2009 Supreme(SC) 1077

2009(4) Supreme 235
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Santosh Kumar Satishbhushan Bariyar — Appellant
versus
State of Maharashtra — Respondent
Criminal Appeal No. 1478 of 2005
With
Criminal Appeal No. 452 of 2006
Decided on : 13-05-2009

IMPORTANT POINTS
Power of Sessions judge u/s 307 is independent of section 306.
Mandatory death sentence would be unconstitutional.
Death sentence should be imposed in rarest of rare cases and only when the alternative option is unquestionably foreclosed.
Perception of public is extraneous to conviction as also sentencing.
Mandate of equality clause (Article 14) applies to sentencing process rather than the result, i.e., the sentence.
Doctrine of rehabilitation has also be kept in mind while sentencing.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 306 – The provision applies to cases triable exclusively by a Court of Sessions. (Para 28)

        (b) Code of Criminal Procedure, 1973 – Section 306 and 307 – Magistrate tendering pardon u/s 306 must inform the basis thereof to the Sessions Judge – Power of Sessions judge u/s 307 is independent of section 306 – Section 307 refers to section 306(1) and no other condition. (Paras 32 and 33)

        1994 Supp (2) SCC 73 – Distinguished.

        (c) Code of Criminal Procedure, 1973 – Section 307 – Examination of the accomplice is mandatory – Non-examination of the approver at the committal stage by the committing Magistrate, if rectified later, would not lead to any prejudice to the accused. (Para 41)

        (2000) 8 SCC 457 – Relied upon.

        (d) Indian Penal Code, 1860 – Section 302 – Constitutionality of death penalty already upheld. (Para 44)

        (1980) 2 SCC 684 – Relied upon.

        (e) Code of Criminal Procedure, 1973 – Section 354(3) – In view of the acknowledgement of death penalty in the Constitution, and considering the procedures u/s 354(3) as safeguards and guidance sentencing orienting the death sentence in very elective situations, the death punishment was upheld substantially and procedurally. (Para 46)

        (1980) 2 SCC 684; (1979) 3 SCC 646 – Relied upon.

        (f) Code of Criminal Procedure, 1973 – Sections 354(3) and 235(2) – Sufficient judicial discretion is pre-condition for effective compliance of Sentencing Procedure under these provisions. (Para 48)

        (1980) 2 SCC 684; 408 U.S. 238 (1972); (2005) 4 SCC 165 – Relied upon.

        (g) Indian Penal Code, 1860 –Section 303 – Mandatory death sentence rendering sections 235(2) and 354(3), Cr.P.C. meaningless would be unconstitutional. (Para 51)

        AIR 1983 SC 473; (2002) UKPC 11 : 12 BHRC 219; (2002) UKPC 12; (2002) 2 AC 284; (2006) 1 WLR 1623; (2007) UKPC 7 – Relied upon.

        (h) Sentencing process – Compliance with sentencing procedure enunciated in Bachan Singh should generate enough information to objectively inform the selection of penalty – Selection of penalty must not require a judge to reflect on his/her personal perception of crime. (Para 53)

        2008 (10) SCALE 669 – Referred.

        (i) Code of Criminal Procedure, 1973 – Sections 235(2) and 354 (3) – Court is duty bound to oversee comprehensive compliance to these two provisions – In order that an informed selection of sentence is based on the information collected and collated at this stage, scrupulous compliance of both provisions is necessary. (Para 55)

        AIR 1956 SC 526; (1991) 4 SCC 341; AIR 1989 SC 1456; (1981) 3 SCC 11; (1991)1SCC752; (1994) 4SCC 381 – Relied upon.

        (j) Sentencing Procedure – For proper sentencing, aspects relating to the nature, motive and impact of crime, culpability of convict etc. are relevant – Quality of evidence is important – Characteristics and socio-economic background of the offender as also the aggravating and mitigating circumstance relating both to the crime and the criminal have to be considered. (Paras 57 and 58)

        (1980) 2 SCC 684 – Followed.

        (k) Code of Criminal Procedure, 1973 – Section 354(3) – “Special reasons” – Rarest of rare dictum – Death sentence should be imposed in rarest of rare cases and only when the alternative option is unquestionably foreclosed – Rarest of rare is an exceptionally narrow exception. (Paras 59 and 61)

        (1980) 2 SCC 684; (1998) 7 SCC 177 – Followed.

        (1996) 2 SCC 175 – Per incuriam.

        AIR 2009 SC 56; (2008)7 SCC 561; (2008)11 SCC 113; (1996) 6 SCC 271; (2003) 9 SCC 310; 2009 (3) SCALE 394 – Distinguished impliedly.

        (l) Indian Penal Code, 1860 – Section 302 – Sentencing and appellate courts have to follow the same standard of rigours and fairness in case of death penalty – Inverse pyramid of responsibility is applicable in such cases. (Para 70)

        (1980) 2 SCC 684 – Followed.

        (1975) 1 SCC 647 – Relied upon

        (m) Sentencing Procedure – Balance of aggravating and mitigating circumstances have to take precedence over the incoherent and fluid responses of society – Spirit of Article 14 and Article 21 also force courts to adopt a principled approach to sentencing. (Paras 77 and 79)

        (2002) 9 SCC 168; (1999) 3 SCC 19; (2002) 4 SCC 679 – Relied upon.

        (n) Sentencing Procedure – Perception of public is extraneous to conviction as also sentencing, at least in capital sentencing. (Para 80)

        (1980) 2 SCC 684 – Followed.

        319 U.S. 624 (1943) – Relied upon.

        (o) Sentencing Guidelines – Supreme Court cannot issue sentencing guidelines – It is a legislative function – Court can only issue guideline judgments – Sentencing discretion has to be exercised judicially. (Paras 87 to 89)

        (1973) 1 SCC 20 – Relied upon.

        (p) Indian Penal Code, 1860 – Section 302 – There is no uniformity of precedents in the matter of awarding death penalty – Death penalty had been affirmed or refused without laying down any legal principle – Even the principle of balancing aggravating and mitigating circumstances has not worked sufficiently well. (Paras 101 and 108)

        2008 (10) SCALE 669 – Relied upon.

        2007 (3) SCALE 106; 2008 (4) SCALE 442; (2008)7 SCC 561; 2008 (10) SCALE 336; AIR2009 SC 56; 2009 (3) SCALE 394; 2007 (14) SCALE 428; 2006 (11) SCALE 309; 2007 (2) SCALE 42; 2009 (1) SCALE 713; 2006 (13) SCALE 467; (2007) 12 SCC 288; (1983) 3 SCC 470 – Referred.

        (q) Indian Penal Code, 1860 – Section 302 r/w sections 253(2) and 354(3), Cr. P.C. – The overall legislative scheme on death penalty was held constitutional only after it was conjoined with the Rarest of rare dictum. (Para 114)

        (2001) 5 SC 714; JT 2008 (7) SC 66 – Relied upon.

        (r) Sentencing Procedure – Sentencing must be a principled exercise. (Para 123)

        105 C.C.C. 172 (Ont.C.A.) – Relied upon.

        (s) Distributive Justice – Reasons justifying the punishment should be able to address the questions relating to fair distribution of punishment amongst similarly situated convicts. (Para 125)

        (t) Indian Penal Code, 1860 – Section 302 – The provision is not arbitrary and is constitutional – However, its administration may be arbitrary. (Para 130)

        (u) Constitution of India,1950 – Article 14 – Mandate of equality clause applies to sentencing process rather than the result, i.e., the sentence. (Para 134)

        (v) Indian Penal Code, 1860 – Section 302 – Capital punishment vis-à-vis right to life – There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether – Passing of the sentence of death must elicit the greatest concern and solicitude of the Judge because, this is one sentence which cannot be recalled – Therefore protections provide under Article 14 and Article 21 have to be applied in the strictest possible terms. (Paras 140 to 142)

        1994 (3) SA 868 (A); (1981) 2 SCC 35 – Relied upon.

        (w) Code of Criminal Procedure, 1973 – Section 354(3) – Sentencing Procedure – Proportionality requirement – There should be proportionality between the limitation of rights and objective for imposing the limitation. (Para 147)

        (x) Code of Criminal Procedure, 1973 – Section 354(3) – Along with the principle of proportionality, the doctrine of rehabilitation has also be kept in mind while awarding any sentence, more so while determining whether a case falls in ‘rarest of rare cases’. (Para 161)

        (1980) 2 SCC 684, (1983) 3 SCC 470 – Relied upon.

        (1994) 4 SCC 220 – Referred.

        (1998) 5 SCC 336 – Distinguished.

        (y) Indian Penal Code, 1860 – Section 302 – Mere mode of disposal of a dead body may not by itself be the ground for inclusion of a case in the “rarest of rare” category for the purpose of imposition of the death sentence. (Para 166)

        (1996) 4 SCC 148 – Relied upon.

        (z) Sentencing Principles – Relationship between deterrence and severity of punishment is complicated – Capital punishment does not necessarily deter murder to a marginally greater extent than the life sentence.

        (2007) 12 SCC 288; 128 S. Ct. 2641 – Referred.

        (aa) Criminal Trial – Circumstantial evidence – Where the entire prosecution case revolves round the statement of an approver or dependant upon the circumstantial evidence, the prudence doctrine should be invoked. (Para 174)

        (ab) Indian Penal Code, 1860 – Section 302 r/w section 34 – All accused identically situated – Plan executed with consent of all – This would be mitigating circumstance in favour of the accused who had been singled out for death penalty. (Paras 175 and 179)

        (ac) Indian Penal Code, 1860 – Section 302 – Where there is no other option and reformation is ruled out, death sentence may be imposed. (Para 176)

        (ad) Code of Criminal Procedure, 1973 – Section 354(3) – Death penalty to be awarded in only on special reasons – Life sentence being the rule and death sentence being exception, impugned judgment cannot be sustained in absence of special reasons. (Paras 177 and 179)

       Facts of the case :

        1. The facts in brief are that the accused were said to have hatched a conspiracy to abduct either one Abhijeet Kothari or one Kartikraj (the deceased) and to demand a ransom of Rs. 10 lacs from the victim’s family.

        2. Kartikraj was working as a junior clerk in Central Railways at Pune. Ramraj, his father (PW-49) was, at the relevant time, working as Manager in NABARD, Hyderabad. Santosh Ramraj (PW-50), the younger brother of the deceased was staying with his father.

        3. Santosh Ramraj received a phone call on 8th August, 2001 at his residential telephone number disclosed by the caller, that his brother Kartikraj was in his custody. Ransom for a sum of Rs. 10 lacs was allegedly demanded. He was threatened that if the said amount was not paid within 24 hours then Kartikraj would be killed. The family of the deceased is said to have received some more threatening calls thereafter.

        4. Ramraj (PW-49) thereafter talked to his friend Dattatraya Bhandange (PW-2) who, at the relevant time, was working as Manger in NABARD, Pune. Bhandange (PW-2) did his best to trace out Kartikraj but failed in his attempts.

        5. Pursuant thereto, a First Information Report was lodged for offences punishable under Sections 363 and 387 I P C.

        6. Keeping the kidnappers engaged in one conversation or the other, a trap was laid for them at Juhu on 12th August, 2001. Pursuant thereto Kumar Gaurav (PW-1), the approver and Accused Nos.2 and 3, Sanjeevkumar Mahendraprasad Roy and Sanothskumar Shrijailal Roy were arrested. Accused No.1, Santosh Kumar Satishbhushan Bariyar, was arrested at Andheri Railway Station.

        7. One of the accused Kumar Gaurav, who has since been granted pardon, addressed a letter to the Commissioner of Police, Pune City on or about 29th October, 2001 stating that Kartikraj had been murdered by the accused on 8th August, 2001. He expressed his repentance. He also expressed his desire to make a confession.

        8. On 7th August, Santosh Kumar Bariyar (A1) contacted Kartikraj (the deceased) and convinced him to come to his place. In the night he brought Kartikraj to his Apartment. Kartikraj, believing that he had been invited to celebrate his friends’ marriage watched movies with them till almost midnight. Appellant then went behind the deceased and placed a sickle on his neck. There after he was assaulted with kicks and blows. All this went on for two hours. Then the accused called up the family of the deceased and asked them to pay a ransom of Rs. 10 lacs if they wanted to see Kartikraj alive again.

        9. Apprehending that they might be caught, Santosh Kumar Bariyar (A1) and Kumar Gaurav (PW1) decided that it would no longer be safe to keep the deceased alive and that it was in their best interest to kill him. To end his life the appellant and Sanjeeb Kumar Roy (A2) tied a rope around his neck and pulled at it from both ends. His dead body was then cut into pieces and placed in polythene bags.

        10. They then disposed of these bags containing the body parts of the deceased at different places. They also disposed of the belongings of the deceased in a similar fashion. They thereafter also cleared off all the items from the flat.

        11. The next day they again called up the family of the deceased demanding ransom from them even though they had already killed their victim.

        12. The learned Sessions Judge convicted accused No.1 of the offences punishable under Section 302 read with Section 120-B as also under Sections 364-A read with 120-B IPC. He was sentenced to death. Accused Nos. 2 and 3 were convicted of the offences punishable under Section 302 read with Section 120-B as also under Sections 364-A read with 120-B IPC. Besides, all the accused were found guilty of the offences under Sections 387 read with 120-B ; 201 read with 120-B IPC and Sections 4 and 25 of the Indian Arms Act and were sentenced for various terms accordingly.

        13. High Court confirmed the conviction and sentence.

       Finding of the Court :

        Pardon granted by the learned Sessions Judge was legal. This is not a case where death penalty should be imposed.

       Result : Both appeals dismissed.