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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Review Petition (Crl.) Nos.637-638 of 2015

IN

  Criminal Appeal Nos.2486-2487 of 2014

Vasanta Sampat Dupare        ….. Petitioner

Versus

State of Maharashtra     …. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. These Review Petitions are directed against the Judgment and Order

dated 26.11.2014 passed by this Court in Criminal Appeal Nos.2486-87 of

2014 affirming conviction of the petitioner for the offences punishable under

Sections  302,  363,  367,  376(2)(f)  and  201  IPC  and   various  sentences

imposed upon the petitioner including death sentence under Section 302 IPC

and life imprisonment under Section 376(2)(f) IPC.  In view of the decision

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

and others.1, these review petitions were listed in Court for oral hearing.  

2. The  facts  leading  to  the  filing  of  criminal  appeals  in  this  Court

including the nature and quality of evidence on record have been dealt with

and considered in the Judgment of this Court dated 26.11.20142.  The charge

against the petitioner was that the victim, a minor girl of four years was raped

and battered to death by the petitioner.  The petitioner allegedly lured the

victim by giving her chocolates, kidnapped her and after satisfying his lust

caused crushing injuries to her with the help of stones weighing about 8.5 kg

and 7.5 kg.  The prosecution relied upon the evidence of PW2 Manisha, PW3

Minal,  PW5 Vandana and PW6 Baby Sharma who had seen the petitioner

taking away the victim on a bicycle on the fateful day.   In his disclosure

statement under Section 27 of the Evidence Act the petitioner had shown the

place where dead body of the victim was lying and the tap where he had

washed his blood stained clothes.  The medical evidence on record was dealt

with in paragraph 14 of the Judgment under review as under :-

14. According  to  the  doctor,  he  had  found  during internal examination that under scalp haematoma was present over left frontal and right frontal region of size 4cm × 4cm, dark red, the

1

(2014) 9 SCC 737 2

(2015) 1 SCC 253

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frontal bone was fractured and depressed, fracture line extended up to occipital bone through right temporal and parietal bone fracture on interior and middle cranial side. The subarachnoid haemorrhage  was  present  all  over  the  brain  surface  and meninges were congested.  In his  opinion,  the cause of  death was  head  injury,  associated  with  the  injury  on  the  genital region. He has testified that the two stones that were sent to him in sealed cover along with the requisition, Ext.62, for opinion, could have been used to cause the injuries on the victim. He has weighed the stones, which are, 8.5kg and 7.5kg, and has opined that there had been forceful sexual intercourse.”

3. After  taking  into  account  the  evidence  and  the  circumstances  on

record, this Court in the Judgment under review concluded as under:- “On a critical analysis of the evidence on record, we are

convinced  that  the  circumstances  that  have  been  clearly established  are  that  the  appellant  was  seen  in  the  courtyard where the minor girl and other children were playing; that the appellant was seen taking the deceased on his bicycle; that he had  gone  to  the  grocery  shop  owned by PW-6 to  buy Mint chocolate along with her; that the accused had told PW2 that the child was the daughter of his friend and he was going to ‘Tekdi-Wadi’ along with the girl; that the appellant had led to discovery of the dead body of the deceased, the place where he had washed his clothes and at his instance the stones smeared with  blood  were  recovered;  that  the  medical  report  clearly indicates about the injuries sustained by the deceased on her body; that the injuries sustained on the private parts have been stated  by the  doctor  to  have  been caused by forcible  sexual intercourse; that the stones that were seized were smeared with blood  and  the  medical  evidence   corroborates  the  fact  that injuries could have been caused by battering with stones; that the chemical analysis report shows that the blood group found on the clothes of the appellant; that the appellant has not offered any  explanation  with  regard  to  the  recovery  made  at  his instance; and that nothing has been stated in his examination under Section 313 CrPC that there was any justifiable reason to implicate him in the crime in question.  Thus, we find that each of the incriminating circumstances has been clearly established and  the  chain  of  circumstances  are  conclusive  in  nature  to

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exclude  any kind of  hypothesis,  but  the  one  proposed  to  be proved, and lead to a  definite conclusion that  the crime was committed by the accused.  Therefore, we have no hesitation in affirming the judgment of conviction rendered by the learned trial Judge and affirmed by the High Court.”  

4. On the issue of death sentence awarded to the petitioner, this Court

first considered the principles governing the matter in issue as under:-

“39. Now we shall proceed to deal with the facet of sentence. In Bachan Singh v. State of Punjab3, the Court held thus:

“(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.

(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.”

40. In Bachan Singh case3, the Court referred to the decision in  Furman v. Georgia4 and noted the suggestion given by the learned  counsel  about  the  aggravating  and  the  mitigating circumstances.  While  discussing  about  the  aggravating

3

(1980) 2 SCC 684 4

33 L.Ed. 2d 346 = 408 US 238 (1972)

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circumstances, the Court noted the aggravating circumstances suggested  by  the  counsel  which  read  as  follows:  (Bachan Singh case3, SCC p. 749, para 202) “Aggravating  circumstances.—A court  may, however,  in  the following cases impose the penalty of death in its discretion: (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 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.” After  reproducing the same,  the Court  opined: (SCC p.  749, para 203) “203.  Stated  broadly,  there  can  be  no  objection  to  the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.”

41. Thereafter, the Court referred to the suggestions pertaining to  mitigating  circumstances:  (Bachan  Singh  case3,  -  SCC p.750 para 206) “Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the following circumstances.— (1)  That  the  offence  was  committed  under  the  influence  of extreme mental or emotional disturbance.

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(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 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.” After reproducing the above, the Court observed: (SCC p. 750, para 207) “207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.

42. In  the said  case,  the  Court  has  also  held  thus:  (Bachan Singh case3, SCC p. 751, para 209) “209.  … It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us,  will  discharge  the  onerous  function  with  evermore scrupulous  care  and  humane  concern,  directed  along  the highroad of  legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule  and  death  sentence  an  exception.  A  real  and  abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

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43. In  Machhi  Singh  and  others v. State  of  Punjab5 a three-Judge Bench has explained the concept of rarest  of the rare cases by stating that: (SCC p. 487, para 32) “32.  The  reasons  why  the  community  as  a  whole  does  not endorse  the  humanistic  approach  reflected  in  ‘death sentence-in-no-case’ doctrine  are  not  far  to  seek.  In  the  first place,  the  very  humanistic  edifice  is  constructed  on  the foundation of ‘reverence for life’ principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of  this  doctrine.  Secondly,  it  has  to  be  realised  that  every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the  community  owes  a  debt  to  the  community  for  this protection.”

44. Thereafter, after adverting to the aspects of the feeling of the community and its desire for  self-preservation,  the Court opined that the community may well withdraw the protection by sanctioning the death penalty. The Court in that regard ruled thus: (Machhi Singh case5, SCC p. 487, para 32) “32. … But the community will not do so in every case. It may do so ‘in the rarest of rare cases’ when its collective conscience is  so  shocked  that  it  will  expect  the  holders  of  the  judicial power  centre  to  inflict  death  penalty  irrespective  of  their personal  opinion  as  regards  desirability  or  otherwise  of retaining death penalty.” It is apt to state here that in the said case, emphasis was laid on certain  aspects,  namely,  manner  of  commission  of  murder, motive  for  commission  of  murder,  anti-social  or  socially abhorrent  nature  of  the  crime,  magnitude  of  crime  and personality of the victim of murder.

5

(1983) 3 SCC 470

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45. After  so  enumerating,  the  propositions  that  emerged  out from  Bachan Singh3 were  culled out  which are  as  follows: (Machhi Singh case5, SCC p. 489, para 38) “38. … The following propositions emerge from Bachan Singh case3: ‘(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 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.”

46. Thereafter, the three-Judge Bench opined that to apply the said  guidelines,  the  following  questions  are  required  to  be answered: (Machhi Singh case5, SCC p. 489, para 39) “(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?” In the said case, the Court upheld the extreme penalty of death in respect of three accused persons.”

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5. In the light of the principles as stated above, the facts of the present

matter  were  considered  by  this  Court  in  the  Judgment  under  review  as

under:- “57. Keeping in view the aforesaid authorities, we shall proceed to adumbrate what is the duty of the Court when the collective conscience is shocked because of the crime committed. When the crime is diabolical in nature and invites abhorrence of the collective,  it  shocks  the  judicial  conscience  and  impels  it  to react  keeping  in  view  the  collective  conscience,  cry  of  the community for justice and the intense indignation at the manner in  which  the  brutal  crime  is  committed.  We are  absolutely conscious that Judges while imposing sentence, should never be swayed  away  by  any  kind  of  individual  philosophy  and predilections. It should never have the flavour of Judge-centric attitude or  perception.  It  has  to  satisfy the  test  laid down in various precedents relating to the rarest of the rare case. We are also required to  pose two questions that  have been stated in Machhi Singh case5.

58. Presently, we shall  proceed to dwell  upon the manner in which the crime was committed.  Materials  on record clearly reveal  that  the  appellant  was  well  acquainted  with  the inhabitants of the locality and as is demonstrable he had access to the house of the father of the deceased and the children used to call him “uncle”. He had lured the deceased to go with him to have chocolates. It is an act of taking advantage of absolute innocence. He had taken the deceased from place to place by his bicycle and eventually raped her in a brutal manner, as if he had an insatiable and ravenous appetite. The injuries caused on the  minor  girl  are  likely  to  send  a  chill  in  the  spine  of  the society and shiver in the marrows of human conscience. He had battered her to death by assaulting her with two heavy stones. The  injured  minor  girl  could  not  have  shown  any  kind  of resistance. It is not a case where the accused had a momentary lapse.  It  is  also  not  a  case  where  the  minor  child  had  died because  of  profuse  bleeding  due  to  rape  but  because  of  the deliberate cruel assault  by the appellant.  After the savage act was over, the coolness of the appellant is evident, for he washed

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the clothes on the tap and took proper care to hide things. As is manifest, he even did not think for a moment the trauma and torture  that  was  caused  to  the  deceased.  The  gullibility  and vulnerability of the four year girl, who could not have nurtured any idea about the maladroitly designed biological desires of this  nature,  went  with  the  uncle  who  extinguished  her life-spark. The barbaric act of the appellant does not remotely show any concern for the precious life of a young minor child who had really not seen life. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on the society. It is calamitous.

60. In  the  case  at  hand,  as  we  find,  not  only  was  the  rape committed in a brutal manner but murder was also committed in a barbaric manner. The rape of a minor girl child is nothing but a monstrous burial of her dignity in the darkness. It  is a crime  against  the  holy  body  of  a  girl  child  and  the  soul  of society and such a crime is aggravated by the manner in which it has been committed. The nature of the crime and the manner in  which  it  has  been  committed  speaks  about  its uncommonness. The crime speaks of depravity, degradation and uncommonality. It  is  diabolical  and barbaric.  The crime was committed in an inhuman manner. Indubitably, these go a long way to establish the aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances are to be taken into consideration. The learned counsel for the appellant  pointing  out  the  mitigating  circumstances  would submit  that  the  appellant  is  in  his  mid-fifties  and  there  is possibility of  his  reformation.  Be it  noted,  the appellant  was aged about forty-seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when this Court has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the obtaining factual matrix when unfolded stage by stage would show the premeditation,  the  proclivity  and  the  rapacious  desire.  The learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history-sheeter and had a number of cases pending against him. That alone may not be

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sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated, when his age is taken into consideration. It was not committed under any mental  stress  or  emotional  disturbance  and  it  is  difficult  to comprehend that he would not commit such acts and would be reformed  or  rehabilitated.  As  the  circumstances  would graphically depict, he would remain a menace to society, for a defenceless  child  has  become  his  prey.  In  our  considered opinion, there are no mitigating circumstances.”

6. The  above  quoted  observations  of  this  Court  in  Judgment  under

review show that the aggravating facts were considered in paragraphs 58 and

60 and the entirety of the matter including the mitigating circumstances were

dealt with more particularly in paragraph 61.  The aggravating facts not only

showed the extreme depravity but in the opinion of this Court they brought

to  the  fore  the  diabolical  and  barbaric  manner  in  which  the  crime  was

committed.  The Court did not find any mitigating circumstances in favour

of  the  accused  to  tilt  the  balance  in  his  favour  for  awarding  lesser

punishment.  

7. At this juncture, it  may be noted that  the decision of this Court in

Machhi  Singh (supra)  shows  that  after  having  laid  down  oft-quoted

principles, this Court considered individual cases of accused Machhi Singh,

Jagir Singh and Kashmir Singh.  As regards Machhi Singh, it was observed

in paragraph 42:-

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“…….The offence committed was of an exceptionally depraved and  heinous  character.  The  manner  of  its  execution  and  its design would put it at the level of extreme atrocity and cruelty.

……..The  crime  committed  carries  features  which  could  be utterly horrendous especially when we know the weapons and the manner of their use. The victims could offer no resistance to the accused appellants. The law clamours for a sterner sentence; the crime being heinous, atrocious and cruel.

……..The crime was gruesome and cold-blooded revealing the propensity of the accused appellants to commit murder.”

Similarly as regards Jagir Singh it was observed,   

“…….The  crime  committed  carries  features  which  could  be utterly horrendous especially when we know the weapons and their manner of use. The victims could offer no resistance to the accused appellants. The law clamours for a sterner sentence; the crime being heinous, atrocious and cruel.

………The helpless state of the victims and the circumstances of the case lead us to confirm the death sentence.”

8. Further, paragraphs 44 and 45 show that one of the accused namely

Kashmir Singh had caused the death of a defenceless child of six years and

the matter  as  regards said accused Kashmir Singh in particular  and with

regard to all the accused in general, was dealt with as under:-

“44. Insofar  as  appellant  Kashmir  Singh s/o Arjan Singh is concerned  death  sentence  has  been  imposed  on  him  by  the Sessions  Court  and  confirmed  by  the  High  Court  for  the following reasons:

Similarly, Kashmir  Singh appellant  caused the  death of  a child  Balbir  Singh  aged  six  years  while  asleep,  a  poor

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defenceless  life  put  off  by a  depraved mind reflecting  grave propensity to commit murder.

45. We are of the opinion that insofar as these three appellants are concerned the rarest of rare cases rule prescribed in Bachan Singh case is clearly attracted and sentence of death is called for. We are  unable  to  persuade  ourselves  that  a  sentence  of imprisonment for life will be adequate in the circumstances of the  crime.  We therefore  fully  uphold  the  view  concurrently taken by the Sessions Court and the High Court that extreme penalty  of  death  requires  to  be  imposed  on  appellants  (1) Machhi  Singh  (2)  Kashmir  Singh  s/o  Arjan  Singh  (3)  Jagir Singh. We accordingly confirm the death sentence imposed on them and dismiss their appeals.”

9. The  assessment  and  the  consideration  bestowed  by  this  Court  in

Machhi Singh (supra) shows that the aggravating circumstances namely the

manner  in  which  the  crime  was  committed,  the  brutality  and  barbaric

manner of execution, the status and helplessness of victims and the fact that

the crime was gruesome and cold blooded were given due weightage.  These

facts themselves were found to be tilting the balance against the concerned

accused.   In  the  present  case  a  minor  girl  of  four  years  was  raped  and

battered to death by the petitioner.  The brutality and diabolical nature of the

crime and the fact that the victim had reposed trust and confidence in the

petitioner  was  taken  into  account  and  this  Court  found  the  aggravating

circumstances completely outweighing the other factors.  The evidence and

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circumstances were dealt with in the Judgment under review in great detail

and this Court had no hesitation in affirming the death sentence.   

10. In the present Review Petition, Mr. Anup Bhambhani, learned Senior

Advocate appearing for the petitioner, at the outset, raised a grievance that in

the  light  of  principles  laid  down  in  Bachan  Singh and  Machhi  Singh

(supra) mitigating factors ought to have been taken into account and that

proper and effective hearing in that behalf was not extended to the petitioner.

This Court therefore by Order dated 31.08.2016 permitted the petitioner to

file  material  to  indicate  mitigating  factors  for  conversion  of  the  death

sentence to life imprisonment.  This was in keeping with the principles laid

down by this Court in Dagdu and Others v. State of Maharashtra6 wherein

three Judge Bench of this Court had observed:-

“79 …..The  Court,  on  convicting  an  accused,  must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of  it  in  the  higher  court,  it  would  be  open to  that  Court  to remedy the breach by giving a hearing to the accused on the question of sentence.”

80.  …….For  a  proper  and  effective  implementation  of  the provision  contained  in  Section  235(2),  it  is  not  always necessary to remand the matter to the court which has recorded the conviction……Remand is an exception,  not the rule, and

6

(1977) 3 SCC 68

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ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.”

11. The petitioner thereafter filed Crl.M.P. Nos.16369-70 of 2016 placing

on record certain facts and material.  It was submitted :-

“Education and Activities undertaken by the Petitioner    in Jail

i) The Petitioner submits that he had to discontinue school after class 6th during childhood.  Thereafter he  worked  in  various  jobs  such  as  electrician, construction  labourer,  nursery  worker,  security guard.  Death row prisoners in Maharashtra are not permitted  to  work,  but  the  Petitioner  as  an undertial has worked in the jail  nursery.  During incarceration,  the  Petitioner  has  undertaken studies,  art  competitions  as  well  as  several programmes  aimed  at  reforming  himself.   The Petitioner’s counsel is informed that his drawings are exhibited in jail as well.

ii) The Petitioner has in 2015 successfully completed the Bachelors Preparatory Programme offered by the Indira Gandhi National Open University.  This course  enables  people  who  have  discontinued schooling  before  matriculation  to  prepare  for bachelors-level studies.

iii) The Petitioner in 2015 also successfully completed the  Gandhi  Vichar  Pariksha  (Examinaiton  on Gandhian Thoughts).   This  examination seeks to rehabilitate prisoners who have committed violent crimes, by learning from the life and teaching of M.K. Gandhi.  The course includes classes on the teachings  of  M.K.  Gandhi,  reading  his autobiography, and a descriptive exam.

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iv) The Petitioner is  quite proficient  in drawing and has  also  participated  in  a  drawing  competition organized  by  the  Nagpur  Municipal  Corporation and Kalajarn Foundation on 10.01.2016.   

v) It  is  therefore submitted that the Petitioner is on the  path  to  reformation  and  rehabilitation  and therefore  the  death  sentence  imposed  on  him deserves  to  be  commuted  to  imprisonment  for life.”

The  application  then  set  out  that  the  Disciplinary  Record  of  the

Petitioner in Jail was without any blemish and that there were no criminal

antecedents.

12. The matter was thereafter posted for hearing.  Mr. Anup Bhambhani,

learned Senior Advocate principally submitted:-  

a. The judgment of conviction and order of sentence were passed

by the trial court on the same day namely on 23.02.2012 which was

completely opposed to the law laid down by this Court  in Allauddin

Mian and Others v. State of Bihar7 and against the spirit of Section

235(2) of the CrPC. b. As  laid  down  in  para  206  of  Bachan  Singh (supra)  “the

probability that the accused can be reformed” was an important facet

and the burden was on the State to prove by evidence that the accused

could  not  possibly  be  reformed.   However,  such  burden  was  not 7

(1989) 3 SCC 5

Page 17

17

discharged by the State and no evidence was led.  In the absence of

such evidence by the State, no death sentence could be awarded or

confirmed.

13. Para 10 of the decision of this Court in  Allauddin Mian v. State of

Bihar (supra)  on which reliance was placed,  is to the following effect:-

10. Even a casual glance at the provisions of the Penal Code will  show  that  the  punishments  have  been  carefully  graded corresponding with the gravity of offences; in grave wrongs the punishments prescribed are strict  whereas for  minor offences leniency is shown. Here again there is considerable room for manoeuvre because the choice of the punishment is left to the discretion of the judge with only the outer limits stated. There are  only  a  few  cases  where  a  minimum  punishment  is prescribed. The question then is what procedure does the judge follow for determining the punishment to be imposed in each case to fit the crime? The choice has to be made after following the procedure set out in sub-section (2) of Section 235 of the Code. That sub-section reads as under:

If  the  accused  is  convicted,  the  judge  shall,  unless  he proceeds  in  accordance  with  the  provisions  of  Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to  tender  on  the  question  of  sentence.  This  is  all  the  more necessary since the courts are generally required to make the choice  from  a  wide  range  of  discretion  in  the  matter  of sentencing.  To  assist  the  court  in  determining  the  correct sentence to be imposed the legislature introduced sub-section

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(2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at  the same time helps the court  to choose the sentence to be awarded. Since the provision is intended to give the  accused  an  opportunity  to  place  before  the  court  all  the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly  followed.  It  is  clearly  mandatory  and  should  not  be treated as a mere formality. Mr Garg was, therefore, justified in making a grievance that the trial court actually treated it as a mere formality as is evident from the fact that it recorded the finding  of  guilt  on  31-3-1987,  on  the  same  day  before  the accused could  absorb and overcome the  shock of  conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced. In a case of life or death as stated earlier, the presiding officer must show a high decree of concern for the statutory right of the accused and should  not  treat  it  as  a  mere  formality  to  be  crossed  before making the choice of sentence. If the choice is made, as in this case,  without  giving  the  accused  an  effective  and  real opportunity  to  place  his  antecedents,  social  and  economic background,  mitigating  and  extenuating  circumstances,  etc., before the court, the court’s decision on the sentence would be vulnerable.  We  need  hardly  mention  that  in  many  cases  a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative  decision;  a  fortiori,  therefore,  the  principle  of fair  play  must  apply  with  greater  vigour  in  the  case  of  the former than the latter.  An administrative decision having civil consequences,  if  taken without  giving a  hearing is  generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question  seriously  and  must  endeavour  to  see  that  all  the relevant  facts  and  circumstances  bearing  on  the  question  of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed

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before it, it must pronounce the sentence. We think as a general rule  the  trial  courts  should  after  recording  the  conviction adjourn  the  matter  to  a  future  date  and  call  upon  both  the prosecution as well as the defence to place the relevant material bearing  on  the  question  of  sentence  before  it  and  thereafter pronounce the sentence to be imposed on the offender. In the present  case,  as  pointed  out  earlier,  we  are  afraid  that  the learned trial Judge did not attach sufficient importance to the mandatory requirement of sub-section (2) of Section 235 of the Code.”

14. Sub-section (2) of Section 235 of Cr.P.C. obliges the Court to hear the

accused on the question of sentence and normally it is expected that after

recording the conviction, the matter be adjourned to a future date calling

upon both the prosecution as well as the defence to place relevant material

having bearing on the question of sentence. The effect of recording of the

conviction  and  imposition  of  death  sentence  on  the  same  day, was  also

considered by a  bench of  three  learned Judges  of  this  Court  in  Malkiat

Singh and others v. State of Punjab8.  In that case, this Court did not deem

it expedient to remand the matter after six years and converted the sentence

of death to imprisonment for life. It was observed:-

“18. On  finding  that  the  accused  committed  the  charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well

8

(1991) 4 SCC 341

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as  the  accused  to  place  before  the  court  facts  and  material relating to various factors on the question of sentence, and if interested  by either  side,  to  have  evidence  adduced  to  show mitigating  circumstances  to  impose  a  lesser  sentence  or aggravating  grounds  to  impose  death  penalty.  Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution  may  plead  or  the  accused  may  show  that  the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be. No doubt the accused declined to adduce oral evidence. But it does not prevent to show the grounds to impose lesser sentence on A-1. This Court in the aforestated Allauddin and  Anguswamy9 cases held that the sentence awarded on the same day of  finding guilt  is  not  in accordance with the law. That would normally have the effect of remanding the case to the Special Court for reconsideration. But in the view of the fact  that A-1 was in incarceration for long term of six years from the date of conviction, in our considered view it needs no remand for further evidence. It is sufficient that the sentence of death awarded to A-1 is converted into rigorous imprisonment for life. The sentences of death is accordingly modified and A-1 is  sentenced  to  undergo  rigorous  imprisonment  for  life  for causing the deaths of all four deceased.”

15.    In a recent Judgment rendered by three learned Judges of this Court in

B.A.  Umesh  v. High Court  of  Karnataka10,  the facts  were more or  less

similar,  in  that  no separate  date  for  hearing on sentence was given after

recording conviction.  Para 8 of that decision of this Court is quoted for

ready reference:-

9

(1989) 3 SCC 33 10

(2016) 9 SCALE 600

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“8.   In  addition  to  above,  it  is  contended  on  behalf  of  the petitioner  (Review Applicant)  that  since  no separate  date  for hearing on sentence was given in the present case by the trial court,  as  such  for  violation  of  Section  235(2)  Cr.P.C.,  the sentence of death cannot be affirmed. We have considered the argument of Ms. Suri. It is true that the convict has a right to be heard before sentence. There is no mandate in Section 235(2) Cr.P.C. to fix separate date for hearing on sentence. It depends on the facts and circumstances as to whether a separate date is required for hearing on sentence or parties feel convenient to argue on sentence on the same day. Had any party pressed for separate  date  for  hearing  on  the  sentence,  or  both  of  them wanted to be heard on some other date,  situation could have been different.  In the present case, the parties were heard on sentence by both the courts below, and finally by this Court, as is apparent from the Judgment under review. As such, merely for the reason that no separate date is given for hearing on the sentence, the Review Petition cannot be allowed.”  

This Court then relied on the principle laid down in Dagdu v. State of

Maharashtra (supra) which was followed subsequently by another Bench of

three  learned  Judges  in  Tarlok  Singh  v.  State  of  Punjab11.   In  the

circumstances, merely because no separate date was given for hearing on

sentence, we cannot find the entire exercise to be flawed or vitiated.  Since

we had allowed the petitioner to place the relevant material on record in the

light of the principles laid down in Dagdu v. State of Maharashtra (supra),

we will proceed to consider the material so placed on record and weigh these

11

(1977) 3 SCC 218

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factors  and  the  aggravating  circumstances  as  found  by  the  Court  in  the

Judgment under review.

16. However, before such consideration we must  deal  with the second

submission advanced by Mr. Bhambhani, learned Senior Advocate.  In his

submission,  in  terms  of  paragraph  206  of  the  decision  of  this  Court  in

Bachan  Singh (supra)  the  burden  was  upon  the  State  in  respect  of

conditions  (3)  and  (4),  which  burden  was  not  discharged  at  all.

Consequently, according to him, the sentence of death would be required to

be converted to life imprisonment.  Paragraph 206 of the decision of this

Court  in  Bachan Singh (supra)  detailed certain mitigating circumstances

and while dealing with conditions (3) and (4), this Court observed that it

would be for the State to prove by evidence that the accused did not satisfy

conditions (3) and (4).   However, subsequent paragraphs show that those

circumstances would certainly be relevant and great weight be attached to

them but it was the cumulative effect of the mitigating circumstances on one

hand and the aggravating facts on the other, which would be weighed to

come to the final conclusion whether the case satisfied the requirement of

being “rarest of rare”.  It is not as if mere failure on part of the State to lead

such evidence would clinch the issue in favour of the accused.   

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17. Mr. Bhambhani, learned Senior Advocate then relied on the decision

of this Court in  Rajesh Kumar v.  State through Government of NCT of

Delhi12, particularly paragraphs 73 and 74 thereof which paragraphs are as

under:

“73. In the instant  case the State has failed to show that the appellant  is  a  continuing  threat  to  the  society  or  that  he  is beyond reform and rehabilitation. On the other hand, in para 77 of the impugned judgment the High Court observed as follows:

“We have  no  evidence  that  the  appellant  is  incapable  of being rehabilitated in society. We also have no evidence that he is capable of being rehabilitated in society. This circumstance remains a neutral circumstance.”

74. It is clear from the aforesaid finding of the High Court that there is no evidence to show that the accused is incapable of being  reformed  or  rehabilitated  in  the  society  and  the  High Court has considered the same as a neutral circumstance. In our view the High Court was clearly in error. The very fact that the accused can be rehabilitated in the society and is capable  of being reformed, since the State has not given any evidence to the contrary, is certainly a mitigating circumstance and which the High Court has failed to take into consideration. The High Court  has  also  failed  to  take  into  consideration  that  the appellant is not a continuing threat to the society in the absence of any evidence to the contrary. Therefore, in para 78 of the impugned judgment, the High Court, with respect, has taken a very narrow and a myopic view of the mitigating circumstances about the appellant. The High Court has only considered that the appellant is a first time offender and he has a family to look after. We are, therefore, constrained to observe that the High Court’s  view  of  mitigating  circumstances  has  been  very truncated and narrow insofar as the appellant is concerned.”

12

(2011) 13 SCC 706

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The  discussion  shows  that  this  Court  found  that  mitigating

circumstances in favour of the appellant were not properly considered and in

the  ultimate  analysis  the  case  did  not  satisfy  being  “rarest  of  rare”  and

therefore, this Court substituted the sentence of imprisonment for life to that

of death sentence.  The discussion in paragraphs 73 and 74 does not indicate

that  in  the  absence  of  any evidence  led by the State  in  connection  with

conditions (3) and (4) as stated in paragraph 206 of Bachan Singh (supra),

the entire exercise gets vitiated and the matter must always be answered in

favour of the accused.  It is undoubtedly a relevant consideration which will

be weighed by the Court together with other circumstances on record.  We,

therefore, do not find any merit in the second submission.  

18. In  Ramnaresh  and  Others  v. State  of  Chhattisgarh13 this  Court

considered the import of  governing principles regarding death sentence and

summed  up  that  it  is  the  cumulative  effect  of  both  the  aggravating  and

mitigating circumstances that need to be taken into account. Paragraphs 76

to 81 of the decision are as under:-

“76. The law enunciated by this Court in its recent Judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh and thereafter, in Machhi Singh. The

13

(2012) 4 SCC 257

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aforesaid Judgments, primarily dissect these principles into two different  compartments—one  being  the  “aggravating circumstances”  while  the  other  being  the  “mitigating circumstances”. The court would consider the cumulative effect of  both  these  aspects  and  normally,  it  may  not  be  very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court.  It  will  be appropriate for  the court  to come to a  final conclusion  upon  balancing  the  exercise  that  would  help  to administer  the  criminal  justice  system better  and  provide  an effective  and  meaningful  reasoning  by  the  court  as contemplated under Section 354(3) Cr.P.C.

Aggravating circumstances

(1) The offences relating to the commission of heinous crimes like  murder,  rape,  armed  dacoity,  kidnapping,  etc.  by  the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public  place  by a  weapon  or  device  which clearly  could  be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings. (6)  The  offence  was  committed  outrageously  for  want  only while involving inhumane treatment and torture to the victim. (7)  The offence  was committed by a  person while  in  lawful custody. (8)  The  murder  or  the  offence  was  committed  to  prevent  a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance,

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murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. (9) When the crime is enormous in proportion like making an attempt  of  murder  of  the  entire  family  or  members  of  a particular community. (10) When the victim is innocent,  helpless or a person relies upon the trust  of  relationship and social  norms,  like a child, helpless  woman,  a  daughter  or  a  niece  staying  with  a father/uncle and is inflicted with the crime by such a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances

(1)  The  manner  and  circumstances  in  and  under  which  the offence  was  committed,  for  example,  extreme  mental  or emotional  disturbance  or  extreme  provocation  in contradistinction to all these situations in normal course. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused of not indulging in commission of  the  crime again  and  the  probability  of  the  accused  being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving  rise  to  mental  imbalance  in  that  given  situation  like persistent  harassment  or,  in  fact,  leading  to  such  a  peak  of human behaviour  that,  in  the  facts  and circumstances  of  the case,  the  accused  believed  that  he  was  morally  justified  in committing the offence.

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(6) Where the court upon proper appreciation of evidence is of the view that  the crime was not  committed in a  preordained manner and that the death resulted in the course of commission of another crime and that  there  was a  possibility of  it  being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused. 77. While  determining  the  questions  relatable  to  sentencing policy,  the  court  has  to  follow  certain  principles  and  those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.

Principles

(1) The court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence. (2)  In  the  opinion  of  the  court,  imposition  of  any  other punishment  i.e.  life  imprisonment  would  be  completely inadequate and would not meet the ends of justice. (3)  Life  imprisonment  is  the  rule  and  death  sentence  is  an exception. (4)  The  option  to  impose  sentence  of  imprisonment  for  life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of  brutality  and  inhumanity,  etc.)  in  which  the  crime  was committed  and  the  circumstances  leading  to  commission  of such heinous crime.

78. Stated  broadly, these  are  the  accepted  indicators  for  the exercise of judicial discretion but it is always preferred not to fetter  the  judicial  discretion  by  attempting  to  make  the excessive enumeration, in one way or another. In other words, these  are  the  considerations  which  may  collectively  or otherwise weigh in the mind of the court, while exercising its jurisdiction. It is difficult to state it as an absolute rule. Every case  has  to  be  decided  on  its  own  merits.  The  judicial

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pronouncements, can only state the precepts that may govern the exercise  of  judicial  discretion to a limited extent.  Justice may be done on the facts of each case. These are the factors which the court may consider in its endeavour to do complete justice between the parties.

79. The court then would draw a balance sheet of aggravating and mitigating circumstances.  Both aspects  have to  be given their  respective weightage.  The court  has to  strike a  balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of “just deserts” that serves as the foundation of every criminal sentence that is justifiable. In other words, the “doctrine of proportionality” has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will  not only have to examine what is just but also as to what the accused deserves keeping in view the impact on the society at large.

80. Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the courts should consider retributive and deterrent aspect of  punishment  while  imposing  the  extreme  punishment  of death.

81. Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status  of  the  victim,  undoubtedly  bring  the  case  within  the ambit  of  “rarest  of  rare”  cases  and  the  court  finds  that  the imposition  of  life  imprisonment  would  be  inflicting  of inadequate  punishment,  the  court  may  award  death  penalty. Wherever, the case falls in any of the exceptions to the “rarest of  rare”  cases,  the  court  may  exercise  its  judicial  discretion while imposing life imprisonment in place of death sentence.”

19. It is thus well settled, “the Court would consider the cumulative effect

of  both  the  aspects  (namely  aggravating  factors  as  well  as  mitigating

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circumstances) and it may not be very appropriate for the Court to decide the

most  significant  aspect  of  sentencing policy with reference to one of  the

classes completely ignoring other classes under other  heads and it  is  the

primary  duty  of  the  Court  to  balance  the  two.”   Further,  “it  is  always

preferred not to fetter the judicial discretion by attempting to make excessive

enumeration,  in  one  way  or  another;  and  that  both  aspects  namely

aggravating and mitigating circumstances have to be given their respective

weightage and that the Court has to strike the balance between the two and

see  towards  which  side  the  scale/balance  of  justice  tilts.”   With  these

principles in mind we now consider the present review petition.   

20. The material placed on record shows that after the Judgment under

review,  the  petitioner  has  completed  Bachelors  Preparatory  Programme

offered  by  the  Indira  Gandhi  National  Open  University  enabling  him to

prepare for Bachelor level study and that he has also completed the Gandhi

Vichar  Pariksha  and  had  participated  in  drawing  competition  organized

sometime in January 2016.  It is asserted that the jail record of the petitioner

is without any blemish.   The matter is not contested as regards Conditions 1,

2, 5, 6 and 7 as stated in paragraph 206 of the decision in  Bachan Singh

(supra) but what is now being projected is that there is a possibility of the

accused being reformed and rehabilitated.  Though these attempts on part of

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the petitioner are after the Judgment under review, we have considered the

material in that behalf to see if those circumstances warrant a different view.

We have given anxious consideration to the material on record but find that

the  aggravating  circumstances  namely  the  extreme  depravity  and  the

barbaric manner in which the crime was committed and the fact  that  the

victim was  a  helpless  girl  of  four  years  clearly  outweigh  the  mitigating

circumstances now brought on record.  Having taken an overall view of the

matter, in our considered view, no case is made out to take a different view

in the matter. We, therefore, affirm the view taken in the Judgment under

review and dismiss the present Review Petitions.   

..………………………J. (Dipak Misra)

...………..…..………...J.  (Rohinton Fali Nariman)

…………..……..……..J.  (Uday Umesh Lalit)

New Delhi, May 03, 2017