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REPORTABLE

IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION

REVIEW PETITION (CRL.) NOS. 401-402 OF 2012 IN

CRIMINAL APPEAL NOS. 185-186 OF 2011

Sudam @ Rahul Kaniram Jadhav …Petitioner

The State of Maharashtra …Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

The instant review proceedings pertain to Review Petition

(Cri.) No. D19901 of 2012 seeking to review the final judgment

and order dated 04.07.2011 passed by this Court in Criminal

Appeal Nos. 185-86 of 2011 dismissing the appeal filed by the

Review Petitioner (in short “the Petitioner”) and confirming his

conviction under Sections 201 and 302 of the Indian Penal Code

(in  short,  “IPC”).  Vide  the  impugned  judgment,  this  Court

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upheld  the  sentence  under  Section  201,  IPC  and  the  death

sentence under Section 302, IPC imposed upon the Petitioner.

2. The brief facts pertaining to this case are as follows:

2.1 On the morning of 21.08.2007, the bodies of four children

were discovered floating in  the village pond (known as  Juna

Pani talav) in the village of Rupla Naik Tanda, District Nanded,

Maharashtra. A male child aged six years along with a female

child aged ten years were found tied together, and a female

child aged ten months along with a male child of two to four

years, were found tied separately. The body of an unidentified

woman with a mangalsutra on her neck was also subsequently

discovered below a nearby boulder by the police. The deceased

persons were  eventually  identified as  Anita,  the daughter  of

one Maroti Madavi, the two children born to her from her first

husband and the two children born to her from the Petitioner.

The Petitioner was found by the police on 24.08.2007, but is

alleged  to  have  absconded  subsequently,  and  was  arrested

only on 22.09.2007.

3. The investigation revealed that  the deceased Anita  had

been living with  the Petitioner  as  his  wife  and had come to

know about his marriage with PW-6 Muktabai.  The deceased

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was opposed to this relationship, which led to a serious dispute

amongst the three of them. The Petitioner allegedly divorced

PW-6, and agreed to pay her a sum of Rs. 15,000/-, which the

deceased Anita promised to bear. Thereafter, PW-6 went to her

village,  and the  Petitioner,  the  deceased  Anita  and her  four

children came to the village of Juna Pani, where, because of the

strained relationship with his wife, the Petitioner murdered her

and the four children by strangulating them.

4.  The  principal  evidence  put  forth  by  the  prosecution

against the Petitioner includes the motive of the accused, the

evidence put forth by PW-8 Prahlad that the deceased were last

seen with the Petitioner, and that of PW-6 Muktabai and PW-9

Ishwar with respect to the extra-judicial  confessions made to

them by the Petitioner. The Trial Court convicted the Petitioner

for  the  offences  stated  supra  on  the  basis  of  the  last  seen

circumstance  as  deposed  to  by  PW-8;  the  motive  of  the

accused as deposed to by PW-5, the mother of the deceased

Anita;  the extra-judicial  confession made by the Petitioner to

PW-9 Ishwar; the fact that the Petitioner had absconded after

the commission of the offence; and his failure to explain the

circumstances leading to the homicidal deaths of the deceased.

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The  High  Court  confirmed  the  conviction  and  sentence  as

awarded by the Trial  Court,  including the sentence of death,

holding that  the  case  at  hand falls  into  the  category of  the

rarest  of  rare  cases  warranting  punishment  with  death.  This

Court, in appeal, confirmed the same.  

5.  Review  Petition  (Cri.)  No.  D19901  of  2012  filed  by  the

Petitioner against the above judgment and order of this Court

was dismissed by circulation vide order  dated 26.07.2012. A

criminal  miscellaneous  petition  was  filed  by  the  Petitioner

seeking reopening of this review petition, placing reliance on

the  decision  of  this  Court  in  Mohd.  Arif  @  Ashfaq v.

Registrar, Supreme Court of India, (2014) 9 SCC 737, which

held that in light of Article 21 of the Indian Constitution, review

petitions arising out of appeals where the death sentence had

been affirmed were required to be heard orally by a 3-Judge

Bench,  and  specifically  permitted  the  reopening  of  review

petitions  in  all  cases  where  review  petitions  had  been

dismissed by circulation. This Court subsequently recalled the

order  dated  26.07.2012  passed  in  Review  Petition  No.

D19901/2012 and permitted the re-hearing of such petition in

open Court.

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6. Learned  counsel  for  the  Petitioner,  Ms.  Nitya

Ramakrishnan,  argued  for  the  acquittal  of  the  Petitioner,

contending  that  there  are  various  infirmities  in  how  the

material  on  record  has  been  appreciated  by  the  Courts,  in

addition  to  highlighting  errors  apparent  on  the  face  of  the

record. The broad thrust of her argument was that the entire

case was built on circumstantial evidence, i.e. the “last seen”

evidence,  two  purported  extra-judicial  confessions,  and  the

motive of the Petitioner,  all  of which were erroneously relied

upon.  

6.1 Thus,  she virtually seeks a re-appreciation of  the entire

evidence,  submitting  that  it  is  permissible  to  raise  any

additional  ground  at  the  stage  of  review.  To  make  this

submission, learned Counsel relied on the permission given by

this  Court  to  the  petitioner  in  Md.  Arif @  Ashfaq  v.

Registrar,  Supreme  Court  of  India,  vide  order  dated

19.01.2016  passed  in  Review  Petition  (Criminal)  No.  692  of

2015 in Writ Petition (Criminal) No. 77 of 2014, to raise any

additional  ground  as  may  be  legally  permissible  in  the  re-

hearing of his review petition. The relevant observation from

the said order is reproduced below:

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“We permit the petitioner to raise all such additional grounds in support of the said review petition as may be legally permissible to him.”

6.2 We would like to deal with this argument raised by learned

Counsel  for  the Petitioner  at  this  juncture itself.  It  has been

well-settled by a catena of decisions of this Court that review

proceedings  cannot  be  treated  as  an  appeal  in  disguise.

Particularly,  in  criminal  proceedings,  the  scope  of  review

jurisdiction of this Court is guided by Article 137 of the Indian

Constitution as well as Order XL Rule 10 of the Supreme Court

Rules, 1966, which permit the Court to correct miscarriage of

justice caused by an error apparent on the face of the record. In

this regard, it would be fruitful to refer to the decision of this

Court in Vikram Singh v. State of Punjab, (2017) 8 SCC 518,

where the Court was re-hearing a review petition against the

award of  the death penalty  to  the review petitioner  therein,

pursuant  to  the  decision  in  Md.  Arif  @  Ashfaq  v. The

Registrar,  Supreme  Court (supra).  In  this  decision,  after

comprehensively explaining the scope of the review jurisdiction

of this Court in criminal proceedings and revisiting its earlier

decisions on this aspect, including  P.N. Eswara Iyer  v. The

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Supreme Court,  (1980)  2  SCR 889 and  Suthendraraja  v.

State, (1999) 9 SCC 323, this Court concluded as follows:

“23. In  view  of  the  above,  it  is  clear  that  scope, ambit and parameters of review jurisdiction are well defined.  Normally  in  a  criminal  proceeding,  review applications  cannot  be  entertained  except  on  the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137  is  wider  and  in  an  appropriate  case  can  be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of  the  accused  that  is  not  a  sufficient  ground  for review.  This  Court  shall  exercise  its  jurisdiction  to review  only  when  a  glaring  omission  or  patent mistake  has  crept  in  the  earlier  decision  due  to judicial fallibility.  There has to be an error apparent on the face of the record leading to miscarriage of justice  to  exercise  the  review  jurisdiction  under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice.” (emphasis supplied)

6.3 We  prefer  not  to  burden  this  judgment  with  further

discussion on this issue. Suffice it to say that there can be no

argument that this Court cannot re-appreciate evidence in its

entirety in the exercise of its review jurisdiction. Furthermore, it

is  evident  that  the  reference  to  “additional  grounds”  in  the

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observations  in  the  order  dated  31.10.2018  in  Md.  Arif @

Ashfaq v.  State (NCT of Delhi)  (supra) reproduced above

pertains to additional grounds which could have been raised by

the review petitioner  before this  Court  in  the exercise of  its

review jurisdiction and had not been raised when the review

petition had originally been filed before this Court.  

6.4 In fact, a reading of the entire order reveals that the Court

at  that  juncture  was  dealing  with  a  criminal  miscellaneous

application seeking that the scope of the permission granted by

this Court in Md. Arif @ Ashfaq v. The Registrar, Supreme

Court  (supra)  to  re-hear  review  petitions  dismissed  vide

circulation be extended to also include cases where a curative

petition had been dismissed vide circulation after the dismissal

of  review,  since this  category of  cases had been specifically

denied  the  relief  of  re-hearing  by  the  Court.  With  particular

regard  for  the  fact  that  the  petitioner  therein  was  the  only

person  to  be  denied  an  open  Court  hearing  due  to  this

limitation,  and  in  light  of  the  limited  grounds  on  which  a

curative petition could be filed, which meant that the rejection

of a review petition could never be completely reconsidered in

curative jurisdiction, this Court in its  order dated 31.10.2018

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extended the relief of re-hearing to dismissed curative petitions

as well. It was while doing so that the observations that have

been relied upon by learned Counsel for the Petitioner came to

be passed.

6.5 In  view of  the  above discussion,  we are constrained to

reject  the  contention  raised  by  learned  Counsel  for  the

Petitioner that the above observations have created a window

for this Court to re-appreciate the entire evidence on record

while  hearing  review  petitions.  The  submissions  of  learned

Counsel for the Petitioner have to be considered keeping the

above discussion in mind.  

7. With respect to the evidence for the circumstance of “last

seen”,  learned Counsel  led us through the evidence of PW-8

Prahlad  to  point  out  the  inherent  improbabilities  in  his

testimony, pointing out that he had testified that his statement

was recorded by the police on 19.8.2007, whereas the bodies of

the deceased were discovered only on 21.8.2007. She argued

that the Trial Court had erroneously supplied possible reasons

to  explain  this  incongruity,  which  went  to  the  root  of  the

matter,  since  PW-8  is  a  timeline  witness,  especially  in  the

absence of any re-examination in this regard.

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7.1 With regard to the evidence of PW-9 Ishwar, one of the

witnesses for the extra-judicial confessions, it was argued that

since his  statement  was only recorded on 30.11.2007,  there

was a high likelihood of concoction of evidence,  rendering it

unreliable.  She  also  contended  that  there  was  a  complete

absence of any semblance of a timeline in PW-9’s testimony,

which also materially contradicted the “last seen” testimony,

inasmuch as PW-9 deposed that he saw the Petitioner with his

wife and children four to five days before the purported extra

judicial confession was made.  

7.2 Coming to  the second extra judicial  confession,  learned

Counsel  pointed out  that  the High Court  and this  Court  had

erred  in  relying  on  the  testimony  of  PW-6  regarding  the

confession made by the Petitioner to her over a mobile phone

conversation, by ignoring the admission to the contrary made

in the cross-examination. The testimony of PW-6 pertaining to

the extra-judicial  confession had been correctly discarded by

the Trial Court on this basis. The Trial Court had further found

such  testimony  unreliable  due  to  non-corroboration  by  call

records. It was contended that the High Court and this Court

had  both  overlooked  this  aspect  and  wrongly  relied  on  this

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extra-judicial confession, and this Court had even gone on to

incorrectly  note  that  the  Trial  Court  had  relied  on  the

confession,  which  was an error  apparent  on the  face of  the

record.  

7.3 It  was  further  submitted  that  PW-13,  the  Investigation

Officer had deposed that he had not obtained the call records

of PW-9’s mobile (to which the Petitioner had allegedly made

calls and over which he had allegedly made the extra-judicial

confession  to  PW-6)  even  though  he  deposed  in  the  same

breath that he had called for the same but could not obtain

them. In such a situation, the Court was entitled to proceed on

the  basis  that  such  evidence  had  not  been  adduced  even

though it could have been, and on that basis draw an adverse

inference  against  the  prosecution  under  Section  114  of  the

Evidence Act, 1872.  

7.4 With  respect  to  the  motive,  it  was  submitted  that  the

motive for the commission of the offence was weak since the

dispute  between  the  Petitioner  and  the  deceased  Anita

regarding the Petitioner’s relationship with PW-6 Muktabai had

already been settled.

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7.5 She therefore argued that there was no reliable evidence

connecting the Petitioner to the crime, in the absence of direct

or forensic evidence.

7.6 On the aspect of sentencing, learned Counsel argued that

the Petitioner had no previous record of bad behaviour,  and

further  that  the  death  penalty  may  not  be  imposed  for  a

conviction  based  solely  on  circumstantial  evidence.  It  was

further  submitted  that  this  Court,  while  imposing  the  death

penalty, had travelled beyond the record to observe that the

face of the deceased had been crushed with a stone, which had

unfairly prejudiced the Court.

8.   Learned  counsel  for  the  Respondent,  i.e.  the  State  of

Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the

other hand, argued in favour of the judgments rendered by the

Courts.  In  particular,  he  stressed  that  even  if  part  of  the

testimony  of  PW-6  had  been  misread  by  the  Courts,  her

evidence against  the Petitioner  remained unshaken on other

aspects,  such  as  motive,  since  she  had  deposed  that  the

Petitioner  had  admitted  to  her  that  he  had  been  harassing

Anita. He also highlighted that as per the Post Mortem Report

(Exh.  P-43)  of  the  deceased  Anita,  as  spoken  to  by  the

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examining doctor PW-4, the probable cause of her death was

asphyxia due to throttling, and PW-4 had specifically denied the

possibility of self-strangulation.

8.1 On the aspect of sentencing, he argued that in light of the

menace posed to society, even if the death penalty were to be

commuted, a minimum mandatory sentence of 30 years must

be imposed upon the Petitioner.

9. We have perused the record of the case after hearing the

learned Counsel on either side.  

10. At the outset, it is important to note that the entire case of

the  prosecution  is  built  upon  circumstantial  evidence.  As

already mentioned supra,  this  Court,  in  appeal,  affirmed the

findings of  the Courts  below regarding the conviction of  the

Petitioner.  For  the  reasons  already  noted  above,  we  cannot

delve  into  the  submissions  of  either  party  that  pertain  to

appreciation  of  evidence  anew.  However,  we  deem  it

appropriate to briefly refer to the evidence on record, i.e. the

circumstance  of  the  Petitioner  being  last  seen  with  the

deceased as deposed by PW-8, the extra judicial confessions

made to PWs 6 and 9, and the motive of the Petitioner.

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11. The  “last  seen”  circumstance  is  spoken  to  by  PW-8

Prahlad, who deposed that on 19.08.2007, when he was at his

house, the Petitioner along with his wife and four children came

to his house and asked for water, and further that though he

requested the Petitioner to stay back, the Petitioner left with his

family.

12. PW-9  Ishwar’s  testimony  pertains  to  an  extra  judicial

confession,  as he deposed that  the Petitioner  had confessed

before him that he had strangulated the four children and the

deceased Anita to death, and thrown their bodies in the pond,

as Anita was harassing him.  

13. The deposition  of  PW-5,  Anusayabai,  the  mother  of  the

deceased Anita, as well as that of PW-6 Muktabai, is pertinent

with  respect  to  the  motive  of  the  Petitioner  to  commit  the

murders. As per PW-5, her daughter bore two children with her

first  husband  Anil  Gedam,  but  Anita  started  living  with  the

Petitioner  after  Anil  deserted  her.  PW-5  deposed  that  the

Petitioner had married PW-6 Muktabai, and that the Petitioner

had committed the murder of Anita and her children on account

of the dispute caused by the Petitioner’s marriage with PW-6.

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13.1 PW-6 Muktabai, in her turn, deposed that a few days

after her marriage with the Petitioner, while they were visiting

PW-6’s parental village, Anita had visited them, claiming that

the  Petitioner  was  her  husband  and  they  had  two  children

together,  and went  to  the Police Station with  the  Petitioner.

However,  only Anita returned,  saying that the Petitioner  had

run away, and subsequently stayed for a few days with PW-6. A

few days after Anita had left, the Petitioner returned to PW-6,

and revealed that Anita was harassing him, also admitting that

he had two children with her. He later got arrested and Anita

got him released. After a few days, Anita again confronted PW-

6 and the Petitioner, who offered to maintain both women, but

Anita was not amenable to the offer. The Petitioner then wrote

PW-6 a divorce, and Anita agreed to pay Rs. 15,000/- to PW-6.

14. We are of the considered opinion that there is no ground

for interference with any finding of the Courts with respect to

the appreciation of  the testimony relating to the “last seen”

circumstance, the extra judicial confession made to PW-9, and

the motive of the Petitioner.  

14.1 However, crucially, this Court, in appeal, also relied

upon the deposition of PW-6 with respect to the extra-judicial

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confession  made  to  her,  inasmuch  as  she  deposed  in  her

examination-in-chief  that the Petitioner had confessed to her

over  a  telephonic  call  that  he  had  murdered  the  deceased.

However, it is clear that the Court omitted to appreciate that

PW-6 had admitted in her cross-examination that the Petitioner

had not told her that he had murdered the deceased, which in

fact  was  a  reason  for  the  Trial  Court  to  not  rely  on  her

testimony.  Thus,  we find substance in  the submission of the

learned Counsel for the Petitioner that this Court committed an

error  apparent  on the  face of  the  record in  placing reliance

upon  the  extra  judicial  confession  allegedly  made  by  the

Petitioner before PW-6, by noting that such evidence had been

relied  upon  by  the  Courts  below,  when  in  fact  it  had  been

rightly rejected by the Trial Court.

15. There is yet another crucial aspect of the matter that we

must turn our attention to. We find strength in the submission

made  by  the  Counsel  for  the  Petitioner  that  this  Court,  in

determining  the  correctness  of  the  quantum  of  sentence

assessed  by  the  High  Court,  while  noting  that  the  offence

appeared  to  be  premeditated  and  well-planned,  erroneously

observed  that  the  Petitioner  had  crushed  the  face  of  the

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deceased  Anita  to  avoid  identification.  We  find  that  this

observation is unsupported by the medical evidence on record.

PW-4, the doctor who conducted the post-mortem (at Exh. P-

25) on Anita’s body, only deposed to the presence of contused

lacerated  wounds  on  her  face.  There  is  no  evidence  to  the

effect  that  her  face  was  marred  beyond  recognition  or  that

there appeared to be any attempt to do so. We find that this is

yet another error apparent on the face of the record.

16. Having found there have been errors apparent on the face

of the record in the appreciation of evidence by this Court in

appeal,  we  must  now  consider  the  effect  thereof  on  the

conviction  as  well  as  on  the  sentence  awarded.   We find it

worth  repeating  that  we  do  not  seek  to  re-appreciate  the

evidence on record, and merely wish to determine whether the

evidence as assessed by this Court in appeal, keeping aside the

extra-judicial  confession to PW-6,  was sufficient to affirm the

finding of guilt and the award of the punishment of death to the

Petitioner.

17. As  noted  previously,  the  evidence  relied  upon  in  the

instant case is  purely circumstantial,  including the motive to

commit the offence, the circumstance of the deceased being

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last seen with the Petitioner, and two extra-judicial confessions.

Thus, keeping aside the extra-judicial confession to PW-6, it is

evident that  evidence as to  the circumstance of  motive,  the

“last  seen”  circumstance  as  well  as  one  extra-judicial

confession still survive. It is our considered view that the chain

of circumstances establishing the guilt of the Petitioner beyond

reasonable doubt is not materially affected even if we discard

one of the two extra-judicial confessions. Thus, we find that this

Court  rightly  affirmed  the  conviction  of  the  Petitioner  under

Sections  302 and 201,  IPC,  and there  is  no cause for  us  to

interfere with such finding of guilt in the exercise of our review

jurisdiction.

18. We  must  now  turn  our  attention  to  the  question  of

whether the evidence on record, apart from the extra-judicial

confession to PW-6 and the observation pertaining to the facial

injuries of the deceased Anita, is sufficient to affirm the death

sentence awarded to the Petitioner.  

18.1 At this juncture, it must be noted that though it may

be a relevant consideration in sentencing that the evidence in a

given case is circumstantial in nature, there is no bar on the

award  of  the  death  sentence  in  cases  based  upon  such

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evidence  (see  Swamy  Shraddananda  v. State  of

Karnataka,  (2007)  12  SCC  288;  Ramesh  v. State  of

Rajasthan, (2011) 3 SCC 685).

18.2 In such a situation, it is up to the Court to determine

whether  the  accused  may  be  sentenced  to  death  upon  the

strength  of  circumstantial  evidence,  given  the  peculiar  facts

and  circumstances  of  each  case,  while  assessing  all  the

relevant aggravating circumstances of the crime, such as its

brutality,  enormity  and  premeditated  nature,  and  mitigating

circumstances  of  the  accused,  such  as  his  socio-economic

background, age, extreme emotional disturbance at the time of

commission of the offence, and so on.

18.3 In this regard, it would also be pertinent to refer to

the  discussion  in  Ashok  Debbarma  v. State  of  Tripura,

(2014)  4  SCC  747,  where  this  Court  elaborated  upon  the

concept of “residual doubt”—which simply means that in spite

of  being  convinced  of  the  guilt  of  the  accused  beyond

reasonable doubt, the Court may harbour lingering or residual

doubts in its mind regarding such guilt. This Court noted that

the existence of residual doubt was a ground sometimes urged

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before  American  Courts  as  a  mitigating  circumstance  with

respect to imposing the death sentence, and noted as follows:

“33. In California v. Brown [93 L Ed 2d 934 : 479 US 538 (1987)] and other cases, the US courts took the  view,  “residual  doubt”  is  not  a  fact  about  the defendant or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists  somewhere  between  “beyond  a  reasonable doubt”  and  “absolute  certainty”.  The  petitioner's “residual doubt” claim is that the States must permit capital sentencing bodies to demand proof of guilt to “an  absolute  certainty”  before  imposing  the  death sentence.  Nothing  in  our  cases  mandates  the imposition  of  this  heightened  burden  of  proof  at capital sentencing.

34. We  also,  in  this  country,  as  already indicated,  expect the prosecution to prove its  case beyond  reasonable  doubt,  but  not  with  “absolute certainty”.  But, in between “reasonable doubt” and “absolute  certainty”,  a  decision-maker's  mind  may wander,  possibly  in  a  given  case  he  may  go  for “absolute certainty” so as to award death sentence, short  of  that  he  may  go  for  “beyond  reasonable doubt”. Suffice it to say, so far as the present case is concerned,  we  entertained  a  lingering  doubt  as  to whether the appellant alone could have executed the crime  single-handedly,  especially  when  the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime  perpetrated  by  a  group  of  people  in  an extremely  brutal,  grotesque and dastardly  manner, could not have been thrown upon the appellant alone without  charge-sheeting  other  group  of  persons numbering around 35. All the element test as well as

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the residual doubt test, in a given case, may favour the  accused,  as  a  mitigating  factor.”  (emphasis added)

18.4 While  the  concept  of  “residual  doubt”  has

undoubtedly not been given much attention in Indian capital

sentencing jurisprudence, the fact remains that this Court has

on several occasions held the quality of evidence to a higher

standard for  passing the irrevocable  sentence of  death than

that which governs conviction,  that is  to say, it  has found it

unsafe to award the death penalty for convictions based on the

nature of the circumstantial  evidence on record.  In fact,  this

question was given some attention in a recent decision by this

Bench, in Md. Mannan @ Abdul Mannan v. State of Bihar,

R.P. (Crl.) No. 308/2011 in Crl. A. No. 379/2009 (decision dated

February  14,  2019),  where  we found it  unsafe  to  affirm the

death penalty awarded to the accused in light of the nature of

the  evidence  on  record,  though  the  conviction  had  been

affirmed on the basis of circumstantial evidence.  

18.5 In  Md.  Mannan  (supra),  this  Court  affirmed  the

proposition  that  the  quality  of  evidence  is  a  relevant

circumstance  in  the  sentencing  analysis,  referring  to  the

following  observations  of  this  Court  in  Santosh  Kumar

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Satishbhushan Bariyar v. State of Maharashtra, (2009) 6

SCC 498:

“56. At this stage, Bachan Singh [(1980) 2 SCC 684 : 1980  SCC  (Cri)  580]  informs  the  content  of  the sentencing hearing. The court must play a proactive role to record all relevant information at this 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 offender. This issue was also raised in the 48th Report of the Law Commission.” (emphasis added)

18.6 The  Court  also  relied  on  Ramesh  v. State  of

Rajasthan  (supra) and Ram Deo Prasad v. State of Bihar,

(2013) 7 SCC 725, which follow Bariyar (supra) in this respect,

and  referred  to  Sushil  Sharma  v. State  (NCT  of  Delhi),

(2014) 4 SCC 317, Kalu Khan v. State of Rajasthan, (2015)

16  SCC  492  and  Sebastian  @  Chevithiyan  v. State  of

Kerala,  (2010) 1 SCC 58, where a similar position has been

adopted.

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18.7 We find it pertinent to observe that the above trend

only affirms the “prudence doctrine” enunciated by this Court

in  Bachan Singh  v. State of Punjab, (1980) 2 SCC 684. In

this regard, we may refer to the following observations made in

Bariyar (supra):

“149. Principle  of  prudence,  enunciated  by Bachan Singh [(1980)  2  SCC  684  :  1980  SCC  (Cri)  580]  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  (sic)/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.”

18.8 The Court in  Bariyar (supra) further observed that

the  irrevocable  punishment  of  death  must  only  be  imposed

when there is no other alternative, and asserted that in cases

resting  on  circumstantial  evidence,  the  doctrine of  prudence

should be invoked:

“167. The entire prosecution case hinges on the evidence  of  the  approver.  For  the  purpose  of imposing death penalty, that factor may have to be kept  in  mind.  We  will  assume  that  in  Swamy Shraddananda (2), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But,  even  in  relation  thereto  the  question  which

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would  arise  would  be  whether  in  arriving  at  a conclusion  some  surmises,  some  hypothesis  would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on  the  basis  of  circumstantial  evidence,  the circumstantial evidence must be such which leads to an exceptional case.

168. We must, however, add that  in a case of this  nature  where  the  entire  prosecution  case revolves  round the statement  of  an approver  or  is dependent  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  solely  depend  upon  the findings  arrived  at  for  the  purpose  of  recording  a judgment of conviction, but also consider the matter keeping  in  view  the  evidences  which  have  been brought  on  record  on  behalf  of  the  parties  and  in particular  the  accused  for  imposition  of  a  lesser punishment...”  

(emphasis added)

18.9 In light of the above discussion, we find it appropriate

to gauge,  in  the exercise of  our  review jurisdiction,  whether

there is a reasonable probability that this Court, in appeal, on

the strength of the evidence on record as it stands, without the

errors  apparent  on  the  face  of  the  record,  would  have

concluded  that  the  balance  of  aggravating  and  mitigating

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circumstances lies in favour of preserving the Petitioner’s life.

Such probability would be sufficient to set aside the sentence of

death  affirmed  by  this  Court,  in  light  of  the  doctrine  of

prudence, which really only reflects the dictum of this Court in

Bachan Singh (supra) that the Court must keep in mind while

awarding the punishment of death that the alternative option,

i.e.  imposition  of  life  imprisonment,  must  be  unquestionably

foreclosed.

19. We make it clear that we do not wish to re-enter into an

appreciation of the aggravating and mitigating circumstances

relied upon by the Courts until this stage to award the death

sentence to the Petitioner. However, before proceeding further,

we  would  like  to  briefly  revisit  the  sentencing  assessment

already  done  by  this  Court  in  appeal.  While  arriving  at  the

conclusion that the instant case fell  into the category of the

rarest  of  rare  cases,  this  Court  took  into  account  the

premeditated nature of the crime, and its brutal and barbaric

nature,  observing that  the same was sufficient  to  shock  the

collective conscience of the society. The Court also opined that

the  Petitioner  was  a  menace  to  society  and  could  not  be

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reformed, and that lesser punishment would expose society to

peril at his hands.

20. Evidently,  even  the  fact  that  the  evidence  was

circumstantial  in  nature  did  not  weigh  very  heavily  on  the

Court’s  mind,  let  alone  the  strength  and  nature  of  the

circumstantial  evidence.  Be that  as it  may,  we find that  the

material  on record is  sufficient  to  convince the Court  of  the

Petitioner’s guilt beyond reasonable doubt; however, the nature

of  the  circumstantial  evidence  in  this  case  amounts  to  a

mitigating circumstance significant enough to tilt the balance of

aggravating  and  mitigating  circumstances  in  the  Petitioner’s

favour, keeping in mind the doctrine of prudence. Moreover, it

is  also  possible  that  the incorrect  observations  pertaining to

Anita’s facial injuries further led the Court to conclude in favour

of imposing the death sentence on the Petitioner. Thus, we are

of  the  considered  opinion  that  there  was  a  reasonable

probability that this Court would have set aside the sentence of

death in appeal, since the only surviving evidence against the

Petitioner herein pertains to his motive to commit the crime,

the  circumstance  of  “last  seen”  and  a  solitary  extra-judicial

confession.  In  other  words,  it  cannot  be  said  that  the

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punishment of life imprisonment is unquestionably foreclosed

in the instant case, in spite of the gravity and barbarity of the

offence.  

21. We are thus compelled to conclude that the award of the

death penalty in the instant case, based on the evidence on

record, cannot be upheld.  

22. At  the  same time,  we conclude that  a  sentence  of  life

imprisonment  simpliciter  would  be  inadequate  in  the  instant

case,  given  the  gruesome  nature  of  the  offence,  and  the

menace posed to society at large by the Petitioner, as evinced

by  the  conduct  of  the  Petitioner  in  jail.  As  per  the  report

submitted  in  pursuance  of  the  order  of  this  Court  dated

31.10.2018, it has been brought on record that the conduct of

the Petitioner in jail has been unsatisfactory, and that he gets

aggressive  and  indulges  in  illegal  activities  in  prison,

intentionally abusing prisoners and prison staff and provoking

fights with other prisoners. Two FIRs have also been registered

against  the  Petitioner  for  abusing  and  threatening  the

Superintendent of the Nagpur Central Prison.

22.1 As  this  Court  has  already  held  in  a  catena  of

decisions,  by way of  a via  media between life  imprisonment

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simpliciter and the death sentence, it may be appropriate to

impose a restriction on the Petitioner’s right to remission of the

sentence of life imprisonment, which usually works out to 14

years in prison upon remission. We may fruitfully refer to the

decisions  in  Swamy  Shraddhananda  (2)  v. State  of

Karnataka,  (2008)  13  SCC 767  and  Union of  India  v. V.

Sriharan, (2016) 7 SCC 1, in this regard.  We therefore direct

that the Petitioner shall remain in prison for the remainder of

his life.   

23. In light of the above discussion, the review petitions are

allowed to the extent that the sentence of death awarded to

the Petitioner is commuted to imprisonment for the remainder

of his life sans any right to remission.

..........................................J. (N.V. Ramana)

...........................................J. (Mohan M. Shantanagoudar)

............................................J. (Indira Banerjee)

New Delhi; October 01, 2019.