REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 490-491 OF 2011
SANGEET & ANR. …..Appellants
VERSUS
STATE OF HARYANA …..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. In these appeals, this Court issued notice limited to the question of
the sentence awarded to the appellants. They were awarded the death
penalty, which was confirmed by the High Court. In our opinion, the
appellants in these appeals against the order of the High Court should be
awarded a life sentence, subject to the faithful implementation of the
provisions of the Code of Criminal Code, 1973.
The facts:
2. In view of the limited notice issued in these appeals, it is not
necessary to detail the facts. However, it may be mentioned that as many as
- six persons (including the appellants) were accused of various offences
under the Indian Penal Code (for short the IPC) and the Arms Act, 1959.
They were convicted by the Additional Sessions Judge, Rohtak by his
judgment and order dated 13th November, 2009 in Sessions Case No. 47 of
2004/2009 of the offence of murder (Section 302 of the IPC), attempt to
murder (Section 307 of the IPC), rioting, armed with a deadly weapon
(Section 148 of the IPC), house trespass in order to commit an offence
punishable with death (Section 449 of the IPC) read with Section 149 of the
IPC (every member of an unlawful assembly is guilty of an offence committed
in prosecution of a common object).
- Five of the accused were convicted of
an offence under Section 25(1-B) of the Arms Act, 1959.
- Except the
appellants, all of them were given a sentence of rigorous imprisonment for
life and payment of fine.
- The appellants, as mentioned above, were
sentenced to death.
3. The Trial Judge found
- the accused guilty of having committed the
murder of Ranbir, Bimla (his wife), Seema (wife of Amardeep) and Rahul the
three-year-old child of Amardeep and Seema and grandson of Ranbir.
4. The Trial Judge found that
- accused Ram Phal believed that Amardeep’s
family had performed some black magic which led to the death of his (Ram
Phal) son Ved Pal soon after his marriage.
- Apparently, with a view to take
revenge, Ram Phal and the other accused committed the crimes
aforementioned.
5. The Trial Judge found that
- the bodies of Ranbir, Bimla (his wife) and
Seema (wife of Amardeep) had bullet injuries and other injuries inflicted
by a sharp-edged weapon called ‘Kukri’.
- The body of Seema was also burnt
from below the waist.
- As far as Rahul (a three-year-old boy) is concerned
the upper portion of his head was blown off by a firearm injury.
- Amardeep
also had a grievous injury but he survived and was the star witness for the
prosecution.
On these broad facts the Trial Judge convicted the appellants
and others.
6. Thereafter, the
- Trial Judge heard the convicts under Section 235(2)
of the Code of Criminal Procedure on the question of sentence.
- In his brief
statement, appellant Sandeep stated that he is married and has a five-year-
old daughter and aged parents to look after.
- Appellant Narender also gave
a brief a brief statement that he is not married and has aged parents to
look after.
The Trial Judge considered the judgments of this Court, inter
alia, in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh
and Ors. v. State of Punjab, (1983) 3 SCC 470. Thereafter, by his order
dated 18th November, 2009 the Trial Judge handed down the sentences
mentioned above.
7. The Trial Judge found that
- the crime committed by the appellants was
brutal in nature.
- As far as Narender is concerned he had blown off the
upper portion of the head of three-year-old Rahul, son of Amardeep by the
use of a firearm.
- As far as Sandeep is concerned, even after giving a gun
shot injury on the head of Seema he poured kerosene oil on her and set her
ablaze.
- Taking note of the fact that the entire family of Ranbir (except
Amardeep) was wiped out by the accused in a brutal and merciless manner,
the Trial Judge held that the crime committed by them fell in the category
of the rarest of rare cases, inviting the death penalty.
The death sentence
awarded to the appellants was however, subject to confirmation by the
Punjab & Haryana High Court to which a reference was separately made.
8. The Punjab & Haryana High Court by its Judgment and Order dated 21st
July, 2010 in Murder Reference No. 7 of 2009 confirmed the death sentence.
9. The High Court opined that
- the crime was committed in a pre-
meditated, cold-blooded, cruel and diabolic manner while the victims were
sleeping.
- The convicts were armed with deadly weapons like firearms and
kukris etc. which they used unhesitatingly and indiscriminately to commit
murders and cause a life threatening injury to Amardeep.
- It was held that
Seema’s body was burnt by Sandeep from below the waist with a view to
destroy evidence of her having been subjected to sexual harassment and
rape.
- Narender was found to be a professional killer. It was held that the
act of the appellants fell in the category of rarest of rare cases and as
such a death penalty was warranted.
10. We heard the learned Legal Aid Counsel on behalf of the appellants
and record our appreciation for the keen interest taken by him in the case
and the efforts put in. We also heard learned counsel for the State and
have gone through the record as well as the statement given by the
appellants under Section 235 (2) of the Criminal Procedure Code. We have
given our anxious consideration to the question of sentence to be awarded
to the appellants.
Leading judgments on the death penalty:
11. Any discussion on the subject of death penalty should actually
commence with the Constitution Bench decision in Bachan Singh. However, it
may be more appropriate to travel back in time to Jagmohan Singh v. State
of U.P. (1973) 1 SCC 20 for the limited purpose of indicating an important
legislative change that had taken place in the meanwhile.
12. Jagmohan Singh was decided when the Code of Criminal Procedure, 1898
(for short the old Code) was in force. Section 367(5) of the old Code
provided that if an accused person is convicted of an offence punishable
with death, and he is sentenced to a punishment other than death, the Court
was required to state the reason why a sentence of death was not passed.
Section 367(5) of the old Code reads as follows:-
“If the accused is convicted of an offence punishable with death, and
the court sentences him to any punishment other than death, the court
shall in its judgment state the reason why sentence of death was not
passed.”
13. Bachan Singh was, however, heard and decided when the Code of
Criminal Procedure, 1973 (for short the Cr.P.C) had come into force with
effect from 1st April, 1974. The Cr.P.C contained Section 354(3), which
provided that for an offence punishable with death, the first option for
punishment would be imprisonment for life (or imprisonment for a term of
years) and the second option would be a sentence of death.
Section 354(3)
of the Cr.P.C reads as follows:-
“When the conviction is for an offence punishable with death or, in
the alternative, with imprisonment for life or imprisonment for a term
of years, the judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the special reasons
for such sentence.”
14. The Cr.P.C. effectively reversed the position as it existed under the
old Code and also placed a requirement that if a sentence of death is
awarded, the Court should record special reasons for awarding that
sentence.
15. In Bachan Singh, two issues came up for consideration before the
Constitution Bench. The first issue related to the constitutional validity
of the death penalty for murder as provided in Section 302 of the IPC and
the second related to “the sentencing procedure embodied in sub-section (3)
of Section 354 of the Code of Criminal Procedure, 1973”.
16. While answering the above issues, the following questions were framed
for consideration:-
“(i) Whether death penalty provided for the offence of murder in
Section 302 of the Penal Code is unconstitutional.
(ii) If the answer to the foregoing question be in the negative,
whether the sentencing procedure provided in Section 354(3) of the
Code of Criminal Procedure, 1973 (Act 2 of 1974) is unconstitutional
on the ground that it invests the court with unguided and untrammelled
discretion and allows death sentence to be arbitrarily or freakishly
imposed on a person found guilty of murder or any other capital
offence punishable under the Indian Penal Code with death or, in the
alternative, with imprisonment for life.”
17. Insofar as the first question is concerned, the Constitution Bench
answered it in the negative. As regards the second question, the
Constitution Bench referred to and considered Jagmohan Singh and culled out
several propositions from that decision. The Constitution Bench did not
disagree with any of the propositions, except to the extent of tweaking
proposition (iv)(a) and proposition (v)(b) in view of the changed
legislative policy. For the present, we are concerned only with these two
propositions. However for convenience, all the propositions culled out from
Jagmohan Singh are reproduced below:-
“(i) The general legislative policy that underlines the structure of
our criminal law, principally contained in the Indian Penal Code and
the Criminal Procedure Code, is to define an offence with sufficient
clarity and to prescribe only the maximum punishment therefor, and to
allow a very wide discretion to the Judge in the matter of fixing the
degree of punishment.
With the solitary exception of Section 303, the same policy
permeates Section 302 and some other sections of the Penal Code, where
the maximum punishment is the death penalty.
(ii)-(a) No exhaustive enumeration of aggravating or mitigating
circumstances which should be considered when sentencing an offender,
is possible. “The infinite variety of cases and facets to each case
would make general standards either meaningless ‘boiler plate’ or a
statement of the obvious that no Jury (Judge) would need.” (referred
to McGoutha v. California, (1971) 402 US 183).
(b) The impossibility of laying down standards is at the very core of
the criminal law as administered in India which invests the Judges
with a very wide discretion in the matter of fixing the degree of
punishment.
(iii) The view taken by the plurality in Furman v. Georgia (1972) 408
US 238 decided by the Supreme Court of the United States, to the
effect, that a law which gives uncontrolled and unguided discretion to
the Jury (or the Judge) to choose arbitrarily between a sentence of
death and imprisonment for a capital offence, violates the Eighth
Amendment, is not applicable in India. We do not have in our
Constitution any provision like the Eighth Amendment, nor are we at
liberty to apply the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America are accustomed to
apply “the due process” clause. There are grave doubts about the
expediency of transplanting western experience in our country. Social
conditions are different and so also the general intellectual level.
Arguments which would be valid in respect of one area of the world may
not hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence is to be exercised
by the Judge judicially, after balancing all the aggravating and
mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The
exercise of judicial discretion on well recognised principles is, in
the final analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there
would be at all any discrimination, since crime as crime may appear to
be superficially the same but the facts and circumstances of a crime
are widely different. Thus considered, the provision in Section 302,
Penal Code is not violative of Article 14 of the Constitution on the
ground that it confers on the Judges an unguided and uncontrolled
discretion in the matter of awarding capital punishment or
imprisonment for life.
(v)(a) Relevant facts and circumstances impinging on the nature and
circumstances of the crime can be brought before the court at the
preconviction stage, notwithstanding the fact that no formal procedure
for producing evidence regarding such facts and circumstances had been
specifically provided. Where counsel addresses the court with regard
to the character and standing of the accused, they are duly considered
by the court unless there is something in the evidence itself which
belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose
either of the two alternative sentences provided in Section 302 Penal
Code, “the court is principally concerned with the facts and
circumstances whether aggravating or mitigating, which are connected
with the particular crime under inquiry. All such facts and
circumstances are capable of being proved in accordance with the
provisions of the Indian Evidence Act in a trial regulated by the
CrPC. The trial does not come to an end until all the relevant facts
are proved and the counsel on both sides have an opportunity to
address the court. The only thing that remains is for the Judge to
decide on the guilt and punishment and that is what Sections 306(2)
and 309(2), CrPC purport to provide for. These provisions are part of
the procedure established by law and unless it is shown that they are
invalid for any other reasons they must be regarded as valid. No
reasons are offered to show that they are constitutionally invalid and
hence the death sentence imposed after trial in accordance with the
procedure established by law is not unconstitutional under Article
21”.”(emphasis added in the judgment).
18. It will be seen from proposition (iv)(a) that Jagmohan Singh laid
down that discretion in the matter of sentencing is to be exercised by the
judge after balancing all the aggravating and mitigating circumstances “of
the crime”.
19. Jagmohan Singh also laid down in proposition (v)(b) that while
choosing between the two alternative sentences provided in Section 302 of
the IPC (sentence of death and sentence of life imprisonment), the Court is
principally concerned with the aggravating or mitigating circumstances
connected with the “particular crime under inquiry”.
20. Since the focus was on the crime, we call this, for convenience,
Phase I of an evolving sentencing policy.
21. As mentioned above, while accepting all other propositions laid down
in Jagmohan Singh, the Constitution Bench in Bachan Singh did not fully
accept proposition (iv)(a) and (v)(b). This is explained in paragraph 161
to paragraph 166 of the Report where it is specifically mentioned that
these two propositions need to be “adjusted and attuned” to the shift in
the legislative policy.
22. The Constitution Bench observed that under the old Code, both the
sentence of death and the sentence of imprisonment for life provided under
Section 302 of the IPC could be imposed after weighing the aggravating and
mitigating circumstances of the particular case. However, in view of
Section 354(3) of the Cr.P.C. a punishment of imprisonment for life should
normally be imposed under Section 302 of the IPC but a sentence of death
could be imposed as an exception. Additionally, as per the legislative
requirement if a sentence of death is to be awarded, special reasons need
to be recorded. In a sense, the legislative policy now virtually obviated
the necessity of balancing the aggravating and mitigating circumstances of
the crime for the award of punishment in respect of an offence of murder
(although “aggravating and mitigating circumstances” are repeatedly
referred to in the judgment, including as “relevant circumstances” that
must be given “great weight”). Therefore, the Constitution Bench (after a
discussion in paragraphs 161 and 162 of the Report) “adjusted and attuned”
proposition (iv)(a) by deleting the reference to “balancing all the
aggravating and mitigating circumstances of the crime” to read as follows:-
“(a) The normal rule is that the offence of murder shall be punished
with the sentence of life imprisonment. The court can depart from that
rule and impose the sentence of death only if there are special
reasons for doing so. Such reasons must be recorded in writing before
imposing the death sentence.”
23. The Constitution Bench also did not fully accept the postulate in
proposition (v)(b) that while making the choice of sentence, including the
sentence under Section 302 of the IPC, the Court should be principally
concerned with the circumstances connected with the particular crime under
inquiry (paragraph 163 of the Report). The Constitution Bench laid down
that not only the relevant circumstances of the crime should be factored
in, but due consideration must also given to the circumstances of the
criminal. Consequently, the Constitution Bench re-formulated proposition
(v)(b) to read as follows: -
“(b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 of the Penal Code, the court must
have regard to every relevant circumstance relating to the crime as
well as the criminal. If the court finds, but not otherwise, that the
offence is of an exceptionally depraved and heinous character and
constitutes, on account of its design and the manner of its execution,
a source of grave danger to the society at large, the court may impose
the death sentence.”
24. The conclusion of the Constitution Bench under these circumstances
was that the sentence of death ought to be given only in the rarest of rare
cases and it should be given only when the option of awarding the sentence
of life imprisonment is “unquestionably foreclosed”.
25. Bachan Singh, therefore, made two very significant departures from
Jagmohan Singh. The departures were: (i) in the award of punishment by
deleting any reference to the aggravating and mitigating circumstances of a
crime and (ii) in introducing the circumstances of the criminal. These
departures are really the crux of the matter, as far as we are concerned in
this case.
26. Bachan Singh effectively opened up Phase II of a sentencing policy by
shifting the focus from the crime to the crime and the criminal. This is
where Bachan Singh marks a watershed in sentencing. But, how effective has
been the implementation of Bachan Singh?
Issue of aggravating and mitigating circumstances:
27. In making the shift from the crime to the crime and the criminal, the
Constitution Bench in Bachan Singh looked at the suggestions given by
learned counsel appearing in the case. These suggestions, if examined,
indicate that in so far as aggravating circumstances are concerned, they
refer to the crime. They are: -
“(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 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.”
In so far as mitigating circumstances are concerned, they refer to the
criminal. They are: -
“(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.”
28. The Constitution Bench made it absolutely clear that the suggestions
given by learned counsel were only indicators and not an attempt to make an
exhaustive enumeration of the circumstances either pertaining to the crime
or the criminal. The Constitution Bench hoped and held that in view of the
“broad illustrative guide-lines” laid down, the Courts “will discharge the
onerous function with evermore scrupulous care and humane concern, directed
along the highroad of legislative policy outlined in Section 354(3) [of the
Cr.P.C.] viz. that for persons convicted of murder, life imprisonment is
the rule and death sentence an exception.”
29. Despite the legislative change and Bachan Singh discarding
proposition (iv)(a) of Jagmohan Singh, this Court in Machhi Singh revived
the “balancing” of aggravating and mitigating circumstances through a
balance sheet theory. In doing so, it sought to compare aggravating
circumstances pertaining to a crime with the mitigating circumstances
pertaining to a criminal. It hardly need be stated, with respect, that
these are completely distinct and different elements and cannot be compared
with one another. A balance sheet cannot be drawn up of two distinct and
different constituents of an incident. Nevertheless, the balance sheet
theory held the field post Machhi Singh.
30. The application of the sentencing policy through aggravating and
mitigating circumstances came up for consideration in Swamy Shraddananda
(2) v. State of Karnataka, (2008) 13 SCC 767. On a review, it was concluded
in paragraph 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 West Bengal, (2007) 12 SCC 230 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, (2009) 6 SCC
498 while sharing this Court’s “unease and sense of disquiet” in paragraphs
109, 129 and 130 of the Report. In fact, in paragraph 109 of the Report, it
was observed that
“… 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 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.
Issue of crime and the criminal:
34. Despite Bachan Singh, primacy still seems to be given to the nature
of the crime. The circumstances of the criminal, referred to in Bachan
Singh appear to have taken a bit of a back seat in the sentencing process.
This was noticed in Bariyar with reference to Ravji v. State of Rajasthan,
(1996) 2 SCC 175. It was observed that “curiously” only characteristics
relating to the crime, to the exclusion of the criminal were found relevant
to sentencing. It was noted that Ravji has been followed in several
decisions of this Court where primacy has been given to the crime and
circumstances concerning the criminal have not been considered. In
paragraph 63 of the Report it is noted that Ravji was rendered per incuriam
and then it was observed that:-
“It is apparent that Ravji has not only been considered but also
relied upon as an authority on the point that in heinous crimes,
circumstances relating to [the] criminal are not pertinent.”
35. It is now generally accepted that Ravji was rendered per incuriam
(see, for example, Dilip Premnarayan Tiwari v. State of Maharashtra, (2010)
1 SCC 775). Unfortunately, however, it seems that in some cases cited by
learned counsel the circumstances pertaining to the criminal are still not
given the importance they deserve.
36. In Shivu v. Registrar General, High Court of Karnataka, (2007) 4 SCC
713, the principle of ‘just desserts’ was applied and the death penalty
awarded to the convicts was upheld. The circumstances of the convicts were
not considered for reducing the death penalty.
37. Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
was a case of rape and murder of a three-year-old child in a vicious and
brutal manner. This Court confirmed the sentence of death after taking into
consideration the brutal nature of the crime but not the circumstances of
the criminal.
38. Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317 was a case of a
brutal rape and murder of a seven-year-old girl. While confirming the
sentence of death, this Court referred to the nature of the crime and the
extreme indignation of the community. On that basis, it leaned towards
awarding the death sentence and observed in paragraph 24 of the Report as
follows:-
“When the crime is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community and when collective conscience of
the community is petrified, one has to lean towards the death
sentence.”
39. A little later in paragraph 26 of the Report, this Court concluded
that the convict was a menace to society and it was held as follows:
“We are of the opinion that the appellant is a menace to the society
and shall continue to be so and he cannot be reformed. We have no
manner of doubt that the case in hand falls in the category of the
rarest of rare cases and the trial court had correctly inflicted the
death sentence which had rightly been confirmed by the High Court.”
40. The judgment does not, with respect, indicate the material that led
this Court to conclude what aroused the intense and extreme indignation of
the community. Except the nature of the crime, it is not clear on what
basis it concluded that the criminal was a menace to society and “shall
continue to be so and he cannot be reformed”.
41. In some other cases, aggravating circumstances pertaining to the
criminal (not the crime) have been considered relevant. Reference may be
made to two decisions rendered by this Court which, incidentally, seem to
have overlooked the presumption of innocence.
42. B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3
SCC 85 was a case where the convict was found guilty of rape, murder and
robbery. The crime was carried out in a depraved and merciless manner. Two
days after the incident, the local public caught him while he was
attempting to escape from a house where he made a similar attempt to rob
and assault a lady. There was nothing in law to show that the convict was
guilty of the second offence in as much as no trial was held. There were
some recoveries from his house, which indicated that the convict had
committed crimes in other premises also. Again, there was nothing in law to
show that he was found guilty of those crimes. On these facts, despite the
guilt of the criminal not having been established in any other case, the
convict was found incapable of rehabilitation and the death sentence
awarded to him was confirmed.
43. Sushil Murmu v. State of Jharkhand, (2004) 2 SCC 338 was a case of
child sacrifice. This Court confirmed the death sentence awarded to the
criminal after considering the fact that he was being tried for a similar
offence. Significantly, the convict was still an under-trial and had not
been found guilty of that similar offence. Nevertheless, this was found
relevant for upholding the death sentence awarded to him.
44. We also have some cases where, despite the nature of the crime, some
criminals have got the benefit of “mitigating circumstances” and their
death penalty has been reduced to imprisonment for life or for a term
without remission.
45. Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28 was a case
where the convict had raped a one-and-a-half year old child who died as a
result of the unfortunate incident. This Court found that the crime
committed was serious and heinous and the criminal had a dirty and
perverted mind and had no control over his carnal desires. Nevertheless,
this Court found it difficult to hold that the criminal was such a
dangerous person that to spare his life would endanger the community. This
Court reduced the sentence to imprisonment for life since the case was one
in which a “humanist approach” should be taken in the matter of awarding
punishment.
46. Dilip Premnarayan Tiwari was a case in which three convicts had
killed two persons and grievously injured two others, leaving them for
dead. A third victim later succumbed to his injuries. While noticing that
the crime was in the nature of, what is nowadays referred to as ‘honour
killing’, this Court reduced the death sentence awarded to two of the
criminals to imprisonment for life with a direction that they should not be
released until they complete 25 years of actual imprisonment. The third
criminal was sentenced to undergo 20 years of actual imprisonment. That
these criminals were young persons who did not have criminal antecedents
weighed in reducing their death sentence.
47. Sebastian v. State of Kerala, (2010) 1 SCC 58 was a case in which the
criminal had raped and murdered a two-year-old child. He was found to be a
pedophile with “extremely violent propensities”. Earlier, in 1998, he was
convicted of an offence under Section 354 of the IPC, that is, assault or
use of criminal force on a woman with intent to outrage her modesty, an
offence carrying a maximum sentence of two years imprisonment with fine.
Subsequently, he was convicted for a more serious offence under Sections
302, 363 and 376 of the IPC but an appeal was pending against his
conviction. The convict also appears to have been tried for the murder of
several other children but was acquitted in 2005 with the benefit of doubt,
the last event having taken place three days after he had committed the
rape and murder of the two year old child.
48. Notwithstanding the nature of the offence as well as his “extremely
violent propensities”, the sentence of death awarded to him was reduced to
imprisonment for the rest of his life.
49. Rajesh Kumar v. State, (2011) 13 SCC 706 was a case in which the
appellant had murdered two children. One of them was four and a half years
old and the criminal had slit his throat with a piece of glass which he
obtained from breaking the dressing table. The other child was an infant
of eight months who was killed by holding his legs and hitting him on the
floor. Despite the brutality of the crime, the death sentence awarded to
this convict was reduced to that of life imprisonment. It was held that he
was not a continuing threat to society and that the State had not produced
any evidence to show that he was incapable of reform and rehabilitation.
50. Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 was a case in which
a three-year-old child was subjected to rape, an unnatural offence and
murder. The convict was also found guilty of causing the disappearance of
evidence. The sentence of death awarded to him was reduced to imprisonment
for life subject to remissions. It was held that there was nothing to
suggest that he would repeat the offence. This Court proceeded on the
premise that the convict might reform over a period of years since there
was no evidence of any earlier offence committed by him.
51. Reference has been made to these decisions cited by learned counsel,
certainly not with a view to be critical of the opinion expressed, but with
a view to demonstrate the judge-centric approach to sentencing adverted to
in Swamy Shraddananda and endorsed in Bariyar and the existence of the
uncertainty principle in awarding life imprisonment or the death penalty.
Standardization and categorization of crimes:
52. Despite Bachan Singh, the “particular crime” continues to play a more
important role than the “crime and criminal” as is apparent from some of
the cases mentioned above. Standardization and categorization of crimes was
attempted in Machhi Singh for the practical application of the rarest of
rare cases principle. This was discussed in Swamy Shraddananda. It was
pointed out in paragraph 33 of the Report that the Constitution Bench in
Jagmohan Singh and Bachan Singh “had firmly declined to be drawn into
making any standardization or categorization of cases for awarding death
penalty”. In fact, in Bachan Singh the Constitution Bench gave over half a
dozen reasons against the argument for standardization or categorization of
cases. Swamy Shraddananda observed that Machhi Singh overlooked the fact
that the Constitution Bench in Jagmohan Singh and Bachan Singh had
“resolutely refrained” from such an attempt. Accordingly, it was held that
even though the five categories of crime (manner of commission of murder,
motive for commission of murder, anti-social or socially abhorrent nature
of the crime, magnitude of crime and personality of victim of murder)
delineated in Machhi Singh provide very useful guidelines, nonetheless they
could not be taken as inflexible, absolute or immutable.
53. Indeed, in Swamy Shraddananda this Court went so far as to note in
paragraph 48 of the Report that in attempting to standardize and categorize
crimes, Machhi Singh “considerably enlarged the scope for imposing death
penalty” that was greatly restricted by Bachan Singh.
54. It appears to us that the standardization and categorization of
crimes in Machhi Singh has not received further importance from this Court,
although it is referred to from time to time. This only demonstrates that
though Phase II in the development of a sound sentencing policy is still
alive, it is a little unsteady in its application, despite Bachan Singh.
Issue of remission of sentence:
55. Swamy Shraddananda and some of the decisions referred to therein have
taken us to Phase III in the evolution of a sound sentencing policy. The
focus in this phase is on criminal law and sentencing, and we are really
concerned with this in the present case. The issue under consideration in
this phase is the punishment to be given in cases where the death penalty
ought not to be awarded, and a life sentence is inadequate given the power
of remission available with the appropriate Government under Section 432 of
the Cr.P.C. In such a situation, what is the punishment that is
commensurate with the offence?
56. In Swamy Shraddananda this Court embarked on a journey to answer this
question. In doing so, this Court noted the mandate of Bachan Singh that
we must not only look at the crime but also give due consideration to the
circumstances of the criminal. It was noted that this Court “must lay down
a good and sound legal basis for putting the punishment of imprisonment for
life, awarded as substitute for death penalty, beyond any remission and to
be carried out as directed by the Court so that it may be followed in
appropriate cases as a uniform policy not only by this Court but also by
the High Court, being the superior courts in their respective States.” The
subject of discussion in this phase, therefore, is remission under Section
432 of the Cr.P.C. of a sentence awarded for a capital offence.
57. It is necessary, in this context, to be clear that the constitutional
power under Article 72 and Article 161 of the Constitution is, as yet, not
the subject matter of discussion, particularly in this case. Nor is the
power of commutation under Section 433 of the Cr.P.C. under discussion.
What is under limited discussion in this case is the remission power
available to the appropriate Government under Section 432 of the Cr.P.C.
58. A reading of some recent decisions delivered by this Court seems to
suggest that the remission power of the appropriate Government has
effectively been nullified by awarding sentences of 20 years, 25 years and
in some cases without any remission. Is this permissible? Can this Court
(or any Court for that matter) restrain the appropriate Government from
granting remission of a sentence to a convict? What this Court has done in
Swamy Shraddananda and several other cases, by giving a sentence in a
capital offence of 20 years or 30 years imprisonment without remission, is
to effectively injunct the appropriate Government from exercising its power
of remission for the specified period. In our opinion, this issue needs
further and greater discussion, but as at present advised, we are of the
opinion that this is not permissible. The appropriate Government cannot be
told that it is prohibited from granting remission of a sentence.
Similarly, a convict cannot be told that he cannot apply for a remission in
his sentence, whatever the reason.
59. It is true that a convict undergoing a sentence does not have right
to get a remission of sentence, but he certainly does have a right to have
his case considered for the grant of remission, as held in State of Haryana
v. Mahender Singh, (2007) 13 SCC 606 and State of Haryana v. Jagdish,
(2010) 4 SCC 216.
60. Swamy Shraddananda approached this issue from a particular
perspective, namely, what could be the “good and sound legal basis” to give
effect to the observations of this Court in Dalbir Singh v. State of
Punjab, (1979) 3 SCC 745 that:
“..… we may suggest that life imprisonment which strictly means
imprisonment for the whole of the man’s life but in practice amounts
to incarceration for a period between 10 and 14 years may, at the
option of the convicting court, be subject to the condition that the
sentence of imprisonment shall last as long as life lasts, where there
are exceptional indications of murderous recidivism and the community
cannot run the risk of the convict being at large.”
61. We look at the issue from a slightly different perspective. Section
45 of the IPC defines life as denoting the life of a human being, unless
the contrary appears from the context. Therefore, when a punishment for
murder is awarded under Section 302 of the IPC, it might be imprisonment
for life, where life denotes the life of the convict or death. The term of
sentence spanning the life of the convict, can be curtailed by the
appropriate Government for good and valid reasons in exercise of its powers
under Section 432 of the Cr.P.C. Broadly, this Section statutorily empowers
the appropriate Government to suspend the execution of a sentence or to
remit the whole or any part of the punishment of a convict [sub-section
(1)]. But, the statute provides some inherent procedural and substantive
checks on the arbitrary exercise of this power.
Procedural check on arbitrary remissions:
62. There does not seem to be any decision of this Court detailing the
procedure to be followed for the exercise of power under Section 432 of the
Cr.P.C. But it does appear to us that sub-section (2) to sub-section (5) of
Section 432 of the Cr.P.C. lay down the basic procedure, which is making an
application to the appropriate Government for the suspension or remission
of a sentence, either by the convict or someone on his behalf. In fact,
this is what was suggested in Samjuben Gordhanbhai Koli v. State of
Gujarat, (2010) 13 SCC 466 when it was observed that since remission can
only be granted by the executive authorities, the appellant therein would
be free to seek redress from the appropriate Government by making a
representation in terms of Section 432 of the Cr.P.C.
Section 432 of the Cr.P.C. reads as follows:-
432. Power to suspend or remit sentences — (1) When any person has
been sentenced to punishment for an offence, the appropriate
Government may, at any time, without conditions or upon any conditions
which the person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment to which he
has been sentenced.
(2) Whenever an application is made to the appropriate Government for
the suspension or remission of a sentence, the appropriate Government
may require the presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion as to whether
the application should be granted or refused, together with his
reasons for such opinion and also to forward with the statement of
such opinion a certified copy of the record of the trial or of such
record thereof as exists.
(3) If any condition on which a sentence has been suspended or
remitted is, in the opinion of the appropriate Government, not
fulfilled, the appropriate Government may cancel the suspension or
remission, and thereupon the person in whose favour the sentence has
been suspended or remitted may, if at large, be arrested by any police
officer, without warrant and remanded to undergo the unexpired portion
of the sentence.
(4) The condition on which a sentence is suspended or remitted under
this section may be one to be fulfilled by the person in whose favour
the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special
orders, give directions as to the suspension of sentences and the
conditions on which petitions should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence
of fine) passed on a male person above the age of eighteen years, no
such petition by the person sentenced or by any other person on his
behalf shall be entertained, unless the person sentenced is in jail,
and—
(a) where such petition is made by the person sentenced, it is
presented through the officer in charge of the jail; or
(b) where such petition is made by any other person, it contains
a declaration that the person sentenced is in jail.
(6) The provisions of the above sub-sections shall also apply to any
order passed by a Criminal Court under any section of this Code or of
any other law which restricts the liberty of any person or imposes any
liability upon him or his property.
(7) In this section and in Section 433, the expression “appropriate
Government” means, —
(a) in cases where the sentence is for an offence against, or
the order referred to in sub-section (6) is passed under, any
law relating to a matter to which the executive power of the
Union extends, the Central Government;
(b) in other cases, the Government of the State within which the
offender is sentenced or the said order is passed.
63. It appears to us that an exercise of power by the appropriate
Government under sub-section (1) of Section 432 of the Cr.P.C. cannot be
suo motu for the simple reason that this sub-section is only an enabling
provision. The appropriate Government is enabled to “override” a judicially
pronounced sentence, subject to the fulfillment of certain conditions.
Those conditions are found either in the Jail Manual or in statutory rules.
Sub-section (1) of Section 432 of the Cr.P.C. cannot be read to enable the
appropriate Government to “further override” the judicial pronouncement
over and above what is permitted by the Jail Manual or the statutory rules.
The process of granting “additional” remission under this Section is set
into motion in a case only through an application for remission by the
convict or on his behalf. On such an application being made, the
appropriate Government is required to approach the presiding judge of the
Court before or by which the conviction was made or confirmed to opine
(with reasons) whether the application should be granted or refused.
Thereafter, the appropriate Government may take a decision on the remission
application and pass orders granting remission subject to some conditions,
or refusing remission. Apart from anything else, this statutory procedure
seems quite reasonable in as much as there is an application of mind to the
issue of grant of remission. It also eliminates “discretionary” or en masse
release of convicts on “festive” occasions since each release requires a
case-by-case basis scrutiny.
64. It must be remembered in this context that it was held in State of
Haryana v. Mohinder Singh, (2000) 3 SCC 394 that the power of remission
cannot be exercised arbitrarily. The decision to grant remission has to be
well informed, reasonable and fair to all concerned. The statutory
procedure laid down in Section 432 of the Cr.P.C. does provide this check
on the possible misuse of power by the appropriate Government.
Substantive check on arbitrary remissions:
65. For exercising the power of remission to a life convict, the Cr.P.C.
places not only a procedural check as mentioned above, but also a
substantive check. This check is through Section 433-A of the Cr.P.C.
which provides that when the remission of a sentence is granted in a
capital offence, the convict must serve at least fourteen years of
imprisonment. Of course, the requirement of a minimum of fourteen years
incarceration may perhaps be relaxed in exercising power under Article 72
and Article 161 of the Constitution and Section 433 of the Cr.P.C. but, as
mentioned above, we are presently not concerned with these provisions and
say nothing in this regard, one way or the other.
66. Section 433-A of the Cr.P.C. reads as follows:-
433-A. Restriction on powers of remission or commutation in certain
cases.— Notwithstanding anything contained in Section 432, where a
sentence of imprisonment for life is imposed on conviction of a person
for an offence for which death is one of the punishments provided by
law, or where a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for life, such
person shall not be released from prison unless he had served at least
fourteen years of imprisonment.
67. In this context, it is necessary to refer to the decisions of the
Constitution Bench in Gopal Vinayak Godse v. State of Maharashtra, AIR 1961
SC 600 and Maru Ram v. Union of India, (1981) 1 SCC 107. Both these
decisions were considered in Ashok Kumar v. Union of India, (1991) 3 SCC
498.
68. In Godse the Constitution Bench dealt with the plea of premature
release and held that life imprisonment means that the prisoner will remain
in prison for the rest of his life. Credit for remissions given or awarded
has a meaning only if the imprisonment is for a definite period. Since life
imprisonment is for an indefinite period, remissions earned or awarded are
really theoretical. This is what this Court had to say:-
“Briefly stated the legal position is this: Before Act 26 of 1955 a
sentence of transportation for life could be undergone by a prisoner
by way of rigorous imprisonment for life in a designated prison in
India. After the said Act, such a convict shall be dealt with in the
same manner as one sentenced to rigorous imprisonment for the same
term. Unless the said sentence is commuted or remitted by appropriate
authority under the relevant provisions of the Indian Penal Code or
the Code of Criminal Procedure, a prisoner sentenced to life
imprisonment is bound in law to serve the life term in prison. The
rules framed under the Prisons Act enable such a prisoner to earn
remissions – ordinary, special and State – and the said remissions
will be given credit towards his term of imprisonment. For the purpose
of working out the remissions the sentence of transportation for life
is ordinarily equated with a definite period, but it is only for that
particular purpose and not for any other purpose. As the sentence of
transportation for life or its prison equivalent, the life
imprisonment, is one of indefinite duration, the remissions so earned
do not in practice help such a convict as it is not possible to
predicate the time of his death. That is why the rules provide for a
procedure to enable an appropriate government to remit the sentence
under Section 401 [now Section 432] of the Code of Criminal Procedure
on a consideration of the relevant factors, including the period of
remissions earned.”
69. Maru Ram affirmed the view taken in Godse that in matters of life
imprisonment, remissions earned or awarded are unreal and become relevant
only if there is a fictional quantification of the period of imprisonment.
More importantly, it was held that remissions earned or awarded cannot be
the basis for the determination of the fictional period of imprisonment. It
was held (in paragraph 25 of the Report):-
“Ordinarily where a sentence is for a definite term, the calculus of
remissions may benefit the prisoner to instant release at that point
where the subtraction result is zero. Here, we are concerned with life
imprisonment and so we come upon another concept bearing on the nature
of sentence which has been highlighted in Godse case. Where the
sentence is indeterminate and of uncertain duration, the result of
subtraction from an uncertain quantity is still an uncertain quantity
and release of the prisoner cannot follow except on some fiction of
quantification of a sentence of uncertain duration.”
70. It was then held in the same paragraph:-
“Since death was uncertain, deduction by way of remission did not
yield any tangible date for release and so the prayer of Godse was
refused. The nature of a life sentence is incarceration until death,
judicial sentence of imprisonment for life cannot be in jeopardy
merely because of the long accumulation of remissions.” (emphasis
given by us).
71. On the basis of the above decisions, the conclusion drawn in Ashok
Kumar was that remissions have a limited scope. They have no significance
till the exercise of power under Section 432 of the Cr.P.C. It was held, in
the following words:-
“It will thus be seen from the ratio laid down in the aforesaid two
cases that where a person has been sentenced to imprisonment for life
the remissions earned by him during his internment in prison under the
relevant remission rules have a limited scope and must be confined to
the scope and ambit of the said rules and do not acquire significance
until the sentence is remitted under Section 432, in which case the
remission would be subject to limitation of Section 433-A of the Code,
or constitutional power has been exercised under Article 72/161 of the
Constitution.”
72. On this issue, it was questioned in Godse whether there is any
provision of law where under a sentence for life imprisonment, without any
formal remission by the appropriate Government, can be automatically
treated as one for a definite period. It was observed that no such
provision is found in the Indian Penal Code, Code of Criminal Procedure or
the Prisons Act. It was noted that though the Government of India stated
before the Judicial Committee of the Privy Council in Kishori Lal v.
Emperor, AIR 1945 PC 64 that, having regard to Section 57 of the IPC,
twenty years imprisonment was equivalent to a sentence of transportation
for life, the Judicial Committee did not express its final opinion on that
question. However, in Godse the Constitution Bench addressed this in the
light of the Bombay Rules governing the remission system and concluded that
orders of the appropriate Government under Section 401 of the Criminal
Procedure Code [now Section 432 of the Cr.P.C] are a pre-requisite for
release. It was held that a prisoner sentenced to transportation for life
has no indefeasible right to an unconditional release on the expiry of a
particular term including remissions. “The rules under the Prisons Act do
not substitute a lesser sentence for a sentence of transportation for
life.”
73. This view was followed in State of Madhya Pradesh v. Ratan Singh,
(1976) 3 SCC 470 in the following words:-
“It is, therefore, manifest from the decision of this Court [in Godse]
that the Rules framed under the Prisons Act or under the Jail Manual
do not affect the total period which the prisoner has to suffer but
merely amount to administrative instructions regarding the various
remissions to be given to the prisoner from time to time in accordance
with the rules. This Court further pointed out that the question of
remission of the entire sentence or a part of it lies within the
exclusive domain of the appropriate Government under Section 401 of
the Code of Criminal Procedure and neither Section 57 of the Indian
Penal Code nor any Rules or local Acts can stultify the effect of the
sentence of life imprisonment given by the court under the Indian
Penal Code. In other words, this Court has clearly held that a
sentence for life would enure till the lifetime of the accused as it
is not possible to fix a particular period of the prisoner's death and
remissions given under the Rules could not be regarded as a substitute
[of a lesser sentence] for a sentence of transportation for life. In
these circumstances, therefore, it is clear that the High Court was in
error in thinking that the respondent was entitled to be released as
of right on completing the term of 20 years including the remissions.”
74. Under the circumstances, it appears to us there is a misconception
that a prisoner serving a life sentence has an indefeasible right to
release on completion of either fourteen years or twenty years
imprisonment. The prisoner has no such right. A convict undergoing life
imprisonment is expected to remain in custody till the end of his life,
subject to any remission granted by the appropriate Government under
Section 432 of the Cr.P.C. which in turn is subject to the procedural
checks in that Section and the substantive check in Section 433-A of the
Cr.P.C.
75. In a sense, therefore, the application of Section 432 of the Cr.P.C.
to a convict is limited. A convict serving a definite term of imprisonment
is entitled to earn a period of remission or even be awarded a period of
remission under a statutory rule framed by the appropriate Government or
under the Jail Manual. This period is then offset against the term of
punishment given to him. In such an event, if he has undergone the
requisite period of incarceration, his release is automatic and Section 432
of the Cr.P.C. will not even come into play. This Section will come into
play only if the convict is to be given an “additional” period of remission
for his release, that is, a period in addition to what he has earned or has
been awarded under the Jail Manual or the statutory rules.
76. In the case of a convict undergoing life imprisonment, he will be in
custody for an indeterminate period. Therefore, remissions earned by or
awarded to such a life convict are only notional. In his case, to reduce
the period of incarceration, a specific order under Section 432 of the
Cr.P.C. will have to be passed by the appropriate Government. However, the
reduced period cannot be less than 14 years as per Section 433-A of the
Cr.P.C.
77. Therefore, Section 432 of the Cr.P.C. has application only in two
situations: (1) Where a convict is to be given “additional” remission or
remission for a period over and above the period that he is entitled to or
he is awarded under a statutory rule framed by the appropriate Government
or under the Jail Manual. (2) Where a convict is sentenced to life
imprisonment, which is for an indefinite period, subject to procedural and
substantive checks.
78. What Section 302 of the IPC provides for is only two punishments –
life imprisonment and death penalty. In several cases, this Court has
proceeded on the postulate that life imprisonment means fourteen years of
incarceration, after remissions. The calculation of fourteen years of
incarceration is based on another postulate, articulated in Swamy
Shraddananda, namely that a sentence of life imprisonment is first commuted
(or deemed converted) to a fixed term of twenty years on the basis of the
Karnataka Prison Rules, 1974 and a similar letter issued by the Government
of Bihar. Apparently, rules of this nature exist in other States as well.
Thereafter, remissions earned or awarded to a convict are applied to the
commuted sentence to work out the period of incarceration to fourteen
years.
79. This re-engineered calculation can be made only after the appropriate
Government artificially determines the period of incarceration. The
procedure apparently being followed by the appropriate Government is that
life imprisonment is artificially considered to be imprisonment for a
period of twenty years. It is this arbitrary reckoning that has been
prohibited in Ratan Singh. A failure to implement Ratan Singh has led this
Court in some cases to carve out a special category in which sentences of
twenty years or more are awarded, even after accounting for remissions. If
the law is applied as we understand it, meaning thereby that life
imprisonment is imprisonment for the life span of the convict, with
procedural and substantive checks laid down in the Cr.P.C. for his early
release we would reach a legally satisfactory result on the issue of
remissions. This makes an order for incarceration for a minimum period of
20 or 25 or 30 years unnecessary.
Conclusion:
80. The broad result of our discussion is that a relook is needed at some
conclusions that have been taken for granted and we need to continue the
development of the law on the basis of experience gained over the years and
views expressed in various decisions of this Court. To be more specific, we
conclude:
1. This Court has not endorsed the approach of aggravating and
mitigating circumstances in Bachan Singh. However, this approach
has been adopted in several decisions. This needs a fresh look.
In any event, there is little or no uniformity in the application
of this approach.
2. Aggravating circumstances relate to the crime while mitigating
circumstances relate to the criminal. A balance sheet cannot be
drawn up for comparing the two. The considerations for both are
distinct and unrelated. The use of the mantra of aggravating and
mitigating circumstances needs a review.
3. In the sentencing process, both the crime and the criminal are
equally important. We have, unfortunately, not taken the
sentencing process as seriously as it should be with the result
that in capital offences, it has become judge-centric sentencing
rather than principled sentencing.
4. The Constitution Bench of this Court has not encouraged
standardization and categorization of crimes and even otherwise it
is not possible to standardize and categorize all crimes.
5. The grant of remissions is statutory. However, to prevent its
arbitrary exercise, the legislature has built in some procedural
and substantive checks in the statute. These need to be faithfully
enforced.
6. Remission can be granted under Section 432 of the Cr.P.C. in the
case of a definite term of sentence. The power under this Section
is available only for granting “additional” remission, that is,
for a period over and above the remission granted or awarded to a
convict under the Jail Manual or other statutory rules. If the
term of sentence is indefinite (as in life imprisonment), the
power under Section 432 of the Cr.P.C. can certainly be exercised
but not on the basis that life imprisonment is an arbitrary or
notional figure of twenty years of imprisonment.
7. Before actually exercising the power of remission under Section
432 of the Cr.P.C. the appropriate Government must obtain the
opinion (with reasons) of the presiding judge of the convicting or
confirming Court. Remissions can, therefore, be given only on a
case-by-case basis and not in a wholesale manner.
81. Given these conclusions, we are of the opinion that in cases such as
the present, there is considerable uncertainty on the punishment to be
awarded in capital offences – whether it should be life imprisonment or
death sentence. In our opinion, due to this uncertainty, awarding a
sentence of life imprisonment, in cases such as the present is not
unquestionably foreclosed. More so when, in this case, there is no evidence
(contrary to the conclusion of the High Court) that Seema’s body was burnt
by Sandeep from below the waist with a view to destroy evidence of her
having been subjected to sexual harassment and rape. There is also no
evidence (again contrary to the conclusion of the High Court) that Narender
was a professional killer.
82. Therefore, we allow these appeals to the extent that the death
penalty awarded to the appellants is converted into a sentence of life
imprisonment, subject to what we have said above.
83. We place on record our appreciation for the efforts put in by both
learned counsel for the assistance rendered in this case.
..….…….………………………….J.
(K.S. Radhakrishnan)
...…….…….……………………..J.
(Madan B. Lokur)
New Delhi;
November 20, 2012
