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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.410-411 OF 2012

SANTOSH KUMAR SINGH … APPELLANT

VERSUS

STATE OF MADHYA PRADESH          … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

These appeals are directed against the common impugned  

judgment dated 24th March, 2011 passed by the High Court of  

Madhya Pradesh,  Principal Seat at Jabalpur, by which High  

Court upheld the judgment of conviction and sentence for the  

offences u/s 302, 307, 394, 397 and 450 IPC, as follows:

Section Sentence imposed

For offence under Section 302  IPC (on two counts);

Sentenced to death.  

For offence under Section 307  IPC (on two counts);

Sentence  for  life  on  each  count with fine of Rs.10,000/-  each on failure of payment RI  for two years each.

For offence under Section 394  read with Section 397 (on four  counts);

RI for ten years on each count  with  fine  of  Rs.5,000/-  each  on failure of payment further  RI for one year each.

For offence under Section 450  IPC.

RI for ten years with fine of  Rs.5,000/-.  On  failure  of  payment,  further  RI  for  one  year.

2. The  learned  counsel  for  the  appellant  assailed  the  

conviction, inter alia, on the following grounds:

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(a) The trial was not fair as the appellant was not  

given an opportunity to defend by the counsel of his  

choice.

(b) The  Trial  Court  gravely  erred  in  placing  

implicit reliance on the statement of Razia Khatoon  

(PW-4) and Zeenat Parveen (PW-3) and on the evidence  

of recovery of the ornaments and other articles from  

the possession of the appellant.  

(c) The death sentence awarded by the Trial Court  

as confirmed by the High Court is not justified, as  

no case of rarest of the rare is made out.

3. The case of the prosecution is that the accused-Santosh  

Kumar Singh was known to the family of Gulam Mohd. including  

his wife, Noorjahan, son Javed Akhtar, and daughters viz. Rozi  

@ Razia and Zeenat Parveen. On 7th May, 2010, accused came to  

their house in Sector No.12, Quarter No.B-664, N.C.L. Colony,  

Singrauli at about 2 p.m. He had a chat with Noorjahan Begum  

(deceased) for about 30 minutes. In the same room besides her  

Rozi @ Razia Khatoon(PW-4) and Zeenat Parveen (PW-3) were also  

present. Javed Akhtar (deceased), son of Noorjahan Begum was  

sleeping in the bedroom. After accused left, Noorjahan Begum  

(deceased)  started  offering  Namaz,  Rozi  @  Razia  went  to  

bathroom to take bath and Zeenat Parveen was sitting in the  

outside room.  After sometime, accused came back and knocked  

the door; Zeenat Parveen opened the door and the accused came  

inside. At that time Rozi @ Razia came out of the bathroom and  

saw accused talking to Zeenat in the outside room, at that  

moment, the accused suddenly pulled out an iron hammer from  

his   T-shirt   and hit on the head of Zeenat Parween two-

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three times with hammer. Zeenat Parveen screamed and became  

unconscious. The accused, thereafter, with intention to kill  

Noorjahan Begum and Javed Akhtar also hit them with hammer on  

their  heads,  because  of  which  both  fell  down  and  became  

unconscious. After that accused hit Rozi @ Razia by the hammer  

on her head with an intention to kill her resultantly Razia’s  

head  got  fractured.  Thereafter,  the  accused  opened  the  

almirah, suitcases and boxes and looted two gold chains, one  

pair  of tops,  one pair  of bali,  one pair  of jhala,  three  

rings,  one  nose  pin  and  four  pairs  of  silver  anklets,  

artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan  

Begum.  He also took out four brass bangles from the hands of  

Noorjahan Begum. As a result of assault Noorjahan Begum died  

on  the  spot.  On  hearing  shrieks  of  Rozi  @  Razia,  Ramesh  

Satnami (PW-1), Ramawadh Pal (PW-5) and other people of the  

colony came. At the time of incident, Gulam Mohd. (PW-2) was  

on duty and on receiving the news he came to the place of  

incident  and  took  Rozi  @  Razia,  Zeenat  Parveen  and  Javed  

Akhtar to Nehru Hospital.

4. On the basis of the report, Ext.P-10, of Rozi @ Razia  

Khatoon(PW-4),  a  case  Crime  No.0/10   was  registered  under  

Section 302, 307, 450, 394 & 397 IPC at the Police Station  

Vindhya  Nagar.  After  receiving  the  news  of  the  death  of  

Noorjahan and Javed Akhtar, Shiv Kumar Dubey (PW-13) recorded  

the marg intimation of Ext.P-24 & 25 in Police Chauki Jayant,  

P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent  

to the concerned Police Station, on the basis of which Crime

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No.Ka-0-304/10  was  registered  at  P.S.  Baidhan  and  

investigation was started.  

5. Sub-Inspector,  J.S.  Paraste  (PW-12),  on  the  same  day,  

went at the spot and prepared the inquest memo of the body of  

Noorjahan Begum (Ext.P/12).The dead body of Noorjahan Begum  

was sent for postmortem examination. After conducting inquest  

proceedings in respect of the dead body of Javed Akhtar, the  

same  was  also  sent  for  postmortem  examination.  Dr.  Vinod  

Sharma(PW.16)  examined  the  injuries  of  Razia  Khatoon  and  

Zeenat  Parveen  and  found  injuries  on  their  heads.  The  

injuries, grievous in nature, were dangerous to life.  

6. Dr. V.N. Satnami (PW-10) conducted autopsy of the body of  

Noorjahan Begum. He found three injuries on her skull, skull  

bones  were  fractured.  He  submitted  his  postmortem  report-

Ext.P/19. In his opinion, death of the deceased was homicidal  

in nature. Dr. V.N. Satnami (PW-10) also conducted autopsy of  

body of Javed Akhtar and found two injuries on his head. There  

was depressed fracture of skull bone underneath the injuries.  

In his opinion, death of the deceased was homicidal in nature.  

Postmortem report of Javed Akhtar is Ext.P/20.

7. Anil Upadhyay (PW-11) was the Investigation Officer, who  

on the same night apprehended the accused from Khariya Chowk  

and recovered Rs.23,020/- from the pocket of his pants. On the  

information given by the appellant under Section 27 of the  

Indian Evidence Act, he recovered stolen articles, iron hammer  

and  blood  stained  clothes  from  the  house  of  the  accused

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situated  in  N.C.L.  Colony.  The  recovered  articles  were  

identified by Gulam Mohd (PW.2) and Razia Khatoon (PW-4).  

8. After due investigation, the chargesheet was filed and  

the case was committed for trial. The appellant denied the  

guilt and pleaded false implication but he did not adduce any  

evidence in his defence.

9.  Prosecution examined altogether 16 witnesses and produced  

a  number  of  documentary  evidence  to  prove  their  case.  The  

Trial  court  on  the  appreciation  of  the  evidence  held  the  

accused guilty and convicted and sentenced him for the offence  

as mentioned above, which was affirmed by the High Court.

10.  Dr. V.N. Satnami (PW-10), who performed the postmortem  

examination of the body of Noorjahan Begum found the following  

injuries on her body:

“(1)Reddish contusion 5 cm x 4 cm present  on right side of forehead. Red blood clot  was deposited under the skin.

(2)Lacerated wound 5 cm x 3 cm x bone deep  on middle of the forehead posteriorly with  depressed multiple fractures of underlying  bone.  

(3) Lacerated wound 4 cm x 3 cm x bone  deep on left occipito parietal region of  head with depressed multiple fractures of  underlying bones.

In  his  opinion,  death  of  deceased  Noorjahan had occurred as a result of coma  due to head injury. Death was homicidal in  nature. The postmortem examination report  (P/19) was written and signed by him.”

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On the same day, Dr. Satnami (PW-10) performed postmortem  

examination of the body of deceased Javed Akhtar and found the  

following injuries:

“(1)  Lacerated  wound  on  left  parietal  region of head 2 cm x 1 cm x bone deep  with peripheral contusions in size of 6 cm  x 5 cm. subcutaneous reddish blood clot  with  multiple  depressed  fractures  of  underlying bone.

(2) Reddish contusion on occipital region  of  head  5  cm  x  4  cm  in  size  with  subcutaneous  reddish  blood  clot  with  depressed fracture of underlying bone.

In his opinion, death of Javed Akhtar had  occurred  as  a  result  of  coma  due  to  injury. Death was homicidal in nature.”

11. From the inquest memorandums (Ext.P/6 and P/12) and the  

evidence of Sub-Inspector, J.S. Paraste (PW-12) and constable  

Raj  Bahadur  Pandey  (PW-15),  who  conducted  inquest,  it  was  

established that Noorjahan and Javed Akhtar died of homicidal  

injuries found on their bodies.

12. Anil Upadhyay (PW-11), Investigation Officer arrested the  

accused from Khariya Chowk, Main Road, P.S. Shakti Nagar in  

the presence of witnesses Mohd.Sadiq (PW-6) and Mohd. Yunus  

(PW-7) and seized money from him and prepared seizure memo-

Ext.P-15. After arrest the accused was brought to the Police  

Station-Jayant and was interrogated in front of the witnesses.  

During  interrogation  accused  gave  information  regarding  

jewellery and the hammer which was used in committing crime;  

the clothes, hammer and jewellery were seized from the house

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of  the  accused  vide  memorandum-Ext.P-13,  written  by  Anil  

Upadhyay (PW-11).  Anil Upadhyay stated that he went to the  

house  of  accused  and  seized  the  jewellery  article  from  

articles-A1 to A 24; seizure memo-Ext.P-14 was prepared. He  

had also stated that blood stained clothes and iron hammer  

were seized in the presence of witnesses vide seizure memo-

Ext.P-16.  

13. Mohd.  Sadiq  (PW.6)  and  Mohd.  Yunus  (PW-7)  are  the  

independent witnesses of the memorandum of seizure. In their  

statement they deposed that the Police arrested the accused at  

Khariya Chowk in their presence and seized about Rs. 23,000/-

from him and the accused was brought to the Police Station-

Jayant  for  inquiry.   At  the  Police  Station  the  accused  

disclosed  about  the  jewellery,  hammer  and  clothes,  on  the  

basis of which jewellery, hammer and clothes were seized. Both  

the witnesses thereby have corroborated the statement of Anil  

Upadhyay(PW-11).  During  the  cross-examination  both  the  

witnesses, PW-6 and PW-7 admitted that they visited the house  

of Gulam Mohd. There is no infirmity or contradiction in the  

statements of the two witnesses.  

14. Mohd. Ayaz Khan (PW-9) stated that on 8th July, 2010 at  

the request of the Police he conducted identification of the  

jewellery at stadium Baidhan and prior to the identification  

Police had handed over other jewellery in a sealed packet. He  

mixed it and then conducted the identification and during the  

identification  Gulam  Mohd.  and  Razia  had  identified  the

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original jewellery. After identification he had handed over  

the jewellery in a packet to the Police who were standing  

outside the stadium.  

15. Zeenat Parween(PW-3) and Razia Khatoon (PW-4), daughters  

of deceased Noorjahan and sisters of deceased Javed Akhtar are  

the  injured  eyewitnesses;  both  of  them  received  serious  

injuries at the incident.  Both the witness PW-3 and PW-4  

clearly stated that sometime before the incident, the accused  

had come to their house and he being a prior acquaintance, the  

accused had taken refreshment sitting with their mother and  

also was talking with her. From the statements of both the  

witnesses  the  facts  of  the  accused  coming  to  their  house  

before  the  incident,  taking  refreshment  with  deceased  

Noorjahan  and  talking  with  her  are  proved,  which  is  also  

corroborated from the FIR-Ext.P-10. Both these witnesses have  

also stated that in the past the accused used to come for  

tuitions and their mother used to treat the accused like her  

son and the photograph of the accused was also hanging in  

their house. From the aforesaid evidence, it is clear that the  

PW-3 and PW-4 were in a position to identify the accused, the  

accused  was  well  acquainted  with  both  PW-3  and  PW-4  since  

long. The prosecution proved beyond reasonable doubt that even  

prior to the incident the accused was known to the deceased  

and the injured witnesses PW-3 and PW-4 and on the date of  

incident also, the accused had come to their house and had  

taken refreshments and had talks.

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16. Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) in their  

statements  clearly  stated  that  initially  the  accused  left  

their house and after sometime the accused had come again to  

their house. On opening the door he had hit the hammer on the  

head of Javed Akhtar, who had come out after hearing screams  

of Zeenat Parveen and then after entering into the bedroom he  

hit  deceased  Noorjahan  on  her  head.  From  the  statement  of  

Razia Khatoon (PW-4), it is also clear that the accused after  

entering  the  store-room  had  hit  on  her  head  and  then  the  

accused  had  taken  out  the  money  and  jewellery  from  the  

almirah, suitcase, box and attaché, etc. In paragraph 7 Zeenat  

Parveen (PW-3), has also stated that she had seen the accused  

hit Javed Akhtar on his head but she could not see as to who  

hit Razia and her mother.  Such statement cannot be stated to  

be contradiction and does not adversely affect the case of the  

prosecution  in  view  of  the  deposition  made  by  Razia  

Khatoon(PW-4).

17. Similarly, from the statement of  Razia Khatoon (PW-4),  

we find that the accused after hitting Zeenat Parveen, Javed  

Akhtar and Noorjahan took away jewellery, cash amount and the  

bangles of Noorjahan and then he ran away after bolting the  

door from outside.

18. PW-4 further deposed that after the accused run away by  

bolting the door from outside she went into the balcony and  

stop  Satnami  (PW-1),  who  at  that  time  had  taken  out  his  

vehicle and was going somewhere. Then, the door was got open.

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Statements of Razia Khatoon (PW-4) about shouting from the  

balcony stopping Satnami (PW-1) and then opening of the door  

by Satnami are also proved by the statement of Ramesh Satnami  

(PW-1), who made similar statement.  

19. In view of the statements made by the injured witnesses  

Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) as corroborated  

by the postmortem report, seizure of jewellery, hammer, blood  

stained clothes (Ex.P-13)and statement of Anil Upadhyay (PW-

11), as corroborated by Sadiq (PW-6) and Yunus (PW-7), the  

Trial Court rightly held the accused guilty for the offences  

u/s 302, 307, 394 r/w  397 and 450 IPC.

20. First  ground  taken  by  the  learned  counsel  for  the  

appellant with respect to denial of opportunity to the accused  

to be defended by a counsel of his choice is incorrect as from  

the record we find that proper opportunity was given to the  

accused.  

21. The order sheets of the Trial Court dated 25th September,  

2010  shows  that  the  appellant  made  an  application  that  

appellant wanted to get the witnesses cross-examined by senior  

Advocate, Mr. Rajendra Singh Chauhan, therefore, he requested  

to defer the cross-examination of the witnesses. The Trial  

court  rejected  the  application.  On  27th September,  2010,  

counsel of the accused, Mr. Amrendra Singh, who was defending  

the  accused,  refused  to  defend  him.  The  Trial  Court  then  

appointed one Mr. G.P. Dwivedi, Advocate, as defence counsel  

on State expenses.

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22. On perusal of records it transpires that Shri Amrendra  

Singh, Advocate had filed his Vakalatnama for representing the  

appellant. On 25th September, 2010, when the case was fixed for  

evidence  though  he  was  competent  to  cross-examine  the  

witnesses but he moved the application to defer the cross-

examination of the witnesses on the ground that the accused  

wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan.  

However, neither Rajendra Singh Chauhan was present nor any  

Vakalatnama  was  filed  on  his  behalf.  On  that  day,  two  

witnesses, namely Ramesh Satnami (PW-1) and Gulam Mohd. (PW-2)  

were  examined  and  Mr.  Amrendra  Singh,  Advocate  had  cross-

examined  those  witnesses.  None  of  those  witnesses  were  

eyewitnesses; in fact one of them, Ramesh Satnami (PW-1) was  

declared hostile. On 27th September, 2010, Mr. Amrendra Singh  

refused  to  appear  on  behalf  of  the  appellant,  when  the  

appellant on asking expressed his inability to appoint any  

counsel. Since there was none to represent the accused, the  

Trial Court appointed Mr. G.P. Dwivedi, Advocate, to pursue  

the appeal. The appellant has failed to show that Mr. G.P.  

Dwivedi was not competent or was incapable of handling the  

case.  On  the  contrary  from  the  cross-examination  of  the  

witnesses  made  by  Mr.  G.P.  Dwivedi  we  find  that  he  was  

competent  to  deal  with  the  case.   Even  on  the  next  date  

neither Mr. Rajendra Singh Chauhan, Advocate appeared nor he  

filed his Vakalatnama.

23. The next question is whether death sentence awarded to  

the appellant is excessive, disproportionate on the facts and

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

termed to be a rarest of the rare case.    

24. Guidelines emerged from Bachan Singh vs. State of Punjab,  

1980 (2) SCC 684 were noticed by this Court 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  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:

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(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.”

25. In Ronny alias Ronald James Alwaris and others vs. State  

of Maharashtra, 1998 (3) SCC 625,  this Court held:

“45. These principles have been applied  in  various  judgments  of  this  Court  thereafter  and  it  is  unnecessary  to  multiply the cases here. Whether the case  is one of the rarest of the rare cases is  a question which has to be determined on  the  facts  of  each  case.  Suffice  it  to  mention  that  the  choice  of  the  death  sentence has to be made only in the rarest  of  the  rare  cases  and  that  where  culpability  of  the  accused  has  assumed  depravity or where the accused is found to  be an ardent criminal and menace to the  society and; where the crime is committed  in an organised manner and is gruesome,  cold-blooded, heinous and atrocious; where  innocent and unarmed persons are attacked  and murdered without any provocation, the  case  would  present  special  reason  for  purposes of sub-section (3) of Section 354  of the Criminal Procedure Code.”

In  Rony alias Ronald James Alwaris (supra) this Court  

noted the law laid-down by this Court 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

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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  case  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  

possibility of reform and rehabilitation, etc. the Court may  

convert the sentence into life imprisonment.

26. In  State of Maharashtra vs. Goraksha Ambaji Adsul, 2011  

(7) SCC 437,  this Court made the following observation:

“30. The principles governing the sentencing  policy in our criminal jurisprudence have more  or  less  been  consistent,  right  from  the  pronouncement  of  the  Constitution  Bench  judgment of this Court in Bachan Singh v. State  of Punjab,(2010) 8 SCC 775. Awarding punishment  is  certainly  an  onerous  function  in  the  dispensation of criminal justice. The court is  expected  to  keep  in  mind  the  facts  and  circumstances of a case, the principles of law  governing  award  of  sentence,  the  legislative  intent of special or general statute raised in  the case and the impact of awarding punishment.  These are the nuances which need to be examined  by the court with discernment and in depth.

31. The legislative  intent behind  enacting  Section  354(3)  CrPC  clearly  demonstrates  the  concern of the legislature for taking away a  human life and imposing death penalty upon the  accused. Concern for the dignity of the human  life  postulates  resistance  to  taking  a  life  through law’s instrumentalities and that ought  not  to  be  done,  save  in  the  rarest  of  rare  cases,  unless  the  alternative  option  is  unquestionably foreclosed. In exercise of its  discretion,  the  court  would  also  take  into  consideration the mitigating circumstances and  their resultant effects.

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32. The  language  of  Section  354(3)  demonstrates  the  legislative  concern  and  the  conditions which need to be satisfied prior to  imposition of death penalty. The words, “in the  case of sentence of death, the special reasons  for  such  sentence”  unambiguously  demonstrate  the  command  of  the  legislature  that  such  reasons have to be recorded for imposing the  punishment of death sentence. This is how the  concept of the rarest of rare cases has emerged  in  law.  Viewed  from  that  angle,  both  the  legislative  provisions  and  judicial  pronouncements are at ad idem in law. The death  penalty should be imposed in the rarest of rare  cases and that too for special reasons to be  recorded. To put it simply, a death sentence is  not a rule but an exception. Even the exception  must  satisfy  the  prerequisites  contemplated  under  Section  354(3)  CrPC  in  light  of  the  dictum of the Court in Bachan Singh(supra).

33. The Constitution Bench judgment of this  Court  in  Bachan  Singh  (supra) has  been  summarised in para 38 in Machhi Singh v. State  of Punjab, (1998) 1 SCC 149, and the following  guidelines have been stated while considering  the possibility of awarding sentence of death:  (Machhi Singh case(supra), SCC p. 489)

“(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 requires  to be taken into consideration along with the  circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death  sentence is an exception. … 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.”

(emphasis supplied)

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34. The judgment in  Bachan Sing(supra), did  not  only  state  the  above  guidelines  in  some  elaboration, but also specified the mitigating  circumstances which could be considered by the  Court while determining such serious issues and  they are as follows: (SCC p. 750, para 206)

“206.  …  ‘Mitigating  circumstances.—In  the  exercise of its discretion in the above cases,  the court shall take into account the following  circumstances:

(1) That the offence was committed under the  influence  of  extreme  mental  or  emotional  disturbance.

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

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

(4) The probability that the accused can be  reformed and rehabilitated.

The  State  shall  by  evidence  prove  that  the  accused does not satisfy Conditions (3) and (4)  above.

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

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

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

35. Now, we may examine certain illustrations  arising  from  the  judicial  pronouncements  of  this Court.

36. In  D.K. Basu v.  State of W.B.,(2002) 1  SCC  351,  this  Court  took  the  view  that  custodial  torture  and  consequential  death  in  custody  was  an  offence  which  fell  in  the  category  of  the  rarest  of  rare  cases.  While  specifying  the  reasons  in  support  of  such  decision, the Court awarded death penalty in  that case.

37. In Santosh Kumar Satishbhushan Bariyar v.  State of Maharashtra, (1972) 2 SCC 640, this  Court also spelt out in paras 56 to 58 that  nature, motive, impact of a crime, culpability,  quality  of  evidence,  socio-economic  circumstances, impossibility of rehabilitation  are the factors which the court may take into

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consideration while dealing with such cases. In  that case the friends of the victim had called  him to see a movie and after seeing the movie,  a ransom call was made, but with the fear of  being  caught,  they  murdered  the  victim.  The  Court felt that there was no evidence to show  that the criminals were incapable of reforming  themselves, that it was not a rarest of the  rare  case,  and  therefore,  declined  to  award  death sentence to the accused.

38. Interpersonal  circumstances  prevailing  between the deceased and the accused was also  held to be a relevant consideration in Vashram  Narshibhai Rajpara v. State of Gujarat, (1996)  8 SCC 167,   where constant nagging by family  was treated as the mitigating factor, if the  accused is mentally unbalanced and as a result  murders  the  family  members.  Similarly,  the  intensity of bitterness which prevailed and the  escalation of simmering thoughts into a thirst  for  revenge  and  retaliation  were  also  considered  to  be  a  relevant  factor  by  this  Court in different cases.

39. This  Court  in  Satishbhushan  Bariya  (supra) also  considered  various  doctrines,  principles  and  factors  which  would  be  considered  by  the  Courts  while  dealing  with  such  cases.  The  Court  discussed  in  some  elaboration the applicability of the doctrine  of rehabilitation and the doctrine of prudence.  While  considering  the  application  of  the  doctrine of rehabilitation and the extent of  weightage  to  be  given  to  the  mitigating  circumstances,  it  noticed  the  nature  of  the  evidence and the background of the accused. The  conviction in that case was entirely based upon  the statement of the approver and was a case  purely  of  circumstantial  evidence.  Thus,  applying the doctrine of prudence, it noticed  the  fact  that  the  accused  were  unemployed,  young men in search of job and they were not  criminals. In execution of a plan proposed by  the  appellant  and  accepted  by  others,  they  kidnapped a friend of theirs. The kidnapping  was done with the motive of procuring ransom  from  his  family  but  later  they  murdered  him  because  of  the  fear  of  getting  caught,  and  later cut the body into pieces and disposed it  off at different places. One of the accused had  turned  approver  and  as  already  noticed,  the  conviction  was  primarily  based  upon  the  statement of the approver.”

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“41. The  above  principle,  as  supported  by  case illustrations, clearly depicts the various  precepts  which  would  govern  the  exercise  of  judicial discretion by the courts within the  parameters spelt out under Section 354(3) CrPC.  Awarding of death sentence amounts to taking  away the life of an individual, which is the  most valuable right available, whether viewed  from the constitutional point of view or from  the human rights point of view. The condition  of providing special reasons for awarding death  penalty is not to be construed linguistically  but it is to satisfy the basic features of a  reasoning supporting and making award of death  penalty  unquestionable.  The  circumstances  and  the manner of committing the crime should be  such that it pricks the judicial conscience of  the  court  to  the  extent  that  the  only  and  inevitable  conclusion  should  be  awarding  of  death penalty.”

27. This  Court  in  Ramnaresh  and  others  vs.  State  of  

Chattisgarh, 2012 (4) SCC 257, noticed the aggravating and  

mitigating circumstances with respect to a crime 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

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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.

(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.

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(12) When there is a cold-blooded murder  without provocation.

(13) The crime is committed so brutally  that  it  pricks  or  shocks  not  only  the  judicial  conscience  but  even  the  conscience of the society.

Mitigating circumstances (1) The manner and circumstances in and  

under which the offence was committed, for  example,  extreme  mental  or  emotional  disturbance  or  extreme  provocation  in  contradistinction to all these situations  in normal course.

(2) The age of the accused is a relevant  consideration  but  not  a  determinative  factor by itself.

(3) The chances of the accused of not  indulging in commission of the crime again  and the probability of the accused being  reformed and rehabilitated.

(4) The condition of the accused shows  that  he  was  mentally  defective  and  the  defect impaired his capacity to appreciate  the circumstances of his criminal conduct.

(5) The circumstances which, in normal  course  of  life,  would  render  such  a  behaviour  possible  and  could  have  the  effect of giving rise to mental imbalance  in  that  given  situation  like  persistent  harassment or, in fact, leading to such a  peak of human behaviour that, in the facts  and circumstances of the case, the accused  believed that he was morally justified in  committing the offence.

(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.

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While  determining  the  questions  relating  to  sentencing  

policy, the Court laid down the Principles at paragraph 77  

which reads as follows:

“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.”

28. Recently, this Court in Shankar Kisanrao Khade vs. State  

of Maharashtra, 2013 (5) SCC 546, dealing with a case of death  

sentence, 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

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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.”

29. In the present case the appellant is an educated person,  

he  was  about  26  years  old  at  the  time  of  committing  the  

offence.  The  accused  was  a  tutor  in  the  family  of  the  

deceased-Noorjahan. He was in acquaintance with the deceased  

as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4).  

There is nothing specific to suggest the motive for committing  

the  crime  except  the  articles  and  cash  taken  away  by  the  

accused.  It  is  not  the  case  of  the  prosecution  that  the  

appellant cannot be reformed or that the accused is a social  

menace.  Apart  from  the  incident  in  question  there  is  no  

criminal  antecedent  of  the  appellant.  It  is  true  that  the  

accused has committed a heinous crime, but it cannot be held

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with certainty that this case falls in the “rarest of the rare  

category”. On appreciation of evidence on record and keeping  

in mind the facts and circumstances of the case, we are of the  

view that sentence of death penalty would be extensive and  

unduly harsh.  

30. Accordingly, we commute the death sentence of appellant  

to  life  imprisonment.  The  conviction  and  rest  part  of  the  

sentence are affirmed. Appeals are partly allowed.  

………………………………………………J.               (H.L. DATTU)

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

………………………………………………J.                               (M.Y. EQBAL)

NEW DELHI,

JULY 3, 2014.