The grand policy
Santosh Kumar Satishbhushan Bariyar vs. the State of Maharashtra (2009) 6 SCC 498, Apex Court held the nature, motive, and impact of crime, culpability, quality of evidence, socioeconomic circumstances, impossibility of rehabilitation and some of the factors, the Court may take into consideration while dealing with such cases.
Factors influencing punishment
The enormity of the Crime and execution thereof (Crime Test)
Previous Criminal Record of the Accused
Possibility of reformation
The danger to the society
DEATH PENALTY AWARDED
In Bachan Singh, two issues came up for consideration before the Constitution Bench. The first issue related to the constitutional validity of the death penalty for murder as provided in Section 302 of the IPC and the second related to “the sentencing procedure embodied in subsection (3)of Section 354 of the Code of Criminal Procedure, 1973. in Swamy Shraddananda apex Court went so far as to note in paragraph 48 of the Report that in attempting to standardize and categorize crimes, Machhi Singh “considerably enlarged the scope for imposing death penalty” that was greatly restricted by Bachan Singh.
Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review. In other words the “balancing test” is not the correct test in deciding whether capital punishment be awarded or not.
Nathu Garam v. State of Uttar Pradesh [(1979 ) 3 SCC 366]
This Court in that case upheld the death sentence awarded by the trial Court, confirmed by the High Court, for causing death of a 14 year old girl by a person aged 28 years after luring her into the house for committing criminal assault. Judgment was delivered prior to Bachan Singh (supra), therefore, the mitigating circumstances concerning the criminal were not seen addressed. Stress was more on “crime test”.
Jumman Khan v. State of Uttar Pradesh [(1991) 1 SCC 752]
This Court, in this case, was hearing a writ petition moved by a convict, not to extend the death sentence. Writ Petition was dismissed after referring to the order passed by this Court in S.L.P. (Criminal) No. 558 of 1986, confirming the death sentence, noticing the degree of criminality and the reprehensive and gruesome manner the crime was committed on a six-year-old child. “Criminal test” is not prima facie seen satisfied, but only the “crime test
Dhananjoy Chatterjee v. State of West Bengal [(1994) 2 SCC 220]
This Court dealt with a case of rape and murder of a young girl of about 18 years. The Court opined that a real and abiding concern for the dignity of human life is required to be kept in mind by courts while considering the confirmation of the sentence of death but a cold-blooded and pre-planned murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years exists in a rarest of rare cases which calls for no punishment other than capital punishment.
Laxman Naik v. State of Orissa [(1994) 3 SCC 381]
This Court again confirmed the death sentence on an accused for the offence of rape followed by murder of 7-year-old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. After satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family members and others, the accused with a view to screen the evidence of the crime, put an end to the life of that innocent girl. The Court noticed how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting no punishment other than capital punishment.
Both the tests “crime test” and “criminal test”, it is seen, have been satisfied against the accused for awarding capital punishment
Kamta Tiwari v. State of M.P. [(1996) 6 SCC 250]
Apex Court dealt with a case of rape followed by murder of a 7 year old girl. Evidence disclosed that the accused was close to the family of the father of the deceased and the deceased used to call him “uncle”. This Court noticed the closeness to the accused and the accused encouraged her to go to the grocery shop where the girl was kidnapped by him and was subjected to rape and later strangulated to death throwing the dead body in a well. Court was giving thrust on crime test rather than criminal test against the accused
Molai and another v. State of M.P. [(1999) 9 SCC 581]
A three-Judge Bench of this Court justified death sentence in a case where a 16 year old girl, preparing for her Tenth Standard Examination was raped and strangulated to death. The Court noticed the gruesome manner in which rape was committed and the way in which she was strangulated to death and the dead body was immersed in the septic tank.
The three-Judge Bench, it is seen, has applied both the tests Crime test as well as the Criminal test and found that the case falls in the category of rarest of rare cases.
Bantu v. State of Uttar Pradesh [(2008) 11 SCC 113]
This Court confirmed death sentence in a case where a minor girl of 5 years was raped and murdered. This Court, following the principles laid down in Bachan Singh, pointed out that when the victim of the murder is an innocent child or a helpless woman or old or infirm personor a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, it is a vital factor justifying award of capital punishment. In this judgment also, this Court stressed on drawing of a balance sheet of mitigating and aggravating circumstances, following the judgment in Devender Pal Singh v. Government of NCT of Delhi (2002) 5 SCC 234.
Court was applying the “balancing test”, to award capital sentence.
Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra [(2008) 15 SCC 269]
This was a case where the accused, a married man having three children, was known to the family of the deceased. The Court noticed the horrendous manner in which the girl aged 9 years was done to death after ravishing her. The Court awarded capital punishment. The Court, in this case, took the view that mitigating and aggravating circumstances have to be balanced. Here also the test applied was the “balancing test” to award capital punishment.
Mohd. Mannan @ Abdul Mannan v. State of Bihar [(2011) 5 SCC 317]
This was a case where a minor girl aged 7 years was kidnapped, raped and murdered. Court noticed how the accused had won the trust of that innocent girl and the gruesome manner in which she was subjected to rape and then strangulated her to death. The accused was aged 42-43 years. The Court held that he would be a menace to society and would continue to be so and could not be reformed. The Court awarded death sentence. The Court, in this case, held that a balance sheet is to be prepared while considering the imposition of death sentence. Here also the test applied was “balancing test” to award
B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3SCC 85
A case where the convict was found guilty of rape, murder and robbery. The crime was carried out in a depraved and merciless manner. Two days after the incident, the local public caught him while he was attempting to escape from a house where he made a similar attempt to roband assault a lady. There was nothing in law to show that the convict was guilty of the second offence in as much as no trial was held. There were some recoveries from his house, which indicated that the convict had committed crimes in other premises also. Again, there was nothing in law to show that he was found guilty of those crimes. On these facts, despite the guilt of the criminal not having been established in any other case, the convict was found incapable of rehabilitation and the death sentence awarded to him was confirmed.
Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
This was a case of rape and murder of a 3 years old child by a married man of 31 years. Court noticed the brutal manner in which the crime was committed and the pain and agony undergone by the minor girl. The Court confirmed the death sentence awarded. The Court elaborately discussed when the aggravating and mitigating circumstances to be taken note of before awarding sentence and what are the principles to be followed, while awarding death sentence.
CASES IN WHICH DEATH PENALTY COMMUTED
Kumudi Lal v. State of U.P. [(1994) 4 SCC 108]
It was a case where a 14 year girl was raped and killed by strangulation. The Court accepted the brutality of the crime, however commuted death penalty to life imprisonment. The Court noticed that the evidence did not indicate the girl was absolutely unwilling but rather showed that she initially permitted the accused to take some liberties with her but later expressed her unwillingness. Treating the same as a mitigating factor, death sentence was commuted to that of life imprisonment. ‘Criminal test’ was applied and was found not fully
Criminal test’ was applied and was found not fully satisfied since some mitigating circumstances were found to be in favour of the accused so as to avoid death sentence.
Raju v. State of Haryana [(2001) 9 SCC 50]
This Court commuted death sentence to life imprisonment in a case where a girl of 11 years was raped and murdered. Court noticed that the accused had no intention to murder her, but on the spur of the moment, without any premeditation, he gave two brick blows which caused the death. Further, it was also found that the accused had no previous criminal record or would be a threat to the society. ‘Criminal test’ was applied and found not fully satisfied some mitigating circumstances were found to be in favour of the accused so as to avoid death sentence.
Bantu alias Naresh Giri v. State of M.P. [(2001) 9 SCC 615]
This Court commuted death sentence to that of life imprisonment in a case where a girl of 6 years was raped and murdered by a boy of less than 22 years. Though, this Court found that the act was heinous and required to be condemned, but it could not be said to be one of the rarest of rare category. The accused did not require to be eliminated from the society. ‘Criminal test’ was applied and found some circumstances favouring the accused so as to avoid death sentence.
State of Maharashtra v. Suresh [(2000) 1 SCC 471]
This Court in that case commuted the death sentence to life imprisonment where a girl of 4 years old was raped and murdered. Though this Court felt that the case was perilously near the region of rarest of the rare cases, but refrained from imposing extreme penalty.
“Criminal test” was applied and narrowly escaped death sentence.
Amit v. State of Maharashtra [(2003) 8 SCC 93]
This Court commuted death sentence to life imprisonment in a case where the accused aged 28 years had raped and murdered a girl of 11-12 years. This Court noticed that the accused had no previous criminal track record and also there was no evidence that he would be a danger to the society in future. “Criminal test” was applied, absence of previous track record and danger to the society were considered to avoid death sentence.
Surendra Pal Shivbalak v. State of Gujarat [(2005) 3 SCC 127]
This Court commuted death sentence to that of life imprisonment in a case where the accused aged 36 years had committed rape and murder of a minor girl. This Court noticed at the time of occurrence, the accused had no previous criminal record and held would not be a menace to the society in future. “Criminal test” was applied and absence of previous record was considered as a circumstance to avoid death sentence.
Amrit Singh v. State of Punjab [AIR 2007 SC 132]
This Court commuted death sentence to that of life imprisonment in a case, where a 7-8 years old girl was raped and murdered by the accused aged 31 years. The Court noticed the manner in which the deceased was raped, it was brutal, but held it could have been a
momentary lapse on the part of the accused, seeing a lonely girl at a secluded place and there was no pre-meditation for commission of the crime. “Criminal test” it is seen, has been applied in favour of the accused to avoid death sentence.
Rameshbhai Chandubhai Rathod v. The State of Gujarat [(2011) 2 SCC 764]
This Court commuted death sentence to life imprisonment of the accused committing rape and murder of a girl of 8 years. It was noticed that the accused at the time of the commission of crime was 27 years and possibility of reformation could not be ruled out. “Criminal test” was applied considering the age of the accused and possibility of reformation saved the accused from death penalty.
Sangeeta & Ors v. State of Haryana (2013) 2 SCC 452
“Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences – whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment, in cases such as the present is not unquestionably foreclosed. More so when, in this case, there is no evidence(contrary to the conclusion of the High Court) that Seema’s body was burnt by Sandeep from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape. There is also no evidence (again contrary to the conclusion of the High Court) that Narender was a professional killer.
Therefore, we allow these appeals to the extent that the death penalty awarded to the appellants is converted into a sentence of life imprisonment, subject to what we have said above”
“In my considered view that the tests that we have to apply, while awarding death sentence, are “crime test”, “criminal test” and the R-R Test and not “balancing 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 minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.. Examples are only illustrative and not exhaustive. 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.
Consecutive sentence cases
Ronny v. State of Maharashtra, (1998) 3 SCC 625
is also among the earliest cases in the recent past where consecutive sentences were awarded. The three accused, aged about 35 years (two of them) and 25/27 years had committed three murders and a gang rape. This Court converted the death sentence of all three to imprisonment for life since it was not possible to identify whose case would fall in the category of “rarest of rare” cases. However, after awarding a sentence of life
imprisonment, this Court directed that they would all undergo.
Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148
is perhaps among the earliest cases where consecutive sentences were awarded. This was not a case of rape and murder but one of causing a dowry death of his pregnant wife. It was held that it was not the “rarest of rare” cases “because dowry death has ceased to belong to that species of killing.” The death sentence was, therefore, not upheld. Since the accused had attempted to cause disappearance of the evidence by severing the head and cutting the body into nine pieces, thisCourt directed that he should undergo the sentence for that crime after serving out his life sentence
In Sandesh v. State of Maharashtra, (2013) 2 SCC 479
Apex Court converted the death penalty awarded to the accused to imprisonment for life, inter alia, for the rape of a pregnant lady, attempted murder and the murder of her mother in law to imprisonment for life with a further direction that all the sentences were to run consecutively
In Sanaullah Khan v. State of Bihar, MANU/SC/0165/2013
the death sentence awarded to the accused for the murder of three persons was converted by this Court to imprisonment for life for each of the three murders and further the sentences were directed to run consecutively
Minimum fixed-term sentences
Subhash Chander v. Krishan Lal, (2001) 4 SCC 458
it was held that the convict shall remain in prison “for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions
Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 and Ram Anup Singh v. State of Bihar, (2002) 6 SCC 686
the convict was directed to serve out at least 20 years of imprisonment
Mohd. Munna v. Union of India, (2005) 7 SCC 417
the convict had undergone 21 years of incarceration. This Court held that he was not entitled to release as a matter of course but was required to serve out his sentence till the remainder of his life subject to remissions by the appropriate authority or State Government.
Sebastian v. State of Kerala, (2010) 1 SCC 58
was a case of a 24 year old extremely violent pedophile accused of raping a two-year old child and then murdering her. While commuting the death sentence, this Court held that he should remain in jail for the rest of his life in terms of Swamy Shraddananda case
Sandeep v. State of U.P., (2012) 6 SCC 107
the death sentence awarded to the convict for the murder of his pregnant friend and pouring acid on her head was converted to sentence of life for a minimum period of 30 years without any remission before his case could be considered for premature release.
Gurvail Singh v. State of Punjab, (2013) 2 SCC 713
death sentence was converted to imprisonment for life with the requirement that the convict spends a minimum of thirty years in jail without remission