VASANTA SAMPAT DUPAREversusSTATE OF MAHARASHTRA

                            [2017] 3 S.C.R. 850



A                     VASANTA SAMPAT DUPARE
                                     v.
                       STATE OF MAHARASHTRA
               (Review Petition (Crl.) Nos. 637-638 of 2015)
B                                    In
                 (Criminal Appeal Nos. 2486-2487 of 2014)
                             MAY03,2017
                [DIPAK MISRA, R. F. NARIMAN AND
                     UDAY UMESH LALIT, JJ.]
C         Sentence/Sentencing:
        Death sentence - Conviction .of review petitioners for rape
  and murder of a minor girl of 4 years and award of death sentence
  - Held: In the judgment under review, this Court had considered
  the aggravating facts and the mitigating circumstances - The
D brutality and diabolical nature of the crime and the fact that the
  victim had reposed trust and confidence in the petitioner was taken
  into account and this Court found the aggravating circumstances
  completely outweighed the other factors - The court did not find
  any mitigating circumstances in favour of review petitioners for
  awarding lesser punishment - The evidence and circumstances were
E dealt with in the judgment under review in great detail - Therefore,
  no interference with the order of death sentence - Review petition
  liable to be dismissed.
         Death sentence - Plea of review petitioner that in the light of
  principles laid down in Bachan Singh, mitigating factors· ought to
F have been taken into account and that proper and effective hearing
  in that regard was not extended to the petitioner - Held: Plea not
  sustainable - Jn Bachan Singh case, the burden was·upon the State
  in respect of conditions (3) and (4) i.e. the probability that the
  accused would not commit criminal acts of violence as would
G constitute a continuing threat to society and the probability that the
  accused can be reformed and rehabilitated - It was stated therein
  that th(! State shall by evidence prove that the accused did not satisfv
  these two conditions - However, in the subsequent paragraphs it
  was mentioned that those circumstances would certainly be relevant
  and great weight be attached to them but it was the cumulative effect
H
                                     850
 VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                      851


of mitigating circumstances on one hand and aggravating facts on A
the other, which would be weighed to come to the final conclusion
whether the case satisfied the requirement of being "rarest of rare"
- Therefore, the correct interpretation of Bachan Singh case is that
mere failure on part of the State to lead such evidence would not
clinch the issue in favour of the accused - It is a relevant B
consideration which will be weighed by the Court together with
other circumstances on record.
       Death sentence - Aggravating and mitigating circumstances -
Both aspects have to be given their respective weightage - The court
has to strike a balance between the two and see towards whichside
scale of justice tilts - The material placed on record showed that c
after the judgment under review, the petitioner completed Bachelors
Preparatory Programme offered by the Indira Gandhi National Open
University enabling him to prepare fo'r Bachelor level study and
that he has also completed the Gandhi Vichar Pariksha and had
participated in drawing competition - Jail record of the petitioner D
was without any blemish and it was projected that there was a
possibility of the accused being reformed and rehabilitated -
However, the aggravating circumstances namely the extreme
depravity and the barbaric manner in which the crime was. committed
and the fact that the victim was a helpless girl offour years clearly
outweigh the mitigating circumstances brought on record - No case E
made out to take a different view in the matter.
       Code ,of Criminal Procedure, 1973 - s.235(2) - Scope of -
Plea of review petitioner that the judgment of conviction and the -~
order of sentence was passed by trial court on the same day which
was opposed to the spirit of s.235(2) - Held: The purp6se of s.235(2) F
is to give sufficient time to the accused or the prosecution on the
question of sentence to show the grounds on which the prosecution
may plead or accused may show that the maximum sentence of death
may be the appropriate sentence or the minimum sentence of life
imprisonment may be awarded as the case may be - However, merely G
because no separate date was given for hearing on sentence, the ·
entire exercise is not vitiated - Plea rejected - Sentence/Sentencing.
     · Dismissing the review petitions, the Court
      HELD: 1. Sub-section (2) of Section 235 of the Cr.P.C.
                                                                     H
852           SUPREME COURT REPORTS                     [2017] 3 S.C.R.


A     obliges the Court to hear the accused on the question of sentence
      and normally it is expected that after recording the conviction,
      the matter be adjourned to a future date calling upon both the
      prosecution as well as the defence to place relevant material
      having bearing on the question of sentence. However, merely
      because no separate date was given for hearing on sentence, the
B
      entire exercise is not flawed or vitiated. [Paras 14, 15J[868-H;
      869-A; 870-F-G)
            2. It is well settled, "the Court would consider the
      cumulative effect of both the aspects (namely aggravating factors
      as well as mitigating circumstances) and it may not be very
c     appropriate for the Court to decide the most significant aspect of
      sentencing policy with reference to one of the classes completely
      ignoring other classes under other heads and it is the primary
      duty of the Court to balance the two." Further, "it is always
      preferred not to fetter the judicial discretion by attempting to
D     make excessive enumeration, in one way or another; and that
      both aspects namely aggravating and mitigating circumstances
      have to be given their respective weightage and that the Court.
      has to strike the balance between the two and see towards which
      side the scale/balance of justice tilts."[Para 19][876-F-H]

E       3. The material placed on record shows that after the
  judgment under review, the petitioner has completed Bachelors
  Preparatory Programme offered by the Indira Gandhi National
  Open University enabling him to prepare for Bachelor level study
  and that he has also completed the Gandhi Vichar Pariksha and
  had participated in drawing competition organized sometime in
F January 2016. It is asserted that the jail record of the petitioner
  is without any blemish. The matter is not contested as regards
  Conditions 1, 2, 5, 6 and 7 as stated in *Bachan Singh. case but
  what is now being projected is that there is a possibility of the
  acc'used being reformed and rehabilitated. The aggravating
G circumstances namely the extreme depravity and the barbaric
  manner in which the crime was committed and the fact that the
  victim. was a helpless gid of four years clearly outweigh the
  mitigating circumstances now brought on record. No case is made
  out to take a different view in the matter. [Para 20J[877-A-D] <·

H
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                         853


     *Bachan Singh v. State of Punjab (1980) 2 SCC 684 -              A
     followed.
     Machhi Singh and others v. State of Punjab (1983) 3
     SCC 470 : [1983) 3 SCR 413; Mohd. Arif @ Ashfaq
     v. Registrar. Supreme Court of India and others [2014)
     11 SCR 1009 : (2014) 9 SCC 737; Vasanta Sampat                   B
     Dupare v. State of Maharashtra (2015) 1 SCC 253;
     Dagdu and Others v. State of Maharashtra (1977) 3
     SCC 68 : [1977) 3 SCR 636; Al/auddin Mian and
     Others v. State of Bihar (1989) 3 SCC 5 : [1989) 2
     SCR 498; Malkiat Singh and others v. State of Punjab
     (1991) 4 SCC 341 : [1991) 2 SCR 256; B.A. Umesh v.               c
     High Court of Karnataka (2016) 9 SCALE 600: [2016]
     5 SCR 438; Tarlok Singh v. State of Punjab (1977) 3
     SCC 218 : [1977) 3 SCR 711; Rajesh Kumar v. State
     through Government of NCT of Delhi [2011) 15 SCR
     92 : 2011 (11) SCALE 182; Ramnaresh and Others v.                D
     State of Chhattisgarh (2012) 4 SCC 257 : [2012) 3 SCR
     630 - relied on.
                      Case Law Reference
     (2014) 11 SCR 1009       relied on              Paral
     (201s) 1 sec 2s3         relied on              Para2            E

     (1980) 2 sec 684         followed               Para4
     (1983) 3 SCR 413         relied on              Paras
     (1977) 3 SCR 636         relied on              Para 10
     (1989) 2 SCR 498         relied on              Para 12          F
      [1991) 2 SCR 256        relied on              Para 14
      (2016) 5 SCR 438        relied on              Para 15
      [1977) 3 SCR 711        relied on              Para 15
      [2011) 15 SCR 92        relied on              Para 17          G
      (2012) 3 SCR 630        relied on              Para 18
      CRIMINAL APPELLATE JURISDICTION: Review Petition
(Criminal) Nos. 637-638 of2015 in Criminal Appeal Nos. 2486-2487 of
2014.
                                                                      H
854              SUPREME COURT REPORTS                       [2017] 3 S.C.R.


A            From the Judgment and Order dated 27.03.2012 of the High Court
      of Judicature at Bombay, Nagpur Bench, Nagpur in Criminal Confirmation
      CaseNo. l of2012andCriminalAppealNo.112of2012.
            Anup Bhambhani, Sr.Adv, Nishant Gokhale, Yash S. Vijay, Senthil
      Jagadeesan, Advs. for the Petitioner.
B          . Nishant Ramakantrao Katneshwarkar, Arpit Rai, Advs. for the
      Respondent.
              The Judgment of the Court was delivered by
         UDAY UMESH LALIT, J. I. These Review Petitions are
C directed against the Judgment and Order dated 26.11.2014 passed by
  this Court in Criminal Appeal Nos.2486-87 of2014 affirming conviction
  of the petitioner for the offences punishable under Sections 302, 363,
  367, 376(2)(f) and 201 IPC and various sentences imposed upon the
  petitioner including death sentence under Section 302 IPC and life
  imprisonment under Section 376(2)(f) IPC. In view of the decision of
D this Court in Mohd. Arif @Ashfaq v. Registrar, Supreme Court of
  India and others. 1, these review petitions were listed in Court for oral
  hearing.                                                      ·
           2. The facts leading to the filing of criminal appeals in this Court
    including the nature and quality of evidence on record have been dealt
E with and considered in the Judgment of this Court dated 26.11.2014 2:
   'The charge against the petitioner was that the victim, a minor girl of four
    years was raped and battered to death by the petitioner. The petitioner
    allegedly lured the victim by giving her chocolates, kidnapped her and
    after satisfying his lust caused crushing injuries to her with the help of
F stones weighing about 8.5 kg and 7.5 kg. The prosecution relied upon
    the evidence of PW2 Manisha, PW3 Mina!, PW5 Vandana and PW6
    Baby Sharma who had seen the petitioner taking away the victim on a
    bicycle on the fateful day. In his disclosure statement under Section 27
  ·:of the Evidence Act the petitioner had shown the place where dead
    body of the victim was lying and the tap where he had washed his blood
G stained clothes. The medical evidence on record was dealt with in
    paragraph 14 of the Judgment under review as under:-
              14. According to the doctor, he had found during internal .
              examination that under scalp haematoma was present over left
      1
          (2014) 9 sec 131
H     2
          (2015) 1 sec 253
 VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                            855
             [UDAY UMESH LAUT, J.]

      frontal and right frontal region of size 4cm x 4cm, dark red, the A
      frontal bone was fractured and depressed, fracture line extended
      up to occipital bone through right temporal and parietal bone
      fracture on interior and middle cranial side. The subarachnoid
      haemorrhage was present all over the brain surface and meninges
      were congested. In his opinion, the cause of death was head injury, B
      associated with the injury on the genitalregion. He has testified
      that the two stones that were sent to him in sealed cover along
      with the requisition, Ext.62, for opinion, could have been used to
      cause the injuries on the victim. He has weighed the stones, which
      are, 8.5kg and 7.5kg, and has opined that there had been forceful
      sexuaUntercourse."                                                  C
      3. After taking into account the evidence and the circumstances
on record, this Court in the Judgment under review concluded as under:-
      "On a critical analysis of the evidence on record, we are convinced
      that the circumstances that have been clearly established are that
      the appellant was seen in the courtyard where the minor girl and D
      other children were playing; that the appellant was seen taking
      the deceased on his bicycle; that he had gone to the grocery shop
      owned by PW-6 to buy Mint chocolate along with her; that the
      accused had told PW2 that the child was the daughter of his friend
      and he was going to 'Tekdi-Wadi' along with the girl; that the E "
      appellant had led to discovery of the dead body of the deceased, _
      the place where he had washed his clothes and at his instance the
      stones smeared with blood were recovered; that the medical
      report clearly indicates about the injuries sustained by the deceased
      on her body; that the injuries sustained on the private parts have
      been stated by the doctor to have been caused by forcible sexual F__
      intercourse; that the stones that were seized were smeared with
      blood and the medical evidence corroborates the fact that injuries
      could have been caused by battering with stones; that the chemical
      analysis report shows that the blood group found on the clothes of
      the appellant; that the appellant has not offered any explanation G
      with regard to the recovery made at his instance; and that nothing
      h(ls been stated in his examination under Section 313 CrPC that
      there w· any justifiable reason to implicate him in the crime in
      question. Thus, we find that each of the incriminating
      circumstances has been cle-arly established and the chain of
                                                                          H
856            SUPREME COURT REPORTS                           [2017] 3 S.C.R.


A           circumstances are conclusive in nature to exclude any kind of
            hypothesis, but the one proposed to be proved, and lead to a definite
            conclusion that the crime was committed by the accused.
            Therefore, we have no hesitation in affirming the judgment of
            conviction rendered by the learned trial Judge and affirmed by
           ·the High Court."
B
            4. On the issue of death sentence awarded to the petitioner, this
      Com;t first considered the principles governing the matter in issue as
      under:-
            "39. Now we shall proceed to deal with the facet of sentence·. In
c           Bachan Singh v. State of Punjab3, the Court held thus:
            "(a) The normal rule is thatthe offence of murder shall b'e punished
            with the sentence of life imprisonment. The Court can depart
            from that rule and impose the sentence of death only ifthere are
            special reasons for doing so. Such reasons must be recorded in
D           writing before imposing the death sentence.
            (b) While considering the question of sentence to be imposed for
            the offence of murder under Section 302 of the Penal Code, the
            Court must. have regard to every relevant circumstance relating
            to th<: crime as well as the criminal. If the Court finds, but not
            otherwise, that the offence is of an exceptionally depraved and
 E
            heinous character and constitutes, on account of its design and
            the manner ofits execution, a source of grave danger to the society
            at large, the Court may impose the death sentence."
            40. ln Bachan Singh case3 the Court referred to the decision in
            Furman v. Georgia4 and noted the suggestion given by the learned
 F          counsel_ about the aggravating and the mitigating circumstances.
            While discussing about the aggravating circumstances, the Court
            noted the aggravating circumstances suggested by the counsel·
            which read as follows: (Bachan Singh case3, SCC p. 749, para
            202)
 G          "Aggravating circumstances.-A court may, however, in the
            following cases impose the penalty of death in its discretion:
            (a) ifthe murder has been committed after previous planning and
            involves extreme brutality; or
      ' (1980) 2 sec 684
 H
      4
        33 L.Ed. 2d 346 = 408   us 238 (1972)
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                              857
                                            '·
            [UDAY UMESH LAUT, J.]

   (b) ifthe murder involves exceptional depravity; or                     A
   (c) ifthe murder is of a member of any of the armed forces of the
   Union or ofa memberofany police force or of any public servant
   and was committed-
   (i) while such member or public servant was on duty; or
                                                                           B
   (ii) in consequence of anything done or attempted to be done by
   .such member or public servant in the lawful discharge of his duty
    as such member or publiC servant whether at the time of murder
    he was such member or public servant, as the case may be, or
    had ceased to be such member or public servant; or
                                                                           c
   (d) if the murder is of a person who had acted in the lawful
   discharge of his duty under Section 43 of the Code of Criminal
   Procedure, 1973, or who had rendered assistance to a Magistrate
   or a police officer demanding his aid or requiring his assistance
   under Section 37 and Section 129 of the said Code."
                                                                           D
   After reproducing the same, the Court opined: (SCC p. 749, para
   203)
                                                 "
    "203. Stated broadly, there can be no objection to the acceptance
  · of these indicators but as we have indicated already, we would
    prefer not to fetter judicial discretion by attempting to make an
    exhaustive enumeration one way or the other."
                                                                           E·
                                                                   (
   41. ;[hereafter, the Court referred to the suggestions pertaining
   to mitigating circumstances: (Bachan Singh casi, - SCC p.750
   para 206)
   "Mitigating circumstances.-In the exercise of its discretion in         F
   the above cases, the court shall take into account the following
   circumstances.-
   (1) That the offence was committed under the influence of
   extreme mental or emotional disturbance.
   (2) The age of the accused. If the accused is y~mng or old, he          G
   shall not be sentenced to death.
    (3) The probability that the accused would not commifcriminal
  . acts of violence as would constitute a continuing threat to society.

                                                                           H
858            SUPREME COURT REPORTS                          [2017] 3 S.C.R.


A          (4) The probability that the accused can be reformed and
           rehabilitated.
           The State shall by evidence prove that the accused does not satisfy
           Conditions (3) and (4) above.
           (5) That in the facts and circumstances of the case the accused
B          believed that he was morally justified in committing the offence.
            (6) That the accused acted under the duress or domination of
            another person.
            ( 7) That the condition of the accused showed that he was mentally
c           defective and that the said defect impaired his capacity to
            appreciate the criminality of his conduct."
            After reproducing the above, the Court observed: (SCC p. 750,
            para 207)
           · "207. We will do no more than to say that these are undoubtedly
D            relevant circumstances and must be given great weight in the
             determination of sentence.
            42. In the said case, the Court has also held thus: (Bachan Singh
                 3
            case' sec p. 751, para 209)
            "209 . ... It is, therefore, imperative to voice the concern that
 E
            courts, aided by the broad illustrative guidelines 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) viz. that for persons convicted of
            murder, l~fe imprisonment is the rule and death sentence an
 F          exception. A real and abiding concern for the dignity of human
            life postulates resistance to faking 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."
G           43. In Machhi Singh and others v. State of Punjab 5 a three-
            Judge Bench has explained the concept ofrarest of the rare cases
            by stating that: (SCC p. 487, para 32)
            "32. The reasons why the community as a whole does not endorse ·
      '(1983) 3 sec 470
H
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                               859
            [UDAY UMESH LALIT, J.]

   the humanistic approach reflected in 'death sentence-in-no-case' A
   doctrine are not far to seek. In the first place, the very humanistic
   edifice is constructed on the foundation of 'reverence for life'
   principle. When a member of the community violates this very
   principle by killing another member, the society may not feel itself
   bound by the shackles of this doctrine. Secondly, it has to be B
   realised that every member of the community is able to live with
   safety without his or her own life being endangered because of
   the protective arm of the community and on account of the rule of
   law enforced by it. The very existence of the rule oflaw and the
   fear of being brought to book operates as a deterrent of those
   who have no scruples in killing others if it suits their ends. Every C
   member of the community owes a debt to the community for this
   protection."
   44. Thereafter, after adverting to the aspects of the feeling of the
   community and its desire for self-preservation, the Court opined
   that the community may well withdraw the protection ·by D
   sanctioning the death penalty. The Court in that regard ruled thus:
   (Machhi Singh case, SCC p. 487, para 32)
   "32 . ... But the community will not do so in every case. It may do
   so 'in the rarest ofrare cases' when its collective conscience is
   so shocked that it will expect the holders of the judicial power         E
   centre to inflict death penalty irrespective of their personal opinion
   as regards desirability or otherwise ofretaining death penalty."
   It is apt to state here that in the said case, emphasis was laid on
   certain aspects, namely, manner of commission of murder, motive
   for commission of murder, anti-social or socially abhorrent nature F
   of the crime, magnitude of crime and personality of the victim of
   murder.
  45. After so enumerating, the propositions that emerged out from
  Bachan Si~gh were culled out which are as follows: (Machhi
                 3



  Singh case , SCC p. 489, para 38)                                         G
   "38 . ... The following propositions emerge from Bachan Singh
        J             .
   case:
   '(i) The extreme penalty of death need not be inflicted except in
   gravest cases of extreme culpability.
                                                                            H
860           SUPREME COURT REPORTS                           [2017) 3 S.C.R.


A          (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".
                                                       1
           (iii) Life imprisonment is the rule and death sentence is an
           exception. In other words death sentence must be imposed only
 B         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 regard to the nature and circumstances of the
           crime and all the relevant circumstances.
 c
            (iv) A balance sheet of aggravating and mitigating circumstances
            has to be drawn up and in doing so the mitigating cir.;umstances
            have to be accorded full weightage and a just balance has to be
            struck between the aggravating and the mitigating circumstanc.es
            before the option is exercised."
 D
            46. Thereafter, the three-Judge Bench opined that to apply the
            said guidelines, the following questions are required to be answered:
            (Machhi Singh cas/, SCC p. 489, para 39)
            "(a) Is there something uncommon about the crime which renders ·
 E          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 mitigating circumstances .vhich speak
  F
            in favour of the offender?"
            In the said case, the Court upheld the extreme penalty of death in
            respect of three accused persons."
          5. In the light of the principles as stated above, the facts of the
    present matter were considered by this Court in the Judgment under
  G review as under:-
            "57. Keeping in view the aforesaid authorities, we shall proceed
            to adumbrate what is the duty of the Court when the colleetive
            conscience is shocked because of the crime committed. When
            the crime is diabolical in nature and invites abhorrence of the
  H
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                         ·861
            [UDAY UMESH LAUT, J.]

   collective, it shocks the judicial conscience and impels it to react A
   keeping in view the collective conscience, cry of the community
   for justice and the intense indignation at the manner in which the
   brutal crime is committed. We are absolutely conscious that Judges
   while imposing sentence, should never be swayed away by any
   kind of individual philosophy and predilections. It should never B
   have the flavour of Judge-centric attitude or perception. It has to
   satisfy the test laid down in various precedents relating to the
   rarest of the rare case. We are also required to pose two questions
   that have been stated in Machhi Singh case·.
   58. Presently; we shall proceed to dwell upon the manner in which
   the crime was committed. Materials on record clearly reveal that C
   the appellant was well acquainted with the inhabitants of the locality
   and as is demonstrable he had access to the house of the father
   of the deceased and the children used to call him "uncle". He had
   lured the deceased to go with him to have chocolates. It is an act
   of taking advantage of absolute innocence. He had taken the D
   deceased from place to place by his bicycle and eventually raped
   her in a brutal manner, as if he had an insatiable and ravenous
   appetite:The injuries caused on the minor girfare likely to send a
   chill in the spine of the society and shiver in the marrows of human
   conscience. He had battered her to death by assaulting her with
   two heavy stones. The injured minor girl could not have shown E
   any kind of resistance. It is not a case where the accused had a
   momentary lapse. It is also not a case where the minor child had
   died because of profuse bleeding due to rape but because of the
   deliberate cruel assault by the appellant. After the savage act
   was over, the coolness of the appellant is evident, for he washed F
   the clothes on the tap and took proper care to hide things. As is
   manifest, he even did not think for a moment the trauma and
   torture that was caused to the deceased. The gullibility and
   vulnerability of the four year girl, who could not have nurtured
   any idea about the maladroitly designed biological desires of this
   nature, went with the uncle who extinguished her life-spark. The G
   barbaric act of the appellant does not remotely show any concern
   for the precious life of a young minor child who had really not
   seen life. The criminality of the conduct of the appellant is not
   only depraved and debased, but can have a menacing effect on
                                                                       H
862           SUPREME COURT REPORTS                             [2017] 3 S.C.R.


A          the society. It is calamitous.
           60. In the case at hand, as we find, not only was the rape
           committed in a brutal manner but murder was also committed in a
           barbaric manner. The rape of a minor girl child is nothing but a
           monstrous burial of her dignity in the darkness. It is a crime against
B          the holy body of a girl child and the soul of society and such a
           crime is aggravated by the manner in which it has been committed.
           The nature of the crime and the manner in which it has been
           committed speaks about its uncommonness. The crime speaks of
           depravity, degradation and uncommonality. It is diabolical and
           barbaric. The crime was committed in an inhuman manner.
c          Indubitably, these go a long way to establish the aggravating
           circumstances.
           61. We are absolutely conscious that mitigating circumstances
           are to be taken into consideration. The learned counsel for the
           appellant pointing out the mitigating circumstances would submit
D          that the appellant is in his mid-fifties and there is possibility of his
           reformation. Be it noted, the appellant was aged about forty-seven
           years at the time of commission of the crime. As is noticeable,
           there has been no remorse on the part of the appellant. There are
           cases when this Court has commuted the death sentence to life
 E         finding that the accused has expressed remorse or the crime was
           not premeditated. But the obtaining factual matrix when unfolded
           stage by stage would show the premeditation, the proclivity and
           the rapacious desire. The learned counsel would submit that the
           appellant had no criminal antecedents but we find tho ~ he was a
           history-sheeter and had a number of cases pending ag..tinst him.
 F         That alone may not be sufficient. The appalling cruelty shown by
           him to the minor girl child is extremely shocking and it gets
           accentuated, when his age is taken into consideration. It was not
           committed under any mental stress or emotional disturbance and
           it is difficult to comprehend that he would not commit such acts
           and would be reformed or rehabilitated. As the circumstances
           would graphically depict, he would remain a menace to society,
           for a defenceless child has become his prey. In our considered
           opinion, there are no mitigating circumstances."
         6. The above quoted observations of this Court in Judgment under
 H review show that the aggravating facts were considered in paragraphs
 VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                                863
             [UDAY UMESH LALIT, J.]

58 and 60 and the entirety of the matter including the mitigating A
circumstances were dealt with more particularly in paragraph 61. The
;:ggravating facts not Only showed the extreme depravity but in the opinion
,'lfthis Court they brought to the fore the diabolical and barbaric manner
in which the crime was committed. The Court did not find any mitigating
circumstances in favour of the accused to tilt the balance in his favour
                                                                            B
for awarding lesser punishment.
      7. At this juncture, it may be noted that the decision of this Court
in Machhi Singh (supra) shows that after having laid down oft-quoted
principles, this Court considered individual cases of accused Machhi
Singh, Jagir Singh and Kashmir Singh. As regards Machhi Singh, it was
observed in paragraph 42:-                                                    C
      " ....... The offence committed was of an exceptionally depraved
      and heinous character. The manner of its execution and its design
      would put it at the level of extreme atrocity and cruelty.
                The crime committed carries features which could be D
      utterly horrendous especially when we know the weapons and
      the manner of their use. The victims could offer no resistance to
      the accused appellants. The law clamours for a sterner sentence; ·
      the crime being heinous, atrocious and cruel.
      ........The crime was gruesome and cold-blooded revealing the           E
      propensity of the accused appellants to commit murder."
Similarly as regards Jagir Singh it was observed,
      " ....... The crime committed carries features which could be utterly
      horrendous especially when we know the weapons and their
      manner of use. The victims could offer no resistance to the accused     F
      appellants. The la w clamours for a sterner sentence; the crime
      being heinous, atrocious and cruel.
       ......... The helpless state of the victims and the circumstances
       of the case lead us to confirm the death sentence."
       8. Further, paragraphs 44 and 45 show that one of the accused G
namely Kashmir Singh had caused the death of a defenceless child of
six years and the matter as regards said accused Kashmir Singh in
particular and with regard to all the accused in general, was dealt with
as under:-
                                                                              H
864           SUPREME COURT REPORTS                         [2017] 3 S.C.R.



A           "44. Insofar as appellant Kashmir Singh s/o Arjan Singh is
           concerned death sentence has been imposed on him by the Sessions
           Court and confirmed by the High Court for the following reasons:
            Similarly, Kashmir Singh appellant caused the death of a child
           Balbir Singh aged six years while asleep, a poor defenceless life
B          put off by a depraved mind reflecting grave propensity to commit
           murder.
           45. We are of the opinion that insofar as these three appellants
           are concerned the rarest ofrare cases rule prescribed in Bachan
           Singh case is clearly attracted and sentence of death is called
 c         for. We are unable to persuade ourselves that a sentence of
           imprisonment for life will be adequate in the circumstances of the
           crime. We therefore fully uphold the view concurrently taken by
           the Sessions Court and the High Court that extreme penalty of
           death requires to be imposed on appellants (1) Machhi Singh (2)
           Kashmir Singh s/o Arjan Singh (3) Jagir Singh. We accordingly
 D         confirm the death sentence imposed on them and dismiss their
           appeals."
          9. The assessment and the consideration bestowed by this Court
   in Machhi Singh (supra) shows that the aggravating circumstances
   namely the manner in which the crime was committed, the brutality and
 E barbaric manner of execution, the status and helplessness of victims and
   the fact that the crime was gruesome and cold blooded were given due
   weightage. These facts themselves were found to be tilting t!ie balance
   against the concerned accused. In the present case a minor girl of four
   years was raped and battered to death by the petitioner. The brutality
 F and diabolical nature of the crime and the fact that the victim had reposed
   trust and confidence in the petitioner was taken into account and this
   Court found the aggravating circumstances completely outweighing the
   other factors. The evidence and circumstances were dealt with in the
   Judgment under review in great detail and this Court had no hesitation in
   affirming the death sentence.
 G
           I 0. In the present Review Petition, Mr. An up Bhambhani, learned
    Senior Advocate appearing for the petitioner, at the outset, raised a
   grievance that in the light of principles laid down in Bachan Singh and
   Machhi Singh (supra) mitigating factors ought to have been taken into
    account and that proper and effective hearing in that behalf was not
 H
 VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                               865
             [UDAY UMESH LAUT, J.]

extended to the petitioner. This Court therefore by Order dated 31.08.2016 A
pennitted the petitioner to file material to indicate mitigating factors for
conversion of the death sentence to life imprisonment. This was in
keeping with the principles laid down by this Court in Dagdu and Others
v. State ofMaharashtra 6 wherein three Judge Bench of this Court had
observed:-
                                                                             B
      "79 .....The Court, on convicting an accused, must unquestionably
      hear him on the question of sentence. But if, for any reason, it
      omits to do so and the accused makes a grievance of it in the
      higher court, it would be open to that Court to remedy the breach
      by giving a hearing to the accused on the question of sentence."
                                                                             c
      80 ........ For a proper and effective implementation of the
      provision contained in Section 235(2), it is not always necessary
      to remand the matter to the court which has recorded the
      conviction ...... Remand 'is an exception, not the rule, and ought
      therefore to be avoided as far as possible in the interests of
      expeditious, though fair, disposal of cases."                      D
      11. The petitioner thereafter filed Crl.M.P. Nos.16369-70of2016
placing on record certain facts and material. It was submitted :-
      "Education and Activities undertaken· by the Petitioner in
      Jail                                                                   E
      i) The Petitioner submits that he had to discontinue school after
          class 61h during childhood. Thereafter he worked in various
         jobs such as electrician, construction labourer, nursery worker,
          security guard. Death row prisoners in Maharashtra are not
          pennitted to work, but the Petitioner as an undertial has worked   F
          in the jail nursery. During incarceration, the Petitioner has
          undertaken studies, art competitions as well as several
          programmes aimed at refonning himself. The Petitioner's
          counsel is informed that his drawings are exhibited in jail as
          well.
                                                                             G
      ii) The Petitioner has in 2015 successfully completed the Bachelors
          Preparatory Programme offered by the Indira Gandhi National
          Open University. This course enables people who have
          discontinued schooling before matriculation to prepare for
'(1977) 3 sec 68
                                                                             H
866             SUPREME COURT REPORTS                         [2017) 3 S.C.R.


A               bachelors-level studies.
              iii) The Petitioner in 2015 also successfully completed the Gandhi
                  Vichar Pariksha (Examinaiton on @andhian Thoughts). This
                  examination seeks to rehabilitate prisoners who have committed
                  violent crimes, by learning from the life and teaching ofM.K.
 B                Gandhi. The course includes classes on the teachings ofM.K.
                  Gandhi, reading his autobiography, and a descriptive exam.
              iv) The Petitioner is quite proficient in drawing and has also
                 participated in a drawing competition organized by the Nagpur
                 Municipal Corporation and Kalajam Foundation on l 0.01.2016.
 c            v) It is therefore submitted that the Petitioner is on the path to
                 reformation and rehabilitation and therefore the death sentence
                 imposed on liim deserves to be commuted to imprisonment for
                 life."
          The application then set out that the Disciplinary Record of the
 D Petitioner in Jail was without any blemish and that there were no criminal
   antecedents.
           12. The matter was thereafter posted for hearing. Mr. Anup
      Bhambhani, learned Senior Advocate principally submitted:-
              a. The judgment of conviction and order of sentence were passed
 E
              by the trial court on the same day namely on 23.02.2012 which
              was completely opposed to the law laid down by this Court in
              Allauddin Mian and Others v. State of Bihar7 and against the
              spirit of Section 235(2) of the CrPC.
              b. As laid down in para 206 of Bachan Singh (supra) "the
 F
              probability that the accused can be reformed" was an important
              facet and the burden was on the State to prove by evidence that
              the accused could not possibly be reformed. However, such burden
              was not discharged by the State and no evidence was led. In the
              absence of such evidence by the State, no death sentence could
 G            be awarded or confirmed.
             13. Para 10 of the decision of this Court in Allauddin Mian v.
      State ofBihar (supra) on which reliance was placed, is to the following
      effect:-
      1   (1989) 3 secs
 H
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                             867
            [UDAY UMESH LAUT, J.]

   10. Even a casual glance at the provisions of the Penal Code will      A
   show that the punishments have been carefully graded
   corresponding with the gravity of offences; in grave wrongs the
   punishments prescribed are strict whereas for minor offences
   leniency is shown. Here again there is considerable room for
   manoeuvre because the choice of the punishment is left to the          B
   discretion of the judge with only the outer limits stated. There are
   only a few cases where a minimum punishment is prescribed.
   The question then is what procedure does the judge follow for
   determining the punishment to be imposed in each case to fit the
   crime? The choice has to be made after following the procedure
   set out in sub-section (2) of Section 235 of the Code. That sub-       C
   section reads as under:
      If the accused is convicted, the judge shall, unless he proceeds
      in accordance with the provisions of Section 360, hear the
      accused on the question of sentence, and then pass sentence
      on him according to law.                                            D
   The requirement of hearing the accused is intended to satisfy the
   rule of natural justice. It is a fundamental requirement of fair play
   that the accused who was hitherto concentrating on the pn~secution
   evidence on the question of guilt should, on being found guilty, be
   asked ifhe has anything to say or any evidence to tender on the E
   question of sentence. This is all the more necessary since the
   courts are generally required to make the choice from a wide
   range of discretion in the matter of sentencing. To assist the court
   in determining the correct sentence to be imposed the legislature
   introduced sub-section (2) to Section 235. The said provision
   therefore satisfies a dual purpose; it satisfies the rule of natural F
   justice by according to the accused an opportunity of being heard
   on the question of sentence and at the same time helps the court
   to choose the sentence to be awarded. Since the provision is
   intended to give the accused an opportunity to place before the
   court all the relevant material having a bearing on the question of G
   sentence there can be no doubt that the provision is salutary and
   must be strictly followed. It is clearly mandatory and should not
   be treated as a mere formality. Mr Garg was, therefore, justified
    in making a grievance that the trial court actually treated it as a
    mere formality as is evident from the fact that it recorded the
                                                                         H
868      SUPREME COURT REPORTS                           [2017] 3 S.C.R.


A      finding of guilt on 31-3-1987, on the same day before the accused
       could absorb and overcome the shock of conviction they were
       asked if they had anything to say on the question of sentence and
       immediately thereafter the decision imposing the death penalty on
       the two accused was pronounced. In a case of life or death as
       stated earlier, the presiding officer must show a high decree of
B
       concern for the statutory right of the accused and should not treat
       it as a mere formality to be crossed before making the choice of
       sentence. If the choice is made, as in this case, without giving the
       accused an effective and real opportunity to place his antecedents,
       social and economic background, mitigating and extenuating
c      circumstances, etc., before the court, the court's decision on the
       sentence would be vulnerable. We need hardly mention that in
       m'any cases a sentencing decision has far more serious
       consequences on the offender and his family members than in the
       c~se of a purely administrative decision; a fortiori, therefore, the
       principle of fair play must apply with greater vigour in the case of
D
       the former than the latter. An administrative decision having civil
       consequences, iftaken without giving a hearing is generally struck
       down as violative of the rule of natural justice. Likewise a
       sentencing decision taken without following the requirements of
       sub-section (2) of Section 235 of the Code in letter and spirit
E      would also meet a similar fate and may have to be replaced by an
       appropriate order. The sentencing court must approach the question
       seriously and must endeavour to see that all the relevant facts
       and circumstances bearing on the question of sentence are brought
       on record. Only after giving due weight to the mitigating as well
       as the aggravating circumstances placed before it, it must
 F
      ·pronounce the sentence. We think as a general rule the trial courts
       should after recording the conviction adjourn the matter to a future
       date and call upon both the prosecution as well as the defence to
       place the relevant material bearing on the question of sentence
       before it and thereafter pronounce the sentence to be imposed on
 G     the offender. In the present case, as pointed out earlier, we are
       afraid that the learned trial Judge did not attach sufficient
       importance to the mandatory requirement of sub-section (2) of
       Section 235 of the Code."
       14. Sub-section (2) of Section 235 ofCr.P.C. obliges the Court to
H
 VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                              869
             [UDAY UMESH LAUT, J.]

hear the accused on the question of sentence and normally it is expected A
that after recording the conviction, the matter be adjourned to a future
date calling upon both the prosecution as well as the defence to place
relevant material having bearing on the question of sentence. The effect
ofrecording of the conviction and imposition of death sentence on the
same day, was also considered by a bench of three learned Judges of B
this Court in Malkiat Singh and others v. State of Punjab8 • In that
case, this Court did not deem it expedient to remand the matter after six
years and converted_ the sentence of death to imprisonment for life. It
was observed:-
      "18. On finding that the accused committed the charged offences,
      Section 235(2) of the Code empowers the Judge that he shall           C
      pass sentence on him according to law on hearing him. Hearing
      contemplated is not confined merely to oral hearing but also
      intended to afford an opportunity to the prosecution as well as the
      accused to place before the court facts and material relating to
      various factors on the question of sentence, and if interested by     D
      either side, to have evidence adduced to show mitigating
      circumstances to impose a lesser sentence or aggravating grounds
      to impose death penalty. Therefore, sufficient tiine must be given
      to the accused or the prosecution on the question of sentence, to
      show the grounds on which the prosecution may plead or the
      accused may show that the maximum sentence of death may be            E
      the appropriate sentence or the minimum sentence of life
      imprisonment may be awarded, as the case may be. No doubt the
      accused declined to adduce oral evidence. But it does not prevent
      to show the grounds to impose lesser sentence on A-I. This Court
      in the aforestated Allauddin and Anguswamy9 cases held that           F
      the sentence awarded on the same day of finding guilt is not in
      accordance with the law. That would normally have the effect of
      remanding the case to the Special Court for reconsideration. But
      in the view of the fact thatA-1 was in incarceration for long term
      of six years from the date of conviction, in our considered view it
     _needs no remand for further evidence. It is sufficient that the       G
       sentence of death awarded to A-I is converted into rigorous
       imprisonment for life. The sentences of death is accordingly
       modified andA-1 is sentenced to undergo rigorous imprisonment
 • (1991) 4 sec 341
 • (1989) 3 sec 33                                                          H
870           SUPREME COURT REPORTS                           [2017) 3 S.C.R.


A          for life for causing the deaths of all four deceased."
        15. In a recent Judgment rendered by three learned Judges of this
  Court in B.A. Umesh v. High Court of Karnataka 10, the facts were
  more or less similar, in that no separate date for hearing on sentence
  was given after recording conviction. Para 8 of that decision of this
B Court is quoted for ready reference:-
           "8. In addition to above, it is contended on behalf of the petitioner
           (Review Applicant) that since no separate date for hearing on
           sentence was given in the present case by the trial court, as such
           for violation of Section 235(2) Cr.P.C., the sentence of death cannot
c          be affirmed. We have considered the argument of Ms. Suri. It is
           true that the convict has a right to be heard before sentence.
           There is no mandate in Section 235(2) Cr.P.C. to fix separate
           date for hearing on sentence. It depends on the facts and
           circumstances as to whether a separate date is required for hearing
           on sentence or parties feel convenient to argue on sentence on
D          the same day. Had any party pressed for separate date for hearing
           on the sentence, or both of them wanted to be heard on some
           other date, situation could have been different. In the present case,
           the parties were heard on sentence by both the courts below, and
           finally by this Court, as is apparent from the Judgment under
 E         review. As such, merely for the reason that no separate date is
           given for hearing on the sentence, the Review Petition cannot be
           allowed."
          This Court then relied on the principle laid down in Dagdu v.
    State of Maharashtra (supra) which was followed subsequently by
 F another Bench of three learned Judges in Tarlok Singh v. State of
    Punjab 11• In the circumstances; merely because·no separate date was
    given for hearing on sentence, we cannot find the entire exercise to be
    flawed or vitiated. Since we had allowed the petitioner to place the
   ,relevant material on record in the light of the principles laid down in
    Dagdu v. State of Maharashtra (supra), we will proceed to consider
 G the material so placed on record and weigh these factors and the
    aggravating circumstances as found by the Court in the Judgment under
    review.
            16. However, before such consideration we must deal with the
      10
         (2016) 9 SCALE 600
H     11
         (1977) 3 sec 21s
 VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA . 871
             [UDAY UMESH LAUT, J.]

second submission advanced by Mr. Bhambhani, learned Senior A
Advocate. In his submission, in terms of paragraph 206 of the decision
of this Court in Bachan Singh (supra) the burden was upon the State in
respect of conditions (3) and (4 ), which burden was not discharged at
all. Consequently, according to him, the sentence of death would be
required to be converted to life imprisonment. Paragraph 206 of the B
decision of this Court in Bachan Singh (supra) detailed certain mitigating
circumstances and while dealing with conditions (3) and (4), this Court
observed that it would be for the State to prove by evidence that the _
accused did not satisfy conditions (3) and (4). However, subsequent
paragraphs show that those circumstances would certainly be relevant
and great weight be attached to them but it was the cumulative effect of C
the mitigating circumstances on one hand and the aggravating facts on
the other, which would be weighed to come to the final conclusion whether
the case satisfied the requirement of being "rarest_ of rare''. -It is not as
if mere failure on part of the State to lead such evidence would clinch
the issue in favour of the accused.
                                                                              D
        17. Mr. Bhambhani, learned Senior Advocate then relied on the
decision of this Court in Rajeslz Kumar v. State through Government
of NCT of Delhi12 , particularly paragraphs 73 and 74 thereof which
paragraphs are as under:
         "73. In the instant case the State has failed to show that the          E
          appellant is a continuing threat to the society or that he is beyond
          reform and rehabilitation. On the other hand, in para 77 of the
         ·impugned judgment the High Court observed as follows:
                   "We have no evidence that the appellant is ineapab.le of
         being rehabilitated in society. We also have no evidence that he is     F
         capable of being rehabilitated in society. This circumstance remains
         a neutral circumstance."                                         ·
         74. It is clear from the aforesaid finding of the High Court that
         there is no evidence to show that the accused is incapable of
         being reformed or rehabilitated in the society and the High Court G
         has considered the same as a neutral circumstance. In our view
         the High Court was clearly in error. The very fact that the accused
         can be rehabilitated in the society and is capable of being reformed,
         since the State has not given any evidence to the contrary; is
 12
      (2011) 13sec106
                                                                                 H
872            SUPREME COURT REPORTS                           [2017] 3 S.C.R.


 A          certainly a mitigating circumstance and which the High Court has
            failed to take into consideration. The High Court has also failed to
            take into consideration that the appellant is not a continuing threat
            to the society in the absence of any evidence to the contrary.
            Therefore, in para 78 of the impugned judgment, the High Court,
            with respect, has taken a very narrow and a myopic view of the
 B
            mitigating circumstances about the appellant. The High Court has
            only considered that the appellant is a first time offender and he
            has a family to look after. We are, therefore, constrained to observe
            that the High Court's view of mitigating circumstances has been
            very truncated and narrow insofar as the appellant is concerned."
 c         The discussion shows that this Court found that mitigating
   circumstances in favour of the appellant were not properly considered
   and in the ultimate analysis the case did not satisfy being "rarest of rare"
   and therefore, this Court substituted the sentence of imprisonment for
   life to that of death sentence. The discussion in paragraphs 73 and 74
 D does not indicate that in the absence of any evidence led by the State in
   connection with conditions (3) and (4) as stated in paragraph 206 of
   Bachan Singh (supra), the entire exercise gets vitiated and the matter
   must always be answered in favour of the accused. It is undoubtedly a
   relevant consideration which will be weighed by' the Court together with
   other circumstan_ces on record. We, therefore, do not find any merit in
 E the second submission.
            18. In Ramnaresh and Others v. State of Clthattisgarh 13 this
      Court considered the import of governing principles regarding death
      sentence and summed up that it is the cumulative effect of both the
      aggravating and mitigating circumstances that need to be taken into
. F
      account. Paragraphs 76 to 81 of the decision are as under:-
            "76. The law enunciated by this Court in its recent Judgments, as
            already noticed, adds and elaborates the principles that were stated
            in Bachan Singh and thereafter, in M achhi Singh~ The aforesaid
            Judgments, primarily dissect these principles into two different
 G          compartments--<me being the "aggravating circumstances" while
            the other being the "mitigating circumstances". The court would
            consider the cumulative effect ofboth these aspects and normally,
            it may not be very appropriate for the court to decide the most
            significant aspect of sentencing policy with reference to one of
 H    " c2012J 4 sec 251             "
     VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                            873
                 [UDAY UMF;SH LAUT, J.]

        the classes under any of the following heads while completely         A
        ignoring other classes under other heads. To balance the two is
        the primary duty of the court. It will be appropriate for the court
        to come to a final conclusion upon balancing the exercise that
        would help to administer the criminal justice system better and
        provide an effective and meaningful reasoning by the court as         B
        contemplated under Section 354(3) Cr.P.C.
        Aggravating circumstances
        (1) The offences relating to the commission of heinous crimes
        like murder, rape, armed dacoity, kidnapping, etc. by the accused
        with a prior record of conviction for capital felony 'or offences     c
        committed by the person having a substantil!l history of se~ious
        assaults and criminal-eonvictions.
        (2) The offence was committed while the offender was engaged
        in the commission of another serious offence.
         (3) The offence was committed with the intention to create a D
         fear psychosis in the public at large and was committed in a public
         place by a weapon or device which clearly could be hazardous to··
       · the life of more than one person.
        ( 4) The offence of murder was committed for ransom dr like
"-      offences to receive money onnonetary benefits.                        E
        (5) Hired killings.
        ( 6) The offence was committed outrageously for want only while.
        involving inhumane treatment and torture to the victim.
        (7) The offence was committed by a person. while in ·lawful           F
        custody.                           ·
        (8) The murder or the offence was committed to prevent a person
        lawfully carrying out his duty like arrest or custody in a place of
        lawful confinement of himself or another. For instance, murder is
        of a person wbo had acted in lawful discharge of his duty under       G.
        Section 43 CrPC.
        (9) When the crime is enormous in proportion like making an
        attempt of murder of the entire family or members of a particular
        community.
                                                                              H
874      SUPREME COURT REPORTS                          [2017] 3 S. C.R.


A     (JO) When the victim is innocent, helpless or a person relies upon
      the trust of relationship and social norms, like a child, helpless
      woman, a daughter or a niece staying with a father/uncle and is
      inflicted with the crime by such a trusted person.
      (11) When murder is committed for a motive which evidences
B     total depravity and meanness.
      (12) When there is a cold-blooded murder without provocation.

      (I 3) The crime is committed so brutally that it pricks or shocks
      not only the judicial conscience but even the conscience of the
      society.
 c
      Mitigating circumstances
      (1) The manner and circumstances in and under which the offence
      was committed, for example, extreme mental or emotional
      disturbance or extreme provocation in contradistinction to all these
 D
      situations in normal course.
      (2) The age of the accused is a relevant consideration but not a
      determinative factor by itself.
      (3) The chances of the accused ofnot indulging in commission of
      the crime again and the probability of the accused being reformed
 E    and rehabilitated.
      (4) The condition of the accused shows that he was mentally
      defective and the defect impaired his capacity to appreciate the
      circumstances of his criminal conduct.
      (5) The circumstances which, in normal course oflife, would render
 F    such a behaviour possible and could have the effect of giving rise
      to mental imbalance in that given situation like persistent
      harassment or, in fact, leading to such a peak of human behaviour
      that, in the facts and circumstances of the case, the accused
      believed that he was morally justified in committing the offence.
 G    (6) Where the court upon proper appreciation of evidence is of
      the view that the crime was not committed in a preordained manner
      and that the death resulted in the course of commission of another
      crime and that there was a possibility of it being construed as
      consequences to the commission of the primary crime.
 H
VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                                 875
            [UDAY UMESH LAUT, J.]

   ( 7) Where it is absolutely unsafe to rely upon the testimony of a         A
   sole eyewitness though the prosecution has brought home the guilt
   of the accused.
   77. While determining the questions relatable to sentencing policy,
   the co mi has to follow certain princi pies and those principles are
   the loadstar besides the above considerations in imposition or             B
   otherwise of the death sentence.
   Principles
   (1) The court has to apply the test to determine, if it was the
   "rarest of rare" case for imposition of a death sentence.
                                                                              c
   (2) In the opinion of the co mi, imposition of any other punishment
   i.e. life imprisonment would be completely inadequate and would
   not meet the ends of justice.
   (3) Life imprisonment is the rule and death sentence is an
   exception.
                                                                              D
   (4) The option to impose sentence of imprisonment for life cannot
   be cautiously exercised having regard to the nature and
   circumstances of the crime and all relevantconsiderations.
   (5) The method (planned or otherwise) and the manner (extent of
   brutality and inhumanity, etc.) in which the crime was committed           E
   and the circumstances leading to commission of such heinous
   crime.
   78. Stated broadly, these are the accepted indicators for the
   exercise of judicial discretion but it is always preferred not to
   fetter the judicial discretion by attempting to make the excessive         F
   enumeration, in one way or another. In other words, these are the
   considerations which may collectively or otherwise weigh in the
   mind of the court, while exercising its jurisdiction. It is difficult to
   state it as an absolute rule. Every case has to be decided on its
   own merits. The judicial pronouncements, can only state the
   precepts that may govern the exercise of judicial discretion to a          G
   limited extent. Justice may be done on the facts of each case.
   These are the factors which the court may consider in its
   endeavour to do complete justice between the parties.
    79. The court then would draw a balance sheet of aggravating
                                                                              H
,876           SUPREME COURT REP'oRTS                         [2017) 3 S.C.R.
   .,

 A          and mitigating circumstances. Both aspects have to be given their
            respective weightage. The ~ourt has to strike a balance between
            the two and see towards which side the scale/balance of justice
            tilts. The principle of proportion between the crime and the
            punishment is the principle of "just deserts" that serves as the
            foundation of every criminal sentence that is justifiable. In other
 B
            words, the "doctrine of proportionality" has a valuable application
            to the sentencing policy under the Indian criminal jurisprudence.
            Thus, the court will not orily have to examine what is just but also
            as to what the accused deserves keeping in view the impact on
            the society at large,
 c          80. Every punishment imposed is bound to have its effect not
            only on the accused alone, but also on the society as a whole.
            Thus, the courts should consider retributive and cleterrent aspect
            of punishment while imposing the extreme punishment of death.
            81. Wherever, the offence which is committed, manner in which
 D          it is committed, its attendant circumstances and the motive and
            status of the victim, undoubtedly bring the case within the ambit
            of"rarest of rare" cases and the court finds that the imposition of
            life imprisonment would be inflicting of inadequate punishment,
            the court may award death penalty. Wherever, the case falls in
  E         any of the exceptions to the "rarest of rare" cases, the court may
            exercise its judicial discretion while imposing life imprisonment in
            place of death sentence." ·
           19. It is thus well settled, "the Court would consider the cumulative
    effect of both the aspects (namely aggravating factJrs as well as
  F mitigating circumstances) and it may not be very app•·Jpriate for the
    Court to decide the most significant aspect of sentencing policy with
    reference to. one of the classes completely ignoring other classes under
    other heads and it is the primary duty of the Court to balance the two."
    Further, "it is always preferred not to fetter the judicial discretion by
    attempting to make excessive enumeration, in one way or another; and
  G that both aspects namely aggravating and mitigating circumstances have
    to be given their respective weightage and that the Court has to strike
    the balance between the two and see towards which side the scale/
    balance ofjustice tilts." With these principles in mind we now consider
    the present review petition.
  H
   VASANTA SAMPAT DUPARE v. STATE OF MAHARASHTRA                                    877
               [UDAY UMESH LAUT, J.]

         20. The material placed on record shows that after the Judgment            A
  under review, the petitioner has completed Bachelors Preparatory
  Programme offered by the Indira Gandhi National Open University
  enabling him to prepare for Bachelor level study and that he has also
  completed the Gandhi Vichar Pariksha and had participated in drawing
  competition organized sometime in January 2016. It is asserted that the           B
  jail record of the petitioner is without any blemish. The matter is not
  contested as regards Conditions l, 2, 5, 6 and 7 as stated in paragraph
· 206 of the decision in Bachan Singh (supra) but what is now being
  projected is that there is a possibility of the accused being reformed and
  rehabilitated. Though these attempts on part of the petitioner are after
  the Judgment under review, we have considered the material in that                C
  behalf to see if those circumstances warrant a different view. We have
  given anxious consideration to the material on record but find that the
  aggravating circumstances namely the extreme depravity and the barbaric
  manner in which·the crime was committed and the fact that the victim
  was a helpless girl of four years clearly outweigh the mitigating                 D
  circumstances now brought on record. Having taken an overall view of
  the matter, in our considered view, no case is made out to take a different
  view in the matter. We, therefore, affirm the view taken in the Judgment
  under review and dismiss the present Review Petitions.


  Devika Gujral                                       Review Petitions dismissed.