Holding

The High Court erred in not applying the requisite balance‑sheet analysis and therefore the death sentence must be reconsidered by the High Court.

Summary

The accused, Devendra Nath Rai, while on quarter‑guard duty, refused to let three army personnel in civilian attire make a "lights out" entry, claimed they were terrorists, and opened fire, killing two soldiers and grievously injuring two others. He was tried by a General Court Martial under the Army Act and sentenced to death, a sentence affirmed by the Central Government. The Allahabad High Court upheld the conviction but held that the case did not fall within the "rarest of rare" category, directing a fresh order on sentencing. On appeal, the Supreme Court held that the High Court failed to conduct the required balance‑sheet analysis of aggravating and mitigating circumstances, contrary to the principles laid down in Bachan Singh and related cases. Consequently, the Supreme Court allowed the appeal in part and remanded the matter to the High Court to reconsider the appropriate sentence, leaving the conviction untouched.

Issues considered

Whether the death penalty awarded by the Court Martial qualifies as a "rarest of rare" case under the Bachan Singh doctrine.
Whether the High Court correctly applied the "rarest of rare" test without a balance‑sheet of aggravating and mitigating circumstances.
Whether the conviction itself is sustainable or requires reconsideration.

Legislation cited

Army Act, 1950s. 153, s. 69
Indian Penal Code, 1860s. 302, s. 307

Subjects

death penaltyrarest of rarecourt martialsentencingbalance sheetaggravating circumstancesmitigating circumstancesmurdercapital punishment

Judgment

-.I,
I

.1 UNION OF INDIA AND ORS. A
v.
DEVENDRA NA TH RAI

JANUARY 10, 2006

[ARIJIT PASAYAT AND TARUN CHATTERJEE, JJ.] B

Criminal Law:

Sentencing-Court Martial awarding death penalty to accused for having
caused homicidal death of two army personnel and attempting to murder two C
others-High Court holding /he conviclion as well meriled bul remilting the
matter lo authorilies concerned lo pass a fresh order as regards senlence as
in its opinion !he case did no/ fall wilhin lhe calegory of rares/ of rare cases-
Held, to consider the queslion ofexlreme penalty of death senlence, aggravaling
and miligating circwnslances have to be weighed-High Courl did no/ attempl D
!hat exercise-The direc/ion of High Courl is conlrary lo lhe principles se/ out
by Supreme Court-High Courl would consider the matter afresh as regards
the sentence only-Court Martial proceedings.

Accused-respondent was on quarter guard duty, at the time of
occurrence. He did not allow the army personnel concerned to write "light E
out" report in the register, on the ground that they were in civvies and
had no identity cards.· Later, when the CHM came and asked the accused
to allow the personnel concerned to write the "light .out" report, the
accused opened fire as a result of which the CHM and three others
received gun-shot injuries. All the four victims were rushed to the hospital
where the CHM and another were declared 'brought dead' and the F
remaining two were found to have received injuries which were grievious
in nature. General Co!lrt Martial proceedings were initiated against the
accused. He was awarded death sentence for having caused death of two
army personnel and for having caused grievious injuries with the intent
of causing murder <if two others. The award of death penalty by the Court G
Martial was affirmed by the Central Government'. The accused filed a writ
· petition before the High Court which held that the convictiOn was well
merited, but opined that the case did not fall in the category of rarest of
rare cases; and directed the authorities concerned to pass a fresh order

- on the question of sentence. Aggrieved, the Union of India and others filed
295 H
296 SUPREME COURT REPORTS [2006) 1 S.C.R.

A the appeal.
Allowing the appeal and remanding the matter back to the High
Court, the Court

HELD: I.I. While deciding the question as to whether the extreme
B penalty of death sentence is to be awarded, a balance sheet of aggravating
and mitigating circumstances has to be drawn up. In the instant case, the
High Court has not attempted to do that exercise and has come to an ,
abrupt conclusion about the case being not covered by the rarest of rare
category. That is clearly contrary to the principles set out by this Court.
1302-E-FI
c
Bachan Singh v. State of Punjab. 1198012 SCC 684; Machhi Singh and
Ors. v. State of Punjab, 1198313 SCC 470 and Devender Pal Singh v. State
of NCT of Delhi, 120021 5 SCC 234, relied on. 1299-C; 301-DI

D 1.2. The High Court would consider the matter afresh limited to the
aspect of appropriate sentence alone as the High Court itself has found
that the conviction was well merited. 1302-FI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 206 of 2003.

E From the Judgment and Order dated 6.1.2000 of the High Court of
Allahabad in Civil Misc. Writ Pe(ition No. 35206/91.

Rajiv Dutta, Ravi P. Mehrotra, Garvesh Kabra and Mrs. Anil Katiyar
for the Appellants.

Subhash Sharma and V.K. Vasdev for the Respondent(s).
F
The Judgment of the Court was delivered by

ARIJIT PASAYA T, J. The Union of India, Chief of Army Staff (Army
Headquarters). General officer Commanding, Commanding Officer, 502, Area
Defence Group and the Commanding Officer, I, Corps, Artillery Brigade are
G in appeal against the judgment of a Division Bench of the Allahabad High
Court directing the authorities to re-consider the question of sentence to be
awarded to the respondent (hereinafter referred to as the 'accused'). In the
.
, '<.

Court martial proceedings, the accused was awarded death sentence for having
caused homicidal death of two army personnel and for having caused grievous
H injuries with the intent of causing murder of two others. The award of death
U.0.1. v. DEVENDRA NATH RAI [PASAYAT,J.] 297

penalty by the Court Martial was affirmed by the Central Government the A
Section 153 of the Army Act, 1950 (in short the 'Army Act').

Factual position as projected by the appellants in a nutshell is as follows:-

On 15. I0.1991, the accused was on the quarter guard duty along with
SCR Swamy, Y. Prasad and GS Pandey respectively (P.Ws. 4, 5 and 6). The B
first one was the Guard commander and the other two were the sentries. The
Rifle bearing butt no. 32 and registered No. BV-3528 was being used by the
sentries for performance of their duties. At about 5 P.M. the accused having
finished his duty handed over the sentry duty to PW-6 and went for a wash
and his meals. In turn, at about 7 P.M. PW-5 relieved a PW-6 and took over C
as the sentry. His period of duty was up to 9 P.M., whereafter he was to be
relieved by the accused. At about 9.15 _P.M. the accused retuned to the
quarter guard after his dinner and.told PW-5 to go for his dinner. Accordingly,
he relieved PW-5 by taking over his duty. At that time, B.P. Verma (PW-
7) was lodged in the quarter &uard as a prisoner. All lights were on. After a
few minutes, Tuki Ram (PW-8) dressed in civvies reached the quarter guard D
to write the "light out" report in the Register, kept for the purpose. He asked
the accused for a pen, who told him that he did not have one. PW-8, therefore,
kept the register on a bench lying outside the verandah of the quarter guard.
In the meantime, Subash Bablo (PW-9) and Sigmn K. Parthasarthi (hereinafter
referred to as the 'deceased Parthasarthi' reached there to write the "lights E
out" reports. Both of them were also dressed in civvies. PW-9 started writing
in the Register, which he had picked up from the bench. The accused snatched
the same and threw it away. The accused told them that since they were
dressed in civvies and did not possess their Identity Cards, he would not let
them make entries in the Register. PW-9 told him that he was personally
known to him having served together and that there were no orders to the F
.effect that the "lights out" entries were to be made only in uniform. The
accused, even then, did not allow them to do the needful. On PW-8 proposing
to return, the accused did not allow him and others to go and instructed them
to sit down on the bench till the arrival of CHM R. S. Rathore (hereinafter
referred to as deceased 'Rathore'). PW-8 shouted for the duty clerk, who was G
in the vicinity, to call the duty NCO. In the meantime, PW-5 returned and
found PW-8, 9 and deceased Parthasarthi sitting on the bench. At that time,
the light in the quarter guard as well as the street lights were on. PW-5 asked
the accused to return his rifle so that he would resume his duty, but the
accused did not return the rifle to PW-5 and instead asked him to call the
CHM. On PW-S's query, the accused told him that CHM was required since H
298 SUPREME COURT REPORTS 12006) I S.C.R.

A the three persons sitting on the bench had come to write the "lights out"
reports, dressed in civvies and without Identity Cards and so far as he was
concerned they were terrorists. PW-5 advised him not to create a scene but
he did not pay any heed. PW-5 again asked the accused to return the rifle and
told him that if he wanted to call CHM, he should go himself. After some
B time, CHM (deceased 'Rathore') arrived in his combat uniform and learnt of
the goings on from PW-8. When he enquired from the accused as to why he
was not allowing them to sign the register, the accused told him that they
were dressed in civvies and were not having their Identity Cards with them.
The CHM (deceased 'Rathore) told the accused that there were no orders
about the dress and they were well know being cov personnel. The CHM
C asked them to go ahead with the filing up of the register. He also enquired
from the accused if he had consumed liquor. No sooner these words were
uttered, the accused fired shot at deceased Rathore who was standing at a
distance of about four yards. On being hit by the bullet, Rathore fell down.
Thereafter accused fired three shots at PW-8 and PW-9 deceased Parthasarthi
in quick succession. Each one of them fell down. PW-7 and PW-6 saw the
D firing incident. The accused found PW-6 inside the guard room, abused him
and asked him to run away from the spot. Thereafter the accused went near
the fuse bos and the lights went off in the quarter guard. The incident was
reported to the Commanding Officer Lt. Col. H.S. Teotra (PW-3) and Sub
Maj B.R. Pawar (PW- I), who rushed to the scene of incident. The persons
E who had received injuries were taken to the hospital where Dr. Gangopadhay ...
(PW-I I) after examination declared Rathore and Parthasarthi as "brought
dead" and found PW-8 and PW-9 to have received injuries which were
grievous in nature. The post mortem was carried out. On the basis of report
given General Court Martial proceedings commenced and the accused faced
trial under the Army Act. There were four charges under Section 69 of Army
F Act. The first two charges related to commission of civil offence that is
murder contrary to Section 302 of the Indian Penal Code, 1860 (in short
'!PC') and the other two related to civil offence i.e. attempt to murder,
contrary to Section 307 l.P.C. The accused took the plea that the scenario as
described by the prosecution was not correct. The reports of proceedings and
G trial were submitted and on consideration thereof the Deputy Judge Advocate
General was of the view that the evidence on record clearly established the
guilt of the accused. Considering the materials on record he came to hold that
this was a case which clearly was covered by the category of rarest of rare
cases and deserved death sentence. The Judge Advocate General affinned
the view and the findings of the Deputy Judge Advocate General as regards
H the conviction and the sentence. The Central Government also aflinned those.
U.0.1. v. DEVENDRA NATH RAJ [PASAYAT, J.] 299

A writ application was filed before the Allahabad High Court questioning the A
conviction and the sentence imposed. By the impugned judgment, the High
Court held that the conviction was well merited, but felt that the case did not
fall in the category of rarest of rare cases and therefore directed the authorities
to pass a fresh order on the question of sentence. The writ application was
allowed to that limited extent.
B
Mr. Rajiv Dutta, learned Senior counsel for the appellants submitted
that the procedure to be followed while dealing with the question of sentence
is clearly spelt out in the various guidelines. The statutory provisions of the
Army Act and the concerned rules provide ample guidelines in the matter.
Even going by the ratio not decisions of this Court in Bachan Singh v. State C
of Punjab, [ 1980] 2 SCC 684 and Machhi Singh and Ors. v. State of l'unjab,
(1983) 3 470, the judgment of the High Court cannot be maintained. The
'High Court lost sight of the fact that it was dealing with the case of a person
belonging to a disciplined force. The murder was not only cruel and brutal
but also r\pre-planned and pre-meditated. Even conduct of the accused after
the incident was not one of remorse, but was to the effect that he was sorry D
that he could not kill the other two persons.

In response, learned counsel for the respondent submitted that the High
Court has taken note of the relevant factors. The factors according to the
High Court seem to be unblemished reputation and antecedents of the
respondent which, as the records go to show, exemplary. Even ifthe evidence E
on record establishes that the accused was responsible for taking away the
lives of two and seriously injuring the two others, that by itself canr•.Jt bring
the case to the category of rarest of rare cases, as categorized by this Court
in Bachan Singh and Machhi Singh's cases (supra). The rival stands need
careful consideration.
F
In Bachan Singh 's case, a Constitution Bench of this Court at paragraph
132 summed up the position as follows:

"132. To sum up, the question whether or not death penalty
serves any penological purpose is a difficult, complex and
intractable issue. It has evoked strong, divergent views. For the G
purpose of testing the constitutionality of the impugned provision
as to death penalty in Section 302, Penal Code on the ground of
reasonableness in the light of Articles 19 and 21 of the
Constitution, it is not necessary for us to express any categorical
opinion, on way _or the other, as to which of these two antithetical
views, held by the Abolitionists and Retentionists, is correct. It H
300 SUPREME COURT REPORTS [2006] I S.C.R.

A is sufficient to say that the very fact that persons of reason,
learning and light are rationally and deeply divided in their
opinion on this issue, is a ground among others, for deeply divided
in their opinion on this issue, is a ground among others, for
rejecting the petitioners argument that retention of death penalty
in the impugned provision, is totally devoid of reason and purpose.
B If, notwithstanding the view of the Abolitionists to the contrary,
a very large segment of people, the world over, including
sociologists, legislators, jurists, judges and administrators still
firmly believe in the worth and necessity of capital punishment
for the protecti9n of society, if in the perspective of prevailing
crime conditions in India, contemporary public opinion
c channelized thrvugh the people's representatives in Parliament,
has repeatedly in the last three decades, rejected all attempts,
including the one made recently, to abolish or specifically restrict
the area of death penalty, if death penalty is still a recognized
legal sanction for murder or some types of murder in most of the
D civilized countries in the world, if the framers of the Indian
Constitution were fully aware-r~· we shall presently show they
were---0f the existence of death penalty as punishment for murder,
under the Indian Penal Code, if the 35th Report and subsequent
reports of the Law Commission suggesting retention of death
penalty, and recommending revision of the Criminal Procedure
E Code and the insertion of the new Sections 235(2) and 354(3) in
that Code providing for pre-sentence hearing and sentencing
procedure on conviction for murder and other capital offences
were before the Parliament and presumably considered by it when
in 1972-1973 it took up revision of the Code of 1898 and replaced
it by the Code of Criminal Procedure, 1973, it is not possible to
F hold that the provision of death penalty as an alternative
punishment for murder, in Section 302, Penal Code is
unreasonable and not in the public interest. We would, therefore,
conclude that the impugned provision in Section 302, violates
neither the letter nor the ethos of Article 19."

G Similarly in Machhi Singh 's case (supra) in paragraph 38 the position
was summed up as follows:
"38. In this background the guidelines indicated in Bachan Singh
case will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentence
H arises. The following propositions emerge from Bachan Singh case:
U.0.1. v. £?EVENDRA NATH RAI [PASAYAT, J.] 301
(i) The extreme penalty of death need not be inflicted except in A
gravest cases of extreme culpability.
(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'.
(iii) Life imprisonment is the rule and death sentence is an exception. B
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, and
provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having C
regard to the nature and circumstances of the crime and all the
relevant circumstances.
(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 between the aggravating and the mitigating circumstances D
before the option is exercised:"
The position was again reiterated in Devender Pal Singh v. State of
NCT of Delhi, (2002] 5 SCC 234:
58. "From Bachna Singh v. State of Punjab and Machhi Singh v.
State of Punjab the principfe culled out is that when the collective E
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 observed: F
The community may entertain such sentiment in the following
circumstances
(i) When the murder is committed in an extremely brutal, grotesque,
diabolical, revolting, or dastardly manner so as to arouse intense and
extreme indignation of the community. G
(2) When the murder is committed for a motive which evinces total
depravity and meanness; e.g. Murder by hirc:d assassin for money or
reward; or cold-blooded m'urder for gains of a person vis-a-vis whom
the murderer is in a dominating position or in a position of trust; or
H
302 SUPREME COURT REPORTS [2006) I S.C.R.

A murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority
community etc. is committed not for personal reasons but in
circumstances which arouse social wrath; 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
B
woman on account of infatuation.
(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 ofa particular caste, community, or locality,
are committed.
c
(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 loved and
respected by the community.
If upon taking an overall global view of all the circumstances in the
D light of the aforesaid propositions and taking into account the answers
to the questions posed by way of the test for the rarest or rare cases,
the circumstances of the case are such that death sentence in warranted,
the court would proceed to do so.
What is culled out from the decisions noted above is that while deciding
E the question as to whether the extreme penalty of death sentence is to be
awarded, a balance sheet of aggravating and mitigating circumstances has to
be drawn up.
In the instant case, the High Court has not attempted to do that exercise
and has come to an abrubt conclusion about the case being not covered by
F the rarest of rare category. That is clearly contrary to the principles set out
by this Court in the decisions noted above. We deem it appropriate to remit
the matter to the High Court to consider the matter afresh and take the
decision as to the appropriate sentence. The exercise has only to be limited
to that aspect alone as the High Court itself has in the impugned judgment
found that the conviction was well merited.
G
The appeal is allowed to the aforesaid extent with no order as to costs.
Appeal allowed.
' '
R.P.