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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1871-1872 OF 2011 (Arising out of SLP(CRL) Nos.9516-9517 of 2009)  

Rajesh Kumar ...Appellant(s)

- Versus -

State through Govt. of NCT of Delhi ...Respondent(s)

J U D G M E N T

GANGULY, J.

1.Leave granted.

2. These  Criminal  Appeals  are  preferred  from  the  

judgment  of  conviction  under  section  302  of  the  

Indian  Penal  Code  (hereinafter  “IPC”)  and  the  

penalty of death sentence, delivered on 6th August,

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2009 by the High Court of Delhi in Death Sentence  

Reference  no.  2/2007  and  Criminal  Appeal  no.  

635/2007,  whereby  the  High  Court  upheld  the  

conviction and confirmed the penalty of the death  

sentence imposed by the Additional Sessions Judge,  

Rohini Court in Session Case  No.178/06.

3.This Court had issued notice on the limited question  

of quantum of sentence. The facts and circumstances,  

which are relevant to these appeals, are as under.

4.According to the prosecution, the duty officer in  

the Police Control Room received a call from number  

20056630 at 15:38 hours on 28.7.2003 informing him  

that a man had entered a house in Subhash Nagar and  

had assaulted two children and had locked the door  

of a room from inside. Another call was made to the  

Police  Control  Room  from  mobile  No.  9810458303  

noting that the informant had informed that a man

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had  murdered  two  children  inside  House  No.  2/129  

Subhash Nagar near Arya Samaj Temple.

5.Each  time  the  duty  officer  at  the  police  control  

room, on receipt of afore-noted information, relayed  

the information to the concerned police station i.e.  

P.S.  Rajouri  Garden,  where  the  duty  constable  

recorded the said information by way of entries in  

the daily diary register, being DD No. 11, Ex.PW-

16/A at 3:35 PM and DD No. 12, Ex.PW-16/B at 3:50  

PM.

6.ASI Jagpal PW-22 was handed over a copy of both the  

DD entries and was deputed to investigate. He took  

along with him HC Naresh PW-19 and Const. Sukhbir  

PW-24. The three police officers reached House No.  

2/129 Subhash Nagar. A crowd had gathered outside  

the  house.  Mr.  Bahadur  Singh  PW-4  a  resident  of  

House  No.  2/130  Subhash  Nagar  i.e.  the  immediate  

neighbour  and  one  Mr.  Negi  (not  examined  as  a

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witness) were present in the gathering and told the  

police  officers  that  the  assailant  had  locked  

himself in a room on the second floor of House No.  

2/129  Subhash  Nagar.  The  officers  climbed  up  the  

staircase and reached the second floor and knocked  

the door. The man inside did not oblige. The three  

police  officers  had  a  peep  inside  through  the  

ventilator above the door and saw the body of a male  

child, smeared with blood and the neck badly cut.  

Blood was splattered all over the room. They had no  

option but to break open the door and apprehend the  

man inside who was Rajesh Kumar, the appellant.

7.Inspector Ram Chander PW-32, the SHO of P.S. Rajouri  

Garden,  was  given  the  information  about  a  man  

killing two children on the second floor of House  

No. 2/129 Subhash Nagar. He reached the house and by  

that time the appellant had been apprehended by ASI  

Jagpal Singh, HC Naresh and Const. Sukhbir.

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8.On learning that Harshit, the younger son had been  

removed  to  Chanan  Devi  Hospital,  Inspector  Ram  

Chander went to the hospital and learnt that Harshit  

was in an unconscious state. He collected the MLC  

Ex.PW-8/A of Harshit and returned to the spot.

9.Inspector Ram Chander recorded the statement Ex.PW-

1/A of Sangeeta Sethi and made an endorsement Ex.PW-

32/A on the same. He sent the same through Constable  

Kamal  at  6.30  PM  for  registration  of  an  FIR.  HC  

Rajesh Tyagi PW-17, the duty officer at P.S. Rajouri  

Garden, recorded the FIR Ex.PW-17/A at 6:50 PM on  

the  basis  of  the  statement  of  Sangeeta  Sethi  and  

sent  a  copy  of  the  FIR  back  to  the  spot  with  

Constable Kamal. Constable Amarender PW-8 was handed  

over the FIR to be delivered to the Area Magistrate  

and he left the police station at around 7:20 PM and  

returned to the police station at 10:10 PM.

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10. After  the  incident,  Swanchetan,  a  Society  for  

Mental Health was informed by the police and they  

were  requested  to  counsel  the  family.  Dr.  Rajat  

Mitra   (P.W.-7), Director of Swanchetan Society for  

Mental Health found the mother of the children in a  

state of total shock and she was unable to speak.  

Dr. Rajat Mitra then talked with the appellant and  

did not find an abnormality in the behavior of the  

appellant  wherefrom  he  could  be  certified  as  an  

insane person.

11. The  investigation  being  complete,  the  police  

personnel left for the police station. The appellant  

was formally arrested as recorded in the arrest memo  

Ex.PW-32/F at 10:00 PM from the place of occurrence.

12. Unfortunately Master Harshit could not survive and  

died the same night in the Hospital.

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13. The appellant was charged under section 302 IPC  

for committing the murder of two children namely,  

Anshul and Harshit.

14. At the trial, Sangeeta PW-1, the mother of the two  

children, deposed that she was a housewife and was  

living  on  the  second  floor  of  house  No.  2/129,  

Subhash  Nagar  at  the  time  of  the  occurrence.  Her  

elder son was named Anshul and the younger one was  

named Harshit. Their age was 4½ years and 8 months  

respectively. The incident took place at around 3:00  

PM on 28.7.2003 when she was present in her house  

and  her  sons  were  sleeping  in  the  bed  room.  

Appellant  came  and  asked  for  water.  She  gave  him  

water.  Appellant  wanted  a  meal.  She  went  to  the  

kitchen and heard cries of Harshit. She returned and  

picked up Harshit. Appellant told her to give the  

child to him and cook meals for him. She gave her  

child to the appellant and went to the kitchen. Her  

son  cried  continuously  even  in  the  arms  of  the

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appellant and suddenly the crying stopped. She went  

to the bed room and saw that her son was being held  

from his legs by the appellant who was hitting the  

child on the floor. Her other son was sleeping on  

the bed in the same room. She snatched her son from  

the appellant and rushed to Pinki’s house and handed  

over her unconscious son to Pinki and rushed back,  

by which time the appellant had bolted the door. She  

raised an alarm. She heard her son crying Ma Ma..  

Suddenly  the  cries  died  down.  By  that  time  her  

neighbour  Pritam  Singh  and  Bahadur  as  also  a  few  

other  persons  gathered.  The  police  arrived  and  a  

police  person  climbed  a  table  and  through  a  

ventilator  saw  the  dead  body  of  her  son  and  the  

appellant  standing  nearby.  They  pushed  and  opened  

the door. She saw her son with his throat slit. A  

piece of glass, stained with blood, was lying on the  

chest  of  her  son.  The  dressing  table  glass  was  

broken. The walls were stained with blood.

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15. PW-1  was  cross-examined  and  she  admitted  that  

there  was  no  quarrel  between  her  husband  and  the  

appellant  qua  the  demand  of  any  money,  but  

volunteered that the appellant used to demand money  

from her husband.  

16. Mukesh Sethi PW-2, the husband of PW-1, deposed  

that on the day of the incident i.e. 28.7.2003, he  

was residing with his wife and children on the 2nd  

floor  of  house  No.  2/219,  Subhash  Nagar,  and  the  

appellant was the husband of his sister Alka, and  

was unemployed for the last 2½ to 3 years and during  

this period the appellant used to demand money for  

setting up business and that he gave him Rs.15,000/-  

and Rs.20,000/- on two occasions. 15-20 days prior  

to  the  date  of  the  incident  the  appellant  had  

demanded more money, which he refused because he did  

not have money to spare. On 28.7.2003 at around 4-

4:15 PM he was sitting in his other house at Rohini  

and received a call from his wife who rang up from a

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neighbour’s house at 4:45 PM. He reached his house  

and saw a crowd and the police. His wife was crying  

that her children had been killed. His younger son  

had been removed to the hospital and the other son  

was lying dead inside the house.  

17. PW-2  was  cross-examined  and  he  admitted  that  

relations between him and the appellant were normal.  

He stated that he saw the appellant for the first  

time after the incident in the police station only.  

He denied that the appellant was mentally sick.  

18. The  appellant  did  not  lead  any  evidence  in  

defence.  

19. After  the  appreciation  of  evidence,  the  Trial  

Court observed that the prosecution established the  

charges  against  the  appellant  beyond  reasonable  

doubt.  Consequently,  the  Trial  Court  vide  order-

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dated  12.03.2007  convicted  the  appellant  under  

section  302  IPC  and  vide  order  dated  24.03.2007  

awarded death sentence to the appellant subject to  

the confirmation of the High Court.

20. Consequently, a petition for confirmation of Death  

Sentence bearing Death Sentence Ref. no. 2/2007 was  

filed before the High Court  

21. Being  aggrieved  the  appellant  also  preferred  a  

Criminal Appeal no. 635/2007 before the High Court.

22. By judgment dated 06th August 2009, the High Court  

after  re-appreciation  of  the  entire  evidence  on  

record observed that it is beyond reasonable doubt  

that  the  appellant  committed  the  murder  of  two  

children and upheld the conviction of the appellant  

under  section  302  IPC.  The  High  Court  further  

observed  that  the  case  falls  in  the  category  of

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rarest of rare case, dismissed the Criminal Appeal  

filed  by  the  appellant  and  confirmed  the  death  

sentence imposed upon him.

23. The  learned  Counsel  for  the  appellant  submitted  

that the facts of this case do not put the case in  

the  category  of  the  rarest  of  the  rare  cases,  

attracting  the  penalty  of  death.  Listing  the  

mitigating circumstances in this case, the learned  

Counsel urged that there are several of them. The  

first  is  that  the  appellant  is  a  first  time  

offender. The second is that he has two sons, a wife  

and a widowed mother to support. The third is the  

young age of the appellant who was aged 37 years  

when  he  committed  the  crime.  The  fourth  is  the  

chance  of  the  appellant’s  rehabilitation  in  the  

society being not ruled out. The fifth, which is a  

corollary of the fourth is, that it cannot be said  

that  the  appellant  is  a  continuing  threat  to  the  

society.

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24. The learned Additional Solicitor General appearing  

on  behalf  of  the  State  urged  that  the  facts  and  

circumstances of this case clearly bring it within  

the rarest of rare case and warrants the imposition  

of  death  sentence.  He  argued  that  the  appellant  

killed two children, one of which was 8 months old  

and  the  other  was  4½  years  of  age,  who  were  

obviously  unarmed  and  innocent  and  incapable  of  

giving any provocation to the appellant.

25. The  learned  Additional  Solicitor  General  also  

contended that the killing of children is always a  

heinous crime. The evidence against the appellant is  

clinching  and  the  appellant  has  not  suffered  any  

remorse.

26. The learned Additional Solicitor General referred  

to the report from Swanchetan, which is a society  

for  mental  health.  The  said  report  reflects  the

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opinion  of  Dr.  Rajat  Mitra  (PW-7),  Director  of  

Swanchetan,  who  examined  the  appellant  after  the  

incident.

27. By  placing  reliance  on  the  said  report,  the  

learned Additional Solicitor General argued that the  

appellant did not show any sign of remorse to Dr.  

Rajat  Mitra,  when  he  was  examined  after  the  

incident.

28. The  learned  Additional  Solicitor  General  also  

referred to report of All India Institute of Medical  

Sciences dated 27.05.2009. This report was prepared  

pursuant to the order of the Delhi High Court dated  

04.05.2009.  The  said  Medical  Board  examined  the  

appellant on 27.05.2009. The Board opined that the  

appellant  is  of  sound  mind  and  did  not  want  to  

discuss  the  issue  of  the  nature  of  offence  but  

informed the Doctor that he has to spend his life in

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prison. The Medical Board opined that the appellant  

was mentally fit.

29. The learned Additional Solicitor General also drew  

the attention of this Court to Question no. 138 in  

the examination of appellant under section 313 of  

Criminal Procedure Code.  Both the question and the  

answer are set out below:

“Q.138  Anything else you want to say?

A. I am unwell since childhood. I am on  medicine since then. The problem with me is  that I fell anywhere while walking. I also  start  shouting.  I  become  unaware  about  myself. My treatment was under going in jail  and of late now I have left my treatment, as  doctor is not going to change my medicine.  The problem, which I was facing in the past  has re-surfaced. Even in the past while I  use to drive my eyes use to get closed of  its own. Mukesh and his relations know about  my medical problems.

I do not know how Anshul and Harshit  have expired. I am innocent. I have been  falsely  implicated.  My  medical  documents  have been torn apart by my wife and for that  reason out of having a sense of guilt she  has  not  come  to  see  me  even  in  jail.  I  cannot produce these medical papers.

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30. In  the  impugned  judgment,  the  High  Court  also  

noted  certain  mitigating  factors  which  are  as  

follows:

“48. … The first is that the appellant is a  first time offender. The second is that he  has two sons, a wife and a widowed mother to  support.  The  third  is  the  fact  that  financial  hardship  created  stress  in  the  mind compelling the appellant to commit the  crime. The fourth is the young age of the  appellant  who  was  aged  37  years  when  he  committed the crime. The fifth is the chance  of  the  appellant’s  rehabilitation  in  the  society being not ruled out.”

31. In  para  79  of  the  impugned  judgment,  the  High  

Court has noted the aggravating circumstances. The  

first aggravating circumstance which the High Court  

noted is the brutal, diabolical and dastardly nature  

of assault by the appellant on the two children. The  

second  aggravating  circumstance  is  the  trauma  

produced  on  the  mother  of  children.  The  third  

aggravating  circumstance  is  that  the  victims  are  

innocent  children.  The  fourth  aggravating  

circumstance is breach of trust by the appellant.  

The  appellant  wanted  P.W.1,  the  mother  of  the

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children, to cook food for him and the mother went  

to  the  kitchen  giving  the  younger  child  to  the  

appellant, trusting that no harm would be caused to  

the  child  but  that  trust  was  breached.  The  fifth  

aggravating circumstance was the close relationship  

between  the  appellant  and  the  victims.  The  sixth  

aggravating  circumstance,  pointed  out  by  the  High  

Court,  is  the  motive  of  revenge  of  the  appellant  

towards the children, as the father of the children  

did not extend financial help to him. The seventh  

aggravating circumstance is the lack of remorse on  

the part of the appellant. The eighth aggravating  

circumstance is pre-meditation of the appellant in  

committing the crime and the cruel weapon of offence  

used namely a piece of glass, which was retrieved by  

breaking the mirror of the dressing table.

32. The  High  Court  in  the  impugned  judgment  while  

balancing  these  circumstances  confirmed  the  Death  

Sentence.

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33. In so far as the plea of insanity is concerned,  

both the Trial Court and the High Court rejected the  

same.  In  fact  no  such  plea  was  taken  by  the  

appellant in the Trial Court. Before this Court also  

the  said  plea  of  insanity  has  been  taken  half-

heartedly. What has been primarily argued in this  

Court is that the Trial Court and the High Court had  

improperly balanced the consideration of aggravating  

and mitigating circumstances and it has been urged  

that  if  mitigating  circumstances  are  properly  

weighed in accordance with the well-known judicial  

principles,  the  death  sentence  awarded  to  the  

appellant cannot be sustained.

34. In this connection, we may consider the evolution  

of  sentencing  structure  and  the  concept  of  

mitigating circumstances in India relating to death  

penalty.  The  Code  of  Criminal  Procedure,  1898  

(hereinafter “1898 Code”), had section 376(5) which

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required  that  if  an  accused  is  convicted  of  an  

offence  punishable  with  death  and  the  court  

sentences him with any punishment other than death,  

the court shall, in its judgment, give reasons why  

death  sentence  was  not  passed.  The  provision  of  

section 367(5) of 1898 Code reads as follows:

“(5) If  the  accused  is  convicted  of  an  offence punishable with death, and the court  sentences him to any punishment other than  death, the court shall in its judgment state  the  reason  why  sentence  of  death  was  not  passed.”

35. This was during the colonial days when the worth  

and dignity of human life was not the central point  

in our jurisprudence.

36. Even after the coming of Constitution of India,  

the  aforesaid  provision  of  section  367(5)  of  the  

1898 Code continued for some time.

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37. In 1955, the Code of Criminal Procedure (Amendment)  

Act, 1955 deleted the aforesaid section 367(5) of  

the 1898 Code. As a result of this amendment, which  

came into effect from 1st January 1956, it was no  

longer  necessary  for  a  Court  to  record  in  its  

judgment, in case of conviction in connection with  

an offence punishable with death, any reason for not  

imposing the death sentence.

38. With  the  functioning  of  this  Court  under  the  

Constitution, several cases of death sentence came  

before this Court from 1950 onwards. But reference  

to extenuating or mitigating circumstances in a case  

of  death  penalty  was  made  possibly  for  the  first  

time by this Court in the case of Nawab Singh v. The  

State of Uttar Pradesh (AIR 1954 SC 278). In that  

case it was urged that for delay of execution, the  

death  sentence  should  be  commuted  to  one  for  

transportation of life. This Court rejected the said  

argument  holding  inter-alia  that  it  is  a  matter

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primarily for the consideration of local Government.  

This Court, however, opined that in a proper case an  

inordinate delay in the execution of sentences may  

be regarded as a ground for commutation. However,  

this  Court  held  that  in  the  facts  of  that  case  

murder was a cruel and deliberate one and there were  

no extenuating circumstances.  

39. After the amendment of 1898 Code, in the year 1955,  

the  first  case  relating  to  death  sentence,  which  

came before this Court was that of  Vadivelu Thevar  

v. The State of Madras reported in AIR 1957 SC 614  

wherein  this  Court  made  the  following  pertinent  

observations:

“13……If  the  court  is  convinced  about  the  truth of the prosecution story, conviction  has to follow. The question of sentence has  to be determined, not with reference to the  volume or character of the evidence adduced  by  the  prosecution  in  support  of  the  prosecution case, but with reference to the  fact  whether  there  are  any  extenuating  circumstances which can be said to mitigate  the enormity of the crime. If the court is  satisfied  that  there  are  such  mitigating

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circumstances,  only  then,  it  would  be  justified in imposing the lesser of the two  sentences provided by law.  In other words,  the nature of the proof has nothing to do  with the character of the punishment. The  nature of the proof can only bear upon the  question of conviction - whether or not the  accused has been proved to be guilty. If the  court comes to the conclusion that the guilt  has been brought home to the accused, and  conviction follows, the process of proof is  at  an  end.  The  question  as  to  what  punishment  should  be  imposed  is  for  the  court to decide in all the circumstances of  the case with particular reference to any  extenuating circumstances……”

40. It is, therefore, clear that this Court was making  

a distinction between its formation of opinion on  

the  conviction  of  the  accused  for  the  crime  

committed  and  its  formation  of  opinion  on  the  

punishment  to  be  imposed  for  the  crime  on  

consideration  of  extenuating  or  mitigating  

circumstances.  

41. The  next  decision  of  this  Court  rendered  on  the  

constitutionality of death sentence was in the case  

of Jagmohan Singh v. The State of U.P. (1973) 1 SCC

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20.   The  Constitution  Bench  of  this  Court  in  

Jagmohan  Singh (supra)  examined  whether  total  discretion  can  be  conferred  on  the  judges  in  

awarding death sentence, when the statute does not  

provide any guidelines on how to exercise the same.

42. The decision in Jagmohan Singh (supra) was rendered  

when the present Code of Criminal Procedure, 1973  

was not in existence.

43. The  Constitution  Bench  in  Jagmohan  Singh (supra)  

held  that  the  policy  of  the  law  giving  a  wide  

discretion to the judges in the matter of imposition  

of  death  sentence  had  its  origin  in  the  

impossibility  of  laying  down  any  standards  for  

exercise  of  such  discretion.  However,  the  Court  

found that such discretion is liable to be corrected  

by superior courts, but the court did not find that  

conferment  of  such  discretion  on  the  judges  was  

unconstitutional.  

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44. The  Constitution  Bench  in  Jagmohan  Singh (supra)  however  felt  it  difficult  to  follow  the  ratio  of  

United States Supreme Court in William Henry Furman  

v. State  of  Georgia [reported in   408  US  238  

(1972)], as this Court found that our Constitution  

does not have a provision like the Eighth Amendment  

of  the  Constitution  of  United  States.  This  Court  

also held in Jagmohan Singh (supra) that the test of  reasonableness cannot be applied by this Court in  

the  same  manner  as  is  done  by  the  United  States  

Supreme  Court  in  view  of  the  existence  of  ‘due  

process  clause’  in  the  United  States  Constitution  

(see para 12 at page 27 of the report). The learned  

Judges  quoting  from  the  commentary  by  Ratanlal’s,  

Law of Crimes, (Twenty-second edition), referred to  

certain mitigating and aggravating circumstances in  

para 22 at page 32 of the report, but opined that  

the said list is not exhaustive (para 23 at page 32  

of the report).

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45. In paragraph 28 at page 36 of the report in Jagmohan  Singh (supra) the Constitution Bench found that the  legal position as it stood in 1972 was as follows:-

“……..The  sentence  follows  the  conviction,  and it is true that no formal procedure for  producing  evidence  with  reference  to  the  sentence  is  specifically  provided.  The  reason  is  that  relevant  facts  and  circumstances  impinging  on  the  nature  and  circumstances  of  the  crime  are  already  before  the  court.  Where  counsel  addresses  the court with regard to the character and  standing  of  the  accused,  they  are  duly  considered  by  the  court  unless  there  is  something  in  the  evidence  itself  which  belies him or the Public Prosecutor for the  State challenges the facts. If the matter is  relevant  and  essential  to  be  considered,  there is nothing in the Criminal Procedure  Code  which  prevents  additional  evidence  being  taken.  It  must,  however,  be  stated  that it is not the experience of criminal  courts in India that the accused with a view  to obtaining a reduced sentence ever offers  to call additional evidence.”

46. However,  the  aforesaid  position  substantially  

changed  with  the  introduction  of  a  changed  

sentencing  structure  under  the  present  Code  of  

Criminal  Procedure,  1973.  If  we  compare  the  1898

26

Code with 1973 Code, we would discern lot of changes  

between the two Codes in sentencing structure.   

47. Chapter XXIII of 1898 Code under the heading of  

“Trial before the High Court and Sessions Courts”  

lays down the procedure for trials conducted before  

a High Court or Court of sessions.  Section 268 of  

1878  Code  provides  for  trials  before  a  Court  of  

sessions either by a Jury or by the Judge himself.  

Section 309 of 1898 Code provides for the manner in  

which judgment is to be given in cases tried by the  

Judge himself.  

48. Section 309 of 1898 Code reads as follows :  

“309. Judgment in cases tried by the Judge  himself.- (1) When,  in  a  case  tried  by  the  Judge  himself, the case for the defence and the  prosecutor’s reply (if any) are concluded,  the Judge shall give a judgment in the case.

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(2) If the accused is convicted, the Judge  shall, unless he proceeds in accordance with  the provisions of Section 562, pass sentence  on him according to law.”

49. The 41st Law Commission Report (Volume I) dated 24th  

September, 1969 proposed extensive changes in 1898  

Code. In paragraph 23.2 of the said report, the Law  

Commission recommended a set of new provisions for  

governing “Trials before a Court of sessions”. With  

regard  to  Section  309  of  the  1898  Code,  the  Law  

Commission recommended that hearing of the accused  

was  most  desirable  before  passing  any  sentence  

against  him.  This  recommendation  was  accepted  and  

incorporated  while  enacting  Section  235  Cr.P.C  in  

1973 Code within Chapter XVIII of the same under the  

heading “Trial before a Court of Sessions”.  

50. Section 235 Cr.P.C. reads as follows:  

“235. Judgement of acquittal or conviction.  – (1) After hearing arguments and points of  law  (if  any),  the  Judge  shall  give  a  judgment in the case.

(2) If the accused is convicted, the Judge  shall, unless he proceeds in accordance with

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the  provisions  of  section  360,  hear  the  accused  on  the  question  of  sentence,  and  then pass sentence on him according to law.

51. The most significant change brought about by the  

incorporation  of  the  recommendation  of  the  Law  

Commission (supra), is the giving of an opportunity  

of  hearing  to  the  accused  on  the  question  of  

sentence.  This  is  the  incorporation  of  the  great  

humanizing principle of natural justice and fairness  

in procedure in the realm of penology. The trial of  

an  accused  culminating  in  an  order  of  conviction  

essentially relates to the offence and the accused  

under  1898  Code  did  not  get  any  statutory  

opportunity to establish and prove in such trial the  

mitigating  and  other  extenuating  circumstances  

relating to himself, his family and other relevant  

factors  which  are  germane  to  a  fair  sentencing  

policy.  This  opportunity  of  hearing  at  the  post  

conviction stage, gives the accused an opportunity  

to  raise  fundamental  issues  for  adjudication  and

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effective determination by Court of its sentencing  

discretion in a fair and reasonable manner.

52. Similarly the corresponding provision of section 354  

of 1973 Code was section 367 of the 1898 Code. Both  

the sections 354 of 1973 Code and section 367 of  

1898 Code have virtually the same title. In section  

367  of  1898  Code,  it  was  ‘Language  of  judgment.  Contents  of  judgment’ and  in  1973  Code,  title  of  section 354 is ‘Language and contents of judgment’.  But  Section  354  of  1973  Code  is  substantially  

different from section 367 of 1898 Code as there was  

no such provision as section 354(3) of 1973 Code in  

the 1898 Code.  Section 354 of 1973 Code runs as  

under:-

“354. Language and contents of judgment. -  (1) Except as otherwise expressly provided  by this Code, every judgment referred to in  section 353,—

(a) shall be written in the language of  the Court;

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(b) shall contain the point or points for  determination,  the  decision  thereon  and  the reasons for the decision; (c) shall specify the offence (if any) of  which,  and  the  section  of  the  Indian  Penal  Code  (45  of  1860)  or  other  law  under which, the accused is convicted and  the punishment to which he is sentenced; (d)  if  it  be  a  judgment  of  acquittal,  shall  state  the  offence  of  which  the  accused is acquitted and direct that he  be set at liberty.

(2) When the conviction is under the Indian  Penal Code (45 of 1860) and it is doubtful  under which of two sections, or under which  of two parts of the same section, of that  Code  the  offence  falls,  the  Court  shall  distinctly  express  the  same,  and  pass  judgment in the alternative. (3) When the conviction is for an offence  punishable  with  death  or,  in  the  alternative, with imprisonment for life or  imprisonment  for  a  term  of  years,  the  judgment  shall  state  the  reasons  for  the  sentence  awarded,  and,  in  the  case  of  sentence of death, the special reasons for  such sentence. (4) When the conviction is for an offence  punishable with imprisonment for a term of  one year or more, but the Court imposes a  sentence of imprisonment for a term of less  than  three  months,  it  shall  record  its  reasons for awarding such sentence, unless  the sentence is one of imprisonment till the  rising of the Court or unless the ease was  tried summarily under the provisions of this  Code.

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(5) When any person is sentenced to death,  the sentence shall direct that he be hanged  by the neck till he is dead. (6) Every order under section 117 or sub- section (2) of section 138 and every final  order made under section 125, section 145 or  section  147  shall  contain  the  point  or  points  for  determination,  the  decision  thereon and the reasons for the decision.”

53. The importance of section 235(2) of 1973 Code has  

been explained by this Court in several decisions  

and its importance can hardly be overemphasized in a  

case  where  prosecution  demands  the  imposition  of  

death penalty and the court awards the same.

54. In Santa Singh v. State of Punjab [(1976) 4 SCC 190]  this  Court  held  that  this  new  provision  is  in  

consonance with the modern trends in penology and  

sentencing  procedures.  Noticing  the  fact  that  

section 235(2) is a new provision introduced by the  

legislature  in  1973  Code,  this  Court  went  on  to

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explain  that  this  is  an  important  stage  in  the  

process of administration of criminal justice and is  

as important as the adjudication of guilt and this  

stage  should  not  be  confined  to  a  subsidiary  

position  as  if  it  were  a  matter  of  not  much  

consequence.

55. In Santa Singh (supra) this Court noted that in most  countries  of  the  world  problem  of  sentencing  the  

criminal offender is receiving increasing attention  

and it is so in view of rapidly changing attitude  

towards  crime  and  criminal.  In  many  countries,  

intensive  study  of  sociology  of  the  crime  has  

shifted the focus from the crime to the criminal,  

leading  to  a  widening  of  the  objectives  of  

sentencing and simultaneously of the range of the  

sentencing procedures.

56. Bhagwati, J., (as His Lordship then was) giving the  

judgment  in  Santa  Singh  (supra)  pointed  out  and

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which was later on accepted in Bachan Singh v. State  of Punjab [(1980) 2 SCC 684] that proper exercise of  sentencing  discretion  calls  for  consideration  of  

various  factors  like  the  nature  of  offence,  the  

circumstances - both extenuating or aggravating, the  

prior criminal record, if any, of the offender, the  

age of the offender, his background, his education,  

his  personal  life,  his  social  adjustment,  the  

emotional and mental condition of the offender, the  

prospects  for  the  rehabilitation  of  the  offender,  

the possibility of his rehabilitation in the  life  

of  community,  the  possibility  of  treatment  or  

training of the offender, the possibility that the  

sentence may serve as a deterrent to crime by the  

offender or by others. After referring to all the  

aforesaid facts, the learned Judge opined as under:  

“3. ………………….. These are factors which have  to be taken into account by the court in  deciding upon the appropriate sentence, and  therefore,  the  legislature  felt  that,  for  this  purpose,  a  separate  stage  should  be  provided after conviction when the court can  hear the accused in regard to these factors  bearing  on  sentence  and  then  pass  proper  sentence  on  the  accused.  Hence  the  new  provision in Section 235(2).”

(para 3, page 195 of the report)

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57. After analyzing the aforesaid aspects, the learned  

Judge posed the question: What is the meaning and  

content  of  expression  “hear  the  accused”?  By  

referring to various aspects and also the opinion  

expressed  by  Law  Commission  in  its  Forty-eighth  

report,  Bhagwati,  J.  (as  His  Lordship  then  was)  

opined that the hearing contemplated under section  

235(2) is not confined merely to oral submissions  

but it is also intended to give an opportunity to  

the prosecution and the accused to place before the  

court facts and material relating to various factors  

bearing on the question of sentence. However, there  

was  a  note  of  caution  that  in  the  name  of  such  

hearing, the court proceedings should not be unduly  

protracted.

58. This  Court  held  in  Santa Singh  (supra) that non- compliance  with  such  hearing  is  not  a  mere  

irregularity curable under section 465 of the 1973

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Code. This Court speaking through Bhagwati, J. (as  

His Lordship then was) emphasized that this legal  

provision  under  our  constitutional  values  has  

acquired new dimension and must reflect “new trends  

in penology and sentencing procedures” so that penal  

laws  can  be  used  as  a  tool  for  reforming  and  

rehabilitating  criminals  and  smoothening  out  the  

uneven texture of the social fabric and not merely  

as a weapon for protecting the hegemony of one class  

over the other (see para 6, page 197 of the report).

59. In  Muniappan v. State of Tamil Nadu [(1981) 3 SCC  11]  Chief  Justice  Chandrachud,  delivering  the  

judgment  again  had  to  consider  the  importance  of  

section  235(2)  and  section  354(3)  Cr.P.C.  in  our  

sentencing procedure. The learned Chief Justice held  

that  the  obligation  to  hear  the  accused  on  the  

question  of  sentence under  section  235(2)  of  1973  

Code is not discharged by putting a formal question  

to  the  accused  as  to  what  he  has  to  say  on  the

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question of sentence. The learned Chief Justice made  

it clear that the Judge must make a genuine effort  

to elicit from the accused all items of information  

which  will  eventually  bear  on  the  question  of  

sentence.  All  such  items  of  information  would  

furnish a clue to the genesis of the crime and the  

motivation  of  the  criminal  are  relevant  and  the  

learned  Chief  Justice  emphasized  that  in  such  an  

exercise, it is the bounden duty of the Judge to  

cast aside the formalities of the Court-scene and  

approach  the  question  of  sentence  from  a  broad  

sociological point of view.

60. The  learned  Chief  Justice  further  said  in  the  

sentencing procedure it is not only the accused but  

the  entire  society  is  at  stake  and  therefore  the  

questions  the  Judge  puts  and  the  answers  accused  

gives  may  be  beyond  narrow  constraints  of  the  

Evidence  Act.  In  the  words  of  the  learned  Chief

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Justice the position of Court in an exercise under  

section 235(2) is as follows:  

“2. ………The Court, while on the question of  sentence,  is  in  an  altogether  different  domain  in  which  facts  and  factors  which  operate are of an entirely different order  than  those  which  come  into  play  on  the  question of conviction….”   

(para 2, page 13 of the report)

61. To the same effect is the judgment of Ahmadi, J. (as  

His Lordship then was) in Allauddin Mian and others  v. State of Bihar [(1989) 3 SCC 5].  Explaining the  purpose of section 235(2), this Court in Allauddin  Mian (supra) held that section 235(2) satisfies a  dual  purpose;  first  of  all  it  satisfies  rules  of  

natural justice by according an opportunity to the  

accused of being heard on the question of sentence.  

Under such sentencing procedure the accused is given  

an  opportunity  to  place  before  the  court  all  

relevant materials having a bearing on the question  

of sentence. The Court opined that it is a salutary  

principle and must be strictly observed and is not a

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matter of mere formality. This Court further held  

that in such hearing exercise the accused should be  

given a real and effective opportunity to place his  

antecedents,  social  and  economic  background  etc.  

before  the  court,  for  the  court  to  take  a  fair  

decision on sentence as otherwise the sentence would  

be vulnerable.

62. The Court therefore opined:-  

“10. …… We think as a general rule the Trial  Courts should after recording the conviction  adjourn the matter to a future date and call  upon both the prosecution as well as the  defence  to  place  the  relevant  material  bearing on the question of sentence before  it and thereafter pronounce the sentence to  be imposed on the offender….”

(para 10, page 21 of the report)

63. Therefore, it is clear from the purpose of section  

235(2) as explained in the aforesaid cases, that the  

object  of  hearing  under  section  235(2)  being  

intrinsically  and  inherently  connected  with  the

39

sentencing  procedure,  the  provision  of  section  

354(3) which calls for recording of special reason  

for awarding death sentence must be read conjointly  

with section 235(2) of 1973 Code.

64. This Court is of the opinion that special reasons  

can  only  be  validly  recorded  if  an  effective  

opportunity  of  hearing  contemplated  under  section  

235(2)  of  Cr.P.C.  is  genuinely  extended  and  is  

allowed to be exercised by the accused who stands  

convicted and is awaiting the sentence.

65. These two provisions do not stand in isolation but  

must  be  construed  as  supplementing  each  other  as  

ensuring  the  constitutional  guarantee  of  a  just,  

fair  and  reasonable  procedure  in  the  exercise  of  

sentencing discretion by the court.

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66. These changes in the sentencing structure reflect  

the “evolving standards of decency” that mark the  

progress  of  a  maturing  democracy  and  which  is  in  

accord with the concept of dignity of the individual  

- one of the core values in our Preamble to the  

Constitution.  In  a  way  these  changes  signify  a  

paradigm shift in our jurisprudence with the gradual  

transition of our legal regime from ‘rule of law’ to  

the ‘due process of law’, to which this Court would  

advert to in the latter part of the judgment.

67. The  main  issues  which  were  considered  in  Bachan  Singh  (supra)  are  indicated  in  para  15  of  the  judgment, which is set out:

“15. The principal questions that fall to be  considered in this case are:

(i) Whether death penalty provided for the  offence of murder in Section 302, Penal Code  is unconstitutional.

(ii) If the answer to the foregoing question  be in the negative, whether the sentencing  procedure provided in Section 354(3) of the  Cr.P.C.,  1973  (Act  2  of  1974)  is  unconstitutional  on  the  ground  that  it

41

invests  the  Court  with  unguided  and  untrammelled  discretion  and  allows  death  sentence  to  be  arbitrarily  or  freakishly  imposed on a person found guilty of murder  or  any  other  capital  offence  punishable  under the Indian Penal Code with death or,  in  the  alternative,  with  imprisonment  for  life.”

68. In upholding the constitutionality of section 302 of  

Indian Penal Code and also the provisions of section  

354(3) of 1973 Code the Constitution Bench in Bachan  

Singh (supra)  considered  the  evolution  of  our  

Constitutional Jurisprudence from various decisions  

of Constitution Bench of this Court in A.K. Gopalan  v. State of Madras (AIR (37) 1950 SC 27) and then  the decisions of this Court in Sakal Papers (P) Ltd.  & ors. v. Union of India (AIR 1962 SC 305), Naresh  Shridhar  Mirajkar v. State  of  Maharashtra  and  another (AIR 1967 SC 1),  Rustom Cavasjee Cooper v.  Union of India [(1970) 1 SCC 248], Maneka Gandhi v.  Union of India and another [(1978) 1 SCC 248] and  several other decisions.

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69. After  considering  all  these  Constitution  Bench  

decisions  of  this  Court,  the  learned  Judges  held  

that in the evolving mosaic of our Constitutional  

Jurisprudence, specially after the decision of this  

Court in  Maneka Gandhi  (supra), Article 21 of the  

Constitution  which  guarantees  life  and  personal  

liberty has to be interpreted differently.

70. Article 21 as enacted in our Constitution reads as  

under:

“No person shall be deprived of his life or  personal  liberty  except  according  to  procedure established by law.”

71. But this Court in Bachan Singh (supra) held that in  

view of the expanded interpretation of Article 21 in  

Maneka Gandhi (supra), it should read as follows:

“136……No  person  shall  be  deprived  of  his  life or personal liberty except according to  fair,  just  and  reasonable  procedure  established by valid law.

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72. In  the  converse  positive  form,  the  expanded  

Article will read as below:

“A person may be deprived of his life or  personal  liberty  in  accordance  with  fair,  just and reasonable procedure established by  valid law.”

 (See para 136 page 730 of the report)

73. This epoch making decision in Maneka Gandhi (supra)  

has substantially infused the concept of due process  

in  our  constitutional  jurisprudence  whenever  the  

court has to deal with a question affecting life and  

liberty of citizens or even a person.

74. Krishna  Iyer,  J.  giving  a  concurring  opinion  in  

Maneka Gandhi (supra) elaborated, in his inimitable  

style, the transition from the phase of rule of law  

to due process of law. The relevant statement of law  

given by the learned Judge is quoted below:

44

“81…….'Procedure established by law', with  its  lethal  potentiality,  will  reduce  life  and liberty to a precarious plaything if we  do  not  ex  necessitate  import  into  those  weighty  words  an  adjectival  rule  of  law,  civilised in its soul, fair in its heart and  fixing  those  imperatives  of  procedural  protection absent which the processual tail  will  wag  the  substantive  head.  Can  the  sacred essence of the human right to secure  which the struggle for liberation, with 'do  or die' patriotism, was launched be sapped  by formalistic and pharisaic prescriptions,  regardless  of  essential  standards?  An  enacted  apparition  is  a  constitutional,  illusion.  Processual  justice  is  writ  patently on Article 21. It is too grave to  be  circumvented  by  a  black  letter  ritual  processed through the legislature.”  

(Para 81 page 337 of the report)

75. Immediately  after  the  decision  in  Maneka  Gandhi  (supra)  another  Constitution  Bench  of  this  Court  

rendered decision in case of  Sunil Batra v. Delhi  Administration  &  ors. [(1978)  4  SCC  494]  specifically acknowledged that even though a clause  

like  the  8th Amendment  of  the  United  States  

Constitution  and  concept  of  ‘due  process’  of  

American  Constitution  is  not  enacted  in  our

45

Constitution text, but after the decision of this  

Court  in  R.C.  Cooper (supra)  and  Maneka  Gandhi  

(supra)  the  consequences  is  the  same.  The  

Constitution  Bench  of  this  Court  in  Sunil  Batra  

(supra) speaking through Krishna Iyer, J held:

“52.True,  our  Constitution  has  no  ‘due  process’ clause or the VIII Amendment; but,  in this branch of law, after Cooper (supra)  and  Maneka Gandhi  (supra), the consequence  is the same.”

76. The Eighth Amendment (1791) to the Constitution of  

United  States  virtually  emanated  from  the  English  

Bill  of  Rights  (1689).   The  text  of  the  Eighth  

Amendment  reads,  “Excessive  bail  shall  not  be  

required, nor excessive fines imposed, nor cruel and  

unusual punishments inflicted.” The English Bill of  

Rights  drafted  a  century  ago  postulates,  “That  

excessive  bail  ought  not  to  be  required,  nor  

excessive  fines  imposed,  nor  cruel  and  unusual  

punishments inflicted.”

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77. Our Constitution does not have a similar provision  

but  after  the  decision  of  this  Court  in  Maneka  Gandhi’s case (supra) jurisprudentially the position  is virtually the same and the fundamental respect  

for  human  dignity  underlying  the  Eighth  Amendment  

has been read into our jurisprudence.    

78. Until  the  decision  was  rendered  in  Maneka  Gandhi  (supra),  Article  21  was  viewed  by  this  Court  as  

rarely embodying the Diceyian concept of rule of law  

that no one can be deprived of his personal liberty  

by an executive action unsupported by law.  If there  

was a law which provided some sort of a procedure it  

was  enough  to  deprive  a  person  of  his  life  or  

personal liberty.  In this connection, if we refer  

to  the  example  given  by  Justice  S.R.  Das  in  his  

judgment  in  A.K.  Gopalan (supra)  that  if  the  law  provided the Bishop of Rochester ‘be boiled in oil’  

it would be valid under Article 21.  But after the

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decision  in  Maneka  Gandhi (supra)  which  marks  a  watershed in the development of constitutional law  

in our country, this Court, for the first time, took  

the view that Article 21 affords protection not only  

against the executive action but also against the  

legislation which deprives a person of his life and  

personal liberty unless the law for deprivation is  

reasonable, just and fair.  And it was held that the  

concept of reasonableness runs like a golden thread  

through the entire fabric of the Constitution and it  

is not enough for the law to provide some semblance  

of  a  procedure.   The  procedure  for  depriving  a  

person  of  his  life  and  personal  liberty  must  be  

eminently  just,  reasonable  and  fair  and  if  

challenged before the Court it is for the Court to  

determine whether such procedure is reasonable, just  

and fair and if the Court finds that it is not so,  

the Court will strike down the same.  

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79. Therefore, ‘law’ as interpreted under Article 21  

by this Court is more than mere ‘lex’.  It implies a  

due process, both procedurally and substantively.   

80. Thus,  the  due  process  concept  and  the  values  of  

Eighth  Amendment  of  the  U.S.  Constitution,  which  

have  been  incorporated  in  our  Constitution,  are  

virtually  articulated  through  the  procedural  

safeguards  of  section  235(2)  read  with  section  

354(3) of 1973 Code.  This marks the maturing of our  

criminal jurisprudence from the stage of rule of law  

to the realm of due process of law by experiencing  

the vicissitudes of a fascinating journey for about  

three decades of judicial decision making by this  

Court  from  A.K.  Gopalan (supra)  to  Maneka  Gandhi  (supra).

81. In  fact  the  Constitution  Bench  in  Bachan  Singh  (supra)  has  construed  the  sentencing  structure  in  

Section 235(2) and 354(3) of 1973 Code through the

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prism of due process concept and only then it upheld  

the constitutionality of death sentence.

82. However, in the impugned judgment, the High Court  

failed  to  appreciate  this  ratio  in  Bachan  Singh  (supra).  In the instant case to confirm the death  

sentence of the appellant, the High Court relied on  

the  judgment  of  this  Court  in  Dayanidhi  Bisoi v.  State  of     Orissa   [(2003)  9  SCC  310],  wherein  the  accused was held guilty of murder of three persons  

of a family comprising husband, wife and their three  

year old daughter. In that case, the accused, who is  

a member of the family of the deceased, committed  

the  criminal  act  for  monetary  benefits  while  the  

deceased were sleeping. In  Dayanidhi Bisoi  (supra)  this  Court,  while  awarding  death  sentence  to  the  

accused, relied on its previous decision in  Ravji  alias Ram Chandra v. State of Rajasthan [(1996) 2  SCC 175] and Surja Ram v. State of Rajasthan [(1996)  6 SCC 271].

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83. In  Ravji  (supra),  a  Division  Bench  of  this  Court  observed that it is only characteristics relating to  

the crime, to the exclusion of the ones relating to  

the criminal, which are relevant for sentencing in  

the criminal trial.  In paragraph 24 at page 187 of  

the report, this Court held:

“24. …..The crimes had been committed with  utmost  cruelty  and  brutality  without  any  provocation, in a calculated manner.  It is  the nature and gravity of the crime but not  the  criminal,  which  are  germane  for  consideration of appropriate punishment in  a criminal trial. The Court will be failing  in its duty if appropriate punishment is not  awarded for a crime which has been committed  not only against the individual victim but  also  against  the  society  to  which  the  criminal and victim belong. The punishment  to  be  awarded  for  a  crime  must  not  be  irrelevant but it should conform to and be  consistent with the atrocity and brutality  with which the crime has been perpetrated,  the enormity of the crime warranting public  abhorrence  and  it  should  “respond  to  the  society's  cry  for  justice  against  the  criminal.”

84. Ravji  (supra) case was followed in as many as six  cases  where  death  sentence  was  imposed.  However,  

this Court in Santosh Kumar Satishbhushan Bariyar v.

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the principles discussed in Bachan Singh’s case. In  Bachan Singh (supra) this Court at paragraph 206 (at  page 750 of the report) sets out certain mitigating  

circumstances which were suggested by Dr. Chitale,  

the  learned  counsel  and  at  paragraph  207  of  the  

report  the  learned  Judge  observed  that  these  are  

undoubtedly relevant circumstances and must be given  

great weight in the determination of sentence. Those  

circumstances are set out hereinbelow:

“206.  Dr.  Chitaley  has  suggested  these  mitigating factors:

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.

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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.”

87. In this connection the submission of the learned  

counsel that the State must by evidence prove that  

the accused does not satisfy conditions No.3 and 4  

above is of great importance as this Court accepted  

that those submissions must be given ‘great weight  

in the determination of sentence’.

88. However,  the  categories  of  mitigating  and  

aggravating  circumstances  are  never  close  and  no  

court  can  give  an  exhaustive  list  of  such  

circumstances.  For  instance,  a  crime  involving  a

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terrorist  attack  may  place  the  case  under  a  

completely different situation.  

89. In the instant case State has failed to show that  

the appellant is a continuing threat to society or  

that he is beyond reform and rehabilitation. On the  

other hand, in paragraph 77 of the impugned judgment  

the High Court observed as follows:

“We have no evidence that the appellant is  incapable of being rehabilitated in society.  We also have no evidence that he is capable  of  being  rehabilitated  in  society.  This  circumstance remains a neutral circumstance.”  

90. It is clear from the aforesaid finding of the High  

Court that there is no evidence to show that the  

accused  is  incapable  of  being  reformed  or  

rehabilitated  in  society  and  the  High  Court  has  

considered the same as a neutral circumstance. In  

our view the High Court was clearly in error. The  

very fact that the accused can be rehabilitated in

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society and is capable of being reformed, since the  

State has not given any evidence to the contrary, is  

certainly  a  mitigating  circumstance  and  which  the  

High Court has failed to take into consideration.  

The  High  Court  has  also  failed  to  take  into  

consideration that the appellant is not a continuing  

threat to society in the absence of any evidence to  

the  contrary.  Therefore,  in  paragraph  78  of  the  

impugned judgment, the High Court, with respect, has  

taken  a  very  narrow  and  a  myopic  view  of  the  

mitigating circumstances about the appellant.  The  

High Court has only considered that the appellant is  

a first time offender and he has a family to look  

after.  We  are,  therefore,  constrained  to  observe  

that  the  High  Court’s  view  of  mitigating  

circumstance has been very truncated and narrow in  

so far as the appellant is concerned.

91. On the other hand, while considering the aggravating  

circumstances, the High Court appears to have been

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substantially influenced with the brutality in the  

manner of committing the crime. It is no doubt that  

the  murder  was  committed  in  this  case  in  a  very  

brutal and inhuman fashion, but that alone cannot  

justify infliction of death penalty. This is held in  

several decisions of this Court. Reference in this  

case may be made to the decision of this Court in  

Dharmendrasinh alias Mansinh Ratansinh v.  State of  Gujarat [(2002)  4  SCC  679]  wherein  the  accused  suspected the character of his wife and under the  

belief  that  his  two  sons  were  not  born  of  him,  

murdered  those  two  innocent  children.  This  Court  

held  that  the  act  of  accused  was  heinous,  

unpardonable  and  condemnable,  but  this  Court  

commuted the death sentence to life sentence inter  

alia  on  the  ground  that  accused  had  no  previous  

criminal  record  and  the  chances  of  repetition  of  

such criminal acts at his hands making the society  

further vulnerable are not apparent.  In coming to  

this conclusion this Court observed:

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“20. …. A number of factors are to be taken  into  account  namely,  the  motive  of  the  crime, the manner of the assault, the impact  of the crime on the society as a whole, the  personality  of  the  accused,  circumstances  and  facts  of  the  case  as  to  whether  the  crime  committed,  has  been  committed  for  satisfying any kind of lust, greed or in  pursuance of anti-social activity or by way  of organized crime, drug-trafficking or the  like. Chances of inflicting the society with  the  similar  criminal  act  that  is  to  say  vulnerability of the members of the society  at the hands of the accused in future and  ultimately  as  held  in  several  cases,  mitigating and aggravating circumstances of  each  case  have  to  be  considered  and  a  balance has to be struck…”

(Para 20, page 695 of the report)

92. Again in Panchhi & ors. v. State of U.P. [(1998) 7  SCC  177]  four  members  of  a  family  comprising  two  

adult  male  and  female,  murdered  four  members  of  

neighbouring  family  comprising  an  adult  male  and  

female, an old lady and a child of five years of age  

in  most  heinous,  brutal  and  diabolical  manner  to  

fulfill their vengeance. This Court while commuting  

their death sentence to life imprisonment observed:-  

“20. ….. No doubt brutally looms large in  the murders in this case particularly of the  old and also the tender-aged child. It may  be that the manner in which the killings  were perpetrated may not by itself show any

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lighter side, but that is not very peculiar  or very special in these killings. Brutality  of  the  manner  in  which  a  murder  was  perpetrated may be a ground but not the sole  criterion for judging whether the case is  one  of  the  "rarest  of  rare  cases"  as  indicated in Bachan Singh's case. In a way  every murder is brutal, and the difference  between one from the other may be on account  of  mitigating  or  aggravating  features  surrounding the murder.”

(para 20, page 183 of the report) (Emphasis supplied)

93. In Haru Ghosh v. State of West Bengal [(2009) 15 SCC  551]  wherein  the  accused,  a  previous  convict  of  

murder and facing a sentence of life imprisonment  

was out on bail when his appeal was pending before  

the  High  Court,  murdered  a  woman  and  her  child  

because  the  deceased  woman’s  husband  asked  the  

accused not to sell illicit liquor in the locality.  

94. The facts in  Haru Ghosh (supra) are that one day  accused entered the house of deceased and started  

strangulating the child.  On the intervention of the  

mother the child was released from the clutches of  

accused.  The  mother  took  the  child  to  a  nearby

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tubewell  and  while  she  was  pouring  water  on  

unconscious child’s face the accused got hold of a  

sharp  weapon  from  a  by-stander  and  assaulted  the  

mother and child to death.

95. This Court observed that this was a dastardly murder  

of two helpless persons for no fault on their part.  

But this Court commuted the death sentence to life  

imprisonment  taking  into  consideration  following  

factors, firstly that there was no pre-meditation in  

the act of the accused.  This was at the spur of the  

moment  as  accused  did  not  come  armed  with  any  

weapon.  Secondly  it  is  unknown  under  what  

circumstances  accused entered the house of deceased  

and what prompted him to assault the boy. Thirdly  

the cruel manner in which the murder was committed  

cannot  be  the  guiding  factor  in  favour  of  death  

sentence. Fourthly the accused himself has two minor  

children.

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96. This Court observed as under:

“39.  ……. the  cruel  manner  in  which  the  murder  was  committed  and  the  subsequent  action  on  the  part  of  the  accused  in  severing  the  parts  of  the  body  of  the  deceased, do not by themselves, become the  guiding  factor  in  favour  of  the  death  sentence”

(para 39, page 564 of the report)

97. In Smt. Triveniben v. State of Gujarat [(1989) 1 SCC  678],  the  Constitution  Bench  of  this  Court,  

following  the  Bachan  Singh ratio,  held  “death  sentence cannot be given if there is any mitigating  

circumstance  in  favour  of  the  accused.  All  

circumstances  of  the  case  should  be  aggravating”  

(Para 25, page 698 of the report).  

98. Unfortunately,  the  High  Court  contrary  to  the  

ratio in the aforesaid cases, fell, in this case,  

into an error by approving the death sentence as it  

was  swayed  by  the  cruel  manner  in  which  the  two  

children were done to death by the appellant. The

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mitigating circumstances in favour of the appellant,  

were not properly considered.

99. The  ratio  in  Bachan  Singh (supra)  has  received  approval  by  the  international  legal  community  and  

has  been  very  favourably  referred  to  by  David  

Pannick in ‘Judicial Review of the Death Penalty:  

Duckworth’ (see page 104-105).

100. Roger Hood and Carolyn Hoyle in their treaties on  

‘The  Death  Penalty’  Fourth  Edition  (Oxford)  have  

also very much appreciated the  Bachan Singh  ratio  (See page 285).

101. The concept of ‘rarest of rare’ which has been  

evolved  in  Bachan  Singh (supra)  by  this  Court  is  also the internationally accepted standard in cases  

of death penalty.

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102.Reference in this connection may also be made to  

the right based approach in exercising discretion in  

death penalty as suggested by Edward Fitzgerald, the  

British  Barrister.  [Edward  Fitzgerald:  The  

Mitigating  Exercise  in  Capital  Cases  in  Death  

Penalty Conference (3-5, June, Barbados: Conference  

Papers and Recommendations]

103.  It has been suggested therein that right approach  

towards exercising discretion in capital cases is to  

start from a strong presumption against the death  

penalty.  It  is  argued  that  ‘the  presence  of  any  

significant  mitigating  factor  justifies  exemption  

from  the  death  penalty  even  in  the  most  gruesome  

cases’ and Fitzgerald argues:

“Such  a  restrictive  approach  can  be  summarized as follows: The normal sentence  should  be  life  imprisonment.  The  death  sentence should only be imposed instead of  the life sentence in the ‘rarest of rare’  cases  where  the  crime  or  crimes  are  of  exceptional heinousness and the individual

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has  no  significant  mitigation  and  is  considered beyond reformation.”  

[Quoted in The Death Penalty: Roger Hood and  Hoyle, 4th Edition Oxford, Page 285]

104.Opposing mandatory death sentence, United Nations  

in  its  interim  report  to  the  General  Assembly  in  

2000 advanced the following opinion:

“The proper application of human rights law- especially  of  its  provision  that  ‘no  one  shall  be arbitrarily deprived of his life’  and  that  ‘no  one  shall  be  subjected  to….cruel, inhuman or degrading….punishment’  – requires weighing factors that will not be  taken  into  account  in  the  process  of  determining whether a defendant is guilty of  committing  a  ‘most  serious  crime’.  As  a  result, these factors can only be taken into  account  in  the  context  of  individualized  sentencing by the judiciary in death penalty  cases…The conclusion, in theory as well as  in  practice,  was  that  respect  for  human  rights  can  be  reliably  ensured  in  death  penalty cases only if the judiciary engages  in case-specific, individualized  sentencing  that  accounts  for  all  of  the  relevant  factors….It  is  clear,  therefore,  that  in  death  penalty  cases,  individualized  sentencing by the judiciary is required to  prevent  cruel,  inhuman  or  degrading  punishment and the arbitrary deprivation of  life.”

[The Death Penalty: Roger Hood and Hoyle,  4th Edition, Oxford, Page 281]

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105. Taking  an  overall  view  of  the  facts  in  these  

appeals and for the reasons discussed above, we hold  

that  death  sentence  cannot  be  inflicted  on  the  

appellant since the dictum of Constitution Bench in  

Bachan Singh (supra) is that the legislative policy  in Section 354(3) of 1973 Code is that for person  

convicted of murder, life imprisonment is the rule  

and death sentence, an exception, and the mitigating  

circumstances  must  be  given  due  consideration.  

Bachan  Singh  (supra)  further  mandates  that  in  considering the question of sentence the Court must  

show a real and abiding concern for the dignity of  

human  life  which  must  postulates  resistance  to  

taking life through law’s instrumentality. Except in  

‘rarest  of  rare  cases’  and  for  ‘special  reasons’  

death sentence cannot be imposed as an alternative  

option to the imposition of life sentence.

106.For the reasons discussed above, we are of the  

view  that  in  the  facts  of  this  case  the  death

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sentence  imposed  by  the  High  Court  cannot  be  

sustained and the death sentence imposed upon the  

appellant  is  substituted  by  the  sentence  of  

imprisonment for life.  

107.The appeals are allowed to the extent indicated  

above. The conviction of the appellant is upheld and  

he is to serve out the life sentence.         

.......................J. (D.K. JAIN)

.......................J. New Delhi (ASOK KUMAR GANGULY) September 28, 2011