Supreme Court of India
DEEPAK RAIversusSTATE OF BIHAR
- Citation
- 2013 INSC 638
- Decided
- 19 September 2013
- Disposal
- Disposed off
- Bench
- H L DATTU
Holding
Under Article 136 the Supreme Court may examine and, if necessary, supplement the special reasons for a death sentence without remand, and the present facts render the offences of A1 and A2 the rarest of rare, justifying death, while A3’s role warrants life imprisonment.
Summary
The appellants Jagat Rai, Deepak Rai and Bachcha Babu Rai were convicted for the pre‑meditated murder of an informant, his wife and five children by locking them in a house and setting it ablaze, motivated by the informant's refusal to withdraw an FIR. The trial court sentenced all three to death, a decision affirmed by the High Court, and the appeals before this Court were limited to the question of sentence. The principal issues were whether the lower courts had complied with Section 354(3) of the CrPC by recording "special reasons" for the death penalty, whether the case qualified as "rarest of rare" warranting capital punishment, and the scope of the Supreme Court’s appellate jurisdiction under Article 136. The Court held that Article 136 confers an expansive jurisdiction allowing it to examine and supplement the special reasons without remanding, and that the death penalty is permissible only in exceptional cases that shock the collective conscience. It found that the conduct of A1 and A2 met the "rarest of rare" criteria, confirming their death sentences, while A3’s lesser role justified commuting his death sentence to life imprisonment. The stay on execution for A1 and A2 was vacated and the appeals were disposed.
Issues considered
- Whether the lower courts complied with Section 354(3) CrPC by recording "special reasons" for awarding the death sentence.
- Whether the Supreme Court, exercising jurisdiction under Article 136, must remand the case for fresh sentencing or can itself assess the adequacy of the special reasons.
- Whether the offences committed constitute the "rarest of rare" category justifying the death penalty.
- Scope and limits of appellate jurisdiction under Article 136 in criminal matters.
Legislation cited
- Code of Criminal Procedure, 1973s. 235(2), s. 354(3), s. 367(5)
- Constitution of Indias. Article 136
- Indian Penal Code, 1860s. 1208, s. 120B, s. 148, s. 149, s. 302, s. 307, s. 326, s. 429, s. 436, s. 452
Subjects
death penaltyspecial reasonsrarest of rareArticle 136sentencingIPC 302capital punishmentmitigating circumstancesaggravating circumstances
Judgment
[2013] 14 S.C.R. 297
DEEPAK RAI A
v.
STATE OF BIHAR
(Criminal Appeal Nos. 249-250 of 2011)
SEPTEMBER 19, 2013
B
[H.L. DATIU, SUDHANSU JYOTI MUKHOPADHAYA
AND M. Y. EQBAL, JJ.]
Sentence/Sentencing:
c
Death sentence - On conviction for offence u/s. 302 /PC
- Propriety of - Death penalty can be awarded only in
exceptional cases where the crime is so brutal, diabolical and
revolting so as to shock the collective conscience of the
community - In the present case, so far as the case of 0
accused Nos. 1 and 2 is concerned, the case falls under rarest
of rare category - The acts of murder committed by the
accused are so gruesome, merciless and brutal that the
aggravating circumstances outweigh the mitigating
circumstances - Hence their death sentence confirmed -
However, for accused No. 3, in view of the role played by him E
during commission of the offence, sentence of imprisonment
till the end of his life would be proportionate to the degree of
offence committed by him - His death sentence altered to
imprisonment till the end of his life - Penal Code, 1860 - s.
302. ' F
Sentencing - Determination of sentence - Judicial
approach - Held: Judicial approach towards sentencing has
to be cautious, circumspect and careful - The courts at all
stages must peruse and analyze the facts of the case and G
reach an independent conclusion - The touchstone for
determining correctness of decision, is not the length of
discussion, but the lucidity of the reasons.
297 H
298 SUPREME COURT REPORTS [2013] 14 S.C.R.
A Code of Criminal Procedure, 1973 - s. 354(3) - 'Special
masons' - Recording of - For award of death sentence -
Adequacy of - Held: s. 354(3) mandates recording of 'special
masons' for imposition of capital punishment - The test to
d'etermine the correctness of decision would be that the
B 'reasons' must be lucid and satisfy the appellate court that
court below has considered the case in toto and thereafter,
upon balancing all the mitigating and aggravating factors,
n9corded the sentence.
Constitution of India, 1950 - Art. 136 - Scope of - To
C e•xamine 'special reasons' for awarding death sentence as
e'nvisaged u/s. 354(3) Cr. P. C. - Held: The appellate
jurisdiction by virtue of Article 136 is not plain statutory, but
e1xpansive and extraordinary - Such jurisdiction is not fettered
by rules of criminal procedure, or limited to mere confirmation
D or rejection of the appeal - The Court while considering
correctness of sentence can not only examine the reasons
so assigned u/s. 354(3), but can also substantiate upon the
same - Code of Criminal Procedure, 1973 - s. 354(3) -
Sentence/Sentencing.
E
Remand - Of criminal case - By Supreme Court - For
cfeciding the question of sentence - Held: Remand is an
exception, not the rule - Ought to be avoided as far as
possible in the interest of expeditious, though fair disposal of
F cases.
Appellants A-1, A-2 and A-3 alongwith other accused
persons were prosecuted ulss. 1208, 148, 302/149, 307/
149, 326, 429, 436 and 452 IPC. The prosecution case
was that the accused persons came to the house of
G deceased informant (PW 7) while he was sleeping in the
verandah of his house at night. The accused persons
locked the room where the wife of PW 7 was sleeping
alongwith her five children and after sprinkling kerosene
<>ver the house, set it on fire. They first gagged PW 7 and
H then sprinkling kerosene over his body and set him on
DEEPAK RAI v. STATE OF BIHAR 299
fire. On the basis of Fardbayan, FIR was registered. The A
alleged motive for the offence was that the informant had
lodged an FIR against A-1 and his family alleging theft of
his bufallow and despite repeated threats, the informant
refused to withdraw the FIR. Trial court convicted the
appellants-accused while acquitting the rest of the B
accused and sentenced them to death. High Court
affirmed the order of trial court as well as death reference.
Hence the present appeals. The appeals are limited to the
question of sentence.
A-1 contended that since no extraordinary reasons C
have been assigned by courts below for awarding death
sentence to the accused, the orders do not conform to
the statutory mandate prescribed u/s. 354(3) Cr.P.C.
which requires the judgment to record 'special reasons'
in case of death sentence; that this Court in exercise of D
appellate jurisdiction could not go into the same for the
first time while confirming the death sentence and
therefore the matter was required to be remanded to trial
court for fresh consideration on the question of sentence
as per s. 354(3) Cr.P.C. E
A-2 and A-3 contended that mitigating circumstances
overwhelmingly outweigh the aggravating circumstances
and therefore ends of justice would only be ~chieved by
commuting their death sentence to life imprisonment. F
Disposing of the appeals, the Court
HELD: 1.1. It is not correct to say that in case, the
failure on the part of the Court, which has convicted an
accused and heard him on the question of sentence but G
failed to express the "special reasons" in so many words,
must necessarily entail a remand to that Court for
elaboration upon its conclusion in awarding the death
sentence for the reason that while exercising appellate
H
300 SUPREME COURT REPORTS [2013] 14 S.C.R.
A jlllrisdiction, this Court cannot delve into such reasons.
[Para 21] [323-F-G]
1.2. The appellate jurisdiction vested in this Court by
virtue of Article 136 is not plain statutory but expansive"
aind extraordinary. The Court exercises its discretion and
8
grants leave to appeal in cases where it is satisfied that
the same would circumvent a grave miscarriage of justice.
Such jurisdiction is not fettered by rules of criminal
procedure but guided by judicially evolved principles.
C [Para 23] [324-B-C]
State of UP. v. Dharmendra Singh (1999) 8 SCC 325:
1999 (3) Suppl. SCR 52 - relied on.
1.3. An appeal by special leave under Article 136 is a
0 continuation of the original proceedings. The scope of an
appeal under Articles 136 and 226 cannot be wider than
the earlier proceedings. Thus, jurisdiction of this Court
in appeal under Article 136 though circumscribed to the
scope of earlier proceedings is neither fettered by the
E rules of criminal procedure nor limited to mere
c:onfirmation or rejection of the appeal. This Court while
c:onsidering the question of correctness or otherwise·of
the sentence awarded by the Courts below has exercised
discretionary jurisdiction under Article 136 and hence can
not only examine the reasons so assigned under Section
F 354(3) but also substantiate upon the same, if need so be.
[Paras 25 to 27] [325-D, H; 326-A-C]
Moran M. Base/ios Marthoma Mathews II v. State of
Kera/a (2007)-6 SCC 517: 2007 (4) SCR 876; Netai Bag v.
G State of WB. (2000) 8 sec 262 - relied on.
2.1. Under s. 235(2) Cr.P .C., the Court on convicting
an accused must unquestionably afford an opportunity
to the accused to present his case on the question of
H sentence and under Section 354(3) record the
DEEPAK RAI v. STATE OF BIHAR 301
extraordinary circumstances which warrant imposition of A
death sentence keeping in view the entire facts of the
case and the submissions of the accused. In doing so if,
for any reason, it omits to do so or does not assign
elaborate reasons and the accused makes a grievance
of it before the higher court, It would be open to that B
Court to remedy the same by elaborating upon the said
reasons. (Para 44] (335-H; 336-A-B]
2.2. Even when the reasons recorded by the Courts
below do not conform to the statutory mandate or the
judicially evolved principles, this Court, should reach the C
conclusion that harsher sentence of death requires to be
imposed, could supplement them so as to justify the
imposition of such sentence instead of remanding the
matter to Courts below for re-consideration on the
question of sentence. [Para 44] (336-C] D
2.3. If this Court opines to the contrary that the facts
and circumstances of the case do not require imposition
of capital punishment and the ends of justice would be
achieved by a les~ harsh sentence, it could accordingly E
commute the sentence awarded by the Courts below.
Remand is an exception, not the rule, and therefore
ought to be avoided as far as possible in the interests of
expeditious, though fair, disposal of cases. (Para 44]
(336-D-E] F
Dagdu v. State of Maharashtra (1977) 3 SCC 68: 1977
(3) SCR 636 -relied on.
2.4. It is not the case of the appellants that the
opportunity to be heard on the question of sentence G
separately as provisioned for under Section 235(2) of the
Code was not provided by the Courts below. Further, the
Trial Court has recorded and discussed the submissions
made by the appellants and the prosecution on the said
question and thereafter, rejected the possibility of H
302 SUPREME COURT REPORTS [2013] 14 S.C.R.
A awarding a punishment less harsh than the death penalty.
However, the High Court while confirming the sentence
ha1s recorded reasons though encapsulated. The High
Court has noticed the motive of the appellants being non
withdrawal of the case by the informant and the ghastly
8 m.anner of commission of crime whereby six innocent
persons as young as 3 year old were charred to death
and concluded that the incident shocks the conscience
of the !'!ntire society and thus deserves nothing lesser but
dE!ath penalty. [Para 45] [336-F-H; 337-A]
c 2.5. There being no impropriety by the Courts below
in compliance with the procedure prescribed under law
for sentencing the appellants, only the question of
adequacy and correctness of the special reasons
assigned for awarding sentence of death requires to be
D considered by this Court. It is only upon examination of
the facts and circumstances of the case could the
adequacy of the special reasons recorded by the Courts
bi~low be determined by this Court. (Para 46] (337-8-C]
E 3.1. Legislation of Code of Criminal Procedure, 1973
brought a shift 'in the then existing penological trend 'by
making imprisonment for life a rule and death sentence
an exception. It makes it mandatory for the Court in cases
o·f conviction for an offence punishable with
F imprisonment for life to assign reasons in support of the
simtence awarded to the convict and further ordains that
in case the Court awards the death penalty, "special
reasons" for such sentence shall be stated in the
jllldgment. [Para 30] (326-G-H; 327-A]
G Bachan Singh v. State (1980) 2 SCC 684; Shashi Nayar
v. Union (1992) 1 SCC 96: 1991 (2) Suppl. SCR 103 -
followed.
Ediga Anamma v. State of Andhra Pradesh (1974) 4
H SCC 443: 1974 (3) SCR 329; Al/auddin Mian v. State of Bihar
DEEPAK RAI v. STATE OF BIHAR 303
(1989) 3 SCC 5: 1989 (2) SCR 498; Swamy Shraddananda A
(2) v. State of Karnataka (2008) 13 SCC 767: 2008 (11) SCR
93; Sandesh v. State of Maharashtra (2013) 2 SCC 479:
2012 (13) SCR 1049 - relied on.
Jagmohan Singh v. State of U. P. (1973) 1 SCC B
20:1973(2) SCR 541; State of Maharashtra v. Goraksha
Ambaji Adsul, (2011) 7 SCC 437; Sangeet v. State of
Haryana, (2013) 2 SCC 452; Sandesh v. State of
Maharashtra, (2013) 2 SCC 479; Joseph v. State of Goa
(1977) 3 sec 280: Harnam v. State of U.P. (1976) 1 sec c
163: 1976 (2) SCR 274 - referred to.
3.2. Under s. 354(3) of Cr.P.C., the legislature casts a
statutory duty on the Court to state reasons for choice
of the sterner sentence to be awarded in exceptional
cases as against the rule of life imprisonment and by D
necessary implication, a legal obligation to explain them
as distinguished from the expression "reasons" follows.
The legislative mandate of assigning "special reasons"
assures that the imposition of the capital punishment is
well cc;>nsidered by the Court and that c;>nly upon E
catego'rization of the case as "rarest of r'are", thus
leaving no room for imposition of a less harsh sentence,
should the Court sentence the accused person to death.
[Para 42] (335-C-D]
F
3.3. The judicial approach towards sentencing has to
be cautious, circumspect and careful. The Courts at all
stages-trial and appellate, must therefore peruse and
analyze the facts of the case in hand and reach an
independent conclusion which must be appropriately and
cogently justified in the "reasons" or "special reasons" G
recorded by them for imposition of life imprisonment or
death penalty. The length of the discussion would not be
a touchstone for determining correctness of a decision.
The test would be that reasons must be lucid and satisfy
the appellate Court that the Court below has considered H
304 SUPREME COURT REPORTS [2013] 14 S.C.R.
A the case in toto and thereafter, upon balancing all the
mitigating and aggravating factors, recorded the ·
sentence. [Para 43] [335-E-G]
Ba/want Singh v. State of Punjab (1976) 1 SCC 425;
B Muniappan v. State of T.N. (1981) 3 SCC 11: 1981 (3) SCR.
270; Dagdu v. State of Maharashtra (1977) 3 SCC 68: 1977 ·
(3) SCR 636; Rajesh Kumar v. State (2011) 13 SCC 706;
Ambaram v. State of M.P. (1976) 4 SCC 298 - held
inapplicable.
C 4.1. Only in those exceptional cases where the crime
is £;o brutal, diabolical and revolting so as to shock the
collective conscience of the community, would it be
appropriate to award death sentence. Since such
cir<:umstances cannot be laid down as a straight jacket
D formula but must be ascertained from case to case, the
legislature has left it open for the Courts to examine the
facts of the case and appropriately decide upon the
sentence proportional to the gravity of the offence. [Para
51] [343-H; 344-A-B]
E
4.2. In ,the· present case, the time, place, manner of
and the motive behind commission of the crime speak
volumes of the pre-meditated and callous nature of the
offence. The ruthlessness of the appellants is reflected
through brutal murders of the young, innocent children
F and wife of the informant by burning them alive to avenge
their cause in the dark of the night; the cause being non-
withdrawal of an FIR filed by the informant for theft of his
buffalo against the appellant-A1. Further, only family
members of the informant have come forward to depose
G as the entire village must have been shocked with the
ghastly murders of the deceased persons and in such
cir1::umstances would not have come forward to testify
against the appellants who already had translated the
thr1eats given to the informant in village panchayat into a
H shocking reality. Civilized people generally unsuccinctly
DEEPAK RAI v. STATE OF BIHAR 305
when the crime is committed infact in their presence, A
withdraw themselves both from the victim and the
vigilante unless inevitable and consider that crime like
civil disputes must restrict itself to the two parties, it also
evidences for the threat the incident had instilled
amongst the villagers that none in such close knit unit B
besides the sanguine relatives had come forth to testify
against the accused. [Para 82) [356-D-H; 357-A]
4.3. The mitigating circumstances in respect of
comparatively young age of the appellants holds no
ground, their army background and their custodial C
behavior fail to outweigh the aggravating factors in the
present case. The plea that the appellants are not
"antisocial elements" fails into inception in the light of the
effect of the occurrence reflected through the abstinence
of the villagers from deposing against them at the trial. D
[Para 83) [357-B-C]
4.4. So far ,as the r:riitigating factors of lack of criminal
antecedents or probabilities of the appellants to be
menace to the society are concerned, it is true that the E
underlying principle of sentencing 'juri~prudence is
reformation and there is nothing in evidence to show that
the appellants have been a threat or menace to the
society at large, besides the FIR regarding the theft of
buffalo. It is also true that it cannot be said that they F
would be a further menace to the society or not.
Nevertheless, the law prescribes for future, baseCI upon
its knowledge of the past and is being forced to deal with
tomorrow's problems with yesterday's toqls. [Para 85]
[357 ·F-H; 358-A]
G
4.5. While determining the gravity of the offence
committed by the appellants, it must be noticed that it is
only A1 who had threatened the informant of burning his
house in case the FIR against his family and him were not
H
306 SUPREME COURT REPORTS [2013] 14 S.C.R.
A withdrawn. Further, A1 during the occurrence not only
sc:ripted and instructed the rest of the unlawful assembly
but also lighted the matchstick to burn the house as well
a~; informant's body. A2, pushed the informant to the
ground and later fired at him. [Para 84) [357-D-E]
B
4.6. As regards A1 and A2, the instant case falls into
such category of rarest of the rare cases where culpability
has assumed the proportion of extreme depravity and the
appellant-accused are perfect example of a blood thirsty,
scheming and hardened criminals who slayed seven
C innocent lives to quench their thirst for revenge and such
re1venge evolving out of a fellow citizens refusal to
abstain from resorting to machinery of law to protect his
rights. The entire incident is extremely revolting and
shocks the collective conscience of the community. The
D ac:ts of murder committed by the appellants are so
gruesome, merciless and brutal that the aggravating
circumstances far outweigh the mitigating
circumstances. [Para 87] [358-C-E]
E 4.7. A1 and A2. have committed a cold blooded
murder in a pre-ordained fashion without any
pl'ovocation whatsoever. The motive behind the
gruesome act was to avenge the act of informant in
approaching the machinery of law enforcement inspite of
F threats by the appellants. The victims were five innocent
children and wife of the informant who were sleeping
unalarmed when the appellants came and locked them
inside· their house while it was set ablaze. Further, wrath
of A1 and A2 is reflected in their act of first gagging the
informant, thereafter attempting to burn him alive and
G later, when he tried to escape, firing at him thereby leaving
no stone unturned in translating their threats into reality.
As a result of the aforesaid incident, having witnessed the
threats of burning given by A1 to the informant tuned into
reality, none but the family of the deceased-informant
H
DEEPAK RAI v. STATE OF BIHAR 307
came forth to depose against the appellant-accused A
persons during the trial. The crime, enormous in
proportion having wiped off the whole family, is
committed so brutally that it pricks and shocks not only
the judicial conscience but even the collective
conscience of the society. It demands just punishment B
from the Court and the Court is bound to respond within
legal parameters. The demand for justice and the award
of punishment have to be in consonance with the
legislative command and the discretion vested in the
Courts. [Para 88] [358-F-H; 359-A-C] c
4.8. Having regard to the gravity of the offence
committed, with regard to A1 and A2, this case falls into
the category of rarest of the rare cases and is not a case
where imprisonment for life is an adequate sentence and
thus, constrained to reach the inescapable conclusion D
that death sentence imposed on A1 and A2 be confirmed.
Therefore, the sentence of death imposed on A1 and A2
is confirmed. [Paras 90 and 91] [359-G-H; 360-A]
4.9. However, while taking an overall view, no overt E.
act in the commission of crime could be attributed to A3.
The role played by A3 during commission of the crime,
as established, was to hold the barrels of kerosene along
with one other accused. Sentence of imprisonment till the
end of his life would appropriately serve as punishment F
proportional to the degree of offence committed by him.
'The sentence awarded to A3 is commuted to life
imprisonment till the rest of his life. [Paras 84, 86 and 91]
[357-C-D; 358-B; 360-A]
Macchi Singh v. State of Punjab (1983) 3 SCC 470: G
1983 (3) SCR 413; Ramnaresh v. State of Chhattisgarh
(2012) 4 SCC 257: 2012 (3) SCR 630; Gurdev Singh v. State
of Punjab (2003) 7 SCC 258: 2003 (2) Suppl. SCR 80 -
relied on.
H
308 SUPREME COURT REPORTS [2013] 14 S.C.R.
A Sunder Singh v. State of Uttaranchal (2010) 10 SCC 611
201,0 (11) SCR 927; M.A. Antony v. State of Kera/a (2009) 6
SCC 220: 2009 (6) SCR 829; Jagdish v. State of M.P. (2009)
9 SCC 495: 2009 (14) SCR 727; Prajeet Kumar Singh v.
Sts1te of 8ihar (2008) 4 SCC 434: 2008 (5) SCR 969; Ram
B Singh v. Sonia (2007) 3 SCC 1: 2007 (2) SCR 651; Holiram
Bordoloi v. State of Assam (2005) 3 SCC 793:2005 (3) SCR
406; Karan Singh v. State of UP. (2005) 6 SCC 342;
Gurmeet Singh v. State of UP. (2005) 12 SCC 107: 2005 (3)
Suppl. SCR 651; State of Rajasthan v. Kheraj Ram (2003)
c 8 sec 224: 2003 (2) Suppl. scR 861;
Om Prakash v. State of Uttaranchal (2003) 1 SCC 648:
2002 (4) Suppl. SCR 623; Praveen Kumar v. State of
Ka1rnataka (2003) 12 SCC 199; Suresh v. State of UP. (2005)
6 SCC 130: 2005 (1) Suppl. SCR 759; Ranjeet Singh v.
D State of Rajasthan (1988) 1 SCC 633; Ramdeo Chauhan v.
State of Assam (2000) 7 SCC 455: 2000 (2) Suppl. SCR 28
Narayan Chetanram Chaudhary v. State of Maharashtra
(21000) 8 SCC 457: 2000 (3) Suppl. SCR 104; Surja Ram v.
E State of Rajasthan (1996) 6 SCC 271: 1996 (6) Suppl. SCR
783; Ravji v. State of kajasthan (1996) 2 SCC 175: 1995 (6)
Suppl. SCR 195; Sudam v. State of Maharashtra (2011) 7
SCC 125: 2011 (6) SCR 1104; Atbir v. Govt. (NCT of Delhi)
(2010) 9 SCC 1: 2010 (9) SCR 993; Ajitsingh Harnamsingh
F Gujral v. State of Maharashtra, (2011) 14 SCC 401: 2011 (13)
SCR 1000; Mohd. Chaman v. State (NCT of Delhi) ·(2001) 2
SCC 28; Dilip Premnarayan Tiwari v. 'State of Maharashtra
(2010) 1 SCC 775: 2009 (16) SCR 322; Sebastian v. State
of Kera/a (2010) 1 SCC 58; Amit v. State of UP. (2012) 4
G SCC 107: 2012 (1) SCR 1009 - referred to.
Case Law Reference:
(1976) 4 sec 298 held inapplicable Para 16
(1976) 1 sec 425 held inapplicable Para 17
H
DEEPAK RAI v. STATE OF BIHAR 309
1981 (3) SCR 270 held inapplicable Para 18 A
1977 (3) SCR 636 held inapplicable Para 19
(2011) 13 sec 706 held inapplicable Para 19
2003 (2) Suppl. SCR 80 referred to Para 12 B
1999 (3) Suppl. SCR 52 relied on Para 24
2007 (4) SCR 876 relied on Para 25
(2000) 8 sec 262 relied on Para 26
c
1974 (3) SCR 329 relied on Para 31
1976 (2) SCR 274 referred to Para 32
1989 (2) SCR 498 relied on Para 33
(1980) 2 sec 684 followed Para 34 D
(1973) 2 SCR 541 referred to Para 35
(2011 > 1 sec 437 referred to Para 36
(2013) 2 ~cc ·452 referred to Par;;l 36 E
(2013) 2 sec 479 referred to Para 36
2008 (11) SCR 93 relied on Para 37
1991 (2) Suppl. SCR 103 followed Para 40
F
2012 (13) SCR 1049 relied on Para 41
1977 (3) SCR 636 relied on Para 44
1983 (3) SCR 413 relied on Para 47
G
2011 13 sec 106 relied on Para 49
2012 (3) SCR 630 relied on Para 50
2010 (11) SCR 927 referred to Para 54
2009 (6) SCR 829 referred to Para 55 H
310 SUPREME COURT REPORTS [2013) 14 S.C.R.
A 2009 (14) SCR 727 referred to Para 56
2008 (5) SCR 969 referred to Para 57
2007 (2) SCR 651 referred to Para 58
2005 (3) SCR 406 referred to Para 59
B
(2005) 6 sec 342 referred to Para 60
2005 (3) Suppl. SCR 651 referred to Para 61
2003 (2) Suppl. SCR 861 referred to Para 62
c 2002 (4) Suppl. SCR 623 referred to Para 63
(2003) 12 sec 199 referred to Para 65
2005 (1) Suppl. SCR 759 referred to Para 66
D (1988) 1 sec 633 referred to Para 67
2000 (2) Suppl. SCR 28 referred to Para 68
2000 (3) Suppl. SCR 104 referred to Para 69
1996 (6) Suppl. SCR 783 referred to Para 70
E
1995 (6) Suppl. SCR 195 referred to Para 71
2011 (6) SCR 1104 referred to Para 72
2010 (9) SCR 993 referred to Para 73
F 2011 (13) SCR 1000 referred to Para 74
(2001 > 2 sec 28 referred to Para 75
2009 (16) SCR 322 referred to Para 76
(201 O) 1 sec 58 referred to Para 77
G
2011 13 sec 106 referred to Para 78
2012 (1) SCR 1009 referred to Para 79
1999 (3) Suppl. SCR 52 referred to Para 80
H 1999 (3) Suppl. SCR 52 referred to Para 81
DEEPAK RAI v. STATE OF BIHAR 311
2003 (2) Suppl. SCR 80 relied on Para 85 A
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
Nos. 249-250 of 2011.
From the Judgment & Order dated 19.08.2010 of the High
Court of Judicature at Patna in Death Reference No.6 of 2009 B
and Criminal Appeal (DB) No. 989 of 2009.
WITH
Crl. A. Nos. 1747-1748 of 2011.
Dr. Sumant Bhardwaj, Ankita Chaudhary, K.K. Shukla,
c
Archana Pathak, Mriduka Ray Bharadwaj, Ramesh Chandra
Mishra (AC.), Dr. Meera Agarwal for the Appellant.
Nagendra Rai, Gopal Singh, Chandan Kumar, Smarhar
Singh for the Respondent. D
The Judgment of the Court was delivered by
H.L. DATTU, J. 1. These appeals are directed against
the judgment and order passed by the High Court of Judicature
at Patna in Death Reference No. 6 of 2009 and Criminal E
Appeal(DB) Nos. 989 of 2009 and 158 of 2010, dated
19.08.2010. By the impugned judgment and order, the 1-:ligh
Court has confirmed the judgment of conviction, dated
17.09.201 O and order of sentence, dated 30.1 o.2po9 passed
by the Additional Sessions Judge cum FTC No. 2, Vaishali at F
Hazipur in Sessions Trial No. 195 and 571 of 2006, wherepy
the learned Sessions Judge has convicted the three accused-
appellants for offence under Sections 120B, 148, 302 read with
149, 307 read with 149, 326, 429, 436 and 452 of Indian Penal
Code, 1860 (for short 'the IPC') and sentenced them to death. G
Facts:
2. The Prosecution case in a nutshell is: On the fateful night
of 01.01.2006, the deceased informant (PW-7) was sleeping
H
312 SUPREME COURT REPORTS [2013] 14 S.C.R.
A in the Varanda of his house and his wife alongwith the children,
two daughters aged 12 and 10 years, respectively and three
sons aged 8, 6 and 3 years, respectively were sleeping in the
mom inside the house. At around 01.00 A.M., he was
awakened by the sound of footsteps of several people. In the
B dlim light of a night bulb and further from their voices, he
identified the persons who had come near his house armed
with lethal weapons as appellant-accused persons and nine
other villagers besides 10-11 unknown persons. Before the
informant could escape, appellant-accused-Jagat Rai{A 1) and
C Deepak Rai{A2) caught hold of him and pushed him on the
!~round whereafter 3-4 unknown persons got over his body and
!~agged him. Then A1 instructed few others to surround the
lnouse from all sides and sprinkle kerosene over it, while the
other accused persons locked the door of the room where the
informant's wife was sleeping alongwith the children and set the
0
house on fire trapping them inside. Thereafter, they sprinkled
kerosene over the informant's body and held him to the ground
while A 1 set the informant's mouth on fire by lighting a
matchstick. Upon rising of a blazing flash of fire, the accused
persons fled away leaving the informant behind. While the
E informant also attempted to escape, A2· fired at him but the
informant managed an escape and raised alarm. On hearing
such noise, the informant's four brothers imd other family
members who resided in the adjoining houses woke up,
reached the spot and witnessed the accused persons running
F away while the informant was on fire. Until then the fire in
informant's house had reached its enormity, swallowing the
informant's family and injuring the buffalo and calf on the
property. The informant {PW-7) was rushed to the Primary
Health Centre, Raghopur.
G
3. The fardbayan was recorded at 7:30 AM, on the basis
of which an FIR was registered against the three appellant-
accused and few others for the offence under Sections 147,
148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the
H IPC at 9:00 AM on 01.01.2006. The motive of the occurrence
DEEPAK RAI v. STATE OF BIHAR 313
[H.L. DATTU, J.]
was alleged to be the informant's refusal even after consistent A
threats by A 1 to withdraw the FIR iodged by him for the theft of
informant's buffalo against A 1 and his family, in pursuance of
which two members of his family were arrested. Upon
investigation, the chargesheet was drawn against the aforesaid
accused persons on 21.03.2006. The learned Judicial s
Magistrate, First Ciass, Hazipur, Vaishali bifurcated the case
of the absconded accused persons-A 1, A2 and 8 others and
committed the case of Bacchababu Rai (A3) and 5 others for
trial as Sessions Trial No. 195 of 2006, by order dated
06.05.2006. Upon arrest of the accused persons-A 1, A2 and C
one other, their case was separated from other absconder-
accused persons and committed to trial as Sessions Trial No.
571 of 2006, by order dated 15.12.2006.
4. While in Sessions Trial No. 195 of 2006, 17 witnesses
were examined and 14 exhibits were produced, in Sessions D
Trial No.571 of 2006, 14 witnesses were examined and 11
exhibits were produced by the prosecution. Since both the
cases arose out of the same FIR, they were consolidated by
order dated 12.01.2008, whereafter their trial proceeded
together. While A2 examined 8, witnesses, other two accused E
persons- Binay Rai and Ranjay Rai examined five and three
witnesses, respectively in their defence.
5. Since the evidence of prosecution witnesses recorded
in the two trials corroborates the prosecution case in material
F
particulars, brevitatis causa and to avoid repetition we would
only n'otice them once. The informant (PW-7) has identified the
appellant-accused persons, supported the prosecution case in
his evidence and testified in respect of the time and manner
of occurrence of the fateful incident and the motive of the
accused persons. PWs 1, 2, 3 and 4 are the brothers of PW- G
7 who resided adjacent to PW-7's house. They have identified
the accused persons and further corroborated the prosecution
case in respect of time of occurrence and motive of the
appellant-accused persons. PW-1 has stated that as soon as
H
314 SUPREME COURT REPORTS [2013] 14 S.C.R.
A he heard PW-Ts shrieks and noise from the blazing fire, he
rushed outside his house and witnessed the accused persons
fleeing away. He found PW-7 on fire and immediately covered
him with a blanket to douse it; whereafter, he along with others
attempted to set the fire off at PW-Ts house but the fire having
B trctnsformed into a conflagration it was too late to save the six
deceased persons. PW-5 (wife of PW-2), PW-6 (mother of PW-
7), PW-14 (wife of PW-1), PW-15 (sister of PW-7) and PW-
1fj (wife of PW-4) have also supported the prosecution case
in respect of PW-1's account of the incident, i.e., the fleeing
c away of the three appellant-accused persons along with others
and the motive of the accused persons behind the incident.
PW-8, the Doctor who conducted post mortem examination of
the six deceased persons, has corroborated the prosecution
case that the death occurred by 100% burn injuries. PW-10,
D the Doctor who treated PW-7, has testified in respect of the
injuries suffered by PW-7. His evidence alongwith the post-
mortem report corroborate the time and manner of the fateful
incident. Further, PW-11 (the Investigating Officer) supported
the prosecution case with regard to the time and place of the
E C>ccurrence and the presence of charred dead bodies of the
six deceased persons. The Trial Court discarded the
testimonies of the defence witnesses at the outset and
proceeded with the trial.
6. Upon meticulous consideration of the evidence on
F record and the submissions made by the parties, the learned
Se~sions Judge has observed that even though the witnesses
examined by the prosecution are related to the victims, their
testimonies when considered with due care and caution are
corroborated by the evidence of informant (PW-7), the post
G mortem reports, evidence of the Doctors(PW-9 and 10) and the
evidence of PW-11, the Investigating Officer and therefore,
cannot be rejected on the prima facie ground of them being
interested witnesses. The Trial Court has believed the aforesaid
evidence corroborating the prosecution case in respect of A 1,
H A2 and A3; however, doubted the presence of other accused
DEEPAK RAI v. STATE OF BIHAR 315
[H.L. DATIU, J.)
persons since their names have neither been mentioned in the A
fardbayan nor has the evidence produced against them proved
their offence beyond reasonable doubt. In light of the aforesaid
observations, the Trial Court has reached the conclusion that
the three appellant-accused persons are guilty of the aforesaid
offence and has convicted them accordingly while ;acquitting the B
others, by judgment dated 17.09.2009. Further, after affording
an opportunity of hearing to the appellant-accused persons on
the question of sentence, the Trial Court has sentenced them
to death, by order dated 30.10.2009, relevant paragraphs of
which are reproduced as under: c
"Heard both sides on the question of sentence on behalf
of the held guilty accused Bachcha Babu Rai, Jagat Rai,
Bipat Rai alias Deepak Rai, it has been submitted that
before this, they have not been punished in any case of
them Bipat Rai @ Deepak is a retired military personnel. D
Keeping in mind, their age has also first conviction,
minimum of sentence may be inflicted.
On behalf of the prosecution it has been said that the
guilty held persons Bachcha Babu Rai, Jagat Rai, Bipat E
Rai@ Deepak ~ai have committed a heinous offence and
their offence falls under the category of RARE OF
RAREST. Their heinous crime has ruined the informant of
this case, his wife and five children. So far Bipat Rai is
concerned, he is a retired military personnel his conduct F
should be all the more decent. They are not of tender age
nor old. They do not deserve any mercy and they deserve
death sentence. In the light of the reasoning of both sides
as also on an appreciation, it is manifest, that the
occurrence is of night when the informant, his wife and five G
minor children and cattle all have been burnt to death. The
informant also subsequently died in this way, the entire
family is ruined. In the light of the guidelines as given by
Hon'ble Supreme Court, this case falls under the heading
of RARE OF RAREST cases. Because of this the guilty
H
3'16 SUPREME COURT REPORTS [2013] 14 S.C.R.
A held accused persons Bachcha Babu Rai, Jagat Rai and
Bipat Rai allias Deepak Rai are sentenced to death or
offence u/s 302/ 149 IPC .... "
7. Aggrieved by the aforesaid judgment and order, the
three appellant-accused persons filed appeals before the High
8
Court which were heard alongwith the Death Reference No. 6
of 2009 and disposed of by a common judgment and order,
dated 19.08.2010. The High Court has elaborately dealt with
the evidence on record and extensively discussed the judgment
and order of the Trial Court in order to ascertain the correctness
C e>r otherwise of the conviction and sentence awarded to the
appellant-accused persons. The High Court has observed that
since, the informant is the only witness who was present at the
scene of crime, his testimony alone could substantiate upon the
specific role of accused persons in the commission of the
D ghastly offence. In so far as the identification of the appellant-
1
accused persons, the High Court has observed that the
informant in the fardbeyan specifically mentions their names
and, infact, attributes specific roles to them in the commission
of the offence, i.e., A 1 commanding the house to be set on fire
E and lighting the matchstick to set the informant's mouth on fire
and later, when the informant was attempting to escape, A2
firing at the informant. Further, that during the commission of
the offence the accused persons were in close proximity to the
informant and the presence of dim light of bulb in the night and
F the illumination by flames of burning house coupled with them
being known to the informant establishes their identity in the
evidence of informant, which is supplemented and strengthened
by the evidence of PWs 1, 2, 3, 4, 5 and 6. The High Court
has further observed that the prosecution case in respect of the
G time and place of oc;;currence and the factum of accused
persons fleeing the spot of occurrence immediately after setting
the house on fire causing death of six persons by burning them
alive and injury to the informant has been well established by
cogent, reliable and unimpeachable eye-witnesses and further
H corroborated by the testimonies of the Doctors, post-mortem
DEEPAK RAI v. STATE OF BIHAR 317
[H.L. DATIU, J.]
report, medical report and the evidence of Investigating Officer. A
On the basis of the aforesaid, the High Court has concluded
towards the guilt of the accused appellants and sentenced them
as follows:
"... since the occurrence is ghastly murder of wife and five
8
children of the informant by closing in room for not
withdrawing the case of theft of buffalo shocked the entire
community bringing the case in the category of rare of
rarest to attract the maximum punishment and hence the
reference is answered in the affirmative and I do not find
any merit in the two appeals and hence the appeals are C
dismissed ..... ."
8. Aggrieved by the aforesaid conviction and sentence, the
appellants are before us in these appeals. The appeals before
us are limited to the question of sentence. D
Submissions:
9. We have heard Dr. Sumant Bharadwaj learned counsel
appearing for A2, Shri Ramesh Chandra Mishra, learned
counsel appearing for A 1 and A3 and Shri Nagendra Rai, E
learned senior counsel appearing for the respondent-State.
10. Dr. Bharadwaj would submit that the Courts below have
erred in sentencing A2 as the reasons recorded by the Courts
below do not conform to the statutory mandate prescribed under F
Section 354(3) of the Code of Criminal Procedure, 1973 (for
short 'the Code'), which require the judgment to record
"reasons" in case of sentence of life imprisonment and "special
reasons" in case of death sentence. He would submit that the
since no extraordinary reasons have been assigned by the G
Courts below to sentence the appellant to death instead of a
less harsher sentence and that this Court in appellate
jurisdiction ·cannot go into the same for the first time while
confirming the death sentence, the matter requires to be
remanded to the Trial Court for fresh consideration on the H
318 SUPREME COURT REPORTS [2013] 14 S.C.R.
A question of sentence as per Section 354(3) of the Code.
Further, he would place reliance upon the judgments of this
Court in Ambaram v. State of M.P., (1976) 4 SCC 298, Ba/want
Singh v. State of Punjab, (1976) 1 SCC 425, Dagdu v. State
of Maharashtra, (1977) 3 SCC 68, Muniappan v. State of TN.,
B (1981) 3 SCC 11 and Rajesh Kumar v. State, (2011) 13 SCC
~ms; wherein this Court has held that "special reasons" are
essential for awarding death sentence under Section 354(3) of
the Code and in absence of such reasons has commuted the
sentence passed by the Courts below from death to life
c imprisonment and submit that since, in the instant case, no
"special reasons" were recorded by the Courts below while
sentencing the appellants, the sentence of the appellants ought
to be commuted to life imprisonment.
11. Shri Mishra would assail the sentence awarded by the
D Trial Court and confirmed by the High Court and submit that in
the instant case mitigating circumstances overwhelmingly
outweigh the aggravating circumstances and therefore, ends of
justice would only be achieved by commuting the sentence of
the two appellant-accused persons, A 1 and A3, from death to
E impri~onment for life. He would put forth the follpwing factors in
support of his submission:
"Mitigating Circumstances:
1. Appellants are not hard core criminals,
F
2. They are not threat/ menace to the Society,
3. They have no criminal antecedent/ background,
4. They are not antisocial elements,
G
5. Their conduct in Jail has been satisfactory,
6. The State has failed to prove that they are incapable
of being reformed
H
DEEPAK RAI v. STATE OF BIHAR 319
[H.L. DATTU, J.]
7. They have been in Jail for about seven years, A
8. Delay of seven years in execution of death sentence
confirmed in death anticipating imminent death any
moment,
9. Death sentence is exception and life-imprisonment 8
is rule,
10. Global move to abolish death sentence. 138 nations
have abolished death sentence while 59 countries
including India have retained death sentence. c
(2009) 6 SCC 498. Relevant page- 544, paras
111-112,
11. Jagat Rai at the time of commission of offence was
48 years while Bachcha Babu Rai was 43 years,
D
comparatively young,
12. Offence was committed when the appellant were
under the influence of extreme of mental
disturbance due to pendency of criminal case,
E
13. There is every probability'that the appellants can be
reformed and rehabilitated,
14. All the four main objectives which state intends to
achieve namely deterrence, prevention, retribution
and reformation can be achieved by keeping the F
appellants alive.
Aggravating Circumstances:
1. It was a planned, cold-blooded brutal murder,
G
2. Entire family was wiped out. .. ."
12. A contrario Shri Rai would support the judgment and
order passed by the Courts below convicting the appellants of
the aforesaid offence and sentencing them to death. He would H
320 SUPREME COURT REPORTS (2013] 14 S.C.R.
A submit that the reasons recorded by the Courts below fall within
the statutory requirements under Section 354(3) of the Code
as well as the parameters laid down by this Court for recording
"special reasons" while sentencing a convict to death. He would
distinguish the cases cited by Shri Bharadwaj as cases
B wherein the sentence of the accused persons was commuted
due to reasons besides absence of "special reasons" for
s1entencing the accused therein in the judgments and orders of
the. Courts below and further place reliance upon the decision
. of this Court in Gurdev Singh v. State of Punjab, (2003) 7
c sec 258 amongst others, wherein this Court has sentenced
the accused persons therein who were responsible for causing
the death of fifteen persons, besides causing grievous injuries
to eight others to death after balancing the aggravating and
mitigating circumstances.
D 13. We have given our anxious consideration to the
materials on record in its entirety, the submissions made by
the learned counsel for the parties and the judgments and
orders of the Courts below.
E Issues for consideration:
14. The questions which fall for our consideration and
decision are first, whether the reasons assigned by the Courts
below while sentencing the appellants are "special reasons"
under Section 354(3) of the Code and second, whether the
F offence committed by the appellants fall into the category of
"rarest of the rare" cases so as to warrant death sentence.
Cases cited by Shri Bharadwaj:
G 15. At the outset we would examine the decisions relied
upon by Dr. Bharadwaj and examine whether at all should the
sentence in the present case, for lack of special reasons being
assigned by the Trial Courts as well as the High Courts, ought
to be commuted to imprisonment for life.
H 16. In Ambaram case (supra), the appellant-accused was
DEEPAK RAI v. STATE OF BIHAR 321
[H.L. DATTU, J.]
tried along with four others for murder of two persons. It wa.s A
the appellant therein who shot one while his companions
assaulted the other to death with sharp-edged weapons and a
lathi. He was convicted under Section 302 of the IPC by the
Trial Court and sentenced to death alone by the Trial Court as
well as the High Court against which he had approached this B
Court by filing a special leave petition. It is pertinent to note that
his appeal was limited to the question of sentence. This Court
has noticed the change in the law introduced under Section
354(3) of the Code in 1973 which confers discretion on the
Courts to inflict the death sentence or the sentence of life c
imprisonment each according to the circumstances and
exigencies of each case but enjoins duty upon them to justify it
by giving special reasons and reasons, respectively. This Court
has observed as follows:
"1 .... The High Court has not given any special reasons D
why Ambaram has been singled out for the award of the
extreme penalty. Nor do we find any such reason to treat ·
him differently in the matter of sentence from his
companions who have been awarded the lesser penalty.
On this short groun.d we allow this appeal and commute E
Ambaram's death sentence to that of imprisonment for
life." (emphasis supplied)
17. In Ba/want Singh v. State of Punjab, (1976) 1 SCC
425 this Court has observed as follows: F
"4 .... On the facts of this case, it is true that the appellant
had a motive to commit the murder and he did it with an
intention to kill the deceased. His conviction under
Section 302 of the Penal Code was justified but the facts
found were not such as to enable the Court to say that G
there were special reasons for passing the sentence of
death in this case."
(emphasis supplied)
H
322 SUPREME COURT REPORTS [2013] 14 S.C.R.
A Thereafter, this Court has observed the error committed
by the High Court in applying the principle of extenuating
circumstances under the older Code even after the present
Code coming into force in 1973 which requires the Court to
assign special reasons while awarding death penalty and
B observed the follows:
"5. The High Court has referred to the two decisions of this
Court namely in Mangal Singh v. State of U.P., (1975) 3
SCC 290 and in Perumal v. State of Kera/a, (1975) 4
c sec 109 and has then said:
"There are no extenuating circumstances in this
case and the death sentence awarded to Balwant
Singh appellant by the Sessions Judge is
confirmed ... ."
D
As we have said above, even after noticing the provisions
of Section 354(3) of the new Criminal Procedure Code the
High Court committed an error in relying upon the two
decisions of this Court in which the trials were held under
E the old Code. It wrongly relied upon the principle of
absence of extenuating circumstances- a principle which
was applicable after the amendment of the old Code from
January 1, 1956 until the coming into force of the new
Code from April 1, 1974. In our judgment there is no
special reason nor any has been recorded by the High
F
Court for confirming the death sentence in this case. We
accordingly allow the appeal on the question of sentence
and commute the death sentence imposed upon the
appellant to one for imprisonment for life."
G (emphasis supplied)
18. In Muniappan v. State ofT.N., (1981) 3 SCC 11, this
Court has observed that not only has the Trial Court failed to
provide adequate hearing to the accused under Section 235(2),
H but also it as well as the High Court have not assigned
DEEPAK RAI v. STATE OF BIHAR 323
[H.L. DATTU; J.]
appropriate reasons while awarding and confirming the A
sentence of the accused, respectively and thus, reached the
conclusion that the sentence of death could not be imposed.
19. Further, in Dagdu case (supra) and Rajesh Kumar
case (supra) this Court has considered the facts and 8
circumstances of the case in its entirety while balancing the
aggravating and mitigating circumstances to decide upon the
adequacy of sentence awarded by the Courts below and upon
reaching such satisfaction that the case did not fall into the
. category of "rarest of the rare" warranting "special reasons" for C
the award of death sentence has commuted the sentence of
the accused.
20. Thus in the aforementioned cases, this Court has upon
examination of both-the evidence on record and the reasoning
of the Courts below while sentencing the accused reached an D
independent conclusion that the facts and circumstances of the
case do not warrant imposition of sentence of death. Therefore,
it is not the absence or adequacy of "special reasons" alone
what weighed in the mind of this Court while commuting the
sentence. The facts in toto and procedural impropriety, if any E
loomed large in exercising such discretion. Hence, the reliance
placed on the aforementioned decisions is rejected.
Scope of Article 136 vis-a-vis examination of "special
reasons"
F
21. Further, we are unable to accept the submission that
in any case the failure on the part of the Court, which has
convicted an accused and heard him on the question of
sentence but failed to express the "special reasons" in so many
words, must necessarily entail a remand to that Court for G
elaboration upon its conclusion in awarding the death sentence
for the reason that while exercising appellate jurisdiction this
Court cannot delve into such reasons.
22. Since the appellants are before us by way of an appeal H
324 SUPREME COURT REPORTS [2013] 14 S.C.R.
A by special leave, we would first examine the scope of
jurisdiction of this Court under Article 136 of the Constitution
of India vis-a-vis criminal appeals.
23. The appellate jurisdiction vested in this Court by virtue
of Article 136 is not plain statutory but expansive and
8
extraordinary. The Court exercises its discretion and grants
IE~ave to appeal in cases where it is satisfied that the same
would circumvent a grave miscarriage of justice. Such
jurisdiction is not fettered by rules of criminal procedure but
C ~1uided by judicially evolved principles.
24. We are fortified by the decision of this Court in State
of U.P. v. Dharmendra Singh, (1999) 8 SCC 325, where while
1examining the applicability of Section 377(3) of the Code to
an appeal under Article 136 has observed as follows:
D
"10 .... A perusal of this section shows that this provision
is applicable only when the matter is before the High Court
and the same is not applicable to this Court when an
appeal for enhancement of sentence is made under Article
136 of the Constitution. It is to be noted that an appeal to
E
this Court in criminal matters is not provided tinder the
Code except in cases covered by Section 379 of the
Code. An appeal to this Court under Article 136 of the
Constitution is not the same as a statutory appeal under
the Code. This Court under Article 136 of the Constitution
F is not a regular court of appeal which an accused can
approach as of right: It is an extraordinary jurisdiction
which is exercisable only in exceptional cases when this
Court is satisfied that it should interfere to prevent a grave
or serious miscarriage of justice, as distinguished from
G mere error in appreciation of evidence. While exercising
this jurisdiction, this Court is not bound by the rules of
procedure as applicable to the courts below. This Court's
jurisdiction under Article 136 of the Constitution is limited
only by its own discretion (see Nihal Singh v. State of
H Punjab, AIR 1965 SC 26. In that view of the matter, we are
DEEPAK RAI v. STATE OF BIHAR 325
[H.L. DATIU, J.]
of the opinion that Section 377(3) of the Code in terms A
does not apply to an appeal under Article 136 of the
Constitution.
11. This does not mean that this Court will be unmindful of
the principles analogous to those found in the Code 8
including those under Section 377(3) of the Code while
moulding a procedure for the disposal of an appeal under
Article 136 of the Constitution. Apart from the Supreme
Court Rules applicable for the disposal of the criminal
appeals in this Court, the Court also adopts such C
analogous principles found in the Code so as to make the
procedure a "fair procedure" depending on the facts and
circumstances of the case."
(emphasis supplied)
D
25. More so, it is settled law that an appeal by special leave
under Article 136 is a continuation of the original proceedings.
In Moran M. Baselios Marthbma Mathews II v. State of Kera/a,
(2007) 6 SCC 517, this Court categorically observed as
follows: E
"13. We, therefore, are of the opinion that despite the fact
that the appellants had insisted upon before the High Court
for issuance of a writ or in the nature of mandamus upon
the State or its officers for the purpose of grant of police
protection as this Court has exercised its appellate F
jurisdiction under Article 136 of the Constitution of India, it
can and should go into that question as well viz. as to
whether the writ petition itself could have been entertained
or not, particularly, when the appeal is a continuation of
the original proceedings." G
26. Further, this Court in Netai Bag v. State of W.B.,
(2000) 8 SCC 262 while observing that the scope of an appeal
under Articles 136 and 226 cannot be wider than the earlier
proceedings, has noticed that the appeals under said
H
326 SUPREME COURT REPORTS [2013] 14 S.C.R.
A provisions are continuation of the original proceedings.
27. Thus, jurisdiction of this Court in appeal under Article
136 though circumscribed to the scope of earlier proceedings
is neither fettered by the rules of criminal procedure nor limited
8 to mere confirmation or rejection of the appeal. This Court while
considering the question of correctness or otherwise of the
sentence awarded by the Courts below has exercised
discretionary jurisdiction under Article 136 and hence can not
only examine the reasons so assigned under Section 354(3)
C but also substantiate upon the same, if need so be.
28. With the aforesaid in view, let us now examine the
isi;ues before us.
Issue one: "Special reasons" under Section 354(3) of the
o Code
29. Under Section 367(5) of the Code of Criminal
Procedure, 1898 (for short "old Code"), the normal sentence
te> be awarded to a person found guilty of murder was death
a1nd imprisonment for life was an exception. The Amending Act
E 26 of 1955 amended Section 367(5) of the old Code resulting
in vesting of discretion with the Court to inflict the sentence of
life imprisonment or death each according to the circumstances
and exigencies of the case. The amended Section 367(5) of
the old Code reads as follows:
F
"367. (5) If the accused is convicted of an offence
punishable with death, and the court sentences him to any
punishment other than death, the court shall in its judgment
state the reason why sentence of death was not passed."
G
30. The present Code which was legislated in 1973
brought a shift in the then existing penological trend by making
imprisonment for life a rule and death sentence an exception.
It makes it mandatory for the Court in cases of conviction for
an offence punishable with imprisonment for life to assign
H
DEEPAK RAI v. STATE OF BIHAR 327
[H.L. DATTU, J.]
reasons in support of the sentence awarded to the convict and A
further ordains that in case the Court awards the death penalty,
"special reasons" for such sentence shall be stated in the
judgment. It reads as follows :
"When the conviction is for an offence punishable with
8
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such
sentence."
c
31. For the first time, this shift in sentencing policy has been
observed by Krishna Iyer J. (as he then was) in Ediga
Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, as
follows:
D
"18. It cannot be emphasised too often that crime and
punishment are functionally related to the society in which
they occur, and Indian conditions and stages of progress
must dominate the exercise of judicial discretion in this
case.
E
21. It is obvious that the disturbed conscience of the State
on the vexed question of legal threat to life by way of death
sentence has sought to express itself legislatively, the F
stream of tendency being towards cautious, partial
'abolition and a retreat from total retention."
(Also Ambaram case (supra), Joseph v. State of Goa,
(1977) 3 SCC 280, Triveniben v. State of Gujarat)
G
32. Further, this Court in Hamam v. State of UP., (1976)
1 sec 163 supplemented the aforesaid observations and
noted as follows:
"4 .... The seminal trends in current sociological thinking H
328 SUPREME COURT REPORTS [2013] 14 S.C.R.
A and penal strategy, tampered as they are by humanistic
attitude and deep concern for the worth of the human
person, frown upon death penalty and regard it as cruel
& savage punishment to be inflicted only in exceptional
cases. It is against this background of legislative thinking
8 which reflects the social mood and realities and the
direction of the penal and procedural laws that we have
to consider whether the tender age of an accused is a fetor
contra-indicative of death penalty."
33. In Allauddin Mian v. State of Bihar, (1989) 3 SCC 5
C this Court has examined the purpose of inclusion of "special
reasons" clause as follows:
"9 .... When the law casts a duty on the judge to state
reasons it follows that he is under a legal obligation to
explain his choice of the sentence. It may seem trite to say
D
so, but the existence of the "special reasons clause" in the
above provision implies that the court can in fit cases
impose the extreme penalty of death which negatives the
contention that there never can be a valid reason to visit
an offender witti the death penalty, no matter how cruel,
E
gruesome or shocking the crime may be ... While rejecting
the demand of the protagonist of the reformatory theory
for the abolition of the death penalty the legislature in its
wisdom thought that the "special reasons clause" should
be a sufficient safeguard against arbitrary imposition of
F the extreme penalty. Where a sentence of severity is
imposed, it is imperative that the judge should indicate
the basis upon which he considers a sentence of that
magnitude justified. Unless there are special reasons,
special to the facts of the particular case, which can be
catalogued as justifying a severe punishment the judge
would not award the death sentence. It may be stated that
if a judge finds that he is unable to explain with
reasonable accuracy the basis for selecting the higher
of the two sentences his choice should fall on the lower
H sentence. In all such cases the law casts an obligation
DEEPAK RAI v. STATE OF BIHAR 329
[H.L. DATTU, J.]
on the judge to make his choice after carefully A
examining the pros and cons of each case. It must at once
be conceded that offenders of some particularly grossly
brutal crimes which send tremors in the community have
to be firmly dealt with to protect the community from the
perpetrators of such crimes. Where the incidence of a s
certain crime is rapidly growing and is assuming menacing
proportiohs-, for example, acid pouring or bride burning, it
may be necessary for the courts to award exemplary
punishments to protect the community and to deter others
from committing such crimes. Since the legislature in its c
wisdom thought that in some rare cases it may still be
necessary to impose the extreme punishment of death
to deter others and to protect the society and in a given
case the country, it left the choice of sentence to the
judiciary with the rider that the judge may visit the convict
0
with the extreme punishment provided there exist special
reasons for so doing. . .. "
34. In Bachan Singh case (supra), while determining the
constitutional validity of the death penalty, this Court has
examined the ,sentencing procedure embodied i.n E
Section 354(3) of the Code. Following issue was framed by
this Court in the aforesaid context:
"15. (i) ... (ii) ... whether the sentencing procedure provided
in Section 354(3) of the Code of Criminal Procedure, F
1973 (2 of 1974) is unconstitutional on the ground that it
invests the court with unguided and untrammelled
discretion and allows death sentence to be arbitrarily or
freakishly imposed on a person found guilty of murder or
any other capital offence punishable under the Penal Code G
with death or, in the alternative, with imprisonment for life."
35. To answer the said issue, this Court referred to and
considered Jagmohan Singh v. State of UP. (which was
decided under the oid Code} and culled out several
H
3~10 SUPREME COURT REPORTS [2013] 14 S,C.R.
A propositions from that decision. Keeping in view of the changed
legislative policy, this Court agreed with all the observations in
Jagmohan Singh case (supra) but for two- first, that the
discretion in the matter of sentencing is to be exercised by the
~ludge after balancing all the aggravating and mitigating
B f:ircumstances of the crime and second, that while choosing
between the two alternative sentences provided in Section 302
of the IPC, i.e., sentence of death and life imprisonment, the
court is principally concerned with the aggravating or mitigating
circumstances connected with the particular crime under inguirv.
c This Court observed that whilst under the old Code, both the
sentence of death was the rule and life imprisonment was an
exception, Section 354(3) of the Code has reversed the
sentencing policy with the legislative mandate that if a sentence
of death is to be awarded, special reasons need to be
recorded by the Courts. That is to say, the legislative policy now
0
virtually obviated the necessity of balancing the aggravating and
mitigating circumstances for the award of punishment in respect
of an offence of murder. The Court observed as follows in
context of departures from Jagmohan Singh case (supra):
E "164. (a) Th!a normal rule is that the offence of murder ~hall
be punished with the sentence of life imprisonment. The
courl can deparl from that rule and impose the sentence
of death only if there are special reasons for doing so.
Such reasons must be recorded in writing before
F imposing the death sentence.
(b) While considering the 'question of sentence to be
imposed for the offence of murder under Section 302 of
the Penal Code, the courl must have regard to every
relevant circumstance relating to the crime as well as the
G
criminal. If the court finds, but not otherwise, that the
offence is of an exceptionally depraved and heinous
character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the
society at large, the court may impose the death
H sentence."
DEEPAK RAI v. STATE OF BIHAR 331
[H.L. DATTU, J.]
36. In the aforesaid background this Court observed that A
special reasons, in the context of the said provision, obviously
mean "exceptional reasons" founded on the exceptionally grave
circumstances relating to the crime as well as the criminal. It
being extremely difficult to catalogue such special reasons, they
have to be construed in the facts of the case and relative weight B
has to be given to mitigating and aggravating factors. This Court
observed that these two aspects are so intertwined that isolation
of one from the other would defeat the mandate of law and held
with hope that in view of the "broad illustrative guidelines" laid
down therein, the Courts: c
"209 .... will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the
highroad of legislative policy outlined in Section 354(3) viz.
that for persons convicted of murder, life imprisonment is
the rule and death sentence an exception." D
(Also: State of Maharashtra v. Goraksha Ambaji Adsul,
(2011) 7 SCC 437; Sangeet v. State of Haryana, (2013)
2 SCC 452; Sandesh v. State of Maharashtra, (2013) 2
sec 479) E
37. In Swamy Shraddananda (2) v. State of Karnataka,
(2008) 13 SCC 767 this Court opined that the term "special
reasons" as explained in the Bachan Singh case (supra)
indicates a relative category based on comparison with other
cases under Section 302 as under: F
"44. The matter can be looked at from another angle. In
Bachan Singh it was held that the expression "special
reasons" in the context of the provision of Section 354(3)
obviously means "exceptional reasons" founded on the G
exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal. It was further
said that on conviction for murder and other capital
offences punishable in the alternative with death under the
Penal Code. the extreme penalty should be imposed only H
33;~ SUPREME COURT REPORTS [2013) 14 S.C.R. •
A in extreme cases. In conclusion it was said that the death
penalty ought not to be imposed save in the rarest of rare
cases when the alternative option is unquestionably
foreclosed. Now, all these expressions "special reasons",
"exceptional reasons", "founded on the exceptional grave
B circumstances''. "extreme cases" and "the rarest of rare
cases" unquestionably indicate a relative category based
on comparison with other cases of murder. Machhi Singh,
for the purpose of practical application sought to translate
this relative category into absolute terms by framing the
c five categories. (In doing so, it is held, by some, Machhi
Singh considerably enlarged the scope for imposing death
penalty that was greatly restricted by Bachan Singh)."
38. The said five categories of rarest of the rare crimes
delineated in Macchi Singh case (supra) are as follows:
D
"I. Manner of commission of murder
33. When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so
as to arouse intense and extreme indignation of the
E
community. For instance,
(i) when the house of the victim is set aflame with the end
in view to roast him alive in the house.
F (ii) when the victim is subjected to inhuman acts of torture
or cruelty in order to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his
body is dismembered in a fiendish manne~.
G II. Motive for commission of murder
34. When the murder is committed for a motive which
evinces total depravity and meanness. For instance when
(a) a hired assassin commits murder for the sake of money
H or reward (b) a cold-blooded murder is committed with a
DEEPAK RAI v. STATE OF BIHAR 333
[H.L. DATTU, J.]
deliberate design in order to inherit property or to gain A
control over property of a ward or a person under the
control of the murderer or vis-a-vis whom the murderer is
in a dominating position or in a position of trust, or (c) a
murder is committed in the cGurse of betrayal of the
motherland. B
Ill. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste
or minority community, etc. is committed not for personal
reasons but in circumstances which arouse social wrath. C
For instance when such a crime is committed in order to
terrorise such persons and frighten them into fleeing from
a place or in order to deprive them of, or make them
surrender, lands or benefits conferred on them with a view
to reverse past injustices and in order to restore the social D
balance.
(b) In cases of 'bride burning' and what are known as
'dowry deaths' or when murder is committed in order to
remarry for the sake of extracting dowry once again or to E
marry another woman on accou·nt of infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion. For
instance when multiple murders say of all or almost all the F
members of a family or a large number of persons of a
particular caste, community, or locality, are com'mitted.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child G
who could not have or has not provided even an excuse,
much less a provocation, for murder (b) a helpless
woman or a person rendered helpless by old age or
infirmity (c) when the victim is a person vis-a-vis whom the
· murderer is in a position of domination or trust (d) when H
334 SUPREME COURT REPORTS [2013] 14 S.C.R.
A the victim is a public figure generally loved and respected
by the community for the services rendered by him and the
murder is committed for political or similar reasons other
than personal reasons."
(emphasis supplied)
B
39. This Court has cautioned that though the aforesaid are
extremely important factors could not be taken as inflexible,
absolute or immutable, they must be perceived only as
indicators which the Courts must bear in mind while deciding
C upon the sentence and assigning special reasons, if required.
40. The Constitutional Bench of this Court in Shashi Nayar
v. Union, (1992) 1 SCC 96 has observed that the "special
reasons clause" means reasons, specific to the fact of a
0 particular case, which can be catalogued as justifying a severe
punishment and unless, such reasons are not recorded death
sentence must not be awarded. Under this provision, if the basis
for awarding the higher sentence can be explained with
reasonable accuracy, after examining the pros and cons of
E sentencing options achieving proportional balance with the
severity of the crime committed only then should the higher
punishment be awarded. This Court has noted that thus, Section
345(3) is a sufficient safeguard against the arbitrary imposition
of the extreme penalty and unless the nature of crime and the
circumstances of the offender reveal that the sentence to life
F imprisonment would be wholly inadequate, the Courts should
ordinarily impose a lesser punishment.
41. This Court in Sandesh v. State of Maharashtra, (2013)
2 sec 479 has discussed the aforesaid principles and
G observed as follows:
"21 ...... it is not only the crime and its various facets which
are the foundation for formation of special reasons as
contemplated under Section 354(3) CrPC for imposing
death penalty but it is also the criminal, his background,
H
DEEPAK RAI v. STATE OF BIHAR 335
[H.L. DATIU, J.]
the manner in which the crime was committed and his A
mental condition at the relevant time, the motive of the
offence and brutality with which the crime was committed
are also to be examined. The doctrine of rehabilitation and
doctrine of prudence are the other two guiding principles
for proper exercise of judicial discretion." B
42. The aforesaid would reflect that under this provision
the legislature casts a statutory duty on the Court to state
reasons for choice of the sterner sentence to be awarded in
exceptional cases as against the rule of life imprisonment and C
by necessary implication, a legal obligation to explain them as
distinguished from the expression "reasons" follows. The
legislative mandate of assigning "special reasons" assures that
the imposition of the capital punishment is well considered by
the Court and that only upon categorization of the case as "rarest
of rare", thus leaving no room for imposition of a less harsh D
sentence, should the Court sentence the accused person to
death.
43. Incontrovertibly, the judicial approach towards
sentencing has to be cautious, circumspect and careful. The E
Courts at all stages- tria'I and appellate must therefore peruse
and analyze the facts of the case in hand and reach an
independent conclusion which must be appropriately and
cogently justified in the "reasons" or "special reasons" recorded
by them for imposition of life imprisonment or death penalty. F
The length of the discussion would not be a touchstone for
determining correctness of a decision. The test would be that
reasons must be lucid and satisfy the appellate Court that the
Court below has considered the case in toto and thereafter,
upon balancing all the mitigating and aggravating factors, G
recorded the sentence.
44. We must now briefly advert to the sentencing procedure
prescribed by law. Under Section 235(2) of the Code, the Court
on convicting an accused must unquestionably afford an
opportunity to the accused to present his case on the question H
3316 SUPREME COURT REPORTS [2013) 14 S.C.R.
A of sentence and under Section 354(3) record the extraordinary
circumstances which warrant imposition of death sentence
ke1eping in view the entire facts of the case and the
submissions of the accused. In doing so if, for any reason, it
omits to do so or does not assign elaborate reasons and the
B accused makes a grievance of it before the higher court, it
would be open to that Court to remedy the same by elaborating
upon the said reasons. Even when the reasons recorded by the
Courts below do not conform to the statutory mandate or the
judicially evolved principles, this Court, should reach the
c conclusion that harsher sentence of death requires to be
imposed, could supplement them so as to justify the imposition
of such sentence instead of remanding the matter to Courts
below for re-consideration on the question of sentence. Further,
should this Court opine to the contrary that the facts and
c:ircumstances of the case do not require imposition of capital
0
punishment and the ends of justice would be achieved by a less
harsh sentence, it could accordingly commute the sentence
awarded by the Courts below. This Court in Dagdu case
(supra) has observed that remand is an exception, not the rule,
and therefore ought to be avoided as far as possible in the
E interests of expeditious, though fair, disposal of cases.
45. Herein, it is not the case of the appellants that the
opportunity to be heard on the question of sentence separately
as provisioned for under Section 235(2) of the Code was not
F provided by the Courts below. Further, the Trial Court has
recorded and discussed the subrf1issions made by the
appellants and the prosecution on the said question and
thereafter, rejected the possibility of awarding a punishment
less harsh than the death penalty. However, the High Court while
G confirming the sentence has recorded reasons though
encapsulated. The High Court has noticed the motive of the
appellants being non withdrawal of the case by the informant
and the ghastly manner of commission of crime whereby six
innocent persons as young as 3 year old were charred to death
H and concluded that the incident shocks the conscience of the
DEEPAK RAI v. STATE OF BIHAR 337
[H.L. DATTU, J.]
entire society and thus deserves nothing lesser but death A
penalty.
46. There being no impropriety by the Courts below in
compliance with the procedure prescribed under law for
sentencing the appellants, only the question of adequacy and 8
correctness of the special reasons assigned for awarding
sentence of death requires to be considered by us. In our
cons~dered opinion, as noticed above, it is only upon
examination of the facts and circumstances of the case could
the adequacy of the special reasons recorded by the Courts C
below be determined by us. Therefore, we would now consider
the second issue to determine whether at all the case falls in
the category of rarest of the rare offences.
Issue two: Does this case fall into the category of rarest
of the rare cases? D
47. We are mindful of the principles laid down by this Court
in Bachan Singh v. State, (·1980) 2 SCC 684 and affirmed in
Macchi Singh v. State of Punjab, (1983) 3 SCC 470 to be
observed on the sentencing policy in determining the rarest of E
the rare crimes. In Bachan Singh case (supra) this Court has
held as follows:
"While considering the question of sentence to be
imposed for the offence of murder u/s 302 of the Penal
Code, the court must have regard to every relevant F
circumstance relating to the crime as well as the criminal.
If the court finds, but not otherwise, that the offence is of
an exceptionally depraved and heinous character and
constitutes, on account of its design and the manner' of its
execution, a source of grave danger to the society at large, - G
the court may impose the death sentence."
48. In Machhi Singh case (supra), this Court has awarded
death sentence to the accused who had methodically in a
preplanned manner murdered seventeen persons of a village
H
338 SUPREME COURT REPORTS [2013] 14 S.C.R.
A including men, women and children. Therein, this Court has
besides outlining the five broad categories of rarest of rare
cases held that in order to apply the guidelines of Bachan
Singh case (supra) the following questions ought to be
answered:
B
"39. "(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is
c no alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender?"
This Court has held that if the answer to the above is in
D affirmative, then death sentence is warranted. This Court has
further observed that the motivation of the perpetrator, the
vulnerability of the victim, the enormity of the crime, the execution
thereof are few of the many factors which normally weigh in the
mind of the Court while awarding death sentence in a case
E terming it as the "rarest of the rare" cases. While applying the
test of rarest of the rare case, the Court has to look into variety
of factors like society's abhorrence, extreme indignation and
antipathy to certain types of crimes which shake the collective
conscience of the society.
F 49. This Court in Rajesh Kumar v. State, (2011) 13 SCC
706 has noticed the observations and principles evolved in
Bachan Singh case (supra) resonating through the international
sentiments on death penalty, as follows:
G "83. The ratio in Bachan Singh has received approval by
the international legal community and has been very
favourably referred to by David Pannick in Judicial Review
of the Death Penalty: Duckworth (see pp. 104-05). Ro~er
Hood and Carolyn Hoyle in their treatise on The Death
Penalty, 4th Edn. (Oxford) have also very much
H
DEEPAK RAI v. STATE OF BIHAR 339
[H.L. DATTU, J.]
appreciated the Bachan Singh ratio (see p. 285). The A
concept of "rarest of rare" which has been evolved in
Bachan Singh by this Court is also the internationally
accepted standard in cases of death penalty.
84. Reference in this connection may also be made to the
8
right based approach in exercising discretion in death
penalty as suggested by Edward Fitzgerald, the British
Barrister. [Edward Fitzgerald: The Mitigating Exercise in
Capital Cases in Death Penalty Conference (3-5 June).
Barbados: Conference Papers and Recommendations.] It C
has been suggested therein that right approach towards
exercising discretion in capital cases is to start from a
strong presumption against the death penalty. It is argued
that "the presence of any significant mitigating factor
justifies exemption from the death penalty even in the most
gruesome cases" and Fitzgerald argues: D
"Such a restrictive approach can be summarised as
follows: The normal sentence should be life imprisonment.
The death sentence should only be imposed instead of the
life sentence in the 'rarest.of rare' cases where the crime E
or crimes are of exceptional heinousness and the individual
has no significant mitigation and is considered beyond
reformation."
(Quoted in The Death Penalty, Roger Hood and Hoyle, 4th F
Edn., Oxford, p. 285.),
85. Opposing mandatory death sentence. the United
Nations in its interim report to the General Assembly in
2000 advanced the following opinion:
G
'The proper application of human rights law-especially of
its provision that 'no one shall be arbitrarily deprived of his
life' and that 'no one shall be subjected to ... cruel, inhuman
or degrading ... punishment'-requires weighing factors
that wili not be taken into account in the process of H
2:40 SUPREME COURT REPORTS (2013] 14 S.C.R.
A determining whether a defendant is guilty of committing a
'most serious crime'. As a result, these factors can only
be taken into account in the context of individualised
sentencing by the judiciary in death penalty cases .... The
conclusion, in theory as well as in practice, was that
B respect for human rights can be reliably ensured in death
penalty cases only if the judiciary engages in case-specific,
individualised sentencing that accounts for all of the
relevant factors .... It is clear, therefore, that in death penalty
cases, individualised sentencing by the judiciary is
c required to prevent cruel, inhuman or degrading
punishment and the arbitrary deprivation of life."
(The Death Penalty, Roger Hood and Hoyle, 4th Edn.,
Oxford, p. 281.)
D 50. In Ramnaresh v. State ofChhattisgarh, (2012) 4 SCC
257, this Court has reflected upon the aforesaid decisions and
culled out the principles as follows:
"76. The aforesaid judgments, primarily dissect these
principles into two different compartments-one being the
"aggravating circumstances" whjle the other being the
"mitigating circumstances". The court would consider the
cumulative effect of both these aspects and normally, it
may not be very appropriate for the court to decide the
most significant aspect of sentencing policy with reference
F to one of the classes under any of the following heads while
complet~ly ignoring other classes under other he~ds. To
balance the two is the primary duty of the court. It will be
appropriate for the court to come to a final conclusion upon
balancing the exercise that would help to administer the
G criminal justice system better and provide an effective and
meaningful reasoning by the court as contemplated under
Section 354(3) CrPC.
t.ggravating circumstances
(1) The offences relating to the commission of heinous
H
DEEPAK RAI v. STATE OF BIHAR 341
[H.L. DATTU, J.)
crimes like murder, rape, armed dacoity, kidnapping, etc. A
by the accused with a prior record of conviction for capital
felony or offences committed by the person having a
substantial history of serious assaults and criminal
convictions.
B
(2) The offence was committed while the offender was
engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create
a fear psychosis in the public at large and was committed
in a public place by a weapon or device which clearly C
could be ha?ardous to the life of more than one person.
(4) The offence of murder was committed for ransom or
like offences to receive money or monetary benefits.
(5) Hired killings. D
(6) The offence was committed outrageously for want only
while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful E
custody.
(8) The murder or the offence was committed to prevent a
person lawfully carrying out his duty like arrest or custody
in a place of lawful confinement of himself or another. For
instance, murder is of a person who had acted in lawful F
discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making
an attempt of murder of the entire family or members of a
particular community. G
(10) When the victim is innocent, helpless or a person
rel!es upon the trust of relationship and social norms, like
a child, helpless woman, a daughter or a niece staying with
a father/uncle and is inflicted with the crime by such a H
:~42 SUPREME COURT REPORTS [2013] 14 S.C.R.
A trusted person.
(11) When murder is committed for a motive which
evidences total depravity and meanness.
(12) When there is a cold-blooded murder without
B provocation.
(13) The crime is committed so brutally that it pricks or
shocks not only the judicial conscience but even the
conscience of the society.
c Mitigating circumstances
(1) The manner and circumstances in and under which the
offence was committed, for example, extreme mental or
emotional disturbance or extreme provocation in
D contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but
not a determinative factor by itself.
(3) The chances of the accused of not indulging in
E. commission of the crime again and the probability of the
accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was
mentally defective and the defect impaired his capacity to
F appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal'course of life, would
render such a behaviour possible and could have the effect
of giving rise to mental imbalance in that given situation
like persistent harassment or, in fact, leading to such a
G
peak of human behaviour that, in the facts and
circumstances of the case, the accused believed that he
was morally justified in committing the offence.
(6) Where the court upon proper apprec;iation of evidence
H is of the view that the crime was not committed in a
DEEPAK RAI v. STATE OF BIHAR 343
[H.L. DATTU, J.]
preordained manner and that the death resulted in the A
course of commission of another crime and that there was
a possibility of it being construed as consequences to the
commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony
8
of a sole eyewitness though the prosecution has brought
home the guilt of the accused.
77. While determining the questions relatable to sentencing
policy, the court has to follow certain principles and those
principles are the loadstar besides the above C
considerations in imposition or otherwise of the death
sentence.
Principles
(1) The court has to apply the test to determine, if it was D
the "rarest of rare" case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other
punishment i.e. life imprisonment would be completely
inadequate .and would not meet the ends of justice. E
(3) Life imprisonment is the rule and death sentence is an
exception.
(4) The option to impose sentence of imprisonment for life
cannot be cautiously exercised having regard to the nature F
and circumstances of the crime and all relevant
considerations.
(5) The method (planned or otherwise) and the manner
(extent of brutality and inhumanity, etc.) in which the crime G
was committed and the circumstances leading to
commission of such heinous crime."
51. This Court has consistently held that only in th_ose
exceptional cases where the crime is so brutal, diabolical and
H
344 SUPREME COURT REPORTS [2013] 14 S.C.R.
A mvolting so as to shock the collective conscience of the
community, would it be appropriate to award death sentence.
Since such circumstances cannot be laid down as a straight
jacket formula but must be ascertained from case to case, the
l1egislature has left it open for the Courts to examine the facts
B of the case and appropriately decide upon the sentence
proportional to the gravity of the offence.
52. We would now notice the decisions of this Court to
reflect upon the various circumstances which have acted as
mitigating and aggravating factors in given facts to result in
C commutation of sentence or confirmation of death penalty; so
as to examine the sentencing policy in the backdrop of balance-
sheet of such factors in the case at hand.
Cases where death sentence is confirmed:
D
53. In Dagdu v. State of Maharashtra, (1977) 3 SCC 68,
this Court has observed as follows:
"83. Having considered the matter in all its aspects -
penal, juristic and sociogical - and having given qur most
E anxious consideration to the problem, we are of the
opinion that Accused 3, 9, 10 and 11 deserve the extreme
penalty of law and that there is no justification for interfering
with the sentence of death imposed upon them.
F 84. Accused 3 put an end to four innocent lives, three
small girls ten years of age and a woman in her thirties.
Accused 9, 10 and 11 committed the murde;s of Haribai,
her nine-year old da~ghter and her infant child. The
victims had given no cause for the atrocities perpetrated
G on them. They were killed as a child kills flies. And the
brutality accompanying the manner of killing defies an
adequate description. The luring of small girls, the
gagging, the cutting of their private parts, the ruthless
defiling in order to prevent identification of the victims and
the mysterious motive for the· murders call for but one
H
DEEPAK RAI v. STATE OF BIHAR 345
[H.L. DATIU, J.]
sentence. Nothing short of the death sentence can atone A
for such callous and calculated transgression of law. Morbid
pity can have no place in the assessment of murders which,
in many respects, will remain unparalled in the annals of
crime. Accordingly, we confirm the death sentence
imposed on Accused 3, 9, 10 and 11." B
54. In Sunder Singh v. State of Uttaranchal, (2010) 10
sec 611 the accused had gone to the place of occurrence well
prepared carrying jerry cans containing petrol, sword, pistol with
two bullets, which showed his premeditation and cold-blooded C
mind. In the incident five persons lost their lives while the sole
surviving lady survived with 70% burn injuries. The murder was
committed in a cruel, grotesque and diabolical manner, and
closing of the door of the house was the most foul act by which
the accused actually intended to burn all the persons inside the
room and precisely that happened. Hence the Court did not find .D
any sentence less harsh than the death sentence.
55. In M.A. Antony v. State of Kera/a, (2009) 6 SCC 220
all six members of a family were murdered at their residence
at njght. The motive was money, and the c;ibsence of the E
accused from his own residence during the' corresponding
period and recovery of clothes under Section 27 of the
Evidence Act, 1872, fingerprints on the doorsteps of the house
matching with those of the accused, and recovery of scalp hair
of the accused from place of occurrence were damning F
circumstantial evidence. Having regard to the chain of
circumstances and the diabolical manner of commission of
crime the death sentence was upheld.
56. In Jagdish v. State of M.P., (2009) 9 SCC 495 the
assailant murdered his wife and five children (aged 1 to 16 G
years) in his own house. The murders were particularly horrifying
as the assailant was in a dominant position and a position of
trust as the head of the family. The assailant betraying the trust
and abusing his position murdered his wife and minor children
(youngest being the only son just 1 year old). This Court held H
346 SUPREME COURT REPORTS [2013] 14 S.C.R.
A that the balance sheet of the aggravating and mitigating
circumstances was heavily weighed against the assailant
making it the rarest of rare cases. Consequently the award of
death sentence was just.
s 57. In Prajeet Kumar Singh v. State of Bihar, (2008) 4
SCC 434 the accused was a paying guest for a continuous
period of four years in lieu of a sum of Rs.500 for food and
meals. He brutally executed three innocent defenceless children
aged 8, 15 and 16, attempted to murder the father (informant)
c and mother who survived the attack with multiple injuries. There
was no provocation or reason for committing this ghastly act
at a time when the children were sleeping. There were several
incised wounds (muscle-deep or bone-deep) caused to the
deceased. Considering the brutality, diabolic, inhuman nature
and enormity of the crime (multiple murders and attacks), this
0
Court held that the mindset of the accused could not be said
to be amenable to any reformation. Therefore, it came under
the rarest of the rare category where not awarding a death
sentence would have resulted in failure of justice.
E 58. In Ram Singh v. Sonia, (2007) 3 ~CC 1 the wife in
collusion with her husband murdered not only her stepbrother
and his whole family including three tiny tots of 45 days, 2%
years and 4 years, but also her own father, mother and sister
so as to deprive her father from giving property to her
F stepbrother and his family. The murders were committed in a
cruel, pre-planned ' and diabolic manner. while the victims were
'
sleeping, without any provocation from the victim's side. It was
held that the accused persons did not possess any basic
humanity and completely lacked the psyche or mindset
G amenable to any reformation. It was a revolting and dastardly
act, and hence the case fell within the category of the rarest of
rare cases and thus death sentence was justified.
59. In Ho/iram Bordoloi v. State of Assam, (2005) 3 SCC
793 the accused persons were armed with lathis, and various
H
DEEPAK RAI v. STATE OF BIHAR 347
[H.L. DATTU, J.]
other weapons. They came to the house of the victim and A
started pelting stones on the bamboo wall of the said house.
Thereafter, they closed the house from the outside and set the
house on fire. When the son, daughter and the wife of the victim
somehow managed to come out of the house, the accused
persons caught hold of them and threw them into the fire again. B
Thereafter the elder brother who was staying in another house
at some distance from the house of the victim was caught and
dragged to the courtyard of the accused where the accused cut
him into pieces. It was held that there was absence of any strong
motive and the victims did not provoke or contribute to the c
incident. The accused was the leader of the gang, and the
offence was committed in the most barbaric manner to deter
others from challenging the supremacy of the accused in the
village. It was held that no mitigating circumstances to refrain
from imposing death penalty were found.
D
60. In Karan Singh v. State of U.P., (2005) 6 SCC 342
the two appellants chased the deceased persons and
butchered them with axes and other weapons in a very
dastardly manner. After killing three adults, the appellants
entered their house and killed two children who in no way were E
involved with the alleged property dispute with the appellants.
It was held that the sole intention here was to exterminate the
entire family. Thus, it was the rarest of the rare case.
61. In Gurmeet Singh v. State of U.P., (2005) 12 SCC 107 F
appellant G, along with his friend L killed thirteen members of
his family including small kids for a flimsy reason (objection of
family of G to the visits and stay of L at their house) while they
were asleep. The award of death sentence was held proper.
62. In State of Rajasthan v. Kheraj Ram, (2003) 8 SCC G
224 the accused deliberately planned and executed his two
innocent children, wife and brother-in-law when they were
sleeping at night. There was no remorse for such a gruesome
act which was indicated by the calmness with which he was
smoking "chilam" after the commission of the act. As it was H
348 SUPREME COURT REPORTS [2013) 14 S.C.R.
A preplanned and after the entire chain of events and
circumstances were comprehended, the i:ievitable conclusion,
was that the accused acted in the most cruel and inhuman
manner and the murder was committed in an extremely brutal,
grotesque, diabolical, revolting and dastardly manner.
B
63. In Om Prakash v. State of Uttaranchal, (2003) 1 SCC
648 the accused, a domestic servant killed three innocent
members and attempted to kill the fourth member of the family
of his employer in order to take revenge for the decision to
dispense with his service and to commit robbery. The death
G sentence was upheld.
64. In Gurdev Singh v. State of Punjab, (2003) 7 SCC 258
the appellants, having known that on the next day a marriage
was to take place in the house of the complainant and there
D would be lots of relatives present in her house, came there on
the evening when a feast was going on and started firing on
the innocent persons. Thirteen persons were killed on the spot
and eight others were seriously injured. The appellants
thereafter went to another place and killed the father and brother
E of PW 15. Out of the thirteen persons, one of them was a seven-
year-old child, three others had 'ages ranging between 15 and
17 years. The death sentence was held justified.
65. In Praveen Kumar v. State of Kamataka, (2003) 12
sec 199 the accused was accommodated by one of the
F victims (who was his aunt) despite her large family, and she
gave l'lim an opportunity to make an honest living as a tailor.
The accused committed the preplanned, cold-blooded murders
of the relatives and well-wishers (including one young child)
while they were sleeping. After the commission of the crime the
G accused abs;:;onded from judicial custody for nearly four years,
which eliminated the possibility of any remorse or rehabilitation.
Held, the extreme penalty of death was justified.
66. In Suresh v. State of UP., (2005) 6 SCC 130 the brutal
H murder of one of the accused's brother and his family members
DEEPAK RAI v. STATE OF BIHAR 349
[H.L. DATTU, J.]
including minor children at night when they were fast asleep with A
axe and chopper by cutting their skulls and necks for a piece
of land was considered to be a grotesque and diabolical act,
where any other punishment than the death penalty was
unjustified.
B
67. In Ranjeet Singh v. State of Rajasthan, (1988) 1 SCC
633 the entire family was murdered when they were fast asleep
and this Court observed as under:
"13. With regard to the sentence of death, there cannot be
two opinions. The manner in which the entire family was C
eliminated indicates that the offence was deliberate and
diabolical. It was. predetermined and cold-blooded. It was
absolutely devilish and dastardly."
68. In Ramdeo Chauhan v. State of Assam, (2000) 7 o
sec 455 the accused committed a preplanned, cold-blooded
brutal murder of four inmates of a house including two helpless
women and a child aged 2% years during their sleep with a
motive to commit theft. The accused also attacked with a spade
another inmate of the house, an old woman, and a neighbour E
when they entered the house. The Court held that the young age
(22 years) of the accused at the time of committing the crime
was not a mitigating circumstance, and death penalty was a
just and proper punishment.
69. In Narayan Chetanram Chaudhary v. State of F
Maharashtra, (2000) 8 SCC 457 there was a preplanned,
calculated, cold-blooded murder of five women, including one
pregnant woman and two children aged 1% years and 2%
years, all inmates of a house, in order to wipe out all evidence
of robbery and theft committed by two accused in the house at G
a time when male members of the house were out. It was held
that the young age (20-22 years) of the accused persons cannot
serve as a mitigating circumstance.
70. In Surja Ram v. State of Rajasthan, (1996) 6 SCC H
350 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 2·11 the appellant murdered his brother, his two minor sons and
an aged aunt by cutting their neck with a kassi while they were
all sleeping. He also attempted to murder his brother's wife and
daughter but they survived with serious injuries. The dispute
between them only related to putting a barbed fence on a
s portion of their residential complex. The death sentence was
held to be justified.
71. In Ravji v. State of Rajasthan, (1996) 2 SCC 175 the
accused in a cool and calculated manner wanted to kill his wife
and three minor children while they were asleep. When his
C mother intervened he injured her with an axe with an intention
to kill her. He then silently went to the neighbour's house and
attempted to kill his neighbour's wife who was also asleep.
When his neighbour intervened he killed him too and fled from
the place of occurrence and tried to hide himself. The accused
D had a solemn duty to protect his family members and maintain
them but he betrayed the trust reposed in him in a very cruel
and calculated manner without any provocation whatsoever.
Hence the death penalty had to be upheld.
E 72. In Sudam v. State of Maharashtra, (2011) 7 SCC 125.
this Court held that where an accused was found guilty of
committing murder of four children and a woman with whom he
was living with as husband and· wife, the death penalty was
justified and observed:
F "22. The manner in which the crime has been committed
clearly shows it to be premeditated and well planned. It
seems that all the four children and the woman were
brought near the pond in a planned manner, strangulated
to death and the dead bodies of the children thrown in the
G pond to conceal the crime. t :e not only killed Anita but
crushed her head to avoid identification. Killing four
children, tying the dead bodies in bundles of two each and
throwing them in the pond would not have been possible,
had the appellant not meticulously planned the murders. It
H shows that the crime has been committed in a beastly,
DEEPAK RAI v. STATE OF BIHAR 351
[H.L. DATTU, J.]
extremely brutal, barbaric and grotesque manner. It has A
resulted in intense and extreme indignation of the
community and shocked the collective conscience of the
society.
23. We are of the opinion that the appellant is a menace
8
to the society who cannot be reformed. Lesser punishment,
in our opinion, shall be fraught with danger as it may
expose the society to peril once again at the hands of the
appellant. We are of the opinion that the case in hand falls
in the category of the rarest of rare cases and the trial C
court did not err in awarding the death sentence and the
High Court confirming the same."
73. In Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, this
Court confirmed the death sentence given to the appellant who
had committed multiple murders of members of his family, who D
were none other than stepmother, brother and sister :n order
to inherit the entire property of his father. The appellant, in
consultation with his mother planned to eliminate the entire
family of his stepmother, and with this intention went to her
house, closed the doors and mercilessly inflicted 37 knife E
injuries ori the vital parts of the victims' bodies.
74. In Ajitsingh Harnamsingh Gujral v. State of
Maharashtra, (2011) 14 sec 401 the appellant was convicted
for burning wife and three grown up children. While awarding F
the sentence of death this Court considered the following
circumstances which weighed in favor of the capital punishment:
"91. In our opinion, a person like the appellant who instead
of doing his duty of protecting his family kills them in such
a cruel and barbaric manner cannot be reformed or G
rehabilitated. The balance sheet is heavily against him and
accordingly we uphold the death sentence awarded to him.
92. In the present case the accused did not act on any spur
of the moment provocation. It is no doubt that a quarrel H
352 SUPREME COURT REPORTS [2013] 14 S.C.R.
A occurred between him and his wife at midnight, but the fact
that he had brought a large quantity of petrol to his
residential apartment shows that he had pre-planned the
diabolical and gruesome murder in a dastardly manner."
Cases where death sentence is commuted:
8
75. Mohd. Chaman v. State (NCT of Delhi), (2001) 2
sec 28 was a case where the convict had raped a one-and-
a-half year old child who died as a result of the unfortunate
incident. This Court found that the crime committed was serious
C and heinous and the criminal had a dirty and perverted mind
and had no control over his carnal desires. Nevertheless, this
Court found it difficult to hold that the criminal was such a
dangerous person that to spare his life would endanger the
community. This Court reduced the sentence to imprisonment
D for life since the case was one in which a "humanist approach"
should be taken in the matter of awarding punishment.
76. Difip Premnarayan Tiwari v. State of Maharashtra,
(2010) 1 sec 775 was a case in which three convicts had killed
E two persons and grievously injured two others, leaving them for
dead. A third victim later succumbed to his injuries. While
noticing that the crime was in the nature of, what is nowadays
referred to as "honour killing", this Court reduced the death
sentence awarded to two of the criminals to imprisonment for
life with a direction that they should not be released until they
F complete 25 years of actual imprisonment. The third criminal
was sentenced to undergo 20 years of actual imprisonment.
That these criminals were young persons who did not have
criminal antecedents weighed in reducing their death sentence.
G 77. Sebastian v. State of Kera/a, (2010) 1 SCC 58 was
a case in which the criminal had raped and murdered a two-
year-old child. He was found to be a paedophile with "extremely
violent propensities". Earlier, in 1998,'he was convicted of an
offence under Section 354 IPC, that is, assault or use of
H criminal force on a woman with intent to outrage her modesty,
DEEPAK RAI v. STATE OF BIHAR 353
[H.L. DATTU, J.]
an offence carrying a maximum sentence of two years' A
imprisonment with fine. Subsequently, he was convicted for a
more serious offence under Sections 302, 363 and 376 IPC but
an appeal was pending against his conviction. The convict also
appears to have been tried for the murder of several other
children but was acquitted in 2005 with the benefit of doubt, the B
last event having taken place three days after he had committed
the rape and murder of the two-year-old child. Notwithstanding
the nature of the offence as well as his "extremely violent
propensities", the sentence of death awarded to him was
reduced to imprisonment for the rest of his life. c
78. In Rajesh Kumar case (supra) the appellant had
murdered two children. One of them was four-and-a-half year
old and the criminal had slit his throat with a piece of glass which
he obtained from breaking the dressing table. The other child
was an infant of eight months who was killed by holding his legs D
and hitting him on the floor. Despite the brutality of the crime,
the death sentence awarded to this convict was reduced to that
of life imprisonment. It was held that he was not a continuing
threat to the society and that the State had not produced any
evidence to show that he was incapable of reform and E
rehabilitation.
79. Amit v. State of U.P., (2012) 4 sec 107 was a case
in which a three-year-old child was subjected to rape, an
unnatural offence and murder. The convict was also found guilty F
of causing the disappearance of evidence. The sentence of
death awarded to him was reduced to imprisonment for life
subject to remissions. It was held that there was nothing to
suggest that he would repeat the offence and that the
possibilities of his reform over a period of years could not be G
ruled out since there was no evidence of any earlier offence
committed by him.
80. In the present circumstances, we would place reliance
upon the observations of this Court in State of U.P. v.
Dharmendra Singh, (1999) 8 sec 325. In this case, 6 accused H
354 SUPREME COURT REPORTS [2013] 14 S.C.R.
A persons were charged with offence under Section 302 read
with 149 of the IPC for murdering 5 persons: an old man of 75
years, a woman aged 32 years, two boys aged 12 years and
a girl aged 15 years, at night when they were asleep by inflicting
multiple injuries to wreak vengeance. The Trial Court while
B convicting them had awarded life sentence in regard to 4
accused persons and after assigning reasons awarded death
sentence to the 2 others. In appeal the High Court upheld the
conviction of all accused persons and while confirming life
sentence on the 4 accused persons came to the conclusion that
the sentence of death was not called for in respect to 2 accused
C persons who were languishing in the death cell for 3 years and
consequently reduced the sentence to that of imprisonment of
life. In appeal, this Court in context of the argument that since
individual overt acts that have not been established, even ifthe
conviction is to be upheld, capital punishment should not be
D granted, has observed as follows:
"15. We have carefully perused the evidence adduced in
this case, to the limited extent of examining whether the
case in hand is a case which could be termed as rarest
E of the rare cases so as to invok~ the extreme penalty of
death. The learned Sessions Judge while assigning
special reasons for awarding the capital punishment came
to the conclusion that the crime in question was a dastardly
crime involving the death of 5 innocent human beings for
F the purpose of achieving the sadistic goals of Dharmendra
and Narendra, the respondents herein, to avenge their
respective grouse against the complainant and his niece
Reeta by eliminating 5 members of the family. Learned
Sessions Judge distinguished the case of the 4 other
accused with that of these respondents based on the
G
motive and on the ground that these respondents were the
principal perpetrators of the crime. It is seen that the High
Court has concurred with this reasoning of the Sessions
Judge. However, the High Court on the ground that the
accused have languished in the death cell for 3 years,
H
DEEPAK RAI v. STATE OF BIHAR 355
[H.L. DATTU, J.]
altered the sentence to life imprisonment. A
23. It is possible in a given set of facts that the court might
think even in a case where death sentence can be
awarded, the same need not be awarded because of the B
peculiar facts of that case like the possibility of one or more
of the accused being responsible for offences less
culpable than the other accused. In such circumstances, in
the absence of their being no material available, to bifurcate
the case of each accused person, the court might think it C
prudent not to award the extreme penalty of death. But then
such a decision would rest on the availability of evidence
in a particular case. We do not think that a straitjacket
formula for awarding death sentence can be evolved which
is applicable to all cases. The facts of each case will have D
their own implication on the question of awarding sentence.
In Ronny case (1998) 3 SCC 625, this Court on facts found
extenuating factors to curb the sentence which is clear from
the following extract from the said judgment: (SCC p. 654,
~ra4n E
"From the facts and circumstances, it is not possible to
predict as to who among the three played which part. It may
be that the role of one has been more culpable in degree
than that of the others and vice versa. Where in a case like
this it is not possible to say as to whose case falls within F
the 'rarest of the rare' cases, it would serve the ends of
justice if the capital punishment is commuted into life
imprisonment."
81. Further in Dharmendra Singh case (supra) this Court G
while rejecting the mitigating circumstance of expectation of
survival due to reversal of sentence by the High Court, observed:
"25 ... In a judicial system like ours where there is a
hierarchy of courts, the possibility of reversal of judgments H
3!56 SUPREME COURT REPORTS [2013] 14 S.C.R.
A is inevitable, therefore, expectations of an accused cannot
be a mitigating factor to interfere in an appeal for
enhancement of sentence if the same is otherwise called
for in law.
26. Taking into consideration the brutality of the attack, the
B
number of persons murdered, the age and infirmity of the
victims, their vulnerability and the diabolic motive, acts of
perversion on the person of Reeta, cumulatively we find the
sentence awarded by the trial court was just and proper. "
C Mitigating and Aggravating Circumstances in the present
case:
82. Having noticed the decisions of this Court on the said
aspect, we would revert to the factual position in this case.
0 Herein, the time, place, manner of and the motive behind
commissior. of the crime speak volumes of the pre-mediated
and callous nature of the offence. The ruthlessness of the
appellants is reflected through brutal murders of the young,
innocent children and wife of the informant by bu ming them alive
r: to avenge their cause in the dark of the night; the cause being
non-withdrawal of an FIR filed by the informant for theft of his
buffalo against the appellant-A 1. Further, from the record we
gather that only family members of the informant have come
forward to depose as the entire village must have been
shocked with the ghastly murders of the deceased persons and
F in such circumstances would not have come forward to testify
·against the appellants who already had translated the threats
given to the informant in village panchayat into a shocking
reality. While our experience reminds us that civilized people
generally unsuccinctly when the crime is committed infact in
G their presence, withdraw themselves both from the victim and
· the vigilante unless inevitable and consider that crime like civil
disputes must restrict itself to the two parties, it also evidences
for the threat the incident had instilled amongst the villagers that
none in such close knit unit besides the sanguine relatives had
H
DEEPAK RAI v. STATE OF BIHAR 357
[H.L. DATTU, J.]
come forth to testify against the accused. A
83. The mitigating circumstances elaborated upon by Shri
Mishra in respect of comparatively young age of the appellants
~olds no ground, their army background and their custodial
behavior fail to outweigh the aggravating factors in the present 8
case. The argument that the appellants are not "antisocial
elements" fails into inception in the light of the effect of the
occurrence reflected through the abstinence of the villagers from
deposing against them at the trial.
84. However, in the present case, while taking an overall C
view, no overt act in the commission of crime could be attributed
to A3. The role played by A3 during commission of the crime
as established was to hold the barrels of kerosene along with
one other. While determining the gravity of the offence
committed by the appellants it must be noticed that it is only D
A 1 who had threatened the informant of burning his house in
case the FIR against his family and him were not withdrawn.
Further, A 1 during the occurrence not only scripted and
instructed the rest of the unlawful assembly but also lighted the
matchstick to burn the house as well informant's body'. A2, E
pushed the informant to the ground and later fired at him:
85. Further, in respect of the mitigating factors of lack of
criminal antecedents or probabilities of the appellants to be
menace to the society, we would re-iterate the observations of
this Court in Gurdev Singh v. State of Punjab, (2003) 7 SCC
F
258 that it is indeed true that the underlying principle of our
sentencing jurisprudence is reformation and there is nothing in
evidence to show that the appellants have been a threat or
menace to the society at large besides the FIR regarding the
theft of buffalo. It is also true that we cannot say that they would G
be a further menace to the society or not as we live as
creatures saddled with an imperfect ability to predict the future.
Nevertheless, the law prescribes for future, based upon its
knowledge of the past and is being forced to deal with
tomorrow's problems with yesterday's tools. H
358 'SUPREME COURT REPORTS [2013] 14 S.C.R.
A. 86. However, in the peculiar facts of this case, the
possibility of A3 being less culpable than the other accused
cannot be answered in affirmative. Therefore, in our considered
view, we do not deem it proper to sentence A3 to death in light
of there being no overt act attributable to him and sentence to
B imprisonment till the end of his life would appropriately serve
as punishment proportional to the degree of offence committed
by him.
87. In respect of A 1 and A2, we are of the considered view
C that the instant case falls into such category of rarest of the rare
cases where culpability has assumed the proportion of extreme
depravity and the appellant-accused are perfect example of a
blood thirsty, scheming and hardened criminals who slayed
seven innocent lives to quench their thirst for revenge and such
revenge evolving out of a fellow citizens refusal to abstain from
D resorting to machinery of law to protect his rights. The entire
incident is extremely revolting and shocks the collective
conscience of the community. The acts of murder committed
by the appellants are so gruesome, merciless and brutal that
the aggravating circumstances far outweigh the mitigating
E circumstances.
88. We now proceed to examine such special reasons
which negate the possibility of any sentence but for death
penalty. Herein, A1 and A2 have committed a cold blooded
F murder in a pre-ordained fashion without any provocation
whatsoever. The motive behind the gruesome act was to
avenge the act of informant in approaching the machinery of
law enforcement inspite of threats by the appellants. The victims
were five innocent children and wife of the informant who were
G sleeping unalarmed when the appellants came and locked them
inside their house while it was set ablaze. Further, wrath of A 1
and A2 is reflected in their act of first gagging the informant,
thereafter attempting to burn him alive and later, when he tried
to escape, firing at him thereby leaving no stone unturned in
H translating their threats into reality. As a result of the aforesaid
DEEPAK RAI v. STATE OF BIHAR 359
[H.L. DATIU, J.]
incident, having witnessed the threats of burning given by the A
A 1 to the informant tuned into reality, none but the family of the
deceased-informant came forth to depose against the
appellant-accused persons during the trial. The crime,
enormous in proportion having wiped off the whole family, is
committed so brutally that it pricks and shocks not only the B
judicial conscience but even the collective conscience of the
society. It demands just punishment from the Court and the
Court is bound to respond within legal parameters. The demand
for justice and the award of punishm~nt have to be in
consonance with the legislative command and the discretion c
vested in the Courts.
89. On the question of striking a delicate balance between ·
the proportionality of crime to the sentencing policy, Lord
Denning has observed as follows on the very purpose of
imposition of a punishment: D
"... the punishment is the way in which society expresses
its denunciation of wrong doing; and, in order to maintain
respect for the law, it is essential that the punishment
inflicted for grave crimes should adequ.ately reflect the E
revulsion felt by the great majority of citizens for them. It is
a mistake to consider the objects of punishments as being
a deterrent or reformative or preventive and nothing else ...
The truth is that some crimes are so outrageous that
society insists on adequate punishment, because the F
wrong doer deserves it, irrespective of whether it is a
deterrent or nof."
90. In light of the aforesaid, having regard to the gravity of
the offence committed, we are of the considered opinion that
with regard to A 1 and A2 this case falls into the category of G
rarest of the rare cases and is not a case where imprisonment
for life is an adequate sentence and thus, constrained to reach
the iilescapable conclusion that death sentence imposed on A 1
and A2 be confirmed.
H
360 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 91. Therefore, the sentence of death imposed on A 1 and
A2 is confirmed and the sentence awarded to A3 is commuted
to life imprisonment till the rest of his life.
92. The order of stay on the execution of the capital
punishment of A1 and A2 is vacated.
8
93. The appeals are disposed of in the aforesaid terms.
Kalpana K. Tripathy. Appeals disposed of.
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