VASANTA SAMPAT DUPARE Vs. STATE OF MAHARASHTRA

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

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

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

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

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

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

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

“(a) The normal rule is that the offence of murder shall be punished with
the sentence of life imprisonment. The Court can depart from that rule and
impose the sentence of death only if there are special reasons for doing
so. Such reasons must be recorded in writing before imposing the death
sentence.

(b) While considering the question of sentence to be imposed for the
offence of murder under Section 302 of the Penal Code, the Court must have
regard to every relevant circumstance relating to the crime as well as the
criminal. If the Court finds, but not otherwise, that the offence is of an
exceptionally depraved and heinous character and constitutes, on account of
its design and the manner of its execution, a source of grave danger to the
society at large, the Court may impose the death sentence.”

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

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

42. In the said case, the Court has also held thus: (Bachan Singh case3,
SCC p. 751, para 209)
“209. … It is, therefore, imperative to voice the concern that courts,
aided by the broad illustrative guidelines indicated by us, will discharge
the onerous function with evermore scrupulous care and humane concern,
directed along the highroad of legislative policy outlined in Section
354(3) viz. that for persons convicted of murder, life imprisonment is the
rule and death sentence an exception. A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed.”

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

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

45. After so enumerating, the propositions that emerged out from Bachan
Singh3 were culled out which are as follows: (Machhi Singh case5, SCC p.
489, para 38)
“38. … The following propositions emerge from Bachan Singh case3:
‘(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
“offender” also require to be taken into consideration along with the
circumstances of the “crime”.
(iii) Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of
the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is exercised.”

46. Thereafter, the three-Judge Bench opined that to apply the said
guidelines, the following questions are required to be answered: (Machhi
Singh case5, SCC p. 489, para 39)
“(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?”
In the said case, the Court upheld the extreme penalty of death in respect
of three accused persons.”

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

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

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

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

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

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

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

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

Similarly as regards Jagir Singh it was observed,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

aforesaid Judgments, primarily dissect these principles into two different
compartments—one being the “aggravating circumstances” while the other
being the “mitigating circumstances”. The court would consider the
cumulative effect of both these aspects and normally, it may not be very
appropriate for the court to decide the most significant aspect of
sentencing policy with reference to one of the classes under any of the
following heads while completely ignoring other classes under other heads.
To balance the two is the primary duty of the court. It will be appropriate
for the court to come to a final conclusion upon balancing the exercise
that would help to administer the criminal justice system better and
provide an effective and meaningful reasoning by the court as contemplated
under Section 354(3) Cr.P.C.

Aggravating circumstances

(1) The offences relating to the commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed by the person having a
substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the
commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis
in the public at large and was committed in a public place by a weapon or
device which clearly could be hazardous to the life of more than one
person.
(4) The offence of murder was committed for ransom or like offences to
receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving
inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully
carrying out his duty like arrest or custody in a place of lawful
confinement of himself or another. For instance, murder is of a person who
had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of
murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the
trust of relationship and social norms, like a child, helpless woman, a
daughter or a niece staying with a father/uncle and is inflicted with the
crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity
and meanness.
(12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only
the judicial conscience but even the conscience of the society.

Mitigating circumstances

(1) The manner and circumstances in and under which the offence was
committed, for example, extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a
determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime
again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and
the defect impaired his capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental
imbalance in that given situation like persistent harassment or, in fact,
leading to such a peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he was morally
justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view
that the crime was not committed in a preordained manner and that the death
resulted in the course of commission of another crime and that there was a
possibility of it being construed as consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole
eyewitness though the prosecution has brought home the guilt of the
accused.
77. While determining the questions relatable to sentencing policy, the
court has to follow certain principles and those principles are the
loadstar besides the above considerations in imposition or otherwise of the
death sentence.

Principles

(1) The court has to apply the test to determine, if it was the “rarest of
rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e.
life imprisonment would be completely inadequate and would not meet the
ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be
cautiously exercised having regard to the nature and circumstances of the
crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality
and inhumanity, etc.) in which the crime was committed and the
circumstances leading to commission of such heinous crime.

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

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

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

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

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

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

..………………………J.
(Dipak Misra)

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

…………..……..……..J.
(Uday Umesh Lalit)

New Delhi,
May 03, 2017

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

[2] (2014) 9 SCC 737
[3]

[4] (2015) 1 SCC 253
[5]

[6] (1980) 2 SCC 684
[7]

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

[10](1983) 3 SCC 470
[11]

[12] (1977) 3 SCC 68
[13]

[14](1989) 3 SCC 5
[15]

[16] (1991) 4 SCC 341
[17]

[18] (1989) 3 SCC 33
[19]

[20] (2016) 9 SCALE 600
[21]

[22] (1977) 3 SCC 218
[23]

[24] (2011) 13 SCC 706
[25]

[26] (2012) 4 SCC 257

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