Ganguly, J
1. I have gone through the judgment prepared by My Lord Hon’ble Dr. Justice Pasayat, but I have not found myself in entire agreement with the conclusions reached by His Lordship. I need hardly say that it is only with great respect to His Lordship that I venture to express a divergent opinion on the sentence and I consider it my sacred duty as a judge to do so. In my view in this case death penalty cannot be inflicted on the appellant.
2. From the judgment of His Lordship, it appears that the case against the appellant rests on circumstantial evidence. Those circumstances have been noted by the Hon’ble High Court and adverted to by His Lordship in the judgment. Twelve circumstances have been noted and they are as follows:-
I. The 1st circumstance is that the deceased was raped and she died a homicidal death.
II. The 2nd circumstance is that the deceased victim who was aged about 10 years was residing with her parents in flat No.A/2 of Sanudip Apartment located on Rander Road of Surat City.
III. The 3rd circumstance is that the appellant was serving as a Watchman since long and he was residing with his family in a room located on ground floor of Happy Home Apartments situated opposite Sanudip Apartment, Surat.
IV. The 4th circumstance is that the accused appellant had won the confidence of the victim as a result of which the victim had reposed confidence in the appellant.
V. The 5th circumstance which is sought to be proved is that between 8.45 p.m. and 9.00 p.m. on December 17, 1999 the appellant was last seen playing badminton with the deceased in Sanudip Apartment.
VI. The 6th circumstance which is sought to be proved is that on December 17, 1999 at about 10.30 p.m. the parents of the victim returned home and found that the deceased was missing.
VII. The 7th circumstance which is sought to be relied upon by the prosecution is that between 9.00 p.m. and 9.30 p.m on December 17, 1999 Vishnubhai Bahadur (PW-24) had seen the appellant taking the deceased on his cycle near Adajan Patia, Surat.
VIII. The 8th circumstance is that after PW-24 had disclosed before Shankarbhai (PW- 6) and others that he had seen the appellant going on a cycle towards Jakat-Naka with the deceased, a search was made and appellant was found missing.
IX. The next circumstance which is sought to be relied upon by the prosecution is that in the morning of December 19, 1999 witness Chandravadan who was going home had seen the accused sitting at an open place near Bhulka Bhavan School and had approached the appellant and on enquiry being made the appellant had made extra judicial confession before him at that time.
X. The other circumstance which is sought to be proved by the prosecution is that on arrival of police at Sanudip Apartment after being informed by complainant Nareshbhai the appellant had shown the place of incident where the dead body of the deceased was found lying.
XI. The next circumstance is that at the instance of the accused appellant his cycle and school bag of the deceased were recovered and school bag was found containing anklets and earrings belonging to the deceased.
XII. Human Blood was found from T-shirt of the accused and no explanation was offered by the appellant as to how human blood was found on his T-shirt.
3. On going through those circumstances, to my mind, the first three circumstances, by themselves, do not fasten any guilt on the appellant. In conjunction with other circumstances they may be relevant. However the 4th, 5th, 7th, 8th, 9th, 10th, 11th and 12th circumstances might have been considered relevant by His Lordship for bringing home the guilt of the appellant and then bringing the case within the rarest of rare cases, a principle formulated by the majority judgment in Bachan Singh Vs. State of Punjab - AIR 1980 SC 898, by this Court for imposing death penalty.
4. Since I differ with His Lordship on the question of inflicting the death penalty on the appellant, I propose to consider the evidence leading onto some of those circumstances.
5. To prove the fourth circumstance, the prosecution examined witness Kailashben, who is the mother of the deceased. Kailashben deposed that the appellant used to take the victim to school on his cycle and leave her at school when the rickshawallah failed to turn up to take her to school. The same version has been given by another witness, Chandravadan Nagin Bhai Patel (PW.4). The High Court has also noted that the appellant, in his written statement had stated that the deceased would occasionally play with his daughter and come to his room and that he never misbehaved with the deceased. These pieces of evidence cannot be said to fasten any guilt on the appellant. However, the High Court on appreciation of these pieces of evidence came to the conclusion that the prosecution proved that the appellant had enticed the victim to come with him and the fact that the appellant took the victim on the bicycle on December 17, 1999 becomes “plausible and acceptable”.
6. Therefore, the High Court’s conclusions on the 4th circumstance are not very definite. The High Court itself considered its conclusion in respect of the 4th circumstance a ‘plausible one’. Imposition of death sentence by considering one of the circumstances which High Court finds ‘plausible’ is, to my mind, in defiance of any reasoning which brings a case within the category of the ‘rarest of rare cases’.
7. In proving the 5th circumstance, the prosecution relied heavily on evidence of the child witness, namely Darshanaben. When she deposed, before the Court in 2004, she was 17 years old. The incident happened in 1999 and at that time, she must have been 12 years old.
8. In the examination-in-chief, she stated that she went to Sanudip Apartments between 8 and 8:30 p.m., she and the deceased were playing badminton. At that time, one Jayanti Dada was sitting near the STD shop. However, the evidence of Jayanti Dada is not forthcoming even though the witness said when she went for dinner in the house of the deceased, Jayanti Dada was playing badminton with the deceased. After dinner, the witness came back and again started playing with the deceased. Then, her father came and took her home. At this point, her evidence in chief is “thereafter, Khusbu (the deceased), was playing badminton with the appellant”. According to her evidence, they were playing badminton at about 9 p.m.
9. For the appreciation of the evidence of a child witness, this Court has evolved certain principles and in some of its judgments this Court has relied on the proposition formulated by Justice Brewer in Wheeler Vs. United States - 159 US 523 (1895).
10. Justice Brewer opined that the evidence of a child witness is not to be rejected per se but rule of prudence demands that it should be subjected to a close scrutiny. If on a close scrutiny, the Court finds it reliable, even conviction can be based on it.
11. This principle laid down in Wheeler (supra) has been accepted by this Court in Ratansinh
Dalsukhbhai Nayak Vs. State of Gujarat - (2004) 1 SCC 64, at pg. 67 and also in Nivrutti
Pandurang Kokate and Others Vs. State of Maharashtra - (2008) 12 SCC 565, at pg. 567.
12. Even earlier than that, this Court in Dattu Ramrao Sakhare and Others Vs. State of Maharashtra
- (1997) 5 SCC 341, had held that there is no rule of practice that the evidence of a child witness needs corroboration in order to base conviction on it. However, as a rule of prudence, the Court insists it is desirable to have corroboration from other dependable evidence (See page 343).
13. In Suryanarayana Vs. State of Karnataka - (2001) 9 SCC 129, this Court held that corroboration
of the testimony of a child witness is not a rule but is a measure of caution and prudence (See page 133).
14. In this case, of course, there is some corroboration of the evidence of the child witness from the deposition given by Shankarbhai, who mentioned that, the accused was playing badminton with the deceased. So far as the 5th circumstance is concerned, guilt of the appellant did not surface till then.
15. So far as the 6th circumstance is concerned, the same is that the deceased was found missing by her parents when they returned home on 17.12.1999 at about 10.30 p.m. This also does not indicate any guilt of the appellant.
16. The 7th and 8th circumstances are very crucial and in this connection, the evidence of PW.24 is very vital for fastening the guilt on the appellant. PW.24 in his evidence in chief said that he had seen the appellant taking the deceased on a bicycle between 9.00 to 9.30 p.m. The said witness was having the business of selling Chinese food in a lorry near Adajan Patiya Char Rasta. But in his cross-examination he has said “on the date of incident at about 8.00 p.m. I had seen Ramesh with Khushbu, who was going on cycle sitting behind Khushbu, on the road Adajan Patiya Char Rasta opposite to my lorry”.
17. This is a vital discrepancy. The evidence of the child witness corroborated by Shankarbhai is that, deceased was playing badminton till about 9.00 p.m. The deceased was first playing with the child witness, then with Jayanti Dada and then again with the child witness and ultimately with the appellant when the child witness left the apartment with her father for their house. Therefore, the evidence of PW.24, which is adduced by the prosecution to prove the theory of ‘last seen’ is that on 8.00 p.m. PW.24 had seen the appellant and the victim going on a cycle in front of his lorry from which he was selling Chinese food.
18. In that case, the deceased and the appellant must have left the apartment before 8 p.m. Thus there is a very vital discrepancy about time between the evidence of child witness as corroborated by Shankarbhai and the evidence of PW.24 on the question of ‘last seen’. The prosecution sought to prove this ‘last seen’ theory on the basis of the 5th and 7th circumstances. This discrepancy has not been noticed either by the High Court or in the judgment of His Lordship.
19. The next, the 8th circumstance, as noted in the judgment of His Lordship is that after PW.24 had disclosed before Shankarbhai (PW.6) that he had seen the appellant going on a cycle towards Jakat Naka with the deceased, a search was made and the appellant was found missing. From the evidence of Vishnu Bahadur (PW.24), it appears that on the date of the incident i.e. 17.12.1999, after he saw the appellant going with the deceased on a cycle and he called the appellant to stop, the appellant did not stop the cycle and was going towards Jakat Naka. Thereafter his evidence in chief is that he closed the lorry at about 11.00 p.m. and went to his house and slept. On 17.12.1999 Vishnu Bahadur (PW.24) did not meet Shankarbhai (PW.6). On the next day i.e. 18.12.1999 at about 1.00 to 1.30 p.m., Vishnu Bahadur (PW.24) after cooking Chinese food in his house went to Sanudip Apartment and met Shankarbhai (PW.6). When he went to that Apartment, he saw a crowd there. Then his evidence is, “I asked Shankarbhai, what is happened. In reply, Shankarbhai told me that Khushbu is missing since last night. At that time I informed Shankarbhai that yesterday evening I have seen Ramesh, who was going on cycle with Khushbu. The police had inquired him.”
20. It is clear from the aforesaid evidence that Vishnu Bahadur (PW.24) met Shankarbhai (PW.6) on the next day i.e. on 18.12.1999 quite late and which is after mid day and then he informed Shankarbhai about the incident of the appellant going on a cycle with the deceased. So the information by PW.24 to PW.6 that he saw on 17.12.1999 the appellant and the deceased going together on a cycle towards Jakat Naka was not given before 1.00 to 1.30 p.m. on 18.12.1999.
21. The 9th circumstance which introduces the extra judicial confession by the appellant to Chandravadan (PW.4) shows a different sequence of events. Evidence of Chandravadan (PW.4) is that on the night of 17.12.1999, Nareshbhai and Kailashben, the parents of the deceased, came to his house for the purpose of searching the deceased. Then Chandervadan went with them to search the deceased and stayed at the place of Nareshbhai and then he went to the house of his mother-in- law, where he stayed the whole night then left for his house to have a bath which is obviously the next day i.e. 18.12.1999. When he was leaving for his house on a motorcycle, he saw the appellant sitting behind Bhulka Bhavan School in an open plot. He went to the appellant and asked him about Khusbhu and then the appellant made his confessional statement of allegedly raping and murdering Khushbu. Chandravadan (PW.4) then took the appellant “to the house of Nareshbhai” where Nareshbhai and others interrogated the appellant and before them appellant is alleged to have made the same confessional statement. Then Nareshbhai ‘called up the Police Station’ and ‘informed the police’. PW.4 also deposed, ‘Before police came, I left the house of Nareshbhai and went to my house to have a bath’ – this is the evidence of PW.4 in chief. It is clear from the aforesaid evidence of PW.4 that he took the appellant to the father of the deceased on the next day and police was immediately informed before he could go to his house to take his bath.
22. To my mind this discloses major discrepancies in the sequence of events, which formed the core of 7th, 8th and 9th circumstances and are very vital to establish the guilt of the appellant. According to my reading of the evidence there is no chance of the appellant being found missing after the reporting of the incident by PW.24 on 18.12.1999 at about 1.00 to 1.30 p.m. in as much as PW.4 brought the appellant to the apartment in the morning hours of 18.12.1999 and the police was immediately called. In between the confession was allegedly made by the appellant.
23. It appears that in his statement under Section 313 Cr.P.C., the appellant submitted that he wants to give a written statement and he actually had given a written statement to the Trial Court. The same was marked as Exhibit 133. In the said written statement dated 1.4.2005 he has inter alia stated:-
“I have not made any confession before the residents of the society or the police, because I have not committed any offence. Moreover, I have not shown dead body of Khushbu to the Police. I had not led police to the place where dead body was lying. I have not made any confession before the police or panch persons. I have not drawn the police to the place of my residence. I have not given anything from the school bag. The police had created these evidences with a view to involve me in the case falsely.”
24. This has to be treated as part of the accused’s statement under Section 313. The provision under Section 313 of the Code is for the benefit of the accused [see Basavaraj R. Patil & others Vs. State of Karnataka and others – (2000) 8 SCC 740]. Therefore, this written statement which the accused has given and the Court made it as an Exhibit must be treated as part of his statement under Section 313.
25. It appears therefore, the appellant has retracted his confession.
26. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the Court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless the Court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true. If the Court wants to reject the retraction, Court must give cogent reasons before the Court rejects it. (See the Division Bench Judgment of Calcutta High Court in King Emperor Vs. Biseswar Dey and others – 26 C.W.N. 1010). This is still good law. The same principle has been accepted after elaborate discussion by this Court in Mohd. Azad @ Samin Vs. State of West Bengal reported in JT 2008(11) SC 658 at 665 of the report. (See para 21).
27. It does not appear that the High Court has given any reason for not accepting the retraction of the confession by the accused. The High Court dealt with so-called extra judicial confessions by the appellant and held that the second extra judicial confession by the appellant before the police is hit by Section 25 of the Evidence Act. But about the retraction of his first extra judicial confession in the written statement of the appellant, which is part of his 313 statement, there is no discussion in the judgment of the High Court.
28. In paragraph 13 of the High Court judgment, the High Court merely referred to the general denials by the appellant in the course of his examination under Section 313 Cr.P.C. and held that the non- explanation of the suspicious circumstances under which the deceased had died will be treated as an additional link against the appellant. In a case where death penalty has been imposed, this Court expects the High Court to consider the evidence with greater care and circumspection.
29. This Court finds that the written statement of the appellant was accepted by the High Court while formulating various circumstances against the appellant. A part of the written statement was considered for formulating the 4th circumstance against him. So High Court cannot accept one part of the statement to the total non-consideration of the other part in which the appellant has retracted his confession and especially when it was affirming death sentence against the appellant.
30. The 12th circumstance against the appellant is that blood was found on his T-shirt. But the High Court observed that the blood group of the deceased was ‘A’ and the blood group found on T-shirt of the appellant couldn’t be determined. So, in my view, the mere fact that blood stain was found on the T-Shirt of the appellant cannot be taken as a circumstance against him.
31. But the High Court glossed over this gap in the prosecution evidence by citing Khujji alias
Surendra Tiwari Vs. State of Madhya Pradesh - AIR 1991 SC 1853. In that judgment, a three judge Bench of this Court held that even when group of blood stains found on the clothes of the accused is not determined, the same is of no consequence when there is direct evidence against the accused that he inflicted a knife blow on the deceased.
32. This ratio cannot be applied here as there is no direct evidence. This is a case of circumstantial evidence. Therefore, in the absence of any proof that the group of the blood stain found on the T-
shirt of the accused is that of the deceased, the 12th circumstance cannot be said to be one pointing towards the guilt of the accused and especially in a case where death penalty is affirmed by the High Court.
33. In the complaint, which was filed by the father of the deceased girl, there is no allegation of robbery. In the evidence led in this case and on which adverse circumstances have been formulated against the appellant, it appears that the deceased girl went with the appellant on her own. In the circumstances noted against the appellant, there is no allegation of robbery against the appellant.
34. In his statement under Section 313, the accused was not told that he has committed robbery. Only in some of the questions it was put to him that the deceased girl was wearing golden earrings and silver anklets. It was never put to him that he has committed any robbery. Even then the Hon’ble High Court after assessment of the evidence in this case and while confirming the death sentence reached its finding that the appellant has committed robbery. The question which was put to the appellant in connection with those ornaments is as follows:-
“This witness has further stated in her deposition that, her daughter was going to school by rickshaw. Some times Mr. Ramesh was going to put her on school on his cycle when rickshaw was not available. Moreover, this witness has identified cloths, golden earrings and silver anklets of deceased Ms. Khushbu. What you want to say about it?”
35. From the aforesaid question, it cannot be said that it was put to the appellant that he committed robbery but the High Court reached a finding that the appellant committed robbery and held:
“It is obvious that a most heinous type of barbaric rape, murder and robbery was committed on a helpless and defenseless girl aged 10 years.”
36. I am constrained to hold that appreciation of evidence by the High Court in this case, in affirming death penalty, has not been on a proper perspective and keeping in mind the parameters of ‘rarest of rare cases’ formulated in Bachan Singh (supra).
37. The High Court while confirming death sentence in this case, compared this case with the decision of this Court in the case of Dhananjoy Chatterjee alias Dhana Vs. State of W.B. – (1994) 2 SCC 220, and justified the death penalty in this case as similar penalty was imposed in the case of Dhananjoy (supra).
38. There are vital differences in the facts of the two cases. In the present case, there is no allegation that the appellant ever misbehaved with the deceased.
39. In Dhananjoy (supra), prior to the date of crime, there were many occasions when the victim had been teased by Dhananjoy on her way to and back from her school. The latest being on 2nd March, 1990, three days prior to her death, when Dhananjoy had asked the deceased to accompany him to watch a movie. To that the deceased protested and had told her mother about it. Then her father had consulted some neighbours and thereafter, filed a written complaint to the security agency which had hired Dhananjoy and deployed in their apartment. The agency had arranged for Dhananjoy to be transferred to another apartment. Thus there was a motive and a sense of revenge in the mind of Dhananjoy in committing the crime against the deceased.
40. Here the facts are totally different.
41. In Dhananjoy (supra), about the time or after the commission of the crime, two PWs saw him come out in the balcony of the same flat in which the victim girl stayed when they called out his name. Dhananjoy should not have gone to that flat as the father of the victim girl filed a complaint against him upon the same his transfer from the apartment was under consideration. Dhananjoy was immediately asked to come down by those who called him and in response to their call, he came out on the balcony of that flat. Thus Dhananjoy’s presence in the scene of crime at or about the time of commission of the crime is not merely based on the circumstantial evidence.
42. Third point of difference is with respect to the behaviour of Dhananjoy after the crime.
43. In Dhananjoy (supra) there are two very suspicious conduct of his. One is after he came down from the flat, Dhananjoy absconded.
44. After he came down, he spoke with the supervisor in a hurry and left the place. And thereafter, he did not report back to the office for many days nor did he come to collect his salary. He was later on found from his native village and his plea of alibi was found to be “belated and vague” by this Court.
45. In this case the appellant did not abscond. He came to the same apartment on the next day.
46. In Dhananjoy (supra), a cream coloured shirt button was found in the place of occurrence and which matched with the buttons of his shirt handed over by the accused to the police after he was apprehended. Also, a broken chain was found which was proved to have been worn by Dhananjoy as it was recognized as being given to him by one of the PWs.
47. Also, another item, i.e. a watch which was found from the Dhananjoy’s house had been taken by him from the flat and belonged to the mother of the deceased.
48. Thus, these items connected unerringly Dhananjoy with the crime and are crucial in nature.
49. There is no such evidence in this case.
50. Therefore imposition of death penalty in Dhananjoy (supra) does not justify the imposition of the same sentence here.
51. In Megh Singh Vs. State of Punjab – (2003) 8 SCC 666, this Court held that in criminal law one additional or different fact may make a world of difference between the conclusions in two cases or between two accused in the same case.
52. Criminal cases depend on facts and a single significant factual detail may alter the entire conclusion (para 18 page 671).
53. Death Penalty is a vexed subject in our legal system. In the 35th Report of the Law Commission on Capital Punishment, arguments for both its retention and abolition were considered. The matter came to be considered by the Law Commission as, Raghunath Mishra, Member of the Lok Sabha, moved a resolution in the House for its abolition. And in the course of the debate, it was agreed that the question be referred to the Law Commission.
54. The Commission gave a detailed Report running into several volumes. Ultimately the Commission recommended its retention but also recommended certain amendments of the Code of Criminal Procedure and the Indian Penal Code. Those recommendations given in Appendix XLIV of the report run as under:
“1). The Code of Criminal Procedure, 1898 - A provision requiring reasons for imposing either sentence (of death or imprisonment for life) for an offence which is punishable with death or imprisonment for life in an alternative, should be inserted in the Code. [Paragraphs 820-822 of the body of the Report] 2) Indian Penal Code - Persons below 18 years of age at the time of Commission of the offence should not be sentenced to death. [Paragraphs 878 and 887 of the body of the Report]”
55. The Commission’s recommendations for its retention were given in a guarded language and they may be quoted:-
“Having regard, however, to the conditions in India, to the variety of the social up-bringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”
(Emphasis added)
56. Despite these recommendations, the validity of death sentence came up for consideration before this Court on several occasions. In one of the earliest cases, in the case of Jagmohan Singh Vs. State of U.P – AIR 1973 SC 947, this Court upheld its validity, even though, it acknowledged that this is a difficult and controversial subject. Soon thereafter the matter came up for consideration before this Court again in Ediga Anamma Vs. State of Andhra Pradesh – AIR 1974 SC 799, in which this Court laid down that the life sentence should be the rule and death sentence is an exception. In that case Justice Krishna Iyer, speaking for this Court, gave certain guidelines in paragraph 26 and described them as positive indicators against death sentence under Indian law. Those guidelines are as follows:-
“26. Where the murderer is too young or too old the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302, read with Section 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the Court may humanly opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”
(Emphasis supplied)
57. Those formulations by Justice Krishna Iyer have been accepted in Amnesty International Report of Death Penalty (See Amnesty International Publication, page 80 to 81).
58. The aforesaid formulations must be kept in mind by Courts while exercising their discretion in imposing death penalty. His Lordship was of the view that individualization of sentencing is normally achieved by a judicial ‘hunch’ which according to His Lordship was a procedural defect. In my judgment His Lordship’s formulation of the principles in Ediga Anamma (supra) is a systematic statement, which, in the language of Justice Homes, may be called “inarticulate premises” which Court should consider before imposing the death sentence. In Ediga Anamma (supra) Justice Krishna Iyer while tracing the history of capital punishment observed that its history “hopefully reflects the march of civilization from terrorism to humanism and the geography of death penalty depicts retreat from country after country.” (See para 22 page 805).
59. The Constitution Bench in Bachan Singh (supra) considered the decision in Ediga Anamma (supra) and did not express a contrary view on those guidelines. On the other hand, it shared the same view, by quoting from Ediga in paragraph 207, page 945 of the report.
60. But the categories of mitigating circumstances are never close and in paragraph 204 (page 944 of the said report) of Bachan Singh (supra), this Court recorded the submissions of Dr. Chitaley, the learned counsel who suggested some further mitigating factors. They are:-
“Mitigating circumstances:— In 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.
(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 threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does 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.
(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.”
61. After recording the submissions of the learned counsel, the Court in Paragraph 205 at page 944 of the report accorded its approval to the same by saying that those are “undoubtedly relevant circumstances and must be given great weight in the determination of sentence”. Therefore apart from the mitigating circumstances formulated in Ediga Anamma, those suggested by Dr. Chitaley and approved by this Court, unless they overlap, form part of the ratio in Bachan Singh as mitigating circumstances accepted by this Court.
62. In paragraph 207, the learned Judges held that there are numerous other circumstances justifying the passing of the lighter sentence, as there may be circumstances of aggravation.
63. In paragraph 207, in Bachan Singh, the learned Judges explained the principles in sentencing policy under Section 354(3) of the Code of Criminal Procedure. In my view the provisions of Section 354(3) must be read conjointly with Section 235(2) of the said Code.
64. In a case where the Court imposes the death sentence both the aforesaid provisions, namely, Section 235(2) and Section 354(3) of the Code assume signal significance.
65. The Constitutional validity of Section 354(3) was upheld in Bachan Singh (supra) as the learned Judges have said that the legislative policy in sentencing is discernable from those two Sections.
66. In my judgment both those two Sections supplement each other and in a case where death penalty is imposed, both the Sections must be harmoniously and conjointly appreciated and read.
67. In Bachan Singh (supra), this Court interpreted those Sections almost in the similar view as would appear from paragraphs 164 and 165 (page 936 of the report). The Constitution Bench held :-
“164. ......Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence. 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 choice of sentence for various offences, including one under Section 302, 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.
68. In a criminal trial where the prosecution seeks to make out a case for imposition of death sentence, it has to discharge a very heavy and an onerous burden. In such cases, the prosecution must, and I repeat, must discharge this burden by demonstrating the existence of aggravating circumstances and the consequential absence of mitigating circumstances. In discharging such a burden the prosecution must not only prove beyond reasonable doubt that the accused has committed the crime but in order to make out a case for death sentence, it also has to prove beyond any reasonable doubt how the crime has been committed and specially the aggravating circumstances which warrant a death penalty. In such exercise by the prosecution, the accused must be given a real and effective chance of rebuttal and to disprove the existence of aggravating circumstance. Therefore apart from his examination under Section 313, the accused must be separately heard on the sentence to be imposed on him where he can demonstrate all the mitigating circumstances. Those must be weighed in the balance and they must receive a liberal and expansive interpretation by Court. In this context the following observations in Bachan Singh (supra) are very pertinent:-
“…Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.
(Emphasis supplied)
69. From the records, it does not appear that adequate and effective hearing was given to the accused by the trial court on the aforesaid basis before imposing the death sentence on him. It appears that the Additional Sessions Judge, 9th Fast Track Court, Gujarat returned a finding of guilt of the present appellant on 18.5.2005 and on that day itself allegedly heard the appellant on the sentence and imposed death sentence on that day. Unfortunately that is not the purpose of Section 235(2) of the Code.
70. Section 235(2) as interpreted by this Court in Bachan Singh (supra), and quoted above, provides for a ‘bifurcated trial’. It gives the accused (i) a right of pre-sentence hearing, on which he can (ii) bring on record material or evidence which may not be (iii) strictly relevant to or connected with the particular crime but (iv) may have a bearing on the choice of sentence. Therefore it has to be a regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual. In view of the mitigating circumstances endorsed in Bachan Singh (supra) the State must prove, by adducing evidence, that accused does not satisfy clause (3) and (4) of the circumstances mentioned in paragraph 204 (page 944 of the report) as those mitigating circumstances were accepted in para 205 (page 944 of the report) in Bachan Singh (supra).
71. Here prosecution has not discharged any burden at all for less the burden referred to above. This is a statutory obligation which is cast on the Court in a case where both Sections 235(2) read with Section 354(3) apply in view of the law laid down in Bachan Singh (supra). The mandate of Article 141 of the Constitution cannot be ignored either by the trial Court or the High Court.
72. Therefore, regardless of whether the accused asks for such a hearing, the same must be offered to the accused and an adequate opportunity for bringing materials on record must be given to him especially in case where Section 354(3) comes into play. It is only after undertaking that exercise that ‘special reasons’ for imposing death penalty can be recorded by the Court.
73. In the order imposing death sentence, the learned trial Judge has not even once referred to Section 354(3) of the Code. Therefore, the imposing of death sentence by the learned trial Court is wholly illegal and contrary to the provisions of the Code of Criminal Procedure and contrary to the law laid down by this Court in Bachan Singh (supra).
74. Even without referring to Bachan Singh, in Muniappan Vs. State of Tamil Nadu - (1981) 3 SCC 11, a two judge bench of this Court emphasized on the importance of hearing the accused on the question of sentence under Section 235(2) CrPC and came to the conclusion that the question of hearing the accused on sentence was not to be discharged without putting formal questions to the accused. The obligation of hearing the accused under Section 235(2) CrPC has been explained as follows:-
“The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence... question which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The court, while on the question of sentence is 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”.
75. Relying on the principles laid down in Bachan Singh in Allauddin Mian Vs. State of Bihar – (1989) 3 SCC 5, the Supreme Court deprecated the practice of the trial Court which, after recording the finding of guilt and before the accused could “absorb and overcome the shock of conviction” asked the accused to say on the question of sentence. In the instant case, the same procedure was adopted as pointed out in Para 67 herein above. The learned Judges held that by doing so the purpose of Section 235(2) is not served.
76. The learned judges held that the provision of Section 235(2) of the CrPC serves a dual purpose and those purposes are as follows:
“...The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality”.
77. After observing as such, this Court mandated a general rule which should be followed in sentencing, specially in cases of sentencing of Death Sentences and those general principles are as follows:-
“...We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future 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.”
78. In a subsequent three judge bench judgment of Malkiyat Singh and others Vs. State of Punjab - (1991) 4 SCC 341, this Court again reiterated in Para 18 at pg 356 of the report that the sentence awarded on the same day when finding of the guilt was arrived at is not in accordance with the law. Explaining the provisions under Section 235(2) CrPC, this Court held:-
“Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the court facts and material relating to various factors on the question of sentence, and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be. No doubt the accused declined to adduce oral evidence. But it does not prevent to show the grounds to impose lesser sentence on A-1. This Court in the aforestated Allauddin and Anguswamy cases held that the sentence awarded on the same day of finding guilt is not in accordance with the law”.
79. In Arshad v. State of Karnataka - (1994) 4 SCC 383, this Court through Justice Anand (as his Lordship was then) again deplored the practice of proving guilt and sentencing on the same day. In that case, both was done on 8-5-92 itself and by a cryptic order. This Court held that the objective for which Section 235(2) was brought into the Code was completely ignored by the Session Judge and the Learned Judge disapproved the sentencing procedure in a cryptic manner. It was held that it exposes the lack of sensitiveness on the part of the Court in dealing with such cases. (Para 17, pg. 389 of report).
80. The High Court, unfortunately as the first appellate Court, both on facts and in law, has confirmed the death sentence without pointing out these glaring illegalities in sentencing procedure of the trial Court and especially in a case where a death penalty has been imposed.
81. The duties cast on the High Court, while dealing with reference for confirmation of death penalty under Sections 366, 367, 368, 369 and 370 of Code were also pointed out in Bachan Singh in paragraphs 157, 158, 159 at page 934 of the report. In paragraph 159, the position has been summed up as under:-
“159. The High Court has been given very wide powers under these provisions to prevent any possible miscarriage of justice. In State of Maharashtra v. Sindhi, AIR 1975 SC 1665 this Court reiterated, with emphasis, that while dealing with a reference for confirmation of a sentence of death, the High Court must consider the proceedings in all their aspects, reappraise, reassess and reconsider the entire facts and law and, if necessary, after taking additional evidence, come to its own conclusions on the material on record in regard to the conviction of the accused (and the sentence) independently of the view expressed by the Sessions Judge”.
82. Unfortunately in this case High Court failed to correct the flawed sentencing procedure followed by the trial Court and erred in law by confirming the death sentence which led to an obvious miscarriage of justice.
83. The challenge to the constitutionality of death sentence was repelled in Bachan Singh (supra) only in view of the legislative safeguards given in the sentencing policy in the aforesaid provisions of Sections 235(2) and 354(3) of the Code. The Court has held that such procedure “cannot, by any reckoning, be said to be unfair, unreasonable and unjust” (para 167, page 937).
84. Thus, it appears that this Court upheld the constitutionality of death penalty on the aforesaid doctrine of ‘due process’ which has been introduced in our constitutional jurisprudence in the case of Smt. Maneka Gandhi Vs. Union of India and another – AIR 1978 SC 597.
85. By repeatedly referring to the dicta in Maneka Gandhi (supra), the majority judgment in Bachan Singh (supra) upheld the vires of the provisions of Indian Penal Code on death penalty in view of the reasonable, fair and just procedures which are provided in the sentencing policy by those Sections in the Criminal Procedure Code (paras 135 and 136, page 930 of the report).
86. Similarly in Furman V. Georgia - 408 U.S. 238 (1972),U.S. Supreme Court impliedly overruled its earlier decision in McGautha V. California – 402 U.S. 183, 196 (1971). In this context it may be mentioned that in nine separate opinions the learned Judges struck down in Furman Vs. Georgia by a majority of 5-4, the death penalty statutes at issue as cruel and unusual in view of the denial of the ‘due process’ guaranteed by the Fourteenth Amendment.
87. Learned Judges in Furman observed that the sentencing policy was not properly structured and, therefore, it causes denial of Fundamental Rights.
88. The Supreme Court in Bachan Singh (supra) also insisted on the importance of structured sentencing policy in death sentence cases to uphold its validity and held that structured sentencing policy has been achieved in view of the aforesaid two provisions, namely, Section 354(3) and Section 235(2) of the Code.
89. Therefore fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty epitomized in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of “procedure established by law” within the meaning of Article 21 of the Constitution.
90. Thus, a strict compliance with those provisions in the way it was interpreted in Bachan Singh (supra) having regard to the development of constitutional law by this Court, is a must before death sentence can be imposed.
91. While I fully share my learned Brother’s anxiety about the expectation of society to the adequacy of the sentence to the nature of the crime, at the same time, we cannot be oblivious of the person who is alleged to have committed the crime and his rights under a fair and structured sentencing policy. This Court laid down in Bachan Singh (supra) that before imposing death sentence, an abiding concern for the dignity of human life must be shown by Court.
92. We must recognize that ‘cry for justice’ is not answered by frequent awarding of death sentence on a purported faith on ‘deterrence creed’. Before choosing the option for death sentence, the Court must consciously eschew its tendency of ‘retributive ruthlessness’.
93. In Bachan Singh (supra), the majority opinion warned in paragraph 125, page 927:-
“that Judges should not take upon themselves the responsibility of becoming oracles or spokemen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned.
94. Therefore, this Court cannot afford to prioritise the sentiments of outrage about the nature of the crimes committed over the requirement to carefully consider whether the person committing the crime is a threat to the society. The Court must consider whether there is a possibility of reform or rehabilitation of the man committing the crime and which must be at the heart of the sentencing process. It is only this approach that can keep imposition of death sentence within the ‘rarest of the rare cases’.
95. The expression ‘rarest of rare cases’ is not to be read as a mere play on words or a tautologous expression.
96. In upholding the constitutional validity of capital punishment, the Constitution Bench of this Court used that expression in Bachan Singh in order to read down and confine the imposition of capital punishment to extremely limited cases. This is a very loaded expression and is not to trifled with.
It is pregnant with respect for the inviolability of human life. That is why the word ‘rare’ has been used twice and once in a superlative sense. Therefore, the significance of this expression cannot be watered down on a perceived notion of a ‘cry for justice’.
97. I now propose rely on a few decisions to show how this expression ‘rarest of rare case’ has been interpreted by this Court even where the accused was found guilty of both murder and rape and death sentence was awarded by the trial Court and the High Court confirmed it.
98. In the case of Chaman Vs. Stae of NCT- (2001) 2 SCC 28, the Court after finding the commission of crime held that a girl of 1 and ½ years was raped and killed but did not approve of the death sentence imposed on him by the Courts below and imposed on him a life sentence as this Court found that the appellant is not a dangerous person to endanger the society and the case is not coming within the parameters of the ‘rarest of rare case’.
99. In the case of Bantu @ Naresh Giri Vs. State of Uttar Pradesh- AIR 2002 S.C. 70, the accused was sentenced to death for the rape and murder of a 6 year old child. In Para 8 of the said judgment, the Learned judges after considering the age of the accused and also the fact that he did not have any past criminal record held that the accused will not be a grave danger to society and further held that the case does not fall under the rarest of rare cases and death sentence was commuted to life sentence.
100. In Surendra Pal Singh Vs. State of Gujarat- (2005) 3 SCC 127, a minor girl was raped and killed and the Sessions Court imposed death penalty and the High Court of Gujarat also affirmed the same. But this Court found that the case does not fall under the rarest of rare cases and considering that the appellant was 36 years old and has no previous criminal record, held that he was not a menace to society. This Court held that it was not a rarest of rare cases and confirmed the conviction but commuted the sentence from death sentence to life imprisonment.
101. In Amrit Singh Vs. State of Punjab- AIR 2002 SC 132, the accused was found guilty of rape of a minor girl and also of her death. Death occurred not as a result of strangulation but due to excessive bleeding from her private parts. In that case, the Trial Court sentenced the accused to death sentence which was confirmed by the High Court of Punjab and Haryana in a reference proceeding before it.
102. In para 21 of page 136 of the judgment, this Court held that the imposition of death sentence in such cases was improper and it cannot be put in the category of rarest of rare cases and the Court imposed a sentence of rigorous imprisonment for life on that ground.
103. In the case of Kulwinder Singh Vs. State of Punjab- AIR 2007 SC 2868, Hardip Kaur was found to have been raped by the accused and on her protest, she was found to have been strangulated as a result of which she died. Another person, Joginder Kaur also died in the same incident as a result of injuries received from gandashi blows inflicted on the neck by the accused. In that case, the death sentence was commuted to imprisonment for life as the Court found that it cannot be brought in the category of rarest of rare cases.
104. Keeping these principles in mind, I find that in the instant case the appellant is a young man and his age was 28 years old as per the version in the charge-sheet. He is married and has two daughters. He has no criminal antecedents, at least none has been brought on record. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to the society. His entire life is ahead of him.
105. Before I conclude, if I may quote a few lines from Sir Winston Churchill about Crime and Punishment and which have been quoted by C.H. Rolph in “Commonsense about Crime and Punishment, page 175”. Those matchless words of Sir Winston Churchill are as under:-
“The mood and temper of the public with regard to the treatment of crime and criminals is one of the unfailing tests of the civilization of any country. A calm, dispassionate, recognition of the rights of the accused – and even of the convicted – criminal against the State; a constant heart-searching by all charged with the duty of punishment; a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man; these are the symbols which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it”.
106. For the reasons discussed above and in view of mitigating circumstances and the law laid down in Bachan Singh (supra) and the various gaps in the prosecution evidence, pointed hereinabove, death sentence cannot be awarded to the appellant as in my view it does not come under the ‘rarest of rare cases’. Apart from that in the case of the appellant proper sentencing procedure was not followed by the trial Court and the Hon’ble High Court erred by approving the same. But I do not agree with his conviction on charges of robbery which, in my opinion, was not proved and on the alleged conviction on robbery no sentence was awarded to the appellant.
107. I agree with His Lordship that the appellant has to be convicted on other charges. However, his conviction does not automatically lead to his death sentence.
108. In my humble opinion instead of death sentence a sentence of rigorous imprisonment for life will serve the ends of justice.
109. With the aforesaid modification on the sentence the appeal is dismissed to the extent indicated above.
. J.
New Delhi (ASOK KUMAR GANGULY) April 27, 2009