TMI Blog2011 (9) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... States Supreme Court in view of the existence of 'due process clause' in the United States Constitution. The learned Judges quoting from the commentary by Ratanlal's, Law of Crimes, (Twenty-second edition), referred to certain mitigating and aggravating circumstances, but opined that the said list is not exhaustive. However, the aforesaid position substantially changed with the introduction of a changed sentencing structure under the present Code of Criminal Procedure, 1973. If we compare the 1898 Code with 1973 Code, we would discern lot of changes between the two Codes in sentencing structure. The most significant change brought about by the incorporation of the recommendation of the 41st Law Commission (supra), is the giving of an opportunity of hearing to the accused on the question of sentence. This is the incorporation of the great humanizing principle of natural justice and fairness in procedure in the realm of penology. The trial of an accused culminating in an order of conviction essentially relates to the offence and the accused under 1898 Code did not get any statutory opportunity to establish and prove in such trial the mitigating and other extenuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , following the Bachan Singh ratio, held death sentence cannot be given if there is any mitigating circumstance in favour of the accused. All circumstances of the case should be aggravating The concept of 'rarest of rare' which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty. The ratio in Bachan Singh [ 1980 (5) TMI 112 - SUPREME COURT] has received approval by the international legal community and has been very favourably referred to by David Pannick in 'Judicial Review of the Death Penalty: Duckworth' We hold that death sentence cannot be inflicted on the Appellant since the dictum of Constitution Bench in Bachan Singh [ 1980 (5) TMI 112 - SUPREME COURT] is that the legislative policy in Section 354(3) of 1973 Code is that for person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration. Bachan Singh (supra) further mandates that in considering the question of sentence the Court must show a real and abiding concern for the dignity of human life which must postulates resistance to taking l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neighbour and one Mr. Negi (not examined as a witness) were present in the gathering and told the police officers that the assailant had locked himself in a room on the second floor of House No. 2/129 Subhash Nagar. The officers climbed up the staircase and reached the second floor and knocked the door. The man inside did not oblige. The three police officers had a peep inside through the ventilator above the door and saw the body of a male child, smeared with blood and the neck badly cut. Blood was splattered all over the room. They had no option but to break open the door and apprehend the man inside who was Rajesh Kumar, the Appellant. 7. Inspector Ram Chander PW-32, the SHO of P.S. Rajouri Garden, was given the information about a man killing two children on the second floor of House No. 2/129 Subhash Nagar. He reached the house and by that time the Appellant had been apprehended by ASI Jagpal Singh, HC Naresh and Const. Sukhbir. 8. On learning that Harshit, the younger son had been removed to Chanan Devi Hospital, Inspector Ram Chander went to the hospital and learnt that Harshit was in an unconscious state. He collected the MLC Ex.PW-8/A of Harshit and returned to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and saw that her son was being held from his legs by the Appellant who was hitting the child on the floor. Her other son was sleeping on the bed in the same room. She snatched her son from the Appellant and rushed to Pinki's house and handed over her unconscious son to Pinki and rushed back, by which time the Appellant had bolted the door. She raised an alarm. She heard her son crying Ma Ma.. Suddenly the cries died down. By that time her neighbour Pritam Singh and Bahadur as also a few other persons gathered. The police arrived and a police person climbed a table and through a ventilator saw the dead body of her son and the Appellant standing nearby. They pushed and opened the door. She saw her son with his throat slit. A piece of glass, stained with blood, was lying on the chest of her son. The dressing table glass was broken. The walls were stained with blood. 15. PW-1 was cross-examined and she admitted that there was no quarrel between her husband and the Appellant qua the demand of any money, but volunteered that the Appellant used to demand money from her husband. 16. Mukesh Sethi PW-2, the husband of PW-1, deposed that on the day of the incident i.e. 28.7.2003, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not put the case in the category of the rarest of the rare cases, attracting the penalty of death. Listing the mitigating circumstances in this case, the learned Counsel urged that there are several of them. The first is that the Appellant is a first time offender. The second is that he has two sons, a wife and a widowed mother to support. The third is the young age of the Appellant who was aged 37 years when he committed the crime. The fourth is the chance of the Appellant's rehabilitation in the society being not ruled out. The fifth, which is a corollary of the fourth is, that it cannot be said that the Appellant is a continuing threat to the society. 24. The learned Additional Solicitor General appearing on behalf of the State urged that the facts and circumstances of this case clearly bring it within the rarest of rare case and warrants the imposition of death sentence. He argued that the Appellant killed two children, one of which was 8 months old and the other was 41/2 years of age, who were obviously unarmed and innocent and incapable of giving any provocation to the Appellant. 25. The learned Additional Solicitor General also contended that the killing of childre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a widowed mother to support. The third is the fact that financial hardship created stress in the mind compelling the Appellant to commit the crime. The fourth is the young age of the Appellant who was aged 37 years when he committed the crime. The fifth is the chance of the Appellant's rehabilitation in the society being not ruled out. 31. In para 79 of the impugned judgment, the High Court has noted the aggravating circumstances. The first aggravating circumstance which the High Court noted is the brutal, diabolical and dastardly nature of assault by the Appellant on the two children. The second aggravating circumstance is the trauma produced on the mother of children. The third aggravating circumstance is that the victims are innocent children. The fourth aggravating circumstance is breach of trust by the Appellant. The Appellant wanted P.W.1, the mother of the children, to cook food for him and the mother went to the kitchen giving the younger child to the Appellant, trusting that no harm would be caused to the child but that trust was breached. The fifth aggravating circumstance was the close relationship between the Appellant and the victims. The sixth aggravatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result of this amendment, which came into effect from 1st January 1956, it was no longer necessary for a Court to record in its judgment, in case of conviction in connection with an offence punishable with death, any reason for not imposing the death sentence. 38. With the functioning of this Court under the Constitution, several cases of death sentence came before this Court from 1950 onwards. But reference to extenuating or mitigating circumstances in a case of death penalty was made possibly for the first time by this Court in the case of Nawab Singh v. The State of Uttar Pradesh (AIR 1954 SC 278). In that case it was urged that for delay of execution, the death sentence should be commuted to one for transportation of life. This Court rejected the said argument holding inter-alia that it is a matter primarily for the consideration of local Government. This Court, however, opined that in a proper case an inordinate delay in the execution of sentences may be regarded as a ground for commutation. However, this Court held that in the facts of that case murder was a cruel and deliberate one and there were no extenuating circumstances. 39. After the amendment of 1898 Code, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying down any standards for exercise of such discretion. However, the Court found that such discretion is liable to be corrected by superior courts, but the court did not find that conferment of such discretion on the judges was unconstitutional. 44. The Constitution Bench in Jagmohan Singh (supra) however felt it difficult to follow the ratio of United States Supreme Court in William Henry Furman v. State of Georgia reported in (1972) 408 US 238 , as this Court found that our Constitution does not have a provision like the Eighth Amendment of the Constitution of United States. This Court also held in Jagmohan Singh (supra) that the test of reasonableness cannot be applied by this Court in the same manner as is done by the United States Supreme Court in view of the existence of 'due process clause' in the United States Constitution (see para 12 at page 27 of the report). The learned Judges quoting from the commentary by Ratanlal's, Law of Crimes, (Twenty-second edition), referred to certain mitigating and aggravating circumstances in para 22 at page 32 of the report, but opined that the said list is not exhaustive (para 23 at page 32 of the report). 45. In paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded a set of new provisions for governing Trials before a Court of sessions . With regard to Section 309 of the 1898 Code, the Law Commission recommended that hearing of the accused was most desirable before passing any sentence against him. This recommendation was accepted and incorporated while enacting Section 235 Code of Criminal Procedure in 1973 Code within Chapter XVIII of the same under the heading Trial before a Court of Sessions . 50. Section 235 Code of Criminal Procedure reads as follows: 235. Judgment of acquittal or conviction. - (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. 51. The most significant change brought about by the incorporation of the recommendation of the Law Commission (supra), is the giving of an opportunity of hearing to the accused on the question of sentence. This is the incorporation of the great humanizing principle of natural justice and fairness in procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sentence of death, the special reasons for such sentence. (4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under Section 117 or Sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision. 53. The importance of Section 235(2) of 1973 Code has been explained by this Court in several decisions and its importance can hardly be overemphasized in a case where prosecution demands the imposition of death penalty and the court awards the same. 54. In Santa Singh v. State of Punjab (1976) 4 SCC 190 this Court held that this new provision is in consona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the accused ? By referring to various aspects and also the opinion expressed by Law Commission in its Forty-eighth report, Bhagwati, J. (as His Lordship then was) opined that the hearing contemplated under Section 235(2) is not confined merely to oral submissions but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence. However, there was a note of caution that in the name of such hearing, the court proceedings should not be unduly protracted. 58. This Court held in Santa Singh (supra) that non-compliance with such hearing is not a mere irregularity curable under Section 465 of the 1973 Code. This Court speaking through Bhagwati, J. (as His Lordship then was) emphasized that this legal provision under our constitutional values has acquired new dimension and must reflect new trends in penology and sentencing procedures so that penal laws can be used as a tool for reforming and rehabilitating criminals and smoothening out the uneven texture of the social fabric and not merely as a weapon for protecting the hegemony of one class over the other (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formality. This Court further held that in such hearing exercise the accused should be given a real and effective opportunity to place his antecedents, social and economic background etc. before the court, for the court to take a fair decision on sentence as otherwise the sentence would be vulnerable. 62. The Court therefore opined: 10....We think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.... (para 10, page 21 of the report) 63. Therefore, it is clear from the purpose of Section 235(2) as explained in the aforesaid cases, that the object of hearing under Section 235(2) being intrinsically and inherently connected with the sentencing procedure, the provision of Section 354(3) which calls for recording of special reason for awarding death sentence must be read conjointly with Section 235(2) of 1973 Code. 64. This Court is of the opinion that special reasons can only be validly recorded if an effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 and several other decisions. 69. After considering all these Constitution Bench decisions of this Court, the learned Judges held that in the evolving mosaic of our Constitutional Jurisprudence, specially after the decision of this Court in Maneka Gandhi (supra), Article 21 of the Constitution which guarantees life and personal liberty has to be interpreted differently. 70. Article 21 as enacted in our Constitution reads as under: No person shall be deprived of his life or personal liberty except according to procedure established by law. 71. But this Court in Bachan Singh (supra) held that in view of the expanded interpretation of Article 21 in Maneka Gandhi (supra), it should read as follows: 136....No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law. 72. In the converse positive form, the expanded Article will read as below: A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. (See para 136 page 730 of the report) 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, nor cruel and unusual punishments inflicted. The English Bill of Rights drafted a century ago postulates, That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 77. Our Constitution does not have a similar provision but after the decision of this Court in Maneka Gandhi's case (supra) jurisprudentially the position is virtually the same and the fundamental respect for human dignity underlying the Eighth Amendment has been read into our jurisprudence. 78. Until the decision was rendered in Maneka Gandhi (supra), Article 21 was viewed by this Court as rarely embodying the Diceyian concept of rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example given by Justice S.R. Das in his judgment in A.K. Gopalan (supra) that if the law provided the Bishop of Rochester 'be boiled in oil' it would be valid under Article 21. But after the decision in Maneka Gandhi (supra) which marks a wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sleeping. In Dayanidhi Bisoi (supra) this Court, while awarding death sentence to the accused, relied on its previous decision in Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175 and Surja Ram v. State of Rajasthan (1996) 6 SCC 271. 83. In Ravji (supra), a Division Bench of this Court observed that it is only characteristics relating to the crime, to the exclusion of the ones relating to the criminal, which are relevant for sentencing in the criminal trial. In paragraph 24 at page 187 of the report, this Court held: 24....The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court in this case, by following the Ravji ratio, therefore, did not properly appreciate the ratio in Bachan Singh (supra) in awarding death sentence on the Appellant. 86. In the instant case, the High Court while discussing the mitigating circumstances as against the aggravating circumstances has not properly followed the principles discussed in Bachan Singh's case. In Bachan Singh (supra) this Court at paragraph 206 (at page 750 of the report) sets out certain mitigating circumstances which were suggested by Dr. Chitale, the learned Counsel and at paragraph 207 of the report the learned Judge observed that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Those circumstances are set out hereinbelow: 206. Dr. Chitaley has suggested these mitigating factors: Mitigating circumstances:-In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... threat to society in the absence of any evidence to the contrary. Therefore, in paragraph 78 of the impugned judgment, the High Court, with respect, has taken a very narrow and a myopic view of the mitigating circumstances about the Appellant. The High Court has only considered that the Appellant is a first time offender and he has a family to look after. We are, therefore, constrained to observe that the High Court's view of mitigating circumstance has been very truncated and narrow in so far as the Appellant is concerned. 91. On the other hand, while considering the aggravating circumstances, the High Court appears to have been substantially influenced with the brutality in the manner of committing the crime. It is no doubt that the murder was committed in this case in a very brutal and inhuman fashion, but that alone cannot justify infliction of death penalty. This is held in several decisions of this Court. Reference in this case may be made to the decision of this Court in Dharmendrasinh alias Mansinh Ratansinh v. State of Gujarat (2002) 4 SCC 679 wherein the accused suspected the character of his wife and under the belief that his two sons were not born of him, murdere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the accused, a previous convict of murder and facing a sentence of life imprisonment was out on bail when his appeal was pending before the High Court, murdered a woman and her child because the deceased woman's husband asked the accused not to sell illicit liquor in the locality. 94. The facts in Haru Ghosh (supra) are that one day accused entered the house of deceased and started strangulating the child. On the intervention of the mother the child was released from the clutches of accused. The mother took the child to a nearby tubewell and while she was pouring water on unconscious child's face the accused got hold of a sharp weapon from a by-stander and assaulted the mother and child to death. 95. This Court observed that this was a dastardly murder of two helpless persons for no fault on their part. But this Court commuted the death sentence to life imprisonment taking into consideration following factors, firstly that there was no pre-meditation in the act of the accused. This was at the spur of the moment as accused did not come armed with any weapon. Secondly it is unknown under what circumstances accused entered the house of deceased and what prompted him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he most gruesome cases' and Fitzgerald argues: Such a restrictive approach can be summarized as follows: The normal sentence should be life imprisonment. The death sentence should only be imposed instead of the life sentence in the 'rarest of rare' cases where the crime or crimes are of exceptional heinousness and the individual has no significant mitigation and is considered beyond reformation. (Quoted in The Death Penalty: Roger Hood and Hoyle, 4th Edition Oxford, Page 285) 104. Opposing mandatory death sentence, United Nations in its interim report to the General Assembly in 2000 advanced the following opinion: The proper application of human rights law-especially of its provision that 'no one shall be arbitrarily deprived of his life' and that 'no one shall be subjected to....cruel, inhuman or degrading....punishment' - requires weighing factors that will not be taken into account in the process of determining whether a Defendant is guilty of committing a 'most serious crime'. As a result, these factors can only be taken into account in the context of individualized sentencing by the judiciary in death penalty cases...The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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