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Friday, May 26, 2017

conviction of the petitioner for the offences punishable under Sections 302, 363, 367, 376(2)(f) and 201 IPC and various sentences imposed upon the petitioner including death sentence under Section 302 IPC and life imprisonment under Section 376(2)(f) IPC. In view of the decision of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India and others.[1], these review petitions were listed in Court for oral hearing.= 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 = after the Judgment under review, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It is asserted that the jail record of the petitioner is without any blemish. The matter is not contested as regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in Bachan Singh (supra) but what is now being projected is that there is a possibility of the accused being reformed and rehabilitated. Though these attempts on part of the petitioner are after the Judgment under review, we have considered the material in that behalf to see if those circumstances warrant a different view. We have given anxious consideration to the material on record but find that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Having taken an overall view of the matter, in our considered view, no case is made out to take a different view in the matter. We, therefore, affirm the view taken in the Judgment under review and dismiss the present Review Petitions..

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                 Review Petition (Crl.) Nos.637-638 of 2015

                                     IN

                    Criminal Appeal Nos.2486-2487 of 2014


Vasanta Sampat Dupare                                     ….. Petitioner

                                   Versus

State of Maharashtra                                   …. Respondent



                               J U D G M E N T


Uday Umesh Lalit, J.



1.    These Review Petitions are directed against  the  Judgment  and  Order
dated 26.11.2014 passed by this Court  in  Criminal  Appeal  Nos.2486-87  of
2014 affirming conviction of the  petitioner  for  the  offences  punishable
under Sections 302, 363, 367, 376(2)(f) and 201 IPC and   various  sentences
imposed upon the petitioner including death sentence under Section  302  IPC
and life imprisonment under Section 376(2)(f) IPC.  In view of the  decision
of this Court in Mohd. Arif  @ Ashfaq v. Registrar, Supreme Court  of  India
and others.[1], these  review  petitions  were  listed  in  Court  for  oral
hearing.



2.    The facts leading to the filing of  criminal  appeals  in  this  Court
including the nature and quality of evidence on record have been dealt  with
and considered in the Judgment  of  this  Court  dated  26.11.2014[2].   The
charge against the petitioner was that the victim,  a  minor  girl  of  four
years was raped and battered to death by  the  petitioner.   The  petitioner
allegedly lured the victim by  giving  her  chocolates,  kidnapped  her  and
after satisfying his lust caused crushing injuries to her with the  help  of
stones weighing about 8.5 kg and 7.5 kg.  The prosecution  relied  upon  the
evidence of PW2 Manisha, PW3 Minal, PW5 Vandana and PW6 Baby Sharma who  had
seen the petitioner taking away the victim on a bicycle on the fateful  day.
  In his disclosure statement under Section  27  of  the  Evidence  Act  the
petitioner had shown the place where dead body of the victim was  lying  and
the tap where  he  had  washed  his  blood  stained  clothes.   The  medical
evidence on record was dealt with in paragraph  14  of  the  Judgment  under
review as under :-

14.   According to the doctor, he  had  found  during  internal  examination
that under scalp haematoma was present over left frontal and  right  frontal
region of size 4cm × 4cm, dark red,  the  frontal  bone  was  fractured  and
depressed, fracture  line  extended  up  to  occipital  bone  through  right
temporal and parietal bone fracture on interior  and  middle  cranial  side.
The subarachnoid haemorrhage was present all  over  the  brain  surface  and
meninges were congested. In  his  opinion,  the  cause  of  death  was  head
injury, associated with the injury on the genital region. He  has  testified
that the two stones that were sent to him in sealed  cover  along  with  the
requisition, Ext.62,  for  opinion,  could  have  been  used  to  cause  the
injuries on the victim. He has weighed the  stones,  which  are,  8.5kg  and
7.5kg, and has opined that there had been forceful sexual intercourse.”


3.    After taking into  account  the  evidence  and  the  circumstances  on
record, this Court in the Judgment under review concluded as under:-

      “On a critical analysis of the evidence on record,  we  are  convinced
that the circumstances that have  been  clearly  established  are  that  the
appellant was seen in the courtyard where the minor girl and other  children
were playing; that the  appellant  was  seen  taking  the  deceased  on  his
bicycle; that he had gone to the grocery shop owned  by  PW-6  to  buy  Mint
chocolate along with her; that the accused had told PW2 that the  child  was
the daughter of his friend and he was going to ‘Tekdi-Wadi’ along  with  the
girl; that the appellant had led to  discovery  of  the  dead  body  of  the
deceased, the place where he had washed his clothes and at his instance  the
stones smeared  with blood were recovered; that the medical  report  clearly
indicates about the injuries sustained by the deceased  on  her  body;  that
the injuries sustained on the private parts have been stated by  the  doctor
to have been caused by forcible sexual intercourse;  that  the  stones  that
were seized were smeared with blood and the medical  evidence   corroborates
the fact that injuries could have been  caused  by  battering  with  stones;
that the chemical analysis report shows that the blood group  found  on  the
clothes  of  the  appellant;  that  the  appellant  has  not   offered   any
explanation with regard to the recovery  made  at  his  instance;  and  that
nothing has been stated in his  examination  under  Section  313  CrPC  that
there was any justifiable reason to implicate him in the crime in  question.
 Thus, we find  that  each  of  the  incriminating  circumstances  has  been
clearly established and the chain of circumstances are conclusive in  nature
to exclude any kind of hypothesis, but the one proposed to  be  proved,  and
lead to a definite conclusion that the crime was committed by  the  accused.
Therefore, we have no hesitation in affirming  the  judgment  of  conviction
rendered by the learned trial Judge and affirmed by the High Court.”





4.    On the issue of death sentence awarded to the petitioner,  this  Court
first considered the principles governing the matter in issue as under:-

“39. Now we shall proceed to deal with the  facet  of  sentence.  In  Bachan
Singh v. State of Punjab[3], the Court held thus:

“(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.”

40. In Bachan Singh case3, the Court referred to the decision in  Furman  v.
Georgia[4] and noted the suggestion given by the learned counsel  about  the
aggravating and the mitigating circumstances.  While  discussing  about  the
aggravating circumstances, the Court  noted  the  aggravating  circumstances
suggested by the counsel which read as follows: (Bachan Singh case3, SCC  p.
749, para 202)
“Aggravating circumstances.—A court may, however,  in  the  following  cases
impose the penalty of death in its discretion:
(a) if the murder has been committed after previous  planning  and  involves
extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union  or
of a member of any police force or of any public servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such  member
or public servant in the lawful discharge of his  duty  as  such  member  or
public servant whether at the time of murder he was such  member  or  public
servant, as the case may be, or had ceased  to  be  such  member  or  public
servant; or
(d) if the murder is of a person who had acted in the  lawful  discharge  of
his duty under Section 43 of the Code of Criminal Procedure,  1973,  or  who
had rendered assistance to a Magistrate or a police  officer  demanding  his
aid or requiring his assistance under Section 37  and  Section  129  of  the
said Code.”
After reproducing the same, the Court opined: (SCC p. 749, para 203)
“203. Stated broadly, there can be no objection to the acceptance  of  these
indicators but as we have indicated already, we would prefer not  to  fetter
judicial discretion by attempting to make an exhaustive enumeration one  way
or the other.”

41.  Thereafter,  the  Court  referred  to  the  suggestions  pertaining  to
mitigating circumstances: (Bachan Singh case3, - SCC p.750 para 206)
“Mitigating circumstances.—In the exercise of its discretion  in  the  above
cases, the court shall take into account the following circumstances.—
(1) That the offence was committed under the influence of extreme mental  or
emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not  be
sentenced to death.
(3) The probability that the accused  would  not  commit  criminal  acts  of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall  by  evidence  prove  that  the  accused  does  not  satisfy
Conditions (3) and (4) above.
(5) That in the facts and circumstances of the  case  the  accused  believed
that he was morally justified in committing the offence.
(6) That the accused  acted  under  the  duress  or  domination  of  another
person.
(7) That the condition of the accused showed that he was mentally  defective
and  that  the  said  defect  impaired  his  capacity  to   appreciate   the
criminality of his conduct.”
After reproducing the above, the Court observed: (SCC p. 750, para 207)
“207. We will do no more than to say that  these  are  undoubtedly  relevant
circumstances and must  be  given  great  weight  in  the  determination  of
sentence.

42. In the said case, the Court has also held  thus:  (Bachan  Singh  case3,
SCC p. 751, para 209)
“209. … It is, therefore, imperative  to  voice  the  concern  that  courts,
aided by the broad illustrative guidelines indicated by us,  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. A real and  abiding  concern  for  the
dignity of human life postulates resistance to taking a life  through  law’s
instrumentality. That ought not to be done save in the rarest of rare  cases
when the alternative option is unquestionably foreclosed.”

43. In Machhi Singh and others v. State of  Punjab[5]  a  three-Judge  Bench
has explained the concept of rarest of the rare cases by stating that:  (SCC
p. 487, para 32)
“32. The reasons  why  the  community  as  a  whole  does  not  endorse  the
humanistic approach reflected in ‘death  sentence-in-no-case’  doctrine  are
not far to seek.  In  the  first  place,  the  very  humanistic  edifice  is
constructed on the foundation of ‘reverence  for  life’  principle.  When  a
member of the community violates this  very  principle  by  killing  another
member, the society may not feel  itself  bound  by  the  shackles  of  this
doctrine. Secondly,  it  has  to  be  realised  that  every  member  of  the
community is able to live with safety without his  or  her  own  life  being
endangered because of the protective arm of the community and on account  of
the rule of law enforced by it. The very existence of the rule  of  law  and
the fear of being brought to book operates as a deterrent of those who  have
no scruples in killing others if it suits their ends. Every  member  of  the
community owes a debt to the community for this protection.”

44. Thereafter, after adverting  to  the  aspects  of  the  feeling  of  the
community and its desire for self-preservation, the Court  opined  that  the
community  may  well  withdraw  the  protection  by  sanctioning  the  death
penalty. The Court in that regard ruled thus: (Machhi Singh  case5,  SCC  p.
487, para 32)
“32. … But the community will not do so in every case. It may do so ‘in  the
rarest of rare cases’ when its collective conscience is so shocked  that  it
will expect the holders of  the  judicial  power  centre  to  inflict  death
penalty irrespective of their personal opinion as  regards  desirability  or
otherwise of retaining death penalty.”
It is apt to state here that in the said case, emphasis was laid on  certain
aspects, namely, manner of commission of murder, motive  for  commission  of
murder, anti-social or socially abhorrent nature of the crime, magnitude  of
crime and personality of the victim of murder.

45. After so enumerating, the propositions  that  emerged  out  from  Bachan
Singh3 were culled out which are as follows: (Machhi  Singh  case5,  SCC  p.
489, para 38)
“38. … The following propositions emerge from Bachan Singh case3:
‘(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.”

46. Thereafter,  the  three-Judge  Bench  opined  that  to  apply  the  said
guidelines, the following questions are required  to  be  answered:  (Machhi
Singh case5, SCC p. 489, para 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?”
In the said case, the Court upheld the extreme penalty of death  in  respect
of three accused persons.”

5.    In the light of the principles as  stated  above,  the  facts  of  the
present matter were considered by this Court in the  Judgment  under  review
as under:-
“57. Keeping  in  view  the  aforesaid  authorities,  we  shall  proceed  to
adumbrate what is the duty of the Court when the  collective  conscience  is
shocked because of the crime committed. When  the  crime  is  diabolical  in
nature and invites abhorrence of the  collective,  it  shocks  the  judicial
conscience  and  impels  it  to  react  keeping  in  view   the   collective
conscience, cry of the community for justice and the intense indignation  at
the manner in which  the  brutal  crime  is  committed.  We  are  absolutely
conscious that Judges while imposing sentence, should never be  swayed  away
by any kind of individual philosophy  and  predilections.  It  should  never
have the flavour of Judge-centric attitude or perception. It has to  satisfy
the test laid down in various precedents relating to the rarest of the  rare
case. We are also required to pose two questions that have  been  stated  in
Machhi Singh case5.

58. Presently, we shall proceed to dwell upon the manner in which the  crime
was committed. Materials on record clearly reveal  that  the  appellant  was
well acquainted with the inhabitants of the locality and as is  demonstrable
he had access to the house of the father of the deceased  and  the  children
used to call him “uncle”. He had lured the deceased to go with him  to  have
chocolates. It is an act of taking advantage of absolute innocence.  He  had
taken the deceased from place to place by his bicycle and  eventually  raped
her in a brutal manner, as if he had an insatiable  and  ravenous  appetite.
The injuries caused on the minor girl are likely to  send  a  chill  in  the
spine of the society and shiver in the marrows of human conscience.  He  had
battered her to death by assaulting her with two heavy stones.  The  injured
minor girl could not have shown any kind of resistance. It  is  not  a  case
where the accused had a momentary lapse. It is also not  a  case  where  the
minor child had died because of profuse bleeding due to rape but because  of
the deliberate cruel assault by the appellant.  After  the  savage  act  was
over, the coolness of the appellant is evident, for he  washed  the  clothes
on the tap and took proper care to hide things. As is manifest, he even  did
not think for a moment the  trauma  and  torture  that  was  caused  to  the
deceased. The gullibility and vulnerability  of  the  four  year  girl,  who
could not have nurtured any idea about the maladroitly  designed  biological
desires of this nature, went with  the  uncle  who  extinguished  her  life-
spark. The barbaric act of the appellant does not remotely show any  concern
for the precious life of a young minor child who had really not  seen  life.
The criminality of the conduct of the appellant is  not  only  depraved  and
debased, but can have a menacing effect on the society. It is calamitous.

60. In the case at hand, as we find, not only was the rape  committed  in  a
brutal manner but murder was also committed in a barbaric manner.  The  rape
of a minor girl child is nothing but a monstrous burial of  her  dignity  in
the darkness. It is a crime against the holy body of a girl  child  and  the
soul of society and such a crime is aggravated by the  manner  in  which  it
has been committed. The nature of the crime and the manner in which  it  has
been  committed  speaks  about  its  uncommonness.  The  crime   speaks   of
depravity, degradation and uncommonality. It  is  diabolical  and  barbaric.
The crime was committed in an inhuman manner. Indubitably, these go  a  long
way to establish the aggravating circumstances.

61. We are absolutely conscious that  mitigating  circumstances  are  to  be
taken into consideration. The learned counsel  for  the  appellant  pointing
out the mitigating circumstances would submit that the appellant is  in  his
mid-fifties and there is possibility of his reformation. Be  it  noted,  the
appellant was aged about forty-seven years at the time of commission of  the
crime. As is noticeable, there has been  no  remorse  on  the  part  of  the
appellant. There are cases when this Court has commuted the  death  sentence
to life finding that the accused has expressed remorse or the crime was  not
premeditated. But the obtaining factual matrix when unfolded stage by  stage
would show the premeditation, the proclivity and the rapacious  desire.  The
learned counsel would submit that the appellant had no criminal  antecedents
but we find that he was a history-sheeter and had a number of cases  pending
against him. That alone may not be sufficient. The appalling  cruelty  shown
by  him  to  the  minor  girl  child  is  extremely  shocking  and  it  gets
accentuated, when his age is taken into consideration. It was not  committed
under any mental stress or emotional disturbance  and  it  is  difficult  to
comprehend that he would not commit such  acts  and  would  be  reformed  or
rehabilitated. As the  circumstances  would  graphically  depict,  he  would
remain a menace to society, for a defenceless child has become his prey.  In
our considered opinion, there are no mitigating circumstances.”


6.    The above quoted observations of this Court in Judgment  under  review
show that the aggravating facts were considered in paragraphs 58 and 60  and
the entirety of the  matter  including  the  mitigating  circumstances  were
dealt with more particularly in paragraph 61.   The  aggravating  facts  not
only showed the extreme depravity but in the  opinion  of  this  Court  they
brought to the fore the diabolical and barbaric manner in  which  the  crime
was committed.  The Court did  not  find  any  mitigating  circumstances  in
favour of the accused to tilt the balance in his favour for awarding  lesser
punishment.

7.    At this juncture, it may be noted that the decision of this  Court  in
Machhi  Singh  (supra)  shows  that  after  having  laid   down   oft-quoted
principles, this Court considered individual cases of accused Machhi  Singh,
Jagir Singh and Kashmir Singh.  As regards Machhi Singh, it was observed  in
paragraph 42:-
“…….The offence committed was  of  an  exceptionally  depraved  and  heinous
character. The manner of its execution and its design would put  it  at  the
level of extreme atrocity and cruelty.

……..   The  crime  committed  carries  features  which  could   be   utterly
horrendous especially when we know the weapons and the manner of their  use.
The victims could offer no resistance to the  accused  appellants.  The  law
clamours for a sterner sentence; the  crime  being  heinous,  atrocious  and
cruel.

……..The crime was gruesome and cold-blooded revealing the propensity of  the
accused appellants to commit murder.”

      Similarly as regards Jagir Singh it was observed,

“…….The crime committed carries features which could be  utterly  horrendous
especially when we know the weapons and their manner  of  use.  The  victims
could offer no resistance to the accused appellants. The law clamours for  a
sterner sentence; the crime being heinous, atrocious and cruel.

………The helpless state of the victims and the circumstances of the case  lead
us to confirm the death sentence.”


8.    Further, paragraphs 44 and 45 show that  one  of  the  accused  namely
Kashmir Singh had caused the death of a defenceless child of six  years  and
the matter as regards said accused Kashmir  Singh  in  particular  and  with
regard to all the accused in general, was dealt with as under:-
 “44. Insofar as appellant Kashmir Singh s/o Arjan Singh is concerned  death
sentence has been imposed on him by the Sessions Court and confirmed by  the
High Court for the following reasons:
Similarly, Kashmir Singh appellant caused the death of a child Balbir  Singh
aged six years while asleep, a poor defenceless life put off by  a  depraved
mind reflecting grave propensity to commit murder.

45. We are of the  opinion  that  insofar  as  these  three  appellants  are
concerned the rarest of rare cases rule prescribed in Bachan Singh  case  is
clearly attracted and sentence of death is called  for.  We  are  unable  to
persuade ourselves  that  a  sentence  of  imprisonment  for  life  will  be
adequate in the circumstances of the crime. We therefore  fully  uphold  the
view concurrently taken by the  Sessions  Court  and  the  High  Court  that
extreme penalty of death requires to be imposed  on  appellants  (1)  Machhi
Singh (2) Kashmir Singh s/o Arjan Singh  (3)  Jagir  Singh.  We  accordingly
confirm the death sentence imposed on them and dismiss their appeals.”


9.    The assessment and the consideration bestowed by this Court in  Machhi
Singh (supra) shows that the aggravating circumstances namely the manner  in
which the  crime  was  committed,  the  brutality  and  barbaric  manner  of
execution, the status and helplessness of victims  and  the  fact  that  the
crime was gruesome and cold blooded were given due weightage.   These  facts
themselves were found to  be  tilting  the  balance  against  the  concerned
accused.  In the present case a minor girl  of  four  years  was  raped  and
battered to death by the petitioner.  The brutality  and  diabolical  nature
of the crime and the fact that the victim had reposed trust  and  confidence
in  the  petitioner  was  taken  into  account  and  this  Court  found  the
aggravating circumstances completely outweighing  the  other  factors.   The
evidence and circumstances were dealt with in the Judgment under  review  in
great detail and this  Court  had  no  hesitation  in  affirming  the  death
sentence.

10.   In the present Review Petition, Mr.  Anup  Bhambhani,  learned  Senior
Advocate appearing for the petitioner, at the  outset,  raised  a  grievance
that in the light of principles laid down in Bachan Singh and  Machhi  Singh
(supra) mitigating factors ought to have been taken into  account  and  that
proper and effective  hearing  in  that  behalf  was  not  extended  to  the
petitioner.  This Court therefore by Order dated  31.08.2016  permitted  the
petitioner to file material to indicate mitigating  factors  for  conversion
of the death sentence to life imprisonment.  This was in  keeping  with  the
principles laid down  by  this  Court  in  Dagdu  and  Others  v.  State  of
Maharashtra[6] wherein three Judge Bench of this Court had observed:-

“79 …..The Court, on convicting an accused, must unquestionably hear him  on
the question of sentence. But if, for any reason, it omits to do so and  the
accused makes a grievance of it in the higher court, it  would  be  open  to
that Court to remedy the breach by giving a hearing to the  accused  on  the
question of sentence.”

80. …….For a proper and effective implementation of the provision  contained
in Section 235(2), it is not always necessary to remand the  matter  to  the
court which has recorded the conviction……Remand is  an  exception,  not  the
rule, and ought therefore to be avoided as far as possible in the  interests
of expeditious, though fair, disposal of cases.”


11.   The petitioner thereafter filed Crl.M.P. Nos.16369-70 of 2016  placing
on record certain facts and material.  It was submitted :-
“Education and Activities undertaken by the Petitioner    in Jail

The Petitioner submits that he had to discontinue  school  after  class  6th
during  childhood.   Thereafter  he  worked  in   various   jobs   such   as
electrician, construction labourer, nursery worker, security  guard.   Death
row prisoners in Maharashtra are not permitted to work, but  the  Petitioner
as an undertial has worked in the jail nursery.  During  incarceration,  the
Petitioner has undertaken studies,  art  competitions  as  well  as  several
programmes  aimed  at  reforming  himself.   The  Petitioner’s  counsel   is
informed that his drawings are exhibited in jail as well.

The Petitioner has in 2015 successfully completed the Bachelors  Preparatory
Programme offered by the  Indira  Gandhi  National  Open  University.   This
course enables people who have discontinued schooling  before  matriculation
to prepare for bachelors-level studies.

The Petitioner  in  2015  also  successfully  completed  the  Gandhi  Vichar
Pariksha (Examinaiton on Gandhian  Thoughts).   This  examination  seeks  to
rehabilitate prisoners who have committed violent crimes, by  learning  from
the life and teaching of M.K. Gandhi.  The course includes  classes  on  the
teachings of M.K. Gandhi,  reading  his  autobiography,  and  a  descriptive
exam.

The Petitioner is quite proficient in drawing and has also  participated  in
a drawing competition organized by  the  Nagpur  Municipal  Corporation  and
Kalajarn Foundation on 10.01.2016.

It is therefore submitted that the Petitioner is on the path to  reformation
and rehabilitation and therefore the death sentence imposed on him  deserves
to be commuted to imprisonment for life.”

      The application then set out  that  the  Disciplinary  Record  of  the
Petitioner in Jail was without any blemish and that there were  no  criminal
antecedents.

 12.  The matter was thereafter posted for  hearing.   Mr.  Anup  Bhambhani,
learned Senior Advocate principally submitted:-
a.    The judgment of conviction and order of sentence were  passed  by  the
trial court on the same  day  namely  on  23.02.2012  which  was  completely
opposed to the law laid down by this Court  in Allauddin Mian and Others  v.
State of Bihar[7] and against the spirit of Section 235(2) of the CrPC.

b.    As laid down in para 206 of  Bachan  Singh  (supra)  “the  probability
that the accused can be reformed” was an important facet and the burden  was
on the State to prove by evidence that the accused  could  not  possibly  be
reformed.  However, such burden was not  discharged  by  the  State  and  no
evidence was led.  In the absence of such evidence by the  State,  no  death
sentence could be awarded or confirmed.


13.   Para 10 of the decision of this Court in Allauddin Mian  v.  State  of
Bihar (supra)  on which reliance was placed,  is to the following effect:-
10. Even a casual glance at the provisions of the Penal Code will show  that
the punishments have been carefully graded corresponding  with  the  gravity
of offences; in grave wrongs the punishments prescribed are  strict  whereas
for minor offences leniency is shown. Here again there is considerable  room
for  manoeuvre  because  the  choice  of  the  punishment  is  left  to  the
discretion of the judge with only the outer limits stated. There are only  a
few cases where a minimum punishment is prescribed.  The  question  then  is
what procedure does the judge follow for determining the  punishment  to  be
imposed in each case to fit the crime? The  choice  has  to  be  made  after
following the procedure set out in sub-section (2) of  Section  235  of  the
Code. That sub-section reads as under:

If the accused  is  convicted,  the  judge  shall,  unless  he  proceeds  in
accordance with the provisions of Section  360,  hear  the  accused  on  the
question of sentence, and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy  the  rule  of
natural justice. It is a fundamental  requirement  of  fair  play  that  the
accused who was hitherto concentrating on the prosecution  evidence  on  the
question of guilt should,  on  being  found  guilty,  be  asked  if  he  has
anything to say or any evidence to tender on the question of sentence.  This
is all the more necessary since the courts are generally  required  to  make
the choice from a wide range of discretion in the matter of  sentencing.  To
assist the court in determining the  correct  sentence  to  be  imposed  the
legislature introduced sub-section (2) to Section 235.  The  said  provision
therefore satisfies a  dual  purpose;  it  satisfies  the  rule  of  natural
justice by according to the accused an opportunity of  being  heard  on  the
question of sentence and at the same time helps  the  court  to  choose  the
sentence to be awarded. Since the provision is intended to give the  accused
an opportunity to place before the court all the relevant material having  a
bearing on the  question  of  sentence  there  can  be  no  doubt  that  the
provision  is  salutary  and  must  be  strictly  followed.  It  is  clearly
mandatory and should not be treated  as  a  mere  formality.  Mr  Garg  was,
therefore, justified in making a grievance that  the  trial  court  actually
treated it as a mere formality as is evident from the fact that it  recorded
the finding of guilt on 31-3-1987, on the same day before the accused  could
absorb and overcome the shock of conviction they  were  asked  if  they  had
anything to say on the question of sentence and immediately  thereafter  the
decision imposing the death penalty on the two accused was pronounced. In  a
case of life or death as stated earlier, the presiding officer must  show  a
high decree of concern for the statutory right of  the  accused  and  should
not treat it as a mere formality to be crossed before making the  choice  of
sentence. If the choice is  made,  as  in  this  case,  without  giving  the
accused an effective and real opportunity to place his  antecedents,  social
and economic background, mitigating  and  extenuating  circumstances,  etc.,
before the court, the court’s decision on the sentence would be  vulnerable.
We need hardly mention that in many cases  a  sentencing  decision  has  far
more serious consequences on the offender and his  family  members  than  in
the case of a purely administrative decision;  a  fortiori,  therefore,  the
principle of fair play must apply with greater vigour in  the  case  of  the
former  than  the  latter.   An   administrative   decision   having   civil
consequences, if taken without giving a hearing is generally struck down  as
violative of the rule of natural justice.  Likewise  a  sentencing  decision
taken without following the requirements of sub-section (2) of  Section  235
of the Code in letter and spirit would also meet  a  similar  fate  and  may
have to be replaced by an  appropriate  order.  The  sentencing  court  must
approach the question seriously and must  endeavour  to  see  that  all  the
relevant facts and circumstances bearing on the  question  of  sentence  are
brought on record. Only after giving due weight to the  mitigating  as  well
as the aggravating circumstances placed before it,  it  must  pronounce  the
sentence. We  think  as  a  general  rule  the  trial  courts  should  after
recording the conviction adjourn the matter to a future date and  call  upon
both the prosecution as well as the defence to place the  relevant  material
bearing on the question of sentence before it and thereafter  pronounce  the
sentence to be imposed on the offender. In the present case, as pointed  out
earlier, we  are  afraid  that  the  learned  trial  Judge  did  not  attach
sufficient importance to the mandatory requirement  of  sub-section  (2)  of
Section 235 of the Code.”


14.   Sub-section (2) of Section 235 of Cr.P.C. obliges the  Court  to  hear
the accused on the question of sentence and normally  it  is  expected  that
after recording the conviction, the matter be adjourned  to  a  future  date
calling upon both the prosecution as well as the defence to  place  relevant
material  having  bearing  on  the  question  of  sentence.  The  effect  of
recording of the conviction and imposition of death  sentence  on  the  same
day, was also considered by a bench of three learned Judges  of  this  Court
in Malkiat Singh and others v. State  of  Punjab[8].   In  that  case,  this
Court did not deem it expedient to remand the matter  after  six  years  and
converted the sentence of death to imprisonment for life. It was observed:-

“18. On finding that the accused committed  the  charged  offences,  Section
235(2) of the Code empowers the Judge that he shall  pass  sentence  on  him
according to law on  hearing  him.  Hearing  contemplated  is  not  confined
merely to oral hearing but also intended to afford  an  opportunity  to  the
prosecution as well as the accused to  place  before  the  court  facts  and
material relating to various factors on the question  of  sentence,  and  if
interested by either side, to  have  evidence  adduced  to  show  mitigating
circumstances to impose a lesser sentence or aggravating grounds  to  impose
death penalty. Therefore, sufficient time must be given to  the  accused  or
the prosecution on the question of sentence, to show the  grounds  on  which
the prosecution may plead or the accused may show that the maximum  sentence
of death may be the appropriate sentence or the  minimum  sentence  of  life
imprisonment may be awarded, as the  case  may  be.  No  doubt  the  accused
declined to adduce oral evidence. But  it  does  not  prevent  to  show  the
grounds to impose lesser sentence on A-1.  This  Court  in  the  aforestated
Allauddin and Anguswamy[9] cases held that the sentence awarded on the  same
day of finding guilt is not in accordance with the law. That would  normally
have  the  effect  of  remanding  the  case  to  the   Special   Court   for
reconsideration. But in the view of the fact that A-1 was  in  incarceration
for long term of six years from the date of conviction,  in  our  considered
view it needs no remand for further evidence.  It  is  sufficient  that  the
sentence of death awarded to A-1 is  converted  into  rigorous  imprisonment
for life. The  sentences  of  death  is  accordingly  modified  and  A-1  is
sentenced to undergo rigorous imprisonment for life for causing  the  deaths
of all four deceased.”


15.    In a recent Judgment rendered by three learned Judges of  this  Court
in B.A. Umesh v. High Court of Karnataka[10], the facts were  more  or  less
similar, in that no separate date for hearing on sentence  was  given  after
recording conviction.  Para 8 of that decision of this Court is  quoted  for
ready reference:-
“8.  In addition to above, it is  contended  on  behalf  of  the  petitioner
(Review Applicant) that since no separate date for hearing on  sentence  was
given in the present case by the trial  court,  as  such  for  violation  of
Section 235(2) Cr.P.C., the sentence of death cannot be  affirmed.  We  have
considered the argument of Ms. Suri. It is  true  that  the  convict  has  a
right to be heard before sentence. There is no  mandate  in  Section  235(2)
Cr.P.C. to fix separate date for hearing on  sentence.  It  depends  on  the
facts and circumstances as to  whether  a  separate  date  is  required  for
hearing on sentence or parties feel convenient to argue on sentence  on  the
same day. Had any party  pressed  for  separate  date  for  hearing  on  the
sentence, or both of them wanted to be heard on some other  date,  situation
could have been different. In the present case, the parties  were  heard  on
sentence by both the  courts  below,  and  finally  by  this  Court,  as  is
apparent from the Judgment under review. As  such,  merely  for  the  reason
that no separate date is given for  hearing  on  the  sentence,  the  Review
Petition cannot be allowed.”

This Court then relied on the principle laid  down  in  Dagdu  v.  State  of
Maharashtra (supra) which was followed  subsequently  by  another  Bench  of
three learned Judges in  Tarlok  Singh  v.  State  of  Punjab[11].   In  the
circumstances, merely because no separate date  was  given  for  hearing  on
sentence, we cannot find the entire  exercise  to  be  flawed  or  vitiated.
Since we had allowed the  petitioner  to  place  the  relevant  material  on
record in the light of the  principles  laid  down  in  Dagdu  v.  State  of
Maharashtra (supra), we will proceed to consider the material so  placed  on
record and weigh these factors and the aggravating  circumstances  as  found
by the Court in the Judgment under review.

16.   However, before such  consideration  we  must  deal  with  the  second
submission advanced by Mr.  Bhambhani,  learned  Senior  Advocate.   In  his
submission, in terms of paragraph 206 of  the  decision  of  this  Court  in
Bachan Singh (supra) the burden was upon the State in respect of  conditions
(3) and  (4),  which  burden  was  not  discharged  at  all.   Consequently,
according to him, the sentence of death would be required  to  be  converted
to life imprisonment.  Paragraph 206  of  the  decision  of  this  Court  in
Bachan Singh (supra) detailed certain  mitigating  circumstances  and  while
dealing with conditions (3) and (4), this Court observed that  it  would  be
for the State to  prove  by  evidence  that  the  accused  did  not  satisfy
conditions (3) and (4).  However,  subsequent  paragraphs  show  that  those
circumstances would certainly be relevant and great weight  be  attached  to
them but it was the cumulative effect of  the  mitigating  circumstances  on
one hand and the aggravating facts on the other, which would be  weighed  to
come to the final conclusion whether the case satisfied the  requirement  of
being “rarest of rare”.  It is not as if mere failure on part of  the  State
to lead such evidence would clinch the issue in favour of the accused.

17.   Mr. Bhambhani, learned Senior Advocate then relied on the decision  of
this Court in Rajesh Kumar v. State through Government of NCT of  Delhi[12],
particularly paragraphs 73 and 74 thereof which paragraphs are as under:
“73. In the instant case the State has failed to show that the appellant  is
a continuing threat  to  the  society  or  that  he  is  beyond  reform  and
rehabilitation. On the other hand, in para 77 of the impugned  judgment  the
High Court observed as follows:
“We have no evidence that the appellant is incapable of being  rehabilitated
in  society.  We  also  have  no  evidence  that  he  is  capable  of  being
rehabilitated   in   society.   This   circumstance   remains   a    neutral
circumstance.”

74. It is clear from the aforesaid finding of the High Court that  there  is
no evidence to show that the accused  is  incapable  of  being  reformed  or
rehabilitated in the society and the High Court has considered the  same  as
a neutral circumstance. In our view the High Court  was  clearly  in  error.
The very fact that the accused can be rehabilitated in the  society  and  is
capable of being reformed, since the State has not  given  any  evidence  to
the contrary, is certainly a mitigating  circumstance  and  which  the  High
Court has failed to take into consideration. The High Court has also  failed
to take into consideration that the appellant is not a continuing threat  to
the society in the absence of any evidence to the  contrary.  Therefore,  in
para 78 of the impugned judgment, the High Court, with respect, has taken  a
very narrow and a myopic view of  the  mitigating  circumstances  about  the
appellant. The High Court has only considered that the appellant is a  first
time offender and he  has  a  family  to  look  after.  We  are,  therefore,
constrained  to  observe  that  the  High   Court’s   view   of   mitigating
circumstances has been very truncated and narrow insofar  as  the  appellant
is concerned.”

The discussion shows that this Court found that mitigating circumstances  in
favour of the appellant were not properly considered  and  in  the  ultimate
analysis the case did not satisfy being  “rarest  of  rare”  and  therefore,
this Court substituted the sentence of imprisonment  for  life  to  that  of
death sentence.  The discussion in paragraphs 73 and 74  does  not  indicate
that in the absence of any evidence led by  the  State  in  connection  with
conditions (3) and (4) as stated in paragraph 206 of Bachan  Singh  (supra),
the entire exercise gets vitiated and the matter must always be answered  in
favour of the accused.  It is undoubtedly  a  relevant  consideration  which
will be weighed by the Court together with other  circumstances  on  record.
We, therefore, do not find any merit in the second submission.

18.   In Ramnaresh and  Others  v.  State  of  Chhattisgarh[13]  this  Court
considered the import of  governing principles regarding death sentence  and
summed up that it is the cumulative  effect  of  both  the  aggravating  and
mitigating circumstances that need to be taken into account.  Paragraphs  76
to 81 of the decision are as under:-
“76. The law enunciated by this Court in its recent  Judgments,  as  already
noticed, adds and elaborates the  principles  that  were  stated  in  Bachan
Singh and thereafter, in Machhi Singh. 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) Cr.P.C.

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.

78. Stated broadly, these are the accepted indicators for  the  exercise  of
judicial discretion but it is always preferred not to  fetter  the  judicial
discretion by attempting to make the excessive enumeration, in  one  way  or
another.  In  other  words,  these  are   the   considerations   which   may
collectively or otherwise weigh in the mind of the court,  while  exercising
its jurisdiction. It is difficult to state it as  an  absolute  rule.  Every
case has to be decided on its own merits. The judicial  pronouncements,  can
only state the precepts that may govern the exercise of judicial  discretion
to a limited extent. Justice may be done on the facts of  each  case.  These
are the factors which  the  court  may  consider  in  its  endeavour  to  do
complete justice between the parties.

79. The court then would draw a balance sheet of aggravating and  mitigating
circumstances. Both aspects have to be  given  their  respective  weightage.
The court has to strike a balance between the  two  and  see  towards  which
side the  scale/balance  of  justice  tilts.  The  principle  of  proportion
between the crime and the punishment is  the  principle  of  “just  deserts”
that  serves  as  the  foundation  of  every  criminal  sentence   that   is
justifiable. In  other  words,  the  “doctrine  of  proportionality”  has  a
valuable application to the sentencing  policy  under  the  Indian  criminal
jurisprudence. Thus, the court will not only have to examine  what  is  just
but also as to what the accused deserves keeping in view the impact  on  the
society at large.

80. Every punishment imposed is bound to have its effect  not  only  on  the
accused alone, but also on the society as a whole. Thus, the  courts  should
consider retributive and deterrent aspect of punishment while  imposing  the
extreme punishment of death.

81. Wherever, the  offence  which  is  committed,  manner  in  which  it  is
committed, its attendant circumstances and the  motive  and  status  of  the
victim, undoubtedly bring the case within the  ambit  of  “rarest  of  rare”
cases and the court finds that the imposition of life imprisonment would  be
inflicting of inadequate punishment, the  court  may  award  death  penalty.
Wherever, the case falls in any of the exceptions to the  “rarest  of  rare”
cases, the court may exercise its judicial discretion  while  imposing  life
imprisonment in place of death sentence.”


19.   It is thus well settled, “the  Court  would  consider  the  cumulative
effect  of  both  the  aspects  (namely  aggravating  factors  as  well   as
mitigating circumstances) and 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 completely ignoring other classes  under  other  heads
and it is the primary duty of the Court to balance the two.”   Further,  “it
is always preferred not to fetter the judicial discretion by  attempting  to
make excessive enumeration, in one way or another;  and  that  both  aspects
namely aggravating and mitigating  circumstances  have  to  be  given  their
respective weightage and that the Court has to strike  the  balance  between
the two and see towards which side  the  scale/balance  of  justice  tilts.”
With these principles in mind we now consider the present  review  petition.


20.   The material placed on record shows  that  after  the  Judgment  under
review,  the  petitioner  has  completed  Bachelors  Preparatory   Programme
offered by the Indira  Gandhi  National  Open  University  enabling  him  to
prepare for Bachelor level study and that he has also completed  the  Gandhi
Vichar Pariksha  and  had  participated  in  drawing  competition  organized
sometime in January 2016.  It is  asserted  that  the  jail  record  of  the
petitioner is without any blemish.   The matter is not contested as  regards
Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of  the  decision  in
Bachan Singh (supra) but what is now being projected  is  that  there  is  a
possibility of the accused being reformed and rehabilitated.   Though  these
attempts on part of the petitioner are after the Judgment under  review,  we
have considered the material in that behalf to see  if  those  circumstances
warrant a different view.   We  have  given  anxious  consideration  to  the
material on record but find that the aggravating  circumstances  namely  the
extreme depravity and the barbaric manner in which the crime  was  committed
and the fact that the victim was a  helpless  girl  of  four  years  clearly
outweigh the mitigating circumstances now brought on record.   Having  taken
an overall view of the matter, in our considered view, no case is  made  out
to take a different view in the  matter.  We,  therefore,  affirm  the  view
taken  in  the  Judgment  under  review  and  dismiss  the  present   Review
Petitions.


                                                               ..………………………J.
                                                   (Dipak Misra)



                                                   ...………..…..………...J.
                                                    (Rohinton Fali Nariman)



                                                   …………..……..……..J.
                                                    (Uday Umesh Lalit)

New Delhi,
May 03, 2017


-----------------------
[1]

      [2] (2014) 9 SCC 737
[3]

      [4] (2015) 1 SCC 253
[5]

      [6] (1980) 2 SCC 684
[7]

      [8] 33 L.Ed. 2d 346 = 408 US 238 (1972)
[9]

      [10](1983) 3 SCC 470
[11]

      [12] (1977) 3 SCC 68
[13]

      [14](1989) 3 SCC 5
[15]

      [16] (1991) 4 SCC 341
[17]

      [18] (1989) 3 SCC 33
[19]

      [20] (2016) 9 SCALE 600
[21]

      [22] (1977) 3 SCC 218
[23]

      [24] (2011) 13 SCC 706
[25]

      [26] (2012) 4 SCC 257


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