mr. Shivam Bedi, Adv.

Mr. Anubhav Sharma, Adv.

Mr. Gopal Jha, AOR

For Respondent(s) Mr. Chirag M. Shroff, AOR

Mr. Shailendra P. Singh, Adv.

Mr. Rishabh Shivhase, Adv.

UPON hearing the counsel the Court made the following

25

O R D E R

Hon’ble Mr. Justice S. Ravindra Bhat pronounced the

reportable judgment of the Bench comprising Hon’ble Mr.

Justice K.M. Joseph and His Lordship.

This court is of the opinion that it would be appropriate

to modify the sentence awarded to both appellants to a minimum

term of 20 years actual imprisonment. The appeals are partly

allowed in terms of the signed reportable judgment.

Pending application(s), if any, are disposed of.

(HARSHITA UPPAL) (MATHEW ABRAHAM)

SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)

(Original signed Reportable Judgment is placed on the file)