CHHANNU LAL VERMA versus THE STATE OF CHHATTISGARH
[2018] 14 S.C.R. 355, Supreme Court of India, 2018
Outcome: Case Partly allowed (Granted)
Segment: Facts
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CHHANNU LAL VERMA
v.
THE STATE OF CHHATTISGARH
(Criminal Appeal  Nos. 1482-1483 of 2018)
NOVEMBER 28, 2018
[KURIAN JOSEPH, DEEPAK GUPTA AND
HEMANT GUPTA, JJ.]
Administration of Criminal Justice – Capital punishment –
Commutation of – Appellant allegedly murdered three persons and
caused grievous injuries to others – Sessions Court convicted the
appellant u/ss. 302, 307, 506 (2)  and 450, IPC – High Court
confirmed the conviction and death sentence – On appeal, held:
High Court erroneously confirmed the death penalty – No evidence
as to the uncommon nature of the offence or the improbability of
reformation or rehabilitation of the appellant was adduced – Death
penalty is to be awarded only in the rarest of rare cases where life
imprisonment is wholly inadequate or futile owing to the nature of
the crime and the circumstances relating to the criminal – Whether
not granting death penalty would send a wrong message to society
are additional factors to be looked at – No such analysis was
undertaken by the High Court – High Court also failed to look at
the aggravating and mitigating circumstances – Conduct of the
convict in prison cannot be lost sight of – The fact that the prisoner
displayed good behaviour in prison certainly goes on to show that
he is not beyond reform – Decision to impose the highest punishment
of death sentence in the present case does not fulfil the test of “rarest
of rare case where the alternative option is unquestionably
foreclosed” –
Imposition of death sentence was not the only option
and hence the same is commuted to imprisonment for life – Penal
Code, 1860 – ss. 302, 307, 506 (2)  and 450 .
Administration of Criminal Justice – Capital Punishment –
Constitutional regulation of – Held: (Per Kurian Joseph, J.) Time
has come to view the need for death penalty as a punishment,
especially its purpose and practice – Per Deepak Gupta, J. (for
himself and Hemant Gupta, J.)(Partly Dissenting) Since the
[2018] 14 S.C.R. 355
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Constitution Bench of the Supreme Court in Bachan Singh case has
upheld capital punishment, there is no need to re-examine the same
at this stage.
Partly allowing the appeals, the Court
HELD: 1.1  The High Court has erroneously confirmed
death penalty without correctly applying the law laid down in the
cases of Bachan Singh,  Machhi Singh , Santosh Bariyar and
Shankar Kisanrao Khade. The decision to impose the highest
punishment of death sentence in this case does not fulfil the test
of “rarest of rare case where the alternative option is
unquestionably foreclosed”. No evidence as to the uncommon
nature of the offence or the improbability of reformation or
rehabilitation of the appellant was adduced. 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.  Whether the person would be a threat to society or
whether not granting death penalty would send a wrong message
to society are additional factors to be looked at. No such analysis
was undertaken by the High Court. The High Court has also
failed to look at the aggravating and mitigating circumstances
regarding the criminal as warranted by Bachan Singh. The
fact
that the appellant had no previous criminal record apart from the
acquittal in the Section 376, IPC, which was a false implication
and the alleged motive did not weigh with the High Court as an
important mitigating circumstance with respect to the criminal.
[Para 13][368-E-H; 369-A-B]
1.2 The superintendent of the jail has given a certificate
that his conduct in jail has been good. Thus, there is a clear
indication that despite having lost all hope, yet no frustration has
set on the appellant. On the contrary, there was a conscious effort
on his part to lead a good life for the remaining period. A convict
is sent to jail with the hope and expectation that he would make
amends and get reformed. That there is such a positive change
on a death row convict should also weigh with the Court while
taking a decision as to whether the alternative option is
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unquestionably foreclosed.  It was the duty of the State to prove
by evidence that the convict cannot be reformed or rehabilitated.
That information not having been furnished by the State at the
relevant time, the information now furnished by the State becomes
all the more relevant. The standard set by the ‘rarest of rare’
test in Bachan Singh is a high standard. The conduct of the convict
in prison cannot be lost sight of. The fact that the prisoner has
displayed good behaviour in prison certainly goes on to show
that he is not beyond reform. [Para 15][369-G-H; 370-A-B]
1.3 In the matter of probability and possibility of reform of
a criminal, a proper psychological/psychiatric evaluation was not
done. Without the assistance of such a psychological/psychiatric
assessment and evaluation it would not be proper to hold that
there is no possibility or probability of reform. The State has to
bear in mind this important aspect while proving by evidence
that the convict cannot be reformed or rehabilitated. Another
aspect that has been overlooked by the High Court is the
procedural impropriety of not having a separate hearing for
sentencing at the stage of trial. A bifurcated hearing for
conviction and sentencing was a necessary condition. By
conducting the hearing for sentencing on the same day, the
Trial court has failed to provide necessary time to the appellant
to furnish evidence relevant to sentencing and mitigation.
[Para 16, 17][370-C-E]
1.4 For the
abovementioned reasons, the imposition
of death sentence was not the only option and hence the
same needs to be commuted to imprisonment for life.
[Para 18][370-E-F]
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 ;
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413 ; Shankar Kisanrao Khade v. State
of Maharashtra (2013) 5 SCC 546 : [2013] 6 SCR
949 – relied on.
CHHANNU LAL VERMA v. THE STATE OF CHHATTISGARH
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Sonu Sardar v. State of Chhattisgarh (2012) 4 SCC 97
: [2012] 3 SCR 558 ; Sangeet v. State of Haryana (2013)
2 SCC 452 : [2012] 13 SCR 85 – referred to.
Case Law Reference
(1980) 2 SCC 684
followed
Para 6
[2009] 9 SCR 90
relied on
Para 6
[2012] 3 SCR 558
referred to
Para 7
[1983] 3 SCR 413
relied on
Para 10
[2013] 6 SCR 949
relied on
Para 12
[2012] 13SCR 85
referred to
Para 20
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1482-1483 of 2018.
From the Judgment and Order dated 11.04.2014 of the High Court
of Chhattisgarh at Bilaspur in Criminal Reference Nos. 06 of 2013 and
712 of 2013.
Colin Gonsalves, Sr. Adv., Ms. Ninni Susan Thomas, Shreeji,
Radha Shyam Jena, Satya Mitra,, Advs. for the Appellant.
Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, Advs. for the
Respondent.
The Judgment of the Court was delivered by
KURIAN, J. 1. Leave granted.
2. These appeals are filed against the order of the High Court of
Chhattisgarh dated 11.04.2014 confirming the death sentence awarded
to the appellant by the Sessions Judge, Durg vide its judgment in Sessions
Trial No. 288/2011 dated 25.06.2013. The appellant has challenged both
the conviction and the sentence.
3. The brief facts in the present case are as follows. On 19.10.2011,
it is alleged that the appellant entered the house of Anandram Sahu,
Firanteen Bai (wife of Anandram Sahu) and Smt. Ratna Sahu (daughter-
in-law of Anandram). The
appellant caused fatal injuries to Anandram,
Ratna Sahu and Firanteen Bai with a knife. Thereafter, the appellant
entered the house of Durga Banchhor with a blood-stained knife and
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assaulted Meera Banchhor and inflicted grievous injuries. When Durga
Banchhor tried to intervene, she was pushed away by the appellant who
then fled from the spot.
4. The Sessions Court convicted the appellant for murder under
Section 302 of the IPC, attempt to murder under Section 307 IPC,
threatening to kill under Section 506 (2) IPC and house trespass under
Section 450 IPC and sentenced him to undergo life imprisonment, imposed
fines and awarded him death sentence.  The Court took the view that
this is a case of the rarest of the rare category. The way the appellant
also picked and chose the people indicated that the act was pre-meditated.
And since the appellant exhibited cruelty in the process, the Court held it
as a case under the rarest of the rare cases category and the appellant
was awarded death sentence.
 5. The High Court while confirming the conviction and death
sentence, relied upon the testimony of PW-15 Sonu who is a child witness,
PW-11 Durga Bai, PW-8 Basanta, PW-9 Sukhdev Yadav and PW-10
Jailal Dhankar, apart from post-mortem reports. The aggravating and
mitigating circumstances were also considered. While balancing the
aggravating and mitigating circumstances, the following have been viewed
as aggravating circumstances:
i.
That the appellant has committed murder of three persons.
ii.
That the appellant knew what he was doing and the
consequences thereof and yet he committed the offence.
iii. That the murder of Ratna Bai was committed
as he was
previously charged of rape with the deceased Ratna and
detained in jail for a year although he was later acquitted.
iv. Apart from committing murder of three persons, he has also
caused grievous injuries to three persons.
v.
That two of the deceased and one of the injured persons were
women.
The only mitigating circumstance that the Court took note of was
the fact that the appellant had been previously accused of committing
rape and was detained in jail for one year only to be acquitted later.
Another factor that the High Court placed reliance on was that the
appellant either feigned ignorance to or denied the questions put to him
by the Trial Judge. The Court thus drew the inference that he did not
CHHANNU LAL VERMA v. THE STATE OF CHHATTISGARH
[KURIAN, J. ]
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make a case that the offence was committed by him in an emotional or
highly disturbed state of mind owing to false implication in the rape case.
The Court held that “the appellant did not mitigate the circumstance for
not imposing the death sentence.” In conclusion, the High Court held
that the aggravating circumstances outweighed the mitigating
circumstances and the case thus fell within the ambit of rarest of the
rare case which calls for the imposition of death penalty.  Having regard
to the strong evidence on record, Mr. Colin Gonsalves, learned senior
counsel for the appellant finally, and according to us rightly, submitted
that at least the sentence may be commuted to life.
6. The learned senior counsel has pointed out that the hearing for
conviction and sentencing was done on the same day in violation of the
guidelines laid down in Bachan Singh v. State of Punjab1 and that the
appellant should have been given ample time to adduce evidence in
mitigation and thereafter to be heard on the question of sentence. Reliance
has also been placed on Santosh Kumar Satishbhushan Bariyar v.
State of Maharashtra2 wherein the Court held that under Sections 235(2)
and 354(3) of the Code of Criminal Procedure, 1973 there is a mandate
for a full-fledged and bifurcated hearing and recording of “special reasons”
if the court is inclined to award death sentence. The Trial Court has
solely looked at
the brutality of the crime to impose death penalty whereas
Bachan Singh (supra) and Santosh Bariyar (supra) unambiguously
have held that aggravating and mitigating circumstances with regard to
both the crime and the criminal need to be collected before imposing
death penalty. Another contention raised by the appellant is that the High
Court has erred in holding that the appellant did not mitigate the
circumstance for not imposing death penalty when the onus to elicit
information necessary for the purpose of sentencing is on the court as
held in Bachan Singh (supra). It is also argued that the High Court has
overlooked the condition laid down in Bachan Singh (supra) that the
State has to prove that the accused does not demonstrate any probability
of reformation or rehabilitation. On the above-mentioned grounds, the
counsel for the appellant prays that the death sentence imposed be
commuted to imprisonment for life.
7. According to the counsel for the respondent State, the mens
rea of the appellant was of high degree and intensity and that the Courts
were right in imposing death penalty. It has also been pointed out that
1(1980) 2 SCC 684
2(2009) 6 SCC 498
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the appellant had a previous criminal background with the same family
in a Section 376 IPC case and thus it is a case where he has failed to
reform himself. The respondent has also advanced arguments based on
the testimony of the child witness, placing reliance on Sonu Sardar v.
State of Chhattisgarh3. The blows delivered by the appellant were
intended to commit murder as all the injuries were severe and inflicted
on vital parts. The counsel also pointed out that the appellant had previous
enmity with the family and the murder was carried out in cold blood and
in a premeditated manner, without any provocation from the victims.
The appellant has not attempted to establish that the act was committed
by him due to emotional instability caused by the false implication in a
rape case with one of the deceased. In short, the appellant has not
mitigated the circumstances for avoiding death sentence.
8. In Bachan Singh (supra) while upholding the constitutional
validity of death penalty in India, it was held that under Section 354(3) of
the CrPC, imprisonment for life is the rule and death sentence is the
exception. The Court emphasized the need for principled sentencing
without completely trammeling the discretionary powers of the judges.
It also held that the “special reasons” that are required to be recorded
while awarding death sentence means “exceptional reasons” founded
on the exceptionally grave circumstances of the particular case relating
to the crime as
well as the criminal. Some of the aggravating and
mitigating circumstances indicated in Bachan Singh (supra) are: -
Aggravating circumstances: A court may, however, in the
following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning
and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c)
if the murder is of a member of any of the armed forces of
the Union or of a member of any police force or of any
public servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done
by such member or public servant in the lawful discharge of
his duty as such member or public servant whether at the
3(2012) 4 SCC 97
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time of murder he was such member or public servant, as
the case may be, or had ceased to be such member or public
servant; or
(d) if the murder is of a person who had acted in the lawful
discharge of his duty under Section 43 of the Code of Criminal Procedure,
1973, or who had rendered assistance to a Magistrate or a police officer
demanding his aid or requiring his assistance under Section 37 and Section
129 of the said Code.”
Mitigating circumstances: In the exercise of its discretion in
the above cases, the court shall take into account the following
circumstances:
(1) That the offence was committed under the influence of extreme
mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(3) The probability that the accused would not commit criminal
acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the accused does
not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused
believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of
another person.
(7) That the condition of the accused showed that he was mentally
defective and that the said defect impaired his capacity to
appreciate
the criminality of his conduct.
9. The Court also clarified that while determining the punishment,
due regard must be given to the crime as well as the criminal. The
aggravating and mitigating circumstances would have to be viewed from
the perspective of both the crime and the criminal. The relevant discussion
reads thus:
“201. …As we read Sections 354(3) and 235(2) and other related
provisions of the Code of 1973, it is quite clear to us that for
making the choice of punishment or for ascertaining the existence
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or absence of “special reasons” in that context, the court must
pay due regard both to the crime and the criminal. What is the
relative weight to be given to the aggravating and mitigating factors,
depends on the facts and circumstances of the particular case.
More often than not, these two aspects are so intertwined that it
is difficult to give a separate treatment to each of them. This is so
because “style is the man”. In many cases, the extremely cruel or
beastly manner of the commission of murder is itself a
demonstrated index of the depraved character of the perpetrator.
That is why, it is not desirable to consider the circumstances of
the crime and the circumstances of the criminal in two separate
watertight compartments. In a sense, to kill is to be cruel and
therefore all murders are cruel. But such cruelty may vary in its
degree of culpability. And it is only when the culpability assumes
the proportion of extreme depravity that “special reasons” can
legitimately be said to exist.”
                                                             (Emphasis supplied)
However, the Court has emphasised that the list of aggravating
and mitigating circumstances provided above are not exhaustive and the
scope of mitigating factors in death penalty must receive a liberal and
expansive construction by the courts. Paragraph 209 reads as follows:
“209. There are numerous other circumstances justifying the
passing of the lighter sentence; as there are
countervailing
circumstances of aggravation. “We cannot obviously feed into a
judicial computer all such situations since they are astrological
imponderables in an imperfect and undulating society.”
Nonetheless, it cannot be over-emphasised that the scope and
concept of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts in accord
with the sentencing policy writ large in Section 354(3). Judges
should never be bloodthirsty. Hanging of murderers has never
been too good for them. Facts and Figures, albeit incomplete,
furnished by the Union of India, show that in the past, courts have
inflicted the extreme penalty with extreme infrequency — a fact
which attests to the caution and compassion which they have
always brought to bear on the exercise of their sentencing
discretion in so grave a matter. It is, therefore, imperative to voice
the concern that courts, aided by the broad illustrative guide-lines
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indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad
of legislative policy outlined in Section 354(3) viz. that for persons
convicted of murder, life imprisonment is the rule and death
sentence an exception. A real and abiding concern for the dignity
of human life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest
of rare cases when the alternative option is unquestionably
foreclosed.”
(Emphasis supplied)
10. In Machhi Singh v. State of Punjab4 the Court summarised
the findings in Bachan Singh (supra) and held as follows:
“38. In this background the guidelines indicated in Bachan Singh
case will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence
arises. The following propositions emerge from Bachan Singh
case:
(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of
the ‘offender’ also require to be taken into consideration along
with the circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed
only when life imprisonment appears to be an altogether
inadequate punishment having regard
to the relevant
circumstances of the crime, and provided, and only provided,
the option to impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
4(1983) 3 SCC 470
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39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls
for a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?
40. If upon taking an overall global view of all the circumstances
in the light of the aforesaid proposition and taking into account the
answers to the questions posed hereinabove, the circumstances
of the case are such that death sentence is warranted, the court
would proceed to do so.”
(Emphasis supplied)
11. It is evident that the Court in Bachan Singh (supra) has set a
very high threshold of “rarest of rare cases when the alternative option
is unquestionably foreclosed” for the grant of death penalty. The meaning
and ambit of this expression has been discussed in Santosh Bariyar
(supra). The Court also emphasised the need for a bifurcated hearing
for the purpose of conviction and sentencing. The relevant portion reads:
“56. At this stage, Bachan Singh informs the content of the
sentencing hearing. The court must play a proactive role to record
all relevant information at this stage. Some of the information
relating to crime can be culled out from the phase prior to
sentencing hearing. This information would
include aspects relating
to the nature, motive and impact of crime, culpability of convict,
etc. Quality of evidence adduced is also a relevant factor. For
instance, extent of reliance on circumstantial evidence or child
witness plays an important role in the sentencing analysis. But
what is sorely lacking, in most capital sentencing cases, is
information relating to characteristics and socio-economic
background of the offender. This issue was also raised in the 48th
Report of the Law Commission.
57. Circumstances which may not have been pertinent in
conviction can also play an important role in the selection of
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sentence. Objective analysis of the probability that the accused
can be reformed and rehabilitated can be one such illustration. In
this context, Guideline 4 in the list of mitigating circumstances as
borne out by Bachan Singh is relevant. The Court held: (SCC p.
750, para 206)
“206. (4) The probability that the accused can be reformed
and rehabilitated.
The State shall by evidence prove that the accused does not
satisfy Conditions (3) and (4) above.”
In fine, Bachan Singh mandated identification of aggravating and
mitigating circumstance relating to crime and the convict to be
collected in the sentencing hearing.
58. The rarest of rare dictum breathes life in “special reasons”
under Section 354(3). In this context, Bachan Singh laid down a
fundamental threshold in the following terms: (SCC p. 751, para
209)
“209. … A real and abiding concern for the dignity of human
life postulates resistance to taking a life through law’s
instrumentality. That ought not to be done save in the rarest
of rare cases when the alternative option is unquestionably
foreclosed.”
                                               (emphasis supplied)
An analytical reading of this formulation would reveal it to be an
authoritative negative precept. The “rarest of rare cases” is an
exceptionally narrow opening provided in the domain of this
negative precept. This opening is also qualified by another condition
in the
form of “when the alternative option is unquestionably
foreclosed”.
59. Thus, in essence, the rarest of rare dictum imposes a wide-
ranging embargo on award of death punishment, which can only
be revoked if the facts of the case successfully satisfy double
qualification enumerated below:
1. that the case belongs to the rarest of rare category,
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2. and the alternative option of life imprisonment will just not
suffice in the facts of the case.
60. The rarest of rare dictum serves as a guideline in enforcing
Section 354(3) and entrenches the policy that life imprisonment is
the rule and death punishment is an exception. It is a settled law
of interpretation that exceptions are to be construed narrowly.
That being the case, the rarest of rare dictum places an
extraordinary burden on the court, in case it selects death
punishment as the favoured penalty, to carry out an objective
assessment of facts to satisfy the exceptions ingrained in the rarest
of rare dictum.
61. The background analysis leading to the conclusion that the
case belongs to the rarest of rare category must conform to
highest standards of judicial rigor and thoroughness as the norm
under analysis is an exceptionally narrow exception. A conclusion
as to the rarest of rare aspect with respect to a matter shall entail
identification of aggravating and mitigating circumstances relating
both to the crime and the criminal. It was in this context noted:
(Bachan Singh case, SCC p. 738, para 161
“161. … The expression ‘special reasons’ in the context of
this provision, obviously means ‘exceptional reasons’ founded
on the exceptionally grave circumstances of the particular
case relating to the crime as well as the criminal.””
                                      (Emphasis supplied)
12. In Shankar Kisanrao Khade v. State of Maharashtra5 this
Court looked at the manner in which the aggravating and mitigating
circumstances are to be weighed and how the rarest of rare test is to be
applied while awarding death sentence and held thus:
“52. Aggravating circumstances as pointed out above, of course,
are not exhaustive so also the mitigating circumstances. In my
considered view, the tests that we have to apply, while awarding
death sentence are “crime test”, “criminal test” and the “R-R
test” and not the “balancing test”. To award death sentence, the
“crime test” has to be fully satisfied, that is, 100% and “criminal
test” 0%, that is, no mitigating circumstance favouring the accused.
If there is any circumstance favouring the accused, like lack of
5(2013) 5 SCC 546
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intention to commit the crime, possibility of reformation, young
age of the accused, not a menace to the society, no previous track
record, etc. the “criminal test” may favour the accused to avoid
the capital punishment. Even if both the tests are satisfied, that is,
the aggravating circumstances to the fullest extent and no mitigating
circumstances favouring the accused, still we have to apply finally
the rarest of the rare case test (R-R test). R-R test depends upon
the perception of the society that is “society-centric” and not
“Judge-centric”, that is, whether the society will approve the
awarding of death sentence to certain types of crimes or not.
While applying that test, the court has to look into variety of factors
like society’s abhorrence, extreme indignation and antipathy to
certain types of crimes like sexual assault and murder of
intellectually challenged minor girls, suffering from physical
disability, old and infirm women with those disabilities, etc.
Examples are only illustrative and not exhaustive. The courts award
death sentence since situation demands so, due to constitutional
compulsion, reflected by the will of the people and not the will of
the Judges.”
(Emphasis supplied)
13. In our opinion, the High Court has erroneously confirmed death
penalty without correctly applying the law laid down in Bachan Singh
(supra), Machhi Singh (supra), Santosh Bariyar (supra) and
Shankar
Kisanrao Khade (supra). The decision to impose the highest punishment
of death sentence in this case does not fulfil the test of “rarest of rare
case where the alternative option is unquestionably foreclosed”. The
questions laid down in paragraph 39 of Machhi Singh (supra) have not
been answered in the particular case. 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. As laid
down in Shankar Kisanrao Khade (supra), whether the person would
be a threat to society or whether not granting death penalty would send
a wrong message to society are additional factors to be looked at. No
such analysis was undertaken by the High Court. The High Court has
also failed to look at the aggravating and mitigating circumstances
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regarding the criminal as warranted by Bachan Singh (supra). The fact
that the appellant had no previous criminal record apart from the acquittal
in the Section 376, IPC, which was a false implication and the alleged
motive did not weigh with the High Court as an important mitigating
circumstance with respect to the criminal.
14. In the past four decades or so, this Court has been consistently
echoing its concern on the constitutional ethos on value and dignity of
life, when it said in Bachan Singh (supra) that ‘extreme depravity’
(paragraph 201), ‘it is the duty of the State to adduce evidence that there
is no probability that the accused can be reformed’ (paragraph 206),
‘liberal and expansive connotation’ (paragraph 209), ‘alternative option
is unquestionably foreclosed’ (paragraph 209) ‘humane concern’
(paragraph 209), ‘real and abiding concern for dignity of human life’
(paragraph 209), in Machhi Singh (supra) that ‘gravest case of extreme
culpability’ (paragraph 38), ‘only when life appears to be an altogether
inadequate punishment’ (paragraph 28), ‘mitigating circumstances should
be given full weightage’ (paragraph 38), in Santosh Bariyar (supra)
that ‘probability that the accused can be reformed and rehabilitated’
(paragraph 57), ‘the rarest of rare case is a negative precept’ (paragraph
58), ‘death is an exceptionally narrow opening’ (paragraph 58),
‘extraordinary burden on the Court to impose death’ (paragraph 60),
‘maximum weightage to
mitigating circumstances and yet no alternative
except death’ (paragraph 39), ‘highest standards of judicial rigor and
thoroughness’ (paragraph 61), and in Shankar Kisanrao Khade (supra)
that ‘possibility of reformation, young age of the accused, not a menace
to the society, no previous track record’ (paragraph 52) etc. These factors
have not received due consideration by either the High Court or the Trial
Court.
15. The appeal has been pending before this Court for the past
four years. Since the appellant has been in jail, we wanted to know
whether there was any attempt on his part for reformation. The
superintendent of the jail has given a certificate that his conduct in jail
has been good. Thus, there is a clear indication that despite having lost
all hope, yet no frustration has set on the appellant. On the contrary,
there was a conscious effort on his part to lead a good life for the remaining
period. A convict is sent to jail with the hope and expectation that he
would make amends and get reformed. That there is such a positive
change on a death row convict, in our view, should also weigh with the
Court while taking a decision as to whether the alternative option is
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unquestionably foreclosed. As held by the Constitution Bench in Bachan
Singh (supra) it was the duty of the State to prove by evidence that the
convict cannot be reformed or rehabilitated. That information not having
been furnished by the State at the relevant time, the information now
furnished by the State becomes all the more relevant. The standard set
by the ‘rarest of rare’ test in Bachan Singh (supra) is a high standard.
The conduct of the convict in prison cannot be lost sight of. The fact that
the prisoner has displayed good behaviour in prison certainly goes on to
show that he is not beyond reform.
16. In the matter of probability and possibility of reform of a
criminal, we do not find that a proper psychological/psychiatric evaluation
is done. Without the assistance of such a psychological/psychiatric
assessment and evaluation it would not be proper to hold that there is no
possibility or probability of reform. The State has to bear in mind this
important aspect while proving by evidence that the convict cannot be
reformed or rehabilitated.
17. Another aspect that has been overlooked by the High Court is
the procedural impropriety of not having a separate hearing for sentencing
at the stage of trial. A bifurcated hearing for conviction and sentencing
was a necessary condition laid down in Santosh Bariyar (supra). By
conducting the hearing for sentencing on the same day, the
Trial court
has failed to provide necessary time to the appellant to furnish evidence
relevant to sentencing and mitigation.
18. For the abovementioned reasons, we hold that the imposition
of death sentence was not the only option and hence the same needs to
be commuted to imprisonment for life.
Future of death penalty in India
19. Since Bachan Singh (supra) is a Constitution Bench decision
of this Court, the Courts are bound to follow the principles laid down in
the said judgment until it is duly revisited. But we cannot altogether
ignore the fact that various Benches have, over a period of time,
expressed concern regarding the inconsistent application of the principles
laid down in Bachan Singh (supra) and have also taken forward the
application of the principles to reduce such inconsistencies. In Santosh
Bariyar (supra), the Court noted the global move away from death penalty
and observed:
“109. …it is now clear that even the balance sheet of aggravating
and mitigating circumstances approach invoked on a case-by-case
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basis has not worked sufficiently well so as to remove the vice of
arbitrariness from our capital sentencing system. It can be safely
said that the Bachan Singh threshold of “the rarest of rare cases”
has been most variedly and inconsistently applied by the various
High Courts as also this Court.
110. At this point we also wish to point out that the uncertainty in
the law of capital sentencing has special consequence as the matter
relates to death penalty—the gravest penalty arriving out of the
exercise of extraordinarily wide sentencing discretion, which is
irrevocable in nature. This extremely uneven application
of Bachan Singh has given rise to a state of uncertainty in capital
sentencing law which clearly falls foul of constitutional due process
and equality principle. The situation is unviable as legal discretion
which is conferred on the executive or the judiciary is only
sustainable in law if there is any indication, either through law or
precedent, as to the scope of the discretion and the manner of its
exercise. There should also be sufficient clarity having regard to
the legitimate aim of the measure in question. The Constitution of
India provides for safeguards to give the individual adequate
protection against arbitrary imposition of criminal punishment.”
20. In Sangeet v. State of Haryana6 the Court notes that
“30. The application of the sentencing policy through aggravating
and mitigating circumstances came up for consideration in Swamy
Shraddananda (2) v. State of Karnataka. On a review, it was
concluded in para 48 of the Report that there is a lack of evenness
in the sentencing process. The rarest of rare principle has not
been followed uniformly or consistently. Reference in this context
was made to Aloke Nath Dutta v. State of W.B. which in turn
referred to several earlier decisions to bring home the point.
31. The critique in Swamy Shraddananda was mentioned (with
approval) in Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra while sharing this Court’s “unease and sense of
disquiet” in paras 109, 129 and 130 of the Report. In fact, in para
109 of the Report, it was observed that: (Bariyar case)
 “109. … the balance sheet of aggravating and mitigating
circumstances approach invoked on a case-by-case basis has
not worked sufficiently well so as to remove the vice of
6(2013) 2 SCC 452
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arbitrariness from our capital sentencing system. It can be
safely said that the Bachan Singh threshold of ‘the rarest of
rare cases’ has been most variedly and inconsistently applied
by the various High Courts as also this Court.”
32. It does appear that in view of the inherent multitude of
possibilities, the aggravating and mitigating circumstances approach
has not been effectively implemented.
33. Therefore, in our respectful opinion, not only does the
aggravating and mitigating circumstances approach need a fresh
look but the necessity of adopting this approach also needs a fresh
look in light of the conclusions in Bachan Singh. It appears to us
that even though Bachan Singh intended “principled sentencing”,
sentencing has now really become Judge-centric as highlighted
in Swamy Shraddananda and Bariyar. This aspect of the
sentencing policy in Phase II as introduced by the Constitution
Bench in Bachan Singh seems to have been lost in transition.”
21. In Shankar Kisanrao Khade (supra), this Court went to the
extent of requesting the Law Commission of India for resolving “… the
issue by examining whether death penalty is a deterrent punishment or
is retributive justice or serves an incapacitative goal.”
22. In this context, it may be relevant to note that the Constitution
Bench in Bachan Singh (supra) has made extensive refence to the 35th
Report of Law Commission submitted in the year
1967, which justified
the retention of death penalty. Interestingly, Report No. 262 submitted in
the year 2015 prepared and submitted based on the request made by this
Court has taken a different view, after extensive research and with
reference to the international approach. To quote from the introduction
of the Report No. 262 :-
“CHAPTER-I
INTRODUCTION
A. Reference from the Supreme Court
1.1.1. In Shankar kisanrao Khade v. State of Maharashtra
(‘Khade’) (2013) 5 SCC 546 the Supreme Court of India, while
dealing with an appeal on the issue of death sentence, expressed
its concern with the lack of a coherent and consistent purpose
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and basis for awarding death and granting clemency. The Court
specifically called for the intervention of the Law Commission of
India (‘the Commission’) on these two issues, noting that :
It seems to me that though the courts have been applying the
rarest of rare principle, the executive has taken into
consideration some factors not known to the courts for
converting a death sentence to imprisonment for life. It is
imperative, in this regard, since we are dealing with the lives
of people (both the accused and the rape-murder victim) that
the courts lay down a jurisprudential basis for awarding the
death penalty and when the alternative is unquestionably
foreclosed so that the prevailing uncertainty is avoided. Death
penalty and its execution should not become a matter of
uncertainty nor should converting a death sentence into
imprisonment for life become a matter of chance. Perhaps
the Law Commission of India can resolve the issue by
examining whether death penalty is a deterrent punishment
or is retributive justice or serves an incapacitative goal.
(Shankar Kisanrao Khade v. State of Maharashtra (2013)
5 SCC 546 -para 148 (Emphasis supplied)
It does not prima facie appear that two important organs
of the State, that is, the judiciary and the executive are
treating the life of convicts convicted of an offence
punishable with death with different standards. While the
standard applied by the judiciary is that of the rarest of
rare principle (however
subjective or Judge-centric it may
be in its application), the standard applied by the executive
in granting commutation is not known.  Therefore, it could
happen (and might well have happened) that in a given
case the Sessions Judge, the High Court and the Supreme
Court are unanimous in their view in awarding the death
penalty to a convict, any other option being unquestionably
foreclosed, but the executive has taken a diametrically
opposite opinion and has commuted the death penalty. This
may also need to be considered by the Law Commission of
India. (2013) 5 SCC 546-para 149. (Emphasis supplied)
1.1.2. Khade was not the first recent instance of the Supreme Court
referring a question concerning the death penalty to the Commission. In
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Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra
(‘Bariyar’) (2009) 6 SCC 498 lamenting the lack of empirical research
on this issue, the Court observed :
We are also aware that on 18.12.2007, the United Nations
General Assembly adopted Resolution 62/149 calling upon
countries that retain the death penalty to establish a
worldwide moratorium on executions with a view to
abolishing the death penalty. India is, however, one of the
59 nations that retain the death penalty. Credible research,
perhaps by the Law Commission of India or the National
Human Rights Commission may allow for an up-do-date
and informed discussion and debate on the subject.
(Emphasis supplied)
1.1.3. The present Report is thus largely driven by these references
of the Supreme Court and the need for re-examination of the
Commission’s own recommendations on the death penalty in the
light of changed circumstances.”
23. Chapter -VII of Report No. 262   contains   the   Conclusions
and Recommendations. To quote :-
“A. Conclusions
7.1.1 The death penalty does not serve the penological goal of
deterrence any more than life imprisonment. Further, life
imprisonment under Indian law means imprisonment for the whole
of life subject to just remissions which, in many states in cases of
serious crimes, are granted only after many years of imprisonment
which range from 30-60 years.
7.1.2 Retribution has an important role
to play in punishment.
However, it cannot be reduced to vengeance. The notion of “an
eye for an eye, tooth for a tooth” has no place in our constitutionally
mediated criminal justice system. Capital punishment fails to
achieve any constitutionally valid penological goals.
7.1.3 In focusing on death penalty as the ultimate measure of
justice to victims, the restorative and rehabilitative aspects of justice
are lost sight of. Reliance on the death penalty diverts attention
from other problems ailing the criminal justice system such as
poor investigation, crime prevention and rights of victims of crime.
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It is essential that the State establish effective victim compensation
schemes to rehabilitate victims of crime. At the same time, it is
also essential that courts use the power granted to them under the
Code of Criminal Procedure, 1973 to grant appropriate
compensation to victims in suitable cases. The voices of victims
and witnesses are often silenced by threats and other coercive
techniques employed by powerful accused persons. Hence it is
essential that a witness protection scheme also be established.
The need for police reforms for better and more effective
investigation and prosecution has also been universally felt for
some time now and measures regarding the same need to be taken
on a priority basis.
7.1.4 In the last decade, the Supreme Court has on numerous
occasions expressed concern about arbitrary sentencing in death
penalty cases. The Court has noted that it is difficult to distinguish
cases where death penalty has been imposed from those where
the alternative of life imprisonment has been applied. In the Court’s
own words “extremely uneven application of Bachan Singh has
given rise to a state of uncertainty in capital sentencing law which
clearly falls foul of constitutional due process and equality
principle”. The Court has also acknowledged erroneous imposition
of the death sentence in contravention of Bachan Singh
guidelines. Therefore, the constitutional regulation of capital
punishment attempted in Bachan Singh has failed to prevent
death
sentences from being “arbitrarily and freakishly imposed”.
7.1.5 There exists no principled method to remove such
arbitrariness from capital sentencing. A rigid, standardization or
categorization of offences which does not take into account the
difference between cases is arbitrary in that it treats different
cases on the same footing. Anything less categorical, like the
Bachan Singh framework itself, has demonstrably and admittedly
failed.
7.1.6 Numerous committee reports as well as judgments of
the Supreme Court have recognized that the administration of
criminal justice in the country is in deep crisis. Lack of resources,
outdated modes of investigation, over-stretched police force,
ineffective prosecution, and poor legal aid are some of the problems
besetting the system. Death penalty operates within this context
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and therefore suffers from the same structural and systemic
impediments. The administration of capital punishment thus
remains fallible and vulnerable to misapplication. The vagaries of
the system also operate disproportionately against the socially and
economically marginalized who may lack the resources to
effectively advocate their rights within an adversarial criminal
justice system.
7.1.7 Clemency powers usually come into play after a judicial
conviction and sentencing of an offender. In exercise of these
clemency powers, the President and Governor are empowered to
scrutinize the record of the case and differ with the judicial verdict
on the point of guilt or sentence. Even when they do not so differ,
they are empowered to exercise their clemency powers to
ameliorate hardship, correct error, or to do complete justice in a
case by taking into account factors that are outside and beyond
the judicial ken. They are also empowered to look at fresh evidence
which was not placed before the courts. (Kehar Singh v. Union
of India-(1989) 1 SCC 204 paras 7,10 & 16) Clemency powers,
while exercisable for a wide range of considerations and on protean
occasions, also function as the final safeguard against possibility
of judicial error or miscarriage of justice. This casts a heavy
responsibility on those wielding this power and necessitates a full
application of mind, scrutiny of judicial
records, and wide-ranging
inquiries in adjudicating a clemency petition, especially one from
a prisoner under a judicially confirmed death sentence who is on
the very verge of execution. Further, the Supreme Court in
Shatrughan Chauhan v. Union of India- (2014) 3 SCC1 -paras
55-56) has recorded various relevant considerations which are
gone into by the Home Ministry while deciding mercy petitions.
7.1.8 The exercise of mercy powers under Article 72 and
161 have failed in acting as the final safeguard against miscarriage
of justice in the imposition of the death sentence. The Supreme
Court has repeatedly pointed out gaps and illegalities in how the
executive confirms that retaining the death penalty is not a
requirement for effectively responding to insurgency, terror or
violent crime.
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B. Recommendation
7.2.1 The Commission recommends that measures suggested
in para 7.1.3 above, which include provisions for police reforms,
witness protection scheme and victim compensation scheme should
be taken up expeditiously by the government.
7.2.2 The march of our own jurisprudence—from removing
the requirement of giving special reasons for imposing life
imprisonment instead of death in 1955; to requiring special reasons
for imposing the death penalty in 1973; to 1980 when the death
penalty was restricted by the Supreme Court to rarest of rare
cases – shows the direction in which we have to head. Informed
also by the expanded and deepened contents and horizons of the
right to life and strengthened due process requirements in the
interactions between the state and the individual, prevailing
standards of constitutional morality and human dignity, the
Commission feels that time has come for India to move towards
abolition of the death penalty.
7.2.3 Although there is no valid penological justification for
treating terrorism differently from other crimes, concern is often
raised that abolition of death penalty for terrorism related offences
and waging war, will affect national security. However, given the
concerns raised by the law makers, the commission does not see
any reason to wait any longer to take the first step towards abolition
of the death penalty for all offences other than terrorism related
offences.
7.2.4 The Commission accordingly
recommends that the death
penalty be abolished for all crimes other than terrorism related
offences and waging war.”
                 (Emphasis supplied)
Having regard also to the said Report of the Law Commission
that the constitutional regulation of capital punishment attempted in
Bachan Singh (supra) has failed to prevent death sentences from being
“arbitrarily and freakishly imposed” and that capital punishment has failed
to achieve any constitutionally valid penological goals, we are of the
view that a time has come where we view the need for death penalty as
a punishment, especially its purpose and practice.
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24. It is also a matter of anguishing concern as to how public
discourse on crimes have an impact on the trial, conviction and sentence
in a case. The Court’s duty to be constitutionally correct even when its
view is counter-majoritarian is also a factor which should weigh with the
Court when it deals with the collective conscience of the people or public
opinion. After all, the society’s perspective is generally formed by the
emotionally charged narratives. Such narratives need not necessarily be
legally correct, properly informed or procedurally proper. As stated in
Report No. 262 of the Law Commission …….”the Court plays a counter-
majoritarian role in protecting individual rights against majoritarian
impulses. Public opinion in a given case may go against the values of
rule of law and constitutionalism by which the Court is nonetheless bound”
and as held by this Court in Santosh Bariyar (supra) public opinion or
people’s perception of a crime is …….”neither an objective circumstance
relating to crime nor to the criminal”.  In this context, we may also
express our concern on the legality and propriety of the people engaging
in a “trial” prior to the process of trial by the court. It has almost become
a trend for the investigating agency to present their version and create a
cloud in the collective conscience of the society regarding the crime and
the criminal. This undoubtedly puts
mounting pressure on the courts at
all the stages of the trial and certainly they have a tendency to interfere
with the due course of justice.
25. Till the time death penalty exists in the statute books, the burden
to be satisfied by the Judge in awarding this punishment must be high.
The irrevocable nature of the sentence and the fact that the death row
convicts are, for that period, hanging between life and death are to be
duly considered. Every death penalty case before the court deals with a
human life that enjoys certain constitutional protections and if life is to
be taken away, then the process must adhere to the strictest and highest
constitutional standards. Our conscience as judges, which is guided by
constitutional principles, cannot allow anything less than that.
26. These appeals are hence partly allowed, commuting the death
sentence to life imprisonment.
DEEPAK GUPTA, J.
1. We have had the privilege of going through the erudite judgment
delivered by our learned brother Justice Kurian Joseph.  We are in full
agreement with all that is stated in the judgment except the following
observations in Para 23:
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“Having regard also to the said Report of the Law Commission
that the constitutional regulation of capital punishment attempted
in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, has failed
to prevent death sentences from being “arbitrarily and freakishly
imposed” and that capital punishment has failed to achieve any
constitutionally valid penological goals, we are of the view that a
time has come where we view the need for death penalty as a
punishment, especially its purpose and practice”.
2. In our view, since the Constitution Bench in Bachan Singh v.
State of Punjab1, has upheld capital punishment, there is no need to
re-examine the same at this stage.
1(1980) 2 SCC 684
Divya Pandey
Appeals partly allowed.
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