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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.967-968 OF 2010

AMAR SINGH YADAV        … APPELLANTS

VERSUS

STATE OF U.P.      … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA,J

These appeals are directed against the common judgment dated  

16th February, 2010 passed by the High Court of Judicature at  

Allahabad in Criminal Appeal No.1942 of 2009 and Reference No.5  

of  2009.  By  the  impugned  common  judgment,  the  High  Court  

dismissed the appeal and confirmed the conviction and sentence  

for the offence punishable under Section 302, 307 and 436 IPC and  

thereby answered the Reference in confirming the death sentence.  

2. The case of the prosecution in short is that Urmila Devi was  

married to accused Amar Singh Yadav, who was posted as Constable  

in Police Chowki Gurdev Palace, Kanpur. Three daughters, Mamta,  

aged 24 years; Pooja aged 22 years; and Sudha 18 years and one  

son, Pankaj Yadav, aged 13 years were born from their wedlock.  

Amar  Singh  had  developed  illicit  relationship  with  two  other  

women, namely, Shashi of Kanpur and Rani of Bharthana, causing

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differences in the family. Urmila got effected deduction of half  

salary of the accused from the Department directly to pull on the  

expenses of the family. On account of such deductions of salary  

and illicit relationship, the accused became determined to cause  

the death of his wife, Urmila and all four children. Pursuant to  

that  determination,  accused  along  with  companion  driving  the  

Maruti Van No.UP 78 C 8262 came to his wife Urmila and he had  

taken  away  his  wife  and  four  children  in  Maruti  Van  on  the  

pretention  of  doing  shopping  for  the  marriage  of  one  of  the  

daughters. Further case of the prosecution is that when the sun  

had set, at the time of return the accused got Maruti Van stopped  

25-30 metres ahead of Udharanpur bridge on Jahanganj road and he  

along with the driver came out of the Van. They sprinkled the  

petrol all around the Van after locking the doors thereof. The  

accused along with companion then set the Maruti Van ablaze, with  

intention of burning all occupants of the Maruti Van to death.  

Thereafter, the accused and the driver tried to push the vehicle  

down  in  the  pit  so  that  the  occupants  might  not  escape  but  

meanwhile  Inspector,  Police  Station  Chhibramau  along  his  

companion Police Constables luckily arrived there and he without  

caring of his life broke open the doors of the burning vehicle  

and  took  out  accused’s  wife  and  all  four  children  from  the  

burning car. He immediately removed them to the Hospital for  

treatment.  The  complainant  having  received  the  information,  

rushed  to  Lohia  Hospital,  Farrukhabad  where  sister  of  the

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complainant  i.e.  Urmila  and  four  children  briefed  the  entire  

incident to him.  

3. Dhruv Narain, Constable Police No.286 (PW-14), registered  

the First Information Report at 1.30 a.m. being Crime No.310/2005  

under Section 436, 307 IPC. He received direction from Inspector  

Uma Shankar Yadav on R.T. Set to depute the additional force. On  

this,  Sub-Inspector  Pramod  Kumar  Katiyar  along  with  other  

Constables proceeded to the spot. The next day at about 7.20  

a.m., Sub-Inspector Pramod Kumar Katiyar returned to the Police  

Station; vide General Diary it is reported that he got admitted  

all the injured of the incident in Ram Manohar Lohia Hospital on  

the direction of Inspector, Uma Shankar Yadav.

4. After  registration  of  the  case,  its  investigation  was  

entrusted  to  Pramod  Kumar  Katiyar,  Sub-Inspector  (PW-13),  He  

proceeded to the spot and prepared site plan Ext.Ka-20. He then  

proceeded  to  Lohia  Hospital,  Farrukhabad  and  recorded  the  

statement of Urmila Devi, Ext.Ka-18; Mamta, Ext.Ka-15; Pooja,  

Ext.Ka-17; Sudha, Ext.Ka-16 and Pankaj Singh, Ext.Ka-19. Out of  

injured persons Urmila Devi, Mamta and Pooja died. The case of  

the accused was forwarded for trial under Section 307/302/436  

IPC.

5. In support of prosecution case, as many as 15 witnesses were  

examined by the prosecution, out of them  Sudha(PW-5)  and Pankaj  

Singh(PW-6) are injured witnesses. In the defence statement under  

Section  313  Cr.P.C.  accused  denied  the  allegation.  Total  17

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exhibits including dying declarations of Urmila Devi, Ext.Ka-18;  

Mamta, Ext.Ka-15; Pooja, Ext.Ka-17 were produced.

6. On appreciation of the oral and documentary evidence and  

hearing  the  parties,  the  Sessions  Judge,  Kanpur  held  the  

appellant-accused guilty for the offences under Section 302, 307  

and 436 IPC. The accused was convicted and sentenced to rigorous  

imprisonment for life on count of Section 307 IPC. He was further  

convicted and sentenced to rigorous imprisonment for seven years  

on count of Section 436 IPC. The accused was further convicted  

and sentenced to death and Rs.10,000/- fine on count of Section  

302 IPC and it was directed that he shall be hanged by the neck  

till death. All sentences shall run concurrently. The High Court  

by the impugned judgment dated 16th February, 2010 upheld the  

conviction and death sentence of the accused. The Reference was  

answered accordingly.

7. Learned  counsel  for  the  appellant  while  assailing  the  

impugned judgment submitted as follows:

(i) Deduction of 50% salary of the appellant for  paying to his wife by the Department cannot be a  motive to ruin the entire family.

(ii) Due to extra marital relationship with two  other women the appellant has been implicated.

(iii)If at all there was any motive to kill his  wife but there was no reason to ruin the life of  two  daughters  specially  the  elder  daughter  who  was  going  to  be  married  and  for  that  purpose  articles were purchased.

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(iv) The  person  who  informed  PW-4  that  the  vehicle was set on fire was not produced by the  prosecution.   

(v) Dying declaration cannot be relied because  the Doctor who examined, who gave the certificate  of fitness was not examined. Statements of PW-5  and PW-6 injured witnesses are contradictory to  the dying declaration.

(vi) That no one has deposed that they saw the  appellant spreading the petrol. Hence, there is  doubtful of identity of such person.  

(vii) The driver of the van was not arrested and  examined  nor  the  two  women  who  had  an  extra  marital affair with the appellant were examined.

(viii) The alleged incident does not fall within  the category of “rarest of the rare case”, and,  therefore, death penalty was uncalled for. This  is not a fit case to impose a death penalty.

8. Complainant, Satendra Singh (PW-1), brother of the deceased-

Urmila, has proved the contents of the FIR. He is not the eye-

witness of the incident in question. He deposed that on 29th  

April, 2005, he received the information from the Police Station  

at 9 p.m.  that his sister and four children were put to fire  

while confined in the Maruti Van. He arrived at Lohia Hospital at  

11 a.m. and found all the persons in burn condition. His sister  

recognised him and briefed the entire incident. He reported the  

same  to  the  Police.  The  accused-Amar  Singh  Yadav  and  driver  

straightaway ran awayfrom the scene. The Police had taken them  

out of the burn Maruti Van after breaking open the door.

9. This witness has told the motive of Amar Singh to cause the  

incident that his sister obtained the order of half of salary of

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Amar Singh payable to him by the order of the Superintendent of  

Police, Kanpur because Amar Singh was maintaining the illicit  

affairs with two women. The marriage of Mamta was settled on 11th  

May,  2005  and  on  pretend  of  purchase  for  marriage  of  Mamta  

accused Amar Singh had taken his wife and all the children to the  

market.

10. Uma Shankar Yadav, Inspector (PW-4), has testified in the  

Court that on 29th April, 2005 at about 8.30 p.m. when he was in  

search the wanted accused, he noticed a Maruti Van being blown  

near Udharanpur bridge. He immediately arrived there. Two persons  

standing there who immediately fled away from the scene. He and  

accompanying Home Guard, tried to extinguish the fire by throwing  

sand on fire and as soon as the fire receded, he broke open the  

window panes and had taken all the five occupants out of the  

Maruti Van. This witness further informed that all the injured  

were removed to Primary Health Centre, Chhibramau for treatment  

by him. Urmila then had briefed the matter to him about the  

accused maintaining illicit relationship with two women and she  

also told that in what manner the accused had pretended to take  

them away to the market and blew up the Maruti Van.

11. Sudha (PW-5), aged 18 years deposed on oath that on the day  

of the incident, i.e., 29th April, 2005, her father (accused) had  

taken her mother Urmila, elder sister Mamta, younger sister Pooja  

and brother Pankaj in Maruti Van to Chhibramau for purchasing  

material for the marriage of sister Mamta. No purchase was made

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from Chhibramau. They started returning to the house; at about  

6.30 p.m. The vehicle was being driven at very slow speed. Her  

father  stopped  the  vehicle  at  Chhibramau  bus  stand  where  he  

passed on time for one hour. In between 7.15 p.m. to 7.30 p.m.  

all of them driven towards the village, the Maruti Van was caused  

to be stopped where a board containing the information, ”stop  

there is a school here”. The driver stopped the vehicle saying  

that “the car has become hot”. Her father then told that, “Let  

him bring the wet cloth so that the engine may be cooled down”.  

The Van was again made to drive and ultimately her father and  

driver had come out of the Van after locking the windows. Her  

father had already sprinkled the petrol in the Van. He torched  

the  Van  at  once  and  the  Van  started  burning.  Meanwhile,  the  

Police had arrived there to their rescue and they were taken out  

of the vehicle by the Police after breaking open the window. She  

also  proved  the  fact  of  her  father  having  maintained  extra  

marital  relationship  with  two  other  women  due  to  which,  her  

mother  got  deduction  of  half  salary  from  the  salary  of  her  

father.  

12. Likewise, Pankaj (PW-6) corroborated the statement of Sudha.  

He stated that on 29th April, 2005 his father Amar Singh and the  

driver took all of them to Chhibramau to purchase materials.  At  

the time of return near the river Kali, the car was stopped then  

petrol was poured on them and set on fire. They tried to come out  

but their father and the driver just watched the fire. He further

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stated his father was working in Police and posted at Kalyanpur  

in Kanpur. He stated that his father and driver set all of them  

on fire.

13. Anil Kumar Katiyar (PW-12), Nayab Tehsildar, having received  

the instruction from the District Magistrate, recorded the dying  

declaration of injured Sudha, Pooja, Mamta, Urmila and Pankaj,  

out  of  whom,  Urmila  and  Pooja  died.  Mamta,  whose  dying  

declaration was recorded by Sub-Divisional Magistrate(PW-10) also  

died. The dying declaration of Urmila, which is Ext.Ka-18, is  

reproduced in English version as under:

“My  husband-Amar  Singh  is  in  Police  department and is posted at Police Station- Kalyanpur  in  Kanpur.  My  husband  has  soleminsed  two  marriages  after  me.  My  children and I had started getting half of  his  salaries  and  by  which  allowance  (we  were) maintaining. Due to all these reasons,  my  husband  was  angry  with  me  and  the  children.  But  yesterday  on  29.04.2005  by  saying  that  articles  were  to  be  purchased  for the marriage of daughter, all of us were  taken to Chhibramau. Deliberately (we were)  taken  to  Chhibramau  and  despite  of  our  repeated requests delay was caused and (we)  left late. While coming back the driver and  my husband-Amar Singh stopped the car near  the bridge of river Kali by saying that the  car  had  become  hot.  After  that  oil  was  sprinkled on all of us and set on fire. When  we  tried to  leave the  car, then  again we  were  pushed  into  the  car.  They  kept  on  watching at us in flames from outside. I do  not know the name of the driver, my husband  set  me  and  my  children  on  fire  and  the  driver fully co-operated in it.”

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14. The dying declaration of the deceased-Pooja made to PW-12,  

which is Ext.Ka-17, in English version is as under:

“Yesterday  on  29.04.05  my  father-Amar  singh and the driver took me, my mother and  both the sisters and brother with them to  Chhibramau  by  Maruti  by  saying  this  that  articles  were  to  be  purchased  for  the  marriage  of  ‘Didi’  (elder  sister)  and  clothes etc. were to be got purchased for  us. Some articles were purchased for ‘Didi’  at  Chhibramau  and  much  delay  was  caused  there. Left Chhibramanu in the evening and  stopped the car near the river Kali while  saying that the car had become hot and was  to be cooled down. By stopping the Maruti,  father-Amar  Singh  and  the  driver  put  oil  upon us and set us on fire and when (we)  tried to come out of the car, then again we  were pushed into the car. Do not know the  name of the driver who was with the father.  Mother  had  started  getting  half  amount  of  the salary of father and due to this reason  father was angry from all of us. Father and  the  driver  after  setting  us  on  fire  ran  away.  After  sometime  the  Police  got  us  admitted here.”

15. The verbatim reproduction of dying declaration of deceased-

Mamta made to City Magistrate (PW-10), Raj Pal singh, which is  

Ext.Ka-15, is as under:

“I, Mamta daughter of Amar Singh, resident of  Vida, village-Mohammadabad, Farrukkhabad, age  about 20 years, am in full senses and state  of mind, my father-Amar Singh along with the  driver was taking me, mother-Urmila, Shobha  and Pankaj to Chhibramau as articles(relating  to)  my  marriage  were  to  be  purchased  from  there. At about 7.30 p.m. on 29.04.05 while  coming  back  from  Chhibramau  I,  my  mother- Urmila, Shobha, Pankaj and Pooja were closed  in  Maruti  Van  near  the  river  Kali,  before  closing  the  car  father  said  that  car  had  become  hot  up  and  on  the  pretext  of  sprinkling water, sprinkled the petrol inside

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the car and set on fire. The door was closed  from  outside,  my  father  set  on  fire,  the  driver  was  helping  him.  My  father  was  desiring to kill me and as well as to all  those who were closed inside by setting on  fire.  My  father  had  soleminsed  second  marriage. My mother had got made his salary  half and since then he used to quarrel.”  

16. In the initial stage dying declarations of Sudha and Pankaj  

were also recorded by Nayab Tahseeldar (PW-12), but as both of  

them survived so their statements were only treated as exhibits.  

The statement of Sudha, which is Ext.Ka-16, is as under:

“Yesterday  on  29.04.05  in  the  evening  at  about 7.00 hours, my father and the driver  closed my mother, me and my two sisters and  my brother in the car and set on fire. Before  closing the car firstly the oil was poured on  us. Father took all of us on the pretext of  purchasing goods for the marriage of sister- Mamta and clothes etc. for all of us, from  Chhibramau. In chhibramau only some cream and  powder etc. were purchased for sister. After  that left Chhibramau very late. At the time  of  coming  back  stopped  the  car  near  the  bridge that the car had become hot and it was  to  be  cooled  down  and  suddenly  set  us  on  fire. When we started burning at that time  father and the driver kept on looking at us  from outside and when sister tried to go out  of the car, then father once again pushed me  inside  the  car.  My  father  is  in  Police  department.  He  is  posted  at  Kalyanpur  in  Kanpur. I was set on fire by my father and  the driver. All of us have been set on fire  by these people only.”

17. The  statement  of  Pankaj  Singh,  which  is  Ext.Ka-19,  is  

reproduced as under:

“Yesterday  on  29.04.05  my  father-Amar  Singh  and the driver took me and my three sisters  and  mother  in  Maruti  to  Chhibramau  for  purchasing.  While  coming  back,  the  car  was

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stopped near the river Kali, oil was poured on  us and set on fire. We tried to come out, then  again  (we  were)  pushed  inside  the  car.  My  father and driver kept on watching us while  standing outside and we kept on crying and  screaming, but that did not put any effect on  them. My father is in Police department and is  posted at Kalyanpur in Kanpur. Father and the  driver set all of us on fire.”

18. The facts brought out in the dying declarations of Urmila,  

Ext.Ka-18; Pooja, Ext.Ka-17 and Mamta,Ka-15 has corroborated the  

statements  of  injured  eye-witnesses,  Sudha  (PW-5)  and  Pankaj  

Singh (PW-6).There is no room but to suggest that the accused  

caused the death of the deceased.  The dying declarations clearly  

implicate the accused. There are no suspicious features which  

affect the credibility of the dying declarations particularly the  

deceased  being  related  to  the  accused.  There  is  no  apparent  

reason  as  to  why  the  deceased  Urmila(wife),  Mamta(daughter),  

Pooja (daughter) were connecting their husband/father with the  

murderer attack. Mere fact that Doctor in whose presence the  

dying declaration was recorded and/or who endorsed it, is not  

examined, does not affect the evidentiary value of the dying  

declaration. The evidence of Uma Shankar Yadav, Inspector (PW-4)  

is also corroborated by the evidence of eye-witnesses Sudha (PW-

5) and Pankaj (PW-6). There is no discrepancy in the statements  

of the eye-witnesses to disbelieve them. The Trial Court rightly  

convicted the appellant for the offence under Section 302, 307  

and 436 IPC as affirmed by the High Court.

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19. The next question is whether the death sentence awarded to  

the appellant is excessive, disproportionate on the facts and  

circumstances of the case, i.e. whether the present case can be  

termed to be a “rarest of the rare case".

20.  The  Guidelines  emerged  from  Bachan  Singh  vs.  State  of  

Punjab,  1980  (2)  SCC  684 were  followed  in  Machhi  Singh  and  

others vs. State of Punjab, 1983 (3) SCC 470. In the said case  

the Court observed:

“38. In  this  background  the  guidelines  

indicated in Bachan Singh case, 1980 (2) SCC  684 will have to be culled out and applied  to the facts of each individual case where  the question of imposing of death sentence  arises.  The  following  propositions  emerge  

from Bachan Singh case(supra):

“(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

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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.”

21. In Ronny alias Ronald James Alwaris and others vs. State of  

Maharashtra, 1998 (3) SCC 625, this Court noted the law laid-down  

in Allauddin Mian & Ors. Vs. State of Bihar, (1989) 3 SCC 5, that  

unless the nature of the crime and circumstances of the offender  

reveal that criminal is a menace to the society and the sentence  

of life imprisonment would be altogether inadequate, the Court  

should ordinarily pass a lesser punishment and not punishment of  

death  which  should  be  reserved  for  exceptional  cases  only.  

Considering the cumulative effect of all the factors, like the  

offences  committed  under  the  influence  of  extreme  mental  or  

emotional  disturbance,  the  young  age  of  the  accused,  the

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possibility  of  reform  and  rehabilitation,  etc.  the  Court  may  

convert the sentence into life imprisonment.

22. This  Court  noticed  the  aggravating  and  mitigating  

circumstances in Ramnaresh and others vs. State of Chattisgarh,  

2012 (4) SCC 257, and held as follows:

“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,(1980) 2 SCC 684, and  thereafter,  in  Machhi  Singh,(1983)  3  SCC  470.  The  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) CrPC.

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.

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(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,  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

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(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.

(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.

While  determining  the  questions  relating  to  sentencing  

policy, the Court laid down the Principles at paragraph 77 which  

reads as follows:

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“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.”

23. In  Shankar Kisanrao Khade vs. State of Maharashtra, 2013  

(5) SCC 546, dealing with a case of death sentence, this Court  

observed:

“52. Aggravating circumstances as pointed  out above, of course, are not exhaustive so  also  the  mitigating  circumstances.  In  my  considered view, the tests that we have to  apply,  while  awarding  death  sentence  are  “crime test”, “criminal test” and the “R-R  test” and not the “balancing test”. To award  death sentence, the “crime test” has to be  fully satisfied, that is, 100% and “criminal  test”  0%,  that  is,  no  mitigating  circumstance favouring the accused. If there  is any circumstance favouring the accused,  like lack of intention to commit the crime,

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possibility of reformation, young age of the  accused,  not  a  menace  to  the  society,  no  previous  track  record,  etc.  the  “criminal  test” may favour the accused to avoid the  capital punishment. Even if both the tests  are  satisfied,  that  is,  the  aggravating  circumstances to the fullest extent and no  mitigating  circumstances  favouring  the  accused, still we have to apply finally the  rarest of the rare case test (R-R test). R-R  test  depends  upon  the  perception  of  the  society  that  is  “society-centric”  and  not  “Judge-centric”,  that  is,  whether  the  society will approve the awarding of death  sentence to certain types of crimes or not.  While applying that test, the court has to  look into variety of factors like society’s  abhorrence,  extreme  indignation  and  antipathy  to  certain  types  of  crimes  like  sexual assault and murder of intellectually  challenged  minor  girls,  suffering  from  physical  disability,  old  and  infirm  women  with those disabilities, etc. Examples are  only  illustrative  and  not  exhaustive.  The  courts award death sentence since situation  demands  so,  due  to  constitutional  compulsion,  reflected  by  the  will  of  the  people and not the will of the Judges.”

24. On the question of sentence of death the principle in nut-

shell has been stated in Haresh Mohandas Rajput vs. State Of Ma-

harashtra, 2011 (12) SCC 56, which reads as under:

“The rarest of the rare case” comes when a  convict would be a menace and threat to the har- monious and peaceful coexistence of the society.  The crime may be heinous or brutal but may not be  in the category of “the rarest of the rare case”.  There must be no reason to believe that the ac- cused  cannot  be  reformed  or  rehabilitated  and  that he is likely to continue criminal acts of  violence as would constitute a continuing threat  to the society. The accused may be a menace to  the society and would continue to be so, threat- ening  its  peaceful  and  harmonious  coexistence.  The manner in which the crime is committed must

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be such that it may result in intense and extreme  indignation of the community and shock the col- lective conscience of the society. Where an ac- cused  does  not  act  on  any  spur-of-the-moment  provocation  and  indulges  himself  in  a  deliber- ately planned crime and meticulously executes it,  the death sentence may be the most appropriate  punishment for such a ghastly crime. The death  sentence may be warranted where the victims are  innocent  children  and  helpless  women.  Thus,  in  case the crime is committed in a most cruel and  inhuman  manner  which  is  an  extremely  brutal,  grotesque,  diabolical,  revolting  and  dastardly  manner, where his act affects the entire moral  fibre  of  the  society  e.g.  crime  committed  for  power or political ambition or indulging in or- ganised  criminal  activities,  death  sentence  should be awarded. (See C. Muniappan v. State of  T.N.(2010) 9 SCC 567,  Dara Singh v.  Republic of  

India.  (2011) 2 SCC 490,  Surendra Koli v.  State  of U.P, (2011) 4 SCC 80,  Mohd. Mannan, (2011) 5  SCC 317 and Sudam v. State of Maharashtra, (2011)  7 SCC 125.)

25. In  Sandeep vs. State of Uttar Pradesh, (2012) 6 SCC 107,  

this Court observed:

“72. It is, therefore, well settled that award- ing of life sentence is the rule, death is an ex- ception. The application of “the rarest of the  rare case” principle is dependent upon and dif- fers from case to case. However, the principles  laid down earlier and restated in the various de- cisions of this Court referred to above can be  broadly stated that a deliberately planned crime,  executed meticulously in a diabolic manner, ex- hibiting  inhuman  conduct  in  a  ghastly  manner,  touching the conscience of everyone and thereby  disturbing the moral fibre of society would call  for imposition of capital punishment in order to  ensure that it acts as a deterrent.”

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26. Though we are convinced that the prosecution has proved the  

guilt of the accused beyond all reasonable doubt, the accused  

committed  the  crime  in  a  most  cruel  and  inhuman  manner.  The  

helpless  wife  and  young  children,  who  fell  victims  to  the  

avaricious conduct and lust of the appellant still the case does  

not fall within the four corners of the principle of “the rarest  

of  the  rare  case”,  though  no  leniency  can  be  shown  to  the  

appellant.

27. There is no reason to believe that the accused cannot be  

reformed  or  rehabilitated  and  that  he  is  likely  to  continue  

criminal acts of violence as would constitute a continuing threat  

to the society.  

28. In Swamy Shraddananda vs. State of Karnataka, (2008) 13 SCC  

767, even while setting aside the sentence of death penalty and  

awarding life imprisonment in order to serve the ends of justice,  

the Court ordered that the appellant should not be released from  

the prison till the end of his life. Likewise, in  Ramraj v.  

State  of  Chhattisgarh,  (2010)  1  SCC  573, this  Court,  while  

setting aside the death sentence, directed that the appellant  

therein should serve a minimum period of 20 years including the  

remissions and would not be released on completion of 14 years of  

imprisonment.

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29. In  Sandeep’s  (supra)  taking  into  note  the  aforesaid  

decisions and facts and circumstances of the case, this Court  

while  holding  that  the  imposition  of  death  sentence  to  the  

accused  Sandeep  was  not  warranted  and  while  awarding  life  

imprisonment, the Court held that the accused Sandeep must serve  

a  minimum  of  30  years  in  jail  without  remissions  before  

consideration of his case for premature release.

30. In the present case taking into the facts and circumstances  

of the case in hand and reasons stated above, we hold that the  

imposition of death sentence to the accused Amar Singh Yadav was  

not  warranted.  Accordingly  we  commute  the  sentence  to  life  

imprisonment. Further, we hold that the accused Amar Singh Yadav  

must  serve  a  minimum  of  30  years  in  jail  without  remissions  

before consideration of his case for premature release. Criminal  

Appeals  and  Reference  thus  stand  disposed  of,  modifying  the  

sentence of the accused Amar Singh Yadav as one of the life and  

he should undergo sentence for a fixed period of 30 years without  

any remissions.

31. The criminal appeals stand disposed of with the aforesaid  

observations.

………………………………………………………………………J.               (SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………………………………J.

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(DIPAK MISRA)    

NEW DELHI,

JULY 01, 2014.