M. A. ANTONY @ ANTAPPAN versus STATE OF KERALA on 12 December 2018

[2018] 13 S.C.R. 296

SUPREME COURT REPORTS

[2018] 13 S.C.R.

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M. A. ANTONY @ ANTAPPAN

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STATE OF KERALA

(Review Petition (Crl.) No. 245 of 2010)

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Criminal Appeal No. 811 of 2009

DECEMBER 12, 2018

[MADAN B. LOKUR, S. ABDUL NAZEER ANDDEEPAK GUPTA, JJ.]

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Practice and Procedure – Death sentence – Commutation of,into life sentence– Mitigating factors to be considered – Socio-Economic factors – Appellant murdered six members of one family– Sessions Court convicted the appellant – Trial Judge sentencedthe appellant “to be hanged by the neck till he is dead” – HighDCourt confirmed the death sentence – Appellant filed appeal beforeSupreme Court – Dismissed– Appellant filed Review Petition–Dismissed– Review petition re-opened– Held: Socio-economiccircumstances relating to the appellant are relevant for objectiveconsideration of the award of sentence – Socio-economic factorsmust be taken into consideration while awarding sentence,Eparticularly the ground realities relating to access to justice thatare not easily available to the poor and needy – In the present case,convict was working as driver on casual basis and was desirous ofobtaining employment in the Gulf and was making all attempts inthis direction– He managed to arrange a visa but had to pay theFagent Rs.62,000/- – Due to severe financial constraints he couldonly arrange Rs.25,000/- – He had gone to the house of the deceasedfamily for getting money– But, unfortunately he was unable to obtainany funds from them and this led to his decision to kill all of them –Socio-economic condition of the appellant was a significant factorthat ought to have been taken into consideration by the Trial CourtGand the High Court while considering the punishment to be givento the appellant – While the socio-economic condition of a convictis not a factor for disproving his guilt, it is a factor that must betaken into consideration for the purposes of awarding anappropriate sentence to a convict – Trial Court was in error whileHawarding death sentence to the appellant on the basis that he was a hardened criminal– There is no such evidence on record– Deathsentence awarded to the appellant converted into sentence ofimprisonment for life.

Disposing of the review petition, the Court HELD: 1.1 The socio-economic factors relating to a convictshould be taken into consideration for the purposes of decidingwhether to award life sentence or death sentence. Socio-economicfactors must be taken into consideration while awarding asentence particularly the ground realities relating to access tojustice and remedies to justice that are not easily available to thepoor and the needy. [Paras 15, 16][305-B; 306-C]

1.2 The consideration of socio-economic factors is tied upwith another important issue (which need not necessarily oralways be taken into consideration for sentencing purposes, butcould be relevant in a given case) and that is whether theconvict has had adequate legal representation. Quality legal aidto the disadvantaged and weaker sections of society is anarea that requires great and urgent attention. [Paras 17, 18][306-C-D, F-G]

1.3 On the facts of the present case, the convict was workingas a driver on a casual basis. He was desirous of obtainingemployment in the Gulf and was making all attempts in thisdirection. He managed to arrange a visa but had to pay the agentRs.62,000/-. Due to severe financial constraints he could onlyarrange Rs.25,000/- for making the initial payment. He continuedmaking attempts to raise the amount. His economic conditionwas so severe that for the purposes of going to Gulf he had toproceed from Ernakulam to Mumbai by train and while he couldmanage to purchase the ticket, he was unable to pay forreservation charges. Under these circumstances, he had gone tothe house of the deceased family for getting money or by stealingit or by grabbing it by any other means. But unfortunately forhim and the deceased family, he was unable to obtain any fundsfrom them and this led to his decision to kill all of them.[Para 26][310-C-E]

Public opinion or collective conscience of the society 1.4 It would be wise if impressions gathered on what isperceived to be public opinion or collective conscience of the A

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Asociety are eschewed while sentencing a convict found guilty of agrave or brutal crime. On the facts of the present case, there wasno material whatsoever to come to the conclusion that the gravityof the crime caused revulsion in the society or that it hadmaterially disturbed normal life in the society. Consequently, theview expressed by the Trial Judge in this regard must beBdisregarded for the purposes of imposing an appropriate sentenceon the appellant. [Para 27][311-C-D]

Conclusion

1.5 All the courts including this Court overlookedconsideration of the probability of reform or rehabilitation andCsocial reintegration of the appellant into society. The Trial Courtwas in error proceeding on the basis, while awarding a sentenceof death to the appellant by observing that he was a hardenedcriminal. There is no such evidence on material or on record.The socio-economic condition of the appellant was a significantDfactor that ought to have been taken into consideration by theTrial Court as well the High Court while considering thepunishment to be given to the appellant. While the socio-economiccondition of a convict is not a factor for disproving his guilt, it isa factor that must be taken into consideration for the purposes ofawarding an appropriate sentence to a convict. The deathEsentence awarded to the appellant is converted into a sentenceof imprisonment for life. [Paras 29, 30, 31 and 33][311-F-H;312-A-B, E-F]

Bachan Singh v. State of Punjab (1980) 2 SCC 684 –followed.FSurendra Pal Shivbalakpal v. State of Gujarat (2005)3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Sushil Kumarv. State of Punjab (2009) 10 SCC 434 ; Mulla v. Stateof Uttar Pradesh (2010) 3 SCC 508 : [2010] 2 SCR633 ; Kamleshwar Paswan v. Union Territory ofGChandigarh (2011) 11 SCC 564 : [2011] 1 SCR 647 ;Mahesh Dhanaji Shinde v. State of Maharashtra (2014)4 SCC 292 : [2014] 3 SCR 406 ; Santosh KumarSatishbhushan Bariyar v. State of Maharashtra (2009)6 SCC 498 – relied on.

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M. A. ANTONY @ ANTAPPAN v. STATE OF KERALA

Mohd. Arif alias Ashfaq v. The Registrar Supreme Courtof India & others (2014) 9 SCC 737 : [2014] 11 SCR1009 ; State of U.P. v. M.K. Anthony (1985) 1 SCC 505;Rajendra Pralhadrao Wasnik v. State of MaharashtraDecided on 12.12.2018 by Supreme Court in ReviewPetition (Criminal) Nos. 306-307 of 2013; Ramesh v.State of Rajasthan (2011) 3 SCC 685: [2011] 4SCR 585 – referred to Case Law Reference CRIMINAL APPELLATE JURISDICTION : Review Petition(Criminal) No. 245 of 2010 in

Criminal Appeal No. 811 of 2009.

From the Judgment and Order dated 18.09.2006 of the High Courtof Kerala at Ernakulam in Death Sentence Ref. No. 5 of 2005 andCriminal Appeal No. 385 of 2005 (C)

Sanjay Parikh, Manoj V. George, Shilpa Liza George, Ms. NinniSusan Thomas, Ashita Arora, Amit Kumar, Yash S. Vijay, Ms. SanjanaSrikumar, Rajeev Kumar Dubey, Aakarsh Kamra, Kamlendra Mishra,Advs. for the Appellant.

K. N. Balgopal, Sr. Adv., G. Prakash, Jishnu M. L., Mrs. PriyankaPrakash, Mrs. Beena Prakash, Mukundan Nitya Nambiar, Vitso Rio,Advs. for the Respondent.

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AThe Judgment of the Court was delivered by MADAN B. LOKUR, J.

1. The broad allegations against the appellant have been stated inthe decision of this Court in the criminal appeal out of which the presentReview Petition arises. It would be more convenient to reproduce theBallegations from the decision:

“On the intervening night of 6[th] and 7[th] January, 2001, when inmatesof Aluva Municipal Town of Ernakulam District in the State ofKerala were in deep sleep, Manjooran House located in the midstof the town became a scene of ghastly crime. Six members ofone family in the Manjooran House lost their lives in a matter ofthree hours, Antony @ Antappan, the appellant herein, in searchof greener pastures abroad for which purpose he needed moneybut was refused to be paid by the members of the Manjooranfamily, and therefore as per the prosecution’s version used knife,axe, and electrocuted and strangulated Kochurani and Clara atabout 10 in the night of 6.1.2001 and Augustine, his wife Mary,and their children – Divya and Jesmon at midnight. The ManjooranHouse full of life at 10 in the night by the stroke of midnight becamea graveyard. The appellant after causing the death of Kochuraniand Clara is said to have waited for the arrival of other fourmembers of the family who had gone to see a film show. On theirarrival he turned them into corpses. He waited for their arrival tokill them as he knew that for the two murders committed earlierby him he would be suspected by them, as he was in the housewhen they left the house for the film show. The prosecutionalleges that all these murders were cold blooded, planned andexecuted with precision and the appellant ensured that there is notrace of life left in them before he left the scene of occurrence.When put to trial for murders, appellant, however, pleadedinnocence and claimed trial.”

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2. After trial, the Sessions Court in Ernakulam in Kerala in SessionsGCase No.154 of 2004 found the appellant guilty of the offences andconvicted him by judgment and order dated 31[st] January, 2005. It appearsthat submissions on the question whether the appellant should be awardedlife sentence or death sentence were addressed on the same day orimmediately thereafter since on 2[nd] February, 2005 the Trial Judgesentenced the appellant “to be hanged by the neck till he is dead”.H

M. A. ANTONY @ ANTAPPAN v. STATE OF KERALA[MADAN B. LOKUR, J.]

3. The Trial Judge stated, while awarding the sentence of death,as follows:

“231. The cruel tendency of the accused was writ large even inthe manner of attack. His conduct and behaviour is repulsive tothe collective conscience of the society. It is clear that he doesnot value the lives of others in the least. The fact that the murdersin this case were committed in such a deliberate and diabolicmanner even beyond the slight expectation of the victims, withoutany provocation whatsoever from the side of the victims that toohaving enjoyed the hospitality and kindness of the victims, indicatethe cold blooded and premeditated approach of the accused toput to death the victims which included two innocent children intheir earlier teenages also, for a sordid purpose.

232. It was clearly come out that his wife and child are not residingwith the accused. He does not know even the school at which hiswife is working as teacher. Even according to him, she has notcared to come to reside with him after the incident in this case. Infact, all my searches for extenuating circumstances in this caseare in vain. From various judicial pronouncements of the Hon’bleSupreme Court of India on the subject, it has come out that in thechoice of sentence the court has to weigh the aggravating andmitigating factors available on the facts of the case to find outwhether special reasons do exist to categories [categorize] thecase as one among the “rarest of rare cases”.

233. The accused is a hardened criminal beyond any correctionand rehabilitation. In this case the culpability has assumed thepreparation of extreme depravity. The accused is a preferredexample of blood thirsty, irreclaimable and hardened criminal. Thiscourt is of the view that, to spare such a criminal from the gallowsis to render the justicing system suspect and to have recourse tothe lesser alternative in sentencing this accused will be a mockeryof justice. As this incident had sent tremors in the society and thecollective conscience of the community as such was shocked, itis not to be humane but to be callous to allow such a criminal toreturn to the society. When multiple murders are committed inthe most cruel, inhuman, extreme, brutal, gruesome, diabolic,revolting and dastardly manner, this court cannot wriggle out ofthe infliction of the extreme penalty. Matters being so, special ABC

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reasons do exist in this case under Section 354(3) Cr. P.C. andthis case comes within the category of “rarest of rare case” inwhich the “lesser alternative is unquestionably foreclosed.”

4. The conviction and sentence came up for confirmation beforethe High Court of Kerala in Death Sentence Reference No.5 of 2005.BThe appellant was also aggrieved by his conviction and sentence and hepreferred Criminal Appeal No.385 of 2005 against the judgment andsentence of the Trial Court.

5. By a judgment and order dated 18[th] September, 2006 the HighCourt confirmed the death sentence and dismissed the appeal of theappellant.C

6. On the award of the death sentence, the High Court took theview that the crime committed by the appellant was most cruel anddiabolical. It was observed that he had no respect, no care, no dignity,no mercy for human life and his living in this world is most dangerous tosociety. The High Court expressed its views on the sentence to beDawarded to the appellant in paragraph 49 of the judgement. This readsas follows:

“49. On the question of sentence all that has been urged beforeus by Mr. Ramakumar is that the present is not a ‘rarest of rare’case where the appellant should be given capital punishment. Noarguments have been raised to show any mitigating circumstances.We have reconsidered and yet reconsidered every aspect of thecase. On every reconsideration, our view gets more and morestrengthened that in the present case, death penalty has to beimposed. It is indeed a rarest of rare case. In this country ofseers and sages, even a worm unconsciously trampled under thefoot is considered to be a sin. Guided and motivated by traditionof non-violence, people in this country do not even think ofphysically harming anyone. Mahatma Gandhi, the Father of theNation and many other stalwarts brought freedom to this Nationfrom the British Empire by fighting a bloodless war ofindependence. The appellant has trampled these lofty ideals andtraditions of this country under his foot. He extinguished allmembers of a family in a most cruel and gruesome manner. Hebecame instrumental in causing black and unmitigated tragedyand caused shudders to the society. In causing death of sixmembers of a family, he acted in a most cruel and diabolical E

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manner. He used every possible instrument in the house to causetheir death. As the confession goes if knives would not be enoughto kill the inmates, he would use furniture in the house to strikethem, and if that be not enough he would axe them, and even ifthat be not enough he would electrocute them and if still not enoughhe would strangulate them. In cruelty and brutality, he exceededall limits. It is unimaginable, unthinkable and difficult to believethat after causing six murders by splashing blood all around thehouse, he would sit in the same house for almost five hours as ifhe was not siting amongst six dead people, but amongst trophieswon by him in a prestigious event. He has no respect, no care, nodignity, no mercy for human life. His living in this world is mostdangerous to the society. We need not refer to various judicialprecedents as every case has its own facts, but would hasten tomake reference to only one case which appears nearest on factsof the present case. In Dayanidhi Bisoi v. State of Orissa,2003 Crl.L.J. 3697 (SC), a case which was based uponcircumstantial evidence, accused was related to the deceased.He was enjoying hospitality and kindness of deceased in theevening. He killed entire family of deceased which included athree years child in the night. Murders were committed when thevictims were sleeping and there was no provocation from thevictims. The motive was only to gain financial benefits. TheSupreme Court found it to be case of cold blooded murder withpremeditated approach of accused. It was held to be a rarest ofrare case. The accused was sentenced to death.”

7. Feeling aggrieved by his conviction and confirmation of thedeath sentence, the appellant preferred Criminal Appeal No. 811 of 2009in this Court which was dismissed by a judgment and order dated 22[nd]April, 2009. This Court did not at all advert to or discuss the quantum ofsentence awarded to the appellant. This was decided on its facts anddismissed.

8. Feeling aggrieved by the dismissal of his appeal, the appellantpreferred Review Petition (Crl.) No.245 of 2010 but that was dismissedby an order dated 13[th] April, 2010.

9. In view of the decision of this Court in Mohd. Arif alias Ashfaqv. The Registrar Supreme Court of India & others[1] the said reviewpetition was re-opened for consideration and that is how it is before us.

1(2014) 9 SCC 737

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ASubmissions

10. Learned counsel for the appellant raised a variety of groundsfor commuting the death sentence awarded to the appellant into one oflife sentence. It was contended that the case was one of circumstantialevidence and therefore the sentence of death should not be awarded.BIt was also contended that this Court as well the High Court and theTrial Court failed to consider the probability of reformation of the appellant.It was also contended that the prior history and criminal antecedents ofthe appellant were not relevant in awarding the sentence. It was submittedthat the Trial Judge had erroneously described the appellant as a hardenedcriminal. In fact, we find that learned counsel for the appellant is correctCin this submission since there is absolutely nothing on record to showthat the appellant had previously committed any crime whatsoever. Indeed,there is nothing on record to even suggest that the appellant was ahardened criminal.

11. We do not propose to deal with the submissions advanced byDlearned counsel since similar submissions were raised before us inRajendra Pralhadrao Wasnik v. State of Maharashtra in which wehave delivered judgment today. The cases cited by learned counsel forthe appellant in this petition as well as in Rajendra Pralhadrao Wasnikwere the same and we would only be duplicating our efforts and repeatingwhat we have already said.E

12. Apart from the above submissions, it was contended by learnedcounsel for the appellant that the socio-economic circumstances relatingto the appellant are relevant for an objective consideration of the awardof sentence and these have not been considered by any court includingthis Court.F

13. It was submitted that the “collective conscience of the society”and reference to it for the purposes of imposition of a sentence is totallymisplaced. It is not possible to determine public opinion through evidencerecorded in a trial for an offence of murder and it is even more difficult,if not impossible, to determine something as amorphous as the collectiveGconscience of the society.

14. Finally, it was submitted that the appellant has been in custodyfor a considerable period of time and that by itself is a good ground forcommutation of his sentence from death to life imprisonment. In thiscontext, it was stated that the appellant was arrested on 18[th] February,H2001. He remained in custody until he was granted bail on 25[th] January,

2002. He was again arrested when the Trial Court convicted him on31[st] January, 2005 and since then he is continuously in custody havingspent about 14 years in custody and about three years on bail.

Consideration of socio-economic factors

15. There is no doubt that the socio-economic factors relating to aconvict should be taken into consideration for the purposes of decidingwhether to award life sentence or death sentence. One of the reasonsfor this is the perception (perhaps misplaced) that it is only convictsbelonging to the poor and disadvantaged sections of society that areawarded capital sentence while others are not. Although Bachan Singhv. State of Punjab[2]does not allude to socio-economic factors for beingtaken into consideration as one of the mitigating factors in favour of aconvict, the development of the law in the country, particularly throughthe Supreme Court, has introduced this as one of the factors to be takeninto consideration. In fact, in Bachan Singh this Court recognised thata range of factors exist and could be taken into consideration and acceptedthis position. In paragraph 209 of the Report it is rather felicitously statedas follows:

“209. There are numerous other circumstances justifying thepassing of the lighter sentence; as there are countervailingcircumstances of aggravation. “We cannot obviously feed into ajudicial computer all such situations since they are astrologicalimponderables in an imperfect and undulating society.”Nonetheless, it cannot be over-emphasised that the scopeand concept of mitigating factors in the area of death penaltymust receive a liberal and expansive construction by thecourts in accord with the sentencing policy writ large inSection 354(3). Judges should never be bloodthirsty.Hanging of murderers has never been too good for them.[3]Facts and Figures, albeit incomplete, furnished by the Union ofIndia, show that in the past, courts have inflicted the extremepenalty with extreme infrequency — a fact which attests to thecaution and compassion which they have always brought to bearon the exercise of their sentencing discretion in so grave a matter.It is, therefore, imperative to voice the concern that courts, aidedby the broad illustrative guide-lines indicated by us, will dischargethe onerous function with evermore scrupulous care and humane 2(1980) 2 SCC 684

3We may add that hanging of murderers has never been too good for them either!

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Aconcern, directed along the highroad of legislative policy outlinedin Section 354(3) viz. that for persons convicted of murder, lifeimprisonment is the rule and death sentence an exception. A realand abiding concern for the dignity of human life postulatesresistance to taking a life through law’s instrumentality. That oughtnot to be done save in the rarest of rare cases when the alternativeBoption is unquestionably foreclosed.” (Emphasis supplied by us).

16. Following the view laid down by the Constitution Bench ofthis Court, we endorse and accept that socio-economic factors must betaken into consideration while awarding a sentence particularly the groundrealities relating to access to justice and remedies to justice that are notCeasily available to the poor and the needy.

17. The consideration of socio-economic factors is tied up withanother important issue (which need not necessarily or always be takeninto consideration for sentencing purposes, but could be relevant in agiven case) and that is whether the convict has had adequate legalDrepresentation. Several accused persons belonging to the weaker sectionsof society cannot afford defence counsel and they are obliged to turn tothe National Legal Services Authority, the State Legal Services Authorityor the District Legal Services Committee for legal representation. Whilethese authorities provide the best legal assistance possible at theircommand, it sometimes falls short of expectations resulting in theEconviction of an accused and, depending upon the facts of the case andthe sentencing process followed, a sentence of death follows.

18. That the poor are more often than not at the receiving end inaccess to justice and access to the remedies available is evident from afairly recent report prepared by the Supreme Court Legal ServicesFCommittee[4] which acknowledges, through Project Sahyog, enormousdelays in attending to cases of the poor and the needy. Quality legal aidto the disadvantaged and weaker sections of society is an area thatrequires great and urgent attention and we hope that a vigorous beginningis made in this direction in the new year.G19. Reverting to the issue of socio-economic factors, we are notsure when this was introduced as a mitigating factor for consideration indeciding whether life imprisonment or death sentence should be awarded.Be that as it may, the earliest decision to which our attention was drawnis State of U.P. v. M.K. Anthony[5] in which this Court cautioned against H45Website of the Supreme Court Legal Services Committee – www.sclsc.nic.in(1985) 1 SCC 505

being overwhelmed by the gravity or brutality of the offence. As held inBachan Singh, it is not only the crime that is of importance in thesentencing process but it is also the criminal. With this in view, this Courtconsidered the plight of the have-not and commuted the death sentenceinto one of imprisonment for life. This is what this Court said in paragraph23 of the Report:

“23. The last question is what sentence should be imposed uponthe respondent. The learned Sessions Judge has imposed maximumpenalty that could be imposed under the law, namely, sentence ofdeath. The murder of near and dear ones including two innocentkids is gruesome. We must however be careful lest theshocking nature of crime may induce an instinctive reactionto the dispassionate analysis of the evidence both as tooffence and the sentence. One circumstance that stands out infavour of the respondent for not awarding capital punishment isthat the respondent did not commit murder of his near and dearones actuated by any lust, sense of vengeance or for gain. Theplight of an economic have-not sometimes becomes sotragic that the only escape route is crime. The respondentcommitted murder because in his utter helplessness hecould not find few chips to help his ailing wife and he sawthe escape route by putting an end to their lives. This onecircumstance is of such an overwhelming character that eventhough the crime is detestable we would refrain from imposingcapital punishment. The respondent should accordingly besentenced to suffer imprisonment for life.” (Emphasis suppliedby us).

20. In Surendra Pal Shivbalakpal v. State of Gujarat[6]this Courtconsidered the socio-economic condition of the appellant therein, namelythat he was a migrant labourer and was living in impecuniouscircumstances and therefore it could not be said that he would be amenace to society in future. The sentence of death was converted intoone of imprisonment for life. This is what this Court said in paragraph 13of the Report:

“…..The appellant was aged 36 years at the time of theoccurrence and there is no evidence that the appellant had beeninvolved in any other criminal case previously and the appellant A

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Awas a migrant labourer from U.P. and was living in impecuniouscircumstances and it cannot be said that he would be a menace tosociety in future and no materials are placed before us to drawsuch a conclusion. We do not think that the death penalty waswarranted in this case…...”B21. Similarly, in Sushil Kumar v. State of Punjab[7] the poverty ofthe convict was taken into consideration as a factor for sentencing. ThisCourt in paragraph 46 of the Report held as follows:

“Extreme poverty had driven the appellant to commit thegruesome murder of three of his very near and dear familymembers – his wife, minor son and daughter. There is nothing onCrecord to show that appellant is a habitual offender. He appearsto be a peace-loving, law abiding citizen but as he was poverty-stricken, he thought in his wisdom to completely eliminate his familyso that all problems would come to an end. Precisely, this appearsto be the reason for him to consume some poisonous substances,Dafter committing the offence of murder.” (Emphasis supplied byus).

22. In Mulla v. State of Uttar Pradesh[8]this Court specificallynoted in paragraph 80 of the Report that one of the factors that appearsto have been left out in judicial decision-making on the issue of sentencing,Eis the socio-economic factor which is a mitigating factor although it maynot dilute the guilt of the convict. This is what this Court held:

“80. Another factor which unfortunately has been left out inmuch judicial decision-making in sentencing is the socio-economic factors leading to crime. We at no stage suggestFthat economic depravity justify moral depravity, but wecertainly recognise that in the real world, such factors maylead a person to crime. The 48th Report of the Law Commissionalso reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt, but they may amountto mitigating circumstances. Socio-economic factors lead usGto another related mitigating factor i.e. the ability of the guilty toreform. It may not be misplaced to note that a criminal whocommits crimes due to his economic backwardness is most likelyto reform. This Court on many previous occasions has held that 7(2009) 10 SCC 434H8(2010) 3 SCC 508

this ability to reform amounts to a mitigating factor in cases ofdeath penalty.” (Emphasis supplied by us).

23. In Kamleshwar Paswan v. Union Territory of Chandigarh[9]this Court noted the fact that the convict was a rickshaw puller and amigrant with psychological and economic pressures. The socio-economiccondition of the convict was therefore taken into consideration for thepurposes of sentencing him. It was held in paragraph 8 of the Report asfollows:

“8. We cannot also ignore the fact that the appellant was arickshaw-puller and a migrant in Chandigarh with theattendant psychological and economic pressures that sooften overtake and overwhelm such persons. VillageKishangarh is a part of the Union Territory of Chandigarh and ata stone’s throw from its elite sectors that house the Governors ofPunjab and Haryana, the Golf Club, and some of the city’s mostimportant and opulent citizens. It goes without saying that mostsuch neighbourhoods are often the most unfriendly and indifferentto each others’ needs. Little wonder his frustrations apparentlycame to the fore leading to the horrendous incident.” (Emphasissupplied by us).

24. Finally, in Mahesh Dhanaji Shinde v. State of Maharashtra[10]it was noted that the convicts were living in acute poverty. However,their conduct in jail was heartening inasmuch as they had educatedthemselves and has shown that if given a second chance, they could livea meaningful and constructive life. This Court noted as follows:

“38. At the same time, all the four accused were young in age atthe time of commission of the offence i.e. 23-29 years. Theybelong to the economically, socially and educationallydeprived section of the population. They were living in acutepoverty. It is possible that, being young, they had a yearning forquick money and it is these circumstances that had led to thecommission of the crimes in question. Materials have been laidbefore this Court to show that while in custody all the accusedhad enrolled themselves in Yashwantrao ChavanMaharashtra Open University and had either completedthe BA examination or are on the verge of acquiring thedegree…….. There is no material or information to show any 9(2011) 11 SCC 564

10(2014) 4 SCC 292

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Acondemnable or reprehensible conduct on the part of any of theappellants during their period of custody. All the circumstancespoint to the possibility of the appellant-accused being reformedand living a meaningful and constructive life if they are to begiven a second chance…….” (Emphasis supplied by us).

B25. There is, therefore, enough case law to suggest that socio-economic factors concerning a convict must be taken into considerationwhile taking a decision on whether to award a sentence of death or toaward a sentence of imprisonment for life.

26. On the facts of the present case, we find from the decision ofthe Trial Court that the convict was working as a driver on a casualCbasis. He was desirous of obtaining employment in the Gulf and wasmaking all attempts in this direction. He managed to arrange a visa buthad to pay the agent Rs.62,000/-. Due to severe financial constraints hecould only arrange Rs.25,000/- for making the initial payment. Hecontinued making attempts to raise the amount. His economic conditionDwas so severe that for the purposes of going to Gulf he had to proceedfrom Ernakulam to Mumbai by train and while he could manage topurchase the ticket, he was unable to pay for reservation charges. Underthese circumstances, he had gone to the house of the deceased familyfor getting money or by stealing it or by grabbing it by any other means.It is under this financial and economic stress that his presence in theEhouse of the deceased family was explained. But unfortunately for himand the deceased family, he was unable to obtain any funds from themand this led to his decision to kill all of them.

Public opinion or collective conscience of the society F27. With regard to the second submission made by learned counselfor the appellant, that is, relating to the collective conscience of the societyor public opinion, we draw attention to an extremely educative discussionon the topic in Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra[11]in paragraphs 80 to 89 of the Report. We do not find thenecessity of repeating the enlightening discussion. We may only noteGthat in this decision, reference was made with regard to this topic inBachan Singh in paragraph 126 of the Report to the following effect:

“126. Incidentally, the rejection by the people of the approach,adopted by the two learned Judges in Furman[12], furnishes proofof the fact that judicial opinion does not necessarily reflect the H11(2009) 6 SCC 49812Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 (1972)

moral attitudes of the people. At the same time, it is a reminderthat Judges should not take upon themselves theresponsibility of becoming oracles or spokesmen of publicopinion: Not being representatives of the people, if is often better,as a matter of judicial restraint, to leave the function of assessingpublic opinion to the chosen representatives of the peoplein the legislature concerned.” (Emphasis supplied by us).

In our opinion therefore, the learned Trial Judge was in error incoming to the conclusion that the collective conscience of the societywas disturbed and felt repulsed by the gravity of the crime committed bythe appellant. In view of the Constitution Bench decision of this Court inBachan Singh and in Bariyar it would be wise if impressions gatheredon what is perceived to be public opinion or collective conscience of thesociety are eschewed while sentencing a convict found guilty of a graveor brutal crime. On the facts of the present case, we find that there wasno material whatsoever to come to the conclusion that the gravity of thecrime caused revulsion in the society or that it had materially disturbednormal life in the society. Consequently, the view expressed by the learnedTrial Judge in this regard must be disregarded for the purposes of imposingan appropriate sentence on the appellant.

Conclusion

28. On an overall consideration of the facts of the case from thepoint of view of the crime and the criminal, we are of opinion that eventhough the case may be one of circumstantial evidence, it is now wellsettled that that by itself is not enough to convert a sentence of deathinto a sentence of imprisonment for life. We have held so in RajendraPralhadrao Wasnik and do not feel the necessity of repeating whathas already been said.

29. We are also of opinion that all the courts including this Courtoverlooked consideration of the probability of reform or rehabilitationand social reintegration of the appellant into society. There is nomeaningful discussion on why, if at all, the appellant could not be reformedor rehabilitated.

30. The Trial Court was in error proceeding on the basis, whileawarding a sentence of death to the appellant by observing that he wasa hardened criminal. There is no such evidence on material or on record.

AB

C

D

E

F

G

A

A31. The socio-economic condition of the appellant was a significantfactor that ought to have been taken into consideration by the Trial Courtas well the High Court while considering the punishment to be given tothe appellant. While the socio-economic condition of a convict is not afactor for disproving his guilt, it is a factor that must be taken intoconsideration for the purposes of awarding an appropriate sentence to aBconvict.

32. We do not think it necessary to consider on the facts of thiscase, the period of incarceration of the appellant as a factor for decidingwhether or not he should be awarded the death sentence. This is afactor that ought to have been placed before the Trial Judge and whileCwe could certainly take this into consideration, we hesitate to do so inview of some uncertainty in this regard. In Ramesh v. State ofRajasthan[13] an opinion was expressed in paragraph 76 of the Reportthat since the appellant therein had been languishing on death row formore than six years that would be a mitigating circumstance in his favour.DThere are a number of cases where convicts have been on death rowfor more than six years and if a standard period was to be adopted,perhaps each and every person on death row might have to be given thebenefit of commutation of death sentence to one of life imprisonment.The long delays in courts must, of course, be taken into account, butwhat is needed is a systemic and systematic reform in criminal justiceEdelivery rather than ad hoc or judge-centric decisions.33. In view of the above discussion, the death sentence awardedto the appellant is converted into a sentence of imprisonment for life.

34. The petition stands disposed of accordingly.

F

Divya Pandey

Review petition disposed of.

G