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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NOS.     490-491     OF     2011   

SANGEET & ANR.  …..Appellants

VERSUS

STATE OF HARYANA        …..Respondent  

J     U     D     G     M     E     N     T      

Madan     B.     Lokur,     J  .

1. In these appeals, this Court issued notice limited to the  

question of the sentence awarded to the appellants. They were  

awarded the death penalty, which was confirmed by the High  

Court. In our opinion, the appellants in these appeals against  

the order of the High Court should be awarded a life sentence,  

subject to the faithful implementation of the provisions of the  

Code of Criminal Code, 1973.

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The facts:

2. In view of the limited notice issued in these appeals, it is  

not necessary to detail the facts. However, it may be  

mentioned that as many as six persons (including the  

appellants) were accused of various offences under the Indian  

Penal Code (for short the IPC) and the Arms Act, 1959.  They  

were convicted by the Additional Sessions Judge, Rohtak by  

his judgment and order dated 13th November, 2009 in  

Sessions Case No. 47 of 2004/2009 of the offence of murder  

(Section 302 of the IPC), attempt to murder (Section 307 of the  

IPC), rioting, armed with a deadly weapon (Section 148 of the  

IPC), house trespass in order to commit an offence punishable  

with death (Section 449 of the IPC) read with Section 149 of  

the IPC (every member of an unlawful assembly is guilty of an  

offence committed in prosecution of a common object). Five of  

the accused were convicted of an offence under Section 25(1-

B) of the Arms Act, 1959. Except the appellants, all of them  

were given a sentence of rigorous imprisonment for life and  

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payment of fine. The appellants, as mentioned above, were  

sentenced to death.

3. The Trial Judge found the accused guilty of having  

committed the murder of Ranbir, Bimla (his wife), Seema (wife  

of Amardeep) and Rahul the three-year-old child of Amardeep  

and Seema and grandson of Ranbir.

4. The Trial Judge found that accused Ram Phal believed  

that Amardeep’s family had performed some black magic  

which led to the death of his (Ram Phal) son Ved Pal soon after  

his marriage.  Apparently, with a view to take revenge, Ram  

Phal and the other accused committed the crimes  

aforementioned.

5. The Trial Judge found that the bodies of Ranbir, Bimla  

(his wife) and Seema (wife of Amardeep) had bullet injuries and  

other injuries inflicted by a sharp-edged weapon called ‘Kukri’.  

The body of Seema was also burnt from below the waist.   As  

far as Rahul (a three-year-old boy) is concerned the upper  

portion of his head was blown off by a firearm injury.  

Amardeep also had a grievous injury but he survived and was  

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the star witness for the prosecution.  On these broad facts the  

Trial Judge convicted the appellants and others.

6. Thereafter, the Trial Judge heard the convicts under  

Section 235(2) of the Code of Criminal Procedure on the  

question of sentence. In his brief statement, appellant  

Sandeep stated that he is married and has a five-year-old  

daughter and aged parents to look after.  Appellant Narender  

also gave a brief a brief statement that he is not married and  

has aged parents to look after. The Trial Judge considered the  

judgments of this Court, inter alia, in Bachan Singh v. State  

of Punjab, (1980) 2 SCC 684 and Machhi Singh and Ors. v.  

State of Punjab, (1983) 3 SCC 470. Thereafter, by his order  

dated 18th November, 2009 the Trial Judge handed down the  

sentences mentioned above.  

7. The Trial Judge found that the crime committed by the  

appellants was brutal in nature. As far as Narender is  

concerned he had blown off the upper portion of the head of  

three-year-old Rahul, son of Amardeep by the use of a firearm.  

As far as Sandeep is concerned, even after giving a gun shot  

injury on the head of Seema he poured kerosene oil on her  

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and set her ablaze.  Taking note of the fact that the entire  

family of Ranbir (except Amardeep) was wiped out by the  

accused in a brutal and merciless manner, the Trial Judge  

held that the crime committed by them fell in the category of  

the rarest of rare cases, inviting the death penalty. The death  

sentence awarded to the appellants was however, subject to  

confirmation by the Punjab & Haryana High Court to which a  

reference was separately made.

8. The Punjab & Haryana High Court by its Judgment and  

Order dated 21st July, 2010 in Murder Reference No. 7 of 2009  

confirmed the death sentence.   

9. The High Court opined that the crime was committed in a  

pre-meditated, cold-blooded, cruel and diabolic manner while  

the victims were sleeping.  The convicts were armed with  

deadly weapons like firearms and kukris etc. which they used  

unhesitatingly and indiscriminately to commit murders and  

cause a life threatening injury to Amardeep.  It was held that  

Seema’s body was burnt by Sandeep from below the waist with  

a view to destroy evidence of her having been subjected to  

sexual harassment and rape. Narender was found to be a  

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professional killer.  It was held that the act of the appellants  

fell in the category of rarest of rare cases and as such a death  

penalty was warranted.

10. We heard the learned Legal Aid Counsel on behalf of the  

appellants and record our appreciation for the keen interest  

taken by him in the case and the efforts put in.  We also heard  

learned counsel for the State and have gone through the  

record as well as the statement given by the appellants under  

Section 235 (2) of the Criminal Procedure Code.  We have  

given our anxious consideration to the question of sentence to  

be awarded to the appellants.

Leading judgments on the death penalty:

11. Any discussion on the subject of death penalty should  

actually commence with the Constitution Bench decision in  

Bachan Singh.  However, it may be more appropriate to travel  

back in time to Jagmohan Singh v. State of U.P. (1973) 1  

SCC 20 for the limited purpose of indicating an important  

legislative change that had taken place in the meanwhile.  

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12. Jagmohan Singh was decided when the Code of  

Criminal Procedure, 1898 (for short the old Code) was in force.  

Section 367(5) of the old Code provided that if an accused  

person is convicted of an offence punishable with death, and  

he is sentenced to a punishment other than death, the Court  

was required to state the reason why a sentence of death was  

not passed. Section 367(5) of the old Code reads as follows:-  

“If the accused is convicted of an offence punishable with  death, and the court sentences him to any punishment  other than death, the court shall in its judgment state  the reason why sentence of death was not passed.”

13. Bachan Singh was, however, heard and decided when  

the Code of Criminal Procedure, 1973 (for short the Cr.P.C)  

had come into force with effect from 1st April, 1974.  The  

Cr.P.C contained Section 354(3), which provided that for an  

offence punishable with death, the first option for punishment  

would be imprisonment for life (or imprisonment for a term of  

years) and the second option would be a sentence of death.  

Section 354(3) of the Cr.P.C reads as follows:-

“When the conviction is for an offence punishable with  death or, in the alternative, with imprisonment for life or  imprisonment for a term of years, the judgment shall  

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state the reasons for the sentence awarded, and, in the  case of sentence of death, the special reasons for such  sentence.”

14. The Cr.P.C. effectively reversed the position as it existed  

under the old Code and also placed a requirement that if a  

sentence of death is awarded, the Court should record special  

reasons for awarding that sentence.

15. In Bachan Singh, two issues came up for consideration  

before the Constitution Bench.  The first issue related to the  

constitutional validity of the death penalty for murder as  

provided in Section 302 of the IPC and the second related to  

“the sentencing procedure embodied in sub-section (3) of  

Section 354 of the Code of Criminal Procedure, 1973”.

16. While answering the above issues, the following  

questions were framed for consideration:-

“(i) Whether death penalty provided for the offence of  murder in Section 302 of the Penal Code is  unconstitutional.

(ii) If the answer to the foregoing question be in the  negative, whether the sentencing procedure provided in  Section 354(3) of the Code of Criminal Procedure, 1973  (Act 2 of 1974) is unconstitutional on the ground that it  invests the court with unguided and untrammelled  discretion and allows death sentence to be arbitrarily or  

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freakishly imposed on a person found guilty of murder or  any other capital offence punishable under the Indian  Penal Code with death or, in the alternative, with  imprisonment for life.”

17. Insofar as the first question is concerned, the  

Constitution Bench answered it in the negative.  As regards  

the second question, the Constitution Bench referred to and  

considered Jagmohan Singh and culled out several  

propositions from that decision. The Constitution Bench did  

not disagree with any of the propositions, except to the extent  

of tweaking proposition (iv)(a) and proposition (v)(b) in view of  

the changed legislative policy. For the present, we are  

concerned only with these two propositions. However for  

convenience, all the propositions culled out from Jagmohan  

Singh are reproduced below:-

“(i) The general legislative policy that underlines the  structure of our criminal law, principally contained in the  Indian Penal Code and the Criminal Procedure Code, is to  define an offence with sufficient clarity and to prescribe  only the maximum punishment therefor, and to allow a  very wide discretion to the Judge in the matter of fixing  the degree of punishment.

With the solitary exception of Section 303, the same  policy permeates Section 302 and some other sections of  the Penal Code, where the maximum punishment is the  death penalty.

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(ii)-(a) No exhaustive enumeration of aggravating or  mitigating circumstances which should be considered  when sentencing an offender, is possible. “The infinite  variety of cases and facets to each case would make  general standards either meaningless ‘boiler plate’  or a  statement of the obvious that no Jury (Judge) would  need.” (referred to McGoutha v. California, (1971) 402 US  183).

(b) The impossibility of laying down standards is at the  very core of the criminal law as administered in India  which invests the Judges with a very wide discretion in  the matter of fixing the degree of punishment.

(iii) The view taken by the plurality in Furman v. Georgia  (1972) 408 US 238 decided by the Supreme Court of the  United States, to the effect, that a law which gives  uncontrolled and unguided discretion to the Jury (or the  Judge) to choose arbitrarily between a sentence of death  and imprisonment for a capital offence, violates the  Eighth Amendment, is not applicable in India. We do not  have in our Constitution any provision like the Eighth  Amendment, nor are we at liberty to apply the test of  reasonableness with the freedom with which the Judges  of the Supreme Court of America are accustomed to  apply “the due process”  clause. There are grave doubts  about the expediency of transplanting western experience  in our country. Social conditions are different and so also  the general intellectual level. Arguments which would be  valid in respect of one area of the world may not hold  good in respect of another area.

(iv)(a) This discretion in the matter of sentence is to be  exercised by the Judge judicially, after balancing all the  aggravating and mitigating circumstances of the crime.

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(b) The discretion is liable to be corrected by superior  courts. The exercise of judicial discretion on well  recognised principles is, in the final analysis, the safest  possible safeguard for the accused.

In view of the above, it will be impossible to say that  there would be at all any discrimination, since crime as  crime may appear to be superficially the same but the  facts and circumstances of a crime are widely different.  Thus considered, the provision in Section 302, Penal  Code is not violative of Article 14 of the Constitution on  the ground that it confers on the Judges an unguided  and uncontrolled discretion in the matter of awarding  capital punishment or imprisonment for life.

(v)(a) Relevant facts and circumstances impinging on the  nature and circumstances of the crime can be brought  before the court at the preconviction stage,  notwithstanding the fact that no formal procedure for  producing evidence regarding such facts and  circumstances had been specifically provided. Where  counsel addresses the court with regard to the character  and standing of the accused, they are duly considered by  the court unless there is something in the evidence itself  which belies him or the Public Prosecutor challenges the  facts.

(b) It is to be emphasised that in exercising its discretion  to choose either of the two alternative sentences provided  in Section 302 Penal Code, “the court is principally  concerned with the facts and circumstances whether  aggravating or mitigating, which are connected with the  particular crime under inquiry. All such facts and  circumstances are capable of being proved in accordance  with the provisions of the Indian Evidence Act in a trial  regulated by the CrPC. The trial does not come to an end  until all the relevant facts are proved and the counsel on  both sides have an opportunity to address the court. The  only thing that remains is for the Judge to decide on the  

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guilt and punishment and that is what Sections 306(2)  and 309(2), CrPC purport to provide for. These provisions  are part of the procedure established by law and unless it  is shown that they are invalid for any other reasons they  must be regarded as valid. No reasons are offered to show  that they are constitutionally invalid and hence the death  sentence imposed after trial in accordance with the  procedure established by law is not unconstitutional  under Article 21”.”(emphasis added in the judgment).

18. It will be seen from proposition (iv)(a) that Jagmohan  

Singh laid down that discretion in the matter of sentencing is  

to be exercised by the judge after balancing all the aggravating  

and mitigating circumstances “of the crime”.

19. Jagmohan Singh also laid down in proposition (v)(b)  

that while choosing between the two alternative sentences  

provided in Section 302 of the IPC (sentence of death and  

sentence of life imprisonment), the Court is principally  

concerned with the aggravating or mitigating circumstances  

connected with the “particular crime under inquiry”.   

20. Since the focus was on the crime, we call this, for  

convenience, Phase I of an evolving sentencing policy.  

21. As mentioned above, while accepting all other  

propositions laid down in Jagmohan Singh, the Constitution  

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Bench in Bachan Singh did not fully accept proposition (iv)(a)  

and (v)(b).  This is explained in paragraph 161 to paragraph  

166 of the Report where it is specifically mentioned that these  

two propositions need to be “adjusted and attuned” to the shift  

in the legislative policy.  

22. The Constitution Bench observed that under the old  

Code, both the sentence of death and the sentence of  

imprisonment for life provided under Section 302 of the IPC  

could be imposed after weighing the aggravating and  

mitigating circumstances of the particular case. However, in  

view of Section 354(3) of the Cr.P.C. a punishment of  

imprisonment for life should normally be imposed under  

Section 302 of the IPC but a sentence of death could be  

imposed as an exception. Additionally, as per the legislative  

requirement if a sentence of death is to be awarded, special  

reasons need to be recorded.  In a sense, the legislative policy  

now virtually obviated the necessity of balancing the  

aggravating and mitigating circumstances of the crime for the  

award of punishment in respect of an offence of murder  

(although “aggravating and mitigating circumstances”  are  

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repeatedly referred to in the judgment, including as “relevant  

circumstances”  that must be given “great weight”). Therefore,  

the Constitution Bench (after a discussion in paragraphs 161  

and 162 of the Report) “adjusted and attuned” proposition (iv)

(a) by deleting the reference to “balancing all the aggravating  

and mitigating circumstances of the crime” to read as follows:-

“(a) The normal rule is that the offence of murder shall be  punished with the sentence of life imprisonment. The  court can depart from that rule and impose the sentence  of death only if there are special reasons for doing so.  Such reasons must be recorded in writing before  imposing the death sentence.”

23. The Constitution Bench also did not fully accept the  

postulate in proposition (v)(b) that while making the choice of  

sentence, including the sentence under Section 302 of the IPC,  

the Court should be principally concerned with the  

circumstances connected with the particular crime under  

inquiry (paragraph 163 of the Report). The Constitution Bench  

laid down that not only the relevant circumstances of the  

crime should be factored in, but due consideration must also  

given to the circumstances of the criminal.  Consequently, the  

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Constitution Bench re-formulated proposition (v)(b) to read as  

follows: -

“(b) While considering the question of sentence to be  imposed for the offence of murder under Section 302 of  the Penal Code, the court must have regard to every  relevant circumstance relating to the crime as well as the  criminal. If the court finds, but not otherwise, that the  offence is of an exceptionally depraved and heinous  character and constitutes, on account of its design and  the manner of its execution, a source of grave danger to  the society at large, the court may impose the death  sentence.”

24. The conclusion of the Constitution Bench under these  

circumstances was that the sentence of death ought to be  

given only in the rarest of rare cases and it should be given  

only when the option of awarding the sentence of life  

imprisonment is “unquestionably foreclosed”.   

25. Bachan Singh, therefore, made two very significant  

departures from Jagmohan Singh.  The departures were: (i)  

in the award of punishment by deleting any reference to the  

aggravating and mitigating circumstances of a crime and (ii) in  

introducing the circumstances of the criminal. These  

departures are really the crux of the matter, as far as we are  

concerned in this case.   

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26. Bachan Singh effectively opened up Phase II of a  

sentencing policy by shifting the focus from the crime to the  

crime and the criminal. This is where Bachan Singh marks a  

watershed in sentencing. But, how effective has been the  

implementation of Bachan Singh?

Issue of aggravating and mitigating circumstances:

27. In making the shift from the crime to the crime and the  

criminal, the Constitution Bench in Bachan Singh looked at  

the suggestions given by learned counsel appearing in the  

case. These suggestions, if examined, indicate that in so far as  

aggravating circumstances are concerned, they refer to the  

crime. They are: -

“(a) if the murder has been committed after previous  planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed  forces of the Union or of a member of any police force or  of any public servant and was committed—

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

(ii) in consequence of anything done or attempted to  be done by such member or public servant in the  lawful discharge of his duty as such member or public  servant whether at the time of murder he was such  

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member or public servant, as the case may be, or had  ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the  lawful discharge of his duty under Section 43 of the Code  of Criminal Procedure, 1973, or who had rendered  assistance to a Magistrate or a police officer demanding  his aid or requiring his assistance under Section 37 and  Section 129 of the said Code.”

In so far as mitigating circumstances are concerned, they  

refer to the criminal. They are: -

“(1) That the offence was committed under the influence  of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old,  he shall not be sentenced to death. (3) The probability that the accused would not commit  criminal acts of violence as would constitute a continuing  threat to society. (4) The probability that the accused can be reformed and  rehabilitated. The State shall by evidence prove that the  accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the  accused believed that he was morally justified in  committing the offence. (6) That the accused acted under the duress or  domination of another person. (7) That the condition of the accused showed that he was  mentally defective and that the said defect impaired his  capacity to appreciate the criminality of his conduct.”

28. The Constitution Bench made it absolutely clear that the  

suggestions given by learned counsel were only indicators and  

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not an attempt to make an exhaustive enumeration of the  

circumstances either pertaining to the crime or the criminal.  

The Constitution Bench hoped and held that in view of the  

“broad illustrative guide-lines”  laid down, the Courts “will  

discharge the onerous function with evermore scrupulous care  

and humane concern, directed along the highroad of legislative  

policy outlined in Section 354(3) [of the Cr.P.C.] viz. that for  

persons convicted of murder, life imprisonment is the rule and  

death sentence an exception.”

29. Despite the legislative change and Bachan Singh  

discarding proposition (iv)(a) of Jagmohan Singh, this Court  

in Machhi Singh revived the “balancing”  of aggravating and  

mitigating circumstances through a balance sheet theory. In  

doing so, it sought to compare aggravating circumstances  

pertaining to a crime with the mitigating circumstances  

pertaining to a criminal.  It hardly need be stated, with  

respect, that these are completely distinct and different  

elements and cannot be compared with one another.  A  

balance sheet cannot be drawn up of two distinct and different  

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constituents of an incident. Nevertheless, the balance sheet  

theory held the field post Machhi Singh.

30. The application of the sentencing policy through  

aggravating and mitigating circumstances came up for  

consideration in Swamy Shraddananda (2) v. State of  

Karnataka, (2008) 13 SCC 767. On a review, it was  

concluded in paragraph 48 of the Report that there is a lack of  

evenness in the sentencing process. The rarest of rare  

principle has not been followed uniformly or consistently.  

Reference in this context was made to Aloke Nath Dutta v.  

State of West Bengal, (2007) 12 SCC 230 which in turn  

referred to several earlier decisions to bring home the point.    

31. The critique in Swamy Shraddananda was mentioned  

(with approval) in Santosh Kumar Satishbhushan Bariyar  

v. State of Maharashtra, (2009) 6 SCC 498 while sharing  

this Court’s “unease and sense of disquiet” in paragraphs 109,  

129 and 130 of the Report. In fact, in paragraph 109 of the  

Report, it was observed that  

“…  the balance sheet of aggravating and mitigating  circumstances approach invoked on a case-by-case basis  has not worked sufficiently well so as to remove the vice  

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of arbitrariness from our capital sentencing system. It  can be safely said that the Bachan Singh threshold of  “the rarest of rare cases”  has been most variedly and  inconsistently applied by the various High Courts as also  this Court.”  

32. It does appear that in view of the inherent multitude of  

possibilities, the aggravating and mitigating circumstances  

approach has not been effectively implemented.  

33. Therefore, in our respectful opinion, not only does the  

aggravating and mitigating circumstances approach need a  

fresh look but the necessity of adopting this approach also  

needs a fresh look in light of the conclusions in Bachan  

Singh. It appears to us that even though Bachan Singh  

intended “principled sentencing”, sentencing has now really  

become judge-centric as highlighted in Swamy  

Shraddananda and Bariyar. This aspect of the sentencing  

policy in Phase II as introduced by the Constitution Bench in  

Bachan Singh seems to have been lost in transition.  

Issue of crime and the criminal:

34. Despite Bachan Singh, primacy still seems to be given  

to the nature of the crime. The circumstances of the criminal,  

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referred to in Bachan Singh appear to have taken a bit of a  

back seat in the sentencing process. This was noticed in  

Bariyar with reference to Ravji v. State of Rajasthan,  

(1996) 2 SCC 175. It was observed that “curiously”  only  

characteristics relating to the crime, to the exclusion of the  

criminal were found relevant to sentencing. It was noted that  

Ravji has been followed in several decisions of this Court  

where primacy has been given to the crime and circumstances  

concerning the criminal have not been considered. In  

paragraph 63 of the Report it is noted that Ravji was rendered  

per incuriam and then it was observed that:-

“It is apparent that Ravji has not only been  considered but also relied upon as an authority on  the point that in heinous crimes, circumstances  relating to [the] criminal are not pertinent.”

35. It is now generally accepted that Ravji was rendered per  

incuriam (see, for example, Dilip Premnarayan Tiwari v.  

State of Maharashtra, (2010) 1 SCC 775). Unfortunately,  

however, it seems that in some cases cited by learned counsel  

the circumstances pertaining to the criminal are still not given  

the importance they deserve.  

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36. In Shivu v. Registrar General, High Court of  

Karnataka, (2007) 4 SCC 713, the principle of ‘just desserts’  

was applied and the death penalty awarded to the convicts  

was upheld. The circumstances of the convicts were not  

considered for reducing the death penalty.  

37. Rajendra Pralhadrao Wasnik v. State of  

Maharashtra, (2012) 4 SCC 37 was a case of rape and  

murder of a three-year-old child in a vicious and brutal  

manner. This Court confirmed the sentence of death after  

taking into consideration the brutal nature of the crime but  

not the circumstances of the criminal.

38. Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317  

was a case of a brutal rape and murder of a seven-year-old  

girl. While confirming the sentence of death, this Court  

referred to the nature of the crime and the extreme indignation  

of the community. On that basis, it leaned towards awarding  

the death sentence and observed in paragraph 24 of the  

Report as follows:-

 “When the crime is committed in an extremely  brutal, grotesque, diabolical, revolting or dastardly  

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manner so as to arouse intense and extreme  indignation of the community and when collective  conscience of the community is petrified, one has to  lean towards the death sentence.”

39. A little later in paragraph 26 of the Report, this Court  

concluded that the convict was a menace to society and it was  

held as follows:  

“We are of the opinion that the appellant is a menace to  the society and shall continue to be so and he cannot be  reformed. We have no manner of doubt that the case in  hand falls in the category of the rarest of rare cases and  the trial court had correctly inflicted the death sentence  which had rightly been confirmed by the High Court.”

40. The judgment does not, with respect, indicate the  

material that led this Court to conclude what aroused the  

intense and extreme indignation of the community. Except the  

nature of the crime, it is not clear on what basis it concluded  

that the criminal was a menace to society and “shall continue  

to be so and he cannot be reformed”.

41. In some other cases, aggravating circumstances  

pertaining to the criminal (not the crime) have been considered  

relevant. Reference may be made to two decisions rendered by  

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this Court which, incidentally, seem to have overlooked the  

presumption of innocence.  

42. B.A. Umesh v. Registrar General, High Court of  

Karnataka, (2011) 3 SCC 85 was a case where the convict  

was found guilty of rape, murder and robbery. The crime was  

carried out in a depraved and merciless manner.  Two days  

after the incident, the local public caught him while he was  

attempting to escape from a house where he made a similar  

attempt to rob and assault a lady.  There was nothing in law to  

show that the convict was guilty of the second offence in as  

much as no trial was held. There were some recoveries from  

his house, which indicated that the convict had committed  

crimes in other premises also. Again, there was nothing in law  

to show that he was found guilty of those crimes. On these  

facts, despite the guilt of the criminal not having been  

established in any other case, the convict was found incapable  

of rehabilitation and the death sentence awarded to him was  

confirmed.

43. Sushil Murmu v. State of Jharkhand, (2004) 2 SCC  

338 was a case of child sacrifice. This Court confirmed the  

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death sentence awarded to the criminal after considering the  

fact that he was being tried for a similar offence. Significantly,  

the convict was still an under-trial and had not been found  

guilty of that similar offence. Nevertheless, this was found  

relevant for upholding the death sentence awarded to him.  

44. We also have some cases where, despite the nature of the  

crime, some criminals have got the benefit of “mitigating  

circumstances”  and their death penalty has been reduced to  

imprisonment for life or for a term without remission.

45. Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC  

28 was a case where the convict had raped a one-and-a-half  

year old child who died as a result of the unfortunate incident.  

This Court found that the crime committed was serious and  

heinous and the criminal had a dirty and perverted mind and  

had no control over his carnal desires. Nevertheless, this  

Court found it difficult to hold that the criminal was such a  

dangerous person that to spare his life would endanger the  

community. This Court reduced the sentence to imprisonment  

for life since the case was one in which a “humanist approach”  

should be taken in the matter of awarding punishment.

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46. Dilip Premnarayan Tiwari was a case in which three  

convicts had killed two persons and grievously injured two  

others, leaving them for dead. A third victim later succumbed  

to his injuries. While noticing that the crime was in the nature  

of, what is nowadays referred to as ‘honour killing’, this Court  

reduced the death sentence awarded to two of the criminals to  

imprisonment for life with a direction that they should not be  

released until they complete 25 years of actual imprisonment.  

The third criminal was sentenced to undergo 20 years of  

actual imprisonment. That these criminals were young  

persons who did not have criminal antecedents weighed in  

reducing their death sentence.

47. Sebastian v. State of Kerala, (2010) 1 SCC 58 was a  

case in which the criminal had raped and murdered a two-

year-old child.  He was found to be a pedophile with  

“extremely violent propensities”.  Earlier, in 1998, he was  

convicted of an offence under Section 354 of the IPC, that is,  

assault or use of criminal force on a woman with intent to  

outrage her modesty, an offence carrying a maximum sentence  

of two years imprisonment with fine.  Subsequently, he was  

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convicted for a more serious offence under Sections 302, 363  

and 376 of the IPC but an appeal was pending against his  

conviction.  The convict also appears to have been tried for the  

murder of several other children but was acquitted in 2005  

with the benefit of doubt, the last event having taken place  

three days after he had committed the rape and murder of the  

two year old child.

48. Notwithstanding the nature of the offence as well as his  

“extremely violent propensities”, the sentence of death  

awarded to him was reduced to imprisonment for the rest of  

his life.

49. Rajesh Kumar v. State, (2011) 13 SCC 706 was a case  

in which the appellant had murdered two children.  One of  

them was four and a half years old and the criminal had slit  

his throat with a piece of glass which he obtained from  

breaking the dressing table.  The other child was an infant of  

eight months who was killed by holding his legs and hitting  

him on the floor. Despite the brutality of the crime, the death  

sentence awarded to this convict was reduced to that of life  

imprisonment.  It was held that he was not a continuing threat  

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to society and that the State had not produced any evidence to  

show that he was incapable of reform and rehabilitation.

50. Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 was  

a case in which a three-year-old child was subjected to rape,  

an unnatural offence and murder.  The convict was also found  

guilty of causing the disappearance of evidence.  The sentence  

of death awarded to him was reduced to imprisonment for life  

subject to remissions. It was held that there was nothing to  

suggest that he would repeat the offence. This Court  

proceeded on the premise that the convict might reform over a  

period of years since there was no evidence of any earlier  

offence committed by him.

51. Reference has been made to these decisions cited by  

learned counsel, certainly not with a view to be critical of the  

opinion expressed, but with a view to demonstrate the judge-

centric approach to sentencing adverted to in Swamy  

Shraddananda and endorsed in Bariyar and the existence of  

the uncertainty principle in awarding life imprisonment or the  

death penalty.

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Standardization and categorization of crimes:   

52. Despite Bachan Singh, the “particular crime” continues  

to play a more important role than the “crime and criminal” as  

is apparent from some of the cases mentioned above.  

Standardization and categorization of crimes was attempted in  

Machhi Singh for the practical application of the rarest of  

rare cases principle. This was discussed in Swamy  

Shraddananda. It was pointed out in paragraph 33 of the  

Report that the Constitution Bench in Jagmohan Singh and  

Bachan Singh “had firmly declined to be drawn into making  

any standardization or categorization of cases for awarding  

death penalty”. In fact, in Bachan Singh the Constitution  

Bench gave over half a dozen reasons against the argument for  

standardization or categorization of cases. Swamy  

Shraddananda observed that Machhi Singh overlooked the  

fact that the Constitution Bench in Jagmohan Singh and  

Bachan Singh had “resolutely refrained”  from such an  

attempt.  Accordingly, it was held that even though the five  

categories of crime (manner of commission of murder, motive  

for commission of murder, anti-social or socially abhorrent  

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nature of the crime, magnitude of crime and personality of  

victim of murder) delineated in Machhi Singh provide very  

useful guidelines, nonetheless they could not be taken as  

inflexible, absolute or immutable.  

53. Indeed, in Swamy Shraddananda this Court went so  

far as to note in paragraph 48 of the Report that in attempting  

to standardize and categorize crimes, Machhi Singh  

“considerably enlarged the scope for imposing death penalty”  

that was greatly restricted by Bachan Singh.

54. It appears to us that the standardization and  

categorization of crimes in Machhi Singh has not received  

further importance from this Court, although it is referred to  

from time to time. This only demonstrates that though Phase  

II in the development of a sound sentencing policy is still alive,  

it is a little unsteady in its application, despite Bachan Singh.

Issue of remission of sentence:

55. Swamy Shraddananda and some of the decisions  

referred to therein have taken us to Phase III in the evolution  

of a sound sentencing policy. The focus in this phase is on  

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criminal law and sentencing, and we are really concerned with  

this in the present case.  The issue under consideration in this  

phase is the punishment to be given in cases where the death  

penalty ought not to be awarded, and a life sentence is  

inadequate given the power of remission available with the  

appropriate Government under Section 432 of the Cr.P.C. In  

such a situation, what is the punishment that is  

commensurate with the offence?  

56. In Swamy Shraddananda this Court embarked on a  

journey to answer this question.  In doing so, this Court noted  

the mandate of Bachan Singh that we must not only look at  

the crime but also give due consideration to the circumstances  

of the criminal.  It was noted that this Court “must lay down a  

good and sound legal basis for putting the punishment of  

imprisonment for life, awarded as substitute for death penalty,  

beyond any remission and to be carried out as directed by the  

Court so that it may be followed in appropriate cases as a  

uniform policy not only by this Court but also by the High  

Court, being the superior courts in their respective States.”  

The subject of discussion in this phase, therefore, is remission  

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Page 32

under Section 432 of the Cr.P.C. of a sentence awarded for a  

capital offence.

57. It is necessary, in this context, to be clear that the  

constitutional power under Article 72 and Article 161 of the  

Constitution is, as yet, not the subject matter of discussion,  

particularly in this case. Nor is the power of commutation  

under Section 433 of the Cr.P.C. under discussion. What is  

under limited discussion in this case is the remission power  

available to the appropriate Government under Section 432 of  

the Cr.P.C.  

58. A reading of some recent decisions delivered by this  

Court seems to suggest that the remission power of the  

appropriate Government has effectively been nullified by  

awarding sentences of 20 years, 25 years and in some cases  

without any remission. Is this permissible? Can this Court (or  

any Court for that matter) restrain the appropriate  

Government from granting remission of a sentence to a  

convict? What this Court has done in Swamy Shraddananda  

and several other cases, by giving a sentence in a capital  

offence of 20 years or 30 years imprisonment without  

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Page 33

remission, is to effectively injunct the appropriate Government  

from exercising its power of remission for the specified period.  

In our opinion, this issue needs further and greater  

discussion, but as at present advised, we are of the opinion  

that this is not permissible. The appropriate Government  

cannot be told that it is prohibited from granting remission of  

a sentence.  Similarly, a convict cannot be told that he cannot  

apply for a remission in his sentence, whatever the reason.  

59. It is true that a convict undergoing a sentence does not  

have right to get a remission of sentence, but he certainly does  

have a right to have his case considered for the grant of  

remission, as held in State of Haryana v. Mahender Singh,  

(2007) 13 SCC 606 and State of Haryana v. Jagdish,  

(2010) 4 SCC 216.

60. Swamy Shraddananda approached this issue from a  

particular perspective, namely, what could be the “good and  

sound legal basis”  to give effect to the observations of this  

Court in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745  

that:

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“..… we may suggest that life imprisonment which strictly  means imprisonment for the whole of the man’s life but  in practice amounts to incarceration for a period between  10 and 14 years may, at the option of the convicting  court, be subject to the condition that the sentence of  imprisonment shall last as long as life lasts, where there  are exceptional indications of murderous recidivism and  the community cannot run the risk of the convict being  at large.”

61. We look at the issue from a slightly different perspective.  

Section 45 of the IPC defines life as denoting the life of a  

human being, unless the contrary appears from the context.  

Therefore, when a punishment for murder is awarded under  

Section 302 of the IPC, it might be imprisonment for life,  

where life denotes the life of the convict or death. The term of  

sentence spanning the life of the convict, can be curtailed by  

the appropriate Government for good and valid reasons in  

exercise of its powers under Section 432 of the Cr.P.C.  

Broadly, this Section statutorily empowers the appropriate  

Government to suspend the execution of a sentence or to remit  

the whole or any part of the punishment of a convict [sub-

section (1)]. But, the statute provides some inherent  

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procedural and substantive checks on the arbitrary exercise of  

this power.

Procedural check on arbitrary remissions:

62. There does not seem to be any decision of this Court  

detailing the procedure to be followed for the exercise of power  

under Section 432 of the Cr.P.C. But it does appear to us that  

sub-section (2) to sub-section (5) of Section 432 of the Cr.P.C.  

lay down the basic procedure, which is making an application  

to the appropriate Government for the suspension or  

remission of a sentence, either by the convict or someone on  

his behalf. In fact, this is what was suggested in Samjuben  

Gordhanbhai Koli v. State of Gujarat, (2010) 13 SCC 466  

when it was observed that since remission can only be granted  

by the executive authorities, the appellant therein would be  

free to seek redress from the appropriate Government by  

making a representation in terms of Section 432 of the Cr.P.C.  

Section 432 of the Cr.P.C. reads as follows:-

432. Power to suspend or remit sentences — (1) When  any person has been sentenced to punishment for an  offence, the appropriate Government may, at any time,  without conditions or upon any conditions which the  

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person sentenced accepts, suspend the execution of his  sentence or remit the whole or any part of the  punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate  Government for the suspension or remission of a  sentence, the appropriate Government may require the  presiding Judge of the Court before or by which the  conviction was had or confirmed, to state his opinion as  to whether the application should be granted or refused,  together with his reasons for such opinion and also to  forward with the statement of such opinion a certified  copy of the record of the trial or of such record thereof as  exists.

(3) If any condition on which a sentence has been  suspended or remitted is, in the opinion of the  appropriate Government, not fulfilled, the appropriate  Government may cancel the suspension or remission,  and thereupon the person in whose favour the sentence  has been suspended or remitted may, if at large, be  arrested by any police officer, without warrant and  remanded to undergo the unexpired portion of the  sentence.

(4) The condition on which a sentence is suspended or  remitted under this section may be one to be fulfilled by  the person in whose favour the sentence is suspended or  remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or  special orders, give directions as to the suspension of  sentences and the conditions on which petitions should  be presented and dealt with:

Provided that in the case of any sentence (other  than a sentence of fine) passed on a male person above  the age of eighteen years, no such petition by the person  

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sentenced or by any other person on his behalf shall be  entertained, unless the person sentenced is in jail, and—

(a) where such petition is made by the person  sentenced, it is presented through the officer in  charge of the jail; or (b) where such petition is made by any other person,  it contains a declaration that the person sentenced  is in jail.

(6) The provisions of the above sub-sections shall also  apply to any order passed by a Criminal Court under any  section of this Code or of any other law which restricts  the liberty of any person or imposes any liability upon  him or his property.

(7) In this section and in Section 433, the expression  “appropriate Government” means, —

(a) in cases where the sentence is for an offence  against, or the order referred to in sub-section (6) is  passed under, any law relating to a matter to which  the executive power of the Union extends, the  Central Government; (b) in other cases, the Government of the State  within which the offender is sentenced or the said  order is passed.

63. It appears to us that an exercise of power by the  

appropriate Government under sub-section (1) of Section 432  

of the Cr.P.C. cannot be suo motu for the simple reason that  

this sub-section is only an enabling provision. The appropriate  

Government is enabled to “override”  a judicially pronounced  

sentence, subject to the fulfillment of certain conditions. Those  

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conditions are found either in the Jail Manual or in statutory  

rules. Sub-section (1) of Section 432 of the Cr.P.C. cannot be  

read to enable the appropriate Government to “further  

override”  the judicial pronouncement over and above what is  

permitted by the Jail Manual or the statutory rules. The  

process of granting “additional”  remission under this Section  

is set into motion in a case only through an application for  

remission by the convict or on his behalf. On such an  

application being made, the appropriate Government is  

required to approach the presiding judge of the Court before or  

by which the conviction was made or confirmed to opine (with  

reasons) whether the application should be granted or refused.  

Thereafter, the appropriate Government may take a decision  

on the remission application and pass orders granting  

remission subject to some conditions, or refusing remission.  

Apart from anything else, this statutory procedure seems quite  

reasonable in as much as there is an application of mind to  

the issue of grant of remission. It also eliminates  

“discretionary”  or en masse release of convicts on “festive”  

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occasions since each release requires a case-by-case basis  

scrutiny.

64. It must be remembered in this context that it was held in  

State of Haryana v. Mohinder Singh, (2000) 3 SCC 394  

that the power of remission cannot be exercised arbitrarily.  

The decision to grant remission has to be well informed,  

reasonable and fair to all concerned. The statutory procedure  

laid down in Section 432 of the Cr.P.C. does provide this check  

on the possible misuse of power by the appropriate  

Government.   

Substantive check on arbitrary remissions:

65. For exercising the power of remission to a life convict, the  

Cr.P.C. places not only a procedural check as mentioned  

above, but also a substantive check.  This check is through  

Section 433-A of the Cr.P.C. which provides that when the  

remission of a sentence is granted in a capital offence, the  

convict must serve at least fourteen years of imprisonment. Of  

course, the requirement of a minimum of fourteen years  

incarceration may perhaps be relaxed in exercising power  

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under Article 72 and Article 161 of the Constitution and  

Section 433 of the Cr.P.C. but, as mentioned above, we are  

presently not concerned with these provisions and say nothing  

in this regard, one way or the other.  

66. Section 433-A of the Cr.P.C. reads as follows:-  

433-A. Restriction on powers of remission or  commutation in certain cases.—  Notwithstanding  anything contained in Section 432, where a sentence of  imprisonment for life is imposed on conviction of a  person for an offence for which death is one of the  punishments provided by law, or where a sentence of  death imposed on a person has been commuted under  Section 433 into one of imprisonment for life, such  person shall not be released from prison unless he had  served at least fourteen years of imprisonment.

67. In this context, it is necessary to refer to the decisions of  

the Constitution Bench in Gopal Vinayak Godse v. State of  

Maharashtra, AIR 1961 SC 600 and Maru Ram v. Union of  

India, (1981) 1 SCC 107. Both these decisions were  

considered in Ashok Kumar v. Union of India, (1991) 3 SCC  

498.  

68. In Godse the Constitution Bench dealt with the plea of  

premature release and held that life imprisonment means that  

the prisoner will remain in prison for the rest of his life. Credit  

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for remissions given or awarded has a meaning only if the  

imprisonment is for a definite period. Since life imprisonment  

is for an indefinite period, remissions earned or awarded are  

really theoretical. This is what this Court had to say:-

“Briefly stated the legal position is this: Before Act 26 of  1955 a sentence of transportation for life could be  undergone by a prisoner by way of rigorous  imprisonment for life in a designated prison in India.  After the said Act, such a convict shall be dealt with in  the same manner as one sentenced to rigorous  imprisonment for the same term. Unless the said  sentence is commuted or remitted by appropriate  authority under the relevant provisions of the Indian  Penal Code or the Code of Criminal Procedure, a prisoner  sentenced to life imprisonment is bound in law to serve  the life term in prison. The rules framed under the  Prisons Act enable such a prisoner to earn remissions –  ordinary, special and State – and the said remissions will  be given credit towards his term of imprisonment. For the  purpose of working out the remissions the sentence of  transportation for life is ordinarily equated with a definite  period, but it is only for that particular purpose and not  for any other purpose. As the sentence of transportation  for life or its prison equivalent, the life imprisonment, is  one of indefinite duration, the remissions so earned do  not in practice help such a convict as it is not possible to  predicate the time of his death. That is why the rules  provide for a procedure to enable an appropriate  government to remit the sentence under Section 401  [now Section 432] of the Code of Criminal Procedure on a  consideration of the relevant factors, including the period  of remissions earned.”

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69. Maru Ram affirmed the view taken in Godse that in  

matters of life imprisonment, remissions earned or awarded  

are unreal and become relevant only if there is a fictional  

quantification of the period of imprisonment. More  

importantly, it was held that remissions earned or awarded  

cannot be the basis for the determination of the fictional  

period of imprisonment. It was held (in paragraph 25 of the  

Report):-

“Ordinarily where a sentence is for a definite term, the  calculus of remissions may benefit the prisoner to instant  release at that point where the subtraction result is zero.  Here, we are concerned with life imprisonment and so we  come upon another concept bearing on the nature of  sentence which has been highlighted in Godse case.  Where the sentence is indeterminate and of uncertain  duration, the result of subtraction from an uncertain  quantity is still an uncertain quantity and release of the  prisoner cannot follow except on some fiction of  quantification of a sentence of uncertain duration.”

70. It was then held in the same paragraph:-  

“Since death was uncertain, deduction by way of  remission did not yield any tangible date for release and  so the prayer of Godse was refused. The nature of a life  sentence is incarceration until death, judicial  sentence of imprisonment for life cannot be in  jeopardy merely because of the long accumulation of  remissions.” (emphasis given by us).  

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71. On the basis of the above decisions, the conclusion  

drawn in Ashok Kumar was that remissions have a limited  

scope. They have no significance till the exercise of power  

under Section 432 of the Cr.P.C. It was held, in the following  

words:-

“It will thus be seen from the ratio laid down in the  aforesaid two cases that where a person has been  sentenced to imprisonment for life the remissions earned  by him during his internment in prison under the  relevant remission rules have a limited scope and must  be confined to the scope and ambit of the said rules and  do not acquire significance until the sentence is remitted  under Section 432, in which case the remission would be  subject to limitation of Section 433-A of the Code, or  constitutional power has been exercised under Article  72/161 of the Constitution.”

72. On this issue, it was questioned in Godse whether there  

is any provision of law where under a sentence for life  

imprisonment, without any formal remission by the  

appropriate Government, can be automatically treated as one  

for a definite period. It was observed that no such provision is  

found in the Indian Penal Code, Code of Criminal Procedure or  

the Prisons Act. It was noted that though the Government of  

India stated before the Judicial Committee of the Privy Council  

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in Kishori Lal v. Emperor, AIR 1945 PC 64 that, having  

regard to Section 57 of the IPC, twenty years imprisonment  

was equivalent to a sentence of transportation for life, the  

Judicial Committee did not express its final opinion on that  

question. However, in Godse the Constitution Bench  

addressed this in the light of the Bombay Rules governing the  

remission system and concluded that orders of the appropriate  

Government under Section 401 of the Criminal Procedure  

Code [now Section 432 of the Cr.P.C] are a pre-requisite for  

release. It was held that a prisoner sentenced to  

transportation for life has no indefeasible right to an  

unconditional release on the expiry of a particular term  

including remissions. “The rules under the Prisons Act do not  

substitute a lesser sentence for a sentence of transportation  

for life.”   

73. This view was followed in State of Madhya Pradesh v.  

Ratan Singh, (1976) 3 SCC 470 in the following words:-

“It is, therefore, manifest from the decision of this Court  [in Godse] that the Rules framed under the Prisons Act  or under the Jail Manual do not affect the total period  which the prisoner has to suffer but merely amount to  administrative instructions regarding the various  

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remissions to be given to the prisoner from time to time  in accordance with the rules. This Court further pointed  out that the question of remission of the entire sentence  or a part of it lies within the exclusive domain of the  appropriate Government under Section 401 of the Code  of Criminal Procedure and neither Section 57 of the  Indian Penal Code nor any Rules or local Acts can stultify  the effect of the sentence of life imprisonment given by  the court under the Indian Penal Code. In other words,  this Court has clearly held that a sentence for life would  enure till the lifetime of the accused as it is not possible  to fix a particular period of the prisoner's death and  remissions given under the Rules could not be regarded  as a substitute [of a lesser sentence] for a sentence of  transportation for life. In these circumstances, therefore,  it is clear that the High Court was in error in thinking  that the respondent was entitled to be released as of right  on completing the term of 20 years including the  remissions.”  

74. Under the circumstances, it appears to us there is a  

misconception that a prisoner serving a life sentence has an  

indefeasible right to release on completion of either fourteen  

years or twenty years imprisonment. The prisoner has no such  

right. A convict undergoing life imprisonment is expected to  

remain in custody till the end of his life, subject to any  

remission granted by the appropriate Government under  

Section 432 of the Cr.P.C. which in turn is subject to the  

procedural checks in that Section and the substantive check  

in Section 433-A of the Cr.P.C.

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75. In a sense, therefore, the application of Section 432 of the  

Cr.P.C. to a convict is limited. A convict serving a definite term  

of imprisonment is entitled to earn a period of remission or  

even be awarded a period of remission under a statutory rule  

framed by the appropriate Government or under the Jail  

Manual. This period is then offset against the term of  

punishment given to him. In such an event, if he has  

undergone the requisite period of incarceration, his release is  

automatic and Section 432 of the Cr.P.C. will not even come  

into play. This Section will come into play only if the convict is  

to be given an “additional” period of remission for his release,  

that is, a period in addition to what he has earned or has been  

awarded under the Jail Manual or the statutory rules.

76. In the case of a convict undergoing life imprisonment, he  

will be in custody for an indeterminate period. Therefore,  

remissions earned by or awarded to such a life convict are only  

notional. In his case, to reduce the period of incarceration, a  

specific order under Section 432 of the Cr.P.C. will have to be  

passed by the appropriate Government. However, the reduced  

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period cannot be less than 14 years as per Section 433-A of  

the Cr.P.C.  

77. Therefore, Section 432 of the Cr.P.C. has application only  

in two situations: (1) Where a convict is to be given  

“additional” remission or remission for a period over and above  

the period that he is entitled to or he is awarded under a  

statutory rule framed by the appropriate Government or under  

the Jail Manual. (2) Where a convict is sentenced to life  

imprisonment, which is for an indefinite period, subject to  

procedural and substantive checks.

78. What Section 302 of the IPC provides for is only two  

punishments – life imprisonment and death penalty. In several  

cases, this Court has proceeded on the postulate that life  

imprisonment means fourteen years of incarceration, after  

remissions. The calculation of fourteen years of incarceration  

is based on another postulate, articulated in Swamy  

Shraddananda, namely that a sentence of life imprisonment  

is first commuted (or deemed converted) to a fixed term of  

twenty years on the basis of the Karnataka Prison Rules, 1974  

and a similar letter issued by the Government of Bihar.  

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Apparently, rules of this nature exist in other States as well.  

Thereafter, remissions earned or awarded to a convict are  

applied to the commuted sentence to work out the period of  

incarceration to fourteen years.  

79. This re-engineered calculation can be made only after the  

appropriate Government artificially determines the period of  

incarceration. The procedure apparently being followed by the  

appropriate Government is that life imprisonment is artificially  

considered to be imprisonment for a period of twenty years. It  

is this arbitrary reckoning that has been prohibited in Ratan  

Singh. A failure to implement Ratan Singh has led this Court  

in some cases to carve out a special category in which  

sentences of twenty years or more are awarded, even after  

accounting for remissions. If the law is applied as we  

understand it, meaning thereby that life imprisonment is  

imprisonment for the life span of the convict, with procedural  

and substantive checks laid down in the Cr.P.C. for his early  

release we would reach a legally satisfactory result on the  

issue of remissions. This makes an order for incarceration for  

a minimum period of 20 or 25 or 30 years unnecessary.  

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Conclusion:

80. The broad result of our discussion is that a relook is  

needed at some conclusions that have been taken for granted  

and we need to continue the development of the law on the  

basis of experience gained over the years and views expressed  

in various decisions of this Court. To be more specific, we  

conclude:

1. This Court has not endorsed the approach of  

aggravating and mitigating circumstances in Bachan  

Singh.  However, this approach has been adopted in  

several decisions.  This needs a fresh look.  In any  

event, there is little or no uniformity in the  

application of this approach.

2. Aggravating circumstances relate to the crime while  

mitigating circumstances relate to the criminal. A  

balance sheet cannot be drawn up for comparing the  

two. The considerations for both are distinct and  

unrelated. The use of the mantra of aggravating and  

mitigating circumstances needs a review.  

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3. In the sentencing process, both the crime and the  

criminal are equally important. We have,  

unfortunately, not taken the sentencing process as  

seriously as it should be with the result that in  

capital offences, it has become judge-centric  

sentencing rather than principled sentencing.  

4. The Constitution Bench of this Court has not  

encouraged standardization and categorization of  

crimes and even otherwise it is not possible to  

standardize and categorize all crimes.

5. The grant of remissions is statutory. However, to  

prevent its arbitrary exercise, the legislature has built  

in some procedural and substantive checks in the  

statute. These need to be faithfully enforced.

6. Remission can be granted under Section 432 of the  

Cr.P.C. in the case of a definite term of sentence. The  

power under this Section is available only for  

granting “additional”  remission, that is, for a period  

over and above the remission granted or awarded to a  

convict under the Jail Manual or other statutory  

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rules. If the term of sentence is indefinite (as in life  

imprisonment), the power under Section 432 of the  

Cr.P.C. can certainly be exercised but not on the  

basis that life imprisonment is an arbitrary or  

notional figure of twenty years of imprisonment.

7. Before actually exercising the power of remission  

under Section 432 of the Cr.P.C. the appropriate  

Government must obtain the opinion (with reasons)  

of the presiding judge of the convicting or confirming  

Court. Remissions can, therefore, be given only on a  

case-by-case basis and not in a wholesale manner.  

81. Given these conclusions, we are of the opinion that in  

cases such as the present, there is considerable uncertainty  

on the punishment to be awarded in capital offences – whether  

it should be life imprisonment or death sentence. In our  

opinion, due to this uncertainty, awarding a sentence of life  

imprisonment, in cases such as the present is not  

unquestionably foreclosed. More so when, in this case, there is  

no evidence (contrary to the conclusion of the High Court) that  

Seema’s body was burnt by Sandeep from below the waist with  

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a view to destroy evidence of her having been subjected to  

sexual harassment and rape. There is also no evidence (again  

contrary to the conclusion of the High Court) that Narender  

was a professional killer.  

82. Therefore, we allow these appeals to the extent that the  

death penalty awarded to the appellants is converted into a  

sentence of life imprisonment, subject to what we have said  

above.

83. We place on record our appreciation for the efforts put in  

by both learned counsel for the assistance rendered in this  

case.  

..….…….………………………….J. (K.S. Radhakrishnan)

...…….…….……………………..J.          (Madan B. Lokur)  

New Delhi; November 20, 2012  

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