SANTOSH KUMAR SATISHBHUSHAN BARIYAR v. STATE OF MAHARASHTRA

Citation: [2009] 9 S.C.R. 90

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

SANTOSH KUMAR SATISHBHUSHAN BARIYAR v. STATE OF MAHARASHTRA.pdf

Judgment text

r- (_ [2009] 9 S. C. R. 90 ~ SANTOSH KUMAR SATISHBHUSHAN BARIYAR v. " STATE OF MAHARASHTRA (Criminal Appeal No. 1478 of 2005) MAY 13, 2009 ) [S. 8. SINHA AND CYRIAC JOSEPH, JJ. ] )t CODE OF CRIMINAL PROCEDURE, 1973; Sections 306, 307 - Tender of pardon to accomplice - Power to direct - Discussed - On the facts of the case Held: The pardon granted by the Sessions Judge was legal and ..... valid. ~ SENTENCING: - Death sentence - Rarest of rare cases - Special reasons ~·Mitigating factors - Discussed - On the facts of the case - Held: There are no special reasons to record the death penalty and the mitigating factors are sufficient to place it out of the rarest of rare category - Thus, it is not a case where death penalty should be imposed - Instead of death penalty appellant to undergo rigorous imprisonment for life - Code of +- Criminal Procedure, 1973, Sections 235(2) and 354(3) - Constitution of India, Articles 14, 21.

·- DOCTRINES: Doctrine of Prudence - Doctrine of Proportionality - Applicability of. In these appeals, the principal questions which arose for consideration were: ~· -- (i) Whether the Sessions Judge acted illegally in granting pardon to an accomplice (PW1 ); and ..... STATE OF MAHARASHTRA i (ii) Whether the case falls under 'rarest of rare cases' so as to enable the Courts below to -~ award death penalty. Dismissing the appeals and reducing the death sentence to rigorous imprisonment for life, the Court HELD: 1. 1. The order of Sessions Judge dated 3rd :l - ... Section 307 of the Code of Criminal Procedure for all intent and purport shall become otiose. [Para 9] [128-E- ' F] - 1. 4. In the instant case, the order of the judge granting pardon to t~e Approver, is legal and valid. [Para 9] [128- F-G] Narayan Chetanram Chaudhary and Another v. State of Maharashtra (2000) 8 sec 457, relied on. Rampa/ Pithwa Rahidas and Others v. State of Maharashtra 1994 Supp (2) SCC 73, distinguished. 2.

For an effective compliance of sentencing .. .. : procedure under section 364(3) and section 236(2) Cr. P. C, sufficient discretion is a pre-condition. Strict channeling of discretion would also go against the founding principles of sentencing as it wm prevent the sentencing court to identify and weigh various factors relating to the crime and the criminal such as culpability, impact on the society, gravity of offence, motive behind the crime etc. [Para 11] [129-F-G] Bachan Singh v. State of Punjab (1980) 2 SCC 684, relied on. f- ,. , Rajendra Prasad v. State of Uttar Pradesh (1979) 3 SCC 646; Saibanna v. State of Karnataka (2005) 4 SCC 165 and Mithu v. State of Punjab AIR 1983 SC 473 - r«llied on. Furman v. Georgia, 408 U. S. 238 (1972); Reyes v. R. (2002) UKPC 11 : 12 BHRC 219; Hughes, R. v. (Saint Lucia) (2002) UKPC 12; Fox v. The Queen (2002) 2 AC 284; Bowe v. The Queen (2006) 1 WLR 1623 and Coard & Ors. v. The • - Attorney General (Grenada), (2007) UKPC 7, referred to. \ 3.

It is accepted that rarest of rare case is to be determined in the facts and circumstance. of a given case ( '( STATE OF MAHARASHTRA i and there is no hard and fast rule for that purpose. There are no strict guidelines. But a sentencing procedure is . -suggested. This procedure is in the nature of safeguards and has an overarching embrace of rarest of rare dictum. Therefore, it is to be read with Article 21 and 14. [Para 12] [133-A-C] -'-, Swamy Shraddananda @ Murali Manohar Mishra v. State of Karantaka 2008 (10) SCALE 669, referred to. I mm' 4. Under section 235(2) and 354 (3) of the Criminal Procedure Code, there is a mandate as to a full fledged bifurcated hearing and recording of "special reasons" if the court inclines to award death penalty. In the specific backdrop of sentencing in capital punishment, and th~t the matter attracts constitutional prescription in full force, + it is incumbent on the sentencing court to overse,e comprehensive compliance to both the provisions.

scrupulous compliance of both provisions is necessary such that an informed selection of sentence could be based on the information collected and collated at this stage. [Para 13] [133-C-E] Santa Singh v. State of Punjab, AIR 1956 SC 526; Malkiat Singh and Ors. v. State of Punjab, (1991) 4 SCC 341,; ~ Al/audin Mian- v. State of Bihar, AIR 1989 SC 1456; r Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11'; Jumman Khan v. State of U. P, (1991) 1 SCC 752 and Anshad and Ors. v. State of Kamataka, (1994) 4 SCC 381, referred to. 5. The court must play a proactive role to record all relevant information at this stage. Some of the information ... relating to crime can be culled out from the phase prior to sentencing hearing. This information would include, aspects relating to the nature, motive and impact of crime, culpability of convict etc. Quality of evidence adduced is ,.... also a relevant factor. [Para 14) [133-G-H; 134-A] +---- Bachan Singh v. State of Punjab (1980) 2 SCC 684, ,.

relied on. -. "Law Commission's 48th Report", referred to. 6. "Rarest of rare cases" is an exceptionally narrow opening provided in the domain of this negative precept. This opening is also qualified by another condition in form of "when the alternative option is unquestionably ,. Jc foreclosed". Thus, in essence, rarest of rare dictum imposes a wide-ranging embargo on award of death punishment, which can only be revoked if the facts of the case successfully satisfy the double qualification viz. 1. that the case belongs to the rarest of rare category 2. and the alternative option of life imprisonment will just not suffice in the facts of the case. Rarest of rare dictum serves as a guideline in enforcing section 354(3) and + entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly.

That being the case, the rarest of rare dictum -places an extraordinary burden on the court, in case it , I se•ects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The ~background analysis leading to the conclusion that the -. case belongs to rarest of rare category must conform to highest standards of judicial rigor and thoroughness as the norm under analysis is an exceptionally narrow exception. A conclusion as to the rarest of rare aspect with respect to a matter shall entail identification of aggravating and mitigating circumstances relating both to the crime and the criminal. [Para 15] [135-C-G] t _, Ravji alias Ram Chandra v. State of Rajasthan, (1996) 2 SCC 175; Shivaji@ Dadya Shankar A/hat v. The State of Maharashtra, AIR 2009 SC 56; Mohan Anna Chavan v. State --- STATE OF MAHARASHTRA i of Maharashtra (2008) 11 SCC 113; Bantu v. The State of U. P.

, (2008) 11 SCC 113; Surja Ram v. State of Rajasthan, ,. _ (1996) 6 SCC 271; Dayanidhi Bisoi v. State of Orissa, (2003) 9 SCC 310; State of U. P. v. Sattan @ Satyendra and Ors. ,, 2009 (3) SCALE 394, referred to. 7. 1. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative ..... punishment of life imprisonment will be futile and serves no purpose, death punishment, qualitatively stands on ~ very different footing from other types of punishments. It is unique in its total irrevocability. Incarceration, life or otherwise, potentially serves more than one sentencing aims. Deterrence, incapacitation, rehabilitation and -.. retribution - all ends are capable to be furthered in, different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not : hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to ,rehabilitate and ' reform.

It extinguishes life and thereby terminates the being, therefore puts an end anything to do with the life. This is the big difference between two punishments. , ---4 Before imposing death penalty, therefore, it is imperative to consider the same. Rarest of rare dictum, hints at this ... difference between death punishment and the alternative 1 punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of ' reason in the facts and circumstances of the case? Life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second exception to the rarest of rare doctrine, the court will have -- • to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigor when the court \ • i.

- focuses on the circumstances relating to the criminal, ~ along with other circumstanc~s. This is not an easy ....... , conclusion to be deciphered, but Bachan Singh sets the bar very high by introduction of Rarest of rare doctrine. ' [Para 16] [137-0-H; 138-A-D] ·I ,_ 7. 2. Bachan Singh while enunciating rarest of rare doctrine, did not deal with the role and responsibility of ,. _ { I sentencing court and the appellate court separately. For . that matter, this court did not specify any review • A standards for High Court and the Supreme Court. In that 1· I event, all courts, be it trial court, High Court or this court, f are duty bound to ensure that the ratio laid down therein ~ is scrupulously followed. Same standard of rigor and· I .. ~ fairness are to be followed by the courts. If anything, inverse pyramid of responsibility is applicable in death ,.. 0 penalty cases. [Para 17] [140-B-D] - 7. 3.

It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and -heinous nature. Our capital sentencing jurisprudence is f thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering ... }i_ the brutality of crime index. There may be other factors which may not have been recorded. [Para 18] [140-F-H; ··, 141-A] , 7. 4. There is no consensus in the court on the use of "social necessity" as a sole justification in death punishment matters. The test which emanates from Bachan Singh in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open rnirid, relating both to crime and the criminal, irrespective of the gravity or nature of . .. crime under consideration. ·A dispassionate analysis, on the aforementioned counts, is a must.

The courts while •' r STATE OF MAHARASHTRA adjudging on life and death must ensure that rigor and fairness are given primacy over sentiments and emotions. [Para 18] (140-F-H; 141-A] 7. 5. Article 14 and 21 are constitutional safeguards and define the framework for State in its functions, 8 including penal functions. They introduce values of institutional propriety, in terms of fairness, reasonableness and equal treatment, challenge with respect to procedure to be invoked by the State in its . dealings with people in various capacities, including as a convict. The position is, if the State is precariously placed to administer a policy within the confines of Articles 21 and 14, it should be applied most sparingly. This view flows from Bachan Singh and Constitution does not permit to take a re-look on the capital punishment policy an'd meet society's cry for justice through this instrument. [Para 19] (146-8-D] 7. 6.

The fact that this Court is dealing with safeguards entrenched in the Constitution should materially change the way it look for reasons while awarding the death punishment. The arguments which may be relevant for sentencing with respect to various other punishments may cease to apply in light of the· constitutional safeguards which come into operation when the question relates to extinguishment of life. If there are two . considerations, the one which has a constitutional origin shall be favoured. [Para 19] [146-D-F] 7. 7. The constitutional role of the judiciary also mandates taking a perspective on individual rights at a higher pedestal than majoritarian aspirations. To that extent this Court plays a countermajoritarian role. And this part of debate is not only relevant in the annals of judicial review, but also to criminal jurisprudence. [Para 19] [148-A-B] 7. 8. Public Opinion may also run counter to the Rule of law and constitutionalism.

Bhagalpur Blinding case or the recent spate of attacks on right to trial of the accused in the Bombay Blast Case are recent examples. This Court is also not oblivious to the danger of capital sentencing becoming a spectacle in media. If media trial is possibility, sentencing by media can not be ruled out. [Para 19] [148-E-F] 7. 9. Capital sentencing is one such field where the safeguards continuously take strength from the • Constitution, and on that end this Court is of the view that public opinion does not have any role to play. In fact, the case where there is overwhelming public opinion favouring death penalty would be an acid test of the constitutional propriety of capital sentencing process. [Para 19] [150-C-D]' Bachan Singh v~ State of Punjab (1980) 2 SCC 684; Panchhi v. State of U. P. (1998) 7 SCC 177; State of } . Maharashtra v. Sindhi1 (1975) 1 SCC 647; Vashram Narshibhai Rajpara v. State of Gujarat (2002) 9 SCC 168; Om Prakash v.

State of Haryana, (1999) 3 SCC 19 and · Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679, relied on. West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943), referred to. " Michael Hough: "Sentencing and the Climate of Opinion (1996, Criminal Law Review), referred to. 8. 1. This court laid down rarest of rare dictum in Bachan Singh and thereby endorsed a broad sentencing threshold. It has been interpreted by courts in various ways. It is important to note here that principled application of rarest of rare dictum does not come in the STATE OF MAHARASHTRA way of individualized sentencing. With necessary room for sentencing, consistency has to be achieved in the manner in which rarest of rare dictum has to be applied by courts. Bachan Singh expressly barred one time enunciation of minute guidelines through a judicial verdict. The court held that only executive is competent to bring in detailed guidelines to regulate discretion.

On this count judicial restraint was advocated. But at the .... sarne time, it actively relied on judicial precedent in disciplining sentencing discretion to repel the argument of arbitrariness and Article 14 challenge. An embargo on introduction of judicial guidelines was put therein but organic evolution of set of principles on sentencing through judicial pronouncements was not ruled out. This is how precedent aids development of law in any branch of law and capital sentencing can not be an exception to - l of rape. formed a substantial portion of reasoning for causing the death, the death sentence on the accused could no longer be sustained, once he was acquitted on that charge. The sentence was accordingly altered to one of life imprisonment. In Amrit Singh v. State of Punjab [2006 (11) SCALE 309] •-'" the accused had raped a minor girl. The victim died a painful death because of bleeding from h~r privet~ pgrt~.

The court, however, noted that the accuse~ niigflt not have had the intention of murdering the victim, but her death was only the unfortunate inevitable' consequence of the crime, hence it did not fall within the rarest of the rare cases. In Bishnu Prasad Sinha and Anr. v. State ofAssam [2007 (2) SCALE 42], this Court commuted the death penalty of the accused on the ground that the prosecution case was entirely based on circumstantial evidence. ~ In State of Maharashtra v. Prakash Sakha Vasave and ·others, [2009 (1) SCALE 713] the accused had brutally attacked with axes the husband of their sister, who was having an illicit relationship with another woman. The trial court had found two of the accused guilty and sentenced them to death. In appeal the High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court but noticed that the case ......

before it did not fall in the rarest of rare and deserved only a life imprisonment. • 3{0} Differing OQinion in other cases .... 23. While dealing with a matter as to whether death penalty should be awarded or not, although the court ordinarily would look to the precedents, but, this becomes extremely difficult, if not impossible, in the context of the cases discussed above. There is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused F to be affirmed by us, without laying down any legal principle. In Aloke Nath Dutt and Ors. v. State of West Bengal, [2006 (13) SCALE 467] this Court after examining various judgments over the past two decades in which the issues of rarest of rare fell for consideration, admitted the failure on the .... part of this Court to evolve a uniform sentencing policy in capital punishment cases and conclude as to what amounted -~ to 'rarest of rare'.

Disparity in sentencing has also been noted ,D in Swamy Shraddanandci v. State of Karnataka (Swamy Shraddananda - I) [(2007) 12 SCC 288]. In the aforementioned backdrop, we may notice a recent three-Judge Bench decision of this Court in Swamy Shraddananda @ Murali Manohar Mishra (supr_a). Aftab Alam, J. , writing the judgment for the Three-Judge Bench held: ~ "33. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection of the judges constituting the bench. 34. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process byJhe Court lead to a marked imbalance in the end results.

On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much () ' , ~ • wider area of cases in which the offender committing...... _ murder of a similar or a far more revolting kind is spared ...... his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System. Thus the overall larger picture gets 8 asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. This ~ situation is matter of concern for this Court and needs to be remedied. " The issue of subjectivity has also been previously noticed by both academics and this Court. Professor Anthony R. Blackshield's analysis in the mid 1970s showed this trend in . ,the pre-Bachan Singh period.

[see Journal of the Indian Law Institute 1979). This was also noticed by Bhagwati, J. in his dissenting judgment in Bachan Singh (supra). In the post-Bachan Singh period, a joint report by the Amnesty International - India and People's Union for Civil Liberties Report titled "Lethal Lottery: The Death Penalty in India, A study of Supreme Court Judgments in death penalty cases 1950-2006" and the Swamy Shraddananda (supra) judgment show quite clearly that not much has changed in this respect. ).. " To assist future benches at considering the facts of individual cases however, the Constitution Bench in Bachan Singh (supra) did however note certain aggravating and mitigating factors mentioned by the Amicus Curie (drawn from jurisprudence from the USA as also Clauses (2)(a), (b), (c) and (d) of the already lapsed Indian Penal Code (Amendment) Bill, 1972). The Supreme Court did however endorse them, referring ~ ...

to them as "undoubtedly relevant circumstances and must be given great weight in the determination of sentence". Machhi Singh v. State of Punjab, [ (1983) 3 SCC 470 ] .. , went further and made a tabular comparison of such mitigating and aggravating circumstances. Yet as the above discussion has clearly shown, it is now clear that even the balance-sheet of aggravating and mitigating circumstances approach invoked on a case by case basis has not worked sufficiently well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of "rarest of rare cases" h,as been most variedly and inconsistently applied by the various High Courts as also this court.

At this point we also wish to point out that the uncertainty in the law of capital sentencing has special consequence as the matter relates' to death penalty - the gravest penalty arriving out of the exercise of extraordinarily wide sentencing discretion, which is irrevocable in nature. This extremely uneven application of Bachan Singh (supra) has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. The situation is unviable as legal discretion which is conferred on the executive or the judiciary is only sustainable in law if there is any indication, either though law or precedent, as to the scope of the discretion and the manner of its exercise. There should also be sufficient clarity having regard to the legitimate aim of the measure iri questio11t Constitution of India provides for safeguards to giv(? the individual adequate protection against arbitrary imposition of criminal punishment.

Although these questions are not under consideration and cannot be addressed here and now, we cannot help but observe the global move away from the death penalty. Latest statistics show that 138 nations have now abolished the death penalty in either law or practice (no executions for 10 years). Our own' neighbours, Nepal and Bhutan are part of these abolitionist nations while others including Philippines and South Korea have also recently joined the abolitionist group, in law and in practice respectively. We are also aware that on 18 December· 2007, the United Nations General Assembly adopted resolution· 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions With a view to abolishing the death penalty. India is, however, one of the 59 nations that retain the death penalty.

Credible research, perhaps by the Law 8 Commission of India or the National Human Rights Commission may allow for an up to date and informed discussion and debate on the subject. CONSTITUTIONAL LANDSCAPE ON CAPITAL SENTENCING: MINIMUM SAFEGUARDS 24. We have already dealt with the ratio of Bachan Singh (supra) in detail but here we would focus on the backdrop to the Rarest of rare dictum and the dilemma faced by the Bachan Singh court in this regard. The perspective which emerges from 0 this reading showcases the constitutional riddle which is inherent to law on capital sentencing in India. At the very outset Bachan Singh (supra) delineated the scope of the matter in the following terms: "The principal questions that fall to be considered in this case are: (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, whetherthe sentencing procedure provided in Sec.

354(3) of the Code of Criminal Procedure, 1973 is unconstitutional on the ground that it invests the Court with unguided and untrammeled 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 the alternative, with imprisonmE? nt for life. " STATE OF MAHARASHTRA [S. S. SINHA, J. ] In the ensuing discussion, the court held that Sections 302 Penal Code and 354(3) of the Code of Criminal Procedure, ~- 1973 are constitutional but only after enunciating "broad guidelines and principles" which today govern the practice on capital sentence in all courts, be it trial courts or the appellate courts. In one sense, the scope of Bachan Singh (supra) was fully r met when it practically declared death penalty (procedurally and substantively) constitutional but the bench went on to entrench an unprecedented jurisprudence on the sentencing front.

This jurisprudence, of which Rarest of rare dictum is the central part, forms the bed rock of death penalty jurisprudence. The way ahead shown by Bachan Singh (supra) is not merely in .. compliance of statutory safeguards under section 354(3) and section 235(2) but also of Rarest of rare dictum. Therefore, the overall legislative scheme on death penalty was cleared of constitutional challenge only after it was conjoined with the Rarest of rare dictum. Thomas, J. also reached to a similar conclusion in Ram Deo Chauhan v. State of Assam [(2001) 5 SC 714]: ;.. "A peep into the historical background of how death penalty survived Article 21 of the Constitution would be ~I useful in this context.

Apart from the two schools of thought putting forward their respective points of view stridently - one pleading for retention of death penalty and the other for abolition of it a serious question arose whether the law enabling the State to take away the life of a person by way of punishment would be hit by the forbid contai. ned in Article 21 of the Constitution. In Bachan Singh vs. State of Punjab (supra) the majority Judges of the Constitution Bench saved the death penalty from being chopped out of the statute book by ordering that death penalty should be strictly restricted to the tiniest category of the rarest of the rare cases in which the lesser alternative is unquestionably foreclosed. " On a deeper reading of Bachan Singh (supra) it becomes clear that the court was operating under two fundamental constraints while dealing with the constitutionality challenge: 8 Firstly, death penalty is mentioned in the Constitution (for instance under Article 161 and Article 72(1)(c).

Constitutional "'1 recognition was taken to be a primary signal for the legitimacy for section 302. Secondly, owing to separation of power doctrine, the court took a deferential view towards section 354(3) which was brought in to discipline the courts on death penalty by making life imprisonment the rule and death penalty exception. Laboring under the aforementioned constraints, the death penalty was held constitutional. This affirmative response to constitutionality of death penalty presented another complicated challenge which related to administration of death penalty or in other words, sentencing of capital punishment. This has been universally considered as a vexed question of law and practice and has not been satisfactorily dealt with in any jurisdiction so far. ). It is interesting to note here that this Court opined in State Iof Punjab v. Prem Sagar and Ors. [JT 2008 (7) SC 66], as late as 2008, that there is no sentencing policy in India.

But Bachan Singh (supra) treated death penalty as an exceptional penalty, different from any other punishment, and did lay down policy prescription on sentencing, way back in 1980. We have also noticed that in numerous decisions of this court, constitutional guarantees have been invoked at some stage of capital sentencing. Similarly, rarest ofrare dictum takes its colour from constitutional guarantees. 1. "JUSTICE" IN CAPITAL SENTENCING 25. Justice must be the first virtue of the law of sentencing. A sentencing court must consider itself to be a "forum of principle". The central idea of such a forum is its continuing commitment to inhere a doctrinal approach around a core 8 normative idea. "Principled reasoning" flowing from judicial precedent or legislation is the premise from which the courts r derive the power.

The movement to preserve substantial judicial discretion to individualize sentences within a range of punishments also has its basis in the court's ability to give principled reasoning. The claim of sentencing to being a principled exercise is very important to the independent and unpartisan image of judiciary. R. v. Willaert (1953), 105 C. C. C. 172 (Ont. C. A. ) way _, /. back in 1953, envisaged the role of judge in sentencing as "an /. art-a very difficult art-essentially practical, and directly related to the needs of society. " We have now come from that ' ; . description of court to court as "forum of principle". This role is consistent with the constitutional mandate of due process and · equal protection. (See Ronald Dworkin, The Forum of Principle 56 NYU L. Rev.

469 (1981) for more on "forum of principle"; for more on justice and sentencing see Von Hirsch and Andrew Ashworth, The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning Proportionate Sentencing: Exploring The Principles, Oxford University Press, 2005) There is a fundamental relationship between the legitimacy of sentence belonging to a particular potency and the reasons accorded by the court to justify the same. This flows from the inherent nature of punishment which can be understood as a coercive force invoked by the state for a legitimate purpose. It was Bentham who said that "all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some " '' greater evil. " (See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in A Fragment of Government with An Introduction to the Principles of Morals and - Legislation 281 (1948).

) The reasons which are accc;:irded by the court to justify the ! punishment should be able to address the questions relating L to fair distribution of punishment amongst similarly situated "'j convicts. This may be called the problem of distributive justice in capital sentence. In this context, the inquiry under Article 14 becomes significant. Fairness in this context has two aspects: t First refers to fair distribution amongst like offenders And the second relates to the appropriate criteria for the .. punishment. -, The sentencing process, based on precedents around Bachan Singh (supra), should help us to determine specific, deserved sentences in particular cases. The reason as to why questions of justice play such an important part in the distribution of capital punishment; lies in the special nature of capital punishment itself.

Distributive justice is a relative notion: one can never determine whether one has received one's fair share except by comparison with that which has been allocated to others. Both questions are intertwined when we speak of J. Capital Sentence. Scholars have described the problem of disparate sentencing variously. Characterizing a situation before sentencing reforms swept American jurisdiction, when judges were using personal judgments to decide the questions of ~ sentencing, Marvin Frankel referred the practice as "wasteland i in the law" and the general situation as one of "lawlessness. " (See Marvin E. Frankel, Lawlessness in Sentencing, 41 U. Cin. / L. Rev. 1 (1972)) 2. EQUAL PROTECTION CLAUSE 26. A survey of the application of Rarest of rare doctrine in various courts will reveal that various courts have given their own meaning to the doctrine.

This variation in the interpretation of Rarest of rare analysis may amount to be constitutionally 8 infirm because of apparent arbitrariness on the count of content of the doctrine. f The moot question is whether, after more than quarter of a century since Bachan Singh (supra) recognized death penalty as a constitutionally permissible penalty, we can distill a meaningful basis from our precedent on death penalty, for· distinguishing the few cases in which the capital sentence is imposed from the many cases in which it is not? A similar question was put by Justice Stewart in Furman (supra). He noted death sentences are cruel and unusual in the same way as being "struck by lightning is cruel and unusual". Moreover, the petitioners sentenced to death were seen as "capriciously selected random handful" and the question posed was whet~er the eighth amendment could tolerate death sentences "so wantonly and so freakishly imposed.

" Today, it could be safely said in the context of Indian experience on death penalty that no standards can be culled out from the judge made law which governs the selection of penalty apart from broad overall guideline of Rarest of rare under Bachan Singh (supra). FI Frequent findings as to arbitrariness in sentencing under section 302 may violate the idea of equal protection clause implicit under Article 14 and may also fall foul of the due process requirement under Article 21. It is to be noted that we are not focusing on whether wide discretion to choose between life imprisonment and death punishment under section 302 is constitutionally permissible or not. The subject-matter of inquiry is how discretion under section 302 may result in arbitrariness in actual sentencing. Section 302 as held by Bachan Singh (supra) is not an example of law which is arbitrary on its face but is an instance where law may have been arbitrarily administered.

In Swamy Shraddananda (supra), this court noted arbitrariness-in-fact prevalent in the capital sentencing process with extraordinary candour: "Coupled with the deficiency of the Criminal Justice System is the lack of consistency in the sentencing process even by this Court. It is noted above that Bachan Singh laid down the principle of the Rarest of . rare cases. Machhi Singh, for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the Rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently. In Aloke Nath Dutta v. State of West Bengal Sinha J. gave some very good illustrations from a number of recent decisions in which on similar facts this Court took contrary views on giving death penalty to the convict (see paragraphs 154 to 182, pp. 504-510 SCALE).

He finally observed that ·courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar' and further 'it is evident that different benches had taken different view in the matter'. Katju J. in his order passed in this appeal said that he did not agree with the decision in Aloke Nath Dutt in that it held that death sentence was not to be awarded in a case of circumstantial evidence. Katju J. may be right that there can not be an absolute rule excluding death sentence in all cases of circt,. Jmstantial evidence (though in Aloke Nath Dutta it is said 'normally' and not as an absolute rule). But there is no denying the illustrations cited by Sinha J. which are a matter of fact. 32. The same point is made in far greater detail in a report called, "Lethal Lottery, The Death Penalty in India" ,H compiled jointly by Amnesty International India and Peoples Union For Civil Liberties, Tamil Nadu & Puducherry.

The report is based on the study of Supreme Court judgments in death penalty cases from 1950 to 2006. One of the main points made in the report (see chapter 2 to 4) is about the Court's lack of uniformity and consistency in awarding death sentence. 33. The truth of the matter is that the question of death penalty is not free from the subjective element and the confirmation of death sentence or its commutation by this Court depends a good deal on the personal predilection ofthe judges constituting the bench. 34. The inability of the Criminal Justice System to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the Court lead to a marked imbalance in the end results.

On the one hand there appears a small band of cases in which the murder convict is sent to the gallows on confirmation of his death penalty by this Court and on the other hand there is a much wider area of cases in which the offender committing murder of a similar or a far more revolting kind is spared . his life due to lack of consistency by the Court in giving punishments or worse the offender is allowed to slip away unpunished on account of the deficiencies in the Criminal Justice System. Thus the overall larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. This situation is matter of concern for this Court and needs to be remedied. 35. These are some of the larger issues that make us feel re·luctant in confirming the death sentence of the appellant. Equal protection clause ingrained under Article 14 applies to the judicial process at the sentencing stage.

We share the court's unease and sense of disquiet in Swamy Shraddananda case and agree that a capital sentencing system which results in differential treatment of similarly situated capital convicts effectively classify similar convict . differently with respect to their right to life under Article 21. Therefore, an equal protection analysis of this problem is appropriate. In the ultimate analysis, it serves as an alarm bell because if capital sentences cannot be rationally distinguished from ,. a significant number of cases where the result was a life sentence, it is more than· an acknowledgement of an imperfect sentencing system. In a capital sentencing system if)his happens with some frequency there is a lurkjng conclusion as regards the capital sentencing system becoming constitutionally arbitrary. n We have to be, thus, mindful that the true import of Rarest ~ of rare doctrine speaks of an ~xtraordinary and exceptional case.

When the court is faced with a capital sentencing case, a comparative analysis of the case before it with other purportedly similar cases would be in the fitness of the scheme of the Constitution. Comparison will presuppose an identification of a pool of equivalently circumstanced capital defendants. The gravity, nature and motive relating to crime will +· play a role play a role in this analysis. Next step would be to deal with the subjectivity involved in capital cases. The imprecision of the identification of aggravating and mitigating circumstances has to be minimized. It is to be noted that the mandate of equality clause applies to the sentencing process rather than the outcome. The comparative review must be undertaken not to channel the sentencing discretion available to the courts but to bring in consistency in identification of various relevant circumstances. The aggravating and mitigating circumstances have to be separately identified under a rigorous measure.

Bachan Singh (supra), when mandates principled precedent based sentencing, compels careful s. crutiny of mitigating circumstances and aggravating circumstances and then factoring in a process by which aggravating and mitigating circumstances appearing from the pool of comparable cases can be compared. The weight which is accorded by the court to particular aggravating and mitigating circumstances may vary from case to case in the name of individuarized sentencing, but at the same time reasons for apportionment of weights shall be c' forthcoming. Such a comparison may point out excessiveness as also will help repel arbitrariness objections in future. A sentencing hearing, comparative review of cases and similarly aggravating and mitigating circumstances analysis can only be given a go by if the sentencing court opts for a life imprisonment. 3. THE "RAREST" OF "RARE CASES" 27.

Bachan Singh (supra) laid down its fundamental threshold in the following terms: "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the Rarest of rare cases when the alternative option is unquestionably foreclosed. " To translate the principle in sentencing terms, firstly, it may be necessary to establish general pool of rare capital cases. Once this general pool is established, a smaller pool of rare cases may have to established to compare and arrive at a finding of Rarest of rare case. 4. ARTICLE 21 28. Right to life, in its barest of connotation would imply right to mere survival. In this form, right to life is the most fundamental of all rights. Consequently a punishment which aims at taking away life is the gravest punishment. Capital punishment imposes a limitation on the essential content of the fundamental rightto life, eliminating it irretrievably.

We realize the absolute nature of this right, in the sense that it is a source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the right to life. Right to life is the essential content of all rights under the Constitution. If life is taken away all, other rights cease to exist. South African constitutional court in S v. Makwanyane [1994 (3) SA 868 (A)} captures the crux of right to life in following terms: "Prisoners are entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed. A prisoner is not stripped naked, bound, gagged and chained to his or h~ cell.

The right of association with other prisoners, the right to exercise, to write and receive letters and the rights of personality referred to by Innes J are of vital importance to prisoners and highly valued by them precisely because they are· confined, have only limited contact with the outside world, and are subject to prison discipline. Imprisonment is a severe punishment; but prisoners retain all the rights to which every person is entitled under Chapter 3 subject only to limitations imposed by the prison regime that are justifiable under section 33. Of these, none are more important than the section 11 (2) right not to be subjected to "torture of any kind ... nor to cruel, inhuman or degrading treatment or punishment". · There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether. It is that difference with which we are concerned in the "' present case.

" "'-· This court has acknowledged Death Punishment to be the most extraordinary penalty in various decisions. In Shankarlal Gyarasila/ Dixit v. State of Maharashtra [(1981) 2 SCC 35] the court held: "Unfaithful husbands, unchaste wives and unruly children T are not for that reason to be sentenced to death if they commit murders unconnected with the state of their equation with their family and friends. The passing of the sentence of death must elicit the greatest concern and solicitude of the Judge because, that is one sentence which cannot be recalled. " ,(~ Therefore, in the context of punishments, the protections emanating from Article 14 and Article 21 have to be applied in the strictest possible terms. flt this juncture, it is best to point out that the ensuing discussion, although applicable in constitutionality context, is carried out in the context of sentencing of death punishment.

In every capital sentence case, it must be borne in mind that the threshold of rarest of rare cases is informed by Article 14 and 21, owing to the inherent nature of death penalty. Post Bachan Singh (supra), capital sentencing has come into the folds of constitutional --j adjudication. This is by virtue of the safeguards entrenched in Article 14 and 21 of our constitution. Article 21 imposes two kinds of limitations, which overlap in their reach, on punishments: 4{A}. Due ~rocess reguirement 29. With non-capital punishments, a more severe ' . -punishment for one offender than another is commonly accepted, even in similar circumstances. The infinite gradation's of guilt and the limits of human capacity to judge cause us to overlook differential treatment of apparently similar convicts. As the relative severity of punishment increases, how ever, it becomes more difficult to overlook sentencing disparities. Death is the most severe of all punishments.

_,, The US Supreme Court has acknowledged that there is a profound and immeasurable gap between a death sentence and a life sentence. In Woodson, [428 U. S. at 305] the court held that there is a corresponding difference in the need for reliability in the determination that death is the appropriate 1 punishment in a specific case. (see also Lockett, [438 U. S. at 604]) In Rummel v. Estelle, [445 U. S. 263, 272 (1980)], the Court noted that challenges to the excessiveness of particular sentences have rarely been successful in non-capital cases. Fairness to any capitally sentenced convict, therefore, ~.. requires an assessment of the relative propriety of the sentence. Because of their irrevocability and severity, the Constitution requires greater reliability and fairness from sentencing courts for,. capital sentences than for non-. capital sentences. 4(8). Proportionality Requirement 30.

The Can~qian Charter of Rights makes provision for the limitation of rights through a general clause. Section 1 of the Charter permits such reasonable limitations on Charter rights "as can be demonstrably justified in a free and ~ democratic society". In R. v. Oakes, [1986] 1 $. C. R. 103 it was held that in order to effect a limitation, there has to exist a sufficient objective to warrant the limitation of the right in question. There should also be proportionality between the limitation and such objective. In a frequently-cited passage, Dickson, J. described the components of proportionality as follows: "There are, in my view, three important components of a ,_ • proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected . / j to the objective.

Secondly, the means, even if rationally connected to the objective in the first sense, should impair 'as little-as possible' the right or freedom in question: R v Big M Drug Mart Limited (supra). Thirdly, there must be a proportionality between the effects 8 of the measures which are responsible for limiting the charter right of freedom, and the objective which has been identified as of 'sufficient importance'. " During the sentencing process, the sentencing court or the appellate court for that matter, has to reach to a finding of a rational and objective connection between capital punishment and the purpose for which it is prescribed. In sentencing terms, "special reasons" as envisaged under section 354(3) Code of Criminal Procedure have to satisfy the comparative utility which capital sentence would serve over life imprisonment in the particular case. The questior. Nhether the punishment grar]ted impairs the right to life under Article 21 as little as possible. R. v.

Chaulk, (1990] 3 S. C. R. 1303] suggested that the means must impair the right "as little as is reasonably possible".. The court held: "Where cha. ices have to be made between "differing reasonable policy options", the courts will allow the Government the deference due to legislators, but "(will) not give them an unrestricted licence to disregard an 1 individual's Charter rights. Where the Government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down". " The fact that capital sentence is a live penalty in India; we should strive to tune the practice to the evolving standards of maturing society. The normative thresholds attached thereto and evolving constitutional sensibilities shall continue to throw ~ fresh challenges. We have not fully resolved the dilemma arising from the fact that the Constitution prohibits excessive .

,, punishment borne out of undue process, but also permits, and contemplates that there will be capital punishment arising out of an exercise of extremely wide discretion. This dilemma is inherently difficult to resolve. And we should refrain from enforcing any artificial peace on this landscape. -i While chasing for one option or the other, these constitutional principles must be borne in mind. The nature of capital sentencing is such that it is important that we ask the right questions. Tony Bottoms very aptly puts this general sentencing dilemma, which become much more acute in capital sentencing. He comments, that "justice" and punishment _,.. , when applied to sentencing are "asymmetrical concepts, in the sense that it is reasonably easy to establish what is unjust or undeserved, but not what, precisely, is just or deserved. " (See Anthony Bottoms, The Philosop'. 1y and Politics of Punishment and Sentencing, in The Politics of Sentencing Reform 20 (C. M. V. Clarkson & R.

Morgan eds. , 1995)) Principle of prudence, enunciated by Bachan Singh (supra) is sound counsel on this count which shall stand us in good stead - whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop/ j. -rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the "rule" of life imprisonment rather than invoking the "exception" of death punishment. ) SENTENCING IN THIS CASE - BACHAN SINGH TEST 31. Let us now examine the relevant factors relating to \ .. sentencing in this case, keeping in mind the letter and spirit of the Bachan Singh (supra). Kumar Gaurav (PW-1) has given the details of the incident. / 1 We have already noted his statement before the court primarily on the deposition of the said Approver, Kumar Gaurav, whereupon the prosecution relies to establish that the accused deserves the harshest punishment.

Accused No. 1 however has a different story to tell. As per 8 him he himself, Kumar Gaurav (PW-1) and Kartikraj (the deceased) had staged a fake kidnapping to extract money from ·t ( Kartikraj's parents. It is evident from his deposition that all persons involved were in the night of the incident having a party at his flat situated in Amrapali Society. They were drunk. They had watched movies all night on the VCR. They made a phone call at the residence of the father of Kartikraj, demanding . ransom. It was done only on the suggestion of Kumar Gaurav (PW-1 ), the Approver. It was he who had suggested that they could earn a good amount pretending to kidnap someone amongst them. Kartikraj was chosen since his father was from a wealthy family. It was Kartikraj himself who had dialed his father's number and- handed over the phone to Kumar Gaurav (PW-1). As per the appellant, they had continued the party even on the next day.

Since all the liquor had been consumed he himself / and the deceased had at about 4. 00 p. m. gone out to purchase -4 some more liquor. Thereafter he had left the place to finish his work and when he came back, he found Kartikraj lying in front of the toilet having sustained head injuries. We may notice his statements from the judgment of the learned Sessions Judge in the following terms: 'Thereafter, as he had some work, he dropped Kartikraj to that flat and went to finish his work. Thereafter, when he came back to that flat, he saw Kartikraj lying in front of the ---- iios9 ;, ' : [Emphasis ·supplied] Most research on this issue shows that the relationship S~tw@efWtf~l@R®e@ §fi8£%iOOerlf91? ir- ~rslt¥m@flt is·complicated. - IPfr& fi0? &b\t18~s)Jhgw· Mef:e\~en~e. "'~'Mes'lf'Cf''severity and _ ? eeft~frt\Y? ::i~Hrtfl~Alt:>f@ ~irHififilvp-bn(ij1%UsP~lffVicfo'nce-1ed. c. r f~tnt! ti. tAaA Ba"S%8 8n'1fit'MtfltidS? WlileR f? fstelcltrc'. \¥€itd1:1f\'cflfl! lew6r1d · R:! fs>r!

ifi~wfii~ifu'<blft@~ f01£b@<wro~. i fll ~esaeserr&! n~0any, 1 sir@im&tRt1%Wlifr? i~~1.. tel. t'~n. ~116~2r& \! ffi~ ~s~. 1§f:lSJ! j'. f81;Mc:ffiffi. t oohirnaiS~i~~ w~%a~ncenq}S'saftt&t~fig. ev@~1tY 1Wpeh~hffi~t1 . ·1;1 ~Mr~~ R,rif6 e~r:ren&--el~@9cf~'l:ffflffnPWlifePF'j~sftti§~J'illfeJ • Pi . 92SJ '(19V9 ni 2s0nsl2rnu:J1b gnitsgitim erlt oi nevig sd taum STATE OF MAHARASHTRA [S. S. SINHA, J. ] restriction of the most fundamental human right through the imposition of the death penalty. The goal of crime reduction can be achieved by better police and prosecution service to the same or at least to a great extent than by the imposition of the death penalty. In this respect, we may furthermore add here that in the most recent survey of research findings on the relation between 1 the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, it was stated: "...

it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment. " [See Roger Hood, The Death Penalty: A World-wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230] [See also Kennedy v. Lousiana (128 S. Ct. 2641)] MITIGATING CIRCUMSTANCES 32. Determination, as to what would be the rarest of rare cases, is a difficult task having regard to different legal •\ principle~ involved in respect thereof. With the aforementioned backdrop, we may notice the circumstances which, in our opinion, should weigh with us for not imposing the extreme penalty. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind.

We will assume that in Swamy G' Shraddananda (supra), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contra-distinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of the circumstantial evidenee, the circumstantial evidence must be such which leads to an exceptional case. We must, however, add that in a case of this nature... where the entire prosecution case revolves round the statement of an approver or dependant upon the circumstantial evidence, the prudence doctrine should be invoked.

For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view of evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. 0 A statement of approver in regard to the manner in which crime has been committed vis-a-vis the role played by the accused; on the one hand, and that of the approver, on the other, must be tested on the touchstone of the prudence doctrine The accused persons were not criminals. They were friends. The deceased was said to have been selected because his father was rich. The motive, if any, was to collect some money. They were not professional killers. They have no 1criminal history. All were unemployed and were searching for jobs.

· Further if age of the accused was a relevant factor for the High Court for not imposing death penalty on accused No. 2 and 3, the same standard should have been applied to the case of the appellant also who was only two years older and still a young man in age. Accused Nos. 2 and 3 were as much a part of the crime as the appellant. Though it is true, that it was he who allegedly proposed the idea of kidnapping, but at the same time if must not be forgotten that the said plan was only executed when all the persons involved gave their consent thereto. It must be noted that the discr~tion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty.

One of the principles which we think is clear is that the case is such where two views ordinarily could be taken, imposition of death sentence would not be appropriate, but where there is no other option and it is shown that reformation is not possible, death sentence may be imposed. Section 354(3) of the Code of Criminal Procedure requires that 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 thereof. 33. We do not think that the reasons assigned by the courts below disclose any special reason to uphold the death penalty. The discretion granted to the courts must be exercised very cautiously especially because of the irrevocable character to death penalty. Requirements of law. to assign special reasons should not be construed to be an empty formality. 34.

We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined on a case-by-case basis with death sentence not to be awarded save in the 'rarest of rare' case where reform is not possible. Keeping in mind at least this principle we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no A special reasons to record the death penalty and the mitigating factors in the present case, discussed previously, are, in our opinion, sufficient to place it out of the "rarest of rare" category. 35.

For the reasons aforementioned, we are of the opinion 'B that this is not a case where death penalty should be imposed. The appellant: therefore, instead of being awarded death penalty, is sentenced to undergo rigorous imprisonment for life. r Subject to the modification in the' sentence of appellant (A1) mentioned hereinbefore, both the appeals of the appellant as C . also that of the State are dismissed. G. N. Appeals dismissed.