RAJENDRA PRALHADRAO WASNIK versus STATE OF MAHARASHTRA

RAJENDRA PRALHADRAO WASNIK

STATE OF MAHARASHTRA

(Review Petition (Criminal) Nos. 306-307 of 2013)

(Criminal Appeal Nos. 145-146 of 2011)

DECEMBER 12, 2018

[MADAN B. LOKUR, S. ABDUL NAZEER AND

DEEPAK GUPTA, JJ.]

Administration of Criminal Justice – Capital Punishment –Factors to be considered – Appellant convicted for the rape andmurder of 3 year old girl – Conviction as also capital punishmentawarded to the appellant was confirmed by the High Court – Appealsfiled by the appellant before Supreme Court – Dismissed – ReviewPetitions also dismissed – However, review petitions restored inview of Constitution Bench decision of Supreme Court in Mohd.Arif alias Ashfaq case – Held: Ordinarily, it would not be advisableto award capital punishment in case of circumstantial evidence –But there is no hard and fast rule that death sentence should not beawarded in case of circumstantial evidence – If the court hassome doubt, on the circumstantial evidence on record, that theaccused might not have committed the offence, then case foracquittal would be made out – If the court is inclined to award thedeath penalty then there must be some exceptional circumstanceswarranting the imposition of the extreme penalty – In the instantcase, samples were taken from the body of the accused and sent forDNA profiling, however, the result was not produced before the trialcourt – There is no explanation for this – In the absence of anyjustification for not producing the DNA evidence, it would bedangerous, on the facts of this case, to uphold the sentence of deathof the appellant – Further, probability (not possibility orimprobability or impossibility) that convict can be reformed andrehabilitated in society must be seriously considered by the courtsbefore awarding the death sentence – It is the obligation on theprosecution to prove, through evidence, that the probability is that

Athe convict cannot be reformed or rehabilitated – For the purposesof sentencing, the Sessions Judge, the High Court as well as SupremeCourt did not take into consideration the probability of reformation,rehabilitation and social re-integration of the appellant into society– Further, trial court was also in error in taking into consideration,for the purposes of sentencing, the pendency of two similar casesBagainst the appellant which it could not, in law, consider – However,looking to the crimes committed by the appellant and the materialon record including his overall personality and subsequent events,the sentence of death awarded to the appellant is commuted but theappellant should not be released from custody for the rest of hisCnormal life – Penal Code, 1860– ss.376(2)(f), 377 and 302–Evidence Act, 1872 – s.54 – CrPC, 1973 – s.354.

Evidence – DNA – Forensic science – Importance of – Held:DNA profiling is an extremely accurate way of comparing specimensand such testing can make virtually positive identification – WhereDDNA profiling has not been done or it is held back from the TrialCourt, an adverse consequence would follow for the prosecution –Cr.P.C., 1973 – ss.53-A, 164-A.

Sentence/Sentencing – Prior history of the convict or criminalantecedents – If to be considered – Held: Mere pendency of one orEmore criminal cases against convict cannot be factor forconsideration while awarding sentence – Not only is it statutorilyimpermissible (except in some cases) but even otherwise it violatesthe fundamental presumption of innocence – human right - thateveryone is entitled to.

FDisposing of the review petitions, the Court

HELD: 1.1 Ordinarily, it would not be advisable to awardcapital punishment in case of circumstantial evidence. But thereis no hard and fast rule that death sentence should not be awardedin case of circumstantial evidence. The precautions that mustGbe taken by all the courts in cases of circumstantial evidence isthis: if the court has some doubt, on the circumstantial evidenceon record, that the accused might not have committed the offence,then case for acquittal would be made out; if the court has nodoubt, on the circumstantial evidence, that the accused is guilty,

then of course conviction must follow. If the court is inclined toaward the death penalty then there must be some exceptionalcircumstances warranting the imposition of the extreme penalty.Even in such cases, the court must follow the dictum laid down inBachan Singh that it is not only the crime, but also the criminalthat must be kept in mind and any alternative option ofpunishment is unquestionably foreclosed. The reason for thesecond precaution is that the death sentence, upon execution, isirrevocable and irretrievable. [Para 29][606-C-F]

Reform, rehabilitation and re-integration into society

1.2 The probability (not possibility or improbability orimpossibility) that convict can be reformed and rehabilitated insociety must be seriously and earnestly considered by the courtsbefore awarding the death sentence. This is one of the mandatesof the “special reasons” requirement of Section 354(3) of theCr.P.C. and ought not to be taken lightly since it involves snuffingout the life of person. To effectuate this mandate, it is theobligation on the prosecution to prove to the court, throughevidence, that the probability is that the convict cannot bereformed or rehabilitated. This can be achieved by bringing onrecord, inter alia, material about his conduct in jail, his conductoutside jail if he has been on bail for some time, medical evidenceabout his mental make-up, contact with his family and so on.Similarly, the convict can produce evidence on these issues aswell. [Para 45][612-D-F]

1.3 If an inquiry of this nature is to be conducted, as ismandated by the decisions of this Court, it is quite obvious thatthe period between the date of conviction and the date of awardingsentence would be quite prolonged to enable the parties to gatherand lead evidence which could assist the Trial Court in taking aninformed decision on the sentence. But, there is no hurry in thisregard, since in any case the convict will be in custody for fairlylong time serving out at least life sentence. It is for theprosecution and the courts to determine whether such person,notwithstanding his crime, can be reformed and rehabilitated. Toobtain and analyse this information is certainly not an easy taskbut must nevertheless be undertaken. The process of

Arehabilitation is also not simple one since it involves social re-integration of the convict into society. Of course, notwithstandingany information made available and its analysis by experts coupledwith the evidence on record, there could be instances where thesocial re-integration of the convict may not be possible. If thatshould happen, the option of long duration of imprisonment isBpermissible. [Paras 46, 47][612-F-G; 613-D-E]

1.4 In other words, directing imprisonment for periodgreater than 14 years (say 20 or 25 years) could unquestionablyforeclose the imposition of sentence of death, being analternative option to capital punishment. [Para 48][613-E-F]C

DNA evidence

2.1 While Section 53-A of the Cr.P.C. is not mandatory, itcertainly requires positive decision to be taken. There mustbe reasonable grounds for believing that the examination of aDperson will afford evidence as to the commission of an offence ofrape or an attempt to commit rape. If reasonable grounds exist,then medical examination as postulated by Section 53-A(2) ofthe Cr.P.C. must be conducted and that includes examination ofthe accused and description of material taken from the person ofthe accused for DNA profiling. Similarly, Section 164-A of theECr.P.C. requires, wherever possible, for the medical examinationof victim of rape. Of course, the consent of the victim isnecessary and the person conducting the examinationmust be competent to medically examine the victim.[Paras 49, 50][613-F-H; 614-A, B-C]

2.2 For the prosecution to decline to produce DNA evidencewould be little unfortunate particularly when the facility of DNAprofiling is available in the country. The prosecution would bewell advised to take advantage of this, particularly in view of theprovisions of Section 53-A and Section 164-A of the Cr.P.C. It isGnot being suggested that if there is no DNA profiling, theprosecution case cannot be proved but certainly that where DNAprofiling has not been done or it is held back from the Trial Court,an adverse consequence would follow for the prosecution.[Para 54][615-G-H; 616-A]

2.3 There is no dispute that samples were taken from thebody of the accused and sent for DNA profiling. However, theresult was not produced before the Trial Court. There isabsolutely no explanation for this and in the absence of anyjustification for not producing the DNA evidence, it would bedangerous, on the facts of this case, to uphold the sentence ofdeath on the appellant. [Para 57][616-F-H]

Prior history of the convict or criminal antecedents

3.1 The history of the convict, including recidivism cannot,by itself, be ground for awarding the death sentence. Therecould be situation where convict has previously committed anoffence and has been convicted and sentenced for that offence.Thereafter, the convict commits second offence for which he isconvicted and sentence is required to be awarded. This does notpose any legal challenge or difficulty. But, there could also be asituation where convict has committed an offence and is undertrial for that offence. During the pendency of the trial he commitsa second offence for which he is convicted and in which sentenceis required to be awarded. Sections 54 of the Indian EvidenceAct, 1872 prohibits the use of previous bad character evidenceexcept when the convict himself chooses to lead evidence of hisgood character. The implication of this clearly is that the pastadverse conduct of the convict ought not to be taken intoconsideration for the purposes of determining thequantum of sentence, except in specified circumstances.[Paras 58, 59][617-A-D]

3.2 The mere pendency of one or more criminal casesagainst convict cannot be factor for consideration whileawarding sentence. Not only is it statutorily impermissible(except in some cases) but even otherwise it violates thefundamental presumption of innocence – human right - thateveryone is entitled to. In the present case there are two casespending against the appellant for similar offences. Both thesewere pending trial. Notwithstanding this, the Trial Judge tookthis into account as circumstance against the appellant. It wouldhave been far more appropriate for the Sessions Judge to have

Awaited, if he thought it necessary to take the pendency of thesecases into consideration, for the trials to be concluded.[Paras 73, 74][623-B-D]

3.3 Trial Judge can take his time and sentence the convictafter giving adequate opportunity for the prosecution as well asBfor the defence to produce material so that the possibility ofawarding life sentence is open to the Trial Judge as against thedeath sentence. Sentence of death should be awarded only in therarest of rare cases, only if an alternative option is unquestionablyforeclosed and only after full consideration of all factors keepingin mind that sentence of death is irrevocable and irretrievableCupon execution. While the crime is important, the criminal isequally important insofar as the sentencing process is concerned.A perusal of the website of the eCourts Project of the eCommitteeof the Supreme Court revealed that in fact there were total offour cases against the appellant, including the present case. It isDnot informed whether the conviction orders passedagainst the appellant have been set aside or not.[Paras 75, 77][623-F-H; 624-C; 625-B]

Conclusion

4. Insofar as the present petition is concerned, for theEpurposes of sentencing, the Sessions Judge, the High Court aswell as this Court did not take into consideration the probabilityof reformation, rehabilitation and social re-integration of theappellant into society. Indeed, no material or evidence was placedbefore the courts to arrive at any conclusion in this regard oneFway or the other and for whatever it is worth on the facts of thiscase. The prosecution was remiss in not producing the availableDNA evidence and the failure to produce material evidence mustlead to an adverse presumption against the prosecution and infavour of the appellant for the purposes of sentencing. The TrialCourt was also in error in taking into consideration, for theGpurposes of sentencing, the pendency of two similar cases againstthe appellant which it could not, in law, consider. However, onealso cannot overlook subsequent developments with regard tothe two (actually three) similar cases against the appellant. Forall these reasons, it would be more appropriate looking to the

crimes committed by the appellant and the material on recordincluding his overall personality and subsequent events, tocommute the sentence of death awarded to the appellant but it isdirected that he should not be released from custody for the restof his normal life. [Paras 79, 80][625-D-H; 626-A-B]

Bachan Singh v. State of Punjab (1980) 2 SCC 684 –followed.

Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90 ;Sushil Sharma v. State (NCT of Delhi) (2014) 4 SCC317 : [2013] 16 SCR 616 – relied on.

Shivaji alias Dadya Shankar Alhat v. State ofMaharashtra (2008) 15 SCC 269 : [2008] 13 SCR 81; State of Maharashtra v. Shankar Krisanrao Khade2008 ALL MR (Cri) 2143; Shankar Kisanrao Khadev. State of Maharashtra (2013) 5 SCC 546 : [2013] 6SCR 949 ; Laxman Naik v. State of Orissa (1994) 3SCC 381 : [1994] 2 SCR 94 ; Dhananjoy Chatterjeealias Dhana v. State of W.B. (1994) 2 SCC 220 : [1994]1 SCR 37 ; State of Maharashtra v. Bharat FakiraDhiwar (2002) 1 SCC 622 : [2001] 5 Suppl. SCR 12 ;State of Maharashtra v. Suresh (2000) 1 SCC 471 :[1999] 5 Suppl. SCR 215 ; Adu Ram v. Mukna (2005)10 SCC 597 : [2004] 5 Suppl. SCR 314 ; Molai andAnother v. State of M.P. (1999) 9 SCC 581 : [1999] 4Suppl. SCR104 ; Rajendra Pralhadrao Wasnik v. Stateof Maharashtra (2012) 4 SCC 37 : [2012] 2 SCR225 ; Mohd. Arif alias Ashfaq v. Registrar, SupremeCourt of India (2014) 9 SCC 737: [2014] 11 SCR 1009;Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC467 : [2007] 1 SCR 916; Aloke Nath Dutta v. State ofWest Bengal (2007) 12 SCC 230: [2006] 10 Suppl. SCR662 ; Swamy Shraddananda v. State of Karnataka(2007) 12 SCC 288 : [2007] 7 SCR 616 ; SwamyShradddananda (2) v. State of Karnataka (2008) 13SCC 767 : [2008] 11 SCR 93 ; Sebastian v. State ofKerala (2010) 1 SCC 58 : [2010] 1 SCC 58 ; Rameshv. State of Rajasthan (2011) 3 SCC 685: [2011] 4 SCR

A585 ; Kalu Khan v. State of Rajasthan (2015) 16 SCC492 ; Prakash Dhawal Khairnar (Patil) v. State ofMaharashtra (2002) 2 SCC 35 : [2001] 5 Suppl. SCR 612 ; Lehna v. State of Haryana (2002) 3 SCC76 : [2002] 1 SCR 377 ; Sandesh v. State ofMaharashtra (2013) 2 SCC 479 : [2012] 13 SCRB1049 ; Mohinder Singh v. State of Punjab (2013) 3 SCC294 : [2013] 3 SCR 90 ; Birju v. State of MadhyaPradesh (2014) 3 SCC 421: [2014] 1 SCR 1047; Anilv. State of Maharashtra (2014) 4 SCC 69: [2014]3 SCR 34; Mahesh Dhanaji Shinde v. State ofCMaharashtra (2014) 4 SCC 292:[2014] 3 SCR 406;Chhannu Lal Verma v. State of Chhattisgarh Decidedby Supreme Court on 28.11.2018 in Criminal AppealNos.1482 & 1483 of 2018; Sangeet v. State of Haryana(2013) 2 SCC 452 ; State of Gujarat v. Kishanbhai(2014) 5 SCC 108: [2014] 1 SCR 197 ; Mukesh andDAnr. v. State (NCT of Delhi) (2017) 6 SCC 1 : [2017] 6SCR 1;Selvi v. State of Karnataka (2010) 7 SCC263 : [2010] 5 SCR 381 ; Mohd. Farooq Abdul Gafurv. State of Maharashtra (2010) 14 SCC 641 : [2009]12 SCR 1093 ;Gurmukh Singh v. State of HaryanaE(2009) 15 SCC 635 : [2009] 13 SCR 548 ; Bantu v.State of M.P (2001) 9 SCC 615 : [2001] 4 Suppl. SCR298 ; Amit v. State of Maharashtra (2003) 8 SCC 93 :[2003] 2 Suppl. SCR 285 ; Rahul v. State ofMaharashtra (2005) 10 SCC 322 ; Surendra PalShivbalakpal v. State of Gujarat (2005) 3 SCC 127 :F[2004] 4 Suppl. SCR 464 ; Her Majesty The Queen v.Norman Skolnick [1982] 2 SCR 47 – referred to.

Scott Nathan Schluter v. Robin Laurence Trenerry (1997)6 NTLR 194 – referred to.

RAJENDRA PRALHADRAO WASNIK v. STATE OFMAHARASHTRA

[2001] 5 Suppl. SCR 12[1999] 5 Suppl. SCR 215[2004] 5 Suppl. SCR 314[1999] 4 Suppl. SCR 104[2012] 2 SCR 225[2014] 11 SCR 1009[2007] 1 SCR 916[2006] 10 Suppl. SCR 662[2007] 7 SCR 616[2008] 11 SCR 93[2009] 9 SCR 90[2010] 1 SCC 58[2011] 4 SCR 585[2013] 16 SCR 616(2015) 16 SCC 492[2001] 5 Suppl. SCR 612[2002] 1 SCR 377[2012] 13 SCR 1049[2013] 3 SCR 90[2014] 1 SCR 1047[2014] 3 SCR 34[2014] 3 SCR 406(2013) 2 SCC 452[2014] 1 SCR 197[2017] 6 SCR 1[2010] 5 SCR 381[2009] 12 SCR 1093[2009] 13 SCR 548[2001] 4 Suppl. SCR 298[2003] 2 Suppl. SCR 285(2005) 10 SCC 322[2004] 4 Suppl. SCR 464[1982] 2 SCR 47

ACRIMINAL APPELLATE JURISDICTION : Review Petition(Criminal) Nos. 306-307 of 2013.

Criminal Appeal Nos. 145-146 of 2011

BFrom the Judgment and Order dated 26.03.2009 of the High Courtof Judicature at Bombay, Nagpur Bench at Nagpur in CriminalConfirmation Case No. 3 of 2008 with Criminal Appeal No. 700 of 2008.

Yug Mohit Chaudhry, Siddhartha, Payoshi, S. PrabuRamasubramanian, Pandiarajan, William Vinothkumar, S. GowthamanCAdvs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Ms. Deepa Kulkarni,Anoop Kandari , Advs. for the Respondent.

The Judgment of the Court was delivered by

MADAN B. LOKUR, J.D

1. ‘Sentenced to death’ – these few words would have chillingeffect on anyone, including hardened criminal. Our society demandssuch sentence on grounds of its deterrent effect, although there is noconclusive study on its deterrent impact. Our society also demands deathsentence as retribution for ghastly crime having been committed,Ealthough again there is no conclusive study whether retribution by itselfsatisfies society. On the other hand, there are views that suggest thatpunishment for crime must be looked at with more humanitarian lensand the causes for driving person to commit heinous crime must beexplored. There is also view that it must be determined whether it isFpossible to reform, rehabilitate and socially reintegrate into society evena hardened criminal along with those representing the victims of thecrime.

2. These conflicting views make it very difficult for courts to takea decision and without expert evidence on the subject, courts are ill-Gequipped to form an objective opinion. But, Constitution Bench of thisCourt in Bachan Singh v. State of Punjab[1]has thrown its weight behinda humanitarian approach and mandated consideration of the probabilityof reform or rehabilitation of the criminal and required the prosecution toprove that it was not possible for the convict to be reformed orrehabilitated. However, the Constitution Bench left open corridor ofH

1(1980) 2 SCC 684

uncertainty thereby permitting, in the rarest of rare cases, thepronouncement of sentence of death. It is this paradigm that confrontsus in these petitions.

Background

3. The appellant is convicted for the rape and murder of girlaged 3 years. The offence was committed in the intervening night of2nd and 3rd March, 2007. On the basis of circumstantial evidence ledby the prosecution, the appellant was found guilty of and convicted foroffences punishable under Sections 376(2)(f), 377 and 302 of the IndianPenal Code (IPC) by the Sessions Judge, Amravati in Sessions Trial No.183 of 2007 by judgment dated 6th September, 2008.

4. With regard to the sentence to be awarded, the Trial Judgeheard the prosecution and the appellant on 6th September, 2008 andagain on 8th September, 2008 on which date he passed preliminaryorder. The submissions of the Public Prosecutor as well as the learnedcounsel for the defence were heard on that date and reference wasmade to decision of this Court in Shivaji alias Dadya Shankar Alhatvs. State of Maharashtra[2]. In the decision rendered by this Court itwas observed in paragraph 27 of the Report as follows:“27. The plea that in case of circumstantial evidence deathshould not be awarded is without any logic. If the circumstantialevidence is found to be of unimpeachable character in establishingthe guilt of the accused, that forms the foundation for conviction.That has nothing to do with the question of sentence as has beenobserved by this Court in various cases while awarding deathsentence. The mitigating circumstances and the aggravatingcircumstances have to be balanced. In the balance sheet of suchcircumstances, the fact that the case rests on circumstantialevidence has no role to play. In fact in most of the cases wheredeath sentences are awarded for rape and murder and the like,there is practically no scope for having an eyewitness. They arenot committed in the public view. But the very nature of things insuch cases, the available evidence is circumstantial evidence. Ifthe said evidence has been found to be credible, cogent andtrustworthy for the purpose of recording conviction, to treat thatevidence as mitigating circumstance, would amount toconsideration of an irrelevant aspect. The plea of the learned

Aamicus curiae that the conviction is based on circumstantialevidence and, therefore, the death sentence should not beawarded is clearly unsustainable.” (Emphasis supplied by us).

Thereafter, the learned Sessions Judge passed an order on 10thSeptember, 2008 awarding the sentence of death to the appellant.

5. We have gone through the orders passed on 8th September,2008 as well as on 10th September, 2008 and find that the SessionsJudge has primarily discussed the nature and gravity of the offence andcertain factors personal to the appellant such as the fact the he has achild who is 9 years of age and his parents are dependent upon him.CThe Sessions Judge also took into consideration the fact that there aretwo other cases pending against the appellant under similar provisions oflaw and he expressed the opinion that the pendency of those cases is acircumstance against the appellant. For this, reliance was placed onState of Maharashtra v. Shankar Krisanrao Khade[3]. It may bementioned, en passant, that the view of the Bombay High Court inDShankar was not accepted by this Court in Shankar Kisanrao Khadev. State of Maharashtra[4] in paragraphs 60 and 61 of the Report.

6. On an overall view of the circumstances of the case, the SessionsJudge concluded that any alternative option of punishment isunquestionably foreclosed and therefore the only sentence that could beEawarded to the appellant is of capital punishment.

7. The appellant preferred an appeal against his conviction andsentence before the Bombay High Court being Criminal Appeal No. 700of 2008. This was heard along with Criminal Confirmation Case No. 3of 2008. Both these were taken up for consideration and the convictionFwas upheld and capital punishment awarded to the appellant wasconfirmed by the High Court by judgment and order dated 26th March,2009.

8. The High Court considered the question of sentence to beawarded to the appellant. (We are not concerned with the merits of theGconviction). It appears from reading of the judgement that learnedcounsel for the appellant argued in the Bombay High Court on thequestion of sentence awarded to the appellant and the primary submissionmade for commuting the death sentence to life imprisonment was thatthe case was one of circumstantial evidence. Reference was made to

H32008 ALL MR (Cri) 21434(2013) 5 SCC 546

Laxman Naik v. State of Orissa[5], Dhananjoy Chatterjee alias Dhanav. State of W.B.[6], State of Maharashtra v. Bharat Fakira Dhiwar[7]¸State of Maharashtra v. Suresh[8], Adu Ram v. Mukna9 and Molaiand Another v. State of M.P.[10]

9. Thereafter, the High Court held as follows:

“We have carefully considered the facts of the present case inlight of the above judicial precedents and find that the learnedTrial Judge rightly held that the appellant deserved capitalpunishment. The appellants conduct exhibits total disregardfor human values and shows totally depraved, brutal andscheming mind taking advantage of helpless child, showingno concern that his lust extinguished the flame of life in thechild. We, therefore, confirm the sentence of death imposed uponthe appellant for offence punishable under Section 302 of the PenalCode. We also dismiss the convict’s appeal and maintain hisconvictions as well as sentences imposed.” (Emphasis suppliedby us).

10. Feeling aggrieved by the decision rendered by the High Court,the appellant preferred appeals in this Court being Criminal Appeal Nos.145-146 of 2011. These appeals were dismissed by judgment andorder dated 29th February, 2012[11].

11. Review Petitions were then filed by the appellant being R.P.(C) Diary No. 26107 of 2012 which came to be dismissed by an orderdated 7th March, 2013.

12. Thereafter, in completely different case, Constitution Benchof this Court in Mohd. Arif alias Ashfaq v. Registrar, Supreme Courtof India[12] considered two basic issues in cases where death sentencehad been pronounced by the High Court. These two issues were: (1)whether the hearing of cases in which death sentence has been awardedshould be by Bench of at least three if not five judges of this Court, and(2) whether the hearing of review petitions in death sentence cases shouldnot be by circulation, but should only be in open court.

5 (1994) 3 SCC 3816 (1994) 2 SCC 2207 (2002) 1 SCC 622

8 (2000) 1 SCC 471

9 (2005) 10 SCC 597

10 AIR 2000 SC 177 = (1999) 9 SCC 581

11 Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37

12 (2014) 9 SCC 737

A13. In considering these issues, the Constitution Bench held thathenceforth in every appeal pending in this Court in which death sentencehas been awarded by the High Court, only Bench of three judges willhear the appeal. The Constitution Bench was not persuaded to acceptthe submission that the appeal should be heard by five judges. Withregard to the oral hearing in open court, it was held that limited oralBhearing ought to be given in cases where death sentence is awarded andthat would be applicable in pending review petitions and such reviewpetitions filed in future. This direction would also apply where reviewpetition is already dismissed but the death sentence is not executed. Insuch cases, the convict can apply for reopening the review petition withinCone month from the date of the decision rendered by the ConstitutionBench. However, in cases where even curative petition is dismissed,it would not be proper to reopen such matters.

14. In the present appeal, curative petition had not been filed bythe appellant and therefore in view of the decision of the ConstitutionDBench, the review petitions were restored by an order dated 24th March,2015 and that is how they have come up for consideration before usafter gap of more than 3½ years.

Submissions

15. It was submitted by learned counsel for the appellant thatEthere are variety of factors that require to be taken into considerationwhile awarding the death sentence, keeping in mind the view expressedby this Court in Bachan Singh. Despite this, learned counsel confinedhimself to four principal contentions before us only on the question ofcommuting the death sentence to one of life imprisonment. The fourFcontentions urged were:

1.The conviction was based on circumstantial evidence andin such cases, the death sentence should ordinarily not beawarded.

2.The probability of reform and rehabilitation of the appellantGwas not considered either by the Trial Court or by the HighCourt or even by this Court despite several decisionsmandating such consideration. It was submitted that thereis probability that the appellant can be reformed andrehabilitated.

3.Vital DNA evidence was not placed before the Trial CourtAor taken into consideration contrary to the provisions ofSection 53-A of the Criminal Procedure Code, 1973 (forshort ‘Cr.P.C’)[13] and Section 164-A of the Cr.P.C.[14]

13–Section 53A. Examination of person accused of rape by medical practitioner. (1) When person is arrested on charge of committing an offence of rape or anattempt to commit rape and there are reasonable grounds for believing that an examinationof his person will afford evidence as to the commission of such offence, it shall belawful for registered medical practitioner employed in hospital run by the Governmentor by local authority and in the absence of such practitioner within the radius ofsixteen kilometers from the place where the offence has been committed by any otherregistered medical practitioner acting at the request of police officer not below therank of sub-inspector, and for any person acting in good faith in his aid and under hisdirection, to make such an examination of the arrested person and to use such force asis reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, withoutdelay, examine such person and prepare report of his examination giving the followingparticulars, namely. –

(i) the name and address of the accused and of the person by whom he was brought,

DEFG

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling,and

(v) Other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.(4) The exact time of commencement and completion of the examination shall also benoted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of theinvestigating officer, who shall forward it to the Magistrate referred to in section 173 aspart of the documents referred to in clause (a) of sub-section (5) of that section.14164A. Medical examination of the victim of rape. – (1) Where, during the stagewhen an offence of committing rape or attempt to commit rape is under investigation,it is proposed to get the person of the woman with whom rape is alleged or attemptedto have been committed or attempted, examined by medical expert, such examinationshall be conducted by registered medical practitioner employed in hospital run bythe Government or local authority and in the absence of such practitioner, by anyother registered medical practitioner, with the consent of such woman or of personcompetent to give such consent on her behalf and such woman shall be sent to suchregistered medical practitioner within twenty-four hours from the time of receiving theinformation relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent, shall, withoutdelay, examine her person and prepare report of his examination giving the followingparticulars, namely: –

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

A4.The reference to the past history of the appellant was notwarranted.

We propose to deal with the submissions in seriatim.

Circumstantial evidence

B16. In the cases of Laxman Naik, Dhananjoy Chatterjee andMolai referred to by the High Court, there is no discussion one way orthe other whether the death penalty should or should not be awarded ona conviction based on circumstantial evidence. What was discussed wasthe brutality of the crime which warranted the imposition of the deathpenalty. These decisions do not take forward the case of the appellant.C

17. We now consider the cases cited before us by learned counselfor the parties on the award of death sentence based on circumstantialevidence.

18. In Bishnu Prasad Sinha v. State of Assam[15] this CourtDeffectively accepted the proposition in paragraph 55 of the Report thatordinarily death penalty would not be awarded if the connection is provedby circumstantial evidence, coupled with some other factors that areadvantageous to the convict. It was held as follows:

“55. The question which remains is as to what punishment shouldbe awarded. Ordinarily, this Court, having regard to the nature ofEthe offence, would not have differed with the opinion of the learnedSessions Judge as also the High Court in this behalf, but it must be

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.F(3) The report shall state precisely the reasons for each conclusion arrived at.4) The report shall specifically record that the consent of the woman or of the personcompetent to give such consent on her behalf to such examination had been obtained.(5) The exact time of commencement and completion of the examination shall also benoted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the

investigating officer who shall forward it to the Magistrate referred to in section 173 asGpart of the documents referred to in clause (a) of sub-section (5) of that section.(7) Nothing in this section shall be construed as rendering lawful any examinationwithout the consent of the woman or of any person competent to give such consent onher behalf.

Explanation. – For the purposes of this section, “examination” and “registered medicalpractitioner” shall have the same meanings as in section 53.H15(2007) 11 SCC 467

borne in mind that the appellants are convicted only on the basisof the circumstantial evidence. There are authorities for theproposition that if the evidence is proved by circumstantialevidence, ordinarily, death penalty would not be awarded.Moreover, Appellant 1 showed his remorse and repentanceeven in his statement under Section 313 of the Code of CriminalProcedure. He accepted his guilt.” (Emphasis supplied by us).

19. In Aloke Nath Dutta v. State of West Bengal[16] the principlethat death penalty should ordinarily not be awarded in case arising outof circumstantial evidence was broadly accepted along with the riderthat there should be some “special reason” for awarding the death penalty.It was held in paragraph 174 of the Report as follows:

“174. There are some precedents of this Court e.g. Sahdeo v.State of U.P. [(2004) 10 SCC 682] and Sk. Ishaque v. State ofBihar [(1995) 3 SCC 392] which are authorities for the propositionthat if the offence is proved by circumstantial evidenceordinarily death penalty should not be awarded. We thinkwe should follow the said precedents instead and, thus, inplace of awarding the death penalty, impose the sentence ofrigorous imprisonment for life as against Aloke Nath. Furthermorewe do not find any special reason for awarding death penaltywhich is imperative.” (Emphasis supplied by us).

20. In Swamy Shraddananda v. State of Karnataka[17] this Courtsounded note of caution in paragraph 87 of the Report that convictionsbased on seemingly conclusive circumstantial evidence should not bepresumed to be fool-proof. It was held:

“87. It has been fundamental point in numerous studies in thefield of death penalty jurisprudence that cases where the solebasis of conviction is circumstantial evidence, have fargreater chances of turning out to be wrongful convictions,later on, in comparison to ones which are based on fittersources of proof. Convictions based on seemingly conclusivecircumstantial evidence should not be presumed as foolproofincidences and the fact that the same are basedon circumstantial evidence must be definite factor at thesentencing stage deliberations, considering that capital

16(2007) 12 SCC 230

17(2007) 12 SCC 288

Apunishment is unique in its total irrevocability. Anycharacteristic of trial, such as conviction solely resting oncircumstantial evidence, which contributes to the uncertainty inthe culpability calculus, must attract negative attention whiledeciding maximum penalty for murder.” (Emphasis supplied byus).

21. In Swamy Shraddananda the view taken by Justice S.B.Sinha was that on the facts of the case, death sentence was not warrantedbut that the appellant should be awarded life sentence which must bemeant as sentence for life. However, Justice Markandey Katju differedon the sentence to be awarded and expressed the view that the caseCwas one where the murder was cold-blooded, calculated and diabolic.

The learned Judge was of opinion that the case fell within the categoryof rarest of rare cases and it would be travesty of justice if the deathsentence is not affirmed. Accordingly, the learned Judge affirmed thedeath sentence.D

22. In view of the difference of opinion with regard to the quantumof punishment, the matter was referred to larger Bench of three learnedjudges. The decision of the larger Bench is reported as SwamyShradddananda (2) v. State of Karnataka[18].

23. The larger Bench took the view that the case was one ofEcircumstantial evidence only. However, considering the entire facts ofthe case, the Bench expressed its opinion on the quantum of punishmenttaking into consideration the gap in imprisonment between lifeimprisonment (which is normally 14 years) and death. While consideringthis, it was held that in view of the gap, the Court might be tempted intoFendorsing the death penalty but that it would be far more just, reasonableand proper course of action to expand the options and bridge the gap.This would be re-assertion of the Constitution Bench decision in BachanSingh besides being in accord with the modern trends of penology.Consequently, the death sentence was unanimously substituted by lifeimprisonment with direction that the convict must not be released fromGprison for the rest of his life or for the actual term as specified in theorder, as the case may be. The view expressed by Justice S.B. Sinhawas endorsed and it was directed that the convict shall not be releasedfrom prison till the rest of his life. The view expressed by this Court inparagraphs 92 to 95 of the Report is reproduced below:H18(2008) 13 SCC 767

“92. The matter may be looked at from slightly different angle.The issue of sentencing has two aspects. sentence may beexcessive and unduly harsh or it may be highlydisproportionately inadequate. When an appellant comes to thisCourt carrying death sentence awarded by the trial court andconfirmed by the High Court, this Court may find, as in the presentappeal, that the case just falls short of the rarest of the rarecategory and may feel somewhat reluctant in endorsing the deathsentence. But at the same time, having regard to the nature of thecrime, the Court may strongly feel that sentence of lifeimprisonment subject to remission normally works out to termof 14 years would be grossly disproportionate and inadequate.What then should the Court do? If the Court’s option is limitedonly to two punishments, one sentence of imprisonment,for all intents and purposes, of not more than 14 years andthe other death, the Court may feel tempted and find itselfnudged into endorsing the death penalty. Such coursewould indeed be disastrous. far more just, reasonableand proper course would be to expand the options and totake over what, as matter of fact, lawfully belongs to theCourt i.e. the vast hiatus between 14 years’ imprisonmentand death. It needs to be emphasised that the Court would takerecourse to the expanded option primarily because in the facts ofthe case, the sentence of 14 years’ imprisonment would amountto no punishment at all.

93. Further, the formalisation of special category of sentence,though for an extremely few number of cases, shall have thegreat advantage of having the death penalty on the statute bookbut to actually use it as little as possible, really in the rarest of rarecases. This would only be reassertion of the Constitution Benchdecision in Bachan Singh [(1980) 2 SCC 684] besides being inaccord with the modern trends in penology.

94. In the light of the discussions made above we are clearly ofthe view that there is good and strong basis for the Court tosubstitute death sentence by life imprisonment or by aterm in excess of fourteen years and further to direct that theconvict must not be released from the prison for the rest of his lifeor for the actual term as specified in the order, as the case maybe.

A95. In conclusion, we agree with the view taken by Sinha, J. Weaccordingly substitute the death sentence given to theappellant by the trial court and confirmed by the High Courtby imprisonment for life and direct that he shall not bereleased from prison till the rest of his life. (Emphasis suppliedby us).”B

24. In Santosh Kumar Satishbhushan Bariyar v. State ofMaharashtra[19] this Court clearly laid down the law in paragraph 167 ofthe Report to the effect that while there is no prohibition in law in awardinga death sentence in case of circumstantial evidence, but that evidencemust lead to an exceptional case. It was said:C

“167. The entire prosecution case hinges on the evidence of theapprover. For the purpose of imposing death penalty, that factormay have to be kept in mind. We will assume that in SwamyShraddananda (2), this Court did not lay down firm law that ina case involving circumstantial evidence, imposition of deathDpenalty would not be permissible. But, even in relation thereto thequestion which would arise would be whether in arriving at aconclusion some surmises, some hypothesis would be necessaryin regard to the manner in which the offence was committed ascontradistinguished from case where the manner of occurrenceEhad no role to play. Even where sentence of death is to beimposed on the basis of the circumstantial evidence, thecircumstantial evidence must be such which leads to anexceptional case.” (Emphasis supplied by us).

25. In Sebastian v. State of Kerala[20] there is brief reference toFdeath penalty in case of circumstantial evidence in paragraphs 17 and18 of the Report. While commuting the death sentence to one of lifeimprisonment, this Court relied upon Swamy Shraddananda (2) andheld:

“17. The learned counsel for the appellant has finally urged thatthe death sentence in the circumstances was not called for. HeGhas pointed out that the case rested on circumstantial evidenceand the death penalty should not ordinarily be awarded in such acase. It has further been emphasised that the appellant was ayoung man of 24 years of age at the time of the incident.

19(2009) 6 SCC 498H20(2010) 1 SCC 58

18. We are of the opinion that in the background of these facts,the death penalty ought to be converted to imprisonmentfor life but in terms laid down by this Court in SwamyShraddananda (2) v. State of Karnataka [(2008) 13 SCC 767]as his continuance as member of an ordered society isuncalled for.” (Emphasis supplied by us).

26. In Ramesh v. State of Rajasthan[21] this Court referred toBariyar and in paragraph 68 and paragraph 69 of the Report, it washeld:

“68. ……… The Court, thus, has in guided manner referred tothe quality of evidence and has sounded note of caution that ina case where the reliance is on circumstantial evidence, that factorhas to be taken into consideration while awarding the deathsentence. This is also case purely on the circumstantial evidence.We should not be understood to say that in all cases ofcircumstantial evidence, the death sentence cannot begiven.

69. In fact in Shivaji v. State of Maharashtra this Court hadawarded death sentence though the evidence was of circumstantialnature. All that we say is that the case being dependent uponcircumstantial evidence is one of the relevantconsiderations. We have only noted it as one of the circumstancesin formulating the sentencing policy……...” (Emphasis suppliedby us).

27. In Sushil Sharma v. State (NCT of Delhi)[22] this Courtconsidered the peculiar facts of the case and did not award the deathpenalty since the only evidence was circumstantial and there were somefactors that were to the advantage of the appellant. It was held inparagraph 101 of the Report as follows:

“101. We notice from the above judgments that mere brutalityof the murder or the number of persons killed or the mannerin which the body is disposed of has not always persuadedthis Court to impose death penalty. Similarly, at times, in thepeculiar factual matrix, this Court has not thought it fit to awarddeath penalty in cases, which rested on circumstantial evidence

21(2011) 3 SCC 685

22(2014) 4 SCC 317

Aor solely on approver’s evidence. Where murder, though brutal, iscommitted driven by extreme emotional disturbance and it doesnot have enormous proportion, the option of life imprisonment hasbeen exercised in certain cases…….” (Emphasis supplied by us).

28. Finally, in Kalu Khan v. State of Rajasthan[23] this CourtBreferred to Swamy Shraddananda and in paragraph 31 of the Reportit was held, on the facts of the case, that the balance of circumstancesintroduces an uncertainty in the “culpability calculus” and therefore therewas an alternative to the imposition of the death penalty. Accordingly,the sentence was commuted to imprisonment for life.

C29. The result of the above discussion is that ordinarily, it wouldnot be advisable to award capital punishment in case of circumstantialevidence. But there is no hard and fast rule that death sentence shouldnot be awarded in case of circumstantial evidence. The precautionsthat must be taken by all the courts in cases of circumstantial evidenceis this: if the court has some doubt, on the circumstantial evidence onDrecord, that the accused might not have committed the offence, then acase for acquittal would be made out; if the court has no doubt, on thecircumstantial evidence, that the accused is guilty, then of course aconviction must follow. If the court is inclined to award the death penaltythen there must be some exceptional circumstances warranting theEimposition of the extreme penalty. Even in such cases, the court mustfollow the dictum laid down in Bachan Singh that it is not only thecrime, but also the criminal that must be kept in mind and any alternativeoption of punishment is unquestionably foreclosed. The reason for thesecond precaution is that the death sentence, upon execution, isirrevocable and irretrievable.F

30. Insofar as the present case is concerned, learned counsel forthe appellant did not lay much stress on commuting the death sentenceto one of life imprisonment only on the basis of the circumstantialevidence on record. Therefore, we need not examine the nature of thecrime and other factors or detain ourselves in this regard. We haveGreferred to the various decisions cited by learned counsel only forcompleteness of the record and to reaffirm the view that ordinarilydeath sentence should not be awarded in conviction based oncircumstantial evidence.

Reform, rehabilitation and re-integration into society

31. The discussion on the reform or rehabilitation of convictbegins with the acknowledgement in Bachan Singh that the probabilitythat convict can be reformed and rehabilitated is valid considerationfor deciding whether he should be awarded capital punishment or lifeimprisonment. This Court has also accepted the view that it is for theState to prove by evidence that the convict is not capable of beingreformed and rehabilitated and should, therefore, be awarded the deathsentence.

32. This view has been accepted universally in all the decisionsthat were cited before us by learned counsel for the appellant.

33. In Prakash Dhawal Khairnar (Patil) v. State ofMaharashtra[24]the probability of reform and rehabilitation of the convictwas considered by this Court. It was held that the convict did not haveany criminal tendency and was gainfully employed. Though the crimewas heinous, it would be difficult to hold that it was the rarest of rarecases. It could not be held that the appellant would be menace tosociety and there was no reason to believe that he could not be reformedor rehabilitated. Accordingly, the death penalty was converted intoimprisonment for 20 years.

34. In Lehna v. State of Haryana[25]it was held that the specialreasons for awarding the death sentence must be such that compel thecourt to conclude that it is not possible to reform and rehabilitate theoffender. It was said in paragraph 14 of the Report as follows:

14. ……..Death sentence is ordinarily ruled out and can only beimposed for “special reasons”, as provided in Section 354(3). Thereis another provision in the Code which also uses the significantexpression “special reason”. It is Section 361……... Section 361which is new provision in the Code makes it mandatory for thecourt to record “special reasons” for not applying the provisionsof Section 360. Section 361 thus casts duty upon the court toapply the provisions of Section 360 wherever it is possible to doso and to state “special reasons” if it does not do so. In thecontext of Section 360, the “special reasons” contemplatedby Section 361 must be such as to compel the court to holdthat it is impossible to reform and rehabilitate the offender

24(2002) 2 SCC 3525(2002) 3 SCC 76

Aafter examining the matter with due regard to the age,character and antecedents of the offender and thecircumstances in which the offence was committed. This issome indication by the legislature that reformation andrehabilitation of offenders and not mere deterrence, arenow among the foremost objects of the administration ofBcriminal justice in our country. Section 361 and Section 354(3)have both entered the statute-book at the same time and they arepart of the emerging picture of acceptance by the legislature ofthe new trends in criminology. It would not, therefore, be wrongto assume that the personality of the offender as revealed by hisCage, character, antecedents and other circumstances and thetractability of the offender to reform must necessarily play themost prominent role in determining the sentence to be awarded.Special reasons must have some relation to these factors……..”(Emphasis supplied by us).

D35. In Bariyar this Court referred to the law laid down in BachanSingh to the effect that capital punishment should be awarded only inthe rarest of rare cases and then held in paragraph 66 of the Report thatthere must be clear evidence to indicate that the convict is incapable ofreform and rehabilitation. It was held as follows:

E“66. The rarest of rare dictum, as discussed above, hints at thisdifference between death punishment and the alternativepunishment of life imprisonment. The relevant question here wouldbe to determine whether life imprisonment as punishment willbe pointless and completely devoid of reason in the facts andcircumstances of the case? As discussed above, life imprisonmentFcan be said to be completely futile, only when the sentencingaim of reformation can be said to be unachievable. Therefore, forsatisfying the second exception to the rarest ofrare doctrine, the court will have to provide clear evidenceas to why the convict is not fit for any kind of reformatoryGand rehabilitation scheme. This analysis can only be done withrigour when the court focuses on the circumstances relating tothe criminal, along with other circumstances. This is not an easyconclusion to be deciphered, but Bachan Singh sets the bar veryhigh by introduction of the rarest of rare doctrine.” (Emphasissupplied by us).

36. In Ramesh reference was made to Shivaji and BachanSingh in paragraph 69 of the Report and it was held while reiterating theview expressed in Bariyar that the reformation and rehabilitation of aconvict is mitigating circumstance for the purposes of awardingpunishment and the State should, by evidence prove that the convictwas not likely to be reformed.

37. In Sandesh v. State of Maharashtra[26]this Court once againacknowledged the principle that it is for the prosecution to lead evidenceto show that there is no possibility that the convict cannot be reformed.

38. Similarly, in Mohinder Singh v. State of Punjab[27] it was heldin paragraph 23 of the Report as follows:

“……As discussed above, life imprisonment can be said tobe completely futile, only when the sentencing aim ofreformation can be said to be unachievable. Therefore, forsatisfying the second aspect to the “rarest of rare” doctrine, thecourt will have to provide clear evidence as to why the convict isnot fit for any kind of reformatory and rehabilitation scheme.”(Emphasis supplied by us).

39. In Birju v. State of Madhya Pradesh[28]this Court explainedthe necessity of considering the probability of reform and rehabilitationof the convict by referring to the provisions of the Probation of OffendersAct, 1958 where convict is placed under probation in case wherethere is possibility of reform. It was held in paragraph 20 of the Report:

“20. In the instant case, the High Court took the view that therewas no probability that the accused would not commit criminalacts of violence and would constitute continuing threat to thesociety and there would be no probability that the accused couldbe reformed or rehabilitated……. Courts used to apply reformativetheory in certain minor offences and while convicting persons,the courts sometimes release the accused on probation in termsof Section 360 CrPC and Sections 3 and 4 of the Probation ofOffenders Act, 1958. Sections 13 and 14 of the Act provide forappointment of Probation Officers and the nature of duties to beperformed. Courts also, while exercising power under Section 4,call for report from the Probation Officer. In our view, while

26(2013) 2 SCC 479

27(2013) 3 SCC 294

28(2014) 3 SCC 421

Aawarding sentence, in appropriate cases, while hearing the accusedunder Section 235(2) CrPC, courts can also call for report fromthe Probation Officer……….. Courts can then examinewhether the accused is likely to indulge in commission ofany crime or there is any probability of the accused beingreformed and rehabilitated.” (Emphasis supplied by us).B

40. In Anil v. State of Maharashtra[29] this Court implemented thereform and rehabilitation theory. In fact, in paragraph 33 of the Report adirection was issued that while dealing with offences like Section 302 ofthe IPC, the criminal courts may call for report to determine whetherthe convict could be reformed or rehabilitated. This Court noted the dutyCof the criminal courts to ascertain whether the convict can be reformedand rehabilitated and it is the obligation of the State to furnish materialsfor and against the possibility of reform and rehabilitation. It was held asfollows:

33. In Bachan Singh this Court has categorically stated, “theDprobability that the accused would not commit criminal acts ofviolence as would constitute continuing threat to the society”, isa relevant circumstance, that must be given great weight in thedetermination of sentence. This was further expressed in SantoshKumar Satishbhushan Bariyar. Many times, whileEdetermining the sentence, the courts take it for granted,looking into the facts of particular case, that the accusedwould be menace to the society and there is no possibilityof reformation and rehabilitation, while it is the duty of thecourt to ascertain those factors, and the State is obliged tofurnish materials for and against the possibility ofFreformation and rehabilitation of the accused. The facts,which the courts deal with, in given case, cannot be the foundationfor reaching such conclusion, which, as already stated, calls foradditional materials. We, therefore, direct that the criminal courts,while dealing with the offences like Section 302 IPC, afterGconviction, may, in appropriate cases, call for report todetermine, whether the accused could be reformed orrehabilitated, which depends upon the facts and circumstancesof each case.” (Emphasis supplied by us).

41. In Mahesh Dhanaji Shinde v. State of Maharashtra[30]thisCourt considered the conduct of the convicts and on the facts before it,it was concluded that they were capable of living changed life if theyare rehabilitated in society. In any event, the State had not contendedthat the convicts were beyond reformation and could not lead changedlife if they are rehabilitated in society.

42. In Sushil Sharma this Court acknowledged that among variousfactors, one of the factors required to be taken into consideration forawarding or not awarding capital punishment is the probability of reformand rehabilitation of the convict. This acknowledgement was made inparagraph 103 of the Report, in which it was said:

“103. In the nature of things, there can be no hard-and-fast ruleswhich the court can follow while considering whether an accusedshould be awarded death sentence or not. The core of criminalcase is its facts and, the facts differ from case to case. Therefore,the various factors like the age of the criminal, his social status,his background, whether he is confirmed criminal or not, whetherhe had any antecedents, whether there is any possibility ofhis reformation and rehabilitation or whether it is casewhere the reformation is impossible and the accused is likelyto revert to such crimes in future and become threat to thesociety are factors which the criminal court will have to examineindependently in each case. Decision whether to impose deathpenalty or not must be taken in the light of guiding principles laiddown in several authoritative pronouncements of this Court in thefacts and attendant circumstances of each case.” (Emphasissupplied by us).43. At this stage, we must hark back to Bachan Singh anddifferentiate between possibility, probability and impossibility of reformand rehabilitation. Bachan Singh requires us to consider the probabilityof reform and rehabilitation and not its possibility or its impossibility.

44. Finally, in recent decision of this Court, in Chhannu LalVerma v. State of Chhattisgarh[31] the necessity of deciding whether

30(2014) 4 SCC 292

31 Criminal Appeal Nos. 1482-1483 of 2018 [Arising out of S.L.P. (Criminal) Nos. 5898-5899 of 2014] Decided on November 28, 2018

Athere is any probability of reformation and rehabilitation of the convictwas emphasised in cases where there is possibility of imposition of thedeath penalty. It was held in paragraph 15 of the Report as follows:

“15. ……….. No evidence as to the uncommon nature of theoffence or the improbability of reformation or rehabilitation of theBappellant has been adduced. Bachan Singh (supra) unambiguouslysets out that death penalty shall be awarded only in the rarest ofrare cases where life imprisonment shall be wholly inadequateor futile owing to the nature of the crime and the circumstancesrelating to the criminal. Whether the person is capable ofreformation and rehabilitation should also be taken intoCconsideration while imposing death penalty………”(Emphasis supplied by us).

45. The law laid down by various decisions of this Court clearlyand unequivocally mandates that the probability (not possibility orimprobability or impossibility) that convict can be reformed andDrehabilitated in society must be seriously and earnestly considered bythe courts before awarding the death sentence. This is one of themandates of the “special reasons” requirement of Section 354(3) of theCr.P.C. and ought not to be taken lightly since it involves snuffing out thelife of person. To effectuate this mandate, it is the obligation on theEprosecution to prove to the court, through evidence, that the probabilityis that the convict cannot be reformed or rehabilitated. This can beachieved by bringing on record, inter alia, material about his conduct injail, his conduct outside jail if he has been on bail for some time, medicalevidence about his mental make-up, contact with his family and so on.Similarly, the convict can produce evidence on these issues as well.F

46. If an inquiry of this nature is to be conducted, as is mandatedby the decisions of this Court, it is quite obvious that the period betweenthe date of conviction and the date of awarding sentence would be quiteprolonged to enable the parties to gather and lead evidence which couldassist the Trial Court in taking an informed decision on the sentence.GBut, there is no hurry in this regard, since in any case the convict will bein custody for fairly long time serving out at least life sentence.

47. Consideration of the reformation, rehabilitation and re-integration of the convict into society cannot be over-emphasised. UntilBachan Singh, the emphasis given by the courts was primarily on thenature of the crime, its brutality and severity. Bachan Singh placed thesentencing process into perspective and introduced the necessity ofconsidering the reformation or rehabilitation of the convict. Despite theview expressed by the Constitution Bench, there have been severalinstances, some of which have been pointed out in Bariyar and inSangeet v. State of Haryana[32]where there is tendency to give primacyto the crime and consider the criminal in somewhat secondary manner.As observed in Sangeet “In the sentencing process, both the crime andthe criminal are equally important.” Therefore, we should not forgetthat the criminal, however ruthless he might be, is nevertheless humanbeing and is entitled to life of dignity notwithstanding his crime.Therefore, it is for the prosecution and the courts to determine whethersuch person, notwithstanding his crime, can be reformed andrehabilitated. To obtain and analyse this information is certainly not aneasy task but must nevertheless be undertaken. The process ofrehabilitation is also not simple one since it involves social re-integrationof the convict into society. Of course, notwithstanding any informationmade available and its analysis by experts coupled with the evidence onrecord, there could be instances where the social re-integration of theconvict may not be possible. If that should happen, the option of longduration of imprisonment is permissible.

48. In other words, directing imprisonment for period greaterthan 14 years (say 20 or 25 years) could unquestionably foreclose theimposition of sentence of death, being an alternative option to capitalpunishment.

DNA evidence

49. While Section 53-A of the Cr.P.C. is not mandatory, it certainlyrequires positive decision to be taken. There must be reasonable groundsfor believing that the examination of person will afford evidence as tothe commission of an offence of rape or an attempt to commit rape. Ifreasonable grounds exist, then medical examination as postulated bySection 53-A(2) of the Cr.P.C. must be conducted and that includesexamination of the accused and description of material taken from the

Aperson of the accused for DNA profiling. Looked at from another pointof view, if there are reasonable grounds for believing that an examinationof the accused will not afford evidence as to the commission of an offenceas mentioned above, it is quite unlikely that charge-sheet would evenbe filed against the accused for committing an offence of rape or attemptto rape.B

50. Similarly, Section 164-A of the Cr.P.C. requires, whereverpossible, for the medical examination of victim of rape. Of course, theconsent of the victim is necessary and the person conducting theexamination must be competent to medically examine the victim. Again,one of the requirements of the medical examination is an examination ofCthe victim and description of material taken from the person of the womanfor DNA profiling.

51. There can be no doubt that there have been remarkabletechnological advancements in forensic science and in scientificinvestigations. These must be made fully use of and the somewhatDarchaic methods of investigations must be given up. In Krishna KumarMalik v. State of Haryana[33]this Court referred to Section 53-A of theCr.P.C. and observed that after the enactment of this provision witheffect from 23rd June, 2006 “it has become necessary for the prosecutionto go in for DNA test in such type of cases, facilitating the prosecutionEto prove its case against the accused”.

52. The necessity of taking advantage of the advancement inscientific investigation was the subject matter of discussion in State ofGujarat v. Kishanbhai.[34]In that case, this Court lamented the failureof the investigating agency to take advantage of scientific investigations.It was said:F

“12.7.5. There has now been great advancement in scientificinvestigation on the instant aspect of the matter. The investigatingagency ought to have sought DNA profiling of the blood samples,which would have given clear picture whether or not the bloodGof the victim [deleted] was, in fact on the clothes of the respondent-accused Kishanbhai. This scientific investigation would haveunquestionably determined whether or not the respondent-accused

33(2011) 7 SCCH34(2014) 5 SCC 108

was linked with the crime. Additionally, DNA profiling of the bloodfound on the knife used in the commission of the crime (which therespondent-accused Kishanbhai had allegedly stolen fromDineshbhai Karsanbhai Thakore, PW 6), would haveuncontrovertibly determined, whether or not the said knife hadbeen used for severing the legs of the victim [deleted], to removeher anklets.

12.7.6. In spite of so much advancement in the field offorensic science, the investigating agency seriously erredin not carrying out an effective investigation to genuinelydetermine the culpability of the respondent-accused Kishanbhai.”(Emphasis supplied by us).

53. More recently, in Mukesh and Anr. v. State (NCT of Delhi)[35]there is brief reference to Section 53-A and Section 164-A of theCr.P.C. What is important in this brief reference is the acknowledgmentthat DNA evidence is being increasingly relied upon by courts. It wasobserved in paragraphs 216 and 217 as follows:

“216. In our country also like several other developed anddeveloping countries, DNA evidence is being increasinglyrelied upon by courts. After the amendment in the CriminalProcedure Code by the insertion of Section 53A by Act 25 of2005, DNA profiling has now become party of the statutoryscheme. Section 53A relates to the examination of personaccused of rape by medical practitioner.”

“217. Similarly, under Section 164A inserted by Act 25 of 2005,for medical examination of the victim of rape, the description ofmaterial taken from the person of the woman for DNA profilingis must.” (Emphasis supplied by us).

54. For the prosecution to decline to produce DNA evidence wouldbe little unfortunate particularly when the facility of DNA profiling isavailable in the country. The prosecution would be well advised to takeadvantage of this, particularly in view of the provisions of Section 53-Aand Section 164-A of the Cr.P.C. We are not going to the extent ofsuggesting that if there is no DNA profiling, the prosecution case cannot

Abe proved but we are certainly of the view that where DNA profilinghas not been done or it is held back from the Trial Court, an adverseconsequence would follow for the prosecution.

55. In Mukesh separate opinion was delivered by JusticeBanumathi and in paragraph 455 of the Report it was held that DNABprofiling is an extremely accurate way of comparing specimens andsuch testing can make virtually positive identification. It was stated:

“455. DNA profiling is an extremely accurate way to comparea suspect’s DNA with crime scene specimens, victim’s DNAon the blood-stained clothes of the accused or other articlesCrecovered, DNA testing can make virtually positiveidentification when the two samples match. DNA fingerprint is identical for every part of the body, whether it is the blood,saliva, brain, kidney or foot on any part of the body. It cannot bechanged; it will be identical no matter what is done to body.Even relatively minute quantities of blood, saliva or semen at aDcrime scene or on clothes can yield sufficient material for analysis.The Experts opine that the identification is almost hundred percent precise. Using this i.e. chemical structure of geneticinformation by generating DNA profile of the individual,identification of an individual is done like in the traditional methodEof identifying finger prints of offenders.” (Emphasis supplied byus).

56. In the context of importance of scientific and technologicaladvances having been made, we may recall the observation of this Courtin Selvi v. State of Karnataka[36]in paragraph 220 of the Report thatF“The matching of DNA samples is emerging as vital tool for linkingsuspects to specific criminal acts.”

57. Insofar as the present petitions before us are concerned, thereis no dispute that samples were taken from the body of the accused andsent for DNA profiling. However, the result was not produced beforeGthe Trial Court. There is absolutely no explanation for this and in theabsence of any justification for not producing the DNA evidence, weare of the view that it would be dangerous, on the facts of this case, touphold the sentence of death on the appellant.

Prior history of the convict or criminal antecedents

58. The history of the convict, including recidivism cannot, byitself, be ground for awarding the death sentence. This needs someclarity. There could be situation where convict has previouslycommitted an offence and has been convicted and sentenced for thatoffence. Thereafter, the convict commits second offence for which heis convicted and sentence is required to be awarded. This does not poseany legal challenge or difficulty. But, there could also be situation wherea convict has committed an offence and is under trial for that offence.During the pendency of the trial he commits second offence for whichhe is convicted and in which sentence is required to be awarded.

59. Sections 54 of the Indian Evidence Act, 1872 prohibits the useof previous bad character evidence except when the convict himselfchooses to lead evidence of his good character. The implication of thisclearly is that the past adverse conduct of the convict ought not to betaken into consideration for the purposes of determining the quantum ofsentence, except in specified circumstances.

60. There are exceptions to this general rule. For example, Section376-E of the IPC provides as follows:

“376E. Punishment for repeat offenders. - Whoever has beenpreviously convicted of an offence punishable under Section 376or Section 376-A or Section 376AB, or Section 376D or Section376DA or Section 376DB and is subsequently convicted of anoffence punishable under any of the said sections shall be punishedwith imprisonment for life which shall mean imprisonment for theremainder of that person’s natural life, or with death.”

61. Similarly, Section 16(2) of the Prevention of Food AdulterationAct, 1954 provides as follows:

“16. Penalties. –

(1) xxx xxx xxx

(2) If any person convicted of an offence under this Act commitsa like offence afterwards it shall be lawful for the court beforewhich the second or subsequent conviction takes place to causethe offender’s name and place of residence, the offence and the

Apenalty imposed to be published at the offender’s expense in suchnewspapers or in such other manner as the court may direct. Theexpenses of such publication shall be deemed to be part of thecost attending the conviction and shall be recoverable in the samemanner as fine.”

B62. Finally, it is worthwhile to refer to Section 75 of the IPC whichprovides for enhanced punishment for certain offences under ChapterXII or Chapter XVII of the IPC after previous convictions. This Sectionreads as follows:

“75. Enhanced punishment for certain offences underCChapter XII or Chapter XVII after previous conviction.–Whoever, having been convicted, -

(a) by Court in India, of an offence punishable under ChapterXII or Chapter XVII of this Code with imprisonment of eitherdescription for term of three years or upwards,

Dshall be guilty of any offence punishable under either of thoseChapters with like imprisonment for the like term, shall be subjectfor every such subsequent offence to imprisonment for life, or toimprisonment of either description for term which may extendto ten years.”

E63. The scope of Section 75 of the IPC was discussed in the 42ndReport of the Law Commission of India in the following words:

“[This] is an attempt to deal with the problem of habitual offendersand recidivism. Other penal systems also have tried to grapplewith this complex problem, but nowhere have the attempts metFwith marked success, perhaps because the causes of crime arethemselves complex. Because the previous sentence has failedboth in its object of reforming the offender and in its object ofdeterring him from crime, the law, as measure of last resort,concentrates on protecting society from the offender by sendinghim to jail for longer term than before.”G

64. It is worthwhile to note that the three provisions of law quotedabove deal with instances where there is prior conviction and do notdeal with the pending trial of case involving an offence. Therefore,

while it is possible to grant an enhanced sentence, as provided by statute,for recurrence of the same offence after conviction, the possibility ofgranting an enhanced sentence where the statute is silent does not arise.Consequently, it must be held that in terms of Section 54 of the IndianEvidence Act the antecedents of convict are not relevant for thepurposes of awarding sentence, unless the convict gives evidence ofhis good character.

65. The importance of conviction as against pending trial wasemphasised in Mohd. Farooq Abdul Gafur v. State of Maharashtra[37]wherein the presumption of innocence was adverted to as human rightand it was held in paragraph 178 of the Report:

“178. In our opinion the trial court had wrongly rejected the factthat even though the accused had criminal history, but there hadbeen no criminal conviction against the said three accused. It hadrejected the said argument on the ground that conviction mightnot be possible in each and every criminal trial. In our opinionunless person is proven guilty, he should be presumedinnocent. Further, nothing has been brought on behalf of the Stateeven after all these years, that the criminal trials that had beenpending against the accused had resulted in their conviction. Unlessthe same is shown by the documents on records we would presumeto the contrary. Presumption of innocence is human right.The learned trial Judge should also have presumed the same againstall the three accused. In our opinion the alleged criminal history ofthe accused had major bearing on the imposition of the deathsentence by the trial court on the three accused. That is why inour opinion he had erred in this respect.” (Emphasis supplied byus).

66. However, in Gurmukh Singh v. State of Haryana[38]whilethis Court did not consider or discuss the prior history of the convict as afactor for sentencing, it was noted in paragraph 23 of the Report thatone of the relevant factors for consideration before awarding anappropriate sentence to the convict would be the number of other criminalcases pending against him. In our opinion, this does not lay down thecorrect law since it overlooks the presumption of innocence. It was heldin paragraph 23 of the Report as follows:

“23. These are some factors which are required to be taken intoconsideration before awarding appropriate sentence to theaccused. These factors are only illustrative in character and notexhaustive. Each case has to be seen from its special perspective.The relevant factors are as under:

B(a) to (j) xxx xxx xxx

(k) Number of other criminal cases pending against the accused;

(l) to (m) xxx xxx

These are some of the factors which can be taken intoCconsideration while granting an appropriate sentence to theaccused.” (Emphasis supplied by us).

67. In Bantu v. State of M.P.[39]this Court noted that there wasnothing on record to indicate that the appellant had any criminalantecedents nor could it be said that he would be grave danger to theDsociety at large despite the fact that the crime committed by him washeinous. It was held in paragraph 8 of the Report as follows:

“8. However, the learned counsel for the appellant submitted thatin any set of circumstances, this is not the rarest of the rare casewhere the accused is to be sentenced to death. He submitted thatage of the accused on the relevant day was less than 22 years. ItEis his submission that even though the act is heinous, consideringthe fact that no injuries were found on the deceased, it is probablethat death might have occurred because of gagging her mouthand nosetrix [nostril] by the accused at the time of incident so thatshe may not raise hue and cry. The death, according to him,Fwas accidental and an unintentional one. In the present case,there is nothing on record to indicate that the appellantwas having any criminal record nor can it be said that hewill be grave danger to the society at large. It is true thathis act is heinous and requires to be condemned but at thesame time it cannot be said that it is the rarest of the rareGcase where the accused requires to be eliminated from thesociety. Hence, there is no justifiable reason to impose the deathsentence.” (Emphasis supplied by us).68. In Amit v. State of Maharashtra[40]this Court adverted to theprior history of the appellant and noted that there is no record of anyprevious heinous crime and also there is no evidence that he would be adanger to society if the death penalty is not awarded to him. It was heldin paragraph 10 of the Report:

“10. The next question is of the sentence. Considering that theappellant is young man, at the time of the incident his age wasabout 20 years; he was student; there is no record of anyprevious heinous crime and also there is no evidence thathe will be danger to the society, if the death penalty is notawarded. Though the offence committed by the appellant deservessevere condemnation and is most heinous crime, but on cumulativefacts and circumstances of the case, we do not think that thecase falls in the category of rarest of the rare cases…….”(Emphasis supplied by us).

69. In the case of Rahul v. State of Maharashtra[41] this Courtnoted that there was no adverse report about the conduct of the appellanttherein either by the jail authorities or by the probationary officer andthat he had no previous criminal record or at least nothing was broughtto the notice of the Court. It was observed in paragraph 4 of the Reportas follows:

“4. We have considered all the relevant aspects of the case. It istrue that the appellant committed serious crime in very ghastlymanner but the fact that he was aged 24 years at the time of thecrime, has to be taken note of. Even though, the appellant hadbeen in custody since 27-11-1999 we are not furnished with anyreport regarding the appellant either by any probationary officeror by the jail authorities. The appellant had no previous criminalrecord, and nothing was brought to the notice of the Court.It cannot be said that he would be menace to the society infuture. Considering the age of the appellant and othercircumstances, we do not think that the penalty of death beimposed on him.” (Emphasis supplied by us).

41(2005) 10 SCC 322

A70. Similarly, in Surendra Pal Shivbalakpal v. State of Gujarat[42]the absence of any involvement in any previous criminal case wasconsidered to be factor to be taken into consideration for the purposesof awarding the sentence to the appellant therein. It was held in paragraph13 of the Report as follows:B“13. The next question that arises for consideration is whetherthis is “rarest of rare case”; we do not think that this is “rarestof rare case” in which death penalty should be imposed on theappellant. The appellant was aged 36 years at the time of theoccurrence and there is no evidence that the appellant hadbeen involved in any other criminal case previously andCthe appellant was migrant labourer from U.P. and was livingin impecunious circumstances and it cannot be said that hewould be menace to society in future and no materials areplaced before us to draw such conclusion. We do not thinkthat the death penalty was warranted in this case. We confirmDconviction of the appellant on all the counts, but the sentence ofdeath penalty imposed on him for the offence under Section 302IPC is commuted to life imprisonment.” (Emphasis supplied byus).

71. The importance and significance of conviction as against aEpending trial was the subject matter of discussion in the Supreme Courtof Canada. In Her Majesty The Queen v. Norman Skolnick[43] Coke’sInstitutes was partially “modified” to the effect that person cannot besentenced for the third offence before he has been convicted of thesecond offence; nor can that person be sentenced for the second offencebefore he has been convicted for the first offence. The second offenceFmust be committed after the first conviction and the third offence mustbe committed after the second conviction. The principle appears to bethat the accused does not face the jeopardy of an increased penaltyunless he has previously been convicted and sentenced.72. Similarly, the Supreme Court of the Northern Territory ofGAustralia in Scott Nathan Schluter v. Robin Laurence Trenerry[44] tookthe view that escalating the period of actual imprisonment could be justified

42(2005) 3 SCC 12743[1982] 2 SCR 47H44(1997) 6 NTLR 194

if there is second finding of guilt. If that second finding of guilt ismissing then there “would be no opportunity for the multiple offender,not previously charged, to become aware of the certainty of the severityof punishment for the proscribed criminal behaviour.”

73. It is therefore quite clear from the various decisions placedbefore us that the mere pendency of one or more criminal cases againsta convict cannot be factor for consideration while awarding sentence.Not only is it statutorily impermissible (except in some cases) but evenotherwise it violates the fundamental presumption of innocence – ahuman right - that everyone is entitled to.

74. Insofar as the present case is concerned, it has come on recordthat there are two cases pending against the appellant for similar offences.Both these were pending trial. Notwithstanding this, the Trial Judge tookthis into account as circumstance against the appellant. It would havebeen, in our opinion, far more appropriate for the Sessions Judge to havewaited, if he thought it necessary to take the pendency of these casesinto consideration, for the trials to be concluded. For ought we know,the two cases might have been foisted upon the appellant and he mighthave otherwise been proved not guilty.

75. We may generally mention, in conclusion, that there is reallyno reason for the Trial Judge to be in haste in awarding sentence in acase where he might be considering death penalty on the ground thatany other alternative option is unquestionably foreclosed. The convictwould in any case remain in custody for fairly long time since theminimum punishment awarded would be imprisonment for life. Therefore,a Trial Judge can take his time and sentence the convict after givingadequate opportunity for the prosecution as well as for the defence toproduce material as postulated in Bachan Singh so that the possibilityof awarding life sentence is open to the Trial Judge as against the deathsentence. It must be appreciated that sentence of death should beawarded only in the rarest of rare cases, only if an alternative option isunquestionably foreclosed and only after full consideration of all factorskeeping in mind that sentence of death is irrevocable and irretrievableupon execution. It should always be remembered that while the crime isimportant, the criminal is equally important insofar as the sentencingprocess is concerned. In other words, courts must “make assurancedouble sure”.[45]

45Shakespeare’s Macbeth, Act IV, Scene i

A76. We may note here, by way of post script that during thecourse of submissions, it was stated by learned counsel for the appellantthat in the meanwhile the appellant had been convicted in one of thepending cases, that is, State of Maharashtra v. Raju @ Rajendrajudgement Wasnik (S.T. No. 162 of 2007). This case was decided bythe Sessions Judge, Amravati, Maharashtra on 18th April, 2016. TheBTrial Judge imposed sentence of imprisonment for life on the appellantupon his conviction, while taking note that in the present case, the appellanthad been awarded the death sentence.

77. perusal of the website of the eCourts Project of theeCommittee of the Supreme Court revealed that in fact there were aCtotal of four cases against the appellant, including the one that we aredealing with. In paragraph 38 of the decision rendered by the SessionsJudge in S.T. No. 162 of 2007 it was recorded as follows:

“[38] The victim of this crime was aged about 9 to 10 years oldand prosecution proved that the accused committed rape on her.It appears from the facts and circumstances and record that inCrime No.23/2007 of police station Kholapurigate, Amravati(S.T.No.183/2007) the accused was convicted and sentenced todeath for the offence punishable under sections 302, 376(2)(f)and 377 of Indian Penal Code. He is also convicted in CrimeNo.31/2007 of police station Daryapur (S.T.No.112/2007) and heis sentenced to suffer imprisonment for life for the offencepunishable under section 376(2)(f) of Indian Penal Code. He isalso convicted in Crime No.21/2006 of police station Chikhaldara,District Amravati (S.T.No.66/2007) and he is sentenced to sufferimprisonment for life for the offence punishable under sections363, 366, 376(2)(f), 302 and 201 of Indian Penal Code. The deathsentence in S.T.No.183/2007 is confirmed up to the Hon’bleSupreme Court of India and it appears that the Mercy Petitionfiled by the accused also came to be rejected by the Hon’blePresident of India. The accused committed the offence of samenature i.e. rape on minor and innocent girl. It is his 4th offence ofsame nature in which the offence under sections 363, 366 and376(2)(f) of Indian Penal Code is proved against the accused. Itappears that the accused is in habit to commit rape on minor girl.

Taking in to consideration the gravity of offence and the facts andcircumstances, I am of the opinion that the accused is not deservedfor leniency and according to me, the following punishment wouldmeet the ends of justice…….”

We have not been informed whether the conviction orders passedagainst the appellant have been set aside or not. We are thereforeproceeding on the basis that the appellant has been awarded sentenceof death in the present case and sentence of imprisonment for life inthe three other cases decided against him, subject to any order passedby the appellate court.

78. We must however express our shock and anguish that theappellant had the opportunity to commit the offences alleged against himon more than one occasion. This could have been possible only if theappellant had been on bail and our shock and anguish is that in thebackground of the facts before us, the appellant was actually grantedbail.

Conclusion

79. Insofar as the present petition is concerned, we are of opinionthat for the purposes of sentencing, the Sessions Judge, the High Courtas well as this Court did not take into consideration the probability ofreformation, rehabilitation and social re-integration of the appellant intosociety. Indeed, no material or evidence was placed before the courts toarrive at any conclusion in this regard one way or the other and forwhatever it is worth on the facts of this case. The prosecution wasremiss in not producing the available DNA evidence and the failure toproduce material evidence must lead to an adverse presumption againstthe prosecution and in favour of the appellant for the purposes ofsentencing. The Trial Court was also in error in taking into consideration,for the purposes of sentencing, the pendency of two similar cases againstthe appellant which it could not, in law, consider. However, we alsocannot overlook subsequent developments with regard to the two (actuallythree) similar cases against the appellant.

80. For all these reasons, we are of opinion that it would be moreappropriate looking to the crimes committed by the appellant and the

Amaterial on record including his overall personality and subsequent events,to commute the sentence of death awarded to the appellant but directthat he should not be released from custody for the rest of his normallife. We order accordingly.

81. The petitions stand disposed of accordingly.

Divya Pandey

Review petitions disposed of.