Holding

The death sentences were unjustified; they were set aside and life imprisonment imposed, while A4 and A5 were convicted only under Section 411 IPC.

Summary

The Supreme Court examined the convictions of five accused (Al, A2, A3, A4, A5) for the murders of Savitri Devi and her grandson Sunil and related robbery. The Sessions Court had sentenced them to life imprisonment, but the Karnataka High Court enhanced the sentences of Al, A2 and A3 to death. The Court held that the High Court failed to balance aggravating and mitigating factors and did not give special reasons required for a death sentence, which is an exception to the general rule and must be imposed only in the "rarest of rare" cases. Consequently, the death sentences were set aside and life imprisonment was imposed. For A4 and A5, the Court found insufficient evidence of participation in the murders and limited their conviction to the offence of possession of stolen property under Section 411 IPC. The appeals were partly allowed, modifying convictions and sentences accordingly.

Issues considered

The appropriateness of enhancing life imprisonment to death sentence for Al, A2 and A3 under the "rarest of rare" doctrine.
Whether the High Court considered both aggravating and mitigating circumstances before imposing death penalty.
Whether A4 and A5 could be convicted of murder given the lack of evidence of their participation.
Whether conviction under Section 396 IPC stands when only three accused are convicted.
Whether sentencing under Section 235(2) of the Criminal Procedure Code was complied with.

Legislation cited

Code of Criminal Procedure, 1973s. 235(2), s. 354(3)
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302/34, s. 307, s. 379/34, s. 394/34, s. 395, s. 396, s. 411, s. 449

Subjects

death penaltyrarest of rare doctrineaggravating circumstancesmitigating circumstancesIPC Section 302IPC Section 411criminal sentencingappealconviction modification

Judgment

A ANSHAD AND ORS. ·./ ~
v.
STATE OF KARNATAKA

APRIL 22, 1994

B [DR. AS. ANAND AND FAIZAN UDDIN, JJ.]

Criminal Procedure Code 1973-S.354(3)-Death sentence-Death by '·
strangulation of two persons while committing robbery, and causing injuries
to others-High Court referring to the aggravating circumstances and to the
c decisions of this Court and abrnptly concluding that sentence of death be
imposed-Held, before awarding death sentence, while court should take into
account aggravating circumstances, it should not ignore the mitigating cir-
cumstances-Death sentence, being exception to general role, to be awarded
in rarest of rare cases Jo~ 'special reasons!! after balancing aggravating and
11 11 1

mitigating circumstances-Considering mitigating circumstances, death sen-
D
tence awarded by High Court reduced to life imprisonmen~enal Code, .
1860, Ss. 302/34, 394/34 and 379134 •
<
Sentence-Death Sentence-Sessions Court awarding life imprison-
ment-High Court enhancing punishment to award sentence of death-Held,
E High Court has power to enhance sentence of life imprisonment to death, but
that power has to be sparingly used-Enhancement of sentenc,,_prjnciples
indicated.

Penal Code, 186{}-S.411 and Ss. 449, 396, 307 and 395-0n facts, the
only circumstance proved against two accused being the recovery of articles
F belonging co deceased from their possession-Charge converted to one under
S.411-Sentence reduced to period undergone-Criminal Triaf-Conversion
of charge-Evidence Act, 1872, S.27.

Criminal Trial-Modification of charge-Penal Code, 186{}-S.396-
G Held, where two of five accused acquitted, conviction under s.396 cannot
stand-Ss.302/34, 394/34 and 379/34

Criminal Procedure Code, 1973-S.235(2)-Held, Sessions Judge must
not be cryptic while imposing sentence.

H Al to AS were convicted by the Sessions Court under Ss.396, 449, 395
642
ANSHAD v. STATE OF KARNATAKA 643

and 307 and sentenced to imprisonment for life and to pay fine. In A
cross-appeals before the High Court, the sentence of life imprisonment
imposed on Al to A3 was enhanced to that of death sentence. In appeal
before this court, it was contended for Al to A3 that it was not a fit case
for the award of the sentence of death and that the High Court should not
have, in the circumstances of the case, enhanced the sentence from life B
imprisonment to death. It was also contended.that the case against A4 and
AS had not been established beyond a reasonable doubt.
)

; Partly allowing the appeal, this Court

HELD : 1. The reasons given by the High Court to enhance the C
sentence of life imprisonment to death, without taking into account all
circumstances and balancing the aggravating and the mitigating cir·
cumstances are neither special reasons' nor otherwise adequate and suffi-
cient to impose the sentence of death on any of the three convicts Al to
A3. [655·A)
D
Dalip Singh v. State of Punjab, AIR (1953) SC 364, followed.

; 2. Death sentence, being an exception to the general rule, should be
awarded in the "rarest of rare" cases of "special reasons" to be recorded
after balancing the aggravating and mitigating circumstances. Apart from
referring to some "aggravating circumstances" like the betrayal of con· E
fidence reposed In Al by the deceased and murder for committing robbery
on a helpless woman, the High Court only referred to some of the judg·
ments of this court and then almost abruptly concluded that death sen·
tence was called for in the instant case. The High Court did not take into
account any of the mitigating circumstances at all. Courts are expected to F
exhibit sensitiveness in the matter of award of sentence particularly the
sentence of death because life once lost cannot be brought back.
[653-G,D·E)
3. The High Court has the powe.r and jurisdiction to enhance the
sentence oflife imprisonment tr. death, but that power has to be sparingly G
exercised. [653-FJ

4. While awarding the sentence the courts must take into consider•·
lion the nature of the crime, the brutality with which it was executed, the
antecedents of the criminal, the weapons used, etc. though it is neither
possible aar desirable to catalogue all such factors. In the instant case, H
644 SUPREME CO(JRT REPORTS [1994] 3 S.C.R.

A some of th.e mitigating factors were that Al to A3 had gone to the house J '
of the deceased empty-handed; they did not do away with the eye-witnesses
to screen their offence; there was nothing on record to show that they had
acted in an exceptionally brutal or cruel manner nor any evidence to show
which of the accused had strangulated which of the deceased. The object
of Al to A3 appears to have been to commit robbery in the house of the
B deceased. Surprised in the act, and to overcome resistance, accused stan-
gulated them by the use of towels, which unfortunately proved fatal.
[653-H; 654-A, G] '\
5. The Session Judge dealt with the question of sentence in a cryptic
manner and after pronouncing the order of conviction, on the same day
C by a one-paragraph order dealt with the question of sentence. It shows a
lack of sensitiveness on his part. The object with which S.235(2) Cr.PC was
enacted appears to have been completely ignored by him. [653-A-B)

6. There are inhere.nt infirmities in the prosecution evidence regard-
D ing the complicity of A4 and AS in the offence of murder. The only
circumstance which the prosecution has been able to prove against A4 and
AS is the recovery of certain articles belonging to the deceased from their
possession. Evidence has been led to show that articles belonging to the
deceased were recovered on disclosure statements made under S.27,
Evidence Act. The e.vidence of recoveries is reliable and trustworthy. A4
E and AS can only be'held liable for being in possession of stolen property
and, thus, guilty of an offence under S.411, IPC. As a result, A4 and AS
are acquitted of the offences charged but convicted for the offence under
S.411 IPC and sentenced to the term of imprisonment already undergone.
[651-A-G, 655-D)
F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 47-50 of 1994 etc. etc.

From the Judgment and Order dated 16.11.93 of the Karnataka High
Court in Crl. A. No. 217/92 C/W 221 of 1992.
G
Naresh Kaushik, Shankar Divate and Mrs. Lalita Kaushik for the
Appellants.

P.S. Poti and Ms. Malini Poduval for the Respondent.

H The Judgment of the Court was delivered by
ANSHAD v. STATEOFKARNATAKA[DR.ANAND,J.] 645

DR. ANAND, J. These are appeals by special leave and since they A
I'._.
aii;;e out of the common judgment of the High Court, they are being
disposed of together.

Rajan (Al), Shashi (A2), Anshad (A3), Raju (A4) and Raghu (A5)
were tried by the Second Additional Sessions Judge, Bangalore for offen-
ces under Section 396, 449, 395 and 307 IPC and convicted. They were B
sentenced to suffer imprisonment for life and to pay a fine of Rs. 250 each
and in default to suffer rigorous imprisonment for three months under each
I
' of the charges under Sections 449 IPC, 396 !PC as well as under Section
307 IPC. Separate sentence for offence under Section 395 !PC was not
. passed by the learned trial court which rendered its judgment on 8th May C
1992. The appellants challenged their conviction and sentence in the High
Court and the State also filed an appeal seeking enhancement of the
sentence of imprisonment. The High Court vide its judgment dated 16th
November 1993, dismissed the appeal filed by the appellants but partly
allowed the appeal filed by the State in respect of Al, A2 and A3. Their
sentence of life imprisonment was enhanced to that the death sentence. D
The prosecution case is as follows :
•
Al who is a painter by profession developed acquaintanceship with
the deceased Savitri Devi, a widow aged about sixty years, when he was E
engaged to paint a name board for a school which the deceased wanted to
open. He had later on also painted a scenery in the portion of the house
occupied by her son PW36. Since, the school did not function properly it
was closed about six months prior to the date of the occurrence whicli took
place on 21st September 1988. The deceased Savitri Devi requested PW32
to find a tenant for the building in which the school was functioning and F
; indicated the rent she expected as well as the amount of rent to be received
in advance. The deceased was living in the second floor of a three storeyed
building called 'Savitri Niwas' at Kumara Park, West of Bangalore. There
were three tenants living in the basement while the ground floor was vacant
and the first floor was occupied by PW36, Gopal son of the deceased. The G
ground floor which was lying vacant had in fact been allotted in a family
arrangement by Savitri Devi to her second son PW 34.

Savitri Devi Deceased was living on the second floor of the house
along with Yashoda and Bhagya two maid-servants. Sunil, the second
deceased in the case is the grand son of Savitri Devi, being the son of her H
646 SUPREME COURT REPORTS (1994] 3 S.C.R.

A daughter Vandana. He was aged about 15 years and had come to stay with -..' ,
her.

Al had been introduced to the deceased by PW32 while A2 and A3
were introduced to PW32 by Al about one week prior to the occurrence.
On commg to know that the school building was intended to be let
B
out, Al met PW32 in the house of the deceased and introduced A2 and
A3 to the deceased as Cardamom Estate owners of Kerala ·and tolJ her
that they were interested in striking a deal regarding renting of the school 'I
building.

C In the locality where deceased Savitri Devi was living, there is a
Sindhi Hall in which the deceased had some interest. There is a Shiva
Temple in that Hall. PW32 had been employed to carry out some repair
work in the Temple . On 20th September 1988, PW 32 approached Al and
asked him whether he would decorate the dome of the Temple with a
D flower painting. A sketch of the flower to be sci painted was prepared by
Al, who took the same to the deceased for approval. Al left the sketch
with the deceased who asked him to come the following morning to receive
advance money for executing the painting work. It was on the next day i.e.
21.9.1988 that the occurrence took place in which Savitri Devi and Sunil
E were murdered and injuries were caused to PW2 and PW3 also. .-
To appreciate the prosecution case, it would be useful to extract the
relevant portion of the evidence of PW2 Sanjay. He deposed at the trial
that the he was studying the !Xth standard while his brother PW33 was
studying in Vth standard. On the fateful day, he returned from school at
F about 4 p.m when his father left for the shop. Sunil deceased, who was his
cousin was seen by him around 7.30 p.m. along with Al coming down from
the second floor. On inquiry, Sunil disclosed that he was going to drop his
friend, namely, Al. After a little while Al alone was seen going up to the
second floor. Sanjay went to his room and started studying. Around 7.30.
G p.m. he received a call from his uncle Gopal Dass asking him to find out
whether Sunil had reached the house. He told his father that he had seen
Sunil going out to drop a friend and was told to inquire from the grand-
mother as to at what time he would return. Sanjay therefore went to the
main hall and opening the door called out to his grand-mother but there
was no response. He then walked up to the second floor and found the
H doors open, the lights were on and the T.V. was on with the volume at a
ANSHAD v. STATEOFKARNATAKA [DR.ANAND,J.J 647

high pitch. He called out for his grand-mother but again there was no A
' \. response. From the front room he entered the passage when all of the
sudden Al pushed him back with his shoulders and when he tried to enter
again, Al gagged his mouth with one hand and caught hold of his neck
with the other and dragged him towards the passage. He noticed his
grand-mother lying flat on the floor, at the entrance of the bed room and
a person standing next to her having a cloth bundle in his hand. He was B
removing jewellery from the person of his grand-mother and putting it in
the bundle. The said person was later on identified as A3. Sanjay PW2 also
.,; noticed that A2 was also standing next to his grand-mother near A3. He
tried to extricated himself from the clutches of Al but could not succeed
and was dragged by Al towards the dining hall and his head was banged
on the show case. Al then pushed PW2 into the puja room where he found
c
two more person standing near the almirah. His effort to escape from the
clutches of Al was futile. Al pushed him on to a cot and squeezed his
neck. He became unconscious. When he regained consciousness he found
Al and the other two persons, later on identified as A4 and A5, were not
in the puja room. He came out of the puja room and went to the dining D
hall, where he found Sunil deceased lying on the ground. He turned him
'
around and discovered that Sunil was not breathing but there was bleeding
from his nose. He also noticed some injuries on his neck and that the wrist
watch, a gold chilln and the platinum ring were missing from the person of
Sunil. At the same time 1 ~e saw his grand-mother's maid servant Yashoda
untying the hanch of the other maid servant PW3. He then walked upto his E
grand mother who also had a bleeding injury and found that she was also
not breathing. A2 and A3 whom he had earlier seen standing near his
grand-mother, were also not in the room. He noticed the golden neck
chain, a diamond ring and golden bangles apart from a gold ring missing
from the person of his grand-mother. On entering his grand-mother's room
F
he found all the cup boards opened and things lying scattered. Nobody was
• present there. He was shocked and went to the room to make a telephone
call to police but found that the telephone wire had been cut. Leaving
Yashoda and the maid PW3, on the second floor, he went dowi; to the
first floor to telephone the police from there. He dialed the police control
room at telephone No. 100 at about 8.30 p.m. and gave the information G
that his grand-mother and his cousin has been killed and that their house
had been robbed. He then made an attempt to speak to his parents on the
telephone but was not successful. Dr. Baliga PW4, the family doctor was
called to the house and after examining his grand-mother and Sunil, he
declared them both dead.
H
648 SUPREME COURT REPORTS [1994] 3 S.C.R.

A On receipt of the information from the police control room, sub-
inspector Lav Kumar PW41 reached the spot. He recorded the statement -./ ,
of Soni! PW2 which forme<l basis of the FIR Ex.PS at about 9.45 P.M. PW2
told PW41 that after examining the articles in the house, he would be able
to give a list of the missing articles which the assailants may have removed
B from the house during the robbery. PW41 commenced the investigation
and prepared inquest report of the dead bodies beside preparing the site
plan etc. During the inquest proceedings PW41 also recorded the state-
ments of PW2 and PW3 among others. PW2 further deposed at the trial
that he furnished the list of missing articles Ex P7 to the investigating '\

C Officer. About two days prior to 21 October 1988, the police had asked
PW2 to attend the jail premises with a view to identify the culprits. He
went to the jaif where about 35 persons of almost the same age, height and
built were made to stand. A tehsildar conducted the identification parade.
He correctly identified A2 to A5 as the assailants who had been seen by
him in the house on the fateful day. Al was not there. The witness (PW2)
D was then sent out and the participants in the identification parade were
made to change their clothes and stand at different places. PW2 was once
again called in and the this time again he correctly identified A2 to A5 as
the assailants. He also identified the missing articles after the same bad
been recovered by the police from Al to A5 during the investigation.
E
The statement of PW2 has been corroborated in all material par-
ticulars by Bhagya PW3, the maid servant. She deposed that for a period
of about three years she had been working with the deceased Savitri Devi.
She knew Al who used to visit the house of the. deceased often and that
F A2 and A3 had also visited the house of the deceased about 15 days prior
to the incident apart from their visit on the date of the occurrence itself.
Describing the incident she stated that at about 7 p.m. Sunil had returned
home and she alongwith the deceased witnessed the 'chitrahar' on the
Television. After the 'chitrahar' was over, Al along with A2 and A3 came
to the house. All the three of the them sat there talking to deceased Savitri
G Devi and later on she saw Al and Sunil going out while A2 and A3 had
remained in the house. She served water to A2 and A3 and on her asking
Savitri Devi as to what should be cooked for the dinner, Savitri Devi came
to the kitchen to give her provisions for cooking the dinner. After giving
her the provisions she returned to where A2 and A3 were sitting. While
H she was mixing wheat flour to prepare chapatis, A3 came to the kitchen
A
ANSHAD v. STATEOFKARNATAKA[DR.ANAND,J.] 649

and immediately tied her with a cloth and holding her neck by one hand A
' \, dragged her behind the dining hall. At that time she saw that two other
persons enter the puja room, out of whom one had a flat nose and fat lips.
Her hands were tied at the back by A3 and she was pushed near the bath
room where she fell down. A towel was tied around her neck and pulled
as a result of which she became unconcious. That after some time when
she regained her consciousness somewhat and came towards the dining
B
hall, she saw Savitri Devi deceased lying on the floor near the door of the
room while A3 was removing the jewellery of Savitri Devi from her person
and A2 was standing near him. Al was standing at the passage near the
door of the ver~ndah. Just then PW2 came calling out for his grand-mother,
Al immediately held PW2 by his neck and dragged him to the dining hall c
and then pushed him into the puja room. That after she had regained
consciousness, Yashoda PW 12, another maid in the house, untied her
hands. She also noticed Sunil deceased lying on the floor with bleeding
from the nose. At that time none of the accused person was in the house.
She went on to add that as she had seen all the accused persons she could
D
identify them. She deposed about the missing articles of Sunil as well as of
Savitri Devi deceased from their persons. She. also deposed about the
-. arrival of the police and recording of her statement during the investigation
r
of the case. She then deposed about her participation in the identification
parade in the jail where she had, however, identified A2, A3 and A5 only.
E
The prosecution, at the trial examined 42 witnesses. The material
witnesses who spoke about the occurrence are PW2 and PW3. Beside the
testimony of PW2 and PW3, the prosecution relied upon various other
circumstances, namely, medical evidence, recovery of articles belonging to
deceased Savitri Devi and deceased Sunil; the identification of the accused F
persons A2 to A5; the expert evidence of the finger print expert; the
., testimony of PW25 and PW27 with a view to establish that A4 and AS had
hired a room in a hotel called Kailash Bhavan about the same time as the
occurrence; the manner in which Al came into contact with the deceased
Savitri Devi and how PW32 introduced A2 and A3 to him and he intro-
duced them to the deceased by giving a false status of both of them. G
Evidence of the son of the deceased PW36 was led to support the deposi-
tion of PW2. All the stages of investigation were supported by production
of panch witnesses etc. Both the courts below have carefully analysed the
evidence and extracted it in their judgments and we need not, therefore,
reproduce the same again. H
650 SUPREME COURT REPORTS [1994) 3 S.C.R.

A Learned counsel for the appellants divided the case into two groups.
."' i
The first group consists of Al, A2 and A3 while the second group consists
of A4 and A5. Al was arrested on 28th November 1988 while A2 was
arrested on 6.10.88 and A3 to A5 on 7.10.88.

Mr. Naresh Kaushik, learned counsel arguing for Al, A3, A4 and A5
B
submitted that the prosecution had failed Lu establish the case against A4
and A5 beyond any reasonable doubt. He took us through the relevant ,
parts of the evidence and we find some of force in his submissions. It is I
seen from the evidence that the names of A4 and A5 do not find any
mention in the FIR and it was not even mentioned in it that besides Al to
c A3 any other person was also the associate of Al to A3. As a matter of
fact in the FIR Ex. P.5 at more than one places, only three persons are
alleged to be the assailants in the case. In the inquest report also we find
that the statements of PW2 and PW3 were recorded during the inquest
proceedings. There again only three persons were mentioned as assailants
D by both PW2 and PW3. Again, at the identification parades, though PW2
identified A4 and A5 also besides A2 and A3, PW3 was only able to
identify A2, A3 and A5. Both the trial court and the High Court for good
and sound reasons rejected the evidence of PW25 and PW27 and found
that the prosecution story A4 and A5 had hired a room in Kailash Bhavan
Hotel about the same time when the occurrence took place was not correct.
E This circumstance was held not established in the case and we are in
agreement with that finding. At the trial, however, we find that PW2 as well
as PW3 attempted to make definite improvements over their earlier state-
ments when they tried to implicate A4 and A5 also in the crime by putting
up a new story that when PW2 was pushed into the puja room when he
F saw A4 and A5 standing near the alrnirah or that PW3 had seen two
persons enter the puja room when her mouth was being gagged and hands
tied by A3. As already noticed PW2 had not mentioned it in the FIR Ex
.J!. 5 or in his statement recorded during the inquest proceedings and PW3
had not given this version either in her police statement or in her statement
recorded during the inquest proceedings. It appears to us that PW2 and
G PW3 have made definite improvements in their testimony with a view to
implicate A4 and A5 also for reason best known to them. Moreover, the
pt osecution has not been able to show any connection whatsoever between
A4, A5 with the other accused Al to A3 by leading any evidence at all. It
is also relevant to note here that so far as the finger print expert PW20 is
H concerned, he did not lift any finger prints of AS from the place of
ANSHAD v.STA'TEOFKARNATAKA[DR.ANAND,J.] 6Sl

' \-- occurrence. The expert opinion regarding the alleged comparison of the A
finger prints of A4 allegedly lifted from the place of occurrence and the
admitted finger prints of A4 has been successfully challenged and shattered
in the cross-examination of the expert and it would not be safe to place
any reliance on the expert evidence to connect A4 with the crime or even
to hold that A4 was present in the house of the deceased at the time of
the occurrence. The only circumstance which the prosecution has been able
B
to prove against A4 and AS is the recovery of certain articles belonging to
I
! the deceased from their possession. Evidence has been led to show that
the wrist watch belonging to Sunil was recovered from A4 on a disclosure
statement made by him under Section 27 of the Evidence Act while one
gold ring belonging to Savitri Devi was recovered from A5 on his disclosure c
statement recorded under section 27 of the Evidence Act. The evidence of
recoveries is reliable and trustworthy. Both the trial court and the High
Court have rightly believed the recovery evidence. Nothing has been bought
to our notice to throw any doubt on the same either. Neither the ownership
of the articles nor the testimony of the panch witnesses has been doubted. D
We, consequently, accept that the two recoveries referred to above were
made from A4 and AS and that those articles belonged to the deceased.
Thus, the only circumstance which can be said to have been established
against A4 and AS is that they were found in possession of a wrist watch
and a gold ring belonging to the deceased Sunil and Savitri Devi respec-
tively. That in our opinion is not sufficient material to hold them guilty of E
being participants in the crime of murder more particularly since the
prosecution has led evidence to show that Al to A3 had disposed of some
of the article removed from the house of the deceased and got converted
some other into different ornaments from the two goldsmith produced as
witness in the case. A4 and AS can only be held liable for being in F
, possession of stolen property and, thus, guilty of an offence under Section
411 !PC. In our opinion, both the trial court and the High Court failed to
properly appreciate the inherent infirmities in the prosecution evidence
regarding the complicity of A4 and AS and fell in error in convicting them
also for the offence of murder. Considering the evidence on the record, we
set aside their conviction and sentence as recorded by the trial court and G
the High Court and instead convict them for an offence under Section 411
!PC only. We shall refer to the question of sentence later.

We shall now take up the case of Al to A3. The prosecution case
regarding their complicity in the crime has been brought out from the H
652 SUPREME COURT REPORTS [1994] 3 S.C.R.

A evidence of the prosecution witnesses including the injured witnesses PW2
and PW3. Their testimony with regard to the involvement of Al to A3 in
the crime·!ias remained totally unshakened during the cross examination.
The order.evidence led by the prosecution including the manner in which
Al falsely introduced A2 and A3 to the deceased and how taking ad-
vantage of the confidence he had built up with her, he not only secured his
B entry but also the entry of A2 and A3 into her house and gave their false
introduction to her has been proved in the case beyond every reasonable
doubt. The medical evidence, the evidence of the fmger print expert and
I
the evidence of recovery of the property belonging to the deceased directly
and positively connects Al, A2 and A3 with the crime.
c
Faced with the over-whelming cogent and reliable prosecution
evidence which has been rightly accepted both by the trial court and the
High' Court, learned counsel for the appellants M/s P.S. Poli and Naresh
Kaushik, submitted that it was not a fit case for the award of the sentence
of death. Learned counsel argued that the High Court should not have in
D the circumstances of the case enhanced the sentence of Al to A3 from that
of life imprisonment as imposed by the trial court to that of death. Learned
counsel argued that since the trial court has used its discretion to award
the lessor sentence, the High Court without giving any strong "special
reasons 11 could not have enhanced it.
E
We have given our serious considerations to the question of convic-
tion and sentence of Al to A3.

Indeed .with the acquittal of A4 and AS, the conviction of Al, A2
and A3 for an offence under Section 39~ !PC ca.nnot stand because the
F number of accused would in that tase be less than five. However, the
evidence on the record does show that all the three accused Al, A2 and
A3, are responsible for the murder of Savitri Devi and Sunil as also for
committing robbery and theft of the articles belonging to the deceased in
the manner suggested by the prosecution. No challenge to the recovery of
G the ornaments and other articles was made and rightly so, in the face of
the cogent, reliable and positive evidence produced by the prosecution.
The appellants Al to A3 in our opinion can safely be convicted for an
offence under Section 302/34 !PC read with Sections 394/34 and 379/34
!PC. We accordingly modify their convictions in the manner noticed above.

H Of course the learned Session Judge dealt with the question of
ANSHAD v. STATEOFKARNATAKA[DR.ANAND,J.] 653

sentence in a rather cryptic manner and after pronouncing the order of A
conviction on 8th May itself, on the same day by a one paragraph order
dealt with the question of sentence. The manner in which the learned
Sessions Judge dealt with the question of sentence under Section 235(2)
Cr. P.C. leaves much to be desired. The object for which Section 235(2)
Cr. P.C. was brought on the statute book appears to have been completely
ignored by him. We disapprove the manner in which he decided the
B
question of imposition of sentence in a rather cryptic manner. It exposes
I
I lack of sensitiveness on his part while dealing with the question of sentence.
We need say no more on this topic so far as the learned Sessions Judge is
concerned.
c
We have perused the reasons given by the High Court for awarding
the sentence of death. Apart from referring t<J some of the "aggravating
circumstances" like the betrayal of confidence of the deceased by Al and
murder for committing robbery on a helpless widow, the High Court only
referred to some of the judgments of this court and then almost abruptly D
came to the conclusion that the sentence of death was calling for in the
instant case. We notice with regard that the High Court did not take into
account any of the mitigating circumstances at all. Courts are expected to
exhibit sensitiveness in the matter of award of sentence particularly, the
sentence of death because life once lost cannot be brought back. This
Court has in cases more than one emphasised that for determining the E
proper sentence in a case like this while the cowt should take into account
the aggravating circumstances it should not over look or ignore the mitigat-
ing circumstances. The manner ln which the crime was committed, the
weapon used and the brutality or the lack of it are some of the considera-
tions which must be present to the mind of the court. Of course, the High F
Court has the power and jurisdiction to enhance the sentence of life
imprisonment to death but that power has to be sparingly exercised, in
11
rarest of the rare case 11 for 'special reasons' to be recorded. The courts
must be alive to the legislative changes introduced in 1973 through Section
354(3) Cr. P.C. Death sentence, being an exception to the general rule,
should be awarded in the "rarest of the rare" for 'special reasons' to be G
recorded after balancing the aggravating and the mitigating circumstances,
in the facts and circumstances of a given case. The number of persons
murdered is a consideration but that is not the only consideration for
imposing death penalty unless the case falls in the category of "rarest of
the rare cases'1• The courts must keep in view the nature of the crime, the H
654 SUPREME COURT REPORTS (1994] 3 S.C.R.

A burtality with which it was executed, the antecedents of the criminal, the
weapons used etc. It is neither possible nor desirable to catalogue all such
factors and they depend upon case to case.

Some of the mitigating circumstances which have been pointed out
by learned counsel for the appellants and of which notice was not taken by
B the High Court are :

(a) that Al to A3 had gone to the house of the deceased empty
handed and did not even pick up and weapon like knife etc. from the house
of the deceased nor used any such weapon while committing the murder
of the two deceased ;
c
(b) that they did not do away with the lives of PW2 and PW3, the
only two eye witnesses and thereby screen the offence completely ;

(c) that there is noting on the record to show that they acted in an
D exceptionally brutal or cruel manner while committing murder.. The medi-
cal evidence shows only abrasions and scratches on the body of the
deceased cause by nails frictions ;

(d) there is nothing on the record to show as to .which out of the
three appellants strangulated which of the two deceased! ;
E
(e) the manner in which the crime was committed and the jewellery
removed from the person of the deceased would also show that Al to A3
took off the jewellery from the person of the deceased by removing the
same rather than tore it off from their bodies causing any injuries to the
deceased;
F .>·
There arc some other minor mitiaging circumstances also which were
pointed out from the evidence but we need not detain ourselves to refer
to all of them. It appears to us that the object of the appellants Al to A3
w\ts to commit theft/robbery in the house of the deceased but finding the
deceased there and some resistance and being surprised by the entry of
G Sunil they tried to drag and gag her as well as her grandson, Sunil, when
he appeared on the "pot and strangulated them by the use of towels, which
unfortunately proved fatal. From the statement of PW2 it appears that
deceased Savitri Devi died after the appellants had left and therefore it is
+.
possible to say that the appellants may have attempted only to render her
H unconscious for decamping with the jewellery and other articles. The
ANSHAD v. STATEOFKARNATAKA[DR.ANAND.J.] 655

> \ reasons given by the High court to enhance the sentence to life imprison~ A
ment to death, without taking into account all circumstances ~nd balancing
the aggravating and the mitigating circumstances, 'in our opinion; are
neither 'special reasons' nor otherwise adequate and sufficient to impose
the sentence of death on either of the three convicts Al to A3. In taking
this viev.· we are also influenced by the view expressed by a three Judges'
Bench of this Court in Dalip Singh v. State of Punjab, AIR (1953) SC 364.
B
The circumstances noticed above, coupled with the fact the offence under
Section 396 !PC has not been made out, dictates that we adopt the safer
course and impose the .sentence of life imprisonment on Al, A2 and A3
for the offence under section 302/34 !PC and set aside the sentence of
death. We do so accordingly. We also sentence them each to suffers C
imprisonment for a period of five years for the offence under Section
394/34 !PC and while convicting them for the offence under Section 379/34
!PC. we do not consider it necessary to pass any separate sentence of
imprisonment on them. The substantive sentences shall run concurrently.

As a result of the above discussion, the appeals of A4 and A5 are D
partly allowed and they are acquitted of the offences charged but convicted
for the offence under Section 411 !PC and sentenced to the term of
imprisonment already under gone by them. The conviction of Al, A2 and
A3 is altered to the one under Section 302/34 !PC. 394/34 !PC and 379/34
!PC and they are sentenced in the manner noticed above. To the extent E
indicated hereinabove their appeals are also partly allowed. A4 and A5
shall be set at liberty forthwith, if not required in any other case. The
recovered property shall be handed over to the heirs of the deceased, if
not already done.

U.R. Appeals are partly allowed.