M. A. ANTONY @ ANTAPPAN versus STATE OF KERALA
[2018] 13 S.C.R. 296, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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M. A. ANTONY @ ANTAPPAN
v.
STATE OF KERALA
(Review Petition (Crl.) No. 245 of 2010)
in
Criminal Appeal No. 811 of 2009
DECEMBER 12, 2018
[MADAN B. LOKUR, S. ABDUL NAZEER AND
DEEPAK GUPTA, JJ.]
Practice and Procedure – Death sentence – Commutation of,
into life sentence– Mitigating factors to be considered – Socio-
Economic factors – Appellant murdered six members of one family
– Sessions Court convicted the appellant – Trial Judge sentenced
the appellant “to be hanged by the neck till he is dead” – High
Court confirmed the death sentence – Appellant filed appeal before
Supreme Court – Dismissed– Appellant filed Review Petition–
Dismissed– Review petition re-opened– Held: Socio-economic
circumstances relating to the appellant are relevant for objective
consideration of the award of sentence – Socio-economic factors
must be taken into consideration while awarding sentence,
particularly the ground realities relating to access to justice that
are not easily available to the poor and needy – In the present case,
convict was working as driver on casual basis and was desirous of
obtaining employment in the Gulf and was making all attempts in
this direction– He managed to arrange a visa but had to pay the
agent Rs.62,000/- – Due to severe financial constraints he could
only arrange Rs.25,000/- – He had gone to the house of the deceased
family for getting money– But, unfortunately he was unable to obtain
any funds from them
and this led to his decision to kill all of them –
Socio-economic condition of the appellant was a significant factor
that ought to have been taken into consideration by the Trial Court
and the High Court while considering the punishment to be given
to the appellant – While the socio-economic condition of a convict
is not a factor for disproving his guilt, it is a factor that must be
taken into consideration for the purposes of awarding an
appropriate sentence to a convict – Trial Court was in error  while
awarding death sentence to the appellant  on the basis that he was
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a hardened criminal– There is no such evidence on record– Death
sentence awarded to the appellant converted into sentence of
imprisonment for life.
Disposing of the review petition, the Court
HELD: 1.1 The socio-economic factors relating to a convict
should be taken into consideration for the purposes of deciding
whether to award life sentence or death sentence. Socio-economic
factors must be taken into consideration while awarding a
sentence particularly the ground realities relating to access to
justice and remedies to justice that are not easily available to the
poor and the needy.  [Paras 15, 16][305-B; 306-C]
1.2 The consideration of socio-economic factors is tied up
with another important issue (which need not necessarily or
always be taken into consideration for sentencing purposes, but
could be relevant in a given case) and that is whether the
convict has had adequate legal representation. Quality legal aid
to the disadvantaged and weaker sections of society is an
area that requires great and urgent attention. [Paras 17, 18]
[306-C-D, F-G]
1.3 On the facts of the present case, the convict was working
as a driver on a casual basis. He was desirous of obtaining
employment in the Gulf and was making all attempts in this
direction. He managed to arrange a visa but had to pay the agent
Rs.62,000/-. Due to severe financial constraints he could only
arrange Rs.25,000/- for making the initial payment. He continued
making attempts to raise the amount.  His
economic condition
was so severe that for the purposes of going to Gulf he had to
proceed from Ernakulam to Mumbai by train and while he could
manage to purchase the ticket, he was unable to pay for
reservation charges. Under these circumstances, he had gone to
the house of the deceased family for getting money or by stealing
it or by grabbing it by any other means. But unfortunately for
him and the deceased family, he was unable to obtain any funds
from them and this led to his decision to kill all of them.
[Para 26][310-C-E]
Public opinion or collective conscience of the society
1.4  It would be wise if impressions gathered on what is
perceived to be public opinion or collective conscience of the
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society are eschewed while sentencing a convict found guilty of a
grave or brutal crime. On the facts of the present case, there was
no material whatsoever to come to the conclusion that the gravity
of the crime caused revulsion in the society or that it had
materially disturbed normal life in the society. Consequently, the
view expressed by the Trial Judge in this regard must be
disregarded for the purposes of imposing an appropriate sentence
on the appellant. [Para 27][311-C-D]
Conclusion
1.5 All the courts including this Court overlooked
consideration of the probability of reform or rehabilitation and
social reintegration of the appellant into society. The Trial Court
was in error proceeding on the basis, while awarding a sentence
of death to the appellant by observing that he was a hardened
criminal. There is no such evidence on material or on record.
The socio-economic condition of the appellant was a significant
factor that ought to have been taken into consideration by the
Trial Court as well the High Court while considering the
punishment to be given to the appellant. While the socio-economic
condition of a convict is not a factor for disproving his guilt, it is
a factor that must be taken into consideration for the purposes of
awarding an appropriate sentence to a convict. The death
sentence awarded to the appellant is converted into a sentence
of imprisonment for life.  [Paras 29, 30, 31 and 33][311-F-H;
312-A-B, E-F]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 –
followed.
Surendra Pal Shivbalakpal v. State of Gujarat (2005)
3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Sushil Kumar
v. State of Punjab (2009) 10 SCC 434 ; Mulla v. State
of Uttar Pradesh (2010) 3 SCC 508 : [2010] 2 SCR
633 ; Kamleshwar Paswan v. Union Territory of
Chandigarh (2011) 11 SCC 564 : [2011] 1  SCR 647 ;
Mahesh Dhanaji Shinde v. State of Maharashtra (2014)
4 SCC 292 : [2014] 3 SCR 406 ; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009)
6 SCC 498  – relied on.
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Mohd. Arif alias Ashfaq v. The Registrar Supreme Court
of India & others (2014) 9 SCC 737 : [2014] 11 SCR
1009 ; State of U.P. v. M.K. Anthony (1985) 1 SCC 505;
Rajendra Pralhadrao Wasnik v. State of Maharashtra
Decided on 12.12.2018 by Supreme Court in Review
Petition (Criminal) Nos. 306-307 of 2013; Ramesh v.
State of Rajasthan (2011) 3 SCC 685:  [2011] 4
SCR 585 – referred to
Case Law Reference
[2014] 11 SCR 1009
referred to
Para 9
(1980) 2 SCC 684
followed
Para 15
(1985) 1 SCC 505
referred to
Para 19
[2004] 4 Suppl. SCR 464
relied on
Para 20
(2009) 10 SCC 434
relied on
Para 21
[2010] 2 SCR 633
relied on
Para 22
[2011] 1 SCR 647
relied on
Para 23
[2014] 3  SCR 406
relied on
Para 24
(2009) 6 SCC 498
relied on
Para 27
[2011] 4  SCR 585  
referred to
Para 32
CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) No. 245 of 2010 in
Criminal Appeal No. 811 of 2009.
From the Judgment and Order dated 18.09.2006 of the High Court
of Kerala at Ernakulam in Death Sentence Ref. No. 5 of 2005 and
Criminal Appeal No. 385 of 2005 (C)
Sanjay Parikh, Manoj V. George, Shilpa Liza George, Ms. Ninni
Susan Thomas, Ashita Arora, Amit Kumar, Yash S. Vijay, Ms. Sanjana
Srikumar, Rajeev Kumar Dubey, Aakarsh Kamra, Kamlendra Mishra,
Advs. for the Appellant.
K. N. Balgopal, Sr. Adv., G. Prakash, Jishnu M. L., Mrs. Priyanka
Prakash, Mrs. Beena Prakash,  Mukundan Nitya Nambiar,  Vitso Rio,
Advs. for the Respondent.
M. A. ANTONY @ ANTAPPAN v. STATE OF KERALA
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The Judgment of the Court was delivered by
MADAN B. LOKUR, J.
1. The broad allegations against the appellant have been stated in
the decision of this Court in the criminal appeal out of which the present
Review Petition arises. It would be more convenient to reproduce the
allegations from the decision:
“On the intervening night of 6th and 7th January, 2001, when inmates
of Aluva Municipal Town of Ernakulam District in the State of
Kerala were in deep sleep, Manjooran House located in the midst
of the town became a scene of ghastly crime. Six members of
one family in the Manjooran House lost their lives in a matter of
three hours, Antony @ Antappan, the appellant herein, in search
of greener pastures abroad for which purpose he needed money
but was refused to be paid by the members of the Manjooran
family, and therefore as per the prosecution’s version used knife,
axe, and electrocuted and strangulated Kochurani and Clara at
about 10 in the night of 6.1.2001 and Augustine, his wife Mary,
and their children – Divya and Jesmon at midnight.  The Manjooran
House full of life at 10 in the night by the stroke of midnight became
a graveyard.  The appellant after causing the death of Kochurani
and Clara is said to have waited for the arrival of other four
members of the family who had gone to see a film show.  On their
arrival he turned them into corpses.  He waited for their arrival to
kill them as he knew that for the two
murders committed earlier
by him he would be suspected by them, as he was in the house
when they left the house for the film show.  The prosecution
alleges that all these murders were cold blooded, planned and
executed with precision and the appellant ensured that there is no
trace of life left in them before he left the scene of occurrence.
When put to trial for murders, appellant, however, pleaded
innocence and claimed trial.”
2. After trial, the Sessions Court in Ernakulam in Kerala in Sessions
Case No.154 of 2004 found the appellant guilty of the offences and
convicted him by judgment and order dated 31st January, 2005. It appears
that submissions on the question whether the appellant should be awarded
life sentence or death sentence were addressed on the same day or
immediately thereafter since on 2nd February, 2005 the Trial Judge
sentenced the appellant “to be hanged by the neck till he is dead”.
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3. The Trial Judge stated, while awarding the sentence of death,
as follows:
“231. The cruel tendency of the accused was writ large even in
the manner of attack.  His conduct and behaviour is repulsive to
the collective conscience of the society.  It is clear that he does
not value the lives of others in the least.  The fact that the murders
in this case were committed in such a deliberate and diabolic
manner even beyond the slight expectation of the victims, without
any provocation whatsoever from the side of the victims that too
having enjoyed the hospitality and kindness of the victims, indicate
the cold blooded and premeditated approach of the accused to
put to death the victims which included two innocent children in
their earlier teenages also, for a sordid purpose.
232. It was clearly come out that his wife and child are not residing
with the accused.  He does not know even the school at which his
wife is working as teacher.  Even according to him, she has not
cared to come to reside with him after the incident in this case.  In
fact, all my searches for extenuating circumstances in this case
are in vain.  From various judicial pronouncements of the Hon’ble
Supreme Court of India on the subject, it has come out that in the
choice of sentence the court has to weigh the aggravating and
mitigating factors available on the facts of the case to find out
whether special reasons do exist to categories [categorize] the
case as one among the “rarest of rare
cases”.
233. The accused is a hardened criminal beyond any correction
and rehabilitation.  In this case the culpability has assumed the
preparation of extreme depravity.  The accused is a preferred
example of blood thirsty, irreclaimable and hardened criminal.  This
court is of the view that, to spare such a criminal from the gallows
is to render the justicing system suspect and to have recourse to
the lesser alternative in sentencing this accused will be a mockery
of justice.  As this incident had sent tremors in the society and the
collective conscience of the community as such was shocked, it
is not to be humane but to be callous to allow such a criminal to
return to the society.  When multiple murders are committed in
the most cruel, inhuman, extreme, brutal, gruesome, diabolic,
revolting and dastardly manner, this court cannot wriggle out of
the infliction of the extreme penalty.  Matters being so, special
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reasons do exist in this case under Section 354(3) Cr. P.C. and
this case comes within the category of “rarest of rare case” in
which the “lesser alternative is unquestionably foreclosed.”
4. The conviction and sentence came up for confirmation before
the High Court of Kerala in Death Sentence Reference No.5 of 2005.
The appellant was also aggrieved by his conviction and sentence and he
preferred Criminal Appeal No.385 of 2005 against the judgment and
sentence of the Trial Court.
5. By a judgment and order dated 18th September, 2006 the High
Court confirmed the death sentence and dismissed the appeal of the
appellant.
6. On the award of the death sentence, the High Court took the
view that the crime committed by the appellant was most cruel and
diabolical.  It was observed that he had no respect, no care, no dignity,
no mercy for human life and his living in this world is most dangerous to
society. The High Court expressed its views on the sentence to be
awarded to the appellant in paragraph 49 of the judgement. This reads
as follows:
“49. On the question of sentence all that has been urged before
us by Mr. Ramakumar is that the present is not a ‘rarest of rare’
case where the appellant should be given capital punishment.  No
arguments have been raised to show any mitigating circumstances.
We have reconsidered and yet reconsidered every aspect of the
case. On every reconsideration, our view gets more and more
strengthened that in the present case, death penalty has to be
imposed.  It is indeed a rarest of rare case.  In this country of
seers and sages, even a worm unconsciously trampled under the
foot is considered to be a sin.  Guided and motivated by tradition
of non-violence, people in this country do not even think of
physically harming anyone.  Mahatma Gandhi, the Father of the
Nation and many other stalwarts brought freedom to this Nation
from the British Empire by fighting a bloodless war of
independence.  The appellant has trampled these lofty ideals and
traditions of this country under his foot.  He extinguished all
members of a family in a most cruel and gruesome manner.  He
became instrumental in causing black and unmitigated tragedy
and caused shudders to the society.  In causing death of six
members of a family, he acted in a most cruel and diabolical
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manner.  He used every possible instrument in the house to cause
their death.  As the confession goes if knives would not be enough
to kill the inmates, he would use furniture in the house to strike
them, and if that be not enough he would axe them, and even if
that be not enough he would electrocute them and if still not enough
he would strangulate them.  In cruelty and brutality, he exceeded
all limits.  It is unimaginable, unthinkable and difficult to believe
that after causing six murders by splashing blood all around the
house, he would sit in the same house for almost five hours as if
he was not siting amongst six dead people, but amongst trophies
won by him in a prestigious event.  He has no respect, no care, no
dignity, no mercy for human life.  His living in this world is most
dangerous to the society.  We need not refer to various judicial
precedents as every case has its own facts, but would hasten to
make reference to only one case which appears nearest on facts
of the present case.  In Dayanidhi Bisoi v. State of Orissa,
2003 Crl.L.J. 3697 (SC), a case which was based upon
circumstantial evidence, accused was related to the deceased.
He was enjoying hospitality and kindness of deceased in the
evening.  He killed entire family of deceased which included a
three years child in the night.  Murders were committed when the
victims were sleeping and there was no provocation from the
victims.  The motive was only to gain financial benefits.  The
Supreme Court found it to be case of cold blooded murder with
premeditated approach of accused.  It was held to be a rarest of
rare case.  The accused was sentenced to death.”
7. Feeling aggrieved by his conviction and confirmation of the
death sentence, the appellant preferred Criminal Appeal No. 811 of 2009
in this Court which was dismissed by a judgment and order dated 22nd
April, 2009.  This Court did not at all advert to or discuss the quantum of
sentence awarded to the appellant.  This was decided on its facts and
dismissed.
8. Feeling aggrieved by the dismissal of his appeal, the appellant
preferred Review Petition (Crl.) No.245 of 2010 but that was dismissed
by an order dated 13th April, 2010.
9. In view of the decision of this Court in Mohd. Arif alias Ashfaq
v. The Registrar Supreme Court of India & others1 the said review
petition was re-opened for consideration and that is how it is before us.
1(2014) 9 SCC 737
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Submissions
10. Learned counsel for the appellant raised a variety of grounds
for commuting the death sentence awarded to the appellant into one of
life sentence.  It was contended that the case was one of circumstantial
evidence and therefore the sentence of death should not be awarded.
It was also contended that this Court as well the High Court and the
Trial Court failed to consider the probability of reformation of the appellant.
It was also contended that the prior history and criminal antecedents of
the appellant were not relevant in awarding the sentence. It was submitted
that the Trial Judge had erroneously described the appellant as a hardened
criminal. In fact, we find that learned counsel for the appellant is correct
in this submission since there is absolutely nothing on record to show
that the appellant had previously committed any crime whatsoever. Indeed,
there is nothing on record to even suggest that the appellant was a
hardened criminal.
11. We do not propose to deal with the submissions advanced by
learned counsel since similar submissions were raised before us in
Rajendra Pralhadrao Wasnik v. State of Maharashtra in which we
have delivered judgment today.  The cases cited by learned counsel for
the appellant in this petition as well as in Rajendra Pralhadrao Wasnik
were the same and we would only be duplicating our efforts and repeating
what we have already said.
12. Apart from the above
submissions, it was contended by learned
counsel for the appellant that the socio-economic circumstances relating
to the appellant are relevant for an objective consideration of the award
of sentence and these have not been considered by any court including
this Court.
13. It was submitted that the “collective conscience of the society”
and reference to it for the purposes of imposition of a sentence is totally
misplaced. It is not possible to determine public opinion through evidence
recorded in a trial for an offence of murder and it is even more difficult,
if not impossible, to determine something as amorphous as the collective
conscience of the society.
14. Finally, it was submitted that the appellant has been in custody
for a considerable period of time and that by itself is a good ground for
commutation of his sentence from death to life imprisonment.  In this
context, it was stated that the appellant was arrested on 18th February,
2001.  He remained in custody until he was granted bail on 25th January,
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2002.  He was again arrested when the Trial Court convicted him on
31st January, 2005 and since then he is continuously in custody having
spent about 14 years in custody and about three years on bail.
Consideration of socio-economic factors
15. There is no doubt that the socio-economic factors relating to a
convict should be taken into consideration for the purposes of deciding
whether to award life sentence or death sentence. One of the reasons
for this is the perception (perhaps misplaced) that it is only convicts
belonging to the poor and disadvantaged sections of society that are
awarded capital sentence while others are not. Although Bachan Singh
v. State of Punjab2 does not allude to socio-economic factors for being
taken into consideration as one of the mitigating factors in favour of a
convict, the development of the law in the country, particularly through
the Supreme Court, has introduced this as one of the factors to be taken
into consideration. In fact, in Bachan Singh this Court recognised that
a range of factors exist and could be taken into consideration and accepted
this position. In paragraph 209 of the Report it is rather felicitously stated
as follows:
“209. There are numerous other circumstances justifying the
passing of the lighter sentence; as there are countervailing
circumstances of aggravation. “We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and
undulating society.”
Nonetheless, it cannot be over-emphasised that the scope
and concept of mitigating factors in the area of death penalty
must receive a liberal and expansive construction by the
courts in accord with the sentencing policy writ large in
Section 354(3). Judges should never be bloodthirsty.
Hanging of murderers has never been too good for them.3
Facts and Figures, albeit incomplete, furnished by the Union of
India, show that in the past, courts have inflicted the extreme
penalty with extreme infrequency — a fact which attests to the
caution and compassion which they have always brought to bear
on the exercise of their sentencing discretion in so grave a matter.
It is, therefore, imperative to voice the concern that courts, aided
by the broad illustrative guide-lines indicated by us, will discharge
the onerous function with evermore scrupulous care and humane
2(1980) 2 SCC 684
3We may add that hanging of murderers has never been too good for them either!
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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.” (Emphasis supplied by us).
16. Following the view laid down by the Constitution Bench of
this Court, we endorse and accept that socio-economic factors must be
taken into consideration while awarding a sentence particularly the ground
realities relating to access to justice and remedies to justice that are not
easily available to the poor and the needy.
17. The consideration of socio-economic factors is tied up with
another important issue (which need not necessarily or always be taken
into consideration for sentencing purposes, but could be relevant in a
given case) and that is whether the convict has had adequate legal
representation. Several accused persons belonging to the weaker sections
of society cannot afford defence counsel and they are obliged to turn to
the National Legal Services Authority, the State Legal Services Authority
or the District Legal Services Committee for legal representation. While
these authorities provide the best legal assistance possible at their
command, it
sometimes falls short of expectations resulting in the
conviction of an accused and, depending upon the facts of the case and
the sentencing process followed, a sentence of death follows.
18. That the poor are more often than not at the receiving end in
access to justice and access to the remedies available is evident from a
fairly recent report prepared by the Supreme Court Legal Services
Committee4 which acknowledges, through Project Sahyog, enormous
delays in attending to cases of the poor and the needy. Quality legal aid
to the disadvantaged and weaker sections of society is an area that
requires great and urgent attention and we hope that a vigorous beginning
is made in this direction in the new year.
19. Reverting to the issue of socio-economic factors, we are not
sure when this was introduced as a mitigating factor for consideration in
deciding whether life imprisonment or death sentence should be awarded.
Be that as it may, the earliest decision to which our attention was drawn
is State of U.P. v. M.K. Anthony5 in which this Court cautioned against
4Website of the Supreme Court Legal Services Committee – www.sclsc.nic.in
5(1985) 1 SCC 505
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being overwhelmed by the gravity or brutality of the offence. As held in
Bachan Singh, it is not only the crime that is of importance in the
sentencing process but it is also the criminal. With this in view, this Court
considered the plight of the have-not and commuted the death sentence
into one of imprisonment for life. This is what this Court said in paragraph
23 of the Report:
“23. The last question is what sentence should be imposed upon
the respondent. The learned Sessions Judge has imposed maximum
penalty that could be imposed under the law, namely, sentence of
death. The murder of near and dear ones including two innocent
kids is gruesome. We must however be careful lest the
shocking nature of crime may induce an instinctive reaction
to the dispassionate analysis of the evidence both as to
offence and the sentence. One circumstance that stands out in
favour of the respondent for not awarding capital punishment is
that the respondent did not commit murder of his near and dear
ones actuated by any lust, sense of vengeance or for gain. The
plight of an economic have-not sometimes becomes so
tragic that the only escape route is crime. The respondent
committed murder because in his utter helplessness he
could not find few chips to help his ailing wife and he saw
the escape route by putting an end to their lives. This one
circumstance is of such an overwhelming character that even
though the crime is detestable we would refrain from imposing
capital
punishment. The respondent should accordingly be
sentenced to suffer imprisonment for life.” (Emphasis supplied
by us).
20. In Surendra Pal Shivbalakpal v. State of Gujarat6 this Court
considered the socio-economic condition of the appellant therein, namely
that he was a migrant labourer and was living in impecunious
circumstances and therefore it could not be said that he would be a
menace to society in future. The sentence of death was converted into
one of imprisonment for life. This is what this Court said in paragraph 13
of the Report:
“…..The appellant was aged 36 years at the time of the
occurrence and there is no evidence that the appellant had been
involved in any other criminal case previously and the appellant
6(2005) 3 SCC 127
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was a migrant labourer from U.P. and was living in impecunious
circumstances and it cannot be said that he would be a menace to
society in future and no materials are placed before us to draw
such a conclusion. We do not think that the death penalty was
warranted in this case…...”
21. Similarly, in Sushil Kumar v. State of Punjab7 the poverty of
the convict was taken into consideration as a factor for sentencing. This
Court in paragraph 46 of the Report held as follows:
“Extreme poverty had driven the appellant to commit the
gruesome murder of three of his very near and dear family
members – his wife, minor son and daughter. There is nothing on
record to show that appellant is a habitual offender. He appears
to be a peace-loving, law abiding citizen but as he was poverty-
stricken, he thought in his wisdom to completely eliminate his family
so that all problems would come to an end. Precisely, this appears
to be the reason for him to consume some poisonous substances,
after committing the offence of murder.” (Emphasis supplied by
us).
22. In Mulla v. State of Uttar Pradesh8 this Court specifically
noted in paragraph 80 of the Report that one of the factors that appears
to have been left out in judicial decision-making on the issue of sentencing,
is the socio-economic factor which is a mitigating factor although it may
not dilute the guilt of the convict. This is what this Court held:
“80. Another factor which
unfortunately has been left out in
much judicial decision-making in sentencing is the socio-
economic factors leading to crime. We at no stage suggest
that economic depravity justify moral depravity, but we
certainly recognise that in the real world, such factors may
lead a person to crime. The 48th Report of the Law Commission
also reflected this concern. Therefore, we believe, socio-
economic factors might not dilute guilt, but they may amount
to mitigating circumstances. Socio-economic factors lead us
to another related mitigating factor i.e. the ability of the guilty to
reform. It may not be misplaced to note that a criminal who
commits crimes due to his economic backwardness is most likely
to reform. This Court on many previous occasions has held that
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8(2010) 3 SCC 508
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this ability to reform amounts to a mitigating factor in cases of
death penalty.” (Emphasis supplied by us).
23. In Kamleshwar Paswan v. Union Territory of Chandigarh9
this Court noted the fact that the convict was a rickshaw puller and a
migrant with psychological and economic pressures. The socio-economic
condition of the convict was therefore taken into consideration for the
purposes of sentencing him. It was held in paragraph 8 of the Report as
follows:
“8. We cannot also ignore the fact that the appellant was a
rickshaw-puller and a migrant in Chandigarh with the
attendant psychological and economic pressures that so
often overtake and overwhelm such persons. Village
Kishangarh is a part of the Union Territory of Chandigarh and at
a stone’s throw from its elite sectors that house the Governors of
Punjab and Haryana, the Golf Club, and some of the city’s most
important and opulent citizens. It goes without saying that most
such neighbourhoods are often the most unfriendly and indifferent
to each others’ needs. Little wonder his frustrations apparently
came to the fore leading to the horrendous incident.” (Emphasis
supplied by us).
24. Finally, in Mahesh Dhanaji Shinde v. State of Maharashtra10
it was noted that the convicts were living in acute poverty. However,
their conduct in jail was heartening inasmuch as they had educated
themselves and has shown that if given a second chance, they could live
a meaningful and constructive life. This Court noted
as follows:
“38. At the same time, all the four accused were young in age at
the time of commission of the offence i.e. 23-29 years. They
belong to the economically, socially and educationally
deprived section of the population. They were living in acute
poverty. It is possible that, being young, they had a yearning for
quick money and it is these circumstances that had led to the
commission of the crimes in question. Materials have been laid
before this Court to show that while in custody all the accused
had enrolled themselves in Yashwantrao Chavan
Maharashtra Open University and had either completed
the BA examination or are on the verge of acquiring the
degree…….. There is no material or information to show any
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condemnable or reprehensible conduct on the part of any of the
appellants during their period of custody. All the circumstances
point to the possibility of the appellant-accused being reformed
and living a meaningful and constructive life if they are to be
given a second chance…….” (Emphasis supplied by us).
25. There is, therefore, enough case law to suggest that socio-
economic factors concerning a convict must be taken into consideration
while taking a decision on whether to award a sentence of death or to
award a sentence of imprisonment for life.
26. On the facts of the present case, we find from the decision of
the Trial Court that the convict was working as a driver on a casual
basis.  He was desirous of obtaining employment in the Gulf and was
making all attempts in this direction.  He managed to arrange a visa but
had to pay the agent Rs.62,000/-. Due to severe financial constraints he
could only arrange Rs.25,000/- for making the initial payment.  He
continued making attempts to raise the amount.  His economic condition
was so severe that for the purposes of going to Gulf he had to proceed
from Ernakulam to Mumbai by train and while he could manage to
purchase the ticket, he was unable to pay for reservation charges.  Under
these circumstances, he had gone to the house of the deceased family
for getting money or by stealing it or by grabbing it by any other means.
It is under this financial and economic
stress that his presence in the
house of the deceased family was explained.  But unfortunately for him
and the deceased family, he was unable to obtain any funds from them
and this led to his decision to kill all of them.
Public opinion or collective conscience of the society
27. With regard to the second submission made by learned counsel
for the appellant, that is, relating to the collective conscience of the society
or public opinion, we draw attention to an extremely educative discussion
on the topic in Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra11 in paragraphs 80 to 89 of the Report. We do not find the
necessity of repeating the enlightening discussion. We may only note
that in this decision, reference was made with regard to this topic in
Bachan Singh in paragraph 126 of the Report to the following effect:
“126. Incidentally, the rejection by the people of the approach,
adopted by the two learned Judges in Furman12, furnishes proof
of the fact that judicial opinion does not necessarily reflect the
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12Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 (1972)
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moral attitudes of the people. At the same time, it is a reminder
that Judges should not take upon themselves the
responsibility of becoming oracles or spokesmen of public
opinion: Not being representatives of the people, if is often better,
as a matter of judicial restraint, to leave the function of assessing
public opinion to the chosen representatives of the people
in the legislature concerned.” (Emphasis supplied by us).
In our opinion therefore, the learned Trial Judge was in error in
coming to the conclusion that the collective conscience of the society
was disturbed and felt repulsed by the gravity of the crime committed by
the appellant. In view of the Constitution Bench decision of this Court in
Bachan Singh and in Bariyar it would be wise if impressions gathered
on what is perceived to be public opinion or collective conscience of the
society are eschewed while sentencing a convict found guilty of a grave
or brutal crime. On the facts of the present case, we find that there was
no material whatsoever to come to the conclusion that the gravity of the
crime caused revulsion in the society or that it had materially disturbed
normal life in the society. Consequently, the view expressed by the learned
Trial Judge in this regard must be disregarded for the purposes of imposing
an appropriate sentence on the appellant.
Conclusion
28. On an overall consideration of the facts of the case from the
point of view of the crime and the criminal, we are of
opinion that even
though the case may be one of circumstantial evidence, it is now well
settled that that by itself is not enough to convert a sentence of death
into a sentence of imprisonment for life. We have held so in Rajendra
Pralhadrao Wasnik and do not feel the necessity of repeating what
has already been said.
29. We are also of opinion that all the courts including this Court
overlooked consideration of the probability of reform or rehabilitation
and social reintegration of the appellant into society.  There is no
meaningful discussion on why, if at all, the appellant could not be reformed
or rehabilitated.
30. The Trial Court was in error proceeding on the basis, while
awarding a sentence of death to the appellant by observing that he was
a hardened criminal. There is no such evidence on material or on record.
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31. The socio-economic condition of the appellant was a significant
factor that ought to have been taken into consideration by the Trial Court
as well the High Court while considering the punishment to be given to
the appellant. While the socio-economic condition of a convict is not a
factor for disproving his guilt, it is a factor that must be taken into
consideration for the purposes of awarding an appropriate sentence to a
convict.
32. We do not think it necessary to consider on the facts of this
case, the period of incarceration of the appellant as a factor for deciding
whether or not he should be awarded the death sentence. This is a
factor that ought to have been placed before the Trial Judge and while
we could certainly take this into consideration, we hesitate to do so in
view of some uncertainty in this regard. In Ramesh v. State of
Rajasthan13 an opinion was expressed in paragraph 76 of the Report
that since the appellant therein had been languishing on death row for
more than six years that would be a mitigating circumstance in his favour.
There are a number of cases where convicts have been on death row
for more than six years and if a standard period was to be adopted,
perhaps each and every person on death row might have to be given the
benefit of commutation of death sentence to one of life imprisonment.
The long delays in courts must, of course, be taken into account, but
what is needed is a systemic
and systematic reform in criminal justice
delivery rather than ad hoc or judge-centric decisions.
33. In view of the above discussion, the death sentence awarded
to the appellant is converted into a sentence of imprisonment for life.
34. The petition stands disposed of accordingly.
13(2011) 3 SCC 685
Divya Pandey
Review petition disposed of.