RAJENDRA PRALHADRAO WASNIK versus STATE OF MAHARASHTRA
[2018] 14 S.C.R. 585, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Ratio
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RAJENDRA PRALHADRAO WASNIK
v.
STATE OF MAHARASHTRA
(Review Petition (Criminal) Nos. 306-307 of 2013)
in
(Criminal Appeal Nos. 145-146 of 2011)
DECEMBER 12, 2018
[MADAN B. LOKUR, S. ABDUL NAZEER AND
DEEPAK GUPTA, JJ.]
Administration of Criminal Justice – Capital Punishment –
Factors to be considered – Appellant convicted for the rape and
murder of a 3 year old girl – Conviction as also capital punishment
awarded to the appellant was confirmed by the High Court – Appeals
filed by the appellant before Supreme Court – Dismissed – Review
Petitions also dismissed  – However, review petitions restored in
view of Constitution Bench decision of Supreme Court in Mohd.
Arif alias Ashfaq case – Held: Ordinarily, it would not be advisable
to award capital punishment in a case of circumstantial evidence –
But there is no hard and fast rule that death sentence should not be
awarded in a case of circumstantial evidence – If the court has
some doubt, on the circumstantial evidence on record, that the
accused might not have committed the offence, then a case for
acquittal would be made out – If the court is inclined to award the
death penalty then there must be some exceptional circumstances
warranting the imposition of the extreme penalty – In the instant
case, samples were taken from the body of the accused and sent for
DNA profiling, however, the result was not produced before the trial
court – There is no explanation for this – In the absence of any
justification for
not producing the DNA evidence, it would be
dangerous, on the facts of this case, to uphold the sentence of death
of the appellant – Further, probability (not possibility or
improbability or impossibility) that a convict can be reformed and
rehabilitated in society must be seriously considered by the courts
before awarding the death sentence – It is the obligation on the
prosecution to prove, through evidence, that the probability is that
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the convict cannot be reformed or rehabilitated –  For the purposes
of sentencing, the Sessions Judge, the High Court as well as Supreme
Court did not take into consideration the probability of reformation,
rehabilitation and social re-integration of the appellant into society
– Further, trial court was also in error in taking into consideration,
for the purposes of sentencing, the pendency of two similar cases
against the appellant which it could not, in law, consider – However,
looking to the crimes committed by the appellant and the material
on record including his overall personality and subsequent events,
the sentence of death awarded to the appellant is commuted but the
appellant should not be released from custody for the rest of his
normal life – Penal Code, 1860– ss.376(2)(f), 377 and 302–
Evidence Act, 1872 – s.54 – CrPC, 1973 – s.354.
Evidence – DNA – Forensic science – Importance of – Held:
DNA profiling is an extremely accurate way of comparing specimens
and such testing can make a virtually positive identification – Where
DNA profiling has not been done or it is held back from the Trial
Court, an adverse consequence would follow for the prosecution –
Cr.P.C., 1973 – ss.53-A, 164-A.
Sentence/Sentencing – Prior history of the convict or criminal
antecedents – If to be considered – Held: Mere pendency of one or
more criminal cases against a convict cannot be a factor for
consideration while awarding a sentence – Not only is it statutorily
impermissible (except in some cases) but even otherwise it violates
the fundamental presumption of innocence – a human right - that
everyone is entitled to.
Disposing of the review petitions, the Court
HELD: 1.1 Ordinarily, it would not be advisable to award
capital punishment in a case of circumstantial evidence. But there
is no hard and fast rule that death sentence should not be awarded
in a case of circumstantial evidence. The precautions that must
be taken by all the courts in cases of circumstantial evidence is
this: if the court has some doubt, on the circumstantial evidence
on record, that the accused might not have committed the offence,
then a case for acquittal would be made out; if the court has no
doubt, on the circumstantial evidence, that the accused is guilty,
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then of course a conviction must follow. If the court is inclined to
award the death penalty then there must be some exceptional
circumstances warranting the imposition of the extreme penalty.
Even in such cases, the court must follow the dictum laid down in
Bachan Singh that it is not only the crime, but also the criminal
that must be kept in mind and any alternative option of
punishment is unquestionably foreclosed. The reason for the
second precaution is that the death sentence, upon execution, is
irrevocable and irretrievable. [Para 29][606-C-F]
Reform, rehabilitation and re-integration into society
1.2 The probability (not possibility or improbability or
impossibility) that a convict can be reformed and rehabilitated in
society must be seriously and earnestly considered by the courts
before awarding the death sentence. This is one of the mandates
of the “special reasons” requirement of Section 354(3) of the
Cr.P.C. and ought not to be taken lightly since it involves snuffing
out the life of a person. To effectuate this mandate, it is the
obligation on the prosecution to prove to the court, through
evidence, that the probability is that the convict cannot be
reformed or rehabilitated. This can be achieved by bringing on
record, inter alia, material about his conduct in jail, his conduct
outside jail if he has been on bail for some time, medical evidence
about his mental make-up, contact with his family and so on.
Similarly, the convict can produce
evidence on these issues as
well.  [Para 45][612-D-F]
1.3 If an inquiry of this nature is to be conducted, as is
mandated by the decisions of this Court, it is quite obvious that
the period between the date of conviction and the date of awarding
sentence would be quite prolonged to enable the parties to gather
and lead evidence which could assist the Trial Court in taking an
informed decision on the sentence.  But, there is no hurry in this
regard, since in any case the convict will be in custody for a fairly
long time serving out at least a life sentence.  It is for the
prosecution and the courts to determine whether such a person,
notwithstanding his crime, can be reformed and rehabilitated. To
obtain and analyse this information is certainly not an easy task
but must nevertheless be undertaken. The process of
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rehabilitation is also not a simple one since it involves social re-
integration of the convict into society.  Of course, notwithstanding
any information made available and its analysis by experts coupled
with the evidence on record, there could be instances where the
social re-integration of the convict may not be possible. If that
should happen, the option of a long duration of imprisonment is
permissible.  [Paras 46, 47][612-F-G; 613-D-E]
1.4 In other words, directing imprisonment for a period
greater than 14 years (say 20 or 25 years) could unquestionably
foreclose the imposition of a sentence of death, being an
alternative option to capital punishment.  [Para 48][613-E-F]
DNA evidence
2.1 While Section 53-A of the Cr.P.C. is not mandatory, it
certainly requires a positive decision to be taken.  There must
be reasonable grounds for believing that the examination of a
person will afford evidence as to the commission of an offence of
rape or an attempt to commit rape.  If reasonable grounds exist,
then a medical examination as postulated by Section 53-A(2) of
the Cr.P.C. must be conducted and that includes examination of
the accused and description of material taken from the person of
the accused for DNA profiling.  Similarly, Section 164-A of the
Cr.P.C. requires, wherever possible, for the medical examination
of a victim of rape.  Of course, the consent of the victim is
necessary and
the person conducting the examination
must be competent to medically examine the victim.
[Paras 49, 50][613-F-H; 614-A, B-C]
2.2 For the prosecution to decline to produce DNA evidence
would be a little unfortunate particularly when the facility of DNA
profiling is available in the country.  The prosecution would be
well advised to take advantage of this, particularly in view of the
provisions of Section 53-A and Section 164-A of the Cr.P.C. It is
not being suggested that if there is no DNA profiling, the
prosecution case cannot be proved but  certainly that where DNA
profiling has not been done or it is held back from the Trial Court,
an adverse consequence would follow for the prosecution.
[Para 54][615-G-H; 616-A]
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2.3 There is no dispute that samples were taken from the
body of the accused and sent for DNA profiling. However, the
result was not produced before the Trial Court.  There is
absolutely no explanation for this and in the absence of any
justification for not producing the DNA evidence, it would be
dangerous, on the facts of this case, to uphold the sentence of
death on the appellant. [Para 57][616-F-H]
Prior history of the convict or criminal antecedents
3.1 The history of the convict, including recidivism cannot,
by itself, be a ground for awarding the death sentence. There
could be a situation where a convict has previously committed an
offence and has been convicted and sentenced for that offence.
Thereafter, the convict commits a second offence for which he is
convicted and sentence is required to be awarded. This does not
pose any legal challenge or difficulty. But, there could also be a
situation where a convict has committed an offence and is under
trial for that offence. During the pendency of the trial he commits
a second offence for which he is convicted and in which sentence
is required to be awarded. Sections 54 of the Indian Evidence
Act, 1872 prohibits the use of previous bad character evidence
except when the convict himself chooses to lead evidence of his
good character.  The implication of this clearly is that the past
adverse conduct of the convict ought not to be taken into
consideration for the purposes of determining the
quantum of
sentence, except in specified circumstances.
[Paras 58, 59][617-A-D]
3.2 The mere pendency of one or more criminal cases
against a convict cannot be a factor for consideration while
awarding a sentence. Not only is it statutorily impermissible
(except in some cases) but even otherwise it violates the
fundamental presumption of innocence – a human right - that
everyone is entitled to. In the present case there are two cases
pending against the appellant for similar offences.  Both these
were pending trial. Notwithstanding this, the Trial Judge took
this into account as a circumstance against the appellant.  It would
have been far more appropriate for the Sessions Judge to have
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waited, if he thought it necessary to take the pendency of these
cases into consideration, for the trials to be concluded.
[Paras 73, 74][623-B-D]
3.3 A Trial Judge can take his time and sentence the convict
after giving adequate opportunity for the prosecution as well as
for the defence to produce material so that the possibility of
awarding life sentence is open to the Trial Judge as against the
death sentence. Sentence of death should be awarded only in the
rarest of rare cases, only if an alternative option is unquestionably
foreclosed and only after full consideration of all factors keeping
in mind that a sentence of death is irrevocable and irretrievable
upon execution. While the crime is important, the criminal is
equally important insofar as the sentencing process is concerned.
A perusal of the website of the eCourts Project of the eCommittee
of the Supreme Court revealed that in fact there were a total of
four cases against the appellant, including the present case. It is
not informed whether the conviction orders passed
against the appellant have been set aside or not.
[Paras 75, 77][623-F-H; 624-C; 625-B]
Conclusion
4. Insofar as the present petition is concerned, for the
purposes of sentencing, the Sessions Judge, the High Court as
well as this Court did not take into consideration the probability
of reformation, rehabilitation and social re-integration of the
appellant into
society. Indeed, no material or evidence was placed
before the courts to arrive at any conclusion in this regard one
way or the other and for whatever it is worth on the facts of this
case.  The prosecution was remiss in not producing the available
DNA evidence and the failure to produce material evidence must
lead to an adverse presumption against the prosecution and in
favour of the appellant for the purposes of sentencing.  The Trial
Court was also in error in taking into consideration, for the
purposes of sentencing, the pendency of two similar cases against
the appellant which it could not, in law, consider. However, one
also cannot overlook subsequent developments with regard to
the two (actually three) similar cases against the appellant.  For
all these reasons, it would be more appropriate looking to the
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crimes committed by the appellant and the material on record
including his overall personality and subsequent events, to
commute the sentence of death awarded to the appellant but it is
directed that he should not be released from custody for the rest
of his normal life. [Paras 79,  80][625-D-H; 626-A-B]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 –
followed.
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;
Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC
317 : [2013] 16 SCR 616 – relied on.
Shivaji alias Dadya Shankar Alhat v. State of
Maharashtra (2008) 15 SCC 269 : [2008] 13 SCR 81
; State of Maharashtra v. Shankar Krisanrao Khade
2008 ALL MR (Cri) 2143; Shankar Kisanrao Khade
v. State of Maharashtra (2013) 5 SCC 546 : [2013] 6
SCR 949 ; Laxman Naik v. State of Orissa (1994) 3
SCC 381 : [1994] 2 SCR 94 ; Dhananjoy Chatterjee
alias Dhana v. State of W.B. (1994) 2 SCC 220 : [1994]
1 SCR 37 ; State of Maharashtra v. Bharat Fakira
Dhiwar (2002) 1 SCC 622 : [2001] 5 Suppl. SCR 12 ;
State of Maharashtra v. Suresh (2000) 1 SCC 471 :
[1999] 5 Suppl. SCR 215 ; Adu Ram v. Mukna (2005)
10 SCC 597 : [2004] 5 Suppl. SCR 314 ; Molai and
Another v. State of M.P. (1999) 9 SCC 581 : [1999] 4
Suppl. SCR104 ; Rajendra Pralhadrao Wasnik v. State
of Maharashtra (2012) 4 SCC 37 : [2012] 2 SCR
225 ; Mohd. Arif alias Ashfaq v. Registrar, Supreme
Court of India (2014) 9 SCC 737: [2014] 11 SCR 1009;
Bishnu Prasad Sinha v.
State of Assam (2007) 11 SCC
467 : [2007] 1 SCR 916; Aloke Nath Dutta v. State of
West Bengal (2007) 12 SCC 230: [2006] 10 Suppl. SCR
662 ; Swamy Shraddananda v. State of Karnataka
(2007) 12 SCC 288 : [2007] 7 SCR 616 ; Swamy
Shradddananda (2) v. State of Karnataka (2008) 13
SCC 767 : [2008] 11 SCR 93 ; Sebastian v. State of
Kerala (2010) 1 SCC 58 : [2010] 1 SCC 58 ; Ramesh
v. State of Rajasthan (2011) 3 SCC 685: [2011] 4 SCR
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585 ; Kalu Khan v. State of Rajasthan (2015) 16 SCC
492 ; Prakash Dhawal Khairnar (Patil) v. State of
Maharashtra  (2002) 2 SCC 35 : [2001] 5 Suppl.
 SCR 612 ; Lehna v. State of Haryana (2002) 3 SCC
76 : [2002] 1 SCR 377 ; Sandesh v. State of
Maharashtra (2013) 2 SCC 479 : [2012] 13 SCR
1049 ; Mohinder Singh v. State of Punjab (2013) 3 SCC
294 : [2013] 3 SCR 90 ; Birju v. State of Madhya
Pradesh (2014) 3 SCC 421: [2014] 1 SCR 1047; Anil
v. State of Maharashtra (2014) 4 SCC 69: [2014]
3 SCR 34; Mahesh Dhanaji Shinde v. State of
Maharashtra (2014) 4 SCC 292:[2014] 3 SCR 406;
Chhannu Lal Verma v. State of Chhattisgarh Decided
by Supreme Court on 28.11.2018 in Criminal Appeal
Nos.1482 & 1483 of 2018; Sangeet v. State of Haryana
(2013) 2 SCC 452 ; State of Gujarat v. Kishanbhai
(2014) 5 SCC 108: [2014] 1 SCR 197 ; Mukesh and
Anr. v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017] 6
SCR 1;
Selvi v. State of Karnataka  (2010) 7 SCC
263 : [2010] 5 SCR 381 ; Mohd. Farooq Abdul Gafur
v. State of Maharashtra (2010) 14 SCC 641 : [2009]
12 SCR 1093 ;
Gurmukh Singh v. State of Haryana
(2009) 15 SCC 635 : [2009] 13 SCR 548 ; Bantu v.
State of M.P (2001) 9 SCC 615 : [2001] 4 Suppl. SCR
298 ; Amit v. State of Maharashtra (2003) 8 SCC 93 :
[2003] 2 Suppl. SCR 285 ;  Rahul v. State of
Maharashtra (2005) 10 SCC 322 ; Surendra Pal
Shivbalakpal v. State of Gujarat (2005) 3 SCC 127 :
[2004] 4 Suppl. SCR 464 ; Her
Majesty The Queen v.
Norman Skolnick [1982] 2 SCR 47  – referred to.
Scott Nathan Schluter v. Robin Laurence Trenerry (1997)
6 NTLR 194 – referred to.
Case Law Reference
(1980) 2 SCC 684
followed
Para 2
[2008] 13 SCR 81
referred to
Para 4
[2013] 6 SCR 949
referred to
Para 5
[1994] 2 SCR 94
referred to
Para 8
[1994] 1 SCR 37
referred to
Para 8
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[2001] 5 Suppl. SCR 12
referred to
Para 8
[1999] 5 Suppl. SCR 215
referred to
Para 8
[2004] 5 Suppl. SCR 314
referred to
Para 8
[1999] 4 Suppl. SCR 104
referred to
Para 8
[2012] 2 SCR 225
referred to
Para 10
[2014] 11 SCR 1009
referred to
Para 12
[2007] 1 SCR 916
referred to
Para 18
[2006] 10 Suppl. SCR 662
referred to
Para 19
[2007] 7 SCR 616
referred to
Para 20
[2008] 11 SCR 93
referred to
Para 22
[2009] 9 SCR 90
relied on
Para 24
[2010] 1 SCC 58
referred to
Para 25
[2011] 4 SCR 585
referred to
Para 26
[2013] 16 SCR 616
referred to
Para 27
(2015) 16 SCC 492
referred to
Para 28
[2001] 5 Suppl.  SCR 612
referred to
Para 33
[2002] 1 SCR 377
referred to
Para 34
[2012] 13 SCR 1049
referred to
Para 37
[2013] 3 SCR 90
referred to
Para 38
[2014] 1 SCR 1047
referred to
Para 39
[2014] 3 SCR 34
referred to
Para 40
[2014] 3 SCR 406
referred to
Para 41
(2013) 2 SCC 452
referred to
Para 47
[2014] 1 SCR 197
referred to
Para 52
[2017] 6 SCR 1
referred to
Para 53
[2010] 5 SCR 381
referred to
Para 56
[2009] 12 SCR 1093
referred to
Para 65
[2009] 13 SCR 548
referred to
Para 66
[2001] 4 Suppl. SCR 298
referred to
Para 67
[2003] 2 Suppl. SCR 285
referred to
Para 68
(2005) 10 SCC 322
referred to
Para 70
[2004] 4 Suppl. SCR 464
referred to
Para 70
[1982] 2 SCR 47
referred to
Para 71
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CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) Nos. 306-307 of 2013.
IN
Criminal Appeal Nos. 145-146 of 2011
From the Judgment and Order dated 26.03.2009 of the High Court
of Judicature at Bombay, Nagpur Bench at Nagpur in Criminal
Confirmation Case No. 3 of 2008 with Criminal Appeal No. 700 of 2008.
Yug Mohit Chaudhry, Siddhartha, Payoshi, S. Prabu
Ramasubramanian, Pandiarajan,  William Vinothkumar, S. Gowthaman
Advs. for the Appellant.
Nishant Ramakantrao Katneshwarkar, Ms. Deepa Kulkarni,
Anoop Kandari , Advs. for the Respondent.
The Judgment of the Court was delivered by
MADAN B. LOKUR, J.
1. ‘Sentenced to death’ – these few words would have a chilling
effect on anyone, including a hardened criminal. Our society demands
such a sentence on grounds of its deterrent effect, although there is no
conclusive study on its deterrent impact. Our society also demands death
sentence as retribution for a ghastly crime having been committed,
although again there is no conclusive study whether retribution by itself
satisfies society. On the other hand, there are views that suggest that
punishment for a crime must be looked at with a more humanitarian lens
and the causes for driving a person to commit a heinous crime must be
explored. There is also a view that it must be determined whether it is
possible to reform, rehabilitate and socially reintegrate into society even
a hardened
criminal along with those representing the victims of the
crime.
2. These conflicting views make it very difficult for courts to take
a decision and without expert evidence on the subject, courts are ill-
equipped to form an objective opinion. But, a Constitution Bench of this
Court in Bachan Singh v. State of Punjab1 has thrown its weight behind
a humanitarian approach and mandated consideration of the probability
of reform or rehabilitation of the criminal and required the prosecution to
prove that it was not possible for the convict to be reformed or
rehabilitated. However, the Constitution Bench left open a corridor of
1(1980) 2 SCC 684
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uncertainty thereby permitting, in the rarest of rare cases, the
pronouncement of a sentence of death.  It is this paradigm that confronts
us in these petitions.
Background
3. The appellant is convicted for the rape and murder of a girl
aged 3 years.  The offence was committed in the intervening night of
2nd and 3rd March, 2007.  On the basis of circumstantial evidence led
by the prosecution, the appellant was found guilty of and convicted for
offences punishable under Sections 376(2)(f), 377 and 302 of the Indian
Penal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No.
183 of 2007 by a judgment dated 6th September, 2008.
4. With regard to the sentence to be awarded, the Trial Judge
heard the prosecution and the appellant on 6th September, 2008 and
again on 8th September, 2008 on which date he passed a preliminary
order.  The submissions of the Public Prosecutor as well as the learned
counsel for the defence were heard on that date and reference was
made to a decision of this Court in Shivaji alias Dadya Shankar Alhat
vs. State of Maharashtra2. In the decision rendered by this Court it
was observed in paragraph 27 of the Report as follows:
“27. The plea that in a case of circumstantial evidence death
should not be awarded is without any logic. If the circumstantial
evidence is found to be of unimpeachable character in establishing
the guilt of the accused, that forms the foundation for conviction.
That has nothing to do with the question of
sentence as has been
observed by this Court in various cases while awarding death
sentence. The mitigating circumstances and the aggravating
circumstances have to be balanced. In the balance sheet of such
circumstances, the fact that the case rests on circumstantial
evidence has no role to play. In fact in most of the cases where
death sentences are awarded for rape and murder and the like,
there is practically no scope for having an eyewitness. They are
not committed in the public view. But the very nature of things in
such cases, the available evidence is circumstantial evidence. If
the said evidence has been found to be credible, cogent and
trustworthy for the purpose of recording conviction, to treat that
evidence as a mitigating circumstance, would amount to
consideration of an irrelevant aspect. The plea of the learned
2(2008) 15 SCC 269
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amicus curiae that the conviction is based on circumstantial
evidence and, therefore, the death sentence should not be
awarded is clearly unsustainable.” (Emphasis supplied by us).
Thereafter, the learned Sessions Judge passed an order on 10th
September, 2008 awarding the sentence of death to the appellant.
5. We have gone through the orders passed on 8th September,
2008 as well as on 10th September, 2008 and find that the Sessions
Judge has primarily discussed the nature and gravity of the offence and
certain factors personal to the appellant such as the fact the he has a
child who is 9 years of age and his parents are dependent upon him.
The Sessions Judge also took into consideration the fact that there are
two other cases pending against the appellant under similar provisions of
law and he expressed the opinion that the pendency of those cases is a
circumstance against the appellant.  For this, reliance was placed on
State of Maharashtra v. Shankar Krisanrao Khade3. It may be
mentioned, en passant, that the view of the Bombay High Court in
Shankar was not accepted by this Court in Shankar Kisanrao Khade
v. State of Maharashtra4 in paragraphs 60 and 61 of the Report.
6. On an overall view of the circumstances of the case, the Sessions
Judge concluded that any alternative option of punishment is
unquestionably foreclosed and therefore the only sentence that could be
awarded to the
appellant is of capital punishment.
7. The appellant preferred an appeal against his conviction and
sentence before the Bombay High Court being Criminal Appeal No. 700
of 2008. This was heard along with Criminal Confirmation Case No. 3
of 2008.   Both these were taken up for consideration and the conviction
was upheld and capital punishment awarded to the appellant was
confirmed by the High Court by a judgment and order dated 26th March,
2009.
8. The High Court considered the question of sentence to be
awarded to the appellant. (We are not concerned with the merits of the
conviction). It appears from a reading of the judgement that learned
counsel for the appellant argued in the Bombay High Court on the
question of sentence awarded to the appellant and the primary submission
made for commuting the death sentence to life imprisonment was that
the case was one of circumstantial evidence.  Reference was made to
32008 ALL MR (Cri) 2143
4(2013) 5 SCC 546
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Laxman Naik v. State of Orissa5, Dhananjoy Chatterjee alias Dhana
v. State of W.B.6, State of Maharashtra v. Bharat Fakira Dhiwar7¸
State of Maharashtra v. Suresh8, Adu Ram v. Mukna9 and Molai
and Another v. State of M.P.10
9. Thereafter, the High Court held as follows:
“We have carefully considered the facts of the present case in
light of the above judicial precedents and find that the learned
Trial Judge rightly held that the appellant deserved capital
punishment.  The appellants conduct exhibits total disregard
for human values and shows a totally depraved, brutal and
scheming mind taking advantage of a helpless child, showing
no concern that his lust extinguished the flame of life in the
child. We, therefore, confirm the sentence of death imposed upon
the appellant for offence punishable under Section 302 of the Penal
Code.  We also dismiss the convict’s appeal and maintain his
convictions as well as sentences imposed.” (Emphasis supplied
by us).
10. Feeling aggrieved by the decision rendered by the High Court,
the appellant preferred appeals in this Court being Criminal Appeal Nos.
145-146 of 2011.  These appeals were dismissed by a judgment and
order dated 29th February, 201211.
11. Review Petitions were then filed by the appellant being R.P.
(C) Diary No. 26107 of 2012 which came to be dismissed by an order
dated 7th March, 2013.
12. Thereafter, in a completely different case, a Constitution Bench
of this Court in Mohd. Arif alias Ashfaq v.
Registrar, Supreme Court
of India12 considered two basic issues in cases where death sentence
had been pronounced by the High Court.  These two issues were: (1)
whether the hearing of cases in which death sentence has been awarded
should be by a Bench of at least three if not five judges of this Court, and
(2) whether the hearing of review petitions in death sentence cases should
not be by circulation, but should only be in open court.
5 (1994) 3 SCC 381
6 (1994) 2 SCC 220
7 (2002) 1 SCC 622
8 (2000) 1 SCC 471
9 (2005) 10 SCC 597
10 AIR 2000 SC 177 = (1999) 9 SCC 581
11 Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
12 (2014) 9 SCC 737
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13. In considering these issues, the Constitution Bench held that
henceforth in every appeal pending in this Court in which death sentence
has been awarded by the High Court, only a Bench of three judges will
hear the appeal.  The Constitution Bench was not persuaded to accept
the submission that the appeal should be heard by five judges.  With
regard to the oral hearing in open court, it was held that a limited oral
hearing ought to be given in cases where death sentence is awarded and
that would be applicable in pending review petitions and such review
petitions filed in future.  This direction would also apply where a review
petition is already dismissed but the death sentence is not executed.  In
such cases, the convict can apply for reopening the review petition within
one month from the date of the decision rendered by the Constitution
Bench.  However, in cases where even a curative petition is dismissed,
it would not be proper to reopen such matters.
14. In the present appeal, a curative petition had not been filed by
the appellant and therefore in view of the decision of the Constitution
Bench, the review petitions were restored by an order dated 24th March,
2015 and that is how they have come up for consideration before us
after a gap of more than 3½ years.
Submissions
15. It was submitted by learned counsel for the appellant that
there are a variety of factors that require to
be taken into consideration
while awarding the death sentence, keeping in mind the view expressed
by this Court in Bachan Singh. Despite this, learned counsel confined
himself to four principal contentions before us only on the question of
commuting the death sentence to one of life imprisonment.  The four
contentions urged were:
1.
The conviction was based on circumstantial evidence and
in such cases, the death sentence should ordinarily not be
awarded.
2.
The probability of reform and rehabilitation of the appellant
was not considered either by the Trial Court or by the High
Court or even by this Court despite several decisions
mandating such a consideration.  It was submitted that there
is a probability that the appellant can be reformed and
rehabilitated.
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3.
Vital DNA evidence was not placed before the Trial Court
or taken into consideration contrary to the provisions of
Section 53-A of the Criminal Procedure Code, 1973 (for
short ‘Cr.P.C’)13 and Section 164-A of the Cr.P.C.14
13Section 53A. Examination of person accused of rape by medical practitioner. –
(1)  When a person is arrested on a charge of committing an offence of rape or an
attempt to commit rape and there are reasonable grounds for believing that an examination
of his person will afford evidence as to the commission of such offence, it shall be
lawful for a registered medical practitioner employed in a hospital run by the Government
or by a local authority and in the absence of such a practitioner within the radius of
sixteen kilometers from the place where the offence has been committed by any other
registered medical practitioner acting at the request of a police officer not below the
rank of a sub-inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the arrested person and to use such force as
is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without
delay, examine such person and prepare a report of his examination giving the following
particulars, namely. –
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the
person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling,
and
(v) Other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be
noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.
14164A. Medical examination of the victim of rape. –  (1) Where, during the stage
when an offence of committing rape or attempt to commit rape is under investigation,
it is proposed to get the person of the woman with whom rape is alleged or attempted
to have been committed or attempted, examined by a medical expert, such examination
shall be conducted by a registered medical practitioner employed in a hospital run by
the Government or a local authority and in the absence of such  a practitioner, by any
other registered medical practitioner, with the consent of such woman or of a person
competent to give such consent on her behalf and such woman shall be sent to such
registered medical practitioner within twenty-four hours from the time of receiving the
information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman
is sent, shall, without
delay, examine her person and prepare a report of his examination giving the following
particulars, namely: –
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
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4.
The reference to the past history of the appellant was not
warranted.
We propose to deal with the submissions in seriatim.
Circumstantial evidence
16. In the cases of Laxman Naik, Dhananjoy Chatterjee and
Molai referred to by the High Court, there is no discussion one way or
the other whether the death penalty should or should not be awarded on
a conviction based on circumstantial evidence. What was discussed was
the brutality of the crime which warranted the imposition of the death
penalty. These decisions do not take forward the case of the appellant.
17. We now consider the cases cited before us by learned counsel
for the parties on the award of death sentence based on circumstantial
evidence.
18. In Bishnu Prasad Sinha v. State of Assam15 this Court
effectively accepted the proposition in paragraph 55 of the Report that
ordinarily death penalty would not be awarded if the connection is proved
by circumstantial evidence, coupled with some other factors that are
advantageous to the convict.  It was held as follows:
“55. The question which remains is as to what punishment should
be awarded. Ordinarily, this Court, having regard to the nature of
the offence, would not have differed with the opinion of the learned
Sessions Judge as also the High Court in this behalf, but it must be
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
4) The report shall specifically record that the consent of the woman or of the person
competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be
noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the
investigating officer who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination
without the consent of the woman or of any person competent to give such consent on
her behalf.
Explanation.  – For the purposes of this section, “examination” and “registered medical
practitioner” shall have the same meanings as in section 53.
15(2007) 11 SCC 467
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borne in mind that the appellants are convicted only on the basis
of the circumstantial evidence. There are authorities for the
proposition that if the evidence is proved by circumstantial
evidence, ordinarily, death penalty would not be awarded.
Moreover, Appellant 1 showed his remorse and repentance
even in his statement under Section 313 of the Code of Criminal
Procedure. He accepted his guilt.” (Emphasis supplied by us).
19. In Aloke Nath Dutta v. State of West Bengal16 the principle
that death penalty should ordinarily not be awarded in a case arising out
of circumstantial evidence was broadly accepted along with the rider
that there should be some “special reason” for awarding the death penalty.
It was held in paragraph 174 of the Report as follows:
“174. There are some precedents of this Court e.g. Sahdeo v.
State of U.P. [(2004) 10 SCC 682] and Sk. Ishaque v. State of
Bihar [(1995) 3 SCC 392] which are authorities for the proposition
that if the offence is proved by circumstantial evidence
ordinarily death penalty should not be awarded. We think
we should follow the said precedents instead and, thus, in
place of awarding the death penalty, impose the sentence of
rigorous imprisonment for life as against Aloke Nath. Furthermore
we do not find any special reason for awarding death penalty
which is imperative.” (Emphasis supplied by us).
20. In Swamy Shraddananda v. State of Karnataka17 this Court
sounded a note of caution in paragraph 87 of the
Report that convictions
based on seemingly conclusive circumstantial evidence should not be
presumed to be fool-proof. It was held:
“87.  It has been a fundamental point in numerous studies in the
field of death penalty jurisprudence that cases where the sole
basis of conviction is circumstantial evidence, have far
greater chances of turning out to be wrongful convictions,
later on, in comparison to ones which are based on fitter
sources of proof. Convictions based on seemingly conclusive
circumstantial evidence should not be presumed as foolproof
incidences and the fact that the same are based
on circumstantial evidence must be a definite factor at the
sentencing stage deliberations, considering that capital
16(2007) 12 SCC 230
17(2007) 12 SCC 288
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punishment is unique in its total irrevocability. Any
characteristic of trial, such as conviction solely resting on
circumstantial evidence, which contributes to the uncertainty in
the culpability calculus, must attract negative attention while
deciding maximum penalty for murder.” (Emphasis supplied by
us).
21. In Swamy Shraddananda the view taken by Justice S.B.
Sinha was that on the facts of the case, death sentence was not warranted
but that the appellant should be awarded life sentence which must be
meant as sentence for life.  However, Justice Markandey Katju differed
on the sentence to be awarded and expressed the view that the case
was one where the murder was cold-blooded, calculated and diabolic.
The learned Judge was of opinion that the case fell within the category
of rarest of rare cases and it would be a travesty of justice if the death
sentence is not affirmed.  Accordingly, the learned Judge affirmed the
death sentence.
22. In view of the difference of opinion with regard to the quantum
of punishment, the matter was referred to a larger Bench of three learned
judges. The decision of the larger Bench is reported as Swamy
Shradddananda (2) v. State of Karnataka18.
23. The larger Bench took the view that the case was one of
circumstantial evidence only.  However, considering the entire facts of
the case, the Bench expressed its opinion on the quantum of punishment
taking
into consideration the gap in imprisonment between life
imprisonment (which is normally 14 years) and death.  While considering
this, it was held that in view of the gap, the Court might be tempted into
endorsing the death penalty but that it would be far more just, reasonable
and a proper course of action to expand the options and bridge the gap.
This would be a re-assertion of the Constitution Bench decision in Bachan
Singh besides being in accord with the modern trends of penology.
Consequently, the death sentence was unanimously substituted by life
imprisonment with a direction that the convict must not be released from
prison for the rest of his life or for the actual term as specified in the
order, as the case may be.  The view expressed by Justice S.B. Sinha
was endorsed and it was directed that the convict shall not be released
from prison till the rest of his life.  The view expressed by this Court in
paragraphs 92 to 95 of the Report is reproduced below:
18(2008) 13 SCC 767
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“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 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 years’ imprisonment would amount
to no
punishment at all.
93. Further, the formalisation of a special category of sentence,
though for an extremely few number of cases, shall have the
great advantage of having the death penalty on the statute book
but to actually use it as little as possible, really in the rarest of rare
cases. This would only be a reassertion of the Constitution Bench
decision in Bachan Singh [(1980) 2 SCC 684] besides being in
accord with the modern trends in penology.
94. In the light of the discussions made above we are clearly of
the view that there is a good and strong basis for the Court to
substitute a death sentence by life imprisonment or by a
term in excess of fourteen years and further to direct that the
convict must not be released from the prison for the rest of his life
or for the actual term as specified in the order, as the case may
be.
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95. In conclusion, we agree with the view taken by Sinha, J. We
accordingly substitute the death sentence given to the
appellant by the trial court and confirmed by the High Court
by imprisonment for life and direct that he shall not be
released from prison till the rest of his life. (Emphasis supplied
by us).”
24. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra19 this Court clearly laid down the law in paragraph 167 of
the Report to the effect 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 (2), this Court did not lay down a firm law that in
a case involving circumstantial evidence, imposition of death
penalty would not be permissible. But, even in relation thereto the
question which 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 the circumstantial evidence, the
circumstantial evidence
must be such which leads to an
exceptional case.” (Emphasis supplied by us).
25. In Sebastian v. State of Kerala20 there is a brief reference to
death penalty in a case of circumstantial evidence in paragraphs 17 and
18 of the Report. While commuting the death sentence to one of life
imprisonment, this Court relied upon Swamy Shraddananda (2) and
held:
“17. The learned counsel for the appellant has finally urged that
the death sentence in the circumstances was not called for. He
has pointed out that the case rested on circumstantial evidence
and the death penalty should not ordinarily be awarded in such a
case. It has further been emphasised that the appellant was a
young man of 24 years of age at the time of the incident.
19(2009) 6 SCC 498
20(2010) 1 SCC 58
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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
Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767]
as his continuance as a member of an ordered society is
uncalled for.” (Emphasis supplied by us).
26. In Ramesh v. State of Rajasthan21 this Court referred to
Bariyar and in paragraph 68 and paragraph 69 of the Report, it was
held:
“68. ……… The Court, thus, has in a guided manner referred to
the quality of evidence and has sounded a note of caution that in
a case where the reliance is on circumstantial evidence, that factor
has to be taken into consideration while awarding the death
sentence. This is also a case purely on the circumstantial evidence.
We should not be understood to say that in all cases of
circumstantial evidence, the death sentence cannot be
given.
69. In fact in Shivaji v. State of Maharashtra this Court had
awarded death sentence though the evidence was of circumstantial
nature. All that we say is that the case being dependent upon
circumstantial evidence is one of the relevant
considerations. We have only noted it as one of the circumstances
in formulating the sentencing policy……...” (Emphasis supplied
by us).
27. In Sushil Sharma v. State (NCT of Delhi)22 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. It was held in
paragraph 101 of the Report as follows:
“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
21(2011) 3 SCC 685
22(2014) 4 SCC 317
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or solely on approver’s evidence. Where murder, though brutal, is
committed driven by extreme emotional disturbance and it does
not have enormous proportion, the option of life imprisonment has
been exercised in certain cases…….” (Emphasis supplied by us).
28. Finally, in Kalu Khan v. State of Rajasthan23 this Court
referred to Swamy Shraddananda and in paragraph 31 of the Report
it was held, on the facts of the case, that the balance of circumstances
introduces 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.
29. The result of the above discussion is that ordinarily, it would
not be advisable to award capital punishment in a case of circumstantial
evidence. But there is no hard and fast rule that death sentence should
not be awarded in a case of circumstantial evidence. The precautions
that must be taken by all the courts in cases of circumstantial evidence
is this: if the court has some doubt, on the circumstantial evidence on
record, that the accused might not have committed the offence, then a
case for acquittal would be made out; if the court has no doubt, on the
circumstantial evidence, that the accused is guilty, then of course a
conviction must follow. If the court is inclined to award the death penalty
then there must be some exceptional
circumstances warranting the
imposition of the extreme penalty.  Even in such cases, the court must
follow the dictum laid down in Bachan Singh that it is not only the
crime, but also the criminal that must be kept in mind and any alternative
option of punishment is unquestionably foreclosed. The reason for the
second precaution is that the death sentence, upon execution, is
irrevocable and irretrievable.
30. Insofar as the present case is concerned, learned counsel for
the appellant did not lay much stress on commuting the death sentence
to one of life imprisonment only on the basis of the circumstantial
evidence on record. Therefore, we need not examine the nature of the
crime and other factors or detain ourselves in this regard. We have
referred to the various decisions cited by learned counsel only for
completeness of the record and to reaffirm the view that ordinarily
death sentence should not be awarded in a conviction based on
circumstantial evidence.
23(2015) 16 SCC 492
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Reform, rehabilitation and re-integration into society
31. The discussion on the reform or rehabilitation of a convict
begins with the acknowledgement in Bachan Singh that the probability
that a convict can be reformed and rehabilitated is a valid consideration
for deciding whether he should be awarded capital punishment or life
imprisonment. This Court has also accepted the view that it is for the
State to prove by evidence that the convict is not capable of being
reformed and rehabilitated and should, therefore, be awarded the death
sentence.
32. This view has been accepted universally in all the decisions
that were cited before us by learned counsel for the appellant.
33. In Prakash Dhawal Khairnar (Patil) v. State of
Maharashtra24 the probability of reform and rehabilitation of the convict
was considered by this Court. It was held that the convict did not have
any criminal tendency and was gainfully employed.  Though the crime
was heinous, it would be difficult to hold that it was the rarest of rare
cases. It could not be held that the appellant would be a menace to
society and there was no reason to believe that he could not be reformed
or rehabilitated. Accordingly, the death penalty was converted into
imprisonment for 20 years.
34. In Lehna v. State of Haryana25 it was held that the special
reasons for awarding the death sentence must be such that compel the
court to conclude that it is not possible to reform and rehabilitate the
offender. It was
said in paragraph 14 of the Report as follows:
14. ……..Death sentence is ordinarily ruled out and can only be
imposed for “special reasons”, as provided in Section 354(3). There
is another provision in the Code which also uses the significant
expression “special reason”. It is Section 361……... Section 361
which is a new provision in the Code makes it mandatory for the
court to record “special reasons” for not applying the provisions
of Section 360. Section 361 thus casts a duty upon the court to
apply the provisions of Section 360 wherever it is possible to do
so and to state “special reasons” if it does not do so. In the
context of Section 360, the “special reasons” contemplated
by Section 361 must be such as to compel the court to hold
that it is impossible to reform and rehabilitate the offender
24(2002) 2 SCC 35
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after examining the matter with due regard to the age,
character and antecedents of the offender and the
circumstances in which the offence was committed. This is
some indication by the legislature that reformation and
rehabilitation of offenders and not mere deterrence, are
now among the foremost objects of the administration of
criminal justice in our country. Section 361 and Section 354(3)
have both entered the statute-book at the same time and they are
part of the emerging picture of acceptance by the legislature of
the new trends in criminology. It would not, therefore, be wrong
to assume that the personality of the offender as revealed by his
age, character, antecedents and other circumstances and the
tractability of the offender to reform must necessarily play the
most prominent role in determining the sentence to be awarded.
Special reasons must have some relation to these factors……..”
(Emphasis supplied by us).
35. In Bariyar this Court referred to the law laid down in Bachan
Singh to the effect that capital punishment should be awarded only in
the rarest of rare cases and then held in paragraph 66 of the Report that
there must be clear evidence to indicate that the convict is incapable of
reform and rehabilitation. It was held as follows:
“66. 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 will
be pointless and completely devoid of 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 exception 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. This analysis can only be done with
rigour when the court focuses on the circumstances relating to
the criminal, along with other circumstances. This is not an easy
conclusion to be deciphered, but Bachan Singh sets the bar very
high by introduction of the rarest of rare doctrine.” (Emphasis
supplied by us).
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36. In Ramesh a reference was made to Shivaji and Bachan
Singh in paragraph 69 of the Report and it was held while reiterating the
view expressed in Bariyar that the reformation and rehabilitation of a
convict is a mitigating circumstance for the purposes of awarding
punishment and the State should, by evidence prove that the convict
was not likely to be reformed.
37. In Sandesh v. State of Maharashtra26 this Court once again
acknowledged the principle that it is for the prosecution to lead evidence
to show that there is no possibility that the convict cannot be reformed.
38. Similarly, in Mohinder Singh v. State of Punjab27 it was held
in paragraph 23 of the Report as follows:
“……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.”
(Emphasis supplied by us).
39. In Birju v. State of Madhya Pradesh28 this Court explained
the necessity of considering the probability of reform and rehabilitation
of the convict by referring to the provisions of the Probation of Offenders
Act, 1958 where a convict is placed under probation in a case where
there is a possibility of reform. It was held in paragraph 20 of the Report:
“20. In the instant case, the High Court
took the view that there
was no probability that the accused would not commit criminal
acts of violence and would constitute a continuing threat to the
society and there would be no probability that the accused could
be reformed or rehabilitated……. Courts used to apply reformative
theory in certain minor offences and while convicting persons,
the courts sometimes release the accused on probation in terms
of Section 360 CrPC and Sections 3 and 4 of the Probation of
Offenders Act, 1958. Sections 13 and 14 of the Act provide for
appointment of Probation Officers and the nature of duties to be
performed. Courts also, while exercising power under Section 4,
call for a report from the Probation Officer. In our view, while
26(2013) 2 SCC 479
27(2013) 3 SCC 294
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awarding sentence, in appropriate cases, while hearing the accused
under Section 235(2) CrPC, courts can also call for a report from
the Probation Officer……….. Courts can then examine
whether the accused is likely to indulge in commission of
any crime or there is any probability of the accused being
reformed and rehabilitated.” (Emphasis supplied by us).
40. In Anil v. State of Maharashtra29 this Court implemented the
reform and rehabilitation theory. In fact, in paragraph 33 of the Report a
direction was issued that while dealing with offences like Section 302 of
the IPC, the criminal courts may call for a report to determine whether
the convict could be reformed or rehabilitated. This Court noted the duty
of the criminal courts to ascertain whether the convict can be reformed
and rehabilitated and it is the obligation of the State to furnish materials
for and against the possibility of reform and rehabilitation. It was held as
follows:
33. In Bachan Singh this Court has categorically stated, “the
probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to the society”, is
a relevant circumstance, that must be given great weight in the
determination of sentence. This was further expressed in Santosh
Kumar Satishbhushan Bariyar. Many a times, while
determining the sentence, the courts take it for granted,
looking into the facts of a
particular case, that the accused
would be a menace to the society and there is no possibility
of reformation and rehabilitation, while it is the duty of the
court to ascertain those factors, and the State is obliged to
furnish materials for and against the possibility of
reformation and rehabilitation of the accused. The facts,
which the courts deal with, in a given case, cannot be the foundation
for reaching such a conclusion, which, as already stated, calls for
additional materials. We, therefore, direct that the criminal courts,
while dealing with the offences like Section 302 IPC, after
conviction, may, in appropriate cases, call for a report to
determine, whether the accused could be reformed or
rehabilitated, which depends upon the facts and circumstances
of each case.” (Emphasis supplied by us).
29(2014) 4 SCC 69
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41. In Mahesh Dhanaji Shinde v. State of Maharashtra30 this
Court considered the conduct of the convicts and on the facts before it,
it was concluded that they were capable of living a changed life if they
are rehabilitated in society. In any event, the State had not contended
that the convicts were beyond reformation and could not lead a changed
life if they are rehabilitated in society.
42. In Sushil Sharma this Court acknowledged that among various
factors, one of the factors required to be taken into consideration for
awarding or not awarding capital punishment is the probability of reform
and rehabilitation of the convict. This acknowledgement was made in
paragraph 103 of the Report, in which it was said:
“103. In the nature of things, there can be no hard-and-fast rules
which the court can follow while considering whether an accused
should be awarded death sentence or not. The core of a criminal
case is its facts and, the facts differ from case to case. Therefore,
the various factors like the age of the criminal, his social status,
his background, whether he is a confirmed criminal or not, whether
he had any antecedents, whether there is any possibility of
his reformation and rehabilitation or whether it is a case
where the reformation is impossible and the accused is likely
to revert to such crimes in future and become a threat to the
society are factors which the criminal court will have to examine
independently in each case. Decision whether to
impose death
penalty or not must be taken in the light of guiding principles laid
down in several authoritative pronouncements of this Court in the
facts and attendant circumstances of each case.”  (Emphasis
supplied by us).
43. At this stage, we must hark back to Bachan Singh and
differentiate between possibility, probability and impossibility of reform
and rehabilitation. Bachan Singh requires us to consider the probability
of reform and rehabilitation and not its possibility or its impossibility.
44. Finally, in a recent decision of this Court, in Chhannu Lal
Verma v. State of Chhattisgarh31 the necessity of deciding whether
30(2014) 4 SCC 292
31 Criminal Appeal Nos. 1482-1483 of 2018 [Arising out of S.L.P. (Criminal)
    Nos. 5898-5899 of 2014] Decided on November 28, 2018
RAJENDRA PRALHADRAO WASNIK v. STATE OF
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there is any probability of reformation and rehabilitation of the convict
was emphasised in cases where there is a possibility of imposition of the
death penalty. It was held in paragraph 15 of the Report as follows:
“15. ……….. No evidence as to the uncommon nature of the
offence or the improbability of reformation or rehabilitation of the
appellant has been adduced. Bachan Singh (supra) unambiguously
sets out that death penalty shall be awarded only in the rarest of
rare cases where life imprisonment shall be wholly inadequate
or futile owing to the nature of the crime and the circumstances
relating to the criminal. Whether the person is capable of
reformation and rehabilitation should also be taken into
consideration while imposing death penalty………”
(Emphasis supplied by us).
45. The law laid down by various decisions of this Court clearly
and unequivocally mandates that the probability (not possibility or
improbability or impossibility) that a convict can be reformed and
rehabilitated in society must be seriously and earnestly considered by
the courts before awarding the death sentence. This is one of the
mandates of the “special reasons” requirement of Section 354(3) of the
Cr.P.C. and ought not to be taken lightly since it involves snuffing out the
life of a person. To effectuate this mandate, it is the obligation on the
prosecution to prove to the court, through evidence, that the
probability
is that the convict cannot be reformed or rehabilitated. This can be
achieved by bringing on record, inter alia, material about his conduct in
jail, his conduct outside jail if he has been on bail for some time, medical
evidence about his mental make-up, contact with his family and so on.
Similarly, the convict can produce evidence on these issues as well.
46. If an inquiry of this nature is to be conducted, as is mandated
by the decisions of this Court, it is quite obvious that the period between
the date of conviction and the date of awarding sentence would be quite
prolonged to enable the parties to gather and lead evidence which could
assist the Trial Court in taking an informed decision on the sentence.
But, there is no hurry in this regard, since in any case the convict will be
in custody for a fairly long time serving out at least a life sentence.
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47. Consideration of the reformation, rehabilitation and re-
integration of the convict into society cannot be over-emphasised.  Until
Bachan Singh, the emphasis given by the courts was primarily on the
nature of the crime, its brutality and severity.  Bachan Singh placed the
sentencing process into perspective and introduced the necessity of
considering the reformation or rehabilitation of the convict. Despite the
view expressed by the Constitution Bench, there have been several
instances, some of which have been pointed out in Bariyar and in
Sangeet v. State of Haryana32 where there is a tendency to give primacy
to the crime and consider the criminal in a somewhat secondary manner.
As observed in Sangeet “In the sentencing process, both the crime and
the criminal are equally important.” Therefore, we should not forget
that the criminal, however ruthless he might be, is nevertheless a human
being and is entitled to a life of dignity notwithstanding his crime.
Therefore, it is for the prosecution and the courts to determine whether
such a person, notwithstanding his crime, can be reformed and
rehabilitated. To obtain and analyse this information is certainly not an
easy task but must nevertheless be undertaken. The process of
rehabilitation is also not a simple one since it involves social re-integration
of the convict into society.  Of course, notwithstanding any information
made available and its analysis by experts coupled with the evidence on
record,
there could be instances where the social re-integration of the
convict may not be possible. If that should happen, the option of a long
duration of imprisonment is permissible.
48. In other words, directing imprisonment for a period greater
than 14 years (say 20 or 25 years) could unquestionably foreclose the
imposition of a sentence of death, being an alternative option to capital
punishment.
DNA evidence
49. While Section 53-A of the Cr.P.C. is not mandatory, it certainly
requires a positive decision to be taken.  There must be reasonable grounds
for believing that the examination of a person will afford evidence as to
the commission of an offence of rape or an attempt to commit rape.  If
reasonable grounds exist, then a medical examination as postulated by
Section 53-A(2) of the Cr.P.C. must be conducted and that includes
examination of the accused and description of material taken from the
32(2013) 2 SCC 452
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person of the accused for DNA profiling.  Looked at from another point
of view, if there are reasonable grounds for believing that an examination
of the accused will not afford evidence as to the commission of an offence
as mentioned above, it is quite unlikely that a charge-sheet would even
be filed against the accused for committing an offence of rape or attempt
to rape.
50. Similarly, Section 164-A of the Cr.P.C. requires, wherever
possible, for the medical examination of a victim of rape.  Of course, the
consent of the victim is necessary and the person conducting the
examination must be competent to medically examine the victim.  Again,
one of the requirements of the medical examination is an examination of
the victim and description of material taken from the person of the woman
for DNA profiling.
51. There can be no doubt that there have been remarkable
technological advancements in forensic science and in scientific
investigations.  These must be made fully use of and the somewhat
archaic methods of investigations must be given up. In Krishna Kumar
Malik v. State of Haryana33 this Court referred to Section 53-A of the
Cr.P.C. and observed that after the enactment of this provision with
effect from 23rd June, 2006 “it has become necessary for the prosecution
to go in for DNA test in such type of cases, facilitating the prosecution
to prove its case against the accused”.
52. The
necessity of taking advantage of the advancement in
scientific investigation was the subject matter of discussion in State of
Gujarat v. Kishanbhai.34 In that case, this Court lamented the failure
of the investigating agency to take advantage of scientific investigations.
It was said:
“12.7.5. There has now been a great advancement in scientific
investigation on the instant aspect of the matter. The investigating
agency ought to have sought DNA profiling of the blood samples,
which would have given a clear picture whether or not the blood
of the victim [deleted] was, in fact on the clothes of the respondent-
accused Kishanbhai. This scientific investigation would have
unquestionably determined whether or not the respondent-accused
33(2011) 7 SCC
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was linked with the crime. Additionally, DNA profiling of the blood
found on the knife used in the commission of the crime (which the
respondent-accused Kishanbhai had allegedly stolen from
Dineshbhai Karsanbhai Thakore, PW 6), would have
uncontrovertibly determined, whether or not the said knife had
been used for severing the legs of the victim [deleted], to remove
her anklets.
12.7.6. In spite of so much advancement in the field of
forensic science, the investigating agency seriously erred
in not carrying out an effective investigation to genuinely
determine the culpability of the respondent-accused Kishanbhai.”
(Emphasis supplied by us).
53. More recently, in Mukesh and Anr. v. State (NCT of Delhi)35
there is a brief reference to Section 53-A and Section 164-A of the
Cr.P.C. What is important in this brief reference is the acknowledgment
that DNA evidence is being increasingly relied upon by courts.  It was
observed in paragraphs 216 and 217 as follows:
“216.  In our country also like several other developed and
developing countries, DNA evidence is being increasingly
relied upon by courts.  After the amendment in the Criminal
Procedure Code by the insertion of Section 53A by Act 25 of
2005, DNA profiling has now become a party of the statutory
scheme.  Section 53A relates to the examination of a person
accused of rape by a medical practitioner.”
“217. Similarly, under Section 164A inserted by Act 25 of 2005,
for medical examination of the victim of
rape, the description of
material taken from the person of the woman for DNA profiling
is must.” (Emphasis supplied by us).
54. For the prosecution to decline to produce DNA evidence would
be a little unfortunate particularly when the facility of DNA profiling is
available in the country.  The prosecution would be well advised to take
advantage of this, particularly in view of the provisions of Section 53-A
and Section 164-A of the Cr.P.C. We are not going to the extent of
suggesting that if there is no DNA profiling, the prosecution case cannot
35(2017) 6 SCC 1
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be proved but we are certainly of the view that where DNA profiling
has not been done or it is held back from the Trial Court, an adverse
consequence would follow for the prosecution.
55. In Mukesh a separate opinion was delivered by Justice
Banumathi and in paragraph 455 of the Report it was held that DNA
profiling is an extremely accurate way of comparing specimens and
such testing can make a virtually positive identification.  It was stated:
“455. DNA profiling is an extremely accurate way to compare
a suspect’s DNA with crime scene specimens, victim’s DNA
on the blood-stained clothes of the accused or other articles
recovered, DNA testing can make a virtually positive
identification when the two samples match.  A DNA finger
print is identical for every part of the body, whether it is the blood,
saliva, brain, kidney or foot on any part of the body.  It cannot be
changed; it will be identical no matter what is done to a body.
Even relatively minute quantities of blood, saliva or semen at a
crime scene or on clothes can yield sufficient material for analysis.
The Experts opine that the identification is almost hundred per
cent precise.  Using this i.e. chemical structure of genetic
information by generating DNA profile of the individual,
identification of an individual is done like in the traditional method
of identifying finger prints of offenders.”  (Emphasis supplied by
us).
56. In
the context of importance of scientific and technological
advances having been made, we may recall the observation of this Court
in Selvi v. State of Karnataka36 in paragraph 220 of the Report that
“The matching of DNA samples is emerging as a vital tool for linking
suspects to specific criminal acts.”
57. Insofar as the present petitions before us are concerned, there
is no dispute that samples were taken from the body of the accused and
sent for DNA profiling.  However, the result was not produced before
the Trial Court.  There is absolutely no explanation for this and in the
absence of any justification for not producing the DNA evidence, we
are of the view that it would be dangerous, on the facts of this case, to
uphold the sentence of death on the appellant.
36(2010) 7 SCC 263
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Prior history of the convict or criminal antecedents
58. The history of the convict, including recidivism cannot, by
itself, be a ground for awarding the death sentence. This needs some
clarity. There could be a situation where a convict has previously
committed an offence and has been convicted and sentenced for that
offence. Thereafter, the convict commits a second offence for which he
is convicted and sentence is required to be awarded. This does not pose
any legal challenge or difficulty. But, there could also be a situation where
a convict has committed an offence and is under trial for that offence.
During the pendency of the trial he commits a second offence for which
he is convicted and in which sentence is required to be awarded.
59. Sections 54 of the Indian Evidence Act, 1872 prohibits the use
of previous bad character evidence except when the convict himself
chooses to lead evidence of his good character.  The implication of this
clearly is that the past adverse conduct of the convict ought not to be
taken into consideration for the purposes of determining the quantum of
sentence, except in specified circumstances.
60. There are exceptions to this general rule. For example, Section
376-E of the IPC provides as follows:
“376E. Punishment for repeat offenders. - Whoever has been
previously convicted of an offence punishable under Section 376
or Section 376-A or Section 376AB, or Section 376D or Section
376DA or Section 376DB and is subsequently
convicted of an
offence punishable under any of the said sections shall be punished
with imprisonment for life which shall mean imprisonment for the
remainder of that person’s natural life, or with death.”
61. Similarly, Section 16(2) of the Prevention of Food Adulteration
Act, 1954 provides as follows:
“16. Penalties. –
(1) xxx xxx xxx
(2) If any person convicted of an offence under this Act commits
a like offence afterwards it shall be lawful for the court before
which the second or subsequent conviction takes place to cause
the offender’s name and place of residence, the offence and the
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penalty imposed to be published at the offender’s expense in such
newspapers or in such other manner as the court may direct. The
expenses of such publication shall be deemed to be part of the
cost attending the conviction and shall be recoverable in the same
manner as a fine.”
62. Finally, it is worthwhile to refer to Section 75 of the IPC which
provides for enhanced punishment for certain offences under Chapter
XII or Chapter XVII of the IPC after previous convictions.  This Section
reads as follows:
“75. Enhanced punishment for certain offences under
Chapter XII or Chapter XVII after previous conviction.–
Whoever, having been convicted, -
(a) by a Court in India, of an offence punishable under Chapter
XII or Chapter XVII of this Code with imprisonment of either
description for a term of three years or upwards,
shall be guilty of any offence punishable under either of those
Chapters with like imprisonment for the like term, shall be subject
for every such subsequent offence to imprisonment for life, or to
imprisonment of either description for a term which may extend
to ten years.”
63. The scope of Section 75 of the IPC was discussed in the 42nd
Report of the Law Commission of India in the following words:
“[This] is an attempt to deal with the problem of habitual offenders
and recidivism.  Other penal systems also have tried to grapple
with this complex problem, but nowhere have the
attempts met
with marked success, perhaps because the causes of crime are
themselves complex.  Because the previous sentence has failed
both in its object of reforming the offender and in its object of
deterring him from crime, the law, as a measure of last resort,
concentrates on protecting society from the offender by sending
him to jail for a longer term than before.”
64. It is worthwhile to note that the three provisions of law quoted
above deal with instances where there is a prior conviction and do not
deal with the pending trial of a case involving an offence. Therefore,
37(2010) 14 SCC 641
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while it is possible to grant an enhanced sentence, as provided by statute,
for a recurrence of the same offence after conviction, the possibility of
granting an enhanced sentence where the statute is silent does not arise.
Consequently, it must be held that in terms of Section 54 of the Indian
Evidence Act the antecedents of a convict are not relevant for the
purposes of awarding a sentence, unless the convict gives evidence of
his good character.
65. The importance of a conviction as against a pending trial was
emphasised in Mohd. Farooq Abdul Gafur v. State of Maharashtra37
wherein the presumption of innocence was adverted to as a human right
and it was held in paragraph 178 of the Report:
“178. In our opinion the trial court had wrongly rejected the fact
that even though the accused had a criminal history, but there had
been no criminal conviction against the said three accused. It had
rejected the said argument on the ground that a conviction might
not be possible in each and every criminal trial. In our opinion
unless a person is proven guilty, he should be presumed
innocent. Further, nothing has been brought on behalf of the State
even after all these years, that the criminal trials that had been
pending against the accused had resulted in their conviction. Unless
the same is shown by the documents on records we would presume
to the contrary. Presumption of innocence is a human right.
The learned trial Judge should also have presumed the same
against
all the three accused. In our opinion the alleged criminal history of
the accused had a major bearing on the imposition of the death
sentence by the trial court on the three accused. That is why in
our opinion he had erred in this respect.”  (Emphasis supplied by
us).
66. However, in Gurmukh Singh v. State of Haryana38 while
this Court did not consider or discuss the prior history of the convict as a
factor for sentencing, it was noted in paragraph 23 of the Report that
one of the relevant factors for consideration before awarding an
appropriate sentence to the convict would be the number of other criminal
cases pending against him. In our opinion, this does not lay down the
correct law since it overlooks the presumption of innocence. It was held
in paragraph 23 of the Report as follows:
38(2009) 15 SCC 635
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“23. These are some factors which are required to be taken into
consideration before awarding appropriate sentence to the
accused. These factors are only illustrative in character and not
exhaustive. Each case has to be seen from its special perspective.
The relevant factors are as under:
(a) to (j) xxx xxx xxx
(k) Number of other criminal cases pending against the accused;
(l) to (m) xxx xxx
These are some of the factors which can be taken into
consideration while granting an appropriate sentence to the
accused.” (Emphasis supplied by us).
67. In Bantu v. State of M.P.39 this Court noted that there was
nothing on record to indicate that the appellant had any criminal
antecedents nor could it be said that he would be a grave danger to the
society at large despite the fact that the crime committed by him was
heinous. It was held in paragraph 8 of the Report as follows:
“8. However, the learned counsel for the appellant submitted that
in any set of circumstances, this is not the rarest of the rare case
where the accused is to be sentenced to death. He submitted that
age of the accused on the relevant day was less than 22 years. It
is his submission that even though the act is heinous, considering
the fact that no injuries were found on the deceased, it is probable
that death might have occurred because of gagging her mouth
and nosetrix [nostril] by the accused at the time of incident so
that
she may not raise a hue and cry. The death, according to him,
was accidental and an unintentional one. In the present case,
there is nothing on record to indicate that the appellant
was having any criminal record nor can it be said that he
will be a grave danger to the society at large. It is true that
his act is heinous and requires to be condemned but at the
same time it cannot be said that it is the rarest of the rare
case where the accused requires to be eliminated from the
society. Hence, there is no justifiable reason to impose the death
sentence.” (Emphasis supplied by us).
39(2001) 9 SCC 615
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68. In Amit v. State of Maharashtra40 this Court adverted to the
prior history of the appellant and noted that there is no record of any
previous heinous crime and also there is no evidence that he would be a
danger to society if the death penalty is not awarded to him. It was held
in paragraph 10 of the Report:
“10. The next question is of the sentence. Considering that the
appellant is a young man, at the time of the incident his age was
about 20 years; he was a student; there is no record of any
previous heinous crime and also there is no evidence that
he will be a danger to the society, if the death penalty is not
awarded. Though the offence committed by the appellant deserves
severe condemnation and is a most heinous crime, but on cumulative
facts and circumstances of the case, we do not think that the
case falls in the category of rarest of the rare cases…….”
(Emphasis supplied by us).
69. In the case of Rahul v. State of Maharashtra41 this Court
noted that there was no adverse report about the conduct of the appellant
therein either by the jail authorities or by the probationary officer and
that he had no previous criminal record or at least nothing was brought
to the notice of the Court. It was observed in paragraph 4 of the Report
as follows:
“4. We have considered all the relevant aspects of the case. It is
true that the appellant committed a serious crime in a very ghastly
manner but the fact that he was aged 24 years at the time of the
crime,
has to be taken note of. Even though, the appellant had
been in custody since 27-11-1999 we are not furnished with any
report regarding the appellant either by any probationary officer
or by the jail authorities. The appellant had no previous criminal
record, and nothing was brought to the notice of the Court.
It cannot be said that he would be a menace to the society in
future. Considering the age of the appellant and other
circumstances, we do not think that the penalty of death be
imposed on him.” (Emphasis supplied by us).
40(2003) 8 SCC 93
41(2005) 10 SCC 322
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70. Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat42
the absence of any involvement in any previous criminal case was
considered to be a factor to be taken into consideration for the purposes
of awarding the sentence to the appellant therein. It was held in paragraph
13 of the Report as follows:
“13. The next question that arises for consideration is whether
this is a “rarest of rare case”; we do not think that this is a “rarest
of rare case” in which death penalty should be imposed on the
appellant. 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 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. We confirm
conviction of the appellant on all the counts, but the sentence of
death penalty imposed on him for the offence under Section 302
IPC is commuted to life imprisonment.” (Emphasis supplied by
us).
71. The importance and significance of a conviction as against a
pending trial was the subject matter of discussion in the Supreme Court
of Canada. In Her Majesty The Queen v. Norman Skolnick43 Coke’s
Institutes was partially
“modified” to the effect that a person cannot be
sentenced for the third offence before he has been convicted of the
second offence; nor can that person be sentenced for the second offence
before he has been convicted for the first offence. The second offence
must be committed after the first conviction and the third offence must
be committed after the second conviction. The principle appears to be
that the accused does not face the jeopardy of an increased penalty
unless he has previously been convicted and sentenced.
72. Similarly, the Supreme Court of the Northern Territory of
Australia in Scott Nathan Schluter v. Robin Laurence Trenerry44 took
the view that escalating the period of actual imprisonment could be justified
42(2005) 3 SCC 127
43[1982] 2 SCR 47
44(1997) 6 NTLR 194
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if there is a second finding of guilt. If that second finding of guilt is
missing then there “would be no opportunity for the multiple offender,
not previously charged, to become aware of the certainty of the severity
of punishment for the proscribed criminal behaviour.”
73. It is therefore quite clear from the various decisions placed
before us that the mere pendency of one or more criminal cases against
a convict cannot be a factor for consideration while awarding a sentence.
Not only is it statutorily impermissible (except in some cases) but even
otherwise it violates the fundamental presumption of innocence – a
human right - that everyone is entitled to.
74. Insofar as the present case is concerned, it has come on record
that there are two cases pending against the appellant for similar offences.
Both these were pending trial. Notwithstanding this, the Trial Judge took
this into account as a circumstance against the appellant.  It would have
been, in our opinion, far more appropriate for the Sessions Judge to have
waited, if he thought it necessary to take the pendency of these cases
into consideration, for the trials to be concluded.  For ought we know,
the two cases might have been foisted upon the appellant and he might
have otherwise been proved not guilty.
75. We may generally mention, in conclusion, that there is really
no reason for the Trial Judge to be in haste in awarding a sentence in a
case where he might be considering death penalty on
the ground that
any other alternative option is unquestionably foreclosed.  The convict
would in any case remain in custody for a fairly long time since the
minimum punishment awarded would be imprisonment for life.  Therefore,
a Trial Judge can take his time and sentence the convict after giving
adequate opportunity for the prosecution as well as for the defence to
produce material as postulated in Bachan Singh so that the possibility
of awarding life sentence is open to the Trial Judge as against the death
sentence. It must be appreciated that a sentence of death should be
awarded only in the rarest of rare cases, only if an alternative option is
unquestionably foreclosed and only after full consideration of all factors
keeping in mind that a sentence of death is irrevocable and irretrievable
upon execution. It should always be remembered that while the crime is
important, the criminal is equally important insofar as the sentencing
process is concerned. In other words, courts must “make assurance
double sure”.45
45Shakespeare’s Macbeth, Act IV, Scene i
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76. We may note here, by way of a post script that during the
course of submissions, it was stated by learned counsel for the appellant
that in the meanwhile the appellant had been convicted in one of the
pending cases, that is, State of Maharashtra v. Raju @ Rajendra
judgement Wasnik (S.T. No. 162 of 2007). This case was decided by
the Sessions Judge, Amravati, Maharashtra on 18th April, 2016. The
Trial Judge imposed a sentence of imprisonment for life on the appellant
upon his conviction, while taking note that in the present case, the appellant
had been awarded the death sentence.
77.  A perusal of the website of the eCourts Project of the
eCommittee of the Supreme Court revealed that in fact there were a
total of four cases against the appellant, including the one that we are
dealing with. In paragraph 38 of the decision rendered by the Sessions
Judge in S.T. No. 162 of 2007 it was recorded as follows:
“[38] The victim of this crime was aged about 9 to 10 years old
and prosecution proved that the accused committed rape on her.
It appears from the facts and circumstances and record that in
Crime No.23/2007 of police station Kholapurigate, Amravati
(S.T.No.183/2007) the accused was convicted and sentenced to
death for the offence punishable under sections 302, 376(2)(f)
and 377 of Indian Penal Code. He is also convicted in Crime
No.31/2007 of police station Daryapur (S.T.No.112/2007)
and he
is sentenced to suffer imprisonment for life for the offence
punishable under section 376(2)(f) of Indian Penal Code. He is
also convicted in Crime No.21/2006 of police station Chikhaldara,
District Amravati (S.T.No.66/2007) and he is sentenced to suffer
imprisonment for life for the offence punishable under sections
363, 366, 376(2)(f), 302 and 201 of Indian Penal Code. The death
sentence in S.T.No.183/2007 is confirmed up to the Hon’ble
Supreme Court of India and it appears that the Mercy Petition
filed by the accused also came to be rejected by the Hon’ble
President of India. The accused committed the offence of same
nature i.e. rape on minor and innocent girl. It is his 4th offence of
same nature in which the offence under sections 363, 366 and
376(2)(f) of Indian Penal Code is proved against the accused. It
appears that the accused is in habit to commit rape on minor girl.
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625
Taking in to consideration the gravity of offence and the facts and
circumstances, I am of the opinion that the accused is not deserved
for leniency and according to me, the following punishment would
meet the ends of justice…….”
We have not been informed whether the conviction orders passed
against the appellant have been set aside or not. We are therefore
proceeding on the basis that the appellant has been awarded a sentence
of death in the present case and a sentence of imprisonment for life in
the three other cases decided against him, subject to any order passed
by the appellate court.
78. We must however express our shock and anguish that the
appellant had the opportunity to commit the offences alleged against him
on more than one occasion. This could have been possible only if the
appellant had been on bail and our shock and anguish is that in the
background of the facts before us, the appellant was actually granted
bail.
Conclusion
79. Insofar as the present petition is concerned, we are of opinion
that for the purposes of sentencing, the Sessions Judge, the High Court
as well as this Court did not take into consideration the probability of
reformation, rehabilitation and social re-integration of the appellant into
society. Indeed, no material or evidence was placed before the courts to
arrive at any conclusion in this regard one way or the other and for
whatever it is worth on the facts of this case.  The prosecution was
remiss in not producing
the available DNA evidence and the failure to
produce material evidence must lead to an adverse presumption against
the prosecution and in favour of the appellant for the purposes of
sentencing.  The Trial Court was also in error in taking into consideration,
for the purposes of sentencing, the pendency of two similar cases against
the appellant which it could not, in law, consider. However, we also
cannot overlook subsequent developments with regard to the two (actually
three) similar cases against the appellant.
80. For all these reasons, we are of opinion that it would be more
appropriate looking to the crimes committed by the appellant and the
RAJENDRA PRALHADRAO WASNIK v. STATE OF
MAHARASHTRA [MADAN B. LOKUR, J.]

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626                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
material on record including his overall personality and subsequent events,
to commute the sentence of death awarded to the appellant but direct
that he should not be released from custody for the rest of his normal
life. We order accordingly.
81. The petitions stand disposed of accordingly.
Divya Pandey
Review petitions disposed of.