MD MANNAN @ ABDUL MANNAN versus STATE OF BIHAR
[2019] 8 S.C.R. 266, Supreme Court of India, 2019
Outcome: Unknown
Segment: Ratio
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                        MD. MANNAN @ ABDUL MANNAN
v.
STATE OF BIHAR
(Review Petition (Criminal) No. 308 of 2011)
In
(Criminal Appeal No.379 of 2009)
FEBRUARY 14, 2019
[N. V. RAMANA AND MOHAN M. SHANTANAGOUDAR
AND  INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973: s.235(2) – Hearing on
question of sentence – Death sentence – Right of a convict – Held:
Opportunity should be given to a convict to bring on record
mitigating circumstances for reduction of the sentence and a balance
should be struck between the aggravating and the mitigating
circumstance – In the instant case, the petitioner did not get the
benefit of competent legal assistance – Trial Court also did not
make any attempt to elicit materials relevant to the imposition of
death sentence – No affidavit was called for – The question of
whether there were any mitigating circumstances was not addressed
by the Trial Court or the appellate courts – Even though the hearing
under s.235(2) on the question of sentence was fixed on 31.5.2007,
that is, two days after pronouncement of the judgment and order of
conviction of the petitioner, on 29.5.2007, the hearing was preponed
to 29.5.2007 itself after the petitioner was produced from jail custody
and death sentence was imposed –  Preponement by the Trial Court
of hearing under s.235(2) at short notice, which is in effect, no
notice, appears to have denied the petitioner an effective hearing –
Hearing.
Review:
Rape and murder of eight years old girl – Conviction
under ss.376 and 302 and death sentence – Concurrent finding of
trial court and High Court – Special leave petition against the same
dismissed – Review petition also dismissed – Second review petition
filed in view of Constitution Bench decision in Mohd. Arif case –
Held:  Review petition, filed about eight years ago, was dismissed
by circulation on 24.08.2011 – Even thereafter, for almost three
[2019]  8 S.C.R. 266
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years the death sentence was not executed – The instant application
for reopening the review and hearing the same in Open Court, has
also been pending for over four years –  In view of  decision in
Mohd. Arif case, the petitioner is entitled to have the application for
review which was dismissed by circulation, reopened and heard in
open court.
Sentence/Sentencing: Death sentence – Prayer for
commutation –  Rape and murder of eight years old girl – Conviction
under ss.376 and 302 IPC and death sentence – Concurrent finding
of trial court and High Court – Special leave petition against the
same dismissed –  Review petition – Review restricted to question of
commutation of sentence – Held: Death sentence is imposed in the
rarest of rare cases, for which special reasons have to be recorded,
as mandated in s.354(3) CrPC – In deciding whether a case falls
within the category of the rarest of rare, the brutality, and/or the
gruesome and/or heinous nature of the crime is not the sole criterion
–  The Court is to also take into consideration, the state of his mind,
his socio-economic background, etc. – Therefore, before imposing
the extreme penalty of death sentence, the Court would have to
satisfy itself that death sentence is imperative, as otherwise the
convict would be a threat to society – The Court has to further
satisfy itself that there is no possibility of reform or rehabilitation of
the convict – In this case, an eight year old innocent girl fell prey
to
the carnal desire and lust of the petitioner  – The conviction was
based on circumstantial evidence and extra judicial confession made
by the petitioner to the police in course of investigation – It was not
known whether there was any pre-meditation on the part of the
petitioner to murder the victim – No doubt, the crime was abhorrent,
but it is doubtful as to whether the crime committed by the petitioner
can be termed as “rarest of the rare” – The petitioner has for all
these years virtually been in solitary confinement – Medical evidence
revealed that he was not mentally sound – The mental health of the
petitioner at the time of execution is a relevant mitigating factor
which must be taken into consideration in the instant case –
Therefore, it is not appropriate to affirm the death sentence – The
death sentence imposed on the petitioner is commuted to life
imprisonment, till his natural death, without reprieve or remission –
Administration of criminal justice – Hearing – Code of Criminal
Procedure, 1973 – s.354(3)  –  Penal Code, 1860 – ss.376 and 302.
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Code of Criminal Procedure, 1973: s.235(2) – For effective
hearing under s.235(2), the suggestion that the court intends to
impose death penalty should specifically be made to the accused,
to enable the accused to make an effective representation against
death sentence, by placing mitigating circumstances before the Court
–  Penal Code, 1860 – ss.376 and 302  – Hearing.
Administration of criminal justice: Legal assistance to the
convict – Held: The legal assistance provided to the convict at every
stage including the stage of hearing on the question of sentence
has to be effective and even if the accused has remained silent, the
Court would be obliged and duty bound to elicit relevant factors –
Code of Criminal Procedure, 1973
Prisons: It is well recognised worldwide, that owing to the
difficult circumstances prevailing in prisons, such as, enforced
solitude, inadequate health care, loss of livelihood etc., prisoners
often develop mental illness after their admission into prison – The
relevant Prison Rules also recognise the phenomenon of post-
conviction mental illness and state that the execution of such persons
shall be deferred, pending orders of the Government – Administration
of criminal justice.
Mohd. Arif v. The Registrar of the Supreme Court (2014)
9 SCC 737: [2014] 11   SCR 1009; Bachan Singh v.
State of Punjab  (1980) 2 SCC 684;  Rajesh Kumar v.
State (through Govt. of NCT of Delhi) (2011) 13 SCC
706; Santa
Singh v. State of Punjab  (1976) 4 SCC
190: [1977] 1 SCR 229; Dagdu and Others v. State of
Maharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;
Machhi Singh & Others v. State of Punjab (1983) 3
SCC 470 : [1983] 3SCR 413; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra
(2009) 6 SCC 498: [2009] 9 SCR 90; Ajay Pandit and
Another v. State of Maharashtra  (2012) 8 SCC 43:
[2012] 10 SCR 70; Mohinder Singh v. State of Punjab
(2013) 3 SCC 294 : [2013] 3 SCR 90; Panchhi and
Others v. State of U.P.  (1998) 7 SCC 177: [1998] 1
Suppl. SCR 40; Mukesh and Another v. State (NCT of
Delhi) and Others (2017) 3 SCC 717; Haru Ghosh v.
State of W.B.(2009) 15 SCC 551:[2009] (13) SCR 847;
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Lehna v. State of Haryana  (2002) 3 SCC 76: [2002] 1
SCR  377; Shatrughan Chauhan and Anr. v. Union of
India & Ors. (2014) 3 SCC 1 : :[2014] 1 SCR 609;
Sunil Batra v. Delhi Administration & Ors.  (1978) 4
SCC 494 : [1979] 1 SCR  392 ; Birju v. State of Madhya
Pradesh (2014) 3 SCC 421 : [2014] 1 SCR 1047;
Ramesh and Others v. State of Rajasthan (2011) 3 SCC
685: [2011] 4 SCR 585; Ram Deo Prasad v. State of
Bihar  (2013) 7 SCC 725 : [2013] 6  SCR 108; Sushil
Sharma v. State (NCT of Delhi)  (2014) 4 SCC 317:
[2013] 16 SCR 616; Swamy Shraddananda (2) @
Murali Manohar Mishra v. State of Karnataka (2008)
13 SCC 767 : [2008] 11 SCR 93; Sebastian @
Chevithiyan v. State of Kerala (2010) 1 SCC 58;
Navneet Kaur v. State (NCT of Delhi) and Another
(2014) 7 SCC 264; Mulla and Another v. State of U.P.
(2010) 3 SCC 508: [2010] 2 SCR 633 – relied on.
Case Law Reference
[2014] 11 SCR 1009
     relied on
Para 13
(1980) 2 SCC 684
     relied on
Para 16
(2011) 13 SCC 706
     relied on
Para 17
[1977] 1 SCR 229
     relied on
Para 20
[1977] 3 SCR 636
     relied on
Para 22
[1983]  3 SCR 413
     relied on
Para 23
[2009] 9 SCR 90
     relied on
Para 24
[2012] 10 SCR 70
     relied on
Para 25
[2013] 3 SCR 90
     relied on
Para 26
[1998] 1 Suppl. SCR 40     relied on
Para 27
(2017) 3 SCC 717
     relied on
Para 28
[2009] 13 SCR 847
     relied on
Para 29
[2002] 1 SCR 377
     relied on
Para 31
[2014] 1 SCR 609
     relied on
Para 34
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[1979] 1 SCR  392
     relied on
Para 35
[2014] 1 SCR 1047
     relied on
Para 37
[2011] 4 SCR 585
     relied on
Para 57
[2013] 6  SCR 108
     relied on
Para 58
[2013] 16 SCR 616
     relied on
Para 60
[2008] 11 SCR 93
     relied on
Para 62
(2010) 1 SCC 58
     relied on
Para 63
(2014) 7 SCC 264
     relied on
Para 73
[2010] 2 SCR 633
     relied on
Para 88
CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) No. 308 of 2011 in Criminal Appeal No. 379 of 2009
From the Judgment and Order dated 20.04.2011 of the  Supreme
Court of India in Criminal Appeal No. 379 of 2009
Ms. Nitya Ramakrishnan, Shadan Farasat, Yash S. Vijay, Ninni
Susan Thomas, Saaduzzman,  Ms.Shruti Narayan, Ms. Jahnavi Sindhu,
Advs. for the Petitioner.
Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George,
Aditya Singala, Manu Rajvanshi, M. Shoeb Alam, Advs. for the
Respondents.
The following Order of the Court was passed:
            O R D E R
1. This application is for reopening the Review Petition (Crl.)
No.308 of 2011 and for review of the final judgment and order dated
20.04.2011 passed by this Court dismissing Criminal Appeal No.379 of
2009 filed by the review petitioner and confirming his  conviction, inter
alia, under Section 201, 366A, 376 and 302 of the Indian Penal Code
(IPC) and, inter alia, affirming  the death sentence imposed on him
under Section 302 of the IPC.
2. It appears that the petitioner, a mason, was engaged
at the
residence of the deceased victim’s grand father.  On 28.9.2004 at about
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2.00 p.m., the petitioner gave money to the victim to bring betel for him
from Hanuman Chowk.  A little while later the petitioner also went to
Hanuman Chowk, picked up the victim, an eight year old girl, on his
bicycle and left talking with her.  The victim and the petitioner were
seen together by witnesses.
3. The victim did not return home, whereupon frantic searches
were made.  The victim was not found.   It was learnt that the victim
had  been  last seen with the petitioner.
4. The officer in-charge of Bahera Police Station, under which
the village of the petitioner falls, was informed that the victim was missing.
In course of  investigation the petitioner, who had earlier been identified
as the man with whom the victim had last been seen, riding on a bicycle,
allegedly made a confessional statement in the presence of witnesses,
confessing that he had raped and murdered the victim.   The confessional
statement was signed by the petitioner.
5. The petitioner is alleged to have disclosed the place where he
had raped and killed the victim.   It is the case of the prosecution, that on
the basis of information given by the petitioner, the Investigating Officer
went to the village Izaar Haat Bandh, where the dead body of the victim
was recovered from the spot shown by the petitioner, amidst wheat and
‘arahar’ fields.
6.  The dead body was identified as that of the victim.  The  doctor
who conducted the post mortem opined that death was due to asphyxia
and
haemorrhage as a result of strangulation within 8 to 24 hours from
the time of post mortem examination.   The doctor also deposed that
upon examination the vaginal swab collected from the victim showed
“few intact spermatozoa”. The medical evidence clearly established that
the victim had been raped and murdered.  However no DNA analysis of
the spermatozoa was conducted by the prosecution.
7. By a judgment and order rendered on 29.5.2007 in Sessions
Trial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. Case
No.13 of 2004, the Additional District and Sessions Judge (Fast Track
Court) No.30, on consideration of the evidence on record, held the
petitioner guilty of charges under Sections 366A, 376, 302 and 201 of
IPC.  On the same day after hearing the applicant on the question of
sentence, the Fast Track Court sentenced the petitioner to undergo
rigorous imprisonment for 10 years for charge under Section 366A IPC,
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rigorous imprisonment for life for charge under Section 376 IPC, rigorous
imprisonment for 7 years for charge under Section 201 IPC and death
sentence for charge under Section 302 IPC. All the sentences except
the sentence for the charge under Section 302 IPC were to run
concurrently till execution of the death sentence under Section 302 IPC,
whereby the convict was to be hanged by the neck till his death.
8.  The learned Additional District and Sessions Judge, Fast Track
court directed that the proceedings of the case be transmitted to the
High Court of Judicature at Patna for confirmation of the death sentence.
The petitioner filed an appeal being Criminal Appeal (DB) No.963 of
2007 in the High Court against his conviction and sentence.
9. The death sentence reference being Death Reference No.6 of
2007 was heard by the Division Bench of the High Court along with the
Criminal Appeal (DB) No. 963 of 2007.   The Division Bench, after
considering the materials on record, arrived at the finding that the charges
against the petitioner under Sections 366A, 376, 302 and 201 had been
proved beyond doubt and upheld the conviction.  The appeal was
dismissed and the death penalty awarded to the petitioner by the Trial
Court was confirmed.
10. The petitioner filed a Special Leave Petition in this Court to
appeal against the judgment and order of the High Court.   Leave was
duly granted.
11. The appeal being Criminal Appeal
No.379 of 2009 was
dismissed by this Court, by the judgment and order dated 20.4.2011, of
which review has been sought, and the death sentence confirmed with
the observation that the case fell in the category of the rarest of rare
cases.
12. The petitioner filed a petition for review of the said judgment
and order dated 20.4.2011.  The said review petition was dismissed by
circulation by the same two judges on 24.8.2011.
13. By a judgment and order dated 2.9.2014 in W.P. (Crl.) No. 77
of 2014 (Mohd. Arif v. The Registrar of the Supreme Court1), a
Constitution Bench of this Court held that, that review petitions in cases
of death sentences should be heard in Open Court, by a three-Judge
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Bench. The Constitution Bench specifically permitted the reopening of
review petitions in all cases where review petitions had been dismissed
by circulation.
14. There can be no doubt that in view of the judgment of this
Court in Mohd. Arif (supra) the petitioner is entitled to have the application
for review, which had been dismissed by circulation,  reopened and heard
in Open Court.
15. In this petition for review we need not consider the merits of
the case, there being concurrent findings of the Trial Court, the High
Court and of this Court.  This review is only restricted to the question of
whether death sentence should be commuted to life imprisonment.
16. In Bachan Singh vs. State of Punjab2, this Court, while
upholding the validity of death sentence held, that imprisonment for life
was the rule and death sentence an exception, to be imposed in the
“rarest of rare” cases, recording special reasons. In Bachan Singh
(supra), this Court in effect held that before exercising discretion to
impose the extreme penalty of death sentence, aggravating and mitigating
circumstances are required to be considered.  Some of the mitigating
factors would be the extreme mental or emotional disturbance in which
the offence might have been committed, the possibility that the accused
would not be a continuing threat to society, the possibility of reformation
and rehabilitation of the accused, mental defect or disorder of the accused
etc.
17. In Rajesh Kumar vs. State
(through Govt. of NCT of
Delhi)3, this Court observed:-
“83. The ratio in Bachan Singh has received approval by the
international legal community and has been very favourably
referred to by David Pannick in Judicial Review of the Death
Penalty: Duckworth (see pp. 104-05). Roger Hood and
Carolyn Hoyle in their treatise on The Death Penalty, 4th Edn.
(Oxford) have also very much appreciated the Bachan Singh
ratio (see p. 285). 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.
2(1980) 2 SCC 684
3(2011) 13 SCC 706
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84. Reference in this connection may also be made to the right
based approach in exercising discretion in death penalty as
suggested by Edward Fitzgerald, the British Barrister. [Edward
Fitzgerald: The Mitigating Exercise in Capital Cases in Death
Penalty Conference (3-5 June), Barbados: Conference Papers
and Recommendations.] It has been suggested therein that
right approach towards exercising discretion in capital cases
is to start from a strong presumption against the death penalty.
It is argued that “the presence of any significant mitigating
factor justifies exemption from the death penalty even in the
most gruesome cases” and Fitzgerald argues:
“Such a restrictive approach can be summarised 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
     Edn., Oxford, p. 285.)
86. Taking an overall view of the facts in these appeals and
for the reasons discussed above, we hold that death sentence
cannot be inflicted on the appellant since the dictum of the
Constitution Bench in Bachan Singh is that the legislative
policy in Section 354(3) of the 1973 Code is that for a 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 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 postulate resistance to taking life through law’s
instrumentality. Except in the “rarest of rare cases” and for
“special reasons” death sentence cannot be imposed as an
alternative option to the imposition of life sentence”.
18. In Rajesh Kumar (supra), the accused was convicted of
assault and murder of two helpless children in the most gruesome manner.
This Court held that death sentence could not be inflicted, reiterating
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that life imprisonment was the rule and death sentence an exception
only to be imosed in the “rarest of rare cases” and for “special reasons”
when there were no mitigating circumstances.
19. Section 235 of the Criminal Procedure Code (Cr.P.C.), 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.”
20. Section 235 (2) of the CrPC is not a mere formality.  It is
obligatory on the part of the learned trial Judge to hear the accused on
the question of sentence and deal with it.  To quote Bhagwati J. in Santa
Singh vs. State of Punjab4.
“2. …...This provision is clear and explicit and does not admit
of any doubt.  It requires that in every trial before a court of
sessions, there must first be a decision as to the guilt of the
accused.  The court must, in the first instance, deliver a
judgment convicting or acquitting the accused.  If the accused
is acquitted, no further question arises.  But if he is convicted,
then the court has to “hear the accused on the question of
sentence, and then pass sentence on him according to law”.
When a judgment is rendered convicting the accused, he is,
at that stage, to be given an opportunity to be heard in
regard
to the sentence and it is only after hearing him that the court
can proceed to pass the sentence.
3. This new provision in Section 235(2) is in consonance with
the modern trends in penology and sentencing procedures.
There was no such provision in the old Code.  Under the old
Code, whatever the accused wished to submit in regard to the
sentence had to be stated by him before the argumentss
concluded and the judgment was delivered.  There was no
separate stage for being heard in regard to sentence.  The
4(1976) 4 SCC 190
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accused had to produce material and make his submissions
in regard to sentence on the assumption that he was ultimately
going to be convicted.  This was most unsatisfactory. The
legislature, therefore, decided that it is only when the accused
is convicted that the question of sentence should come up for
consideration and at that stage, an opportunity should be
given to the accused to be heard in regard to the sentence.
Moreover, it was realised that sentencing is an important stage
in the process of administration of criminal justice- as
important as the adjudication of guilt-and it should not be
consigned to a subsidiary position as if it were a matter of
not much consequence.  It should be a matter of some anxiety
to the court to impose an appropriate punishment on the
criminal and sentencing should, therefore, receive serious
attention of the court.
…..The reason is that a proper sentence is the amalgam of
many factors such as the nature of the offence, the
circumstances-extenuating or aggravating- of the offence, the
prior criminal record, if any, of the offender, the age of the
offender, the record of the offender as to employment, the
background of the offender with reference to education, home
life, sobreity and social adjustment, the emotional and mental
condition of ‘the offender, the prospects for the rehabilitation
of the offender, the possibility of treatment or training of the
offender, the possibility
that the sentence may serve as a
deterrent to crime by the offender or by others and the current
community need, if any, for such a deterrent in respect to the
particular type of offence.  These are factors which have to
be taken into account by the court in deciding upon the
appropriate sentence, and, therefore, the legislature felt that,
for this purpose, a separate stage should be provided after
conviction when the court can hear the accused in regard to
these factors bearing on sentence and then pass proper
sentence on the accused.
4.  ….The hearing on the question of sentence, would be
rendered devoid of all meaning and content and it would
become an idle formality, if it were confined merely to hearing
oral submissions without any opportunity being given to the
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parties and particularly to the accused, to produce material
in regard to various factors bearing on the question of
sentence, and if necessary, to lead evidence for the purpose
of placing such material before the court.
21. In Santa Singh (supra), Bhagwati, J. set aside the sentence
of death and remanded the case to the Sessions Court with a direction to
pass appropriate sentence after giving an opportunity to the petitioner in
the aforesaid case of being heard with regard to the question of sentence,
in accordance with the provisions of Section 235(2) CrPC as interpreted
in Santa Singh (supra).
22. In Dagdu and Others vs. State of Maharashtra5, a three-
Judge Bench of this Court referred to Santa Singh (supra) and held
that the mandate of Section 235(2) CrPC had to be obeyed in letter and
spirit.  Chandrachud, J.  held:-
“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. That opportunity has to be real
and effective, which means that the accused must be permitted
to adduce before the Court all the data which he desires to
adduce on the question of sentence. The accused may exercise
that right either by instructing his counsel to make oral
submissions to the Court or he may, on affidavit
or otherwise,
place in writing before the Court whatever he desires to place
before it on the question of sentence. The Court may, in
appropriate cases, have to adjourn the matter in order to
give to the accused sufficient time to produce the necessary
data and to make his contentions on the question of sentence.
That, perhaps, must inevitably happen where the conviction
is recorded for the first time by a higher court.”
23. In Machhi Singh & Others vs. State of Punjab6, this Court
held:-
“38. … (iv) A balance sheet of aggravating and mitigating
circumstances
has to be drawn up and in doing so the
5 (1977) 3 SCC 68
6(1983) 3 SCC 470
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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.”
24.  In Santosh  Kumar   Satishbhushan  Bariyar   vs. State of
Maharashtra7, this Court observed and held:-
“157. The doctrine of proportionality, which appears to be
the premise whereupon the learned trial Judge as also the
High Court laid its foundation for awarding death penalty
on the appellant herein, provides for justifiable reasoning
for awarding death penalty. However, while imposing any
sentence on the accused the court must also keep in mind the
doctrine of rehabilitation. This, considering Section 354(3)
of the Code, is especially so in the cases where the court is to
determine whether the case at hand falls within the rarest of
the rare case.
158. The reasons assigned by the courts below, in our opinion,
do not satisfy Bachan Singh test. Section 354(3) of the Code
provides for an exception. General rule of doctrine of
proportionality, therefore, would not apply. We must read the
said provision in the light of Article 21 of the Constitution of
India. Law laid down by Bachan Singh and Machhi Singh
interpreting Section 354(3) of the Code should be taken to
be a part of our constitutional scheme.
159. Although the Constitutional Bench judgment of the
Supreme Court in Bachan Singh did not lay down any
guidelines on
determining which cases fall within the “rarest
of rare” category, yet the mitigating circumstances listed in
and endorsed by the judgment give reform and rehabilitation
great importance, even requiring the State to prove that this
would not be possible, as a precondition before the court
awarded a death sentence. We cannot therefore determine
punishment on grounds of proportionality alone. There is
nothing before us that shows that the appellant cannot reform
and be rehabilitated.
7(2009) 6 SCC 498
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162. Further indisputably, the manner and method of disposal
of the dead body of the deceased was abhorrent and goes a
long way in making the present case a most foul and
despicable case of murder. However, we are of the opinion,
that the mere mode of disposal of a dead body may not by
itself be made the ground for inclusion of a case in the “rarest
of rare” category for the purpose of imposition of the death
sentence. It may have to be considered with several other
factors.
25. In Ajay Pandit and Another vs. State of Maharashtra8,
this Court held:-
“47. Awarding death sentence is an exception, not the rule,
and only in the rarest of rare cases, the court could award
death sentence. The state of mind of a person awaiting death
sentence and the state of mind of a person who has been
awarded life sentence may not be the same mentally and
psychologically. The court has got a duty and obligation to
elicit relevant facts even if the accused has kept totally silent
in such situations. In the instant case, the High Court has not
addressed the issue in the correct perspective bearing in mind
those relevant factors, while questioning the accused and,
therefore, committed a gross error of procedure in not properly
assimilating and understanding the purpose and object
behind Section 235(2) CrPC.”
26. In Mohinder Singh vs. State of Punjab9, this Court held:-
“22. The doctrine of “rarest of rare” confines two aspects
and when both the aspects are satisfied only then
the death
penalty can be imposed. Firstly, the case must clearly fall
within the ambit of “rarest of rare” and secondly, when the
alternative option is unquestionably foreclosed. Bachan Singh
suggested selection of death punishment as the penalty of
last resort when, alternative punishment of life imprisonment
will be futile and serves no purpose.
23. In life sentence, there is a possibility of achieving
deterrence, rehabilitation and retribution in different degrees.
8 (2012) 8 SCC 43
9 (2013) 3 SCC 294
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But the same does not hold true for the death penalty. It is
unique in its absolute rejection of the potential of convict to
rehabilitate and reform. It extinguishes life and thereby
terminates the being, therefore, puts an end to anything to do
with life. This is the big difference between two punishments.
Thus, before imposing death penalty, it is imperative to
consider the same. The “rarest of rare” dictum, as discussed
above, hints at this difference between death punishment and
the alternative punishment of life imprisonment. The relevant
question here would be to determine whether life imprisonment
as a punishment would be pointless and completely devoid of
any reason in the facts and circumstances of the case. As
discussed above, life imprisonment can be said to be
completely futile, only when the sentencing aim of reformation
can be said to be unachievable. Therefore, for satisfying the
second aspect to the “rarest of rare” doctrine, the court will
have to provide clear evidence as to why the convict is not fit
for any kind of reformatory and rehabilitation scheme”.
27. In Panchhi and Others vs. State of U.P.10, this Court
observed:-
“20. … No doubt brutality looms large in the murders in this
case particularly of the old and also the tender-aged child. It
may be that the manner in which the killings were perpetrated
may not by itself show any lighter side but that is not very
peculiar or very special in these
killings. Brutality of the
manner in which a murder was perpetrated may be a ground
but not the sole criterion for judging whether the case is one
of the ‘rarest of rare cases’ as indicated in Bachan Singh
case.”
28. In Mukesh and Another v. State (NCT of Delhi) and
Others11, a three-Judge Bench of this Court considered the earlier
judgments of this Court referred to above and deemed it appropriate to
give opportunity to the accused to file affidavits to bring on record
mitigating circumstances for reduction of the sentence.
29. In Haru Ghosh v. State of W.B.12, this Court commuted death
sentence to life imprisonment in case of a dastardly murder of two
10(1998) 7 SCC 177
11(2017) 3 SCC 717
12(2009) 15 SCC 551
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helpless persons for no fault of theirs. This Court, however, in commuting
death sentence took into consideration the following factors:-
i. There was no pre-mediation on the part of the accused;
ii.The act was on the spur of the moment;
iii. The accused was not armed with any weapon;
iv. It was unknown under what circumstances the accused had
entered the house of the deceased and what prompted him to assault the
boy; and
v. The cruel manner in which the murder was committed could
not be the guiding factor and the accused himself had two minor children.
30. In Haru Ghosh (supra), this Court observed, “….the cruel
manner in which the murder was committed and the subsequent
action on the part of the accused in severing the parts of the body
of the deceased, do not by themselves become the guiding factor in
favour of death sentence.”
31. In Lehna v. State of Haryana13, this Court observed and
held that the mental condition of the accused which led to the assault
could not be ignored, though the same may not be relevant to judge
culpability.  It is certainly a factor while considering the question of
sentence.
32. In the aforesaid case even though three lives had been lost by
reason of the crime, this Court modified the punishment by commuting
death sentence to life imprisonment, observing that there was no evidence
of any diabolic planning to commit the crime, though the act was cruel.
33. Learned counsel appearing on behalf of the applicant submitted
that
since his arrest on 28.2.2004 the applicant has undergone about 15
years in custody and 11 years as a convict sentenced to death, lodged in
virtual solitary confinement in a single cell high security ward in Bhagalpur
Prison in Bihar.
34. In Shatrughan Chauhan and Anr. vs. Union of India &
Ors.14, this Court considered and discussed the possibility of condemned
convicts, who are sentenced to death developing mental disorder, upon
reference to relevant provisions of the U.P. Jail Manual and similar
provisions of other jail manuals. This Court observed:
 MD. MANNAN @ ABDUL MANNAN  v.  STATE OF BIHAR
13(2002) 3 SCC 76
14 (2014) 3 SCC  1
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“86. The above materials, particularly, the directions of the
United Nations international conventions, of which India is
a party, clearly show that insanity/mental illness/schizophrenia
is a crucial supervening circumstance, which should be
considered by this Court in deciding whether in the facts and
circumstances of the case death sentence could be commuted
to life imprisonment. To put it clear, “insanity” is a relevant
supervening factor for consideration by this Court.
87. In addition, after it is established that the death convict is
insane and it is duly certified by the competent doctor,
undoubtedly, Article 21 protects him and such person cannot
be executed without further clarification from the competent
authority about his mental problems. It is also highlighted by
relying on commentaries from various countries that civilised
countries have not executed death penalty on an insane
person. ………. In view of the well-established laws both in
the national as well as international sphere, we are inclined
to consider insanity as one of the supervening circumstances
that warrants for commutation of death sentence to life
imprisonment.”
35. In Shatrughan Chauhan (supra), this Court also referred to
Sunil Batra vs. Delhi Administration & Ors.15,and reiterated that if
solitary confinement was illegal, the same punishment could not be scuffled
into the legal system by naming it differently.  If prolonged solitary
confinement of a death sentence convict is a ground for commutation of
death sentence, solitary confinement, in effect, on ground of high security
or otherwise would also be a ground for commutation of death sentence.
36. Counsel further submitted that the Trial Court has convicted
the petitioner and sentenced him to death considering the inhuman and
brutal nature of the crime alone.  The findings of the Trial Court with
regard to the criminal antecedents is not based on any cogent materials.
The Trial Court merely recorded the submission of the public prosecutor
that the petitioner had been accused in another trial in which the petitioner
had “managed his acquittal in the garb of compromise”(para 29).
37. Citing the judgment of this Court in Birju vs. State of Madhya
Pradesh16 Counsel submitted, and rightly that only  convictions which
have attained finality can be considered as “aggravating circumstances”.
15(1978) 4 SCC 494
16(2014) 3 SCC 421
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38. Counsel submitted that the Trial Court did not give opportunity
to the petitioner to show mitigating circumstances, notwithstanding a
duty to hear the accused under Section 235(2) of the Code of Criminal
Procedure (Cr.PC) on the question of sentence.
39. As argued by learned counsel appearing on behalf of the
petitioner, the accused had the right to be provided with legal aid at all
stages, including the stage of consideration of the question of sentence.
After the conviction of the petitioner,  he should have been given the
benefit of being accompanied by a social worker to guide and counsel
him and also to help him to get an effective hearing on the question of
sentence.
40. In this case, the petitioner was not accompanied by a social
worker.  Furthermore the legal aid provided to the petitioner was
inadequate.  The legal aid lawyer representing the applicant argued
against the conviction, but did not seek the opportunity to draw attention
of the Court to mitigating circumstances for imposition of sentence of
life imprisonment in place of death. He only submitted that the petitioner
had falsely been implicated.
41. For effective hearing under Section 235(2) of the Code of
Criminal Procedure, the suggestion that the court intends to impose death
penalty should specifically be made to the accused, to enable the accused
to make an effective representation against death sentence, by placing
mitigating circumstances before the Court.   This has not been
done.
The Trial Court made no attempt to elicit relevant facts.  Nor did the
Trial Court give any opportunity to the petitioner the opportunity to file
an affidavit placing on record mitigating factors.  As such the petitioner
has been denied an effective hearing.
42. Contrary to the dictum of this Court, inter alia, in Dagdu
(supra) and Santa Singh (supra) the petitioner was not given a real,
effective and meaningful hearing on the question of sentence under
Section 235(2) of the Cr.P.C. The death sentence imposed on the petitioner
is liable to be commuted to life imprisonment on this ground.
43. The records reveal that after the judgment and order of
conviction was pronounced on 29.5.2007, the matter was directed to be
put up on 31.5.2007 for hearing on the point of sentence.  However, on
the same day i.e., 29.5.2007 itself the petitioner was produced from jail
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custody and death sentence was imposed.  The order imposing the death
sentence is extracted hereinbelow for convenience:-
“26   Convict Md. Mannan @ Abdul Mannan produced from
jail custody.
27. Heard learned P.P and learned lawyer for the convict on
the point of passing sentence against the convict.
28. Learned lawyer for the convict has again repeated in his
submission that the convict has been falsely implicated in this
case.
29. On the other learned P.P. has firmly asserted that the guilt
of the convict in respect of the charges framed against him
has been proved beyond shadow of all reasonable doubts
which can only be treated as barbarous act and crime against
the whole society beyond imagination.  It is also submitted
that the convict was an accused in another S.T. No.172/93
which was disposed by the Court of Learned District &
Sessions Judge,  Darbhanga on 18.9.1993 in which the
convict managed his acquittal in the garb of compromise.  It
is submitted by the learned P.P. to award maximum sentence
against the convict in this case.
30. Considering the submission of the respective sides and
nature of the charges against the convict I find that the guilt
of the convict is not only heinous and barbarous but crime
against the society in general.  The convict has been found
guilty of rape and murder of a minor girl committed in a
gruesome and premeditated manner after kidnapping her
which can only be treated as inhuman
and brutal act.
31. The purpose of law will be served by awarding maximum
sentence against the convict.   Convict Md. Mannan @ Abdul
Mannan is therefore sentenced to undergo R.I. for 10 years
for charge u/s 366 A IPC, R.I. for life for charge u/s 376 I.P.
and R.I. for seven years for charge u/s 201 IPC and awarded
death sentence for charge u/s 302 IPC.  All the sentence except
sentence for charge u/s 302 IPC shall run concurrently till
execution of death sentence for charge u/s 302 I.P.C. whereby
the convict shall be hanged by the neck till his death.
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32.  Let entire proceeding of this case be transmitted to the
Hon’ble High Court, Patna for confirmation of capital
punishment.”
44. On a perusal of the order of sentence, it is patently clear that
the learned lawyer representing the petitioner only submitted that the
petitioner had falsely been implicated in the case. He did not at all make
any submission with regard to the sentence.  He did not seek further
time to prepare himself, though the question of life and death of a convict
was involved.  The Trial Court proceeded on the basis of the  submission
of the learned Public Prosecutor that the charges had been proved beyond
reasonable doubt.
45. The Trial Court found, and rightly,  that the crime committed
was barbarous, and a crime against society, beyond imagination.  The
question is whether death penalty should have been imposed.
46.  The Trial Court has apparently been swayed by the submission
of the learned Public Prosecutor that the convict, that is, the petitioner,
had been an accused in another Sessions Trial being ST No.172/93 which
was disposed of by the Court of the learned District and Sessions Judge,
Darbhanga on 18.9.1993. The Trial Court commented that  “the convict
managed his acquittal in the garb of compromise”.
47.  The Trial Court has apparently not perused the order dated
18.9.1993 passed by the Court of the District and Sessions Judge,
Darbhanga on 18.9.1993. The petitioner having been acquitted by a Court
of law, the Trial Court
ought not to have been swayed by the
unsubstantiated submission of the learned Public Prosecutor that the
convict “had managed” his acquittal.
48. The Trial Court found the guilt of the convict i.e. the petitioner,
not only heinous and barbarous, but a crime against society in general,
as he had been found guilty of rape and murder of a minor girl, committed
in a gruesome and per-meditated manner, after kidnapping her, which
could only be termed as inhuman and brutal.
49. There can be no doubt that rape and murder of a 8 year old
girl shocks the conscience.  It is barbaric.  There is, however, no evidence
to support the finding that the murder was pre-meditated.  The petitioner
did not carry any weapon.  Moreover, the Trial Court has apparently not
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considered the question of whether the crime is the rarest of rare crimes
as mandated by the Supreme Court in Bachan Singh (supra).
50. The reasoning of the High Court for confirming the extreme
penalty of death sentence is extracted hereinbelow for convenience:-
“26  The trial court has awarded the extreme penalty of death
sentence to the appellant on the basis of submissions in respect
of criminal antecedents of the appellants and also on the
finding that the guilt is not only heinous and barbarous but
crime against the society in general.  It has been submitted
that the criminal antecedents of the appellant should not have
been taken into consideration by the trial court and hence
the special reasons give by the trial court for awarding death
penalty is vitiated in law.
27. I have considered the entire facts and the aforesaid
submissions for  deciding whether the death penalty awarded
to the appellant should be confirmed or not.  In this regard it
is noticed that appellant is a matured man aged about 42-43
years.  He has committed the heinous and barbarous crime of
rape and murder of a girl aged about 7 years who was thin
built and of 4’ height.  Such a child was incapable of arousing
lust in normal situation.  She was kidnapped in a planned
manner because she was innocent and could not understand
the design of the appellant.  She became helpless victim of a
diabolic middle aged man whom the child could trust as an
elder person.  The medical evidence shows the cruel manner
of causing injuries on the face, nails and body of the child at
the time of committing rape which was followed by murder.
This was all pre-planned as is apparent from the manner of
kidnapping and selection of a lonely place where crime was
committed and body concealed.  Crime of this nature against
a child girl is definitely a crime against the society.  The facts
of the case, the offences taken together along with the age of
the victim and the age of the appellant clearly bring the case
in the category of ‘rarest of the rare cases” in which interest
of justice requires award of maximum penalty.  In such a case
award of a lesser punishment would not be appropriate and
adequate.  Hence even after ignoring the material regarding
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criminal antecedents of the appellant, I am of the view that
the appellant deserves extreme penalty of death.  Hence, the
death penalty awarded to the appellant by the trial court is
confirmed and the reference is answered in affirmative.  The
appeal of the appellant is dismissed.”
51. As argued by learned counsel appearing on behalf of the
petitioner, the High Court found the offence to be in the category of
rarest of the rare cases, having regard to the nature of the offence and
the age of the victim.  The fact that no criminal antecedents had been
brought on record has casually been  brushed aside as irrelevant.
52.  Counsel submitted, and rightly, that the High Court failed to
appreciate that the Trial Court had erred in law in awarding death penalty,
by proceeding on the basis that the petitioner had a criminal history,
when he had been acquitted.
53. The High Court upheld the death penalty by concluding that
the convict deserved death penalty “even after ignoring the material
regarding criminal antecedents of the appellant”.   The High Court
has not apparently considered the mitigating circumstances.  This Court
confirmed the death sentence on consideration of the brutality and
heinousness of the crime and the age of the victim and formed opinion
that the petitioner was a menace to the society and would continue to be
so.  He could not be reformed.
54. Counsel submitted that the brutality of the crime and age of
the victim was not ground enough to
inflict death sentence.  Furthermore,
the opinion of this Court that the petitioner would be a menace to society
and could not be reformed had no basis.  Learned counsel submitted
that the petitioner had been convicted on circumstantial evidence, based
on faulty investigation.
55. Counsel submitted that even though Dr. P.K. Das (4th
Prosecution Witness) had collected the vaginal swab of the victim, which
upon examination showed “few intact spermatozoa”, no DNA analysis
was conducted or sought to be conducted by the prosecution for which
adverse inference might be drawn.  In support of the aforesaid
submission, counsel placed reliance on Kalu Khan v. State of
Rajasthan17 and Santosh Kumar (supra).
 MD. MANNAN @ ABDUL MANNAN  v.  STATE OF BIHAR
17(2015) 16 SCC 492
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56. Notwithstanding  the omission of the prosecution to conduct
DNA analysis the Trial Court may have found the evidence sufficient to
convict the petitioner.  Moreover, as rightly argued by Counsel,  the
quality of evidence is a factor relevant to sentencing.
57. In Ramesh and Others v. State of Rajasthan18, this Court
observed and held:-
“68. Practically, the whole law on death sentence was referred
to in Santosh Kumar case. In para 56, the Court observed:
(SCC p. 527)
‘56. … 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 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.’”
58. In Ram Deo Prasad v. State of Bihar19, this Court referred
to and relied upon the earlier judgments of this Court in Santosh Kumar
Satishbhushan Bariyar (supra) and Rameshand Others (supra) and
reaffirmed that the quality of evidence was also
a relevant factor in
considering the question of death sentence.  In the aforesaid case, this
Court felt it unsafe to confirm the death sentence awarded for rape and
murder of a four year old child.
59. In this case, the conviction of the petitioner is based on
circumstantial evidence and the alleged extra judicial confession made
by the petitioner to the police in course of investigation, on the basis of
which certain recoveries were made.  There is no forensic evidence
against the petitioner.  It would, in our view, be unsafe to uphold the
imposition of death sentence on the petitioner.
18 (2011) 3 SCC 685
19(2013) 7 SCC 725
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60. In Sushil Sharma vs. State (NCT of Delhi)20 this Court
considered the peculiar facts of the case and did not award the death
penalty since the only evidence was circumstantial and there were some
factors that were to the advantage of the appellant.  This Court held:
“101. We notice from the above judgments that mere brutality
of the murder or the number of persons killed or the manner
in which the body is disposed of has not always persuaded
this Court to impose death penalty.  Similarly, at times, in the
peculiar factual matrix, this Court has not thought it fit to
award death penalty in cases, which rested on circumstantial
evidence or solely on approver’s evidence.”
61. In Kalu Khan (supra), this Court referred to its earlier decision
in Swamy Shraddananda (2) @ Murali Manohar Mishra vs. State
of Karnataka21 and held, in the facts of the case, the balance of
circumstances introduced an uncertainty in the “culpability calculus” and
therefore there was an alternative to the imposition of the death penalty.
Accordingly, the sentence was commuted to imprisonment for life.
62. In Santosh Kumar (supra) this Court clearly held that while
there is no prohibition in law in awarding a death sentence in a case of
circumstantial evidence, but that evidence must lead to an exceptional
case.  It was said:
“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 (20, 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 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.”
 MD. MANNAN @ ABDUL MANNAN  v.  STATE OF BIHAR
20(2014) 4 SCC 317
21(2008) 13 SCC 767
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63.  In Sebastian @ Chevithiyan vs. State of Kerala22, this Court
held:
“18. We are of the opinion that in the background of these
facts, the death penalty ought to be converted to imprisonment
for life but in terms laid down by this Court in Swamy
Shraddanada (2) vs. State of Karnataka [(2008) 13 SCC 767]
as his continuance as a member of an ordered society is
uncalled for..”
64. Counsel finally submitted that the legal aid lawyer representing
the petitioners had a positive onus to lead evidence regarding the possibility
of reformation of the petitioner which he did not discharge.  The evidence
on reformation had to be independent of the circumstances of the crime.
In this context, reliance has been placed on Rajesh Kumar (supra),
Santosh Kumar Satishbhushan Bariyar (supra) and Lehna (supra).
65. Counsel argued that legal representation provided to the
petitioner was ineffective at all stages.   The petitioner was not
represented by counsel before the Trial Court, at the time of framing of
charge on 21.2.2004.  On 6.6.2005 the petitioner made a request for
legal aid.  During the sentencing the Counsel did not even seek time to
place mitigating circumstances.
66. Learned counsel submitted that legal representation was not
only ineffective in the Trial Court but also before the High Court and
before this Court.  Ineffective legal representation to defend the convict
on the question of punishment is no legal
representation and  a ground
for commutation of death sentence.  This proposition finds support from
the judgment of this Court in Ram Deo Prasad (supra).
67. The learned counsel has drawn the attention of this Court to
various orders of this Court where this Court has considered mitigating
circumstances and commuted death sentence in cases involving rape
and murder of a minor.  Unfortunately, those orders could not be placed
before the Trial Court. Had those orders been noticed, the petitioner
may not have been awarded death sentence.
68. Relying on Mukesh and Anr. (supra),  Counsel submitted
that this Court can call for affidavit or materials gathered by the
petitioner’s counsel, to fix the lacunae in sentencing in the the courts
22(2010) 1 SCC 58
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below.  The legal representatives of the petitioner have conducted
interviews with the petitioner and his family members and the following
factors require consideration:-
(i) Petitioner has lived his entire life in poverty.
(ii) He has never access to formal education
(iii) He started working at the age of 15 when his father was
incapacitated for the remainder of his life after suffering a  troke.
(iv) Petitioner was married at the age of 22 and has five dependent
children
(v)  The petitioner struggled to support his wife and children
(vi)  The family is in abject poverty.
69. Counsel further submitted that during conversation with the
petitioner, he was found to lose sense of reality and talk about being
possessed by imaginary personalities which he described as jinns.  He
claimed to lose control over his thoughts and actions when possessed.
Counsel submitted that the petitioner suffered from instability of mind.
In this regard, it has been submitted that:-
(i)   petitioner had received multiple near fatal injuries in his head
in the course of his life which have caused persistent headaches,  loss of
memory and disorientation.
(ii)  The petitioner had been diagnosed and treated for meningeal
tuberculosis or Brain TB for a year and half at Darbhanga Medical
College around the year 1990.  Unfortunately records of the time cannot
be traced.
(iii)  Socio-economic conditions of the petitioner made it impossible
for the petitioner to avail effective treatment
for his mental instability.
70. There are transcripts of a consulting psychiatrist, Dr. Kaustubh
Joag, who opined  on 29.10.2008 that there is “a strong possibility that
the petitioner might be suffering from organic (neurological) and/
or mental health issues” and advised an assessment on the psychosis
spectrum and on the organic brain damage which might have altered his
behaviour.  A copy of the opinion  of Dr. Kaustubh Joag, MD has been
made over.   Dr. Joag is apparently a Psychiatrist of standing registered
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with Maharashtra Medical Council, who has several publications and is
recipient of awards.
71. Counsel submits that if this Court gives the applicant an
opportunity, an affidavit shall be filed placing the abovementioned factors
on record.  Counsel submits that in the light of deficient sentencing
procedure as pointed out, this Court may consider the socio-economic
conditions and the mental illness concerns of the petitioner as also other
mitigating factors such as absence of criminal antecedents on record, to
commute the death sentence imposed on the petitioner, to life
imprisonment.
72. The review petition, filed about eight years ago, was as
observed above, dismissed by circulation on 24.08.2011. Even thereafter,
for almost three years the death sentence was not executed. This
application for reopening the review and hearing the same in Open Court,
has also been pending for over four years.  Calling for affidavits would
only delay the matter.  The petitioner has for all these years virtually
been in solitary confinement on some ground, may be the ground of his
own security.  This Court might also take judicial notice of the opinion of
the psychiatrist, Dr. Joag which reveals that the petitioner is not mentally
sound.
73. In Lehna  (supra) Shatrughan Chauhan (supra), this Court
held that mental illness is one of the supervening circumstances in
commutation of death sentence to life imprisonment.  The aforesaid
view
was confirmed by this Court in Navneet Kaur v. State (NCT of
Delhi) and Another23.
74. The proposition of law which emerges from the judgments
referred to above is itself death sentence cannot be imposed except in
the rarest of rare cases, for which special reasons have to be recorded,
as mandated in Section 354(3) of the Criminal Procedure Code.  In
deciding whether a case falls within the category of the rarest of rare,
the brutality, and/or the gruesome and/or heinous nature of the crime is
not the sole criterion. It is not just the crime which the Court is to take
into consideration, but also the criminal, the state of his mind, his socio-
economic background, etc. Awarding death sentence is an exception,
and life imprisonment is the rule.
23(2014) 7 SCC 264
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75. Therefore, before imposing the extreme penalty of death
sentence, the Court would have to satisfy itself that death sentence is
imperative, as otherwise the convict would be a threat to society, and
that there is no possibility of reform or rehabilitation of the convict, after
giving the convict an effective, meaningful, real opportunity of hearing
on the question of sentence, by producing materials.
76. The legal assistance provided to the convict at every stage
including the stage of hearing on the question of sentence has to be
effective and even if the accused has remained silent, the Court would
be obliged and duty bound to elicit relevant factors.  Opportunity should
have been given to the convict to bring on record mitigating circumstances
for reduction of the sentence and a balance struck between the aggravating
and the mitigating circumstance.
77. The petitioner, as observed above, did not get the benefit of
competent legal assistance.  The Trial Court also did not make any attempt
to elicit materials relevant to the imposition of death sentence. No affidavit
was called for. The question of whether there were any mitigating
circumstances was not addressed by the Trial Court or the appellate
courts.
78. As observed above, even though the hearing under Section
235(2) on the question of sentence was fixed on 31.5.2007,  that is, two
days after pronouncement of the judgment and order of conviction of
the petitioner, on 29.5.2007, the hearing was
preponed to 29.5.2007 itself
after the petitioner was produced from jail custody and death sentence
was imposed.
79.Imposition of death sentence on the same day after
pronouncement of the judgment and order of conviction may not, in itself,
vitiate the sentence, provided the convict is given a meaningful and
effective hearing on the question of sentence under Section 235(2) Cr.P.C
with opportunity to bring on record mitigating factors.
80. Preponement by the Trial Court of hearing under Section 235(2)
Cr. P.C at short notice, which is in effect, no notice, appears to have
denied the petitioner an effective hearing.  The hearing under Section
235(2) was reduced to a mere formality.  The Court hastily proceeded
to impose death sentence considering the dastardly nature of the crime
for which the petitioner had been convicted.
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81. In this case, an eight year old innocent girl fell prey to the
carnal desire and lust of the petitioner.  It is not known whether there
was any pre-meditation on the part of the petitioner to murder the victim.
The circumstances in which he murdered the victim are also not known.
The conviction is based on circumstantial evidence and extra judicial
confession made by the petitioner to the police in course of investigation.
There can be no doubt that the crime is abhorrent, but it is doubtful as to
whether the crime committed by the petitioner can be termed as “rarest
of the rare”.
82. There is also no material at all, not to speak of cogent material,
to establish that the appellant was incapable of being reformed, that he
would remain a threat to society, and that the only punishment that could
be given, having regard to the nature of the crime, is death sentence.
83. The mere fact that the petitioner and/or his Counsel chose to
remain silent on the question of sentence and did not make any submission
with regard to the same in the Trial Court or the Higher Appellate Courts,
does not debar the petitioner from agitating the existence of mitigating
circumstances at this stage, since principles of constructive res judicata
can have no application to matters relating to life and death.
84. It is open to the Court to either remit the question of sentence
to the Trial Court for fresh consideration, after giving adequate
opportunity
of hearing or to remedy the breach by giving the petitioner a hearing, as
held in Dagdu (supra).   On overall consideration of all relevant facts
and circumstances including the long pendency of proceedings, we have
opted for the latter course.
85. It is well recognised worldwide, that owing to the difficult
circumstances prevailing in prisons, such as, enforced solitude, inadequate
health care, loss of livelihood etc., prisoners often develop mental illness
after their admission into prison.  The petitioner has been undergoing
prolonged confinement which is solitary in effect for all practical
purposes, though not termed solitary confinement. This Court, in the
case of Shatrughan Chauhan (supra), while strongly relying upon
international Conventions, has held “insanity” to be a pertinent supervening
factor which must be taken into consideration by the courts while
awarding death penalty.  Moreover, this Court had held therein that Article
21 protects such persons from being executed without obtaining further
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clarification from the competent authority.  Lastly, placing reliance upon
laws operating in both international as well as national arenas, this Court
concluded that mental illness is a relevant factor which warrants
commutation of death sentence to life imprisonment.
86. It is also pertinent to note herein that the relevant Prison Rules
also recognise the phenomenon of post-conviction mental illness and
state that the execution of such persons shall be deferred, pending orders
of the Government24.  In th elight of the aforesaid considerations, we
conclude that the mental health of the petitioner at the time of execution
is a relevant mitigating factor which must be taken into consideration in
the present case.  As observed above, there are materials put forward
now, in the form of medical opinion, which show that the petitioner is not
mentally sound.  For the reasons discussed above, we are of the view
that it would not be appropriate and/or safe to affirm the death sentence
awarded to the petitioner.
87. In Swamy Shraddananda (supra), this court held:
“92. The matter may be looked at from a slightly different angle.
The issue of sentencing has two aspects.  A sentence may be
excessive and unduly harsh or it may be highly
disproportionately inadequate.  When an appellant comes to
this Court carrying a death sentence awarded by the trial
court and confirmed by the High Court, this Court may find,
as in the present appeal, that the case just falls short of
the
rarest of the rare category and may feel somewhat reluctant
in endorsing the death sentence.  But at the same time, having
regard to the nature of the crime, the Court may strongly feel
that a sentence of life imprisonment subject to remission
normally works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should the Court
do? IF the Court’s option is limited only to two punishments,
one a sentence of imprisonment, for all intents and purposes,
of not more than 14 years and the other death, the Court may
feel tempted and find itself nudged into endorsing the death
penalty.  Such a course would indeed be disastrous.  A far
more just, reasonable and proper course would be to expand
the options and to take over what, as a matter of fact, lawfully
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belongs to the Court i.e. the vast hiatus between 14 years’
imprisonment and death. It needs to be emphasised that the
Court would take recourse to the expanded option primarily
because in the facts of the case, the sentence of 14 year’s
imprisonment would amount to punishment at all.”
88. In Mulla and Another v. State of U.P.25, this Court has
affirmed that it is open to the Court to prescribe the length of incarceration.
This is especially true in cases where death sentence has been replaced
by the life imprisonment.  This Court observed, “the court should be
free to determine the length of imprisonment which will suffice the
offence committed.”
89. Even though life imprisonment means imprisonment for entire
life, convicts are often granted reprieve and/or remission of sentence
after imprisonment of not less than 14 years.  In this case, considering
the heinous, revolting, abhorrent and despicable nature of the crime
committed by the petitioner, we feel that the petitioner should undergo
imprisonment for life, till his natural death and no remission of sentence
be granted to him.
90. We, therefore, commute the death sentence imposed on the
petitioner to life imprisonment, till his natural death, without reprieve or
remission.
91. The review petition is accordingly disposed of.
Devika Gujral
                            Review Petition disposed of.
25(2010) 3 SCC 508