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TMI Blog2012 (11) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959. They were convicted by the Additional Sessions Judge, Rohtak by his judgment and order dated 13th November, 2009 in Sessions Case No. 47 of 2004/2009 of the offence of murder (Section 302 of the Indian Penal Code), attempt to murder (Section 307 of the Indian Penal Code), rioting, armed with a deadly weapon (Section 148 of the Indian Penal Code), house trespass in order to commit an offence punishable with death (Section 449 of the Indian Penal Code) read with Section 149 of the Indian Penal Code (every member of an unlawful assembly is guilty of an offence committed in prosecution of a common object). Five of the accused were convicted of an offence Under Section 25(1-B) of the Arms Act, 1959. Except the Appellants, all of them were given a sentence of rigorous imprisonment for life and payment of fine. The Appellants, as mentioned above, were sentenced to death. 3. The Trial Judge found the accused guilty of having committed the murder of Ranbir, Bimla (his wife), Seema (wife of Amardeep) and Rahul the three-year-old child of Amardeep and Seema and grandson of Ranbir. 4. The Trial Judge found that accused Ram Phal believed that Amardeep's family had performed some bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rime was committed in a pre-meditated, cold-blooded, cruel and diabolic manner while the victims were sleeping. The convicts were armed with deadly weapons like firearms and kukris etc. which they used unhesitatingly and indiscriminately to commit murders and cause a life threatening injury to Amardeep. It was held that Seema's body was burnt by Sandeep from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape. Narender was found to be a professional killer. It was held that the act of the Appellants fell in the category of rarest of rare cases and as such a death penalty was warranted. 10. We heard the learned Legal Aid Counsel on behalf of the Appellants and record our appreciation for the keen interest taken by him in the case and the efforts put in. We also heard learned Counsel for the State and have gone through the record as well as the statement given by the Appellants Under Section 235(2) of the Code of Criminal Procedure. We have given our anxious consideration to the question of sentence to be awarded to the Appellants. Leading judgments on the death penalty: 11. Any discussion on the subject of death penalty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following questions were framed for consideration: (i) Whether death penalty provided for the offence of murder in Section 302 of the 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. 17. Insofar as the first question is concerned, the Constitution Bench answered it in the negative. As regards the second question, the Constitution Bench referred to and considered Jagmohan Singh and culled out several propositions from that decision. The Constitution Bench did not disagree with any of the propositions, except to the extent of tweaking proposition (iv)(a) and proposition (v)(b) in view of the changed legislative policy. For the present, we are concerned only with these two propositions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be corrected by superior courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an unguided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life. (v)(a) Relevant facts and circumstances impinging on the nature and circumstances of the crime can be brought before the court at the pre-conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facts and circumstances had been specifically provided. Where counsel addresses the court with regard to the character and standing of the accused, they are duly considered by the court unless there is something in the evidence itself which belies him or the Public Prosecutor c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench observed that under the old Code, both the sentence of death and the sentence of imprisonment for life provided under Section 302 of the Indian Penal Code could be imposed after weighing the aggravating and mitigating circumstances of the particular case. However, in view of Section 354(3) of the Code of Criminal Procedure a punishment of imprisonment for life should normally be imposed under Section 302 of the Indian Penal Code but a sentence of death could be imposed as an exception. Additionally, as per the legislative requirement if a sentence of death is to be awarded, special reasons need to be recorded. In a sense, the legislative policy now virtually obviated the necessity of balancing the aggravating and mitigating circumstances of the crime for the award of punishment in respect of an offence of murder (although "aggravating and mitigating circumstances" are repeatedly referred to in the judgment, including as "relevant circumstances" that must be given "great weight"). Therefore, the Constitution Bench (after a discussion in paragraphs 161 and 162 of the Report) "adjusted and attuned" proposition (iv) (a) by deleting the refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing. But, how effective has been the implementation of Bachan Singh? Issue of aggravating and mitigating circumstances: 27. In making the shift from the crime to the crime and the criminal, the Constitution Bench in Bachan Singh looked at the suggestions given by learned Counsel appearing in the case. These suggestions, if examined, indicate that in so far as aggravating circumstances are concerned, they refer to the crime. They are (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Nevertheless, the balance sheet theory held the field post Machhi Singh. 30. The application of the sentencing policy through aggravating and mitigating circumstances came up for consideration in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767. On a review, it was concluded in paragraph 48 of the Report that there is a lack of evenness in the sentencing process. The rarest of rare principle has not been followed uniformly or consistently. Reference in this context was made to Aloke Nath Dutta v. State of West Bengal (2007) 12 SCC 230 which in turn referred to several earlier decisions to bring home the point. 31. The critique in Swamy Shraddananda was mentioned (with approval) in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 while sharing this Court's "unease and sense of disquiet" in paragraphs 109, 129 and 130 of the Report. In fact, in paragraph 109 of the Report, it was observed that ...the balance sheet of aggravating and mitigating circumstances approach invoked on a case-by-case basis has not worked sufficiently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 4 SCC 713, the principle of 'just desserts' was applied and the death penalty awarded to the convicts was upheld. The circumstances of the convicts were not considered for reducing the death penalty. 37. Rajendra Pralhadrao Wasnik v. State of Maharashtra (2012) 4 SCC 37 was a case of rape and murder of a three-year-old child in a vicious and brutal manner. This Court confirmed the sentence of death after taking into consideration the brutal nature of the crime but not the circumstances of the criminal. 38. Mohd. Mannan v. State of Bihar (2011) 5 SCC 317 was a case of a brutal rape and murder of a seven-year-old girl. While confirming the sentence of death, this Court referred to the nature of the crime and the extreme indignation of the community. On that basis, it leaned towards awarding the death sentence and observed in paragraph 24 of the Report as follows: When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. 39. A little later in paragraph 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where, despite the nature of the crime, some criminals have got the benefit of "mitigating circumstances" and their death penalty has been reduced to imprisonment for life or for a term without remission. 45. Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28 was a case where the convict had raped a one-and-a-half year old child who died as a result of the unfortunate incident. This Court found that the crime committed was serious and heinous and the criminal had a dirty and perverted mind and had no control over his carnal desires. Nevertheless, this Court found it difficult to hold that the criminal was such a dangerous person that to spare his life would endanger the community. This Court reduced the sentence to imprisonment for life since the case was one in which a "humanist approach" should be taken in the matter of awarding punishment. 46. Dilip Premnarayan Tiwari was a case in which three convicts had killed two persons and grievously injured two others, leaving them for dead. A third victim later succumbed to his injuries. While noticing that the crime was in the nature of, what is nowadays referred to as 'honour killing', this Court reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risonment for life subject to remissions. It was held that there was nothing to suggest that he would repeat the offence. This Court proceeded on the premise that the convict might reform over a period of years since there was no evidence of any earlier offence committed by him. 51. Reference has been made to these decisions cited by learned Counsel, certainly not with a view to be critical of the opinion expressed, but with a view to demonstrate the judge-centric approach to sentencing adverted to in Swamy Shraddananda and endorsed in Bariyar and the existence of the uncertainty principle in awarding life imprisonment or the death penalty. Standardization and categorization of crimes: 52. Despite Bachan Singh, the "particular crime" continues to play a more important role than the "crime and criminal" as is apparent from some of the cases mentioned above. Standardization and categorization of crimes was attempted in Machhi Singh for the practical application of the rarest of rare cases principle. This was discussed in Swamy Shraddananda. It was pointed out in paragraph 33 of the Report that the Constitution Bench in Jagmohan Singh and Bachan Singh "had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal. It was noted that this Court "must lay down a good and sound legal basis for putting the punishment of imprisonment for life, awarded as substitute for death penalty, beyond any remission and to be carried out as directed by the Court so that it may be followed in appropriate cases as a uniform policy not only by this Court but also by the High Court, being the superior courts in their respective States." The subject of discussion in this phase, therefore, is remission Under Section 432 of the Code of Criminal Procedure of a sentence awarded for a capital offence. 57. It is necessary, in this context, to be clear that the constitutional power under Article 72 and Article 161 of the Constitution is, as yet, not the subject matter of discussion, particularly in this case. Nor is the power of commutation Under Section 433 of the Code of Criminal Procedure under discussion. What is under limited discussion in this case is the remission power available to the appropriate Government Under Section 432 of the Code of Criminal Procedure. 58. A reading of some recent decisions delivered by this Court seems to suggest that the remission power of the appropriate Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate Government for good and valid reasons in exercise of its powers Under Section 432 of the Code of Criminal Procedure Broadly, this Section statutorily empowers the appropriate Government to suspend the execution of a sentence or to remit the whole or any part of the punishment of a convict [Sub-section (1)]. But, the statute provides some inherent procedural and substantive checks on the arbitrary exercise of this power. Procedural check on arbitrary remissions: 62. There does not seem to be any decision of this Court detailing the procedure to be followed for the exercise of power Under Section 432 of the Code of Criminal Procedure But it does appear to us that Sub-section (2) to Sub-section (5) of Section 432 of the Code of Criminal Procedure lay down the basic procedure, which is making an application to the appropriate Government for the suspension or remission of a sentence, either by the convict or someone on his behalf. In fact, this is what was suggested in Samjuben Gordhanbhai Koli v. State of Gujarat (2010) 13 SCC 466 when it was observed that since remission can only be granted by the executive authorities, the Appellant therein would be free to seek redres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of the above Sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (7) In this section and in Section 433, the expression "appropriate Government" means,- (a) in cases where the sentence is for an offence against, or the order referred to in Sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed. 63. It appears to us that an exercise of power by the appropriate Government under Sub-section (1) of Section 432 of the Code of Criminal Procedure cannot be suo motu for the simple reason that this Sub-section is only an enabling provision. The appropriate Government is enabled to "override" a judicially pronounced sentence, subject to the fulfillment of certain conditions. Those conditions are found either in the Jail Manual or in statutory rules. Sub-section (1) of Section 432 of the Code of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure reads as follows: 433-A. Restriction on powers of remission or commutation in certain cases.--Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted Under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. 67. In this context, it is necessary to refer to the decisions of the Constitution Bench in Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600 and Maru Ram v. Union of India(1981) 1 SCC 107. Both these decisions were considered in Ashok Kumar v. Union of India (1991) 3 SCC 498. 68. In Godse the Constitution Bench dealt with the plea of premature release and held that life imprisonment means that the prisoner will remain in prison for the rest of his life. Credit for remissions given or awarded has a meaning only if the imprisonment is for a definite period. Since life imprisonment is for an indefinite period, remissions earned or awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration. 70. It was then held in the same paragraph: Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of the long accumulation of remissions. (Emphasis given by us) 71. On the basis of the above decisions, the conclusion drawn in Ashok Kumar was that remissions have a limited scope. They have no significance till the exercise of power Under Section 432 of the Code of Criminal Procedure It was held, in the following words: It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would enure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner's death and remissions given under the Rules could not be regarded as a substitute [of a lesser sentence] for a sentence of transportation for life. In these circumstances, therefore, it is clear that the High Court was in error in thinking that the Respondent was entitled to be released as of right on completing the term of 20 years including the remissions. 74. Under the circumstances, it appears to us there is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years or twenty years imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government Under Section 432 of the Code of Criminal Procedure which in turn is subject to the procedural checks in that Section and the substantive check in Section 433A of the Code of Criminal Procedure. 75. In a sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , rules of this nature exist in other States as well. Thereafter, remissions earned or awarded to a convict are applied to the commuted sentence to work out the period of incarceration to fourteen years. 79. This re-engineered calculation can be made only after the appropriate Government artificially determines the period of incarceration. The procedure apparently being followed by the appropriate Government is that life imprisonment is artificially considered to be imprisonment for a period of twenty years. It is this arbitrary reckoning that has been prohibited in Ratan Singh. A failure to implement Ratan Singh has led this Court in some cases to carve out a special category in which sentences of twenty years or more are awarded, even after accounting for remissions. If the law is applied as we understand it, meaning thereby that life imprisonment is imprisonment for the life span of the convict, with procedural and substantive checks laid down in the Code of Criminal Procedure for his early release we would reach a legally satisfactory result on the issue of remissions. This makes an order for incarceration for a minimum period of 20 or 25 or 30 years unnecessary. Conclusion: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.
81. Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences-whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment, in cases such as the present is not unquestionably foreclosed. More so when, in this case, there is no evidence (contrary to the conclusion of the High Court) that Seema's body was burnt by Sandeep from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape. There is also no evidence (again contrary to the conclusion of the High Court) that Narender was a professional killer.
82. Therefore, we allow these appeals to the extent that the death penalty awarded to the Appellants is converted into a sentence of life imprisonment, subject to what we have said above.
83. We place on record our appreciation for the efforts put in by both learned Counsel for the assistance rendered in this case. X X X X Extracts X X X X X X X X Extracts X X X X
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