Supreme Court of India
STATE OF RAJASTHANversusJAMIL KHAN
- Citation
- 2013 INSC 657
- Decided
- 27 September 2013
- Disposal
- Disposed off
- Bench
- C K PRASAD
Holding
The High Court erred in not applying the 'rarest of rare' test, but due to the nine‑year delay, the death sentence cannot be reinstated; the life imprisonment stands and shall run consecutively with the other sentences, with remission only after the statutory minimum periods.
Summary
The State of Rajasthan appealed against the High Court's commutation of a death sentence to life imprisonment for Jamil Khan, who was convicted of raping and murdering a girl under five years old and also convicted under IPC sections 376 and 201. The Supreme Court held that the High Court had not examined the aggravating and mitigating circumstances nor identified the special reasons required under Section 354(3) CrPC to confirm a death sentence, thereby qualifying the case as "rarest of rare". However, because nine years had elapsed since the death sentence was reduced to life imprisonment, the Court found it unjust to reinstate the death penalty and upheld the life sentence, directing that the sentences under sections 302, 376 and 201 run consecutively with remission only after the statutory minimum periods. The appeal was disposed of, leaving the life imprisonment in force.
Issues considered
- The High Court's failure to consider aggravating and mitigating factors and special reasons under Section 354(3) CrPC while commuting the death sentence.
- Whether the Supreme Court can impose a death sentence after a nine‑year lapse following commutation to life imprisonment.
- The applicability of Sections 432, 433 and 433A of the CrPC on remission, commutation and minimum sentence requirements.
- Whether poverty can be treated as a mitigating factor in sentencing.
- The appropriate running of multiple sentences (consecutive vs concurrent) for offences under IPC sections 302, 376 and 201.
Legislation cited
- Code of Criminal Procedure, 1973s. 354(3), s. 366, s. 367, s. 368, s. 369, s. 370, s. 371, s. 432, s. 433, s. 433A
- Indian Penal Code, 1860s. 201, s. 302, s. 376, s. 53
Subjects
rapemurderminor childdeath penaltyrarest of rarelife imprisonmentremissioncommutationCrPC Section 432CrPC Section 433CrPC Section 433Aaggravating factorsmitigating factorspoverty as mitigating factorsentencing
Judgment
(2013) 14 S.C.R. 361
STAlE OF RAJASTHAN A
v.
JAMIL KHAN
(Criminal Appeal No. 659 of 2006)
SEPTEMBER 27, 2013
B
[CHANDRAMAULI KR. PRASAD AND
KURIAN JOSEPH, JJ.]
Penal Code, 1860:
c
ss. 302, 376 and 201 - Rape and murder of a minor child
below 5 years - By 19 year old man - Conviction and death
sentence by trial court - High Court confirmed the conviction
but altered the death sentence to life imprisonment - Held:
The crime is of extreme mental perversion, well planned and 0
barbaric - Having regard to the nature of the crime, manner
of commission of offence, and major aggravating factor of
extreme repulsion which has shocked the collective
conscience of the community and the court, and the sole
mitigating factor of his young age, punishment of life E
imprisonment is grossly inadequate - Bul in view of the fact
that nine years have passed since the death sentence was
commuted to life imprisonment, it would not be just and proper
to alter life imprisonment to death sentence - Life sentence
means 'imprisonment till the end of one's biological life' -
However, in view of power of the State ulss. 432 and 433 F
Cr.P.C.; the sentences passed for the offences u!ss. 302, 376
am;/ 201 /PC, are directed to run consecutively, if there is any
remission or commutation - The remission or commutation
would not be before the minimum prescribed period of
sentence for the respective offences - Code of Criminal G
Procedure, 1973 - ss. 432, 433 and 433A - Sentence/
Sentencing - Death sentence.
s. 53 - Amendment of - Suggested - To introduce
361 H
~362 SUPREME COURT REPORTS [2013) 14 S.C.R.
A another category of life imprisonment without remission or
commutation - Code of Criminal Procedure, 1973 - ss.432
and 433.
Sentence/Sentencing:
B Death sentence - 'Rarest of rare' category test - Held:
The crimes, which shock the collective conscience of the
society by creating extreme revulsion in the minds of the
people, are to be treated as rarest of the rare category.
c Death sentence - 'Mitigating circumstances' -
Consideration of - Held: While considering the mitigating
factors, the poverty or socio-economic, psychic or undeserved
adversities in life, shall be considered as mitigating factors,
only if those factors have a compelling or advancing role to
D play in the commission of the crime or otherwise influencing
the criminal.
Code of Criminal Procedure, 1973:
Chapter XXV/11 - Death reference - Scope of
E consideration - Held: While C<?nsidering death reference, the
High Court is required to find that special reasons are
available in the facts of the case to cofirm the death sentence
- The provisions under Chapter XXV/11 show the seriousness
with which the High Court has to consider the reference - The
F High Court in the present case commuted the death sentence
to life imprisonment without discussing mitigating or
aggravating circumstances.
ss. 432, 433 and 433A - Power of remission and
G commutation - Exercise of - Scope of - Held: If parliament
has mandated a minimum sentence for certain offences, the
State being its delegate, cannot interfere with the same, in
exercise of its power for remission or commutation.
In the present case, a girl below five years of age was
H raped and murdered and thereafter the body was secretly
STATE OF RAJASTHAN v. JAMIL KHAN 363
left in a train packing the same in a sack. Trial court A
convicted the respondent-accused u/ss. 302, 376 and 201
IPC and sentenced him to death.
High Court confirmed the conviction of the accused,
but while considering the death reference turned down
B
the death sentence, holding that the case did not fall in
the 'rarest of rare case' category and awarded life
imprisonment instead. Hence the present appeal by the
State, seeking death sentence for the respondent-
accused.
c
Disposing of the appeal, the Court
HELD: 1. Chapter XXVlll of Cr.PC (containing
Sections 366 to 371) deals with the process of
confirmation of death sentence by the High Court. The 0
provisions lay down the detailed procedure on
confirmation of death sentence. The detailed procedure
would clearly show the seriousness with which the High
Court has to consider a reference for the confirmation of
death sentence. The High Court must refer to the special
E
reasons found by the Sessions Court for inclusion of the
case in the rarest of rare category. It has to be seen that
the trial court has already passed a sentence and what
is required is only confirmation before execution. On the
facts and circumstances of the case, the High Court has
to consider whether the case actually falls under the F
rarest of rare category. In other words, in the process of
consideration of a case for confirmation of death
sentence, the High Court has to see whether there is
presence or absence of special reasons. If on such
consideration, the High Court finds that special reasons G
are available in the facts and circumstances of the case,
the High Court has to confirm the death sentence. In the
absence of such compelling special reasons, the Higt1
Court shall award only imprisonment for life. The High
H
364 SUPREME COURT REPORTS [2013) 14 S.C.R.
A Court, in the present case has not discussed any of the
aggravating and mitigating circumstances. There is no
consideration as to whether the case on facts falls under
the rarest of rare category. [Paras 20, 21, 22, 23 and 24]
[384-F-G; 385-A; 386-G 388-C-G; 389-A-C]
B
Kuna/ Majumdar vs. State of Rajasthan (2012) 9 SCC
320: 2012 (8) SCR 706 - relied on.
2.1. Aggravating factors qua the crime and mitigating
factors qua the criminal should be properly balanced so
C as to decide whether an offence of murder would fall
under the rarest of rare category to be visited with the
extreme punishment of death. The Court, under Section
354(3) of Cr.PC, has to give special reasons, in case death
sentence is awarded. The very decision of the Court that
D a case falls under the rarest of rare category would
ordinarily meet the requirement of special reasons under
Section 354(3) of the Cr.PC since inclusion of a case in
that category can be only .on such finding. The injuries
present on the body of the tiny child (deceased) would
E clearly establish the barbaric nature of the commission
of the offence. [Paras 6 arid 7] [374-E, H; 375-A-B]
2.2. The punishment inflicted for grave crimes should
reflect the revulsion felt by the great majority of citizens.
Deterrence, reformation or prevention are not the
F determinative factors. Any murder would cause a shock
to the society but all murders may not cause revulsion
in society. Certain murders shock the collective
conscience of the Court and community. Heinous rape
of minors followed by murder is one sucn instance of a
G crime which shocks and repulses fhe collective
conscience of the community and the Court. Such
crimes arouse extreme revulsion in society. While culling
out the rarest of rare cases on the basis of aggravating
and mitigating factors, such crimes, which shock the
H collective conscience of the society by creating extreme
STATE OF RAJASTHAN v. JAMIL KHAN 365
revulsion in the minds of the people, are to be treated as A
the rarest of rare category. [Paras 13 and 15] [380-G-H;
381-D-F]
2.3 In the present case, the respondent no doubt was
young at the time of the commission of the offence, above B
nineteen years of age. He was a labourer. But while
considering the mitigating factors, poverty has to be
understood in the light of whether it was a factor
influencing the commission of offence. Poverty shall not
be understood and applied as disjunct from the factual
position. In other words, poverty or socio-economic,
c
psychic or undeserved adversities in life shall be
considered as mitigating factors only if those factors have
a compelling or advancing role to(play in the commission
of the crime or otherwise influencing the criminal. Thus,
merely because the offender is a poor person, his poverty C
will not be a mitigating factor. In this case the mitigating
factor of the crime is not poverty. The lust fuelled crime of
rape and murder and that too of a minor child of tender
age has nothing to do with the poverty, socio-economic
backgro1.1nd or other psychic compulsions of th~ criminal. E
[Para 16] [381-H; 382-A-B, E-G]
2.4. In the instant case, there cannot be any doubt
that the crime is of extreme mental perversion. It was a
well-planned crime. The major mitigating factor as far as F
respondent in this case is concerned is that he was
young. However, the fact that the accused is young by
itself is not a major and deciding factor while considering
the mitigating factors. The accused was under the
influence of alcohol at the time of the commission of the
G
offence also is not a mitigating factor. It is not a case
where somebody had forcefully administered intoxicating
drinks or drugs to the respondent and made him commit
the offence. That he had taken alcoholic drinks at around
10.00 a.m. is also an indicator to the premeditation of the
H
366 SUPREME COURT REPORTS [2013] 14 S.C.R.
A crime shortly thereafter. Thus, having regard to the nature
of the crime, the manner in which it was committed and
above all, having regard to the major aggravating factor
of extreme repulsion which has shocked the collective
conscience of the community and the Court, as also the
13 sole mitigating factor of his young age, punishment of life
imprisonment is grossly inadequate. [Paras 17 and 18]
[382-H; 383-A-B, D-F]
Bachan Singh vs. State of Punjab (1980) 2 SCC 684 -
followed.
c
Machhi Singh and Ors. vs. State of Punjab (1983) 3 SCC
470: 1983 (3) SCR 413; Shankar Kisanrao Khade vs. State
of Maharashtra (2013) 5 SCC 546;
0 State of Uttar Pradesh vs. Sattan alias Satyendra and
Ors. (2009) 4 SCC 736: 2009 (3) SCR 643; Mahesh slo Ram
Narain and Ors. vs. State of Madhya Pradesh (1987) 3 SCC
80: 1987 ( 2 ) SCR 71 O; Devender Pal Singh vs. State of NCT
of Delhi and Anr. (2002) 5 sec 234: 2002 (2) SCR 767;
E Ajitsingh Harnamsingh Gujral vs. State of Maharashtra (2011)
14 SCC 401: 2011 (13) SCR 1000; Dhananjoy Chatterjee
vs. State of WB. (1994) 2 sec 220: 1994 (1) SCR 37; Jai
Kumar vs. State of M.P. (1999) 5 SCC 1: 1999 (3) SCR 426;
Shivu and Anr. vs. Registrar General, High Court of Karnataka
and Another (2007) 4 SCC 713: 2007 (2) SCR 555; Vikram
F Singh and Ors. vs. State of Punjab (2010) 3 SCC 56: 2010
(2) SCR 22; Atbir vs. Government Of NCT of Delhi (2010) 9
SCC 1: 2010 (9) SCR 993; Mohd. Ajmal Amir Kasab alias
Abu Mujahid vs. State of Maharashtra (2012) 9 SCC 1 :2012
(8) SCR 295; State of U.P. vs. Satish (2005) 3 SCC 114: 2005
G (2) SCR 1132; Bantu vs. State of Uttar Pradesh (2008) 11
SCC 113: 2008 (11) SCR 184; Shivaji alias Dadya Shankar
A/hat vs. State of Maharashtra (2008) 15 SCC 269: 2008 (13)
SCR 81; Mohd. Mannan alias Abdul Mannan vs. State of
Bihar (2011) 5 SCC 317: 2011 (5) SCR 518; Rajendra
H Pralhadrao Wasnik vs. State of Maharashtra (2012) 4 SCC
STATE OF RAJASTHAN v. JAMIL KHAN 367
37: 2012 (2) SCR 225 - relied on. A
Sunil Damodar Gaikwad vs. State of Maharashtra JT
(2013) SC 310 - clarified.
Kamta Tiwari vs. State of Madhya Pradesh (1996) 6 SCC
250: 1996 (5) Suppl. SCR 507 - referred to. B
3. In the facts of the present case, nine years have
passed after substitution of death sentence of the
accused to life imprisonment. Therefore, it would not be
just and proper to alter the sentence from life C
imprisonment to death at this stage. In future, in order to
avoid such contingencies, cases where enhancement of
life sentence to death is sought, should be given due
priority. [Paras 25 and 29) [389-D; 391-F-G]
D
Triveniben vs. State of Gujarat (1989) 1 SCC 678: 1989
(1) SCR 509 - followed.
Mahendra Nath Das vs. Union of India and Ors. (2013)
6 SCC 253; State of Madhya Pradesh vs. Vishweshwar Kol
(2011) 11 sec 472: 2011 (1) SCR 790 - relied on. E
4.1. Imprisonment for life is till the end of the
biological life of the person. However, this Court has
been, for quite some time, conscious of the liberal
approach and sometimes discriminatory too, taken by F
the States in exercise of their power under Sections 432
and 433 of Cr.PC in remitting or commuting sentences.
That led to the amendment in Cr.PC introducing Section
433A by Act 45 of 1978. Under Section 433A of Cr.PC, a
sentence of imprisonment for life is imposed for an G
offence for which death is one of the punishments or
where a death sentence is commuted to life under
Section 433, he shall not be released unless he has
served fourteen years of imprisonment. It appears that the
provision has been generally understood to mean that life
sentence would only be fourteen years of incarceration. H
:368 SUPREME COURT REPORTS [2013} 14 S.C.R.
A 'Taking judicial notice of such a trend, this Court has, in
cases where imposition of death sentence would be too
harsh and imprisonment for life (the way it is understood
as above) too inadequate, in several cases, has adopted
different methods to ensure that the minimum term of life
B imprisonment ranges from at least twenty years to the
end of natural life. [Para 31] [392-0-G; 393-A]
Gopal Vinayak Godse vs. The State of Maharashtra and
Ors. AIR 1961 SC 600: 1961 SCR 440; Jagmohan Singh vs.
C State of U.P. (1973) 1 SCC 20: 1973 (2) SCR 541 - followed.
Shri Bhagwan vs. State of Rajasthan (2001) 6 SCC 296:
2001 (3) SCR 656; Prakash Dhawa/ Khairnar (Patil) vs. State
of Maharashtra (2002) 2 SCC 35: 2001 (5) Suppl. SCR 612;
Ram Anup Singh and Ors. vs. State of Bihar (2002) 6 SCC
D 686; Dilip Premnarayan Tiwari and Anr. vs. State of
Maharashtra (2010) 1 SCC 775: 2009 (16) SCR 322; Neel
Kumar alias Anil Kumar vs. State of Haryana (2012) 5 SCC
766: 2012 (5) SCR 696; Swamy Shraddananda (2) alias
Murali Manohar Mishra vs. State of Karnataka (2008) 13 SCC
E 767: 2008 (11) SCR 93; Ranjit Singh alias Roda vs. Union
Territory of Chandigarh (1984) 1 SCC 31 - relied on.
4.2. It will do well in case a proper amendment under
Section 53 of IPC is provided, introducing one more
category of punishment - life imprisonment without
F commutation or remission. Dr. Justice V. S. Malimath in
the Report on "Committee of Reforms of Criminal Justice
System", submitted in 2003, had made such a suggestion
but so far no serious steps have been taken in that
regard. There could be a provision for imprisonment till
G death without remission or commutation. [Para 32] [393-
. F; 394-A-B)
4.3. In the present case, the respondent has been
awarded life imprisonment under Section 302 of IPC.
H Under Section 376 of IPC also he has been awarded life
STATE OF RAJASTHAN v. JAMIL KHAN 369
imprisonment. The third substantive sentence is under A
Section 201 of IPC. All these sentences are ordered to run
concurrently. The sentence of life imprisonment is till the
end of one's biological life. However, in view of the power
of the State under Sections 432 and 433 of Cr.PC, in the
present case, the sentences shall run consecutively, in B
case there is remission or commutation. It is further
clarified that the remission or commutation, if considered
in the case of the respondent, shall be granted only after
the mandatory period of fourteen years in the case of
offence under Section 302 of IPC. [Para 33] [394-8-D] c
4.4. Section 433A of the Cr.PC has imposed a
restriction with regard to the period of remission or
commutation. It is specifically provided that when a
sentence of imprisonment of life, where death is also one
of the punishments provided by law, is remitted or D
commuted, such person shall not be released unless he
has served at least fourteen years of imprisonment. In the
case of the respondent, second life imprisonment is
under Section 376 of IPC. A minimum sentence under
Section 376 of IPC is $even years. Death is not an E
alternate punishment. However, the sentence may even
be for life or for a term which may extend to ten years. Of
the three options thus available, in view of the brutal rape
of a minor girl child, the Sessions Court has chosen to
impose the extreme punishment of life imprisonment to F
the respondent. [Para 34] [394-E-G]
4.5. Punishment has a penological purpose.
Reformation, retribution, prevention, deterrence are some
of the major factors in that regard. Parliament is the
collective conscience of the people. If it has mandated a G
minimum sentence for certain offences, the Government
being its delegate, cannot interfere with the same in
exercise of their power for remission or commutation.
Neither Section 432 nor Section 433 of Cr.PC hence
H
370 SUPREME COURT REPORTS (2013] 14 S.C.R.
A contains a non-obstante provision. Therefore, the
minimum sentence provided for any offence cannot be
and shall not be remitted or commuted by the
Government in exercise of their power under Section 432
or 433 of the Cr.PC. Wherever the Penal Code or such
B penal statutes have provided for a minimum sentence for
any offence, to that extent, the power of remission or
commutation has to be read as restricted; otherwise the
whole purpose of punishment will be defeated and it will
be a mockery on sentencing. [Para 35] [394-H; 395-A-C)
c 4.6. In the event of State invoking its powers under
Section 432 or 433 of Cr.PC, the sentence under Section
376 of IPC shall not be remitted or commuted before
seven years of imprisonment. In other words, in that
eventuality, it shall be ensured that the respondent will
D first serve the term of life imprisonment under Section 302
of IPC. In case there is any remission after fourteen years,
then imprisonment for a minimum period of seven years
under Section 376 of IPC shall follow and thereafter three
years of rigorous imp~isonment under Section 201 of IPC.
E [Para 36) [395-D-F] .
Case Law Reference:
1996 (5) Suppl. SCR 507 referred to Para 2
(1980) 2 sec 684 relied on Para 7
F
1983 (3) SCR 413 relied on Para 8
(2013) 5 sec 546 relied on Para 9
2009 (3) SCR 643 relied on Para 10
G 1987 (2) SCR 710 relied on Para 11
2002 (2) SCR 767 relied on Para 12
2011 (13) SCR 1000 relied on Para 14
H JT (2013) SC 310 clarified Para 17
STATE OF RAJASTHAN v. JAMIL KHAN 371
1994 (1) SCR 37 relied on Para 17 A
1999 (3) SCR 426 relied on Para 17
2007 (2) SCR 555 relied on Para 17
2010 (2) SCR 22 relied on Para 17
B
2010 (9) SCR 993 relied on Para 17
2012 (8) SCR 295 relied on Para 17
2005 (2) SCR 1132 relied on Para 19
c
2008 (11) SCR 184 relied on Para 19
2008 (13) SCR 81 relied on Para 19
2011 (5) SCR 518 relied on Para 19
2012 (2) SCR 225 relied on Para 19 D
2012 (8) SCR 706 relied on Para 23
1989 (1) SCR 509 followed Para 26
(2013) 6 sec 253 relied on Para 27 E
2011 (1) SCR 790 relied on Para 28
1961 SCR 440 followed Para 31
1973 (2) SCR 541 relied on Para 31
F
2001 (3) SCR 656 relied on Para 31
2001 (5) Suppl. SCR 612 relied on Para 31
(2002) 6 sec 686 relied on Para 31
G
2009 (16) SCR 322 relied on Para 31
2012 (5) SCR 696 relied on Para 31
2008 (11) SCR 93 relied on Para 31
(1984) 1 sec 31 relied on Para 31 H
:372 SUPREME COURT REPORTS [2013] 14 S.C.R.
A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 659 of 2006.
From the Judgment & Order dated 9.11.2004 of the High
Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal
Murder Reference No. 1 of 2004 and D.B. Criminal Jail Appeal
8
No. 425 of 2004.
Dr. Manish Singhvi, AAG, Amit Lubhaya, lrshad Ahmad for
the Appellant.
c Nidhi for the Respondent.
The Judgment of the Court was delivered by
KURIAN, J. 1. Alf murders shock the community; but
certain murders shock the conscience of the Court and the
[) community. The distinguishing aspect of the latter category is
that there is shock coupled with extreme revulsion. What should
be the penological approach in that category is one question
arising for consideration in this case. What is the scope of
consideration of Death Reference by the High Court under
E Chapter XX:Vlll of the Code of Criminal Procedur~. 1973
(hereinafter referred to as 'Cr.PC'), is the other question.
Whether there is any restriction on the exercise of power under
Section 432 Cr.PC for remission and Section 433 Cr.PC for
commutation in cases of minimum sentence is the third main
F issue.
2. On 23.12.2002, Pooja; a tiny girl below five years of age
was brutally raped and thereafter murdered by the respondent.
He packed the dead body in a sack and further in a bag and
G secretly left it in a train. By Judgment dated 15.04.2004, the
Sessions Court, having regard to the overwhelming evidence,
convicted the respondent under Section 302 of the Indian Penal
Code (45 of 1860) (hereinafter referred to as 'IPC') and
sentenced him to death. He was also found guilty under Section
376 of IPC and was sentenced to imprisonment for life with a
H fine of Rs.2,000/-. Under Section 201 of IPC, he was convicted
STATE OF RAJASTHAN v. JAMIL KHAN 373
[KURIAN, J.]
and sentenced to rigorous imprisonment for three years and a A
fine of Rs.500/-. There was default clause as well. The
$essions Court mainly relied on the decision of this Court in
Kamta Tiwari vs. State of Madhya Pradesh. 1 In that case, a
seven year old child was raped, murdered and the body was
thrown into a well. This Court awarded death sentence. In the B
instant case, the Death Reference was considered by the High
Court of Rajasthan along with the Appeal leading to the
impugned Judgment dated 09.11.2004.
The case law on sentencing has been extensively referred
to by the High Court. But without reference to the aggravating C
or mitigating circumstances or to the special reasons, the High
Court held that the case does not fall in the category of rarest
of rare cases warranting death sentence. Thus, the High Court
declined to confirm the death sentence and awarded life
imprisonment under Section 302 of IPC. The conviction and D
sentence under Sections 376 and 201 of IPC was maintained.
3. The State has come in appeal contending that it is a fit
case where punishment of death should be awarded to the
respondent. There is no appeal by the respondent challenging E
the conviction and sentence as confirmed by the High Court
under Sections 302, 376 and 201 of IPC.
4. Having regard to the above background, it is not
necessary to extensively refer to the factual matrix, except for
the relevant aspects. However, to understand the nature of the
F
crime, we shall refer to the injuries noticed by the medical board
in the post mortem:
"Ext. genital part blood stained and vaginal bleeding
present, vaginal tear (2nd degree) extend upto anal office G
postrly, hymen rupture, cervix admit one finger loose,
vaginal smear is taken, send for FSL & slide is prepared
from vaginal secretion, send for FSL.
.1. (1996) a sec 2so. H
374 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 1. Ligature mark 1cm x 0.5cm deep is present
around the whole neck below the thyroid cartilage,
base is brownish Red dry parchment lobe
appearance on cut sectioned the sub cut tissue
beneath the ligature mark is ecchymosed;
El
2. Abrasion- 3cm x 0.2cm in size three in number
parallel to each other, vertical position mid of the
neck antrly below the ligature mark;
3. Ligature mark 1cm breadth is present on antero
c lateral and post part of middle of both leg, this mark
is post mortem in nature.
Injury No. 1 & 2 ante mortem in nature."
5. In the opinion of the Medical Board, asphyxia due to
0 strangulation was the cause of death.
6. The injuries present on the body of the tiny child would
clearly establish the barbaric nature of the commission of the
offence. The respondent had some previous acquaintance with
E the child when he used to visit his parent~ who stayed in the
neigbourhood. It has come in evidence that the respondent had
planned the crime. On the fateful day, he had come to the place,
drunk, carrying with him a sack and a blue bag. PW2, who
knows the accused, had seen him proceeding towards his
F house carrying a white coloured katta (sack) on his shoulder
and a blue coloured bag in his hands. According to PW3, the
accused had gone to his shop, bought peanuts and madhu
gutka. He lured the child by offering peanuts and took her to
his parents' house. PW3 had seen the accused carrying the
G loaded bag on his shoulder. It is not necessary to discuss the
other evidence available from the recovered articles which all
have conclusively established that it was the respondent who
committed the offence.
7. Aggravating factors qua the crime and mitigating factors
H qua the criminal should be properly balanced so as to decide
STATE OF RAJASTHAN v. JAMIL KHAN 375
[KURIAN, J.]
whether an offence of murder would fall under the rarest of rare A
category to be visited with the extreme punishment of death.
The Court, under Section 354(3) of Cr.PC, has to give special
reasons, in case death sentence is awarded. The very decision
of the Court that a case falls under the rarest of rare category
would ordinarily meet the requirement of special reasons under B
Section 354(3) of the Cr.PC since inclusion of a case in that
category can be only on such finding. As held by the
Constitution Bench of this Court in Bachan Singh vs. State of
Punjab 2 , the finding would depend on facts and circumstances
of each case. To quote: c
"201 .... As we read Sections 354(3) and 235(2) and other
related provisions of the Code of 1973, it is quite clear to
us that for making the choice of punishment or for
ascertaining the existence or absence of "special reasons"
in that context, the court must pay due regard both to the D
crime and the criminal. What is the relative weight to be
given to the aggravating and mitigating factors. depends
on the facts and circumstances of the particular case. More
often than not, these two aspects are so intertwined that it
is difficult to give a separat~ treatment to each of them. E
This is so because "style is the man". In many cases. the
extremely cruel or beastly manner of the commission of
murder is itself a demonstrated index of the depraved
character of the perpetrator. That is why, it is not desirable
to consider the circumstances of the crime and the F
circumstances of the criminal in two separa~e watertight
compartments. In a sense. to kill is to be cruel and.
therefore all murders are cruel. But such cruelty may vary
in its degree of culpabilitv. And it is only when the culpabilitv
assumes the proportion of extreme depravitv that "special G
reasons" can legitimately be said to exist."
(Emphasis supplied)
2. (1980) 2 sec 684. H
376 SUPREME COURT REPORTS [2013] 14 S.C.R.
A 8. In Machhi Singh and Others vs. State of Punjab 3 , a
three-Judge Bench of this Court has made an attempt to cull
out certain aggravating and mitigating circumstances and it has
been held that in case imprisonment for life is inadequate in
view of the peculiar aspects of the crime, then alone the
B sentence of death should be awarded. To quote:
"38. )()()( )()()( )()()(
(i) The extreme penalty of death need not be inflicted
except in gravest cases of extreme culpability.
c
(ii) Before opting for the death penalty the
circumstances of the 'offender' also require to be
taken into consideration along with the
circumstances of the 'crime'.
D (iii) Life imprisonment is the rule and death sentence
is an exception. In other words death sentence must
be imposed only when life imprisonment appears
to be an altogether inadequate punishment having
regard to the relevant circumstances of the crime,
E and provided, and only provided, the option to
impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances.
F
(iv) A balance-sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck
G between the aggravating and the mitigating
circumstances before the option is exercised.
39. In order to apply these guidelines inter alia the following
questions may be asked and answered:
H 3. (1983) 3 sec 470.
STATE OF RAJASTHAN v. JAMIL KHAN 377
(KURIAN, J.]
(a) Is there something uncommon about the crime A·
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 no alternative but to impose death sentence even
after according maximum weightage to the
B
mitigating circumstances which speak in favour of
the offender?
40. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition and C
taking into account the answers to the questions posed
hereinabove, the circumstances of the case are such that
death sentence is warranted, the court would proteed to
do so."
D
(Emphasis supplied)
9. In Shankar Kisanrao Khade vs. State of Maharashtra4 ,
referring to the recent decisions (of about fifteen years), this
Court has summarized the mitigating factors and aggravating
factors. Young age of the accused, the possibility of reforming · E
and rehabilitating the accused, the accused having no prior
criminal record, the accused ·not likely to be a menace or threat
or danger to society or the community, the accused having
been acquitted by one of the courts, the crime not being
premeditated, the case being of circumstantial evidence, etc., F
are some of the mitigating factors indjcated therein. The cruel,
diabolic, inhuman, depraved and gruesome nature of the crime,
the crime result in public abhorrence, shocks the judicial
conscience or the conscience ofsociety or the community, the
reform or rehabilitation of the convict is not likely or that he G
would be a menace to society, the crime was either unprovoked
or that it was premeditated, etc., are some of the aggravating
factors indicated in the said decision.
4. (2013) s sec 546 H
378 SUPREME COURT REPORTS (2013] 14 S.C.R.
A 10. In State of Uttar Pradesh vs. Sattan alias Satyendra
and Others 5 , this Court had an occasion to consider the
penological purpose of sentencing. To quote:
"30. "21. '9. The law regulates social interests, arbitrates
conflicting claims and demands. Security of persons and
El property of the people is an essential function of the State.
It could be achieved through instrumentality of criminal law.
Undoubtedly, there is a cross-cultural conflict where living
law must find answer to the new challenges and the courts
are required to mould the sentencing system to meet the
c challenges. The contagion of lawlessness would undermine
social order and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate
sentence. Therefore, law as a cornerstone of the edifice
D of "order" should meet the challenges confronting the
society ....
10. Therefore, undue sympathy to impose
inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy ,
E
of law and sbciety could not long endure under sudh
serious threats. It is. therefore. the duty of everv court to
award proper sentence having regard to the nature of the
offence and the manner in which it was executed or
committed etc .... "
F
(Emphasis supplied)
11. This Court did not mince words while discussing the
requirement of adequate punishment in Mahesh s/o Ram
G Narain and Others vs. State of Madhya Pradesh 6 . To quote:
"6 . ... it will be a mockery of justice to permit these
appellants to escape the extreme penalty of law when
5. (2009) 4 sec 736.
H 6. (1987) 3 sec 80.
STATE OF RAJASTHAN v. JAMIL KHAN 379
[KURIAN, J.]
faced with such evidence and such cruel acts. To give the A
lesser punishment for the appellants would be to render
the justicing system of this country suspect. The common
man will lose faith in courts. In such cases. he understands
and appreciates the language of deterrence more than the
reformative jargon ... ." B
(Emphasis supplied)
12. In Devender Pal Singh vs. State of NCT of Delhi and
Another, after referring to the Bachan Singh and Machhi
Singh cases (supra), this Court held that when the collective C
conscience of the community is so shocked, it will expect the
judiciary to inflict death penalty. To quote:
"58. From Bachan Singh v. State of Punjab and Machhi
Singh and Others v. State of Punjab, the principle culled o
out is that when the collective conscience of the community
is so shocked. that it will expect the holders of the judicial
power center to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of
retaining death penalty, the same can be awarded. It was E
observed:
The community may entertain such sentiment in the
following circumstances:
(1) When the murder is committed in an extremely F
brutal, grotesque, diabolical. revolting, or dastardly
manner so as to arouse intense and extreme
indignation of the community.
(2) When the murder is committed for a motive G
which evinces total depravity and meanness; e.g.
murder by hired assassin for money or reward; or
cold-blooded murder for gains of a person vis-a-
vis whom the murderer is in a dominating position
7. (2002) s sec 234. H
380 SUPREME COURT REPORTS [2013) 14 S.C.R.
A or in a position of trust; or murder is committed in
the course of betrayal of the motherland.
(3) When murder of a member o,f a Scheduled
Caste or minority community etc. is committed not
for personal reasons but in circumstances which
B
arouse social wrath; or in cases of 'bride burning'
or 'dowry deaths' or when murder is committed in
order' to remarry for the sake of extracting dowry
once again or to marry another woman on account
of infatuation.
c
(4) When the crime is enormous in proportion. For
instance when multiple murders, say of all or almost
all the members of a family or a large number of
persons of a particular caste, community, or locality,
D are committed.
(5) When the victim of murder is an innocent child.
or a helpless woman or old or infirm person or a
person vis-a-vis whom the murderer is in a
dominating position, or a public figure generally
E
loved and respected by the community.
If upon taking an overall global view of all the
circumstances in the light of the aforesaid propositions and
taking into account the answers to the questions posed by
F way of the test for the rarest of rare cases, the
circumstances of the case are such that death sentence
is warranted, the court would proceed to do so".
(Emphasis supplied)
G 13. According to Lord Denning, the punishment inflicted
for grave crimes should reflect the revulsion felt by the great
majority of citizens. To him, deterrence, reformation or
prevention are not the determinative factors. His statement to
the Royal Commission on Capital Punishment made in 1950
H reads:
STATE OF RAJASTHAN v. JAMIL KHAN 381
[KURIAN, J.]
"Punishment is the way in which society expresses its A
denunciation of wrong doing; and. in order to maintain
respect for the law. it is essential that the punishment
inflicted for grave crimes should adequately reflect the
revulsion felt by the great majority of citizens for them. It is
a mistake to consider the objects of punishments as being B
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
wrong doer deserves it. irrespective of whether it is a
deterrent or not." c
(Emphasis supplied)
14. As held by this Court in Ajitsingh Harnamsingh Gujral
vs. State of Maharashtra, 8 a distinction has to be drawn
between ordinary murders and murders which are gruesome, D
ghastly or horrendous. In such cases,
"93 .... While life sentence should be given in the former,
the latter belongs to the category of the rarest of rare
cases, and hence death sentence should be given .... " E
15. Any murder would cause a shock to the society but all
murders may not cause revulsion in society. Certain murders
shock the collective conscience of the Court and community.
Heinous rape of minors followed by murder is one such
instance of a crime which shocks and repulses the collective F
conscience of the community and the Court. Such ~rimes
arouse extreme revulsion in society. While culling out the rarest
of rare cases on the basis of aggravating and mitigating
factors, we are of the view that such crimes, which shock the
collective conscience of the society by creating extreme G
revulsion irr the minds of the people, are to be treated as the
rarest of rare category.
16. Although the crime in the present case is gruesome
a. (2011) 14 sec 401. H
382 SUPREME COURT REPORTS (2013] 14 S.C.R.
A and renders a loathsome shock to the community, we are bound
by the ratio in Bachan Singh's case (supra) which requires the
Court to consider the mitigating factors qua the criminal. In the
instant case, the respondent no doubt was young at the time
of the commission of the offence, above nineteen years of age.
B He was a labourer. But while considering the mitigating factors,
poverty has to be understood in light of whether it was a factor
influencing the commission of offence. In a recent decision by
coordinate Bench of this Court, authored by one of us (Kurian,
J.) in Sunil Damodar Gaikwad vs. State of Maharashtra, 9
c decided on 10.09.2013, in Criminal Appeal Nos. 165-166 of
2011, it has been held that:
"Poverty, socio-economic, psychic compulsions,
undeserved adversities in life are thus some of the
mitigating factors to be considered, in addition to those
D indicated in Bachan Singh and Machhi Singh cases."
That was a case where a poor tailor finding it difficult to
maintain his family of wife and three children, one of whom also
required constant treatment, decided to wipe out the entire
E family. Poverty shall not be understo9d and applied as disjunct
. from the factual position. In other words, poverty or socio-
economic, psychic or undeserved adversities in life shall be
considered as mitigating factors only if those factors have a
compelling or advancing role to play in the commission of the
F crime or otherwise influencing the criminal. Thus, merely
because the offender is a poor person, his poverty will not be
a mitigating factor. In this case the mitigating factor of the crime
is not poverty. The lust fuelled crime of rape and murder and
that too of a minor child of tender age has nothing to do with
G the poverty, socio-economic background or other psychic
compulsions of the criminal. The decision in Sunil Damodar
Gaikwad's case (supra) will stand clarified to the above extent.
17. In the instant case, there cannot be any doubt that the
H 9. JT (2013) SC 310
STATE OF RAJASTHAN v. JAMIL KHAN 383
[KURIAN, J.]
crime is of extreme mental perversion. It was a well-planned A
crime as can be seen from the discussion at Paragraph 7 ibid.
The major mitigating factor as far as respondent in this case
is concerned is that he was young. However, in Shankar
Kisanrao's case (supra), this Court held that the fact that the
accused is young by itself is not a major and deciding factor B
while considering the mitigating factors. Dhananjoy Chatterjee
vs. State of W B. 10, Jai Kumar vs. State of M.P., 11 Shivu and
Another vs. Registrar General, High Court of Kamataka and
Another, 12 Vikram Singh and Others vs. State of Punjab, 13
Atbir vs. Government Of NCT of Delhi, 14 Mohd. Ajmal Amir c
Kasab alias Abu Mujahid vs. State of Maharashtra, 15 are
some of the cases where this Court, in view of the overwhelming
and aggravating circumstances, declined to consider the
mitigating factor of young age.
18. That the accused was under the influence of alcohol D
at the time of the commission of the offence also is not a
mitigating factor. It is not a case where somebody had forcefully
administered intoxicating drinks or drugs to the respondent and
made him commit the offence. That he had taken alcoholic
drinks at around 10.00 .a.m. is also an indicator to the E
premeditation of the crime shortly thereafter. Thus, having
regard to the nature of the crime, the manner in which it was
committed and above all, having regard to the major
aggravating factor of extreme repulsion which has shocked the
collective conscience of the community and the Court, as also F
the sole mitigating factor of his young age, Vl(e are of the opinion
that punishment of life imprisonment is grossly inadequate.
19. We are also fortified in our view by the following
10. (1994) 2 sec 220: (1994) sec (Cri) 358. G
11. (1999) 5 sec 1: (1999) sec (Cri) 638.
12. c2007) 4 sec 713.
13. c201 o) 3 sec 56.
14. c2010) 9 sec 1 .
15. &012) 9 sec 1. H
384 SUPREME COURT REPORTS [2013] 14 S.C.R.
A decisions of this Court in similar circumstances. In State of UP.
vs. Satish, 16 this Court reversed the acquittal by the High Court
and awarded death sentence. It was case of rape and murder
of a minor girl aged less than six years. Shivu (supra) was a
case of rape and murder of an eighteen year old girl by the
B neighbours. The death sentence on both the accused was
upheld by this Court. Bantu vs. State of Uttar Pradesh 17 was a
case of the accused alluring a five year old child with a balloon,
committing rape and murder. The death sentence was upheld
by this Court. Shivaji alias Dadya Shankar A/hat vs. State of
C Maharashtra 18 was a case of a nine year old child being taken
by a neighbour who promised to help her to collect wood from
the forest, raped and murdered her. This Court upheld the death
sentence. Mohd. Mannan alias Abdul Mannan vs. State of
Bihar, 19 authored by one of us (Prasad, J.), is a case of rape
and murder of a seven year old child. The death sentence
0
awarded by the Sessions Court as confirmed by the High Court
was upheld. Rajendra Pra/hadrao Wasnik vs. State of
Maharashtra 20 is a case of rape and murder of a three year
old girl child. There also, the death sentence awarded by the
Sessions Court as confirmed by the High Court was upheld by
E this Court.
20. Although the High Court in this case referred to several
decisions on sentencing, it is sad to note that there is no
discussion on any of the aggravating and mitigating
F circumstances. There is no consideration as to whether the case
, -on facts falls under the rarest of rare ca\egory.
21. Chapter XX.VIII of Cr.PC (containing Sections 366 to
371) deals with the process of confirmation of death sentence
G
16. (2005) 3 sec 114.
11. (2008) 11 sec 113: (2009) 1 sec (Cri) 353.
18. (2008) 15 sec 269.
19. (2011) 5 sec 311.
H 20. (2012) 4 sec 37: (2012) 2 sec (Cri) 30.
STATE OF RAJASTHAN v. JAMIL KHAN 385
[KURIAN, J.]
by the High Court. For the purpose of ready reference, we shall A
extract the provisions:
"366. Sentence of death to be submitted by Court of
Session for confirmation.-(1) When the Court of Session
passes a sentence of death, the proceedings shall be 8
submitted to the High Court, and the sentence shall not be
executed unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the
convicted person to jail custody under a warrant.
c
367. Power to direct further inquiry to be made or
additional evidence to be taken.-(1) If, when such
proceedings are submitted, the High Court thinks that a
further inquiry should be made into or additional evidence
taken upon, any point bearing upon the guilt or innocence o
of the convicted person, it may make such inquiry or take
such evidence itself, or direct it to be made or taken by
the Court of Session.
(2) Unless the High Court otherwise directs, the
presence, of the convicted person may be dispensed with E
when such inquiry is made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made
or taken by the High Court, the result of such inquiry or
evidence shall be certified to such Court. F
368. Power of High Court to confirm sentence or
annul conviction.-ln any case submitted under section
366, the High Court-
(a) may confirm the sentence, or pass any other sentence G
warranted by law, or
(b) may annul the conviction, and convict the accused of
any offence of which the Court of Session might have
H
386 SUPREME COURT REPORTS [2013) 14 S.C.R.
A convicted him, or order a new trial on the same or an
amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under
B this section until the period allowed for preferring an
appeal has expired, or, if an appeal is presented within
such period, until such appeal is disposed of.
369. Confirmation or new sentence to be signed by
c two Judges.-ln every case so submitted, the confirmation
of the sentence, or any new sentence or order passed by
the High Court, shall when such Court consists of two or
more Judges, be made, passed and signed by at least
two of them.
D 370. Procedure in case of difference of opinion.-
Where any such case is heard before a Bench of Judges
and such Judges are equally divided in opinion, the case
shall be decided in the manner provided by section 392.
E 371. Procedure in cases submitted to High Cpurt for
confirmation.-ln cases submitted by the Court of Session
to the High Court for the confirmation of a sentence of
death, the proper officer of the High Court shall, without
delay, after the order of confirmation or other order has
F been made by the High Court, send a copy of the order
under the seal of the High Court and attested with his
official signature, to the' Court of Session."
22. These provisions lay down the detailed procedure on
G confirmation of death sentence. The following are the mandatory
requirements:
(i) Death Reference shall be heard by a Bench of
minimum two Judges. The Chief Justice being the
master of roster is free to constitute a Bench of
H more Judges.
STATE OF RAJASTHAN v. JAMIL KHAN 387
[KURIAN, J.]
(ii) On any point having a bearing on the guilt or A
innocence of the convicted person, for which there
is no clarity, the High Court may,
(a) conduct a further inquiry;
(b) take additional evidence; B
(c) may get the inquiry conducted or additional
evidence taken. by the Sessions Court.
(iii) On the basis also of the inquiry or additional
evidence, if any, the High Court may,
c
(a) confirm the death sentence;
however, in case the convict has filed an
appeal, the same has to be disposed of D
before passing the order of confirmation;
and, no order of confirmation shall be passed
until the period allowed for filing an appeal
has expired.
E
(b) pass any other sentence;
(c) annul conviction;
(d) convict the accused of any offence which the
Court of Sessions would or could have F
convicted him.
(iv) Amend the charges.
(v) Order fresh trial on charges already framed or on G
amended charges.
(vi) May acquit the accused.
(vii) In case the Bench is equally divided in opinion, their
opinions shall be laid before a third Judge of that H
388 SUPREME COURT REPORTS [2013] 14 S.C.R.
A Court and the decision will depend on the opinion
of the third Judge.
(viii) If the third Judge before whom the opinions have
been placed is of opinion that the matter should be
heard by a larger Bench of Judges, the reference
13
has to be heard by a larger Bench, in view of the
requirement under Section ·392 of Cr.PC.
23. The detailed procedure would clearly show the
seriousness with which the High Court has to consider a
C reference for the confirmation of death sentence. In a recent
decision in Kuna/ Majumdar vs. State of Rajasthan 2 1, a
coordinate Bench of this Court has held that it is a special and
onerous duty of the High Court. To quote:
D "18 .... A duty is cast upon the High Court to examine the
nature and the manner in which the offence was
committed, the mens rea if any, of the culprit, the plight of
the victim as noted by the trial court, the diabolic manner
in which the offence was alleged to have been performed,
the ill-effects it had on the victim as well as the society at
E
large, the mindset of the culprit vis-a~vis the public intefest,
the conduct of the convict immediately after the commission
of the offence and thereafter, the past history of the culprit,
the magnitude of the crime and also the consequences it
had on the dependants or the custodians of the victim.
F There should be very wide range of consideration to be
made by the High Court dealing with the reference in ·order
to ensure that the ultimate outcome of the reference would
instill confidence in the minds of peace-loving citiz~ and
also achieve the object of acting as a deterrent for others
G from indulging in such crimes."
24. The High Court must refer to the special reasons found
by the Sessions Court for inclusion of the case in the rarest of
H 21. c2012) g sec 320.
STATE OF RAJASTHAN v. JAMIL KHAN 389
[KURIAN, J.]
rare category. It has to be seen that the Court of Sessions has A
already passed a sentence and what is required is only
confirmation before execution. On the facts and circumstances
of the case, the High Court has to consider whether the case
actually falls under the rarest of rare category. In other words,
in the process of consideration of a case for confirmation of B ·
death sentence, the High Court has to see whether there is
presence or absence of special reasons many of which are
indicated in the decision in Kuna/ Majumdar's case (supra). If
on such consideration, the High Court finds that special
reasons are available in the facts and circumstances of the c
case, the High Court has to confirm the death sentence. In the
absence of such compelling special reasons, the High Court
shall award only imprisonment for life.
25. In the facts of the present case, the offence was
committed in 2002. The accused was convicted and sentenced D
to death by the Sessions Court in April, 2004. In November
2004, the High Court commuted the death sentence to life
imprisonment but maintained the other punishments under
Sections 376 and 201 of IPC of life and three years
respectively. The State moved this Court in Special Leave E
Petition in May 2005. Leave was granted on 08.05.2006. For
one reason or the other, the matter was finally heard only in
September 2013. The question is: Whether this Court would
be justified in imposing the extreme punishment of death at this
point of time? F
26. The Constitution Bench of this Court in Triveniben vs.
State of Gujarat22 and various other cases had occasion to
consider the consequences of inordinate delay in disposal of
mercy petitions under Article 72 or 161 of the Constitution of G
India. It has been held by this Court that when a matter is
pending before this Court, the person always has a ray of hope
and hence, it cannot be said that the delay occasioned in Court
22. (2012) s sec 32. H
390 SUPREME COURT REPORTS [2013] 14 S.C.R.
A would be a ground for commutation of death sentence. To
quote:
"16. Even in this Court although there does not appear to
be a specific rule but normally these matters are given top
priority. Although it was contended that this reference
B
before us - a Bench of five Judges, was listed for hearing
after a long interval of time. We do not know why this
reference could not be listed excepted what is generally
well-known the difficulty of providing a Bench of five Judges
but ordinarily it is expected that even in this Court the
c matters where the capital punishment is involved will be
given top priority and shall be heard of and disposed of
as expeditiously as possible but it could not be doubted
that so long as the matter is pending in any court before
final adjudication even the person who has been
D condemned or who has been sentenced to death has a
ray of hope. It therefore could not be contended that he
suffers that mental torture which a person suffers when he
knows that he is to be hanged but waits for the doomsday.
The delay therefore which could be considered while
E considering the question of commutation of sentence of
death into one of life imprisonment could only be from the
date the judgment by the Apex Court is pronounced i.e.
when the judicial process has come to an end."
F (Emphasis supplied)
27. In a recent decision in Mahendra Nath Das vs. Union
of India and Others, 23 this Court had considered the
consequence of delay of 12 years in deciding a mercy petition
under Article 72 of the Constitution of India and held that it was
G a case of inordinate delay causing mental torment to the
convict, and hence commuted the sentence of death to life
imprisonment.
H 23. (2013) 6 sec 253.
STATE OF RAJASTHAN v. JAMIL KHAN 391
[KURIAN, J.]
28. It is significant to note that all these were cases where A
the persons convicted under Section 302 of IPC and sentenced
for death had been waiting for the decision on the mercy
petitions. The instant case is one where a person whose death
sentence has been substituted to life imprisonment. Apparently
reconciled to his fate, he has been serving his term. Whether, B
at this juncture, it would be just and proper to alter his sentence
to death is the disturbing question. State of Madhya Pradesh
vs. Vishweshwar Kol, 24 authored by one of us (Prasad, J.), was
a case where the Trial Court had convicted the accused and
imposed death penalty and in appeal, the High Court acquitted c
him. It was a case of bride burning. The incident was of October,
2003. The Trial Court convicted the accused under Section 302
of IPC and the sentence of death was passed on 30.04.2004.
The High Court acquitted him on 06.12.2004 and this Court
finding that it is a fit case for awarding death sentence and yet
0
taking note of the course of events referred to above, it was
held that:
"11 .... notwithstanding the horrendous nature of the crime
and that it called for the capital punishment, we find it
difficult to ,reimpose the death sentence on the acc1,1sed E
at this stage."
And the accused consequently was awarded sentence of
life imprisonment.
29. In the case before us, nine years have passed after F
substitution of his death sentence by life imprisonment. We are
reluctantly of the view that it would not be just and proper to alter
the sentence from life imptisonment to death at this stage. In
future, in order to avoid such contingencies, cases where
enhancement of life sentence to death is sought, should be G
given due priority.
30. Section 53 of the IPC provides for the following
punishments:
24. (2011) 11 sec 472. H
392 SUPREME COURT REPORTS [2013) 14 S.C.R.
A "First.- Death;
Secondly.- Imprisonment for life;
xxxxxxxxx
B Fourthly.-lmprisonment, which is of two descriptions,
namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
c
Fifthly.-Forfeiture of property;
Sixthly.-Fine."
31. Imprisonment for life is till the end of the biological life
D of the person, as held by a Constitution Bench of this Court in
Gopal Vinayak Godse vs. The State of Maharashtra and
Others. 25 However, this Court has been, for quite some time,
conscious of the liberal approach and sometimes
discriminatory too, taken by the States in exercise of their
E power under, Sections 432 and 433 of Cr.PC in remitting or
commuting sentences. In Jagmohan Singh vs. State of U.P. 26 ,
this Court had expressed concern about such approach made
by the States in remitting life sentences. That led to the
amendment in Cr.PC introducing Section 433A by Act 45. of
F 1978. Under Section 433A of Cr.PC, a sentence of
imprisonment for life is impos~d for an offence for which death
is one of the punishments or where a death sentence is
commuted to life under Section 433, he shall not be released
unless he has served fourteen years of imprisonment. It appears
G that the provision has been generally understood to mean that
life sentence would only be fourteen years of incarceration.
Taking judicial notice of such a trend, this Court has, in cases
25. AIR 1961 SC 600.
H 26. (1973) 1 sec 20 ..
STATE OF RAJASTHAN v. JAMIL KHAN 393
[KURIAN, J.]
where imposition of death sentence would be too harsh and A
imprisonment for life (the way it is understood as above) too
inadequate, in several cases, has adopted different methods
to ensure that the minimum term of life imprisonment ranges
from at least twenty years to the end of natural life. In Shri
Bhagwan vs. State of Rajasthan27, Prakash Dhawal Khaimar B
(Patil) vs. State of Maharashtra 26 and Ram Anup Singh and
Others vs. State of Bihar, 29 it was 20 years; in Di lip
Premnarayan Tiwari and Another vs. State of Maharashtra, 30
it was 25 years; in Neel Kumar alias Anil Kumar vs. State of
Haryana, 31 it was 30 years; and in Swamy Shraddananda (2) c
alias Murali Manohar Mishra vs. State of Kamataka, 32 it was
till the end of life without remission or commutation. Ranjit Singh
alias Roda vs. Union Territory of Chandigarh 33 is a case where
a person committed a second murder. He was sentenced for
life imprisonment for the first murder. Taking note of the fact that
0
the co-accused was not given death sentence and awarded only
life imprisonment, this Court in the second offence also awarded
only life imprisonment. However, it was made clear that:
"2 .... in case any remission or commutation in respect of
his earlier sentence is granted to him th~ present sentence E
should commence thereafter."
32.However in some cases, the Court had also been
voicing concern about the statutory basis of such orders. We
are of the view that it will do well in case a proper amendment F
under Section 53 of IPC is provided, introducing one more
category of punishment - life imprisonment without commutation
21. c2001) 6 sec 296.
28. c2002) 2 sec 35. G
29. c2002) 6 sec 686.
30. c2010) 1 sec 115.
31. c2012) 5 sec 766.
32. c2008) 13 sec 767.
33. (1984) 1 sec 31. H
394 SUPREME COURT REPORTS (2013) 14 S.C.R.
A or remission. Dr. Justice V. S. Malimath in the Report on
"Committee of Reforms of Criminal Justice System'', submitted
in 2003, had made such a suggestion but so far no serious
steps have been taken in that regard. There could be a
provision for imprisonment till death without remission or
B commutation.
33. In the present case, the respondent has been awarded
life imprisonment under Section 302 of IPC. Under Section 376
of IPC also he has been awarded life imprisonment. The third
substantive sentence is under Section 201 of IPC. All these
C sentences are ordered to run concurrently. The sentence of life
imprisonment is till the end of one's biological life. However, in
view of the power of the State under Sections 432 and 433 of
Cr.PC, in the present case, we are of the view that the
sentences shall run consecutively, in case there is remission
D or commutation. We further make it clear that the remission or
commutation, if considered in the case of the respondent, shall
be granted only after the mandatory period of fourteen years
in the case of offence under Section 302 of IPC.
E 34. Section 433A of the Cr.PC has imposed a restriction
with regard to the period of remission or commutation. It is
specifically provided that when a sentence of imprisonment of
life, where death is also one of the punishments provided by
·1aw, is remitted or commuted, such person shall not be
F released unless he has served at least fourteen years of
imprisonment. In the case of the respondent herein, second life
imprisonment is under Section 376 of IPC. A mininium
sentence under Section 376 of IPC is seven years. Death is
not an alternate punishment. However, the sentence may even
G be for life or for a term which may extend to ten years. Of the
three options thus available, in view of the brutal rape of a minor
girl child, the Sessions Court has chosen to impose the extreme
punishment of life imprisonment to the respondent.
35. Punishment has a penological purpose. Reformation,
H retribution, prevention, deterrence are some of the major
STATE OF RAJASTHAN v. JAMIL KHAN 395
[KURIAN, J.]
factors in that regard. Parliament is the collective conscience A
of the people. If it has mandated a minimum sentence for
certain offences, the Government being its delegate, cannot
interfere with the same in exercise of their power for remission
or commutation. Neither Section 432 nor Section 433 of Cr.PC
hence contains a non-obstante provision. Therefore, the B
minimum sentence provided for any offence cannot be and shall
not be remitted or commuted by the Government in exercise
of their power under Section 432 or 433 of the Cr.PC. Wherever
the Indian Penal Code or such penal statutes have provided
for a minimum sentence for any offence, to that extent, the c
power of remission or commutation has to be read as restricted;
other.Vise the whole purpose of punishment will be defeated
and it will be a mockery on sentencing.
36. Having regard to the facts and circumstances of the
present case, we make it clear that in the event of State -D
invoking its powers under Section 432 or 433 of Cr.PC, the
sentence under Section 376(2) of IPC shall not be remitted or
commuted before ten years of imprisonment. In other words,
in that eventuality, it shall be ensured that the respondent will
first serve the term of life imp(.isonment under Section 302 of E
IPC. In case there is any remission after fourteen years, then
imprisonment for a minimum period of ten years under Section
376(2) of IPC shall follow and thereafter three years of rigorous
imprisonment under Section 201 of IPC. The sentence on fine
and default as awarded by the Sessions Court are maintained F
as sych.
37. The appeal~isposed of as above.
Kalpana K. Tripathy Appeal disposed of.
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