SUNDAR @ SUNDARRAJAN versus STATE BY INSPECTOR OF POLICE on 21 March 2023

[2023] 5 S.C.R. 1016

SUPREME COURT REPORTS

[2023] 5 S.C.R.

A

SUNDAR @ SUNDARRAJAN

v.

STATE BY INSPECTOR OF POLICE

(Review Petition (Crl.) Nos. 159-160 of 2013)

B

In

(Criminal Appeal Nos. 300-301 of 2011)

MARCH 21, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI,CHIMA KOHLI AND PAMIDIGHANTAM SRI NARASIMHA, JJ.]

Constitution of India : Arts. 137 – Review jurisdiction inmatters pertaining to capital punishment – Scope of – Petitioneraccused of kidnapping and murdering a 7-year old child –Conviction u/ss. 364A, 302 and 201 IPC and imposition of deathDsentence by the courts below – Upheld by this Court – Reviewthereagainst – Dismissed through circulation – However, in view ofthe judgment in Mohd. Arif’s case, order dismissing the review petitionthrough circulation recalled and the petition heard in open Court –Held: None of the grounds raised amount to errors apparent on theEface of the record – All the grounds fail to raise any reasonabledoubt in the prosecution case – Thus, no reason to interfere withthe concurrent findings of the trial court, the High Court and thisCourt vis-a-vis the guilt of the petitioner for kidnapping andmurdering the victim – Even though the crime committed by thepetitioner is unquestionably grave and unpardonable, it is notFappropriate to affirm the death sentence awarded to him – ‘Rarestof rare’ doctrine requires that the death sentence not be imposedonly by taking into account the grave nature of crime but only ifthere is no possibility of reformation in a criminal – No mitigatingcircumstances were placed before any of the appellate courts – ItGcannot be said that there is no possibility of reformation even thoughthe petitioner has committed a ghastly crime – Also it was submittedthat the hearing was not conducted separately in the trial court –Thus, in view of the gruesome nature of the crime of murder of 7year old child, the death sentence is commuted to life imprisonment H

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE

for not less than twenty years without reprieve or remission –Supreme Court Rules 2013 – Ord. XLVII r. 1.

Sentence/sentencing:

Capital punishment – Mitigating circumstances –Consideration of, while deciding upon the sentence – Held: Dutyof the court is to enquire into mitigating circumstances as well as toforeclose the possibility of reformation and rehabilitation beforeimposing the death penalty – State must equally place all materialand circumstances on the record bearing on the probability of reform– Many such materials and aspects are within the knowledge of theState which has had custody of the accused both before and afterthe conviction – Moreover, the court cannot be an indifferent by-stander in the process – Process and powers of the court may beutilised to ensure that such material is made available to it to form ajust sentencing decision bearing on the probability of reform.

Capital punishment – Aggravating circumstances –Consideration of, while deciding upon the sentence – Held: Sex ofthe child cannot be in itself considered as an aggravatingcircumstance – Murder of a young child is a grievous crime and theyoung age of the victim as well as the trauma caused to the entirefamily is in itself, an aggravating circumstance – It does not andshould not matter for a constitutional court whether the young childwas a male child or a female child – Courts should not indulge infurthering the notion that only a male child furthers family lineageor is able to assist the parents in old age – Such remarks involuntarilyfurther patriarchal value judgments that courts should avoid.

Evidence Act, 1972 : s. 65 B – Electronic evidence in theform of Call detail records-CDRs – Production of a certificate u/s.65 B, if mandatory for admitting any electronic evidence – Held:s. 65B certificate is mandatory – On facts, the review petition to beconsidered eschewing the electronic evidence in the form of CDRsas they are without the appropriate certificate u/s. 65B.

Contempt of Court : Non-disclosure of material facts –Petitioner-convict tried to escape from prison – Inspector of Policein the affidavit filed, materially withheld information regardingconduct of the petitioner in the prison from the Court – Thus,initiation of Suo Motu contempt proceedings against the convict.

A

BC

D

E

F

G

H

1018SUPREME COURT REPORTS

ADisposing of the review petitions, the Court HELD: 1.1 The evidence in the form of CDRs-Call DetailRecord was merely to corroborate the evidence that had beengiven through the depositions of PW1 and PW8. Both of theirtestimonies stand corroborated not only through the CDRs butBalso through the recovery of the mobile phone on the basis of theconfessional statement of the petitioner. Even if Ex. P5, beingthe CDR, is not relied upon by this Court, the case of theprosecution is not weakened as it merely corroborates thedocumentary evidence and witness testimonies that remainunblemished regardless. In view thereof, it is clear that there isCno reason to doubt the guilt of the petitioner. Therefore, eventhough none of the grounds raised by the petitioner amount toerrors apparent on the face of the record, in view of thereof, itcan also be conclusively said that all the grounds on merits fail toraise any reasonable doubt in the prosecution’s case. There isDno reason in the review jurisdiction to interfere with theconcurrent findings of the trial court, High Court and this Courtvis–à–vis the guilt of the petitioner for kidnapping and murderingthe victim. [Para 52-54][1048-E-F; 1049-F-H]

1.2 The counsel for the petitioner submitted that theEsentence of death cannot be imposed in such cases where theconviction is based on circumstantial evidence as a ‘lingeringdoubt’ regarding the guilt of the accused persists. The argumentof residual or lingering doubt does not come to the rescue of thepetitioner. [Para 57, 59][1050-C-D]

F1.3 This Court has already applied the relevant standard toconfirm the guilt of the petitioner in the appeal in a case which isbased on circumstantial evidence and it will not be appropriatefor this Court to once again venture into an assessment of theevidence in the review jurisdiction in view of its limited scope.[Para 60][1051-F-G]G

1.4 In the instant case, the judgment of the trial court dealingwith sentencing indicates that a meaningful, real and effectivehearing was not afforded to the petitioner. The trial court did notconduct any separate hearing on sentencing and did not take intoaccount any mitigating circumstances pertaining to the petitioner H

before awarding the death penalty. The High Court took intoaccount the gruesome and merciless nature of the act. It reiteratedthe precedents stating that the death penalty is to be awardedonly in the rarest of rare cases. However, it did not specificallylook at any mitigating circumstances bearing on the petitioner.This Court examined the aggravating circumstances of the crimein detail. The above sequence indicates that no mitigatingcircumstances of the petitioner were taken into account at anystage of the trial or the appellate process even though thepetitioner was sentenced to capital punishment. [Para 70-74][1056-B-C, F-G; 1057-A,D]

1.5 In terms of the aggravating circumstances that weretaken note of by this Court in appeal, the attention has been drawnto certain circumstance. It is noted that the sex of the child cannotbe in itself considered as an aggravating circumstance by aconstitutional court. The murder of a young child isunquestionably a grievous crime and the young age of such avictim as well as the trauma that it causes for the entire family isin itself, undoubtedly, an aggravating circumstance. In such acircumstance, it does not and should not matter for a constitutionalcourt whether the young child was a male child or a female child.The murder remains equally tragic. Courts should also not indulgein furthering the notion that only a male child furthers familylineage or is able to assist the parents in old age. Such remarksinvoluntarily further patriarchal value judgements that courtsshould avoid regardless of the context. [Para 75][1057-E, H;1058-A-C]

1.6 No inquiry was conducted for enabling a considerationof the factors mentioned in case of the petitioner. Neither thetrial court, nor the appellate courts have looked into any factorsto conclusively state that the petitioner cannot be reformed orrehabilitated. The Courts have reiterated the gruesome natureof crime to award the death penalty. In appeal, this Court merelynoted that the counsel for the petitioner could not point towardsmitigating circumstances and upheld the death penalty. The statemust equally place all material and circumstances on the recordbearing on the probability of reform. Many such materials andaspects are within the knowledge of the state which has hadcustody of the accused both before and after the conviction.

AB

C

D

E

F

GH

AMoreover, the court cannot be an indifferent by-stander in theprocess. The process and powers of the court may be utilised toensure that such material is made available to it to form a justsentencing decision bearing on the probability of reform. [Para79][1061-D-F]B1.7 The duty of the court to enquire into mitigatingcircumstances as well as to foreclose the possibility of reformationand rehabilitation before imposing the death penalty has beenhighlighted in multiple judgments of this Court. Despite this, inthe present case, no such enquiry was conducted and the grievousnature of the crime was the only factor that was considered whileCawarding the death penalty. [Para 81][1062-H; 1063-A]

1.8 The fact remains that no mitigating circumstances wereplaced before any of the appellate courts. It cannot be said thatthere is no possibility of reformation even though the petitionerhas committed a ghastly crime. The mitigating factors that theDpetitioner has no prior antecedents, was 23 years old when hecommitted the crime and has been in prison since 2009 wherehis conduct has been satisfactory, except for the attempt to escapeprison in 2013; that the petitioner is suffering from a case ofsystemic hypertension and has attempted to acquire some basicEeducation in the form of a diploma in food catering; that theacquisition of a vocation in jail has an important bearing on hisability to lead a gainful life, must be considered. Considering theabove factors, even though the crime committed by the petitioneris unquestionably grave and unpardonable, it is not appropriateto affirm the death sentence that was awarded to him. The ‘rarestFof rare’ doctrine requires that the death sentence not be imposedonly by taking into account the grave nature of crime but only ifthere is no possibility of reformation in a criminal. However, theCourt is also aware that a sentence of life imprisonment is subjectto remission. This would not be adequate in view of the gruesomeGcrime committed by the petitioner. [Para 88-90][1064-E-H; 1065-A]

1.9 There is no reason to doubt the guilt of the petitionerin kidnapping and murdering the victim. The exercise of thejurisdiction in review to interfere with the conviction is notHwarranted. However, the Court does take note of the arguments

regarding the sentencing hearing not having been conductedseparately in the trial court and mitigating circumstances havingnot been considered in the appellate courts before awarding thecapital punishment to the petitioner. While weighing thisargument, the gruesome nature of the crime of murder of a youngchild of merely 7 years of age has also weighed upon the Courtand the Court does not find that a sentence of life imprisonment,which normally works out to a term of 14 years, would beproportionate in the circumstances. Accordingly, the deathsentence imposed upon the petitioner is commuted to lifeimprisonment for not less than twenty years without reprieve orremission. [Para 93, 94][1066-B-E]

1.10 Separately, a notice is required to be issued to theInspector of Police, Kammapuram Police Station, CuddaloreDistrict, State of Tamil Nadu to offer an explanation as to whyaction should not be taken for the filing of the affidavit dated 26September 2021. In this case, prima facie, material informationregarding the conduct of the petitioner in the prison was concealedfrom this Court. Accordingly, the Registry is directed to registerthe matter as a suo motu proceeding for contempt of court. [Para95][1066-F]

Mohd. Arif alias Ashfaq v Registrar, Supreme Court ofIndia 2014 (9) SCC 737 : [2014] 11 SCR 1009 –followed Mofil Khan v State of Jharkhand 2021 SCC OnLineSC1136; Arjun Panditrao Khotkar v Kailash KushanraoGorantyal 2020 (7) SCC 1; Anvar P.V. v P.K. Basheer2014 (10) SCC 473 : [2014] 11 SCR 399; State (NCTof Delhi) v Navjot Sandhu 2005 (11) SCC 600 : [2005]2 Suppl. SCR 79; Tomaso Bruno v State of UttarPradesh 2015 (7) SCC 178 : [2015] 1 SCR 721; ShafiMohammed v State of Himachal Pradesh 2018 (2) SCC801; Sonu alias Amar v State of Haryana 2017 (8) SCC570 : [2017] 8 SCR 151; Mohd. Arif v State (NCT ofDelhi) 2022 SCC OnLine SC 1509; Shatrughna BabanMeshram v State of Maharashtra 2021 (1) SCC 596;Santa Singh v State of Punjab 1976 (4) SCC 190 :[1977] 1 SCR 229; Bachan Singh v State of Punjab AB

C

D

E

F

G

H

SUPREME COURT REPORTS

A1980 (2) SCC 684; Muniappan v State of Tamil Nadu1981 (3) SCC 11 : [1981] 3 SCR 270; Allauddin Mianv State of Bihar 1989 (3) SCC 5 : [1989] 2 SCR 498;Anguswamy v State of Tamil Nadu 1989 (3) SCC 33;Malkiat Singh v State of Punjab 1991 (4) SCC 341 :[1991] 2 SCR 256; Dattaraya v State of MaharashtraB2020 (14) SCC 290 : [2019] 11 SCR 295; Dagdu vState of Maharashtra 1977 (3) SCC 68 : [1977] 3 SCR636; Tarlok Singh v State of Punjab 1977 (3) SCC 218: [1977] 3 SCR 711; Ramdeo Chauhan v State of Assam2001 (5) SCC 714 : [2001] 3 SCR 669; In re: FramingCGuidelines Regarding Potential MitigatingCircumstances to be Considered while Imposing DeathSentences Suo Motu W.P. (Crl.) No. 1/2022; RajendraPralhadrao Wasnik v State of Maharashtra 2019 (12)SCC 460 : [2018] 14 SCR 585; Santosh KumarSatishbhushan Bariyar v State of Maharashtra 2009D(6) SCC 498 : [2009] 9 SCR 90; Anil v State ofMaharashtra 2014 (4) SCC 69 : [2014] 3 SCR 34;Swamy Shraddananda (2) @ Murali Manohar Mishrav State of Karnataka 2008 (13) SCC 767 – referredto.

E

Exercise of Review Jurisdiction in Capital Cases inDEATH PENALTY AND THE INDIAN SUPREMECOURT (2007–2021), Project 39A, National LawUniversity Delhi (2022) – referred to.

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE

INHERENT JURISDICTION : Review Petition (Crl.) Nos.159-160 of 2013 In Criminal Appeal Nos.300-301 of 2011.

From the Judgment and Order dated 15.02.2013 in Crl. A. Nos.300Eand 301 of 2011 of the Supreme Court of India.

Renjith B. Marar, Ms. Lakshmi N. Kaimal, Arun Poonavlli, M. J.Santhosh, Advs. for the Petitioner.

V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Ms. NupurFSharma, Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. RichaVishwakarma, Advs. for the Respondent.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI

G

This Judgment consists of the following sections:

H

*Ed. Note : Pagination is as per the original judgment.

AD.Error Apparent on the Face of the Record? .......10*

D.1Submissions of Counsel.................................... 10*D.2.Analysis ............................................................ 12*

E.Sentencing & Mitigation........................................32*

E.1.Lingering Doubt Theory ..............................32*

B

E.2.Sentencing & Mitigation in the Trial Court and the Appellate Courts ....................................34*

F.Conclusion ................................................................50*

C1. The applicant is a convict on death row. He has moved thiscourt for a fresh look at his petition seeking a review of his convictionfor the offence of murder and the award of the sentence of death. Hedoes soon the basis of the decision of the Constitution Bench in Mohd.Arif alias Ashfaq v Registrar, Supreme Court of India[1]. In Mohd.Arif, this Court has held that review petitions arising from convictionDand the imposition of the sentence of death must be heard in open courtand cannot be disposed of by circulation. The Constitution Bench alloweda period of a month from the date of judgment to petitioners whoseapplications seeking review of the judgment of this Court confirming theaward of the sentence of death were rejected by circulation, where thesentence was yet to be executed.

E

A. Prologue – The impact of Mohd. Arif

2. In Mohd. Arif, this Court took note of the irreversible nature ofthe death penalty and of the possibility of two judicial minds reachingdiffering conclusions on the question of a case being appropriate for theaward of the death penalty. The judgment of the majority allowed theFright to oral hearing in review for cases involving death penalty:

29. […] death sentence cases are a distinct category of casesaltogether. Quite apart from Article 134 of the Constitution grantingan automatic right of appeal to the Supreme Court in all deathsentence cases, and apart from death sentence being granted onlyGin the rarest of rare cases, two factors have impressed us. Thefirst is the irreversibility of a death penalty. And the secondis the fact that different judicially trained minds can arriveat conclusions which, on the same facts, can be diametrically *Ed. Note : Pagination is as per the original judgment.

1 2014 (9) SCC 737H

opposed to each other. Adverting first to the second factormentioned above, it is well known that the basic principlebehind returning the verdict of death sentence is that ithas to be awarded in the rarest of rare cases. There may beaggravating as well as mitigating circumstances which areto be examined by the Court. At the same time, it is notpossible to lay down the principles to determine as to whichcase would fall in the category of rarest of rare cases,justifying the death sentence. It is not even easy to mentionprecisely the parameters or aggravating/mitigating circumstanceswhich should be kept in mind while arriving at such a question.Though attempts are made by Judges in various cases to statesuch circumstances, they remain illustrative only.

30. […] A sentence is a compound of many factors, including thenature of the offence as well as the circumstances extenuating oraggravating the offence. A large number of aggravatingcircumstances and mitigating circumstances have been pointedout in Bachan Singh v. State of Punjab, SCC at pp. 749-50,paras 202 & 206, that a Judge should take into account whenawarding the death sentence. Again, as pointed out above,apart from the fact that these lists are only illustrative, asclarified in Bachan Singh itself, different judicially trainedminds can apply different aggravating and mitigatingcircumstances to ultimately arrive at a conclusion, onconsidering all relevant factors that the death penalty mayor may not be awarded in any given case. Experience basedon judicial decisions touching upon this aspect amplydemonstrate such a divergent approach being taken.Though, it is not necessary to dwell upon this aspectelaborately, at the same time, it needs to be emphasisedthat when on the same set of facts, one judicial mind cancome to the conclusion that the circumstances do notwarrant the death penalty, whereas another may feel it tobe a fit case fully justifying the death penalty, we feel thatwhen a convict who has suffered the sentence of death andfiles a review petition, the necessity of oral hearing in sucha review petition becomes an integral part of “reasonableprocedure”.

AB

C

D

E

F

G

H

A

A3. A recent study by Project 39A examined all the judgmentsinvolving a sentence of death delivered by the Supreme Court between2007 and 2021 as part of which it analysed the exercise of the reviewjurisdiction in capital cases.[2 ]It noted that, during the period covered bythe study, before the decision in Mohd. Arif, 14 review petitions weredismissed by circulation and the capital punishment was confirmed in allBof them. Out of these, 13 were re-opened in view of the judgment whichresulted in only 4 re-confirmations of the death penalty. On the otherhand, 7 judgments resulted in commutation of death sentences, 1 inacquittal and 1 case being abated due to the death of the prisoner. Inview of the above data, the impact of the oral hearing of review petitions,Cdue to the judgment in Mohd. Arif leading to a change in the outcomeof a death penalty confirmation is evident.

4. The Court in Mohd. Arif, however, was not persuaded by theargument of involving two additional judges beyond the judges who hadheard the original appeal during the hearing of the review petition. It alsoDheld that a review must be ordinarily heard by the same bench whichoriginally heard the criminal appeal. It had noted that:

39. Henceforth, in all cases in which death sentence has beenawarded by the High Court in appeals pending before the SupremeCourt, only a bench of three Hon’ble Judges will hear the same.EThis is for the reason that at least three judicially trained mindsneed to apply their minds at the final stage of the journey of aconvict on death row, given the vagaries of the sentencingprocedure outlined above. At present, we are not persuadedto have a minimum of 5 learned Judges hear all deathsentence cases. Further, […] a review is ordinarily to beFheard only by the same bench which originally heard thecriminal appeal. This is obviously for the reason that in orderthat a review succeeds, errors apparent on the record haveto be found. It is axiomatic that the same learned Judgesalleged to have committed the error be called upon now toGrectify such error. We, therefore, turn down [the…] pleathat two additional Judges be added at the review stage indeath sentence cases.

2Exercise of Review Jurisdiction in Capital Cases in DEATH PENALTY AND THE INDIANHSUPREME COURT (2007-2021), Project 39A, National Law University Delhi (2022).

5. The data analysed by Project 39A indicates that it is not merelythe oral hearing of review petitions that has changed the outcomes. Theremay also be a correlation between the ultimate outcome changing anddifferent judges being involved as part of the review process instead ofthe same judges who had originally decided the appeal. Post Mohd.Arif, this happens when the judges who were members of the originalbench have demitted office by the time the open court review comes forhearing. The data involves the 13 review cases re-opened and re-decidedpost Mohd. Arif after an oral hearing as well as 10 fresh review caseswhich were decided post Mohd. Arif. Out of 13 post Mohd. Arif caseswhich were re-opened, we have already noted that only 4 led to re-confirmation of the award of the death penalty, while in 7 cases thesentence was commuted to life imprisonment, 1 resulted in an acquittaland 1 stood abated. Out of the 10 fresh review cases, in 7 the deathsentence was confirmed while in 3 the sentence was commuted.

6. In the cases where the sentence of death was commuted tolife imprisonment, i.e. 7 cases from the first lot of 13 re-opened reviewcases and 3 cases from the second lot of 10 fresh review cases, all ofthe benches in review were of a different composition from the benchthat decided the appeal. The 1 case which resulted in acquittal also hada different bench in review from the one in appeal. On the other hand, inthe 11 cases which re-confirmed the death sentence, 7 benches had acomposition of one or all the judges being the same as the bench thatdecided the appeal. The report notes that:

The stage of review is rendered almost superfluous for thepurpose envisaged by the majority, i.e., a further reconsiderationof a death sentence, when the same bench (as in criminal appeal)is called upon to decide the review petition. This is in factdemonstrated by the data. As predicted by Justice Chelameswar, whenheard by the same bench as the appeal, review petitions resulted in thedeath sentence being maintained. 4 out of 11 confirmation judgmentsrendered at the stage of review had the same bench. While theremaining 7 confirmation judgments in review were rendered bybenches of different composition, it is relevant to note that in 1of these judgments one judge was common to both the benchesthat decided the review and the appeal, and in yet another, twojudges were common to both benches. On the other hand, all ofthe 10 judgments that resulted in commutation at the review stage, AB

C

D

E

F

G

H

Awere rendered by benches having a different composition fromthe bench that decided the appeal. Therefore, the data suggests thata review petition filed within 30 days of the judgment rendered in appeal,decided by the same bench, will not demonstrate considerable differencesin approaches or outcome, unlike those decided by a different bench.

B

7. While the above data is not conclusive and the correlation maynot necessarily equate to causation, we find it appropriate to mention asthe present case is also one of those being re-opened and re-heard as aresult of the decision in Mohd. Arif. We clarify by way of abundantCcaution that being both a smaller bench and having not been called uponto consider the impact of different judges sitting in the review of anappeal confirming the death sentence, we are not deciding on the meritsof the proposition.

B. BackgroundD8. In view of the judgment in Mohd. Arif, the order dated 20March 2013 in the present case dismissing the review petition throughcirculation was recalled and this review petition was heard in open court.

9. The petitioner was accused of kidnapping and murdering a 7-year-old child. The petitioner is alleged to have picked up the victimEwhile he was returning from school in the school van on 27 July 2009.Prosecution witnesses testified to the petitioner having picked up thevictim on his motorbike.

10. Due to the victim’s absence, his mother attempted to find hiswhereabouts and was informed of the above sequence of events by oneFof the witnesses. Accordingly, she proceeded to register a complaint atPolice Station, Kammapuram on the same date. On the same night, shealso received a call on her mobile phone from the petitioner, demandinga ransom of Rs. 5 lakhs for the release of the victim. Further, anotherransom call was made on the succeeding day from a telephone booth.One of the witnesses is the individual who runs the booth and has testifiedGthat the petitioner made a call enquiring regarding the payment of money.

11. On 30 July 2009 the police raided the house of the petitionerand arrested him along with a co-accused who was later acquitted. Thepetitioner made confessional statements on the basis of which threemobile phone sets, two of which had SIM cards, were recovered. TheH

petitioner confessed to strangling the deceased, putting his dead body ina gunny bag and throwing it in the Meerankulam tank. The body of thedeceased was recovered from the tank on the basis of the confessionalstatement.

12. On the basis of the investigation, the petitioner was chargedunder Sections 364A, 302 and 201 of the Indian Penal Code.[3] The trialwas committed to the Court of the Sessions Judge on 30 July 2010. TheSessions Judge convicted the petitioner for the offences with which hewas charged and sentenced him to (i) death with a fine of Rs.1000 forthe offence under section 364A IPC, (ii) death with a fine of Rs.1000for the offence under section 302 IPC; and (ii) rigorous imprisonmentfor seven years and a fine of Rs.1000 for the offence under section 201IPC. The co-accused was acquitted of all the offences.

13. The petitioner’s appeal was dismissed by the High Court ofJudicature at Madras by a judgment dated 30 September 2010. TheHigh Court confirmed both the conviction and the award of the deathsentence.

14. This Court dismissed the appeal of the petitioner and confirmedthe judgment of the Madras High Court on 5 February 2013. Both theHigh Court and this Court entered into a detailed appreciation of factsbefore confirming the conviction.

C. Scope of Review Jurisdiction

15. Article 137 of the Constitution states that the Supreme Courthas the power to review any judgment pronounced by it subject toprovisions of law made by the Parliament or any rules under Article 145.The Supreme Court Rules 2013[4] have been framed under Article 145 ofthe Constitution. Order XLVII Rule 1of the 2013 Rules provides that theCourt may review its own judgment 16. or order but no application forreview will be entertained in a civil proceeding except on the groundmentioned in Order XLVII Rule 1 of the Code of Civil Procedure 1908,and in a criminal proceeding except on the ground of an error apparenton the face of the record.

17. In Mofil Khan v State of Jharkhand[5],a three judge Bench ofthis Court while discussing the scope of the power of review held that:

3 “IPC”

4 “2013 Rules”

5 2021 SCC OnLineSC 1136

A

BC

D

E

F

G

H

SUPREME COURT REPORTS

A

A2. […] Review is not rehearing of the appeal all over again and tomaintain a review petition, it has to be shown that there has beena miscarriage of justice (See: Suthendraraja v. State). An errorwhich is not self-evident and has to be detected by a process ofreasoning can hardly be said to be an error apparent on the faceof the record justifying the Court to exercise its power of reviewB(See: Kamlesh Verma v. Mayavati). An applicant cannot beallowed to reargue the appeal in an application for review on thegrounds that were urged at the time of hearing of the appeal.Even if the applicant succeeds in establishing that there may beanother view possible on the conviction or sentence of the accusedCthat is not a sufficient ground for review. This Court shall exerciseits jurisdiction to review only when a glaring omission or patentmistake has crept in the earlier decision due to judicial fallibility.There has to be an error apparent on the face of the record leadingto miscarriage of justice.

DD. Error Apparent on the Face of the Record?

D.1 Submissions of Counsel

18. We have heard the counsel for the petitioner and for the Stateof Tamil Nadu. The counsel for the petitioner has submitted that thefollowing errors are apparent on the face of the record and call for aEreview of the judgment dismissing the appeal:

a.There is no proof that the phone number through which theransom calls were allegedly made by the petitioner i.e. thenumber ending with XXX5961, belongs to the petitioner; b.That the call detail records show that the above-mentionedFnumber is registered with one individual with residence inAlathur, Palakkad whom the petitioner has no connectionwith;

c.That the 15-digit IMEI number for the cell phone, allegedlybelonging to the petitioner containing the SIM with mobileGnumber ending with XXX5961, mentioned in the seizurememo differs from the IMEI number mentioned in the calldetail record; d.There is no evidence that the number on which the ransomcall was allegedly made to PW1 (mother of the deceased),i.e.Hthe number ending with XXX847, belongs to PW1; e.PW1 has not stated that calls were made to her on 28 July2009 and the testimony of PW16, the operator of the phonebooth through which the call was made, cannot be reliedupon; and f.The certificate under Section 65B of the Indian EvidenceAct 1872[6] for the call detail records was not furnished.

19. The counsel for the State of Tamil Nadu strongly resisted thesubmissions which were urged by the Petitioner. The counsel submittedthat the above grounds do not amount to errors apparent on the face ofthe record and do not meet the standard for re-appreciating evidence bythis Court in review jurisdiction in the face of concurrent findings of theTrial Court, the High Court and this Court. The counsel also took usthrough the relevant exhibits and statements of prosecution witnesses tocounter the grounds raised by the petitioner on merits.

D.2. Analysis

20. We are in agreement with the counsel for the State of TamilNadu. The grounds which have been raised by the petitioner have alreadybeen dealt with by the courts which have arrived at concurrent findingsrecording the guilt of the petitioner. Further, the case of the prosecutionis not founded only on the alleged calls for ransom but on consistentinterlinked evidence as both the High Court and Supreme Court found intheir judgments.

21. Regardless, we consider it appropriate to deal with thecontentions of the petitioner.

22. The petitioner has alleged that the number through which theransom call was allegedly made did not belong to him. However, on thebasis of his statement of 30 July 2009, the cell phone with the SIM forthe mobile number ending with XXX5961 was seized from the petitioneralong with 2 other cell phones, the motorbike on which he had kidnappedthe victim as well as the victim’s school bag.

23. Similarly, the contention based on the difference in the IMEInumber recorded in the seizure memo and the call detail records doesnot affect the prosecution’s case for the following reason. The differencein the IMEI number recorded in the seizure memo and the call detail A

B

C

D

E

F

G

H

Arecord pertains to the last digit of the 15-digit IMEI number. Every devicehas a unique IMEI number identifying the brand owner in the model.The first 8 digits are the Type Allocation Code (TAC) digits of which theinitial 2 digits identify the reporting body and the next 6 identify the brandowner and device model allocated by the reporting body. The next 6digits are the unique serial number assigned to individual devices by theBmanufacturer.[7]

24. These 14 digits in the petitioner’s case match in both the seizurememo and the call detail record. The last digit in the IMEI number is the‘Luhn check digit’ based on a function of the other digits using analgorithm. Technically, the last digit, which is the only digit that is differentCin the seizure memo and the call detail record, can be calculated throughthe algorithm on the basis of the first 14 digits which are the same inboth the documents. As the last digit of an IMEI number is a function ofthe first 14 digits, as long as the first 14 digits are a match, it can onlylead to one unique device. Accordingly, it can be conclusively said that aDdifference in only the last digit of the IMEI number cannot imply that itrepresents the IMEI number of a separate device. Therefore, thedifference in the last digit of the IMEI number can reasonably be assumedto be a typographical error and does not raise a doubt in the prosecution’scase.

E25. The arguments regarding non-verification of PW1’s number,non-confirmation with PW1 regarding a call received on the subsequentday as claimed by PW16 have been raised at a belated stage.

26. PW8 has stated in her testimony that the petitioner called herto enquire regarding the phone number of PW1 and she told him to cutFthe phone and call again so she can retrieve the number and provide thesame, as she did on the second call. PW1 has also testified that shereceived the call for ransom at about 9:30PM. It was upon the petitioner,at the stage of cross-examination of PW1 to raise questions regardingthe number ending with XXX847 belonging to her or regarding the callalleged to have been made by the petitioner on 28 July 2009 mentionedGby PW16.

27. Finally, the petitioner has argued that the CDRs cannot berelied upon due to the lack of production of the Section 65B certificate.

7 GSMA TAC Allocation and IMEI Programming Rules for Device Brand Owners andHManufacturers, Training Guide (February 2018 v1.0).

The call detail records were verified in the testimony of the Legal Officerof Vodafone, PW11, who himself produced the documents from thecomputer. He has in his cross-examination specifically corroborated thedetails of the calls made between the petitioner and PW1 and PW8(from whom the number of PW1 was received after enquiring about itduring the call by petitioner). The call detail records of the mobile numberending with XXX5961 confirm that two calls were made to PW8 at9:22PM and 9:25PM on 27 July 2009. Immediately after this he calledon the number ending with XXX847 at 9:39PM. However, admittedlythe certificate mentioned under Section 65B of the IEA was not produced.

28. Section 65B was inserted in the IEA along with various otheramendments by the Information Technology Act 2000[8] which took intoaccount digital evidence. Section 65B provides for the admissibility ofelectronic records.

29. Section 65B of the IEA is reproduced below:

“65-B. Admissibility of electronic records.—(1)Notwithstanding anything contained in this Act, any informationcontained in an electronic record which is printed on a paper,stored, recorded or copied in optical or magnetic media producedby a computer (hereinafter referred to as “the computer output”)shall be deemed to be also a document, if the conditions mentionedin this section are satisfied in relation to the information andcomputer in question and shall be admissible in any proceedings,without further proof or production of the original, as evidence ofany contents of the original or of any fact stated therein of whichdirect evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of acomputer output shall be the following, namely—

(a) the computer output containing the information was producedby the computer during the period over which the computer wasused regularly to store or process information for the purposes ofany activities regularly carried on over that period by the personhaving lawful control over the use of the computer; (b) during the said period, information of the kind contained in theelectronic record or of the kind from which the information so AB

C

D

E

F

G

H

Acontained is derived was regularly fed into the computer in theordinary course of the said activities;

c) throughout the material part of the said period, the computerwas operating properly or, if not, then in respect of any period inwhich it was not operating properly or was out of operation duringBthat part of the period, was not such as to affect the electronicrecord or the accuracy of its contents; and (d) the information contained in the electronic record reproducesor is derived from such information fed into the computer in theordinary course of the said activities.

C

(3) Where over any period, the function of storing or processinginformation for the purposes of any activities regularly carried onover that period as mentioned in clause (a) of sub-section (2) wasregularly performed by computers, whether—

(a) by a combination of computers operating over that period; or D

(b) by different computers operating in succession over that period;or

(c) by different combinations of computers operating in successionover that period; or (d) in any other manner involving the successive operation overthat period, in whatever order, of one or more computers and oneor more combinations of computers, all the computers used forthat purpose during that period shall be treated for the purposesof this section as constituting a single computer; and referencesin this section to a computer shall be construed accordingly.

E

F

(4) In any proceedings where it is desired to give a statement inevidence by virtue of this section, a certificate doing any of thefollowing things, that is to say—

(a) identifying the electronic record containing the statement andGdescribing the manner in which it was produced; (b) giving such particulars of any device involved in the productionof that electronic record as may be appropriate for the purpose ofshowing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditionsHmentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsibleofficial position in relation to the operation of the relevant deviceor the management of the relevant activities (whichever isappropriate) shall be evidence of any matter stated in thecertificate; and for the purposes of this sub-section it shall besufficient for a matter to be stated to the best of the knowledgeand belief of the person stating it.

(5) For the purposes of this section—

(a) information shall be taken to be supplied to a computer if it issupplied thereto in any appropriate form and whether it is sosupplied directly or (with or without human intervention) by meansof any appropriate equipment; (b) whether in the course of activities carried on by any official,information is supplied with a view to its being stored or processedfor the purposes of those activities by a computer operatedotherwise than in the course of those activities, that information,if duly supplied to that computer, shall be taken to be supplied to itin the course of those activities;

(c) a computer output shall be taken to have been produced by acomputer whether it was produced by it directly or (with or withouthuman intervention) by means of any appropriate equipment.

Explanation—For the purposes of this section any reference toinformation being derived from other information shall be areference to its being derived therefrom by calculation, comparisonor any other process.”

30. The petitioner has relied upon the judgment of this court inArjun Panditrao Khotkar v Kailash Kushanrao Gorantyal[9] whichreiterated the dictum in the decision in Anvar P.V. v P.K. Basheer[10]requiring mandatory compliance with Section 65B of the IEA.

31. One of the earliest decisions on the provision was of a twojudge bench of this Court in State (NCT of Delhi) v Navjot Sandhu[11]where the Court held that Section 65B was only one of the provisionsthrough which secondary evidence by way of electronic record could be 9 2020 (7) SCC 110 2014 (10) SCC 47311 2005 (11) SCC 600

AB

C

D

E

F

G

H

Aadmitted and that there was no bar on admitting evidence through otherprovisions. The Court noted that:

150. According to Section 63, “secondary evidence” means andincludes, among other things, ‘copies made from the original bymechanical processes which in themselves insure the accuracyBof the copy, and copies compared with such copies’. Section 65enables secondary evidence of the contents of a document to beadduced if the original is of such a nature as not to be easilymovable. It is not in dispute that the information contained in thecall records is stored in huge servers which cannot be easily movedand produced in the court. That is what the High Court has alsoCobserved at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible officialof the service-providing company can be led in evidence througha witness who can identify the signatures of the certifying officeror otherwise speak of the facts based on his personal knowledge.DIrrespective of the compliance with the requirements ofSection 65-B, which is a provision dealing with admissibilityof electronic records, there is no bar to adducing secondaryevidence under the other provisions of the Evidence Act,namely, Sections 63 and 65. It may be that the certificatecontaining the details in sub-section (4) of Section 65-B isEnot filed in the instant case, but that does not mean thatsecondary evidence cannot be given even if the law permitssuch evidence to be given in the circumstances mentionedin the relevant provisions, namely, Sections 63 and 65.

F

32. The principle which was enunciated in Navjot Sandhu wasoverruled by a three judge bench of this Court in Anvar P.V. where itwas held that:

22. The evidence relating to electronic record, as notedGhereinbefore, being a special provision, the general law onsecondary evidence under Section 63 read with Section 65 of theEvidence Act shall yield to the same. Generalia specialibus nonderogant, special law will always prevail over the general law. Itappears, the court omitted to take note of Sections 59 and 65-Adealing with the admissibility of electronic record. Sections 63

H

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

and 65 have no application in the case of secondary evidenceby way of electronic record; the same is wholly governedby Sections 65-A and 65-B. To that extent, the statementof law on admissibility of secondary evidence pertaining toelectronic record, as stated by this Court in Navjot Sandhucase, does not lay down the correct legal position. Itrequires to be overruled and we do so. An electronic recordby way of secondary evidence shall not be admitted inevidence unless the requirements under Section 65-B aresatisfied. Thus, in the case of CD, VCD, chip, etc., the sameshall be accompanied by the certificate in terms of Section 65-Bobtained at the time of taking the document, without which, thesecondary evidence pertaining to that electronic record, isinadmissible.

33. Accordingly, in terms of the decision in Anvar P.V. for admittingany electronic evidence by way of secondary evidence, such as CDRs,the requirements of Section 65B would necessarily need to be satisfiedand no other route under the IEA may be adopted for the admission ofsuch evidence.

34. However, a three judge bench in Tomaso Bruno v State ofUttar Pradesh[12] took a different approach and observed that secondaryevidence of the contents of a document can also be led under Section 65of the Evidence Act without referring to the decision in Anvar P.V. Itheld that:

24. With the advancement of information technology, scientifictemper in the individual and at the institutional level is to pervadethe methods of investigation. With the increasing impact oftechnology in everyday life and as a result, the production ofelectronic evidence in cases has become relevant to establish theguilt of the Accused or the liability of the Defendant. Electronicdocuments stricto sensu are admitted as material evidence. Withthe amendment to the Evidence Act in 2000, Sections 65-A and65-B were introduced into Chapter V relating to documentaryevidence. Section 65-A provides that contents of electronic recordsmay be admitted as evidence if the criteria provided in Section AB

C

D

EF

G

H

SUPREME COURT REPORTS

A65-B is complied with. The computer generated electronic recordsin evidence are admissible at a trial if proved in the mannerspecified by Section 65-B of the Evidence Act. Sub-section (1) ofSection 65-B makes admissible as a document, paper printout ofelectronic records stored in optical or magnetic media producedby a computer, subject to the fulfilment of the conditions specifiedBin Sub-section (2) of Section 65-B. Secondary evidence ofcontents of document can also be led Under Section 65 ofthe Evidence Act. PW 13 stated that he saw the full videorecording of the fateful night in the CCTV camera, but he has notrecorded the same in the case diary as nothing substantial to beCadduced as evidence was present in it.

35. A two judge bench in Shafi Mohammed v State of HimachalPradesh[13]strayed even farther away from Anvar P.V. and held that theSections 65A and 65B cannot be held to be a complete code on theDsubject. It held that:

24. We may, however, also refer to the judgment of this Courtin Anvar P.V. v. P.K. Basheer, delivered by a three-Judge Bench.In the said judgment in para 24 it was observed that electronicevidence by way of primary evidence was covered by Section 62Eof the Evidence Act to which procedure of Section 65-B of theEvidence Act was not admissible. However, for the secondaryevidence, procedure of Section 65-B of the Evidence Act wasrequired to be followed and a contrary view taken in NavjotSandhu that secondary evidence of electronic record could beFcovered under Sections 63 and 65 of the Evidence Act, was notcorrect. There are, however, observations in para 14 to the effectthat electronic record can be proved only as per Section 65-B ofthe Evidence Act.

25. Though in view of the three-Judge Bench judgments in TomasoGBruno and Ram Singh, it can be safely held that electronicevidence is admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by way of a clarificationand are procedural provisions. If the electronic evidenceis authentic and relevant the same can certainly be admitted subject to the court being satisfied about its authenticityand procedure for its admissibility may depend on factsituation such as whether the person producing suchevidence is in a position to furnish certificate under Section65-B(4).

26. Sections 65-A and 65-B of the Evidence Act, 1872 cannotbe held to be a complete code on the subject. In Anvar P.V.,this Court in para 24 clarified that primary evidence of electronicrecord was not covered under Sections 65-A and 65-B of theEvidence Act. Primary evidence is the document produced beforethe court and the expression “document” is defined in Section 3of the Evidence Act to mean any matter expressed or describedupon any substance by means of letters, figures or marks, or bymore than one of those means, intended to be used, or which maybe used, for the purpose of recording that matter.

36. The Court in Shafi Mohammed even diluted the requirementof the Section 65B certificate. This led to contradictory positions in thesecases vis-à-vis the law laid down by Anvar P.V. which was settled by areference to a three judge bench of this Court in Arjun PanditraoKhotkar. The Court reiterated Anvar P.V. and held Tomaso Bruno perincuriam and overruled Shafi Mohammed. It held that:

73. The reference is thus answered by stating that:

73.1. Anvar P.V., as clarified by us hereinabove, is the lawdeclared by this Court on Section 65-B of the EvidenceAct. The judgment in Tomaso Bruno, being per incuriam,does not lay down the law correctly. Also, the judgmentin Shafhi Mohammad and the judgment dated 3-4-2018reported as Shafhi Mohd. v. State of H.P., do not lay downthe law correctly and are therefore overruled.

73.2. The clarification referred to above is that the requiredcertificate under Section 65-B(4) is unnecessary if the originaldocument itself is produced. This can be done by the owner of alaptop computer, computer tablet or even a mobile phone, bystepping into the witness box and proving that the device concerned,on which the original information is first stored, is owned and/oroperated by him. In cases where the “computer” happens to A

BC

D

E

F

GH

Abe a part of a “computer system” or “computer network”and it becomes impossible to physically bring such systemor network to the court, then the only means of providinginformation contained in such electronic record can be inaccordance with Section 65-B(1), together with the requisitecertificate under Section 65-B(4). The last sentence in paraB24 in Anvar P.V. which reads as “… if an electronic record assuch is used as primary evidence under Section 62 of theEvidence Act …” is thus clarified; it is to be read without thewords “under Section 62 of the Evidence Act,…”. With thisclarification, the law stated in para 24 of Anvar P.V. does not needCto be revisited.

37. Therefore, the law is now settled: a Section 65B certificate ismandatory in terms of this Court’s judgment in Anvar P.V. as confirmedin Arjun Panditrao Khotkar.D

38. However, Anvar P.V. was decided on 18 September 2014. Tillthen, the interpretation of law in Navjot Sandhu, which was decided on4 August 2005 prevailed. In the instant case, the Trial Court pronouncedits judgment on 30 July 2010. Two months later, on 30 September 2010,the High Court affirmed the decision of the Trial Court to award theEdeath sentence. This Court dismissed the appeal and confirmed the deathsentence on 5 February 2013. Even the review petition was dismissed inchambers on 20 March 2013 before being re-opened in the instantproceeding in view of the Constitution Bench’s judgment in Mohd. Arifalias Ashfaq.F39. Accordingly, none of the courts had the benefit of the law laiddown vis-à-vis the mandatory requirement of the Section 65B certificatein Anvar P.V.. The courts as well as the investigative agency proceededin accordance with the law that was then prevailing.

40. In Sonu alias Amar v State of Haryana[14]this courtconsidered the impact of the retrospective application of Anvar P.V.Gupon trials that had already been held during the period when NavjotSandhu held the field and observed that:

37. The interpretation of Section 65-B(4) by this Court by ajudgment dated 4-8-2005 in Navjot Sandhu held the field till it H14 2017 (8) SCC 570

was overruled on 18-9-2014 in Anvar case. All the criminal courtsin this country are bound to follow the law as interpreted by thisCourt. Because of the interpretation of Section 65-B in NavjotSandhu, there was no necessity of a certificate for provingelectronic records. A large number of trials have been held duringthe period between 4-8-2005 and 18-9-2014. Electronic recordswithout a certificate might have been adduced in evidence. Thereis no doubt that the judgment of this Court in Anvar case has tobe retrospective in operation unless the judicial tool of “prospectiveoverruling” is applied. However, retrospective application of thejudgment is not in the interest of administration of justice as itwould necessitate the reopening of a large number of criminalcases. Criminal cases decided on the basis of electronic recordsadduced in evidence without certification have to be revisited asand when objections are taken by the accused at the appellatestage. Attempts will be made to reopen cases which have becomefinal.

41. However, it did not decide upon this issue being a two judgebench and kept the question of law open for it to be decided in anappropriate case. In Arjun Panditrao Khotkar this court did not considerthe question raised in Sonu.

42. On the other hand, Sonu did deal with the question of whether,at the appellate stage, the reliance upon CDRs can be reconsidered ifthe objection was not raised during the trial. As the counsel for the Stateof Tamil Nadu has argued, the defense as well did not raise the plea ofthe CDRs being inadmissible in the absence of a Section 65B certificateat the trial or at the appellate stage. On this issue, this Court in Sonunoted that:

32. It is nobody’s case that CDRs which are a form of electronicrecord are not inherently admissible in evidence. The objection isthat they were marked before the trial court without a certificateas required by Section 65-B(4). It is clear from the judgmentsreferred to supra that an objection relating to the mode or methodof proof has to be raised at the time of marking of the documentas an exhibit and not later. The crucial test, as affirmed by thisCourt, is whether the defect could have been cured at the stageof marking the document. Applying this test to the present case, ifan objection was taken to the CDRs being marked without a AB

C

D

EF

G

H

SUPREME COURT REPORTS

Acertificate, the Court could have given the prosecution anopportunity to rectify the deficiency. It is also clear from the abovejudgments that objections regarding admissibility of documentswhich are per se inadmissible can be taken even at the appellatestage. Admissibility of a document which is inherently inadmissibleis an issue which can be taken up at the appellate stage becauseBit is a fundamental issue. The mode or method of proof isprocedural and objections, if not taken at the trial, cannotbe permitted at the appellate stage. If the objections to themode of proof are permitted to be taken at the appellatestage by a party, the other side does not have an opportunityCof rectifying the deficiencies. The learned Senior Counsel forthe State referred to statements under Section 161 CrPC, 1973as an example of documents falling under the said category ofinherently inadmissible evidence. CDRs do not fall in the saidcategory of documents. We are satisfied that an objection thatCDRs are unreliable due to violation of the procedureDprescribed in Section 65-B(4) cannot be permitted to beraised at this stage as the objection relates to the mode ormethod of proof.

E43. While the Court in Arjun Panditrao Khotkar did not directlydeal with the issue of allowing objections against CDRs, due to a violationof the procedure under Section 65B, being raised at a belated stage, itkept it open for trial courts, in exceptional cases, to allow the prosecutionto provide such certificate at a later stage.It held that:

F54. Therefore, in terms of general procedure, the prosecution isobligated to supply all documents upon which reliance may beplaced to an Accused before commencement of the trial. Thus,the exercise of power by the courts in criminal trials in permittingevidence to be filed at a later stage should not result in serious orirreversible prejudice to the Accused. A balancing exercise inGrespect of the rights of parties has to be carried out by the court,in examining any application by the prosecution Under Sections91 or 311 of the Code of Criminal Procedure or Section 165 of theEvidence Act. Depending on the facts of each case, and theCourt exercising discretion after seeing that the AccusedHis not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce suchcertificate at a later point in time. If it is the Accused whodesires to produce the requisite certificate as part of his defence,this again will depend upon the justice of the case-discretion to beexercised by the Court in accordance with law.

44. Therefore, we are inclined to agree with the ratio in Sonu bynot allowing the objection which is raised at a belated stage that theCDRs are inadmissible in the absence of a Section 65B certificate,especially in cases, where the trial has been completed before 18September 2014, i.e. before the pronouncement of the decision in AnvarP.V.. However, we are also mindful of the fact that the instant matterinvolves the death sentence having been awarded.

45. Most recently, in Mohd. Arif v State (NCT of Delhi)[15], athree judge Bench of this Court while deciding a review petition in acase involving the review of a death penalty faced a similar fact situationwhere the decisions of the trial court and appellate courts were renderedduring the period when Navjot Sandhu was the prevailing law. In thatcase as well, the Court took note of it being a matter involving a deathsentence and held that:

“24. Navjot Sandhu was decided on 4.8.2005 i.e., before thejudgment was rendered by the Trial Court in the instant matter.The subsequent judgments of the High Court and this Court werepassed on 13.9.2007 and 10.8.2011 respectively affirming theaward of death sentence. These two judgments were deliveredprior to the decision of this Court in Anvar P.V. which was givenon 18.9.2014. The judgments by the trial Court, High Court andthis Court were thus well before the decision in Anvar P.V. andwere essentially in the backdrop of law laid down in NavjotSandhu. If we go by the principle accepted in paragraph 32of the decision in Sonu alias Amar, the matter may stand ona completely different footing. It is for this reason thatreliance has been placed on certain decisions of this Courtto submit that the matter need not be reopened on issueswhich were dealt with in accordance with the law thenprevailing. However, since the instant matter pertains to A

B

C

D

EF

G

H

A

award of death sentence, this review petition must beconsidered in light of the decisions made by this Courtin Anvar P.V. and Arjun Panditrao.

25. Consequently, we must eschew, for the presentpurposes, the electronic evidence in the form of CDRs whichwas without any appropriate certificate under Section 65-B(4) of the Evidence Act.”

B

46. Accordingly, we too deem it appropriate to consider this reviewpetition by eschewing the electronic evidence in the form of CDRs asCthey are without the appropriate certificate under Section 65B even ifthe law, as it was during the time the trial in the present case wasconducted, allowed for such electronic evidence to be admitted.

47. Accordingly, we analyse the evidence considered by the HighCourt and this Court in appeal without relying upon the CDRs. The HighDCourt took note of the following evidence in its judgment before arrivingat the conclusion of the guilt of the petitioner and confirming his conviction:

18. According to P.W.1 the mother of the deceased child Suresh,the child used to leave for School every day at about 8.00 A.M.and come back at about 4.30 P.M., and on the date of occurrence,Ei.e., 27.7.2009, the child as usual went to the school. From theevidence of P.W.6, the Correspondent of Sakthi MatriculationSchool, Vridhachalam, and also the attendance register, Ex.P3, itwould be quite evident that the child attended the school that dayand was returning from the school in the van meant for thatFpurpose. According to P.W. 2, she is also studying along with thedeceased Suresh, and on the day, both were returning from theschool in the van and got down at Karkudal, and at that time A-1who was standing under a Neem tree along with the motorbike,came to them and told the child Suresh that both his mother andgrandmother were not doing well and on that false reason, tookGthe child from the place. The evidence of P.W.2 was muchcommented by the learned Counsel for the appellant. But, thosecontentions cannot be agreed. The learned trial Judge hascategorically pointed out before recording the evidence that thematurity of the mind of the child, P.W.2, to give evidence wasactually tested and found satisfactory, and then he recorded the H

evidence. The child at the time of occurrence, was 10 years old,and at the time of giving evidence, it was aged 11.

[…]

19. It would quite clear that if the evidence of a child witness iscogent and convincing, the Court can accept that evidence. In theinstant case, the evidence of P.W.2 is narrated above. Accordingto P.W.1, immediately when the child did not return by 4.30 P.M.,she entertained suspicion and went in search of her son, and sheimmediately met P.W.2, the other child.P.W.2 informed P.W.1 thatthe child Suresh was taken by a person in a motorbike telling theabove reasons. Now, at this juncture, in order to accept theevidence of P.W.2, the earliest version as found in Ex.P1, in theconsidered opinion of the Court, would suffice. A perusal of Ex.P1,the complaint, would clearly indicate that after the child did notreturn, P.W.1 met P.W.2 Kamali, the other child, and she wasinformed by P.W.2 that the child was taken by a person in amotorbike with the above false reasons. Thus the earliest versionfound therein, would clearly indicate that P.W.2 has come with atrue version. That apart, the child was able to identify the motorbike,marked as M.O.5, before the Court. Despite cross-examinationin full, the evidence of P.W.2 the child remained unshaken.Following the ratio laid down in the above decision by the ApexCourt, this Court is of the considered opinion that the evidence ofP.W.2 has got to be accepted.

20. Added further, P.W.2 at the time of the identification parade,was able to identify A-1 properly as could be seen from theidentification parade proceedings Ex.P4. Apart from that, theevidence of P.W.2 stood fully corroborated by the evidence ofP.W.3. P.W.3 was a native of the same village, and all these personswere already known to him. P.W.3 was sufficiently matured andaged 41. According to him, he was actually coming on the way,and when the school van was stopped, P.W.2 and the deceasedSuresh got down, and the child was called by A-1, and on somereason, the child was taken in the bike which was noticed by him.P.W.3 also took part in the identification parade and has alsoidentified A-1 properly. Now, the comment made by the learnedCounsel for the appellant that as regards the identification parade,there were infirmities noticed cannot be countenanced in law. As A

B

C

D

E

F

G

H

A

A

B

C

D

E

F

G

H

A

Afar as the comment made that there was no requisition made bythe Investigating Officer for the test identification parade or thesignature of A-1 was not obtained is concerned, the same cannotbe accepted for the reason that insofar as the identification paradeconducted by P.W.10, it was pursuant to the orders of the ChiefJudicial Magistrate only on the requisition made by the InvestigatingBOfficer; otherwise, it could not have taken place at all. The conductof the identification parade in order to identify A-1 in which P.Ws.2and 3 have participated, was never denied by the appellant beforethe trial Court. Under the circumstances, this Court is of theconsidered opinion that the test identification parade was properlyCdone, and the trial Judge was perfectly correct in accepting theevidence adduced by the prosecution in that regard.

21. Apart from the above, it is pertinent to point out the legalposition in respect of the identification parade. It is settledproposition of law that the identification parade is only aDcorroborative piece of evidence and the identification done in theCourt, is a substantive piece of evidence. The Court must lookinto whether at the time when the witnesses saw the accused inthe company of the deceased, such a thing would have caused adent in their memory. In the instant case, the child was only 7years old, and both the child and P.W.2 Kamali who was comingEalong with the child, got down together, and the appellant/A-1came there and took the child on the flimsy reason. In such asituation, naturally the same would have caused a dent in thememory of P.W.2, and and it would not fail ordinarily, and equallyso the memory of P.W.3, a man aged about 41. No doubt, it wouldFhave caused a dent in their memory. Therefore, the trial Judgewas perfectly correct in accepting the evidence of P.Ws.2 and 3.

48. From the above, it is clear that two witnesses, PW2 and PW3,saw the petitioner taking away the victim on his motorbike after he gotdown from the school bus while returning. PW2 and PW3 also identifiedthe petitioner upon his arrest at the time of the test identification paradeGwhich was found to have been properly conducted. Furthermore, bothof the witnesses also provided unimpeachable evidence in their respectivecross-examinations before the trial court. The trial court also followedthe proper procedure in taking the testimony of PW2, a child witness, byrecording the maturity of the mind of the child, who even identified theHmotorbike before the Court.

49. The aforementioned evidence shows that the victim was lastseen with the petitioner. In the appeal before this Court, the petitioner’scounsel seems to have acknowledged that there was enough evidenceto establish kidnapping, in view of the following observations:

21. We have considered the first contention advanced by thelearned counsel for the appellant, on the basis of the contentionnoticed in the foregoing paragraph. In the veiled submissionadvanced in the hands of the learned counsel for theappellant, we find an implied acknowledgement, namely, thatlearned counsel acknowledges, that the prosecution hadplaced sufficient material on the record of the case tosubstantiate the factum of kidnapping of the deceasedSuresh, at the hands of the accused-appellant. Be that as itmay, without drawing any such inference, we would still endeavourto determine, whether the prosecution had been successful inestablishing the factum of kidnapping of the deceased Suresh, atthe hands of the accused-appellant.

50. This Court in the course of the decision in appeal took note ofthe evidence discussed above and held that there was sufficient evidenceto hold the petitioner guilty of murder as well:

“27. Since in the facts and circumstances of this case, it has beenduly established, that Suresh had been kidnapped by the accused-appellant; the accused-appellant has not been able to produceany material on the record of this case to show the release ofSuresh from his custody. Section 106 of the Indian Evidence Act,1872 places the onus on him. In the absence of any such materialproduced by the accused-appellant, it has to be accepted, that thecustody of Suresh had remained with the accused-appellant, tillhe was murdered. The motive/reason for the accused-appellant,for taking the extreme step was, that ransom as demanded byhim, had not been paid. We are therefore, satisfied, that in thefacts and circumstances of the present case, there is sufficientevidence on the record of this case, on the basis whereof eventhe factum of murder of Suresh at the hands of the accusedappellant stands established.

51. Furthermore, as this Court noted, material objects wererecovered on the basis of the petitioner’s statement:

A

BC

D

EF

G

H

A

A28. We may now refer to some further material on the record ofthe case, to substantiate our aforesaid conclusion. In this behalf, itwould be relevant to mention, that when the accused-appellantwas detained on 30.7.2009, he had made a confessional statementin the presence of Kasinathan (PW13) stating, that he hadstrangulated Suresh to death, whereupon his body was put into aBgunny bag and thrown into the Meerankulam tank. It wasthereafter, on the pointing out of the accused-appellant, that thebody of Suresh was recovered from the Meerankulam tank. Itwas found in a gunny bag, as stated by the accused-appellant. Dr.Kathirvel (PW12) concluded after holding the post mortemCexamination of the dead body of Suresh, that Suresh had died onaccount of suffocation, prior to his having been drowned. Theinstant evidence clearly nails the accused-appellant as theperpetrator of the murder of Suresh. Moreover, the statement ofKasinathan (PW13) further reveals that the school bag, booksand slate of Suresh were recovered from the residence of theDaccused-appellant. These articles were confirmed by Maheshwari(PW1) as belonging to Suresh. In view of the factual and legalposition dealt with hereinabove, we have no doubt in our mind,that the prosecution had produced sufficient material to establishnot only the kidnapping of Suresh, but also his murder at the handsEof the accused-appellant.

52. The evidence in the form of CDRs was merely to corroboratethe evidence that had been given through the depositions of PW1 andPW8. Both of their testimonies stand corroborated not only through theCDRs but also through the recovery of the mobile phone on the basis ofFthe confessional statement of the petitioner. The High Court discussedthis evidence in the following para:

[…] At this juncture, P.W.13 has categorically spoken to the factthat at the time of arrest, A-1 came forward to give a confessionalstatement voluntarily, and the same was recorded by theInvestigator. The admissible part is marked as Ex.P9 pursuant towhich he produced three cell phones out of which it was onewhich contained the number through which he made two phonecalls to P.W.8 at about 9.22 P.M. and 9.25 P.M. respectively on27.7.2010, and also at about 9.39 P.M. to P.W.1 making a demandfor ransom. At this juncture, the contentions put forth by the learned G

H

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Counsel as to whether one Shankar who made the calls at 9.22and 9.25 P.M., was alive or a fictitious person, and the cellphonerecovered from A-1, did not belong to him even as per thedocumentary evidence have got to be rejected since they do notcarry merit. The cellphone from which all the three calls weremade namely two calls to P.W.8 at about 9.22 and 9.25 P.M. inthe name of Shankar and one call at 9.39 P.M. by A-1 to P.W.1,has been recovered, and the particulars of those calls have beenrecorded in the cellphone, and it was actually kept by P.W.8 duringthe relevant time and also A-1 during the relevant time. Thus theprosecution has brought to the notice of the Court that in Ex.P5,the calls were actually found for 71 seconds at 9.22 P.M. and 43seconds at 9.25 P.M. are found in Ex.P5, and another call whichwas made is also found therein which was from M.O.4 cellphonewhich was recovered from the appellant/A-1. Out of these threecell phones one cell phone was with the SIM card and the othertwo cell phones without SIM card. Now the documentary evidenceproduced by the prosecution would go to show that three callswere made namely two calls to P.W.8 at 9.22 and 9.25 P.M.respectively and after ascertaining the number of P.W.1, the thirdcall was made to P.W.1. All the documentary evidence were placedbefore the trial Court. Thus it would be quite clear that the evidenceof P.W.8 that the appellant/A-1 wanted to know the number ofP.W.1, and then he made a call to P.W.8 and came to know aboutthe number, and thereafter, he made a call at about 9.39 P.M. toP.W.1 as could be found in the evidence of P.W.1.

Even if Ex. P5, being the CDR, is not relied upon by this Court inthe above paragraph, the case of the prosecution is not weakenedas it merely corroborates the documentary evidence and witnesstestimonies that remain unblemished regardless. From the abovediscussion, it is clear that there is no reason to doubt the guilt ofthe petitioner.

53. Therefore, even though none of the grounds raised by thepetitioner amount to errors apparent on the face of the record, in view ofthe above analysis, it can also be conclusively said that all the groundson merits fail to raise any reasonable doubt in the prosecution’s case.

54. Accordingly, we see no reason in the review jurisdiction tointerfere with the concurrent findings of the Trial Court, High Court and A

B

C

D

E

F

G

H

Athis Court vis-à-vis the guilt of the petitioner for kidnapping and murderingthe victim.

55. The counsel for the petitioner has also pressed upon this Courtto reconsider the quantum of the sentence in terms of the capitalpunishment which has been ordered by the Trial Court and confirmed inBappeal in judgment of the High Court and this Court.

E. Sentencing & Mitigation

56. The counsel for the petitioner argued at length that the deathsentence was passed without a proper mitigation exercise regarding thecircumstances of the petitioner.

CE.1. Lingering Doubt Theory

57. The counsel for the petitioner submitted that the sentence ofdeath cannot be imposed in such cases where the conviction is based oncircumstantial evidence as a ‘lingering doubt’ regarding the guilt of theaccused persists.

D58. However, in Shatrughna Baban Meshram v State ofMaharashtra[16], a three judge Bench of this Court has ruled out thetheory of ‘lingering doubt’/ ‘residual doubt’. The Court held:

77. When it comes to cases based on circumstantial evidence inour jurisprudence, the standard that is adopted in terms of law laiddown by this Court as noticed in Sharad Birdhichand Sarda andEsubsequent decisions is that the circumstances must not only beindividually proved or established, but they must form a consistentchain, so conclusive as to rule out the possibility of any otherhypothesis except the guilt of the accused. On the strength ofthese principles, the burden in such cases is already of a greaterFmagnitude. Once that burden is discharged, it is implicit that anyother hypothesis or the innocence of the accused, already standsruled out when the matter is taken up at the stage of sentenceafter returning the finding of guilt. So, theoretically the conceptor theory of “residual doubt” does not have any place in acase based on circumstantial evidence. As a matter of fact,Gthe theory of residual doubt was never accepted by the USSupreme Court as discussed earlier.

78. However, as summed up in Kalu Khan, while dealing withcases based on circumstantial evidence, for imposition of a death sentence, higher or stricter standard must be insisted upon. Theapproach to be adopted in matters concerning capital punishment,therefore ought to be in conformity with the principles culled outin para 50 hereinabove and the instant matter must therefore beconsidered in the light of those principles.

59. Accordingly, the argument of residual or lingering doubt doesnot come to the rescue of the petitioner. Rather, in the course of theappellate decision in the instant case, the standard laid out in SharadBirdhichand Sarda and subsequent cases was brought to the notice ofthis Court and it was after analysing the facts in reference to theseprinciples that the Court upheld the guilt of the petitioner. This courtnoted that:

24. Based on the evidence noticed in the three precedingparagraphs, there can be no doubt whatsoever, that the accusedappellant had been identified through cogent evidence as the personwho had taken away Suresh when he disembarked from schoolvan on 27.7.2009. The. factum of kidnapping of Suresh by theaccused-appellant, therefore, stands duly established.

[…]

27. […] We are therefore, satisfied, that in the facts andcircumstances of the present case, there is sufficient evidence onthe record of this case, on the basis whereof even the factum ofmurder of Suresh at the hands of the accused-appellant standsestablished.

60. This Court has already applied the relevant standard to confirmthe guilt of the petitioner in the appeal in a case which is based oncircumstantial evidence and it will not be appropriate for this Court toonce again venture into an assessment of the evidence in the reviewjurisdiction in view of its limited scope.

E.2. Sentencing & Mitigation in the Trial Court and theAppellate Courts

61. Counsel for the petitioner argued that even if the petitioner’sguilt was affirmed, the trial court and appellate courts failed toappropriately consider relevant aggravating and mitigating circumstancesincluding the possibility of reformation of the petitioner while deciding A

B

C

D

E

F

G

H

Aupon the sentence. Counsel urged that the petitioner should not havebeen awarded the death sentence and it ought to be commuted in viewof the failure of the courts to conduct an appropriate mitigation exercise.

62. In a line of precedent of this Court, there has been a discussionon whether a separate hearing on the issue of sentence is mandatoryBafter recording the conviction of an accused for an offence punishableby death. Section 235 of the Code of Criminal Procedure 1973[17] statesthus:

235. Judgment of acquittal or conviction.—

(1) After hearing arguments and points of law (if any), the JudgeCshall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceedsin accordance with the provisions of Section 360, hear the accusedon the question of sentence, and then pass sentence on himaccording to law.D

63. In Santa Singh v State of Punjab[18], a two judge Bench ofthis Court highlighted the requirement of having a separate sentencinghearing in view of Section 235(2) of the CrPC and noted that the stageof sentencing was as important a stage in the process of administeringcriminal justice as the adjudication of guilt.E64. The judgment of the majority in the Constitution Bench decisionin Bachan Singh v State of Punjab[19]reiterated the importance of asentencing hearing. The Court noted that:

151. Section 354(3) of the CrPC, 1973, marks a significant shift inthe legislative policy underlying the Code of 1898, as in forceFimmediately before April 1, 1974, according to which both thealternative sentences of death or imprisonment for life providedfor murder and for certain other capital offences under the PenalCode, were normal sentences. Now according to this changedlegislative policy which is patent on the face of Section 354(3),Gthe normal punishment for murder and six other capital offencesunder the Penal Code, is imprisonment for life (or imprisonmentfor a term of years) and death penalty is an exception.

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

[…]

152. In the context, we may also notice Section 235(2) of theCode of 1973, because it makes not only explicit, what accordingto the decision in Jagmohan’s case was implicit in the scheme ofthe Code, but also bifurcates the trial by providing for twohearings, one at the pre-conviction stage and another atthe pre-sentence stage.

[…]

163. […] Now, Section 235(2) provides for a bifurcated trialand specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on recordmaterial or evidence, which may not be strictly relevant toor connected with the particular crime under inquiry, butnevertheless, have, consistently with the policy underlinedin Section 354(3) a bearing on the choice of sentence. The presentlegislative policy discernible from Section 235(2) read with Section354(3) is that in fixing the degree of punishment or making thechoice of sentence for various offences, including one underSection 302, Penal Code, the Court should not confine itsconsideration “principally” or merely to the circumstancesconnected with particular crime, but also give dueconsideration to the circumstances of the criminal.

65. This requirement of a separate hearing was reiterated inMuniappan v State of Tamil Nadu[20]where the Court noted theimportance of complying with the provision for a separate hearing onsentencing not merely as a formality but in spirit and substance by makinga genuine effort to enquire into information that may have a bearing onthe question of sentence.

66. In Allauddin Mian v State of Bihar[21],a two judge Bench ofthis Court held that a sentencing hearing is required to satisfy the rulesof natural justice; that it is mandatory and is not a mere formality. TheCourt noted:

10. …The requirement of hearing the accused is intendedto satisfy the rule of natural justice. It is a fundamentalrequirement of fair play that the accused who was hitherto

20 1981 (3) SCC 1121 1989 (3) SCC 5

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

concentrating on the prosecution evidence on the question of guiltshould, on being found guilty, be asked if he has anything to say orany evidence to tender on the question of sentence. This is allthe more necessary since the courts are generally requiredto make the choice from a wide range of discretion in thematter of sentencing. To assist the court in determiningthe correct sentence to be imposed the legislatureintroduced sub-section (2) to Section 235. The saidprovision therefore satisfies a dual purpose; it satisfies therule of natural justice by according to the accused anopportunity of being heard on the question of sentence andat the same time helps the court to choose the sentence tobe awarded. Since the provision is intended to give theaccused an opportunity to place before the court all therelevant material having a bearing on the question ofsentence there can be no doubt that the provision is salutaryand must be strictly followed. It is clearly mandatory andshould not be treated as a mere formality.

[…]

In a case of life or death as stated earlier, the presiding officermust show a high degree of concern for the statutory right of theaccused and should not treat it as a mere formality to be crossedbefore making the choice of sentence. If the choice is made, as inthis case, without giving the accused an effective and realopportunity to place his antecedents, social and economicbackground, mitigating and extenuating circumstances, etc., beforethe court, the court’s decision on the sentence would be vulnerable.We need hardly mention that in many cases a sentencingdecision has far more serious consequences on the offenderand his family members than in the case of a purelyadministrative decision; a fortiori, therefore, the principleof fair play must apply with greater vigour in the case of theformer than the latter. An administrative decision havingcivil consequences, if taken without giving a hearing isgenerally struck down as violative of the rule of naturaljustice. Likewise a sentencing decision taken withoutfollowing the requirements of subsection (2) of Section 235of the Code in letter and spirit would also meet a similarfate and may have to be replaced by an appropriate order.

The sentencing court must approach the question seriously andmust endeavour to see that all the relevant facts and circumstancesbearing on the question of sentence are brought on record. Onlyafter giving due weight to the mitigating as well as the aggravatingcircumstances placed before it, it must pronounce the sentence.We think as a general rule the trial courts should afterrecording the conviction adjourn the matter to a future dateand call upon both the prosecution as well as the defenceto place the relevant material bearing on the question ofsentence before it and thereafter pronounce the sentenceto be imposed on the offender.

67. The importance of a separate sentencing hearing being affordedto the accused after recording a conviction was reiterated in Anguswamyv State of Tamil Nadu[22], Malkiat Singh v State of Punjab[23]andDattaraya v State of Maharashtra[24].

68. On the other hand, there have also been judgments of thisCourt where it was held that while the court may adjourn for a separatehearing, same-day sentencing did not violate the provisions of Section235(2) of the CrPC and did not in itself vitiate the sentence. This reasoningwas adopted in the judgments of this Court in Dagdu v State ofMaharashtra[25], Tarlok Singh v State of Punjab[26]and RamdeoChauhan v State of Assam[27]

69. In Suo Motu W.P. (Crl.) No. 1/2022 titled In re: FramingGuidelines Regarding Potential Mitigating Circumstances to beConsidered while Imposing Death Sentences, this Court took note ofthe difference in approach in the interpretation of Section 235(2) of CrPCand referred the question for consideration of a larger bench. While ittook note of the conflict on what amounted to ‘sufficient time’ at the trialcourt stage to allow for a separate and effective sentencing hearing, itnoted that all the decisions also had the following common ground:

27. The common thread that runs through all these decisions isthe express acknowledgment that meaningful, real and 22 1989 (3) SCC 3323 1991 (4) SCC 341

24 2020 (14) SCC 290

25 1977 (3) SCC 68

26 1977 (3) SCC 21827 2001 (5) SCC 714

AB

C

DE

F

G

H

Aeffective hearing must be afforded to the accused, with theopportunity to adduce material relevant for the question ofsentencing.

70. In the present case, the judgment of the Trial Court dealingwith sentencing indicates that a meaningful, real and effective hearingBwas not afforded to the petitioner.

71. The Trial Court did not conduct any separate hearing onsentencing and did not take into account any mitigating circumstancespertaining to the petitioner before awarding the death penalty. In thecourse of its judgment, the trial court merely noted the following, beforeCawarding the death penalty:

In present day circumstances it has become common of kidnappingof children and elders for ransom and kidnapped being murderedif expected ransom is not received. In this situation unless thekidnappers for ransom are punished with extreme penalty, in futurekidnapping of children and elders for ransom would get increasedDand the danger of society getting totally spoiled, would have tofaced is of no doubt. Hence having regard to all these it is decidedthat it would be in the interests of justice to award to the 1staccused the extreme penalty. Not only that the court saw themother of the deceased boy profusely crying and weeping in courtEover the death of her son in court and the scene of onlookers incourt having wept also cannot be forgotten by anyone. Hence it isdecided that such offenders have to be punished with extremepenalty; in the interests of justice.

72. The High Court took into account the gruesome and mercilessFnature of the act. It reiterated the precedents stating that the death penaltyis to be awarded only in the rarest of rare cases. However, it did notspecifically look at any mitigating circumstances bearing on the petitioner.It merely held that:

28. In a given case like this, it is an inhuman and a merciless actGof gruesome murder which would shock the conscience of thesociety. Under the circumstance, showing mercy or leniency tosuch accused would be misplacing the mercy. That apart, showingleniency would be mockery on the criminal system. Therefore,the death penalty imposed by the trial Judge, has got to be affirmed,and accordingly, it is affirmed.H

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

73. This Court examined the aggravating circumstances of thecrime in detail. However, as regards the mitigating circumstances, itnoted that:

31. As against the aforesaid aggravating circumstances, learnedcounsel for the accused-appellant could not point to us even asingle mitigating circumstance. Thus viewed, even on theparameters laid down by this Court, in the decisions relied uponby the learned counsel for the accused-appellant, we have nochoice, but to affirm the death penalty imposed upon the accusedappellant by the High Court. In fact, we have to record theaforesaid conclusion in view of the judgment rendered by thisCourt in Vikram Singh & Ors. Vs. State of Punjab, (2010) 3 SCC56, wherein in the like circumstances (certainly, the circumstancesherein are much graver than the ones in the said case), this Courthad upheld the death penalty awarded by the High Court.

74. The above sequence indicates that no mitigating circumstancesof the petitioner were taken into account at any stage of the trial or theappellate process even though the petitioner was sentenced to capitalpunishment.

75. In terms of the aggravating circumstances that were takennote of by this Court in appeal, our attention has been drawn to thefollowing circumstance:

30. […]

(vii) The choice of kidnapping the particular child for ransom,was well planned and consciously motivated. The parents of thedeceased had four children – three daughters and one son.Kidnapping the only male child was to induce maximum fear inthe mind of his parents. Purposefully killing the sole male child,has grave repercussions for the parents of the deceased. Agonyfor parents for the loss of their only male child, who would havecarried further the family lineage, and is expected to see themthrough their old age, is unfathomable. Extreme misery caused tothe aggrieved party, certainly adds to the aggravatingcircumstances.

We wish to note that the sex of the child cannot be in itselfconsidered as an aggravating circumstance by a constitutional court.

ABC

D

E

F

G

H

AThe murder of a young child is unquestionably a grievous crime and theyoung age of such a victim as well as the trauma that it causes for theentire family is in itself, undoubtedly, an aggravating circumstance. Insuch a circumstance, it does not and should not matter for a constitutionalcourt whether the young child was a male child or a female child. TheBmurder remains equally tragic. Courts should also not indulge in furtheringthe notion that only a male child furthers family lineage or is able toassist the parents in old age. Such remarks involuntarily further patriarchalvalue judgements that courts should avoid regardless of the context.

76. In Rajendra Pralhadrao Wasnik v State of Maharashtra[28],a three judge bench of this Court took note of the line of cases of thisCCourt which underline the importance of considering the probability ofreform and rehabilitation of the convicted accused before sentencinghim to death. The court observed:

43. At this stage, we must hark back to Bachan Singh anddifferentiate between possibility, probability and impossibility ofDreform and rehabilitation. Bachan Singh requires us to considerthe probability of reform and rehabilitation and not its possibilityor its impossibility.

[…]

45. The law laid down by various decisions of this Court clearlyEand unequivocally mandates that the probability (not possibility orimprobability or impossibility) that a convict can be reformed andrehabilitated in society must be seriously and earnestly consideredby the courts before awarding the death sentence. This is one ofthe mandates of the “special reasons” requirement of SectionF354(3) CrPC and ought not to be taken lightly since it involvessnuffing out the life of a person. To effectuate this mandate, itis the obligation on the prosecution to prove to the court,through evidence, that the probability is that the convictcannot be reformed or rehabilitated. This can be achieved byGbringing on record, inter alia, material about his conduct in jail, hisconduct outside jail if he has been on bail for some time, medicalevidence about his mental make-up, contact with his family andso on. Similarly, the convict can produce evidence on these issuesas well.

H28 2019 (12) SCC 460

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

46. If an inquiry of this nature is to be conducted, as is mandatedby the decisions of this Court, it is quite obvious that the periodbetween the date of conviction and the date of awarding sentencewould be quite prolonged to enable the parties to gather and leadevidence which could assist the trial court in taking an informeddecision on the sentence. But, there is no hurry in this regard,since in any case the convict will be in custody for a fairly longtime serving out at least a life sentence.

47. Consideration of the reformation, rehabilitation andreintegration of the convict into society cannot beoveremphasised. Until Bachan Singh, the emphasis givenby the courts was primarily on the nature of the crime, itsbrutality and severity. Bachan Singh placed the sentencingprocess into perspective and introduced the necessity ofconsidering the reformation or rehabilitation of the convict.Despite the view expressed by the Constitution Bench, there havebeen several instances, some of which have been pointed outin Bariyar and in Sangeet v. State of Haryana where there is atendency to give primacy to the crime and consider the criminal ina somewhat secondary manner. As observed in Sangeet ”In thesentencing process, both the crime and the criminal are equallyimportant.” Therefore, we should not forget that the criminal,however ruthless he might be, is nevertheless a humanbeing and is entitled to a life of dignity notwithstanding hiscrime. Therefore, it is for the prosecution and the courtsto determine whether such a person, notwithstanding hiscrime, can be reformed and rehabilitated. To obtain andanalyse this information is certainly not an easy task butmust nevertheless be undertaken. The process of rehabilitationis also not a simple one since it involves social reintegration of theconvict into society. Of course, notwithstanding any informationmade available and its analysis by experts coupled with theevidence on record, there could be instances where the socialreintegration of the convict may not be possible. If that shouldhappen, the option of a long duration of imprisonment is permissible.

AB

C

D

EF

G

H

A

A77. The law laid down in Bachan Singh requires meeting thestandard of ‘rarest of rare’ for award of the death penalty which requiresthe Courts to conclude that the convict is not fit for any kind of reformatoryand rehabilitation scheme. As noted in Santosh Kumar SatishbhushanBariyar v State of Maharashtra[29], this requires looking beyond thecrime at the criminal as well:B

66. The rarest of rare dictum, as discussed above, hints at thisdifference between death punishment and the alternativepunishment of life imprisonment. The relevant question here wouldbe to determine whether life imprisonment as a punishment willCbe pointless and completely devoid of reason in the facts andcircumstances of the case? As discussed above, lifeimprisonment can be said to be completely futile, only whenthe sentencing aim of reformation can be said to beunachievable. Therefore, for satisfying the second exceptionto the rarest of rare doctrine, the court will have to provideDclear evidence as to why the convict is not fit for any kindof reformatory and rehabilitation scheme. This analysis canonly be done with rigour when the court focuses on thecircumstances relating to the criminal, along with othercircumstances. This is not an easy conclusion to be deciphered,Ebut Bachan Singh sets the bar very high by introduction of therarest of rare doctrine.

78. A similar point was underlined by this Court in Anil v State ofMaharashtra[30 ]where the Court noted that:F

33. In Bachan Singh this Court has categorically stated, ‘theprobability that the accused would not commit criminal acts ofviolence as would constitute a continuing threat to the society’, isa relevant circumstance, that must be given great weight in thedetermination of sentence. This was further expressed in SantoshGKumar Satishbhushan Bariyar. Many a times, whiledetermining the sentence, the courts take it for granted,looking into the facts of a particular case, that the accused 29 2009 (6) SCC 498

30 2014 (4) SCC 69

H

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

would be a menace to the society and there is no possibilityof reformation and rehabilitation, while it is the duty of thecourt to ascertain those factors, and the State is obliged tofurnish materials for and against the possibility ofreformation and rehabilitation of the accused. The facts,which the courts deal with, in a given case, cannot be thefoundation for reaching such a conclusion, which, as alreadystated, calls for additional materials. We, therefore, direct thatthe criminal courts, while dealing with the offences like Section302 IPC, after conviction, may, in appropriate cases, call for areport to determine, whether the accused could be reformed orrehabilitated, which depends upon the facts and circumstances ofeach case.

79. No such inquiry has been conducted for enabling a considerationof the factors mentioned above in case of the petitioner. Neither the trialcourt, nor the appellate courts have looked into any factors to conclusivelystate that the petitioner cannot be reformed or rehabilitated. In the presentcase, the Courts have reiterated the gruesome nature of crime to awardthe death penalty. In appeal, this Court merely noted that the counsel forthe petitioner could not point towards mitigating circumstances and upheldthe death penalty. The state must equally place all material andcircumstances on the record bearing on the probability of reform. Manysuch materials and aspects are within the knowledge of the state whichhas had custody of the accused both before and after the conviction.Moreover, the court cannot be an indifferent by-stander in the process.The process and powers of the court may be utilised to ensure that suchmaterial is made available to it to form a just sentencing decision bearingon the probability of reform.

80. In Mofil Khan,a three judge bench of this Court was alsodealing with a review petition which was re-opened in view of the decisionin Mohd. Arif v Registrar, Supreme Court of India. While commutingthe death sentence to life imprisonment, the Court reiterated theimportance of looking at the possibility of reformation and rehabilitation.Notably, it pointed out that it was the Court’s duty to look into possiblemitigating circumstances even if the accused was silent. The Court heldthat:

A

BC

D

EF

G

H

A

A9. It would be profitable to refer to a judgment of this Courtin Mohd. Mannan v. State of Bihar in which it was held thatbefore imposing the extreme penalty of death sentence, the Courtshould satisfy itself that death sentence is imperative, as otherwisethe convict would be a threat to the society, and that there is noBpossibility of reform or rehabilitation of the convict, after givingthe convict an effective, meaningful, real opportunity of hearingon the question of sentence, by producing material. The hearingof sentence should be effective and even if the accusedremains silent, the Court would be obliged and duty-boundto elicit relevant factors.

C

10. It is well-settled law that the possibility of reformationand rehabilitation of the convict is an important factor whichhas to be taken into account as a mitigating circumstancebefore sentencing him to death. There is a bounden dutycast on the Courts to elicit information of all the relevantDfactors and consider those regarding the possibility ofreformation, even if the accused remains silent. A scrutinyof the judgments of the trial court, the High Court and this Courtwould indicate that the sentence of death is imposed by takinginto account the brutality of the crime. There is no reference toEthe possibility of reformation of the Petitioners, nor has the Stateprocured any evidence to prove that there is no such possibilitywith respect to the Petitioners. We have examined the socio-economic background of the Petitioners, the absence of anycriminal antecedents, affidavits filed by their family and communityFmembers with whom they continue to share emotional ties andthe certificate issued by the Jail Superintendent on their conductduring their long incarceration of 14 years. Considering all of theabove, it cannot be said that there is no possibility of reformationof the Petitioners, foreclosing the alternative option of a lessersentence and making the imposition of death sentence imperative.

D

E

G

81. The duty of the court to enquire into mitigating circumstancesas well as to foreclose the possibility of reformation and rehabilitationbefore imposing the death penalty has been highlighted in multipleHjudgments of this Court. Despite this, in the present case, no such enquiry was conducted and the grievous nature of the crime was the only factorthat was considered while awarding the death penalty.

82. During the course of the hearing of the review petition, thiscourt had passed an order directing the counsel for the state to getinstructions from jail authorities on the following aspects: (i) the conductof the petitioner in jail; (ii) information on petitioner’s involvement in anyother case; (iii) details of the petitioner acquiring education in jail; (iv)details of petitioner’s medical records; and (v) any other relevantinformation.

83. Through an affidavit dated 26 September 2021, the Sub-Inspector of Police Kammapuram at Cuddalore District, Tamil Naduhas informed the court that the conduct of petitioner has been satisfactoryand he has not been involved in any other case. Furthermore, he issuffering from systemic hypertension and availing medication from theprison hospital. The petitioner has also acquired a diploma in food cateringduring his time in the prison.

84. Separately, this Court also received a document dated 8November 2018 from the Superintendent of Prisons, Central Prison,Cuddalore-4 in response to the letter from Assistant Registrar, SupremeCourt of India communicating the order seeking instructions from jailauthorities. Notably, this document states that the petitioner tried to escapefrom prison on 6 November 2013. It is concerning that the Respondent,in the affidavit dated 26 September 2021, has failed to include thisinformation.

85. The non-disclosure of material facts amounts to misleadingthis Court and to an attempt at interfering with the administration ofjustice. In the Suo Motu Contempt Petition (Civil) No 3 of 2021 titled InRe: Perry Kansagra, this Court discussed the line of precedent of thisCourt dealing with tendering of affidavits and undertakings containingfalse statements or suppressing / concealing material facts amounting tocontempt of court:

15. It is thus well settled that a person who makes a false statementbefore the Court and makes an attempt to deceive the Court,interferes with the administration of justice and is guilty ofcontempt of Court. The extracted portion above clearly showsthat in such circumstances, the Court not only has the inherent A

B

C

D

E

F

G

H

Apower but it would be failing in its duty if the alleged contemnor isnot dealt with in contempt jurisdiction for abusing the process ofthe Court.

Accordingly, we deem it appropriate to initiate suo moto contemptproceedings against the respondent for withholding material informationBfrom this Court.

86. As per the written submissions of the petitioner, he was about24 years old when the judgment of the Trial Court was rendered on30July 2010. He has been in prison since 2009,13 years. He had no priorantecedents and thejail authorities have stated that he has not beenCinvolved in any other case. However, the jail authorities have brought tothe notice of this Court, the attempt of petitioner to escape from prison.

87. In the review petition, it has also been submitted that thepetitioner could not communicate mitigating circumstances bearing onhis sentencing decision to the lawyer and his relatives, who being poorDand uneducated, could not properly contest the case for him. The factremains that no mitigating circumstances were placed before any of theappellate courts.

88. On the basis of these details, it cannot be said that there is nopossibility of reformation even though the petitioner has committed aEghastly crime. We must consider several mitigating factors: the petitionerhas no prior antecedents, was 23 years old when he committed the crimeand has been in prison since 2009 where his conduct has been satisfactory,except for the attempt to escape prison in 2013. The petitioner is sufferingfrom a case of systemic hypertension and has attempted to acquire someFbasic education in the form of a diploma in food catering. The acquisitionof a vocation in jail has an important bearing on his ability to lead againful life.

89. Considering the above factors, we are of the view that eventhough the crime committed by the petitioner is unquestionably graveGand unpardonable, it is not appropriate to affirm the death sentence thatwas awarded to him. As we have discussed, the ‘rarest of rare’ doctrinerequires that the death sentence not be imposed only by taking intoaccount the grave nature of crime but only if there is no possibility ofreformation in a criminal.

H

SUNDAR @ SUNDARRAJAN v. STATE BY INSPECTOR OFPOLICE [DR. DHANANJAYA Y CHANDRACHUD, CJI]

90. However, we are also aware that a sentence of lifeimprisonment is subject to remission. In our opinion, this would not beadequate in view of the gruesome crime committed by the petitioner.

91. This court has been faced with similar situations earlier whereit has noticed that the sentence of life imprisonment with remission maybe inadequate in certain cases. For instance, in Swamy Shraddananda(2) @ Murali Manohar Mishra v State of Karnataka[31]the Courtnoted that:

92. The matter may be looked at from a slightly different angle.The issue of sentencing has two aspects. A sentence may beexcessive and unduly harsh or it may be highly disproportionatelyinadequate. When an appellant comes to this Court carrying adeath sentence awarded by the trial court and confirmed by theHigh Court, this Court may find, as in the present appeal, that thecase just falls short of the rarest of the rare category and mayfeel somewhat reluctant in endorsing the death sentence. But atthe same time, having regard to the nature of the crime,the Court may strongly feel that a sentence of lifeimprisonment subject to remission normally works out toa term of 14 years would be grossly disproportionate andinadequate. What then should the Court do? If the Court’soption is limited only to two punishments, one a sentenceof imprisonment, for all intents and purposes, of not morethan 14 years and the other death, the Court may feeltempted and find itself nudged into endorsing the death penalty. Such a coursewould indeed be disastrous. A far more just, reasonable and proper course would be to expand theoptions and to take over what, as a matter of fact, lawfullybelongs to the Court i.e. the vast hiatus between 14 years’imprisonment and death. It needs to be emphasised that theCourt would take recourse to the expanded option primarilybecause in the facts of the case, the sentence of 14 year’simprisonment would amount to no punishment at all.

A

B

C

D

E

F

G

H

A

92. Accordingly, it is open to this Court to prescribe the length ofimprisonment, especially in cases where the capital punishment is replacedby life imprisonment. Considering the facts of the instant case, we areof the considered view that the petitioner must undergo life imprisonmentfor not less than twenty years without remission of sentence.

BF. Conclusion

93. For the reasons discussed above, we see no reason to doubtthe guilt of the petitioner in kidnapping and murdering the victim. Theexercise of the jurisdiction in review to interfere with the conviction isnot warranted. However, we do take note of the arguments regardingCthe sentencing hearing not having been conducted separately in the TrialCourt and mitigating circumstances having not been considered in theappellate courts before awarding the capital punishment to the petitioner.While weighing this argument, the gruesome nature of the crime ofmurder of a young child of merely 7 years of age has also weighed uponDus and we do not find that a sentence of life imprisonment, which normallyworks out to a term of 14 years, would be proportionate in thecircumstances.

94. Accordingly, we commute the death sentence imposed uponthe petitioner to life imprisonment for not less than twenty years withoutEreprieve or remission.

95. Separately, a notice is required to be issued to the Inspector ofPolice, Kammapuram Police Station, Cuddalore District, State of TamilNadu to offer an explanation as to why action should not be taken forthe filing of the affidavit dated 26 September 2021. In this case, primaFfacie, material information regarding the conduct of the petitioner in theprison was concealed from this Court. Accordingly, the Registry isdirected to register the matter as a suo motu proceeding for contemptof court.

96. We dispose of the review petitions in the above terms.G

Nidhi Jain

Review petitions disposed of.

(Assisted by : Tamana, LCRA)

H