R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011                      Page 1 of 43    

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

REVIEW PETITION (CRIMINAL) NOS. 306-307 OF 2013  

IN  

CRIMINAL APPEAL NOS. 145-146 OF 2011  

  Rajendra Pralhadrao Wasnik                       ....Petitioner  

                                                   versus  

        State of Maharashtra                        ....Respondent   

J U D G M E N T  

Madan B. Lokur, J  

1. ‘Sentenced to death’ – these few words would have a chilling effect  

on anyone, including a hardened criminal. Our society demands such a  

sentence on grounds of its deterrent effect, although there is no conclusive  

study on its deterrent impact. Our society also demands death sentence as  

retribution for a ghastly crime having been committed, although again  

there is no conclusive study whether retribution by itself satisfies society.  

On the other hand, there are views that suggest that punishment for a crime  

must be looked at with a more humanitarian lens and the causes for driving  

a person to commit a heinous crime must be explored. There is also a view  

that it must be determined whether it is possible to reform, rehabilitate and

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socially reintegrate into society even a hardened criminal along with those  

representing the victims of the crime.   

2. These conflicting views make it very difficult for courts to take a  

decision and without expert evidence on the subject, courts are ill-equipped  

to form an objective opinion. But, a Constitution Bench of this Court in  

Bachan Singh v. State of Punjab1 has thrown its weight behind a  

humanitarian approach and mandated consideration of the probability of  

reform or rehabilitation of the criminal and required the prosecution to  

prove that it was not possible for the convict to be reformed or  

rehabilitated. However, the Constitution Bench left open a corridor of  

uncertainty thereby permitting, in the rarest of rare cases, the  

pronouncement of a sentence of death.  It is this paradigm that confronts  

us in these petitions.  

Background  

3. The appellant is convicted for the rape and murder of a girl aged 3  

years.  The offence was committed in the intervening night of 2nd and 3rd  

March, 2007.  On the basis of circumstantial evidence led by the  

prosecution, the appellant was found guilty of and convicted for offences  

punishable under Sections 376(2)(f), 377 and 302 of the Indian Penal Code  

(IPC) by the Sessions Judge, Amravati in Sessions Trial No. 183 of 2007  

                                                           1 (1980) 2 SCC 684

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by a judgment dated 6th September, 2008.  

4. With regard to the sentence to be awarded, the Trial Judge heard the  

prosecution and the appellant on 6th September, 2008 and again on 8th  

September, 2008 on which date he passed a preliminary order.  The  

submissions of the Public Prosecutor as well as the learned counsel for the  

defence were heard on that date and reference was made to a decision of  

this Court in Shivaji alias Dadya Shankar Alhat vs. State of  

Maharashtra2.   In the decision rendered by this Court it was observed in  

paragraph 27 of the Report as follows:  

“27. The plea that in a case of circumstantial evidence death  

should not be awarded is without any logic. If the circumstantial  

evidence is found to be of unimpeachable character in establishing  

the guilt of the accused, that forms the foundation for conviction.  

That has nothing to do with the question of sentence as has been  

observed by this Court in various cases while awarding death  

sentence. The mitigating circumstances and the aggravating  

circumstances have to be balanced. In the balance sheet of such  

circumstances, the fact that the case rests on circumstantial  

evidence has no role to play. In fact in most of the cases where  

death sentences are awarded for rape and murder and the like, there  

is practically no scope for having an eyewitness. They are not  

committed in the public view. But the very nature of things in such  

cases, the available evidence is circumstantial evidence. If the said  

evidence has been found to be credible, cogent and trustworthy for  

the purpose of recording conviction, to treat that evidence as a  

mitigating circumstance, would amount to consideration of an  

irrelevant aspect. The plea of the learned amicus curiae that the  

conviction is based on circumstantial evidence and, therefore,  

the death sentence should not be awarded is clearly  

unsustainable.” (Emphasis supplied by us).  

                                                           2 (2008) 15 SCC 269

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Thereafter, the learned Sessions Judge passed an order on 10th September,  

2008 awarding the sentence of death to the appellant.  

5. We have gone through the orders passed on 8th September, 2008 as  

well as on 10th September, 2008 and find that the Sessions Judge has  

primarily discussed the nature and gravity of the offence and certain factors  

personal to the appellant such as the fact the he has a child who is 9 years  

of age and his parents are dependent upon him.  The Sessions Judge also  

took into consideration the fact that there are two other cases pending  

against the appellant under similar provisions of law and he expressed the  

opinion that the pendency of those cases is a circumstance against the  

appellant.  For this, reliance was placed on State of Maharashtra v.  

Shankar Krisanrao Khade3. It may be mentioned, en passant, that the  

view of the Bombay High Court in Shankar was not accepted by this Court  

in Shankar Kisanrao Khade v. State of Maharashtra4 in paragraphs 60  

and 61 of the Report.  

6. On an overall view of the circumstances of the case, the Sessions  

Judge concluded that any alternative option of punishment is  

unquestionably foreclosed and therefore the only sentence that could be  

awarded to the appellant is of capital punishment.  

7. The appellant preferred an appeal against his conviction and  

                                                           3 2008 ALL MR (Cri) 2143   4 (2013) 5 SCC 546

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sentence before the Bombay High Court being Criminal Appeal No. 700  

of 2008. This was heard along with Criminal Confirmation Case No. 3 of  

2008.   Both these were taken up for consideration and the conviction was  

upheld and capital punishment awarded to the appellant was confirmed by  

the High Court by a judgment and order dated 26th March, 2009.    

8. The High Court considered the question of sentence to be awarded  

to the appellant. (We are not concerned with the merits of the conviction).    

It appears from a reading of the judgement that learned counsel for the  

appellant argued in the Bombay High Court on the question of sentence  

awarded to the appellant and the primary submission made for commuting  

the death sentence to life imprisonment was that the case was one of  

circumstantial evidence.  Reference was made to Laxman Naik v. State of  

Orissa5, Dhananjoy Chatterjee alias Dhana v. State of W.B.6, State of  

Maharashtra v. Bharat Fakira Dhiwar7¸ State of Maharashtra v.  

Suresh8, Adu Ram v. Mukna9 and Molai and Another v. State of M.P.10  

9. Thereafter, the High Court held as follows:  

“We have carefully considered the facts of the present case in light  

of the above judicial precedents and find that the learned Trial  

Judge rightly held that the appellant deserved capital punishment.   

The appellants conduct exhibits total disregard for human  

values and shows a totally depraved, brutal and scheming  

mind taking advantage of a helpless child, showing no concern  

                                                           5 (1994) 3 SCC 381  6 (1994) 2 SCC 220  7 (2002) 1 SCC 622  8 (2000) 1 SCC 471  9 (2005) 10 SCC 597  10 AIR 2000 SC 177 = (1999) 9 SCC 581

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that his lust extinguished the flame of life in the child. We,  

therefore, confirm the sentence of death imposed upon the  

appellant for offence punishable under Section 302 of the Penal  

Code.  We also dismiss the convict’s appeal and maintain his  

convictions as well as sentences imposed.” (Emphasis supplied by  

us).    

10. Feeling aggrieved by the decision rendered by the High Court, the  

appellant preferred appeals in this Court being Criminal Appeal Nos. 145-

146 of 2011.  These appeals were dismissed by a judgment and order dated  

29th February, 201211.  

11. Review Petitions were then filed by the appellant being R.P. (C)  

Diary No. 26107 of 2012 which came to be dismissed by an order dated 7th  

March, 2013.  

12. Thereafter, in a completely different case, a Constitution Bench of  

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

India12 considered two basic issues in cases where death sentence had been  

pronounced by the High Court.  These two issues were: (1) whether the  

hearing of cases in which death sentence has been awarded should be by a  

Bench of at least three if not five judges of this Court, and (2) whether the  

hearing of review petitions in death sentence cases should not be by  

circulation, but should only be in open court.  

13. In considering these issues, the Constitution Bench held that  

                                                           11 Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37  12 (2014) 9 SCC 737

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henceforth in every appeal pending in this Court in which death sentence  

has been awarded by the High Court, only a Bench of three judges will hear  

the appeal.  The Constitution Bench was not persuaded to accept the  

submission that the appeal should be heard by five judges.  With regard to  

the oral hearing in open court, it was held that a limited oral hearing ought  

to be given in cases where death sentence is awarded and that would be  

applicable in pending review petitions and such review petitions filed in  

future.  This direction would also apply where a review petition is already  

dismissed but the death sentence is not executed.  In such cases, the convict  

can apply for reopening the review petition within one month from the date  

of the decision rendered by the Constitution Bench.  However, in cases  

where even a curative petition is dismissed, it would not be proper to  

reopen such matters.  

14. In the present appeal, a curative petition had not been filed by the  

appellant and therefore in view of the decision of the Constitution Bench,  

the review petitions were restored by an order dated 24th March, 2015 and  

that is how they have come up for consideration before us after a gap of  

more than 3½ years.  

Submissions  

15. It was submitted by learned counsel for the appellant that there are a  

variety of factors that require to be taken into consideration while awarding

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the death sentence, keeping in mind the view expressed by this Court in  

Bachan Singh. Despite this, learned counsel confined himself to four  

principal contentions before us only on the question of commuting the  

death sentence to one of life imprisonment.  The four contentions urged  

were:  

1. The conviction was based on circumstantial evidence  and in such cases, the death sentence should ordinarily  

not be awarded.      

2. The probability of reform and rehabilitation of the  appellant was not considered either by the Trial Court  

or by the High Court or even by this Court despite  

several decisions mandating such a consideration.  It  

was submitted that there is a probability that the  

appellant can be reformed and rehabilitated.     

3. Vital DNA evidence was not placed before the Trial  Court or taken into consideration contrary to the  

provisions of Section 53-A of the Criminal Procedure  

Code, 1973 (for short ‘Cr.P.C’)13 and Section 164-A of  

                                                           13 Section 53A. Examination of person accused of rape by medical practitioner. – (1) When a person  is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are  reasonable grounds for believing that an examination of his person will afford evidence as to the  commission of such offence, it shall be lawful for a registered medical practitioner employed in a  hospital run by the Government or by a local authority and in the absence of such a practitioner within  the radius of sixteen kilometers from the place where the offence has been committed by any other  registered medical practitioner acting at the request of a police officer not below the rank of a sub- inspector, and for any person acting in good faith in his aid and under his direction, to make such an  examination of the arrested person and to use such force as is reasonably necessary for that purpose.  

(2) The registered medical practitioner conducting such examination shall, without delay, examine such  person and prepare a report of his examination giving the following particulars, namely.–  

(i) the name and address of the accused and of the person by whom he was brought,  (ii) the age of the accused,  (iii) marks of injury, if any, on the person of the accused,  (iv) the description of material taken from the person of the accused for DNA profiling, and   (v) Other material particulars in reasonable detail.  

(3) The report shall state precisely the reasons for each conclusion arrived at.  (4) The exact time of commencement and completion of the examination shall also be noted in the  report.  (5) The registered medical practitioner shall, without delay, forward the report of the investigating  officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents  referred to in clause (a) of sub-section (5) of that section.  

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the Cr.P.C.14    

4. The reference to the past history of the appellant was not  

warranted.       

We propose to deal with the submissions in seriatim.  

Circumstantial evidence  

16. In the cases of Laxman Naik, Dhananjoy Chatterjee and Molai  

referred to by the High Court, there is no discussion one way or the other  

whether the death penalty should or should not be awarded on a conviction  

based on circumstantial evidence. What was discussed was the brutality of  

                                                           14 164A. Medical examination of the victim of rape. –  (1) Where, during the stage when an offence of  committing rape or attempt to commit rape is under investigation, it is proposed to get the person of  the woman with whom rape is alleged or attempted to have been committed or attempted, examined  by a medical expert, such examination shall be conducted by a registered medical practitioner  employed in a hospital run by the Government or a local authority and in the absence of such  a  practitioner, by any other registered medical practitioner, with the consent of such woman or of a  person competent to give such consent on her behalf and such woman shall be sent to such registered  medical practitioner within twenty-four hours from the time of receiving the information relating to  the commission of such offence.  (2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her  person and prepare a report of his examination giving the following particulars, namely:–  

(i) the name and address of the woman and of the person by whom she was brought;  (ii) the age of the woman;  (iii) the description of material taken from the person of the woman for DNA profiling;  (iv) marks of injury, if any, on the person of the woman;  (v) general mental condition of the woman; and  (vi) other material particulars in reasonable detail.  

(3)  The report shall state precisely the reasons for each conclusion arrived at.  (4) The report shall specifically record that the consent of the woman or of the person competent to  give such consent on her behalf to such examination had been obtained.  (5) The exact time of commencement and completion of the examination shall also be noted in the  report.  (6) The registered medical practitioner shall, without delay forward the report to the investigating  officer who shall forward it to the Magistrate referred to in section 173 as part of the documents  referred to in clause (a) of sub-section (5) of that section.  (7) Nothing in this section shall be construed as rendering lawful any examination without the consent  of the woman or of any person competent to give such consent on her behalf.  Explanation. – For the purposes of this section, “examination” and “registered medical practitioner”  shall have the same meanings as in section 53.  

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the crime which warranted the imposition of the death penalty. These  

decisions do not take forward the case of the appellant.  

17. We now consider the cases cited before us by learned counsel for the  

parties on the award of death sentence based on circumstantial evidence.  

18. In Bishnu Prasad Sinha v. State of Assam15 this Court effectively  

accepted the proposition in paragraph 55 of the Report that ordinarily death  

penalty would not be awarded if the connection is proved by circumstantial  

evidence, coupled with some other factors that are advantageous to the  

convict.  It was held as follows:  

“55. The question which remains is as to what punishment should  

be awarded. Ordinarily, this Court, having regard to the nature of  

the offence, would not have differed with the opinion of the  

learned Sessions Judge as also the High Court in this behalf, but it  

must be borne in mind that the appellants are convicted only on the  

basis of the circumstantial evidence. There are authorities for the  

proposition that if the evidence is proved by circumstantial  

evidence, ordinarily, death penalty would not be awarded.  

Moreover, Appellant 1 showed his remorse and repentance even  

in his statement under Section 313 of the Code of Criminal  

Procedure. He accepted his guilt.” (Emphasis supplied by us).  

19. In Aloke Nath Dutta v. State of West Bengal16 the principle that  

death penalty should ordinarily not be awarded in a case arising out of  

circumstantial evidence was broadly accepted along with the rider that  

there should be some “special reason” for awarding the death penalty. It  

                                                           15 (2007) 11 SCC 467  16 (2007) 12 SCC 230

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was held in paragraph 174 of the Report as follows:   

“174. There are some precedents of this Court e.g. Sahdeo v. State  

of U.P. [(2004) 10 SCC 682] and Sk. Ishaque v. State of Bihar  

[(1995) 3 SCC 392] which are authorities for the proposition that  

if the offence is proved by circumstantial evidence ordinarily  

death penalty should not be awarded. We think we should  

follow the said precedents instead and, thus, in place of awarding  

the death penalty, impose the sentence of rigorous imprisonment  

for life as against Aloke Nath. Furthermore we do not find any  

special reason for awarding death penalty which is  

imperative.” (Emphasis supplied by us).    

20. In Swamy Shraddananda v. State of Karnataka17 this Court  

sounded a note of caution in paragraph 87 of the Report that convictions  

based on seemingly conclusive circumstantial evidence should not be  

presumed to be fool-proof. It was held:  

“87.  It has been a fundamental point in numerous studies in the  

field of death penalty jurisprudence that cases where the sole  

basis of conviction is circumstantial evidence, have far greater  

chances of turning out to be wrongful convictions, later on, in  

comparison to ones which are based on fitter sources of proof.  

Convictions based on seemingly conclusive circumstantial  

evidence should not be presumed as foolproof incidences and  

the fact that the same are based on circumstantial  

evidence must be a definite factor at the sentencing stage  

deliberations, considering that capital punishment is unique in  

its total irrevocability. Any characteristic of trial, such as  

conviction solely resting on circumstantial evidence, which  

contributes to the uncertainty in the culpability calculus, must  

attract negative attention while deciding maximum penalty for  

murder.” (Emphasis supplied by us).  

21. In Swamy Shraddananda the view taken by Justice S.B. Sinha was  

that on the facts of the case, death sentence was not warranted but that the  

                                                           17 (2007) 12 SCC 288

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appellant should be awarded life sentence which must be meant as sentence  

for life.  However, Justice Markandey Katju differed on the sentence to be  

awarded and expressed the view that the case was one where the murder  

was cold-blooded, calculated and diabolic.  The learned Judge was of  

opinion that the case fell within the category of rarest of rare cases and it  

would be a travesty of justice if the death sentence is not affirmed.   

Accordingly, the learned Judge affirmed the death sentence.  

22. In view of the difference of opinion with regard to the quantum of  

punishment, the matter was referred to a larger Bench of three learned  

judges. The decision of the larger Bench is reported as Swamy  

Shradddananda (2) v. State of Karnataka18.   

23. The larger Bench took the view that the case was one of  

circumstantial evidence only.  However, considering the entire facts of the  

case, the Bench expressed its opinion on the quantum of punishment taking  

into consideration the gap in imprisonment between life imprisonment  

(which is normally 14 years) and death.  While considering this, it was held  

that in view of the gap, the Court might be tempted into endorsing the death  

penalty but that it would be far more just, reasonable and a proper course  

of action to expand the options and bridge the gap.  This would be a re-

assertion of the Constitution Bench decision in Bachan Singh besides  

                                                           18 (2008) 13 SCC 767

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being in accord with the modern trends of penology. Consequently, the  

death sentence was unanimously substituted by life imprisonment with a  

direction that the convict must not be released from prison for the rest of  

his life or for the actual term as specified in the order, as the case may be.   

The view expressed by Justice S.B. Sinha was endorsed and it was directed  

that the convict shall not be released from prison till the rest of his life.  The  

view expressed by this Court in paragraphs 92 to 95 of the Report is  

reproduced below:  

“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 years' imprisonment would amount to no punishment at all.  

93. Further, the formalisation of a special category of sentence,  

though for an extremely few number of cases, shall have the great  

advantage of having the death penalty on the statute book but to

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actually use it as little as possible, really in the rarest of rare cases.  

This would only be a reassertion of the Constitution Bench  

decision in Bachan Singh [(1980) 2 SCC 684] besides being in  

accord with the modern trends in penology.  

94. In the light of the discussions made above we are clearly of the  

view that there is a good and strong basis for the Court to  

substitute a death sentence by life imprisonment or by a term  

in excess of fourteen years and further to direct that the convict  

must not be released from the prison for the rest of his life or for  

the actual term as specified in the order, as the case may be.  

95. In conclusion, we agree with the view taken by Sinha, J. We  

accordingly substitute the death sentence given to the  

appellant by the trial court and confirmed by the High Court  

by imprisonment for life and direct that he shall not be  

released from prison till the rest of his life. (Emphasis supplied  

by us).”  

24. In Santosh Kumar Satishbhushan Bariyar v. State of  

Maharashtra19 this Court clearly laid down the law in paragraph 167 of  

the Report to the effect 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 (2), 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  

                                                           19 (2009) 6 SCC 498

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imposed on the basis of the circumstantial evidence, the  

circumstantial evidence must be such which leads to an  

exceptional case.” (Emphasis supplied by us).  

25. In Sebastian v. State of Kerala20 there is a brief reference to death  

penalty in a case of circumstantial evidence in paragraphs 17 and 18 of the  

Report. While commuting the death sentence to one of life imprisonment,  

this Court relied upon Swamy Shraddananda (2) and held:  

“17. The learned counsel for the appellant has finally urged that  

the death sentence in the circumstances was not called for. He has  

pointed out that the case rested on circumstantial evidence and  

the death penalty should not ordinarily be awarded in such a case.  

It has further been emphasised that the appellant was a young  

man of 24 years of age at the time of the incident.  

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 Shraddananda (2)  

v. State of Karnataka [(2008) 13 SCC 767] as his continuance as  

a member of an ordered society is uncalled for.” (Emphasis  

supplied by us).  

26. In Ramesh v. State of Rajasthan21 this Court referred to Bariyar and  

in paragraph 68 and paragraph 69 of the Report, it was held:  

“68. ……… The Court, thus, has in a guided manner referred to  

the quality of evidence and has sounded a note of caution that in a  

case where the reliance is on circumstantial evidence, that factor  

has to be taken into consideration while awarding the death  

sentence. This is also a case purely on the circumstantial evidence.  

We should not be understood to say that in all cases of  

circumstantial evidence, the death sentence cannot be given.  

                                                           20 (2010) 1 SCC 58  21 (2011) 3 SCC 685

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69. In fact in Shivaji v. State of Maharashtra this Court had  

awarded death sentence though the evidence was of circumstantial  

nature. All that we say is that the case being dependent upon  

circumstantial evidence is one of the relevant considerations.  

We have only noted it as one of the circumstances in formulating  

the sentencing policy……...” (Emphasis supplied by us).    

27. In Sushil Sharma v. State (NCT of Delhi)22 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. It was held in paragraph 101 of the Report  

as follows:  

“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. Where murder, though brutal, is  

committed driven by extreme emotional disturbance and it does  

not have enormous proportion, the option of life imprisonment has  

been exercised in certain cases…….” (Emphasis supplied by us).  

28. Finally, in Kalu Khan v. State of Rajasthan23 this Court referred to  

Swamy Shraddananda and in paragraph 31 of the Report it was held, on  

the facts of the case, that the balance of circumstances introduces an  

uncertainty in the “culpability calculus” and therefore there was an  

alternative to the imposition of the death penalty.  Accordingly, the  

                                                           22 (2014) 4 SCC 317  23 (2015) 16 SCC 492

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sentence was commuted to imprisonment for life.  

29. The result of the above discussion is that ordinarily, it would not be  

advisable to award capital punishment in a case of circumstantial evidence.  

But there is no hard and fast rule that death sentence should not be awarded  

in a case of circumstantial evidence. The precautions that must be taken by  

all the courts in cases of circumstantial evidence is this: if the court has  

some doubt, on the circumstantial evidence on record, that the accused  

might not have committed the offence, then a case for acquittal would be  

made out; if the court has no doubt, on the circumstantial evidence, that the  

accused is guilty, then of course a conviction must follow. If the court is  

inclined to award the death penalty then there must be some exceptional  

circumstances warranting the imposition of the extreme penalty.  Even in  

such cases, the court must follow the dictum laid down in Bachan Singh  

that it is not only the crime, but also the criminal that must be kept in mind  

and any alternative option of punishment is unquestionably foreclosed. The  

reason for the second precaution is that the death sentence, upon execution,  

is irrevocable and irretrievable.   

30. Insofar as the present case is concerned, learned counsel for the  

appellant did not lay much stress on commuting the death sentence to one  

of life imprisonment only on the basis of the circumstantial evidence on  

record. Therefore, we need not examine the nature of the crime and other

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factors or detain ourselves in this regard. We have referred to the various  

decisions cited by learned counsel only for completeness of the record and  

to reaffirm the view that ordinarily death sentence should not be awarded  

in a conviction based on circumstantial evidence.  

Reform, rehabilitation and re-integration into society  

31. The discussion on the reform or rehabilitation of a convict begins  

with the acknowledgement in Bachan Singh that the probability that a  

convict can be reformed and rehabilitated is a valid consideration for  

deciding whether he should be awarded capital punishment or life  

imprisonment. This Court has also accepted the view that it is for the State  

to prove by evidence that the convict is not capable of being reformed and  

rehabilitated and should, therefore, be awarded the death sentence.  

32. This view has been accepted universally in all the decisions that  

were cited before us by learned counsel for the appellant.  

33. In Prakash Dhawal Khairnar (Patil) v. State of Maharashtra24 the  

probability of reform and rehabilitation of the convict was considered by  

this Court. It was held that the convict did not have any criminal tendency  

and was gainfully employed.  Though the crime was heinous, it would be  

difficult to hold that it was the rarest of rare cases. It could not be held that  

                                                           24 (2002) 2 SCC 35

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the appellant would be a menace to society and there was no reason to  

believe that he could not be reformed or rehabilitated. Accordingly, the  

death penalty was converted into imprisonment for 20 years.  

34. In Lehna v. State of Haryana25 it was held that the special reasons  

for awarding the death sentence must be such that compel the court to  

conclude that it is not possible to reform and rehabilitate the offender. It  

was said in paragraph 14 of the Report as follows:  

14. ……..Death sentence is ordinarily ruled out and can only be  

imposed for “special reasons”, as provided in Section 354(3).  

There is another provision in the Code which also uses the  

significant expression “special reason”. It is Section 361……...  

Section 361 which is a new provision in the Code makes it  

mandatory for the court to record “special reasons” for not  

applying the provisions of Section 360. Section 361 thus casts a  

duty upon the court to apply the provisions of Section 360  

wherever it is possible to do so and to state “special reasons” if it  

does not do so. In the context of Section 360, the “special  

reasons” contemplated by Section 361 must be such as to  

compel the court to hold that it is impossible to reform and  

rehabilitate the offender after examining the matter with due  

regard to the age, character and antecedents of the offender  

and the circumstances in which the offence was committed.  

This is some indication by the legislature that reformation and  

rehabilitation of offenders and not mere deterrence, are now  

among the foremost objects of the administration of criminal  

justice in our country. Section 361 and Section 354(3) have both  

entered the statute-book at the same time and they are part of the  

emerging picture of acceptance by the legislature of the new trends  

in criminology. It would not, therefore, be wrong to assume that  

the personality of the offender as revealed by his age, character,  

antecedents and other circumstances and the tractability of the  

offender to reform must necessarily play the most prominent role  

in determining the sentence to be awarded. Special reasons must  

have some relation to these factors……..” (Emphasis supplied by  

us).  

                                                           25 (2002) 3 SCC 76

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35. In Bariyar this Court referred to the law laid down in Bachan Singh  

to the effect that capital punishment should be awarded only in the rarest  

of rare cases and then held in paragraph 66 of the Report that there must be  

clear evidence to indicate that the convict is incapable of reform and  

rehabilitation. It was held as follows:  

“66. 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  

will be pointless and completely devoid of 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 exception 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. This analysis can only be done with rigour when the court  

focuses on the circumstances relating to the criminal, along with  

other circumstances. This is not an easy conclusion to be  

deciphered, but Bachan Singh sets the bar very high by  

introduction of the rarest of rare doctrine.” (Emphasis supplied by  

us).  

36. In Ramesh a reference was made to Shivaji and Bachan Singh in  

paragraph 69 of the Report and it was held while reiterating the view  

expressed in Bariyar that the reformation and rehabilitation of a convict is  

a mitigating circumstance for the purposes of awarding punishment and the  

State should, by evidence prove that the convict was not likely to be  

reformed.

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37. In Sandesh v. State of Maharashtra26 this Court once again  

acknowledged the principle that it is for the prosecution to lead evidence  

to show that there is no possibility that the convict cannot be reformed.  

38. Similarly, in Mohinder Singh v. State of Punjab27 it was held in  

paragraph 23 of the Report as follows:  

“……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.” (Emphasis  

supplied by us).  

39. In Birju v. State of Madhya Pradesh28 this Court explained the  

necessity of considering the probability of reform and rehabilitation of the  

convict by referring to the provisions of the Probation of Offenders Act,  

1958 where a convict is placed under probation in a case where there is a  

possibility of reform. It was held in paragraph 20 of the Report:  

“20. In the instant case, the High Court took the view that there  

was no probability that the accused would not commit criminal  

acts of violence and would constitute a continuing threat to the  

society and there would be no probability that the accused could  

be reformed or rehabilitated……. Courts used to apply reformative  

theory in certain minor offences and while convicting persons, the  

courts sometimes release the accused on probation in terms of  

Section 360 CrPC and Sections 3 and 4 of the Probation of  

Offenders Act, 1958. Sections 13 and 14 of the Act provide for  

appointment of Probation Officers and the nature of duties to be  

performed. Courts also, while exercising power under Section 4,  

call for a report from the Probation Officer. In our view, while  

                                                           26 (2013) 2 SCC 479  27 (2013) 3 SCC 294  28 (2014) 3 SCC 421

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awarding sentence, in appropriate cases, while hearing the accused  

under Section 235(2) CrPC, courts can also call for a report from  

the Probation Officer……….. Courts can then examine whether  

the accused is likely to indulge in commission of any crime or  

there is any probability of the accused being reformed and  

rehabilitated.” (Emphasis supplied by us).  

40. In Anil v. State of Maharashtra29 this Court implemented the reform  

and rehabilitation theory. In fact, in paragraph 33 of the Report a direction  

was issued that while dealing with offences like Section 302 of the IPC,  

the criminal courts may call for a report to determine whether the convict  

could be reformed or rehabilitated. This Court noted the duty of the  

criminal courts to ascertain whether the convict can be reformed and  

rehabilitated and it is the obligation of the State to furnish materials for and  

against the possibility of reform and rehabilitation. It was held as follows:  

33. In Bachan Singh this Court has categorically stated, “the  

probability that the accused would not commit criminal acts of  

violence as would constitute a continuing threat to the society”, is  

a relevant circumstance, that must be given great weight in the  

determination of sentence. This was further expressed in Santosh  

Kumar Satishbhushan Bariyar. 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  

                                                           29 (2014) 4 SCC 69

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reformed or rehabilitated, which depends upon the facts and  

circumstances of each case.” (Emphasis supplied by us).  

41. In Mahesh Dhanaji Shinde v. State of Maharashtra30 this Court  

considered the conduct of the convicts and on the facts before it, it was  

concluded that they were capable of living a changed life if they are  

rehabilitated in society. In any event, the State had not contended that the  

convicts were beyond reformation and could not lead a changed life if they  

are rehabilitated in society.  

42. In Sushil Sharma this Court acknowledged that among various  

factors, one of the factors required to be taken into consideration for  

awarding or not awarding capital punishment is the probability of reform  

and rehabilitation of the convict. This acknowledgement was made in  

paragraph 103 of the Report, in which it was said:  

“103. In the nature of things, there can be no hard-and-fast rules  

which the court can follow while considering whether an accused  

should be awarded death sentence or not. The core of a criminal  

case is its facts and, the facts differ from case to case. Therefore,  

the various factors like the age of the criminal, his social status, his  

background, whether he is a confirmed criminal or not, whether he  

had any antecedents, whether there is any possibility of his  

reformation and rehabilitation or whether it is a case where  

the reformation is impossible and the accused is likely to revert  

to such crimes in future and become a threat to the society are  

factors which the criminal court will have to examine  

independently in each case. Decision whether to impose death  

penalty or not must be taken in the light of guiding principles laid  

down in several authoritative pronouncements of this Court in the  

facts and attendant circumstances of each case.”  (Emphasis  

supplied by us).    

                                                           30 (2014) 4 SCC 292

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43. At this stage, we must hark back to Bachan Singh and differentiate  

between possibility, probability and impossibility of reform and  

rehabilitation. Bachan Singh requires us to consider the probability of  

reform and rehabilitation and not its possibility or its impossibility.  

44. Finally, in a recent decision of this Court, in Chhannu Lal Verma  

v. State of Chhattisgarh31 the necessity of deciding whether there is any  

probability of reformation and rehabilitation of the convict was  

emphasised in cases where there is a possibility of imposition of the  

death penalty. It was held in paragraph 15 of the Report as follows:  

“15. ……….. No evidence as to the uncommon nature of the  

offence or the improbability of reformation or rehabilitation of the  

appellant has been adduced. Bachan Singh (supra) unambiguously  

sets out that death penalty shall be awarded only in the rarest of  

rare cases where life imprisonment shall be wholly inadequate or  

futile owing to the nature of the crime and the circumstances  

relating to the criminal. Whether the person is capable of  

reformation and rehabilitation should also be taken into  

consideration while imposing death penalty………”  (Emphasis  

supplied by us).  

45. The law laid down by various decisions of this Court clearly and  

unequivocally mandates that the probability (not possibility or  

improbability or impossibility) that a convict can be reformed and  

rehabilitated in society must be seriously and earnestly considered by the  

                                                           31 Criminal Appeal Nos. 1482-1483 of 2018 [Arising out of S.L.P. (Criminal) Nos. 5898-5899 of 2014]  Decided on November 28, 2018  

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courts before awarding the death sentence. This is one of the mandates of  

the “special reasons” requirement of Section 354(3) of the Cr.P.C. and  

ought not to be taken lightly since it involves snuffing out the life of a  

person. To effectuate this mandate, it is the obligation on the prosecution  

to prove to the court, through evidence, that the probability is that the  

convict cannot be reformed or rehabilitated. This can be achieved by  

bringing on record, inter alia, material about his conduct in jail, his conduct  

outside jail if he has been on bail for some time, medical evidence about  

his mental make-up, contact with his family and so on. Similarly, the  

convict can produce evidence on these issues as well.  

46. If an inquiry of this nature is to be conducted, as is mandated by the  

decisions of this Court, it is quite obvious that the period between the date  

of conviction and the date of awarding sentence would be quite prolonged  

to enable the parties to gather and lead evidence which could assist the  

Trial Court in taking an informed decision on the sentence.  But, there is  

no hurry in this regard, since in any case the convict will be in custody for  

a fairly long time serving out at least a life sentence.  

47. Consideration of the reformation, rehabilitation and re-integration of  

the convict into society cannot be over-emphasised.  Until Bachan Singh,  

the emphasis given by the courts was primarily on the nature of the crime,  

its brutality and severity.  Bachan Singh placed the sentencing process into

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perspective and introduced the necessity of considering the reformation or  

rehabilitation of the convict. Despite the view expressed by the  

Constitution Bench, there have been several instances, some of which have  

been pointed out in Bariyar and in Sangeet v. State of Haryana32 where  

there is a tendency to give primacy to the crime and consider the criminal  

in a somewhat secondary manner.  As observed in Sangeet “In the  

sentencing process, both the crime and the criminal are equally important.”  

Therefore, we should not forget that the criminal, however ruthless he  

might be, is nevertheless a human being and is entitled to a life of dignity  

notwithstanding his crime.  Therefore, it is for the prosecution and the  

courts to determine whether such a person, notwithstanding his crime, can  

be reformed and rehabilitated. To obtain and analyse this information is  

certainly not an easy task but must nevertheless be undertaken. The process  

of rehabilitation is also not a simple one since it involves social re-

integration of the convict into society.  Of course, notwithstanding any  

information made available and its analysis by experts coupled with the  

evidence on record, there could be instances where the social re-integration  

of the convict may not be possible. If that should happen, the option of a  

long duration of imprisonment is permissible.  

48. In other words, directing imprisonment for a period greater than 14  

                                                           32 (2013) 2 SCC 452

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years (say 20 or 25 years) could unquestionably foreclose the imposition  

of a sentence of death, being an alternative option to capital punishment.  

DNA evidence  

49. While Section 53-A of the Cr.P.C. is not mandatory, it certainly  

requires a positive decision to be taken.  There must be reasonable grounds  

for believing that the examination of a person will afford evidence as to the  

commission of an offence of rape or an attempt to commit rape.  If  

reasonable grounds exist, then a medical examination as postulated by  

Section 53-A(2) of the Cr.P.C. must be conducted and that includes  

examination of the accused and description of material taken from the  

person of the accused for DNA profiling.  Looked at from another point of  

view, if there are reasonable grounds for believing that an examination of  

the accused will not afford evidence as to the commission of an offence as  

mentioned above, it is quite unlikely that a charge-sheet would even be  

filed against the accused for committing an offence of rape or attempt to  

rape.  

50. Similarly, Section 164-A of the Cr.P.C. requires, wherever possible,  

for the medical examination of a victim of rape.  Of course, the consent of  

the victim is necessary and the person conducting the examination must be  

competent to medically examine the victim.  Again, one of the  

requirements of the medical examination is an examination of the victim

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and description of material taken from the person of the woman for DNA  

profiling.  

51. There can be no doubt that there have been remarkable technological  

advancements in forensic science and in scientific investigations.  These  

must be made fully use of and the somewhat archaic methods of  

investigations must be given up. In Krishna Kumar Malik v. State of  

Haryana33 this Court referred to Section 53-A of the Cr.P.C. and observed  

that after the enactment of this provision with effect from 23rd June, 2006  

“it has become necessary for the prosecution to go in for DNA test in such  

type of cases, facilitating the prosecution to prove its case against the  

accused”.  

52. The necessity of taking advantage of the advancement in scientific  

investigation was the subject matter of discussion in State of Gujarat v.  

Kishanbhai.34 In that case, this Court lamented the failure of the  

investigating agency to take advantage of scientific investigations. It was  

said:  

“12.7.5. There has now been a great advancement in scientific  

investigation on the instant aspect of the matter. The investigating  

agency ought to have sought DNA profiling of the blood samples,  

which would have given a clear picture whether or not the blood  

of the victim [deleted] was, in fact on the clothes of the respondent-

accused Kishanbhai. This scientific investigation would have  

unquestionably determined whether or not the respondent-accused  

was linked with the crime. Additionally, DNA profiling of the                                                              33 (2011) 7 SCC   34 (2014) 5 SCC 108

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blood found on the knife used in the commission of the crime  

(which the respondent-accused Kishanbhai had allegedly stolen  

from Dineshbhai Karsanbhai Thakore, PW 6), would have  

uncontrovertibly determined, whether or not the said knife had  

been used for severing the legs of the victim [deleted], to remove  

her anklets.  

12.7.6. In spite of so much advancement in the field of forensic  

science, the investigating agency seriously erred in not  

carrying out an effective investigation to genuinely determine  

the culpability of the respondent-accused Kishanbhai.” (Emphasis  

supplied by us).  

53. More recently, in Mukesh and Anr. v. State (NCT of Delhi)35 there  

is a brief reference to Section 53-A and Section 164-A of the Cr.P.C. What  

is important in this brief reference is the acknowledgment that DNA  

evidence is being increasingly relied upon by courts.  It was observed in  

paragraphs 216 and 217 as follows:   

“216.  In our country also like several other developed and  

developing countries, DNA evidence is being increasingly relied  

upon by courts.  After the amendment in the Criminal Procedure  

Code by the insertion of Section 53A by Act 25 of 2005, DNA  

profiling has now become a party of the statutory scheme.   

Section 53A relates to the examination of a person accused of rape  

by a medical practitioner.”  

“217. Similarly, under Section 164A inserted by Act 25 of 2005,  

for medical examination of the victim of rape, the description of  

material taken from the person of the woman for DNA profiling is  

must.” (Emphasis supplied by us).  

54. For the prosecution to decline to produce DNA evidence would be a  

little unfortunate particularly when the facility of DNA profiling is  

                                                           35 (2017) 6 SCC 1

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available in the country.  The prosecution would be well advised to take  

advantage of this, particularly in view of the provisions of Section 53-A  

and Section 164-A of the Cr.P.C. We are not going to the extent of  

suggesting that if there is no DNA profiling, the prosecution case cannot  

be proved but we are certainly of the view that where DNA profiling has  

not been done or it is held back from the Trial Court, an adverse  

consequence would follow for the prosecution.  

55. In Mukesh a separate opinion was delivered by Justice Banumathi  

and in paragraph 455 of the Report it was held that DNA profiling is an  

extremely accurate way of comparing specimens and such testing can make  

a virtually positive identification.  It was stated:  

“455. DNA profiling is an extremely accurate way to compare  

a suspect’s DNA with crime scene specimens, victim’s DNA on  

the blood-stained clothes of the accused or other articles  

recovered, DNA testing can make a virtually positive  

identification when the two samples match.  A DNA finger print  

is identical for every part of the body, whether it is the blood,  

saliva, brain, kidney or foot on any part of the body.  It cannot be  

changed; it will be identical no matter what is done to a body.  Even  

relatively minute quantities of blood, saliva or semen at a crime  

scene or on clothes can yield sufficient material for analysis.  The  

Experts opine that the identification is almost hundred per cent  

precise.  Using this i.e. chemical structure of genetic information  

by generating DNA profile of the individual, identification of an  

individual is done like in the traditional method of identifying  

finger prints of offenders.”  (Emphasis supplied by us).  

56. In the context of importance of scientific and technological advances  

having been made, we may recall the observation of this Court in Selvi v.

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State of Karnataka36 in paragraph 220 of the Report that “The matching of  

DNA samples is emerging as a vital tool for linking suspects to specific  

criminal acts.”  

57. Insofar as the present petitions before us are concerned, there is no  

dispute that samples were taken from the body of the accused and sent for  

DNA profiling.  However, the result was not produced before the Trial  

Court.  There is absolutely no explanation for this and in the absence of  

any justification for not producing the DNA evidence, we are of the view  

that it would be dangerous, on the facts of this case, to uphold the sentence  

of death on the appellant.  

Prior history of the convict or criminal antecedents  

58. The history of the convict, including recidivism cannot, by itself, be  

a ground for awarding the death sentence. This needs some clarity. There  

could be a situation where a convict has previously committed an offence  

and has been convicted and sentenced for that offence. Thereafter, the  

convict commits a second offence for which he is convicted and sentence  

is required to be awarded. This does not pose any legal challenge or  

difficulty. But, there could also be a situation where a convict has  

committed an offence and is under trial for that offence. During the  

pendency of the trial he commits a second offence for which he is convicted  

                                                           36 (2010) 7 SCC 263

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and in which sentence is required to be awarded.   

59. Sections 54 of the Indian Evidence Act, 1872 prohibits the use of  

previous bad character evidence except when the convict himself chooses  

to lead evidence of his good character.  The implication of this clearly is  

that the past adverse conduct of the convict ought not to be taken into  

consideration for the purposes of determining the quantum of sentence,  

except in specified circumstances.  

60. There are exceptions to this general rule. For example, Section 376-

E of the IPC provides as follows:  

“376E. Punishment for repeat offenders. - Whoever has been  

previously convicted of an offence punishable under Section 376  

or Section 376-A or Section 376AB, or Section 376D or Section  

376DA or Section 376DB and is subsequently convicted of an  

offence punishable under any of the said sections shall be punished  

with imprisonment for life which shall mean imprisonment for the  

remainder of that person's natural life, or with death.”  

61. Similarly, Section 16(2) of the Prevention of Food Adulteration Act,  

1954 provides as follows:  

“16. Penalties. –   

(1) xxx xxx xxx   

(2) If any person convicted of an offence under this Act commits  

a like offence afterwards it shall be lawful for the court before  

which the second or subsequent conviction takes place to cause the  

offender's name and place of residence, the offence and the penalty  

imposed to be published at the offender's expense in such  

newspapers or in such other manner as the court may direct. The  

expenses of such publication shall be deemed to be part of the cost

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attending the conviction and shall be recoverable in the same  

manner as a fine.”  

62. Finally, it is worthwhile to refer to Section 75 of the IPC which  

provides for enhanced punishment for certain offences under Chapter XII  

or Chapter XVII of the IPC after previous convictions.  This Section reads  

as follows:   

“75. Enhanced punishment for certain offences under Chapter  

XII or Chapter XVII after previous conviction.–Whoever,  

having been convicted, -   

(a) by a Court in India, of an offence punishable under Chapter XII  

or Chapter XVII of this Code with imprisonment of either  

description for a term of three years or upwards,  

shall be guilty of any offence punishable under either of those  

Chapters with like imprisonment for the like term, shall be subject  

for every such subsequent offence to imprisonment for life, or to  

imprisonment of either description for a term which may extend to  

ten years.”  

63. The scope of Section 75 of the IPC was discussed in the 42nd Report  

of the Law Commission of India in the following words:   

“[This] is an attempt to deal with the problem of habitual offenders  

and recidivism.  Other penal systems also have tried to grapple  

with this complex problem, but nowhere have the attempts met  

with marked success, perhaps because the causes of crime are  

themselves complex.  Because the previous sentence has failed  

both in its object of reforming the offender and in its object of  

deterring him from crime, the law, as a measure of last resort,  

concentrates on protecting society from the offender by sending  

him to jail for a longer term than before.”       

64. It is worthwhile to note that the three provisions of law quoted above  

deal with instances where there is a prior conviction and do not deal with

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the pending trial of a case involving an offence. Therefore, while it is  

possible to grant an enhanced sentence, as provided by statute, for a  

recurrence of the same offence after conviction, the possibility of granting  

an enhanced sentence where the statute is silent does not arise.  

Consequently, it must be held that in terms of Section 54 of the Indian  

Evidence Act the antecedents of a convict are not relevant for the purposes  

of awarding a sentence, unless the convict gives evidence of his good  

character.  

65. The importance of a conviction as against a pending trial was  

emphasised in Mohd. Farooq Abdul Gafur v. State of Maharashtra37  

wherein the presumption of innocence was adverted to as a human right  

and it was held in paragraph 178 of the Report:  

“178. In our opinion the trial court had wrongly rejected the fact  

that even though the accused had a criminal history, but there had  

been no criminal conviction against the said three accused. It had  

rejected the said argument on the ground that a conviction might  

not be possible in each and every criminal trial. In our opinion  

unless a person is proven guilty, he should be presumed  

innocent. Further, nothing has been brought on behalf of the State  

even after all these years, that the criminal trials that had been  

pending against the accused had resulted in their conviction.  

Unless the same is shown by the documents on records we would  

presume to the contrary. Presumption of innocence is a human  

right. The learned trial Judge should also have presumed the same  

against all the three accused. In our opinion the alleged criminal  

history of the accused had a major bearing on the imposition of the  

death sentence by the trial court on the three accused. That is why  

in our opinion he had erred in this respect.”  (Emphasis supplied  

by us).  

                                                           37 (2010) 14 SCC 641

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66. However, in Gurmukh Singh v. State of Haryana38 while this Court  

did not consider or discuss the prior history of the convict as a factor for  

sentencing, it was noted in paragraph 23 of the Report that one of the  

relevant factors for consideration before awarding an appropriate sentence  

to the convict would be the number of other criminal cases pending against  

him. In our opinion, this does not lay down the correct law since it  

overlooks the presumption of innocence. It was held in paragraph 23 of the  

Report as follows:  

“23. These are some factors which are required to be taken into  

consideration before awarding appropriate sentence to the accused.  

These factors are only illustrative in character and not exhaustive.  

Each case has to be seen from its special perspective. The relevant  

factors are as under:  

(a) to (j) xxx xxx xxx    

(k) Number of other criminal cases pending against the accused;  

(l) to (m) xxx xxx   

These are some of the factors which can be taken into  

consideration while granting an appropriate sentence to the  

accused.” (Emphasis supplied by us).    

67. In Bantu v. State of M.P.39 this Court noted that there was nothing  

on record to indicate that the appellant had any criminal antecedents nor  

could it be said that he would be a grave danger to the society at large  

despite the fact that the crime committed by him was heinous. It was held  

                                                           38 (2009) 15 SCC 635  39 (2001) 9 SCC 615

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in paragraph 8 of the Report as follows:  

“8. However, the learned counsel for the appellant submitted that  

in any set of circumstances, this is not the rarest of the rare case  

where the accused is to be sentenced to death. He submitted that  

age of the accused on the relevant day was less than 22 years. It is  

his submission that even though the act is heinous, considering the  

fact that no injuries were found on the deceased, it is probable that  

death might have occurred because of gagging her mouth and  

nosetrix [nostril] by the accused at the time of incident so that she  

may not raise a hue and cry. The death, according to him, was  

accidental and an unintentional one. In the present case, there is  

nothing on record to indicate that the appellant was having any  

criminal record nor can it be said that he will be a grave danger  

to the society at large. It is true that his act is heinous and  

requires to be condemned but at the same time it cannot be  

said that it is the rarest of the rare case where the accused  

requires to be eliminated from the society. Hence, there is no  

justifiable reason to impose the death sentence.” (Emphasis  

supplied by us).    

68. In Amit v. State of Maharashtra40 this Court adverted to the prior  

history of the appellant and noted that there is no record of any previous  

heinous crime and also there is no evidence that he would be a danger to  

society if the death penalty is not awarded to him. It was held in paragraph  

10 of the Report:  

“10. The next question is of the sentence. Considering that the  

appellant is a young man, at the time of the incident his age was  

about 20 years; he was a student; there is no record of any  

previous heinous crime and also there is no evidence that he  

will be a danger to the society, if the death penalty is not awarded.  

Though the offence committed by the appellant deserves severe  

condemnation and is a most heinous crime, but on cumulative facts  

and circumstances of the case, we do not think that the case falls  

in the category of rarest of the rare cases…….” (Emphasis supplied  

by us).  

                                                           40 (2003) 8 SCC 93

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69. In the case of Rahul v. State of Maharashtra41 this Court noted that  

there was no adverse report about the conduct of the appellant therein either  

by the jail authorities or by the probationary officer and that he had no  

previous criminal record or at least nothing was brought to the notice of  

the Court. It was observed in paragraph 4 of the Report as follows:  

“4. We have considered all the relevant aspects of the case. It is  

true that the appellant committed a serious crime in a very ghastly  

manner but the fact that he was aged 24 years at the time of the  

crime, has to be taken note of. Even though, the appellant had been  

in custody since 27-11-1999 we are not furnished with any report  

regarding the appellant either by any probationary officer or by the  

jail authorities. The appellant had no previous criminal record,  

and nothing was brought to the notice of the Court. It cannot  

be said that he would be a menace to the society in future.  

Considering the age of the appellant and other circumstances, we  

do not think that the penalty of death be imposed on him.”  

(Emphasis supplied by us).  

70. Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat42 the  

absence of any involvement in any previous criminal case was considered  

to be a factor to be taken into consideration for the purposes of awarding  

the sentence to the appellant therein. It was held in paragraph 13 of the  

Report as follows:  

“13. The next question that arises for consideration is whether this  

is a “rarest of rare case”; we do not think that this is a “rarest of  

rare case” in which death penalty should be imposed on the  

appellant. The appellant was aged 36 years at the time of the  

                                                           41 (2005) 10 SCC 322  42 (2005) 3 SCC 127

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011                      Page 38 of 43    

occurrence and there is no evidence that the appellant had been  

involved in any other criminal case previously and the  

appellant was a migrant labourer from U.P. and was living in  

impecunious circumstances and it cannot be said that he would  

be a menace to society in future and no materials are placed  

before us to draw such a conclusion. We do not think that the  

death penalty was warranted in this case. We confirm conviction  

of the appellant on all the counts, but the sentence of death penalty  

imposed on him for the offence under Section 302 IPC is  

commuted to life imprisonment.” (Emphasis supplied by us).  

71. The importance and significance of a conviction as against a pending  

trial was the subject matter of discussion in the Supreme Court of Canada.  

In Her Majesty The Queen v. Norman Skolnick43 Coke’s Institutes was  

partially “modified” to the effect that a person cannot be sentenced for the  

third offence before he has been convicted of the second offence; nor can  

that person be sentenced for the second offence before he has been  

convicted for the first offence. The second offence must be committed after  

the first conviction and the third offence must be committed after the  

second conviction. The principle appears to be that the accused does not  

face the jeopardy of an increased penalty unless he has previously been  

convicted and sentenced.  

72. Similarly, the Supreme Court of the Northern Territory of Australia  

in Scott Nathan Schluter v. Robin Laurence Trenerry44 took the view that  

escalating the period of actual imprisonment could be justified if there is a  

                                                           43 [1982] 2 SCR 47  44 (1997) 6 NTLR 194

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second finding of guilt. If that second finding of guilt is missing then there  

“would be no opportunity for the multiple offender, not previously  

charged, to become aware of the certainty of the severity of punishment for  

the proscribed criminal behaviour.”  

73. It is therefore quite clear from the various decisions placed before us  

that the mere pendency of one or more criminal cases against a convict  

cannot be a factor for consideration while awarding a sentence.  Not only  

is it statutorily impermissible (except in some cases) but even otherwise it  

violates the fundamental presumption of innocence – a human right - that  

everyone is entitled to.  

74. Insofar as the present case is concerned, it has come on record that  

there are two cases pending against the appellant for similar offences.  Both  

these were pending trial. Notwithstanding this, the Trial Judge took this  

into account as a circumstance against the appellant.  It would have been,  

in our opinion, far more appropriate for the Sessions Judge to have waited,  

if he thought it necessary to take the pendency of these cases into  

consideration, for the trials to be concluded.  For ought we know, the two  

cases might have been foisted upon the appellant and he might have  

otherwise been proved not guilty.    

75. We may generally mention, in conclusion, that there is really no  

reason for the Trial Judge to be in haste in awarding a sentence in a case

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011                      Page 40 of 43    

where he might be considering death penalty on the ground that any other  

alternative option is unquestionably foreclosed.  The convict would in any  

case remain in custody for a fairly long time since the minimum  

punishment awarded would be imprisonment for life.  Therefore, a Trial  

Judge can take his time and sentence the convict after giving adequate  

opportunity for the prosecution as well as for the defence to produce  

material as postulated in Bachan Singh so that the possibility of awarding  

life sentence is open to the Trial Judge as against the death sentence. It  

must be appreciated that a sentence of death should be awarded only in the  

rarest of rare cases, only if an alternative option is unquestionably  

foreclosed and only after full consideration of all factors keeping in mind  

that a sentence of death is irrevocable and irretrievable upon execution. It  

should always be remembered that while the crime is important, the  

criminal is equally important insofar as the sentencing process is  

concerned. In other words, courts must “make assurance double sure”.45  

76. We may note here, by way of a post script that during the course of  

submissions, it was stated by learned counsel for the appellant that in the  

meanwhile the appellant had been convicted in one of the pending cases,  

that is, State of Maharashtra v. Raju @ Rajendra judgement Wasnik (S.T.  

No. 162 of 2007). This case was decided by the Sessions Judge, Amravati,  

                                                           45 Shakespeare's Macbeth, Act IV, Scene i

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Maharashtra on 18th April, 2016. The Trial Judge imposed a sentence of  

imprisonment for life on the appellant upon his conviction, while taking  

note that in the present case, the appellant had been awarded the death  

sentence.  

77.  A perusal of the website of the eCourts Project of the eCommittee  

of the Supreme Court revealed that in fact there were a total of four cases  

against the appellant, including the one that we are dealing with. In  

paragraph 38 of the decision rendered by the Sessions Judge in S.T. No.  

162 of 2007 it was recorded as follows:  

“[38] The victim of this crime was aged about 9 to 10 years old  

and prosecution proved that the accused committed rape on her. It  

appears from the facts and circumstances and record that in Crime  

No.23/2007 of police station Kholapurigate, Amravati  

(S.T.No.183/2007) the accused was convicted and sentenced to  

death for the offence punishable under sections 302, 376(2)(f) and  

377 of Indian Penal Code. He is also convicted in Crime  

No.31/2007 of police station Daryapur (S.T.No.112/2007) and he  

is sentenced to suffer imprisonment for life for the offence  

punishable under section 376(2)(f) of Indian Penal Code. He is also  

convicted in Crime No.21/2006 of police station Chikhaldara,  

District Amravati (S.T.No.66/2007) and he is sentenced to suffer  

imprisonment for life for the offence punishable under sections  

363, 366, 376(2)(f), 302 and 201 of Indian Penal Code. The death  

sentence in S.T.No.183/2007 is confirmed up to the Hon'ble  

Supreme Court of India and it appears that the Mercy Petition filed  

by the accused also came to be rejected by the Hon'ble President  

of India. The accused committed the offence of same nature i.e.  

rape on minor and innocent girl. It is his 4th offence of same nature  

in which the offence under sections 363, 366 and 376(2)(f) of  

Indian Penal Code is proved against the accused. It appears that  

the accused is in habit to commit rape on minor girl. Taking in to  

consideration the gravity of offence and the facts and  

circumstances, I am of the opinion that the accused is not deserved  

for leniency and according to me, the following punishment would  

meet the ends of justice…….”

R.P. (Crl.) Nos. 306-307 of 2013 in Crl. Appeal Nos.145-146 of 2011                      Page 42 of 43    

We have not been informed whether the conviction orders passed against  

the appellant have been set aside or not. We are therefore proceeding on  

the basis that the appellant has been awarded a sentence of death in the  

present case and a sentence of imprisonment for life in the three other cases  

decided against him, subject to any order passed by the appellate court.   

78. We must however express our shock and anguish that the appellant  

had the opportunity to commit the offences alleged against him on more  

than one occasion. This could have been possible only if the appellant had  

been on bail and our shock and anguish is that in the background of the  

facts before us, the appellant was actually granted bail.  

Conclusion  

79. Insofar as the present petition is concerned, we are of opinion that  

for the purposes of sentencing, the Sessions Judge, the High Court as well  

as this Court did not take into consideration the probability of reformation,  

rehabilitation and social re-integration of the appellant into society. Indeed,  

no material or evidence was placed before the courts to arrive at any  

conclusion in this regard one way or the other and for whatever it is worth  

on the facts of this case.  The prosecution was remiss in not producing the  

available DNA evidence and the failure to produce material evidence must  

lead to an adverse presumption against the prosecution and in favour of the

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appellant for the purposes of sentencing.  The Trial Court was also in error  

in taking into consideration, for the purposes of sentencing, the pendency  

of two similar cases against the appellant which it could not, in law,  

consider. However, we also cannot overlook subsequent developments  

with regard to the two (actually three) similar cases against the appellant.  

80. For all these reasons, we are of opinion that it would be more  

appropriate looking to the crimes committed by the appellant and the  

material on record including his overall personality and subsequent events,  

to commute the sentence of death awarded to the appellant but direct that  

he should not be released from custody for the rest of his normal life. We  

order accordingly.   

81. The petitions stand disposed of accordingly.  

                                                           ………………………J.  

             (Madan B. Lokur)   

  ………………………J.  

             (S. Abdul Nazeer)     

          New Delhi;                                                        ...……………………..J.     

          December 12, 2018                     (Deepak Gupta)