1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.410-411 OF 2012

SANTOSH KUMAR SINGH … APPELLANT

VERSUS

STATE OF MADHYA PRADESH … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

These appeals are directed against the common impugned

judgment dated 24th March, 2011 passed by the High Court of

Madhya Pradesh, Principal Seat at Jabalpur, by which High

Court upheld the judgment of conviction and sentence for the

offences u/s 302, 307, 394, 397 and 450 IPC, as follows:

Section Sentence imposed

For offence under Section 302 Sentenced to death.

IPC (on two counts);

For offence under Section 307 Sentence for life on each

IPC (on two counts); count with fine of Rs.10,000/-
each on failure of payment RI
for two years each.

For offence under Section 394 RI for ten years on each count
read with Section 397 (on four with fine of Rs.5,000/- each
counts); on failure of payment further
RI for one year each.
For offence under Section 450 RI for ten years with fine of
IPC. Rs.5,000/-. On failure of
payment, further RI for one
year.

2. The learned counsel for the appellant assailed the

conviction, inter alia, on the following grounds:

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(a) The trial was not fair as the appellant was not
given an opportunity to defend by the counsel of his
choice.

(b) The Trial Court gravely erred in placing

implicit reliance on the statement of Razia Khatoon
(PW-4) and Zeenat Parveen (PW-3) and on the evidence
of recovery of the ornaments and other articles from
the possession of the appellant.

(c) The death sentence awarded by the Trial Court

as confirmed by the High Court is not justified, as
no case of rarest of the rare is made out.

3. The case of the prosecution is that the accused-Santosh

Kumar Singh was known to the family of Gulam Mohd. including

his wife, Noorjahan, son Javed Akhtar, and daughters viz. Rozi

@ Razia and Zeenat Parveen. On 7th May, 2010, accused came to

their house in Sector No.12, Quarter No.B-664, N.C.L. Colony,

Singrauli at about 2 p.m. He had a chat with Noorjahan Begum

(deceased) for about 30 minutes. In the same room besides her

Rozi @ Razia Khatoon(PW-4) and Zeenat Parveen (PW-3) were also

present. Javed Akhtar (deceased), son of Noorjahan Begum was

sleeping in the bedroom. After accused left, Noorjahan Begum

(deceased) started offering Namaz, Rozi @ Razia went to

bathroom to take bath and Zeenat Parveen was sitting in the

outside room. After sometime, accused came back and knocked

the door; Zeenat Parveen opened the door and the accused came

inside. At that time Rozi @ Razia came out of the bathroom and

saw accused talking to Zeenat in the outside room, at that

moment, the accused suddenly pulled out an iron hammer from

his T-shirt and hit on the head of Zeenat Parween two-

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three times with hammer. Zeenat Parveen screamed and became

unconscious. The accused, thereafter, with intention to kill

Noorjahan Begum and Javed Akhtar also hit them with hammer on

their heads, because of which both fell down and became

unconscious. After that accused hit Rozi @ Razia by the hammer

on her head with an intention to kill her resultantly Razia’s

head got fractured. Thereafter, the accused opened the

almirah, suitcases and boxes and looted two gold chains, one

pair of tops, one pair of bali, one pair of jhala, three

rings, one nose pin and four pairs of silver anklets,

artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan

Begum. He also took out four brass bangles from the hands of

Noorjahan Begum. As a result of assault Noorjahan Begum died

on the spot. On hearing shrieks of Rozi @ Razia, Ramesh

Satnami (PW-1), Ramawadh Pal (PW-5) and other people of the

colony came. At the time of incident, Gulam Mohd. (PW-2) was

on duty and on receiving the news he came to the place of

incident and took Rozi @ Razia, Zeenat Parveen and Javed

Akhtar to Nehru Hospital.

4. On the basis of the report, Ext.P-10, of Rozi @ Razia

Khatoon(PW-4), a case Crime No.0/10 was registered under

Section 302, 307, 450, 394 & 397 IPC at the Police Station

Vindhya Nagar. After receiving the news of the death of

Noorjahan and Javed Akhtar, Shiv Kumar Dubey (PW-13) recorded

the marg intimation of Ext.P-24 & 25 in Police Chauki Jayant,

P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent

to the concerned Police Station, on the basis of which Crime

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No.Ka-0-304/10 was registered at P.S. Baidhan and

investigation was started.

5. Sub-Inspector, J.S. Paraste (PW-12), on the same day,

went at the spot and prepared the inquest memo of the body of

Noorjahan Begum (Ext.P/12).The dead body of Noorjahan Begum

was sent for postmortem examination. After conducting inquest

proceedings in respect of the dead body of Javed Akhtar, the

same was also sent for postmortem examination. Dr. Vinod

Sharma(PW.16) examined the injuries of Razia Khatoon and

Zeenat Parveen and found injuries on their heads. The

injuries, grievous in nature, were dangerous to life.

6. Dr. V.N. Satnami (PW-10) conducted autopsy of the body of

Noorjahan Begum. He found three injuries on her skull, skull

bones were fractured. He submitted his postmortem report-

Ext.P/19. In his opinion, death of the deceased was homicidal

in nature. Dr. V.N. Satnami (PW-10) also conducted autopsy of

body of Javed Akhtar and found two injuries on his head. There

was depressed fracture of skull bone underneath the injuries.

In his opinion, death of the deceased was homicidal in nature.

Postmortem report of Javed Akhtar is Ext.P/20.

7. Anil Upadhyay (PW-11) was the Investigation Officer, who

on the same night apprehended the accused from Khariya Chowk

and recovered Rs.23,020/- from the pocket of his pants. On the

information given by the appellant under Section 27 of the

Indian Evidence Act, he recovered stolen articles, iron hammer

and blood stained clothes from the house of the accused

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situated in N.C.L. Colony. The recovered articles were

identified by Gulam Mohd (PW.2) and Razia Khatoon (PW-4).

8. After due investigation, the chargesheet was filed and

the case was committed for trial. The appellant denied the

guilt and pleaded false implication but he did not adduce any

evidence in his defence.

9. Prosecution examined altogether 16 witnesses and produced

a number of documentary evidence to prove their case. The

Trial court on the appreciation of the evidence held the

accused guilty and convicted and sentenced him for the offence

as mentioned above, which was affirmed by the High Court.

10. Dr. V.N. Satnami (PW-10), who performed the postmortem

examination of the body of Noorjahan Begum found the following

injuries on her body:

“(1)Reddish contusion 5 cm x 4 cm present

on right side of forehead. Red blood clot
was deposited under the skin.

(2)Lacerated wound 5 cm x 3 cm x bone deep

on middle of the forehead posteriorly with
depressed multiple fractures of underlying
bone.

(3) Lacerated wound 4 cm x 3 cm x bone

deep on left occipito parietal region of
head with depressed multiple fractures of
underlying bones.

In his opinion, death of deceased

Noorjahan had occurred as a result of coma
due to head injury. Death was homicidal in
nature. The postmortem examination report
(P/19) was written and signed by him.”

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On the same day, Dr. Satnami (PW-10) performed postmortem

examination of the body of deceased Javed Akhtar and found the

following injuries:

“(1) Lacerated wound on left parietal

region of head 2 cm x 1 cm x bone deep
with peripheral contusions in size of 6 cm
x 5 cm. subcutaneous reddish blood clot
with multiple depressed fractures of
underlying bone.

(2) Reddish contusion on occipital region

of head 5 cm x 4 cm in size with
subcutaneous reddish blood clot with
depressed fracture of underlying bone.

In his opinion, death of Javed Akhtar had

occurred as a result of coma due to
injury. Death was homicidal in nature.”

11. From the inquest memorandums (Ext.P/6 and P/12) and the

evidence of Sub-Inspector, J.S. Paraste (PW-12) and constable

Raj Bahadur Pandey (PW-15), who conducted inquest, it was

established that Noorjahan and Javed Akhtar died of homicidal

injuries found on their bodies.

12. Anil Upadhyay (PW-11), Investigation Officer arrested the

accused from Khariya Chowk, Main Road, P.S. Shakti Nagar in

the presence of witnesses Mohd.Sadiq (PW-6) and Mohd. Yunus

(PW-7) and seized money from him and prepared seizure memo-

Ext.P-15. After arrest the accused was brought to the Police

Station-Jayant and was interrogated in front of the witnesses.

During interrogation accused gave information regarding

jewellery and the hammer which was used in committing crime;

the clothes, hammer and jewellery were seized from the house

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of the accused vide memorandum-Ext.P-13, written by Anil

Upadhyay (PW-11). Anil Upadhyay stated that he went to the

house of accused and seized the jewellery article from

articles-A1 to A 24; seizure memo-Ext.P-14 was prepared. He

had also stated that blood stained clothes and iron hammer

were seized in the presence of witnesses vide seizure memo-

Ext.P-16.

13. Mohd. Sadiq (PW.6) and Mohd. Yunus (PW-7) are the

independent witnesses of the memorandum of seizure. In their

statement they deposed that the Police arrested the accused at

Khariya Chowk in their presence and seized about Rs. 23,000/-

from him and the accused was brought to the Police Station-

Jayant for inquiry. At the Police Station the accused

disclosed about the jewellery, hammer and clothes, on the

basis of which jewellery, hammer and clothes were seized. Both

the witnesses thereby have corroborated the statement of Anil

Upadhyay(PW-11). During the cross-examination both the

witnesses, PW-6 and PW-7 admitted that they visited the house

of Gulam Mohd. There is no infirmity or contradiction in the

statements of the two witnesses.

14. Mohd. Ayaz Khan (PW-9) stated that on 8 th July, 2010 at

the request of the Police he conducted identification of the

jewellery at stadium Baidhan and prior to the identification

Police had handed over other jewellery in a sealed packet. He

mixed it and then conducted the identification and during the

identification Gulam Mohd. and Razia had identified the

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original jewellery. After identification he had handed over

the jewellery in a packet to the Police who were standing

outside the stadium.

15. Zeenat Parween(PW-3) and Razia Khatoon (PW-4), daughters

of deceased Noorjahan and sisters of deceased Javed Akhtar are

the injured eyewitnesses; both of them received serious

injuries at the incident. Both the witness PW-3 and PW-4

clearly stated that sometime before the incident, the accused

had come to their house and he being a prior acquaintance, the

accused had taken refreshment sitting with their mother and

also was talking with her. From the statements of both the

witnesses the facts of the accused coming to their house

before the incident, taking refreshment with deceased

Noorjahan and talking with her are proved, which is also

corroborated from the FIR-Ext.P-10. Both these witnesses have

also stated that in the past the accused used to come for

tuitions and their mother used to treat the accused like her

son and the photograph of the accused was also hanging in

their house. From the aforesaid evidence, it is clear that the

PW-3 and PW-4 were in a position to identify the accused, the

accused was well acquainted with both PW-3 and PW-4 since

long. The prosecution proved beyond reasonable doubt that even

prior to the incident the accused was known to the deceased

and the injured witnesses PW-3 and PW-4 and on the date of

incident also, the accused had come to their house and had

taken refreshments and had talks.

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16. Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) in their

statements clearly stated that initially the accused left

their house and after sometime the accused had come again to

their house. On opening the door he had hit the hammer on the

head of Javed Akhtar, who had come out after hearing screams

of Zeenat Parveen and then after entering into the bedroom he

hit deceased Noorjahan on her head. From the statement of

Razia Khatoon (PW-4), it is also clear that the accused after

entering the store-room had hit on her head and then the

accused had taken out the money and jewellery from the

almirah, suitcase, box and attaché, etc. In paragraph 7 Zeenat

Parveen (PW-3), has also stated that she had seen the accused

hit Javed Akhtar on his head but she could not see as to who

hit Razia and her mother. Such statement cannot be stated to

be contradiction and does not adversely affect the case of the

prosecution in view of the deposition made by Razia

Khatoon(PW-4).

17. Similarly, from the statement of Razia Khatoon (PW-4),

we find that the accused after hitting Zeenat Parveen, Javed

Akhtar and Noorjahan took away jewellery, cash amount and the

bangles of Noorjahan and then he ran away after bolting the

door from outside.

18. PW-4 further deposed that after the accused run away by

bolting the door from outside she went into the balcony and

stop Satnami (PW-1), who at that time had taken out his

vehicle and was going somewhere. Then, the door was got open.

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Statements of Razia Khatoon (PW-4) about shouting from the

balcony stopping Satnami (PW-1) and then opening of the door

by Satnami are also proved by the statement of Ramesh Satnami

(PW-1), who made similar statement.

19. In view of the statements made by the injured witnesses

Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) as corroborated

by the postmortem report, seizure of jewellery, hammer, blood

stained clothes (Ex.P-13)and statement of Anil Upadhyay (PW-

11), as corroborated by Sadiq (PW-6) and Yunus (PW-7), the

Trial Court rightly held the accused guilty for the offences

u/s 302, 307, 394 r/w 397 and 450 IPC.

20. First ground taken by the learned counsel for the

appellant with respect to denial of opportunity to the accused

to be defended by a counsel of his choice is incorrect as from

the record we find that proper opportunity was given to the

accused.

21. The order sheets of the Trial Court dated 25 th September,

2010 shows that the appellant made an application that

appellant wanted to get the witnesses cross-examined by senior

Advocate, Mr. Rajendra Singh Chauhan, therefore, he requested

to defer the cross-examination of the witnesses. The Trial

court rejected the application. On 27th September, 2010,

counsel of the accused, Mr. Amrendra Singh, who was defending

the accused, refused to defend him. The Trial Court then

appointed one Mr. G.P. Dwivedi, Advocate, as defence counsel

on State expenses.

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22. On perusal of records it transpires that Shri Amrendra

Singh, Advocate had filed his Vakalatnama for representing the

appellant. On 25th September, 2010, when the case was fixed for

evidence though he was competent to cross-examine the

witnesses but he moved the application to defer the cross-

examination of the witnesses on the ground that the accused

wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan.

However, neither Rajendra Singh Chauhan was present nor any

Vakalatnama was filed on his behalf. On that day, two

witnesses, namely Ramesh Satnami (PW-1) and Gulam Mohd. (PW-2)

were examined and Mr. Amrendra Singh, Advocate had cross-

examined those witnesses. None of those witnesses were

eyewitnesses; in fact one of them, Ramesh Satnami (PW-1) was

declared hostile. On 27th September, 2010, Mr. Amrendra Singh

refused to appear on behalf of the appellant, when the

appellant on asking expressed his inability to appoint any

counsel. Since there was none to represent the accused, the

Trial Court appointed Mr. G.P. Dwivedi, Advocate, to pursue

the appeal. The appellant has failed to show that Mr. G.P.

Dwivedi was not competent or was incapable of handling the

case. On the contrary from the cross-examination of the

witnesses made by Mr. G.P. Dwivedi we find that he was

competent to deal with the case. Even on the next date

neither Mr. Rajendra Singh Chauhan, Advocate appeared nor he

filed his Vakalatnama.

23. The next question is whether death sentence awarded to

the appellant is excessive, disproportionate on the facts and

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circumstance of the case, i.e. whether the present case can be

termed to be a rarest of the rare case.

24. Guidelines emerged from Bachan Singh vs. State of Punjab,

1980 (2) SCC 684 were noticed by this Court in Machhi Singh

and others vs. State of Punjab, 1983 (3) SCC 470. In the said

case the Court observed:

38. In this background the guidelines

indicated in Bachan Singh case, 1980 (2)
SCC 684 will have to be culled out and
applied to the facts of each individual
case where the question of imposing of
death sentence arises. The following
propositions emerge from Bachan Singh
case(supra):
“(i) The extreme penalty of death need
not be inflicted except in gravest cases
of extreme culpability.
(ii) Before opting for the death penalty
the circumstances of the ‘offender’ also
require to be taken into consideration
along with the circumstances of the
‘crime’.
(iii) Life imprisonment is the rule and
death sentence is an exception. In other
words death sentence must be imposed only
when life imprisonment appears to be an
altogether inadequate punishment having
regard to the relevant circumstances of
the crime, and provided, and only
provided, the option to impose sentence of
imprisonment for life cannot be
conscientiously exercised having regard to
the nature and circumstances of the crime
and all the relevant circumstances.
(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.

39. In order to apply these guidelines

inter alia the following questions may be
asked and answered:

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(a) Is there something uncommon about

the crime which renders sentence of
imprisonment for life inadequate and calls
for a death sentence?
(b) Are the circumstances of the crime
such that there is no alternative but to
impose death sentence even after according
maximum weightage to the mitigating
circumstances which speak in favour of the
offender?

40. If upon taking an overall global

view of all the circumstances in the light
of the aforesaid proposition and taking
into account the answers to the questions
posed hereinabove, the circumstances of
the case are such that death sentence is
warranted, the court would proceed to do
so.”

25. In Ronny alias Ronald James Alwaris and others vs. State

of Maharashtra, 1998 (3) SCC 625, this Court held:

“45. These principles have been applied

in various judgments of this Court
thereafter and it is unnecessary to
multiply the cases here. Whether the case
is one of the rarest of the rare cases is
a question which has to be determined on
the facts of each case. Suffice it to
mention that the choice of the death
sentence has to be made only in the rarest
of the rare cases and that where
culpability of the accused has assumed
depravity or where the accused is found to
be an ardent criminal and menace to the
society and; where the crime is committed
in an organised manner and is gruesome,
cold-blooded, heinous and atrocious; where
innocent and unarmed persons are attacked
and murdered without any provocation, the
case would present special reason for
purposes of sub-section (3) of Section 354
of the Criminal Procedure Code.”

In Rony alias Ronald James Alwaris (supra) this Court

noted the law laid-down by this Court in Allauddin Mian & Ors.

Vs. State of Bihar, (1989) 3 SCC 5, that unless the nature of

the crime and circumstances of the offender reveal that

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criminal is a menace to the society and the sentence of life

imprisonment would be altogether inadequate, the Court should

ordinarily pass a lesser punishment and not punishment of

death which should be reserved for exceptional case only.

Considering the cumulative effect of all the factors, like the

offences committed under the influence of extreme mental or

emotional disturbance, the young age of the accused, the

possibility of reform and rehabilitation, etc. the Court may

convert the sentence into life imprisonment.

26. In State of Maharashtra vs. Goraksha Ambaji Adsul, 2011

(7) SCC 437, this Court made the following observation:

“30. The principles governing the sentencing

policy in our criminal jurisprudence have more
or less been consistent, right from the
pronouncement of the Constitution Bench
judgment of this Court in Bachan Singh v. State
of Punjab,(2010) 8 SCC 775. Awarding punishment
is certainly an onerous function in the
dispensation of criminal justice. The court is
expected to keep in mind the facts and
circumstances of a case, the principles of law
governing award of sentence, the legislative
intent of special or general statute raised in
the case and the impact of awarding punishment.
These are the nuances which need to be examined
by the court with discernment and in depth.

31. The legislative intent behind enacting

Section 354(3) CrPC clearly demonstrates the
concern of the legislature for taking away a
human life and imposing death penalty upon the
accused. Concern for the dignity of the human
life postulates resistance to taking a life
through law’s instrumentalities and that ought
not to be done, save in the rarest of rare
cases, unless the alternative option is
unquestionably foreclosed. In exercise of its
discretion, the court would also take into
consideration the mitigating circumstances and
their resultant effects.

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32. The language of Section 354(3)

demonstrates the legislative concern and the
conditions which need to be satisfied prior to
imposition of death penalty. The words, “in the
case of sentence of death, the special reasons
for such sentence” unambiguously demonstrate
the command of the legislature that such
reasons have to be recorded for imposing the
punishment of death sentence. This is how the
concept of the rarest of rare cases has emerged
in law. Viewed from that angle, both the
legislative provisions and judicial
pronouncements are at ad idem in law. The death
penalty should be imposed in the rarest of rare
cases and that too for special reasons to be
recorded. To put it simply, a death sentence is
not a rule but an exception. Even the exception
must satisfy the prerequisites contemplated
under Section 354(3) CrPC in light of the
dictum of the Court in Bachan Singh(supra).

33. The Constitution Bench judgment of this

Court in Bachan Singh (supra) has been
summarised in para 38 in Machhi Singh v. State
of Punjab, (1998) 1 SCC 149, and the following
guidelines have been stated while considering
the possibility of awarding sentence of death:
(Machhi Singh case(supra), SCC p. 489)
“(i) The extreme penalty of death need not be
inflicted except in gravest cases of extreme
culpability.
(ii) Before opting for the death penalty the
circumstances of the ‘offender’ also requires
to be taken into consideration along with the
circumstances of the ‘crime’.
(iii) Life imprisonment is the rule and death
sentence is an exception. … death sentence must
be imposed only when life imprisonment appears
to be an altogether inadequate punishment
having regard to the relevant circumstances of
the crime, and provided, and only provided the
option to impose sentence of imprisonment for
life cannot be conscientiously exercised having
regard to the nature and circumstances of the
crime and all the relevant circumstances.
(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.”
(emphasis supplied)

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34. The judgment in Bachan Sing(supra), did

not only state the above guidelines in some
elaboration, but also specified the mitigating
circumstances which could be considered by the
Court while determining such serious issues and
they are as follows: (SCC p. 750, para 206)
“206. … ‘Mitigating circumstances.—In the
exercise of its discretion in the above cases,
the court shall take into account the following
circumstances:
(1) That the offence was committed under the
influence of extreme mental or emotional
disturbance.
(2) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death.
(3) The probability that the accused would
not commit criminal acts of violence as would
constitute a continuing threat to society.
(4) The probability that the accused can be
reformed and rehabilitated.
The State shall by evidence prove that the
accused does not satisfy Conditions (3) and (4)
above.
(5) That in the facts and circumstances of
the case the accused believed that he was
morally justified in committing the offence.
(6) That the accused acted under the duress
or domination of another person.
(7) That the condition of the accused showed
that he was mentally defective and that the
said defect impaired his capacity to appreciate
the criminality of his conduct.’”

35. Now, we may examine certain illustrations

arising from the judicial pronouncements of
this Court.

36. In D.K. Basu v. State of W.B.,(2002) 1

SCC 351, this Court took the view that
custodial torture and consequential death in
custody was an offence which fell in the
category of the rarest of rare cases. While
specifying the reasons in support of such
decision, the Court awarded death penalty in
that case.

37. In Santosh Kumar Satishbhushan Bariyar v.

State of Maharashtra, (1972) 2 SCC 640, this
Court also spelt out in paras 56 to 58 that
nature, motive, impact of a crime, culpability,
quality of evidence, socio-economic
circumstances, impossibility of rehabilitation
are the factors which the court may take into

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consideration while dealing with such cases. In

that case the friends of the victim had called
him to see a movie and after seeing the movie,
a ransom call was made, but with the fear of
being caught, they murdered the victim. The
Court felt that there was no evidence to show
that the criminals were incapable of reforming
themselves, that it was not a rarest of the
rare case, and therefore, declined to award
death sentence to the accused.

38. Interpersonal circumstances prevailing

between the deceased and the accused was also
held to be a relevant consideration in Vashram
Narshibhai Rajpara v. State of Gujarat, (1996)
8 SCC 167, where constant nagging by family
was treated as the mitigating factor, if the
accused is mentally unbalanced and as a result
murders the family members. Similarly, the
intensity of bitterness which prevailed and the
escalation of simmering thoughts into a thirst
for revenge and retaliation were also
considered to be a relevant factor by this
Court in different cases.

39. This Court in Satishbhushan Bariya

(supra) also considered various doctrines,
principles and factors which would be
considered by the Courts while dealing with
such cases. The Court discussed in some
elaboration the applicability of the doctrine
of rehabilitation and the doctrine of prudence.
While considering the application of the
doctrine of rehabilitation and the extent of
weightage to be given to the mitigating
circumstances, it noticed the nature of the
evidence and the background of the accused. The
conviction in that case was entirely based upon
the statement of the approver and was a case
purely of circumstantial evidence. Thus,
applying the doctrine of prudence, it noticed
the fact that the accused were unemployed,
young men in search of job and they were not
criminals. In execution of a plan proposed by
the appellant and accepted by others, they
kidnapped a friend of theirs. The kidnapping
was done with the motive of procuring ransom
from his family but later they murdered him
because of the fear of getting caught, and
later cut the body into pieces and disposed it
off at different places. One of the accused had
turned approver and as already noticed, the
conviction was primarily based upon the
statement of the approver.”

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“41. The above principle, as supported by

case illustrations, clearly depicts the various
precepts which would govern the exercise of
judicial discretion by the courts within the
parameters spelt out under Section 354(3) CrPC.
Awarding of death sentence amounts to taking
away the life of an individual, which is the
most valuable right available, whether viewed
from the constitutional point of view or from
the human rights point of view. The condition
of providing special reasons for awarding death
penalty is not to be construed linguistically
but it is to satisfy the basic features of a
reasoning supporting and making award of death
penalty unquestionable. The circumstances and
the manner of committing the crime should be
such that it pricks the judicial conscience of
the court to the extent that the only and
inevitable conclusion should be awarding of
death penalty.”

27. This Court in Ramnaresh and others vs. State of

Chattisgarh, 2012 (4) SCC 257, noticed the aggravating and

mitigating circumstances with respect to a crime and held as

follows:

“76. The law enunciated by this Court in

its recent judgments, as already noticed,
adds and elaborates the principles that
were stated in Bachan Singh,(1980) 2 SCC
684, and thereafter, in Machhi Singh,
(1983) 3 SCC 470. The aforesaid judgments,
primarily dissect these principles into
two different compartments—one being the
“aggravating circumstances” while the
other being the “mitigating
circumstances”. The court would consider
the cumulative effect of both these
aspects and normally, it may not be very
appropriate for the court to decide the
most significant aspect of sentencing
policy with reference to one of the
classes under any of the following heads
while completely ignoring other classes
under other heads. To balance the two is
the primary duty of the court. It will be
appropriate for the court to come to a
final conclusion upon balancing the
exercise that would help to administer the
criminal justice system better and provide

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an effective and meaningful reasoning by

the court as contemplated under Section
354(3) CrPC.

Aggravating circumstances
(1) The offences relating to the
commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by
the accused with a prior record of
conviction for capital felony or offences
committed by the person having a
substantial history of serious assaults
and criminal convictions.
(2) The offence was committed while the
offender was engaged in the commission of
another serious offence.
(3) The offence was committed with the
intention to create a fear psychosis in
the public at large and was committed in a
public place by a weapon or device which
clearly could be hazardous to the life of
more than one person.
(4) The offence of murder was committed
for ransom or like offences to receive
money or monetary benefits.
(5) Hired killings.
(6) The offence was committed
outrageously for want only while involving
inhumane treatment and torture to the
victim.
(7) The offence was committed by a
person while in lawful custody.
(8) The murder or the offence was
committed to prevent a person lawfully
carrying out his duty like arrest or
custody in a place of lawful confinement
of himself or another. For instance,
murder is of a person who had acted in
lawful discharge of his duty under Section
43 CrPC.
(9) When the crime is enormous in
proportion like making an attempt of
murder of the entire family or members of
a particular community.
(10) When the victim is innocent,
helpless or a person relies upon the trust
of relationship and social norms, like a
child, helpless woman, a daughter or a
niece staying with a father/uncle and is
inflicted with the crime by such a trusted
person.
(11) When murder is committed for a
motive which evidences total depravity and
meanness.

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(12) When there is a cold-blooded murder

without provocation.
(13) The crime is committed so brutally
that it pricks or shocks not only the
judicial conscience but even the
conscience of the society.

Mitigating circumstances
(1) The manner and circumstances in and
under which the offence was committed, for
example, extreme mental or emotional
disturbance or extreme provocation in
contradistinction to all these situations
in normal course.
(2) The age of the accused is a relevant
consideration but not a determinative
factor by itself.

(3) The chances of the accused of not

indulging in commission of the crime again
and the probability of the accused being
reformed and rehabilitated.
(4) The condition of the accused shows
that he was mentally defective and the
defect impaired his capacity to appreciate
the circumstances of his criminal conduct.
(5) The circumstances which, in normal
course of life, would render such a
behaviour possible and could have the
effect of giving rise to mental imbalance
in that given situation like persistent
harassment or, in fact, leading to such a
peak of human behaviour that, in the facts
and circumstances of the case, the accused
believed that he was morally justified in
committing the offence.
(6) Where the court upon proper
appreciation of evidence is of the view
that the crime was not committed in a
preordained manner and that the death
resulted in the course of commission of
another crime and that there was a
possibility of it being construed as
consequences to the commission of the
primary crime.
(7) Where it is absolutely unsafe to
rely upon the testimony of a sole
eyewitness though the prosecution has
brought home the guilt of the accused.

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While determining the questions relating to sentencing

policy, the Court laid down the Principles at paragraph 77

which reads as follows:

“77. While determining the questions

relatable to sentencing policy, the court
has to follow certain principles and those
principles are the loadstar besides the
above considerations in imposition or
otherwise of the death sentence.
Principles
(1) The court has to apply the test to
determine, if it was the “rarest of rare”
case for imposition of a death sentence.
(2) In the opinion of the court,
imposition of any other punishment i.e.
life imprisonment would be completely
inadequate and would not meet the ends of
justice.
(3) Life imprisonment is the rule and
death sentence is an exception.
(4) The option to impose sentence of
imprisonment for life cannot be cautiously
exercised having regard to the nature and
circumstances of the crime and all
relevant considerations.
(5) The method (planned or otherwise)
and the manner (extent of brutality and
inhumanity, etc.) in which the crime was
committed and the circumstances leading to
commission of such heinous crime.”

28. Recently, this Court in Shankar Kisanrao Khade vs. State

of Maharashtra, 2013 (5) SCC 546, dealing with a case of death

sentence, observed:

“52. Aggravating circumstances as

pointed out above, of course, are not
exhaustive so also the mitigating
circumstances. In my considered view, the
tests that we have to apply, while
awarding death sentence are “crime test”,
“criminal test” and the “R-R test” and not
the “balancing test”. To award death
sentence, the “crime test” has to be fully
satisfied, that is, 100% and “criminal
test” 0%, that is, no mitigating
circumstance favouring the accused. If

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there is any circumstance favouring the

accused, like lack of intention to commit
the crime, possibility of reformation,
young age of the accused, not a menace to
the society, no previous track record,
etc. the “criminal test” may favour the
accused to avoid the capital punishment.
Even if both the tests are satisfied, that
is, the aggravating circumstances to the
fullest extent and no mitigating
circumstances favouring the accused, still
we have to apply finally the rarest of the
rare case test (R-R test). R-R test
depends upon the perception of the society
that is “society-centric” and not “Judge-
centric”, that is, whether the society
will approve the awarding of death
sentence to certain types of crimes or
not. While applying that test, the court
has to look into variety of factors like
society’s abhorrence, extreme indignation
and antipathy to certain types of crimes
like sexual assault and murder of
intellectually challenged minor girls,
suffering from physical disability, old
and infirm women with those disabilities,
etc. Examples are only illustrative and
not exhaustive. The courts award death
sentence since situation demands so, due
to constitutional compulsion, reflected by
the will of the people and not the will of
the Judges.”

29. In the present case the appellant is an educated person,

he was about 26 years old at the time of committing the

offence. The accused was a tutor in the family of the

deceased-Noorjahan. He was in acquaintance with the deceased

as well as Zeenat Parveen (PW-3) and Razia Khatoon (PW-4).

There is nothing specific to suggest the motive for committing

the crime except the articles and cash taken away by the

accused. It is not the case of the prosecution that the

appellant cannot be reformed or that the accused is a social

menace. Apart from the incident in question there is no

criminal antecedent of the appellant. It is true that the

accused has committed a heinous crime, but it cannot be held

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with certainty that this case falls in the “rarest of the rare

category”. On appreciation of evidence on record and keeping

in mind the facts and circumstances of the case, we are of the

view that sentence of death penalty would be extensive and

unduly harsh.

30. Accordingly, we commute the death sentence of appellant

to life imprisonment. The conviction and rest part of the

sentence are affirmed. Appeals are partly allowed.

………………………………………………J.
(H.L. DATTU)

……….……………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.
(M.Y. EQBAL)

NEW DELHI,
JULY 3, 2014.

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