SUNIL DAMODAR GAIKWADversusSTATE OF MAHARASHTRA

                   [2013] 9 S.C.R. 295


              SUNIL DAMODAR GAIKWAD                          A
                             v.
               STATE OF MAHARASHTRA
         (Criminal Appeal Nos. 165-166 of 2011)
                 SEPTEMBER 10, 2013
                                                              B
      [SUDHANSU JYOTI MUKHOPADHAYA AND
              KURIAN JOSEPH, JJ.]

    PENAL CODE, 1860:
                                                              c
     ss. 302 and 307 - Accused causing death of his wife and
2 sons and attempting to cause death of his daughter -
Sentenced to death by counts below u/s. 302 and life
imprisonment u/s. 307 - Held: Apart from drawing a 'balance
sheet' of mitigating and aggravating factors, socio-economic 0
compulsions such as poverty are also factors that are to be
considered by courts while awarding a sentence -- In the
instant case, it has come in evidence that accused suffered
from economic andi psychic compulsions - He had no prior
criminal record -- He had, in fact, intended to wipe out the
whole family including himself on account of abject poverty - E
- The possibility of reforming and rehabilitating him cannot
be ruled out - He is not likely to be menace or threat or
danger to society -- In the facts and circumstances, the case
does not fall under the rarest of rare category so as to wan-ant
a punishment of death -- The 'individually inconclusive and F
cumulatively marginal facts and circumstances' tend towards
awarding lesser sentence of life imprisonment - Sentence u/
s. 302 commuted to life imprisonment which would be till the
end of his biological life - Sentence uls 307 reduced to 7
years RI - In case the sentence of imprisonment for life is G
remitted or commuted to any specified period, the sentence
of imprisonment uls. 307 shall commence thereafter.


                            295                               H
     296      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A          CODE OF CRIMINAL PROCEDURE, 1973:

           s. 354(3) - Awarding of death sentence in a case of
     murder - Special reasons to be recorded - Held: This shows
     the paradign shift to life imprisonment as the rule anti death,
8    as the exception -- Before awarding a sentence of death, in
     view of s. 354(3), court has to first examine whether it is a case
     fit for awarding of life sentence and if not and only then, death
     sentence can be awarded - Code of Criminal Procedure, 1898
     - s. 367(5).

C          Judicial comity - Held: Judicial comity is an integral part
      of judicial discipline and judicial discipline the cornerstone of
     judicial integrity -- When there are binding decisions, judicial
      comity expects and requires the same to be followed.

.o     The appellant was prosecuted for causing the death
  of his wife and two sons, and attempting to kill his
  daughter whom he had caused serious stab injuries. After
  the occurrence the appellant was stated to have gone to
  the police station and reported that one of his sons had
E been suffering from Asthama, which required C(lnstant
  medication; that his income was hardly sufficient to
  maintain his family because of which he was under stress
  and, therefore, he decided to finish the entire family
  including himself. In the process he killed his wife and
F two sons with a pair of scissors and inflicted stab injuries
  to· her daughter (PW 1) and also pressed her mouth with
  pillow but she did not succumb to death; and leaving the
  child in that condition and bolting the door from outside
  he reached the police station. This was corroborated by
  PW 4 in her deposition. However, the appellant, in his
G statement uls. 313 Cr.P.C., simply denied everything and
  did not lead any evidence. The trial court convicted the
  appellant ulss 302 and 307 IPC and sentenced him to
  death under the first count and life imprisonment under
  the second one.
H
     .
      SUNIL DAMODAR GAIKWAD v. STATE OF                297
                MAHARASHTRA

   In the instant appeal, the sole issue for consideration    A
was that of commutation of the death sentence.

    Allowing the appeals in part, the Court

     HELD: 1.1. Before awarding a sentence of death, in
view of s. 354(3), Cr.PC, the court has to first examine      B
whether it is a case fit for awarding of life sentence and
if not and only then, the death sentence can be awarded.
The rule is life imprisonment for murder, and death is the
exception for which special reasons are to be stated. The
death sentence has been relegated to the 'rarest of rare'     C
cases after Constitution Bench decision in Bachan
Singh. The most significant aspect of the decision :n that
case is the mandate laid down by the Constitution Bench
that courts must not only look at the crime but also the
offender and give due consideration to the                    D
circumstances of the offender at the time of commission
of the crime. In Machhi Singh and Shankar Kisanrao
Khade, emphasis was laid on drawing a 'balance sheet'
of mitigating and aggravating factors. [Para 15, 16, 17 and
19] [307-F-H; 308-A-B; 309-G-H; 310-A; 311-G]                 E

     Bachan Singh vs. State of Punjab (1980) 2 SCC 684 -
followed. :,

     Machhi Singh and Others vs. State of Punjab 1983
(3) SCR 413 = (1983) 3 SCC 470; Shankar Kisanrao Khade        F
vs. State of Maharashtra (2013) 5 SCC 546; Dalbir Singh vs.
                                    =
State of Punjab 1979 (3) SCR 1059 AIR 1979 SC 1384 -
relied on.

    1.2. Socio-economic compulsions such as poverty are       G
also factors that are to be considered by courts while
awarding a sentence, and in appropriate cases, judicial
commutation is permissible. [Para 21 and 24] [315-D; 316-H;
317-A]

    Ediga Anamma vs. State of Andhra Pradesh 1974             H
    298    SUPREME COURT REPORTS               [2013) 9 S.C.R..


A   (3) SCR 329 = (1974) 4 SCC 443; Sushi/ Kumar vs. State of
    Punjab (2009) 10 SCC 434 - relied on.

       1.3. When there are binding decisions, judicial comity
  expects and requires the same to be followed. Judicial
  comity is an integral part of judicial discipline and judicial
8
  discipline the cornerstone of judicial integrity. No doubt,
  in case there are newer dimensions not in conflict with
  the ratio of larger bench decisions or where there is
  anything to be added to and explained, it is always
  permissible to introduce the same. Poverty, socio-
C economic, psychic compulsions, undeserved adversities
  in life are thus some of the mitigating factors to be
  considered, iri addition to those indicated in Bachan
  Singh and Machhi Singh. Thus, this Court is bound to
  analyze the facts in the light of the aggravating and
D mitigating factors indicated in the binding decisions
  which have influenced the commission of the crime, the
  criminal, and his circumstances, while considering the
  sentence. [Para 18) [311-C-F]
E     1.4. In the instant case, it has come in evidence that
  the appellant suffered from economic and psychic
  compulsions. The possibility of reforming and
  rehabilitating the accused cannot be ruled out. He had
  no prior criminal record. On the facts available to the
F Court, it can be safely said that the accused is not likely
  to be menace or threat or danger to society. There is
  nothing to show that he had any previous criminal
  background. He had in fact intended to wipe out the
  whole family including himself on account of abject
  poverty. This aspect of the matter has not been properly
G appreciated by both, the Court of Session and the High
  Court. [Para 25] [317-G-H; 318-A-C]
        1.5. In the facts of the case and the circumstances
  of the appellant at the time of commission of the offence,
H it is clear that the case does not fall under the rarest of
      SUNIL DAMODAR GAIKWAD v. STATE OF                   299
                MAHARASHTRA
  rare category of cases so as to warrant a punishment of A
  death. The 'individually inconclusive and cumulatively
  marginal facts and circumstances' tend towards awarding
· lesser sentence of life imprisonment. Therefore, while
  upholding the conviction of the appellant u/s. 302 and s.
  307 of IPC, the sentence is modified as follows:          B
      (a)   For offence punishable u/s. 302 of IPC, the
            appellant is sentenced to life imprisonment.

      (b)   For offence punishable u/s. 307 of IPC, the
            appellant is sentenced to imprisonment for a          C
            period of seven years.

      Imprisonment for life of a convict is till the end of his
 biological life as held by the Constitution Bench in Gopal
 Vinayak Godse. Howew~r. it is made clear that in case the        D
 sentence of imprisonment for life is remitted or commuted
 to any specified period (in any case, not less than
 fourteen years in view of s. 433A, Cr.P.C.), the sentence
 of imprisonment u/s. 307 shall commence thereafter.
 [Para 26-28] [318-G-H; 319-A-E]
                                                                  E
     Gopal Vinayak Godse vs. The State of Maharashtra and
 Others 1961 SCR 440 =AIR 1961 SC 600 - relied on.

                      Case Law Reference:
     1974 (3) SCR 329          relied on            para 4        F
     1979 (3) SCR 1059         relied on            para 16
     1983 (3) SCR 413          relied on            para 17
     (2013) 5 sec 546          relied on            para 19
                                                                  G
     (2009) 1o sec 434         relied on            para 24
     1961 SCR 440              relied on            para 28
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 Nos. 165-166 of 2011.
                                                                  H
    300      SUPREME COURT REPORTS                   [2013) 9 S.C.R.


A       From the Judgment & Order dated 23.09.201 Oof the High
    Court of Judicature at Bombay in Confirmation Case No. 2 of
    2009 with Criminal Appeal, No. 280 of 2009.

        Ramesh Chandra Mishra, Dr. Meera Agarwal for the
    Appellant.
8
          Sushil Karanjkar, Asha Gopalan Nair for the Respondent.

          The Judgment of the Court was delivered by

C        KURIAN, J.1. Death and if not life, death or life, life and if
    not death, is the swinging progression of the criminal
    jurisprudence in India as far as capital punishment is
    concerned. The Code of Criminal Procedure, 1898, under
    Section 367(5) reads:

D         "If the accused is convicted of an offence punishable with
          death. and the Court sentences him to any punishment
          other than death. the Court shall in its judgment state the
          reason why sentence of death was not passed."

E                                               (Emphasis supplied)

        This provision making death the rule was omitted by Act
    26 of 1955.

       2. There have been extensive discussions and studies on
F abolition of capital punishment during the first decade of our
  Constitution and the Parliament itself, at one stage had desired
  to have the views of the Law Commission of India and,
  accordingly, the Commission submitted a detailed report,
  Report No. 35 on 19.12.1967. A reference to the introduction
G to the 35th Report of the Law Commission will be relevant for
  our discussion. To quote:

          "A resolution wasn1oved in the Lok Sabha on 21st April,
          1962, for the abolition of Capital Punishment. In the course
          of the debate on the resolution, suggestions were made
H
        SUNIL DAMODAR GAIKWAD v. STATE OF                      301
              MAHARASHTRA [KURIAN, J.]

      that a commission or committee should be appointed to            A
      go into the question. However, ultimately, a copy of the
      discussion that had taken place in the House was
      forwarded to the Law Commission that was, at that time,
      seized of the question of examining the Code of Criminal
      Procedure and the Indian Penal Code.                             B

            The Law Commission considered it desirable to
      take up the subject separately from the revision of the
      general criminal law of the country. This was so, because
      of the importance of the subject, the voluminous nature of
      materials that were to be considered, and the large              C
      number of questions of detail that were to be examined.
      The matter had been repeatedly debated in Parliament in
      some form or other, and the Commission, therefore,
      thought its consideration to be somewhat urgent. In other
      countries also, the subject had been evidently treated as        D
      one for separate.and full-fledged study."

     3. It appears that Parliament finally decided to retain capital
punishment in the Indian Penal Code. However, when the new
Code of Criminal Procedure was enacted in the year 1973                E
(hereinafter referred to as 'the Cr.PC'), a paradigm shift was
introduced, making it mandatory for Courts to state special
reasons for awarding death sentence, under Section 354(3),
which reads as follows:

      "When the conviction is for an offence punishable with           F
      death, or, in the alternative, with imprisonment for life or
      imprisonment for a term of years, the judgment shall state
      the reasons for the sentence awarded, and, in the case of
      sentence of death, the special reasons for such sentence."
                                                                       G
                                             (Emphasis supplied)

    4. In the words of Krishna Iyer J. in Ediga Anamma vs.
State of Andhra Pradesh 1:
1.   (1974) 4 sec 443.                                                 H
    302      SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A          "20. The unmistakable shift in legislative emphasis is that
          life imprisonment for murder is the rule and capital
          sentence the exception to be resorted to for reasons to be
          stated. ...                                           ·

          21. It is obvious that the disturbed conscience of the State
8         on the vexed question of legal threat to life by way of death
          sentence has sought to express itself legislatively, the
          stream of tendency being towards cautious. partial
          abolition and a retreat from total retention."

c                                               (Emphasis supplied)

       5. It is interesting to note that the requirement for reasons
  to be stated for awarding any sentence for a term of years
  found legislative expression in the Cr.PC for the first time in
D 1973. In the case of death sentence, there mu:;t be special
  reasons. That shows the paradigm shift to life imprisonment as
  the rule and death, as the exception.

        6. The above preliminary discussion on death sentence
    has special significance as far as facts of the present case are
E   concerned. The appellant before us faced trial under Section
    302 read with Section 307 of IPC. The Sessions Court
    convicted him under both Sections. Under Section 302, he was
    sentenced to death and under Section 307, to life
    imprisonment. On reference, the High CoL1rt confirmed the
F   death sentence. The appeal filed by the appellant before the
    High Court was dismissed confirming the conviction and
    sentence under Section 307. Thus aggrieved, the present
    appeals.

G        7. In view of the overwhelming evidence, though the
    learned counsel appearing for the appellant was mainly
    canvassing for commuting the death sentence, in order to
    satisfy our conscience, we may refer to the facts, evidence and
    the contentions briefly, on merits as well.

H
      SUNIL DAMODAR GAIKWAD v. STATE OF                       303
            MAHARASHTRA [KURIAN, J.]

     8. The appellant was married to a woman named Sangita.           A
They had three children, one daughter and two sons. They were
staying in two rooms in a house belonging to his maternal aunt.
He was a tailor by profession and employed as such in a cloth
shop. One of his sons, Aakash had been suffering from asthma
which required constant medication. The appellant's income            B
was hardly sufficient to maintain his family and he was under
stress in that regard. On 08.07.2008, it is stated that during the
early hours of the morning while the members of the family were
sleeping, he assaulted his wife Sangita and his two sons with
the separated parts of a pair of sharp scissors and inflicted         c
multiple stab injuries causing their instantaneous death. On his
daughter Gaitri alias Pooja also, he inflicted stab injuries.
However, she somehow could speak and asked why her father,
the appellant was injuring her. The appellant father told her that
the entire family had to go and he would also follow them.
                                                                      0
However, he gave her water to drink. Thereafter, he took her
on his lap and pressed her mouth with a pillow with the intention
of suffocating her, and yet the child did not succumb to death.
He left the child in that condition, bolted the door from outside
and went straight to the police station and reported the incident.
                                                                      E
An FIR was registered. His statement was recorded. In the
meanwhile, the daughter Gaitri got assistance from a neighbour
and was immediately treated at a hospital and thus she
survived. She is the key witness-PW1. The neighbour is the
maternal aunt of the accused and she is PW4.
                                                                      F
     9. The prosecution examined nine witnesses and based
mainly on the version of PW1-Gaitri, the appellant was
convicted under Sections 302 and 307. Gaitri alias Pooja was
clear and consistent during the investigation as well as before
the Sessions Court. In her evidence before the Court, she             G
stated:

     " ... My father, mother and all we children were in the house.
     My father assaulted my mother, my two brothers and me
     with the help of scissor. My two brothers and mother died
                                                                      H
    304       SUPREME COURT REPORTS                   [2013) 9 S.C.R.


A         on the spot. I was assaulted over my chest and abdomen
          and to my both hands. I asked my father as to why he was
          assaulting us although we did nothing. My fattier told me
          that all of us need to go and he would be following us. Then
          my father gave me water to drink. He then took me on his
B         laps and then pressed my mouth with the help of pillow.
          He then went to Police Station. While going out he bolted
          the door from outside. One Sakharbai Sadashiv Sonwane
          was staying in the same house in their neighbourhood. I
          shouted for help. I told her to save us and that we were
c         bleeding. She then opened the door. Then my uncle Anil
          Gaikwad came there and we were taken to Govt. Hospital
          at Gevrai for treatment. From there I was brought to Beed
          in the Civil Hospital by my uncle. Police came to_ me for
          making inquiry in the Hospital. I narrated the whole incident
          to them. The accused in the dock is my father. The
D
          accused was a tailor and he was working in somebody's
          shop owned by one Anil. I can identify the scissor shown
          to me today. (Witness identified Article No. 15 the scissor
          in the Court). I was in the Hospital for about 21 days."

E                                                (Emphasis supplied)

          In cross, she stated thus:

          " ... We are financially poor. My father used to work in the
          shop for whole day and even for late nights during festival
F         season. It is true that sometimes he remained in the shop
          for whole night and return back in the next day. He used
          to earn money by working in the shop for us.... It is not
          true to say that I am not able to tell who killed my mother
          and brothers as I was in sleep. . . . It is not true that I am
G         deposing false that my father assaulted us.... It is not true
          to say that I am deposing against the accused only on the
          say of my uncle and the Police."

                                                 (Emphasis supplied)
H
      SUNIL DAMODAR GAIKWAD v. STATE OF                     305
            MAHARASHTRA [KURIAN, J.]
     10. PW2 is the panch witness. PW3 is the doctor - Dr.          A
Kranti Raut, who performed the autopsy. In the case of all the
three deceased, the doctor has given the opinion that the death
was caused due to hemorrhagic shock with heamothorax on
account of multiple stab injuries to the vital organs. FSL report
has confirmed that the blood on the clothes of the appellant and    8
that of his deceased wife was of the same group. The doctor
has also treated PW1 Gaitri alias Pooja and has referred in
detail to the multiple injuries inflicted upon her. 1t is also
deposed that injury no. 4-which is a stab wound is sufficient to
cause death in the ordinary course of nature if timely treatment    C
is not given. The doctor stated that all the injuries to the
deceased person·s as well as to the injured PW1-Gaitri are
possible by the weapon-Article No. 6, scissors. PW4-
Sakharbai is the aunt of the appellant. She has stated that the
elder son of the appellant was suffering from asthma. She also
                                                                    0
deposed as follows:

     " ... When I was sleeping in my house I got at about 5.30
     a.m. I was washing utensils. I heard a sound from Gaitri
     asking me to open the door and that her father had
     assaulted them. I went near the room and found that the        E
     door was bolted from outside which I opened and went
     inside the room. I saw Sangita, Omkar, Aakash were lying
     in a pool of blood and they were dead. Gaitri had also
     bleeding injuries to her chest, stomach and chin. She told
     me that her father assaulted all of them with a scissor in     F
     that night. I shouted and went to Baban, Anil and called
     them. The said Anil took Gaitri to Hospital. Gaitri is also
     known by name Pooja ... "

                                           (Emphasis supplied)      G

      In cross, she submitted that "the accused was a tailor. It
is true that his financial condition-was poor''.

   11. PW5 is the one who sold the scissors to the appellant.
PW6 is the panch witness to the recovery of weapon of offence       H
    306      SUPREME COURT REPORTS                   [2013) 9 S.C.R.


A and other dress worn by the accused. PW7 is the Police Sub-
  Inspector. According to him, the appellant had told him at
  around 5.30 a.m. that he had committed the murder of his wife
  and two sons and had injured his daughter Gaitri. The
  statement-Exhibit No.29 was recorded by him and appellant
B signed the same. PWB is the Police Inspector who conducted
  the investigation. PW9 is the Police Inspector who prepared
  the inquest and spot panchnama. He collected the blood from
  the spot and the pillow cover soaked in blood. He also made
  the recovery of the scissors as disclosed by the accused.
C Photographs were also taken. We may also refer to the
  statement made by the appellant himself before the police on
  the basis of which the FIR was registered:

          " ... In my family my son Omkar is constantly ill due to
          asthma. For the treatment of his ailment money was
D         required which I had to borrow and hence I had become
          debt ridden. Due to the tension I could not concentrate on
          my work and I had to go on leave frequently .... Since I was
          fed up. I decided to leave the house. my wife and children
          would have died of hunger and ailment. Therefore. I had
E         thought to relieve them myself."

                                                (Emphasis supplied)

    Then he has narrated the manner in which he killed his wife and
    two sons. As far as assault on the daughter is concerned, he
F   stated as follows:

           "... Thereafter I dealt 2-3 blows on chest of my daughter
          due to which she woke up and having seen me dealing
          blows she asked weepingly earnestly "papa why did you
G         do so". At that time I replied "we all have to go. I am also
          coming". By saying so. I gave her water to drink and took
          her head on my lap. In order to kill her I pressed her mouth
          and nose but she was not dying. I waited for some time.
          Due to the incident which had happened I was terrified.
H         Then I kept water near her and left her in injured condition.
      SUNIL DAMODAR GAIKWAD v. STATE OF                      307
            MAHARASHTRA [KURIAN, J.]
    Thereafter I removed my clothes worn by me at the time           A
    of commission of the crime. I wrapped the scissor~ used
    for the crime in a cloth and went to the police station and
    presented myself and informed the incident."

                                           (Emphasis supplied)
                                                                     8
    12. Under Section 313 statement, however, he flatly denied
everything but did not lead any evidence in defence.

      13. The Sessions Court and the High Court have
discussed in detail the conduct of the appellant. The courts have    c
also considered his main contention that he was not involved
in the incident. Both the Courts have found that it was not at all
possible to appreciate his contentions since the normal conduct
of a father in such circumstances would be first to help the child
to obtain treatment either by himself or with the assistance of
                                                                     0
those residing in the neighbouring rooms and nearby. Suffice
it to say that the evidence available on record, some of which
we have referred to above, would establish beyond doubt that
accused alone was involved in the commission of the offences.

     14. We shall, hence, consider the question of sentence.         E
The Sessions Court and the High Court are of the view that the
case falls under the rarest of the rare category and the appellant
did not deserve any mercy.

     15. Before awarding a sentence of death, in view of Section     F
354(3) of the Cr.PC, the court has to first examine whether it
is a case fit for awarding of life sentence and if not and only
then, the death sentence can be awarded. At the risk of
redundancy, we may note that the rule is life imprisonment for
murder, and death is the exception for which special reasons         G
are to be stated.

     16. The death sentence has been relegated to the 'rarest
of rare' cases after the landmark decision of the Constitution

                                                                     H
    308            SUPREME COURT REPORTS                [2013] 9 S.C.R.


A Bench in Bachan Singh vs. State of Punjab 2 • The most
  significant aspect of the decision in Bachan Singh's case
  (supra) is the mandate laid down by the Constitution Bench that
  Courts must not only look at the crime but also the offender and
  give due consideration to the circumstances of the offender at
B the time of commission of the crime. This decision rules the
  field even today and no discussion on the subject of death
  penalty is complete without a reference to Bachan Singh's
  case (supra). To quote:

          "201 .... As we read Sections 354(3) and 235(2) and other
c         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
          crime and the criminal. What is the relative weight to be
D         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 il
          is difficult to give a separate treatment to each of them.
          This is so because 'style is the man'. In many cases. the
E         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
          circumstances of the criminal in two separate watertight
F         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 culpability. And it is only when the culpability
          assumes the proportion of extreme depravity that "special
          reasons" can legitimately be said to exist.
G         )()()(    xxx                                 xxx
           209. There are numerous other circumstances justifying the


H 2.      (1980) 2 sec 684:
      SUNIL DAMODAR GAIKWAD v. STATE OF                        309
            MAHARASHTRA [KURIAN, J.]
     passing of the lighter sentence; as there are countervailing      A
     circumstances of aggravation. "We cannot obviously feed
     into a judicial computer all such situations since they are
     astrological imponderables in an imperfect and undulating
     society." Nonetheless, it cannot be over-emphasized that
     the scope and concept of mitigating factors in the area of        B
     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. Hanging of murderers has never been too
     good for them. Facts and figures, albeit incomplete,              c
     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 on the
     exercise of their sentencing discretion in so grave a matter.     0
     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 concern. directed along the
     highroad of legislative policy outlined in Section 354(3).        E
     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 option is unquestionably foreclosed."             F

                                             (Emphasis supplied)

     17. The three-Judge Bench decision in Machhi Singh and
Others vs. State of Punjab 3 culled out the guidelines indicated G
in Bachan Singh's case (supra), which would be required to·
be applied to the facts of each case while imposing a sentence
of death. Emphasis was laid in the decision in Machhi Singh's
case (supra) on drawing a 'balance sheet' of mitigating and
3.   (1983) 3 sec 470.                                                 H
    310         SUPREME COURT REPORTS                [2013] 9 S.C.R.


A   aggravating factors. To quote:

          "38. )()()( )()()(      )()()(

          (i)     The extreme penalty of death need not be inflicted
                  except in gravest cases of extreme culpability.
8
          (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'.
c         (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
D
                  crime, 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 al! the
                  relevant circumstances.
E
          (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
F                 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:

G         (a)     Is there something uncommon about the crime
                  which renders sentence of imprisonment for life
                  inadequate and'calls for a death sentence?

          (b)     . Are the circumstances of the crime such that there ·
H                   is no alternative but to impose death sentence even
      SUNIL DAMODAR GAIKWAD v. STATE OF                      311
            MAHARASHTRA [KURIAN, J.]

             after according maximum weightage to the                A
             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     B
     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 proceed to
     do so."

                                           (Emphasis supplied}       C

     18. When there are binding decisions, judicial comity
expects and requires the same to be followed. Judicial comity
is an integral part of judicial discipline and judicial discipline
the cornerstone of judicial integrity. No doubt, in case there are   o
newer dimensions not in conflict with the ratio of larger bench
decisions or where there is anything to be added to and
explained, it is always permissible to introduce the same:
Poverty, socio-economic, psychic compulsions, undeserved
adversities in life are thus some of the mitigating factors to be    E
considered, in addition to those indicated in Bachan Singh and
Machhi Singh ca~~s. Thus, we are bound to analyze the facts
in the light of the aggravating and mitigating factors indicated
in the binding decisions which have influenced the commission
of the crime, the criminal, and his circumstances, while
                                                                     F
considering the sentence.

     19. In a recent decision in Shankar Kisanrao Khade vs.
State of Maharashtra·4, this Court has scanned almost all the
post Bachan Singh (supra} decisions rendered by this Court
on death sentence and the principles laid down therein have          G
been restated. Referring to the recent decisions (fifteen years},
the principal reasons considered as aggravating factors for
conferring death penalty have been summarized with reference

4.   (2013) 5 sec 546.                                               H
    312         SUPREME COURT REPORTS                        [2013] 9 S.C.R.


A
    to the decisions in support of the same. To quote paragraph
    122 of Shankar Kisanrao's case (supra):

          "122. The principal reasons for confirming the death
          penalty in the above cases include:
B
          (1) the cruel, diabolic, brutal, depraved and gruesome
          nature of the crime (Jumman Khan 5 , Dhananjoy
          Chatterjee 6 , Laxman Naik7 , Kamta Tewari8 , Nirmal
          Singh 9 , Jai Kumar10 , Satish 11 , Bantu12• Ankush Maruti
c         Shinde13 , B.A. Umesh 14 , Mohd. Mannan 15 and Rajendra
          Pralhadrao Wasnik 16 );

                (2) the crime results in public abhorrence, shocks the
          judicial conscience or the conscience of society or the
          community (Dhananjoy Chatteljee (supra), Jai Kumar
D         (supra), Ankush Maruti Shinde (supra) and Mohd. Mannan
          (supra));

    5.   Jumman Khan vs. State ofU.P., (1191) 1SCC752: (1991) SCC (Cri) 283.
    6.   Dhananjoy Chatterjee vs. State of W.B., (1994) 2 SCC 220: (1994) SCC
E        (Cri) 358.
    7.   Laxman Naik vs. State of Orissa, (1994) 3 SCC 381: (1994) SCC (Cri) 656.
    8.   Kamta Tiwari vs. State of M.P., (1996) 6 SCC 250: (1996) SCC (Cri) 1298..
    9.   Nirmal Singh vs. State of Haryana, (1999) 3 SCC 670: (1999) SCC (Cri)
         472.
F   10. Jai Kumar vs. State of M.P., (1999) 5 SCC 1: (1999) SCC (Cri) 638.
    11. State of U.P. vs. Satish, (2005) 3 SCC 114: (2005) SCC (Cri) 642.
    12. Bantu vs. State of U.P., (2008) 11 SCC 113: (2009) 1 SCC (Cri) 353.
    13. Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667: (2009) 3
        (Cri) 308.
G 14. B.A. Umesh vs. State of Kamataka, (2011) 3 SCC 85: (2011) 1 SCC (Cri)
         801.
    15. Mohd. Mannan vs. State of Bihar, (2011) 5 SCC 317: (2011) 2 SCC (Cri)
        626.
    16. Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37:
        (2012) 2 sec (Cri) 30.
H                                                                      ..
         SUNIL DAMODAR GAIKWAD v. STATE OF                               313
               MAHARASHTRA [KURIAN, J.]
              (3) the reform or rehabilitation of the convict is not             A
       likely or that he would be a menace to society (Jai Kumar
       (supra), B.A. Umesh (supra) and Mohd. Mannan (supra));

             (4) the victims were defenseless (Dhananjoy
       Chatterjee (supra), Laxman Naik (supra), Kamta Tewari
                                                                                 8
       (supra), Ankush Maruti Shinde (supra), Mohd. Mannan
       (supra) and Rajendra Pralhadrao Wasnik (supra));

             (5) the crime was either unprovoked or that it was
       premeditated (Dhananjoy Chatterjee (supra), Laxman
       Naik (supra), Kamta Tewari (supra), Nirrnal Singh (supra), C
       Jai Kumar (supra), Ankush Maruti Shinde (supra), B.A.
       Umesh (supra) and Mohd. Mannan (supra)) and in three
       cases the antecedents or the prior history of the convict
       was taken into consideration (Shivu17 , B.A. Umesh (supra).
       and Rajendra Pralhadrao Wasnik (supra))."                   D

                                                       (Emphasis added)

    20. The mitigating factors governing the award of life
sentence in a murder case, have been summarized at
paragraph 106. To quote:                                                         E

       "106. A study of the above cases suggests that there are
       several reasons, cumulatively taken, for converting the
       death penalty to that of imprisonment for life. However;
       some of the factors that have had an influence in . F
       commutation include:

       (1) the young age of the accused [Amit v. State of
       Maharashtra 18 aged 20 years, Rahu/19 aged 24 years,
       Santosh Kumar Singh 20 aged 24 years, Rameshbhai
17     Shivu vs. High Court of Karnataka, (2007) 4 SCC 713: (2007) 2 SCC (Cri)
                                                                                 G
      686.
18.   (2003) 8 sec 93 : (2003) sec (Cri) 1959.
19. Rahul vs. State of Maharastra, (2005) 10 SCC 322: (2005) SCC (Cri) 1516.
20.   Santosh Kumar Singh vs. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri)
      1~.                                                                        H
    314         SUPREME COURT REPORTS                       [2013) 9 S.C.R.


A          Chandubhai Rathod (2) 21 aged 28 years and Amit v. State
           of U.P. 22 aged 28 years];

           (2) the possibility of reforming and rehabilitating the
           accused (in Santosh Kumar Singh (supra) and Amit v.
           State of U.P. (supra) the accused, incidentally, were young
B
           when they committed the crime);

           (3) the accused had no prior criminal record (Nirmal Singh
           (supra), Raju 23 , Bantu (supra), Amit v. State of
           Maharashtra (supra), Surendra Pal ShivbalakpaP.4 , Rahul
c          (supra) and Amit v. State of U.P. (supra));

           (4) the accused was not likely to be a menace or threat or
           danger to society or the community (Nirmal Singh (supra),
           Mohd. Chaman25 , Raju (supra), Bantu (supra), Surendra
D          Pal Shivbalakpal (supra), Rahul (supra) and Amit v. State
           of U.P. (supra));

           (5) a few other reasons need to be mentioned such as the
           accused having been acquitted by one of the courts (State
           of T.N. v. Suresh 26 , State of Maharashtra v. Suresh 27 ,
E          Bharat Fakira Dhiwar28, Mansingh 29 and Santosh Kumar
           Singh (supra));


    21.          sec 764 : c2011) 1 sec (Cri) 883.
          c2011) 2
F   22. c2012) 4 sec 101: (2012) 2 sec (Cri) 590.
    23.   Raju vs. State of Haryana, (2001) 9 SCC 50: (2002) SCC (Cri) 408.
    24. Surendra Pal Shivbalakpal vs. State of Gujarat, (2005) 3 SCC 127: (2005)
          sec
            (Cri) 653.
    25.    Mohd. Chaman vs. State (NCT of Delhi), (2001) 2 SCC 28 : (2001) SCC
          (Cri) 278.
G   26.   (1998) 2   sec 372: (1998) sec (Cri) 751.
    21.   c2000) 1   sec 471 : c2000) sec (Cri) 263.
    28. State of Maharashtra vs. Bharat Faikra Dhiwar, (2002) 1 SCC 622: (2002)
          sec(Cri) 211.
    29. State of Maharashtra vs. Man Singh, (2005) 3 SCC 131: (2005) SCC (Crl)
H       657.
        SUNIL DAMODAR GAIKWAD v. STATE OF                             315
              MAHARASHTRA [KURIAN, J.]
       (6) the crime was not premeditated (Kumudi La/30 .                    A
       Akhtar3 1 , Raju (supra) and Amrit Singh 32 );

       (7) the case was one of circumstantial evidence
       (Mansingh (supra) and Bishnu Prasad Sinha33 .

       In one case, commutation was ordered since there was                  B
       apparently no "exceptional" feature warranting a death
       penalty (Kumudi Lal (supra)) and in another case because
       the Trial Court had awarded life sentence but the High
       Court enhanced it to death (Haresh Mohandas Rajput34 )."
                                                                             c
                                                   (Emphasis added)

     21. At this juncture, it might be useful to refer also to the
decision in Ediga Anamma's case (supra). In that case, this
Court has held that where the offender suffers from socio-
economic, psychic or penal compulsions insufficient to attract D
a legal exception .or to downgrade the crime into a lesser one, .
judicial commutation is permissible. To quote:

       ."26 ....Where the offender suffers from socio-economic.
        psychic or penal compulsions insufficient to attract a legal         E
        exception or. to downgrade the crime into a lesser one.
        judicial commutation is permissible. Other general social
        pressures. warranting judicial notice. with an extenuating
        impact may. in special cases. induce the lesser penalty.
        Extraordinary features in the judicial process, such as that         F
        the death sentence has hung over the head of the culprit
        excruciatingly long, may persuade the court to be

30. Kumudi Lal vs. State of U.P., (1999) 4 SCC 108: (1999) SCC (Cri) 491.
31. Akhtar vs. State of U.P., (1999) 6 SCC 60: 1999 SCC (Cri) 1058.
                                                                             G
32. Amrit Singh vs. State of Punjab, (2006) 12 SCC 79 : (2007) 2 SCC (CrQ
    397.
33.   Bishnu Prasad Sinha vs. State of Assam, (2007) 11 SCC 467 : (2008) 1
      sec (Cri) 766.
34.   Haresh Mohandas Rajput vs. State of Maharastra, (2011) 12 SCC 56 :
      c2012) 1 sec (Cri) 359.                                                H
    316       SUPREME COURT REPORTS                   [2013) 9 S.C.R.


A         compassionate. Likewise, if others involved in the crime
          and similarly situated have received the benefit of life
          imprisonment or if the offence is only constructive, being
          under Section 302 read with Section 149, or again the
          accused has acted suddenly under another's instigation,
B         without premeditation, perhaps the court may humanely opt
          for life, even like where a just cause or real suspicion of
          wifely infidelity pushed the criminal into the crime .... "

                                                 (Emphasis supplied)

C        22. Ediga Anamma's case (supra) was given the stamp
    of approval in a subsequent decision by a three-Judge Bench
    in Dalbir Singh vs. State of Pµnjab 35 holding also that
    "undeserved adversities of childhood or later'' would also be a
    mitigating factor.
D
         23. This Court in Ediga Anamma's case (supra) has
    referred to a few other aggravating factors as well. To quote:

          "26 .... On the other hand, the weapons used and the
          manner of their use. the horrendous features of the crime
E         and hapless. helpless state of the victim. and the like, steal
          the heart of the law for a sterner sentence. We cannot
          obviously feed into a judicial computer all such situations
          since they are astrological imponderables in an imperfect
          and undulating society. A legal policy on life or death
F         cannot be left for ad hoc mood or individual predilection
          and so we have sought to objectify to the extent possible.
          abandoning retributive ruthlessness, amending the
          deterrent creed and accenting the trend against the
          extreme and irrevocable penalty of putting out life."
G
                                                 (Emphasis supplied)

          24. Socio-economic compulsions such as poverty are also


H 35. AIR 1979 SC 1384.
       SUNIL DAMODAR GAIKWAD v. STATE OF                        317
             MAHARASHTRA [KURIAN, J.]
factors that are to be considered by Courts while awarding a A
sentence. This view has been taken in the decision in Sushi/
Kumar vs. State of Punjab 36 where this Court refrained from
awarding the death sentence because of the extreme poverty
of the accused. The facts in the case of Sushi/ Kumar (supra)
are very similar to the present case. In that case also, the B
accused had committed the murder of his wife and two young
children due to extreme poverty. Later, he allegedly attempted
to take his own life by consuming some tablets. The accused
had been sentenced to death by the trial court and the sentence
was confirmed by the High Court. This Court, while reducing             c
the sentence to life imprisonment observed:

      "46. Extreme poverty had driven the appellant to commit
      the gruesome murder of three of his very near and dear
      family members - his wife. minor son and daughter. There
      is nothing on record to show that appellant is a habitual D
      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 him family so that all
      problems would come to an end. Precisely, this appears
      to be the reason for him to consume some poisonous -E
      substances, after committing the offence of murder.

      47. No witness has complained about the appellant's bad
      or intolerable behaviour in the past. Many people had
      visited his house after the incident is indicative of the fact    F
      that he had cordial relations with all. He is now about thirty-
      five years of age and there appear to be fairly good
      chances of the appellant getting reformed and becoming
      a good citizen."

                                              (Emphasis supplied) G

    25. In the case before us, it has come in evidence that the
appellant suffered from economic and psychic compulsions.

36.   c2009) 10 sec 434.                                                H
    318     SUPREME COURT REPORTS                     [2013] 9 S.C.R.

A   The possibility of reforming and rehabilitating the accused
    cannot be ruled out. The accused had no prior criminal record.
    On the facts available to the Court, it can be safely said that
    the accused is not likely to be menace or threat or danger to
    society. There is nothing to show that he had any previous
B   criminal background. The appellant had in fact intended to wipe
    out the whole family including himself on account of abject
    poverty. This aspect of the matter has not been properly
    appreciated by both the Sessions Court and the High Court
    which held that the appellant had the intention to only wipe out
c   others and had not even attempted, and he was not prepared
    either, for suicide. We are afraid the Courts have not
    appreciated the evidence properly. Had his daughter not
    interrupted him asking the question why he was killing her, his
    intended conduct would have followed, as is evident from his
    response that all of them needed to go from the world. The
0
    crucial and turning point of the change Of heart is the
    conversation she had with him. It is significant to note that he
    had not permitted, in the way he executed the murder of his wife
    and two sons to let them even scream, let alone ask any
    question. It so happened by chance that despite the stab
E   injuries inflicted on the daughter, she managed to weepingly
    question her father why he was acting in such a manner. The
    change of heart is also discernible from the fact that he had
    given water to the injured daughter. After this, he no longer used
    the weapon for finishing her. He tried once again by taking her
F   to his lap and stifling her with the aid of a pillow. However, as
    can be seen from his own statement, he could not finish killing
     her. Thereafter, he went straight to the police station and gave
    a statement of what he had done.

G         26. If we analyse the facts of the case in the backdrop of
    the circumstances of the appellant at the time of commission
    of the offence and on applying the crime test and the criminal
    test, it is fairly clear that the case does not fall under the rarest
    of rare category of cases so as to warrant a punishment of
H   death. The 'individually inconclusive and cumulatively marginal
        SUNIL DAMODAR GAIKWAD v. STATE OF                    319
              MAHARASHTRA [KURIAN, J.]
facts and circumstances' tend towards awarding lesser A
sentence of life imprisonment.

    27. In the above facts and circumstances of the case, while
upholding the conviction of the appellant und~r Section 302 and
Section 307 of IPC, we modify the sentence as follows:
                                                                     B
        (a)   For offence under Section 302 of IPC, the appellant
              is sentenced to life imprisonment.

        (b)   For offence under Section 307 of IPC, the appellant
              is convicted to imprisonment for a period of seven     c
              years.

     28. Imprisonment for life of a convict is till the end of his
biological life as held by the Constitution Bench in Gopal
Vinayak Godse vs. The State of Maharashtra and Others37
case (supra). Hence, there is no point in saying that the D
sentences would run consecutively. However, we make it clear
that in case the sentence of imprisonment for life is remitted or
commuted to any specified period (in any case, not less than
fourteen years in view of Section 433A of the Cr.PC.), the
sentence of imprisonment under Section 307 of IPC shall E
commence thereafter.

       29. The appeals are allowed as above.

R.P.                                    Appeals partly allowed.




37. AIR 1961 SC 600.