IMPORTANT POINTS
(1) Kidnapping and murder of child – Death penalty – Sex of child cannot be in itself considered as an aggravating circumstance by a constitutional court.
(2) Supreme Court can prescribe length of imprisonment, especially in cases where capital punishment is replaced by life imprisonment.
(3) Admissibility of electronic records – Section 65B of Evidence Act certificate is mandatory.
(4) Separate hearing on sentencing is required to satisfy rules of natural justice.

Headnote:
(A) Indian Penal Code, 1860 – Sections 364-A and 302 – Constitution of India – Article 137 – Kidnapping and murder of child – Death penalty – Right to oral hearing in review – Petitioner was accused of kidnapping and murdering a 7-year-old child – Two witnesses saw petitioner taking away victim on his motorbike after he got down from school bus – Both witnesses also provided unimpeachable evidence in their respective cross-examinations before trial court – Both of their testimonies stand corroborated not only through CDRs but also through recovery of mobile phone on the basis of confessional statement of petitioner – Victim was last seen with petitioner – There is no reason to doubt guilt of petitioner – No reason in review jurisdiction to interfere with concurrent findings of Trial Court, High Court and this Court vis-à-vis guilt of petitioner for kidnapping and murdering victim – Argument of residual or lingering doubt does not come to rescue of petitioner – However, Trial Court did not conduct any separate hearing on sentencing and did not take into account any mitigating circumstances pertaining to petitioner before awarding death penalty – High Court took into account gruesome and merciless nature of act but did not specifically look at any mitigating circumstances bearing on petitioner – No mitigating circumstances of petitioner were taken into account at any stage of trial or appellate process even though petitioner was sentenced to capital punishment – Sex of child cannot be in itself considered as an aggravating circumstance by a constitutional court – Murder of a young child is unquestionably a grievous crime – But, it cannot be said that there is no possibility of reformation even though petitioner has committed a ghastly crime – Death sentence imposed upon petitioner commuted to life imprisonment for not less than twenty years without reprieve or remission. (Paras 48, 49, 52, 54, 59, 70, 71, 72, 74, 75, 88 and 94)
(B) Indian Evidence Act, 1872 – Section 65B – Admissibility of electronic records – Section 65B certificate is mandatory – For admitting any electronic evidence by way of secondary evidence, such as CDRs, requirements of Section 65B would necessarily need to be satisfied and no other route under IEA may be adopted for admission of such evidence. (Paras 33 and 37)
(C) Criminal Procedure Code, 1973 – Section 235 – Separate hearing on sentencing – Sentencing hearing is required to satisfy rules of natural justice – It is mandatory and is not a mere formality – While court may adjourn for a separate hearing, same-day sentencing do not violate provisions of Section 235(2) of Cr.P.C. and do not in itself vitiate sentence. (Paras 66 and 68)
Facts of the case:
Applicant is a convict on death row. He has moved this court for a fresh look at his petition seeking a review of his conviction for the offence of murder and the award of the sentence of death. He does so on the basis of the decision of the Constitution Bench in Mohd. Arif alias Ashfaq v Registrar, Supreme Court of Indi, 2014 (9) SCC 737. In Mohd. Arif, this Court has held that review petitions arising from conviction and the imposition of the sentence of death must be heard in open court and cannot be disposed of by circulation.
Findings of Court:
Notice is required to be issued to the Inspector of Police, Kammapuram Police Station, Cuddalore District, State of Tamil Nadu to offer an explanation as to why action should not be taken for the filing of affidavit dated 26th September 2021. In this case, prima facie, material information regarding the conduct of the petitioner in the prison was concealed from this Court. Accordingly, Registry is directed to register the matter as a suo motu proceeding for contempt of court.
Result : Review Petitions disposed of

Judgement Key Points

Section 65B of the Evidence Act is a crucial provision governing the admissibility of electronic records as evidence. According to this section, electronic records, such as call detail records (CDRs), are deemed to be documents if they meet certain specified conditions. These conditions include that the electronic record was produced by a computer during its regular use, that the information was regularly fed into the computer in the course of its activities, and that the computer was functioning properly during the relevant period. Additionally, a certificate, signed by a person in a responsible official position, is required to identify the electronic record, describe how it was produced, and confirm that the conditions for admissibility have been satisfied (!) (!) .

It is important to note that the certificate under Section 65B is mandatory for the admissibility of electronic records as secondary evidence. Without such a certificate, the electronic record cannot be admitted in evidence, as the law explicitly states that no other route under the Evidence Act can be used for the admission of such evidence (!) (!) .

Furthermore, recent judicial clarifications have emphasized that the requirements of Section 65B must be strictly followed. The certificate must identify the electronic record and describe the manner of its production, and it must be signed by a responsible official (!) (!) . The section also provides detailed criteria for the proper functioning of the computer system and the regular feeding of information, ensuring the integrity and authenticity of the electronic record (!) (!) .

In summary, Section 65B establishes a clear procedural framework for the admissibility of electronic evidence, making the production of a compliant certificate a mandatory prerequisite. This ensures the reliability of electronic records introduced as evidence and prevents the acceptance of electronically stored information without proper validation.

JUDGMENT :

DHANANJAYA Y. CHANDRACHUD, CJI.

This judgment consists of the following sections:

A. Prologue – The impact of Mohd. Arif

B. Background

C. Scope of Review Jurisdiction

D. Error Apparent on the Face of the Record?

D.1 Submissions of Counsel

D.2. Analysis

E. Sentencing & Mitigation

E.1. Lingering Doubt Theory

E.2. Sentencing & Mitigation in the Trial Court and the Appellate Courts

F. Conclusion

1. The applicant is a convict on death row. He has moved this court for a fresh look at his petition seeking a review of his conviction for the offence of murder and the award of the sentence of death. He does so on the basis of the decision of the Constitution Bench in Mohd. Arif alias Ashfaq v Registrar, Supreme Court of India, 2014 (9) SCC 737. In Mohd. Arif, this Court has held that review petitions arising from conviction and the imposition of the sentence of death must be heard in open court and cannot be disposed of by circulation. The Constitution Bench allowed a period of a month from the date of judgment to petitioners whose applications seeking review of the judgment of this Court confirming the award of the sentence of death were rejected by circulation, where the sentence was yet to be executed.

A. Prologue – The impact of Mohd. Arif

2. In Mohd. Arif, this Court took note of the irreversible nature of the death penalty and of the possibility of two judicial minds reaching differing conclusions on the question of a case being appropriate for the award of the death penalty. The judgment of the majority allowed the right to oral hearing in review for cases involving death penalty:

29. […] death sentence cases are a distinct category of cases altogether. Quite apart from Article 134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other. Adverting first to the second factor mentioned above, it is well known that the basic principle behind returning the verdict of death sentence is that it has to be awarded in the rarest of rare cases. There may be aggravating as well as mitigating circumstances which are to be examined by the Court. At the same time, it is not possible to lay down the principles to determine as to which case would fall in the category of rarest of rare cases, justifying the death sentence. It is not even easy to mention precisely the parameters or aggravating/ mitigating circumstances which should be kept in mind while arriving at such a question. Though attempts are made by Judges in various cases to state such circumstances, they remain illustrative only.

30. […] A sentence is a compound of many factors, including the nature of the offence as well as the circumstances extenuating or aggravating the offence. A large number of aggravating circumstances and mitigating circumstances have been pointed out in Bachan Singh v. State of Punjab, SCC at pp. 749-50, paras 202 & 206, that a Judge should take into account when awarding the death sentence. Again, as pointed out above, apart from the fact that these lists are only illustrative, as clarified in Bachan Singh itself, different judicially trained minds can apply different aggravating and mitigating circumstances to ultimately arrive at a conclusion, on considering all relevant factors that the death penalty may or may not be awarded in any given case. Experience based on judicial decisions touching upon this aspect amply demonstrate such a divergent approach being taken. Though, it is not necessary to dwell upon this aspect elaborately, at the same time, it needs to be emphasised that when on the same set of facts, one judicial m