STATE OF U.P.versusSANJAY KUMAR

                     [2012] 7 S.C.R. 359


                       STATE OF U.P.                              A
                              v.
                     SANJAY KUMAR
               (SLP (Crl.) No. 6467 of 2012)

                     AUGUST 21, 2012
                                                                  B
 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

    PENAL CODE, 1860:

     ss. 302 and 376 - Rape and murder of an eighteen year        c
old girl - Death sentence - Commuted by High Court to life
imprisonment - Held: High Court is correct to the extent that
the facts of the case did not warrant death sentence.

    SENTENCE/SENTENCING:
                                                                  D
       Sentencing policy - Principle of proportionality -
Aggravating and mitigating circumstances - Commutation of
death sentence to imprisonment for fife or imprisonment for
a specified term - Clemency power of Sovereign - Expression
"life imprisonment" - Connotation of - Discussed - Constitution   E
of India, 1950 - Arts. 142, 72 and 161 - Separation of powers
- Code of Criminal Procedure, 1973 - s.433, 433-A.

    Neel Kumar @ Anil Kumar v. State of Haryana, (2012)
5 SCC 766; and Sandeep v. State of UP. (2012) 6 SCC 107;
                                                                  F
Ramraj v. State of Chhattisgarh 2009 (16) SCR 367 = AIR
2010 SC 420; Mui/a & Anr. v. State of Uttar Pradesh, 2010
(2) SCR 633 =AIR 2010 SC 942; and Rameshbhai
Chandubhai Rathod v. State of Gujarat 2011 (1) SCR 829
=AIR 2011 SC 803; Swamy Shraddananda @ Murali
Manohar Mishra v. State of Karnataka, 2008 (11) SCR 93            G
=AIR 2008 SC 3040; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kera/a & Anr., 1973 Suppl. SCR
1 =AIR 1973 SC 1461; Smt. Indira Nehru Gandhi v. Shri Raj

                             359                                  H
    360      SUPREME COURT REPORTS               [2012] 7 S.C.R.

A Narain and Anr. 1976 SCR 347 =AIR 1975 SC 2299; and
  State of West Bengal & Ors. v. The Committee for Protection
  of Democratic Rights, West Bengal and Ors. 2010 (2) SCR
  979 =AIR 2010 SC 1476; Jayawant Dattatraya Suryarao v.
  State of Maharashtra 2001 (5) Suppl. SCR 54 = (2001) 10
B SCC 109; Manish Goel v. Rohini Goel, 2010 (2) SCR 414 =
  AIR 2010 SC 1099; State of Haryana v. Jagdish 2010 (3)
  SCR 716 = AIR 2010 SC 1690; Sevaka Perumal etc. v.
  State of Tamil Nadu 1991 (2) SCR 711 = AIR 1991 SC 1463;
  Ravji v. State of Rajasthan 1995 (6) Suppl. SCR 195 =AIR
c 1996 SC 787; State of Madhya Pradesh v. Ghanshyam
  Singh 2003 (3) Suppl. SCR 618 = AIR 2003 SC 3191;
  Dhananjay Chatterjee alias Dhana v. State of WB. AIR 2004
  SC 3454; Rajendra Pralhadrao Wasnik v. The State of
  Maharashtra, AIR 2012 SC 1377; and Brajendra Singh v.
  State of Madhya Pradesh, AIR 2012 SC 1552 - referred to.
0
          Exp. Grossman, (1924) 69 Led. 527 - referred to.

                         Case Law Reference:
          (2012) 5 sec 766         referred to        para 5
E
          (2012) 6 sec 101         referred to        para 5
          2009 (16) SCR 367        referred to        para 6
          2010 (2) SCR 633         referred to        para 6
F
          2011 (1) SCR 829         referred to        para 6
          2008 (11) SCR 93         referred to        para 8
          1973 Suppl. SCR 1        referred to        para 10
G         1976 SCR 347             referred to        para 10
          2010 (2) SCR 979         referred to        para 10
          2001 (5) Suppl. SCR 54   referred to        para 11

H         2010 (2) SCR 414         referred to        para 12
          STATE OF U.P. v. SANJAY KUMAR                     361


    (1924) 69 Led. 527            referred to         para 13       A

    2010 (3) SCR 716              referred to         para 14

     1991 (2) SCR 711             referred to         para 15

     1995 (6) Suppl. SCR 195 referred to              para 15       B
    2003 (3) Suppl. SCR 618 referred to               para 15

     2004 AIR 3454                referred to         para 15

     2012 AIR 1377                referred to         para 15
                                                                    c
     2012 AIR 1552                referred to         para 15

     CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Crl.) No. 6467 of 2012.

     From the Judgment & Order dated 22.02.2012 of the High         D
Court of Allahabad in Criminal Appeal (Capital Case) No. 7760
of 2009.

    Vivek Vishnoi, Gaurav Agarwal (for M.R. Shamshad) for
the Petitioner.
                                                                    E
    The order of the Court was delivered

                             ORDER

     1. Delay condoned.
                                                                    F
     2. This petition has been filed against the impugned
judgment and Order dated 8.2.2012 passed by the High Court
of Judicature at Allahabad in Criminal Appeal (Capital Case)
No. 7760 of 2009, by which the High Court has commuted the
death sentence awarded to the respondent by the Sessions            G
Court, in life imprisonment upon recording its conclusion that it
was not among the 'rarest of rare cases', in which death penalty
could be awarded.

                                                                    H
    362     SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A        3. Facts and circumstances giving rise to this petition are
    as follows:

       A. The respondent was engaged in the work of whitewash
  in the house of one Shyam Ji Sharma, resident of Tulsi Vihar
  Colony, Varanasi and his very close relative Divya Rani was
8
  staying with him, as she was appearing for her Intermediate
  examination. The complainant Shyam Ji Sharma alongwith his
  wife Rajni Sharma had gone to the market on 24.2.2007 to
  purchase goods while Divya Rani (deceased) was supervising
C the said work. When the complainant came back with his wife
  they found the door of the house open and saw that the
  respondent had killed Divya Rani and was now trying to
  conceal her body in a tin box after throwing out the clothes
  contained in it. There was blood on Divya's face. The
  complainant and his wife tried to catch hold of the respondent
D but he pushed them aside and ran away. They immediately
  lodged a First Information Report and Divya's body was
  henceforth sent for post-mortem examination.

        8. In addition to several simple injuries on her body, a
E ligature mark measuring 29 cm in length, 1/2-1 cm in thickness
  at places all around the neck, with a pattern of pressure points
  3 cm below the sternal notch and 3 cm below both the ears,
  was found. The doctor also found that there was laceration of
  the vagina and the vaginal vault, and rupturing of hymen was
F also observed. Asphyxia as a result of strangulation contributed
  to her death. The doctor also opined that the victim had been
  subjected to sexual assault.

       C. On the basis of the post-mortem report, the charges
  under Sections 376 and 302 of Indian Penal Code, 1860
G (hereinafter called 'IPC'), were framed against the respondent,
  to which he pleaded not guilty and claimed trial.

       D. After conclusion of the trial and particularly placing
  reliance upon the confessional statement made by the
H respondent under Section 164 of the Code of Criminal
           STATE OF U.P. v. SANJAY KUMAR                      363


Procedure, 1973 (hereinafter called 'Cr.P.C.), the trial Court A
vide its judgment and order dated 5.12.2009 in Sessions Trial
No. 245 of 2007 convicted the respondent of the said charges
and awarded him death sentence. The reason for giving death
sentence had been recorded stating that the dee.eased was 18
years of age and the offence committed by the respondent B
would have a very negative effect on society. The offence
committed by the respondent was in fact rarest of the rare. The
confessional statement recorded by the Judicial Magistrate
was worth placing reliance upon, wherein the respondent had
admitted his guilt and, therefore, tak~ng into consideration all c
the facts and circumstances of the case, the Court reached the
conclusion that it was a case under the category of 'rarest of
rare cases'. Therefore, death penalty was awarded to the
respondent alongwith a fine of Rs.10,000/- in default of which,
he would have to suffer further RI for 4 months. For the charge
                                                                 0
of rape, he was awarded life imprisonment, with a fine of
Rs.10,000/- and in default, he would have to suffer further RI
for 4 years.

      E. Being aggrieved, the respondent filed an appeal and
while considering his appeal alongwith the Death Reference            E
made to the High Court, the High Court after appreciating the
entire evidence, came to the conclusion that upon consideration
of the totality of circumstances, the charges stood fully proved
against the respondent. However, the case did not fall within
the category of 'rarest of rare cases' where the option of            F
awarding a sentence of imprisonment for life was
unquestionably foreclosed.

     Hence, this petition.

     4. Learned counsel for the State has submitted that the          G
High Court committed an error in not accepting the capital
reference and in the facts and circumstances of the case,
particularly, yi.ihere a girl of 18 years of age has been raped and
murdered, in order to ensure some deterrent effect, the High
Court ought to have affirmed the death sentence, particularly,        H
    364      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   when the respondent himself has admitted his guilt on both
    charges, while making a confessional statement under Section
    164 Cr.P.C. before the Judicial Magistrate.

          5. It has been submitted at the bar that this Court has given
    different terms as minimum sentence to be served by convicts
8
    and, thus, the Court failed to ensure consistency in sentence
    and in laying down an effective and elaborate sentencing policy.

          In Neel Kumar@ Anil Kumar v. State of Haryana, (2012)
    5 SCC 766; and Sandeep v. State of UP. (2012) 6 SCC 107
C   while commuting the awarded death sentence into a sentence
    of life imprisonment, it has been directed by this Court that
    convicts therein must serve a minimum of 30 years in jail
    without remissions before the consideration of their respective
    cases for premature release.
D
         It has been further submitted that the aforesaid judgments
    reveal that there is no definite yardstick for the purpose of
    sentencing and that it varies from court to court to award the
    term of sentence. If the court awards a sentence of a particular
E   term, subject to the clemency power of the sovereign or subject
    to premature release under Section 433-A Cr.P.C., then the
    period of sentence so fixed by the court remains meaningless.

          Questions arise as to whether the direction of the court,
    that the convict has to serve a particular period of sentence
F   before his case for premature release is considered, infringes
    upon the clemency or other statutory powers of the executive;
    whether such an order can be said to have been passed under
    Article 142 of the Constitution; and whether the court can issue
    such direction in exercise of the power vested in it under Article
G   142 of the Constitution. Whether this kind of sentence awarded
    by the court, if made subject to the clemency power and other
    statutory powers could be held merely to be a recommendation,
    as a result of which, while exercising such a. power, the
    executive may bear in mind the opinion expressed by the court
H   and take a decision, accordingly.
          STATE OF U.P. v. SANJAY KUMAR                       365


    6. The High Court after placing reliance upon the                 A
judgments of this Court in Ramraj v. State of Chhattisgarh, AIR
2010 SC 420; Mui/a & Anr. v. State of Uttar Pradesh, AIR
2010 SC 942; and Rameshbhai Chandubhai Rathod v. State
of Gujarat, AIR 2011 SC 803; passed the order of sentence
as under:                                                             B

            "We think that in the present case the ends of justice
     would be met if the sentence of death awarded to the
     appellant be substituted with a sentence of imprisonment
     for the whole of the remaining natural life of the appellant, C
     subject further, to the condition that the prisoner could be
     eligible to any commutation and remissions that may be
     granted by the President and the Governor under Articles
     72 and 161 of the Constitution of India or of the State
     Government under Section 433-A of the Code of Criminal
     Procedure, 1973 for good and sufficient reasons".             D

      7. We have gone through the impugned judgments and the
evidence produced by the petitioner-State. We are of the view
that the High Court is correct to the extent, that the facts of the
case did not warrant death sentence.                                  E
     8. Undoubtedly, a comprehensive sentencing policy is
required to be laid down by the Court, however, the same would
be a herculean task as it is impossible to foresee all possible
circumstances which may take place in the future.
                                                                      F
     In Swamy Shraddananda @ Murali Manohar Mishra v.
State of Karnataka, AIR 2008 SC 3040, after considering
various provisions of various statutes, a three-Judge Bench
observed as under:
                                                                      G
          "The matter may be looked at from a slightly different
    angle. The issue of sentencing has two aspects. A
    sentence may be excessive and unduly harsh or it may be
    highly disproportionately inadequate. When an appellant
    comes to this court carrying a death sentence awarded by          H
    366      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A         the trial court and confirmed by the High Court, this Court
          may find, as in the present appeal, that the case just falls
          short of the rarest of the rare category and may feel
          somewhat reluctant in endorsing the death sentence. But
          at the same time, having regard to the nature of the crime,
B         the Court may strongly feel that a sentence of life
          imprisonment that subject to remission normally works out
          to a term of 14 years would be grossly disproportionate
          and inadequate. What then the Court should do? If the
          Court's option is limited only to two punishments, one a
c         sentence of imprisonment, for all intents and purposes, of
          not more than 14 years and the other death, the court may
          feel tempted and find itself nudged into endorsing the
          death penalty. Such a course would indeed be disastrous.
          A far more just, reasonable and proper course would be
          to expand the options and to take over what, as a matter
D
          of fact, lawfully belongs to the court, i.e., the vast hiatus
          between 14 years' imprisonment and death. It needs to be
          emphasized that the Court would take recourse to the
          expanded option primarily because in the facts of the case,
          the sentence of 14 years' imprisonment would amount to
E         no punishment at all.

                In light of the discussions made above we are clearly
          of the view that there is a good and strong basis for the
          Court to substitute a death sentence by life imprisonment
F         or by a term in excess of fourteen years and further to
          direct that the convict must not be released from the
          prison for the rest of his life or for the actual term as
          specified in the order, as the case may be .

                .. .. .. .We accordingly substitute the death sentence
G
          given to the appellant by the trial court and confirmed by
          the High Court by imprisonment for life and direct that he
          shall not be released from prison till the rest of his life."

                                                   (Emphasis added)
H
          STATE OF U.P. v. SANJAY KUMAR                     367


     The Court further clarified that while passing an order of    A
punishment, the Court deals with the powers of the State under
the provisions of the Cr.P.C., the Prisons Acts and the Rules
framed by the States, and not with clemency power. that is, the
power of the Sovereign in this respect.
                                                                   B
     9. Another three-Judge Bench of this Court in Rameshbhai
Chandubhai Rathod (supra) passed a similar order, wherein,
the Bench made it clear, that the sentence of natural life would
be subject to the power of clemency and powers under Section
433-A Cr.P.C.
                                                                   c
      10. The concept of Separation of Powers is inherent in the
polity of the Constitution. This doctrine creates a system of
checks and balances by reason of which, powers are so
distributed that none of the three organs set up can become
so pre-dominant, so as to disable the others from exercising       D
and discharging the powers and functions entrusted to them.
The separation of powers between the legislature, the executive
and the judiciary constitutes one of the basic features of the
Constitution. There is distinct and rigid separation of powers
under the Indian Constitution. The scrupulously discharged         E
duties of all guardians of the Constitution include among them,
the duty not to transgress the limitations of their own
constitutionally circumscribed powers by trespassing into what
falls properly within the domain of other constitutional organs.
(Vide: His Holiness Kesavananda Bharati Sripadagalvaru v.          F
State of Kera/a & Anr., AIR 1973 SC 1461; Smt. Indira Nehru
Gandhi v. Shri Raj Narain and Anr., AIR 1975 SC 2299; and
State of West Bengal & Ors. v. The Committee for Protection
of Democratic Rights, West Bengal and Ors., AIR 2010 SC
1476).                                                             G

     11. In Jayawant Dattatraya Suryarao v. State of
Maharashtra, (2001) 10 SCC 109, this Court after considering
a large number of judgments, having conjoint reading of
Sections 433 and 433-A Cr.P.C., and taking into account the
facts of the case particularly that the appellant therein had      H
    368       SUPREME COURT REPORTS                   [2012) 7 S.C.R.


A committed a heinous act of terrorism and brutal murder of two
  police constables who were on duty to guard the person to
  whom they wanted to kill held that they could not be awarded
  death sentence and thus, commuted the same to imprisonment
  for life but directed that the accused therein would not be entitled
B to any commutation or premature release under Section 433-
  A Cr.P.C., Prisons Act, Jail Manual or any other Statute and
  the Rules made for the purpose of commutatjon and remissions.

        12. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099,
C after placing reliance on a very large number of Constitution
  Bench judgments of this Court, the Court came to the conclusion
  that the Court cannot exercise its power under Article 142 of
  the Constitution for passing an order or granting a relief, which
  is totally inconsistent with, or which goes against the substantive
  or statutory provisions pertaining to the case.
D
        13. The purpose of conferring the power of clemency has
  been explained by Chief Justice Taft in Exp. Grossman, (1924)
  69 Led. 527 observing as under:

          "The administration of justice by the courts is not
E
          necessarily always wise or certainly considerate of
          circumstances which may properly mitigate guilt. To afford
          a remedy, it has always been thought essential in popular
          governments as well as monarchies, to vest in some other
          authority than the courts power to avoid particular
F
          judgments. It is a check entrusted to the Executive for
          special cases. To exercise it to the extent of destroying the
          deterrent effect of judicial punishment would be to pervert
          it; but whoever is to make it useful must have full discretion
          to exercise it."
G
       14. In State of Haryana v. Jagdish, AIR 2010 SC 1690,
  this Court dealt with the issue of clemency power elaborately
  and held that such powers are unfettered and absolute. Where
  the State authority frame rules under Article 161 of the
H Constitution, the case of the convict is required to be
          STATE OF U.P. v. SANJAY KUMAR                       369

considered under the said rules. Even if the life convict does        A
not satisfy the requirements of the remission rules or of the short
sentencing scheme, there can be no prohibition for the
President or the Governor of the State, as the case may be, to
exercise the power of clemency vested in them, under the
provisions of Articles 72 and 161 of the Constitution. Therefore,     B
this Court while passing such orders never meant that clemency
power could not be exercised by the President/Governor. The
order of the Court in such an eventuality always remains subject
to the said clemency powers.

      15. Sentencing Policy is a way to guide judicial discretion
                                                                      c
in accomplishing particular sentencing. Generally, two criteria,
that is, the seriousness of the crime and the criminal history of
the accused, are used to prescribe punishment. By introducing
more uniformity and consistency into the sentencing process,
the objective of the policy, is to make it easier to predict          D
sentencing outcomes. Sentencing policies are needed to
address concerns in relation to unfettered judicial discretion
and lack of uniform and equal treatment of similarly situated
convicts. The principle of proportionality, as followed in various
judgements of this Court, prescribes that, the punishments            E
should reflect the gravity of the offence and also the criminal
background of the convict. Thus the graver the offence and the
longer the criminal record, the more severe is the punishment
to be awarded. By laying emphasis on individualised justice,
and shaping the result of the crime to the circumstances of the       F
offender and the needs of the victim and community, restorative
justice eschews uniformity of sentencing. Undue sympathy to
impose inadequate sentence would do more harm to the public
system to undermine the public confidence in the efficacy of law
and society could not long endure under serious threats.              G
    Ultimately, it becomes the duty of the Courts to award
proper sentence, having regard to the nature of the offence and
the manner in which it was executed or committed etc. The
Courts should impose a punishment befitting the crime so that
                                                                      H
    370      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   the Courts are able to accurately reflect public abhorrence of
    the crime .. It is the nature and gravity of the crime, and not the
    criminal, which are germane for consideration of appropriate
     punishment in a criminal trial. Imposition of sentence without
    considering its effect on social order in many cases may be in
B    reality, a futile exercise. The survival of an orderly society
    demands the extinction of the life of a person who is proved to
     be a menace to social order and security. Thus, the Courts for
    the purpose of deciding just and appropriate sentence to be
     awarded for an offence, have to delicately balance the
c    aggravating and mitigating factors and circumstances in which
    a crime has been committed, in a dispassionate manner. In the
    absence of any foolproof formula which may provide a basis
    for reasonable criteria to correctly assess various
    circumstances germane for the consideration of gravity of
    crime, discretionary judgment, in relation to the facts of each
0
    case, is the only way in which such judgment may be equitably
    distinguished. The Court has primarily dissected the principles
     into two different compartments - one being, the 'aggravating
    circumstances' and the other being, the 'mitigating
    circumstance'. To balance the two is the primary duty of the
E   Court. The principle of proportionality between the crime and
    the punishment is the principle of 'just deserts' that serves as
    the foundation of every criminal sentence that is justifiable. In
    other words, the 'doctrine of proportionality' has valuable
    application to the sentencing policy under Indian criminal
F   jurisprudence. While determining the quantum of punishment
    the court always records sufficient reasons. (Vide: Sevaka
    Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463; Ravji
    v. State of Rajasthan, AIR 1996 SC 787; State of Madhya
    Pradesh v. Ghanshyam Singh AIR 2003 SC 3191; Dhananjay
G   Chatterjee alias Dhana v. State of WB. AIR 2004 SC 3454;
    Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR
    2012 SC 1377; and Brajendra Singh v. State of Madhya
    Pradesh, AIR 2012 SC 1552).

H         16. In view of the above, we reach the inescapable
            STATE OF U.P. v. SANJAY KUMAR                    371


conclusion that the submissions advanced by learned counsel          A
for the State are unfounded. The aforesaid judgments make it
crystal clear that this Court has merely found out the via media,
where considering the facts and circumstances of a particular
case, by way of which it has come to the conclusion that it was
not the ·rarest of rare cases'. warranting death penalty, but a      B
sentence of 14 years or 20 years, as referred to in the guidelines
laid down by the States would be totally inadequate. Life
imprisonment cannot be equivalent to imprisonment for 14
years or 20 years, rather it always meant as the whole natural
life. This Court has always clarified that the punishment so         C
awarded would be subject to any order passed in exercise of
the clemency powers of the President of India or Governor of
State, as the case may be. Pardons, reprieves and remissions
are granted in exercise of prerogative power. There is no scope
of judicial review of such orders except on very limited grounds
                                                                     0
for example non-application of mind while passing the order;
non-consideration of relevant material; or if the order suffers
from arbitrariness. The power to grant pardons and to commute
sentences is coupled with a duty to exercise the same fairly and
reasonably. Administration of justice cannot be perverted by
executive or political pressure. Of course, adoption of uniform      E
standards may not be possible while exercising the power of
pardon. Thus, such orders do not interfere with the sovereign
power of the State. More so, not being in contravention of any
statutory or constitutional provision, the orders, even if treated
to have been passed under Article 142 of the Constitution do         F
not deserve to be labelled as unwarranted. The aforesaid
orders have been passed considering the gravity of the
offences in those cases that the accused would not be entitled
to be considered for premature release under the guidelines
issued for that purpose i.e. under Jail Manual etc. or even under    G
Section 433-A Cr.P.C.

       With these observations, the Petition is dismissed.

R.P.                                           SLP dismissed.
                                                                     H