VIKAS CHAUDHARY versus THE STATE OF DELHI on 21 April 2023

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SUPREME COURT REPORTS

[2023] 4 S.C.R.

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VIKAS CHAUDHARY

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THE STATE OF DELHI

(Criminal Appeal No(s). 2276 of 2022)

BAPRIL 21, 2023

[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]

Sentence/Sentencing:

Imposition of a fixed term sentence of 30 years, withoutCremission – Correctness of – Victim aged 18 years, kidnapped forransom and on the same day was killed by strangulation, and thebody was burnt, to eliminate evidence – Pursuant to the commissionof murder, the accused regularly made ransom calls to the family –Trial court convicted all the accused persons u/ss. 302, 364A, 201,r/w s. 120B – Appellants-A-1 and A-2 also convicted u/s. 411 withDA-1 additionally u/ss. 420, 468 and 471 and sentenced to lifeimprisonment for the remainder of their natural life without anyparole, remission, or furlough before completing 30 years ofimprisonment – Upheld by the High Court – On appeal, held: Powerto impose “special” or “fixed term sentences” is with this CourtEand the High Court – Trial courts are foreclosed from imposingsuch a modified or specific term sentence, or life imprisonment forthe remainder of the convict’s life, as an alternative to death penalty– On basis of the report of the probation officer, report on nature ofwork done while in jail and a psychological and psychiatricevaluation report strong case made out in support of the appellants’Fprobability of reform and reintegration into society – Thus, thesentence awarded to both the appellants is modified to a minimumterm of 20 years actual imprisonment – Penal Code, 1860 – ss. 120B, 201, 302, 364 A, 411 – Code of Criminal Procedure, 1973 – s.433A.

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Special or fixed term sentence – Imposition of, as analternative to death penalty in serious crimes – Held: Power to imposespecial or fixed term sentence beyond the minimum sentencespecified in s. 433A CrPC reserved solely with High Courts andSupreme Court as per decision in *Sriharan’s case – Code ofHCriminal Procedure – s.433A.

Procedure to be followed – Offences where death penaltyproposed by prosecution – Role of trial court and State – Held:Trial court under obligation to balance aggravating and mitigatingcircumstances – Whereas, State must produce material disclosingpsychiatric and psychological evaluation of the accused (collectedbeforehand), and all objective materials whether favourable orunfavourable, as it is in a position to collect this information andfacilitate the court in arriving at a just sentence.

Partly allowing the appeals, the Court

HELD: 1.1 The appropriateness of imposing a punishment(termed as a special or fixed term sentence) in serious crimes,which carried, as a sentencing option, the death penalty (apartfrom life sentence), was considered by this court in Sriharan’scase. The majority decision, after considering the previousdecisions, held that the ratio in Swamy Shraddananda’s case wascorrect. It is clear that Sriharan, approved an alternative thirdsentencing option in cases where the accused are convicted ofserious and grave crimes which carried with it the option of capitalsentence. Realising that a life sentence per se can lead to earlyrelease of accused upon their undergoing the minimum sentenceprescribed under Section 433A, and highlighting that theasymmetry in state rules with respect to minimum incarcerationin different kinds of life sentences, this court decided to retain toitself (and the High Courts) the option of imposing what Sriharantermed as “special” or “fixed term sentences”. [Paras 16,17][762-A-B; 763-B-C]

*Union of India v. Sriharan @ Murugan & Ors. (2016)7 SCC 1 : [2015] 14 SCR 613 – relied on.

1.2. It is clear that the trial courts, are foreclosed fromimposing such a modified or specific term sentence, or lifeimprisonment for the remainder of the convict’s life, as analternative to death penalty. The court, when trying an offencepunishable by death penalty or life imprisonment, has merely thesetwo options. While the principles evolved in Sriharan’s case areclear, there are nevertheless issues which still remain unexploredand unresolved. Whenever the state proposes and urges forimposition of death sentence, it has to, per force provide material AB

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Ato facilitate the court to carry out the exercise of balancing theaggravating factors with the mitigating circumstances – the testpropounded in Bachan Singh and examined in many cases; therecent trend being that the reformative element acquires equalattention. The obligation to carry out this balancing interest isupon the courts imposing the sentence in the first instance, i.e.,Bthe trial courts; the prosecution (per Bachan Singh) is also underan obligation to show that the mitigating circumstances are absentespecially that there are no chances of reformation of the accused.Since this exercise is mandated whenever a heinous capital crimeis committed, at the stage of conviction, the court has no ideaCthat the prosecution may urge for capital sentence. When thatstage occurs, and the prosecution seeks a capital sentence, thecourt has to carry out the exercise of conducting a review ofaggravating circumstances (which are already on the record, beingfactors that lead to the conviction of the accused) and balancing the mitigating circumstances (which are not matters of the recordDand have to be adduced by the prosecution and the accused).[Para 18][763-G-H; 764-A-D]

1.3. The imperative to conduct evaluation of mitigatingcircumstances at the trial stage, “to avoid slipping into aretributive response to the brutality of the crime” which this courtEnoticed was frequently occurring in several cases, was underlined,and it was categorically held that the court had to elicit informationfrom the state and the accused. The prosecution also is mandatedto produce before the Sessions Court, material disclosingpsychiatric and psychological evaluation of the accused, which isFto preferably be collected beforehand. At the stage when the trialcourt is informed that the prosecution intends to press forimposition of capital sentence, the evaluation should be insistedupon; the state is under a duty to present all objective materials,as mentioned in Manoj’s case, having regard to the decision in Bachan Singh’s case and importantly, the fact that it is in a positionGto actually gather the materials. Its task is to present the facts-relating to the accused, which are favourable and unfavourable,for the court to impose a just sentence. [Para 20][767-G-H; 768-A-B]

1.4. Since the judgment in Sriharan’s case reserves theHpower to impose special or fixed term sentences (which may be

longer than the minimum specified in Section 433A CrPC-i.e.,may extend to considerably long periods, such as 30 years), withonly the high courts and this court, it is imperative that thisexercise is carried out even in cases where the accused mighteventually not be imposed the death sentence. To put it simply -although the trial courts are not empowered to impose such specialsentences, yet at the stage when they arrive at findings of guilt inthe case of a heinous offence, what would be the nature of thesentence imposed eventually, is unknown; therefore, theprosecution would have to inform the court, and present relevantmaterials, in case the death sentence is proposed. In that event,if ultimately death sentence is not imposed, it is open to the state(or the aggrieved party, under Section 372 CrPC) to appeal againstthe trial court judgment on the point of sentence; at that stagethe evaluation before the High Court would be nuanced, andinformed with full materials, about the convict, which otherwiseit would not have the benefit of. Further, if considerable time haselapsed since the trial stage at which this exercise wasundertaken, the appellate court should direct that a fresh attemptbe made, to take into account the contemporaneous progress, ifany, made by the convict. Wherever the prosecution is of theopinion that the crime an accused is convicted for, is so gravethat death sentence is warranted, it should carry out the exerciseof placing the materials, in terms of Manoj’s case. In case thisresults in imposition of death sentence, at the stage ofconfirmation, the High Court would have the benefit ofindependent evaluation of these materials. On the other hand, ifdeath sentence is not imposed, then, the High Court may still bein a position to evaluate, if the sentence is adequate, and whereverappropriate and just, impose a special or fixed term sentence, inthe course of an appeal by the State or by the complainant/informant. Given the imperative need for such material to form apart of the court’s consideration, it has to be emphasized that incase the trial court has failed to carry out such exercise (forwhatever reason), the High Court has to call for such materialwhile considering an appeal filed by the State or complainant forenhancement of sentence (whether resulting in imposition ofcapital punishment, or a term sentence). [Paras 21, 22][768-C-H; 769-A-B]

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A1.5. There was limited material regarding the mitigatingcircumstances of the appellants; existing jail reports and probationofficer reports, were also outdated. So, this court directed thepreparation and submission of three reports, to facilitate fairerconsideration of the question of sentence. These were: a reportof the probation officer, report on nature of work done while inBjail (by the jail administration), and a psychological and psychiatricevaluation report (by Director of VIMHANS); these are on record,and form part of this court’s consideration, to ascertain theindividualised sentences appropriate in the present case. TheCounsel placed on record, written submissions outlining theCmitigating factors and justification for a modification, on thequestion of sentence. [Para 24][769-E-F; 770-A-B]

1.6. The sole motive for this crime seems to have beengreed. Undoubtedly, there was premeditation in the commissionof the crime. These are the aggravating circumstances. [ParaD27][771-D-E]

1.7. Both the appellants in the instant case, share somecommonalities: they were of young age at the time of offence,hail from educated backgrounds, and they continue to enjoy thelove and affection of their families, each of which have a goodEstanding and strong ties within the communities they live in.While the material relating to their lives and social conditionspre-conviction do not offer an explanation as to the cause forcommission of offence, it can certainly be said that the materialavailable regarding their conduct post-conviction, remainsencouraging. They have applied themselves during the time ofFincarceration and used their time to contribute meaningfull-forwhich they have each received commendations. Theirpsychological and psychiatric evaluations were concluded to benormal, without cause for concern. A strong case is made out insupport of the appellants’ probability of reform (as alreadyGevidenced by their jail conduct), and reintegration into society.The State, too, has not indicated any material to the contrary,regarding this aspect. [Para 28][771-E-H]

1.8. In view of the totality of the facts and circumstances, itwould be appropriate to modify the sentence awarded to both H

appellants to a minimum term of 20 years actual imprisonment.[Para 29][771-H; 772-A]

Amit v. State of Maharashtra (2003) 8 SCC 93 : [2003]Supp. 2 SCR 285; Laxman Naskar v. West Bengal(2000) 7 SCC 626 : [2000] Supp. 3 SCR 62; RajendraPrahladrao Wasnik v. State of Maharashtra (2019) 12SCC 460 : [2018] 14 SCR 585; Swamy Shraddanandav. State of Karnataka (2008) 13 SCC 767 : [2008] 11SCR 93; Santosh Kumar Satishbhushan Bariyar v. Stateof Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90;State of Haryana v. Jagdish (2010) 4 SCC 216 : [2010]3 SCR 716; Ramesh v. State of Rajasthan (2011) 3 SCC685 : [2011] 4 SCR 585; Birju v. State of MP (2014) 3SCC 421 : [2014] 1 SCR 1047; Shankar KisanraoKhade v. State of Maharashtra (2013) 5 SCC 546 :[2013] 6 SCR 949; Anil @ Anthony Arikswamy Josephv. State of Maharashtra (2014) 4 SCC 69 : [2014] 3SCR 34; Raju Jagdish Paswan v. State of Maharashtra(2019) 16 SCC 380; Satish @ Sabbe v. State of UP 2020SCC OnLine SC 791; Mohd Firoz v. State of MP (2022)7 SCC 433; Arvind Singh v. State of Maharashtra(2021) 11 SCC 1; Gauri Shankar v. State of Punjab(2021) 3 SCC 380; Bachan Singh v. Union of India(1980) 2 SCC 684 : [1983] 1 SCR 145; Machhi Singhv. State of Punjab (1983) 3 SCC 470 : [1983] 3 SCR413; Gopal Vinayak Godse v. State of Maharashtra[1961] 3 SCR 440; Dalbir Singh v. State of Punjab(1979) 3 SCC 745 : [1979] 3 SCR 1059; SubashChander v. Krishan Lal (2001) 4 SCC 458 : [2001] 2SCR 864; Shri Bhagwan v. State of Rajasthan (2001) 6SCC 296 : [2001] 3 SCR 656; State of Madhya Pradeshv. Ratan Singh (1976) 3 SCC 470 : [1976] Supp. 1 SCR552; Manoj v. State of Madhya Pradesh (2023) 2 SCC353: [2022] 9 SCR 452; Chhannu Lal Verma v. State ofChhattisgarh (2019) 12 SCC 438 : [2018] 14 SCR 355– referred to.

Case Law Reference

[2003] Supp. 2 SCR 285

referred to

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[2023] 4 S.C.R.

From the Judgment and Order dated 31.10.2018 of the High Courtof Delhi at New Delhi in CRLA No.319 of 2018.

WithCriminal Appeal No.2277 of 2022.H

Vivek Sood, Ms. Meenakshi Arora, Sr. Advs., Gopal Jha, AkashGodhvani, Ms. Tanvi Atree, Anuj Chauhan, Anand, Sanket, KrishanKumar, Mohit D. Ram, Ms. Sunita Arora, Monisha Handa, RajulShrivastav, Shivam Dedi, Ms. Gargi Singh, Anubhav Sharma, Advs. forthe Appellant.

Chirag M. Shroff, Shailendra P. Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. The limited question on which this Court issued notice[1] was toconsider the correctness of the sentence imposed on the accused/appellants. The appellants’ grievance is with the imposition of a fixedterm sentence of 30 years, without remission, by the trial court, whichwas affirmed by the impugned judgment[2] passed by the Delhi High Court.

2. The facts of the case briefly are that the deceased (aged 18-20years), had been kidnapped for ransom on 18.01.2003. On the same dayitself, he was killed by strangulation, and the body was burnt, to eliminateevidence. The deceased’s father (complainant) filed a ‘missing personreport’ with the police on 18.01.2003 itself, after which he received sixransom calls (on 19.01.2003, 20.01.2003, 01.02.2003, 02.02.2003,10.03.2003, 11.03.2003) from different people, seeking money in exchangefor information about his son’s whereabouts, and his safety. By trackingof call records, a link was established first with A-1, who disclosedinvolvement of A-2 and A-3. A gold chain belonging to the deceased,and a motorcycle on which the deceased was last seen, were recoveredat the behest of A-1; the deceased’s wristwatch, and a black mufflerused to strangle him, were recovered from A-2. A-1’s disclosure alsoled to recovery of the car used to abduct, and in which the deceased hadbeen strangulated. Evidence collected against them included voicesamples to compare ransom call recordings, and identification by PW-7,PW-2, and others as to the deceased last being seen with them. On09.05.2003, the three accused persons disclosed where the dead bodyhad been dumped, but the same could not be recovered. Uponinvestigation, it was found that another police station, in which jurisdiction 1 Order dated 09.05.2019, in SLP (Crl) D. No. 5964/2019, with Special Leave toAppeal (Crl) No. 3129/2019.

2 Order dated 31.10.2018 passed by the Delhi High Court in Crl. Appeal No. 319/2018.

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Athe nala fell, had recovered a half-burned dead body on 19.01.2003itself (i.e., one day after abduction). This was identified by the father, tobe that of the deceased. 41 prosecution witnesses were examined overthe course of 11 years, and 8 defence witnesses.

3. The trial court[3] convicted the three accused persons for theBcommission of offence under Sections 302, 364A, 201, read with Section120B IPC. A-1 and A-2 (present appellants) were also convicted underSection 411, with A-1 additionally being convicted for offences punishableunder Sections 420, 468 and 471 IPC. They were sentenced to lifeimprisonment for the remainder of their natural life, and an additionalcondition was imposed on A-1 and A-2 - that they would not be entitledCto any parole, remission, or furlough, before completing 30 years ofimprisonment. They were also sentenced to each pay 2,10,000 asfine, and 4,00,000 as compensation to the victim’s family.

4. The High Court, by its common impugned judgment, on anappreciation of the facts at hand, acquitted A-3 Joginder @ Mintu of allDcharges; and acquitted the present appellants only for offence underSection 411, but affirmed their conviction for other offences, as well asthe corresponding sentence imposed by the trial court. Aggrieved by theimpugned judgment, A-1 and A-2 have approached this court, challengingboth the conviction and sentence; this court issued notice on the limitedEquestion of sentence.

Appellants’ contentions

Appellants’ contentions

5. Ms. Meenakshi Arora, learned senior counsel, appearing forthe appellants, placed strong emphasis on this court’s decision in Unionof India v. Sriharan @ Murugan &Ors.[4], which categorically heldFthat it was outside the jurisdiction of the trial court, to provide a specificterm punishment or till the end of ordinary life, as an alternative to thedeath penalty. It was urged that this aspect, however, was overlookedby the High Court – which was reason enough to set aside the erroneousdecision.G6. It was urged that the High Court had, in its impugned judgment,while dismissing the appeal on conviction, also rejected the argumentsmade on sentencing, without proper consideration. Reliance was placedon Section 386(b)(ii) and (iii) of the CrPC to argue that adjudication and3 Sessions Case No. 130/2014 - Orders dated 13.11.2017 (conviction) and 23.12.2017(sentence)H4 [2015] 14 SCR 613: (2016) 7 SCC 1 (hereafter ‘Sriharan’)

examination of the order on sentence was still necessary, even whenorder of conviction has been upheld or modified under Section 386(b)(i);the appellate court had to specifically hear the accused on the quantumand nature of sentence imposed. While doing so, it is imperative to callfor the report by the Officer under the Probation of Offenders Act, and/or psychological assessment report, to adjudicate the same.

7. Ms. Arora submitted that weight had to be given to mitigatingcircumstances, to guide sentencing discretion; relevant factors being –age at which the offence was committed, likelihood of convict reformingin jail, etc. Reliance was placed on this court’s decisions in Amit v. Stateof Maharashtra[5]and Laxman Naskar v. West Bengal[6]. Counselsubmitted that there was strong evidence supporting good and normalsocial behaviour, reformation, and possibility of reintegration into society,as per the probation officer’s report, jail conduct report, and psychologist’sreport – all of which were prepared in compliance of this court’s orders.That the appellants had no criminal antecedents was also a factor intheir favour. It was pointed out that the appellant Vikas Chaudhary, wasbelow 18 years of age at the time of kidnapping and murder but hadattained majority during the alleged ransom calls. Therefore, the benefitof juvenile was denied to him, and the conviction was based solely oncircumstantial evidence.

8. Counsel also relied on judgments of this court, which elaboratedon sentencing policy in the case of imposing death penalty. In RajendraPrahladrao Wasnik v. State of Maharashtra[7], a three-judge bench ofthis court emphasised the importance of determining whether the accused,notwithstanding their crime, can be reformed, rehabilitated, andreintegrated, and that the activity of obtaining this information is essential,and must be undertaken. It was argued that the mitigating circumstances,and report of the probation officer were neither considered by the trialcourt, nor High Court. Counsel stressed on the importance of the theoryof reformation through punishment and submitted that the specialcategory of sentence for serious crimes where death sentence issubstituted with life imprisonment for a fixed number of years (as evolvedin Swamy Shraddananda (2) v. State of Karnataka[8], and upheld in 5 [2003] Supp. 2 SCR 285: (2003) 8 SCC 93 [para 10]

6 [2000] Supp. 3 SCR 62: (2000) 7 SCC 626 [para 6]

7 [2018] 14 SCR 585: (2019) 12 SCC 460 [para 47] (hereafter ‘Rajendra PrahladraoWasnik’)

8 [2008] 11 SCR 93: (2008) 13 SCC 767 [para 94-95] (hereafter ‘Swamy Shraddananda’)

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ASriharan), still requires consideration of these factors. Reliance wasalso placed on Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra[9], State of Haryana v. Jagdish[10], Ramesh v. State ofRajasthan[11], Birju v. State of MP[12], Shankar Kisanrao Khade v.State of Maharashtra[13], Anil @ Anthony Arikswamy Joseph v. Stateof Maharashtra[14], Raju Jagdish Paswan v. State of Maharashtra[15],BSatish @ Sabbe v. State of UP[16], and Mohd Firoz v. State of MP[17].

State’s contentions

9. Mr. Chirag M. Shroff, learned counsel for the State, contendedthat the conviction based on concurrent findings, and sentence imposedCwas commensurate in the present case, which was a cold-blooded murder.It was submitted that the act of abduction committed in a clandestinemanner and the thought process that guided the series of events, wasexecuted with preplanning and premeditation. This was evidenced bythe fact that the deceased was murdered on 19.01.2003, and the familywas made to believe that their son was alive, and in view of which theyDregularly demanded ransom from the family. Reliance was placed onArvind Singh v. State of Maharashtra[18]for the submission that if amere threat for the purpose of ransom or otherwise becomes reality,and the victim is done to death, then if the sessions court had passed aspecified sentence which is upheld by the High Court, intervention bythis court was unwarranted.E

10. It was pointed out that the gruesome nature of the murder ofa minor victim (nearly 18 years), despite the appellants being educatedand belonging to well-to-do families, reflected that they were well awareand had full knowledge of their actions – of kidnapping, murder, andFfinally, disposing of the body by burning and dumping the remains in a 9 [2009] 9 SCR 90: (2009) 6 SCC 498 [para 127-128] (hereafter ‘Santosh KumarSatishbhushan Bariyar’)10 [2010] 3 SCR 716: (2010) 4 SCC 216 [para 41, 44-46]11 [2011] 4 SCR 585: (2011) 3 SCC 685 [para 66, 69, 76]12 [2014] 1 SCR 1047: (2014) 3 SCC 421 [para 20]G13 [2013] 6 SCR 949: (2013) 5 SCC 54614 [2014] 3 SCR 34: (2014) 4 SCC 69 [para 33] (hereafter ‘Anil @ Anthony ArikswamyJoseph’)15 (2019) 16 SCC 380 [para 20]16 2020 SCC OnLine SC 791 [para 13]17 (2022) 7 SCC 433 [para 60]18 (2021) 11 SCC 1 [para 94, 98, 101, 102]H

pond. These circumstances, it was argued, justified that this was a cold-blooded murder, which fell within the gravest of grave category of cases.

11. Counsel conceded that this court in Sriharan (supra) heldthat only the High Court or Supreme Court had the power to pass asentence in excess of life imprisonment, but lesser than capital punishment;however, it was pointed out that this court had also denied in thatjudgment, the proposition that the court awarding punishment shouldmerely impose the punishment of death or life imprisonment, as prescribedin the CrPC. Therefore, merely because the sessions court had exercisedsuch power, did not vitiate the sentence altogether. Instead, it wascontended that the fact that the High Court had affirmed the sentence,meant the spirit of the law laid down in Sriharan (supra) had been giveneffect to. Reliance was placed on Gauri Shankar v. State of Punjab[19]wherein in view of the grotesque nature of the crime, this court hadupheld the session’s court order on sentencing, which had been passedin excess of the scope of its powers.

12. Mr. Shroff also submitted that the VIMHANS report submittedpursuant to this court’s directions, was a neutral report which could notbe relied on as demonstrating ‘mitigating circumstances’ as it cannotspeak to the mental state of the appellants, at the time of commission ofthe offences. It does not necessarily support any prospect of rehabilitationor reformation.

Analysis and Reasoning

13. In Bachan Singh v. Union of India[20], this court upheld theimposition of capital sentence, subject to the caveat that it should beinvoked in the rarest of rare cases. The court, in its later judgmentssought to evolve a principled approach towards capital sentencing. InMachhi Singh v. State of Punjab[21]this court, building upon theobservations in Bachan Singh, observed that a balance sheet of“aggravating and mitigating circumstances” needs to be drawn where“mitigating circumstances have to be accorded full weightage anda just balance has to be struck between the aggravating and themitigating circumstances before the option is exercised”. The courtalso laid down a broad two-pronged approach:

19 (2021) 3 SCC 380

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

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

14. During the last two decades or so, however, the capitalsentencing decisions adopted no symmetrical approach; this led to thecourt to lament, on more than one occasion, that the exercise of consideringaggravating and mitigating circumstances (which Bachan Singh hadChighlighted) had become more of a formality. In Santosh KumarSatishbhushan Bariyar (supra), this court enunciated a two-step processto decide whether a convict deserved the death sentence: first, that thecase belonged to the “rarest of rare” category, and second, that theoption of life imprisonment would simply not suffice. The aggravatingDand mitigating circumstances – according to the first step, were to beidentified and considered equally. The court, in the second step, was toconsider whether the alternative of life imprisonment was unquestionablyforeclosed as the sentencing aim of reformation was unattainable, forwhich the State was obliged to provide material. In Shankar KisanraoKhade (supra) the court fashioned ‘the crime’; ‘the criminal’ and ‘theER&R test’ (rarest of rare test) which emphasized the need to lookintensively into all factors. This court also highlighted that in manyprevious decisions, sentencing was resorted to without consideringmitigating circumstances, and without any material on the possibilityof reformation of the convict.

FThe decision in Sriharan

15. In Swamy Shraddananda (supra) this court had to decidethe appropriate sentence to be imposed in a case, where two judges haddiffered on the issue of imposition of capital sentence. The courtconsidered its previous Constitution Bench ruling in Gopal VinayakGGodse v. State of Maharashtra[22], observations in other judgments (suchas Dalbir Singh v. State of Punjab[23], Subash Chander v. KrishanLal[24]; Shri Bhagwan v. State of Rajasthan[25]; State of Madhya22 [1961] 3 SCR 44023 [1979] 3 SCR 1059: (1979) 3 SCC 74524 [2001] 2 SCR 864: (2001) 4 SCC 458H25 [2001] 3 SCR 656: (2001) 6 SCC 296

Pradesh v. Ratan Singh[26]and other cases). The court had, in SwamyShraddananda (supra), observed as follows [SCR, p. 143-144]:

“65. […] The legal position as enunciated in Kishori Lal v.King Emperor, (1945) 58 LW 251 , Gopal Vinayak Godse v.State of Maharashtra, (1961) 3 SCR 440; Maru Ram v. Unionof India, (1981) 1 SCR 1196; State of M.P. v. Ratan Singh,(1976) 3 SCC 470 and Shri Bhagwan v. State of Rajasthan,(2001) 6 SCC 296 and the unsound way in which remission isactually allowed in cases of life imprisonment make out avery strong case to make a special category for the very fewcases where the death penalty might be substituted by thepunishment of imprisonment for life or imprisonment for aterm in excess of fourteen years and to put that categorybeyond the application of remission.

66. 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 highlydisproportionately inadequate. When an appellant comes tothis Court carrying a death sentence awarded by the trialcourt and confirmed by the High Court, this Court may find,as in the present appeal, that the case just falls short of therarest of the rare category and may feel somewhat reluctantin endorsing the death sentence. But at the same time, havingregard to the nature of the crime, the Court may strongly feelthat a sentence of life imprisonment subject to remissionnormally works out to a term of 14 years would be grosslydisproportionate and inadequate. What then should the Courtdo? If the Court’s option is limited only to two punishments,one a sentence of imprisonment, for all intents and purposes,of not more than 14 years and the other death, the Court mayfeel tempted and find itself nudged into endorsing the deathpenalty. Such a course would indeed be disastrous. A far morejust, 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 primarily 26 [1976] Supp. 1 SCR 552: (1976) 3 SCC 470

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Abecause in the facts of the case, the sentence of 14 years’imprisonment would amount to no punishment at all.”

16. The appropriateness of imposing a punishment (termed as aspecial or fixed term sentence) in serious crimes, which carried, as asentencing option, the death penalty (apart from life sentence), wasBconsidered by this court in Sriharan. The majority decision, afterconsidering the previous decisions, held that the ratio in SwamyShraddananda (supra) was correct. Commenting on the decision inSwamy Shraddananda, the court held in Sriharan that [SCR, p. 701;and 710-711]:

C“87. […] What all it seeks to declare by stating so was thatwithin the prescribed limit of the punishment of lifeimprisonment, having regard to the nature of offencecommitted by imposing the life imprisonment for a specifiedperiod would be proportionate to the crime as well as theinterest of the victim, whose interest is also to be taken careDof by the Court, when considering the nature of punishmentto be imposed.

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104. We, therefore, reiterate that the power derived from theEPenal Code for any modified punishment within thepunishment provided for in the Penal Code for such specifiedoffences can only be exercised by the High Court and in theevent of further appeal only by the Supreme Court and notby any other court in this country. To put it differently, thepower to impose a modified punishment providing for anyFspecific term of incarceration or till the end of the convict’slife as an alternate to death penalty, can be exercised only bythe High Court and the Supreme Court and not by any otherinferior court.

105. Viewed in that respect, we state that the ratio laid downGin Swamy Shraddananda (2) v. State of Karnataka, (2008)13 SCC 767] that a special category of sentence; instead ofdeath; for a term exceeding 14 years and put that categorybeyond application of remission is well founded and weanswer the said question in the affirmative. We are, therefore,not in agreement with the opinion expressed by this Court inH

Sangeet v. State of Haryana, (2013) 2 SCC 452 that thedeprival of remission power of the appropriate Governmentby awarding sentences of 20 or 25 years or without anyremission as not permissible is not in consonance with thelaw and we specifically overrule the same.”

17. It is thus clear that Sriharan (supra), approved an alternativethird sentencing option in cases where the accused are convicted ofserious and grave crimes which carried with it the option of capitalsentence. Realising that a life sentence per se can lead to early releaseof accused upon their undergoing the minimum sentence prescribed underSection 433A, and highlighting that the asymmetry in state rules withrespect to minimum incarceration in different kinds of life sentences,this court decided to retain to itself (and the High Courts) the option ofimposing what Sriharan termed as “special” or “fixed term sentences”.This was seen as serving the following purposes:

(a) As a feasible alternative in capital cases where the Courtwas of the opinion that death sentence is inappropriate, and:

(b) That the Court was of the opinion that there were elementsin the crime and or the conduct of the criminal whichwarranted imposition of a mandatory sentence beyond aminimum of 14 years prescribed by the Code of CriminalProcedure.

(c) Where the court felt, independently, that the serious natureof the crime and the manner of its commission warranted aspecial sentence, whereby the state’s discretion in releasingthe offender, should be curtailed so that the convict is notlet out before undergoing a specified number of years, ofincarceration.

18. It is hence clear that the trial courts, are foreclosed fromimposing such a modified or specific term sentence, or life imprisonmentfor the remainder of the convict’s life, as an alternative to death penalty.The court, when trying an offence punishable by death penalty or lifeimprisonment, has merely these two options. While the principles evolvedin Sriharan (supra) are clear, there are nevertheless issues which stillremain unexplored and unresolved. Whenever the state proposes andurges for imposition of death sentence, it has to, per force provide materialto facilitate the court to carry out the exercise of balancing the aggravating A

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Afactors with the mitigating circumstances – the test propounded inBachan Singh and examined in many cases; the recent trend being thatthe reformative element acquires equal attention. The obligation to carryout this balancing interest is upon the courts imposing the sentence in thefirst instance, i.e., the trial courts; the prosecution (per Bachan Singh)is also under an obligation to show that the mitigating circumstances areBabsent[27]especially that there are no chances of reformation of theaccused. Since this exercise is mandated whenever a heinous capitalcrime is committed, at the stage of conviction, the court has no idea thatthe prosecution may urge for capital sentence. When that stage occurs,and the prosecution seeks a capital sentence, the court has to carry outCthe exercise of conducting a review of aggravating circumstances (whichare already on the record, being factors that lead to the conviction ofthe accused) and balancing the mitigating circumstances (which arenot matters of the record and have to be adduced by the prosecutionand the accused).

D19. This court, in Manoj v. State of Madhya Pradesh[28],considered the judgments reported as Rajendra Prahladrao Wasnik(supra), Chhannu Lal Verma v. State of Chhattisgarh[29], Anil @Anthony Arikaswamy Joseph (supra) and several other decisions, theLaw Commission’s reports, and held that [SCR, p. 573-576]:

E27 The observations in Bachan Singh, listing mitigating factors are that “(1) That the offence was committed under the influence of extreme mental oremotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not besentenced todeath.

F(3) The probability that the accused would not commit criminal acts of violenceas would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. TheState shall by evidence prove that the accused does not satisfy the conditions 3 and 4above.

(5) That in the facts and circumstances of the case the accused believed that hewas morally justified in committing the offence.G(6) That the accused acted under the duress or domination of another person,

(7) That the condition of the accused showed that he was mentally defective and that thesaid defect impaired his capacity to appreciate the criminality of his conduct.”28 [2022] 9 SCR 452: (2023) 2 SCC 353

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“212. The goal of reformation is ideal, and what society muststrive towards – there are many references to it peppered inthis court’s jurisprudence across the decades – but what islacking is a concrete framework that can measure andevaluate it. Unfortunately, this is mirrored by the failure toimplement prison reforms of a meaningful kind, which hasleft the process of incarceration and prisons in general, to bea space of limited potential for systemic reformation. The goalof reformative punishment requires systems that activelyenable reformation and rehabilitation, as a result of nuancedpolicy making. As a small step to correct these skewed resultsand facilitate better evaluation of whether there is a possibilityfor the accused to be reformed (beyond vague references toconduct, family background, etc.), this court deems itnecessary to frame practical guidelines for the courts to adoptand implement, till the legislature and executive, formulate acoherent framework through legislation. These guidelines mayalso offer guidance or ideas, that such a legislative frameworkcould benefit from, to systematically collect and evaluateinformation on mitigating circumstances.

Practical guidelines to collect mitigating circumstances

213. There is urgent need to ensure that mitigatingcircumstances are considered at the trial stage, to avoidslipping into a retributive response to the brutality of the crime,as is noticeably the situation in a majority of cases reachingthe appellate stage.

214. To do this, the trial court must elicit information from theaccused and the state, both. The state, must - for an offencecarrying capital punishment - at the appropriate stage,produce material which is preferably collected beforehand,before the Sessions Court disclosing psychiatric andpsychological evaluation of the accused. This will helpestablish proximity (in terms of timeline), to the accusedperson’s frame of mind (or mental illness, if any) at the timeof committing the crime and offer guidance on mitigatingfactors (1), (5), (6) and (7) spelled out in Bachan Singh. Evenfor the other factors of (3) and (4) - an onus placed squarelyon the state – conducting this form of psychiatric and ABC

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psychological evaluation close on the heels of commission ofthe offence, will provide a baseline for the appellate courtsto use for comparison, i.e., to evaluate the progress of theaccused towards reformation, achieved during theincarceration period.

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215. Next, the State, must in a time-bound manner, collectadditional information pertaining to the accused. Anillustrative, but not exhaustive list is as follows:

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a) Age

b) Early family background (siblings, protection of parents,any history of violence or neglect)

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c) Present family background (surviving family members,whether married, has children, etc.)

d) Type and level of education

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e) Socio-economic background (including conditions ofpoverty or deprivation, if any)

f) Criminal antecedents (details of offence and whetherconvicted, sentence served, if any)

g) Income and the kind of employment (whether none, orEtemporary or permanent etc); h) Other factors such as history of unstable social behaviour,or mental or psychological ailment(s), alienation of theindividual (with reasons, if any) etc. This information shouldmandatorily be available to the trial court, at the sentencingstage. The accused too, should be given the same opportunityto produce evidence in rebuttal, towards establishing allmitigating circumstances.

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216. Lastly, information regarding the accused’s jail conductand behaviour, work done (if any), activities the accused hasGinvolved themselves in, and other related details should becalled for in the form of a report from the relevant jailauthorities (i.e., probation and welfare officer, superintendentof jail, etc.). If the appeal is heard after a long hiatus fromthe trial court’s conviction, or High Court’s confirmation, asthe case may be – a fresh report (rather than the one used by H

the previous court) from the jail authorities is recommended,for an more exact and complete understanding of thecontemporaneous progress made by the accused, in the timeelapsed. The jail authorities must also include a freshpsychiatric and psychological report which will furtherevidence the reformative progress, and reveal post-convictionmental illness, if any.

217. It is pertinent to point out that this court, in Anil v Stateof Maharashtra has in fact directed criminal courts, to callfor additional material:

“Many a times, while determining the sentence, the courtstake it for granted, looking into the facts of a particularcase, that the accused would be a menace to the societyand there is no possibility of reformation and rehabilitation,while it is the duty of the court to ascertain those factors,and the State is obliged to furnish materials for and againstthe possibility of reformation and rehabilitation of theaccused. The facts, which the courts deal with, in a givencase, cannot be the foundation for reaching such aconclusion, which, as already stated, calls for additionalmaterials. We, therefore, direct that the criminal courts,while dealing with the offences like Section 302 IPC, afterconviction, may, in appropriate cases, call for a report todetermine, whether the accused could be reformed orrehabilitated, which depends upon the facts andcircumstances of each case.”

We hereby fully endorse and direct that this should beimplemented uniformly, as further elaborated above, forconviction of offences that carry the possibility of deathsentence.”

20. The imperative to conduct evaluation of mitigatingcircumstances at the trial stage, “to avoid slipping into a retributiveresponse to the brutality of the crime” which this court noticed wasfrequently occurring in several cases, was underlined, and it wascategorically held that the court had to elicit information from the stateand the accused. The prosecution also is mandated to produce beforethe Sessions Court, material disclosing psychiatric and psychologicalevaluation of the accused, which is to preferably be collected beforehand.

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AAt the stage when the trial court is informed that the prosecution intendsto press for imposition of capital sentence, the evaluation should be insistedupon; the state is under a duty to present all objective materials, asmentioned in Manoj (supra), having regard to the decision in BachanSingh (supra) and importantly, the fact that it is in a position to actuallygather the materials. Its task is to present the facts- relating to the accused,Bwhich are favourable and unfavourable, for the court to impose a justsentence.

21. Since the judgment in Sriharan (supra) reserves the power toimpose special or fixed term sentences (which may be longer than theminimum specified in Section 433A CrPC – i.e., may extend toCconsiderably long periods, such as 30 years), with only the high courtsand this court, it is imperative that this exercise is carried out even incases where the accused might eventually not be imposed the deathsentence. To put it simply - although the trial courts are not empoweredto impose such special sentences, yet at the stage when they arrive atDfindings of guilt in the case of a heinous offence, what would be thenature of the sentence imposed eventually, is unknown; therefore, theprosecution would have to inform the court, and present relevant materials(as elaborated in Manoj), in case the death sentence is proposed. Inthat event, if ultimately death sentence is not imposed, it is open to thestate (or the aggrieved party, under Section 372 CrPC) to appeal againstEthe trial court judgment on the point of sentence; at that stage theevaluation before the High Court would be nuanced, and informed withfull materials, about the convict, which otherwise it would not have thebenefit of. Further, if considerable time has elapsed since the trial stageat which this exercise was undertaken, the appellate court should direct Fthat a fresh attempt be made, to take into account the contemporaneousprogress, if any, made by the convict[30].

22. In view of the above discussion, it is held that wherever theprosecution is of the opinion that the crime an accused is convicted for,is so grave that death sentence is warranted, it should carry out theGexercise of placing the materials, in terms of Manoj, for evaluation. Incase this results in imposition of death sentence, at the stage ofconfirmation, the High Court would have the benefit of independentevaluation of these materials. On the other hand, if death sentence is notimposed, then, the High Court may still be in a position to evaluate, if the sentence is adequate, and wherever appropriate and just, impose a specialor fixed term sentence, in the course of an appeal by the state or by thecomplainant/informant. Given the imperative need for such material toform a part of the court’s consideration, it has to be emphasized that incase the trial court has failed to carry out such exercise (for whateverreason), the High Court has to call for such material while consideringan appeal filed by the state or complainant for enhancement of sentence(whether resulting in imposition of capital punishment, or a term sentence).

Sentence in the present case

23. Recently, this court, on three previous occasions, was facedwith a similar situation – wherein the trial court had sentenced the accusedto undergo life imprisonment for the remainder of their life[31], or withoutentitlement to remission for a fixed term (of not less than 20 years)[32].This, in light of the judgment in Sriharan (supra) was clearly beyond thescope of jurisdiction that the trial court is empowered with. However,the High Courts in each of the three cases, had affirmed the convictionand sentence. In these cases, the offending part of the life imprisonmentsentence (i.e., remainder of life, or fixed term without entitlement ofremission) was either set aside, and life imprisonment simplicitor wasimposed[33], or based on the facts and circumstances, modified to a termsentence[34].

24. During the course of hearing this matter, it was noticed thatthere was limited material regarding the mitigating circumstances of theappellants; existing jail reports and probation officer reports, were alsooutdated. So, on 05.08.2021, this court directed the preparation andsubmission of three reports, to facilitate fairer consideration of the questionof sentence. These were: a report of the probation officer, report onnature of work done while in jail (by the jail administration), and apsychological and psychiatric evaluation report (by Director of 31 Narendra Singh @ Mukesh @ Bhura Vs. The State of Rajasthan SLP (Crl.) No.7830/2021, dd 28.02.2022 https://main.sci.gov.in/supremecourt/2021/13046/13046_2021_43_21_33781_Order_28-Feb- 2022.pdf;Baljeet Singh @ Jeeta v. State ofHaryana SLP (Crl.) No. 11787-11788/2019, dd 02.08.2022 https://main.sci.gov.in/supremecourt/2018/36451/36451_2018_4_3_36998_Order_02-Aug- 2022.pdf.

32 Manohar @ Manu v. The State of KarnatakaCrl. Appeal No.564 of 2021, dd 06.07.2021-https://main.sci.gov.in/supremecourt/2021/5351/5351_2021_39_15_28288_Order_06Jul- 2021.pdf 33 Narendra Singh @ Mukesh @ Bhura (see n 31) and Manohar @ Manu (see n 32).

34 Baljeet Singh @ Jeeta (see n 31).

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AVIMHANS); these are on record, and form part of this court’sconsideration, to ascertain the individualised sentences appropriate inthe present case. Counsel for the appellants have also placed on record,written submissions outlining the mitigating factors and justification for amodification, on the question of sentence.B25. The appellant Vikas Chaudhary, was merely 18-19 years oldat the time of offence and is currently about 37-38 years old. As per thesocial investigation report (probation report), he comes from an educated,urban, ‘middle-class’ family background; he has passed 10[th] standard,but his 12[th] standard was interrupted by the facts relating to this offence.He continues to undertake written work during his time in custody. HeChas undergone more than 17 years of actual sentence, during which hehas demonstrated satisfactory conduct (as per jail reports dated30.11.2017 and 18.11.2020). The report dated 08.09.2021, regarding workdone in jail is positive and mentions that he has worked as Sahayak inthe Langar, jail control room, and ward, during his incarceration period,Dfor which he has received appreciation certificates. Barring three episodesof aggression which were prior to 2012, there is no other negative instanceon the record. The VIMHANS report too, did not disclose any cause forconcern. The latest probation report dated 06.09.2021 is encouraging;similar to the earlier report (dated 01.12.2017) given the to the trial court,the report mentions that the appellant had strong continuing relationsEwith his parents and relatives. His parents have accepted him and remainworried about his future. The interviews with the neighbours of his familyhome, i.e., members of the community, were also positive. He has noother criminal antecedents. The report further suggests that the appellanthas ample scope for reformation and reintegration into society, and thatFthe appellant could look after his parents and lead a normal social life.

26. The appellant, Vikas Sidhu, who was in his early 20s at thetime of offence, is currently 40-41 years old, and has undergone over 17years of actual imprisonment. He is a graduate of Delhi University andwas a medical representative at the time of the offence. His familyGconsisted of five people; however, he has lost his father who was agovernment servant, and his younger brother, to illness. He too grew upin an urban, ‘middle-class’, educated family setting. He is married, andenjoys the affection of his mother, spouse, and elder sister. During hisincarceration period, he worked as a volunteer teacher under the ‘Padhoaur Padhao’, and at different times as a sahayak at the legal cell, jailH

control room, IGNOU study center, vocational training institute, bakeryunit, jail dispensary; he also worked in the paper making unit of jail factoryfor a few months. In addition to having attended some vocational trainingand cultural programmes, he has received numerous appreciationcertificates for work done in jail – especially most recently, for his effortsduring the COVID-19 crisis. As per request made in the initial reportreceived from VIMHANS, Vikas Sidhu underwent a more detailedpsychometric evaluation – the results of which reflected no clinical signsor symptoms of psychopathology; there is no negative inference madein the report. He has no criminal antecedents and continues to enjoy astrong bond with his family members. In his case as well, the probationreport suggested that there was sufficient scope for his reformation andreintegration into society, and that he showed promise in looking afterhis wife and aged mother.

27. This court is also cognizant of the nature of the crime that theappellants committed. They kidnapped the deceased, an 18-year-old boy,and sought ransom in exchange. The prosecution was able to prove thatthese appellants strangulated the kidnapped boy, burnt his body to eliminateevidence, and disposed of the body in a nala. The sole motive for thiscrime seems to have been greed. Undoubtedly, there was premeditationin the commission of the crime. These are the aggravating circumstances.

28. Both appellants in the present case, share some commonalities:they were of young age at the time of offence, hail from educatedbackgrounds, and they continue to enjoy the love and affection of theirfamilies, each of which have a good standing and strong ties within thecommunities they live in. While the material relating to their lives andsocial conditions pre-conviction do not offer an explanation as to thecause for commission of offence, it can certainly be said that the materialavailable regarding their conduct post-conviction, remains encouraging.They have applied themselves during the time of incarceration and usedtheir time to contribute meaningfully – for which they have each receivedcommendations. Their psychological and psychiatric evaluations wereconcluded to be normal, without cause for concern. A strong case ismade out in support of the appellants’ probability of reform (as alreadyevidenced by their jail conduct), and reintegration into society. The state,too, has not indicated any material to the contrary, regarding this aspect.

29. In view of the totality of the facts and circumstances, and forthe above reasons, this court is of the opinion that it would be appropriate A

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Ato modify the sentence awarded to both appellants to a minimum term of20 years actual imprisonment. The appeals are partly allowed in theabove terms.

Nidhi Jain

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Appeals partly allowed.

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