CHHANNU LAL VERMA versus THE STATE OF CHHATTISGARH on 28 November 2018

[2018] 14 S.C.R. 355

CHHANNU LAL VERMA

v.

THE STATE OF CHHATTISGARH

(Criminal Appeal Nos. 1482-1483 of 2018)

NOVEMBER 28, 2018

[KURIAN JOSEPH, DEEPAK GUPTA AND

HEMANT GUPTA, JJ.]

Administration of Criminal Justice – Capital punishment –Commutation of – Appellant allegedly murdered three persons andcaused grievous injuries to others – Sessions Court convicted theappellant u/ss. 302, 307, 506 (2) and 450, IPC – High Courtconfirmed the conviction and death sentence – On appeal, held:High Court erroneously confirmed the death penalty – No evidenceas to the uncommon nature of the offence or the improbability ofreformation or rehabilitation of the appellant was adduced – Deathpenalty is to be awarded only in the rarest of rare cases where lifeimprisonment is wholly inadequate or futile owing to the nature ofthe crime and the circumstances relating to the criminal – Whethernot granting death penalty would send a wrong message to societyare additional factors to be looked at – No such analysis wasundertaken by the High Court – High Court also failed to look atthe aggravating and mitigating circumstances – Conduct of theconvict in prison cannot be lost sight of – The fact that the prisonerdisplayed good behaviour in prison certainly goes on to show thathe is not beyond reform – Decision to impose the highest punishmentof death sentence in the present case does not fulfil the test of “rarestof rare case where the alternative option is unquestionablyforeclosed” – Imposition of death sentence was not the only optionand hence the same is commuted to imprisonment for life – PenalCode, 1860 – ss. 302, 307, 506 (2) and 450 .

Administration of Criminal Justice – Capital Punishment –Constitutional regulation of – Held: (Per Kurian Joseph, J.) Timehas come to view the need for death penalty as a punishment,especially its purpose and practice – Per Deepak Gupta, J. (forhimself and Hemant Gupta, J.)(Partly Dissenting) Since the

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AConstitution Bench of the Supreme Court in Bachan Singh case hasupheld capital punishment, there is no need to re-examine the sameat this stage.

Partly allowing the appeals, the Court

HELD: 1.1 The High Court has erroneously confirmedBdeath penalty without correctly applying the law laid down in thecases of Bachan Singh, Machhi Singh , Santosh Bariyar andShankar Kisanrao Khade. The decision to impose the highestpunishment of death sentence in this case does not fulfil the test of “rarest of rare case where the alternative option isCunquestionably foreclosed”. No evidence as to the uncommonnature of the offence or the improbability of reformation orrehabilitation of the appellant was adduced. Death penalty shallbe awarded only in the rarest of rare cases where lifeimprisonment shall be wholly inadequate or futile owing to thenature of the crime and the circumstances relating to the criminal.DWhether the person is capable of reformation and rehabilitationshould also be taken into consideration while imposing deathpenalty. Whether the person would be a threat to society orwhether not granting death penalty would send a wrong messageto society are additional factors to be looked at. No such analysisEwas undertaken by the High Court. The High Court has alsofailed to look at the aggravating and mitigating circumstancesregarding the criminal as warranted by Bachan Singh. The factthat the appellant had no previous criminal record apart from theacquittal in the Section 376, IPC, which was a false implicationand the alleged motive did not weigh with the High Court as anFimportant mitigating circumstance with respect to the criminal.[Para 13][368-E-H; 369-A-B]

1.2 The superintendent of the jail has given a certificatethat his conduct in jail has been good. Thus, there is a clearindication that despite having lost all hope, yet no frustration hasGset on the appellant. On the contrary, there was a conscious efforton his part to lead a good life for the remaining period. A convictis sent to jail with the hope and expectation that he would makeamends and get reformed. That there is such a positive changeon a death row convict should also weigh with the Court whileHtaking a decision as to whether the alternative option is unquestionably foreclosed. It was the duty of the State to proveby evidence that the convict cannot be reformed or rehabilitated.That information not having been furnished by the State at therelevant time, the information now furnished by the State becomesall the more relevant. The standard set by the ‘rarest of rare’test in Bachan Singh is a high standard. The conduct of the convictin prison cannot be lost sight of. The fact that the prisoner hasdisplayed good behaviour in prison certainly goes on to showthat he is not beyond reform. [Para 15][369-G-H; 370-A-B]

1.3 In the matter of probability and possibility of reform ofa criminal, a proper psychological/psychiatric evaluation was notdone. Without the assistance of such a psychological/psychiatricassessment and evaluation it would not be proper to hold thatthere is no possibility or probability of reform. The State has tobear in mind this important aspect while proving by evidencethat the convict cannot be reformed or rehabilitated. Anotheraspect that has been overlooked by the High Court is theprocedural impropriety of not having a separate hearing forsentencing at the stage of trial. A bifurcated hearing forconviction and sentencing was a necessary condition. Byconducting the hearing for sentencing on the same day, theTrial court has failed to provide necessary time to the appellantto furnish evidence relevant to sentencing and mitigation.[Para 16, 17][370-C-E]

1.4 For the abovementioned reasons, the impositionof death sentence was not the only option and hence thesame needs to be commuted to imprisonment for life.[Para 18][370-E-F]

Bachan Singh v. State of Punjab (1980) 2 SCC 684 –followed.

Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;Machhi Singh v. State of Punjab (1983) 3 SCC 470 :[1983] 3 SCR 413 ; Shankar Kisanrao Khade v. Stateof Maharashtra (2013) 5 SCC 546 : [2013] 6 SCR949 – relied on.

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ASonu Sardar v. State of Chhattisgarh (2012) 4 SCC 97: [2012] 3 SCR 558 ; Sangeet v. State of Haryana (2013)2 SCC 452 : [2012] 13 SCR 85 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1482-1483 of 2018.

DFrom the Judgment and Order dated 11.04.2014 of the High Courtof Chhattisgarh at Bilaspur in Criminal Reference Nos. 06 of 2013 and712 of 2013.

Colin Gonsalves, Sr. Adv., Ms. Ninni Susan Thomas, Shreeji,Radha Shyam Jena, Satya Mitra,, Advs. for the Appellant.

EAtul Jha, Sandeep Jha, Dharmendra Kumar Sinha, Advs. for theRespondent.

The Judgment of the Court was delivered by KURIAN, J. 1. Leave granted.

2. These appeals are filed against the order of the High Court ofChhattisgarh dated 11.04.2014 confirming the death sentence awardedto the appellant by the Sessions Judge, Durg vide its judgment in SessionsTrial No. 288/2011 dated 25.06.2013. The appellant has challenged boththe conviction and the sentence.

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3. The brief facts in the present case are as follows. On 19.10.2011,it is alleged that the appellant entered the house of Anandram Sahu,Firanteen Bai (wife of Anandram Sahu) and Smt. Ratna Sahu (daughter-in-law of Anandram). The appellant caused fatal injuries to Anandram,Ratna Sahu and Firanteen Bai with a knife. Thereafter, the appellantentered the house of Durga Banchhor with a blood-stained knife and G

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assaulted Meera Banchhor and inflicted grievous injuries. When DurgaBanchhor tried to intervene, she was pushed away by the appellant whothen fled from the spot.

4. The Sessions Court convicted the appellant for murder underSection 302 of the IPC, attempt to murder under Section 307 IPC,threatening to kill under Section 506 (2) IPC and house trespass underSection 450 IPC and sentenced him to undergo life imprisonment, imposedfines and awarded him death sentence. The Court took the view thatthis is a case of the rarest of the rare category. The way the appellantalso picked and chose the people indicated that the act was pre-meditated.And since the appellant exhibited cruelty in the process, the Court held itas a case under the rarest of the rare cases category and the appellantwas awarded death sentence.

5. The High Court while confirming the conviction and deathsentence, relied upon the testimony of PW-15 Sonu who is a child witness,PW-11 Durga Bai, PW-8 Basanta, PW-9 Sukhdev Yadav and PW-10Jailal Dhankar, apart from post-mortem reports. The aggravating andmitigating circumstances were also considered. While balancing theaggravating and mitigating circumstances, the following have been viewedas aggravating circumstances:

i.That the appellant has committed murder of three persons.

ii.That the appellant knew what he was doing and theconsequences thereof and yet he committed the offence.

iii. That the murder of Ratna Bai was committed as he waspreviously charged of rape with the deceased Ratna anddetained in jail for a year although he was later acquitted.

iv. Apart from committing murder of three persons, he has alsocaused grievous injuries to three persons.

v.That two of the deceased and one of the injured persons werewomen.

The only mitigating circumstance that the Court took note of wasthe fact that the appellant had been previously accused of committingrape and was detained in jail for one year only to be acquitted later.Another factor that the High Court placed reliance on was that theappellant either feigned ignorance to or denied the questions put to himby the Trial Judge. The Court thus drew the inference that he did not A

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Amake a case that the offence was committed by him in an emotional orhighly disturbed state of mind owing to false implication in the rape case.The Court held that “the appellant did not mitigate the circumstance fornot imposing the death sentence.” In conclusion, the High Court heldthat the aggravating circumstances outweighed the mitigatingcircumstances and the case thus fell within the ambit of rarest of theBrare case which calls for the imposition of death penalty. Having regardto the strong evidence on record, Mr. Colin Gonsalves, learned seniorcounsel for the appellant finally, and according to us rightly, submittedthat at least the sentence may be commuted to life.

6. The learned senior counsel has pointed out that the hearing forCconviction and sentencing was done on the same day in violation of theguidelines laid down in Bachan Singh v. State of Punjab[1]and that theappellant should have been given ample time to adduce evidence inmitigation and thereafter to be heard on the question of sentence. Reliancehas also been placed on Santosh Kumar Satishbhushan Bariyar v.

DState of Maharashtra[2] wherein the Court held that under Sections 235(2)and 354(3) of the Code of Criminal Procedure, 1973 there is a mandatefor a full-fledged and bifurcated hearing and recording of “special reasons”if the court is inclined to award death sentence. The Trial Court hassolely looked at the brutality of the crime to impose death penalty whereasBachan Singh (supra) and Santosh Bariyar (supra) unambiguouslyEhave held that aggravating and mitigating circumstances with regard toboth the crime and the criminal need to be collected before imposingdeath penalty. Another contention raised by the appellant is that the HighCourt has erred in holding that the appellant did not mitigate thecircumstance for not imposing death penalty when the onus to elicitFinformation necessary for the purpose of sentencing is on the court asheld in Bachan Singh (supra). It is also argued that the High Court hasoverlooked the condition laid down in Bachan Singh (supra) that theState has to prove that the accused does not demonstrate any probabilityof reformation or rehabilitation. On the above-mentioned grounds, the counsel for the appellant prays that the death sentence imposed beGcommuted to imprisonment for life.

7. According to the counsel for the respondent State, the mensrea of the appellant was of high degree and intensity and that the Courtswere right in imposing death penalty. It has also been pointed out that1(1980) 2 SCC 684H2(2009) 6 SCC 498

2(2009) 6 SCC 498

the appellant had a previous criminal background with the same familyin a Section 376 IPC case and thus it is a case where he has failed toreform himself. The respondent has also advanced arguments based onthe testimony of the child witness, placing reliance on Sonu Sardar v.State of Chhattisgarh[3]. The blows delivered by the appellant wereintended to commit murder as all the injuries were severe and inflictedon vital parts. The counsel also pointed out that the appellant had previousenmity with the family and the murder was carried out in cold blood andin a premeditated manner, without any provocation from the victims.The appellant has not attempted to establish that the act was committedby him due to emotional instability caused by the false implication in arape case with one of the deceased. In short, the appellant has notmitigated the circumstances for avoiding death sentence.

8. In Bachan Singh (supra) while upholding the constitutionalvalidity of death penalty in India, it was held that under Section 354(3) ofthe CrPC, imprisonment for life is the rule and death sentence is theexception. The Court emphasized the need for principled sentencingwithout completely trammeling the discretionary powers of the judges.It also held that the “special reasons” that are required to be recordedwhile awarding death sentence means “exceptional reasons” foundedon the exceptionally grave circumstances of the particular case relatingto the crime as well as the criminal. Some of the aggravating andmitigating circumstances indicated in Bachan Singh (supra) are: - Aggravating circumstances: A court may, however, in thefollowing cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planningand involves extreme brutality; or (b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces ofthe Union or of a member of any police force or of anypublic servant and was committed—

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be doneby such member or public servant in the lawful discharge ofhis duty as such member or public servant whether at the A

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Atime of murder he was such member or public servant, asthe case may be, or had ceased to be such member or publicservant; or (d) if the murder is of a person who had acted in the lawfuldischarge of his duty under Section 43 of the Code of Criminal Procedure,B1973, or who had rendered assistance to a Magistrate or a police officerdemanding his aid or requiring his assistance under Section 37 and Section129 of the said Code.”

Mitigating circumstances: In the exercise of its discretion inthe above cases, the court shall take into account the followingCcircumstances:

(1) That the offence was committed under the influence of extrememental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, heshall not be sentenced to death.

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(3) The probability that the accused would not commit criminalacts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed andrehabilitated. The State shall by evidence prove that the accused doesnot satisfy the conditions (3) and (4) above.E

(5) That in the facts and circumstances of the case the accusedbelieved that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination ofanother person.

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(7) That the condition of the accused showed that he was mentallydefective and that the said defect impaired his capacity to appreciatethe criminality of his conduct.

9. The Court also clarified that while determining the punishment,due regard must be given to the crime as well as the criminal. TheGaggravating and mitigating circumstances would have to be viewed fromthe perspective of both the crime and the criminal. The relevant discussionreads thus:

“201. …As we read Sections 354(3) and 235(2) and other relatedprovisions of the Code of 1973, it is quite clear to us that forHmaking the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the court mustpay due regard both to the crime and the criminal. What is therelative weight to be given to the aggravating and mitigating factors,depends on the facts and circumstances of the particular case.More often than not, these two aspects are so intertwined that itis difficult to give a separate treatment to each of them. This is sobecause “style is the man”. In many cases, the extremely cruel orbeastly manner of the commission of murder is itself ademonstrated index of the depraved character of the perpetrator.That is why, it is not desirable to consider the circumstances ofthe crime and the circumstances of the criminal in two separatewatertight compartments. In a sense, to kill is to be cruel andtherefore all murders are cruel. But such cruelty may vary in itsdegree of culpability. And it is only when the culpability assumesthe proportion of extreme depravity that “special reasons” canlegitimately be said to exist.”

However, the Court has emphasised that the list of aggravatingand mitigating circumstances provided above are not exhaustive and thescope of mitigating factors in death penalty must receive a liberal andexpansive construction by the courts. Paragraph 209 reads as follows:

“209. There are numerous other circumstances justifying thepassing of the lighter sentence; as there are countervailingcircumstances of aggravation. “We cannot obviously feed into ajudicial computer all such situations since they are astrologicalimponderables in an imperfect and undulating society.”-Nonetheless, it cannot be overemphasised that the scope andconcept of mitigating factors in the area of death penalty mustreceive a liberal and expansive construction by the courts in accordwith the sentencing policy writ large in Section 354(3).Judgesshould never be bloodthirsty. Hanging of murderers has neverbeen too good for them. Facts and Figures, albeit incomplete,furnished by the Union of India, show that in the past, courts haveinflicted the extreme penalty with extreme infrequency — a factwhich attests to the caution and compassion which they havealways brought to bear on the exercise of their sentencingdiscretion in so grave a matter. It is, therefore, imperative to voicethe concern that courts, aided by the broad illustrative guide-lines A

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Aindicated by us, will discharge the onerous function with evermorescrupulous care and humane concern, directed along the highroadof legislative policy outlined in Section 354(3) viz. that for personsconvicted of murder, life imprisonment is the rule and deathsentence an exception. A real and abiding concern for the dignityof human life postulates resistance to taking a life through law’sBinstrumentality. That ought not to be done save in the rarestof rare cases when the alternative option is unquestionablyforeclosed.”

C10. In Machhi Singh v. State of Punjab[4]the Court summarisedthe findings in Bachan Singh (supra) and held as follows:

“38. In this background the guidelines indicated in Bachan Singhcase will have to be culled out and applied to the facts of eachindividual case where the question of imposing of death sentenceDarises. The following propositions emerge from Bachan Singhcase:

(i) The extreme penalty of death need not be inflicted exceptin gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances ofEthe ‘offender’ also require to be taken into consideration alongwith the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is anexception. In other words death sentence must be imposedonly when life imprisonment appears to be an altogetherFinadequate punishment having regard to the relevantcircumstances of the crime, and provided, and only provided,the option to impose sentence of imprisonment for life cannotbe conscientiously exercised having regard to the nature andcircumstances of the crime and all the relevant circumstances.

G(iv) A balance sheet of aggravating and mitigatingcircumstances has to be drawn up and in doing so the mitigatingcircumstances have to be accorded full weightage and a justbalance has to be struck between the aggravating and themitigating circumstances before the option is exercised.

39. In order to apply these guidelines inter alia the followingquestions may be asked and answered:

(a) Is there something uncommon about the crime whichrenders sentence of imprisonment for life inadequate and callsfor a death sentence?

(b) Are the circumstances of the crime such that there is noalternative but to impose death sentence even after accordingmaximum weightage to the mitigating circumstances whichspeak in favour of the offender?

40. If upon taking an overall global view of all the circumstancesin the light of the aforesaid proposition and taking into account theanswers to the questions posed hereinabove, the circumstancesof the case are such that death sentence is warranted, the courtwould proceed to do so.”

11. It is evident that the Court in Bachan Singh (supra) has set avery high threshold of “rarest of rare cases when the alternative optionis unquestionably foreclosed” for the grant of death penalty. The meaningand ambit of this expression has been discussed in Santosh Bariyar(supra). The Court also emphasised the need for a bifurcated hearingfor the purpose of conviction and sentencing. The relevant portion reads:

“56. At this stage, Bachan Singh informs the content of thesentencing hearing. The court must play a proactive role to recordall relevant information at this stage.Some of the informationrelating to crime can be culled out from the phase prior tosentencing hearing. This information would include aspects relatingto the nature, motive and impact of crime, culpability of convict,etc. Quality of evidence adduced is also a relevant factor. Forinstance, extent of reliance on circumstantial evidence or childwitness plays an important role in the sentencing analysis. Butwhat is sorely lacking, in most capital sentencing cases, isinformation relating to characteristics and socio-economicbackground of the offender.This issue was also raised in the 48thReport of the Law Commission.

57. Circumstances which may not have been pertinent inconviction can also play an important role in the selection of A

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sentence. Objective analysis of the probability that the accusedcan be reformed and rehabilitated can be one such illustration.Inthis context, Guideline 4 in the list of mitigating circumstances asborne out by Bachan Singh is relevant. The Court held: (SCC p.750, para 206)

“206. (4) The probability that the accused can be reformedand rehabilitated.

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The State shall by evidence prove that the accused does notsatisfy Conditions (3) and (4) above.”

In fine, Bachan Singh mandated identification of aggravating andmitigating circumstance relating to crime and the convict to becollected in the sentencing hearing.

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58. The rarest of rare dictum breathes life in “special reasons”under Section 354(3). In this context, Bachan Singh laid down afundamental threshold in the following terms: (SCC p. 751, para209)

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“209. … A real and abiding concern for the dignity of humanlife postulates resistance to taking a life through law’sinstrumentality. That ought not to be done save in the rarestof rare cases when the alternative option is unquestionablyEforeclosed.”

(emphasis supplied)

An analytical reading of this formulation would reveal it to be anauthoritative negative precept. The “rarest of rare cases” is anexceptionally narrow opening provided in the domain of thisFnegative precept. This opening is also qualified by another conditionin the form of “when the alternative option is unquestionablyforeclosed”.

59. Thus, in essence, the rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can onlyGbe revoked if the facts of the case successfully satisfy doublequalification enumerated below:

1. that the case belongs to the rarest of rare category,

2. and the alternative option of life imprisonment will just notsuffice in the facts of the case.

60. The rarest of rare dictum serves as a guideline in enforcingSection 354(3) and entrenches the policy that life imprisonment isthe rule and death punishment is an exception. It is a settled lawof interpretation that exceptions are to be construed narrowly.That being the case, the rarest of rare dictum places anextraordinary burden on the court, in case it selects deathpunishment as the favoured penalty, to carry out an objectiveassessment of facts to satisfy the exceptions ingrained in the rarestof rare dictum.

61. The background analysis leading to the conclusion that thecase belongs to the rarest of rare category must conform tohighest standards of judicial rigor and thoroughness as the normunder analysis is an exceptionally narrow exception. A conclusionas to the rarest of rare aspect with respect to a matter shall entailidentification of aggravating and mitigating circumstances relatingboth to the crime and the criminal. It was in this context noted:(Bachan Singh case, SCC p. 738, para 161

“161. … The expression ‘special reasons’ in the context ofthis provision, obviously means ‘exceptional reasons’ foundedon the exceptionally grave circumstances of the particularcase relating to the crime as well as the criminal.””

12. In Shankar Kisanrao Khade v. State of Maharashtra[5]thisCourt looked at the manner in which the aggravating and mitigatingcircumstances are to be weighed and how the rarest of rare test is to beapplied while awarding death sentence and held thus:

“52. Aggravating circumstances as pointed out above, of course,are not exhaustive so also the mitigating circumstances. In myconsidered view, the tests that we have to apply, while awardingdeath sentence are “crime test”, “criminal test” and the “R-Rtest” and not the “balancing test”. To award death sentence, the“crime test” has to be fully satisfied, that is, 100% and “criminaltest” 0%, that is, no mitigating circumstance favouring the accused.If there is any circumstance favouring the accused, like lack of 5(2013) 5 SCC 546

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Aintention to commit the crime, possibility of reformation, youngage of the accused, not a menace to the society, no previous trackrecord, etc. the “criminal test” may favour the accused to avoidthe capital punishment. Even if both the tests are satisfied, that is,the aggravating circumstances to the fullest extent and no mitigatingcircumstances favouring the accused, still we have to apply finallyB-the rarest of the rare case test (RR test).R-R test depends uponthe perception of the society that is “society-centric” and not“Judge-centric”, that is, whether the society will approve theawarding of death sentence to certain types of crimes or not.While applying that test, the court has to look into variety of factorsClike society’s abhorrence, extreme indignation and antipathy tocertain types of crimes like sexual assault and murder ofintellectually challenged minor girls, suffering from physicaldisability, old and infirm women with those disabilities, etc.Examples are only illustrative and not exhaustive. The courts awarddeath sentence since situation demands so, due to constitutionalDcompulsion, reflected by the will of the people and not the will ofthe Judges.”

13. In our opinion, the High Court has erroneously confirmed deathEpenalty without correctly applying the law laid down in Bachan Singh(supra), Machhi Singh (supra), Santosh Bariyar (supra) and ShankarKisanrao Khade (supra). The decision to impose the highest punishmentof death sentence in this case does not fulfil the test of “rarest of rarecase where the alternative option is unquestionably foreclosed”. Thequestions laid down in paragraph 39 of Machhi Singh (supra) have notFbeen answered in the particular case. No evidence as to the uncommonnature of the offence or the improbability of reformation or rehabilitationof the appellant has been adduced. Bachan Singh (supra) unambiguouslysets out that death penalty shall be awarded only in the rarest of rarecases where life imprisonment shall be wholly inadequate or futile owingGto the nature of the crime and the circumstances relating to the criminal.Whether the person is capable of reformation and rehabilitation shouldalso be taken into consideration while imposing death penalty. As laiddown in Shankar Kisanrao Khade (supra), whether the person wouldbe a threat to society or whether not granting death penalty would senda wrong message to society are additional factors to be looked at. NoHsuch analysis was undertaken by the High Court. The High Court hasalso failed to look at the aggravating and mitigating circumstances regarding the criminal as warranted by Bachan Singh (supra). The factthat the appellant had no previous criminal record apart from the acquittalin the Section 376, IPC, which was a false implication and the allegedmotive did not weigh with the High Court as an important mitigatingcircumstance with respect to the criminal.

14. In the past four decades or so, this Court has been consistentlyechoing its concern on the constitutional ethos on value and dignity oflife, when it said in Bachan Singh (supra) that ‘extreme depravity’(paragraph 201), ‘it is the duty of the State to adduce evidence that thereis no probability that the accused can be reformed’ (paragraph 206),‘liberal and expansive connotation’ (paragraph 209), ‘alternative optionis unquestionably foreclosed’ (paragraph 209) ‘humane concern’(paragraph 209), ‘real and abiding concern for dignity of human life’(paragraph 209), in Machhi Singh (supra) that ‘gravest case of extremeculpability’ (paragraph 38), ‘only when life appears to be an altogetherinadequate punishment’ (paragraph 28), ‘mitigating circumstances shouldbe given full weightage’ (paragraph 38), in Santosh Bariyar (supra)that ‘probability that the accused can be reformed and rehabilitated’(paragraph 57), ‘the rarest of rare case is a negative precept’ (paragraph58), ‘death is an exceptionally narrow opening’ (paragraph 58),‘extraordinary burden on the Court to impose death’ (paragraph 60),‘maximum weightage to mitigating circumstances and yet no alternativeexcept death’ (paragraph 39), ‘highest standards of judicial rigor andthoroughness’ (paragraph 61), and in Shankar Kisanrao Khade (supra)that ‘possibility of reformation, young age of the accused, not a menaceto the society, no previous track record’ (paragraph 52) etc. These factorshave not received due consideration by either the High Court or the TrialCourt.

15. The appeal has been pending before this Court for the pastfour years. Since the appellant has been in jail, we wanted to knowwhether there was any attempt on his part for reformation. Thesuperintendent of the jail has given a certificate that his conduct in jailhas been good. Thus, there is a clear indication that despite having lostall hope, yet no frustration has set on the appellant. On the contrary,there was a conscious effort on his part to lead a good life for the remainingperiod. A convict is sent to jail with the hope and expectation that hewould make amends and get reformed. That there is such a positivechange on a death row convict, in our view, should also weigh with theCourt while taking a decision as to whether the alternative option is A

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Aunquestionably foreclosed. As held by the Constitution Bench in BachanSingh (supra) it was the duty of the State to prove by evidence that theconvict cannot be reformed or rehabilitated. That information not havingbeen furnished by the State at the relevant time, the information nowfurnished by the State becomes all the more relevant. The standard setby the ‘rarest of rare’ test in Bachan Singh (supra) is a high standard.BThe conduct of the convict in prison cannot be lost sight of. The fact thatthe prisoner has displayed good behaviour in prison certainly goes on toshow that he is not beyond reform.

16. In the matter of probability and possibility of reform of acriminal, we do not find that a proper psychological/psychiatric evaluationCis done. Without the assistance of such a psychological/psychiatricassessment and evaluation it would not be proper to hold that there is nopossibility or probability of reform. The State has to bear in mind thisimportant aspect while proving by evidence that the convict cannot bereformed or rehabilitated.D

17. Another aspect that has been overlooked by the High Court isthe procedural impropriety of not having a separate hearing for sentencingat the stage of trial. A bifurcated hearing for conviction and sentencingwas a necessary condition laid down in Santosh Bariyar (supra). Byconducting the hearing for sentencing on the same day, the Trial courtEhas failed to provide necessary time to the appellant to furnish evidencerelevant to sentencing and mitigation.

18. For the abovementioned reasons, we hold that the impositionof death sentence was not the only option and hence the same needs tobe commuted to imprisonment for life.

FFuture of death penalty in India

19. Since Bachan Singh (supra) is a Constitution Bench decisionof this Court, the Courts are bound to follow the principles laid down inthe said judgment until it is duly revisited. But we cannot altogetherignore the fact that various Benches have, over a period of time,Gexpressed concern regarding the inconsistent application of the principleslaid down in Bachan Singh (supra) and have also taken forward theapplication of the principles to reduce such inconsistencies. In SantoshBariyar (supra), the Court noted the global move away from death penaltyand observed:

“109. …it is now clear that even the balance sheet of aggravatingand mitigating circumstances approach invoked on a case-by-case H

basis has not worked sufficiently well so as to remove the vice ofarbitrariness from our capital sentencing system. It can be safelysaid that the Bachan Singh threshold of “the rarest of rare cases”has been most variedly and inconsistently applied by the variousHigh Courts as also this Court.

110. At this point we also wish to point out that the uncertainty inthe law of capital sentencing has special consequence as the matterrelates to death penalty—the gravest penalty arriving out of theexercise of extraordinarily wide sentencing discretion, which isirrevocable in nature. This extremely uneven applicationof Bachan Singh has given rise to a state of uncertainty in capitalsentencing law which clearly falls foul of constitutional due processand equality principle. The situation is unviable as legal discretionwhich is conferred on the executive or the judiciary is onlysustainable in law if there is any indication, either through law orprecedent, as to the scope of the discretion and the manner of itsexercise. There should also be sufficient clarity having regard tothe legitimate aim of the measure in question. The Constitution ofIndia provides for safeguards to give the individual adequateprotection against arbitrary imposition of criminal punishment.”

20. In Sangeet v. State of Haryana[6] the Court notes that

20. In Sangeet v. State of Haryana[6] the Court notes that “30. The application of the sentencing policy through aggravatingand mitigating circumstances came up for consideration in SwamyShraddananda (2) v. State of Karnataka. On a review, it wasconcluded in para 48 of the Report that there is a lack of evennessin the sentencing process. The rarest of rare principle has notbeen followed uniformly or consistently.Reference in this contextwas made to Aloke Nath Dutta v. State of W.B. which in turnreferred to several earlier decisions to bring home the point.

31. The critique in Swamy Shraddananda was mentioned (withapproval) in Santosh Kumar Satishbhushan Bariyar v. Stateof Maharashtra while sharing this Court’s “unease and sense ofdisquiet” in paras 109, 129 and 130 of the Report. In fact, in para109 of the Report, it was observed that: (Bariyar case)

“109. … the balance sheet of aggravating and mitigatingcircumstances approach invoked on a case-by-case basis hasnot worked sufficiently well so as to remove the vice of 6(2013) 2 SCC 452

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arbitrariness from our capital sentencing system. It can besafely said that the Bachan Singh threshold of ‘the rarest ofrare cases’ has been most variedly and inconsistently appliedby the various High Courts as also this Court.”

32. It does appear that in view of the inherent multitude ofpossibilities, the aggravating and mitigating circumstances approachhas not been effectively implemented.

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33. Therefore, in our respectful opinion, not only does theaggravating and mitigating circumstances approach need a freshlook but the necessity of adopting this approach also needs a freshlook in light of the conclusions in Bachan Singh. It appears to usthat even though Bachan Singh intended “principled sentencing”,-sentencing has now really become Judgecentric as highlightedin Swamy Shraddananda and Bariyar.This aspect of thesentencing policy in Phase II as introduced by the ConstitutionBench in Bachan Singh seems to have been lost in transition.”

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21. In Shankar Kisanrao Khade (supra), this Court went to theextent of requesting the Law Commission of India for resolving “… theissue by examining whether death penalty is a deterrent punishment oris retributive justice or serves an incapacitative goal.”

E22. In this context, it may be relevant to note that the ConstitutionBench in Bachan Singh (supra) has made extensive refence to the 35[th]Report of Law Commission submitted in the year 1967, which justifiedthe retention of death penalty. Interestingly, Report No. 262 submitted inthe year 2015 prepared and submitted based on the request made by thisCourt has taken a different view, after extensive research and withFreference to the international approach. To quote from the introductionof the Report No. 262 :- E

“CHAPTER-I

INTRODUCTION

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A. Reference from the Supreme Court

1.1.1. In Shankar kisanrao Khade v. State of Maharashtra(‘Khade’) (2013) 5 SCC 546 the Supreme Court of India, whiledealing with an appeal on the issue of death sentence, expressedits concern with the lack of a coherent and consistent purpose and basis for awarding death and granting clemency. The Courtspecifically called for the intervention of the Law Commission ofIndia (‘the Commission’) on these two issues, noting that :

It seems to me that though the courts have been applying therarest of rare principle, the executive has taken intoconsideration some factors not known to the courts forconverting a death sentence to imprisonment for life. It isimperative, in this regard, since we are dealing with the livesof people (both the accused and the rape-murder victim) thatthe courts lay down a jurisprudential basis for awarding thedeath penalty and when the alternative is unquestionablyforeclosed so that the prevailing uncertainty is avoided. Deathpenalty and its execution should not become a matter ofuncertainty nor should converting a death sentence intoimprisonment for life become a matter of chance. Perhapsthe Law Commission of India can resolve the issue byexamining whether death penalty is a deterrent punishmentor is retributive justice or serves an incapacitative goal.(Shankar Kisanrao Khade v. State of Maharashtra (2013)5 SCC 546 -para 148 (Emphasis supplied)

It does not prima facie appear that two important organsof the State, that is, the judiciary and the executive aretreating the life of convicts convicted of an offencepunishable with death with different standards. While thestandard applied by the judiciary is that of the rarest ofrare principle (however subjective or Judge-centric it maybe in its application), the standard applied by the executivein granting commutation is not known. Therefore, it couldhappen (and might well have happened) that in a givencase the Sessions Judge, the High Court and the SupremeCourt are unanimous in their view in awarding the deathpenalty to a convict, any other option being unquestionablyforeclosed, but the executive has taken a diametricallyopposite opinion and has commuted the death penalty. Thismay also need to be considered by the Law Commission ofIndia. (2013) 5 SCC 546-para 149. (Emphasis supplied)

1.1.2. Khade was not the first recent instance of the Supreme Courtreferring a question concerning the death penalty to the Commission. In A

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ASantosh Kumar Satishbhushan Bariyar v. State of Maharashtra(‘Bariyar’) (2009) 6 SCC 498 lamenting the lack of empirical researchon this issue, the Court observed :

We are also aware that on 18.12.2007, the United NationsGeneral Assembly adopted Resolution 62/149 calling uponcountries that retain the death penalty to establish aworldwide moratorium on executions with a view toabolishing the death penalty. India is, however, one of the59 nations that retain the death penalty. Credible research,perhaps by the Law Commission of India or the NationalHuman Rights Commission may allow for an up-do-dateand informed discussion and debate on the subject.(Emphasis supplied)

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1.1.3. The present Report is thus largely driven by these referencesof the Supreme Court and the need for re-examination of theCommission’s own recommendations on the death penalty in theDlight of changed circumstances.”

23. Chapter -VII of Report No. 262 contains the Conclusionsand Recommendations. To quote :- “A. Conclusions E

7.1.1 The death penalty does not serve the penological goal ofdeterrence any more than life imprisonment. Further, lifeimprisonment under Indian law means imprisonment for the wholeof life subject to just remissions which, in many states in cases ofserious crimes, are granted only after many years of imprisonmentwhich range from 30-60 years.

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7.1.2 Retribution has an important role to play in punishment.However, it cannot be reduced to vengeance. The notion of “aneye for an eye, tooth for a tooth” has no place in our constitutionallymediated criminal justice system. Capital punishment fails toachieve any constitutionally valid penological goals.

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7.1.3 In focusing on death penalty as the ultimate measure ofjustice to victims, the restorative and rehabilitative aspects of justiceare lost sight of. Reliance on the death penalty diverts attentionfrom other problems ailing the criminal justice system such aspoor investigation, crime prevention and rights of victims of crime.

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It is essential that the State establish effective victim compensationschemes to rehabilitate victims of crime. At the same time, it isalso essential that courts use the power granted to them under theCode of Criminal Procedure, 1973 to grant appropriatecompensation to victims in suitable cases. The voices of victimsand witnesses are often silenced by threats and other coercivetechniques employed by powerful accused persons. Hence it isessential that a witness protection scheme also be established.The need for police reforms for better and more effectiveinvestigation and prosecution has also been universally felt forsome time now and measures regarding the same need to be takenon a priority basis.

7.1.4 In the last decade, the Supreme Court has on numerousoccasions expressed concern about arbitrary sentencing in deathpenalty cases. The Court has noted that it is difficult to distinguishcases where death penalty has been imposed from those wherethe alternative of life imprisonment has been applied. In the Court’sown words “extremely uneven application of Bachan Singh hasgiven rise to a state of uncertainty in capital sentencing law whichclearly falls foul of constitutional due process and equality”principle.The Court has also acknowledged erroneous impositionof the death sentence in contravention of Bachan Singhguidelines. Therefore, the constitutional regulation of capitalpunishment attempted in Bachan Singh has failed to prevent death“”sentences from being arbitrarily and freakishly imposed.

7.1.5 There exists no principled method to remove sucharbitrariness from capital sentencing. A rigid, standardization orcategorization of offences which does not take into account thedifference between cases is arbitrary in that it treats differentcases on the same footing. Anything less categorical, like theBachan Singh framework itself, has demonstrably and admittedlyfailed.

7.1.6 Numerous committee reports as well as judgments ofthe Supreme Court have recognized that the administration ofcriminal justice in the country is in deep crisis. Lack of resources,outdated modes of investigation, over-stretched police force,ineffective prosecution, and poor legal aid are some of the problemsbesetting the system. Death penalty operates within this context A

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and therefore suffers from the same structural and systemicimpediments. The administration of capital punishment thusremains fallible and vulnerable to misapplication. The vagaries ofthe system also operate disproportionately against the socially andeconomically marginalized who may lack the resources toeffectively advocate their rights within an adversarial criminaljustice system.

7.1.7 Clemency powers usually come into play after a judicialconviction and sentencing of an offender. In exercise of theseclemency powers, the President and Governor are empowered toscrutinize the record of the case and differ with the judicial verdicton the point of guilt or sentence. Even when they do not so differ, they are empowered to exercise their clemency powers toameliorate hardship, correct error, or to do complete justice in acase by taking into account factors that are outside and beyondthe judicial ken. They are also empowered to look at fresh evidencewhich was not placed before the courts. (Kehar Singh v. Unionof India-(1989) 1 SCC 204 paras 7,10 & 16) Clemency powers,while exercisable for a wide range of considerations and on proteanoccasions, also function as the final safeguard against possibilityof judicial error or miscarriage of justice. This casts a heavyresponsibility on those wielding this power and necessitates a fullapplication of mind, scrutiny of judicial records, and wide-ranginginquiries in adjudicating a clemency petition, especially one froma prisoner under a judicially confirmed death sentence who is onthe very verge of execution. Further, the Supreme Court inShatrughan Chauhan v. Union of India- (2014) 3 SCC1 -paras55-56) has recorded various relevant considerations which aregone into by the Home Ministry while deciding mercy petitions.

7.1.8 The exercise of mercy powers under Article 72 and161 have failed in acting as the final safeguard against miscarriageof justice in the imposition of the death sentence. The SupremeCourt has repeatedly pointed out gaps and illegalities in how theexecutive confirms that retaining the death penalty is not arequirement for effectively responding to insurgency, terror orviolent crime.

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B. Recommendation

7.2.1 The Commission recommends that measures suggestedin para 7.1.3 above, which include provisions for police reforms,witness protection scheme and victim compensation scheme shouldbe taken up expeditiously by the government.

7.2.2 The march of our own jurisprudence—from removingthe requirement of giving special reasons for imposing lifeimprisonment instead of death in 1955; to requiring special reasonsfor imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to rarest of rarecases – shows the direction in which we have to head.Informedalso by the expanded and deepened contents and horizons of theright to life and strengthened due process requirements in theinteractions between the state and the individual, prevailingstandards of constitutional morality and human dignity, theCommission feels that time has come for India to move towardsabolition of the death penalty.

7.2.3 Although there is no valid penological justification fortreating terrorism differently from other crimes, concern is oftenraised that abolition of death penalty for terrorism related offencesand waging war, will affect national security. However, given theconcerns raised by the law makers, the commission does not seeany reason to wait any longer to take the first step towards abolitionof the death penalty for all offences other than terrorism relatedoffences.

7.2.4 The Commission accordingly recommends that the deathpenalty be abolished for all crimes other than terrorism related”offences and waging war.

Having regard also to the said Report of the Law Commissionthat the constitutional regulation of capital punishment attempted inBachan Singh (supra) has failed to prevent death sentences from being“arbitrarily and freakishly imposed” and that capital punishment has failedto achieve any constitutionally valid penological goals, we are of theview that a time has come where we view the need for death penalty asa punishment, especially its purpose and practice.

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A24. It is also a matter of anguishing concern as to how publicdiscourse on crimes have an impact on the trial, conviction and sentencein a case. The Court’s duty to be constitutionally correct even when itsview is counter-majoritarian is also a factor which should weigh with theCourt when it deals with the collective conscience of the people or publicopinion. After all, the society’s perspective is generally formed by theBemotionally charged narratives. Such narratives need not necessarily belegally correct, properly informed or procedurally proper. As stated inReport No. 262 of the Law Commission …….”the Court plays a counter-majoritarian role in protecting individual rights against majoritarianimpulses. Public opinion in a given case may go against the values ofCrule of law and constitutionalism by which the Court is nonetheless bound”and as held by this Court in Santosh Bariyar (supra) public opinion orpeople’s perception of a crime is …….”neither an objective circumstancerelating to crime nor to the criminal”. In this context, we may alsoexpress our concern on the legality and propriety of the people engagingin a “trial” prior to the process of trial by the court. It has almost becomeDa trend for the investigating agency to present their version and create acloud in the collective conscience of the society regarding the crime andthe criminal. This undoubtedly puts mounting pressure on the courts atall the stages of the trial and certainly they have a tendency to interferewith the due course of justice.E

25. Till the time death penalty exists in the statute books, the burdento be satisfied by the Judge in awarding this punishment must be high.The irrevocable nature of the sentence and the fact that the death rowconvicts are, for that period, hanging between life and death are to beduly considered. Every death penalty case before the court deals with aFhuman life that enjoys certain constitutional protections and if life is tobe taken away, then the process must adhere to the strictest and highestconstitutional standards. Our conscience as judges, which is guided byconstitutional principles, cannot allow anything less than that.

26. These appeals are hence partly allowed, commuting the deathGsentence to life imprisonment.

DEEPAK GUPTA, J.

1. We have had the privilege of going through the erudite judgmentdelivered by our learned brother Justice Kurian Joseph. We are in fullagreement with all that is stated in the judgment except the followingHobservations in Para 23:

“Having regard also to the said Report of the Law Commissionthat the constitutional regulation of capital punishment attemptedin Bachan Singh v. State of Punjab, (1980) 2 SCC 684, has failedto prevent death sentences from being “arbitrarily and freakishlyimposed” and that capital punishment has failed to achieve anyconstitutionally valid penological goals, we are of the view that atime has come where we view the need for death penalty as apunishment, especially its purpose and practice”.

2. In our view, since the Constitution Bench in Bachan Singh v.State of Punjab[1], has upheld capital punishment, there is no need tore-examine the same at this stage.

Divya Pandey

Appeals partly allowed.

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