Page 1

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 659 OF 2006

State of Rajasthan … Appellant (s)   

Versus

Jamil Khan … Respondent  (s)

J U D G M E N T  

KURIAN, J.:   

1. All murders shock the community; but certain murders shock  

the  conscience  of  the  Court  and  the  community.  The  

distinguishing aspect of the latter category is that there is  

shock coupled with extreme revulsion. What should be the  

penological approach in that category is one question arising  

for  consideration  in  this  case.  What  is  the  scope  of  

consideration of Death Reference by the High Court under  

Chapter  XXVIII  of  the  Code  of  Criminal  Procedure,  1973  

(hereinafter  referred  to  as  ‘Cr.PC’),  is  the  other  question.  

Whether  there  is  any restriction  on the  exercise  of  power  

under Section 432 Cr.PC for remission and Section 433 Cr.PC  

1

REPORTABLE

Page 2

for commutation in cases of minimum sentence is the third  

main issue.

2. On 23.12.2002, Pooja, a tiny girl below five years of age was  

brutally raped and thereafter murdered by the respondent.  

He packed the dead body in a sack and further in a bag and  

secretly left it in a train. By Judgment dated 15.04.2004, the  

Sessions Court, having regard to the overwhelming evidence,  

convicted  the respondent  under  Section  302 of  the  Indian  

Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and  

sentenced  him  to  death.  He  was  also  found  guilty  under  

Section 376 of IPC and was sentenced to imprisonment for  

life with a fine of Rs.2,000/-. Under Section 201 of IPC, he was  

convicted and sentenced to rigorous imprisonment for three  

years and a fine of Rs.500/-. There was default clause as well.  

The Sessions Court mainly relied on the decision of this Court  

in  Kamta Tiwari vs.  State of Madhya Pradesh1. In that  

case, a seven year old child was raped, murdered and the  

body  was  thrown  into  a  well.  This  Court  awarded  death  

sentence.  In  the  instant  case,  the  Death  Reference  was  

considered by the  High Court  of  Rajasthan along with  the  

Appeal leading to the impugned Judgment dated 09.11.2004.

1 (1996) 6 SCC 250

2

Page 3

The case law on sentencing has been extensively referred  

to by the High Court. But without reference to the aggravating  

or mitigating circumstances or to the special reasons, the High  

Court held that the case does not fall in the category of rarest  

of rare cases warranting death sentence. Thus, the High Court  

declined  to  confirm  the  death  sentence  and  awarded  life  

imprisonment  under  Section  302  of  IPC.  The  conviction  and  

sentence under Sections 376 and 201 of IPC was maintained.  

3. The State has come in appeal contending that it is a fit case  

where  punishment  of  death  should  be  awarded  to  the  

respondent.   There  is  no  appeal  by  the  respondent  

challenging the conviction and sentence as confirmed by the  

High Court under Sections 302, 376 and 201 of IPC.  

4. Having regard to the above background, it is not necessary  

to  extensively  refer  to  the  factual  matrix,  except  for  the  

relevant aspects. However, to understand the nature of the  

crime, we shall refer to the injuries noticed by the medical  

board in the post mortem:  

“Ext.  genital  part  blood  stained  and  vaginal  bleeding  present,  vaginal  tear  (2nd degree)  extend upto  anal  office  postrly,  hymen  rupture,  cervix  admit  one  finger  loose,  vaginal smear is taken, send for FSL & slide is prepared from  vaginal secretion, send for FSL.

1. Ligature  mark  1cm  x  0.5cm  deep  is  present  around  the  whole  neck  below the  thyroid  cartilage,  

3

Page 4

base is brownish Red dry parchment lobe appearance  on  cut  sectioned  the  sub  cut  tissue  beneath  the  ligature mark is ecchymosed;

2. Abrasion- 3cm x 0.2cm in size three in number  parallel to each other, vertical position mid of the neck  antrly below the ligature mark;

3. Ligature mark 1cm breadth is present on antero  lateral and post part of middle of both leg, this mark is  post mortem in nature.

Injury No. 1 & 2 ante mortem in nature.”

5. In  the  opinion  of  the  Medical  Board,  asphyxia  due  to  

strangulation was the cause of death.

6. The  injuries  present  on  the  body  of  the  tiny  child  would  

clearly establish the barbaric nature of the commission of the  

offence.  The  respondent  had  some  previous  acquaintance  

with the child when he used to visit his parents who stayed in  

the  neigbourhood.  It  has  come  in  evidence  that  the  

respondent had planned the crime. On the fateful  day,  he  

had come to the place, drunk, carrying with him a sack and a  

blue  bag.  PW2,  who  knows  the  accused,  had  seen  him  

proceeding  towards  his  house  carrying  a  white  coloured  

katta  (sack) on his shoulder and a blue coloured bag in his  

hands. According to PW3, the accused had gone to his shop,  

bought  peanuts  and  madhu  gutka.  He  lured  the  child  by  

offering peanuts and took her to his parents’ house. PW3 had  

4

Page 5

seen the accused carrying the loaded bag on his shoulder. It  

is not necessary to discuss the other evidence available from  

the recovered articles which all have conclusively established  

that it was the respondent who committed the offence.  

7. Aggravating factors qua the crime and mitigating factors qua  

the  criminal  should  be  properly  balanced  so  as  to  decide  

whether an offence of murder would fall under the rarest of  

rare category to be visited with the extreme punishment of  

death. The Court, under Section 354(3) of Cr.PC, has to give  

special reasons, in case death sentence is awarded. The very  

decision of the Court that a case falls under the rarest of rare  

category would  ordinarily  meet  the requirement  of  special  

reasons under Section 354(3) of the Cr.PC since inclusion of a  

case in that category can be only on such finding. As held by  

the Constitution Bench of this Court in  Bachan Singh vs.  

State of Punjab2,  the finding would depend on facts and  

circumstances of each case. To quote:  

“201. …As we read Sections 354(3) and 235(2) and  other related provisions of the Code of 1973, it is quite  clear to us that for making the choice of punishment or  for  ascertaining  the  existence  or  absence  of  “special  reasons” in that context, the court must pay due regard  both   to     the crime and the criminal. What is the relative    weight to be given to the aggravating and mitigating  factors, depends on the facts and circumstances of the  particular case. More often than not, these two aspects  

2 (1980) 2 SCC 684

5

Page 6

are so intertwined that it is difficult to give a separate  treatment to each of them. This is so because “style is  the man”. In many cases, the extremely cruel or beastly  manner  of  the  commission  of  murder  is  itself  a  demonstrated index of the depraved character of  the  perpetrator. That is why, it is not desirable to consider  the circumstances of the crime and the circumstances  of  the  criminal  in  two  separate  watertight  compartments.  In  a  sense,  to  kill  is  to  be  cruel  and,  therefore all  murders are cruel.  But such cruelty may  vary in its degree of culpability. And it is only when the  culpability assumes the proportion of extreme depravity  that “special reasons” can legitimately be said to exist.”

(Emphasis supplied)

8. In  Machhi  Singh  and  Others vs.  State  of  Punjab3,  a  

three-Judge Bench of this Court has made an attempt to cull  

out certain aggravating and mitigating circumstances and it  

has  been  held  that  in  case  imprisonment  for  life  is  

inadequate in view of the peculiar aspects of the crime, then  

alone the sentence of death should be awarded. To quote:

“38. xxx xxx xxx

(i) The  extreme penalty  of  death  need  not  be    inflicted except in gravest cases of extreme  culpability.

(ii) Before  opting  for  the  death  penalty  the  circumstances of the ‘offender’ also require to  be  taken  into  consideration  along  with  the  circumstances of the ‘crime’.  

(iii) Life  imprisonment  is  the  rule  and  death  sentence  is  an  exception.  In  other  words  death sentence must be imposed only when  life imprisonment appears to be an altogether  inadequate punishment having regard to the  relevant  circumstances  of  the  crime,  and  

3 (1983) 3 SCC 470

6

Page 7

provided,  and  only  provided,  the  option  to  impose  sentence  of  imprisonment  for  life  cannot  be  conscientiously  exercised  having  regard to the nature and circumstances of the  crime and all the relevant circumstances.  

(iv) A  balance-sheet  of  aggravating  and  mitigating circumstances has to be drawn up  and in doing so the mitigating circumstances  have to be accorded full weightage and a just  balance  has  to  be  struck  between  the  aggravating and the mitigating circumstances  before the option is exercised.

39. In order to apply these guidelines  inter alia the  following questions may be asked and answered:

(a) Is  there  something  uncommon  about  the  crime  which  renders  sentence  of  imprisonment for life inadequate and calls for  a death sentence?

(b) Are the circumstances of the crime such that  there is  no alternative but  to  impose death  sentence  even  after  according  maximum  weightage  to  the  mitigating  circumstances  which speak in favour of the offender?

40.  If  upon taking an overall  global view of all  the  circumstances in the light of the aforesaid proposition  and taking into account the answers to the questions  posed  hereinabove,  the  circumstances  of  the  case  are such that death sentence is warranted, the court  would proceed to do so.”

(Emphasis supplied)   

9. In  Shankar Kisanrao Khade vs.  State of Maharashtra4,  

referring to the recent decisions (of about fifteen years), this  

Court has summarized the mitigating factors and aggravating  

factors.   Young  age  of  the  accused,  the  possibility  of  

4 (2013) 5 SCC 546

7

Page 8

reforming and rehabilitating the accused, the accused having  

no  prior  criminal  record,  the  accused  not  likely  to  be  a  

menace or threat or danger to society or the community, the  

accused  having  been  acquitted  by  one  of  the  courts,  the  

crime  not  being  premeditated,  the  case  being  of  

circumstantial  evidence,  etc.,  are  some  of  the  mitigating  

factors  indicated  therein.  The  cruel,  diabolic,  inhuman,  

depraved and gruesome nature of the crime, the crime result  

in public abhorrence,  shocks the judicial  conscience or the  

conscience  of  society  or  the  community,  the  reform  or  

rehabilitation of the convict is not likely or that he would be a  

menace to society, the crime was either unprovoked or that  

it  was  premeditated,  etc.,  are  some  of  the  aggravating  

factors indicated in the said decision.

10. In State of Uttar Pradesh vs. Sattan alias Satyendra  

and Others5,  this  Court  had  an  occasion  to  consider  the  

penological purpose of sentencing. To quote:      

“30.  “21.‘9.  The  law  regulates  social  interests,  arbitrates conflicting claims and demands.  Security of  persons  and  property  of  the  people  is  an  essential  function  of  the  State.  It  could  be  achieved  through  instrumentality of criminal law. Undoubtedly, there is a  cross-cultural conflict where living law must find answer  to the new challenges and the courts are required to  mould the sentencing system to meet the challenges.  The contagion of  lawlessness  would  undermine social  

5 (2009) 4 SCC 736

8

Page 9

order  and  lay  it  in  ruins.  Protection  of  society  and  stamping out criminal proclivity must be the object of  law which must be achieved by imposing appropriate  sentence. Therefore, law as a cornerstone of the edifice  of "order" should meet the challenges confronting the  society. ...

10.  Therefore,  undue  sympathy  to  impose  inadequate sentence would do more harm to the justice  system  to  undermine  the  public  confidence  in  the  efficacy of law and society could not long endure under  such serious threats. It is, therefore, the duty of every  court  to  award proper  sentence having regard to the  nature of the offence and the manner in which it was  executed or committed etc. …”

(Emphasis supplied)

11. This  Court  did  not  mince  words  while  discussing  the  

requirement of adequate punishment in  Mahesh s/o Ram  

Narain and Others  vs.  State of Madhya Pradesh6.  To  

quote:

“6.  …it  will  be  a  mockery  of  justice  to  permit  these  appellants to escape the extreme penalty of law when  faced with such evidence and such cruel acts. To give  the lesser  punishment for  the appellants would be to  render the justicing system of this country suspect. The  common man will lose faith in courts. In such cases, he  understands  and  appreciates  the  language  of  deterrence more than the reformative jargon. ...”

(Emphasis supplied)

12. In Devender Pal Singh vs. State of NCT of Delhi and  

Another7, after referring to the Bachan Singh and Machhi  

6 (1987) 3 SCC 80 7 (2002) 5 SCC 234

9

Page 10

Singh cases (supra), this Court held that when the collective  

conscience of the community is so shocked, it will expect the  

judiciary to inflict death penalty. To quote:

“58. From Bachan Singh v. State of Punjab and Machhi  Singh and Others v. State of Punjab, the principle culled  out  is  that  when  the  collective  conscience  of  the  community is so shocked, that it will expect the holders  of  the  judicial  power  center  to  inflict  death  penalty  irrespective  of  their  personal  opinion  as  regards  desirability or otherwise of retaining death penalty, the  same can be awarded. It was observed: The  community  may  entertain  such  sentiment in  the  following circumstances:

(1) When the murder is committed in an extremely  brutal, grotesque, diabolical, revolting, or dastardly  manner  so  as  to  arouse  intense  and  extreme  indignation of the community. (2)  When the  murder  is  committed for  a  motive  which evinces total depravity and meanness; e.g.  murder by hired assassin for money or reward; or  cold-blooded murder for gains of a person   vis-a-vis    whom the murderer is in a dominating position or  in a position of trust; or murder is committed in the  course of betrayal of the motherland. (3)  When  murder  of  a  member  of  a  Scheduled  Caste or minority community etc. is committed not  for  personal  reasons  but  in  circumstances which  arouse social wrath; or in cases of ‘bride burning’  or ‘dowry deaths’ or when murder is committed in  order to remarry for the sake of extracting dowry  once again or to marry another woman on account  of infatuation. (4) When the crime is enormous in proportion. For  instance  when  multiple  murders,  say  of  all  or  almost  all  the  members  of  a  family  or  a  large  number  of  persons  of  a  particular  caste,  community, or locality, are committed. (5) When the victim of murder is an innocent child,  or a helpless woman or old or infirm person or a  

10

Page 11

person    vis-a-vis   whom  the  murderer  is  in  a    dominating  position,  or  a  public  figure  generally  loved and respected by the community.

If  upon  taking  an  overall  global  view  of  all  the  circumstances in the light of the aforesaid propositions  and taking into account the answers to the questions  posed by way of the test for the rarest of rare cases, the  circumstances of the case are such that death sentence  is warranted, the court would proceed to do so".

(Emphasis supplied)

13. According  to  Lord  Denning,  the  punishment  inflicted  for  

grave crimes should reflect the revulsion felt  by the great  

majority  of  citizens.  To  him,  deterrence,  reformation  or  

prevention are not the determinative factors. His statement  

to  the  Royal  Commission  on  Capital  Punishment  made  in  

1950 reads:

“Punishment is the way in which society expresses its  denunciation of wrong doing; and, in order to maintain  respect for the law, it is essential that the punishment  inflicted for grave crimes should adequately reflect the  revulsion felt by the great majority of citizens for them.  It is a mistake to consider the objects of punishments as  being  a  deterrent  or  reformative  or  preventive  and  nothing  else...  The  truth  is  that  some  crimes  are  so  outrageous  that  society  insists  on  adequate  punishment,  because  the  wrong  doer  deserves  it,  irrespective of whether it is a deterrent or not.”

(Emphasis supplied)

11

Page 12

14. As held by this Court in  Ajitsingh Harnamsingh Gujral  

vs.  State of Maharashtra8, a distinction has to be drawn  

between ordinary murders and murders which are gruesome,  

ghastly or horrendous. In such cases,  

“93. …While  life  sentence  should  be  given  in  the  former, the latter belongs to the category of the rarest  of  rare  cases,  and  hence  death  sentence  should  be  given. …”

 15. Any murder  would  cause a  shock  to  the society  but  all  

murders may not cause revulsion in society. Certain murders  

shock the collective conscience of the Court and community.  

Heinous  rape  of  minors  followed  by  murder  is  one  such  

instance of a crime which shocks and repulses the collective  

conscience  of  the  community  and  the  Court.  Such  crimes  

arouse  extreme revulsion  in  society.  While  culling  out  the  

rarest  of  rare  cases  on  the  basis  of  aggravating  and  

mitigating factors, we are of the view that such crimes, which  

shock  the  collective  conscience of  the  society  by  creating  

extreme  revulsion  in  the  minds  of  the  people,  are  to  be  

treated as the rarest of rare category.

16. Although the crime in the present case is gruesome and  

renders a loathsome shock to the community, we are bound  

by the ratio in Bachan Singh’s case (supra) which requires  8 (2011) 14 SCC 401

12

Page 13

the Court to consider the mitigating factors qua the criminal.  

In the instant case, the respondent no doubt was young at  

the time of the commission of the offence, above nineteen  

years of age. He was a labourer. But while considering the  

mitigating factors, poverty has to be understood in light of  

whether  it  was  a  factor  influencing  the  commission  of  

offence.  In  a  recent  decision  by  coordinate  Bench  of  this  

Court, authored by one of us (Kurian, J.) in  Sunil Damodar  

Gaikwad vs. State  of  Maharashtra9,  decided  on  

10.09.2013, in  Criminal Appeal Nos. 165-166 of 2011, it has  

been held that:

“Poverty,  socio-economic,  psychic  compulsions,  undeserved  adversities  in  life  are  thus  some  of  the  mitigating factors to be considered, in addition to those  indicated in Bachan Singh and Machhi Singh cases.”

That  was  a  case  where  a  poor  tailor  finding  it  difficult  to  

maintain his family of wife and three children, one of whom also  

required  constant  treatment,  decided to  wipe out  the  entire  

family. Poverty shall not be understood and applied as disjunct  

from  the  factual  position.  In  other  words,  poverty  or  socio-

economic,  psychic  or  undeserved  adversities  in  life  shall  be  

considered as mitigating factors only if  those factors have a  

compelling or advancing role to play in the commission of the  

9 JT (2013) SC 310

13

Page 14

crime  or  otherwise  influencing  the  criminal.  Thus,  merely  

because the offender is a poor person, his poverty will not be a  

mitigating factor. In this case the mitigating factor of the crime  

is not poverty. The lust fuelled crime of rape and murder and  

that too of a minor child of tender age has nothing to do with  

the  poverty,  socio-economic  background  or  other  psychic  

compulsions of the criminal. The decision in  Sunil Damodar  

Gaikwad’s case (supra) will stand clarified to the above extent.

17. In the instant case,  there cannot be any doubt that the  

crime is of extreme mental perversion. It was a well-planned  

crime as can be seen from the discussion at Paragraph 7 ibid.  

The major mitigating factor as far as respondent in this case  

is  concerned is  that  he  was  young.  However,  in  Shankar  

Kisanrao’s case (supra), this Court held that the fact that  

the accused is young by itself is not a major and deciding  

factor while considering the mitigating factors.  Dhananjoy  

Chatterjee vs.  State of W.B.10,  Jai Kumar vs.  State of  

M.P.11,  Shivu and Another vs. Registrar General, High  

Court of Karnataka and Another12,  Vikram Singh and  

Others vs.  State of Punjab13,  Atbir vs. Government Of  

10 (1994) 2 SCC 220: (1994) SCC (Cri) 358 11 (1999) 5 SCC 1: (1999) SCC (Cri) 638 12 (2007) 4 SCC 713 13 (2010) 3 SCC 56

14

Page 15

NCT  of  Delhi14,  Mohd.  Ajmal  Amir  Kasab  alias  Abu  

Mujahid vs. State  of  Maharashtra15,  are  some  of  the  

cases  where  this  Court,  in  view of  the  overwhelming  and  

aggravating  circumstances,  declined  to  consider  the  

mitigating factor of young age.

18. That the accused was under the influence of alcohol at the  

time of the commission of the offence also is not a mitigating  

factor.  It  is  not  a  case  where  somebody  had  forcefully  

administered intoxicating drinks or drugs to the respondent  

and  made  him  commit  the  offence.  That  he  had  taken  

alcoholic drinks at around 10.00 a.m. is also an indicator to  

the  premeditation  of  the  crime  shortly  thereafter.  Thus,  

having  regard  to  the  nature  of  the  crime,  the  manner  in  

which it was committed and above all, having regard to the  

major  aggravating  factor  of  extreme  repulsion  which  has  

shocked the collective conscience of the community and the  

Court, as also the sole mitigating factor of his young age, we  

are of the opinion that punishment of life  imprisonment is  

grossly inadequate.

19. We are also fortified in our view by the following decisions  

of this Court in similar circumstances. In  State of U.P. vs.  14 (2010) 9 SCC 1  15 (2012) 9 SCC 1

15

Page 16

Satish16, this Court reversed the acquittal by the High Court  

and awarded death sentence. It was case of rape and murder  

of a minor girl aged less than six years. Shivu (supra) was a  

case of rape and murder of an eighteen year old girl by the  

neighbours.  The death sentence on both the accused was  

upheld by this Court.  Bantu vs. State of Uttar Pradesh17  

was a case of the accused alluring a five year old child with a  

balloon,  committing rape and murder.  The death sentence  

was  upheld  by  this  Court.  Shivaji  alias  Dadya  Shankar  

Alhat vs. State of Maharashtra18 was a case of  a  nine  

year old child being taken by a neighbour who promised to  

help her to collect wood from the forest, raped and murdered  

her. This Court upheld the death sentence.  Mohd. Mannan  

alias Abdul Mannan vs. State of Bihar19, authored by one  

of us (Prasad, J.), is a case of rape and murder of a seven  

year old child. The death sentence awarded by the Sessions  

Court as confirmed by the High Court was upheld. Rajendra  

Pralhadrao Wasnik vs. State of Maharashtra20 is a case  

of rape and murder of a three year old girl child. There also,  

16 (2005) 3 SCC 114 17 (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353 18 (2008) 15 SCC 269 19 (2011) 5 SCC 317 20 (2012) 4 SCC 37: (2012) 2 SCC (Cri) 30

16

Page 17

the  death  sentence  awarded  by  the  Sessions  Court  as  

confirmed by the High Court was upheld by this Court.  

20. Although the High Court in this case referred to several  

decisions on sentencing,  it  is  sad to note that  there is  no  

discussion  on  any  of  the  aggravating  and  mitigating  

circumstances. There is no consideration as to whether the  

case on facts falls under the rarest of rare category.  

21. Chapter XXVIII of Cr.PC (containing Sections 366 to 371)  

deals with the process of confirmation of death sentence by  

the High Court. For the purpose of ready reference, we shall  

extract the provisions:  

“366. Sentence of death to be submitted by Court of  Session for confirmation.-(1) When the Court of Session  passes  a  sentence  of  death,  the  proceedings  shall  be  submitted to the High Court, and the sentence shall not be  executed unless it is confirmed by the High Court.

(2)  The  Court  passing  the  sentence  shall  commit  the  convicted person to jail custody under a warrant.

367. Power to direct further inquiry to be made or  additional  evidence  to  be  taken.-(1)  If,  when  such  proceedings are submitted, the High Court thinks that a  further inquiry should be made into or additional evidence  taken upon, any point bearing upon the guilt or innocence  of the convicted person, it may make such inquiry or take  such evidence itself, or direct it to be made or taken by  the Court of Session.

(2) Unless the High Court otherwise directs, the presence  of the convicted person may be dispensed with when such  inquiry is made or such evidence is taken.

17

Page 18

(3) When the inquiry or evidence (if any) is not made or  taken  by  the  High  Court,  the  result  of  such  inquiry  or  evidence shall be certified to such Court.

368. Power of  High  Court  to  confirm sentence or  annul conviction.-In  any case submitted under section  366, the High Court-  

(a)  may  confirm  the  sentence,  or  pass  any  other  sentence warranted by law, or

(b) may annul the conviction, and convict the accused  of any offence of which the Court of Session might  have convicted him, or order a new trial on the same  or an amended charge, or

(c)  may acquit the accused person:

Provided that no order of confirmation shall  be made  under this section until the period allowed for preferring  an appeal has expired, or, if an appeal is presented within  such period, until such appeal is disposed of.

369. Confirmation or new sentence to be signed by  two Judges.-In every case so submitted, the confirmation  of the sentence, or any new sentence or order passed by  the High Court, shall when such Court consists of two or  more Judges, be made, passed and signed by at least two  of them.

370.  Procedure  in  case  of  difference  of  opinion.- Where any such case is heard before a Bench of Judges  and such Judges are equally divided in opinion, the case  shall be decided in the manner provided by section 392.

371. Procedure in cases submitted to High Court for  confirmation.-In cases submitted by the Court of Session  to the High Court for  the confirmation of a sentence of  death, the proper officer of the High Court shall, without  delay, after the order of confirmation or other order has  been made by the High Court, send a copy of the order  under  the  seal  of  the High Court  and attested  with  his  official signature, to the Court of Session.”

18

Page 19

22. These  provisions  lay  down  the  detailed  procedure  on  

confirmation  of  death  sentence.   The  following  are  the  

mandatory requirements:

(i) Death Reference shall be heard by a Bench of minimum  two Judges. The Chief Justice being the master of roster  is free to constitute a Bench of more Judges.

(ii) On any point having a bearing on the guilt or innocence  of the convicted person, for which there is no clarity, the  High Court may, (a) conduct a further inquiry; (b) take additional evidence; (c) may  get  the  inquiry  conducted  or  additional  

evidence taken by the Sessions Court.

(iii) On the basis also of the inquiry or additional evidence, if  any, the High Court may, (a) confirm the death sentence;

however, in case the convict has filed an appeal,  the same has to be disposed of before passing  the order of confirmation; and,  no  order  of  confirmation  shall  be  passed  until the period allowed for filing an appeal has  expired.

(b) pass any other sentence;

(c) annul conviction;

(d) convict  the  accused  of  any  offence  which  the  Court of Sessions would or could have convicted  him.

(iv)         Amend the charges.

(v) Order  fresh  trial  on  charges  already  framed  or  on  amended charges.

(vi) May acquit the accused.

19

Page 20

(vii) In case the Bench is equally divided in opinion, their  opinions shall be laid before a third Judge of that Court  and the decision will depend on the opinion of the third  Judge.  

(viii) If the third Judge before whom the opinions have been  placed is of opinion that the matter should be heard by  a larger Bench of Judges, the reference has to be heard  by a larger Bench, in view of the requirement under  Section 392 of Cr.PC.  

23. The detailed procedure would clearly show the seriousness  

with which the High Court has to consider a reference for the  

confirmation of death sentence. In a recent decision in Kunal  

Majumdar vs. State of Rajasthan21, a coordinate Bench of  

this Court has held that it is a special and onerous duty of the  

High Court. To quote:

“18. … A duty is cast upon the High Court to examine  the nature and the manner in which the offence was  committed, the mens rea if any, of the culprit, the plight  of the victim as noted by the trial  court,  the diabolic  manner in which the offence was alleged to have been  performed, the ill-effects it had on the victim as well as  the society at large, the mindset of the culprit vis-à-vis  the  public  interest,  the  conduct  of  the  convict  immediately  after  the commission of  the offence and  thereafter, the past history of the culprit, the magnitude  of the crime and also the consequences it had on the  dependants  or  the  custodians  of  the  victim.  There  should be very wide range of consideration to be made  by the High Court dealing with the reference in order to  ensure  that  the  ultimate  outcome  of  the  reference  would  instill  confidence  in  the  minds  of  peace-loving  citizens  and  also  achieve  the  object  of  acting  as  a  deterrent for others from indulging in such crimes.”

21 (2012) 9 SCC 320

20

Page 21

24. The High Court must refer to the special reasons found by  

the Sessions Court for inclusion of the case in the rarest of  

rare category. It has to be seen that the Court of Sessions  

has already passed a sentence and what is required is only  

confirmation  before  execution.   On  the  facts  and  

circumstances of the case,  the High Court has to consider  

whether  the  case  actually  falls  under  the  rarest  of  rare  

category. In other words, in the process of consideration of a  

case for confirmation of death sentence, the High Court has  

to  see  whether  there  is  presence  or  absence  of  special  

reasons many of which are indicated in the decision in Kunal  

Majumdar’s case (supra). If on such consideration, the High  

Court finds that special reasons are available in the facts and  

circumstances of the case, the High Court has to confirm the  

death sentence. In the absence of such compelling special  

reasons, the High Court shall  award only imprisonment for  

life.

25. In  the  facts  of  the  present  case,  the  offence  was  

committed  in  2002.  The  accused  was  convicted  and  

sentenced to death by the Sessions Court in April, 2004. In  

November  2004,  the  High  Court  commuted  the  death  

sentence  to  life  imprisonment  but  maintained  the  other  

21

Page 22

punishments under Sections 376 and 201 of IPC of life and  

three  years  respectively.  The  State  moved  this  Court  in  

Special Leave Petition in May 2005. Leave was granted on  

08.05.2006.  For  one  reason  or  the  other,  the  matter  was  

finally  heard  only  in  September  2013.  The  question  is:  

Whether  this  Court  would  be  justified  in  imposing  the  

extreme punishment of death at this point of time?   

26. The Constitution  Bench of  this  Court  in  Triveniben vs.  

State of Gujarat22 and various other cases had occasion to  

consider the consequences of inordinate delay in disposal of  

mercy petitions under Article 72 or 161 of the Constitution of  

India. It has been held by this Court that when a matter is  

pending before this Court,  the person always has a ray of  

hope and hence, it cannot be said that the delay occasioned  

in  Court  would  be  a  ground  for  commutation  of  death  

sentence. To quote:  

“16. Even in this Court although there does not appear  to  be  a  specific  rule  but  normally  these  matters  are  given top priority. Although it was contended that this  reference before us - a Bench of five Judges, was listed  for hearing after a long interval of time. We do not know  why this reference could not be listed excepted what is  generally well-known the difficulty of providing a Bench  of five Judges but ordinarily it is expected that even in  this Court the matters where the capital punishment is  involved will be given top priority and shall be heard of  and disposed of as expeditiously as possible but it could  

22 (1989) 1 SCC 678

22

Page 23

not be doubted that so long as the matter is pending in  any court before final adjudication even the person who  has been condemned or  who has been sentenced to  death  has  a  ray  of  hope.  It  therefore  could  not  be  contended that he suffers that mental torture which a  person suffers when he knows that he is to be hanged  but waits for the doomsday. The delay therefore which  could be considered while considering the question of  commutation  of  sentence  of  death  into  one  of  life  imprisonment could only be from the date the judgment  by the Apex Court is pronounced i.e. when the judicial  process has come to an end.”

(Emphasis supplied)   

27. In a recent decision in Mahendra Nath Das vs. Union of  

India  and  Others23,  this  Court  had  considered  the  

consequence  of  delay  of  12  years  in  deciding  a  mercy  

petition under Article 72 of the Constitution of India and held  

that it was a case of inordinate delay causing mental torment  

to the convict, and hence commuted the sentence of death  

to life imprisonment.  

28. It is significant to note that all these were cases where the  

persons convicted under Section 302 of IPC and sentenced  

for  death had been waiting for  the decision on the mercy  

petitions.  The  instant  case  is  one  where  a  person  whose  

death sentence has been substituted to life  imprisonment.  

Apparently  reconciled to his  fate,  he has been serving his  

term. Whether, at this juncture, it would be just and proper to  23 (2013) 6 SCC 253

23

Page 24

alter his sentence to death is the disturbing question. State  

of Madhya Pradesh vs. Vishweshwar Kol24, authored by  

one of us (Prasad, J.), was a case where the Trial Court had  

convicted  the  accused  and  imposed  death  penalty  and  in  

appeal, the High Court acquitted him. It was a case of bride  

burning. The incident was of October, 2003. The Trial Court  

convicted  the  accused  under  Section  302  of  IPC  and  the  

sentence of death was passed on 30.04.2004. The High Court  

acquitted him on 06.12.2004 and this Court finding that it is a  

fit case for awarding death sentence and yet taking note of  

the course of events referred to above, it was held that:

“11.…  notwithstanding  the  horrendous  nature  of  the  crime and that it called for the capital punishment, we  find it difficult to reimpose the death sentence on the  accused at this stage.”

And the accused consequently  was awarded sentence of  life  

imprisonment.

29. In  the  case  before  us,  nine  years  have  passed  after  

substitution of his death sentence by life imprisonment. We  

are  reluctantly  of  the  view  that  it  would  not  be  just  and  

proper to alter the sentence from life imprisonment to death  

at this stage. In future, in order to avoid such contingencies,  

24 (2011) 11 SCC 472

24

Page 25

cases  where  enhancement  of  life  sentence  to  death  is  

sought, should be given due priority.  

30. Section  53  of  the  IPC  provides  for  the  following  

punishments:

“First.- Death; Secondly.- Imprisonment for life; xxx xxx xxx Fourthly.-Imprisonment,  which  is  of  two  descriptions,  namely:-

(1) Rigorous, that is, with hard labour; (2) Simple;

Fifthly.-Forfeiture of property; Sixthly.-Fine.”   

31. Imprisonment for life is till the end of the biological life of  

the person, as held by a Constitution Bench of this Court in  

Gopal  Vinayak  Godse vs.  The  State  of  Maharashtra  

and Others25. However, this Court has been, for quite some  

time,  conscious  of  the  liberal  approach  and  sometimes  

discriminatory too, taken by the States in exercise of their  

power under Sections 432 and 433 of Cr.PC in remitting or  

commuting  sentences.  In  Jagmohan  Singh vs.  State  of  

U.P.26,  this  Court  had  expressed  concern  about  such  

approach  made  by  the  States  in  remitting  life  sentences.  

That led to the amendment in Cr.PC introducing Section 433A  

by Act 45 of 1978. Under Section 433A of Cr.PC, a sentence  25 AIR 1961 SC 600 26 (1973) 1 SCC 20

25

Page 26

of imprisonment for life is imposed for an offence for which  

death is one of the punishments or where a death sentence  

is  commuted  to  life  under  Section  433,  he  shall  not  be  

released  unless  he  has  served  fourteen  years  of  

imprisonment.  It  appears  that  the  provision  has  been  

generally understood to mean that life sentence would only  

be fourteen years of incarceration. Taking judicial notice of  

such a trend,  this Court has,  in cases where imposition of  

death sentence would be too harsh and imprisonment for life  

(the  way  it  is  understood  as  above)  too  inadequate,  in  

several cases, has adopted different methods to ensure that  

the minimum term of life imprisonment ranges from at least  

twenty years to the end of natural life. In Shri Bhagwan vs.  

State of Rajasthan27,  Prakash Dhawal Khairnar (Patil)  

vs.  State of Maharashtra28 and  Ram  Anup Singh and  

Others vs.  State  of  Bihar29,  it  was  20  years;  in  Dilip  

Premnarayan  Tiwari  and  Another vs.  State  of  

Maharashtra30, it was 25 years; in Neel Kumar alias Anil  

Kumar vs.  State of  Haryana31,  it  was  30  years;  and in  

Swamy Shraddananda (2) alias Murali Manohar Mishra  

27 (2001) 6 SCC 296 28 (2002) 2 SCC 35 29 (2002) 6 SCC 686 30  (2010) 1 SCC 775 31 (2012) 5 SCC 766

26

Page 27

vs. State of Karnataka32, it was till the end of life without  

remission  or  commutation.  Ranjit  Singh  alias  Roda vs.  

Union Territory of Chandigarh33 is a case where a person  

committed  a  second  murder.   He  was  sentenced  for  life  

imprisonment  for  the first  murder.  Taking note of  the fact  

that  the  co-accused  was  not  given  death  sentence  and  

awarded  only  life  imprisonment,  this  Court  in  the  second  

offence also awarded only life imprisonment. However, it was  

made clear that:

“2. … in case any remission or commutation in respect  of  his  earlier  sentence is  granted to  him the present  sentence should commence thereafter.”

32. However in some cases, the Court had also been voicing  

concern about the statutory basis of such orders. We are of  

the view that  it  will  do  well  in  case  a  proper  amendment  

under Section 53 of IPC is  provided,  introducing one more  

category  of  punishment  -  life  imprisonment  without  

commutation or remission. Dr. Justice V. S. Malimath in the  

Report  on  “Committee  of  Reforms  of  Criminal  Justice  

System”, submitted in 2003, had made such a suggestion but  

so far no serious steps have been taken in that regard. There  

32 (2008) 13 SCC 767 33 (1984) 1 SCC 31

27

Page 28

could  be  a  provision  for  imprisonment  till  death  without  

remission or commutation.

33. In the present case, the respondent has been awarded life  

imprisonment under Section 302 of IPC. Under Section 376 of  

IPC also he has been awarded life imprisonment. The third  

substantive sentence is under Section 201 of IPC. All these  

sentences are ordered to run concurrently. The sentence of  

life  imprisonment  is  till  the  end  of  one’s  biological  life.  

However, in view of the power of the State under Sections  

432 and 433 of Cr.PC, in the present case, we are of the view  

that the sentences shall run consecutively, in case there is  

remission or commutation. We further make it clear that the  

remission or commutation, if considered in the case of the  

respondent, shall be granted only after the mandatory period  

of fourteen years in the case of offence under Section 302 of  

IPC.

34. Section 433A of the Cr.PC has imposed a restriction with  

regard  to  the  period  of  remission  or  commutation.  It  is  

specifically provided that when a sentence of imprisonment  

of life, where death is also one of the punishments provided  

by law, is remitted or commuted, such person shall not be  

released  unless  he  has  served  at  least  fourteen  years  of  

28

Page 29

imprisonment. In the case of the respondent herein, second  

life  imprisonment is  under Section 376 of IPC.  A minimum  

sentence under Section 376 of IPC is seven years.  Death is  

not an alternate punishment.   However,  the sentence may  

even be for life or for a term which may extend to ten years.  

Of the three options thus available, in view of the brutal rape  

of a minor girl child, the Sessions Court has chosen to impose  

the  extreme  punishment  of  life  imprisonment  to  the  

respondent.   

35. Punishment  has  a  penological  purpose.  Reformation,  

retribution,  prevention,  deterrence  are  some  of  the  major  

factors in that regard. Parliament is the collective conscience  

of the people. If  it  has mandated a minimum sentence for  

certain offences, the Government being its delegate, cannot  

interfere  with  the  same  in  exercise  of  their  power  for  

remission or commutation. Neither Section 432 nor Section  

433  of  Cr.PC  hence  contains  a  non-obstante  provision.  

Therefore, the minimum sentence provided for any offence  

cannot  be and shall  not  be remitted or  commuted by the  

Government in exercise of their power under Section 432 or  

433 of the Cr.PC.  Wherever the Indian Penal Code or such  

penal statutes have provided for a minimum sentence for any  

29

Page 30

offence,  to  that  extent,  the  power  of  remission  or  

commutation  has  to  be  read  as  restricted;  otherwise  the  

whole purpose of punishment will be defeated and it will be a  

mockery on sentencing.   

36. Having  regard  to  the  facts  and  circumstances  of  the  

present case,  we make it  clear  that  in  the event of  State  

invoking its powers under Section 432 or 433 of Cr.PC, the  

sentence under Section 376 of IPC shall not be remitted or  

commuted  before  seven  years  of  imprisonment.  In  other  

words,  in  that  eventuality,  it  shall  be  ensured  that  the  

respondent  will  first  serve  the  term  of  life  imprisonment  

under Section 302 of IPC.  In case there is any remission after  

fourteen years, then imprisonment for a minimum period of  

seven  years  under  Section  376  of  IPC  shall  follow  and  

thereafter  three  years  of  rigorous  imprisonment  under  

Section  201  of  IPC.  The  sentence  on  fine  and  default  as  

awarded by the Sessions Court are maintained as such.  

37. The appeal is disposed of as above.  

………………………………….…..…………J.               (CHANDRAMAULI KR. PRASAD)

30

Page 31

……….……..…...……..……………………J.  (KURIAN JOSEPH)

New Delhi; September 27, 2013.  

31

Page 32

32