MD MANNAN @ ABDUL MANNAN versus STATE OF BIHAR

[2019] 8 S.C.R.

MD. MANNAN @ ABDUL MANNAN

STATE OF BIHAR

(Review Petition (Criminal) No. 308 of 2011)

(Criminal Appeal No.379 of 2009)

FEBRUARY 14, 2019

[N. V. RAMANA AND MOHAN M. SHANTANAGOUDARCAND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973: s.235(2) – Hearing onquestion of sentence – Death sentence – Right of convict – Held:Opportunity should be given to convict to bring on recordmitigating circumstances for reduction of the sentence and balanceDshould be struck between the aggravating and the mitigatingcircumstance – In the instant case, the petitioner did not get thebenefit of competent legal assistance – Trial Court also did notmake any attempt to elicit materials relevant to the imposition ofdeath sentence – No affidavit was called for – The question ofwhether there were any mitigating circumstances was not addressedEby the Trial Court or the appellate courts – Even though the hearingunder s.235(2) on the question of sentence was fixed on 31.5.2007,that is, two days after pronouncement of the judgment and order ofconviction of the petitioner, on 29.5.2007, the hearing was preponedto 29.5.2007 itself after the petitioner was produced from jail custodyFand death sentence was imposed – Preponement by the Trial Courtof hearing under s.235(2) at short notice, which is in effect, nonotice, appears to have denied the petitioner an effective hearing –Hearing.

Review: Rape and murder of eight years old girl – ConvictionGunder ss.376 and 302 and death sentence – Concurrent finding oftrial court and High Court – Special leave petition against the samedismissed – Review petition also dismissed – Second review petitionfiled in view of Constitution Bench decision in Mohd. Arif case –Held: Review petition, filed about eight years ago, was dismissedby circulation on 24.08.2011 – Even thereafter, for almost three

years the death sentence was not executed – The instant applicationfor reopening the review and hearing the same in Open Court, hasalso been pending for over four years – In view of decision inMohd. Arif case, the petitioner is entitled to have the application forreview which was dismissed by circulation, reopened and heard inopen court.

Sentence/Sentencing: Death sentence – Prayer forcommutation – Rape and murder of eight years old girl – Convictionunder ss.376 and 302 IPC and death sentence – Concurrent findingof trial court and High Court – Special leave petition against thesame dismissed – Review petition – Review restricted to question ofcommutation of sentence – Held: Death sentence is imposed in therarest of rare cases, for which special reasons have to be recorded,as mandated in s.354(3) CrPC – In deciding whether case fallswithin the category of the rarest of rare, the brutality, and/or thegruesome and/or heinous nature of the crime is not the sole criterion– The Court is to also take into consideration, the state of his mind,his socio-economic background, etc. – Therefore, before imposingthe extreme penalty of death sentence, the Court would have tosatisfy itself that death sentence is imperative, as otherwise theconvict would be threat to society – The Court has to furthersatisfy itself that there is no possibility of reform or rehabilitation ofthe convict – In this case, an eight year old innocent girl fell prey tothe carnal desire and lust of the petitioner – The conviction wasbased on circumstantial evidence and extra judicial confession madeby the petitioner to the police in course of investigation – It was notknown whether there was any pre-meditation on the part of thepetitioner to murder the victim – No doubt, the crime was abhorrent,but it is doubtful as to whether the crime committed by the petitionercan be termed as “rarest of the rare” – The petitioner has for allthese years virtually been in solitary confinement – Medical evidencerevealed that he was not mentally sound – The mental health of thepetitioner at the time of execution is relevant mitigating factorwhich must be taken into consideration in the instant case –Therefore, it is not appropriate to affirm the death sentence – Thedeath sentence imposed on the petitioner is commuted to lifeimprisonment, till his natural death, without reprieve or remission –Administration of criminal justice – Hearing – Code of CriminalProcedure, 1973 – s.354(3) – Penal Code, 1860 – ss.376 and 302.

Code of Criminal Procedure, 1973: s.235(2) – For effectivehearing under s.235(2), the suggestion that the court intends toimpose death penalty should specifically be made to the accused,to enable the accused to make an effective representation againstdeath sentence, by placing mitigating circumstances before the Court– Penal Code, 1860 – ss.376 and 302 – Hearing.

Administration of criminal justice: Legal assistance to theconvict – Held: The legal assistance provided to the convict at everystage including the stage of hearing on the question of sentencehas to be effective and even if the accused has remained silent, theCourt would be obliged and duty bound to elicit relevant factors –CCode of Criminal Procedure, 1973

Prisons: It is well recognised worldwide, that owing to thedifficult circumstances prevailing in prisons, such as, enforcedsolitude, inadequate health care, loss of livelihood etc., prisonersoften develop mental illness after their admission into prison – TheDrelevant Prison Rules also recognise the phenomenon of post-conviction mental illness and state that the execution of such personsshall be deferred, pending orders of the Government – Administrationof criminal justice.

Mohd. Arif v. The Registrar of the Supreme Court (2014)E9 SCC 737: [2014] 11 SCR 1009; Bachan Singh v.State of Punjab (1980) 2 SCC 684; Rajesh Kumar v.State (through Govt. of NCT of Delhi) (2011) 13 SCC706; Santa Singh v. State of Punjab (1976) 4 SCC190: [1977] 1 SCR 229; Dagdu and Others v. State ofFMaharashtra (1977) 3 SCC 68 : [1977] 3 SCR 636;Machhi Singh & Others v. State of Punjab (1983) 3SCC 470 : [1983] 3SCR 413;Santosh KumarSatishbhushan Bariyar v. State of Maharashtra(2009) 6 SCC 498: [2009] 9 SCR 90;Ajay Pandit andAnother v. State of Maharashtra (2012) 8 SCC 43:G[2012] 10 SCR 70;Mohinder Singh v. State of Punjab(2013) 3 SCC 294 : [2013] 3 SCR 90;Panchhi andOthers v. State of U.P. (1998) 7 SCC 177: [1998] 1Suppl. SCR 40;Mukesh and Another v. State (NCT ofDelhi) and Others (2017) 3 SCC 717;Haru Ghosh v.State of W.B.(2009) 15 SCC 551:[2009] (13) SCR 847;

Lehna v. State of Haryana (2002) 3 SCC 76: [2002] 1SCR 377; Shatrughan Chauhan and Anr. v. Union ofIndia & Ors. (2014) 3 SCC 1 : :[2014] 1 SCR 609;Sunil Batra v. Delhi Administration & Ors. (1978) 4SCC 494 : [1979] 1 SCR 392 ;Birju v. State of MadhyaPradesh (2014) 3 SCC 421 : [2014] 1 SCR 1047;Ramesh and Others v. State of Rajasthan (2011) 3 SCC685: [2011] 4 SCR 585;Ram Deo Prasad v. State ofBihar (2013) 7 SCC 725 : [2013] 6 SCR 108; SushilSharma v. State (NCT of Delhi) (2014) 4 SCC 317:[2013] 16 SCR 616; Swamy Shraddananda (2) @Murali Manohar Mishra v. State of Karnataka (2008)13 SCC 767 : [2008] 11 SCR 93;Sebastian @Chevithiyan v. State of Kerala (2010) 1 SCC 58;Navneet Kaur v. State (NCT of Delhi) and Another(2014) 7 SCC 264; Mulla and Another v. State of U.P.(2010) 3 SCC 508: [2010] 2 SCR 633 – relied on.

Case Law Reference

[2019] 8 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Review Petition(Criminal) No. 308 of 2011 in Criminal Appeal No. 379 of 2009

From the Judgment and Order dated 20.04.2011 of the SupremeCourt of India in Criminal Appeal No. 379 of 2009

Ms. Nitya Ramakrishnan, Shadan Farasat, Yash S. Vijay, NinniSusan Thomas, Saaduzzman, Ms.Shruti Narayan, Ms. Jahnavi Sindhu,Advs. for the Petitioner.

Devashish Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George,Aditya Singala, Manu Rajvanshi, M. Shoeb Alam, Advs. for theRespondents.

The following Order of the Court was passed:

1. This application is for reopening the Review Petition (Crl.)No.308 of 2011 and for review of the final judgment and order dated20.04.2011 passed by this Court dismissing Criminal Appeal No.379 of2009 filed by the review petitioner and confirming his conviction, interGalia, under Section 201, 366A, 376 and 302 of the Indian Penal Code(IPC) and, inter alia, affirming the death sentence imposed on himunder Section 302 of the IPC.

2. It appears that the petitioner, mason, was engaged at theresidence of the deceased victim’s grand father. On 28.9.2004 at about

2.00 p.m., the petitioner gave money to the victim to bring betel for himfrom Hanuman Chowk. little while later the petitioner also went toHanuman Chowk, picked up the victim, an eight year old girl, on hisbicycle and left talking with her. The victim and the petitioner wereseen together by witnesses.

3. The victim did not return home, whereupon frantic searcheswere made. The victim was not found. It was learnt that the victimhad been last seen with the petitioner.

4. The officer in-charge of Bahera Police Station, under whichthe village of the petitioner falls, was informed that the victim was missing.In course of investigation the petitioner, who had earlier been identifiedas the man with whom the victim had last been seen, riding on bicycle,allegedly made confessional statement in the presence of witnesses,confessing that he had raped and murdered the victim. The confessionalstatement was signed by the petitioner.

5. The petitioner is alleged to have disclosed the place where hehad raped and killed the victim. It is the case of the prosecution, that onthe basis of information given by the petitioner, the Investigating Officerwent to the village Izaar Haat Bandh, where the dead body of the victimwas recovered from the spot shown by the petitioner, amidst wheat and‘arahar’ fields.

6. The dead body was identified as that of the victim. The doctorwho conducted the post mortem opined that death was due to asphyxiaand haemorrhage as result of strangulation within 8 to 24 hours fromthe time of post mortem examination. The doctor also deposed thatupon examination the vaginal swab collected from the victim showed“few intact spermatozoa”. The medical evidence clearly established thatthe victim had been raped and murdered. However no DNA analysis ofthe spermatozoa was conducted by the prosecution.7. By judgment and order rendered on 29.5.2007 in SessionsTrial No.220/2004 arising out of GR No. 325/2004 Manigachi P. S. CaseNo.13 of 2004, the Additional District and Sessions Judge (Fast TrackCourt) No.30, on consideration of the evidence on record, held thepetitioner guilty of charges under Sections 366A, 376, 302 and 201 ofIPC. On the same day after hearing the applicant on the question ofsentence, the Fast Track Court sentenced the petitioner to undergorigorous imprisonment for 10 years for charge under Section 366A IPC,

Arigorous imprisonment for life for charge under Section 376 IPC, rigorousimprisonment for 7 years for charge under Section 201 IPC and deathsentence for charge under Section 302 IPC. All the sentences exceptthe sentence for the charge under Section 302 IPC were to runconcurrently till execution of the death sentence under Section 302 IPC,whereby the convict was to be hanged by the neck till his death.B

8. The learned Additional District and Sessions Judge, Fast Trackcourt directed that the proceedings of the case be transmitted to theHigh Court of Judicature at Patna for confirmation of the death sentence.The petitioner filed an appeal being Criminal Appeal (DB) No.963 of2007 in the High Court against his conviction and sentence.

9. The death sentence reference being Death Reference No.6 of2007 was heard by the Division Bench of the High Court along with theCriminal Appeal (DB) No. 963 of 2007. The Division Bench, afterconsidering the materials on record, arrived at the finding that the chargesagainst the petitioner under Sections 366A, 376, 302 and 201 had beenDproved beyond doubt and upheld the conviction. The appeal wasdismissed and the death penalty awarded to the petitioner by the TrialCourt was confirmed.

10. The petitioner filed Special Leave Petition in this Court toappeal against the judgment and order of the High Court. Leave wasEduly granted.

11. The appeal being Criminal Appeal No.379 of 2009 wasdismissed by this Court, by the judgment and order dated 20.4.2011, ofwhich review has been sought, and the death sentence confirmed withthe observation that the case fell in the category of the rarest of rareFcases.

12. The petitioner filed petition for review of the said judgmentand order dated 20.4.2011. The said review petition was dismissed bycirculation by the same two judges on 24.8.2011.

13. By judgment and order dated 2.9.2014 in W.P. (Crl.) No. 77Gof 2014 (Mohd. Arif v. The Registrar of the Supreme Court[1]), aConstitution Bench of this Court held that, that review petitions in casesof death sentences should be heard in Open Court, by three-Judge

1(2014) 9 SCC 737

Bench. The Constitution Bench specifically permitted the reopening ofreview petitions in all cases where review petitions had been dismissedby circulation.

14. There can be no doubt that in view of the judgment of thisCourt in Mohd. Arif (supra) the petitioner is entitled to have the applicationfor review, which had been dismissed by circulation, reopened and heardin Open Court.

15. In this petition for review we need not consider the merits ofthe case, there being concurrent findings of the Trial Court, the HighCourt and of this Court. This review is only restricted to the question ofwhether death sentence should be commuted to life imprisonment.

16. In Bachan Singh vs. State of Punjab[2], this Court, whileupholding the validity of death sentence held, that imprisonment for lifewas the rule and death sentence an exception, to be imposed in the“rarest of rare” cases, recording special reasons. In Bachan Singh(supra), this Court in effect held that before exercising discretion toimpose the extreme penalty of death sentence, aggravating and mitigatingcircumstances are required to be considered. Some of the mitigatingfactors would be the extreme mental or emotional disturbance in whichthe offence might have been committed, the possibility that the accusedwould not be continuing threat to society, the possibility of reformationand rehabilitation of the accused, mental defect or disorder of the accusedetc.

17.In Rajesh Kumar vs. State (through Govt. of NCT ofDelhi)[3], this Court observed:-

“83. The ratio in Bachan Singh has received approval by theinternational legal community and has been very favourablyreferred to by David Pannick in Judicial Review of the DeathPenalty: Duckworth (see pp. 104-05). Roger Hood andCarolyn Hoyle in their treatise on The Death Penalty, 4th Edn.(Oxford) have also very much appreciated the Bachan Singhratio (see p. 285). The concept of “rarest of rare” which hasbeen evolved in Bachan Singh by this Court is also theinternationally accepted standard in cases of death penalty.

2(1980) 2 SCC 684

3(2011) 13 SCC 706

84. Reference in this connection may also be made to the rightbased approach in exercising discretion in death penalty assuggested by Edward Fitzgerald, the British Barrister. [EdwardFitzgerald: The Mitigating Exercise in Capital Cases in DeathPenalty Conference (3-5 June), Barbados: Conference Papersand Recommendations.] It has been suggested therein thatright approach towards exercising discretion in capital casesis to start from strong presumption against the death penalty.It is argued that “the presence of any significant mitigatingfactor justifies exemption from the death penalty even in themost gruesome cases” and Fitzgerald argues:

“Such restrictive approach can be summarised as follows:The normal sentence should be life imprisonment. The deathsentence should only be imposed instead of the life sentencein the ‘rarest of rare’ cases where the crime or crimes are ofexceptional heinousness and the individual has no significantmitigation and is considered beyond reformation.”

(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th Edn., Oxford, p. 285.)

86. Taking an overall view of the facts in these appeals andfor the reasons discussed above, we hold that death sentencecannot be inflicted on the appellant since the dictum of theConstitution Bench in Bachan Singh is that the legislativepolicy in Section 354(3) of the 1973 Code is that for personconvicted of murder, life imprisonment is the rule and deathsentence, an exception, and the mitigating circumstances mustbe given due consideration. Bachan Singh further mandatesthat in considering the question of sentence the court mustshow real and abiding concern for the dignity of humanlife which must postulate resistance to taking life through law’sinstrumentality. Except in the “rarest of rare cases” and for“special reasons” death sentence cannot be imposed as analternative option to the imposition of life sentence”.

18. In Rajesh Kumar (supra), the accused was convicted ofassault and murder of two helpless children in the most gruesome manner.This Court held that death sentence could not be inflicted, reiterating

that life imprisonment was the rule and death sentence an exceptiononly to be imosed in the “rarest of rare cases” and for “special reasons”when there were no mitigating circumstances.

19. Section 235 of the Criminal Procedure Code (Cr.P.C.), readsas follows:-

“235. Judgment of acquittal or conviction.—(1) After hearingarguments and points of law (if any), the Judge shall give ajudgment in the case.

(2) If the accused is convicted, the Judge shall, unless heproceeds in accordance with the provisions of Section 360,hear the accused on the question of sentence, and then passsentence on him according to law.”

20. Section 235 (2) of the CrPC is not mere formality. It isobligatory on the part of the learned trial Judge to hear the accused onthe question of sentence and deal with it. To quote Bhagwati J. in SantaSingh vs. State of Punjab[4].

“2. …...This provision is clear and explicit and does not admitof any doubt. It requires that in every trial before court ofsessions, there must first be decision as to the guilt of theaccused. The court must, in the first instance, deliver ajudgment convicting or acquitting the accused. If the accusedis acquitted, no further question arises. But if he is convicted,then the court has to “hear the accused on the question ofsentence, and then pass sentence on him according to law”.When judgment is rendered convicting the accused, he is,at that stage, to be given an opportunity to be heard in regardto the sentence and it is only after hearing him that the courtcan proceed to pass the sentence.

3. This new provision in Section 235(2) is in consonance withthe modern trends in penology and sentencing procedures.There was no such provision in the old Code. Under the oldCode, whatever the accused wished to submit in regard to thesentence had to be stated by him before the argumentssconcluded and the judgment was delivered. There was noseparate stage for being heard in regard to sentence. The

accused had to produce material and make his submissionsin regard to sentence on the assumption that he was ultimatelygoing to be convicted. This was most unsatisfactory. Thelegislature, therefore, decided that it is only when the accusedis convicted that the question of sentence should come up forconsideration and at that stage, an opportunity should begiven to the accused to be heard in regard to the sentence.Moreover, it was realised that sentencing is an important stagein the process of administration of criminal justice- asimportant as the adjudication of guilt-and it should not beconsigned to subsidiary position as if it were matter ofnot much consequence. It should be matter of some anxietyto the court to impose an appropriate punishment on thecriminal and sentencing should, therefore, receive seriousattention of the court.…..The reason is that proper sentence is the amalgam ofmany factors such as the nature of the offence, thecircumstances-extenuating or aggravating- of the offence, theprior criminal record, if any, of the offender, the age of theoffender, the record of the offender as to employment, thebackground of the offender with reference to education, homelife, sobreity and social adjustment, the emotional and mentalcondition of ‘the offender, the prospects for the rehabilitationof the offender, the possibility of treatment or training of theoffender, the possibility that the sentence may serve as adeterrent to crime by the offender or by others and the currentcommunity need, if any, for such deterrent in respect to theparticular type of offence. These are factors which have tobe taken into account by the court in deciding upon theappropriate sentence, and, therefore, the legislature felt that,for this purpose, separate stage should be provided afterconviction when the court can hear the accused in regard tothese factors bearing on sentence and then pass propersentence on the accused.

4. ….The hearing on the question of sentence, would berendered devoid of all meaning and content and it wouldbecome an idle formality, if it were confined merely to hearingoral submissions without any opportunity being given to the

parties and particularly to the accused, to produce materialin regard to various factors bearing on the question ofsentence, and if necessary, to lead evidence for the purposeof placing such material before the court.

21. In Santa Singh (supra), Bhagwati, J. set aside the sentenceof death and remanded the case to the Sessions Court with direction topass appropriate sentence after giving an opportunity to the petitioner inthe aforesaid case of being heard with regard to the question of sentence,in accordance with the provisions of Section 235(2) CrPC as interpretedin Santa Singh (supra).

22. In Dagdu and Others vs. State of Maharashtra[5], three-Judge Bench of this Court referred to Santa Singh (supra) and heldthat the mandate of Section 235(2) CrPC had to be obeyed in letter andspirit. Chandrachud, J. held:-

“79. … The Court, on convicting an accused, mustunquestionably hear him on the question of sentence. But if,for any reason, it omits to do so and the accused makes agrievance of it in the higher court, it would be open to thatCourt to remedy the breach by giving hearing to the accusedon the question of sentence. That opportunity has to be realand effective, which means that the accused must be permittedto adduce before the Court all the data which he desires toadduce on the question of sentence. The accused may exercisethat right either by instructing his counsel to make oralsubmissions to the Court or he may, on affidavit or otherwise,place in writing before the Court whatever he desires to placebefore it on the question of sentence. The Court may, inappropriate cases, have to adjourn the matter in order togive to the accused sufficient time to produce the necessarydata and to make his contentions on the question of sentence.That, perhaps, must inevitably happen where the convictionis recorded for the first time by higher court.”

23. In Machhi Singh & Others vs. State of Punjab[6], this Courtheld:-

“38. … (iv) balance sheet of aggravating and mitigatingcircumstanceshas to be drawn up and in doing so the5 (1977) 3 SCC 68

6(1983) 3 SCC 470

mitigating circumstances haveto be accorded fullweightage and just balance has to be struck between theaggravating and the mitigating circumstances before theoption is exercised.”

24. In Santosh Kumar Satishbhushan Bariyar vs. State ofBMaharashtra[7], this Court observed and held:-

“157. The doctrine of proportionality, which appears to bethe premise whereupon the learned trial Judge as also theHigh Court laid its foundation for awarding death penaltyon the appellant herein, provides for justifiable reasoningfor awarding death penalty. However, while imposing anysentence on the accused the court must also keep in mind thedoctrine of rehabilitation. This, considering Section 354(3)of the Code, is especially so in the cases where the court is todetermine whether the case at hand falls within the rarest ofthe rare case.

158. The reasons assigned by the courts below, in our opinion,do not satisfy Bachan Singh test. Section 354(3) of the Codeprovides for an exception. General rule of doctrine ofproportionality, therefore, would not apply. We must read thesaid provision in the light of Article 21 of the Constitution ofIndia. Law laid down by Bachan Singh and Machhi Singhinterpreting Section 354(3) of the Code should be taken tobe part of our constitutional scheme.

159. Although the Constitutional Bench judgment of theSupreme Court in Bachan Singh did not lay down anyguidelines on determining which cases fall within the “rarestof rare” category, yet the mitigating circumstances listed inand endorsed by the judgment give reform and rehabilitationgreat importance, even requiring the State to prove that thiswould not be possible, as precondition before the courtawarded death sentence. We cannot therefore determinepunishment on grounds of proportionality alone. There isnothing before us that shows that the appellant cannot reformand be rehabilitated.

162. Further indisputably, the manner and method of disposalof the dead body of the deceased was abhorrent and goes along way in making the present case most foul anddespicable case of murder. However, we are of the opinion,that the mere mode of disposal of dead body may not byitself be made the ground for inclusion of case in the “rarestof rare” category for the purpose of imposition of the deathsentence. It may have to be considered with several otherfactors.

25. In Ajay Pandit and Another vs. State of Maharashtra[8],this Court held:-

“47. Awarding death sentence is an exception, not the rule,and only in the rarest of rare cases, the court could awarddeath sentence. The state of mind of person awaiting deathsentence and the state of mind of person who has beenawarded life sentence may not be the same mentally andpsychologically. The court has got duty and obligation toelicit relevant facts even if the accused has kept totally silentin such situations. In the instant case, the High Court has notaddressed the issue in the correct perspective bearing in mindthose relevant factors, while questioning the accused and,therefore, committed gross error of procedure in not properlyassimilating and understanding the purpose and objectbehind Section 235(2) CrPC.”

26. In Mohinder Singh vs. State of Punjab[9], this Court held:-

“22. The doctrine of “rarest of rare” confines two aspectsand when both the aspects are satisfied only then the deathpenalty can be imposed. Firstly, the case must clearly fallwithin the ambit of “rarest of rare” and secondly, when thealternative option is unquestionably foreclosed. Bachan Singhsuggested selection of death punishment as the penalty oflast resort when, alternative punishment of life imprisonmentwill be futile and serves no purpose.

23. In life sentence, there is possibility of achievingdeterrence, rehabilitation and retribution in different degrees.

8 (2012) 8 SCC 43

9 (2013) 3 SCC 294

ABut the same does not hold true for the death penalty. It isunique in its absolute rejection of the potential of convict torehabilitate and reform. It extinguishes life and therebyterminates the being, therefore, puts an end to anything to dowith life. This is the big difference between two punishments.Thus, before imposing death penalty, it is imperative toBconsider the same. The “rarest of rare” dictum, as discussedabove, hints at this difference between death punishment andthe alternative punishment of life imprisonment. The relevantquestion here would be to determine whether life imprisonmentas punishment would be pointless and completely devoid ofCany reason in the facts and circumstances of the case. Asdiscussed above, life imprisonment can be said to becompletely futile, only when the sentencing aim of reformationcan be said to be unachievable. Therefore, for satisfying thesecond aspect to the “rarest of rare” doctrine, the court willhave to provide clear evidence as to why the convict is not fitDfor any kind of reformatory and rehabilitation scheme”.

27. In Panchhi and Others vs. State of U.P.[10], this Courtobserved:-

“20. … No doubt brutality looms large in the murders in thiscase particularly of the old and also the tender-aged child. ItEmay be that the manner in which the killings were perpetratedmay not by itself show any lighter side but that is not verypeculiar or very special in these killings. Brutality of themanner in which murder was perpetrated may be groundbut not the sole criterion for judging whether the case is oneFof the ‘rarest of rare cases’ as indicated in Bachan Singhcase.”

28. In Mukesh and Another v. State (NCT of Delhi) andOthers[11], three-Judge Bench of this Court considered the earlierjudgments of this Court referred to above and deemed it appropriate togive opportunity to the accused to file affidavits to bring on recordGmitigating circumstances for reduction of the sentence.

29. In Haru Ghosh v. State of W.B.[12], this Court commuted deathsentence to life imprisonment in case of dastardly murder of two10(1998) 7 SCC 17711(2017) 3 SCC 717H12(2009) 15 SCC 551

helpless persons for no fault of theirs. This Court, however, in commutingdeath sentence took into consideration the following factors:-

i. There was no pre-mediation on the part of the accused;

ii.The act was on the spur of the moment;

iii. The accused was not armed with any weapon;

iv. It was unknown under what circumstances the accused hadentered the house of the deceased and what prompted him to assault theboy; and

v. The cruel manner in which the murder was committed couldnot be the guiding factor and the accused himself had two minor children.

30. In Haru Ghosh (supra), this Court observed, “….the cruelmanner in which the murder was committed and the subsequentaction on the part of the accused in severing the parts of the bodyof the deceased, do not by themselves become the guiding factor infavour of death sentence.”

31. In Lehna v. State of Haryana[13], this Court observed andheld that the mental condition of the accused which led to the assaultcould not be ignored, though the same may not be relevant to judgeculpability. It is certainly factor while considering the question ofsentence.

32. In the aforesaid case even though three lives had been lost byreason of the crime, this Court modified the punishment by commutingdeath sentence to life imprisonment, observing that there was no evidenceof any diabolic planning to commit the crime, though the act was cruel.

33. Learned counsel appearing on behalf of the applicant submittedthat since his arrest on 28.2.2004 the applicant has undergone about 15years in custody and 11 years as convict sentenced to death, lodged invirtual solitary confinement in single cell high security ward in BhagalpurPrison in Bihar.

34. In Shatrughan Chauhan and Anr. vs. Union of India &Ors.[14], this Court considered and discussed the possibility of condemnedconvicts, who are sentenced to death developing mental disorder, uponreference to relevant provisions of the U.P. Jail Manual and similarprovisions of other jail manuals. This Court observed:

13(2002) 3 SCC 7614 (2014) 3 SCC 1

A“86. The above materials, particularly, the directions of theUnited Nations international conventions, of which India isa party, clearly show that insanity/mental illness/schizophreniais crucial supervening circumstance, which should beconsidered by this Court in deciding whether in the facts andcircumstances of the case death sentence could be commutedBto life imprisonment. To put it clear, “insanity” is relevantsupervening factor for consideration by this Court.

87. In addition, after it is established that the death convict isinsane and it is duly certified by the competent doctor,undoubtedly, Article 21 protects him and such person cannotCbe executed without further clarification from the competentauthority about his mental problems. It is also highlighted byrelying on commentaries from various countries that civilisedcountries have not executed death penalty on an insaneperson. ………. In view of the well-established laws both inDthe national as well as international sphere, we are inclinedto consider insanity as one of the supervening circumstancesthat warrants for commutation of death sentence to lifeimprisonment.”

35. In Shatrughan Chauhan (supra), this Court also referred toESunil Batra vs. Delhi Administration & Ors.[15],and reiterated that ifsolitary confinement was illegal, the same punishment could not be scuffledinto the legal system by naming it differently. If prolonged solitaryconfinement of death sentence convict is ground for commutation ofdeath sentence, solitary confinement, in effect, on ground of high securityor otherwise would also be ground for commutation of death sentence.F36. Counsel further submitted that the Trial Court has convicted

F36. Counsel further submitted that the Trial Court has convictedthe petitioner and sentenced him to death considering the inhuman andbrutal nature of the crime alone. The findings of the Trial Court withregard to the criminal antecedents is not based on any cogent materials.The Trial Court merely recorded the submission of the public prosecutorthat the petitioner had been accused in another trial in which the petitionerGhad “managed his acquittal in the garb of compromise”(para 29).

37. Citing the judgment of this Court in Birju vs. State of MadhyaPradesh[16 ]Counsel submitted, and rightly that only convictions whichhave attained finality can be considered as “aggravating circumstances”.15(1978) 4 SCC 494H16(2014) 3 SCC 421

38. Counsel submitted that the Trial Court did not give opportunityto the petitioner to show mitigating circumstances, notwithstanding aduty to hear the accused under Section 235(2) of the Code of CriminalProcedure (Cr.PC) on the question of sentence.

39. As argued by learned counsel appearing on behalf of thepetitioner, the accused had the right to be provided with legal aid at allstages, including the stage of consideration of the question of sentence.After the conviction of the petitioner, he should have been given thebenefit of being accompanied by social worker to guide and counselhim and also to help him to get an effective hearing on the question ofsentence.

40. In this case, the petitioner was not accompanied by socialworker. Furthermore the legal aid provided to the petitioner wasinadequate. The legal aid lawyer representing the applicant arguedagainst the conviction, but did not seek the opportunity to draw attentionof the Court to mitigating circumstances for imposition of sentence oflife imprisonment in place of death. He only submitted that the petitionerhad falsely been implicated.

41. For effective hearing under Section 235(2) of the Code ofCriminal Procedure, the suggestion that the court intends to impose deathpenalty should specifically be made to the accused, to enable the accusedto make an effective representation against death sentence, by placingmitigating circumstances before the Court. This has not been done.The Trial Court made no attempt to elicit relevant facts. Nor did theTrial Court give any opportunity to the petitioner the opportunity to filean affidavit placing on record mitigating factors. As such the petitionerhas been denied an effective hearing.

42. Contrary to the dictum of this Court, inter alia, in Dagdu(supra) and Santa Singh (supra) the petitioner was not given real,effective and meaningful hearing on the question of sentence underSection 235(2) of the Cr.P.C. The death sentence imposed on the petitioneris liable to be commuted to life imprisonment on this ground.

43. The records reveal that after the judgment and order ofconviction was pronounced on 29.5.2007, the matter was directed to beput up on 31.5.2007 for hearing on the point of sentence. However, onthe same day i.e., 29.5.2007 itself the petitioner was produced from jail

Acustody and death sentence was imposed. The order imposing the deathsentence is extracted hereinbelow for convenience:-

“26 Convict Md. Mannan @ Abdul Mannan produced fromjail custody.

27. Heard learned P.P and learned lawyer for the convict onthe point of passing sentence against the convict.

28. Learned lawyer for the convict has again repeated in hissubmission that the convict has been falsely implicated in thiscase.

29. On the other learned P.P. has firmly asserted that the guiltof the convict in respect of the charges framed against himhas been proved beyond shadow of all reasonable doubtswhich can only be treated as barbarous act and crime againstthe whole society beyond imagination. It is also submittedthat the convict was an accused in another S.T. No.172/93which was disposed by the Court of Learned District &Sessions Judge, Darbhanga on 18.9.1993 in which theconvict managed his acquittal in the garb of compromise. Itis submitted by the learned P.P. to award maximum sentenceagainst the convict in this case.

30. Considering the submission of the respective sides andnature of the charges against the convict I find that the guiltof the convict is not only heinous and barbarous but crimeagainst the society in general. The convict has been foundguilty of rape and murder of minor girl committed in agruesome and premeditated manner after kidnapping herwhich can only be treated as inhuman and brutal act.

31. The purpose of law will be served by awarding maximumsentence against the convict. Convict Md. Mannan @ AbdulMannan is therefore sentenced to undergo R.I. for 10 yearsfor charge u/s 366 IPC, R.I. for life for charge u/s 376 I.P.and R.I. for seven years for charge u/s 201 IPC and awardeddeath sentence for charge u/s 302 IPC. All the sentence exceptsentence for charge u/s 302 IPC shall run concurrently tillexecution of death sentence for charge u/s 302 I.P.C. wherebythe convict shall be hanged by the neck till his death.

32. Let entire proceeding of this case be transmitted to theHon’ble High Court, Patna for confirmation of capitalpunishment.”

44. On perusal of the order of sentence, it is patently clear thatthe learned lawyer representing the petitioner only submitted that thepetitioner had falsely been implicated in the case. He did not at all makeany submission with regard to the sentence. He did not seek furthertime to prepare himself, though the question of life and death of convictwas involved. The Trial Court proceeded on the basis of the submissionof the learned Public Prosecutor that the charges had been proved beyondreasonable doubt.

45. The Trial Court found, and rightly, that the crime committedwas barbarous, and crime against society, beyond imagination. Thequestion is whether death penalty should have been imposed.

46. The Trial Court has apparently been swayed by the submissionof the learned Public Prosecutor that the convict, that is, the petitioner,had been an accused in another Sessions Trial being ST No.172/93 whichwas disposed of by the Court of the learned District and Sessions Judge,Darbhanga on 18.9.1993. The Trial Court commented that “the convictmanaged his acquittal in the garb of compromise”.

47. The Trial Court has apparently not perused the order dated18.9.1993 passed by the Court of the District and Sessions Judge,Darbhanga on 18.9.1993. The petitioner having been acquitted by Courtof law, the Trial Court ought not to have been swayed by theunsubstantiated submission of the learned Public Prosecutor that theconvict “had managed” his acquittal.

48. The Trial Court found the guilt of the convict i.e. the petitioner,not only heinous and barbarous, but crime against society in general,as he had been found guilty of rape and murder of minor girl, committedin gruesome and per-meditated manner, after kidnapping her, whichcould only be termed as inhuman and brutal.

49. There can be no doubt that rape and murder of 8 year oldgirl shocks the conscience. It is barbaric. There is, however, no evidenceto support the finding that the murder was pre-meditated. The petitionerdid not carry any weapon. Moreover, the Trial Court has apparently not

Aconsidered the question of whether the crime is the rarest of rare crimesas mandated by the Supreme Court in Bachan Singh (supra).

50. The reasoning of the High Court for confirming the extremepenalty of death sentence is extracted hereinbelow for convenience:-

“26 The trial court has awarded the extreme penalty of deathsentence to the appellant on the basis of submissions in respectof criminal antecedents of the appellants and also on thefinding that the guilt is not only heinous and barbarous butcrime against the society in general. It has been submittedthat the criminal antecedents of the appellant should not havebeen taken into consideration by the trial court and hencethe special reasons give by the trial court for awarding deathpenalty is vitiated in law.

27. I have considered the entire facts and the aforesaidsubmissions for deciding whether the death penalty awardedto the appellant should be confirmed or not. In this regard itis noticed that appellant is matured man aged about 42-43years. He has committed the heinous and barbarous crime ofrape and murder of girl aged about 7 years who was thinbuilt and of 4’ height. Such child was incapable of arousinglust in normal situation. She was kidnapped in plannedmanner because she was innocent and could not understandthe design of the appellant. She became helpless victim of adiabolic middle aged man whom the child could trust as anelder person. The medical evidence shows the cruel mannerof causing injuries on the face, nails and body of the child atthe time of committing rape which was followed by murder.This was all pre-planned as is apparent from the manner ofkidnapping and selection of lonely place where crime wascommitted and body concealed. Crime of this nature againsta child girl is definitely crime against the society. The factsof the case, the offences taken together along with the age ofthe victim and the age of the appellant clearly bring the casein the category of ‘rarest of the rare cases” in which interestof justice requires award of maximum penalty. In such caseaward of lesser punishment would not be appropriate andadequate. Hence even after ignoring the material regarding

criminal antecedents of the appellant, I am of the view thatthe appellant deserves extreme penalty of death. Hence, thedeath penalty awarded to the appellant by the trial court isconfirmed and the reference is answered in affirmative. Theappeal of the appellant is dismissed.”

51. As argued by learned counsel appearing on behalf of thepetitioner, the High Court found the offence to be in the category ofrarest of the rare cases, having regard to the nature of the offence andthe age of the victim. The fact that no criminal antecedents had beenbrought on record has casually been brushed aside as irrelevant.

52. Counsel submitted, and rightly, that the High Court failed toappreciate that the Trial Court had erred in law in awarding death penalty,by proceeding on the basis that the petitioner had criminal history,when he had been acquitted.

53. The High Court upheld the death penalty by concluding thatthe convict deserved death penalty “even after ignoring the materialregarding criminal antecedents of the appellant”. The High Courthas not apparently considered the mitigating circumstances. This Courtconfirmed the death sentence on consideration of the brutality andheinousness of the crime and the age of the victim and formed opinionthat the petitioner was menace to the society and would continue to beso. He could not be reformed.

54. Counsel submitted that the brutality of the crime and age ofthe victim was not ground enough to inflict death sentence. Furthermore,the opinion of this Court that the petitioner would be menace to societyand could not be reformed had no basis. Learned counsel submittedthat the petitioner had been convicted on circumstantial evidence, basedon faulty investigation.

55. Counsel submitted that even though Dr. P.K. Das (4[th]Prosecution Witness) had collected the vaginal swab of the victim, whichupon examination showed “few intact spermatozoa”, no DNA analysiswas conducted or sought to be conducted by the prosecution for whichadverse inference might be drawn. In support of the aforesaidsubmission, counsel placed reliance on Kalu Khan v. State ofRajasthan[17] and Santosh Kumar (supra).

A56. Notwithstanding the omission of the prosecution to conductDNA analysis the Trial Court may have found the evidence sufficient toconvict the petitioner. Moreover, as rightly argued by Counsel, thequality of evidence is factor relevant to sentencing.

57. In Ramesh and Others v. State of Rajasthan[18], this CourtBobserved and held:-

“68. Practically, the whole law on death sentence was referredto in Santosh Kumar case. In para 56, the Court observed:(SCC p. 527)

‘56. … The court must play proactive role to record allCrelevant information at this stage. Some of the informationrelating to crime can be culled out from the phase prior tosentencing hearing. This information would include aspectsrelating to the nature, motive and impact of crime, culpabilityof convict, etc. Quality of evidence is also relevant factor.DFor instance, extent of reliance on circumstantial evidenceor child witness plays an important role in the sentencinganalysis. But what is sorely lacking, in most capital sentencingcases, is information relating to characteristics and socio-economic background of the offender. This issue was alsoraised in the 48th Report of the Law Commission.’”

58. In Ram Deo Prasad v. State of Bihar[19], this Court referredto and relied upon the earlier judgments of this Court in Santosh KumarSatishbhushan Bariyar (supra) and Rameshand Others (supra) andreaffirmed that the quality of evidence was also relevant factor inconsidering the question of death sentence. In the aforesaid case, thisFCourt felt it unsafe to confirm the death sentence awarded for rape andmurder of four year old child.

59. In this case, the conviction of the petitioner is based oncircumstantial evidence and the alleged extra judicial confession madeby the petitioner to the police in course of investigation, on the basis ofGwhich certain recoveries were made. There is no forensic evidenceagainst the petitioner. It would, in our view, be unsafe to uphold theimposition of death sentence on the petitioner.

18 (2011) 3 SCC 68519(2013) 7 SCC 725H

60. In Sushil Sharma vs. State (NCT of Delhi)[20] 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. This Court held:

“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 toaward death penalty in cases, which rested on circumstantialevidence or solely on approver’s evidence.”

61. In Kalu Khan (supra), this Court referred to its earlier decisionin Swamy Shraddananda (2) @ Murali Manohar Mishra vs. Stateof Karnataka[21 ]and held, in the facts of the case, the balance ofcircumstances introduced an uncertainty in the “culpability calculus” andtherefore there was an alternative to the imposition of the death penalty.Accordingly, the sentence was commuted to imprisonment for life.

62. In Santosh Kumar (supra) this Court clearly held that whilethere is no prohibition in law in awarding death sentence in case ofcircumstantial evidence, but that evidence must lead to an exceptionalcase. It was said:

“167. The entire prosecution case hinges on the evidence ofthe approver. For the purpose of imposing death penalty,that factor may have to be kept in mind. We will assume thatin Swamy Shraddananda (20, this Court did not lay down afirm law that in case involving circumstantial evidence,imposition of death penalty would not be permissible. But,even in relation thereto the question which would arise wouldbe whether in arriving at conclusion some surmises, somehypothesis would be necessary in regard to the manner inwhich the offence was committed as contradistinguished froma case where the manner of occurrence had no role to play.Even where sentence of death is to be imposed on the basis ofcircumstantial evidence, the circumstantial evidence must besuch which leads to an exceptional case.”

20(2014) 4 SCC 317

21(2008) 13 SCC 767

A63. In Sebastian @ Chevithiyan vs. State of Kerala[22], this Courtheld:

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

64. Counsel finally submitted that the legal aid lawyer representingthe petitioners had positive onus to lead evidence regarding the possibilityCof reformation of the petitioner which he did not discharge. The evidenceon reformation had to be independent of the circumstances of the crime.In this context, reliance has been placed on Rajesh Kumar (supra),Santosh Kumar Satishbhushan Bariyar (supra) and Lehna (supra).

65. Counsel argued that legal representation provided to theDpetitioner was ineffective at all stages. The petitioner was notrepresented by counsel before the Trial Court, at the time of framing ofcharge on 21.2.2004. On 6.6.2005 the petitioner made request forlegal aid. During the sentencing the Counsel did not even seek time toplace mitigating circumstances.

E66. Learned counsel submitted that legal representation was notonly ineffective in the Trial Court but also before the High Court andbefore this Court. Ineffective legal representation to defend the convicton the question of punishment is no legal representation and groundfor commutation of death sentence. This proposition finds support fromthe judgment of this Court in Ram Deo Prasad (supra).F

67. The learned counsel has drawn the attention of this Court tovarious orders of this Court where this Court has considered mitigatingcircumstances and commuted death sentence in cases involving rapeand murder of minor. Unfortunately, those orders could not be placedbefore the Trial Court. Had those orders been noticed, the petitionerGmay not have been awarded death sentence.

68. Relying on Mukesh and Anr. (supra), Counsel submittedthat this Court can call for affidavit or materials gathered by thepetitioner’s counsel, to fix the lacunae in sentencing in the the courts

H22(2010) 1 SCC 58

below. The legal representatives of the petitioner have conductedinterviews with the petitioner and his family members and the followingfactors require consideration:-

(i) Petitioner has lived his entire life in poverty.

(ii) He has never access to formal education

(iii) He started working at the age of 15 when his father wasincapacitated for the remainder of his life after suffering troke.

(iv) Petitioner was married at the age of 22 and has five dependentchildren

(v) The petitioner struggled to support his wife and children

(vi) The family is in abject poverty.

69. Counsel further submitted that during conversation with thepetitioner, he was found to lose sense of reality and talk about beingpossessed by imaginary personalities which he described as jinns. Heclaimed to lose control over his thoughts and actions when possessed.Counsel submitted that the petitioner suffered from instability of mind.In this regard, it has been submitted that:-

(i) petitioner had received multiple near fatal injuries in his headin the course of his life which have caused persistent headaches, loss ofmemory and disorientation.

(ii) The petitioner had been diagnosed and treated for meningealtuberculosis or Brain TB for year and half at Darbhanga MedicalCollege around the year 1990. Unfortunately records of the time cannotbe traced.

(iii) Socio-economic conditions of the petitioner made it impossiblefor the petitioner to avail effective treatment for his mental instability.

70. There are transcripts of consulting psychiatrist, Dr. KaustubhJoag, who opined on 29.10.2008 that there is “a strong possibility thatthe petitioner might be suffering from organic (neurological) and/or mental health issues” and advised an assessment on the psychosisspectrum and on the organic brain damage which might have altered hisbehaviour. copy of the opinion of Dr. Kaustubh Joag, MD has beenmade over. Dr. Joag is apparently Psychiatrist of standing registered

Awith Maharashtra Medical Council, who has several publications and isrecipient of awards.

71. Counsel submits that if this Court gives the applicant anopportunity, an affidavit shall be filed placing the abovementioned factorson record. Counsel submits that in the light of deficient sentencingBprocedure as pointed out, this Court may consider the socio-economicconditions and the mental illness concerns of the petitioner as also othermitigating factors such as absence of criminal antecedents on record, tocommute the death sentence imposed on the petitioner, to lifeimprisonment.C72. The review petition, filed about eight years ago, was as

C72. The review petition, filed about eight years ago, was asobserved above, dismissed by circulation on 24.08.2011. Even thereafter,for almost three years the death sentence was not executed. Thisapplication for reopening the review and hearing the same in Open Court,has also been pending for over four years. Calling for affidavits wouldonly delay the matter. The petitioner has for all these years virtuallyDbeen in solitary confinement on some ground, may be the ground of hisown security. This Court might also take judicial notice of the opinion ofthe psychiatrist, Dr. Joag which reveals that the petitioner is not mentallysound.

73. In Lehna (supra) Shatrughan Chauhan (supra), this CourtEheld that mental illness is one of the supervening circumstances incommutation of death sentence to life imprisonment. The aforesaidview was confirmed by this Court in Navneet Kaur v. State (NCT ofDelhi) and Another[23].

74. The proposition of law which emerges from the judgmentsFreferred to above is itself death sentence cannot be imposed except inthe rarest of rare cases, for which special reasons have to be recorded,as mandated in Section 354(3) of the Criminal Procedure Code. Indeciding whether case falls within the category of the rarest of rare,the brutality, and/or the gruesome and/or heinous nature of the crime isGnot the sole criterion. It is not just the crime which the Court is to takeinto consideration, but also the criminal, the state of his mind, his socio-economic background, etc. Awarding death sentence is an exception,and life imprisonment is the rule.23(2014) 7 SCC 264H

75. Therefore, before imposing the extreme penalty of deathsentence, the Court would have to satisfy itself that death sentence isimperative, as otherwise the convict would be threat to society, andthat there is no possibility of reform or rehabilitation of the convict, aftergiving the convict an effective, meaningful, real opportunity of hearingon the question of sentence, by producing materials.

76. The legal assistance provided to the convict at every stageincluding the stage of hearing on the question of sentence has to beeffective and even if the accused has remained silent, the Court wouldbe obliged and duty bound to elicit relevant factors. Opportunity shouldhave been given to the convict to bring on record mitigating circumstancesfor reduction of the sentence and balance struck between the aggravatingand the mitigating circumstance.

77. The petitioner, as observed above, did not get the benefit ofcompetent legal assistance. The Trial Court also did not make any attemptto elicit materials relevant to the imposition of death sentence. No affidavitwas called for. The question of whether there were any mitigatingcircumstances was not addressed by the Trial Court or the appellatecourts.

78. As observed above, even though the hearing under Section235(2) on the question of sentence was fixed on 31.5.2007, that is, twodays after pronouncement of the judgment and order of conviction ofthe petitioner, on 29.5.2007, the hearing was preponed to 29.5.2007 itselfafter the petitioner was produced from jail custody and death sentencewas imposed.

79.Imposition of death sentence on the same day afterpronouncement of the judgment and order of conviction may not, in itself,vitiate the sentence, provided the convict is given meaningful andeffective hearing on the question of sentence under Section 235(2) Cr.P.Cwith opportunity to bring on record mitigating factors.

80. Preponement by the Trial Court of hearing under Section 235(2)Cr. P.C at short notice, which is in effect, no notice, appears to havedenied the petitioner an effective hearing. The hearing under Section235(2) was reduced to mere formality. The Court hastily proceededto impose death sentence considering the dastardly nature of the crimefor which the petitioner had been convicted.

A81. In this case, an eight year old innocent girl fell prey to thecarnal desire and lust of the petitioner. It is not known whether therewas any pre-meditation on the part of the petitioner to murder the victim.The circumstances in which he murdered the victim are also not known.The conviction is based on circumstantial evidence and extra judicialconfession made by the petitioner to the police in course of investigation.BThere can be no doubt that the crime is abhorrent, but it is doubtful as towhether the crime committed by the petitioner can be termed as “rarestof the rare”.

82. There is also no material at all, not to speak of cogent material,to establish that the appellant was incapable of being reformed, that heCwould remain threat to society, and that the only punishment that couldbe given, having regard to the nature of the crime, is death sentence.

83. The mere fact that the petitioner and/or his Counsel chose toremain silent on the question of sentence and did not make any submissionwith regard to the same in the Trial Court or the Higher Appellate Courts,Ddoes not debar the petitioner from agitating the existence of mitigatingcircumstances at this stage, since principles of constructive res judicatacan have no application to matters relating to life and death.

84. It is open to the Court to either remit the question of sentenceto the Trial Court for fresh consideration, after giving adequate opportunityEof hearing or to remedy the breach by giving the petitioner hearing, asheld in Dagdu (supra). On overall consideration of all relevant factsand circumstances including the long pendency of proceedings, we haveopted for the latter course.

85. It is well recognised worldwide, that owing to the difficultFcircumstances prevailing in prisons, such as, enforced solitude, inadequatehealth care, loss of livelihood etc., prisoners often develop mental illnessafter their admission into prison. The petitioner has been undergoingprolonged confinement which is solitary in effect for all practicalpurposes, though not termed solitary confinement. This Court, in theGcase of Shatrughan Chauhan (supra), while strongly relying uponinternational Conventions, has held “insanity” to be pertinent superveningfactor which must be taken into consideration by the courts whileawarding death penalty. Moreover, this Court had held therein that Article21 protects such persons from being executed without obtaining further

clarification from the competent authority. Lastly, placing reliance uponlaws operating in both international as well as national arenas, this Courtconcluded that mental illness is relevant factor which warrantscommutation of death sentence to life imprisonment.

86. It is also pertinent to note herein that the relevant Prison Rulesalso recognise the phenomenon of post-conviction mental illness andstate that the execution of such persons shall be deferred, pending ordersof the Government[24]. In th elight of the aforesaid considerations, weconclude that the mental health of the petitioner at the time of executionis relevant mitigating factor which must be taken into consideration inthe present case. As observed above, there are materials put forwardnow, in the form of medical opinion, which show that the petitioner is notmentally sound. For the reasons discussed above, we are of the viewthat it would not be appropriate and/or safe to affirm the death sentenceawarded to the petitioner.

87. In Swamy Shraddananda (supra), this court held:

“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 tothis Court carrying death sentence awarded by the trialcourt and confirmed by the High Court, this Court may find,as in the present appeal, that the case just falls short of therarest of the rare category and may feel somewhat reluctantin endorsing the death sentence. But at the same time, havingregard to the nature of the crime, the Court may strongly feelthat sentence of life imprisonment subject to remissionnormally works out to term of 14 years would be grosslydisproportionate and inadequate. What then should the Courtdo? IF the Court’s option is limited only to two punishments,one sentence of imprisonment, for all intents and purposes,of not more than 14 years and the other death, the Court mayfeel tempted and find itself nudged into endorsing the deathpenalty. Such course would indeed be disastrous. farmore just, reasonable and proper course would be to expandthe options and to take over what, as matter of fact, lawfully

Abelongs to the Court i.e. the vast hiatus between 14 years’imprisonment and death. It needs to be emphasised that theCourt would take recourse to the expanded option primarilybecause in the facts of the case, the sentence of 14 year’simprisonment would amount to punishment at all.”

88. In Mulla and Another v. State of U.P.[25], this Court hasaffirmed that it is open to the Court to prescribe the length of incarceration.This is especially true in cases where death sentence has been replacedby the life imprisonment. This Court observed, “the court should befree to determine the length of imprisonment which will suffice theoffence committed.”

89. Even though life imprisonment means imprisonment for entirelife, convicts are often granted reprieve and/or remission of sentenceafter imprisonment of not less than 14 years. In this case, consideringthe heinous, revolting, abhorrent and despicable nature of the crimecommitted by the petitioner, we feel that the petitioner should undergoDimprisonment for life, till his natural death and no remission of sentencebe granted to him.

90. We, therefore, commute the death sentence imposed on thepetitioner to life imprisonment, till his natural death, without reprieve orremission.

91. The review petition is accordingly disposed of.

Devika Gujral

Review Petition disposed of.

25(2010) 3 SCC 508