2011 (9) TMI 1157 - SC - Indian Laws

Crime committed for killing two children - Judgment of conviction u/s 302 IPC - penalty of death sentence, delivered - High Court noted is the brutal, diabolical and dastardly nature of assault by the Appellant on the two innocent children - trauma produced on the mother of children - breach of trust - revenge of the Appellant towards the children, as the father of the children did not extend financial help to him - issued notice on the limited question of quantum of sentence - evolution of sentencing structure and the concept of mitigating circumstances in India relating to death penalty - effective opportunity of hearing contemplated under Section 235(2) of Code of Criminal Procedure provided or not? HELD THAT - This Court held in Jagmohan Singh 1972 (10) TMI 137 - SUPREME COURT that the test of reasonableness cannot be applied by this Court in the same manner as is done by the United States Supreme Court in view of the existence of 'due process clause' in the United States Constitution. The learned Judges quoting from the commentary by Ratanlal's, Law of Crimes, (Twenty-second edition), referred to certain mitigating and aggravating circumstances, but opined that the said list is not exhaustive. However, the aforesaid position substantially changed with the introduction of a changed sentencing structure under the present Code of Criminal Procedure, 1973. If we compare the 1898 Code with 1973 Code, we would discern lot of changes between the two Codes in sentencing structure. The most significant change brought about by the incorporation of the recommendation of the 41st Law Commission (supra), is the giving of an opportunity of hearing to the accused on the question of sentence. This is the incorporation of the great humanizing principle of natural justice and fairness in procedure in the realm of penology. The trial of an accused culminating in an order of conviction essentially relates to the offence and the accused under 1898 Code did not get any statutory opportunity to establish and prove in such trial the mitigating and other extenuating circumstances relating to himself, his family and other relevant factors which are germane to a fair sentencing policy. This opportunity of hearing at the post conviction stage, gives the accused an opportunity to raise fundamental issues for adjudication and effective determination by Court of its sentencing discretion in a fair and reasonable manner. The importance of Section 235(2) of 1973 Code has been explained by this Court in several decisions and its importance can hardly be overemphasized in a case where prosecution demands the imposition of death penalty and the court awards the same. Therefore, it is clear from the 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 failed to take into consideration that the Appellant is not a continuing threat to society in the absence of any evidence to the contrary. The High Court has only considered that the Appellant is a first time offender and he has a family to look after. We are, therefore, constrained to observe that the High Court's view of mitigating circumstance has been very truncated and narrow in so far as the Appellant is concerned. This Court observed that this was a dastardly murder of two helpless persons for no fault on their part. But this Court commuted the death sentence to life imprisonment taking into consideration following factors, firstly that there was no pre-meditation in the act of the accused. This was at the spur of the moment as accused did not come armed with any weapon. Secondly it is unknown under what circumstances accused entered the house of deceased and what prompted him to assault the boy. Thirdly the cruel manner in which the murder was committed cannot be the guiding factor in favour of death sentence. Fourthly the accused himself has two minor children. In Smt. Triveniben v. State of Gujarat 1989 (2) TMI 404 - SUPREME COURT , the Constitution Bench of this Court, following the Bachan Singh ratio, held death sentence cannot be given if there is any mitigating circumstance in favour of the accused. All circumstances of the case should be aggravating The concept of 'rarest of rare' which has been evolved in Bachan Singh by this Court is also the internationally accepted standard in cases of death penalty. The ratio in Bachan Singh 1980 (5) TMI 112 - SUPREME COURT 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' We hold that death sentence cannot be inflicted on the Appellant since the dictum of Constitution Bench in Bachan Singh 1980 (5) TMI 112 - SUPREME COURT is that the legislative policy in Section 354(3) of 1973 Code is that for person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration. Bachan Singh (supra) further mandates that in considering the question of sentence the Court must show a real and abiding concern for the dignity of human life which must postulates resistance to taking life through law's instrumentality. Except in 'rarest of rare cases' and for 'special reasons' death sentence cannot be imposed as an alternative option to the imposition of life sentence. We are of the view that in the facts of this case the death sentence imposed by the High Court cannot be sustained and the death sentence imposed upon the Appellant is substituted by the sentence of imprisonment for life.

Summary

Issues Involved:
1. Quantum of Sentence
2. Mitigating Circumstances
3. Aggravating Circumstances
4. Plea of Insanity
5. Sentencing Structure and Judicial Principles

Detailed Analysis:

1. Quantum of Sentence:
The Supreme Court was tasked with reviewing the quantum of the death sentence imposed on the appellant by the High Court of Delhi. The High Court had upheld the conviction under Section 302 of the Indian Penal Code and confirmed the death sentence.

2. Mitigating Circumstances:
The appellant's counsel argued several mitigating circumstances:
- The appellant was a first-time offender.
- He had a family to support, including two sons, a wife, and a widowed mother.
- The appellant was young, aged 37 at the time of the crime.
- There was a potential for rehabilitation and reintegration into society.
- The appellant did not pose a continuing threat to society.

The High Court had noted some of these mitigating factors but did not give them sufficient weight. The Supreme Court emphasized that the High Court failed to consider the appellant's potential for rehabilitation and the lack of evidence showing he was a continuing threat to society.

3. Aggravating Circumstances:
The High Court had listed several aggravating circumstances:
- The brutal, diabolical, and dastardly nature of the assault.
- The trauma inflicted on the mother of the children.
- The innocence of the child victims.
- Breach of trust by the appellant.
- Close relationship between the appellant and the victims.
- Motive of revenge due to financial disputes.
- Lack of remorse by the appellant.
- Pre-meditation and the cruel weapon used (a piece of glass).

The Supreme Court noted that while the crime was brutal, the High Court overly emphasized this aspect and did not properly balance it with the mitigating factors.

4. Plea of Insanity:
Both the Trial Court and the High Court rejected the plea of insanity. The appellant did not strongly pursue this plea before the Supreme Court. The courts relied on medical reports indicating the appellant was of sound mind and did not exhibit signs of insanity.

5. Sentencing Structure and Judicial Principles:
The Supreme Court discussed the evolution of sentencing structures and the importance of considering both mitigating and aggravating circumstances. It referred to landmark cases like Bachan Singh v. State of Punjab and others, which established that life imprisonment is the rule and the death sentence is an exception, only to be applied in the "rarest of rare" cases.

The Court criticized the High Court for not following the principles laid down in Bachan Singh and for relying on precedents that were decided per incuriam (without considering binding precedents). The Supreme Court emphasized that mitigating circumstances must be given great weight and that the death sentence should only be imposed when there is no possibility of reform and rehabilitation.

Conclusion:
The Supreme Court concluded that the High Court erred in its judgment by not properly considering the mitigating factors and by being overly influenced by the brutality of the crime. The death sentence was deemed inappropriate, and the Supreme Court substituted it with life imprisonment. The conviction under Section 302 of the Indian Penal Code was upheld, but the appellant was to serve a life sentence instead of facing the death penalty. The appeals were allowed to the extent that the death sentence was commuted to life imprisonment.