2011 Supreme(SC) 950

2011 (6) Supreme 514
SUPREME COURT OF INDIA
D.K. Jain and Asok Kumar Ganguly, JJ
Rajesh Kumar — Appellant(s)
versus
State through Govt. of NCT of Delhi — Respondent(s)
Criminal Appeal Nos. 1871-1872 of 2011
(Arising out of SLP(CRL) Nos.9516-9517 of 2009)
Decided on : 28-9-2011

IMPORTANT POINTS
1. The legislative policy in Section 354(3) Cr. P.C. is that for person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration. In considering the question of sentence the Court must show a real and abiding concern for the dignity of human life which must postulates resistance to taking life through law’s instrumentality. Except in ‘rarest of rare cases’ and for ‘special reasons’ death sentence cannot be imposed as an alternative option to the imposition of life sentence.
(2) Merely because the accused committed the murder in a very brutal and inhuman fashion, that alone cannot justify infliction of death penalty.
(3) The concept of ‘rarest of rare’ which has been evolved in Bachan Singh (supra) by the Supreme Court is also the internationally accepted standard in cases of death penalty.

Headnote:(a) Indian Penal Code, 1860, Section 302 ¯ Accused appellant committing brutal murder of two children aged 8 months and 4 years ¯ Spot arrest ¯ High Court finding it a rarest of rare cases, confirmed the death sentence awarded by the Sessions Judge ¯ Hence this appeal ¯ Supreme Court had issued notice on the limited question of sentence ¯ Failure of the State to show that the appellant is a continuing threat to society or that he is beyond reform and rehabilitation, the two mitigating circumstances in favour of the accused laid down by Constitution Bench of Supreme Court in Bechan Singh’s case, (1980) 2 SCC 684, Supreme Court substituted death sentence award to the appellant by sentence of life imprisonment. (Para 90)

        (b) Criminal Procedure Code, 1973, Section 354 (3) ¯ The legislative policy in Section 354(3) of 1973 Code is that for person convicted of murder, life imprisonment is the rule and death sentence, an exception, and the mitigating circumstances must be given due consideration ¯ In considering the question of sentence the Court must show a real and abiding concern for the dignity of human life which must postulates resistance to taking life through law’s instrumentality ¯ Except in ‘rarest of rare cases’ and for `special reasons’ death sentence cannot be imposed as an alternative option to the imposition of life sentence. (Paras 63 and 105)

        (c) Indian Penal Code, 1860, Section 84 ¯ Plea of unsoundness mind ¯ After the incident PW7 Director of Swanchetan Society for mental health had talk with the appellant and did not find any abnormality in the behavior of the appellant wherefrom he could be certified as an insane person ¯ Board of All India Institute of Medical Sciences also examined the appellant and opined that the appellant was of sound mind ¯ Both the Trial Court and the High Court rejected the plea of unsoundness of mind of the accused appellant ¯ In fact no such plea was taken by the appellant in the Trial Court ¯ Before Supreme Court also the said plea of insanity was taken half- heartedly. (Paras 10, 28 and 33)

        (d) Criminal Procedure Code, 1973, Section 235 ¯ The giving of an opportunity of hearing to the accused on the question of sentence is the incorporation of the great humanizing principle of natural justice and fairness in procedure in the realm of penology ¯ Opportunity of hearing at the post conviction stage, gives the accused an opportunity to raise fundamental issues for adjudication and effective determination by Court of its sentencing discretion in a fair and reasonable manner ¯ The importance of section 235(2) of 1973 can hardly be overemphasized in a case where prosecution demands the imposition of death penalty and the court awards the same. (Paras 51 and 53)

        (e) Criminal Procedure Code, 1973, Sections 235(2) and 354(3) ¯ The object of hearing under section 235(2) being intrinsically and inherently connected with the sentencing procedure, the provision of section 354(3) which calls for recording of special reason for awarding death sentence must be read conjointly with section 235(2) of 1973 Code ¯ Special reasons can only be validly recorded if an effective opportunity of hearing contemplated under section 235(2) of Cr. P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence ¯ The due process concept and the values of Eighth Amendment of the U.S. Constitution, which have been incorporated in Indian Constitution, are virtually articulated through the procedural safeguards of section 235(2) read with section 354(3) of 1973 Code. (Paras 63, 64 and 80)

        (e) Criminal Procedure Code, 1973, Section 354(3) ¯ Evolution of sentencing structure and concept of mitigating circumstances traced and discussed. (Para 34 to 40).