AI Drafter 
TaxTMI 
TaxTMI 
2011 (9) TMI 1157
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....s on 28.7.2003 informing him that a man had entered a house in Subhash Nagar and had assaulted two children and had locked the door of a room from inside. Another call was made to the Police Control Room from mobile No. 9810458303 noting that the informant had informed that a man had murdered two children inside House No. 2/129 Subhash Nagar near Arya Samaj Temple. 5. Each time the duty officer at the police control room, on receipt of afore-noted information, relayed the information to the concerned police station i.e. P.S. Rajouri Garden, where the duty constable recorded the said information by way of entries in the daily diary register, being DD No. 11, Ex.PW-16/A at 3:35 PM and DD No. 12, Ex.PW-16/B at 3:50 PM. 6. ASI Jagpal PW-22 was handed over a copy of both the DD entries and was deputed to investigate. He took along with him HC Naresh PW-19 and Const. Sukhbir PW-24. The three police officers reached House No. 2/129 Subhash Nagar. A crowd had gathered outside the house. Mr. Bahadur Singh PW-4 a resident of House No. 2/130 Subhash Nagar i.e. the immediate neighbour and one Mr. Negi (not examined as a witness) were present in the gathering and told the police officers ....
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.... Master Harshit could not survive and died the same night in the Hospital. 13. The Appellant was charged under Section 302 Indian Penal Code for committing the murder of two children namely, Anshul and Harshit. 14. At the trial, Sangeeta PW-1, the mother of the two children, deposed that she was a housewife and was living on the second floor of house No. 2/129, Subhash Nagar at the time of the occurrence. Her elder son was named Anshul and the younger one was named Harshit. Their age was 41/2 years and 8 months respectively. The incident took place at around 3:00 PM on 28.7.2003 when she was present in her house and her sons were sleeping in the bed room. Appellant came and asked for water. She gave him water. Appellant wanted a meal. She went to the kitchen and heard cries of Harshit. She returned and picked up Harshit. Appellant told her to give the child to him and cook meals for him. She gave her child to the Appellant and went to the kitchen. Her son cried continuously even in the arms of the Appellant and suddenly the crying stopped. She went to the bed room and saw that her son was being held from his legs by the Appellant who was hitting the child on the floor. Her ot....
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....d reasonable doubt. Consequently, the Trial Court vide order-dated 12.03.2007 convicted the Appellant under Section 302 Indian Penal Code and vide order dated 24.03.2007 awarded death sentence to the Appellant subject to the confirmation of the High Court. 20. Consequently, a petition for confirmation of Death Sentence bearing Death Sentence Ref. No. 2/2007 was filed before the High Court. 21. Being aggrieved the Appellant also preferred a Criminal Appeal No. 635/2007 before the High Court. 22. By judgment dated 06th August 2009, the High Court after re-appreciation of the entire evidence on record observed that it is beyond reasonable doubt that the Appellant committed the murder of two children and upheld the conviction of the Appellant under Section 302 Indian Penal Code. The High Court further observed that the case falls in the category of rarest of rare case, dismissed the Criminal Appeal filed by the Appellant and confirmed the death sentence imposed upon him. 23. The learned Counsel for the Appellant submitted that the facts of this case do not put the case in the category of the rarest of the rare cases, attracting the penalty of death. Listing the mitigating c....
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....n and the answer are set out below: Q.138 Anything else you want to say? A. I am unwell since childhood. I am on medicine since then. The problem with me is that I fell anywhere while walking. I also start shouting. I become unaware about myself. My treatment was under going in jail and of late now I have left my treatment, as doctor is not going to change my medicine. The problem, which I was facing in the past has re-surfaced. Even in the past while I use to drive my eyes use to get closed of its own. Mukesh and his relations know about my medical problems. I do not know how Anshul and Harshit have expired. I am innocent. I have been falsely implicated. My medical documents have been torn apart by my wife and for that reason out of having a sense of guilt she has not come to see me even in jail. I cannot produce these medical papers. 30. In the impugned judgment, the High Court also noted certain mitigating factors which are as follows: "48.... The first is that the Appellant is a first time offender. The second is that he has two sons, a wife and a widowed mother to support. The third is the fact that financial hardship created stress in the mind....
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.... structure and the concept of mitigating circumstances in India relating to death penalty. The Code of Criminal Procedure, 1898 (hereinafter "1898 Code"), had Section 376(5) which required that if an accused is convicted of an offence punishable with death and the court sentences him with any punishment other than death, the court shall, in its judgment, give reasons why death sentence was not passed. The provision of Section 367(5) of 1898 Code reads as follows: "(5) If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed." 35. This was during the colonial days when the worth and dignity of human life was not the central point in our jurisprudence. 36. Even after the coming of Constitution of India, the aforesaid provision of Section 367(5) of the 1898 Code continued for some time. 37. In 1955, the Code of Criminal Procedure (Amendment) Act, 1955 deleted the aforesaid Section 367(5) of the 1898 Code. As a result of this amendment, which came into effect from 1st January 1956, it was no longer necessary for ....
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....h particular reference to any extenuating circumstances...." 40. It is, therefore, clear that this Court was making a distinction between its formation of opinion on the conviction of the accused for the crime committed and its formation of opinion on the punishment to be imposed for the crime on consideration of extenuating or mitigating circumstances. 41. The next decision of this Court rendered on the constitutionality of death sentence was in the case of Jagmohan Singh v. The State of U.P. (1973) 1 SCC 20. The Constitution Bench of this Court in Jagmohan Singh (supra) examined whether total discretion can be conferred on the judges in awarding death sentence, when the statute does not provide any guidelines on how to exercise the same. 42. The decision in Jagmohan Singh (supra) was rendered when the present Code of Criminal Procedure, 1973 was not in existence. 43. The Constitution Bench in Jagmohan Singh (supra) held that the policy of the law giving a wide discretion to the judges in the matter of imposition of death sentence had its origin in the impossibility of laying down any standards for exercise of such discretion. However, the Court found that such discret....
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....s between the two Codes in sentencing structure. 47. Chapter XXIII of 1898 Code under the heading of "Trial before the High Court and Sessions Courts" lays down the procedure for trials conducted before a High Court or Court of sessions. Section 268 of 1878 Code provides for trials before a Court of sessions either by a Jury or by the Judge himself. Section 309 of 1898 Code provides for the manner in which judgment is to be given in cases tried by the Judge himself. 48. Section 309 of 1898 Code reads as follows: "309. Judgment in cases tried by the Judge himself.- (1) When, in a case tried by the Judge himself, the case for the defence and the prosecutor's reply (if any) are concluded, the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 562, pass sentence on him according to law." 49. The 41st Law Commission Report (Volume I) dated 24th September, 1969 proposed extensive changes in 1898 Code. In paragraph 23.2 of the said report, the Law Commission recommended a set of new provisions for governing "Trials before a Court of sessions". Wit....
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....Except as otherwise expressly provided by this Code, every judgment referred to in Section 353,- (a) shall be written in the language of the Court; 30 (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reas....
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....tances - both extenuating or aggravating, the prior criminal record, if any, of the offender, the age of the offender, his background, his education, his personal life, his social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of his rehabilitation in the life of community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others. After referring to all the aforesaid facts, the learned Judge opined as under: "3.... These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused. Hence the new provision in Section 235(2)." (para 3, page 195 of the report)" 57. After analyzing the aforesaid aspects, the learned Judge posed the question: What is the meaning and content of expression "hear the accused"? By refe....
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....the questions the Judge puts and the answers accused gives may be beyond narrow constraints of the Evidence Act. In the words of the learned Chief Justice the position of Court in an exercise under Section 235(2) is as follows: "2...The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.... (para 2, page 13 of the report)" 61. To the same effect is the judgment of Ahmadi, J. (as His Lordship then was) in Allauddin Mian and Ors. v. State of Bihar (1989) 3 SCC 5. Explaining the purpose of Section 235(2), this Court in Allauddin Mian (supra) held that Section 235(2) satisfies a dual purpose; first of all it satisfies rules of natural justice by according an opportunity to the accused of being heard on the question of sentence. Under such sentencing procedure the accused is given an opportunity to place before the court all relevant materials having a bearing on the question of sentence. The Court opined that it is a salutary principle and must be strictly observed and is not a matter of mere formality. This Co....
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.... provided for the offence of murder in Section 302, Penal Code is unconstitutional (ii) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life." 68. In upholding the constitutionality of Section 302 of Indian Penal Code and also the provisions of Section 354(3) of 1973 Code the Constitution Bench in Bachan Singh (supra) considered the evolution of our Constitutional Jurisprudence from various decisions of Constitution Bench of this Court in A.K. Gopalan v. State of Madras AIR 1950 SC 27 and then the decisions of this Court in Sakal Papers (P) Ltd. and Ors. v. Union of India AIR 1962 SC 305, Naresh Shridhar Mirajkar v. State of Maharashtra and Anr. AIR 1967 SC 1, Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248, Mane....
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....rit patently on Article 21. It is too grave to be circumvented by a black letter ritual processed through the legislature." (Para 81 page 337 of the report)" 75. Immediately after the decision in Maneka Gandhi (supra) another Constitution Bench of this Court rendered decision in case of Sunil Batra v. Delhi Administration and Ors. (1978) 4 SCC 494 specifically acknowledged that even though a clause like the 8th Amendment of the United States Constitution and concept of 'due process' of American Constitution is not enacted in our Constitution text, but after the decision of this Court in R.C. Cooper (supra) and Maneka Gandhi (supra) the consequences is the same. The Constitution Bench of this Court in Sunil Batra (supra) speaking through Krishna Iyer, J held: "52. True, our Constitution has no 'due process' clause or the VIII Amendment; but, in this branch of law, after Cooper (supra) and Maneka Gandhi (supra), the consequence is the same." 76. The Eighth Amendment (1791) to the Constitution of United States virtually emanated from the English Bill of Rights (1689). The text of the Eighth Amendment reads, "Excessive bail shall not be required, nor exce....
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....rticulated through the procedural safeguards of Section 235(2) read with Section 354(3) of 1973 Code. This marks the maturing of our criminal jurisprudence from the stage of rule of law to the realm of due process of law by experiencing the vicissitudes of a fascinating journey for about three decades of judicial decision making by this Court from A.K. Gopalan (supra) to Maneka Gandhi (supra). 81. In fact the Constitution Bench in Bachan Singh (supra) has construed the sentencing structure in Section 235(2) and 354(3) of 1973 Code through the prism of due process concept and only then it upheld the constitutionality of death sentence. 82. However, in the impugned judgment, the High Court failed to appreciate this ratio in Bachan Singh (supra). In the instant case to confirm the death sentence of the Appellant, the High Court relied on the judgment of this Court in Dayanidhi Bisoi v. State of Orissa (2003) 9 SCC 310, wherein the accused was held guilty of murder of three persons of a family comprising husband, wife and their three year old daughter. In that case, the accused, who is a member of the family of the deceased, committed the criminal act for monetary benefits while ....
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....Bachan Singh specifically noted the following on this point: 163...The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration 'principally' or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. Shivaji v. State of Maharashtra - (2008) 15 SCC 269, Mohan Anna Chavan v. State of Maharashtra (2008) 7 SCC 561, Bantu v. 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 and State of U.P. v. Sattan (2009) 4 SCC 736 are the decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as authority on the point that in heinous crimes, circumstances relating to cri....
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....haustive list of such circumstances. For instance, a crime involving a terrorist attack may place the case under a completely different situation. 89. In the instant case State has failed to show that the Appellant is a continuing threat to society or that he is beyond reform and rehabilitation. On the other hand, in paragraph 77 of the impugned judgment the High Court observed as follows: "We have no evidence that the Appellant is incapable of being rehabilitated in society. We also have no evidence that he is capable of being rehabilitated in society. This circumstance remains a neutral circumstance." 90. It is clear from the aforesaid finding of the High Court that there is no evidence to show that the accused is incapable of being reformed or rehabilitated in society and the High Court has considered the same as a neutral circumstance. In our view the High Court was clearly in error. The very fact that the accused can be rehabilitated in society and is capable of being reformed, since the State has not given any evidence to the contrary, is certainly a mitigating circumstance and which the High Court has failed to take into consideration. The High Court has also ....
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....ed and a balance has to be struck..." (Para 20, page 695 of the report)" 92. Again in Panchhi and Ors. v. State of U.P. (1998) 7 SCC 177 four members of a family comprising two adult male and female, murdered four members of neighbouring family comprising an adult male and female, an old lady and a child of five years of age in most heinous, brutal and diabolical manner to fulfill their vengeance. This Court while commuting their death sentence to life imprisonment observed: "20.... No doubt brutally looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show any lighter side, but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh's case. In a way every murder is brutal, and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder." (para 20, page 183 of the report)" (Em....
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....s in favour of the Appellant, were not properly considered. 99. The ratio in Bachan Singh (supra) has received approval by the international legal community and has been very favourably referred to by David Pannick in 'Judicial Review of the Death Penalty: Duckworth' (see page 104-105). 100. Roger Hood and Carolyn Hoyle in their treaties on 'The Death Penalty' Fourth Edition (Oxford) have also very much appreciated the Bachan Singh ratio (See page 285). 101. The concept of 'rarest of rare' which has been evolved in Bachan Singh (supra) by this Court is also the internationally accepted standard in cases of death penalty. 102. Reference in this connection may also be made to the right based approach in exercising discretion in death penalty as suggested by Edward Fitzgerald, the British Barrister. (Edward Fitzgerald: The Mitigating Exercise in Capital Cases in Death Penalty Conference (3-5, June, Barbados: Conference Papers and Recommendations) 103. It has been suggested therein that right approach towards exercising discretion in capital cases is to start from a strong presumption against the death penalty. It is argued that 'the presence ....