Vs. State (N.C.T. of Delhi)  INSC 637 (11 December 2000)
D.P. Mohapatra, J.
the accused in Sessions Case No.134 of special leave challenging the judgment
passed by the High Court of Delhi in Murder Ref.No.5/97 and Crl. Appeal
No.305/97 confirming sentence of death passed against him by the Additional
Sessions Judge, Shahdara, Delhi. This court, by the order dated 22.1.99 granted
leave confined to the question of sentence and further directed execution of
death sentence be stayed during pendency of the appeal. Thus the matter to be
considered in the case relates to sentence only. The question for determination
is whether, on the facts and in the circumstances appearing from the materials
on record the trial Court and the High Court were right in imposing death
sentence against the appellant. The answer to this question depends on the
finding whether the case can be classified as a rarest of rare cases for
imposition of the maximum penalty of death. The facts of the case relevant for
the determination of the question may be stated thus: The appellant Mohd.Chaman
was aged thirty years at the time of the incident and the victim girl Kumari Ritu
(deceased) was aged one and half years then. Bindu Shah (PW-4), father of the
deceased along with his wife Smt.Lalita (PW-2) and two daughters Soni and Ritu
used to reside in House No.5416/6, Gali No.4, Shakti Gali, Amar Mohalla, Raghupura,
Gandhi Nagar. Bindu Shah was running a tailoring factory near his house. The
appellant was residing in the same house in a room adjacent to the room of Bindu
Shah. On 10-4-95 at about 7.30 p.m. when Bindu Shah was in his factory, Smt.Lalita left
her two daughters in the care of a neighbour and went out for marketing. On her
return Smt.Lalita did not find Ritu in the house. She made a search in the
locality nearby and sent her elder daughter to call her brother Vidya Nand Sagar
(PW-7). Vidya Nand Sagar accompanied by Shankar (PW- 15) reached the house of Smt.Lalita
and made some search for Ritu but did not find her. However, Smt.Lalita found
the room of the appellant half open and on peeping into it saw Ritu lying on
the floor and the appellant present in the room. On seeing Smt.Lalita, the
appellant picked up Ritu from the floor in her unconscious state and handed her
over to Smt.Lalita. At that time the mother found that Ritu was without
undergarment (kaccha) and was wearing a frock. She observed several bleeding
teeth bite marks on the cheek and other parts of the body of Ritu. On her query
about the condition of Ritu the appellant told her to go away silently
otherwise she would also meet the same fate and the Police could do nothing
against him. Thereafter Smt.Lalita rushed to the factory of her husband. The
parents took Ritu to a doctor who advised them to take her immediately to a
was taken to Surya Hospital where she was declared brought dead by the doctor. In the
meantime some people who had collected at the place of occurrence, kept the
appellant under close guard till sub-inspector Magan Singh (PW-16) of Gandhi Nagar
Police Station reached the spot and took control of the situation. Soon
thereafter SHO, N.S.Khan (PW-20) arrived at the scene of occurrence on
receiving information about the incident. The police officers were told by the
persons at the spot that the appellant had raped and killed Ritu. SHO N.S.Khan
took the investigation. He noticed that there were teeth bite marks on the
breast, neck, abdomen and thighs of the deceased. He also observed that private
parts of the deceased were swollen. He recorded the statement of Smt.Lalita,
mother of the deceased and that statement was treated as the FIR of the case.
Ex-PW 3/A, post-mortem report was prepared by Dr.K.Goel (PW-3), who found the
following external and internal injuries on the body of Ritu:- External: 1.
bite marks in the form of two linear, semi-linear marks with intermittently
placed abrasions. These marks are
cm. long, placed 2.5 cm. apart with thejr concavity facing each other over Rt.
Cheek near Rt. angle of mouth.
Abrasion 1.7 x 0.6 cms. Over chin. 3. One oval bruise having width of about 6
mm. With central pale area with dimensions 4.5 x 4 cm. & an another same
bruise of same width overlapping lower point of previous one having dimensions
about 5 x 4 cm. Both are present over Rt. Side of abdomen at upper part.
Oval bruise about 6.5 mm. Diameter c central pale area c dimensions 5.5 cm. x
4.5 cm. c two small abrasion marks at periphery each about 3 mm. Size at 4
& 5 O clock position.
Small abrasions with bruising in the vaginal wall at 4, 5 and 6 Oclock
positions. Hymen is partially torn admitting two fingers, small tear present
over posterior fornix. Small blood clots present over injured parts in the
Head Scalp tissues, bones intact, meninges and brain matter intact and NAD and
All structures are intact. No extra vasation of blood.
Rib cage intact. Heart and Lungs intact and NAD.
Rt.lobe of liver is badly lacerated with vertical deep laceration. Large amount
of blood and clots present in peritonial cavity and around liver.
and kidneys intact and pale.
contains small amount of semi-digested food having no abnormal small and NAD.
Intact. Bladder and Rectum empty.
Intact. Uterus empty and NAD.
sample, vaginal swab, rectal swab, swam from surrounding area of genitalia and
swab from injury sides are preserved sealed and handed over to the police.
All injuries were ante-mortem in nature.
no.1 is love bite marks. Injury no.3 and 4 (pattern bruises) are probably as a
result of impact of some object of the shape described in the injuries.
Injuries to genitalia are caused during sexual assault. Injury to the liver is
caused by application of blunt forch and is sufficient to cause death in
ordinary course of nature.
of death is haemorrhagic shock consequent to liver injury.
since death is about 19 hours.
completion of the investigation the charge-sheet was submitted against the
appellant of having committed the offences of murder and rape punishable under
Sections 302/376 of the Indian Penal Code. The case against the appellant was
based on circumstantial evidence only. The circumstances which have emerged
from testimony of the relevant witnesses, like, PWs 2, 3, 4, 7, 10, 15, 19 and
PW- 20 are the following: 1. On 10.4.1996 at 7.30 p.m.
PW-2 left her two daughters, namely, Soni and Ritu in the care of a neighbour
and went out for marketing.
10 and PW 15 saw the accused taking Ritu to his room.
When at 7.45 p.m. on that very date Smt.Lalita
returned, she found Ritu missing.
sent her elder daughter Soni to fetch her brother Vidya Nand Sagar, PW7.
search for Ritu was made by Smt.Lalita and Vidya Nand Sagar in the vicinity.
peeped into the room of the accused and found Ritu lying on the floor and the
accused present there.
query made by Smt.Lalita, the accused handed over the body of Ritu to her and
when she made injuries about the condition of the girl, the accused told her to
go away otherwise she would also meet the same fate and that Police could not
do anything against him.
took Ritu to her husband Bindu Shah, who was working in his tailoring factory.
Nand Sagar, PW 7 remained standing near the door of the room of the accused, who
remained in his room.
Several persons collected at the place of occurrence and held the accused.
Shah, took Ritu to a neighbouring Doctor, who told him to take her to a
Shah took Ritu to Surya Hospital where she was declared brought dead at 8.15 p.m.
Shah along with his wife returned to the place of occurrence with the dead body
16 SI Magan Singh arrived at the place of occurrence and found the accused in
the custody of some persons outside the room and that the persons were shouting
that the accused had raped Ritu inside his own room and had killed her. He
controlled the scene and took the accused in his custody.
20, N.S.Khan, SHO of the police station and the IO of this case, on receiving
information about this case, reached the place of occurrence at 9.35 p.m. on that very day and found a large crowd having
gathered there and shouting that the accused present there had committed rape
and murder of Ritu. He took the accused in custody and sent him to the police
station with police escort for safety.
13, Dr.K.Goel, who performed the post-mortem examination opined that the
incident took place on 10.4.1995 around 7.45 p.m.
learned trial Judge on appreciation of the evidence in the case in the light of
settled principles for judging a case based on circumstantial evidence, held
that the prosecution has succeeded in establishing the guilt of the accused and
accordingly convicted him under Sections 302 and 376 IPC. Regarding the
sentence the court considered the relevant aspects of the case like the
appellant being a neighbour of the family of the deceased; that during the
temporary absence of the mother of the child (deceased) from the house had
taken over her (deceased) to his room where he committed the barbaric act of
rape on the innocent child aged one and half years and in the process of
committing rape inflicted injuries on her liver which resulted in death of the
child. The learned trial Judge while sifting the relevant materials on record
referred to the principles laid down by this Court in the case of Bachan Singh
vs. State of Punjab (1983 (3) SCC 470), Kamta Tiwari v. State of MP Vol.III
(1996) CCR, SC page 141, Laxman Naik v. State of Orissa, Vol.III (1994) SCC
page 381, and came to the conclusion that it is fit case in which the extreme
penalty of death should be awarded. The High Court on assessing the evidence on
record held that the trial Court rightly convicted the accused of rape and
murder of Kumari Ritu. On the point of sentence the High Court observed, In the
case before us a baby girl aged about one and half years, like a growing bud of
a flower, had been a prey to the lust of a thirty years old man and had been
killed in a most revolting manner arousing intense and extreme indignation of
the community. It is an act of extreme depravity and arouses a sense of
revulsion in the mind of the common man. Such a person is menace to the
society. The facts of the case persuade us to hold that this is a rarest of the
rare cases where the sentence of death is eminently desirable. The High Court
confirmed the death penalty against the appellant.
question that arises for consideration is whether the accused in this case
deserves the harshest punishment of death. In this connection we can do no
better than take note of the observations and the formulations made by this
Court in Bachan Singh (supra). Therein a Constitution Bench of this Court after
an exhaustive discussion of the relevant provisions like sections 299,300 and
302 of the IPC, sections 235(2) and 354(3) of the Criminal Procedure Code, and
Articles 13,14,19(2) to (6) and 21 of the Constitution held, inter alia, that
the founding fathers recognised the right of the State to deprive a person of
his life or personal liberty in accordance with fair, just and reasonable
procedure established by valid law; that there are several other indications,
also, in the Constitution which show that the Constitution- makers were fully
cognizant of the existence of death penalty for murder and certain other
offences in the Indian Penal Code. This Court further observed that the mention
in the legislative list, right of Governor and President to suspend, commute or
remit death sentence and right of appeal to the Supreme Court under Article 134
show that death penalty or its execution cannot be regarded as an unreasonable,
cruel or unusual punishment. Nor can it be said to defile "the dignity of
the individual" within the preamble to the Constitution. On parity of
reasoning, it cannot be said that death penalty violates the basic structure of
the question of laying down standards and norms restricting the area of
imposition of death penalty, if by "laying down standards", it is
meant that 'murder' should be categorised beforehand according to the degrees
of its culpability and all the aggravating and mitigating circumstances should be
exhaustively and rigidly enumerated so as to exclude all free play of
discretion, the argument merits rejection. Such standardisation is well-nigh
impossible. Firstly, degree of culpability cannot be measured in each case;
secondly, criminal cases cannot be categorised, there being infinite,
unpredictable and unforseeable variations; thirdly, on such categorization, the
sentencing process will cease to be judicial; and fourthly, such standardisation
or sentencing discretion is a policy- matter belonging to the legislature
beyond the court's function.
paragraphs 176-177 of the Judgment this Court quoted with approval the
following observations of Earl Loreburn L.C. in Hyman V. Rose (1912 AC 623) :
desire in the first instance to point out that the discretion given by the
section is very wide... Now it seems to me that when the Act is so expressed to
provide a wide discretion... it is not advisable to lay down any rigid rules
for guiding that discretion. I do not doubt that the rules enunciated by the Master
of the Rolls in the present case are useful maxims in general, and that in
general they reflect the point of view from which Judges would regard an
application for relief. But I think it ought to be distinctly understood that
there may be cases in which any or all of them may be disregarded. If it were
otherwise, the free discretion given by the statute would be fettered by
limitations which have nowhere been enacted. It is one thing to decide what is
the true meaning of the language contained in an Act of Parliament. It is quite
a different thing to place conditions upon a free discretion entrusted by
statute to the court where the conditions are not based upon statutory
enactment at all. It is not safe, I think, to say that the court must and will
always insist upon certain things when the Act does not require them, and the
facts of some unforeseen case may make the court wish it had kept a free hand.
have to decide cases as they come before them, mindful of the need to keep
passions and prejudices out of their decisions. And it will be strange if, by
employing judicial artifices and techniques, we cut down the discretion so
wisely conferred upon the courts, by devising a formula which will confine the
power to grant anticipatory bail within a strait-jacket. While laying down cast
iron rules in a matter like granting anticipatory bail, as the High Court has
done, it is apt to be overlooked that even Judges can have but an imperfect
awareness of the needs of new situations. Life is never static and every
situation has to be assessed in the context of emerging concerns as and when it
arises. Therefore, even if we were to frame a 'code for the grant of
anticipatory bail', which really is the business of the legislature, it can at
best furnish broad guidelines and cannot compel blind adherence." From
what has been extracted above, it is clear that this Court should not venture
to formulate rigid standards in an area in which the Legislature so warily
treads. Only broad guidelines consistent with the policy indicated by the
legislature in Section 354(3) can be laid down. Taking note of the decision of
the Supreme Court of the USA in Gregg v.
Georgia [ 428 US 153 = 49 L Ed 859] this Court observed :
examined, it is clear that the decisions in Gregg v. Georgia and its companion cases demonstrate
the truth of what we have said earlier, that it is neither practicable nor
desirable to imprison the sentencing discretion of a judge or jury in the
strait-jacket of exhaustive and rigid standards. Nevertheless, these decisions
do show that it is not impossible to lay down broad guidelines as distinguished
from iron-cased standards, which will minimise the risk of arbitrary imposition
of death penalty for murder and some other offenses under the Penal Code."
Then this Court proceeded to consider the question of indicating the broad
guidelines which should guide the Court in the matter of sentencing a person
convicted of murder under section 302, Indian Penal Code. Making a cautious
approach, this Court observed :
we embark on this task, it will be proper to remind ourselves, against that
"while we have an obligation to ensure that the constitutional bounds are
not overreached, we may not act as judges as we might as legislatures."
Reiterating the principles laid down in Jagmohan vs.
of U.P. [(1973) 1 SCC 207)] this Court held
application of those principles is now to be guided by the paramount beacons of
legislative policy discernible from Sections 354(3) and 235(2), namely : (1) The
extreme penalty can be inflicted only in gravest cases of extreme culpability;
(2)In making choice of the sentence, in addition to the circumstances of the
offence, due regard must be paid to the circumstances of the offender also.
some of the aggravating circumstances this Court observed that: pre-planned,
calculated, cold-blooded murder has always been regarded as one of an
aggravated kind. Some other aggravations were enumerated in para 202 of the Judgement.
enumerating the circumstances, this Court added:
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." Similarly
some of the mitigating circumstances suggested by the counsel appearing in the
case were enumerated in para 206 of the Judgement :
circumstances :- In the exercise of its discretion in 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 young or old, he
shall not be sentenced to death.
The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society. (4) The probability that the
accused can be reformed and rehabilitated. The State shall by evidence prove
that the accused does not satisfy the conditions (3) and (4) above. (5)That in
the facts and circumstances of the case the accused 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 defective and that the said defect impaired
his capacity to appreciate the criminality of his conduct.
Court further observed that :
will do no more than to say that these are undoubtedly relevant circumstances
and must be given great weight in the determination of sentence. Some of these
factors like extreme youth can instead be of compelling importance. In several
States of India, there are in force special enactments, according to which a
'child', that is, 'a person who at the date of murder was less than 16 years of
age', cannot be tried, convicted and sentenced to death or imprisonment for
life for murder, nor dealt with according to the same criminal procedure as an
adult. The special Acts provide for a reformatory procedure for such juvenile
offenders or children." The views of the majority of the judges were
summed-up as follows:
are numerous other circumstances justifying the passing of the lighter
sentence; as there are countervailing circumstances of aggravation. "We
cannot obviously feed into a judicial computer all such situations since they
are astrological imponderables in an imperfect and undulating society."
Nonetheless, it cannot be over-emphasised that the scope and concept of
mitigating factors in the area of death penalty must receive a liberal and
expansive construction by the courts in accord with the sentencing policy writ
large in Section 354(3). Judges should never be bloodthirsty. Hanging of
murderers has never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, show that in the past, courts have
inflicted the extreme penalty with extreme infrequency-a fact which attests to
the caution and compassion which they have always brought to bear on the
exercise of their sentencing discretion in so grave a matter. It is, therefore,
imperative to voice the concern that courts, aided by the broad illustrative
guide-lines indicated by us, will discharge the onerous function with evermore
scrupulous care and humane concern, directed along the highroad of legislative
policy outlined in Section 354(3), viz., that for persons convicted of murder,
life imprisonment is the rule and death sentence an exception. A real and
abiding concern for the dignity of human life postulates resistance to taking a
life through law's instrumentality. That ought not to be done save in the
rarest of rare cases when the alternative option is unquestionably
foreclosed." In the case of Machhi Singh (Supra) three learned Judges of this
Court making an in-depth examination of the principles laid down in Bachan
Singh case (supra) observed that between the protagonists of the 'an eye for an
eye' philosophy who demand 'death-for- death'; the 'Humanists' on the other
hand who press for the other extreme viz., 'death-in-no- case'; a synthesis has
emerged in Bachan Singh case (supra) wherein the 'rarest-of-rare-cases' formula
for imposing death sentence in a murder case has been evolved by this Court.
This Court then took note of the problems emerging for identification of the
guidelines spelt out in Bachan Singh case in order to determine whether or not
death sentence should be imposed. Discussing the question of application of the
rarest of rare case rule to the facts of individual cases in the context of the
relevant guidelines this Court observed (at p.487-88): "The reasons why
the community as a whole does not endorse the humanistic approach reflected in
'death sentence -in-no- case' 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 realized 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 of law 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 member of the community owes a
debt to the community for this protection. When ingratitude is shown instead of
gratitude by 'killing' a member of the community which protects the murderer
himself from being killed, or when the community feels that for the sake of
self-preservation the killer has to be killed, the community may well withdraw
the protection by sanctioning the death penalty. But the community will not do
so in every case.
do so 'in rarest of rare cases' when its collective conscience is so shocked
that it will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty. The community may entertain such a
sentiment when the crime is viewed from the platform of the motive for, or the
manner of commission of the crime, or the anti-social or abhorrent nature of
the crime, such as for instance:
Manner of Commission of murder
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. For instance, (i) when the house of the victim is set aflame
with the end in view to roast him alive in the house. (ii) when the victim is
subjected to inhuman acts of torture or cruelty in order to bring about his or
the body of the victim is cut into pieces or his body is dismembered in a
fiendish manner." This Court in the background of the guidelines indicated
in Bachan Singh case (supra) formulated the following propositions for
application to the facts of each case for determination of the question (at
The extreme penalty of death need not be inflicted except in gravest cases of
Before opting for the death penalty the circumstances of the 'offender' also
require to be taken into consideration along with the circumstances of the
imprisonment is the rule and death sentence is an exception. In other words
death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, 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.
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 before the option is exercised.
order to apply these guidelines inter alia the following questions may be asked
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence? (b) Are the circumstances
of the crime such that there is no alternative but to impose death sentence
even after according maximum weightage to the mitigating circumstances which
speak in favour of the offender?" The principles laid down in Bachan Singh
case (supra) and the formulations made in Machhi Singh case (supra) as noted
earlier have been applied by this Court in different cases depending on the
facts and circumstances thereof. In 1999 (2) SC 225] this Court while
confirming the death sentence imposed on accused Dharam Pal, commuted such
sentence to life imprisonment of the co- accused, taking note of the facts that
the accused had no criminal antecedents, no possibility of continued threat to
society, he was only accompanying his brother co-accused and gave three blows
to one deceased only after his brother had given 2-3 blows to deceased. No
assault by him on other victims who were killed by his brother; This Court, in
the above case held that his case is not of "rarest of rare" nature
and hence commuted death sentence to life imprisonment. A Bench of two learned
Judges of this Court in case of Anshad and others vs. State of Karnataka [ 1984
(4) SCC 381] observed (at p.389-90):
Courts must be alive to the legislative changes introduced in 1973 through
Section 354(3) Cr.PC. Death sentence, being an exception to the general rule,
should be awarded in the "rarest of the rare cases" for 'special
reasons' to be recorded after balancing the aggravating and the mitigating
circumstances, in the facts and circumstances of a given case. The number of
persons murdered is a consideration but that is not the only consideration for
imposing death penalty unless the case falls in the category of "rarest of
the rare cases". The courts must keep in view the nature of the crime, the
brutality with which it was executed, the antecedents of the criminal, the
weapons used etc. It is neither possible nor desirable to catalogue all such
factors and they depend upon case to case.
Court in the above case, preferred to adopt the safer course and imposed the
sentence of life imprisonment on A-1 to A-3 for the offences under section
302/34 IPC and set aside the sentence of death. Coming to the case in hand, the
crime committed is undoubtedly serious and heinous and the conduct of the
appellant is reprehensible. It reveals a dirty and perverted mind of a
human-being who has no control over his carnal desires. Then the question is:
the case can be classified as of a 'rarest of rare category justifying the
severest punishment of death.
the case on the touchstone of the guidelines laid down in Bachan Singh (supra),
Machhi Singh (supra) and other decisions and balancing the aggravating and
mitigating circumstances emerging from the evidence on record, we are not
persuaded to accept that the case can be appropriately called one of the
'rarest of rare cases deserving death penalty. We find it difficult to hold
that the appellant is such a dangerous person that to spare his life will
endanger the community. We are also not satisfied that the circumstances of the
crime are such that there is no alternative but to impose death sentence even
after according maximum weightage to the mitigating circumstances in favour of
the offender. It is our considered view that the case is one in which a
humanist approach should be taken in the matter of awarding punishment.
Accordingly, the capital sentence imposed against the appellant by the Courts
below is set aside, instead the appellant shall suffer rigorous imprisonment
for life. Subject to the above modification of sentence, the appeals filed by
the accused are dismissed.