published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40836
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 659 OF 2006
State of Rajasthan … Appellant (s)
Versus
Jamil Khan … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. All murders shock the community; but certain murders shock the
conscience of the Court and the community. The distinguishing aspect of
the latter category is that there is shock coupled with extreme
revulsion. What should be the penological approach in that category is
one question arising for consideration in this case.
What is the scope of
consideration of Death Reference by the High Court under
Chapter XXVIII of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘Cr.PC’), is the other question.
Whether there is any
restriction on the exercise of power under Section 432 Cr.PC for
remission and Section 433 Cr.PC for commutation in cases of minimum
sentence is the third main issue.
2. On 23.12.2002, Pooja, a tiny girl below five years of age was brutally
raped and thereafter murdered by the respondent. He packed the dead body
in a sack and further in a bag and secretly left it in a train. By
Judgment dated 15.04.2004, the Sessions Court, having regard to the
overwhelming evidence, convicted the respondent under Section 302 of the
Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and
sentenced him to death. He was also found guilty under Section 376 of IPC
and was sentenced to imprisonment for life with a fine of Rs.2,000/-.
Under Section 201 of IPC, he was convicted and sentenced to rigorous
imprisonment for three years and a fine of Rs.500/-. There was default
clause as well. The Sessions Court mainly relied on the decision of this
Court in Kamta Tiwari vs. State of Madhya Pradesh[1]. In that case, a
seven year old child was raped, murdered and the body was thrown into a
well. This Court awarded death sentence. In the instant case, the Death
Reference was considered by the High Court of Rajasthan along with the
Appeal leading to the impugned Judgment dated 09.11.2004.
The case law on sentencing has been extensively referred to by the
High Court. But without reference to the aggravating or mitigating
circumstances or to the special reasons, the High Court held that the case
does not fall in the category of rarest of rare cases warranting death
sentence. Thus, the High Court declined to confirm the death sentence and
awarded life imprisonment under Section 302 of IPC. The conviction and
sentence under Sections 376 and 201 of IPC was maintained.
3. The State has come in appeal contending that it is a fit case where
punishment of death should be awarded to the respondent. There is no
appeal by the respondent challenging the conviction and sentence as
confirmed by the High Court under Sections 302, 376 and 201 of IPC.
4. Having regard to the above background, it is not necessary to
extensively refer to the factual matrix, except for the relevant aspects.
However, to understand the nature of the crime, we shall refer to the
injuries noticed by the medical board in the post mortem:
“Ext. genital part blood stained and vaginal bleeding present, vaginal
tear (2nd degree) extend upto anal office postrly, hymen rupture, cervix
admit one finger loose, vaginal smear is taken, send for FSL & slide is
prepared from vaginal secretion, send for FSL.
1. Ligature mark 1cm x 0.5cm deep is present around the whole neck
below the thyroid cartilage, base is brownish Red dry parchment lobe
appearance on cut sectioned the sub cut tissue beneath the ligature
mark is ecchymosed;
2. Abrasion- 3cm x 0.2cm in size three in number parallel to each
other, vertical position mid of the neck antrly below the ligature
mark;
3. Ligature mark 1cm breadth is present on antero lateral and post
part of middle of both leg, this mark is post mortem in nature.
Injury No. 1 & 2 ante mortem in nature.”
5. In the opinion of the Medical Board, asphyxia due to strangulation was
the cause of death.
6. The injuries present on the body of the tiny child would clearly
establish the barbaric nature of the commission of the offence. The
respondent had some previous acquaintance with the child when he used to
visit his parents who stayed in the neigbourhood. It has come in evidence
that the respondent had planned the crime. On the fateful day, he had
come to the place, drunk, carrying with him a sack and a blue bag. PW2,
who knows the accused, had seen him proceeding towards his house carrying
a white coloured katta (sack) on his shoulder and a blue coloured bag in
his hands. According to PW3, the accused had gone to his shop, bought
peanuts and madhu gutka. He lured the child by offering peanuts and took
her to his parents’ house. PW3 had seen the accused carrying the loaded
bag on his shoulder. It is not necessary to discuss the other evidence
available from the recovered articles which all have conclusively
established that it was the respondent who committed the offence.
7. Aggravating factors qua the crime and mitigating factors qua the
criminal should be properly balanced so as to decide whether an offence
of murder would fall under the rarest of rare category to be visited with
the extreme punishment of death. The Court, under Section 354(3) of
Cr.PC, has to give special reasons, in case death sentence is awarded.
The very decision of the Court that a case falls under the rarest of rare
category would ordinarily meet the requirement of special reasons under
Section 354(3) of the Cr.PC since inclusion of a case in that category
can be only on such finding. As held by the Constitution Bench of this
Court in Bachan Singh vs. State of Punjab[2], the finding would depend on
facts and circumstances of each case. To quote:
“201. …As we read Sections 354(3) and 235(2) and other related
provisions of the Code of 1973, it is quite clear to us that for
making the choice of punishment or for ascertaining the existence or
absence of “special reasons” in that context, the court must pay due
regard both to the crime and the criminal. What is the relative weight
to be given to the aggravating and mitigating factors, depends on the
facts and circumstances of the particular case. More often than not,
these two aspects are so intertwined that it is difficult to give a
separate treatment to each of them. This is so because “style is the
man”. In many cases, the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated index of the depraved
character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of the
criminal in two separate watertight compartments. In a sense, to kill
is to be cruel and, therefore all murders are cruel. But such cruelty
may vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that “special
reasons” can legitimately be said to exist.”
(Emphasis supplied)
8. In Machhi Singh and Others vs. State of Punjab[3], a three-Judge Bench
of this Court has made an attempt to cull out certain aggravating and
mitigating circumstances and it has been held that in case imprisonment
for life is inadequate in view of the peculiar aspects of the crime, then
alone the sentence of death should be awarded. To quote:
“38. xxx xxx xxx
i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to
the nature and circumstances of the crime and all the
relevant circumstances.
iv) A balance-sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for
a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after
according maximum weightage to the mitigating circumstances
which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account
the answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the court
would proceed to do so.”
(Emphasis supplied)
9. In Shankar Kisanrao Khade vs. State of Maharashtra[4], referring to the
recent decisions (of about fifteen years), this Court has summarized the
mitigating factors and aggravating factors. Young age of the accused,
the possibility of reforming and rehabilitating the accused, the accused
having no prior criminal record, the accused not likely to be a menace or
threat or danger to society or the community, the accused having been
acquitted by one of the courts, the crime not being premeditated, the
case being of circumstantial evidence, etc., are some of the mitigating
factors indicated therein. The cruel, diabolic, inhuman, depraved and
gruesome nature of the crime, the crime result in public abhorrence,
shocks the judicial conscience or the conscience of society or the
community, the reform or rehabilitation of the convict is not likely or
that he would be a menace to society, the crime was either unprovoked or
that it was premeditated, etc., are some of the aggravating factors
indicated in the said decision.
10. In State of Uttar Pradesh vs. Sattan alias Satyendra and Others[5],
this Court had an occasion to consider the penological purpose of
sentencing. To quote:
“30. “21.‘9. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons and property of
the people is an essential function of the State. It could be achieved
through instrumentality of criminal law. Undoubtedly, there is a cross-
cultural conflict where living law must find answer to the new
challenges and the courts are required to mould the sentencing system
to meet the challenges. The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of society and stamping
out criminal proclivity must be the object of law which must be
achieved by imposing appropriate sentence. Therefore, law as a
cornerstone of the edifice of "order" should meet the challenges
confronting the society. ...
10. Therefore, undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine the public
confidence in the efficacy of law and society could not long endure
under such serious threats. It is, therefore, the duty of every court
to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc. …”
(Emphasis supplied)
11. This Court did not mince words while discussing the requirement of
adequate punishment in Mahesh s/o Ram Narain and Others vs. State of
Madhya Pradesh[6]. To quote:
“6. …it will be a mockery of justice to permit these appellants to
escape the extreme penalty of law when faced with such evidence and
such cruel acts. To give the lesser punishment for the appellants
would be to render the justicing system of this country suspect. The
common man will lose faith in courts. In such cases, he understands
and appreciates the language of deterrence more than the reformative
jargon. ...”
(Emphasis supplied)
12. In Devender Pal Singh vs. State of NCT of Delhi and Another[7], after
referring to the Bachan Singh and Machhi Singh cases (supra), this Court
held that when the collective conscience of the community is so shocked,
it will expect the judiciary to inflict death penalty. To quote:
“58. From Bachan Singh v. State of Punjab and Machhi Singh and Others
v. State of Punjab, the principle culled out is that when the
collective conscience of the community is so shocked, that it will
expect the holders of the judicial power center to inflict death
penalty irrespective of their personal opinion as regards desirability
or otherwise of retaining death penalty, the same can be awarded. It
was observed:
The community may entertain such sentiment in the following
circumstances:
(1) 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.
(2) When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin for
money or reward; or cold-blooded murder for gains of a person
vis-a-vis whom the murderer is in a dominating position or in a
position of trust; or murder is committed in the course of
betrayal of the motherland.
(3) 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; or in cases of ‘bride
burning’ or ‘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.
(4) 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.
(5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person vis-a-vis
whom the murderer is in a dominating position, or a public
figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the
light of the aforesaid propositions and taking into account the
answers to the questions posed by way of the test for the rarest of
rare cases, the circumstances of the case are such that death sentence
is warranted, the court would proceed to do so".
(Emphasis supplied)
13. According to Lord Denning, the punishment inflicted for grave crimes
should reflect the revulsion felt by the great majority of citizens. To
him, deterrence, reformation or prevention are not the determinative
factors. His statement to the Royal Commission on Capital Punishment made
in 1950 reads:
“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.”
(Emphasis supplied)
14. As held by this Court in Ajitsingh Harnamsingh Gujral vs. State of
Maharashtra[8], a distinction has to be drawn between ordinary murders
and murders which are gruesome, ghastly or horrendous. In such cases,
“93. …While life sentence should be given in the former, the latter
belongs to the category of the rarest of rare cases, and hence death
sentence should be given. …”
15. Any murder would cause a shock to the society but all murders may not
cause revulsion in society. Certain murders shock the collective
conscience of the Court and community. Heinous rape of minors followed by
murder is one such instance of a crime which shocks and repulses the
collective conscience of the community and the Court. Such crimes arouse
extreme revulsion in society. While culling out the rarest of rare cases
on the basis of aggravating and mitigating factors, we are of the view
that such crimes, which shock the collective conscience of the society by
creating extreme revulsion in the minds of the people, are to be treated
as the rarest of rare category.
16. Although the crime in the present case is gruesome and renders a
loathsome shock to the community, we are bound by the ratio in Bachan
Singh’s case (supra) which requires the Court to consider the mitigating
factors qua the criminal. In the instant case, the respondent no doubt
was young at the time of the commission of the offence, above nineteen
years of age. He was a labourer. But while considering the mitigating
factors, poverty has to be understood in light of whether it was a factor
influencing the commission of offence. In a recent decision by coordinate
Bench of this Court, authored by one of us (Kurian, J.) in Sunil Damodar
Gaikwad vs. State of Maharashtra[9], decided on 10.09.2013, in Criminal
Appeal Nos. 165-166 of 2011, it has been held that:
“Poverty, socio-economic, psychic compulsions, undeserved adversities
in life are thus some of the mitigating factors to be considered, in
addition to those indicated in Bachan Singh and Machhi Singh cases.”
That was a case where a poor tailor finding it difficult to maintain his
family of wife and three children, one of whom also required constant
treatment, decided to wipe out the entire family. Poverty shall not be
understood and applied as disjunct from the factual position. In other
words, poverty or socio-economic, psychic or undeserved adversities in life
shall be considered as mitigating factors only if those factors have a
compelling or advancing role to play in the commission of the crime or
otherwise influencing the criminal. Thus, merely because the offender is a
poor person, his poverty will not be a mitigating factor. In this case the
mitigating factor of the crime is not poverty. The lust fuelled crime of
rape and murder and that too of a minor child of tender age has nothing to
do with the poverty, socio-economic background or other psychic compulsions
of the criminal. The decision in Sunil Damodar Gaikwad’s case (supra) will
stand clarified to the above extent.
17. In the instant case, there cannot be any doubt that the crime is of
extreme mental perversion. It was a well-planned crime as can be seen
from the discussion at Paragraph 7 ibid. The major mitigating factor as
far as respondent in this case is concerned is that he was young.
However, in Shankar Kisanrao’s case (supra), this Court held that the
fact that the accused is young by itself is not a major and deciding
factor while considering the mitigating factors. Dhananjoy Chatterjee vs.
State of W.B.[10], Jai Kumar vs. State of M.P.[11], Shivu and Another vs.
Registrar General, High Court of Karnataka and Another[12], Vikram Singh
and Others vs. State of Punjab[13], Atbir vs. Government Of NCT of
Delhi[14], Mohd. Ajmal Amir Kasab alias Abu Mujahid vs. State of
Maharashtra[15], are some of the cases where this Court, in view of the
overwhelming and aggravating circumstances, declined to consider the
mitigating factor of young age.
18. That the accused was under the influence of alcohol at the time of the
commission of the offence also is not a mitigating factor. It is not a
case where somebody had forcefully administered intoxicating drinks or
drugs to the respondent and made him commit the offence. That he had
taken alcoholic drinks at around 10.00 a.m. is also an indicator to the
premeditation of the crime shortly thereafter. Thus, having regard to the
nature of the crime, the manner in which it was committed and above all,
having regard to the major aggravating factor of extreme repulsion which
has shocked the collective conscience of the community and the Court, as
also the sole mitigating factor of his young age, we are of the opinion
that punishment of life imprisonment is grossly inadequate.
19. We are also fortified in our view by the following decisions of this
Court in similar circumstances. In State of U.P. vs. Satish[16], this
Court reversed the acquittal by the High Court and awarded death
sentence. It was case of rape and murder of a minor girl aged less than
six years. Shivu (supra) was a case of rape and murder of an eighteen
year old girl by the neighbours. The death sentence on both the accused
was upheld by this Court. Bantu vs. State of Uttar Pradesh[17] was a
case of the accused alluring a five year old child with a balloon,
committing rape and murder. The death sentence was upheld by this Court.
Shivaji alias Dadya Shankar Alhat vs. State of Maharashtra[18] was a case
of a nine year old child being taken by a neighbour who promised to help
her to collect wood from the forest, raped and murdered her. This Court
upheld the death sentence. Mohd. Mannan alias Abdul Mannan vs. State of
Bihar[19], authored by one of us (Prasad, J.), is a case of rape and
murder of a seven year old child. The death sentence awarded by the
Sessions Court as confirmed by the High Court was upheld. Rajendra
Pralhadrao Wasnik vs. State of Maharashtra[20] is a case of rape and
murder of a three year old girl child. There also, the death sentence
awarded by the Sessions Court as confirmed by the High Court was upheld
by this Court.
20. Although the High Court in this case referred to several decisions on
sentencing, it is sad to note that there is no discussion on any of the
aggravating and mitigating circumstances. There is no consideration as to
whether the case on facts falls under the rarest of rare category.
21. Chapter XXVIII of Cr.PC (containing Sections 366 to 371) deals with the
process of confirmation of death sentence by the High Court. For the
purpose of ready reference, we shall extract the provisions:
1 “366. Sentence of death to be submitted by Court of Session for
confirmation.-(1) When the Court of Session passes a sentence of death,
the proceedings shall be submitted to the High Court, and the sentence
shall not be executed unless it is confirmed by the High Court.
2 (2) The Court passing the sentence shall commit the convicted person to
jail custody under a warrant.
3
4 367. Power to direct further inquiry to be made or additional evidence to
be taken.-(1) If, when such proceedings are submitted, the High Court
thinks that a further inquiry should be made into or additional evidence
taken upon, any point bearing upon the guilt or innocence of the
convicted person, it may make such inquiry or take such evidence itself,
or direct it to be made or taken by the Court of Session.
5 (2) Unless the High Court otherwise directs, the presence of the
convicted person may be dispensed with when such inquiry is made or such
evidence is taken.
6 (3) When the inquiry or evidence (if any) is not made or taken by the
High Court, the result of such inquiry or evidence shall be certified to
such Court.
7
8 368. Power of High Court to confirm sentence or annul conviction.-In any
case submitted under section 366, the High Court-
a) may confirm the sentence, or pass any other sentence warranted by
law, or
b) may annul the conviction, and convict the accused of any offence of
which the Court of Session might have convicted him, or order a new
trial on the same or an amended charge, or
c) may acquit the accused person:
Provided that no order of confirmation shall be made under this
section until the period allowed for preferring an appeal has expired,
or, if an appeal is presented within such period, until such appeal is
disposed of.
9
10 369. Confirmation or new sentence to be signed by two Judges.-In every
case so submitted, the confirmation of the sentence, or any new sentence
or order passed by the High Court, shall when such Court consists of two
or more Judges, be made, passed and signed by at least two of them.
11
12 370. Procedure in case of difference of opinion.-Where any such case is
heard before a Bench of Judges and such Judges are equally divided in
opinion, the case shall be decided in the manner provided by section 392.
13
14 371. Procedure in cases submitted to High Court for confirmation.-In
cases submitted by the Court of Session to the High Court for the
confirmation of a sentence of death, the proper officer of the High Court
shall, without delay, after the order of confirmation or other order has
been made by the High Court, send a copy of the order under the seal of
the High Court and attested with his official signature, to the Court of
Session.”
15
22. These provisions lay down the detailed procedure on confirmation of
death sentence. The following are the mandatory requirements:
i) Death Reference shall be heard by a Bench of minimum two Judges.
The Chief Justice being the master of roster is free to constitute
a Bench of more Judges.
ii) On any point having a bearing on the guilt or innocence of the
convicted person, for which there is no clarity, the High Court
may,
(a) conduct a further inquiry;
(b) take additional evidence;
(c) may get the inquiry conducted or additional evidence taken
by the Sessions Court.
(iii) On the basis also of the inquiry or additional evidence, if any, the
High Court may,
a) confirm the death sentence;
however, in case the convict has filed an appeal, the same
has to be disposed of before passing the order of
confirmation;
and, no order of confirmation shall be passed until the
period allowed for filing an appeal has expired.
b) pass any other sentence;
c) annul conviction;
d) convict the accused of any offence which the Court of
Sessions would or could have convicted him.
(iv) Amend the charges.
v) Order fresh trial on charges already framed or on amended charges.
vi) May acquit the accused.
vii) In case the Bench is equally divided in opinion, their opinions
shall be laid before a third Judge of that Court and the decision
will depend on the opinion of the third Judge.
viii) If the third Judge before whom the opinions have been placed is of
opinion that the matter should be heard by a larger Bench of
Judges, the reference has to be heard by a larger Bench, in view
of the requirement under Section 392 of Cr.PC.
23. The detailed procedure would clearly show the seriousness with which
the High Court has to consider a reference for the confirmation of death
sentence. In a recent decision in Kunal Majumdar vs. State of
Rajasthan[21], a coordinate Bench of this Court has held that it is a
special and onerous duty of the High Court. To quote:
“18. … A duty is cast upon the High Court to examine the nature and
the manner in which the offence was committed, the mens rea if any, of
the culprit, the plight of the victim as noted by the trial court, the
diabolic manner in which the offence was alleged to have been
performed, the ill-effects it had on the victim as well as the society
at large, the mindset of the culprit vis-à-vis the public interest,
the conduct of the convict immediately after the commission of the
offence and thereafter, the past history of the culprit, the magnitude
of the crime and also the consequences it had on the dependants or the
custodians of the victim. There should be very wide range of
consideration to be made by the High Court dealing with the reference
in order to ensure that the ultimate outcome of the reference would
instill confidence in the minds of peace-loving citizens and also
achieve the object of acting as a deterrent for others from indulging
in such crimes.”
24. The High Court must refer to the special reasons found by the Sessions
Court for inclusion of the case in the rarest of rare category. It has to
be seen that the Court of Sessions has already passed a sentence and what
is required is only confirmation before execution. On the facts and
circumstances of the case, the High Court has to consider whether the
case actually falls under the rarest of rare category. In other words, in
the process of consideration of a case for confirmation of death
sentence, the High Court has to see whether there is presence or absence
of special reasons many of which are indicated in the decision in Kunal
Majumdar’s case (supra). If on such consideration, the High Court finds
that special reasons are available in the facts and circumstances of the
case, the High Court has to confirm the death sentence. In the absence of
such compelling special reasons, the High Court shall award only
imprisonment for life.
25. In the facts of the present case, the offence was committed in 2002.
The accused was convicted and sentenced to death by the Sessions Court in
April, 2004. In November 2004, the High Court commuted the death sentence
to life imprisonment but maintained the other punishments under Sections
376 and 201 of IPC of life and three years respectively. The State moved
this Court in Special Leave Petition in May 2005. Leave was granted on
08.05.2006. For one reason or the other, the matter was finally heard
only in September 2013. The question is: Whether this Court would be
justified in imposing the extreme punishment of death at this point of
time?
26. The Constitution Bench of this Court in Triveniben vs. State of
Gujarat[22] and various other cases had occasion to consider the
consequences of inordinate delay in disposal of mercy petitions under
Article 72 or 161 of the Constitution of India. It has been held by this
Court that when a matter is pending before this Court, the person always
has a ray of hope and hence, it cannot be said that the delay occasioned
in Court would be a ground for commutation of death sentence. To quote:
“16. Even in this Court although there does not appear to be a
specific rule but normally these matters are given top priority.
Although it was contended that this reference before us - a Bench of
five Judges, was listed for hearing after a long interval of time. We
do not know why this reference could not be listed excepted what is
generally well-known the difficulty of providing a Bench of five
Judges but ordinarily it is expected that even in this Court the
matters where the capital punishment is involved will be given top
priority and shall be heard of and disposed of as expeditiously as
possible but it could not be doubted that so long as the matter is
pending in any court before final adjudication even the person who has
been condemned or who has been sentenced to death has a ray of hope.
It therefore could not be contended that he suffers that mental
torture which a person suffers when he knows that he is to be hanged
but waits for the doomsday. The delay therefore which could be
considered while considering the question of commutation of sentence
of death into one of life imprisonment could only be from the date the
judgment by the Apex Court is pronounced i.e. when the judicial
process has come to an end.”
(Emphasis supplied)
27. In a recent decision in Mahendra Nath Das vs. Union of India and
Others[23], this Court had considered the consequence of delay of 12
years in deciding a mercy petition under Article 72 of the Constitution
of India and held that it was a case of inordinate delay causing mental
torment to the convict, and hence commuted the sentence of death to life
imprisonment.
28. It is significant to note that all these were cases where the persons
convicted under Section 302 of IPC and sentenced for death had been
waiting for the decision on the mercy petitions. The instant case is one
where a person whose death sentence has been substituted to life
imprisonment. Apparently reconciled to his fate, he has been serving his
term. Whether, at this juncture, it would be just and proper to alter his
sentence to death is the disturbing question. State of Madhya Pradesh vs.
Vishweshwar Kol[24], authored by one of us (Prasad, J.), was a case where
the Trial Court had convicted the accused and imposed death penalty and
in appeal, the High Court acquitted him. It was a case of bride burning.
The incident was of October, 2003. The Trial Court convicted the accused
under Section 302 of IPC and the sentence of death was passed on
30.04.2004. The High Court acquitted him on 06.12.2004 and this Court
finding that it is a fit case for awarding death sentence and yet taking
note of the course of events referred to above, it was held that:
“11.… notwithstanding the horrendous nature of the crime and that it
called for the capital punishment, we find it difficult to reimpose
the death sentence on the accused at this stage.”
And the accused consequently was awarded sentence of life imprisonment.
29. In the case before us, nine years have passed after substitution of his
death sentence by life imprisonment. We are reluctantly of the view that
it would not be just and proper to alter the sentence from life
imprisonment to death at this stage. In future, in order to avoid such
contingencies, cases where enhancement of life sentence to death is
sought, should be given due priority.
30. Section 53 of the IPC provides for the following punishments:
“First.- Death;
Secondly.- Imprisonment for life;
xxx xxx xxx
Fourthly.-Imprisonment, which is of two descriptions, namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly.-Forfeiture of property;
Sixthly.-Fine.”
31. Imprisonment for life is till the end of the biological life of the
person, as held by a Constitution Bench of this Court in Gopal Vinayak
Godse vs. The State of Maharashtra and Others[25]. However, this Court
has been, for quite some time, conscious of the liberal approach and
sometimes discriminatory too, taken by the States in exercise of their
power under Sections 432 and 433 of Cr.PC in remitting or commuting
sentences. In Jagmohan Singh vs. State of U.P.[26], this Court had
expressed concern about such approach made by the States in remitting
life sentences. That led to the amendment in Cr.PC introducing Section
433A by Act 45 of 1978. Under Section 433A of Cr.PC, a sentence of
imprisonment for life is imposed for an offence for which death is one of
the punishments or where a death sentence is commuted to life under
Section 433, he shall not be released unless he has served fourteen years
of imprisonment. It appears that the provision has been generally
understood to mean that life sentence would only be fourteen years of
incarceration. Taking judicial notice of such a trend, this Court has, in
cases where imposition of death sentence would be too harsh and
imprisonment for life (the way it is understood as above) too inadequate,
in several cases, has adopted different methods to ensure that the
minimum term of life imprisonment ranges from at least twenty years to
the end of natural life. In Shri Bhagwan vs. State of Rajasthan[27],
Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra[28] and Ram
Anup Singh and Others vs. State of Bihar[29], it was 20 years; in Dilip
Premnarayan Tiwari and Another vs. State of Maharashtra[30], it was 25
years; in Neel Kumar alias Anil Kumar vs. State of Haryana[31], it was 30
years; and in Swamy Shraddananda (2) alias Murali Manohar Mishra vs.
State of Karnataka[32], it was till the end of life without remission or
commutation. Ranjit Singh alias Roda vs. Union Territory of
Chandigarh[33] is a case where a person committed a second murder. He
was sentenced for life imprisonment for the first murder. Taking note of
the fact that the co-accused was not given death sentence and awarded
only life imprisonment, this Court in the second offence also awarded
only life imprisonment. However, it was made clear that:
“2. … in case any remission or commutation in respect of his earlier
sentence is granted to him the present sentence should commence
thereafter.”
32. However in some cases, the Court had also been voicing concern about
the statutory basis of such orders. We are of the view that it will do
well in case a proper amendment under Section 53 of IPC is provided,
introducing one more category of punishment - life imprisonment without
commutation or remission. Dr. Justice V. S. Malimath in the Report on
“Committee of Reforms of Criminal Justice System”, submitted in 2003, had
made such a suggestion but so far no serious steps have been taken in
that regard. There could be a provision for imprisonment till death
without remission or commutation.
33. In the present case, the respondent has been awarded life imprisonment
under Section 302 of IPC.
Under Section 376 of IPC also he has been awarded life imprisonment.
The third substantive sentence is under Section 201 of IPC.
All these sentences are ordered to run concurrently.
The sentence of life imprisonment is till the end of one’s biological life.
However, in view of the power of the State under Sections 432 and
433 of Cr.PC, in the present case,
we are of the view that the sentences
shall run consecutively, in case there is remission or commutation.
We
further make it clear that the remission or commutation, if considered in
the case of the respondent, shall be granted only after the mandatory
period of fourteen years in the case of offence under Section 302 of IPC.
34. Section 433A of the Cr.PC has imposed a restriction with regard to the
period of remission or commutation. It is specifically provided that when
a sentence of imprisonment of life, where death is also one of the
punishments provided by law, is remitted or commuted, such person shall
not be released unless he has served at least fourteen years of
imprisonment. In the case of the respondent herein, second life
imprisonment is under Section 376 of IPC. A minimum sentence under
Section 376 of IPC is seven years. Death is not an alternate punishment.
However, the sentence may even be for life or for a term which may
extend to ten years. Of the three options thus available, in view of the
brutal rape of a minor girl child, the Sessions Court has chosen to
impose the extreme punishment of life imprisonment to the respondent.
35. Punishment has a penological purpose.
Reformation, retribution,
prevention, deterrence are some of the major factors in that regard.
Parliament is the collective conscience of the people.
If it has mandated
a minimum sentence for certain offences, the Government being its
delegate, cannot interfere with the same in exercise of their power for
remission or commutation.
Neither Section 432 nor Section 433 of Cr.PC
hence contains a non-obstante provision.
Therefore, the minimum sentence
provided for any offence cannot be and shall not be remitted or commuted by the Government in exercise of their power under Section 432 or 433 of the Cr.PC.
Wherever the Indian Penal Code or such penal statutes have
provided for a minimum sentence for any offence, to that extent, the
power of remission or commutation has to be read as restricted; otherwise
the whole purpose of punishment will be defeated and it will be a mockery
on sentencing.
36. Having regard to the facts and circumstances of the present case, we
make it clear that in the event of State invoking its powers under
Section 432 or 433 of Cr.PC, the sentence under Section 376 of IPC shall
not be remitted or commuted before seven years of imprisonment.
In other
words, in that eventuality, it shall be ensured that the respondent will
first serve the term of life imprisonment under Section 302 of IPC. In
case there is any remission after fourteen years,
then imprisonment for a
minimum period of seven years under Section 376 of IPC shall follow and
thereafter three years of rigorous imprisonment under Section 201 of IPC.
The sentence on fine and default as awarded by the Sessions Court are
maintained as such.
37. The appeal is disposed of as above.
………………………………….…..…………J.
(CHANDRAMAULI KR. PRASAD)
……….……..…...……..……………………J.
(KURIAN JOSEPH)
New Delhi;
September 27, 2013.
-----------------------
[1] (1996) 6 SCC 250
[2] (1980) 2 SCC 684
[3] (1983) 3 SCC 470
[4] (2013) 5 SCC 546
[5] (2009) 4 SCC 736
[6] (1987) 3 SCC 80
[7] (2002) 5 SCC 234
[8] (2011) 14 SCC 401
[9] JT (2013) SC 310
[10] (1994) 2 SCC 220: (1994) SCC (Cri) 358
[11] (1999) 5 SCC 1: (1999) SCC (Cri) 638
[12] (2007) 4 SCC 713
[13] (2010) 3 SCC 56
[14] (2010) 9 SCC 1
[15] (2012) 9 SCC 1
[16] (2005) 3 SCC 114
[17] (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353
[18] (2008) 15 SCC 269
[19] (2011) 5 SCC 317
[20] (2012) 4 SCC 37: (2012) 2 SCC (Cri) 30
[21] (2012) 9 SCC 320
[22] (1989) 1 SCC 678
[23] (2013) 6 SCC 253
[24] (2011) 11 SCC 472
[25] AIR 1961 SC 600
[26] (1973) 1 SCC 20
[27] (2001) 6 SCC 296
[28] (2002) 2 SCC 35
[29] (2002) 6 SCC 686
[30] (2010) 1 SCC 775
[31] (2012) 5 SCC 766
[32] (2008) 13 SCC 767
[33] (1984) 1 SCC 31
-----------------------
REPORTABLE
-----------------------
28
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 659 OF 2006
State of Rajasthan … Appellant (s)
Versus
Jamil Khan … Respondent (s)
J U D G M E N T
KURIAN, J.:
1. All murders shock the community; but certain murders shock the
conscience of the Court and the community. The distinguishing aspect of
the latter category is that there is shock coupled with extreme
revulsion. What should be the penological approach in that category is
one question arising for consideration in this case.
What is the scope of
consideration of Death Reference by the High Court under
Chapter XXVIII of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘Cr.PC’), is the other question.
Whether there is any
restriction on the exercise of power under Section 432 Cr.PC for
remission and Section 433 Cr.PC for commutation in cases of minimum
sentence is the third main issue.
2. On 23.12.2002, Pooja, a tiny girl below five years of age was brutally
raped and thereafter murdered by the respondent. He packed the dead body
in a sack and further in a bag and secretly left it in a train. By
Judgment dated 15.04.2004, the Sessions Court, having regard to the
overwhelming evidence, convicted the respondent under Section 302 of the
Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and
sentenced him to death. He was also found guilty under Section 376 of IPC
and was sentenced to imprisonment for life with a fine of Rs.2,000/-.
Under Section 201 of IPC, he was convicted and sentenced to rigorous
imprisonment for three years and a fine of Rs.500/-. There was default
clause as well. The Sessions Court mainly relied on the decision of this
Court in Kamta Tiwari vs. State of Madhya Pradesh[1]. In that case, a
seven year old child was raped, murdered and the body was thrown into a
well. This Court awarded death sentence. In the instant case, the Death
Reference was considered by the High Court of Rajasthan along with the
Appeal leading to the impugned Judgment dated 09.11.2004.
The case law on sentencing has been extensively referred to by the
High Court. But without reference to the aggravating or mitigating
circumstances or to the special reasons, the High Court held that the case
does not fall in the category of rarest of rare cases warranting death
sentence. Thus, the High Court declined to confirm the death sentence and
awarded life imprisonment under Section 302 of IPC. The conviction and
sentence under Sections 376 and 201 of IPC was maintained.
3. The State has come in appeal contending that it is a fit case where
punishment of death should be awarded to the respondent. There is no
appeal by the respondent challenging the conviction and sentence as
confirmed by the High Court under Sections 302, 376 and 201 of IPC.
4. Having regard to the above background, it is not necessary to
extensively refer to the factual matrix, except for the relevant aspects.
However, to understand the nature of the crime, we shall refer to the
injuries noticed by the medical board in the post mortem:
“Ext. genital part blood stained and vaginal bleeding present, vaginal
tear (2nd degree) extend upto anal office postrly, hymen rupture, cervix
admit one finger loose, vaginal smear is taken, send for FSL & slide is
prepared from vaginal secretion, send for FSL.
1. Ligature mark 1cm x 0.5cm deep is present around the whole neck
below the thyroid cartilage, base is brownish Red dry parchment lobe
appearance on cut sectioned the sub cut tissue beneath the ligature
mark is ecchymosed;
2. Abrasion- 3cm x 0.2cm in size three in number parallel to each
other, vertical position mid of the neck antrly below the ligature
mark;
3. Ligature mark 1cm breadth is present on antero lateral and post
part of middle of both leg, this mark is post mortem in nature.
Injury No. 1 & 2 ante mortem in nature.”
5. In the opinion of the Medical Board, asphyxia due to strangulation was
the cause of death.
6. The injuries present on the body of the tiny child would clearly
establish the barbaric nature of the commission of the offence. The
respondent had some previous acquaintance with the child when he used to
visit his parents who stayed in the neigbourhood. It has come in evidence
that the respondent had planned the crime. On the fateful day, he had
come to the place, drunk, carrying with him a sack and a blue bag. PW2,
who knows the accused, had seen him proceeding towards his house carrying
a white coloured katta (sack) on his shoulder and a blue coloured bag in
his hands. According to PW3, the accused had gone to his shop, bought
peanuts and madhu gutka. He lured the child by offering peanuts and took
her to his parents’ house. PW3 had seen the accused carrying the loaded
bag on his shoulder. It is not necessary to discuss the other evidence
available from the recovered articles which all have conclusively
established that it was the respondent who committed the offence.
7. Aggravating factors qua the crime and mitigating factors qua the
criminal should be properly balanced so as to decide whether an offence
of murder would fall under the rarest of rare category to be visited with
the extreme punishment of death. The Court, under Section 354(3) of
Cr.PC, has to give special reasons, in case death sentence is awarded.
The very decision of the Court that a case falls under the rarest of rare
category would ordinarily meet the requirement of special reasons under
Section 354(3) of the Cr.PC since inclusion of a case in that category
can be only on such finding. As held by the Constitution Bench of this
Court in Bachan Singh vs. State of Punjab[2], the finding would depend on
facts and circumstances of each case. To quote:
“201. …As we read Sections 354(3) and 235(2) and other related
provisions of the Code of 1973, it is quite clear to us that for
making the choice of punishment or for ascertaining the existence or
absence of “special reasons” in that context, the court must pay due
regard both to the crime and the criminal. What is the relative weight
to be given to the aggravating and mitigating factors, depends on the
facts and circumstances of the particular case. More often than not,
these two aspects are so intertwined that it is difficult to give a
separate treatment to each of them. This is so because “style is the
man”. In many cases, the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated index of the depraved
character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of the
criminal in two separate watertight compartments. In a sense, to kill
is to be cruel and, therefore all murders are cruel. But such cruelty
may vary in its degree of culpability. And it is only when the
culpability assumes the proportion of extreme depravity that “special
reasons” can legitimately be said to exist.”
(Emphasis supplied)
8. In Machhi Singh and Others vs. State of Punjab[3], a three-Judge Bench
of this Court has made an attempt to cull out certain aggravating and
mitigating circumstances and it has been held that in case imprisonment
for life is inadequate in view of the peculiar aspects of the crime, then
alone the sentence of death should be awarded. To quote:
“38. xxx xxx xxx
i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration
along with the circumstances of the ‘crime’.
iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant
circumstances of the crime, and provided, and only
provided, the option to impose sentence of imprisonment for
life cannot be conscientiously exercised having regard to
the nature and circumstances of the crime and all the
relevant circumstances.
iv) A balance-sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for
a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after
according maximum weightage to the mitigating circumstances
which speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account
the answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the court
would proceed to do so.”
(Emphasis supplied)
9. In Shankar Kisanrao Khade vs. State of Maharashtra[4], referring to the
recent decisions (of about fifteen years), this Court has summarized the
mitigating factors and aggravating factors. Young age of the accused,
the possibility of reforming and rehabilitating the accused, the accused
having no prior criminal record, the accused not likely to be a menace or
threat or danger to society or the community, the accused having been
acquitted by one of the courts, the crime not being premeditated, the
case being of circumstantial evidence, etc., are some of the mitigating
factors indicated therein. The cruel, diabolic, inhuman, depraved and
gruesome nature of the crime, the crime result in public abhorrence,
shocks the judicial conscience or the conscience of society or the
community, the reform or rehabilitation of the convict is not likely or
that he would be a menace to society, the crime was either unprovoked or
that it was premeditated, etc., are some of the aggravating factors
indicated in the said decision.
10. In State of Uttar Pradesh vs. Sattan alias Satyendra and Others[5],
this Court had an occasion to consider the penological purpose of
sentencing. To quote:
“30. “21.‘9. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons and property of
the people is an essential function of the State. It could be achieved
through instrumentality of criminal law. Undoubtedly, there is a cross-
cultural conflict where living law must find answer to the new
challenges and the courts are required to mould the sentencing system
to meet the challenges. The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of society and stamping
out criminal proclivity must be the object of law which must be
achieved by imposing appropriate sentence. Therefore, law as a
cornerstone of the edifice of "order" should meet the challenges
confronting the society. ...
10. Therefore, undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine the public
confidence in the efficacy of law and society could not long endure
under such serious threats. It is, therefore, the duty of every court
to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc. …”
(Emphasis supplied)
11. This Court did not mince words while discussing the requirement of
adequate punishment in Mahesh s/o Ram Narain and Others vs. State of
Madhya Pradesh[6]. To quote:
“6. …it will be a mockery of justice to permit these appellants to
escape the extreme penalty of law when faced with such evidence and
such cruel acts. To give the lesser punishment for the appellants
would be to render the justicing system of this country suspect. The
common man will lose faith in courts. In such cases, he understands
and appreciates the language of deterrence more than the reformative
jargon. ...”
(Emphasis supplied)
12. In Devender Pal Singh vs. State of NCT of Delhi and Another[7], after
referring to the Bachan Singh and Machhi Singh cases (supra), this Court
held that when the collective conscience of the community is so shocked,
it will expect the judiciary to inflict death penalty. To quote:
“58. From Bachan Singh v. State of Punjab and Machhi Singh and Others
v. State of Punjab, the principle culled out is that when the
collective conscience of the community is so shocked, that it will
expect the holders of the judicial power center to inflict death
penalty irrespective of their personal opinion as regards desirability
or otherwise of retaining death penalty, the same can be awarded. It
was observed:
The community may entertain such sentiment in the following
circumstances:
(1) 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.
(2) When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin for
money or reward; or cold-blooded murder for gains of a person
vis-a-vis whom the murderer is in a dominating position or in a
position of trust; or murder is committed in the course of
betrayal of the motherland.
(3) 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; or in cases of ‘bride
burning’ or ‘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.
(4) 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.
(5) When the victim of murder is an innocent child, or a
helpless woman or old or infirm person or a person vis-a-vis
whom the murderer is in a dominating position, or a public
figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the
light of the aforesaid propositions and taking into account the
answers to the questions posed by way of the test for the rarest of
rare cases, the circumstances of the case are such that death sentence
is warranted, the court would proceed to do so".
(Emphasis supplied)
13. According to Lord Denning, the punishment inflicted for grave crimes
should reflect the revulsion felt by the great majority of citizens. To
him, deterrence, reformation or prevention are not the determinative
factors. His statement to the Royal Commission on Capital Punishment made
in 1950 reads:
“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.”
(Emphasis supplied)
14. As held by this Court in Ajitsingh Harnamsingh Gujral vs. State of
Maharashtra[8], a distinction has to be drawn between ordinary murders
and murders which are gruesome, ghastly or horrendous. In such cases,
“93. …While life sentence should be given in the former, the latter
belongs to the category of the rarest of rare cases, and hence death
sentence should be given. …”
15. Any murder would cause a shock to the society but all murders may not
cause revulsion in society. Certain murders shock the collective
conscience of the Court and community. Heinous rape of minors followed by
murder is one such instance of a crime which shocks and repulses the
collective conscience of the community and the Court. Such crimes arouse
extreme revulsion in society. While culling out the rarest of rare cases
on the basis of aggravating and mitigating factors, we are of the view
that such crimes, which shock the collective conscience of the society by
creating extreme revulsion in the minds of the people, are to be treated
as the rarest of rare category.
16. Although the crime in the present case is gruesome and renders a
loathsome shock to the community, we are bound by the ratio in Bachan
Singh’s case (supra) which requires the Court to consider the mitigating
factors qua the criminal. In the instant case, the respondent no doubt
was young at the time of the commission of the offence, above nineteen
years of age. He was a labourer. But while considering the mitigating
factors, poverty has to be understood in light of whether it was a factor
influencing the commission of offence. In a recent decision by coordinate
Bench of this Court, authored by one of us (Kurian, J.) in Sunil Damodar
Gaikwad vs. State of Maharashtra[9], decided on 10.09.2013, in Criminal
Appeal Nos. 165-166 of 2011, it has been held that:
“Poverty, socio-economic, psychic compulsions, undeserved adversities
in life are thus some of the mitigating factors to be considered, in
addition to those indicated in Bachan Singh and Machhi Singh cases.”
That was a case where a poor tailor finding it difficult to maintain his
family of wife and three children, one of whom also required constant
treatment, decided to wipe out the entire family. Poverty shall not be
understood and applied as disjunct from the factual position. In other
words, poverty or socio-economic, psychic or undeserved adversities in life
shall be considered as mitigating factors only if those factors have a
compelling or advancing role to play in the commission of the crime or
otherwise influencing the criminal. Thus, merely because the offender is a
poor person, his poverty will not be a mitigating factor. In this case the
mitigating factor of the crime is not poverty. The lust fuelled crime of
rape and murder and that too of a minor child of tender age has nothing to
do with the poverty, socio-economic background or other psychic compulsions
of the criminal. The decision in Sunil Damodar Gaikwad’s case (supra) will
stand clarified to the above extent.
17. In the instant case, there cannot be any doubt that the crime is of
extreme mental perversion. It was a well-planned crime as can be seen
from the discussion at Paragraph 7 ibid. The major mitigating factor as
far as respondent in this case is concerned is that he was young.
However, in Shankar Kisanrao’s case (supra), this Court held that the
fact that the accused is young by itself is not a major and deciding
factor while considering the mitigating factors. Dhananjoy Chatterjee vs.
State of W.B.[10], Jai Kumar vs. State of M.P.[11], Shivu and Another vs.
Registrar General, High Court of Karnataka and Another[12], Vikram Singh
and Others vs. State of Punjab[13], Atbir vs. Government Of NCT of
Delhi[14], Mohd. Ajmal Amir Kasab alias Abu Mujahid vs. State of
Maharashtra[15], are some of the cases where this Court, in view of the
overwhelming and aggravating circumstances, declined to consider the
mitigating factor of young age.
18. That the accused was under the influence of alcohol at the time of the
commission of the offence also is not a mitigating factor. It is not a
case where somebody had forcefully administered intoxicating drinks or
drugs to the respondent and made him commit the offence. That he had
taken alcoholic drinks at around 10.00 a.m. is also an indicator to the
premeditation of the crime shortly thereafter. Thus, having regard to the
nature of the crime, the manner in which it was committed and above all,
having regard to the major aggravating factor of extreme repulsion which
has shocked the collective conscience of the community and the Court, as
also the sole mitigating factor of his young age, we are of the opinion
that punishment of life imprisonment is grossly inadequate.
19. We are also fortified in our view by the following decisions of this
Court in similar circumstances. In State of U.P. vs. Satish[16], this
Court reversed the acquittal by the High Court and awarded death
sentence. It was case of rape and murder of a minor girl aged less than
six years. Shivu (supra) was a case of rape and murder of an eighteen
year old girl by the neighbours. The death sentence on both the accused
was upheld by this Court. Bantu vs. State of Uttar Pradesh[17] was a
case of the accused alluring a five year old child with a balloon,
committing rape and murder. The death sentence was upheld by this Court.
Shivaji alias Dadya Shankar Alhat vs. State of Maharashtra[18] was a case
of a nine year old child being taken by a neighbour who promised to help
her to collect wood from the forest, raped and murdered her. This Court
upheld the death sentence. Mohd. Mannan alias Abdul Mannan vs. State of
Bihar[19], authored by one of us (Prasad, J.), is a case of rape and
murder of a seven year old child. The death sentence awarded by the
Sessions Court as confirmed by the High Court was upheld. Rajendra
Pralhadrao Wasnik vs. State of Maharashtra[20] is a case of rape and
murder of a three year old girl child. There also, the death sentence
awarded by the Sessions Court as confirmed by the High Court was upheld
by this Court.
20. Although the High Court in this case referred to several decisions on
sentencing, it is sad to note that there is no discussion on any of the
aggravating and mitigating circumstances. There is no consideration as to
whether the case on facts falls under the rarest of rare category.
21. Chapter XXVIII of Cr.PC (containing Sections 366 to 371) deals with the
process of confirmation of death sentence by the High Court. For the
purpose of ready reference, we shall extract the provisions:
1 “366. Sentence of death to be submitted by Court of Session for
confirmation.-(1) When the Court of Session passes a sentence of death,
the proceedings shall be submitted to the High Court, and the sentence
shall not be executed unless it is confirmed by the High Court.
2 (2) The Court passing the sentence shall commit the convicted person to
jail custody under a warrant.
3
4 367. Power to direct further inquiry to be made or additional evidence to
be taken.-(1) If, when such proceedings are submitted, the High Court
thinks that a further inquiry should be made into or additional evidence
taken upon, any point bearing upon the guilt or innocence of the
convicted person, it may make such inquiry or take such evidence itself,
or direct it to be made or taken by the Court of Session.
5 (2) Unless the High Court otherwise directs, the presence of the
convicted person may be dispensed with when such inquiry is made or such
evidence is taken.
6 (3) When the inquiry or evidence (if any) is not made or taken by the
High Court, the result of such inquiry or evidence shall be certified to
such Court.
7
8 368. Power of High Court to confirm sentence or annul conviction.-In any
case submitted under section 366, the High Court-
a) may confirm the sentence, or pass any other sentence warranted by
law, or
b) may annul the conviction, and convict the accused of any offence of
which the Court of Session might have convicted him, or order a new
trial on the same or an amended charge, or
c) may acquit the accused person:
Provided that no order of confirmation shall be made under this
section until the period allowed for preferring an appeal has expired,
or, if an appeal is presented within such period, until such appeal is
disposed of.
9
10 369. Confirmation or new sentence to be signed by two Judges.-In every
case so submitted, the confirmation of the sentence, or any new sentence
or order passed by the High Court, shall when such Court consists of two
or more Judges, be made, passed and signed by at least two of them.
11
12 370. Procedure in case of difference of opinion.-Where any such case is
heard before a Bench of Judges and such Judges are equally divided in
opinion, the case shall be decided in the manner provided by section 392.
13
14 371. Procedure in cases submitted to High Court for confirmation.-In
cases submitted by the Court of Session to the High Court for the
confirmation of a sentence of death, the proper officer of the High Court
shall, without delay, after the order of confirmation or other order has
been made by the High Court, send a copy of the order under the seal of
the High Court and attested with his official signature, to the Court of
Session.”
15
22. These provisions lay down the detailed procedure on confirmation of
death sentence. The following are the mandatory requirements:
i) Death Reference shall be heard by a Bench of minimum two Judges.
The Chief Justice being the master of roster is free to constitute
a Bench of more Judges.
ii) On any point having a bearing on the guilt or innocence of the
convicted person, for which there is no clarity, the High Court
may,
(a) conduct a further inquiry;
(b) take additional evidence;
(c) may get the inquiry conducted or additional evidence taken
by the Sessions Court.
(iii) On the basis also of the inquiry or additional evidence, if any, the
High Court may,
a) confirm the death sentence;
however, in case the convict has filed an appeal, the same
has to be disposed of before passing the order of
confirmation;
and, no order of confirmation shall be passed until the
period allowed for filing an appeal has expired.
b) pass any other sentence;
c) annul conviction;
d) convict the accused of any offence which the Court of
Sessions would or could have convicted him.
(iv) Amend the charges.
v) Order fresh trial on charges already framed or on amended charges.
vi) May acquit the accused.
vii) In case the Bench is equally divided in opinion, their opinions
shall be laid before a third Judge of that Court and the decision
will depend on the opinion of the third Judge.
viii) If the third Judge before whom the opinions have been placed is of
opinion that the matter should be heard by a larger Bench of
Judges, the reference has to be heard by a larger Bench, in view
of the requirement under Section 392 of Cr.PC.
23. The detailed procedure would clearly show the seriousness with which
the High Court has to consider a reference for the confirmation of death
sentence. In a recent decision in Kunal Majumdar vs. State of
Rajasthan[21], a coordinate Bench of this Court has held that it is a
special and onerous duty of the High Court. To quote:
“18. … A duty is cast upon the High Court to examine the nature and
the manner in which the offence was committed, the mens rea if any, of
the culprit, the plight of the victim as noted by the trial court, the
diabolic manner in which the offence was alleged to have been
performed, the ill-effects it had on the victim as well as the society
at large, the mindset of the culprit vis-à-vis the public interest,
the conduct of the convict immediately after the commission of the
offence and thereafter, the past history of the culprit, the magnitude
of the crime and also the consequences it had on the dependants or the
custodians of the victim. There should be very wide range of
consideration to be made by the High Court dealing with the reference
in order to ensure that the ultimate outcome of the reference would
instill confidence in the minds of peace-loving citizens and also
achieve the object of acting as a deterrent for others from indulging
in such crimes.”
24. The High Court must refer to the special reasons found by the Sessions
Court for inclusion of the case in the rarest of rare category. It has to
be seen that the Court of Sessions has already passed a sentence and what
is required is only confirmation before execution. On the facts and
circumstances of the case, the High Court has to consider whether the
case actually falls under the rarest of rare category. In other words, in
the process of consideration of a case for confirmation of death
sentence, the High Court has to see whether there is presence or absence
of special reasons many of which are indicated in the decision in Kunal
Majumdar’s case (supra). If on such consideration, the High Court finds
that special reasons are available in the facts and circumstances of the
case, the High Court has to confirm the death sentence. In the absence of
such compelling special reasons, the High Court shall award only
imprisonment for life.
25. In the facts of the present case, the offence was committed in 2002.
The accused was convicted and sentenced to death by the Sessions Court in
April, 2004. In November 2004, the High Court commuted the death sentence
to life imprisonment but maintained the other punishments under Sections
376 and 201 of IPC of life and three years respectively. The State moved
this Court in Special Leave Petition in May 2005. Leave was granted on
08.05.2006. For one reason or the other, the matter was finally heard
only in September 2013. The question is: Whether this Court would be
justified in imposing the extreme punishment of death at this point of
time?
26. The Constitution Bench of this Court in Triveniben vs. State of
Gujarat[22] and various other cases had occasion to consider the
consequences of inordinate delay in disposal of mercy petitions under
Article 72 or 161 of the Constitution of India. It has been held by this
Court that when a matter is pending before this Court, the person always
has a ray of hope and hence, it cannot be said that the delay occasioned
in Court would be a ground for commutation of death sentence. To quote:
“16. Even in this Court although there does not appear to be a
specific rule but normally these matters are given top priority.
Although it was contended that this reference before us - a Bench of
five Judges, was listed for hearing after a long interval of time. We
do not know why this reference could not be listed excepted what is
generally well-known the difficulty of providing a Bench of five
Judges but ordinarily it is expected that even in this Court the
matters where the capital punishment is involved will be given top
priority and shall be heard of and disposed of as expeditiously as
possible but it could not be doubted that so long as the matter is
pending in any court before final adjudication even the person who has
been condemned or who has been sentenced to death has a ray of hope.
It therefore could not be contended that he suffers that mental
torture which a person suffers when he knows that he is to be hanged
but waits for the doomsday. The delay therefore which could be
considered while considering the question of commutation of sentence
of death into one of life imprisonment could only be from the date the
judgment by the Apex Court is pronounced i.e. when the judicial
process has come to an end.”
(Emphasis supplied)
27. In a recent decision in Mahendra Nath Das vs. Union of India and
Others[23], this Court had considered the consequence of delay of 12
years in deciding a mercy petition under Article 72 of the Constitution
of India and held that it was a case of inordinate delay causing mental
torment to the convict, and hence commuted the sentence of death to life
imprisonment.
28. It is significant to note that all these were cases where the persons
convicted under Section 302 of IPC and sentenced for death had been
waiting for the decision on the mercy petitions. The instant case is one
where a person whose death sentence has been substituted to life
imprisonment. Apparently reconciled to his fate, he has been serving his
term. Whether, at this juncture, it would be just and proper to alter his
sentence to death is the disturbing question. State of Madhya Pradesh vs.
Vishweshwar Kol[24], authored by one of us (Prasad, J.), was a case where
the Trial Court had convicted the accused and imposed death penalty and
in appeal, the High Court acquitted him. It was a case of bride burning.
The incident was of October, 2003. The Trial Court convicted the accused
under Section 302 of IPC and the sentence of death was passed on
30.04.2004. The High Court acquitted him on 06.12.2004 and this Court
finding that it is a fit case for awarding death sentence and yet taking
note of the course of events referred to above, it was held that:
“11.… notwithstanding the horrendous nature of the crime and that it
called for the capital punishment, we find it difficult to reimpose
the death sentence on the accused at this stage.”
And the accused consequently was awarded sentence of life imprisonment.
29. In the case before us, nine years have passed after substitution of his
death sentence by life imprisonment. We are reluctantly of the view that
it would not be just and proper to alter the sentence from life
imprisonment to death at this stage. In future, in order to avoid such
contingencies, cases where enhancement of life sentence to death is
sought, should be given due priority.
30. Section 53 of the IPC provides for the following punishments:
“First.- Death;
Secondly.- Imprisonment for life;
xxx xxx xxx
Fourthly.-Imprisonment, which is of two descriptions, namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly.-Forfeiture of property;
Sixthly.-Fine.”
31. Imprisonment for life is till the end of the biological life of the
person, as held by a Constitution Bench of this Court in Gopal Vinayak
Godse vs. The State of Maharashtra and Others[25]. However, this Court
has been, for quite some time, conscious of the liberal approach and
sometimes discriminatory too, taken by the States in exercise of their
power under Sections 432 and 433 of Cr.PC in remitting or commuting
sentences. In Jagmohan Singh vs. State of U.P.[26], this Court had
expressed concern about such approach made by the States in remitting
life sentences. That led to the amendment in Cr.PC introducing Section
433A by Act 45 of 1978. Under Section 433A of Cr.PC, a sentence of
imprisonment for life is imposed for an offence for which death is one of
the punishments or where a death sentence is commuted to life under
Section 433, he shall not be released unless he has served fourteen years
of imprisonment. It appears that the provision has been generally
understood to mean that life sentence would only be fourteen years of
incarceration. Taking judicial notice of such a trend, this Court has, in
cases where imposition of death sentence would be too harsh and
imprisonment for life (the way it is understood as above) too inadequate,
in several cases, has adopted different methods to ensure that the
minimum term of life imprisonment ranges from at least twenty years to
the end of natural life. In Shri Bhagwan vs. State of Rajasthan[27],
Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra[28] and Ram
Anup Singh and Others vs. State of Bihar[29], it was 20 years; in Dilip
Premnarayan Tiwari and Another vs. State of Maharashtra[30], it was 25
years; in Neel Kumar alias Anil Kumar vs. State of Haryana[31], it was 30
years; and in Swamy Shraddananda (2) alias Murali Manohar Mishra vs.
State of Karnataka[32], it was till the end of life without remission or
commutation. Ranjit Singh alias Roda vs. Union Territory of
Chandigarh[33] is a case where a person committed a second murder. He
was sentenced for life imprisonment for the first murder. Taking note of
the fact that the co-accused was not given death sentence and awarded
only life imprisonment, this Court in the second offence also awarded
only life imprisonment. However, it was made clear that:
“2. … in case any remission or commutation in respect of his earlier
sentence is granted to him the present sentence should commence
thereafter.”
32. However in some cases, the Court had also been voicing concern about
the statutory basis of such orders. We are of the view that it will do
well in case a proper amendment under Section 53 of IPC is provided,
introducing one more category of punishment - life imprisonment without
commutation or remission. Dr. Justice V. S. Malimath in the Report on
“Committee of Reforms of Criminal Justice System”, submitted in 2003, had
made such a suggestion but so far no serious steps have been taken in
that regard. There could be a provision for imprisonment till death
without remission or commutation.
33. In the present case, the respondent has been awarded life imprisonment
under Section 302 of IPC.
Under Section 376 of IPC also he has been awarded life imprisonment.
The third substantive sentence is under Section 201 of IPC.
All these sentences are ordered to run concurrently.
The sentence of life imprisonment is till the end of one’s biological life.
However, in view of the power of the State under Sections 432 and
433 of Cr.PC, in the present case,
we are of the view that the sentences
shall run consecutively, in case there is remission or commutation.
We
further make it clear that the remission or commutation, if considered in
the case of the respondent, shall be granted only after the mandatory
period of fourteen years in the case of offence under Section 302 of IPC.
34. Section 433A of the Cr.PC has imposed a restriction with regard to the
period of remission or commutation. It is specifically provided that when
a sentence of imprisonment of life, where death is also one of the
punishments provided by law, is remitted or commuted, such person shall
not be released unless he has served at least fourteen years of
imprisonment. In the case of the respondent herein, second life
imprisonment is under Section 376 of IPC. A minimum sentence under
Section 376 of IPC is seven years. Death is not an alternate punishment.
However, the sentence may even be for life or for a term which may
extend to ten years. Of the three options thus available, in view of the
brutal rape of a minor girl child, the Sessions Court has chosen to
impose the extreme punishment of life imprisonment to the respondent.
35. Punishment has a penological purpose.
Reformation, retribution,
prevention, deterrence are some of the major factors in that regard.
Parliament is the collective conscience of the people.
If it has mandated
a minimum sentence for certain offences, the Government being its
delegate, cannot interfere with the same in exercise of their power for
remission or commutation.
Neither Section 432 nor Section 433 of Cr.PC
hence contains a non-obstante provision.
Therefore, the minimum sentence
provided for any offence cannot be and shall not be remitted or commuted by the Government in exercise of their power under Section 432 or 433 of the Cr.PC.
Wherever the Indian Penal Code or such penal statutes have
provided for a minimum sentence for any offence, to that extent, the
power of remission or commutation has to be read as restricted; otherwise
the whole purpose of punishment will be defeated and it will be a mockery
on sentencing.
36. Having regard to the facts and circumstances of the present case, we
make it clear that in the event of State invoking its powers under
Section 432 or 433 of Cr.PC, the sentence under Section 376 of IPC shall
not be remitted or commuted before seven years of imprisonment.
In other
words, in that eventuality, it shall be ensured that the respondent will
first serve the term of life imprisonment under Section 302 of IPC. In
case there is any remission after fourteen years,
then imprisonment for a
minimum period of seven years under Section 376 of IPC shall follow and
thereafter three years of rigorous imprisonment under Section 201 of IPC.
The sentence on fine and default as awarded by the Sessions Court are
maintained as such.
37. The appeal is disposed of as above.
………………………………….…..…………J.
(CHANDRAMAULI KR. PRASAD)
……….……..…...……..……………………J.
(KURIAN JOSEPH)
New Delhi;
September 27, 2013.
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[1] (1996) 6 SCC 250
[2] (1980) 2 SCC 684
[3] (1983) 3 SCC 470
[4] (2013) 5 SCC 546
[5] (2009) 4 SCC 736
[6] (1987) 3 SCC 80
[7] (2002) 5 SCC 234
[8] (2011) 14 SCC 401
[9] JT (2013) SC 310
[10] (1994) 2 SCC 220: (1994) SCC (Cri) 358
[11] (1999) 5 SCC 1: (1999) SCC (Cri) 638
[12] (2007) 4 SCC 713
[13] (2010) 3 SCC 56
[14] (2010) 9 SCC 1
[15] (2012) 9 SCC 1
[16] (2005) 3 SCC 114
[17] (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353
[18] (2008) 15 SCC 269
[19] (2011) 5 SCC 317
[20] (2012) 4 SCC 37: (2012) 2 SCC (Cri) 30
[21] (2012) 9 SCC 320
[22] (1989) 1 SCC 678
[23] (2013) 6 SCC 253
[24] (2011) 11 SCC 472
[25] AIR 1961 SC 600
[26] (1973) 1 SCC 20
[27] (2001) 6 SCC 296
[28] (2002) 2 SCC 35
[29] (2002) 6 SCC 686
[30] (2010) 1 SCC 775
[31] (2012) 5 SCC 766
[32] (2008) 13 SCC 767
[33] (1984) 1 SCC 31
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REPORTABLE
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