punishable in http://judis.nic.in/supremecourt/imgst.aspx?filename=40794
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.249-250 OF 2011
DEEPAK RAI Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
WITH
CRIMINAL APPEAL NOS.1747-1748 OF 2011
JAGAT RAI AND ANR. Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
J U D G M E N T
H.L. Dattu, J:
1. These appeals are directed against the judgment and order
passed by the High Court of Judicature at Patna in Death
Reference No. 6 of 2009 and Criminal Appeal(DB) Nos. 989 of
2009 and 158 of 2010, dated 19.08.2010. By the impugned
judgment and order, the High Court has confirmed the
judgment of conviction, dated 17.09.2010 and order of
sentence, dated 30.10.2009 passed by the Additional
Sessions Judge cum FTC No. 2, Vaishali at Hazipur in
Sessions Trial No. 195 and 571 of 2006, whereby the learned
Sessions Judge has convicted the three accused-appellants
for offence under Sections 120B, 148, 302 read with 149,
307 read with 149, 326, 429, 436 and 452 of Indian Penal
Code, 1860 (for short ‘the IPC’) and sentenced them to
death.
Facts:
2. The Prosecution case in a nutshell is: On the fateful night
of 01.01.2006, the deceased informant (PW-7) was sleeping
in the Varanda of his house and his wife alongwith the
children, two daughters aged 12 and 10 years, respectively
and three sons aged 8, 6 and 3 years, respectively were
sleeping in the room inside the house. At around 01.00
A.M., he was awakened by the sound of footsteps of several
people. In the dim light of a night bulb and further from
their voices, he identified the persons who had come near
his house armed with lethal weapons as appellant-accused
persons and nine other villagers besides 10-11 unknown
persons. Before the informant could escape, appellant-
accused-Jagat Rai(A1) and Deepak Rai(A2) caught hold of him
and pushed him on the ground whereafter 3-4 unknown persons
got over his body and gagged him. Then A1 instructed few
others to surround the house from all sides and sprinkle
kerosene over it, while the other accused persons locked
the door of the room where the informant’s wife was
sleeping alongwith the children and set the house on fire
trapping them inside. Thereafter, they sprinkled kerosene
over the informant’s body and held him to the ground while
A1 set the informant’s mouth on fire by lighting a
matchstick. Upon rising of a blazing flash of fire, the
accused persons fled away leaving the informant behind.
While the informant also attempted to escape, A2 fired at
him but the informant managed an escape and raised alarm.
On hearing such noise, the informant’s four brothers and
other family members who resided in the adjoining houses
woke up, reached the spot and witnessed the accused persons
running away while the informant was on fire. Until then
the fire in informant’s house had reached its enormity,
swallowing the informant’s family and injuring the buffalo
and calf on the property. The informant (PW-7) was rushed
to the Primary Health Centre, Raghopur.
3. The fardbayan was recorded at 7:30 AM, on the basis of
which an FIR was registered against the three appellant-
accused and few others for the offence under Sections 147,
148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the
IPC at 9:00 AM on 01.01.2006. The motive of the occurrence
was alleged to be the informant’s refusal even after
consistent threats by A1 to withdraw the FIR lodged by him
for the theft of informant’s buffalo against A1 and his
family, in pursuance of which two members of his family
were arrested. Upon investigation, the chargesheet was
drawn against the aforesaid accused persons on 21.03.2006.
The learned Judicial Magistrate, First Class, Hazipur,
Vaishali bifurcated the case of the absconded accused
persons-A1, A2 and 8 others and committed the case of
Bacchababu Rai (A3) and 5 others for trial as Sessions
Trial No. 195 of 2006, by order dated 06.05.2006. Upon
arrest of the accused persons-A1, A2 and one other, their
case was separated from other absconder-accused persons and
committed to trial as Sessions Trial No. 571 of 2006, by
order dated 15.12.2006.
4. While in Sessions Trial No. 195 of 2006, 17 witnesses were
examined and 14 exhibits were produced, in Sessions Trial
No.571 of 2006, 14 witnesses were examined and 11 exhibits
were produced by the prosecution. Since both the cases
arose out of the same FIR, they were consolidated by order
dated 12.01.2008, whereafter their trial proceeded
together. While A2 examined 8 witnesses, other two accused
persons- Binay Rai and Ranjay Rai examined five and three
witnesses, respectively in their defence.
5. Since the evidence of prosecution witnesses recorded in the
two trials corroborates the prosecution case in material
particulars, brevitatis causa and to avoid repetition we
would only notice them once. The informant (PW-7) has
identified the appellant-accused persons, supported the
prosecution case in his evidence and testified in respect
of the time and manner of occurrence of the fateful
incident and the motive of the accused persons. PWs 1, 2, 3
and 4 are the brothers of PW-7 who resided adjacent to PW-
7’s house. They have identified the accused persons and
further corroborated the prosecution case in respect of
time of occurrence and motive of the appellant-accused
persons. PW-1 has stated that as soon as he heard PW-7’s
shrieks and noise from the blazing fire, he rushed outside
his house and witnessed the accused persons fleeing away.
He found PW-7 on fire and immediately covered him with a
blanket to douse it; whereafter, he along with others
attempted to set the fire off at PW-7’s house but the fire
having transformed into a conflagration it was too late to
save the six deceased persons. PW-5 (wife of PW-2), PW-6
(mother of PW-7), PW-14 (wife of PW-1), PW-15 (sister of PW-
7) and PW-16 (wife of PW-4) have also supported the
prosecution case in respect of PW-1’s account of the
incident, i.e., the fleeing away of the three appellant-
accused persons along with others and the motive of the
accused persons behind the incident. PW-8, the Doctor who
conducted post mortem examination of the six deceased
persons, has corroborated the prosecution case that the
death occurred by 100% burn injuries. PW-10, the Doctor who
treated PW-7, has testified in respect of the injuries
suffered by PW-7. His evidence alongwith the post-mortem
report corroborate the time and manner of the fateful
incident. Further, PW-11 (the Investigating Officer)
supported the prosecution case with regard to the time and
place of the occurrence and the presence of charred dead
bodies of the six deceased persons. The Trial Court
discarded the testimonies of the defence witnesses at the
outset and proceeded with the trial.
6. Upon meticulous consideration of the evidence on record and
the submissions made by the parties, the learned Sessions
Judge has observed that even though the witnesses examined
by the prosecution are related to the victims, their
testimonies when considered with due care and caution are
corroborated by the evidence of informant (PW-7), the post
mortem reports, evidence of the Doctors(PW-9 and 10) and
the evidence of PW-11, the Investigating Officer and
therefore, cannot be rejected on the prima facie ground of
them being interested witnesses. The Trial Court has
believed the aforesaid evidence corroborating the
prosecution case in respect of A1, A2 and A3; however,
doubted the presence of other accused persons since their
names have neither been mentioned in the fardbayan nor has
the evidence produced against them proved their offence
beyond reasonable doubt. In light of the aforesaid
observations, the Trial Court has reached the conclusion
that the three appellant-accused persons are guilty of the
aforesaid offence and has convicted them accordingly while
acquitting the others, by judgment dated 17.09.2009.
Further, after affording an opportunity of hearing to the
appellant-accused persons on the question of sentence, the
Trial Court has sentenced them to death, by order dated
30.10.2009, relevant paragraphs of which are reproduced as
under:
“Heard both sides on the question of sentence on behalf of the held
guilty accused Bachcha Babu Rai, Jagat Rai, Bipat Rai alias Deepak
Rai, it has been submitted that before this, they have not been
punished in any case of them Bipat Rai @ Deepak is a retired
military personnel. Keeping in mind, their age has also first
conviction, minimum of sentence may be inflicted.
On behalf of the prosecution it has been said that the guilty
held persons Bachcha Babu Rai, Jagat Rai, Bipat Rai@ Deepak Rai have
committed a heinous offence and their offence falls under the
category of RARE OF RAREST. Their heinous crime has ruined the
informant of this case, his wife and five children. So far Bipat
Rai is concerned, he is a retired military personnel his conduct
should be all the more decent. They are not of tender age nor old.
They do not deserve any mercy and they deserve death sentence. In
the light of the reasoning of both sides as also on an appreciation,
it is manifest, that the occurrence is of night when the informant,
his wife and five minor children and cattle all have been burnt to
death. The informant also subsequently died in this way, the entire
family is ruined. In the light of the guidelines as given by
Hon’ble Supreme Court, this case falls under the heading of RARE OF
RAREST cases. Because of this the guilty held accused persons
Bachcha Babu Rai, Jagat Rai and Bipat Rai allias Deepak Rai are
sentenced to death or offence u/s 302/ 149 IPC. …”
7. Aggrieved by the aforesaid judgment and order, the three
appellant-accused persons filed appeals before the High
Court which were heard alongwith the Death Reference No. 6
of 2009 and disposed of by a common judgment and order,
dated 19.08.2010. The High Court has elaborately dealt with
the evidence on record and extensively discussed the
judgment and order of the Trial Court in order to ascertain
the correctness or otherwise of the conviction and sentence
awarded to the appellant-accused persons. The High Court
has observed that since, the informant is the only witness
who was present at the scene of crime, his testimony alone
could substantiate upon the specific role of accused
persons in the commission of the ghastly offence. In so far
as the identification of the appellant-accused persons, the
High Court has observed that the informant in the fardbeyan
specifically mentions their names and, infact, attributes
specific roles to them in the commission of the offence,
i.e., A1 commanding the house to be set on fire and
lighting the matchstick to set the informant’s mouth on
fire and later, when the informant was attempting to
escape, A2 firing at the informant. Further, that during
the commission of the offence the accused persons were in
close proximity to the informant and the presence of dim
light of bulb in the night and the illumination by flames
of burning house coupled with them being known to the
informant establishes their identity in the evidence of
informant, which is supplemented and strengthened by the
evidence of PWs 1, 2, 3, 4, 5 and 6. The High Court has
further observed that the prosecution case in respect of
the time and place of occurrence and the factum of accused
persons fleeing the spot of occurrence immediately after
setting the house on fire causing death of six persons by
burning them alive and injury to the informant has been
well established by cogent, reliable and unimpeachable eye-
witnesses and further corroborated by the testimonies of
the Doctors, post-mortem report, medical report and the
evidence of Investigating Officer. On the basis of the
aforesaid, the High Court has concluded towards the guilt
of the accused appellants and sentenced them as follows:
“…since the occurrence is ghastly murder of wife and five children
of the informant by closing in room for not withdrawing the case of
theft of buffalo shocked the entire community bringing the case in
the category of rare of rarest to attract the maximum punishment and
hence the reference is answered in the affirmative and I do not find
any merit in the two appeals and hence the appeals are dismissed……”
8. Aggrieved by the aforesaid conviction and sentence, the
appellants are before us in these appeals. The appeals
before us are limited to the question of sentence.
Submissions:
9. We have heard Dr. Sumant Bharadwaj learned counsel
appearing for A2, Shri Ramesh Chandra Mishra, learned
counsel appearing for A1 and A3 and Shri Nagendra Rai,
learned senior counsel appearing for the respondent-State.
10. Dr. Bharadwaj would submit that the Courts below have erred
in sentencing A2 as the reasons recorded by the Courts
below do not conform to the statutory mandate prescribed
under Section 354(3) of the Code of Criminal Procedure,
1973 (for short ‘the Code’), which require the judgment to
record “reasons” in case of sentence of life imprisonment
and “special reasons” in case of death sentence. He would
submit that the since no extraordinary reasons have been
assigned by the Courts below to sentence the appellant to
death instead of a less harsher sentence and that this
Court in appellate jurisdiction cannot go into the same for
the first time while confirming the death sentence, the
matter requires to be remanded to the Trial Court for fresh
consideration on the question of sentence as per Section
354(3) of the Code. Further, he would place reliance upon
the judgments of this Court in Ambaram v. State of M.P.,
(1976) 4 SCC 298, Balwant Singh v. State of Punjab, (1976)
1 SCC 425, Dagdu v. State of Maharashtra, (1977) 3 SCC 68,
Muniappan v. State of T.N., (1981) 3 SCC 11 and Rajesh
Kumar v. State, (2011) 13 SCC 706; wherein this Court has
held that “special reasons” are essential for awarding
death sentence under Section 354(3) of the Code and in
absence of such reasons has commuted the sentence passed by
the Courts below from death to life imprisonment and submit
that since, in the instant case, no “special reasons” were
recorded by the Courts below while sentencing the
appellants, the sentence of the appellants ought to be
commuted to life imprisonment.
11. Shri Mishra would assail the sentence awarded by the Trial
Court and confirmed by the High Court and submit that in
the instant case mitigating circumstances overwhelmingly
outweigh the aggravating circumstances and therefore, ends
of justice would only be achieved by commuting the sentence
of the two appellant-accused persons, A1 and A3, from death
to imprisonment for life. He would put forth the following
factors in support of his submission:
“Mitigating Circumstances:
1. Appellants are not hard core criminals,
2. They are not threat/ menace to the Society,
3. They have no criminal antecedent/ background,
4. They are not antisocial elements,
5. Their conduct in Jail has been satisfactory,
6. The State has failed to prove that they are incapable of
being reformed
7. They have been in Jail for about seven years,
8. Delay of seven years in execution of death sentence confirmed
in death anticipating imminent death any moment,
9. Death sentence is exception and life-imprisonment is rule,
10. Global move to abolish death sentence. 138 nations have
abolished death sentence while 59 countries including India
have retained death sentence. (2009) 6 SCC 498. Relevant
page- 544, paras 111-112,
11. Jagat Rai at the time of commission of offence was 48 years
while Bachcha Babu Rai was 43 years, comparatively young,
12. Offence was committed when the appellant were under the
influence of extreme of mental disturbance due to pendency of
criminal case,
13. There is every probability that the appellants can be
reformed and rehabilitated,
14. All the four main objectives which state intends to achieve
namely deterrence, prevention, retribution and reformation
can be achieved by keeping the appellants alive.
Aggravating Circumstances:
1. It was a planned, cold-blooded brutal murder,
2. Entire family was wiped out.…”
12. A contrario Shri Rai would support the judgment and order
passed by the Courts below convicting the appellants of the
aforesaid offence and sentencing them to death. He would
submit that the reasons recorded by the Courts below fall
within the statutory requirements under Section 354(3) of
the Code as well as the parameters laid down by this Court
for recording “special reasons” while sentencing a convict
to death. He would distinguish the cases cited by Shri
Bharadwaj as cases wherein the sentence of the accused
persons was commuted due to reasons besides absence of
“special reasons” for sentencing the accused therein in the
judgments and orders of the Courts below and further place
reliance upon the decision of this Court in Gurdev Singh v.
State of Punjab, (2003) 7 SCC 258 amongst others, wherein
this Court has sentenced the accused persons therein who
were responsible for causing the death of fifteen persons,
besides causing grievous injuries to eight others to death
after balancing the aggravating and mitigating
circumstances.
13. We have given our anxious consideration to the materials on
record in its entirety, the submissions made by the learned
counsel for the parties and the judgments and orders of the
Courts below.
Issues for consideration:
14. The questions which fall for our consideration and decision
are first, whether the reasons assigned by the Courts below
while sentencing the appellants are “special reasons” under
Section 354(3) of the Code and second, whether the offence
committed by the appellants fall into the category of
“rarest of the rare” cases so as to warrant death sentence.
Cases cited by Shri Bharadwaj:
15. At the outset we would examine the decisions relied upon by
Dr. Bharadwaj and examine whether at all should the
sentence in the present case, for lack of special reasons
being assigned by the Trial Courts as well as the High
Courts, ought to be commuted to imprisonment for life.
16. In Ambaram case (supra), the appellant-accused was tried
along with four others for murder of two persons. It was
the appellant therein who shot one while his companions
assaulted the other to death with sharp-edged weapons and a
lathi. He was convicted under Section 302 of the IPC by the
Trial Court and sentenced to death alone by the Trial Court
as well as the High Court against which he had approached
this Court by filing a special leave petition. It is
pertinent to note that his appeal was limited to the
question of sentence. This Court has noticed the change in
the law introduced under Section 354(3) of the Code in 1973
which confers discretion on the Courts to inflict the death
sentence or the sentence of life imprisonment each
according to the circumstances and exigencies of each case
but enjoins duty upon them to justify it by giving special
reasons and reasons, respectively. This Court has observed
as follows:
“1. …The High Court has not given any special reasons why
Ambaram has been singled out for the award of the extreme penalty.
Nor do we find any such reason to treat him differently in the
matter of sentence from his companions who have been awarded the
lesser penalty. On this short ground we allow this appeal and
commute Ambaram’s death sentence to that of imprisonment for life.”
(emphasis supplied)
17. In Balwant Singh v. State of Punjab, (1976) 1 SCC 425 this
Court has observed as follows:
“4. …On the facts of this case, it is true that the appellant had
a motive to commit the murder and he did it with an intention to
kill the deceased. His conviction under Section 302 of the Penal
Code was justified but the facts found were not such as to enable
the Court to say that there were special reasons for passing the
sentence of death in this case.”
(emphasis supplied)
Thereafter, this Court has observed the error committed by the High
Court in applying the principle of extenuating circumstances under the
older Code even after the present Code coming into force in 1973 which
requires the Court to assign special reasons while awarding death
penalty and observed the follows:
“5. The High Court has referred to the two decisions of this Court
namely in Mangal Singh v. State of U.P., (1975) 3 SCC 290 and in
Perumal v. State of Kerala, (1975) 4 SCC 109 and has then said:
“There are no extenuating circumstances in this case and the
death sentence awarded to Balwant Singh appellant by the
Sessions Judge is confirmed ....”
As we have said above, even after noticing the provisions of
Section 354(3) of the new Criminal Procedure Code the High Court
committed an error in relying upon the two decisions of this Court
in which the trials were held under the old Code. It wrongly
relied upon the principle of absence of extenuating circumstances
— a principle which was applicable after the amendment of the old
Code from January 1, 1956 until the coming into force of the new
Code from April 1, 1974. In our judgment there is no special
reason nor any has been recorded by the High Court for confirming
the death sentence in this case. We accordingly allow the appeal
on the question of sentence and commute the death sentence imposed
upon the appellant to one for imprisonment for life.”
(emphasis supplied)
18. In Muniappan v. State of T.N., (1981) 3 SCC 11, this Court
has observed that not only has the Trial Court failed to
provide adequate hearing to the accused under Section
235(2), but also it as well as the High Court have not
assigned appropriate reasons while awarding and confirming
the sentence of the accused, respectively and thus, reached
the conclusion that the sentence of death could not be
imposed.
19. Further, in Dagdu case (supra) and Rajesh Kumar case
(supra) this Court has considered the facts and
circumstances of the case in its entirety while balancing
the aggravating and mitigating circumstances to decide upon
the adequacy of sentence awarded by the Courts below and
upon reaching such satisfaction that the case did not fall
into the category of “rarest of the rare” warranting
“special reasons” for the award of death sentence has
commuted the sentence of the accused.
20. Thus in the aforementioned cases, this Court has upon
examination of both-the evidence on record and the
reasoning of the Courts below while sentencing the accused
reached an independent conclusion that the facts and
circumstances of the case do not warrant imposition of
sentence of death. Therefore, it is not the absence or
adequacy of “special reasons” alone what weighed in the
mind of this Court while commuting the sentence. The facts
in toto and procedural impropriety, if any loomed large in
exercising such discretion. Hence, the reliance placed on
the aforementioned decisions is rejected.
Scope of Article 136 vis-à-vis examination of “special reasons”
21. Further, we are unable to accept the submission that in any
case the failure on the part of the Court, which has
convicted an accused and heard him on the question of
sentence but failed to express the “special reasons” in so
many words, must necessarily entail a remand to that Court
for elaboration upon its conclusion in awarding the death
sentence for the reason that while exercising appellate
jurisdiction this Court cannot delve into such reasons.
22. Since the appellants are before us by way of an appeal by
special leave, we would first examine the scope of
jurisdiction of this Court under Article 136 of the
Constitution of India vis-à-vis criminal appeals.
23. The appellate jurisdiction vested in this Court by virtue
of Article 136 is not plain statutory but expansive and
extraordinary. The Court exercises its discretion and
grants leave to appeal in cases where it is satisfied that
the same would circumvent a grave miscarriage of justice.
Such jurisdiction is not fettered by rules of criminal
procedure but guided by judicially evolved principles.
24. We are fortified by the decision of this Court in State of
U.P. v. Dharmendra Singh, (1999) 8 SCC 325, where while
examining the applicability of Section 377(3) of the Code
to an appeal under Article 136 has observed as follows:
“10. …A perusal of this section shows that this provision is
applicable only when the matter is before the High Court and the
same is not applicable to this Court when an appeal for enhancement
of sentence is made under Article 136 of the Constitution. It is to
be noted that an appeal to this Court in criminal matters is not
provided under the Code except in cases covered by Section 379 of
the Code. An appeal to this Court under Article 136 of the
Constitution is not the same as a statutory appeal under the Code.
This Court under Article 136 of the Constitution is not a regular
court of appeal which an accused can approach as of right. It is an
extraordinary jurisdiction which is exercisable only in exceptional
cases when this Court is satisfied that it should interfere to
prevent a grave or serious miscarriage of justice, as distinguished
from mere error in appreciation of evidence. While exercising this
jurisdiction, this Court is not bound by the rules of procedure as
applicable to the courts below. This Court’s jurisdiction under
Article 136 of the Constitution is limited only by its own
discretion (see Nihal Singh v. State of Punjab, AIR 1965 SC 26. In
that view of the matter, we are of the opinion that Section 377(3)
of the Code in terms does not apply to an appeal under Article 136
of the Constitution.
11. This does not mean that this Court will be unmindful of the
principles analogous to those found in the Code including those
under Section 377(3) of the Code while moulding a procedure for the
disposal of an appeal under Article 136 of the Constitution. Apart
from the Supreme Court Rules applicable for the disposal of the
criminal appeals in this Court, the Court also adopts such analogous
principles found in the Code so as to make the procedure a “fair
procedure” depending on the facts and circumstances of the case.”
(emphasis supplied)
25. More so, it is settled law that an appeal by special leave
under Article 136 is a continuation of the original
proceedings. In Moran M. Baselios Marthoma Mathews II v.
State of Kerala, (2007) 6 SCC 517, this Court categorically
observed as follows:
“13. We, therefore, are of the opinion that despite the fact that
the appellants had insisted upon before the High Court for issuance
of a writ or in the nature of mandamus upon the State or its
officers for the purpose of grant of police protection as this Court
has exercised its appellate jurisdiction under Article 136 of the
Constitution of India, it can and should go into that question as
well viz. as to whether the writ petition itself could have been
entertained or not, particularly, when the appeal is a continuation
of the original proceedings.”
26. Further, this Court in Netai Bag v. State of W.B., (2000) 8
SCC 262 while observing that the scope of an appeal under
Articles 136 and 226 cannot be wider than the earlier
proceedings, has noticed that the appeals under said
provisions are continuation of the original proceedings.
27. Thus, jurisdiction of this Court in appeal under Article
136 though circumscribed to the scope of earlier
proceedings is neither fettered by the rules of criminal
procedure nor limited to mere confirmation or rejection of
the appeal. This Court while considering the question of
correctness or otherwise of the sentence awarded by the
Courts below has exercised discretionary jurisdiction under
Article 136 and hence can not only examine the reasons so
assigned under Section 354(3) but also substantiate upon
the same, if need so be.
28. With the aforesaid in view, let us now examine the issues
before us.
Issue one: “Special reasons” under Section 354(3) of the Code
29. Under Section 367(5) of the Code of Criminal Procedure,
1898 (for short “old Code”), the normal sentence to be
awarded to a person found guilty of murder was death and
imprisonment for life was an exception. The Amending Act 26
of 1955 amended Section 367(5) of the old Code resulting in
vesting of discretion with the Court to inflict the
sentence of life imprisonment or death each according to
the circumstances and exigencies of the case. The amended
Section 367(5) of the old Code reads as follows:
“367. (5) 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.”
30. The present Code which was legislated in 1973 brought a
shift in the then existing penological trend by making
imprisonment for life a rule and death sentence an
exception. It makes it mandatory for the Court in cases of
conviction for an offence punishable with imprisonment for
life to assign reasons in support of the sentence awarded
to the convict and further ordains that in case the Court
awards the death penalty, “special reasons” for such
sentence shall be stated in the judgment. It 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."
31. For the first time, this shift in sentencing policy has
been observed by Krishna Iyer J. (as he then was) in Ediga
Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, as
follows:
“18. It cannot be emphasised too often that crime and punishment are
functionally related to the society in which they occur, and Indian
conditions and stages of progress must dominate the exercise of
judicial discretion in this case.
…
21. It is obvious that the disturbed conscience of the State on the
vexed question of legal threat to life by way of death sentence has
sought to express itself legislatively, the stream of tendency being
towards cautious, partial abolition and a retreat from total
retention.”
(Also Ambaram case (supra), Joseph v. State of Goa, (1977) 3 SCC
280, Triveniben v. State of Gujarat)
32. Further, this Court in Harnam v. State of U.P., (1976) 1
SCC 163 supplemented the aforesaid observations and noted
as follows:
“4. …The seminal trends in current sociological thinking and penal
strategy, tampered as they are by humanistic attitude and deep
concern for the worth of the human person, frown upon death penalty
and regard it as cruel & savage punishment to be inflicted only in
exceptional cases. It is against this background of legislative
thinking which reflects the social mood and realities and the
direction of the penal and procedural laws that we have to consider
whether the tender age of an accused is a fetor contra-indicative of
death penalty.”
33. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 this
Court has examined the purpose of inclusion of “special
reasons” clause as follows:
“9. … When the law casts a duty on the judge to state reasons it
follows that he is under a legal obligation to explain his choice of
the sentence. It may seem trite to say so, but the existence of the
“special reasons clause” in the above provision implies that the
court can in fit cases impose the extreme penalty of death which
negatives the contention that there never can be a valid reason to
visit an offender with the death penalty, no matter how cruel,
gruesome or shocking the crime may be… While rejecting the demand of
the protagonist of the reformatory theory for the abolition of the
death penalty the legislature in its wisdom thought that the
“special reasons clause” should be a sufficient safeguard against
arbitrary imposition of the extreme penalty. Where a sentence of
severity is imposed, it is imperative that the judge should indicate
the basis upon which he considers a sentence of that magnitude
justified. Unless there are special reasons, special to the facts of
the particular case, which can be catalogued as justifying a severe
punishment the judge would not award the death sentence. It may be
stated that if a judge finds that he is unable to explain with
reasonable accuracy the basis for selecting the higher of the two
sentences his choice should fall on the lower sentence. In all such
cases the law casts an obligation on the judge to make his choice
after carefully examining the pros and cons of each case. It must at
once be conceded that offenders of some particularly grossly brutal
crimes which send tremors in the community have to be firmly dealt
with to protect the community from the perpetrators of such crimes.
Where the incidence of a certain crime is rapidly growing and is
assuming menacing proportions, for example, acid pouring or bride
burning, it may be necessary for the courts to award exemplary
punishments to protect the community and to deter others from
committing such crimes. Since the legislature in its wisdom thought
that in some rare cases it may still be necessary to impose the
extreme punishment of death to deter others and to protect the
society and in a given case the country, it left the choice of
sentence to the judiciary with the rider that the judge may visit
the convict with the extreme punishment provided there exist special
reasons for so doing. …”
34. In Bachan Singh case (supra), while determining the
constitutional validity of the death penalty, this Court
has examined the sentencing procedure embodied in
Section 354(3) of the Code. Following issue was framed by
this Court in the aforesaid context:
“15. (i)… (ii)…whether the sentencing procedure provided in Section
354(3) of the Code of Criminal Procedure, 1973 (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 Penal Code with
death or, in the alternative, with imprisonment for life.”
35. To answer the said issue, this Court referred to and
considered Jagmohan Singh v. State of U.P. (which was
decided under the old Code) and culled out several
propositions from that decision. Keeping in view of the
changed legislative policy, this Court agreed with all the
observations in Jagmohan Singh case (supra) but for two-
first, that the discretion in the matter of sentencing is
to be exercised by the Judge after balancing all the
aggravating and mitigating circumstances of the crime and
second, that while choosing between the two alternative
sentences provided in Section 302 of the IPC, i.e.,
sentence of death and life imprisonment, the court is
principally concerned with the aggravating or mitigating
circumstances connected with the particular crime under
inquiry. This Court observed that whilst under the old
Code, both the sentence of death was the rule and life
imprisonment was an exception, Section 354(3) of the Code
has reversed the sentencing policy with the legislative
mandate that if a sentence of death is to be awarded,
special reasons need to be recorded by the Courts. That is
to say, the legislative policy now virtually obviated the
necessity of balancing the aggravating and mitigating
circumstances for the award of punishment in respect of an
offence of murder. The Court observed as follows in context
of departures from Jagmohan Singh case (supra):
“164. (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.
(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.”
36. In the aforesaid background this Court observed that
special reasons, in the context of the said provision,
obviously mean “exceptional reasons” founded on the
exceptionally grave circumstances relating to the crime as
well as the criminal. It being extremely difficult to
catalogue such special reasons, they have to be construed
in the facts of the case and relative weight has to be
given to mitigating and aggravating factors. This Court
observed that these two aspects are so intertwined that
isolation of one from the other would defeat the mandate of
law and held with hope that in view of the “broad
illustrative guidelines” laid down therein, the Courts:
“209. … will discharge the onerous function with evermore scrupulous
care and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3) viz. that for persons convicted of
murder, life imprisonment is the rule and death sentence an
exception.”
(Also: State of Maharashtra v. Goraksha Ambaji Adsul, (2011) 7 SCC 437;
Sangeet v. State of Haryana, (2013) 2 SCC 452; Sandesh v. State of
Maharashtra, (2013) 2 SCC 479)
37. In Swamy Shraddananda (2) v. State of Karnataka, (2008) 13
SCC 767 this Court opined that the term “special reasons”
as explained in the Bachan Singh case (supra) indicates a
relative category based on comparison with other cases
under Section 302 as under:
“44. The matter can be looked at from another angle. In Bachan Singh
it was held that the expression “special reasons” in the context of
the provision of Section 354(3) obviously means “exceptional
reasons” founded on the exceptionally grave circumstances of the
particular case relating to the crime as well as the criminal. It
was further said that on conviction for murder and other capital
offences punishable in the alternative with death under the Penal
Code, the extreme penalty should be imposed only in extreme cases.
In conclusion it was said that the death penalty ought not to be
imposed save in the rarest of rare cases when the alternative option
is unquestionably foreclosed. Now, all these expressions “special
reasons”, “exceptional reasons”, “founded on the exceptional grave
circumstances”, “extreme cases” and “the rarest of rare cases”
unquestionably indicate a relative category based on comparison with
other cases of murder. Machhi Singh, for the purpose of practical
application sought to translate this relative category into absolute
terms by framing the five categories. (In doing so, it is held by
some, Machhi Singh considerably enlarged the scope for imposing
death penalty that was greatly restricted by Bachan Singh).”
38. The said five categories of rarest of the rare crimes
delineated in Macchi Singh case (supra) are as follows:
“I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense
and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view
to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin
commits murder for the sake of money or reward (b) a cold-blooded
murder is committed with a deliberate design in order to inherit
property or to gain control over property of a ward or a person
under the control of the murderer or vis-à-vis whom the murderer is
in a dominating position or in a position of trust, or (c) a murder
is committed in the course of betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority
community, etc. is committed not for personal reasons but in
circumstances which arouse social wrath. For instance when such a
crime is committed in order to terrorise such persons and frighten
them into fleeing from a place or in order to deprive them of, or
make them surrender, lands or benefits conferred on them with a view
to reverse past injustices and in order to restore the social
balance.
(b) In cases of ‘bride burning’ and what are known as ‘dowry deaths’
or when murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman on account of
infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a family or
a large number of persons of a particular caste, community, or
locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not
have or has not provided even an excuse, much less a provocation,
for murder (b) a helpless woman or a person rendered helpless by old
age or infirmity (c) when the victim is a person vis-à-vis whom the
murderer is in a position of domination or trust (d) when the victim
is a public figure generally loved and respected by the community
for the services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.”
(emphasis supplied)
39. This Court has cautioned that though the aforesaid are
extremely important factors could not be taken as
inflexible, absolute or immutable, they must be perceived
only as indicators which the Courts must bear in mind while
deciding upon the sentence and assigning special reasons,
if required.
40. The Constitutional Bench of this Court in Shashi Nayar v.
Union, (1992) 1 SCC 96 has observed that the “special
reasons clause” means reasons, specific to the fact of a
particular case, which can be catalogued as justifying a
severe punishment and unless, such reasons are not recorded
death sentence must not be awarded. Under this provision,
if the basis for awarding the higher sentence can be
explained with reasonable accuracy, after examining the
pros and cons of sentencing options achieving proportional
balance with the severity of the crime committed only then
should the higher punishment be awarded. This Court has
noted that thus, Section 345(3) is a sufficient safeguard
against the arbitrary imposition of the extreme penalty and
unless the nature of crime and the circumstances of the
offender reveal that the sentence to life imprisonment
would be wholly inadequate, the Courts should ordinarily
impose a lesser punishment.
41. This Court in Sandesh v. State of Maharashtra, (2013) 2 SCC
479 has discussed the aforesaid principles and observed as
follows:
“21……it is not only the crime and its various facets which are the
foundation for formation of special reasons as contemplated under
Section 354(3) CrPC for imposing death penalty but it is also the
criminal, his background, the manner in which the crime was
committed and his mental condition at the relevant time, the motive
of the offence and brutality with which the crime was committed are
also to be examined. The doctrine of rehabilitation and doctrine of
prudence are the other two guiding principles for proper exercise of
judicial discretion.”
42. The aforesaid would reflect that under this provision the
legislature casts a statutory duty on the Court to state
reasons for choice of the sterner sentence to be awarded in
exceptional cases as against the rule of life imprisonment
and by necessary implication, a legal obligation to explain
them as distinguished from the expression “reasons”
follows. The legislative mandate of assigning “special
reasons” assures that the imposition of the capital
punishment is well considered by the Court and that only
upon categorization of the case as “rarest of rare”, thus
leaving no room for imposition of a less harsh sentence,
should the Court sentence the accused person to death.
43. Incontrovertibly, the judicial approach towards sentencing
has to be cautious, circumspect and careful. The Courts at
all stages- trial and appellate must therefore peruse and
analyze the facts of the case in hand and reach an
independent conclusion which must be appropriately and
cogently justified in the “reasons” or “special reasons”
recorded by them for imposition of life imprisonment or
death penalty. The length of the discussion would not be a
touchstone for determining correctness of a decision. The
test would be that reasons must be lucid and satisfy the
appellate Court that the Court below has considered the
case in toto and thereafter, upon balancing all the
mitigating and aggravating factors, recorded the sentence.
44. We must now briefly advert to the sentencing procedure
prescribed by law. Under Section 235(2) of the Code, the
Court on convicting an accused must unquestionably afford
an opportunity to the accused to present his case on the
question of sentence and under Section 354(3) record the
extraordinary circumstances which warrant imposition of
death sentence keeping in view the entire facts of the case
and the submissions of the accused. In doing so if, for any
reason, it omits to do so or does not assign elaborate
reasons and the accused makes a grievance of it before the
higher court, it would be open to that Court to remedy the
same by elaborating upon the said reasons. Even when the
reasons recorded by the Courts below do not conform to the
statutory mandate or the judicially evolved principles,
this Court, should reach the conclusion that harsher
sentence of death requires to be imposed, could supplement
them so as to justify the imposition of such sentence
instead of remanding the matter to Courts below for re-
consideration on the question of sentence. Further, should
this Court opine to the contrary that the facts and
circumstances of the case do not require imposition of
capital punishment and the ends of justice would be
achieved by a less harsh sentence, it could accordingly
commute the sentence awarded by the Courts below. This
Court in Dagdu case (supra) has observed that remand is an
exception, not the rule, and therefore ought to be avoided
as far as possible in the interests of expeditious, though
fair, disposal of cases.
45. Herein, it is not the case of the appellants that the
opportunity to be heard on the question of sentence
separately as provisioned for under Section 235(2) of the
Code was not provided by the Courts below. Further, the
Trial Court has recorded and discussed the submissions made
by the appellants and the prosecution on the said question
and thereafter, rejected the possibility of awarding a
punishment less harsh than the death penalty. However, the
High Court while confirming the sentence has recorded
reasons though encapsulated. The High Court has noticed the
motive of the appellants being non withdrawal of the case
by the informant and the ghastly manner of commission of
crime whereby six innocent persons as young as 3 year old
were charred to death and concluded that the incident
shocks the conscience of the entire society and thus
deserves nothing lesser but death penalty.
46. There being no impropriety by the Courts below in
compliance with the procedure prescribed under law for
sentencing the appellants, only the question of adequacy
and correctness of the special reasons assigned for
awarding sentence of death requires to be considered by us.
In our considered opinion, as noticed above, it is only
upon examination of the facts and circumstances of the case
could the adequacy of the special reasons recorded by the
Courts below be determined by us. Therefore, we would now
consider the second issue to determine whether at all the
case falls in the category of rarest of the rare offences.
Issue two: Does this case fall into the category of rarest of the rare
cases?
47. We are mindful of the principles laid down by this Court
in Bachan Singh v. State, (1980) 2 SCC 684 and affirmed in
Macchi Singh v. State of Punjab, (1983) 3 SCC 470 to be
observed on the sentencing policy in determining the rarest
of the rare crimes. In Bachan Singh case (supra) this Court
has held as follows:
"While considering the question of sentence to be imposed for the
offence of murder u/s 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."
48. In Machhi Singh case (supra), this Court has awarded death
sentence to the accused who had methodically in a
preplanned manner murdered seventeen persons of a village
including men, women and children. Therein, this Court has
besides outlining the five broad categories of rarest of
rare cases held that in order to apply the guidelines of
Bachan Singh case (supra) the following questions ought to
be answered:
“39. “(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?”
This Court has held that if the answer to the above is in affirmative,
then death sentence is warranted. This Court has further observed that
the motivation of the perpetrator, the vulnerability of the victim, the
enormity of the crime, the execution thereof are few of the many
factors which normally weigh in the mind of the Court while
awarding death sentence in a case terming it as the “rarest of the
rare” cases. While applying the test of rarest of the rare case, the
Court has to look into variety of factors like society's abhorrence,
extreme indignation and antipathy to certain types of crimes which
shake the collective conscience of the society.
49. This Court in Rajesh Kumar v. State, (2011) 13 SCC 706 has
noticed the observations and principles evolved in Bachan
Singh case (supra) resonating through the international
sentiments on death penalty, as follows:
“83. The ratio in Bachan Singh has received approval by the
international legal community and has been very favourably
referred to by David Pannick in Judicial Review of the Death
Penalty: Duckworth (see pp. 104-05). Roger Hood and Carolyn Hoyle
in their treatise on The Death Penalty, 4th Edn. (Oxford) have
also very much appreciated the Bachan Singh ratio (see p. 285).
The concept of “rarest of rare” which has been evolved in Bachan
Singh by this Court is also the internationally accepted standard
in cases of death penalty.
84. Reference in this connection may also be made to the right
based approach in exercising discretion in death penalty as
suggested by Edward Fitzgerald, the British Barrister. [Edward
Fitzgerald: The Mitigating Exercise in Capital Cases in Death
Penalty Conference (3-5 June), Barbados: Conference Papers and
Recommendations.] It has been suggested therein that right
approach towards exercising discretion in capital cases is to
start from a strong presumption against the death penalty. It is
argued that “the presence of any significant mitigating factor
justifies exemption from the death penalty even in the most
gruesome cases” and Fitzgerald argues:
“Such a restrictive approach can be summarised as follows: The
normal sentence should be life imprisonment. The death sentence
should only be imposed instead of the life sentence in the
‘rarest of rare’ cases where the crime or crimes are of
exceptional heinousness and the individual has no significant
mitigation and is considered beyond reformation.”
(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th Edn.,
Oxford, p. 285.)
85. Opposing mandatory death sentence, the United Nations in its
interim report to the General Assembly in 2000 advanced the
following opinion:
“The proper application of human rights law—especially of its
provision that ‘no one shall be arbitrarily deprived of his
life’ and that ‘no one shall be subjected to … cruel, inhuman or
degrading … punishment’—requires weighing factors that will not
be taken into account in the process of determining whether a
defendant is guilty of committing a ‘most serious crime’. As a
result, these factors can only be taken into account in the
context of individualised sentencing by the judiciary in death
penalty cases …. The conclusion, in theory as well as in
practice, was that respect for human rights can be reliably
ensured in death penalty cases only if the judiciary engages in
case-specific, individualised sentencing that accounts for all
of the relevant factors…. It is clear, therefore, that in death
penalty cases, individualised sentencing by the judiciary is
required to prevent cruel, inhuman or degrading punishment and
the arbitrary deprivation of life.”
(The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p.
281.)
50. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257,
this Court has reflected upon the aforesaid decisions and
culled out the principles as follows:
“76. 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 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.
(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.
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.”
51. This Court has consistently held that only in those
exceptional cases where the crime is so brutal, diabolical
and revolting so as to shock the collective conscience of
the community, would it be appropriate to award death
sentence. Since such circumstances cannot be laid down as a
straight jacket formula but must be ascertained from case
to case, the legislature has left it open for the Courts to
examine the facts of the case and appropriately decide upon
the sentence proportional to the gravity of the offence.
52. We would now notice the decisions of this Court to reflect
upon the various circumstances which have acted as
mitigating and aggravating factors in given facts to result
in commutation of sentence or confirmation of death
penalty; so as to examine the sentencing policy in the
backdrop of balance-sheet of such factors in the case at
hand.
Cases where death sentence is confirmed:
53. In Dagdu v. State of Maharashtra, (1977) 3 SCC 68, this
Court has observed as follows:
“83. Having considered the matter in all its aspects — penal,
juristic and sociogical — and having given our most anxious
consideration to the problem, we are of the opinion that Accused
3, 9, 10 and 11 deserve the extreme penalty of law and that there
is no justification for interfering with the sentence of death
imposed upon them.
84. Accused 3 put an end to four innocent lives, three small girls
ten years of age and a woman in her thirties. Accused 9, 10 and 11
committed the murders of Haribai, her nine-year old daughter and
her infant child. The victims had given no cause for the
atrocities perpetrated on them. They were killed as a child kills
flies. And the brutality accompanying the manner of killing defies
an adequate description. The luring of small girls, the gagging,
the cutting of their private parts, the ruthless defiling in order
to prevent identification of the victims and the mysterious motive
for the murders call for but one sentence. Nothing short of the
death sentence can atone for such callous and calculated
transgression of law. Morbid pity can have no place in the
assessment of murders which, in many respects, will remain
unparalled in the annals of crime. Accordingly, we confirm the
death sentence imposed on Accused 3, 9, 10 and 11.”
54. In Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 611
the accused had gone to the place of occurrence well
prepared carrying jerry cans containing petrol, sword,
pistol with two bullets, which showed his premeditation and
cold-blooded mind. In the incident five persons lost their
lives while the sole surviving lady survived with 70% burn
injuries. The murder was committed in a cruel, grotesque
and diabolical manner, and closing of the door of the house
was the most foul act by which the accused actually
intended to burn all the persons inside the room and
precisely that happened. Hence the Court did not find any
sentence less harsh than the death sentence.
55. In M.A. Antony v. State of Kerala, (2009) 6 SCC 220 all six
members of a family were murdered at their residence at
night. The motive was money, and the absence of the accused
from his own residence during the corresponding period and
recovery of clothes under Section 27 of the Evidence Act,
1872, fingerprints on the doorsteps of the house matching
with those of the accused, and recovery of scalp hair of
the accused from place of occurrence were damning
circumstantial evidence. Having regard to the chain of
circumstances and the diabolical manner of commission of
crime the death sentence was upheld.
56. In Jagdish v. State of M.P., (2009) 9 SCC 495 the assailant
murdered his wife and five children (aged 1 to 16 years) in
his own house. The murders were particularly horrifying as
the assailant was in a dominant position and a position of
trust as the head of the family. The assailant betraying
the trust and abusing his position murdered his wife and
minor children (youngest being the only son just 1 year
old). This Court held that the balance sheet of the
aggravating and mitigating circumstances was heavily
weighed against the assailant making it the rarest of rare
cases. Consequently the award of death sentence was just.
57. In Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434
the accused was a paying guest for a continuous period of
four years in lieu of a sum of Rs.500 for food and meals.
He brutally executed three innocent defenceless children
aged 8, 15 and 16, attempted to murder the father
(informant) and mother who survived the attack with
multiple injuries. There was no provocation or reason for
committing this ghastly act at a time when the children
were sleeping. There were several incised wounds (muscle-
deep or bone-deep) caused to the deceased. Considering the
brutality, diabolic, inhuman nature and enormity of the
crime (multiple murders and attacks), this Court held that
the mindset of the accused could not be said to be amenable
to any reformation. Therefore, it came under the rarest of
the rare category where not awarding a death sentence would
have resulted in failure of justice.
58. In Ram Singh v. Sonia, (2007) 3 SCC 1 the wife in collusion
with her husband murdered not only her stepbrother and his
whole family including three tiny tots of 45 days, 2½ years
and 4 years, but also her own father, mother and sister so
as to deprive her father from giving property to her
stepbrother and his family. The murders were committed in a
cruel, pre-planned and diabolic manner while the victims
were sleeping, without any provocation from the victim’s
side. It was held that the accused persons did not possess
any basic humanity and completely lacked the psyche or
mindset amenable to any reformation. It was a revolting and
dastardly act, and hence the case fell within the category
of the rarest of rare cases and thus death sentence was
justified.
59. In Holiram Bordoloi v. State of Assam, (2005) 3 SCC 793 the
accused persons were armed with lathis, and various other
weapons. They came to the house of the victim and started
pelting stones on the bamboo wall of the said house.
Thereafter, they closed the house from the outside and set
the house on fire. When the son, daughter and the wife of
the victim somehow managed to come out of the house, the
accused persons caught hold of them and threw them into the
fire again. Thereafter the elder brother who was staying in
another house at some distance from the house of the victim
was caught and dragged to the courtyard of the accused
where the accused cut him into pieces. It was held that
there was absence of any strong motive and the victims did
not provoke or contribute to the incident. The accused was
the leader of the gang, and the offence was committed in
the most barbaric manner to deter others from challenging
the supremacy of the accused in the village. It was held
that no mitigating circumstances to refrain from imposing
death penalty were found.
60. In Karan Singh v. State of U.P., (2005) 6 SCC 342 the two
appellants chased the deceased persons and butchered them
with axes and other weapons in a very dastardly manner.
After killing three adults, the appellants entered their
house and killed two children who in no way were involved
with the alleged property dispute with the appellants. It
was held that the sole intention here was to exterminate
the entire family. Thus, it was the rarest of the rare
case.
61. In Gurmeet Singh v. State of U.P., (2005) 12 SCC 107
appellant G, along with his friend L killed thirteen
members of his family including small kids for a flimsy
reason (objection of family of G to the visits and stay of
L at their house) while they were asleep. The award of
death sentence was held proper.
62. In State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224 the
accused deliberately planned and executed his two innocent
children, wife and brother-in-law when they were sleeping
at night. There was no remorse for such a gruesome act
which was indicated by the calmness with which he was
smoking “chilam” after the commission of the act. As it was
preplanned and after the entire chain of events and
circumstances were comprehended, the inevitable conclusion,
was that the accused acted in the most cruel and inhuman
manner and the murder was committed in an extremely brutal,
grotesque, diabolical, revolting and dastardly manner.
63. In Om Prakash v. State of Uttaranchal, (2003) 1 SCC 648 the
accused, a domestic servant killed three innocent members
and attempted to kill the fourth member of the family of
his employer in order to take revenge for the decision to
dispense with his service and to commit robbery. The death
sentence was upheld.
64. In Gurdev Singh v. State of Punjab, (2003) 7 SCC 258 the
appellants, having known that on the next day a marriage
was to take place in the house of the complainant and there
would be lots of relatives present in her house, came there
on the evening when a feast was going on and started firing
on the innocent persons. Thirteen persons were killed on
the spot and eight others were seriously injured. The
appellants thereafter went to another place and killed the
father and brother of PW 15. Out of the thirteen persons,
one of them was a seven-year-old child, three others had
ages ranging between 15 and 17 years. The death sentence
was held justified.
65. In Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199
the accused was accommodated by one of the victims (who was
his aunt) despite her large family, and she gave him an
opportunity to make an honest living as a tailor. The
accused committed the preplanned, cold-blooded murders of
the relatives and well-wishers (including one young child)
while they were sleeping. After the commission of the crime
the accused absconded from judicial custody for nearly four
years, which eliminated the possibility of any remorse or
rehabilitation. Held, the extreme penalty of death was
justified.
66. In Suresh v. State of U.P., (2005) 6 SCC 130 the brutal
murder of one of the accused’s brother and his family
members including minor children at night when they were
fast asleep with axe and chopper by cutting their skulls
and necks for a piece of land was considered to be a
grotesque and diabolical act, where any other punishment
than the death penalty was unjustified.
67. In Ranjeet Singh v. State of Rajasthan, (1988) 1 SCC 633
the entire family was murdered when they were fast asleep
and this Court observed as under:
“13. With regard to the sentence of death, there cannot be two
opinions. The manner in which the entire family was eliminated
indicates that the offence was deliberate and diabolical. It was
predetermined and cold-blooded. It was absolutely devilish and
dastardly.”
68. In Ramdeo Chauhan v. State of Assam, (2000) 7 SCC 455 the
accused committed a preplanned, cold-blooded brutal murder
of four inmates of a house including two helpless women and
a child aged 2½ years during their sleep with a motive to
commit theft. The accused also attacked with a spade
another inmate of the house, an old woman, and a neighbour
when they entered the house. The Court held that the young
age (22 years) of the accused at the time of committing the
crime was not a mitigating circumstance, and death penalty
was a just and proper punishment.
69. In Narayan Chetanram Chaudhary v. State of Maharashtra,
(2000) 8 SCC 457 there was a preplanned, calculated, cold-
blooded murder of five women, including one pregnant woman
and two children aged 1½ years and 2½ years, all inmates of
a house, in order to wipe out all evidence of robbery and
theft committed by two accused in the house at a time when
male members of the house were out. It was held that the
young age (20-22 years) of the accused persons cannot serve
as a mitigating circumstance.
70. In Surja Ram v. State of Rajasthan, (1996) 6 SCC 271 the
appellant murdered his brother, his two minor sons and an
aged aunt by cutting their neck with a kassi while they
were all sleeping. He also attempted to murder his
brother’s wife and daughter but they survived with serious
injuries. The dispute between them only related to putting
a barbed fence on a portion of their residential complex.
The death sentence was held to be justified.
71. In Ravji v. State of Rajasthan, (1996) 2 SCC 175 the
accused in a cool and calculated manner wanted to kill his
wife and three minor children while they were asleep. When
his mother intervened he injured her with an axe with an
intention to kill her. He then silently went to the
neighbour’s house and attempted to kill his neighbour’s
wife who was also asleep. When his neighbour intervened he
killed him too and fled from the place of occurrence and
tried to hide himself. The accused had a solemn duty to
protect his family members and maintain them but he
betrayed the trust reposed in him in a very cruel and
calculated manner without any provocation whatsoever. Hence
the death penalty had to be upheld.
72. In Sudam v. State of Maharashtra, (2011) 7 SCC 125 this
Court held that where an accused was found guilty of
committing murder of four children and a woman with whom he
was living with as husband and wife, the death penalty was
justified and observed:
“22. The manner in which the crime has been committed clearly shows
it to be premeditated and well planned. It seems that all the four
children and the woman were brought near the pond in a planned
manner, strangulated to death and the dead bodies of the children
thrown in the pond to conceal the crime. He not only killed Anita
but crushed her head to avoid identification. Killing four children,
tying the dead bodies in bundles of two each and throwing them in
the pond would not have been possible, had the appellant not
meticulously planned the murders. It shows that the crime has been
committed in a beastly, extremely brutal, barbaric and grotesque
manner. It has resulted in intense and extreme indignation of the
community and shocked the collective conscience of the society.
23. We are of the opinion that the appellant is a menace to the
society who cannot be reformed. Lesser punishment, in our opinion,
shall be fraught with danger as it may expose the society to peril
once again at the hands of the appellant. We are of the opinion that
the case in hand falls in the category of the rarest of rare cases
and the trial court did not err in awarding the death sentence and
the High Court confirming the same.”
73. In Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, this
Court confirmed the death sentence given to the appellant
who had committed multiple murders of members of his
family, who were none other than stepmother, brother and
sister in order to inherit the entire property of his
father. The appellant, in consultation with his mother
planned to eliminate the entire family of his stepmother,
and with this intention went to her house, closed the doors
and mercilessly inflicted 37 knife injuries on the vital
parts of the victims’ bodies.
74. In Ajitsingh Harnamsingh Gujral v. State of Maharashtra,
(2011) 14 SCC 401 the appellant was convicted for burning
wife and three grown up children. While awarding the
sentence of death this Court considered the following
circumstances which weighed in favor of the capital
punishment:
“91. In our opinion, a person like the appellant who instead of
doing his duty of protecting his family kills them in such a cruel
and barbaric manner cannot be reformed or rehabilitated. The balance
sheet is heavily against him and accordingly we uphold the death
sentence awarded to him.
92. In the present case the accused did not act on any spur of the
moment provocation. It is no doubt that a quarrel occurred between
him and his wife at midnight, but the fact that he had brought a
large quantity of petrol to his residential apartment shows that he
had pre-planned the diabolical and gruesome murder in a dastardly
manner.”
Cases where death sentence is commuted:
75. 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.
76. Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1
SCC 775 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.
77. 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 paedophile with “extremely
violent propensities”. Earlier, in 1998, he was convicted
of an offence under Section 354 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 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. 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.
78. In Rajesh Kumar case (supra) the appellant had murdered two
children. One of them was four-and-a-half year 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 the society and that the
State had not produced any evidence to show that he was
incapable of reform and rehabilitation.
79. Amit v. State of U.P., (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 and that the
possibilities of his reform over a period of years could
not be ruled out since there was no evidence of any earlier
offence committed by him.
80. In the present circumstances, we would place reliance upon
the observations of this Court in State of U.P. v.
Dharmendra Singh, (1999) 8 SCC 325. In this case, 6 accused
persons were charged with offence under Section 302 read
with 149 of the IPC for murdering 5 persons: an old man of
75 years, a woman aged 32 years, two boys aged 12 years and
a girl aged 15 years, at night when they were asleep by
inflicting multiple injuries to wreak vengeance. The Trial
Court while convicting them had awarded life sentence in
regard to 4 accused persons and after assigning reasons
awarded death sentence to the 2 others. In appeal the High
Court upheld the conviction of all accused persons and
while confirming life sentence on the 4 accused persons
came to the conclusion that the sentence of death was not
called for in respect to 2 accused persons who were
languishing in the death cell for 3 years and consequently
reduced the sentence to that of imprisonment of life. In
appeal, this Court in context of the argument that since
individual overt acts that have not been established, even
if the conviction is to be upheld, capital punishment
should not be granted, has observed as follows:
“15. We have carefully perused the evidence adduced in this case,
to the limited extent of examining whether the case in hand is a
case which could be termed as rarest of the rare cases so as to
invoke the extreme penalty of death. The learned Sessions Judge
while assigning special reasons for awarding the capital
punishment came to the conclusion that the crime in question was a
dastardly crime involving the death of 5 innocent human beings for
the purpose of achieving the sadistic goals of Dharmendra and
Narendra, the respondents herein, to avenge their respective
grouse against the complainant and his niece Reeta by eliminating
5 members of the family. Learned Sessions Judge distinguished the
case of the 4 other accused with that of these respondents based
on the motive and on the ground that these respondents were the
principal perpetrators of the crime. It is seen that the High
Court has concurred with this reasoning of the Sessions Judge.
However, the High Court on the ground that the accused have
languished in the death cell for 3 years, altered the sentence to
life imprisonment.
…
23. It is possible in a given set of facts that the court might
think even in a case where death sentence can be awarded, the same
need not be awarded because of the peculiar facts of that case
like the possibility of one or more of the accused being
responsible for offences less culpable than the other accused. In
such circumstances, in the absence of their being no material
available, to bifurcate the case of each accused person, the court
might think it prudent not to award the extreme penalty of death.
But then such a decision would rest on the availability of
evidence in a particular case. We do not think that a straitjacket
formula for awarding death sentence can be evolved which is
applicable to all cases. The facts of each case will have their
own implication on the question of awarding sentence. In Ronny
case (1998) 3 SCC 625, this Court on facts found extenuating
factors to curb the sentence which is clear from the following
extract from the said judgment: (SCC p. 654, para 47)
“From the facts and circumstances, it is not possible to predict
as to who among the three played which part. It may be that the
role of one has been more culpable in degree than that of the
others and vice versa. Where in a case like this it is not
possible to say as to whose case falls within the ‘rarest of the
rare’ cases, it would serve the ends of justice if the capital
punishment is commuted into life imprisonment.”
81. Further in Dharmendra Singh case (supra) this Court while
rejecting the mitigating circumstance of expectation of
survival due to reversal of sentence by the High Court,
observed:
“25…In a judicial system like ours where there is a hierarchy of
courts, the possibility of reversal of judgments is inevitable,
therefore, expectations of an accused cannot be a mitigating
factor to interfere in an appeal for enhancement of sentence if
the same is otherwise called for in law.
26. Taking into consideration the brutality of the attack, the
number of persons murdered, the age and infirmity of the
victims, their vulnerability and the diabolic motive, acts of
perversion on the person of Reeta, cumulatively we find the
sentence awarded by the trial court was just and proper. “
Mitigating and Aggravating Circumstances in the present case:
82. Having noticed the decisions of this Court on the said
aspect, we would revert to the factual position in this
case. Herein, the time, place, manner of and the motive
behind commission of the crime speak volumes of the pre-
mediated and callous nature of the offence. The
ruthlessness of the appellants is reflected through brutal
murders of the young, innocent children and wife of the
informant by burning them alive to avenge their cause in
the dark of the night; the cause being non-withdrawal of an
FIR filed by the informant for theft of his buffalo against
the appellant-A1. Further, from the record we gather that
only family members of the informant have come forward to
depose as the entire village must have been shocked with
the ghastly murders of the deceased persons and in such
circumstances would not have come forward to testify
against the appellants who already had translated the
threats given to the informant in village panchayat into a
shocking reality. While our experience reminds us that
civilized people generally unsuccinctly when the crime is
committed infact in their presence, withdraw themselves
both from the victim and the vigilante unless inevitable
and consider that crime like civil disputes must restrict
itself to the two parties, it also evidences for the threat
the incident had instilled amongst the villagers that none
in such close knit unit besides the sanguine relatives had
come forth to testify against the accused.
83. The mitigating circumstances elaborated upon by Shri Mishra
in respect of comparatively young age of the appellants
holds no ground, their army background and their custodial
behavior fail to outweigh the aggravating factors in the
present case. The argument that the appellants are not
“antisocial elements” fails into inception in the light of
the effect of the occurrence reflected through the
abstinence of the villagers from deposing against them at
the trial.
84. However, in the present case, while taking an overall view,
no overt act in the commission of crime could be attributed
to A3. The role played by A3 during commission of the crime
as established was to hold the barrels of kerosene along
with one other. While determining the gravity of the
offence committed by the appellants it must be noticed that
it is only A1 who had threatened the informant of burning
his house in case the FIR against his family and him were
not withdrawn. Further, A1 during the occurrence not only
scripted and instructed the rest of the unlawful assembly
but also lighted the matchstick to burn the house as well
informant’s body. A2, pushed the informant to the ground
and later fired at him.
85. Further, in respect of the mitigating factors of lack of
criminal antecedents or probabilities of the appellants to
be menace to the society, we would re-iterate the
observations of this Court in Gurdev Singh v. State of
Punjab, (2003) 7 SCC 258 that it is indeed true that the
underlying principle of our sentencing jurisprudence is
reformation and there is nothing in evidence to show that
the appellants have been a threat or menace to the society
at large besides the FIR regarding the theft of buffalo. It
is also true that we cannot say that they would be a
further menace to the society or not as we live as
creatures saddled with an imperfect ability to predict the
future. Nevertheless, the law prescribes for future, based
upon its knowledge of the past and is being forced to deal
with tomorrow’s problems with yesterday’s tools.
86. However, in the peculiar facts of this case, the
possibility of A3 being less culpable than the other
accused cannot be answered in affirmative. Therefore, in
our considered view, we do not deem it proper to sentence
A3 to death in light of there being no overt act
attributable to him and sentence to imprisonment till the
end of his life would appropriately serve as punishment
proportional to the degree of offence committed by him.
87. In respect of A1 and A2, we are of the considered view that
the instant case falls into such category of rarest of the
rare cases where culpability has assumed the proportion of
extreme depravity and the appellant-accused are perfect
example of a blood thirsty, scheming and hardened criminals
who slayed seven innocent lives to quench their thirst for
revenge and such revenge evolving out of a fellow citizens
refusal to abstain from resorting to machinery of law to
protect his rights. The entire incident is extremely
revolting and shocks the collective conscience of the
community. The acts of murder committed by the appellants
are so gruesome, merciless and brutal that the aggravating
circumstances far outweigh the mitigating circumstances.
88. We now proceed to examine such special reasons which negate
the possibility of any sentence but for death penalty.
Herein, A1 and A2 have committed a cold blooded murder in a
pre-ordained fashion without any provocation whatsoever.
The motive behind the gruesome act was to avenge the act of
informant in approaching the machinery of law enforcement
inspite of threats by the appellants.
The victims were five
innocent children and wife of the informant who were
sleeping unalarmed when the appellants came and locked them
inside their house while it was set ablaze.
Further, wrath
of A1 and A2 is reflected in their act of first gagging the
informant, thereafter attempting to burn him alive and
later, when he tried to escape, firing at him thereby
leaving no stone unturned in translating their threats into
reality.
As a result of the aforesaid incident, having
witnessed the threats of burning given by the A1 to the
informant tuned into reality, none but the family of the
deceased-informant came forth to depose against the
appellant-accused persons during the trial.
The crime,
enormous in proportion having wiped off the whole family,
is committed so brutally that it pricks and shocks not only
the judicial conscience but even the collective conscience
of the society.
It demands just punishment from the Court
and the Court is bound to respond within legal parameters.
The demand for justice and the award of punishment have to
be in consonance with the legislative command and the
discretion vested in the Courts.
89. On the question of striking a delicate balance between the
proportionality of crime to the sentencing policy, Lord
Denning has observed as follows on the very purpose of
imposition of a punishment:
“…the punishment is the way in which society expresses its
denunciation of wrong doing; and, in order to maintain respect for
the law, it is essential that the punishment inflicted for grave
crimes should adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to consider the
objects of punishments as being a deterrent or reformative or
preventive and nothing else... The truth is that some crimes are so
outrageous that society insists on adequate punishment, because the
wrong doer deserves it, irrespective of whether it is a deterrent or
not.”
90. In light of the aforesaid, having regard to the gravity of
the offence committed, we are of the considered opinion
that with regard to A1 and A2 this case falls into the
category of rarest of the rare cases and is not a case
where imprisonment for life is an adequate sentence and
thus, constrained to reach the inescapable conclusion that
death sentence imposed on A1 and A2 be confirmed.
91. Therefore, the sentence of death imposed on A1 and A2 is
confirmed and the sentence awarded to A3 is commuted to
life imprisonment till the rest of his life.
92. The order of stay on the execution of the capital
punishment of A1 and A2 is vacated.
93. The appeals are disposed of in the aforesaid terms.
.............................J.
(H. L. DATTU)
.............................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
.............................J.
(M. Y. EQBAL)
NEW DELHI;
SEPTEMBER 19, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.249-250 OF 2011
DEEPAK RAI Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
WITH
CRIMINAL APPEAL NOS.1747-1748 OF 2011
JAGAT RAI AND ANR. Appellant(s)
VERSUS
STATE OF BIHAR Respondent(s)
J U D G M E N T
H.L. Dattu, J:
1. These appeals are directed against the judgment and order
passed by the High Court of Judicature at Patna in Death
Reference No. 6 of 2009 and Criminal Appeal(DB) Nos. 989 of
2009 and 158 of 2010, dated 19.08.2010. By the impugned
judgment and order, the High Court has confirmed the
judgment of conviction, dated 17.09.2010 and order of
sentence, dated 30.10.2009 passed by the Additional
Sessions Judge cum FTC No. 2, Vaishali at Hazipur in
Sessions Trial No. 195 and 571 of 2006, whereby the learned
Sessions Judge has convicted the three accused-appellants
for offence under Sections 120B, 148, 302 read with 149,
307 read with 149, 326, 429, 436 and 452 of Indian Penal
Code, 1860 (for short ‘the IPC’) and sentenced them to
death.
Facts:
2. The Prosecution case in a nutshell is: On the fateful night
of 01.01.2006, the deceased informant (PW-7) was sleeping
in the Varanda of his house and his wife alongwith the
children, two daughters aged 12 and 10 years, respectively
and three sons aged 8, 6 and 3 years, respectively were
sleeping in the room inside the house. At around 01.00
A.M., he was awakened by the sound of footsteps of several
people. In the dim light of a night bulb and further from
their voices, he identified the persons who had come near
his house armed with lethal weapons as appellant-accused
persons and nine other villagers besides 10-11 unknown
persons. Before the informant could escape, appellant-
accused-Jagat Rai(A1) and Deepak Rai(A2) caught hold of him
and pushed him on the ground whereafter 3-4 unknown persons
got over his body and gagged him. Then A1 instructed few
others to surround the house from all sides and sprinkle
kerosene over it, while the other accused persons locked
the door of the room where the informant’s wife was
sleeping alongwith the children and set the house on fire
trapping them inside. Thereafter, they sprinkled kerosene
over the informant’s body and held him to the ground while
A1 set the informant’s mouth on fire by lighting a
matchstick. Upon rising of a blazing flash of fire, the
accused persons fled away leaving the informant behind.
While the informant also attempted to escape, A2 fired at
him but the informant managed an escape and raised alarm.
On hearing such noise, the informant’s four brothers and
other family members who resided in the adjoining houses
woke up, reached the spot and witnessed the accused persons
running away while the informant was on fire. Until then
the fire in informant’s house had reached its enormity,
swallowing the informant’s family and injuring the buffalo
and calf on the property. The informant (PW-7) was rushed
to the Primary Health Centre, Raghopur.
3. The fardbayan was recorded at 7:30 AM, on the basis of
which an FIR was registered against the three appellant-
accused and few others for the offence under Sections 147,
148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the
IPC at 9:00 AM on 01.01.2006. The motive of the occurrence
was alleged to be the informant’s refusal even after
consistent threats by A1 to withdraw the FIR lodged by him
for the theft of informant’s buffalo against A1 and his
family, in pursuance of which two members of his family
were arrested. Upon investigation, the chargesheet was
drawn against the aforesaid accused persons on 21.03.2006.
The learned Judicial Magistrate, First Class, Hazipur,
Vaishali bifurcated the case of the absconded accused
persons-A1, A2 and 8 others and committed the case of
Bacchababu Rai (A3) and 5 others for trial as Sessions
Trial No. 195 of 2006, by order dated 06.05.2006. Upon
arrest of the accused persons-A1, A2 and one other, their
case was separated from other absconder-accused persons and
committed to trial as Sessions Trial No. 571 of 2006, by
order dated 15.12.2006.
4. While in Sessions Trial No. 195 of 2006, 17 witnesses were
examined and 14 exhibits were produced, in Sessions Trial
No.571 of 2006, 14 witnesses were examined and 11 exhibits
were produced by the prosecution. Since both the cases
arose out of the same FIR, they were consolidated by order
dated 12.01.2008, whereafter their trial proceeded
together. While A2 examined 8 witnesses, other two accused
persons- Binay Rai and Ranjay Rai examined five and three
witnesses, respectively in their defence.
5. Since the evidence of prosecution witnesses recorded in the
two trials corroborates the prosecution case in material
particulars, brevitatis causa and to avoid repetition we
would only notice them once. The informant (PW-7) has
identified the appellant-accused persons, supported the
prosecution case in his evidence and testified in respect
of the time and manner of occurrence of the fateful
incident and the motive of the accused persons. PWs 1, 2, 3
and 4 are the brothers of PW-7 who resided adjacent to PW-
7’s house. They have identified the accused persons and
further corroborated the prosecution case in respect of
time of occurrence and motive of the appellant-accused
persons. PW-1 has stated that as soon as he heard PW-7’s
shrieks and noise from the blazing fire, he rushed outside
his house and witnessed the accused persons fleeing away.
He found PW-7 on fire and immediately covered him with a
blanket to douse it; whereafter, he along with others
attempted to set the fire off at PW-7’s house but the fire
having transformed into a conflagration it was too late to
save the six deceased persons. PW-5 (wife of PW-2), PW-6
(mother of PW-7), PW-14 (wife of PW-1), PW-15 (sister of PW-
7) and PW-16 (wife of PW-4) have also supported the
prosecution case in respect of PW-1’s account of the
incident, i.e., the fleeing away of the three appellant-
accused persons along with others and the motive of the
accused persons behind the incident. PW-8, the Doctor who
conducted post mortem examination of the six deceased
persons, has corroborated the prosecution case that the
death occurred by 100% burn injuries. PW-10, the Doctor who
treated PW-7, has testified in respect of the injuries
suffered by PW-7. His evidence alongwith the post-mortem
report corroborate the time and manner of the fateful
incident. Further, PW-11 (the Investigating Officer)
supported the prosecution case with regard to the time and
place of the occurrence and the presence of charred dead
bodies of the six deceased persons. The Trial Court
discarded the testimonies of the defence witnesses at the
outset and proceeded with the trial.
6. Upon meticulous consideration of the evidence on record and
the submissions made by the parties, the learned Sessions
Judge has observed that even though the witnesses examined
by the prosecution are related to the victims, their
testimonies when considered with due care and caution are
corroborated by the evidence of informant (PW-7), the post
mortem reports, evidence of the Doctors(PW-9 and 10) and
the evidence of PW-11, the Investigating Officer and
therefore, cannot be rejected on the prima facie ground of
them being interested witnesses. The Trial Court has
believed the aforesaid evidence corroborating the
prosecution case in respect of A1, A2 and A3; however,
doubted the presence of other accused persons since their
names have neither been mentioned in the fardbayan nor has
the evidence produced against them proved their offence
beyond reasonable doubt. In light of the aforesaid
observations, the Trial Court has reached the conclusion
that the three appellant-accused persons are guilty of the
aforesaid offence and has convicted them accordingly while
acquitting the others, by judgment dated 17.09.2009.
Further, after affording an opportunity of hearing to the
appellant-accused persons on the question of sentence, the
Trial Court has sentenced them to death, by order dated
30.10.2009, relevant paragraphs of which are reproduced as
under:
“Heard both sides on the question of sentence on behalf of the held
guilty accused Bachcha Babu Rai, Jagat Rai, Bipat Rai alias Deepak
Rai, it has been submitted that before this, they have not been
punished in any case of them Bipat Rai @ Deepak is a retired
military personnel. Keeping in mind, their age has also first
conviction, minimum of sentence may be inflicted.
On behalf of the prosecution it has been said that the guilty
held persons Bachcha Babu Rai, Jagat Rai, Bipat Rai@ Deepak Rai have
committed a heinous offence and their offence falls under the
category of RARE OF RAREST. Their heinous crime has ruined the
informant of this case, his wife and five children. So far Bipat
Rai is concerned, he is a retired military personnel his conduct
should be all the more decent. They are not of tender age nor old.
They do not deserve any mercy and they deserve death sentence. In
the light of the reasoning of both sides as also on an appreciation,
it is manifest, that the occurrence is of night when the informant,
his wife and five minor children and cattle all have been burnt to
death. The informant also subsequently died in this way, the entire
family is ruined. In the light of the guidelines as given by
Hon’ble Supreme Court, this case falls under the heading of RARE OF
RAREST cases. Because of this the guilty held accused persons
Bachcha Babu Rai, Jagat Rai and Bipat Rai allias Deepak Rai are
sentenced to death or offence u/s 302/ 149 IPC. …”
7. Aggrieved by the aforesaid judgment and order, the three
appellant-accused persons filed appeals before the High
Court which were heard alongwith the Death Reference No. 6
of 2009 and disposed of by a common judgment and order,
dated 19.08.2010. The High Court has elaborately dealt with
the evidence on record and extensively discussed the
judgment and order of the Trial Court in order to ascertain
the correctness or otherwise of the conviction and sentence
awarded to the appellant-accused persons. The High Court
has observed that since, the informant is the only witness
who was present at the scene of crime, his testimony alone
could substantiate upon the specific role of accused
persons in the commission of the ghastly offence. In so far
as the identification of the appellant-accused persons, the
High Court has observed that the informant in the fardbeyan
specifically mentions their names and, infact, attributes
specific roles to them in the commission of the offence,
i.e., A1 commanding the house to be set on fire and
lighting the matchstick to set the informant’s mouth on
fire and later, when the informant was attempting to
escape, A2 firing at the informant. Further, that during
the commission of the offence the accused persons were in
close proximity to the informant and the presence of dim
light of bulb in the night and the illumination by flames
of burning house coupled with them being known to the
informant establishes their identity in the evidence of
informant, which is supplemented and strengthened by the
evidence of PWs 1, 2, 3, 4, 5 and 6. The High Court has
further observed that the prosecution case in respect of
the time and place of occurrence and the factum of accused
persons fleeing the spot of occurrence immediately after
setting the house on fire causing death of six persons by
burning them alive and injury to the informant has been
well established by cogent, reliable and unimpeachable eye-
witnesses and further corroborated by the testimonies of
the Doctors, post-mortem report, medical report and the
evidence of Investigating Officer. On the basis of the
aforesaid, the High Court has concluded towards the guilt
of the accused appellants and sentenced them as follows:
“…since the occurrence is ghastly murder of wife and five children
of the informant by closing in room for not withdrawing the case of
theft of buffalo shocked the entire community bringing the case in
the category of rare of rarest to attract the maximum punishment and
hence the reference is answered in the affirmative and I do not find
any merit in the two appeals and hence the appeals are dismissed……”
8. Aggrieved by the aforesaid conviction and sentence, the
appellants are before us in these appeals. The appeals
before us are limited to the question of sentence.
Submissions:
9. We have heard Dr. Sumant Bharadwaj learned counsel
appearing for A2, Shri Ramesh Chandra Mishra, learned
counsel appearing for A1 and A3 and Shri Nagendra Rai,
learned senior counsel appearing for the respondent-State.
10. Dr. Bharadwaj would submit that the Courts below have erred
in sentencing A2 as the reasons recorded by the Courts
below do not conform to the statutory mandate prescribed
under Section 354(3) of the Code of Criminal Procedure,
1973 (for short ‘the Code’), which require the judgment to
record “reasons” in case of sentence of life imprisonment
and “special reasons” in case of death sentence. He would
submit that the since no extraordinary reasons have been
assigned by the Courts below to sentence the appellant to
death instead of a less harsher sentence and that this
Court in appellate jurisdiction cannot go into the same for
the first time while confirming the death sentence, the
matter requires to be remanded to the Trial Court for fresh
consideration on the question of sentence as per Section
354(3) of the Code. Further, he would place reliance upon
the judgments of this Court in Ambaram v. State of M.P.,
(1976) 4 SCC 298, Balwant Singh v. State of Punjab, (1976)
1 SCC 425, Dagdu v. State of Maharashtra, (1977) 3 SCC 68,
Muniappan v. State of T.N., (1981) 3 SCC 11 and Rajesh
Kumar v. State, (2011) 13 SCC 706; wherein this Court has
held that “special reasons” are essential for awarding
death sentence under Section 354(3) of the Code and in
absence of such reasons has commuted the sentence passed by
the Courts below from death to life imprisonment and submit
that since, in the instant case, no “special reasons” were
recorded by the Courts below while sentencing the
appellants, the sentence of the appellants ought to be
commuted to life imprisonment.
11. Shri Mishra would assail the sentence awarded by the Trial
Court and confirmed by the High Court and submit that in
the instant case mitigating circumstances overwhelmingly
outweigh the aggravating circumstances and therefore, ends
of justice would only be achieved by commuting the sentence
of the two appellant-accused persons, A1 and A3, from death
to imprisonment for life. He would put forth the following
factors in support of his submission:
“Mitigating Circumstances:
1. Appellants are not hard core criminals,
2. They are not threat/ menace to the Society,
3. They have no criminal antecedent/ background,
4. They are not antisocial elements,
5. Their conduct in Jail has been satisfactory,
6. The State has failed to prove that they are incapable of
being reformed
7. They have been in Jail for about seven years,
8. Delay of seven years in execution of death sentence confirmed
in death anticipating imminent death any moment,
9. Death sentence is exception and life-imprisonment is rule,
10. Global move to abolish death sentence. 138 nations have
abolished death sentence while 59 countries including India
have retained death sentence. (2009) 6 SCC 498. Relevant
page- 544, paras 111-112,
11. Jagat Rai at the time of commission of offence was 48 years
while Bachcha Babu Rai was 43 years, comparatively young,
12. Offence was committed when the appellant were under the
influence of extreme of mental disturbance due to pendency of
criminal case,
13. There is every probability that the appellants can be
reformed and rehabilitated,
14. All the four main objectives which state intends to achieve
namely deterrence, prevention, retribution and reformation
can be achieved by keeping the appellants alive.
Aggravating Circumstances:
1. It was a planned, cold-blooded brutal murder,
2. Entire family was wiped out.…”
12. A contrario Shri Rai would support the judgment and order
passed by the Courts below convicting the appellants of the
aforesaid offence and sentencing them to death. He would
submit that the reasons recorded by the Courts below fall
within the statutory requirements under Section 354(3) of
the Code as well as the parameters laid down by this Court
for recording “special reasons” while sentencing a convict
to death. He would distinguish the cases cited by Shri
Bharadwaj as cases wherein the sentence of the accused
persons was commuted due to reasons besides absence of
“special reasons” for sentencing the accused therein in the
judgments and orders of the Courts below and further place
reliance upon the decision of this Court in Gurdev Singh v.
State of Punjab, (2003) 7 SCC 258 amongst others, wherein
this Court has sentenced the accused persons therein who
were responsible for causing the death of fifteen persons,
besides causing grievous injuries to eight others to death
after balancing the aggravating and mitigating
circumstances.
13. We have given our anxious consideration to the materials on
record in its entirety, the submissions made by the learned
counsel for the parties and the judgments and orders of the
Courts below.
Issues for consideration:
14. The questions which fall for our consideration and decision
are first, whether the reasons assigned by the Courts below
while sentencing the appellants are “special reasons” under
Section 354(3) of the Code and second, whether the offence
committed by the appellants fall into the category of
“rarest of the rare” cases so as to warrant death sentence.
Cases cited by Shri Bharadwaj:
15. At the outset we would examine the decisions relied upon by
Dr. Bharadwaj and examine whether at all should the
sentence in the present case, for lack of special reasons
being assigned by the Trial Courts as well as the High
Courts, ought to be commuted to imprisonment for life.
16. In Ambaram case (supra), the appellant-accused was tried
along with four others for murder of two persons. It was
the appellant therein who shot one while his companions
assaulted the other to death with sharp-edged weapons and a
lathi. He was convicted under Section 302 of the IPC by the
Trial Court and sentenced to death alone by the Trial Court
as well as the High Court against which he had approached
this Court by filing a special leave petition. It is
pertinent to note that his appeal was limited to the
question of sentence. This Court has noticed the change in
the law introduced under Section 354(3) of the Code in 1973
which confers discretion on the Courts to inflict the death
sentence or the sentence of life imprisonment each
according to the circumstances and exigencies of each case
but enjoins duty upon them to justify it by giving special
reasons and reasons, respectively. This Court has observed
as follows:
“1. …The High Court has not given any special reasons why
Ambaram has been singled out for the award of the extreme penalty.
Nor do we find any such reason to treat him differently in the
matter of sentence from his companions who have been awarded the
lesser penalty. On this short ground we allow this appeal and
commute Ambaram’s death sentence to that of imprisonment for life.”
(emphasis supplied)
17. In Balwant Singh v. State of Punjab, (1976) 1 SCC 425 this
Court has observed as follows:
“4. …On the facts of this case, it is true that the appellant had
a motive to commit the murder and he did it with an intention to
kill the deceased. His conviction under Section 302 of the Penal
Code was justified but the facts found were not such as to enable
the Court to say that there were special reasons for passing the
sentence of death in this case.”
(emphasis supplied)
Thereafter, this Court has observed the error committed by the High
Court in applying the principle of extenuating circumstances under the
older Code even after the present Code coming into force in 1973 which
requires the Court to assign special reasons while awarding death
penalty and observed the follows:
“5. The High Court has referred to the two decisions of this Court
namely in Mangal Singh v. State of U.P., (1975) 3 SCC 290 and in
Perumal v. State of Kerala, (1975) 4 SCC 109 and has then said:
“There are no extenuating circumstances in this case and the
death sentence awarded to Balwant Singh appellant by the
Sessions Judge is confirmed ....”
As we have said above, even after noticing the provisions of
Section 354(3) of the new Criminal Procedure Code the High Court
committed an error in relying upon the two decisions of this Court
in which the trials were held under the old Code. It wrongly
relied upon the principle of absence of extenuating circumstances
— a principle which was applicable after the amendment of the old
Code from January 1, 1956 until the coming into force of the new
Code from April 1, 1974. In our judgment there is no special
reason nor any has been recorded by the High Court for confirming
the death sentence in this case. We accordingly allow the appeal
on the question of sentence and commute the death sentence imposed
upon the appellant to one for imprisonment for life.”
(emphasis supplied)
18. In Muniappan v. State of T.N., (1981) 3 SCC 11, this Court
has observed that not only has the Trial Court failed to
provide adequate hearing to the accused under Section
235(2), but also it as well as the High Court have not
assigned appropriate reasons while awarding and confirming
the sentence of the accused, respectively and thus, reached
the conclusion that the sentence of death could not be
imposed.
19. Further, in Dagdu case (supra) and Rajesh Kumar case
(supra) this Court has considered the facts and
circumstances of the case in its entirety while balancing
the aggravating and mitigating circumstances to decide upon
the adequacy of sentence awarded by the Courts below and
upon reaching such satisfaction that the case did not fall
into the category of “rarest of the rare” warranting
“special reasons” for the award of death sentence has
commuted the sentence of the accused.
20. Thus in the aforementioned cases, this Court has upon
examination of both-the evidence on record and the
reasoning of the Courts below while sentencing the accused
reached an independent conclusion that the facts and
circumstances of the case do not warrant imposition of
sentence of death. Therefore, it is not the absence or
adequacy of “special reasons” alone what weighed in the
mind of this Court while commuting the sentence. The facts
in toto and procedural impropriety, if any loomed large in
exercising such discretion. Hence, the reliance placed on
the aforementioned decisions is rejected.
Scope of Article 136 vis-à-vis examination of “special reasons”
21. Further, we are unable to accept the submission that in any
case the failure on the part of the Court, which has
convicted an accused and heard him on the question of
sentence but failed to express the “special reasons” in so
many words, must necessarily entail a remand to that Court
for elaboration upon its conclusion in awarding the death
sentence for the reason that while exercising appellate
jurisdiction this Court cannot delve into such reasons.
22. Since the appellants are before us by way of an appeal by
special leave, we would first examine the scope of
jurisdiction of this Court under Article 136 of the
Constitution of India vis-à-vis criminal appeals.
23. The appellate jurisdiction vested in this Court by virtue
of Article 136 is not plain statutory but expansive and
extraordinary. The Court exercises its discretion and
grants leave to appeal in cases where it is satisfied that
the same would circumvent a grave miscarriage of justice.
Such jurisdiction is not fettered by rules of criminal
procedure but guided by judicially evolved principles.
24. We are fortified by the decision of this Court in State of
U.P. v. Dharmendra Singh, (1999) 8 SCC 325, where while
examining the applicability of Section 377(3) of the Code
to an appeal under Article 136 has observed as follows:
“10. …A perusal of this section shows that this provision is
applicable only when the matter is before the High Court and the
same is not applicable to this Court when an appeal for enhancement
of sentence is made under Article 136 of the Constitution. It is to
be noted that an appeal to this Court in criminal matters is not
provided under the Code except in cases covered by Section 379 of
the Code. An appeal to this Court under Article 136 of the
Constitution is not the same as a statutory appeal under the Code.
This Court under Article 136 of the Constitution is not a regular
court of appeal which an accused can approach as of right. It is an
extraordinary jurisdiction which is exercisable only in exceptional
cases when this Court is satisfied that it should interfere to
prevent a grave or serious miscarriage of justice, as distinguished
from mere error in appreciation of evidence. While exercising this
jurisdiction, this Court is not bound by the rules of procedure as
applicable to the courts below. This Court’s jurisdiction under
Article 136 of the Constitution is limited only by its own
discretion (see Nihal Singh v. State of Punjab, AIR 1965 SC 26. In
that view of the matter, we are of the opinion that Section 377(3)
of the Code in terms does not apply to an appeal under Article 136
of the Constitution.
11. This does not mean that this Court will be unmindful of the
principles analogous to those found in the Code including those
under Section 377(3) of the Code while moulding a procedure for the
disposal of an appeal under Article 136 of the Constitution. Apart
from the Supreme Court Rules applicable for the disposal of the
criminal appeals in this Court, the Court also adopts such analogous
principles found in the Code so as to make the procedure a “fair
procedure” depending on the facts and circumstances of the case.”
(emphasis supplied)
25. More so, it is settled law that an appeal by special leave
under Article 136 is a continuation of the original
proceedings. In Moran M. Baselios Marthoma Mathews II v.
State of Kerala, (2007) 6 SCC 517, this Court categorically
observed as follows:
“13. We, therefore, are of the opinion that despite the fact that
the appellants had insisted upon before the High Court for issuance
of a writ or in the nature of mandamus upon the State or its
officers for the purpose of grant of police protection as this Court
has exercised its appellate jurisdiction under Article 136 of the
Constitution of India, it can and should go into that question as
well viz. as to whether the writ petition itself could have been
entertained or not, particularly, when the appeal is a continuation
of the original proceedings.”
26. Further, this Court in Netai Bag v. State of W.B., (2000) 8
SCC 262 while observing that the scope of an appeal under
Articles 136 and 226 cannot be wider than the earlier
proceedings, has noticed that the appeals under said
provisions are continuation of the original proceedings.
27. Thus, jurisdiction of this Court in appeal under Article
136 though circumscribed to the scope of earlier
proceedings is neither fettered by the rules of criminal
procedure nor limited to mere confirmation or rejection of
the appeal. This Court while considering the question of
correctness or otherwise of the sentence awarded by the
Courts below has exercised discretionary jurisdiction under
Article 136 and hence can not only examine the reasons so
assigned under Section 354(3) but also substantiate upon
the same, if need so be.
28. With the aforesaid in view, let us now examine the issues
before us.
Issue one: “Special reasons” under Section 354(3) of the Code
29. Under Section 367(5) of the Code of Criminal Procedure,
1898 (for short “old Code”), the normal sentence to be
awarded to a person found guilty of murder was death and
imprisonment for life was an exception. The Amending Act 26
of 1955 amended Section 367(5) of the old Code resulting in
vesting of discretion with the Court to inflict the
sentence of life imprisonment or death each according to
the circumstances and exigencies of the case. The amended
Section 367(5) of the old Code reads as follows:
“367. (5) 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.”
30. The present Code which was legislated in 1973 brought a
shift in the then existing penological trend by making
imprisonment for life a rule and death sentence an
exception. It makes it mandatory for the Court in cases of
conviction for an offence punishable with imprisonment for
life to assign reasons in support of the sentence awarded
to the convict and further ordains that in case the Court
awards the death penalty, “special reasons” for such
sentence shall be stated in the judgment. It 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."
31. For the first time, this shift in sentencing policy has
been observed by Krishna Iyer J. (as he then was) in Ediga
Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, as
follows:
“18. It cannot be emphasised too often that crime and punishment are
functionally related to the society in which they occur, and Indian
conditions and stages of progress must dominate the exercise of
judicial discretion in this case.
…
21. It is obvious that the disturbed conscience of the State on the
vexed question of legal threat to life by way of death sentence has
sought to express itself legislatively, the stream of tendency being
towards cautious, partial abolition and a retreat from total
retention.”
(Also Ambaram case (supra), Joseph v. State of Goa, (1977) 3 SCC
280, Triveniben v. State of Gujarat)
32. Further, this Court in Harnam v. State of U.P., (1976) 1
SCC 163 supplemented the aforesaid observations and noted
as follows:
“4. …The seminal trends in current sociological thinking and penal
strategy, tampered as they are by humanistic attitude and deep
concern for the worth of the human person, frown upon death penalty
and regard it as cruel & savage punishment to be inflicted only in
exceptional cases. It is against this background of legislative
thinking which reflects the social mood and realities and the
direction of the penal and procedural laws that we have to consider
whether the tender age of an accused is a fetor contra-indicative of
death penalty.”
33. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 this
Court has examined the purpose of inclusion of “special
reasons” clause as follows:
“9. … When the law casts a duty on the judge to state reasons it
follows that he is under a legal obligation to explain his choice of
the sentence. It may seem trite to say so, but the existence of the
“special reasons clause” in the above provision implies that the
court can in fit cases impose the extreme penalty of death which
negatives the contention that there never can be a valid reason to
visit an offender with the death penalty, no matter how cruel,
gruesome or shocking the crime may be… While rejecting the demand of
the protagonist of the reformatory theory for the abolition of the
death penalty the legislature in its wisdom thought that the
“special reasons clause” should be a sufficient safeguard against
arbitrary imposition of the extreme penalty. Where a sentence of
severity is imposed, it is imperative that the judge should indicate
the basis upon which he considers a sentence of that magnitude
justified. Unless there are special reasons, special to the facts of
the particular case, which can be catalogued as justifying a severe
punishment the judge would not award the death sentence. It may be
stated that if a judge finds that he is unable to explain with
reasonable accuracy the basis for selecting the higher of the two
sentences his choice should fall on the lower sentence. In all such
cases the law casts an obligation on the judge to make his choice
after carefully examining the pros and cons of each case. It must at
once be conceded that offenders of some particularly grossly brutal
crimes which send tremors in the community have to be firmly dealt
with to protect the community from the perpetrators of such crimes.
Where the incidence of a certain crime is rapidly growing and is
assuming menacing proportions, for example, acid pouring or bride
burning, it may be necessary for the courts to award exemplary
punishments to protect the community and to deter others from
committing such crimes. Since the legislature in its wisdom thought
that in some rare cases it may still be necessary to impose the
extreme punishment of death to deter others and to protect the
society and in a given case the country, it left the choice of
sentence to the judiciary with the rider that the judge may visit
the convict with the extreme punishment provided there exist special
reasons for so doing. …”
34. In Bachan Singh case (supra), while determining the
constitutional validity of the death penalty, this Court
has examined the sentencing procedure embodied in
Section 354(3) of the Code. Following issue was framed by
this Court in the aforesaid context:
“15. (i)… (ii)…whether the sentencing procedure provided in Section
354(3) of the Code of Criminal Procedure, 1973 (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 Penal Code with
death or, in the alternative, with imprisonment for life.”
35. To answer the said issue, this Court referred to and
considered Jagmohan Singh v. State of U.P. (which was
decided under the old Code) and culled out several
propositions from that decision. Keeping in view of the
changed legislative policy, this Court agreed with all the
observations in Jagmohan Singh case (supra) but for two-
first, that the discretion in the matter of sentencing is
to be exercised by the Judge after balancing all the
aggravating and mitigating circumstances of the crime and
second, that while choosing between the two alternative
sentences provided in Section 302 of the IPC, i.e.,
sentence of death and life imprisonment, the court is
principally concerned with the aggravating or mitigating
circumstances connected with the particular crime under
inquiry. This Court observed that whilst under the old
Code, both the sentence of death was the rule and life
imprisonment was an exception, Section 354(3) of the Code
has reversed the sentencing policy with the legislative
mandate that if a sentence of death is to be awarded,
special reasons need to be recorded by the Courts. That is
to say, the legislative policy now virtually obviated the
necessity of balancing the aggravating and mitigating
circumstances for the award of punishment in respect of an
offence of murder. The Court observed as follows in context
of departures from Jagmohan Singh case (supra):
“164. (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.
(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.”
36. In the aforesaid background this Court observed that
special reasons, in the context of the said provision,
obviously mean “exceptional reasons” founded on the
exceptionally grave circumstances relating to the crime as
well as the criminal. It being extremely difficult to
catalogue such special reasons, they have to be construed
in the facts of the case and relative weight has to be
given to mitigating and aggravating factors. This Court
observed that these two aspects are so intertwined that
isolation of one from the other would defeat the mandate of
law and held with hope that in view of the “broad
illustrative guidelines” laid down therein, the Courts:
“209. … will discharge the onerous function with evermore scrupulous
care and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3) viz. that for persons convicted of
murder, life imprisonment is the rule and death sentence an
exception.”
(Also: State of Maharashtra v. Goraksha Ambaji Adsul, (2011) 7 SCC 437;
Sangeet v. State of Haryana, (2013) 2 SCC 452; Sandesh v. State of
Maharashtra, (2013) 2 SCC 479)
37. In Swamy Shraddananda (2) v. State of Karnataka, (2008) 13
SCC 767 this Court opined that the term “special reasons”
as explained in the Bachan Singh case (supra) indicates a
relative category based on comparison with other cases
under Section 302 as under:
“44. The matter can be looked at from another angle. In Bachan Singh
it was held that the expression “special reasons” in the context of
the provision of Section 354(3) obviously means “exceptional
reasons” founded on the exceptionally grave circumstances of the
particular case relating to the crime as well as the criminal. It
was further said that on conviction for murder and other capital
offences punishable in the alternative with death under the Penal
Code, the extreme penalty should be imposed only in extreme cases.
In conclusion it was said that the death penalty ought not to be
imposed save in the rarest of rare cases when the alternative option
is unquestionably foreclosed. Now, all these expressions “special
reasons”, “exceptional reasons”, “founded on the exceptional grave
circumstances”, “extreme cases” and “the rarest of rare cases”
unquestionably indicate a relative category based on comparison with
other cases of murder. Machhi Singh, for the purpose of practical
application sought to translate this relative category into absolute
terms by framing the five categories. (In doing so, it is held by
some, Machhi Singh considerably enlarged the scope for imposing
death penalty that was greatly restricted by Bachan Singh).”
38. The said five categories of rarest of the rare crimes
delineated in Macchi Singh case (supra) are as follows:
“I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting or dastardly manner so as to arouse intense
and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view
to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin
commits murder for the sake of money or reward (b) a cold-blooded
murder is committed with a deliberate design in order to inherit
property or to gain control over property of a ward or a person
under the control of the murderer or vis-à-vis whom the murderer is
in a dominating position or in a position of trust, or (c) a murder
is committed in the course of betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority
community, etc. is committed not for personal reasons but in
circumstances which arouse social wrath. For instance when such a
crime is committed in order to terrorise such persons and frighten
them into fleeing from a place or in order to deprive them of, or
make them surrender, lands or benefits conferred on them with a view
to reverse past injustices and in order to restore the social
balance.
(b) In cases of ‘bride burning’ and what are known as ‘dowry deaths’
or when murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman on account of
infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion. For instance when
multiple murders say of all or almost all the members of a family or
a large number of persons of a particular caste, community, or
locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who could not
have or has not provided even an excuse, much less a provocation,
for murder (b) a helpless woman or a person rendered helpless by old
age or infirmity (c) when the victim is a person vis-à-vis whom the
murderer is in a position of domination or trust (d) when the victim
is a public figure generally loved and respected by the community
for the services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.”
(emphasis supplied)
39. This Court has cautioned that though the aforesaid are
extremely important factors could not be taken as
inflexible, absolute or immutable, they must be perceived
only as indicators which the Courts must bear in mind while
deciding upon the sentence and assigning special reasons,
if required.
40. The Constitutional Bench of this Court in Shashi Nayar v.
Union, (1992) 1 SCC 96 has observed that the “special
reasons clause” means reasons, specific to the fact of a
particular case, which can be catalogued as justifying a
severe punishment and unless, such reasons are not recorded
death sentence must not be awarded. Under this provision,
if the basis for awarding the higher sentence can be
explained with reasonable accuracy, after examining the
pros and cons of sentencing options achieving proportional
balance with the severity of the crime committed only then
should the higher punishment be awarded. This Court has
noted that thus, Section 345(3) is a sufficient safeguard
against the arbitrary imposition of the extreme penalty and
unless the nature of crime and the circumstances of the
offender reveal that the sentence to life imprisonment
would be wholly inadequate, the Courts should ordinarily
impose a lesser punishment.
41. This Court in Sandesh v. State of Maharashtra, (2013) 2 SCC
479 has discussed the aforesaid principles and observed as
follows:
“21……it is not only the crime and its various facets which are the
foundation for formation of special reasons as contemplated under
Section 354(3) CrPC for imposing death penalty but it is also the
criminal, his background, the manner in which the crime was
committed and his mental condition at the relevant time, the motive
of the offence and brutality with which the crime was committed are
also to be examined. The doctrine of rehabilitation and doctrine of
prudence are the other two guiding principles for proper exercise of
judicial discretion.”
42. The aforesaid would reflect that under this provision the
legislature casts a statutory duty on the Court to state
reasons for choice of the sterner sentence to be awarded in
exceptional cases as against the rule of life imprisonment
and by necessary implication, a legal obligation to explain
them as distinguished from the expression “reasons”
follows. The legislative mandate of assigning “special
reasons” assures that the imposition of the capital
punishment is well considered by the Court and that only
upon categorization of the case as “rarest of rare”, thus
leaving no room for imposition of a less harsh sentence,
should the Court sentence the accused person to death.
43. Incontrovertibly, the judicial approach towards sentencing
has to be cautious, circumspect and careful. The Courts at
all stages- trial and appellate must therefore peruse and
analyze the facts of the case in hand and reach an
independent conclusion which must be appropriately and
cogently justified in the “reasons” or “special reasons”
recorded by them for imposition of life imprisonment or
death penalty. The length of the discussion would not be a
touchstone for determining correctness of a decision. The
test would be that reasons must be lucid and satisfy the
appellate Court that the Court below has considered the
case in toto and thereafter, upon balancing all the
mitigating and aggravating factors, recorded the sentence.
44. We must now briefly advert to the sentencing procedure
prescribed by law. Under Section 235(2) of the Code, the
Court on convicting an accused must unquestionably afford
an opportunity to the accused to present his case on the
question of sentence and under Section 354(3) record the
extraordinary circumstances which warrant imposition of
death sentence keeping in view the entire facts of the case
and the submissions of the accused. In doing so if, for any
reason, it omits to do so or does not assign elaborate
reasons and the accused makes a grievance of it before the
higher court, it would be open to that Court to remedy the
same by elaborating upon the said reasons. Even when the
reasons recorded by the Courts below do not conform to the
statutory mandate or the judicially evolved principles,
this Court, should reach the conclusion that harsher
sentence of death requires to be imposed, could supplement
them so as to justify the imposition of such sentence
instead of remanding the matter to Courts below for re-
consideration on the question of sentence. Further, should
this Court opine to the contrary that the facts and
circumstances of the case do not require imposition of
capital punishment and the ends of justice would be
achieved by a less harsh sentence, it could accordingly
commute the sentence awarded by the Courts below. This
Court in Dagdu case (supra) has observed that remand is an
exception, not the rule, and therefore ought to be avoided
as far as possible in the interests of expeditious, though
fair, disposal of cases.
45. Herein, it is not the case of the appellants that the
opportunity to be heard on the question of sentence
separately as provisioned for under Section 235(2) of the
Code was not provided by the Courts below. Further, the
Trial Court has recorded and discussed the submissions made
by the appellants and the prosecution on the said question
and thereafter, rejected the possibility of awarding a
punishment less harsh than the death penalty. However, the
High Court while confirming the sentence has recorded
reasons though encapsulated. The High Court has noticed the
motive of the appellants being non withdrawal of the case
by the informant and the ghastly manner of commission of
crime whereby six innocent persons as young as 3 year old
were charred to death and concluded that the incident
shocks the conscience of the entire society and thus
deserves nothing lesser but death penalty.
46. There being no impropriety by the Courts below in
compliance with the procedure prescribed under law for
sentencing the appellants, only the question of adequacy
and correctness of the special reasons assigned for
awarding sentence of death requires to be considered by us.
In our considered opinion, as noticed above, it is only
upon examination of the facts and circumstances of the case
could the adequacy of the special reasons recorded by the
Courts below be determined by us. Therefore, we would now
consider the second issue to determine whether at all the
case falls in the category of rarest of the rare offences.
Issue two: Does this case fall into the category of rarest of the rare
cases?
47. We are mindful of the principles laid down by this Court
in Bachan Singh v. State, (1980) 2 SCC 684 and affirmed in
Macchi Singh v. State of Punjab, (1983) 3 SCC 470 to be
observed on the sentencing policy in determining the rarest
of the rare crimes. In Bachan Singh case (supra) this Court
has held as follows:
"While considering the question of sentence to be imposed for the
offence of murder u/s 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."
48. In Machhi Singh case (supra), this Court has awarded death
sentence to the accused who had methodically in a
preplanned manner murdered seventeen persons of a village
including men, women and children. Therein, this Court has
besides outlining the five broad categories of rarest of
rare cases held that in order to apply the guidelines of
Bachan Singh case (supra) the following questions ought to
be answered:
“39. “(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?”
This Court has held that if the answer to the above is in affirmative,
then death sentence is warranted. This Court has further observed that
the motivation of the perpetrator, the vulnerability of the victim, the
enormity of the crime, the execution thereof are few of the many
factors which normally weigh in the mind of the Court while
awarding death sentence in a case terming it as the “rarest of the
rare” cases. While applying the test of rarest of the rare case, the
Court has to look into variety of factors like society's abhorrence,
extreme indignation and antipathy to certain types of crimes which
shake the collective conscience of the society.
49. This Court in Rajesh Kumar v. State, (2011) 13 SCC 706 has
noticed the observations and principles evolved in Bachan
Singh case (supra) resonating through the international
sentiments on death penalty, as follows:
“83. The ratio in Bachan Singh has received approval by the
international legal community and has been very favourably
referred to by David Pannick in Judicial Review of the Death
Penalty: Duckworth (see pp. 104-05). Roger Hood and Carolyn Hoyle
in their treatise on The Death Penalty, 4th Edn. (Oxford) have
also very much appreciated the Bachan Singh ratio (see p. 285).
The concept of “rarest of rare” which has been evolved in Bachan
Singh by this Court is also the internationally accepted standard
in cases of death penalty.
84. Reference in this connection may also be made to the right
based approach in exercising discretion in death penalty as
suggested by Edward Fitzgerald, the British Barrister. [Edward
Fitzgerald: The Mitigating Exercise in Capital Cases in Death
Penalty Conference (3-5 June), Barbados: Conference Papers and
Recommendations.] It has been suggested therein that right
approach towards exercising discretion in capital cases is to
start from a strong presumption against the death penalty. It is
argued that “the presence of any significant mitigating factor
justifies exemption from the death penalty even in the most
gruesome cases” and Fitzgerald argues:
“Such a restrictive approach can be summarised as follows: The
normal sentence should be life imprisonment. The death sentence
should only be imposed instead of the life sentence in the
‘rarest of rare’ cases where the crime or crimes are of
exceptional heinousness and the individual has no significant
mitigation and is considered beyond reformation.”
(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th Edn.,
Oxford, p. 285.)
85. Opposing mandatory death sentence, the United Nations in its
interim report to the General Assembly in 2000 advanced the
following opinion:
“The proper application of human rights law—especially of its
provision that ‘no one shall be arbitrarily deprived of his
life’ and that ‘no one shall be subjected to … cruel, inhuman or
degrading … punishment’—requires weighing factors that will not
be taken into account in the process of determining whether a
defendant is guilty of committing a ‘most serious crime’. As a
result, these factors can only be taken into account in the
context of individualised sentencing by the judiciary in death
penalty cases …. The conclusion, in theory as well as in
practice, was that respect for human rights can be reliably
ensured in death penalty cases only if the judiciary engages in
case-specific, individualised sentencing that accounts for all
of the relevant factors…. It is clear, therefore, that in death
penalty cases, individualised sentencing by the judiciary is
required to prevent cruel, inhuman or degrading punishment and
the arbitrary deprivation of life.”
(The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p.
281.)
50. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257,
this Court has reflected upon the aforesaid decisions and
culled out the principles as follows:
“76. 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 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.
(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.
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.”
51. This Court has consistently held that only in those
exceptional cases where the crime is so brutal, diabolical
and revolting so as to shock the collective conscience of
the community, would it be appropriate to award death
sentence. Since such circumstances cannot be laid down as a
straight jacket formula but must be ascertained from case
to case, the legislature has left it open for the Courts to
examine the facts of the case and appropriately decide upon
the sentence proportional to the gravity of the offence.
52. We would now notice the decisions of this Court to reflect
upon the various circumstances which have acted as
mitigating and aggravating factors in given facts to result
in commutation of sentence or confirmation of death
penalty; so as to examine the sentencing policy in the
backdrop of balance-sheet of such factors in the case at
hand.
Cases where death sentence is confirmed:
53. In Dagdu v. State of Maharashtra, (1977) 3 SCC 68, this
Court has observed as follows:
“83. Having considered the matter in all its aspects — penal,
juristic and sociogical — and having given our most anxious
consideration to the problem, we are of the opinion that Accused
3, 9, 10 and 11 deserve the extreme penalty of law and that there
is no justification for interfering with the sentence of death
imposed upon them.
84. Accused 3 put an end to four innocent lives, three small girls
ten years of age and a woman in her thirties. Accused 9, 10 and 11
committed the murders of Haribai, her nine-year old daughter and
her infant child. The victims had given no cause for the
atrocities perpetrated on them. They were killed as a child kills
flies. And the brutality accompanying the manner of killing defies
an adequate description. The luring of small girls, the gagging,
the cutting of their private parts, the ruthless defiling in order
to prevent identification of the victims and the mysterious motive
for the murders call for but one sentence. Nothing short of the
death sentence can atone for such callous and calculated
transgression of law. Morbid pity can have no place in the
assessment of murders which, in many respects, will remain
unparalled in the annals of crime. Accordingly, we confirm the
death sentence imposed on Accused 3, 9, 10 and 11.”
54. In Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 611
the accused had gone to the place of occurrence well
prepared carrying jerry cans containing petrol, sword,
pistol with two bullets, which showed his premeditation and
cold-blooded mind. In the incident five persons lost their
lives while the sole surviving lady survived with 70% burn
injuries. The murder was committed in a cruel, grotesque
and diabolical manner, and closing of the door of the house
was the most foul act by which the accused actually
intended to burn all the persons inside the room and
precisely that happened. Hence the Court did not find any
sentence less harsh than the death sentence.
55. In M.A. Antony v. State of Kerala, (2009) 6 SCC 220 all six
members of a family were murdered at their residence at
night. The motive was money, and the absence of the accused
from his own residence during the corresponding period and
recovery of clothes under Section 27 of the Evidence Act,
1872, fingerprints on the doorsteps of the house matching
with those of the accused, and recovery of scalp hair of
the accused from place of occurrence were damning
circumstantial evidence. Having regard to the chain of
circumstances and the diabolical manner of commission of
crime the death sentence was upheld.
56. In Jagdish v. State of M.P., (2009) 9 SCC 495 the assailant
murdered his wife and five children (aged 1 to 16 years) in
his own house. The murders were particularly horrifying as
the assailant was in a dominant position and a position of
trust as the head of the family. The assailant betraying
the trust and abusing his position murdered his wife and
minor children (youngest being the only son just 1 year
old). This Court held that the balance sheet of the
aggravating and mitigating circumstances was heavily
weighed against the assailant making it the rarest of rare
cases. Consequently the award of death sentence was just.
57. In Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434
the accused was a paying guest for a continuous period of
four years in lieu of a sum of Rs.500 for food and meals.
He brutally executed three innocent defenceless children
aged 8, 15 and 16, attempted to murder the father
(informant) and mother who survived the attack with
multiple injuries. There was no provocation or reason for
committing this ghastly act at a time when the children
were sleeping. There were several incised wounds (muscle-
deep or bone-deep) caused to the deceased. Considering the
brutality, diabolic, inhuman nature and enormity of the
crime (multiple murders and attacks), this Court held that
the mindset of the accused could not be said to be amenable
to any reformation. Therefore, it came under the rarest of
the rare category where not awarding a death sentence would
have resulted in failure of justice.
58. In Ram Singh v. Sonia, (2007) 3 SCC 1 the wife in collusion
with her husband murdered not only her stepbrother and his
whole family including three tiny tots of 45 days, 2½ years
and 4 years, but also her own father, mother and sister so
as to deprive her father from giving property to her
stepbrother and his family. The murders were committed in a
cruel, pre-planned and diabolic manner while the victims
were sleeping, without any provocation from the victim’s
side. It was held that the accused persons did not possess
any basic humanity and completely lacked the psyche or
mindset amenable to any reformation. It was a revolting and
dastardly act, and hence the case fell within the category
of the rarest of rare cases and thus death sentence was
justified.
59. In Holiram Bordoloi v. State of Assam, (2005) 3 SCC 793 the
accused persons were armed with lathis, and various other
weapons. They came to the house of the victim and started
pelting stones on the bamboo wall of the said house.
Thereafter, they closed the house from the outside and set
the house on fire. When the son, daughter and the wife of
the victim somehow managed to come out of the house, the
accused persons caught hold of them and threw them into the
fire again. Thereafter the elder brother who was staying in
another house at some distance from the house of the victim
was caught and dragged to the courtyard of the accused
where the accused cut him into pieces. It was held that
there was absence of any strong motive and the victims did
not provoke or contribute to the incident. The accused was
the leader of the gang, and the offence was committed in
the most barbaric manner to deter others from challenging
the supremacy of the accused in the village. It was held
that no mitigating circumstances to refrain from imposing
death penalty were found.
60. In Karan Singh v. State of U.P., (2005) 6 SCC 342 the two
appellants chased the deceased persons and butchered them
with axes and other weapons in a very dastardly manner.
After killing three adults, the appellants entered their
house and killed two children who in no way were involved
with the alleged property dispute with the appellants. It
was held that the sole intention here was to exterminate
the entire family. Thus, it was the rarest of the rare
case.
61. In Gurmeet Singh v. State of U.P., (2005) 12 SCC 107
appellant G, along with his friend L killed thirteen
members of his family including small kids for a flimsy
reason (objection of family of G to the visits and stay of
L at their house) while they were asleep. The award of
death sentence was held proper.
62. In State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224 the
accused deliberately planned and executed his two innocent
children, wife and brother-in-law when they were sleeping
at night. There was no remorse for such a gruesome act
which was indicated by the calmness with which he was
smoking “chilam” after the commission of the act. As it was
preplanned and after the entire chain of events and
circumstances were comprehended, the inevitable conclusion,
was that the accused acted in the most cruel and inhuman
manner and the murder was committed in an extremely brutal,
grotesque, diabolical, revolting and dastardly manner.
63. In Om Prakash v. State of Uttaranchal, (2003) 1 SCC 648 the
accused, a domestic servant killed three innocent members
and attempted to kill the fourth member of the family of
his employer in order to take revenge for the decision to
dispense with his service and to commit robbery. The death
sentence was upheld.
64. In Gurdev Singh v. State of Punjab, (2003) 7 SCC 258 the
appellants, having known that on the next day a marriage
was to take place in the house of the complainant and there
would be lots of relatives present in her house, came there
on the evening when a feast was going on and started firing
on the innocent persons. Thirteen persons were killed on
the spot and eight others were seriously injured. The
appellants thereafter went to another place and killed the
father and brother of PW 15. Out of the thirteen persons,
one of them was a seven-year-old child, three others had
ages ranging between 15 and 17 years. The death sentence
was held justified.
65. In Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199
the accused was accommodated by one of the victims (who was
his aunt) despite her large family, and she gave him an
opportunity to make an honest living as a tailor. The
accused committed the preplanned, cold-blooded murders of
the relatives and well-wishers (including one young child)
while they were sleeping. After the commission of the crime
the accused absconded from judicial custody for nearly four
years, which eliminated the possibility of any remorse or
rehabilitation. Held, the extreme penalty of death was
justified.
66. In Suresh v. State of U.P., (2005) 6 SCC 130 the brutal
murder of one of the accused’s brother and his family
members including minor children at night when they were
fast asleep with axe and chopper by cutting their skulls
and necks for a piece of land was considered to be a
grotesque and diabolical act, where any other punishment
than the death penalty was unjustified.
67. In Ranjeet Singh v. State of Rajasthan, (1988) 1 SCC 633
the entire family was murdered when they were fast asleep
and this Court observed as under:
“13. With regard to the sentence of death, there cannot be two
opinions. The manner in which the entire family was eliminated
indicates that the offence was deliberate and diabolical. It was
predetermined and cold-blooded. It was absolutely devilish and
dastardly.”
68. In Ramdeo Chauhan v. State of Assam, (2000) 7 SCC 455 the
accused committed a preplanned, cold-blooded brutal murder
of four inmates of a house including two helpless women and
a child aged 2½ years during their sleep with a motive to
commit theft. The accused also attacked with a spade
another inmate of the house, an old woman, and a neighbour
when they entered the house. The Court held that the young
age (22 years) of the accused at the time of committing the
crime was not a mitigating circumstance, and death penalty
was a just and proper punishment.
69. In Narayan Chetanram Chaudhary v. State of Maharashtra,
(2000) 8 SCC 457 there was a preplanned, calculated, cold-
blooded murder of five women, including one pregnant woman
and two children aged 1½ years and 2½ years, all inmates of
a house, in order to wipe out all evidence of robbery and
theft committed by two accused in the house at a time when
male members of the house were out. It was held that the
young age (20-22 years) of the accused persons cannot serve
as a mitigating circumstance.
70. In Surja Ram v. State of Rajasthan, (1996) 6 SCC 271 the
appellant murdered his brother, his two minor sons and an
aged aunt by cutting their neck with a kassi while they
were all sleeping. He also attempted to murder his
brother’s wife and daughter but they survived with serious
injuries. The dispute between them only related to putting
a barbed fence on a portion of their residential complex.
The death sentence was held to be justified.
71. In Ravji v. State of Rajasthan, (1996) 2 SCC 175 the
accused in a cool and calculated manner wanted to kill his
wife and three minor children while they were asleep. When
his mother intervened he injured her with an axe with an
intention to kill her. He then silently went to the
neighbour’s house and attempted to kill his neighbour’s
wife who was also asleep. When his neighbour intervened he
killed him too and fled from the place of occurrence and
tried to hide himself. The accused had a solemn duty to
protect his family members and maintain them but he
betrayed the trust reposed in him in a very cruel and
calculated manner without any provocation whatsoever. Hence
the death penalty had to be upheld.
72. In Sudam v. State of Maharashtra, (2011) 7 SCC 125 this
Court held that where an accused was found guilty of
committing murder of four children and a woman with whom he
was living with as husband and wife, the death penalty was
justified and observed:
“22. The manner in which the crime has been committed clearly shows
it to be premeditated and well planned. It seems that all the four
children and the woman were brought near the pond in a planned
manner, strangulated to death and the dead bodies of the children
thrown in the pond to conceal the crime. He not only killed Anita
but crushed her head to avoid identification. Killing four children,
tying the dead bodies in bundles of two each and throwing them in
the pond would not have been possible, had the appellant not
meticulously planned the murders. It shows that the crime has been
committed in a beastly, extremely brutal, barbaric and grotesque
manner. It has resulted in intense and extreme indignation of the
community and shocked the collective conscience of the society.
23. We are of the opinion that the appellant is a menace to the
society who cannot be reformed. Lesser punishment, in our opinion,
shall be fraught with danger as it may expose the society to peril
once again at the hands of the appellant. We are of the opinion that
the case in hand falls in the category of the rarest of rare cases
and the trial court did not err in awarding the death sentence and
the High Court confirming the same.”
73. In Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, this
Court confirmed the death sentence given to the appellant
who had committed multiple murders of members of his
family, who were none other than stepmother, brother and
sister in order to inherit the entire property of his
father. The appellant, in consultation with his mother
planned to eliminate the entire family of his stepmother,
and with this intention went to her house, closed the doors
and mercilessly inflicted 37 knife injuries on the vital
parts of the victims’ bodies.
74. In Ajitsingh Harnamsingh Gujral v. State of Maharashtra,
(2011) 14 SCC 401 the appellant was convicted for burning
wife and three grown up children. While awarding the
sentence of death this Court considered the following
circumstances which weighed in favor of the capital
punishment:
“91. In our opinion, a person like the appellant who instead of
doing his duty of protecting his family kills them in such a cruel
and barbaric manner cannot be reformed or rehabilitated. The balance
sheet is heavily against him and accordingly we uphold the death
sentence awarded to him.
92. In the present case the accused did not act on any spur of the
moment provocation. It is no doubt that a quarrel occurred between
him and his wife at midnight, but the fact that he had brought a
large quantity of petrol to his residential apartment shows that he
had pre-planned the diabolical and gruesome murder in a dastardly
manner.”
Cases where death sentence is commuted:
75. 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.
76. Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1
SCC 775 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.
77. 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 paedophile with “extremely
violent propensities”. Earlier, in 1998, he was convicted
of an offence under Section 354 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 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. 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.
78. In Rajesh Kumar case (supra) the appellant had murdered two
children. One of them was four-and-a-half year 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 the society and that the
State had not produced any evidence to show that he was
incapable of reform and rehabilitation.
79. Amit v. State of U.P., (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 and that the
possibilities of his reform over a period of years could
not be ruled out since there was no evidence of any earlier
offence committed by him.
80. In the present circumstances, we would place reliance upon
the observations of this Court in State of U.P. v.
Dharmendra Singh, (1999) 8 SCC 325. In this case, 6 accused
persons were charged with offence under Section 302 read
with 149 of the IPC for murdering 5 persons: an old man of
75 years, a woman aged 32 years, two boys aged 12 years and
a girl aged 15 years, at night when they were asleep by
inflicting multiple injuries to wreak vengeance. The Trial
Court while convicting them had awarded life sentence in
regard to 4 accused persons and after assigning reasons
awarded death sentence to the 2 others. In appeal the High
Court upheld the conviction of all accused persons and
while confirming life sentence on the 4 accused persons
came to the conclusion that the sentence of death was not
called for in respect to 2 accused persons who were
languishing in the death cell for 3 years and consequently
reduced the sentence to that of imprisonment of life. In
appeal, this Court in context of the argument that since
individual overt acts that have not been established, even
if the conviction is to be upheld, capital punishment
should not be granted, has observed as follows:
“15. We have carefully perused the evidence adduced in this case,
to the limited extent of examining whether the case in hand is a
case which could be termed as rarest of the rare cases so as to
invoke the extreme penalty of death. The learned Sessions Judge
while assigning special reasons for awarding the capital
punishment came to the conclusion that the crime in question was a
dastardly crime involving the death of 5 innocent human beings for
the purpose of achieving the sadistic goals of Dharmendra and
Narendra, the respondents herein, to avenge their respective
grouse against the complainant and his niece Reeta by eliminating
5 members of the family. Learned Sessions Judge distinguished the
case of the 4 other accused with that of these respondents based
on the motive and on the ground that these respondents were the
principal perpetrators of the crime. It is seen that the High
Court has concurred with this reasoning of the Sessions Judge.
However, the High Court on the ground that the accused have
languished in the death cell for 3 years, altered the sentence to
life imprisonment.
…
23. It is possible in a given set of facts that the court might
think even in a case where death sentence can be awarded, the same
need not be awarded because of the peculiar facts of that case
like the possibility of one or more of the accused being
responsible for offences less culpable than the other accused. In
such circumstances, in the absence of their being no material
available, to bifurcate the case of each accused person, the court
might think it prudent not to award the extreme penalty of death.
But then such a decision would rest on the availability of
evidence in a particular case. We do not think that a straitjacket
formula for awarding death sentence can be evolved which is
applicable to all cases. The facts of each case will have their
own implication on the question of awarding sentence. In Ronny
case (1998) 3 SCC 625, this Court on facts found extenuating
factors to curb the sentence which is clear from the following
extract from the said judgment: (SCC p. 654, para 47)
“From the facts and circumstances, it is not possible to predict
as to who among the three played which part. It may be that the
role of one has been more culpable in degree than that of the
others and vice versa. Where in a case like this it is not
possible to say as to whose case falls within the ‘rarest of the
rare’ cases, it would serve the ends of justice if the capital
punishment is commuted into life imprisonment.”
81. Further in Dharmendra Singh case (supra) this Court while
rejecting the mitigating circumstance of expectation of
survival due to reversal of sentence by the High Court,
observed:
“25…In a judicial system like ours where there is a hierarchy of
courts, the possibility of reversal of judgments is inevitable,
therefore, expectations of an accused cannot be a mitigating
factor to interfere in an appeal for enhancement of sentence if
the same is otherwise called for in law.
26. Taking into consideration the brutality of the attack, the
number of persons murdered, the age and infirmity of the
victims, their vulnerability and the diabolic motive, acts of
perversion on the person of Reeta, cumulatively we find the
sentence awarded by the trial court was just and proper. “
Mitigating and Aggravating Circumstances in the present case:
82. Having noticed the decisions of this Court on the said
aspect, we would revert to the factual position in this
case. Herein, the time, place, manner of and the motive
behind commission of the crime speak volumes of the pre-
mediated and callous nature of the offence. The
ruthlessness of the appellants is reflected through brutal
murders of the young, innocent children and wife of the
informant by burning them alive to avenge their cause in
the dark of the night; the cause being non-withdrawal of an
FIR filed by the informant for theft of his buffalo against
the appellant-A1. Further, from the record we gather that
only family members of the informant have come forward to
depose as the entire village must have been shocked with
the ghastly murders of the deceased persons and in such
circumstances would not have come forward to testify
against the appellants who already had translated the
threats given to the informant in village panchayat into a
shocking reality. While our experience reminds us that
civilized people generally unsuccinctly when the crime is
committed infact in their presence, withdraw themselves
both from the victim and the vigilante unless inevitable
and consider that crime like civil disputes must restrict
itself to the two parties, it also evidences for the threat
the incident had instilled amongst the villagers that none
in such close knit unit besides the sanguine relatives had
come forth to testify against the accused.
83. The mitigating circumstances elaborated upon by Shri Mishra
in respect of comparatively young age of the appellants
holds no ground, their army background and their custodial
behavior fail to outweigh the aggravating factors in the
present case. The argument that the appellants are not
“antisocial elements” fails into inception in the light of
the effect of the occurrence reflected through the
abstinence of the villagers from deposing against them at
the trial.
84. However, in the present case, while taking an overall view,
no overt act in the commission of crime could be attributed
to A3. The role played by A3 during commission of the crime
as established was to hold the barrels of kerosene along
with one other. While determining the gravity of the
offence committed by the appellants it must be noticed that
it is only A1 who had threatened the informant of burning
his house in case the FIR against his family and him were
not withdrawn. Further, A1 during the occurrence not only
scripted and instructed the rest of the unlawful assembly
but also lighted the matchstick to burn the house as well
informant’s body. A2, pushed the informant to the ground
and later fired at him.
85. Further, in respect of the mitigating factors of lack of
criminal antecedents or probabilities of the appellants to
be menace to the society, we would re-iterate the
observations of this Court in Gurdev Singh v. State of
Punjab, (2003) 7 SCC 258 that it is indeed true that the
underlying principle of our sentencing jurisprudence is
reformation and there is nothing in evidence to show that
the appellants have been a threat or menace to the society
at large besides the FIR regarding the theft of buffalo. It
is also true that we cannot say that they would be a
further menace to the society or not as we live as
creatures saddled with an imperfect ability to predict the
future. Nevertheless, the law prescribes for future, based
upon its knowledge of the past and is being forced to deal
with tomorrow’s problems with yesterday’s tools.
86. However, in the peculiar facts of this case, the
possibility of A3 being less culpable than the other
accused cannot be answered in affirmative. Therefore, in
our considered view, we do not deem it proper to sentence
A3 to death in light of there being no overt act
attributable to him and sentence to imprisonment till the
end of his life would appropriately serve as punishment
proportional to the degree of offence committed by him.
87. In respect of A1 and A2, we are of the considered view that
the instant case falls into such category of rarest of the
rare cases where culpability has assumed the proportion of
extreme depravity and the appellant-accused are perfect
example of a blood thirsty, scheming and hardened criminals
who slayed seven innocent lives to quench their thirst for
revenge and such revenge evolving out of a fellow citizens
refusal to abstain from resorting to machinery of law to
protect his rights. The entire incident is extremely
revolting and shocks the collective conscience of the
community. The acts of murder committed by the appellants
are so gruesome, merciless and brutal that the aggravating
circumstances far outweigh the mitigating circumstances.
88. We now proceed to examine such special reasons which negate
the possibility of any sentence but for death penalty.
Herein, A1 and A2 have committed a cold blooded murder in a
pre-ordained fashion without any provocation whatsoever.
The motive behind the gruesome act was to avenge the act of
informant in approaching the machinery of law enforcement
inspite of threats by the appellants.
The victims were five
innocent children and wife of the informant who were
sleeping unalarmed when the appellants came and locked them
inside their house while it was set ablaze.
Further, wrath
of A1 and A2 is reflected in their act of first gagging the
informant, thereafter attempting to burn him alive and
later, when he tried to escape, firing at him thereby
leaving no stone unturned in translating their threats into
reality.
As a result of the aforesaid incident, having
witnessed the threats of burning given by the A1 to the
informant tuned into reality, none but the family of the
deceased-informant came forth to depose against the
appellant-accused persons during the trial.
The crime,
enormous in proportion having wiped off the whole family,
is committed so brutally that it pricks and shocks not only
the judicial conscience but even the collective conscience
of the society.
It demands just punishment from the Court
and the Court is bound to respond within legal parameters.
The demand for justice and the award of punishment have to
be in consonance with the legislative command and the
discretion vested in the Courts.
89. On the question of striking a delicate balance between the
proportionality of crime to the sentencing policy, Lord
Denning has observed as follows on the very purpose of
imposition of a punishment:
“…the punishment is the way in which society expresses its
denunciation of wrong doing; and, in order to maintain respect for
the law, it is essential that the punishment inflicted for grave
crimes should adequately reflect the revulsion felt by the great
majority of citizens for them. It is a mistake to consider the
objects of punishments as being a deterrent or reformative or
preventive and nothing else... The truth is that some crimes are so
outrageous that society insists on adequate punishment, because the
wrong doer deserves it, irrespective of whether it is a deterrent or
not.”
90. In light of the aforesaid, having regard to the gravity of
the offence committed, we are of the considered opinion
that with regard to A1 and A2 this case falls into the
category of rarest of the rare cases and is not a case
where imprisonment for life is an adequate sentence and
thus, constrained to reach the inescapable conclusion that
death sentence imposed on A1 and A2 be confirmed.
91. Therefore, the sentence of death imposed on A1 and A2 is
confirmed and the sentence awarded to A3 is commuted to
life imprisonment till the rest of his life.
92. The order of stay on the execution of the capital
punishment of A1 and A2 is vacated.
93. The appeals are disposed of in the aforesaid terms.
.............................J.
(H. L. DATTU)
.............................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
.............................J.
(M. Y. EQBAL)
NEW DELHI;
SEPTEMBER 19, 2013.
