Corpus delicti -:
In Rama Nand and Ors. v. State of Himachal Pradesh (1981) 1 SCC 511, this Court summed up the legal position on the subject as:
“....…….In other words, we would take it that the corpus delicti, i.e., the dead-body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused caused the death" of the person alleged to have been killed.
28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead-body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead". This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead-body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead-body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead-body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti, i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned….” (emphasis supplied)
To the same effect is the decision in Ram Chandra & Ram Bharosey v. State of Uttar Pradesh AIR 1957 SC 381, where this Court said:
“It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.”
In Lakshmi and Ors. v. State of Uttar Pradesh (2002) 7 SCC 198 the legal position was reiterated thus :
“16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 I.P.C. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in absence of identification of the body and cause the death.”
Supreme Court of India
Rishi Pal vs State Of Uttarkhand on 8 January, 2013
In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder.
Last seen theory :-
In Mohibur Rahman and Anr. v. State of Assam (2002) 6 SCC 715, this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. Similarly in Arjun Marik and Ors. V. State of Bihar 1994 Supp (2) SCC 372, this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishra and Another (1996) 11 SCC 264, this Court declared that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.
In Bharat v. State of M.P (2003) 3 SCC 106; two circumstances on the basis whereof the appellant had been convicted were :-
(i) the appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. This Court held :
“........Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant.....”
Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir (2002) 8 SCC 45 where this Court held :
“The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases....”
In Jaswant Gir v. State of Punjab (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons.
Where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the ‘last seen theory’ would be impermissible and would create a major dent in the case of the prosecution. In support of this contention, reliance is placed upon the judgment of this Court in the case of S.K. Yusuf v. State of West Bengal [(2011) 11 SCC 754].
Application of the ‘last seen theory’ requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. This Court in para 21 of Yusuf’s case (supra) while referring to the case of Mohd. Azad @ Samin v. State of West Bengal [(2008) 15 SCC 449] and State through Central Bureau of Investigation Vs. Mahender Singh Dahiya [(2011) 3 SCC 109], held as under:-
“The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide Mohd. Azad v. State of W.B and State v. Mahender Singh Dahiya)”
Supreme Court of India
Shyamal Ghosh vs State Of West Bengal on 11 July, 2012
The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the Court to examine that where the last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred.
What to prove in a case based on circumstantial evidence ?
Sharad Birdhi Chand Sarda vs State Of Maharashtra 1984 AIR 1622
following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that Supreme Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles,, constitute the panchsheel of the proof of a case based on circumstantial evidence.
Constitutionality of death penalty was upheld for the first time in Jagmohan v. State of Uttar Pradesh .
Supreme Court of India
Jagmohan Singh vs The State Of U. P on 3 October, 1972
As regards the rest of the offences, even those cases where the maximum punishment is the death penalty, a wide discretion to punish is given to the Judge. The reasons are explained by Ratanlal on the page referred to above.
"Circumstances which are properly and expressly recognized by the law as aggravations calling for in creased severity of punishment are principally such as consist in the manner in which the offence is perpetrated; whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated, or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counteracting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case. These considerations naturally include a number of particulars, as of time, place, per- sons and things, varying according to the nature of the case. Circumstances which are to be considered in alleviation of punishment are : (1) the minority of the offender; (2) the old age of the offender; (3) the condition of the offender e.g., wife, apprentice; (4) the order of a superior military officer; (5) provocation; (6) when offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other; (7) the state of health and the sex of the delinquent. Bentham mentions the following circumstances in mitigation of punishment which should be inflicted : (1) absence of bad intention; (2) provocation; (3) self preservation; (4) preservation of some near friends; (5) transgression of the limit of self-defence; (6) submission to the menaces; (7) submission to authority; (8) drunkenness; (9) childhood."
Indeed these are not the only aggravating or mitigating circumstances which should be considered when sentencing an offender.
In Bachan Singh v. State of Punjab, 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.”
In the said case, the Court, after referring to the authority in Furman v. Georgia , noted the suggestion given by the learned counsel about the aggravating and the mitigating circumstances. The aggravating circumstances suggested by the counsel read as follows:
“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:
“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.”
Thereafter, the Court referred to the suggestions pertaining to mitigating circumstances:
“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 the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” The Court then observed:
“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.”
In the said case, the Court has also held thus:
“It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines 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.”
In Machhi Singh v. state of Punjab , a three-Judge Bench has explained the concept of ‘rarest of the rare cases’ by observing thus: “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 for 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.”
Thereafter, the Court has adverted to the aspects of the feeling of the community and its desire for self-preservation and opined that the community may well withdraw the protection by sanctioning the death penalty. What has been ruled in this regard is worth reproducing: “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, stress was laid on certain aspects, namely, the manner of commission of the murder, the motive for commission of the murder, anti-social or socially abhorrent nature of the crime, magnitude of the crime and personality of the victim of murder.
After so enumerating, the propositions that emerged from Bachan Singh (supra) were culled out which are as follows:
“The following propositions emerge from Bachan Singh case:
“(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.”
The three-Judge Bench further opined that to apply the said guidelines, the following questions are required to be 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?” In the said case, the Court upheld the extreme penalty of death in respect of three accused persons.
The Court in Haresh Mohandas Rajput v. State of Maharashtra, while dealing with the situation where the death sentence is warranted, referred to the guidelines laid down in Bachan Singh (supra) and the principles culled out in Machhi Singh (supra) and opined as follows:
“19. In Machhi Singh v. State of Punjab this Court expanded the “rarest of rare” formulation beyond the aggravating factors listed in Bachan Singh to cases where the “collective conscience” of the community is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between the aggravating and the mitigating circumstances.” After so stating, the Court ruled thus:
“20. The rarest of the rare case” comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the- moment provocation and indulges himself in a deliberately planned crime and [pic]meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organised criminal activities, death sentence should be awarded.
Supreme Court, while dealing with the murder of a young girl of about 18 years in Dhananjoy Chatterjee V. State of West Bengal , took note of the fact that the accused was a married man of 27 years of age, the principles stated in Bachan Singh’s case and further took note of the rise of violent crimes against women in recent years and, thereafter, on consideration of the aggravating factors and mitigating circumstances, opined that: “In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”
After so stating, the Court took note of the fact that the deceased was a school-going girl and it was the sacred duty of the appellant, being a security guard, to ensure the safety of the inhabitants of the flats in the apartment but to gratify his lust, he had raped and murdered the girl in retaliation which made the crime more heinous. Appreciating the manner in which the barbaric crime was committed on a helpless and defenceless school-going girl of 18 years, the Court came to hold that the case fell in the category of rarest of the rare cases and, accordingly, affirmed the capital punishment imposed by the High Court.
Cases where the death penalty has been confirmed:
Jumman Khan v. State of Uttar Pradesh, (1991) 1 SCC 752 was a case in which the death penalty was confirmed by this Court for the rape and murder of a 6 year old child on the basis of the brutality of the crime and on circumstantial evidence. This Court quoted the order dismissing the special leave petition of the accused against his conviction, in which it was said:
“Although the conviction of the petitioner under Section 302 of the Indian Penal Code, 1860 rests on circumstantial evidence, the circumstantial evidence against the petitioner leads to no other inference except that of his guilt and excludes every hypothesis of his innocence……...
Failure to impose a death sentence in such grave cases where it is a crime against the society - particularly in cases of murders committed with extreme brutality - will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment. The only punishment which the appellant deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust, is nothing but death as a measure of social necessity and also as a means of deterring other potential offenders. The sentence of death is confirmed.”
In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 this Court confirmed the death sentence of the 27 year old married accused taking into consideration the rising crime graph, particularly violent crime against women; society’s cry for justice against criminals; and the fact that the rape and murder of an 18 year old was premeditated and committed in a brutal manner by a security guard against a young defenceless person to satisfy his lust and in retaliation for a complaint made by her against him. This is what this Court had to say:
“In recent years, the rising crime rate — particularly violent crime against women has made the criminal sentencing by the courts a subject of concern……….
“In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
“The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years……..”
In Laxman Naik v. State of Orissa, (1994) 3 SCC 381 this Court was of the opinion that since the accused was the guardian of the helpless victim, his 7 year old niece, and since the crime was pre-planned, cold blooded, brutal and diabolical, the appropriate punishment would be a sentence of death. This Court held:
“The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence in the appellant must have believed in his bona fides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfil his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.”
Kamta Tiwari v. State of Madhya Pradesh, (1996) 6 SCC 250 was a case where the accused was close to the family of the victim, a 7 year old child. In fact, she would address him as ‘Uncle Tiwari’. He was, therefore, in the nature of a person of trust, while the victim was in a hapless condition and was brutally raped and murdered in a premeditated manner. This Court held:
“Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances — but found aggravating circumstances aplenty. …… When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a “rarest of rare” cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes.”
Nirmal Singh v. State of Haryana, (1999) 3 SCC 670 One of the accused Dharampal, had been convicted for rape and had filed an appeal. Pending the appeal, he applied for and was granted bail. While on bail, he killed five members of the family who had given evidence against him in the case for which he was convicted of rape, thereby carrying out the threat he had earlier given. The crime was pre- planned and executed in a brutal manner. Confirming the death penalty awarded to him, this Court held:
“…… Coming to the question of sentence, however, we find that the High Court has not considered the individual role played by each of the appellants. So far as accused Dharampal is concerned, it is he who had given the threat on the previous occasion that if anybody gives evidence in the rape case, the whole family will be wiped off. It is he who after being convicted in the said rape case preferred an appeal and obtained a bail from the High Court and has totally misutilised that privilege of bail by killing 5 persons who were all the members of the family of P whose deposition was responsible for his conviction in the rape case. It is he who has assaulted each of the 5 deceased persons by means of a kulhari and the nature of the injuries as found by the doctor would indicate that the act is an act of a depraved mind and is most brutal and heinous in nature. It is he who had consecrated the plan to put into action his earlier threat but he has taken the help of his brother Nirmal.”
Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1 was a case in which the death penalty was confirmed since this Court accepted the view of the High Court that the accused was a “living danger” and incapable of rehabilitation. The crime was that of an attempted rape of a 30 year old pregnant woman followed by her murder and the murder of her 8 year old child. This Court held that the crime was brutal and committed in a gruesome and depraved manner. The fact that the accused was a young man of 22 years was held not to be a relevant factor, given the nature of the crime. The judicial conscience of this Court was shocked by the facts of the case. It was held:
“….. [W]e are unable to record our concurrence with the submissions of Mr Muralidhar that there are some mitigating circumstances and there is likelihood of the accused being reformed or rehabilitated. Incidentally, the High Court has described the accused as “a living danger” and we cannot agree more therewith in view of the gruesome act as noticed above.
“The facts establish the depravity and criminality of the accused in no uncertain terms. No regard being had for the precious life of the young child also. The compassionate ground of the accused being 22 years of age cannot in the facts of the matter be termed to be at all relevant…… “In the present case, the savage nature of the crime has shocked our judicial conscience. The murder was cold-blooded and brutal without any provocation. It certainly makes it a rarest of the rare cases in which there are no extenuating or mitigating circumstances.
36. In Molai & Anr. v. State of M.P., (1999) 9 SCC 581 death penalty awarded to both the accused for the rape and murder of a 16 year old was confirmed. Molai was a guard in a Central Jail and Santosh was undergoing a sentence in that jail. The victim was the daughter of the Assistant Jailor. Taking into account the manner of commission of the offence and the fact that they took advantage of the victim being alone in a house, the death penalty was confirmed by this Court although the case was one of circumstantial evidence. This Court held:
“…… It cannot be overlooked that N, a 16-year-old girl, was preparing for her Class 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her undergarment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharp- edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned counsel for the accused (appellants) could not point any mitigating circumstance from the record of the case to justify the reduction of sentence of either of the accused.”
State of Uttar Pradesh v. Satish, (2005) 3 SCC 114 is a remarkable case for the reason that the accused was acquitted by the High Court and yet the death penalty awarded by the Trial Court was upheld by this Court for the rape and murder of a school going child. The case was also one of circumstantial evidence. The special reasons for awarding the death penalty were the diabolic and inhuman nature of the crime. It was held:
“Considering the view expressed by this Court in Bachan Singh case and Machhi Singh case we have no hesitation in holding that the case at hand falls in the rarest of rare category and death sentence awarded by the trial court was appropriate. The acquittal of the respondent- accused is clearly unsustainable and is set aside. In the ultimate result, the judgment of the High Court is set aside and that of the trial court is restored. The appeals are allowed.”
Shivu & Anr. v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713 was a case in which the special reasons for confirming the death penalty given to both the accused who were aged about 20 and 22 years old respectively were the heinous rape and murder of an 18 year old. It was noted that the accused had twice earlier attempted to commit rape but were not successful. Though no case was lodged against them, they were admonished by the village elders and the Panchayat and asked to mend their ways. It was held:
“Considering the view expressed by this Court in Bachan Singh case and Machhi Singh case we have no hesitation in holding that the case at hand falls in rarest of rare category and death sentence awarded by the trial court and confirmed by the High Court was appropriate.”
In Bantu v. State of Uttar Pradesh, (2008) 11 SCC 113 the death sentence was confirmed for the special reason of the depraved and heinous act of rape and murder of a 5 year old child, which included the insertion of a wooden stick in her vagina to the extent of 33 cms. to masquerade the crime as an accident. This Court held:
“The case at hand falls in the rarest of the rare category. The depraved acts of the accused call for only one sentence, that is, death sentence.”
In Shivaji v. State of Maharashtra, (2008) 15 SCC 269 this Court categorically rejected the view that death sentence cannot be awarded in a case where the evidence is circumstantial. The death sentence was upheld also because of the depraved acts of the accused in raping and murdering a 9 year old child. This Court held:
“The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play..........
“The case at hand falls in the rarest of the rare category. The circumstances highlighted above establish the depraved acts of the accused, and they call for only one sentence, that is, death sentence.”
In Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667 of the six accused, three were awarded life sentence by the High Court while for the remaining three, the death sentence was confirmed. The accused were found to have committed five murders and had raped a lady (who survived) and a child of 15 years of age (who died). This Court awarded the death penalty to all the six accused. This Court found the crime to be cruel and diabolic; the collective conscience of the community was shocked; the victims were of a tender age and defenceless; the victims had no animosity towards the accused and the attack against them was unprovoked. Considering these factors, this Court awarded the death penalty to all the accused and held:
“The murders were not only cruel, brutal but were diabolic. The High Court has held that those who were guilty of rape and murder deserve death sentence, while those who were convicted for murder only were to be awarded life sentence. The High Court noted that the whole incident is extremely revolting, it shocks the collective conscience of the community and the aggravating circumstances have outweighed the mitigating circumstances in the case of accused persons 1, 2 and 4; but held that in the case of others it was to be altered to life sentence.
“The High Court itself noticed that five members of a family were brutally murdered, they were not known to the accused and there was no animosity towards them. Four of the witnesses were of tender age, they were defenceless and the attack was without any provocation. Some of them were so young that they could not resist any attack by the accused. A minor girl of about fifteen years was dragged to the open field, gang-raped and done to death.
“Above being the position, the appeals filed by the accused persons deserve dismissal, which we direct and the State's appeals deserve to be allowed. A-2, A-3 and A-5 are also awarded death sentence. In essence all the six accused persons deserve death sentence.”
B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85 was a case of the rape and murder of a lady, a mother of a 7 year old child. In the High Court, there was a difference of opinion on the sentence to be awarded – one of the learned judges confirmed the death penalty while the other learned judge was of the view that imprisonment for life should be awarded. The matter was referred to a third learned judge who agreed with the award of a death penalty. This Court confirmed the death penalty since the crime was unprovoked and committed in a depraved and merciless manner; the accused was alleged to have been earlier and subsequently involved in criminal activity; he was a menace to society and incapable of rehabilitation; the accused did not feel any remorse for what he had done. It was held:
“On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of the rarest of rare cases which merits the death penalty, as awarded by the trial court and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh case or in Machhi Singh case are present in the facts of the instant case. The appellant even made up a story as to his presence in the house on seeing PW 2 Suresh, who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not the first time that he had committed crimes in other premises also, before he was finally caught by the public two days after the present incident, while trying to escape from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her.
“As has been indicated by the courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to the society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba."
Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317 was a case which a 42 year old man had raped and killed a 7 year old child. This Court looked at the factors for awarding death sentence both in the negative as well as in the positive sense. It was held that the number of persons killed by the accused is not a decisive factor; nor is the mere brutality of the crime decisive. However if the brutality of the crime shocks the collective conscience of the community, one has to lean towards the death penalty. Additionally, it is to be seen if the accused is a menace to society and can be reformed or not. Applying these broad parameters, this Court held that the accused was a mature man of 43 years; that he held a position of trust in relation to the victim; that the crime was pre-planned; and that the crime was, pre-planned, unprovoked and gruesome against a defenceless child. It was held:
“……. The appellant is a matured man aged about 43 years. He held a position of trust and misused the same in a calculated and pre-planned manner. He sent the girl aged about 7 years to buy betel and few minutes thereafter in order to execute his diabolical and grotesque desire proceeded towards the shop where she was sent. The girl was aged about 7 years of thin built and 4 ft of height and such a child was incapable of arousing lust in normal situation. The appellant had won the trust of the child and she did not understand the desire of the appellant which would be evident from the fact that while she was being taken away by the appellant no protest was made and the innocent child was made prey of the appellant's lust.
“The post-mortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate is to inflict the death sentence which is natural and logical. We are of the opinion that the appellant is a menace to the society and shall continue to be so and he cannot be reformed.”
In Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 the accused, a 31 year old, had raped and murdered a 3 year old child. This Court considered the brutality of the crime and the conduct of the accused prior to, during and after the crime. Prior to the incident, the accused had worked under a false name and had gained the trust and confidence of the victim. The accused had, after committing a brutal crime, left the injured victim in the open field without any clothes, thereby exhibiting his unfortunate and abusive conduct. It was held:
“This Court has to examine the conduct of the accused prior to, at the time as well as after the commission of the crime. Prior thereto, the accused had been serving with PW 5 and PW 6 under a false name and took advantage of his familiarity with the family of the deceased. He committed the crime in the most brutal manner and, thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is unbelievable and unsustainable.
“Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of “trust-belief” and “confidence”, in which capacity he took the child from the house of PW 2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.” Broad analysis:
The principal reasons for confirming the death penalty in the above cases include (1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan, Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Satish, Bantu, Ankush Maruti Shinde, B.A. Umesh, Mohd. Mannan and Rajendra Pralhadrao Wasnik);
(2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community (Dhananjoy Chatterjee, Jai Kumar, Ankush Maruti Shinde and Mohd. Mannan);
(3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar, B.A. Umesh and Mohd. Mannan);
(4) the victims were defenceless (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Ankush Maruti Shinde, Mohd. Mannan and Rajendra Pralhadrao Wasnik);
(5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Ankush Maruti Shinde, B.A. Umesh and Mohd. Mannan) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu, B.A. Umesh and Rajendra Pralhadrao Wasnik).
However, what is more significant is that there are cases where the factors taken into consideration for commuting the death penalty were given a go-bye in cases where the death penalty was confirmed. The young age of the accused was not taken into consideration or held irrelevant in Dhananjoy Chatterjee aged about 27 years, Jai Kumar aged about 22 years and Shivu & another aged about 20 and 22 years while it was given importance in Amit v. State of Maharashtra, Rahul, Santosh Kumar Singh, Rameshbhai Chandubhai Rathod (2) and Amit v. State of Uttar Pradesh. The possibility of reformation or rehabilitation was ruled out, without any expert evidence, in Jai Kumar, B.A. Umesh and Mohd. Mannan in much the same manner, without any expert evidence, as the benefit thereof was given in Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh. Acquittal or life sentence awarded by the High Court was considered not good enough reason to convert the death sentence in Satish, Ankush Maruti Shinde and B.A. Umesh but it was good enough in State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar and Santosh Kumar Singh. Even though the crime was not premeditated, the death penalty was confirmed in Molai notwithstanding the view expressed in Akhtar, Raju and Amrit Singh. Circumstantial evidence was held not to be a ‘mitigating’ factor in Jumman Khan, Kamta Tewari, Molai and Shivaji but it was so held in Bishnu Prasad Sinha.
Bachan Singh is more than clear that the crime is important (cruel, diabolic, brutal, depraved and gruesome) but the criminal is also important and this, unfortunately has been overlooked in several cases in the past (as mentioned in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498) and even in some of the cases referred to above. It is this individualized sentencing that has made this Court wary, in the recent past, of imposing death penalty and instead substituting it for fixed term sentences exceeding 14 years (the term of 14 years or 20 years being erroneously equated with life imprisonment) or awarding consecutive sentences. Some of these cases, which are not necessarily cases of rape and murder, are mentioned below.
Minimum fixed term sentences:
There have been several cases where life sentence has been awarded by this Court with a minimum fixed term of incarceration. Many of them have been discussed in Swamy Shraddananda and so it is not necessary to refer to them individually.
Swamy Shraddananda refers to Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230 which in turn refers to five different cases. Its relevant to refer to them at this stage.
In Subhash Chander v. Krishan Lal, (2001) 4 SCC 458 it was held that the convict shall remain in prison “for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions.”
In Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 and Ram Anup Singh v. State of Bihar, (2002) 6 SCC 686 the convict was directed to serve out at least 20 years of imprisonment.
In Mohd. Munna v. Union of India, (2005) 7 SCC 417 the convict had undergone 21 years of incarceration. This Court held that he was not entitled to release as a matter of course but was required to serve out his sentence till the remainder of his life subject to remissions by the appropriate authority or State Government.
Swamy Shraddananda also refers to Jayawant Dattatraya Suryarao v. State of Maharashtra, (2001) 10 SCC 109 in which it was directed that the convict “will not be entitled to any commutation or premature release under Section 433-A of the Criminal Procedure Code, Prisoners Act, Jail Manual or any other statute and the Rules made for the purpose of commutation and remissions.”
Similarly, in Nazir Khan v. State of Delhi, (2003) 8 SCC 461 while sentencing the convicts to imprisonment for 20 years it was held that they would not be entitled to any remission from this period.
The death sentence to the convict in Swamy Shraddananda was converted to imprisonment for life with a further direction that he shall not be released till the rest of his life.
Sebastian v. State of Kerala, (2010) 1 SCC 58 was a case of a 24 year old extremely violent pedophile accused of raping a two-year old child and then murdering her. While commuting the death sentence, this Court held that he should remain in jail for the rest of his life in terms of Swamy Shraddananda. It was observed:
“The evidence that the appellant was a paedophile with extremely violent propensities also stands proved on record in that he had been convicted and sentenced for an offence punishable under Section 354 in the year 1998 and later for the offences punishable under Sections 363, 376, 379, 302 and 201 IPC for the rape and murder of a young child and had been awarded a sentence of imprisonment for life under Section 302, and several other terms of imprisonment with respect to the other sections, though, an appeal in this connection was pending as on date. It is also extremely relevant that the appellant had, in addition, been tried for the murders of several other children but had been acquitted on 28-7-2005 with the benefit of doubt. The present incident happened three days later.
“We accordingly dismiss the appeals but modify the sentence of death to one for the rest of his life in terms of the judgment in Shraddananda case.”
The special sentencing theory evolved in Swamy Shraddananda (supra) has got the seal of approval of the Constitution Bench of this Court in Union of India vs. Sriharan alias Murugan and others , laying down as follows:
“105. We, therefore, reiterate that the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.
In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 this Court converted the death sentence of the accused to imprisonment for life though the crime of rape and murder was heinous, since the accused persons were young at the time of commission of the offence (between 21 and 31 years of age); the possibility of the death of the victim being accidental; and the accused not being a social menace with possibility of reforming themselves. It was held, while modifying the sentence that the accused serve a term of imprisonment of 21 years:
“While we cumulatively examine the various principles and apply them to the facts of the present case, it appears to us that the age of the accused, possibility of the death of the deceased occurring accidently and the possibility of the accused reforming themselves, they cannot be termed as “social menace”. It is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime for satisfaction of their lust, but it cannot be held with certainty that this case falls in the “rarest of rare” cases. On appreciation of the evidence on record and keeping the facts and circumstances of the case in mind, we are unable to hold that any other sentence but death would be inadequate.
“Accordingly, while commuting the sentence of death to that of life imprisonment (21 years), we partially allow their appeals only with regard to the quantum of sentence.”
In Neel Kumar v. State of Haryana, (2012) 5 SCC 766 this Court modified the death penalty awarded to the accused for the rape and murder of his 4 year old daughter to one of 30 years imprisonment without remissions. It was held:
“A three-Judge Bench of this Court in Swamy Shraddananda (2) v. State of Karnataka, considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life.
“Similarly, in Ramraj v. State of Chhattisgarh [(2010) 1 SCC 573] this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years’ imprisonment.
“Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for premature release.”
In Sandeep v. State of U.P., (2012) 6 SCC 107 the death sentence awarded to the convict for the murder of his pregnant friend and pouring acid on her head was converted to sentence of life for a minimum period of 30 years without any remission before his case could be considered for premature release.
In Brajendrasingh v. State of Madhya Pradesh, (2012) 4 SCC 289 the accused had murdered his wife and three children since he suspected his wife’s fidelity. The death penalty awarded to him was converted to imprisonment for life by this Court with a minimum imprisonment of 21 years. This is what was said by this Court:
“Considering the above aspects, we are of the considered view that it is not a case which falls in the category of the “rarest of rare” cases where imposition of death sentence is imperative. It is also not a case where imposing any other sentence would not serve the ends of justice or would be entirely inadequate.
“Once we draw the balance sheet of aggravating and mitigating circumstances and examine them in the light of the facts and circumstances of the present case, we have no hesitation in coming to the conclusion that this is not a case where this Court ought to impose the extreme penalty of death upon the accused. Therefore, while partially accepting the appeals only with regard to quantum of sentence, we commute the death sentence awarded to the accused to one of life imprisonment (21 years).”
In State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537 this Court converted the death penalty awarded to the accused for the rape and murder of an 18 year old into one of life imprisonment with a further direction that he would not be granted premature release under the guidelines framed for that purpose, that is, the Jail Manual or even under Section 433-A of the Cr. P.C. It was said:
“In view of the above, we reach the inescapable conclusion that the submissions advanced by the learned counsel for the State are unfounded. The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the “rarest of rare cases”, warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under the Jail Manual, etc. or even under Section 433-A CrPC.”
In Gurvail Singh v. State of Punjab, (2013) 2 SCC 713 the death sentence was converted to imprisonment for life with the requirement that the convict spends a minimum of thirty years in jail without remission. It was held:
“We are of the view, so far as this case is concerned, that the extreme sentence of capital punishment is not warranted. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW 1, whose son, daughter-in-law and two grandchildren were murdered, we are of the view that the appellants deserve no sympathy. Considering the totality of facts and circumstances of this case we hold that imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, we hold that they must serve a minimum of thirty years in jail without remission. The sentence awarded by the trial court and confirmed by the High Court is modified as above. Under such circumstances, we modify the sentence from death to life imprisonment. Applying the principle laid down by this Court in Sandeep we are of the view that the minimum sentence of thirty years would be an adequate punishment, so far as the facts of this case are concerned.” Consecutive sentence cases:
. Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148 is perhaps among the earliest cases where consecutive sentences were awarded. This was not a case of rape and murder but one of causing a dowry death of his pregnant wife. It was held that it was not the “rarest of rare” cases “because dowry death has ceased to belong to that species of killing.” The death sentence was, therefore, not upheld. Since the accused had attempted to cause disappearance of the evidence by severing the head and cutting the body into nine pieces, this Court directed that he should undergo the sentence for that crime after serving out his life sentence. It was held:
“We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as the “rarest of the rare” type. This is so because dowry death has ceased to belong to that species of killing. The increasing number of dowry deaths would bear this. To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of a death penalty. We, therefore, resist ourselves from upholding the death sentence, much though we would have desired annihilation of a despicable character like the appellant before us. We, therefore, commute the sentence of death to one of RI for life imprisonment.
“But then, it is a fit case, according to us, where, for the offence under Sections 201/34, the sentence awarded, which is RI for seven years being the maximum for a case of the present type, should be sustained, in view of what had been done to cause disappearance of the evidence relating to the commission of murder — the atrocious way in which the head was severed and the body was cut in nine pieces. These cry for maximum sentence. Not only this, the sentence has to run consecutively, and not concurrently, to show our strong disapproval of the loathsome, revolting and dreaded device adopted to cause disappearance of the dead body. To these sentences, we do not, however, desire to add those awarded for offences under Sections 316 and 498-A/34, as killing of the child in the womb was not separately intended, and Section 498-A offence ceases to be of significance and importance in view of the murder of Vijaya.
“The result is that the appeal stands allowed to the extent that the sentence of death is converted to one of imprisonment for life. But then, the sentence of seven years' RI for the offence under Sections 201/34 IPC would start running after the life imprisonment has run its course as per law.” Since imprisonment for life means that the convict will remain in jail till the end of his normal life, what this decision mandates is that if the convict is to be earlier released by the competent authority for any reason, in accordance with procedure established by law, then the second sentence will commence immediately thereafter.
Ronny v. State of Maharashtra, (1998) 3 SCC 625 is also among the earliest cases in the recent past where consecutive sentences were awarded. The three accused, aged about 35 years (two of them) and 25/27 years had committed three murders and a gang rape. This Court converted the death sentence of all three to imprisonment for life since it was not possible to identify whose case would fall in the category of “rarest of rare” cases. However, after awarding a sentence of life imprisonment, this Court directed that they would all undergo punishment for the offence punishable under Section 376(2)(g) of the IPC consecutively, after serving the sentences for other offences. It was held:
“Considering the cumulative effect of all the factors, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for the whole thing was done in a pre- planned way; having regard to the nature of offences and circumstances in which they were committed, it is not possible for the Court to predict that the appellant would not commit criminal act of violence or would not be a threat to the society. A-1 is 35 years' old, A-2 is 35 years' old and A-3 is 25 (sic 27) years' old. The appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. From the facts and circumstances, it is not possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a case like this it is not possible to say as to whose case falls within the “rarest of the rare” cases, it would serve the ends of justice if the capital punishment is commuted into life imprisonment. Accordingly, we modify the sentence awarded by the courts below under Section 302 read with Section 34 from death to life imprisonment. The sentences for the offences for which the appellants are convicted, except under Section 376(2)(g) IPC, shall run concurrently; they shall serve sentence under Section 376(2)(g) IPC consecutively, after serving sentence for the other offences.”
In Sandesh v. State of Maharashtra, (2013) 2 SCC 479 this Court converted the death penalty awarded to the accused to imprisonment for life, inter alia, for the rape of a pregnant lady, attempted murder and the murder of her mother in law to imprisonment for life with a further direction that all the sentences were to run consecutively.
In Sanaullah Khan v. State of Bihar, MANU/SC/0165/2013 the death sentence awarded to the accused for the murder of three persons was converted by this Court to imprisonment for life for each of the three murders and further the sentences were directed to run consecutively.
These decisions clearly suggest that this Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying (though not necessarily mentioning) the “unquestionably foreclosed” formula laid down in Bachan Singh.
Off and on, the issue has been the interpretation of “life sentence” – does it mean imprisonment for only 14 years or 20 years or does it mean for the life of the convict. This doubt has been laid to rest in several cases, more recently in Sangeet where it has been unequivocally laid down that a sentence of imprisonment for life means imprisonment for the rest of the normal life of the convict. The convict is not entitled to any remission in a case of sentence of life imprisonment, as is commonly believed. However, if the convict is sought to be released before the expiry of his life, it can only be by following the procedure laid down in Section 432 of the Code of Criminal Procedure or by the Governor exercising power under Article 161 of the Constitution or by the President exercising power under Article 72 of the Constitution. There is no other method or procedure.
CASES IN WHICH DEATH PENALTY COMMUTED
Cases where the death penalty has been converted to imprisonment for life:
State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 was a case of the rape and murder of a pregnant housewife. This Court took the view that though the crime was dastardly and the victim was a young pregnant housewife, it would not be appropriate to award the death penalty since the High Court had not upheld the conviction and also due to the passage of time. This is what was observed:
“The above discussion takes us to the final conclusion that the High Court has seriously erred in upsetting the conviction entered by the Sessions Court as against A-2 and A-3. The erroneous approach has resulted in miscarriage of justice by allowing the two perpetrators of a dastardly crime committed against a helpless young pregnant housewife who was sleeping in her own apartment with her little baby sleeping by her side and during the absence of her husband. We strongly feel that the error committed by the High Court must be undone by restoring the conviction passed against A-2 and A-3, though we are not inclined, at this distance of time, to restore the sentence of death passed by the trial court on those two accused.”
Nirmal Singh v. State of Haryana, (1999) 3 SCC 670 was a case in which Dharampal had raped P and was convicted for the offence. Pending an appeal the convict was granted bail. While on bail, Dharampal along with Nirmal Singh murdered five members of P’s family. Death penalty was awarded to Dharampal and Nirmal Singh by the Trial Court and confirmed by the High Court. This Court converted the death sentence in the case of Nirmal Singh to imprisonment for life since he had no criminal antecedents; there was no possibility of his committing criminal acts of violence; he would not continue being a threat to society; and he was not the main perpetrator of the crime. It was held:
“There is nothing on record to suggest that Nirmal was having any past criminal antecedents or that there is a possibility that the accused would commit criminal acts of violence and would constitute a continuing threat to the society. The only aggravating circumstance is that he had come with his brother and had given 3 blows on deceased Krishna only after Dharampal chased Krishna and gave kulhari blows hitting on the neck while Krishna was running and on sustaining that blow, she fell down and then Dharampal gave two to three blows to Krishna and only thereafter Nirmal gave burchi blows on the said Krishna. It is no doubt true that the presence of Nirmal at the scene of the occurrence with a burchi in his hand had emboldened Dharampal to take the drastic action of causing murder of 5 persons of Tale's family as a result of which Tale's family was totally wiped off. But because of the fact that Nirmal has not assaulted any other person and assaulted Krishna only after Dharampal had given her 3 or 4 blows, the case of Nirmal cannot be said to be the rarest of rare case attracting the extreme penalty of death. While, therefore, we uphold his conviction under Sections 302/34, we commute his sentence of death into imprisonment for life.”
Kumudi Lal v. State of Uttar Pradesh, (1999) 4 SCC 108 was a case of rape and murder of a 14 year old. This Court was of the view that the applicability of the rarest of rare principle did not arise in this case apparently because the crime had no ‘exceptional’ feature. This Court noted as follows:
“The circumstances indicate that probably she (the victim) was not unwilling initially to allow the appellant to have some liberty with her. The appellant not being able to resist his urge for sex went ahead in spite of her unwillingness for a sexual intercourse who offered some resistance and started raising shouts at that stage. In order to prevent her from raising shouts the appellant tied the salwar around her neck which resulted in strangulation and her death. We, therefore, do not consider this to be a fit case in which the extreme penalty of death deserves to be imposed upon the appellant.”
Akhtar v. State of Uttar Pradesh, (1999) 6 SCC 60 was a case of rape and murder of a young girl. The sentence of death awarded to the accused was converted to one of life imprisonment since he took advantage of finding the victim alone in a lonely place and her murder was not premeditated. It was observed:
“But in the case in hand on examining the evidence of the three witnesses it appears to us that the accused-appellant has committed the murder of the deceased girl not intentionally and with any premeditation. On the other hand the accused-appellant found a young girl alone in a lonely place, picked her up for committing rape; while committing rape and in the process by way of gagging the girl has died. The medical evidence also indicates that the death is on account of asphyxia. In the circumstances we are of the considered opinion that the case in hand cannot be held to be one of the rarest of rare cases justifying the punishment of death.”
In State of Maharashtra v. Suresh, (2000) 1 SCC 471 death penalty was not awarded to the accused since he had been acquitted by the High Court, even though the case was said to be “perilously near” to falling within the category of rarest of rare cases. The test of whether the lesser option was “unquestionably foreclosed” was adopted by this Court, which held:
“We, therefore, set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with the Sessions Court's view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases” envisaged by the Constitution Bench in Bachan Singh v. State of Punjab. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life.”
In Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28 the accused, a 30 year old man, had raped and killed a one and a half year old child. Despite concluding that the crime was serious and heinous and that the accused had a dirty and perverted mind, this Court converted the death penalty to one of imprisonment for life since he was not such a dangerous person who would endanger the community and because it was not a case where there was no alternative but to impose the death penalty. It was also held that a humanist approach should be taken in the matter of awarding punishment. It was held:
“Coming to the case in hand, the crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible. It reveals a dirty and perverted mind of a human being who has no control over his carnal desires. Then the question is: Whether the case can be classified as of a “rarest of rare” category justifying the severest punishment of death. Treating the case on the touchstone of the guidelines laid down in Bachan Singh, Machhi Singh [(1983) 3 SCC 470] and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can be appropriately called one of the “rarest of rare cases” deserving death penalty. We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community. We are also not satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender. It is our considered view that the case is one in which a humanist approach should be taken in the matter of awarding punishment.”
Raju v. State of Haryana, (2001) 9 SCC 50 was a case in which this Court took into account three factors for converting the death sentence of the accused to imprisonment for life for the rape and murder of an eleven year old child. Firstly, the murder was committed without any premeditation (however, there is no mention about the rape being not premeditated); secondly, the absence of any criminal record of the accused; and thirdly, there being nothing to show that the accused could be a grave danger to society. This is what was said:
“[T]he evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick-blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty.”
In Bantu v. State of Madhya Pradesh, (2001) 9 SCC 615 this Court converted the death sentence awarded to the accused to imprisonment for life. The accused was a 22 year old man who had raped and murdered a 6 year old child. It was acknowledged that the rape and murder was heinous, but this Court took into account that the accused had no previous criminal record and that he would not be a grave danger to society at large. On this basis, the death penalty was converted to life imprisonment. This is what was said:
“In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence.”
In State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 this Court converted the death sentence to imprisonment for life since the accused was acquitted by the High Court and imprisonment for life was not unquestionably foreclosed. This is what this Court held:
“Regarding sentence we would have concurred with the Sessions Court's view that the extreme penalty of death can be chosen for such a crime. However, as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases”, as envisaged by the Constitution Bench in Bachan Singh v. State of Punjab. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life.”
In Amit v. State of Maharashtra, (2003) 8 SCC 93 the death penalty awarded to the accused for the rape and murder of an eleven year old child was converted to imprisonment for life for the reason that he was a young man of 20 years when the incident occurred; he had no prior record of any heinous crime; and there was no evidence that he would be a danger to society. This Court held:
“The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases. We hope that the appellant will learn a lesson and have an opportunity to ponder over what he did during the period he undergoes the life sentence.”
Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3 SCC 127 was a case in which the death penalty awarded to the accused who had raped a minor child, was converted to life imprisonment considering the fact that he was 36 years old and there was no evidence of the accused being involved in any other case and there was no material to show that he would be a menace to society. It was held:
“The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case.”
In State of Maharashtra v. Mansingh, (2005) 3 SCC 131 the accused was acquitted by the High Court of the offence of rape and murder of the victim. In a brief order, this Court noted this fact as well as the fact that this was a case of circumstantial evidence and, therefore, the death sentence was converted to imprisonment for life to meet the ends of justice. It was observed:
“Now the question which arises is as to whether the present case would come within the ambit of rarest of the rare case. In the facts and circumstances of the case, we are of the view that the trial court was not justified in imposing extreme penalty of death against the respondent and ends of justice would be met in case the sentence of life imprisonment is awarded against the respondent.”
Rahul v. State of Maharashtra, (2005) 10 SCC 322 was a case of the rape and murder of a four and a half year old child by the accused. The death sentence awarded to him was converted by this Court to one of life imprisonment since the accused was a young man of 24 years when the incident occurred; apparently his behavior in custody was not uncomplimentary; he had no previous criminal record; and would not be a menace to society. It was held:
“We have considered all the relevant aspects of the case. It is true that the appellant committed a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27-11-1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal record, and nothing was brought to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him.”
In Amrit Singh v. State of Punjab, (2006) 12 SCC 79 a 6 or 7 year old child was raped and murdered by a 31 year old. This Court took the view that though the rape may be brutal and the offence heinous, “it could have been a momentary lapse” on the part of the accused and was not premeditated. The victim died “as a consequence of and not because of any overt act” by the accused. Consequently, the case did not fall in the category of rarest of rare cases. It was held:
“The opinion of the learned trial Judge as also the High Court that the appellant being aged about 31 years and not suffering from any disease, was in a dominating position and might have got her mouth gagged cannot be held to be irrelevant. Some marks of violence not only on the neck but also on her mouth were found. Submission of Mr Agarwal, however, that the appellant might not have an intention to kill the deceased, thus, may have some force. The death occurred not as a result of strangulation but because of excessive bleeding. The deceased had bleed half a litre of blood. Dr. Reshamchand Singh, PW 1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of the appellant.
“Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of the appellant, seeing a lonely girl at a secluded place. He had no premeditation for commission of the offence. The offence may look heinous, but under no circumstances, can it be said to be a rarest of rare cases.”
Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467 was a case concerning the rape and murder of a child aged about 7 or 8 years by two accused persons. The death penalty awarded to them was converted to life imprisonment since the conviction was based on circumstantial evidence and appellant No.1 had expressed remorse in his statement under Section 313 of the Code of Criminal Procedure and admitted his guilt. It appears that the second accused either did not admit his guilt or express any remorse. This Court held:
“The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant No.1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”
Santosh Kumar Singh v. State, (2010) 9 SCC 747 was a case in which the sentence of death was converted to life imprisonment by this Court since the accused had been acquitted by the Trial Court and the High Court had reversed the acquittal on circumstantial evidence. The accused was young man of 24 years when the incident occurred; he had got married in the meanwhile and had a daughter; his father had died a year after his conviction; his family faced a dismal future; and there was nothing to suggest that he was not capable of reform. It was held:
“Furthermore, we see that the mitigating circumstances need to be taken into account, more particularly that the High Court has reversed a judgment of acquittal based on circumstantial evidence. The appellant was a young man of 24 at the time of the incident and, after acquittal, had got married and was the father of a girl child. Undoubtedly also, the appellant would have had time for reflection over the events of the last fifteen years, and to ponder over the predicament that he now faces, the reality that his father died a year after his conviction and the prospect of a dismal future for his young family. On the contrary, there is nothing to suggest that he would not be capable of reform.
“There are extremely aggravating circumstances as well. In particular we notice the tendency of parents to be overindulgent to their progeny often resulting in the most horrendous of situations. These situations are exacerbated when an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile and heady cocktail of the two. The reality that such a class does exist is for all to see and is evidenced by regular and alarming incidents such as the present one.
“Nevertheless, to our mind, the balance sheet tilts marginally in favour of the appellant, and the ends of justice would be met if the sentence awarded to him is commuted from death to life imprisonment under Section 302 of the Penal Code; the other part of the sentence being retained as it is.”
Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 was an unusual case in as much as the two learned Judges hearing the case had differed on the sentence to be awarded. Accordingly the matter was referred to a larger Bench which noted that the accused was about 28 years of age and had raped and killed a child studying in a school in Class IV. The accused was awarded a sentence of imprisonment for life subject to remissions and commutation at the instance of the Government for good and sufficient reasons. It was held as follows:
“Both the Hon'ble Judges have relied extensively on Dhananjoy Chatterjee case [(1994) 2 SCC 220]. In this case the death sentence had been awarded by the trial court on similar facts and confirmed by the Calcutta High Court and the appeal too dismissed by this Court leading to the execution of the accused. Ganguly, J. has, however, drawn a distinction on the facts of that case and the present one and held that as the appellant was a young man, only 27 years of age, it was obligatory on the trial court to have given a finding as to a possible rehabilitation and reformation and the possibility that he could still become a useful member of society in case he was given a chance to do so.
“We are, therefore, of the opinion that in the light of the findings recorded by Ganguly, J. it would not be proper to maintain the death sentence on the appellant….”
Incidentally, Dhananjoy Chatterjee was also 27 years of age when he committed the offence of rape and murder, while Rameshbhai Chandubhai Rathod was 28 years of age when he committed the offence.
In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 the Trial Court had awarded life sentence to the accused for the rape and murder of a 10 year old child but the High Court enhanced it to a sentence of death. Taking into account the view of the Trial Court, this Court converted the death sentence to one of life imprisonment. It was observed:
“So far as the sentence part is concerned, in view of the law referred to hereinabove, we are of the considered opinion that the case does not fall within the “rarest of rare cases”. The High Court was not justified in enhancing the punishment. Thus, in the facts and circumstances of the case, we set aside the punishment of death sentence awarded by the High Court and restore the sentence of life imprisonment awarded by the trial court. With this modification, the appeals stand disposed of.”
In Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 the death penalty awarded to the accused for the rape and murder of a 3 year old child was converted to imprisonment for life since the accused was a young man of 28 years when he committed the offence; he had no prior history of any heinous offence; there was nothing to suggest that he would repeat such a crime in future; and given a chance, he may reform. This Court sentenced him to life imprisonment subject to remissions or commutation. This Court held:
“In the present case also, we find that when the appellant committed the offence he was a young person aged about 28 years only. There is no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There is nothing on evidence to suggest that he is likely to repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years.
Hence, following the judgment of the three-Judge Bench in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, we convert the death sentence awarded to the appellant to imprisonment for life and direct that the life sentence of the appellant will extend to his full life subject to any remission or commutation at the instance of the Government for good and sufficient reasons.” Broad analysis:
A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include (1) the young age of the accused (Amit v. State of Maharashtra aged 20 years, Rahul aged 24 years, Santosh Kumar Singh aged 24 years, Rameshbhai Chandubhai Rathod (2) aged 28 years and Amit v. State of Uttar Pradesh aged 28 years);
(2) the possibility of reforming and rehabilitating the accused (Santosh Kumar Singh and Amit v. State of Uttar Pradesh the accused, incidentally, were young when they committed the crime);
(3) the accused had no prior criminal record (Nirmal Singh, Raju, Bantu, Amit v. State of Maharashtra, Surendra Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh);
(4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh). A few other reasons need to be mentioned such as the accused having been acquitted by one the Courts (State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar, Mansingh and Santosh Kumar Singh); the crime was not premeditated (Kumudi Lal, Akhtar, Raju and Amrit Singh); the case was one of circumstantial evidence (Mansingh and Bishnu Prasad Sinha). In one case, commutation was ordered since there was apparently no ‘exceptional’ feature warranting a death penalty (Kumudi Lal) and in another case because the Trial Court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput).
Sangeeta & Ors v. State of Haryana (2013) 2 SCC 452 noticed that the circumstances of the criminal referred to in Bachan Singh appeared to have taken a bit of back seat in the sentencing process and held despite Bachan Singh, the ‘particular crime’ continues to play a more important role than the ‘crime and criminal’. In conclusion, we have said, inter alia, as follows:
“1. The application of aggravating and mitigating circumstances needs a fresh look. This Court has not endorsed that approach in Bachan Singh. In any event, there is little or no uniformity in the application of this approach.
2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.
3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.
4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.”
In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence:
“Aggravating circumstances – (Crime test)
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 Code of Criminal Procedure.
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: (Criminal test)
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 behavior 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 behavior 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 pre-ordained 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 eye-witness though prosecution has brought home the guilt of the accused.”
In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498, this Court held the nature, motive, and impact of crime, culpability, quality of evidence, socio economic circumstances, impossibility of rehabilitation and some of the factors, the Court may take into consideration while dealing with such cases.
In Sangeeta’s case this Bench has held that there is no question of balancing the above mentioned circumstances to determine the question whether the case falls into the rarest of rare cases category because the consideration for both are distinct and unrelated. In other words the “balancing test” is not the correct test in deciding whether capital punishment be awarded or not.
Aggravating Circumstances as pointed out above, of course, are not exhaustive so also the Mitigating Circumstances. In my considered view that the tests that we have to apply, while awarding death sentence, are “crime test”, “criminal test” and the R-R Test and not “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is 100% and “criminal test” 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the “criminal test” may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.
In Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, this Court opined that criminal background and adverse history of the accused is a relevant factor.
Supreme again returned back to Rarest of Rare :
Supreme Court of India
Mohinder Singh vs State Of Punjab on 28 January, 2013
From conspectus consideration of the above decisions apart from the four principles laid down in Bachan Singh (supra) and also the requirement of a balance sheet of aggravating and mitigating circumstances, the following principles are required to be borne in mind:
i) A conclusion as to the ‘rarest of rare’ aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal.
ii) The expression ‘special reasons’ obviously means (‘exceptional reasons’) founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal.
iii) The decision in Ravji @ Ram Chandra Vs. State of Rajasthan – (1996) 2 SCC 175 which was subsequently followed in six other cases, namely, Shivaji @ Dadya Shankar Alhat Vs. State of Maharashtra - (2008) 15 SCC 269, Mohan Anna Chavan Vs. State of Maharashtra - (2008) 7 SCC 561, Bantu Vs. State of Uttar Pradesh - (2008) 11 SCC 113, Surja Ram Vs. State of Rajasthan -(1996) 6 SCC 271, Dayanidhi Bisoi Vs. State of Orissa - (2003) 9 SCC 310 and State of Uttar Pradesh Vs. Sattan @ Satyendra & Ors. - (2009) 4 SCC 736 wherein it was held that it is only characteristics relating to crime, to the exclusion of the ones relating to criminal, which are relevant to sentencing in criminal trial, was rendered per incuriam qua Bachan Singh (supra) in the decision reported in Santosh Kumar Satishbhushan Bariyar (supra) at 529.
iv) Public opinion is difficult to fit in the ‘rarest of rare’ matrix. People’s perception of crime is neither an objective circumstance relating to crime nor to the criminal. Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing according to the mandate of Bachan Singh (supra). (2009) 6 SCC 498 at p.535.
v) Capital sentencing is one such field where the safeguards continuously take strength from the Constitution. (2009) 6 SCC 498 at 539.
vi) The Apex Court as the final reviewing authority has a far more serious and intensive duty to discharge and the Court not only has to ensure that award of death penalty does not become a perfunctory exercise of discretion under Section 302 after an ostensible consideration of ‘rarest of rare’ doctrine, but also that the decision-making process survives the special rigours of procedural justice applicable in this regard. (2010) 14 SCC 641 at 692.
vii) The ‘rarest of rare’ case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of “the rarest of the rare case”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. 2011 (12) SCC 56 at p.63 para 20.
viii) Life sentence is the rule and the death penalty is the exception. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable.
(ix) The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the Court to the extent that the only and inevitable conclusion should be awarding of death penalty.(AIR 2011 SC 2689)
(x) When the case falls under the category of ‘rarest of rare’ case penalty of death is clearly called for and any leniency shown in the matter of sentence would not only be misplaced but will certainly give rise to and foster a feeling of private revenge among the people leading to destabilization of the society.(AIR 1983 SC 585)
(xi) Death penalty has been held to be constitutionally valid. The test is what case would attract death penalty if not the case of the appellant.
Regardless of the suggestive middle path this Court has, when the occasion demanded, confirmed death sentences in many horrenduous, barberic and superlative crimes especially which involve kidnapping, rape and cold blooded murder of tender age children.
In Mukesh and another vs. State (NCT of Delhi) and others 8, faced with an instance of gang rape and brutal murder, this Court found that aggravating circumstances like diabolic nature of the crime, brazenness and coldness with which such acts were committed and the inhuman extent to which the accused could go to satisfy their lust, would outweigh mitigating circumstances.
In Vasanta Sampat Dupare vs. State of Maharashtra a little child was raped and brutally murdered. The death penalty was confirmed by this Court. Thereafter, a review petition was heard in open court and the death penalty was reconfirmed regardless of the convict having completed a bachelors preparatory programme, having kept an unblemished jail record and acquiring some other reformative qualifications during the course of trial. This Court was of the view that the extreme depravity and barbaric manner in which the crime was committed and the fact that the victim was a helpless child of 4 years clearly outweighed the mitigating circumstances in that case.
In Khushwinder Singh vs. State of Punjab , this Court affirmed the death sentence of the accused who had killed six innocent persons including two minors by kidnapping, drugging them with sleeping pills and then pushing them into a canal.
In Manoharan Vs. Inspector of Police, a three-Judge Bench (by majority) affirmed the death sentence of the accused who along with his co-accused was found guilty of gangraping a 10 years’ old minor girl and committing her brutal murder along with her 7 years’ old brother by throwing them into a canal and causing their death by drowning.
Equally, there are several other instances including the recent instance in Rajindra Pralhadrao Wasnik v. State of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 where this Court commuted death sentence even in the case of rape and murder of tender age children like 3-4 year olds after taking notice of the peculiar facts and circumstances of that case as well as the factor that the convictions were founded upon circumstancial evidence and though DNA Test was held but its report was withheld and not produced by the prosecution for the reasons best known to it.
In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra this Court clearly laid down the law in paragraph 167 of the Report to the effect that while there is no prohibition in law in awarding a death sentence in a case of circumstantial evidence, but that evidence must lead to an exceptional case. It was said:
“167. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda (2), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be (2009) 6 SCC 498 imposed on the basis of the circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case.” (Emphasis supplied by us).
. In Sebastian v. State of Kerala20 there is a brief reference to death penalty in a case of circumstantial evidence in paragraphs 17 and 18 of the Report. While commuting the death sentence to one of life imprisonment, this Court relied upon Swamy Shraddananda (2) and held:
“17. The learned counsel for the appellant has finally urged that the death sentence in the circumstances was not called for. He has pointed out that the case rested on circumstantial evidence and the death penalty should not ordinarily be awarded in such a case. It has further been emphasised that the appellant was a young man of 24 years of age at the time of the incident.
18. We are of the opinion that in the background of these facts, the death penalty ought to be converted to imprisonment for life but in terms laid down by this Court in Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767] as his continuance as a member of an ordered society is uncalled for.”
In Ramesh v. State of Rajasthan21 this Court referred to Bariyar and in paragraph 68 and paragraph 69 of the Report, it was held:
“68. ……… The Court, thus, has in a guided manner referred to the quality of evidence and has sounded a note of caution that in a case where the reliance is on circumstantial evidence, that factor has to be taken into consideration while awarding the death sentence. This is also a case purely on the circumstantial evidence. We should not be understood to say that in all cases of circumstantial evidence, the death sentence cannot be given.
In fact in Shivaji v. State of Maharashtra Supreme Court had awarded death sentence though the evidence was of circumstantial nature. All that we say is that the case being dependent upon circumstantial evidence is one of the relevant considerations. We have only noted it as one of the circumstances in formulating the sentencing policy……...” (Emphasis supplied by us).
In Sushil Sharma v. State (NCT of Delhi) Supreme Court considered the peculiar facts of the case and did not award the death penalty since the only evidence was circumstantial and there were some factors that were to the advantage of the appellant. It was held in paragraph 101 of the Report as follows:
“101. We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver's evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases…….”
Finally, in Kalu Khan v. State of Rajasthan Supreme Court referred to Swamy Shraddananda and in paragraph 31 of the Report it was held, on the facts of the case, that the balance of circumstances introduces an uncertainty in the “culpability calculus” and therefore there was an alternative to the imposition of the death penalty. Accordingly, the sentence was commuted to imprisonment for life.
Ravishankar @ Baba Vishwakarma vs The State Of Madhya Pradesh
It would be totally imprudent to lay down an absolute principle of law that no death sentence can be awarded in a case where conviction is based on circumstantial evidence. Such a standard would be ripe for abuse by seasoned criminals who always make sure to destroy direct evidence. Further in many cases of rape and murder of children, the victims owing to their tender age can put up no resistence. In such cases it is extremely likely that there would be no ocular evidence. It cannot, therefore, be said that in every such case nothwthstanding that the prosecution has proved the case beyond reasonable doubt, the Court must not award capital punishment for the mere reason that the offender has not been seen committing the crime by an eye-witness. Such a reasoning, if applied uniformally and mechanically will have devastating effects on the society which is a dominant stakeholder in the administration of our criminal justice system.
Further, another nascent evolution in the theory of death sentencing can be distilled. This Court has increasingly become cognizant of `residual doubt’ in many recent cases which effectively create a higher standard of proof over and above the `beyond reasonable doubt’ standard used at the stage of conviction, as a safeguard against routine capital sentencing, keeping in mind the irreversibility of death.
In Rameshbhai Chandubhai Rathod vs. State of Gujarat,this Court noted that reliance on merely ‘plausible’ evidences to prove a circumstantial chain and award death penalty would be “in defiance of any reasoning which brings a case within the category of the “rarest of rare cases”.” Further, various discrepancies in other important links in the circumstantial chain as well as lack of any cogent reason by the High Court for not accepting the retraction of the confession statement of the accused was noted. Acting upon such various gaps in the prosecution evidence as well as in light of other mitigating circumstances, like the possibility that there were others involved in the crime, this Court refused to confirm the sentence of death despite upholding conviction.
Such imposition of a higher standard of proof for purposes of death sentencing over and above ‘beyond reasonable doubt’ necessary for criminal conviction is similar to the “residual doubt” metric adopted by this Court in Ashok Debbarma vs. State of Tripura wherein it was noted that:
“in our criminal justice system, for recording guilt of the accused, it is not necessary that the prosecution should prove the case with absolute or mathematical certainty, but only beyond reasonable doubt. Criminal Courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind, some "residual doubt", even though the Courts are convinced of the accused persons' guilt beyond reasonable doubt.”
Ashok Debbarma (supra) drew a distinction between a ‘residual doubt’, which is any remaining or lingering doubt about the defendant’s guilt which might remain at the sentencing stage despite satisfaction of the ‘beyond a reasonable doubt’ standard during conviction, and reasonable doubts which as defined in Krishan v. State are “actual and substantive, and not merely imaginary, trivial or merely possible”. These ‘residual doubts’ although not relevant for conviction, would tilt towards mitigating circumstance to be taken note of whilst considering whether the case falls under the ‘rarest of rare’ category.
This theory is also recognised in other jurisdictions like the United States, where some state courts like the Supreme Court of Tennessey in State vs. McKinney have explained that residual doubt of guilt is a valid non-statutory mitigating circumstance during the sentencing stage and have allowed for new evidence during sentencing proceedings related to defendant’s character, background history, physical condition etc.
Recently Supreme court commuted a death sentence to imprisonment for life citing the above mentioned cases and using the theory of residual doubts :
Supreme Court of India (3 judges bench)
Ravishankar @ Baba Vishwakarma vs The State Of Madhya Pradesh on 3 October, 2019
‘Residual doubt’ as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost-benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free.
As noted by the United States Supreme Court in Herrera v. Collins, “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” However, death being irrevocable, there lies a greater degree of responsibility on the Court for an indepth scruitiny of the entire material on record. Still further, qualitatively, the penalty imposed by awarding death is much different than in incarceration, both for the convict and for the state. Hence, a corresponding distinction in requisite standards of proof by taking note of ‘residual doubt’ during sentencing would not be unwarranted.
PROBABILITY OF REFORM : In Sandesh v. State of Maharashtra Supreme Court once again acknowledged the principle that it is for the prosecution to lead evidence to show that there is no possibility that the convict cannot be reformed.
Similarly, in Mohinder Singh v. State of Punjab it was held in paragraph 23 of the case as follows:
“……As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.” (Emphasis supplied by us).
In Birju v. State of Madhya Pradesh this Court explained the necessity of considering the probability of reform and rehabilitation of the convict by referring to the provisions of the Probation of Offenders Act, 1958 where a convict is placed under probation in a case where there is a possibility of reform. It was held in paragraph 20 of the case:
“20. In the instant case, the High Court took the view that there was no probability that the accused would not commit criminal acts of violence and would constitute a continuing threat to the society and there would be no probability that the accused could be reformed or rehabilitated……. Courts used to apply reformative theory in certain minor offences and while convicting persons, the courts sometimes release the accused on probation in terms of Section 360 CrPC and Sections 3 and 4 of the Probation of Offenders Act, 1958. Sections 13 and 14 of the Act provide for appointment of Probation Officers and the nature of duties to be performed. Courts also, while exercising power under Section 4, call for a report from the Probation Officer. In our view, while (2013) 2 SCC 479 (2013) 3 SCC 294 (2014) 3 SCC 421 awarding sentence, in appropriate cases, while hearing the accused under Section 235(2) CrPC, courts can also call for a report from the Probation Officer……….. Courts can then examine whether the accused is likely to indulge in commission of any crime or there is any probability of the accused being reformed and rehabilitated.” (Emphasis supplied by us).
. In Anil v. State of Maharashtra this Court implemented the reform and rehabilitation theory. In fact, in paragraph 33 of the Report a direction was issued that while dealing with offences like Section 302 of the IPC, the criminal courts may call for a report to determine whether the convict could be reformed or rehabilitated. This Court noted the duty of the criminal courts to ascertain whether the convict can be reformed and rehabilitated and it is the obligation of the State to furnish materials for and against the possibility of reform and rehabilitation. It was held as follows:
In Bachan Singh this Court has categorically stated, “the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society”, is a relevant circumstance, that must be given great weight in the determination of sentence. This was further expressed in Santosh Kumar Satishbhushan Bariyar. Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be (2014) 4 SCC 69 reformed or rehabilitated, which depends upon the facts and circumstances of each case.” (Emphasis supplied by us).
In Mahesh Dhanaji Shinde v. State of Maharashtra30 this Court considered the conduct of the convicts and on the facts before it, it was concluded that they were capable of living a changed life if they are rehabilitated in society. In any event, the State had not contended that the convicts were beyond reformation and could not lead a changed life if they are rehabilitated in society.
In Sushil Sharma this Court acknowledged that among various factors, one of the factors required to be taken into consideration for awarding or not awarding capital punishment is the probability of reform and rehabilitation of the convict. This acknowledgement was made in paragraph 103 of the Report, in which it was said:
“103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.” (Emphasis supplied by us).
At this stage, we must hark back to Bachan Singh and differentiate between possibility, probability and impossibility of reform and rehabilitation. Bachan Singh requires us to consider the probability of reform and rehabilitation and not its possibility or its impossibility.
Finally, in a recent decision of this Court, in Chhannu Lal Verma v. State of Chhattisgarh the necessity of deciding whether there is any probability of reformation and rehabilitation of the convict was emphasised in cases where there is a possibility of imposition of the death penalty. It was held in paragraph 15 of the Report as follows:
“15. ……….. No evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced. Bachan Singh (supra) unambiguously sets out that death penalty shall be awarded only in the rarest of rare cases where life imprisonment shall be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into consideration while imposing death penalty………”
FAKE ENCOUNTER CASES :
In Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr, a division bench of the Supreme Court , went to the extent of stating that death penalty must be awarded to police men found guilty of committing murders in the guise of encounters.
It was said:
"that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of the rare cases. Fake 'encounters' are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
We warn policemen that they will not be excused for committing murder in the name of 'encounter' on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremberg trials the Nazi war criminals took the plea that 'orders are orders', nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake 'encounter', it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty, sentenced to death. The 'encounter' philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of 'encounter' and get away with it should know the gallows await them."
The Delhi High Court has held that fake encounters have no place in a legal system governed by the rule of law. In 2018, Delhi High court, in Jaspal Singh Gosain v. CBI, upheld the conviction of seven policemen of UP Police for killing a young man in a 'fake' encounter in 2009. The court while observing that the 'fake encounter' presented a grim scenario, said that,
"This was a tragic case of the killing of a 20 year old by the Uttarakhand police in a fake encounter. A fake encounter is a form of extra judicial killing which has no place in a legal system governed by the rule of law. It is a manifestation of the impunity with which armed forces, including the police, are prone to act in utter disregard of the rule of law. It also is symbolic of the cynicism with which the police themselves view the efficacy of the criminal justice system. The police, in this perception, are not just the accusers, but the prosecutor, the judge and the executioner".
In PUCL v. State of Maharastra, the Supreme Court laid down 16 guidelines/procedures 'to be followed in the matters of investigating police encounters in the case of death as the standard procedure for thorough, effective and independent investigation' issued by the NHRC. A Magisterial inquiry must be invariably held under section 176 of the Criminal Procedure Code (CrPC), in all cases of death which took place in the course of police firing and a report thereof must be sent to the Judicial Magistrate having jurisdiction under section 190 of the CrPC. And also the information of the incident without any delay must be sent to NHRC or the SHRC, as the case may be. If at the end of the investigation, if there are any materials/evidence on record to show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action against such officer must be strictly initiated and he should be placed under suspension. The court also said that, the guidelines will also be applicable to grievous injury cases in police encounter, as far as possible.
HONOUR KILLING :
Lata Singh v. State of U.P. and another wherein it has been observed that:-
“The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when We have to be united to face the challenges before the nation unitedly. Hence, inter- caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter- caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes.”
And again:-
“We sometimes hear of “honour” killings of such persons who undergo inter- caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.”
In Maya Kaur Baldevsingh Sardar and another v. State of Maharashtra Supreme Court was constrained to observe thus:-
“26. We also notice that while judges tend to be extremely harsh in dealing with murders committed on account of religious factors they tend to become more conservative and almost apologetic in the case of murders arising out of caste on the premise (as in this very case) that society should be given time so that the necessary change comes about in the normal course. Has this hands-off approach led to the creation of the casteless utopia or even a perceptible movement in that direction? The answer is an emphatic ‘No’ as would be clear from mushrooming caste-based organisations controlled and manipulated by self-appointed commissars who have arrogated to themselves the right to be the sole arbiters and defenders of their castes with the licence to kill and maim to enforce their diktats and bring in line those who dare to deviate. Resultantly the idyllic situation that we perceive is as distant as ever. In this background is it appropriate that we throw up our hands in despair waiting ad infinitum or optimistically a millennium or two for the day when good sense would prevail by a normal evolutionary process or is it our duty to help out by a push and a prod through the criminal justice system? We feel that there can be only one answer to this question.”
In Arumugam Servai v. State of Tamil Nadu], the Court reiterated the principle stated in Lata Singh(supra) and proceeded to state that:- “12. We have in recent years heard of “Khap Panchayats” (known as “Katta Panchayats” in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case3, there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.”
In Bhagwan Dass v. State (NCT of Delhi ) the Court after referring to Lata Singh’s case (supra) was in anguish to observe:- “….In our opinion honour killings, for whatever reason, come within the category of the rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilised behaviour. All persons who are planning to perpetrate “honour” killings should know that the gallows await them.”
Supreme Court of India
Shakti Vahini vs Union Of India on 27 March, 2018
To meet the challenges of the agonising effect of honour crime, we think that there has to be preventive, remedial and punitive measures and, accordingly, we state the broad contours and the modalities with liberty to the executive and the police administration of (2013) 14 SCC 672 the concerned States to add further measures to evolve a robust mechanism for the stated purposes. I. Preventive Steps:-
(a) The State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years.
(b) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer Incharge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter- religious marriage within their jurisdiction comes to their notice.
(c) If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall forthwith inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police.
(d) On receiving such information, the Deputy Superintendent of Police (or such senior police officer as identified by the State Governments with respect to the area/district) shall immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting. Additionally, he should issue appropriate directions to the Officer Incharge of the jurisdictional Police Station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering.
(e) Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action.
(f) If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C.
(g) The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of such violence and to implement the constitutional goal of social justice and the rule of law.
(h) There should be an institutional machinery with the necessary coordination of all the stakeholders. The different State Governments and the Centre ought to work on sensitization of the law enforcement agencies to mandate social initiatives and awareness to curb such violence. II. Remedial Measures:-
(a) Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC.
(b) Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.
(c) Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate
(i) young bachelor-bachelorette couples whose relationship is being opposed by their families /local community/Khaps and (ii) young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police.
(d) The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.
(e) The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.
(f) The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police incharge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be. III. Punitive Measures:-
(a) Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance.
(b) In terms of the ruling of this Court in Arumugam Servai (supra), the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
(c) The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage.
(d) These Special Cells shall create a 24 hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple.
(e) The criminal cases pertaining to honour killing or violence to the couple(s) shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence. We may hasten to add that this direction shall apply even to pending cases. The concerned District Judge shall assign those cases, as far as possible, to one jurisdictional court so as to ensure expeditious disposal thereof.
2019 death sentences affirmation and commutation :-
Nirbhaya Case : SC Dismisses The Last Review Plea Against Death Penalty
Akshay Kumar Singh vs. State
The Supreme Court bench comprising Justices R Banumathi, Ashok Bhushan and AS Bopanna on Wednesday dismissed the last pending review petition in the Nirbhaya gang rape-murder case, which was filed by Akshay Kumar Singh, one of the four convicts awaiting execution of death sentence.
Rape-death of minor girl : Death penalty upheld with 2 : 1 majority
Manoharan v State
The Supreme Court (2:1) upheld the death sentence awarded to a man involved in gang rape of a ten year old girl and thereafter murdering her and her brother. The appeal filed by Manoharan against the High Court judgment was heard by a three judge bench comprising of Justice Rohinton Fali Nariman, Justice Surya Kant and Justice Sanjeev Khanna. However, Justice Sanjiv Khanna dissented with the confirmation of death sentence and opined that the case does not fall under the category of 'rarest of rare' case, but would fall within the special category of cases where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission/commutation.
Later, in August 2019, the bench dismissed the review petition filed by Manoharan. Among other things, it held that dissent by one judge not a bar for upholding death penalty: sc rejects review petition of death convict.
SC Confirms By 2:1 Majority Death Penalty For Rape-Murder Of Infant; Justice Reddy Dissents
Ravi v State of Maharashtra
The Supreme Court confirmed by 2:1 majority death penalty to a man found guilty for murder and rape of a two year old girl. While the majority comprising Justices R F Nariman and Surya Kant upheld the death penalty confirmed by the Bombay High Court in the case, Justice Subhash Reddy dissented.
SC Affirms Death Penalty To 'Tantric' Couple Who Killed Infant For Human Sacrifice:-
Ishwari Lal Yadav V. State of Chhattisgarh
The Supreme Court affirmed the death sentence awarded to a 'tantric' couple accused of murdering a boy, by performing the ritual of human sacrifice. The bench of Justice Rohinton Fali Nariman, Justice R. Subhash Reddy and Justice Surya Kant, after examining the evidence on record, unanimously held that the instant case is a case of "rarest of rare cases" where death sentence" can be imposed.
SC Confirms Death Penalty Awarded To Man Accused Of Killing Six Persons
Khushwinder Singh V. State of Punjab
The Supreme Court, after a long gap and a series of commutations, confirmed a death sentence in a judgment. Ironically, this judgment has been delivered on the same day when the same bench, in another case, acquitted six 'death convicts' who were sentenced to death by the Apex Court in 2009. The bench comprising Justice AK Sikri, Justice Abdul Nazeer and Justice MR Shah upheld the death penalty imposed on Khushwinder Singh, convicted of murdering six persons belonging to a family, out of which two were minors – below 10 years of age
Death Penalty Cases: Commutations & Acquittals
He May Be a Reformed Person Already: SC Commutes Death Sentence To Pune Driver Who Killed 9 By His Murderous 'Joy Ride'
Santosh Maruti Mane v. State of Maharashtra
The Supreme Court commuted death penalty awarded to a bus driver whose murderous 'joy ride' had resulted in death of nine persons in the year 2012. The bench comprising of Justice AK Sikri, Justice S Abdul Nazeer and Justice MR Shah observed that though the defence of insanity is not established in this case, the accused was under mental strain and stress which resulted in the tragedy. Apex Court Bench added that,"In fact, he may be a reformed person already, as the Court has been informed that the appellant is regretting his action taken in undue palpitation". "Otherwise, he is not a person of any criminal antecedents. Nothing is indicated about his propensity of criminality on his part. Further, the Court was also informed about his conduct in jail has been satisfactory."
Rape And Murder Of 8-Yr-Old Girl: SC Commutes Death Sentence To 25 Yrs Imprisonment Without Remission
Nand Kishore v. State of Madhya Pradesh
The Supreme Court on Friday commuted to life imprisonment the death sentence, as confirmed by the Madhya Pradesh High Court, of a convicted for the rape and murder of an 8-year-old girl. The bench of Justices SA Bobde, L Nageswara Rao and R Subhash Reddy noted that the appellant was chargesheeted under Sections 5 and 6 of Protection of Children from Sexual Offences Act, 2012, in addition to the offences under Sections 302, 363, 366 and 376(2)(i) of the IPC.
Post Conviction Mental Illness Is A Mitigating Factor To Commute Death Sentence
Accused X vs. State of Maharashtra
The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee commuted death penalty of a person convicted of rape and murder of two minor girls. It held that post conviction mental illness will be a mitigating factor while considering appeals of death convicts
When Second Conviction For Murder Would Warrant Imposition Of Death Sentence?
Yogendra @ Jogendra Singh vs. State of Madhya Pradesh
The bench headed by Justice Bobde commuted death sentence awarded to a man convicted for murder of a women by pouring acid on her. The court observed that a second conviction for murder would warrant the imposition of a death sentence only if there is a pattern discernible across both the cases.
Death Sentence Only When Alternative Option Is Unquestionably Foreclosed
Raju Jagdish Paswan v. State of Maharashtra
The Supreme Court commuted death penalty of a man accused of rape and murder of a 9-year-old girl and sentenced him to 30 years of imprisonment without remission. The bench comprising Justice SA Bobde, Justice L Nageswara Rao and Justice R Subhash Reddy observed that even though the murder involves exceptional depravity and the manner of commission of the crime is extremely brutal, a death sentence can be imposed only when the alternative option is unquestionably foreclosed. The bench also directed the states to consider implementing the reformative and rehabilitation programmes contained in the Model Prison Manual of 2016.
Acquitted 3, Commuted Death Penalty of One
Basavaraj v. State of Karnataka
The Supreme Court on Wednesday acquitted three murder accused whose death penalty was confirmed by the high court. The three-judge bench comprising CJI Ranjan Gogoi, Justice L Nageswara Rao and Justice Sanjiv Khanna commuted death penalty awarded to one accused to life imprisonment.
We Feel Somewhat Reluctant In Endorsing The Death Sentence: SC Commutes Death Penalty Awarded To 'Tutor'
Parsuram V. State of Madhya Pradesh
The Supreme Court, on Tuesday, commuted the death sentence awarded to a 'tutor' convicted of rape and murder of a seven year old girl, and sentenced him to undergo imprisonment of 30 years (without any remission).
Inordinate & Unexplained Delay In Deciding Mercy Petition: SC Commutes Death Sentence
Jagdish V. State of Madhya Pradesh
The Supreme Court commuted death sentence awarded to a man convicted for murder of his wife and five children, mainly on the ground of inordinate and unexplained delay in deciding the mercy petition.
HC Judgment Confirming Death Sentence Silent On The Question Of Conviction: SC Remits It For Fresh Consideration
Pappu@ chandra Kumar V. State of Uttar Pradesh
The Supreme Court set aside an Allahabad High Court judgment that confirmed a death sentence without dealing with the issue as to whether the conviction recorded by the trial court was justified or not. The bench comprising of Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, remitted the case to the High Court for fresh consideration on merits.
Rape & Murder Of 7.5 Year Old: SC Commutes Death Sentence
Vijay Raikwar V. State of Madhya Pradesh
The Supreme Court commuted the death sentence awarded to a man convicted for rape and murder of 7 1/2 year old girl. Three Judge Bench comprising of Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, upheld the conviction, but observed that, though the crime can be said to be brutal, but does not warrant death sentence.
SC Finally Corrects The Error: Acquits Six Persons Sentenced To Death By A 2009 Judgment
Ankush Maruti Shinde V. State of Maharashtra
The Supreme Court acquitted three persons who were sentenced to death by it in 2009, and also three others whose death penalty was confirmed by it. The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, also ordered the State of Maharashtra to pay Rupees 5 Lakh as damages to each of them.
SC Acquits Two Men Sentenced To Death By Chhattisgarh HC
Digamber Vaishnav V. State of Chhattisgarh
In yet another judgment the Supreme Court acquitted two men whose death sentence was confirmed by the Chhattisgarh High Court. The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, acquitted DigamberVaishnav and Girdhar iVaishnav who were accused of robbery and murder of five women.
Death Sentence Can Be Imposed Only When Life Imprisonment Appears To Be An Altogether Inappropriate Punishment
Sachin Kumar Singhraha V. State of Madhya Pradesh
While commuting death sentence awarded to a man convicted for rape and murder of a five year old girl, the Supreme Court observed that death sentence must be imposed only when life imprisonment appears to be an altogether inappropriate punishment. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Indira Banerjee sentenced Sachin Kumar Singhraha to undergo a sentence of 25 years' imprisonment (without remission).
SC Sets Aside Death Sentence In A 13 Day Trial, Says 'Fast Tracking Must Not Result In Burial Of Justice
Anokhilal vs. State of MP
The bench comprising Justice Uday Umesh Lalit, Justice Indu Malhotra and Justice Krishna Murari issued these guidelines while setting aside a death penalty awarded to a rape and murder accused in a trial that finished within thirteen days. The Court found that, in this case, the Amicus Curiae did not get the sufficient time to go through even the basic documents, nor the advantage of any discussion or interaction with the accused, and time to reflect over the matter. It observed that expeditious disposal of criminal cases must never result in burying the cause of justice. It then directed the Trial Court to de novo consider the case.