Supreme Court of India
RAJESH KUMARversusSTATE THROUGH GOVT. OF NCT OF DELHI-II
- Citation
- 2011 INSC 722
- Decided
- 28 September 2011
- Disposal
- Disposed off
- Bench
- D K JAIN
Holding
The death sentence was not justified and was substituted with life imprisonment.
Summary
The appellant Rajesh Kumar was convicted of murdering two children, aged four years and eight months, and was sentenced to death by the trial court and the Delhi High Court. On appeal, the Supreme Court examined whether the death penalty was justified under the "rarest of rare" doctrine, emphasizing the need to balance aggravating and mitigating factors and to comply with the procedural safeguards of Sections 235(2) and 354(3) of the CrPC. The Court found that the State failed to prove that the appellant was a continuing threat to society or beyond reform, which are essential mitigating circumstances under the Bachan Singh ratio. It held that the High Court had given undue weight to the brutality of the crime and had not properly considered the appellant's potential for rehabilitation. Consequently, the death sentence was deemed unsustainable and was commuted to life imprisonment, with the conviction upheld.
Issues considered
- The appropriateness of the death sentence under the "rarest of rare" standard in a case involving the murder of two children
- Whether the trial court and High Court properly balanced aggravating and mitigating circumstances as required by Bachan Singh v. State of Punjab
- Whether Sections 235(2) and 354(3) of the CrPC necessitate a genuine hearing of the accused and recording of special reasons before imposing death
- Whether the State proved that the appellant was a continuing threat to society or beyond rehabilitation
- Whether the procedural requirements of a fair, just and reasonable sentencing process under Article 21 were satisfied
Legislation cited
- Code of Criminal Procedure, 1973s. 235(2), s. 354(3)
- Indian Penal Code, 1860s. 302
Subjects
death penaltymurderrarest of raremitigating circumstancesaggravating circumstancessentencingSection 235 CrPCSection 354 CrPCArticle 21due processlife imprisonmentcapital punishment
Judgment
•
[2011] 15 (ADDL.) S.C.R. 92
.A RAJESH KUMAR
v.
STATE THROUGH GOVT. OF NCT OF DELI-II
(Criminal Appeal Nos. 1871-1872 of 2011)
SEPTEMBER 28, 2011
B
[D.K. JAIN AND ASOK KUMAR GANGULY, JJ.]
Penal Code, 1860 - s.302 - Murder- Death penalty-
Concept of 'rarest of rare' case - Mitigating circumstances -
c Murder of two children - one aged 4~ years, and the other
aged B months - Trial court convicted accused-appellant U/
s.302 and sentenced him to death - Conviction and sentence
upheld by High Court - Sustainability of death sentence -
Held: In the instant case the State failed to show that the
o appellant was a continuing threat to society or that he was
beyond reform and rehabilitation - This was certainly a
mitigating circumstance which the High Court failed to take
into consideration - While considering thl!I aggravating
circumstances, the High Court was substantially influenced
E with the brutality in the manner of committing the crime ... No
doubt the murder was committed in this case in a very brutal
and inhuman fashion, but that alone cannot justify infliction
of death penalty - For a person convicted of murder, life
imprisonment is the rule and death sentence, an exception,
and the mitigating circumstances must be given due
F consideration ....: Except in 'rarest of rare cases' and for 'special
reasons' death sentence cannot be imposed as an alternative
option to imposition of life sentence - In the facts of this case,
the death sentence Imposed by the High Court cannot be
sustained and is thus substituted by the sentence of
G imprisonment for life :- Code of Criminal Procedure, 1973 -
s.~~ .
. Code of Criminal Procedure, 1973 - ss.235(2) and
354(3) - Opportunity of hearing to accused on the question
H 92
RAJESH KUMAR v. STATE THROUGH GOVT. OF 93
NCT OF DELHI
of sentence at the post-conviction stage - Effect of - Held: It A
gives the accused an opportunity to raise fundamental issues
for adjudication and effective determination by Court of its
sentencing discretion in a fair and reasonable manner - The
object of hearing u/s.235(2) being intrinsically and inherently
connected with the sentencing procedure, the provision of B
s.354(3) which calls for recording of special reason for
awarding death sentence must be read conjointly with s.235(2)
- Special reasons can only be validly recorded if an effective
opportunity of hearing contemplated uls. 235(2) of Cr. P. C. is
genuinely extended and is allowed to be exercised by the c
accused who stands convicted and is awaiting the sentence
- These two provisions do not stand in isolation but must be
construed as supplementing each other as ensuring the
constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the court
0
- Sentence/Sentencing.
Sentence/Sentencing - Death Sentence - Evolution of
sentencing structure and the concept of mitigating
circumst{lnces in India relating to death penalty - Discussed:
Sentence/Sentencing - Changes in sentencing structure E
- Evolving standards of decency - Concept of dignity of the
individual - Paradigm shift in jurisprudence with gradual
transition of legal regime from 'rule of law' to 'due process of
law' - Constitution of India, 1950 - Article 21.
F
Appellant was charged with the offence of
committing the murder of two children- one aged 4Yz
years, and the other aged 8 months, in a brutal and
inhuman manner. The trial court convicted the appellant
under Section 302 IPC and imposed death sentence. On G
appeal, the High Court confirmed the conviction and the
death sentence.
The question which arose for consideration in the
instant appeals was whether the Trial Court and the High
H
94 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A Court had improperly balanced the consideration of
aggravating and mitigating circumstances and that if
mitigating circumstances are properly weighed in
accordance with the well-known judicial principles, the
death sentence awarded to the appellant cannot be
B sustained.
Disposing of the appeals, the Court
HELD: 1.1. The Code of Criminal Procedure, 1898
had section 376(5) which required that if an accused is
C convicted of an offence punishable with death and the
court sentences him with any punishment other than
death, the court shall, in its judgment, give reasons why
death sentence was not passed. This was during the
colonial days when the worth and dignity of human life
was not the central point in our jurisprudence. Even after
0 the coming of Constitution of India, the aforesaid
provision of section 367(5) of the 1898 Code continued
for some timg, [Paras 34, 35, 36] [110-B-F]
1.2. In 1955, the Code of Criminal Procedure
E (Amendment) Act, 1955 deleted the aforesaid section
367(5) of the 1898 Code. As a result of this amendment,
which came into effect from 1st January 1956, it was no
longer necessary for a Court to record in its judgment,
in case of conviction in connection with an offence
F punishable with death, any reason for not imposing the
death sentence. [Paras 37] [110-F-G]
1.3. The position substantially changed with the
introduction of a changed sentencing structure under
the present Code of Criminal Procedure, 1973. Section
G 309 of 1898 Code provided for the manner in which
judgment is to be given in cases tried by the Judge
himself. The 41st Law Commission Report (Volume I)
dated 24th September, 1969 proposed extensive changes
in 1898 Code. With regard to Section 309 of the 1898
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 95
NCT OF DELHI
Code, the Law Commission recommended that hearing A
of the accused was most desirable before passing any
sentence against him. This recommendation was
accepted and incorporated while enacting Section 235
Cr.P.C in 1973 Code within Chapter XVIII of the same
under the heading "Trial before a Court of Sessions". B
[Paras 46, 47, 49] [113-F; 114-A, D-F]
1.4. The most significant change brought about by
the incorporation of the recommendation of the Law
Commission, is the giving of an opportunity of hearing
to the accused on the question of sentence. This is the C
incorporation of the great humanizing principle of natural
justice and fairness in procedure in the realm of
penology. The trial of an accused culminating in an order
of conviction essentially relates to the offence and the
accused under 1898 Code did not get any statutory D
opportunity to establish and prove in such trial the
mitigating and other extenuating circumstances relating
to himself, his family and other relevant factors which are
germane to a fair sentencing policy. This opportunity of
hearing at the post conviction stage, gives the accused E
an opportunity to raise fundamental issues for
adjudication and effective determination by Court of its
sentencing discretion in a fair and reasonable manner.
[Para 51] [114-H; 115-A-C]
1.5. Similarly the corresponding provision of section F
354of1973 Code was section 367 of the 1898 Code. Both
the sections 354 of 1973 Code and section 367 of 1898
Code have virtually the same title. In section 367 of 1898
Code, it was 'Language of judgment. Contents of judgment'
and in 1973 Code, title of section 354 is 'Language and G
contents of judgme,nt' .. But Section 354 of 1973 Code is
substantially different from section 367 of 1898 Code as
there was no such provision as section 354(3) of 1973
Code in the 1898 Code. [Para 52] [115-D-E]
96 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A 1.6. The importance of section 235(2) of 1973 Code
can hardly be overemphasized in a case where
prosecution demands the imposition of death penalty and
the court awards the same. [Para 53) [116-G-H]
1.7. The object of hearing under section 235(2) being
8 intrinsically and inherently connected with the sentencing
procedure, the provision of section 354(3) which calls for
recording of special reason for awarding death sentence
must be read conjointly with section 235(2) of 1973 Code.
Special reasons can only be validly recorded if an
C effective opportunity of hearing contemplated under
section 235(2) of Cr.P.C. is genuinely extended and is
allowed to be exercised by the accused who stands
convicted and is awaiting the sentence. These two
provisions do not stand in isolation but must be
D construed as supplementing each other as ensuring the
constitutional guarantee of a just, fair and reasonable
procedure in the exercise of sentencing discretion by the
court. These changes in the sentencing structure reflect
the "evolving standards of decency" that mark the
E progress of a maturing democracy and which is in accord
with the concept of dignity of the individual - one of the
core values in our Preamble to the Constitution. In a way
these changes signify a paradigm shift in our
jurisprudence with the gradual transition of our legal
F regime from 'rule of law' to the 'due process of law'.
[Paras 63, 64, 65 and 66) [120-D-H; 121-A]
1.8. Until the decision of this Court in Maneka Gandhi,
Article 21 of the Constitution was viewed by this Court
as rarely embodying the Diceyian concept of rule of law
G that no one can be deprived of his personal liberty by an
executive action unsupported by law. If there was a law
which provided some sort of a procedure it was enough,
to deprive a person of his life or person31 liberty. After the
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 97
NCT OF DELHI
decision in Maneka Gandhi which marks a watershed in A
the development of constitutional law in our country, this
Court, for the first time, took the view that Article 21
affords protection not only against the executive action
but also against the legislation which deprives a person
of his life and personal liberty unless the law for B
deprivation is reasonable, just and fair. And it was held
that the concept of reasonableness runs like a golden
thread through the entire fabric of the Constitution and
it is not enough for the law to provide some semblance
of a procedure. The procedure for depriving a person of c
his life and personal liberty must be eminently just,
reasonable and fair and if challenged before the Court it
is for the Court to determine whether such procedure is
reasonable, just and fair and if the Court finds that it is
not so, the Court will strike down the same. Therefore the 0
'law' as interpreted under Article 21 by this Court is more
than mere 'lex'. It implies a due process, both
procedurally and substantively. [Paras 78, 79] [124-C-G]
1.9. The due process concept and the values of
Eighth Amendment of the U.S. Constitution, which have E
been incorporated in our Constitution, are virtually
articulated through the procedural safeguards of section
235(2) read with section 354(3) of 1973 Code. This marks
the maturing of our criminal jurisprudence from the stage
of rule of law to the realm of due process of law. [Para F
80] (124-H; 125-A-B]
Nawab Singh v. The State of Uttar Pradesh AIR 1954 SC
278; Vadive/u Thevar v. The State of Madras AIR 1957 SC
614: 1957 SCR 981; Jagmohan Singh v. The State of U.P.
(1973) 1 SCC 20: 1973 (2) SCR 541; Santa Singh v. State G
of Punjab (1976) 4 SCC 190: 1977 (1) SCR 229; Bachan
Singh v. State of Punjab (1980) 2 SCC 684; Muniappan v.
State of Tamil Nadu (1981) 3 SCC 11: 1981 (3) SCR 270;
Al/auddin Mian and others v. State of Bihar (1989) 3 SCC 5:
1989 (2) SCR 498; A.K. Gopa/an v. State of Madras AIR (37) H
98 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 1950 SC 27: 1950 SCR 88; Sakal Papers (P) Ltd. & ors. v.
Union of India AIR 1962 SC 305: 1962 SCR 842 Naresh
Shridhar Mirajkar v. State of Maharashtra and another AIR
1967 SC 1: 1966 SCR 744; Rustom Cavasjee Cooper v.
Union of India (1970) 1 SCC 248: 1970 (3) SCR 530;
B Maneka Gandhi v. Union of India and another (1978) 1 SCC
248: 1978 (2) SCR 621 and Sunil Batra v. Delhi
Administration & ors. (1978) 4 SCC 494: 1979 (1) SCR 392
- referred to.
William Henry Furman v. State of Georgia 408 US 238
C (1972) - referred to.
2.1. The Constitution Bench in Bachan Singh
construed the sentencing structure in Section 235(2) and
354(3) of 1973 Code through the prism of due process
concept and only then it upheld the constitutionality of
0 death sentence. In the impugned judgment, the High
Court failed to appreciate this ratio in Bachan Singh. The
High Court while discussing the mitigating
circumstances as against the aggravating circumstances
did not properly follow the principles discussed in Bachan
E Singh's case. [Paras 81, 82, 86] [125-C-D; 127-E-F]
2.2. The categories of mitigating and aggravating
circumstances are never close and no court can give an
exhaustive list of such circumstances. In the instant case
F State failed to show that the appellant is a continuing
threat to society or that he is beyond reform and
rehabilitation. On the other hand, it is clear from the
findings of the High Court th~t there is no evidence to
show that the accused is incapable of being reformed or
G rehabilitated in society and the High Court considered the
same as a neutral circumstance. The High Court was
clearly in error. The very fact that the accused can be
rehabilitated in society and is capable of being reformed,
since the State has not given any evidence to the
H contrary, is certainly a mitigating circumstance and which
RAJESH KUMAR v. STATE THROUGH GOVT. OF 99
NCT OF DELHI
the High Court failed to take into consideration. The High A
Court also failed to take into consideration that the
appellant is not a continuing threat to society in the
absence of any evidence to the contrary. Therefore, the
High Court, took a very narrow and a myopic view of the
mitigating circumstances about the appellant The High B
Court only considered that the appellant is a first time
offender and he has a family to look after. The High
Court's view of mitigating circumstance has been very
truncated and narrow insofar as the appellant is
concerned. [Paras 88, 89, 90] [128-G; 129-A, C-F] C
2.3. While considering the aggravating
circumstances, the High Cc.urt appears to have been
substantially influenced with the brutality in the manner
of committing the crime. It is no doubt that the murder
was committed in this case in a very brutal and inhuman D
fashion, but that alone cannot justify infliction of death
penalty. The High Court fell, in this case, into an error by
approving the death sentence as it was swayed by the
cruel manner in which the two children were done to
death by the appellant. The mitigating circumstances in E
favour of the appellant, were not properly considered.
[Paras 91, 98] [129-G; 132-E] ·
2.4. The concept of 'rarest of rare' which has been
evolved in Bachan Singh by this Court is the
internationally accepted standard in cases of death F
penalty. Taking an overall view of the facts in these
appeals, it is clear that death sentence cannot be inflicted
on the appellant since the dictum of Constitution Bench
in Bachan Singh is that the legislative policy in Section
354(3) of 1973 Code is that for person convicted of G
murder, life imprisonment is the rule and death sentence,
an exception, and the mitigating circumstances must be
given due consideration. Bachan Singh further mandates
that In considering the question of sentence the Court
H
100 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A must show a real and abiding concern for the dignity of
human life which must postulates resistance to taking life
through law's instrumentality. Except in 'rarest of rare
cases' and for 'special reasons' death sentence cannot
be imposed as an alternative option to the imposition of
B life sentence. In the facts of this case, the death sentence
imposed by the High Court cannot be sustained and the
death sentence imposed upon the appellant is
substituted by the sentence of imprisonment for life. The
conviction of the appellant is upheld and he is to serve
c out the life sentence. [Paras 101, 105-107] [132-G-H; 134-
C-G]
Bachan Singh v. State of Punjab (1980) 2 SCC 684 -
followed.
Dayanidhi Bisoi v. State of Orissa (2003) 9 SCC 310;
D Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC
175: 1995 (6) Suppl. SCR 195; Surja Ram v. State of
Rajasthan (1996) 6 SCC 271: 1996 (6) Suppl. SCR 783;
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498: 2009 (9) SCR 90;
E Dharrnendrasinh alias Mansinh Ratansinh v. State of Gujarat
(2002) 4 sec 679: 2002 (3) SCR 193; Panchhi & ors. v.
State of U.P. (1998) 7 sec 177: 1998 (1) Suppl. SCR 40;
Haru Ghosh v. State of West Bengal (2009) 15 SCC 551 :
2009 (13) SCR 847 and Smt. Triveniben v. State of Gujarat
F (1989) 1 SCC 678: 1989 (1) SCR 509 - referred to.
Case Law Reference:
AIR 1954 SC 278 referred to Para 38
1957 SCR 981 referred to Para 39
G
1973 (2) SCR 541 referred to Paras 41-45
408 us 238 (1972) referred to Para 44
1977 (1) SCR 229 referred to Paras 54,55,
H 56,58
RAJESH KUMAR v. STATE THROUGH GOVT. OF 101
NCT OF DELHI
(1980) 2 sec 684 referred to Paras 56,67, A
68,71
(1980) 2 sec 684 followed Paras 81,82,
84,85,86,
99,100,
101.,105 B
1981 (3) SCR 270 referred to Para 58
1989 (2) SCR 498 referred to Para 61
1950 SCR 88 referred to Paras 68,78,
80 c
1962 SCR 842 referred to Para 68
1966 SCR 744 referred to Para 68
1970 (3) SCR 530 referred to Paras 68, 75
c
1978 (2) SCR 621 referred to Paras 68,69,
71,73,74,
75,77,78,
1979 (1) SCR 392 referred to Para 75
E
(2003) 9 sec 310 referred to Para 82
1995 (6) Suppl. SCR 195 referred to Paras 82,83,
84
1996 (6) Suppl. SCR 783 referred to Para 82
F
2009 (9) SCR 90 referred to Para 84
2002 (3) SCR 193 referred to Para 91
1998 (1) Suppl. SCR 40 referred to Para 92
2009 (13) SCR 847 referred to Paras 93, 94 G
1989 (1) SCR 509 referred to Para 97
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1871-1872 of 2011.
H
102 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A From the Judgment & Order dated 6.8.2009 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 635 of
2007.
Trilok Nath Saxena, Vipin Kumar Saxena, Harish Chandra
Khar'banda, Krishna Kumar Bhati, Vimal Ray Verma, Vivek
B Kumar Singh and M.P. Shorawala for the Appellant.
H.P. Rawal, ASG, P.K. Dey, Anando Mukherjee, Anirudh
Sharma and Anil Katiyar for the Respondent.
The Judgment of the Court was delivered by
c GANGULY, J.1. Leave granted.
2. These Criminal Appeals are preferred from the judgment
of conviction under section 302 of the Indian Penal Code
(hereinafter "IPC") and the penalty of death sentence, delivered
D on 6th August, 2009 by the High Court of Delhi in Death
Sentence Reference no. 2/2007 and Criminal Appeal no. 635/
2007, whereby the High Court upheld the conviction and
confirmed the penalty of the death sentence imposed by the
Additional Sessions Judge, Rohini Court in Session Case
E No.178/06.
3. This Court had issued notice on the limited question of
quantum of sentence. The facts and circumstances, which are
relevant to these appeals, are as under.
F 4. According to the prosecution, the duty officer in the
Police Control Room received a call from number 20056630
at 15:38 hours on 28.7.2003 informing him that a man had
entered a house in Subhash Nagar and had assaulted two
children and had locked the door of a room from inside.
G Another call was made to the Police Control Room from mobile
No. 9810458303 noting that the informant had informed that a
·man had murdered two children inside House No. 2/129
Subhash Nagar near Arya Samaj Temple.
5. Each time the duty officer at the police control room, on
H receipt of afore-noted information, relayed the information to
RAJESH KUMAR v. STATE THROUGH GOVT. OF 103
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
the concerned police station i.e. P.S. Rajouri Garden, where A
the duty constable recorded the said information by way of
entries in the daily diary register, being DD No. 11, Ex.PW-16/
A at 3:35 PM and DD No. 12, Ex.PW-16/B at 3:50 PM.
6. ASI Jagpal PW-22 was handed over a copy of both the .
DD entries and was deputed to investigate. He took along with 8
him HC Naresh PW-19 and Const. Sukhbir PW-24. The three
police officers reached House No. 2/129 Subhash Nagar. A
crowd had gathered outside the house. Mr. Bahadur Singh PW-
4 a resident of House No. 2/130 Subhash Nagar i.e. the
immediate neighbour and one Mr. Negi (not examined as a C
witness) were present in the gathering and told the police
officers that the assailant had locked himself in a room on the
second floor of House No. 2/129 Subhash Nagar. The officers
climbed up the staircase and reached the second floor and
knocked the door. The man inside did not oblige. The three D
police officers had a peep inside through the ventilator above
the door and saw the body of a male child, smeared with blood
and the neck badly cut. Blood was splattered all over the room.
They had no option but to break open the "i:toor and apprehend
the man inside who was Rajesh Kumar, the appellant. E
7. Inspector Ram Chander PW-32, the SHO of P.S.
Rajouri Garden, was given the information about a man killing
two children on the second floor of House No. 2/129 Subhash
Nagar. He reached the house and by that time the appellant
had been apprehended by ASI Jagpal Singh, HC Naresh and F
Const. Sukhbir.
8. On learning that Harshit, the younger son had been
removed to Chanan Devi Hospital, Inspector Ram Chander
went to the hospital and learnt that Harshit was in an G
unconscious state. He collected the MLC Ex.PW-8/A of Harshit
and returned to the spot.
9. Inspector Ram Chander recorded the statement Ex.PW-
1/A of Sangeeta Sethi and made an endorsement Ex.PW-32/
A on the same. He sent the same through Constable Kamal at H
104 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 6.30 PM for registration of an FIR. HC Rajesh Tyagi PW-17,
the duty officer at P.S. Rajouri Garden, recorded the FIR
Ex.PW-17/A at 6:50 PM on the basis of the statement of
Sangeeta Sethi and sent a copy of the FIR back to the spot
with Constable Kamal. Constable Amarender PW-8 was
B handed over the FIR to be delivered to the Area Magistrate and
he left the police station at around 7:20 PM and returned to the
police station at 10:10 PM.
• 10. After the incident, Swanchetan, a Society for Mental
Health was informed by the police and they were requested to
C counsel the family. Dr. Raja! Mitra (P.W.-7), Director of
Swanchetan Society for Mental Health found the mother of the
children in a state of total shock and she was unable to speak.
Dr. Rajat Mitra then talked with the appellant and did not find
an abnormality in the behavior of the appellant wherefrom he
D could be certified as an insane person.
11. The investigation being complete, the police personnel
left for the police station. The appellant was formally arrested
as recorded in the arrest memo Ex.PW-32/F at 10:00 PM from
E the place of occurrence.
12. Unfortunately Master Harshit could not survive and died
the same night in the Hospital.
13. The appellant was charged under section 302 IPC for
committing the murder of two children namely, Anshul and
F Harshit.
14. At the trial, Sangeeta PW-1, the mother of the two
children, deposed that she was a housewife and was living on
the second floor of house No. 2/129, Subhash Nagar at the time
G of the occurrence. Her elder son was named Anshul and the
younger one was named Harshit. Their age was 4Y. years and
8 months respectively. The incident took place at around 3:00
PM on 28.7.2003 when she was present in her house and her
sons were sleeping in the bed room. Appellant came and asked
H for water. She gave him water. Appellant wanted a meal. She
RAJ ESH KUMAR v. STATE THROUGH GOVT. OF 105
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
went to the kitchen and heard cries of Harshit. She returned and A
picked up Harshit. Appellant told her to give the child to him
and cook meals for him. She gave her child to the appellant
and went to the kitchen. Her son cried continuously even in the
arms of the appellant and suddenly the crying stopped. She
went to the bed room and saw that her son was being held from 8
his legs by the appellant who was hitting the child on the floor.
Her other son was sleeping on the bed in the same room. She
snatched her son from the appellant and rushed to Pinki's
house and handed over her unconscious son to Pinki and
rushed back, by which time the appellant had bolted the door. C
She raised an alarm. She heard her son crying Ma Ma ..
Sudqenly the cries died down. By that time her neighbour
Pritam Singh and Bahadur as also a few other persons
gathered. The police arrived and a police person climbed a
table and through a ventilator saw the dead body of her son
and the appellant standing nearby. They pushed and opened D
the door. She saw her son with his throat slit. A piece of glass,
stained with blood, was lying on the chest of her son. The
dressing table glass was broken. The walls were stained with
blood.
E
15. PW-1 was cross-examined and she admitted that there
was no quarrel between her husband and the appellant qua the
demand of any money, but volunteered that the appellant used
to demand money from her husband.
16. Mukesh Sethi PW-2, .the husband of PW-1, deposed F
that on the day of the incident i.e. 28.7.2003, he was residing
with his wife and children on the 2nd floor of house No. 2/219,
Subhash Nagar, and the appellant was the husband of his sister
Alka, and was unemployed for the last 2% to 3 years and during
this period the appellant used to demand money for setting up G
business and that he gave him Rs.15,000/- and Rs.20,000/- on
two occasions. 15-20 days prior to the date of the incident the
appellant had demanded more money, which he refused
because he did not have money to spare. On 28. 7.2003 at
H
106 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A around 4-4:15 PM he was sitting in his other house at Rohini
and received a call from his wife who rang up from a
neighbour's house at 4:45 PM. He reached his house and saw
a crowd and the police. His wife was crying that her children
had been killed. His younger son had been removed to the
B hospital and the other son was lying dead inside the house.
17. PW-2 was cross-examined and he admitted that
relations between him and the appellant were normal. He
stated that he saw the appellant for the first time after the
incident in the police station only. He denied that the appellant
C was mentally sick.
18. The appellant did not lead any evidence in defence.
19. After the appreciation of evidence, the Trial Court
observed that the prosecution established the charges against
o the appellant beyond reasonable doubt. Consequently, the Trial
Court vide order-dated 12.03.2007 convicted the appellant
under section 302 IPC and vide order dated 24.03.2007
awarded death sentence to the appellant subject to the
confirmation of the High Court.
E 20. Consequently, a petition for confirmation of Death
Sentence bearing Death Sentence Ref. no. 2/2007 was filed
before the High Court
21. Being aggrieved the appellant also preferred a Criminal
F Appeal no. 635/2007 before the High Court.
22. By judgment dated 06th August 2009, the High Court
after re-appreciation of the entire evidence on record observed
that ~ is beyond reasonable doubt that the appellant committed
the murder of two children and upheld the conviction of the
G appellant under section 302 IPC. The High Court further
observed that the case falls in the category of rarest of rare
case, dismissed the Criminal Appeal filed by the appellant and
confirmed the death sentence imposed upon him.
23. The learned Counsel for the appellant submitted that
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 107
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
the facts of this case do net put the case in the category of the A
rarest of the rare cases, attracting the penalty of death. Listing
the mitigating circumstances in this case, the learned Counsel
urged that there are several of them. The first is that the
appellant is a first time offender. The second is that he has two
sons, a wife and a widowed mother to support. The third is the B
young age of the appellant who was aged 37 years when he
committed the crime. The fourth is the chance of the appellant's
rehabilitation in the society being not ruled out. The fifth, which
is a corollary or the fourth is, that it cannot be said that the
appellant is a continuing threat to the society. c
24. The learned Additional Solicitor General appearing on
behalf of the State urged that the facts and circumstances of
this case clearly bring it within the rarest of rare case and
warrants the imposition of death sentence. He argued that the
appellant killed two children, one of which was 8 months old D
and the other was 4% years of age, who were obviously
unarmed and innocent and incapable of giving any provocation
to the appellant.
25. The learned Additional Solicitor General also
contended that the killing of children is always a heinous crime. E
The evidence against the appellant is clinching and the
appellant has not suffered any remorse.
26. The learned Additional Solicitor General referred to the
report from Swanchetan, which is a society for mental health. F
The said report reflects the opinion of Dr. Rajat Mitra (PW-7),
Director of Swanchetan, who examined the appellant after the
incident.
27. By placing reliance on the said report, the learned
Additional Solicitor General argued that the appellant did not G
show any sign of remorse to Dr. Rajat Mitra, when he was
examined after the incident.
28. The learned Additional Solicitor General also referred
to report of All India Institute of Medical Sciences dated H
108 SUPREME COURT REPORTS [2011] 15 (ADDL.} S.C.R.
A 27.05.2009. This report was prepared pursuant to the order of
the Delhi High Court dated 04.05.2009. The said Medical
Board examined the appellant on 27.05.2009. The Board
opined that the appellant is of sound mind and did not want to
discuss the issue of the nature of offence but informed the
B Doctor that he has to spend his life in prison. The Medical
Board opined that the appellant was mentally fit.
29. The learned Additional Solicitor General also drew the
attention of this Court to Question no. 138 in the examination
of appellant under section 313 of Criminal Procedure Code.
C Both the question and the answer are set out below:
"Q.138 Anything else you want to say?
A. I am unwell since childhood. I am on medicine since
then. The problem with me is that I fell anywhere while
D walking. I also start shouting. I become unaware about
myself. My treatment was under going in jail and of late now
I have left my treatment, as doctor is not going to change
my medicine. The problem, which I was facing in the past
has re-surfaced. Even in the past while I use to drive my
E eyes use to get closed of its own. Mukesh and his relations
know about my medlcal problems.
I do not know how Anshul and Harshit have expired.
I am innocent. I have been falsely implicated. My medical
documents have been torn apart by my wife and for that
F reason out of having a sense of guilt she has not come to
see me even in jail. I cannot produce these medical
papers.
30. In the impugned judgment, the High Court also noted
G certain mitigating factors which are as follows:
"48.... The first is that the appellant is a first time offender.
The second is that he has two sons, a wife and a widowed
mother to support. The third is the fact that financial
hardship created stress in the mind compelling the
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 109
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
appellant to commit the crime. The fourth is the young age A
of the appellant who was aged 37 years when he
committed the crime. The fifth is the chance of the
appellant's rehabilitation in the society being not ruled out."
31. In para 79 of the impugned judgment, the High Court
has noted the aggravating circumstances. The first aggravating B
circumstance which the High Court noted is the brutal,
diabolical and dastardly nature of assault by the appellant on
the two children. The second aggravating circumstance is the
trauma produced on the mother of children .. The third
aggravating circumstance is that the victims are innocent C·
children. The fourth aggravating circumstance is breach of trust
by the appellant. The appellant wanted P.W.1, the mother of
the children, to cook food for him and the mother went to the
kitchen giving the younger child to the appellant, trusting that
no harm would be caused to the child but that trust was D
breached. The fifth aggravating circumstance was the close
relationship between the appellant and the victims. The sixth
aggravating circumstance, pointed out by the High Court, is the
motive of revenge of the appellant towards the children, as the
father of the children did not extend financial help to him. The E
seventh aggravating circumstance is the lack of remorse on
the part of the appellant. The eighth aggravating circumstance
is pre-meditation of the appellant in committing the crime and
the cruel weapon of offence used namely a piece of glass,
which was retrieved by breaking the mirror of the dressing F
table.
32. The High Court in the impugned judgment while
balancing these circumstances confirmed the Death Sentence.
33. In so far as the plea of insanity is concerned, both the G
Trial Court and the High Court rejected the same. In fact no
such plea was taken by the appellant in the Trial Court. Before
this Court also the said plea of insanity has been taken half-
heartedly. What has been primarily argued in this Court is that
the Trial Court and the High Court had improperly balanced the H
110 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A consideration of aggravating and mitigating circumstances and
it has been urged that if mitigating circumstances are properly
weighed in accordance with the well-known judicial principles,
the death sentence awarded to the appellant cannot be
sustained.
B
34. In this connection, we may consider the evolution of
sentencing structure and the concept of mitigating
circumstances in India relating to death penalty. The Code of
Criminal Procedure, 1898 (hereinafter "1898 Code"), had
section 376(5) which required that if an accused is convicted
'C of an offence punishable with death and the court sentences
him with any punishment other than death, the court shall, in its
judgment, give reasons why death sentence was not passed.
The provision of section 367(5) of 1898 Code reads as follows:
0 "(5) If the accused is convicted of an offence punishable
with death, and the court sentences him to any punishment
other than death, the court shall in its judgment state the
reason why sentence of death was not passed."
35. This was during the colonial days when the worth and
E dignity of human life was not the central point in our
jurisprudence.
36. Even after the coming of Constitution of India, the
aforesaid provision of section 367(5) of the 1898 Code
continued for some time.
F
37. In 1955, the Code of Criminal Procedure (Amendment)
Act, 1955 deleted the aforesaid section 367(5) of the 1898
Code. As a result of this amendment, which came into effect
from 1st January 1956, it was no longer necessary for a Court
G to record in its judgment, in case of conviction in connection
with an offence punishable with death, any reason for not
imposing the death sentence.
38. With the functioning of this Court under the Constitution,
several cases of death sentence came before this Court from
H 1950 onwards. But reference to extenuating or mitigating
RAJESH KUMAR v. STATE THROUGH GOVT. OF 111
NCT OF DELHI [ASOK KUMAR GANGULV. J.]
circumstances in a case of death penalty was made possibly A
for the first time by this Court in the case of Nawab Singh v.
The State of Uttar Pradesh (AIR 1954 SC 278). In that case it
was urged that for delay of execution, the death sentence
should be commuted to one for transportation of life. This Court
rejected the said argument holding inter-alia that it is a matter B
primarily for the consideration of local Government. This Court,
however, opined that in a proper case an inordinate delay in
the execution of sentences may be regarded as a ground for
commutation. However, this Court held that in the facts of that
case murder was a cruel and deliberate one and there were c
no extenuating circumstances.
39. After the amendment of 1898 Code, in the year 1955,
the first case relating to death sentence, which came before
this Court was that of Vadivelu Thevar v. The State of Madras
reported in AIR 1957 SC 614 wherein this Court made the D
following pertinent observations:
"13 ...... If the court is convinced about the truth of the
prosecution story, conviction has to follow. The question
of sentence has to be determined, not with reference to E
the volume or character of the evidence adduced by the
prosecution in support of the prosecution case, but with
reference to the fact whether there are any extenuating
circumstances which can be said to mitigate the enormity
of the crime. If the court is satisfied that there are such
mitigating circumstances, only then, it would be justified F
in imposing the lesser of the two sentences provided by
law. In other words, the nature of the proof has nothing
to do with the character of the punishment. The nature of
the proof can only bear upon the question of conviction -
whether or not the accused has been proved to be guilty. G
If the court comes to the conclusion that the guilt has been
brought home to the accused, and conviction follows, the
process of proof is at an end. The question as to what
punishment should be imposed is for the court to decide
H
112 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A in all the circumstances of the case with particular
reference to any extenuating circumstances ..... :
40. It is, therefore, clear that this Court was making a
distinction between its formation of opinion on the conviction
of the accused for the crime committed and its formation of
B opinion on the punishment to be imposed for the crime on
consideration of extenuating or mitigating circumstances.
41. The next decision of this Court rendered on the
constitutionality of death sentence was in the case of
C Jagmohan Singh v. The State of U.P. (1973) 1 SCC 20. The
Constitution Bench of this Court in Jagmohan Singh (supra)
examined whether total discretion can be conferred on the
judges in awarding death sentence, when the statute does not
provide any guidelines on how to exercise the same.
D 42. The decision in Jagmohan Singh (supra) was
rendered when the present Code of Criminal Procedure, 1973
was not in existence.
43. The Constitution Bench in Jagmohan Singh (supra)
held that the policy of the law giving a wide discretion to the
E judges in the matter of imposition of death sentence had its
origin in the impossibility of laying down any standards for
exercise of such discretion. However, the Court found that such
discretion is liable to be corrected by superior courts, but the
court did not find that conferment of such discretion on the
F judges was unconstitutional.
44. The Constitution Bench in Jagmohan Singh (supra)
however felt it difficult to follow the ratio of United States
Supreme Court in William Henry Furman v. State of Georgia
G {reported in 408 US 238 (1972)], as this Court found that our
Constitution does not have a provision like the Eig~th
Amendment of the Constitution of United States. This Court
also held in Jagmohan Singh (supra) that the test of
reasonableness cannot be applied by this Court in the same
H manner as is done by the United States Supreme Court in view
RAJESH KUMAR v. STATE THROUGH GOVT. OF 113
NCT OF DELHI [ASOK KUMAR GANGULY, J.)
of the existence of 'due process clause' in the United States A
Constitution (see para 12 at page 27 of the report). The learned
Judges quoting from the commentary by Ratanlal's, Law of
Crimes, (Twenty-second edition), referred to certain mitigating
and aggravating circumstances in para 22 at page 32 of the
report, but opined that the said list is not exhaustive (para 23 B
at page 32 of the report).
45. In paragraph 28 at page 36 of the report in Jagmohan
Singh (supra) the Constitution Bench found that the legal
position as it stood in 1972 was as follows:-
c
"........The sentence follows the conviction, and it is true
that no formal procedure for producing evidence with
reference to the sentence is specifically provided. The
reason is that relevant facts and circumstances impinging
on the nature and circumstances of the crime are already
0
before the court. Where counsel addresses the court with
regard to the character and standing of the accused, they
are duly considered by the court unless there is something
in the evidence itself which belies him or the Public
Prosecutor for the State challenges the facts. If the matter
is relevant and essential to be considered, there is nothing E
in the Criminal Proeedure Code which prevents additional
evidence being taken. It must, however, be stated that it
is not the experience of criminal courts in India that the
accused with a view to obtaining a reduced sentence ever.
offers to call additional evidence." F·
46. However, the aforesaid position substantially changed
with the introduction of a changed sentencing structure under
the present Code of Criminal Procedure, 1973. If we compare
the 1898 Code with 1973 Code, we would discern lot of G
changes between the two Codes in sentencing structure.
47. Chapter XXIU of 1898 Code under the heading of "Trial
before the High Court and Sessions Courts" lays down the
procedure for trials conducted before a High Court or Court of
sessions. Section 268 of 1878 Code provides for trials before H
' -
114 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A a Court of sessions either by a Jury or by the Judge himself.
Section 309 of 1898 Code provides for the manner in which
judgment is to be given in cases tried by the Judge himself.
48. Section 309 of 1898 Code reads as follows :
a "309. Judgment in cases tried by the Judge himself.-
(1) When, in a case tried by the Judge himself, the case
for the defence and the prosecutor's reply (if any) are
concluded, the Judge shall give a judgment in the case.
c (2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of Section
562, pass sentence on him according to law."
49. The 41st Law Commission Report (Volume I) dated
24th September, 1969 proposed extensive changes in 1898
D Code. In paragraph 23.2 of the ;;aiq report, the Law
Commission recommended a set of new provisions for
governing "Trials before a Court of sessions". With regard to
Section 309 of the 1898 Code, the Law Commis.sion
recommended that hearing of the accused was most desirable
E before passing any sentence against him. This
recommendation was accepted and incorporated while
enacting Section 235 Cr.P.C in 1973 Code within Chapter XVIII
of the same under the heading "Trial before a Court of
Sessions".
F 50. Section 235 Cr.P.C. reads as folk>ws:
"235. Judgeme'!t of acquittal or conviction. - (1) After
hearing .argumeflts and points of law (if any), the Judge
shall give a judgment in the case.
G (2) If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then
pass sentence on him according to law.
51. The most significant change brought about by the
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 115
NCT OF DELHI [ASOK KUMAR GANG ULY, J.]
incorporation of the recommendation of the Law Commission A
(supra}, is the giving of an opportunity of hearing to the accused
on the question of sentence. This is the incorporation of the
great humanizing principle of natural justice and fairness in
procedure in the realm of penology. The trial of an accused
culminating in an order of conviction essentially relates to the B
offence and the accused under 1898 Code did not get any
statutory opportunity to establish and prove in such trial the
mitigating and other extenuating circumstances relating to
himself, his family and other relevant factors which are germane
to a fair sentencing policy. This opportunity of hearing at the c
post conviction stage, gives the accused an opportunity to raise
fundamental issues for adjudication and effective determination
by Court of its sentencing discretion in a fair a.nd reasonable
manner.
52. Similarly the corresponding provision of section 354 D
of 1973 Code was section 367 of the 1898 Code. Both the
sections 354 of 1973 Code and section 367 of 1898 Cods
have virtually the same title. In section 367 of 1898 Code, it was
'Language of judgment. Contents of judgment' and in 1973
Code, title of section 354 is 'Language and contents of E
judgment'. But Section 354 of 1973 Code is substantially
different from section 367 of 1898 Code as there was no such
provision as section 354(3) of 1973 Code in the 1898 Code.
Section 354 of 1973 Code runs as under:-
"354. Language and contents of judgment. - (1) Except F
as otherwise expressly provided by this Code, every
judgment referred to in section 353,-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for G
determination, the decision thereon and the
reasons for the decision;
(c) shall specify the offence (if any) of which, and
the secfion of the Indian Penal Code (45 of 1860) H
116 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A or other law under which, the accused is convicted
and the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the
offence of which the accused is acquitted and direct
that he be set at liberty.
B
(2) When the conviction is under the Indian Penal Code
(45 cf 1860) and it is doubtful under which of two sections,
or under which of two parts of the same section, of that
Code the offence falls, the Court shall distinctly express the
c same, and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
[)' sentence of death, the special reasons for such sentence.
(4) When the conviction is for an offence punishable with
imprisonment for a term of one year or more, but the Court
imposes a sentence of imprisonment for a term of less than
three months, it shall record its reasons for awarding such
E sentence, unless the sentence is one_of imprisonment till
the rising of the Court or unless the ease was tried
summarily under the provisions of this Code.
(5) When any person is sentenced to death, the sentence
F shall direct that he be hanged by the neck till he is dead.
(6) Every order under section 117 or sub-section (2) of
section 138 and every final order made under section 125,
section 145 or section 147 shall contain the point or points
for determination, the decision thereon and the reasons for
G the decision.·
53. The importance of section 235(2) of 1973 Code has
been explained by this Court in several decisions and its
importance can hardly be overemphasized in a case where
H prosecution demands the imposition of death penalty and the
court awards the same. ·
RAJESH KUMAR v. STATE THROUGH GOVT. OF 117
NCT OF DELHI [ASOK KUMAR GANGULY, J.)
54. In Santa Singh v. State of Punjab [(1976) 4 SCC 190) A
this Court held that this new provision is in consonance with the
modern trends in penology and sentencing procedures.
Noticing the fact that section 235(2) is a new provision
introduced by the legislature in 1973 Code, this Court went on
. to explain that this is an important stage in the process of B
administration of criminal justice and is as important as the
adjudication of guilt and this stage should not be confined to a
subsidiary position as if it were a matter of not much
consequence.
55. In Santa Singh (supra) this Court noted that in most c!
countries of the world problem of sentencing the criminal
offender is receiving increasing attention and it is so in view of
rapidly changing attitude towards crime and criminal. In many
countries, intensive study of J)ociology of the crime has shifted
the focus from the crime to the criminal, leading to a widening D
of the objectives of sentencing and simultaneously of the range
of the sentencing procedures.
56. Bhagwatl, J., (as His Lordship then was) giving the
judgment in Santa Singh (supra) pointed out and which was E
later on accepted in Bachan Singh v. State of Punjab ((1980)
2 sec 684) that proper exercise of sentencing discretion calls
for consideration of various factors like the nature of offence,
the circumstances - both extenuating or aggravating, the prior
criminal record, if any, of the offender, the age of the offender,
his background, his education, his personal life, his social F
adjustment, the emotional and mental eondition of the offender,
the prospects for the rehabilitation of the offender, the possibility
of his rehabilitation in the life of community, the possibility of
treatment or training of the offender, the possibility that the
sentence may serve as a deterrent to crime by the offender or G
by others. After referring to all the aforesaid facts, the learned
Judge opined as under:
",3........................ These are factors which have to be
taken into account by the court in deciding upon the H
118 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A appropriate sentence, and therefore, the legislature felt
that, for this purpose, a separate stage should be provided
after conviction when the court can hear the accused in
regard to these factors bearing on sentence and then pass
proper sentence on the accused. Hence the new provision
B in Section 235(2)."
(para 3, page 195 of the report)
57. After analyzing the aforesaid aspects, the learned
Judge posed the question: What is the meaning and content
c of expression "hear the accused"? By referring to various
aspects and also the opinion expressed by Law Commission
in its Forty-eighth report, Bhagwati, J. (as His Lordship then
was) opined that the hearing contemplated under section
235(2) is not confined merely to oral submissions but it is also
0 intended to give an opportunity to the prosecution and the
accused to place before the court facts and material relating
to various factors bearing on the question of sentence.
However, there was a note of caution that in the name of such
hearing, the court proceedings should not be unduly protracted.
E 58. This Court held in Santa Singh (supra) that non-
compliance with such hearing is not a mere irregularity curable
under section 465 of the 1973 Code. This Court speaking
through Bhagwati, J. (as His Lordship then was) emphasized
that this legal provision under our constitutional values has
F acquired new dimension and must reflect "new trends in
penology and sentencing procedures• so that penal laws can
be used as a tool for reforming and rehabilitating criminals and
smoothening out the uneven texture of the social fabric and not
merely as a weapon for protecting the hegemony of one class
G over the other (see para 6, page 197 of the report).
59. 'In Muniappan v. State of Tamil Nadu [(1981) 3 SCC
11] Chief Justice Chandrachud, delivering the judgment again
had to consider the importance of section 235(2) and section
354(3) Cr.P.C. in our sentencing procedure. The learned Chief
1
H Justice held that the oblrgation to hear the accused on the
RAJESH KUMAR v. STATE THROUGH GOVT. OF 119
NCT OF DELHI [ASOK KUMAR GANGULY, J.)
question of sentence under section 235(2) of 1973 Code is not A
discharged by putting a formal question to the accused as to
what he has to say on the question of sentence. The learned
Chief Justice made it clear that the Judge must make a
genuine effort to elicit from the accused all items of information
which will eventually bear on the question of sentence. All such B
items of information would furnish a clue to the genesis of the
crime and the motivation of the criminal are relevant and the
learned Chief Justice emphasized that in such an exercise, it
is the bounden duty of the Judge to cast aside the formalities
of the Court-scene and approach the question of sentence from c
a broad sociological point of view.
60. The learned Chief Justice further said in the sentencing
procedure it is not only the accused but the entire society is at
stake and therefore the questions the Judge puts and the
answers accused gives may be beyond narrow constraints of D
the Evidence Act. In the words of the learned Chief Justice the
position of Court in an exercise under section 235(2) is as
follows:
"2 .......... The Court, while on the question of sentence, is E
in an altogether different domain in which facts and factors
which operate are of an entirely different order than those
which come into play on the question of conviction ... ."
(para 2, page 13 of the report)
61. To the same effect is the judgment of Ahmadi, J. (as F
His Lordship then was) in A/lauddin Mian and others v. State
of Bihar ((1989) 3 SCC 5). Explaining the purpose of section
235(2), this Court in Allauddin Mian (supra) held that section
235(2) satisfies a dual purpose; first of all it satisfies rules of
natural justice by according an opportunity to the accused of G
being heard on the question of sentence. Under such
sentencing procedure the accused is given an opportunity to
place before the court all relevant materials having a bearing
on the question of sentence. The Court opined that it is a
salutary principle and must be strictly observed and is not a H
120 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A matter of mere formality. This Court further held that in such
hearing exercise the accused should be given a real and
effective opportunity to place his antecedents, social and
economic background etc. before the court, for the court to take
a fair decision on sentence as otherwise the sentence would
B be vulnerable.
62. The Court therefore opined:-
"10 ....... We think as a general rule the Trial Courts should
after recording the conviction adjourn the matter to a future
c date and call upon both the prosecution as well as the
defence to place the relevant material bearing on the
question of sentence before it and thereafter pronounce
the sentence to be imposed on the offender... ."
(para 10, page 21 of the report)
D
63. Therefore, it is clear from the purpose of section 235(2)
as explained in the aforesaid cases, that the object of hearing
under section 235(2) being intrinsically and inherently connected
with the sentencing procedure, the provision of section 354(3)
E which calls for recording of special reason for awarding death
sentence must be read conjointly with section 235(2) of 1973
Code.
64. This Court is of the opinion that special reasons can
only be validly recorded if an effective opportunity of hearing
F contemplated under section 235(2) of Cr.P.C. is genuinely
extended and is allowed to be exercised by the accused who
stands convicted and is awaiting the sentence.
65. These two provisions do not stand in isolation but must
be construed as supplementing each other as ensuring the
G constitutional guarantee of a just, fair and reasonable procedure
in the exercise of sentencing discretion by the court.
66. These changes in the sentencing structure reflect the
"evolving standards of decency" that mark the progress of a
maturing democracy and which is in accord with the concept
H of dignity of the individual - one of the core values in our
RAJESH KUMAR v. STATE THROUGH GOVT. OF 121
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
Preamble to the Constitution. In a way these changes signify a A
paradigm shift in our jurisprudence with the gradual transition
of our legal regime from 'rule of law' to the 'due process of law',
to which this Court would. advert to in the latter part of the
judgment.
67. The main issues which were considered in Bachan B
Singh (supra) are indicated in para 15 of the judgment, which
is set out:
"15. The principal questions that fall to be considered in
this case are: c
(i) Whether death penalty provided for the offence of
murder in Section 302, Penal Code is unconstitutional.
(ii) If the answer to the foregoing question be in the
negative, whether the sentencing procedure provided in 0
Section 354(3) of the Cr.P.C., 1973 (Act 2 of 1974) is
unconstitutional on the ground that it invests the Court with
unguided and untrammelled discretion and allows death
sentence to be arbitrarily or freakishly imposed on a person
found guilty of murder or any other capital offence
punishable under the Indian Penal Code with death or, in E
the alternative, with imprisonment for life."
68. In upholding the constitutionality of section 302 of Indian
Penal Code and also the provisions of section 354(3) of 1973
Code the Constitution Bench in Bachan Singh (supra) F
considered the evolution of our Constitutional Jurisprudence
from various decisions of Constitution Bench of this Court in
A.K. Gopalan v. State of Madras (AIR (37) 1950 SC 27) and
then the decisions of this Court in Saka/ Papers (P) Ltd. &ors.
v. Union of India (AIR 1962 SC 305), Naresh Shridhar G
Mirajkar v. State of Maharashtra and another (AIR 1967 SC
1), Rustom Cavasjee Cooper v. Union of India [(1970) 1 SCC
248), Maneka Gandhi v. Union of India and another [(1978)
1 sec 248) and several other decisions.
H
122 SUPREME COURT REPORTS [2011] 15 {ADDL.} S.C.R.
A 69. After considering all these Constitution Bench
decisions of this Court, the learned Judges held that in the
evolving mosaic of our Constitutional Jurisprudence, specially
after the decision of this Court in Maneka Gandhi (supra),
Article 21 of the Constitution which guarantees life and
B personal liberty has to be interpreted differently.
70. Article 21 as enacted in our Constitution reads as
under:
"No person shall be deprived of his life or personal liberty
c except according to procedure established by law:
71. But this Court in Bachan Singh (supra) held that in view
of the expanded interpretation of Article 21 in Maneka Gandhi
(supra), it should read as follows:
"136...... No person shall be deprived of his life or personal
D
liberty except according to fair, just and reasonable
procedure established by valid law.
72. In the converse positive form, the expanded Article will
read as below:
E "A person may be deprived of his life or personal liberty
in accordance with fair, just and reasonable procedure
established by valid law:
(See para 136 page 730 of the report)
F 73. This epoch making decision in Maneka Gandhi (supra}
has substantially infused the concept of due process in our
constitutional jurisprudence whenever the court has to deal with
a question affecting life and liberty of citizens or even a person.
G 74. Krishna Iyer, J. giving a concurring opinion in Maneka
Gandhi (supra} elaborated, in his inimitable style, the transition
from the phase of rule of law to due precess of law. The
relevant statement of law given by the learned Judge is quoted
below:
H "81 ...... .'Procedure established by law', with its lethal
RAJESH KUMAR v. STATE THROUGH GOVT. OF 123
NCT OF DELHI [ASOK KUMAR GANGULY, J.)
potentiality, will reduce life and liberty to a precarious A
plaything if we do not ex necessitate import into those
weighty words an adjectival rule of law, civilised in its soul,
fair in its heart and fixing those imperatives of procedural
protection absent which the processual tail will wag the
substantive head. Can the sacred essence of the human B
right to secure which the struggle for liberation, with 'do or
die' patriotism, was launched be sapped by formalistic
and pharisaic prescriptions, regardless of essential
standards? An enacted apparition is a constitutional,
illusion. Processual justice is writ patently on Article 21. It c
is too grave to be circumvented by a black letter ritual
processed through the legislature."
(Para 81 page 337 of the report)
75. Immediately after the decision in Maneka Gandhi 0
(supra) another Constitution Bench of this Court rendered
decision in case of Sunil Batra v. Delhi Administration & ors.
((1978) 4 sec 494) specifically acknowledged that even though
a clause like the 8th Amendment of the United States
Constitution and concept of 'due process' of American
Constitution is not enacted in our Constitution text, but after the E
decision of this Court in R.C. Cooper (supra) and Maneka
Gandhi (supra)· the -consequences is the same. The
Constitution Beoch of this Court in Sunil Batra (supra) speaking
through Krishna Iyer, J held:
"52. True, our Constitution has no 'due process' clause or
. F
the VIII Amendment; but, in this branch of law, after Cooper
(supra) and Maneka Gandhi (supra), the consequence is
the same." ·
76. The Eighth Amendment (1791) to the Constitutton of G
United States virtually emanated from the English Bill of Rights
(1689). The text of the Eighth Amendment reads, "Excessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." The English Bill of
Rights drafted a century ago QPStulates, "That excessive bail H
124 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A ought not to be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted."
77. ourconstitution does not have a similar provision but
after the decision of this Court in Maneka Gandhi's case
(supra) jurisprudentially the position is virtually the same and
B the fundamental respect for human dignity underlying the Eighth
Amendment has been read into our jurisprudence.
78. Until the decision was rendered in Maneka Gandhi
(supra), Article 21 was viewed by this Court as rarely embodying
c the Diceyian concept of rule of law that no one can be deprived
of his personal liberty by an executive action unsupported by
law. If there was a law which provided some sort of a procedure
it was enough to deprive a person of his life or personal liberty.
In this connection, if we refer to the example given by Justice
S.R. Das in his judgment in AK. Gopalan (supra) that if the law
0
provided the Bishop of Rochester 'be boiled in oil' it would be
valid under Article 21. But after the decision in Maneka Gandhi
(supra) which marks a watershed in the development of
constitutional law in our country, this Court, for the first time, took
the view that Article 21 affords protection not only against the
E executive action but also against the legislation which deprives
a person of his life and personal liberty unless the law for
deprivation is reasonable, just and fair. And it was held that the
concept of reasonableness runs like a golden thread through
the entire fabric of the Constitution and it is not enough for the
F law to provide some semblance of a procedure. The procedure
for depriving a person of his life and personal liberty must be
eminently just, reasonable and fair and if challenged before the
Court it is for the Court to determine whether such procedure
is reasonable, just and fair and if the Court finds that it is not
G so, the Court will strike down the same.
79. Therefore, 'law' as interpreted under Article 21 by this
Court is more than mere 'lex'. It implies a due process, both
procedurally and substantively. '
H 80. Thus, the due process concept and the values of Eighth
RAJESH KUMAR v. STATE THROUGH GOVT. OF 125
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
Amendment of the U.S. Constitution, which have been A
incorporated in our Constitution, are virtually articulated through
the procedural safeguards of section 235(2) read with section
354(3) of 1973 Code. This marks the maturing of our criminal
jurisprudence from the stage of rule of law to the realm of due
process of law by experiencing the vicissitudes of a fascinating B
journey for about three decades of judicial decision making by
this Court from A.K. Gopalan (supra) to Maneka Gandhi
(supra).
81. In fact the Constitution Bench in Bachan Singh (supra)
has construed the sentencing structure in Section 235(2) and C
~54(3) of 1973 Code through the prism of due process concept
and only then it upheld the constitutionality of death sentence.
82. However, in the impugned judgment, the High Court
failed to appreciate this ratio in Bachan Singh (supra). In the 0
instant case to confirm the death sentence of the appellant, the
High Court relied on the judgment of this Court in Dayanidhi
Bisoi v. State of Orissa [(2003) 9 SCC 310], wherein the
accused was held guilty of murder of three persons of a family
comprising husband, wife and their three year old daughter. In E
that case, the accused, who is a member of the family of the
deceased, committed the criminal act for monetary benefits
while the deceased were sleeping. In Dayanidhi Bisoi (supra)
this Court, while awarding death sentence to the accused,
relied on its previous decision in Ravji alias Ram Chandra v.
State of Rajasthan ((1996) 2 SCC 175] and Surja Ram v. State F
of Rajasthan [(1996) 6 SCC 271].
83. In Ravji (supra), a Division Bench of this Court
observed that it is only characteristics relating to the crime, to
the exclusion of the ones relating to the criminal, which are G
relevant for sentencing in the criminal trial. In paragraph 24 at
page 187 of the report, this Court held:
"24 ...... The crimes had been committed with utmost
cruelty and brutality without any provocation, in a calculated
.H
'
126 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A manner. It is the nature and gravity of the crime but not
the criminal, which are germane for consideration of
appropriate punishment in a criminal trial. The Court will
be failing in its duty if appropriate punishment is not
awarded for a crime which has been committed not only
B against the individual victim but also against the society
to which the criminal and victim belong. The punishment
to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity and
brutality with which the crime has been perpetrated, the
c enormity of the crime warranting public abhorrence and it
should "respond to the society's cry for justice against the
criminal."
84. Ravji (supra) case was followed in as many as six
cases where death sentence was imposed. However, this Court
D in Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra ((2009) 6 SCC 498] pointed out that Ravji's
(supra) case and the six subsequent cases in which Ravji
(supra) was followed were decided per incuriam, as the law
laid down therein is contrary to the law laid by the Constitution
E Bench of the Supreme Court in Bachan Singh. In Bachan Singh
(supra), this Court held that before giving death sentence Court
should not confine its consideration principally or merely to the
circumstances connected with the particular crime but must also
give due consideration to the circumstances of the criminal. His
F Lordship Sinha, J. in para 63 at page 529 of B::.iriyar (supra)
observed that:
"63. We are not oblivious that Ravji case has been
followed in at least 6 decisions of this Court in which death
punishment has been awarded in last 9 years, but, in our
G opinion, it was rendered per incuriam. Bachan
Singh specifically noted the following on this point:
"163 ... The present legislative policy discernible
from Section 235(2) read with Section 354(3) is that
in fixing the degree of punishment or making the
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 127
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
choice of sentence for various offences, including A
one under Section 302 of the Penal Code, the court
should not confine its consideration 'principally'
or merely to the circumstances connected with the
particular crime, but also give due consideration
to the circumstances of the criminal.· B
Shivaji v. State of Maharashtra - (2008) 15 SCC 269,
Mohan Anna Chavan v. State of Maharashtra - (2008)
7 sec 561, Bantu v. State of U.P. - (2008) 11 sec 113,
Surja Ram v. State of Rajasthan - (1996) 6 SCC
271; Dayanidhi Bisoi v. State of Orissa - (2003) 9 SCC C
310 and State of U.P. v. Sattan - (2009)4 SCC 736 are
the decisions where Ravji has been followed. It does not
appear that this Court has considered any mitigating
circumstance or a circumstance relating to criminal at the
sentencing phase in most of these cases. It is apparent D
that Ravji has not only been considered but also relied upon
as authority on the point that in heinous crimes,
circumstances relating to criminal are not pertinent."
85. The High Court in this case, by following the Ravji ratio,
therefore, did not properly appreciate the ratio in Bachan Singh E
(supra) in awarding death sentence on the appellant.
86. In the instant case, the High Court while discussing the
mitigating circumstances as against the aggravating
circumstances has not properly followed the principles F
discussed in Bachan Singh's case. In Bachan Singh (supra)
this Court at paragraph 206 (at page 750 of the report) sets
out certain mitigating circumstances which were suggested by
Dr. Chitale, the learned counsel and at paragraph 207 of the
report the learned Judge observed that these are undoubtedly G
relevant circumstances and must be given great weight in the
determination of sentence. Those circumstances are set out
herein below:
"206. Dr. Chitaley has suggested these mitigating factors:
H
128 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A Mitigating circumstances:-ln the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
B
(2) The age of the accused. If the accused is young or old,
he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
c threat to society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused does
D not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the
accused believed that he was morally justified in
committing the offence.
E (6) That the accused acted under the duress or domination
of another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct."
F
87. In this connection the submission of the learned
counsel that the State must by evidence prove that the accused
does not satisfy conditions No.3 and 4 above is of great
importance as this Court accepted that those submissions must
G be given 'great weight in the determination of sentence'.
88. However, the categories of mitigating and aggravating
circumstances are never close and no court can give an
exhaustive list of such circumstances. For instance, a crime
involving a terrorist attack may place the case under a
H
.•
RAJESH KUMAR v. STATE THROUGH GOVT. OF 129
NCT OF DELHI [ASOK KUMAR GANGULY, J.)
completely different situation. A
89. In the instant case State has failed to show that the
appellant is a continuing threat to society or that he is beyond
reform and rehabilitation. On the other hand, in paragraph 77
of the impugned judgment the High Court observed as follows:
B
"We have no evidence that the appellant is incapable of
being rehabilitated in society. We also have no evidence
that he is capable of being rehabilitated in society. This
circumstance remains a neutral circumstance."
90. It is clear from the aforesaid finding of the High Court C
that there is no..evidence to show that the accused is incapable
of being reformed or rehabilitated in society and the High Court
has considered the same as a neutral circumstance. In our view
the High Court was clearly in error. The very fact that the
accused can be rehabilitated in society and is capable of being D
reformed, since the State has not given any evidence to the
contrary, is certainly a mitigating circumstance and which the
High Court has failed to take into consideration. The High Court
has also failed to take into consideration that the appellant is
not a continuing threat to society in the absence of any evidence E
to the contrary. Therefore, in paragraph 78 of the impugned
judgment, the High Court, with respect, has taken a very narrow
and a myopic view of the mitigating circumstances about the
appellant. The High Court has only considered that the appellant
•
is a first time offender and he has a family to look after. We F
are, therefore, constrained to observe that the High Court's view
of mitigating circumstance has been very truncated and narrow
in so far as the appellant is concerned.
91. On the other hand, while considering the aggravating
circumstances, the High Court appears to have been G
substantially influenced with the brutality in the manner of
committing the crime. It is no doubt that the murder was
committed in this case in a very brutal and inhuman fashion,
but that alone cannot justify infliction of death penalty. This is
held in several decisions of this Court. Reference in this case H
130 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A may be made to the decision of this Court in Dharmendrasinh
alias Mansinh Ratansinh v. State of Gujarat ((2002) 4 SCC
679] wherein the accused suspected the character of his wife
and under the belief that his two sons were not born of him,
murdered those two innocent children. This Court held that the
a act of accused was heinous, unpardonable and condemnable,
but this Court commuted the death sentence to life sentence
inter alia on the ground that accused had no previous criminal
record and the chances of repetition of such criminal acts at
his hands making the society further vulnerable are not
C apparent. In coming to this conclusion this Court observed:
"20..... A number of factors are to be taken into account
namely, the motive of the crime, the manner of the assault,
the impact of the crime on the society as a whole, the
personality of the accused, circumstances and facts of the
D case as to whether the crime committed, has been
committed for satisfying any kind of lust, greed or in
pursuance of anti-social activity or by way of organized
crime, drug-trafficking or the like. Chances of inflicting the
society with the similar criminal act that is to say
E vulnerability of the members of the society at the hands of
the accused in future and ultimately as held in several
cases, mitigating and aggravating circumstances of each
case have to be considered and a balance has to be
struck .. ."
F (Para 20, page 695 of the report)
92. Again in Panchhi & ors. v. State of U.P. [(1998) 7
sec 177] four members of a family comprising two adult male
and female, murdered four members of neighbouring family
G comprising an adult male and female, an old lady and a child
of five years of age in most heinous, brutal and diabolical
manner to fulfill their vengeance. This Court while commuting
their death sentence to life imprisonment observed:-
"20...... No doubt brutally looms large in the murders in
H this case particularly of the old and also the tender-aged
RAJESH KUMAR v. STATE THROUGH GOVT. OF 131
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
child. It may be that the manner in whicti the killings were A
perpetrated may not by itself show any lighter side, but that
is not very peculiar or very special in these killings. Brutality
of the manner in which a murder was perpetrated may be
a ground but not the sole criterion for judging whether the
case is one of the "rarest of rare cases" as indicated in B
Bachan Singh's case. In a way every murder is brutal, and
the difference between one from the other may be on
account of mitigating or aggravating features surrounding
the murder."
(para 20, page 183 of the report) c
(Emphasis supplied)
93. In Haru Ghosh v. State of West Bengal ((2009) 15
SCC 551] wherein the accused, a previous convict of murder
and facing a sentence of life imprisonment was out on bail when D
his appeal was pending before the High Court, murdered a
woman and her child because the deceased woman's husband
asked the accused not to sell illicit liquor in the locality.
94. The facts in Haru Ghosh (supra) are that one day
accused entered the house of deceased and started E
strangulating the child. On the intervention of the mother the
child was released from the clutches of accused. The mother
took the child to a nearby tubewell and while she was pouring
water on unconscious child's face the accused got hold of a
sharp weapon from a by-stander and assaulted the mother and F
child to death.
95. This Court observed that this was a dastardly murder
of two helpless persons for no fault on their part. But this Court
commuted the death sentence to life imprisonment taking into G
consideration following factors, firstly that there was no pre-
meditation in the act of the accused. This was at the spur of
the moment as accused did not come armed with any weapon.
Secondly it is unknown under what circumstances accused
entered the house of deceased and what prompted him to H
132 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R
A assault the boy. Thirdly the cruel manner in which the murder
was committed cannot be the guiding factor in favour of death
sentence. Fourthly the accused himself has two minor children.
96. This Court observed as under:
B "39 ........ the cruel manner in which the murder was
committed and the subsequent action on the part of the
accused in severing the parts of the body of the deceased,
do not by themselves, become the guiding factor in favour
of the death sentence"
C (para 39, page 564 of the report)
97. In Smt. Triveniben v. State of Gujarat [(1989) 1 SCC
678], the Constitution Bench of this Court, following the Bachan
Singh ratio, held "death sentence cannot be given if there is
any mitigating circumstance in favour of the accused. All
0
circumstances of the case should be aggravating" (Para 25,
page 698 of the report).
98. Unfortunately, the High Court contrary to the ratio in the
aforesaid cases, fell, in this case, into an error by approving
E the death sentence as it was swayed by the cruel manner in
which the two children were done to death by the appellant. The
mitigating circumstances in favour of the appellant, were not
properly considered.
99. The ratio in Bachan Singh (supra) f11s received
F approval by the international legal community and has been very
favourably referred to by David Pannick in 'Judicial Review of
the Death Penalty: Duckworth' (see page 104-105).
100. Roger Hood and Carolyn Hoyle in theirI treaties on
G 'The Death Penalty' Fourth Edition (Oxford) have al~ very much
appreciated the Bachan Singh ratio (See page 2~5).
\
101. The concept of 'rarest of rare' which has been
evolved in Bachan Singh (supra) by this Court is also the
internationally accepted standard in cases of death1 penalty.
H
RAJESH KUMAR v. STATE THROUGH GOVT. OF 133
NCT OF DELHI [ASOK KUMAR GANGULY, J.]
102. Reference in this connection may also be made to A
the right based approach in exercising discretion in death
penalty as suggested by Edward Fitzgerald, the British
Barrister. [Edward Fitzgerald: The Mitigating Exercise in
Capital Cases in Death Penalty Conference (3-5, June,
Barbados: Conference Papers and Recommendations] B
103. It has been suggested therein that right approach
towards exercising discretion in capital cases is to start from
a strong presumption against the death penalty. It is argued that
'the presence of any significant mitigating factor justifies
exemption from the death penalty even in the most gruesome C
cases' and Fitzgerald argues:
"Such a restrictive approach can be summarized as
follows: The normal sentence should be life imprisonment.
The death sentence should only be imposed instead of the D
life sentence in the 'rarest of rare' cases where the crime
or crimes are of exceptional heinousness and the individual
has no significant mitigation and is considered beyond
reformation."
(Quoted in The Death Penalty: Roger Hood and Hoyle, 4th E
Edition Oxford, Page 285]
104. Opposing mandatory death sentence, United Nations
in its interim report to the General Assembly in 2000 advanced
the following opinion:
F
"The proper application of human rights law-especially of
its provision that 'no one shall be arbitrarily deprived of his
life' and that 'no one shall be subjected to .... cruel, inhuman
or degrading .... punishment' - requires weighing factors
that will not be taken into account in the process of G
determining whether a defendant is guilty of committing a
'most serious crime'. As a result, these factors can only
be taken into account in the context of individualized
sentencing by the judiciary in death penalty cases ... The
conclusion, in theory as well as in practice, was that H
134 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A respect for human rights can be reliably ensured in death
penalty cases only if the judiciary engages in case-specific,
individualized sentencing that accounts for all of the
relevant factors .... It is clear, therefore, that in death penalty
cases, individualized sentencing by the judiciary is
B required to prevent cruel, inhuman or degrading
punishment and the arbitrary deprivation of life."
[The Death Penalty: Roger Hood and Hoyle, 4th Edition,
Oxford, Page 281]
c 105. Taking an overall view of the facts in these appeals
and for the reasons discussed above, we hold that death
sentence cannot be inflicted on the appellant since the dictum
of Constitution Bench in Bachan Singh (supra) is that the
legislative policy in Section 354(3) of 1973 Code is that for
person convicted of murder, life imprisonment is the rule and
0
death sentence, an exception, and the mitigating circumstances
must be given due consideration. Bachan Singh (supra) further
mandates that in considering the question of sentence the Court
must show a real and abiding concern for the dignity of human
life which must postulates resistance to taking life through law's
E instrumentality. Except in 'rarest of rare cases' and for 'special
reasons' death sentence cannot be imposed as an alternative
option to the imposition of life sentence.
106. For tt:e reasons discussed above, we cire of the view
F that in the facts of this case the death sentence imposed by
the High Court cannot be sustained and the death sentence
imposed upon the appellant is substituted by the sentence of
imprisonment for life.
107. The appeals are allowed to the extent indicated
G above. The conviction of the appellant is upheld and he is to
serve out the life sentence.
B.B.B. Appeals disposed of.
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