Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
REVIEW PETITION (CRIMINAL) NO. 308 OF 2011
IN
CRIMINAL APPEAL NO 379 OF 2009
MD. MANNAN @ ABDUL MANNAN …PETITIONER
VERSUS
...RESPONDENT
STATE OF BIHAR
O R D E R
This application is for reopening the Review Petition (Crl.)
No.308 of 2011 and for review of the final judgment and order dated
20.04.2011 passed by this Court dismissing Criminal Appeal No.379
of 2009 filed by the review petitioner and confirming his conviction,
inter alia, under Section 201, 366A, 376 and 302 of the Indian Penal
Code (IPC) and, inter alia, affirming the death sentence imposed on
him under Section 302 of the IPC.
2. It appears that the petitioner, a mason, was engaged at the
residence of the deceased victim’s grand father. On 28.9.2004 at
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2019.05.02
15:20:55 IST
Reason:
about 2.00 p.m., the petitioner gave money to the victim to bring
betel for him from Hanuman Chowk. A little while later the petitioner
2
also went to Hanuman Chowk, picked up the victim, an eight year old
girl, on his bicycle and left talking with her. The victim and the
petitioner were seen together by witnesses.
3. The victim did not return home, whereupon frantic searches
were made. The victim was not found. It was learnt that the victim
had been last seen with the petitioner.
4. The officer in-charge of Bahera Police Station, under which the
village of the petitioner falls, was informed that the victim was
missing. In course of investigation the petitioner, who had earlier
been identified as the man with whom the victim had last been seen,
riding on a bicycle, allegedly made a confessional statement in the
presence of witnesses, confessing that he had raped and murdered
the victim. The confessional statement was signed by the petitioner.
5. The petitioner is alleged to have disclosed the place where he
had raped and killed the victim. It is the case of the prosecution,
that on the basis of information given by the petitioner, the
Investigating Officer went to the village Izaar Haat Bandh, where the
dead body of the victim was recovered from the spot shown by the
petitioner, amidst wheat and ‘arahar’ fields.
6. The dead body was identified as that of the victim. The
doctor who conducted the post mortem opined that death was due to
asphyxia and haemorrhage as a result of strangulation within 8 to 24
hours from the time of post mortem examination. The doctor also
deposed that upon examination the vaginal swab collected from the
victim showed “few intact spermatozoa”. The medical evidence
3
clearly established that the victim had been raped and murdered.
However no DNA analysis of the spermatozoa was conducted by the
prosecution.
7. By a judgment and order rendered on 29.5.2007 in Sessions
Trial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. Case
No.13 of 2004, the Additional District and Sessions Judge (Fast Track
Court) No.30, on consideration of the evidence on record, held the
petitioner guilty of charges under Sections 366A, 376, 302 and 201 of
IPC. On the same day after hearing the applicant on the question of
sentence, the Fast Track Court sentenced the petitioner to undergo
rigorous imprisonment for 10 years for charge under Section 366A
IPC, rigorous imprisonment for life for charge under Section 376 IPC,
rigorous imprisonment for 7 years for charge under Section 201 IPC
and death sentence for charge under Section 302 IPC. All the
sentences except the sentence for the charge under Section 302 IPC
were to run concurrently till execution of the death sentence under
Section 302 IPC, whereby the convict was to be hanged by the neck
till his death.
8. The learned Additional District and Sessions Judge, Fast Track
court directed that the proceedings of the case be transmitted to the
High Court of Judicature at Patna for confirmation of the death
sentence. The petitioner filed an appeal being Criminal Appeal (DB)
No.963 of 2007 in the High Court against his conviction and sentence.
9. The death sentence reference being Death Reference No.6 of
2007 was heard by the Division Bench of the High Court along with
4
the Criminal Appeal (DB) No. 963 of 2007. The Division Bench, after
considering the materials on record, arrived at the finding that the
charges against the petitioner under Sections 366A, 376, 302 and
201 had been proved beyond doubt and upheld the conviction. The
appeal was dismissed and the death penalty awarded to the
petitioner by the Trial Court was confirmed.
10. The petitioner filed a Special Leave Petition in this Court to
appeal against the judgment and order of the High Court. Leave was
duly granted.
11. The appeal being Criminal Appeal No.379 of 2009 was
dismissed by this Court, by the judgment and order dated 20.4.2011,
of which review has been sought, and the death sentence confirmed
with the observation that the case fell in the category of the rarest of
rare cases.
12. The petitioner filed a petition for review of the said judgment
and order dated 20.4.2011. The said review petition was dismissed
by circulation by the same two judges on 24.8.2011.
13. By a judgment and order dated 2.9.2014 in W.P. (Crl.) No. 77
1
of 2014 (Mohd. Arif v. The Registrar of the Supreme Court ) , a
Constitution Bench of this Court held that, that review petitions in
cases of death sentences should be heard in Open Court, by a three-
Judge Bench. The Constitution Bench specifically permitted the
reopening of review petitions in all cases where review petitions had
been dismissed by circulation.
1 (2014) 9 SCC 737
5
14. There can be no doubt that in view of the judgment of this
Court in Mohd. Arif (supra) the petitioner is entitled to have the
application for review, which had been dismissed by circulation,
reopened and heard in Open Court.
15. In this petition for review we need not consider the merits of
the case, there being concurrent findings of the Trial Court, the High
Court and of this Court. This review is only restricted to the question
of whether death sentence should be commuted to life imprisonment.
2
16. In Bachan Singh vs. State of Punjab , this Court, while
upholding the validity of death sentence held, that imprisonment for
life was the rule and death sentence an exception, to be imposed in
the “rarest of rare” cases, recording special reasons. In Bachan
Singh (supra), this Court in effect held that before exercising
discretion to impose the extreme penalty of death sentence,
aggravating and mitigating circumstances are required to be
considered. Some of the mitigating factors would be the extreme
mental or emotional disturbance in which the offence might have
been committed, the possibility that the accused would not be a
continuing threat to society, the possibility of reformation and
rehabilitation of the accused, mental defect or disorder of the
accused etc.
17. In Rajesh Kumar vs. State (through Govt. of NCT of
3
Delhi) , this Court observed:-
“83. The ratio in Bachan Singh has received approval by
2 (1980) 2 SCC 684
3 (2011) 13 SCC 706
6
the international legal community and has been very
favourably referred to by David Pannick in Judicial
Review of the Death Penalty: Duckworth (see pp. 104-
05). Roger Hood and Carolyn Hoyle in their treatise on
The Death Penalty, 4th Edn. (Oxford) have also very
much appreciated the Bachan Singh ratio (see p. 285).
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.
84. 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.] 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 of any
significant mitigating factor justifies exemption from the
death penalty even in the most gruesome cases” and
Fitzgerald argues:
“Such a restrictive approach can be summarised as
follows: The normal sentence should be life
imprisonment. The death sentence should only be
imposed instead of the life sentence in the ‘rarest of
rare’ cases where the crime or crimes are of
exceptional heinousness and the individual has no
significant mitigation and is considered beyond
reformation.”
(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th
Edn., Oxford, p. 285.)
86. Taking an overall view of the facts in these appeals
and for the reasons discussed above, we hold that
death sentence cannot be inflicted on the appellant
since the dictum of the Constitution Bench in Bachan
Singh is that the legislative policy in Section 354(3) of
the 1973 Code is that for a 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 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 postulate resistance to
taking life through law’s instrumentality. Except in the
7
“rarest of rare cases” and for “special reasons” death
sentence cannot be imposed as an alternative option to
the imposition of life sentence”.
18. In Rajesh Kumar (supra), the accused was convicted of
assault and murder of two helpless children in the most gruesome
manner. This Court held that death sentence could not be inflicted,
reiterating that life imprisonment was the rule and death sentence an
exception only to be imosed in the “rarest of rare cases” and for
“special reasons” when there were no mitigating circumstances.
19. Section 235 of the Criminal Procedure Code (Cr.P.C.), reads as
follows:-
“ 235. Judgment of acquittal or conviction .—(1) After
hearing arguments and points of law (if any), 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 360,
hear the accused on the question of sentence, and then
pass sentence on him according to law.”
20. Section 235 (2) of the CrPC is not a mere formality. It is
obligatory on the part of the learned trial Judge to hear the accused
on the question of sentence and deal with it. To quote Bhagwati J. in
4
Santa Singh vs. State of Punjab .
“2. …...This provision is clear and explicit and does not
admit of any doubt. It requires that in every trial before a
court of sessions, there must first be a decision as to the
guilt of the accused. The court must, in the first instance,
deliver a judgment convicting or acquitting the accused. If
the accused is acquitted, no further question arises. But if
he is convicted, then the court has to “hear the accused on
the question of sentence, and then pass sentence on him
according to law”. When a judgment is rendered convicting
the accused, he is, at that stage, to be given an opportunity
to be heard in regard to the sentence and it is only after
4 (1976) 4 SCC 190
8
hearing him that the court can proceed to pass the
sentence.
3. This new provision in Section 235(2) is in consonance with
the modern trends in penology and sentencing procedures.
There was no such provision in the old Code. Under the old
Code, whatever the accused wished to submit in regard to
the sentence had to be stated by him before the argumentss
concluded and the judgment was delivered. There was no
separate stage for being heard in regard to sentence. The
accused had to produce material and make his submissions
in regard to sentence on the assumption that he was
ultimately going to be convicted. This was most
unsatisfactory. The legislature, therefore, decided that it is
only when the accused is convicted that the question of
sentence should come up for consideration and at that
stage, an opportunity should be given to the accused to be
heard in regard to the sentence. Moreover, it was realised
that sentencing is an important stage in the process of
administration of criminal justice- as important as the
adjudication of guilt-and it should not be consigned to a
subsidiary position as if it were a matter of not much
consequence. It should be a matter of some anxiety to the
court to impose an appropriate punishment on the criminal
and sentencing should, therefore, receive serious attention
of the court.
…..The reason is that a proper sentence is the amalgam
of many factors such as the nature of the offence, the
circumstances-extenuating or aggravating- of the offence,
the prior criminal record, if any, of the offender, the age of
the offender, the record of the offender as to employment,
the background of the offender with reference to education,
home life, sobreity and social adjustment, the emotional and
mental condition of ‘the offender, the prospects for the
rehabilitation of the offender, 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 and the current community need, if any, for such a
deterrent in respect to the particular type of offence. 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.
4. ….The hearing on the question of sentence, would be
rendered devoid of all meaning and content and it would
become an idle formality, if it were confined merely to
9
hearing oral submissions without any opportunity being
given to the parties and particularly to the accused, to
produce material in regard to various factors bearing on the
question of sentence, and if necessary, to lead evidence for
the purpose of placing such material before the court.
21. In Santa Singh (supra), Bhagwati, J. set aside the sentence of
death and remanded the case to the Sessions Court with a direction
to pass appropriate sentence after giving an opportunity to the
petitioner in the aforesaid case of being heard with regard to the
question of sentence, in accordance with the provisions of Section
235(2) CrPC as interpreted in Santa Singh (supra).
5
22. In Dagdu and Others vs. State of Maharashtra , a three-
Judge Bench of this Court referred to Santa Singh (supra) and held
that the mandate of Section 235(2) CrPC had to be obeyed in letter
and spirit. Chandrachud, J. held:-
“79. … The Court, on convicting an accused, must
unquestionably hear him on the question of sentence.
But if, for any reason, it omits to do so and the accused
makes a grievance of it in the higher court, it would be
open to that Court to remedy the breach by giving a
hearing to the accused on the question of sentence.
That opportunity has to be real and effective, which
means that the accused must be permitted to adduce
before the Court all the data which he desires to adduce
on the question of sentence. The accused may exercise
that right either by instructing his counsel to make oral
submissions to the Court or he may, on affidavit or
otherwise, place in writing before the Court whatever
he desires to place before it on the question of
sentence. The Court may, in appropriate cases, have to
adjourn the matter in order to give to the accused
sufficient time to produce the necessary data and to
make his contentions on the question of sentence. That,
perhaps, must inevitably happen where the conviction
is recorded for the first time by a higher court.”
5 (1977) 3 SCC 68
10
6
23. In Machhi Singh & Others vs. State of Punjab , this
Court held:-
“38. … (iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be
accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating
circumstances before the option is exercised.”
24. In Santosh Kumar Satishbhushan Bariyar vs. State of
7
Maharashtra , this Court observed and held:-
“ 157. The doctrine of proportionality, which appears to
be the premise whereupon the learned trial Judge as
also the High Court laid its foundation for awarding
death penalty on the appellant herein, provides for
justifiable reasoning for awarding death penalty.
However, while imposing any sentence on the accused
the court must also keep in mind the doctrine of
rehabilitation. This, considering Section 354(3) of the
Code, is especially so in the cases where the court is to
determine whether the case at hand falls within the
rarest of the rare case.
158. The reasons assigned by the courts below, in our
opinion, do not satisfy Bachan Singh test. Section
354(3) of the Code provides for an exception. General
rule of doctrine of proportionality, therefore, would not
apply. We must read the said provision in the light of
Article 21 of the Constitution of India. Law laid down by
Bachan Singh and Machhi Singh interpreting Section
354(3) of the Code should be taken to be a part of our
constitutional scheme.
159. Although the Constitutional Bench judgment of
the Supreme Court in Bachan Singh did not lay down
any guidelines on determining which cases fall within
the “rarest of rare” category, yet the mitigating
circumstances listed in and endorsed by the judgment
give reform and rehabilitation great importance, even
requiring the State to prove that this would not be
possible, as a precondition before the court awarded a
6 (1983) 3 SCC 470
7 (2009) 6 SCC 498
11
death sentence. We cannot therefore determine
punishment on grounds of proportionality alone. There
is nothing before us that shows that the appellant
cannot reform and be rehabilitated.
162. Further indisputably, the manner and method of
disposal of the dead body of the deceased was
abhorrent and goes a long way in making the present
case a most foul and despicable case of murder.
However, we are of the opinion, that the mere mode of
disposal of a dead body may not by itself be made the
ground for inclusion of a case in the “rarest of rare”
category for the purpose of imposition of the death
sentence. It may have to be considered with several
other factors.
8
25. In Ajay Pandit and Another vs. State of Maharashtra ,
this Court held:-
“47. Awarding death sentence is an exception, not the
rule, and only in the rarest of rare cases, the court could
award death sentence. The state of mind of a person
awaiting death sentence and the state of mind of a
person who has been awarded life sentence may not be
the same mentally and psychologically. The court has
got a duty and obligation to elicit relevant facts even if
the accused has kept totally silent in such situations. In
the instant case, the High Court has not addressed the
issue in the correct perspective bearing in mind those
relevant factors, while questioning the accused and,
therefore, committed a gross error of procedure in not
properly assimilating and understanding the purpose
and object behind Section 235(2) CrPC.”
9
26. In Mohinder Singh vs. State of Punjab , this Court held:-
“ 22. The doctrine of “rarest of rare” confines two
aspects and when both the aspects are satisfied only
then the death penalty can be imposed. Firstly, the
case must clearly fall within the ambit of “rarest of
rare” and secondly, when the alternative option is
unquestionably foreclosed. Bachan Singh suggested
selection of death punishment as the penalty of last
resort when, alternative punishment of life
imprisonment will be futile and serves no purpose.
8 (2012) 8 SCC 43
9 (2013) 3 SCC 294
12
23. In life sentence, there is a possibility of achieving
deterrence, rehabilitation and retribution in different
degrees. But the same does not hold true for the death
penalty. It is unique in its absolute rejection of the
potential of convict to rehabilitate and reform. It
extinguishes life and thereby terminates the being,
therefore, puts an end to anything to do with life. This
is the big difference between two punishments. Thus,
before imposing death penalty, it is imperative to
consider the same. The “rarest of rare” dictum, as
discussed above, hints at this difference between
death punishment and the alternative punishment of
life imprisonment. The relevant question here would be
to determine whether life imprisonment as a
punishment would be pointless and completely devoid
of any reason in the facts and circumstances of the
case. As discussed above, life imprisonment can be
said to be completely futile, only when the sentencing
aim of reformation can be said to be unachievable.
Therefore, for satisfying the second aspect to the
“rarest of rare” doctrine, the court will have to provide
clear evidence as to why the convict is not fit for any
kind of reformatory and rehabilitation scheme”.
10
27. In Panchhi and Others vs. State of U.P. , this Court
observed:-
“20. … No doubt brutality 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
case.”
28. In Mukesh and Another v. State (NCT of Delhi) and
11
Others , a three-Judge Bench of this Court considered the earlier
judgments of this Court referred to above and deemed it appropriate
10 (1998) 7 SCC 177
11 (2017) 3 SCC 717
13
to give opportunity to the accused to file affidavits to bring on record
mitigating circumstances for reduction of the sentence.
12
29. In Haru Ghosh v. State of W.B. , this Court commuted
death sentence to life imprisonment in case of a dastardly murder of
two helpless persons for no fault of theirs. This Court, however, in
commuting death sentence took into consideration the following
factors:-
i. There was no pre-mediation on the part of the accused;
ii. The act was on the spur of the moment;
iii.The accused was not armed with any weapon;
iv. It was unknown under what circumstances the accused
had entered the house of the deceased and what prompted
him to assault the boy; and
v. The cruel manner in which the murder was committed
could not be the guiding factor and the accused himself had
two minor children.
30. In Haru Ghosh (supra) , this Court observed, “….the cruel
manner in which the murder was committed and the subsequent
action on the part of the accused in severing the parts of the body of
the deceased, do not by themselves become the guiding factor in
favour of death sentence.”
13
31. In Lehna v. State of Haryana , this Court observed and
held that the mental condition of the accused which led to the assault
could not be ignored, though the same may not be relevant to judge
12 (2009) 15 SCC 551
13 (2002) 3 SCC 76
14
culpability. It is certainly a factor while considering the question of
sentence.
32. In the aforesaid case even though three lives had been lost by
reason of the crime, this Court modified the punishment by
commuting death sentence to life imprisonment, observing that there
was no evidence of any diabolic planning to commit the crime,
though the act was cruel.
33. Learned counsel appearing on behalf of the applicant
submitted that since his arrest on 28.2.2004 the applicant has
undergone about 15 years in custody and 11 years as a convict
sentenced to death, lodged in virtual solitary confinement in a single
cell high security ward in Bhagalpur Prison in Bihar.
34. In Shatrughan Chauhan and Anr. vs. Union of India &
14
Ors. , this Court considered and discussed the possibility of
condemned convicts, who are sentenced to death developing mental
disorder, upon reference to relevant provisions of the U.P. Jail Manual
and similar provisions of other jail manuals. This Court observed:
“ 86. The above materials, particularly, the directions of
the United Nations international conventions, of which
India is a party, clearly show that insanity/mental
illness/schizophrenia is a crucial supervening
circumstance, which should be considered by this Court
in deciding whether in the facts and circumstances of
the case death sentence could be commuted to life
imprisonment. To put it clear, “insanity” is a relevant
supervening factor for consideration by this Court.
87. In addition, after it is established that the death
convict is insane and it is duly certified by the
competent doctor, undoubtedly, Article 21 protects him
and such person cannot be executed without further
clarification from the competent authority about his
14 (2014) 3 SCC 1
15
mental problems. It is also highlighted by relying on
commentaries from various countries that civilised
countries have not executed death penalty on an
insane person. ………. In view of the well-established
laws both in the national as well as international
sphere, we are inclined to consider insanity as one of
the supervening circumstances that warrants for
commutation of death sentence to life imprisonment.”
35. In Shatrughan Chauhan (supra) , this Court also referred to
15
Sunil Batra vs. Delhi Administration & Ors. , and reiterated
that if solitary confinement was illegal, the same punishment could
not be scuffled into the legal system by naming it differently. If
prolonged solitary confinement of a death sentence convict is a
ground for commutation of death sentence, solitary confinement, in
effect, on ground of high security or otherwise would also be a
ground for commutation of death sentence.
36. Counsel further submitted that the Trial Court has convicted
the petitioner and sentenced him to death considering the inhuman
and brutal nature of the crime alone. The findings of the Trial Court
with regard to the criminal antecedents is not based on any cogent
materials. The Trial Court merely recorded the submission of the
public prosecutor that the petitioner had been accused in another
trial in which the petitioner had “managed his acquittal in the garb of
compromise”(para 29).
37. Citing the judgment of this Court in Birju vs. State of
16
Madhya Pradesh Counsel submitted, and rightly that only
convictions which have attained finality can be considered as
15 (1978) 4 SCC 494
16 (2014) 3 SCC 421
16
“aggravating circumstances”.
38. Counsel submitted that the Trial Court did not give opportunity
to the petitioner to show mitigating circumstances, notwithstanding a
duty to hear the accused under Section 235(2) of the Code of
Criminal Procedure (Cr.PC) on the question of sentence.
39. As argued by learned counsel appearing on behalf of the
petitioner, the accused had the right to be provided with legal aid at
all stages, including the stage of consideration of the question of
sentence. After the conviction of the petitioner, he should have been
given the benefit of being accompanied by a social worker to guide
and counsel him and also to help him to get an effective hearing on
the question of sentence.
40. In this case, the petitioner was not accompanied by a social
worker. Furthermore the legal aid provided to the petitioner was
inadequate. The legal aid lawyer representing the applicant argued
against the conviction, but did not seek the opportunity to draw
attention of the Court to mitigating circumstances for imposition of
sentence of life imprisonment in place of death. He only submitted
that the petitioner had falsely been implicated.
41. For effective hearing under Section 235(2) of the Code of
Criminal Procedure, the suggestion that the court intends to impose
death penalty should specifically be made to the accused, to enable
the accused to make an effective representation against death
sentence, by placing mitigating circumstances before the Court. This
has not been done. The Trial Court made no attempt to elicit relevant
17
facts. Nor did the Trial Court give any opportunity to the petitioner
the opportunity to file an affidavit placing on record mitigating
factors. As such the petitioner has been denied an effective hearing.
42. Contrary to the dictum of this Court, inter alia, in Dagdu
(supra) and Santa Singh (supra) the petitioner was not given a
real, effective and meaningful hearing on the question of sentence
under Section 235(2) of the Cr.P.C. The death sentence imposed on
the petitioner is liable to be commuted to life imprisonment on this
ground.
43. The records reveal that after the judgment and order of
conviction was pronounced on 29.5.2007, the matter was directed to
be put up on 31.5.2007 for hearing on the point of sentence.
However, on the same day i.e., 29.5.2007 itself the petitioner was
produced from jail custody and death sentence was imposed. The
order imposing the death sentence is extracted hereinbelow for
convenience:-
“26. Convict Md. Mannan @ Abdul Mannan
produced from jail custody.
27. Heard learned P.P and learned lawyer for the
convict on the point of passing sentence against the
convict.
28. Learned lawyer for the convict has again
repeated in his submission that the convict has been
falsely implicated in this case.
29. On the other learned P.P. has firmly asserted
that the guilt of the convict in respect of the charges
framed against him has been proved beyond shadow of
all reasonable doubts which can only be treated as
barbarous act and crime against the whole society
beyond imagination. It is also submitted that the
18
convict was an accused in another S.T. No.172/93 which
was disposed by the Court of Learned District &
Sessions Judge, Darbhanga on 18.9.1993 in which the
convict managed his acquittal in the garb of
compromise. It is submitted by the learned P.P. to
award maximum sentence against the convict in this
case.
30. Considering the submission of the respective
sides and nature of the charges against the convict I
find that the guilt of the convict is not only heinous and
barbarous but crime against the society in general. The
convict has been found guilty of rape and murder of a
minor girl committed in a gruesome and premeditated
manner after kidnapping her which can only be treated
as inhuman and brutal act.
31. The purpose of law will be served by awarding
maximum sentence against the convict. Convict Md.
Mannan @ Abdul Mannan is therefore sentenced to
undergo R.I. for 10 years for charge u/s 366 A IPC, R.I.
for life for charge u/s 376 I.P. and R.I. for seven years for
charge u/s 201 IPC and awarded death sentence for
charge u/s 302 IPC. All the sentence except sentence
for charge u/s 302 IPC shall run concurrently till
execution of death sentence for charge u/s 302 I.P.C.
whereby the convict shall be hanged by the neck till his
death.
32. Let entire proceeding of this case be
transmitted to the Hon’ble High Court, Patna for
confirmation of capital punishment.”
44. On a perusal of the order of sentence, it is patently clear that
the learned lawyer representing the petitioner only submitted that
the petitioner had falsely been implicated in the case. He did not at
all make any submission with regard to the sentence. He did not
seek further time to prepare himself, though the question of life and
death of a convict was involved. The Trial Court proceeded on the
basis of the submission of the learned Public Prosecutor that the
charges had been proved beyond reasonable doubt.
19
45. The Trial Court found, and rightly, that the crime committed
was barbarous, and a crime against society, beyond imagination.
The question is whether death penalty should have been imposed.
46. The Trial Court has apparently been swayed by the submission
of the learned Public Prosecutor that the convict, that is, the
petitioner, had been an accused in another Sessions Trial being ST
No.172/93 which was disposed of by the Court of the learned District
and Sessions Judge, Darbhanga on 18.9.1993. The Trial Court
commented that “the convict managed his acquittal in the garb of
compromise”.
47. The Trial Court has apparently not perused the order dated
18.9.1993 passed by the Court of the District and Sessions Judge,
Darbhanga on 18.9.1993. The petitioner having been acquitted by a
Court of law, the Trial Court ought not to have been swayed by the
unsubstantiated submission of the learned Public Prosecutor that the
convict “had managed” his acquittal.
48. The Trial Court found the guilt of the convict i.e. the petitioner,
not only heinous and barbarous, but a crime against society in
general, as he had been found guilty of rape and murder of a minor
girl, committed in a gruesome and per-meditated manner, after
kidnapping her, which could only be termed as inhuman and brutal.
49. There can be no doubt that rape and murder of a 8 year old
girl shocks the conscience. It is barbaric. There is, however, no
evidence to support the finding that the murder was pre-meditated.
The petitioner did not carry any weapon. Moreover, the Trial Court
20
has apparently not considered the question of whether the crime is
the rarest of rare crimes as mandated by the Supreme Court in
Bachan Singh (supra).
50. The reasoning of the High Court for confirming the extreme
penalty of death sentence is extracted hereinbelow for convenience:-
“26. The trial court has awarded the extreme penalty of death
sentence to the appellant on the basis of submissions in
respect of criminal antecedents of the appellants and also on
the finding that the guilt is not only heinous and barbarous but
crime against the society in general. It has been submitted
that the criminal antecedents of the appellant should not have
been taken into consideration by the trial court and hence the
special reasons give by the trial court for awarding death
penalty is vitiated in law.
27. I have considered the entire facts and the aforesaid
submissions for deciding whether the death penalty awarded
to the appellant should be confirmed or not. In this regard it is
noticed that appellant is a matured man aged about 42-43
years. He has committed the heinous and barbarous crime of
rape and murder of a girl aged about 7 years who was thin
built and of 4’ height. Such a child was incapable of arousing
lust in normal situation. She was kidnapped in a planned
manner because she was innocent and could not understand
the design of the appellant. She became helpless victim of a
diabolic middle aged man whom the child could trust as an
elder person. The medical evidence shows the cruel manner of
causing injuries on the face, nails and body of the child at the
time of committing rape which was followed by murder. This
was all pre-planned as is apparent from the manner of
kidnapping and selection of a lonely place where crime was
committed and body concealed. Crime of this nature against a
child girl is definitely a crime against the society. The facts of
the case, the offences taken together along with the age of the
victim and the age of the appellant clearly bring the case in the
category of ‘rarest of the rare cases” in which interest of justice
requires award of maximum penalty. In such a case award of a
lesser punishment would not be appropriate and adequate.
Hence even after ignoring the material regarding criminal
antecedents of the appellant, I am of the view that the
appellant deserves extreme penalty of death. Hence, the
death penalty awarded to the appellant by the trial court is
confirmed and the reference is answered in affirmative. The
appeal of the appellant is dismissed.”
21
51. As argued by learned counsel appearing on behalf of the
petitioner, the High Court found the offence to be in the category of
rarest of the rare cases, having regard to the nature of the offence
and the age of the victim. The fact that no criminal antecedents had
been brought on record has casually been brushed aside as
irrelevant.
52. Counsel submitted, and rightly, that the High Court failed to
appreciate that the Trial Court had erred in law in awarding death
penalty, by proceeding on the basis that the petitioner had a criminal
history, when he had been acquitted.
53. The High Court upheld the death penalty by concluding that
the convict deserved death penalty “even after ignoring the material
regarding criminal antecedents of the appellant”. The High Court
has not apparently considered the mitigating circumstances. This
Court confirmed the death sentence on consideration of the brutality
and heinousness of the crime and the age of the victim and formed
opinion that the petitioner was a menace to the society and would
continue to be so. He could not be reformed.
54. Counsel submitted that the brutality of the crime and age of
the victim was not ground enough to inflict death sentence.
Furthermore, the opinion of this Court that the petitioner would be a
menace to society and could not be reformed had no basis. Learned
counsel submitted that the petitioner had been convicted on
circumstantial evidence, based on faulty investigation.
22
th
55. Counsel submitted that even though Dr. P.K. Das (4
Prosecution Witness) had collected the vaginal swab of the victim,
which upon examination showed “few intact spermatozoa”, no DNA
analysis was conducted or sought to be conducted by the prosecution
for which adverse inference might be drawn. In support of the
aforesaid submission, counsel placed reliance on Kalu Khan v.
17
State of Rajasthan and Santosh Kumar (supra) .
56. Notwithstanding the omission of the prosecution to conduct
DNA analysis the Trial Court may have found the evidence sufficient
to convict the petitioner. Moreover, as rightly argued by Counsel,
the quality of evidence is a factor relevant to sentencing.
18
57. In Ramesh and Others v. State of Rajasthan , this Court
observed and held:-
“68. Practically, the whole law on death sentence was
referred to in Santosh Kumar case. In para 56, the Court
observed: (SCC p. 527)
‘56. … The court must play a proactive role to
record all relevant information at this stage. Some
of the information relating to crime can be culled
out from the phase prior to sentencing hearing.
This information would include aspects relating to
the nature, motive and impact of crime, culpability
of convict, etc. Quality of evidence is also a
relevant factor. For instance, extent of reliance on
circumstantial evidence or child witness plays an
important role in the sentencing analysis. But what
is sorely lacking, in most capital sentencing cases,
is information relating to characteristics and socio-
economic background of the offender. This issue
was also raised in the 48th Report of the Law
Commission.’”
19
58. In Ram Deo Prasad v. State of Bihar , this Court referred
17 (2015) 16 SCC 492
18 (2011) 3 SCC 685
19 (2013) 7 SCC 725
23
to and relied upon the earlier judgments of this Court in Santosh
Kumar Satishbhushan Bariyar (supra) and Ramesh and Others
(supra) and reaffirmed that the quality of evidence was also a
relevant factor in considering the question of death sentence. In the
aforesaid case, this Court felt it unsafe to confirm the death sentence
awarded for rape and murder of a four year old child.
59. In this case, the conviction of the petitioner is based on
circumstantial evidence and the alleged extra judicial confession
made by the petitioner to the police in course of investigation, on the
basis of which certain recoveries were made. There is no forensic
evidence against the petitioner. It would, in our view, be unsafe to
uphold the imposition of death sentence on the petitioner.
20
60. In Sushil Sharma vs. State (NCT of Delhi) this Court
considered the peculiar facts of the case and did not award the death
penalty since the only evidence was circumstantial and there were
some factors that were to the advantage of the appellant. This Court
held:
“101. We notice from the above judgments that mere
brutality of the murder or the number of persons killed or
the manner in which the body is disposed of has not
always persuaded this Court to impose death penalty.
Similarly, at times, in the peculiar factual matrix, this
Court has not thought it fit to award death penalty in
cases, which rested on circumstantial evidence or solely
on approver’s evidence.”
61. In Kalu Khan ( supra ), this Court referred to its earlier
decision in Swamy Shraddananda (2) @ Murali Manohar Mishra
20 (2014) 4 SCC 317
24
21
vs. State of Karnataka and held, in the facts of the case, the
balance of circumstances introduced an uncertainty in the
“culpability calculus” and therefore there was an alternative to the
imposition of the death penalty. Accordingly, the sentence was
commuted to imprisonment for life.
62. In Santosh Kumar (supra) this Court clearly held that while
there is no prohibition in law in awarding a death sentence in a case
of circumstantial evidence, but that evidence must lead to an
exceptional case. It was said:
“167. The entire prosecution case hinges on the evidence
of the approver. For the purpose of imposing death
penalty, that factor may have to be kept in mind. We will
assume that in Swamy Shraddananda (20, this Court did
not lay down a firm law that in a case involving
circumstantial evidence, imposition of death penalty would
not be permissible. But, even in relation thereto the
question which would arise would be whether in arriving at
a conclusion some surmises, some hypothesis would be
necessary in regard to the manner in which the offence
was committed as contradistinguished from a case where
the manner of occurrence had no role to play. Even where
sentence of death is to be imposed on the basis of
circumstantial evidence, the circumstantial evidence must
be such which leads to an exceptional case.”
22
63. In Sebastian @ Chevithiyan vs. State of Kerala , this
Court held:
“18. We are of the opinion that in the background of
these facts, the death penalty ought to be converted to
imprisonment for life but in terms laid down by this Court
in Swamy Shraddanada (2) vs. State of Karnataka [(2008)
13 SCC 767] as his continuance as a member of an
ordered society is uncalled for..”
64. Counsel finally submitted that the legal aid lawyer
21 (2008) 13 SCC 767
22 (2010) 1 SCC 58
25
representing the petitioners had a positive onus to lead evidence
regarding the possibility of reformation of the petitioner which he did
not discharge. The evidence on reformation had to be independent
of the circumstances of the crime. In this context, reliance has been
placed on Rajesh Kumar (supra), Santosh Kumar Satishbhushan
Bariyar (supra) and Lehna (supra).
65. Counsel argued that legal representation provided to the
petitioner was ineffective at all stages. The petitioner was not
represented by counsel before the Trial Court, at the time of framing
of charge on 21.2.2004. On 6.6.2005 the petitioner made a request
for legal aid. During the sentencing the Counsel did not even seek
time to place mitigating circumstances.
66. Learned counsel submitted that legal representation was not
only ineffective in the Trial Court but also before the High Court and
before this Court. Ineffective legal representation to defend the
convict on the question of punishment is no legal representation and
a ground for commutation of death sentence. This proposition finds
support from the judgment of this Court in Ram Deo Prasad (supra).
67. The learned counsel has drawn the attention of this Court to
various orders of this Court where this Court has considered
mitigating circumstances and commuted death sentence in cases
involving rape and murder of a minor. Unfortunately, those orders
could not be placed before the Trial Court. Had those orders been
noticed, the petitioner may not have been awarded death sentence.
68. Relying on Mukesh and Anr. (supra), Counsel submitted that
26
this Court can call for affidavit or materials gathered by the
petitioner’s counsel, to fix the lacunae in sentencing in the the courts
below. The legal representatives of the petitioner have conducted
interviews with the petitioner and his family members and the
following factors require consideration:-
(i) Petitioner has lived his entire life in poverty.
(ii) He has never access to formal education
(iii) He started working at the age of 15 when his father was
incapacitated for the remainder of his life after suffering a
stroke.
(iv) Petitioner was married at the age of 22 and has five
dependent children
(v) The petitioner struggled to support his wife and children
(vi) The family is in abject poverty.
69. Counsel further submitted that during conversation with the
petitioner, he was found to lose sense of reality and talk about being
possessed by imaginary personalities which he described as jinns.
He claimed to lose control over his thoughts and actions when
possessed. Counsel submitted that the petitioner suffered from
instability of mind. In this regard, it has been submitted that:-
(i) petitioner had received multiple near fatal injuries in
his head in the course of his life which have caused
persistent headaches, loss of memory and disorientation.
(ii) The petitioner had been diagnosed and treated for
meningeal tuberculosis or Brain TB for a year and half at
Darbhanga Medical College around the year 1990.
Unfortunately records of the time cannot be traced.
(iii) Socio-economic conditions of the petitioner made it
impossible for the petitioner to avail effective treatment
for his mental instability.
70. There are transcripts of a consulting psychiatrist, Dr. Kaustubh
27
Joag, who opined on 29.10.2008 that there is “a strong possibility
that the petitioner might be suffering from organic (neurological)
and/or mental health issues” and advised an assessment on the
psychosis spectrum and on the organic brain damage which might
have altered his behaviour. A copy of the opinion of Dr. Kaustubh
Joag, MD has been made over. Dr. Joag is apparently a Psychiatrist of
standing registered with Maharashtra Medical Council, who has
several publications and is recipient of awards.
71. Counsel submits that if this Court gives the applicant an
opportunity, an affidavit shall be filed placing the abovementioned
factors on record. Counsel submits that in the light of deficient
sentencing procedure as pointed out, this Court may consider the
socio-economic conditions and the mental illness concerns of the
petitioner as also other mitigating factors such as absence of criminal
antecedents on record, to commute the death sentence imposed on
the petitioner, to life imprisonment.
72. The review petition, filed about eight years ago, was as
observed above, dismissed by circulation on 24.08.2011. Even
thereafter, for almost three years the death sentence was not
executed. This application for reopening the review and hearing the
same in Open Court, has also been pending for over four years.
Calling for affidavits would only delay the matter. The petitioner has
for all these years virtually been in solitary confinement on some
ground, may be the ground of his own security. This Court might also
take judicial notice of the opinion of the psychiatrist, Dr. Joag which
28
reveals that the petitioner is not mentally sound.
73. In Lehna (supra) Shatrughan Chauhan (supra), this Court
held that mental illness is one of the supervening circumstances in
commutation of death sentence to life imprisonment. The aforesaid
view was confirmed by this Court in Navneet Kaur v. State (NCT
23
of Delhi) and Another .
74. The proposition of law which emerges from the judgments
referred to above is itself death sentence cannot be imposed except
in the rarest of rare cases, for which special reasons have to be
recorded, as mandated in Section 354(3) of the Criminal Procedure
Code. In deciding whether a case falls within the category of the
rarest of rare, the brutality, and/or the gruesome and/or heinous
nature of the crime is not the sole criterion. It is not just the crime
which the Court is to take into consideration, but also the criminal,
the state of his mind, his socio-economic background, etc. Awarding
death sentence is an exception, and life imprisonment is the rule.
75. Therefore, before imposing the extreme penalty of death
sentence, the Court would have to satisfy itself that death sentence is
imperative, as otherwise the convict would be a threat to society, and
that there is no possibility of reform or rehabilitation of the convict,
after giving the convict an effective, meaningful, real opportunity of
hearing on the question of sentence, by producing materials.
76. The legal assistance provided to the convict at every stage
including the stage of hearing on the question of sentence has to be
23 (2014) 7 SCC 264
29
effective and even if the accused has remained silent, the Court
would be obliged and duty bound to elicit relevant factors.
Opportunity should have been given to the convict to bring on record
mitigating circumstances for reduction of the sentence and a balance
struck between the aggravating and the mitigating circumstance.
77. The petitioner, as observed above, did not get the benefit of
competent legal assistance. The Trial Court also did not make any
attempt to elicit materials relevant to the imposition of death
sentence. No affidavit was called for. The question of whether there
were any mitigating circumstances was not addressed by the Trial
Court or the appellate courts.
78. As observed above, even though the hearing under Section
235(2) on the question of sentence was fixed on 31.5.2007, that is,
two days after pronouncement of the judgment and order of
conviction of the petitioner, on 29.5.2007, the hearing was preponed
to 29.5.2007 itself after the petitioner was produced from jail custody
and death sentence was imposed.
79. Imposition of death sentence on the same day after
pronouncement of the judgment and order of conviction may not, in
itself, vitiate the sentence, provided the convict is given a meaningful
and effective hearing on the question of sentence under Section
235(2) Cr.P.C with opportunity to bring on record mitigating factors.
80. Preponement by the Trial Court of hearing under Section
235(2) Cr. P.C at short notice, which is in effect, no notice, appears to
have denied the petitioner an effective hearing. The hearing under
30
Section 235(2) was reduced to a mere formality. The Court hastily
proceeded to impose death sentence considering the dastardly
nature of the crime for which the petitioner had been convicted.
81. In this case, an eight year old innocent girl fell prey to the
carnal desire and lust of the petitioner. It is not known whether there
was any pre-meditation on the part of the petitioner to murder the
victim. The circumstances in which he murdered the victim are also
not known. The conviction is based on circumstantial evidence and
extra judicial confession made by the petitioner to the police in
course of investigation. There can be no doubt that the crime is
abhorrent, but it is doubtful as to whether the crime committed by
the petitioner can be termed as “rarest of the rare”.
82. There is also no material at all, not to speak of cogent
material, to establish that the appellant was incapable of being
reformed, that he would remain a threat to society, and that the only
punishment that could be given, having regard to the nature of the
crime, is death sentence.
83. The mere fact that the petitioner and/or his Counsel chose to
remain silent on the question of sentence and did not make any
submission with regard to the same in the Trial Court or the Higher
Appellate Courts, does not debar the petitioner from agitating the
existence of mitigating circumstances at this stage, since principles
of constructive res judicata can have no application to matters
relating to life and death.
84. It is open to the Court to either remit the question of sentence
31
to the Trial Court for fresh consideration, after giving adequate
opportunity of hearing or to remedy the breach by giving the
petitioner a hearing, as held in Dagdu ( supra ) . On overall
consideration of all relevant facts and circumstances including the
long pendency of proceedings, we have opted for the latter course.
85. It is well recognised worldwide, that owing to the difficult
circumstances prevailing in prisons, such as, enforced solitude,
inadequate health care, loss of livelihood etc., prisoners often
develop mental illness after their admission into prison. The
petitioner has been undergoing prolonged confinement which is
solitary in effect for all practical purposes, though not termed solitary
confinement. This Court, in the case of Shatrughan Chauhan
(supra), while strongly relying upon international Conventions, has
held “insanity” to be a pertinent supervening factor which must be
taken into consideration by the courts while awarding death penalty.
Moreover, this Court had held therein that Article 21 protects such
persons from being executed without obtaining further clarification
from the competent authority. Lastly, placing reliance upon laws
operating in both international as well as national arenas, this Court
concluded that mental illness is a relevant factor which warrants
commutation of death sentence to life imprisonment.
86. It is also pertinent to note herein that the relevant Prison Rules
also recognise the phenomenon of post-conviction mental illness and
state that the execution of such persons shall be deferred, pending
32
24
orders of the Government . In th elight of the aforesaid
considerations, we conclude that the mental health of the petitioner
at the time of execution is a relevant mitigating factor which must be
taken into consideration in the present case. As observed above,
there are materials put forward now, in the form of medical opinion,
which show that the petitioner is not mentally sound. For the reasons
discussed above, we are of the view that it would not be appropriate
and/or safe to affirm the death sentence awarded to the petitioner.
87. In Swamy Shraddananda (supra), this court held:
“92. The matter may be looked at from a slightly different
angle. The issue of sentencing has two aspects. A
sentence may be excessive and unduly harsh or it may be
highly disproportionately inadequate. When an appellant
comes to this Court carrying a death sentence awarded by
the trial court and confirmed by the High Court, this Court
may find, as in the present appeal, that the case just falls
short of the rarest of the rare category and may feel
somewhat reluctant in endorsing the death sentence. But
at the same time, having regard to the nature of the
crime, the Court may strongly feel that a sentence of life
imprisonment subject to remission normally works out to
a term of 14 years would be grossly disproportionate and
inadequate. What then should the Court do? IF the Court’s
option is limited only to two punishments, one a sentence
of imprisonment, for all intents and purposes, of not more
than 14 years and the other death, the Court may feel
tempted and find itself nudged into endorsing the death
penalty. Such a course would indeed be disastrous. A far
more just, reasonable and proper course would be to
expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus
between 14 years’ imprisonment and death. It needs to
be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the
case, the sentence of 14 year’s imprisonment would
amount to punishment at all.”
25
88. In Mulla and Another v. State of U.P. , this Court has
24 Bihar Prisons Manual 2012, Rule 642
25 (2010) 3 SCC 508
33
affirmed that it is open to the Court to prescribe the length of
incarceration. This is especially true in cases where death sentence
has been replaced by the life imprisonment. This Court observed,
“the court should be free to determine the length of imprisonment
which will suffice the offence committed.”
89. Even though life imprisonment means imprisonment for entire
life, convicts are often granted reprieve and/or remission of sentence
after imprisonment of not less than 14 years. In this case,
considering the heinous, revolting, abhorrent and despicable nature
of the crime committed by the petitioner, we feel that the petitioner
should undergo imprisonment for life, till his natural death and no
remission of sentence be granted to him.
90. We, therefore, commute the death sentence imposed on the
petitioner to life imprisonment, till his natural death, without reprieve
or remission.
91. The review petition is accordingly disposed of.
.……………................................J.
(N. V. RAMANA)
.…………...................................J.
(MOHAN M. SHANTANAGOUDAR)
…………….................................J.
(INDIRA BANERJEE)
FEBRUARY 14, 2019
NEW DELHI