REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO(S). 1482-1483 OF 2018 [Arising out of S.L.P. (Criminal) No(s). 5898-5899 OF 2014]

CHHANNU LAL VERMA                       … APPELLANT (S)

VERSUS

THE STATE OF CHHATTISGARH       … RESPONDENT(S)

J U D G M E N T

KURIAN, J.

1. Leave granted.

2. These appeals are filed against the order of the High Court of

Chhattisgarh  dated  11.04.2014  confirming  the  death  sentence

awarded  to  the  appellant  by  the  Sessions  Judge,  Durg  vide  its

judgment  in  Sessions  Trial  No.  288/2011  dated  25.06.2013.  The

appellant has challenged both the conviction and the sentence.  

3. The  brief  facts  in  the  present  case  are  as  follows.  On

19.10.2011,  it  is  alleged that  the appellant  entered the house of

Anandram Sahu, Firanteen Bai (wife of Anandram Sahu) and Smt.

Ratna  Sahu (daughter-in-law of  Anandram).  The appellant  caused

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fatal  injuries  to  Anandram,  Ratna  Sahu  and  Firanteen  Bai  with  a

knife.  Thereafter,  the  appellant  entered  the  house  of  Durga

Banchhor with a blood-stained knife and assaulted Meera Banchhor

and  inflicted  grievous  injuries.  When  Durga  Banchhor  tried  to

intervene, she was pushed away by the appellant who then fled from

the spot.

4. The Sessions Court convicted the appellant for murder under

Section 302 of the IPC, attempt to murder under Section 307 IPC,

threatening to  kill  under  Section 506 (2)  IPC  and house trespass

under  Section  450  IPC  and  sentenced  him  to  undergo  life

imprisonment, imposed fines and awarded him death sentence.  The

Court  took the  view that  this  is  a  case  of  the rarest  of  the rare

category. The way the appellant also picked and chose the people

indicated that the act was pre-meditated. And since the appellant

exhibited cruelty in the process, the Court held it as a case under

the rarest of the rare cases category and the appellant was awarded

death sentence.   5. The  High  Court  while  confirming  the  conviction  and  death

sentence, relied upon the testimony of PW-15 Sonu who is a child

witness, PW-11 Durga Bai, PW-8 Basanta, PW-9 Sukhdev Yadav and

PW-10  Jailal  Dhankar,  apart  from  post-mortem  reports.  The

aggravating  and  mitigating  circumstances  were  also  considered.

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While balancing the aggravating and mitigating circumstances, the

following have been viewed as aggravating circumstances:  i. That the appellant has committed murder of three persons.  

ii. That the appellant  knew what he was doing and the conse- quences thereof and yet he committed the offence.  

iii. That the murder of Ratna Bai was committed as he was previ- ously charged of rape with the deceased Ratna and detained in jail for a year although he was later acquitted.  

iv. Apart from committing murder of three persons, he has also caused grievous injuries to three persons.  

v. That two of the deceased and one of the injured persons were women.  

The only mitigating circumstance that the Court took note of was the

fact that the appellant had been previously accused of committing

rape and was detained in jail for one year only to be acquitted later.

Another factor that the High Court placed reliance on was that the

appellant either feigned ignorance to or denied the questions put to

him by the Trial Judge. The Court thus drew the inference that he did

not  make  a  case  that  the  offence  was  committed  by  him  in  an

emotional  or  highly  disturbed  state  of  mind  owing  to  false

implication in the rape case. The Court held that “the appellant did

not mitigate the circumstance for not imposing the death sentence.”

In  conclusion,  the  High  Court  held  that  the  aggravating

circumstances  outweighed  the  mitigating  circumstances  and  the

case thus fell within the ambit of rarest of the rare case which calls

for  the imposition of  death penalty.   Having regard to the strong

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evidence on record, Mr. Colin Gonsalves, learned senior counsel for

the appellant finally, and according to us rightly, submitted that at

least the sentence may be commuted to life.

6.  The learned senior counsel has pointed out that the hearing for

conviction and sentencing was done on the same day in violation of

the guidelines laid down in Bachan Singh v. State of Punjab1 and

that the appellant should have been given ample time to adduce

evidence in mitigation and thereafter to be heard on the question of

sentence.  Reliance  has  also  been  placed  on Santosh  Kumar

Satishbhushan Bariyar v. State of Maharashtra2 wherein the

Court held that under Sections 235(2) and 354(3) of the  Code of

Criminal Procedure, 1973 there is a mandate for a full-fledged and

bifurcated hearing and recording of “special reasons” if the court is

inclined to award death sentence. The Trial Court has solely looked

at  the  brutality  of  the  crime  to  impose  death  penalty  whereas

Bachan  Singh  (supra)  and  Santosh  Bariyar  (supra)

unambiguously  have  held  that  aggravating  and  mitigating

circumstances with regard to both the crime and the criminal need

to be collected before imposing death penalty. Another contention

raised by the appellant is that the High Court has erred in holding

that  the  appellant  did  not  mitigate  the  circumstance  for  not 1 (1980) 2 SCC 684 2 (2009) 6 SCC 498

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imposing  death  penalty  when  the  onus  to  elicit  information

necessary for the purpose of sentencing is on the court as held in

Bachan Singh  (supra).  It  is also argued that the High Court has

overlooked the condition laid down in  Bachan Singh  (supra) that

the State has to prove that the accused does not demonstrate any

probability of reformation or rehabilitation. On the above-mentioned

grounds, the counsel for the appellant prays that the death sentence

imposed be commuted to imprisonment for life.

7. According to the counsel for the respondent State, the  mens

rea of the appellant was of high degree and intensity and that the

Courts were right in imposing death penalty. It has also been pointed

out that the appellant had a previous criminal background with the

same family in a Section 376 IPC case and thus it is a case where he

has  failed  to  reform  himself.  The  respondent  has  also  advanced

arguments  based  on  the  testimony  of  the  child  witness,  placing

reliance on  Sonu Sardar v. State of Chhattisgarh3. The blows

delivered by the appellant were intended to commit murder as all

the injuries were severe and inflicted on vital parts. The counsel also

pointed out that the appellant had previous enmity with the family

and the murder was carried out in cold blood and in a premeditated

manner, without any provocation from the victims. The appellant has

not attempted to establish that the act was committed by him due 3 (2012) 4 SCC 97

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to  emotional  instability  caused by the false implication in  a  rape

case  with  one  of  the  deceased.  In  short,  the  appellant  has  not

mitigated the circumstances for avoiding death sentence.

8. In  Bachan Singh  (supra)  while  upholding  the  constitutional

validity  of  death penalty  in  India,  it  was held  that  under  Section

354(3)  of  the  CrPC,  imprisonment  for  life  is  the  rule  and  death

sentence  is  the  exception.  The  Court  emphasized  the  need  for

principled  sentencing  without  completely  trammeling  the

discretionary  powers  of  the  judges.  It  also  held  that  the “special

reasons”  that  are  required  to  be  recorded  while  awarding  death

sentence means “exceptional reasons” founded on the exceptionally

grave circumstances of the particular case relating to the crime as

well  as  the  criminal.  Some  of  the  aggravating  and  mitigating

circumstances indicated in Bachan Singh (supra) are: -

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

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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.”

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.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3)  The  probability  that  the  accused  would  not  commit criminal  acts  of  violence as would constitute a  continuing threat to society.

(4)  The probability that the accused can be reformed and rehabilitated.  The  State  shall  by  evidence  prove  that  the accused does not satisfy the conditions (3) and (4) above.

(5)  That  in  the  facts  and  circumstances  of  the  case  the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally  defective  and  that  the  said  defect  impaired  his capacity to appreciate the criminality of his conduct.

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9. The Court also clarified that while determining the punishment,

due regard must be given to the crime as well as the criminal. The

aggravating and mitigating circumstances would have to be viewed

from  the  perspective  of  both  the  crime  and  the  criminal.  The

relevant discussion reads thus:  

“201.  …As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the  existence  or  absence  of  “special  reasons”  in  that context,  the court  must  pay due regard     both     to  the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular  case. More often than not, these two aspects are so intertwined that it is difficult to give  a  separate  treatment  to  each  of  them.  This  is  so because “style is the man”. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a  demonstrated  index  of  the  depraved  character  of  the perpetrator. That is why, it is not desirable to consider the circumstances  of  the  crime and  the  circumstances  of  the criminal  in  two  separate  watertight  compartments.  In  a sense,  to  kill  is  to  be cruel  and therefore all  murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist.”  

                                                            (Emphasis supplied)

However, the Court has emphasised that the list of aggravating and

mitigating circumstances provided above are not exhaustive and the

scope of mitigating factors in death penalty must receive a liberal

and expansive construction by the courts. Paragraph 209 reads as

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follows:

“209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances  of  aggravation.  “We  cannot  obviously  feed into  a judicial  computer  all  such situations since they are astrological  imponderables  in  an imperfect  and undulating society.” Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show  that  in  the  past,  courts  have  inflicted  the  extreme penalty with extreme infrequency — a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave  a  matter.  It  is,  therefore,  imperative  to  voice  the concern that courts,  aided by the broad illustrative guide- lines  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.”

(Emphasis supplied)

10. In  Machhi Singh v. State of Punjab4 the Court summarised

the findings in Bachan Singh (supra) and held as follows:  

“38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of

4 (1983) 3 SCC 470

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death  sentence  arises.  The  following  propositions  emerge from Bachan Singh case:

(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.

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

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weightage to the mitigating circumstances which speak in favour of the offender?

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

(Emphasis supplied)

11. It is evident that the Court in Bachan Singh (supra) has set a

very high threshold  of  “rarest  of  rare cases when the alternative

option is unquestionably foreclosed” for the grant of death penalty.

The meaning and ambit  of this expression has been discussed in

Santosh Bariyar (supra). The Court also emphasised the need for a

bifurcated hearing for the purpose of conviction and sentencing. The

relevant portion reads:   

“56. At this stage, Bachan Singh informs the content of the sentencing hearing.  The court must play a proactive role to record all  relevant  information at  this  stage. Some of  the information  relating  to  crime  can  be  culled  out  from  the phase prior  to  sentencing hearing.  This  information would include aspects relating to the nature, motive and impact of crime,  culpability  of  convict,  etc.  Quality  of  evidence adduced  is  also  a  relevant  factor.  For  instance,  extent  of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking,  in  most  capital  sentencing  cases,  is  information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th Report of the Law Commission.

57. Circumstances  which  may  not  have  been  pertinent  in conviction can also play an important role in the selection of sentence.  Objective  analysis  of  the  probability  that  the

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accused can be reformed and rehabilitated can be one such illustration. In  this  context,  Guideline  4  in  the  list  of mitigating  circumstances  as  borne  out  by Bachan  Singh is relevant. The Court held: (SCC p. 750, para 206)

“206.  (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.”

In fine, Bachan Singh mandated identification of aggravating and  mitigating  circumstance  relating  to  crime  and  the convict to be collected in the sentencing hearing.

58. The rarest  of  rare dictum  breathes  life  in  “special reasons”  under  Section  354(3).  In  this  context, Bachan Singh laid  down  a  fundamental  threshold  in  the  following terms: (SCC p. 751, para 209)

“209. … 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.”                                                (emphasis supplied)

An analytical reading of this formulation would reveal it to be an authoritative negative precept. The “  rarest of rare     cases” is an exceptionally narrow opening provided in the domain of this  negative  precept.  This  opening  is  also  qualified  by another condition in the form of “when the alternative option is unquestionably foreclosed”.

59. Thus,  in  essence,  the rarest  of  rare dictum imposes  a wide-ranging embargo on award of death punishment, which can  only  be  revoked if  the  facts  of  the  case  successfully satisfy double qualification enumerated below:

1  .  that  the  case  belongs  to  the     rarest  of rare     category, 2  .  and  the  alternative  option  of  life

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imprisonment  will  just  not  suffice  in  the facts of the case.

60. The rarest  of  rare dictum  serves  as  a  guideline  in enforcing Section 354(3) and entrenches the policy that life imprisonment  is  the  rule  and  death  punishment  is  an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.

61. The background analysis leading to the  conclusion that the case belongs to the     rarest of rare     category must conform to highest standards of  judicial  rigor  and thoroughness as the  norm  under  analysis  is  an  exceptionally  narrow exception. A conclusion as to the     rarest of rare     aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the  criminal.  It  was  in  this  context  noted:  (Bachan  Singh case, SCC p. 738, para 161

“161. … The expression ‘special reasons’ in the context of this provision, obviously means  ‘exceptional  reasons’  founded  on the exceptionally  grave circumstances of the particular case relating to the crime as well as the criminal.””                                       (Emphasis supplied)  

12.  In Shankar Kisanrao Khade v. State of Maharashtra5 this

Court looked at the manner in which the aggravating and mitigating

circumstances are to be weighed and how the rarest of rare test is to

be applied while awarding death sentence and held thus:

“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

5 (2013) 5 SCC 546  

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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,  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.”

(Emphasis supplied)

13.  In our opinion, the High Court has erroneously confirmed death

penalty  without  correctly  applying  the  law  laid  down  in  Bachan

Singh  (supra),  Machhi  Singh  (supra),  Santosh Bariyar (supra)

and Shankar Kisanrao Khade (supra). The decision to impose the

highest punishment of death sentence in this case does not fulfil the

test  of  “rarest  of  rare  case  where  the  alternative  option  is

unquestionably foreclosed”. The questions laid down in paragraph

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39  of  Machhi  Singh  (supra)  have  not  been  answered  in  the

particular  case.  No  evidence  as  to  the  uncommon  nature  of  the

offence or the improbability of reformation or rehabilitation of the

appellant has been adduced. Bachan Singh (supra) unambiguously

sets out that death penalty shall be awarded only in the rarest of

rare cases where life imprisonment shall  be wholly inadequate or

futile  owing  to  the  nature  of  the  crime  and  the  circumstances

relating  to  the  criminal.  Whether  the  person  is  capable  of

reformation  and  rehabilitation  should  also  be  taken  into

consideration  while  imposing  death  penalty.  As  laid  down  in

Shankar Kisanrao Khade (supra), whether the person would be a

threat to society or whether not granting death penalty would send a

wrong message to society are additional factors to be looked at. No

such analysis was undertaken by the High Court. The High Court has

also failed to look at the aggravating and mitigating circumstances

regarding the criminal as warranted by Bachan Singh (supra). The

fact that the appellant had no previous criminal record apart from

the acquittal in the Section 376, IPC, which was a false implication

and the alleged motive did not  weigh with the High Court  as an

important mitigating circumstance with respect to the criminal.

14. In the past four decades or so, this Court has been consistently

echoing its concern on the constitutional ethos on value and dignity

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of  life,  when  it  said  in  Bachan  Singh  (supra)  that  ‘extreme

depravity’  (paragraph 201),  ‘it  is the duty of the State to adduce

evidence  that  there  is  no  probability  that  the  accused  can  be

reformed’  (paragraph  206),  ‘liberal  and  expansive  connotation’

(paragraph  209),  ‘alternative  option  is  unquestionably  foreclosed’

(paragraph  209)  ‘humane  concern’  (paragraph  209),  ‘real  and

abiding  concern  for  dignity  of  human  life’  (paragraph  209),  in

Machhi  Singh (supra)  that  ‘gravest  case  of  extreme culpability’

(paragraph  38),  ‘only  when  life  appears  to  be  an  altogether

inadequate punishment’ (paragraph 28), ‘mitigating circumstances

should be given full weightage’ (paragraph 38), in Santosh Bariyar

(supra)  that  ‘probability  that  the  accused  can  be  reformed  and

rehabilitated’ (paragraph 57), ‘the rarest of rare case is a negative

precept’ (paragraph 58), ‘death is an exceptionally narrow opening’

(paragraph 58), ‘extraordinary burden on the Court to impose death’

(paragraph 60),  ‘maximum weightage to mitigating circumstances

and  yet  no  alternative  except  death’  (paragraph  39),  ‘highest

standards of judicial rigor and thoroughness’ (paragraph 61), and in

Shankar Kisanrao Khade  (supra) that ‘possibility of reformation,

young age of the accused, not a menace to the society, no previous

track record’ (paragraph 52) etc.  These factors have not received

due consideration by either the High Court or the Trial Court.    

16

15. The appeal has been pending before this Court for the past four

years.  Since  the  appellant  has  been  in  jail,  we  wanted  to  know

whether  there  was  any  attempt  on  his  part  for  reformation.  The

superintendent of the jail has given a certificate that his conduct in

jail  has  been good.  Thus,  there  is  a  clear  indication that  despite

having lost all hope, yet no frustration has set on the appellant. On

the contrary, there was a conscious effort on his part to lead a good

life for the remaining period. A convict is sent to jail with the hope

and expectation that he would make amends and get reformed. That

there is such a positive change on a death row convict, in our view,

should  also  weigh  with  the  Court  while  taking  a  decision  as  to

whether the alternative option is unquestionably foreclosed. As held

by the Constitution Bench in Bachan Singh (supra) it was the duty

of  the  State  to  prove  by  evidence  that  the  convict  cannot  be

reformed  or  rehabilitated.  That  information  not  having  been

furnished by the State at  the relevant  time,  the information now

furnished by the State becomes all the more relevant. The standard

set by the ‘rarest of rare’ test in  Bachan Singh (supra) is a high

standard. The conduct of the convict in prison cannot be lost sight of.

The fact that the prisoner has displayed good behaviour in prison

certainly goes on to show that he is not beyond reform.  

16. In  the  matter  of  probability  and  possibility  of  reform  of  a

17

criminal,  we  do  not  find  that  a  proper  psychological/psychiatric

evaluation  is  done.  Without  the  assistance  of  such  a

psychological/psychiatric assessment and evaluation it would not be

proper to hold that there is no possibility or probability of reform.

The State has to bear in mind this important aspect while proving by

evidence that the convict cannot be reformed or rehabilitated.  

17. Another aspect that has been overlooked by the High Court is

the  procedural  impropriety  of  not  having  a  separate  hearing  for

sentencing at the stage of trial. A bifurcated hearing for conviction

and sentencing was a necessary  condition laid  down in  Santosh

Bariyar (supra).  By conducting the hearing for sentencing on the

same day, the Trial court has failed to provide necessary time to the

appellant to furnish evidence relevant to sentencing and mitigation.

18. For the abovementioned reasons, we hold that the imposition of

death sentence was not the only option and hence the same needs

to be commuted to imprisonment for life.   

Future of death penalty in India  

19. Since Bachan Singh (supra) is a Constitution Bench decision of

this Court, the Courts are bound to follow the principles laid down in

the said judgment until it is duly revisited. But we cannot altogether

ignore the fact that various Benches have, over a period of time,

expressed  concern  regarding  the  inconsistent  application  of  the

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principles laid down in Bachan Singh (supra) and have also taken

forward  the  application  of  the  principles  to  reduce  such

inconsistencies.  In  Santosh Bariyar  (supra),  the Court noted the

global move away from death penalty and observed:

“109. …it is now clear that even the balance sheet of  aggravating  and  mitigating  circumstances approach invoked on a case-by-case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the     Bachan Singh   threshold of “the     rarest of rare     cases” has been most variedly and  inconsistently  applied  by  the  various  High Courts as also this Court.

110. At this point we also wish to point out that the uncertainty  in  the  law  of  capital  sentencing  has special consequence as the matter relates to death penalty—the  gravest  penalty  arriving  out  of  the exercise  of  extraordinarily  wide  sentencing discretion,  which  is  irrevocable  in  nature.  This extremely uneven application of Bachan Singh has given  rise  to  a  state  of  uncertainty  in  capital sentencing  law  which  clearly  falls  foul  of constitutional  due  process  and  equality  principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either through law or precedent,  as to the scope of the discretion  and  the  manner  of  its  exercise.  There should also be sufficient clarity having regard to the legitimate  aim  of  the  measure  in  question.  The Constitution of India provides for safeguards to give the individual adequate protection against arbitrary imposition of criminal punishment.”

20. In Sangeet v. State of Haryana6 the Court notes that  

“30. The  application  of  the  sentencing  policy 6 (2013) 2 SCC 452

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through aggravating and mitigating circumstances came up for consideration in Swamy Shraddananda (2) v. State  of  Karnataka.  On  a  review,  it  was concluded in para 48 of the Report that there is a lack  of  evenness  in  the  sentencing  process.  The rarest  of  rare  principle  has  not  been  followed uniformly or consistently. Reference in this context was  made  to Aloke  Nath  Dutta v. State  of  W.B. which in turn referred to several earlier decisions to bring home the point.

31. The  critique  in Swamy  Shraddananda was mentioned  (with  approval)  in Santosh  Kumar Satishbhushan  Bariyar  v. State  of Maharashtra while sharing this Court's “unease and sense of disquiet” in paras 109, 129 and 130 of the Report.  In fact,  in para 109 of the Report,  it  was observed that: (Bariyar case)

“109. … the balance sheet of aggravating and  mitigating  circumstances  approach invoked  on  a  case-by-case  basis  has  not worked sufficiently well so as to remove the vice  of  arbitrariness  from  our  capital sentencing  system.  It  can  be  safely  said that  the     Bachan  Singh   threshold  of ‘the     rarest  of  rare     cases’  has  been  most variedly and inconsistently  applied by the various High Courts as also this Court.”

32. It  does  appear  that  in  view  of  the  inherent multitude  of  possibilities,  the  aggravating  and mitigating circumstances approach has not been effectively implemented.

33.     Therefore, in our respectful  opinion, not only does  the  aggravating  and  mitigating circumstances approach need a fresh look but the necessity of adopting this approach also needs a fresh  look  in  light  of  the  conclusions  in     Bachan Singh  . It appears to us that even though     Bachan Singh     intended  “principled  sentencing”, sentencing  has  now really  become Judge-centric as  highlighted  in     Swamy

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Shraddananda     and     Bariyar  . This  aspect  of  the sentencing policy in Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been lost in transition.”

21. In  Shankar Kisanrao Khade  (supra), this Court went to the

extent of requesting the Law Commission of India for resolving “…

the  issue  by  examining  whether  death  penalty  is  a  deterrent

punishment or is retributive justice or serves an incapacitative goal.”

22. In this context, it may be relevant to note that the Constitution

Bench in Bachan Singh (supra) has made extensive refence to the

35th Report of Law Commission submitted in the year 1967, which

justified the retention of death penalty. Interestingly, Report No. 262

submitted in the year 2015 prepared and submitted based on the

request  made  by  this  Court  has  taken  a  different  view,  after

extensive research and with reference to the international approach.

To quote from the introduction of the Report No. 262 :-  

 “CHAPTER-I

INTRODUCTION

A. Reference from the Supreme Court

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1.1.1.  In  Shankar  kisanrao  Khade  v.  State  of  Maharashtra (‘Khade’) (2013) 5 SCC 546 the Supreme Court of India, while  dealing  with  an  appeal  on  the  issue  of  death sentence,  expressed  its  concern  with  the  lack  of  a coherent  and  consistent  purpose  and  basis  for awarding  death  and  granting  clemency.  The  Court specifically  called  for  the  intervention  of  the  Law Commission of India (‘the Commission’) on these two issues, noting that :

It seems to me that though the courts have been applying the rarest of rare principle, the executive has taken into consideration some factors not known to the courts for converting a death sentence to imprisonment for life. It is  imperative,  in  this  regard,  since  we  are dealing  with  the  lives  of  people  (both  the accused and the rape-murder victim) that the courts  lay  down  a  jurisprudential  basis  for awarding  the  death  penalty  and  when  the alternative  is  unquestionably  foreclosed  so that  the  prevailing  uncertainty  is  avoided. Death penalty  and its  execution should  not become a matter  of  uncertainty  nor  should converting  a  death  sentence  into imprisonment  for  life  become  a  matter  of chance.  Perhaps the Law Commission of India can resolve the issue by examining whether  death  penalty  is  a  deterrent punishment  or  is  retributive  justice  or serves an incapacitative goal. (Shankar Kisanrao Khade v. State of Maharashtra (2013)  5  SCC  546  -para  148  (Emphasis supplied)

It  does  not prima  facie  appear  that  two important  organs  of  the  State,  that  is,  the judiciary and the executive are treating the life  of  convicts  convicted  of  an  offence punishable  with  death  with  different standards. While the standard applied by the judiciary is that of the rarest of rare principle (however subjective or Judge- centric it may be in its application), the

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standard  applied  by  the  executive  in granting  commutation  is  not  known. Therefore,  it  could  happen  (and  might  well have  happened)  that  in  a  given  case  the Sessions  Judge,  the  High  Court  and  the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any  other  option  being  unquestionably foreclosed,  but  the  executive  has  taken  a diametrically  opposite  opinion  and  has commuted the death penalty. This may also need  to  be  considered  by  the  Law Commission of India. (2013) 5 SCC 546- para 149. (Emphasis supplied)

1.1.2. Khade was not the first recent instance of the Supreme Court referring a question concerning the death penalty to the Commission.  In  Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (‘Bariyar’) (2009) 6 SCC 498 lamenting the lack of  empirical  research on this issue, the Court observed :

We are also aware that on 18.12.2007, the United  Nations  General  Assembly  adopted Resolution 62/149 calling upon countries that retain  the  death  penalty  to  establish  a worldwide moratorium on executions with a view to abolishing the death penalty. India is, however,  one of  the 59 nations that  retain the  death  penalty.  Credible  research, perhaps by the Law Commission of India or  the  National  Human  Rights Commission  may  allow  for  an  up-do- date  and  informed  discussion  and debate  on  the  subject.  (Emphasis supplied)

1.1.3. The  present  Report  is  thus  largely  driven  by  these references of the Supreme Court and the need for re- examination  of  the  Commission’s  own recommendations on the death penalty in the light of changed circumstances.”

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23. Chapter -VII of Report No. 262   contains   the   Conclusions     

and      Recommendations. To quote :-

“A. Conclusions

7.1.1 The  death  penalty  does  not  serve  the penological  goal  of  deterrence  any  more  than  life imprisonment. Further, life imprisonment under Indian law means imprisonment for  the whole of  life  subject  to just remissions which, in many states in cases of serious crimes, are granted only after many years of imprisonment which range from 30-60 years.   

7.1.2 Retribution has an important role to play in punishment. However, it cannot be reduced to vengeance. The notion of “an eye for an eye, tooth for a tooth” has no place  in  our  constitutionally  mediated  criminal  justice system.  Capital  punishment  fails  to  achieve  any constitutionally valid penological goals.

7.1.3 In focusing on death penalty as the ultimate measure  of  justice  to  victims,  the  restorative  and rehabilitative aspects of justice are lost sight of. Reliance on the  death  penalty  diverts  attention  from other  problems ailing  the  criminal  justice  system  such  as  poor investigation,  crime  prevention  and  rights  of  victims  of crime. It is essential that the State establish effective victim compensation schemes to rehabilitate victims of crime. At the same time, it is also essential that courts use the power granted  to  them  under  the  Code  of  Criminal  Procedure, 1973  to  grant  appropriate  compensation  to  victims  in suitable  cases.  The  voices  of  victims  and  witnesses  are often  silenced  by  threats  and  other  coercive  techniques employed  by  powerful  accused  persons.  Hence  it  is essential  that  a  witness  protection  scheme  also  be established.  The  need  for  police  reforms  for  better  and more effective investigation and prosecution has also been universally felt for some time now and measures regarding the same need to be taken on a priority basis.  

7.1.4 In the last decade, the Supreme Court has on numerous occasions expressed concern about arbitrary sentencing  in  death  penalty  cases.  The Court  has  noted

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that it is difficult to distinguish cases where death penalty has been imposed from those where the alternative of life imprisonment has been applied. In the Court’s own words “extremely uneven application of Bachan Singh has given rise  to  a  state  of  uncertainty  in  capital  sentencing  law which clearly  falls  foul  of constitutional  due process  and equality  principle”. The  Court  has  also  acknowledged erroneous  imposition  of  the  death  sentence  in contravention  of  Bachan Singh  guidelines.  Therefore,  the constitutional  regulation of  capital  punishment attempted in Bachan Singh has failed to prevent death sentences from being “arbitrarily and freakishly imposed”.

7.1.5         There exists no principled method to remove such  arbitrariness  from  capital  sentencing.  A  rigid, standardization  or  categorization  of  offences  which  does not  take  into  account  the  difference  between  cases  is arbitrary  in  that  it  treats  different  cases  on  the  same footing.  Anything  less  categorical,  like  the  Bachan  Singh framework itself, has demonstrably and admittedly failed.  

7.1.6 Numerous  committee  reports  as  well  as judgments of the Supreme Court have recognized that the administration of criminal justice in the country is in deep crisis. Lack of resources, outdated modes of investigation, over-stretched  police  force,  ineffective  prosecution,  and poor  legal  aid  are  some  of  the  problems  besetting  the system.  Death  penalty  operates  within  this  context  and therefore  suffers  from the  same  structural  and  systemic impediments.  The  administration  of  capital  punishment thus remains fallible and vulnerable to misapplication. The vagaries  of  the  system  also  operate  disproportionately against  the  socially  and  economically  marginalized  who may lack the resources to effectively advocate their rights within an adversarial criminal justice system.

7.1.7 Clemency  powers  usually  come  into  play after a judicial conviction and sentencing of an offender. In exercise  of  these  clemency  powers,  the  President  and Governor  are  empowered  to  scrutinize  the  record  of  the case and differ with the judicial verdict on the point of guilt or  sentence.  Even  when  they  do  not  so  differ,  they  are empowered  to  exercise  their  clemency  powers  to ameliorate hardship, correct error, or to do complete justice

25

in a case by taking into account factors that are outside and beyond the judicial ken. They are also empowered to look at fresh evidence which was not placed before the courts. (Kehar Singh v. Union of India-(1989) 1 SCC 204 paras 7,10 & 16) Clemency powers, while exercisable for a wide range of considerations and on protean occasions, also function as the final safeguard against possibility of judicial error or miscarriage of justice. This casts a heavy responsibility on those wielding this power and necessitates a full application of  mind,  scrutiny  of  judicial  records,  and  wide-ranging inquiries in adjudicating a clemency petition, especially one from a prisoner under a judicially confirmed death sentence who is on the very verge of execution. Further, the Supreme Court in  Shatrughan Chauhan v. Union of India-  (2014) 3 SCC1  -paras  55-56)  has  recorded  various  relevant considerations which are gone into by the Home Ministry while deciding mercy petitions.  

7.1.8 The exercise of mercy powers under Article 72 and  161  have  failed  in  acting  as  the  final  safeguard against miscarriage of justice in the imposition of the death sentence. The Supreme Court has repeatedly pointed out gaps  and  illegalities  in  how  the  executive  confirms  that retaining  the  death  penalty  is  not  a  requirement  for effectively responding to insurgency, terror or violent crime.

B. Recommendation

7.2.1 The  Commission  recommends  that measures  suggested  in  para  7.1.3  above,  which  include provisions  for  police  reforms,  witness  protection  scheme and  victim  compensation  scheme  should  be  taken  up expeditiously by the government.

7.2.2 The march of  our own jurisprudence—from removing  the  requirement  of  giving  special  reasons  for imposing  life  imprisonment  instead  of  death  in  1955;  to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to   rarest of rare cases –   shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the right to life and strengthened due process requirements in the interactions

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between the state and the individual, prevailing standards of  constitutional  morality  and  human  dignity,  the Commission  feels  that  time has  come for  India  to  move towards abolition of the death penalty.  

7.2.3 Although  there  is  no  valid  penological justification  for  treating  terrorism  differently  from  other crimes,  concern  is  often  raised  that  abolition  of  death penalty for terrorism related offences and waging war, will affect national security. However, given the concerns raised by  the  law  makers,  the  commission  does  not  see  any reason to  wait  any  longer  to  take the  first  step  towards abolition of the death penalty for  all  offences other than terrorism related offences.

7.2.4 The  Commission  accordingly  recommends that  the  death  penalty  be  abolished for  all  crimes  other than terrorism related offences and waging war.”  

                (Emphasis supplied)

Having regard also to the said Report of the Law Commission that

the  constitutional  regulation  of  capital  punishment  attempted  in

Bachan Singh (supra) has failed to prevent death sentences from

being  “arbitrarily  and  freakishly  imposed”  and  that  capital

punishment  has  failed  to  achieve  any  constitutionally  valid

penological goals, we are of the view that a time has come where we

view the  need  for  death  penalty  as  a  punishment,  especially  its

purpose and practice.  

24. It  is  also  a  matter  of  anguishing  concern  as  to  how  public

discourse  on  crimes  have  an  impact  on  the  trial,  conviction  and

sentence in a case. The Court’s duty to be constitutionally correct

even when its  view is  counter-majoritarian  is  also  a  factor  which

27

should  weigh  with  the  Court  when  it  deals  with  the  collective

conscience of the people or public opinion. After all,  the society’s

perspective  is  generally  formed  by  the  emotionally  charged

narratives. Such narratives need not necessarily be legally correct,

properly informed or procedurally proper. As stated in Report No. 262

of the Law Commission …….“the Court plays a counter-majoritarian

role  in  protecting  individual  rights  against  majoritarian  impulses.

Public opinion in a given case may go against the values of rule of

law and constitutionalism by which the Court is nonetheless bound”

and as held by this Court in Santosh Bariyar (supra) public opinion

or  people’s  perception  of  a  crime  is  …….“neither  an  objective

circumstance relating to crime nor to the criminal”.  In this context,

we may also express our concern on the legality and propriety of the

people engaging in a “trial” prior to the process of trial by the court.

It has almost become a trend for the investigating agency to present

their version and create a cloud in the collective conscience of the

society regarding the crime and the criminal. This undoubtedly puts

mounting pressure on the courts at all the stages of the trial and

certainly they have a tendency to interfere with the due course of

justice.   

25. Till  the  time  death  penalty  exists  in  the  statute  books,  the

burden to  be satisfied by the Judge in  awarding this  punishment

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must be high. The irrevocable nature of the sentence and the fact

that the death row convicts are, for that period, hanging between life

and  death  are  to  be  duly  considered.  Every  death  penalty  case

before  the  court  deals  with  a  human  life  that  enjoys  certain

constitutional protections and if life is to be taken away, then the

process  must  adhere  to  the  strictest  and  highest  constitutional

standards.  Our  conscience  as  judges,  which  is  guided  by

constitutional principles, cannot allow anything less than that.

26. These appeals are hence partly allowed, commuting the death

sentence to life imprisonment.  

…...............................J.                                         [KURIAN JOSEPH]  

…...............................J.                                              [DEEPAK GUPTA]  

…...............................J.                                              [HEMANT GUPTA]  

NEW DELHI; NOVEMBER 28, 2018.  

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REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1482­1483 OF 2018 (Arising out of  SLP (Crl.) Nos.5898­5899/2014

CHHANNU LAL VERMA         …APPELLANT(S)

Versus

THE STATE OF CHHATTISGARH    …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. We have had the privilege of going through the erudite judgment

delivered by our learned brother Justice Kurian Joseph.  We are in full

agreement with all that is stated in the judgment except the following

observations in Para 23:

“Having regard also to the said Report of the Law Commission that the constitutional regulation of capital punishment attempted in Bachan Singh v. State of Punjab,  (1980)  2 SCC 684, has failed  to prevent death sentences from being “arbitrarily and freakishly imposed” and  that  capital  punishment  has failed to  achieve  any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice. It is necessary to re­examine the need for death penalty.”

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2. In our view, since the Constitution Bench in Bachan Singh v.

State of Punjab1, has upheld capital punishment, there is no need to

re­examine the same at this stage.

………………………..J. (DEEPAK GUPTA)

...……………………..J. (HEMANT GUPTA)

New Delhi November 28, 2018

1 (1980) 2 SCC 684

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