M. A. ANTONY @ ANTAPPANversusSTATE OF KERALA

296                     [2018] REPORTS
               SUPREME COURT   13 S.C.R. 296              [2018] 13 S.C.R.


A                      M. A. ANTONY @ ANTAPPAN
                                        v.
                             STATE OF KERALA
                    (Review Petition (Crl.) No. 245 of 2010)
B                                       in
                        Criminal Appeal No. 811 of 2009
                             DECEMBER 12, 2018
             [MADAN B. LOKUR, S. ABDUL NAZEER AND
                       DEEPAK GUPTA, JJ.]
C
            Practice and Procedure – Death sentence – Commutation of,
      into life sentence– Mitigating factors to be considered – Socio-
      Economic factors – Appellant murdered six members of one family
      – Sessions Court convicted the appellant – Trial Judge sentenced
      the appellant “to be hanged by the neck till he is dead” – High
D     Court confirmed the death sentence – Appellant filed appeal before
      Supreme Court – Dismissed– Appellant filed Review Petition–
      Dismissed– Review petition re-opened– Held: Socio-economic
      circumstances relating to the appellant are relevant for objective
      consideration of the award of sentence – Socio-economic factors
      must be taken into consideration while awarding sentence,
E
      particularly the ground realities relating to access to justice that
      are not easily available to the poor and needy – In the present case,
      convict was working as driver on casual basis and was desirous of
      obtaining employment in the Gulf and was making all attempts in
      this direction– He managed to arrange a visa but had to pay the
F     agent Rs.62,000/- – Due to severe financial constraints he could
      only arrange Rs.25,000/- – He had gone to the house of the deceased
      family for getting money– But, unfortunately he was unable to obtain
      any funds from them and this led to his decision to kill all of them –
      Socio-economic condition of the appellant was a significant factor
      that ought to have been taken into consideration by the Trial Court
G
      and the High Court while considering the punishment to be given
      to the appellant – While the socio-economic condition of a convict
      is not a factor for disproving his guilt, it is a factor that must be
      taken into consideration for the purposes of awarding an
      appropriate sentence to a convict – Trial Court was in error while
H     awarding death sentence to the appellant on the basis that he was
                                       296
     M. A. ANTONY @ ANTAPPAN v. STATE OF KERALA                        297


a hardened criminal– There is no such evidence on record– Death        A
sentence awarded to the appellant converted into sentence of
imprisonment for life.
      Disposing of the review petition, the Court
      HELD: 1.1 The socio-economic factors relating to a convict
should be taken into consideration for the purposes of deciding        B
whether to award life sentence or death sentence. Socio-economic
factors must be taken into consideration while awarding a
sentence particularly the ground realities relating to access to
justice and remedies to justice that are not easily available to the
poor and the needy. [Paras 15, 16][305-B; 306-C]                       C
      1.2 The consideration of socio-economic factors is tied up
with another important issue (which need not necessarily or
always be taken into consideration for sentencing purposes, but
could be relevant in a given case) and that is whether the
convict has had adequate legal representation. Quality legal aid
to the disadvantaged and weaker sections of society is an              D
area that requires great and urgent attention. [Paras 17, 18]
[306-C-D, F-G]
      1.3 On the facts of the present case, the convict was working
as a driver on a casual basis. He was desirous of obtaining
employment in the Gulf and was making all attempts in this             E
direction. He managed to arrange a visa but had to pay the agent
Rs.62,000/-. Due to severe financial constraints he could only
arrange Rs.25,000/- for making the initial payment. He continued
making attempts to raise the amount. His economic condition
was so severe that for the purposes of going to Gulf he had to         F
proceed from Ernakulam to Mumbai by train and while he could
manage to purchase the ticket, he was unable to pay for
reservation charges. Under these circumstances, he had gone to
the house of the deceased family for getting money or by stealing
it or by grabbing it by any other means. But unfortunately for
him and the deceased family, he was unable to obtain any funds         G
from them and this led to his decision to kill all of them.
[Para 26][310-C-E]
      Public opinion or collective conscience of the society
      1.4 It would be wise if impressions gathered on what is
perceived to be public opinion or collective conscience of the         H
298            SUPREME COURT REPORTS                     [2018] 13 S.C.R.


A     society are eschewed while sentencing a convict found guilty of a
      grave or brutal crime. On the facts of the present case, there was
      no material whatsoever to come to the conclusion that the gravity
      of the crime caused revulsion in the society or that it had
      materially disturbed normal life in the society. Consequently, the
      view expressed by the Trial Judge in this regard must be
B
      disregarded for the purposes of imposing an appropriate sentence
      on the appellant. [Para 27][311-C-D]
            Conclusion
            1.5 All the courts including this Court overlooked
      consideration of the probability of reform or rehabilitation and
C     social reintegration of the appellant into society. The Trial Court
      was in error proceeding on the basis, while awarding a sentence
      of death to the appellant by observing that he was a hardened
      criminal. There is no such evidence on material or on record.
      The socio-economic condition of the appellant was a significant
D     factor that ought to have been taken into consideration by the
      Trial Court as well the High Court while considering the
      punishment to be given to the appellant. While the socio-economic
      condition of a convict is not a factor for disproving his guilt, it is
      a factor that must be taken into consideration for the purposes of
      awarding an appropriate sentence to a convict. The death
E     sentence awarded to the appellant is converted into a sentence
      of imprisonment for life. [Paras 29, 30, 31 and 33][311-F-H;
      312-A-B, E-F]
            Bachan Singh v. State of Punjab (1980) 2 SCC 684 –
            followed.
F           Surendra Pal Shivbalakpal v. State of Gujarat (2005)
            3 SCC 127 : [2004] 4 Suppl. SCR 464 ; Sushil Kumar
            v. State of Punjab (2009) 10 SCC 434 ; Mulla v. State
            of Uttar Pradesh (2010) 3 SCC 508 : [2010] 2 SCR
            633 ; Kamleshwar Paswan v. Union Territory of
G           Chandigarh (2011) 11 SCC 564 : [2011] 1 SCR 647 ;
            Mahesh Dhanaji Shinde v. State of Maharashtra (2014)
            4 SCC 292 : [2014] 3 SCR 406 ; Santosh Kumar
            Satishbhushan Bariyar v. State of Maharashtra (2009)
            6 SCC 498 – relied on.

H
     M. A. ANTONY @ ANTAPPAN v. STATE OF KERALA                           299


      Mohd. Arif alias Ashfaq v. The Registrar Supreme Court              A
      of India & others (2014) 9 SCC 737 : [2014] 11 SCR
      1009 ; State of U.P. v. M.K. Anthony (1985) 1 SCC 505;
      Rajendra Pralhadrao Wasnik v. State of Maharashtra
      Decided on 12.12.2018 by Supreme Court in Review
      Petition (Criminal) Nos. 306-307 of 2013; Ramesh v.
                                                                          B
      State of Rajasthan (2011) 3 SCC 685: [2011] 4
      SCR 585 – referred to
                       Case Law Reference
[2014] 11 SCR 1009              referred to              Para 9
(1980) 2 SCC 684                followed                 Para 15          C
(1985) 1 SCC 505                referred to              Para 19
[2004] 4 Suppl. SCR 464         relied on                Para 20
(2009) 10 SCC 434               relied on                Para 21
[2010] 2 SCR 633                relied on                Para 22          D
[2011] 1 SCR 647                relied on                Para 23
[2014] 3 SCR 406                relied on                Para 24
(2009) 6 SCC 498                relied on                Para 27
[2011] 4 SCR 585                referred to              Para 32
                                                                          E
      CRIMINAL APPELLATE JURISDICTION : Review Petition
(Criminal) No. 245 of 2010 in
      Criminal Appeal No. 811 of 2009.
     From the Judgment and Order dated 18.09.2006 of the High Court
of Kerala at Ernakulam in Death Sentence Ref. No. 5 of 2005 and           F
Criminal Appeal No. 385 of 2005 (C)
      Sanjay Parikh, Manoj V. George, Shilpa Liza George, Ms. Ninni
Susan Thomas, Ashita Arora, Amit Kumar, Yash S. Vijay, Ms. Sanjana
Srikumar, Rajeev Kumar Dubey, Aakarsh Kamra, Kamlendra Mishra,
Advs. for the Appellant.
                                                                          G
      K. N. Balgopal, Sr. Adv., G. Prakash, Jishnu M. L., Mrs. Priyanka
Prakash, Mrs. Beena Prakash, Mukundan Nitya Nambiar, Vitso Rio,
Advs. for the Respondent.


                                                                          H
300             SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A           The Judgment of the Court was delivered by
            MADAN B. LOKUR, J.
             1. The broad allegations against the appellant have been stated in
      the decision of this Court in the criminal appeal out of which the present
      Review Petition arises. It would be more convenient to reproduce the
B     allegations from the decision:
            “On the intervening night of 6th and 7th January, 2001, when inmates
            of Aluva Municipal Town of Ernakulam District in the State of
            Kerala were in deep sleep, Manjooran House located in the midst
            of the town became a scene of ghastly crime. Six members of
C           one family in the Manjooran House lost their lives in a matter of
            three hours, Antony @ Antappan, the appellant herein, in search
            of greener pastures abroad for which purpose he needed money
            but was refused to be paid by the members of the Manjooran
            family, and therefore as per the prosecution’s version used knife,
            axe, and electrocuted and strangulated Kochurani and Clara at
D           about 10 in the night of 6.1.2001 and Augustine, his wife Mary,
            and their children – Divya and Jesmon at midnight. The Manjooran
            House full of life at 10 in the night by the stroke of midnight became
            a graveyard. The appellant after causing the death of Kochurani
            and Clara is said to have waited for the arrival of other four
E           members of the family who had gone to see a film show. On their
            arrival he turned them into corpses. He waited for their arrival to
            kill them as he knew that for the two murders committed earlier
            by him he would be suspected by them, as he was in the house
            when they left the house for the film show. The prosecution
            alleges that all these murders were cold blooded, planned and
F           executed with precision and the appellant ensured that there is no
            trace of life left in them before he left the scene of occurrence.
            When put to trial for murders, appellant, however, pleaded
            innocence and claimed trial.”
             2. After trial, the Sessions Court in Ernakulam in Kerala in Sessions
G     Case No.154 of 2004 found the appellant guilty of the offences and
      convicted him by judgment and order dated 31st January, 2005. It appears
      that submissions on the question whether the appellant should be awarded
      life sentence or death sentence were addressed on the same day or
      immediately thereafter since on 2nd February, 2005 the Trial Judge
      sentenced the appellant “to be hanged by the neck till he is dead”.
H
     M. A. ANTONY @ ANTAPPAN v. STATE OF KERALA                               301
                 [MADAN B. LOKUR, J.]

       3. The Trial Judge stated, while awarding the sentence of death,       A
as follows:
      “231. The cruel tendency of the accused was writ large even in
      the manner of attack. His conduct and behaviour is repulsive to
      the collective conscience of the society. It is clear that he does
      not value the lives of others in the least. The fact that the murders   B
      in this case were committed in such a deliberate and diabolic
      manner even beyond the slight expectation of the victims, without
      any provocation whatsoever from the side of the victims that too
      having enjoyed the hospitality and kindness of the victims, indicate
      the cold blooded and premeditated approach of the accused to
      put to death the victims which included two innocent children in        C
      their earlier teenages also, for a sordid purpose.
      232. It was clearly come out that his wife and child are not residing
      with the accused. He does not know even the school at which his
      wife is working as teacher. Even according to him, she has not
      cared to come to reside with him after the incident in this case. In    D
      fact, all my searches for extenuating circumstances in this case
      are in vain. From various judicial pronouncements of the Hon’ble
      Supreme Court of India on the subject, it has come out that in the
      choice of sentence the court has to weigh the aggravating and
      mitigating factors available on the facts of the case to find out
                                                                              E
      whether special reasons do exist to categories [categorize] the
      case as one among the “rarest of rare cases”.
      233. The accused is a hardened criminal beyond any correction
      and rehabilitation. In this case the culpability has assumed the
      preparation of extreme depravity. The accused is a preferred
      example of blood thirsty, irreclaimable and hardened criminal. This     F
      court is of the view that, to spare such a criminal from the gallows
      is to render the justicing system suspect and to have recourse to
      the lesser alternative in sentencing this accused will be a mockery
      of justice. As this incident had sent tremors in the society and the
      collective conscience of the community as such was shocked, it          G
      is not to be humane but to be callous to allow such a criminal to
      return to the society. When multiple murders are committed in
      the most cruel, inhuman, extreme, brutal, gruesome, diabolic,
      revolting and dastardly manner, this court cannot wriggle out of
      the infliction of the extreme penalty. Matters being so, special
                                                                              H
302            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


A           reasons do exist in this case under Section 354(3) Cr. P.C. and
            this case comes within the category of “rarest of rare case” in
            which the “lesser alternative is unquestionably foreclosed.”
            4. The conviction and sentence came up for confirmation before
      the High Court of Kerala in Death Sentence Reference No.5 of 2005.
B     The appellant was also aggrieved by his conviction and sentence and he
      preferred Criminal Appeal No.385 of 2005 against the judgment and
      sentence of the Trial Court.
            5. By a judgment and order dated 18th September, 2006 the High
      Court confirmed the death sentence and dismissed the appeal of the
C     appellant.
             6. On the award of the death sentence, the High Court took the
      view that the crime committed by the appellant was most cruel and
      diabolical. It was observed that he had no respect, no care, no dignity,
      no mercy for human life and his living in this world is most dangerous to
      society. The High Court expressed its views on the sentence to be
D     awarded to the appellant in paragraph 49 of the judgement. This reads
      as follows:
            “49. On the question of sentence all that has been urged before
            us by Mr. Ramakumar is that the present is not a ‘rarest of rare’
            case where the appellant should be given capital punishment. No
E           arguments have been raised to show any mitigating circumstances.
            We have reconsidered and yet reconsidered every aspect of the
            case. On every reconsideration, our view gets more and more
            strengthened that in the present case, death penalty has to be
            imposed. It is indeed a rarest of rare case. In this country of
F           seers and sages, even a worm unconsciously trampled under the
            foot is considered to be a sin. Guided and motivated by tradition
            of non-violence, people in this country do not even think of
            physically harming anyone. Mahatma Gandhi, the Father of the
            Nation and many other stalwarts brought freedom to this Nation
            from the British Empire by fighting a bloodless war of
G           independence. The appellant has trampled these lofty ideals and
            traditions of this country under his foot. He extinguished all
            members of a family in a most cruel and gruesome manner. He
            became instrumental in causing black and unmitigated tragedy
            and caused shudders to the society. In causing death of six
            members of a family, he acted in a most cruel and diabolical
H
         M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA                               303
                    [MADAN B. LOKUR, J.]

          manner. He used every possible instrument in the house to cause        A
          their death. As the confession goes if knives would not be enough
          to kill the inmates, he would use furniture in the house to strike
          them, and if that be not enough he would axe them, and even if
          that be not enough he would electrocute them and if still not enough
          he would strangulate them. In cruelty and brutality, he exceeded
                                                                                 B
          all limits. It is unimaginable, unthinkable and difficult to believe
          that after causing six murders by splashing blood all around the
          house, he would sit in the same house for almost five hours as if
          he was not siting amongst six dead people, but amongst trophies
          won by him in a prestigious event. He has no respect, no care, no
          dignity, no mercy for human life. His living in this world is most     C
          dangerous to the society. We need not refer to various judicial
          precedents as every case has its own facts, but would hasten to
          make reference to only one case which appears nearest on facts
          of the present case. In Dayanidhi Bisoi v. State of Orissa,
          2003 Crl.L.J. 3697 (SC), a case which was based upon
                                                                                 D
          circumstantial evidence, accused was related to the deceased.
          He was enjoying hospitality and kindness of deceased in the
          evening. He killed entire family of deceased which included a
          three years child in the night. Murders were committed when the
          victims were sleeping and there was no provocation from the
          victims. The motive was only to gain financial benefits. The           E
          Supreme Court found it to be case of cold blooded murder with
          premeditated approach of accused. It was held to be a rarest of
          rare case. The accused was sentenced to death.”
       7. Feeling aggrieved by his conviction and confirmation of the
death sentence, the appellant preferred Criminal Appeal No. 811 of 2009          F
in this Court which was dismissed by a judgment and order dated 22 nd
April, 2009. This Court did not at all advert to or discuss the quantum of
sentence awarded to the appellant. This was decided on its facts and
dismissed.
      8. Feeling aggrieved by the dismissal of his appeal, the appellant
                                                                                 G
preferred Review Petition (Crl.) No.245 of 2010 but that was dismissed
by an order dated 13th April, 2010.
       9. In view of the decision of this Court in Mohd. Arif alias Ashfaq
v. The Registrar Supreme Court of India & others1 the said review
petition was re-opened for consideration and that is how it is before us.
1
                                                                                 H
    (2014) 9 SCC 737
304             SUPREME COURT REPORTS                           [2018] 13 S.C.R.


A            Submissions
             10. Learned counsel for the appellant raised a variety of grounds
      for commuting the death sentence awarded to the appellant into one of
      life sentence. It was contended that the case was one of circumstantial
      evidence and therefore the sentence of death should not be awarded.
B     It was also contended that this Court as well the High Court and the
      Trial Court failed to consider the probability of reformation of the appellant.
      It was also contended that the prior history and criminal antecedents of
      the appellant were not relevant in awarding the sentence. It was submitted
      that the Trial Judge had erroneously described the appellant as a hardened
      criminal. In fact, we find that learned counsel for the appellant is correct
C     in this submission since there is absolutely nothing on record to show
      that the appellant had previously committed any crime whatsoever. Indeed,
      there is nothing on record to even suggest that the appellant was a
      hardened criminal.
            11. We do not propose to deal with the submissions advanced by
D     learned counsel since similar submissions were raised before us in
      Rajendra Pralhadrao Wasnik v. State of Maharashtra in which we
      have delivered judgment today. The cases cited by learned counsel for
      the appellant in this petition as well as in Rajendra Pralhadrao Wasnik
      were the same and we would only be duplicating our efforts and repeating
      what we have already said.
E
             12. Apart from the above submissions, it was contended by learned
      counsel for the appellant that the socio-economic circumstances relating
      to the appellant are relevant for an objective consideration of the award
      of sentence and these have not been considered by any court including
      this Court.
F
              13. It was submitted that the “collective conscience of the society”
      and reference to it for the purposes of imposition of a sentence is totally
      misplaced. It is not possible to determine public opinion through evidence
      recorded in a trial for an offence of murder and it is even more difficult,
      if not impossible, to determine something as amorphous as the collective
G     conscience of the society.
             14. Finally, it was submitted that the appellant has been in custody
      for a considerable period of time and that by itself is a good ground for
      commutation of his sentence from death to life imprisonment. In this
      context, it was stated that the appellant was arrested on 18th February,
H     2001. He remained in custody until he was granted bail on 25 th January,
         M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA                                  305
                    [MADAN B. LOKUR, J.]

2002. He was again arrested when the Trial Court convicted him on                   A
31st January, 2005 and since then he is continuously in custody having
spent about 14 years in custody and about three years on bail.
          Consideration of socio-economic factors
       15. There is no doubt that the socio-economic factors relating to a
convict should be taken into consideration for the purposes of deciding             B
whether to award life sentence or death sentence. One of the reasons
for this is the perception (perhaps misplaced) that it is only convicts
belonging to the poor and disadvantaged sections of society that are
awarded capital sentence while others are not. Although Bachan Singh
v. State of Punjab2 does not allude to socio-economic factors for being             C
taken into consideration as one of the mitigating factors in favour of a
convict, the development of the law in the country, particularly through
the Supreme Court, has introduced this as one of the factors to be taken
into consideration. In fact, in Bachan Singh this Court recognised that
a range of factors exist and could be taken into consideration and accepted
this position. In paragraph 209 of the Report it is rather felicitously stated      D
as follows:
          “209. There are numerous other circumstances justifying the
          passing of the lighter sentence; as there are countervailing
          circumstances of aggravation. “We cannot obviously feed into a
          judicial computer all such situations since they are astrological         E
          imponderables in an imperfect and undulating society.”
          Nonetheless, it cannot be over-emphasised that the scope
          and concept of mitigating factors in the area of death penalty
          must receive a liberal and expansive construction by the
          courts in accord with the sentencing policy writ large in
          Section 354(3). Judges should never be bloodthirsty.                      F
          Hanging of murderers has never been too good for them.3
          Facts and Figures, albeit incomplete, furnished by the Union of
          India, show that in the past, courts have inflicted the extreme
          penalty with extreme infrequency — a fact which attests to the
          caution and compassion which they have always brought to bear             G
          on the exercise of their sentencing discretion in so grave a matter.
          It is, therefore, imperative to voice the concern that courts, aided
          by the broad illustrative guide-lines indicated by us, will discharge
          the onerous function with evermore scrupulous care and humane
2
    (1980) 2 SCC 684
3
    We may add that hanging of murderers has never been too good for them either!   H
306                 SUPREME COURT REPORTS                            [2018] 13 S.C.R.


A               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. A real
                and abiding concern for the dignity of human life postulates
                resistance to taking a life through law’s instrumentality. That ought
                not to be done save in the rarest of rare cases when the alternative
B
                option is unquestionably foreclosed.” (Emphasis supplied by us).
             16. Following the view laid down by the Constitution Bench of
      this Court, we endorse and accept that socio-economic factors must be
      taken into consideration while awarding a sentence particularly the ground
      realities relating to access to justice and remedies to justice that are not
C     easily available to the poor and the needy.
             17. The consideration of socio-economic factors is tied up with
      another important issue (which need not necessarily or always be taken
      into consideration for sentencing purposes, but could be relevant in a
      given case) and that is whether the convict has had adequate legal
D     representation. Several accused persons belonging to the weaker sections
      of society cannot afford defence counsel and they are obliged to turn to
      the National Legal Services Authority, the State Legal Services Authority
      or the District Legal Services Committee for legal representation. While
      these authorities provide the best legal assistance possible at their
      command, it sometimes falls short of expectations resulting in the
E
      conviction of an accused and, depending upon the facts of the case and
      the sentencing process followed, a sentence of death follows.
             18. That the poor are more often than not at the receiving end in
      access to justice and access to the remedies available is evident from a
      fairly recent report prepared by the Supreme Court Legal Services
F     Committee4 which acknowledges, through Project Sahyog, enormous
      delays in attending to cases of the poor and the needy. Quality legal aid
      to the disadvantaged and weaker sections of society is an area that
      requires great and urgent attention and we hope that a vigorous beginning
      is made in this direction in the new year.
G            19. Reverting to the issue of socio-economic factors, we are not
      sure when this was introduced as a mitigating factor for consideration in
      deciding whether life imprisonment or death sentence should be awarded.
      Be that as it may, the earliest decision to which our attention was drawn
      is State of U.P. v. M.K. Anthony5 in which this Court cautioned against
      4
          Website of the Supreme Court Legal Services Committee – www.sclsc.nic.in
H     5
          (1985) 1 SCC 505
         M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA                              307
                    [MADAN B. LOKUR, J.]

being overwhelmed by the gravity or brutality of the offence. As held in        A
Bachan Singh, it is not only the crime that is of importance in the
sentencing process but it is also the criminal. With this in view, this Court
considered the plight of the have-not and commuted the death sentence
into one of imprisonment for life. This is what this Court said in paragraph
23 of the Report:
                                                                                B
          “23. The last question is what sentence should be imposed upon
          the respondent. The learned Sessions Judge has imposed maximum
          penalty that could be imposed under the law, namely, sentence of
          death. The murder of near and dear ones including two innocent
          kids is gruesome. We must however be careful lest the
          shocking nature of crime may induce an instinctive reaction           C
          to the dispassionate analysis of the evidence both as to
          offence and the sentence. One circumstance that stands out in
          favour of the respondent for not awarding capital punishment is
          that the respondent did not commit murder of his near and dear
          ones actuated by any lust, sense of vengeance or for gain. The        D
          plight of an economic have-not sometimes becomes so
          tragic that the only escape route is crime. The respondent
          committed murder because in his utter helplessness he
          could not find few chips to help his ailing wife and he saw
          the escape route by putting an end to their lives. This one
          circumstance is of such an overwhelming character that even           E
          though the crime is detestable we would refrain from imposing
          capital punishment. The respondent should accordingly be
          sentenced to suffer imprisonment for life.” (Emphasis supplied
          by us).
       20. In Surendra Pal Shivbalakpal v. State of Gujarat6 this Court         F
considered the socio-economic condition of the appellant therein, namely
that he was a migrant labourer and was living in impecunious
circumstances and therefore it could not be said that he would be a
menace to society in future. The sentence of death was converted into
one of imprisonment for life. This is what this Court said in paragraph 13
                                                                                G
of the Report:
          “…..The appellant was aged 36 years at the time of the
          occurrence and there is no evidence that the appellant had been
          involved in any other criminal case previously and the appellant
6
    (2005) 3 SCC 127                                                            H
308                SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A               was a migrant labourer from U.P. and was living in impecunious
                circumstances and it cannot be said that he would be a menace to
                society in future and no materials are placed before us to draw
                such a conclusion. We do not think that the death penalty was
                warranted in this case…...”
B           21. Similarly, in Sushil Kumar v. State of Punjab7 the poverty of
      the convict was taken into consideration as a factor for sentencing. This
      Court in paragraph 46 of the Report held as follows:
                “Extreme poverty had driven the appellant to commit the
                gruesome murder of three of his very near and dear family
C               members – his wife, minor son and daughter. There is nothing on
                record to show that appellant is a habitual offender. He appears
                to be a peace-loving, law abiding citizen but as he was poverty-
                stricken, he thought in his wisdom to completely eliminate his family
                so that all problems would come to an end. Precisely, this appears
                to be the reason for him to consume some poisonous substances,
D               after committing the offence of murder.” (Emphasis supplied by
                us).
              22. In Mulla v. State of Uttar Pradesh8 this Court specifically
      noted in paragraph 80 of the Report that one of the factors that appears
      to have been left out in judicial decision-making on the issue of sentencing,
E     is the socio-economic factor which is a mitigating factor although it may
      not dilute the guilt of the convict. This is what this Court held:
                “80. Another factor which unfortunately has been left out in
                much judicial decision-making in sentencing is the socio-
                economic factors leading to crime. We at no stage suggest
F               that economic depravity justify moral depravity, but we
                certainly recognise that in the real world, such factors may
                lead a person to crime. The 48th Report of the Law Commission
                also reflected this concern. Therefore, we believe, socio-
                economic factors might not dilute guilt, but they may amount
                to mitigating circumstances. Socio-economic factors lead us
G               to another related mitigating factor i.e. the ability of the guilty to
                reform. It may not be misplaced to note that a criminal who
                commits crimes due to his economic backwardness is most likely
                to reform. This Court on many previous occasions has held that
      7
          (2009) 10 SCC 434
H     8
          (2010) 3 SCC 508
         M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA                             309
                    [MADAN B. LOKUR, J.]

          this ability to reform amounts to a mitigating factor in cases of    A
          death penalty.” (Emphasis supplied by us).
      23. In Kamleshwar Paswan v. Union Territory of Chandigarh9
this Court noted the fact that the convict was a rickshaw puller and a
migrant with psychological and economic pressures. The socio-economic
condition of the convict was therefore taken into consideration for the        B
purposes of sentencing him. It was held in paragraph 8 of the Report as
follows:
          “8. We cannot also ignore the fact that the appellant was a
          rickshaw-puller and a migrant in Chandigarh with the
          attendant psychological and economic pressures that so               C
          often overtake and overwhelm such persons. Village
          Kishangarh is a part of the Union Territory of Chandigarh and at
          a stone’s throw from its elite sectors that house the Governors of
          Punjab and Haryana, the Golf Club, and some of the city’s most
          important and opulent citizens. It goes without saying that most
          such neighbourhoods are often the most unfriendly and indifferent    D
          to each others’ needs. Little wonder his frustrations apparently
          came to the fore leading to the horrendous incident.” (Emphasis
          supplied by us).
       24. Finally, in Mahesh Dhanaji Shinde v. State of Maharashtra10
it was noted that the convicts were living in acute poverty. However,          E
their conduct in jail was heartening inasmuch as they had educated
themselves and has shown that if given a second chance, they could live
a meaningful and constructive life. This Court noted as follows:
          “38. At the same time, all the four accused were young in age at
          the time of commission of the offence i.e. 23-29 years. They         F
          belong to the economically, socially and educationally
          deprived section of the population. They were living in acute
          poverty. It is possible that, being young, they had a yearning for
          quick money and it is these circumstances that had led to the
          commission of the crimes in question. Materials have been laid
          before this Court to show that while in custody all the accused      G
          had enrolled themselves in Yashwantrao Chavan
          Maharashtra Open University and had either completed
          the BA examination or are on the verge of acquiring the
          degree…….. There is no material or information to show any
9
    (2011) 11 SCC 564                                                          H
10
     (2014) 4 SCC 292
310                 SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A               condemnable or reprehensible conduct on the part of any of the
                appellants during their period of custody. All the circumstances
                point to the possibility of the appellant-accused being reformed
                and living a meaningful and constructive life if they are to be
                given a second chance…….” (Emphasis supplied by us).
B           25. There is, therefore, enough case law to suggest that socio-
      economic factors concerning a convict must be taken into consideration
      while taking a decision on whether to award a sentence of death or to
      award a sentence of imprisonment for life.
             26. On the facts of the present case, we find from the decision of
C     the Trial Court that the convict was working as a driver on a casual
      basis. He was desirous of obtaining employment in the Gulf and was
      making all attempts in this direction. He managed to arrange a visa but
      had to pay the agent Rs.62,000/-. Due to severe financial constraints he
      could only arrange Rs.25,000/- for making the initial payment. He
      continued making attempts to raise the amount. His economic condition
D     was so severe that for the purposes of going to Gulf he had to proceed
      from Ernakulam to Mumbai by train and while he could manage to
      purchase the ticket, he was unable to pay for reservation charges. Under
      these circumstances, he had gone to the house of the deceased family
      for getting money or by stealing it or by grabbing it by any other means.
      It is under this financial and economic stress that his presence in the
E
      house of the deceased family was explained. But unfortunately for him
      and the deceased family, he was unable to obtain any funds from them
      and this led to his decision to kill all of them.
                Public opinion or collective conscience of the society
F            27. With regard to the second submission made by learned counsel
      for the appellant, that is, relating to the collective conscience of the society
      or public opinion, we draw attention to an extremely educative discussion
      on the topic in Santosh Kumar Satishbhushan Bariyar v. State of
      Maharashtra11 in paragraphs 80 to 89 of the Report. We do not find the
      necessity of repeating the enlightening discussion. We may only note
G     that in this decision, reference was made with regard to this topic in
      Bachan Singh in paragraph 126 of the Report to the following effect:
                “126. Incidentally, the rejection by the people of the approach,
                adopted by the two learned Judges in Furman12, furnishes proof
                of the fact that judicial opinion does not necessarily reflect the
      11
H          (2009) 6 SCC 498
      12
           Furman v. Georgia, 33 L Ed 2d 346 : 408 US 238 (1972)
     M.A. ANTONY @ ANTAPPAN v. STATE OF KERALA                                 311
                [MADAN B. LOKUR, J.]

      moral attitudes of the people. At the same time, it is a reminder        A
      that Judges should not take upon themselves the
      responsibility of becoming oracles or spokesmen of public
      opinion: Not being representatives of the people, if is often better,
      as a matter of judicial restraint, to leave the function of assessing
      public opinion to the chosen representatives of the people
                                                                               B
      in the legislature concerned.” (Emphasis supplied by us).
       In our opinion therefore, the learned Trial Judge was in error in
coming to the conclusion that the collective conscience of the society
was disturbed and felt repulsed by the gravity of the crime committed by
the appellant. In view of the Constitution Bench decision of this Court in
Bachan Singh and in Bariyar it would be wise if impressions gathered           C
on what is perceived to be public opinion or collective conscience of the
society are eschewed while sentencing a convict found guilty of a grave
or brutal crime. On the facts of the present case, we find that there was
no material whatsoever to come to the conclusion that the gravity of the
crime caused revulsion in the society or that it had materially disturbed      D
normal life in the society. Consequently, the view expressed by the learned
Trial Judge in this regard must be disregarded for the purposes of imposing
an appropriate sentence on the appellant.
      Conclusion
       28. On an overall consideration of the facts of the case from the       E
point of view of the crime and the criminal, we are of opinion that even
though the case may be one of circumstantial evidence, it is now well
settled that that by itself is not enough to convert a sentence of death
into a sentence of imprisonment for life. We have held so in Rajendra
Pralhadrao Wasnik and do not feel the necessity of repeating what
has already been said.                                                         F
       29. We are also of opinion that all the courts including this Court
overlooked consideration of the probability of reform or rehabilitation
and social reintegration of the appellant into society. There is no
meaningful discussion on why, if at all, the appellant could not be reformed
or rehabilitated.                                                              G
      30. The Trial Court was in error proceeding on the basis, while
awarding a sentence of death to the appellant by observing that he was
a hardened criminal. There is no such evidence on material or on record.

                                                                               H
312                SUPREME COURT REPORTS                      [2018] 13 S.C.R.


A            31. The socio-economic condition of the appellant was a significant
      factor that ought to have been taken into consideration by the Trial Court
      as well the High Court while considering the punishment to be given to
      the appellant. While the socio-economic condition of a convict is not a
      factor for disproving his guilt, it is a factor that must be taken into
      consideration for the purposes of awarding an appropriate sentence to a
B
      convict.
             32. We do not think it necessary to consider on the facts of this
      case, the period of incarceration of the appellant as a factor for deciding
      whether or not he should be awarded the death sentence. This is a
      factor that ought to have been placed before the Trial Judge and while
C     we could certainly take this into consideration, we hesitate to do so in
      view of some uncertainty in this regard. In Ramesh v. State of
      Rajasthan13 an opinion was expressed in paragraph 76 of the Report
      that since the appellant therein had been languishing on death row for
      more than six years that would be a mitigating circumstance in his favour.
D     There are a number of cases where convicts have been on death row
      for more than six years and if a standard period was to be adopted,
      perhaps each and every person on death row might have to be given the
      benefit of commutation of death sentence to one of life imprisonment.
      The long delays in courts must, of course, be taken into account, but
      what is needed is a systemic and systematic reform in criminal justice
E     delivery rather than ad hoc or judge-centric decisions.
             33. In view of the above discussion, the death sentence awarded
      to the appellant is converted into a sentence of imprisonment for life.
                34. The petition stands disposed of accordingly.
F
      Divya Pandey                                        Review petition disposed of.




G




      13
H          (2011) 3 SCC 685