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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 ..... re 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 black magic which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-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 should actually commence with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration: (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. However for convenience, all the propositions culled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised 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 challenges the facts. ( b) It is to be emphasised that in exercising its discretion to choose ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reference to balancing all the aggravating and mitigating circumstances of the crime to read as follows: (a) The normal rule is that the offence of murder shall be punished with the sentence of life i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh 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 Under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance Under Section 37 and Section 129 of the said Code. In so far as mitigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 well so as to remove the vice of arbitrariness from our capital sentencing system. It can be safely said that the Bachan Singh threshold of the rarest of rare cases has been most variedly and inconsistently applied by the various High Courts as also this Court. 32. It does appear that in view of the inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Report, this Court concluded that the convict was a menace to society and it was held as follows: We are of the opinion that the Appellant is a menace to the society and shall continue to be so and he cannot be reformed. We have no manner of doubt that the case in hand falls in the category of the rarest of rare cases and the trial court had correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 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 the death sentence awarded to two of the criminals to imprisonment for life with a direction that they should not be released until they complete 25 years of actual imprisonment. The third criminal was sentenced to undergo 20 years of actual imprisonment. That these criminals were young persons who did not have criminal antecedents weighed in reducing their death sentence. 47. Sebastian v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 firmly declined to be drawn into making any standardization or categorization of cases for awarding death penalty . In fact, in Bachan Singh the Constitution Bench gave over half a dozen reasons against the argument for standardization or categorization of cases. Swamy Shraddananda observed that Machhi Singh overlooked the fact that the Constitution Bench in Jagmohan Singh and Bachan Singh had resolutely refrained from such an attempt. Accordingly, it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 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 has effectively been nullified by awarding sentences of 20 years, 25 years and in some cases without any remission. Is this permissible? Can this Court (or any Court for that matter) restrain the appropriate Government from granting remission of a sentence to a convict? What this Court has done in Swamy Shraddananda and several other cases, by giving a sentence in a capital offence of 20 years or 30 years imprisonment without remission, is to effectively injunct the appropriate Government from exercising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 redress from the appropriate Government by making a representation in terms of Section 432 of the Code of Criminal Procedure. Section 432 of the Code of Criminal Procedure reads as follows: 432. Power to suspend or remit sentences--(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent; (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 Criminal Procedure cannot be read to enable the appropriate Government to further override the judicial pronouncement over and above what is permitted by the Jail Manual or the statutory rules. The process of granting additional remission under this Section is set into motion in a case only through an application for remission by the convict or on his behalf. On such an application being made, the appropriate Government is required to approach the presiding judge of the Court before or by which the conviction was made or confirmed to opine (with reasons) whether the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch 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 awarded are really theoretical. This is what this Court had to say: Briefly stated the legal position is this: Before Act 26 of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sentence is remitted Under Section 432, in which case the remission would be subject to limitation of Section 433A of the Code, or constitutional power has been exercised under Article 72/161 of the Constitution. 72. On this issue, it was questioned in Godse whether there is any provision of law where under a sentence for life imprisonment, without any formal remission by the appropriate Government, can be automatically treated as one for a definite period. It was observed that no such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. It was noted that though the Government of India stated before the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, therefore, the application of Section 432 of the Code of Criminal Procedure to a convict is limited. A convict serving a definite term of imprisonment is entitled to earn a period of remission or even be awarded a period of remission under a statutory rule framed by the appropriate Government or under the Jail Manual. This period is then offset against the term of punishment given to him. In such an event, if he has undergone the requisite period of incarceration, his release is automatic and Section 432 of the Code of Criminal Procedure will not even come into play. This Section will come into play only if the convict is to be given an additional period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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: 80. The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude: 1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach. 2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A bala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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