2021 Supreme(SC) 719

SUPREME COURT OF INDIA
(From the High Court of Jharkhand at Ranchi)
L. NAGESWARA RAO, B.R. GAVAI, B.V. NAGARATHNA, JJ.
Mofil Khan & Anr. – Appellant
Versus
The State of Jharkhand – Respondents
Review Petition (Criminal) No.641 of 2015 In Criminal Appeal No. 1795 of 2009
Decided on : 26-11-2021

IMPORTANT POINTS
(1) Death sentence ought not to be imposed, save in rarest of rare cases when alternative option of a lesser punishment is unquestionably foreclosed – Possibility of reformation and rehabilitation of convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing him to death.
(2) Review is not rehearing of appeal all over again and to maintain a review petition, it has to be shown that there has been a miscarriage of justice – An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on face of record justifying Court to exercise its power of review.

Headnote:

(A) Constitution of India – Article 137 – Indian Penal Code, 1860 – Sections 302 and 449 read with Section 34 – Review Petition – Death sentence – Murder of eight members of a family – One of mitigating circumstances is probability of accused being reformed and rehabilitated – State is under a duty to procure evidence to establish that there is no possibility of reformation and rehabilitation of accused – Death sentence ought not to be imposed, save in rarest of rare cases when alternative option of a lesser punishment is unquestionably foreclosed – Before imposing extreme penalty of death sentence, Court should satisfy itself that death sentence is imperative, as otherwise convict would be a threat to society, and that there is no possibility of reform or rehabilitation of convict after giving convict an effective, meaningful, real opportunity of hearing on question of sentence, by producing material – Hearing of sentence should be effective and even if accused remains silent, Court would be obliged and duty-bound to elicit relevant factors – Possibility of reformation and rehabilitation of convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing him to death – There is bounden duty cast on Courts to elicit information of all relevant factors and consider those regarding possibility of reformation, even if accused remains silent – Judgments of trial court, High Court and this Court would indicate that sentence of death is imposed by taking into account brutality of crime – There is no reference to possibility of reformation of Petitioners, nor has State procured any evidence to prove that there is no such possibility with respect to Petitioners – It cannot be said that there is no possibility of reformation of Petitioners, foreclosing alternative option of a lesser sentence and making imposition of death sentence imperative – Sentence of death imposed on Petitioners is converted to life imprisonment for a period of 30 years. (Paras 8, 9, 10 and 11)

(B) Civil Procedure Code, 1908 – Order XLVII, Rule 1 – Supreme Court Rules, 2013 – Order XLVII, Rule 1 – Constitution of India – Article 137 – Review Petition – Scope and ambit – Review is not rehearing of appeal all over again and to maintain a review petition, it has to be shown that there has been a miscarriage of justice – An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on face of record justifying Court to exercise its power of review – An applicant cannot be allowed to reargue appeal in an application for review on grounds that were urged at the time of hearing of appeal – Even if applicant succeeds in establishing that there may be another view possible on conviction or sentence of accused that is not a sufficient ground for review – Apex Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in earlier decision due to judicial fallibility – There has to be an error apparent on face of record leading to miscarriage of justice. (Para 2)

Facts of the case:

Present Petition has been filed under Article 137 of Constitution of India, seeking review of judgment dated 09.10.2014 in Criminal Appeal No.1795 of 2009. The Petitioners were convicted for offences under Sections 302 and 449 read with Section 34 of the Indian Penal Code, 1860 and sentenced to death for offence under Section 302 read with Section 34, IPC and 10 years of rigorous imprisonment for offence under Section 449 read with Section 34, IPC. The conviction and death sentence imposed by the trial court was upheld by the High Court of Jharkhand by an order dated 02.07.2009 and the Criminal Appeal filed by the Petitioners against the said order was dismissed by this Court by its judgment dated 09.10.2014.

Findings of Court:

To satisfy that the sentencing aim of reformation is unachievable, rendering life imprisonment completely futile, the Court will have to highlight clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme. This analysis can only be done with rigour when the Court focuses on the circumstances relating to criminal, along with other circumstances.

Result : Review Petition disposed of.