REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1478 OF 2005

Santosh Kumar Satishbhushan Bariyar ….. Appellant

Versus

State of Maharashtra ….. Respondent

WITH

CRIMINAL APPEAL NO. 452 OF 2006

State of Maharashtra …. Appellant  

Versus

Sanjeevkumar Mahendraprasad Roy and another …. Respondents

J U D G M E N T

S.B. SINHA, J.

INTRODUCTION

These two appeals arise out of a common judgment of conviction and  

sentence dated 12th August, 2005 passed by the High Court of Judicature at  

Bombay in Confirmation Case No.2 of 2004 and three connected appeals;  

one filed by the State and two by the accused,  whereby and whereunder it  

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confirmed and accepted the reference made to it in terms of Section 366 of  

the  Code  of  Criminal  Procedure,  1973  in  the  case  of  Santoshkumar  

Satishbhushan Bariyar (appellant in Criminal Case No.1478 of 2005), and  

upheld the conviction and sentence of life imprisonment in the case of the  

other accused (respondents in Criminal Appeal No.452 of 2006).

Whereas  Criminal  Appeal  No.1478 of  2005 has  been preferred  by  

Santoshkumar Satishbhushan Bariyar (A1) (hereinafter  referred to as “the  

appellant”), the State has filed Criminal Appeal No.452 of 2006 praying for  

enhancement of sentence for Sanjeevkumar Mahendraprasad Roy (A2) and  

Sanotshkumar Shrijailal Roy (A3).   

Leave in these matters was granted by this Court by orders dated 28th  

October, 2005 and 17th April, 2006 respectively.  

BACKGROUND FACTS

The facts in brief are that the accused were said to have hatched a  

conspiracy  to  abduct  either  one  Abhijeet  Kothari  or  one  Kartikraj  (the  

deceased) and to demand a ransom of Rs. 10 lacs from the victim’s family.  

Kartikraj was the one who was eventually kidnapped. He was working as a  

junior clerk in Central Railways at Pune. Ramraj, his father (PW-49) was, at  

the relevant time, working as Manager in NABARD, Hyderabad.  Santosh  

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Ramraj (PW-50), the younger brother of the deceased was staying with his  

father.  

Santosh  Ramraj  received  a  phone  call  on  8th August,  2001  at  his  

residential  telephone  number  disclosed  by  the  caller,  that  his  brother  

Kartikraj was in his custody.  Ransom for a sum of Rs. 10 lacs was allegedly  

demanded. He was threatened that if the said amount was not paid within 24  

hours then Kartikraj would be killed. The family of the deceased is said to  

have received some more threatening calls thereafter.  Ramraj (PW-49), the  

father of the deceased also talked to the caller and asked him to give them  

time till the next day morning so that he could make arrangements for the  

money.  

Ramraj (PW-49) thereafter talked to his friend Dattatraya Bhandange  

(PW-2) who, at  the relevant time, was working as Manger in NABARD,  

Pune. Bhandange (PW-2) did his best to trace out Kartikraj but failed in his  

attempts.  

A  draft  of  the  First  Information  Report  was  faxed  by  Ramraj  to  

Bhandange’s (PW-2)’s Pune office, requesting him to lodge the same at the  

concerned Police Station.  A photograph of Kartikraj was also sent along.  

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Pursuant thereto, a First Information Report was lodged for offences  

punishable  under  Sections  363  and  387  of  the  Indian  Penal  Code.  The  

investigation  was handed over  to  the  Crime Branch.   Santoshraj  (PW-2)  

informed the Investigating Officer, API Lotlikar on telephone that he had  

again received a phone call  from the kidnappers,  asking him to come to  

Bombay with Rs.10 lacs and a mobile phone. To this API Lotlikar asked  

him to inform the caller that instead of going himself, he would be sending a  

friend of his to Bombay with the money. He told him to tell to the caller that  

the  friend’s  name  was  Sham  Naidu  and  that  his  mobile  number  was  

9822******.  Santoshraj  acted  accordingly.  Kidnappers  thereafter  started  

calling API Lotlikar on his mobile phone thinking him to be Sham Naidu.  

Thus, keeping the kidnappers engaged in one conversation or the other, a  

trap was laid for them at Juhu on 12th August, 2001. Pursuant thereto Kumar  

Gaurav  (PW-1),  the  approver  and  Accused  Nos.2  and  3,  Sanjeevkumar  

Mahendraprasad  Roy  and  Sanothskumar  Shrijailal  Roy  were  arrested.  

Accused  No.1,  Santosh  Kumar  Satishbhushan  Bariyar,  was  arrested  at  

Andheri  Railway  Station.  Whereabouts  of  Kartikraj  was,  however,  not  

disclosed. The accused were thereafter produced before the Police Inspector,  

Dilip Bhaskar Shinde (PW-53) on 13th August,2001 in his office at Pune and  

were subsequently arrested.    

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One  of  the  accused  Kumar  Gaurav,  who  has  since  been  granted  

pardon,  addressed a letter to the Commissioner of Police, Pune City on or  

about 29th October,  2001 stating that Kartikraj had been murdered by the  

accused  on  8th August,  2001.  He  expressed  his  repentance.   He  also  

expressed  his  desire  to  make  a  confession.   He  was  produced  before  

J.M.F.C., Pune at 2.00 p.m. on 31st October, 2001.  He was produced again  

on 1st November, 2001 when he made a statement under Section 164 of the  

Code of Criminal Procedure, which was recorded.  

Upon completion of investigation, a chargesheet was filed whereupon  

cognizance of the offence was taken.  The case was ultimately committed to  

the  Court  of  Sessions  by  the  learned  Magistrate  by  an  order  dated  3rd  

January, 2002.   

Before  the  learned  Sessions  Judge,  Police  Inspector  Dilip  Bhaskar  

Shinde (PW-53) made an application purported to be under Section 307 of  

the Code of Criminal Procedure on or about 21st March, 2002 praying for  

grant  of  pardon to  Kumar  Gaurav  (PW-1).   The  learned  Sessions  Judge  

passed an order on 3rd April, 2002 granting pardon to him.   

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PROSECUTION CASE

As  per  the  statement  of  the  Kumar  Gaurav  (PW-1)  on  which  the  

prosecution principally relies upon, he himself,  Santosh Kumar Roy (A3)  

and Sanjeeb Kumar Roy (A2) were in search of better career prospects and  

all three of them decided to try their luck in the city of Bombay. Since they  

had no place to stay, Sanjeeb Kumar Roy (A2) contacted the appellant who  

was, at the relevant time, living in Pune.  He was able to arrange a temporary  

accommodation for all of them at Kudale Patil Aangan Society in Pune.  

As per Kumar Gaurav (PW-1), they hatched a plan to earn around 10  

to 15 lacs by kidnapping two Santosh Kumar Bariyar’s (A1’s) friends by  

demanding ransom from their families. Appellant is said to be the master  

mind  behind  the  entire  plan;  it  was  he  who  had  floated  the  idea  of  

kidnapping. According to him, he had two friends of his in mind, namely  

Abhijeet Kothari, whose father was a doctor, and Kartikraj, (the deceased)  

whose father was the Manager in NABARD. Both the families, as per the  

appellant, being rich, it was expected that they would be able to get a hefty  

sum of money as ransom upon kidnapping either of them. As per his plan if  

any difficulties  arose they  would kill  the  victim.  He told  them that  they  

would cut the body into pieces and throw them at some place after putting  

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them in different bags. He asked all three, whether they were ready for such  

a plan. All of them consented.

Once all of them agreed, Santosh Kumar Bariyar (A1) asked Kumar  

Gaurav (PW-1) to prepare a list of articles they would require for putting this  

plan of theirs into action. On the list were Hacksaw Blades and a sickle in  

case they had to cut the body. Also on it were ropes for tying up the victim;  

Polythene bags for putting in pieces of the dead body; rexin bags for putting  

in the polythene bags containing the pieces of the dead body; Sim cards for  

using mobile phones to contact the family of the victim and lastly Dettol to  

be used as a deodorant.    

The day thereafter Santosh Kumar Bariyar (A1) also showed them the  

place they would be able to dispose of  the body in case any need arose  

therefor.  On  the  same  day,  in  the  evening,  all  the  accused  shifted  to  

Amarpali Society which was provided to them by an agent of the appellant.  

It was at the said place that they decided to put their plan into action. They  

spent the rest of the day purchasing the items on the list they had prepared  

the night before, requisite amount wherefor was provided by the appellant.

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Thereafter on 6th August, the appellant tried to contact both Abhijeet  

Kothari and Kartikraj. He could not get in touch with Abhijeet Kothari, but  

he was able to procure the contact number of the deceased. He assured all  

three of them that by the next day he would be able to bring Kartikraj to the  

flat. When asked by others, how he could be so sure, he explained that he  

had promised him a party in connection with his marriage and, according to  

him, Kartikraj would never refuse, if he is invited to a party.    

Next  day,  i.e.,  on  the  7th August,  Santosh  Kumar  Bariyar  (A1)  

contacted Kartikraj (the deceased) and convinced him to come to his place.  

In the night he brought Kartikraj to his Apartment. Kartikraj, believing that  

he had been invited to celebrate his friends’ marriage watched movies with  

them till almost midnight. Around midnight the appellant gave a purported  

signal to Sanjeeb Kumar Roy (A2) to execute the plan. Appellant then went  

behind the deceased and placed a sickle on his neck. There after both the  

hands of the deceased were tied with a rope and his mouth with a napkin.  

The deceased was then dragged to the toilet where he was assaulted with  

kicks and blows. All this went on for two hours. Then the accused called up  

the family of the deceased and asked them to pay a ransom of Rs. 10 lacs if  

they wanted to see Kartikraj alive again.   

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However  the  life  of  the  deceased  could  have  been  saved  had  the  

landlord of the apartment who had come to check up on his flat the next  

morning suspected anything foul in the house, but unfortunately he did not.  

Apprehending that they might be caught, Santosh Kumar Bariyar (A1) and  

Kumar Gaurav (PW1) decided that it would no longer be safe to keep the  

deceased alive and that it was in their best interest to kill him. To end his life  

the appellant and Sanjeeb Kumar Roy (A2) tied a rope around his neck and  

pulled at it from both ends. The deceased tried to struggle but his movement  

stopped  after  sometime.  His  dead  body  was  then  dragged  to  the  toilet.  

Santosh Kumar Bariyar (A1) then separated the head of the deceased with  

the hacksaw blade and a sickle. He then kept the head in a polythene bag.  

Thereafter he separated both the hands of the deceased. The hands too were  

kept in polythene bags. He then asked Sanjeeb Kumar Roy (A2) to cut the  

legs  of  the  deceased,  which  he did.  Kumar  Gaurav (PW-1)  and Sanjeeb  

Kumar Roy (A2) packed the legs into separate bags.  

Approximately  two  hours  were  spent  in  cutting  the  body  of  the  

deceased.  They then disposed of these bags containing the body parts of the  

deceased at different places.  They also disposed of the belongings of the  

deceased in a similar fashion.  They thereafter also cleared off all the items  

from the flat.

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The  next  day  they  again  called  up  the  family  of  the  deceased  

demanding ransom from them even though they  had already  killed  their  

victim. They were assured by the family that they would get the ransom  

money but needed some more time to arrange it. It was this greed of theirs  

which ultimately lead to their arrest.  

JUDGMENT OF THE TRIAL JUDGE

The  prosecution  examined  54  witnesses  while  two  witnesses  were  

examined  by  the  defence.   Relying  primarily  on  the  said  evidence,  the  

judgment of conviction and sentence was recorded by the learned Sessions  

Judge.  The learned Sessions Judge convicted accused No.1 of the offences  

punishable  under  Section  302  read  with  Section  120-B  as  also  under  

Sections 364-A read with 120-B of the Indian Penal Code. He was sentenced  

to death.  Accused Nos. 2 and 3 were convicted of the offences punishable  

under Section 302 read with Section 120-B as also under Sections 364-A  

read with 120-B of the Indian Penal Code. They were sentenced to suffer  

rigorous imprisonment for life.  Besides, all the accused were found guilty of  

the offences under Sections 387 read with 120-B ; 201 read with 120-B of  

the Indian Penal Code and Sections 4 and 25 of the Indian Arms Act and  

were sentenced for various terms accordingly.   

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CONTENTIONS RAISED

Mr. Sushil Kumar, learned senior counsel appearing on behalf of the  

appellant in Criminal Appeal No.1478 of 2005, would submit :-

(i) The  courts  below  committed  a  serious  illegality  in  recording  the  

judgment and conviction primarily  on the  basis  of  the  evidence of  

PW-1,  Kumar  Gaurav,  despite  the  fact  that  he  had  retracted  his  

confession, as would appear from his letter dated 6th November, 2001  

(Article B).

(ii) The  evidence  of  learned  Magistrate  (PW-54)  could  not  have  been  

relied  upon  by  the  learned  Sessions  Judge  inasmuch  there  were  

enough materials to show that when the charge sheet was filed on 9th  

November, 2001 none of the accused was produced, during the period  

9.11.2001 and 1.1.2002. Since PW-1 was not produced in Court there  

was no occasion for him to inform the Magistrate that he was not the  

author of Article B.   

(iii) The learned Sessions Judge could not have exercised its jurisdiction  

under Section 307 of the Code of Criminal Procedure having regard to  

the  fact  that  the  requirements  as  contained  in  sub-section  (4)  of  

Section 306 of the Code of Criminal Procedure had not been complied  

with.

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(iv) As grant of pardon to Kumar Gaurav (PW-1) was illegal, his evidence  

could not have been taken into consideration as a witness examined  

on  behalf  of  the  prosecution  and  the  same  should  have  been  

considered to be a statement made by the accused against his other co-

accused only as envisaged under Section 30 of the Indian Evidence  

Act.   

(v) As the prosecution case hinges on the statement  of Kumar Gaurav  

(PW-1) and the circumstantial evidence, whereupon the courts below  

have relied upon being not consistent with guilt of the accused; the  

appellant is entitled to acquittal.    

(vi) In any view of the matter the quality of the evidence adduced by the  

prosecution is such for which the death penalty could not be imposed,  

particularly in view of the fact that the trial court had erroneously held  

that there was no mitigating circumstances therefor.  

The learned counsel for the State, however, supported the impugned  

judgment  as  regards  the  death  penalty  on  the  appellant.  In  support  of  

Criminal Appeal No. 452 of 2006 relating to Sanjeevkumar Mahendraprasad  

Roy  (A2)  and  Sanothskumar  Shrijailal  Roy  (A3)  it  was  argued  that  the  

sentence awarded to them was shockingly inadequate and that the same be  

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enhanced  to  penalty  of  death,  since  the  crime  they  had  committed  falls  

within the purview of ‘rarest of the rare cases’.  

It was urged that Sanjeeb Kumar Roy (A2) and Santosh Kumar Roy  

(A3), being equal party to the crime, having had played similar role in the  

commission  thereof,  they  also  deserved  award  of  death  penalty.  It  was  

furthermore argued that there was not a single mitigating circumstance in  

favour  of  the  accused  to  award  to  them  the  lesser  penalty  of  life  

imprisonment.

QUESTIONS INVOLVED

Two principal questions, therefore, which arise for our consideration  

are :-

(A) Whether  the  learned  Sessions  Judge  acted  illegally  in  granting  

pardon to Kumar Gaurav (PW-1) ; and

(B) Whether the case in hand can be said to be a ‘rarest of rare cases’  

so as to enable the courts below to award the death penalty.

LEGALITY OF THE ORDER GRANTING PARDON

We  shall  first  deal  with  the  order  of  the  learned  Sessions  Judge  

granting pardon to Kumar Gaurav (PW 1).  

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Sections 306 and 307 of the Code of Criminal Procedure, 1973, which  

are relevant for our purpose, read as under:   

“306. Tender of pardon to accomplice :-(1) With  a  view  to  obtaining  the  evidence  of  any  person  supposed  to  have  been  directly  or  indirectly  concerned in or privy to an offence to which this  Section applies, the Chief Judicial Magistrate or a  Metropolitan  Magistrate  at  any  stage  of  the  investigation  or  inquiry  into,  or  the  trial  of,  the  offence,  and  the  Magistrate  of  the  first  class  inquiring into, or trying the offence, at any stage of  the  inquiry  or  trial,  may  tender  pardon  to  such  person on condition of his making a full and true  disclosure  of  the  whole  of  the  circumstances  within his knowledge relative to the offence and to  every other person concerned, whether as principal  or abettor, in the commission thereof.

(2) This Section applies to-- (a)  any  offence  triable  exclusively  by  the  Court of Session or by the Court of a Special  Judge  appointed  under  the  Criminal  Law  Amendment Act, 1952 (46 of 1952); (b)  any  offence  punishable  with  imprisonment  which  may  extend  to  seven  years or with a more severe sentence.  

(3) Every Magistrate who tenders a pardon under  sub- section (1) shall record-

(a) his reasons for so doing (b)  whether  the  tender  was  or  was  not  accepted  by  the  person  to  whom  it  was  made; and  shall,  on  application  made  by  the  accused,  furnish  him with  a  copy  of  such  record free of cost.

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(4)  Every  person  accepting  a  tender  of  pardon  made under sub-section (1)-

(a)  shall  be  examined  as  a  witness  in  the  Court of the Magistrate taking cognizance of  the  offence  and  in  the  subsequent  trial,  if  any; (b)  shall,  unless  he  is  already  on  bail,  be  detained in custody until the termination of  the trial.

(5)  Where  a  person  has  accepted  a  tender  of  pardon made under sub-section (1) and has been  examined  under  sub-section  (4),  the  Magistrate  taking  cognizance  of  the  offence  shall,  without  making any further inquiry in the case-

(a) commit it for trial- (i)  to  the  Court  of  Session  if  the  offence is  triable  exclusively by that  Court  or  if  the  Magistrate  taking  cognizance  is  the  Chief  Judicial  Magistrate ; (ii)  to  a  Court  of  Special  Judge  appointed  under  the  Criminal  Law  Amendment Act, 1952, (46 of 1952),  if the offence is triable exclusively by  that Court ;

(b) in any other case, make over the case to  the Chief Judicial Magistrate who shall try  the case himself.

307. Power to direct tender of pardon :- At any  time  after  commitment  of  a  case  but  before  judgement  is  passed,  the  Court  to  which  the  commitment  is  made  may,  with  a  view  to  obtaining at  the trial  the evidence of any person  supposed  to  have  been  directly  or  indirectly  concerned in, or privy to, any such offence, tender  a pardon on the same condition to such person.”

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Section  306,  thus,  empowers  the  Chief  Judicial  Magistrate  or  a  

Metropolitan Magistrate or a Magistrate of the First class inquiring into or  

trying the offence to tender  a pardon to such person on condition of his  

making a full and true disclosure of the whole of the circumstances within  

his knowledge relating to the offence and to every other person concerned,  

whether  as  principal  or  abettor,  in  the  commission  thereof.   The  said  

provision indisputably applies to the cases triable exclusively by a Court of  

Sessions.

The Magistrate tendering pardon is required to record his reasons for  

so doing and to further record whether the tender was or was not accepted by  

the person to whom it was made.  Sub-section (4) of Section 306 of the Code  

of  Criminal  Procedure  mandates  that  such  a  person  accepting  tender  of  

pardon  must  be  examined  as  a  witness  in  the  trial.   Sub-section  (5)  of  

Section 306 of the Code of Criminal Procedure provides that where a person  

has  accepted  tender  of  pardon made  under  sub-section  (1)  and has  been  

examined under  sub-section  (4),  the  Magistrate  taking  cognizance  of  the  

offence shall commit it for trial, without making any further inquiry in the  

case.   

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Whether the terms “on the same condition” occurring in Section 307  

of the Code of Criminal Procedure refer to sub-section (4) of Section 306  

thereof and as in the instant case apart from the purported statement made by  

Kumar  Gaurav  (PW-1)  under  Section  164  of  the  Code  of  Criminal  

Procedure, which had been retracted, as no other statement had been taken  

from him by the learned Magistrate, the order granting pardon in his favour  

was illegal, is the question.   

In our opinion, the submission of Mr. Sushil Kumar does not merit  

acceptance.    

Sub-section (4) of Section 306 is procedural in nature.  It is necessary  

to be followed only by a Magistrate as he would not have any jurisdiction to  

try the case himself.  The learned Sessions Judge before whom the case is  

committed for trial must be informed as to on what basis pardon had been  

tendered.   

Section 307 does not contain any such condition.  The power of the  

learned Sessions Judge is independent of the provisions contained in Section  

306 thereof.  The condition mentioned in Section 307 refers to the condition  

laid down in sub-section (1) of Section 306, namely that the person in whose  

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favour the pardon has been tendered, will make a full and true disclosure of  

the  whole  of  the  circumstances  within  his  knowledge.   The  power  of  a  

Sessions Court is not hedged with any other condition.  

  The order of learned Sessions Judge dated 3rd April, 2002 shows that  

the learned Judge not only applied his mind on the application (Ext. P-7) for  

grant  of  pardon filed  by  the  Investigating  Officer  but  also  examined the  

appellant by putting relevant questions to him.

The learned Sessions Judge, therefore, did not pass the order dated 3rd  

April, 2002 only on the basis of the purported confessional statement made  

by  Kumar  Gaurav  (PW-1)  on  1st November,  2001.   It  was  not  done  

mechanically.  If in law it was not necessary for the learned Magistrate to  

forward a copy of the confessional statement made by Kumar Gaurav (PW-

1)  under  Section  164 of  the  Code  of  Criminal  Procedure  or  to  record  a  

separate statement of the said witness for the purpose of complying with the  

provisions of Section 306 of the Code of Criminal Procedure, the question as  

to whether he had retracted from his confession or not would not be of much  

relevance as regards exercise of power by the learned Sessions Judge under  

Section 307 of the Code.   

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We may, however, notice that the learned Magistrate in his evidence  

categorically opined that Kumar Gaurav (PW-1) had told him that he had not  

signed the said application retracting his confession.  It may be that the said  

fact  was not borne out  from the judicial  records,  which were sent to the  

learned Sessions Judge with the order of committal,  but then we have no  

reason to disbelieve the statement of the learned Magistrate.     

Strong reliance has been placed by the learned senior counsel upon a  

judgment of this Court in  Rampal Pithwa Rahidas and Others v.  State of  

Maharashtra [1994  Supp  (2)  SCC  73]  and  in  particular  the  following  

passage:

“…We find ourselves unable to place any reliance  on his untrustworthy and unreliable evidence and  in that view of the matter,  we refrain even from  expressing  any  opinion  about  the  effect  of  the  alleged  non-compliance  with  the  provisions  of  Section 306(4) IPC read with Section 307 IPC, as  admittedly after the grant of pardon by the order  dated  24.4.1987,  no  statement  of  Ramcharan  approver was recorded till he appeared at the trial  as PW 49. It is only after the grant of pardon that  the status of an accused is changed into that of a  witness  and  the  law enjoins  upon  the  Courts  to  record the statement of the approver immediately  after  pardon  is  granted  to  him  so  that  he  may  consider  himself  bound  by  that  statement  and  failure to do so at the trial would render him liable  for prosecution. That exercise was not performed  in this case.”

19

It  was  contended that  it  was  obligatory  on  the  part  of  the  learned  

Sessions  Judge  to  comply  with  the  requirements  of  Sub-section  (4)  of  

Section 306 of the Code of Criminal Procedure.  We, with respect, could not  

find that any such proposition of law was laid down in the said judgment as  

such.

A bare  perusal  of  the  said  decision  clearly  goes  to  show that  the  

evidence of approver was found to be wholly untrustworthy and unreliable.  

In that situation, the court refrained itself from expressing any opinion about  

the  effect  of  the  alleged  non-compliance  with  the  provisions  of  Section  

306(4) of the Code of Criminal Procedure read with Section 307 thereof.

In the case before us the pardon granted by the learned Sessions Judge  

was  legal.   Whereas  the  pardon  was  granted  on  3.04.2002,  PW-1  was  

examined on 29.07.2002. Thus, his evidence was recorded only after grant  

of pardon.   

In  Narayan  Chetanram  Chaudhary  and  Another v.  State  of  

Maharashtra [(2000)  8  SCC 457],  a  Division  Bench of  this  Court,  in  an  

almost similar situation, viz., where the confessional statement was kept in a  

sealed cover and wherein also the learned Sessions Judge granted pardon,  

20

declined  to  hold  that  only  because  some delay  had  occurred  in  granting  

pardon, no reliance could be placed thereupon.  It was furthermore opined  

that  what  was  mandatory  was the  examination  of  the  accomplice.   Non-

examination  of  the  approver  at  the  committal  stage  by  the  committing  

Magistrate, if rectified later, would not lead to any prejudice to the accused,  

stating:

“27. There is no legal obligation on the Trial Court  or a right in favour of the accused to insist for the  compliance with the requirement of Section 306(4)  of  the  Cr.PC.  Section  307 provides  a  complete  procedure  for  recording  the  statement  of  an  accomplice  subject  only  to  compliance  of  conditions specified in Sub-section (1) of Section  306. The law mandates the satisfaction of the Court  granting pardon,  that  the  accused would make  a  full and true disclosure of the circumstances within  his knowledge relative to the offence and to every  other  person  concerned,  whether  as  principal  or  abettor,  in  the  commission  thereof.  It  is  not  necessary  to  comply  with  the  requirement  of  Section 306(4) when the pardon is tendered by the  Trial Court. The Trial Court, in this case has taken  all precautions in complying with the provisions of  the  Section  306(1)  before  tendering  pardon  to  accused Raju, who later appeared as PW. 2. We do  not  find any violation  of  law or  illegality  in the  procedure for tendering the pardon and recording  the statement of PW.2.”

21

If  it  is  to be held that  in each and every case pardon can only be  

granted at the initial stage, the power conferred upon the Sessions Judge to  

grant under Section 307 of the Code of Criminal Procedure for all intent and  

purport shall become otiose.  

The  order  of  the  learned  judge  granting  pardon  to  the  Approver,  

Kumar Gaurav is, therefore, legal and valid.

LAW ON DEATH PENALTY

A Constitution  Bench  of  this  Court  in  Bachan  Singh  v.  State  of  

Punjab [(1980) 2  SCC 684] repelled the  challenge of  constitutionality  to  

death  penalty  by  laying  down the  framework  law on  this  point.  Bachan  

Singh (supra) serves as a watershed moment in the history of death penalty  

jurisprudence  in  India  as  it  severed  Indian  judiciary’s  normative  

ambivalence on the subject.  

It was pronounced after the new legislative policy (in form of section  

354(3)  of  the  Code  of  Criminal  Procedure,  1973)  came  into  force.  The  

impact of this legislative change was variously interpreted by this court, and  

this  disparity  in  interpretation  triggered  Bachan  Singh (supra).  One such  

22

case, which had laid down an interpretation of section 354(3) was Rajendra  

Prasad v. State of Uttar Pradesh [(1979) 3 SCC 646].

Bachan Singh court noted that death penalty is acknowledged in the  

constitution. Also the new sentencing procedures were held to be to be in the  

nature of safeguards and as a guidance sentencing. The sentencing procedure  

was taken to be orienting the death punishment towards application in very  

selective situations. On the aforementioned reasoning, the court upheld death  

punishment, substantively and procedurally.   

There are three broad values emerging from Bachan Singh (supra):

1. INDIVIDUALIZED SENTENCING

For  an effective  compliance of  sentencing procedure  under  section  

354(3) and section 235(2) Cr.P.C, sufficient discretion is a pre-condition.  

Strict channeling of discretion would also go against the founding principles  

of sentencing as it will prevent the sentencing court to identify and weigh  

various factors relating to the crime and the criminal  such as culpability,  

impact  on  the  society,  gravity  of  offence,  motive  behind  the  crime  etc.  

23

Bachan Singh     (supra)  also holds the  same view.   It  was held in  Bachan  

Singh (supra) that:  

“173. Thirdly, a standardisation of the sentencing  process  which  leaves  little  room  for  judicial  discretion  to  take  account  of  variations  in  culpability  within  single-offence  category  ceases  to  be judicial.  It  tends  to  sacrifice  justice  at  the  altar  of  blind  uniformity.  Indeed,  there  is  a  real  danger  of  such  mechanical  standardisation  degenerating into a bed of procrustean cruelty. 174. Fourthly,  standardisation  or  sentencing  

discretion is a policy matter which belongs  to  the  sphere  of  legislation.  When  Parliament as a matter of sound legislative  policy, did not deliberately restrict,  control  or standardise the sentencing discretion any  further  than  that  is  encompassed  by  the  broad contours delineated in Section 354(3),  the  court  would  not  by  overleaping  its  bounds  rush  to  do  what  Parliament,  in  its  wisdom, warily did not do.”

The court while discussing Furman v.  Georgia, 408 U.S. 238 (1972)  

in this regard held the following:  

“192. It appears to us that in Gregg v. Georgia and  the companion cases, the Supreme Court of U.S.A.  was  obliged  to  read  down  the  requirements  of  Furman and to accept these broadly worded, loose- ended and not-all-inclusive ‘standards’ because in  the area of sentencing discretion, if it was to retain  its judicial character, exhaustive standardisation or  perfect  regulation  was  neither  feasible  nor  desirable.”

24

In this context,  Saibanna v. State of Karnataka [(2005) 4 SCC 165]  

makes an interesting reading. The accused therein was a life convict. While  

on  parole,  he  committed  murder  of  his  wife  and  daughter.   This  Court  

sentenced  him  to  death  on  a  reasoning,  which  effectively  made  death  

punishment mandatory for the category of offenders serving life sentence,  

opining:

“….A prisoner sentenced to life imprisonment  is  bound to serve the remainder of his life in prison  unless the sentence is commuted or remitted and  that such sentence could not be equated with any  fixed term.  (See Gopal Vinayak Godse vs. State of  Maharashtra [(1961)  3  SCR 440].  If  that  be  so,  there could be no imposition of a second life term  on  the  appellant  before  us  as  it  would  be  a  meaningless exercise. 18. In the teeth of Section 427(2) of the Code of  Criminal Procedure, 1973 it is doubtful whether a  person  already  undergoing  sentence  of  imprisonment for life can be visited with another  term of imprisonment for life to run consecutively  with the previous one.  

Mandatory death punishment (prescribed under section 303 of Indian  

Penal Code) was stuck down as unconstitutional by this court in  Mithu v.  

State of Punjab [AIR 1983 SC 473].  This court observed:

“…If the law provides a mandatory sentence of  death  as  Section  303  of  the  Penal  Code  does,  neither  Section 235(2) nor Section 354(3) of  the  Code  of  Criminal  Procedure  can  possibly  come  

25

into play. If the court has no option save to impose  the sentence of death, it is meaningless to hear the  accused on the question of sentence and it becomes  superfluous to state the reasons for imposing the  sentence of death. The blatant reason for imposing  the sentence of death in such a case is that the law  compels  the  court  to  impose  that  sentence.  The  ratio  of  Bachan  Singh, therefore,  is  that,  death  sentence is Constitutional if it is prescribed as an  alternative sentence for the offence of murder and  if  the  normal  sentence  prescribed  by  law  for  murder is imprisonment for life.”

Justice O. Chinnappa Reddy, J. in his concurring opinion agreed with  

the majority opinion and observed:

“25. Judged in the light shed by Maneka Gandhi  and  Bachan  Singh, it  is  impossible  to  uphold  Section 303 as valid. Section 303 excludes judicial  discretion. The scales of justice are removed from  the hands of the Judge so soon as he pronounces  the  accused  guilty  of  the  offence.  So  final,  so  irrevocable and so irrestitutable [sic irresuscitable]  is the sentence of death that no law which provides  for it without involvement of the judicial mind can  be said to be fair, just and reasonable. Such a law  must  necessarily  be  stigmatised  as  arbitrary  and  oppressive. Section 303 is such a law and it must  go the way of all bad laws. I agree with my Lord  Chief Justice that Section 303, Indian Penal Code,  must be struck down as unconstitutional.”

{See also Reyes v. R. [(2002) UKPC 11 : 12 BHRC 219], Hughes, R.  

v. (Saint Lucia)  [(2002) UKPC 12],  Fox v.  The Queen (2002) 2 AC 284,  

26

Bowe v. The Queen (2006) 1 WLR 1623 and  Coard & Ors. v. The Attorney  

General (Grenada), (2007) UKPC 7}

Saibanna (supra) to that extent is inconsistent with Mithu (supra) and  

Bachan Singh (supra).

2. THRESHOLD OF RAREST OF RARE  

2(A). Sentencing Procedure  

The  analytical  tangle  relating  to  sentencing  procedure  deserves  some  

attention  here.  Sentencing  procedure  deserves  an  articulate  and  judicial  

administration. In this regard, all courts are equally responsible. Sentencing  

process should be so complied with, that enough information is generated to  

objectively inform the selection of penalty. The selection of penalty must not  

require a judge to reflect on his/her personal perception of crime. In Swamy  

Shraddananda @ Murali Manohar Mishra v. State of Karantaka [2008 (10)  

SCALE  669],  the  court  notes  that  the  awarding  of  sentence  of  death  

“depends a good deal on the personal predilection of the judges constituting  

the bench.” This is a serious admission on the part of this court. In so far as  

27

this aspect is considered, there is inconsistency in how Bachan Singh (supra)  

has  been  implemented,  as  Bachan  Singh (supra)  mandated  principled  

sentencing and not judge centric sentencing.  

There are two sides of the debate. It is accepted that  rarest of rare  

case is to be determined in the facts and circumstance of a given case and  

there is no hard and fast rule for that purpose. There are no strict guidelines.  

But a sentencing procedure is suggested. This procedure is in the nature of  

safeguards  and  has  an  overarching  embrace  of  rarest  of  rare dictum.  

Therefore, it is to be read with Article 21 and 14.

Pre-sentence Hearing and “Special Reasons”

Under section 235(2) and 354 (3) of the Criminal Procedure Code,  

there is a mandate as to a full fledged bifurcated hearing and recording of  

“special reasons” if the court inclines to award death penalty. In the specific  

backdrop of sentencing in capital punishment, and that the matter attracts  

constitutional  prescription in full  force, it  is incumbent on the sentencing  

court  to  oversee  comprehensive  compliance  to  both  the  provisions.  A  

scrupulous compliance of both provisions is necessary such that an informed  

selection  of  sentence  could  be  based  on  the  information  collected  and  

28

collated at this stage. Please see Santa Singh v. State of Punjab, [AIR 1956  

SC 526],  Malkiat  Singh  and  Ors.  v.  State  of  Punjab,  [(1991)4SCC341],  

Allaudin Mian v. State of Bihar, [AIR 1989 SC 1456],  Muniappan v. State  

of  Tamil  Nadu, [(  1981  )  3  SCC  11],  Jumman  Khan v.  State  of  U.P,  

[(1991)1SCC752], Anshad and Ors. v. State of Karnataka, [(1994)4SCC381]  

on this.  

Nature of Information to be Collated at Pre-sentence Hearing

At  this  stage,  Bachan  Singh (supra)  informs  the  content  of  the  

sentencing  hearing.  The  court  must  play  a  proactive  role  to  record  all  

relevant information at his stage. Some of the information relating to crime  

can  be  culled  out  from  the  phase  prior  to  sentencing  hearing.  This  

information would include aspects relating to the nature, motive and impact  

of crime, culpability of convict etc. Quality of evidence adduced is also a  

relevant factor. For instance, extent of reliance on circumstantial evidence or  

child witness plays an important role in the sentencing analysis.  

But  what  is  sorely  lacking,  in  most  capital  sentencing  cases,  is  

information relating to characteristics and socio-economic background of the  

29

offender.  This  issue  was  also  raised  in  the  48th report  of  the  Law  

Commission.  Circumstances  which  may  not  have  been  pertinent  in  

conviction  can  also  play  an  important  role  in  the  selection  of  sentence.  

Objective analysis of the probability that the accused can be reformed and  

rehabilitated can be one such illustration. In this context, guideline no. 4 in  

the list of Mitigating Circumstances as borne out by Bachan Singh (supra) is  

relevant. The court held:

(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.

In fine, Bachan Singh (supra) mandated identification of aggravating and  

mitigating circumstance relating to crime and the convict to be collected in  

the sentencing hearing.  

2(B) Nature of Content of   Rarest of rare   Dictum    

Rarest of rare dictum breathes life in “special reasons” under section  

354(3).  In  this  context,  Bachan  Singh (supra)  laid  down  a  fundamental  

threshold in the following terms:  

30

“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.”

An analytical  reading  of  this  formulation  would reveal  it  to  be an  

authoritative  negative  precept.  “Rarest  of  rare cases”  is  an  exceptionally  

narrow  opening  provided  in  the  domain  of  this  negative  precept.   This  

opening  is  also  qualified  by  another  condition  in  form  of  “when  the  

alternative option is unquestionably foreclosed”.  Thus, in essence, rarest of   

rare dictum  imposes  a  wide-ranging  embargo  on  award  of  death  

punishment, which can only be revoked if the facts of the case successfully  

satisfy double qualification enumerated below:  

1. that the case belongs to the rarest of rare category

2. and the alternative option of life imprisonment will just not suffice in the  

facts of the case  

Rarest of rare dictum serves as a guideline in enforcing section 354(3)  

and  entrenches  the  policy  that  life  imprisonment  is  the  rule  and  death  

punishment  is  an  exception.  It  is  a  settled  law  of  interpretation  that  

exceptions are to be construed narrowly. That being the case, the rarest of   

rare dictum places an extraordinary burden on the court, in case it selects  

31

death  punishment  as  the  favoured  penalty,  to  carry  out  an  objective  

assessment of facts to satisfy the exceptions ingrained in the rarest of rare  

dictum.  The background analysis  leading  to  the  conclusion  that  the  case  

belongs  to  rarest  of  rare category  must  conform to  highest  standards  of  

judicial  rigor  and  thoroughness  as  the  norm  under  analysis  is  an  

exceptionally narrow exception.  

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.  It was in this context noted:

“The expression “special reasons” in the context of  this  provision,  obviously  means  “exceptional  reasons”  founded  on  the  exceptionally  grave  circumstances of the particular case relating to the  crime as well as the criminal”

Curiously in Ravji alias Ram Chandra v. State of Rajasthan, [(1996) 2  

SCC 175] this court 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, stating:  

“…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  

32

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”...”

We are not oblivious that this case has been followed in at least 6  

decisions of this court in which death punishment has been awarded in last 9  

years,  but,  in  our  opinion,  it  was  rendered per  incuriam.   Bachan  Singh  

(supra) specifically noted the following on this point:

“…The present legislative policy discernible from  Section 235(2) read with Section 354(3) is that in  fixing  the  degree  of  punishment  or  making  the  choice of sentence for various offences, including  one under Section 302 of the Penal Code, the court  should not confine its consideration “principally”  or  merely to the circumstances connected with  the  particular  crime,  but  also  give  due  consideration  to  the  circumstances  of  the  criminal”

Shivaji  @  Dadya  Shankar  Alhat v. The  State  of  Maharashtra,  

[AIR2009SC56],  Mohan  Anna  Chavan v. State  of  Maharashtra  

33

[(2008)11SCC113],  Bantu v. The State of U.P., [(2008)11SCC113],  Surja  

Ram v. State of Rajasthan, [(1996)6SCC271],  Dayanidhi Bisoi v. State of  

Orissa,  [(2003)9SCC310],  State  of U.P. v.  Sattan @ Satyendra  and Ors.,  

[2009(3)SCALE394]  are the decisions where  Ravji Rao (supra) has been  

followed.  It does not appear that this court has considered any mitigating  

circumstance or a circumstance relating to criminal at the sentencing phase  

in most of these cases.  It is apparent that  Ravji Rao (supra) has not only  

been considered but also relied upon as authority on the point that in heinous  

crimes, circumstances relating to criminal are not pertinent.  

2(B) Alternative Option is foreclosed

Another  aspect  of  rarest  of  rare doctrine  which  needs  serious  

consideration is interpretation of latter part of the dictum – “that ought not to  

be done save in the  rarest  of  rare cases  when the  alternative option is  

unquestionably foreclosed.” Bachan Singh (supra) suggested selection of  

death punishment as the penalty of last resort when, alternative punishment  

of life imprisonment will be futile and serves no purpose. death punishment,  

as  will  be discussed in detail  a  little  later,  qualitatively  stands on a  very  

34

different footing from other types of punishments. It is unique in its total  

irrevocability.  

Incarceration,  life  or  otherwise,  potentially  serves  more  than  one  

sentencing aims. Deterrence, incapacitation, rehabilitation and retribution –  

all ends are capable to be furthered in different degrees, by calibrating this  

punishment in light of the overarching penal policy. But the same does not  

hold true for the death penalty.  It is unique in its absolute rejection of the  

potential  of  convict  to  rehabilitate  and  reform.  It  extinguishes  life  and  

thereby terminates the being, therefore puts an end anything to do with the  

life. This is the big difference between two punishments.  Before imposing  

death penalty, therefore, it is imperative to consider the same.  

Rarest  of  rare dictum,  as  discussed  above,  hints  at  this  difference  

between  death  punishment  and  the  alternative  punishment  of  life  

imprisonment.  The relevant question here would be to determine whether  

life imprisonment as a punishment will be pointless and completely devoid  

of reason in the facts and circumstances of the case? 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  

35

the second exception 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. This analysis can only be done with  

rigor when the court focuses on the circumstances relating to the criminal,  

along  with  other  circumstances.  This  is  not  an  easy  conclusion  to  be  

deciphered, but Bachan Singh (supra) sets the bar very high by introduction  

of Rarest of rare doctrine.  

In  Panchhi v.  State  of  U.P., [(1998)  7  SCC 177],  this  Court  also  

elucidates on “when the alternative option is foreclosed” benchmark in the  

following terms:

16. When the Constitution Bench of this Court,  by a majority, upheld the constitutional validity of  death sentence in Bachan Singh v. State of Punjab  this  Court  took  particular  care  to  say  that  death  sentence  shall  not  normally  be  awarded  for  the  offence of murder and that it must be confined to  the rarest of rare cases when the alternative option  is  foreclosed.  In  other  words,  the  Constitution  Bench did not find death sentence valid in all cases  except  in  the aforesaid  freaks wherein  the lesser  sentence  would  be,  by  any  account,  wholly  inadequate. In  Machhi Singh v.  State of Punjab a  three-Judge Bench of  this  Court  while  following  the ratio in  Bachan Singh case laid down certain  guidelines among which the following is relevant  in the present case: (SCC p. 489, para 38)

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“(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.”

In Bachan Singh (supra), it was stated:

“206. Dr  Chitale  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.  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  

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said  defect  impaired  his  capacity  to  appreciate the criminality of his conduct.

207. We will do no more than to say that these  are undoubtedly relevant circumstances and  must  be  given  great  weight  in  the  determination of sentence.”

2(C) Role and Responsibility of Courts

Bachan Singh (supra) while enunciating  rarest of rare doctrine, did  

not deal with the role and responsibility of sentencing court and the appellate  

court  separately.  For  that  matter,  this  court  did  not  specify  any  review  

standards for High Court and the Supreme Court. In that event, all courts, be  

it trial court, High Court or this court, are duty bound to ensure that the ratio  

laid  down  therein  is  scrupulously  followed.  Same  standard  of  rigor  and  

fairness are to be followed by the courts. If anything, inverse pyramid of  

responsibility is applicable in death penalty cases.  

In  State  of  Maharashtra v.  Sindhi, [(1975)  1  SCC 647]  this  Court  

reiterated,  with  emphasis,  that  while  dealing  with  a  reference  for  

confirmation  of  a  sentence  of  death,  the  High  Court  must  consider  the  

proceedings in all their aspects, reappraise, reassess and reconsider the entire  

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facts and law and, if necessary, after taking additional evidence, come to its  

own conclusions on the material on record in regard to the conviction of the  

accused  (and  the  sentence)  independently  of  the  view  expressed  by  the  

Sessions Judge.

2(D) Sentencing Justifications in Heinous Crimes

It has been observed, generally and more specifically in the context of  

death punishment, that sentencing is the biggest casualty in crimes of brutal  

and heinous nature. Our capital sentencing jurisprudence is thin in the sense  

that there is very little objective discussion on aggravating and mitigating  

circumstances. In most such cases, courts have only been considering the  

brutality of crime index. There may be other factors which may not have  

been recorded.

We must also point out, in this context, that there is no consensus in  

the court  on the use of “social  necessity”  as a  sole justification in death  

punishment matters. The test which emanates from Bachan Singh (supra) in  

clear terms is that the courts must engage in an analysis of aggravating and  

mitigating circumstances with an open mind, relating both to crime and the  

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criminal, irrespective of the gravity or nature of crime under consideration.  

A  dispassionate  analysis,  on  the  aforementioned  counts,  is  a  must.  The  

courts while adjudging on life and death must ensure that rigor and fairness  

are given primacy over sentiments and emotions.   

In Panchhi (supra), the court downplayed the heinous nature of crime  

and relied on mitigating circumstances in the final opinion. The court held:

“20. We have extracted the above reasons of the  two courts only to point out that it is the savagery  or brutal  manner in which the killers perpetrated  the  acts  on the victims including one little  child  which  had  persuaded  the  two  courts  to  choose  death  sentence  for  the  four  persons.  No  doubt  brutality  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 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 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.”

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In  Vashram Narshibhai  Rajpara v.  State  of Gujarat [(2002) 9 SCC  

168],  this court relied on the dictum of Panchhi and further explained the  

approach:

“….As to what  category a  particular  case would  fall  depends,  invariably on varying facts  of  each  case and no absolute rule for invariable application  or yardstick as a ready reckoner can be formulated.  In  Panchhi v.  State of U.P. it has been observed  that  the  brutality  of  the  manner  in  which  the  murder was perpetrated may not be the sole ground  for judging whether the case is one of the “rarest   of  rare cases”,  as  indicated  in  Bachan  Singh v.  State of Punjab and that every murder being per se  brutal,  the distinguishing factors should really be  the mitigating or aggravating features surrounding  the  murder.  The  intensity  of  bitterness,  which  prevailed,  and  the  escalation  of  simmering  thoughts  into  a  thirst  for  revenge  or  retaliation  were held to be also a relevant factor.”

This court also gave primacy to mitigating circumstances in the final  

analysis:

“10. Considering the facts of the case presented  before  us,  it  is  on  evidence  that  despite  his  economic  condition  and  earnest  attempt  to  purchase a house for the family after raising loans,  the  wife  and  daughters  were  stated  to  be  not  pleased and were engaging in quarrels constantly  with  the  appellant.  Though  they  were  all  living  together  the  continuous  harassment  and  constant  nagging could have very well affected his mental  

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balance and such sustained provocation could have  reached a boiling point resulting in the dastardly  act.  As  noticed  even  by  the  High  Court  the  appellant though hailing from a poor family had no  criminal  background  and  it  could  not  be  reasonably  postulated  that  he  will  not  get  rehabilitated or that he would be a menace to the  society. The boy of tender age would also once for  all be deprived of the parental protection. Keeping  in view all these aspects, in our view, it could not  be  said  that  the  imposition  of  life  imprisonment  would not adequately meet the requirements of the  case  or  that  only  an  imposition  of  the  extreme  punishment  alone  would  do  real  or  effective  justice.  Consequently,  we direct  the modification  of  the  sentence  of  death  into  one  of  rigorous  imprisonment  for  life,  by  partly  allowing  the  appeal to that extent. In other respects the appeal  shall stand dismissed. The appellant shall undergo  the remaining period of sentence as above.”

In Om Prakash v. State of Haryana, [(1999) 3 SCC 19], K.T. Thomas,  

J.  deliberated on the apparent  tension between responding to “cry of  the  

society”  and  meeting  the  Bachan  Singh (supra)  dictum of  balancing  the  

“mitigating and aggravating circumstances”. The court was of the view that  

the sentencing court is bound by  Bachan Singh (supra) and not in specific  

terms to the incoherent and fluid responses of society:  

7. It is true that court must respond to the cry  of  the  society  and  to  settle  what  would  be  a  deterrent punishment for an abominable crime. It is  

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equally true  that  a large number of criminals  go  unpunished  thereby  increasing  criminals  in  the  society and law losing its deterrent effect. It is also  a truism as observed in the case of State of M.P. v.  Shyamsunder  Trivedi [SCC  at  p.273]  that  the  exaggerated adherence to and insistence upon the  establishment  of  proof  beyond  every  reasonable  doubt,  by  the  prosecution,  ignoring  the  ground  realities,  the  fact  situation  and  the  peculiar  circumstances  of  a  given  case  often  results  in  miscarriage  of  justice  and  makes  the  justice  delivery system a suspect; in the ultimate analysis,  the society suffers and a criminal gets encouraged.  Sometimes  it  is  stated  that  only  rights  of  the  criminals  are  kept  in  mind,  the  victims  are  forgotten.  Despite  this  it  should be kept  in mind  that while imposing the rarest of rare punishment,  i.e.,  death  penalty,  the  court  must  balance  the  mitigating  and  aggravating  circumstances  of  the  crime  and  it  would  depend  upon  particular  and  peculiar facts and circumstances of each case.”

In Dharmendrasinh v. State of Gujarat, [(2002) 4 SCC 679], the court  

acknowledged  that  the  crime  committed  was  “no  doubt  heinous  and  

unpardonable” and that two innocent children lost their lives for no fault of  

their, but the court chose to give force to mitigating circumstances in the  

following terms:

“The offence was obviously not committed for lust  of power or otherwise or with a view to grab any  property  nor  in  pursuance  of  any  organized  criminal  or  anti-social  activity.  Chances  of  repetition  of  such  criminal  acts  at  his  hands  

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making the society further vulnerable are also not  apparent. He had no previous criminal record.”

The court also stated the law in the following terms:

“20. Every murder is a heinous crime. Apart from  personal implications, it is also a crime against the  society but in every case of murder death penalty  is  not  to  be  awarded.  Under  the  present  legal  position, imprisonment for life is the normal rule  for  punishing  crime  of  murder  and  sentence  of  death, as held in different cases referred to above,  would be awarded only in the rarest of rare cases.  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  a  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.  The  learned  State  counsel  as  indicated  earlier  has  already indicated the aggravating circumstances by  reason of which it has been vehemently urged that  sentence of death deserves to be confirmed.”

Whether primacy should be accorded to aggravating circumstances or  

mitigating circumstances is not the question. Court is duty bound by virtue  

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of  Bachan Singh (supra) to equally consider both and then to arrive at a  

conclusion as to respective weights to be accorded. We are also bound by  

the spirit of Article 14 and Article 21 which forces us to adopt a principled  

approach to sentencing. This overarching policy flowing from Bachan Singh  

(supra)  applies  to heinous crimes as much as it  applies  to relatively  less  

brutal murders. The court in this regard held:

“Judges should never be bloodthirsty. Hanging of  murderers has never been too good for them. Facts  and  figures  albeit  incomplete,  furnished  by  the  Union of India, show that in the past Courts have  inflicted  the  extreme  penalty  with  extreme  infrequency -  a  fact  which  attests  to  the  caution  and compassion which they have always brought  to  bear  on  the  exercise  of  their  sentencing  discretion  in  so  grave  a  matter.  It  is,  therefore,  imperative to voice the concern that courts, aided  by the broad illustrative guidelines indicated by us,  will discharge the onerous function with evermore  scrupulous  care  and  humane  concern,  directed  along the highroad of legislative policy outlined in  Section 354(3), viz., that for persons convicted of  murder,  life  imprisonment  is  the  rule  and  death  sentence an exception.”

2(E). Public Opinion in Capital Sentencing  

It is also to be pointed out that 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  

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extraneous to conviction as also sentencing, at  least  in capital  sentencing  

according to the mandate of Bachan Singh (supra).  

Rarest of rare policy and legislative policy on death punishment may  

not be essentially tuned to public opinion. Even if presume that the general  

populace favours a liberal DP policy, although there is no evidence to this  

effect, we can not take note of it. We are governed by the dictum of Bachan  

Singh (supra) according to which life imprisonment is the rule and death  

punishment is an exception.  We are also governed by the Constitution of  

India.  Article  14  and  21  are  constitutional  safeguards  and  define  the  

framework  for  state  in  its  functions,  including  penal  functions.  They  

introduce  values  of  institutional  propriety,  in  terms  of  fairness,  

reasonableness and equal treatment challenge with respect to procedure to be  

invoked  by  the  state  in  its  dealings  with  people  in  various  capacities,  

including as a convict. The position is, if the state is precariously placed to  

administer a policy within the confines of Article 21 and 14, it should be  

applied most sparingly. This view flows from Bachan Singh (supra) and it  

this light, we are afraid that Constitution does not permit us to take a re-look  

on the capital punishment policy and meet society’s cry for justice through  

this instrument.   

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The fact that we are here dealing with safeguards entrenched in the  

Constitution should materially change the way we look for reasons while  

awarding the death punishment. The arguments which may be relevant for  

sentencing with respect to various other punishments may cease to apply in  

light of the constitutional safeguards which come into operation when the  

question relates to extinguishment of life. If there are two considerations, the  

one which has a constitutional origin shall be favoured.  

An  inherent  problem  with  consideration  of  public  opinion  is  its  

inarticulate state. Bachan Singh (supra) noted that judges are ill-equipped to  

capture public opinion:

“125. Incidentally, the rejection by the people of  the approach adopted by the two learned Judges in  Furman,  furnishes  proof  of  the  fact  that  judicial  opinion  does  not  necessarily  reflect  the  moral  attitudes of the people. At the same time, it  is a  reminder  that  Judges  should  not  take  upon  themselves the responsibility of becoming oracles  or  spokesmen  of  public  opinion:  Not  being  representatives of the people, it is often better, as a  matter of judicial restraint, to leave the function of  assessing  public  opinion  to  the  chosen  representatives  of  the  people  in  the  legislature  concerned.

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…"The  highest  judicial  duty  is  to  recognise  the  limits  on  judicial  power  and  to  permit  the  democratic processes to deal with matters falling  outside  of  those  limits."  As  Judges,  we have  to  resist  the temptation to substitute our own value  choices  for  the  will  of  the  people.  Since  substituted.  judicial  "made-to-order*  standards,  howsoever  painstakingly  made,  do  not  bear  the  people's imprimatur, they may not have the same  authenticity  and efficacy as the  silent  zones  and  green belts designedly marked out and left  open  by Parliament in its legislative planning for fair- play  of  judicial  discretion  to  take  care  of  the  variable,  unpredictable  circumstances  of  the  individual  cases,  relevant  to  individualised  sentencing.  When  Judges,  acting  individually  or  collectively,  in  their  benign  anxiety  to  do  what  they  think  is  morally  good  for  the  people,  take  upon  themselves  the  responsibility  of  setting;  down  social  norms  of  conduct,  there  is  every  danger,  despite  their  effort  to  make  a  rational  guess of the notions of right and wrong prevailing  in  the  community  at  large  and  despite  their  intention to abide by the dictates of mere reason,  that they might write their own peculiar view or  personal  predilection  into  the  law,  sincerely  mistaking that changeling for what they perceive  to  be  the  Community  ethic.  The  perception  of  'community'  standards  or  ethics  may  very  from  Judge to Judge..”

Justice  Powell's  dissent  in  Furman (supra)  also  bears  repetition  in  this  

regard:  

"But however one may assess amorphous ebb and  flow of  public  opinion generally  on this  volatile  issue, this type of inquiry lies at the periphery not  the  core  of  the  judicial  process  in  constitutional  

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cases.  The  assessment  of  popular  opinion  is  essentially  a  legislative,  and  not  a  judicial,  function."

The constitutional role of the judiciary also mandates taking a perspective on  

individual rights at a higher pedestal than majoritarian aspirations. To that  

extent we play a countermajoritarian role. And this part of debate is not only  

relevant in the annals of judicial review, but also to criminal jurisprudence.  

Justice Jackson in West Virginia State Board of Education v. Barnette, [319  

U.S. 624 (1943)] also opined on similar lines:

"The  very  purpose  of  a  bill  of  rights  was  to  withdraw certain subjects from the vicissitudes of  political  controversy,  to  place  them  beyond  the  reach of  majorities  and officials  and to  establish  them as legal principles to be applied by the courts.  One's  right  to  life,  liberty,  and  property,  to  free  speech,  a  free  press,  freedom  of  worship  and  assembly and other fundamental rights may not be  submitted to vote; they depend on the outcome of  no elections."

Public  Opinion  may  also  run  counter  to  the  Rule  of  law  and  

constitutionalism. Bhagalpur Blinding case or the recent spate of attacks on  

right to trial of the accused in the Bombay Blast Case are recent examples.  

We are also not oblivious to the danger of capital sentencing becoming a  

spectacle in media. If media trial is a possibility, sentencing by media can  

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not  be  ruled  out.  Andrew Ashworth,  a  leading  academic  in  the  field  of  

sentencing,  who  has  been  at  the  center  of  sentencing  reforms  in  U.K.,  

educates us of the problems in factoring in public opinion in the sentencing.  

He  (with  Michael  Hough),  observes  in  an  article,  Sentencing  and  the  

Climate of Opinion (1996, Criminal Law Review):  

“The views of sentencing held by people  outside  the criminal justice system-- "the general public"--will  always  be  important  even  if  they  should  not  be  determinative in court.  Unfortunately,  the concept of  public  opinion in  relation  to  sentencing practices  is  often employed in a superficial or simplistic way. In  this  short  article  we  have  identified  two  major  difficulties with the use of the concept. First, members  of  the  public  have  insufficient  knowledge  of  actual  sentencing practices. Second, there is a significant but  much-neglected distinction between people's sweeping  impressions of sentencing and their views in relation  to particular cases of which they know the facts. When  it is proclaimed that the public think the courts are too  lenient, both these difficulties are usually suppressed.

To construct  sentencing policy on this flawed and  partial  notion  of  public  opinion is  irresponsible.  Certainly,  the  argument  is  hard  to  resist  that  public  confidence in the law must be maintained.  It  is also  hard to resist the proposition that public confidence in  sentencing is low and probably falling. However, since  the causes of this lie not in sentencing practice but in  misinformation and misunderstanding, and (arguably)  in  factors  only  distantly  related  to  criminal  justice,  ratcheting up the sentencing tariff is hardly a rational  way of regaining public confidence.

This is not to deny that there is political capital to  be  made,  at  least  in  the  short  term,  by  espousing  

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sentencing policies which have the trappings of tough,  decisive  action.  However,  the  underlying  source  of  public  cynicism  will  not  have  been  addressed;  and  once  politicians  embark  on  this  route,  they  may  be  committing  themselves  long-term  to  a  treadmill  of  toughness,  "decisiveness",  and  high  public  expenditure. The political costs of withdrawing from  tough policies, once embarked on, may be too high for  politicians  of  any  hue  to  contemplate.  The  United  States serves as an example.  

If  the  source  of  falling  public  confidence  in  sentencing lies  in  lack  of  knowledge  and  understanding,  the  obvious  corrective  policy  is  to  explain and to educate, rather than to adapt sentencing  policy to fit a flawed conception of public opinion. But  who  should  be  the  target  of  such  explanation  and  education? We have serious doubts whether attempts  to  reach  the  ordinary  citizen  directly  will  have  any  impact at all. On the other hand, we think it feasible,  within  limits,  to  educate  those  who  shape  public  opinion.  Newspaper  and  television  journalists,  for  example, responded well to the initiatives in the 1980s  intended to curb the reporting of crime in ways that  needlessly  fuelled fear  of  crime.  A similar  initiative  should now be mounted in relation to sentencing.”

Capital sentencing is one such field where the safeguards continuously take  

strength  from the  Constitution,  and on that  end we are  of  the  view that  

public opinion does not have any role to play. In fact, the case where there is  

overwhelming public opinion favouring death penalty would be an acid test  

of the constitutional propriety of capital sentencing process.  

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3. PRINCIPLED SENTENCING

3(A). Mandate of Bachan Singh (supra) on Value of Precedents  

This  court  laid  down  rarest  of  rare dictum  therein  and  thereby  

endorsed a broad sentencing threshold. It has been interpreted by courts in  

various ways.  

It is important to note here that principled application of rarest of rare  

dictum  does  not  come  in  the  way  of  individualized  sentencing.  With  

necessary room for sentencing, consistency has to be achieved in the manner  

in which rarest of rare dictum has to be applied by courts.  

Bachan Singh (supra) expressly barred one time enunciation of minute  

guidelines through a judicial verdict. The court held that only executive is  

competent  to  bring  in  detailed  guidelines  to  regulate  discretion.  On  this  

count judicial restraint was advocated. But at the same time, it actively relied  

on  judicial  precedent  in  disciplining  sentencing  discretion  to  repel  the  

argument  of  arbitrariness  and  Article  14  challenge.  An  embargo  on  

introduction of judicial guidelines was put therein but organic evolution of  

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set  of  principles  on sentencing through judicial  pronouncements  was  not  

ruled out. This is how precedent aids development of law in any branch of  

law and capital sentencing can not be an exception to this.  

Sentencing  discretion  is  also  a  kind  of  discretion  and  is  shall  be  

exercised judicially in light of the precedents.  

It observes that the superior courts must correct wrong application of  

section 302. It is very obvious that appellate courts can not discharge review  

function without taking aid of established principles. In Jagmohan Singh v.  

State of U.P., [(1973) 1 SCC 20], the Court’s observation in this context was  

subsequently followed noting:  

“…The impossibility of laying down standards is  at the very core of the criminal law as administered  in India which invests the judges with a very wide  discretion  in  the  matter  of  fixing  the  degree  of  punishment.  The  discretion  in  the  matter  of  sentence  is,  as  already  pointed  out,  liable  to  be  corrected  by  superior  courts.  Laying  down  of  standards  to  the  limited  extent  possible  as  was  done in the Model Judicial Code would not serve  the purpose.  The exercise of judicial  discretion  on  well-recognised  principles  is,  in  the  final  analysis,  the safest possible  safeguards for the  accused.”

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Bachan Singh (supra) elaborated on “well recognized principles”  in  

the following terms:  

“197. In  Jagmohan,  this Court had held that this  sentencing discretion is to be exercised judicially  on well  recognised principles,  after  balancing all  the  aggravating  and  mitigating  circumstances  of  the  crime.  By “well  recognised  principles”  the  court  obviously  meant  the  principles  crystallised by judicial decisions illustrating as  to  what  were  regarded  as  aggravating  or  mitigating  circumstances  in  those  cases. The  legislative changes since Jagmohan — as we have  discussed  already  —  do  not  have  the  effect  of  abrogating or nullifying those principles. The only  effect is that the application of those principles is  now to  be  guided  by  the  paramount  beacons  of  legislative policy discernible from Sections 354(3)  and 235(2), namely: (1) The extreme penalty can  be  inflicted  only in  gravest  cases  of  extreme  culpability; (2) In making choice of the sentence,  in  addition  to  the  circumstances,  of  the  offence,  due regard must  be paid to the circumstances of  the offender, also.”

It continuing in the same vein held:   

“Cognizant  of  the  past  experience  of  the  administration  of  death  penalty  in  India,  Parliament, in its wisdom, thought it best and safe  to leave the imposition of this gravest punishment  in  gravest  cases  of  murder,  to  the  judicial  discretion  of  the  courts  which  are  manned  by  persons of reason, experience and standing in the  profession.  The  exercise  of  this  sentencing  discretion  cannot  be  said  to  be  untrammelled  

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and  unguided.  It  is  exercised  judicially  in  accordance  with  well  recognised  principles  crystallised by judicial decisions, directed along  the broad contours of legislative policy towards  the signposts enacted in Section 354(3).”

3(B). Cases Where Death Penalty Was Imposed/Affirmed

In Ram Singh v.  Sonia and Ors. [2007 (3) SCALE 106] the accused  

couple  had,  in  a  most  diabolic  manner,  ended  the  lives  of  their  family  

members, which included the step brother of the wife, his children and even  

her own father, mother and sister, all with the motive of inheriting the family  

property. This Court noting the cold blooded and pre meditated approach in  

murdering the family while they were all sleeping considered it as a fit case  

for the imposition of death penalty on the couple.

In Prajeet Kumar Singh v. State of Bihar [2008 (4) SCALE 442] the  

accused had murdered the children of the family where he had been staying  

as a tenant for the past four years, while they were sleeping. He thereafter  

proceeded to attack the adult  members of the family who on hearing the  

screams of their  children had come to their  rescue.  The court  noting the  

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brutality of manner of the attack considered it a fit case for the imposition of  

death sentence.

In  Mohan Anna Chavan (supra) the court upheld the death sentence  

imposed on a serial rapist. The accused had already been convicted twice for  

the raping a minor girl, but on the first occasion he was awarded a sentence  

only  of  two  years  and  on  the  second,  sentence  of  ten  years  rigorous  

imprisonment  only.  When  the  accused  was  convicted  of  raping  and  

murdering two minor girls again, the court refused to interfere with the death  

sentence awarded by the lower courts.

In  Bantu v.  State  of  Uttar  Pradesh [2008  (10)  SCALE  336]   the  

accused had, after raping a six year old girl, tried to conceal his crime by  

inserting a stick in her vagina which ultimately resulted in causing her death.  

The court noted that the depraved acts of the accused only deserved a death  

sentence.  

In Shivaji @ Dady Shankar Alhat  (supra) the accused had raped and  

murdered a nine year old girl.  This Court therein rejecting the argument that  

the conviction having been based in circumstantial evidence, death penalty  

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should not be awarded, affirmed the death penalty awarded by the lower  

court.

In State of U.P.   v.  Sattan, [ 2009 (3) SCALE 394 ], six members of  

a family were murdered by the accused leaving only three survivors over  

some personal enmity.  The trial court awarded them death sentence.  The  

High  Court  commuted  the  sentence  to  one  of  life  imprisonment.   The  

Supreme Court in appeal noting the brutality of murder held that the accused  

deserved only a death penalty.  

3(C). Cases Where Death Penalty was not Awarded/ Affirmed

In  Ujjagar  Singh v.  State  of  Punjab, [2007  (14)  SCALE 428]  the  

accused had been convicted of murder and rape and accordingly sentenced  

to death by the lower courts. This Court in appeal, acquitting the accused  

only of the charge of rape because of the lack of evidence, noted that since  

the charge of rape formed a substantial portion of reasoning for causing the  

death, the death sentence on the accused could no longer be sustained, once  

he was acquitted on that charge. The sentence was accordingly altered to one  

of life imprisonment.

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In  Amrit  Singh v.  State  of  Punjab [2006  (11)  SCALE  309]  the  

accused had raped a minor girl. The victim died a painful death because of  

bleeding from her private parts. The court, however, noted that the accused  

might not have had the intention of murdering the victim, but her death was  

only the unfortunate inevitable consequence of the crime, hence it did not  

fall within the rarest of the rare cases.

In Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2) SCALE  

42], this Court commuted the death penalty of the accused on the ground  

that the prosecution case was entirely based on circumstantial evidence.

In State of Maharashtra  v.  Prakash Sakha Vasave and others, [ 2009  

(1) SCALE 713] the accused had brutally attacked with axes the husband of  

their sister, who was having an illicit relationship with another woman.  The  

trial court had found two of the accused guilty and sentenced them to death.  

In appeal the High Court acquitted the accused because of lack of evidence.  

This Court in appeal set aside the judgment of acquittal passed by the High  

Court but noticed that the case before it did not fall in the rarest of rare and  

deserved only a life imprisonment.  

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3(D) Differing opinion in other cases  

While dealing with a matter as to whether death penalty should be  

awarded or not, although the court ordinarily would look to the precedents,  

but, this becomes extremely difficult, if not impossible, in the context of the  

cases discussed above. There is no uniformity of precedents, to say the least.  

In most cases, the death penalty has been affirmed or refused to be affirmed  

by us, without laying down any legal principle.   

In Aloke Nath Dutt and ors. v. State of West Bengal, [2006 (13)  

SCALE 467] this Court after examining various judgments over the past two  

decades in which the issues of rarest of rare fell for consideration, admitted  

the failure on the part  of this Court to evolve a uniform sentencing policy in  

capital punishment cases and conclude as to what amounted to ‘rarest of   

rare’.   Disparity in sentencing has also been noted in Swamy Shraddananda  

v. State of Karnataka (Swamy Shraddananda – I) [(2007) 12 SCC 288].

In the aforementioned backdrop, we may notice a recent three-Judge  

Bench decision of this Court in  Swamy Shraddananda @ Murali Manohar  

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Mishra (supra). Aftab Alam, J., writing the judgment for the Three-Judge  

Bench held:

“33. The truth of the matter is that the question of  death  penalty  is  not  free  from  the  subjective  element and the confirmation of death sentence or  its commutation by this Court depends a good deal  on  the  personal  predilection  of  the  judges  constituting the bench.

34. The inability of the Criminal Justice System to  deal with all major crimes equally effectively and  the want of uniformity in the sentencing process by  the Court lead to a marked imbalance in the end  results. On the one hand there appears a small band  of cases in which the murder convict is sent to the  gallows on confirmation  of  his  death penalty  by  this Court and on the other hand there is a much  wider  area  of  cases  in  which  the  offender  committing  murder  of  a  similar  or  a  far  more  revolting  kind  is  spared  his  life  due  to  lack  of  consistency by the Court in giving punishments or  worse  the  offender  is  allowed  to  slip  away  unpunished on account of the deficiencies in the  Criminal  Justice  System.  Thus  the  overall  larger  picture gets asymmetric and lop-sided and presents  a  poor  reflection  of  the  system  of  criminal  administration of justice. This situation is matter of  concern for this Court and needs to be remedied.”

The issue of  subjectivity  has also been previously  noticed by both  

academics and this Court. Professor Anthony R. Blackshield’s analysis in  

the  mid  1970s  showed  this  trend  in  the  pre-Bachan  Singh  period.  [see  

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Journal  of  the  Indian  Law  Institute 1979].  This  was  also  noticed  by  

Bhagwati, J. in his dissenting judgment in Bachan Singh (supra).  

In  the  post-Bachan  Singh  period,  a  joint  report  by  the  Amnesty  

International  -  India and People’s  Union for  Civil  Liberties  Report  titled  

“Lethal  Lottery:  The Death  Penalty  in  India,  A study  of  Supreme Court  

Judgments in death penalty cases 1950-2006” and the Swamy Shraddananda  

(supra)  judgment  show quite  clearly  that  not  much  has  changed  in  this  

respect.  

To assist future benches at considering the facts of individual cases  

however, the Constitution Bench in Bachan Singh (supra) did however note  

certain aggravating and mitigating factors mentioned by the Amicus Curie  

(drawn from jurisprudence from the USA as also Clauses (2)(a), (b), (c) and  

(d) of the already lapsed Indian Penal Code (Amendment) Bill, 1972). The  

Supreme  Court  did  however  endorse  them,  referring  to  them  as  

“undoubtedly relevant circumstances and must be given great weight in the  

determination of sentence”.  

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Machhi Singh v.  State of Punjab, [ (1983) 3 SCC 470 ] went further  

and  made  a  tabular  comparison  of  such  mitigating  and  aggravating  

circumstances.  

Yet as the above discussion has clearly shown, it  is now clear that  

even  the  balance-sheet  of  aggravating  and  mitigating  circumstances  

approach invoked on a case by case basis has not worked sufficiently well so  

as to remove the vice of arbitrariness from our capital sentencing system. It  

can be safely said that the Bachan Singh threshold of “rarest of rare cases”  

has  been  most  variedly  and  inconsistently  applied  by  the  various  High  

Courts as also this court. At this point we also wish to point out that the  

uncertainty in the law of capital sentencing has special consequence as the  

matter  relates  to  death  penalty  –  the  gravest  penalty  arriving  out  of  the  

exercise of extraordinarily wide sentencing discretion, which is irrevocable  

in nature. This extremely uneven application of  Bachan Singh (supra) has  

given rise to a state of uncertainty in capital sentencing law which clearly  

falls foul of constitutional due process and equality principle. The situation  

is unviable as legal discretion which is conferred on the executive or the  

judiciary is only sustainable in law if there is any indication, either though  

law or precedent,  as to the scope of the discretion and the manner of its  

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exercise.  There  should  also  be  sufficient  clarity  having  regard  to  the  

legitimate aim of the measure in question. Constitution of India provides for  

safeguards  to  give  the  individual  adequate  protection  against  arbitrary  

imposition of criminal punishment.  

Although these questions are not under consideration and cannot be  

addressed here and now, we cannot help but observe the global move away  

from the death penalty.  Latest  statistics  show that  138 nations have now  

abolished the death penalty in either  law or practice (no executions for 10  

years). Our own neighbours, Nepal and Bhutan are part of these abolitionist  

nations  while  others  including  Philippines  and  South  Korea  have  also  

recently joined the abolitionist group, in law and in practice respectively. We  

are  also  aware  that  on  18  December  2007,  the  United  Nations  General  

Assembly adopted resolution 62/149 calling upon countries that retain the  

death  penalty  to  establish  a  worldwide  moratorium on executions with  a  

view to abolishing the death penalty.  

India is, however, one of the 59 nations that retain the death penalty.  

Credible research, perhaps by the Law Commission of India or the National  

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Human  Rights  Commission  may  allow  for  an  up  to  date  and  informed  

discussion and debate on the subject.

CONSTITUTIONAL  LANDSCAPE  ON  CAPITAL  SENTENCING:  

MINIMUM SAFEGUARDS

We have already dealt with the ratio of Bachan Singh (supra) in detail  

but here we would focus on the backdrop to the Rarest of rare dictum and  

the dilemma faced by the Bachan Singh court in this regard. The perspective  

which emerges from this reading showcases the constitutional riddle which  

is inherent to law on capital sentencing in India.  

At the very outset  Bachan Singh (supra) delineated the scope of the  

matter in the following terms:

“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 Sec. 354(3) of the Code of Criminal  Procedure, 1973 is unconstitutional on the ground  that  it  invests  the  Court  with  unguided  and  untrammeled discretion and allows death sentence  to be arbitrarily or freakishly imposed on a person  

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Thomas, J. also reached to a similar conclusion in Ram Deo Chauhan  

v. State of Assam [(2001) 5 SC 714]:

“A peep into the historical background of how death  penalty  survived  Article  21  of  the  Constitution  would be useful in this context. Apart  from  the  two  schools  of  thought  putting  forward their  respective points of view stridently -  one pleading for retention of death penalty and the  other  for  abolition of  it  -  a  serious  question  arose  whether the law enabling the State to take away the  life of a person by way of punishment would be hit  by  the  forbid  contained  in  Article  21  of  the  Constitution.  In  Bachan  Singh vs.  State  of  Punjab  (supra)  the  majority  Judges  of  the  Constitution  Bench saved the death penalty from being chopped  out of the statute book by ordering that death penalty  should be strictly restricted to the tiniest category of  the  rarest  of  the  rare  cases  in  which  the  lesser  alternative is unquestionably foreclosed.”

On a deeper reading of Bachan Singh (supra) it becomes clear that the  

court was operating under two fundamental constraints while dealing with  

the constitutionality challenge:

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Firstly, death penalty is mentioned in the Constitution (for instance  

under Article 161 and Article 72(1)(c). Constitutional recognition was taken  

to be a primary signal for the legitimacy for section 302.

Secondly,  owing to  separation  of  power  doctrine,  the  court  took a  

deferential view towards section 354(3) which was brought in to discipline  

the courts on death penalty by making life imprisonment the rule and death  

penalty exception.  

 Laboring under the aforementioned constraints, the death penalty was  

held constitutional.  This affirmative  response to constitutionality  of death  

penalty  presented  another  complicated  challenge  which  related  to  

administration  of  death  penalty  or  in  other  words,  sentencing  of  capital  

punishment. This has been universally considered as a vexed question of law  

and practice and has not been satisfactorily dealt with in any jurisdiction so  

far.  

It is interesting to note here that this Court opined in State of Punjab  

v. Prem Sagar and Ors. [JT 2008 (7) SC 66], as late as 2008, that there is no  

sentencing policy in India. But  Bachan Singh (supra) treated death penalty  

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as an exceptional penalty, different from any other punishment, and did lay  

down a policy prescription on sentencing, way back in 1980.   

We  have  also  noticed  that  in  numerous  decisions  of  this  court,  

constitutional  guarantees  have  been  invoked  at  some  stage  of  capital  

sentencing.  Similarly,  rarest  of  rare dictum  takes  its  colour  from  

constitutional guarantees.  

1. “JUSTICE” IN CAPITAL SENTENCING

Justice must be the first virtue of the law of  sentencing. A sentencing  

court must consider itself to be a "forum of principle". The central idea of  

such a forum is its continuing commitment to inhere a doctrinal approach  

around a core normative idea. “Principled reasoning” flowing from judicial  

precedent  or  legislation  is  the  premise  from which  the  courts  derive  the  

power.  The  movement  to  preserve  substantial  judicial  discretion  to  

individualize sentences within a range of punishments also has its basis in  

the court’s ability to give principled reasoning.  

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The claim of sentencing to being a principled exercise is very important  

to the independent and unpartisan image of judiciary.  R. v. Willaert (1953),  

105 C.C.C. 172 (Ont.C.A.) way back in 1953, envisaged the role of judge in  

sentencing as "an art--a very difficult art--essentially practical, and directly  

related to the needs of society." We have now come from that description of  

court  to  court  as  “forum  of  principle”.  This  role  is  consistent  with  the  

constitutional mandate of due process and equal protection.  

(See  Ronald  Dworkin,  The Forum of  Principle  56  NYU L.  Rev.  469  

(1981) for more on “forum of principle”; for more on justice and sentencing  

see  Von  Hirsch  and  Andrew Ashworth,  The  Sentencing  Theory  Debate:  

Convergence  in  Outcomes,  Divergence  in  Reasoning  Proportionate  

Sentencing: Exploring The Principles, Oxford University Press, 2005)

There is a fundamental relationship between the legitimacy of sentence  

belonging to a particular potency and the reasons accorded by the court to  

justify the same. This flows from the inherent nature of punishment which  

can be understood as a coercive force invoked by the state for a legitimate  

purpose. It was Bentham who said that "all punishment in itself is evil. Upon  

the principle of utility, if it ought at all to be admitted, it ought only to be  

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admitted in as far as it promises to exclude some greater evil." (See Jeremy  

Bentham, An Introduction to the Principles of Morals and Legislation, in A  

Fragment of Government with An Introduction to the Principles of Morals  

and Legislation 281 (1948).)

The reasons which are accorded by the court to justify the punishment  

should  be  able  to  address  the  questions  relating  to  fair  distribution  of  

punishment  amongst  similarly  situated  convicts.  This  may  be  called  the  

problem of distributive justice in capital sentence. In this context, the inquiry  

under  Article  14  becomes  significant.  Fairness  in  this  context  has  two  

aspects:

First refers to fair distribution amongst like offenders

And the second relates to the appropriate criteria for the punishment.   

The  sentencing  process,  based  on  precedents  around  Bachan  Singh  

(supra),  should  help  us  to  determine  specific,  deserved  sentences  in  

particular  cases.  The reason as  to  why questions  of  justice  play such an  

important part in the distribution of capital punishment, lies in the special  

nature of capital punishment itself. Distributive justice is a relative notion:  

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one can never determine whether one has received one's fair share except by  

comparison with that which has been allocated to others. Both questions are  

intertwined when we speak of Capital Sentence.

Scholars have described the problem of disparate sentencing variously.  

Characterizing  a  situation  before  sentencing  reforms  swept   American  

jurisdiction,  when  judges  were  using  personal  judgments  to  decide  the  

questions of sentencing, Marvin Frankel referred the practice as "wasteland  

in the law" and the general situation as one of "lawlessness." (See Marvin E.  

Frankel, Lawlessness in Sentencing, 41 U. Cin. L. Rev. 1 (1972))  

2. EQUAL PROTECTION CLAUSE  

A survey of the application of Rarest of rare doctrine in various courts  

will reveal that various courts have given their own meaning to the doctrine.  

This variation in the interpretation of Rarest of rare analysis may amount to  

be constitutionally infirm because of apparent arbitrariness on the count of  

content of the doctrine.  

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The moot question is whether, after more than quarter of a century  

since  Bachan Singh (supra) recognized death penalty as a constitutionally  

permissible penalty, we can distill a meaningful basis from our precedent on  

death penalty, for distinguishing the few cases in which the capital sentence  

is imposed from the many cases in which it is not? A similar question was  

put by Justice Stewart in Furman (supra). He noted death sentences are cruel  

and unusual  in  the  same way as  being “struck by lightning is  cruel  and  

unusual”.  Moreover,  the  petitioners  sentenced  to  death  were  seen  as  

"capriciously selected random handful" and the question posed was whether  

the eighth amendment could tolerate death sentences "so wantonly and so  

freakishly imposed." Today, it could be safely said in the context of Indian  

experience on death penalty that no standards can be culled out from the  

judge made law which governs the selection of penalty apart  from broad  

overall guideline of Rarest of rare under Bachan Singh (supra).

Frequent findings as to arbitrariness in sentencing under section 302  

may violate the idea of equal protection clause implicit under Article 14 and  

may also fall foul of the due process requirement under Article 21. It is to be  

noted that we are not focusing on whether wide discretion to choose between  

life  imprisonment  and  death  punishment  under  section  302  is  

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constitutionally  permissible  or  not.  The  subject-matter  of  inquiry  is  how  

discretion under section 302 may result in arbitrariness in actual sentencing.  

Section 302 as held by Bachan Singh (supra) is not an example of law which  

is arbitrary on its face but is an instance where law may have been arbitrarily  

administered.

In Swamy Shraddananda (supra), this court noted arbitrariness-in-fact  

prevalent in the capital sentencing process with extraordinary candour:  

“Coupled  with  the  deficiency  of  the  Criminal  Justice  System  is  the  lack  of  consistency  in  the  sentencing process even by this Court. It is noted  above that Bachan Singh laid down the principle of  the Rarest of rare cases. Machhi Singh, for practical  application  crystallised  the  principle  into  five  definite categories of cases of murder and in doing  so  also  considerably  enlarged  the  scope  for  imposing death penalty. But the unfortunate reality  is that in later decisions neither the  Rarest of rare  cases  principle  nor  the  Machhi  Singh  categories  were followed uniformly and consistently. In Aloke  Nath Dutta v.  State of West Bengal Sinha J. gave  some  very  good  illustrations  from  a  number  of  recent decisions in which on similar facts this Court  took contrary views on giving death penalty to the  convict  (see  paragraphs  154  to  182,  pp.504-510  SCALE).  He  finally  observed  that  `courts  in  the  matter  of  sentencing  act  differently  although  the  fact situation may appear to be somewhat similar'  and further `it is evident that different benches had  taken different view in the matter'.  Katju J. in his  

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order passed in this appeal said that he did not agree  with the decision in Aloke Nath Dutt in that it held  that death sentence was not to be awarded in a case  of  circumstantial  evidence.  Katju  J.  may be  right  that  there  can  not  be  an  absolute  rule  excluding  death  sentence  in  all  cases  of  circumstantial  evidence  (though  in  Aloke  Nath  Dutta  it  is  said  `normally' and not as an absolute rule). But there is  no denying the illustrations cited by Sinha J. which  are a matter of fact. 32. The same point is made in far greater detail in a  report called, "Lethal Lottery, The Death Penalty in  India"  compiled  jointly  by  Amnesty  International  India and Peoples Union For Civil Liberties, Tamil  Nadu  & Puducherry.  The  report  is  based  on  the  study of Supreme Court judgments in death penalty  cases from 1950 to 2006. One of the main points  made in the report (see chapter 2 to 4) is about the  Court's  lack  of  uniformity  and  consistency  in  awarding death sentence. 33. The truth of the matter is that the question of  death  penalty  is  not  free  from  the  subjective  element and the confirmation of death sentence or  its commutation by this Court depends a good deal  on  the  personal  predilection  of  the  judges  constituting the bench. 34. The inability of the Criminal Justice System to  deal with all major crimes equally effectively and  the want of uniformity in the sentencing process by  the Court  lead to a  marked imbalance in the end  results. On the one hand there appears a small band  of cases in which the murder convict is sent to the  gallows on confirmation of his death penalty by this  Court and on the other hand there is a much wider  area  of  cases  in  which  the  offender  committing  murder of a similar or a far more revolting kind is  spared  his  life  due  to  lack  of  consistency  by  the  Court in giving punishments or worse the offender  is allowed to slip away unpunished on account of  the  deficiencies  in  the  Criminal  Justice  System.  

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Thus the overall larger picture gets asymmetric and  lop-sided  and  presents  a  poor  reflection  of  the  system of  criminal  administration of  justice.  This  situation  is  matter  of  concern  for  this  Court  and  needs to be remedied. 35. These are some of the larger issues that make us  feel  reluctant  in confirming the death sentence of  the appellant. Equal protection clause ingrained under Article 14  applies  to  the  judicial  process  at  the  sentencing  stage.  We share  the  court’s  unease  and  sense  of  disquiet  in  Swamy  Shraddananda  case  and  agree  that  a  capital  sentencing  system which  results  in  differential  treatment  of  similarly  situated  capital  convicts  effectively  classify  similar  convict  differently with respect to their right to life under  Article 21. Therefore, an equal protection analysis  of this problem is appropriate.  In the ultimate analysis, it serves as an alarm bell  because  if  capital  sentences  cannot  be  rationally  distinguished  from a  significant  number  of  cases  where the result was a life sentence, it is more than  an  acknowledgement  of  an  imperfect  sentencing  system.  In  a  capital  sentencing  system  if  this  happens  with  some  frequency  there  is  a  lurking  conclusion as regards the capital sentencing system  becoming constitutionally arbitrary.”  

We have to be, thus, mindful that the true import of  Rarest of rare  

doctrine speaks of an extraordinary and exceptional case.  

When the court is faced with a capital sentencing case, a comparative  

analysis of the case before it with other purportedly similar cases would be  

in the fitness of the scheme of the Constitution. Comparison will presuppose  

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an identification of a pool of equivalently circumstanced capital defendants.  

The gravity, nature and motive relating to crime will play a role play a role  

in this analysis.  

Next step would be to deal with the subjectivity involved in capital  

cases. The imprecision of the identification of aggravating and mitigating  

circumstances has to be minimized.  It  is to be noted that the mandate of  

equality clause applies to the sentencing process rather than the outcome.  

The comparative review must be undertaken not to channel the sentencing  

discretion available to the courts but to bring in consistency in identification  

of various relevant circumstances.

The aggravating and mitigating circumstances have to be separately  

identified under a rigorous measure.  Bachan Singh (supra), when mandates  

principled  precedent  based  sentencing,    compels  careful  scrutiny  of  

mitigating circumstances and aggravating circumstances and then factoring  

in a process by which aggravating and mitigating circumstances appearing  

from the pool of comparable cases can be compared.

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The weight which is accorded by the court to particular aggravating  

and mitigating circumstances may vary from case to case in the name of  

individualized sentencing, but at the same time reasons for apportionment of  

weights  shall  be  forthcoming.  Such  a  comparison  may  point  out  

excessiveness as also will help repel arbitrariness objections in future.

A  sentencing  hearing,  comparative  review  of  cases  and  similarly  

aggravating and mitigating circumstances analysis can only be given a go by  

if the sentencing court opts for a life imprisonment.  

3. THE “RAREST” OF “RARE CASES”

Bachan  Singh (supra)  laid  down  its  fundamental  threshold  in  the  

following terms:  

“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.”

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To  translate  the  principle  in  sentencing  terms,  firstly,  it  may  be  

necessary to establish general pool of rare capital cases. Once this general  

pool is established, a smaller pool of rare cases may have to established to  

compare and arrive at a finding of Rarest of rare case.

4. ARTICLE 21

Right to life, in its barest of connotation would imply right to mere  

survival.  In this  form, right  to life is  the most  fundamental  of  all  rights.  

Consequently a punishment which aims at taking away life is the gravest  

punishment.  Capital  punishment  imposes  a  limitation  on  the  essential  

content  of  the  fundamental  right  to  life,  eliminating  it  irretrievably.  We  

realize the absolute nature of this right, in the sense that it is a source of all  

other rights. Other rights may be limited, and may even be withdrawn and  

then granted again, but their ultimate limit is to be found in the preservation  

of the right to life. Right to life is the essential content of all rights under the  

Constitution.  If  life  is  taken  away  all,  other  rights  cease  to  exist.  South  

African constitutional  court  in  S v.  Makwanyane [1994 (3)  SA 868 (A)]  

captures the crux of right to life in following terms:  

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“Prisoners are entitled to all  their  personal  rights  and personal dignity not temporarily taken away by  law,  or  necessarily  inconsistent  with  the  circumstances in which they had been placed.

A prisoner  is  not  stripped  naked,  bound,  gagged  and  chained  to  his  or  her  cell.  The  right  of  association  with  other  prisoners,  the  right  to  exercise, to write and receive letters and the rights  of  personality  referred to  by  Innes  J  are  of  vital  importance to prisoners and highly valued by them  precisely  because  they  are  confined,  have  only  limited  contact  with  the  outside  world,  and  are  subject  to  prison  discipline.  Imprisonment  is  a  severe  punishment;  but  prisoners  retain  all  the  rights  to  which  every  person  is  entitled  under  Chapter  3 subject only to limitations imposed by  the prison regime that are justifiable under section  33.  Of  these,  none  are  more  important  than  the  section 11(2) right not to be subjected to "torture of  any kind . . .  nor to cruel, inhuman or degrading  treatment or punishment".  

There  is  a  difference  between  encroaching  upon  rights  for  the  purpose  of  punishment  and  destroying  them  altogether.  It  is  that  difference  with which we are concerned in the present case.”  

This  court  has  acknowledged  Death  Punishment  to  be  the  most  

extraordinary penalty in various decisions. In Shankarlal Gyarasilal Dixit v.  

State of Maharashtra [(1981)2SCC35] the court held:

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“Unfaithful  husbands,  unchaste  wives  and  unruly  children are not for that reason to be sentenced to  death if they commit murders unconnected with the  state of their equation with their family and friends.  The passing of the sentence of death must elicit the  greatest concern and solicitude of the Judge because,  that is one sentence which cannot be recalled.”

Therefore, in the context of punishments, the protections emanating  

from Article 14 and Article 21 have to be applied in the strictest possible  

terms. At this juncture, it  is best to point out that the ensuing discussion,  

although applicable in constitutionality context, is carried out in the context  

of sentencing of death punishment. In every capital sentence case, it must be  

borne  in  mind  that  the  threshold  of  rarest  of  rare cases  is  informed by  

Article  14  and  21,  owing  to  the  inherent  nature  of  death  penalty.  Post  

Bachan  Singh (supra),  capital  sentencing  has  come  into  the  folds  of  

constitutional adjudication. This is by virtue of the safeguards entrenched in  

Article 14 and 21 of our constitution.  

Article 21 imposes two kinds of limitations,  which overlap in their  

reach, on punishments:

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4(A). Due process requirement

With  non-capital  punishments,  a  more  severe  punishment  for  one  

offender than another is commonly accepted, even in similar circumstances.  

The infinite gradations of guilt and the limits of human capacity to judge  

cause us to overlook differential treatment of apparently similar convicts. As  

the relative severity of punishment increases,  how ever,  it  becomes more  

difficult to overlook sentencing disparities. Death is the most severe of all  

punishments.  

The US Supreme Court has acknowledged that there is a profound and  

immeasurable  gap  between  a  death  sentence  and  a  life  sentence.  In  

Woodson, [428 U.S.  at  305] the  court  held that  there is  a corresponding  

difference in the need for reliability in the determination that death is the  

appropriate punishment in a specific case. (see also  Lockett, [438 U.S. at  

604]) In Rummel v. Estelle, [445 U.S. 263, 272 (1980)], the Court noted that  

challenges  to  the  excessiveness  of  particular  sentences  have  rarely  been  

successful in non-capital cases.

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Fairness  to  any  capitally  sentenced  convict,  therefore,  requires  an  

assessment  of  the  relative  propriety  of  the  sentence.  Because  of  their  

irrevocability and severity, the Constitution requires greater reliability and  

fairness from sentencing courts for capital sentences than for non- capital  

sentences.  

4(B). Proportionality Requirement  

The Canadian Charter of Rights makes provision for the limitation of  

rights  through  a  general  clause.  Section  1  of  the  Charter  permits  such  

reasonable limitations on Charter rights "as can be demonstrably justified in  

a free and democratic society". In R. v.  Oakes, [1986] 1 S.C.R. 103 it was  

held  that  in  order  to  effect  a  limitation,  there  has  to  exist  a  sufficient  

objective to warrant the limitation of the right in question. There should also  

be proportionality between the limitation and such objective. In a frequently-

cited passage, Dickson, J.  described the components of proportionality as  

follows:  

"There  are,  in  my  view,  three  important  components  of  a  proportionality  test.  First,  the  measures  adopted  must  be  carefully  designed  to  achieve the objective in question. They must not be  arbitrary,  unfair  or  based  on  irrational  considerations.  In  short,  they  must  be  rationally  

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connected  to  the  objective.  Secondly,  the  means,  even if rationally connected to the objective in the  first sense, should impair 'as little as possible'  the  right or freedom in question: R v Big M Drug Mart  Limited (supra). Thirdly, there must be a proportionality between the  effects  of the measures  which are  responsible  for  limiting  the  charter  right  of  freedom,  and  the  objective which has been identified as of 'sufficient  importance'."

During the sentencing process, the sentencing court or the appellate  

court for that matter,  has to reach to a finding of a rational and objective  

connection  between  capital  punishment  and  the  purpose  for  which  it  is  

prescribed. In sentencing terms, “special reasons” as envisaged under section  

354(3) Code of Criminal Procedure have to satisfy the comparative utility  

which capital sentence would serve over life imprisonment in the particular  

case. The question whether the punishment granted impairs the right to life  

under Article 21 as little as possible.  

R  .   v. Chaulk,[[1990] 3 S.C.R. 1303] suggested that the means must  

impair the right "as little as is reasonably possible". The court held:  

“Where choices have to be made between "differing  reasonable policy options", the courts will allow the  Government  the  deference  due  to  legislators,  but  "(will)  not  give  them  an  unrestricted  licence  to  disregard an individual's Charter rights. Where the  

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Government cannot show that it  had a reasonable  basis for concluding that it has complied with the  requirement  of  minimal  impairment  in  seeking to  attain  its  objectives,  the  legislation will  be struck  down".”

The fact  that capital  sentence is a live penalty in India;  we should  

strive to tune the practice to the evolving standards of a maturing society.  

The  normative  thresholds  attached  thereto  and  evolving  constitutional  

sensibilities  shall  continue  to  throw fresh  challenges.  We have  not  fully  

resolved the dilemma arising from the fact that the Constitution prohibits  

excessive  punishment  borne  out  of  undue process,  but  also  permits,  and  

contemplates that there will be capital punishment arising out of an exercise  

of extremely wide discretion. This dilemma is inherently difficult to resolve.  

And we should refrain from enforcing any artificial peace on this landscape.

While  chosing  for  one  option  or  the  other,  these  constitutional  

principles must be borne in mind.  The nature of capital sentencing is such  

that it is important that we ask the right questions. Tony Bottoms very aptly  

puts this general sentencing dilemma, which become much more acute in  

capital  sentencing.  He  comments,  that  “justice”  and  punishment  when  

applied  to  sentencing  are  "asymmetrical  concepts,  in  the  sense  that  it  is  

reasonably  easy to  establish  what  is  unjust  or  undeserved,  but  not  what,  

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precisely, is just or deserved." (See Anthony Bottoms, The Philosophy and  

Politics  of  Punishment  and  Sentencing,  in  The  Politics  of  Sentencing  

Reform 20 (C.M.V. Clarkson & R. Morgan eds., 1995))

Principle  of  prudence,  enunciated  by  Bachan  Singh (supra)  is  sound  

counsel on this count which shall stand us in good stead – whenever in the  

given  circumstances,  there  is  difference  of  opinion  with  respect  to  any  

sentencing  prop/rationale,  or  subjectivity  involved  in  the  determining  

factors, or lack of thoroughness in complying with the sentencing procedure,  

it  would be advisable to fall in favour of the “rule” of life imprisonment  

rather than invoking the “exception” of death punishment.

SENTENCING IN THIS CASE – BACHAN SINGH TEST  

Let us now examine the relevant factors relating to sentencing in this  

case, keeping in mind the letter and spirit of the Bachan Singh (supra).    

Kumar Gaurav (PW-1) has given the details of the incident. We have  

already noted his statement before the court primarily on the deposition of  

the  said  Approver,  Kumar  Gaurav,  whereupon  the  prosecution  relies  to  

establish that the accused deserves the harshest punishment.  

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Accused No. 1 however has a different story to tell. As per him he  

himself, Kumar Gaurav (PW-1) and Kartikraj (the deceased) had staged a  

fake kidnapping to extract money from Kartikraj’s parents. It is evident from  

his deposition that  all  persons involved were in the night  of the incident  

having a party at his flat situated in Amrapali Society.  They were drunk.  

They had watched movies all night on the VCR.  They made a phone call at  

the residence of the father of Kartikraj, demanding ransom.  It was done only  

on the suggestion of Kumar Gaurav (PW-1), the Approver. It was he who  

had suggested  that  they  could earn  a  good amount  pretending  to  kidnap  

someone amongst them. Kartikraj was chosen since his father was from a  

wealthy family.  It was Kartikraj himself who had dialed his father’s number  

and handed over the phone to Kumar Gaurav (PW-1).   

As per the appellant, they had continued the party even on the next  

day. Since all the liquor had been consumed he himself and the deceased had  

at about 4.00 p.m. gone out to purchase some more liquor. Thereafter he had  

left the place to finish his work and when he came back, he found Kartikraj  

lying in front of the toilet having sustained head injuries. We may notice his  

statements from the judgment of the learned Sessions Judge in the following  

terms:

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“Thereafter,  as  he  had  some  work,  he  dropped  Kartikraj to that flat and went to finish his work.  Thereafter, when he came back to that flat, he saw  Kartikraj lying in front of the toilet sustaining head  injury.   Approver  –  Kumar  Gaurav  and  his  two  friends found frightened and worried.  Thereafter,  when he inquired with them as to what happened,  Kumar  Gaurav  told  him  that  after  Kartikraj  brought bottles of Rum, he drunk very fast and got  drink very heavily  and while going to the toilet,  fell  down etc.   Thereafter,  when he suggested to  take Kartikraj to a doctor, approver Kumar Gaurav  said that since he made ransom call, nobody would  believe  them  that  Kartikraj  fell  unconscious  accidentally  after  drinking  heavily.  Thereafter,  approver  Kumar  Gaurav  told  him  that  in  fact  Kartikraj  is  dead  and  he  has  confirmed  by  checking his pulse.  After hearing this, he got very  scared  and  told  Kumar  Gaurav  that  they  must  inform police and now, the joke has gone too far.  But, Kumar Gaurav told that he has thought about  everything  and  asked  him  to  dispose  of  the  motorcycle of Kartikraj.  Accordingly, he left the  flat and under mental stress and fear, he wandered  here  and  there  and  finally  abandoned  the  motorcycle in wee hours of morning.  Thereafter,  he did not go back to the flat of Amrapali Society.  On 9.8.2001 in the evening, he received phone call  of Kumar Gaurav (P.W.1) asking him to come to  Mumbai at Dadar immediately and threatened him  that  if  he  did  not  go  as  per  his  directions  to  Mumbai,  he  will  inform his  name to  the  police.  Therefore, he followed whatever was being told by  approver Kumar Gaurav.  When he went to Pariera  Housing Society flat at Naigaon, Mumbai, he saw  Kumar Gaurav (P.W.1) and Accused Nos. 2 and 3  there.   There  he  was  told  by  Kumar  Gaurav  (P.W.1)  that  he  himself  and  his  associates  have  disposed of the dead body of Kartikraj and further  

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told him that the father of Kartikraj is still ready to  pay  ransom  and  that  he  would  be  sending  the  amount to Mumbai and he (Kumar Gaurav P.W.1)  will collect the amount.  Thereafter when Kumar  Gaurav  (P.W.1)  went  to  collect  the  amount  of  ransom, he was asked by Kumar Gaurav (P.W.1)  to  stand  near  Andheri  Railway  Station.  Accordingly, when he was standing near Andheri  Railway Station, police along with Kumar Gaurav  (P.W.1)  came  there  and  accosted  him.   Thus,  according  to  Accused  No.  1  Santoshkumar  Bariyar,  death  of  Kartikraj  is  accidental  and  his  dead  body  is  disposed  of  by  Kumar  Gaurav  (P.W.1) and his friends.  But, he does not know as  to how the dead body of Kartikraj  was disposed  of.”  

We may also notice the reasoning of the courts below in imposing  

death sentences on the appellant. The learned Sessions Judge as regards the  

appellant noted:

“…It  is  Santoshkumar  Bariyar’s  mastermind  which was responsible for the ultimate act of brutal  killing of Kartikraj and it is, [he] who directed the  accused  Nos.  2  and  3,  so  also,  Kumar  Gaurav  (PW-1) to catch hold Kartikraj while strangulation  and further it is, [he] who directed Accused Nos. 2  and 3 and approver Kumar Gaurav (PW-1) to cut  the dead body of Kartikraj.  Not only this, but it is,  [he] who acted nastly and inhumanly manner by  twisting  right  leg  of  Kartikraj  when  one  of  the  other  accused  could  not  cut  in  the  right  leg  of  Kartikraj.   Therefore, I  am of the opinion that  it  will not be possible to reform and rehabilitate the  accused No.1 by imposing [a] minimum sentence  of imprisonment for life.  Hence, I hold that this is  a rarest of rare case.”

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The sentence was affirmed by the High Court stating:

“…Examined from all angles, we feel that PW 1  has  established  that  the  main  architect  of  the  conspiracy is A1. It was hatched by all the accused  and  carried  out  as  per  the  directions  of  A1.  A1  showed extreme depravity in cutting the dead body  and ensuring that it was disposed of. The lust for  money continued till the accused were arrested…”

However  while  imposing the  sentence  of  imprisonment  for  life  on  

Sanjeeb  Kumar  Roy  (A  2)  and  Santosh  Kumar  Roy  (A  3)  the  learned  

Sessions Judge noted:

“As far as the Accused Nos. 2 and 3 are concerned,  it  is  evident  from  the  proven  facts  that  they  accepted  the  plan  of  Accused  No.  1  only  for  monetary gain. The plan was possessed by accused  No. 1 only. The Accused Nos. 2 and 3 as well as  the  approver  Kumar  Gaurav  were  motivated  by  accused  No.1  Santosh  Kumar  Bariyar  and  therefore, they all hatched [a] criminal conspiracy.  Hence it cannot be disputed that the Accused Nos.  2  and  3  participated  in  the  commission  of  [the]  crime  at  the  behest  of  Accused  No.  1  Santosh  Kumar  Bariyar,  which  can  be  considered  as  a  mitigating  circumstance.  Considering  this  mitigating circumstance and ages of Accused Nos.  2 and 3, in my view, it will be just and proper to  give them an opportunity to reform and rehabilitate  by  imposing  minimum  sentence  of  life  imprisonment.”   

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The High Court refused to interfere with the question of the sentence  

on the said accused in the following words:

“…Though it is true that A2 and A3 have actively  participated in the crime, the brain behind it is A 1.  A2 and A3 have carried out dictates of A1.  This is  a  mitigating  circumstance.  Hence,  we  are  not  inclined to enhance the sentence.”  

The  doctrine  of  proportionality,  which  appears  to  be  the  premise  

whereupon the learned trial judge as also the High Court laid its foundation  

for awarding death penalty on the appellant herein, provides for justifiable  

reasoning for awarding death penalty.  

However while imposing any sentence on the accused the court must  

also keep in mind the doctrine of rehabilitation. This, considering Section  

354(3)  of  the  Code,  is  especially  so  in  the  cases  where  the  court  is  to  

determine whether the case at hand falls within the rarest of the rare case.  

The  reasons  assigned  by  the  courts  below,  in  our  opinion,  do  not  

satisfy Bachan Singh Test.   Section 354 (3) of the Code provides for an  

exception.  General rule of doctrine of proportionality, therefore, would not  

apply.  We must read the said provision in the light of Article 21 of the  

Constitution of India.   

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Law laid down by  Bachan Singh (supra) and  Machhi Singh (supra)  

interpreting Section 354 (3) of the Code should be taken to be a part of our  

constitutional scheme.

Although the Constitutional Bench judgment of the Supreme Court in  

Bachan Singh (supra) did not lay down any guidelines on determining which  

cases  fall  within  the  ‘rarest  of  rare’  category,  yet  the  mitigating  

circumstances  listed  in  and  endorsed  by  the  judgment  gives  reform and  

rehabilitation great importance, even requiring the state to prove that this  

would not be possible, as a precondition before the court awarded a death  

sentence.  We  cannot  therefore  determine  punishment  on  grounds  of  

proportionality  alone.  There  is  nothing  before  us  that  shows  that  the  

appellant cannot reform and be rehabilitated.  

In  Dhananjoy Chatterjee v.  State of W.B. [(1994) 4 SCC 220], this  

Court has taken notice of the fact that shockingly large number of criminals  

go unpunished thereby increasingly  encouraging the criminals  and in  the  

ultimate  making  justice  suffer  by  weakening  the  system’s  credibility.  

Although the increasing number of cases which affect the society may hold  

some value for the sentencing court, but it cannot give a complete go-by to  

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the legal principle laid down by this court in Bachan Singh (supra) that each  

case has to be considered on its own facts.   

Mr. Adsure has placed strong reliance on a decision of this Court in  

Mohan and Others v. State of T.N. [(1998) 5 SCC 336] to contend that the  

manner  in  which  the  murder  was  committed  itself  point  out  that  all  the  

accused deserved death penalty.  In our opinion the facts of that  case are  

clearly distinguishable from the present one. That case involved the murder  

of a minor. It clearly is not applicable to the present case. Moreover, the  

court in that case too recognized that proper and due regard must be given to  

the mitigating circumstances in every case.

Further indisputably, the manner and method of disposal of the dead  

body of the deceased was abhorrent  and goes a long way in making the  

present case a most foul and despicable case of murder. However, we are of  

the opinion, that the mere mode of disposal of a dead body may not by itself  

be made the ground for inclusion of a case in the “rarest of rare” category  

for the purpose of imposition of the death sentence.  

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It may have to be considered with several other factors.  This Court  

has  dealt  with  the  issue  in  Ravindra  Trimbak  Chouthmal v.  State  of  

Maharashtra [(1996) 4 SCC 148]. In this case of dowry death, the head of  

the deceased was severed and her body cut into nine pieces for disposal.  

This court however expressed doubts over the efficacy of the deterrent effect  

of capital punishment and commuted the death sentence to one of RI for life  

imprisonment.  

The issue of deterrence has also been discussed in the judgment of  

Swamy Shraddananda – I      (supra),  thus:

“70.  It  is  noteworthy  to  mention  here  the  Law  Commission in its Report of 1967 took the view  that  capital  punishment  acted  as  a  deterrent  to  crime.  While  it  conceded  that  statistics  did  not  prove these so-called deterrent effects. It also said  that figures did not disprove them either.”

[Emphasis supplied]

Most  research  on  this  issue  shows  that  the  relationship  between  

deterrence and severity of punishment is complicated. It is not obvious how  

deterrence  relates  to  severity  and  certainty.  Furthermore  criminal  policy  

must be evidence-led rather than based on intuitions, which research around  

the world has shown too often to be wrong. In the absence of any significant  

empirical  attention  to  this  question  by  Indian  criminologists,  we  cannot  

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assume that  severity  of  punishment  correlates  to  deterrence  to  an  extent  

which justifies the restriction of the most fundamental human right through  

the imposition  of  the  death penalty.  The goal  of  crime reduction can be  

achieved by better police and prosecution service to the same or at least to a  

great extent than by the imposition of the death penalty.  

In this respect, we may furthermore add here that in the most recent  

survey of research findings on the relation between the death penalty and  

homicide rates,  conducted for the United Nations in 1988 and updated in  

2002, it was stated:  

“… it is not prudent to accept the hypothesis that  capital punishment deters murder to a marginally  greater extent than does the threat and application  of  the  supposedly  lesser  punishment  of  life  imprisonment.” [See Roger Hood,  The Death Penalty:  A World- wide Perspective,  Oxford,  Clarendon Press,  third  edition, 2002, p. 230]

[See also Kennedy v. Lousiana (128 S. Ct. 2641)]

MITIGATING CIRCUMSTANCES

Determination,  as  to  what  would  be  the  rarest  of  rare cases,  is  a  

difficult task having regard to different legal principles involved in respect  

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thereof.  With  the  aforementioned  backdrop,  we  may  notice  the  

circumstances which, in our opinion, should weigh with us for not imposing  

the extreme penalty.

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 (supra), this Court did  

not lay down a firm law that in a case involving circumstantial evidence,  

imposition of death penalty not would 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  contra-distinguished  

from a case where the manner of  occurrence had no role to play.   Even  

where sentence of death is to be imposed on the basis of the circumstantial  

evidence,  the  circumstantial  evidence  must  be  such  which  leads  to  an  

exceptional case.  We must, however, add that in a case of this nature where  

the entire prosecution case revolves round the statement of an approver or  

dependant upon the circumstantial evidence, the prudence doctrine should be  

invoked.   For  the  aforementioned  purpose,  at  the  stage  of  sentencing  

evaluation of evidence would not be permissible, the courts not only have to  

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solely depend upon the findings arrived at for the purpose of recording a  

judgment of  conviction,  but  also consider  the  matter  keeping  in  view of  

evidences which have been brought on record on behalf of the parties and in  

particular the accused for imposition of a lesser punishment.  A statement of  

approver in regard to the manner in which crime has been committed vis-à-

vis the role played by the accused, on the one hand, and that of the approver,  

on the other, must be tested on the touchstone of the prudence doctrine

The  accused  persons  were  not  criminals.  They  were  friends.  The  

deceased was said to have been selected because his father was rich.  The  

motive,  if  any,  was  to  collect  some  money.  They  were  not  professional  

killers.  They  have  no  criminal  history.   All  were  unemployed  and  were  

searching for jobs.     

Further if age of the accused was a relevant factor for the High Court  

for not imposing death penalty on accused No. 2 and 3, the same standard  

should have been applied to the case of the appellant also who was only two  

years older and still  a young man in age. Accused Nos. 2 and 3 were as  

much a part of the crime as the appellant. Though it is true, that it was he  

who allegedly proposed the idea of kidnapping, but at the same time it must  

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not be forgotten that the said plan was only executed when all the persons  

involved gave their consent thereto.  

It must be noted that the discretion given to the court in such cases  

assumes onerous importance and its  exercise becomes extremely difficult  

because of the irrevocable character of death penalty.  One of the principles  

which we think is clear is that the case is such where two views ordinarily  

could be taken, imposition of death sentence would not be appropriate, but  

where  there  is  no  other  option  and  it  is  shown  that  reformation  is  not  

possible, death sentence may be imposed.   

Section 354(3) of the Code of Criminal Procedure requires that 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 thereof.

We  do  not  think  that  the  reasons  assigned  by  the  courts  below  

disclose  any  special  reason to  uphold  the  death  penalty.   The  discretion  

granted to the courts must be exercised very cautiously especially because of  

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the irrevocable character to death penalty.  Requirements of law to assign  

special reasons should not be construed to be an empty formality.    

We have previously noted that the judicial principles for imposition of  

death penalty are far from being uniform. Without going into the merits and  

demerits of such discretion and subjectivity, we must nevertheless reiterate  

the basic principle, stated repeatedly by this Court, that life imprisonment is  

the  rule  and  death  penalty  an  exception.  Each  case  must  therefore  be  

analyzed and the appropriateness of punishment determined on a case-by-

case basis with death sentence not to be awarded save in the ‘rarest of rare’  

case where reform is not possible. Keeping in mind at least this principle we  

do not  think  that  any of  the  factors  in  the  present  case  discussed above  

warrants  the award of  the death penalty.  There are no special  reasons to  

record  the  death  penalty  and  the  mitigating  factors  in  the  present  case,  

discussed previously,  are,  in our opinion, sufficient  to place it  out of the  

“rarest of rare” category.  

For the reasons aforementioned, we are of the opinion that this is not a  

case  where  death  penalty  should  be  imposed.   The  appellant,  therefore,  

instead of being awarded death penalty, is  sentenced to undergo rigorous  

imprisonment  for  life.   Subject  to  the  modification  in  the  sentence  of  

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appellant (A1) mentioned hereinbefore, both the appeals of the appellant as  

also that of the State are dismissed.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; May 13, 2009

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