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                            Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SLP     (Crl.)     No.6467/2012(Crl.M.P.No.      17082/2012)   

State of U.P.  …Appellant

Versus

Sanjay Kumar …Respondent

O     R     D     E     R   

1. Delay condoned.   

2. This petition has been filed against the impugned judgment  

and Order dated 8.2.2012 passed by the High Court of Judicature at  

Allahabad in Criminal Appeal (Capital Case) No. 7760 of 2009, by  

which the High Court has commuted the death sentence awarded to  

the respondent by the Sessions Court, in life imprisonment upon  

recording its conclusion that it was not among the `rarest of rare  

cases’, in which death penalty could be awarded.  

3. Facts and circumstances giving rise to this petition are as  

follows:

A. The respondent was engaged in the work of whitewash in the  

house of one Shyam Ji Sharma, resident of Tulsi Vihar Colony,

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Varanasi and his very close relative Divya Rani was staying with  

him, as she was appearing for her Intermediate examination. The  

complainant Shyam Ji Sharma alongwith his wife Rajni Sharma had  

gone to the market on 24.2.2007 to purchase goods while Divya  

Rani (deceased) was supervising the said work. When the  

complainant came back with his wife they found the door of the  

house open and saw that the respondent had killed Divya Rani and  

was now trying to conceal her body in a tin box after throwing out  

the clothes contained in it.  There was blood on Divya’s face.  The  

complainant and his wife tried to catch hold of the respondent but he  

pushed them aside and ran away.  They immediately lodged a First  

Information Report  and Divya’s body was henceforth sent for post-

mortem examination.  

B. In addition to several simple injuries on her body, a ligature  

mark measuring 29 cm in length, 1/2-1 cm in thickness at places all  

around the neck, with a pattern of pressure points 3 cm below the  

sternal notch and 3 cm below both the ears, was found.  The doctor  

also found that there was laceration of the vagina and the vaginal  

vault, and rupturing of hymen was also observed. Asphyxia as a  

result of strangulation contributed to her death. The doctor also  

opined that the victim had been subjected to sexual assault.

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C.   On the basis of the post-mortem report, the charges under  

Sections 376 and 302 of  Indian Penal Code, 1860 (hereinafter called  

‘IPC’), were framed against the respondent, to which he pleaded not  

guilty and claimed trial.  

D. After conclusion of the trial and particularly placing reliance  

upon the confessional statement made by the respondent under  

Section 164 of  the Code of Criminal Procedure, 1973 (hereinafter  

called ‘Cr.P.C.), the trial Court vide its judgment and order dated  

5.12.2009 in Sessions Trial No. 245 of 2007 convicted the  

respondent of the said charges and awarded him death sentence.  The  

reason for giving death sentence had been recorded stating that the  

deceased was 18 years of age and the offence committed by the  

respondent would have a very negative effect on society. The  

offence committed by the respondent was in fact rarest of the rare.  

The confessional statement recorded by the Judicial Magistrate was  

worth placing reliance upon, wherein the respondent had admitted  

his guilt and, therefore, taking into consideration all the facts and  

circumstances of the case, the Court reached the conclusion that it  

was a case under the category of ‘rarest of rare cases’.  Therefore,  

death penalty was awarded to the respondent alongwith a fine of  

Rs.10,000/-  in default of which,  he would have to suffer further RI  

for 4 months.  For the charge of rape, he was awarded life  

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imprisonment, with a fine of Rs.10,000/- and in default, he would  

have to suffer further RI for 4 years.    

E. Being aggrieved, the respondent filed an appeal and while  

considering his appeal alongwith the Death Reference made to the  

High Court, the High Court after appreciating the entire evidence,  

came to the conclusion that upon consideration of the totality of  

circumstances, the charges stood fully proved against the respondent.  

However, the case did not fall within the category of ‘rarest of rare  

cases’ where the option of awarding a sentence of imprisonment  for  

life was unquestionably foreclosed.  

Hence, this petition.  

4. Learned counsel for the State has submitted that the High  

Court committed an error in not accepting the capital reference and  

in the facts and circumstances of the case, particularly, where a girl  

of 18 years of age has been raped and murdered, in order to ensure  

some deterrent effect, the High Court ought to have affirmed the  

death sentence, particularly, when the respondent himself has  

admitted his guilt on both charges, while making a confessional  

statement under Section 164 Cr.P.C. before the Judicial Magistrate.  

5. It has been submitted at the bar that this Court has given  

different terms as minimum sentence to be served by convicts and,  

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thus, the Court failed to ensure consistency in sentence and in laying  

down an effective and elaborate sentencing policy.   

In  Neel Kumar @ Anil Kumar v. State of  Haryana, (2012)  

5 SCC 766; and Sandeep v. State of U.P. (2012) 6 SCC 107 while  

commuting the awarded death sentence into a sentence of life  

imprisonment, it has been directed by this Court that convicts therein  

must serve a minimum of 30 years in jail without remissions before  

the consideration of their respective cases for premature release.  

It has been further submitted that the aforesaid judgments  

reveal that there is no definite yardstick for the purpose of  

sentencing and that it varies from court to court to award the term of  

sentence.  If the court awards a sentence of a particular term, subject  

to the clemency power of the sovereign or subject to premature  

release under Section 433-A Cr.P.C., then the period of sentence so  

fixed by the court remains meaningless.   

Questions arise as to whether the direction of the court, that  

the convict has to serve a particular period of sentence before his  

case for premature release is considered, infringes upon the  

clemency or other statutory powers of the executive; whether such  

an order can be said to have been passed under Article 142 of the  

Constitution; and whether the court can issue such direction in  

exercise of the power vested in it under Article 142 of the  

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Constitution. Whether this kind of sentence awarded by the court, if  

made subject to the clemency power  and other statutory powers  

could be held merely to be a recommendation, as a result of which,  

while exercising such a power, the executive may bear in mind the  

opinion expressed by the court and take a decision, accordingly.    

6. The High Court after placing reliance upon the judgments of  

this Court in Ramraj v. State of Chhattisgarh, AIR 2010 SC 420;  

Mulla & Anr. v. State of Uttar Pradesh, AIR 2010 SC 942; and  

Rameshbhai Chandubhai Rathod  v. State of Gujarat, AIR 2011  

SC 803; passed the order of sentence as under:  

“We think that in the present case the ends of  justice would be met if the sentence of death  awarded to the appellant be substituted with a  sentence of imprisonment for the whole of the  remaining natural life of the appellant, subject  further, to the condition that the prisoner could be  eligible to any commutation and remissions that  may be granted by the President and the Governor  under Articles 72 and 161 of the Constitution of  India or of the State Government under Section  433-A of the Code of Criminal Procedure, 1973  for good and sufficient reasons”.  

7. We have gone through the impugned judgments and the  

evidence produced by the petitioner-State. We are of the view that  

the High Court is correct to the extent, that the facts of the case did  

not warrant death sentence.

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8. Undoubtedly, a comprehensive sentencing policy is required  

to be laid down by the Court, however, the same would be a  

herculean task as it is impossible to foresee all possible  

circumstances which may take place in the future.     

In Swamy Shraddananda @ Murali Manohar Mishra v.  

State of Karnataka, AIR 2008 SC 3040, after considering various  

provisions of various statutes, a three-Judge Bench observed as  

under:

“The matter may be looked at from a slightly  different angle. The issue of sentencing has two  aspects. A sentence may be excessive and unduly  harsh or it may be highly disproportionately  inadequate. When an appellant comes to this court  carrying a death sentence awarded by the trial  court and confirmed by the High Court, this Court  may find, as in the present appeal, that the case  just falls short of the rarest of the rare category  and may feel somewhat reluctant in endorsing the  death sentence. But at the same time, having  regard to the nature of the crime, the Court may  strongly feel that a sentence of life imprisonment  that subject to remission normally works out to a  term of 14 years would be grossly  disproportionate and inadequate. What then the  Court should do? If the Court's option is limited  only to two punishments, one a sentence of  imprisonment, for all intents and purposes, of not  more than 14 years and the other death, the court  may feel tempted and find itself nudged into  endorsing the death penalty. Such a course would  indeed be disastrous. A far more just, reasonable  and proper course would be to expand the options  and to take over what, as a matter of fact, lawfully  belongs to the court, i.e., the vast hiatus between  14 years' imprisonment and death. It needs to be  

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emphasized that the Court would take recourse to  the expanded option primarily because in the facts  of the case, the sentence of 14 years' imprisonment  would amount to no punishment at all.       In light of the discussions made above we are  clearly of the view that there is a good and strong  basis for the Court to substitute a death sentence  by life imprisonment or by a term in excess of  fourteen years and further to direct that the  convict must not be released from the prison for  the rest of his life or for the actual term as  specified in the order, as the case may be.      …….We accordingly substitute the death  sentence given to the appellant by the trial court  and confirmed by the High Court by imprisonment  for life and direct that he shall not be released  from prison till the rest of his life.”

(Emphasis added)

The Court further clarified that while passing an order of  

punishment, the Court deals with the powers of the State under the  

provisions of the Cr.P.C., the Prisons Acts and the Rules framed by  

the States, and not with clemency power, that is, the power of the  

Sovereign in this respect.

  9. Another three-Judge Bench of this Court in Rameshbhai  

Chandubhai Rathod (supra)  passed a similar order, wherein, the  

Bench made it clear, that the sentence of natural life would be  

subject to the power of clemency and powers under Section 433-A  

Cr.P.C.

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10. The concept of Separation of Powers is inherent in the polity  

of the Constitution.  This doctrine creates a system of checks and  

balances by reason of which, powers are so distributed that none of  

the three organs set up can become so pre-dominant, so as to disable  

the others from exercising and discharging the powers and functions  

entrusted to them.  The separation of powers between the legislature,  

the executive and the judiciary constitutes one of  the basic features  

of the Constitution.  There is distinct and rigid separation of powers  

under the Indian Constitution. The scrupulously discharged duties of  

all guardians of the Constitution include among them, the duty not to  

transgress the limitations of their own constitutionally circumscribed  

powers by trespassing into what falls  properly within the domain of  

other constitutional organs. (Vide: His Holiness Kesavananda  

Bharati Sripadagalvaru v. State of Kerala & Anr., AIR 1973 SC  

1461;  Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr. ,  

AIR 1975 SC 2299; and State of West Bengal & Ors. v. The  

Committee for Protection of Democratic Rights, West Bengal  

and Ors., AIR 2010 SC 1476).

11. In Jayawant Dattatraya Suryarao v. State of  

Maharashtra, (2001) 10 SCC 109,  this Court after considering a  

large number of judgments, having conjoint reading of Sections 433  

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and 433-A Cr.P.C., and taking into account the facts of the case  

particularly that the appellant therein had committed a heinous act of  

terrorism and brutal murder of two police constables who were on  

duty to guard the person to whom they wanted to kill held that they  

could not be awarded death sentence and thus, commuted the same  

to imprisonment for life but directed that the accused therein would  

not be entitled to any commutation or premature release under  

Section 433-A Cr.P.C., Prisons Act, Jail Manual or any other Statute  

and the Rules made for the purpose of commutation and remissions.  

12. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099, after  

placing reliance on a very large number of Constitution Bench  

judgments of this Court, the Court came to the conclusion that the  

Court cannot exercise its power under Article 142 of the Constitution  

for passing an order or granting a relief, which is totally inconsistent  

with, or which goes against the substantive or statutory provisions  

pertaining to the case.  

13. The purpose of conferring the power of clemency has been  

explained by Chief Justice Taft in Ex p. Grossman, (1924) 69 L.ed.  

527 observing as under:  

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“The administration of justice by the courts is not  necessarily always wise or certainly considerate of  circumstances which may properly mitigate guilt. To  afford a remedy, it has always been thought essential  in popular governments as well as monarchies, to  vest in some other authority than the courts power to  avoid particular judgments. It is a check entrusted to  the Executive for special cases. To exercise it to the  extent of destroying the deterrent effect of judicial  punishment would be to pervert it; but whoever is to  make it useful must have full discretion to exercise  it.”   

14. In State of Haryana v. Jagdish, AIR 2010 SC 1690, this  

Court dealt with the issue of clemency power elaborately and held  

that such powers are unfettered and absolute. Where the State  

authority frame rules under Article 161 of the Constitution, the case  

of the convict is required to be considered under the said rules. Even  

if the life convict does not satisfy the requirements of the remission  

rules or of the short sentencing scheme, there can be no prohibition  

for the President or the Governor of the State, as the case may be, to  

exercise the power of clemency vested in them, under the provisions  

of Articles 72 and 161 of the Constitution.    Therefore, this Court  

while passing such orders never meant that clemency power could  

not be exercised by the President/Governor.  The order of the Court  

in such an eventuality always remains subject to the said clemency  

powers.  

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15. Sentencing Policy is a way to guide judicial discretion in  

accomplishing particular sentencing. Generally, two criteria, that is,  

the seriousness of the crime and the criminal history of the accused,  

are used to prescribe punishment. By introducing more uniformity  

and consistency into the sentencing process, the objective of the  

policy, is to make it easier to predict sentencing outcomes.  

Sentencing policies are needed to address concerns in relation to  

unfettered judicial discretion and lack of uniform and equal  

treatment of similarly situated convicts. The principle of  

proportionality, as followed in various judgements of this Court,  

prescribes that, the punishments should reflect the gravity of the  

offence and also the criminal background of the convict.  Thus the  

graver the offence and the longer the criminal record, the more  

severe is the punishment to be awarded. By laying emphasis on  

individualised justice, and shaping the result of the crime to the  

circumstances of the offender and the needs of the victim and  

community, restorative justice eschews uniformity of sentencing.  

Undue sympathy to impose inadequate sentence would do more  

harm to the public system to undermine the public confidence in the  

efficacy of law and society could not long endure under serious  

threats.

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Ultimately, it becomes the duty of the Courts to award proper  

sentence, having regard to the nature of the offence and the manner  

in which it was executed or committed etc. The Courts should  

impose a punishment befitting the crime so that the Courts are able  

to accurately reflect public abhorrence of the crime. It is the nature  

and gravity of the crime, and not the criminal, which are germane for  

consideration of appropriate punishment in a criminal trial.  

Imposition of sentence without considering its effect on social order  

in many cases may be in reality, a futile exercise. The survival of an  

orderly society demands the extinction of the life of a person who is  

proved to be a menace to social order and security.  Thus, the Courts  

for the purpose of deciding just and appropriate sentence to be  

awarded for an offence, have to delicately balance the aggravating  

and mitigating factors and circumstances in which a crime has been  

committed, in a dispassionate manner. In the absence of any  

foolproof formula which may provide a basis for reasonable criteria  

to correctly assess various circumstances germane for  

the consideration of gravity of crime, discretionary judgment, in  

relation to the facts of each case, is the only way in which such  

judgment may be equitably distinguished.  The Court has primarily  

dissected the principles into two different compartments - one being,  

the 'aggravating circumstances' and the other being, the 'mitigating  

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circumstance’. To balance the two is the primary duty of the Court.  

The principle of proportionality between the crime and the  

punishment is the principle of 'just deserts' that serves as the  

foundation of every criminal sentence that is justifiable. In other  

words, the 'doctrine of proportionality' has valuable application to  

the sentencing policy under Indian criminal jurisprudence. While  

determining the quantum of punishment the court always records  

sufficient reasons.  (Vide: Sevaka Perumal etc. v. State of Tamil  

Nadu AIR 1991 SC 1463; Ravji v. State of Rajasthan, AIR 1996  

SC 787; State of Madhya Pradesh v. Ghanshyam Singh AIR 2003  

SC 3191; Dhananjay Chatterjee alias Dhana v. State of W.B. AIR  

2004 SC 3454; Rajendra Pralhadrao Wasnik v. The State of  

Maharashtra, AIR 2012 SC 1377; and Brajendra Singh v. State of  

Madhya Pradesh, AIR 2012 SC 1552).

16. In view of the above, we reach the inescapable conclusion  

that the submissions advanced by learned counsel for the State are  

unfounded.  The aforesaid judgments make it crystal clear that this  

Court has merely found out the via media, where considering the  

facts and circumstances of a particular case, by way of which it has  

come to the conclusion that it was not the `rarest of rare cases’,  

warranting death penalty, but a sentence of 14 years or 20 years, as  

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referred to in the guidelines laid down by the States would be totally  

inadequate. Life imprisonment cannot be equivalent to imprisonment  

for 14 years or 20 years, rather it always meant as the whole natural  

life.  This Court has always clarified that the punishment so awarded  

would be subject to any order passed in exercise of the clemency  

powers of the President of India or Governor of State, as the case  

may be. Pardons, reprieves and remissions are granted in exercise of  

prerogative power.  There is no scope of judicial review of such  

orders except on very limited grounds for example non-application  

of mind while passing the order; non-consideration of relevant  

material; or if the order suffers  from arbitrariness.  The power to  

grant pardons and to commute sentences is coupled with a duty to  

exercise  the same fairly and reasonably. Administration of justice  

cannot be perverted by executive or political pressure. Of course,  

adoption of uniform standards may not be possible while exercising  

the power of pardon.  Thus, such orders do not interfere with the  

sovereign power of the State.  More so, not being in contravention of  

any statutory or constitutional provision, the orders, even if treated to  

have been passed under Article 142 of the Constitution do not  

deserve to be labelled as unwarranted.  The aforesaid orders have  

been passed considering the gravity of the offences in those cases  

that the accused would not be entitled to be considered for premature  

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release under the guidelines issued for that purpose i.e. under Jail  

Manual etc.  or even under Section 433-A Cr.P.C.   

With these observations, the Petition is dismissed.    

                                          …….……………......................J.                                   (Dr. B.S. CHAUHAN)

............………............................J.          (SWATANTER KUMAR)  New Delhi, August 21, 2012

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