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REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION  

REVIEW PETITION (CRIMINAL) NO. 308 OF 2011

IN  

CRIMINAL APPEAL NO 379 OF 2009

MD. MANNAN @ ABDUL MANNAN         …PETITIONER

   VERSUS  

              ...RESPONDENT STATE OF BIHAR  

O R D E R

This  application  is  for  reopening  the  Review  Petition  (Crl.)

No.308 of 2011 and for review of the final judgment and order dated

20.04.2011 passed by this Court dismissing Criminal Appeal No.379

of 2009 filed by the review petitioner and confirming his  conviction,

inter alia, under Section 201, 366A, 376 and 302 of the Indian Penal

Code (IPC) and, inter alia, affirming  the death sentence imposed on

him under Section 302 of the IPC.   

2.     It appears that the petitioner, a mason, was engaged at the

residence of  the deceased victim’s grand father.  On 28.9.2004 at

about 2.00 p.m., the petitioner gave money to the victim to bring

betel for him from Hanuman Chowk.  A little while later the petitioner

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also went to Hanuman Chowk, picked up the victim, an eight year old

girl,  on  his  bicycle  and  left  talking  with  her.   The  victim and the

petitioner were seen together by witnesses.  

3. The victim did not return home, whereupon frantic searches

were made.  The victim was not found.   It was learnt that the victim

had  been  last seen with the petitioner.  

4. The officer in-charge of Bahera Police Station, under which the

village  of  the  petitioner  falls,  was  informed  that  the  victim  was

missing.    In course of  investigation the petitioner, who had earlier

been identified as the man with whom the victim had last been seen,

riding on a bicycle, allegedly made a confessional statement in the

presence of witnesses, confessing that he had raped and murdered

the victim.   The confessional statement was signed by the petitioner.

5. The petitioner is alleged to have disclosed the place where he

had raped and killed the victim.   It is the case of the prosecution,

that  on  the  basis  of  information  given  by  the  petitioner,  the

Investigating Officer went to the village Izaar Haat Bandh, where the

dead body of the victim was recovered from the spot shown by the

petitioner, amidst wheat and ‘arahar’ fields.

6.  The dead  body  was  identified as  that  of  the  victim.   The

doctor who conducted the post mortem opined that death was due to

asphyxia and haemorrhage as a result of strangulation within 8 to 24

hours from the time of post mortem examination.   The doctor also

deposed that upon examination the vaginal swab collected from the

victim  showed  “few  intact  spermatozoa”.  The  medical  evidence

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clearly  established that  the victim had been raped and murdered.

However no DNA analysis of the spermatozoa was conducted by the

prosecution.  

7. By a judgment and order rendered on 29.5.2007 in Sessions

Trial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. Case

No.13 of 2004, the Additional District and Sessions Judge (Fast Track

Court) No.30, on consideration of the evidence on record, held the

petitioner guilty of charges under Sections 366A, 376, 302 and 201 of

IPC.  On the same day after hearing the applicant on the question of

sentence, the Fast Track Court sentenced the petitioner to undergo

rigorous imprisonment for 10 years for charge under Section 366A

IPC, rigorous imprisonment for life for charge under Section 376 IPC,

rigorous imprisonment for 7 years for charge under Section 201 IPC

and  death  sentence  for  charge  under  Section  302  IPC.  All  the

sentences except the sentence for the charge under Section 302 IPC

were to run concurrently till execution of the death sentence under

Section 302 IPC, whereby the convict was to be hanged by the neck

till his death.

8.  The learned Additional District and Sessions Judge, Fast Track

court directed that the proceedings of the case be transmitted to the

High  Court  of  Judicature  at  Patna  for  confirmation  of  the  death

sentence.  The petitioner filed an appeal being Criminal Appeal (DB)

No.963 of 2007 in the High Court against his conviction and sentence.

9. The death sentence reference being Death Reference No.6 of

2007 was heard by the Division Bench of the High Court along with

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the Criminal Appeal (DB) No. 963 of 2007.   The Division Bench, after

considering the materials on record, arrived at the finding that the

charges against the petitioner under Sections 366A,  376, 302 and

201 had been proved beyond doubt and upheld the conviction.  The

appeal  was  dismissed  and  the  death  penalty  awarded  to  the

petitioner by the Trial Court was confirmed.

10. The petitioner filed a Special Leave Petition in this Court to

appeal against the judgment and order of the High Court.   Leave was

duly granted.

11. The  appeal  being  Criminal  Appeal  No.379  of  2009  was

dismissed by this Court, by the judgment and order dated 20.4.2011,

of which review has been sought, and the death sentence confirmed

with the observation that the case fell in the category of the rarest of

rare cases.

12. The petitioner filed a petition for review of the said judgment

and order dated 20.4.2011.  The said review petition was dismissed

by circulation by the same two judges on 24.8.2011.

13. By a judgment and order dated 2.9.2014 in W.P. (Crl.) No. 77

of 2014 (Mohd. Arif v. The Registrar of the Supreme Court1),  a

Constitution Bench of this Court held that, that review petitions in

cases of death sentences should be heard in Open Court, by a three-

Judge  Bench.  The  Constitution  Bench  specifically  permitted  the

reopening of review petitions in all cases where review petitions had

been dismissed by circulation.

1 (2014) 9 SCC 737

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14. There can be no doubt that in view of the judgment of this

Court  in  Mohd. Arif (supra) the petitioner is  entitled to have the

application  for  review,  which  had  been  dismissed  by  circulation,

reopened and heard in Open Court.

15. In this petition for review we need not consider the merits of

the case, there being concurrent findings of the Trial Court, the High

Court and of this Court.  This review is only restricted to the question

of whether death sentence should be commuted to life imprisonment.

16. In  Bachan Singh vs.  State of  Punjab2,  this  Court,  while

upholding the validity of death sentence held, that imprisonment for

life was the rule and death sentence an exception, to be imposed in

the  “rarest  of  rare”  cases,  recording  special  reasons.  In  Bachan

Singh  (supra),  this  Court  in  effect  held  that  before  exercising

discretion  to  impose  the  extreme  penalty  of  death  sentence,

aggravating  and  mitigating  circumstances  are  required  to  be

considered.  Some of the mitigating factors would be the extreme

mental  or  emotional  disturbance in  which  the  offence might  have

been committed,  the  possibility  that  the  accused  would  not  be  a

continuing  threat  to  society,  the  possibility  of  reformation  and

rehabilitation  of  the  accused,  mental  defect  or  disorder  of  the

accused etc.

17. In  Rajesh  Kumar  vs.  State  (through  Govt.  of  NCT  of

Delhi)3, this Court observed:-

“83. The ratio in Bachan Singh has received approval by

2 (1980) 2 SCC 684 3 (2011) 13 SCC 706

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the international  legal  community  and has been very favourably  referred  to  by  David  Pannick  in  Judicial Review of the Death Penalty: Duckworth (see pp. 104- 05). Roger Hood and Carolyn Hoyle in their treatise on The Death  Penalty,  4th  Edn.  (Oxford)  have also  very much appreciated the Bachan Singh ratio (see p. 285). The concept of “rarest of rare” which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty.

84. Reference in this connection may also be made to the  right  based  approach  in  exercising  discretion  in death penalty as suggested by Edward Fitzgerald,  the British  Barrister.  [Edward  Fitzgerald:  The  Mitigating Exercise in Capital Cases in Death Penalty Conference (3-5  June),  Barbados:  Conference  Papers  and Recommendations.] It has been suggested therein that right approach towards exercising discretion in capital cases is to start from a strong presumption against the death penalty.  It  is  argued that  “the presence of  any significant mitigating factor justifies exemption from the death penalty even in the most gruesome cases” and Fitzgerald argues:

“Such  a  restrictive  approach  can  be  summarised  as follows:  The  normal  sentence  should  be  life imprisonment.  The  death  sentence  should  only  be imposed instead of the life sentence in the ‘rarest of rare’  cases  where  the  crime  or  crimes  are  of exceptional  heinousness  and  the  individual  has  no significant  mitigation  and  is  considered  beyond reformation.”

    (Quoted in The Death Penalty, Roger Hood and Hoyle, 4th       Edn., Oxford, p. 285.)

86. Taking an overall view of the facts in these appeals and  for  the  reasons  discussed  above,  we  hold  that death  sentence  cannot  be  inflicted  on  the  appellant since the dictum of the Constitution Bench in Bachan Singh is that the legislative policy in Section 354(3) of the 1973 Code is that for a person convicted of murder, life  imprisonment is  the rule  and death sentence, an exception,  and the mitigating circumstances must  be given  due  consideration.  Bachan  Singh  further mandates that in considering the question of sentence the court must show a real and abiding concern for the dignity of human life which must postulate resistance to taking life through law’s instrumentality. Except in the

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“rarest of rare cases” and for “special reasons” death sentence cannot be imposed as an alternative option to the imposition of life sentence”.

18. In  Rajesh  Kumar (supra),  the  accused  was  convicted  of

assault and murder of two helpless children in the most gruesome

manner.  This Court held that death sentence could not be inflicted,

reiterating that life imprisonment was the rule and death sentence an

exception only  to be imosed in  the “rarest  of  rare cases” and for

“special reasons” when there were no mitigating circumstances.  

19. Section 235 of the Criminal Procedure Code (Cr.P.C.), reads as

follows:-

“235.  Judgment  of  acquittal  or  conviction.—(1)  After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) 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.”

20. Section  235 (2)  of  the  CrPC is  not  a  mere  formality.   It  is

obligatory on the part of the learned trial Judge to hear the accused

on the question of sentence and deal with it.  To quote Bhagwati J. in

Santa Singh vs. State of Punjab4.

“2.  …...This  provision  is  clear  and  explicit  and  does  not admit of any doubt.  It requires that in every trial before a court of sessions, there must first be a decision as to the guilt of the accused.  The court must, in the first instance, deliver a judgment convicting or acquitting the accused.  If the accused is acquitted, no further question arises.  But if he is convicted, then the court has to “hear the accused on the question of sentence, and then pass sentence on him according to law”.  When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it  is only after

4  (1976) 4 SCC 190

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hearing  him  that  the  court  can  proceed  to  pass  the sentence.

3. This new provision in Section 235(2) is in consonance with the modern trends in penology and sentencing procedures. There was no such provision in the old Code.  Under the old Code, whatever the accused wished to submit in regard to the sentence had to be stated by him before the argumentss concluded and the judgment was delivered.  There was no separate stage for being heard in regard to sentence.  The accused had to produce material and make his submissions in  regard  to  sentence  on  the  assumption  that  he  was ultimately  going  to  be  convicted.   This  was  most unsatisfactory.  The legislature, therefore, decided that it is only  when  the  accused  is  convicted  that  the  question  of sentence  should  come  up  for  consideration  and  at  that stage, an opportunity should be given to the accused to be heard in regard to the sentence.  Moreover, it was realised that  sentencing  is  an  important  stage  in  the  process  of administration  of  criminal  justice-  as  important  as  the adjudication  of  guilt-and  it  should  not  be  consigned  to  a subsidiary  position  as  if  it  were  a  matter  of  not  much consequence.  It should be a matter of some anxiety to the court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the court.

…..The reason is that a proper sentence is the amalgam of  many  factors  such  as  the  nature  of  the  offence,  the circumstances-extenuating  or  aggravating-  of  the  offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobreity and social adjustment, the emotional and mental  condition  of  ‘the  offender,  the  prospects  for  the rehabilitation of the offender, the possibility of treatment or training of  the  offender,  the  possibility  that  the  sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence.  These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. 4.   ….The hearing on the question of  sentence, would be rendered devoid of  all  meaning and content  and it  would become  an  idle  formality,  if  it  were  confined  merely  to

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hearing  oral  submissions  without  any  opportunity  being given  to  the  parties  and  particularly  to  the  accused,  to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court.

21. In Santa Singh (supra), Bhagwati, J. set aside the sentence of

death and remanded the case to the Sessions Court with a direction

to  pass  appropriate  sentence  after  giving  an  opportunity  to  the

petitioner in  the aforesaid case of  being heard with regard to the

question of  sentence, in accordance with the provisions of  Section

235(2) CrPC as interpreted in Santa Singh (supra).

22. In Dagdu and Others vs. State of Maharashtra5, a three-

Judge Bench of this Court referred to Santa Singh (supra) and held

that the mandate of Section 235(2) CrPC had to be obeyed in letter

and spirit.  Chandrachud, J.  held:-

“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. That  opportunity  has  to  be  real  and  effective,  which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions  to  the  Court  or  he  may,  on  affidavit  or otherwise, place in writing before the Court whatever he  desires  to  place  before  it  on  the  question  of sentence. The Court may, in appropriate cases, have to adjourn  the  matter  in  order  to  give  to  the  accused sufficient  time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.”

5  (1977) 3 SCC 68

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23. In  Machhi Singh & Others vs. State of Punjab6, this

Court held:-

“38.  …  (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.”

24. In  Santosh Kumar Satishbhushan Bariyar vs. State of   

Maharashtra7, this Court observed and held:-

“157. The doctrine of proportionality, which appears to be the premise whereupon the learned trial  Judge as also  the  High  Court  laid  its  foundation  for  awarding death  penalty  on  the  appellant  herein,  provides  for justifiable  reasoning  for  awarding  death  penalty. However, while imposing any sentence on the accused the  court  must  also  keep  in  mind  the  doctrine  of rehabilitation.  This,  considering Section  354(3)  of  the Code, is especially so in the cases where the court is to determine  whether  the  case  at  hand  falls  within  the rarest of the rare case.

158. The reasons assigned by the courts below, in our opinion,  do  not  satisfy  Bachan  Singh  test.  Section 354(3) of the Code provides for an exception. General rule of doctrine of proportionality, therefore, would not apply. We must read the said provision in the light of Article 21 of the Constitution of India. Law laid down by Bachan  Singh  and  Machhi  Singh  interpreting  Section 354(3) of the Code should be taken to be a part of our constitutional scheme.

159. Although  the  Constitutional  Bench  judgment  of the Supreme Court in Bachan Singh did not lay down any guidelines on determining which cases fall  within the  “rarest  of  rare”  category,  yet  the  mitigating circumstances listed in and endorsed by the judgment give reform and rehabilitation great importance, even requiring  the  State  to  prove  that  this  would  not  be possible, as a precondition before the court awarded a

6  (1983) 3 SCC 470 7  (2009) 6 SCC 498

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death  sentence.  We  cannot  therefore  determine punishment on grounds of proportionality alone. There is  nothing  before  us  that  shows  that  the  appellant cannot reform and be rehabilitated.

162. Further indisputably, the manner and method of disposal  of  the  dead  body  of  the  deceased  was abhorrent and goes a long way in making the present case  a  most  foul  and  despicable  case  of  murder. However, we are of the opinion, that the mere mode of disposal of a dead body may not by itself be made the ground for  inclusion of  a case in  the “rarest  of  rare” category  for  the  purpose  of  imposition  of  the  death sentence.  It  may have to be considered with several other factors.

25. In  Ajay Pandit and Another vs. State of Maharashtra8,

this Court held:-

“47. Awarding death sentence is an exception, not the rule, and only in the rarest of rare cases, the court could award death sentence. The state of mind of a person awaiting  death  sentence  and  the  state  of  mind  of  a person who has been awarded life sentence may not be the same mentally and psychologically.  The court  has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant  factors,  while  questioning  the  accused  and, therefore, committed a gross error of procedure in not properly  assimilating  and  understanding  the  purpose and object behind Section 235(2) CrPC.”

26. In Mohinder Singh vs. State of Punjab9, this Court held:-

“22. The  doctrine  of  “rarest  of  rare”  confines  two aspects and when both the aspects are satisfied only then  the  death  penalty  can  be  imposed.  Firstly,  the case  must  clearly  fall  within  the  ambit  of  “rarest  of rare”  and  secondly,  when  the  alternative  option  is unquestionably  foreclosed.  Bachan  Singh  suggested selection  of  death  punishment  as  the  penalty  of  last resort  when,  alternative  punishment  of  life imprisonment will be futile and serves no purpose.

8  (2012) 8 SCC 43 9  (2013) 3 SCC 294

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23. In life sentence, there is a possibility of achieving deterrence,  rehabilitation  and  retribution  in  different degrees. But the same does not hold true for the death penalty.  It  is  unique  in  its  absolute  rejection  of  the potential  of  convict  to  rehabilitate  and  reform.  It extinguishes  life  and  thereby  terminates  the  being, therefore, puts an end to anything to do with life. This is the big difference between two punishments. Thus, before  imposing  death  penalty,  it  is  imperative  to consider  the  same.  The  “rarest  of  rare”  dictum,  as discussed  above,  hints  at  this  difference  between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to  determine  whether  life  imprisonment  as  a punishment would be pointless and completely devoid of  any reason in  the facts  and circumstances of  the case.  As  discussed  above,  life  imprisonment  can  be said to be completely futile, only when the sentencing aim of  reformation  can  be  said  to  be  unachievable. Therefore,  for  satisfying  the  second  aspect  to  the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme”.

27. In  Panchhi and Others vs. State of U.P.10, this Court

observed:-

“20. … No doubt brutality looms large in the murders in this  case  particularly  of  the  old  and also  the tender- aged child.  It  may  be that  the  manner  in  which  the killings were perpetrated may not  by itself  show any lighter side but that is not very peculiar or very special in  these  killings.  Brutality  of  the  manner  in  which  a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the ‘rarest  of  rare  cases’  as  indicated  in  Bachan  Singh case.”

28. In  Mukesh  and  Another  v.  State  (NCT  of  Delhi)  and

Others11,  a three-Judge Bench of this Court considered the earlier

judgments of this Court referred to above and deemed it appropriate

10  (1998) 7 SCC 177 11  (2017) 3 SCC 717

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to give opportunity to the accused to file affidavits to bring on record

mitigating circumstances for reduction of the sentence.  

29. In  Haru Ghosh v.  State  of  W.B.12,  this  Court  commuted

death sentence to life imprisonment in case of a dastardly murder of

two helpless persons for no fault of theirs. This Court, however, in

commuting  death  sentence  took  into  consideration  the  following

factors:-

i. There was no pre-mediation on the part of the accused;

ii. The act was on the spur of the moment;

iii.The accused was not armed with any weapon;

iv. It  was unknown under what  circumstances the accused

had entered the house of the deceased and what prompted

him to assault the boy; and

v. The  cruel  manner  in  which  the  murder  was  committed

could not be the guiding factor and the accused himself had

two minor children.  

30. In  Haru Ghosh  (supra),  this  Court observed, “….the cruel

manner  in  which  the  murder  was  committed  and  the  subsequent

action on the part of the accused in severing the parts of the body of

the deceased, do not by themselves become the guiding factor in

favour of death sentence.”

31. In  Lehna v.  State of Haryana13,  this  Court  observed and

held that the mental condition of the accused which led to the assault

could not be ignored, though the same may not be relevant to judge

12  (2009) 15 SCC 551 13  (2002) 3 SCC 76

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culpability.  It is certainly a factor while considering the question of

sentence.

32. In the aforesaid case even though three lives had been lost by

reason  of  the  crime,  this  Court  modified  the  punishment  by

commuting death sentence to life imprisonment, observing that there

was  no  evidence  of  any  diabolic  planning  to  commit  the  crime,

though the act was cruel.  

33. Learned  counsel  appearing  on  behalf  of  the  applicant

submitted  that  since  his  arrest  on  28.2.2004  the  applicant  has

undergone  about  15  years  in  custody  and  11  years  as  a  convict

sentenced to death, lodged in virtual solitary confinement in a single

cell high security ward in Bhagalpur Prison in Bihar.

34. In  Shatrughan Chauhan and Anr. vs. Union of India &

Ors.14,  this  Court  considered  and  discussed  the  possibility  of

condemned convicts, who are sentenced to death developing mental

disorder, upon reference to relevant provisions of the U.P. Jail Manual

and similar provisions of other jail manuals. This Court observed:

“86. The above materials, particularly, the directions of the United Nations international conventions, of which India  is  a  party,  clearly  show  that  insanity/mental illness/schizophrenia  is  a  crucial  supervening circumstance, which should be considered by this Court in deciding whether in the facts and circumstances of the  case  death  sentence  could  be  commuted  to  life imprisonment. To put it  clear, “insanity” is a relevant supervening factor for consideration by this Court. 87. In addition, after it  is  established that the death convict  is  insane  and  it  is  duly  certified  by  the competent doctor, undoubtedly, Article 21 protects him and such person cannot  be  executed without  further clarification  from  the  competent  authority  about  his

14 (2014) 3 SCC  1

15

mental  problems.  It  is  also  highlighted  by  relying  on commentaries  from  various  countries  that  civilised countries  have  not  executed  death  penalty  on  an insane person.  ………. In  view of  the well-established laws  both  in  the  national  as  well  as  international sphere, we are inclined to consider insanity as one of the  supervening  circumstances  that  warrants  for commutation of death sentence to life imprisonment.”

35. In Shatrughan Chauhan (supra), this Court also referred to

Sunil Batra vs. Delhi Administration & Ors.15,  and reiterated

that if solitary confinement was illegal, the same punishment could

not  be  scuffled into  the  legal  system by  naming  it  differently.   If

prolonged  solitary  confinement  of  a  death  sentence  convict  is  a

ground for commutation of death sentence, solitary confinement, in

effect,  on  ground  of  high  security  or  otherwise  would  also  be  a

ground for commutation of death sentence.  

36. Counsel further submitted that the Trial Court has convicted

the petitioner and sentenced him to death considering the inhuman

and brutal nature of the crime alone.  The findings of the Trial Court

with regard to the criminal antecedents is not based on any cogent

materials.    The Trial Court merely recorded the submission of the

public  prosecutor  that the petitioner had been accused in another

trial in which the petitioner had “managed his acquittal in the garb of

compromise”(para 29).

37. Citing  the  judgment  of  this  Court  in  Birju  vs.  State  of

Madhya  Pradesh16 Counsel  submitted,  and  rightly  that  only

convictions  which  have  attained  finality  can  be  considered  as

15 (1978) 4 SCC 494 16 (2014) 3 SCC 421

16

“aggravating circumstances”.

38. Counsel submitted that the Trial Court did not give opportunity

to the petitioner to show mitigating circumstances, notwithstanding a

duty  to  hear  the  accused  under  Section  235(2)  of  the  Code  of

Criminal Procedure (Cr.PC) on the question of sentence.

39. As  argued  by  learned  counsel  appearing  on  behalf  of  the

petitioner, the accused had the right to be provided with legal aid at

all  stages,  including the  stage of  consideration  of  the  question  of

sentence.  After the conviction of the petitioner,  he should have been

given the benefit of being accompanied by a social worker to guide

and counsel him and also to help him to get an effective hearing on

the question of sentence.

40. In this case, the petitioner was not accompanied by a social

worker.   Furthermore  the  legal  aid  provided  to  the  petitioner  was

inadequate.  The legal aid lawyer representing the applicant argued

against  the  conviction,  but  did  not  seek  the  opportunity  to  draw

attention of the Court to mitigating circumstances for imposition of

sentence of life imprisonment in place of death. He only submitted

that the petitioner had falsely been implicated.

41. For  effective  hearing  under  Section  235(2)  of  the  Code  of

Criminal Procedure, the suggestion that the court intends to impose

death penalty should specifically be made to the accused, to enable

the  accused  to  make  an  effective  representation  against  death

sentence, by placing mitigating circumstances before the Court.   This

has not been done.  The Trial Court made no attempt to elicit relevant

17

facts.  Nor did the Trial Court give any opportunity to the petitioner

the  opportunity  to  file  an  affidavit  placing  on  record  mitigating

factors.  As such the petitioner has been denied an effective hearing.

42. Contrary  to  the  dictum of  this  Court,  inter  alia,  in  Dagdu

(supra) and  Santa Singh (supra) the petitioner was not given a

real, effective and meaningful hearing on the question of sentence

under Section 235(2) of the Cr.P.C. The death sentence imposed on

the petitioner is liable to be commuted to life imprisonment on this

ground.

43. The  records  reveal  that  after  the  judgment  and  order  of

conviction was pronounced on 29.5.2007, the matter was directed to

be  put  up  on  31.5.2007  for  hearing  on  the  point  of  sentence.

However, on the same day i.e., 29.5.2007 itself  the petitioner was

produced from jail custody and death sentence was imposed.  The

order  imposing  the  death  sentence  is  extracted  hereinbelow  for

convenience:-

“26. Convict  Md.  Mannan  @  Abdul  Mannan produced from jail custody.  

27. Heard learned P.P and learned lawyer for the convict  on the point  of  passing sentence against the convict.

28. Learned  lawyer  for  the  convict  has  again repeated in his submission that the convict has been falsely implicated in this case.

29. On the other  learned P.P.  has  firmly asserted that the guilt of the convict in respect of the charges framed against him has been proved beyond shadow of all  reasonable  doubts  which  can  only  be  treated  as barbarous  act  and  crime  against   the  whole  society beyond  imagination.   It  is  also  submitted  that  the

18

convict was an accused in another S.T. No.172/93 which was  disposed  by  the  Court  of  Learned  District  & Sessions Judge,  Darbhanga on 18.9.1993 in which the convict  managed  his  acquittal  in  the  garb  of compromise.   It  is  submitted  by  the  learned  P.P.  to award maximum sentence against  the convict  in  this case.

30. Considering  the  submission  of  the  respective sides and nature of the charges against the convict I find that the guilt of the convict is not only heinous and barbarous but crime against the society in general.  The convict has been found guilty of rape and murder of a minor girl committed in a gruesome and premeditated manner after kidnapping her which can only be treated as inhuman and brutal act.

31. The purpose of law will be served by awarding maximum sentence against the convict.   Convict Md. Mannan  @  Abdul  Mannan  is  therefore  sentenced  to undergo R.I. for 10 years for charge u/s 366 A IPC, R.I. for life for charge u/s 376 I.P. and R.I. for seven years for charge  u/s  201 IPC  and awarded  death  sentence  for charge u/s 302 IPC.  All the sentence except sentence for  charge  u/s  302  IPC  shall  run  concurrently  till execution of  death sentence for charge u/s  302 I.P.C. whereby the convict shall be hanged by the neck till his death.

32.  Let  entire  proceeding  of  this  case  be transmitted  to  the  Hon’ble  High  Court,  Patna  for confirmation of capital punishment.”

44. On a perusal of the order of sentence, it is patently clear that

the learned lawyer representing the petitioner only submitted that

the petitioner had falsely been implicated in the case. He did not at

all make any submission with regard to the sentence.  He did not

seek further time to prepare himself, though the question of life and

death of a convict was involved.  The Trial Court proceeded on the

basis  of  the  submission of  the learned Public  Prosecutor  that the

charges had been proved beyond  reasonable doubt.

19

45. The Trial Court found, and rightly,  that the crime committed

was  barbarous,  and  a  crime  against  society,  beyond  imagination.

The question is whether death penalty should have been imposed.   

46. The Trial Court has apparently been swayed by the submission

of  the  learned  Public  Prosecutor  that  the  convict,  that  is,  the

petitioner, had been an accused in another Sessions Trial being ST

No.172/93 which was disposed of by the Court of the learned District

and  Sessions  Judge,  Darbhanga  on  18.9.1993.  The  Trial  Court

commented that  “the convict managed his acquittal in the garb of

compromise”.    

47.  The Trial Court has apparently not perused the order dated

18.9.1993 passed by the Court of  the District  and Sessions Judge,

Darbhanga on 18.9.1993. The petitioner having been acquitted by a

Court of law, the Trial Court ought not to have been swayed by the

unsubstantiated submission of the learned Public Prosecutor that the

convict “had managed” his acquittal.  

48. The Trial Court found the guilt of the convict i.e. the petitioner,

not  only  heinous  and  barbarous,  but  a  crime  against  society  in

general, as he had been found guilty of rape and murder of a minor

girl,  committed  in  a  gruesome  and  per-meditated  manner,  after

kidnapping her, which could only be termed as inhuman and brutal.

49. There can be no doubt that rape and murder of a 8 year old

girl  shocks the conscience.   It  is  barbaric.   There  is,  however,  no

evidence to support the finding that the murder was pre-meditated.

The petitioner did not carry any weapon.  Moreover, the Trial Court

20

has apparently not considered the question of whether the crime is

the  rarest  of  rare  crimes  as  mandated  by  the  Supreme  Court  in

Bachan Singh (supra).

50. The reasoning of the High Court for confirming the extreme

penalty of death sentence is extracted hereinbelow for convenience:-

“26. The trial court has awarded the extreme penalty of death sentence  to  the  appellant  on  the  basis  of  submissions  in respect of criminal antecedents of the appellants and also on the finding that the guilt is not only heinous and barbarous but crime against the society in general.   It  has been submitted that the criminal antecedents of the appellant should not have been taken into consideration by the trial court and hence the special  reasons  give  by  the  trial  court  for  awarding  death penalty is vitiated in law.   

27. I  have  considered  the  entire  facts  and  the  aforesaid submissions for  deciding whether the death penalty awarded to the appellant should be confirmed or not.  In this regard it is noticed  that  appellant  is  a  matured  man aged about  42-43 years.  He has committed the heinous and barbarous crime of rape and murder of a girl  aged about 7 years who was thin built and of 4’ height.  Such a child was incapable of arousing lust  in  normal  situation.   She  was  kidnapped  in  a  planned manner because she was innocent and could not understand the design of the appellant.  She became helpless victim of a diabolic  middle aged man whom the child  could trust as an elder person.  The medical evidence shows the cruel manner of causing injuries on the face, nails and body of the child at the time of committing rape which was followed by murder.  This was  all  pre-planned  as  is  apparent  from  the  manner  of kidnapping and selection of  a lonely place where crime was committed and body concealed.  Crime of this nature against a child girl is definitely a crime against the society.  The facts of the case, the offences taken together along with the age of the victim and the age of the appellant clearly bring the case in the category of ‘rarest of the rare cases” in which interest of justice requires award of maximum penalty.  In such a case award of a lesser  punishment  would  not  be  appropriate  and  adequate. Hence  even  after  ignoring  the  material  regarding  criminal antecedents  of  the  appellant,  I  am  of  the  view  that  the appellant  deserves  extreme  penalty  of  death.   Hence,  the death penalty awarded to the appellant by the trial  court  is confirmed and the reference is answered in affirmative.  The appeal of the appellant is dismissed.”

21

51. As  argued  by  learned  counsel  appearing  on  behalf  of  the

petitioner, the High Court found the offence to be in the category of

rarest of the rare cases, having regard to the nature of the offence

and the age of the victim.  The fact that no criminal antecedents had

been  brought  on  record  has  casually  been   brushed  aside  as

irrelevant.

52.   Counsel  submitted,  and rightly,  that  the  High Court  failed  to

appreciate that the Trial Court had erred in law in awarding death

penalty, by proceeding on the basis that the petitioner had a criminal

history, when he had been acquitted.

53. The High Court upheld the death penalty by concluding that

the convict deserved death penalty “even after ignoring the material

regarding criminal antecedents of the appellant”.   The High Court

has not  apparently  considered the  mitigating circumstances.   This

Court confirmed the death sentence on consideration of the brutality

and heinousness of the crime and the age of the victim and formed

opinion that the petitioner was a menace to the society and would

continue to be so.  He could not be reformed.

54. Counsel submitted that the brutality of the crime and age of

the  victim  was  not  ground  enough  to  inflict  death  sentence.

Furthermore, the opinion of this Court that the petitioner would be a

menace to society and could not be reformed had no basis.  Learned

counsel  submitted  that  the  petitioner  had  been  convicted  on

circumstantial evidence, based on faulty investigation.

22

55. Counsel  submitted  that  even  though  Dr.  P.K.  Das  (4th

Prosecution Witness) had collected the vaginal swab of the victim,

which upon examination showed “few intact spermatozoa”, no DNA

analysis was conducted or sought to be conducted by the prosecution

for  which  adverse  inference  might  be  drawn.   In  support  of  the

aforesaid  submission,  counsel  placed  reliance  on  Kalu  Khan  v.

State of  Rajasthan17 and Santosh Kumar (supra).

56. Notwithstanding  the omission of the prosecution to conduct

DNA analysis the Trial Court may have found the evidence sufficient

to convict  the petitioner.   Moreover,  as rightly argued by Counsel,

the quality of evidence is a factor relevant to sentencing.

57. In Ramesh and Others v. State of Rajasthan18, this Court

observed and held:-

“68. Practically, the whole law on death sentence was  referred to in Santosh Kumar case. In para 56, the Court observed: (SCC p. 527)

‘56.  …  The  court  must  play  a  proactive  role  to record all relevant information at this stage. Some of the information relating to crime can be culled out  from the  phase  prior  to  sentencing  hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of  convict,  etc.  Quality  of  evidence  is  also  a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio- economic  background of  the  offender.  This  issue was  also  raised  in  the  48th  Report  of  the  Law Commission.’”

58. In Ram Deo Prasad v. State of Bihar19, this Court referred 17 (2015) 16 SCC 492  18  (2011) 3 SCC 685 19  (2013) 7 SCC 725

23

to and relied upon the earlier judgments of this Court in  Santosh

Kumar Satishbhushan Bariyar (supra) and Ramesh and Others

(supra) and  reaffirmed  that  the  quality  of  evidence  was  also  a

relevant factor in considering the question of death sentence.  In the

aforesaid case, this Court felt it unsafe to confirm the death sentence

awarded for rape and murder of a four year old child.

59. In  this  case,  the  conviction  of  the  petitioner  is  based  on

circumstantial  evidence  and  the  alleged  extra  judicial  confession

made by the petitioner to the police in course of investigation, on the

basis of which certain recoveries were made.  There is no forensic

evidence against the petitioner.  It would, in our view, be unsafe to

uphold the imposition of death sentence on the petitioner.

60. In  Sushil  Sharma vs.  State  (NCT of  Delhi)20 this  Court

considered the peculiar facts of the case and did not award the death

penalty since the only evidence was circumstantial and there were

some factors that were to the advantage of the appellant.  This Court

held:

“101.  We  notice  from the  above  judgments  that  mere brutality of the murder or the number of persons killed or the  manner  in  which  the  body  is  disposed  of  has  not always  persuaded  this  Court  to  impose  death  penalty. Similarly,  at  times,  in  the  peculiar  factual  matrix,  this Court  has  not  thought  it  fit  to  award  death  penalty  in cases, which rested on circumstantial evidence or solely on approver’s evidence.”   

61. In  Kalu  Khan  (supra),  this  Court  referred  to  its  earlier

decision in Swamy Shraddananda (2) @ Murali Manohar Mishra

20 (2014) 4 SCC 317

24

vs.  State of Karnataka21 and held,  in  the facts  of  the case,  the

balance  of  circumstances  introduced  an  uncertainty  in  the

“culpability calculus” and therefore there was an alternative to the

imposition  of  the  death  penalty.  Accordingly,  the  sentence  was

commuted to imprisonment for life.

62. In  Santosh Kumar (supra) this Court clearly held that while

there is no prohibition in law in awarding a death sentence in a case

of  circumstantial  evidence,  but  that  evidence  must  lead  to  an

exceptional case.  It was said:

“167. The entire prosecution case hinges on the evidence of  the  approver.   For  the  purpose  of  imposing  death penalty, that factor may have to be kept in mind.  We will assume that in Swamy Shraddananda (20, this Court did not  lay  down  a  firm  law  that  in  a  case  involving circumstantial evidence, imposition of death penalty would not  be  permissible.   But,  even  in  relation  thereto  the question which would arise would be whether in arriving at a conclusion some surmises,  some hypothesis  would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play.  Even where sentence  of  death  is  to  be  imposed  on  the  basis  of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case.”

63. In  Sebastian @ Chevithiyan vs.  State of  Kerala22,  this

Court held:

“18.  We  are  of  the  opinion  that  in  the  background  of these facts, the death penalty ought to be converted to imprisonment for life but in terms laid down by this Court in Swamy Shraddanada (2) vs. State of Karnataka [(2008) 13  SCC  767]  as  his  continuance  as  a  member  of  an ordered society is uncalled for..”

64. Counsel  finally  submitted  that  the  legal  aid  lawyer

21 (2008) 13 SCC 767 22 (2010) 1 SCC 58

25

representing  the  petitioners  had  a  positive  onus  to  lead evidence

regarding the possibility of reformation of the petitioner which he did

not discharge.  The evidence on reformation had to be independent

of the circumstances of the crime.   In this context, reliance has been

placed on Rajesh Kumar (supra), Santosh Kumar Satishbhushan

Bariyar (supra) and Lehna (supra).

65. Counsel  argued  that  legal  representation  provided  to  the

petitioner  was  ineffective  at  all  stages.    The  petitioner  was  not

represented by counsel before the Trial Court, at the time of framing

of charge on 21.2.2004.  On 6.6.2005 the petitioner made a request

for legal aid.  During the sentencing the Counsel did not even seek

time to place mitigating circumstances.

66. Learned counsel submitted that legal representation was not

only ineffective in the Trial Court but also before the High Court and

before  this  Court.   Ineffective  legal  representation  to  defend  the

convict on the question of punishment is no legal representation and

a ground for commutation of death sentence.  This proposition finds

support from the judgment of this Court in Ram Deo Prasad (supra).

67. The learned counsel has drawn the attention of this Court to

various  orders  of  this  Court  where  this  Court  has  considered

mitigating  circumstances  and  commuted  death  sentence  in  cases

involving rape and murder of a minor.  Unfortunately, those orders

could not be placed before the Trial Court.  Had those orders been

noticed, the petitioner may not have been awarded death sentence.

68. Relying on Mukesh and Anr. (supra),  Counsel submitted that

26

this  Court  can  call  for  affidavit  or  materials  gathered  by  the

petitioner’s counsel, to fix the lacunae in sentencing in the the courts

below.  The legal representatives of the petitioner have conducted

interviews  with  the  petitioner  and  his  family  members  and  the

following factors require consideration:-

(i) Petitioner has lived his entire life in poverty. (ii) He has never access to formal education (iii) He started working at the age of 15 when his father was  

incapacitated for the remainder of his life after suffering a  stroke.

(iv) Petitioner  was  married  at  the  age  of  22  and  has  five   dependent children

(v)   The petitioner struggled to support his wife and children (vi) The family is in abject poverty.

69. Counsel further submitted that during conversation with the

petitioner, he was found to lose sense of reality and talk about being

possessed by imaginary personalities which he described as jinns.

He  claimed  to  lose  control  over  his  thoughts  and  actions  when

possessed.  Counsel  submitted  that  the  petitioner  suffered  from

instability of mind.  In this regard, it has been submitted that:-

(i)   petitioner had received multiple near fatal injuries in his  head  in  the  course  of  his  life  which  have  caused persistent headaches,  loss of memory and disorientation.

(ii)   The petitioner had been diagnosed and treated for meningeal tuberculosis or Brain TB for a year and half at Darbhanga  Medical  College  around  the  year  1990. Unfortunately records of the time cannot be traced.

(iii)  Socio-economic conditions of the petitioner made it impossible for the petitioner to avail effective treatment for his mental instability.

70. There are transcripts of a consulting psychiatrist, Dr. Kaustubh

27

Joag, who opined  on 29.10.2008 that there is “a strong possibility

that  the  petitioner  might  be  suffering  from organic  (neurological)

and/or  mental  health  issues”  and  advised  an  assessment  on  the

psychosis spectrum and on the organic brain damage which might

have altered his behaviour.  A copy of the opinion  of Dr. Kaustubh

Joag, MD has been made over.   Dr. Joag is apparently a Psychiatrist of

standing  registered  with  Maharashtra  Medical  Council,  who  has

several publications and is recipient of awards.

71. Counsel  submits  that  if  this  Court  gives  the  applicant  an

opportunity, an affidavit  shall  be filed placing the abovementioned

factors  on  record.   Counsel  submits  that  in  the  light  of  deficient

sentencing procedure as pointed out,  this  Court  may consider the

socio-economic  conditions  and  the  mental  illness  concerns  of  the

petitioner as also other mitigating factors such as absence of criminal

antecedents on record, to commute the death sentence imposed on

the petitioner, to life imprisonment.

72. The  review  petition,  filed  about  eight  years  ago,  was  as

observed  above,  dismissed  by  circulation  on  24.08.2011.  Even

thereafter,  for  almost  three  years  the  death  sentence  was  not

executed. This application for reopening the review and hearing the

same in  Open  Court,  has  also  been  pending  for  over  four  years.

Calling for affidavits would only delay the matter.  The petitioner has

for  all  these years  virtually  been in  solitary confinement  on some

ground, may be the ground of his own security.  This Court might also

take judicial notice of the opinion of the psychiatrist, Dr. Joag which

28

reveals that the petitioner is not mentally sound.  

73. In  Lehna  (supra)  Shatrughan Chauhan (supra), this Court

held that mental illness is one of the supervening circumstances in

commutation of death sentence to life imprisonment.  The aforesaid

view was confirmed by this Court  in  Navneet Kaur v. State (NCT

of Delhi) and Another23.

74. The  proposition  of  law  which  emerges  from the  judgments

referred to above is itself death sentence cannot be imposed except

in  the  rarest  of  rare  cases,  for  which  special  reasons  have  to  be

recorded, as mandated in Section 354(3) of the Criminal Procedure

Code.  In deciding whether a case falls  within the category of the

rarest  of  rare,  the  brutality,  and/or  the  gruesome  and/or  heinous

nature of the crime is not the sole criterion. It is not just the crime

which the Court is to take into consideration, but also the criminal,

the state of his mind, his socio-economic background, etc. Awarding

death sentence is an exception, and life imprisonment is the rule.

75. Therefore,  before  imposing  the  extreme  penalty  of  death

sentence, the Court would have to satisfy itself that death sentence is

imperative, as otherwise the convict would be a threat to society, and

that there is no possibility of reform or rehabilitation of the convict,

after giving the convict an effective, meaningful, real opportunity of

hearing on the question of sentence, by producing materials.  

76. The legal assistance provided to the convict at every stage

including the stage of hearing on the question of sentence has to be

23  (2014) 7 SCC 264

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effective  and  even  if  the  accused  has  remained  silent,  the  Court

would  be  obliged  and  duty  bound  to  elicit  relevant  factors.

Opportunity should have been given to the convict to bring on record

mitigating circumstances for reduction of the sentence and a balance

struck between the aggravating and the mitigating circumstance.

77. The petitioner, as observed above, did not get the benefit of

competent legal assistance.  The Trial Court also did not make any

attempt  to  elicit  materials  relevant  to  the  imposition  of  death

sentence. No affidavit was called for. The question of whether there

were any mitigating circumstances was not addressed by the Trial

Court or the appellate courts.

78. As observed above, even though the hearing under Section

235(2) on the question of sentence was fixed on 31.5.2007,  that is,

two  days  after  pronouncement  of  the  judgment  and  order  of

conviction of the petitioner, on 29.5.2007, the hearing was preponed

to 29.5.2007 itself after the petitioner was produced from jail custody

and death sentence was imposed.  

79. Imposition  of  death  sentence  on  the  same  day  after

pronouncement of the judgment and order of conviction may not, in

itself, vitiate the sentence, provided the convict is given a meaningful

and  effective  hearing  on  the  question  of  sentence  under  Section

235(2) Cr.P.C with opportunity to bring on record mitigating factors.  

80. Preponement  by  the  Trial  Court  of  hearing  under  Section

235(2) Cr. P.C at short notice, which is in effect, no notice, appears to

have denied the petitioner an effective hearing.  The hearing under

30

Section 235(2) was reduced to a mere formality.  The Court hastily

proceeded  to  impose  death  sentence  considering  the  dastardly

nature of the crime for which the petitioner had been convicted.  

81. In this case, an eight year old innocent girl  fell  prey to the

carnal desire and lust of the petitioner.  It is not known whether there

was any pre-meditation on the part of the petitioner to murder the

victim.  The circumstances in which he murdered the victim are also

not known. The conviction is based on circumstantial evidence and

extra  judicial  confession  made  by  the  petitioner  to  the  police  in

course  of  investigation.  There  can  be  no  doubt  that  the  crime  is

abhorrent, but it is doubtful as to whether the crime committed by

the petitioner can be termed as “rarest of the rare”.  

82. There  is  also  no  material  at  all,  not  to  speak  of  cogent

material,  to  establish  that  the  appellant  was  incapable  of  being

reformed, that he would remain a threat to society, and that the only

punishment that could be given, having regard to the nature of the

crime, is death sentence.  

83. The mere fact that the petitioner and/or his Counsel chose to

remain  silent  on  the  question  of  sentence  and  did  not  make  any

submission with regard to the same in the Trial Court or the Higher

Appellate Courts,  does not  debar the petitioner from agitating the

existence of mitigating circumstances at this stage, since principles

of  constructive  res  judicata can  have  no  application  to  matters

relating to life and death.  

84. It is open to the Court to either remit the question of sentence

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to  the  Trial  Court  for  fresh  consideration,  after  giving  adequate

opportunity  of  hearing  or  to  remedy  the  breach  by  giving  the

petitioner  a  hearing,  as  held  in  Dagdu  (supra).    On  overall

consideration of  all  relevant facts  and circumstances including the

long pendency of proceedings, we have opted for the latter course.  

85. It  is  well  recognised  worldwide,  that  owing  to  the  difficult

circumstances  prevailing  in  prisons,  such  as,  enforced  solitude,

inadequate  health  care,  loss  of  livelihood  etc.,  prisoners  often

develop  mental  illness  after  their  admission  into  prison.   The

petitioner  has  been  undergoing  prolonged  confinement  which  is

solitary in effect for all practical purposes, though not termed solitary

confinement.  This  Court,  in  the  case  of  Shatrughan  Chauhan

(supra),  while  strongly  relying upon international  Conventions,  has

held “insanity” to be a pertinent supervening factor which must be

taken into consideration by the courts while awarding death penalty.

Moreover, this Court had held therein that Article 21 protects such

persons from being executed without obtaining further clarification

from the  competent  authority.   Lastly,  placing  reliance  upon  laws

operating in both international as well as national arenas, this Court

concluded  that  mental  illness  is  a  relevant  factor  which  warrants

commutation of death sentence to life imprisonment.  

86. It is also pertinent to note herein that the relevant Prison Rules

also recognise the phenomenon of post-conviction mental illness and

state that the execution of such persons shall be deferred, pending

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orders  of  the  Government24.   In  th  elight  of  the  aforesaid

considerations, we conclude that the mental health of the petitioner

at the time of execution is a relevant mitigating factor which must be

taken into consideration in the present case.   As observed above,

there are materials put forward now, in the form of medical opinion,

which show that the petitioner is not mentally sound.  For the reasons

discussed above, we are of the view that it would not be appropriate

and/or safe to affirm the death sentence awarded to the petitioner.

87. In Swamy Shraddananda (supra), this court held:

“92. 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  year’s  imprisonment  would amount to punishment at all.”  

88. In  Mulla  and Another  v.  State  of  U.P.25,  this  Court  has

24  Bihar Prisons Manual 2012, Rule 642 25  (2010) 3 SCC 508

33

affirmed  that  it  is  open  to  the  Court  to  prescribe  the  length  of

incarceration.  This is especially true in cases where death sentence

has been replaced by the life imprisonment.  This Court observed,

“the court should be free to determine the length of imprisonment

which will suffice the offence committed.”

89. Even though life imprisonment means imprisonment for entire

life, convicts are often granted reprieve and/or remission of sentence

after  imprisonment  of  not  less  than  14  years.   In  this  case,

considering the heinous, revolting, abhorrent and despicable nature

of the crime committed by the petitioner, we feel that the petitioner

should undergo imprisonment for life,  till  his natural death and no

remission of sentence be granted to him.

90. We, therefore, commute the death sentence imposed on the

petitioner to life imprisonment, till his natural death, without reprieve

or remission.

91. The review petition is accordingly disposed of.

.……………................................J.  (N. V. RAMANA)

.…………...................................J.  (MOHAN M. SHANTANAGOUDAR)

…………….................................J. (INDIRA BANERJEE)

FEBRUARY 14, 2019 NEW DELHI