1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

REVIEW PETITION (CRIMINAL) NO. 388 OF 2015 IN

SPECIAL LEAVE PETITION (CRIMINAL) NO. 458 OF 2015

BABASAHEB MARUTI KAMBLE .....PETITIONER(S)

VERSUS

STATE OF MAHARASHTRA .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

This  Review  Petition  is  filed  by  the  petitioner  who  has  been

convicted  for  offences  under  Sections  302,  376(2)(f)  and  342 of  the

Indian Penal Code (for short, 'IPC').  He was awarded death penalty for

the offence punishable under Section 302, IPC by the trial court vide its

judgment dated September 27, 2013 in Sessions Case No. 87 of 2012.

For offence under Section 376(2)(f) of IPC, the petitioner was sentenced

to life imprisonment and for the offence under Section 342 of IPC, the

trial court awarded simple imprisonment for two months.

2. Since sentence of death was imposed on the petitioner, the Sessions

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Judge made a Reference to the High Court for confirmation of death

sentence.  The petitioner also challenged his conviction and sentences

imposed by filing Criminal Appeal No. 80 of  2014 before the High Court.

The said appeal as well as Reference were heard together by the High

Court.   The  High  Court  upheld  the  conviction  under  the  aforesaid

provisions and also confirmed death sentence of the petitioner vide its

judgment  dated July 09/10,  2014.   Against  that  judgment,  the review

petitioner preferred Special Leave Petition (Criminal) No. 458 of 2015.

The special leave petition came up for preliminary hearing on January

06, 2015 which was dismissed by passing the following order:

"Delay condoned. Dismissed."

3. Present review petition is filed seeking review of the aforesaid order of

dismissal in limine.

4. Mr.  Shekhar  Naphade,  learned  senior  counsel  appearing  for  the

petitioner submits that in a case where conviction is followed by death

sentence,  and  the  special  leave  petition  is  filed  thereagainst,  such

petition  should  not  be dismissed  in  limine  and in  case the Supreme

Court still finds it fit to do so, some reasons need to be recorded.

5. Learned senior counsel has referred to the provisions of Article 137 of

the Constitution which provide for review of judgments or orders by the

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Supreme Court and reads as under:

"137. Review of judgments or  orders by the Supreme Court.— Subject to the provisions of any law made by Parliament or any rules  made  under  Article  145,  the  Supreme  Court  shall  have power to review any judgment pronounced or order made by it."

6. He submits that the scope of review in criminal cases is broader than in

civil cases and unless some reasons are recorded while dismissing the

special leave petition, the remedy of review would become illusive.  He

also  referred  to  the  judgment  of  this  Court  in  Mohammed  Ajmal

Mohammad Amir Kasab alias Abu Mujahid vs. State of Maharashtra1

where the Court succinctly stated the approach that is needed in dealing

with the cases of death sentence, with the following observations:

"5. We  may  also  state  here  that  since  it  is  a  case  of  death sentence, we intend to examine the materials on record first hand, in accordance with the time-honoured practice of this Court, and come  to  our  own  conclusions  on  all  issues  of  facts  and  law, unbound by the findings of the trial court and the High Court."

7. Mr. Naphade also referred to the provisions of Order XXII Rule 7 of the

Supreme Court  Rules which provide for  summoning of  the trial  court

record for deciding the appeals and reads as under:

"7.  (1)  If  the petitioner  is  in  jail  and  is  not  represented  by an advocate-on-record, he may present his petition for special leave to appeal together with the certified copy of the Judgment and any  written  argument  which  he  may desire  to  advance to  the officer in charge of the jail, who shall forthwith forward the same

1 (2012) 9 SCC 1

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to the Registrar of this Court. Upon receipt of the said petition, the Registrar of the Court shall, whenever necessary call, from the proper  officer  of  the  Court  or  the  Tribunal  appealed  from,  the relevant documents for determination of  the petition for special leave to appeal.

(2)  As  soon  as  all  necessary  documents  are  available  the Registrar shall direct engagement of an Advocate from the panel of Supreme Court Legal Services Committee, or assign a Panel Advocate at the cost of the state and thereafter place the petition and complete documents for hearing before the Court. The fee of the advocate so engaged shall  be such,  as may, from time to time, be fixed by the Chief Justice.

(3) After the hearing of the petition or the appeal, as the case may be, is over, the Registrar, the Additional Registrar or the Deputy Registrar shall issue to the Advocate, engaged at the cost of the State,  a certificate in the prescribed form indicating therein the name  of  the  said  Advocate  engaged  at  the  cost  of  the  State concerned and the amount of fees payable to the said advocate.

(4)  The  State  concerned  shall  pay  the  fees  specified  in  the certificate  issued  under  sub-rule  (3)  to  the  Advocate  named therein within three months from the date of his presenting before it his claim for the fees supported by the certificate. If the fees are not  paid  within  the  period  abovesaid,  the  Advocate  shall  be entitled  to  recover  the  same  from  the  State  concerned  by enforcement of the certificate as an order as to costs under the Supreme Court (Decrees and Orders) Enforcement Order, 1954.

Explanation.—For the purposes of this rule, the term “State” shall include a Union Territory."

8. His argument was that though normally such record is summoned only

after  the  special  leave  petition  is  granted,  but  in  those cases where

death sentence is imposed, the court should summon the record when it

is  making the final  order  even at  the stage of  special  leave petition,

keeping in view the spirit of the principles laid down in paragraph 5 of

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the Kasab's case.

9. We  have  given  our  thoughtful  consideration  to  the  aforesaid

submissions of the learned senior counsel for the petitioner.  We find

considerable force in, at least, some of the submissions made by Mr.

Naphade.

10.In cases where an accused is convicted for offence under Section 302,

IPC, minimum sentence that is to be awarded is the life imprisonment.

However,  in rarest of rare cases, the Sessions Court may award death

sentence as well.  As per the provisions of  Section 235 of the Code of

Criminal  Procedure,  it  is  mandatory  for  the  sessions  court  to  give  a

proper hearing to the accused on the question of sentence as well.  The

necessity  and  importance  of  such  a  hearing  is  explained  in  Rajesh

Kumar vs. State Through Government of NCT of Delhi2 wherein after

referring  to  various  earlier  judgments,  this  Court  summed  up  in  the

following manner:

"44. In Santa Singh [(1976) 4 SCC 190 : 1976 SCC (Cri) 546] this Court  noted  that  in  most  countries  of  the  world  problem  of sentencing the criminal offender is receiving increasing attention and it is so in view of rapidly changing attitude towards crime and criminal.  In  many  countries,  intensive  study of  sociology  of  the crime has shifted the focus from the crime to the criminal, leading to a widening of the objectives of sentencing and simultaneously of the range of the sentencing procedures.

2 (2011) 13 SCC 706

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45. Bhagwati, J. (as His Lordship then was) giving the judgment in Santa Singh[(1976) 4 SCC 190 : 1976 SCC (Cri) 546] pointed out and which was later on accepted in Bachan Singh v. State of Punjab [(1980)  2  SCC  684  :  1980  SCC  (Cri)  580]  that  proper exercise of sentencing discretion calls for consideration of various factors  like  the  nature  of  offence,  the  circumstances—both extenuating or aggravating, the prior criminal record, if any, of the offender, the age of the offender, his background, his education, his personal life, his social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of his rehabilitation in the life of community, the  possibility  of  treatment  or  training  of  the  offender,  the possibility that the sentence may serve as a deterrent to crime by the offender or by others. After referring to all the aforesaid facts, the learned Judge opined as under: (Santa Singh case [(1976) 4 SCC 190 : 1976 SCC (Cri) 546] , SCC p. 195, para 3)

“3. … These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear  the  accused  in  regard  to  these  factors  bearing  on sentence and then pass proper sentence on the accused. Hence the new provision in Section 235(2).”

46. After  analysing  the  aforesaid  aspects,  the  learned  Judge in Santa Singh case[(1976)  4  SCC 190 :  1976 SCC (Cri)  546] posed  the  question:  What  is  the  meaning  and  content  of expression “hear the accused”? By referring to various aspects and also the opinion expressed by the Law Commission in  its Forty-eighth  Report,  Bhagwati,  J.  (as  His  Lordship  then  was) opined that the hearing contemplated under Section 235(2) is not confined merely to oral submissions but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence. However, there was a note of caution that in the name of such hearing, the court proceedings should not be unduly protracted. 47. This Court held in Santa Singh [(1976) 4 SCC 190 : 1976 SCC (Cri) 546] that non-compliance with such hearing is not a mere irregularity  curable  under  Section  465  of  the  1973  Code.  This Court speaking through Bhagwati, J. (as His Lordship then was) emphasised  that  this  legal  provision  under  our  constitutional values  has  acquired  a  new  dimension  and  must  reflect  “new trends in penology and sentencing procedures” so that penal laws can be used as a tool for reforming and rehabilitating the criminals and smoothening out the uneven texture of the social fabric and

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not merely as a weapon for protecting the hegemony of one class over the other (see p. 197, para 6 of the Report). 48. In Muniappan v. State of T.N. [(1981) 3 SCC 11 : 1981 SCC (Cri) 617] Chandrachud, C.J. delivering the judgment again had to consider  the  importance  of  Section  235(2)  and  Section  354(3) CrPC in our sentencing procedure. The learned Chief Justice held that  the  obligation  to  hear  the  accused  on  the  question  of sentence  under  Section  235(2)  of  the  1973  Code  is  not discharged by putting a formal question to the accused as to what he has to say on the question of  sentence.  The learned Chief Justice made it clear that the Judge must make a genuine effort to elicit  from  the  accused  all  items  of  information  which  will eventually  bear on the question of  sentence.  All  such items of information that would furnish a clue to the genesis of the crime and the motivation of  the criminal  are relevant and the learned Chief Justice emphasised that in such an exercise,

“it is the bounden duty of the Judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view”.

49. The learned Chief Justice further said that in the sentencing procedure it  is not only the accused but the entire society is at stake and therefore the questions the Judge puts and the answers the accused gives may be beyond the narrow constraints of the Evidence  Act.  In  the  words  of  the  learned  Chief  Justice  the position of  the Court  in an exercise under Section 235(2) is as follows:  (Muniappan  case [(1981)  3  SCC  11 :  1981  SCC  (Cri) 617] , SCC pp. 13-14, para 2)

“2. … The court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.”

50. To the  same  effect  is  the  judgment  of  Ahmadi,  J.  (as  His Lordship  then was)  in Allauddin  Mian v. State of  Bihar [(1989)  3 SCC 5 : 1989 SCC (Cri) 490] . Explaining the purpose of Section 235(2), this Court in Allauddin Mian [(1989) 3 SCC 5 : 1989 SCC (Cri) 490] held that Section 235(2) satisfies a dual purpose; first of all it satisfies rules of natural justice by according to the accused an opportunity of being heard on the question of sentence. Under such sentencing procedure the accused is given an opportunity to place before the court all relevant materials having a bearing on the question of  sentence. The Court  opined that it  is a salutary principle and must be strictly observed and is not a matter of mere formality. This Court further held that in such hearing exercise the

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accused should be given a real and effective opportunity to place his antecedents, social and economic background, etc. before the court, for the court to take a fair decision on sentence as otherwise the sentence would be vulnerable.

51. The  Court  therefore  opined:  (Allauddin  Mian  case [(1989)  3 SCC 5 : 1989 SCC (Cri) 490] , SCC p. 21, para 10)

“10. … 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.”

52. Therefore,  it  is  clear  from the purpose of  Section 235(2)  as explained in the aforesaid cases, that the object of hearing under Section 235(2) being intrinsically and inherently connected with the sentencing procedure, the provision of Section 354(3) which calls for recording of special reason for awarding death sentence must be  read  conjointly  with  Section  235(2)  of  the  1973  Code.  This Court  is  of  the opinion that  special  reasons can only  be validly recorded  if  an  effective  opportunity  of  hearing  as  contemplated under Section 235(2) CrPC is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. These two provisions do not stand in isolation but must be construed as supplementing each other as ensuring the constitutional guarantee of a just, fair and reasonable procedure in the exercise of sentencing discretion by the court. 53. These changes in the sentencing structure reflect the “evolving standards  of  decency”  that  mark  the  progress  of  a  maturing democracy and which is in accord with the concept of dignity of the individual—one  of  the  core  values  in  our  Preamble  to  the Constitution. In a way these changes signify a paradigm shift in our jurisprudence with the gradual transition of our legal regime from “the rule of law” to the “due process of law”, to which this Court would advert to in the latter part of the judgment."

11.When it comes to providing hearing in cases where the judicial mind is

to be applied in choosing the sentence between life imprisonment and

death, this requirement assumes greater importance.  It has been held

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in Bachan Singh’s case that since death sentence can be awarded only

in  the  'rarest  of  rare  cases',  the  Court  is  supposed  to  give  'special

reasons'  when  it  choses  to  award  death  sentence.   The  reasoning

process has to undertake the exercise of considering mitigating as well

as aggravating circumstances and after weighing those circumstances

with objective assessment,  a decision has to be taken in this behalf.

Such an exercise inherently calls for recording of reasons for awarding

death sentence.  The legislature has added another dimension in order

to obviate any possibility of error, by making a specific provision to the

effect that in those cases where the Session Judge inflicts death penalty,

it has to be affirmed and approved by the High Court.

12.Keeping  in  view  all  the  aforesaid  factors,  particularly,  when   death

sentence is rare, this Court has emphasised time and again that in such

cases there has to be an independent examination by this Court also,

'unbound by the findings of the trial court and the High Court'.   Such

approach is the 'time-honoured practice of this Court',  as observed in

Kasab's case.

13.Again, while undertaking the exercise as to whether the death penalty is

to be given imprimatur by this Court, even after the approval thereof by

the High Court, case law of this Court amply demonstrates that proper

exercise of sentence discretion calls for consideration of various factors

like  the  nature  of  offence,  circumstances—both  extenuating  or

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aggravating, the prior criminal record, if any, of the offender, the age of

the offender, his background, his education, his personal life, his social

adjustment,  the  emotional  and  mental  condition  of  the  offender,  the

prospects  for  the  rehabilitation  of  the  offender,  the  possibility  of  his

rehabilitation  in  the  life  of  community,  the  possibility  of  treatment  or

training of the offender, the possibility that the sentence may serve as a

deterrent to crime by the offender or by others.

14.The accepted practice of this Court to afford hearing in the cases where

death penalty is challenged, has also been acknowledged in Dayanidhi

Bisoi vs. State of Orissa3 and re-enforced by the Constitution Bench

judgment in Mohd. Arif Alias Ashfaq vs. Registrar, Supreme Court of

India and Others4.  In Mohd. Arif case, this Court made departure from

the  rule  of  hearing  the  review  petitions  in  chambers  by  making  an

exception to this rule and held that when review petition is filed seeking

review of the order of this Court affirming death penalty, such a review

petition  should  be  heard  in  the  open  court  and  by  a  Bench  of

three-Judges.   Relevant  portion  of  the  said  judgment  is  reproduced

below:

"34. We  feel  that  this  oral  hearing,  in  death  sentence  cases, becomes  too  precious  to  be  parted  with.  We  also  quote  the following  observations  from  that  judgment:  (P.N.  Eswara  Iyer case [P.N. Eswara Iyer v. Registrar, Supreme Court of India, (1980) 4 SCC 680] , SCC p. 692, para 29-A)

3 (2003) 9 SCC 310 4 (2014) 9 SCC 737

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“29-A. The possible impression that we are debunking the value  of  oral  advocacy  in  open  court  must  be  erased. Experience has shown that, at all levels, the bar, through the spoken word and the written brief, has aided the process of judicial justice. Justicing is an art even as advocacy is an art. Happy interaction between the two makes for the functional fulfillment  of  the court  system. No judicial  ‘emergency’ can jettison the vital breath of spoken advocacy in an open forum. Indeed,  there  is  no  judicial  cry  for  extinguishment  of  oral argument altogether.”

35. No doubt, the Court thereafter reminded us that the time has come for proper evaluation of oral argument at the review stage. However, when it comes to death penalty cases, we feel that the power of the spoken word has to be given yet another opportunity even if the ultimate success rate is minimal."

15.A cumulative effect of all the aforesaid circumstances does suggest that

special  leave  petition  filed  in  those  cases  where  death  sentence  is

awarded by the courts below, should not be dismissed without giving

reasons, at least qua death sentence.  There may be cases where at the

Special Leave Petition stage itself,  the Court may find that insofar as

conviction is concerned there is no scope for interference at all as such

a conviction for offence under Section 302 is recorded on the basis of

evidence which is impeccable, trustworthy, credible and proves the guilt

of the accused beyond any shadow of doubt.  At the same time, if death

penalty  is  to  be  affirmed  even  while  dismissing  the  Special  Leave

Petition  in limine,  it  should be by a reasoned order on the aspect of

sentence, at least.

16.In the instant case, since the special leave petition filed by the review

petitioner was dismissed in limine with one word and without giving any

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reasons, we allow this review petition and recall the order dated January

06, 2015.  As a consequence, SLP(Criminal) No. 458 of 2015 is restored

to its original number.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

.............................................J. (INDIRA BANERJEE)

NEW DELHI; NOVEMBER 01, 2018.

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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO.  1440     OF 2018 [ARISING OUT OF SLP (CRL.) NO. 458 OF 2015]

BABASAHEB MARUTI KAMBLE .....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.   

2. We have heard the counsel for the parties at length.

3. This appeal is filed by the appellant who has been convicted for offences

under Sections 302, 376(2)(f) and 342 of the Indian Penal Code (for short,

'IPC').   He  was  awarded  death  penalty  for  the  offence  punishable  under

Section 302, IPC by the trial  court  vide its judgment dated September 27,

2013 in Sessions Case No. 87 of 2012.  For offence under Section 376(2)(f) of

IPC,  the appellant  was sentenced to life  imprisonment  and for  the offence

under Section 342 of IPC, the trial court awarded simple imprisonment for two

months.

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4. Since sentence of death was imposed on the petitioner, the Sessions

Judge made a reference to the High Court for confirmation of death sentence.

The petitioner also challenged his conviction and sentences imposed by filing

Criminal Appeal No. 80 of  2014 before the High Court.  The said appeal as

well as reference were heard together by the High Court.  The High Court

upheld the conviction under the aforesaid provisions and also confirmed death

sentence of the petitioner vide its judgment dated July 09/10, 2014.

5. It is this judgment which is assailed in the present appeal.  In the first

instance, we have heard learned counsel for the parties on the question as to

whether the conviction of the appellant has been rightly recorded by the trial

court, and affirmed by the High Court. Learned counsel for both the parties

have taken us through the material on record as well as relevant evidence

which was produced by the prosecution before the trial court.  No doubt it is a

case of circumstantial evidence as there are no eye-witnesses.  At the same

time, we find that the circumstances produced before the trial court weave an

unbroken chain  which  point  accusing  finger  towards  the  appellant  thereby

proving  the  guilt  of  the  accused  beyond  reasonable  doubt.   These

circumstances  are  recorded  by  the  High  Court  as  well  in  para  8  of  the

judgment.  There are as many as eleven incriminating circumstances which

have been proved on record.  These include the circumstances of last seen,

namely, appellant was found talking with the victim girl and taking her to his

house.  Such an occurrence was seen by PW-4 Dharmendra, PW-5 Shrikant,

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PW-15 Survarna and PW-21 Radheshyam.  The Court has also gone into the

conduct of the appellant when the mother of the victim girl went to his house

to enquire about her daughter.  The appellant had replied that he had not sent

her daughter anywhere and that  he was not  aware of  whereabouts of  her

daughter.  However, the dead body of the victim girl was found in his house

under the bed on which he was lying down, when enquired.  Slippers and

clothes of the victim girl were also recovered from the house of the appellant.

Likewise there was a seizure of blood stained chadar.  The medical evidence

produced by the prosecution including DNA report and post-mortem report of

the girl completely corroborated the aforesaid circumstances.  Above all, the

appellant had not offered any plausible explanation about the presence of the

dead  body  of  the  victim  girl  in  his  house  or  about  other  incriminating

circumstances, when his statement was recorded under Section 313 of the

Cr.PC.   There  is  an  elaborate  discussion  about  the  deposition  of  various

witnesses who proved the aforesaid circumstances.  Mr. Naphade, learned

senior counsel appearing for the appellant was unable to point out any flaw in

the impugned judgment  of  the  High Court  upholding the conviction  of  the

appellant under the provisions of Section 302, 376(2)(f) and Section 342 of

IPC.  In fact, conscience of the limitation of the appellant's case insofar as his

conviction is concerned, main emphasis of Mr. Naphade was on the death

sentence which is imposed upon the appellant for offence under Section 302,

IPC.  For the aforesaid reasons insofar as conviction of the appellant under

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the aforesaid provisions of  IPC is  concerned,  the same is  maintained and

upheld.

6. Reverting  to  the  issue  of  death  penalty,  learned  senior  counsel

submitted that the case did not fall under the category of rarest of rare cases

and, therefore, the capital punishment was not a desirable punishment in the

instant  case.   We have  given  our  serious  thoughts  on  this  aspect.   After

examining the matter at length, we are of the opinion that the instant case

would not fall in the category of rarest of rare cases and it would be in the

interest of justice if the death sentence is commuted into life imprisonment. At

the same time we are also of the opinion that life sentence should be with a

cap  of  20  years  rigorous  imprisonment  (RI)  which  would  mean  that  the

appellant shall not be entitled to make any representation for remission till he

completes 20 years of RI.   It is  more so, keeping in view the age of the

appellant who is at present more than 60 years of age, and has no history of

any other  criminal  activity, possibility  of  reform, as the learned counsel for

respondent-State could not point out blameworthy conduct depicted by him in

jail.

7. The  appeal  is  partly  allowed  in  the  aforesaid  terms.    Insofar  as

sentences given under Sections 376 and 342, IPC are concerned, those are

maintained with clarification that all the sentences shall run concurrently.  

.............................................J.

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(A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

.............................................J. (INDIRA BANERJEE)

NEW DELHI; NOVEMBER 01, 2018.